posted by Karen Czapanskiy
When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.
Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.
I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.
In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.
I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.
August 8, 2013 at 2:02 pm Tags: Caregiving, children, Disability, gender, torts Posted in: Disability Law, Feminism and Gender, Health Law, Law and Inequality, Race, Tort Law Print This Post 6 Comments
posted by Heidi Li Feldman
…forget about it. I understand that some folks must continue to fight Constitutional battles, inside and outside the courtroom, even if just to try to hold the line against Supreme Court precedents and federal legislation that encroach on the most basic interests and freedoms people need. Note that I can mention these without reference to rights. Rights – another term that legal academics of all stripes tend to obsess about to the point of distraction from considering the very goods that recognized rights foster and protect. The goods are not the rights. Rights shelter goods and interests. If they are the only form of cover your adversaries will acknowledge, then you better pitch a rights tent. If representing the good or interest as covered by a right does not help further the good or interest, then don’t use the representation. Rights and “rights” are neither objectively problematic nor objectively wonderful. What’s important is which interests and goods we decide to foster collectively, how we decide this, and whether law is a suitable social method for fostering any given worthwhile interest or good. If law is an appropriate mechanism for the task, then there are interesting empirical questions about whether the law should be strongly interventionist, requiring very specific conduct to facilitate and foster these goods or interests, or whether it should be more subtle, creating background institutions and norms which increase the chance that these goods and interests will flourish.
Now, consider areas of law that start not from rights but from duties, areas like tort (publicly created duties, originating in common law or in legislation) or contracts (privately created duties, originating at the nexus of individual agreements and legal endorsement of certains types of agreement but not others – some agreements are endorsed or disqualified by courts, some by legislatures). Not coincidentally, torts, contract, and restitution have historically been grouped together as the law of obligations, in both Anglo and Continental traditions. And not coincidentally, these bodies of law presuppose interconnectedness and relationships. The foundational or mythic state of nature that animates contracts, torts, and restitution is one that assumes that people are always and inevitably embarking on relationships, sometimes on purpose sometimes accidentally. But whether they mean to get involved with each other or not, whether they set out to affect other people or not, people connect. Connection is basic. Then the question becomes, which sort of connections engender which sorts of obligations?
Obviously, one can argue for thinner and thicker versions of legal obligation and sometimes such arguments rely on philosophical theories like liberalism (neo or otherwise) or conservativism (neo or otherwise). But it is interesting to note that reflective legal scholars and lawyers engaged (knowingly or not) in normative jurisprudence regarding the law of obligations actually tend not to invoke the usual political philosophies that undergird and drive so much of the discourse about the Constitution. A hypothesis about what why that’s so: if our starting point for thinking about and creating law is connection – the inevitable ties that will arise among social creatures – our starting point is already complicated and textured in ways that cry out for more particularistic arguments than those generated by wholesale political theories of any stripe. Political theories that start from the individual rather than the connectedness of individuals can be more general and less nuanced because it is easier to oversimplify the individual than it is to oversimplify connection. Likewise, areas of legal discourse and practice that answer to broad political theories tend to obscure particularities that matter tremendously in the course of actual lived experiences.
Mary Anne Franks’s discussion of creepshots and outing anonymous bloggers reveals the significance of starting from assumptions of connection rather than assumptions of individuality. In our culture, the rhetoric of free speech and consent is premised on a particular Constitutional background. The minute somebody invokes the phrase “free speech” they will be heard as invoking the First Amendment and the entire kit and caboodle of the Constitution. This then spills over to and colors how “consent” and “privacy” get discussed – they are understood as subordinate matters, less important than and bounded by the explicitly Constitutionally acknowledged good of free speech. It is ironic that these are the terms of the debate about an episode in an environment so often characterized as thoroughgoingly social – the web and websites where people go to interact. If we all forgot about the Constitution, very different first questions might come to mind when thinking about creepshots. Namely, who is affected by the site and how? What sort of connections does it foster or stunt? Are these connections we collectively should concern ourselves with? Should we use law to structure the connections that inevitably arise from activity on the web? If so, what do the parties (intended or unintended) in these connections owe to one another, morally, ethically, and legally?
October 24, 2012 at 12:33 am Tags: contracts, Heidi Li Feldman, law of obligations, Normative Jurisprudence, restitution, Robin West, Symposium (Normative Jurisprudence), torts Posted in: Jurisprudence, Legal Theory, Symposium (Normative Jurisprudence), Web 2.0 Print This Post No Comments
posted by Jon Siegel
I previously discussed how the Supreme Court’s Iqbal decision is going to have a big impact on federal civil litigation. Jaya Ramji-Nogales suggested that maybe it won’t have such a big impact after all. It’s still too early to say definitively who’s right, but take a look at this – Iqbal applied to a slip-and-fall case!
For those just tuning in, the Supreme Court’s decision last term in Ashcroft v. Iqbal upended some long-standing rules of pleading in civil procedure. The previous understanding was that a civil complaint — the document that by which the plaintiff starts a civil case — just had to give the defendant a general notice of what the case was about. It didn’t have to go into specifics or detail. If the plaintiff says, “I worked for the defendant and the defendant fired me because of my race or religion,” that states a sufficient claim. The plaintiff doesn’t have to say how she knows what the defendant’s motives were. Sure, the defendant is eventually entitled to that information, but it doesn’t have to be in the complaint. That’s what discovery is for.
Iqbal throws the rules into confusion. Under Iqbal, the trial court gets to disregard allegations it regards as conclusory (a term the Supreme Court didn’t clearly define) and make some judgment about whether the complaint is sufficiently plausible to require a response. Under this new regime, it’s far less clear that a one-sentence allegation about why the plaintiff got fired would be sufficient without some further allegations that show some evidentiary support. Courts have been dismissing all kinds of cases on the basis of insufficient allegations, such as this dismissal of a case in which plaintiff alleged that she took the defendant’s drug and suffered a terrible injury as a result, which got dismissed because, in the court’s opinion, the plaintiff didn’t sufficiently allege how she knew the drug caused her injury.
Now we have the ultimate in Iqbal dismissals — a dismissal in a slip and fall case! Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store. Insufficient! says the district court. Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery?
This is what’s wrong with Iqbal. Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose. But what does it matter if every last point is in the complaint? The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible. We don’t need any more to get started. There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment.
As this case shows, Iqbal is going to send us back to the era of endless wrangling about exactly what has to be in the complaint. We’re going to waste a lot of time polishing the pleadings. And apart from everything else, it’s going to cause years of confusion. Before Iqbal I could at least give a confident judgment about whether a complaint was sufficient. Now I have no idea. If people can’t even get a slip-and-fall case into court, we’re in trouble.
Update: As Jaya points out in the comments, the post attributed to her above was actually a post by Adam Steinman, transmitted to Concurring Opinions by Jaya. Thanks for this correction and sorry for the error.
posted by Deven Desai
A couple days ago I blogged about RECAP, a system that aims to enhance government transparency by increasing access to court documents. RECAP does this by making it easy for people to share PACER documents after they have paid for them. Today I read that a judge has vacated “legally significant” opinions in a tort case involving trains, high voltage wires, and teens. The case went to 3rd Circuit and was remanded. The District Court Judge vacated the opinions and directed Westlaw and Lexis/Nexis to remove them from their databases. One troubling matter is that it appears the motion to seal is not available. In addition, the decision to vacate the decisions and remove them appears to have been part of a confidential settlement agreement. I am not sure what the rules are for withdrawing a published opinion. There are probably good ones and good procedures for such a move. Then again it may be part of judge’s broad discretionary powers. Here, the way it happened has caused some concern.
In fact, one blogger has decided to post links to many of the vacated opinions, and, yes, RECAP allowed him to do that. In his view, “a court can ever truly ‘unpublish’ a decision, and that law is made every time a court decides any issue.” I am not so sure that is correct. I do think, however, that courts should be more clear as to why they take such actions. Insofar as systems like RECAP help keep government more open and prevent the expunging of records, that is perhaps an unexpected bonus feature to the transparency project. It preserves some truth.
If anyone has information and thoughts about the rules, procedures, and theories allowing a judge being able to unpublish an opinion, please share them.