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On the wearing of masks and personal responsibility, from a legal perspective

[Learned Hand, 1872-1961]

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

Learned Hand (yes, that’s his name) was perhaps the most famous US judge never to ascend to the US Supreme Court. He was revered as an eloquent writer and was widely cited — probably the most cited non-SCOTUS judge in US history.

Learned Hand’s chief claim to fame was his negligence formula. In a case called US v Carroll Towing, Hand found a clever way to analyze negligence cases, which formula thereafter became a cornerstone of tort law. The case concerned a vessel moored in NY Harbor, which had become unmoored and sunk. Hand succinctly broke it down like so:

Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.

There have been plenty of opportunities to consider our present situation from the perspective of Hand’s formula, given how our existence now requires us to measure the foreseeability of risk of certain actions (e.g., will I become infected if I grab that doorknob without gloves?) alongside the gravity of outcomes (ranging from the uncertain to the dire), and, in our personal lives, consider that risk-harm dyad against the difficulty of reducing risks to avoid harms.

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Applied more directly, the question becomes whether the cost of the burdens — wearing masks, lots of hand-washing, staying home — is less than the risk and gravity of harm. If it’s less, then failing to take those steps basically means we’re being negligent. Realize that I’m not suggesting people be sued or arrested for not wearing masks, I’m describing a useful way to think about personal responsibility.

Even if you’ve never heard of Learned Hand you’ve probably internalized his liability formula as common sense. You wear seat belts because the burden — the minor discomfort — of wearing one is far less than the benefits it delivers in the reduced risk of death, even if the likelihood of dying in a fatal car accident is low. Seat belt laws exist to further incentivize the wearing of same due to the possibility that your death might also become a burden on the state.

But there are two distinctly different ways people internalize Learned Hand’s formula, which are revealed when you ask who exactly is being called on to bear the risk and the consequent harm. Is it all of us? Or is it just me?

A friend (of a friend) on Facebook recently complained about the plexiglass that now hangs between customers and the grocery cashiers, asking “What good will that do? They’re still handing your money.” To many, the purpose of the plexiglass is to protect them from the clerks, but the store’s greater interest is in protecting the cashiers from customers. More accurately, it’s a cost burden undertaken by the store to protect everyone from everyone else.

Masks have become the bigger flashpoint, because they’re a burden being asked of all of us. Like the plexiglass, the purpose is less about protecting you from people than protecting people from you, a potential asymptomatic carrier.

If your reasoning behind foregoing the discomfort of a mask is that you’re willing to bravely bear the personal risk in exchange for not suffering that burden, you’ve missed the point spectacularly because the harm you’re risking is shared. Not wearing masks is a bit like drunk driving, except your decision risking the health of others is entirely lucid.

The braver act requires conceptualizing yourself as part of a greater whole, asking what effect your actions have on that whole and acting accordingly. In a country with so many self-identifying religious adherents, you’d think there’d be no real obstacle in making that leap. But the United States isn’t “religious” so much as a collection of religious tribes, many which harbor a deep distrust of government.

Consequently, many of us will continue to act independently, either knowingly or ignorantly discounting the risk of harm to the health of others through tortured rationalizations, misplaced evocations of liberty, and perhaps psychological fears about masculinity because, well, masks aren’t comfortable. I think Learned Hand would call this negligence.

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