Paul L. Caron

Thursday, July 2, 2020

The Only Question For Law School Reopenings: How Do You Ask a Person To Be The Last Person To Die For A Mistake?

William H. Widen (Miami), The Only Question for Law School Re-Openings: How Do You Ask a Person To Be the Last Person to Die For a Mistake?:

CoronavirusThat is the question American law school deans and their supervisors must consider as the fall term approaches. I pose this question to advocate for law schools to teach fully online in fall 2020 because a law school might take a conservative approach in the short term without serious jeopardy to their academic mission. ...

Administrators should strategically reduce overall campus population density by teaching law online because law adapts well to distance learning. ...

Law school management must prepare to answer this question if they open classes in-person, despite reservations about safety, or the efficacy of social distancing measures. Harvard Law School and UC Berkeley Law School led with decisions to cancel in-person instruction for fall 2020. Other schools have taken notice and are in various stages of deciding the way forward, including hybrid learning approaches that mix in-person and online instruction, also designed to minimize risk, as an alternative to the risk mitigation strategy advocated for here. UC Irvine just announced a hybrid approach—all online for upper-division, with a choice given to incoming 1L students.

For 1L courses, a large classroom with active discussion is common—but not strictly necessary. Conventional wisdom suggests that a failure to hold in-person classes will result in a dramatic decline in first-year law school enrollment and, thus, tuition revenue. Financial ruin follows because law students will only pay for the in-person Socratic experience. Economics drives the decision to take the risk to open with in-person classes. The brunt of the risk is borne not only by students but also by faculty and staff—groups situated below the pay grade of the administrators sending them into harm’s way.

Suppose you, as the ultimate decisionmaker, are asked this question by a grieving family who lost a father, a mother, a son, or a daughter just after you closed the law campus when, after a few weeks, your precautionary measures failed to control the virus. Now, you point to your liability waivers and warning signage sprinkled throughout your campus. You mumble something about CDC guidelines, best practices, decisions made on available information at the time, etc. And, of course, you are very sorry. Maybe you have no legal liability.

Yet, in the back of your mind, you never shake the feeling that your decision was guided more by economics than by safety. The calculus of decision to re-open with in-person classes troubles you long after the crisis passes, whether you are a member of a board of trustees, a president, a provost, or a law dean—and rightfully so.

Coronavirus, Legal Ed News, Legal Education | Permalink


"The ignorance on these comment threads continues to bewilder."

Says the guy who never cites any reputable sources of information when he complains about some marginal issue, and then challenges people to prove him wrong.

Projection, much?

Posted by: MM | Jul 10, 2020 7:49:22 PM

The ignorance on these comment threads continues to bewilder.

Posted by: Unemployed Northeastern | Jul 8, 2020 1:19:09 PM

Anyone not advocating for reopening needs to be in jeopardy of financial ruin. Then they'll change their tune real quick.

Posted by: Anon | Jul 6, 2020 2:58:09 PM

The equating of car accidents and pandemic deaths is absurd. Both individuals and governments can predict the various causes of car accidents and can take specific actions to avoid or prevent them. Individuals can avoid driving, drive more slowly, drive on safer roads, etc. Governments can make infrastructure safer, set speed limits and enforce them, set various other safety standards (seat belts) and enforce them. The same is not true of a viral pandemic, that at this point is still offering many mysteries. The entire society has to work together--scoffers of the harm of the virus (just a flu--not) likely are among those who refuse to wear masks or abide by social distancing, the only measures that allow any kind of societal mixing without the danger of a superspreader infecting vulnerable children or adults. And the young are vulnerable--even if mildly ill, many show long-term possibly permanent damage. Children die. And the virus is mutating. It is now more contagious. It may become more deadly, especially with those number who scoff at socially responsible measures continue to scoff. America's frontier was founded on people helping each other. We are not islands who can exist alone but depend in many ways on our mutual assistance in times of crises.

Posted by: TaxGal | Jul 5, 2020 2:14:37 PM

So much prattle about COVID.  Asking questions such as "How Do You Ask a Person To Be the Last Person to Die For a Mistake?" are hyperbole. It will take a concerted effort for COVID deaths to exceed deaths by accident (170,000) in the US, even with the systemic serial misattribution of death to the virus.  The fatal conceit in the question posed is if they are remotely successful most all law schools should shutter their doors. Limits on enrolment are for issues of physical capacity. Online teaching eliminates that constraint. The states can sell off their universities and sports teams and save money and drastically reduce taxes.   Mmorpg can fill the hole of collegiate sports

Posted by: L Burke Files | Jul 4, 2020 6:52:10 AM

99.9% of all people who have died of coronavirus have been over the age of 25, and the vast, vast, vast majority have been over the age of 50, literally.

This is fundamentalist "safety first, zero risk" thinking that will set back the education of college students tremendously. And nobody really cares, I guess...

Posted by: MM | Jul 3, 2020 6:01:44 PM


The Virginia Safety and Health Codes Board has issued a new emergency workplace standard to curb the spread of COVID-19. LINK

It applies to all Virginia employers and places of employment under the jurisdiction of the Virginia Occupational Health and Safety Administration. So it clearly applies to GWU's campus and other activities in Virginia.

It might even arguably apply more broadly, including to the D.C. campus,
For example, I was able to force a company in Maryland to comply with D.C.'s Human Rights Act.

In any event, GWU might find it hard, as well as embarrassing, to provide less protection to faculty and staff on its main campus than it provides to those actively working in Virginia.

The new rules provide protection in a wide variety of areas; e.g.:
* mandating physical distancing
* cleaning of all common spaces
* providing personal protective equipment

Two of particular importance:
* GWU must notify their own employees who were at a worksite with an employee who subsequently tested positive for active COVID-19, other employers whose employees were also present, and the building/facility owner of the affected site within 24 hours of discovery of possible exposure.
* GWU must develop and implement policies and procedures for employees to report positive results from antibody testing, and while an employee who has tested positive for SARS-CoV-2 antibodies may return to work, employers are not required to allow an employee who has received such a test to return.

Perhaps of greatest importance to faculty who wish to take action to protect their own safety and health are the following:

The emergency workplace standard prohibits employers from
* Discriminating against or discharging an employee because that employee voluntarily provides and wears their own personal protective equipment, if such equipment is not provided by the employer, as long as that equipment does not create an increased hazard for the employee or other employees
* Discriminating against or discharging an employee who has raised a reasonable concern about SARS-CoV-2/COVID-19 infection control to the employer, the employer’s agent, other employees, or a government agency, or to the public through print, online, social, or any other media.

These workplace safety standards are set to go into effect on July 15, 2020, and employers could be fined up to $13,000 for failing to comply.

In addition, Virginia’s recently-enacted whistleblower protection law, which became effective July 1, 2020, will protect workers that disclose violations of the emergency workplace standard.

In particular, the new Virginia whistleblower protection law provides a private right of action for an employee who suffers retaliation for “in good faith report[ing] a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official.” Va. Code § 40.1-27.3(A)(1).

The statute proscribes a broad range of retaliatory acts, including discharging, disciplining, threatening, discriminating against, or penalizing an employee or taking other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment because of the employee’s protected conduct. Id. at § 40.1-27.3(A).

It's important to note that complaints can be filed by a third party (a friend of the GWU worker or an attorney representing one) or even anonymously. Thus it would appear that if a professor filed a complaint anonymously, but GWU retaliated in any way based upon its suspicion as to who filed the complaint, the employee would still be protected.

Posted by: LawProf John Banzhaf | Jul 3, 2020 2:29:52 PM

Maybe classes should just be canceled until the election. We can go back to normal afterwards.

Posted by: Anon | Jul 3, 2020 10:22:22 AM

As if economics and safety were not always intertwined. The 55 (or any other number) mph speed limit is not some magical number. It represents a balance between safety and economics. A safety factor of 4 (or any other number) in construction represents a balance of safety and economics. A tolerance of x particles per million of substance y in the food you eat and the air you breathe represents the same balance. Pick up Basic Economics by Thomas Sowell and think before you post.

Posted by: Chris R | Jul 3, 2020 7:39:33 AM

People much troubled by such issues are increasingly unsuited to academic (or other) administration. By natural selection, therefore, the problem will attenuate away.

Posted by: Egg0 | Jul 2, 2020 9:19:04 AM

Safety is nor the only thing to consider. A very myopic view of a complex situation.

Posted by: Jim B | Jul 2, 2020 9:14:43 AM

Then you can never open classes.
2000 people die every year from walking on sidewalks.
People must walk on sidewalks to get to your classes.
30,000 people die every year from automobile accidents.
Most people use automobiles to get to school.
Humans must never do anything ever to avoid risk of death.

Posted by: Sineater | Jul 2, 2020 8:44:04 AM

Mr. Widen, of Miami, assumes in his argument that this illness is the plague when -- especially for people in and around law schools, people from age 25 to 50, say -- it's more or less the flu. So his whole drama ("how will you feel if someone dies") is, ahem, both hysterical and very uninformed. This kind of argument should be laughed out of the public sphere.

Posted by: John Maguire | Jul 2, 2020 7:04:03 AM

There is an easy answer to this problem. Offer every faculty and staff member the option to take a one year unpaid leave, with a guarantee that their job will be held. This way, the decision to place economics over health is made by each individual.

Posted by: JM | Jul 2, 2020 6:52:49 AM