Guardianship and Trustee Fiduciary Duty Abuse
Fiduciary duties bind guardians and trustees to the highest standard of loyalty and care. Yet, breaches of these duties often occur when fiduciaries exploit their positions, misuse assets, or fail to protect those under their care. This analysis explores the legal frameworks in Florida governing fiduciary relationships and the consequences of violating these responsibilities. The Nature of Fiduciary Duty in Florida Florida law views fiduciary duty as one of the most stringent legal obligations. In Doe v. Evans, the Florida Supreme Court clarified that a fiduciary must act solely for the benefit of another, subordinating all personal interests. This foundational principle underscores the gravity of any breach and the courts’ intolerance for self-dealing, negligence, or other abuses. Self-Dealing: Violating the Core Principle Self-dealing represents the most blatant form of fiduciary abuse. It occurs when fiduciaries enrich themselves at the expense of the estate or trust. The case of Brigham v. Brigham involved a trustee who sold trust property to himself below market value. The court’s swift removal of the trustee, along with an order to restore the trust’s losses, exemplifies Florida’s firm stance against such acts. Similarly, in Landau v. Landau, a guardian used a ward’s assets for personal indulgences. The court again responded with removal and restitution. Self-dealing distorts the essence of fiduciary relationships, and Florida law enforces this principle rigorously. Negligence in Asset Management: A Dereliction of Duty Fiduciaries must exercise prudence in managing assets. Failure to do so, whether through negligence or incompetence, constitutes a breach of duty. In Barnett v. Barnett, a trustee’s failure to diversify investments led to severe financial losses, prompting the Florida Supreme Court to reaffirm that fiduciaries must consider all relevant factors when making investment decisions. Similarly, in In re Guardianship of Sapp, a guardian neglected to pay bills on time, causing unnecessary financial harm. These cases illustrate how courts hold fiduciaries accountable for not only intentional misconduct but also negligent mismanagement. Failing to Account: Evasion and Concealment Transparency remains a fundamental requirement in fiduciary relationships. Trustees and guardians must provide regular accountings, and failure to do so can lead to legal consequences. In Payiasis v. Robillard, the trustee’s repeated failure to provide accountings resulted in the court deeming this a breach of duty. Similarly, in In re Guardianship of Springer, a guardian’s failure to submit timely accountings led to removal. These cases highlight the critical importance of transparency and the courts’ role in ensuring openness in fiduciary matters. Conflicts of Interest: The Pitfall of Divided Loyalties Fiduciaries must avoid conflicts of interest. Any situation where a fiduciary’s interests may interfere with their duties compromises their ability to act impartially. In McCormick v. Cox, the court addressed the inherent conflict when a trustee also served as a beneficiary. The court scrutinized the trustee’s decisions benefiting himself at the expense of others. Likewise, in Koshenina v. Buvens, a guardian entered a business arrangement that created a conflict with his ward’s interests. Both cases demonstrate the courts’ vigilance in protecting the integrity of fiduciary decisions by ensuring that fiduciaries maintain undivided loyalty. Abusing Discretion: Acting Beyond Authority Discretion often accompanies fiduciary duties, but its abuse can lead to significant consequences. In Cripe v. Atlantic First National Bank of Daytona Beach, the trustee’s refusal to distribute funds to a needy beneficiary despite having discretionary powers led the Florida Supreme Court to emphasize that discretion must be exercised reasonably and in good faith. Similarly, in In re Guardianship of Stephens, a guardian’s unilateral decision to change living arrangements without court approval constituted an abuse of discretion. Courts consistently stress that fiduciaries must not overstep their bounds, even when granted broad decision-making authority. Failing to Safeguard: Neglecting Protection Duties A fiduciary’s role involves protecting assets and individuals from harm, including exploitation by others. In Bookman v. Davidson, a trustee failed to protect assets from undue influence by a beneficiary’s spouse. The court held that the trustee had a duty to shield the trust from such interference. Likewise, in In re Guardianship of Fuqua, a guardian failed to protect a ward from financial exploitation by family members. These cases reinforce the fiduciary’s affirmative obligation to act as a protective barrier against external threats. Confidentiality: Preserving Privacy While Florida case law is less developed in the context of guardianships and trusts, the broader principle that fiduciaries must maintain confidentiality is well-established. In Gracey v. Eaker, the Florida Supreme Court recognized the breach of confidentiality by a psychotherapist as a breach of fiduciary duty. This principle applies to guardians and trustees, who must protect sensitive information relating to their wards or beneficiaries. Overestimating Competence: The Duty to Seek Advice Fiduciaries must recognize when matters surpass their expertise and seek appropriate professional advice. In Comerica Bank & Trust F.S.B. v. SDI Operating Partners L.P., a trustee’s failure to consult legal experts on complex tax matters led to significant losses, and the court held this failure constituted a breach. Similarly, in In re Guardianship of Sapp, the court criticized a guardian for managing substantial assets without seeking professional advice. Courts hold fiduciaries accountable for failing to recognize the limits of their own competence. Commingling Funds: Breaching Financial Boundaries Fiduciaries must keep their personal assets separate from those they manage. Commingling assets increases the risk of misappropriation and complicates accountability. In Brigham v. Brigham, the trustee’s commingling of trust funds with personal assets led to his removal. Although there was no evidence of actual loss, the court held that the act of commingling alone breached fiduciary duty. The principle applies equally to guardians, who must ensure strict financial separation between their own assets and those of their wards. Inaction: The Breach of Omission Fiduciaries can breach their duties through inaction as much as through overt misconduct. In Estate of Benson v. George Benson Motorcycle Co., a personal representative’s failure to pursue a claim on behalf of the estate amounted to a breach of fiduciary duty. Similarly, in In re Guardianship of Sapp, the guardian’s failure to apply for Medicaid benefits in a
Judicial Oversight of Guardians
Florida’s guardianship system entrusts courts and clerks with profound responsibility for the protection of vulnerable individuals. Judicial and clerical oversight acts as a safeguard against abuse, ensuring that guardians adhere to their legal obligations. The relationship between judges and clerks forms the foundation of this protective mechanism, creating a framework that balances authority with vigilance. Judicial Appointment and Oversight Judicial authority begins with the appointment of guardians. Courts must carefully examine candidates under Chapter 744 of the Florida Statutes, focusing on qualifications that ensure competency and integrity. The appointment process includes evaluating potential guardians for criminal histories, assessing their ability to fulfill fiduciary responsibilities, and requiring them to complete educational programs. These steps are designed to preemptively filter out individuals unfit for such significant roles. In In re Guardianship of Atkins, the Florida courts made it clear that the primary focus in appointing guardians must be the best interest of the ward. Courts have discretion to impose additional conditions, such as requiring guardians to post bonds under § 744.351, thus ensuring financial accountability from the start. Supervision Through Annual Reporting Florida law mandates that guardians regularly file accountings and care plans. This requirement serves as the core mechanism through which courts monitor ongoing compliance. Under § 744.367, guardians of the property must submit annual financial reports, detailing all transactions and the current status of assets. Guardians of the person must file care plans under § 744.3675, outlining the ward’s well-being and care strategies for the coming year. In In re Guardianship of Sapp, the court stressed the importance of these filings, noting that they provide the primary means by which judicial oversight operates. Failure to provide these reports triggers judicial intervention, allowing courts to address potential neglect or mismanagement. Enhanced Monitoring: Court Monitors and Clerk Audits Courts possess additional tools for oversight. They may appoint monitors under § 744.107, individuals tasked with investigating specific guardianships when concerns arise. These monitors act as the “eyes and ears” of the court, providing targeted scrutiny where routine oversight may not suffice. In In re Guardianship of Brownell, the Florida Supreme Court affirmed the critical role of court monitors in ensuring that guardianships remain just and transparent. Clerks also play an essential role, auditing accountings under § 744.368 to detect financial discrepancies. Clerks not only review reports but also have the authority to flag inappropriate expenditures and initiate further judicial scrutiny. The Florida courts in In re Guardianship of Levy acknowledged the clerk’s power to question transactions, ensuring that even subtle misconduct comes under review. Judicial Enforcement and Remedies When misconduct arises, courts have expansive authority to intervene. Under § 744.474, they may remove guardians for a range of violations, from neglect to outright abuse. The courts do not hesitate to act when a guardian fails to fulfill their duties or acts contrary to the ward’s best interests. Poling v. Probate Court of Brevard County emphasized that the ward’s well-being remains paramount, guiding all decisions related to removal. Courts can also impose financial penalties on guardians through surcharge actions under § 744.497. A surcharge requires the guardian to repay losses sustained by the ward due to mismanagement, even if the guardian acted without malicious intent, as the Florida Supreme Court clarified in Merkle v. Guardianship of Jacoby. Furthermore, courts can hold guardians in contempt for failing to comply with court orders, ensuring that legal directives are followed, as affirmed in Guardianship of Hollander v. Schottenstein. Restoration of Rights and Termination of Guardianships Court oversight does not end with the guardian’s performance. Florida law requires courts to reassess whether guardianships remain necessary. Under § 744.464, courts may terminate guardianships and restore a ward’s capacity if conditions change. This process involves medical evaluations and hearings to ensure that decisions align with the ward’s current needs. In In re Guardianship of Fuqua, the court highlighted that restoration of capacity is as grave a matter as incapacity determination. Courts remain vigilant, ensuring that guardianships continue only as long as necessary to protect the ward’s interests. The Role of Clerks in Day-to-Day Oversight The relationship between judicial and clerical oversight forms the bedrock of the system. While judges possess ultimate authority, clerks carry out essential daily monitoring. Section 744.368(5) grants clerks broad investigative powers, including the ability to conduct audits, subpoena records, and even interview witnesses. In In re Guardianship of Klatthaar, the courts affirmed the clerks’ investigatory powers, allowing them to take proactive steps in identifying and addressing potential misconduct. Clerks provide critical input through audit findings, which judges review under § 744.368(6). Although clerks identify issues, it is ultimately up to the courts to act on these findings. This dynamic allows clerks to serve as frontline defenders, while courts maintain the legal authority to enforce accountability. Emerging Trends: Challenges and Solutions As Florida’s guardianship system grows, new challenges emerge. The rise of professional guardians necessitates specialized oversight. Florida’s registration system for professional guardians, established by § 744.2003, creates additional layers of accountability, but courts and clerks must remain vigilant against potential conflicts of interest and ensure that professional guardians remain subject to the same stringent standards as individual guardians. Limited guardianships, encouraged under § 744.344(2), present another challenge, requiring courts to balance autonomy with protection. These tailored arrangements demand a more nuanced form of oversight, compelling judges and clerks to weigh individual needs carefully. Technology offers new opportunities for improving oversight. Electronic monitoring systems now allow courts and clerks to track guardianship activities more efficiently, creating a more transparent system. As these technologies evolve, they hold the potential to enhance Florida’s guardianship framework, providing more effective tools for detecting and addressing misconduct. Conclusion Florida’s guardianship system relies on a carefully calibrated balance of judicial and clerical oversight. Courts hold the ultimate authority, but clerks act as indispensable monitors, auditing guardianship practices and identifying potential issues. This synergy forms the foundation for a robust system aimed at protecting vulnerable individuals. As the system evolves, the ongoing collaboration between courts and clerks will remain critical, ensuring that guardianships
Judicial Factfinding Sixth Amendment
Judicial fact-finding at sentencing imperils the Sixth Amendment’s guarantee of a trial by jury. Federal judges frequently augment sentences based on facts never proven to a jury beyond a reasonable doubt. This practice undermines the jury’s authority, skews power between judge and jury, and destabilizes the moral foundation of our justice system. The Sixth Amendment demands that juries decide every element of a crime beyond a reasonable doubt. In In re Winship (1970), the Supreme Court enshrined this as a safeguard against wrongful convictions and unjust punishment. Yet, at sentencing, judges bypass this principle, increasing sentences based on mere preponderance of evidence. This departure traces back to indeterminate sentencing but has deepened under the Federal Sentencing Guidelines. In Apprendi v. New Jersey (2000), the Court appeared to reaffirm the jury’s central role. Justice Stevens declared that any fact increasing the penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt. Despite Apprendi’s clarity, the United States v. Booker (2005) decision complicated the landscape, making the Guidelines advisory while ostensibly preserving judicial discretion. This created a system where judges routinely find facts that determine sentences, ostensibly operating within an “advisory” framework but in effect sidestepping Apprendi’s promise. The result is an absurdity. A jury may convict a defendant of defrauding victims of $100,000, but a judge can find, by a preponderance of evidence, that the fraud was far more extensive—say, $5 million. This increases the defendant’s sentence tenfold. The jury’s protections vanish, and the defendant suffers a drastic increase in punishment without the protections guaranteed for determining guilt. Circuits have diverged in their response to Booker. Some, like the Seventh Circuit, permit almost unchecked judicial fact-finding, while others impose stricter scrutiny. Most egregiously, many circuits allow sentences based on “acquitted conduct,” where a jury has expressly found the defendant not guilty. This erodes the Sixth Amendment, turning jury acquittals into little more than procedural inconveniences. This framework dilutes the reasonable doubt standard, skews the balance between judge and jury, and exacerbates sentencing disparities. Several paths could address these problems. One solution is for the Supreme Court to revisit Booker and mandate jury findings for any fact that materially affects sentencing. Alternatively, courts could require a higher standard of proof, such as clear and convincing evidence, for sentencing enhancements. Legislative reform could also address the issue by simplifying the fact-finding process or placing stricter limits on judicial discretion. Finally, judicial restraint could curb the worst abuses, particularly with regard to acquitted conduct. The current system renders the Sixth Amendment an empty formality. It perpetuates a sentencing structure where the judge, not the jury, determines the facts that ultimately dictate punishment. The judiciary must confront this reality if the integrity of our justice system is to survive.
The Evolution and Circuit Split on Sentencing Entrapment
Sentencing entrapment has emerged as a contested legal doctrine, challenging the boundaries of fairness in criminal law. While the broader entrapment defense, rooted in Sorrells v. United States (1932), aims to protect defendants from overreaching government conduct, sentencing entrapment addresses a more insidious tactic: the manipulation of a defendant’s conduct to inflate the sentence, rather than merely induce criminal activity. Courts and scholars grapple with the scope of this defense, especially as federal circuits split on its recognition, creating a pressing need for Supreme Court intervention. The traditional entrapment defense turns on two competing theories: the subjective theory, which examines the defendant’s predisposition to commit the crime, and the objective theory, which scrutinizes the government’s conduct. Sentencing entrapment draws from both. It questions whether the government, while ensnaring a predisposed defendant, inflated the severity of the offense through manipulation, leading to disproportionately harsh punishment. At its core, sentencing entrapment challenges the legitimacy of a justice system that allows the government to orchestrate crimes of greater magnitude to secure longer sentences. Courts such as the Eighth and Ninth Circuits have embraced this defense, recognizing the potential for governmental abuse. In contrast, circuits like the Eleventh remain resistant, leaving defendants to navigate an uneven legal terrain where the same conduct might yield radically different outcomes depending on jurisdiction. Proponents of sentencing entrapment argue that it safeguards the integrity of criminal sentencing by ensuring that defendants are punished in proportion to their actual culpability, not the government’s contrivance. This defense extends traditional entrapment doctrines to account for the broader due process concerns raised by cases such as Jacobson v. United States (1992), which highlighted the constitutional dangers of overreaching law enforcement. Yet the reluctance of certain circuits to recognize sentencing entrapment stems from pragmatic concerns. Critics argue that the defense may be difficult to apply consistently, opening the door for abuse by defendants and complicating investigations. Some contend that existing sentencing guidelines and judicial discretion already provide sufficient protections against inflated sentences. These arguments underscore the broader tension between law enforcement’s need for flexibility and the constitutional imperative to prevent undue government influence in criminal sentencing. The current circuit split on sentencing entrapment underscores the need for clear judicial guidance. A Supreme Court ruling could establish a uniform standard, resolving disparities in the application of federal law and setting clear boundaries for government conduct in criminal investigations. The stakes are high: the Court must not only reconcile this legal divergence but also address the broader implications for fairness, proportionality, and justice in sentencing practices. Without such intervention, the uneven recognition of sentencing entrapment will continue to erode the consistency of federal law, creating a patchwork system where justice depends on geography. The resolution of this issue will have far-reaching consequences for defendants, law enforcement, and the foundational principles of fairness that underpin our legal system.
Jurisdiction of United States in Exclusive Economic Zones
The United States’ assertion of jurisdiction in Exclusive Economic Zones (EEZs) raises profound legal and constitutional questions. The U.S. has sought to extend its criminal enforcement, particularly in drug interdiction, under the Maritime Drug Law Enforcement Act (MDLEA), beyond its territorial boundaries. However, this expansion of authority confronts substantial challenges under both the U.S. Constitution and international law. The core issue is whether Congress has the power to regulate conduct in EEZs under the Felonies Clause of Article I, Section 8, which permits Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” EEZs, established by the United Nations Convention on the Law of the Sea (UNCLOS), extend 200 nautical miles from a coastal state’s baseline, giving states sovereign rights over natural resources but leaving navigation rights to other states. The United States, despite not ratifying UNCLOS, has adopted its provisions as customary international law, yet this raises an inherent contradiction: EEZs are not the “high seas” under international law, and thus, the constitutional basis for U.S. jurisdiction in these waters becomes dubious. Opponents of the MDLEA’s extraterritorial application argue that EEZs, by definition, fall outside the scope of the high seas, meaning Congress cannot claim the authority to regulate criminal conduct there under the Felonies Clause. They invoke the historical intent of the Constitution, which presumably did not anticipate the creation of EEZs or the broader interpretations of sovereignty and jurisdiction that have emerged in modern international law. Critics also highlight the MDLEA’s overreach, pointing to the prosecution of foreign nationals whose conduct bears no significant connection to the United States. This extraterritoriality challenges basic principles of due process, international comity, and jurisdictional limits. The statute’s reliance on ambiguous definitions, such as “stateless vessels,” further expands U.S. authority without firm grounding in either constitutional or international norms. The government, however, contends that “high seas” should be interpreted as it was understood at the time of the Constitution’s framing—encompassing all waters beyond the immediate territorial sea. Furthermore, courts have supported the U.S. government’s position by invoking the protective principle of international law, which allows states to exercise jurisdiction over conduct threatening their security, even when such conduct occurs beyond their borders. Yet the growing dissent among circuits, such as in United States v. Davila-Reyes, underscores that the constitutional grounding for such extraterritorial prosecutions is not secure. The First Circuit, in an exhaustive historical analysis, questioned whether the Felonies Clause could be stretched to cover modern EEZ prosecutions, suggesting that Congress’s power may indeed be limited by evolving international law definitions. The legal complexities of this issue are not merely academic. They directly impact the fairness and reach of U.S. criminal law, as well as its adherence to international legal norms. Defendants prosecuted under the MDLEA face lengthy sentences for conduct that may have no clear nexus to the United States, raising profound questions about the limits of U.S. power in a globalized world. Ultimately, resolution may come from the Supreme Court, but Congress could also intervene by revisiting the MDLEA’s scope, tethering U.S. jurisdiction more closely to conduct with a demonstrable U.S. interest. Alternatively, diplomatic engagement, including possible ratification of UNCLOS, could resolve these tensions and clarify the U.S.’s obligations under international law. In short, the question of jurisdiction in EEZs encapsulates broader constitutional dilemmas about the reach of U.S. law in an interconnected world, where national borders and traditional notions of sovereignty increasingly intersect with global crime and enforcement efforts. This unresolved tension between domestic constitutional constraints and international legal principles promises to fuel litigation and debate for years to come.
Classical legal traditional separation of powers
The classical legal tradition offers a rich, nuanced understanding of governance, particularly in its treatment of the separation of powers, which modern legal thought tends to oversimplify. While liberal constitutionalism insists that the rule of law demands strict separation between those who make, enforce, and adjudicate the law, the classical approach reveals a more flexible, historically grounded view of legality. It contends that the fusion of powers does not necessarily result in arbitrary governance, nor does it violate the rule of law. Rather, the combination of roles within a single office can promote a more effective and just application of the law. The classical view, as seen in the legal systems of ancient Rome and medieval Europe, often placed lawmaking and adjudication in the same hands. This was not seen as a departure from the rule of law, but rather as a way to ensure that laws were enforced effectively and that justice was served. Emperors, kings, and other rulers, while wielding substantial authority, were often bound by legal norms that emphasized their duty to administer justice impartially. This tradition, exemplified by figures like Emperor Hadrian, who famously reversed his course to hear a commoner’s petition, shows that even centralized power could operate within a framework of legality. Liberal theorists argue that without the separation of powers, law becomes a mere tool for tyranny. But this view ignores the deep, historical cultures of legality that existed long before modern constitutionalism. In the Roman and medieval worlds, law was not simply imposed from above; it was a living system of norms shaped by jurists, scholars, and courts. Even though the powers of lawmaking and adjudication were often fused, the rule of law persisted through a shared commitment to justice. Indeed, modern liberalism’s fixation on separating powers obscures the fact that the rule of law requires more than just institutional arrangements. The classical legal tradition emphasized that justice and legality arise from the responsible use of power, not its mere division. Frederick II’s Liber Augustalis, for instance, proclaimed that justice and enforcement must be united to ensure the proper application of the law. Combining powers was seen as a way to make governance more effective and grounded in the realities of law enforcement and adjudication. The classical tradition also teaches that the combination of powers can foster a deeper integration of law and justice. In modern administrative states, such as the United States, the combination of rulemaking, enforcement, and adjudication within agencies is not a violation of the rule of law, but a practical response to the complexity of governance. Agencies must adapt laws to the intricate realities of the cases before them. Judicial review, while important, cannot replace the nuanced understanding that comes from exercising multiple powers within a single body. The obsession with separating powers also risks diminishing the role of internal norms. In systems where powers are combined, the officials involved often switch roles, moving from lawmaking to adjudication. These shifts, governed by a commitment to the proper administration of justice, do not inherently lead to bias. Indeed, the classical tradition understood that those holding power could act impartially even when performing different functions. Modern courts, such as the U.S. Supreme Court, have similarly upheld the legitimacy of combined powers, recognizing that the mere combination of functions does not necessarily result in unfairness or partiality. The classical approach to the rule of law reflects a broader conception of constitutional governance, one that seeks not only to protect individual rights but also to promote the common good. This view, articulated by scholars like Adrian Vermeule, recognizes that the rule of law is not simply about limiting state power but about ensuring that law serves the general welfare. The separation of powers, while useful in certain contexts, is not an end in itself. The ultimate goal of any constitutional system is to secure justice and peace for the polity, a goal that may sometimes require a combination of powers. The classical legal tradition provides a valuable counterpoint to the modern liberal emphasis on the separation of powers. It reminds us that the rule of law is not a one-size-fits-all concept but a flexible, historically contingent ideal that can take different forms depending on the needs and circumstances of the polity. By focusing too narrowly on institutional design, modern legal theory risks losing sight of the deeper purposes of law: the promotion of justice, the protection of rights, and the advancement of the common good. The classical tradition offers a richer, more adaptable understanding of how law can achieve these ends, even when the powers of governance are not strictly separated.
An Impertinent Truth
Then it came burning hot into my mind, whatever he said, and however he flattered, when he got me home to his House, he would sell me for a Slave. Imagine a group of experts who have identified a pathology that will kill thousands of Americans by year’s end. These experts have studied the crimes committed over the past ten years, and they can confidently claim they found a particular race, or ethnicity, or sex (there are fifty now, don’t forget) that has been responsible for some discrete number of murders, rapes, and severe injuries in the past. That race, sex, or group has perpetrated these outrages at a relatively steady rate over the last decade, and the experts can extrapolate the level of rape, murder, and maiming to expect in the coming year. In a certain sense, the experts are for once correct: their models, based upon consistent, reliable, historical data, can be back-tested the way a financier checks his assumptions about a portfolio against its previous performance, and the experts can with a strikingly narrow confidence window attest to their predictions. Some particular group of people, the group the experts have singled out, will indeed be responsible for something close to the projected number of crimes. The experts continue. Unfortunately, their models can’t show which members of this particular group will commit the crime. Any member could, potentially, be an asymptomatic carrier of pathological aggression. We have no choice but to distance the entire group from the rest of society. To allow this group to live as free men would of course be ideal, and our laws demand it, but public health has its own, more pressing demands. The group must remain at home. After all, if it saves even one life, it’s worth it. Now, having just come off house arrest ourselves, we make a feeble objection: this pathology of aggression is neither contagious nor multiplicative; maybe a quarantine is not the solution. The experts reply, and in this they are uncharacteristically correct again, that the assumptions about the communicability of the first disease were simply descriptions about the means by which the first disease achieved its ultimate death count. But the death count is the thing. Whether it’s the Chinese Flu or this new social disease of aggression, the ultimate conclusion is the same: freedom means death. And our mathematics has arrived at an expected value for just how much. Quantifiable death. Assured death. If we refuse to force the group in question to stay at home, people will die who, but for our selfish fetish for liberty, would have lived. So you shake your head, and pity the poor folk that must submit to house arrest. You’ve been there. Still, of course, you understand that it is done for the common good. Unfortunately, the experts come on television the next afternoon (they have a habit of doing this). They have bad news (another of their impertinent habits). Upon further consideration, their analysis really applies to every American. You see, while the first group selected for imprisonment would account for 8,000 crimes, you are a member of a group that would account for 5,000, and of another group that would account for 1,500. In fact, it appears the entire country must live under house arrest, because any man’s freedom is a threat. After all, any one of us might be a murderer or a rapist, though not yet showing symptoms of the pathology. Once the experts have spoken, the politicians come to soothe us: yes, you all must stay home, but no need to panic, because only non-essential businesses (read: the one you built by years of struggle and risk; the one that feeds your family; the one you meant to leave to your children) will close. Essential businesses (read: whiskey and abortions) will remain. If you’re particularly lucky, you’re in Michigan, where a woman who appears to have been grown in a test-tube with the spliced DNA of Nurse Ratched and Mommie Dearest will hunt you down if you try to grow winter vegetables. Take heart. I’m told we’ll find a cure for risk, crime, and death within the year. Until then, maybe you should hide the wire hangers.
Old Thoughts on Risk
The coronavirus has exposed Americans’ readiness to sacrifice genuine and timeless human goods for the sake of amorphous and unproven health benefits. It has exposed our naïve trust in the wisdom of experts. It has exposed our shoddy intellectual defenses in the face of misused statistics. And it has exposed that perennial moral disease, one from which not one of us will be entirely free on this side of Glory, but one which seems to haunt with redoubled force great nations in their decline: our efforts to deny our created and contingent nature, and to pretend that we are anything but creatures born to die. These moral and philosophical errors have perverted our laws; our laws in turn amplify the perversion. Decades of bad tort precedent taught us to expect to transfer to others what properly is our own burden – namely, to preserve our own safety. In present day, overbearing tort law threatens to bankrupt businesses that seek to reopen their operations. Tort decisions over the past several decades have fundamentally altered the traditional standard for one’s duty of care – the care expected of a reasonable, prudent man. The standard served to tether liability to common practice and community norms governing accepted behaviors. Behind that practice lay a myriad of unspoken assumptions, many of which were assumptions about a concomitant burden of prudence upon all parties to an injury, assumptions about the inevitability of risk in any activity, and assumptions about the extent to which a party should be excused for remote or unforeseeable consequences of his actions. Which means that in a sane world, a man injured while walking along a cricket field had no cause of action where it was shown that only an unusually strong hit would send a ball far enough to reach the path. Underlying such a rule would be the salutary presumption that normal, free men play sports, and that other normal, free men ought to keep a weather eye on the pitch when crossing a cricket field. The players have a duty not to undertake a danger outside the common dangers of everyday life, and the man on his walk had a duty to look out. Such a sober, sane ruling grows increasingly hard to find in the tort law of most of our states. One may find a good judge in a good jurisdiction to stand up for good sense, but more often, one sees courts far too willing to find a defendant liable for consequences far removed from the foreseeable effect of his action, or even for someone else’s reckless if not deviant behavior. A legal system that redefines reasonable behavior to impose excess caution on defendants encourages careless behavior in plaintiffs. It discourages a man’s own industry and prudence in efforts to guard himself and his family from harm. Put another way, our laws have made us a nation of wards and imbeciles. They now may make us a nation of bankrupts. No theater or restaurant or school can open if liability remains so liberally construed. Under our current practice, a man will likely as not win a suit against the neighborhood café if he happens to contract COVID 19 while dining there, even though he could never prove where he contracted the virus, and even though he admits to having patronized the café of his own free choice. Some would argue that the café must protect the client from the disease much as they would protect the client from spoiled meat. Yet the difference between the two scenarios only further demonstrates the degeneration of the law. The café that serves bad food has actively harmed its customer with the very product over which it has control. A café has a responsibility for food safety in great measure because restaurants the world over have shown they can indeed remain solvent while ensuring the customer receive wholesome food. No establishment has shown, because none can show, that it can shield its customers from colds, flus, or various other similarly transmitted pathogens. Our café cannot cook its seats. Or its customers. It does not, and indeed cannot, control the ineradicable. Mitigation measures that limit seating will destroy a small café, since the vast majority of them can only generate profit near full capacity. So a man’s business must close, because he is held to an impossible standard of care, and is expected to accept any burden his patrons once had to exercise caution on their own behalf. When the owner files to make himself the ward of the state, he can thank our broken regime of tort. “I am game for his crooked jaw, and for the jaws of Death, too, Captain Ahab.” – Melville (by way of Starbuck)
Law of Necessity
“Time has proven the discernment of our ancestors… No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” – Justice Davis, ex parte Milligan America’s strongest precedent incorporating that great English tradition of protecting subjects from the Crown comes in a Civil War-era decision, ex parte Milligan. In it, the Supreme Court forcefully argues for clear limits to the state’s invocations of necessity to justify its attempts to circumvent established legal protections. I first include much of Justice Davis’s striking opinion: These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. The Supreme Court has struggled mightily with this decision. It struggled with it in ex parte Quirin, when Franklin Roosevelt demanded the Court’s imprimatur for his having forced the execution of an American citizen without fair trial. The Court invoked and struggled with the Milligan precedent again in Korematsu v. United States, when Mr. Roosevelt imprisoned American citizens en masse and without trial. The Court similarly struggled with Milligan during Bush’s so-called war against terror; at that time, Justice Scalia invoked Milligan and reminded the Court that our fathers drafted, amended, and ratified the Constitution under far more dangerous crises than we have seen in living memory. A disastrous smallpox epidemic predated the ratification by only a few years. Yellow Fever decimated American cities, killing one out of every ten Philadelphians in 1793. Dysentery was nigh unto ineradicable. Pirates, less a scourge than fifty years early, still infested the waters about Tortuga, Nassau, and Port Royal. The early republic faced at all times the twin shadows of rebellion and invasion. Yet through all that, Americans expected to enjoy the freedoms granted first by custom and then by a written constitution. Scalia insisted that any suspension of the writ of habeas corpus should come through Congress, presumably the body of government most responsible to the people. Indeed, the Constitution provides Congress with the process of suspending the great writ in Section IX of Article I: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It is not clear to what extent Congress may suspend other constitutional protections, though any effort to do so should proceed analogically from the Suspension Clause; if Congress wishes to strip Americans’ rights in an emergency, it must do so formally, explicitly, and thereby submit itself more immediately to the angry rebuke of the electorate. An attempt to invoke necessity as a defense for tyranny should respect our common law on the subject, one inherited from centuries of precedent after the Petition of Right. By it, the state may justify its invasions of liberty only by showing such an immediate, present, local threat that the threat closes the courts and deposes the civil administration. The Supreme Court in Milligan rightly makes much of the local character of such a justification: a hostile army in Bloomington may force the courts to close there, but that does not justify the Governor’s suspending of rights in Evansville or South Bend. By analogy, a plague that affects predominantly one city may not be a real threat to any other in the nation. A city whose courts and civil administration may continue to work without real threat of being overcome should not invoke the plight of another more beleaguered city to justify the former’s suspension of constitutional guarantees. Luckily enough, Mr. Trump has for the most part restrained the Federal government from assisting the shocking behavior perpetrated by many of America’s mayors and governors, executives who have seized upon the Chinese Flu to indulge their autocratic fantasies.Mr. Trump proved me wrong when I doubted his ability to win the presidency. He proved me wrong when I doubted his dedication to appointing wise and impartial judges. He happily has proved me wrong once more. I doubted that he could resist the temptation to seize tyrannical power should the opportunity arise. But the credentialed class vocally and constantly offered if not