Should anti-vaccination parents be liable under tort law if their child infects a baby and kills them?

With the current measles outbreak this is a “live” issue. From Dorit Reiss at UC Hastings College of the Law:

Further, we do make exceptions and impose liability for nonaction when there are strong policy reasons. When parents decide not to vaccinate (absent a valid medical reason), they are choosing a bigger risk for their own child and rejecting expert opinion. That is bad enough; in a real sense, they are failing their own child. But they also put others at risk, others who did not choose that risk. Under these circumstances, there are good reasons to create an exception and find that parents who do not vaccinate violate a duty of care and should take personal responsibility when anyone is harmed. This social choice can be made easier by legislative action. State legislatures can create laws that impose liability when non-vaccinating is shown to cause harm.

From a 2014 piece by Blake Simpson, then a J.D. Candidate at the University of Nebraska College of Law:

In response to the problem of decreasing vaccination rates in Ashland and other communities with high non-medical exemption rates, bioethicist Art Caplan has advocated for using tort law as a policy-shaping tool to help achieve public health goals regarding vaccine mandate compliance. Caplan believes that statutory religious and philosophical exemptions should still be available to parents, but that liability for negligence should flow from any harm caused by their decision to withhold vaccination from a child regardless of whether an exemption has been procured. As Caplan explains,

If your kid gets the measles, and remember public health officials are getting very, very good at tracing outbreaks to their source, and makes my kid sick (can happen since vaccine is not 100% effective), my newborn baby die (newborns can’t benefit from vaccines) or my wife miscarry (fetuses are at especially high risk), then shouldn’t I be able to sue you for the harm you have done?

In a typical case, the plaintiff would shoulder the burden of proving each element of a traditional negligence claim in order to recover against the parent of an unvaccinated child: duty, breach of duty, causation, and damages. As to duty, Caplan contends that parents have a general duty to prevent foreseeable harm to others. Because the failure to vaccine could result in reasonably foreseeable harm to the child and others, this duty applies regardless of whether a parent has obtained a religious or philosophical exemption. Caplan believes that exemptions do “not negate the fundamental duty one has to act reasonably in preventing the spread of disease to others,” and the failure to vaccinate a child represents a breach of duty regardless.

And from a University of Cincinnati Law Review, Vol. 82 [2014] article by Teri Dobbins Baxter:

Parents have the right under current state and federal law to choose not to immunize their children. Their choice to exercise this right should not expose them to tort liability. However, their choice, and the constitutional and privacy rights implicated by the choice, do not absolve them of their duty to exercise ordinary care to prevent causing harm to others. Allowing those who have been infected by unvaccinated children to pursue tort claims merely recognizes this duty. While courts have not addressed tort claims or duties in this precise context, holdings in other cases involving negligent transmission of contagious diseases support the conclusion that public policy favors tort liability. It promotes the compelling state interest in preventing the spread of disease without unduly infringing on the right of parents to direct the care and upbringing of their children. For these reasons, tort liability should be available against parents who choose not to immunize their children and who fail to use due care to prevent those children from contracting harmful diseases and infecting others.

Posted in Burkina Faso, United States

Reading fiction because it is actually better than binge-watching

Yes!  From Ben Dolnick:

And pleasure is, after all — once I scrape away the layers of self-image and pretentiousness — the reason that I read. When I’ve found the right book, and I’m reading it the right way, reading is fun — head-tingling, goosebump-raising fun. It’s a vivid and continuous dream that is somehow both directed from without and cast from within, and I get to be awake for it. Netflix can wait.

I am reading Nobokov’s King, Queen, Knave right now and every day I cannot wait until evening to get back to it.

Posted in Reading

Super Furry Animals – Run! Christian, Run!

I’ve loved this song for years…

Posted in Music

Molly Sarlé – Human

Posted in Music

Recent stories in The New Yorker

I must say the past few months have, in my opinion, been generally excellent, with many stories that I think are extremely well crafted and profound (many deal with rape), and very little of the silly stuff (yes, I’m looking at you Coraghessan Boyle).  I will link to the my favorite literary blog Mookse and the Gripes, where people discuss The New Yorker stories so you can see more profound remarks other than my own “I liked it.” Most of these I listened to the author reading via the Fiction Podcast.

Pat Barker: “Medusa”   I found it amazing. An artist is raped. Her body goes through the motions of life. Her mind, though…

Colson Whitehead: “The Match”  You start getting nervous during a story, with that dreadful feeling that you do not want to know where it is going, but where it is going is to a place that just cannot be forgotten, that has to be remembered every day, of cruelty so vast it is buried in the trunk of trees.

Lore Segal: “Dandelion” You must listen to her reading the story, with her wonderful accent. Wild Strawberries from a woman’s point of view. Profound and nostalgic.

Sally Rooney: “Color and Light” I gather she is getting a lot of good press. I liked the story, which is wonderfully vague and ambiguous.

Yiyun Li: “All Will Be Well” A writer listens to the stories told by her hairdresser, about her lost love. Much of the story is a meta story, and, one learns later when reading about Li, sadly unfolded from the author’s own experience.

Jonathan Lethem: “The Starlet Apartments” Not for everybody, but I thought there was more to the story than the surface. Perhaps a meta story buried in there?

Leïla Slimani: “The Confession” A young woman from the village is raped by the narrator. How can he live with it? Beautiful, sad story.

Mary Gaitskill: “Acceptance Journey” Dragged on a bit but how we can make sense of our sometimes all too ordinary lives is wonderful.


Posted in Book and film reviews

Aldous Harding covers “Right Down The Line” by Gerry Rafferty

Posted in Music

Budget transparency at private universities: Some thoughts about SCU

A few days ago, the Santa Clara University campus recreation unit sent an email to faculty and staff announcing that starting in the next academic year fees of $200 per year would be charged for use of the recreation facilities (gym, exercise room, courts, pool). These had been a free benefit of university employment. Faculty and staff were upset, and 100s of emails were shared, until 12 hours later when the university chief operating officer sent an email suspending the change.

The event was a lesson in poor management communication. Not lost on faculty and staff was the constant rhetoric of the university as an institution committed to the health and wellness of employees!

The action also tapped into a frustration with budget opacity.  I served in 2018-19 on an entity called the University Budget Council (UBC), part of our university’s shared governance system. The UBC in the past year did not discuss the recreation facility fee change. Should it have? The way the UBC worked ( it seemed from my first year of experience, and from talking with an earlier faculty representative) was to quickly vet modest changes from the previous year’s budget. Certain major unit heads (Provost for all academic units, IT, residence life, admissions, development) made a “pitch” for why they should get a possibly small increase (i.e. instead of 3% merit pool for salaries, a small increase to a 3.5% merit pool; or instead of 0% increase in budget for IT, a 1% increase). After 30 minutes of discussion in the UBC, these “pitches” were then adjudicated by Vice President for Finance Michael Crowley and his team, and a “compromise” was presented in followup meeting (about six meetings over the Fall quarter).

Informal practice has been to have no voting or UBC resolution of competing requests, instead the administration did that behind the scenes. I guess if major department heads really wanted to fight an allocation, they could push for a “constitutional crisis” and ask UBC to formally vote on their proposal. The UBC has no bylaws, though, so the mechanisms by which requests would be adjudicated have not been established (secret vote? who decides on wording of vote?). In any case UBC is part of the shared governance institution that in the end is advisory in that the Trustees ultimately decide on this “macro” budget.

I feel that my role in coming year as a member of UBC is to advocate within UBC and faculty senate for greater budget participation and transparency. Faculty and staff, for example, know next to nothing about the Athletics budget, for example. The administration will not, apparently, generate and share a university-wide report on adjunct salary structures, information that is crucial to addressing policy on compensation and unionization. The administration has embarked on extensive borrowing to fund large campus construction projects, but does not share “bad case” scenarios that might require drastic expenditure reductions.

The Faculty Senate voted a resolution several years ago to establish a long-term budget priorities committee. For three years the administration has contrived a variety of excuses for why this committee could not undertake its charge, even after agreeing in principle to the committee.  (Incidentally, want a model of what budget transparency can produce? See this white paper on football at San Jose State University.)

I also think the transparency issue was not so salient for faculty when university priorities seemed fully aligned with faculty priorities (during the 1990-2010 period?). As the administration has increasingly committed to a different path (increasing reliance on non-tenure track faculty, increased emphasis on elite athletics, greater investment in physical plant and student amenities over scholarship, gradual decline in “real” faculty salaries- that is, adjusted for Bay Area living costs) the questions about transparency become more important.

Posted in Santa Clara University