2020

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The COVID-19 pandemic continues to wreak havoc on American society. Public health experts agree that the best way to end it is with the development and implementation of a safe and effective vaccine program, and government, private industry and not for profit organizations have already committed billions of dollars towards this end. This Essay will examine three possible approaches that government and businesses can take to increase the likelihood that enough Americans are immunized against the SARS-CoV-2 coronavirus to achieve herd immunity.

This essay proposes that Wisconsin’s formulations of duty and causation are unique and fundamentally incompatible with the Restatement (Second) of Torts. Part I offers a theory of Wisconsin negligence. It tracks the historical roots of Wisconsin’s negligence framework and distinguishes Wisconsin’s approach from jurisdictions that follow the Restatement by examining two famous cases, The Wagon Mound and the “exploding lamp” case.1

Part II considers two recent Wisconsin Supreme Court decisions and argues that in each case, the Court applied sections of the Restatement that were incompatible with Wisconsin law. These cases are microcosms of a larger debate among the justices questioning whether duty should be handled differently in cases of negligent omissions as opposed to negligent acts. This essay proposes that nearly a century of settled law resolves this debate, and that Wisconsin’s unique negligence analysis is strong enough to answer any difficult questions that come before it. When the Wisconsin Supreme Court resolves complicated cases by adopting unnecessary sections of the Restatement, it places the doctrinal integrity of Wisconsin’s negligence framework at risk. Judges would be wise to avoid the Restatement (Second) of Torts altogether.

Thomas A. Baker III, Marc Edelman, & John T. Holden

The COVID-19 health crisis and resulting “stay at home” orders have led to newfound challenges for commercial sports leagues concerning how to safely and ethically conduct games during such uncertain times. For professional sports leagues, including Major League Baseball, the National Basketball Association, the National Football League, and the National Hockey League, many of the decisions about how to return to sport have entailed collectively-bargained negotiations between league owners and players’ unions. However, in collegiate sports, where the players are not unionized, these decisions are made unilaterally by colleges on either the individual school, conference, or national level—all without any meaningful player input. This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.

Nizan Geslevich Packin

The COVID-19 economic crisis has brought to light something very broken in the American banking system—banks prioritize their own profits over the interests of those they serve and interests of social justice. And they are permitted to do so because they do not owe a fiduciary duty to their customers and are not social welfare maximizing entities.