Unlimited Liabilities w/ Nate Holdren (07/31/23)
Death Panel podcast co-hosts, Beatrice Adler-Bolton and Artie Vierkant, speak with Nate Holdren about a recent court ruling in California that denied a covid worker's compensation claim because recognizing employer liability would have "the potential to destroy businesses and curtail, if not outright end, the provision of essential public services."
Nate Holdren 0:01
It's really striking that that's essentially they're just saying this is now built into what it is to have a job. Part of having a job now is the chance that maybe you're going to disable or kill someone who lives with you. Like, in a way the political effect of no more pandemic and forevermore pandemic become identical. It's like they've said, the scale of social murder is just now so large that it just has to be allowed to happen.
[Intro music]
Beatrice Adler-Bolton 0:54
Welcome to the Death Panel. Patrons, thank you so much for supporting the show. We couldn't do any of this without you. If you'd like to support the show, become a patron at patreon.com/deathpanelpod. And if you'd like to help us out a little bit more, share the show with your friends, post about your favorite episodes, pick up a copy of Health Communism from your local bookstore or request it from your local library and follow us @deathpanel_. So today I'm here with my co host, Artie Vierkant.
Artie Vierkant 1:16
Hello.
Beatrice Adler-Bolton 1:17
And the two of us are joined by returning guest and friend of the Panel, Nate Holdren. Nate is a legal historian of capitalism and is a professor at Drake University. He is the author of the book Injury Impoverished: Workplace Accidents, Capitalism and Law in the Progressive Era, which we've discussed previously on the show.
It's a really great book and a great episode about the book. It was actually I think, the first time we had you on Nate back in December of 2021. And you may remember Nate from one of our most popular episodes, which is the conversation that we had with Nate about social murder and COVID.
So today, we're going to unpack a recent California Supreme Court decision regarding a worker's comp case where the court basically held that employers owe no duty of care to non-employees, including their family members to prevent the spread of COVID-19 and can't be held liable under state law when their workers get COVID on the job, and then spread it to relatives, without basically undermining the American economy. And you might think I'm exaggerating, but I'm not, as you'll hear for yourself momentarily.
So that is all to say, Nate, welcome back to the Death Panel. It is so nice to have you back on the show.
Nate Holdren 2:26
Delighted to be here. Thank you for having me.
Beatrice Adler-Bolton 2:28
So I'm glad you could come to help us talk about this court decision and the broader context. So today, we're going to talk about what this case and the results of this case, tell us in terms of the way that the economy is literally privileged over life in the very structure of capitalism, and how the courts play a really key role in setting the parameters for social murder, and then how this also fits into the ongoing attempt to sociologically produce a premature end to the pandemic.
So just to lay out a little bit about the case that is at the center of our conversation today: On July 6 2023, the state of California Supreme Court issued a ruling in the case of Kuciemba v. Victory Woodworks, in which they concluded that under California law, an employer does not actually owe it to their workers to prevent the spread of COVID-19 to employees' household members, and the decision also prevents an employee's household member from suing an employer in civil court and limits those claims to the workers comp system.
So it's really complicated. But basically, what this does is it restricts claims in California, and really limits the number of claims that can be brought against an employer for transmission in the workplace.
And so while you may have only heard about this case recently—when the decision came out it was really sort of discussed a lot in COVID Twitter, for example—but this case has been the focus and on the minds of employers and sort of Chamber of Commerce types for a long time now. And this has been for a long time sort of referred to in corporate and legal circles, as a "take home" COVID worker's comp case.
So these ghouls have sort of socially reproduced the narrative that the real issue with these lawsuits and the 'catastrophic potential' that they have to sort of start an endless chain of liability litigation is really what's at issue here and sort of what the preoccupation is both of the business community and of the court itself.
And, as you'll see, you know, this rhetoric that we're going to talk about, the court just completely laps it up, and it's all over their decision. So some of the quotes we're gonna get in today are truly heinous. But before we get into any of that, I think we should just start with some context and talk about the sort of circumstances that triggered the lawsuit. And then from there, we can get into big picture stuff.
Nate Holdren 4:50
So, basically what happens in this situation, there's a man named Robert Kuciemba, and he's married to a woman named Corby Kuciemba and Robert worked for a company called victory Woodworks. It was in California.
And there was a public health order in effect, a local, municipal or county public health order about limiting people moving around to prevent COVID transmission. Victory violated that order and brought some employees to the worksite that Robert worked at.
And the worksite that they came from had had COVID exposure. And so it was the opinion among Kuciemba and his co-workers at that site where, hey, our employer's bringing in people who might have COVID, we don't like that. And then he had to work alongside them. And he got COVID, um, in violation—
Artie Vierkant 5:41
And this is early 2020, by the way.
Nate Holdren 5:44
That's right. That's right. And so what he thought was going to happen happened. He got COVID. And then his wife got COVID from him, and she had a really serious case, she was hospitalized for weeks, she was on a respirator kept alive for weeks by the respirator. And what happened is a terrible injury to her resulting from his exposure at work.
And so that's the kind of basic, just the harms that happened. The employer knew or should have known what it was doing, it violated a clear public health order. Did it anyway, she got really hurt. And as we, you know, certainly, you know, and your listeners will know, there's an immediate injury and suffering. There's also: that's really expensive.
And so they file a suit, to say that she was harmed by his employer's actions. Now, one of the things that's—there's a lot of legal minutiae here, a lot of rabbit holes, I think one of the things I think, we want listeners to take away is not to be intimidated by the minutia and try to—I think a lot of the legal rhetoric encourages us to concentrate on the details and miss the forest for the trees.
Beatrice Adler-Bolton 6:57
Mhm.
Artie Vierkant 6:57
Yeah.
Nate Holdren 6:59
And I think that, so there's some particulars in here, but like, there's a particular law in California about how much responsibility employers are expected to take. And it's more 'progressive' than is the norm for the US. Like I said, there's also this public health standard in place—public health order in place. And I think a big thing I would want people to take away is that none of that mattered at the end of the day!
Artie Vierkant 7:22
[ laughs ]
Nate Holdren 7:22
Right? And so that there are these kind of nominal protections that are, it turns out when the harms get intense enough, don't really matter. So what I'm trying to say there is that this is, the Kuciembas are in a relatively favorable policy and legal context, and they still get hurt tremendously and abandoned.
And I think that that tells us something, part of the big picture here, it tells us something about what the state is looking to do, which is abandon people because it seems too expensive to not.
Artie Vierkant 7:52
Yeah, absolutely. And I think this is one of the things that's really interesting to me about the case, because there are kind of two questions at issue here where they set it up.
And actually, I guess, before I get into the two of those, I would say, you know, as Bea kind of alluded to, this was a highly expected case among, you know, industry and among white shoe law firms basically all over the country, you know, preparing for what sort of precedent this would set.
But there are a lot of, you know, there are dozens and dozens of these so called "take home" COVID court cases, which I think is like a perverse and interesting way that they get discussed in the first place.
But you know, [court cases] that have been talked about and cited. But often this one, specifically, Kuciemba v. Victory Woodworks, is the one that would be looked at as like, this is going to be a big watershed moment when this comes down. And so the fact that the ultimate decision was, you know, they looked at these two things, as I was alluding to.
One was: can we say, essentially, that there is a basis under which for this person's partner or for these two people that Kuciembas to sue Victory Woodworks? Is there a basis under which we can say there is a legal framework that could make Victory liable for this COVID infection, right. One, does that framework exist?
Can we say, in fact, that this person taking COVID back with them home from the job site, infecting their wife in the process, and then you know, that developing into a situation where she's, you know, having to be on a respirator, eventually—I mean, notably, this is one case among many, and so in this case, even the person got very sick but did not die, right?
There are several other cases that actually are even cited in this opinion here where actually the person's spouse died, even. From COVID.
Beatrice Adler-Bolton 9:47
Mhm.
Artie Vierkant 9:47
And the ultimate ruling and you know, one case in Wisconsin, one case in Maryland, was, you know, were you guys are not [liable], like the company is not liable. We're not doing anything about this.
The second question though, is: okay, if we can say there was a sort of causal chain here, right? If we can say that were it not for the negligence of the company, you know, would this person have gotten COVID? You know, if we can say "no," and we can say that the company is liable for it, then, you know, is there anything we can do about it?
And the ultimate decision they come to is: well, no. We can't do anything about it. Which, you know, I know Bea telegraphed already.
But I think the ultimate decision that they come to is, oh, yeah, yeah, that's a harm. That thing that happened to you. Yeah, that's fucked up.
But I have to tell you, you know, if we were going to do anything about that? Ooh, boy, don't even get me started. Like, with the consequences on that. We couldn't possibly think of doing something so disruptive to businesses, to employers, as to make them liable for any of this.
Because your problem, you know, you, person coming to the courts for redress or whatever.
Your problem situates you—you're like, butting up right against the jagged edge of the political economy, essentially, where if I were to do something about your thing, there's all these other people that we'd have to do stuff about.
And, you know, I can't fuck with that, like as a as a judge or something like I yeah, maybe I kind of have a role in shaping and policing the edges of that, you know, boundary—of those boundaries of the political economy. But the at the end of the day: shit happens, I guess?
Nate Holdren 11:25
And you know what'd be really fucked up is if we tried to do something about that shit. Nothing personal!
Beatrice Adler-Bolton 11:30
Well and I think one thing that's important to say that, you know, we are all taking for granted here and that I think a lot of people don't necessarily know, which is that, especially listeners who are not in the United States.
So like the US has multiple different levels and types of court systems, right? And there are different ways of accessing your rights through the courts. And some of those ways fall under the umbrella of civil litigation.
And under civil litigation, you've got a much broader series of kind of like harms that can be redressed, you can get more money in, you know, remuneration from whoever you're sort of seeking to claim caused your injury.
So it's a, it's sort of like a more favorable context to pursue a case like this. And so what this decision did is it also said that, you know, that pathway is foreclosed on.
That sort of pathway of like a broader option of trying to enforce justice or whatever, or make your partner's employer pay for the COVID infection that you got that, but for the conditions of your partner's work, you wouldn't have gotten that COVID infection at all.
And, you know, to take that out of the realm of civil liability litigation and force it into the context of workers comp is also like a very important and kind of difficult to understand wrinkle here, because basically, what's going on is this case is about the state Supreme Court in California kind of weighing the options as to not whether necessarily things were done wrong in the case of the employer, and the work context and the COVID infection itself.
And in the decision, you know, the court is very clear that, as Artie said, they like reflected the fact that there had been harm done in the circumstance in that infection. But what they're saying is, you know, but we—we're going to still, at this time, basically say that these claims are not appropriate for this kind of broader frame of being able to seek redress, right, and we're gonna restrict it to workers comp.
And so you have this process already, where people who are trying to sue for these so called "take home" COVID infections, they already have like a super high bar of proof where they have to prove to the court that that infection, it's reasonable to assume that that infection came directly from the place of work.
And that is, like a very difficult thing to prove, and has gotten harder and harder and harder as testing has gone away. Right. And the fact of the matter is, is that, you know, the court engages in some really disgusting rhetoric, like, oh, well, you know, COVID just everywhere now! So it's like too hard to prove that you got it at work, like—
Artie Vierkant 14:31
But again, also the case is in 2020. So it is actually—that's one of the aspects that's kind of repugnant to me, it's like, about the moment—even in the moment where the, like—in early 2020, it's safe to say I think that the stay at home orders in California or like the public health guidelines in California are probably among the highest that they got, right? Because we know how things progressively got rolled back.
And so to say, even in 2020, let's apply the, you know, the the new worldview that we've all come to understand about, like from 2021 to 2023—
Beatrice Adler-Bolton 15:11
Retroactively, yeah.
Artie Vierkant 15:11
Let's, yeah, let's apply that idea retroactively, like: well, it seemed like there was nothing we could do about this because it is everywhere. And you know, "we've got the tools." — 'But it was 2020?' — 'Yeah yeah yeah, we've got the tools.'
Beatrice Adler-Bolton 15:22
But this is the thing that just makes me so angry about the idea that the courts are the perfect place to try and assert your rights, right?
Like, because really, what's going on here is that the court's not debating whether or not the employer in this specific instance needs to be punished and pay for this COVID infection, right?
Like the court is looking at this circumstance and saying: are we going to categorically allow this type of, you know, liability on employers writ large?
Or are we going to sort of shift and minimize what that kind of claim of harm can actually achieve each individual person who's suing, and so by pushing it into workers comp, it also pushes these claims out of this sort of like, I don't know, more broad, flexible and accessible claims context of the civil court into workers comp.
Which is a lot—it's the same sort of difficult burden of proof of proving this kind of impossible causal chain of where the infection came from, and pinpointing that. I mean, it's no wonder our testing infrastructure has been dismantled.
When you start to piece apart, you know, what the real anxieties are, especially in the context of this case, like the court doesn't really care about the infection that happened.
They're not really here to think about it or say anything about that context, or provide anyone with any justice. But they're here to make sure that the system learns from that and protects businesses and quote, you know, "the economy" moving forward.
Nate Holdren 16:56
I totally agree. So I think there's some—I don't want to get too much into the minutia. But I think trying to try to read the minutia, so to speak to to help listeners understand how to read the minutia. Then I have another point I want to make.
So, very broadly, what workers comp law does is it says: if you get hurt, you will get some money. Generally speaking, if you get hurt in your job. Not very much money, and there's lots of problems with that arrangement.
That is sometimes taken to be a pro worker law. I think that's a mistake. But what this case brings out is that what workers compensation laws also do is they say: whatever the compensation you got, you're fully compensated.
Artie Vierkant 17:38
Yeah.
Nate Holdren 17:38
So it's not like a, 'what do I deserve?' It's like, you're gonna get what you're gonna get, and what you get, we'll just retcon that to be what you deserve. And so that's a really broad pattern and there's a lot of brutality built into that. In this case, the first phase of the decision is there's a long discussion about what harms fall into that, if you're compensated, the harms are compensated category, and if there's harms that don't.
And what they end up deciding is that—and this is where it's, they decide that Corby Kuciemba does have a right to file their suit because she's independently harmed. She doesn't suffer a workplace accident, she suffers an independent accident as a result of the company's actions—company's behavior.
Whereas if her injury from COVID was logically dependent on him having been injured, right? So—imagine a different scenario. Where he's the one who gets put in the hospital on a respirator, and then they lose their house and she ends up homeless, right? That kind of thing can happen all the time.
My mom got long COVID and for a while we thought she was gonna lose her house. Like that's not a hypothetical scenario, that kind of stuff can happen. In that case, she would not be able to make a claim because her harm, her new situation, is a logical consequence of his having been harmed.
So, and what the court does, it compares this to asbestos. It says, well, if you get hurt from asbestos and your being hurt means that then economic harms follow, or people are sad because they'd have to watch you get hurt—that's all, you're out of luck. Workers comp covers that.
But if you're covered in asbestos when you walk home from the place where you work, and you walk in the door, and asbestos dust gets all in your house, and that hurts your family, that's not dependent on you having been injured.
So that's kind of the analogy they draw. And so that's where they say, yeah, she is allowed to sue. And so the first phase of this [decision], I have a couple of things to say about it. It looks like it might seem progressive for a while and it's really, really not.
Then it gets into like, okay, well, alright, if this was asbestos, you'd be allowed to sue but that's because—you know Artie, you said before, these are people who are at the jagged edge of the political economy.
Essentially what the court says is like, hey, if there's a sharp edge and you get a paper cut, and there aren't very many of you, we can fix that. But if it really cuts you up, and there's a lot of you, well, hey man, that'd be expensive.
Artie Vierkant 20:17
That's just the cost of doing business then.
Nate Holdren 20:18
Yeah, yeah! And in a way it's like that, the thing with the the last financial crisis, right, the too big to fail. It's like, if you really want to succeed in a business where you're harming lots of people, apparently, what you need to do is harm a ton of people a lot.
Because then it's so expensive that no one can stop you. Whereas if you harm a few people somewhat, well, then we can afford to stop you. Like that's part of the rationale. And it's really, it's really, it's, it's startling in how, it's the kind of thing that we as kind of communists say all the time, but it's startling to hear the court say it so directly—
Bea and Artie 20:49
[ laughs ]
Nate Holdren 20:50
of like, hey, that would hurt—that would hurt the economy if we've made all employers stop this. So, nothing personal, but that's just the cost that the working class has to eat. The other thing I did want to say about the minutiae, and I would strongly encourage your listeners if they have the time and energy to look at this decision.
Because like as a genre of writing, I kept having to stop and go do other things. I was so upset reading it. Did you guys—ever seen the movie Brazil, the Terry Gilliam film?
Artie Vierkant 21:17
Oh yeah, for sure.
Nate Holdren 21:18
There's a bit in the beginning when the fly falls into the typewriter. And as a result of that error, somebody else gets taken by a death squad and tortured. And it's like this bureaucratic, you know, like, oh, hey, you know, this, if you fill out a form, we'll give you the corpse back, sorry. It's like this really impersonal, like, hey, we're just trying to make sure all the T's are crossed, and the i's are dotted. And it really draws out a lot of the inhumanity of state violence.
This is like that. Because here's somebody who had to watch their partner potentially die, right? Be in the hospital on a respirator for weeks. From a thing that the employer knew or should have known was going to be incredibly dangerous.
And the court like goes through this long process of like, kind of like the metaphysics of causality like it's this like—the harm, the scale, and the depth and the quality of the harm compared to the kinds of thing and the tone and the demeanor of the court where they're like, you know, just checking to make sure that T's are crossed.
The disjunction there is really intense if you're someone who understands these harms, like, you know, we do and like your listeners do.
And I think it really brings out—to my mind, this really is like a damning example of what the whole legal system's handling of the human consequences of the system's actions are, is that they're just, they're really—I feel it's not I think it's an accident. I don't think it's designed this way.
But I feel like one of the things this draws out is how much the law helps people govern over us without having to actually perceive us. Because they're kind of—they don't even seem to know what they're doing. They're just kind of like, hey, just trying to make sure the harms are rationally allocated.
At the same time, they're talking about this woman having been on a ventilator, but they're talking about it in a way as if they don't know what's happening. I think it's an astonishing document.
Artie Vierkant 23:14
Absolutely.
Nate Holdren 23:14
And it's also not a rare, it's not a rare document, it's just like a, it brings out how often they think this way about us.
Artie Vierkant 23:21
I think that you've just helped me figure out one of the things that was kind of gnawing at the back of my head about this. Because these two things that are set up, right, these two points.
One: is there, you know, can we say the actions of this company harmed this person who is not even an employee, but who was married to an employee of theirs? Yes, we can say that. However, what was the damage to her versus what would be the potential damage to, literally I'll read some of this in a second, but like, they say, the damage to society.
From taking this claim to its logical conclusion and saying, you know, yes, there's a harm here, what kind of precedent that that would set for future case law that would—in the argument here, I would say—gum up the court or like, quote unquote, "open the floodgates." And to that end, I think that the degree to which how this very real harm is then contrasted against this sort of hypothetical harm that they're kind of claiming is disproportionate to the harm that actually did happen.
Beatrice Adler-Bolton 24:37
Mhm.
Artie Vierkant 24:37
Is I think, that's what I mean by like, that's the thing that's been nagging at me, I think in the back of my head trying to figure out how they—not how they reconcile it, because I feel like I understand how they reconcile it and actually, I want to get into some of the language here about how exactly they, you know, present that.
But I think just, you know, figuring out how to understand how directly these two things are lined up against each other. Because when they get to the second part, which, again, we'll read some of the logic of in a second. It's basically like, okay, and now we're just gonna throw away that whole thing that we said in the first part about how this is a valid line of seeking compensation for damages or whatever. That like we can do—that you know, this is a valid claim for her to be bringing.
We're just gonna throw that away. And it's actually not that they're throwing it away. It's actually that they're weighing these two things, you know, the hypothetical, what they think would happen to the capitalist economy under a situation where this was the form of redress for taking this thing seriously, right?
You know, like so many things, obviously, the ultimate thing is like: we're gonna look at this hypothetical harm, we're gonna look at this hypothetical idea, we're going to weigh [it] against this one specific thing that happened and because it happened to one person or whatever, even though we acknowledge that it happens broadly to a lot of people all the time, we're gonna say that the possible harm by acting here would outdo the benefit of having some sort of redress for this situation.
And you know, again, I want to—it'll surprise no one, I think, that I want to get into some of the language though. First, before I read from the decision itself, I want to bring in two things that are arguments made on behalf of Victory, who are the defendant, the employer here in this scenario.
Because basically, this argument that the employer brings, ultimately does end up being essentially what the court says is the reason that they're ruling like, oh, no, naw, we can't do anything about this. Sorry. Like, you know, again, sucks to be you.
So for instance, in Victory's brief, they write [that] if this was decided against the employer that, quote:
"There is simply no limit to how wide the net will be cast. The wife who claims her husband caught COVID-19 from the supermarket checker, the husband who claims his wife caught it while visiting an eldercare home, the member of a sorority who claims a sister while serving on jury duty caught it from the court bailiff. All these people would have potential claims against entities deemed essential to society's ability to function. The financial burden that duty would impose on employers would be devastating. Even if that duty were limited to the [employee's] household, the expansion of liability would be too great in the wake of a replicating virus."
And so, this language brought by the employer, brought by Victory, is then very much reflected in the court's ultimate opinion. So I'm gonna read just a snippet of this, and then maybe we'll read more of it. But just to get to, I think, the heart of it.
Part of what the court writes in its conclusion is, quote, "while employers may already be required to implement health and safety protocols to protect their employees from COVID-19 infections, concluding they owe a duty to the household members of employees has the potential to alter employers behaviors in ways that are harmful to society.
Because it is impossible to eliminate the risk of infection, even with perfect implementation of best practices, the prospect of liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public."
They then compare it to the asbestos thing that Nate brought up—the idea about, well, we acknowledge that if people take home asbestos, if people have asbestos on them when they go home, and then someone gets you know, mesothelioma or something like that, because of employer negligence, then you know, we take that seriously. And so maybe we should too with COVID.
They then write of this, however, in the case of asbestos in the workplace, quote, "there was also a much smaller pool of potential plaintiffs: household members who were exposed to asbestos from an employee's clothing and then went on to develop mesothelioma.
Here, by contrast, a duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. ... Even limiting a duty of care to [employee's] household members, the pool of potential plaintiffs would be enormous, numbering not thousands but millions of Californians."
Beatrice Adler-Bolton 29:21
[ sighs ] Okay, Nate, if you want to jump in here, feel free to go ahead. But I just want to mention that what is being framed here is known as like, I think, the "floodgates" argument of torts law. Which is something that comes up over and over and over again in American civil legal history where you have judges basically weighing in on a case saying, you know what?
The biggest issue here is not necessarily the one at hand, but what my decision on the one at hand potentially does to the entire judicial system, to the economy, and this is a big sort of constant paranoia and a position that's pretty well known and established.
It's like part of how you think about what your role is, as a judge, is to sort of be looking out for these moments where you could potentially open up like, there's a famous quote, "indeterminant amounts of liability for an indeterminant time to an indeterminate class."
And that they're always sort of on the lookout for these moments where a decision could almost like accidentally break, in their minds, the judicial system, offsetting the balance of power.
Nate Holdren 30:33
Yeah they say this really directly. They're like, there will be too many lawsuits. Each one will take a really long time. That would be such a burden on the court system, not to mention, you know, the part that Artie read out about: employers will change their behavior! And that'll be really expensive. You know, I think, among the thoughts I have on this.
One is, so we've been developing, the three of us and some of our comrades, we've been developing this analysis of the pandemic as an example of social murder, right that capitalism kills and has a tendency to kill. And that's built in. That's what capitalism does. This is a response to that. And they don't use that phrase.
But the logic of the argument is, essentially, if the scale of social murder gets big enough, we just have to let it go. Because it's, it's too big to fail, it's too big to stop.
And there's a way in which this decision is very similar in the logic of a lot of kind of center liberals, people who are really in charge of the United States a lot of the time. Where there's this sort of, and I think we've seen this all the time with the pandemic, where it's like: hey, we could do something. But you know what? Doing something is actually worse than not doing something, because the cure is worse than the illness actually. And like, that's this—they say that really directly.
Like, hey, if we stopped this, that would be so expensive to so much of the economy, and they really identify society with the ongoing operations of capitalism. And there's a—this is not stuff that I've tracked personally.
But I think someone could do some really interesting work in kind of like what the rhetoric of "essential" has meant during the pandemic. I've kind of just rolled my eyes at it and not really thought about until we've been talking right now. But there's this thing of like, oh, you're "essential workers," right. So Robert Kuciemba's an essential worker, at a time when non-essential businesses are not supposed to be open.
So he's an essential worker. And then that means he's forced into exposure to harm. And then here, in this decision, the court is like, look, certain social processes are just essential to society.
And that's not a category that provides anything to ordinary people, it's kind of like a, I feel like I use this analogy too much. It's like running the woodchipper is essential. So, climb in. Like, you're not essential. You're just the fodder for the woodchipper, which is essential. And it's just really awful. And they come close to saying that directly, they almost say it directly, but I think they get as close as they could, without actually saying it, right?
That's part of the point is they don't want to disrupt—these institutions and this vocabulary doesn't permit, and that's a feature not a bug, from their perspective, it doesn't permit the reality of social murder to fully be thought. It just permits social murder to be managed by the state. But it's just that notion that like, hey, we have to have these kinds of institutions.
And frankly, they need to operate at whatever level of harm they generate, like, that's the logic of the decision. And because that harm is so omnipresent, there's so much COVID, you're all gonna get it. They're just like, you know, nothing personal, shit rolls downhill. Those of you at the bottom of the hill, you're going to just eat all this shit. And that's just what's gonna happen now.
And it's really striking that that's, essentially they're just saying: this is now built into what it is to have a job. Part of having a job now is the chance that maybe you're going to disable or kill someone who lives with you. That's just a new normal we're in, nothing can be done about it. Nothing personal. Live with it.
And I think that that's something that, you know, is really shocking to hear said out loud. And they almost say it that directly in this case. The other thing I was saying about as I was reading this, I thought a whole bunch about your book, as you know, I'm a big fan. And I think that you know, in Health Communism, you talk about people who are considered "surplus" to the capitalist system.
And I think that there's some people who hear that category and think: there's people who are currently not valued and they get treated terribly. And that's true. Absolutely. But I think the other thing that, what this case really shows, is if you're harmed, you're turned into surplus. So the fact that a population is currently not surplus is not actually protective.
Artie Vierkant 30:46
Right.
Nate Holdren 30:46
If you're in the club for now, that means you haven't yet been harmed. That's all that means. Once you get harmed, you're then out of the club.
And there's all of these rhetorics and processes kick in to justify the fact that you're out of the club and you deserved your harm or nothing can be done.
And I think that's—that's something that really struck me while I was reading your book, I think it's a great book, everyone should read it. I think it's very powerfully articulated in the book.
And it came out really strongly reading this case, where it was like, these are people who were doing everything they were supposed to. They're arguably in the in-group in a certain sense. And the court just said, hey, circumstances changed.
Being in the in-group now—a certain level of in-group, right? They're not high up on the food chain, but being a worker who can get by and having this kind of job, now there's a chance that a trapdoor just opens under your feet now.
And you just have to live with that. And if that happens, you're out of luck. There's nothing for you. Because if we did anything for you, well, that would hurt the people who really matter.
Beatrice Adler-Bolton 35:59
Yeah. I really—thank you, Nate, I really appreciate, it's nice to hear that the stuff you really care about hits the way you hoped it would. It means a lot.
But I feel like what is also at play here, that I think is such an important angle of how the surplus class functions also is that what this is a demonstration of is that being in solidarity with someone who's surplus, being in a household with someone who's surplus: there is discipline, not just on the surplus person themselves, but on the people in their life, too.
Artie Vierkant 36:35
Mhm.
Beatrice Adler-Bolton 36:35
There is punishment on, you know, people who even sort of associate and let sick people into their lives, right?
Like the framework that we're thinking about here. And looking at it this case is not just a definition of who is surplus, but what the relationship is between surplus and worker, and what the employer's relationship is supposed to be to the entire picture. And it takes that and takes the surplus person, and basically puts them in a position of existing in this kind of imaginary island, right?
That we've been talking about the whole time around the pandemic, the idea that the surplus person is not a part of society, right? The idea that the only way you can sort of prove these "take home" COVID cases, as they're called, is like if you can also prove that, for example, the person is not out and about in the world working elsewhere, that it could have only possibly come from the employer's negligence.
So let's say, you know, the same exact circumstance happened someone explicitly because they were exposed due to the very specific circumstances of their employment, if they brought home that COVID infection, and they passed it to their partner and their partner, got sick and was in the hospital, but also worked a job too, where, you know, theoretically, in a court of law, you could argue that it's equally as likely that you got it at your job, right?
Like, it's also basically laying out that the only kinds of claims that are going to be acceptable and looked at are ones where you can verify that the person is surplus, by their isolation, and by their removal from society. And what you have the court really sort of saying here is, okay, so even if, absolutely, this sort of sick person surrounded by the "island of the well" is directly infected as a direct result of the labor relations of the person that they live with, it's not the problem of the employer that this is the structural and social circumstance of COVID transmission right now, because COVID is everywhere.
And therefore it's, I mean, the reasoning doesn't make sense, right? The logic doesn't fucking lay out when you try and speak it out loud, because they're like, because it's everywhere, it's not like asbestos, which is like a specific harm in one place. Right? Like, it's completely, almost like a slippery slope argument.
And I think what's really important to emphasize is that a lot of people who study this kind of idea of the "floodgates" and how that permeates throughout judicial culture and different decisions, they pretty consistently say, constitutional law scholars on both sides, even conservatives, that technically a lot of these decisions by judges have no factual basis.
Right, like the paranoia is full on paranoia, social contagion, these judges have reproduced the idea that they cannot let people access their rights 'too much' last they open the floodgates and, you know, slow down the whole justice system for everyone else.
And what they really are talking about is that it's their job to maintain a balance of power. And that balance of power has a specific direction and a specific recipient in mind. And you and me, the person who got COVID because of their boss, you're not the recipient of that power, and you're not supposed to be someone who gets power through the courts.
And so they're making sure that power flows in the right direction, and that they're maintaining that pathway of not necessarily extraction, but protection from the responsibility and the liability, right, of maintaining any sort of COVID protections, really.
It becomes a kind of situation where the cost of it, right, if everything's based on cost benefit analysis, the judges here are like taking the cost off the table for employers. So it's like if everything's supposed to be predicated now in our COVID-privatized era on, you know, "the good will of employers" and begging insurance companies to be nice and not charge too much money and you know, begging pharma to be nice, then what this is really doing and setting an example for is that, you know, these costs that are supposedly going to motivate employers? Well, yeah, there's a significant amount of political energy invested in making sure that that cost is not burdensome and taken off the table.
And every cost that's taken off the table for industry in the economy and for businesses is really just being foisted onto private people, right? It's the privatization of risk.
Artie Vierkant 41:43
Of course. I mean, and I think to backup the thing that you guys have been saying, you know, they do very explicitly spell out in this court decision, this "floodgates" argument.
They write, quote:
"imposing on employers a tort duty to each employee's household members to prevent the spread of this highly transmissible virus would throw open courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings. Although it is foreseeable,"—they continue—"although it is foreseeable that employees infected at work will carry the virus home and infect their loved ones, the dramatic expansion of liability that the plaintiff's suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services."
And that language, obviously, is grotesque. But I think, to go off of what, you know, the two of you are saying, I think it's very important that we contrast that with the whole rhetoric of "individual risk" and sort of managing and being responsible for your own risk that we have had for so long as, you know, the marching orders of like, especially under the Biden COVID response, right?
Because in so many words, the statement has been, you know, from the Biden administration, like, oh, well, if you're immunocompromised or vulnerable in some way, or you know, whatever, you're just a person and you're still worried about this? You know, just: don't do shit. Don't go outside again, you know, but like, I mean, I hate having to say it like this, because it's almost just a joke, but like, we live in a fucking society, right—
Nate Holdren 41:46
Yes!
Beatrice Adler-Bolton 41:48
Mhm.
Artie Vierkant 41:57
—It's impossible to escape society. Vulnerable people, immunocompromised people—and, you know, obviously, those are not the only groups of people who are at risk of COVID, everyone's at risk of COVID—but like, vulnerable and immunocompromised people, live with people. They live in society. They live in the fucking community.
And, you know, this is why we got so on top of the Biden administration in like March 2022 when they started rolling out this thing that was like, oh, yeah, you know, so going forward, just if you're immunocompromised, like, ask people to test before they visit you.
As though—like always using that language—as though one, the guidance was never meant to speak to immunocompromised or vulnerable people themselves, and as though two, again, you know, immunocompromised or vulnerable people just live somewhere else. Right? They're just somewhere else.
And so, you know, we don't have to worry about them. But then what this Court decision shows very clearly is they're I mean—they're acknowledging, like, look COVID transmission, it's the fucking butterfly effect, right? It's like, we never have this acknowledgement at a policy level, because everyone's finding the language that they have with the tools that their sort of administrative purview gives them, trying to find the angle under which it's not their problem. Right?
So the court saying, you know, oh it would have these disastrous effects on the economy. And so for policy considerations, we can't do this and then the people who are setting the policy, specifically saying like, oh, well, you know, we couldn't get in the way of businesses either, we couldn't possibly do anything about this.
You know, it's just, it's, you know, it's interesting, the degree to which I suppose the argument laid out in this case shows almost the inverse of what the Biden positions have been. But they're both kind of like—when I say inverse, it's like, they're both kind of looking away from the same subject.
Nate Holdren 45:25
I was gonna say, it's like the evil twin, but they're both evil.
Artie Vierkant 45:28
Yeah. [ laughs ]
Nate Holdren 45:28
So—I agree completely. I want to jump back for a second and then come back to what you said.
So you said a little bit ago, you read from the decision where they're like, hey, this could put some businesses out of business. You know and, like, just imagine you're standing in the hospital where this woman is being kept alive on a respirator because her husband's boss gave her COVID, basically, and your response watching that is: boy, I hope no businesses go under because of that! It's so fucking ghoulish.
Beatrice Adler-Bolton 45:59
Mhm.
Artie Vierkant 45:59
Yeah.
Nate Holdren 46:00
And they're like, and you know what, to make sure no businesses have to go under, there's no—we'll take an unlimited number of people on respirators, as long as no business have to go out of business. That's the logic.
I think one of the big takeaways from this, and because as we talked about earlier, at the beginning, California has an ostensibly more progressive standard than is typical for the US for liability for businesses' standards of care. And there was a public health order already in place that the business knowingly violated.
So, even under those circumstances, this is what we get. So I think one of the, like, screaming takeaways from this is that we're really on our own. There aren't institutions that are going to do anything unless they're forced to by movements.
But getting back to what you're saying, I agree completely about the two narratives and how they're like inverse, but complementary, because we're getting the 'oh, hey, be responsible, it's an individual problem' narrative. And then we're getting the 'COVID's over,' it's like, this, as you all have called—repeatedly talked about on the show, "the sociological production of the end of the pandemic," as opposed to an actual end of the pandemic.
And in this case, they have an inverted story where they're like, essentially COVID is everywhere, forever, but the political takeaway is the same. Because it's so the—the policy rhetoric out of the White House and CDC and so on is 'COVID's over, therefore, nothing can be done, nothing should be done.' Harms aren't happening. If harms do happen? Well, that's an individual issue, and we'll sweep it under the rug.
Whereas here, the court says directly and the briefs filed by the Chamber of Commerce and the briefs filed by the Construction Employers Association, say this, and the court takes up the language from them: 'yeah, COVID's everywhere. It's super infectious, and there's no sense that it's gonna go away.'
And so it's like, in a way, the political effect of 'no more pandemic' and 'forevermore pandemic' become identical. And that's also really disturbing. Like, like I said a little bit ago, it's like they've said the scale of social murder is just now so large that it just has to be allowed to happen.
Beatrice Adler-Bolton 48:17
Mhm.
Nate Holdren 48:17
[ pause ] I ... that's really upsetting.
Artie Vierkant 48:20
Yeah.
Beatrice Adler-Bolton 48:21
Fucking infuriating.
And it makes me actually think of one of the really important assumptions that's baked into this framing that we haven't touched on yet, which is like ... okay so the argument is that. If we held employers liable for "take home" COVID, if we made employers give a shit and protect their employees, such that they didn't get sick at work and bring it home. It would open this flood of litigation, right?
Like, this is the anxiety. They're so worried this is going to be an endless series of liability litigation. So like, what's contained in that framing is a vision of the world where liability litigation does nothing to stop the spread of COVID in the workplace.
Nate Holdren 49:15
Totally.
Artie Vierkant 49:16
[ laughs ] I didn't think about that. Yeah.
Beatrice Adler-Bolton 49:16
Like, okay, you're so worried it's gonna explode. It's gonna put businesses out of business. It's gonna tank the fucking economy and ruin society.
What, because people are just gonna continue to proceed to make people sick and not give a shit about it?
Is that what you're saying? Okay. Yeah. All right. That's your vision of the world.
That's a very core and important assumption that's contained within this "floodgate" framing, which is that this also reflects a fundamental disbelief in the legal system's ability to stop, you know, negligent behavior and fucking dangerous working conditions.
And it really is a pretty damning indictment of the very system itself that they're operating within, whose legitimacy they're seeking to preserve by, you know, making sure that they can offer this decision.
But it's absolutely wild to think about the fact that, you know, within the very framing of this is the assumption that this massive, terrifying, tsunami of litigation, as they called it, I mean—wasn't it called a tsunami of litigation at one point in the in the decision, like—that, that in and of itself, this terrifying threat that must be dealt with, with such a decision? That that wouldn't be a deterrent?
Like, that's fucking wild! That's wild assumption.
Nate Holdren 49:19
It's totally wild, and as you were talking Bea, something clicked in my head I hadn't thought about. Where it's like, we are like: 'capitalism is a death machine. Humanity could do better.' '
And some people hear us and are like, that's a kind of wild ... man, capitalism is a 'death machine?' That's kind of overstated.
And basically this decision is saying: 'capitalism is a death machine. But humanity can't do better. So we just need to make sure it doesn't become a broken death machine, because that'd be worse.'
Artie Vierkant 50:45
[ laughs ]
Nate Holdren 51:10
Like, so it's this really strange—and you talked about sort of legitimizing. It's really, to me, I find it very disorienting, because they're not legitimizing this based on any, like, positive qualities.
It's just this like—in a way it's very much like kind of peak Biden Democrat, where it's like, hey, there's nothing for you. But, you know, the alternative is worse than nothing. There's no sort of like, positively selling anything to us.
There's no like, look at the goods. It's just like, take what you have or take something worse. Our job is to be the responsible party as judges to make sure you don't choose worse, because you plebs are stupid and you might do that.
Beatrice Adler-Bolton 51:54
Oh, yeah, no, I mean that they're like selling their own legitimacy, even in the same moment that they're saying that their actions, and this flood of liability lawsuits, wouldn't stop anything.
So they're touting their own legitimacy, even in the moments where they say, like, basically, our actions do nothing to stop harm at the end of the day?
Artie Vierkant 52:13
Well, right. And this is why I mean, this is why one thing I feel you have to remember when reading through this is that there is such like—it has become so pervasive in the liberal worldview, not just the idea that the pandemic is over, and "we have the tools" and therefore, you know, the only people still dying are the ones who like 'did it to themselves' in some way—to paraphrase, essentially, what the Biden administration is saying.
But on top of that, you know, this is part of the long tail, I think of the whole conversation of oh, well, you know, as of Omicron, the virus was just "so contagious," or whatever, that no amount of mitigation that you could possibly do—like, you can try it, but you know, there's always going to be this—like, it's always gonna be there. And it's impossible to orient society otherwise, is then—you know, I think that's very much part of the worldview that shapes this whole—it's like how you could so easily make a decision like this, right?
Because it's like, okay, well, you know, we've got this—Well, it's strange, right, though? Because in one hand it has to both hold in mind, apparently, those ideas that are so pervasive that like the pandemic is over, but then also hold in mind that there would be so much harm happening, that there would be this wave of lawsuits? You know, what I mean?
Like, which is it? Is the pandemic over? Or are you just done with it?
Like, and obviously, I know, it's just that you're done with it.
But that's, I mean—it is very difficult to read this case another way, right? Other than like, okay, we're going to say, yes, it's pervasive. But also, we're not going to take it seriously enough that we're going to be saying, you know, it's pervasive, and therefore, there's going to be so much harm happening, that we have to do something about that great degree of harm. No, actually, the bigger harm would be all of the suits, you know, all the liability, that would fall on businesses or whatever.
And that would be the huge problem, even though, you know, something like 30 states or more enacted what are called shield laws, which means that this wouldn't even get past, you know—this certainly wouldn't get to the Supreme Court[s] of those 30 States if they were trying to sue because there are laws that prevent this type of liability from being sought in court, literally. That were put in as, like, "proactive measures" by lawmakers who wanted to protect businesses from COVID liability.
California is not one of those states, which is why this decision was, you know, looked at so closely.
And, you know, now we have this thing where again, which is it?
Is there so much harm being done that it would be such a burden to society as to possibly "end the provision of essential services"—literally they say, possibly "end the provision of essential services?"
Or is it, you know, just this thing that we're all expected to deal with that is so pervasive in society that we can't hold an employer accountable for it.
Beatrice Adler-Bolton 52:14
Mhm.
Nate Holdren 52:14
I hadn't thought of this until we were talking but something clicked.
So I had this essay a while back on Bill of Health—we talked about it [on Death Panel]—about social murder and depoliticization.
And I've been very, for other reasons—pandemic and other reasons—I've been very interested in this literature coming from a group of Marxists in the United Kingdom about the category of depoliticization.
And it occurs to me as we're talking that that's part of what the court system is doing. That it's absolutely what the Biden administration has been doing. We've talked about that. That there's nothing to be done politically, this is essentially just out of anyone's hands. It's inevitable.
And what's striking to me, I think, in the broader kind of political arena, what's interesting is that, in a way, the only people who are doing politics are the right and they're doing an oppressive politics, right? We're gonna put trans people's rights up for grabs, and then take them away. Right?
Whereas the Democrats are just like, well, there's just, you know, there's no—nothing can be politicized because nothing can be done. And what strikes me here in this decision is there's both, you know, nothing can be done about the pandemic and also what you two were saying, that in a way, the liability is like the threat of politics.
Like if we allow there to be deliberation over liability, just the fact of deliberation in courts, it'd be so many cases that so much deliberation would take so much time and resources. And so even allowing the question of, should something be done about this? Like they're trying to work to prevent that. And I don't think that's unique to the pandemic.
I think that's a part of—so this UK analysis is developed, largely, in response to the Labour Party under Tony Blair. And I think the Clinton Democrats and the Blairite Labour Party are very, very similar. And it's this move of like, there's no politics, we're just technocrats.
But I think that technocratic impulse, in a pandemic context, and in many other contexts, and you all have talked about this, in a lot of ways on your show, is an incredibly brutal, violent posture.
But it's one that allows the people who inhabit it to deny that they're enacting that violence and brutality at the same time they're enacting it just like—like in this case. Where the judges can be like, yeah, you know? Corby Kuciemba, you almost died? Your problem. But they don't have to like really look themselves in the mirror while they say that because of this depoliticizing liberal framework that they operate [in].
Beatrice Adler-Bolton 57:56
Mhm.
Artie Vierkant 57:57
I mean, I'm glad that you brought up that depoliticization angle, because that's something that I've been thinking about a lot in relation to this sort of—you know, as I mentioned, this is like a class of lawsuits, right? This is like a type of lawsuit and looking into it—you know, it's very interesting, because looking into the case law on a lot of these and the sorts of decisions that have been filed in other cases that are relatively similar.
A lot of the conclusions [in these cases] are very similar, actually? We do come up on to this idea of, you know, we're here to hold the line, basically, and to sort of depoliticize this situation Like specifically your comments, Nate, bring to mind this thing, which I wanted to bring in actually, from—there's another court case, which actually was referenced in this one, just briefly. But this is a similar case, although in this case, the person actually died—like this is another situation of a worker brings COVID home with them.
In this case, their spouse died. This is a case that was decided in Wisconsin in June of last year. So June 2022. Ruiz v. ConAgra Foods Packaged Foods LLC. And I wanted to bring this in because the conclusion in this case in particular, while very similar to the one that we're talking about this California case that we're talking about, spells out that sort of depoliticization angle even further. And the decision in this Wisconsin case I think is like much more blunt about its kind of disregard for.. the people, at all. The situation.
Remember, this is a decision written a full year before. So I'm just gonna read briefly from this. This is from the conclusion to Ruiz v. ConAgra Foods Packaged Foods, LLC from 2022, which is again, coming to basically the same decision as this California court did where you know: it'd be too big of a cost to society to do anything about this.
Quote, "In a world where every wrong must have a remedy, the law might provide recompense to a plaintiff against the company whose acts or omissions led to the infection of an employee who ultimately infected the plaintiff"—the woman who died, in this case—"however, as Judge Andrews recognized in his Palsgraf dissent nearly 100 years ago, quote, 'because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic, it is practical politics,'" unquote. That's quoting another judge's decision.
Beatrice Adler-Bolton 1:00:52
[ sighs ]
Artie Vierkant 1:00:53
The conclusion continues, "in a pandemic, that has resulted in some 60% of the United States population contracting the virus, it becomes increasingly impractical to focus on a single outbreak. For the reasons given above, I conclude that imposing liability under these circumstances would impose too great a burden on the defendant, and would enter a field with no reasonable or principled stopping point."
Nate Holdren 1:01:22
It's interesting that it says "arbitrary," but from our line of analysis, it's not really arbitrary. It falls predictably along class lines, right? And—
Artie Vierkant 1:01:32
Yeah.
Nate Holdren 1:01:33
And this, it's—it's hard to take, because it's just really clear, they're like, 'a lot of you are nobodies, and you don't matter.' And they all but say it. It's such a loud subtext.
But they—because it's still in the subtext, they don't even have to admit that that's what they're saying. And like I said, I kept having to take breaks when I was reading the other decision, because it's such [a] hard, ugly statement of the actual reality. And the other thing, I think, I don't know how to put this. This would not be the attitude of these judges if we were talking about the same frequency of hospitalized judges, or hospitalized congressmen.
It's clearly like, for the nobodies at the bottom of the hill, they get one set of outcomes. And for people who matter, further up the hill, well, we don't even imagine this would happen to us.
Beatrice Adler-Bolton 1:02:36
Yeah, I mean, I think one of the things that is really kind of at play here is—you know, let's say there's a hypothetical, right? Judges love hypotheticals. Let's do a wild hypothetical.
Artie gets COVID at work. And he brings it home because the conditions of his employer, and that means that I get COVID, because I'm high risk. And my clown college goes out of business, because I had COVID. Right?
Like, if protections could save a business through a kind of chain of dependency and causality, right, would that make it worth it? Are we then weighing one business against the other? I mean, does that make it more clear that any part of this decision is just a value judgment that's being justified with legalese? I mean, what they are saying, all over this decision is only certain people's lives matter. Get it straight!
Artie Vierkant 1:03:37
Yeah.
Nate Holdren 1:03:37
Yeah.
Beatrice Adler-Bolton 1:03:38
This is a value judgment.
This goes against—I mean, who cares, like, that judges are like hypocritical, right? But like this does literally go against what they're told to do in these instances, which is read the law for what it says and make decisions according to that.
And what people have said consistently about these kinds of like slippery slope arguments, especially when it comes to COVID, and these floodgate fixations of judges is that it's a really important example of who the system of quote unquote "justice" is for, right? Like, you can really see who the object of justice is supposed to be, when you see these moments where, you know, decisions are made and articulated in such a way where they are agreeing 100% that there is structural harm here.
And they are naturalizing what are, you know, the conditions in society, in the world, in the air, in the political economy, in the workplace, that are the result of specific policy and political and public health decisions, right?
And saying, that is the natural order of the world! And so it shall fucking be. And this is how we do politics in the United States and policymaking, right, which is that these inane, bullshit, self rationalized value judgments from, you know, these court decisions, they become precedent and because policy is an iterative process, right?
Like there's a reason that Chambers of Commerce people have been like, drooling over this decision, right? There's a reason that there are, you know, attorneys celebrating this because they represent big corporate clients, like, you know, Walmart or Target, who could really, really be in trouble if the precedent was set, right, that they were somehow suddenly responsible and open to all this liability, right?
So the kind of celebrating—and I think the kind of like, clear sort of target of quote, unquote, "justice" that's obvious here makes so clear that this is really all just a value judgment. And it's completely hidden behind all these different justifications, right?
And at the end of the day, what they're really saying is that if they were to, like, fuck with the dial too much, not only could they destabilize capital's, you know, leverage or power, whatever, but they lose their utility as judges, because that's really what they're there to do, you know, they are there to make decisions that are friendly to the economy. It's important to the state of California to have a good credit score and grow GDP, right?
Like, if they were to decide this differently, I would imagine that they would be inundated with pressure and calls and all sorts of shit from business leaders. And the lawyers that they've hired and—
Artie Vierkant 1:06:36
Oh yeah. Well I mean, the Chamber of Commerce brief in this case was literally—you know, practically reads like a threat of you know, businesses are just going to leave California en mass if you do this.
Nate Holdren 1:06:45
I agree completely. I really liked the way you put it, Bea, in terms of who justice is for. And on that, if I may, on workers comp, and who justice is for. I can imagine some people hearing this and being like, yes, yes, yes, I agree, but the pandemic's an exceptional moment. And unfortunately, I'd say on the one hand, the Biden administration is working to make it where this may be the rest of our lives. It's a forever pandemic.
But also, I want to just note something about workers comp, if I may, even pre pandemic. So the first long part of this decision where they're asking whether or not Corby Kuciemba, who's the woman who got hospitalized, whether or not she can even sue at all, they go through how a lot of harms are just not compensable or they're already built in.
And, very quickly, I have a personal story about this. So—so I'm 11 years older than my youngest brother, and I'm nine years older than my middle brother. And both of my brothers have repeatedly—they work in construction and factory work and so on, and have repeatedly been hurt. And being as much older as [I am], I love them very much and I did a lot of childcare, I helped raise them, I have a kind of like uncle relationship [with them] in some ways.
And they've repeatedly been hurt in workplace accidents, because work is dangerous. And that's profoundly upsetting. And were they to be hurt, and then they lost their home or, my one brother has three kids, like if they were to be hurt, and my brother's kids were rendered homeless, like all of those additional harms that are packed into workplace injury, they're just like shoved aside, and they don't matter.
And the law is built from the jump when it was created in the teens, competition laws are built to just push all of that aside. And, you know, Artie you said it before, like, you know, it seems funny to have to say it, but like we live in a society. And what that means is that individuals are not, in fact, individuals. Individuals are points in networks of relationships.
And so when you hurt a person, there's lots of other harms to that person's network of relationships. And all—basically, none, very few of those real harms which genuinely exist, are comprehensible or legible under competition laws or presentable. And so, even pre-pandemic, there's this line that's drawn, I think that's part of what we're talking about.
There's this line that's drawn that says: most of these harms are just your problem. And we won't even recognize that they exist, let alone give you something for them, let alone try to stop them. And so the pandemic, this case, is especially worrying because COVID is such an intense expression of the tendency for capitalism to kill, but it's an example of, as we've talked about, as you know, I know you all know, I want to make sure for listeners: this is an example of long-standing patterns of social murder.
And the law's response here is an example of its long-standing pattern of saying: how do we minimize the political consequences of social murder for the people who 'really matter?'
It's exceedingly rare that the law or other institutions do anything to actually mitigate or stop social murder. The only times they really do that are in the face of tremendous pressure from social movements and rebellions. I want to just draw that out.
Because I think that it's important to not think of this—parts of the pandemic are exceptional. I don't want to deny that at all. But the logic of what's playing out is actually not exceptional. It's the ordinary brutality of the system. It's the death machine doing what the death machine always does, just in an especially visible and widespread way.
Beatrice Adler-Bolton 1:10:47
It actually makes me think so much of this quote from Jill Quadagno that I actually pulled for this episode, it's from her 1987 essay called Theories of the Welfare State. And she's asking this question of, like, why the state acts in the interest of capital, rather than reflecting the interest of groups in society, so she says:
"While capitalists are generally not conscious of what is necessary to reproduce the social order, state managers must be, for their continued power rests on political and economic order. The central constraint on the decision making power of state managers is business confidence. Individual capitalists make investment decisions on the basis of such tangibles as the price of labor, and the size of the market, as well as such intangibles as the political and economic climate. Business confidence falls during political turmoil and rises when there is a restoration of order. Since state managers are dependent on the investment and accumulation process, they must use whatever resources they possess to aid that process."
So you know—but I do think that really what you're sort of seeing here in so many ways is that what the pandemic lays bear is that the suspension of quote unquote, "normal" operations, things like the Medicaid unwinding, being turned back on, things like student loan payments being turned back on, things that cement, you know, a hard line in the sand about liability.
These are really important components of what the production of the end of the pandemic actually means, right?
It's not all just Biden administration policy. It's not all what the CDC says. It's not all MMWRs.
It is also, you know, what are the kind of institutions of American governance doing to maintain "normal" and restore quote unquote, "order" and erase crisis from the framework? Whether that's things like what we saw with In-N-Out Burger where they are literally prohibiting their employees from wearing masks in certain states.
They can't prevent their employees in California from wearing masks, because there's an explicit law that says, as part of the remaining pandemic protections, you cannot bar employees from wearing a mask. So they got around that in California by issuing a recommendation that was separate from the other states where they were telling employees explicitly like without a doctor's note, you can't mask by saying California employees had to wear N95s that were approved or provided by In-N-Out management.
So you really sort of see the obsession and fixation with ending the pandemic as it's a kind of iterative process, right? Where everybody's looking to everyone else to kind of back up each other's decisions. And we're seeing in real time the normalization of social murder, which was momentarily evident and obvious at the surface, right?
And part of what's going on now, and what we're living through in this moment, is the kind of re-burial of social murder back within the structural, legal and institutional framework in which it normally hides.
Artie Vierkant 1:13:57
Yeah, of course. I mean, but that's the part of the whole process of sociologically producing the end of the pandemic, right, it's naturalizing social murder. Essentially.
It's naturalising social murder that, as Nate was saying, is a long standing process of the capitalist economy, and incorporating now these new, you know, incorporating now the burden of COVID into the regular, again, "cost of doing business," right?
And this is the thing, you know, this is one of the reasons why we've been for so long saying, okay, you wanted quote unquote "back to normal?" Like, this is what back to—quote, unquote "back to normal"—looks like in a situation where you don't actually systemically address the threat of COVID. But you just sort of, you know, push it away to the margins, or are you sort of just stopped talking about it, right? It's the idea of back to normal as okay, now everyone 'knows the risks.'
Everyone understands what their 'personal risk score,' or whatever, is, theoretically somewhere in their head, except for they don't because first of all, that's not a thing that you can actually calculate. Not that it would be a calculation. But that's not something you can actually conceive of, because as we're joking, we live in a society.
And because the thing that I think this case shows actually, very readily, is that we've been sold this idea of understanding risks as that being a sufficient society wide response, while at the same time, the unspoken undercurrent of all that is: of course, when those risks are then taken, or when you're persuaded to go back to normal, [and] something goes wrong, who's liable for that? Who—like, what saves you?
Clearly, it's certainly not the courts. I mean, I wouldn't have assumed that the courts would save you, but I'm just saying, certainly, like an employer is not liable, because 'oh, COVID's just everywhere now.' And, you know, 'you knew the risks' or whatever, 'you took the risk' of—like, employer negligence or malfeasance? Like, 'whatever,' not really a big deal now.
You know, that's what I think frustrates me so often when you see—there's a difficulty that I think a lot of people have an understanding COVID as a very fundamental, like workers rights and labor rights issue? You know what I mean?
Because there's that very kind of specious argument that's like, oh, yeah, whatever people are working, such and such long hours shifts, like, they don't want a mask, they shouldn't have to mask or something like, obviously, that's bullshit. But it's like the complete disavowal of connecting the dots here is just ... you know, I think just this is a very good demonstration of why it is so important to understand these things as as related.
Beatrice Adler-Bolton 1:16:56
Yeah, I also this is just such an obvious example of something we've talked a lot about throughout the pandemic, of really the kind of cost benefit analysis being a gross exaggeration, right?
Where you have the framework of like, 'oh, god, if we were to, you know, redress this very clear wrong, that we all agree is harm, we could open this sort of terrible flood of litigation,' right?
But the fact of the matter is, to prove causal chain—it's impossible now. Without testing. You know, the barriers for proving the fact that this infection came from a workplace were difficult during the early years of the pandemic, but in the context of the moment that they are making this decision and what the moment and pandemic is going to look like moving forward? You know, the burden of proof itself is already such a high bar to clear that this is not a fucking problem.
This is a fake problem that they're concerned with here, right? And you can really see the enormity of the exaggeration when we're starting to engage in these cost benefit discussions of like, well, can we really afford to slow down and protect everyone, can we really afford the costs [to] the economy, you know. What is being weighed there is a minimized perspective of what the life of a vulnerable person is, and who that vulnerable person is, and where in society they are, and what their life is limited to.
And that's weighted against this enormous exaggeration of what the potential downhill consequences could be. I mean, it's, it's fascinating. And it I've been thinking a lot about some of the weird moments in like legal liability history, specifically around disability where, for example—like if you're a blind person, and you're walking down the street, and you hurt yourself, because of construction, because there wasn't a sign, or there's a sidewalk problem, you know, a kind of slip and fall case, right?
If you were not with a mobility aid with a dog or a cane, you have no standing to sue under torts law, because there's a responsibility built into the framework of understanding liability, that disabled people are obligated to rely on assistance or mobility devices.
And if you were not relying on assistance or a mobility device, and you fell through a hole in the street, that's your fault. Like, and this is really ultimately the kind of legal framework that we're dealing with, at the end of the day when we talk about the conditions of employment, you know, in the absence of OSHA regulations, in the absence of CDC guidance, and in the absence of liability protections, right, like we're talking about masking being negotiated at a hyper individual level one-on-one with your individual employer on a case by case basis.
I mean, the sounds like the same way that accessibility is limited by the conditions of the ADA [Americans with Disabilities Act], saying that each and every sort of moment needs to be weighed in its individual context, you know, what are we doing, like, weighing the ways that this could potentially slow down the judicial system against the ways that, you know, this could slow down someone's fucking life to have to jump these hurdles?
We're never weighing those two possibilities in cost benefit analysis, it's always these kind of exaggerated options where the pro business option is exaggerated to be, you know, an urgent priority if not the end of the world, if it's not addressed, weighted against, you know, the very most bare minimum claims from people who are vulnerable or surplus or, you know, just average workers.
Nate Holdren 1:20:42
As you both were talking, I was thinking, I've looked it up, so I want to get the exact words.
There's a line that I think speaks to me a lot, I think about all the time, from Walter Benjamin. He writes, "the tradition of the oppressed teaches us that the emergency situation in which we live is the rule."
So I think in that quote is: very many people are living their lives in the middle of, or in the shadow, or under the potential of a really—a genuinely real kind of catastrophe. And that's just what it is to be at the bottom of the food chain in various ways, is to be forced to live under inhumane circumstances, under arguably catastrophic circumstances, on a regular basis, or under the threat of that.
And that reality is often denied in politics and in culture, but where I think it's—I find it useful to read the kind of like stuff we've been reading today, like these cases, is that in certain kinds of documents, like in legal documents, there's an admission by the powerful, both these judges, and by the Chamber of Commerce, and by the Construction Employers Association, that yes, that's the case. This is everywhere, everybody—people are going to get jacked up. You know, and that confirms a lot of our analysis.
And then what changes as you were saying before, Bea, the real difference is a value judgment about what to do in that reality. And so—I think that's where it, for some of some of our friends and colleagues and family members who may be skeptical of some of the analysis, I think sometimes reading this kind of stuff is helpful, because you can put it in the voice of someone who's decidedly not a radical and quote their words and say, hey, look, here's what they have planned for us.
There's a similar point, people talk about this in terms of economic policy and military stuff too, right? If you read the Financial Times and the Wall Street Journal, you get a sense of what the ruling class is actually thinking. I think this is similar with these kinds of documents, legal documents, is it's a place where the people who really have power in the system face up to the reality that capitalism does consign lots of people to catastrophic lives pretty regularly.
And they need to know that—[the] powerful need to know that some of the time in order to continue to manage the ongoing infliction of catastrophe on us.
Artie Vierkant 1:22:49
Yeah, absolutely. And I mean, you know, I think to a certain degree, that's one of the things that we try to seek out on this show all the time is like—okay, I mean, there are people just saying it all over the place, you know? There are various ways as you're saying, Nate, that they're saying this stuff outright, you know, they're spelling out the logic of this process very directly. Right? They're saying it.
And so, you know, I think the use of that is maybe also to just sort of like—before we sort of wrap out, to bounce back or allude to something that you said earlier, Nate, you know, I think the answer is and remains broad social action. The answer is and remain systemic institutional level intervention. Not necessarily a circus of liability lawsuits, right?
I mean, I think that this is a fascinating text and a fascinating case for a variety of reasons, including, as we're talking about them kind of saying the quiet part loud—the degree to which this does show us that there isn't a floor, there's always a way to rationalize social murder away. Right?
But, you know, if the decision was different, in some ways, it's, you know. Is the ideal way to deal with some form of pandemic justice, you know, a butterfly effect chain of business liability lawsuits? No!
Beatrice Adler-Bolton 1:24:07
Mhm.
Artie Vierkant 1:24:07
You know, in a certain sense—there's a degree to which, obviously, the words that they're using, the way that it's framed is sort of ghoulishly tethered to the consensus of the current formulation of the political economy, with no interest in deviating from it and only wanting to, you know, make sure that they're, I was gonna say, keeping things within the edges, but really, it's just like, you know, monitoring the edge while people fall off of it.
And, you know, we are here and just saying, you know, we don't need an edge.
Beatrice Adler-Bolton 1:24:40
Mhm.
Nate Holdren 1:24:41
I think this decision does two things.
One, it is a decision. It's a choice. And what they've decided is that we're really on our own. They're going to discard who they're going to discard. And I think another thing that we learned from this is, this really confirms—I was convinced already—but this really confirms a lot of our analysis. And that in important ways, powerful actors are actually seeing the objective situation, the social patterns, in ways that fit pretty clearly with our analysis.
But as you said, above Bea, the real differences are in the value judgments they're drawing in response. But they're actually seeing and are aware of a lot of the same patterns that we are. It's not that they don't know it's that they're okay with it.
And that's, again, those are hard realities to sit with. But I think that's one of the things that's valuable about having dug into this together.
Artie Vierkant 1:25:45
Yeah. It's a hard reality to sit with. But it helps define the contours of the enemy, as it were. And that's always useful.
Nate Holdren 1:25:55
Absolutely.
Beatrice Adler-Bolton 1:25:55
Absolutely. And I think that's the perfect place to leave it for today. Nate, it's been so nice to have you back on the show. Thank you, as always, for joining us.
Nate Holdren 1:26:00
It's been wonderful to be back. Thank you for having me.
Beatrice Adler-Bolton 1:26:06
And folks, if you want to follow Nate, you can follow him on Twitter @n_hold uh ... as long as Twitter is still working. [laughs] And he's done some recent writing on Petrie-Flom blog that's really good, so we'll link to that also in the episode description. Patrons thank you so much for supporting the show we couldn't do any of this without you. If you'd like to support the show, become a patron at patreon.com/deathpanelpod. And if you'd like to help us out a little bit more, share the show with your friends, post about your favorite episodes, pick up a copy of Health Communism from your local bookstore or request it at your local library and follow us @deathpanel_. As always, Medicare for All now. Solidarity forever. Stay alive another week.
[Outro Music]