Prawfsblawg can be remarkably entertaining sometimes thanks to the efforts of Kate Litvak, who should have her own blog. Basketball player Eddy Curry may or may not have a genetic heart condition that could kill him. The Chicago Bulls refused to let him play without a DNA test that (perhaps) could determine whether he has the condition. Curry refused the test, and the standoff was resolved by a trade to a different team that didn’t require the DNA test.
The Bulls’ concern was no doubt magnified by the fear of liability and the inability to trust Illinois courts to enforce a waiver as legally binding, raising second-order questions of genetic privacy and discrimination. Cf. the similar questions in the Johnson Controls case, 499 U.S. 187 (1991).
The post is interesting enough. But if you have an aversion to sports, you might have missed the real fun in the comments.
First, Ethan Leib argues passionately that it’s wrong for the Bulls to impose themselves on Curry’s right to risk his life to play for the NBA.
Kate Litvak is encouraged by this.
Ethan: are you advocating getting rid of all paternalistic laws or only those that apply to professional athletes? … For example, should we allow stupid people to put their *bodies* in danger, but not allow them to put their *money* in danger? (The latter would affect one’s position on securities and debtor-creditor laws). Should we allow stupid people put their bodies in danger by participating in crazy sports, but not by taking medicine that’s not FDA-approved? … Just wondering how far Ethan wants to take his “leave-me-alone” position.
Attorney Paul Gowder has the solution that permits paternalistic laws while leaving Curry free to play basketball: Curry “is in a very different position from an ordinary person facing decisions about credit cards, home loans, etc. and staring at incomprehensible documents, or making decisions about risk on things like motorcycle helmets when they have no information. He can afford doctors, who can advise him on the health risks so that he will make an intelligent and free decision.”
A fascinating epitomization of the litigation culture: “ordinary” people can’t make intelligent and free decisions, but elites—presumably including lawyers and judges—can properly advise them how to do so.
Paul’s proposed rule of emancipation upon reaching a certain wealth level has interesting ramifications. It would be fascinating to see what democratic political consensus would develop for where to set the Gowder Line above which people are permitted to make free decisions. Many doctors and attorneys would be sufficiently wealthy to qualify, but would public interest and government attorneys protest that, through no fault of their own, they don’t have the same rights as BigLaw partners and their children? Would college professors lobby for the same emancipation rights as wealthy millionaires because they’re already sufficiently sophisticated? And once that happens, would the NEA dare to suggest that teachers aren’t entitled to the same status? Before you know it, every Sneech will have a star on his belly. Maybe a formalization of the Gowder rule wouldn’t be so bad after all…
One Comment
Is There a Minimum Income Necesary to be Responsible?
There is an interesting discussion about liability going on at Overlawyered and Prawfsblawg. The original subject was Eddy Curry, the basketball player who may or may not have a genetic heart condition. The Chicago Bulls refused to play him until