ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Wednesday, May 27, 2020

Contracts Adjacent Issues Raised by Mask Policies

Last week, Jeremy blogged about the tension surrounding masks. Call it the Great Mask Divide, this tension that has resulted in sometimes violent flare-ups between those who refuse to wear masks and those who don’t want the maskless anywhere near them. As so often happens when people talk about their constitutional rights, there have been some egregious examples of legal ignorance regarding what a “right” is. The Great Mask Divide also raises contracts-adjacent issues having to do with consent, autonomy and authority.

There have been reports of people refusing to wear masks in stores and even resorting to violence to protect their so-called “freedom” to go maskless. But the Mask-Averse are wrong. There is no such freedom – in fact, there is no right to do much of anything on someone else’s private property. A store owner can enforce a strict “no-shirt, no-shoes, no-mask, no service” policy. The misguided shoppers who belligerently refuse to obey store policies can and should be kicked out – and if they don’t leave when asked, they are trespassing.

Shoppers who argue vehemently for their right to go without masks fail to recognize the rights of others. If you don’t want to wear a mask, shop elsewhere. But you have no right to stay on the premises and you certainly don’t have a right to physically attack the security guard who is asking you to leave.

On private property, the property owner gets to set the rules. Mask policies are contractual the way that other private property notices are contractual. Think of mask policies as real world TOS – you “click” when you walk onto their property. They are less intrusive than actual TOS, however, because they do not purport to restrict you even after you have left their premises.

Store policies that require masks are not just for the protection of the shoppers – they are for the protection of the store’s employees. The employees have no choice but to enforce store policies, and they often have no choice but to work at that store and breathe in customers’ exhalations.

These employees have rights, too. They have a right to a safe workplace. The store’s policies are designed to protect the health and safety of their employees, too. These policies are contractual – or quasi-contractual - between the business and its employees.  Businesses have a right to adopt their own business practices including their own employment policies which protect their employees from illness and reduce their chances of getting sued.

The Great Mask Divide is essentially the classic American conflict that arises when individual liberties collide with the collective interest. In these individual v. collective conflicts, it helps to remember that the rights accorded to Americans belong to all Americans. Autonomy is not a possession held by one individual; it is a concept that applies to every individual.

The rights granted under the Constitution are not intended to protect any one individual’s autonomy, but to protect the autonomy of individuals. I refer to this in my book Consentabiity: Consent and Its Limits as “collective autonomy” rather than individual autonomy because the autonomy interest applies to every individual and does not privilege any one individual over any other.  Contract law recognizes collective autonomy and it is most obvious in doctrines such as illegality, fraud, duress and unconscionability, where the expectation interest of one party is outweighed by a greater societal interest.

One person’s right to participate in or refrain from participating in any activity – whether it’s carrying a gun, refusing to wear a mask, or refusing to get vaccinated – depends upon whether it conflicts with the interests of another person. If there are more people whose interests are directly and adversely affected by one individual’s activity, that activity should be regulated, restricted or banned (depending upon the nature of the interests affected). Wearing a mask while shopping is a minor inconvenience compared to the risk of contracting a deadly virus while shopping/working from someone who is not wearing one.  

The Mask-Averse threaten not only the health of those around them, but the economy. Businesses must adopt reasonable safety measures, or many of their customers may stay home and their employees may quit or get sick. There may be a second-flare up if businesses are not careful about how they restart.

The collective autonomy interest in avoiding death, serious bodily injury and economic devastation far outweigh any one individual’s right to breathe without a mask within six feet of another whenever and wherever they want. Mask-mandatory policies will facilitate the opening of the economy and help make it go much more smoothly. As this pandemic has made clear, our fates are tied together and the only way to transition successfully into the New Normal is through cooperation and compromise – not by being wrong about what is a “right.”

Commentary, Current Affairs, Miscellaneous | Permalink


Interesting blog post.

I totally agree with the need to strike a balance among the different rights and conflicting interests (shoppers with heterogeneous preferences, shop owners, employees, society [the economy] at large). I also strongly agree with your call to acknowledge others’ rights and interests (ie exercise empathy), and the need to cooperate and compromise. Though I am not sure the science is clear on whether masks are effective in this pandemic.

Just like any other right, property rights are not absolute. I think the question is where and why we limit owners’ rights in light of public interest/policy. Can your rationale – put blatantly “I am the owner so I decide” – be used to justify a bakery that is unwilling to serve gays? A restaurant owner who is unhappy to serve blacks, Jews, or Asians? Or perhaps a mall that does not allow in shoppers who carry guns?

Different countries have different approaches as to the legitimacy of limiting private law rights and entitlements due to collective needs, concerns and values. It’d be interesting to place your argument/analysis in such a general context.

Posted by: S.B. | May 27, 2020 9:33:25 PM

In my book, I develop a "hierarchy of autonomy interests." On this hierarchy, the right to be free from serious bodily injury is much greater than most any other right. A shop owner would not have the right to harm you by punching you while in the shop. So the shop keeper doesn't have unrestricted rights - it's just that the shop keeper's interest in keeping its employees , customers and self safe (which is both an economic and bodily integrity interest) outweighs a shopper's interest in not wearing a mask (which is a very weak autonomy interest because it doesn't really cause any harm to the shopper to wear one). In your example, by contrast, the shop keeper's property right does not outweigh the collective autonomy interest in equality on the hierarchy. It does, however, outweigh, an individual's autonomy interest (not "right", because there is none) in wearing or not wearing a clothing item on private property - think of the "no shoes, no shirt, no service" requirement. I think without a hierarchy of autonomy interests, any discussion of "rights" becomes unmoored.

Posted by: Nancy Kim | May 27, 2020 9:49:33 PM

Nancy has ably answered from the perspective of a rights theory, but I think there is also an answer from the perspective of positive law. Property owners are free to set the rules of conduct on their property within the bounds of law. So, a different way of answering S.B.’s questions is just to say that there are federal, state, and local laws that prohibit discrimination. As to Masterpiece Cakeshop, the Supreme Court will eventually tell us whether there must be religious exemptions from state laws that prohibit such discrimination against LGBTQ folks, but as a general matter, the balance between general and individual autonomy interests are embodied in positive law. Similarly, a property owner (a mall, a Starbuck’s, a private university) can create gun-free zones unless the legislature prohibits such private ordering.

Posted by: Jeremy Telman | May 28, 2020 5:13:48 AM

Thanks, Jeremy. Of course, you're right but I thought the poster was asking why we had those laws (the rationale for allocating rights in this way) rather than why we had to behave that way (which would be because the law requires it).

Posted by: Nancy Kim | May 28, 2020 7:37:14 AM

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