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Wednesday, October 08, 2014

On Being Sued, 1

In 2011, I published a paper called "Of Meat and Manhood." It's a paper about vegetarianism and sex discrimination. It's about how discrimination has changed in the half decade since Congress passed the Civil Rights Act. And it's about what the future of civil rights law might look like.

Here's a link to the version posted on the Wash. U. Law Review's website. Look at the bottom of the page. There's a link called "Editors Note to Of Meat and Manhood." When you click on it, a pdf opens, which says the following:

Editor’s Note: The allegations that are drawn from the publicly filed complaint in the case of Pacifico v. Calyon et al., No. 100992-2009 (N.Y. Sup. Ct. filed Jan. 26, 2009), are footnoted or sourced to the Pacifico complaint in the Law Review Article. The defendants in that case filed answers denying the referenced allegations of the complaint. Subsequent to the Law Review Article’s publication, the plaintiff in Pacifico voluntarily discontinued the case with prejudice.

No one ever said lawsuits produce poetry.

In late December 2013, I was sued in federal court in New Jersey. The case was dismissed in May of 2014, in a decision by Judge Engelmayer of the Southern District of New York. I haven't spoken much about the case--first because I couldn't while itigation was ongoing, then because I didn't want to.

So now I'd like to share some thoughts. Here's my first take. 

I learned about the lawsuit from a reporter, who email me for a comment. I had no idea what she was talking about. I had to google the plaintiff's name. Now when you google his name, a picture of me comes up. How strange to be linked to someone I will probably never meet.

When I write a paper, I think a lot about who my audience is. Until I got sued, I never imagined anyone but lawyers and professors would read what I write. It didn't occur to me that, if I wrote about a case, the parties to the case might read it. And even more importantly, they may not like what I have to say. Maybe I was naive about that. If you knew the people you were writing about were going to read the paper, would it change the way you write? I know it has changed the way I write. 

The primary claim was for defamation. There were also supporting claims for publication of private facts and false light invasion of privacy. I wasn't the only defendant, at least initially. The plaintiff also sued Wash. U. and Western New England College of Law. Wash U published the paper in its law review. I gave a lecture at WNEC about the paper. I gave probably ten or so talks at different schools about that paper. WNEC was the only one that put the talk online.

The basic facts were this. The plaintiff in my case was the defendant in an employment discrimination case in 2009. The plaintiff in the underlying case alleged that he was fired because he was vegetarian and perceived to be gay. When I wrote my article, that case was still ongoing, stalled somewhere in the pre-trial phase. It was voluntarily terminated--I assume because of a settlement--in 2012, more than a year after my paper was published.

How did the plaintiff (my plaintiff) find out about my paper? I don't kow for sure. I've always assumed he googled himself and stumbled upon my stuff. I few blogs and other outlets wrote about my paper, so he could have found me indirectly. At the hearing on my motion to dismiss, counsel for plaintiff said that the plaintiff served on a Federal Reserve Board subcommittee and that another member of the committee had seen the article. So perhaps the plaintiff learned of it from someone else.  

A couple more things to set the stage.

1. As a professor at a public law school, I am a state employee. Not only did the university support me, but so did the state of Arizona. The Attorney General's office coordinated my defense. Indemnification is a beautiful thing. 

2. As a state employee, I am covered by the state's notice of claim statute. In order to sue an agent of the state, a plaintiff must give notice of the claim in advance of filing suit. That did not happen in this case. If we hadn't won at the motion to dismiss stage, we likely would have prevailed at summary judgement, when the notice of claim issue would have come before the court.

3. Before the lawsuit, I always thought academic freedom was something lazy professors raised when something was required of them. Academic freedom, you can't make me teach the statute of frauds! Academic freedom, you can't make me assign a different casebook!  Not anymore. I love academic freedom. And not just because I was able to use it to cover my ass. Academic freedom is why we are able to do this for a living. To write and explore, to fight for justice and right wrongs, to make the world a better place, one measly law review article at a time.

4. I always hoped my scholarship would be covered by an outlet like the Wall Street Journal. I never imagined I would have to get sued for that to happen

5. In the world of injustices, my lawsuit is small potatoes. But it wasn't to me. It was something that loomed large in my life for well over a year. Even if the lawsuit never had much of a chance of success--which many people told me from the start--for me it always felt very real, very accute, and very scary.

More to come.

Posted by Zachary Kramer on October 8, 2014 at 03:08 PM in Employment and Labor Law, First Amendment, Life of Law Schools | Permalink

Comments

Great post, thank you for sharing!

Posted by: Geoff | Oct 8, 2014 7:30:29 PM

I appreciate this post. Also, the article is very interesting too.

Posted by: Joe | Oct 8, 2014 8:42:42 PM

Thanks, Geoff and Joe.

Posted by: Zachary Kramer | Oct 8, 2014 11:45:07 PM

Thanks for writing. We don't need academic freedom very often, but when we do - we do.

Posted by: Michael Risch | Oct 9, 2014 8:10:39 AM

Thoughtful and inspiring. Thank you for sharing.

Posted by: Alberto Alemanno | Oct 9, 2014 9:22:49 AM

"The Attorney General's office coordinated my defense. Indemnification is a beautiful thing."

Thanks for that post.

I'm interested in the law of lawyering issues. How did the selection of the particular lawyer and paying that lawyer (if it wasn't a government lawyer) happen? When you say the AG office "coordinated" the defense, what did you mean by that? Does that mean you chose your own attorney? Or were you repped by someone in the AG's office (and, if so, did that matter to you)?

Posted by: John Steele | Oct 9, 2014 10:39:13 AM

I'm curious: If you had signed an indemnification agreement with Wash. U. L. Rev. (assuming you didn't), would Arizona State and the state of Arizona still supported you?

Posted by: BAG | Oct 9, 2014 2:17:31 PM

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