Monday, May 05, 2014

Opening Up the Discussion on Student Evaluation of Teaching

Yesterday I gave you links to sources pointing out some reasons why teaching evaluations--as currently done at many schools--do not always provide accurate or useful data.  Thanks for the comments!

Today, I'd like to open a problem solving conversation by relating  some information  I picked up on my way to getting a Ph.D. in higher education:  A) Measurement (assessment) is far harder than it looks; B)  It's impossible to measure something unless you first identify what it is and C) There's no point measuring something without an understanding of why you want the information. 

There is a vast literature available with ideas about evaluating faculty.  Have a look here, here  and at these thoughts from AAUP.   Our problems in legal academe with misusing student evaluations is that we aren't necessarily asking the right questions of the right people in the right way.   Evaluating curriculum is very different from evaluating teaching.  I think it's more than reasonable, it's important to involve all stakeholders (students, faculty, administrators, alumni, and the general population of future clients) in decisions about what to teach and how to teach it.  I will be writing more later about how medical schools have been doing this over the past 30 years.   But its not fair (or even helpful) to confuse assessing how well an individual professor is doing her job with what that job should be.

I think it would be very helpful if every school considered its own individual goals and objectives for classroom instruction.   And I'm going to put forward some suggestions below about how that might happen.

But first, in the words of noted  legal practice guru Prof. Laurie Zimet of Hastings, lets all remember "we aren't going to solve this problem today."

So what does it mean to decide first what we should be measuring?

Well, lets say a faculty decides that every class teaching a subject on the bar exam be organized according to how it will be tested.  In Torts, that would mean a professor who spent more time on intentional torts than negligence wouldn't meet this standard.   How could that be measured?  What about syllabus review?  

Or, maybe a faculty decides that each of our students deserves to have their outside of class questions answered within two business days.   Of course we ask the students themselves--but why just by anonymous survey?  What about interviewing a small group of students and ask them for examples of times they've asked for help and how the professor responded.

I'm not recommending punitive inspections.    What about having a peer visit the class a few times during a semester and then immediately meeting with the professor to discuss what they saw?  Maybe not for every class, but what about first year professors, professors up for promotion, or where there has been a problem reported?  

Is all of this more work than glancing at a scantron sheet--yes.  But deciding what needs to be going on in our classrooms and then finding out if that's happening  is very important.

Finally--how we evaluate professors is a key component in what kind of teaching we get back (same is true with students).  In other words, we are likely to get back what we measure.

So what do you think?  What should we be doing in the classroom--and who should be evaluating it?  How can we separate evaluation of teaching with evaluation of curriculum?  And where in your institution can you find the resources to review how well what you're measuring reflects what you really want to know?

 

 

 

 

Posted by Jennifer Bard on May 5, 2014 at 06:11 PM in Life of Law Schools, Teaching Law, Torts | Permalink | Comments (3)

Wednesday, April 30, 2014

Of (Courtney) Love and Malice

Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones.  Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well. 

Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of  "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages.  However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.

These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed. 

The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.

The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so. 

And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling  a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.

Posted by Lyrissa Lidsky on April 30, 2014 at 06:30 PM in Blogging, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (0)

Wednesday, July 10, 2013

A Missed Opportunity: Cert. Grant in Air Wisconsin v. Hoeper

In June the Roberts Court granted certiorari in its first libel case, Air Wisconsin Airlines
Corp. v. Hoeper
, __P.3d__, 2012 WL 907764 (Colo. 2012), cert. granted __U.S__
(June 17, 2013). For a media lawyer, this development should be exciting. Unfortunately the Supreme Court granted certiorari limited to a narrow question of relatively little relevance to the media. Here's the story. 

In Hoeper an employee of Air Wisconsin Airlines informed the Transportation Safety Administration that an Air Wisconsin pilot was a possible threat and might be unstable. Earlier in the day, the pilot had failed a flight simulation test and had lost his temper, shouting and cursing at Air Wisconsin employees conducting the test. Air Wisconsin previously had stated it would fire the pilot if he failed the test. After the pilot’s outburst, employees of Air Wisconsin discussed his behavior and the fact that a TSA program allowed him to carry a weapon on an aircraft. An employee then reported the pilot to TSA as mentally unstable, potentially armed, and disgruntled over having been fired that day. The pilot sued for defamation.

Air Wisconsin moved for summary judgment based on the ATSA immunity provisions, but the trial judge denied the motion on the grounds that “the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.” After rejecting the airline’s claim of immunity, the jury found its statements to TSA were defamatory and made with actual malice. The trial judge entered the jury’s verdict of $1.4 million, and the airline appealed. A Colorado court of appeals affirmed, holding that the jury’s finding of actual malice was supported by clear and convincing evidence, and that statements at issue were neither opinion nor substantially true.

The Supreme Court of Colorado affirmed. Although the trial court erred in “submitting the immunity question to the jury” rather than determining the question as a matter of law before trial, the Colorado Supreme Court held that the error was harmless because Air Wisconsin’s statements were not entitled to immunity. Under the ATSA, an air carrier is not entitled to immunity for reporting a security threat to TSA if the report is made with knowledge or reckless disregard of its falsity. The Colorado Supreme Court determined “based on the record evidence” that Air Wisconsin’s defamatory statements were made with reckless disregard as to their falsity. Indeed, the court found that clear and convincing evidence supported the jury’s finding of actual malice. The court also determined that the statement that the pilot was “mentally unstable” and thus a threat to airline security was not a protected opinion but instead implied a false assertion of fact. The court found “substantial and sufficient” evidence to support the jury’s determination that the statements were false.

Three justices, dissenting in part, contended that the court’s opinion “threatens to undermine the federal system for reporting flight risks.” The dissent contended that the air carrier’s statements about the pilot were substantially true, because the pilot had indeed had an angry outburst during a training session and was facing termination at the time Air Wisconsin employees reported him to TSA. According to the dissent, Air Wisconsin thus was entitled to immunity as a matter of law.

Obviously the scope of air carrier immunity under the ATSA is an important question, and a narrow interpretation of that immunity might deter air carriers from reporting employees who pose threats to air safety to the TSA. From a media lawyer's perspective, the case raises another important question, and one with which lower courts have struggled: Must courts engage in independent appellate review of jury determinations of falsity in defamation cases involving matters of public concern?  The Supreme Court long ago held that courts must engage in independent appellate review of the jury's actual malice determinations, and actual malice must be established with "convincing clarity." See Bose; Sullivan. "Actual malice," of course, is a term of art meaning knowledge or reckless disregard of falsity. Because the actual malice determination is so closely linked with the falsity issue, some but obviously not all lower courts have assumed that they must independently review jury determinations for "clear and convincing evidence" of falsity. Indeed, the Reporter's Committee for Freedom of the Press filed an amicus brief in support of Air Wisconsin's petition for certiorari, urging the Court to take the case to resolve the uncertainty among lower courts regarding whether independent appellate review of falsity determinations is required.

Alas, the Supreme Court granted cert limited to the question whether a court may deny an air carrier statutory immunity under ATSA for reporting an employee as a threat, without first determining that the air carrier's report was materially false. As documented here, the Roberts Court has shown little interest in addressing the concerns of the Fourth Estate, and its limited grant in Hoeper arguably continues that trend.

 

Posted by Lyrissa Lidsky on July 10, 2013 at 11:22 AM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

Tuesday, June 18, 2013

Libel Law, Linking, and "Scam"

Although I'm a little late to the party in writing about Redmond v. Gawker Media, I thought I'd highlight it here because, though lamentably unpublished , the decision has interesting implications for online libel cases, even though the court that decided it seems to have misunderstood the Supreme Court's decision in Milkovich v. Lorain Journal.

Redmond involved claims against "new media" company Gawker Media based on an article on its tech blog Gizmodo titled Smoke and Mirrors: The Greatest Scam in Tech. The article criticized a new tech "startup," calling it " just the latest in a string of seemingly failed tech startups that spans back about two decades, all conceived, helmed and seemingly driven into the ground by one man: Scott Redmond." The article further suggested that Redmond, the CEO of the new company, used “technobabble” to promote products that were not “technologically feasible”  and that his “ventures rarely—if ever—work.”  In other words, the article implied, and the title of the blog post stated explicitly, that Redmond’s business model was a “scam.” Redmond complained to Gizmodo in a lengthy and detailed email, and Gizmodo posted Redmond's email on the site. Regardless, Redmond sued Gawker and the authors of the post for libel and false light. Defendants filed a motion to strike under Califonia’s anti-SLAPP statute. The trial court granted the motion, and the California appellate court affirmed.

Unsurprisingly, the appellate court found that the Gizmodo article concerned an “issue of public interest,” as defined by the anti-SLAPP statute, because Redmond actively sought publicity for his company. The court described “the Gizmodo article [as] a warning to a segment of the public—consumers and investors in the tech company—that [Redmond's] claims about his latest technology were not credible.” This part of the decision is entirely non-controversial, and the court's interpretation of "public interest" is consistent with the goal of anti-SLAPP laws to prevent libel suits from being used to chill speech on matters of significant public interest.

More controversial is the court's determination that Gizmodo's use of the term “scam” was not defamatory (and thus Redmond could not show a probability of prevailing). The court noted that “’scam’ means different things to different people and is used to describe a wide range of conduct;” while the court's assertion is correct, surely at least one of the "different things" that "scam" can mean is defamatory. [For a similar statement, see McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) ]. While the term "scam" is usually hyberbole or name-calling, in some contexts the term acts as an accusation of criminal fraud, especially when accompanied by assertions of deliberate deception for personal gain. However, the court found that "scam" was not defamatory as used in the Gizmodo article, relying heavily on the fact that the authors gave links to “evidence” about the fates of Redmond's prior companies and his method of marketing his new one.  The court concluded that the statement that Redmond's company was a “scam” was “incapable of being proven true or false.”

It is clear that the court's categorization of the statements about Redmond as “opinion rather than fact” relied on online context--both the conventions of the blog and its linguistic style. The court asserted that the article contained only statements of opinion because it was “completely transparent,” revealing all the “sources upon which the authors rel[ied] for their conclusions” and containing “active links to many of the original sources.” Technology-enabled transparency, according to the court,  “put [readers] in a position to draw their own conclusions about [the CEO] and his ventures.” The court also stressed the blog's  “casual first-person style." The authors of the article, according to the court, made “little pretense of objectivity,” thereby putting “reasonable reader[s]” on notice that they were reading “subjective opinions.”

As attractive as this reasoning is, especially to free speech advocates and technophiles, one should read the Redmond decision with caution because it almost certainly overgeneralizes about the types of "opinion" that are constitutionally protected. The Supreme Court's 1990 decision in Milkovich v. Lorain Journal clearly and forcefully indicates that a statement is not constitutionally protected simply because a reader would understand it to reflect the author's subjective point of view.  Instead, the Milkovich Court held that a purported "opinion"  can harm reputation just as much as explicit factual assertions, at least when it implies the existence of defamatory objective facts. Hence, the Court declared that the statement "In my opinion Jones is a liar" can be just as damaging to the reputation of Jones as the statement "Jones is a liar," because readers may assume unstated defamatory facts underlie the supposedly "subjective" opinion. Moreover, even if the author states the underlying facts on which the conclusion is based, the statement can still be defamatory  if the underlying facts are incorrect or incomplete, or if the author draws erroneous conclusions from them. The Court therefore rejected the proposition that defamatory statements should be protected as long as it is clear they reflect the authors' point of view, or as long as they accurately state the facts on which they are based.  [This analysis is freely borrowed from  this article at pp. 924-25, full citations are included there.]

 

Posted by Lyrissa Lidsky on June 18, 2013 at 03:24 PM in Blogging, Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (2) | TrackBack

Tuesday, January 03, 2012

Flash Mob Litigation

According to conventional wisdom, the core policy behind class actions is to overcome the fact that small recoveries all by themselves "do not provide the incentive for any individual to bring a solo action."  Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 616 (1997).  However, a report by the Associated Press today suggests another way to motivate consumers to reap the benefits of collective action: go viral.  Rather than accept her $200 payout from a class action settlement for her poorly performing Honda Civic hybrid, Heather Peters filed her own lawsuit for $7,500 in small claims court.  She then created a website, Twitter account and YouTube video to spark a "small claims flash mob," encouraging other Honda consumers to do the same.  According to the AP, "if successful, it could lead to a flood of similar lawsuits."   One news story dubs the strategy "Small Claims 2.0."

A number of commentators have pointed to the increased reliance on networks and social norms to replicate or improve accountability, access and information in complex litigation.  See, e.g., Elizabeth C. Burch, Litigating Together: Social, Moral and Legal Obligations, 91 Boston U. L. Rev. 87 (2011); Byron G. Stier, Resolving the Class Action Crisis: Mass Tort Litigation as Network, 2005 Utah L. Rev. 863 (2005); Howard Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 Duke L.J. 381 (2000).  These arguments may have even more force in light of the Supreme Court's decisions in AT&T Mobility v. Concepcion and Walmart v. Dukes, which both sharply limited the use of the class action to resolve broad and diffuse wrongdoing by a single defendant.  Even early structural reform litigation, like that in Brown v. Board of Education, famously relied on networks of attorneys, public interest organizations and experts to coordinate litigation strategy and share information.  However, I do not know of other attempts to spur "flash mob aggregation" without lawyers, in small claims court, arbitration or other trial-like settings.  I'd be curious to hear if any of you have heard of similar efforts.

As I explain after the jump, I doubt that social media can really make up for the decline of the modern class action or other forms of legal aggregation.  However, such efforts, if carefully controlled, may complement efforts to achieve more access and equity in complex settlements.

Social Media as Collective Litigation?  The story's claim that an individual success in small claims court "could lead to a flood of similar lawsuits" in small claims court is highly unlikely.  Nor could a win, or even a string of wins, represent a new or effective substitute to class action litigation.  The Supreme Court's instruction in Amchem about "solo action[s]" represents a basic truth about small claim class action litigation. There are many impediments for individuals who choose to litigate by themselves. Individuals must develop their own evidence, retain witnesses, expend time, and support their claim for damages with a well-grounded legal theory.  Most studies of small claiming patterns suggest that these problems, combined with apathy, inertia and cognitive bias, will persist.   

Class actions thus level the playing field with defendants who, for strategic reasons, are willing to invest substantial resources in individual cases.  Facing two hundred independently prosecuted claims for $100 each, a defendant might invest up to $20,000, in developing crucial expert evidence on a pivotal common question of liability, whereas each of the plaintiffs might invest up to only $100.  Unlike individual plaintiffs, defendants have every reason to take into account the big picture; they don’t litigate cases one at a time.   See, e.g., Sergio J. Campos, Mass Torts and Due Process, _ Vand. L. Rev. _ (forthcoming 2011); David Rosenberg, Mass Tort Class Actions: What Defendants Have and Plaintiffs Don’t, 37 Harv. J. Legis. 393 (2000). Accordingly, class actions allow plaintiffs to litigate with the same broad view.  This is one reason why recent Supreme Court decisions forcing consumers out of class actions, and into individual arbitration (which look a lot like small claims court), are seen as victories for defendants.

Social Media as a Compliment to Aggregate Litigation.  On the other hand, social media could make class actions work more effectively.  An effectively coordinated effort to opt for small claims litigation, over a class action settlement, could at least provide a modest signal to a court that the class action settlement insufficiently compensates class members.  See, e.g., John Bronsteen & Owen Fiss, The Class Action Rule, 78 Notre Dame L. Rev. 1419, 1441 (2003) (arguing that individuals who opt out are signaling dissatisfaction with the suit and are protecting their own interests); Christopher R. Leslie, The Significance of Silence: Collective Action Problems and Class Action Settlements, 59 Fla. L. Rev. 71, 80 (2007) (critiquing the approach of courts that rely on opt-outs as a signal).  And that may be the case in the Honda class action settlement. 

Social media could also combat the phenomenon of “under-claiming” in large settlements – where parties neglect to opt out of a settlement, but never claim an award. See Deborah Hensler, Class Action Dilemmas: Pursuing Public Goals for Private Gain 82, 458-60 (2000) (surveying class action settlement funds and finding the fraction of funds actually disbursed was “modest to negligible” in so-called “claims-made” settlements, where class members are asked to come forward and claim compensation).  An online campaign to collect on the Apple iPod Battery settlement is one such success.  I describe some similar ways to combat opt-out problems and underclaiming using cognitive psychology in Adam S. Zimmerman, Funding Irrationality, 59 Duke L.J. 1105 (2010). 

But even these approaches should be adopted with caution.  Social media could be manipulated by rival attorneys, or defendants, to undermine notice.  Judges generally have to ensure that claimants are not swayed by entrepreneurial lawyers that seek to sabotage the settlement and may police what can be said to potential claimants to ensure that they make unbiased decisions.    See, e.g., In re Visa Check/Mastercard Antitrust Litigation, No. CV-96-5238, 2006 WL 1025588 at *4 (E.D.N.Y. Mar. 31, 2006) (observing that “this is not a run-of-the-mill business environment, subject solely to market forces and the principles of contract and tort law that control behavior in that environment. The fact that the merchant class is huge does not alter the nature of the Court's relationship with its members … I have an affirmative obligation to protect those interests.”); Georgine v. Amchem Products, Inc., 160 F.R.D. 478, 498 (E.D.Pa.1995) ( “[a] remedy is appropriate if the communications at issue create a ‘likelihood’ of abuse, confusion, or an adverse effect on the administration of justice.”).  The benefits of any attempt to use "flash mob" techniques in a class action – preventing avoidable harm to claimants – must outweigh the potential costs, including the value of client autonomy, the chance of error, and the burden on the courts and public administrators.

Posted by Adam Zimmerman on January 3, 2012 at 09:33 PM in Civil Procedure, Torts | Permalink | Comments (0) | TrackBack

Monday, January 02, 2012

The September 11 Victim Compensation Fund (Redux?)

Thanks to Dan and everyone at Prawfs for having me this month.  I'm new here, so a little background about me before I begin:  I teach and write in the areas of complex civil procedure, torts, mass torts, and administrative law.  After clerking for Judge Jack Weinstein, I served with Kenneth R. Feinberg in the administration of the September 11 Victim Compensation Fund.  The VCF was an unusual, no-fault scheme designed to expeditiously compensate personal injury victims and families who lost loved ones in the 9/11 attacks.  And most of my recent scholarship has tracked the way that large publicly-created funds -- that is, funds created by legislatures, government regulators, criminal prosecutors, and states attorneys general -- compete with class action and mass settlements to provide similar kinds of relief. 

So, today marks two significant anniversaries for what I do.  First, it's the ten year anniversary of my original start at the September 11 Victim Compensation Fund; it would publish its final regulations a few months later in March 2002.  After a somewhat slow start, the Fund was very successful by, at least, one measure: at the end of the VCF's short, two year existence, over 98% of the families chose to file claims with the VCF instead of  pursuing individual litigation.    

Second, today marks exactly one year since President Obama signed the James Zadroga 9/11 Health and Compensation Act, a bill Congress passed in the waning days of 2010 to reopen the VCF.  The bill represented the culmination of efforts by many people -- first responders, the New York Congressional delegation, Senator Kirstin Gillibrand, and perhaps most famously, The Daily Show's Jon Stewart -- to compensate rescue and recovery workers who also suffered from toxic exposure as a result of the attacks, but otherwise did not manifest injuries in time to file before the original deadline in 2004.  Both VCF I and II attempt to serve goals long associated with workers compensation, "no-fault" insurance, and for that matter, class action settlements: to provide more legal access, efficiency and equity than the sometimes idiosyncratic, fact-intensive nature of  individual litigation.  Yet, the VCF II will present some unique challenges to its newest administrator, Sheila Birnbaum, a lawyer who, like Ken Feinberg, brings incredible talent, intelligence, and experience to a very difficult task.  I'm only beginning to study the VCF II, but I thought I'd share three ways that I think VCF II differs from its predecessor.  All three raise problems common to all state-sponsored efforts to provide procedural, corrective and distributive justice to victims of collective harm.  

1. Heterogenous and Fact-Intensive Claims.  A large number of the claims filed in the VCF I, sadly, sought compensation in wrongful death.  The VCF II instead largely involves claims for personal injury.  (As of today, it appears that no wrongful death claims have been filed with the VCF II).  The central questions raised in the original VCF raised extraordinarily difficult personal, philophical, and political issues.  Among other things, was a payment from the fund more like a form of government sponsored social-welfare -- privileging need, efficiency and equality -- or like a private tort claim, which values loss, individualized process and exteremly variable awards?  

The VCF II will have far more trouble making these determinations with an overwhelming number of personal injury claims.  The VCF will have to evaluate cases ten years after the event,  and in some cases, resolve difficult and highly individualized questions of exposure, proof, non-economic damages of pain and suffering, and scientific causation. (One can see this by comparing the "grids" released by each iteration of the VCF.  The VCF I grids allows prospective claimants, as well as the public, to estimate awards based on a few, select variables -- age, marital status, and income.  The VCF II "grids," released just last week, cannot replicate detailed grids for the different kinds of physical injuries suffered at different times by first responders.)  The VCF II can rely on the experience of other government entities to determine that someone is totally disabled, like regional workers compensation and social security determinations.  And parties can retain lawyers with experience from the original VCF.  But for the many volunteers and subcontractors working in ground zero who lacked employment benefits, the VCF II will have to expend more effort to meet common goals of transparency, speed and fairness. 

 2.  The Limited Fund.  The original VCF was unusual in that it represented an unlimited appropriation from Congress.  Unlike most private class action or mass settlements, Special Master Feinberg could spend an unlimited amount of money to compensate an eligible, individual claimant for his or her economic and non-economic losses.  The VCF II, by contrast, contains a double cap.  First, Congress set a cap on the total awards that may be paid by the Fund at $2.7 billion.  (The original VCF distributed over $7 billion for a much larger class of people--to the survivors of 2,880 persons killed and to 2,680 individuals injured in the attacks).  But less discussed is the second cap: the special master can only distribute one third of that amount ($875 million) over the first five years of the Fund's existence.   The remaining two-thirds must be distributed, a second time, in the final sixth year of the Fund.  As a result, initial payments will be pro-rated at perhaps as low as 10% of the total due to a claimant, which may be too little (and too late) to cover pressing medical and financial needs.  Moreover, applicants may never really know their compensation award until 2016-17, several years after the statute requires claimants waive their rights to private litigation. 

To address these concerns, Special Master Birnbaum indicated that she would try to account for claimants who "have suffered or will suffer" greater harms than others.  But she recognizes a Solomonic-truth common to many other kinds of private class action and other kinds of aggregate settlements that involve limited resources.  She is "not in the position to compare the urgency of each claimant's needs and resources." At least, that is, until she reviews a large number of claims filed over the five year life of the VCF II

 3.  Lawyers and Their Fees. The original VCF placed no limit on attorney fees, only a recomendation that lawyers attempt to limit their fees to 5% or less of any award.  Attorneys were largely able to meet this challenge for three reasons.  First, the original VCF benefited from an unprecedented outpouring of pro-bono support, organization and shared resources among attorneys and victim groups.  Second, for paid counsel, the legal costs of submitting many wrongful death claims was comparatively lower than traditional litigation.  No proof of fault was required.  Expert reports, to the extent they were submitted at all, could focus only on damages.  Third, awards to survivors were high; unlike personal injury claims, they averaged over $2 million for each family.  The presence of this adequately financed legal support was critical to the smooth, informed operation of the Fund and to achieving a measure of procedural justice--allowing lawyers to tell family members' stories effectively and meaningfully.

 I suspect that securing legal representation for the VCF II will be more difficult, particularly in light of Points 1 and 2, above.  The VCF II covers a larger number of complicated claims (Point 1) than the original and involves, on average, lower and more uncertain awards (Point 2).   However, Congress capped attorney fees at 10% of any award, and it is unlikely that attorneys will be able to match the unprecedented level of pro-bono service and coordination that followed immediate aftermath of September 11.  Special Master Birnbaum has stated that she is committed to making the VCF II work without lawyers -- the original VCF expressed a similar goal, too.  Some have compared this kind model of compensation to "inquisitorial justice," relying on adjudicators and administrators, as opposed to lawyer-advocates, to assist people who petition the government for relief.  However, the VCF I and II illustrate the importance of lawyers in particularly complex claims, with limited resources, that pressure administrators to make difficult distributive questions between deserving parties.  In these cases, lawyers may actually reduce administrative costs, enhance access, and improve the chances like cases will be treated in a like manner.   

 

Posted by Adam Zimmerman on January 2, 2012 at 09:23 PM in Civil Procedure, Torts | Permalink | Comments (4) | TrackBack

Saturday, December 10, 2011

Copyright and Your Face

The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook's much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.

Let's start with the idea's constitutional flaws. There are relatively few constitutional limits on Congressional power to regulate copyright: you cannot, for example, have perpetual copyright. And yet, this proposal runs afoul of two of them. First, imagine that I take a photo of you, and upload it to Facebook. Congress is free to establish a copyright system that protects that photo, with one key limitation: I am the only person who can obtain copyright initially. That's because the IP Clause of the Constitution says that Congress may "secur[e] for limited Times to Authors... the exclusive Right to their respective Writings." I'm the author: I took the photograph (copyright nerds would say that I "fixed" it in my camera's memory). The drafters of the Constitution had good reason to limit grants of copyright to authors: England spent almost 150 years operating under a copyright-like monopoly system that awarded entitlements to a distributor, the Stationer's Company. The British crown had an excellent reason for giving the Company a monopoly - the Stationer's Company implemented censorship. Having a single distributor with exclusive rights gives a government but one choke point to control. This is all to say that Congress can only give copyright to the author of a work, and the author is the person who creates / fixes it (here, the photographer). It's unconstitutional to award it to anyone else.

Second, Congress cannot permit facts to be copyrighted. That's partly for policy reasons - we don't want one person locking up facts for life plus seventy years (the duration of copyright) - and partly for definitional ones. Copyright applies only to works of creative expression, and facts don't qualify. They aren't created - they're already extant. Your face is a fact: it's naturally occurring, and you haven't created it. (A fun question, though, is whether a good plastic surgeon might be able to copyright the appearance of your surgically altered nose. Scholars disagree on this one.) So, attempting to work around the author problem by giving you copyright protection over the configuration of your face is also out. So, the proposal is unconstitutional.

It's also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer - subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine - it invites courts to inject their normative views into the analysis. It also creates extraordinarily high administrative costs. It's already expensive for filmmakers, for example, to clear all trademarked and copyrighted items from the zones they film (which is why they have errors and omissions insurance). Now, multiply that permissions problem by every single person captured in a film or photograph. It becomes costly even to do the right thing - and leads to strategic behavior by people who see a potential defendant with deep pockets.

Finally, we already have an IP doctrine that covers this area: the right of publicity (which is based in state tort law). The right of publicity at least has some built-in doctrinal elements that deal with the problems outlined above, such as exceptions when one's likeness is used in a newsworthy fashion. It's not as absolute as copyright, and it lacks the hammer of statutory damages, which is probably why advocates aren't turning to it. But those are features, not bugs.

Privacy problems on social networks are real. But we need to address them with thoughtful, tailored solutions, not by slapping copyright on the problem and calling it done.

Cross-posted at Info/Law.

Posted by Derek Bambauer on December 10, 2011 at 06:03 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Property, Torts | Permalink | Comments (4) | TrackBack

Monday, December 05, 2011

The End of Hockey (Fighting)?

Unlike Wasserman, Vladeck, and Bodie, I'm just a nerd with little interest in and patience for following the sports pages these days. (Unfortunately, I still have tons of useless trivia stuck in my head from my days of fandom as a kid.)

Nonetheless, I've been drawn into John Branch's series of pieces on Derek Boogaard in the NYT this week. Boogaard died at the age of 28 not long ago, due to an overdose from painkillers. He was a brutal "enforcer" for his hockey teams, and the series by Branch effectively underscores the complicity of officials, owners, coaches and fans in the gladiatorial aspects of Boogaard's life and death. Notwithstanding too many links to videos of important fights in Boogaard's career, I highly recommend the series so far. (The links are too tempting and I feel like Leontius looking back at the executioner's carnage.) I'd be surprised if it's not a finalist for a Pulitzer. More importantly, I think it shows to a wide audience of NYT readers just how pervasive the senseless violence on the ice is; it might also spur some important changes to the game of hockey itself. 

Importantly, if Boogaard's family sought the chance to do something (and maybe without them too), the series could lay the foundation for the kind of tort litigation/media onslaught against the hockey industry that we've seen work (and not work so well) in other areas. Boogaard was a bruiser, and, from my criminal law perspective, I could see all sorts of reasons why local and enterprising DA's might try to make a case against him and the "enforcer" crew of which he was a critical part (consent as a defense be damned!). But he was, as the articles show, vulnerable to all sorts of social influences and financial incentives that others bear responsibility for as well. Not every social problem requires legal redress in the courts. But even (or especially) if the NHL won't fix itself -- and it seems to have resisted efforts to change the penalty structure for more than 90 years -- I hope it will be spurred to change by moral entrepreneurs in the courts and elsewhere inspired by Branch's series on Boogaard. There's no reason for thinking that brutal disabling fights are a necessary feature of hockey. And if they are, then I'm all in favor of a new sport of senseless violence-free shmockey.

Update: I've been alerted to Jeff Yates' paper on reducing violence in sports through criminal prosecutions. And you might want to check out the NYT's latest report: namely, that Boogaard's head was massively diseased from all the concussions he suffered.

{Signed, verifiably addressed, and substantive comments are invited.}

Posted by Dan Markel on December 5, 2011 at 03:25 PM in Article Spotlight, Culture, Current Affairs, Dan Markel, Sports, Torts | Permalink | Comments (14) | TrackBack

Tuesday, November 08, 2011

Where does it start? Where does it end?

This week, the American Association of University Women released information from a study that said that almost half of students in grades 7-12 have experienced sexual harassment in the last school year. Although more girls than boys reported being the target of sexual harassment at school, defined by the nonprofit research organization as “unwelcome sexual behavior that takes place in person or electronically,” boys and girls alike were identified across the board as harassers and victims. Rumors and jabs about students’ promiscuity and sexual orientation looked to be a significant part of the reported behavior, and victimized students reported deleterious tangible effects of the harassment that resulted in physical ailments and missed school days.

It is very interesting that most of the concentration of awareness, prevention efforts, and campaigns around schools has dealt primarily with the problem of bullying, when, in fact, the nature of the bullying has apparently been so overwhelmingly sexualized and gendered. This is especially ironic when one notes the fact that in the workplace, bullying is wholly lawful, while sexual harassment may result in corporate liability. Even more ironic and unfortunate, because sexual orientation is not a protected class status under federal law, many courts have rejected harassment claims made by homosexuals because although in many cases, they are being abused because of their failure to conform to gender norms, the courts see them as trying to advance claims that are ultimately not cognizable. Referring to someone’s sexual orientation (actual or perceived) as the reason for an adverse employment action is similarly seen as lawful under federal law. Moreover, in all but a few courts, “generalized vulgarity,” even that of a somewhat sexual nature, so long as it is not directly targeted at one sex, is seen as lawful as well.  

Yes; 56 percent of girls, as opposed to only 40 percent of boys reported being harassed in school, but these are still relatively large numbers that reveal the pervasiveness of sexualized verbal and physical abuse aimed at children of both sexes by children of both sexes. Has society become too preoccupied with the notion of students being bullied to notice how much of this bullying is sexualized?  Have those who set forth the law of the workplace been too preoccupied with the idea that actionable workplace abuse be “because of sex” as per title VII for lawmakers to pass the anti-bullying statutes that have come to their attention, but have not been passed, in 21 States since 2003? There are currently 16 anti-bullying bills active in 11 states, but proponents of the Healthy Workplace Bill, a model statute that has yet to be passed, cannot seem to convince lawmakers that employees’ dignity and sense of well-being at work need to be protected when threatened outside of a “because of sex” context, or some other context that would implicate currently cognizable harassment.

Of course, there is the argument that children are fragile and should be spared the indignities of sexual harassment and bullying, whereas adults in the workplace are just that—adults. When workplace bullying, even gendered workplace bullying comes up in my class, many of my students (male and female alike) take the position that people generally need to “toughen up” and “move along” if workplace bullying (even gendered bullying) becomes too much for them to bear. With so many people leaving school and “graduating” to the workplace each year, however, I wonder how much longer it will behoove us as a society to fail to call attention to both the sexual harassment that goes on in schools and the generalized bullying that goes on in the workplace. 

I have written and will continue to write about the connection between this attitude and the professional status gap that exists with respect to women and minorities, and I continue to think that this connection is worthy of consideration.  We can only look at skewed statistics as to who is assuming leadership roles in every arena from politics to law, to industry, to the academy, and tell ourselves that some people just “don’t have what it takes” or “can’t tough it out,” for so long before we stop and reconsider whether “what it takes” is aligned with the traits and values we want to see reflected at the top of organizations from Wall Street to Washington.

We might want to rethink everything we thought we had decided about what is going on and what is being permitted at every stage of the education, training, evaluation, and promotion of American employees and decide whether the cultures that we’ve permitted to take hold might be weeding out  hardworking and talented people and ultimately thwarting the goals of equal access, equal opportunity, and the eradication of discrimination held out by Title VII.

Posted by Kerri Stone on November 8, 2011 at 08:58 AM in Torts, Workplace Law | Permalink | Comments (4) | TrackBack

Tuesday, September 13, 2011

The Real Housewives Get Real

Ever since the Star Wars Kid video went viral and he sued his classmates for intentional infliction of emotional distress, I’ve wondered whether tort law could support a cause of action for increasing the visibility of non-private information.  The issue raised itself again with the commencement of the second season of The Real Housewives of Beverly Hills, the Bravo reality show.

If you’re not familiar, the Real Housewives series tracks a hand-selected group of women, many of whom live at the upper end of the income scale (although recently bankruptcies have hit some).  The series is fair game for trivialization—certainly, the $60,000 Mad Hatter birthday party thrown by Beverly Hills housewife Taylor Armstrong for her 4-year-old wasn’t exactly hard news.  Yet even reality shows can’t seem to escape reality.  

A few weeks ago, The Real Housewives of Beverly Hills got very real when Taylor’s husband Russell was found dead, which the coroner determined was a suicide.  Based on the previews, it appeared that the upcoming season would feature Taylor and Russell’s financial and marital problems as a significant story line.  I’m assuming that their problems were not private, there seems to be no end to the coverage overturning every possible detail. 

The season began on schedule.  Suddenly, a show about pumped up kicks and private jets turned into something completely different.  Russell’s mother had threatened to sue Bravo if they air a single frame featuring him this season.  A recent discussion in The New York Times observed that, “Bravo’s determination to slither past suicide and accountability was, well, chilling.”  For the moment, I’m going to leave aside questions of taste. Although no case has yet been filed, it seems far from clear that a standard application of the law could intervene between Bravo’s magnifying glass and the Armstrongs.  For an interesting treatment that touches on notions of privacy in a modern era, Danielle Keats Citron’s Mainstreaming Privacy Torts offers several useful insights. 

 

Posted by Amy Landers on September 13, 2011 at 12:44 AM in Torts | Permalink | Comments (3) | TrackBack

Thursday, July 21, 2011

What Makes it Okay for Reporters to Trespass After Disasters?

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Brian Williams, reporting in April 2011 from tornado-ravaged Tuscaloosa, Alabama. In the bottom image, Williams is bending over to inspect a bride-and-groom cookbook apparently given to the newlyweds who had occupied the house. I should say that, in this particular clip, Williams seemed to know so much about the residents, it's plausible they were consulted and gave permission. (Top image from an NBC Special Report, next two images from Charlie Rose.)

Am I alone in being bothered by the fact that so many television news reporters, on the scene of a natural disaster, consider themselves at liberty to traipse through people's ruined homes and buildings, rifling through what they find there?

I recall after the Tuscaloosa tornado in April 2011, Brian Williams went into some home – or what was left of it – and found a DVD of University of Alabama football in the remains of someone's home. He picked it up and attempted to say something poignant about it on camera. It struck me – why does he think he has the right to do that?

Maybe television reporters sometimes get permission from owners before they go into homes or buildings. It's possible Williams did in that circumstance. But I certainly doubt that's the custom and practice. A common lack of permission also seems evidenced by the way reporters often speculate about who may have lived there and what may have happened.

As my fellow torts professors know, the law of trespass to land is quite strict. No damages are needed to make out a claim. And there's no need for bad intent. Plain-old going on to someone's land is actionable. That doctrine reflects our society's deeply felt commitment to the integrity of a person's land and domicile.

I'd bet most evening news viewers imagine there's some sort of legal privilege for reporters to do this. But, of course, there's not. Unless they've gotten permission from the lawful possessor, it's trespassing. It's also invasive. Of course it's not exactly the same as News of the World's phone hacking, but it is certainly similar.

I know, of course, why it's not a scandal. It's not done surreptitiously. Moreover, there's now a well established practice of post-disaster rummaging by TV news crews. We've become inured to it. Granted, it's also probably harmless. In fact, it's not hard to argue that it's beneficial, since we generally consider it to be a good thing when the journalistic press offers in-depth reporting on issues of public interest. But I'm not convinced that makes it right.

 

Posted by Eric E. Johnson on July 21, 2011 at 10:17 PM in Property, Television, Torts | Permalink | Comments (1) | TrackBack

Monday, July 18, 2011

What will Congress do regarding the tax treatment of punitive damages?

For the last couple years, I've been interested in the proper tax treatment of punitive damages as a consequence of my collaboration with my erstwhile colleague, Gregg Polsky, who's now at UNC. There have been some developments on this front that should be of interest to both practitioners and legal academics interested in litigation, tax, and torts. And that's why I'm curious, as the title of the post suggests, what Congress will do. To begin, Gregg and I wrote a piece that came out last fall in which we argued that (1) plaintiffs should be able to introduce evidence to the jury or judge regarding the marginal tax rate associated with business defendants in punitive damages cases so as to allow a tax-informed "gross-up" of punitive damages, and (2) that the tax-informed jury/judge (with an ability to gross-up) was a better solution to "the insufficient sting" concern than the option touted by President Obama, which was simply to remove the ability of businesses to deduct payments of punitive damages as ordinary business expenses. The arguments we made in this piece were largely analytic and prescriptive given the constraints and goals established by the current doctrine as we saw it. Importantly, we think the arguments of our paper should trigger lots more interest by plaintiffs' tort lawyers, since they now have a set of tools that can increase the recovery for their clients in a variety of tort cases involving malicious or reckless misconduct.* In response to these arguments, we were delighted to see that Professor Larry Zelenak from Duke and Paul Mogin (from Williams and Connolly) wrote responses to our piece for Virginia Law Review's online companion, In Brief. Gregg and I now have a working draft of our reply up on SSRN, entitled, Revisiting the Taxation of Punitive Damages. Thus, in an Escheresque-turn, we now invite comments on our comments on their comments on our paper :-)

On a related note, I earlier this year published a companion paper that took a more expressly normative perspective on the optimal design of the tax treatment of punitive damages. That piece -- Overcoming Tradeoffs in the Taxation of Punitive Damages -- is now out, and I've just recently put up a final version on SSRN. In that article, I explained that the tradeoffs created under current law between ostensibly unnecessary plaintiff enrichment and proper tax incentives for business defendants could be overcome by implementing the punitive damages reforms of the sort I have recommended elsewhere.  These reforms would disaggregate the purposes of punitive damages more clearly so that the optimal deterrence function and the victim vindication function could be separated cleanly from the function of vindicating the public's interest in meting out a retributive intermediate civil sanction. More specifically, I argued that the proper tax treatment of the punitive damages (with respect to whether the defendant's payments should be deductible or not) will depend on what goals states have for their punitive damages regimes, and what goals the federal government has with respect to subsidizing those regimes.  Now, if I were you, I'd be wondering, what's Markel know about tax? That's not an unsound intuition. But I had a lot of help from Gregg and a gaggle of other tax prawfs, and my hope is that this piece will be of interest to anyone intent on understanding the full tax dimensions of punitive damages design specifically (and penalties more generally), especially and insofar as these penalties relate to optimal deterrence, victim-vindication, or public-interested retributive justice. 

Last, Gregg and I have just seen one of Congress' Joint Committee on Taxation reports for 2011, and we noticed that the Committee has acknowledged our argument, but hasn't really grappled with its implications fully. So, at this point, we are waiting to see what happens. Our hope is that the Obama Administration and folks in Congress (and the relevant lobbyists too!) read our work and realize that a repeal of the deductibility of punitive damages will interfere with both the appropriate punishment of business defendants and the states' choices to run their tort system in a way that achieves the goals they intend to set out for themselves.   

* Here's how a friend of mine described to his partners at a prominent class action firm the gist of the claim Gregg and I advance with respect to settlement dynamics and the benefits of our argument.

I think the upshot is that if Ds know you have a credible threat of getting the jury to award more in punis because of the gross-up threat, they'll settle for a higher amount.  Same logic as when you try to get a high pre-trial settlement based on the argument that the jury pool in the particular area is plaintiff-friendly.  Eg:
 
1.  expected compensatories = 1m
2.  expected punis (with jury unaware of tax issues) = 3m
    expected punis (with jury informed about tax deductibility) = 4m (because they know the pain to D is only gonna be 2m)
3.  chance of victory = 25%
 
settlement value under old scenario = (1+3)*25% = 1.00m
 
settlement value under new scenario = (1+4)*25% = 1.25m

 

Posted by Dan Markel on July 18, 2011 at 01:38 PM in Article Spotlight, Dan Markel, Retributive Damages, Tax, Torts | Permalink | Comments (0) | TrackBack

Wednesday, May 11, 2011

Interesting Defamation Claim

Premier Exhibitions can proceed with a libel claim against a human rights foundation that claimed that the dead bodies it used in its "Bodies" exhibition were those of executed Chinese prisoners obtained on the black market.  A federal district court in Florida (Judge Merryday) refused to dismiss the claim for lack of jurisdiction, since the website of the director of the human rights foundation was accessible in Florida.  There are other interesting facets, including a tortious interference claim.  For more, see here.

Posted by Lyrissa Lidsky on May 11, 2011 at 10:01 AM in First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

Thursday, May 05, 2011

The Free, Open-Source Torts Compendium

Torts_compendium_cover_tn

Last year I blogged about my project to create a free, downloadable casebook for torts. The completed casebook, broken into two volumes with an online appendix, is done and online. At James Grimmelman's suggestion, I will write a teacher's manual over the summer, which will be available to instructors upon request.

If you are in the market for a new torts casebook, mine has the following features: (1) It's free. And students love free. Paperback copies can be obtained at cost through a print-on-demand vendor (Town & Country in New Hampshire, or one of your own choosing). (2) There are no notes or questions; it's just source material. That may not be a feature as far as everyone is concerned, but I know some teachers like it that way. (3) You can customize the book to your own liking. Just let me know, and I'm happy to send you the Word .doc files, and you can add to, delete from, and change around the content as much as you like. (4) You never have to worry about being blind-sided by new editions, because when I do release a new edition, the old editions will stay online, free, and just as printable and downloadable as the new versions.

My casebook's not for everyone. It's a bare-bones approach. I use it alongside a slim treatise (Understanding Torts by John L. Diamond, Lawrance C. Levine, and Stuart Madden) and a memoir (Four Trials by John Edwards). But if it's up your alley, it's free for the taking. And my archive of syllabi, old exams, handouts, and mindmaps is all on my website. Also, my original slideshow .ppt files are available to any instructor who asks.

Posted by Eric E. Johnson on May 5, 2011 at 10:36 AM in Books, Teaching Law, Torts | Permalink | Comments (3) | TrackBack

Tuesday, May 03, 2011

Favorite Tort Theory Article of the Year: John Gardner on Corrective Justice

It has been an interesting year in the theory of tort law.  Gregory Keating’s stuff is always good (here); Scott Hershkowitz cleverly used Harry Potter to demonstrate how tort theory is often blind to procedural dimensions of tort law (here); Goldberg & Zipursky offered a comprehensive account of their conception of tort law as a law of private wrongs (here); Joseph Raz wrote brilliantly on responsibility and the negligence standard (here, here); Avihay Dorfman has defended an account of the morality of tort law based on the value of equal-respect (here, here), and there have been others.  Yet, my favorite (with Raz of course a close second) is John Gardner’s recent article on corrective justice (here).  

Gardner – successor to Ronald Dworkin as the Chair of Jurisprudence at Oxford – is often primarily thought of as a theorist of criminal law, which may have the unfortunate effect of distracting readers from his equally impressive work in other fields such as torts (e.g., here, here, here, here).  Not that I always agree with Gardner.  In fact, I devoted an article to exploring and rejecting some of his ideas on the nature of the negligence standard (here). Yet, I believe that Gardner is among the handful of the world’s very best legal philosophers.  His work is always carefully reasoned and highly illuminating.  You may say I’m a fan.

In his most recent piece – "What is Tort Law For? Part 1: The Place of Corrective Justice" – Gardner sets out to clarify the concept of corrective justice and its role in the law of torts.  A corrective justice approach to tort law appears, at least on its face, overly focused on tort law’s remedial aspects.  Remedial duties are second-order duties.  They are predicated on a violation of first-order duties, which in tort law are embodied in duties such as the duty of care.  Any account of tort law predicated on corrective justice must explain how corrective justice – a concept focused on the remedial – can account for the primary duties of tort law.  Jules Coleman, for example, tackles this problem in his The Practice of Principle (lecture III).

Gardner’s article is rich.  His explanation of the logic of corrective justice and its relation to primary obligations is particularly interesting. Where an obligation is violated one may often still conform to the reasons for that obligation.  Given that it is no longer possible to adhere to the original obligation, the persisting reasons for that obligation call for the next-best satisfaction.  Put differently, the rationale for a violated primary obligation (e.g. a duty of care) is also a rationale for a secondary obligation which is an obligation to do the next-best thing (e.g., compensation).  Tort law’s remedial obligations of corrective justice are rational echoes of tort law’s violated primary obligations.  Realizing this clarifies the normative connection between duty and remedy in tort law: the reasons why one must pay for the wrongful harms one causes are the same reasons why one must not cause such harms in the first place.  Gardner calls this the “continuity thesis.”  Plaintiffs’ remedial acts are (partial) conformity with those original reasons they failed to conform to in violating the primary obligations of tort law.  In tort law the reason not to violate the primary obligation is that even perfect performance of a secondary remedial obligation does not ever fully satisfy the reasons for the primary obligation.  There is always a rational remainder of nonconformity.  This remainder manifests itself in reasons for a variety of reactive emotions such as regret or shame for violating one’s primary obligation. 

Gardner is currently working on a sequel project titled: "What is Tort Law For? Part 2: The Place of Distributive Justice."  I cannot wait.                       

Posted by Ori Herstein on May 3, 2011 at 01:20 PM in Legal Theory, Torts | Permalink | Comments (5) | TrackBack

Wednesday, March 02, 2011

Snyder v. Phelps Decision Alert

Today the U.S. Supreme Court held 8-1 in Snyder v. Phelps that the state could not impose liability for intentional infliction of emotional distress on Phelps and the Westboro Baptist Church for picketing the funeral of deceased soldier Matthew Snyder, at least where "Westboro addressed matters of public import on public property in a peaceful manner, in full compliance with the guidance of local officials."

At first glance: The decision contains an important discussion of how to distinguish speech of public concern from speech of purely private concern.  The decision defines public concern broadly to encompass the Westboro Baptists Church's commentary on the "political and moral conduct of the United States and its citizens. . . ."  Procedurally, the Court clarifies that courts must "make an independent examination of the whole record" to evaluate whether the speech is of public concern. (7-8). Alito's dissent stresses several times that the plaintiff in the case was a private figure "brutalize[d]" by speech on a matter of private concern.

Posted by Lyrissa Lidsky on March 2, 2011 at 01:26 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (9) | TrackBack

Saturday, February 05, 2011

A Libel Proof Defendant? Courtney Love's Twitter Defamation

The Twitter defamation suit against celebrity Courtney Love , ostensibly the first of its kind, is set for trial next Wednesday (February 9, 2011) in California.  The suit arose after Love got into a tangle with the Boudoir Queen, a fashion designer also known as  Dawn Simorangkir.  Simorangkir accepted some of Love's clothing to "transform" into designer dresses, but Love was unsatisfied with the end product and refused to pay. To add insult to injury, Love posted allegedly defamatory statements about the Boudoir Queen on Twitter, MySpace, and Etsy.com.

Love tweeted, inartfully, that “ police are morethan ecstatic to pick [Simorangkir] up she has a history of dealing cocaine, lost all custody of her child, assault and burglary.” [The errors are Love's.] (Complaint ¶ 24(b)). Love also wrote, “so goodbye asswipe nasty lying hosebag thief,” as well as “… my clothes my WARDROBE! oi vey don’t fuck with my wradrobe or you willend up in a circle of sorched earth hunted til your dead.” Love made similar statements on feedback forums on MySpace and Etsy.com. At the time Love's tweet went online, she had an estimated 40,000 Twitter followers.

In response to Love’s “feedback,” the Boudoir Queen sued for libel. Love’s attorneys responded to the complaint by claiming that Love was merely warning others about “Simorangkir’s pattern of criminal and bad faith conduct” (Defendant Love's Special Motion to Strike). Love’s attorneys argued that Love acted in the “public interest” by using social media to warn others of her experiences. The California court, however, denied Love's motion to strike and found that the dispute involved not an issue of public interest but rather “a discrete private dispute between Love and Simorangkir.” The court also rejected the argument that the defamatory statements concerned matters of public interest simply because Love is a celebrity, since “under that theory, no celebrity could ever be found liable for defamation."

Besides being the first Twitter-based defamation suit to reach trial, Love’s suit poses some intriguing legal issues. As a result of our society’s commitment to free speech, a speaker cannot be held liable for expressing her opinion. Opinion, however, is a legal term of art, and refers to statements that are unverifiable or cannot be interpreted as stating actual facts about the plaintiff. Hyperbole, for example, is not actionable as defamation. In a 140-character tweet, however, the speaker has little chance to clarify her meaning and provide relevant context that might establish her tweet as hyperbole.  In Love’s case, she is well known for her “over the top” behavior in general, perhaps indicating her followers on Twitter might expect the kind of hyperbole that is clearly present in her tweets. Of course there is no such thing legally as a libel-proof defendant (nor should there be), but this case does make one question whether any reasonable person could possibly give credence to anything she said, factual sounding or not.  Love provided a series of tweets that may have alerted some audience members to the context of her dispute with the Boudoir Queen, but it is an open question whether the tweets should be read together to establish the “context” supporting her statement that the Boudoir Queen was a “lying hosebag thief.” Certainly Love’s accusations of criminality seem to indicate that she has undisclosed (and potentially false) factual information, which certainly makes it harder (or likely impossible) for her to shield her statements under the mantle of opinion. Moreover, there is an argument that a defamatory statement in a single tweet (not the issue here, admittedly) should be treated like defamation in a headline that is refuted by an accompanying article not likely to be seen by most reasonable readers of the headline.  Regardless of what happens if the Love case actually goes to trial on Wednesday, the saga is instructive about the perils of assuming that one can vent one’s frustrations about another in social media without legal repercussions.

Posted by Lyrissa Lidsky on February 5, 2011 at 06:27 PM in First Amendment, Lyrissa Lidsky, Torts, Web/Tech | Permalink | Comments (6) | TrackBack

Monday, January 31, 2011

A Small-Town, Social-Media Parable

    My co-author Daniel Friedel and I  just finished a book chapter for a book called Social Media: Usage and Impact (Hana Noor Al-Deen & John Allen Hendricks, eds., Lexington Books, 2011). In the course of writing the chapter, I came across Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (Cal. App. 2009), a case I had somehow missed when it came out. The Moreno case is a cautionary tale about the dangers of engaging in undue self-revelation online, but that is not the only reason I find it fascinating.  I find it fascinating because I grew up in a small, remote town, and I am acutely aware of the social dynamics that underlie the case.

    Here are the facts. While Cynthia Moreno was a college student at Berkeley, she visited her hometown of Coalinga, California. Moreno subsequently published on her MySpace page a very negative “Ode to Coalinga,” in which she stated, among other things, that “the older I get, the more I reliaze that I despise Coalinga.” (1128) The principal of Coalinga High School obtained the Ode and forwarded it to a local reporter. After publication of the Ode in the local newspaper, Cynthia Moreno’s family received death threats, and a shot was fired at their home. They were forced to move away from Coalinga, abandoning a 20-year-old business. (1129). They sued the principal and the local newspaper for invasion of privacy and intentional infliction of emotional distress. The trial court dismissed the case against the newspaper under a California's antil-slapp  statute. The Moreno family did not appeal the ruling regarding the newspaper, but they did appeal the trial court’s dismissal of their claims against the principal for invasion of privacy and for intentional infliction of emotional distress. (1129).

    With regard to the privacy claim, the California appellate court held that the revelations concerning the Ode simply were not "private" once Cynthia Moreno posted them on MySpace, “a hugely popular internet site.” (1130). The Court found, in essence, that Cynthia had waived any reasonable expectation of privacy through her "affirmative act." (1130). It was immaterial to the court that few viewers actually accessed Moreno’s MySpace page. By posting it, she opened her thoughts to “the public at large,” and “[h]er potential audience was vast” regardless of the size of the actual one. As Cynthia learned to her sorrow, there is no privacy invasion when information shared with a seemingly “friendly” audience is repeated to a hostile one. (1130). [Query, however, whether this could lead to a false light claim in the right circumstances.]  Although the court dismissed Cynthia's privacy claim, the court held open the possibility that a claim for intentional infliction of emotional distress could succeed. (1128). 

    The Moreno case sends a mixed message about legitimate use of information shared in "public" social media. On one hand, the information is not private. On the other, republication can still lead to liability if done for the purpose of inflicting emotional distress on another in a manner that jurors might subsequently deem “outrageous.”  At first blush and maybe at  second, too, this latter holding regarding intentional infliction (the court left its reasoning unpublished) seems inadequately protective of speech.  After all, the principal was merely republishing lawfully obtained truthful and non-private information, arguably about a matter of local significance.  The principal had no "special relationship" (protective, custodial, etc.) with Cynthia Moreno that might have imposed on him a duty to give special regard to her interests or emotional well-being.  It seems from the facts, however,that Cynthia's younger (minor) sister might have been attending the high school of  which the defendant was principal, which perhaps could make his actions more "outrageous." Moreover,  how much solicitude should be given to a defendant such as the principal if his intent in publishing the statement was to ensure the ostracization of Cynthia and her family, or even if he acted with reckless disregard that those consequence would result? Of course, the statement need not have been published in a newspaper in order to produce a similar result.  In a town of fewer than 20,000 residents, the gossip mill very well might have ensured that the information got to those most likely to be interested in it. Moreover, if the principal could foresee harm to Cynthia through the gossip mill, arguably so could Cynthia (even if the scope and exact manner in which those harms would occur were unforeseeable). After all, she did grow up there and should have known, even at 18 years old or especially at 18 years old, how vicious the repercussions might be if her Ode got out.  I feel great empathy for Cynthia, but I do worry about the free speech implications of giving a tort remedy based on the repetition of lawfully obtained, truthful, non-private information, even when done with bad motives.

Posted by Lyrissa Lidsky on January 31, 2011 at 12:06 PM in First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech | Permalink | Comments (0) | TrackBack

Saturday, January 22, 2011

Awesome Civil Recourse Conference at FSU

My apologies for the brief delay in getting notice of this exciting conference up to you all, but FSU is hosting yet another all-star conference this spring, this one organized by the FSU Law Review and my colleague, the inimitable Curtis Bridgeman. The information appears below and after the jump. I plan on being there and may have a small role in trying to keep Jason Solomon in line during his panel.

Come to the 'Hassee in February.  It'll likely be warmer then than wherever you're reading this now, and more importantly,  this will be a stellar set of conversations, all slated to appear in the FSU law review.

Symposium on Civil Recourse Theory

February 11-12 , 2011
at the Florida State University College of Law

Tallahassee, Florida


Presented by the Florida State University Law Review.

Civil recourse theory is an account of private law (property, contract and especially
tort) according to which the primary purpose of private law is to empower victims to
confront publicly those who have wronged them and enlist the state’s help in addressing those wrongs. This event brings together some of the world’s top scholars in private law to discuss this emerging area of legal philosophy.

Click here to register for the symposium. 


AGENDA

 

Friday, February 11

9-9:10 a.m. – Welcome
Dean Don Weidner, Florida State University College of Law

9:10-10:40 a.m. – Civil Recourse vs. Corrective Justice
Jules Coleman, Yale Law School
Arthur Ripstein, University of Toronto Faculty of Law
Ernest Weinrib, University of Toronto Faculty of Law

11 a.m.-12:30 p.m. – Political Theory of Recourse
John Goldberg, Harvard Law School
Heidi Hurd, University of Illinois College of Law
Jason Solomon, William & Mary Law School

12:30-1:50 p.m. – Lunch

1:50-3:10 p.m. – Contracts and Civil Recourse
Jody Kraus, University of Virginia School of Law
Andrew Gold, DePaul University College of Law
Curtis Bridgeman, Florida State University College of Law

3:30-5 p.m. – Relational Duties
Ben Zipursky, Fordham University School of Law
Stephen and Julian Darwall, Yale University Law School and New York University
Nate Oman, William & Mary Law School

7 p.m. – Dinner

Saturday, February 12

9-10:30 a.m. – Recourse, Revenge, Redress, Remedy
Emily Sherwin, Cornell University Law School
Tony Sebok, Cardozo School of Law
Gabe Mendlow, Yale University Law School

11 a.m.-12:30 p.m. – Recourse and Justice
John Gardner, Oxford University
Stephen Perry, University of Pennsylvania Law School
Scott Hershovitz, University of Michigan Law School

An informal lunch will be provided after the last panel.

 

Posted by Dan Markel on January 22, 2011 at 09:05 PM in Legal Theory, Life of Law Schools, Torts | Permalink | Comments (0) | TrackBack

Saturday, December 25, 2010

Defamed Law Profs Win $5.2 million Against West Publishing

Here's a report of a  defamation win by two law profs against West Publishing that seems,  well, a little excessive based on the reported facts.  According to the report, the defamation claim was based on false attribution of authorship of a poorly done pocket part.  I guess the profs didn't buy the argument than any publicity is good publicity.  I'm dying to know more, because there must have been more for the verdict to have been this large.  The plaintiffs were David Rudovsky and Leonard Sosnov. 

Posted by Lyrissa Lidsky on December 25, 2010 at 09:00 PM in Criminal Law, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

Thursday, October 28, 2010

4-year-old capable of negligence?

For you Torts professors out there, here's a case to share with your students:  http://www.nytimes.com/2010/10/29/nyregion/29young.html?_r=1&hp

Posted by Lyrissa Lidsky on October 28, 2010 at 09:26 PM in Torts | Permalink | Comments (2) | TrackBack

Thursday, September 23, 2010

The Centenarian Who Wasn’t, NASA v. Nelson, and the Constitutional Right to Information Privacy

   

Approximately thirty years ago, Sogen Kato became involved in an argument with his relatives, and then retreated into his bedroom to sleep.  He never came out.  Evidently none of the family members who shared his apartment went in to disturb him.  This past July, after Kato ostensibly became Tokyo’s oldest living man, Japanese government officials sought to contact him to congratulate him on his longevity.  After being given the run-around by his nervous relatives as to his availability, government officials eventually showed up at Kato’s apartment and discovered his mummified remains in the bedroom.  His reprehensible relatives, who collected more than $100,000 in pension benefits in Kato’s name during his “lifetime,” are in very hot water. 

The constitutional right to information privacy is the law’s equivalent of Sogen Kato.  It has been thirty-three years since the Supreme Court hinted that such a right exists under the Constitution, and the Court has been as silent as Kato in the interim about this subject.  The lower courts have had much more to say, with most circuit courts holding definitively that the Constitution protects a right to informational privacy and developing multi-part tests to determine when it has been infringed.  The D.C. Circuit has expressed skepticism about whether the constitutional right lives on, and the Sixth Circuit has held that until the Supreme Court says otherwise, the constitutional right to information privacy is dead.  On October 5, the U.S. Supreme Court is going to be opening the bedroom door, and considering oral argument in its first constitutional right to information privacy case in a generation, NASA v. Nelson.

In Nelson the Court will take up the issue of whether the constitutional right to information privacy prohibits the Jet Propulsion Laboratories (JPL) from asking open-ended questions about whether longtime JPL employees have done anything that might reflect negatively on their ability to continue performing their jobs.  My view of Nelson, which I develop at much greater length in Reunifying Privacy Law (forthcoming in the California Law Review), is that the Court ought to hold in Nelson that there is no such thing as a constitutional right to information privacy.  My primary basis for concluding that the constitutional right ought to simply go away is that the constitutional right to information privacy is largely redundant with privacy tort law.  Because the Solicitor General decided not to argue that the Supreme Court should follow the Sixth Circuit’s approach, the briefs in Nelson have largely ignored the question of what happens if the Court holds that this constitutional right should disappear.  But it would be very fruitful for the Justices to ask counsel hard questions along these lines next month.  The answer in Nelson itself appears to be that abolition of the constitutional claim would leave the plaintiffs with robust remedies under tort law.

Let us begin with some case background on Nelson.  The plaintiffs represent a class of JPL scientists, engineers, and administrators who are classified by NASA as “low risk” employees because their jobs “do not involve policymaking, major program responsibility, public safety, duties demanding a significant degree of public trust, or access to financial records with significant risk of causing damage or realizing personal gain.”  Under new federal regulations, even longtime JPL employees were to be subjected to background checks in which government agents would ask employees, their references, their prior employers, and their landlords questions about whether they had used drugs or undergone treatment or counseling for drug addiction in the last year; whether they had used abusive language, been involved in personality conflicts, developed mental, emotional, psychological, or psychiatric issues, or had engaged in sex acts that might subject them to blackmail.  In addition, third parties would be asked whether they knew anything, good or bad, about the JPL employees that would be relevant to their ability to work for the government.

The district court denied the plaintiff’s request for an injunction, but the Ninth Circuit reversed with respect to the government’s inquiries about drug treatment (as opposed to drug use) and open-ended “investigation[s] of the most private aspects of class members’ lives.”  While the court held that the government’s inquiries into its employees’ backgrounds were legitimate, it applied intermediate scrutiny and held that the government’s investigations were not narrowly tailored to further these legitimate interests.

It turns out that the harms alleged by the plaintiffs in Nelson were remediable under tort law.  California, where the JPL is located, is somewhat unique in that privacy tort law has largely merged with state constitutional privacy law.  The California Constitution has a privacy clause that lacks a state action requirement.  If you look at the state constitutional cases, you see results largely consistent with the Ninth Circuit’s ruling in Nelson.  For example, in 1986 the California Supreme Court held in Long Beach City Employees Association v. City of Long Beach that requiring public employees to submit to polygraph testing in order to investigate a specific crime violated the employees’ privacy rights under the state constitution.  Similarly, another 1991 intermediate appellate court case, Soroka v. Dayton Hudson Corporation, held that Target’s use of a psychological profiling device that required job applicants to answer questions about their religious beliefs and sexual orientation, violated the applicants’ rights under the state Constitution.  Such acts, which violate the state constitution, almost certainly qualify as tortious intrusions upon seclusion under California tort law as well.  A suit by Nelson against JPL thus would be able to proceed via the Federal Torts Claims Act, which waives sovereign immunity in cases involving tortious invasions of privacy.  So held the Ninth Circuit in a 2000 case called Nurse v. United States. 

If a winning tort claim exists, is there any reason why the law should recognize a redundant constitutional claim as well?  Perhaps.  We can imagine circumstances where having overlapping causes of action are desirable.  If a police officer clubs a political dissident to prevent him from making an unpopular speech, it is a tort as well as a First Amendment violation.  But most First Amendment violations will not be torts.  By contrast, for reasons I explore here virtually all infringements of the constitutional right to information privacy will be either tortious intrusions upon seclusion or tortious public disclosures of private facts.  As it happens, the common law courts have developed a sensible framework for deciding whether an invasion of privacy amounts to a tort.  The applicable frameworks for deciding whether the government’s conduct violates the constitutional right to information privacy are by no means sensible.  Courts commonly apply a seven-factor test, the overlap of the seven factors results in inevitable double-counting, and the results that emerge under the framework are very difficult to predict ex ante. 

To be sure, the constitutional right to information privacy is not completely redundant.  There are some jurisdictions outside California where suing the state for tortious invasions of privacy is impossible because of sovereign immunity or the weakness of state tort law protections.  But the desire to fill these occasional gaps in the law, or an interest in helping plaintiffs recover attorney’s fees, hardly justifies the development of a convoluted body of constitutional law.  Rather, the jurisdictions at issue should simply consider whether they ought to change their state tort claims acts and substantive tort provisions to deal with serious injuries that might otherwise go unremedied. 

 

For more reading on NASA v. Nelson, see Dan Solove’s posts here (arguing that the Court should recognize a constitutional right to information privacy), and here (addressing the merits), as well as Eugene Volokh’s discussion of the implications of the Ninth Circuit’s holding here.

Cross Posted at the University of Chicago Law School Blog

Posted by Lior Strahilevitz on September 23, 2010 at 11:33 AM in Constitutional thoughts, Information and Technology, Torts | Permalink | Comments (4) | TrackBack

Tuesday, September 14, 2010

Michael Bloomberg, Adventure Outdoors, Bob Barr, and Libel

Former Georgia Congressman Bob Barr is representing a gun dealer suing New York City Mayor Michael Bloomberg for libel.  The gun dealer, Adventure Outdoors, was named in a public nuisance suit brought by the City of New York against a number of dealers to stop "straw-person sales."   At a news conference concerning the suit, Mayor Bloomberg  called the dealers targeted in the suit a “group of bad apples who routinely ignore federal regulations” and stated that they had “New Yorkers’ blood on their hands.”  Barr sued for libel on behalf of Adventure Outdoors, and Bloomberg's lawyer Peter Canfield invoked Georgia's Anti-Slapp law.  The law requires, among other things, that a libel plaintiff file a "verification" that his claim is well-grounded or filed in good faith.  Barr refused to file the verification, and the trial judge dismissed his claim.  Barr then appealed to the Georgia Court of Appeals, where, according to a newspaper account, he continued to make the fairly ridiculous argument that  Georgia's anti-SLAPP law did not apply because the defendant's speech was defamatory.  This argument is ridiculous because the anti-SLAPP law is designed to prevent plaintiffs from using frivolous libel claims to chill free speech; if all it takes to get around the anti-SLAPP law is an allegation of libel, then it really wouldn't be of much use, now would it?   Barr also made the more plausible argument that the anti-SLAPP statute did not apply to Bloomberg because he isn't a Georgia citizen.    The story is in the Daily Business Review.

Posted by Lyrissa Lidsky on September 14, 2010 at 04:39 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (1) | TrackBack

Thursday, August 26, 2010

Free, Downloadable Casebook for Torts

Cover of Torts Compendium, Volume One This week I posted Volume One of a freely downloadable casebook for torts. After using three different casebooks over the past three years (I like changing things up), I decided to create my own for this year. It's available as a pdf through SSRN.

Not only should all instructors and students feel free to download this casebook and use it for free, but if any instructor out there would like to customize it, add to it, delete from it, etc., let me know, and I will be happy to give you the original document to work from. So, in an informal sense, it's open source. 

This casebook is extremely basic. There are no notes, no questions, no problems, and no exercises. Volume One only has cases, plus one statute. The value of the work is solely in terms of the editing. With no bells and whistles, it's not for everyone. But if you tend to use a casebook only for the cases, then mine might be worth checking out. 

At our school, torts is a two-semester sequence. So I've divided the casebook into two chunks, with the first volume corresponding to what I will teach in the first semester, which is negligence and liability relating to health care. I plan to complete a second volume for Spring 2011, which I will also make freely downloadable. Volume Two will include intentional torts, strict liability, economic torts, dignitary torts and a few other subjects.

I only have one request if you do use my casebook in your class: Please send me a note to let me know. I would be gratified to know that the work has proved useful for another instructor. 

A few notes:

I was inspired in part by Tom Field's downloadable Fundamentals of Intellectual Property: Cases & Materials, which I use in my survey class on intellectual property. Wonderful text.

The casebooks I used in the past three years were all very good. I should especially mention the book by John C. Goldberg, Anthony J. Sebok, and Benjamin C. Zipursky from Aspen Publishers, which uncovered some especially good recent-era cases that I used in my own compilation. If you are looking for a full-service torts casebook, Goldberg-Sebok-Zipursky is excellent.

I also should give a shout out to James Grimmelmann, who introduced me to one of the cases I used, Boyd v. Racine Currency Exchange, by way of nominating it in response to my call on PrawfsBlawg for the most screwed victims in caselaw history.

Posted by Eric E. Johnson on August 26, 2010 at 03:09 PM in Teaching Law, Torts | Permalink | Comments (1) | TrackBack

Friday, August 20, 2010

First Day of Torts

My first day of Torts is on Monday, and despite the fact that I'm teaching it for my fifteenth or sixteenth time, I'm still anxious about setting the right tone and pitching the material at the right level for the new 1Ls.  I try to cover a variety of topics at some point in the first week, including what a tort is, what tort law is supposed to be for, alternatives to the tort system, what common law is, the various levels of courts in the American system, stare decisis and the hierarchy of authority, the limits of studying appellate decisions, what it means when you say "jurisdictions vary" and why there is no unified law of torts for the entire United States, how to tell if an authority is binding or merely persuasive, the "broad brush" differences between torts and crimes and between torts and contracts, and little about the historical development of tort law.  I also discuss, of course, trial court procedure, the importance of identifying the procedural posture of the case, what "elements" are and how to identify them, and what Restatements are.  That's a lot to try to do in the first few days, isn't it?  I don't assume that the students will master all of these topics.  Instead, I try give them the basic knowledge they need to read a case and to introduce themes and concepts that I'll refer to throughout the course.  One of the main ideas I try to introduce is that there are types of arguments that are distinctively recognizable as "legal," and throughout the course, I try to teach students to recognize and reproduce those arguments.  The article that most influenced the way I teach Torts was James Boyle's Anatomy of a Torts Class.  In the past I tried assigning it at the beginning of the semester, but I've found the students really aren't ready for it then.  Incidentally, I love the eagerness of 1Ls, even though 1Ls are much more "high-maintenance" than 2Ls and 3Ls.  My own 1L experience was one of the most intellectually invigorating of my life, and I always hope I can "pay it forward" by making the 1L experience equally invigorating for my students.   

Posted by Lyrissa Lidsky on August 20, 2010 at 10:50 PM in Lyrissa Lidsky, Teaching Law, Torts | Permalink | Comments (6) | TrackBack

Wednesday, July 28, 2010

The Huge, Obvious Problem with the Law

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it's not there. It's so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

Everglades
A mighty swamp is our law.
(Image: Nat'l Park Service)

I know - it's not news. But that's the rub. The shadow cast by this cloud is so vast that our eyes adjust to the darkness. Several aspects of the Big Problem are shocking to 1Ls and stub-year associates. But eventually, we all become desensitized. Nonetheless, the legal profession ought to take a hard look at the ugliness. If we cared to do something about it, I think we could.

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

Why is this so? The basic features of our courts, our procedural law, and our means of recording and organizing substantive law were designed in an era of quill and parchment. And the biggest changes since then arose in an era of typewriters - before there were photocopiers, even. Since that time, an explosion in population, technology, and wealth has overwhelmed the law's operating system. It's like trying to run new, bulky software on a really old computer. It's slow as heck.

To appreciate the absurdity of the burden we've imposed upon ourselves, it's helpful to get some context. Let's compare civil litigation to health care. A medical problem costs nearly the same amount to treat for a rich person as it does for a poor person. Sure, there are always more tests you can run, wallet willing. But in health care, the key variable is the disease.

That's not true at all for civil litigation. The key variable in a lawsuit is the amount of money at stake. The exact same ambiguous contractual language could cost mere hundreds of dollars to litigate or well into the tens of millions. If you think about it, that's crazy. The cost of a civil dispute scales directly with the dollar amount on the line. That's why plaintiffs' lawyers can sensibly charge straight percentages of a contingent recovery. The mathematical relation is bankably certain.

Sadly, to the extent anyone has tried a real game-changer here, it has been binding arbitration. Instead of trying to fix our courts, whole sectors of industry are just doing without. And that turns out to be very undesirable for a lot of reasons - at least in my opinion, and I know many agree. With arbitration, particularly when it comes to consumers, convenience is often obtained at the price of fairness.

For all the codes and rules and hortatory language of “professional responsibility,” our profession ought to take responsibility for the law as a whole - and the mighty swamp we've made of it.

Posted by Eric E. Johnson on July 28, 2010 at 06:18 PM in Civil Procedure, Judicial Process, Torts | Permalink | Comments (7) | TrackBack

Thursday, July 15, 2010

Amicus Brief by First Amendment Professors in Snyder v. Phelps

Christina Wells of the University of Missouri Law School has put together a group of law professors who teach and write on the First Amendment to file an amicus brief in support of protecting the offensive speech at issue in Snyder v. Phelps.  I have joined Chris Wells on the brief, as have Alan Chen, Heidi Kitrosser, Ronald Krotoszynski, Jr.,  and Timothy Zick. Charles F. Smith of Skadden, Arps, Slate, Meagher & Flom is counsel of record, along with Slone Isselhard and Jessica Frogge.

The brief is available here at  here and, and it should be available on the ABA site at some point today.  The brief emphasizes that the protesters involved in the case were complying with all applicable laws and with official directives to stay several hundred feet away from the funeral of fallen Marine Matthew Snyder.   In fact, Mr. Snyder, the father of the deceased, did not see the content of the Phelps' signs until he viewed news coverage of the event and later went to the Phelps' website.  Thus, any disruption of Snyder's mourning, which formed the basis of his IIED and invasion of privacy claims, was based solely on the emotional impact (i.e., the offensiveness) of the Phelps' constitutionally protected speech.

In the brief, we argue that the offensive speech at issue in the case falls squarely within the bounds of First Amendment protected speech.  First, the Supreme Court has long protected offensive speech because it contributes to discourse on issues of public interest and because efforts to censor it often result from antipathy towards the speaker's message.  Second, the Court has never found a captive audience in a public forum based purely on the content of speech.  Abhorrence for the expression in the Snyder case does not justify creating a new dignity-based privacy interest that would allow censorship of unwanted or offensive speech.  Third, the First Amendment does not allow punishment of speech solely because of its emotional impact on the listener.  For this reason, the Court typically requires external indicia or harm before finding speech unprotected.  The Court should not permit evasion of these objective requirements by allowing tort liability under theories of invasion of privacy  or intentional infliction of emotional distress in the Snyder case.  Permitting tort liability for offensive speech would chill public discourse by allowing massive damage awards based on subjective criteria.  Categorizing the peaceful funeral protest in Snyder as unprotected speech contradicts the Court's existing jurisprudence and undermines the very purpose of the First Amendment. 

As you may know, Chris Wells also has written the definitive article on funeral protests.

 

Posted by Lyrissa Lidsky on July 15, 2010 at 06:07 AM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (2) | TrackBack

Thursday, July 01, 2010

Oped on Taxing Punitive Damages

Happy Canada Day!

Well, I guess now that summer's indisputably here, it's the season for prawfs to start writing more opeds.

As you saw the last few days, Ethan and Eduardo recently penned something for a broader audience. And Ethan also deserves a shout-out for a SCOTUS citation to his criminal juries piece. See McDonald v. Chicago, slip op. 34 n. 28. 

Anyway, here's a link to a short piece in today's NYT by Gregg Polsky, my patient and wise co-author of our forthcoming Taxing Punitive Damages article, and me. I'll post the text below the jump.

Damages Control

WHEN corporations like Exxon, State Farm and Phillip Morris lose tort cases, juries occasionally award, in addition to compensation for the plaintiff’s injuries, extensive punitive damages.

But jurors are often unaware that companies are able to deduct those punitive damages in calculating their federal income taxes, saving them millions of dollars and undermining the original goal of the damages: to punish reprehensible corporate behavior.

BP might soon be added to the list of payers of punitive damages for its role in the Gulf oil spill. Perhaps with that in mind, the Senate recently approved a measure to repeal deductibility for punitive damages.

The measure is well intentioned. But because most cases are settled before they reach a jury, it won’t work. Fortunately, there’s a better approach.

When plaintiffs and defendants reach a settlement before a trial, which happens in most cases, they aren’t required to specify which parts of the settlement are punitive and which are compensatory; there is typically just one number. That allows defendants to disguise the amounts that they would have paid as punitive damages as additional compensatory damages.

And because the measure maintains the deductible status of compensatory damages, nearly all punitive damages will remain, as a practical matter, deductible. This easy circumvention surely explains the meager revenue projections from the measure: $315 million over 10 years.

While the Internal Revenue Service might try to dissect settlements and classify portions of them as punitive damages, to do so it needs help from both parties to the negotiation. The problem here is that plaintiffs have no incentive to characterize the settlement correctly. Indeed, in cases involving personal physical injury, plaintiffs are better off tax-wise by characterizing the settlement as entirely non-punitive because, while the punitive damages they receive are subject to tax, the compensatory damages are not.

Put a different way, the root of the problem is that jurors tend to believe that punitive damages are not deductible, even though they are. So why not have plaintiffs’ lawyers make jurors aware of the tax deductibility of punitive damages, and teach them how to adjust their awards to offset the deduction’s effect? While plaintiffs’ lawyers don’t do this now, there is no precedent or persuasive legal argument that prevents them from doing so.

Such “tax-aware” juries would probably award higher punitive damages to offset the fact that punitive damages were tax-deductible. But more important, the prospect of tax-aware jurors would also raise the amounts of settlements before trial — when, again, most cases are actually resolved. This is because the amount of a settlement depends on the amount that a jury is expected to award after a trial. If tax-aware juries became the norm, plaintiffs would push for higher settlements, and thus both settling and non-settling defendants would bear the correct amount of punishment. Under the Senate’s approach, in contrast, only the very few non-settling defendants would bear that punishment.

The tax-awareness approach is by no means perfect. It requires juries to determine yet another fact during punitive-damages proceedings, namely the defendant’s marginal tax rate. It also increases the sizes of recoveries to punitive-damage plaintiffs and their lawyers, which is either a good or a bad thing, depending on your perspective. Nevertheless, given the practical futility of the Senate measure, tax-awareness is a far better approach to solving the problem of under-punishment.

There is a good chance that the Senate measure will become law, if only because the public is exasperated by the BP fiasco and Congress desperately needs revenue, even a relatively small amount. But if it does, it will be yet another example of expedient politics trumping sound policy.

Gregg Polsky and Dan Markel are, respectively, law professors at the University of North Carolina at Chapel Hill and Florida State University.


Posted by Dan Markel on July 1, 2010 at 12:30 PM in Article Spotlight, Current Affairs, Dan Markel, Retributive Damages, Tax, Torts | Permalink | Comments (0) | TrackBack

Wednesday, June 23, 2010

Federal Law Should Require Online Availability of Instruction Manuals

Congratulations on your purchase of a new consumer product! IMPORTANT: RETAIN THIS INSTRUCTION MANUAL FOR FUTURE REFERENCE. 

Annoying, huh? 

Here is a proposal for a new federal law. It's pro-consumer, pro-safety, and pro-environment. The operative provision would be this:

All commercial manufacturers of consumer products that are sold with instructions, manuals or other such documentation shall permanently label such products with a URL web address where consumers may download copies of the documentation. The Federal Trade Commission shall have the authority to promulgate regulations under this Act and to bring enforcement actions.

This statute would be especially timely for me: I am moving offices. In the photo below, you can see just a small sample of the flotsam product documentation I've come across. Having consumers file and save instruction manuals is absurdly out of date. In fact, only the mythical hero consumer would file and retain a lifetime's worth product documentation. But thanks to the internet, there's a meaningful way to keep product documentation organized and readily available. 

Consumer_documentation The law I'm proposing would unclutter offices and homes. On an individual level, that would be a substantial convenience. But considered cumulatively over several years and millions of consumers, the economic benefit in productivity gained and time saved time would be significant —  more than enough to make a law worthwhile. Online availability would also save trees, reducing the need for the paper and cardboard used in filing, storing and sometimes copying the instructions.

It could also save lives. A recent baby car seat I bought includes a pocket within the seat-back for inserting and retaining the instruction manual. This is fantastic, since missing instructions can lead to a failure to properly install the car seat, which is a serious danger. Having documentation for all products available online would extend this kind of safety factor to tens of thousands of other products.

Posted by Eric E. Johnson on June 23, 2010 at 05:44 PM in Information and Technology, Torts | Permalink | Comments (13) | TrackBack

Thursday, June 17, 2010

The Senate has mucked things up--hopefully the House won't follow suit

(This post is by Prof. Gregg Polsky and me.) 

Yesterday, the Senate passed an amendment that would make punitive damages paid by businesses nondeductible for tax purposes.  The nondeductible rule is intended to pay for a 90 day extension of the home buyer's tax credit.  On the face of it, this seems like a great idea--after all, why should defendants get tax breaks for malicious or reckless wrongdoing?

But as we've recently argued in our forthcoming paper, Taxing Punitive Damages,  a rule of nondeductibility is the wrong approach. It would be easily circumvented by defendants through settlements that disguise punitive damages as additional compensatory damages. Indeed, easy circumvention is fully consistent with the measly revenue projections from the rule:  a mere $315 million over 10 years.  It would be far, far more effective, in our opinion, to allow plaintiffs to introduce tax evidence against the defendant in the punitive damages phase and encourage juries to "gross up" damage awards to offset the effect of deductibility.  As we explain, a number of other factors (including concerns for federalism and regulatory diversity) also push in favor of our proposed solution over a rule of nondeductibility.      

To be sure, a nondeductibility rule looks good superficially (especially at a time when people are foaming at the mouth for Obama and the feds to do *something*). And no question, the need for immediate projected revenue (no matter how pitifully small) is great.  So while we think there's a decent chance the Senate's proposal will go through, despite its significant real-world flaws, we will be trying to explain along the way why the better strategy in this case is to do nothing and let the states work this out on their own. If it passes, we'll be joining the Office of the Repealer for these limited purposes!  

P.S. The new draft on SSRN contains a response to Professor Geistfeld's interesting critique of our paper. 

Posted by Dan Markel on June 17, 2010 at 11:10 PM in Article Spotlight, Current Affairs, Dan Markel, Retributive Damages, Tax, Torts | Permalink | Comments (0) | TrackBack

Wednesday, June 09, 2010

Is Libel Dead? (Not So Fast.)

I recently cut twenty pages from the defamation chapter of my Mass Media Law casebook.  Maybe I should have cut more.  A story by John Koblin in The New York Observer reports that the number of libel cases against media defendants has dropped so dramatically that the Media Law Resource Center is going to report on them on a  bi-annual rather than an annual basis.  George Freeman, VP and assistant general counsel for the New York Times Company reports that there currently "are no active domestic libel suits" against any publications owned by the company.  In the past, he said, the norm was ten to fifteen libel cases per year.

The story in the Observer is titled "The End of Libel?," and it suggests a number of theories to explain the drop in the number of libel cases.  For example, there is a suggestion that plaintiffs are finally beginning to understand the legal obstacles that make recovery for libel unlikely.  There is a suggestion that there are fewer libel cases because there is less investigative journalism.   There is a suggestion that there are fewer libel cases because "the Web has allowed for quick corrections, heading lawsuits off before they are even filed."  There is even a suggestion that there is so much information out there that it makes any one negative statement less damaging.  Finally, there is a suggestion that media are more willing to "correct" a story upon receipt of an angry phone call.  The article concludes that regardless of the cause "when it comes to the old-fashioned libel case, lawyers and subjects might finally be calling it a day." 

Not so fast.  We shouldn't be too hasty in declaring "the end of  libel."  While plaintiffs may be bringing fewer suits against the mainstream media, I would like to see accurate statistics about whether there has been a reduction in the number of libel suits brought against what once would have been called "non-media" defendants, that is, defendants who aren't part of the institutional media.  I don't have empirical data to back up this assumption, but it certainly doesn't seem like these suits are on the decline.

Even for mainstream media, the threat of foreign libel suits seems to be growing as the threat of domestic suits declines.  Although the New York Times Company isn't facing any domestic libel suits currently, it is facing five active libel cases abroad.  Perhaps, then, sophisticated libel plaintiffs suing large media corporations are becoming libel tourists, bringing their suits in England or Germany or some other jurisdiction that has weaker legal protections for journalists than we do here in the U.S. [In this regard, it is worth noting that several U.S. states, including New York, Florida, and Illinois, have adopted legislation to protect U.S. citizens from "libel tourism."  New York's Libel Terrorism Protection Act, N.Y. CP.L.R. Sec. 5304 provides that foreign judgments will not be recognized if "rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law."  The Act also provides that  "defamation judgments obtained in a jurisdiction outside the United States" will not be recognized unless a New York court determines that the defamation law applied provides at least as much protection for free speech and press as would be accorded by New York courts.  Finally, the Act modifies another provision of New York law (CPLR Sec. 302) to give New York courts personal jurisdiction "over any person who obtains a judgment in a defamation proceeding outside the United States against any person who is a resident of New York or is a person or entity amenable to jurisdiction in New York who has assets in New York or may have to take actions in New York to comply with the judgment."  Florida's new law is identical to New York's.  See Fla. Stat. Sec. 55.605 (2) (h) (2009), and Illinois' is similar.  735 Ill. Comp. Stat. 5/12-621(b)(7) (2009).]

And thanks to Cory Andrews for tipping me off to the Observer story!

Posted by Lyrissa Lidsky on June 9, 2010 at 08:04 PM in First Amendment, Torts | Permalink | Comments (1) | TrackBack

Friday, May 21, 2010

Reasonableness and Community

A few years ago, while looking for cases to recast as hypotheticals for my Torts students, I came across an interesting example of juror confusion about the application of a reasonableness standard in People v. Calitina, 2002 WL 31820336 (Cal.App. 1 Dist. Dec 17, 2002) (NO. A093378).  Calitina is a criminal case where the defendant, Calitina, was out cruising with friends and got into a confrontation with people in another car.  There was a bit of a chase and Calitina shot at the other car apparently believing that it was occupied by armed men who had previously threatened him.  It turned out that the car was occupied by unarmed females, one of whom Calitina shot in the shoulder.  Calitina argued self-defense.

The full accounting of the jury deliberations is complicated, but in short Juror No. 9 had difficulty interpreting the jury instructions about the difference between reasonable and unreasonable self-defense.  The jury sent out a written question asking for the definition of a reasonable person and Juror No. 9 was ultimately brought into court and asked to describe her concerns:

Juror No. 9 asked for a definition of a reasonable person. The trial court recalled that she had asked how the law would apply as it relates to cultures and communities-it asked her to explain what she meant by this question. She asked if a reasonable person was one who reflected all the cultures of the country, if it meant what she would do, or if she should consider what people generally would consider reasonable in a specific situation. She found it difficult to determine what she, as a reasonable person, would do in a particular situation. She asked if she would be innocent if she did something that she thought was reasonable. She also asked if someone else would be guilty if they did something that appeared to them to be reasonable but would not be reasonable to her. She was uncertain what she might have done in the situation before the defendants-perhaps, she might have done the same thing that was done in this case, she told the trial court.

Juror No. 9 said that the jury had engaged in “a lot of discussing” on this issue and the others told her to “follow the law.” She told the trial court that she was trying to follow the law, but she was not certain what the law is. . . . She again requested a definition of what constituted a reasonable person. . . .

Juror No. 9 denied that her philosophy prevented her from following the law. She admitted having difficulty interpreting a particular phrase of the law to her satisfaction. The prosecutor asked her whether she would be prevented from continuing deliberations if the trial court could not provide her with more information. She replied that the question was not one of the charges in the case. Having thought about the underlying issue, she told the trial court that it was “almost as though [she had] to make [her] own interpretation of those words.” She thought that the standard to be applied should be one that reflected all communities, not just hers. Juror No. 9 stated that she was “not really sure” because it was a tough issue to resolve.

The court also questioned other jurors about the state of deliberations: 

Juror No. 7 opined that Juror No. 9's personal experiences were getting in the way of her ability to make a decision in the case. Juror No. 7 reported that Juror No. 9 said she was unsure what went on in a defendant's culture and in his life to make him believe that his action was reasonable or not. Juror No. 7 believed that Juror No. 9 was unable to decide this issue because she thinks this reasoning is biased or prejudiced.

Ultimately, the trial judge removed Juror No. 9 and Calitina was convicted – his claim of self-defense failed.  The Court of Appeal then held that discharge and replacement of Juror No. 9 during deliberations did not deprive Calitina of due process and a fair trial. 

I’m curious to hear what others think about the questions that Juror No. 9 raised about how to assess whether conduct is reasonable.  Does Juror No. 9’s confusion go beyond the difference between an objective and subjective standard and touch on more difficult questions about how to understand the “community” for purposes of assessing the reasonableness of conduct? 

I come at this from the perspective of how Tort law defines the reasonable person standard.  In Tort, the reasonable person is required to evaluate interests in accordance with the valuation placed upon them by the community sentiment crystallized into law; the reasonable person standard encompasses the values of the community and an individual’s idiosyncratic values (based on upbringing, etc.) are irrelevant.  Juror No. 9’s questions can, however, be interpreted to ask a deeper question – which community defines the standard?  (Perhaps criminal law provides a different or clearer answer?)   It seems like Juror No. 9 sensed that her “community” was different from that of Calitina’s.  Perhaps in Calitina’s neighborhood, the described car chase could support a reasonably apparent need for self defense while in Juror No. 9’s neighborhood it would not.

The Restatement of Torts, in discussing the reasonable person standard, references at different points the “community in which . . . conduct occurs” and what the “reasonable man at that time and place would know.”  This suggests that the relevant neighborhood/community is Calitina’s.  Although, by definition, isn’t a juror (peer) deemed part of the same community as the litigants?  Or perhaps the location is simply a circumstance to be considered in assessing the conduct of a reasonable and prudent person “in like or similar circumstances”?

I welcome thoughts about Juror No. 9’s (and my own) musings.

Posted by Katrina Kuh on May 21, 2010 at 09:12 AM in Torts | Permalink | Comments (0) | TrackBack

Wednesday, May 19, 2010

The Fair Report Privilege in NJ: "Misappropriate" = "Steal"?

In Salzano v. North Jersey Media Group, 2010 WL 1849852 (May 11, 2010), the New Jersey Supreme Court addressed important issues regarding the scope and application of its fair report privilege.  First, the court held that defendants may receive the benefit of the privilege when repeating allegedly defamatory allegations taken from “initial pleadings,” such as a filed complaint in a civil case.  Second, the court held, albeit by an equally divided vote, that defendants’ reporting regarding a civil complaint filed in bankruptcy court was fair and accurate even though it described the complaint as alleging that the plaintiff had “stolen” funds from a bankrupt corporation when the complaint actually stated that the plaintiff had misappropriated funds.   The split on the second issue reflects a division amongst the judges on whether the dictionary definition of “misappropriate,” or its arguably less pejorative “street” definition, is the relevant benchmark for judging its rough equivalence with “steal.”

For those not familiar with the fair report privilege, some background is in order.  The fair report privilege provides vital protection against defamation suits for journalists reporting on government affairs.  The fair report privilege stems from common law or sometimes from statute, and it protects journalists or others who repeat “defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern.” Restatement (Second) of Torts Sec. 611.  However, the privilege is only available if “the report [of the official action or proceeding or meeting] is accurate and complete or a fair abridgement of the occurrence that is recounted.”  Id.      

Three rationales underpin the fair report privilege.   The narrowest rationale for the fair report privilege is the “agency” rationale.  Since any member of the public has a right to attend a public meeting or obtain access to “open” government documents, the press is privileged to repeat accurately information from these sources because it is acting as an “agent” for the public in doing so.  A second rationale is the “public supervision” rationale, which recognizes the checking function of the press in scrutinizing government conduct and providing the public information about what their government officials are doing.  A closely related but potentially broader rationale is the “public information” rationale, which posits that the press should not be held liable for informing the public about matters of public interest, because such information is essential to intelligent voting and the formation of enlightened public opinion. 

The scope of the privileges varies from jurisdiction to jurisdiction, depending in part on which rationale is applied.  For example, some jurisdictions permit a defendant to invoke the privilege when the defendant reports information obtained from a “leaked” government document, but some deny the privilege because the defendant cannot claim to be acting as an agent in reporting on a document to which the public had no access.  Likewise, some jurisdictions permit a defendant to invoke the privilege even if there is no attribution to the government source; some don’t, because the public cannot evaluate government performance if they do not know the source of the information.

In Salzano, the New Jersey Supreme Court concluded that all three rationales—agency, public information, and public supervision—supported application of the privilege to fair and accurate reports of initial pleadings in a civil case.  In New Jersey, civil complaints are “public documents to which the citizens . . . have free access.”  The court concluded, therefore, that the media must be protected when they act as surrogates for the public in reporting “on every aspect of the administration of justice,” including the filing of a complaint.  In reaching this conclusion, the court rejected the argument that extension of the privilege to reports on filed complaints would promote the filing of frivolous lawsuits designed solely to put defamatory falsehoods into circulation.  If such abuses occur, the court said, they can be remedied with sanctions on attorneys and parties as well as suits for malicious prosecution or malicious use of process.  The court expressed faith that citizens have a “sophisticated understanding of the court system and [are] capable of evaluating information gleaned from a complaint;” therefore, pleadings do not need to be “sanitized” or “filtered through a veracity lens” before publication.  Clearly one can question both the court’s faith in the sophistication of the citizenry and the efficacy of remedies against the filing of complaints filled with defamatory falsehoods.  Moreover, one can certainly question whether extending the privilege to cover filed pleadings upon which a government official has not yet acted furthers public scrutiny of the administration of justice.  Regardless, the extension of the fair report privilege to “initial pleadings” provides an important shield against defamation liability for anyone reporting on the court system and the Salzano decision places New Jersey in the modern trend toward giving the privilege broad scope. 

Equally important is the leeway the New Jersey Supreme Court gave the media defendants in evaluating the fairness and accuracy of their reports on the complaint filed by the bankruptcy trustee.  The complaint stated that plaintiff “unlawfully diverted, converted and misappropriated [the bankrupt corporation’s] funds” by using two checks from the corporation to purchase his residence and by using the corporation’s credit card for over $200,000 in personal expenses.  The defendants published a story about the allegations in the complaint under the headline “Man accused of stealing $ 500,000 for high living” and asserted in the body of the story that the bankruptcy trustee’s complaint accused plaintiff of stealing.  In evaluating whether the published stories involved “full, fair and accurate account of the official proceeding,” the court focused on whether the defamatory “sting” of the defendants’ reports was “essentially the same as that of the complaint.”  With regard to the language regarding plaintiff’s “stealing” of funds, the court noted that the headline had to be read in the context of the whole article, which clearly indicated that the allegations of the complaint had not yet been adjudicated.  The court then looked to the dictionary definitions of “misappropriation” and “steal” to reach the conclusion that “it is clear that the fair and natural meaning of the word ‘steal’ given by reasonable person of ordinary intelligence is ‘misappropriate.’”

What is fascinating about this conclusion is that the justices on the New Jersey Supreme Court were equally divided on the question whether an allegation in a civil case that the “white-collar” plaintiff “misappropriated” funds had as much of a defamatory “sting” as an allegation that he stole them.    Justice Hoen’s concurring and dissenting opinion notes that the word “steal” “has the same meaning as misappropriate, but much stronger negative connotations.”  According to Justice Hoen, the word “steal” “carries with it the clear connotation of a crime, together with its attendant evil-minded mens rea. None of that is faithful to the actual allegations made in the Bankruptcy Court by the Trustee.”   Although the divide among the justice about the denotation and connotation of “misappropriate” seems purely semantic, the opinions in Salzano provide an interesting prism into contemporary attitudes about the culpability of white-collar “misappropriation” (in a civil case) as opposed to the simple “street crime” of theft.

Posted by Lyrissa Lidsky on May 19, 2010 at 02:34 PM in Books, First Amendment, Torts | Permalink | Comments (0) | TrackBack

Thursday, May 06, 2010

Acting Like a Reasonable Woman

I’m going to (ab)use(?) my stint on PrawfsBlawg to air something that niggles at me every time I make my way through the reasonable personal standard in my Torts course.

The reasonable person standard (previously, the reasonable man standard) indexes liability to whether an individual acted in the manner of a reasonable and prudent person under the same or similar circumstances.  In making this determination, fact finders may consider an actor’s physical disability and any special knowledge or skill possessed by the actor (i.e., use the conduct of a reasonable person with the physical disability or knowledge/skill of the actor as the standard), but may not consider emotional or mental disability (including, for example, stupidity). 

The reasonable person standard was previously the reasonable man standard.  “The reasonably prudent man was invariably described rather vaguely, but always in male terms….In America, the definition – perhaps the most startling of all – was given by courts and commentators as ‘the man who takes the magazines at home and in the evening pushes the lawn mower in his short sleeves.’…In any event, all these people whose attributes seem, in Europe and America, to define reasonableness are unmistakably male….”  Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law 23, 26 (1985). 

A number of scholars have explored the gender implications of the reasonable person standard.  Ellen Bublick observes that , as applied to the contributory negligence of female rape victims in premises liability cases, the reasonable person standard has been interpreted to require that women greatly circumscribe their behavior to avoid attack (for example, by finding them negligent for going out alone after dark).   Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413 (1999).  Margo Schlanger uses old tort cases involving women to compare a universal tort standard to a reasonable woman standard (for a primer on exploring these issues in a Torts course, see her article Gender Matters: Teaching a Reasonable Woman Standard in Personal Injury Law, 45 ST. LOUIS U. L.J. 769 (2001)) and, in doing so, elucidates “a central question for legal feminist theory . . . whether women's equality and welfare is best fostered by insisting on adherence to universal legal standards or on recognition and even privileging of women's difference from men.”  Id.  See also Margo Schlanger, Injured Women Before Common Law Courts, 1860–1930, 21 HARV. WOMEN’S L.J 79 (1998).

My aforementioned niggle relates to the practical application of the universal reasonable person standard.   Imagine that I slip on a poorly maintained step while lifting my suitcase down the stairs to the subway and break my leg.  In my suit against the MTA, the MTA claims that it was negligent for me to attempt to carry the (20 lb.) suitcase down the stairs.  So, to assess my alleged contributory negligence, the fact finder will need to decide whether the act of carrying the suitcase accords with the conduct of a reasonable person, in like or similar circumstances. 

Does my gender (female) affect the outcome of this assessment?  (By way of warning, I’m now going to engage in a bit of speculation -- permitted, I think, in this blog context.)  Since the physical capability of the lifter seems relevant to resolution of this question (and there are both perceived and actual (average) differences in upper body strength between men and women), it seems to me that it well might. Further, it seems likely to me that presumptions about the relative strength (or weakness) of women would make it harder for a woman to show that she was reasonable in carrying the suitcase.  There are, of course, many women who are much stronger (and more agile, better at balancing, etc.) than many men and likely exceed the presumptive strength that might be assigned on the basis of gender alone.  If I am right about the foregoing (largely and admittedly speculative – notably, Calabresi dismisses the above concern by observing that, with respect to physical attributes, the standard “is a fairly individualized one and hence rarely sexist or racist,” Ideals, Beliefs, Attitudes, and the Law 27), this suggests a few issues. 

Does the way that the reasonable person standard is applied punish superwomen?  Are women who make reasonable decisions to engage in conduct on the basis of their actual strength and capabilities found to be negligent because fact finders apply gendered presumptions of capability?  (Or, more realistically, are settlement figures affected based on a forecast of jury application of these gender presumptions?)  If so, should this trouble us?  There is, for example, probably a general sense of how much weight a man can reasonably carry down stairs and men who are more physically capable are in the same situation as superwomen – act in accordance with your own capabilities at your own risk.   

When a woman (in particular one who departs from an attribute likely to be presumed on the basis of gender, such as a “strong” woman) is accused of negligence, should (or do?) counsel anticipate and specifically rebut such gender presumptions (for example, by offering evidence of agility, strength, etc.)?  Should/do we train counsel to recognize when gender presumptions are likely to come into play and how to rebut them?

The above example uses upper body strength as the basis for the gendered presumption.  The average man does, in fact, have greater upper body strength than the average woman (albeit, as noted above, this average difference may not hold with respect to individuals).  However, it seems likely to me that there are other presumptions that fact finders are likely to make about the capacity of a woman based on her gender that are incorrect both as a general matter and as applied to an individual woman.  Are there other and potentially more pernicious gender presumptions relevant to application of the reasonable person standard?

Finally, many note that the reasonable person standard may, as applied, frequently boil down to a question of what is customary in a community.   The potential gender issues of this can perhaps be elucidated by switching the hypothetical.  What if, instead of carrying a suitcase, I was carrying my 20+ lb. son down the steps?  (Yes, customary and reasonable!)  Or a 20 lb.toolbox?   (Hmmm...) Gendered application of the reasonable person standard seems, if anything, more pronounced and potentially troubling viewed in this way.

I have not found the time to adequately research this can of worms and recognize that the issues raised intersect with equality and critical tort scholarship with which I am largely unfamiliar.  So I thank those more learned in these matters in advance for offering thoughts and/or direction to the relevant scholarship.

Posted by Katrina Kuh on May 6, 2010 at 03:44 PM in Torts | Permalink | Comments (5) | TrackBack

Monday, May 03, 2010

Shooting Fish in a Barrel? The Economic Loss Rule

British Petroleum's oil spill in the Gulf certainly provides ample opportunities to teach or, at this point in the semester, to test the Economic Loss Rule.  In fact, it is such a great candidate for an exam hypothetical, it is like shooting fish in a barrel, if you'll pardon the expression.  Essentially, the BP oil spill is the Testbank case times a hundred, with the specter of unlimited liability looming large, and it will be interesting to see if this very dramatic case results in some expansion of the Economic Loss Rule to allow more injured parties--parties without physical injury or property damage--to recover. 

I'll be teaching the Economic Loss Rule in Advanced Torts this summer at the University of Montpellier, but I'm very curious how many Torts professors out there teach it in the first-year Torts class.  I have taught the Economic Loss Rule to 1L students before, but in a four-hour class something had to give, and it seemed natural to give up one of the most complicated and confused doctrines in all of Torts.  Now I'm wondering if that was the right choice.  What do you think?  

Posted by Lyrissa Lidsky on May 3, 2010 at 09:49 PM in Teaching Law, Torts | Permalink | Comments (5) | TrackBack

Geistfeld on Polsky and Markel's Taxing Punitive Damages

Over at the TortsProf Blog, NYU Prawf, Mark Geistfeld, just posted an interesting set of reactions to the draft of Taxing Punitive Damages that Gregg Polsky and I have posted on SSRN. Thankfully, these reactions appeared prior to publication (go SSRN!!) and so, with some luck and the indulgence of our editors, Gregg and I will have the chance to consider and respond to Mark's comments over the next few weeks as we tweak our draft. (Naturally, we invite others to share their thoughts with us too, either online or offline, prior to publication. And if you'd rather hold your fire until after the piece is out, Virginia Law Review runs "In Brief," an online companion that it will use to host responses to our piece, and our eventual reply.)  

Mark's comments appear below: 

As the academic year winds down, I usually rearrange the piles on my desk in an effort to mark the onset of another summer full of promise and unrealistic expectations. While rearranging the pile “tort-related things I’d like to read when I get a chance,” I came across the article by Gregg D. Polsky & Dan Markel, “Taxing Punitive Damages” (2010) (forthcoming Virginia Law Review).  Earlier this semester I had downloaded the manuscript and dutifully placed the printout in the appropriate pile. Since then, I’ve seen passing reference in the media to the apparent absurdity of federal tax rules that permit the deductibility of punitive damage awards—a deduction targeted for elimination in President Obama’s 2011 fiscal year budget.  How could punishment plausibly deserve a tax break?  The issue is more interesting than I had initially recognized, so I paused to peruse more closely the offerings of Polsky & Markel on the matter. 

They make the nice point that if punitive damages are not deductible, then plaintiffs and defendants have an incentive to “disguise punitive damages as compensatory damages in pre-trial settlements.” Doing so decreases the (after tax) cost of settlement for defendants, creating a gain that can then be shared by the settling parties.  By way of extended analysis, Polsky and Markel go on to conclude that the best way to solve the “under-punishment problem” created by deductibility is not to eliminate the tax break, as everyone had previously concluded, but instead to apprise juries of the deductibility issue so that they will “gross up” the punitive award to offset the tax break. 

Largely missing from the analysis, however, is discussion of how liability insurance affects the incidence of tort liability. Once this dimension of the problem has been recognized, it becomes apparent that there is a much stronger case against the deductibility of punitive damages.

Consider a world (largely like our own) in which every defendant worth suing has liability insurance covering at least a portion of a tort judgment (or any other form of civil liability that permits the award of punitive damages).  Suppose our insured defendant has incurred punitive damages liability. Perhaps surprisingly, this form of liability is not expressly excluded from coverage under the standard-form liability-insurance contracts.  Whether the defendant can actually collect on the insurance, however, depends on whether the jurisdiction permits the insurability of punitive damages as a matter of public policy.

Nine or so jurisdictions, including California and New York, prohibit the insurance of punitive damages.  In these jurisdictions, any settlement between an insured defendant and the tort plaintiff presumably will allocate the appropriate amount to punitive damages. Regardless of how the defendant and plaintiff would otherwise like to characterize the proportion of compensatory and punitive damages covered by the settlement, the insurer is obligated to indemnify only the former category and accordingly will seek to maximize the portion of the settlement attributable to punitive damages (and excluded from coverage).  The insurer usually can police the terms of the settlement directly (the insurance contract gives the liability insurer the right to settle the case).  But if the insurer does not fully participate in the settlement, the terms of the settlement would not have preclusive effect in a subsequent coverage dispute with the tort defendant/policyholder regarding the amount of the settlement that is covered by the policy and properly allocable to compensatory damages.  The liability insurer, therefore, presumably will monitor the portion of the settlement allocable to punitive damages, effectively precluding plaintiffs and defendants from otherwise manipulating settlements in a manner that would thwart efforts to restore the full “sting” of punitive damages by making them nondeductible.

The argument against deductibility then largely generalizes to the remaining jurisdictions that permit the insurability of punitive damages.  The standard-form liability-insurance contracts do not cover liabilities for “expected or intended harms.”  In these cases, the insurer can deny coverage altogether—for both compensatory and punitive damages—and so it will not monitor the portion of any settlement properly allocable to punitive damages.  In light of the settlement problem identified by Polsky and Markel, the best approach would be to deny deductibility for the entire liability.  These instances of intentional wrongdoing clearly implicate the retributive concerns that would create a problem of “under punishment” in the event that the punitive award receives a tax break.  Rather than let the litigants manipulate settlements for tax reasons, why not eliminate the tax break altogether for liabilities of this type?  Why should these intentional wrongdoers be able to deduct any of their liabilities as a cost of doing business?

Regardless of how one answers this question, the case for nondeductibility remains intact.  The public policy concerns implicated by the insurability issue are substantively identical to those posed by the deductibility issue: each allows the tort defendant to distribute the cost of the punitive award to a wider group (other policyholders; other taxpayers).  In deciding to permit the insurance of punitive damages, a jurisdiction has concluded that the redistribution afforded by liability insurance does not create any public policy problem of “under punishment.” So, too, in these jurisdictions the redistribution afforded by the deductibility of punitive damages does not create any public policy problem of “under punishment.” Consequently, even if a tax rule of nondeductibility could be largely circumvented by the settling parties as Polsky and Markel conclude, there is no “under-punishment problem” created by the de facto deductibility of punitive damages.  This does not mean that the deductibility issue is largely irrelevant.  The tax rule against deductibility is still desirable as a federal matter because it furthers the public policy of those states that reject the insurability of punitive damages on the ground that wrongdoers should not be able to redistribute their punishment to others.

Admittedly, I live in a state where punitive damages are not insurable, and the analysis of Polsky and Markel has much more to offer than I have indicated.  They artfully unravel the surprising complexity of what appears to be a rather straightforward issue—whether bad behavior deserves a tax break.  Clearly, I should have put this article into my “read right away” pile (although that pile, of course, also ends up getting shuffled around at the close of the academic year).

 

- Mark Geistfeld

Sheila Lubetsky Birnbaum Professor of Civil Litigation

New York University School of Law

Posted by Dan Markel on May 3, 2010 at 11:48 AM in Article Spotlight, Dan Markel, Retributive Damages, Torts | Permalink | Comments (1) | TrackBack

Thursday, April 29, 2010

Punitive Damages and Private Ordering Fetishism

In two recent response essays by distinguished torts scholars, Professors David Owen and Michael Krauss, I was charged with "aggravating punitive damages" and instigating the "death of private ordering." 

Who, me?

In seriousness, I have a somewhat more considered and elaborated answer, and I've got a draft of that reply in a new essay up on SSRN by the title of Punitive Damages and Private Ordering Fetishism.  I'd be grateful if you could share with me any thoughts or reactions; it weighs in at just under 10,000 words. Here's the abstract, with links to the full conversation after the jump.

This essay is a reply to two recent responses that appeared in the U. Penn Law Review's online companion, PENNumbra by Professors Michael Krauss and David Owen. The essay's principal goal is to clarify some areas where I think Professors Krauss and Owen misunderstood some aspects of my proposed framework for restructuring punitive damages, a framework I developed in two recent articles. Those clarifications address issues including but not limited to how punitive damages law ought to address the wealth or financial condition of the defendant, the defendant’s status as a corporation, settlement dynamics and insurance. Before I answer Professor Krauss’s and Professor Owen’s challenges in those particular domains, however, I begin the essay with some more general observations about what role tort law could and should serve. My hope is that these initial remarks will provide some context for the nature and significance of the particular policy disputes we have with respect to punitive damages law.

You can find the articles Professor Krauss and Owen respond to here:

Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239-340 (2009) (available at http://ssrn.com/abstract=991865 )

Markel, How Should Punitive Damages Work?, 157 University of Pennsylvania Law Review 1383 (2009) (available at http://ssrn.com/abstract=1260019

You can find Professor Krauss's Response here:
Michael I. Krauss, Response, “Retributive Damages” and the Death of Private Ordering, 158 U. Pa. L. Rev. PENNumbra 167 (2010), http://www.pennumbra.com/responses/02-2010/Krauss.pdf

You can find Professor Owen's Response here:
David G. Owen, Response, Aggravating Punitive Damages, 158 U. Pa. L. Rev. PENNumbra 181 (2010), http://www.pennumbra.com/responses/02-2010/Owen.pdf

Posted by Dan Markel on April 29, 2010 at 10:31 AM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory, Retributive Damages, Torts | Permalink | Comments (2) | TrackBack

Friday, April 02, 2010

"Hot News" Misappropriation: Implications for Bloggers? for Bloomberg News?

What happens when the interests of newsgatherers and news aggregators collide?  That was the issue before District Court Judge Denise Cote last month in Barclays Capital Inc. v. Theflyonthewall.com (S.D.N.Y., 3/18/10), and the opinion in the case arguably has negative (dare I say ominous?) implications for bloggers and for anyone who republishes truthful information about a matter of public concern, even if that information has already leaked into the public domain.

The plaintiffs in the case were the financial services firms Barclays Capital, Merrill Lynch, and Morgan Stanley.  They sued Theflyonthewall.com (Fly) for misappropriation and copyright infringement for redistributing their stock analysts' investment recommendations "through unauthorized channels of electronic distribution."  Fly is an Internet subscription service that aggregates and distributes "relevant, market-moving financial news and information."  Fly often obtained research reports and recommendations via leaks from plaintiffs' employees or clients.  Fly would then quickly distribute the recommendations before the New York Stock Exchange opened, thereby undercutting the plaintiffs' abilities to profit from their reports.

After a bench trial, District Judge Cote entered judgment against Fly for copyright infringement, and awarded statutory damages, a permanent injunction against direct copying and republication of the reports, and attorneys' fees for the portion of the litigation expenses associated with pursuing the copyright infringement claim.  She also held that Fly had engaged in "hot-news misappropriation" when it redistributed the recommendations from the plaintiffs firms' investment reports before the opening of the New York Stock Exchange and crafted a "time-delay" injunction requiring Fly to delay future distributions for a specified period after the firms released their reports to remedy the problem.[Full details below.]

The theory of "hot news" misappropriation stems from International News Service v. Associated Press, 248 U.S. 215 (1918), in which the Supreme Court held, under federal common law, that "hot" news is "quasi-property."  That case involved a claim by the Associated Press against a competing news service that was obtaining and then redistributing on the West Coast AP battlefront news releases during World War I.  The Court's decision reflects the notion that "time is property", or as my colleague Michael Wolf puts it, the decision protects the "money value of time" as opposed to the "time value of money."  It also protects the "labor value" that AP invested in newsgathering, at least for a limited time.  The "hot news" misappropriation doctrine was criticized by no lesser lights than Justice Brandeis and later Judge Learned Hand. In fact, Justice Brandeis wrote in dissent in INS v. AP that "the general rule of law is that the noblest of human productions--knowledge, truths ascertained, conceptions,and ideas--become, after voluntary communication to others, free as the air to common use."  Despite the pedigree of its critics, the hot news misappropriation tort nonetheless caught on.

Indeed, Judge Cote relied on a Second Circuit decision, National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), to define the contours of the tort.  There, the NBA sued the maker of a hand-held pager that provided real-time information about basketball games.  The Second Circuit held that a "narrow" hot news misappropriation claim could survive preemption by the federal Copyright Act when "extra elements" were present.  The extra elements are:  "(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendants use of the information constitutes free riding on plaintiff's efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened."

Applying this test, Judge Cote held that Fly had misappropriated the research reports of the financial services firms when it distributed them to its subscribers before the opening of the New York Stock Exchange.  Judge Cote wrote:  "Fly's core business is its free-riding off the sustained, costly efforts by the Firms and other investment institutions to generate equity research that is highly valued by investors.  Fly does no equity research of its own, nor does it undertake any original reporting or analysis . . . [Fly's] only cost is the cost of locating and lifting the Recommendations and then entering a few keystrokes into its newsfeed software. Although Fly does attribute each of the Recommendations to its originating firm, if anything, the attributions underscore its pilfering." 

Alarmingly, Judge Cote absolutely rejected the argument that Fly had a right to redistribute truthful information that had already made its way into the public domain.  "[I]t is not a defense to misappropriation that a Recommendation is already in the public domain by the time Fly reports it."  The judge found it of no moment that the "actors in the marketplace repeat news of Recommendations to their friends and colleagues, such that the word inevitably gets out.  Rather, it is that Fly is exploiting its self-described 'hefty relationships with people in the know' to gather information from the rumor mill and run a profitable business dedicated, in large part, to systematically gathering and selling the Firms' Recommendations to investors."  

Judge Cote also found that the plaintiffs were in direct competition with Fly even though they were not themselves in the news business.  As to the final factor of the NBA test--whether the plaintiffs would have a reduced incentive to invest in research--Judge Cote found that the plaintiffs' investments in research had diminished because Fly and other news services had published their leaked recommendations.  Significantly, and quite interestingly, Judge Cote found that the "unauthorized redistribution of [analyst] Recommendations"  was a "major contributor to the decline in resources that each Firm devotes to equity research."  (emphasis mine) To be fair, the judge did concede that there were other factors in play during this time that might have affected analyst staff and budgets.  She observes, for example, that "[s]ince 2008, the world has experienced an economic cataclysm."  Still, it is richly ironic that these firms are concerned about protecting the "integrity" of their equity research.

In crafting a remedy for Fly's misappropriation, Judge Cote took into account "public policy considerations" but made no mention of the First Amendment.  Specifically, she observed that the production of equity research "is a valuable social good" that will be "underproduced unless the Firms can achieve an economic return on their investment."  She also noted that there is an "important" public interest in "'unrestrained access to information', particularly when the information is heavily fact-based."  She therefore enjoined Fly from unauthorized redistribution of Plaintiffs' research recommendations released when the market is closed "until one half-hour after the opening of the New York Stock Exchange or 10 a.m., whichever is later."  She enjoined Fly from publishing recommendations issued when the market is open until two hours after their release by the Plaintiffs. 

From a media lawyer's perspective, there are compelling interests on both sides of the case.  On one hand,the newsgatherers and content generators wish to turn a profit (and stay in business), and their ability to do so is threatened by online news aggregators.  On the other, this case involves a prior restraint preventing republication of newsworthy information, even if that information has already entered the public domain.  It also involves the imposition of tort liability for the publication of lawfully obtained truthful information.  Given this conflict, surely the district judge should have at least considered how to reconcile her decision with First Amendment cases like Near v. Minnesota, Florida Star v BJF, and Bartnicki v. Vopper.  Fly evidently plans to appeal the district court decision, so perhaps the appellate court will do a better job of reconciling the conflicts present in this case. 

Posted by Lyrissa Lidsky on April 2, 2010 at 04:18 PM in Blogging, Constitutional thoughts, Corporate, First Amendment, Information and Technology, Intellectual Property, Torts, Web/Tech | Permalink | Comments (3) | TrackBack

Friday, March 19, 2010

Homosexuality as Defamation: When Will It End?

My previous post on cyberbullying involved, among other things, a claim by the plaintiff that his reputation was injured by being called gay.  Just last month, a district court judge decided that a reasonable jury might determine that it is defamatory to call someone gay. Robinson v. Radio One, 2010 Westlaw 606683, (N.D. Texas, Feb. 19, 2010)  I find cases like this fascinating because they expose the public policy choices that underlie the decision whether to treat a statement as defamatory or not.

Thirteen years ago, I lamented in print that  "[c]ourts have been slow to embrace a progressive view by declaring that an allegation of homosexuality cannot be libelous.  The courts act as if they are not in a position to pick and choose but must accept social prejudices as they find them."  I wrote then, and I still believe, that the defamation cases involving a false attribution of homosexuality are comparable to the pre-1960s cases finding it defamatory to call a white person black, and I concluded by expressing the "hope that one day the modern homosexuality cases will seem as anachronistic as the pre-1960s race cases."  I hold this view despite the fact that I understand that being falsely labelled homosexual can result in real harm.  And I am sure some will contend that ignoring the reality of homophobia won't make it go away but will instead leave a plaintiff who has been falsely labeled homosexual without compensation for  harm caused by a wrong-doer.  However, I would contend that defamation's symbolic function is as vital as its instrumental one.  Courts can, have, and should continue to declare the values of certain groups as too antisocial to be validated by law.    

Fortunately, some courts are beginning to share this view.  The U.S. District Court for the Southern District of New York rejected the claim that being called gay is defamatory, see  Stern v. Cosby, Case 1:07-cv-08536-DC, as did a federal district judge in Massachusetts in Albright v. Morton, 321 F.Supp. 2d 130 (D. Mass. 2004).  Indeed, the Massachusetts district judge wrote a ringing repudiation of the notion that homosexuality can be defamatory in the eyes of a “substantial and respectable community.”  In Albright, one of Madonna’s former bodyguards sued for defamation and other torts, claiming that a photo caption in a book about the singer misidentified Madonna’s companion as the plaintiff when in fact it was a gay man. The district judge dismissed the plaintiff’s defamation action, holding that a statement imputing homosexuality to an individual not only is not defamation per se, but is incapable of a defamatory meaning. “‘[D]efamation per se’ should be reserved for statements linking an individual to the category of persons ‘deserving of social approbation’ like a ‘thief, murderer, prostitute, etc.’ . . .  To suggest that homosexuals should be put into this classification is nothing short of outrageous.”  The judge further observed:

  "[I]f Albright claimed that he was a white person wrongfully labeled African-American, the statement would not be defamation per se, even if segments of the community still held profoundly racist attitudes.  In the 1900’s, such statements were regularly deemed defamatory in a number of decisions that seem anachronistic, if not offensive, to modern eyes.  For example, in Bowen v. Independent Publishing Co., 230 S.C. 509, 96 S.E.2d 564 (1957), the Supreme Court of South Carolina found that it was libelous per se to include a white person’s name in connection with a news item under the heading “Negro News,” because of the continued existence of social prejudice against African Americans. Citing cases stretching back to 1791, the Court concluded that neither the abolition of slavery, nor changes in the “legal and political status of the colored race” warranted a departure from South Carolina precedent.  Id. at 565.  What the Court was doing, in effect, as one commentator noted, was “assuming without question that the plaintiff’s community was a ‘considerable and respectable’ one whose values are worthy of the law’s attention, respect, and support,” and in doing so, “validate[d] racist views.”  Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L.Rev. 1, 30 (1996).  Recent opinions expressly reject the premises of the earlier law.  See  Thomason v. Times-Journal, Inc., 190 Ga.App. 601, 379 S.E.2d 551, 16 Med. L. Rptr. 2200 (1989)(refusing to concede that plaintiff may have suffered from social prejudice of others where plaintiff sued over the publication of a false obituary that gave a funeral home listing that catered to a primarily “black clientel [sic]”)."

Despite the district judge’s willingness to leverage the symbolic function of defamation law, the First Circuit ended up affirming the dismissal on narrower grounds, holding that the photo was not reasonably susceptible of a defamatory meaning, because readers who realized the man in the picture was homosexual would also realize that the man was not the plaintiff.  Moreover, the caption, which identified plaintiff as Madonna’s secret lover, and accompanying text made it clear that the plaintiff was heterosexual.  Therefore, the First Circuit concluded, “given the [district] court’s correct finding that the photograph and its caption make no imputation of homosexuality, we need not decide whether such an imputation constitutes defamation per se in Massachusetts.”  Amrak Production, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005). 


Posted by Lyrissa Lidsky on March 19, 2010 at 04:45 PM in Torts | Permalink | Comments (2) | TrackBack

Thursday, March 18, 2010

New Cyberbullying Case: D.C. v. R.R.

Here's a new cyberbullying case with truly atrocious facts.  It is called D.C. v. RR and was decided by a California Court of Appeal.  It involves a 15-year-old who received harassing comments on a website he maintained to promote his entertainment career.  The defendant filed a motion to strike, contending the action was a SLAPP suit.  The court affirmed the denial of the motion because the defendant did not demonstrate that his message was made in connection with a "public issue."  One part of the court's reasoning in this regard is troubling because the court rejects the argument that comments responding to a website promoting a celebrity's entertainment career are a matter of public interest, but any broad language in the case can probably be attributed to its admittedly egregious facts.  This facet of the opinion, and more, are worthy of further exploration in a subsequent post.  For now, however, I'd like to point out a fascinating, and somewhat chilling, feature of the case.  I find it especially chilling because I'm the mother of three young sons, one of whom is just entering puberty.  The defendant, R.R., explains his motive for posting a hateful comment as follows:

―. . . That afternoon, I was in a playful mood and I decided to add my own message to the Internet graffiti contest that was apparently going on. I posted a message which stated: ‗Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I‘ve . . . wanted to kill you. If I ever see you I‘m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.‘
―. . . My motivations in sending this email had nothing to do with any perception of [D.C.‘s] sexual orientation, and certainly did not reflect an intention to do him physical harm. As set forth above, I had no personal knowledge or belief about [D.C.‘s] sexual orientation. No one ever told me he was gay, and I had no thoughts on the subject matter. My message is fanciful, hyperbolic, jocular, and taunting and was motivated by [D.C.‘s] pompous, self aggrandizing, and narcissistic website — not his sexual orientation. My only other motivation, a bit more pathological, was to win the one-upmanship contest that was tacitly taking place between the message posters. Everything about the message is fanciful. I assumed that any rational person would understand that I was just inarticulately and offensively saying, ‗I am repulsed by your self promotional style.‘ I certainly did not think anyone would believe that they could eat their own heart after it was taken from their body. I assumed that a 10 year old child would understand that you would be dead if your heart was removed. I obviously didn‘t have school age children and I had never listened to any of [D.C.‘s] songs. Paradoxically, my message states that my motivation was a hatred of [D.C.‘s] song, not his sexual orientation, i.e., my message itself . . . belies the allegation in the complaint.
―. . . The complaint alleges that my motivation was my perception that [D.C.‘s] sexual orientation was gay. As set forth above, I had no opinion regarding [D.C.‘s] sexual orientation. More importantly, I wouldn‘t care less if he was gay. I have no animosity towards gays, and . . . even if I thought [D.C.] was gay, it couldn‘t be a basis for any hatred or threat. . . . [O]ne of my favorite relatives is openly homosexual and I have been quite vociferous in defending this relative from fundamentalist views that characterize homosexuality as a disease. In fact, one [of] my good friends at school is a member of the Gay-Straight Alliance. I have made my views clear that I think this student‘s involvement is ‗cool.‘ Likewise, I have walked side by side with gay couples in the AIDS walk, supporting their position, and I have worked through a church at a soup kitchen for AIDS patients, many of whom are gay. . . . I am not homophobic and the basis of my conduct was childishness and some repulsion to [D.C.‘s] grandiose style — not his sexual orientation.
―. . . The next day after the offensive postings, at school, I heard students talking about the posts. The students expressed the view that the posts were a funny gag. No one took the posts seriously as a death threat or an accusation of homosexuality. The posts were treated as a goof. I did not participate in these conversations because I was ashamed of my participation. In retrospect, my conduct felt infantile, immature, and was beneath me. I felt ashamed that I would allow the desire for peer approval, ‗peer pressure,‘ to induce me into acting like an idiot.

Posted by Lyrissa Lidsky on March 18, 2010 at 03:01 PM in First Amendment, Torts | Permalink | Comments (6) | TrackBack

Wednesday, March 17, 2010

Defamation, or Just Masturbation?

Here's the link to a news article describing an interesting lawsuit brought by former model Irina Krupnik in Manhattan Supreme Court against NBC Universal and Universal Pictures Co.  Ms. Krupnik is disgruntled, and understandably so, because a bikini-clad photo of her was used as a masturbation aid by a "purposely unattractive male" character (played by Jon Favreau) in the movie Couples Retreat.  Although Ms. Krupnik had signed a release allowing use of her photos by stock photo agencies, her lawyer contends that "[i]n no way at all did she even remotely expect the [photos] to turn up in some raunchy movie scene."  According to some news reports, Ms. Krupnik also sued for defamation and invasion of privacy.  She contends that being associated with the movie scene marred her "wholesome image." 

This case reminds me a bit of Braun v. Flynt, a 1984 case in which an entertainer who had an act with a swimming pig sued a pornographic magazine called Chic when it used her photo in a sexually suggestive manner.  Braun lost on her libel claim but won on a false light theory; however, Ms. Krupnik can't use this theory because New York courts don't recognize the false light tort.   See Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993).   Moreover, Chic's use of Braun's photo created an implication that Braun consented to or was complicit in its use.  Arguably, the use of Krupnik's photo as the "inspiration" for the character in Couples Retreat does not create the same negative implication about Ms. Krupnik's complicity. 

Posted by Lyrissa Lidsky on March 17, 2010 at 09:39 PM in First Amendment, Torts | Permalink | Comments (1) | TrackBack

Monday, February 08, 2010

Toyota Class Actions: let the games begin

The National Law Journal reports on the several class actions that have been brought against Toyota in the wake of the gas pedal problems and recalls.  The lawsuits are consumer class actions that seek damages for economic losses stemming from reduced value of cars subject to this problem.

It looks like the lawsuits are being filed state by state with the expectation that they will then be consolidated as an MDL.  The lead plaintiffs in the lawsuits appear to be persons whose cars actually experienced the gas pedal issues.  Although these plaintiffs have not alleged personal injury, there will be some serious typicality issues given the very broad class definition that the attorneys are seeking.

While the plaintiffs face some challenges in terms of class certification and causation, there is no question that multiple billion dollar lawsuits will pose a major litigation challenge to Toyota going forward. 

What will be interesting to watch is the delicate balance between the remedies that Toyota has already offered, the recalls and other actions by NHTSA, and the machinery of private remedies writ large over a vast number of car owners.

Posted by Robin Effron on February 8, 2010 at 07:42 AM in Civil Procedure, Current Affairs, Torts | Permalink | Comments (0) | TrackBack

Tuesday, January 05, 2010

Cyberbullying/Cyberboorishness

If you’re a hammer, everything looks like a nail.  If you’re a law professor, every social problem seems to call for a legal solution.  “Cyberbullying” is this decade’s hate speech.  Like “hate speech,” "cyberbullying" is a label, not a legal definition.  The inherently pejorative label carries the implication that “cyberbullying” is a new and serious problem that the law should address.  Of course, the law already does address “cyberbullying.”  Online threats, stalking, and hacking are crimes.  Online defamation  is libel, and intentional infliction of emotional distress is tortious whether it takes place online or off.   

But what, you might ask, can be done about cyberbullies whose bad conduct isn’t proscribed by existing law?  For example, what should be done about law students who make sexist or racist or demeaning remarks about their classmates online, gaining the courage to speak from the cloak of anonymity?  Perhaps they should be denied admission to the bar on the grounds that they lack the character and fitness necessary to be lawyers.  This is the topic for debate by an AALS panel sponsored by the Section on Women in Legal Education and the Section on Defamation and Privacy.  The title of the panel is "The First Amendment Meets Cyber-Stalking Meets Character and Fitness," and it will be held on Saturday morning at 8:30.  Full disclosure:  I'm on the panel, cast in the role of defending cyberboorishness against legal sanction.  It should be fun.

Posted by Lyrissa Lidsky on January 5, 2010 at 05:07 PM in First Amendment, Gender, Life of Law Schools, Torts | Permalink | Comments (4) | TrackBack

Sunday, July 26, 2009

Taxing Punitive Damages, etc.

Update 8/16: We've now got a first shitty draft available for private circulation; if there are tax or torts mavens who wish to read it, please email me asap. Thanks.

It's about four days until my wife is "due." During this pre-baby period, one of my projects has been an effort with my friend and co-author, Gregg Polsky, to finish our "shitty first draft" of Taxing Punitive Damages. I'm happy to say we're almost there. This paper is actually the fourth paper on punitive damages I've been involved with the last few years. The first two came out this past spring (here and here) and I was initially planning on turning to work further on and submit the third one, Punitive Damages and Complex Litigation, later this summer.  But for a cluster of reasons, that piece is now on the back burner and has swapped places with the fourth piece -- the one with Gregg on the intersection of taxation and punitive damages. 


Unlike the earlier co-authoring work I did (and am doing still) with Ethan and Jennifer, where we had overlapping areas of expertise as well as separate ones, this piece with Gregg presents a collaboration where there's really no overlap of expertise. He's the tax guy and I'm, well, the guy who does whatever it is that I do. While I'm definitely not the tax guy -- I never took tax in law school, to my regret, so I've been trying to learn a few things while writing this paper up -- I confess I've had fun learning about all this new legal mumbo jumbo. Tax is fun.  Yeah, I said it.*

Over the next week or so and in the course of a few posts, I'll try to share some parts of the paper's main ideas. There's a rough stab at an abstract after the jump. But keep in mind that all this is tentative, so if you think we're off-base, please let us know.  By the way, we expect to have a circulable draft in the next week or two. If you're a tax person and/or interested in federalism (Brian G? Rick H?), we hope you'll be among the first to read it.

Taxing Punitive Damages
In this article, we address the important but astonishingly under-examined issues associated with the taxation law and policy related to punitive damages. For the most part, the tax consequences of punitive damages are not on anyone’s minds, and as a result of this blind spot, plaintiffs and their lawyers are likely leaving enormous amounts of money on the table in every case involving punitive damages against defendants whose torts occurred in the context of business operations. Of course, even if we assumed that decision-makers regarding punitive damages were aware of the relevant tax effects, there are still a number of other important issues affecting whether a jurisdiction should make punitive damages a) deductible from defendants’ gross income or non-deductible, and b) taxable gains to the plaintiff.  This Article examines those issues, and by doing so, spotlights the policy difficulties associated with trying to use tax law to help achieve the goals of current punitive damages law.  Contrary to a number of scholars who have flatly endorsed the move to a non-deductibility rule to simply increase the putative “sting” of punitive damages, we explain what that change in taxation would augur for a broad array of policy concerns including federalism, settlement incentives, collusion against third parties, and administrative oversight. Because we think a lot of the difficulties associated with the taxation of punitive damages cannot be readily fixed simply by tweaking tax law, we sketch out a vision for what a more attractive punitive damages regime would look like, and how the tax rules would correspond appropriately. 

*Btw, I associated the "Yeah, I said it" line with Chris Rock and his famous joke about who can and cannot be First Lady, but it seems Wanda Sykes may have laid claim to it more prominently by her book title.

Posted by Dan Markel on July 26, 2009 at 02:00 PM in Article Spotlight, Dan Markel, Retributive Damages, Torts | Permalink | Comments (2) | TrackBack

Friday, July 10, 2009

Sheila B. Scheuerman on Markel's "Retributive Damages"

Somewhat randomly, I just stumbled across this new essay on the Legal Workshop by Professor Sheila Scheuerman that takes my "Retributive Damages" piece in Cornell to task for a) conjuring a scheme that does not resemble punitive damages, and at the same time b) ostensibly suffers from due process questions arising from the SCT's punitive damages jurisprudence.  Hmmm.  

After the jump, I've reprinted her critique. I'll try to work up a response and share it next week. Though I guess the title of her response suggests something like I'm Alice in Wonderland, I'm nonetheless very grateful to Prof. Scheuerman for the attention she's paid to my work. I hope it withstands her scrutiny, at least when viewed in conjunction with the second piece in the series, How Should Punitive Damages Work?, which came out in final form a couple months ago. If you've read my piece(s), feel free to weigh in on the matter in the comments. Have a good weekend!


Through the Looking Glass: A Response to Professor Dan Markel’s Retributive Damages

In Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction,1 Professor Dan Markel “reimagine[s]” the law and proposes an interesting theory of punitive damages.2 Unlike work by other scholars,3 Professor Markel intentionally situates his theory of “retributive damages” outside the historical framework and doctrinal limits of punitive damages.  Instead, Professor Markel argues that states should replace the current punitive damages framework with a new statutory scheme akin to the federal sentencing guidelines.  Though satisfying on a purely theoretical level, Professor Markel’s paradigm raises two initial questions.  First, can the “retributive damages” model properly be considered punitive damages?  Second, do “retributive damages” avoid the doctrinal problems that have plagued punitive damages for decades?  In my view, the answer to both questions is “no.”

 
I.
It’s Not “Punitive Damages”

In this first article in a planned quartet, Professor Markel proposes using public retributive justice theory to frame a new system of punitive damages.  Under his proposal, state legislatures would define the conduct subject to retributive damages by statute.  Plaintiffs who were harmed by a defendant’s violation of the retributive damages statute could seek retributive damages as a remedy in a traditional tort action.  However, if the plaintiff chose to forgo retributive damages or if the statutory violation did not cause any harm, private attorneys general could bring an action for retributive damages alone.  In either case, the jury would use a set of legislative guidelines to determine a reprehensibility “score” for the defendant’s conduct.  In a structure similar to the criminal sentencing guidelines, the judge would then take the jury’s reprehensibility score and apply it to a statutorily defined table setting the amount of damages based on the defendant’s wealth.  Next, courts would evaluate the profitability of the defendant’s conduct.  If the reprehensibility-based damages combined with compensatory damages did not eliminate the profit from the defendant’s wrongdoing, courts also would impose a gain-elimination penalty.  The reprehensibility penalty and the gain-elimination penalty would both be paid to the state and could be credited against future criminal sanctions.  To encourage suits under this scheme, the defendant would be required to pay a fixed $10,000 award to the named plaintiff as well as the plaintiff’s attorney’s fees.  Finally, a plaintiff could not settle a retributive damages claim without state approval.

Putting aside the merits of Professor Markel’s retributive damages scheme as a type of damages, one thing is clear: it is not punitive damages.  Like Professor Markel’s “retributive damages,” punitive damages are “extra-compensatory” in that both types of awards exceed the plaintiff’s actual harm.4 But that’s where the similarities end.  Unlike the statutory scheme envisioned by Professor Markel, punitive damages are a type of common law damages available in a civil tort suit by a private plaintiff.5 In most states, juries are instructed to calculate the amount of punitive damages based on a variety of factors.6 Those factors include the reprehensibility of the defendant’s conduct, but they also include numerous other factors.7 Moreover, in most states, plaintiffs keep the bulk of a punitive damages award.8

Professor Markel would change so many of these characteristics that it is impossible to consider his proposal a form of “punitive damages.”  Consider just a few of the differences.  Retributive damages can be pursued by uninjured third parties or the state itself; punitive damages can be pursued only by the tort victim.  Retributive damages are awarded wholly to the state; punitive damages are awarded to the private plaintiff.  Retributive damages are calculated according to a statutorily defined table; punitive damages are calculated by a jury according to common law principles.  Retributive damages cannot be settled without the approval of the state; punitive damages can be settled at the will of the parties.

To be sure, scholars have criticized many of these features of punitive damages.9 And it is true that judicial opinions largely have failed to articulate a coherent rationale for punitive damages.  Nevertheless, despite the ongoing debate about the theoretical justifications for punitive damages, nearly all fifty states and federal courts have accepted the doctrine of punitive damages.10 Indeed, punitive damages have a long historical pedigree dating back to the Hammurabi Code in 2000 B.C.11

 
II.
A Few Due Process Problems with “Retributive Damages”

The question then becomes whether “retributive damages” would be better than the current system of punitive damages.  Because Professor Markel’s article is only the first of a planned series, much is left unanswered at this stage, which makes a complete assessment of “retributive damages” difficult.  I’d like to consider a couple of threshold due process issues.

As an initial matter, tying the amount of the retributive damages award to the defendant’s wealth, as Professor Markel’s model would do, raises facial due process concerns.12 Under Philip Morris v. Williams, the Court held that “the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon non-parties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.”13 In addition, under State Farm v. Campbell, “[a] State cannot punish a defendant for conduct that may have been lawful where it occurred.”14 Nor can a state punish the defendant for unlawful conduct outside its jurisdiction.15 Basing a retributive damages award on a defendant’s wealth, however, risks punishing a defendant for harm to non-parties in violation of Philip Morris, and further risks punishing a defendant for lawful conduct and out-of-state conduct in violation of State Farm.16

Moreover, anchoring the amount of a penalty to the defendant’s wealth does not take into account the second BMW guidepost: the ratio between the extra-compensatory award and “the actual harm inflicted on the plaintiff.”17 Although Professor Markel correctly notes that “harm” is not per se limited to compensatory damages alone, his retributive damages scheme does not provide room for the jury—or judge on post-verdict review—to evaluate the reasonable relationship requirement.  In response, Professor Markel points to the legislative foundation of his new system and argues that the statutory nature of retributive damages justifies greater deference by courts.  Thus, he suggests that the reasonable relationship requirement would not apply to “retributive damages.”  As I previously have argued,18 however, legislative penalties are not immune from constitutional scrutiny.  Rather, the Supreme Court has applied the same constitutional excessiveness standards, including the reasonable relationship requirement, to jury awards of punitive damages as well as criminal fines and sentences.19 Thus, this constitutional requirement cannot be ignored.

Finally, allowing a private attorney general to sue based on harm to a non-party violates the black letter of Philip Morris. Professor Markel acknowledges this issue, but he argues that the retributive damages scheme survives constitutional scrutiny because the private attorney general “is not suing to recover for harm to the victim, but rather to initiate an intermediate sanction for the defendant’s wrongful conduct.”20 This argument misses the mark.  The Supreme Court stated unambiguously that the amount of a punitive damages award must be tied to the harm to the individual plaintiff: a punitive damages award cannot be used “to punish a defendant directly on account of harms it is alleged to have visited on nonparties.”21 Moreover, allowing a retributive damages award to be based on harm to non-parties would prevent the defendant from raising all possible defenses.  In Philip Morris, for example, the Court noted that other allegedly injured smokers might have known smoking was dangerous or might not have relied upon the defendant’s statements.22 Professor Markel’s retributive damages scheme raises similar concerns.

 
III.
Conclusion

In short, Professor Markel does not suggest a new theory of punitive damages that harmonizes the rather confused law in this area.  Rather, he offers a new statutory civil penalty system, and it remains unclear whether this system will survive due process scrutiny.  Beyond these questions, I wonder about the inevitable issues that would arise from a system that combines aspects of the harshly criticized sentencing guidelines with the complexity of qui tam law added on top of existing punitive damages jurisprudence.  I look forward to seeing how Professor Markel addresses these and other underlying issues in his subsequent pieces.dingbat


Acknowledgments:

Copyright © 2009 Cornell Law Review.

Sheila B. Scheuerman is Associate Professor of Law at Charleston School of Law.

Special thanks to Keith N. Hylton, Anthony J. Sebok, Christopher J. Robinette, and Benjamin C. Zipursky for comments.

This Editorial is a response to the following Legal Workshop Editorial:  Dan Markel, Retributive Damages as Intermediate Public Sanctions: A Synopsis, LEGAL WORKSHOP (May 12, 2009), based on A Theory of Punitive Damages as Intermediate Sanction, 94 CORNELL L. REV. 239 (2009).
Click Here for the Markel Legal Workshop Editorial.
Click Here for the full Markel Article.

  1. Dan Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 CORNELL L. Rev. 239 (2009). 
  2. Id. at 246. 
  3. See, e.g., Keith N. Hylton, Reflections on Remedies and Philip Morris v. Williams, 27 REV. LITIG. 9 (2007); Christopher J. Robinette, Peace: A Public Purpose for Punitive Damages?, 2 CHARLESTON L. REV. 327 (2008); Anthony J. Sebok, Punitive Damages: From Myth to Theory, 92 IOWA L. REV. 957 (2007); Benjamin C. Zipursky, A Theory of Punitive Damages, 84 TEX. L. REV. 105 (2005). 
  4. E.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (noting that punitive damages “are not compensation for injury”). 
  5. See, e.g., Catherine M. Sharkey, Punitive Damages as Societal Damages, 113 YALE L.J. 347, 357 (2004) (describing “individual-harm paradigm” of punitive damages). 
  6. Sheila B. Scheuerman & Anthony J. Franze, Instructing Juries on Punitive Damages: Due Process Revisited After Philip Morris v. Williams, 10 U. PA. J. CONST. L. 1147, 1165-99 (surveying jury instructions on punitive damages in state and federal courts). 
  7. Id. 
  8. See e.g., Sharkey, supra note 5, at 372-89 (noting only eight jurisdictions where plaintiffs share a portion of a punitive damages award with the state). 
  9. See, e.g., Hylton, supra note 3, at 22-24; Sebok, supra note 3, at 962-1002; Zipursky, supra note 3, at 167-70. 
  10. See Scheuerman & Franze, supra note 6, at 1166 n.130 (noting that all states except New Hampshire and Nebraska allow some form of punitive damages). 
  11. LINDA L. SCHLUETER, PUNITIVE DAMAGES 1 (5th ed. 2005). 
  12. Although Professor Markel acknowledges this issue with respect to his proposed gain elimination damages, Markel, supra note 1, at 297, he does not address the issue with respect to the use of wealth generally. 
  13. Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007). 
  14. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003). 
  15. Id. 
  16. Scheuerman & Franze, supra note 6, at 1206. 
  17. BMW of N. Am., Inc., v. Gore, 517 U.S. 559, 580 (1996). 
  18. Sheila B. Scheuerman, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, 74 MO. L. REV. 103 (2009). 
  19. See id. at 122. 
  20. Markel, supra note 1, at 283 n.157. 
  21. Philip Morris USA v. Williams, 549 U.S. 346, 355 (2007). 
  22. Id. at 354-55 (”Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to damages because he or she knew that smoking was dangerous or did not rely upon the defendant’s statements to the contrary.”). 

Posted by Dan Markel on July 10, 2009 at 02:59 PM in Article Spotlight, Criminal Law, Dan Markel, Retributive Damages, Torts | Permalink | Comments (0) | TrackBack

Sunday, July 05, 2009

And Frank Easterbrook Thought the "Law of the Horse" Wasn't Fascinating?

Okay, campers.  Somebody please explain this one to me.

I decided I wanted to take at least one horseback riding lesson, because, well, I just want to.  We'll see where it goes from there.  I went up to the Bay Harbor Equestrian Club, where horses seem to live in nicer condos than most people, and I'm due to mount up this Thursday on "Nick," who is supposedly gentle on aging, "City Slicker" wannabe, never-been-on-a-horse-except-the-merry-go-round, where's the kickstand and the ignition key, what was that bubbeh said about Cossacks, rookie.

There is a big sign mounted just before you enter the riding ring (and it appears on the contract as well) that says:  Under the Michigan equine activity liability act, an equine professional is not liable for an injury to or the death of a participant in an equine activity resulting from an inherent risk of the equine activity.  Well, that's not off-putting to me, because I'm tough (I taught an upper level bar course - business associations - as a visiting prof in the fall of 2006 to returning 2Ls at Tulane who had just undergone the post-Katrina 1L year in which they stuffed an entire year into the spring and summer terms, and I lived to tell about it).  But as a sometime participant in the dialogue about corporate governance, I kind of wondered why riding instructors got a free pass when there's so much debate about the business judgment rule and good faith and all that stuff as it applies to directors (who also supposedly get a free pass).  So I looked up the statute.

The statute expressly provides that the sign and contract must contain exactly that warning.  MCLA §691.1666(3).  And, I suppose it's literally true.  But this looks like an instance in which the exception subsumes the rule.  Yup, Section 3 says "Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or the death of a participant or property damage resulting from an inherent risk of an equine activity."  MCLA §691.1663.  But when we get to §5, we see (in relevant part) that the equine professional is nevertheless liable for (a) providing faulty equipment or tack if it is the proximate cause of the injury, (b) providing a horse and failing to make sure that the participant's ability fits that particular horse, and (c), the biggest catch-all, "commit[ting] a negligent act or omission that constitutes a proximate cause of the injury, death, or damage." 

So as I read this, there's a safe harbor against liability for anything arising out of the inherent risk of the activity, which, by the definition, includes about what you would expect:  ornery animals, animals that run into each other, and how animals react when they hear loud noises.  Nevertheless, that doesn't cover all the duties of reasonable care that you'd expect the professional to have even if there were no law at all.  What else is there?  Equine law experts, what gives?  Is this somehow merely burden shifting?  What am I missing?

Posted by Jeff Lipshaw on July 5, 2009 at 09:13 PM in Torts | Permalink | Comments (7) | TrackBack

Thursday, April 23, 2009

A Casual Casebook: The Canon of American Common Law

This summer I am planning to put together a casebook that is for leisurely reading, rather than a law-school course. My tentative title is "The Canon of American Common Law." 

It is an idea of mine that started with the thought that it would be exciting to give a special award to the first-year law student with the highest combined grade-point average in the three common law courses: Contracts, Property, and Torts. A good name would be the Holmes Award. But what would be a suitable prize? A perfect token, I thought, would be a book of the classic common-law cases. I think such a book would also be nice to have available for casual students of the law – people who would like to do some exploring in the law – but who are not looking for three years of law school.

Below is my very-rough draft table of contents, along with a list of “on the bubble” cases that are deserving, but that I might leave out to keep the size of the book manageable. I would be very grateful for your comments. Do any of the cases fail to qualify as classics? Am I grievously leaving something out? Am I close to closing in on a canonical list? Or am I way off?

Contracts:
Wood v. Boynton
Webb v. McGowin
Raffles v. Wichelhaus (The Peerless Case)
Hamer v. Sidway
Lucy v. Zehmer
Wood v. Lucy, Lady Duff-Gordon
Hawkins v. McGee
Peevyhouse v. Garland Coal & Mining Co.
Hadley v. Baxendale

Property:
Ghen v. Rich
Pierson v. Post
Brown v. Voss
Hannah v. Peel
Moore v. Regents of the University of California
Vanna White v. Samsung Electronics America, Inc.
State v. Shack
Boomer v. Atlantic Cement Co.

Torts:
Vosburg v. Putney
Garratt v. Dailey
Fisher v. Carrousel Motor Hotel, Inc.
Ploof v. Putnam
Katko v. Briney
Vincent v. Lake Erie Transportation Co. 
Byrne v. Boadle
Palsgraf v. Long Island R.R. Co.
Summers v. Tice
Tarasoff v. Regents of University of California
U.S. v. Carroll Towing Co.
Vaughan v. Menlove
Rylands v. Fletcher
Escola v. Coca-Cola Bottling Co. of Fresno

On the bubble:
Dougherty v. Salt
Taylor v. Caldwell
Brown v. Kendall
I de S et ux. v. W de S
Indiana Harbor Belt. R. Co. v. American Cyanamid Co.
Lumley v. Gye
MacPherson v. Buick Motor Co.
Stone v. Bolton

You’ll notice there are a few English cases in the mix, but they are ones that, I think, are nonetheless, classics of American common law, generally because of their entrenchment in the American 1L curriculum.

Also, you’ll notice I have not included any U.S. Supreme Court cases. That’s another casual-casebook project – but a worthy one. I plan to take that up separately.

Posted by Eric E. Johnson on April 23, 2009 at 04:50 PM in Books, Property, Torts | Permalink | Comments (8) | TrackBack

Monday, December 01, 2008

Creeping consequentialism, part IV

My stint as a blogger is drawing to a close, so I ask readers' indulgence as I inflict one further set of thoughts concerning the danger of unreflective consequentialist (especially utilitarian) thinking, in both morality and law.

3.  Even when consequences matter, maximizing the net value of consequences is not always the best moral or legal approach.

From the obvious fact that we often do and often should consider the negative and positive consequences of a possible course of action, it is easy to conclude that maximizing the positive consequences relative to the negative ones is what actors typically do, and should do.  Both conclusions are false.  Raz gives the example of someone deciding whether to move to a new location for an attractive new job, even though this will make it more difficult to keep up old friendships.  It is tempting to analyze this as: "The actor puts a price on friendship, and at a certain price, he will give up the friendship for personal gain.  He will and should maximize the net value of personal gain and friendship."  But that need not be the way the actor thinks about the balance of considerations, and it certainly is not a morally attractive way to analyze the tradeoff.  For example, the actor might owe his friends some minimum of concern, even if this causes him enormous inconvenience.

In many legal contexts, "maximizing good consequences" is an especially dubious criterion.  Even if prosecuting victims of sexual assault for dressing provocatively would be an effective way to prevent such assaults, principles of just deserts, and of liberty of movement and expression, militate strongly against this solution.

4.  The supposed comparative advantage of consequentialism over nonconsequentialism is sometimes based on the false assumption that all nonconsequentialists are absolutists who never balance one set of considerations against another.

True, some retributivists, corrective justice advocates, and other nonconsequentialists offer absolutist views and deny that consequences ever matter.  Some even deny that countervailing reasons counter the absolutist force of their principles.  (Kant might have held such a view of criminal punishment, and Ernest Weinrib seems to hold such a view of corrective justice.)  But there are many, many counterexamples.

5.  The supposed "empirical" advantages of consequentialist approaches--that they are more empirically grounded and more testable than nonconsequentialist approaches--are often overstated.

True, the consequentialist is more likely than the nonconsequentialist to make testable predictions about whether a moral or legal rule is "better" than an alternative.  But we often forget that these predictions are testable only after the theory has make a controversial value judgment about which consequences matter, and how much they matter.  In criminal law, is it more important to prevent armed robbery than to prevent a rape that does not involve the use of force?  More important to prevent three premeditated murders than to prevent four negligent accidental killings?  (Or to prevent ten premature deaths by providing better health care?)

Also, nonconsequentialists do care about the empirical world, in two ways.

(a) Often they do care about consequences; but they decline to give consequences an exclusive role in justifyiing or prohibiting a course of action.

(b) The necessary conditions of a nonconsequentialist theory do consider empirical facts.  A liberal retributivist believes that criminal defendants are less to blame if they faced social conditions that made it especially difficult to avoid crime.  Most retributivists believe that some mental disorders render defendants substantially incapable of moral responsibility.

I do admit, though, that nonconsequentialists too often defend relatively abstract principles, as if the empirical facts about human psychology, genetics, and social circumstances have no bearing on moral and legal obligations.  Fortunately, some of the new work in neuroethics and in empirical law and philosophy is beginning to remedy this problem.

Posted by Ken Simons on December 1, 2008 at 12:52 PM in Criminal Law, Legal Theory, Torts | Permalink | Comments (1) | TrackBack

Saturday, November 22, 2008

Creeping consequentialism and insidious economics, part III

Thanks again to commentators for offering thoughtful responses to my last post.  Some reactions:

1. JP doubts the coherence of the distinction between consequentialism and nonconsequentialism.  And Aaron Williams suggests that calling something intrinsically wrong is "just dogma."

These are familiar and understandable concerns.  To skeptics, nonconsequentialist arguments are either ipsi dixit, and less rigorous or less fully justified than consequentialist arguments; or else disguised consequentialist arguments. 

For example, when a court says that it is unfair for a negligent victim to obtain full tort recovery, doesn’t it really mean that the negative social consequences of allowing full recovery here outweigh the positive ones?

Not necessarily.  The court might share my doubts that a legal rule limiting the recovery of negligent victims will affect their future behavior. (A jaywalking pedestrian is already ignoring a risk of self-injury; will her incentive to take care really be greater if she now also knows that, if she is run over by a tortious driver with substantial insurance, the damages she would obtain will be less?)  Yet the court might believe that it is unjust to require the injurer to pay full damages.

But doesn't "injustice" here translate into "creates (net) bad consequences"?  I don't see how it does.  To be sure, the court cares about "consequences" in a minimal sense: a legal rule permitting negligent victims full recovery is a "consequence" that the court wishes to avoid.  But that is a trivial type of consequence for our purposes: the real question is whether the justification for a rule of diminished recovery is based on consequentialist reasoning (such as utilitarian or economic analysis), or instead on other grounds.

True, specifying what is "unfair" about a victim's obtaining full recovery, or about an injurer creating unreasonable risks to others without having to pay for them, is a complex matter.  But that does not mean that the underlying justification really must be consequentialist. 

(Here is one useful overview of nonconsequentialist, and specifically deontological, analysis, clarifying how it differs from consequentialism.  And here is a useful overview of consequentialism, indicating some ways that it might accommodate deontological objections.)

But there is a wrinkle in this example, and in all cases where we evaluate whether a person's conduct is unreasonably risky.  It is especially easy to fall into the trap of assuming that any evaluation of risky conduct must be consequentialist in the deep sense, simply because we must consider the expected harms and benefits that might flow as a consequence of taking the risk.  But that assumption is unwarranted.  Shooting a gun in the direction of another person is often unjustified conduct because of the risk that it might kill, or wound, or frighten the victim.  But the reason it is unjustified could be because it is socially inefficient behavior (warranting legal sanction on a consequentialist account) or because it shows flagrant disrespect for the rights of the victim (perhaps warranting punishment, on a just deserts or retributive account; or warranting a duty to compensate if harm results, on a corrective justice or fairness account).

Put differently, the fact that possible or probable consequences of one's action are morally and legally relevant to its permissibility does not mean that permissibility is just a question of maximizing good consequences.  Another example: most agree that a right of self-defense depends on the actor's believing that an aggressor is confronting him with some threshold level of risk of harm (i.e., some probability of a bad consequence), and yet most accounts of why we have a right to self-defense are not consequentialist in the deep sense.  E.g., a nonconsequentialist account could rely on the defender's right of autonomy, or the attacker's forfeiture of his right to life.  (I have given a fuller account of this argument here.)

2.  JSD points out that "reasons" can refer either to the agent's actual motivating reasons for action, or to the normative reasons that, we might say, should have motivated the actor.  JSD says that only normative reasons explain the permissibility of an action.  Maybe.  On the other hand, among criminal law theorists there is a raging debate over whether subjective reasons affect permissibility.  If A shoots B, not knowing that B was about to attack him, is A's conduct justifiable?  Or is it only justifiable if he was subjectively acting for the right reason (self-defense) or at least with an honest belief (that B was about to attack him)?  T.M. Scanlon's new book also explores this issue from the perspective of moral philosophy.  (E.g., does the permissibility of a bombing raid that kills civilians depend on the purposes of the bomber, or of the person who planned the bombing?  Or does permissibility turn only on the objective reasons supporting the raid?)

3.  Thanks to Patrick O'Donnell for his reminder of how widely these debates over how to justify moral and legal norms extend--not only to tort law and criminal law, but also to health law, and indeed, I would say, to every moral and legal issue.  And I share his admiration for the work of Robert Goodin, who endorses a nuanced form of consequentialism for public policy decisions.

4. Is a sadistic pleasure (from driving into a crowd, say) really irrelevant to permissibility, or is it simply outweighed by other reasons?  A good question.  But many utilitarians are willing to "launder" or exclude sadistic, malicious, racist, and some other preferences, giving them no weight in their calculus.  Usually it will not matter whether we launder such preferences; for they will normally be outweighed by the bad consequences they are associated with.  But on the margin, such preferences, if not laundered, could make a difference to permissibility.  We do not permit teenage thrill-seekers to drive faster on public roads than other drivers who get no special thrill from driving fast; but shouldn't a thorough (nonlaundering) utilitarian permit the teenager to drive a bit faster, assuming that all other factors in the utilitarian calculus are the same for both sets of drivers?  To be sure, it would be impossible to accurately detect who genuinely obtained that special thrill; but quite apart from this practical problem, I believe that in principle we should, in this context, judge the thrill of speeding irrelevant to permissibility.

4.  Ohwilleke comments: If juries are given a Learned Hand instruction, in a form that asks them to apply expected costs and benefits in a utilitarian way, they are likely to ignore the instruction, and rely on their gut.  This does not surprise me.  Part of the reason for this is that most ordinary people are not straightforward utilitarians.  Their "gut" feelings of fairness often reflect nonconsequentialist principles of justice.  (But it is also true that their "gut" sometimes reflects unconscious psychological framing effects, hindsight bias, or an unrealistic assumption that if an activity or product is risky, the risk must be unjustifiable.)

Posted by Ken Simons on November 22, 2008 at 03:57 PM in Criminal Law, Legal Theory, Torts | Permalink | Comments (0) | TrackBack

Wednesday, November 19, 2008

Creeping consequentialism and insidious economics, part II

Thanks to those who posted thoughtful comments on my earlier post.  There are many reasons why the methodology that I critiqued, a comprehensive balancing of positive and negative consequences, is problematic.  And the comments pick up on a number of these.

First, not all consequences should matter (either on the question of the permissibility of primary conduct or on the question of the desirability of a legal rule).  Second, not all reasons should matter.  Third, even when consequences or reasons matter, maximizing the net value of consequences or reasons is not always the best moral or legal approach.  Fourth, the supposed comparative advantage of consequentialism over nonconsequentialism is sometimes based on the false assumption that nonconsequentialists are absolutists who never balance one set of considerations against another.  Fifth, the supposed "empirical" advantages of consequentialist approaches--that they are more empirically grounded and more testable than nonconsequentialist approaches--are sometimes overstated.

That's quite a list!  But let me get started...

1.  Not all consequences should matter.  Any plausible consequentialist approach must make value judgments.

Obviously it is not permissible for Joe to drive home at 90 m.p.h. in order to obtain the gun he needs for a bank robbery.  Bringing about an independently immoral consequence is never (or almost never?) a permissible reason for creating a risk.

Nor may Sarah drive that fast just because she wants to see the start of Obama's inauguration live on TV.  Here, though, I would not say that the consequence should not matter at all.  That beneficial consequence could justify her driving home at a safe speed rather than walking home, even though safe driving creates much greater risks than walking.  The important point: what consequences matter, and how much they matter, is itself a contestable question.  Sarah's very strong preference to see the inauguration might have very little social value.  Utilitarians differ greatly in how they define utility (as preference satisfaction, objective good, etc.), and consequentialists differ in how they define and value the relevant consequences (states of affairs? levels of welfare? promotion or nonviolation of rights, too?).  Thus, one supposed comparative advantage of consequentialism over nonconsequentialism, that it does not require difficult value choices, is, at the very least, exaggerated.

Consequences are sometimes irrelevant, and always need normative specification, not just when determining the permissibility of primary conduct, but also when determining what legal rule is desirable.

Of course, even if we embrace a thoroughly consequentialist framework, it does not follow that the legal rule should exactly mimic the utilitarian standard of primary conduct.  For example, even if the law should try to induce actors to engage in primary conduct that satisfies a utilitarian standard ("take a risk only if this maximizes the expected benefits over the expected costs"), legal liability for negligence (defined this way) sometimes will not be worth it--in light of the administrative and error costs of implementing the legal rule.  Strict liability and no liability are sometimes better means to the end.

But the deeper problems with looking only at, and at all, consequences, recur at the level of desirable legal rule, too.  For example: a rule reducing or eliminating recovery for personal injuries when victims act negligently might have no beneficial incentive effects on victims.  Yet there is a plausible nonconsequentialist reason for limiting their recovery: it is unfair to require injurers to pay full damages when victims are also at fault and causally contribute to their own harm.   And: we might conclude that certain consequences matter very little to the desirability of legal rules.  If we are trying to decide whether to require therapists to warn potential victims of serious threats made by their patients, perhaps we should ignore the harm that this rule will do to the prestige of the profession of therapy, while we should weigh heavily the risk that the rule will discourage violent patients from seeking help.

2.  Not all reasons should matter.

I agree with John Oberdiek's comment: the "just balance the competing consequences" approach seems attractive in part because this approach is easily confused with a far more compelling "just balancing the competing considerations or reasons" approach.  Why the confusion?  Perhaps the ambiguous notion of the "purpose" or "point" of a standard or rule is to blame.  Every moral standard or legal rule indeed must have a justifiable rationale.  But this does not mean that the "point" or rationale must be to bring about good consequences.  For example, some conduct might be intrinsically wrong, and some legal rules have an expressive "point".  (Why should South Carolina not fly the Confederate flag at the statehouse?  Because the state should not associate itself with its racist past.)  When we ask what the "purpose" of a moral standard or legal rule is, sometimes we fall into the unwarranted assumption that "bringing about good consequences" is the only eligible answer.

Nevertheless, not all reasons (even reasons other than achieving good consequences) should matter.  Perhaps the (actual) reason D speeds near a crowd of pedestrians is that he derives great enjoyment from seeing their horrified and fearful reactions.  That reason should be irrelevant to the moral and legal permissibility of his risky conduct.

(Some might call this reason a "consequence" of D's risky conduct, but this seems to collapse the distinction between consequentialist and nonconsequentialist approaches.  It need not be the case that D instrumentally selected speeding as an effective means to produce sadistic pleasure; rather, D might simply have been motivated by sadism, a motive that is part of why his risky conduct is impermissible.)

Put differently: everything depends on what counts as "a reason" or "a good reason" for an action.  Clearly the actor's actual reasons don't always have as much weight as she thinks they should.   Sometimes they should not count at all.  (To be continued...)

Posted by Ken Simons on November 19, 2008 at 03:11 PM in Criminal Law, Legal Theory, Torts | Permalink | Comments (6) | TrackBack