PrawfsBlawg

Disinformation & Defamation: A Loss for Veritas, A Strike for Truth?

A variety of defamation lawsuits connected to the discredited allegations of massive election fraud in the 2020 presidential election (sometimes called the "Big Lie") are proceeding to discovery. These suits not only seek to vindicate the reputations of the plaintiffs accused of participating in election fraud; they also seek to strike back against the campaign of disinformation underpinning the Big Lie.  For example, Dominion Voting Systems’ suits against Rudy Giuliani, Sidney Powell and My Pillow CEO Mike Lindell; former Overtock CEO Patrick Byrne; Newsmax; and Fox Corporation have all gotten the green light to proceed. Smartmatic, another voting systems company, is also proceeding with a number of separate defamation suits. 

Now another defamation case involving accusations of election fraud joins them, this time involving an Erie, Pennsylvania postmaster. A Pennsylvania trial court has held in Weisenbach v. Project Veritas that discovery can proceed against Project Veritas, its founder James O'Keefe, III, and postal employee Richard Hopkins. The postal employee, Hopkins, accused Erie Postmaster Robert Weisenbach of backdating mail-in ballots during the 2020 presidential election. Hopkins based his accusations, which were published by Project Veritas and O'Keefe, on a conversation he supposedly overheard between Weisenbach and another postal supervisor. After the initial publication of these accusations, Hopkins was interviewed by the Postal Service's Office of Inspector General. Hopkins recanted his accusations during the interview, but later told Project Veritas he was coerced into doing so. Despite the questionable reliability of Hopkins' accusations, Project Veritas kept publishing them, and they were picked up and repeated by a number of Trump partisans and Trump himself. Meanwhile, the accused Postmaster Weisenbach, who was actually a registered Republican and Trump voter, had to flee his home. Hopkins lost his job with the postal service, but he was able to solicit, through online crowdfunding, hundreds of thousands of dollars from Project Veritas readers. A report of the Office of Inspector General found no evidence supporting Hopkins' allegations, but Project Veritas did not retract them. Postmaster Weisenbach sued Hopkins, O'Keefe, and Project Veritas for defamation and concerted tortious activity.

Defendants filed "Preliminary Objections" in the nature of a demurrer to the Postmaster Weisenbach's complaint. The judge overruled the objections, meaning the case against defendants proceeds to discovery. 

Defendant Hopkins' first objection was jurisdictional. He contended that the Federal Tort Claims Act gives exclusive jurisdiction to federal courts for claims made against federal employees acting in the scope of their employment. In other words, Hopkins argued that he made his allegations to Veritas and O'Keefe about the Postmaster Weisenbach while acting within the scope of his federal employment. The trial judge, however, found that Plaintiff's Complaint sufficiently pleaded that Hopkins made his statements to Project Veritas outside the scope of his employment and that he "was driven by financial gain and a desire to cast doubt upon the legitimacy of the election and the integrity of his employer." The court found the complaint sufficiently alleged that Hopkins was not acting in the scope of his employment because he was not making the allegations to achieve his employers' "ultimate objective of delivering the mail, but more in the nature of a personal errand." 

Defendants' second objection went to the sufficiency of the Plaintiff's pleading of defamation and concerted tortious activity. The judge found the allegations that Plaintiff had engaged in election fraud "because he was a Trump hater" capable of a defamatory meaning. The judge's phrasing is interesting, because it is not normally defamatory to misattribute someone's political party. The court indicated that Plaintiff alleged he can prove that he is not a "Trump hater," but it is unclear whether what is defamatory in the Plaintiff's allegation is the misattribution of political party or the allegation of illicit motive for backdating mail-in ballots. Regardless, the accusation of committing election fraud was clearly capable of a defamatory meaning! The court also rejected the argument that Project Veritas' allegations were mere hyperbole uttered online in the heat of an election contest, stating that consideration of context might by appropriate at trial but is inappropriate at the pleading stage, when all reasonable inferences must be drawn in the Plaintiff's favor. 

The judges also found the Postmaster's allegations that Hopkins, Veritas, and O'Keefe "conspired" to defame him sufficient to support his substantial assistance or "aiding and abetting" claim. The court wrote: "Count III indicates a laundry list of ways in which Project Veritas and O'Keefe substantially assisted Hopkins, including through encouragement to come forward, the drafting of the affidavit, instructions on how to profit from the crowdfunding account, keeping lawyers on retainer to defend Hopkins, and consulting with Hopkins on a daily basis, all with the common goal of defaming Weisenbach." The judge refers to the this as "concerted 'character assassination,'" rather than journalistic reliance on an inside source. 

Finally, the court held that regardless of whether a Postmaster is a public official, the Plaintiff's complaint adequately pled actual malice as to all defendants. The Complaint alleged that Project Veritas drafted Hopkins' affidavit, encouraged and aided him to solicit donations through online crowdsourcing, flew him to New York to be interviewed, and got him legal counsel.  The Complaint also alleged that Project Veritas initially claimed they had "multiple sources" for their false accusations. Moreover, Project Veritas "doubled down" after Hopkins recanted his story. Even after the Postal Service Inspector General issued a report stating there was no evidence the Postmaster had engaged in backdating, Project Veritas would not retract their accusations. Thus, the judge concluded: "Taken together, these facts, if ultimately proven, could be credited as circumstantial evidence that Project Veritas and O 'Keefe fabricated evidence to bolster their story, or at least harbored serious doubts as to the truth of Hopkins' claims." The judge also stated that a jury might find actual malice if it found, consistently with Plaintiff's averments, that Project Veritas had developed a pre-conceived story line and solicited information to fit based on a desire to "erode confidence in the security of mail-in voting."  The court therefore concluded that the Postmaster's "mosaic of averments" related to Project Veritas' fabrication of evidence, deliberate avoidance of truth, and "ulterior motive for publishing" constituted sufficient facts "such that a jury could eventually conclude by clear and convincing evidence that the alleged defamatory statements were published with actual malice." The judge acknowledged that Project Veritas' arguments that "their reporting 'had to be done quickly'" in the election context would be relevant to the ultimate determination of actual malice but was not relevant at the pleading stage. 

The judge also found sufficient the Complaint's allegations as to Hopkins' actual malice. This issue was straightforward, given the allegations that Hopkins overheard and deliberately misconstrued an ambiguous conversation, recanted his initial allegations, and then benefitted financially from his tale. 

The judge concluded by acknowledging the that the Supreme Court's First Amendment decisions strike a balance between "the need for a vigorous and uninhibited press and the legitimate interest
in redressing wrongful injury." He nonetheless noted: "The constitutional deck is not all stacked to one side."  Despite being "mindful of the chill that lawsuits such as this may have on our press freedoms," the judge allowed Weisenbach's claims to withstand Defendants' demurrers, stating "For now, 'the balance between the needs of the press and the individual's claim to compensation for wrongful injury' weighs in favor of the Plaintiff."

This suit is being brought on Weisenbach's behalf by Protect Democracy, which has a press release about the case here. 

 

 

Parler v. Amazon Web Services: Defamation & the Promotion of Violence in Social Media

Parler v. Amazon Web Services presents some intriguing issues concerning the role of social media in fomenting violence, the market power of Amazon and its web services to suppress speech businesses, and the continued controversy over who is and who is not a public figure. See Parler v. Amazon, Complaint, CASE #: 21-2-02856-6 SEA (Sup. Ct. Wash., Mar. 2, 2021); Parler v. Amazon Web Services, CASE NO. 2:21-cv-0031-BJR, Order Denying Motion for Preliminary Injunction (W.D. Wash. Jan 21, 2021).

Amazon Web Services indefinitely suspended the social media company Parler from its site a few days after the riots at the U.S. Capitol on January 6, contending that “Parler was used to incite, organize, and coordinate the Janary 6 attack on the U.S. Capitol.”

Shortly after being suspended, Parler sought an injunction against AWS in federal district court in the state of Washington. Parler, which describes itself as a “conservative microblogging alternative and competitor to Twitter” and Facebook, asserted that AWS was using its market power to disable a potential competitor and claimed that AWS had engaged in conspiracy in restraint of trade, breach of contract, and tortious interference with business expectancy. AWS countered that Parler’s inadequate moderation of its site violated AWS’s Acceptable Use Policy, which prohibits “illegal, harmful, or offensive” use or content. AWS also contended that Parler was in breach of its Customer Service Agreement, which justified AWS in suspending Parler. The federal district court denied Parler’s motion, finding that Parler had failed to show a likelihood of success on the merits of its claim. The judge concluded that Parler supplied no evidence of any conspiracy in restraint of trade, and Parler’s breach of its agreement with AWS and the Acceptable Use Policy made Parler’s breach of contract suit unlikely to succeed. Similarly, Parler’s breach also made its tortious interference claim weak. Evaluating the balance of hardships in the case, the court stated: “AWS has convincingly argued that forcing it to host Parler’s users’ violent content would interfere with AWS’s ability to prevent its services from being used to promote—and, as the events of January 6, 2021 have demonstrated, even cause—violence.” The court further held that the public interest did not support granting an injunction forcing AWS to host the incendiary speech that some of Parler’s users engaged in, opining that the riots at the Capitol “was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection.”

Parler was off the internet for more than a month while it tried to find replacement web services. On March 2nd, 2021 Parler filed suit against Amazon Web Services and Amazon.com in state court in Washington. In its complaint, Parler insisted that AWS’s suspension was motivated by a desire to eliminate the threat Parler poses to “surveillance capitalism” because it does not sell user data. The complaint recounts instances of violence-promoting content appearing on Amazon, Twitter and other social media sites, suggesting that AWS’s suspension of Parler with less than 30 hours’ notice was based on concerns other than its content moderation. Further, Parler alleges, implausibly and without support, that AWS directed hackers to Parler’s backup datacenters and began secretly selling Parler’s user data.

Parler brought various claims against AWS, including deceptive trade practices, defamation, breach of contract, breach of fiduciary duty, tortious interference with contract or business expectancy, unfair competition, negligence, and other claims (for a total of fourteen claims). The suit seeks trebled and exemplary damages and attorneys’ fees.
The basis for the defamation claim was an email AWS allegedly leaked to BuzzFeed that stated that AWS was indefinitely suspending Parler because it was unable or unwilling “to remove content that encourages or incites violence against others.” Parler asserts that AWS made this claim, despite being aware that Parler had a history of removing problematic content and was testing a new artificial intelligence system to moderate problematic content. Parler asserts that it is not public figure and its content moderation policies were not a matter of public concern, but even if it were, AWS acted with knowledge or reckless disregard of the falsity of its allegations that Parler had been lax in moderating troubling content. AWS complained that this defamation cost it millions in lost business.

Is Parler a public figure? While it is true that a defendant cannot bootstrap a plaintiff into becoming a public figure by virtue of the defendant’s defamatory allegation, Parler was in the public eye based on its business practices before AWS leaked the email. Indeed, a Washington Post article published the day before the Capitol riots on January 6 stated that “[t]alk of guns and potential violence is rife on . . . the conservative social media site Parler.” Parler suggests that it is no more responsible than other social media for allowing violent content on its site linked to the events of January 6th. If this allegation its true, it would lend credence to Parler’s claim that the blame for the riots has been falsely pinned on its site; however, Parler did not sue the media linking its site to the riots but instead sued AWS. AWS may assert that the leaked email about Parler is technically true: Parler was unable to keep up with moderating violence-promoting content. Moreover, if AWS relied on credible news sources to conclude that Parler was being used to foment violence, it would be hard for Parler to prove that AWS knew or recklessly disregarded the falsity of AWS’s attribution of inadequate moderation to Parler. On a side note, it seems at least as likely that AWS booted Parler for damaging AWS’s own reputation as it does that AWS booted Parler for anti-competitive reasons. Regardless, if this defamation action helps uncover whether Parler’s lax content moderation was more responsible than that of other social media for the riots of January 6, it will be doing a public service.

Tucker Carlson: Not to be Treated as Making Factual Statements (in Former Model's Defamation Case)

In McDougal v. Fox News Network, 2020 WL 5731954 (Sept. 24, 2020), Fox News essentially argued that Tucker Carlson was not to be taken seriously, and a federal judge agreed. Here's the background to the court's dismissal in the defamation case brought by former actor-model Karen McDougal.

National Enquirer CEO David Pecker, on behalf of parent company American Media, Inc., purchased the rights to a story about an alleged 2006-2007 affair between former model and actress Karen McDougal and Donald Trump. Trump’s attorney Michael Cohen then purchased the rights from American Media, Inc. This purchase was allegedly a “catch and kill” operation—that is, the Enquirer’s parent company American Media, Inc. bought the rights to McDougal’s story to prevent her from revealing damaging information about Donald Trump. News of this catch and kill operation (and another similar one) came out in the 2018 investigation of Michael Cohen on charges of violation of campaign finance law. Cohen ultimately pleaded guilty.

In the meantime, Fox News host Tucker Carlson aired a segment on December 10, 2018, shortly before Michael Cohen’s sentencing, in which he described the conduct of Karen McDougal and the other woman who had accused Trump of infidelity as follows:  “Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money. Now, that sounds like a classic case of extortion.”

The district court held that Carlson’s statements were non-actionable hyperbole that no reasonable viewer would treat as factual. The court reached this conclusion by analogizing the case to a series of prior decisions in which courts had treated similar statements as exaggerations for effect rather than accusations of crime, especially when the statements involved contested political disputes. The court also interpreted the “extortion” statement in the context of Carlson’s show, “Tucker Carlson Tonight.” The court noted that the stated purpose of the show is to “challenge[ ] political correctness and media bias,” and its “general tenor” tips viewers off that Carlson “is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.”  The court even suggested that the commentary could be viewed as “bloviating” and further noted Carlson’s disclaimer that he was assuming what Michael Cohen said was true “for the sake of argument,” which would put his listeners on notice that they were not dealing with “a sober factual report.” Finally, the court posits “this overheated rhetoric is precisely the kind of pitched commentary that one expects when tuning in to talk shows like Tucker Carlson Tonight, with pundits debating the latest political controversies.” The court therefore held that the statements were “not factual representations and, therefore, cannot give rise to a claim for defamation.”

As an alternate basis for dismissal, the court also held that McDougal, a public figure, had failed to plead Carlson made his statements with reckless disregard for their falsity (that is, with actual malice). Allegations that Carlson was personally and politically biased in favor of Trump—as allegedly evidenced by Trump’s “47 Tweets” in support of Carlson--were insufficient grounds from which to infer actual malice.

[For a somewhat similar case suggesting Rachel Maddow’s “colorful commentary” on a news story was not actionable as defamation based in part on the fact that reasonable viewers would “expect her to use subjective language that comports with her political opinions” Herring Networks, Inc. v. Maddow, 445 F. Supp.3d 1042 (S.D. Cal. 2020)]. [This last part was added after my original post: I found the Maddow case a few hours later while doing further research on recent defamation cases.--LL]

Upcoming 2020 Victor Schwartz Lecture in Torts: Modernizing Defamation Law

I am honored to be giving the 2020 Victor Schwartz Lecture in Torts at the University of Cincinnati College of Law on October 6. Here's my topic: 

The common law tort of defamation acquired its distinctive shape and labyrinthine doctrines over the course of the last five centuries. In this century, the tort is being confronted with its biggest challenge since the invention of the printing press, namely how can defamation law protect reputation and free expression in a world where social media invite billions of people to impulsively comment on every conceivable topic from devices they carry in their pockets, all while creating a record of their carelessly chosen words? At this juncture in defamation’s long history, the American Law Institute has appointed reporters Robert Post and Lyrissa Lidsky (that would be me), along with a stellar panel of advisers, to “restate” the tort of defamation. The launching of this project creates an opportunity to reconsider how defamation law can accommodate free speech and reputation in a society that weights them very differently than Sixteenth Century England or even the United States of the late 1970s when the Restatement (Second) of Torts: Defamation was completed. This presentation (and a forthcoming essay) will examine and critique recent trends in defamation cases to scry what they portend for modernizing defamation law for the digital age.

Sandmann: Bringing the Dream

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann's defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman's supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage. The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them. 

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits. 

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.  On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy. Conservative partisans have attributed the media's rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann's settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that's a story for another day, Devin Nunes).  

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what's required to prove actual malice in this case, but another is this: under what conditions does a person who "goes viral" by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child? The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann's cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards. 

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court's cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy. For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader's Digest Ass'n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.  Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.  Even examining Sandmann's actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do "enough" to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court. 

A better, though still problematic, argument is that Sandmann and other "victims" of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court's 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: "Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own."  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int’l Magazine, 1985; Schultz v. Readers Digest Ass’n, 1979)  One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  "[t]here was indisputably a public controversy" in which "Dameron played a central role."  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it "rest[s] involuntary public figure status upon ‘sheer bad luck.’"  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a "significant public controversy" in which the plaintiff was a "central figure," and (2) whether the plaintiff "assumed the risk of publicity."  A plaintiff assumes the risk of publicity by "pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise."  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must "retain[ ] public figure status at the time of the alleged defamation."  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual’s involvement in a public controversy.  

Sandmann's attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him. 

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about. 

Liability of Doctors Accepting Unvaccinated Patients

Over the past few years, discussions on whether a doctor can, or should, be liable if she accepts unvaccinated patients and they infect other patients with a preventable disease have arisen repeatedly. This is not a theoretical possibility. For example, in 2008, in San Diego, an unvaccinated child returning from Switzerland with measles infected several children, among them four patients in his pediatrician’s office, three of them infants too young to vaccinate. One of those infants had to be hospitalized.

I have heard arguments that doctors who accept unvaccinated patient should be liable in torts if this eminently foreseeable result materializes. I disagree, and will explain why.

Behind the question of tort liability is the question of whether it is reasonable for doctors to accept unvaccinated patients to their practice (I’m intentionally glossing over professional liability or not, to keep this short, but happy to address that in the comments). Unvaccinated patients are at substantially higher riskthan vaccinated ones to contract and transmit a preventable disease. But the question is not simple, and is a matter of intense debatewithin the profession.

On one hand, accepting unvaccinated patients creates a risk that they will bring in an infectious disease and infect others. In one tragic example in Germany, two babies infected in that scenario died from a fatal measles complicationslowly, in agony, years later. In addition, doctors point out that if patients do not trust doctors enough to accept vaccines, the doctor/patient relationship is already flawed. While blind trust is likely neither necessary nor desirable, rejecting something as basic as vaccines implies very deep mistrust that can interfere with good treatment. Finally, if the goal is to provide the best medical care to the child, not vaccinating means the doctor is failing her duty – and if the threat of dismissal from the doctor’s office pressures parents into vaccinating, goes the argument, the child is better served.

On the other hand, rejecting unvaccinated patients can mean – depending on the area - leaving unvaccinated children without medical care. Not only is this punishing them for their parents’ error, these children may need medical care more than others. It also means giving up on the chance to change those parents’ minds – and risking that they may end up in practices that are friendly to non-vaccinating, where the higher rate of unprotected children would increase the risk of outbreaks.

In response to the risk of infection in the waiting room, some doctors point out that it exists from diseases that are not vaccine preventable, too, and refusing unvaccinated patient would not eliminate it (though it will reduce the risk from preventable diseases). A better solution to the risk is separating out sick and well waiting rooms, they argue.

For years, the American Academy of Pediatrics opposed dismissing unvaccinated patients. But in August 2016 it changed course, giving what some perceive as limited approvalto pediatricians who choose to dismiss non-vaccinating patients if it’s done as a last resort.

What about tort liability? The question is whether it is malpractice – or general negligence – to have unvaccinated patients. In both case, I think the answer should be no. There are simply too many good arguments supporting seeing unvaccinated patients to say that seeing them is unreasonable. There are very valid arguments for not seeing them, and I do not think there is a reasonable claim that a doctor that refuses such patients is acting unethically or should be subject to liability, either. But there are also valid reasons to keep accepting unvaccinated patients.  

The position of the professional association also supports both views. This is a case where there are, in fact, two schools in the profession, both have merit, and neither position is unreasonable. In some circumstances, doctors accepting unvaccinated patients may be negligent in other ways. For example, maybe knowing a patient is unvaccinated is a reason to keep such patients, when ill, especially away from others, or in some circumstances see them in isolation. But just the decision to accept unvaccinated patients should not, in itself, lead to liability.

I do think there is a reasonable case for liability in other circumstances. For example, there are strong grounds to hold doctors who recommend foregoing vaccinating without good medical reasons liable to their patients, if patients get a preventable disease, and to third parties they may infect. There are also good grounds to hold parents who do not vaccinate liable to third parties (or their children) in the right circumstances – and the usual rule that there’s no duty to act should not be a barrier.

But for the reasons above, I do not think accepting non-vaccinating patients should, by itself, lead to liability.

I would be curious to hear other views/positions.

Why We Need to Talk about Trump & Press Freedom

On Wednesday, January 5, AALS2017 kicks off with a panel on Trump & Freedom of the Press in the Plaza Room Lobby Level of the Hilton Union Square at 8:30 am.

RonNell Andersen Jones (Utah), Amy Gajda (Tulane), Sonja West (Georgia), Erwin Chemerinsky (UCI), John Diaz of the San Francisco Chronicle, and I will be discussing what the Trump presidency might bode for press freedom. In preparation for the panel, I thought I'd share with you the research I've done suggesting why this discussion is necessary and timely. In short, here are the reasons that the media (and those of us who value the role they play in our democracy) have legitimate causes for concern that press freedom might be curtailed during the Trump Administration. 

First, Donald Trump has shown himself to be remarkably thin-skinned about unflattering press coverage. Throughout his campaign and after, he has publicly berated  Saturday Night Live, the New York Times,  and many, many other news organizations and individual journalists (too many to enumerate here, as is evident from this list compiled by MediaMatters.org) for criticizing him or simply for covering him.  Shortly after the election, he called television news anchors and executives to Trump Tower  to browbeat them for their "dishonest" and "short sighted" and "outrageous" election coverage. He singled out CNN and NBC as the "worst," calling CNN "liars." All of this seems a bit churlish from a candidate who got at least $2 billion worth of free air time from these same media actors and did not hold a press conference from July 2016 until the end of December.  Nonetheless, it suggests that the relationship between this President and the press will not be a smooth one. 

However, more alarming than Trump's propensity to take offense at even the most innocuous press criticisms was his propensity to incite supporters against the press during his campain. Certainly other elected officials have villified and will doubtlessly continue to villify the press to score political points (think VP Spiro Agnew's "nattering nabobs of negativism").  However, Trump turned up the heat beyond anything previously seen. As Margaret Sullivan wrote in The Washington Post, "Donald Trump made hatred of the media the centerpiece of his campaign. Journalists were just cogs in a corporate machine, part of the rigged system." During his campaign events, he restricted press to a "pen" and then inflamed his supporters by calling them dishonest and accusing them of rigging the election and inventing stories to discredit him. His supporters often responded with boos, ugly gestures, and chants of "liars", "assholes," "CNN sucks!," and worse, causing some reporters to fear for their safety.

Trump further displayed a lack of appreciation (or perhaps contempt?) for pool reporters by denying them traditional avenues of access. Unlike previous candidates, Trump never allowed the press on his plane. He also revoked credentials  or denied credentials of those who garnered his special ire.  Although Trump has promised to have a "normal" press pool as president, he's shown a willingness since being elected to deny pool coverage of important meetings and to ditch his press pool at will. He's also stated he may change the format of press briefings, in an as yet unspecified way.  On a somewhat more positive note, he has  granted interviews to several outlets since his election, including The Today Show, 60 Minutes, The New York Times, The Wall Street Journal, and Time Magazine, though his anti-media rhetoric and disrespect for traditional channels of access cast doubt on whether this trend will continue once he's in office.

Other causes for concern about Trump's respect for press freedom abound. During the campaign, he promised, if elected, to "open up libel laws" to make it easier for public figures to sue the press, a threat that betrays a fundamental misunderstanding of libel law and constitutional constraints on the President. More alarmingly, Trump has shown a propensity to threaten lawsuits against journalists or actually sue over both innocuous criticisms and normal news coverage. As an ABA report revealed, "Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics. But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court." Defending libel suits is expensive, even if one ultimately wins; thus, the mere prospect of being sued for libel can have a chilling effect on reporting. In fact, there's evidence that Trump's reputation as a "libel bully' has already chilled some speakers and is likely to chill others.  

Beyond that, Trump has praised ruthless dictators who have trampled press freedoms and targeted journalists for assassination. In fact, when asked if his praise of Vladimir Putin was tempered by Russia's killing of journalists, Trump said no:  “He’s running his country, and at least he’s a leader, unlike what we have in this country.” Such rhetoric would be chilling, even in isolation, but of course it is not in isolation.

Meanwhile, Trump comes into office on the heels of a President who has already eroded the press's ability to perform its watchdog role by aggressively pursuing leaks investigation against government employees, subpoenaing reporters to reveal confidential sources, and monitoring telephone and email records of journalists in service of leaks investigation. As Dana Priest of the Washington Post stated: “Obama’s attorney general repeatedly allowed the F.B.I. to use intrusive measures against reporters more often than any time in recent memory. The moral obstacles have been cleared for Trump’s attorney general to go even further, to forget that it’s a free press that has distinguished us from other countries, and to try to silence dissent by silencing an institution whose job is to give voice to dissent.” President-Elect Trump has not signaled whether he will continue such practices, but the fact that his former campaign manager  said that the executive editor of the New York Times should be in jail for publishing Trump's tax returns doesn't exactly inspire confidence. Trump also has not signaled how executive agencies within his administration will be directed to handle Freedom of Information Act requests, and although an RNC spokesman has praised the transparency of the Trump transition, Trump's previous treatment of the press, together with his refusal to release his tax returns, certainly gives reason for doubt on this score as well.

In addition to these causes for concern, the media have their own issues that may hamper their ability to perform their watchdog role during the Trump presidency. Trump is a genius at newsjacking. He is able to set the agenda of the media with his tweets and drown out negative coverage. Trump's "Hamilton" tweet, for example, garnered more eyeballs than the $25 million settlement of a fraud suit against Trump University. Meanwhile, the struggle to maintain press freedoms comes at a time when the public's views toward the media are increasingly hostile, many segments of the media face revenue challenges, and fake news undermines the role of legitimate journalism in furthering democratic self-governance. [Not to mention that "post-truth" was the OED's 2016 word of the year.] These issues, and many more, will give the Trump & Press Freedom panel ample fodder for discussion. I hope you can join us. 

Sharing Economy Symposium

To wrap up this week's posts on sharing economy topics, I wanted to highlight an upcoming sharing economy symposium taking place in February 2017 and hosted by the University of Hawaii Law Review. I’m excited to be participating on a panel dealing with ridesharing services, where I'll focus on tort liability. Other participants include Erez Aloni of Whittier Law School, Nancy Leong of University of Denver Sturm College of Law, Timothy Burr, Jr., Senior Public Policy Manager of Lyft, and Christina Sandefur, Executive Vice President of the Goldwater Institute. Additional participants will be announced here.

Tort Law and the Sharing Economy

Six weeks ago, a UK employment tribunal declared that Uber drivers are employees. A few months before that, Uber settled two class action lawsuits in the US in order to avoid a ruling on whether drivers can remain independent contractors. And Uber regularly takes the position that it is not subject to the regulations that apply to taxi services. Sharing economy companies go to great lengths to shun traditional business models (and the legal and regulatory structures that come along with them). While regulation of the sharing economy remains a major issue, tort law is an important complementary concept – and the subject of my new article, Sharing Tort Liability in the New Sharing Economy.

Because sharing economy companies often avoid traditional employment relationships, they complicate the analysis under some long-standing tort law doctrine, particularly when a tort victim is negligently harmed by a worker in the gig economy. But traditional tort law concepts are already well-equipped to adapt to this new world of ad-hoc transactions. For ridesharing in particular, liability challenges may be solved with vicarious liability doctrines – especially joint enterprise liability. An Uber driver, for example, may be unable to bear the brunt of liability when a passenger, pedestrian, or other driver is negligently harmed. In the traditional economy, vicarious liability would solve the under-compensation problem. But sharing economy companies purport to merely “connect” providers with customers, thereby skirting the traditional relationships that would give rise to liability. 

Nonetheless, vicarious liability may still attach. First, respondeat superior applies if Uber drivers are deemed employees. Even if drivers are independent contractors, vicarious liability may still attach, such as when they are engaged in a non-delegable duty (like safety). But, at the very least, courts should consider joint enterprise liability: sharing economy companies embark on a joint venture with service providers for a shared profit motive, which could amount to a joint enterprise for the purposes of vicarious liability.

Regulatory challenges are certainly at the forefront of legal issues surrounding the sharing economy, but retrospective tort remedies can help minimize harm and prevent over-regulation. Further, tort law may prove even more important under an administration that vows to cut regulations across the board. Thus, a sound approach to dealing with the sharing economy involves a look at both tort law and regulation and, in my article, I suggest that vicarious liability principles be used liberally to ensure fairness and adequate compensation. By clarifying liability issues under tort law, we can enable policymakers to proceed with a holistic understanding of how retrospective tort remedies already address some of the unique issues in the sharing economy.

State v. Dharun Ravi: The Appeal

In my last post, I summarized some of the basic facts of the Tyler Clementi/Dharun Ravi story. After he was convicted on all counts, Mr. Ravi appealed his convictions. He made various arguments, but his appeal was given an enormous boost by the 2015 New Jersey Supreme Court decision in State v. Pomianek, 221 N.J. 66 (2015), which declared unconstitutional a key statute upon which Mr. Ravi's conviction was based.

N.J.S.A 2C:16-1(a)(3) states:

A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [certain specified] offense[s] ... under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (emphasis added).

This provision was the basis for 4 of the 15 counts in the State's case against Mr. Ravi (Ravi, 2-4). Related evidence also permeated the prosecution's case, including counsel's moving closing statement (45-48). But on March 17, 2015, in Pomianek, the New Jersey Supreme Court declared the provision unconstitutional: it was void for vagueness in violation of the Fourteenth Amendment.

Pomianek involved several workers at the Gloucester Township Department of Public Works. The defendants, all white, and the victim, a person of color, were assigned to an old garage that Public Works used for storage. Inside that garage was a large metal cage that could be padlocked closed. The workers had been "horsing around" in the garage, including in and near the cage. As part of a ruse, one of the defendants approached the victim and told him that their supervisor needed some supplies from the cage. Once the victim was inside, the defendant closed the cage door and locked it. A number of workers started laughing, and one of the defendants said, "Oh, you see, you throw a banana in the cage and he goes right in, which triggered more laughter among the men." The victim felt there were racial overtones to this statement. Another worker unlocked the cage door within 3 to 5 minutes. The victim testified that he felt "humiliated and embarrassed." After the victim was released, the defendant was heard saying, "You all right, buddy? We were just joking around."

The defendants in Pomianek were charged, among other things, with bias intimidation in violation of 2c:16-1(a)(3). The jury convicted them on those counts because, considering the racist overtones of the "banana" comment, the victim could reasonably believe that the act was committed on the basis of race.

The problem with this provision was that unlike every other bias crime statute in the country, this law was based on the state of mind of the victim, not the intent of the defendant. The New Jersey Supreme Court concluded that this violated the Fourteenth Amendment. A core element of due process is that a law must clearly define forbidden conduct so that individuals can tailor their behavior to conform with the law. Section (1)(a)(3) did not do that. By hinging guilt on what is going on in the victim's mind as opposed to the defendant's mind, the statute does not put a "reasonably intelligent person on notice when he is crossing a proscribed line."

Based on Pomianek, any part of Mr. Ravi's conviction based exclusively on (a)(1)(3) was void as a matter of law. But, according to the Appellate Division, evidence of Tyler's perception of the events was a "pillar" of the prosecution's case (41). It came up often, including in the closing statement. In fact, it came up so often that it "render[ed] any attempt to salvage the convictions under the remaining charges futile." It therefore was "unreasonable to expect a rational juror to remain unaffected by this evidence" (6). Evidence of Tyler's state of mind was prejudicial and not harmless beyond a reasonable doubt. As such, the court overturned Mr. Ravi's conviction in its entirety.

I am not so easily convinced. The Fourteenth Amendment does not protect people from punishment enhancement based on their indifference and willful ignorance to the plight of their victims. "Bias" should be understood as more than just stating, "I hate gays." But let's assume that Pomianek is correctly decided. The statute was poorly worded; the trial judge noted that. And it is hard to imagine convicting someone of a bias crime without any evidence of bias. There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.

Though we were all shocked by Tyler's suicide, it is not clear that turning to the criminal law is always the right answer. The New Jersey legislature had good intentions: it wanted to recognize that the pain of the victim, the monstrosity of the attacker, and the social context in which attacks occur matter. But maybe those considerations are best left for tort law. Clearly, evidence of the gravity of the harm and the homophobic context of Mr. Ravi's conduct could be important in a civil case against him.

Stay tuned for more! 

 

Copyright Doctrine: IPSC2016

IPSC - Breakout Session II - Copyright Doctrine

Summaries and discussion below the break. If I didn't know the questioner, I didn't guess. If you asked a question and I missed you, feel free to identify yourself in the comments.

Copyright State of Mind – Edward Lee

Reforming Infringement – Abraham Bell & Gideon Parchomovsky

Authorship and Audience Appeal – Tim McFarlin

Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik

 Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden

 

Copyright State of Mind – Edward Lee

Offering a descriptive taxonomy about how state of mind is used in copyright law.

2d Circuit in Prince v. Cariou: transformative use, the first factor in the fair use test: objective state of mind

9th Circuit in Lenz v. Universal: DMCA 512(f) violation: subjective state of mind

State of mind re: copyright liability - it is often said that copyright infringement strict liability. This differs from criminal law, where mens rea (criminal intent) typically matters.

If we look beyond liability, state of mind figures prominently in many different copyright doctrine. For example, authorship, including intent to be joint authors (both objective indicia and subjective intent). We haven't considered the intent of the lawsuit - are we protecting copyright or privacy, for example, but Judge McKeown on the Ninth Circuit recently argued we should. For ISPs, we have the red flag cases which have both subjective and objective elements.

Dave Fagundes: Property also deals with intent. Adverse possession and first possession have a whole mess of intent-related doctrines. Perhaps the ownership intent doctrines might help conceptualize these issues.

Pam Samuelson: Think about remedies as well. Innocent infringement, as well as willful infringement. It can play out also in relation to injunctive relief. Plaintiff's state of mind might matter with regard to obtaining injunctive relief. See also the new Kirtsaeng attorneys' fee case.

Ed Lee: Perhaps I should also look at the Supreme Court's patent cases.

Matthew Sag: If there is a universal theory about what state of mind should be for any of these doctrines, is there a logic that connects us to why we have copyright in the first place?

Ed Lee: I'm skeptical of a uniform theory. See, for instance, DMCA which is a negotiation between stakeholders.

Dmitry Karshtedt: My understanding is that civil liability more objective than subjective, while for criminal liability, intent is more subjective. and should we see the same play out in copyright?

 

Reforming Infringement – Abraham Bell & Gideon Parchomovsky

We have an immodest goal of reforming remedies in copyright, more systematically including culpability in the analysis. Under the reformed regime, we would treat inadvertent infringement (where the infringer was unaware and couldn't reasonable become aware) and willful infringement (blatant disregard of copyright law) different from standard infringements (with a reasonable risk assumption).

The close cases are in the middle category of standard infringement. The default is standard infringement. Compensatory damages should be awarded in every case. Injunctions would be rare and no restitution for lost profits awarded in the inadvertent cases. We are trying to preserve statutory damages only for cases where it is difficult to prove actual damages. So the defendant in the standard infringement case could argue that statutory damages exceed actual damages.

Why bring it in? 1) Information forcing - incentivize owners of copyright to clarify ownership and terms of licenses. 2) Avoid overdeterrence of follow-on creation. 3) Increase fairness.

Ted Sichelman: In the patent context, we worry about transaction / licensing costs. It may matter for copyright as well. For example, if the work is an orphan work, why should I face huge potential liability?

Abraham: The inquiry should account for the difficulty of finding the copyright owner.

Ian Ayres: Does any kind of negligence go to willfulness because there is no reasonable basis for non-infringement?

Abraham: It's not clear how we would calculate such a thing: What is a reasonable risk, re: evaluation of risk of law. We're treating standard as a residual category. But we are still arguing about this point.

Pam Samuelson: Have you been thinking about remedies re: secondary liability? The framework appears to deal with direct liability, but secondary liability cases may be the more complicated cases, where we wonder how culpable is the platform? The statute tries to grapple with through 512.

Abraham: We didn't think about secondary liability until we talked with Lisa Ramsey last week.

Pam: Secondary liability is the area that needs the most reform!

Abraham: We'll have to bracket this right now. Secondary seems to follow primary, and we don't have a better model right now.

Shyam Balganesh: How much of your proposal unravels other parts of the system? Are you accounting for systemic effects? For example, if information forcing matters, why not deal with that through a heightened notice requirement? Do you think infringement is independently problematic, or is it the best place for achieving information forcing goals?

Abraham: Unlike information forcing, overdeterrence is harder to fix with levers in other places. This isn't the only way to accomplish these goals, and we don't claim that, or that it's the best way.

Jerry Liu: Is it necessary, from an overdeterrence standpoint, to distinguish between willful and standard infringement? Google Books was arguably willful infringement, but it was also efficient infringement.

Abraham: I think Google probably was a standard infringer, from a culpability standpoint. They took a fair use gamble, and they won.

Jerry: How about the MP3.com case?

Abraham: You can make an argument that format change / transferring medium is fair use, so standard.

 

Authorship and Audience Appeal – Tim McFarlin

Recent projects have looked at disputes between Chuck Berry and his piano player, and Orson Welles and a script-writer. In both cases, questions of audience appeal have been nagging at me, and I want to explore that further.

Can we better use audience appeal in the infringement context than the authorship context?

Audience appeal, from the Aalmuhammed v. Lee case (9th Cir 2000), is an important factor. Audience appeal turns on both contributions, (by potential coauthors), but "the share of each in the success cannot be appraised," citing Learned Hand.  If that's right, and we can't evaluate audience appeal in the authorship context, is it a junk factor? If we can, how do we do it? And if we can, should we?

What do courts do with audience appeal? Mentioned in 21 cases, but 9 ignored it in reaching the decision. 9 found it weighed in favor of joint authorship, and 3 found it weighed against joint authorship?

How do we appraise it? If we find evidence of audience appeal from both contributions, at what point is the smaller contribution too small? 60/40?

Might audience appeal help with questions of infringement, for example in the Taurus / Led Zepellin case? Might we consider the appeal of Stairway to Heaven v. the appeal of Spirit's Taurus as a reason for public interest to weigh against injunctive relief? See Abend v. MCA (9th Cir. 1998).

Jake Linford: Perhaps talk to Paul Heald about his research on how musicians copy from each other. There is some potential danger in using audience appeal to decide infringement, injunctive relief, or damages, because that leads to a copyright regime where the party who is best-placed to take advantage of the works gets to use and make money with it, even if that party doesn't pay.

Peter DiCola: You are right to challenge Learned Hand. Audience appeal can be appraised. The question is whether it can be appraised convincingly. The part about in general where does audience appeal matter may be too general, and may not be at the heart of your paper.

Pam Samuelson: Some works have audience appeal, some don't, and it might not be relevant for unconventional expressive works For example, the internal design of computer programs are not appealing. You may need to unpack works where appeal matters and where it doesn't.

Jani McCutcheon: Watch where trademark and copyright protection overlap on this issue.

 

Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik

This paper is inspired by two recent controversies surrounding Harper Lee and To Kill a Mockingbird: the appearance of Go Set a Watchmen, and the decision by her estate to pull the student-priced paperback from the marketplace. Both of these stories are murky. Lee may not have been in her right mind when Go Set a Watchmen was released, and the announcement from Hachette about the student-priced paperback suggest both the estate and Lee wanted the low-priced version discontinued.

Should motivations of the author or the heir matter for copyright decisions? Eva argues that it should. The law should be tougher on post-death copyright successors. We should treat them more like stewards, and require some duties on their part. If copyright ownership limits post-mordem access, heirs should be encouraged to take care.

What might stewardship mean? It has its origins in theology, traditionally applied to land. It's taken on a secular cast today. Stewardship suggests that the owner has duties as well as rights. Stewardship has something in common with commons advocates - copyright should be forward looking, and concerned about future generations. Bobbi Kwall has argued that authors are stewards, and I think it should be applied to heirs as well. Unlike authors, publishers, and distributors who did work with the work, stewardships step in as recipients of a gift, and perhaps they should step into some duties.

Application: Eva doesn't argue for a statutory change, and it's not clear stewardship would change the analysis of the Harper Lee issues, but stewardship could change fair use analysis, for example with biographers and scholars. When the heir has the ownership of a sole copy, stewardship could matter [JL: unclear to me how]. Perhaps stewardship could allow authors to better shape stewardship of their legacy. [JL: Doesn't the termination provision already exclude wills?]

Brad Greenberg: A potential disconnect between assignments and statutory heirs of termination rights. What if the author's assignee is a good steward, and the children are poor heirs, from a stewardship standpoint? Is Stewart v. Abend's analysis of the renewal right a problem for your analysis? Should we also apply stewardship duties to non-author copyright owners?

Eva: To my mind, a post-death successor gains enhanced prominence in managing the copyright after death, and I'm trying to say something specific to that group of copyright owners.

Dave Fagundes: I like the idea of stewardship, but it's still inchoate, and I can't tell to whom is the steward responsible? The work? The public? The author's intent? What if authors wanted their families to be taken care of?

Eva: You could also add the author's legacy, which may differ from author's intent. [JL: This reminds me of Mira Sundara Rajan's project from the first breakout session.] 

Ed Lee: Perhaps the moral rights of integrity literature could also be helpful, which is more about legacy than children.

Giancarlo Frosio: French case 2007 might be helpful. See also Kant.

 

Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden

Scholars seem to distrust claims by estates and heirs, but the tend to succeed in advocating for statutory change, and winning cases before the courts. But I found some recent claims that sound in mourning and grief that perhaps we shouldn't discount in copyright and right of publicity cases.

IP Narratives that are traditionally invoked:

1) Anti-exploitation. Randy California was badgered for years to sue Jimmy Page, but his heirs stepped in to claim some recognition for him.

2) Family privacy. James Joyce / J.D. Salinger estates

3) Purity narratives. Limit downstream uses, especially those that raise potential sexual purity. 

4) Inheritance. It's all that the author left to the family.

5) Custody (like child custody). Children as caretakers of the work.

Copyright scholarship tends to ignore these types of claims, but we see them invoked successfully in cases like family businesses, bodily disposition, organs and genetic information, digital assets, like email, and succession laws dealing with omitted family members.

What would happen if IP took these interests seriously? Perhaps there is a desire for shared mourning and grief, both by authors' heir and fans. Fans circulate and disseminate broadly as part of public mourning, but mourning families look inward, seek silence, achieve some semblance of privacy. These interests might not be as irrational as we might think.

One solution might be to bring issues of estate planning more to the fore. Marvin Gaye and Frank Sinatra created a family business when they secured copyright, whether they meant to or not.

Rebecca Curtin: You've made a very sympathetic case, and you've repeatedly spoken about family. Do you mean family, or could you include designated heirs, like the Ray Charles foundation? What might that mean?

Andrew: We may need to think differently about those who inherit intestate and those who don't.

Brad Greenberg: The incentive theory of inheritance suggests that authors will create in part to benefit children. But there could be a labor theory of inheritance: this was the authors, like the children, and it goes to the children. In addition, is this really about IP, or just copyright?

Andrew: Copyright and right of publicity. My take is more of the labor than the incentive theory.

Q: Why does the right publicity survive death?

Andrew: Jennifer Rothman has a very good paper on this. Right of publicity is labelled as property, and property descends, so in some states it descends.

Peter DiCola: I enjoy the presentation, and I ask not to upset the applecart, but what might the First Amendment tell us about these arguments about importance of controlling meaning?

Andrew: I don't think these insights should change fair use outcomes, but my concern is that heirs' motivations are okay, especially in light of how they work in other cases. The emotional appeals are not inherently problematic. (Although I have some problems with the purity rationale).

Jake Linford: Is this project normative as well as descriptive?

Andrew: It started more descriptive, but normatively, I see no problem. Prescriptively, perhaps we could ask authors to be more clear about how their intent at registration / protection, for example.

Giancarlo: Is there space for a moral rights style argument here? 

Andrew: Perhaps attribution is the best moral rights claim.

Giancarlo: Is there a mechanism is the composers of Blurred Lines had said no? Can you make the heirs grant a license?

Andrew: Blurred Lines is a declaratory judgment action - the derivative authors brought the case to foreclose liability.

Tim: The estate's emotional appeal in the Taurus complaint may have been somewhat strategic, trying to deal with the perception of greedy, rent-seeking heirs by promising to give money to sick children.

 

 

Misrepresenting the Employment Law Impact of HB 2

One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly.  As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here). 

The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights.  Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect.  [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”] 

The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law.  In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.”  (emphasis added).  Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25.  In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?”  Gov. McCrory’s answer: “No.” 

Put simply, McCrory’s statements are clearly and undeniably false. 

However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg).  Rep. Bishop is an attorney.  When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law.  In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."  

Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law.  But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact. 

Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate.  Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference.  Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant. 

I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.

Employment Law Easter Eggs in North Carolina’s HB 2

The vast majority of the commentary around and criticism of N.C.’s HB 2 [see the full text as enacted here] has, perhaps rightly, focused on the elimination of LGBT rights in North Carolina.  The lawsuit filed early this morning by the ACLU, Equality NC, and others (including NC Central Law Professor and Assoc. Dean Angela Gilmore) focuses exclusively on the LGBT rights provisions of HB 2.  [Read the Complaint here]. 

However, HB2 was not just about LGBT individuals.  It also has some rather nasty Easter Eggs for all employees in North Carolina. 

First, and most openly, it prohibits all local governments in North Carolina from enacting a local minimum wage that exceeds the federal minimum wage.  No local government in N.C. had tried, but I guess the General Assembly figured it would rather be safe than sorry – especially when the LGBT provisions would tie up the news cycles. 

Most importantly – and most sneakily – HB 2 eliminated (yes, ELIMINATED) the only state law cause of action available to private employees to redress employment discrimination based on race, national origin, religion, color, age, or biological sex.  The General Assembly accomplished this profound change in North Carolina employment law via a single sentence in middle of page 4 of the five page bill.  That sentence reads:

“This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” 

To a lay reader (or legislator), this sentence would not seem terribly important.  However, it was inserted into Article 49A of Chapter 143 of the NC General Statutes [here, before being amended].  Article 49A is called the “Equal Employment Practices Act” (“NC EEPA”) and contains the heart of North Carolina’s state law protection from employment discrimination.  NC EEPA, which was enacted in 1977, is merely a statement of public policy.  It declares that it is the public policy of North Carolina “to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.”  N.C. Gen. Stat. 143-422.2.  Unfortunately, NC EEPA does not contain a private right of action.  Thus, the only way to enforce it was through a common law tort action for wrongful discharge in violation of public policy. 

Now, of course, you see the problem with the sentence inserted into Article 49A via HB 2.  “[N]o person may bring any civil action based upon the public policy expressed herein.” 

Poof.  With that sentence, 34 years of state law protection for employment discrimination based on race, national origin, color, religion, sex, and age VANISHED.  Millions of working North Carolinians (whether they knew it or not) relied on NC EEPA to help protect them from discrimination.  Thousands – tens of thousands? – of North Carolina workers have asserted wrongful discharge claims premised on NC EEPA since our appellate courts officially recognized the claim in 1982. 

As a management-side employment lawyer for more than 11 years, I never heard a single client complain about the existence of this claim.  But now, it is gone. 

I wonder how many members of North Carolina General Assembly knew it was in HB 2?  I wonder how many of them knew the ramifications of that sentence?

Museum of Tort Law

The American Museum of Tort Law. I thought it was a joke when it started showing up in my Twitter feed (@TortMuseum). Imagine the exhibit possibilities: the firecrackers from Palsgraf, the chair pulled out from under Ruth Garratt, the shotguns from Summers v. Tice. It's just hard to picture. But it turns out the museum is real, Ralph Nader is its President, and it actually has a Corvair!

On top of that, it has a serious purpose. Its vision statement includes these goals:

• Create and sustain a world-class facility that focuses on the rich historical legacy of Tort Law in American life and culture, inform people about the effect of Tort Law on their lives, and inspire a sense of future possibilities for the welfare of our society
• Create a unique historical environment that fosters an appreciation of the intellectual rigor and community standards embodied in law
• Show by example how ours is a nation of laws, and how Tort Law reflects the voice of the community

And to do that, the Museum "will be a unique mix of historic displays and engaging experiences that will illustrate the workings and effect of Tort Law.  Visitors will experience the ideas and decisions that go into the making of the law that defines the world in which we live." Exhibits might include great closing arguments, the stories of famous tort cases, and "you make the call" challenges in which visitors weigh in on torts policy decisions.

I doubt that it will be competing with Disney World anytime soon. But it got me thinking about my own academic discipline, Civil Procedure. What would a Museum of Civil Procedure look like? Like Torts, it raises tough policy conflicts and, these days, those conflicts are highly politicized and involve campaigns financed by wealthy corporations seeking to affect public opinion and SCOTUS amicus briefs hoping to make procedural law less claimant-friendly. How would we design a procedure museum that might convey the importance of fair processes or citizen (jury) participation? Might visitors play a game applying a Prisoner's Dilemma scenario to decisions about discovery? Classic civ pro cases might also provide thought-provoking artifacts: William Twombly's complaint? The Robinsons' burnt-out Audi? Video of the recollections of Sandra Adickes about her efforts to integrate Hattiesburg (Adickes v. Kress)? Maybe the museum could stage a battle between the Repeat Players and One-Shot Players. [I see real potential for a Procedure wing of the Tort Law museum.]

Silly? Not really.  I found it to be a great exercise in thinking about how to explain to members of the public why I think procedure is interesting and important, and what's really at stake.  What about your own legal academic discipline? I'd love to see  Comments about The Museum of [Your Subject Here].

Aggregate Agency Adjudication

At Yale's Journal on Regulation, Chris Walker highlights our project on Aggregate Agency Adjudication with the Administrative Conference for the United States.  Michael Sant’Ambrogio and I are studying agencies that experiment with class actions, trials by statistics, and other aggregate litigation techniques to resolves lots of cases in their own courts.  As we discuss in The Agency Class Action, 112 Colum. L. Rev. 1992 (2012), agencies don't do this very often.  And there are lots of reasons why.  But, we want to see if agencies can use aggregate adjudication along with other tools -- rulemaking, informal guidance, stare decisis and ADR -- to resolve cases more effectively. 

I've already described Medicare's new pilot plan to use "trials by statistics" to alleviate its 500,000+ case backlog.  So, here's another example: the National Vaccine Injury Compensation Program. Congress created this program in the 1980s to provide people injured by vaccines with a no-fault alternative to lawsuits in federal court.  In theory, an "Office of Special Master" must decide whether to compensate someone in 240 days based on a showing that the vaccine caused the injury.  But see Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. _ (forthcoming 2015) (finding, among other things, that it takes longer than that).  Many claims proceed one at a time, like most benefit programs. But when over 5,000 parents claimed that a vaccine additive, called Thimerosal, caused autism in children, the Vaccine Program used three “omnibus proceedings" to pool together all the individual claims that raised the same highly contested scientific questions in front of just three adjudicators. As it happens, the Vaccine Program has used coordinated proceedings like this for more than 20 years. 

Even though the Act that created the vaccine program contains no provision for class action suits or anything like it, the program developed the concept of the omnibus proceeding on its own because the "same vaccine and injury often involve the same body of medical expertise."  Counsel representing large groups of individual claimants often use an omnibus proceeding to answer questions of "general causation," like whether a particular vaccine is capable of causing a specific injury. The issue of whether it did so in a specific case can then be resolved more expeditiously.  I'll provide a few more details about this process below, but can you think of other agencies that assign large groups of individual similar cases to the same adjudicator for similar reasons?  What are strengths and weaknesses of this kind of approach?  

The Vaccine Program uses two types of omnibus proceedings.  The first involves common vaccines and injuries--applying evidence developed in the context of one or more individual cases to other cases involving the same vaccine and the same or similar injury. See, e.g., Capizzano v. Sec’y, HHS, 440 F.3d 1317 (Fed. Cir. 2006). The second involves hearing evidence on a general theory of causation--like does a rubella vaccine cause chronic arthritis or other categories of joint problems? The special master makes findings based on that evidence and orders the parties to file papers establishing the extent to which the facts of individual cases fit within the courts general findings. See, e.g., Ahern v. Sec’y, HHS, No. 90-1435V, 1993 U.S. Claims LEXIS 51 (Fed. Cl. Spec. Mstr. Jan. 11, 1993).  For example, counsel representing a large number of petitioners and counsel for respondent may file expert reports and medical journal articles to support the theory that the rubella vaccine is associated with chronic arthritis. The special master  then (1) conducts a hearing in which the medical experts testify, (2) publishes an order setting forth the conclusions, and (3) files it in each of the rubella cases. If he finds sufficient evidence that the rubella vaccination could cause chronic arthropathy under certain conditions, he may order individual petitioners seeking compensation to establish those conditions in a separate filing. 

According to one special master, however, most omnibus proceedings work like bellwether trials in federal district court--organizing individual cases that raise similar issues in front of the same adjudicator, in the hopes that a big outcome settles aspects of the remaining cases:   

Most omnibus proceedings ... have involved hearing evidence and issuing an opinion in the context of a specific case or cases. Then, by the agreement of the parties, the evidence adduced in the omnibus proceeding is applied to other cases, along with any additional evidence adduced in those particular cases. The parties are thus not bound by the results in the test case, only agreeing that the expert opinions and evidence forming the basis for those opinions could be considered in additional cases presenting the same theory of causation.

The use of the omnibus proceeding is thus less binding than the "all-or-nothing" approach of the class action.  But there are some drawbacks.  First, some agencies, even if they wanted to, may not be able to adopt omnibus proceedings like the Vaccine Program. Many agencies use administrative law judges, who are assigned randomly to each individual case to minimize bias and to prevent gamesmanship. Second, omnibus proceedings raise interesting questions about the legitimacy of using an adjudication process to settle complex scientific questions.  Not only were many plaintiffs in the autism proceedings anxious about commencing cases together, so were members of the public heath community, who "found it unsettling that the safety of vaccines must be put on trial before three "special masters"" in an obscure  vaccine court. Said one: "the truth about scientific and medical facts is not, ultimately, something than can be decided either by the whims of judges or the will of the masses."  

To be fair, however, those concerns aren't unique to mass litigation, or for that matter, agencies that rely on rulemaking procedures, scientific panels, or even, the Center for Disease Control to resolve tough scientific questions.  And, in the case of vaccines and autism, a significant test for the limited resources of the vaccine program, at least some found that the ability to hear common cases together led to deliberations that represented a "comparatively neutral exhaustive examination of the available evidence."   But such concerns still raise the question about the best way to efficiently and consistently pool information about many common claims without sacrificing legitimacy, compromising due process, or magnifying the risk of error.  

The Bellwether Settlement

A curious thing is happening in a Bergen County court in New Jersey.  A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."  

By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims.  A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.

But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement.  It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful.  The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.

A few thoughts beneath the fold.

I suppose many bellwether trials are really bellwether settlements in disguise.  Many of the cases that parties select as the "bellwether," as it happens, end up settling on the eve of trial. And because counsel in multi-district litigation share information, when enough cases settle, the parties learn how to structure a global settlement. So, here the court just chose to proceed based on the not-altogether-crazy idea that no case would reach a trial on the merits.  But the court's complete embrace of a "bellwether settlement" scheme raises interesting questions.  What do "bellwethers" mean when the procedures and outcomes lack any connection to the decisions a jury might reach?  

Most proponents of bellwether trials often assume some role for a jury in resolving a complex dispute.  First, bellwether trials provide a "dress-rehearsal" for other jury trials likely to come in a large case by helping parties hone their evidence and their arguments.  Second, a bellwether jury verdict assures that any eventual settlement bears some relationship to the merits of the dispute.  Third, the prospect of a jury trial in complex litigation wards off the threat of collusion and assures that the plaintiffs' counsel have sufficient bargaining strength in settlement negotiations.  Cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997) ("Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer... and the court would face a bargain proffered for its approval without benefit of adversarial investigation"). Fourth, a bellwether jury serves an important democratic function with deep roots in the history of American adjudication--providing bulwark against unelected judges who may harbor biases about what makes for a fair global resolution.

By dispensing with the jury entirely, bellwether settlements risk all of these important benefits.  But you could argue they have other advantages.  According to Judge Martinotti, the process yielded important information about claims, remedies and strategies that parties often would not share in preparation for a high-stakes trial. First, although bellwether trials provide a good way to measure how random members of the community  value common claims, they don't necessarily help counsel learn how random beneficiaries of a global settlement will value those same things. When the end-game is a global settlement, a focused sampling of arms-length negotiations could help counsel better identify solutions from the ground up.  

Second, bellwether settlements also avoid the problem of outlier or clustering verdicts--unexpectedly high or lottery-like jury awards that are difficult to average and threaten the chances of a more global settlement.  See Alvin K. Hellerstein, Managerial Judging: The 9/11 Tort Responder Litigation, 98 Cornell L. Rev. 127, 161-163 (2012)("at most, [bellwether trials would] have brought about settlements in individual claims or small clusters of claims, [but the] parties would not have had sufficient information to effect a wholesale global settlement."); Brian R. Martinotti, Complex Litigation in New Jersey and Federal Courts,44 Loy. U. Chi. L. J. 561, 575 (2012) ("[I]f the parties and counsel are in the midst of successful settlement discussions, a bellwether trial that results in a verdict outside the range of settlement—i.e., an outlier—may empower a party to go forth with the litigation and cause negotiations to break down.")

Finally, many leading members of the steering committees claimed that the structured mediations built "trust" among counsel in ways that don't easily occur until much later in multi-district litigation.

Bellwether settlements are part of a larger long-term trend taking place in the American courthouse.  As public courts export more cases to private dispute resolution--like mandatory arbitration--they also have imported values from ADR to find new ways to creatively resolve disputes, using court-annexed arbitration, special settlement masters and magistrates, and "problem solving" courts.  See Judith Resnick, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2084 (2015)(describing policies that "press trial-level judges to become conciliators, to deploy other individuals as “neutrals” to mediate or to arbitrate in courts, and to outsource decision making to the private market").  The result may be solutions that promise more speed, input, legal access, and as some have described, "paths to justice" than traditional trials.  

But the challenge is to determine what role our courts should play when large cases and "vanishing trials" push them to move outside their traditional public role as adjudicators--hearing adverse claims, supervising controlled fact-finding, and interpreting law. Judge Martinotti continues to play that traditional role in many complex cases. But like other judges in complex litigation, here his role seemed more like a public broker in a complex settlement marketplace--helping the parties set ground-rules and open the lines of communication to encourage people to enter into valuable contracts, exchange information about them, and in the process, and build trust necessary to forge a much larger, global settlement.   

Mass Compensation After September 11

Thanks to everyone for having me this month. For those of you who don’t know me, I write about complex litigation, mass torts and administrative law. Lately, I've been writing a lot about the issues that come up when mass disputes appear in unusual places—like administrative adjudication and agency settlements, federal prosecution agreements, private corporations, and even, the Presidency.   

Despite some personal experience with it, I haven’t written much about the mass litigation that followed September 11. (But see here). However, in the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero.  The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders.  After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.  

The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002.  After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court.  In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015).  Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky. 

As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute.  Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages.  Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time. 

Background of the WTC Litigation and the new September 11 Victim Compensation Fund

By way of background, immediately after September 11, New York City had to coordinate vast numbers of agencies, public health officials, uniformed officers, contractors and laypeople to clean up Ground Zero.  According to one FDNY report “the complexity of the activity performed at one site—rescue, recovery, demolition, and construction—at one time" was simply unprecedented.  (See New York City Fire Department. New York City Fire Department’s Deputy Assistant Chief Report No. 2003-P-000124).

The recovery effort was dangerous and hectic--firefighting in toxic fumes, urban search and rescue,  removing and demolishing hazardous materials from what came to be known as the "pile." And while some of the earliest responders to the WTC attacks were trained FDNY and New York police officers, many other responders--like electricians, ironworkers, demolition contractors, and volunteers--had never been trained in, or even advised about, how to use proper personal protective equipment.  Soon stories about unusual respiratory diseases, gastro-intenstinal illnesses and cancers among young recovery workers mounted.  Over 11,000 claims were filed in federal court, centralized before Judge Hellerstein, and settled in December 2010.  Congress also acted.  In the waning days of 2010, it reopened the September 11 Fund and set aside $2.8 billion to compensate what it estimated to be over 30,000 eligible workers at Ground Zero, in just five years. 

Both settlement systems share remarkable similarities.  Both involve talented and experienced special masters, seeking to develop streamlined procedures to handle the same bewildering array of injuries in the aftermath of September 11.  And from the beginning, each settlement effort faced the same enormous challenge: how to come up with a way to divide limited funds to accommodate thousands of claims, asserting over 380 different kinds of personal injuries, using novel scientific theories of causation? Despite their similarities, however, the Victim Compensation Fund and the WTC settlement relied on different tools to gather information and distribute funds. 

The September 11 Fund and the WTC Health Registry

The September 11 Victim Compensation Fund relies on an innovative administrative scheme. It's decisions are informed by a decade-old "health registry," established shortly after September 11, that today monitors more than 70,000 people.   To enroll, people completed a confidential baseline health survey in 2003. Each enrollee answered questions about where they were on September 11, their experiences and their health. This data not only allows health professionals to continue to compare the health of those directly exposed to the WTC disaster to the health of the general population, but it provides a nice way for the Fund to compensate difficult-to-confirm injuries based on the latest available science.

This is because, by statute, the National Institute for Occupational Safety and Health (NIOSH) at the CDC  periodically canvasses studies informed by this database. 42 U.S.C. sec. 300mm–22(a)(5)(A). The Victim Compensation Fund, in turn, relies on NIOSH's review and recommendations to determine and update what categories of illness are eligible for compensation.  This expert-driven process is commonly used by administrative agencies—like the FDA and EPA. 

By contrast, because it was a court settlement, Judge Hellerstein originally approved an overarching deal based on the best scientific information he had in 2010.  That presented what the court and his Special Masters called a "gut wrenching" problem for cases involving cancer.  Because of the long latency periods between exposure and the onset of cancer, at the time, there wasn't much evidence linking toxic exposure near the World Trade Center to the cancers suffered by the plaintiffs.  As a result, under the original settlement, some severe asthma claims stood to be compensated more than cancer claims.  (The September 11 Victim Compensation Fund originally denied cancer claims, altogether.  But it was able to change course and begin compensating victims with cancer based on new studies published in June 2012 (despite ongoing controversy in the scientific community.)  

The registry has some drawbacks.  First, it's under-inclusive--not everyone who is sick today had the foresight to sign up back in 2003. Second, the registry probably doesn't contain all of the information needed to draw comparisons between exposure and the onset of an illness (like whether the people in the registry were already at a higher risk of getting cancer because of family history or other risk factors).  But the program nonetheless represents an amazing undertaking.  With the  exception of the "Ranch Hand" study, which has tracked vietnam veterans exposed to Agent Orange since 1978, the size and duration of this monitoring effort is almost without precedent. Today, the WTC Health Registry is the largest registry to track the health effects of a disaster in American history.

The WTC Litigation and the "Core Discovery" Database

The WTC litigation enjoyed a different informational advantage.  Unlike the Fund, which would not know how to rank claimants' very different injuries or anticipate tough evidentiary problems until well into the claim process, private litigants were able to structure their settlement with information about everyone else’s claim in federal court.  This was, in part, because of the Court’s unique “core discovery" order—one which gathered personal, occupational, medical, geographic and other detailed information about all of 11,000+ claims already filed in federal court.*  Those claims were coded, and the results were entered into a searchable electronic database.  

Although a central purpose of multi-district litigation** is to coordinate discovery just like this, the innovative use of technology, participation and searchable information in such a massive litigation was new and indispensable to the final settlement. Information gleaned from the database helped the parties select "test cases" and understand how the resolution of one case would impact other similar cases.  Judge Hellerstein, James Henderson and Aaron Twersky later observed:

[T]he ability to perform Boolean searches covering thousands of plaintiff files allowed the Special Masters to determine interrelationships between and among responses. For example, not only could the age distributions of plaintiffs, the frequencies and severities of each type of disease, and the variety and frequency among plaintiffs’ pre-existing medical conditions be determined; but it was possible to identify correlations between the ages of plaintiffs and the severities of injuries suffered and whether the length of the plaintiffs’ exposure to the WTC site increased the severity of injury. Thus, by adding or subtracting from the criteria reflected in the various fields one could discern which factors strongly correlated with the severity of injury and which factors had a lesser impact, or no impact at all.

The VCF cannot rely on such a database, upfront--claims come in one at a time.  And while the "health registry" helps assess general relationships between exposure and disease, it does not collect the kind of detailed information about people available in court-ordered discovery, nor does it include everyone eligible to apply to the Fund).  To be sure, the Fund has other ways to collect information about all claimants. First, claimants only receive 10% of their awards upfront.  Claimants then must wait until 2017, after everyone has filed, before they can collect the remainder of their awards.  In some ways, this unique feature of the VCF gives its decisionmakers some flexibility to adjust awards depending on the number and nature of all other known claims. 

Second, the VCF has made Herculean efforts to reach out to other institutions--like New York City, employers, other general contractors, and victims groups--to obtain information about prospective claims. Not only can the VCF process claims faster with that information, but such coordination allows the fund to see and learn more about its claimants before they file with the VCF.  (And indeed this seems to be working, after a slow start, the fund now appears to be adjudicating cases faster then ever).

Conclusion

Over the past 15 years, the Supreme Court has significantly limited the ability of courts to certify class actions in mass tort cases. The fear is that conflicts of interests and individual issues will overwhelm any attempt at meaningful adjudication.  Some have suggested that the Supreme Court's jurisprudence in this area follows Lon Fuller's classical account of adjudication. Fearing that any attempt to comprehensively hear complex, multiparty actions will lead to coercive court-house dealmaking -- what Fuller labeled "polycentric" disputes that were best solved through negotiation and management -- the Supreme Court has insisted that such issues are better resolved through legislation, administrative schemes and public law.  See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (reversing complex settlement that “defies customary judicial administration and calls for national legislation”); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598 (1997) (quoting Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 42 (Mar. 1991). 

To that end, the new September 11 Victim Compensation Fund represents just such an effort. Congress created an administrative agency to determine eligibility standards, evaluate claims and distribute funds for each recovery worker at Ground Zero.  Based on an expansive study of New Yorkers in the wake of September 11, that agency, in turn, could update its process by consulting the country’s leading facility for the study of WTC-related disease. But like many public funds of its kind, the September 11 Victim Compensation Fund won't know who will decide to participate or the unique evidence require to establish some difficult claims until far into the application process.

Judicial decisions cannot be as flexible as adminstrative decisions, and I don't want to suggest that courts predict claim filings well.  (Parties to mass settlements can have a lot of trouble predicting the future.) But innovations in technology and judicial case management have allowed parties in court to know a great deal about the entire universe of pending claims and how to appropriately compensate them. Judge Hellerstein, with the assistance of two established tort scholars and the parties, generated a database of over 10,000 claimants with over 360 categories of injury. 

In some ways, this technological fix is simply a natural extension of what all multidistrict litigation tries to do--allowing a single judge to coordinate discovery and categorize common groups of claims for resolution. But such strategies also offer a possible response to Fuller's view about the futility of adjudicating "polycentric" disputes--where the number of interested parties is so large, and the ramifications so vast, that it is impossible for each person affected by the decision to offer proofs and reasoned arguments.  By adopting a unique and expansive form of data collection, Judge Hellerstein has introduced a modest way for courts to help parties chart the number, nature and interrelationship of claims for an otherwise, seemingly intractable dispute.

__

*Such information included the plaintiffs’ pedigree, medical history, tobacco use, alleged injuries, medical tests, diagnoses, symptoms, treatments, workers’ compensation recoveries, hours worked, location of work, safety equipment worn, and training received.

**Technically, all cases were consolidated before Judge Hellerstein under the Air Transportation Safety and System Stabilization Act.  The same act that created the original September 11 Victim Compensation Fund also gave the United States District Court for the Southern District of New York exclusive jurisdiction over all claims "arising from, or related to," the terrorist-related aircraft crashes of September 11, 2001

 

Does Teaching Torts Warp Your Brain?

Maybe something just happens after 10+ years of teaching Torts.  Delve each week into human suffering...in sets a bit of desensitization. Every terrible tragedy in the news -- say, a horrible hayride accident in Maine--drives the Torts Teacher to start asking questions.

Does primary assumption of risk bar a hayride accident victim's lawsuit? (No). Has industry custom been violated? (Perhaps).  There's a little voice in one ear opining, "too soon," and one in the other ear whispering, "teachable moment." Who knew, for instance, that Maine has a two-year old rec use-like "Agritourism Activities" law? (HT: Portland Press Herald). That there were attorneys specializing in hayride accidents?  

Or consider a simple object encountered in daily life - say, a pencil.  The Torts Teacher finds fascinating the question of how many different ways one could accidentally cause one's self fatal injury through encountering said object. (42).

The three D's for a Torts Teacher are certainly not Discipline, Dedication, and Determination.  They are Death, Dismemberment, and (Permanent) Disability.

Maybe this isn't unique to my favorite first-year subject.  Maybe Evidence teachers reject new science stories not adequately supported by peer review.  Maybe labor law professors like Joe Slater Al Snow spend their days pondering whether, were they only in a union, they could file a grievance over some joke lobbed in their direction at the water cooler (bugged or otherwise).

Personally, the biggest effect of teaching Torts on my thinking arose after I became a parent.  Baby walkers?  Absolutely not.  Keeping toddler in a carseat after exceeding its recommended weight? Misuse!  Preschooler riding inside the shopping cart?  Not on my watch. Product recalls?  Reasonably, nay - vigilently!, monitored.  In fact, this laptop just got recalled so I need to sign off right now.

 

SEALS

Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

Zombies Defeat Tort Law

It's always a shame to let a Prawfs guest stint go by without working in zombies.  Maybe there's just something in the air.  The Walking Dead is returning to my DVR box (any series which once starred a law professor's kid can't be all bad).  Maybe it's that I'm still hoping a review copy of Zombie in the Federal Courts will arrive.

So next week, my college's campus gets taken over by a game called "Humans v. Zombies."  According to this article in the student newspaper, all campus needs to prepare itself, because hordes of people shooting each other with nerf guns and tagging each other with two hands are about to descend.  What could possibly go wrong?

A bit, learned the plaintiff in Brown v. Ohio State University, 2012 WL 8418566.  

Plaintiff attended Parent's Weekend at Ohio State University's Columbus campus. Why not go on a midnight Ghost Tour?  Unfortunately, President Obama was on campus that week, so his limo needed an escape route, which obviously meant putting a double layer of plywood on sidewalks (somebody should fire someone from the Secret Service or something).  Anyhow, plaintiff tripped on that hazard, broke her arm, and filed suit.

Why didn't she see the plywood so evident on the sidewalk? Because a nearby "game of humans  vs. zombies being played by students ... diverted her attention."  

Zombies 1, Humans 0

Though of course, having been distracted by the zombies, she was able to avoid the application of the "Open and Obvious" doctrine and escape summary judgment -- genuine issues of material fact existed on "whether attendant circumstances overcome application of the open and obvious doctrine".

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?

 

 

 

 

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.

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.

 

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.]

 

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.

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.   

 

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.

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.}

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.

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. 

 

What Makes it Okay for Reporters to Trespass After Disasters?

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.

 

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

 

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.

The Free, Open-Source Torts Compendium

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.

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.                       

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.

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.

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. 4^th 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.

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. 

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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.

 

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. 

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

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

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.

Free, Downloadable Casebook for Torts

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.

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.   

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.

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.

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.

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

By GREGG POLSKY and DAN MARKEL

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.

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. 

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.

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.