Archive for the ‘Tort Law’ Category
Qualified Immunity
posted by Gerard Magliocca
Students who are looking for paper topics sometimes ask me where I get my ideas. The creative process is mysterious. If I really knew how to be creative, I’d be an inventor or a scientist. Nevertheless, there are some tendencies that I can identify. First, ideas can develop organically from a prior project. In other words, while working on something you come across something else interesting and get an idea. Second, ideas can form in response to a specific event (a new case or statute) that gets you exercised. Third, there may be something that bugs you or feels wrong. Then you explore that topic and discover something new.
With respect to the last of these categories, I’ve long been troubled by the state of qualified immunity doctrine. This is a subject of enormous practical importance for anyone seeking to sue public officials for violations of civil rights or other injuries. Most of the rules that govern these suits were made by judges in just the last 30 years and have almost no connection to historical practice or precedent in the sense that they give far greater deference to government wrongdoing than was true in the past. Strangely enough, this does not seem to have aroused much sustained academic criticism (at least as far as I can find). So now I’m poking around to see if I should write something about this. Perhaps my hunch or feeling will turn out to be without foundation. We’ll see.
October 21, 2009 at 1:17 pm
Posted in: Tort Law
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Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan
posted by Danielle Citron
Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.” Why? Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments. The department suspects that some of the posters could be department employees. Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.” The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.
The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials. Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods. It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.” Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors. It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”
Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves. We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job. Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.” Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece. Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007. I wonder what the Austin ACLU thinks now.
H/T Slashdot for the story
September 21, 2009 at 9:46 am
Tags: free speech
Posted in: First Amendment, Google & Search Engines, Technology, Tort Law, Uncategorized
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Health care systems kill people. So what?
posted by Nate Oman
As the debate over health care reform slogs on, a particular kind of argument has become quite familiar. It goes something like this:
Health care system X is a bad system because it kills people.
In support of this assertion, we are then treated to a set of anecdotes about how this or that person died as a result of this or that health care system break down. Hence, we see critics of Obama’s proposals trotting out horror stories about how NHS bureaucracy resulted in the death of this or that Briton’s loved ones. Likewise, we see supporters of health care reform unearthing heartbreaking stories of how the American patchwork of private insurance and Medicare or Medicaid killed off dad or mom. My question is, “So what?” Read the rest of this post »
September 15, 2009 at 7:48 am
Posted in: Bioethics, Health Law, Tort Law
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Breaching a Child’s Confidentiality
posted by Daniel Solove
Over at the NYT blog is an interesting story about a British writer (Julie Myerson) who has published a memoir about her son’s drug addiction (The Lost Child). Her 20-year old son has criticized the publication of the book. According to the Telegraph (UK):
The 20-year-old said: “What she has done has taken the very worst years of my life and cleverly blended it into a work of art, and that to me is obscene.
“I was only 17, I was a confused teenager, I was too young really to know who I was or what was happening.
“What she describes in her book are a series of incidents, it’s not who I am and I find it very sad that she feels the need to tar me with the ‘drug addict’ brush.
“She’s been writing about me since I was two, and, quite frankly, I’m not surprised by anything she does any more.
The NYT Blog asks:
Is it inappropriate and even harmful to expose the private lives of minor children, in particular? What privacy lines should be observed, if any, in writing about family members and others?
It contains responses from four people, Alison Gopnik (a psychology professor), David Matthews (author), Melanie Gideon (author0, and Michael Greenberg (author). For example, Author David Matthews writes:
Nothing is off limits as far as I’m concerned. Whether an author wants to risk fraying familial and social ties in the pursuit of the truth (as they see it) is a question left up to the writer.
Matthews’ response strikes me as rather extreme. In Britain, family members owe each other duties to keep private information confidential. In the US, the breach of confidentiality tort applies to doctors, lawyers, and others, but hasn’t been extended to friends and family. Perhaps it should be.
According to the Telegraph article, Myerson’s son said:
“I even consulted a lawyer to try to stop it, but was told there wasn’t much I could do, so I made her take out the part where she said I was selling drugs to my 12-year-old brother, which was one of her fantasies.
I’m surprised that he was advised the law didn’t protect him, since the book was published in Britain and he’d likely have a decent case under British precedent.
The Myerson case is increasingly becoming more common. Numerous bloggers are chronicling the lives of their children online, posting photos and a day-by-day account of their lives. What happens when these children grow up and resent having their entire childhood permanently recorded for the world to see?
Should family members owe each other a duty of confidentiality? Should parents write about a child’s life without that child’s consent?
Hat tip: PogoWasRight
September 1, 2009 at 7:40 am
Posted in: Family Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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Interview on Internet Anonymity on Above the Law
posted by Daniel Solove
Over at Above the Law, Kashmir Hill has posted a Q&A with me about the “Skanks in NYC” blogger case. She also discusses with me how and why I became interested in privacy law.
August 25, 2009 at 3:06 pm
Posted in: Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0
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Can You Be Sued for Unmasking an Anonymous Blogger?
posted by Daniel Solove
A model named Liskula Cohen was being attacked on a blog called Skanks in NYC. The author of the Skanks blog was anonymous. Kashmir Hill reports:
Cohen started pursuing the defamation suit against the anonymous ‘Skanks’ blogger in January after discovering the site, on which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her, taken from various websites. Since Cohen needed the identity of the blogger in order to file the lawsuit against her, a judge in Manhattan granted Cohen’s request to force Google to reveal the e-mail address and IP address of the alleged defamer.
Cohen has since dropped her $3 million lawsuit. The unmasked blogger — Rosemary Port — plans to sue Google for $15 million for breaching its fiduciary duty to defend her anonymity.
Over at CyberSLAPP, a website maintained by EFF (disclosure: I’m on EFF’s advisory board), ACLU, CDT, EPIC, and Public Citizen, they have posted documents from the case, including the court’s order to Google to unmask the author of Skanks.
CyberSLAPP seeks to combat frivolous lawsuits to reveal another’s identity:
CyberSLAPP cases typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a frivolous lawsuit just so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them.
The Skanks in NYC raises a lot of interesting issues. I’ll tackle a few in this post.
1.Was Cohen’s lawsuit frivolous? Cohen might have a decent defamation lawsuit, but she subsequently dropped it when she found out Cohen’s identity. This behavior indicates she was using the lawsuit only to unmask the blogger. I agree with CyberSLAPP that such a practice should be restricted.
August 25, 2009 at 7:04 am
Posted in: Anonymity, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0
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Traditional v. Economic Analysis
posted by Lawrence Cunningham
To debate over traditional versus economic analysis in law (aka as fairness v. welfare, deontology v. efficiency and normative v. utilitarian), in the coming law review submission season, I’ll submit evidence from torts opinions of Judges Benjamin Cardozo and Richard Posner (I reported other aspects of this research here and here).
Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and many prescribe its use, especially in tort law, where such analysis is most successful. Skeptics question the method’s descriptive accuracy and normative appeal, compared to traditional legal analysis, also making particular contributions to tort law.
While scholars use theoretical, philosophical and doctrinal techniques to defend positions, my new Article’s novel evaluation considers how the methods fare in opinions of two judicial exemplars of the contending conceptions: Cardozo, quintessential traditionalist, and Posner, avatar economist.
Comparative analysis of those opinions, the most ubiquitous in current Torts casebooks, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law. Selections from my Article’s Introduction follow.
July 27, 2009 at 12:36 pm
Posted in: Jurisprudence, Tort Law
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More on Cardozo/Posner Torts Opinions
posted by Lawrence Cunningham
Further to my polling inquiry on Cardozo and Posner Torts opinions, the following list includes notes to evoke their context or signifiance. (Thanks to the several comments on that post; I doubt I’ll prepare the multiple choice quiz on these cases that one kindly suggested, though the following can be used to check answers other comments offered.) Read the rest of this post »
May 23, 2009 at 7:20 am
Posted in: Tort Law
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Poll on Famous Torts Cases and Judges
posted by Lawrence Cunningham
Would readers take a quick poll on famous torts cases and judges stemming from my work “Cardozo and Posner: A Study in Torts” (noted here and here)? Those judges are the first and second most consequential on tort law measured by opinion frequency in 20 current Torts casebooks. Both are legendary judges with particular recognition in the law of torts.
Cardozo’s torts opinions are canonical: 10 appear in the books, 7 in at least 1/4 of them, and all but 1 appear in at least 3 books. Posner’s opinions enjoy more sporadic interest: 25 opinions appear in the books, only 2 in at least 1/4 of them, and 20 appear in only 1 or 2 books.
My analysis inter-acts these opinions, in their practical, theoretical and pedagogical contexts, to hypothesize explanations for this differential status. A simplified version of the thesis: Cardozo’s traditional doctrinalism, supplemented using old-fashioned rhetoric, wins out over Posner’s contemporary economic supplementation of legal reasoning. 
Out of curiosity, I list below the 10 Cardozo opinions and a sampling of Posner opinions and wonder if readers would comment whether they recognize the opinions and, if so, what stands out about them.
May 20, 2009 at 7:44 am
Posted in: Jurisprudence, Tort Law
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Barnes v. Yahoo!, CDA Immunity, and Promissory Estoppel
posted by Daniel Solove
The Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel. I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.
Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo. Moreover, as the court relates:
The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.
Barnes contacted Yahoo to get the profiles taken down:
May 19, 2009 at 6:14 pm
Posted in: Constitutional Law, Cyberlaw, First Amendment, Law School, Media Law, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0
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Let Private Lawyers, Not Police, Govern Cellphone Use While Driving
posted by Dave Hoffman
Will Saletan argues that some local government will soon ban possessing cellphones in the car. Shorter Saletan: “first, they came for the train conductors.”
Having just been ticketed by the Cornell police for driving while talking on a cellphone, I’m particular aware of the growth of anti-cellphone laws. (A side note: NY has a bizarre system of indeterminate fines that aren’t reduced to a sum until after you plead guilty to the offense. To the extent that this post is read by a municipal judge in Ithaca, I’d ask for mercy.) But the trend against cellphones should be resisted: we should regulate cellphone-motivated accidents through the private-party negligence regime, not the police-directed traffic liability system.
Deciding which traffic laws to enforce solely through private party lawsuits is a knotty problem, but I think the answer relates to the imposition of strict liability more generally. When an activity is unreasonably dangerous (drunk driving) and has little to no desirable social consequences, we make it unlawful even in the absence of harm to others. By contrast, when an activity has both positive and negative social consequences – like long road trips – we punish negligence (nodding at the wheel) only when leads to an accident.
Is cellphone possession and use so unreasonably dangerous, and so without public benefit, that we ought to treat it like drunk driving? Saletan thinks so, and cites a study that finds drivers equally distracted when drunk as when talking on the phone. (Not equally dangerous, which is what Saletan says the study claims.) And I’ll admit that there’s no reason not to force people to use hands-free devices.
But many things can distract drivers. Should we prohibit passengers? Especially younger ones, who sometimes have the habit of fighting in the back seat? How about radio? I’d be curious to see an experiment that compares people listening to Rush or Stern to those who are drunk. Those guys can really suck you in!
Moreover, cellphone use while driving permits important social benefits. It boosts productivity by decreasing time wasted in traffic. A rule that prohibited cellphone use, instead of forcing drivers to merely internalize the cost of use by making them liable for negligent driving, would chill conduct that we want to encourage. It would also significantly increase the costs of commuting, as individuals will once again have no recourse but to listen to the radio or hum quietly to themselves. So we should instead permit people to hold, and use, cellphones while driving. If they hit another driver or cause damage to another’s property, however, we should treat cellphone use as prima facie evidence of negligence.
May 11, 2009 at 3:25 pm
Posted in: Criminal Law, Economic Analysis of Law, Tort Law
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Presidential Right of Publicity
posted by Gerard Magliocca
There was an article yesterday about the company that sells the “Chia Obama,” which is like the “Chia Pet” that you slather with seeds and then water to make a boring ceramic figure look slightly less boring. (As I tell my intellectual property students, not all lucrative inventions are complex. Go ask the inventor of the pet rock.) The news was the Chia Obama was pulled from stores because the firm concluded that the product was inappropriate for its image.
This raises a broader question, which is to what extent, if at all, can the President control the use of his image for commercial purposes. Traditionally, politicians have operated on the assumption that there is no such thing as overexposure. Teddy Roosevelt was famous for delighting in the appearance of his likeness on all sorts of goods, culminating with the borrowing of his name for the teddy bear. Nevertheless, a spokesperson for the Obama Administration told Bloomberg News in February: “Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president.”
April 6, 2009 at 8:29 am
Posted in: Intellectual Property, Politics, Privacy, Tort Law
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Should We Have Professional Juries?
posted by Daniel Solove
According to Legal Profession Blog:
The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”
The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.
What should one conclude from this case?
The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”
But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:
I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .
Additionally, jurors are usually prohibited from taking notes. . . .
In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).
The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?
Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.
March 20, 2009 at 11:04 am
Posted in: Civil Procedure, Criminal Law, Empirical Analysis of Law, Law Practice, Tort Law
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Rethinking Free Speech and Civil Liability
posted by Daniel Solove
When does civil liability for speech trigger First Amendment protections?
Recently, Professor Neil Richards and I posted on SSRN our new article exploring this question: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).
Surprising, the issue of when civil liability for speech triggers First Amendment scrutiny is governed by two totally contradictory rules. Since New York Times v. Sullivan, the First Amendment applies to tort liability for speech, including defamation and invasion of privacy.
But in other contexts, the First Amendment does not apply to liability for speech. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules restrict speech.
In a large range of situations, however, these rules collide. Tort, contract, and property law overlap to a substantial degree, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability.
This conflict is vividly illustrated by the law of confidentiality. We pose the following hypothetical in the article:
Suppose an attorney representing a client in a highly-publicized case discloses the client’s confidential information. The client sues under the breach of confidentiality tort. The attorney claims that she was engaging in free speech and that the First Amendment protects her right of expression. Does the Sullivan or Cohen rule apply? One could argue that the Sullivan rule applies because breach of confidentiality is a tort. On the other hand, breach of confidentiality remedies a contract-like harm. Even if never expressed orally or in writing, an implicit agreement exists between the attorney and client that the attorney will maintain the confidentiality of the client’s information. Perhaps this situation should fall under the Cohen rule because the breach of confidentiality claim more closely resembles an action for promissory estoppel rather than an action for public disclosure of private facts. If this were the case, then the First Amendment would not apply.
In our article, we explore how this problem can be resolved. We survey the way that existing doctrine and theories attempt to address the conflict between the Sullivan and Cohen rules, and we demonstrate why such approaches are lacking. We aim to develop a coherent approach for resolving when the First Amendment applies to civil liability for speech. To find out our solution, take a look at our article and let us know what you think.
March 17, 2009 at 11:59 am
Posted in: Articles and Books, Constitutional Law, Contract Law & Beyond, First Amendment, Media Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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Stealing Love
posted by Solangel Maldonado
Love is a wonderful thing, but sometimes love (or infatuation) leads individuals to engage in behavior that can hurt not only them, but also their families. I am talking about extramarital affairs. Although over 85% of Americans believe that adultery is morally wrong, countless spouses are unfaithful. Last week the NY Times discussed the benefits of an anti-love vaccine which would prevent humans from falling in love with the wrong person (i.e., someone who is committed to another person). While such a drug would do wonders for those who wish to fight the occasional urge to stray, it does little to deter individuals who have no qualms about pursuing someone else’s spouse. The law, however, might already provide a deterrent, albeit a quite controversial one.
A minority of states, including Mississippi, North Carolina, South Dakota, and Utah, still recognize a cause of action for alienation of affections against any person who wrongfully interferes with a person’s marriage, thereby causing that person to lose his or her spouse’s affection. Lest you think these causes of action are a thing of the past, this past August, the Mississippi Supreme Court upheld a $1.5 million verdict against an attorney who had an affair with his client’s wife. The plaintiff, who had hired the attorney in connection with a medical malpractice case, prevailed on his claims for intentional infliction of emotional distress, breach of contract, and alienation of affections. Further, even after abolishing the tort of alienation of affections, some states, including California, Connecticut, Kentucky, Maryland, Ohio, Oregon, and Virginia, have allowed claims arising from an extramarital affair to be brought against certain professionals, including attorneys, psychiatrists/psychologists, and clergymen providing marital counseling services, on a theory of intentional infliction of emotional distress, professional malpractice, negligent counseling, and breach of fiduciary duty. For example, eight years after abolishing the tort of alienation of affections, the Kentucky Supreme Court upheld a claim for intentional infliction of emotional distress against a priest who had an affair with the plaintiff’s wife to whom the priest was supposedly providing marriage counseling.
January 20, 2009 at 10:13 pm
Posted in: Family Law, Tort Law
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Injury, Probability, and Mamma Mia!
posted by Sarah Lawsky
In Mamma Mia!, Sophie invites three men she has never met to her wedding. She knows that one of these three men is her father, but she does not know which one. The movie is notable for a number of reasons. It is notable, first, because it is the second movie this summer (after Sex and the City) apparently made for, and featuring, women over 40. It is also notable for its relationship to tort law (I mean, aside from the obvious link related to Pierce Brosnan’s singing). The explanation is after the jump (to avoid revealing a key plot point, to the extent there is a plot). (Translation: there is a spoiler after the jump–though really, if you are going to Mamma Mia! for the gripping story line, you have much larger problems.)
July 28, 2008 at 8:20 am
Posted in: Movies & Television, Tort Law
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Who is Responsible? The Criminalization of HIV Transmission
posted by Scott Burris
You may have thought that HIV is a disease, but we are seeing a serious resurgence of the idea that HIV transmission is a crime. Sure it is important to promote basic knowledge, safe sex, testing and care, but when people actually infect other people – so goes the argument – it’s time to call in the police. Criminalization has been an off-and=on issue in the US for twenty years, but the rest of the world seems to be seeing a new surge. Close on a dozen countries in West Africa have added new statutes on HIV exposure in the past two years, and there have been high-profile prosecutions in countries as different as Britain and Singapore. (For an excellent analysis of the British cases, see the book by Professor Mathew Weait; for for good coverage and analysis of the cases, see Edwin J. Bernard’s blog).
Over the next few weeks, I’ll be blogging on this issue as part of my participation in the international AIDS conference in Mexico City, August 2-7. I’ll be going over the arguments against criminalization and describing the activities around the issue at the conference. For now, though, I am going to show how criminalization plays out by telling you about a very interesting decision handed down last month by the Swiss Federal Court. It is, as far as I know, the first case in which a person who did not have actual knowledge of his HIV status has been found guilty of a transmission crime. Read on…
July 22, 2008 at 3:07 pm
Posted in: Criminal Law, Health Law, Privacy (Law Enforcement), Privacy (Medical), Tort Law
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Cardozo and Posner on Contracts and Torts
posted by Lawrence Cunningham
Several recent inquiries (for example, here and here) investigate aspects of judicial decision making, including empirical studies of influence, reputation and productivity.
A decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.
This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental and pragmatic method (although Cardozo showed hints of a proto-pragmatist). Notably, Cardozo’s and Posner’s reproduction frequency shared a couple of similarities. Each had an aggregate of 13 opinions reproduced in the casebooks and 6 of each of these had appeared in just 1 casebook apiece. On the other hand, Cardozo had 2 opinions that were clearly canonical, being reproduced in nearly every casebook, while Posner’s most frequently reproduced opinion appeared in only 2/3 of the books.
This summer, I’m beginning a like inquiry on comparative judicial contributions to Torts. Some similarities and some differences from the Contracts study appear in the preliminary data (being ably developed by my research assistants, Matt Albanese, Dana Parsons and Paul Stepnowsky).
July 1, 2008 at 10:50 am
Posted in: Contract Law & Beyond, Economic Analysis of Law, Empirical Analysis of Law, History of Law, Jurisprudence, Law School (Teaching), Legal Theory, Tort Law
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Crimtorts at Widener Law
posted by Dave Hoffman
Chris Robinette passes along this nice website, highlighting Widener Law School’s recent Crimtorts symposium. With guests including Thomas H. Koenig (Northeastern-Anthropology), Michael L. Rustad (Suffolk), Kenneth W. Simons (Boston), Martha Chamallas (Ohio State), Jeffrey O’Connell (Virginia), Byron G. Stier (Southwestern), Frank J. Vandall (Emory), Mark Geistfeld (NYU), Keith N. Hylton (Boston), Anthony J. Sebok (Cardozo), and Catherine M. Sharkey (NYU), it looks like they put together a great event. If you are interested in this area of merging law, and missed it, check out the videos here.
April 27, 2008 at 9:36 pm
Posted in: Criminal Law, Tort Law
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Does the Roomates.com Case Affect CDA § 230 Immunity for JuicyCampus?
posted by Daniel Solove
The U.S. Court of Appeals for the Ninth Circuit (en banc) has just issued a very interesting opinion interpreting a federal law providing immunity from liability for online speech — the Communications Decency Act (CDA), 47 U.S.C. § 230. The case is Fair Housing Council v. Roommates.com, LLC, 2008 WL 879293 (9th Cir. April 3, 2008) (en banc).
The CDA § 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Most courts have interpreted § 230 to immunize the operators of websites or blogs against distributor liability for comments posted by others.
I have been critical about the way that this statute has been interpreted:
Unfortunately, courts are interpreting Section 230 so broadly as to provide too much immunity, eliminating the incentive to foster a balance between speech and privacy. The way courts are using Section 230 exalts free speech to the detriment of privacy and reputation. As a result, a host of websites have arisen that encourage others to post gossip and rumors as well as to engage in online shaming. These websites thrive under Section 230’s broad immunity.
Websites such as JuicyCampus, which encourage and facilitate gossip and rumors about college students, exploit § 230 immunity.
The Roommates.com case suggests a limit to § 230 immunity that some might believe creates a way to hold sites like JuicyCamus.com responsible for the gossip and rumors they solicit. In the end, I don’t believe that Roommates.com will save the day and penetrate § 230’s armor for sites like JuicyCampus.
Roommates.com allows users to post listings for roommates. When a user creates a listing, Roomates.com requests particular information from users, requesting preferences for gender, sexual orientation, and kids. Much of this information is solicited via drop down menus which list the various choices. Users can also put additional comments in a section that allows for an open-ended narrative. Two Fair Housing Councils in California sued Roommates contending that the site violated the Fair Housing Act (FHA), 42 U.S.C. § 3601 and state housing discrimination statutes. The FHA prohibits any “statement . . . with respect to the sale or rental of a dwelling that indicates . . . an intention to make [a] preferenc,e limitation, or discrimination” based on certain categories (such as gender or sexual orientation). California law has a related restriction.
Roommates.com contended that it was immune under the CDA § 230. It claimed that it just provided options for its users and is not the “information content provider.” But the Ninth Circuit concluded that § 230 immunity didn’t apply. According to the statute, an “information content provider” is one who is “responsible, in whole or in part, for the creation or development of” the content. Writing for the court, Chief Judge Kozinski noted:
The FHA makes it unlawful to ask certain discriminatory questions for a very good reason: Unlawful questions solicit (a.k.a. “develop”) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. This is no different from a real estate broker in real life saying, “Tell me whether you’re Jewish or you can find yourself another broker.” When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information.
The court also held that Roommates.com was not immune for its search system, which allowed users to search according to discriminatory criteria:
April 5, 2008 at 10:55 am
Posted in: Consumer Protection Law, Privacy, Privacy (Gossip & Shaming), Tort Law, Web 2.0
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