Category: Tort Law

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Divisible Defamation

When Congress passed the SPEECH Act two years ago, its primary goal was to protect speakers from hefty defamation verdicts rendered by libel havens, countries whose laws are less speech-protective than those in the United States.  The statute essentially prohibits U.S. courts from enforcing foreign defamation judgments unless the applicable law provides speech protections comparable to those in the U.S., or the same judgment would have resulted under U.S. law.  One recent case suggests that the SPEECH Act may inadvertently be splitting the defamation atom in two, allowing plaintiffs to rehabilitate their reputations while simultaneously shielding defendants from monetary loss.  This phenomenon may sound familiar to Conflicts aficionados, as it seems to replicate the creation of so-called divisible divorce in the 1940s.

A case now on appeal in the Fifth Circuit, involving New Orleans corruption, Canadian libel law, and the same-sex proprietors of a Nova Scotia fishing resort, illustrates what may become the norm when electronic speech spans national borders.

In a 2010 story about alleged political corruption in Jefferson Parish, Louisiana, the New Orleans Times-Picayune reported that a parish official co-owned a vacation resort in Nova Scotia.  The paper later retracted the statement and stopped hosting a blog that had also discussed the connection between the disgraced official and the Nova Scotia couple that ran the resort.  The blogger found a new host and continued to post allegations that the couple was laundering proceeds of the New Orleans corruption, along with embarrassing photoshopped images of the two and several homophobic slurs against them.  The couple sued the blogger in Canada for defamation (and several other torts).  The blogger did not appear, the allegations in the complaint were taken as true, and the court awarded the men $425,000.  The men sought to enforce the judgment in Mississippi state court, the case was removed to the local federal district court, and the court refused to enforce the judgment, citing the SPEECH Act.  The federal court concluded that its Canadian counterpart did not specifically find that the blogger’s statements were false, as required under U.S. law.  Therefore, the Canadian court provided less speech protection than a U.S. court would have, and the judgment could not be enforced.

The result may have been an unintentionally ideal compromise.  Together the U.S. and Canadian courts essentially credited the moral victory to the ostensibly defamed lodge owners and the financial victory to the blogger.  While this might not be a palatable outcome for most torts, there is some research suggesting that defamation plaintiffs, in particular, are as concerned with public acknowledgment that they have been falsely impugned as they are with collecting money.  In fact, the Nova Scotia plaintiffs were reported to have said “this was never about the money,” echoing Frederick Pollock’s famous observation that “the law went wrong from the start in making the damage and not the insult the cause of the action.”  Further, while speech has grown increasingly global, libel law remains stubbornly divided between defendant-protective doctrines in the U.S. and more plaintiff-friendly doctrines elsewhere.  So it may be time for a mechanism that strikes something of a balance.

In fact, it is not uncommon that recognition and enforcement principles are deployed to accommodate cultural or generational divides reflected in conflicting laws.  In the 1940s, the Supreme Court held in a series of cases that states had to recognize quickie divorces awarded by sister states that had welcomed fleeing spouses, even when the absent spouse was clinging to the marriage.  Several years later, however, the Court held that while sister states had to honor adjudications of marital status, they did not have to honor out-of-state judgments purporting to dictate the financial status of the absent spouse.  Thus was born the “divisible divorce,” with one state handling the status adjudication and another handling the financial adjudication.  Perhaps the SPEECH Act has established divisible defamation for the age of global speech.

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Disaster Compensation Funds

Authorities in Boston have set up a fund (supported by voluntary donations) to compensate the victims of the bombing last week.  Ken Feinberg, the man who administered the 9/11 Fund and the BP Disaster Fund among others, has been called in to help with this one too.

We need more scholarship and regulation of this trend in tort compensation.  While there are advantages in setting each of these funds up as an ad-hoc arrangement and using the expertise of a single individual, drawing up a model statute for states to enact that would create a basic framework for these funds when they are necessary would be better over the long run.

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Wrongful Birth and Adoption

Wrongful birth cases present many challenging issues.  Since I talk about this doctrine every time that I teach Torts, I was surprised to realize recently that I have never posted about this.  For those who do not know, “wrongful birth” refers to a cause of action brought because of an unwanted pregnancy caused by medical malpractice or defective birth control.  Suppose that a vasectomy is done negligently, or a woman gets the wrong pills, etc.  The doctor, pharmacist, or pharmaceutical company could be liable.  The really difficult question is–for how much?

One possibility is that the wrongdoer is liable for the cost of an abortion.  If you don’t get one, the argument goes, then you are not acting reasonably to mitigate damages.  No state takes this view.  It is easy to see why.  That would be pressure to have an abortion, which would be intolerable for many people.

Another option, which is the law in some states, is that any liability extends for only the costs of the pregnancy.  (By costs, I am including emotional distress and other intangible damages.)   One thought here is that adoption is what you must do to mitigate damages.  Or you could say that a child goes from “unwanted” to “wanted” once the parents accept responsibility for raising the baby, which breaks the chain of causation.  The adoption question is interesting because I don’t know of a religious objection to giving up a child for adoption, yet people feel uncomfortable with the idea of making adoption into a legal duty.

A third alternative, also the law in some states, is that liability extends beyond birth to reasonable child-rearing expenses until the kid turns 18.  This would say, in effect, that adoption is not necessary mitigation and that rearing a child does not break the chain.  Estimating the damages in such a case, though, is really speculative.  Moreover, there are benefits to raising a child.  How do you calculate that?

Finally, you could say something like the following, which is also done in some states:  “You only get damages after birth only if the child suffers from some disability that imposes a special financial burden on the parents.”  Calculating the damages is still tricky, but this does acknowledge that this situation is materially different from the usual one.

There is no clear answer to this dilemma, though I’d be curious to hear what people think about the different approaches that states take.

UPDATE:  In the original post, I said “wrongful life” when I meant “wrongful birth.”  Fixed now.

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“The Future of Drones in America” Hearing

I got the chance to testify at a hearing of the full Senate Judiciary Committee about the domestic use of drones yesterday. The New York Times has this coverage and, for aficionados of torts, I talk about intrusion upon seclusion with Senator Dick Durbin in this clip from NBC News. Should you get a chance to watch the hearing in full, Senator Al Franken’s thoughts at the end were particularly vivid. My written and oral comments were similar to those outlined in my previous post: privacy law places few limits on the use of drones for surveillance, but we should be very careful in crafting any drone-specific legislative response.  It happens that, about when I was testifying, my students were taking a final where one of the questions involved a drone filming a private party.  I feel they had fair notice that this might be on the exam.

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Product Liability and 3D Printing

I’m going to do some posts on 3D printing this week, some of which relate to the paper that Deven and I are writing.  This one deals with product liability.

As I’ve said before (to great consternation), state product liability law is basically a dead field.  In large part, this is because of federal preemption.  But the growth of 3D printing, like other technological changes, may bring the common law back into vogue because Congress will not get its act together quickly to regulate this field.

Here’s the basic issue.  In a world of 3D printing, anyone could be a manufacturer.  Let’s say I make something from scratch in my 3D printer at home and that product (a toy, a cookie, a tool, a spare part) injures someone.  Should we apply the same principles of product liability to that person that we would to a firm?  Yes and no, I think.  We probably won’t require individuals to put warnings on what they make, but we may say that a design or manufacturing defect should lead to strict liability.  Or would we say that a negligence standard should apply to homemade products?

Now try this one on for size.  I upload a file that will make some something to a website.  Someone downloads my file, makes the item, and this injures someone.  Is the author of the file on the hook for a design defect claim?  What about the website?  While this could depend on a number of factors, courts will again need to think hard about how product liability rules should be adapted to this ecosystem.

We’re not there yet, but it’s coming.

Addictive by Design

I was honored to see Prof. John Banzhaf weigh in on a recent post on wellness programs. That post suggested parallels between the addictiveness of tobacco, and that of many food products. Little did I know the NYT was about to publish a blockbuster article on exactly that issue:

[In a 1999 meeting of food industry leaders,] [t]he first speaker was a vice president of Kraft named Michael Mudd. . . . As he spoke, Mudd clicked through a deck of slides — 114 in all — projected on a large screen behind him. The figures were staggering. More than half of American adults were now considered overweight, with nearly one-quarter of the adult population — 40 million people — clinically defined as obese. Among children, the rates had more than doubled since 1980.

Mudd then did the unthinkable. He drew a connection to the last thing in the world the C.E.O.’s wanted linked to their products: cigarettes. First came a quote from a Yale University professor of psychology and public health, Kelly Brownell, who was an especially vocal proponent of the view that the processed-food industry should be seen as a public health menace: “As a culture, we’ve become upset by the tobacco companies advertising to children, but we sit idly by while the food companies do the very same thing. And we could make a claim that the toll taken on the public health by a poor diet rivals that taken by tobacco.”

Fast food lawsuits are looking more prescient by the day.

Illustration: Via Engadget article on interactive ad patents.

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Revenge Porn and the Uphill Battle to Sue Site Operators

Last week, a group of women filed a lawsuit against the revenge porn site Texxxan.com as well as the hosting company Go Daddy!  Defendant Texxxan.com invites users to post nude photographs of individuals who never consented to their posting.  Revenge porn sites — whether Private Voyeur, Is Anyone Down?, HunterMoore.tv (and the former IsAnyoneUp?), or Texxxan.com — mostly host women’s naked pictures next to their contact information and links to their social media profiles. Much like other forms of cyber stalking, revenge porn ruins individuals’ reputations as the pictures saturate Google searches of their names, incites third parties to email and stalk individuals, causes terrible embarrassment and shame, and risks physical stalking and harm.  In the recently filed suit, victims of revenge porn have brought invasion of privacy and civil conspiracy claims against the site operator and the web hosting company, not the posters themselves who may be difficult to find. More difficult though will be getting the case past a Rule 12(b)(6) motion to dismiss.

In this post, I’m going to explain why this lawsuit is facing an uphill battle under Section 230 of the Communications Decency Act and why extending Section 230’s safe harbor to sites designed to encourage illicit activity seems out of whack with the broader purpose of CDA.  In my next post, I will talk about cases that seemingly open the door for plaintiffs to bring their suit and why those cases provide a poor foundation for their arguments.

Does Section 230 give revenge porn operators free reign to ruin people’s lives (as revenge porn site operator Hunter Moore proudly describes what he does)?  Sad to say, they do.  Read More

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“Game Of Negligence” And Other 1L Haiku

We recently covered proof of negligence in my torts class at the University of Washington. I gave my students an optional assignment: write a haiku about the reading (pages 238-67 of the 12th edition of Prosser). Here is sampling of their efforts, complete with kigo. Enjoy!

 

Winter is coming
Dangerous like icy roads,
Bananas and grapes.

 

No—don’t cry, they said
Not over milk that’s been spilled
but K-Mart will cry

 

Fall’s weary pattern
Of darkness, of rain and death
It speaks for itself.

 

Read More

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Can Dying Be Good For Your Career?

Now that the election is over, I can finally blog about Michael Jackson.  A civil suit was filed by Jackson’s estate against Conrad Murray, who was convicted of criminal wrongdoing in Jackson’s death.  Murray’s most intriguing defense is that Jackson’s death was actually beneficial to the estate and thus there was no overall harm to his family.

It can be true that a celebrity will earn more dead than alive.  That possibility seems to rest largely on how the person died (was it notorious?) and whether they died young.  Going one step further and saying that this marginal gain outweighs the loss of consortium that family members suffer is something that, as far as I know, no court or jury has taken.  In Jackson’s case, the calculation is complicated by the fact that he was (apparently) a spendthrift, and thus his net income was also boosted once he died because he was no longer spending the money.  So what do you think?  Can this defense succeed?

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Los Angeles Civil Court Records, 1850-1859

This past summer, I spent a few weeks down at the Huntington Library in Pasadena, which houses Los Angeles County’s court records for the years 1850 to 1900.  There, I perused the Los Angeles District Court’s civil case files for the 1850-1859 time frame. (The district court of that era functioned as a state superior court does today.) I wanted to see what, if any, personal-injury actions were filed during that span—the Paleozoic Era of tort law—in what was (at the time) a very small, somewhat sleepy community.

The unsurprising answer: There weren’t a whole lot of personal-injury cases back then, at least in the district court. Out of the hundreds of case files that I reviewed, I didn’t come across even a single personal-injury case that sounded in negligence; there were four such cases that involved batteries or assaults. Debt-collection actions provided the vast majority of the district court’s docket. Other recurring case types included petitions for divorce; personal-service and other contract disputes; efforts (for naught) to recover on gambling debts; suits over horses, cattle, and timber that today, would sound in conversion or trespass to chattels; and a hodgepodge of other matters.

I wasn’t particularly surprised by the dearth of personal-injury lawsuits sounding in negligence. For one thing, there weren’t a whole lot of negligence lawsuits of any type, anywhere, back then, and there certainly wasn’t a robust infrastructure of caselaw and treatises that might advise small-town attorneys about how they should pursue a personal-injury claim sounding in negligence. Consider, for example, this 1852 New York  legal formbook.  The book includes draft complaints that allege claims for breach of promise to marry; “for keeping a dog used to bite mankind”; for criminal conversation with one’s wife; for debauching one’s daughter or servant; for assault and battery; and for false imprisonment–but nothing (aside from the vicious-dog suit, perhaps) that indicates how a negligence personal-injury suit should be alleged. Furthermore, 1850s Los Angeles wasn’t exposed to some potent harm-creating agents that would provide grist for the personal-injury mill (and catalyze claim consciousness among potential plaintiffs) in the decades to come. Among them, Los Angeles County wasn’t served by a railroad at the time, it didn’t boast other heavy industry, and it didn’t have the steamboat traffic that, say, Sacramento did.

I’m a torts partisan, but I still found the case files interesting. For one thing, depositions were a heck of a lot shorter back in the days before typewriters; the need to have a local notary transcribe the proceedings by hand apparently placed strict de facto limits on litigants’ ability to wear out a deposition witness with questions. Complaints were short and to the point, too, at least for the most part. Also, I wondered about the consequences of, or possible gamesmanship associated with, some local attorneys’ utterly inscrutable handwriting.

In case any of you are wondering how an 1850 tort case was pled, the following represents the entirety of a complaint (minus the caption and signatures) drafted by local attorneys and filed with the Los Angeles District Court that year:

Your petitioner George W. Robinson a resident citizen of the state and county aforesaid and plaintiff in this suit complaints of Jose Lugo, a citizen of the State of California and of the County of Los Angeles and Defendant in this suit for that whereas heretofore to wit on the 20th day of July AD 1850 in the county of Los Angeles and State of California the said Defendant with force and arms to wit with pistols [lassoes?] + guns then and there assaulted and violently beat the said plaintiff in his person inflicting upon him the said plaintiff [?] and various wounds and bruises to wit four severe wounds on his head four wounds on his right arm four wounds on the left arm ten wounds on the body ten wounds on the right led ten wounds on the left leg whereby and by reason whereof the said plaintiff was greatly injured suffered much pain and loss of blood was put to great expense in paying physicians to effect a cure of the aforesaid wounds and suffered much loss of time being unable by reason of said wounds to pursue his lawful and necessary business as he otherwise could and would have done and also put him the said plaintiff to much other trouble expense pain and inconvenience by reason of the aforesaid assault and battery, whereby and by reason whereof the plaintiff avers that he has been damnified and hath sustained damage to the amount of ten thousand dollars the said plaintiff further complains and states unto the Court that at the time and place aforesaid the said plaintiff then and there being a free citizen of the State of California and having a free full and perfect right to enjoy his liberty he the said Defendant then and there willfully maliciously and without any just or reasonable cause whatsoever with force and arms and deadly weapons (and without and legal process whatsoever) pursued seized upon and bound with cords the person of the Plaintiff thereby [?] him the said plaintiff of his liberty for a long space of time to wit for the space of three days whereby and by reason of the premises the plaintiff avers he was put to great pain and trouble in body and in mind as well as great inconvenience and loss of time whereby and by reason of the premises he avers that he has been damnified and hath sustain and demands of defendant damage to the amount of twenty thousand dollars and therefore he brings suit.