Docketology in Print

I'm happy to point out that my article, Docketology, District Courts and Doctrine, is now in print in Volume 85 of the Washington University Law Review. You can find previous discussion of the piece on this blog, starting here. The final version is significantly improved over the drafts, so I hope you'll check it out. If anyone is motivated by the article to try some dockets research, let me know know, and I will tell you all the ways I've messed it up in the past!

Coming next: Docketology, Part II.

Posted by Dave Hoffman at 03:41 PM | Comments (0) | TrackBack

Calder and World-Wide and Shoe, Oh My!

If, like me, you are teaching the jurisdictional portion of Civil Procedure this semester, and if, like me, your students are eager for cases that relate to the age of the internet (for me, the second most popular request after "more hypotheticals"), here's some candy for you: Dudnikov v. Chalk & Vermilion Fine Arts. In a clearly-written opinion, the 10th Circuit applies all of our old friends, from International Shoe to World-Wide Volkswagen, from Burger King to Calder (even a mention of Keeton!) to an eBay dispute.

So here's what happens: Ms. Dudnikov and her husband run a "small and unincorporated" business selling fabric on eBay from their home in Colorado; their Colorado location is clear from their eBay auction page. One type of fabric uses a design by Erte, a 20th century artist, but replaces the elegant character in the design with Betty Boop and her dog, Pudgy. Chalk & Vermilion (a Delaware corporation with its principal place of business in Connecticut) is the American agent of a British corporation that owns the copyright to Erte's works. Chalk decides that this fabric infringes their copyright, and instead of playing nice and sending Dudnikov a cease and desist letter, it files a "notice of claimed infringement" or NOCI with eBay (in California), which terminates the fabric auction and puts a "black mark" on Dudnikov's eBay record (which until now has enjoyed a 99.9% satisfaction rating). Dudnikov offers to remove the offending fabric if Chalk pulls the NOCI; Chalk refuses and notifies Dudnikov that it plans to file suit in federal court with in 10 days to prevent the fabric auction from being reinstated. Not so fast -- in the meantime, Dudnikov and her husband file suit against Chalk and its British counterpart in Colorado federal court, seeking a declaratory judgment and an injunction against interference with future fabric sales. You can see where this is all going -- defendants enter a special appearance and move to dismiss for lack of personal jurisdiction. And that's where the fun begins! Plenty of good times to go around.

Posted by Jaya Ramji-Nogales at 09:45 AM | Comments (1) | TrackBack

On Remand from the U.S. Supreme Court, the Oregon Supreme Court Reinstates $75.9 Million Punitive Damages Award

Howard Bashman has a nice summary of why the Oregon Supreme Court was able to reinstate $75.9 million in punitive damages against Philip Morris. In short, Philip Morris had two claims on appeal. One rested on a procedural due process claim "asserting that a defendant's due process rights are violated if a jury assesses punitive damages to punish a defendant for having caused harm to persons other than the plaintiff." The other substantive due process claim argued "that the punitive damages award was unconstitutionally excessive because, among other reasons, it was nearly 100 times larger than the award of compensatory damages." The Supreme Court ruled only on the procedural due process claim and that is why Oregon could reinstate the damages.

Specifically, Philip Morris used jury instructions that were objectionable. As Bashman explains, "Under Oregon law, a party has no right to have a trial court deliver its proposed jury instruction unless the instruction is entirely unobjectionable." Here, the Oregon court found other errors and so reinstated the claim. Bashman goes into whether Philip Morris will have a good chance of another Supreme Court case on the substantive claim. His analysis makes sense but I leave it to others to go into that aspect of Supreme Court litigation tactics.

His last point is the one that may be of most use to attorneys "the reason Philip Morris failed to benefit from the U.S. Supreme Court's punitive damages ruling in its favor in this very case is that the trial lawyers for Philip Morris tried to slant their proposed punitive damages instruction too far in the defendant's favor."

Posted by Deven Desai at 12:25 PM | Comments (2) | TrackBack

Twombly: Trimming Some of the Possible Worlds

Over at Prawfsblawg, Scott Dodson has a post up commenting on the latest judicial decision to attempt to make sense of the Supreme Court's civil procedure blockbuster last term, Bell Atlantic v. Twombly. Twombly held, seemingly contrary to what courts had been saying for decades, that a complaint must not only provide a short and plain statement of the claim, but must also plead "enough facts to ... nudge[ ] their claims across the line from conceivable to plausible." Although this set off alarm bells among many commenters suggesting that the Supreme Court had just struck notice pleading dead, the Third Circuit, in Phillips v. County of Allegheny, held that Twombly says only that Rule 8(a)(2) means what it says: a plaintiff must provide not only a short and plain statement of the claim, but one "showing that the pleader is entitled to relief." No plausible facts, no showing. In that case, Twombly would be a non-event.

Scott proposes a different interpretation:

A better reconciliation of “plausibility” and Rule 8 would have returned to the Third Circuit’s initial insight: context matters. In the unique circumstances of antitrust, inferential allegations of conspiracy must contain facts showing the conspiracy was plausible in order to show entitlement to relief. By contrast, in a garden-variety negligence case, for example, plausibility is not required; rather, even a bare averment of “negligently drove” may need no factual elaboration on the question of negligence in order to show entitlement to relief.

These interpretations are both reasonable. But here's mine, which I suggested to my Civ Pro class when we covered this case a few weeks ago: Twombly rules out low-probability inferences in complaints.

Philosophers use a neat terminology to discuss counterfactuals and probabilities: they refer to each possible course of events as occurring in a "possible world." The probability of the event actually occurring (or having occurred) is represented by the "distance" of that possible world from our own. For example, a nearby possible world has me eating a peanut butter and jelly sandwich tomorrow. (It might even be the actual world.) In a much more distant possible world, I win a million dollars tomorrow. In an even more distant possible world, Earth is invaded by aliens tomorrow.

Conley v. Gibson's "no set of facts" language -- that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief -- seems to say that, as long as there is even one possible world, consistent with the allegations in the complaint, in which the plaintiff wins, a 12(b)(6) motion must be denied. Twombly, by contrast, seems to hold that a motion to dismiss can be granted where the plaintiff only wins in very distant possible worlds -- i.e., under circumstances that have a low probability of being actual.

I think that's the only way in which the Twombly complaint could be dismissed, but Form 11 (née 9) and Swierkiewicz remain on the books. In Twombly, the plaintiffs alleged what were, to them, suspicious circumstances: parallel conduct by all of the Baby Bells in denying competing local phone service and internet providers wholesale access to their networks, and in not competing with each other. Therefore, given the parallel conduct, the plaintiffs alleged

upon information and belief that [the Baby Bells] have entered into a contract, combination, or conspiracy to prevent competitive entry in their respective ... markets and have agreed not to compete with one another ....

How is that too large a leap from the facts pled, but Form 11 -- "on [date], at [place], the defendant negligently drove a motor vehicle against the plaintiff" -- isn't? Or the complaint in Swierkiewicz, which alleged that the plaintiff was a 53-year-old native of Hungary, that he was phased out of his job by some French nationals, and then asserted that he had been fired due to age discrimination and national origin discrimination? I think the Supreme Court is drawing an implicit line between inferences that are relatively probable (although not necessarily 50% probable), and those whose probabilities are below some undeclared threshold. Or, to put it back in possible worlds terminology, there's a distance limit to how far an inferential leap can travel in a complaint.

The Twombly majority evidently believed the "suspicious circumstances" -- the parallel conduct -- alleged by the plaintiffs in that case only gave rise to an extremely slim chance of an actual conspiracy; somewhere on the order of my winning a million dollars tomorrow. (Imagine this inference: I had a donut today; therefore, on information and belief, I will win a million dollars tomorrow. Sure, the second fact is consistent with the first. But the donut-eating worlds are hardly anywhere close, as a group, to the million-dollar-winning worlds.) Indeed, Justice Souter in footnote 4 takes the trouble to point to discussions of hypothetical parallel conduct that does make a conspiracy relatively more probable: for example, "complex and historically unprecedented changes in pricing structure made at the very same time by multiple competitors, and made for no other discernible reason."

Contrast the Supreme Court's assessment of the Twombly complaint to Form 11. Car accidents happen a lot, and often someone is negligent in them. The mere fact of a car accident, which is what Form 11 pleads, is relatively close to possible worlds in which the driver of the car was negligent. Similarly, the Court has to be saying the same thing about Swierkiewicz: when a middle-aged foreigner is fired by people from a different foreign country attempting to "energize" the company, it's sometimes due to national origin discrimination and age discrimination. Close enough.

Don't get me wrong: I'm not saying the Court assessed the probabilities correctly in Twombly. Who says that the world in which the Baby Bells have entered into an antitrust conspiracy is incredibly distant from the world in which 7 Baby Bells all exclude resellers from their networks, and all fail to compete in each others' markets? Nevertheless, I think the Supreme Court thinks courts can make such intuitive judgements reliably, and the purpose of Twombly is to give district courts the discretion to dismiss when the only "set of facts" under which the plaintiff wins is possible, but highly improbable.

Posted by Bruce Boyden at 11:47 AM | Comments (10) | TrackBack

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That's the deep question unanswered by last year's Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority's view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court's position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can't be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

Our results showed exactly that. Dissenters to the Court's view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield's work on “status collectivities," we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects' reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger." The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron's characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I'll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Posted by Dave Hoffman at 03:00 PM | Comments (2) | TrackBack

Should Courts Issue Unpublished Opinions?

NOTICE: This is an unpublished blog post. It may not be cited by any court or any party to any litigation.

A common practice for many courts is to issue unpublished opinions that may not be cited as precedent. These opinions are often short and consist of a few paragraphs. They are generally supposed to be limited to cases that can be resolved by clearly-established legal rules. According to one news article: "California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published. About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions." These statistics are staggering. Are there really so many cases that do not warrant having precedential value?

Unpublished opinions that may not be used for precedent raise some serious questions. Our legal system relies upon precedent, and we bristle when judges depart from precedent. Yet should we allow judges to say that some opinions are not precedent-worthy? Now that these cases are all readily available electronically, the argument that it is impossible to publish all opinions does not seem persuasive. Another argument is that it would overburden the courts if they couldn't write unpublished opinions, which are typically very short and hastily-written. If these opinions counted, the argument goes, then judges might feel compelled to spend more time researching and writing them. But wouldn't this be a good thing? Maybe it would yield better opinions. So by issuing an unpublished opinion, the court is basically saying: "Here's our decision. We don't think it's good enough to be considered as precedent, yet your case isn't worthy of our spending a lot of time to write such an opinion."

But what about judicial workload? That surely is a problem, but it still strikes me as fundamentally wrong for a court to issue a decision that it believes is not adequately researched or articulated. Perhaps courts don't believe this, but if an opinion is adequately researched and articulated, why not publish it and give it precedential value? And if the problem is excessive workload, then shouldn't there be another way to address it?

Fortunately, in federal courts the rules are changing. In 2006, the U.S. Supreme Court voted to allow the citation of unpublished opinions.

But the practice still remains alive and well in state courts.

When I was clerking in federal circuit court before the rule change, I was surprised at the number of unpublished opinions (called "memorandum dispositions" or "mem dispos" for short). In one case, I found a memorandum disposition that addressed and resolved an open question in the circuit -- yet because it was just a memorandum disposition, I couldn't cite to it or rely upon it. So the issue had been confronted in the circuit and resolved by a panel, but that panel struck me as being lazy and didn't want to bother to write a real opinion and resolve the issue in the circuit.

In another case, the government in its brief pleaded with the court not to write a memorandum disposition on a particular issue, as several other panels had done in the past. These previous memorandum dispositions came out in diametrically opposed ways, and the government wanted the issue resolved in the circuit.

I think that unpublished non-precedential opinions should be abolished. If a case involves any issue that is unresolved in any given court, the panel should address it with a fully-researched and reasoned opinion. This will make less work for future panels and less work for future litigants. It will also help make the law more clear and definitive. If a case involves a no-brainer issue that has clearly been resolved by the court in earlier cases, then just issue a short opinion saying as much. There's no reason why that opinion shouldn't be published or have precedential value.

So is there something I'm missing? Is there a compelling argument in favor of unpublished opinions?

Hat tip: Howard Bashman

Posted by Daniel J. Solove at 12:32 AM | Comments (4) | TrackBack

Jurisdiction and Textualism

I just posted a draft of a paper on SSRN. It is called "Jurisidiction and Textualism," and it is about the treatment by textualists of jurisdictional statutes, and what that treatment suggests both about textualism and about the broader debate over the relationship between Congress and the courts in crafting a jurisdictional regime. Here is the abstract:

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress’s authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress’s role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges—textualists and non-textualists alike—read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction.

Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that only their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction.

Textualism’s goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority—such as in the general federal-question statute—being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court’s textualists of jurisdictional statutes suggests that the textualists’ urge to constrain judicial power has sometimes trumped the textualists’ demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress’s instructions.

This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts’ authority to decline to exercise jurisdiction that Congress ostensibly has granted.

You can download the paper here. I welcome any comments.

Posted by Peter Smith at 10:15 AM | Comments (0) | TrackBack

Harry Potter and the Due Process Clause

Don't worry, no spoilers here.

I stayed up way past my bedtime last night finishing the final Harry Potter book. I found it very satisfying. But this is a law blog, and I am a geeky law professor, so the phenomenon I will note is how extensively these books develop the theme of procedural fairness -- a marvelous lesson for the children who are its target audience.

Time and again throughout the series, the Ministry of Magic that rules wizards in England falls far short of what we would consider the minimum of due process. There are repeated sham hearings that have the trappings of even-handed court proceedings, but they are rigged and hollow. In an earlier book (Harry Potter and the Order of the Phoenix, also the movie currently playing in theaters), Harry himself is accused of an infraction against wizarding rules; the Minister abruptly changes the time for his hearing before the Wizengamot -- a sort of legislature with judicial functions, it seems -- hoping that Harry's principal advocate, the wise Albus Dumbledore, will miss it. The same phenomenon happens constantly at Hogwarts, the wizarding school. Various teachers and headmasters make arbitrary and capricious decisions and issue unjust punishments.

Sometimes this sort of unfairness is perpetrated by the clear bad guys, the evil followers of the story's villain, Voldemort. More often, however, leaders of the Ministry of Magic or of Hogwarts are simply acting bureaucratically. They may not support Voldemort at all, but they treasure form over substance and obedience to the letter of the rules rather than any adherence to its spirit. Most of all they seek to preserve their own power against perceived threats -- often petty threats far less serious than the real dangers posed by Voldemort's followers. The fact that there is an official hearing, an examination of witnesses, and a vote provides no guarantee of substantial fairness.

Early in the first semester of my civil procedure course I plan to have the students read the classic procedural due process cases (Goldberg and Mathews) and think about the attributes that do -- and should -- constitute fair procedure. I think I will use the Harry Potter books as an example.

Posted by William McGeveran at 05:15 PM | Comments (5) | TrackBack

Sex, Laws, and Videotape (Genarlow WIlson Edition)

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year's Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence "a grave miscarriage of justice," but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge's proper role in such circumstances. But I am going to focus on an information law angle -- specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?

The events of the party were videotaped, and as ABC News Primetime reported last year, that tape became the core of the prosecution's evidence:

District Attorney David McDade said the videotape was critical to his case. "There is no doubt that without the videotape we would have to be relying on the statements of these young people, and that would have been a more difficult prosecution," he said.

But, as my friend Jessica Silbey has argued persuasively in a series of articles, videotaped evidence is not some sort of unvarnished and incontrovertible truth-telling mechanism; its meaning is in the eye of the beholder. And the jurors here beheld it this video quite differently from the way prosecutors intended. According to ABC, they voted to acquit Wilson of raping the 17-year-old very rapidly:

"I mean it wasn't even an hour [of deliberation on the rape charge]," said jury forewoman Marie Manigault. "We immediately saw the tape for what it was. We went back and saw it again and saw what actually happened and everybody immediately said not guilty."

So, the videotape became central to both the legal decisionmaking and the media reporting (ABC, for instance, portentously described "a portion of a tape obtained by 'Primetime'"), especially as the case has become a growing political and racial controversy. Not surprisingly, a lot of people have asked to see it, according to an Associated Press story:

[District Attorney] McDade said his office gave copies of the tape to some 35 parties that requested it, including The Associated Press, which received the tape late last month after making an open records request. Seven state lawmakers, several members of the public and numerous members of the media also received the tape.

McDade claims he had no choice under the state's "very clear" open records law, and a letter from the Prosecuting Attorneys' Council of Georgia supports his interpretation. But now U.S. Attorney David Nahmias has intervened with a statement of his own, saying that the tape constitutes child pornography and may not be distributed or even possessed -- and advising everyone with a copy of the tape to return or destroy it.

"These laws are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others, potentially for years to come, particularly if the images are placed on the Internet or otherwise broadly enter the public domain," Nahmias said.

Here's what's fascinating to me. The antagonists on both sides cite seemingly inflexible legal regimes. The child pornography law is said to leave no space for even the clearest public interest, such as letting the media examine the evidence in a case that has become a gigantic political and social hot button. The open records law is said to allow no leeway to suppress a sex tape that probably qualifies as contraband child pornography and definitely constitutes a grave privacy violation for the teenagers depicted. This lack of ambiguity in both regimes (and, by the way, in the statutory rape law too) is not a bug but a feature. These laws were designed to prevent evasion through exceptions. Now we are stuck with a pair of unpalatable alternatives.

The optimal solution might well be to allow access to the tape with strict limits on redistribution (perhaps requiring that it be viewed in the courthouse rather than distributing copies) or perhaps blurring the faces of all the persons involved. But most likely neither of these possible solutions satisfies either of the inflexible legal structures. The only way I see of avoiding the problem is for the U.S. Attorney to exercise prosecutorial discretion and allow this sort of limited access. But I'm not sure how likely that is to occur.

[Cross-posted at Info/Law.]

Posted by William McGeveran at 12:05 PM | Comments (6) | TrackBack

Piercing the Veil of Anonymous Bloggers

I'm delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, "there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach."

Personally, I don't need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a "show me your papers" internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model -- as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above -- and you really should see it -- you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

Second, I am pretty confident a law like South Korea's would be unconstitutional here. There is a clear right to anonymous speech under McIntyre v. Ohio Elections Commission. An influential district court case from 1997 (the web's early days) relied on McIntyre to strike down as overbroad a Georgia law banning pseudonymous internet communications. (This is one of many cases the ACLU has brought in defense of internet anonymity.)

Finally, there are many technical methods to increase the chances of remaining anonymous online, such as using proxy servers or onion routing. (Ethan Zuckerman summarizes them in this guide aimed at dissidents and published by Reporters Without Borders). A demand for a real name and ID number makes these tactics somewhat harder to use, but certainly not impossible for a determined anonymity-seeker. The result: while most of us who follow the rules would lose the realistic capacity to stay anonymous online, the truly dedicated cyberbully, slanderer, harasser, or spammer can still remain in the shadows. Indeed, it's not clear to me that a legal requirement to offer a (phony) name and ID number adds any real teeth against those with the knowledge and incentive to remain anonymous.

Without question, many in the US abuse online anonymity. They can cause real harm. So, are we just stuck with these abuses as the price we pay for free speech? Not entirely. There are more modest remedies available, and they are pretty much in place already. For one thing, individual sites are free to allow more or less anonymity as they see fit. Many ban anonymous comments. Many others, if they allow screen names or pseudonyms, still require registration. Lots of sites also guard against the prevalence of "Internet sociopaths and misogynistic freaks" by moderating their comments.

More fundamentally, in situations where a site does not choose to do any of the above, there is the John Doe subpoena. A complaint that states a reasonable claim against John Doe defendants for unlawful online speech usually will result in a judicial order that a web site or ISP provide available information about the speaker. Generally that information will include at least an IP address, and often the full name and postal address. Such data has been plenty for the recording industry and the government to identify defendants and proceed against them. I predict a similar outcome in the AutoAdmit case. (Indeed, Concurring Opinions' own Frank Pasquale recently found his name in use as a pseudonym for a blogger running a gripe site critical of a health care company; in that case the court has allowed the plaintiff to "pierce the pseudonymous veil" and discover the blogger's identity.) We may need some better procedures for discerning when such "piercing" on the basis of a complaint is appropriate, but I believe this doctrine will develop, just as it did in "corporate veil" cases. In that sense, we are evolving toward a model that allows pseudonymity, but rarely true anonymity.

That may not be so different from South Korea's approach in most cases. As I understand the new law there, large web sites must collect the information, but need not turn it over unless the victims sue. Except for a somewhat stronger mandate for collecting information, that is pretty similar to the John Doe subpoena. And since such subpoenas appear to have proven adequate in the US to identify speakers in most cases, this may not be as important in the real world as it first appears. That said, to the extent there are differences, leaving some breathing room for anonymity is a better fit with our free speech traditions.

Posted by William McGeveran at 04:42 PM | Comments (2) | TrackBack

Another AALS Call for Papers

This one is for my fellow civil procedure enthusiasts.

The AALS Section on Civil Procedure has issued a Call for Papers to be presented at the AALS Annual Meeting in New York on January 4, 2008. The topic for this year's program is "The Revolution of 1938 Revisited: The Role and Future of the Federal Rules." Here's the summary:

70 years ago, the Federal Rules changed the landscape of civil litigation. Procedure in the federal courts became uniform and adopted a flexible, notice-based model that contemplated liberal access to discovery. Over time, most states followed suit. Some have called this the Golden Age of Rulemaking.

What will the next 30 years of rulemaking look like? What should they look like? From pleading standards to discovery to summary judgment practice, there is no shortage of critics of the federal model. And, increasingly, questions are raised about the extent to which state practice should continue to follow the lead of the Federal Rules. States might adopt different practices out of a belief that the state and federal courts hear different types of cases and are designed to do different things. States might adopt different practices in a spirit of local experimentation, supplementing or even displacing the federal rulemaking process as the leader in innovation and reform. Or, states might simply depart from the Federal Rules model out of a belief that the federal model proceeds from flawed first principles. Different models of judicial federalism could support very dif ferent conclusions about the proper interaction between state rulemaking and federal rulemaking.

Sounds like a great topic! (And for all you civ pro skeptics out there, who think this all sounds mind-bogglingly dull, you truly don't know what you're missing.) More information below the fold.

The AALS Section on Civil Procedure will meet during the AALS Annual Meeting in New York City, from 10:30 a.m. to 12:15 p.m. on Friday, January 4, 2008. The topic for this year's program is "The Revolution of 1938 Revisited: The Role and Future of the Federal Rules." The Section is seeking 2-3 presenters for this program.

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Law teachers and other scholars who have an interest in speaking at this program are invited to submit manuscripts dealing with any aspect of the foregoing topic. A review committee consisting of Section officers will select two to three papers and will invite the author of each selected paper to make a presentation at the program. The panel may also include one to two persons selected to by Section Committee to comment on the topics raised in the selected papers.

If you are interested in presenting a paper, please submit a summary of not more than three double-spaced pages (e-mail preferred) by no later than Friday, August 31, 2007. In addition to the summary, you may also submit a complete draft of your paper. Please direct your submission to Robert Schapiro at rschapir@law.emory.edu.

Authors of selected papers will be notified by Friday, October 12, 2007.

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