Category: Tort Law


FAN 83.1 (First Amendment News) Momentum Builds in Right of Publicity Case — Volokh & Rothman File Amicus Brief Urging Review

Professor Jennifer Rothman

Professor Jennifer Rothman

The momentum is building in Electronic Arts, Inc. v. Davis, the Right of Publicity case in which Paul M. Smith recently filed a cert. petition. In what may be shaping out to be the most important First Amendment case of this Term, Smith has just received some impressive support by way of an amicus brief to be filed later today by UCLA Law Professor Eugene Volokh and Loyola, Los Angeles, Law Professor Jennifer Rothman. Twenty-nine noted scholars signed onto their brief (see listing below).

If ever there was cert-worthy case — a case in which the cert. stars seem to be aligning — the EAI case is the one. The circuit and state courts are all over the conceptual map with assorted and conflicting tests being used in the SecondThirdFifthSixthEightNinthTenth, and Eleventh Circuits and in the FloridaKentucky, and Missouri Supreme Courts. Confusion abounds, and this as asserted First Amendment rights twist in the varying doctrinal winds.

Enter Volokh and Rothman, two scholars quite familiar with this intersection of tort law and the First Amendment.  Here is how they open their brief: “The right of publicity affects a vast range of fully constitutionally protected speech. Right of publicity lawsuits are routinely brought over books, films, songs, paintings and prints (in traditional media or on T-shirts or cards), and video games that mention someone’s name, likeness, or other ‘attributes’ ‘of identity.’ The First Amendment must often protect such references to people, whether in news, entertainment, or art. Courts throughout the country have therefore recognized First Amendment defenses in many right of publicity cases involving expressive works.” (notes omitted)

“Unfortunately,” they add, “there are now five different First Amendment tests that lower courts use in right of publicity cases (setting aside cases involving com- mercial advertising, which is less constitutionally protected than other speech). Unsurprisingly, these different tests often lead to inconsistent results, which leave creators and publishers uncertain about what they may say.” (note omitted)

Professor Eugene Volokh (credit: UCLA Magazine)

Professor Eugene Volokh (credit: UCLA Magazine)

Because of the confusion in the lower courts, Volokh and Rothman argue that this “state of uncertainty is especially dangerous not for major enterprises such as Electronic Arts, but for smaller authors and publishers that lack the money to litigate such cases (even when their First Amendment defense is very strong). Many such small speakers are likely to be chilled into following the most restrictive standards, and the most restrictive interpretations of those (often vague) standards. If this situation is left uncorrected by this Court, a wide range of expression in movies, plays, novels, songs, video games, documentaries and more will be deterred.”

The rulings in Davis v. Electronic Arts, Inc. (9th Cir. 2015) and Keller v. Electronic Arts, Inc. (9th Cir. 2013), they stress, “also treat the First Amendment defense to the right of publicity as weaker than the First Amendment defense to trade- mark law. This too merits this Court’s review.”

Below is the list of scholars who signed onto the amicus brief:

  1. Jack Balkin
  2. Barton Beebe
  3. Erwin Chemerinsky
  4. Stacey L. Dogan
  5. Jay Dougherty
  6. Gregory Dolin
  7. Eric M. Freedman
  8. William K. Ford
  9. Brian L. Frye
  10. William T. Gallagher
  11. Rick Garnett
  12. Jon M. Garon
  13. Jim Gibson
  14. Eric Goldman
  15. Stacey M. Lantagne
  16. Mark A. Lemley
  17. Raizel Liebler
  18. Barry P. McDonald
  19. Tyler Ochoa
  20. Aaron Perzanowski
  21. Lisa P. Ramsey
  22. Kal Raustiala
  23. Martin H. Redish
  24. Betsy Rosenblatt
  25. Steven H. Shiffrin
  26. Christopher Jon Sprigman
  27. Geoffrey R. Stone
  28. Rebecca Tushnet
  29. David Welkowitz

Gifford and Jones on Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law

My colleague Donald Gifford (whose book we featured here) and his co-author sociologist Brian Jones have an important new piece up on SSRN entitled “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law.” The piece is provocative and original: it may the first paper to use cross-state comparisons in an empirical study of the impact of race, income inequality, regional variations, and political ideologies on tort law.

Here is the abstract:

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.

Air Traffic Control for Drones

8435473266_16e7ae4191_zRecently a man was arrested and jailed for a night after shooting a drone that hovered over his property. The man felt he was entitled (perhaps under peeping tom statutes?) to privacy from the (presumably camera-equipped) drone. Froomkin & Colangelo have outlined a more expansive theory of self-help:

[I]t is common for new technology to be seen as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great – or even extant. We therefore suggest measures to reduce uncertainties about robots, ranging from forbidding weaponized robots to requiring lights, and other markings that would announce a robot’s capabilities, and RFID chips and serial numbers that would uniquely identify the robot’s owner.

On the other hand, the Fortune article reports:

In the view of drone lawyer Brendan Schulman and robotics law professor, Ryan Calo, home owners can’t just start shooting when they see a drone over their house. The reason is because the law frowns on self-help when a person can just call the police instead. This means that Meredith may not have been defending his house, but instead engaging in criminal acts and property damage for which he could have to pay.

I am wondering how we might develop a regulatory infrastructure to make either the self-help or police-help responses more tractable. Present resources seem inadequate. I don’t think the police would take me seriously if I reported a drone buzzing my windows in Baltimore—they have bigger problems to deal with. If I were to shoot it, it might fall on someone walking on the sidewalk below. And it appears deeply unwise to try to grab it to inspect its serial number.

Following on work on license plates for drones, I think that we need to create a monitoring infrastructure to promote efficient and strict enforcement of law here. Bloomberg reports that “At least 14 companies, including Google, Amazon, Verizon and Harris, have signed agreements with NASA to help devise the first air-traffic system to coordinate small, low-altitude drones, which the agency calls the Unmanned Aerial System Traffic Management.” I hope all drones are part of such a system, that they must be identifiable as to owner, and that they can be diverted into custody by responsible authorities once a credible report of lawbreaking has occurred.

I know that this sort of regulatory vision is subject to capture. There is already misuse of state-level drone regulation to curtail investigative reporting on abusive agricultural practices. But in a “free-for-all” environment, the most powerful entities may more effectively create technology to capture drones than they deploy lobbyists to capture legislators. I know that is a judgment call, and others will differ. I also have some hope that courts will strike down laws against using drones for reporting of matters of public interest, on First Amendment/free expression grounds.

The larger point is: we may well be at the cusp of a “this changes everything” moment with drones. Illah Reza Nourbakhsh’s book Robot Futures imagines the baleful consequences of modern cities saturated with butterfly-like drones, carrying either ads or products. Grégoire Chamayou’s A Theory of the Drone presents a darker vision, of omniveillance (and, eventually, forms of omnipotence, at least with respect to less technologically advanced persons) enabled by such machines. The present regulatory agenda needs to become more ambitious, since “black boxed” drone ownership and control creates a genuine Ring of Gyges problem.

Image Credit: Outtacontext.


Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.


Child Safety, Part I

Parents: Do you invest more in your child’s safety than your own? Less? Roughly the same amount?

I’ve been pondering these questions lately. I have numerous friends who have purchased safer cars once they became parents, or suddenly took an interest in the finest of fine print on warning labels. These anecdotes suggest that we invest more time and money in child safety compared to adult safety.  Interestingly, more rigorous empirical examinations support these anecdotes. Those data suggest that parents invest about twice as much in protecting children as they do in protecting themselves, even when both are facing the same probability of experiencing the same harm. Parents are not alone in this preference. Both parents and nonparents appear to want governments to invest about twice as many resources in protecting children as adults. Here’s some of the data:


Readers: Does this ring true?

Stay tuned for what these preferences might mean for tort law…


Vaccination Negligence

I thought I’d offer some thoughts on an issue that is starting to get attention:  Should parents who choose not to vaccinate their children against standard childhood illnesses (measles, mumps, whooping cough) be held liable if their child makes someone else’s child sick with one of these diseases?  For purposes of this discussion, let’s make two assumptions.  First, the choice not to vaccinate was not made for religious reasons.  (That presents a more complex problem.)  Second, there is no contributory negligence (in those jurisdictions) or significant comparative negligence (in jurisdictions that bar recovery when plaintiff is more negligent than defendant) by the parents of the sick child.

The most plausible factual scenario goes something like this.  Plaintiff’s child is too young to be vaccinated fully against a disease or cannot be vaccinated for some unavoidable reason.  This child is exposed to defendant’s child, who is old enough for full vaccination but was not given vaccine and is a host for the disease.  The choice not to give vaccine is made because of concern about the risks that vaccines pose, the belief that they increase the chance of becoming autistic, or some other non-religious reason.Now the question that will generate the most controversy is whether parents are negligent for not vaccinating their child under these circumstances.  I want, though, to focus on how the causation issue would play out.  How would a plaintiff show that exposure to defendant’s child was the cause of the disease?

Here we face an ironic problem.  One thought behind vaccination is “herd protection.”  The idea is that if everyone in a given population who can be inoculated is inoculated then it is far less likely that those who cannot get vaccinated will get sick.  (You can argue that those who are not vaccinating are free riding on those who do.)  When it comes to legal liability, though, herd protection favors those who choose not to vaccinate.  The more children there are like that, the harder it will be for a plaintiff to show but-for cause with respect to any individual child.

How should courts deal with that?  Is the answer that these claims should be viable when a plaintiff can prove that only one child could have exposed his or her child to measles?  Or should we shift the burden of proof to defendants?  Is this a Summers v. Tice situation (at least if we could narrow culpability to a few children)  That question depends, in part, on how bad we think not vaccinating is.  Generally the more egregious the wrong, the more likely we are to extend the scope of causation to hold the wrongdoer liable.

Anyway, I’m sure this will be litigated at some point, and it’s a topic to watch.


Sports, Player Protection, and of course, Money

The attention to the way football head injuries affect players at all levels of the game is good. Whether the game as it is loved today can persist, I leave to others. But as the NFL has asserted that it wants to protect its players, the question of injury and health beyond head injuries struck me as a good one. I love football. I grew up with hard-nosed, crazy players (Raiders fan even during the abysmal last twenty plus years of dubious management). But with the evidence that these Sunday circuses put players at so much risk, I hope that the league and fans can find ways to mitigate the long-term harms of the sport. As Arian Foster recently pointed out, Thursday night games are not geared to protect players. Quite the opposite. They generate large revenue and are not going away. Yet it seems that a solution is at hand.

Use the bye-week teams to play on Thursday nights. With some juggling, the teams could be set up so that if a team is on a bye week, they play on Thursday, and then they again would have nine days rest. That should make for fewer injuries overall and a better post-season. Others may have written about this option (and a good friend had made this argument in the past but not to me). There may be fewer Thursday night games. But smart folks at the NFL should be able to figure out how to maximize the games, while still making money for the league and the players. Some may ask whether all long-term injuries can be mitigated. I doubt that. Still, if lawsuits persist, football, soccer (more contact and head injuries than one might think), and many contact sports may have to shift their rules or find that they can’t attract the best athletes. Hmm a world of basketball, extreme sports, and curling. Maybe I could get into that.


Privacy and Data Security Harms

Privacy Harm 01

I recently wrote a series of posts on LinkedIn exploring privacy and data security harms.  I thought I’d share them here, so I am re-posting all four of these posts together in one rather long post.


“It’s just a flesh wound.”

Monty Python and the Holy Grail

Suppose your personal data is lost, stolen, improperly disclosed, or improperly used. Are you harmed?

Suppose a company violates its privacy policy and improperly shares your data with another company. Does this cause a harm?

In most cases, courts say no. This is the case even when a company is acting negligently or recklessly. No harm, no foul.

Strong Arguments on Both Sides

Some argue that courts are ignoring serious harms caused when data is not properly protected and used.

Yet others view the harm as trivial or non-existent. For example, given the vast number of records compromised in data breaches, the odds that any one instance will result in identity theft or fraud are quite low.

Read More


Reynolds v. Texas & Pacific Railway Company

In reading Ken Abraham’s excellent article on “Self-Proving Causation,” I was introduced to a delightful Louisiana case captioned above.  Plaintiff and his family were at a station to board a train.  The train was delayed until 2AM, and to get from the station to the platform the passengers had to go down a set of stairs without a railing or lights. When the train arrived, passengers were told to “hurry up” because it was running behind schedule.  Plaintiff’s wife, who was described as “a corpulent woman, weighing two hundred and fifty pounds,” fell and broke her leg.

The railroad argued that ‘but for” cause was not established, since plaintiff’s wife could have fallen in the same way in broad daylight.  The Court rejected this argument:

[W]here the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

This is a sound explanation of a kind of “res ipsa loquitur” for causation that was subsequently adopted by other courts.  I was also interested to learn that corpulent was used as a noun, as the opinion later says that plaintiff’s wife was “a corpulent, though not infirm.”  Anyway, the cite is 37 La. Ann. 694 (1885).


Facebook’s Model Users

DontAnthropomorphizePeopleFacebook’s recent pscyhology experiment has raised difficult questions about the ethical standards of data-driven companies, and the universities that collaborate with them. We are still learning exactly who did what before publication. Some are wisely calling for a “People’s Terms of Service” agreement to curb further abuses. Others are more focused on the responsibility to protect research subjects. As Jack Balkin has suggested, we need these massive internet platforms to act as fiduciaries.

The experiment fiasco is just the latest in a long history of ethically troubling decisions at that firm, and several others like it. And the time is long past for serious, international action to impose some basic ethical limits on the business practices these behemoths pursue.

Unfortunately, many in Silicon Valley still barely get what the fuss is about. For them, A/B testing is simply a way of life. Using it to make people feel better or worse is a far cry from, say, manipulating video poker machines to squeeze a few extra dollars out of desperate consumers. “Casino owners do that all the time!”, one can almost hear them rejoin.

Yet there are some revealing similarities between casinos and major internet platforms. Consider this analogy from Rob Horning:

Social media platforms are engineered to be sticky — that is, addictive, as Alexis Madrigal details in [a] post about the “machine zone.” . . . Like video slots, which incite extended periods of “time-on-machine” to assure “continuous gaming productivity” (i.e. money extraction from players), social-media sites are designed to maximize time-on-site, to make their users more valuable to advertisers (Instagram, incidentally, is adding advertising) and to ratchet up user productivity in the form of data sharing and processing that social-media sites reserve the rights to.

That’s one reason we get headlines like “Teens Can’t Stop Using Facebook Even Though They Hate It.” There are sociobiological routes to conditioning action. The platforms are constantly shaping us, based on sophisticated psychological profiles.

For Facebook to continue to meet Wall Street’s demands for growth, its user base must grow and/or individual users must become more “productive.” Predictive analytics demands standardization: forecastable estimates of revenue-per-user. The more a person clicks on ads and buys products, the better. Secondarily, the more a person draws other potential ad-clickers in–via clicked-on content, catalyzing discussions, crying for help, whatever–the more valuable they become to the platform. The “model users” gain visibility, subtly instructing by example how to act on the network. They’ll probably never attain the notoriety of a Lei Feng, but the Republic of Facebookistan gladly pays them the currency of attention, as long as the investment pays off for top managers and shareholders.

As more people understand the implications of enjoying Facebook “for free“–i.e., that they are the product of the service–they also see that its real paying customers are advertisers. As Katherine Hayles has stated, the critical question here is: “will ubiquitous computing be coopted as a stalking horse for predatory capitalism, or can we seize the opportunity” to deploy more emancipatory uses of it?  I have expressed faith in the latter possibility, but Facebook continually validates Julie Cohen’s critique of a surveillance-innovation complex.