Tagged: torts

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FAN 117.1 (First Amendment News) Martin Garbus Files Defamation Suit on Behalf of Pete Rose

WHEREFORE Plaintiff Peter Rose demands a money judgment against Defendant John Dowd for the amounts described herein and an award of punitive damages, together with costs and expenses, including attorneys’ fees, of this action, and such other and further relief as the Court deems just and proper. — Martin Garbus (pro hac vice pending)

Martin Garbus, a lawyer who has done his share of First Amendment defense work, now finds himself on the other side of the constitutional divide.  According to an ESPN news story, Mr. Garbus is representing Pete Rose in a federal defamation suit against “John Dowd, who oversaw the investigation that led to Rose’s ban from baseball, for claims Dowd made last summer that Rose had underage girls delivered to him at spring training and that he committed statutory rape.”

Martin Garbus

Martin Garbus

“The complaint,” says the ESPN story, “was filed today in U.S. District Court in Pennsylvania. It cites a radio interview last summer with a station in West Chester, Pennsylvania, in which Dowd said, ‘Michael Bertolini, you know, told us that he not only ran bets but ran young girls down at spring training, ages 12 to 14. Isn’t that lovely? So that’s statutory rape every time you do that.’ . . . “

“The lawsuit also cites an interview with CBS Radio in which Dowd said, ‘He has Bertolini running young women down in Florida for his satisfaction, so you know he’s just not worthy of consideration or to be part of the game. This is not what we want to be in the game of baseball.'”

“Rose denied Dowd’s accusations. Bertolini has said he never made such claims. Former commissioner Fay Vincent, who was deputy commissioner at the time of Rose’s ban, has said that he did not remember such allegations. .  . .”

Rose v. Dowd complaint here. The three claims for relief set out in the complaint are: (1) “Defamation per se“, (2) “Defamation”, and (3) “Tortious Interference with Existing or Prospective Contractual Relationship.”

 Additional News Stories:

  1. Randy Miller, Pete Rose suing John Dowd for statutory rape accusations,” NJ.com, July 6, 2016;
  2. Debra Cassens Weiss, Pete Rose sues former Akin Gump partner for radio show comments, ABA Journal, July 7, 2016;
  3. Brian Baxter, Pete Rose (and Marty Garbus) Sue Ex-Akin Gump Partner, Law.com, July 6, 2016; and
  4. Greg Noble, Pete Rose sues John Dowd over allegations he had sex with underage girls, WCPO9, July 6, 2016.

Biographical Snapshot:  Ever the maverick, Mr. Garbus has represented everyone from:

  • the ribald comedian Lenny Bruce (Garbus was co-coounsel with Ephraim London in People v. Bruce),
  • to a woman in a libel case brought against a Daily News columnist for allegedly claiming she faked a rape).
  • He was on the brief for the Appellant in Jacobellis v. Ohio (1964) and was counsel for Viking Press in the Appellate Division of the New York Supreme Court in which the court dismissed a libel suit against a novelist (see New York Times, December 16, 1982).

See generally:

  • Nat Hentoff, “First Amendment Lawyer Punished,” Nevada Daily Mail, April 11, 1996 (“Garbus . . . followed his conscience to help someone he believed had been terribly wronged by a columnist and his newspaper. Let this be a lesson to law school students with a conscience.”)
  • John Sullivan, “Columnist Wins a Suit On Articles About Rape,” New York Times, February 7, 1997 (“The woman’s lawyer, Martin Garbus, said that the judge’s conclusions were wrong and that the ruling could provide an opportunity for a successful appeal, though his client had not decided whether to pursue the case.” — The case was dismissed and no appeal was taken.)
  • Martin Garbus & Richard Kurnit, “Defamation in Fiction: Libel Claims Based on Fiction Should be Lightly Dismissed,” Brooklyn Law Review (1985)
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FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

* * * * 

Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

* *  *

A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

* *  *

Commentaries 

Georgetown Appellate Litigation Clinic Files Brief in 1-A Retaliation Case  Read More

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FAN 101 (First Amendment News) Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co.

Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full. — Paul M. Smith (cert. petition in Electronic Arts v. Davis)

Nothing in the Court’s opinion [in Zucchini] suggested that its analysis would have been different had the news broadcast been limited to a five- or ten- second excerpt . . . . — Brian D. Henri (brief in opposition in Electronic Arts v. Davis)

Lee Levine

Lee Levine

Lee Levine and Stephen Wermiel are at again — digging in Justices’ personal papers to reveal how the law of a First Amendment case came to be, replete with surprises and insights.

First they started with a law review article: “The Landmark that Wasn’t: A First Amendment Play in Five Acts,” Wash. L. Rev. (2013), which gave rise to several commentaries.

Then came a book: The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014). Now comes their latest work, “The Court & the Cannonball: An Inside Look,” American U. L. Rev. (forthcoming 2016).

In their latest work, Levine ( a seasoned media law lawyer & casebook author) teams up once again with Wermiel (law professor, Brennan Biographer & former WSJ reporter) to dig up the inside history of another First Amendment case — this time Zacchini v. Scripps-Howard Broadcasting Co. (1977), a 5-4 ruling.

The Facts: In 1972, Hugo Zucchini performed as a “human cannonball” at the Geauga County Fair in Burton, Ohio. In his act, Zucchini was shot out of a cannon and into a net 200 feet away. His performance lasted 15 seconds.  During one of these performances, a Scripps-Howard Broadcasting Co. freelance reporter attended the fair, replete with a movie camera. Petitioner noticed the reporter and asked him not to film the performance. Respondent honored the request that day but returned the following day and videoed the entire act. This 15-second film clip was shown on the evening news, together with favorable commentary. Petitioner brought a tort action (right of publicity) for damages and Respondent raised a First Amendment defense, among other things.

See “Zucchini: Human Cannonball” documentary trailer

Prof. Stephen Wermiel

Prof. Stephen Wermiel

The issue in the case was: Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer’s state-law right of publicity?

→ The Supreme Court Lawyers:

  • John G. Lancione argued the cause and filed a brief for Petitioner.
  • Ezra K. Bryan argued the cause for Respondent.

→ Judgment: 5-4 in favor the Petitioner. Justice Byron White wrote the majority opinion and Justices Lewis Powell and John Paul Stevens each wrote separate dissents.

→ Enter Levine & Wermiel: Here are a few excerpts from their forthcoming article:

“Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court Justices’ available papers shows that the Court did not view the case as presenting the type of claim that has become prevalent today.”

Hugo Zacchini; human cannon ball; in position for great blast off.

Hugo Zacchini; human cannon ball; in position for great blast off.

“For the Supreme Court, the internal papers indicate the case was about the right of a performer/producer to control the display of his entire act. The Court was not focused on the more contemporary claim that athletes, celebrities, and others have a right to control the use by anyone else, especially for commercial purposes, of their name or their visual image. Nor did the Court’s ruling address the First Amendment issue raised in contemporary cases when a name or likeness is used in a creative work or other public communication. . . . .”

Conclusion: “If nothing else, the record of the Court’s deliberations in Zacchini appears to support the view that that decision does not purport to speak to the viability of a First Amendment-based defense to the kind of “right of publicity” claims asserted by contemporary plaintiffs seeking compensation for the use of their name, likeness, or even their performance, in the context of a video game, sporting event, news report or other creative work produced by someone else. To the contrary, the Court’s deliberations in Zacchini suggest that, at least in contexts where the asserted “right of publicity” is not akin to a claim for common law copyright, there is no basis to depart from traditional modes of First Amendment analysis and engage instead in the kind of ad-hoc balancing of state-created and constitutional rights . . .”

Judge Srinivasan on Free Speech Read More

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Injured Kids, Injured Parents and Tort Law

When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.

Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.

I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.

In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.

I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.

 

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Take that Constitution and…

…forget about it.  I understand that some folks must continue to fight Constitutional battles, inside and outside the courtroom, even if just to try to hold the line against Supreme Court precedents and federal legislation that encroach on the most basic interests and freedoms people need. Note that I can mention these without reference to rights.  Rights – another term that legal academics of all stripes tend to obsess about to the point of distraction from considering the very goods that recognized rights foster and protect.  The goods are not the rights.  Rights shelter goods and interests.  If they are the only form of cover your adversaries will acknowledge, then you better pitch a rights tent.  If representing the good or interest as covered by a right does not help further the good or interest, then don’t use the representation.  Rights and “rights” are neither objectively problematic nor objectively wonderful.  What’s important is which interests and goods we decide to foster collectively,  how we decide this, and whether law is a suitable social method for fostering any given worthwhile interest or good.  If law is an appropriate mechanism for the task, then there are interesting empirical questions about whether the law should be strongly interventionist, requiring very specific conduct to facilitate and foster these goods or interests, or whether it should be more subtle, creating background institutions and norms which increase the chance that these goods and interests will flourish.

Now, consider areas of law that start not from rights but from duties, areas like tort (publicly created duties, originating in common law or in legislation) or contracts (privately created duties, originating at the nexus of individual agreements and legal endorsement of certains types of agreement but not others – some agreements are endorsed or disqualified by courts, some by legislatures).  Not coincidentally, torts, contract, and restitution have historically been grouped together as the law of obligations, in both Anglo and Continental traditions.  And not coincidentally, these bodies of law presuppose interconnectedness and relationships. The foundational or mythic state of nature that animates contracts, torts, and restitution is one that assumes that people are always and inevitably embarking on relationships, sometimes on purpose sometimes accidentally.  But whether they mean to get involved with each other or not, whether they set out to affect other people or not, people connect.  Connection is basic.  Then the question becomes, which sort of connections engender which sorts of obligations?

Obviously, one can argue for thinner and thicker versions of legal obligation and sometimes such arguments rely on philosophical theories like liberalism (neo or otherwise) or conservativism (neo or otherwise).  But it is interesting to note that reflective legal scholars and lawyers engaged (knowingly or not) in normative jurisprudence regarding the law of obligations actually tend not to invoke the usual political philosophies that undergird and drive so much of the discourse about the Constitution.  A hypothesis about what why that’s so: if our starting point for thinking about and creating law is connection – the inevitable ties that will arise among social creatures – our starting point is already complicated and textured in ways that cry out for more particularistic arguments than those generated by wholesale political theories of any stripe.  Political theories that start from the individual rather than the connectedness of individuals can be more general and less nuanced because it is easier to oversimplify the individual than it is to oversimplify connection.  Likewise, areas of legal discourse and practice that answer to broad political theories tend to obscure particularities that matter tremendously in the course of actual lived experiences.

Mary Anne Franks’s discussion of creepshots and outing anonymous bloggers reveals the significance of starting from assumptions of connection rather than assumptions of individuality.  In our culture, the rhetoric of free speech and consent is premised on a particular Constitutional background.  The minute somebody invokes the phrase “free speech” they will be heard as invoking the First Amendment and the entire kit and caboodle of the Constitution.  This then spills over to and colors how “consent” and “privacy” get discussed – they are understood as subordinate matters, less important than and bounded by the explicitly Constitutionally acknowledged good of free speech.  It is ironic that these are the terms of the debate about an episode in an environment so often characterized as thoroughgoingly social – the web and websites where people go to interact.  If we all forgot about the Constitution, very different first questions might come to mind when thinking about creepshots. Namely, who is affected by the site and how?  What sort of connections does it foster or stunt?  Are these connections we collectively should concern ourselves with? Should we use law to structure the connections that inevitably arise from activity on the web?  If so, what do the parties (intended or unintended)  in  these connections owe to one another, morally, ethically, and legally?

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Iqbal Keeps Spreading

I previously discussed how the Supreme Court’s Iqbal decision is going to have a big impact on federal civil litigation.  Jaya Ramji-Nogales suggested that maybe it won’t have such a big impact after all.  It’s still too early to say definitively who’s right, but take a look at this — Iqbal applied to a slip-and-fall case!

For those just tuning in, the Supreme Court’s decision last term in Ashcroft v. Iqbal upended some long-standing rules of pleading in civil procedure.  The previous understanding was that a civil complaint — the document that by which the plaintiff starts a civil case — just had to give the defendant a general notice of what the case was about.  It didn’t have to go into specifics or detail.  If the plaintiff says, “I worked for the defendant and the defendant fired me because of my race or religion,” that states a sufficient claim.  The plaintiff doesn’t have to say how she knows what the defendant’s motives were.  Sure, the defendant is eventually entitled to that information, but it doesn’t have to be in the complaint.  That’s what discovery is for.

Iqbal throws the rules into confusion.  Under Iqbal, the trial court gets to disregard allegations it regards as conclusory (a term the Supreme Court didn’t clearly define) and make some judgment about whether the complaint is sufficiently plausible to require a response.  Under this new regime, it’s far less clear that a one-sentence allegation about why the plaintiff got fired would be sufficient without some further allegations that show some evidentiary support.  Courts have been dismissing all kinds of cases on the basis of insufficient allegations, such as this dismissal of a case in which plaintiff alleged that she took the defendant’s drug and suffered a terrible injury as a result, which got dismissed because, in the court’s opinion, the plaintiff didn’t sufficiently allege how she knew the drug caused her injury.

Now we have the ultimate in Iqbal dismissals — a dismissal in a slip and fall case!  Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store.  Insufficient! says the district court.  Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery? 

This is what’s wrong with Iqbal.  Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose.  But what does it matter if every last point is in the complaint?  The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible.  We don’t need any more to get started.  There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment.

As this case shows, Iqbal is going to send us back to the era of endless wrangling about exactly what has to be in the complaint.  We’re going to waste a lot of time polishing the pleadings.  And apart from everything else, it’s going to cause years of confusion.  Before Iqbal I could at least give a confident judgment about whether a complaint was sufficient.  Now I have no idea.  If people can’t even get a slip-and-fall case into court, we’re in trouble.

Update: As Jaya points out in the comments, the post attributed to her above was actually a post by Adam Steinman, transmitted to Concurring Opinions by Jaya.  Thanks for this correction and sorry for the error.

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RECAP Already Proving Its Power?

A couple days ago I blogged about RECAP, a system that aims to enhance government transparency by increasing access to court documents. RECAP does this by making it easy for people to share PACER documents after they have paid for them. Today I read that a judge has vacated “legally significant” opinions in a tort case involving trains, high voltage wires, and teens. The case went to 3rd Circuit and was remanded. The District Court Judge vacated the opinions and directed Westlaw and Lexis/Nexis to remove them from their databases. One troubling matter is that it appears the motion to seal is not available. In addition, the decision to vacate the decisions and remove them appears to have been part of a confidential settlement agreement. I am not sure what the rules are for withdrawing a published opinion. There are probably good ones and good procedures for such a move. Then again it may be part of judge’s broad discretionary powers. Here, the way it happened has caused some concern.

In fact, one blogger has decided to post links to many of the vacated opinions, and, yes, RECAP allowed him to do that. In his view, “a court can ever truly ‘unpublish’ a decision, and that law is made every time a court decides any issue.” I am not so sure that is correct. I do think, however, that courts should be more clear as to why they take such actions. Insofar as systems like RECAP help keep government more open and prevent the expunging of records, that is perhaps an unexpected bonus feature to the transparency project. It preserves some truth.

If anyone has information and thoughts about the rules, procedures, and theories allowing a judge being able to unpublish an opinion, please share them.