Category: Tort Law


Assumption of Risk and Football

120px-Wilson_American_footballThe NCAA headquarters is across the street from my school.  In the lobby, you will find a life-size sculpture of the “flying wedge,” which was a popular football play at the turn of the 20th century.  Basically, all of the offensive linemen linked arms and the running back just followed behind them.  It worked really well, except that lots of linebackers ended up with broken necks after being hit by the full force of many men. Indeed, there were so many fatalities caused by the flying wedge that college football was on the verge of being abolished.  That’s why the NCAA was formed.  Teddy Roosevelt, convinced that games like football were necessary to inspire manly virtues, got a group of leading college presidents (including Woodrow Wilson at Princeton) together and urged them to stave off these calls by forming an athletic association that would promulgate limited safety rules (such as banning the flying wedge).

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Qualified Immunity Reform

Last month I wrote about how the current state of qualified immunity doctrine troubled me for a reason that I could not articulate.  After working through some of the cases on damage actions for official misconduct, I think I know what the problem is.

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Negligent Corpse Mishandling

113px-The_death.svgOne of my favorite exotic torts (especially as we reach the end of the semester) is the negligent mishandling of corpses.  This cause of action constitutes an exception to the principle that recovery for the negligent infliction of emotional distress is limited to those who observe an accident in which someone close to them is injured or killed. Under the Restatement (Second):  “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.”  Classic examples would include spilling the body from the casket or putting the wrong one in the grave.

Of course, one could say that this is a claim by the deceased for their interest in the proper disposition of their remains that is being brought by the estate.  But it probably makes more sense to think about this as an emotional distress claim of the living that is just one step removed from witnessing a death.


Qualified Immunity

Students who are looking for paper topics sometimes ask me where I get my ideas.  The creative process is mysterious.  If I really knew how to be creative, I’d be an inventor or a scientist.  Nevertheless, there are some tendencies that I can identify.  First, ideas can develop organically from a prior project.  In other words, while working on something you come across something else interesting and get an idea.  Second, ideas can form in response to a specific event (a new case or statute) that gets you exercised.  Third, there may be something that bugs you or feels wrong.  Then you explore that topic and discover something new.

With respect to the last of these categories, I’ve long been troubled by the state of qualified immunity doctrine. This is a subject of enormous practical importance for anyone seeking to sue public officials for violations of civil rights or other injuries.  Most of the rules that govern these suits were made by judges in just the last 30 years and have almost no connection to historical practice or precedent in the sense that they give far greater deference to government wrongdoing than was true in the past.  Strangely enough, this does not seem to have aroused much sustained academic criticism (at least as far as I can find).  So now I’m poking around to see if I should write something about this.  Perhaps my hunch or feeling will turn out to be without foundation.  We’ll see.


Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan

Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.”  Why?  Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments.  The department suspects that some of the posters could be department employees.  Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.”  The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.

The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials.  Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods.  It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.”  Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors.  It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”

Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves.  We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job.  Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.”  Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece.  Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007.  I wonder what the Austin ACLU thinks now.

H/T Slashdot for the story


Health care systems kill people. So what?

As the debate over health care reform slogs on, a particular kind of argument has become quite familiar.  It goes something like this:

Health care system X is a bad system because it kills people.

In support of this assertion, we are then treated to a set of anecdotes about how this or that person died as a result of this or that health care system break down.  Hence, we see critics of Obama’s proposals trotting out horror stories about how NHS bureaucracy resulted in the death of this or that Briton’s loved ones.  Likewise, we see supporters of health care reform unearthing heartbreaking stories of how the American patchwork of private insurance and Medicare or Medicaid killed off dad or mom.  My question is, “So what?” Read More


Breaching a Child’s Confidentiality

the-lost-childOver at the NYT blog is an interesting story about a British writer (Julie Myerson) who has published a memoir about her son’s drug addiction (The Lost Child).  Her 20-year old son has criticized the publication of the book. According to the Telegraph (UK):

The 20-year-old said: “What she has done has taken the very worst years of my life and cleverly blended it into a work of art, and that to me is obscene.

“I was only 17, I was a confused teenager, I was too young really to know who I was or what was happening.

“What she describes in her book are a series of incidents, it’s not who I am and I find it very sad that she feels the need to tar me with the ‘drug addict’ brush.

“She’s been writing about me since I was two, and, quite frankly, I’m not surprised by anything she does any more.

The NYT Blog asks:

Is it inappropriate and even harmful to expose the private lives of minor children, in particular? What privacy lines should be observed, if any, in writing about family members and others?

It contains responses from four people, Alison Gopnik (a psychology professor), David Matthews (author), Melanie Gideon (author0, and Michael Greenberg (author).  For example, Author David Matthews writes:

Nothing is off limits as far as I’m concerned. Whether an author wants to risk fraying familial and social ties in the pursuit of the truth (as they see it) is a question left up to the writer.

Matthews’ response strikes me as rather extreme. In Britain, family members owe each other duties to keep private information confidential. In the US, the breach of confidentiality tort applies to doctors, lawyers, and others, but hasn’t been extended to friends and family.  Perhaps it should be.

According to the Telegraph article, Myerson’s son said:

“I even consulted a lawyer to try to stop it, but was told there wasn’t much I could do, so I made her take out the part where she said I was selling drugs to my 12-year-old brother, which was one of her fantasies.

I’m surprised that he was advised the law didn’t protect him, since the book was published in Britain and he’d likely have a decent case under British precedent.

The Myerson case is increasingly becoming more common.  Numerous bloggers are chronicling the lives of their children online, posting photos and a day-by-day account of their lives.  What happens when these children grow up and resent having their entire childhood permanently recorded for the world to see?

Should family members owe each other a duty of confidentiality?  Should parents write about a child’s life without that child’s consent?

Hat tip: PogoWasRight


Can You Be Sued for Unmasking an Anonymous Blogger?

mask1A model named Liskula Cohen was being attacked on a blog called Skanks in NYC.  The author of the Skanks blog was anonymous.  Kashmir Hill reports:

Cohen started pursuing the defamation suit against the anonymous ‘Skanks’ blogger in January after discovering the site, on which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her, taken from various websites. Since Cohen needed the identity of the blogger in order to file the lawsuit against her, a judge in Manhattan granted Cohen’s request to force Google to reveal the e-mail address and IP address of the alleged defamer.

Cohen has since dropped her $3 million lawsuit.  The unmasked blogger — Rosemary Port — plans to sue Google for $15 million for breaching its fiduciary duty to defend her anonymity.

Over at CyberSLAPP, a website maintained by EFF (disclosure: I’m on EFF’s advisory board), ACLU, CDT, EPIC, and Public Citizen, they have posted documents from the case, including the court’s order to Google to unmask the author of Skanks.

CyberSLAPP seeks to combat frivolous lawsuits to reveal another’s identity:

CyberSLAPP cases typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a frivolous lawsuit just so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them.

The Skanks in NYC raises a lot of interesting issues.  I’ll tackle a few in this post.

1.Was Cohen’s lawsuit frivolous? Cohen might have a decent defamation lawsuit, but she subsequently dropped it when she found out Cohen’s identity.  This behavior indicates she was using the lawsuit only to unmask the blogger.  I agree with CyberSLAPP that such a practice should be restricted.

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Traditional v. Economic Analysis

wise-teachingsTo debate over traditional versus economic analysis in law (aka as fairness v. welfare, deontology v. efficiency and normative v. utilitarian), in the coming law review submission season, I’ll submit evidence from torts opinions of Judges Benjamin Cardozo and Richard Posner (I reported other aspects of this research here and here).

Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and many prescribe its use, especially in tort law, where such analysis is most successful. Skeptics question the method’s descriptive accuracy and normative appeal, compared to traditional legal analysis, also making particular contributions to tort law.

While scholars use theoretical, philosophical and doctrinal techniques to defend positions, my new Article’s novel evaluation considers how the methods fare in opinions of two judicial exemplars of the contending conceptions: Cardozo, quintessential traditionalist, and Posner, avatar economist.

Comparative analysis of those opinions, the most ubiquitous in current Torts casebooks, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law. Selections from my Article’s Introduction follow.

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