August 23, 2004


Comments are officially closed, as is this weblog! Thank you so much for your patronage, praise, and criticism. If and when I resurface, it will be elsewhere. If you need to get in touch with me in the interim, you may e-mail me at the address in the sidebar.

|The Curmudgeonly Clerk|

Posted by Curmudgeonly Clerk at 06:29 PM | Comments (0)

Lone Star State(s)

Vasan Kesavan and Michael Stokes Paulsen recently wrote a law review article advocating that Texas split into five separate states, a power that Texas was granted when it joined the union. They have now turned this article into a Wall Street Journal editorial. Both publications just goes to show that both the WSJ and law reviews have too much space to fill and too little quality content these days.

The motivation for this Texan multiplication strategy is entirely political. As Kesavan and Paulsen write in their law revie article:

Needless to say, five "mini-Texases" would give today's Texans and tomorrow’s mini-Texans significantly more clout in the national political arena. Think of it: Ten Senators (hopefully, all conservative Republicans, but not necessarily or perpetually so) instead of a meager two, who really care about the Lone Star State!

Although the excerpted language, perhaps, does not fully convey their motivation, the law review article as a whole gives the unmistakeable impression that increasing the number of Republicans in the Senate is the true goal. Their article opens up with a discussion of Texas's redistricting controversy, which is likely to guarantee the GOP control of the House for some time.

Almost needless to say, even conceding the legal validity of their arguments for the sake of argument, I do not think much of this scenario. But there is one specific nit I'd like to pick. Even if Texas were to divide itself up, I doubt very much that the GOP would net eight new senators. Absent from any of Kesavan's and Paulsen's analysis is a consideration of demographic data. In the 2000 elections, there were 3,799,639 Texan votes for Bush and 2,433,746 Texan votes for Gore. And the partisan divide has been far closer in the recent past. For example, in 1996, Bob Dole received 2,736,167 Texan votes while Bill Clinton received 2,459,683 Texan votes. There are some geographic regions in Texas that are solidly in the hands of the Democratic Party. It would take some pretty fancy slicing to carve out five Republican sovereignties.

Posted by Curmudgeonly Clerk at 09:21 AM | Comments (0)

August 21, 2004

Some Realism About Legal Realism (Part I)

Some time ago, I offered some mild criticism of legal realism in the process of discussing the judicial confirmation process. Specifically, I wrote:

This is the problem with legal realism. It's not that legal realism has no merit, it's that its merits are always overstated. Consider, for example, Professor Powe's assessment (as related by his likeminded colleague Brian Leiter):

Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: "Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice." . . . Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.

The difficulty with this notion, as I see it, is that we do not need the assistance of law professors to perceive the obvious. Powe may as well stand before his students and sagely advise them that doors are sometimes made of wood. That Scalia's and Stevens's contrasting views of the Constitution are of necessity politically informed and that this information impinges on their jurisprudence is plain as day. Almost no one fails to understand this. However, what many people, including lawyers, do fail to appreciate are the convolutions and subtleties of legal doctrines, constitutional and otherwise. The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former. How often have we read words to the effect of "Were we writing on a blank slate . . ." in a legal decision?

Professor Leiter penned a lengthy and thoughtful response. Leiter's remarks deserve a reply, but I must confess my reluctance to write one up front. You see, Professor Leiter has me at a distinct disadvantage. As a former student of his, everything that I (think I) know about legal realism I learned from Leiter. (The good professor, no doubt, will be delighted by the prospect of being publicly saddled with responsibility for the state of my jurisprudential sophistication or lack thereof.)

One might, therefore, imagine that the two of us have little to disagree about. Leiter asserts as much in his post, writing:

First is the claim that it is "obvious" that political ideology plays a role in legal decision-making. (Let's bracket the fact that the central realist thesis was about the role of non-legal norms, not all of which are necessarily political in character.) This is true if we confine our attention to lawyers—and thus the Clerk's affirmation of this point supports my original claim that all lawyers know this to be true—but false if we are talking about non-lawyers. The public culture, after all, sustains the charade—carried out in endless confirmation hearings—that there is a solid distinction between those judges who will "apply the law" and those who will "make the law." If everyone really knew what the Clerk, qua educated lawyer, knows, then this charade wouldn't make any sense.

* * *

Second, and more interestingly, there is the claim that, "The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former." This misconceives the relationship, however, between doctrine and political ideology, at least as it figures in the legal realist thesis. For any plausible realist thesis about the indeterminacy of legal reasoning is the thesis that legal reasons underdetermine the legal decision in many appellate cases, i.e., the legal reasons circumscribe the range of legally defensible outcomes, but without requiring any one of them over all the others. Which is to say, in the Clerk's terms, that the doctrine, according to realism, always "constrains" the decision.

But constraint is not enough. The structure of the realist argument is that we face an explanatory gap in looking at a court's decision when,

(a) the legal reasons underdetermine the decision, but

(b) the court reaches (necessarily) one and only one decision from among those that the legal reasons would support.

The gap is filled by appeal to (complications aside) "political ideology."

Which returns us to the original point of my posting on legal realism: given that appellate courts necessarily get a disproportionate number of cases in which the existing doctrine underdetermines the outcome—that, after all, provides a powerful incentive for parties to appeal an adverse decision in a lower court—it is inevitable that appellate judges will have to rely on non-legal norms (moral, political, economic) in resolving the cases. . . .

Leiter and I undoubtedly agree in most significant respects: the truth of legal realism is obvious and indisputable. Non-legal norms unquestionably account for the result in a certain subset of decided cases, because legal reasons and reasoning alone are not dispositive. In the terminology of my prior post, legal reasons and reasoning constrain the possible outcomes, but even within these constraints there is still more than one plausible outcome. Accordingly, something other than the law broadly construed must account for the decision adopted. For example, compare Bowers v. Hardwick, 478 U.S. 186 (1986) with Lawrence v. Texas, 123 S. Ct. 2472 (2003). One would be hardpressed to maintain that either of these two decisions was decided strictly on determinate legal grounds.

Leiter and I also apparently agree that these propositions are relatively obvious to most lawyers, though Leiter would most likely attribute this knowledge to the efforts of Professor Powe et al.. I am less sure than Leiter regarding what the remainder of the public truly believes about the judicial process. His reasoning is plausible enough as a descriptive account of certain aspects of the confirmation process (i.e., the trope about following rather than making the law). However, just as Leiter characterizes said trope as a "charade," I suspect that much of the public is similarly aware that such talk is just a pantomime. Conservatives and liberals alike may have come to be so passionate about judicial nominations precisely because both camps realize that the hard cases are not legally determinate and that various non-legal norms are highly relevant in deciding them. Nonethless, whether one accepts Leiter's account or my alternative supposition (or some reconciliation thereof), it is not as clear to me that either recommends the sort of realist confimation process envisioned by folks like Senator Schumer (and Leiter).

The question then becomes: how is it that Leiter and I are in perfect accord on so much yet fail to agree on the significance of legal realism in general and in the confirmation context in particular? I think that the answer lies, in part, in the professor's most recent Internet foray on this topic. Leiter writes:

[Judge] Posner provides further evidence for my earlier points about legal realism and judicial confirmation (e.g., here). From this interview, discussing the "politicization" of the judicial confirmation process:

"I don't object to the fact that Senators are concerned about the ideology of judicial candidates; the President is concerned, so why shouldn't the Senators be? Anyone who is realistic about the American judicial process knows that ideology affects decisions, especially the 'hot button' decisions that engage the attention of politicians; and Senators are politicians."

I cannot pretend to be familiar with Posner's voluminous writings; however, another portion of the same interview from which Leiter quotes also caught my attention:

5. You have for many years described your judicial philosophy as one of "judicial pragmatism." For those readers of this interview who have not previously encountered your description of what that means, would you please explain the term and how your approach to judging works in practice.

. . . The essence of judicial pragmatism, or at least my version of it, is recognition that difficult cases—and they are legion in our system—cannot be resolved at the appellate level by a distinctive process of reasoning called "legal reasoning," emphasizing careful parsing of text and scrupulous adherence to precedent and an analytical method that resembles deductive logic. Those methods do not resolve difficult legal cases, but merely conceal the true springs of decision in such a case, which involve a careful examination of the practical consequences of a decision for or against the appellant. The pragmatist emphasizes the continuity of facts and law, and the importance of common sense, experience, values, and yes, ideology in resolving cases when the conventional materials of judicial decision making—authoritative texts, precedent, deduction, and so forth—run out, as they so frequently do. This is not to deny the virtues, which are thoroughly pragmatic, of logic, fidelity to text, and adherence to precedent, techniques that can resolve most cases—only not the most challenging ones. The pretense that they can is particularly threadbare in the Supreme Court, which decides a very high percentage of cases that are in fact indeterminate from the standpoint of orthodox legal analytics. In any split decision by the Supreme Court, to say that one side is "right" and the other "wrong" is usually a naïve reaction.

Posner's articulation of pragmatism echoes realism to my ears, and I imagine that it sounds much the same to Leiter given the contents of his scholarly description of American Legal Realism ("ALR"). What is most interesting to me about Posner's remarks is the fact that the portions that I have emphasized in bold font contain two potentially contradictory assessments. Posner states both that the number of legally indeterminate cases is large and that conventional legal analysis "can resolve most cases." It is possible to reconcile these two statements, of course. For example, one might maintain that the raw numbers of difficult cases are large while remaining a small percentage of the overall appellate caseload, the majority of which are resolved via legal reasoning.

I do not know precisely what Posner intended, but his remarks reminded me of the H.L.A. Hart's take on realism. Hart did not ultimately reject legal realism outright, rather he rejected legal realism in degree. As Leiter phrased it in ALR:

Now there does remain a genuine point of dispute between Hart and the Realists. While both acknowledge indeterminacy in law, and while both acknowledge, accordingly, that rules do not determine decisions in some range of cases, they clearly disagree over the range of cases about which these claims hold true. Theirs, in short, is a disagreement as to degree, but it is a real disagreement nonetheless. While Hart would locate indeterminacy, and thus causal irrelevance, of rules "at the margin," Realist skepticism encompasses the "core" of appellate litigation.

So haw does Hart, in the end, respond to the Realist contention that, at least in appellate adjudication, rules play a relatively minor role is causing the courts to decide as they do? Here is, I take it, the crux of Hart's rejoinder:

[I]t is surely evident that for the most part decisions . . . are reached either by genuine effort to conform to rules consciously taken as guiding standards of decision or, if intuitively reached, are justified by rules which the judge was antecedently disposed to observe and whose relevance to the case in hand would generally be acknowledged. [The Concept of Law 137 (2d ed. 1994)]

Alas, the argument here consists in just four words: "it is surely evident." But that is no argument at all. Hart simply denies what the Realists affirm, but gives no reason for the denial other than his armchair confidence in the correctness of his own view. Of course, Hart may be correct, but given the devastating impact Hart's chapter had upon Realism among legal philosophers, it is surely more than ironic that on the crucial point of dispute with Realism—to what extent rules matter in appellate adjudication—Hart never offers any argument at all.

I share Hart's armchair confidence on the marginal and, hence, overstated (but not unimportant) impact of legal realism. In my estimation, it would be a serious mistake to think that non-legal norms pervade the contents of the various reporter series of American caselaw. But those of us who find Leiter's armchair rather less comfortable had better get to work, because, as near as I can tell, we have no arguments.

Posted by Curmudgeonly Clerk at 07:13 PM | Comments (2)

August 20, 2004

Negligent Infliction of Emotional Distress

Lawyers tend to have hunches about what the law is on any given topic, or on the likely outcome of any given case. These hunches tend to rest on our experience (professional and otherwise) as well as the legal issues that we have seen over time. Obviously, the depth and nature of one's experience seriously affects the reliability of such legal gut instincts.

When I first read this Newsday article, my hunch was that the case would never make it past the initial pleadings:

More than seven hours after Adeline Smalling learned of her husband's death, the doctor who had phoned her with the news called her West Babylon home a second time.

The doctor apologized. Ed Smalling [age 73], he told her, wasn't dead.

* * *

The night before, the doctor had called the hospital and spoken with a nurse about the status of several patients, he told the Smalling family later, and he or the nurse had simply confused Ed Smalling with another patient who had passed away.

* * *

And Adeline Smalling, 64, is suing Good Samaritan Hospital, saying the erroneous report has caused emotional and physical trauma.

* * *

"The doctor kept saying he was sorry," Adeline Smalling said. "But sorry doesn't really cut it."

Although terribly unfortunate and doubtless the cause of some genuine grief, it does not seem that the erroneous news was unexpected. The couple's daughter has reportedly stated that his alleged passing was not a shock. His health is genuinely terrible. Doctor's had already informed the family that he "could die at any time."

I do not doubt that "sorry" seems so empty in a time thatis obviously filled with heartache for this whole family. But will litigation mend their wounds? What dollar value can be placed on this unfortunate, but entirely accidental, turn of events?

Whatever the answers to the foregoing questions might be, it seems that my initial hunch was wrong. New York, where this case is pending, does, in fact, recognize such a cause of action. See Johnson v. New York, 334 N.E.2d 590, 591 (N.Y. 1975) ("The daughter of a hospital patient may recover for emotional harm sustained by her as a result of negligent misinformation given by the hospital that her mother had died. Key to liability, of course, is the hospital's duty, borne or assumed, to advise the proper next of kin of the death of a patient."). However, in order to recover for emotional harm stemming from such misinformation one must also prove causation and the genuine and substantial nature of the psychological trauma, which means that the Smalling's case ought to at least make it to the summary judgment stage. See Nordbo v. Lutheran Med. Ctr., 708 N.Y.S.2d 807, 809 (N.Y. Sup. Ct. 2000) (granting hospital summary judgment for failure to make the aforementioned showings). In other words, the Smalling's case will turn on the facts: did this event inflict the requisite demonstrable trauma?

My hunch was informed by the fact that, unlike New York, Texas, with which I am far more familiar, does not recognize a cause of action for negligent infliction of emotional distress. See Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993) (holding that "there is no general duty in Texas not to negligently inflict emotional distress" in case involving surreptitious videotaping of sex acts by one participant). Though even in jurisdictions in which the law does not allow for recovery under circumstances involving purely emotional harms absent some other condition, it is not clear that all would reject a suit of the sort brought by the Smalling. See, e.g., Johnston v. St. Anne's Hosp. W., Inc., 497 N.E.2d 408, 408-10 (Ill. App. Ct. 1986) (noting historical rejection of cause of action for negligent infliction of emotional distress, but hinting that cause of action might be tenable under facts of Johnson v. New York). I wonder if the average American thinks that this sort of conduct ought to be actionable as a matter of policy.

(Newsday link via Obscure Store.)

Posted by Curmudgeonly Clerk at 05:43 PM | Comments (8)

August 19, 2004

Referrer Logs

My webhosting service provides me with a host of webtools, most of which I am entirely too ignorant to operate. One of the few that I understand is essentially a referrer log, which allows me to collect some data on my readership (e.g., what sites visitors come from, their host/I.P. address). The results can be intriguing.

For example, over time, I have consistently gotten some referrals from, of all places, The International Atomic Energy Agency. By "referrals," I mean that a visitor arrived at my site after looking at the I.A.E.A. website, not that the Agency is directing traffic here.

It is hard to imagine a connection, isn't it? What accounts for this routine visitation of the I.A.E.A.'s website followed by my weblog? I have developed the following tentative sketch of this reader's morning activities:

(1) Examine present state of global nuclear security.

(2) Read the Curmudgeonly Clerk.

The evidence is in, folks. The Curmudgeonly Clerk: almost as important as global nuclear security.

Posted by Curmudgeonly Clerk at 03:03 PM | Comments (5)

August 13, 2004

G Is For Google (And Geek)

So am I the only one who experiences pure, child-like joy whenever Google alters its logo for special occasions? (I am such a hopeless geek.)

Posted by Curmudgeonly Clerk at 09:07 AM | Comments (3)

August 11, 2004

Sam As It Ever Was

Afficionados of judicial acerbity have long circulated Federal District Judge Sam Kent's June 8, 2001 opinion in Labor Force, Inc. v. Jacintoport Corp., which was originally published at 144 F. Supp. 2d 740 but later withdrawn at the Judge's request. Among other things, Judge Kent observed that:

Manifestly, any person with even a correspondence-course level understanding of federal practice and procedure would recognize that Defendant's Motion is patently insipid, ludicrous and utterly and unequivocally without any merit whatsoever.

At one point, Judge Kent actually referred to counsel as "blithering" and reiterated the fact that the motion in question was "asisnine tripe."

Via Begging to Differ, I see that another federal District Judge in Texas has been provoked to wrath. Writing in a July 21, 2004 order in Klein-Becker, LLC v. Stanley, Judge Sam Sparks observes that:

When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.

* * *

The Court simply wants to scream to these lawyers, "Get a life" or "Do you have any other cases?" or "When is the last time you registered for anger management classes?"

Although Judge Sparks does not conclude his order by requiring the parties to obtain new counsel of record—Judge Kent did require the defendants to do so in Labor Force—he does intimate that it is a firm possibility. One would think that the risk of professional embarrassment would preclude the sort of behavior that leads to opinions of this variety, but apparently it does not.

Posted by Curmudgeonly Clerk at 02:08 PM | Comments (7)

August 10, 2004

Personal Jesus

In a bit of otherwise harmless mockery of the conflict that erupted in the comments to this post, Evan Schaeffer's quick-witted commentary (inadvertently) cuts me to the quick by describing a passage I wrote as "Best Impersonation of Jesus in the Temple with the Money-Changers." That is, unfortunately, too often an all too apt metaphor for my rhetorical (mis)deeds. It is no small failing, given that "[d]eath and life are in the power of the tongue." I often wonder which I truly mete out.

Many seem to find ineffable happiness in Christianity. I have never found it so. Reconciling what I perceive to be the impossible (and contradictory) demands of my faith is a source of ceaseless challenge and strife. I sometimes see footage of overjoyed gospel choirs and wonder if we must not belong to different religions rather than different churches. A man could spend his entire life meditating on Matthew 5:43-48, and still not understand these verses. How much heavier the burden for a man who cannot even reliably keep his tongue from uttering grievous words.

Posted by Curmudgeonly Clerk at 10:02 PM | Comments (1)

An Open Letter to News Editors

Dear Sir or Ma'am:

I have identified a recurrent shortcoming in online news publication. It seems that, notwithstanding the flexibility that a medium like the Internet provides, news organizations frequently omit photographs critical to a full and informed understanding of the issues under discussion. For example, a recent article that ran in the Chicago Sun-Times entitled Critics Wail As Glamorous Grandmaster Tries to Make Chess Sexy failed to include a picture of aforesaid glamorous grandmaster, Maria Manakova. Please take note of how much more informative this CNN story, on a different topic, entitled FA Sex Scandal: Lover Tells All, is with the aid of an informational photograph. Allow me to thank you in advance for your prompt efforts to rectify this unfortunate situation.

/s/ The Curmudgeonly Clerk

Posted by Curmudgeonly Clerk at 09:31 PM | Comments (4)

Teen Nudism Suit Dismissed

In a press report devoid of much in the way of useful legal details, we are apprised of the fact that United States District Judge Richard L. Williams has dismissed the ACLU's suit concerning teenage nudist summer camps. The ACLU has indicated that appeal is contemplated. My take on the merits of the suit may be accessed here and in the comments to this post.

(Link via How Appealing.)

Update: The August 10, 2004 edition of the Virginian-Pilot has provided a far more useful account of the dismissal:

A federal judge threw out a lawsuit today challenging a new state law that requires youth attending a nudist camp to be accompanied by a parent, grandparent or legal guardian.

U.S. District Judge Richard L. Williams said the court case is unnecessary because organizers of a juvenile nudist camp in Ivor moved the event to another state this summer.

Rebecca Glenberg, legal director of the ACLU of Virginia, said an appeal of the judge’s ruling is likely. She said her clients have already applied for a permit to hold a camp in Virginia next summer.

* * *

Glenberg said organizers estimated that only 11 of 34 expected participants in the camp would have been able to comply with the requirement that a parent, grandparent or guardian be present.

By moving the camp to another state, she said, the camp was able to draw 17 youngsters this year. She declined to disclose the location.

Williams said he would have ruled against the campers even if they had not moved their event outside the state because he believes the new law does not infringe on parents’ right to raise their children as they please. The judge said the parents may still raise their children to be nudists, and they are free to promote that lifestyle to others.

Williams said the state law "merely imposes a minimal restriction on the parents’ exercise of their rights."

(Link via the SW Virginia Law Blog.)

Posted by Curmudgeonly Clerk at 03:14 PM | Comments (2)

All Good Things . . .

As readers have doubtless noticed, this weblog has been short on new content of late. My two-year clerkship is winding down, and I am manfully striving to whittle down the pending motions that will immediately confront my successor. In addition, I am in the middle of arranging to relocate to another part of the state, where I will enter private practice (viz., products liability defense for a medium-sized firm).

My relocation and the end of my clerkship, however, are likely to occasion more than a mere interruption in my usual pontification on issues sundry. It seems that the The Curmudgeonly Clerk as we know (and love?) it must come to an end. I am undecided as to whether I will maintain this site or any other after the conclusion of my clerkship. I suspect that private practice will leave me with far less time for this endeavor. And, as you might gather from my compulsive citation and hyperlinking, I am not disposed to do things halfway. Moreover, I have not yet raised the issue with my new employer. Naturally, as soon as I know the fate of this site, you will too.

Posted by Curmudgeonly Clerk at 09:17 AM | Comments (24)

August 05, 2004

The CSI Effect

Not too long ago, the Baltimore Sun carried a story that claims that the television show CSI was "lead[ing] to acquittals in cases prosecutors thought were airtight." The article reports that:

As shows such as CSI: Crime Scene Investigation have become America's most-watched programs, lawyers and scientists have noticed an unintended consequence: Jurors increasingly expect to encounter in the courtroom what they've seen on television—DNA, fingerprints or other irrefutable scientific evidence of guilt.

In Baltimore, lawyers have attributed several recent surprising acquittals to what they call the CSI effect. They say evidence that is not physical or scientific often seems to have little impact on jurors—even eyewitness testimony from a priest.

* * *

The idea of a television program affecting court trials is an old one, going back to the 1950s, when fictitious defense lawyer Perry Mason wormed a confession out of the real criminal by the end of each episode.

But the wild popularity of forensic science shows adds a new wrinkle—especially as much of the science is, at best, an exaggeration of what's possible.

* * *

Thomas Mauriello, a forensic scientist and adjunct professor at the University of Maryland, College Park, said there is a disconnect because many jurors across the country believe they're actually learning something about the criminal justice system when they watch television dramas.

I would be interested to know how much credence practitioners who are longer in the tooth give this theory.

(Sun link via Obscure Store.)

Posted by Curmudgeonly Clerk at 02:22 PM | Comments (4)

Those Darn "Conservatives"

In response to this story, Timothy Sandefur once again condemns "conservatives," lambasting them for "mouthing their meaningless platitudes" concerning drugs. The more I read Freespace, the more I get the sense that "conservatives" must mean anyone who disagrees with Sandefur on any topic, ever.

The drug war is hardly a machination of "conservatives." For better or worse, most of America's drug policy enjoys wide support. Polling data on this subject is not difficult to come by. For example, consider the following results from a Pew Research Center for the People & the Press survey conducted by Princeton Survey Research Associates in February of 2001:

"Next I have some questions about the problem of drugs and drug abuse. How would you describe the problem of drug abuse across the country? Would you say it is a crisis, a serious problem, a minor problem, or not a problem?"

Crisis 27%

Serious problem 63%

Minor problem 7%

Not a problem 1 %

Don't know 2%

* * *

"I'm going to mention some actions the government could take to control the use of drugs. I'd like you to rate the effectiveness of each. Would a big government push to [see below] be very effective in controlling drugs, only somewhat effective, or not very effective at all?"

* * *

"Arrest people who sell illegal drugs in this country"

Very 49%

Somewhat 33%

Not very 17%

Don't know 1%

* * *

"Arrest drug users in this country"

Very 30%

Somewhat 34%

Not very 34%

Don't know 2%

* * *

"Do you think the possession of small amounts of marijuana should or should not be treated as a criminal offense?"

Should 49%

Should not 46%

Don't know 5%

Although this last question indicates that there is fairly even split concerning criminalization of small amounts of marihuana (i.e., personal use quantities), one does not get the impression that the public generally favors legalization of marihuana. A CNN/Time poll from October of 2002 found that only 34% favored legalization of marihuana, while 59% opposed such a policy and 7% were unsure. The numbers in the CNN/Time poll were not markedly different where small quantities of marihuana are concerned. Moreover, on the federal level, American drug policy does not appear to change much no matter which party controls the White House. In short, it isn't just conservatives waging the so-called drug war.

Posted by Curmudgeonly Clerk at 09:01 AM | Comments (3)

August 02, 2004

Impending Fahrenheit 9/11 Litigation?

The Bloomington-Normal Pantagraph has sent Michael Moore a demand letter:

In a letter drafted Thursday and sent to Moore and the movie's Santa Monica, Calif.-based distributor, Lions Gate Entertainment, the newspaper admonished him for his "unauthorized . . . misleading" use of The Pantagraph in the film. He also was cited for copyright infringement.

The letter, drafted by J. Casey Costigan of the Bloomington law firm, Costigan & Wollrab, seeks an apology, an explanation of how such a strange discrepancy occurred in his movie and compensatory damages—of $1.

* * *

In a moment early in the movie, newspaper headlines from around America that relate to the legally contested 2000 presidential election flash across the screen. One of them is purported to be from a Dec. 19, 2001, edition of The Pantagraph.

But a check of that day's newspaper revealed the large headline prominently flashed in the movie—"Latest Florida recount shows Gore won election"—never appeared in that edition.

Instead, the headline appeared in a Dec. 5, 2001, edition—but not as a news headline. It was in much smaller type above a letter to the editor. Those headlines reflect only the opinions of the letter writer and are not considered "factual" news stories.

In the movie, The Pantagraph page, as shown, was not how a real page from the newspaper would have looked. Moore's version had a different typeface and a different headline size from what The Pantagraph uses. The newspaper's name, however, appears in the correct font.

The letter calls all of this a "misrepresentation of facts."

This is not the first bit of litigation spawned by Moore's controversial filmmaking.

On a prior occasion, Moore has defended his filmmaking, declaring that:

"I operate in a different place than they do," says Moore, whose Web site has a detailed rebuttal of criticism aimed at him. "They don't get their facts straight—that's the big difference. . . . Everything in my books and movies and TV shows is true. It's absolutely true. And anyone who says otherwise is lying.

"I used to just take it in stride and laugh (my accusers) off. Now I'm going to take them on. If they libel me—if they tell a lie they know is a lie, if they do it with malice, and I can prove the malice—I'm going to sue them."

Accordingly, in the event of a lawsuit by The Pantagraph, it will be interesting to see if Moore files any counterclaims.

(Pantagraph link via Poynter Online.)

Posted by Curmudgeonly Clerk at 10:40 PM | Comments (0)

What Women Want

Professor Reynolds passes along a fairly dubious argument from Neal Boortz. Concerning Alabama's ban on the commercial distribution of sex toys, Boortz writes:

Most of the Alabama legislature is made up of men. Just who are they protecting here? It's a pretty sad state of affairs when the men folk have to get together and pass laws to keep their women from utilizing alternative methods for sexual gratification. What do you Alabama studs need? Lessons?

It is true that most of the House and Senate that together comprise Alabama's legislature is made up of men. However, underlying Boortz's observation is the almost certainly false assumption that the opinion of women on this issue is solely a function of their sex/gender, and the concomitant proposition that if there were only more women in the legislature such nonsense would not pass. Statistics that distinguish between male and female opinion regarding abortion, a so-called women's issue, generally suggest otherwise. Moreover, Boortz does not indicate how many, if any, of the female members of each body also voted for the ban.

In addition, Boortz's jibe overlooks the fact that 51.7 percent of the population in Alabama is female. Among female Alabamans, 39.4 percent are 18-years-old or older, while a comparative 35.3 percent of the already smaller subset of male Alabamans is 18-years-old or older. In light of the foegoing demographics and Nineteenth Amendment, I fail to understand how Alabama's ban on the sale of sex toys can possibly be the result of men supervising women's sexuality in any meaningful sense, unless one believes that duly elected male legislators simply cannot represent the interests of their female constituents and that their female constituents are incapable of holding their legislators accountable.

Perhaps, I simply take Boortz's position more seriously than he does. Over the Internet there is always the danger that one might mistake lighthearted mockery for a more serious conviction. Even so, mockery still has to remain grounded in some semblance of reality in order to strike its target. Boortz's statement seems utterly detached from reality and grounded instead in a noxious strain of identity politics that deserves opposition at every turn.

Posted by Curmudgeonly Clerk at 05:00 PM | Comments (4)

Remedial Torts For Reformers

Liebeck v. McDonald's Restaurants, P.T.S., Inc. (a.k.a The McDonald's Coffee Case) is the litigation that will not die. It has taken on a life of its own in the public imagination. I say "imagination," because most folks have no real grasp of the case. The case has once again surfaced in a debate between The Daily Kos and Professor Bainbridge. In support of his position, Professor Bainbridge relies on arguments previously advanced by Ted Frank of Overlawyered and Point of Law.

The dispute between Bainbridge and this fellow over at Kos really has nothing to do with Liebeck. In actuality, it's a debate between those who view "trial lawyer" as an epithet and those who think it high praise. That particular debate is less than interesting, but Bainbridge's borrowed arguments are worth contesting. It won't surprise anyone to learn that I think both Frank and Bainbridge have it all wrong, given the fact that Frank's arguments constitute one half of a debate in which I was the other participant.

For present purposes, I wish primarily to focus on one area of the dispute over Liebeck that resurfaces with some frequency. Bainbridge quotes Frank as follows:

The argument for liability is that McDonald's chose to serve its coffee hot and should have foreseen that people would burn themselves when they spilled coffee. But, here's a question: the reason Ms. Liebeck's injuries were so terrible was because she was wearing a sweatsuit that absorbed the hot liquid and held it close to her skin. Surely, clothing manufacturers can foresee that people will spill hot liquids on themselves. If Ms. Liebeck's sweatpants had been made out of Gore-Tex or some other liquid-resistant material, she never would have been hurt. What's the principle of tort law that holds McDonald's liable, but not the clothing manufacturer?

Bainbridge is equally mystified, remarking in response: "You got me." Indeed, I think I do have you, professor. There are multiple problems with what I will subsequently term the Frank-Bainbridge proposition.

First, it is not clear that the Frank-Bainbridge proposition is factually accurate. As reported in the Wall Street Journal, the McDonald's coffee at issue was approximately 180° F when served. A medical expert for the plaintiff testified at trial that "it takes less than three seconds to produce a third-degree burn at 190 degrees, about 12 to 15 seconds at 180 degrees and about 20 seconds at 160 degrees." In addition, Liebeck was elderly (viz., late 70s at the time of the injury), and the elderly usually have more fragile skin. McDonald's actually conceded as much, arguing that her age was a factor in the severity of Liebeck's injuries. Accordingly, at most the coffee needed to be in contact with the plaintiff's skin for approximately 12 to 15 seconds, but likely would have produced such burns somewhat faster given Liebeck's age. How much faster? Only an expert evaluation could say. One might also make similar arguments concerning the precise location of the injuries, which included the labia.

What we do know is that the coffee had to be in contact with Liebeck's skin for a fairly short amount of time in order to produce the severest degree of burns. Less serious (but nonetheless serious) injuries would have resulted in an even shorter span of time. The Frank-Bainbridge proposition consists of the notion that sweatpants are especially absorbant and held the coffee to Liebeck's skin for a prolonged period of time. It's less clear to me that the assumptions underlying this thesis are accurate. Although absorbant, sweatpants are also relatively loose-fitting as a general rule. In addition, perhaps, no sort of clothing may be removed with greater ease and alacrity than sweatpants. In other words, the empirical assumptions on which the Frank-Bainbridge proposition rests are highly questionable. Any delay was more likely the result of the excruciating pain, Liebeck's elderliness, and her seated position in a relatively confined space rather than her clothing. So, in some measure, the line between liability and non-liability that Frank and Bainbridge find so elusive may simply be the result of the facts of the case.

Second, even if one overlooks the dubious and unsupported empirical assumptions that underlie the Frank-Bainbridge proposition, I find their mystification to be odd given their legal background. Products liability, the conceptual rubric under which the Liebeck case was brought, is just a specialized branch of tort law. Notwithstanding the differing elements of products liability suits and more traditional tort actions, the foreseeability of the injuries involved plays some role in assessments of products liability in order to foreclose "liability for very attenuated injuries." David W. Robertson et al., Cases and Materials on Torts 579-80 (2d ed. 1998); see, e.g., Hernandez v. Tokai Corp., 2 S.W.3d 251, 257 (Tex. 1999) ("Foreseeability of risk of harm is a requirement for liability for a defectively designed product . . . ."). And, as any first-year law student can tell you, the line that separates attenuated injuries for which there nonetheless will be liability from those too attenuated to sustain liability is an amorphous one. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 101 (N.Y. 1928) ("One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.").

In the Liebeck case, I would suggest that serving McDonald's coffee at the 180° F entailed "possibilities of danger so many and apparent" as to produce liability, whereas the wearing of sweatpants did not. With regard to the coffee, the possibilities were certainly apparent. As even McDonald's many defenders concede, the restaurant chain was well aware of the potential for injury accompanied by serving coffee at such temperatures. It is not disputed that McDonald's had received at least 700 reports of burns of varying severity prior to the Liebeck suit; nor is it disputed that McDonald's had settled multiple similar cases for varying sums. Bainbridge and Frank downplay the significance of these facts by arguing that the 700 documented cases are statistically insignificant. However, given that the issue is one of foreseeability, is statistical significance even relevant when the facts and figures in question demonstrate actual awareness as opposed to mere foreseeability?

When viewed in this light, the Frank-Bainbridge proposition boils down to little more than cost-benefit analysis. If this argument sounds familiar, it's because it is. The Frank-Bainbridge proposition is reminiscent of Ford Motor Company's defense of the Pinto. I am only too happy to concede a legitimate place for cost-benefit analysis in such cases. See, e.g., McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 657 (7th Cir. 1998) (indicating that the incremental risks of higher temperatures involved needed to be weighed against the benefits of superior taste). However, I am also inclined to view additional costs more favorably when catastrophic physical injury (e.g., third-degree burns to the labia) is a known possibility. As the foregoing phrasing suggests, what the verdict in Liebeck ultimately places at issue is not cost-benefit analysis, but rather who gets to decide when that balance has been improperly struck. I firmly believe that juries are the proper decision-maker. Arguing that the statistics "should have been used to throw the case out," Frank and Bainbridge think the case should never have even reached a jury. The same argument could be made with reference to the Pinto.

Any theory of liability premised on the sweatpants, however, is simply so much more attenuated than liability premised on the coffee. We know that the coffee was a "but for" cause of Liebeck's injuries (i.e., but for coffee of the requisite temperature she would not have been injured). However, as noted above, it is less clear that "but for" the sweatpants Liebeck would not have been injured. Indeed, it seems that she would still have been injured had she been wearing any sort of coventional contemporary clothing (e.g., denim jeans, cotton slacks), most of which would also absorb and hold a spilled liquid to one's skin. Presumably, Frank and Bainbridge would argue that, therefore, there is no principled distinction that can be made that will result in McDonald's remaining liable while absolving all major clothing manufacturers. This contention, perhaps, has some surface appeal given that products liability suits require the demonstration of mere "contributing cause" rather than the "but for" causation referenced above. See, e.g., Parsons v. Ford Motor Co., 85 S.W.3d 323, 329 (Tex. App.—Austin 2002, pet. denied). But what ultimately undoes such a contention is that it must rest on the notion that this almost universal aspect of clothing of any sort constitutes a "defect" as that term is understood in products liability law.

However, it is difficult to conceptualize an almost unavoidable quality of a product as a defect. I say "almost unavoidable" because, as Frank and Bainbridge observe, some types of clothing are non-absorbant (e.g., Gore-Tex). But Frank's and Bainbridge's reliance on Gore-Tex proves too much. Gore-Tex is not a common fabric in everyday clothing. Holding any clothing manufacturer or producer liable in a coffee spill case such as Liebeck would effectively amount to requiring clothing to be non-absorbant, like Gore-Tex, which might entail risks of its own (i.e., risks associated with reduced breathability of the fabric). In short, holding clothing manufacturers liable entails considerations that are not in play where the coffee is concerned. These distinctions are fairly self-evident, and there is little reason to assume that jurors would be incapable of appreciating them. Plaintiffs' lawyers must see things this way as well. After all, Liebeck's attorney did not, in fact, sue the maker of his client's sweatpants. Nor have Frank or Bainbridge cited cases in which such liability was advanced let alone vindicated. If there is indeed no distinction between holding McDonald's liable and holding clothing manufacturers liable, one wonders why the latter liability appears to exist solely in the minds of Liebeck's detractors.

Third, even if one accepts the assumptions that underlie the Frank-Bainbridge proposition, it's not clear to me that it has merit. I think that the error of the Frank-Bainbridge proposition is, perhaps, best demonstrated by way of a hypothetical in which we embrace Frank's and Bainbridge's suppositions. Let us assume that "Unfortunate Umberto" is using Product "P" in his garage one Sunday. As is his wont, Umberto is casually clothed while in his workshop. Attired in his sweatsuit, and putting "P" to its common usage, "P" unexpectedly combusts and engulfs Umberto in flames. Unfortunately, his sweatsuit catches flame as well, prolonging the period during which Umberto is exposed to the fire. In the aftermath, Umberto is found to have suffered third-degree burns.

It is important to recall at this point that the Frank-Bainbridge proposition is an attempted example of reductio ad absurdum. On the basis that clothing makers supposedly could be held liable under the theory advanced in Liebeck, we are to conclude that Liebeck was wrongly decided. As I have noted, I think there are ample reasons to doubt the notion that the two product-makers cannot be meaningfully distinguished. But set such skepticism aside for the moment. What is the difference in the hypothetical scenario involving Umberto? Assuming the Product "P" did not require special care in its handling and usage (i.e., does not call for the wearing of protective gear), should its makers not be held liable solely because Umberto was attired in clothing that was not terribly fire-retardant? It seems to me that the Frank-Bainbridge proposition counsels non-liability for both the maker of Product "P" and the maker of Umberto's sweatpants under these circumstances. While the latter result seems correct for the reasons I have identified above, I am hardpressed to understand why the makers of a product that sets in motion a series of events that directly leads to third degree burns ought not to be held liable. The fact that Umberto was dressed in a common sort of clothing that may have exacerbated his injuries should not excuse the makers of "P" from liability. See, e.g., Lang v. City of Nacogdoches, 942 S.W.2d 752, 766 (Tex. App.—Tyler 1997, pet. denied) (reciting "the rule that a tortfeasor takes his victim as he finds him").

On this score, Frank and Bainbridge seem to place great stock in the fact that "Liebeck was hurt because she spilled coffee on herself." Hence, to perfectly mirror the situation in Liebeck in our hypothetical, Frank and Bainbridge would argue that we would also have to assume that Umberto had played some role in causing his misfortune. This is fair enough, but one once again wonders why either Frank or Bainbridge think that liability is foreclosed under such circumstances.

Products liability does account for the tort doctrine of comparative responsibility (i.e., the notion that a plaintiff is liable for his damages to the extent that the fault for his injuries is his own), but consumers have no duty to discover or guard against unanticipated defects. See, e.g., Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 594 (Tex. 1999) ("Thus, we hold that a consumer has no duty to discover or guard against a product defect, but a consumer's conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility."). Likewise, misuse of a product—if Liebeck's behavior can even be characterized as "misuse"—does not preclude liability. See, e.g., Tokai Corp., 2 S.W.3d at 257 ("But the fact that the foreseeable risk of harm is due to a misuse of the product, rather than an intended use, is not an absolute bar to liability for that portion of an injury caused by a product's defective design. Instead, misuse of a product is a factor that must be considered in allocating responsibility for the injury."). Liability is precluded in states that recognize the doctrine of comparative liability solely when the plaintiff's liability is so excessive that he can be said to be responsible for the lion's share of his woes. In Texas, for example, "a claimant may not recover damages if his percentage of responsibility is greater than 50 percent." Tex. Civ. Prac. & Rem. Code § 33.001.

The relevant inquiries then are (1) whether one considers removing the lid of the fast-food coffee container in question in order to add sugar and cream and subsequently spilling it to be sufficient to attribute some of the blame to Liebeck herself under the circumstances; and, (2) if so, whether she was so singularly to blame for her injuries as to preclude any liability on the part of McDonald's whatever. The jury did indeed find Liebeck to be partially to blame, attributing twenty percent of the fault to her. Frank and Bainbridge do not disclose what percentage of the fault they would attribute to Liebeck under the circumstances or how they would arrive at their unannounced figure. But they would apparently assess a percentage of the fault of over 50 percent to Liebeck, precluding any recovery whatsoever.

No doubt, the jury concluded that Liebeck's conduct, while negligent, was not so unreasonable as to preclude recovery. And it is hard to fault that assessment. No one appears to dispute that Liebeck's actions were well within the everyday norms of fast-food coffee consumers. What was unexpected is that this everyday behavior could lead not just to mere injury but burns of the most severe sort within seconds. Yet prior to the Liebeck suit, McDonald's coffee cups featured the warning "Caution: Contents Hot" in writing small enough that at least one of the jurors required her glasses in order to read it. As the Texas Court of Appeals has noted:

If a manufacturer knows or should know of potential harm to a user because of the nature of its product, the manufacturer is required to give an adequate warning of such dangers. A manufacturer may be held liable for foreseeable misuse of its product. Where the product is not defective if used as intended, a foreseeable misuse may still give rise to a duty to warn.

Coleman v. Cintas Sales Corp., 40 S.W.3d 544, 550-51 (Tex. App.—San Antonio 2001, pet. denied) (emphasis added).

The issue of the warning on the cup also highlights another manner in which the Frank-Bainbridge proposition is mistaken in terms of its basic conception of the viability of liability in the Liebeck suit. Inadequacy of warning may result in liability under a "marketing defect" products liability cause of action even if a product is generally safe if used as intended. See, e.g., Brown Forman Corp. v. Brune, 893 S.W.2d 640, 644 (Tex. App.—Corpus Christi 1994, writ denied) ("[E]ven a product safely designed and manufactured may be unreasonably dangerous as marketed because of a lack of adequate warnings or instructions for safe use."). Frank and Bainbridge discount the notion that the warning was inadequate in this case (viz., "a juror later complained that McDonald's warning was too small"), but "[t]he adequacy of a warning is a question of fact to be determined by the jury." U.S. Silica Co. v. Tompkins, 92 S.W.3d 605, 609 (Tex. App.—Beaumont 2002, pet. filed).

Given the risks posed by coffee served at 180° F, the small warning "Caution: Contents Hot" seems rather inadequate. See, e.g., Brune, 893 S.W.2d at 644 ("The adequacy of the warning is defined in terms of the likelihood of its being noticed and its ability to be understood and to convey a sufficient indication of the risks involved."). Although excessively prolix cautionary statements also may be of little value, see McMahon, 159 F.3d at 656-57, a pithy warning that indicated the potential for severe burns or burns capable of requiring prolonged medical care might be more apropos under the circumstances. This is particularly so, given the fact that "[w]e may assume that ordinary consumers" are unaware of such extreme risks posed by coffee. Id. at 656. This lack of awareness, of course, bears directly on considerations of comparative negligence. See, e.g., Torres v. Caterpillar, Inc., 928 S.W.2d 233, 242 (Tex. App.—San Antonio 1996, writ denied) ("Where the injured party voluntarily encounters a known danger, the injured party can be held accountable for the party's own negligence even in a strict liability action.") (emphasis added).

Posted by Curmudgeonly Clerk at 08:53 AM | Comments (34)