Gladstone, Doctorow game out tech reg quagmire

Cory Doctorow
Houari B. via Flickr CC BY-NC-SA 2.0

On the Media's Brooke Gladstone talked to Cory Doctorow, author, internet activist, etc., on September 1 about, well, everything, and it's a breathtaking hour of must-listen radio.

The conversation wrapped up every issue I care about in technology and society today into a neat and intelligible bundle of the utter mess that it is: intellectual property, antitrust, privacy and data protection, politics and corruption, and the corporatocracy that's incinerating democracy. Doctorow is more optimistic than I that human civilization can yet be saved, so the program is not even a downer in the end.

I feel like I'm someone who knows a fair bit about this stuff, so I was humbled by how much I learned. I want to spill it all here, but I ought not be a spoiler. I'll share just a tidbit.

You know that thing when videos go viral and some average joe or jane inspires another generation of youth to plot a career as a social media sensation?

Yeah, not a thing.  At least not always an organic thing. Companies such as TikTok "twiddle" or "heat up"—terms of art—selected content to make it "viral," even while users think that they collectively are driving virality by demand.

Why? It's a "giant teddy bear" strategy, Doctorow explained. The carney at the fair lets an early player on one of those unwinnable-by-design games "win" the giant teddy bear, knowing that that customer will carry it around all night, inadvertently advertising the game to everyone else. The viral video maker thinks that a million people just loved that nutty dance and doesn't even realize that she or he is a tool, carrying the giant teddy bear around.

How do the companies get away with telling us one thing and doing something else? Because they change the rules whenever they like, Doctorow said. There are no rules about how they can change the rules.

Huzaifa abedeen via Wikimedia Commons CC BY-SA 4.0

And don't even get me started on the plethora of legal mechanisms that protect this monstrous Big Tech monopolization. Dare to start asking questions, and you'll find yourself on the business end of demand letters citing the DMCA, the Computer Fraud and Abuse Act, and patent and trademark law, just to get the ball rolling.

Yes, I realize that I am writing on a Google platform right now. What's a writer to do? I confess, I made a conscious decision at one point simply to surrender to Google. I have a Nest doorbell, a Pixel phone, and a Google Drive. But, you see, this is what Doctorow is talking about. It's next to impossible to get along in the virtual world today without surrendering.  Try buying diapers from Diapers.com instead of Amazon.

Doctorow is a big fan of Lina Khan and the example she's setting with the Federal Trade Commission's sudden scrutiny of the tech sector. Unfortunately, Doctorow said, it's easier to stop monopoly from happening than to dismantle it after it's taken hold. If you're my age, you'll remember how long AT&T reigned supreme before the feds came a-knockin'. Better late than never. I'll be interested to see if Khan-ology persists, or corporate power in Washington is now too big to break.

The podcast is How Big Tech Went to Sh*t, from WNYC's On the Media (Sept. 1, 2023).

Ark. Gov swings again at state FOIA

Arkansas Governor Sarah Huckabee Sanders has proposed a bill to undercut the highly regarded transparency regime of that state's Freedom of Information Act.

I was at the Arkansas Capitol when a veritable mob of citizen opposition stopped an anti-transparency reform bill in the spring. Try, try again must be the Governor's m.o.

My friend and colleague Professor Robert Steinbuch testified effectively against the spring reform bill. Here he is telling Conduit News Arkansas why the newest incarnation is no good either.

UPDATE, Sept. 16. My understanding is that the bill was gutted this week. A substantially narrowed enacted version applies only to secret information about the governor's security detail. The matter was discussed on Arkansas Week.

Ethics problems in law, education inform message on Christian ethics in biblical story of widow's offering

Last Sunday, it was my privilege to deliver a message on "Christian ethics," arising from Mark 12:41-44, at my local church in Barrington, R.I.

The service is posted on the church website. The message begins at about 31 minutes and runs about 24 minutes in duration.

I used two problems in conventional ethics as jumping off points: one, from legal ethics, a lawyer's unintentional acquisition of privileged records produced mistakenly in discovery; and two, from higher education, a student's unintended acquisition of an unfair academic advantage.

I used the term "doing ethics," which I borrow from, though it is not unique to, the work of Bob Steele (no relation), Jay Black, and Ralph Barney, with a powerful assist by Lou Hodges, in journalism ethics in the 1990s. I was privileged to have a front-row seat when they worked out the revised code of ethics for the Society of Professional Journalists at that time, especially the game-changing "Minimize Harm" principle.

In crafting the church message, I am indebted especially to mentors Eric D'Agostino and Scotty Neasbitt, who helped me navigate the research; and to my church leadership, including Dan Harrington, who writes thought provokingly for the ProJo; and, always, to my wife, an unflinching editor.

I note that, as always, this blog is personal and not affiliated with nor controlled by my employer. Sometimes content on this blog serves both to inform the public and to educate my students about the law. This posting, however, concerns religious belief and is exclusively personal in nature. No public resources nor on-the-job time was used in the work of the above-described message, nor in the production of this blog post. At the same time, of course, readers of any and every religious tradition and belief system are welcome on this page and at The Savory Tort, just as all students are welcome and encouraged in my classroom.

Unforeseeability precludes lessor liability for saloon shooting, but court fails to mention 'scope of liability'

Jernej Furman CC BY 2.0 via Flickr

A property owner could not be held liable for the fatal shooting of a musician at a lessee nightclub, the Massachusetts Supreme Judicial Court held in August.

The court applied conventional principles of foreseeability, but made no mention of recently adopted "scope of liability" analysis.

In the tragic conclusion of a personal feud, 23-year-old musician Drake Scott was shot multiple times and killed at the City Limits Saloon in Boston in February 2016. Gregory Wright was found guilty of first-degree murder in the incident in 2019 and, at age 39, sentenced to life without possibility of parole. (E.g., CBS News.)

In subsequent civil litigation, Scott's mother sued UTP Realty, LLC, alleging negligent failure to prevent the shooting with better security or lighting. UTP had acquired the property, and with it the saloon's lease, in November 2015. The plaintiff said that past incidents of violence at the saloon should have put UTP on notice of the risk. UTP's principal denied any actual knowledge of the history.

Massachusetts does not recognize the common law invitee-licensee distinction in premises liability, rather observing a unitary standard of reasonableness—though that probably would not have mattered here. The older common law framework might have been less forgiving of UTP, as property owners owe a duty of reasonable investigation to discover risks. Still, the duty is merely one of reasonableness; it does not follow necessarily that even a diligent UTP investigation would have discovered the risk that resulted in Scott's murder.

More importantly, the court determined that Scott's murder was not reasonably foreseeable. Accordingly, UTP simply owed no duty to Scott, and by extension in wrongful death, his mother.

"The word 'foreseeable' has been used to define both the limits of a duty of care and the limits of proximate cause," the court quoted its own precedent citing legal treatises. "As a practical matter, in deciding the foreseeability question, it seems not important whether one defines a duty as limited to guarding against reasonably foreseeable risks of harm or whether one defines the necessary causal connection between a breach of duty and some harm as one in which the harm was a reasonably foreseeable consequence of the breach of duty."

UTP's property ownership was brief and at arm's length; Wright's act was sudden and brutal. In causal terms, an intervening cause in the person of an intentional criminal actor, especially in case of a violent offense, more often than not becomes a superseding cause, absolving an earlier negligent actor, such as a property owner, of legal responsibility. Upon that rule, the conclusion here is noteworthy, but not surprising. The same goes for the court's recognition that duty and legal causation offer alternative expressions of reasonable foreseeability.

The court's reasoning surprising, however, in the context of the court's recognition, amid what appeared to be a heated disagreement, of the Third Restatement approach to duty and causation in 2021, in Doull v. Foster, which I wrote about at the time.  Acknowledging the overlap between duty and legal causation, the Third Restatement sought to relocate policy-driven analysis to a more straightforward new element, "scope of liability."

Moreover, the Third Restatement eschewed the superseding causation approach as a way of solving the problem of multiple actors. Once the scope-of-liability hurdle is overcome, the Third Restatement favored instead the recognition of a question of fact as to the apportionment of liability between multiple culpable actors, even if one was merely negligent and the other committed an intentional crime.

Neither scope of liability nor apportionment, nor the Third Restatement nor Doull, for that matter, earned a mention in the instant case: a sound conclusion, in my opinion, but evidence in support of my skepticism of Doull's eagerness to embrace reform,

On the one hand, if it ain't broke, don't fix it. On the other hand, litigators and trial judges fairly might wonder when to Doull and when not.

The case is Hill-Junious v. UTP Realty, LLC, No. SJC-13380 (Mass. Aug. 16, 2023). Justice Serge Georges, Jr., wrote the unanimous court opinion. Justice Georges had just been appointed in December 2020 and did not participate in Doull.

Denying public access to crash data, did state agency prioritize fear of litigation over public safety?

Map of bicycle and pedestrian accidents
in Providence, R.I., 2009-17, from
Providence Great Streets Master Plan (2020)

Rhode Island authorities appear to have denied public access to road safety data for no reason better than protecting the state from litigation.

For The Providence Journal, Amy Russo reported in June (subscription) on a dispute between the nonprofit advocacy group Providence Streets Coalition (PSC) and the Rhode Island Department of Transportation (RIDOT). According to the story, RIDOT denied a PSC request under state public records law for access to crash data.

To justify the denial, RIDOT pointed to federal law and state court precedent allowing denial of a public record request when a litigant seeks to support a negligence claim against the government, Russo reported. But there is no litigation related to the PSC request.

The relevant rule seems to be of the kind known to some freedom of information acts (FOIAs) that seeks to keep the FOIA process apart from discovery in litigation. Such provisions are not necessarily hostile to public access, but ensure that FOIAs don't undermine civil procedure. Usually a litigant in discovery has better access to relevant government-defendant records than a public-record requester has because FOIA exemptions from access don't apply. Sensitive information that might be FOIA-exempt can be subject to a protective order under the rules of civil procedure, but still must be disclosed.

It rather turns the rule on its head, then, for RIDOT to resist disclosure when there is no alternative track in discovery for the requester to demand access. If that's indeed what happened, then RIDOT is almost certainly overreaching. The state has ample protection from lawsuits in sovereign immunity. Typically, states cannot be sued merely for failure to act affirmatively to ensure public safety, nor for exercising discretion to prioritize public safety relative to finite resources.

Rather, a litigant must show that officials were bound to follow a specific legal standard and negligently failed to do so. If that's what's going on, then lawsuits are precisely the appropriate mechanism for injured persons to see their interests vindicated and the state held accountable.

Whatever RIDOT's motive, withholding vital safety data from the public is plainly at cross-purposes with public interest. Russo's story observed that other states, "including Texas, Colorado, Florida, California, and Massachusetts," make crash data public. She interviewed Eric Jackson, head of the Connecticut Transportation Institute and Transportation Safety Research Center at the University of Connecticut, which partnered with the Connecticut Department of Transportation to build a public crash database in 2010.

Connecticut did worry that "attorneys and ambulance chasers are going to come after us and basically say you have the data that's showing you where crashes are occurring," Jackson said. But "[s]o far, ... that hasn't come to fruition."

And Jackson pointed out what should be obvious: If the problem is road safety, then secreting data is hardly the answer.

The PSC-RIDOT matter won't come to court, Russo wrote, because PSC obtained the data it wanted from the City of Providence.

The story is Amy Russo, A Providence Organization Wanted Crash Data To Make Streets Safer. RIDOT Said It's Private, Providence J. (June 26, 2023) (subscription).

Anti-SLAPP protects doctor for reporting patient-doctor's opioid use to physician treatment authority

Cindy Shebley CC BY 2.0 via Flickr

A doctor who prescribed opioids for a fellow doctor and ultimately reported the patient-doctor for possible impairment by addiction was protected by anti-SLAPP law when the patient-doctor sued, the Massachusetts Appeals Court held in June.

The two doctors' relationships started when the defendant, a primary care physician, prescribed the plaintiff, an ophthalmologist, Percocet, which contains oxycodone, to manage migraines. In time, the defendant became concerned about the plaintiff's ongoing use of opioids. After unsatisfactory back-and-forth with the plaintiff, the defendant reported his concerns to Physician Health Services (PHS), a nonprofit corporation created by the Massachusetts Medical Society, which in turn is a creation of the legislature. The plaintiff ultimately accepted addiction counseling upon PHS recommendation.

The plaintiff sued the defendant for negligence, tortious interference, civil rights violation, and invasion of privacy. The defendant invoked the Massachusetts anti-SLAPP law, and the court dismissed. The Appeals Court affirmed.

I'm on record as an anti-SLAPP skeptic, while acknowledging that anti-SLAPP laws sometimes facilitate a sound outcome. To my satisfaction, the Massachusetts law is narrow in some key regards, including the requirement that a defendant's conduct must be substantially related to a petitioning to governmental officials. In June 2021, I wrote about the failure of an anti-SLAPP defense when the Appeals Court opined that defendants' alleged extortive expression was not sufficiently closely related to the zoning disposition with which the defendant was alleged to have sought to interfere.

In the instant case, the Appeals Court had little trouble determining that the defendant's reports to PHS were substantially related to government petitioning. Physician peer reporting is required by law upon reasonable belief in a violation of regulation. And it was understood, the court reasoned, that reporting to PHS, which specializes in treatment for drug and alcohol impairment, was an intermediate step that would result in reporting to the state licensing authority if the matter could not be resolved.

"It follows, therefore, that the defendant's communication to PHS regarding his concern about the plaintiff is protected," the court wrote, "unless the plaintiff can show either that the defendant failed to act in good faith or that he had no reasonable belief that the communication furthered the purpose of PHS."

The case is Berk v. Kronlund, No. 22-P-4 (Mass. App. Ct. June 14, 2023) (FindLaw). Justice Kenneth V. Desmond Jr. wrote the opinion of the unanimous panel that also comprised Justices Wolohojian and Blake.

Court rejects 'super tort' theory in suit alleging animal cruelty, though concurrence mentions rights of nature

Kodiak bear at Olympic Game Farm, a private zoo in Washington.
Analise Zocher via Flickr CC BY 2.0

The Animal Legal Defense Fund tried but failed in August to convince the Washington Supreme Court to treat animal cruelty as an actionable "super tort."

The nonprofit Animal Legal Defense Fund (ALDF) sued a private zoo in Washington, alleging animal cruelty under state public nuisance law. In mid-August, the Washington Supreme Court rejected the theory as beyond the scope of the statute.

It is a clever theory. Like environmentalists, animal protection organizations face high hurdles using tort law to advance their work. Animal cruelty laws often are not vigorously enforced by public authorities and provide scant mechanisms for private enforcement. Nonprofits usually have no standing to sue without a statutory authorization.

State and local governments lately have been pushing nuisance law as a potential accountability mechanism for all kinds of social ills. Nuisance is a leading theory in lawsuits against Big Oil for the impact of climate change. And some governments found success with nuisance to leverage settlements with opioid sellers.

But this "super tort," as termed by the defense bar and tort reformers, is problematic for policy reasons. Overusing the tort system to regulate business exceeds the bounds of corrective justice, threatening the free market and the organic social contract. The courts are not equipped to make policy, and it's not their function in the constitutional design of separated powers. Converting, or perverting, social problems into civil litigation thus bypasses the political branches of government, enervating democratic accountability and threatening unintended consequences.

In 2020, I wrote about this issue in the context of the Rhode Island suit (my home state) against Big Oil. I spoke about the problem to a Jagiellonian University audience via Zoom earlier that same year.

Some states, such as Washington, allow the enforcement of public nuisance law with "private attorney general," or "citizen-suit," provisions. The potential for public authorities to expand the scope of public nuisance is thus multiplied by willing and creative advocacy organizations.

ALDF theorized that animal cruelty, which the nonprofit alleged in suing the private zoo in Washington, constituted a public nuisance. That's a reach, but not irrational.

Pollution, or environmental damage, is the classic example of a public nuisance.  A die-off of fish in a public waterway might adversely affect the interests of waterside property owners, but there is no incursion on any one property such as creates a privately enforceable nuisance. Public authorities are obliged to respond to the problem as a matter of policymaking—thus, environmental protection law and regulation. Add citizen suits to the public nuisance mix, and environmentalists acquire enforcement power.

ALDF's wish to enforce animal cruelty law is a short leap through analogy in natural resource protection. Moreover, nuisance law in some states has a "per se" concept, like negligence law, by which the standard of right and wrong can be informed by statute. So ALDF bolstered its public nuisance claim by pointing to anti-cruelty statutes and wildlife conservation laws as public policy properly pronounced by the legislature.

ALDF further analogized to a peculiar but exigent strain of public nuisance law tied to morality.  In my 2020 talk, I made scant reference to this theory, in the interest of succinctness, but probably I should have given it a more respectful nod.

Historically, public nuisance law was used to shut down the likes of brothels and saloons.  Sometimes red-light businesses externalize costs to surrounding property owners that are real but difficult to quantify—consider the long-running feud between a Chicago-area strip club and next-door nuns, by which the convent alleged injury by "secondary effects" (as known in First Amendment law), such as crime and litter.  But many times, too, public nuisance laws have been invoked on the mere basis of moral objection.

In that sense, runaway public nuisance is a problem of the law's own creation.  Common law courts opened the door to nuisance in the moral abstract, untethering the concept from physical property.  ALDF just stepped through the door.  Society's intolerance of animal cruelty is a moral statement no less than condemnation of human trafficking.  As an animal advocate myself—full disclosure, I'm a founding faculty adviser of the student ALDF chapter and a past ALDF supporter—I find this theory appealing.

To be objective, though, the difficulty arises in that not everyone, least of all the legal system, embraces ALDF and my view of unequivocal morality in the area of animal cruelty.  The law permits even purely recreational hunts to kill exotic animals.  For all her worthy work, even Temple Grandin has not succeeded in making humane methods universal in food production.  Despite advancements in the recognition of human grief as a compensable loss in tort claims for injury to pets, the law continues to regard animals, for the most part, as mere chattel.

Such was the tone of the Washington Supreme Court's response to the ALDF claim.  ALDF could not articulate a conventional nuisance theory, in the way of interference with peace and enjoyment of land, and the court refused to engage with ALDF's theory as a matter of policy indicated by the animal cruelty or wildlife conservation laws.

"While ALDF cites to some cases that identify wildlife as a public resource," the court opined, "it cites no cases or statutes indicating that the public has a right to use that resource as it sees fit or has any individual, personal property rights in wildlife."

ALDF pointed to a seeming precedent to no avail. ALDF prevailed in a claim against a Wisconsin private zoo in federal court last year, winning a permanent injunction on a citizen-suit nuisance theory. However, the defendant had given up the fight partway through and allowed a default judgment to be entered. The Washington Supreme Court observed that the federal trial court in the case made no ultimate finding of fact that the private zoo was a nuisance.

In concurrence, Chief Justice Steven C. González left the door open, just a crack, and made a shout out, remarkably, to the theory of the rights of nature (RoN), if not by name.  Though agreeing with the holding, the chief opined (selective citations omitted; links added):

[T]he world has changed much since the days when King Henry II, Kukulkan, and the Great Khan were young. Now, the private use of land has profound potential to harm our ecosystem and the various species we share it with. It may well be time to heed Justice Douglas's call to consider whether those places and things threatened with environmental catastrophe should have standing in court to sue for their own injuries. See Sierra Club v. Morton ... (U.S. 1972) (Douglas, J., dissenting) (citing Christopher D. Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972)). Thus, I am wary of fully endorsing the majority’s sweeping conclusion that "[w]here the statutory framework and case law do not support a claim, none exists."

I'm all for ALDF's objectives, just like I'm gravely concerned about the impact of the opioid crisis. And I value the chief's assessment of common law evolution, an important capacity of American tort law that often is marginalized or forgotten in contemporary practice.  I have hastened to recognize the potential of common law evolution to reflect, not make, social policy in areas such as privacy and data protection.

But I worry, too, about misuse of the courts to make social policy; what the public will to do so tells us about possibly catastrophic dysfunction in the political branches; and what that means for the fabric of our democracy.

The case is Animal Legal Defense Fund v. Olympic Game Farm, Inc., No. 101264-1 (Wash. Aug. 17, 2023) (ALDF commentary).  Associate Chief Justice Charles W. Johnson wrote the opinion of the court.

Federal law shields car dealer in courtesy-car accident

CC0 by Open Grid Scheduler via Flickr

A car dealership could not be held vicariously liable to a pedestrian struck by a courtesy vehicle, the Massachusetts Supreme Judicial Court ruled in June.

A New Jersey Mercedes Benz dealer lent a customer, defendant Oke, a courtesy car while Oke's car was being repaired. After traveling to Boston (an apparent excess of the radius permitted by the courtesy-car contract), Oke left the key in the ignition, engine running, and his wife, Steele (no relation), in the passenger seat, while he attended to business. When a parking official demanded that the car be moved, Steele's attempt to do so resulted in collision with, and serious injury to, the pedestrian-plaintiff.

The laws of many states permit an injured person to pursue the owner of a vehicle in vicarious liability, regardless of the owner's fault. In a 2005 federal highway bill, Congress preempted and disallowed no-fault vicarious liability when the vehicle owner is a rental company. According to FindLaw, Congress was troubled by the likes of a $21m vicarious liability award against Budget in New York. The statutory language, "the Graves Amendment," was named for Rep. Sam Graves (R-Mo.), who estimated that vicarious liability awards cost car rental companies some $100m annually, a cost passed on to consumers.

The Supreme Judicial Court ruled that the Graves Amendment protected the New Jersey car dealer. The courtesy-car arrangement was part of the transaction for car service, the court reasoned, so akin to a rental agreement.

The court thus dismissed claims against the car dealer. However, reversing, the court remanded the plaintiff's claim against Oke for negligent entrustment. The trial court must resolve a question of fact, the court opined, before the negligent entrustment claim can be adjudicated. The plaintiff plausibly alleged that Oke had, under the circumstances, implicitly authorized Steele to move the car if necessary.

The surviving claim based on negligent entrustment provides a worthwhile reminder that, upon other facts, the Graves Amendment does not let car rental companies off the hook for liability theories in negligence, such as negligent entrustment and negligent maintenance.

The case is Garcia v. Steele, No. SJC-13378 (Mass. June 27, 2023) (FindLaw). Justice Dalila Argaez Wendlandt wrote the court's unanimous opinion.

Alumnus advises 1Ls

From a valued alumnus who's out there working to make the world a better place ...

Me thinking of @RJPeltzSteele during Torts on the first day of classes. pic.twitter.com/Vx5NPIKESw

— @voteunion©️2023 | #1u (@voteunion) August 31, 2023

Acuerdo en inglés para arbitrar vincula al firmante de habla hispana aunque no lo entendió, tribunal concluye

(English translation by Google: Agreement in English to arbitrate binds Spanish-speaking signatory even though he did not understand it, court rules.)

Un hombre de habla hispana se comprometió a un acuerdo de arbitraje en inglés incluso si no lo entendía, dictaminó ayer el Tribunal de Apelaciones de Massachusetts.

El día de su cirugía para corregir la visión con Lasik, el demandante Lopez firmó cuatro formularios en inglés, incluido el consentimiento y el acuerdo para arbitrar cualquier disputa. Más tarde, insatisfecho con la cirugía, Lopez presentó una demanda, alegando negligencia médica.

CC0

Revocando la decisión del Tribunal Superior, el Tribunal de Apelaciones ordenó la desestimación tras la moción del demandado de obligar al arbitraje.

Las cláusulas de arbitraje obligatorio han sido un punto de dolor para los defensores de consumidores durante décadas. Son una parte del problema de los términos de servicio densos y no negociables que son omnipresentes en las transacciones de consumo contemporáneas, tema de libros como Wrap Contracts (2013), por Nancy Kim, y Boilerplate (2012), por Margaret Jane Radin.

Los defensores de consumidores como Ralph Nader lamentan la eliminación masiva de disputas del sistema de justicia civil, un impacto en la Séptima Enmienda y una propagación democráticamente problemática de la justicia secreta. Y detrás de las puertas cerradas del arbitraje, las probabilidades favorecen a los negocios de manera tan abrumadora que alimentan dudas sobre la justicia. Los árbitros que no dictaminan la forma en que los demandados recurrentes corren el riesgo de quedarse sin trabajo.

A pesar de estos potentes motivos de preocupación, los legisladores y los tribunales se han puesto del lado de las empresas para proteger y hacer cumplir el arbitraje obligatorio, supuestamente para proteger al comercio de los intolerables costos de transacción de los litigios.

En el ley común de daños, el consentimiento y la asunción expresa del riesgo niegan la responsabilidad, porque se debe permitir que dos personas establezcan los términos de su propia relación. Podrán apartarse del contrato social siempre que los términos que fijen no violen el orden público; es posible que, por ejemplo, no acepten cometer una herida. En teoría, ambas defensas se basan en el acuerdo voluntario y consciente del demandante.

El demandante que firma un contrato sin leerlo cuestiona esta teoría. La firma evidencia el acuerdo subjetivo del demandante. De hecho, no existe ningún acuerdo subjetivo; el conocimiento y la comprensión de los términos acordados no se pueden encontrar en la mente del demandante.

La regla general es que la firma vincula de todos modos. Y en gran medida, esta regla es necesaria, incluso si significa que las personas están obligadas a cumplir términos que no habrían aceptado si los hubieran entendido. El comercio depende de la fiabilidad de los contratos. Si una parte del contrato  siempre pudiera impugnar la aplicabilidad basándose en testimonios interesados de malentendidos, entonces el litigio sería tan gravoso que paralizaría los negocios.

Un malentendido subjetivo puede causar un incumplimiento del contrato en el derecho de daños si mitiga la evidencia de la aquiescencia del demandante. Así, por ejemplo, las empresas a veces buscan establecer la asunción expresa del riesgo por parte de los clientes con un cartel que diga que "cualquiera que proceda más allá de este punto asume el riesgo de sufrir daños por negligencia." (A veces, tales carteles son exigibles por ley.) En tal caso, el demandante puede al menos argumentar que no vio el cartel, o, mejor, no lo entendió debido al lenguaje.

Desafortunadamente para Lopez, no conocía esos datos. El tribunal relató: "Lopez testificó que había vivido en Massachusetts durante doce años en el momento de su cirugía y había aprendido 'un poco' de inglés 'en las calles.'" (Las opiniones de los tribunales y el testimonio citado están en inglés; todas las traducciones aquí son mias.) El Tribunal Superior había determinado que "Lopez no tenía un comprensión suficiente del inglés para permitirle leer el Acuerdo de Arbitraje." Al mismo tiempo, la oficina de cirugía tenía un traductor de español disponible; Lopez no pidió ayuda. El hecho de su firma era inequívoco.

El tribunal razonó:

"Los contratos escritos tienen como objetivo preservar los términos exactos de las obligaciones asumidas, de modo que no estén sujetos a la posibilidad de una falta de recuerdo o una declaración errónea intencionada." [Grace v. Adams (Mass. 1868).] Esta regla de larga data 'se basa en la necesidad fundamental de seguridad en las transacciones comerciales." [Williston on Contracts (4a ed. 2022).] Estos principios legales subrayan que existe una "solemnidad [para] firmar físicamente un contrato escrito" que hace que una firma sea algo más que un simple adorno elegante en un documento. [Kauders v. Uber Techs., Inc. (Mass. 2021).]

Lopez testificó que no habría firmado el acuerdo de arbitraje si hubiera podido entenderlo. El mayor problema político para la protección del consumidor en Estados Unidos es que esta afirmación probablemente sea falsa, sin el beneficio de la retrospectiva. Es prácticamente imposible vivir en el mundo moderno—tarjetas de crédito, teléfonos móviles, sitios web, servicios públicos, viajes—sin aceptar un arbitraje obligatorio todos los días.

El caso es Lopez Rivera v. Stetson, No. 22-P-904 (Mass. App. Ct. Aug. 31, 2023). El juez Christopher P. Hodgens redactó la opinión del panel unánime, en el que también estaban los jueces Wolohojian y Shin.