"Strict liability" in tort law is liability without fault. That is, more precisely, it is liability without regard for fault. Lawyers and social scientists have much debated the theoretical foundation and doctrinal justifications for strict liability. After talking recently with a scholar-colleague in Honduras, I think strict liability may be on the rise in a new class of cases in Latin American environmental law. Meanwhile, we use strict liability, in the United States, in certain classes of tort cases, such as when the defendant is a seller of a defective product, or the defendant was engaged in an "abnormally dangerous" activity, such as dynamiting.
Professor George Fletcher in 1972 posited one theoretical basis for strict liability as the "paradigm of reciprocity":
The general principle expressed in all of these situations governed by diverse doctrinal standards is that a victim has a right to recover for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant—in short, for injuries resulting from nonreciprocal risks. Cases of liability are those in which the defendant generates a disproportionate, excessive risk of harm, relative to the victim’s risk-creating activity. For example, a pilot or an airplane owner subjects those beneath the path of flight to nonreciprocal risks of harm.
The downed plane is the paradigmatic paradigm exemplar, albeit tragic. But space news from a Michigan backyard, where no one was hurt, provides this week a happier occasion to consider the professor's proposal.
As the sun sets in the U.S. East, I was prepared to let Halloween slide by on the blog, even though so many great tort-related items perennially crop up, and an eagle-eyed 1L Jason Jones sent me an excellent story about the super creepy McKamey Manor (YouTube) haunted house in Summertown, Tennessee (Guardian video coverage four years ago). Then Professor Christine Corcos (of Media Law Prof Blog, via TortsProf List) alerted me to WaPo coverage of McKamey, and Ronny Chieng incorporated McKamey into his Halloween edition of"Everything is Stupid" on The Daily Show (here for the blog, not the classroom).
The "petition" referenced in the news coverage (linked above, top) refers to a Change.org petition, not a legal action. Yet. The case would be useful to consider tort claims, such as the infliction of emotional distress, as well as defenses, such as consent and assumption of risk, vitiation on public policy grounds, and the American ethos of personal responsibility.
Thanks to my TA, here's an even better item, funny without the dark angle, bringing a lawyer into the picture: the first two segments of Nathan For You s1e05.
Most recently in June, I wrote about the faculty lawsuit against the University of Arkansas System to protect academic freedom, as the university tries to cut back on tenure protection for both past and future hires. The case is tracked by Professor Josh Silverstein, at his blog, Jurisophia, where the most recent filing is a September reply brief in support of defendants' motion to dismiss.
I had lost track in my inbox of this short segment (click box below) from Fox News in June, below, in which Arkansas named plaintiffs, my friend and mentor Professor-Attorney Tom Sullivan among them, schooled anchors on how academic freedom and tenure should be a bipartisan cause.
The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. complaint filed May 31, 2019).
I've freshly endured my own reminder at UMass Law of how
readily academics turn on each other. As I nurse the knife wound in my
own back, I find myself re-sensitized to how American university
administrators today exploit the ruthless faculty penchant for
self-preservation to further the faculty's own fall
and the rise of bureaucratic hegemony in its place. Ultimately if
indirectly, the most devastating impact of this dynamic is visited on
the students who should be the beneficiaries of the educational mission.
A reporter stopped me on a run last week to obtain my critical policy analysis of the bridge-replacement situation on the East Bay Bike Path. Suffice to say, my testimony was breathless.
So this one was the vision of what happens if things don't go the
way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now
call the neo liberal left was ignoring workers' needs and was not paying
attention to the things that give rise to populism and only the right
was paying attention to those needs.
[Rorty] said, 'at that point, something
will crack. The non-suburban electorate will decide that the system has
failed and start looking around for a strong man to vote for. Someone
willing to assure them that, once he is elected, the smug bureaucrats,
tricky lawyers, overpaid bond salesmen and postmodernist professors will
no longer be calling the shots.
'One thing that is very likely to happen
is that the gains made in the past 40 years by black and brown
Americans and by homosexuals will be wiped out. Jocular contempt for
women will come back into fashion. All the resentment which badly
educated Americans feel about having their manners dictated to them by
college graduates will find an outlet.'
—The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,
quoting the speculative fiction of philosopher Richard Rorty in 1997
The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library. Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal. Ian Donnis, political reporter for The Public’s Radio, will moderate.
The First Amendment has been much in the news lately, in our strange times. Two items from my listen-and-read list. First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.
In part one of three, Marantz challenges First Amendment absolutism. That's not a big reach, but lays out the context for his discussion. In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine. It's familiar territory until he hits Citizens United(about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speechauthor P.E. Moskowitz. The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.
The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality. As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical. Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.
Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection. At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement. Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.
A Sandy Hook parent won a $450,000 defamation award in Wisconsin last week, when I was out of town. The case is interesting not only as a collateral installment in the litigation aftermath of the 2012 Sandy Hook school shooting, but as an installment in the legal system's ongoing grappling with misinformation in mass media, so-called "fake news."
Lenny Pozner, father of decedent six-year-old Noah Pozner, won his defamation suit against Sandy Hook deniers James H. Fetzer and Mike Palecek in June, on summary judgment. A jury trial was had only on the question of damages. In the complaint, Pozner claimed severe mental distress, besides the requisite reputational harm. Now This News has more about Pozner's ordeal, beyond the traumatic loss of his son:
The crux of the falsity in the defamation claim was defendants'
assertion that Pozner was in possession of and distributing a
falsified death certificate. Attached to the complaint, Noah Pozner's death certificate reports the cause of death, "Multiple Gunshot Wounds." Lenny Pozner alleged that the defendants' assertion appeared in a 2016 book, edited by Fetzer and Palecek, Nobody Died at Sandy Hook, and on Fetzer's conspiracy-theory blog. The book publisher earlier settled and agreed to stop selling the book.
James Fetzer is a UMD Philosophy Professor Emeritus and conspiracy
theorist. He retired from UMD in 2006. His theories are his own and are
not endorsed by the University of Minnesota Duluth or the University of
Minnesota System. As faculty emeriti, Fetzer's work is protected by the University of
Minnesota Regents Policy on Academic Freedom, which protects creative
expression and the ability to speak or write on matters of public interest
without institutional discipline or restraint.
The university deserves a lot of credit for respecting academic freedom even in these challenging circumstances. Fetzer meanwhile has cast the loss in Wisconsin as a book banning and offense to freedom of the press.
Fetzer and Palecek have books for all occasions. One title, still for sale, is And Nobody Died in Boston Either, referring to the 2013 Boston Marathon bombing. Three people were killed at the scene in Boston, and more than 200 were injured.
Meanwhile on the Sandy Hook litigation front, the Connecticut litigation against Remington Arms is still pending cert. petition in the U.S. Supreme Court. Remington seeks to nullify the Connecticut Supreme Court ruling allowing victim-family plaintiffs a thin-reed theory to circumvent federal statutory immunity. Plaintiffs filed their responsive brief on October 4, and Remington filed a reply on October 18.
[UPDATE, Nov. 13, 2019: The U.S. Supreme Court denied cert. in the Remington case, so it will go back to the trial court in Connecticut.]
Last week the American Society of Comparative Law (ASCL) met at the University of Missouri Law School. I was privileged to participate among 120 scholars from 20 countries.
As part of the works-in-progress program at the front end of the conference, I presented the most recent iteration of my work on access to information law, comparing private-sector transparency and accountability measures in South Africa with selected standards in Europe.
I benefited from exchange of critique from a room full of participants, including co-panelists James Maxeiner of the University of Baltimore and Kwanghyuk (David) Yoo of the University of Iowa. Maxeiner presented a fascinating comparative study of lawmaking in Germany and the United States, showing the inventive ways that lobbying-driven American lawmakers might learn from Germany's variegated means of incubating potential legislation. Yoo talked about U.S. and European Union court decisions on antitrust challenges to patent settlements in the pharmaceutical industry: when a company settles a lawsuit to keep a patent challenger out of the market, when does dispute resolution cross into anti-competitive misconduct?
The panel was moderated by Missouri’s Mekonnen Ayano, a Harvard doctoral graduate and formerly an Ethiopian judge and World Bank legal counsel. University of Missouri Dean Lyrissa Lidsky, an accomplished media law scholar, attended and live-tweeted the panel.
[UPDATE: Vainly adding photos with me in them, courtesy of Mizzou Law.]
Prof. Maxeiner and I listen in the lecture hall.
I puzzle over dinner options.
I ramble about ATI in Africa with the generous ear of moderator Prof. Ayano.
