Reason Magazine - Topics > Litigation

You Can Teach an Old Law New Tricks

mriggs@reason.com (Mike Riggs) — Thu, 10 Jul 2008 17:30:00 EDT

Social conservatives, terrified straight people, and resentful closet cases have dusted off a seldom-used Wisconsin law in order to oppress their gay neighbors:

Wisconsin law makes it a criminal offense to enter into a marriage outside the state if that marriage were illegal in Wisconsin.
The law was passed decades ago to prevent underage couples from crossing state lines to marry, but it could be used against same-sex couples, The Capital Times of Madison reported Wednesday.
The penalty is a fine of up to $10,000, nine months in prison, or both.

Gay rights advocates are confident that state prosecutors will leave the law where it belongs, in Wisconsin history, but that doesn't stop idiots, like this woman, from droning on about how gay marriages are an attempt to defraud the state.

Here are some more equally dumb laws that are still on the books around the country:

In California, It is illegal to own a green or smelly animal hide.
In North Carolina, no one may be a professional fortune-teller, and if one wishes to pursue the practice as an amateur, it must be practiced in a school or church.
In Rhode Island, one must make a loud noise before passing a car on the left.

And my new favorite:

In Kentucky, one may not dye a duckling blue and offer it for sale unless more than six are for sale at once.

Editor David Weigel wrote about dumb laws here.

Swift SLAPP

jsullum@reason.com (Jacob Sullum) — Wed, 09 Jul 2008 17:35:00 EDT

Last May property rights activists in Clarksville, Tennessee, ran an ad in a local paper urging their neighbors to oppose a redevelopment project that involves the use of eminent domain. The ad, sponsored by the Clarksville Property Rights Coalition, noted that Mayor Johnny Piper, City Councilman Richard Swift, and Downtown District Partnership member Wayne Wilkinson "are all developers" and declared:

This redevelopment plan is about private development. Our city government is controlled by developers....This redevelopment plan is of the developers, by the developers, and for the developers.

Not only did the plan win the city council's approval, but now Swift and Wilkinson are suing the coalition for defamation, seeking $500,000 in damages. Bert Gall, the Institute for Justice attorney who is defending the activists, says:

Swift and Wilkinson are thin-skinned bullies trying to silence and intimidate their critics with frivolous litigation. All citizens have a First Amendment right to speak out against government abuse-without getting sued for their speech by the very people whose actions they are protesting.

Careful there, Bert. Swift and Wilkinson might sue you too.

Nick Burns, P.I.

jsullum@reason.com (Jacob Sullum) — Thu, 03 Jul 2008 17:12:00 EDT

I recently paid a service called Geeks on Site to figure out why my computer kept hanging and freezing. After poking around for a day or so, the technicians were able to reduce my CPU usage and improve the computer's performance. The name of the company turned out to be something of a misnomer, however, since the technicians did all their work remotely. If you ask me, Geeks off Site would be more like it. But if you ask the state of Texas, the name should be something like Geek Investigative Services. Under a 2007 statute that the brand-new Texas chapter of the Institute for Justice is challenging in state court, almost anyone who fiddles with computers for a living could be deemed a private investigator. The ramifications of falling into that category are serious, since a private investigator has to obtain a state-issued license, which requires a degree in criminal justice or a three-year apprenticeship.

I.J., which is challenging the law under the state constitution, represents three computer repair businesses whose owners worry that the state will decide they are offering private investigative services without a license, a crime punishable by up to a year in jail and financial penalties of up to $14,000. Since the same penalties apply to people who hire unlicensed investigators, I.J. also represents a businessman who uses computer repair services. "If I was required to get a P.I. license to run my business," says one plaintiff, "I'd have to shut my business down." Another adds:

This law is totally unfair. It requires using someone who is more expensive and may not be as good, and it uses government power to limit the number of competitors who are out there. It is bad for consumers, and it is bad for entrepreneurs.

The Private Security Bureau, which issues P.I. licenses, tries (PDF) to reassure computer technicians who don't want to be confused with private investigators:

The distinction between "computer forensics" and "data acquisition" is significant. We understand the term "computer forensics" to refer to the analysis of computer-based data, particularly hidden, temporary, deleted, protected or encrypted files, for the purpose of discovering information related (generally) to the causes of events or the conduct of persons. We would distinguish such a content-based analysis from the mere scanning, retrieval and reproduction of data associated with electronic discovery or litigation support services.

But the statute is broadly worded, defining an "investigations company" as a business that is paid to "obtain or furnish information related to," among other things, "the identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location, affiliations, associations, transactions, acts, reputation, or character of a person." I.J. argues that "the definition of 'investigation'...encompasses many common computer repair tasks."

[Thanks to Todd Wolf for the tip.]

Dickie Scruggs Tries the Wrong Kind of Bribery

jsullum@reason.com (Jacob Sullum) — Mon, 30 Jun 2008 12:00:00 EDT

Richard Scruggs, the Mississippi plaintiffs' attorney who spearheaded the first state lawsuit seeking compensation for tobacco-related medical expenses from cigarette manufacturers, was sentenced to five years in prison on Friday. After Scruggs filed a lawsuit on behalf of Mississippi, many other states joined the shakedown, ultimately resulting in a settlement that brought more than $200 billion to state treasuries and billions more to lawyers like Scruggs, all at the expense of smokers forced to pay higher prices in a market rigged by a government-endorsed conspiracy in restraint of trade. But Scruggs is not going to prison for any of that. Bribing state governments with other people's money in exchange for huge kickbacks is perfectly legal. But bribing a state judge overseeing a dispute regarding your legal fees is not.

[Thanks to Bill Cook for the link.]

Murdering Hookers Is One Thing, but Having Sex With Them...

jsullum@reason.com (Jacob Sullum) — Thu, 26 Jun 2008 10:29:00 EDT

When I found myself in the unaccustomed position of seeing merit in a class action lawsuit, I knew it wouldn't be long before I came across one that was easier to ridicule. Even The New York Times has trouble keeping a straight face about the lawsuit over "hidden sex scenes" in Grand Theft Auto: San Andreas. Here is how what is ostensibly a news story about the case begins:

Lawyers who sued the makers of the video game Grand Theft Auto: San Andreas profess to be shocked, simply shocked, that few people who bought the game were offended by sex scenes buried in its software.
Any buyer upset about hidden sex in the violent game could file a claim under a settlement the lawyers struck with the game's makers, Rockstar Games, and its corporate parent, Take-Two Interactive. Of the millions of people who bought the San Andreas version after its release in 2004, exactly 2,676 filed claims.

Each of them will get coupons or discounts worth $5 to $35, at a total cost of less than $30,000. The lawyers, meanwhile, will get $1.3 million, equivalent to a contingency fee of 4,300 percent. They emphasize that Take-Two also has promised to make a "charitable contribution" of $860,000 to everyone's favorite charity, the Entertainment Software Ratings Board.

The problem is not just the extreme lopsidedness of the payments but the difficulty in figuring out exactly how consumers were injured by Take-Two's failure to completely eliminate the sex scenes that had been edited out of the official game. The scenes were "accessible only to knowledgeable players using third-party software," the Times notes, so it's not as if easily offended people accidentally stumbled upon them. In any case, how many easily offended people play Grand Theft Auto? Players who unlocked the sex scenes presumably viewed them as a bonus, not a bug.

The discovery of the scenes did lead to a change in the rating for the unexpurgated game, from M (for players 17 or older) to AO (for players 18 or older). That might make a difference to retailers and therefore affect Take-Two's ability to distribute the game, which is why it ultimately released a cleaned-up M version. But from the consumer's point of view, it's a trivial distinction. Since the only way to see the hidden scenes was to go looking for them, the only consumers who might have been upset about them would have been parents who bought the game for their more tech-savvy kids. They would have to be parents who are OK with a video game featuring the murder of police officers, prostitutes, amd random passers-by but draw the line at cartoony sex. To the credit of the American public, there don't seem to be very many of them.

Only Half a Billion

jsullum@reason.com (Jacob Sullum) — Wed, 25 Jun 2008 18:13:00 EDT

Today the U.S. Supreme Court cut a punitive damage award against Exxon for the 1989 Prince William Sound oil spill from $2.5 billion to $500 million. The original award, which had already been reduced by the appeals court, was $5 billion, 10 times the corresponding compensatory damages. In the majority opinion, Justice David Souter (joined by Roberts, Scalia, Kennedy, and Thomas) concludes that a 1-to-1 ratio of punitive to compensatory damages is an appropriate limit in cases like this one, involving the application of maritime law.

That question is different from the constitutional issue addressed by the Court in other cases dealing with punitive damages. In those cases, the Court has ruled that excessively high punitive damages violate the Due Process Clause, and it has indicated that multiples in the double digits are inherently suspect. In this case, by contrast, the Court sought to further the goals of maritime law by reining in "outlier punitive damages awards," thereby making judgments more consistent. The unpredictability of high punitive awards "is in tension with the function of the awards as punitive," says Souter, "because of the implication of unfairness that an eccentrically high punitive verdict carries." Since "most accounts show that the median ratio of punitive to compensatory awards remains less than 1:1," he says, that's a sensible upper limit.

Picking a ratio is inherently arbitrary, but less so than the highly variable judgments rendered by unconstrained judges and juries. "The real problem," Souter says, "is the stark unpredictability of punitive awards." He cites data indicating wide variability and "anecdotal evidence" suggesting that it is not justified by differences in the underlying facts. Maybe so, Justice John Paul Stevens says in his dissent, but this is a problem for Congress to fix. "While maritime law 'is judge-made law to a great extent,'" he writes, "it is also statutory law to a great extent; indeed, '[m]aritime tort law is now dominated by federal statute.'"

I tend to agree that legislation is a more appropriate response to the problems raised by arbitrary, unpredictable punitive awards, and many state legislatures already have imposed limits on punitive damages in the form of ratios or monetary caps. I'd prefer to see states and the federal government abolish punitive damages altogether, keeping civil lawsuits focused on compensation and imposing punishment for especially egregious conduct under criminal law. (Many of the people who said Exxon should pay billions in punitive damages conflated these two goals, arguing that victims of the Exxon Valdez spill were never adequately compensated, which is a separate issue.) But if we must have a parallel system of punishment, it's better to have one with statutory standards like those that govern criminal penalties.

I discussed the Exxon Valdez case in a column last fall.

Warning: Your Calories May Vary

jsullum@reason.com (Jacob Sullum) — Fri, 13 Jun 2008 13:27:00 EDT

It's not often I get to praise class action lawsuits and simultanesously agree with litigation enthusiast John "Sue the Bastards" Banzhaf, so I guess I should seize this opportunity. Seattle attorney Daniel Johnson has filed a lawsuit against the Applebee's restaurant chain for misrepresenting the fat and calorie content of its dishes. The lead plaintiff is a Washington woman who was dismayed to find that the items on the chain's Weight Watchers menu were a lot more fattening than Applebee's claimed. Johnson also has filed a would-be class action against Chili's, On the Border, and Romano's Macaroni Grill, saying those chains are guilty of similar misrepresentations.

These suits follow, and seem to have been prompted by, an investigation by Scripps Television Stations that found a wide divergence between nutritional information advertised by these chains and the results of independent laboratory analyses. The Cajun Lime Tilapia, Steak and Portobello, and Garlic Herb Chicken at Applebee's, for instance, had twice the advertised fat, while the Macaroni Grill's Pollo Margo Skinny Chicken had twice the advertised calories. As Katherine Mangu-Ward suggested last month, this sort of thing is not just a bad business practice but a form of fraud: selling something under false pretenses, knowing that the buyer is counting on certain features of a product and either deliberately lying about them or not caring enough to make sure the information is accurate. In a case like this, where the injury to any particular consumer is neither negligible nor serious enough to make an individual lawsuit worthwhile, a class action is an appropriate remedy. Johnson stands to gain much more from this lawsuit than any of the class members, but that is his reward for performing a genuine public service: encouraging restaurant chains to be more honest by creating negative publicity and forcing them to pay the cost of defending or settling the case.

A Man's Home is Another Man's Castle

info@reason.com (Damon W. Root) — Wed, 11 Jun 2008 15:00:00 EDT

Last Tuesday, voters in California faced the choice between two statewide initiatives, each claiming to protect property rights against eminent domain abuse. The loser, Proposition 98, which was sponsored primarily by the Howard Jarvis Taxpayers Association, would have imposed significant limits on the ability of state and local officials to seize private property using eminent domain, and would have phased out rent control everywhere in California. The winner, Proposition 99, which was championed by the League of California Cities, will do neither of those things.

In fact, despite being titled the "Homeowners and Private Property Protection Act," Prop. 99 will dramatically undermine the rights of California property owners, farmers, landlords, and renters. Of particular concern is the fact that Prop. 99 specifically protects only "owner-occupied residence[s]" from eminent domain abuse, leaving apartment buildings and other rental properties, not to mention family farms, churches, and small businesses, wide open for the taking. And even that flimsy safeguard contains loopholes. Under the most notable exception, owner-occupied residences may be condemned on behalf of "private uses incidental to, or necessary for," public works and improvements (emphasis mine). As George Mason University law professor Ilya Somin notes, "This means that homes could still be taken for transfer to private developers if the proposed project allocated some space for a ‘public' facility such as a community center or library."

So what happened? Did Prop. 99 trick voters into thinking they were protecting property rights when they were actually undermining them? Or did a majority of Californians simply reject Prop. 98's controversial attack on rent control?

The short answer is yes to both. As critics charged, Prop. 99 looked like a legitimate reform measure, despite the fact that it actually leaves city and state officials with vast powers to condemn and seize property. Moreover, for those voters opposed to eminent domain abuse but unaware of Prop. 99's fine print, it would have made sense to vote yes on both measures, just to be safe. Yet under Prop. 99, if both measured passed, "the provisions of this measure [99] shall prevail in their entirety." In other words, Prop. 99 benefited—by design—from both intentional and miscast votes.

But Prop. 98's critics had a point, too. Limiting what a landlord charges in rent is a far cry from seizing somebody's house and handing the property over to a developer. Furthermore, while reforming eminent domain is a popular issue in California (and elsewhere), ending rent control is highly controversial. So not only was including the anti-rent control plank a bad strategic move, it gave Prop. 98 the appearance of bad faith as well. To put it another way, why bundle an unpopular proposal with an extremely popular one unless you're trying something fishy?

In hindsight, it seems clear that Prop. 98 should have been a straightforward assault on eminent domain abuse. That approach would have attracted a broad coalition of support. Consider the various liberal and left-of-center voices that spoke out against Kelo v. City of New London (2005), where the Supreme Court allowed the Pfizer Corporation to acquire private property via eminent domain under the city's "economic revitalization" scheme. Rep. Maxine Waters (D-Calif.), for instance, declared, "the taking of private property for private use is in my estimation unconstitutional, un-American, and is not to be tolerated."

Similarly, the National Association for the Advancement of Colored People (NAACP), in the amicus curiae brief it filed on behalf of the victimized Kelo homeowners, charged that not only were Kelo-style takings in violation of the Constitution, their burden "has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and the economically disadvantaged." In California, however, groups representing racial and ethnic minorities and the elderly overwhelmingly lined up against Prop. 98, a testament to the measure's narrow appeal.

But the future isn't entirely bleak. Chip Mellor, President of the Institute for Justice, the libertarian public interest firm that litigated Kelo, recently told reason that the outcry against the Court's decision has resulted in forty-two states enacting "laws that change the status quo that was in existence at the time of Kelo." And while not all of these laws are perfect, "all of them are better than what existed before."

Prop. 99, of course, is now the exception to that statement, but Mellor's point remains strong. The Kelo backlash has sparked eminent domain fights from Brooklyn, New York to Raytown, Missouri. Too bad the authors of Prop. 98 squandered their shot at winning a real victory in California.

Damon W. Root is a reason associate editor.

White Folks Want to Run Blackjack, Too

mriggs@reason.com (Mike Riggs) — Wed, 04 Jun 2008 15:58:00 EDT

Non-indigenous casino owners are suing the state of Florida over an agreement between Gov. Charlie Crist and the Seminole Indians that grants the Seminole Hard Rock Hotel & Casino the exclusive rights to "offer blackjack, baccarat, around-the-clock poker and six high-stakes poker tournaments annually," in exchange for $100 million a year to the state's coffers:

"The Isle Casino of Pompano Beach claims the agreement between the state and U.S. Interior Department violates the federal Indian Gaming Regulatory Act, which allows tribes to play only those games already authorized in Florida.

The suit, filed Tuesday in Tallahassee, also alleges that Isle Casino would suffer irreparable injury if the tribe is allowed to open the blackjack games as planned on June 23 at its Hard Rock Casino near Hollywood."

Do the plaintiffs have a pretty good case against rent-seeking? Or, as a few sympathizers might point out, is the state finally making amends for a long history of mistreatment?

More reason on Indian gambling here.

30 Years Ago in Reason

Tue, 13 May 2008 12:00:00 EDT

“Scarcely a day goes by without new headlines on the decline of the dollar. In just the past 12 months it has dropped 16 percent against the Deutschemark, 20 percent against the yen, and 30 percent against the Swiss franc.”
—Robert Poole Jr., “Dodging the Falling Dollar”

“The Arkansas Supreme Court has decided that $10,000 is too high a price for the decomposed mouse that Betty McAlpin found in her half-consumed bottle of beer (Budweiser, if you’re interested) and reduced the damages Anheuser-Busch must pay her to $3000. Oh yes; the House just voted to legalize homebrew.”
—Bill Birmingham, “Brickbats”

“Adam Smith has now come to Asia—to the benefit, I might add, of its millions of inhabitants. And who knows, perhaps the success of economic freedom will spur repressive governments to loosen their grip on other areas of people’s lives.”
—Alvin Rabushka, “Pockets of Free Trade in an Unfree World”

"Merely a moderate opposition to the trend of centralized government"

info@reason.com (Damon W. Root) — Mon, 12 May 2008 22:24:00 EDT

Writing in the spring issue of the Manhattan Institute's City Journal, Gerald Russello, author of The Postmodern Imagination of Russell Kirk, offers a provocative review of Steven M. Teles' new The Rise of the Conservative Legal Movement in America. In Russello's view, despite a number of clear victories—most prominently the Supreme Court appointments of Justices Scalia, Thomas, and Alito—conservative legal activists have largely failed in their endeavors. Here's why:

Perhaps the very strategy that enabled such conservative successes has also limited it: conservative groups adopted some of the premises of judicial liberalism, pushing for activist federal courts and the use of rights language to achieve their goals. Conservative lawyers, like their liberal New Deal forbears, flocked to Washington to take posts in presidential administrations, too often leaving state legal systems at the mercy of liberals (like New York's Eliot Spitzer). Instead of developing a truly conservative legal philosophy based on decentralization and the rights of local communities, the conservative legal movement often became merely a moderate opposition to the trend of centralized government and heavy reliance on the courts to achieve political goals.

One of my problems with this is that Russello's "truly conservative legal philosophy" lets state and local governments off the hook for various assaults on individual rights. I'd also distinguish more carefully between the various groups under discussion. For instance, elsewhere in the article Russello describes the great Institute for Justice (IJ) as conservative, when in fact they're libertarian, probably the single best example of what a truly libertarian legal philosophy might entail.

But Russello is undoubtedly correct that the rights-based IJ approach has taken a beating in recent years, most notably in the double-whammy of 2005, when the Supreme Court came out in favor of eminent domain abuse (Kelo v. City of New London) and against medical marijuana (Gonzales v. Raich). Should we abandon hope and retreat to the states, or stick with IJ and keep fighting the good fight?

Whole thing here.

Hogwarts Law School

jwalker@reason.com (Jesse Walker) — Thu, 08 May 2008 16:30:00 EDT

Harry Potter gets along with his fans. Some media companies fire off menacing legal threats at the first sign that someone might be doing something unauthorized with one of their characters, but J.K. Rowling and Warner—the author of the Harry Potter books and the studio behind the Harry Potter movies, respectively—have had a generally tolerant attitude toward the amateur fiction, home movies, and online guides created by the boy wizard's fan base.

So some were surprised last fall when Rowling and Warner sued to stop RDR Books from publishing Steven Vander Ark's The Harry Potter Lexicon. The Lexicon is essentially a hard-copy version of Vander Ark's website, which collates information about the Potter series; the site is filled with detailed lists of the peoples, places, spells, and creatures that inhabit Rowling's world. Much of the text was drawn directly from Rowling's books, prompting the novelist to argue that Vander Ark intends to make money by repackaging her words. It's unclear how the courts will rule, but I'm inclined to agree with Columbia Law School's Tim Wu as to how they should rule. Wu wrote in Slate that Rowling "has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't….Textually, the law gives her sway over any form in which her work may be 'recast, transformed, or adapted.' But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing."

Yet even if the courts end up agreeing with Wu, Vander Ark has lost a more important battle. The Harry Potter fan community has overwhelmingly sided with Rowling, shunning Vander Ark and denouncing him with such phrases as "arrogant, egotistical, self-absorbed jerk." The reasons for this reaction are complex. In part it reflects the difference between a book sold for profit and a website offered for free. In part it reflects allegations that Vander Ark misled potential contributors into believing his book had Rowling's blessing. In part it simply reflects the fact that fans are predisposed to agree with their favorite authors. The case hasn't been decided yet, but in the court of his peers Vander Ark will be punished—is being punished—either way.

Speaking at the OnCopyright conference in Manhattan on May 1, Wu pointed out just how sharply this cuts against most people's expectations. Ordinarily we assume that the fan norms surrounding intellectual property will be looser than the letter of the law. This time, the law may be more permissive than the fans.

The conference was sponsored by the Copyright Clearance Center, a company that helps guide businesses, universities, and others through the thicket of licenses and permissions required by intellectual property law. There were four panels over the course of the day: one on copyright's collision with technology, one on copyright and society, one on copyright and the arts, and one on copyright and the law. The speakers ranged from industry figures eager to strengthen intellectual property controls to radicals ready to dump some rules into the harbor.

But the most important division on display wasn't the split between the conservatives and the reformers. It was the line that divided the law panel from all the others. The former featured three intelligent attorneys debating how the law should be interpreted and what the law should say. The latter featured artists, journalists, entrepreneurs, activists, and academics grappling with a world where people's behavior is governed much more by tools and norms than by statute books.

Kevin O'Kane, for example, is the man behind redlasso, a service that makes it easier to search for ongoing and recent TV and radio broadcasts, extract the parts you want, and drop them into the context of your choice. You could, for example, find all the references to the word "Myanmar" in the last 12 hours of TV news, pull out the appropriate clips, and add them to an online news commentary. The result, O'Kane hopes, will be an "online media center for bloggers."

There may come a day that CNN or Fox or a local broadcaster in Iowa City decides that this useful tool is a machine for piracy and takes redlasso to court. But you need only visit YouTube, Crooks and Liars, or any video-heavy blog to see that the Web already welcomes such efforts to recycle what used to be perishable content, that this enriches our ability to discuss the issues of the day, and that people across the political spectrum engage in this behavior without pause. If the law thinks they're wrong, then our norms may know something that our laws do not.

Nor did this informal borrowing begin with the Internet. On the arts panel, the novelist Jonathan Lethem spoke about the imitation and appropriation that has always been embedded in creative activities. Every artist begins by copying, he said, and some of the best—he singled out William Shakespeare and Bob Dylan—keep borrowing until the end of their life. This is part of the creative process, he argued, and it should be welcomed rather than banished.

Lethem has covered this territory before. Last year he contributed an article to Harper's called "The Ecstacy of Influence: A Plagiarism"; it not only touted the virtues of quoting and appropriating other people's work, but was itself largely stitched together from other writer's words, a fact revealed at the end of the essay when he listed the texts he had pilfered. It was a clever stunt, but it highlighted something important about creativity: not just the fact that writers draw on other people's work, but the fact that the best writers transmute those influences into something of their own. Lethem's novel Gun, With Occasional Music carries a critic's quote on the cover declaring that it "Marries Chandler's style and Philip K. Dick's vision." It's a good description: The book, a murder mystery that features talking apes and kangaroos, feels like a mash-up of Raymond Chandler's hard-boiled crime writing and Philip K. Dick's surreal science fiction. But it's impossible to imagine either Chandler or Dick producing this particular story. It's part Chandler, part Dick, and all Lethem.

The book also says something about what the world would be like without that free-flowing creative exchange. Where other dystopian novels imagine states that force individuals into a suffocating collective, the totalitarian society in Gun keeps people apart, by limiting the questions they can ask and the memories their minds can contain. The result is a world without communication and a world without a past—a world where every thought is an orphan work.

Not even the most militant copyright maximalists would consider that desirable. But even if they tried to impose such a restrictive regime, they'd be helpless in the face of technologies that make it easy to defy antiquated copyright rules, and in the face of norms that put more gentle restrictions on our behavior. The OnCopyright conference didn't give me the impression that the lawyers were on the verge of fixing America's intellectual property laws. But it did bolster my faith that we'll manage to muddle through anyway.

Jesse Walker is reason's managing editor.

Bush, Lies, and Retarded Monkeys

rbalko@reason.com (Radley Balko) — Tue, 06 May 2008 12:17:00 EDT

Last fall I wrote about Arizona anti-war activist Dan Frazier's tacky "Bush Lied/They Died" t-shirts, and about even tackier attempts by Congress and several state legislatures to ban them. The front of the shirts say "Bush Lied." The backs of the shirts say, "They Died," and feature the names of some 3,000 U.S. troops killed in Iraq.

Now comes a lawsuit (pdf) from the family of one of the late soldiers whose name appears on the shirt. The family's attorneys are seeking to make the suit a class action on behalf of the families of every solider listed on the shirt. One can sympathize with the family and still believe that (a) their suit is ridiculous, and (b) it looks as if they've hired a third-grader to represent them. For example, after arguing that Frazier's enterprise isn't protected by the First Amendment, and that even it is, Frazier should be forced to share his profits with the soldiers' families, the suit then states:

Most respectfully, this is a concept that even a mentally-challenged monkey could grasp, but, apparently, defendants cannot—or, more likely, refuse--to do so, for as defendant, Fraser [sic], stated recently to the Associated Press, he is “not worried” about the outcome of this litigation.

"Most respectfully?" Also, the attorney is asking for $40 billion in damages.

(Hat tip: Howard Wasserman)

Class Action Lawyers Get Creative

jsullum@reason.com (Jacob Sullum) — Thu, 01 May 2008 17:09:00 EDT

The good thing about class action lawsuits is that they allow enterprising lawyers to consolidate many small claims, any one of which would not be worth pursuing on its own, and win settlements for consumers who may not even realize they've been injured. The bad thing about class action lawsuits is that they allow enterprising lawyers to consolidate many small claims, any one of which would not be worth pursuing on its own, and win settlements for consumers who may not even realize they've been injured. Which category does Vibhu Talwar and Patrick Finkelstein v. Creative Labs fall into?

According to the settlement agreement, the lead plaintiffs, who filed their federal lawsuit in California, alleged that Creative had misled consumers by exaggerating the capacity of its MP3 players. The fraud allegation hinged mainly on two different definitions of gigabyte. According to the decimal definition (the only one I knew until today), a gigabyte is 1 billion (10⁹) bytes. According to the binary definition, a gigabyte is 1,073,741,824 (2³⁰) bytes. While Creative used the decimal definition in its advertising, the settlement says, "certain computer operating systems report hard drive capacity using a binary definition." On those systems, a 20GB Creative Zen player would register as only 18.6GB or so, about 7 percent less than advertised.

I see the potential for confusion (I'm confused just trying to explain the grounds for the suit), but I'm not sure this amounts to fraud, or that consumers have suffered an injury, or if they have that the injury amounts to anything in practical terms. I've got 8,346 tracks on my 40GB Creative Zen Nomad Jukebox (which for some reason registers on my computer as 38.1 GB, 2 5 percent less than advertised), and I still have 18.4GB to spare. I suspect the machine will die before I fill it up.

Still, according to the email notice I received today, I'm eligible for "a 50% discount off the price of a new 1 GB MP3 player" (which I have no interest in purchasing) or "a discount certificate good for 20% off the price of any single item purchased at www.us.creative.com" (which I might actually use). I guess the measliness of the settlement, which few "class members" will bother to collect, matches the imperceptibility of the injury pretty well. As usual in this sort of class action, the real beneficiaries are the lawyers, Brian Strange and Barry Fisher of Los Angeles, who will collect $900,000 for their trouble.

At least Strange and Fisher have done a public service by encouraging companies to be more honest. Or maybe not. As of 2003, Creative has included in its packaging a notice informing consumers that "1GB = 1,000,000,000 bytes," that "available capacity will be less" than total capacity (because of the operating software), and that "reported capacity will vary." But Creative offered that clarification two years before Strange and Fisher sued the company. I wonder where they got the idea for the lawsuit.

Meanwhile, on the Isle of Lesbos...

gillespie@reason.com (Nick Gillespie) — Thu, 01 May 2008 10:35:00 EDT

Reader H Clay points us to this BBC story about what might just be the ultimate nuisance lawsuit since The Simpsons' Lionel Hutz took on The Neverending Story:

Campaigners on the Greek island of Lesbos are to go to court in an attempt to stop a gay rights organisation from using the term "lesbian".
The islanders say that if they are successful they may then start to fight the word lesbian internationally.
The issue boils down to who has the right to call themselves Lesbians.
Is it gay women, or the 100,000 people living on Greece's third biggest island - plus another 250,000 expatriates who originate from Lesbos?
The man spearheading the case, publisher Dimitris Lambrou, claims that international dominance of the word in its sexual context violates the human rights of the islanders, and disgraces them around the world.
He says it causes daily problems to the social life of Lesbos's inhabitants....
In court papers, the plaintiffs allege that the Greek government is so embarrassed by the term Lesbian that it has been forced to rename the island after its capital, Mytilini.
An early court date has now been set for judges to decide whether to grant an injunction against the Homosexual and Lesbian Community of Greece and to order it to change its name.

The kicker to the story? Sorry, girls, Sappho was married: "According to Mr Lambrou, new historical research has discovered that Sappho had a family, and committed suicide for the love of a man."

Whole thing here.

The Puzzle of Punitive 'Damages'

jsullum@reason.com (Jacob Sullum) — Mon, 31 Mar 2008 14:48:00 EDT

Last week The New York Times ran a front-page story by Adam Liptak that describes the dismay caused in foreign courts by the American concept of punitive damages. It's not just that such awards are sometimes jaw-droppingly high; it's also that they serve a purpose, punishment/retribution, that is usually said to be a function of the criminal justice system, where defendants enjoy stronger procedural safeguards than they do in civil courts. Punitive damages—which are not really damages at all, since compensation for injuries is not the goal—invite juries to pick numbers out of thin air, with little or no statutory guidance, as an expression of how reprehensible they think the defendant's conduct was. And while the Supreme Court has said the Due Process Clause imposes some limits on the ratio of punitive to compensatory damages, it has not taken the next logical step of saying that when the goal is explicitly punishment rather than compensation, defendants should receive all the protections they would get in a criminal case, including a higher burden of proof for the accuser. To the outside world, Liptak reports, all of this looks pretty bizarre, ad hoc, and unprincipled:

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court [that refused to enforce a punitive damage award against an Italian company] explained, private lawsuits brought by injured people should have only one goal—compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.
Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators....
"The U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages is regarded almost universally outside the U.S. with a high degree of disfavor," said Gary Born, an American lawyer who works in London.
Foreign lawyers and judges are quick to cite particularly large American awards. Julian Lew, a barrister in London, recalled a Mississippi court's $400 million punitive award against a Canadian company in 1995 with scorn. "It did bring America into total and utter contempt around the world," Mr. Lew said.

I express my own high degree of disfavor toward punitive damages here and here, among other places.

The Ire of the Tiger

jsullum@reason.com (Jacob Sullum) — Mon, 07 Jan 2008 17:06:00 EST

In my column last week, I cited the recent fatal tiger attack at the San Francisco Zoo as an example of blame shifting, because it seemed likely that one or more of the men who were mauled did something to provoke the tiger. Since then new details have reinforced that impression:

1) A witness told the San Francisco Chronicle she saw the two men who survived, Kulbir and Paul Dhaliwal, taunting the lions at the big-cat house where the tiger escaped. Notably, she said Carlos Sousa Jr., the 17-year-old who reportedly died after distracting the tiger from the Dhaliwal brothers, thereby saving their lives, did not participate in the taunting and seemed embarrassed by his friends' behavior.

2) The police saw an empty vodka bottle in the front seat of the car the Dhaliwals took to the zoo.

3) ~~Paramedics told~~ ~~the Chronicle they overheard~~ Sources told the Chronicle that paramedics overheard Kulbir Dhaliwal instruct his younger brother, "Don't tell them what we did."

The Dhaliwal brothers, who have retained a lawyer and almost certainly plan to sue the zoo, still have not given a complete account of the attack, even to police. Since it failed to build a wall high enough to keep an agitated tiger from escaping, the zoo is not blameless. But whoever agitated the tiger enough to provoke such an unprecedented attack should not receive a windfall as a result.

[via Overlawyered]

The Buck Keeps Moving

jsullum@reason.com (Jacob Sullum) — Wed, 02 Jan 2008 06:57:00 EST

Critics of OxyContin manufacturer Purdue Pharma blame it for promoting abuse of the painkiller by encouraging family doctors to prescribe it. "As a result of the expanded access," said a recent New York Times story, summarizing the rap against the company, "OxyContin wound up in the high schools and street corners of rural America, where curious teenagers crushed the pill, defeating the time-release formula, and ended up addicts or, in some cases, dead."

Miraculous as OxyContin may seem to people suffering from severe chronic pain, it does not have the ability to crush itself and leap up the noses of innocent bystanders. No one "ends up" an addict without repeatedly choosing to seek out and consume a drug for the pleasure or emotional relief it provides. Drug treatment data indicate that regular OxyContin users are typically experienced illicit drug consumers who have undergone treatment before, not "curious teenagers."

Purdue Pharma, which pleaded guilty in May to "misbranding," may have misled doctors by telling them OxyContin was less subject to abuse than other opioids. But depicting OxyContin addicts as innocent victims of corporate greed is equally misleading, ignoring the decisions by which they determined their own fates.

There was no shortage of such responsibility-deflecting narratives in 2007. A few more highlights:

Kentucky Fried Lawsuit. Arthur Hoyte, a retired physician from Rockville, Maryland, sued KFC after discovering what he portrayed as the fast food chain's deadly secret: It fried its chicken in partially hydrogenated vegetable oil. (It has since switched to a trans-fat-free oil.) "If I had known that KFC uses an unnatural frying oil, and that the food was so high in trans fat, I would have reconsidered my choices," Hoyte said.

But the evidence Hoyte cited to back up his class action, which was supported by the Center for Science in the Public Interest, consisted largely of information KFC itself disseminated through its website and point-of-sale posters. In May a federal judge dismissed the suit.

Deadly Drinking. Last spring, after a fraternity initiation rite, Gary DeVercelly Jr., an 18-year-old freshman at Rider University in Lawrenceville, New Jersey, was pronounced dead at a Trenton hospital. He had a blood alcohol concentration of 0.43 percent. In August local prosecutors responded by charging three students and two university officials with "aggravated hazing," which carries a penalty of up to 18 months in prison.

Unless the administrators were at DeVercelly's side shouting "drink, drink," charging them seems like a stretch, even if you accept the premise that anyone should be held criminally liable for an adult's decision to consume three-quarters of a bottle of vodka in less than half an hour. Although the charges against the Rider officials were later dropped, last week DeVercelly's parents sued the university.

San Francisco Tiger. So far the story about the fatal Christmas Day attack at the San Francisco Zoo has focused primarily on the question of what the zoo should have done to prevent the tiger from escaping, the main criticism being that the wall around the enclosure was not tall enough. But the experts seem to agree that a Siberian tiger does not leap a 33-foot moat and scale a 12½-foot wall without provocation. "There had to have been a tremendous stimulus that made the tiger react the way she did," one told the San Francisco Chronicle.

The teenager who was killed, Carlos Sousa Jr., reportedly saved his friends, 19-year-old Amritpal Dhaliwal and his 23-year-old brother, Kulbir, by luring the tiger away from them. The brothers were hostile to the police, at first refusing even to give their names, and have yet to provide a public account of what happened.

Police found a shoeprint on top of the railing outside the enclosure, and the Chronicle reported that "pinecones and sticks that were found in the moat might have been thrown at the animal." Whatever role the Dhaliwal brothers played in the attack, you can be sure it will be further obscured by their inevitable lawsuit.

The Real Untold Story

ralt@ashbrook.org (Robert Alt) — Fri, 21 Dec 2007 13:03:00 EST

A $2.5 Million Misdiagnosis

bdoherty@reason.com (Brian Doherty) — Mon, 17 Dec 2007 09:31:00 EST

A woman misdiagnosed with AIDS and made ill by the medicines prescribed to her for 9 years wins $2.5 million in court. Some details from AP:

[Audrey] Serrano's attorney, David Angueira, said Dr. Kwan Lai, who treated his client at the University of Massachusetts Medical Center in Worcester's HIV clinic, repeatedly failed to order definitive tests even after monitoring of Serrano's treatment did not show the presence of HIV in her blood.
"It is one of the clearest cases of misdiagnosis that I have ever seen and it's based in part on a presumption that people who engage in certain types of conduct are more likely to have HIV and AIDS than other people without really listening to the patient," Angueira said after the verdict.
Lai testified last week that Serrano told her she had worked as a prostitute, her partner had AIDS, and that she had suffered three bouts of a type of pneumonia typically associated with those infected by the virus.
Serrano has denied she had ever been a prostitute. She confirmed that her former boyfriend tested positive for HIV/AIDS, but disputed the claim that she told the doctor that she had suffered bouts of Pneumocystis pneumonia.

Michael Moynihan blogged last month on millions of other people (mostly theoretical, still...) who were said to have AIDS but don't really.

Subpoenas of the Gods

jwalker@reason.com (Jesse Walker) — Tue, 11 Dec 2007 11:16:00 EST

A Telegraph correspondent in India describes a dispute "over ownership of a 1.4-acre plot in Dhanbad which adjoins a temple dedicated to Ram and another one dedicated to the monkey god Hanuman." The priest claims to own the land, while the congregants say it belongs to the gods themselves. To resolve the debate, a judge has

placed notices in newspapers...asking gods Ram and Hanuman to appear in his court next week to present their arguments.

"You failed to appear in court despite notices sent by a messenger and later through registered post. You are hereby directed to appear before the court personally," Judge Singh's notice stated.

The newspaper notices were published, in keeping with accepted Indian legal practice, after two summons dispatched to the plaintiff deities were returned because their addresses were "incomplete".

In a parallel development,

Tweety may get a chance to take the witness stand and sing like a canary. An Italian court ordered the animated bird, along with Mickey Mouse, Donald Duck and his girlfriend Daisy, to testify in a counterfeiting case.

In what lawyers believe was a clerical error...the court summons cites Titti, Paperino, Paperina, Topolino -- the Italian names for the characters -- as damaged parties in the criminal trial of a Chinese man accused of counterfeiting products of Disney and Warner Bros.

Notes on Unnoticed Notices

jsullum@reason.com (Jacob Sullum) — Tue, 20 Nov 2007 20:08:00 EST

New York Times legal columnist Adam Liptak notes the inanity of legal "notices" that notify no one:

"The publication requirement always struck me as a pointless waste of money," said Deborah L. Rhode, a law professor at Stanford who in divorce cases has represented poor women forced to buy ads to notify their missing husbands that they had been sued.
"It was particularly ludicrous for our clients, who were below the poverty threshold and had partners who would never be looking at the designated publication," Professor Rhode said. "It was a form of what we used to refer to as ‘sewer service.' " (The term refers to the fraudulent practice of claiming to have served legal papers on someone while actually tossing them in the sewer or trash.)
There are only two solutions, she said: "Either make a meaningful attempt to find people where fundamental rights are at stake, or dispense with what is truly form over substance."

The main opponents of this proposal (and of transferring the notices to cyberspace so they can go unread there) are newspapers that want to keep the revenue from selling ads to people who are legally required to buy them.

Long-Arming the Libel Tourist

jsullum@reason.com (Jacob Sullum) — Mon, 19 Nov 2007 18:12:00 EST

Last week the New York Court of Appeals heard arguments in a case that pits freedom of speech against British libel law. Israeli-American criminologist Rachel Ehrenfeld is challenging a libel judgment against her obtained by Saudi billionaire Khalid bin Mahfouz, whom she identified in her 2003 book Funding Evil as a source of financial support for terrorism. Last June the U.S. Court of Appeals for the 2nd Circuit allowed her lawsuit to proceed, but the case hinges to some extent on issues of state law, one of which the New York Court of Appeals is now considering: whether New York's "long arm" statute can reach a defendant such as Bin Mahfouz who is outside the U.S.

Calling Bin Mahfouz to account before a U.S. court seems only fair, given his strategy in trying to shut Ehrenfeld up. Although her book was published in the U.S., Bin Mahfouz sued her in London to take advantage of England's pro-plaintiff libel rules, which he has used to intimidate other critics into silence. The excuse for suing Ehrenfeld in the U.K. was that people there (possibly cronies of Bin Mahfouz) had bought 23 copies of the book online. In 2005 a British judge issued a default judgment against Ehrenfeld, ordering her to apologize, pay Bin Mahfouz about $230,000, and destroy all copies of her book. Jared Lapidus, a fellow at the Moving Picture Institute ("Promoting Freedom Through Film"), has produced an eight-minute documentary about the case, which the prominent civil libertarian (and reason contributor) Harvey Silverglate calls "one of the most important First Amendment cases of the past 25 years." Although Lapidus gets a little distracted by how awful the Saudis are, the video does communicate the dangers of libel tourism pretty well.

I mentioned the Ehrenfeld case on Hit & Run last month. Silverglate considered the implications in a 2006 Boston Globe op-ed piece co-authored by Samuel Abady. Katherine Mangu-Ward interviewed Rob Pfaltzgraff, the Moving Picture Institute's executive director, in the October issue of reason.

$23,000-a-Barrel Oil

jsullum@reason.com (Jacob Sullum) — Wed, 31 Oct 2007 06:55:00 EDT

When does oil cost $13,000 a barrel? When you spill it in Prince William Sound. That's how much Exxon paid after one of its tankers ran aground on Bligh Reef near the southern coast of Alaska in 1989, spilling 258,000 barrels of oil.

The company spent more than $3.4 billion on clean-up costs, fines, and compensation payments. Yet in 1994 a federal jury in Anchorage said Exxon should cough up another $5 billion in punitive damages, a number that an appeals court eventually cut in half.

Now the U.S. Supreme Court has agreed to decide whether that punitive damage award, by far the largest ever upheld by an appeals court, is consistent with maritime law. In addition to raising that question, the gargantuan judgment casts doubt on the very concept of punitive damages.

The case was a class action brought on behalf of some 33,000 fishermen and other individuals who argued that they had not been adequately compensated by Exxon's voluntary payments after the accident. The jury put their compensatory damages at $287 million, an award that came to about $20 million after the earlier payments were subtracted. The $5 billion punitive award was 250 times as high.

The legal wrangling that followed the trial focused on whether that eye-popping award was so disproportionate that it violated the constitutional right to due process. The litigation took 13 years, mainly because the Supreme Court was simultaneously issuing rulings that said the Due Process Clause places limits on punitive damages but did not clarify what those limits are.

The U.S. Court of Appeals for the 9th Circuit said Exxon's employment of Joseph Hazelwood, the tanker captain who precipitated the accident by leaving the bridge during a crucial maneuver, was "reckless," since management knew he was "a relapsed alcoholic." Yet the court also emphasized that the damage caused by the crash was not intentional and that Exxon acted quickly to mitigate and repair it.

Finding that the "reprehensibility" of Exxon's conduct was neither low nor high, the 9th Circuit figured a middling ratio of punitive to actual damages was appropriate. Based on a 5-to-1 ratio and a damage estimate of $500 million (almost twice the compensatory award), it calculated that $2.5 billion was an appropriate number.

The Supreme Court has said ratios in the single digits are "more likely to comport with due process." But it also has said that "when compensatory damages are substantial" even a 1-to-1 ratio "can reach the outermost limit of the due process guarantee." Combine this ambiguity with the various possible interpretations of what should count as actual damages, and a court can rationalize just about any number.

Perhaps not surprisingly, the Supreme Court has chosen not to wade once again into this due process thicket. Instead it will consider whether federal maritime law, a form of common law dealing with ships at sea, allows punitive damages in a case like this one and, if so, whether it imposes limits on them.

These questions illustrate the fundamental problem with punitive damages: They're not really damages at all; they're punishments. Like criminal penalties, they're supposed to serve the goals of deterrence and retribution. Exxon argues, pretty plausibly, that the $3.4 billion it already has paid is "more than enough to deter and punish anyone for anything."

Given the impact that the Prince William Sound disaster had on Exxon's reputation as well as its finances, oil companies have a strong incentive to avoid anything like it in the future. As for retribution, it's a tough concept to understand when it's applied not to culpable individuals such as Joseph Hazelwood but to corporations owned by shareholders who are innocent of any wrongdoing.

In any event, Exxon was already punished, paying the U.S. government a criminal fine prescribed by statute. It should not be punished again for the same conduct under rules that allow fines to be pulled out of thin air.

Pulped Nonfiction

jsullum@reason.com (Jacob Sullum) — Mon, 15 Oct 2007 16:45:00 EDT

In a recent New York Times op-ed piece, Michael Broyde and Deborah Lipstadt, professors of law and Jewish studies, respectively, at Emory University, decry "libel tourism," in which unhappy book subjects use plaintiff-friendly defamation laws to punish, silence, and intimidate their critics. They cite a 2004 suit that Saudi billionaire Khalid bin Mahfouz filed against Rachel Ehrenfeld, author of a 2003 book, Funding Evil, that charges him with financing Osama bin Laden and other terrorists:

Mr. bin Mahfouz sued Ms. Ehrenfeld for libel in Britain, where libel laws impose an onerous burden on authors to prove the truth of their statements, and in 2005 won a default judgment ordering her to apologize, destroy all copies of the book and pay the sheik roughly $230,000 in damages.

The book had never been published or sold in Britain, but about 20 people had ordered it online and had it shipped there. British courts asserted jurisdiction, and Ms. Ehrenfeld found herself subject to the laws of another country.

The touchy Bin Mahfouz—co-founder of the Muwafaq Foundation, which the U.S. Treasury Department considers an Al Qaeda front—was also behind a decision by Cambridge University Press to pulp the 2006 book Alms for Jihad: Charity and Terrorism in the Islamic World, an outcome he achieved simply by threatening legal action. Look for an interview with a co-author of that book in the December issue of reason.

But the Ehrenfeld decision goes further, since Alms for Jihad at least had a British publisher. Under the logic of this ruling, books never officially released in the U.K.—including books whose publishers decided against releasing them there precisely because they feared the legal peril that doing so would entail—are still subject to British libel laws if people in the U.K. (say, would-be libel plaintiffs or their friends) happen to order the book online. As Broyde and Lipstadt note, "it appears that wealthy and powerful people who object to a book can simply find a country with sympathetic laws, have a book shipped there and sue." U.S. courts have yet to decide whether the order against Ehrenfeld can be enforced here.

Oddly, Broyde and Lipstadt's piece does not mention Lipstadt's own brush with British libel law, in which she triumphed over revisionist historian David Irving, who sued her over her 1993 book Denying the Holocaust. In that case, Lipstadt's publisher, Penguin, stood by her, unlike Cambridge in the Alms for Jihad case.

Earlier this month Michael Moynihan noted David Irving's comeback tour.

[Misspelled name fixed.]