An Amusingly Inapt Citation to Orin Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012)

I learned today on Twitter that Orin’s one-page article, A Theory of Law was cited in its first judicial opinion. Given what the article says (go ahead, read it, I’ll wait), I was rather surprised to hear this, so I went and read the citing passage:

Both claims also allege conspiracy to commit negligence. See Compl. ¶¶ 127, 141. This is a logical impossibility and borders on the incoherent. Because civil conspiracy requires a deliberate—i.e. intentional—agreement to accomplish a particular end, see Hoffman v. Stamper, 867 A.2d 276, 291 (Md.2005), whereas negligence requires unintentional conduct, see, e.g ., Restatement of Torts (Second) § 282 cmt. d (negligence “excludes conduct which creates liability because of the actor’s intention to invade a legally protected interest), one cannot conspire to be negligent. Cf. Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012) (observing, albeit tongue in cheek, that some propositions are so obvious that they have never been expressly stated).

(The case is Lombel v. Flagstar Bank, 2013 WL 5604543 (D.Md. 10/11/13), and I’m not sure it’s online.)

What really amuses me about this is that Orin’s article was cited for the proposition that “some propositions are so obvious that they have never been expressly stated,” but the proposition that the district court was talking about (“one cannot conspire to be negligent”) has in fact been stated — repeatedly!

For example:

As Justice Siracuse aptly recognized in Lindsay v. Lockwood, 163 Misc.2d 228, 625 N.Y.S.2d 393 (Sup. Ct. Monroe Cty.1994), because a claim of conspiracy requires a showing of intentional conduct, “there can hardly be conspiracy to commit negligence.” Id. 625 N.Y.S.2d at 396. Indeed, numerous courts of other jurisdictions have reached the same conclusion. See Sonnenreich v. Philip Morris Inc., 929 F.Supp. 416, 419 (S.D.Fla.1996) (recognizing in the context of a lawsuit against tobacco manufacturers that “[l]ogic and case law dictate that conspiracy to commit negligence is a non sequitur”); Rogers v. Furlow, 699 F.Supp. 672, 675 (N.D.Ill.1988) (“[w]hat the plaintiffs suggest is a conspiracy to commit negligence, a paradox at best”); Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 n. 2 (Tex.1995) (“[g]iven the requirement of specific intent, parties cannot engage in a civil conspiracy to be negligent”).

Sackman v. Liggett Grp., Inc., 965 F. Supp. 391, 395 (E.D.N.Y. 1997)

The Mitlof court cited as examples Wright v. Brooke Group Ltd., 114 F.Supp.2d 797, 837 (N.D.Iowa 2000) (“because conspiracy requires an agreement to commit a wrong, there can hardly be a conspiracy to be negligent—that is, to intend to act negligently”); Haskin v. R.J. Reynolds Tobacco Co., 995 F.Supp. 1437, 1440 (M.D. Fla.1998 (no civil conspiracy to commit reckless or negligent acts because they are unintended); Sackman v. Liggett Group Inc., 965 F.Supp. 391, 394 (E.D.N.Y.1997) (same); Sonnenreich v. Philip Morris, Inc., 929 F.Supp. 416, 419 (S.D.Fla.1996) (“Logic and case law dictate that a conspiracy to commit negligence is a non sequitur”); Rogers v. Furlow, 699 F.Supp. 672, 675 (N.D.Ill.1988) (“a conspiracy to commit negligence [is] a paradox at best”); Campbell v. A.H. Robins Co., Inc., 615 F.Supp. 496, 500 (W.D.Wis.1985) (“The real problem with the plaintiffs’ theory … is that it is incomprehensible. Precisely how the defendants, or anyone else, can conspire to cause negligent harm … is inexplicable.”). See also Baublitz v. Peninsula Reg’l Med. Ctr., 2010 U.S. Dist. LEXIS 81791, at *20 (D.Md. Aug. 12, 2010) (“This Court would agree that one cannot agree or conspire to be negligent.”); In re Nat’l Century Fin. Enters., Inv. Litig., 504 F.Supp.2d 287, 327 (S.D.Ohio 2007) (“It is impossible to conspire to commit negligence” (internal quotation and citation omitted)); Belser v. Ammon, 2005 Cal.App. Unpub. LEXIS 5149, at *7 n. 4 (Cal. Ct.App. 1st Dist. June 14, 2005) (“The law does not recognize a conspiracy to commit negligence. A conspiracy by definition requires intentional agreement to commit or achieve a specific outcome. It is, in other words, an intentional tort. It is a non sequitur to speak of parties agreeing to fail to exercise due care. The authorities on this point are unanimous.”); Triplex Comm., Inc. v. Riley, 200 S.W.2d 716, 719 n. 2 (Tex.1995) (given the requirement of specific intent, parties cannot engage in a civil conspiracy to be negligent”); Lindsay v. Lockwood, 163 Misc.2d 228, 625 N.Y.S.2d 393, 396 (Sup.Ct. Monroe Cty.1994) (“there can hardly be a conspiracy to commit negligence”). In criminal context, see United States v. Sdoulam, 398 F.3d 981, 987 (8th Cir.2005) (“We agree with [defendant] that one cannot conspire to commit a negligent or unintentional act”).

Ho v. United States, 2012 WL 6861343 (D. Minn. Dec. 11, 2012).

So while it is indeed true, as Orin says, that “some claims are so obvious … that they have not been made before,” and while I’m glad the court cited Orin, this claim has in fact been made a bunch of times, and finding the cases is trivially easy. (I searched Westlaw for “‘conspiracy to commit negligence.'”). Maybe that’s why the court used a “cf.”