here. Rappaport is a leading scholar of late 1700s constitutional thinking -- much more expert in the field than I am.

When I blogged about the case, several commenters asked whether the ACLU would get involved. I'm pleased to say that the ACLU just filed a motion to file an amicus brief on our side:

ACLU seeks to participate in this case to urge this Court to reverse the lower court's decision that Appellant's conduct was criminal rather than protected expression under the First Amendment.... As described more fully in the Statement of Interest that will be submitted in the briefing should this motion be granted, the lower court's decision in this action violates the constitutional guarantee of free speech and creates a new, unconstitutional standard to judge such cases.

Now we'll just have to see what the Nebraska Supreme Court does. (Recall that at this point the decision before the court is only about whether to agree to further review the Nebraska Court of Appeals' opinion, not about whether to reverse that opinion on the merits.)

From Justice Scalia's & Bryan Garner's Making Your Case:

If your brief repeatedly refers to the Secretary of Transportation and mentions no other Secretary, it is silly to specify parenthetically, the first time you mention the Secretary of Transportation, "(hereinafter 'the Secretary')." No one will think that your later references to "the Secretary" denote the Secretary of Defense, or perhaps your own secretary.

In Kazemzadeh v. U.S. Attorney General (11th Cir. Aug. 6), Kazemzadeh — an Iranian citizen — claimed asylum because he had converted to Christianity, and said he faced persecution in Iran. The Board of Immigration Appeals rejected the claim, largely because it concluded that Iranian persecution of converts away from Islam was in fact very rare (though in theory apostasy could carry the death penalty). The panel reversed, on the grounds that "the Board did not consider whether enforcement is rare because apostates practice underground and suffer instead that form of persecution to avoid detection and punishment." And being forced to practice underground, the panel concluded, is itself a form of persecution.

What is particularly interesting to me, though, isn't that legal question (on which I think the panel was correct), but the broader policy issue raised by the risk that many people might pretend to convert in order to stay in the U.S. The majority stressed that there was no finding that Kazemzadeh was insincere, but the dissenting judge pointed out that there was a dispute about his sincerity, and that the Board needs to consider it:

In this case, although the Immigration Judge never directly addressed the issue of credibility, she commented throughout her order on the numerous questionable aspects of Kazemzadeh’s religious conversion. First, she stated that his “inability to explain what communion is ... seemed inconsistent with any significant involvement with the religion” since communion is a “central aspect of Christianity.” She also noted that he attended weekly Bible classes less than once per month, and opined that he should be making “the effort to attend as many of those classes as possible in order to learn a religion for which he alleges that he’s willing to risk his life.” After noting that Kazemzadeh decided to become a Christian approximately two months after he began attending church, the Immigration Judge stated that “it was[] [not] clear how much he knew in those two months that [led] him to make a life-time commitment that would put him at odds with his family and with his country.” She also pointed out factual inconsistencies between Kazemzadeh’s testimony and that of his pastor, and she expressed suspicion about the authenticity of documents he provided as evidence of his conviction and his expulsion from the university he attended in Iran. Finally, in her conclusion, the Immigration Judge noted that the swiftness of Kazemzadeh’s acceptance of Christianity “does not evidence a lifetime commitment.”

And whether or not Kazemzadeh is sincere, there does seem to me to be a serious risk that the availability of asylum for Iranian converts away from Christianity will lead some people to pretend to become Christians. The right to live and (in several months) work in the United States is a very valuable benefit, even if it means that one can never safely return to one's home country.

That's what State v. Hynes, decided by the New Hampshire Supreme Court yesterday, basically holds.

N.H. Rev. Stat. Ann. § 637.5 provides, in relevant part, that "A person is guilty of theft" if he gets money by threatening to do any "act which would not in itself substantially benefit him but which would harm substantially any other person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships." Of course, threatening to file a well-founded lawsuit unless one is paid a settlement is quite legal, and generally properly so. Under the statute, that would be a threat to do an act which would in itself substantially benefit the threatener. But, the court held, a baseless lawsuit would not in itself provide a substantial benefit to the plaintiff, so threatening such a lawsuit in order to get a settlement is extortion.

The court did not discuss what mental state the plaintiff would have to have to be punished, since the defendant didn't preserve the issue for appeal. But I take it that under general criminal law principles, the plaintiff would have to know that the lawsuit was baseless, or at least to know that there was a substantial and unjustifiable risk that the lawsuit was baseless.

Here, by the way, is the court's summary of the facts that the jury could have found in convicting the defendant:

The defendant is an attorney who was admitted to the New Hampshire and Massachusetts Bars in 2006. In December of that year, he sent a “Cease and Desist/Demand Letter” to Claudia Lambert, the owner of Claudia’s Signature Salon in Concord (the salon). The letter, written on “Daniel P. Hynes Esq.” letterhead and noting his admission to the New Hampshire Bar, stated:

I am writing in regards to your company’s policy of pricing for different types of haircuts. It has been brought to my attention that your business charges $25 for haircuts but $18 for a Men’s cut and $12 for a children [sic] haircut. Such a distinction in price based on gender and age is discrimination in violation of the law. Accordingly, I demand you immediately cease this unfair pricing and charge customers in a more appropriate manner, such as by the length of their hair or the amount of time it would take.

The letter claimed that the salon’s practice was both unlawfully discriminatory in violation of RSA 354-A:17 (2009), and constituted an unfair trade practice in violation of RSA chapter 358-A (2009). The letter went on to state:

I demand that you immediately cease your unlawful practice of charging for haircuts based upon age and gender. Should you not comply I will be forced to file a complaint with the State Commission for Human Rights while reserving all rights to remove and file in Superior Court. In addition, I demand payment in the amount of $1000 in order to avoid litigation .... I believe $1000 is a fair amount as it is the minimum that would be awarded for an unfair trade practice alone. You have ten (10) days to comply .... Should you fail to comply additional steps will be taken including filing with the State Commission for Human Rights and potential removal to Superior Court. If such action is necessary I will seek all remedies available including but not limited to an injunction, damages for discrimination, damages for the unfair trade practice, ill-gotten gains, punitive damages, attorney fees and costs. If you object or otherwise wish to discuss the above matter you may have your attorney contact me.

The court concluded that the threatened lawsuit would have been baseless, chiefly because the relevant statutes would not have provided Hynes with a cause of action, since defendant "lacked a client and did not personally patronize the salon" and therefore didn't have standing to challenge the discrimination. A dissenting judge disagreed, concluding that "the defendant could have realistically believed that he had standing," because

[T]here is at least some suggestion in our jurisprudence, albeit in the context of employment discrimination, that to bring this type of claim, a person need not actually sustain an injury as a result of a discriminatory practice. While I agree with the majority that our employment discrimination cases can be distinguished from the instant case, the fact remains that, until today, we have not distinguished them.

An interesting trial court opinion I just ran across, though it was decided in May 2006. [UPDATE: Link fixed.] It doesn't break any new legal ground, but it does provide an interesting perspective, I think, on a particular kind of problem, and how some courts approach it. From the facts:

1. Plaintiff is C__ C. Al-R__, an adult citizen of Pennsylvania and the United States of America, residing in Millville, Columbia County, Pennsylvania.

2. Defendant is F__ S. Al-R__, an adult citizen of Saudi Arabia residing in Tabouk, Saudi Arabia.

3. The parties met while they were students at the University of Scranton in Scranton, Pennsylvania. Plaintiff graduated from the University of Scranton with a Bachelor of Science degree in May of 2000 and received a Master of Science in School Counseling degree in May 2003.

4. The parties were married on August 28, 2001, in Honesdale, Wayne County, Pennsylvania, in an Islamic ceremony. She had converted to Islam by accepting the five basic precepts of the Islamic religion prior to the marriage. She never converted to “cultural” Islam as it is observed in Saudi Arabia.

5. While living in Pennsylvania, plaintiff became pregnant with the parties' child. Defendant wanted to move to Saudi Arabia to live and raise the child. Plaintiff was reluctant but agreed to relocate on a trial basis. She did some superficial research on what life would be like for her and her family in Saudi Arabia. Defendant did not fully disclose to her what life was like for women in Saudi Arabian culture, although he fully knew or should have fully known the difference since he had lived in both cultures for significant periods of time. Plaintiff had never lived in the Saudi culture.

6. Defendant knew that plaintiff was a strong-willed woman who would have a difficult time adapting to a controlling Saudi male dominated culture....

As I understand it, the purely legal issue is whether the wife lived with the daughter in Pennsylvania starting August 31, or was simply visiting there, for at least a couple of weeks. But the answer, according to the court, seems to turn quite substantially on the nature of the problems that the wife was facing in Saudi Arabia, and on the husband's responsibility for the problems — apparently since that bears on the legally significant question of whether the mother intended to establish residency in Pennsylvania, and perhaps whether the father should have recognized that intent. (Note the finding that "When plaintiff did not return to Saudi Arabia in August 2005, defendant knew or should have known that she would not return.")

Likewise, the court's conclusion that the plaintiff didn't engage in "unjustifiable conduct" (which would have statutorily stripped the court of jurisdiction) seems influenced by the situation the wife faced in Saudi Arabia, and the husband's possible responsibility for that situation. In any case, you can read the whole opinion for more on this.

is here.

Prof. Peter Spiro (Opinion Juris) responds to my earlier post, saying (among other things):

First, joining the Convention makes sense in a conventional national interests analysis. America’s failure to join will cost it more than signing on. There is already a drumbeat on the subject: US nonparticipation is a boilerplate punchline among international actors critiquing US human rights practice. That doesn’t present a direct harm to US national security (in, say, the way that Guantanamo has), but it nibbles away at the national interest. Given the small cost of participation (especially as conditioned by some reasonable package of reservations and understandings), ratifying the treaty looks the preferred, rational choice.

But even if we don’t sign on, the convention’s substantive terms will insinuate themselves into US practice. Eugene assumes that the US can say no to the CRC, that America can insulate itself from universal international practice (to anticipate Ken’s objection here, universal at some core discursive level even if many other countries have attached significant reservations to their ratification). I don’t think so. There are too many entry points for international law, including through state governments, nonstate actors, and the courts.

Take the CRC provision barring life sentences for juvenile offenders, among those which Eugene finds objectionable. I’d be willing to make a small bet that within the next 20-25 years that practice is halted in the US, whether or not we formally join the CRC. It might be the courts that put a stop to it, a la Roper. It might be state governments that come around on their own, in the face of ramped-up international static. Nonstate actors (including academics) will be a part of the picture. In any event, the international norm will be a driver. That is, the fact that international law has moved to ban the practice will be consequential, policy aspects of the question aside. That’s something that international law skeptics have trouble understanding: the material power of international law.

Now, as I argued in my original post, I find the "foreigners dislike us for our not signing the Convention" argument to be unpersuasive. In principle, I'm fine with doing (cheap) things to produce foreign goodwill that might eventually translate into material benefit for us. I'm just skeptical that the sorts of "international actors critiquing US human rights practice" to whom our nonparticipation in the Convention is "a boiler punchline" will really change their views about us if we ratify in the Convention; and I'm also skeptical (though more tentatively) that those listening to them will change their views about us.

But Prof. Spiro's post also identifies -- perhaps inadvertently -- why signing the Convention might not be cheap. Displeased as I am with the Convention, I'm much more hostile to other aspects of "international practice," such as the norm that governments must suppress so-called "hate speech," the norm of not protecting an individual right to bear arms, and the norm that governments must suppress certain kinds of anti-religious speech (a norm that is not yet entrenched but that some are trying to create). Yet Prof. Spiro has long argued that such norms are likely to insinuate themselves into American constitutional law, even to the point of leading courts to take a more restrictive view of the First Amendment. And even in the post I quote above, Prof. Spiro has likewise argued that foreign norms are likely to insinuate themselves into American law, even if we don't ratify the Convention.

What can people like me, who like American free speech rules, American right to bear arms rules, and the like do to prevent such erosions of our rights? Well, note that Prof. Spiro's claim that "even if we don’t sign on, the convention’s substantive terms will insinuate themselves into US practice" isn't a matter of some ineluctable physical law. Rather, it's an artifact of domestic opinion. "International practice" is influential to the extent that it has a high reputation among American decisionmakers, perhaps because they see Americans generally as approving of the influence of international practice. It is much less influential if it is broadly condemned as illegitimate by Americans.

If we accept that we should conform with "international practice," then we'll conform; or if our presumption with regard to "international static" is to change our understanding of human rights and proper legal rules, then we'll change them. But if we broadly adopt a view that our rights are a matter for us, and that we should bristle at foreign attempts to impose foreign "practice" rather than feeling cowed by such attempts, then our legal rules are more likely to be preserved in the state that we as Americans would like them to be without regard to foreign pressure.

Now one possible reaction, of course, might be to pick and choose -- to subscribe to those treaties that we like but not the ones we dislike, to take seriously "international practice" arguments but to reject those we disapprove of, and so on. But as I read Prof. Spiro's argument, such a nuanced response will fail: Even if we consider a proposed treaty and reject it, its "substantive terms will insinuate themselves into US practice" despite our rejection. That's true as to the Convention on the Rights of the Child. It would presumably be similarly true as to international conventions that demand the punishment of so-called "hate speech," or of harsh criticism of religions. We can try to pick and choose, but those that we've chosen to reject will still "insinuate themselves" into our law.

It seems then that the one reaction that will most diminish the chance of rejected rules' "insinuat[ing] themselves" is a thoroughgoing condemnation of the influence of the relevance of international practice, and of the legitimacy of allowing such practice to influence our practice. If case-by-case attention to international norms won't be enough to block those norms that we rejected, then it seems to me that only a broad hostility to international norms will suffice.

So if Prof. Spiro is right about the power of rejected treaties to "insinuate themselves" -- a big "if," I realize -- then I think those of us who deeply oppose some international norms (I mention again the norm of compulsory suppression of so-called "hate speech") need to reject many treaties simply for the sake of rejecting the treaties, so at to better create a culture in which international norms have the least chance of insinuating themselves. Every such treaty that's rejected will help reinforce the protection that our law offers to the independence of our own domestic legal tradition.

To be sure, such rejectionism may sometimes be too costly. If we have something serious and likely to gain from accepting a particular treaty, we should be open to that benefit. But we should recognize that there's always a cost, even of a treaty whose terms are by themselves unobjectionable: the risk that endorsing such treaties (and especially "human rights" treaties) will promote a legal culture supporting the erosion of American legal principles that go against "international practice."

(Of course, to the extent that some people find that they agree more with the "human rights" norms of Europeans than of Americans, they may welcome the replacement of American human rights norms in America with more European norms. I write this post, though, from the perspective of someone who prefers American human rights norms, imperfect as they are, over European norms, and who wants to maximize American flexibility to maintain those norms.)

If you're really interested in Islamic law and the law of the Muslim world, check out the Social Science Research Network forthcoming article database on the subject. Plus you can subscribe to the abstract distribution service, I believe for free. (My understanding is that the SSRN makes money from universities that pay for the right to post their faculty papers to various SSRN series, and not from readers.)

I've just printed out the Political Liberalism, Islamic Family Law and Family Law Pluralism: Lessons from New York on Family Law Arbitration paper and the Honor Killings and Cultural Defense (with a Special Focus on Germany) paper, and look forward to reading them.

How is that, pray tell? Here's the argument:

Perhaps because the poster is ultimately a racially charged image. By using the "urban" makeup of the Heath Ledger Joker, instead of the urbane makeup of the Jack Nicholson character, the poster connects Obama to something many of his detractors fear but can't openly discuss. He is black and he is identified with the inner city, a source of political instability in the 1960s and '70s, and a lingering bogeyman in political consciousness despite falling crime rates.

The Joker's makeup in "Dark Knight" -- the latest film in a long franchise that dramatizes fear of the urban world -- emphasized the wounded nature of the villain, the sense that he was both a product and source of violence. Although Ledger was white, and the Joker is white, this equation of the wounded and the wounding mirrors basic racial typology in America. Urban blacks -- the thinking goes -- don't just live in dangerous neighborhoods, they carry that danger with them like a virus. Scientific studies, which demonstrate the social consequences of living in neighborhoods with high rates of crime, get processed and misinterpreted in the popular unconscious, underscoring the idea. Violence breeds violence.

It is an ugly idea, operating covertly in that gray area that is always supposed to be opened up to honest examination whenever America has one of its "we need to talk this through" episodes. But it lingers, unspoken but powerful, leaving all too many people with the sense that exposure to crime creates an ineluctable propensity to crime.

Superimpose that idea, through the Joker's makeup, onto Obama's face, and you have subtly coded, highly effective racial and political argument. Forget socialism, this poster is another attempt to accomplish an association between Obama and the unpredictable, seeming danger of urban life. It is another effort to establish what failed to jell in the debate about Obama's association with Chicago radical William Ayers and the controversy over the racially charged sermons of the Rev. Jeremiah Wright.

Obama, like the Joker and like the racial stereotype of the black man, carries within him an unknowable, volatile and dangerous marker of urban violence, which could erupt at any time. The charge of socialism is secondary to the basic message that Obama can't be trusted, not because he is a politician, but because he's black.

Joker = "urban" = "inner city" = black. True, he's white, Heath Ledger is white, but ... But what exactly? All references to white "urban" criminals are actually secretly to blacks? The references to William Ayers were, too?

Also, if we're looking for supposed racial connections here, wouldn't the Socialism reference cut the other way? Karl Marx, François Mitterand, Bernie Sanders, no? Or does even Socialism (which to Americans is mostly a European phenomenon, with pockets of support among mostly white prominent American liberal academics) still become black when coupled with the Joker -- who is white but of course black because he's urban and a criminal?

Quite an argument, it seems to me. Thanks to Jules Crittenden for the pointer.

From the homeland of Franz Kafka, evidence that modern litigation dragging on forever is not just an American phenomenon:

[I]n the early days of the Velvet Revolution, in November 1989, three students of architecture described their Communist professor as an arrogant careerist and demagogue.... [I]n 1991 [the professor] took the students to court for defamation of character, and demanded an apology. They refused.

Eighteen years later, and the case is still languishing in the Czech courts. On Tuesday the Constitutional Court in Brno heard its third complaint in the case, and for the third time ruled in the students’ favour.... The lower court will now resume hearing the case....

Thanks to Ted Schuerzinger for the pointer.

From the Las Vegas Sun article that I quoted below:

He said he was not aware that any of the companies were already engaged in illegal activity at the time that he helped to set up them.

My guess: The author or the copyeditor was enforcing some (entirely spurious) rule against splitting an idiom such as "set up," and as a result replaced a perfectly normal construction ("set them up") with a weird and jarring one. I wouldn't go so far as to say that "set up them" is ungrammatical; it's as grammatical as "set up the companies" would be. But it is surely unidiomatic, as a Google Fight reveals; a search through Google News shows an even more lopsided tally, 200:1 in favor of "set them up" rather than 20:1. I'm with Horace's view that custom is the test of good usage, and "set them up" is customary.

Maybe I'm wrong, and maybe "set up them" was just a spontaneous error. But to me it smacks of a general splitophobia, raised to a new level.

UPDATE: Some commenters suggested the problem might be an attempt to avoid a preposition at the end of a sentence; that might be.

On the other hand, Mark Liberman (Language Log), who's a real linguist, did what real scholars do -- which is to say some research. His conclusion, based on the Sun's and others' past practices: "The sentence that Eugene Volokh found is probably an inadvertent editorial error, not a mistaken editorial choice." He also says (as does his colleague Bill Poser) that,

"... helped to set up them" (with the relevant structure and interpretation) really is ungrammatical, i.e. well outside the norms of contemporary English, not just (as Eugene suggested) "unidiomatic". The only (marginal) exception, I think, would be cases with contrastive stress on the pronoun, e.g. "First we'll set up YOU, and then we'll set up THEM".

I happily defer to the view of experts here, especially since they are experts whose work I've long admired.

S.C. Stats. §§ 63-19-2440 and -2450 generally ban under-21-year-olds from possessing or consuming alcoholic beverages. (There are some exceptions, including for consumption in religious ceremonies and in the minor's parent's home.)

But South Carolina Constitution, art. XVII, § 14 provides,

Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one.

Respondent further argues that § 16-23-30 violates the state constitution because the age group of 18- to 20-year-olds is being treated differently than adults aged 21 and above....

Article XVII, § 14, specifically makes reference to the fact the General Assembly can restrict the sale of alcoholic beverages to persons until age 21. By expressly allowing the regulation of the sale of alcoholic beverages to the 18- to 20-year-old age group and not stating any other situation in which the General Assembly may restrict the rights of this age group, the state constitution precludes the General Assembly from prohibiting this age group’s possession of handguns. See Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000) (the canon of construction “expressio unius est exclusio alterius” or “inclusio unius est exclusio alterius” holds that “to express or include one thing implies the exclusion of another, or of the alternative”); see also Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) (when interpreting a statute, the words must be given their plain and ordinary meaning without resorting to subtle or forced construction which limit or expand the statute’s operation).

So while the constitutional provision expressly allows bans on sale of alcoholic beverages to under-21-year-olds, it doesn't authorize bans on possession (or for that matter bans on transfer other than by sale). Two magistrate judges have indeed so held, and the logic strikes me as quite right, given the text of the provision and the reasoning in the handgun possession decision (State v. Bolin).

The Las Vegas Sun reports:

State Sen. Mike Schneider today agreed to pay $150,000 in punitive damages to settle a defamation lawsuit brought by his 2004 election challenger, Danny Tarkanian....

Schneider accused Tarkanian of setting up telemarketing companies that were later found to be running scams and that he turned “state’s evidence” against the telemarketers to avoid being prosecuted.

Tarkanian practiced civil law until 1995 and admitted he helped set up the companies but had no involvement in the day-to-day operations of any of them. He said he was not aware that any of the companies were already engaged in illegal activity at the time that he helped to set up them.

Lief Reid, a former Deputy Attorney General, testified that Tarkanian was not part of the investigation into the companies....

Schneider testified that he relied on his investigator and campaign team for the veracity of the information....

My sense is that such lawsuits by political candidates are quite rare, for several reasons, including that:

1. The coverage of the lawsuit necessarily repeats the original charges.

2. It’s hard to prove “actual malice” and therefore the plaintiff will often lose even if he’s right on the substance.

3. Such lawsuits are very expensive.

4. Such lawsuits give the defendant an opportunity to conduct discovery that might unearth other things that the plaintiff might not want revealed.

Nonetheless, political candidates are as entitled to protection from false and defamatory statements of fact said with knowledge that they're false, or reckless disregard of the substantial risk of falsehood, as are other public figures. And presumably the jury concluded that the defendant did indeed know the statements were false, or recklessly disregarded that possibility.

By the way, here's what I say in my syllabus about the alienation of affections and criminal conversation. I hope the "pedagogical goals" section helps explain why I've decided to include it, though part of the reason is just that it's a fun subject that's likely to get students excited, which is especially important late in the semester.

Alienation of affections basically consists of a defendant’s (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff’s spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child’s best interest such behavior might not be “wrongful.” In practice, it has generally been applied to lovers who seduce one spouse away from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant’s attentions). The related tort of criminal conversation basically consists of a defendant’s having adulterous sex with plaintiff’s spouse; but for our purposes, we’ll treat that as a subset of alienation of affections (which is indeed the approach in some states).

These torts have been largely abolished, but remain recognized in Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. And they are not infrequently litigated, especially in North Carolina: A 2006 article in the Greensboro News & Record reports that “People filed an average of 245 such suits per year in North Carolina between 2000 and 2005, according to data provided by the state Administrative Office of the Courts.”

By way of comparison, the well-established right of publicity tort seems to be litigated much less often (2 cases since 2000 in the NC-CS and NC-TRIALORDERS Westlaw databases, as opposed to 38 for the alienation of affections). Even on a national basis, an ALLCASES search for sy(“right of publicity” ((misappropriat! appropriat!) +5 (name likeness image))) & date(> 1/1/2000) yielded 150 cases, while sy((alienat! +3 affection) "criminal conversation") & date(> 1/1/2000) yielded 66, of which 50 were in jurisdictions that still recognize one or both of those torts. So there’s life in this old tort yet, though query whether there should be.

Pedagogical goals: (1) Throughout most of the class, we’ve discussed how tort law has substantively expanded, so that formerly nontortious behavior is now treated as tortious. It’s easy to assume, even unconsciously, that this trend is natural, irreversible, and right. But these torts help illustrate that torts could also be abrogated, either through judicial or statutory decision. (This has also happened in narrower contexts as to negligence and strict liability—consider, for instance, some tort reform proposals that have capped damages.) And considering the rejection of these torts might lead us to ask, especially in the coming units: Should any other torts be rejected or dramatically narrowed as well?

(2) The rejection of these torts also leads us to ask: Why would courts or legislatures reject liability for behavior that is pretty clearly wrongful (which adultery is, even if some forms of alienation of affections might not be), and that is pretty clearly emotionally damaging to the victim? Did they conclude that the damage wasn’t real enough, because it isn’t physical? (That would also bear on some of the other torts we’ve been discussing in the last few units, and that we’ll discuss in the coming units.)

Did they conclude that the behavior should be within people’s zone of liberty? (Why would that be so, about adultery? Also, should the same rationale apply to some of the other torts we discuss below?) Did they conclude there were especially severe problems of proof for these torts but not others? Did they have any other reasons?

(3) And we should be open to the possibility that the progress of the law here has been mistaken, and should be reversed. Should states readopt the torts. Why, or why not?

So having yet again heard about how the U.S. is the only U.N. member, other than Somalia, not to sign the U.N. Convention on the Rights of the Child, I decided to read the thing. This led me to be tentatively pleased that we haven't signed and ratified it. (I say tentatively because my view is based on just reading the treaty; it's possible that I've misread parts or missed important counterarguments, so I'd be happy to be enlightened in the comments about any errors I may have made.)

I think that we generally shouldn't ratify treaties unless we're prepared to comply with them and be bound by them for the future, and I think there are many provisions that I think we shouldn't accept. Nor do I see any strong reasons to adopt this particular treaty. I don't see the treaty as materially furthering justice and human rights in the U.S.; our legal treatment of children is hardly perfect, but I don't think the provisions would help it. Nor do I see our ratifying the treaty as likely to materially advance decent treatment by other countries. While I'm sure that some people are mocking us for not ratifying it, I doubt that our ratifying it or not would actually materially affect foreign regard for us in any way that's useful to us.

And while in some situations I think it's quite proper to ratify treaties that we have no desire to comply with, if some important national security concern calls for it — I certainly don't think that compliance with treaties and honesty in international relations are inexorable commands — I think the presumption should be not to sign things unless we're willing to comply with them. (That the treaty won't be self-executing, and thus generally doesn't become domestic law until there's affirmative Congressional action to implement it, doesn't change the analysis: We would still be obligated by our promise to enact such implementing statutes, so we shouldn't sign unless we're prepared to do so.)

Here are a few of my specific objections:

1. Article 37(a) would not only ban capital punishment for crimes committed when the criminal was under 18, but also bans life imprisonment without the possibility of parole in such cases. I highly doubt that such a ban is wise, and while I'm open to being convinced, I certainly don't think that we should accept it as a binding obligation that covers all the states.

2. Article 3, section 1, says that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Yet American law rightly provides that some restrictions on parental rights can't be done under a mere "best interests" standard. Parental rights, for instance, can't be entirely terminated unless the parent is outright unfit. Courts can't consider a parent's interracial relationship in a child custody decision (that's Palmore v. Sidoti) even if they conclude that the relationship in some measure undermines the child's best interests, for instance by risking social harassment of the child. Many courts have said that courts can't restrict parents' religious teachings on the grounds that the teachings are against the child's "best interests," unless the teachings are likely to be seriously harmful to the child. And that's even in divorce cases, where the best interests standard usually applies — courts are even more constrained in restricting parental teachings when the family is intact.

   It's possible that all these constraints on the best interests standard would be trumped by article 3. Perhaps this can be evaded by saying that best interests need only be "a" primary consideration, and not the only one (though how can it be a "primary" consideration if parental rights often trump it?). But that's far from clear to me, and it seems to me better not to accept such a provision rather than finding a way of evading it.

3. Article 3 would also apply to "private social welfare institutions," even when no risk of imminent physical or serious psychological harm to the child would take place. Presumably such social welfare institutions would have to be barred from instead making the parents' preferences, or the institution's and parents' shared religious views, the primary factor.

4. Under article 12, section 1, sufficiently old and mature children would have to have the legal right "to express [their] views freely in all matters affecting the child," and to have "due weight" given to those views. Whether that's sensible or not, I don't think that the entirety of the U.S. should be bound to such a rule as a matter of international commitment.

5. Article 14, section 3 might overturn Employment Division v. Smith in some measure, by providing that "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others." If "manifest" is read as "act based on" and not just "publicly speak about," that would mandate that all states adopt at least a limited religious exemption regime. While I support states' imposing such regimes as a matter of statute, which can be modified by a later state statute — when the legislature disagrees with courts about what is necessary to protect public safety and the rights of others — I oppose the federal government's imposing such regimes as a matter of treaty, which can't be modified by each state legislature.

6. Article 24, section 3, article 27, and possibly article 18, section 3 seem to require that governments provide certain kinds of welfare state benefits, such as free assistance for disabled children. Though American governments likely provide most such benefits already, I don't think we should commit the federal government and state governments to providing such benefits. Rather, I think we should be free to have such benefits ebb and flow with domestic public opinion. I'd say the same about compulsory education rules as well as government-funded primary education, which article 28 requires, though that's likely hypothetical, since compulsory free primary education is so entrenched in American life.

In any case, these are just some of the concerns I have. I suppose we could avoid them by ratifying the treaty with various reservations. But again that strikes me as valuable only when there's real value to us in signing the treaty (especially when there would have to be many reservations).

Note: There's a famous and longstanding dispute about whether it's constitutional for Congress, acting pursuant to a treaty, to do things that it would otherwise lack the power to do (such as mandate religious exemptions from all state and local generally applicable laws). But even if Congress couldn't do this, as a matter of U.S. constitutional law, ratifying the treaty would obligate it to do all it can — for instance, to propose a constitutional amendment that would let the nation comply with its treaty obligations, or (more likely) to pressure states into complying with the treaty through threat of loss of funding. So the objections I raise above are present regardless of one's view on this Congressional power question.

UPDATE: I originally cast the post in terms of signing the treaty, since if the President signs the treaty he's presumably committing himself to trying to get the Senate to ratify it. To be more precise, I've mostly changed "sign" to "ratify," since it is indeed the legally operative ratification that strikes me as especially troubling. But for my purposes there's no distinction between whether we should sign the treaty and whether we should ratify it.

I've finally finished my syllabus and supplemental readings for the Torts class I'll be teaching this Fall; if you want to take a look, it's here. I try to create pretty detailed syllabuses for my first-semester students, in which I discuss the pedagogical goals for each unit and often pose questions or give background information; that ends up being about a page per unit, which together with the supplemental readings and some preliminary materials means I've had to produce 104 pages. A lot of work up front, but I think that it pays off during the semester.

In any case, I thought I'd mention what we'll be covering. We'll begin with trespass, and the defense of necessity. We'll go on to negligence, causation, strict liability, product liability (which is partly strict liability and partly negligence), and nuisance. We'll do damages, contributory and comparative negligence, and assumption of risk. We'll then cover intentional infliction of emotional distress, intentional interference with contract, intentional interference with prospective economic advantage, alienation of affections and criminal conversation, disclosure of embarrassing facts, and the right of publicity.

That's a lot of coverage, but the class is 5 units (i.e., 250 minutes per week) and runs 14 weeks. The readings thus end up being only 6 to 7 pages per unit, pretty modest as law school readings go. And I hope it gives students exposure to a wide range of concepts and principles that arise routinely in tort cases, including business tort cases and not just personal injury cases. (If I had still more time, I'd have liked to include some of the falsehood-based torts, such as fraud, negligent misrepresentation, and trade libel.) If you're curious, check out the syllabus.

UPDATE: Note that the view at UCLA is that our classes aren't primarily aimed at preparing students for the bar, though we hope that the concepts and skills we teach will help them on the bar. Likewise, while we tend to focus on areas that are practically important -- which is why I don't include battery, for instance, but I do include the interference with contract and business relations, as well as the basic negligence and strict liability cases -- that isn't our only goal.

Rather, we will sometimes (1) include a topic that is a good vehicle for exposing students to certain concepts or policy arguments, even if it's not that practically important, and (2) not include a topic that is practically important but that uses concepts that we think are covered well elsewhere, and that practicing lawyers can therefore easily pick up on their own. Plus we'll sometimes cover some fields just because we think they're especially likely to excite students and thus produce an interesting class discussion of the broader issues.

That, for instance, is why I haven't included conversion, but included alienation of affections (which in case takes up less than one day). As to libel, my worry is that it would take too long to cover it adequately, plus much of it is covered in most First Amendment law classes. I've therefore decided to cover the communicative torts via the right of publicity and the disclosure of private facts tort, which are more manageable, and which also involve live current policy debates among the courts in a way that libel law doesn't.

A Zogby press release reports 83% support for laws that let pretty much all law-abiding adults, at least ones age 21 and above, get licenses to carry concealed weapons. (These are generally "shall-issue" laws, because they provide that a license "shall issue," rather than just may be issued, if certain largely objective requirements for licensing are met.)

But while I support shall-issue laws, I'm pretty skeptical about the findings, because of the text of the question:

Currently, 39 states have laws that allow residents to carry firearms to protect themselves, only if they pass a background check and pay a fee to cover administrative costs. Most of those states also require applicants to have firearms safety training. Do you support or oppose this law?

The question as read over the phone obviously doesn't include the commas, so it seems to me that some listeners can easily interpret it as describing laws that limit who may carry guns — laws that "allow residents to carry firearms to protect themselves only if they pass a background check and pay a fee to cover administrative costs." The listener may well assume that these laws are enacted against a backdrop of discretionary licensing, where the police may deny licenses at will (more or less the case in California, for instance), and that the laws simply provide that such discretionary licenses may not be issued unless a background check is passed and a fee is paid.

And this is unfortunately consistent with other surveys I've seen, such as a CNN 6/4-5/08 survey that reports 48% of respondents favoring "preventing gun owners from carrying a concealed gun in public," and 52% opposing, and an ABC 4/22/07 survey that reports 42% of respondents favoring "a law requiring a nationwide ban on ... people carrying a concealed weapon (with 55% opposition). These surveys reveal at most 52%-55% support for shall-issue laws (I say at most since one can oppose a nationwide ban on concealed weapons, or even a local ban on concealed weapons, but still not support a shall-issue regime). I can't see why that would increase to 83% in the last two years; and while it's possible that highlighting the requirements of background checks, fees, and training might increase the support in some measure, I'm skeptical that the increase would be so great.

Thanks to InstaPundit for the pointer.

A reader passed along the "all your computer are belong to us" story that first broke on the Glenn Beck show; here's PolitiFact's summary, with the government response:

[On his show, Beck quoted the following statement from cars.gov]: "This application provides access to the DOT CARS system. When logged on to the CARS system, your computer is considered a federal computer system and it is property of the United States Government. Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to authorized CARS, DOT, and law enforcement personnel, as well as authorized officials of other agencies, both domestic and foreign." ...

The Department of Transportation confirmed the language was on the cars.gov Web site, but on Aug. 3 it was removed. The DOT released this statement to PolitiFact: "A security warning on the CARS.gov dealer support page that stated computers logged into the system were considered property of the Federal Government has been removed. We are working to revise the language. The language was posted on the portion of the website accessible by car dealers and not the general public."

"It would be factually inaccurate to say that any computer that went to cars.gov would become the property of the U.S. government," said Sasha Johnson, a DOT spokeswoman said....

What a screw-up. I have no reason at this point to think that this was part of some malevolent government conspiracy, or even of a well-intentioned but ill-thought-through design. It might well have been an error by one low-level Web designer, which wasn't reviewed by any higher-up. Still, what a mistake to make, especially when people are understandably concerned that the federal government in general likes to poke around on your computer systems. (I approve of some degree of such poking around, in some cases, but the existence of federal computer surveillance and the growth of such surveillance makes erroneous claims of such surveillance especially plausible and frightening to people.)

PolitiFact goes on to point out that the Glenn Beck item was mistaken in suggesting that the warning purported to apply to consumers — it only applies to dealers that access that part of the site. I think in the course of this, PolitiFact underestimates the propriety of the criticism (referring to "the small amount of truth in their comments [on the Beck program]") and exaggerates the error. But that's tangential to the point I'm making here, which is about the Department of Transportation error and not about the Beck program's errors.

Thanks to Angela Thornton Canny for e-mailing me to alert me to the controversy.

UPDATE: Someone whom I know and trust on such matters e-mails me the following speculation:

Most U.S. government computers have a "banner" that greets a government user that says the computer belongs to the U.S. government and that any and all communications can be logged. The purpose of the banner is to give notice of monitoring that generates consent to monitoring under the Wiretap Act.

I would guess that someone who didn't understand the law thought that they needed to have a similar banner for the use of cars.gov, so they just took the standard banner and replaced the phrase "this computer is the property of the U.S." with the phrase, "When logged on to the CARS system, your computer is considered the property of the U.S. government."

The trick is that who owns the computer is actually irrelevant to the monitoring, and no such notice of the monitoring is required when the government's computer is the recipient of the communication and not the originator. So it was probably just a screwup thanks to someone who didn't understand the legal purpose of the "banner" notice widely used on government machines.

(Just to make clear, the monitoring that my correspondent says would be generally authorized would be the monitoring of material from the government computer side — not the reading of material on any private computer that's communicating with the government computer.) Sure enough, my search revealed similar language on a Los Alamos National Laboratory site, as well as several other sites:

This is a Federal computer system and is the property of the United States Government. It is for authorized use only. Users (authorized or unauthorized) have no explicit or implicit expectation of privacy.

Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to authorized site, Department of Energy, and law enforcement personnel, as well as authorized officials of other agencies, both domestic and foreign. By using this system, the user consents to such interception, monitoring, recording, copying, auditing, inspection, and disclosure at the discretion of authorized site or Department of Energy personnel.

Is there really something wrong with that? JammieWaringFool (thanks to InstaPundit for the pointer), thinks there is:

White House Blog Seeking Snitches

The Obama administration is starting to look more like Castro's Cuba by the day. Here they claim they're not concerned about protests against ObamaCare, but still, just in case, feel free to snitch on your neighbors.

There is a lot of disinformation about health insurance reform out there, spanning from control of personal finances to end of life care. These rumors often travel just below the surface via chain emails or through casual conversation. Since we can’t keep track of all of them here at the White House, we’re asking for your help. If you get an email or see something on the web about health insurance reform that seems fishy, send it to [email protected].

So if you find someone who disagrees with Dear Leader, rat them out.

Now I've long been bothered by the excessive use of the terms "snitch," "rat," and so on (see, for instance, here and here). Some reporting of bad conduct to the government is bad. Some may be socially good, but might still reflect badly on the person doing it (for instance, someone who turns state's evidence simply to get a lower sentence may be doing a public service, but shouldn't get much praise for it). Much may be socially good and not reflect at all badly on the reporter -- consider people's reporting serious criminal conduct (especially conduct that we agree should probably be considered criminal). Likewise, while some government attempts to gather information about bad conduct are bad, others are perfectly proper.

In this instance, it strikes me that the terms "snitch" and "rat" are entirely misplaced (even allowing for some facetiousness on the poster's part), as is the criticism of the government. The Administration is trying to promote a particular political agenda. They are naturally and reasonably interested in hearing what the arguments against it are, and doubtless sincerely believe that many of the arguments may be unsound or even factually false. They want to rebut such arguments, but they can't do so promptly unless they hear about it promptly.

There's nothing totalitarian about asking supporters to gather this information. And there's nothing morally contemptible (as the terms "snitch" and "rat" suggest) in passing along this information, if you genuinely think that the information is misleading.

Now of course if you think that the Administration would prosecute your friend for e-mailing you supposed "disinformation about health insurance reform," then indeed you shouldn't help the Administration do it. But, seriously, is that really likely? JammieWearingFool and the Administration's other critics seem not to worry that their criticisms of the Administration will get them thrown in prison, or even will lead to any harassment from the FBI or the like. (To be sure, some criticisms, for instance ones that contain threats against the President, might yield that, but I assume that this isn't what the information reported to [email protected] is likely to contain.) I take it that they think, as do I, that blog posts or e-mails to friends about health insurance reform are pretty safe from legal punishment and governmental harassment. And that makes it pretty likely that alerting people on your political side of the aisle in the Administration will simply lead to public rebuttal. It's hardly "look[ing] more like Castro's Cuba" for that to happen, nor is it "snitch[ing]" or "rat[ing people] out" when someone facilitates it.

Finally, I recognize that it's possible that some "disinformation about health insurance reform" might indeed lead to prosecution or administrative action. For instance if the information appears in messages that urge the support or defeat of a candidate, and those messages are put out by 501(c)(3) tax-exempt organizations, the organization could potentially lose its tax exemption for the electioneering communication. Likewise, there are restrictions (which I agree are quite substantively troubling) on corporations' conveying similar messages related to candidates near election time; violation of those restrictions could lead to legal punishment. But such organizational communications seem already likely to be pretty high-profile, and likely to come to the government's attention in any event. I don't think that someone who gets a possibly tax-law-violating or election-law-violating mass mailing from (say) the Sierra Club and alerts the government to the possible violation can be reasonably said to be "snitch[ing]" on the Sierra Club. The force of the "snitch" / "rat ... out" / "Castro's Cuba" argument, I take it, comes from the suggestion that there's something improper in passing along communications from friends or neighbors -- rather than public press release or fundraising letters from organizations -- to the Administration, which is trying to rebut such communications. And that strikes me as quite mistaken, for the reasons I gave above.

My friend Haym Hirsh, a computer science professor at Rutgers, e-mails:

It turns out that you can reverse engineer a pacemaker with sufficient accuracy that you can broadcast radio signals to it to induce various undesirable actions, such as broadcasting the pacemakers existence (including model and serial number), broadcasting personal information such as the patient’s name, disclosing cardiac data recorded by the device, changing the patients name, changing therapies, and inducing fibrillation (!). You can also perform a “denial of service” attack on it. All were done via radio. See http://blogs.zdnet.com/BTL/?p=8218 for a high-level description, http://www.secure-medicine.org/icd-study/icd-study.pdf for technical details. Not a new story -- it was out last year -- but new to me.

So reports Ars Technica, and points to the complaint.

The complaint is based on breach of contract, a violation of the Computer Fraud and Abuse Act, trespass to chattels, conversion, and a violation of the Washington Consumer Protection Act. As I noted earlier, Amazon's actions were indeed not authorized under the terms of use, which say that "Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times." This makes for a strong breach of contract claim (though the damages might well be modest), and makes the other claims at least plausible, though I don't know enough to speak in detail about them. I also can't speak to whether class certification would indeed be sound here.

Special note: Two of the proposed classes for class certification purposes are labeled "The Big Brother Class" and "The Big Brother Work-Product Subclass." Shades of the anonymous plaintiff Guy Montag Doe?

By the way, according to the Complaint, "Earlier in 2009, Amazon reportedly remotely deleted certain copies of “Harry Potter” books by J.K. Rowling and certain copies of books by Ayn Rand." Assignment: Discuss, in light of Howard Roark blowing up the housing project.

The Lakeland (Florida) Ledger reports:

[Antavio Johnson, 20, was charged with two counts of corruption by threat of a public servant after a Polk County gang detective found the song on a MySpace page belonging to Hood Certified Entertainment in February.

In his song, "Kill Me a Cop," Johnson mentions two Lakeland police officers by name, according to the Sheriff's Office....

Johnson pleaded no contest to the charges July 24 and was sentenced to two years in state prison....

In the song, the lyrics "Im'ma kill me a cop one day" and "Call me crazy but I think I fell in love with the sound of hearing the dispatcher saying, 'Officer Down,'" are repeated....

Johnson also refers to being on probation, Sheriff Grady Judd and the 2006 killing of deputy Matt Williams and his K-9 DioGi....

A friend of Johnson's said he posted the song without paying close attention to the lyrics, and the song was never meant to be released, but it's not clear to me whether the prosecutors believed that.

It's hard to tell whether the song is constitutionally protected without seeing the full lyrics, which I couldn't find. (Please let me know if you have an authoritative copy.) My tentative sense, though, is this:

(1) If Johnson distributed the song (or authorized such distribution) with the purpose of threatening the two particular police officers, then it would probably fit within the "true threats" exception to the First Amendment protection.

(2) If the song had simply generically said that the singer would kill cops one day, it would probably be constitutionally protected.

(3) If Johnson expressly mentioned the two police officers, but did not have the purpose of threatening those officers — but was just saying it as fiction, much as a writer might have a character say things that the writer doesn't intend to have taken seriously — then the speech is probably protected (see Virginia v. Black, Part III.A), though some post-Virginia-v.-Black circuit court decisions say that such a purpose to threaten is not required.

UPDATE: Thanks to Victor Steinbok and commenter Chris Hundt, I got a link to the lyrics, which are here. My sense is that the specific reference to the two police officers would indeed make this into a potentially punishable threat, at least if it could be shown (had the case gone to trial) that the defendant had the purpose of threatening the police officers. It's true that in some contexts speech can be pretty clearly fictional or hyperbolic, so a reasonable person wouldn't perceive it as a serious threat, and a reasonable jury would conclude that the speaker didn't have the purpose of threatening the target. But this is not clearly so in this context (though the defendant would be free to make the fiction argument to the judge and then to the jury, if the case had gone to trial).

Here's a case I ran across in preparing for my Torts class this Fall; I hadn't heard about it before, so I thought I'd note it here. The case is Touchette v. Ganal, 922 P.2d 347 (Haw. 1996), and it stems from horrific multiple murders perpetrated by Orlando Ganal. Orlando's wife had an affair with David Touchette, and after Mabel eventually left Orlando, Orlando killed his and Mabel's son, Mabel's parents, and several family members of Touchette's. (Touchette wasn't injured, and Mabel was injured but not killed.)

Touchette's remaining family members proceed to sue ... Mabel. One of their theories was that Mabel was responsible for not adequately controlling Orlando, or at least for not adequately warning people about his dangerousness. But the Hawaii Supreme Court rejected that, adhering to the general rule that people have no legal duty to try to prevent crimes by their spouses.

Yet then the Hawaii Supreme Court held that Mabel could be liable, not on the theory that she didn't do enough to control her husband, but on the theory that what she did was negligent. And what was that?

[The] complaint against Mabel in the present case alleges affirmative conduct, or alleged “misfeasance” on the part of Mabel, in that “defendant Mabel Ganal initiated and maintained a course of conduct which involved taunting and humiliating defendant Orlando T. Ganal, Sr. by flaunting her extra marital love affair with David Touchette,” and that “defendant Mabel Ganal’s extra marital love affair with David Touchette, and her conduct of taunting and humiliating defendant Orlando T. Ganal, Sr. with respect to that affair, caused defendant Orlando T. Ganal, Sr. to suffer severe and extreme emotional and mental distress and depression,” thereby implicating the duty described by sections 302, 302A and 302B....

[T]he allegations state a claim that potentially could warrant relief under a theory based on the duty stated in sections 302, 302A and/or 302B.... [W]e vacate the circuit court’s order granting Mabel’s motion to dismiss and remand for further proceedings consistent with this opinion.

Section 302B (of the Second Restatement of Torts) provides, "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal." After plaintiffs won at the Hawaii Supreme Court, and had their claim reinstated, the case settled, for an amount that is not a matter of public record.

Now I certainly don't endorse cheating on one's spouse, or "taunting and humiliating [one's spouse] ... with respect to that affair." But it seems to me that people should not have a legal obligation to organize their love lives in order to avoid "unreasonabl[y]" provoking mentally unstable spouses or lovers.

What's more, the court's rationale is hardly limited to cheating spouses, since the court expressly rejected the theory that the spousal relationship itself created liability. Rather, it's based on a broad theory that certain kinds of behavior towards people may be negligent if they "involve[] an unreasonable risk" of provoking a criminal attack. An ex-girlfriend who breaks up with an ex-boyfriend in a supposedly unreasonably "humiliating" way might well be equally liable.

After all, the risk of violent reaction by the ex-boyfriend might be as great, and as foreseeable, as the risk of violent reaction by the husband. Perhaps as a class husbands would be more upset than ex-boyfriends, because they might have built up greater expectations of lifelong commitment. But certainly some jealous ex-boyfriends might well pose a high risk of violent retaliation against their ex-girlfriends' new boyfriends' families. And certainly the ex-girlfriend might well know that the ex-boyfriend has such a tendency.

This is an example of something I've remarked on before: how tort law sometimes unduly interferes with people's liberties. People should be free to leave their lovers, and even "flaunt[]" their new relationships, without a government agency deciding whether such behavior was "unreasonabl[e]" and imposing legal liability based on such a decision. Even if this is not so as to cheating during a marriage, it should certainly be so as to leaving a spouse or a lover, and as I said the court's rationale would equally apply in such a situation — this wasn't a divorce claim or an alienation of affections (or criminal conversation) lawsuit premised specifically on a spouse's adultery, but a claim that could equally well apply with no adulterous conduct at all.

Nor is it sufficient that a jury might reject the plaintiff's claim. If the claim can go to the jury, and can't be quickly and comparatively inexpensively disposed of on a motion to dismiss, then the expense and risk of litigation pressures defendants to settle, even if a jury might eventually do the right thing after hundreds of thousands of dollars in fees are spent. The government is thus still interfering with people's liberty to deal with their love lives as they see fit, without fear of government-imposed liability for supposedly unreasonable "flaunt[ing]" of one's new relationships.

Naturally, people who are involved with people who seem likely to become murderers already feel plenty of constraint on their liberty. They may well be too scared to leave a lover or spouse, may feel the need to hide any new relationships, and may feel the need to soft-pedal matters around the lover or spouse, rather than telling the truth about how they really feel. I just think that the law shouldn't add to that constraint on liberty, even in the service of trying to prevent future murders.