So holds a 2-1 panel decision of the Texas Court of Appeals in Freedom Communications, Inc. v. Coronado.

The case involved a political ad attacking an incumbent D.A. for "st[anding] against children who have been sexually abused, sexually assaulted, or physically injured, and st[anding] with those who would commit such heinous crimes." The ad included the names of plaintiffs as people accused of "sexual abuse of child" or "physical abuse of child," and noted that the disposition in the cases was "declined at intake."

The plaintiffs then sued both for defamation and for invasion of privacy (on a "public disclosure of private facts" theory). The court held that the defamation claim could go to trial, because in context, the ad suggested that defendants were indeed guilty, and not just that they had been accused. That might be sound (though the dissent disagreed), but in any case isn't my concern here.

But the trouble is that the court also held that the invasion of privacy claim could also go forward. This claim does not require proof of falsehood (this is a disclosure of private facts claim, not a false light invasion of privacy claim); and the court's rationale would apply equally to an accurate report:

In order to recover damages for this tort, the appellees must prove that: (1) publicity was given to matters concerning the appellees' private life [14]; (2) the matter publicized is not of legitimate public concern; and (3) the publication of those matters would be highly offensive to a reasonable person of ordinary sensibilities.

[Footnote 14:] The disclosure of facts that are a matter of public record will not give rise to a public disclosure invasion of privacy claim.

[Footnote 10 (moved):] [T]he appellees also note that the Case Disposition Report contained "strictly confidential, non-public information, which ... remains confidential when it is transmitted to the CCCAC" and are "not public records at all." However, the fair report privilege statute does not require that a government report be "public" in order for the privilege to apply. We need not determine whether the Case Disposition Report was in fact "strictly confidential" because it has no bearing on the issue of whether the fair report privilege applies.

Freedom argues that it conclusively negated all three of the essential elements of the appellees' invasion of privacy claim. First, it contends that it conclusively established that the information included in the advertisements was of "legitimate public concern" because it discussed "alleged criminal activity" in Cameron County. "The determination whether a given matter is one of legitimate public concern must be made in the factual context of each particular case, considering the nature of the information and the public's legitimate interest in its disclosure." Freedom notes that the Fifth Circuit has held that "there is a legitimate public interest in facts tending to support an allegation of criminal activity, even if the prosecutor does not intend to pursue a conviction." However, the advertisements at issue here did not disclose any underlying facts that would support an allegation of criminal activity against the appellees.

Rather, the advertisements stated only that such allegations were in fact made against the appellees and were subsequently reported to the District Attorney's office. While underlying facts reflecting criminal activity can certainly be of legitimate public interest, Freedom points to no authority, and we find none, holding that the public has a legitimate interest in the mere fact that an individual has been accused of a crime. [15] Absent such authority, we cannot say that the information contained in the advertisement was of "legitimate public concern" as a matter of law.

[Footnote 15:] In arguing that the subject matter of the advertisements was "of legitimate public concern," the dissent notes that "[p]rotection of children from abuse is of the utmost importance in Texas" (citations omitted). By suggesting that the Court's decision today is somehow at odds with the goal of "[p]rotect[ing] children from abuse," the dissent has ironically -- but unsurprisingly -- employed the same type of moralistic intimidation that Zavaletta used to tar his opponent as complicit in child abuse. Of course, this Court agrees with the general proposition that the protection of children from abuse is a supreme public policy objective of this state. However, the dissent does not explain how the publication of mere accusations of child abuse without any supporting evidence, as is the case here, serves to advance this cause. The dissent also fails to recognize that by classifying a mere accusation of child abuse as an item "of legitimate public concern," it is adopting the same misguided view that the dissent derisively attributes to "many individuals ... in our society" -- that is, it ignores "the ideal that an accused is innocent until proven guilty."

This strikes me as a very dangerous result, because it undermines the ability to report, even accurately, about accusations of crime. I've generally criticized the disclosure tort even as to other matters, but it strikes me as especially unsound here: One can't decide whether the prosecutor is operating properly in declining to prosecute cases if one must face ruinous liability for even mentioning the name of a person who is accused.

What's more, this result seems to me hard to reconcile with Florida Star v. B.J.F., which set aside a verdict for publishing the name of a sex crime victim. There, as here, a newspaper was sued for publishing names drawn from a government report. Even if the information in the Case Disposition Report was supposed to be kept confidential, in Florida Star the victim's name was also supposed to be kept confidential (a police officer released the name in violation of government policy).

But the Court correctly concluded, I think, that "[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." And no such need can be sufficiently shown when the "sensitive information is in the government's custody," where the government has considerable "power to forestall or mitigate the injury caused by [the] release [of the information]" by "classify[ing] certain information, establish[ing] and enforc[ing] procedures ensuring its redacted release, and extend[ing] a damages remedy against the government or its officials where the government's mishandling of sensitive information leads to its dissemination. Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts."

Such a less drastic means may be imperfect (mistakes do happen), but the Court concluded that the government must use that means, rather than punishment of disclosure. And if, as the Florida Star court held, the name of a crime victim may be published because it is sufficiently relevant to a matter of "public significance" -- even before a trial in which the fact of the crime has been officially proved -- then the same should be true as to the name of the alleged criminal.

As you can tell from some of my recent posts (e.g., this one and this one), I think that some courts have broadened tort liability far beyond where it should be. But remember that one reason why people comment about such cases is that they strike them as wrong. Generally speaking, I don't say as much about cases that strike me as right (setting aside current cases that are already in the news). "Here's a case from some years ago that reached entirely the right result" isn't as fun for me to write, or as fun for people to read.

So please be careful about generalizing from some cases -- even quite a few cases -- that are in the news to the legal system as a whole; in particular, avoid generalizations such as this one, from a comment in this thread:

Tort law is no longer about duty, breach, causation, and damages. Rather, it is a mechanism for wealth transfer to an injured party.

Idiotic court decisions such as this one can be explained by the fact that there is a plaintiff with serious injuries (or as here, a death), and somebody nearby with a big pot of insurance money. Courts basically have gotten out of the gate-keeping business -- as long as some jury feels like redistributing a little wealth, the courts will not stand in the way.

Read tort cases, and you'll find lots of serious discussion of duty, breach, causation, and damages, and lots of cases thrown out of court before they go to trial on various grounds. There's plenty of gate-keeping still going on in various areas.

Perhaps there's less than there should be. Perhaps even a few bad apple tort decisions cause a lot of problems. But it's best to avoid, I think, generalizations about all courts or even most courts based simply on some of the high-profile cases, which are often selected for publicizing precisely because they seem wrong or at least controversial.

From the Associated Press:

An African-American man from Mississippi ... pleaded guilty Wednesday in federal court to making a threat [against a black college student] in November 2008.

[Dyron] Hart admitted creating a name and using a white supremacists' photo to pose as a white man who planned to kill blacks because Barack Obama had been elected president.

There are all kinds of people in this great nation of ours. Thanks to InstaPundit for the pointer.

Yesterday, I blogged about the silent alarm case: A store was being robbed. The safe was set up to trigger a silent alarm to the police station when it was opened (supposedly contrary to company policy). The police came. There was a shootout with the criminals, in which a patron died. The patron's family sued the store for negligence, on the theory that the store shouldn't have risked patrons' lives by triggering the silent alarm. The trial court granted the store summary judgment. The appellate court reversed the grant of summary judgment, holding that it was for the jury to decide whether silently calling the police was negligent.

Some readers agreed with the appellate decision, and thus presumably thought that a reasonable jury might find such conduct negligent, even if other reasonable juries might reach the opposite conclusion. (If no reasonable jury could find such conduct negligent, or if the store lacked any duty to try to prevent injury caused by a police reaction, then the trial court was right to deny summary judgment.) I thought I'd test this broad view of negligence law with the following questions:

(1) Let's say that a store owner is being shaken down by the mafia. Instead of giving in, he calls the FBI. Foreseeably, the mafia learns of this, and, equally foreseeably, decides to retaliate by shooting the store owner. They miss, but hit a patron. The patron's family sues, claiming that the store owner took "action which served to increase the hazard" of mafia attack "and which in fact caused the injury."

(2) Let's say that a store owner sees a gang crime taking place outside the store. Instead of ignoring it, he calls 911. The same chain of events happens.

Would you also conclude that a reasonable jury could hold the store owner liable in such cases as well?

Or would you think that, as a matter of law, there should be no liability for calling the police to alert them to the crime (especially if one calls them without at the same time broadcasting the fact to the criminals, though realizing that the criminals might learn of the call, or might get into a gunfight with the police)?

Or do you think that there's a legally significant differences between my two hypotheticals and the silent alarm case? (I agree that there are factual differences, for instance related to whether the call happens while the criminals are there or after they leave but when it's foreseeable that they'll return with violence; but I don't see why those differences should be relevant to the legal analysis.)

UPDATE: I notice that some commenters are trying to distinguish the cases on foreseeability grounds, but I don't think that works. Just as it's foreseeable — though far from certain — that silently calling the police when a robbery is in progress will lead to a shootout in which a patron can get killed, it's foreseeable that calling the police about mafia or gang activity will lead to retaliation in which a patron can get killed. (Sure, it could lead to retaliation when the store is closed, or against the store owner when he's not at the store; but so a silent alarm could lead to no shootout, or a shootout when the robbers have gotten a few blocks away from the store.) And if you're not persuaded that this is usually so, just assume the quite plausible scenario in which this is indeed foreseeable, because similar criminals have made a habit of retaliating that way in the recent past.

Nor do I think that there's a legally significant distinction — of the sort that would make a difference between granting summary judgment and denying summary judgment — between the risk of a shootout right away and a risk of a shooting some time later, assuming that the later shooting is indeed foreseeable. Why would it be potentially negligent to risk today's batch of customers but not to risk next week's batch of customers? If anything, the silent alarm scenario at least involved some possibility that calling the police would diminish the risk to today's customers, perhaps more than it would increase the risk (though I doubt there's any reliable way of estimating and comparing these two effects). My hypotheticals, at least as I have cast them, only increase the risk to customers.

A comment on the census / illegal aliens thread asked whether any states allow noncitizens to vote. I don't think they generally do that now, though some municipalities might. But apparently they used to do it in the past. Here's what I blogged on the subject seven years ago:

1. I generally oppose noncitizens' voting at the state and federal level, and where taxes or criminal laws are concerned, but in some contexts -- for instance, the internal governance of a government body, such as a law school -- belonging to the specific community (e.g., being a law professor) might be more important than belonging to the national community. More broadly, the idea of noncitizens voting wasn't as outrageous as some suggested. (Some have even argued that noncitizen voting is actually prohibited by the constitution; I think that's not so.)

2. A friend of mine -- a leading election law expert, who I'd say is considerably more on the Right than on the Left -- wrote something on an academic discussion list about the history of noncitizen voting, and I got his permission to pass it along:

As a historical matter, non-citizens were routinely allowed to vote in state and local elections at the close of the 18th century (provided they met the other significant restrictions of the time, i.e. male, property ownership, etc.). Indeed, states often offered this benefit as a way to help attract immigrants, who were seen as economically beneficial.

In the early 19th century, even as the franchise was rapidly expanded for citizens, there was a trend to limit immigrant voting. However, this trend reversed again after the Civil War, in part due to the service of immigrants in both Northern and Southern armies during the war, and by the 1890s about half the states allowed non-citizens to vote.

The racist and nativist philosophy of the progressive movement fed hostility to non-citizen voting, and was augmented by the assassination of President McKinley by an immigrant, and finally the "Red Scare" of Woodrow Wilson and Mitchell Palmer after WWI. The last state to abolish immigrant voting was Arkansas, in 1926.

As a constitutional matter, in Skafte v. Rorex, 553 P.2d 830 (1976), the Colorado Supreme Court found no constitutional right for permanent resident aliens to vote. The U.S. Supreme Court has not specifically ruled on it, but has suggested that citizenship with respect to voting is not a suspect class subject to strict scrutiny. Hill v. Stone, 421 U.S. 289 (1975); Sugarman v. Dougall, 413 U.S. 634 (1973).

The justification, of course, is that because non-citizens have not chosen to join the body politic (especially given that in the U.S., it is pretty easy to do so), they therefore have not shown an interest in the long term welfare of that polis, and so should not vote. The flip side is that they are subject to the draft, pay taxes, etc., like the rest of us.

How many representatives should each state have? The answer currently turns on total state population. But a Wall Street Journal op-ed by LSU law professor John Baker and pollster Elliot Stonecipher argues that this is unconstitutional: The apportionment should be determined by counting only citizens plus permanent resident noncitizens. I don't think this is right, and I thought I'd blog briefly about that. (I also have a letter to the editor in today's Wall Street Journal that tries to summarize this in 200 words.)

1. To begin with, I should stress that Baker and Stonecipher are indeed arguing that the count should include both citizens plus permanent resident noncitizens. Parts of the op-ed seem to suggest that only citizens should be counted (see here for an example of its being interpreted this way); but I've confirmed that this was not their intention. The piece was originally much longer than the Journal's word limits allow, and much was cut in the process; Prof. Baker was kind enough to allow me to include his original piece, followed by an exchange he and I had, in this post — you can see it by click on "Show the original full Baker / Stonecipher draft" below. (He also asked me to mention, though, that he is out of the country and will not be able to read and respond to any of the comments that this post might produce.)

2. On to the constitutional basis for the census's current practice of counting everyone who lives in the U.S., whether citizen, permanent resident alien, legal temporary resident alien (which could include people who have lived here for years, as students or as temporary workers), or illegal alien. The Fourteenth Amendment says, in relevant part,

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The first sentence strikes me as pretty explicit: Apportionment must be "counting the whole number of persons in each State," with one explicit exception. What's more, the next sentence explicitly mentions "citizens," which further makes clear that "the whole number of persons" doesn't mean citizens or eligible voters. This provision was a revision of article 1, § 2, which said,

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

So there too the focus was on "the whole Number of free Persons" in a State (with two exceptions), and not citizens.

The Journal op-ed doesn't mention these provisions at all, but the original long Baker/Stonecipher draft did speak to this:

At the Founding, slavery largely dictated the Constitution’s language on the Census. Thus, the apportionment of representatives, as well as direct taxes, was constitutionally to be undertaken according to an “Enumeration” of "the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, [and further including] three fifths of all other Persons," i.e., slaves. It was to be a count of “We the People of the United States,” and within the stated categories of slaves, indentured servants and “free Persons,” each State’s representation in the House of Representatives was tied to permanent residence within the country.

The first Congress provided that the 1790 census would count “inhabitants” and “distinguish” key and notable subgroups, directing, “[t]hat the marshals of the several districts of the United States ... cause the number of the inhabitants within their respective districts to be taken; omitting in such enumeration Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colors of free persons from all others; distinguishing also years and upwards from those under that age ...” (italics added) The term “inhabitant” at that time had a well defined meaning including “one who is bona fide a member of a State, subject to all the requisitions of its laws, and entitled to all the privileges which they confer.” See Oxford English Dictionary.

So the logic is that the constitutional text "whole number of persons in each State" means "whole number of inhabitants" (borrowing from the 1790 census authorization act), which in turn means "whole number of bona fide members of a State, subject to all the requisitions of its laws, and entitled to all the privileges which they confer," and which in turn means "whole number of citizens or permanent resident aliens."

Yet I don't think this works. First, the theory that "we the People" applies here and includes slaves (at a 3/5 level) and legal permanent residents (under a theory of "virtual representation," as an e-mail I quote below from Prof. Baker suggests) but not others doesn't strike me as persuasive.

Second, the definition of "inhabitant" they give stems from an 1824 House of Representatives contested election decision that was interpreting the preceding sentence in the constitution, "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." Of course those made eligible by that sentence would undoubtedly be American citizens, the question being simply whether they are citizens who reside in that particular state. But this hardly means that "inhabitant" was any narrower than "one who inhabits."

In fact, if one looks at leading legal dictionaries of the late 1700s, one finds the word defined as "a dweller or hous[e]holder in any place" in both Jacob's Dictionary (10th ed., London 1782) and Cunningham's Dictionary (3d ed., London 1783). Burn's Dictionary (1st ed., London 1792) notes that "with respect to the public assessments, and the like," the term does "not extend to lodgers, servants, or the like; but to householders only," but that clearly can't be the definition contemplated by the first Census Act, which surely did not count only householders.) So the original Census Act, the original constitutional provision, and the currently effective constitutional provision all point in the same direction: Apportionment is to be done based on actual residents.

To be sure, the Framers likely weren't thinking at all about illegal aliens at the time; it's hard to tell for sure what they would have said had they thought about them. But we know what they did say: "the whole number of free Persons" and, several decades later, "the whole number of persons in each State." In the absence of some strong evidence to the contrary, that sounds like it includes illegal aliens as well as legally resident ones. It certainly doesn't seem "outrage[ously]" "unconstitutional" for the Census to take such a view of the provision.

3. Now the op-ed and the original draft do mention one constitutional authority:

In the 1964 case of Wesberry v. Sanders, the Supreme Court said, “The House of Representatives, the [Constitutional] Convention agreed, was to represent the people as individuals and on a basis of complete equality for each voter.” It ruled that Georgia had violated the equal-vote principle because House districts within the state did not contain roughly the same number of voting citizens. Justice Hugo Black wrote in his majority opinion that “one man’s vote in a congressional election is to be worth as much as another’s.” The same principle is being violated now on a national basis because of our faulty census.

But this was an imprecise statement on the Court's part, in a case where the basis for the count wasn't at issue. Even Baker and Stonecipher don't take it seriously, because they think the Census should count not just voters, not just voting age citizens, not just all citizens (note that the percentage of Americans under 18 varies from 22.3% in West Virginia to 32.2% in Utah, so there is a substantial difference between counting voting age citizens and all citizens), but all citizens plus legal permanent residents.

Plus the constitutional text expressly doesn't limit itself to voters, but instead talks about persons generally. In the Framers' time, some states had considerably fewer voters per capita than others, because they had higher property qualifications for voting. (I believe that the percentage of the white male adult citizen population eligible to vote ranged from 60% in some states to 90% in others.) "Equality for each voter" would have meant those states would get fewer representatives. Yet the framers expressly rejected that position by calling for representation by total population (with special provision for slaves), not by voting population.

So it seems to me that it is the op-ed's proposal that would likely be unconstitutional, and the current Census scheme is likely constitutionally permissible. And even if the text is ambiguous enough to leave Congress with the flexibility to choose either approach (and I don't think that's so), the current approach seems to be at least one of the constitutionally permissible options.

a group blog founded by the Progress & Freedom Foundation's Adam Thierer, turns 5 today. Congratulations!

Solers, Inc. v. Doe, decided today by the D.C. Court of Appeals, strikes me as a very important case for litigators. The facts:

Appellant Solers, Inc. “is a for-profit Virginia corporation with its principal place of business in Arlington, Virginia. [Its] work principally consists of developing software and other technology for agencies within the Department of Defense.” Solers is a privately held company, owned by its employees.

Appellee SIIA describes itself as “the principal trade association for the software and digital content industry” and explains that “[o]ne of [its] chief missions is to protect the intellectual property of member companies by fighting the software piracy that threatens to undermine the entire industry.” While Solers’ work is primarily in the same industry that SIIA seeks to protect, Solers is not a member of SIIA.

In order “[t]o fulfill its mission, SIIA [has] established an Anti-Piracy Division and developed anti-piracy programs involving both education and enforcement.” “SIIA’s enforcement program enables sources with knowledge of software piracy to report anonymously to SIIA via telephone or the Internet about companies [committing piracy] ....” To encourage reporting, “SIIA allows individuals to submit information ... on a confidential basis.” Through this program, John Doe, an “individual,” reported that Solers was engaged in illegal activity. Accusations of copyright infringement followed, and Solers sued Doe but has not been able to learn his or her identity....

SIIA acknowledges that, “[i]n March 2005, [it] received a communication via the Internet from [Doe] who alleged that Solers was using unlicensed software.” Soon thereafter, on April 29, 2005, SIIA’s attorney wrote to the President of Solers, accusing Solers of “copyright infringement.” The letter stated that SIIA “has evidence that Solers, Inc. is engaged in the unlawful copying and use of software published by the software publishers listed in [the attached exhibit] in violation of the Copyright Act, Title 17 U.S.C. § 501, et seq.” The letter announced that “[SIIA is] prepared to seek remedies available under the Copyright Act,” but explained that SIIA “prefer[s] to work with companies to reach a resolution that is quick, fair and out of the public spotlight ... [through] a three part process [that leads to] an easy and quick settlement ....”

SIIA’s letter demanded that Solers complete an internal audit of its software programs, instructed Solers on how to complete the audit, and requested that Solers deliver the results to SIIA. According to SIIA’s letter, once the audit was completed, the parties would negotiate a settlement and SIIA would release Solers “from all claims and causes of action for copyright infringement.” The letter warned, however, that “if Solers [] is unwilling to promptly conduct an audit and the other activities mentioned [in the letter], [Solers] should be aware that SIIA will not hesitate to initiate litigation against Solers [] for copyright infringement.” The letter did not provide any information about the alleged “evidence” of Solers’ “copyright infringement,” or any details regarding the source of this “evidence.” ...

Solers ... asserts that “[a]s a result of the communications between Solers and SIIA ..., Solers satisfied SIIA that [Doe’s] allegations were false. On Friday, May 13, 2005, counsel for SIIA confirmed to [Solers’ attorney] that SIIA had ‘closed its file’ on Solers.” (SIIA states that it decided not to pursue a claim against Solers in order to protect the identity of John Doe, not because it concluded that his allegations were false.)

The question is whether Solers could just subpoena SIIA for information that would help Solers learn Doe's identity, so that Solers can sue Doe. Under standard discovery rules, subpoenaing third parties for information that helps uncover a potential defendant's identity is generally just fine, so long as the information is likely to lead to the discovery of relevant evidence (surely so as to the identity of a defendant).

But in recent cases involving online libel, courts (in cases such as Doe v. Cahill and Krinsky v. Doe 6) have developed doctrines that help protect anonymous speakers against revelation of their identity. Most court decisions in this field conclude that while in principle the speakers could be unmasked, the plaintiffs must generally show that there's some potential merit to their case.

That way, a company that doesn't like some criticisms, and suspects that the criticisms were posted by an employee, can't just sue on some trumped-up legal theory, discover who posted the criticisms, and then drop the lawsuit and fire the employee. On the other hand, if a company does have a credible case (e.g., for disclosure of trade secrets, libel, and so on), it would be able to use subpoenas to try to discover the identity of the speaker, once it shows a court that there is indeed a credible case. (All this is limited to subpoenas as other coercive discovery techniques: If the third party, such as the SIIA in this instance, is willing to turn over the information voluntarily, this test doesn't apply, and the turnover is just fine, in the absence of some promise by the third party to keep matters confidential, or some other confidentiality obligation such as a statutory prohibition on disclosure absent a subpoena.)

Solers applies this principle beyond anonymous postings aimed at the whole world, and to anonymous tips given to a private organization. Even in such cases, the D.C. Court of Appeals holds, the subpoena can't be enforced unless certain showings are made (whether they can be made in this case was left for the trial court to decide on remand):

When presented with a motion to quash (or to enforce) a subpoena which seeks the identity of an anonymous defendant, the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

It seems likely that the same would apply not just to defamation claims but also to other claims in other fact patterns, such as claims that a confidential source has breached a confidentiality agreement, revealed a trade secret, or infringed copyright. It might even apply (though the matter is less clear) when the plaintiff simply claims that the source has some information that's relevant to a lawsuit against someone else altogether, and that the plaintiff wants to identify the source to then subpoena him for that information.

The court says that it's not deciding anything outside the context of defamation cases, and other "alleged injur[ies]" that are "a consequence of the defamation" (such as the alleged interference with business relations involved here). But the logic of the court's opinion would apply to many situations involving anonymous speakers, and not just those who are accused of libel.

And this is especially so because whatever the plaintiff's current claim, an anonymous source might worry that the plaintiff might sue the source for defamation if the source's identity is revealed. Limiting the protection against subpoenas to cases where there's already a defamation lawsuit would thus undermine whatever benefit such protection is supposed to provide.

This may all be quite sensible, or it might not be. My point is that this is a very important step that should be of interest to litigators in a wide range of cases, even ones far afield from the public speech context in which the anonymous speaker protection doctrine arose.

The case -- Kelly v. Kroger Co., 484 F.2d 1362 (10th Cir. 1973) -- is from the 1970s, but it continues to be cited, and its logic is consistent with the logic of other recent negligent provocation arguments, so I thought I'd pass it along:

[D]ecedent was a customer in defendant’s store in Kansas City, Kansas, when a holdup took place. The robbers entered the front of the store with guns, took money from the checkout stands, and then ordered the store manager to open the safe in his office. The opening of the safe caused an alarm to sound at the Kansas City police department, but not at the store.

Several police officers responded immediately to their alarm, and when they entered the front door, the robber ran to the rear part of the store. The police fired a shot at one of the robbers at this time in the store. The decedent was in the rear of the store, and a robber seized her as a hostage or a shield. As the robber left the store at the front, he forced her with him up the street a block or so as he attempted to escape. The police followed and the robber then shot and killed the decedent. The police then shot at the robber as he ran some distance, and captured him.

The attempted robbery took place about 1:30 in the afternoon. During the course of the robbery, the store employees did not sound any other alarm nor attempt to direct or assist the police. This store had been robbed about a month before. Some fourteen robberies of grocery stores in the northeastern part of the city, where the store here concerned is located, had taken place in the prior eighteen-month period. An armed guard had been stationed in this store from time to time.

The complaint is based on the theory that the defendant was negligent in store procedure it had adopted to be followed during the course of such a robbery. The negligence alleged is thus the action taken once the holdup was in progress. The allegations are directed particularly to the silent alarm attached to the store safe....

The trial court, in granting summary judgment for the defendant, held in effect that no negligence was stated in the allegations, and even had there been it could not have been the proximate cause of the injury because the consequences could not reasonably have been foreseen....

The standard of care owed to business invitees [under Kansas law] is ... one of “due care to keep the premises reasonably safe” for their use, but the proprietor is not an insurer of their safety.... The defendant had issued a pamphlet to its employees telling them what to do in the event of a holdup. The particular emphasis in the pamphlet was to do nothing to excite or startle the robbers. It stated in part that many robberies are by young persons who might start shooting if something unexpected should happen. The employees were warned particularly not to give any verbal alarm in the street because this would greatly increase the probability of injury. Thus the plaintiff asserts that the triggering of the silent alarm was not in accordance with the instructions given employees, was not a prudent act, and did not show an exercise of due care for the safety of the customers....

[Under Kansas law, it] is perhaps an aspect of “foreseeability,” not so much that a particular incident may occur, but once one is in progress, when the danger to the customer is evident. Thus under this standard if there is an opportunity to comprehend the danger, negligence can then become a jury question.... The same theory is advanced by the plaintiff in his complaint, that is, that the danger to customers and employees of the store during the course of the robbery was apparent, and that the wrong action was taken — action which served to increase the hazard and which in fact caused the injury. Under this theory of the case, the granting of summary judgment was error.

Note that this is not a case claiming that it was negligent not to hire a security guard, or that the security guard was negligent in reacting too aggressively to the robbers, or even that a store employee was negligent in refusing to hand over the money to the robbers (a highly problematic theory, in my view, but I set it aside here). The theory of liability is simply that it was negligent to trigger a silent alarm that called the police.

is probably best avoided. From Newman v. Commowealth, 2009 WL 2431289 (Va. Ct. App. Aug. 11):

[One of appellant's "questions presented" was:]

4. Is it a violation of the Establishment Clause of the First Amendment to the Constitution of the United States when the manufacturer of the equipment used to test breath in driving under the influence cases refuses to divulge to any state or Federal agency, to any court, to any defendant, to any prosecutor or to any trier of fact the information programmed into the equipment and which controls the operation of and the results obtained from the equipment[?] Is it a further violation of law that the Commonwealth requires the courts, the prosecution, the defense and the triers of fact to take on faith alone that the information programmed into these machines is correct?

[Footnote:] At oral argument, appellant's counsel informed the Court that appellant's "question presented" concerning the Establishment Clause of the First Amendment to the United States Constitution was "satirical" in nature. Rule 3.1 of the Rules of Professional Conduct states, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

My guess is that the "satirical" question did not improve the appellant's chances.

Yum. It has nothing to do, though, with Why We Need a Good, Violent Movie About Salamis.

Readers who have read this post chain can probably guess what this term means. Or maybe it's just this person. (Should I feel bad if this post knocks her off the top of the Google results list?) Or see this.

See yesterday's Minnesota v. Stockwell (Minn. Ct. App.):

MH is a Muslim woman who immigrated to the United States from Somalia in 1994, and wears a headscarf. On September 12, 2006, MH was driving on a four-lane road in Rochester to her place of employment when she noticed a blue van following extremely close. According to MH, the van was virtually on her bumper and continued to follow her just as closely after two turns and numerous opportunities to pass.

MH testified that when she made a left turn into her workplace parking lot, the van had to wait for oncoming traffic before turning to follow her. Then the van continued to follow MH into the parking lot. MH quickly parked and rushed toward the building. The driver of the van, later identified as appellant, pulled up to the entrance of the building and rolled down her window. MH further testified that the driver assumed that she was Muslim, confronted her about Islamic terrorism and her Islamic religious beliefs, and told MH that she felt like killing her.

Appellant [Patricia Josephine Stockwell']s testimony provided a different version of events. Appellant acknowledged that she was driving a van on September 12, 2006, to pick up her son from driving school, which was located across the street from MH's workplace. Appellant testified that she was parked at the driving school when she observed MH walking from her car to her workplace door. Appellant testified that she noticed MH because of her headscarf. According to appellant, she drove across the street and into the parking lot to speak with MH. Appellant testified that she did not intend to cause appellant any fear, but stated that she had strong feelings about radical Islam and wished to share a message with other people about radical Islam. Appellant denied following MH or being angry.

At trial, appellant admitted that she was not truthful when she initially told the police that she had never confronted a Muslim woman and had never been in the parking lot of the building where MH worked.

A jury found appellant guilty of one count of felony stalking under Minn. Stat. § 609.749, subds. 2(a)(2), 3(a)(1) (2006), and acquitted her of harassment and disorderly conduct. The district court granted appellant‟s request for a downward durational departure and imposed a 365-day sentence, stayed for two years. ....

[The] conviction for stalking was based on appellant's driving conduct and not her words in the parking lot. What was said to appellant in the parking lot was not relevant to the conviction other than to enhance the conviction [to a felony] on the grounds that appellant followed and pursued MH because of MH's religion....

While a person can be convicted for a single act of stalking under the stalking-harassment provision of the Minnesota statute, [the statute] requires an element of intent because the statute requires that a person be harassing someone by following them.... [T]o harass “means to engage in intentional conduct which: (1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim.” Minn. Stat. § 609.749, subd. 1 (emphasis added)....

Here, appellant's conduct of aggressively pursuing MH in a vehicle for several blocks clearly falls within the statute's prohibitions....

I should note that the case struck me as noteworthy because the "conviction for stalking was based on appellant's driving conduct and not her words in the parking lot" (presumably since the words were the subject of the harassment and disorderly charges on which Stockwell was acquitted). Had the jury convicted her of making a death threat (based on the allegation that Stockwell "told MH that she felt like killing her"), treating the crime as a felony would have seemed to me much more sensible.

Yesterday, I ran across this bit of legalese for the first time, so I thought I'd note it -- it's Law French for "next friend," which is to say (to quote Black's), someone "who appears in a lawsuit to act for the benefit of an incompetent or minor plaintiff ...." The phrase, I'm pleased to say, is used only about 0.5% times as often as "next friend," but that still includes 20 cases (found via a Westlaw ALLCASES search) since 2005. So don't use it, but know it.

By the way, the phrase isn't French-by-way-of-Louisiana, but rather apparently French-by-way-of-1066 (or in any event by way of French influence on early English law). Of the 20 recent references, 3 were from Maryland, 6 from Connecticut, and 7 from Hawaii. It's also occasionally spelled "Prochein Amy" or "Prochain Amy."

Special bonus opaque legalism, which is noted in the question posed below: Some courts in New England states use the phrase "ppa" in case captions; this means "per prochein ami," or "by next friend." It's commonplace in Connecticut, not uncommon in Massachusetts, and seen occasionally in neighboring states.

If you want huge law geek bonus points, answer this question, without looking it up or having studied or practiced in New England which is where the phrase seems to be used: What does "PPA" mean in a case caption (when it doesn't mean "phenylpropanolamine," the subject of a spate of recent litigation)?

I did not know the answer until this morning.

I've blogged before about (1) American courts' occasional willingness to enforce Sharia law when they enforce foreign law (such as Saudi law) — just as they enforce the law of other countries — and about (2) the general propriety of courts' enforcing the judgments of Sharia arbitration panels, when the parties had contractually agreed to have a dispute settled through such arbitration.

But I thought it would also be helpful, as a counterpoint, to quote this case I just ran across, which deals with (3) when American courts should decline to hear a case because the proper forum is a foreign country that applies Sharia law. The case, Rhodes v. ITT Sheraton Corp., 9 Mass. L. Rptr. 355 (Mass. Super. Ct. 1999) [UPDATE: Note that the Lexis version of the case is garbled in one important place], is from 10 years ago, but I've seen very few references to it, so I expect it will be new to most readers:

Plaintiff is a British citizen and resident of Great Britain. While on summer break from her university in 1994, she visited her parents at their home in Jeddah, Saudi Arabia. On August 23, 1994, she and her sister met two of their friends at the Red Sea Beach Resort, which is part of the Sheraton Jeddah Hotel and Villas (Jeddah Sheraton) [operated and managed by a wholly owned subsidiary of ITT Sheraton]. The resort complex on that date encompassed a beach, a large concrete wharf, a wooden platform or jetty and a lagoon. Coral stretched out from under the jetty and around the edge of the lagoon. Plaintiff struck her head on this coral when she dove into the lagoon from the jetty. She lay in the water, face down and unable to move, until she was pulled out and taken to a nearby hospital.

Plaintiff sustained a high level spinal injury as a result of her dive.... Today, plaintiff ... cannot move her left arm or either of her legs and is limited to minimal movement of her right arm.... Plaintiff’s expert estimates that her medical expenses resulting from the accident will exceed ten million dollars.

Under Mass. Gen. Laws. c. 223A, § 5, I may dismiss or stay an action upon finding “that in the interest of substantial justice the action should be heard in another forum.” Massachusetts courts have incorporated into the state forum non conveniens analysis standards and principles enunciated in federal cases discussing the federal common law doctrine.... First, I must consider whether an adequate alternative forum is available. If an adequate alternative forum does exist, I then must determine whether private and public interests strongly favor litigating the claim in that forum....

Defendants cite federal cases granting motions to dismiss on forum non conveniens grounds when the alternative forum was Saudi Arabia. Implicit in these decisions is an acceptance of Saudi Arabia as an adequate alternative forum. None of the cases, however, addressed concerns similar to those raised by plaintiff. See, e.g., Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir.1989) (parties previously agreed to bring all disputes before Saudi tribunal and nothing indicated that Saudi forum would treat plaintiff unfairly); Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 801 (7th Cir.1997) (male plaintiff was citizen of Saudi Arabia); Shields v. Mi Ryung Constr. Co., 508 F.Supp. 891, 896 (S.D.N.Y.1981) (plaintiff attempted to “cast aspersions” upon Saudi legal system without any supporting evidence); Tisdale v. Shell Oil Co., 723 F.Supp. 653, 654-655, 659 (M.D.Ala.1987) (in absence of undue influence, unequal bargaining or evidence that Saudi law is inadequate, choice of forum clause requiring that all disputes be referred to Saudi Labor Commission is enforceable); Jeha v. Arabian Am. Oil Co., 751 F.Supp. 122, 125-126 (S.D.Tex.1990), aff’d, 936 F.2d 569 (5th Cir.1991) (plaintiffs offered no evidence that Saudi forum was inadequate). Although my finding regarding the private and public interests in this case renders a final determination as to the adequacy of a Saudi forum unnecessary, I note that plaintiff would face significant procedural disadvantages in Saudi Arabia.

The first significant drawback to trial of this case in Saudi Arabia is that plaintiff would not be permitted to testify. All parties are presumed to be prejudiced in favor of themselves and therefore are not considered to be reliable witnesses. Plaintiff could submit written assertions that would be made part of the record. If a defendant were to deny any assertion made by plaintiff, however, she would be forced to prove that assertion by other means.

Plaintiff’s ability to prove her allegations would also be limited by the fact that Saudi courts give more weight to oral testimony than written testimony. Thus, defendants’ oral testimony that they took certain safety precautions would carry more weight than any documents plaintiff could submit to rebut their testimony. [Footnote: The lack of pretrial discovery procedures in Saudi Arabia would stymie plaintiff’s ability to offer such documents. Although according to defense expert Frank E. Vogel parties may request that the court demand any necessary documents from another party, the court need not exercise its wide discretion in her favor.] Prevailing in Saudi Arabia would be even more difficult for plaintiff in light of the requirement that, “[i]n financial matters, a party must produce two male witnesses or one male and two female witnesses in order to prove a point.”

Another disadvantage to a Saudi forum is that Saudi courts do not follow any uniform rules of procedure. Every party to a case, “sitting and facing the qadi (the judge), conversationally presents its evidence which the qadi hears and weighs.” Id. Cross-examination is limited, if allowed at all. The qadi decides when enough evidence has been heard and at that point announces a decision in open court. Saudi Arabia does not offer parties the opportunity to be heard by a jury.

In addition to no rules of civil procedure, no system of binding judicial precedent or case law exists in Saudi Arabia. Plaintiff would not be able to predict or expect any particular rulings on issues of law that are established in Massachusetts. That this and the other procedural differences would apply equally to the defendants does not minimize that fact that a Saudi forum would deprive plaintiff of basic procedures which she expects to enjoy in a Massachusetts forum.

Finally, the existence of biases against women and non-Muslims in Saudi Arabia would impose additional disadvantages on plaintiff. Defendants’ expert attributes the differential treatment based on gender and religion to “long-standing, well-known provisions in the law.” Although defendants promise to ensure that any recovery by plaintiff in a Saudi court would not be diminished because of her gender and religion, their guarantee cannot insulate plaintiff entirely from the systemic prejudices....

Even if the cumulative effect of the factors discussed above were not enough to deem Saudi Arabia an inadequate alternative forum, dismissal still would be improper if private and public interests weigh in favor of trial in Massachusetts. [The court then explained why it concluded the interests do so weigh; two important reasons were that “this is the corporate defendants’ home forum” and “defendants' alleged negligence occurred at least in part in Massachusetts.” -EV] ...

At this stage, when the parties have not had an opportunity to submit briefs on choice of law, it is unclear what substantive law governs. [Note that the question of which law applies (the choice of law question) is separate from the question of where the case should be tried (the forum question), though one factor in favor of deciding a forum non conveniens motion is indeed a slight preference for the forum the law of which would apply. -EV] Defendants assume that Saudi Arabian tort law is applicable based on Massachusetts choice of law principles. These principles do not clearly point to Saudi law; several factors appear to favor Massachusetts law. Even if Saudi law were to apply, application of a foreign law, while not ideal, need not be a determinative factor in the forum non conveniens analysis.

[Footnotes merged and moved:] Plaintiff ... would be disadvantaged if Saudi substantive law were to govern this case .... For example, the better rule of law in a tort case probably would be that of Massachusetts. Saudi tort law is “subsumed under private actions and do[es] not exist as a distinct and highly developed field of law.” Given the theory of liability in this case, it also is significant that Saudi law does not recognize agency within the concept of torts; [the ]general Islamic philosophy is that one is always responsible for one’s own acts[]. Moreover, consequential, indirect, and speculative damages generally are viewed as nonrecoverable through a Saudi court. If she establishes defendants’ liability, plaintiff could only expect to recover actual medical expenses and a fraction of her “diyah,” which is a fixed amount of compensation for personal injury.

I'm writing the foreword for the forthcoming Michigan Law Review Survey of Books Related to the Law, and I decided to write about how the Kindle and similar products (especially in their foreseeable future generations) are likely to change law books -- textbooks, treatises, other practitioner books, and academic books. I have a bunch of ideas, which I hope to blog about soon. But in the meantime, I'm facing a problem: What term should I use to refer to the hardware?

"Electronic book" and "e-book" have seemingly come to mean the electronic texts. "E-book reader" is the common term, but it strikes me as a bit jarring when used in a discussion of humans as readers (e.g., "Readers will like e-book readers because ..."). "Kindle" refers just to one product, and is likely to lead my readers to think about the limitations of the current product, rather than the foreseeable possibilities of the technology more generally. Any suggestions? I prefer something that will be instantly comprehensible without the need for any special definition. Many thanks!

A commenter on the reference to President's daughters thread writes:

The grammar seems more troublesome than the mention, without name or likeness, of the President's daughters.

I am open to education or correction, but would not "healthful" (instead of "healthy") lunches for students be the proper usage as well as a worthy goal?

Fortunately, a standard reference source gives the answer. If you go to dictionary.com, you'll see that both the Random House and the American Heritage give "conducive to good health; healthful" as one meaning of "healthy." And as a special bonus, the American Heritage entry is followed by this Usage Note:

The distinction in meaning between healthy ("possessing good health") and healthful ("conducive to good health") was ascribed to the two terms only as late as the 1880s. This distinction, though tenaciously supported by some critics, is belied by citational evidence — healthy has been used to mean "healthful" since the 16th century. Use of healthy in this sense is to be found in the works of many distinguished writers, with this example from John Locke being typical: "Gardening ... and working in wood, are fit and healthy recreations for a man of study or business." Therefore, both healthy and healthful are correct in these contexts: a healthy climate, a healthful climate; a healthful diet, a healthy diet.

Of course, if one follows the Horace Google principle, one can see why it is the poster writers said "healthy" instead of "healthful": "Healthy lunch" yields over 100 times more Google hits than "healthful lunch" does. Sticking with the most common usage is generally better for advertising, I think, because the less common usage seems likelier to distract the reader from the substance. (There are of course exceptions, for instance if the advertisers want to stand out through their unusual word choice, or if the more common usage is intensely objected to by a substantial minority of readers and the less common usage is not intensely objected to by a majority. But I take it that here they were just following the norm, deliberately or otherwise; and the commenter's objection is a pretty rare one, as the extremely lopsided usage data shows.)

But in any event, the moral of the story: Before you make a claim of usage error, or even usage "troublesome[ness]" (by the way, the issue here is not "grammar," but usage, since both "healthy" and "healthful" are adjectives), look it up.

The Orlando Sentinel writes:

The girl, who turned 17 on Monday, is at the center of a custody dispute in Orlando, where she sought help from a family she barely knew — a pastor and his wife [the Lorenzes] willing to take in a teen who feared her own [Muslim] family's retribution because she converted to Christianity....

The girl appeared before a crowded courtroom full of lawyers and spectators on Monday when an Orange Circuit Court Judge ordered her into Department of Children and Families emergency custody....

Her dispute with her family became news several weeks ago when the girl ran away from her home in Columbus, Ohio.... The teen told the Lorenzes she feared her family would hurt her, kill her or send her back to Sri Lanka, Beverly Lorenz said....

Reached by a Sentinel reporter by phone, the girl's mother said little. "Yes, of course" her daughter would be safe should a judge eventually order her back there, she said.

And her father would not harm his daughter if she wanted to be a Christian, the woman said....

More here:

An attorney representing the girl's mother said the parents were allowing Bary to explore her Christianity. The parents claimed that their daughter was not afraid until she made contact with Pastor Blake Lorenz in Orlando....

It seems to me the law is clear: If a judge finds that there is real danger of serious violence from the parents — whether stemming from religious tensions or anything else — then the minor may indeed be placed into state custody and from there into a foster home. Naturally a judge can't just presume this based on generalizations about Islamic attitudes towards apostasy: There would have to be credible evidence of specific threats, or actual instances of physical abuse, and the judge would presumably listen to the child, the parents, and any other witnesses, and decide, difficult as the she said/they said factual question might be.

Thanks to Religion Clause for the pointer.

Here's the poster:

According to The Washington Post, "the White House asked the Physicians Committee for Responsible Medicine to take down the ads, which feature Jasmine Messiah, a vegetarian who attends a Miami-Dade County public school that, she says, offers no vegetarian or vegan lunch options." According to the president of the Physicians Committee, the White House Counsel's office "made it clear that they viewed this as something that could lead to legal action if I wasn't responsive. But that was an implication."

It's hard to evaluate the White House Counsel's office statements based on such a paraphrase, but if they did suggest that the reference to the President's daughters was legally actionable, they were wrong. The so-called "right of publicity" may go further than I'd like, but even it doesn't go that far, especially in the context of a noncommercial poster that references someone in the course of making a political point.

Such speech is protected by the First Amendment, and in any event not an infringement of the right of publicity in the first place. See, e.g., Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 592 (D.D.C. 1985); Berkos v. NBC, Inc., 515 N.E.2d 668 (Ill. Ct. App. 1987); 765 Ill. Comp. Stat. 1075/1 et seq.. That the names aren't used is not itself dispositive, but the noncommercial nature and the fact that it involves something more than just selling a copy of someone's name or likeness should be dispositive.)

Of course, if the people from the Counsel's office simply relayed a request on behalf of the President, asking the Committee to do what they argued was the morally right thing and not really threatening legal action, that's a different story. I'm not sure why that should come, though, from the Counsel's office; but maybe the Counsel's office has historically had a broad mandate in such matters.

Still, even if the claim is that the Committee is doing something unethical or in bad taste, I don't see how that would be so. They aren't saying anything offensive or demeaning about the girls. They aren't faulting the girls for anything they've done. They're not, I think, putting them in a position where they might be deeply embarrassed if they see the ad, or if a friend asks them about it.

In fact, the ad isn't about anything the girls did — it's about what their relatively well-to-do parents are able to provide them, and what the Committee says the government should provide to all children (a position, incidentally, that I don't share on the merits). I don't see anything tasteless or ethically improper in commenting on public affairs, and in part on the options that the President has, by mentioning in this way the privileges that the President's children enjoy.

For the answer, see this comment. I just thought the quote would work perfectly as a post title, of course ripped savagely out of context.

D.J.T. v. L.S., 2001 WL 492492 (Del. Fam. Ct.):

This Court also has concern regarding Father's decision-making in allowing [son] to watch certain R-rated movies. While Gladiator may not be such a poor decision, clearly a movie that has sexual content would be. Mother testified that [son] was allowed to see the movie American Pie which has sexual content.

The son was 14 at the time of the court decision; I suppose he might have been a year or maybe even two younger at the time of the movie watching, but the court's discussion suggests to me that it's talking about the son roughly at the age he is at the time of the hearing, rather than when he was many years younger.

As I've suggested before, it seems to me that courts ought not make such child custody decisions based on the parents' exercise of their First Amendment rights, which include letting their children watch or read various materials. Perhaps the rule might be different as to hard-core pornography, but American Pie, whatever its merits or demerits, surely doesn't qualify as that. Likewise, there is much more of an argument for considering even speech (or exposure to First-Amendment-protected materials) when there's serious evidence that the speech is likely to cause imminent harm to the child. But again, that's a very hard case to make about American Pie.

In any case, I've written much more about this before, but I just thought I'd pass along this one extra data point.

With thanks to the Administrative Office of the North Carolina courts, and to Stephanie Plotin of the UCLA Law Library, I can report some data on alienation of affections lawsuits in North Carolina: In fiscal years 2000-2007, there were an average of 230 such filings per year -- a bit over 0.5% of the number of all divorces, but about twice the number of product liability lawsuits, and about three-quarters of the number of wrongful death lawsuits.

Unfortunately, the table doesn't have separate categories for other torts, so I can't compare to, say, slander lawsuits and the like. The Administrative Office also stresses that this is an unverified, preliminary report; and one can certainly see how the data might be skewed in various ways, though likely in the direction of underreporting (for instance, lumping it under the general category of "intentional torts") rather than overreporting.

I thought I'd blog one more excerpt form my Torts syllabus; parts of it are focused on torts specifically, but I suspect that much the same can be said about policy arguments in most legal fields. As always, I'd love to hear suggestions for improvement, but recall that the goal of this passage is to give students an idea about the role of policy arguments in the law, and about how one can more effectively construct such arguments. The passage is not aimed at defending or criticizing particular tort law rules, or even particular classes of policy arguments.

Throughout the class you’ll be asked to make policy arguments -- arguments about the way the law should be, not just about the way it is. And in fact tort lawyers often make such arguments in court, for several reasons:

1. Tort law is judge-made law, adopted by judges who -- deliberately or unconsciously -- accepted certain arguments about the way it ought to be. And in tort law (as opposed to much of criminal law, evidence law, and civil procedure), the judicial development continues. Courts are generally free to adopt new theories, or even overrule old ones.

2. As you’ll see throughout the semester, some states adopt one approach to certain legal questions, others adopt another, and still others haven’t yet adopted any. Thus, for instance, different states take different views of the right to stop appropriation of name or likeness. Courts considering the question for the first time in their state need to choose one or another approach. And even courts that have chosen one might be persuaded to choose the other. This choice necessarily involves policy judgment.

3. Even the settled legal rules, as you’ll see, often have less settled aspects, on which there might be no precedent in your jurisdiction. There too policy arguments can help courts decide how to resolve the matter.

4. As I noted in the discussion of analogizing and distinguishing cases, whether cases are “similar” or “different” often depends on policy considerations. For instance, for most legal rules I take it we’d say that white cars and black cars are “similar,” but white cars and white trucks may be “different.” But those aren’t judgments of physics; color differences are real differences. Rather, they are judgments that for nearly all the policies that the law cares about, the size of a car might matter (e.g., because its weight damages the road more, or because its height might not fit under bridges, or because its fuel consumption can cause environmental problems) but the color would not.

On the other hand, if there is a difference between white cars and black cars that’s relevant to some policy of tort law -- for instance, if white cars were much easier to see at night than black cars and thus were less likely to be involved in accidents -- then we might consider white cars and black cars importantly “different.”

So how does one make an effective policy argument? A few thoughts:

1. The best policy arguments are generally ones that go beyond the abstract, and tie the abstract arguments to concrete realities of how people act (and how the law operates). Say, for instance, that you are arguing about when newspapers should be held liable for publishing articles about political officials that make false claims and that hurt the official’s reputation as a result. You could argue that “people should be liable for the harm they cause,” or “the freedom of the press means that the press can’t be held liable for criticizing the government.” And it’s possible that these high-level abstractions will persuade some of your listeners.

But others will be skeptical about each of these generalities. Often we don’t hold people liable for certain kinds of harm that they cause. And sometimes we do hold the press liable for its statements, even if the statements criticize the government. It’s certainly not obvious that the freedom of the press should include complete immunity from all liability. As Justice Holmes put it, “General propositions do not decide concrete cases.”

So to make the arguments more persuasive, you need to marry the generalities with more concrete observations about your particular problem. For instance, you might point out that a publisher faced with the risk of liability may decline to publish even true statements, if it’s not sure the statements are true, or if it thinks a jury might wrongly conclude that they’re false. Imposing liability for false and defamatory statements will thus deter socially valuable true statements, and not just the harmful and socially valueless false statements.

from someone who has some experience with immigration law:

I want to assure you that immigration judges are well aware of the potential for abusing asylum by making sham conversions. However, it is not the IJ's job to marshal evidence of a true religious conviction. As in the Article III courts, the IJs are there to provide a neutral venue for determining an alien's removability and any possible relief from removability under immigration laws.

The IJs have a bit more leeway than Article III judges when it comes to addressing respondents and witnesses, but it is ultimately the respondent's to demonstrate religious conviction--the burden is on the alien to establish eligibility for relief. Then, the DHS trial attorney [TA] may present evidence--including by cross-examining the respondent--demonstrating that the respondent does not sincerely hold the claimed religious beliefs.

Some standard questions asked by TAs to establish Christian bonafides:

Who is Jesus Christ?

What is your favorite story from the Bible?

What is your favorite prayer? Can you recite that prayer or a part of that prayer?

These seem like rather basic questions, but it is astounding how often Christian claimants cannot answer them. It is also fairly easy to spot the respondents who have been coached since they know one and only one story from the Bible, which is inevitably short-handed as: "water to wine." This is a reference to Jesus' first public miracle at a wedding in Cana and is considered an anti-Shibboleth by TAs and many IJs. Most frequently, Chinese applicants can name only this Bible story, as a result of being coached by the smugglers they use to enter the United States. Similarly, applicants who have been coached will say "the Lord's Prayer" is their favorite, and then recite some variation of the traditional Catholic grace before a meal (i.e. not the Lord's Prayer). The smugglers abroad and "immigration consultants" here in the United States are not very imaginative and have no real interest in their victims, so these responses do not change that often.

If the respondent satisfactorily answers these questions, the TA may then escalate to more complex questions of Christian theology. That is a matter of individual discretion, however. Often, you can get a pretty good idea as to the sincerity of the respondent's religious conviction with just those few questions. (Additionally, the TAs deal with many religions on a regular basis, not just Christianity. I suspect--without knowing, mind you--that they have a list of questions and answers prepared for the most common religions. They also prepare in advance of proceedings for this type of inquiry.)

You are right to point out that a person can know the theology of a religion, its practice, and its procedure without genuinely having religious conviction. As with many areas of law, we cannot actually know a person's state of mind, thoughts, and beliefs. However, a person's knowledge and behavior can be a good indication of same. Typically, an applicant for asylum making a religious claim will provide three types of evidence of belief: his testimony, the testimony of others who worship with him or see him at worship or know of his long-standing belief, and documentary evidence like baptismal certificates, photographs from religious ceremonies, etc. All three types are open to inspection and attack by the TA.

In my Torts syllabus, I also included these paragraphs on analogizing and distinguishing cases. Though they are in many respects pretty obvious, my sense is that sometimes it's helpful to walk through even the obvious things, especially to students who are likely feeling nervous and inadequately informed about what they're supposed to do. And of course if any of you can contribute some ideas I can add to this to make it less obvious, I'd be very pleased to see them.

As I mentioned, analogizing and distinguishing cases is an important skill. Its basics are pretty intuitive, but let me offer this simple framework:

A. To distinguish cases, you need to (1) identify the differences between the cases, and (2) explain why the differences should be legally significant. The explanations called for in step 2 are often based on (3) particular policy arguments that point in different directions for the two cases and (4) analogies to other legal rules in which a similar distinction is drawn.

For instance, say that a precedent concludes that it can’t be a tortious disclosure of private facts to publish accurate information (for instance, a person’s criminal record) that one has gotten from government records (for instance, court documents). And say that you want to argue that it is a tortious invasion of privacy to publish accurate information about a person’s past misdeeds if one gets the information from witnesses to the misdeed. (Perhaps the misdeed never led to a prosecution.)

You need to point to the difference between the cases -- the precedent involved court records and the new case doesn’t. But you also need to explain why that difference should be legally significant. After all, presumably both sorts of disclosure are equally intrusive on people’s privacy, and are potentially equally newsworthy (newsworthiness is a defense to a disclosure of private facts claim). What sorts of arguments can you think of to support the distinction, whether or not you yourself think those arguments carry the day?

B. To analogize cases, you need to (1) identify the cases to which you want to analogize, (2) point to the similarities and explain why they should be legally significant, and (3) explain why the differences should not be legally significant.

When you distinguish cases, you often know which precedent you need to distinguish (sometimes because it’s the one your opponent has already pointed to as a good precedent for him). But when you want to support your position with an analogous precedent, it often won’t be clear exactly what precedent is analogous. It might take a good deal of research, as well as creative thinking about how certain seemingly different cases are actually analogous in an important way. Such thinking is one thing that we’ll be trying to train in this class.

I'm all fine with works of ridiculous fiction, but it seems to me that even the ridiculous should be as accurate as possible given the constraints of its ridiculousness. So the trailer for 2012 doesn't get a pass for calling Mayans "Mankind's Earliest Civilization," which isn't even close.

I thought I'd take the liberty of giving my periodic reminder that Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (by yours truly) makes a nice present for a friend or relative who's going to law school, or going to start the second year of law school. And it's not a bad present for yourself, too, if you fit those categories.

True to its title, the book is about writing law review Notes, writing law review articles more broadly (there isn't much of a difference between the two), writing seminar papers, and doing law review write-on competitions. Even if you already wrote on to law review, or have no interest in being on law review but are planning on writing an independent research paper or a seminar paper, it can help you with choosing a topic, structuring the article, figuring out a research plan, improving your writing, and then circulating the article for publication.

Here's a very nice review from Tiger Jackson and Jeff Newman, in 11 Scribes J. Legal Writing 141 (2007):

Every law student is encouraged to try to make law review, but no one has ever explained how to do it as well as Volokh. His tone and style are so natural that you can hear his voice in your mind. Starting from scratch, he explains what a law review is, why the experience is valuable, what the write-on competition entails, how to boost your chance of success on it, and what the staff of a law review does. He demystifies the details of the write-on, making this section alone well worth the price for first-year law students.

But even a student who has no desire to be on law review will find this book enormously helpful for writing a seminar paper. In addition to reviewing important points of writing style (e.g., passive voice, legalese, redundancy), Volokh briefly explains the often-overlooked elements of logic and rhetoric and how their misuse can diminish an argument. Unlike most other writing guides, Volokh's book spends plenty of time showing the reader how to use evidence and why it must be critically examined rather than blindly accepted. Even though only five pages are especially devoted to seminar papers, much of the advice Volokh dispenses about writing for law review applies just as well to writing for a professor, and Volokh explains why. He encourages students to consider submitting papers to competitions and even to other law reviews, whether or not they are on their own schools' law review.

Despite the subtitle, this book isn't just for law students. Novice and experienced law-review writers will also find sound advice for improving their writing and expanding their markets. Volokh systematically guides the reader through the stages of producing publishable legal writing, from choosing your subject to methodically researching it, writing about it, and submitting the piece for publication. This book is a must-have for every law student. We also recommend it for practitioners interested in writing and publishing scholarly papers.

As I mentioned before, the publisher no longer gives me copies than I can sign and sell. But I've finally made up some bookplates — basically labels with a simple design on them — that I'll happily inscribe, sign, and send to anyone who asks. Send no money, but e-mail the address and the preferred inscription (if you have a preference) to volokh at law.ucla.edu.

You can also check out the reader reviews.

Here are some materials I put together for my first-semester torts students, aimed at explaining some things that students often find mystifying and frustrating about law school (such as, why aren't we just learning the rules?). My thinking is that students are generally happier if they understand that we have good reasons for certain pedagogical choices, and that they often accept the validity of those choices once we tell them what the reasons are. Maybe I'm living in a fool's paradise on this, but that's been my sense from when I've done this before.

I thought I'd also pass these thoughts along here, in case some of you find them interesting. And if you have some more items along these lines that you think first-year students would find helpful, please do mention them.

What will you be asked to learn in the next three years, and in this class in particular?

1. The Law: Many class sessions — both in torts and in other classes — will be spent learning particular legal rules. And these rules may well prove useful in your future practice, even if you don’t become what most people think of as a “tort lawyer,” which is to say someone who does personal injury law. Lots of business litigation involves torts, such as misrepresentation, interference with business relations, trade libel, and the like. And many of the concepts from traditional personal injury torts cases apply to business torts cases as well.

2. Concepts: A second answer is basic legal concepts, reusable modules that come up in many contexts: negligence, causation, joint liability, mental state, and the like. You’ll see them again in criminal law, in First Amendment law, in the law of copyright damages and contributory infringement, and elsewhere.

3. Skills: You will also be learning legal skills.

a. Reading cases: One important skill is reading cases. This is what you need to do to figure out what the rules are. We can teach you California tort law as it is in 2009; but what if you need to give legal advice ten years from now, in another state, about some subject matter you never studied in law school (for instance, employee benefits law)? Learning the skill of reading cases is therefore more important that just learning the rules.

Moreover, even if you think you know the rule, you’ll need to read the cases to figure out what the elements of the rule really mean in a particular situation. We can teach you that the tort of “disclosure of private facts” consists of “giv[ing] publicity to a matter concerning the private life of another ... if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” But what do those terms actually mean? Would, for instance, an 11-year-old girl’s giving birth to a child be “of legitimate concern to the public”? You can only answer the question by looking at how cases have interpreted the vague “legitimate concern” language.

And you’ll need to read the cases to figure out how best to argue in the direction that your client needs you to argue. Sometimes there might not be a clear answer given by the cases. You’ll therefore need to argue by comparing your scenario with those in past cases.

b. Analogy and distinction: The last point about reading cases leads us to a separate skill: making analogies, and drawing distinctions, between the case before you and past precedents. This is a quintessentially lawyerly skill (at least in countries which use the Anglo-American legal system). Math classes, for instance, generally call on you to solve a problem by applying basic mathematical principles, or deriving the principles and then applying them. It’s helpful to see the similarities and differences between this problem and past ones, but chiefly because seeing them can help point you towards the right principles to apply.