I’ve just posted to the Social Science Research Network my forthcoming article (“Duty Per Se: Reading Child Abuse Statutes to Create a Common-Law Duty in Favor of Victims”).
My argument, for the non-lawyers out there, is that laws that impose a duty on medical professionals to report child abuse should also provide the basis for a tort claim against those same providers. I wrote the piece for a symposium about “Dr.” (ugh) Earl Bradley, a deranged man who molested hundreds of children and even infants over the course of many years. And it became obvious to me that existing laws weren’t doing enough to stop this sort of madness, and that only the threat of tort law could get the medical professionals to speak out against one of their own. (I’m speaking in gross generalities here, of course.)
We’ve learned from the Penn State horror story involving Jerry Sandusky, from the exhausting spectacle of the Catholic cover-up, and from too many other sources that institutions protect themselves. Tort liability won’t stop this, but it might put a dent in it. And that’s well worth doing.
For those who want to get their law geek on, here’s the link, and here’s the abstract (in case this isn’t enough to stop you, you can download and read the whole thing by toggling over there….)
This article examines recent high-profile cases involving the sexual abuse of children. It focuses on a case involving a Delaware pediatrician convicted of sexually molested hundreds of children, and also discusses cases of alleged abuse by priests and by a Pennsylvania State University football coach, Jerry Sandusky. The article proposes that courts use “duty to report” statutes to recognize a common law duty for medical professionals who know or suspect abuse to report it. Failure to discharge that duty should result in liability where the causal connection between that failure and subsequent abuse can be established.
The article introduces the concept of duty per se, and, building on insights from the Restatement (Third) of Torts, distinguishes cases of affirmative duty to act from cases of misfeasance that are considered under a negligence per se analysis. It proposes that courts consider four questions in deciding whether a statutory duty to act should create a corresponding duty under common law: (1) How important is the state’s interest in preventing the harm the statute covers? (2) How closely connected is the class of actors upon whom the duty is imposed to the harm suffered? (3) Is the prospect of tort liability for failure to follow the statutory directive likely to cause unintended consequences for those upon whom the duty is imposed? (4) How likely is it that this harm will be adequately addressed by other means?
In the case of child abuse statutes, the answers strongly counsel courts to recognize a duty by medical professionals to report child abuse, under penalty of tort liability for failing to do so.
Originally posted on March 5 (reposted after discussion with students at law school preview day)
Since my first posting on the Westboro Baptist Church case, I’ve discussed it in a bunch of different settings — on Facebook, at swim practice, at work. The case, recall, involved Albert Snyder, the father of a dead soldier who just wanted to bury his son in peace, against Fred Phelps and his sub-human followers (and their exploited children). I’ve also been reading around on the decision, coming up mostly with misty-eyed defenses of the holding. Andrew Sullivan is typical in this regard: In a brief post, he criticized French laws that criminalize certain kinds of hate speech while celebrating the decision in the Westboro case. His conclusion: “I’m glad I live here.”
But let’s look at the kind of behavior Sullivan is defending. According to the linked story from the Guardian, the defendant, John Galliano, has done such things as the following:
Galliano was arrested on Thursday in the chic Marais district of Paris after allegedly shouting anti-Jewish and racist insults at a couple. He denied the allegations and his lawyer said he was counter-suing the couple for defamation. Police said he had drunk the equivalent of two bottles of wine.
Two days later a second woman claimed Galliano had similarly insulted her in the same bar in October. Then a video was put online appearing to show Galliano on another occasion telling two women: “I love Hitler. People like you would be dead. Your mothers, your forefathers would all be fucking gassed.”
The last one is particularly upsetting, and it’s right here:
So this boor got right “into the grill” of these two women (to quote Marjorie Phelps during oral argument in the Snyder v. Phelps case), in a way that is beyond insulting and possibly even threatening. (Phelps herself implied that the speech shouldn’t be protected in such cases.) Is this really the kind of speech — especially the last spew — that the Founders would have wanted protected? And even if it was, so what? Back when the Nation was founded, we didn’t have tort law that protected against invasions of privacy or the intentional infliction of emotional distress, either. Now we do, and I’m in favor of drawing the line where others won’t, in favor of the plaintiff in this case. Here’s dissenting Justice Alito from Snyder v. Phelps:
“Our profound national commitment to free an open debate is not a license for the vicious verbal assault that occurred in this case.”
But almost everyone’s drunk on First Amendment Kool-Aid, and the trickle-down of this poisoned liquid has been to render criticism of the majority’s decision somehow almost un-American. Here’s Philadelphia Inquirer columnist Solomon Jones, trying to reconcile his anger with what he thinks the law requires, and coming up with a call for responsibility:
From a legal standpoint, perhaps the court made the right decision. But when I view it through the prism of fatherhood – a prism that bends and refracts the colors of love and hope that are embodied in our children – I can’t see a circumstance in which the protesters could ever be right.
Had I been that father, confronted by protesters while in the throes of unspeakable grief, I doubt that I could have maintained my composure. If you hate my child because you believe that he is tangentially connected to someone else’s lifestyle, that’s fine. Don’t disrespect or scandalize my child because of it. Don’t wait until he dies to twist the knife. Don’t hurt my child in order to prove a point to someone else. Confront the real target of your rage, and face whatever circumstances result.
That’s not what happened in this case. In this case, a group of people decided that it would be easier to confront the dead than to confront the living. That, in my estimation, is not only wrong. It is cruel. And yet their protests, as distasteful as they may be, are still protected under our laws.
I don’t pretend to understand the twisted logic that would allow professed Christians to compound a father’s grief by protesting at his son’s funeral. But I do understand that freedom brings with it profound responsibility. And in the case of these protesters, they abdicated that responsibility. They went beyond the pale.
Yes, speech in America is free. Yes, we can espouse whatever opinions we wish. Yes, we can gather and protest. But in a land where free speech is at the very root of our democracy, each one of us is responsible for what we say. We are responsible for where we say it, and especially in the case of those who claim to speak for God, we are responsible to an authority that the Supreme Court cannot touch.
But the misguided dopes that are part of the WBC aren’t reading this, much less taking it in. Almost everyone would agree that — laws prohibiting this kind of behavior aside — basic decency and a sense of responsibility militate against what the Phelpses did here. So the question is whether something more is needed. Tort law can supply that missing piece, compensating the injured party and deterring future such acts, and the jury’s verdict should have been allowed to stand. Would such tort liability “chill” speech, the catechismal concern of constitutional law scholars and jurists everywhere? I hope so.
I might be almost alone, but there are others who at least see a big problem here. A particularly astute Facebook friend writes:
I too am befuddled the lack of nuance in the widespread positive response and the increasing conflation of “free speech…” with “universally consequence-free speech.” The actual facts–both those considered by the majority in construing the signs and those set aside in (arguably: swept under) the first footnote [she means the "epic", which the Court declined to consider] –would seem to make for a much closer call than most of the blogosphere recognizes, whichever side one comes down on.
The horrible tragedy of Tyler Clementi’s suicide — doubtless precipitated by the cruel acts of a classmate in taping the young man’s private sexual activity, then posting it on the internet — has stirred an animated and at times angry debate over the appropriate criminal sanctions. The acts are clearly crimes in themselves (with five years’ imprisonment the stiffest penalty for the unconsented posting), but some have asked, rightly, whether the actions could also be charged under the law of involuntary homicide.
While this would be difficult, it’s not impossible: the prosecution would have to prove that the actions were reasonably foreseeable as a result of the bullying. Not so easy to establish, and I’m guessing the prosecutor will shy away from a case that’s so hard to prove. And I’m not sure that I think that punishment would really fit the crime.
But…I’ve not yet seen much discussion of the Clementi family’s civil law remedies. Under the law of torts, Clementi had claims for invasion of privacy (for both the intrusion on his seclusion, as the tort is called, and for the publication of private facts) as well as for the tort of either intentional or negligent infliction of emotional distress (the former is the much stronger case here). Under the law in most states, these claims passed to his estate (probably his parents) upon his death.
The death itself is actionable as a wrongful death, allowing certain classes of beneficiaries (his parents, possibly any siblings) to recover for the value of his life to them. (Such damages include any actual cash value they could have expected to receive, and, in many states, any emotional loss as well.)
Finally, since the actions were intentional and especially egregious, punitive damages (to punish and to deter future, similar wrongdoing) might also be available.
Of course, Tyler’s parents may not wish to pursue these remedies, legitimately thinking that doing so would force them to relive the tragedy and details they’d sooner forget. But the claims are there, and the tort law, like the criminal law, can serve as a powerful deterrent to the next idiot who thinks this kind of thing is funny.
Here’s a photo of the late Tyler, doing what he loved:
I’ve got two somewhat related topics to discuss today. Let’s start with the unpleasant subject of late-term abortions: On Keith Olbermann’s “Countdown” last night,1 Andrew Sullivan said that he was moved by the tragic testimonials of those who’d had such abortions when faced with the prospect of giving birth to seriously disabled children, some of whom were destined to live very short, painful lives. Yet virtually in the same sentence, he added that he opposes late-term abortions; he later reiterated that statement in the Daily Dish, in the most sympathetic way I’ve ever read:
“I am immensely grateful to those readers who have shared such personal, painful experiences with such candor and open hearts. I have to say that I remain somewhat shaken by the emails…. They reminded me of the human beings behind these tragedies, and forced me to reassess my own certainties and beliefs. I still cannot in good conscience support these abortions; but I can offer my profound gratitude for the readers who have forced this blogger to see things I had not fully grasped so keenly before; and to return to them respect and empathy in the particulars, even while we may disagree in the abstract.” (emphasis added)
I’m not clear as to whether he believes that such abortions should in all cases be illegal, or that he can’t support them morally. In either case, though: Why? Why doesn’t that empathy, so eloquently expressed, translate into a change in the “abstract”?
Let’s take the most extreme case, as the statement in opposition isn’t qualified in any way: A woman is to give birth to an anencephalic, a (human?) being without a functioning brain, or perhaps with nothing but a brain stem. What justifies the abstract position against abortion in this case? We’re talking about an entity that will live for only a few hours, often, and which isn’t human in the sense that matters to me from the point of view of moral philosophy: as a rights holder. Without any capacity for functioning beyond the most primitive, the anencephalic can’t be distinguished from other species to which we afford far less sympathetic (sentimental?) treatment. I do think the cases are different, somehow, but it’s hard to say why. Is this tragic being one of us? Are we so clear about that to oppose a woman’s decision to terminate a pregnancy that will have this result, with the visual image of this unfortunate being likely to be seared into her brain forever?
To his credit, Sullivan acknowledged that in some of these cases the women’s lives will also be placed at risk. Yet his position was stated without an exception to cover such cases, thereby placing him beyond even those who favor legislation prohibiting late-term abortions, where such exceptions are routine. (I’d welcome a contrary clarification, of course.)
On the subject of tragic lives, what should the law do about a sperm bank that negligently fails to screen its donors for various kinds of genetic abnormalities, and then sells the “product” to a woman whose child then ends up seriously disabled? I’m about to be interviewed on this very subject (by WHYY, the local Philadelphia affiliate of NPR) later this afternoon. The woman’s claim, which likely would have focused on the increased expenses of raising and caring for such a child, was barred by the statute of limitations, but her daughter — now a teen with serious mental disabilities — is able to sue, as the statute doesn’t start to run against kids until they achieve majority.
But what are the child’s damages? Her “choices” were this life, or none. Can she sue for something called “wrongful life”? Most states say no, and go all metaphysical in the knees: “It’s impossible to weigh even an impaired life against the inky void of utter non-existence, only God knows, etc.” Is this child a “defective product”? What a horrible thing to say, to think. But if she can’t raise a claim, where’s the accountability?
As a parent of young twins with my own difficult story to tell (but I’m not going to), all of this makes me uneasy. How do we respect life without being (effectively, if not intentionally) punitive?
Under withering pressure from the White House and an enraged public, BP has agreed to establish a compensation fund for those affected by the oil spill. (We need a new name for this disaster. “Oil spill” doesn’t quite capture the magnitude of what happened.) For now, BP has committed to a cool $20 billion for the fund (to be paid into the fund in four yearly installments). That’s welcome news, as is the announcement that Ken Feinberg will be the Fund’s administrator. I’ve had a couple of brief conversations with Feinberg in connection with his administration of the September 11 Victim Compensation Fund. Although the Fund itself was open to criticism for using government money to pay up to $8 million for the best-compensated vicitms, Feinberg himself was fair and compassionate. He also oversaw executive compensation in the wake of the financial bailout, and somehow managed to do that well, too.
The Fund is just now being set up, but here are a few key questions I have:
1. Will the money, once in the Fund, be shielded from creditors if BP goes into bankruptcy? That’s vital.
2. Who will be eligible for recovery? The talk has been about compensating fishermen for economic losses, but what about, say, restaurant owners whose businesses are affected or even destroyed by the inability to get fresh fish? How about hotels that accommodate sun-seeking tourists? Under the prevailing tort law, they’d have a tough time recovering. What about under the Fund? How heavily will it lean on tort law?
3. Will recovery be limited to provable economic loss? What about those who suffer personal injury, possibly as a result of inhaling the vapors? Is the fund intended to compensate them, too?
4. What kind of evidence will count? How flexible will Feinberg be?
5. If a party loses, or doesn’t like the amount of compensation Feinberg awards, by what standard will the appellate panel (of three judges) review his decision? And if the case goes to court, do we start all over again.
Assuming the above questions can be worked out in a satisfactory way, I like this Fund. It takes worker compensation law as a rough model. Both allow quicker and more certain compensation than would be available under the slow, maddening, and unpredictable tort law. And both are funded by the very entities that are presumed to have caused the injury.
This already important story will become an increasing subject of focus as the months go by, and attention shifts from the on-going spill to the tragic and long-legged stories of clean-up and compensation.
Lauren Rosenberg is suing Google after being struck by a car. Why? Because the company’s walking map suggested a less than relaxing constitutional across a busy state road with no sidewalk. This case seems silly — who wouldn’t simply decide for themselves whether a suggested road was the best way to travel? I mean, couldn’t she just have ignored the advice?
Legal issues are rarely that simple, though. Note that the complaint states that Goggle issued a warning about the unreliability of the recommendations, but you only received the full warning if on a computer — not on a mobile phone, and that’s what the plaintiff alleges she used. So in a sense Google might have been better off not warning at all; if it thought a warning was necessary, then it should be provided across platforms. (A Google spokesperson says there was a warning on the phone version, but that it was shorter.) One might even argue that it’s more necessary on a mobile app, because walkers would presumably be likelier than others to use a cell phone, and less able to “check their work” on a phone.
Read the linked article for some of the interesting facts about the case, including that it was dark at the time she was “advised” to cross the street. Does this make her negligent for crossing an unfamiliar street in the early morning hours, or does it strengthen the argument that Google should have made clearer that one shouldn’t rely on its advice? Perhaps both, and, if so, the law recognizes that possibility through the doctrine of comparative negligence — if a jury found that both were negligent (assuming the court first holds that Google owed Ms. Rosenberg a legal duty in the first place), then her recovery would be reduced by the percentage of negligence attributed to her conduct.
Rosenberg’s attorney, whose legal writing makes me shudder (she was “stricken” by a car, for example), has also sued the driver of the auto. Good move. That’s likely to be the only party (besides Rosenberg her very own self) found substantially at fault by the jury.
By the way, the research conducted for this post was done by Googling the topic, so please don’t rely on the facts presented.
The by-now predictable, tedious, and irresponsible Republican bulwark against raising or eliminating the criminally low liability cap that would leave claimant against BP out in the cold really has me frosted. And it’s gotten me thinking about how we compensate people for loss in front-page cases: September 11; Katrina; and this BP oil “spill.”
Let’s talk about who was responsible for these tragedies, and how the victims have (or haven’t been) compensated for their losses.
September 11 was, of course, a terrorist act, but under established principles of tort law, other actors could be liable: airport security, airlines, and — further down the chain — the federal government, for missing the warning signs. But the government, to bail out the struggling airline industry, and in an effort to pile sandbags full of money at the border, created the Victim Compensation Fund. At taxpayer expense, the Fund (not really a “fund” at all) paid out more than seven billion dollars, mostly to surviving family members of those killed when the Towers fell. Some received millions, because payment was largely based on a tort model. I’ve criticized this approach, noting that government should not be compensating people as though they’re tort victims, and that doing so reflects a confusion between the principles of corrective justice (righting an imbalance between two parties caused by one party’s negligence) and distributive justice (deciding how best to allocate the resources across society).
To call what happened in New Orleans “Katrina” is really a misnomer, because the hurricane isn’t what caused the widespread and continuing destruction of large sections of the city: the government did so, through the negligence of the Army Corps of Engineers in connection with the building and maintenance of the levee system, and of untold bureaucrats in designing the Mississippi River-Gulf Outlet (“MR-GO”). The government is immune from suit for the levee failure (but not for MR-GO related negligence), so those injured, financially wrecked, or rendered homeless in the wake of Katrina had to content themselves with the meager assistance afforded by the Federal Emergency Management Agency. (Criticisms of FEMA’s response are legion and some, like this one from Kevin Drum in Mother Jones, are devastating; but they miss the more central issue.) I’ve criticized this approach in several places, including the documentary film “America Betrayed,” and this article.
Now comes the BP disaster, which threatens to swamp the rest. Yet because of an ill-considered federal law that I discussed here, BP will be liable for clean-up, but for only a relative pittance ($75 million) for liability to those economically or otherwise ruined. Unless this cap is lifted — and the legal change is made to apply retroactively — or unless there’s a government “fund” created, many of those destroyed by BP’s probable criminal acts will be entitled to…nothing.
How can our different responses to these tragedies be explained? Only by thinking about politics and power, not by looking at justice. But there might be a limit: Expect the law to change, and for BP to be held accountable. (Please!) If not, President Obama has suggested that the taxpayers will be on the hook. If we are (and I wouldn’t object), let’s spend more time thinking about a better model of compensation when we’re all left holding the bag.
And we must demand more comprehensive regulation: As Rachel Maddow pointed out this week (with her outrage well-justified by the facts), a similar spill went on for months about thirty years ago, and the same useless efforts were made then, as now, to stop it. She concludes, correctly, that Big Oil has gotten much better about drilling deeper and deeper (200 feet v. 5,000 feet), with correspondingly higher risks, but not any better at all about stopping it once it happens. Enough.
Over at 365gay.com, you can find my just-published column tearing into Minnesota Gov. Tim Pawlenty for vetoing a bill that would simply have recognized the humanity of the LGBT citizens of his state, by allowing aggrieved partners to decide what’s to be done with their deceased spouses’ remains, and to have same basic right to call the defendant who caused the death to account (through a wrongful death suit, allowed to legally married, opposite-sex couples).
Then, this morning I read about the sentencing of the gay Malawi couple who had engaged in a formal commitment ceremony to fourteen years of hard labor. Here’s what a Presidential spokeswoman had to say:
Betsy Chirambo, an adviser to President Bingu wa Mutharika, expressed concern over calls by some activists for the West to withdraw aid to Malawi because of the case. Up to 40 percent of Malawi’s development budget comes from foreign donors.
“It is not our culture for a man to marry a man,” Chirambo said this week. “That is not even in our constitution. Some of these rights are not good for our culture.”
The men engaged in a commitment ceremony — they didn’t “marry,” because legally, they can’t.
I’d start by threatening to cut aid in half, immediately, unless the men are released. That would get their attention.
That’s not going to happen, though. Instead, the State Department issued this toothless condemnation:
The United States is deeply disappointed in [the] conviction of same-sex couple Tiwonge Chimbalanga and Steven Monjeza in Malawi. We view the criminalization of sexual orientation and gender identity as a step backward in the protection of human rights in Malawi. The government of Malawi must respect the human rights of all of its citizens. The United States views the decriminalization of sexual orientation and gender identity as integral to the protection of human rights in Malawi and elsewhere in the world. (emphasis added)
“The government of Malawi must respect the human rights of all of its citizens.” That statement sounds a bit hollow coming from a government that still hasn’t managed to protect its LGBT citizens from workplace discrimination. And it brought to mind Pawlenty’s unsaying of gay relationships — even in death, your relationship means nothing and won’t be recognized in any way.
I’m not equating fourteen years of hard labor to what the LGBT community experiences in the U.S., although being fired from one’s job just for being, say, a lesbian, is devastating enough. I am saying that our actions and our high-minded rhetoric are often, and sadly, at odds.
I was appalled but not shocked to read today that legislation passed in 1990 (that created the “Oil Spill Liability Trust Fund”) limits the liability of BP in connection with this incident to $75 million. That’s right: a tiny fraction of the total amount of damages this disaster, which may prove to be unprecedented, will ultimately cause. In addition, BP is responsible to pay for the cost of containment and clean-up — good, but no help to those economically or physically injured.
That liability limit was part of a 1990 law that created a trust fund to cover more substantial liabilities, and that is funded by a very miniscule tax on each barrel of oil paid by the companies (who will then naturally pass it off to consumers). That tax will fund an additional $1 billion to be used as a compensation fund for each incident, no matter how enormous. And disasters don’t get any more enormous than this one.
Today, NJ Senator Bob Menendez introduced a much-needed bill that would raise the cap on oil companies from $75 million to, oh, $10 billion. Even this might not be enough, given that the sea fishing business is a $6 billion dollar industry per year in the Gulf alone. Menendez intends for his bill, called (I love this) the “Big Oil Bailout Prevention Act” to apply retroactively and thereby force BP to pay. This could be a political fight worth watching. Who’s going to stand up for oil in this case, and what will happen to their careers if they do?
In general, I favor deals limiting liability in exchange to paying into a compensation fund. But this particular fund doesn’t meet my minimum fairness requirements. First, the amount the companies have to pay in is so teensy, and therefore so easy to pass along to the consumer, that it doesn’t seem like much of a fair exchange — and in any case doesn’t force anyone to consider the true environmental costs of oil drilling. Second, if the government is going to get involved in a compensation fund, it has the responsibility to make sure that people are adequately compensated from that fund. The $1 billion dollar limit doesn’t do that.
It’s easy to blame BP for actions that likely could have resulted from any big oil company’s actions. But the company does deserve blame for moving so slowly, for underestimating the extent of the damage, and for trying to shift blame to the contractor that actually operated the rig.(The legal contribution and indemnity issues here are fascinating in a perverse kind of way.) Yet one wouldn’t expect them to win a safety award after this — wait, they might? (The company is a finalist for this award. Apparently, just like baseball’s MVP award, this prize is given so far ahead of time that it can be embarrassing: players can win them even if they fail miserably in the playoffs, and BP could win based on its actions before this gusher started.)
It’s time for someone to stop this and tilt the playing field back towards level. Right now, oil is sitting its heavy butt on one end of the see-saw, and the Gulf Coast, the environment, and the rest of us are flying off the other end.