Archive for the ‘torts’ Category

National Legal Panel at Equality Forum: Opening Wide for a Fire Hose of Information

April 29th, 2010 No comments

Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?

If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).

Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.

Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed.  There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).

During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.

“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.

In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed,  and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”

James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.

He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).

Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.

Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.

One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community.  That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.

She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.

There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).

I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?

Projecting A Cyber Snowball from my Laptop

February 25th, 2010 1 comment
A useful spell in the tub.

A useful spell in the tub.

Just a few short minutes ago, as the snow began to really pile up and the wind to howl, I hit “send” on the manuscript my seven co-authors and I have been working on for what seems like a decade. (In fact, the project began with a symposium almost two years ago; we signed with Cambridge almost a year ago; and the chapters began coming in by this Fall). I’m the editor of the volume, with all of the great and challenging tasks that position commands. So what is this book, and when will you be able to find it at a bookstore near you? Thanks for asking.

The book takes some of the most red-hot, and polarized issues on the political landscape and puts them through a public health, population-based wringer. The topics are: reproductive (abortion) rights; end of life matters; marriage equality (my chapter); the persistent connection between racism and health disparities; gun violence; domestic violence; and tort law and reform. How might these questions and issues be illuminated by looking at them from a perspective that didn’t focus so much on rights and morality, but on the health and welfare of the population? Through some cosmic stroke of good fortune, I managed to convince some of the very brightest and most thoughtful legal and public health scholars to participate, and editing the book was a special privilege (albeit an exhausting and occasionally frustrating one, as when documents wouldn’t do what they were requested, then commanded, to do. I hate Word but that’s another issue entirely.)

I’m guessing at this point that the book will be out later this year, but it’s a bit early to say for sure. But now I can say with confidence that it’s going to happen. (Now where did I put that Grand Marnier?)

I’ll be shamelessly flogging the book in the months to come. What is its title, you might wonder? Well, that’s the one thing I’m not crazy about — it has a tentative title that can still be changed. I’ve been wracking my brain, but for some reason the perfect title yet eludes me (and all of us). Any ideas, readers? Please? A valuable prize to be named later awaits whoever can bring me to my feet in an Archimedes-inspired exclamation. (Archimedes might never have actually yelled “Eureka!” — but I will.)

U.S. Government: Compensate Katrina Victims

November 21st, 2009 1 comment

The recent news that a federal judge has ruled the U.S. Army Corps of Engineers, and by extension, the U.S. Government, liable for at least some of the preventable disasters associated with Hurricane Katrina should lead the government to do what it should have done long ago: Provide generous, long-tail assistance to help the residents of New Orleans get back on their feet.

To see why, just take a moment to compare what “we’ve” done for victims of another disaster: September 11. In that case, the Victim Compensation Fund was created to pay not even the survivors of that horrific event, but their families — in some cases, to the tune of millions of dollars. In all, the Fund spent just under seven billion dollars in taxpayer money for an event that the government was not responsible for.

With respect for the victims of that tragedy, I argued against such lavish compensation here and here. Part of the motivation was to avoid potentially crushing liability against  the airlines for their dismal security procedures,1 but that would have better been done through a direct bailout of those industries. Wait! We’d never bail out a failing company.

By contrast, the government awarded only the minimal payments available under federal disaster relief to Katrina’s victims, despite documented negligence (or worse) on the part of state, local, and federal government. And  the federal government, rather than defend the suits against them on the merits, has raised every possible procedural argument. First, they argued that they couldn’t be responsible for the flood-induced breaches of levees that the Corps had built or maintained, because of the Flood Control Act of 1928. That Act does clearly provide governmental immunity in connection with flood control projects, so the court held that the statute barred some of the claims.

Other claims, though, were based on acts of shocking negligence in connection with the maintenance of the White Elephant known as the Mississippi  River-Gulf Outlet (MR-GO), a navigation short-cut from New Orleans to the Gulf of Mexico. Here is a good summary of the allegations of negligence,  which were accepted by the court after a long trial:

The claimants alleged the government failed to properly design, construct, operate and maintain the MRGO, a 76-mile man-made ship navigation channel that connects the Gulf of Mexico to the Port of New Orleans Inner Harbor Navigation Canal. The claimants further alleged that the design of the MRGO (with the surface width being wider than the bottom width), along with the inevitable widening that would occur from waves in the channel, allowed the MRGO to act as a “funnel” for the Hurricane Katrina storm surge. Additionally, the salt water that was allowed to enter the MRGO from the Gulf allegedly killed off the storm-slowing plants and vegetation, further contributing to the “funnel” effect for the storm surge.

Since MR-GO isn’t a flood control project, the immunity probably doesn’t apply. But because of where MR-GO is situated relative to the damaged and destroyed neighborhoods, only residents in the Lower Ninth Ward and St. Bernard Parish were able to recover. Others are out of luck.

The government is considering an appeal. If one is filed, the brief would likely argue that the more general immunity under the Federal Tort Claims Act protects them. Interpreting and applying that immunity is challenging (for reasons that would numb any and all non-lawyers, and many lawyers as well), but my guess is that the judge’s opinion on that issue would stand.

The Government is likely afraid of the many millions of dollars it might have to pay out once others join the suit. But anyone who hasn’t already filed is barred by the statute of limitations. So the total payout that would be required isn’t clear; and in any event almost surely wouldn’t approach the amount paid out for 9/11.

Here’s a radical idea, government lawyers (Obama Administration): Settle the case! Offer structured payments. Set up enterprise zones and incentives for loans to start-up businesses. Build homes for people.  Rebuild the private medical and public health infrastructure. Such initiatives are long overdue. I have mixed feelings about tort liability against the government in any case, but surely some kind of considered, carefully designed compensation has by now become a national imperative. It won’t erase this national disgrace from our history — nothing can, or should — but it would be a compelling show of compassion.

  1. So now we have to divide our personal hygiene products into small bottles in order to board a plane.

Empathy and Activism: A Look at Senator Cornyn’s Own Judicial Record

July 16th, 2009 No comments

During the Sotomayor hearings, Sen. John Cornyn of Texas has been among the most aggressive questioners. He seems particularly overwrought about the nominee’s statements that her experience as a Latina would somehow affect, or even improve, her decision-making. (Of course, the would-be justice has run as far from those comments as possible.) He and other conservatives also worry about “activist judges” who “legislate from the bench.” It’s amazing he can express these concerns without blushing.

As I noted when this issue broke, there are several ways to interpret the “wise Latina” comment. The most benign is that all of us are a product of our environment and experience; our empathy should be for all litigants, but we’re not, and shouldn’t pretend to be, robots. (That said, Sotomayor’s performance so far has been that of Automaton Lawyer.)

Cornyn, though, is having none of this; empathy isn’t and shouldn’t be part of decision-making. NY Times columnist Maureen Dowd is at her skewering best in yesterday’s take on the Republican Legion of (White) Super-Attackers. Smashing the tennis ball with deadly accuracy, she nails every line and corner of the court:

“A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.

“After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that.

“[P]resident Obama wants Sotomayor, naturally, to bring a fresh perspective to the court. It was a disgrace that W. appointed two white men to a court stocked with white men. And Sotomayor made it clear that she provides some spicy seasoning to a bench when she said in a speech: ‘I simply do not know exactly what the difference will be in my judging, but I accept there will be some based on gender and my Latina heritage.’

“Republican Lindsey Graham read Sotomayor some anonymous comments made by lawyers about her, complaining that she was “temperamental,” “nasty,” “a bit of a bully.” Then he patronizingly lectured her about how this was the moment for “self-reflection.” Maybe Graham thinks Nino Scalia has those traits covered.

“But the barbed adjectives didn’t match the muted performance on display before the Judiciary Committee. Like the president who picked her, Sotomayor has been a model of professorial rationality. Besides, it’s delicious watching Republicans go after Democrats for being too emotional and irrational given the G.O.P. shame spiral.

“W. and Dick Cheney made all their bad decisions about Iraq, W.M.D.’s, domestic surveillance, torture, rendition and secret hit squads from the gut, based on false intuitions, fear, paranoia and revenge.

“Sarah Palin is the definition of irrational, a volatile and scattered country-music queen without the music. Her Republican fans defend her lack of application and intellect, happy to settle for her emotional electricity.

“Senator Graham said Sotomayor would be confirmed unless she had ‘a meltdown’ — a word applied mostly to women and toddlers until Mark Sanford proudly took ownership of it when he was judged about the wisdom of his Latina woman.

“And then there’s the Supreme Court, of course, which gave up its claim to rational neutrality when the justices appointed by Republican presidents — including Bush Sr. — ignored what was fair to make a sentimental choice and throw the 2000 election to W.

“Faced with that warped case of supreme empathy, no wonder Sotomayor is so eager to follow the law.”


Cornyn’s own record as a Texas Supreme Court Justice reveals a similar “supreme empathy” — to insurance companies. In the area of tort law, he consistently sided with majorities that eviscerated long-standing rules and principles, consistently to the advantage of defendant businesses and the insurance companies that ultimately would have had to account for the losses.

These decisions, often by the barest of majorities, were not in cases that any other state supreme court would have agreed with. In the 1992 case of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), Cornyn and three other justices held that a supermarket wasn’t necessarily liable for a slippery condition that its own employee had created. Maybe the employee didn’t know the spray he’d used had landed on the floor. The flabbergasted dissenters pointed out that the majority’s decision, in addition to being at odds with settled and uncontroversial law in Texas as well as everywhere else, effectively told employees and store owners to “look the other way.”

The majority also tripped the plaintiff up on a procedural error, one that the dissent noted was now applied only to those bringing suit, not to those defending: “Today the court… extends a dual standard of justice–an easy requirement for defendants, an inexplicably strict one for plaintiffs.” (Mauzy, J., dissenting)

This willingness to use arcane procedural rules to defeat claims sometimes meant that valid cases never got a hearing. In the inexplicable H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex. 1992), Cornyn wrote only for himself (but as the majority because of an oddity of Texas law) in tossing out a case involving a woman who’d slipped and been injured allegedly because of an ill-conceived “bag your own chicken”1 promotion. Despite the clear description of the dangerous condition set forth in the complaint, then Justice Cornyn found that it hadn’t provided legally sufficient notice of the problem. I leave to the law-curious among you the details, but this telling comment from the dissent bears quoting:

“”The majority opinion defies modern rules of pleading, which require only that a plaintiff put the defendant on notice of the claim. [This] retrograde analysis runs counter…to modern tenets of procedure….”

Empathy for insurance companies and judicial activism: Not just for leftists, apparently. Cornyn’s decisions spawned dissents that were downright angry and accusatory. Here’s a good place to finish, again stemming from a pro-insurance decision by a Cornyn-led majority:

“When an unequivocal constitutional command and  concern for the insurance industry collide in this Court, the outcome is no longer in doubt. [T]oday’s decision is but one example of the court’s recent indifference to precedent and its commitment to wholesale revision of Texas law.” (Doggett, J., dissenting)

  1. Ick.

March (of Commerce) Madness!

July 4th, 2009 No comments

In a class action lawsuit recently filed, and reported in today’s New York Times, NCAA football and basketball players are seeking damages against Electronic Arts, a company that creates video games using their likenesses.

Such lawsuits have been recognized at least since the 1950’s, when a federal appellate court in New York wrote:

“[A] man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture….[T]his right might be called a ‘right of publicity.’ For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways.”1

The revenue today, of course, isn’t so much in printed media, but in video games. Both the pervasively unethical NCAA and Electronic Arts know exactly what they are doing; they are in cahoots in this latest effort to deprive college athletes of any of the obscene amounts of revenue that college sports generates.

The NCAA called the complaints meritless.  Of course they did. Sooner or later, this whole edifice of exploitation is going to implode (likely via judicial action), and the NCAA has a self-preserving interest in delaying that day of reckoning.

As for Electronic Arts: The company also sells games depicting professional athletes, with only one, fig-leaf difference between the two sets of games:  The professional games have names attached, while the college games do not. Don’t worry: You can go to another site, pull up the names, and then link  them — permanently — to the Electronic Arts athletes. This reminds me of the way gun sellers were able to avoid the ban on semi-automatic weapons by selling them in pieces, for easy assembly by mail-order purchasers. (I’m serious.)

If there weren’t so much money involved, and such complicity in the exploitation of valuable labor, this would have ended a long time ago. My  belief that a court will need to take action stems from the reality that Congress is unlikely to stand against this kind of monied special  interest group. Perhaps a just verdict in this case will be the first step towards financial fairness to these athletes.

  1. Haelan Laboratories,  Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953).

Sex-Deprived Kenyan v. Lysistrata’s Daughters, NGO

May 9th, 2009 1 comment

I find myself unduly interested in the sex life of a Kenyan man.

A while ago, I compared the political courage of Liberian women to the moxie shown by Lysistrata and company. Lysistrata, a creation of the comic playwright Aristophanes, was an Athenian woman who led her Greek sisters in a sex boycott until the men stopped their childish and destructive Peloponnesian War. The brave women of Liberia didn’t withhold sex (any more than usual, I guess) but put themselves in harm’s way to make their point.

But the comparison I drew pales beside the real thing: Since I posted that story, Kenyan women were urged to follow Lysistrata more literally — by withholding sex. The difference is that the scales are now balanced by a different concern on the other side; the increasingly fractured coalition government in Kenya. How riveting! If women are going to withhold sex because political parties can’t get along, expect an immediate and permanent decline in the U.S. population.

Perhaps in recognition of the stakes’ being less dramatic than those raised by the Peloponnesian War, the women’s groups organizing this “boy”cott called only for a one-week moratorium on the conjugal act. As far as I know, the groups issued no detailed regulations as to what counted as forbidden sex for purposes of satisfying the moratorium. Former President Clinton could have driven a truck, inter alia, through that lack of precision.

Apparently, though, even that ill-defined, short-duration prohibition was enough to drive one James Kimondo into a litigious frenzy (and perhaps other frenzies). According to this story, he has now filed what would once have been called, at least in the U.S., an “alienation of affections” claim against an entity called the G-10, a sort of collective that houses a group of women’s activist groups. His lawyer said that the suit alleges that the ban “resulted in stress, mental anguish, backaches and lack of sleep.” (Backaches?)

The tort of alienation of affections is mostly a relic today. Its gist is that a third party’s meddling caused a husband (always a husband, of course) to lose the “affection” (sex, mostly) of his wife. It didn’t require adultery, because the idea, to quote Norma Rae, was that the intruder was “in [her] ha-id “(“head,” in Standard English). The tort has little traction in our age and culture, where women are believed to be “people” —  capable of deciding for themselves, thank you, whether to alienate themselves from their husbands. Along the same lines, sort of, men are no longer allowed to rape their wives, either. Male privilege has waned as female autonomy has waxed.

Speaking of waxing (or its absence), Kimondo’s lawyer must believe that his client’s inability to obtain such waxing for his naughty bits still has some legal merit in Kenya. Maybe it does, which would thereby suggest that women have yet to gain the same status there as here — the activists overcame his wife’s fragile will, poor thing. They are to blame, not her. This position is inherently unstable, though, because it changes the alienation of affections narrative to render it self-contradictory. The tort only works if men are the ones o’erbearing frail female will, not if it’s a sister-to-sister thing. Then, who’s empowered as between this woman and these activists? Who can say?

Naturally, I’d like the case to proceed so we can learn about the couple’s sex life, which Kimondo has decided he’s willing to put on display for a possible payday. And how big a bonanza is possible, really, from a week’s worth of missed sex? Admit it — by now you want the details, too.


February 20th, 2009 No comments


This was the simple but powerful reaction of an old friend when I described the effort to overthrow California’s guarantee of marriage equality through Proposition 8.

After almost twenty years, Annie and I saw each other this past summer at the funeral service of one of the fathers of a group of childhood friends, an assortment of families brought together by competitive swimming but soon to be as closely knit as cousins.  We were sitting at a large round table with my sister and a few of her (many) siblings, sharing a few drinks and catching up.

Like many busy people not directly affected by the marriage equality movement, Annie hadn’t really kept up on what was going on. But she was surprised and appalled at the effort to take away a right that people were already (and finally!) able to enjoy. Her monosyllabic response was eventually articulated more fully, and in just the way I had taken the original reaction: Is it really so important to devote all of this time, and all of these resources, into stopping this movement? People just want to be treated with dignity. Can’t you just leave it alone, at long last?

I was reminded of this conversation after writing yesterday’s post, in which I criticized Kris Mineau of the Massachusetts Family Institute for his nasty remarks directed at the soon-to-be-divorced Goodridges. (Earlier, if this website is accurate, he had called for civility in the way that “both sides need to conduct themselves.” That didn’t last long.) He was unable to resist mentioning the “pain” that the Goodridges had caused through their efforts to gain simple equality.

I’m sorry, but to paraphrase Carly Simon (and to date myself hopelessly), I haven’t got time for that pain. Here’s the pain that Annie and many others see, even if they’re not focusing on it as relentlessly as some of us do: the pain of not being able to describe your life to fellow soldiers, and of needing to hide your relationship from them; the pain of not being able to sponsor your spouse (in all but name) into the country; the economic pain that results from the denial of benefits that married couples take for granted; the pain of not being able to see your loved one in a hospital, or not without needless extra drama; the pain of having your intimate life together negated during life (no claim for loss of consortium) and after death (denial of death benefits, inability to take under the laws of intestacy, lack of standing to sue in wrongful death); the pain of families denied the legal vocabulary of family; and, worst, the pain and humiliation of subordination and second-class citizenship.

Even after all this time, I continue to be amazed that this pain — real, quantifiable, and constant — is ignored, especially by many of those who argue from a religious perspective. If they might not be expected to support us, are there no other causes more worthy of their time and attention? How might the human condition have been improved by now if the energy devoted to the King Canute-like effort to hold back the tide of marriage equality had been dedicated to the amelioration of local, national, and global ills?