North Dakota's Maxims of Jurisprudence

A while back, I blogged about California's and Montana's maxims of jurisprudence. These are collections of statutes, or subsections of statutes, that set forth various maxims, canons of construction, or presumptions to aid in the interpretation and application of the law. Typically, the text accompanying the maxims notes that they are intended to aid in the just application of laws, and do not qualify any existing laws.

As a result of another weekend spent inside, I learned that North Dakota also has a statute setting forth a similar list of maxims. North Dakota Century Code § 31-11-05 sets forth North Dakota's maxims of jurisprudence:

The maxims of jurisprudence set forth in this section are not intended to qualify any of the provisions of the laws of this state, but to aid in their just application: 

1. When the reason of a rule ceases so should the rule itself. 

2. When the reason is the same the rule should be the same. 

3. A person must not change that person's purpose to the injury of another. 

4. Anyone may waive the advantage of a law intended solely for that person's benefit, but a law established for a public reason cannot be contravened by a private agreement. 

5. One must so use one's own rights as not to infringe upon the rights of another. 

6. One who consents to an act is not wronged by it. 

7. Acquiescence in error takes away the right of objecting to it. 

8. A person cannot take advantage of that person's own wrong. 

9. A person who fraudulently has dispossessed himself or herself of a thing may be treated as if the person still had possession. 

10. A person who can and does not forbid that which is done on that person's behalf is deemed to have bidden it. 

11. No one should suffer by the act of another. 

12. One who takes the benefit must bear the burden. 

13. One who grants a thing is presumed to grant also whatever is essential to its use. 

14. For every wrong there is a remedy. 

15. Between those who are equally in the right or equally in the wrong the law does not interpose. 

16. Between rights otherwise equal the earliest is preferred. 

17. No person is responsible for that which no person can control. 

18. The law helps the vigilant before those who sleep on their rights. 

19. The law respects form less than substance. 

20. That which ought to have been done is to be regarded as done in favor of one to whom and against one from whom performance is due. 

21. That which does not appear to exist is to be regarded as if it did not exist. 

22. The law never requires impossibilities. 

23. The law neither does nor requires idle acts. 

24. The law disregards trifles. 

25. Particular expressions qualify those which are general. 

26. Contemporaneous exposition is in general the best. 

27. The greater contains the less. 

28. Superfluity does not vitiate. 

29. That is certain which can be made certain. 

30. Time does not confirm a void act. 

31. The incident follows the principal, not the principal the incident. 

32. An interpretation which gives effect is preferred to one which makes void. 

33. Interpretation must be reasonable. 

34. When one of two innocent persons must suffer by the act of a third, the one by whose negligence it happened must be the sufferer.

North Dakota also has two other statutes (both accessible at the link above) which set forth conclusive and disputable presumptions. Section 31-11-03 is the list of forty disputable presumptions which contains several familiar concepts such as: "That a person is innocent of a crime or wrong" (subsection (1)); "That higher evidence would be adverse if inferior is produced" (subsection (6)); and "That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the tate or county where the book is published contains correct reports of such cases. (subsection (34)).  The list also contains some presumptions that the familiar reader will recognize from other states' lists of maxims of jurisprudence, such as: "That Private transactions have been fair and regular" (subsection (19)); "That things have happened according to the ordinary course of nature and the ordinary habits of life" (subsection (28)); That a thing once found to exist continues as long as is usual with things of that nature" (subsection (31)); and "That the law has been obeyed." (subsection 32)).

These maxims are virtually identical to most of California's maxims of jurisprudence, and are even listed in the same order.  There are some minor changes in the wording, primarily changes that make North Dakota's list gender neutral.  North Dakota's list overlaps with California Civil Code sections 3509 through 3543.  Missing from North Dakota's list are the following California sections:

3545. Private transactions are fair and regular.

3546. Things happen according to the ordinary course of nature and the ordinary habits of life.

3547. A thing continues to exist as long as is usual with things of that nature.

3548. The law has been obeyed.

As noted above, all of these missing maxims are included in North Dakota's list of forty disputable presumptions.

The statutes appear to be cited with relative frequency--often in cases involving equitable claims or defenses, such as equitable estoppel or the defense of unclean hands.  While a body of case law exists in support of these defenses, the statutes appear to provide a quick, go-to resource for a simple statement of the rule being applied. But as noted in the statute itself, the maxims have little independent force beyond that which is already set forth in statute or precedent.

Plaintiff Asks Court to Declare That Defendant is a "BULLY"

From this tweet by Keith Lee, I learned of this fascinating Complaint filed on Sunday in the New York County Supreme Court. Lee takes note of the first two paragraphs of the Complaint, which are admittedly colorful:

1. The date, September 7, 2017, is a date that shall live in infamy in Staten Island history. On September 7, 2017, the circus came to town. The Defendant, DENNIS W. QUIRK (“QUIRK”) in his individual and personal capacity exploded on the courthouse steps as part rabid-dog and part carnival-barker, in a dangerous, intentional, outrageous, and malicious manner. QUIRK caused serious, substantial, unconscionable, intentional, and malicious harm to the Plaintiff, MICHAEL J. PULIZOTTO (“PULIZOTTO”), in the center of the public square – the steps of the Richmond County Courthouse – all to advance QUIRK’s own personal and political agenda.

2. The date, September 7, 2017, shall always and hereafter be known as “THE DAY OF THE RAT” in Richmond County.

The Complaint goes on to allege that Quirk set up a large inflatable rat outside the parking lot of the courthouse in an effort to ridicule Pulizotto, among many other things. Notably, in Paragraph 2, Pulizotto does not only use "THE DAY OF THE RAT" as shorthand for future reference in the document (as he does with "QUIRK" and "PULIZOTTO"), but dramatically states that September 7, 2017 shall be known as "THE DAY OF THE RAT" in Richmond County. It is unlikely that the Court has the authority to make such a declaration (as such a declaration would likely be within the province of county authorities), but Pulizotto does not seek the labeling of that date in his prayer for relief.

While I found much of the Complaint entertaining, due to its length and excessive hyperbole, I was not able to read the entire thing. But as I skimmed through, these two paragraphs caused me to chuckle:

56. Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

57. QUIRK is a BULLY.

As it turns out, these two paragraphs end up being relevant to Pulizotto's causes of action, specifically, his cause of action for declaratory judgment. For those who need to brush up on their remedies, a declaratory judgment is: "A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court" which does not provide for enforcement.

What sort of declaratory judgment does Pulizotto seek?

AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF(DECLARATORY JUDGMENT)

181. Plaintiff, PULIZOTTO, repeats, realleges, and restates all paragraphs above as if fully set forth herein and further states as follows.

182. As specifically plead above, a bona fide, justiciable, and substantial controversy exists as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

183. The Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic] have adverse legal interests.

184. A judgment would serve a useful purpose in clarifying or settling the legal issues as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

185. There is a clear and ascertainable standard for the Court to rule on this issue, to wit: Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

186. A judgment would finalize the controversy and offer relief from uncertainty as to whether the Defendant, DENNIS W. QUIRK is a “BULLY”.

And in addition to the $25 million in compensatory and punitive damages that Pulizotto seeks in his Prayer for Relief, he also asks for:

G. a declaration that: “DENNIS W. QUIRK IS A BULLY.”;

 

Declaratory judgments may be used to stop litigation "bullies" from sending repetitive demand letters or making meritless threats of litigation, but this is the first instance of which I am aware in which a party has sought to use the remedy to give its name calling the force of law. While Quirk likely does not want to be called a "Bully," the "BULLY" label that Pulizotto seeks is of no legal consequence and bears no apparent relevance to the parties' legal relationship or rights, the Court will almost certainly refuse to grant Pulizotto the requested relief on this cause of action.

 

Pulizotto may well have strong, negative feelings toward Quirk, but incorporating such a petty and futile cause of action into his Complaint will likely do nothing but harm his credibility before the Court in future proceedings. This Complaint and its dramatic language therefore join the vast ranks of pleadings that are amusing, yet awful examples of how litigants should act.

[UPDATE, 10/18/2017]

Another no-no I just noticed in the drafting of the Complaint is that the Plaintiff repeatedly misspells his own name. I have updated the above quotes with [sic]'s so that readers do not accuse me of shoddy copying and pasting.

Volokh (and Dolinko's) Lost Maxims of Equity

Here's some informative Monday evening scholarship for those who are interested in learning more about remedies, equity, or life in general. My favorite maxim, which I try to include in every motion I write is "Equity delights in a good practical joke," although "Equity is crunchy on the outside, soft and chewy on the inside," is a close second.

For those interested in California's attempt at generating interesting maxims / fortune cookie sayings, check out this post on California's Maxims of Jurisprudence.

The Implications of the "Blurred Lines" Verdict for Weird Al Yankovic

The major intellectual property story of the spring has been a lawsuit by Marvin Gaye's estate against Pharrell Williams and Robin Thicke. A jury recently held that Thicke and Williams' song, "Blurred Lines," infringed on the copyright for Gaye's song, "Got to Give It Up." I have not been following the litigation very closely, and I do not have much analysis of my own to add regarding the litigation itself, but you can find additional analysis and criticism of the case and verdict here, here, here, here, and here.

While I am not a big fan of Pharell Williams or Robin Thicke, I am far more interested in the work of Weird Al Yankovic. Weird Al wrote an excellent parody of Williams' and Thicke's song, entitled "Word Crimes." Here it is:





While Weird Al made sure to get permission from Thicke and Williams to use their song as a basis for his parody, would Thicke and Williams' recent loss spell trouble for Weird Al?

Sherwin Siy thinks that Weird Al could potentially be affected by the "Blurred Lines" litigation. While the Gaye estate did not sue Weird Al in time to recover damages for copyright infringement, the estate may still be able to sue Weird Al to recover a share of his profits from the song. As Siy notes:

While awards of damages for copyright infringement are joint and several, awards of the infringers’ profits are only several. This means basically that each infringer is responsible for their own profits, and not anyone else. You can see how this works: though the Gaye estate was damaged a certain amount by everyone (here, let’s say, Pharrell, Thicke, and Yankovic) acting in concert, each of those three different people made a different amount of profit, separate attributable in part to their use of the song. 

So while it’s too late for the Gaye estate to recover damages from Weird Al (or, to be more accurate, they already have, in a way), they could still try to go after him for his profits on “Word Crimes,” to the extent that those profits can be attributed to his taking from “Got to Give It Up.” And giving Al Yankovic a reason to worry is just one more reason to be upset with this verdict.

So even though Weird Al was not involved in the original infringement suit, he may still face difficulties if the Gaye estate seeks to capitalize on its recent victory. But if that victory ends up getting appealed, perhaps Weird Al will be free to continue marketing his parody without disruption.

California Passes Law Prohibiting Non-Disparagement Clauses

So reports the LA Times:

Californians offering online opinions or reviews of businesses will have new legal protection under a bill signed Tuesday by Gov. Jerry Brown.

The measure by Assemblyman John A. Pérez (D-Los Angeles) aims to crack down on retailers seeking to stop negative online reviews by requiring consumers not to make negative public comments about the business.

Those requirements, known as non-disparagement clauses, are at times buried in the lengthy terms and conditions that some businesses ask customers to agree to before making a purchase. Pérez's measure makes such clauses illegal in most cases.

The bill is AB 2365. From the text of the bill:

SECTION 1. Section 1670.8 is added to the Civil Code, to read:

1670.8. (a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services. 

(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section. 

(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.

The bill goes on to include monetary penalties for businesses violating the law. These penalties take the form of statutory damages which could be recovered in any lawsuit filed by a consumer or by a government agency.

In a previous post, I highlighted an instance where a company engaged in oppressive use of its non-disparagement agreement. In light of the potential for companies to use these clauses to oppress customers and silence criticism, I think that this law is a good idea. Companies remain free to remove any disparaging remarks that are posted on their websites, and they remain free to pursue defamation cases, so there are still legal remedies available for companies that are facing significant harm caused by false criticism.

It will be interesting to see the effect of this bill on non-disparagement agreements throughout the country. I imagine that many companies that employ these clauses do so on their websites. These companies should probably remove those clauses from their online forms, since there is a significant chance that these forms will be signed by customers in California.

UPDATE: 9/12/2014

Eugene Volokh notes that subsection (a)(2) of the bill may prohibit a dangerous amount of conduct. Not only does that subsection prohibit the enforcement of a non-disparagement clause, it also states that businesses cannot "otherwise penalize a customer" from criticizing the business.

Volokh worries that this subsection could be construed to restrict businesses from refusing to do business with customers who make constant, disparaging remarks. And Volokh worries that this subsection could be construed to restrict defamation lawsuits against consumers' statements that are indeed defamatory.

I suspect that the most likely penalty businesses would seek to impose on customers would be liquidated damages that are stated in the non-disparagement clause. But these liquidated damages provisions would presumably be barred by the ban on enforcement of the non-disparagement clause -- a prohibition that is stated in subsection (a)(2) in addition to the broader, "otherwise penalize" statement.

While I think that courts would be hesitant to characterize filing a defamation lawsuit as "penalizing" a customer, Volokh is correct to point out that subsection (a)(2) of the law could have been more carefully drafted.

Montana's Maxims of Jurisprudence

Earlier in the summer, I blogged about California's Maxims of Jurisprudence. As I discussed in that earlier post, California's maxims were an interesting collection of maxims of equity, canons of statutory interpretation, and other quizzical bits of advice.

I recently noticed that the Thurgood Marshall Law Library took note of my blog post and asked whether any other states have similar maxims. A quick check reveals that Montana and Guam appear to have similar lists of maxims. In this post, I will focus on Montana's maxims of jurisprudence.

Montana's legislature has a fairly approachable interface for searching the State Code. You can find Title 1, Chapter 3 of the Code here, which contains links to the purpose and text of Montana's maxims of jurisprudence.

Montana Code Annotated 1-3-101 notes that the "maxims of jurisprudence set forth in part 2 of this chapter are intended not to qualify any of the other provisions of this code but to aid in their just application."

As for the text of the maxims themselves, I have reproduced the entire list below. They are all contained in Montana Code Annotated Title 1, Chapter 3, Part 2:

1-3-201. Obsolete reason, obsolete rule. When the reason of a rule ceases, so should the rule itself.

1-3-202. Same reason, same rule. Where the reason is the same, the rule should be the same.

1-3-203. Change in purpose. A person may not change the person's purpose to the injury of another.

1-3-204. Waiver of benefit of law. Any person may waive the advantage of a law intended solely for that person's benefit. A law established for a public reason cannot be contravened by a private agreement.

1-3-205. Limit on rights. A person shall so use that person's own rights as not to infringe upon the rights of another.

1-3-206. Consent. A person who consents to an act is not wronged by it.

1-3-207. Acquiescence. Acquiescence in error takes away the right of objecting to it.

1-3-208. Own wrong -- no advantage. A person may not take advantage of the person's own wrong.

1-3-209. Fraudulent dispossession. A person who has fraudulently dispossessed oneself of a thing may be treated as if the person still had possession.

1-3-210. Acts on one's behalf. A person who can and does not forbid that which is done on that person's behalf is considered to have authorized it.

1-3-211. Acts of others. No one should suffer for the act of another.

1-3-212. Benefit -- burden. A person who takes the benefit shall bear the burden.

1-3-213. Grant includes essentials. One who grants a thing is presumed to grant also whatever is essential to its use.

1-3-214. Wrong -- remedy. For every wrong there is a remedy.

1-3-215. Equal in right or wrong. Between those who are equally in the right or equally in the wrong, the law does not interpose.

1-3-216. Preference to earliest. Between rights otherwise equal, the earliest is preferred.

1-3-217. Beyond control. A person is not responsible for that which a person cannot control.

1-3-218. Vigilance. The law helps the vigilant before those who sleep on their rights.

1-3-219. Form and substance. The law respects form less than substance.

1-3-220. What ought to have been done. That which ought to have been done is to be regarded as done, in favor of a person to whom and against a person from whom performance is due.

1-3-221. Apparent nonexistence. That which does not appear to exist is to be regarded as if it did not exist.

1-3-222. Impossibilities. The law never requires impossibilities.

1-3-223. Idle acts. The law neither does nor requires idle acts.

1-3-224. Trifles. The law disregards trifles.

1-3-225. Particular versus general. Particular expressions qualify those which are general.

1-3-226. Preference for contemporaneity. Contemporaneous exposition is in general the best.

1-3-227. Smaller within larger. The greater contains the less.

1-3-228. Superfluity. Superfluity does not vitiate.

1-3-229. Certainty. That is certain which can be made certain.

1-3-230. Void act. Time does not confirm a void act.

1-3-231. Principal. The incident follows the principal and not the principal the incident.

1-3-232. Avoiding voidness. An interpretation which gives effect is preferred to one which makes void.

1-3-233. Reasonableness. Interpretation must be reasonable.

1-3-234. Third parties -- who suffers. When one of two innocent persons suffers by the act of a third, the person by whose negligence it happened must be the sufferer.

Like the California maxims of jurisprudence, the Montana maxims are a mixture of maxims of equity, canons of statutory construction, and other pieces of advice.

While there is considerable overlap between California's and Montana's maxims, I notice that some of California's most mysterious maxims ("3530. That which does not appear to exist is to be regarded as if it did not exist" ; "3547. A thing continues to exist as long as is usual with things of that nature") are not present in Montana's maxims. There is some overlap in mysterious maxims, however, on the "certainty" front, as Montana's quizzical 1-3-229 maxim ("That is certain which can be made certain.") is the same as California's maxim 3538.

Like the California maxims, Montana Code Annotated Title 1, Chapter 3, Part 1 precedes the text of the Montana maxims and notes that the maxims serve only to "aid the just application" of Montana's laws. A quick check of the notes of decisions, however, fails to uncover Montana case law as clear as that in California holding that the maxims of jurisprudence are of little use when the language of a statute is clear. 

Furthermore, it seems that some of Montana's maxims have been cited extensively. For intance, 1-3-281 -- the "vigilance" maxim -- has been frequently cited in cases that establish the existence of the defense of laches. In light of these frequent citation, and in the absence of strong case law disapproving of the maxims, it looks like Montana litigators who cite Montana's maxims may be taken a bit more seriously than California litigators who cite California's maxims.

These are just a few observations after my quick run-through of Montana's maxims of jurisprudence. Like the California maxims, Montana's maxims are an interesting insight into guiding principles for the interpretation and application of the law, and they can serve as a good starting point for those interested in learning more about canons of statutory construction and maxims of equity.

A 23.6 Billion Dollar Punitive Damages Verdict Against RJ Reynolds Tobacco Co.

The BBC reports:

A US court has ordered the country's second largest cigarette company to pay $23.6 billion (£13.8bn) to the wife of a smoker who died of lung cancer. 

RJ Reynolds Tobacco Company was hit with the punitive fine in addition to $16.8m (£9.8m) in compensatory damages.

. . .

The punitive damages awarded to . . . [the plaintiff, Cynthia] Robinson were said to be the largest of any individual case stemming from a class action lawsuit filed in Florida.

The Chicago Tribune also has an article on the verdict. Both outlets report that RJ Reynolds plans to appeal, and the Tribune notes that "[s]uch industry appeals are often successful."

RJ Reynolds will almost certainly succeed if it appeals the punitive damages award.

When juries return a verdict on damages, they may award compensatory damages, which serve to compensate the victim for harm suffered and make the plaintiff whole. Juries may also award punitive damages if they find that the defendant acted in a particularly egregious manner. Punitive damages serve to deter defendants from acting this way.

I have blogged previously on cases here and here, where juries have awarded punitive damages thousands of times higher than the compensatory damages. As I mentioned in those posts, the Supreme Court has strongly suggested that punitive damage awards that are more than ten times the amount of the compensatory damage award are unconstitutional violations of due process.

What about this case?

Here, the jury concluded that the plaintiffs were owed $16.8 million in compensatory damages as a result of the wrongful death. The $23.6 billion punitive damages verdict is roughly 1,400 times the compensatory damages that were awarded.

Given the vast disparity between the compensatory and punitive damages, it is highly likely that RJ Reynolds will succeed if it appeals the punitive damages award. While this award is indeed noteworthy, it is not going to be around for long.

UPDATE

Reuters quotes a number of legal experts in this article who also think that the punitive damages award is not likely to stand.

A Nine Billion Dollar Punitive Damages Verdict and Why it Won't Last

Some of my favorite shows are on late at night. As a result, I have seen a lot of commercials from law firms that solicit potential plaintiffs in drug-related injury cases. One commercial I saw the other night claimed that a plaintiff had received a 6 billion dollar verdict in a lawsuit against a drug company. I thought that this was misleading -- damages in that amount needed to have been given to a class of plaintiffs, right?

Turns out my instinctual reaction was wrong. The ad was referring to this 6 billion dollar verdict against Takeda Pharmaceuticals. The 6 billion dollar amount was a punitive damages award and was based on the company's apparent practices of covering up the risk of harms posed by one of its drugs. This verdict was accompanied by an additional 3 billion dollar punitive damages award against its marketing partner, Eli Lilly. In addition to punitive damages, the plaintiff was awarded 1.25 million in compensatory damages.

The Wall Street Journal Law Blog summarizes why these damages will probably be reduced:

But how likely is it that the companies will actually fork over that amount? Not very, say legal experts. 

“There’s no way that these [damages] will be $9 billion at the end of the day,” said Mark Lanier, the lawyer for the husband and wife who sued the companies. U.S. District Judge Rebecca Doherty, who is presiding over the case in Lafayette, La., “will do what she thinks is right,” he said. 

. . . 

Compensatory damages are meant to compensate a party for loss or injury. Punitive damages are meant to punish and deter. But the two must bear some relationship to one another, the U.S. Supreme Court has ruled. 

In the 2003 case State Farm Mutual Automobile Insurance Co. v. Campbell and the 1996 case BMW of North America Inc. v. Gore, the high court ruled that excessive punitive damages are unconstitutional. 

What is excessive? It depends on the size of the compensatory damages. Generally speaking, punitive damages that are more than nine times that of compensatory damages have a poor survival rate, the Supreme Court ruled. Put another way, the ratio of compensatory damages to punitive damages typically should be a single digit.

The punitive damages multiplier in this case is far larger than a single digit. With compensatory damages measuring in at 1.25 million, the punitive damages are 7,200 times that amount. That's even higher than the 5,000-to-one verdict that I blogged about here (which was also something I learned about due to late-night television shows).

While this case involves a notably high ratio that is almost certain to be overturned, I still think it is a little strange that the plaintiff's attorney said that there was "no way" that the verdict would stand. While the attorney is almost certainly correct, if I were a party involved in litigation, I would not want my attorney speaking out and saying that the verdict I'd just been awarded is certain to be reduced.

A Five-Thousand to One Punitive to Compensatory Damages Ratio

From Fox News' late-night show, Red Eye, I learned about the unpleasant story of James Caroll Butler, who attempted to spike his coworker's coffee with urine. The coworker, Michael Utz, fortunately did not drink the tainted coffee, and sued Butler for the emotional distress that Utz suffered as a result of Butler's actions.

In his lawsuit, Utz asked for quite a bit of money:

Utz, a plant mechanic for the town’s environmental services department since 2002, claimed that the urine-laced coffee pot caused him severe emotional distress, asking the court to award him $728,000 ($378,000 in compensatory damages and $350,000 punitive damages).

In the end, Utz did not get the hundreds of thousands of dollars he sought in his complaint. But the jury did end up awarding him $5,001. Why the extra dollar?

According to court records, the jury awarded Utz $1 in compensatory damages and $5,000 toward punitive damages.

As a bit of background for those unfamiliar with these remedies, compensatory damages are meant to make the plaintiff whole and repair harm done by the defendant. Punitive damages, on the other hand, are meant to deter the defendant from carrying out similar conduct in the future, and by awarding punitive damages, the jury expresses that the defendant's conduct was particularly reprehensible.

As loathsome as Butler's conduct was, if he were to appeal, I think that he would have a good chance at having those damages reduced. In State Farm Mut. Automobile Ins. Co. v. Campbell, the Supreme Court struck down an award of $25 million in punitive damages accompanying a reward of $1 million in compensatory damages. The Court stated:

[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. . . . We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. (citations omitted)

While the Court refused to state a solid rule, it heavily insinuated that a punitive damages award more than nine times the amount of  the compensatory damages would be struck down as a violation of due process.

Here, the jury awarded only one dollar in compensatory damages, meaning that the punitive damage award was five thousand times the compensatory award. While the jury may have wanted Butler to be punished (and while Butler was also convicted of misdemeanor criminal assault for his actions), the composition of the award clearly indicates that the jury thought that Utz suffered very little, but Butler's action was very bad.

I think that the jury could have awarded Utz substantial damages for emotional distress. But they didn't, and with a ratio like this, I could see this award being overturned if Butler is inclined to appeal -- though keeping this incident in the news may not be Butler's favorite outcome.

Rogers on Historic Legal Treatment of Hair

I came across an article entitled, Hair, by R. Vashon Rogers in The Green Bag. The citation is 16 Green Bag 326 (1904). I am unfortunately unable to find a publicly accessible version of this article, but here is a link to the Heinonline version.

In this article, Rogers surveys a broad range of historical treatment of hair. He discusses the taxation of beards in both England and Russia, noting that the English laws on taxing hair fell out of fashion and were ultimately deemed "too absurd to be enforced."

Offenses against others' hair could be the basis for civil liability. Rogers writes:

In Ireland, by the Brehon law, a heavy fine had to be paid by any one who maliciously shaved the false locks of a poet or of a scholar, or of a show girl, or who cut off the eye lashes, or the hair of the brow, or the beard or whiskers of a man.

Robbing a man of his beard, among the Saxons, according to Alfred's laws, was punishable by a fine of twenty shillings; he who shaved a priest against his will was mulcted in thirty shillings; while binding the ecclesiastic, as well as shaving him, raised the penalty to two pounds.

Rogers doesn't stop there. He goes on to summarize the importance of horses' hair, noting that the cutting of a horse's mane or tail would require compensation as well as the provision of a substitute animal while the injured horse was kept in hiding. The church took mixed positions on the length of women's hair, with some members of the clergy encouraging the cutting of hair as a symbol of chastity, and others criticizing Joan of Arc's choice to wear short hair as blasphemy.

Rogers concludes with an anecdote about Lord Mansfield:

Lord Mansfield tried a man for assault, he was convicted; the Court thought imprisonment an unsuitable punishment under the circumstances; an affidavit was produced in which the offender stated he was wholly unable to pay a pecuniary fine. While this was being read the man stood proudly erect, his face adorned with enormous whiskers and moustaches, the pride of his heart, his boast in his cups. Mr. Dunning, for the prosecution, suggested to the judge that "as the prisoner had very fine moustachios and whiskers, perhaps his lordship would take the punishment out of these, and order him at once to be shaved."

For a modern perspective on a different, hair-related legal issue, I would recommend Paul C. Giannelli's, Microscopic Hair Comparisons: A Cautionary Tale, 46 Crim. L. Bull. 7 (2010). From the abstract:

This article examines the judicial history of microscopic hair analysis, including its role in several wrongful convictions. It discusses the misuse and the abuse of hair evidence, and the failure to establish an empirical basis for the technique. In sum, hair evidence provides a cautionary tale for other forensic techniques.

French Plaintiffs Win Symbolic Damages for Distress Caused by Michael Jackson's Death

Via Kevin Underhill at Lowering the Bar, I learned about a lawsuit that French plaintiffs filed against Conrad Murray, Michael Jackson's doctor, who had been convicted of involuntary manslaughter following Jackson's death by anesthesia overdose. The BBC reports:

Five Michael Jackson fans have been awarded one euro each by a French court for the "emotional damage" they suffered after the pop star's death. 

The case saw 34 fans sue Jackson's doctor, who was jailed in 2011 for the involuntary manslaughter of the singer. 

The court in Orleans ruled five fans had proven emotional suffering. 

. . . 

"As far as I know this is the first time in the world that the notion of emotional damage in connection with a pop star has been recognised," Emmanuel Ludot told the AFP news agency. 

"They have been subjected to ridicule and I am delighted their suffering has been taken seriously by the law."

Underhill points out that this sort of lawsuit would fail in the United States:

Under U.S. law . . . damages for emotional distress are generally limited either to the injured party or, in some states, to family members who actually witnessed harm to a loved one. So you couldn't, for example, bring a class action on behalf of all similarly situated Elvis fans, which the guy who sent me this said was his plan. Even setting aside the statute-of-limitations issue, you still couldn't do it. In France, this is apparently okay.

I have not been able to locate many details on the court's reasoning, so I am not sure if this sort of broad approach to emotional distress is commonplace in France.

Lawsuit Against NASA Asks Court to Order 100 Photos of Unusual Mars Rock

NASA's Mars rover, Opportunity, recently spotted a strange rock that had not appeared in a previous photograph of the same area. Some observers opine that the rock looks like a "jelly donut."

Other observers have different opinions. Ars Technica reports:

While most NASA scientists chalked it up to a curiosity and nothing more, one California man has decided that this explanation was not enough. On Monday, Rhawn Joseph, a self-described “astrobiologist” filed a writ of mandamus against NASA. In his 11-page brief, he accused NASA of a “dereliction of duty,” and wants to compel the agency to take “100 high-resolution photographs” of the rock in question.

. . .

Joseph further argues that he “immediately recognized” the rock for what NASA officials apparently could not: a “mushroom-like fungus, a composite organism consisting of colonies of lichen and cyanobacteria, and which on Earth is known as Apothecium.”

A copy of Joseph's writ is available here. I recommend it highly. Here is a sample of some of its strongly worded language that also details some of Joseph's efforts before his filing:

[A]lthough the rover Opportunity is equipped with a "microscopic imager” no microscopic investigation was under taken and no microscopic pictures released. Any legitimate scientist would have taken hundreds of close-up and microscopic pictures from every angle. Inexplicably NASA and its rover team not only failed to take close up photos they refused even after John Callas, Steven Squyres, Charles Bolden and other NASA administrators at NASA headquarter [sic] were contacted by this Petitioner and supplied evidence that this was a biological organism which had germinated on that rock and grew into a larger organism after 12 Martian days had passed

Joseph has written more on the Mars rock. He has an article on the (peer reviewed?) website, Cosmology.com, where he writes about his investigation of the rock (or fungus) photos. Here is the abstract:

An analysis of photos taken of the Martian surface by the NASA rover Opportunity, 12 Martian days apart and released to the public in January 2014, reveals evidence of biological activity. In photo Sol 3528, a small "bowl-shaped" growth appears on a Martian rock outcropping. When photos were taken of the same outcrop on Sol 3540 (12 Martian days later), the small bowl-shaped structure had become a fully grown bowl-shaped organism resembling Apothecia. What appears to be spore-producing "paraphyses" can be observed on the structure, as is apparent upon magnification and which is typical of Apothecia. Apothecia are composite organisms, a mixture of fungus and cyanobacteria. The lack of any debris field or disturbance of Martian soil or small stones in the immediate vicinity of the structure rules out meteor or a rock which was displaced from another location.

It will be fun to see how this lawsuit progresses. I look forward to reading additional motions and papers by Rhawn Joseph.

Mitigating Damage to Digital Reputations

The BBC reports that Steps singer, Ian "H" Watkins is "furious" after Google's links to news stories apparently placed his photograph next to stories about a different Ian Watkins -- who is a convicted pedophile:

Google's algorithm appeared to be unable to differentiate between the two cases, taking a picture - from a BBC News article about the E! apology - and pairing it with a separate article by CBS News about the abuse. 

A Google spokesman added: "For some specific searches Ian H Watkins' picture is appearing in our results because he is relevant to the story, having received a court apology.

Watkins (I use this name to refer to Ian "H" Watkins unless I specify otherwise) reacted angrily to the news, posting this image of the offending search results on Twitter, and telling CBS News to "SORT THIS OUT":

Watkins received a court apology from E! Entertainment Television, who apparently ran his image with the story about the convicted pedophile, but it sounds like Watkins is still seeking some sort of remedy from Google.

In the United States, this type of claim against Google would probably be barred by section 230 of the Communications Decency Act.  If Watkins's photo appeared on a Google search result because the result linked to a news story that ran his photo with the story of the convicted pedophile, Google would not be treated as having published that photo because it was a third party who shared that photo online.  Under section 230, websites are typically immune from lawsuits arising from content that is posted on websites by third parties.  Google could argue that it is simply linking to a third-party's content, and the image posted by the author of that content.  Watkins may well have a successful claim against the news agency, though, and it sounds like he has already succeeded on some level with E!  But Watkins would probably not succeed against Google.

But even if Watkins were doomed to fail, he would do well to file the lawsuit anyway.  Today, in the aftermath of Watkins's lawyers approaching Google, a Google search of "Ian H Watkins" reveals these results:

Pretty much every result has to do with Watkins's complaint against Google (with the exception of the bearded man on the right -- who is the similarly-named convicted pedophile).  The overwhelming impression one gets from these results is that Google messed up and Watkins is calling them out.  Quite the opposite of an impression of Watkins being convicted of anything.

Even if Watkins takes no official legal action against Google, simply having his lawyers approach Google and claim damage is enough to focus the news on Google's mistake, rather than on news stories' mistaken identifications.

Non-Disparagement Agreements

Andrew Crocker and Kurt Opshal of The Electronic Frontier Foundation write about a horror story arising from a customer's signing a "non-disparagement agreement."  The customer, Jen Palmer, tried to purchase an item from KlearGear, but the item was never shipped to her.  After receiving a refund, but running into trouble trying to contact the company's customer service representative, she gave a negative review of the product on Ripoffreview.com.

KlearGear wrote to Palmer three years (!) later and demanded $3,500 based on her violation of a non-disparagement clause she had signed when she had tried to purchase the item.  That clause stated:

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees. 

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

Palmer was unable to pay the fee to remove the comment and was unable to pay the $3,500 demand, and ran into credit problems as a result.

The EFF reports on a number of inconsistencies with KlearGear's claim, including the question of whether this clause had even existed when Palmer had made her purchase.  The EFF also argues that the non-disparagement agreement is unconscionable, noting that consumers typically do not have any say in the provisions of purchase agreements and that the language in these agreements tends to confer substantial privileges to the seller over the consumer.

I am inclined to agree that the non-disparagement provision is unconscionable.  While I don't think that any First Amendment claims can be made here, the vast asymmetry in the agreement and the likely inability of consumers to negotiate the agreement are problematic.  Moreover, the $3,500 payout is all but guaranteed, since the payout is required upfront, and will cover litigation fees that KlearGear ends up paying, even if any defamation suit it files ends up being groundless.

And as a final note on the issue, the non-disparagement clause avenue for punishing critics appears to be a way around insurance protection that many defendants may have in typical libel cases.  Eugene Volokh notes that many standard homeowner's insurance agreements have clauses that guarantee payouts for damages paid out in a libel suit, or costs incurred in defending against such a suit.  He provides an example of one such claim:

If a claim is made or a suit is brought against any insured for damages because of bodily injury … caused by an occurrence to which this coverage applies, we will: 

1. pay up to our limit of liability for the damages for which the insured is legally liable; and 

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent…. 

POLICY DEFINITIONS …. 

“Bodily injury” means; … personal injury … arising out of … libel, slander or defamation of character; or … invasion of privacy.

A non-disparagement claim along the lines of the KlearGear agreement looks like a contract claim, and not a claim for "damages because of bodily injury," which seems to be restricted to tort claims.  And even if KlearGear were to successfully sue Palmer, such an insurance policy would cover the damages she would need to pay in that lawsuit, but not the contractually-required money she would need to pay for KlearGear's costs.

Alienation of Affections in Illinois: Strategy, Reform, and Unintended Consequences

My last post had me thinking about Illinois and mistakes, and this reminded me that Illinois is one of several states that recognizes the tort of alienation of affections.

I learned about this tort during my first year of law school in Eugene Volokh's torts class.  In one of his older Volokh Conspiracy posts, he lays out the elements of the tort and the situations that most commonly give rise to alienation of affections lawsuits:

Alienation of affections basically consists of a defendant's (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff's spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child's best interest such behavior might not be "wrongful." In practice, it has generally been applied to people who supposedly seduce away one spouse from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant's attentions). The related tort of criminal conversation basically consists of a defendant's having adulterous sex with plaintiff's spouse, though of course such conduct may also often lead to an alienation of affections claim. [I have corrected some punctuation discrepancies that appear to have been caused by the post's older coding.]

As Volokh goes on to note, the tort is still around in a number of states, including Illinois.  People continue to file alienation of affections lawsuits, indicating that the tort -- while seemingly archaic -- is far from dead.  Also at the Volokh Conspiracy, David Bernstein posts on why he teaches this tort in his torts class.

Illinois's formulation of the tort differs slightly from Volokh's description of the general elements, as no "wrongful" act by the defendant is required (meaning that meddling in-laws had better beware).  As the Illinois court of appeals stated in Orbeta v. Gomez, 733 N.E.2d 1287, 1289 (Ill. Ct. App. 2000):

A cause of action for alienation of affections consists of three elements: (1) love and affection of the alienated spouse for the plaintiff; (2) actual damages incurred by the plaintiff; and (3) overt acts, conduct, or enticement on the part of the defendant causing those affections to depart.

While Illinois is one of the states that allows parties to file alienation of affections lawsuits, the state has limited the scope of damages that plaintiffs can claim in such suits.  The Alienation of Affections Act (codified at 740 ILCS 5/1) bars punitive and aggravated damages in alienation of affections lawsuits and also states:

In determining the damages to be allowed in any action for alienation of affections, none of the following elements shall be considered: the wealth or position of defendant or the defendant's prospects of wealth or position; mental anguish suffered by plaintiff; any injury to plaintiff's feelings; shame, humiliation, sorrow or mortification suffered by plaintiff; defamation or injury to the good name or character of plaintiff or his or her spouse resulting from the alienation of affections complained of; or dishonor to plaintiff's family resulting from the alienation of affections. 

Despite this limitation, plaintiffs can still seek actual damages, and the tort lives on as a strategic option for those who are interested in aggressive divorce litigation.  Illinoisdivorce.com explains that while an alienation of affection suit may not result in a large monetary award, the lawsuit can still be used to wreak havoc on the life of an ex-spouse (I apologize for any offense caused by the source's overgeneralizations about gender):