An Offer You Almost Certainly CAN Refuse

So, I am working on a draft of an article that bears the (tentative) title “Diffusion Patterns in Tort Law, or What We Can Learn from Holdouts.” I think the piece has coalesced sufficiently that it would benefit from some comments from people who are smarter than me, which is pretty much anyone and everyone.

So, this proposal. If you (1) are a lawyer, or law student; (2) think that the paper sounds interesting (spoiler alert: it isn’t); and (3) would be prepared to read it and provide me with some comments, for each set of comments that I receive and incorporate, even just a tiny bit, into the paper, I will not only mention you in the acknowledgements (if you’d like), but also donate $20 to one of two charities, Inyo/Mono County Animal Resources and Education (which works to find homes and provide medical treatment for animals in the Eastern Sierra region of California), or Peaceful Valley Donkey Rescue (the name says it all). I’m prepared to donate up to $100 to each charity.

If there are any takers out there, please e-mail me (my e-mail address is on the right-hand side of the blog) and I’ll send you the current working draft.

The Law Review Equivalent of “Telephone”

The Contours of Curtilage

By Kyle Graham

 The Supreme Court’s opinion Florida v. Jardines has left some unanswered questions.

A Left Turn in Criminal Procedure?

By Amanda Harken

Scholars have observed that the Supreme Court’s recent criminal procedure jurisprudence has created more questions than answers.1

1 See Kyle Graham, The Contours of Curtilage, 45 Alaska L. Rev. 923, 947 (2013).

The Roberts Court: Unwept, Unloved

By Amit Chandrasekaran

The Supreme Court’s recent criminal procedure decisions have come under fire from academics.

1 See Amanda Harken, A Left Turn in Criminal Procedure?, 38 S. Ariz. L. Rev. 21, 24 (2013).

Academics vs. The Court: Round 1000

By Justin Sandefurd

Academics have taken an unremittingly hostile stance toward the Court, and in particular, toward its criminal procedure jurisprudence. 1

1 See Amit Chandrasekaran, The Roberts Court: Unwept, Unloved, 40 Cardon L.J. 234, 244 (2013).


Handicapping the Possible Purchasers of SCOTUSblog

With rumors circulating that SCOTUSblog may be up for sale, thoughts of course turn to some of the prospective purchasers:

The New York Times:

Pros: Would confer much-needed legitimacy upon NYT’s coverage of the Court

Cons: Already dreading the inevitable Chuck Klosterman 10,000-word essay that analogizes the Court’s most recent ERISA decision to the Billy Joel album 52nd Street, Pete Maravich, and Season Four of “The Real World”

Odds: 25-1

The Federal Government:

Pros: Repeat player before Court; could anticipate likely rulings by monitoring justices’ visits to site

Cons: Poor recent track record in operating websites

Odds: 10-1

Michael Bloomberg:

Pros: Presently in need of a job; already sponsors the blog

Cons: Likely to do something crazy and paternalistic, like ban all use of adverbs on the site; unclear how cert petitions would look when projected across a six-screen Bloomberg Terminal

Odds: 5-1

Mary Pat Dwyer:

Pros: Undoubtedly sick of getting stuck with SCOTUSblog’s crummy “Petitions” beat; purchase may offer a chance to move up to Immigration commentary, at least

Cons: Kevin Johnson is surprisingly tough and will only give up the Immigration beat when they pry it from his cold, dead hands; Dwyer, though talented, still only a third-year student at Duke, and probably thinking to hell with the law and checking out the MBA program at Kellogg instead

Odds: 150-1

The Volokh Conspiracy:

Pros: Acquisition, then liquidation would eliminate a significant competitor for law-blog traffic; strategy consistent with basic tenets of ruthless capitalism

Cons: Threat of insurrection by Volokh / SCOTUSblog cross-bloggers Kerr and Baude; unclear if SCOTUSblog can be stripped for parts

Odds: 40-1

The Harvard Law Review:

Pros: They’ve apparently got all that BlueBook money

Cons: Difficult for Harvard students to develop an interest in anything other than themselves

Odds: 100-1



Auction House Roundup, November 2013

A round-up of interesting items going under the hammer soon, across the auction-house landscape:

  • At Bonham’s Montana fossil auction on November 19, you can get this T-rex tooth (est. $5,000-$6,500) or, if you were an early investor in Twitter, this T-rex skeleton (est. $1.8-$2.2 million). But the T-rex isn’t even the most expensive item on the lot. That honor goes to the “Dueling Dinosaurs,” two dinosaurs fossilized together. Estimate: $7-$9 million. At this same auction, you also can pick up a triceratops skeleton (est. $700,000-$900,000), or a blue mammoth tusk (est. $250,000-$300,000).


Tort Cases in the 1995-1998 State Supreme Court Database

Professor Paul Brace at Rice University has compiled a very interesting database of cases decided by state supreme courts between 1995 and 1998. The database contains more than 23,000 cases,and has been very carefully and rigorously coded. A web page with more information about the database can be accessed here. One especially nice attribute: the database has been formatted in a way that you can import it into Microsoft Excel. (Open Excel first, then open the database, identifying it as a tab-delimited file.)

I don’t know that I’ll use the database for any of my work, but it definitely seems to have its uses. For kicks and grins, I did a quick “sort” to flag all of the cases identified as sounding in tort (inclusive of worker’s compensation) over the studied time period. This search yielded 4,948 cases, or about 17.5 percent of all cases in the database.  Of these cases:

  • 514 were flagged as “medical malpractice”
  • 395 were flagged as “professional malpractice”
  • 711 were flagged as “automobiles”
  • 399 were flagged as “product liability”
  • 86 were flagged as “toxic substance”
  • 488 were flagged as “premises liability”
  • 173 were flagged as “libel / slander / defamation”
  • 1,130 were flagged as ”employee injury and workers’ compensation”
  • 189 were flagged as “employment discrimination”
  • 108 were flagged as “other labor disputes”
  • 1,339 were flagged as “other torts.”

That the bulleted figures total more than 4,948 owes to the fact that specific cases could be flagged as raising multiple issues.

This was a back-of-the-envelope search, and I didn’t do a deep dive to figure out what cases were poured into each bucket. And, of course, I could be reading the database wrong; that’s always a possibility. At a glance, I’d observe that the percentage of the courts’ caseload that contained a tort issue or two during the 1995-1998 span is down a little, but not that far off from what Professors Kagan and Friedman found to be the case in their 1977 study of the same courts’ dockets during the 1945-1970 period. I am a little surprised that there were so many defamation cases, although I suppose these claims do tend to get thrown into lots of invasion of privacy lawsuits, almost as an afterthought.

The First Airplane-Accident “Lawsuit”

From Enter the Aeroplaintiff, an article in the “Cartoons and Comments” section of Puck (a turn-of-the-century humor magazine), October 12, 1910:

There are good times coming for the legal profession. The young lawyer, waiting in the proverbial manner for his first client, will have but a little longer to wait. Already the hum of industry in the law-school mills grows louder, and all because of an unheralded event in aviating, an event that marks an epoch in the annals of litigation. For the first time in the history of aviation, says a momentous dispatch, a lawsuit has been brought because of a collision between two biplanes, a passenger in one of them having had the misfortune, or the tremendous distinction, to break his leg, and “the case is now in court.” Future historians will reverence the day; future statisticians will record the hour; for there will be other damage suits undoubtedly. . . . 

We confidently assume that in the event of collisions, disputes over the right of way and the like, air-men will be permitted to descend to earth before they are handed a professional card or asked to part with a fat retaining fee. The aëroplane successor to the “ambulance chaser,” hovering about the atmosphere in his search for possible clients, would be intolerable. Let the Bar anticipate these impending evils. . . . 

I am trying to track down the “lawsuit” referenced in this article. From what I’ve learned so far, I think the collision occurred in Europe, and the purported “lawsuit” actually involved an appearance before a public prosecutor.

In any event, the author’s prediction proved false, at least for a time. In the United States, up through and including the 1920s there were very few tort cases associated with airplane travel, for reasons I’ve explained elsewhere.


And You Thought YOUR Case Was Moving Slowly

From The American Law Review, November / December 1899:

The Munich Supreme Tribunal has finally disposed of a lawsuit which had been in progress for some 300 years between the family of Baron von Thungen and the township of Burgsinn, in which the Thungen estates are situated. Ten generations of burghers and barons have been disputing the ownership of a large wood. The court has now recognized the township’s claim, condemning the Thungen family to pay the enormous costs which have accumulated during three centuries of litigation. 

Costs — pshaw. I hope, for the Thungens’ sake, that they didn’t have to pay prejudgment interest. If they did, by my calculations — assuming a starting principal of $1,000 and a seven percent annual rate — the judgment would have amounted to just north of $653 billion, three centuries later. Breaking News: Upcoming U.S. Supreme Court Term “Crammed With Blockbuster Cases,” Say Incredibly Biased People

WASHINGTON, DC (UP) — The upcoming United States Supreme Court term is likely to be one of the most important in recent years, say many lawyers, academics, and journalists who have every personal and professional reason to voice such an opinion.

“The Court will hear one blockbuster case after another this term,” said Martin Aleyn, who has attained a measure of celebrity because of his operation of CourtWatch, a website dedicated to the Supreme Court and its caseload.

CourtWatch will host sponsor advertisements for the first time this term.

Other completely biased pundits agreed with Aleyn’s assessment. “This truly will be a very important term,” said Professor Allison Tregn, a Constitutional law scholar at the Western School of Law whose professional prominence, at any given moment, depends entirely on a widespread sense that the Supreme Court is engaged in “very important” business.

Tregn singled out the campaign-finance case of McCutcheon v. Federal Election Commission as particularly worthy of note. “In deciding the Constitutionality of certain provisions of the McCain-Feingold Act, the Court will be shaping the future of campaign finance. It’s probably the most important case, ever,” she said.

At press time, Tregn was shopping an article on the McCutcheon case to law reviews.

Others who agreed that the Supreme Court was set to decide cases of vital importance to the entire American public included Therese Markel, whose book The Roberts Court will hit bookshelves on October 15; Kevin Oguidaye, The Washington Star newspaper’s Supreme Court beat reporter; and Bob Marko, Ezekiel Chavez, and Rami Buzi, three men paid to stand in line for seats at the Court’s arguments.


A joke, obviously. But it did get me to wondering: What was the least important Supreme Court term of the modern era? I’m not qualified to answer the question, but I suspect others might venture better-educated guesses.



Cert Grant in Navarette v. California

It looks like the United States Supreme Court granted cert in Navarette v. California this morning. I haven’t read the cert petition, but the case neatly presents the issue of whether and when police can stop a vehicle based on an anonymous tip of reckless or otherwise seriously impaired driving, suggesting that the operator may be driving under the influence of alcohol. It’s an interesting and important follow-up issue from the Florida v. J.L. case, and one that has divided lower courts — though in this age of smartphones, caller ID, and *69, the basic concept of a truly anonymous caller may be growing increasingly quaint.

Those of you with a long memory may recall that Chief Justice Roberts and Justice Scalia dissented from the denial of cert in Virginia v. Harris, a case that presented this same issue, a couple of years ago.

For those of you with interest, here are the facts of Navarette, as presented in the California Court of Appeal’s opinion below:

Continue reading

The Personal Injury Lawsuit Crisis, circa 1897

Presented, without further comment, are the first and last paragraphs of “Speculation in Damage Claims,” The North American Review, February 1897:

One of the most remarkable developments of recent years, a development to which public attention is rarely drawn and which those most interested have naturally endeavored to keep from public view, is the rapid growth of the speculation in damage claims for personal injuries. . . . . 

The system of trial by jury as it is now administered—certainly in Chicago, and probably in many portions of the country.—has broken down. The immediate result to Chicago, and to all other places in like condition, must be the cessation of manufacturing and industrial activity, whereas those States where the common law on the subject of negligence is recognized and enforced will be benefited by the change.

How to Plead a Criminal Conversation, Debauchery, or Seduction Tort, Circa 1878

From Estee’s Pleadings (1878 ed):

No. 372

For Criminal Conversation


The plaintiff complains, and alleges:

I. That A.B. is, and at the times hereinafter mentioned was, the wife of the plaintiff.

II. That on or about the ___ day of ___, 187_ [the day or about the day the first act of adultery can be proved], and on other days after that day, defendant, wrongfully contriving and intending to injure the plaintiff, and to deprive him of the comfort, society, aid, and assistance of his wife [forcibly and without consent of the said A.B.], wickedly, willfully, and maliciously debauched and carnally knew the said A.B., without the privity or consent of the plaintiff.

III. That by means of the premises, the affection which the said A.B. theretofore had for the plaintiff was alienated and destroyed, and the plaintiff was deprived of the comfort, society, aid, and assistance which he otherwise would have had from the said A.B., and has suffered great distress of body and mind, to his great damage _____ dollars.

No. 373

For Enticing Away Plaintiff’s Wife


The plaintiff complains, and alleges:

I. That A.B. is, and at the times hereinafter mentioned was, the wife of the plaintiff.

II. That on or about the ___ day of ____, 187_, while the plaintiff was living and cohabitating with and supporting her, at _________, and while they were living together happily as man and wife, the defendant, wrongfully contriving and intending to injure the plaintiff, and to deprive him of her comfort, society, and existence, maliciously enticed her away from the plaintiff’s and her then residence in ______, to a separate residence in ______, and has ever since there detained and harbored her, against the consent of the plaintiff.

III. That by reason of the premises , the plaintiff has been and still is wrongfully deprived by the defendant of the comfort, society, and aid of his said wife, and has suffered great distress of body and mind in consequence thereof, to his damage of _____ dollars.

No. 374 

For Debauching a Daughter


The plaintiff complains, and alleges:

I. That said defendant, unjustly intending to injure said plaintiff, and to deprive him of the services and assistance of the daughter and servant of said plaintiff, did, on the ___ day of _____, 187_, and on divers other days between that day and the commencement of this action, debauch and carnally know the said ______________, then and there, and before and since, the daughter of the said plaintiff, whereby the said ______________ became pregnant and sick with child, and so remained for a long space of time, to wit, the space of nine months thence next following; at the expiration whereof the said _________ was delivered of the child with which she was pregnant as aforesaid.

II. That by means of the premises, the said _______________ for a long space of time, to wit [one year], was unable to do the needful business of the said plaintiff, he, the said plaintiff, so being the father and master of the said ________________, and the said plaintiff lost the services of the said _______________ during all that time; and the said plaintiff was put to great expense, and did pay out a large sum, to wit, the sum of _______ dollars, in and about the nursing and taking care of the said ___________________, his daughter and servant, and in and about the delivery of said child, to his damage in the sum of __________dollars.

No. 376

For Seduction, by the Female Seduced


The plaintiff complains, and alleges:

I. That at the time of the commission of the grievances hereinafter mentioned, the plaintiff was and still is an unmarried woman, and at all times prior thereto had been chaste and virtuous.

II. That on the ____ day of _______, 187_, at ________________, the defendant, with force and violence, made an indecent assault upon the plaintiff, and then and there wickedly seduced, debauched, and carnally knew her, whereby she became sick and pregnant with child, and so remained for a long space of time, to wit, for the space of nine months; at the expiration of which time, and on the _____ say of ________, 187_, she was delivered of the child of which she was so pregnant.

III. That by reason of the premises, and in consequence of the seduction aforesaid, the plaintiff has suffered greatly in her health, and became sick, and was prevented for a long space of time, to wit,  for the space of _____ months, from attending to her ordinary business and affairs, and was greatly afflicted in body and mind, and has been put to great expense for medical attendance and nursing, and has otherwise been greatly injured, to her damage _________ dollars.

In the News, September 2013

A few odds and ends:

  • Lego Supreme Court Giveaway: The Case Western Reserve University Law Review, which has a terrifically innovative Twitter presence (I especially liked theTwitter symposia they held a few months back), is conducting a contest / drawing. The Law Review has commissioned a Lego Supreme Court (!), and will give it away to a contestant who, between now and October 4, tweets a review of an article previously published in the law review. 
  • “Out of the Past”: For those of you in the San Francisco Bay Area, the Stanford Theatre will be showing “Out of the Past” — one of the greatest of all film noirs — from September 26 through September 29. Special bonus: Part of the movie is set in Mono County, where I used to live and practice law.
  • Vigilance Committee Membership Certificate: I have often thought that a not-bad get-rich-quick scheme would involve the marketing of t-shirts and hoodies that bear the insignia of long-defunct 1800s and early 1900s vigilante groups, like the Bodie 601s. One such body, the Vigilance Committee of San Francisco, apparently issued certificates to its members, for goodness knows what reason. If you want to purchase one of these certificates, you can find it for sale right now on eBay.