I have been uninspired recently

I tried to hard to overreach with this blog. I think I wrote some interesting things at times, but I also went for weeks without anything to say.

When you cast too wide a net, you will come up empty.

Yet, I don't particularly want to reel in my focus. I am a law geek, first and foremost. I love the law, including matters outside my immediate practice.

Which is why Scott v. Harris is so fascinating. It is a summary judgment case on the issue of whether a police officer has qualified immunity when using force to stop a high speed chase. The rule at summary judgment is to accept the non-moving party's version of events as true, and then decide if there any issue of fact worthy to reach a jury.

Here, the plaintiff alleged that he was moving slowly and carefully, and that force was unnecessary. The defendant argued that the plaintiff was, essentially, a bat out of hell. Had the Court followed the usual rule, and summary judgment denied. Instead, the Court did something truly unique- they found their own facts, based on a video of the chase, then made the video part of the public record in the case, including it as part of the opinion (92Mb RealPlayer file).

Because of the video, the Court found that qualified immunity existed, 8 to 1. This is a first- the Court is usually deferential to the formalities of the law. Here, the formalities were just thrown out the window. Good- formalities run the risk of becoming meaningless lawyer's tricks when used to thwart the obvious (and just) outcome.

Open Source- Who is the "designer" for product liability purposes?

Engadget reported yesterday that the c,mm,n (pronounced "common") was unveiled at a Dutch auto show. c,mm,n is the world's first open source car, and the technology and plans are available for hacking and tweaking. Another open source car in the offing (but nowhere near a rolling prototype) is OScar. This is a day that I have been waiting for, when open source churns out major consumer products in meatspace. Given the recent financial and crappiness quality control issues that have plagued the auto industry, open source development promises to reduce R&D costs dramatically.

A legal issue exists, however, over defective design liability. Defective design is a products liability claim that exposes the designer of a product (as well as in addition to separate claims against the manufacturer and the seller NOTE: edited for clarity) to strict liability for injuries that result from the design flaw. An obvious example would be an iron that burns the house down because it doesn't shut off automatically- the designer should have foreseen that somebody somewhere would forget to turn the iron off.

So suppose that GM jumps on the c,mm,n bandwagon and produces it using the plans for version 1.0, and several years later a number of accidents reveal a design flaw that cause the vehicle to explode in rear-end collisions when both the left turn signal and license plate frame lamp are activated. So who is liable as the designer?

The open source development model has proven to be outstanding for developing software. However, since software generally doesn't kill people (at least not yet), these issues have yet to be resolved. I can see courts resolving the issue one of three ways:

1) Adoptive design. This is a kind of due diligence argument- if the General wants to slap their name on the car, then they should have made sure the plans work. This is a fairly common sense resolution- since the car is open, GM is the designer of the car if they have the opportunity to alter the design but do not do so. Clearly, if they had modified the design there would be no question as to liability; but by building the car as is, they have endorsed the design and adopted it as their own.

This is the best solution, as it encourages manufacturers to do their homework before releasing the product, and it allocates the risk to the party best able to bear it- i.e. the party who will actually profit from the design.

2) All designers are liable. This would be the worst possible solution, in my estimation, but there will be pressure coming from proprietary industries to persuade courts to embrace this approach. Imagine the onslaught of amicus briefs from Microsoft, Apple, and the patent bar arguing that "fundamental fairness" requires open source designers to be subject to the same liabilities that they are. Couple it with the lobbying and PR advantages that these industries enjoy, and I can picture the endless commercials on CNN or the Sunday morning talking head shows touting this line.

If a court were to adopt this line, and each designer were potentially on the hook, the litigation would be virtually endless. Before we even get to the ultimate issue of liability, there will be years of collateral litigation- is this kind of suit covered under a designer's homeowner's insurance? How does a court allocate the damages? If the defective component was 99% designed by one person, but 1000 other people contributes the remaining 1%, would all designers be jointly and severally liable equally or only liable for their actual contribution? If the community is jointly and severally liable, then the designers fight amongst each other in a separate trial over what their respective contribution should vis a vis each other, which would itself require a trial on who designed what. I could go on, but I am still only in my pajamas, and thus my brain is only running at 80%.

If courts adopt this rule, it would really sound the death knell of the open source movement, which is what proprietary industries really want anyway.

3) No design defect liability. A court could simply hold that an open source product is not subject to design defect liability. This option has the benefit of simplicity, but it seems unfair to plaintiffs. Design defect and manufacturer defect claims are different tort theories, not two different ways to go after somebody's pocketbook. Theoretically, a defectively designed car could be perfectly manufactured- thus no manufacturer's liability. The plaintiff's remedy is to go after the designer.

If open source products are immune from design defect, then the driver of a perfectly built but defectively designed Chevy has a remedy available to him/her that the driver of a perfectly built but defectively designed c,mm,n lacks. A market solution exists for the driver- if the driver can't bear the risk that she might not be able to recover on a design claim for the c,mm,n, then she can buy the Chevy. But what of injuries to third parties? A passenger in the defective car would be just as injured by the explosion, but would not have an opportunity to account for the risk through market action. Should that person only hitch rides from drivers of proprietary cars? What of the other vehicle in the accident?

This rule would also encourage the manufacturers of open source products NOT to perform due diligence, because taking the time to ensure that the car is well designed puts them at risk if they miss something. Obviously, we want safe products on the market, and any rule that encourages blindness to safety ought to be avoided.

I think my first option, adoptive design, works best for all concerned. It is fair to plaintiffs and defendants; it encourages manufacturers to check the work of the community; and it guarantees that open source development will continue and expand into real world consumer products. I also think I stumbled blindly and half asleepedly into a law review article. I will keep thinking about this and maybe develop it.

Tap, tap, tap... this thing on?

I've been away for awhile, actually doing, you know, important stuff.

In the meantime, let me share this. The totally brilliant John Hodgman explains executive privilege to Jon Stewart on The Daily Show.

The bad decisions

I've had an idea in my head lately- that I should write about those cases where, in my opinion, the Court screwed up. Not merely where I disagree, mind you, but where the Supreme Court just flat screwed the pooch- not only was the result wrong, but the reasoning was wrong as well. A truly bad decision will will apply bad law to achieve a bad result.

The cases in the anti-canon have a few things in common. These cases are more likely to involve claims that can be resolved narrowly, but the Court uses it as an opportunity to make a broad pronouncement; truly bad cases concern substantive rights as opposed to procedural law; the worst decisions usually have dissents that people can remember for years, long after the holding is forgotten. Finally, the bad decisions usually have major political ramifications that play out for decades. So let us begin with the worst decision in the history of the Court, the grandaddy of 'em all...

Dred Scott.

The precise question before the Court was strictly jurisdictional- is a slave of African descent a citizen of the United States, with the right to sue in Federal court? The Court ruled that slaves- in fact, that all persons of African descent, free or slave- were not citizens, and therefore the Court had no jurisdiction. Chief Justice Taney, a southerner and slaveowner, wrote (in some of the most repugnant racism you will ever see)-

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

Since Africans had no rights that "the white man was bound to recognize," Dred Scott had no right to sue. End of story, right?

Wrong.

Even after deciding that the Court lacked jurisdiction, Taney went on consider the merits of the case. This is where the case transcends from a merely mistaken decision, to a truly horrendous one. The Court opined that slavery was embedded in the Constitution, in clauses like the importation clause or the three-fifths clause, suggesting that slavery was a base assumption made by all the Framers, and in that regard, Taney was probably right. However, based on that the Court decided that the Missouri Compromise, an act of Congress that prohibited slavery in northern territories, was unconstitutional. This extra step was purely political, designed to encourage slaveholder emigration to all the territories. When the territory was deemed eligible for admission as a state, it would be admitted as a slave state. Thus the Court tried to jury rig a slave state majority, so to end the slavery issue once and for all. Instead, it probably helped to steer the ship of state toward the Civil War. It took three constitutional amendments to undo the damage, not to mention a quarter-million dead.

It is perhaps easy to forget this today, because the case is so universally reviled for its dripping racism, judicial overreach, and it's subsequent total repudiation, but this was actually a very carefully considered decision. The Supreme Court heard argument on it twice before deciding and there were a plethora of opinions submitted, including two dissents. Maybe this goes to show that bad decisions are only so obviously wrong in hindsight; maybe it shows that the Court had to work very hard to achieve the particular result it wanted.

What is truly interesting about this case is the way it resonates in the major controversies of our own time. It has been called worst examples of both originalism ( "Dred Scott actually represented something quite the opposite of judicial activism. That case was a good example of 'originalist' interpretation or 'strict construction.'") and judicial activism (Justice Scalia dissenting in Casey, suggesting that Dred Scott is the birth of substantive due process). Its shadow is long, its shamefulness deep and abiding.

Oh. My. God.

I owe the Legislature of Pennsylvania an apology. The phrase "ultimate sexual act" is not an example of poor legislative drafting. Instead, it copies word for word the language of the Supreme Court in Miller v. California:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

I still contend it makes little sense, but the Legislature just followed exactly the language of the decision.

Ultimate sex acts, normal or perverted

I am working on an appeal (that is due tomorrow- no time like the present, right?) which has significant First Amendment implications. Specifically, it is about whether the no-porn clause in our local sex offender parole/probation conditions meets Constitutional muster. Among the many things at issue is whether the condition is vague and overbroad. The trial court opined that it wasn't because the words "sexual conduct" are statutorily defined. However, the statute in question is a little less than clear. Sexual conduct is defined as "Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, anal or oral sodomy and sexual bestiality..."

Can anyone help me understand what the ultimate perverted sex act is? Or perhaps the ultimate normal sex act? I am, to be sure, intrigued...

I imagine that the original draft used the word "intimate," and it got changed somehow and no one noticed, which is both inexcusable and typical of Pennsylvania legislature, who seem not to read anything they pass. This is the state, after all, that will put you in jail for up to two years for beating someone up, but will put you in jail for up to five years if you threaten to beat someone up (simple assault is a second degree misdemeanor, but terroristic threats is a first degree misdemeanor).

Is there any excuse for such poor legislative drafting? I think not.

An unusual split at SCOTUS

The Supreme Court today decided the case of Philip Morris v. Estate of Williams, throwing out an $79.5 million dollar punitive damage award on the theory that awarding punitive damages as a way to punish a defendant for harms caused to other people not involved in the case is taking under the due process clause. However, and here is where my brain starts to hurt, the jury can consider harm to non-parties in determining the reprehensibility of the tortious conduct.

So they can't award punitives because other people were in harm's way, but because other people were in harm's way they can award punitives? What the hell? Justice Stevens picks up on this tortured distinction in his dissent:

While apparently recognizing the novelty of its holding, the majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant’s conduct—which is permitted—from doing so in order to punish the defendant “directly”—which is forbidden. This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant’s conduct, the jury is by definition punishing the defendant— directly—for third party harm. A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Citations omitted.

Also interesting is the way the Court split- Justice Breyer wrote the opinion of the Court, joined by the Chief Justice, and Justices Kennedy, Souter, and Alito. In dissent were Justices Stevens, Scalia, Thomas, and Ginsburg. Not the usual alignment to say the least.