Wednesday, January 9, 2013

Kramer Sued over Law Review Article

KramerZachary Kramer (Arizona State) wrote a law review article describing an employment discrimination case in which a bank executive allegedly equated vegetarianism with homosexuality and taunted/harassed an employee on the basis of both.  Now the bank executive is suing Kramer for defamation and invasion of privacy.  The executive also is suing Washington University Law because its law review published the article, and Western New England College of Law because Kramer presented his article there.

Kramer's article is Of Meat and Manhood.  The discussion of the underlying discrimination case begins at page 305.  The article describes in detail the facts as alleged in the plaintiff's complaint that had been filed in a New York State court; the footnotes clearly indicate that Kramer's source is the complaint itself and that Kramer was not claiming an independent source of knowledge of the facts giving rise to the discrimination claim.

A plaintiff's recitation of facts in a complaint are of course subject to an absolute judicial privilege from defamation suits.  Kramer's republication of those facts, in a context in which he makes it clear that he is claiming no independent source of knowledge of the facts, should be similarly privileged.  A ruling to the contrary would stifle not only academic debate, but would preclude newspapers from reporting on just about any type of case filed in just about any type of court.  12(b)(6)?

On the upside: at least we know someone is reading our articles!

Here's the complaint; here's a detailed story in the ABA Journal; here's a note from Brian Leiter

rb

http://lawprofessors.typepad.com/laborprof_blog/2013/01/kramer-sued-over-law-review-article.html

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Comments

This sounds like one of those uncommonly silly lawsuits that give lawyers a bad name.

Posted by: James Young | Jan 9, 2013 4:56:09 PM

Does New Jersey have an anti-SLAPP law? I sure hope so, because this seems tailor-made for it. It's transparently intended to shut down comment on a matter of public concern (hint to plaintiff attorney: there's a reason that we let members of the public into courthouses). And it's baseless to boot. I do not see how a law professor repeating complaint allegations-- allegations, mind you, which are themselves already subject to significant court sanctions if they are false or misleading-- in a public proceeding can possibly constitute the making of a recklessly or knowingly false statement, outside of the weird edge case where the law professor has some personal involvement in the case.

Reading further: My God, it gets worse. Count 2 is for public disclosure of private facts. Guess what, genius: it's not a private fact if the guy is getting it from a publicly available document.

Whatever lawyer put his name on this pack of nonsense should be brought up on disciplinary charges.

Posted by: Anon | Jan 9, 2013 6:26:04 PM

The Pacifico case raised issues of stereotypes, manliness and how what we eat or drink is seen by others; do you remember whether real men ate quiche or not? Immediately after reading this article, I stumbled upon an article on what drinks men should not order. http://drinkingmadeeasy.com/booze-in-the-news/askmen-coms-top-ten-drinks-real-men-should-never-order/

Posted by: Joan Hill | Jan 10, 2013 8:41:28 AM

This raises the issue of the indemnification clauses many publishers (of both books and law reviews) routinely put in their publication agreements. Even winning on a motion to dismiss can be costly -- I wonder who's paying for the defense.

Posted by: Joseph Slater | Jan 11, 2013 8:00:20 AM

I am old enough, Joan, to remember Real Men Don't Eat Quiche. 101 Uses for a Dead Cat, too.

Posted by: James Young | Jan 11, 2013 2:54:14 PM

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