November 25, 2006
Remedies for Incorrect Inclusion in Spam Filters
Interesting SSRN paper posting addressing potential remedies for being improperly included in spam filters. The abstract:
This paper discusses the growth and increasing significance of e-mail in the business and personal environment, and how unsolicited bulk commercial e-mail, also known as spam, has become a significant drain on technical and economic resources. It analyzes the statutory and self-help efforts to combat spam, focusing on block lists and automated spam filters, and how alleged spammers have brought lawsuits in U.S. courts claiming they had been wrongfully included within block lists and filters. Finally, it describes possible claims under U.S. law, then argues for a higher standard of care among block list vendors and the need for recourse to courts when self-help remedies for mistaken block listing fail.
November 22, 2006
We'll be traveling, probably without internet access, until Friday night. So: no new posts, and comments won't get approved until Saturday.
Have a good holiday, all.
OJ Civil Judgment Fight Still Going
So says Newsweek, which reports on the victims' families' attempts to find out more about the deal Simpson made with Fox and Reganbooks.
November 21, 2006
Nancy Grace Sued
Embodiment of evil TV host Nancy Grace has been sued by the parents of Melinda Duckett, the mother of a missing boy. Duckett underwent a rather harsh interview by Grace that at least suggested suspicion of Ducket in her son's disappearance.
Overlawyered is unsurprisingly skeptical. I'm not so sure that -- if the facts as alleged are true -- there's not a decent intentional infliction of emotional distress claim, though certainly I'm hesitant to go so far as to find liability for the suicide. In general, of course, unless the decedent acted while insane or suffering delirium, legal cause in most states precludes liability for suicide. I haven't looked at Florida law, but I'd be surprised if it's different.
The key fact for a claim based on something short of the suicide to me in the complaint is the alleged bait and switch, where Ms. Duckett apparently believed she was going on the show only to publicize her son's disappearance, not to undergo a cross-examination. The complaint certainly focuses on Ms. Duckett's suicide, but presumably the plaintiffs could prove some level of distress short of the suicide (perhaps using the suicide as evidence of that distress, even if no recovery was allowed for her death itself).
The claim for IIED asserted by the parents in their own right, based on the decision to air the interview within hours of Ms. Duckett's suicide, seems somewhat more problematic, in particular in showing intent (even under the reckless disregard standard) and causation.
In any event, if you cover intentional torts late in the course, or if you're just looking for a good IIED hypothetical, this might be worth considering.
Via Overlawyered, a Washington Post story noting (outside the litigation context) the concept of warning dilution, though it also notes some strategies for avoiding warnings becoming part of the background:
Regularly changing the look and sound of public announcements and billboards is a useful first step. Scholl said it also makes sense to limit warnings to times when there is a known and specific threat.
Maybe the FDA should require the use of changing colors of astrobright paper for package inserts. Hey, they could throw in some cartoon characters too!
A couple of years ago, after my first go-round of grading Torts exams, I wrote a piece for Evan Schaeffer's Legal Underground. The piece, A Law Professor Shares The Top Arbitrary Number (Turns Out to be Six) of Things Not to Do on Law School Exams, discusses, well, the top six things not to do on law school exams. I think it was good advice then and remains generally good advice now; you might want to share it with your students.
Damages & Taxes
The first article addressing Murphy v. IRS that I've seen is on SSRN. The piece, from Gregory Germain (Syracuse) has this abstract:
Does Congress have the power under the United States Constitution to tax compensatory personal injury awards? Several months ago, the D.C. Circuit Court of Appeals said “no” in Murphy v. Internal Revenue Service. The court theorized that Ms. Murphy's compensatory damages award did not constitute “income,” as understood by the enactors of the 16th Amendment, because the award merely made Ms. Murphy whole rather than increasing her wealth.
This paper disputes virtually every aspect of the Murphy decision. The court made errors from the beginning in analyzing the statutory issues. While the court ultimately reached the correct preliminary conclusion – that Ms. Murphy's award was statutorily subject to taxation – the court's flawed analysis led it to consider the constitutionality of, and ultimately to hold unconstitutional, the wrong statute.
Even though the court's flawed statutory analysis may have been harmless, its flawed constitutional analysis was not harmless. The court of appeals ignored the Constitution's original Article I grant to Congress of the power to impose taxes, as well as the first 100 years of judicial rulings recognizing Congress's plenary power under Article I to tax both property transactions and income from human capital, such as wages. A proper review of the pre-16th Amendment law shows that Congress could tax Ms. Murphy's award under its original Article I powers even if the award was not “income” under the 16th Amendment.
Moreover, there was no legitimate support in Murphy for the court's conclusion that the enactors of the 16th Amendment in 1913 did not intend for compensatory damages awards to be subject to taxation as “income.” Instead of citing contemporaneous evidence of intent, the court relied on two 1918 administrative rulings that did not even purport to consider the meaning of the 16th Amendment, and the court ignored earlier administrative positions, closer in time to the 16th amendment, treating such awards as taxable.
Viewed in context, the 1918 administrative rulings were an attempt to comprehend then-recent Supreme Court decisions interpreting the meaning of the early taxing acts – interpretations that have long since been undermined by Supreme Court judicial opinions. The court of appeals took these administrative rulings out of their historical and factual context in an attempt to attribute to the enactors of the 16th amendment the conclusion it sought to reach – that Congress does not have the constitutional power to tax compensatory damages awards.
The enactors of the 16th Amendment had a limited objective: to overturn the Supreme Court's 1895 decisions in Pollock v. Farmers Loan & Trust, which held that Congress lacked the power to impose taxes on income generated by real and personal property without apportionment. It is folly to suggest that the enactors of the 16th Amendment had a clear opinion about whether non-physical emotional distress damages would constitute “income.” The enactors of the 16th Amendment left it to the courts to determine the meaning of “income,” and it took decades after the enactment of the 16th Amendment for the courts to develop a coherent definition of income.
November 20, 2006
It's An OJ Extravaganza
Okay, no, it's not. But in case you're trying to keep up on it, Don'tPayOJ.com is advocating against any money going to OJ based on the book discussed below.
(Things are still a bit harried - I'm sick, my kids are sick, and one may have lice. Hooray! I hope to return to more regular posting soon, honest.)
November 19, 2006
TaxProf has one possible answer to my earlier questions about OJ Simpson's new book and his efforts to avoid payments to the Goldman family.