Society suffers erosion of trust; Skechers isn't helping

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Trust seems in short supply in contemporary American culture, and secret surveillance of our children feels unhelpful.

At the start of each academic year in 1L Torts, I introduce students to 20th-century legal scholar Roscoe Pound and his observation that tort law tends in a socially evolving society to redress ever more abstract injury, as if on a trajectory from physical trauma to mere hurt feelings (YouTube). I want students to see that it's important to put the brakes on this trend at some point, lest tort law so invade the province of everyday life that we refrain from social interaction for fear of liability. Much of the study of tort law is about this braking, drawing the line.

It was alarming, then, to hear a discussion on the National Public Radio (NPR) podcast It's Been a Minute describing what many people regard as "cheating" in a relationship, in tandem with the view that cheating can be equated with abuse. Host Brittany Luse related results of a YouGov poll: "55% of Americans believe flirting with another person is cheating. 64% say the same about holding hands with another person, and 73% say the same about forming an intense emotional attachment to another person." 

Luse further explained, "Some people are claiming that cheating is abuse. There's actually a whole community of people that have been cheated on who call themselves Chump Nation, and some of them are really adamant about this interpretation." The Cut writer Kathryn Jezer-Morton suggested that from this perspective, which she did not endorse, cheating would effect a legal wrong, specifically, a breach of contract—or, I would suggest, in the absence of a contract, a tort.

Jezer-Morton aired my reaction to the proposition: "I don't feel comfortable equating cheating with abuse, personally." Just as overuse of tort law can strangle social and economic relationships, freelance culture journalist Shannon Keating worked out the unintended consequences:

I mean, I think one quite negative effect of [sensitivity to cheating] being so hyper-present in dating culture is that, if you think about how easy it is for someone to feel slighted and then go post about it online, there's high stakes just going into a relationship when you don't necessarily have the presumption of privacy. Or of being able to trust that you'll be able to work something out with your partner directly and give each other grace for tough stuff. 

I get that an errant lustful look is adultery in the heart (Matthew 5:28). But I'm not sure that's a workable rule for legal liability. And in a romantic relationship, truth is essential, and grace is divine. In any event, and decidedly unlike physical abuse or the most extreme cases of infliction of emotional distress, these are matters of social norms and morality, not law. 

On the moral front, meanwhile, I worry that mistrust is becoming endemic in our culture in more than just intimate relationships. I suspect that growth in mistrust is fueled by politicians' strategic sewing of hate. 

In this vein, I was struck by a radio ad that aired incessantly as I was driving around Nevada for two weeks this summer with few channels to choose from. The ad was for a new kids' shoe by Skechers. Skechers online describes the new shoes and their special feature: "Each pair is designed with a secure, hidden pocket under the insole that perfectly fits most locator tags, so you can always know where their favorite shoes are."

So there are distressing implications if we are living in a society in which kids need to LoJack their $60 shoes. But you might've already worked out that missing shoes is not really the problem. My suspicions were aroused when, toward the end of the radio ad, the announcer said that the hidden compartment in the shoes would be undetectable to the wearer. 

The website doesn't mention the "Find My Child" take on the "Find My Skechers" feature. But radio ad or not, the functionality has not been lost on consumers (e.g., Instagram reviewer, KTLA).

I don't put myself on any pedestal for parenting. It was a trial-and-error adventure. Sometimes I did well, sometimes not so much. And we did once flirt with phone tracking software. But we were all upfront about it. I don't remember ever thinking that secret surveillance would build healthy family dynamics.

Maybe kids victimized by Find My Skechers should be able to sue their parents for data protection infringement.

That should make the world better.

Video resources for teaching theory of intent in tort law

I've created some new video resources to help in teaching common law torts.  These videos all relate to theoretical points in the introductory unit on intent.  The videos are available on my public YouTube channel.  They can be used in any torts course, though they track Shapo & Peltz-Steele, Tort and Injury Law (3d ed. 2006) (CAP, FB, Amazon), and Steele's Straightforward Torts (free from SSRN).

Study: Intent in U.S. Tort Law.  This video offers a study in the theory of intent in U.S. tort law.  A movie clip is analyzed to demonstrate analysis of intent in battery.  Running time: 8:50.

Explainer: "Pound Progression" in U.S. Tort Law.  This video briefly explains the three steps Dean Roscoe Pound observed in the development of civil justice systems.  Running time: 2:19.

Explainer: Eggshell Plaintiff Rule in U.S. Tort Law.  This video briefly explain the operation of the eggshell plaintiff rule, as well as the reason for its inapplicability to intentional infliction of emotional distress.  Cited is Vosburg v. Putney (Wis. 1891).  Running time: 2:36.

Explainer: Culpability Spectrum in U.S. Tort Law (Pound to Intent).  This video examines the culpability spectrum in U.S. tort law with an emphasis on variations on intent.  The video further explains how culpability can be varied to compensate for the uncertainty implications of the Pound progression.  Running time: 3:44.

Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass

Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass.  That probably should not have surprised me, given his birthright in Massachusetts aristocracy.  And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law.  Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.

The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.  That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919.  In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act.  Then in fall 1919, Holmes suddenly turns up in dissent to further convictions.  He used almost the same language, the same rules that he had authored and joined earlier in the year.  But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.

Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time.  Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.

So what happened to Holmes in the summer of 1919?  To answer that question, Healy takes the reader on a spellbinding journey into the social and political dynamics of America’s intellectual class—and last survivors of the Civil War—as they struggled to maneuver the country in a new world order shaped by the ravages of an unprecedented war.

There is an apocryphal answer to the 1919 question.  The free speech analysis that Holmes and Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition advanced by Judge Billings Learned Hand as trial judge in a 1917 case in federal court in New York.  Hand and Holmes knew one another, if not well, and their contrasting judicial philosophies, co-existing in era, frequently prompt comparison by scholars.  So it was once speculated that perhaps Holmes had met with Hand in precisely that summer.  It’s the kind of story that would make an exciting two-man show for the law-and-theater crowd.

As Healy tells it, Hand did play a role, if less direct, in reshaping Holmes’s thinking.  Another figure emerges as a key intermediary in Healy’s narrative, British political scientist Harold Laski.  Laski did interact with Holmes quite a bit, before, during, and after the summer of 1919, and his influence is plain.  Of course the full story is a good deal more complex, and Healy constructs it masterfully.  More than that, I won’t spoil.  Read the book.

Holmes in 1861 daguerreotype.

I was struck by three points of the story, and they all relate to Holmes not really being the paragon of personhood I wish he were.

First, Holmes was an elitist.  He read 50 books in the summer of 1919, Healy recounts.  He was always eager to immerse himself in the rich intellectual legacy of the Greek philosophers.  He was much less eager to take up Justice Brandeis’s invitation to visit textile mills in the summer of 1919 to witness for himself the unsettling state of labor and labor strikes in post-war America.  On the one hand, it’s fabulous that Milton’s Areopagitica and Mill’s On Liberty were part of the deep knowledge of the man who shaped modern free speech law.  On the other hand, it’s hard to tell whether he really understood the implications of dissent on the ground.

As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma unfolding in legal education today.  Law schools are entranced with experiential education and are dumping jurisprudence in an effort to get students more time in practice training.  Ian Holloway and Steven Friedland recently located legal education in tension between a “grand university” model and a “Hessian craft guild" model.  Holmes was all grand university, and that is not ideal.  But modern free speech would not be what it is today if we were depending on the Hessian craft guild to build it.  It’s really important to have room for both.

Second, Holmes was a little slow on the uptake, even on free speech doctrine.  There was in fact correspondence between Hand and Holmes, though it pre-dated 1919.  And Healy reports how Holmes just missed the point.  Had he gotten the point, he might have started dissenting a bit earlier, and maybe even saved some demonstrators and harmless Bolsheviks from long prison terms.

A good example of Holmes’s fumbling start is the “clear and present danger” doctrine, which was born before the summer of 1919, but only later acquired its more rights-protective meaning.  “Clear and present” was indicative of Hand’s influence, suggesting as it did what today we might call a behavioral economic approach to legal reasoning.  But Holmes rather blew it, because his use of the test was highly subjective.  He gave the test no meaning, so allowed it to be perverted by the fever of the Red Scare.  Later evolution of the test would reveal a dynamic relationship between variables such as the “imminence” and “gravity” of the danger.  That more sophisticated analysis prophylactically protects speech that might be subversive, but poses no real threat, and also allows free speech doctrine to realize its critical anti-majoritarian function.  Hand understood that in 1917.  It took Holmes quite a while to work it out.

Third, Holmes was not a friend you could count on.  Amid the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the Harvard Law faculty, suffered virulent persecution for their politics and identities.  The “Red Summer” was the very summer of 1919.  Both men were sympathetic with labor, and both were labeled Bolsheviks.  Frankfurter, who was Jewish and Austrian, was further denigrated by post-war anti-Semitic and anti-German sentiments.  Critics of Laski, a British national, demanded his expulsion from teaching at Harvard Law.  Imagine!—persecution on a law faculty based on the politically correct zeitgeist.  How last century.

To be fair, Holmes and Harvard Law Dean Roscoe Pound did take steps to defend Laski and Frankfurter.  But their efforts, especially Holmes’s, were lackluster.  Despite the loving affection that Holmes professed for like-a-son Laski in private correspondence, Holmes resisted early entreaties to help.  Holmes was afraid of offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom Holmes regarded as friends.  Holmes preferred to distance himself from the conflict and retreat to the sanctified solitude of his private library.  The great dissenter, a Civil War veteran wounded in action, whose famous diction dominated doctrinal opponents, shrank from moral defense of his friends, lest the comforts of his social and economic status be placed in jeopardy.   

Huh.

An honorable biographer, Healy is straightforward and matter of fact when it comes to Holmes the man.  Holmes was a voracious reader, brilliant thinker, and surely was one of the greatest jurists, perhaps the greatest jurist, in American history.  Civil rights as we know it today, and much of human rights as it is known in the world today, owes a debt to Holmes.

Holmes also cheated on his wife.

“If anyone, then, knows the good they ought to do and doesn’t do it, it is sin for them.”  James 4:17.