Wednesday, March 23, 2011

Better Safe Than Sorry. Or Something.

Helen Palsgraf was standing on the platform, waiting for the train that was going to take her to Rockaway Beach.  If you've gone to law school, you know the rest of the story. If not, or if you want a refresher, here's the plot, courtesy of Benjamin Cardozo, then Chief Judge of the New York Court of Appeals.
A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away.

The scales, of course, fell on Helen Palsgraf.  Naturally, she sued the railroad.
The issue in Palsgraf v. Long Island Railroad Company was whether Mrs. Palsgraf could recover for her injuries.  The vote was 4-3 in favor of the railroad.
The three dissenters said that she could recover.  The railroad's guards were negligent.  Their negligence was the proximate cause of her injury.  Therefore, the railroad was responsible and should pay damages.
The majority said that it didn't matter whether the guards were negligent, at least not in the first instance.  What mattered was whether Palsgraf was within a zone of danger.  That is, was it reasonably foreseeable that what the guards did - even if they did it negligently - would cause an injury to someone, say Mrs. Palsgraf, at the other end of the platform.  Since it was not, the railroad violated no duty to her and thus has no liability for injuries, even if its employees negligently caused them.
Causation, according to Cardozo and the majority, is simply irrelevant to claims for damages in tort unless the harm was reasonably foreseeable.  (They do acknowledge exceptions, about which more in a bit.)
My subject, of course, is not tort law but criminal law.  I've talked about the difference enough that I'm not going to dwell on it here.
Simple version:
  • Criminal law is about the harm caused not to the individual victim of a criminal act but to the body politic.  The theory is that when A steals from B, it is not only B who is harmed.  A's action also tears the social fabric.  Criminal cases are, therefore, brought in the name of the local community or the state or the United States, and if the defendant is found guilty, punishment follows.
  • Tort law is about the harm caused to the individual victim by a wrongful act.  When A steals from B, B gets to sue A for the harm A caused.  Tort cases are, therefore, brought by the personal, individual victim (or victim's representatives if the victim is, say dead, or otherwise can't sue), and if the defendant is found liable, some sort of restitution follows.
But if tort law and criminal law differ, they both deal with issues of liability and cause.
The general rule** adopted by the majority in Palsgraf and pretty much universally accepted today in the US is that tort liability requires
  1. The defendant owes some sort of duty to the injured party.
  2. The existence of that duty is determined by whether the injured party is within a zone of danger, that is, whether it's reasonably foreseeable that some degree of misconduct (action or inaction whether from simple carelessness or something worse) by the defendant, if it ends up causing harm at all, will cause harm to the injured party.
  3. Harm to the injured party as a more-or-less direct result of the defendant's action or inaction.
All of which comes down to reasonable foreseeability and proximate cause.
The general rule in criminal cases where harm to individuals results*** is that criminal liability requires
  1. Some violation or attempted violation of a legislatively adopted rule.
  2. A reasonably foreseeable harm as a result.
  3. Actual harm.
I'm leaving out so much that this is close to misleading.  But it doesn't matter because, really, this is all just a set up for talking about reasonable foreseeability and proximate cause (the Palsgraf issues) in criminal law.
And to do that, I need to tell you about a discussion last week on a listserv populated by lawyers and others who are either connected to the law somehow or just hangers on.  Here's roughly how it started.  (I've taken some authorial license to omit some irrelevant facts and fiddle with others; I'm making points here, not revisiting the substantive discussion.)
A college student was filling out one of those anonymous evaluations of his professor at the end of the semester.  Along with checking this, that, and the other thing, the student took the opportunity to explain that he was hot for the teacher.  He wanted sex.  Lots of it.  And was explicit about what he wanted.  Blow jobs.  Anal.  No mention in the post of bondage or particular positions, but perhaps there were such mentions and the poster was being coy or shy or whatever.  Poster didn't use words like fuck, either, but I suspect the student did.  Student also mentioned that he was always horny after class from the girl who sat in front of him.
OK, that's all highly weird in the comment section on a teacher evaluation.  And inappropriate.  And offensive.  Really, it's completely fucked.
But, and this wasn't the question posed by the person who put that on the listserv, but it's where the discussion following the question went: What's with this kid?  More specifically, is he
  • Just a horny college student
  • A guy with a terribly inappropriate and infantile sense of humor
  • Someone on the cusp of becoming a serial rapist, possibly starting as soon as that day.
  • Something else
Any of those things is possible.  Indeed, they could all be true.  (It's striking how many folks were prepared to provide a psychological profile they found compelling and virtually certain to be accurate on the basis of the summarized comments the student wrote.  But that's really beside the point.)  What gets me writing about it is what happens next.
Ignore it.
Figure out which anonymous student wrote the stuff and then
Ignore it.
Try to keep that student out of your classes in the future.
Meet with the student to provide instruction in appropriate behavior.
Meet with the student to tell him off.
Have the student expelled.
Have the cops arrest the student.
(Yeah, hook up with the student is a theoretical possibility, but we're not going there.)
So how do you decide? 
Lots of stuff factors into the decision, of course, but key is just how dangerous you think the student is.
Imagine, if you will, that you're defending someone who's facing trial for murder.  Hell, make it a death penalty case.  Imagine that the evidence against your client is strong but not impregnable and that your client maintains he's innocent.  Now, imagine that you come to hear that your client wants to arrange to have the key witness against him killed.
Do you
  • Cconfront the client and demand the truth about the crime and the threat?
  • Investigate to determine whether your client really wants to have the witness killed?
  • Tell the police that you heard that your client wants to have the witness killed?
  • Ignore what you've heard?
Now let's hike it a bit further.  You don't just hear a rumor.  You have actual evidence, hard and credible evidence that your client doesn't just want to have the witness killed but has made arrangements to have the witness killed.
These are real world issues for criminal defense lawyers.  Ones they don't teach in legal ethics classes or test on the Multi-State Professional Responsibility multiple choice test prospective lawyers mostly have to pass along with the bar exam. And they have, potentially at least, real world consequences. 
Dead witness, executed defendant, disbarred lawyer.
Or maybe none of those.
But what you do here when you're the lawyer with that rumor or that hard evidence is more than a matter of legal ethics.  At some point you start to feel, maybe, the tug of something more like morality or human decency.  What you do about it?  That's a separate issue.  I'm interested here in that point where the tug starts making itself felt.
I know lawyers who practice criminal law who'd turn on their client as soon as they heard a rumor.  Others would live with the rumor, but when something starts to point toward credibility, they're running to the cops to rat out the client.
And I know some who'd say that no matter their knowledge, the witness's life isn't part of their charge.
But I want to go back to that student.  Because it turns out that what looks to me like an easy case - ignore the idiot - turned out not to be for a whole lot of people.  There are the ones who wanted to string him up by his balls before he got to commit all those rapes that were sure to follow.  And there are others not quite so ready to concede future guilt but seriously concerned enough to want to insist on expulsion.  Or counseling.  Or at least investigation.
And that takes us, in a truly roundabout way, to things we believe and what it takes to convince. 
In tort law, to bring this back to Helen Palsgraf and Chief Judge Cardozo, the issue ends up being phrased as reasonable foreseeability.  What makes sense to imagine.  Not what can one imagine.
We can imagine almost anything if we try hard enough.  ("Think lovelier thoughts, Michael," says Peter Pan to the youngest of the Darling children in the musical when his lovely thought [candy] isn't lovely enough to get him flying.)  And of course some go beyond mere imagining, joining the White Queen who managed to believe six impossible things before breakfast.
No, not what's theoretically possible (anything), but what's reasonable to believe.  What makes sense.
So let's go back to that student and what you do about him.  There are those who feared getting sued or the school getting sued by his rape victim.  After all, look at the evidence from which it's possible to imagine he'll become a rapist.  I said no, based on the one silly, perhaps offensive, certainly inappropriate set of comments, rape is not reasonably foreseeable.  
But what if you're wrong, came the response.
To which I wrote (edited slightly to make it more coherent here where there isn't the entire cockamamie previous discussion - for which, even if, especially if you've stuck with me this long, you should be grateful).
Sure. Life is tricky that way. We can be wrong. The student might turn out to be a rapist. Nearly anything is possible. (In fact, if you study quantum physics, you might conclude as some physicists do, not only that anything is possible but that given enough time every theoretical possibility will in fact occur. That is, the student both will and won't become a rapist. As will you and I and every other member of this list.)

But if the question is "reasonable foreseeability," which for tort purposes the bare minimum that would generate a duty to act (if such a duty could be generated at all), then theoretical possibilities are irrelevant. And while it's certainly possible that a person that student raped might sue the university (and might regardless of the inappropriate comments on the teacher evaluation), it's also possible that the student, on being outed (and not being a rapist) might sue.

Who's got a better case? Does either one have a credible case? One that would pass the laugh test? On the very limited information we actually have, and as a pure bar exam question, you could make arguments all over the place. But that's what lawyers do. Would any of them fly in the real world? Probably not. Almost frivolous law suits get filed all the time, of course. Judges are pretty good at dismissing them.

In Shakespeare's Measure for Measure (Act II, Scene I), Pompey (a clownish but sensible servant) is being chastised by Escalus who, on behalf of Angelo (the interim ruler of Vienna) is trying to put an end to all extra-marital sex.
ESCALUS: How would you live, Pompey? By being a bawd? What do you think of the trade, Pompey? Is it a lawful trade?
POMPEY: If the law would allow it.
ESCALUS: But the law will not allow it, Pompey; nor it shall not be allowed in Vienna.
POMPEY: Does your worship mean to geld and spay all the youth of the city?
ESCALUS: No, Pompey.
POMPEY: Truly, sir, in my poor opinion they will to't then.
See, the only way to guarantee that no student will cause harm that can be - however tenuously - traced back to the university is to assure that there are no students at the university. Or perhaps to conduct thorough and continual investigations and surveillance of each of them. That's unacceptable and frankly impossible. So all that's left is setting a floor. Something like the tort standard of "reasonable foreseeability" or maybe something even stronger than that, say actual likelihood. But if that's the standard, then the possibility that a dangerous person might slip through without meeting it is just what happens. In fact, it might happen whatever the standard. Unless you geld and spay all the youth of the city. And then make sure that nobody attends your university.
Escalus (really Angelo for whom he's readily fronting) is driven by self-righteous priggishness.  (And hypocrisy, we'll learn as the play goes on.)  The posters on that other list, like our legislators and especially judges and prosecutors are driven by self-righteous priggishness but also, and especially, by fear.  (And yes, by political considerations, too, though those are mostly subsumed under fear.)
But they make the same mistake.  They think can control human behavior by imagining the worst possible outcome.  And then convincing themselves that it's likely.  When it's not even reasonably foreseeable.
And then they want to geld and spay all the youth of the city.
Or just lock them all up.
Because you never know.

*Here's Cardozo, again, explaining what I just said in language virtually impenetrable to the first year law students who will read and be expected to understand his decision.  Please, if you're thinking about going to law school, imagine three years of this.  And note that I've made it simpler by silently deleting all citations.
The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. "Proof of negligence in the air, so to speak, will not do." "Negligence is the absence of care, according to the circumstances." The plaintiff as she stood upon the platform of the station might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor. If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury."
** There are lots of exceptions.  They don't matter here.
*** Again, there are lots of exceptions.  It's also important to say that I'm excluding from this so-called "victimless" crimes:  most drug offenses, traffic offenses when there's no accident, unlawful possession of firearms, conspiracies where nothing actually occurs, etc.


  1. A particularly interesting post, coming upon Paul Cassell's post at VC touting the 5th Cir. decision holding that "victims" need not show proximate cause between criminal conduct and loss to obtain restitution.

  2. God, what an awful opinion making an awful statute even worse.