Bill O’Reilly & Fox News: Does Money Matter More Than Doing the Right Thing?

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Category: Civil Rights, Feminism, Human Rights, Media & Journalism, Public, Tort Law
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Yesterday, Fox News ousted Bill O’Reilly, who for two decades was the top-rated host with his show, The O’Reilly Factor. O’Reilly’s blustery on-air persona—which inspired Stephen Colbert to create ultraconservative pundit Stephen Colbert on the Colbert Show—minced no words, ever.

As a result, he often said outrageous, offensive, if not downright inaccurate things on the air. For example, he said that the slaves who built the White House were “well-fed and had decent lodging provided by the government.” He called child hunger “a total lie,” and said that feminists should not be allowed to report on Trump “because Trump is the antithesis of” feminism. He’s also been known to make inappropriate comments to women on the air.

O’Reilly’s personal conduct (like that of his former boss Roger Ailes before him) apparently has been similarly offensive. Over the course of his time at Fox News, O’Reilly has been accused of sexual harassment and other inappropriate behavior involving both women at the network who worked for him and women who appeared as guests on his show. Read more »




Legal Issues and Pokémon Go

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Category: Computer Law, Intellectual Property Law, Popular Culture & Law, Public, Tort Law
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20160727_135932Okay, I admit it. I’m playing Pokémon Go. It’s frustratingly addictive.

For those who don’t know, Pokémon Go is an app for smartphones; the app is free, but players can make in-app purchases. The idea is for each player to “catch” creatures known as Pokémon, which the player does by “throwing” what is called a Pokéball at them. Once you catch the creatures, each of which has its own special powers and abilities, you can “evolve” them into stronger, more powerful creatures and you can go to gyms to “battle” other players.

Pokémon Go uses GPS to figure out where a player is located and presents the player with that “map.” Pokéstops (where players can go to get free goodies they need to play the game) and gyms are represented on the map as actual places, usually public places like parks, sculptures, or churches. To get to a Pokéstop or to battle at a gym, a player needs to physically move herself to that location. For example, the Marquette University campus is full of Pokéstops—e.g., a few sculptures on the southeast side of campus, one of the signs for the Alumni Memorial Union. Dedicated players certainly get some exercise.

Pokémon Go is also interesting because of how it mixes your real-life location with the mythical creatures. When a creature appears, you can take its picture, as if the Pokémon is right there in your real world. (See the pictures in this post.)IMG_20160722_084109

But Pokémon Go has been at the root of a number of accidents and incidents and it raises a number of interesting legal issues.

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Farewell to Ronald H. Coase

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Category: Corporate Law, Public, Tort Law
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CoaseAlmost every student who has attended law school in the past 40 years has encountered Ronald Coase and the Coase Theorem. Even professors who disagree with Coase feel compelled to expose their students to his famous theorem, even if only to rebut its argument. As a long-time teacher of both Torts and Property who is not an advocate of law and economics, I cannot imagine teaching either course without references to the Coase Theorem as a way of evaluating the correctness of legal rules.

In a nutshell, Coase, widely acknowledged as the founder of the law and economics movement, posited that in a world without transaction costs, individuals would bargain with each other to achieve the most efficient use of resources, and legal rules would be irrelevant. As a consequence, in a world with transaction costs, Coase seemed to suggest that legal rules should be constructed so that they favor the most efficient user, since that is the party who will eventually end up with the resource . The Coase Theorem was presented to the world in a 1960 article entitled, The Problem of Social Cost, which appeared in the Journal of Law and Economics and is still the most frequently cited law review article in history. Read more »




Any Chance of Protection?

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Category: Public, Tort Law, Wisconsin Civil Litigation
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I was inspired to write this post after a lovely conversation with my roommates (for those of you that might not know, by “roomies/roommates” I mean my parents #Living@Home) who were up north skiing over winter break. Essentially, my roomies called me with a very urgent question regarding the law. “Son, it appears they are having us sign a ‘Waiver and Release’ form that is really long, with lots of statements in capital letters that really don’t make any sense. Is there a statute on point that requires companies to use the word NEGLIGENCE in all capital letters over 30,000 times? What do we DO!?!?” asked my confused father. Fresh off my Professor Anzivino contracts exam, I knew exactly how to respond.

“Dad, you guys are in Wisconsin correct?”

“Yes, we are in Wisconsin.”

“Excellent. Dad, Mom, as an aspiring law student, and in order to adhere to the heightened Ethical Code that comes with being a lawyer, please understand I cannot provide any legal advice… but I think you should read the contract and ski away!” Read more »




New Article by Prof. Mitten on Coach Liability for Player Injuries

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Category: Legal Scholarship, Public, Sports & Law, Tort Law
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The recent news of two lawsuits brought by the families of high school football players who died after strenuous summer workouts raises difficult questions regarding the legal and ethical obligations of coaches to protect their players from harm.  Coincidentally, Matt Mitten has a new paper on SSRN that explores just such questions.  Among other things, Matt thoroughly surveys the leading tort cases from across the country.  He highlights significant state-to-state variations in the law and identifies what may be an emerging (and troubling) trend among courts toward a special liability standard for coaches that is less protective of athletes than ordinary negligence.  Here is the abstract to Matt’s paper:

Regardless of the level of athletic competition, a coach is not an insurer of an athlete’s safety and is not necessarily liable for injuries that occur while coaching a sport. Although coaches generally are not liable for athlete injuries that are ‘‘part of the game,’’ there is potential legal liability if a coach’s action or inaction increases the inherent risks of injury in a sport. To recover damages for an injury, an athlete is required to prove tortious (i.e., wrongful) action or inaction by a coach caused his injury. This chapter provides an overview of the developing law regarding the nature and scope of a coach’s duty to protect the health and safety of athletes participating in youth and high school sports (who generally are minors entrusted to coaches’ custodial care) or college sports (who generally are adults that do not have a custodial relationship with their coaches) and illustrates a coach’s ethical obligation to do so. It also notes that state statutes and judicial decisions may immunize coaches at public educational institutions from liability for negligence that causes injury to athletes, and that pre-injury releases and waivers may protect both private and public school coaches from liability for their negligence.

The paper will be published as a chapter in Ethics and Coaching (Robert L. Simon ed., Westview 2012).




Here’s My Invite, so Friend Me, Maybe? Changing Notions of Privacy in Social Media

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Category: Business Regulation, Labor & Employment Law, Privacy Rights, Public, Tort Law
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I first want to take a moment to thank the Marquette Law School Blog editorial faculty for inviting me to be the alumni blogger this month. I have enjoyed the content the MULS blog has offered since its inception, and I am honored to now be a part of it.

I primarily practice in management-side, labor and employment law in Wisconsin, but I have a special interest in how social media interacts with these practice areas. My posts will focus on various ways that social media collides with the law in this respect and others.

As a side note, I not only observe social media but I am a user, too. You can follow me on Twitter @jesse_dill. I typically Tweet about developments dealing with labor and employment law, Milwaukee, and the occasional grumblings about how my favorite teams are not meeting my perfectly reasonable (read: exceedingly high) expectations.

Social media services like Facebook, Twitter, LinkedIn, FourSquare, Instagram, and the like have quickly become the hot topic in my line of work because of their widespread use among employers and employees. Whether an employer wants to utilize a service for recruiting purposes or try to regulate its use by employees in the workplace, a host of fascinating issues arise while attempting to apply old legal theories to these new devices. Read more »




Your Children’s Ultimate Weapon: Suing You for Emotional Distress?

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Category: Family Law, Public, Tort Law
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In what surely must be one of those “truth is stranger than fiction” stories comes the news that two siblings, one 20 and one 23, sued their mother for intentional infliction of emotional distress from “bad mothering.”

In 2009, Steven Miner II and his sister Kathryn Miner sued their mother, Kimberly Garrity, for emotional distress due to her alleged bad parenting and requested $50,000 in damages.

Although the Miner children grew up in Barrington Hills, Illinois, in a $1.5 million home, they apparently felt deprived of a proper mother.  Read more »




Tort Reform 2011: True Science or Pure Mischief?

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Category: Evidence, Tort Law, Wisconsin Law & Legal System
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Well, that didn’t take long.  In its first week of political life, the new legislature has proposed sweeping “tort reform” legislation.  The compass of the 30-plus page bill is manifold, embracing punitive damages, fee shifting, product liability claims, and damages caps.  What interests me more, however, are proposed changes to the Wisconsin Rules of Evidence governing expert opinion testimony.  For years, some have bemoaned Wisconsin’s failure to adopt the so-called Daubert rule (see below), an often restrictive, ad hoc standard that ostensibly identifies those “reliable” expert methodologies worthy of consideration by the courts.  Unreliable methods, of course, are excluded.  And while courts and commentators still debate how one goes about reliably identifying reliable methodologies, Wisconsin will apparently make up for lost time by not only adopting Daubert, but also go it one better by requiring that expert methodologies be “true” as well as reliable.

True in what sense you ask?  Well, it’s unclear, although I concede it has a nice Old Testament ring to it and the idea that courts should use “true” evidence is appealing in all senses of that word.  While you’re pondering what “true” might mean (and I still am), let me offer some background. Read more »




Reform?

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Category: Health Care, Tort Law
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On November 7, 2010, Senator-elect Ron Johnson was a guest on “Up Front with Mike Gousha.” He made a comment that hit the heart of an issue I have often pondered. This past summer, I had the opportunity to clerk for a law firm that handles primarily medical malpractice actions. So, this conversation sparked my interest.

Mr. Johnson referred to “Tort Reform” and the frivolous lawsuits against medical professionals.  He said that an estimated $2-3 billion dollars was spent on frivolous suits that have forced doctors to practice “defensive medicine” in Wisconsin.  Whether accurate or not that number has raised eyebrows.

The healthcare crisis facing our nation seems to be the driving forces behind the particular interest in frivolous (or at the least possibly frivolous) medical malpractice actions.

 What is tort reform? Generally, tort reform seeks to limit the costs associated with medical malpractice claims by adopting statutory or other regulatory law to limit civil liability. Read more »




Best of the Blogs Part II: Drugs, Immigration, and the Hotel “Death Ray”

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Category: Criminal Law & Process, Human Rights, Immigration Law, Legal Writing, Tort Law
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If that title doesn’t increase readership of my posts, I don’t know what will.

My contribution this week to our “best of the blogs” feature (which I have taken license to interpret as “best of the blogs and other news read online…”) is even more random than usual.

First, the drug-related story that caught my eye in the relatively recent past.  The Daily Beast Cheat Sheet reported on September 27th about a Cato Institute study showing that since Portugal decriminalized drug possession in 2001, drug use among adolescents has fallen, HIV infection rates fell, and addicts have increasingly sought help to overcome their addictions.  The full story was in Time, here. An excerpt: Read more »




Best of the Blogs: Trivial Pursuits Edition

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Category: Intellectual Property Law, Popular Culture & Law, Sports & Law, Tort Law
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This week’s review of blog postings and news stories of note focuses on subjects that might seem trivial, but that interest me nonetheless.

1. Comic Books

My brother and I had an extensive collection of comic books when we were growing up.  We even owned two (two!) mint editions of Conan the Barbarian number 1.  If I still owned that collection today, it would easily pay for the first year of my daughter’s college tuition.

After reaching the age of puberty, I consigned my childhood love of comic books to the “trivial” category of youthful pursuits.  Perhaps that is why I was so delighted to read about the current exhibit at the Lillian Goldman Law Library at Yale University, entitled Superheroes in Court! Lawyers, Law and Comic BooksAs described by John Schwartz in the New York Times, this exhibit includes comic books with a legal setting, contracts and correspondence relating to legal disputes over the ownership of comic book characters, and reports submitted to Congress during the 1950s seeking federal legislation to address the alleged connection between comic books and juvenile delinquency. Read more »




Gulf Oil Disaster — Lessons in Torts and Bailouts

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Category: Environmental Law, Tort Law
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The oil rig explosion that killed eleven workers and causes the daily flow of an estimated 200,000 gallons of oil into the Gulf of Mexico presents a gut check moment on tort policy.  A lot of harm has been and will be caused by this catastrophe, and somebody will bear the cost of that harm. Should it be the responsible parties? the victims? the taxpayers?

American tort law, under the principles of proximate cause and nuisance, tells some victims that they must bear the cost of their own harm because it is either too remote (not a “proximate” cause) or too common (to be compensable, damages from a public nuisance must be “different in kind” from those suffered by others) to require the responsible party to pay. The responsibility of those whose conduct caused the harm must have a “sensible and just” stopping point, according to established doctrine. As a general matter, under common law principles, it is “sensible and just” to cause victims to bear their own costs if the harm they suffer is essentially economic or emotional in nature, as opposed to bodily injury or property damage.

These uncompensated losses often hit the taxpayers as well as the victim.  Read more »