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

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).

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Sentencing and the Limits of Actuarial Risk Assessment

As child molesters go, Cory Reibel seems a relatively low-risk proposition.  He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism.  Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.

The judge’s sentence seems to fly in the face of the science of risk assessment.  Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions.  Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk.  However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.

These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence.  

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Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations

In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining.  More specifically, in Lafler v. Cooper, the Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant.  Meanwhile, in Missouri v. Frye, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer’s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer’s incompetence.

To read Justice Scalia’s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time.  In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court’s earlier decisions and has been widely recognized in the lower courts for years.  Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970′s.

In fact, Lafler and Frye remind me of one of the Court decisions from that era, Henderson v. Morgan (1976).  The comparison is not meant as a compliment.  

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