I keep encountering interesting and novel questions in my Information Law and Policy class that have a political component, even though they're not exactly on the usual left-right spectrum we all know and hate.  I thought I'd post a few of those questions here, paraphrased from my reading.  I don't have a strong opinion about what the answers "should" have been -- the questions seem very difficult to me -- but I have provided the answers given by the courts.

Questions this week:

Let's say you go to the bookstore and buy a cookbook.  You find a recipe that contains an unusual ingredient, which, in the process of preparing the recipe, you happen to taste.  It turns out that this ingredient is poisonous uncooked and you become severely ill.  The cookbook did not warn you that this ingredient was poisonous.  Who can you sue?

A) The author
B) The publisher
C) The bookstore

The courts' answer: ((None of the above.  Unlike the distributor of a "product" such as a microwave oven, which must be clearly labeled as to proper use, distributors of "information," like recipes, don't have responsibility for the accuracy of what they publish.  The publisher and the bookstore are definitely immune under current law, and the author probably is as well.  This case is expanded a little from Cardozo v. True, 1977.))

Okay, let's up the ante.  You go to the bookstore and buy a diet book entitled "When Everything Else Fails . . . The Last Chance Diet."  Under this diet, you eat nothing but liquid protein.  You administer this diet to yourself under the supervision of a doctor.  You lose 100 pounds in six months before dying of cardiac arrest.  The diet is definitely the cause of your death, and you are not medically unusual; the same could have happened to anyone who followed the diet.  Can your next of kin sue the publisher?

The courts' answer: ((No.  This one is Smith v. Linn, 1989.  The court concluded, with much wailing and gnashing of teeth, that there is no such thing as negligence by a publisher that is not an author.  The book falls under First Amendment protection because if publishers were liable for false facts that they published, it would have a chilling effect on the propagation of ideas.))

Let's up the ante even further.  You are an airline and you contract with a company that manufactures navigational charts.  You furnish your pilots with these charts.  The charts present information in both pictures and text.  Both pictures and text are accurate, but the pictures are drawn to different scales, which makes them misleading if you don't read the text.  One of your pilots misreads a chart, relying on the pictures without understanding their scales.  As a result, he crashes a plane and everyone aboard dies.  You get sued into the Stone Age by the passengers' families.  Can you sue the chart's manufacturer to recover the damages?

The courts' answer: ((Yes.  The difference between this case and the others is that in the previous cases, the information itself was incomplete or misleading; there was nothing wrong with the physical books it was contained in.  In this case (adapted from Aetna v. Jeppesen, 1981), it was the product -- the chart -- that was misleading, not the information.  Liability laws apply to defective products, not to defective information, so the manufacturer is liable -- though the airline also bears some responsibility in that its pilot behaved negligently.))

Just thought I would share, and organize my own thoughts in the process. 

OnlyInThisLight wrote:

Sat wrote:

Cardozo v. True, 1977

Well, there goes my case against Glenn Beck.

I am using this in my paper.

Giovanna wrote:

The grey area here seems to be the concept of information versus physical product, but there are many situations in health care where the consumer is purchasing information in the form of knowledge and informed decisionmaking.

You're describing services here, and services, interestingly, fall into an entirely different area of the law (tort malpractice).  I think this week's authors would explain that publishers aren't liable for disseminating misinformation, but people can be liable for misusing information.  The First Amendment's free-speech clause doesn't protect what people do, only what they say.  Interestingly, though, "advising" counts as doing rather than saying.  It's reasonable to conclude from this week's reading that a doctor can be sued for giving a patient false medical information ("advising"), but Oxford University Press can't be sued for printing the same false medical information in a textbook ("publishing").

Speaking of which, another case happens to involve a nursing student and a medical textbook!  The textbook said that hydrogen peroxide enemas are good for relieving constipation.  The nursing student, who had nineteen courses under her belt, decided to give herself one.  "As a result," as one author charmingly puts it, "she suffered personal injury."  Jones v. Lippincott, 1988, and no, she didn't get any money. 

Giovanna wrote:

That said, there's the further question of coercion. Research trials protect their ass having subjects sign waivers, but I should think a few have successfully sued by playing the 'but they misled me!' card.

Another charming term used by legal scholars is "in terrorem."  If you closely examine the copyright page in most books, you will discover that (in addition to asserting copyright) it contains a license prohibiting you from reproducing or transmitting any part of it without the written permission of the copyright owner, the publisher, and Major League Baseball.  This license is arguably bullshit and no one ever enforces it above and beyond ordinary copyright, but an angry publisher can try to terrify someone who quoted their book in a way they didn't like by pointing to it and threatening to sue.  It looks legal, doesn't it?

I think it's possible that research waivers mostly have an in terrorem effect; they make you think the law is on the researchers' side, even if an actual court might say you were misled, rushed, or forced into signing the waiver.  Courts can override contracts when they think an important public policy is on the line, and they do this all the time.

Last edited by satyreyes (06-21-2010 10:10:07 PM)

Nah, it's just politics. This is absolutely in the right place.

Yeah, it's a bit of a back-door thing, but that's how Teddy Roosevelt became president. I'm still not really decided on whether that was an awesome thing or a terrible thing, but he was the biggest thing to happen to American politics since the civil war either way. Too bad for Mr. Rudd (bit of a red theme going on there), it sounds like he got a bit of a raw deal, but then I haven't been following Aussie politics, he may be a jerk for all I know. Or should I say "right berk" instead? You guys and your language...

Also, ranga is great. I will now commence calling Clarice that.

sharnii wrote:

Making it a 3/3 chick grand slam: The Queen (of England), the Governor General, and the PM.

That's so cool!

purplepolecat wrote:

...when the corrupt and unpopular Brian Mulroney stepped down.

... you know, I just realized that it is possible for first-line politicians to step down when they become incredibly unpopular. Apparently that's what they do in actually civilized countries like Canada or Australia?

Spanish politicians do not resign. At least, not on the top level (prime ministers, ministers, regional presidents). They are glued to their seats and prefer to force everyone else under them to resign than resigning themselves, something they only do when they are granted an equal or higher seat. A top man being kicked out by his own party? Never seen it, it would go against all the rules of party discipline. (... )

Maybe now we are closer to it than never before, because Zapatero's popularity is thinner than a sheet of paper. I wonder who they would replace him with, though.

Resurrecting this thread for breaking news!  Many of you will have already heard, but President Obama has just decided to quit defending the "Defense of Marriage Act," the 1996 law that forbids the federal government from recognizing same-sex marriage.  The law had been found unconstitutional in a couple of separate lawsuits in federal courts, but never at the Supreme Court level, and so there was a lot of legal uncertainty about whether the federal government can go around saying "we'll marry straights but not gays."  Obama's administration had been appealing these decisions -- as the government almost always does when a court finds a law unconstitutional -- but today Obama instructed the Department of Justice to drop the appeals and agree that DOMA might be an unconstitutional law.  (His reasoning is that, just as we demand that laws not discriminate on the basis of race or sex when it can reasonably be avoided, we should demand the same about sexual orientation.)  In theory, this is likely to mean that the federal government has to recognize all same-sex marriages that are recognized in their own states.  In practice, it might not be a nationwide recognition, and it is possible that the House of Representatives will file a suit to replace the Department of Justice as parties to the case, and they'll proceed with the appeals process.  If this happens, the results might be rather good.  I'm not a lawyer, but it seems likely that Obama's determination that sexuality is a "protected class," like race and sex, will carry some weight with the justices, especially the conservative ones who believe in rather sweeping presidential power.

I'm thrilled with Obama's decision -- this is a really important victory for one of the few unambiguously good causes in the United States today -- but I'm also nervous about the way it was done.  Bad laws are supposed to be either repealed by Congress or overturned by the Supreme Court.  It is dangerous to let the President say, "you know what, this is an unconstitutional law and I refuse to defend it."  Because you know that the next time there's a Republican president, he or she is going to, A), say "wait, DOMA was constitutional after all and I declare that homosexuals are no longer a protected class," and B), say "but you know what's not constitutional?  This health care law."  Letting a president do that sort of thing is not far off from giving them a final veto over every law ever passed.  There are good reasons that we give the power to make and overturn laws to slow-moving bodies like Congress and the Supreme Court: we don't want everything to change every time there's an election.  I feel terrible about this, but the civics wonk in me really wishes Obama had played this one by the book.  (I'm saying this because someone has to, and everyone else in the world is either "this was good for gay marriage and therefore GOOD IN EVERY WAY" or "this was good for gay marriage and therefore BAD IN EVERY WAY.")

But he didn't, and I'd be lying if I said I'm not overjoyed about it.    DOMA is likely to hang in limbo for a little while, while the courts figure out who, if anyone, has the power to appeal those cases if the Department of Justice won't.  If no one else can appeal, or if they can but don't want to, then DOMA will be sort-of-repealed.  Because the Ninth Circuit is among the courts that has found DOMA unconstitutional, the federal government would have to recognize all same-sex marriages in the western states -- including California.  Massachusetts' District Court has also found DOMA unconstitutional, so the government would have to recognize same-sex marriages there.  But in the other states with same-sex marriage, including Iowa, Connecticut, Vermont, and New Hampshire, there haven't been any court rulings about DOMA.  And because the president can't simply declare a law unconstitutional, the federal government will likely continue to deny recognition to marriages in these states.  At some point we are still going to need the Supreme Court to step in and say what's what.  But in the meantime, things seem to be looking up for same-sex couples in California and Massachusetts in the immediate future, and for everyone else in the longer term

Last edited by satyreyes (02-23-2011 07:44:08 PM)

taiki wrote:

In previous defenses, in a given circuit, there was precedence established to defend part or all of the law, and as such, the Obama administration was forced to defend this law in court in that district based on established precedence.  However, in the Second Circuit, there was no such precedence, and any challenges to the law would be defeated and any challenge in court would be pretty much over, unless as with California's Prop 8, anyone who wants to defend this piece of godawful legislation will have to do it on their own dime and no support from federal defense attorneys.

That was the legal pretext, but the administration didn't just drop the defense in the Second Circuit -- they dropped all their DOMA cases.  They didn't have to do that in jurisdictions where the right standard of evidence was already determined.  The Attorney General's rather disingenuous letter on the subject made it sound like the administration had never considered before whether homosexuality ought to be a protected class, which is legally correct but politically impossible.  They took the opportunity presented by the Second Circuit case as an excuse to do something they wanted to do all along, namely drop support for DOMA, and while I applaud their motives, the fact remains that it sets a bad precedent for an administration not to defend laws it doesn't like.  As I said, next there will be a court case about a law we like, and President Romney will say "in preparing our legal case we concluded that the law was unconstitutional in the first place, so we're not defending it."

I'm really glad myself.  DOMA's a giant constitutional crisis as are state DOMAs.  However, I'm pretty confident once the federal DOMA statute falls on various different grounds, individual state DOMAs will fall apart too.

I hope you're right.  But individual state DOMAs are almost all written into their constitutions now.  You'd have to make it a federal constitutional issue, and while the Supreme Court might be ready to say that DOMA is unconstitutional because of the Tenth or Fourteenth Amendment, I don't know whether they're ready to say that the same reasoning extends to the states.  Maybe they are.  I hope so.

Last edited by satyreyes (02-23-2011 09:11:04 PM)

So the  Tories and LibDems are cutting like an emo with ADHD: left, right and centre. I'd be less bothered if this didn't mean a rash of people turning to the small hardline parties, i.e the nationalists, isolationalists, and nutters.
Fuck this.

Do not get me started on Ireland's austerity measures. The country saw the biggest boom in its history, which made many people have decent incomes, and made the rich INCREDIBLY super-rich. And now, what, you'll keep cutting my social welfare because some posh arseholes, who'll never have to worry about where the next meal is coming from, decided to gamble with money that wasn't theirs? Eff it all I say.

I think the BNP and national front are all very scary people over in Britain, but luckily there's a lot of people willing to fight them. In the last UK election, the only sign of hope I saw was how in some areas (like Stoke), there was an agreement between all the parties to try to counteract the BNP, and in fact they LOST seats in the last election, rather than gained. This is a good sign, I feel, that people are not letting government scaremongering turn them completely towards the far right.

I really wish the Republicans had taken a majority in the Senate and not the House. At least Senate Republicans are more willing to compromise. House Republicans are kind of scary.

Tuo, thank you for this post!  I'm pretty ignorant when it comes to EU politics, and completely ignorant about Finnish politics, so this is probably going to sound like a silly question, but why do people like the True Finns want to withdraw from the EU?  From way over here in America, it seems like the EU has helped boost European competitiveness and relevance, so I'm interested to hear what kinds of problems some Finns feel the EU causes.