The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Wednesday, October 31, 2007

The "Outmoded" Tort of Alienation of Affection
Gail Heriot

Here's a not-so-heartwarming story.  Mr. & Mrs. Valentine lived in a small Mississippi town where he worked as a plumber and she worked for a wealthy man named Fitch.  When Mr. Valentine began to suspect his wife of infidelity, she denied it, but a DNA test showed that Mr. Fitch was indeed the father of her baby.  Mr. & Mrs. Valentine divorced, and she married Mr. Fitch, who is said to be worth $22 million.  Her standard of living took a substantial turn for the better, and her ex-husband' s no doubt took a dive.

Everything was just ducky for the newlyweds until Uriah the Hittite  ... uh .... I mean Mr. Valentine sued Mr. Fitch for the tort of "alienation of affection" and was awarded $754,500.  The Supreme Court of Mississippi upheld that judgment, and Mr. Fitch is now asking the U.S. Supreme Court to intervene to protect his right to due process.  (Indeed, he has petitioned the Court to issue a stay, but that request was denied by Justice Nathan ... I mean Justice Scalia.)

Mr. & Mrs. Fitch are so very modern that they have decided to discuss their plight on a national talk show.  On Monday, Mrs. Fitch confessed to millions of  Today Show viewers that the lawsuit has been hard on them, but that "we're trying to keep it as low-key as we can"--purportedly for the sake of their child.  Their attorney, who accompanied them on the show, argued that the tort of alienation of affection is something that "in today's society has no place."

Mr. Fitch's legal argument before the Supreme Court, as I understand it, seems very weak.  He claims that (after Lawrence v. Texas) efforts to regulate consensual sex violate due process.  We seem to have gone from an argument that victimless consensual sex is protected by the Constitution to an argument that all consensual sex is protected, even if it does harm someone.  Call it a constitutional right to adultery. It seems more than a little brazen to me.

Don't get me wrong.  I'm not an enthusiast for the tort of alienation of affection (but that's an issue of state law and not for the U.S. Supreme Court).  I note that almost all states have abolished it with Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah being the exceptions.  The majority of states have apparently concluded it isn't worth the judicial circus it creates, and they may be right.  But something in me is uncomfortable.  With all the litigation out there covering comparatively trivial interests, it seems strange that something as important as marriage and fidelity would be uniquely unprotected.  It seems to me there's a message there somewhere.

For example, the common law provides a remedy for tortious interference with a contractual relationship.  In Lumley v. Gye, a opera house owner was held liable for offering employment to an opera singer on the same night she was contractually obligated to perform at the plaintiff's theater.  How much more important is a marriage than a contract?

Similarly, victims of practical jokes have a remedy in the tort of intentional (or reckless) infliction of emotional distress.  Hence in Wilkinson v. Downton, a man who thought it would be funny to tell a woman (falsely) that her husband had been injured and was in the hospital was sued and forced to pay damages for her emotional upset.  But what's more upsetting--being the victim of such a joke or having your marriage destroyed forever?

Oh well, I suspect my discomfort over this puts me in the minority and that Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah will be changing their laws long before the other 43 states will be changing theirs.  And it is not necessarily my intention to register dissent.  Just ... well ... concern.

October 31, 2007 | Permalink | Comments (12) | TrackBack (0)

Tuesday, October 30, 2007

You tube killer
Tom Smith

But will Hulu have tractor pulls?

October 30, 2007 | Permalink | Comments (0) | TrackBack (0)

Law Professor slap-down!
Tom Smith

Yeah, baby!

October 30, 2007 | Permalink | Comments (0) | TrackBack (0)

My objection is that it is demeaning to pornography
Tom Smith

The phrase "law porn" has become popular.  Apparently it was invented by Pam Karlan and popularized by Brian Leiter.  The phrase is apt in some ways, but I think it vastly overstates the interest of these glossy fliers that appear in faculty mailboxes touting the new hires, recent scholarship, new chairs, etc. etc. of law schools.  The problem is, while food, cars, electronics, sporting equipment, real estate and clothing can be pornographic, I don't think law can.  At least not for me.  I can drool over a Dodge Viper, a Telluride trophy ranch, an Italian food orgy and so on, but I cannot drool over a new chair in commercial law at the University of South Dunderfallow.  I mean, I might feel some professional obligation to feel mildly curious, but that is the very opposite of pornography.  If a pornographic magazine appeared in my faculty mailbox, I would first wonder which of my colleagues thought this would be funny and second worry that I could lose my job for participating too enthusiastically in the marketplace of ideas.  When I get "law porn" I throw it away without even a thought.  Nothing in me resists the impulse to throw it away.  It's not pornography.  I know it when I see it.

October 30, 2007 | Permalink | Comments (6) | TrackBack (0)

Monday, October 29, 2007

Amazing fire video
Tom Smith

Lyons Peak, about 8 miles east and a little south of my house, was directly in the path of the Harris Fire.  As the fire crawled north, I could watch its progress through a camera linked to the Web.  JamulBlog provided the link, which in turn provided real time intelligence about where the fire was (damn close and closer by the hour).  On the one hand it was terrifying to watch it burn ever closer, but on the other hand, I could see that it had not gotten to my house yet.  This provided much more precise information than anything I could get from the television news channels, for instance.  The link above leads you to a dramatic time elapse movie of the progress of the Harris Fire.

Today as I drove home I could see the hillside on the south side of Skyline Truck Trail, off of which I live, was burned over.  But for the structure protection by the fire fighters, several or many houses would have burned.  But for their holding the line on this northern flank of the fire, the fire could and probably would have burned through North Jamul and on into Rancho San Diego and perhaps El Cajon and La Mesa, which are densely populated areas.

October 29, 2007 | Permalink | Comments (1) | TrackBack (0)

Sunday, October 28, 2007

Happy Halloween from your Contracts professor
Tom Smith

Ick.

Via volokh.

One year I taught the Stambovsky case, and a woman from Nyack, NY, where the reputedly haunted house was located, said that she knew for a fact that the house was indeed haunted.  She was one of my best students that year, so not a flake.  I don't recall that she said she had actually seen a ghost.

I once visited a famously haunted cemetery in Idaho City, Idaho with one of my best friends from high school (who may be reading this!).  We left rapidly after we got there, I at least having experienced a very strange subjective impression of disembodied but extreme malice.

October 28, 2007 | Permalink | Comments (2) | TrackBack (0)

Saturday, October 27, 2007

Akaka Bill: House of Representatives Fails to Muster Enough Votes to Overcome Promised Veto
Gail Heriot

The ill-considered proposal for a Native Hawaiian Government Reorganization Act (known in the Senate and elsewhere as the  "Akaka Bill") was brought to a vote in the House of Representatives on Wednesday.  It passed--but the margin was 216-153.  Mercifully, Bush's spokesman has said he will veto it, and the vote was insufficient to overcome such a veto. 

The vote was largely party line.  All of the nays came from Republicans, except one--Maxine Waters.  (Bless her.  She and I finally found something we could agree on.)  Most of the yeas came from Democrats.  There were, however, 39 defectors among the Republicans.  The 39 were:

Rob Bishop--Utah, Mary Bono--Calif., Virginia Brown-Waite--Florida, Ken Calvert--Calif., Chris Cannon--Utah, Tom Cole--Okla., Tom Davis--Va., Phil English--Penn., Mary Fallin--Okla., Wayne Gilcrest--Md., Ralph Hall--Texas, David Hobson--Ohio, Timothy Johnson--Illinois, Joseph Knollenberg--Mich., Ray LaHood--Illinois, Stephen LaTourette--Ohio, Frank LoBionda--N.J., Frank Lucas--Okla., John McHugh--N.Y., Candice Miller--Mich., Tim Murphy--Penn., Steve Pearce--N.M., John Peterson--Penn., Jon Porter--Nev., Ralph Regula--Ohio, Dennis Rehberg--Montana, David Reichert--Wash., Rick Renzi--Ariz., Thomas Reynolds--N.Y., Jim Saxon--N.J., Christopher Shays--Conn., Mike Simpson--Idaho, Chris Smith--N.J., Mark Souder--Indiana, Michael Turner--Ohio, Greg Walden--Ore., Jerry Weller--Illinois, Heather Wilson--N.M., C.W. Bill Young--Fla. 

Nine Republicans did not vote, including San Diegans Brian Bilbray, Duncan Hunter, and Darrell Issa, all of whom were probably dealing with the fires here in town, and Bobby Jindal, who was probably dealing with the election in Louisiana.

UPDATE:  Maxine Waters states in the Congressional Record that her "nay" vote was cast in error.  She intended to vote in favor of the bill.

                                                                                                                           

October 27, 2007 | Permalink | Comments (2) | TrackBack (0)

New York Times advises: War on Fire cannot be won
Tom Smith

And they don't seem to be kidding.  Towards Mother Nature, we must adopt a defeatist attitude.  Otherwise, only tragedy can result.  The enemy is not fire.  No, of course not.  It is ourselves, for choosing to live in places where Nature in her wonderfulness sends fire and so on and so forth.  Let me guess.  We should all live in little state-designed houses connected by mass transit powered by windmills.  Otherwise, the professor of forestry at the U-Wisconsin Au Claire will be most unhappy.  Indeed, we are all doomed.  Furthermore, every time one of these developments goes up in the Deadly Middle Class Fire Zone of Death, which is everywhere east of Brentwood, millions of rodents are displaced, not to mention snakes, and global warming is committed.  These poor deluded souls should be made to realize that they don't need their little yards, which are just pseudo-agricultural plots you know, and instead they should live in stylish little condos in West LA or better yet the Upper East Side.

I have another idea.  Let's have 747 tankers, building materials that can survive nuclear fusion, more fire fighters, more fire trucks, more anti-fire landscaping.  More helicopters, more coordination, more technology and more insurance.  Yeah, Mexico lets it burn and there fires are therefore smaller.  And they are also a very poor country.

Just out of curiosity, is there a battle the NYT thinks can be won?

October 27, 2007 | Permalink | Comments (4) | TrackBack (0)

It's Raining in San Diego
Gail Heriot

No, it wasn't a lot of rain.  But after five days of fire, even a few tiny drops felt good as I was walking to my car in the grocery store parking lot.  The tear that welled up in my eyes may have been a bit larger and wetter, but I'm willing to take whatever rain I can get.   

October 27, 2007 | Permalink | Comments (0) | TrackBack (0)

Iraqi Army makes donation to San Diego fire victims
Tom Smith

This is interesting.  An Iraqi Army unit raises money to help San Diego fire victims.

October 27, 2007 | Permalink | Comments (0) | TrackBack (0)