This abstract provides more detail about the contents of the course as offered in the Spring Semester of 2005. I intend to run the course like a simulated clinical seminar, or (as I prefer to think of it) as a law firm trying to handle real cases. We will work on three case studies or problems that are based on current events, and will address the legal issues involved as though we were preparing the cases for trial. To make the legal problems concrete, we will concentrate on researching and mooting the motions that we expect to occur in the three cases - motions involving any substantive, procedural, or evidentiary issues that we decide to investigate. Each student will represent one interest or party in one of the case studies, but we will all review the issues in all of the case studies and critique each other’s arguments on the motions. The course satisfies Writing Requirement II, so each student will be required to do extensive writing, either supporting or opposing motions.
The first case study involves compensation for the victims of the September 11 terrorist attacks. The analytic problem would be how to decide between seeking compensation under the September 11th Victim Compensation Fund of 2001 and filing a tort suit against the airlines, airport security companies, owners and operator of the buildings destroyed in the crashes, and aircraft manufacturers. Compare, e.g., the final rule on the Victim Compensation Fund, 67 Federal Register 11233 (March 13, 2002), and related materials, with In re September 11 Litigation, 280 F.Supp.2d 279 (Sept. 9, 2003). On the one hand, there is the calculation of damages under the Victim Compensation Fund. On the other hand, there are the costs, delay, likelihood of success, and measure of damages under the tort litigation - including the likelihood of ultimate success on such issues as the duty of care owed by airlines to ground victims, duties owed by landowners to victims of terrorist attacks on the premises, the governmental immunity of the Port Authority of New York and New Jersey, and preemptive effect of any federal statutes and regulations.
The second case study involves the potential for tort litigation in U.S. courts over the abuse of prisoners in situations such as the Abu Ghraib prison in Iraq. Some issues would arise in lawsuits against private security companies, to the extent that such companies might be involved - issues such as court jurisdiction under the Alien Tort Claims Act, a substantive cause of action under the Torture Victim Protection Act of 1991, and the Government Contractor defense. Other issues would arise in lawsuits against the United States, such as immunity from suit under the Federal Tort Claims Act.
The third case study involves an action under 42 U.S.C. § 1983 claiming that the use of excessive and unreasonable force in arresting nonviolent protesters violated their Fourth Amendment rights. (I also hope to consider the underlying charge of trespass to land made against the protesters, as well as the defense of “necessity” that such protesters try to raise, even though those claims arise in a criminal context in most protests.) The § 1983 case study will be modeled on the case of the “Pepper Spray 8” in northern California. That case began in September 1997, when seven environmental activists used “black bear” cylinders to lock their arms together at the headquarters of a lumber company, in protest against logging practices. The protesters could release these devices from the inside, but the police would have a difficult time cutting off the devices from the outside. Instead, police applied pepper spray to the eyes of the protesters, to try to get them to release the devices. The case has led to protracted litigation and two hung juries - one in 1998 (a 4-4 deadlock) and the second in September of this year (6-2 in favor of the plaintiffs). The case involves many issues -- not only proof of “excessive force” under § 1983, but also qualified immunity of state officials (the subject of a Supreme Court certiorari) and the removal of a federal district court judge from the case. I would like our treatment of the case study to consider many aspects of protest-and-arrest litigation.