Robert Bork redux

War Room: Salon:

It has been 20 years since his contentious Supreme Court confirmation hearings, but Robert H. Bork, it seems, is back.

Somehow, the 80-year-old conservative judge, author and intellectual has managed to land in the spotlight several times this month. On June 7, the tort reform crusader who has derided the 'lottery-like windfalls' in civil lawsuits, filed a $1 million lawsuit of his own against the Yale Club of New York City after he slipped and fell while stepping up to a club lectern to deliver a speech....And today, from 9 a.m. to 7 p.m. EDT, Bork was feted by the Federalist Society. The event, attended by about 200 people at $100 a head, included speakers such as Reagan Attorney General Edwin Meese and University of California at Berkeley professor John Yoo.

The mood was jovial.

Bork's current affairs were officially ignored by most speakers, but attendees -- a dark suit and pantyhose bunch -- couldn't help whispering about the latest adventures of the man whose name has become, as Meese put it, "a noun, a verb and an adjective." Federalist Society president Eugene Meyer joked that he'd had a passing worry the guest of honor might be wary of speaking in ballrooms for fear of his past injury rate. When George Priest, who took over Bork's antitrust class at Yale Law School, admitted that Bork routinely said horrible things about Yale, and "has now added the Yale Club" to his list, he got a muted chuckle from a clearly uncomfortable crowd. How do you respond, exactly, when your hero has seemingly committed public hypocrisy by embracing the civil lawsuits he once opposed?...

"Bork was savaged because he was honest," said Jonathan Turley of George Washington Law School. "His hearings were refreshingly truthful, direct and substantive," the opposite, as he sees it, of the "contentless" confirmation of John Roberts, who Turley described as looking as though he were "raised hydroponically in the basement of the White House."

To say that recent confirmation hearings have been a disingenuous travesty (witness recent Supreme Court decisions) is not to say that on the merits, Bork should have been confirmed...unless your worldview is that of the Federalist Society.

Testing the limits of forum bashing

Testing the limits of forum bashing: two law students sue over personal attacks: By Jacqui Cheng

Two law school students filed a lawsuit against the administrator of a web site and 28 of the site's users last week for psychological and economic injury. The two plaintiffs, anonymously listed as Doe I and Doe II, are female students at Yale Law School and claim that the users of a third-party law school message board have consistently and regularly made such disparaging remarks about their characters that it has cost them not only their emotional wellbeing, but internships and jobs. And despite repeated requests to remove the offensive posts, the site's administrators continually refused to do so....

Ciolli and the AutoAdmit gang may not exactly have precedent on their side either. A student blogger from UC Berkeley recently lost a defamation case brought against him by journalist Lee Kaplan last week. The student, Yaman Salahi, had set up a blog called Lee Kaplan Watch in which Salahi cited articles written by Kaplan and publicly disputed various claims. Kaplan sued Salahi for business interference and libel, which Salahi lost in small claims court not once, but twice. On his blog, Salahi argues that because he was sued in small claims court and not a "real" court, he was unable to take advantage of California's anti-SLAPP—Strategic Lawsuits Against Public Participation—protections. "I have absolutely no doubt that had this lawsuit been filed in a real court, I would have won," Salahi wrote.

Doe I and II are asking for punitive damages in the amount of $245,000 as well as unspecified actual and special damages. The complaint also requests that the threads be permanently removed from AutoAdmit and that the administrators authorize Google to permanently remove cached versions of the threads.

Some experts believe that this case will go a long way towards testing the legal limits of anonymous Internet postings. University of Texas law professor Brian Leiter told Reuters that "the most vile posters on that board are two subpoenas away from being outed," which he says led to "much amusement" by AutoAdmit posters. "But they are about to find out that this is how it works," he added ominously.

Needless to say, this is already getting plenty of attention on the blogosphere.
Maybe the students can be represented by Robert Bork, now that he's more open to tort actions, especially those involving Yale.

Bork v. Bork

New York Times (Editorial):

There are many versions of the cliché that “a conservative is a liberal who has been mugged,” and Robert Bork has just given rise to another. A tort plaintiff, it turns out, is a critic of tort lawsuits who has slipped and fallen at the Yale Club.

Mr. Bork, of course, is the former federal appeals court judge who was nominated to the Supreme Court in 1987 but not confirmed by the Senate. He has long been famous for his lack of sympathy for people who go to court with claims of race or sex discrimination, or other injustices. He has gotten particularly exercised about accident victims driving up the cost of business by filing lawsuits. In an op-ed article, he once complained that “juries dispense lottery-like windfalls,” and compared the civil justice system to “Barbary pirates.”

That was before Mr. Bork spoke at the Yale Club last year, and fell on his way to the dais, injuring his leg and bumping his head. Mr. Bork is not merely suing the club for failing to provide a set of stairs and a handrail between the floor and the dais. He has filed a suit that is so aggressive about the law that, if he had not filed it himself, we suspect he might regard it as, well, piratical.

Mr. Bork puts the actual damages for his apparently non-life-threatening injuries (after his fall, he was reportedly able to go on and deliver his speech) at “in excess of $1,000,000.” He is also claiming punitive damages. And he is demanding that the Yale Club pay his attorney’s fees.

We can imagine what Mr. Bork the legal scholar would ask if he had a chance to question Mr. Bork the plaintiff. If it was “reasonably foreseeable” that without stairs and a handrail, “a guest such as Mr. Bork” would be injured, why did Mr. Bork try to climb up to the dais? Where does personal responsibility enter in? And wouldn’t $1 million-plus punitive damages amount to a “lottery-like windfall”?

Since we believe in the tort system, when properly used, all we would ask is whether Mr. Bork’s unfortunate experience at the Yale Club has led him to re-evaluate any of the harsh things he has said in the past about injured people, much like himself, who simply wanted their day in court.

This is so delicious I'm quoting it in full. In the spirit of the piece, I think it constitutes "fair (ab)use."

Robert Bork sues Yale club over injuries

Yale Daily News :

Law School professor Peter Schuck said the central point of contention in the case will likely be proving whether or not the Yale Club was negligent in failing to provide stairs to the dais. Bork will try to prove that the club violated a well-established custom of providing stairs, he said, while the club will likely counter by asserting that there was no such custom, that the accident was Bork's fault, or that he assumed the risk of falling.

'He will probably have to try to overcome two defenses,' said Schuck, who includes tort law among his major fields of teaching. 'One is comparative fault, which would be based on the idea that even if Yale was negligent, he was also negligent in having observed the height of the dais and then not asking for assistance, such as steps, to reduce the risk. The other defense is assumption of risk, Yale's claim being that he observed the risk and decided knowingly to take it without assistance.'...

Schuck, who was on the Yale Law School faculty with Bork for a very brief period from 1979 to 1980, said he believes Bork should have been confirmed for the Court seat on the basis of his intellectual merits and academic work. But he said Bork has harbored a grudge against the law school since the confirmation battle.

"I think his having elevated his defeat into a now 20-year crusade of resentment and fury seems rather churlish," Schuck said. "I certainly sympathize with his anger in having been defeated in his bid for a seat he had every reason to believe he deserved, but I think that this is in the nature of modern-style high Supreme Court nomination politics, and he should get over it."

(Time stamp artificial)

Bork v. Yale Club: Jurist Seeks Redress Over a Fall - New York Times

From The New York Times:

"Mr. Bork has been known to chuckle during speeches when he cites a bit of popular wisdom that he says he once saw on a bumper sticker: “Save America. Close Yale Law School.”"

I hope he loses his law suit. Preferably on a technicality. Even better: something like assumption of the risk. It would serve him right.

Bork Cites 'Wanton' Negligence in Suing Yale Club for $1-Million

The Chronicle: Daily News Blog: Robert Bork Cites 'Wanton' Negligence in Suing Yale Club for $1-Million: "Robert Bork Cites 'Wanton' Negligence in Suing Yale Club for $1-Million

Irving Kristol once defined a neoconservative as a liberal who had been mugged by reality. By the same token, can a liberal be defined as a neoconservative who had suddenly found a need for the tort bar?

We may find that out in a Manhattan court, where Robert H. Bork — the Supreme Court nominee rejected by the U.S. Senate in 1987 — filed a $1-million lawsuit today against the Yale Club of New York City, whose negligence, he says, was to blame for injuries he suffered in a fall at the club a year ago.

Mr. Bork, who is 80, said in the lawsuit that he had suffered injuries to his left leg and his head when he tripped while stepping onto a dais at the club to address a gathering sponsored by The New Criterion, a tradition-minded monthly journal of culture. According to the Associated Press, the suit accuses the Yale Club of “wanton, willful, and reckless disregard for the safety of its guests.” The suit, which cites the “excruciating pain” he has experienced during a recovery that continues, seeks damages for pain and suffering, medical treatment, lost work time, and lost income.

Mr. Bork, a former federal judge, first drew public attention in 1973, when he fired the Watergate special prosecutor at the behest of President Richard M. Nixon. He currently holds posts at the Hudson Institute, Stanford University’s Hoover Institute, and the Ave Maria School of Law. He has written on many subjects, including the need for tort reform.

I try not to take pleasure in the pain of others. There is, nonetheless, a certain ironic charm pervading this report.

My torts professor at Yale, Guido Calabresi (now a federal judge, although he continues to teach torts), tended to speak well of Bork in those years (as he did of most Yalies). Not sure whether that changed over the years, as Bork became a more embittered and pathetic figure. I wonder what emotions pass over his wise and knowing countenance as he encounters this story.