http://www.abajournal.com/news/article/evolve_law_to_merge_with_above_the_law_in_2018

http://www.xoxohth.com/thread.php?thread_id=3773653&mc=22&forum_id=2

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797059)

Lat: 9CA clerk, Wachtell, AUSA

Mystal: Harvard Law, couple years in biglaw

Patrice: JD, some mysterious legal experience a few years earlier that obviously didn't take

Rubino: Part time doc reviewer

Stacey: TTTT grad, didn't even bother to take the bar

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34804796)

The halcyon Bush years

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797098)

"nice azngirl Lat's mom is trying to set him up with." Forget what the moniker was.

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797139)

Elie here. On Wednesday, I took a closer look at the woman who called the Cambridge police on Harvard professor Henry Louis Gates Jr. I wondered if she could be held liable under a good Samaritan statute, and asked if we should hold good Samaritans to a higher standard. Most readers felt that the woman […]

By David Lat & Elie Mystal

Jul 24, 2009 at 12:10 PM

Skip Gates.jpgElie here. On Wednesday, I took a closer look at the woman who called the Cambridge police on Harvard professor Henry Louis Gates Jr. I wondered if she could be held liable under a good Samaritan statute, and asked if we should hold good Samaritans to a higher standard.

Most readers felt that the woman was beyond reproach. She saw “two black males with backpacks” attempting to enter a house, and most people — including Professor Gates and President Obama — felt she acted appropriately when she called the police.

Legal Blog Watch has published a great analysis suggesting that Gates’s arrest was unwarranted. Even if you take the police officer’s word about what happened inside the house, it was unlikely that a prosecution against Gates for disorderly conduct could have survived (at least based on the evidence we have now; there are rumors of tapes).

I understand that I am hanging far out on a thin limb, but I remain far from convinced that the woman acted appropriately. I do think, hypothetically, that there is a cognizable legal claim Professor Gates could have against the woman who turned him in. Here is the applicable Massachusetts “good Samaritan” statute:

Chapter 258C: Section 13. “Good Samaritans”; liability

Section 13. No person who, in good faith, provides or obtains, or attempts to provide or obtain, assistance for a victim of a crime as defined in section one, shall be liable in a civil suit for damages as a result of any acts or omissions in providing or obtaining, or attempting to provide or obtain, such assistance unless such acts or omissions constitute willful, wanton or reckless conduct.

On Wednesday, I suggested that the standard for liability was reasonableness, as opposed to “willful, wanton or reckless conduct.” Obviously, a recklessness standard is much more difficult to prove.

But after the jump, I make my case. And then Mr. David Lat slaps me upside the head makes his case … that I need to be Rule 11-ed right back to Tolerance 101.

ELIE’S ARGUMENT

Let’s start with the easiest arguments, Gates was the victim and he suffered damages. The Cabbed Caller was attempting to help Gates, by protecting his house from a possible break-in, yet through her efforts Gates suffered more harm. Arguably the reputational and psychological damages Gates suffered far outstripped the financial damages he would have suffered had there been an actual break in.

Now, yes, I understand that good Samaritan laws have been erected as a shield to protect citizens who try to help from overly litigious victims. But that doesn’t mean that they’ve completely eviscerated the opportunity for victims to get a judgment against a person who was trying to help, but caused more harm than good.

Okay, I can hear all of you screaming about the “intervening cause” of the police officers. Even people sympathetic to Gates believe that if anybody is liable, it is the cops, not the Cabbed Caller.

But that’s how I get to the Cabbed Caller’s recklessness in calling the police in the first place. It’s not intervening if you could reasonably foresee the actions that would result from your conduct. Could the Cabbed Caller have reasonably foreseen that calling the cops would lead to the arrest of whomever was in the house? I say yes. Where there are other actions that a reasonable person could have taken instead of bringing in the shock troops? I say yes.

Was it therefore reckless to call the cops in the first place? Well, for that I’d want to depose the witness. I’d want to know if she had any reason, at all, to believe that the cops would behave appropriately. And then I’d want to know if she had any reason, at all, to believe that the cops would behave appropriately when confronted by “two black men, with backpacks.”

Because if there is willful and wanton recklessness here, it rests with this person’s belief that the police would behave appropriately towards a black man in a Cambridge suburb after being “tipped” that there was a B&E in progress. I know that point angers people of all races — especially perhaps those who think we are just a few steps away from living in a happy racial utopia where justice is truly blind.

But justice is not blind, not even close, and at some point it becomes aggressively dangerous to pretend that it is. The Cabbed Caller knows, or should have known, that the police would overreact to the situation she presented them with. It was incumbent upon her to take her head out of the sand and engage with the world as it is, not as she would like it to be.

Her failure to do so, her decision to put her faith in the Cambridge police when there were other options at her disposal, constitutes recklessness. At least, that’s the argument.

Now, even though I don’t have ready access to case law — Above the Law is still waiting for its free Lexis and Westlaw passwords — I’m pretty sure that no court has ever held a person liable for calling the cops. The societal incentive for reporting crime probably outweighs the incentive to protect black people from police harassment. But just because it hasn’t happened yet doesn’t mean it won’t happen in the future. The laws are already there, and we are making progress.

Someday, it will not be okay to call the cops on any black person that appears in your neighborhood.

LAT’S RESPONSE

Elie, I don’t mean to be rude, but I am deeply frustrated. Your “Good Samaritan” argument is, quite frankly, ridiculous and embarrassing. I am glad to have this opportunity to clarify that, although it appeared on the site that I founded, I do not endorse it in any way, shape or form.

I am all in favor of occasionally “baiting” the readers — I do it a lot myself — but let’s do so intelligently. Lawyers — i.e., our readers — hate it when legal concepts are abused or used imprecisely (which is more often your problem).

With respect to this “Good Samaritan” analysis, however, we’re looking at a case of outright abuse, not mere imprecision. You’ve already been thoroughly spanked by the commenters, but I’m happy to add a few whacks of my own.

I don’t know where to begin — your analysis is even more trippy than the most whacked-out legal theories I was served up by professors at Yale Law School — but here are a few observations:

1. Good Samaritan laws are shields, not swords.

You write: “Now, yes, I understand that good Samaritan laws have been erected as a shield to protect citizens who try to help from overly litigious victims.”

You preemptively acknowledge a number of the arguments against your position, which is a clever rhetorical move. But to acknowledge an argument is not to refute it, and this is a perfect example.

Maybe some judicious use of capitalization will convey my point. Good Samaritan laws, including the Massachusetts statute you cite above, are SHIELDS, NOT SWORDS. They do not give rise to liability or causes of action, which is why — contrary to your suggestion — it is IMPOSSIBLE to find someone “liable under a good Samaritan statute.” You might find someone not entitled to the immunity from civil suit that a GS law offers, but the GS law itself does NOT establish liability.

If you want to question the conduct of the woman as an ethical or moral matter, and argue that “the Good Samaritan here wasn’t that good” (a la the Kaye Scholer Mom case), then fine. But don’t drop the L-bomb — i.e., bring in the law, legal concepts, and terms of art — unless you have a solid basis for doing so. I challenge you to find a case in any U.S. jurisdiction in which someone who placed a call to the police or 911 got in trouble under a Good Samaritan law because the police then acted inappropriately.

(You preemptively acknowledge, supra, your belief that “no court has ever held a person liable for calling the cops. The societal incentive for reporting crime probably outweighs the incentive to protect black people from police harassment.” EXACTLY — I couldn’t have said it better myself.)

2. There is no basis for a negligence suit by Gates against the Cabbed Caller.

Since the Massachusetts Good Samaritan statute provides no independent basis for liability, Gates would have to sue the Cabbed Caller under some other legal theory. It seems that you are arguing for a negligence claim, so I’ll respond to that (without considering alternate theories of liability).

You start with the question of damages, which is telling: “Gates was the victim and he suffered damages. The Cabbed Caller was attempting to help Gates, by protecting his house from a possible break-in, yet through her efforts Gates suffered more harm.”

Umm, shouldn’t we start with the question of liability?

I don’t think you’ve established your prima facie case here, Elie. You attempt to preemptively refute some of the arguments against liability, but you never establish liability in the first place (which is your burden, or Gates’s burden as the plaintiff).

The Cabbed Caller did not act unreasonably, and certainly not “wantonly” or “recklessly,” in calling the police. Professor Gates and President Obama have conceded as much. If you see two men, of any race, trying to force open the door to a house, it is not unreasonable to call the police. If anything, it would be unreasonable not to call the police.

Could the Cabbed Caller have taken other steps — e.g., walking up to Gates’s doorstep to investigate further, ask “what’s going on here,” etc. — that perhaps she wishes she had taken in hindsight? Sure. But it was certainly reasonable for her to leave this to the experts and call the police.

If anything, that decision — the decision to call the police, rather than to thrust herself into the situation directly — should be protected by a Good Samaritan law. She made a phone call that, in hindsight, she probably wishes she hadn’t made; but she did so in good faith, so she should be protected.

You then ask: “[Was it] reckless to call the cops in the first place? Well, for that I’d want to depose the witness. I’d want to know if she had any reason, at all, to believe that the cops would behave appropriately.”

Umm, why shouldn’t the question be whether she had any reason to believe the cops would act INappropriately? We’re not talking about the LAPD here. This is the People’s Republic of Cambridge, where even the cops buy their groceries at Whole Foods.

One other interesting point. I haven’t confirmed it myself, but according to one commenter:

Mass. bar studier here: Generally, reports made to police officers about potential crime are privileged if made in good faith. I don’t know what “good samaritan” laws you’re talking about, as they mainly involve whether or not someone who comes to another’s assistance could be held liable for negligently assisting the other. I bet the lady feels pretty stupid/terrible though.

Elie, I doubt that even you would claim that Gates has a defamation cause of action against the Cabbed Caller for fingering him as a burglar.

3. Damages are negligible.

Even assuming arguendo that the Cabbed Caller could be held liable on a negligence theory, the damages here strike me as minor. Sure, he was detained for a few hours (and considering how much Gates makes — you were a Harvard undergrad too, Elie, so you know he’s one of the highest-paid members of the faculty — his time is certainly worth money).

But I question the “reputational and psychological damages” that you claim Gates suffered. It seems to me that he is now a national cause célèbre, receiving huge amounts of public sympathy, and getting shout-outs from President Obama on national television. He has also kicked off a National Conversation About Race, which he is surely loving as an African-American studies scholar.

If anything, Gates should be grateful to the caller, for setting in motion a chain of events that has only increased his public profile. Prior to this, Henry Louis Gates was primarily a celebrity in academic circles. Now, he’s a household name.

In conclusion, I find this whole “Good Samaritan” analysis to be completely misplaced — a red herring, but too bizarre and not clever enough to be a good red herring. Please, let’s put it to merciful rest now.

ELIE’S REJOINDER

Ya, I’ll speak with yo’ mama outside.

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797154)

Elie, I don’t mean to be rude, but I am deeply frustrated. Your “Good Samaritan” argument is, quite frankly, ridiculous and embarrassing. I am glad to have this opportunity to clarify that, although it appeared on the site that I founded, I do not endorse it in any way, shape or form.

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797192)

oh wtf the link is that evolve is being aborbsed by ATL. FAKE NEWS

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797204)

i dislike lat/elie as much as anyone but this thread is FAKE NEWS

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797281)

On Thursday night, I tried to explain the ups and downs of living your life under constant threat from debt collectors. Based on the reaction to the post, I have to say that the reading comprehension of my post was poor, even by “internet commenter” standards. Even Megan McArdle in The Atlantic missed some of […]

By Elie Mystal

Jun 13, 2011 at 2:42 PM

On Thursday night, I tried to explain the ups and downs of living your life under constant threat from debt collectors. Based on the reaction to the post, I have to say that the reading comprehension of my post was poor, even by “internet commenter” standards. Even Megan McArdle in The Atlantic missed some of the key points in my post.

Mostly, I blame myself. When that many people gloss over things in your post, chances are you didn’t make things clear enough. So allow me to correct that problem now. This time, I’ll use capital letters and aggressive fonts to make sure we’re all on the same page: when it comes to negotiating down your educational debts for less than the principal, I AM NOT TALKING ABOUT FEDERAL LOANS. You should never, ever mess around with your federal debt because Uncle Sam ALWAYS GETS HIS MONEY.

Are we clear?

McArdle also claims that she doesn’t know anybody who successfully negotiated down their student debts with their lenders (missing again my point that my debts had already been sold to a collection agency). McArdle’s skepticism sounds to me like a person who goes to a car dealership, pays sticker price, and then wonders why everybody was high-fiving the dealer as she drives off the lot.

But these factual issues are not what interested me about McArdle’s post. What I found interesting was the subtle scorn she (and many commenters) had for those who do not pay back their debts. I should have included that scorn in my list of things that happen when you default on your loans…

When confronted with my alternative path to debt repayment — again, for the record, a path that I do not advocate — McArdle had a response that is very typical of people who were able to pay off their debts. She writes:

As someone who graduated from business school with nearly $100,000 in student loans, and whose first permanent full-time position paid $40,000 a year in New York City, I feel entitled to say that for anyone with a professional degree, defaulting on your loans is a choice, not something that just happens to you.

Yes. Good for Megan McArdle. I am glad that she was smart enough and made wise decisions and figured out a way to avoid having her loans go into default. I’m serious. If you had to choose a debt repayment path, you really should try to walk in McArdle’s footsteps.

Unfortunately, some of you out there are not practically perfect in every way. Some of you will bite off more than you can chew. Some of you won’t have other friends or family members around you giving you sound financial advice. Some of you will be totally unprepared for the economic realities of your first full-time position. And yes, some of you will be like me and make admittedly terrible financial choices in your twenties.

What will become of you? Should you just give up and kill yourself? Should you start hooking? Or should you, like many of the commenters, shackle yourself to a practice you don’t like in a job you don’t want while leading a life you can’t stand just so you can pay debts?

I say, “no.” I say, “there’s another way.” I say that living in default stinks, but it’s not the end of the world. I say your girlfriend won’t leave, and if she does, she was a probably a horrible succubus you are lucky to be rid of. I say your credit rating will tank, but you can live life without a credit card.

Some people think that I should have stayed in a job that paid me enough to pay back my loans. I say my first responsibility is to myself; my creditors don’t rank in the top ten.

Maybe sacrificing whatever you have to sacrifice in order to pay back your debts is the morally upstanding choice. Mind you, there is an entire financial industry that is invested in you paying back your debts (unless, of course, you are very rich, in which case it might just be a smart piece of business to avoid your debt obligations at all costs). But whether or not it is moral, the people who pay back their debts on time believe that it is the right thing to do. They have to: it’s the only way they can justify the sacrifices they’ve had to make to pay back their debts on time. They can’t allow themselves to acknowledge another way of doing things that doesn’t involve the hard work and sacrifice of timely debt repayment.

It’s kind of like how the most zealous non-smokers are always former smokers. A person who has never smoked before might say, “well, smoking just isn’t for me,” and move on with their day. But a person who used to smoke and then gave it up is the person who gets all up in your face about how “evil” it is to smoke. Remember, Mike “Don’t Smoke In My Air” Bloomberg is a reformed smoker.

Likewise, if you had parental support or whatever and were never in a bunch of education debt, you look at debtors like me with the same kind of fascination most people feel when the go to the zoo. Trust me, there are many days when Lat looks at me in the “ooh… it’s eating a peanut” kind of way. But if you’ve actually been through debt and come out clean on the other side, ye Gods do you feel superior about your choices.

Which is your right. You’ve earned it.

So I’m not surprised that Megan McArdle doesn’t know anybody who has negotiated down the price of their educational debts. In related news, I don’t know anybody who can score me some crystal meth in Indiana, even though I’ve lived there. But crystal meth and debt collection deals exist, you just have to live your life in a shady enough way so as to come across the right people.

And trust me, if you are desperate enough, the dealers will find you. It’s not pretty, but this is how the other half lives.

Don’t Count on Settling Those Student Loans [The Atlantic]

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797210)

The poast is shit, but Elie makes the aside that there's "not a whole lot of brothers in Durham." The comment thread points out that African Americans are Durham's largest ethnic group and most of the elected officials are black.

ljl no wonder they got rid of comments.

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797249)

https://abovethelaw.com/2016/04/a-farewell-to-comments/

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797354)

I used to go to ATL just to check the comments for gossip around bonus time. Now, there is no reason to go there until the bonus memos are official - in which case there is no reason to go there because we already know.

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797493)

1. Disabling comments

2. Making literally every other story about racism or sexism

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34797632)

Yep.

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34800220)

Once Above The Law killed comments, it is no longer a news site - it's just dumbass thoughts from 4 unemployed lib lawyers. There is no truth behind any of the stories, and people knew it so they left.

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34803616)

At its best there was a decent dialectic between the ATL content and the commentators

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34804813)

ATL went downhill when it essentially became buzzfeed, which started with Elie and got jacked up to 500 with Patrice and KKRR.

(http://www.autoadmit.com/thread.php?thread_id=3812313&forum_id=2#34803802)