In opposing the motion to vacate the default, the most important part of the opposition will be working in a line about “how can a purported expert tarot card reader not know how to read a summons? Reading and dealing with summons are the sine qua non of being a tarot card reader.”
I was having similar thoughts. If she believes she has actual truth-outing power based on her tarot card reading, then she should have seen this coming and replied in a timely manner. If she tries to say "only sometimes does is she capable" then she'd have to answer why she chose to make those horrible accusations against the professor when she knows her own tarot-card reading can be faulty, which would undercut her usage of tarot cards as supporting her views and excusing her behaviour.
I would also say that I miss reading you on twitter ... except that reading you here is much more enjoyable and better for my mental health. When the topic is important and complex, long form writing is just better, full stop. Congratulations on making the transition.
Did anyone in academia really believe a TikTok influencer who opines based on tarot readings?
Probably not. But there are definitely academics who wouldn't want to work with a colleague who is receiving death threats and unwanted media attention. Even if it's totally undeserved.
I would note that because the case is in Idaho, there's a small chance that the bad publicity indeed created some sort of career blockages in the mish mash of mystery that is academia and reputational damage. Academia is hellish. Idaho is hellisher. We're at present dealing with a GOP fake grass roots organization to attach 2/3 of Oregon to Idaho (Idaho reps just voted for it!)
Yah but academia is also not likely to take this kind of accusation very seriously. If this had been someone making up a claim about either racism, sexism or (on the other side) bias against conservative students I'd agree. But a claimed magical divination revealing her to be a murderer...I'm doubtful.
If she had industry contacts, was trying to commercialize some tech etc then it would be more plausible.
Seems to me, Scofield is doing this for largely the same reason Taylor Swift sued someone for a dollar: because the judgment of a court matters, it speaks with some authority, and it's something you can present to anyone who has concerns. (Hat-tip to Justice Kagan in Uzuegbunam oral argument for the handy reference, of course.)
That, of course, butts up against this being a default judgment that doesn't reveal much, plus Scofield's decision to sue for far, far more than just that nominal dollar.
Would a judge have the ability to decide the award was attorney fees plus some smallish nominal amount, say a few hundred bucks? That might not outrun Guillard's ability to pay, and it would get the point across without either downplaying the weirdness of this nor inflating it beyond all recognition.
Leaving aside the broader questions raised about how the system deals with pro se litigants and just looking at the question of what relief would be appropriate, shouldn't Scofield be pushing for an injunction here? I know you can't get a preliminary injunction against defamation but I thought you could get one after an adjudication that the speech was defamatory. Presumably what she really wants is for Guillard to stop calling her a murderer and if she can prove the elements of defamation (which are and should be very speech-protective) that seems like a reasonable thing to ask. I see there's no request for an injunction in her complaint though, beyond the usual verbiage about whatever relief the court finds equitable, so maybe there's some state law bar against even post-suit injunctive relief that would apply here.
Well, at some point a court whose orders are being disobeyed starts imposing sanctions that even a judgment-proof defendant can't ignore. But I take your point about the narrowness of the order. The prospect of spending the next several years of one's life paying fees to attorneys who are trying to line up a sufficiently clear violation of a narrow order to get the court to deploy coercive sanctions isn't attractive.
"How would a healthy system of justice deal with a pauper lunatic with a large online reach making horrible false claims about someone? What would that look like in an ideal system?"
Unpopular opinion: we already have that ideal system. It's a system that has evolved after hundreds of years of advocates pushing and pulling it into the shape it's currently in. It will never be truly "ideal" and should always be undergoing reform. But I would argue that the system is *especially* good at handling tough cases like this one, which require the delicate balancing of so many competing interests.
That doesn't mean the end result will be perfect justice. It may even be a miscarriage of justice. Nevertheless, the result will be arrived at through a system which is probably about as good as it can get for resolving civil disputes such as this one. (Notice I said civil disputes -- the criminal justice system is another story.)
Really? About as good as one can get? I guess it depends on what you mean. I agree that the substantive rules are generally pretty decent (tho surely not optimal). But the procedural rules (including the American rule re: attorney fees) are pretty awful.
This hasn't really been *too* much of an issue for most of the time during which the law was developed. Practically, the courts weren't usefully able to do anything about rumor (hard to trace the source and damages from mere repetition will be limited and even for libel per se may not be practical to go to the courts). So the system ended up pretty optimized for either media cases (lawyer costs aren't outsized with respect to biz expenses for a newspaper) or cases where someone deliberately and credibly lies about a business rival moving in same sphere.
But the internet opens up a whole new dynamic where random individuals can say things casually that allow massive harms to be traced back to them. At the same time the fact that discussion is often carried out publicly opens up a new possibility of using the threat of legal action to limit discourse (wouldn't work against ppl chatting in their living rooms).
I'm a big fan of the American rule re attorney fees. It allows many cases to be brought by powerless people who would otherwise be cowed by the threat of attorneys fees if they lose.
In my experience as a litigator, defamation claims arise in many contexts. The cases involving well known people are the ones that make it to the news but are not necessarily representative of typical defamation cases. In California and other jurisdictions we have "anti-slaap" laws (a "slaap" is a "strategic lawsuit against public participation"). So if you get sued for defamation but you were legitimately exercising your 1A rights in a public forum, you can file a motion at the outset of the case to have the case thrown out--and, in an exception to the "American rule", if you win, you will be awarded attorneys fees.
I'm not making a general argument against the American rule. I think it has a number of advantages too. Merely pointing out that changes in information technology mean the courts is engaged in balancing interests in ways that it (and the legislature) hasn't had centuries or even decades to optimize.
As I suggest elsewhere I think that situations like this might be best handled by allowing for a streamlined process (somewhere between small claims and full trial w/o any prejudice to constitutional issue preservation on appeal) provided the plantiff requests only very limited monetary damages.
The plantiff is very unlikely to recover really substantial damages but they likely care greatly about being vindicated and seeing the defendant pay some price. I bet lots of ppl in this situation would happily forgo the opportunity to recover more than a few 1000 plus retraction for a streamlined process that keeps their legal fees at no more than 1,000 or so and massively reduces the time and attention required (and faster results).
Basically, I think state legislatures (or congress...the 75k removal threshold is a creature of statute yes?) ought create a speedy limited forum for social media conflicts (defamation,disputes over copyright in the saucy pic your ex took of you and maybe even publicity and invasion of privacy claims)
In CA you can file a "limited civil" case if the amount in controversy is under $25,000, and those cases do have streamlined discovery rules, limits on motions, etc.. They are fairly uncommon however except in debt collections. The reason is that lawyers need to get paid, and litigating a small value case through trial is going to cost more in attorney time than the case is worth.
I don't see how we could create a system that provides a good degree of due process but that will only cost a litigant $1,000 in legal fees, unless it is heavily subsidized. Plenty of lawyers are over-priced, sure, but this kind of work is highly-skilled and $1,000 won't go very far at all.
Here's another controversial opinion: vindicating your rights in court is not sacrosanct. It may be important, it may even seem urgent, but so is having your car repaired, going to college, or fixing a leaky roof--and none of those things are cheap either. The truth is, most litigants simply don't have to litigate. They can try to settle it themselves, or they can cut their losses and walk away. But if they want to take it to court, they should expect that it will cost money.
Sure, but if we can offer the option of vindicatation in court without reducing anyone's rights/destroying lives we should. So lets give both the plantiff and defendent the ability to opt out of this system and take it to full court. The idea is the incentives are basically to use it when both parties expect a clear cut plantiff victory but no likelihood of actually extracting the kind of damages that would make the trouble and fees worth it.
And I completely agree that it's never going to work as long as it involves a full attorney client relationship with all the attendant obligations etc... To make this work you'd need to change the ethical rules to introduce another advisory relationship where the attorney is just advising you on whether you really ought to be taking this up into a real court and offering some basic directions on what kinds of forms and declarations you should submit to the court and maybe selecting from/minorly modifying some standard list of discovery requests/directions for compliance.
But, while I think it could work, I don't really see it as something that could plausibly get adopted. Virtually every attorney I've ever talked to seems to feel the attorney client relationship is too important/sacred to want to authorize this kind of dimunition where an attorney would only be lightly involved and function in such a diminished role.
There are initiatives around the country to allow more limited advisory roles for lawyers helping people with issues like family law, landlord/tenant, etc. However, defamation actions are very fact intensive at the outset (is it a false statement or is it true?) as well as for damages (how much did it really harm the plaintiff?). That's not going to be easy for a layman to get the evidence they need and use it properly. Then there are often legal issues relating to whether the plaintiff is a public figure (not always an obvious question to answer), whether the defendant acted with malice (also not easy to answer), etc. etc. Like many other kinds of cases, it's rarely as simple as it may first appear.
I first learned about anti-slap laws from Ken, on the old PopeHat blog. There's a really solid SLAPP explainer and another on defamation that's so funny I barely noticed the legal education.
Who has been able to push and pull on it though? Pauper lunatics have not really been able to effectively pull on the system and so it's unlikely that we are taking their interests seriously. At the very least, the fact that litigation is so expensive renders the system inaccessible to almost everyone and makes it easy for the few to use it as a cudgel against the many.
As Ken's piece notes, courts often bend over backwards to accommodate pro per parties. Which is as it should be, within reason. And I have seen pro pers achieve remarkable success in some cases. The system is expensive mostly because due process requires intensive work by highly educated and skilled people. No doubt that fact gives the wealthy an advantage. The best way to level the playing field is for more publicly funded legal aid clinics.
> The system is expensive mostly because due process requires intensive work by highly educated and skilled people.
I'm not sure that's necessarily true. A lot of litigation seems to be caused by the need to apply vague rules as part of complicated frameworks without the vagueness or complexity really helping in the provision of due process. In theory, the vagueness and complexity can help us account for special circumstances, but in practice, they seem to mostly be arenas for jousting attorneys and peacocking judges.
Some complexity in the law is inevitable and that means we will need some experts who will take time and resources to train. But I think we could simplify things a lot without compromising due process rights and in the process make the legal system a lot more accessible.
I haven't seen too many vague rules in my 15 years of practice. In fact, most rules are the opposite of vague, whether we're talking about procedural rules or statutes. They are written to be as clear and unambiguous as possible. But they cannot be written to account for every factual scenario. That's where legal argument comes in. That's the point of due process: because one-size-fits-all does not work when it comes to justice.
In my experience, the law is no more complex than the world at large. The law is a reflection of the world's complexity, and has grown and evolved along with changes in society. That said, most legal concepts are actually fairly simple, and generally come down to questions of fairness or the balancing of competing interests.
The best way to make the law more accessible, and to shrink the need for expensive lawyers, is to educate young people about how the law and courts work. Educated litigants make for better litigants, which makes for a more efficient and fair system.
This is I suppose obvious, but in the past a mentally insane person would have posted their opinion via mimeographed or photocopied sheets posted at laundromats and on telephone poles. Ms Giulliard has over seven million views on tik tok. The law was written for the age of print media
Wow, the last time I put flyers up on telephone poles was so long ago there were posters up for "Titanic" and "Mars Attacks" and the newspaper headlines had Dolly the Sheep!
I even remember Congress had just passed the communications decency act; but gosh darn it I have no idea what the flyers I was putting up were for!
Anyway, you were saying about defamation law written for print media?
I feel like both plantiff and defendent would be well served by some kind of streamlined process in cases like this that allows the plantiff to get a court verdict and maybe a few thousand in damages if the court finds the conduct egregious.
What seems bad here is that to get any relief here (even an ordered retraction/seizure/deletion of social media accounts) they have to lay out large legal fees and pay a huge price in time and attention so it would be crazy for them not to sue for an amount of money that would ruin most normal people (gotta make the expected value positive and it's better tactically). That makes the lawsuit very likely to ruin one or both lives.
Yet, realistically, the plantiff isn't likely to see much money. It's just that to get any relief and impose any cost on the defamer that's their only good strategy.
Maybe it would be better to have some streamlined and more forgiving process which both parties could partake in with *limited* lawyer involvement (eg mere advice) provided the stakes were kept low. Something in between the high cost of full representation and pro-se small claims (where discovery and 1st amendment considerations might be too limited ).
Bit of a digression, but this desire for a streamlined process goes a long way towards explaining why so many contracts are shifting their adjudication into arbitration and out of the formal courts. People who hate arbitration generally, should be thinking long and hard about how to make the courts less expensive and faster, if they want to stem that shift!
Arbitration is great when two equal parties with lawyers to help negotiate the contract agree to it. The problem is the use of arbitration in contracts with consumers and other highly unequal situations to evade things like the ability to bring class actions.
Basically, the FAA is great for parties negotiating a deal when both are represented by counsel. The problem is that it can also be used to effectively eliminate rights in take it or leave it contracts.
I find it plausible that some prospective employers would avoid hiring anyone embroiled in controversy, even a controversy as ridiculous and baseless as this.
Should that be taken into account though? The effect would be the same if she has characterized her claims slightly differently to be clearly an opinion.
The trouble is, the answer to the question of what a healthy system of justice might do to remediate the harms caused by such baseless claims is predicated on the existence of a particular kind of information ecosystem.
Isn't the crux of the Streisand effect precisely the Gödelian notion that no such justice is feasible?
No one ever talks about any social good that could come from defamation suits. It looks like Professor Scofield is looking for a court judgment declaring that she was defamed, meaning the accusations were determined not to be true (or her accuser couldn't come up with any evidence when she was required to). Sort of a reverse Streisand effect.
In opposing the motion to vacate the default, the most important part of the opposition will be working in a line about “how can a purported expert tarot card reader not know how to read a summons? Reading and dealing with summons are the sine qua non of being a tarot card reader.”
I was having similar thoughts. If she believes she has actual truth-outing power based on her tarot card reading, then she should have seen this coming and replied in a timely manner. If she tries to say "only sometimes does is she capable" then she'd have to answer why she chose to make those horrible accusations against the professor when she knows her own tarot-card reading can be faulty, which would undercut her usage of tarot cards as supporting her views and excusing her behaviour.
Enjoyed this. Miss reading you on twitter!
I would also say that I miss reading you on twitter ... except that reading you here is much more enjoyable and better for my mental health. When the topic is important and complex, long form writing is just better, full stop. Congratulations on making the transition.
I enjoy reading him on Mastodon!
Did anyone in academia really believe a TikTok influencer who opines based on tarot readings?
Probably not. But there are definitely academics who wouldn't want to work with a colleague who is receiving death threats and unwanted media attention. Even if it's totally undeserved.
I would note that because the case is in Idaho, there's a small chance that the bad publicity indeed created some sort of career blockages in the mish mash of mystery that is academia and reputational damage. Academia is hellish. Idaho is hellisher. We're at present dealing with a GOP fake grass roots organization to attach 2/3 of Oregon to Idaho (Idaho reps just voted for it!)
Yah but academia is also not likely to take this kind of accusation very seriously. If this had been someone making up a claim about either racism, sexism or (on the other side) bias against conservative students I'd agree. But a claimed magical divination revealing her to be a murderer...I'm doubtful.
If she had industry contacts, was trying to commercialize some tech etc then it would be more plausible.
Dear Ken, you are a treasure.
Seems to me, Scofield is doing this for largely the same reason Taylor Swift sued someone for a dollar: because the judgment of a court matters, it speaks with some authority, and it's something you can present to anyone who has concerns. (Hat-tip to Justice Kagan in Uzuegbunam oral argument for the handy reference, of course.)
That, of course, butts up against this being a default judgment that doesn't reveal much, plus Scofield's decision to sue for far, far more than just that nominal dollar.
Would a judge have the ability to decide the award was attorney fees plus some smallish nominal amount, say a few hundred bucks? That might not outrun Guillard's ability to pay, and it would get the point across without either downplaying the weirdness of this nor inflating it beyond all recognition.
Leaving aside the broader questions raised about how the system deals with pro se litigants and just looking at the question of what relief would be appropriate, shouldn't Scofield be pushing for an injunction here? I know you can't get a preliminary injunction against defamation but I thought you could get one after an adjudication that the speech was defamatory. Presumably what she really wants is for Guillard to stop calling her a murderer and if she can prove the elements of defamation (which are and should be very speech-protective) that seems like a reasonable thing to ask. I see there's no request for an injunction in her complaint though, beyond the usual verbiage about whatever relief the court finds equitable, so maybe there's some state law bar against even post-suit injunctive relief that would apply here.
She can only get a narrow one targeted at specific statements found to be defamatory. And it's of limited utility with someone who won't obey.
Well, at some point a court whose orders are being disobeyed starts imposing sanctions that even a judgment-proof defendant can't ignore. But I take your point about the narrowness of the order. The prospect of spending the next several years of one's life paying fees to attorneys who are trying to line up a sufficiently clear violation of a narrow order to get the court to deploy coercive sanctions isn't attractive.
"How would a healthy system of justice deal with a pauper lunatic with a large online reach making horrible false claims about someone? What would that look like in an ideal system?"
Unpopular opinion: we already have that ideal system. It's a system that has evolved after hundreds of years of advocates pushing and pulling it into the shape it's currently in. It will never be truly "ideal" and should always be undergoing reform. But I would argue that the system is *especially* good at handling tough cases like this one, which require the delicate balancing of so many competing interests.
That doesn't mean the end result will be perfect justice. It may even be a miscarriage of justice. Nevertheless, the result will be arrived at through a system which is probably about as good as it can get for resolving civil disputes such as this one. (Notice I said civil disputes -- the criminal justice system is another story.)
Really? About as good as one can get? I guess it depends on what you mean. I agree that the substantive rules are generally pretty decent (tho surely not optimal). But the procedural rules (including the American rule re: attorney fees) are pretty awful.
This hasn't really been *too* much of an issue for most of the time during which the law was developed. Practically, the courts weren't usefully able to do anything about rumor (hard to trace the source and damages from mere repetition will be limited and even for libel per se may not be practical to go to the courts). So the system ended up pretty optimized for either media cases (lawyer costs aren't outsized with respect to biz expenses for a newspaper) or cases where someone deliberately and credibly lies about a business rival moving in same sphere.
But the internet opens up a whole new dynamic where random individuals can say things casually that allow massive harms to be traced back to them. At the same time the fact that discussion is often carried out publicly opens up a new possibility of using the threat of legal action to limit discourse (wouldn't work against ppl chatting in their living rooms).
I'm a big fan of the American rule re attorney fees. It allows many cases to be brought by powerless people who would otherwise be cowed by the threat of attorneys fees if they lose.
In my experience as a litigator, defamation claims arise in many contexts. The cases involving well known people are the ones that make it to the news but are not necessarily representative of typical defamation cases. In California and other jurisdictions we have "anti-slaap" laws (a "slaap" is a "strategic lawsuit against public participation"). So if you get sued for defamation but you were legitimately exercising your 1A rights in a public forum, you can file a motion at the outset of the case to have the case thrown out--and, in an exception to the "American rule", if you win, you will be awarded attorneys fees.
I'm not making a general argument against the American rule. I think it has a number of advantages too. Merely pointing out that changes in information technology mean the courts is engaged in balancing interests in ways that it (and the legislature) hasn't had centuries or even decades to optimize.
As I suggest elsewhere I think that situations like this might be best handled by allowing for a streamlined process (somewhere between small claims and full trial w/o any prejudice to constitutional issue preservation on appeal) provided the plantiff requests only very limited monetary damages.
The plantiff is very unlikely to recover really substantial damages but they likely care greatly about being vindicated and seeing the defendant pay some price. I bet lots of ppl in this situation would happily forgo the opportunity to recover more than a few 1000 plus retraction for a streamlined process that keeps their legal fees at no more than 1,000 or so and massively reduces the time and attention required (and faster results).
Basically, I think state legislatures (or congress...the 75k removal threshold is a creature of statute yes?) ought create a speedy limited forum for social media conflicts (defamation,disputes over copyright in the saucy pic your ex took of you and maybe even publicity and invasion of privacy claims)
In CA you can file a "limited civil" case if the amount in controversy is under $25,000, and those cases do have streamlined discovery rules, limits on motions, etc.. They are fairly uncommon however except in debt collections. The reason is that lawyers need to get paid, and litigating a small value case through trial is going to cost more in attorney time than the case is worth.
I don't see how we could create a system that provides a good degree of due process but that will only cost a litigant $1,000 in legal fees, unless it is heavily subsidized. Plenty of lawyers are over-priced, sure, but this kind of work is highly-skilled and $1,000 won't go very far at all.
Here's another controversial opinion: vindicating your rights in court is not sacrosanct. It may be important, it may even seem urgent, but so is having your car repaired, going to college, or fixing a leaky roof--and none of those things are cheap either. The truth is, most litigants simply don't have to litigate. They can try to settle it themselves, or they can cut their losses and walk away. But if they want to take it to court, they should expect that it will cost money.
Sure, but if we can offer the option of vindicatation in court without reducing anyone's rights/destroying lives we should. So lets give both the plantiff and defendent the ability to opt out of this system and take it to full court. The idea is the incentives are basically to use it when both parties expect a clear cut plantiff victory but no likelihood of actually extracting the kind of damages that would make the trouble and fees worth it.
And I completely agree that it's never going to work as long as it involves a full attorney client relationship with all the attendant obligations etc... To make this work you'd need to change the ethical rules to introduce another advisory relationship where the attorney is just advising you on whether you really ought to be taking this up into a real court and offering some basic directions on what kinds of forms and declarations you should submit to the court and maybe selecting from/minorly modifying some standard list of discovery requests/directions for compliance.
But, while I think it could work, I don't really see it as something that could plausibly get adopted. Virtually every attorney I've ever talked to seems to feel the attorney client relationship is too important/sacred to want to authorize this kind of dimunition where an attorney would only be lightly involved and function in such a diminished role.
There are initiatives around the country to allow more limited advisory roles for lawyers helping people with issues like family law, landlord/tenant, etc. However, defamation actions are very fact intensive at the outset (is it a false statement or is it true?) as well as for damages (how much did it really harm the plaintiff?). That's not going to be easy for a layman to get the evidence they need and use it properly. Then there are often legal issues relating to whether the plaintiff is a public figure (not always an obvious question to answer), whether the defendant acted with malice (also not easy to answer), etc. etc. Like many other kinds of cases, it's rarely as simple as it may first appear.
I first learned about anti-slap laws from Ken, on the old PopeHat blog. There's a really solid SLAPP explainer and another on defamation that's so funny I barely noticed the legal education.
Who has been able to push and pull on it though? Pauper lunatics have not really been able to effectively pull on the system and so it's unlikely that we are taking their interests seriously. At the very least, the fact that litigation is so expensive renders the system inaccessible to almost everyone and makes it easy for the few to use it as a cudgel against the many.
As Ken's piece notes, courts often bend over backwards to accommodate pro per parties. Which is as it should be, within reason. And I have seen pro pers achieve remarkable success in some cases. The system is expensive mostly because due process requires intensive work by highly educated and skilled people. No doubt that fact gives the wealthy an advantage. The best way to level the playing field is for more publicly funded legal aid clinics.
> The system is expensive mostly because due process requires intensive work by highly educated and skilled people.
I'm not sure that's necessarily true. A lot of litigation seems to be caused by the need to apply vague rules as part of complicated frameworks without the vagueness or complexity really helping in the provision of due process. In theory, the vagueness and complexity can help us account for special circumstances, but in practice, they seem to mostly be arenas for jousting attorneys and peacocking judges.
Some complexity in the law is inevitable and that means we will need some experts who will take time and resources to train. But I think we could simplify things a lot without compromising due process rights and in the process make the legal system a lot more accessible.
I haven't seen too many vague rules in my 15 years of practice. In fact, most rules are the opposite of vague, whether we're talking about procedural rules or statutes. They are written to be as clear and unambiguous as possible. But they cannot be written to account for every factual scenario. That's where legal argument comes in. That's the point of due process: because one-size-fits-all does not work when it comes to justice.
In my experience, the law is no more complex than the world at large. The law is a reflection of the world's complexity, and has grown and evolved along with changes in society. That said, most legal concepts are actually fairly simple, and generally come down to questions of fairness or the balancing of competing interests.
The best way to make the law more accessible, and to shrink the need for expensive lawyers, is to educate young people about how the law and courts work. Educated litigants make for better litigants, which makes for a more efficient and fair system.
This is I suppose obvious, but in the past a mentally insane person would have posted their opinion via mimeographed or photocopied sheets posted at laundromats and on telephone poles. Ms Giulliard has over seven million views on tik tok. The law was written for the age of print media
Wow, the last time I put flyers up on telephone poles was so long ago there were posters up for "Titanic" and "Mars Attacks" and the newspaper headlines had Dolly the Sheep!
I even remember Congress had just passed the communications decency act; but gosh darn it I have no idea what the flyers I was putting up were for!
Anyway, you were saying about defamation law written for print media?
I feel like both plantiff and defendent would be well served by some kind of streamlined process in cases like this that allows the plantiff to get a court verdict and maybe a few thousand in damages if the court finds the conduct egregious.
What seems bad here is that to get any relief here (even an ordered retraction/seizure/deletion of social media accounts) they have to lay out large legal fees and pay a huge price in time and attention so it would be crazy for them not to sue for an amount of money that would ruin most normal people (gotta make the expected value positive and it's better tactically). That makes the lawsuit very likely to ruin one or both lives.
Yet, realistically, the plantiff isn't likely to see much money. It's just that to get any relief and impose any cost on the defamer that's their only good strategy.
Maybe it would be better to have some streamlined and more forgiving process which both parties could partake in with *limited* lawyer involvement (eg mere advice) provided the stakes were kept low. Something in between the high cost of full representation and pro-se small claims (where discovery and 1st amendment considerations might be too limited ).
Bit of a digression, but this desire for a streamlined process goes a long way towards explaining why so many contracts are shifting their adjudication into arbitration and out of the formal courts. People who hate arbitration generally, should be thinking long and hard about how to make the courts less expensive and faster, if they want to stem that shift!
Arbitration is great when two equal parties with lawyers to help negotiate the contract agree to it. The problem is the use of arbitration in contracts with consumers and other highly unequal situations to evade things like the ability to bring class actions.
Basically, the FAA is great for parties negotiating a deal when both are represented by counsel. The problem is that it can also be used to effectively eliminate rights in take it or leave it contracts.
I find it plausible that some prospective employers would avoid hiring anyone embroiled in controversy, even a controversy as ridiculous and baseless as this.
Should that be taken into account though? The effect would be the same if she has characterized her claims slightly differently to be clearly an opinion.
you may be a 'dumb litigator' but you are my favorite 'dumb litigator'! great break down!
The trouble is, the answer to the question of what a healthy system of justice might do to remediate the harms caused by such baseless claims is predicated on the existence of a particular kind of information ecosystem.
Isn't the crux of the Streisand effect precisely the Gödelian notion that no such justice is feasible?
Shouldn’t Guillard already know how this is going to end?
Some seer she is.
Ken: Funny typo at the end: "...unless its TOO lawyers." (Emphasis added)
No one ever talks about any social good that could come from defamation suits. It looks like Professor Scofield is looking for a court judgment declaring that she was defamed, meaning the accusations were determined not to be true (or her accuser couldn't come up with any evidence when she was required to). Sort of a reverse Streisand effect.