Lookin' for some input on tort reform idea

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vandalvideo
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Lookin' for some input on tort reform idea

Postby vandalvideo » Sat Dec 01, 2012 4:53 pm

Hey ya'll,

So working on a non-law review paper right now and I'm a bit stumped on a legal theory question. Couldn't think of a better forum to throw this at.

Background:

Cyber bullying in schools. I want to make it tort based, cause you know first amendment shenanigans. I have the regime all worked out but I have a problem with remedies for deterrence. Need some tort minds to weigh in.

Original idea;

Vicarious liability for parents. Problem: Capped at a low amount (2K to 5K per COA depending on state). Result: Rich kids get away with a few acts of bullying.

Only solution I could think of besides saddling kids with excessive debt:

Alternative remedies, or promote defaults on civil judgments, hold the kids in contempt, and subject them to hard labor or something. Problem; contempt requires some purpose of non-payment and contempt still requires eventual payment of judgment.

Anyone have any ideas for [constitutional] alternative remedies against rich kids?

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ph14
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Re: Lookin' for some input on tort reform idea

Postby ph14 » Sat Dec 01, 2012 4:57 pm

vandalvideo wrote:Hey ya'll,

So working on a non-law review paper right now and I'm a bit stumped on a legal theory question. Couldn't think of a better forum to throw this at.

Background:

Cyber bullying in schools. I want to make it tort based, cause you know first amendment shenanigans. I have the regime all worked out but I have a problem with remedies for deterrence. Need some tort minds to weigh in.

Original idea;

Vicarious liability for parents. Problem: Capped at a low amount (2K to 5K per COA depending on state). Result: Rich kids get away with a few acts of bullying.

Only solution I could think of besides saddling kids with excessive debt:

Alternative remedies, or promote defaults on civil judgments, hold the kids in contempt, and subject them to hard labor or something. Problem; contempt requires some purpose of non-payment and contempt still requires eventual payment of judgment.

Anyone have any ideas for [constitutional] alternative remedies against rich kids?


You don't think a 2k-5k fine (per each offense, presumably) for cyber bulling will deter rich kids (through the mechanism of the rich kid's parents) from cyber bullying? Plus, you can't forget the expressive component of enacting a tort law that makes cyber bullying a civil offense. That seems like a deterrent to me.

I'm not sure I like doing this in tort though, given that the purpose of tort is generally compensation for physical harm. Look how controversial torts such as intentional infliction of emotional distress are. Come to think of it, why isn't IIED sufficient for this?

And if you really want to deter, uncap it. You could perhaps ban punitives if you wanted to. But if someone is hurt for more than 2k-5k, why not let them recover that amount?

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vandalvideo
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Re: Lookin' for some input on tort reform idea

Postby vandalvideo » Sat Dec 01, 2012 5:00 pm

ph14 wrote:
You don't think a 2k-5k fine (per each offense, presumably) for cyber bulling will deter rich kids (through rich kid's parents) from cyber bullying? Plus, you can't forget the expressive component of enacting a tort law that makes cyber bullying a civil offense. That seems like a deterrent to me.

Well I hadn't planned on creating a new tort. I just proposed redefining (broadening) defamation, IIED, and publicity. (Adding in a malice pleading option for publicity) Its enough to deter your run of the mill bully, but think about a Richie Rich character who is kinda smart and tailors his bullying to totally mess up a kid but only does it once but makes it excessively cruel. The problem with vicarious liability is that you can't increase punitive damages based on severity of the act like you could through the simple tort against the kid.

Oh, and it has to be a cap for constitutional reasons. North Carolina case said you couldn't have excessive fines for parental vicarious liability. I would love to remove the cap if possible. You can recover against the kid in excess of 5K but not against parent.

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ph14
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Re: Lookin' for some input on tort reform idea

Postby ph14 » Sat Dec 01, 2012 5:05 pm

vandalvideo wrote:
ph14 wrote:
You don't think a 2k-5k fine (per each offense, presumably) for cyber bulling will deter rich kids (through rich kid's parents) from cyber bullying? Plus, you can't forget the expressive component of enacting a tort law that makes cyber bullying a civil offense. That seems like a deterrent to me.

Well I hadn't planned on creating a new tort. I just proposed redefining (broadening) defamation, IIED, and publicity. (Adding in a malice pleading option for publicity) Its enough to deter your run of the mill bully, but think about a Richie Rich character who is kinda smart and tailors his bullying to totally mess up a kid but only does it once but makes it excessively cruel. The problem with vicarious liability is that you can't increase punitive damages based on severity of the act like you could through the simple tort against the kid.

Oh, and it has to be a cap for constitutional reasons. North Carolina case said you couldn't have excessive fines for parental vicarious liability. I would love to remove the cap if possible. You can recover against the kid in excess of 5K but not against parent.


I see. This is a pretty interesting topic. Was it a NC state or federal case? Is that the only decision out there? This is probably out of your scope, but you could argue that the case was wrongly decided.

What about just having the action directly against the kid and not against the parent, and thus you wouldn't have this constitutional vicarious liability cap? Would the parents have to pay anyways?

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vandalvideo
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Re: Lookin' for some input on tort reform idea

Postby vandalvideo » Sat Dec 01, 2012 5:16 pm

ph14 wrote:
I see. This is a pretty interesting topic. Was it a NC state or federal case? Is that the only decision out there? This is probably out of your scope, but you could argue that the case was wrongly decided.

What about just having the action directly against the kid and not against the parent, and thus you wouldn't have this constitutional vicarious liability cap? Would the parents have to pay anyways?


NC State. Although it only came up in the state context because most other states have a negligence requirement for additional damages. There needs to be some added intention element on the part of the parent in order to have excessive fines for acts done by children. Think of it as a strict liability cap; parents are strictly liable for the acts of their kids up to X amount, but may be held fully responsible for acts of negligence. (Failure to supervise kid) I guess people could plead negligence by parents but now the pleading requirements/evidential burden for cyber bullying cases is just getting excessive/confusing for the average claimant.

So the only way to hold the parent responsible even if the kid can't pay is if the parent was negligent in their supervision/control of the kid. I could argue the case is wrongly decided but I already know my professor's stance on that (He doesn't even like the idea of vicarious liability for parents. Asking him to accept strict liability for the full amount wouldn't go over well); would rather have alternative pleading/punishments.




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