Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Monday, January 31, 2011

Unringing the Bell

Taco Bell has responded to a lawsuit alleging that its beef mixture contains more filler than meat by taking out full page ads declaring "thank you for suing us." A CNNMoney.com report on the campaign can be found here.

A number of commentators have wondered about the wisdom of the strategy. After all, whatever its other virtues, the civil justice system has a poor record as a "name clearing" mechanism.

Just ask the Texas cattlemen who sued Oprah Winfrey over her statements about beef (that unquestionably was beef) and lost. Of course, they didn't just lose; they lost to one of the most popular personalities in America .... who had her own television talk show. It is hard to believe that, in retrospect, they still think this was a good idea.

But matters are even more complicated for Taco Bell. Its problem is being driven by social media, which moves at the speed of light. Litigation, which moves at the pace of your average glacier, will never catch up.

Over many years in practice I encountered numerous businesses and individuals who were excited about being sued because of the opportunity for "vindication" it afforded. It rarely played out that way. In general, they would have done better to take a deep breath and recall the words of the distinguished jurist Learned Hand: "As a litigant, I should dread a lawsuit beyond almost anything short of sickness and death."

Tuesday, January 18, 2011

The Free Market of Ideas

The most recent issue of The Nation published a debate between Floyd Abrams and Burt Neuborne over the Supreme Court decision in Citizens United. The online version of the article can be found here. The exchange is intelligent, lively, and engaging.

Still, I think that the authors miss one of the most interesting aspects of the case: that it serves as a jurisprudential Rorschach test for one's view of political liberty.

Some people believe that the preservation of liberty requires at least some regulation. Advocates for this position believe that the marketplace of ideas cannot survive, let alone flourish, unless it operates within constraints that help foster openness and fair play. This is the view reflected in the campaign restrictions that the Supreme Court held invalid.

Another view holds that regulation is inherently antithetical to the preservation of liberty. Advocates for this position believe that censorship in the cause of freedom is intellectually incoherent. This is the view embraced by those who see Citizens United as a triumph of First Amendment values.

I believe that either position is defensible. But I also believe that consistency matters here. Vacillation between these views suggests a jurisprudence of convenience, where the operative paradigm changes from case to case in order to achieve the outcome desired.

It will be interesting to see whether the Court's future First Amendment decisions are consistent with the expansive free market sensibility reflected in Citizens United. As to that, there can be no debate.