Bill of Rights for Sale in Minnesota. Cheap.
Two of the many defendants in the ill-fated Rakofsky v. Internet case are University of St. Thomas (of Minnesota) school of law, and law prof Deborah Hackerson. Hackerson apparently wrote something about Joseph Rakofsky’s failure in a murder trial (his first trial of any sort ever) in Washington, DC, and Rakofsky sued her in New York, just like he sued the Washington Post, and the ABA Journal, and several score others.
The suit is patently frivolous: the New York Courts don’t have personal jurisdiction over the many out-of-state defendants (including University of St. Thomas School of Law or Hackerson), and everything any of them wrote was either opinion or fact supported by the trial court’s on-the-record statements such as:
It was apparent to Court that there was a—not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to the detriment of Mr. Deaner. And had there been—If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.
Rakofsky demanded $5,000 and a retraction from each defendant for his frivolous lawsuit. And University of St. Thomas and Deborah Hackerson gave in to this extortion, paying him $5,000 (together) to buy him off:
Rakofsky v. Internet St. Thomas and Hackerson Settlement
The settlement papers—a stipulation and a release—are interesting in that the release was signed on 24 June 2011, and the stipulation—one condition of which is that the document itself “not be filed in any court, except to the extent it becomes necessary to do so in order to enforce it after a breach:—was filed with the court on 14 July 2011. Who filed the stipulation with the court? Had there been a previous breach of the stipulation, or did whoever filed it violate the stipulation by doing so?
By settling with Rakofsky, the law school and Hackerson have painted a great big target on themselves for anyone else who wants to file a frivolous lawsuit. (Hear that, disgruntled unemployed St. Thomas grads? File that lawsuit; they’ll settle for nuisance value!)
Most of the defendants are fighting Rakofsky. They’ve joined together in several groups to share resources and hire counsel—not just because they can win the suit, but also because fighting is a matter of principle: they are fighting for free expression, and for the First Amendment. Because if you give one schmuck like Rakofsky money instead of utter humiliation in court, every schmuck whose feelings you hurt is going to file a lawsuit against you, and you’re going to have to either a) join the happysphere and stop speaking the truth; or b) spend your life settling vacuous defamation suits.
Maybe the settlement was forced on Hackerson and the University by their insurer. I mean only this: the insurance company might have refused to defend them if they didn’t accept the settlement. If so, then like every other defendant the law school and Hackerson had two options: give in to extortion, buying peace at the cost of your right to free expression; or hire a lawyer and fight.
Hackerson is a librarian and a law prof; you might expect her to give a damn about the First Amendment. The law school is, well, a law school; you would devoutly wish that it gave a damn about the First Amendment, because it’s teaching lawyers who might some day be called on to defend the First Amendment. Because it’s teaching lawyers who might some day be called on to defend people in trouble, you would also wish that it was willing to fight for principle. The law school collects $37,000+ per year per student. $5,000 is peanuts. But that’s much higher than the value it puts on the First Amendment. By settling for more than it would ever have to expend if it fought the case (the small cost of joining almost seventy other defendants in fighting off a frivolous suit by a pro se litigant), the law school assigned a negative value to free expression.
From some individual non-lawyer blogger, afraid of going to court, that might be acceptable, but from a law school it is not. Aspiring lawyers, unless they aspire to learn the art of surrender, should avoid St. Thomas; employers, unless they are in the surrender business (like James J. Toomey of New York, who made the deal for these defendants?) will avoid St. Thomas grads.
About The Author
At law school we were taught that a bad settlement is usually better than a glorious defeat — but not to the extent that this was an absolute litigation principle. The problem is that this is both a bad settlement and an inglorious defeat. Sometimes it’s better to fight and lose, than not fight at all — this is one of those times.
Law school discussions presume some modicum of merit in a lawsuit, since no right-thinking lawyer would file a wholly frivolous action, Assuming some merit, an litigant has the potential to prevail, and thus a settlement that leaves both sides dissatisfied is invariably held out as the best resolution.
Standing alone, it’s something of a false lesson, as it’s grounded in the pedagogical philosophy that consensus and compromise are inherently virtuous. Beyond that, when you eliminate any of the underlying assumptions, the paradigm crumbles. And when there’s neither jurisdiction nor merit, no settlement should be considered.
[…] Mark Bennett at Defending People in a similarly castrative post, expresses his utter disdain for this improvident settlement: […]
If I understand you correctly, this action by University of St. Thomas (of Minnesota) school of law, and law prof Deborah Hackerson could encourage the plaintiff to continue to pursue this lawsuit rather than withdrawing. That could end up raising the legal costs for the rest of the defendants. I think that, by the prevailing legal standards here, you could probably sue St. Thomas and Hackerson for something or other. What have you got to lose, right?
[…] Numerous law bloggers have been openly contemptuous of St. Thomas’ decision — as they should be. […]
They probably had no choice in the matter once they tendered the case to the insurer. most policies, except for malpractice policies, give the insurer an absolute right to settle claims within policy limits. Insureds do not have the right to obiect– So long as the settlement only involves the payment of the insurance company’s money and not anything– like an admission of wrongdoing.
If you get in a car accident, you cannot stop your insurance company from paying the other driver because you think it is a bogus claim or that he, not you, was at fault.
Others smarter than me have suggested that, when the insurer settled without the defendants’ consent, they should at least have made a public statement to that effect.
My take is different: if you care about your right to speak freely, you don’t tender over a First-Amendment case to an insurer with an absolute right to settle claims within policy limits.