Researchers in Iowa subjected children to emotional abuse in the 1930s, in an attempt to prove a theory about stuttering. Almost seventy years later, the "children" sued. Surely, the state would be acting properly to voluntarily compensate the victims in some way. But a lawsuit seventy years later, when almost all the perpetrators and many of the victims are dead?
On a separate note, it looks like much of the money will go to the estates of some of the victims. This sort of thing always strikes me as odd; but for whatever experiences the victims had, good, bad, or indifferent, their children would have never existed. I'm sorry my ancestors were oppressed by the czars, but from a purely personal point of view, I benefited. It's not simply that I got to grow up in the United States instead of Eastern Europe, is that I exist at all! Even though three of my grandparents lived under the czars' rule, I would think it just about as strange to get a reparations check from the Russian government as from the Italians (for oppressing my ancestors 2,000 years ago) or the Egyptians (1,400 or so years before that).
Second, it's not my area of expertise, but I could imagine one could make a plausible argument of continuing psychological harm here, especially for surviving victims. Characterizing the violation as ongoing could toll the statute. I'm not saying that's a winning argument, but the defendants could rationally decide it's not worth litigating the issue and settle.
An old paper (1989) in the Journal of the American Statistical Association by Diaconis called Methods for Studying Coincidences, briefly discusses the Law of Truly Large Numbers. He says:
Thus events so rare that they are seeming impossible do happen. This does not exactly answer your question, but I think it might help to frame the answer.
Government tends to exist, and to persist in its systemic wrongdoing, for much longer than any individual. Government's wrongs also generally do far more damage than any individual actor's wrongs.
Permitting suits for wrongs more remote in time would, in a democracy, remind the electorate that government wrongdoing is not without cost for the public purse or for wrongfully acting government agents. So a longer s/l for government tortfeasors would create electoral incentive for reform of government's systemic wrongs, as well as greater incentive for government agents to behave properly.
But longer s/l for torts by individuals acting without government authority costs only the individual tortfeasor, and would not serve to reform systemic and therefore broader and longer lived wrongful practices. So s/l for individual tortfeasors could be shorter.
That said, an absolute limit for s/l on government torts could at least be bounded by a rule analogous to the RAP:
Say, any tort claim against government or its agents must be filed within X years of a life in existence at the time of the alleged tort.
That would prevent suits by remote descendants of those directly wronged by government.
There are obviously strong arguments against such asymmetric s/ls, but I think there is at least a reasonable argument for them.
"It was not until 2001 when the San Jose (Calif.) Mercury News published an investigative story about the study and its methods did the former subjects learn about the experiment's true purpose."
The discovery rule first appeared in 1917 in a medical malpractice claim, when a plaintiff's cause of action was held not to run until the discovery of her doctor's negligence in treating her stomach condition. Hahn v. Claybrook, 130 Md. 179 (1917).
It's similar to holocaust art claims, like the recent Altmann litigation with the Klimt paintings. The limitations period does not start to run until the work is discovered.
Furthermore, most states (at least, all the ones I know) have an absolute SOL that's a bit higher-- this one's is seven years.
My father worked for the same employer from before I was conceived to after I finished college. I got a merit scholarship from that employer. (Set aside that my college reduced my financial aid package for the exact same amount.)
I suppose his employment had some impact on my conception. I'm certain that his employment gave him the time to tutor math and physics in the evening, which was part of why he gave me early tutoring in those subjects, which raised my PSAT score. Does this mean that I wasn't entitled to the scholarship? (I can't construct anything except detrimental reliance where they would have owed it to me, and even that is only after it was awarded.)
I'm sure notions of fate and predestination and divination through the use of Tarot cards comes in here. We only know about this one universe and not the parallels, so any claim for damages based on "but for" has to assume that things would continue in a certain predictable way.
We've heard of "wrongful birth" lawsuits -- a parent asks for compensation for child-raising costs after a failed sterilization. Have they succeeded? Do the defendant doctors get to offset the benefits to the parent of having the unwanted child, or to the unwanted child of coming into existence at all, against the costs?
Can we talk about a hypothetical person? If "I" had not been conceived and born to my parents, would "I" have been born to a different set of parents? Is "I" equivalent to the first-born child of Mom and Dad, so that I have to compare my actual situation to what it would have been if they'd had their first child some other time? I have only one sibling, is there some person who but for something would have been Mom and Dad's third child?
I don't think this is exactly the same as the argument against slavery reparations that says African-American descendants of slaves are better off today than descendants of Africans who were never enslaved. (And in any case, see Walter E. Williams' Proclamation of Amnesty and Pardon that he granted to persons of European descent.)
Or, looking at things the other way, if your parents had never met, maybe "you" would simply have been born to someone else, some other time or place. Same spirit, just different stuff making it up and different physical characteristics.
The only thing holding this "I"-ness together is experience (taking in consciousness &dreaming, and possibly other psychic phenomena not particular to a body) and memory. Is there any reason to think that there wouldn't be something having "your" experience if it weren't for your body?
I bet that's it. Here in AZ, the statute on suing the State says that the time period (while short, you must give notice within six months and sue, I think, within a year) only begins to run when the plaintiff has notice of the wrong, the injury, and the parties responsible. The latter provisions are rather more liberal than the statute of limitations on suing individuals (where, as I recall, it's enough to know of the legal wrong and *maybe* of the damages). If the state law here parallels that, the statute wouldn't have begun to run until 2001 in all probability, if the kids were too young to recall what had happened.
It's also possible that it was a largely voluntary settlement. For all we know the government may have thought it had a strong SoL argument but settled anyway because who wants to look like they're beating up on abused children?
The government initially reacted by introducing legislation retroactively immunizing itself against any such lawsuit. The citizens of Alberta quickly went ballistic and the government instantly backed down. The Bill was quickly consigned to oblivion and you couldn't find any politician who'd admit to having thought it was a good idea. Even though the citizenry would ultimately be footing the bill for any settlement, they'd rather pay a settlement than be perceived as heavy handed bullies picking on horribly mistreated disabled people.
This may just be a milder version of the Alberta situation.
If the state entrusted you to the care of "abusive" foster parents, maybe you would and maybe you wouldn't have a cause of action against those "abusive" parents. I think it unlikely you would have a cause of action against the state.
Years later, you learn for the first time that those weren't real "foster" parents charged with the usual responsibilities of foster parents, they were in fact employees of the state carrying out an experiment on you and other children. I wouldn't be too sure that "the fact that mistreatment was part of a rather nasty experiment...did not create a tort where none existed before." There may have been a duty on the part of the state that would not have been present if, as you previously believed, those had been truly foster parents rather than as you now know researchers from the state university. So grounds to sue the state you did not have, or at least did not know you had, before. And you might have a different cause(s) of action in view of the recently discovered facts, an "intentional" tort rather than one based on negligence.
Nor should it matter. Ultimately the real importance of the statute of limitations is to prevent suits and prosecutions from so long ago there would be little deterrence benefit and trouble finding the correct witness.
In fact I think there is a strong case to be made that court proceedings so long after the fact deny the defendants the right to a jury of their peers. After all any jury who will hear a case today will apply a very different set of social standards and ideas about what constitutes reasonable risk than those of 70 years ago. For instance I don't doubt for a second that what was standard operating procedure at construction companies back then would be grounds for a lawsuit today. Allowing ancient cases to be pursued means that not only do people running studies need to understand the law as it is interpreted at the time and the standards exercised by juries but take guesses about how it will change in the future. This imposes a substantial cost in risk with little benefit to recommend it.
You don't really know that. It is possible to have more than one causal path to the same outcome. Maybe you don't take the train and avoid having to wait for the local, but you take a cab and get stuck in traffic and so end up at Destination at the same time.
Are you saying that doctrines like undiscoverable injury and fradulent concealment are recent inventions?
Anyway, legislatures are free to enact statutes of repose if they want to prevent this kind of situation from arising.
I don't understand, "The various mechanisms that have been invented of late to get around them (SOL) focus on the plaintiffs' behavior..." What "mechanisms," what "P behavior"? More accepting of excuses for "tardiness," like belated discovery of key facts? (That isn't "plaintiffs' behavior", though, is it?) Greater willingness to toll the SOL?
But what the heck: how do I go about suing Czarist Russia?
I know this case predates the informed consent laws, rules, doctrines, etc. but in other more recent situations if the true nature of the experiment were concealed it would be impossible for subjects to give valid informed consent and fraudulent for experimenters to claim that they obtained valid informed consent. And that isn't even getting into any measures taken to prevent the subjects from finding out the nature of the experiment and the extent of the damages. If an experiment were secret one could spend years investigating what was done to them, the extent of the damages, and who was responsible without getting anywhere.
Given that the university actively prevented the children from learning what it had done to them, it would be unjust to let it off the hook because they didn't sue more quickly. In legal parlance, the university would be estopped from asserting a limitations defense starting any earlier than when the information became available in 2001.
I think there are also benefits to an asymmetrical approach.
What I don't know is how much asymmetry would be too much, or what would be the point of maximum benefit to citizens.
Prof. Bernstein's post offered opportunity to think out loud.
Thanks for pointing those out.
The God Who Loves You
It must be troubling for the god who loves you
To ponder how much happier you'd be today
Had you been able to glimpse your many futures.
It must be painful for him to watch you on Friday evenings
Driving home from the office, content with your week--
Three fine houses sold to deserving families--
Knowing as he does exactly what would have happened
Had you gone to your second choice for college,
Knowing the roommate you'd have been allotted
Whose ardent opinions on painting and music
Would have kindled in you a lifelong passion.
A life thirty points above the life you're living
On any scale of satisfaction. And every point
A thorn in the side of the god who loves you.
You don't want that, a large-souled man like you
Who tries to withhold from your wife the day's disappointments
So she can save her empathy for the children.
And would you want this god to compare your wife
With the woman you were destined to meet on the other campus?
It hurts you to think of him ranking the conversation
You'd have enjoyed over there higher in insight
Than the conversation you're used to.
And think how this loving god would feel
Knowing that the man next in line for your wife
Would have pleased her more than you ever will
Even on your best days, when you really try.
Can you sleep at night believing a god like that
Is pacing his cloudy bedroom, harassed by alternatives
You're spared by ignorance? The difference between what is
And what could have been will remain alive for him
Even after you cease existing, after you catch a chill
Running out in the snow for the morning paper,
Losing eleven years that the god who loves you
Will feel compelled to imagine scene by scene
Unless you come to the rescue by imagining him
No wiser than you are, no god at all, only a friend
No closer than the actual friend you made at college,
The one you haven't written in months. Sit down tonight
And write him about the life you can talk about
With a claim to authority, the life you've witnessed,
Which for all you know is the life you've chosen.
Carl Dennis, Practical Gods
According to the Iowa Supreme Court, the claim accrued, and two-year limitations period under State Tort Claims Act began to run, when plaintiffs discovered that they had been subjects of stuttering experiment. Experiment occurred in 1939. Sovereign immunity was abrogated in 1965 when the State Tort Claims Act was passed. The discovery rule was not adopted by the court until 1967. The Supreme Court held that the claim was not time-barred. Nixon v. State, 704 N.W.2d 643 (Iowa 2005)
Something about hard cases and bad law?
The article further says that the school continued to conceal this information until an investigative reporter published an article about it in 2001.
Given that the university actively prevented the children from learning what it had done to them, it would be unjust to let it off the hook because they didn't sue more quickly. In legal parlance, the university would be estopped from asserting a limitations defense starting any earlier than when the information became available in 2001.
This raises in my mind what is an interesting hypothetical.
Suppose I worked for the university in this case and didn't want one of the research subjects to find out about the 2001 article. So I obtained the network address of the research subject's computer and made sure it was blocked from getting access to the site containing the article.
Now if this were uncovered it could be considered criminal and tortious under various arguments - fraud, evidence tampering, etc. But would it also be a 1st Amendment Constitutional violation? In effect I would be interfering with the research subject's right to hear the important free speech of others. I don't have access to paid legal databases, does anyone know whether there is any case law on this - interfering with one's ability to hear the important free speech of others as opposed to interfering with one's ability to speak freely?
Given that the SCotUS recently effectively ruled that if an employer can successfully hide discrimination for a long enough time, then they are off the hook for it, I fear that eventually the same might be applied here.
An accessible source on the freedom to receive speech is the American Library Association's website under their Office for Intellectual Freedom, under The Right to Read Freely. Here.
Thanks, that set of cases is pretty on point with what I was talking about.
One thing I remembered since posing the hypothetical was that, if memory serves, there is a federal law that makes it a crime to conspire and work towards depriving another of a fundamental right. It would seem that this law might apply to the set of facts in the hypothetical as well.
Talking as a non-lawyer.
Couldn't that line of reasoning be extended further. Isn't a member of a religion that is prevented from hearing the arguments of others on religion having their right to hear the important free speech of others interfered with? Especially when it is done in a fraudulent manner.
After all instead of hiding the study it could be left accessible and then misdirection used to prevent the discovery of it. I guess the line then depends on whether you truly believe it and if it's reasonable to believe it.
If you truly believe that all non-Muslims are going to hell and that all Jews are liars, does it really matter when your religious text defames and is essentially libel against an entire class of people? If you demonize others in this way as a means of keeping your followers from the "important free speech of others" are you violating their rights in addition to the rights of the people you defame?
Just wondering because some of the things I read in the Qur'an seem criminal to espouse, especially when married to the claim that Allah is the author and that the book is infallible.
If someone writes a book that defames an individual and advocates his persecution or even death, then that's actionable by law. It's probably actionable if someone else repeats the contents of the book. However, write the same claims about an entire group of people and if the author makes the further more outrageous claim that the book was written by the creator then everything becomes somehow just fine. Even though to me it seems to compound his crime.
It's much easier to innocently believe a single person suffers from some deficiency that merits persecution or death but to make the claim about an either group is clearly a case of a gross over-generalization. Further to claim it's an infallible truth compounds the error and the likelihood others will act inappropriately in response to the libel.
I'm speaking here of the many places in the Koran where non-believers, Jews, and Christians are defamed. Now it seems to me that I can have a copy of the Qur'an and pass it on as a work of fiction, but the minute I start claiming it's true and infallible then I've crossed the line to a kind of conspiracy with the author.
Isn't also true that were I to belong to an organization that did the above and it resulted in someones death then aren't I culpable in that death. That is, if I belonged to an organization that kept young children in the dark about others speech and then drilled them in such defamation, and then one of those children took it upon themselves to kill a Kaffir or bludgeon a homosexual, aren't I on the hook also.
That seems just to me. Now I would be as guilty as the guy who pulled the trigger but it is a foreseeable outcome of my actions. It's especially so once it's happened before.
Now if I had been teaching that it's fiction instead and some nut job reads it as fact and kills then I'm not on the hook. It's the fact that I am advocating behavior directly or indirectly that makes me on the hook.
Now perhaps I never read the book in it's entirety. Well then there is a negligence factor. I damn well better read a book before I indocrinate children with it and claim it is infallible.
I think the same goes for the Bible.
Some day perhaps our ethical thinking will advance to the stage were people understand this. I think Thomas Jefferson understood this at a gut level and that's why he rewrote the bible.
The fallacy here is that you are comparing generalized wrongs done several generations ago, to specific actions done to particular people. Your example fits better as an argument against slavery reparations. This case is more closely related to the reparations made by certain Swiss banks, to particular survivors (or their heirs) of the Holocaust, because of specific things those companies had done to those specific people.
Anyway, does anyone actually believe that if this lawsuit had been brought in the 30s or 40s, it wouldn't have been dismissed on summary judgment and that upheld on the same "you have no right to bodily integrity" reasoning as in Buck v. Bell or that allowed being an accomplice to child abuse to constitute a "judicial act" in Stump v. Sparkman?
Isn't a member of a religion that is prevented from hearing the arguments of others on religion having their right to hear the important free speech of others interfered with? Especially when it is done in a fraudulent manner.
Well with fraud someone usually has to be using the fraud to deprive you of property, a right of some kind, and in some cases maybe an opportunity for it to be considered fraud. Religious issues don't usually involve this kind of thing. I don't know if the Constitutional claim mentioned above would apply either. Most adults can go to the library or on-line and get whatever information they want. In the hypothetical we were talking about someone blocking the ability to uncover evidence of illegal experimentation.
After all instead of hiding the study it could be left accessible and then misdirection used to prevent the discovery of it. I guess the line then depends on whether you truly believe it and if it's reasonable to believe it.
Well with the study we were talking about this is still pretty much concealment - an intentional action taken to prevent dicovery.
If you truly believe that all non-Muslims are going to hell and that all Jews are liars, does it really matter when your religious text defames and is essentially libel against an entire class of people? If you demonize others in this way as a means of keeping your followers from the "important free speech of others" are you violating their rights in addition to the rights of the people you defame?
I'm not defending any defamatory passage in any religious text, but the Koran isn't alone, there are passages that defame in the texts of other religions as well. (Although the Koran may have more of these passages, I don't know.)
As to whether you would be depriving other people of a right or claim like you would if you hid a research study, I don't think the comparison is close. You might only be able to easily find out about a study by using the internet, but there are a number of sources for finding out about all the major religions.
Just wondering because some of the things I read in the Qur'an seem criminal to espouse, especially when married to the claim that Allah is the author and that the book is infallible.
If one were to take it literally and move to act on those claims then it could be criminal. And again this goes for the fanatical followers of other religions.
If someone writes a book that defames an individual and advocates his persecution or even death, then that's actionable by law. It's probably actionable if someone else repeats the contents of the book. However, write the same claims about an entire group of people and if the author makes the further more outrageous claim that the book was written by the creator then everything becomes somehow just fine. Even though to me it seems to compound his crime.
You are right in that this can be dangerous thinking if certain things are taken literally and fanatically believed. I think the distinction lies in most adherents of a religion not taking many parts of the texts literally. For example there are some passages of the Bible that endorse slavery, but most people have the good sense to know that slavery is immoral, criminal, and wrong.
It's much easier to innocently believe a single person suffers from some deficiency that merits persecution or death but to make the claim about an either group is clearly a case of a gross over-generalization. Further to claim it's an infallible truth compounds the error and the likelihood others will act inappropriately in response to the libel.
Yes, this is dangerous.
I'm speaking here of the many places in the Koran where non-believers, Jews, and Christians are defamed. Now it seems to me that I can have a copy of the Qur'an and pass it on as a work of fiction, but the minute I start claiming it's true and infallible then I've crossed the line to a kind of conspiracy with the author.
The main issue is how literally the believers take it and if they decide to act on it. To go back to the Bible example, most people don't take the slavery passages seriously. But if a group were to take those passages literally and act on them they would certainly be conspirators and criminals.
Isn't also true that were I to belong to an organization that did the above and it resulted in someones death then aren't I culpable in that death. That is, if I belonged to an organization that kept young children in the dark about others speech and then drilled them in such defamation, and then one of those children took it upon themselves to kill a Kaffir or bludgeon a homosexual, aren't I on the hook also.
It depends on the nature of their involvement with a particular act. If the clergy of a particular religion told a follower to kill someone then certainly that person is guilty of a crime. And depending on the circumstances, if the clergy told followers to kill a particular class of people that could be incitement or other similar crimes/torts.
That seems just to me. Now I would be as guilty as the guy who pulled the trigger but it is a foreseeable outcome of my actions. It's especially so once it's happened before.
This would all depend on the facts.
Some day perhaps our ethical thinking will advance to the stage were people understand this. I think Thomas Jefferson understood this at a gut level and that's why he rewrote the bible.
I wasn't aware that he did that. In any case I agree that people would be better served with more critical thinking and less of a groupthink or mob mentality.
Thanks for your response.
I miswrote at least one sentence. Correction in italics:
"Now I would not be as guilty as the guy who pulled the trigger but it is a foreseeable outcome of my actions. "
I should have proofread it. I'm sorry you had to slog through that.