Results matching “church abuse”


Lawyers for the Vatican have called the lawsuit against Pope Benedict and the Holy See a "publicity stunt." I wouldn't go so far as to say that - it has a chance of surviving a motion to dismiss and there may be, embedded in its fifty four pages, a theory that might get to the jury. But there is a sense in which that a publicity stunt is precisely what it is and there may be some larger lessons here about the American liability system.

The lawsuit arises from the predations of a pedophile priest in Milwaukee named Father Murphy. It's a nasty case. Murphy abused numerous young boys at a school for the deaf, largely in the fifties and sixties, but perhaps extending to the early seventies when he was (quite improperly) quietly shuffled away to an early retirement. It is clear that the Milwaukee Archdiocese - in particular Archbishop Meier - failed to act in ways - during the 1960s - that would have halted the abuse. There is no evidence that the Vatican, much less the Pope, had any knowledge of or involvement with Father Murphy during this period. By the time the Vatican (and then Cardinal Ratzinger as head of the Office for the Propagation of the Faith) became aware of Murphy's offenses, it was the late 90s. The Milwaukee Archdiocese had brought a belated action to defrock him.

There is a controversy over how that proceeding was conducted and whether it ended prematurely. But it could not have prevented any further abuse and it is almost certain that, however it was handled, Father Murphy would have (as he did) die before it could be completed.

Here is where the publicity stunt begins. What makes this case newsworthy - what puts you in the New York Times and on the networks news - is the defendant in the Apostolic Palace.

There are multiple legal problems with bringing an action against the Pope and Holy See under the Foreign Sovereign Immunities Act. Two circuit courts of appeals have allowed part, but not all, of such cases to go forward. The outcomes are not consistent with each other and, in one, a cert petition is pending before the Supreme Court. Without getting into the details, the reasoning in these cases is far from unassailable.

But the theories that have been permitted - largely negligent supervision and a rather curious notion of respondeat superior - have either been rejected or are unlikely to be recognized by Wisconsin law. The Wisconsin Constitution has been interpreted to confer rather broad protection for church autonomy. Even if these problems are not fatal, the actions complained seem to be almost certainly barred by the statute of limitations.

And, as this is important, the wrongs alleged to have been committed by Pope Benedict himself could not have averted any of the very real harms suffered by the plaintiffs. Father Murphy's predations had ended long ago. They - and the feckless response of the Milwaukee Archdiocese - were well known within the deaf community. (It was pressure from that community that lead to the charges against Murphy.) The Milwaukee District Attorney had, rightly or wrongly, already declined to prosecute him. Unless one buys into the dubious notion that the failure to a religious institution to impose discipline long after the fact is a legally cognizable injury, the naming of Pope Benedict XVI is, notwithstanding the sympathetic nature of the plaintiff and the very real horror to which he was subjected - a publicity stunt.

There are a few larger implications. Litigation, in this instance, is being used as a front in a larger war to affect Vatican policy in the future. Although advocates say that something "must change," the fact is that almost everything about the Church's response to clergy abuse has changed. The gravamen of the complaint is to have outsiders manage that change. Once again, we see an attempt to take traditional common law notions of duty and liability and extend them to form the basis for prospective regulation - something which, I would argue, strains judicial competence and usurps prerogatives of civil society - particularly where the institution to be regulated is a religious institution.

Second, a theme in the complaint is that the Vatican should have acted in a way that would have publicized what it calls, at a least one point, "the practice" of child sex abuse. The harm in its failure to do so, it seems, was not limited to the predations committed by known abusers who were placed in a position to abuse again, but in the failure (or so it seems) to let people know that, in general, "priests abuse kids."

This reminds me of other cases in which the theory of liability has been that the defendant (I think of the lead paint and tobacco cases, although those were stronger examples of the approach than this is) should have fallen on its sword. There are numerous difficulties with this theory in this context, but, once again, it strikes me as a questionable spin on traditional notions of common law duty.

Finally, we have the problem of our repeated inability to discuss these matters rationally. When I wrote an op-ed in the Milwaukee Journal Sentinel a few weeks ago arguing that it might not be a good idea to completely abolish Wisconsin's generous statute of limitations for cases like this, I was accused of siding against "victims" and not appreciating the gravity of Father Murphy's offenses. Neither charge is fair.

Just as lawyers know that being "against crime" does not mean that we ought to do away with constitutional protections for criminal defendants, we also know that empathy for those to whom bad things have happened doesn't mean that all limitations on liability - even for those "deep pockets" whose relationship with the wrong is indirect - ought to be swept aside.

Around the web, November 2 - PointOfLaw Forum

Around the web, October 12 - PointOfLaw Forum

All-blog edition:


  • Class action over prepaid phone calls brings out Judge Weinstein's creative side [Russell Jackson]
  • Talking back to Wall Street pay czar Ken Feinberg [Marc Hodak via Bainbridge]
  • Why one victim of clergy abuse chose not to sue the Catholic Church [Andrew Sullivan]
  • Is this year's Supreme Court docket really unusually heavy in business cases? [Carter at ShopFloor]
  • "How to stop Congress from insider trading" [Ribstein]
  • California's MICRA law: let's hear what doctors have to say [Cal Civil Justice]

Inviting million-dollar claims based on recovered memories of events in the 1960s:

Under the version of the bill the bishop opposes, any plaintiffs, regardless of age, would have a one-year period to sue over child-abuse charges that took place at any point in their lives, no matter how long ago.

And careful what you wish for: a major argument levied by Roman Catholic opponents of the bill was that it would reinstate long-since-lapsed suits against churches but not similarly situated public agencies. Now the bill's sponsor, Queens Democrat Margaret Markey, has announced she's going to address that disparity by extending the new litigation climate to everyone:

The change would give people who say they were abused in public schools, for example, the same opportunities to sue as those claiming abuse in religious or private schools.

Cardozo lawprof Marci Hamilton has been among major public advocates of suspending statutes of limitation; for a sampling of critical viewpoints, see First Things, Crisis/Inside Catholic, and this Queens blog. Earlier here and here. More: WSJ.

Around the web, April 3 - PointOfLaw Forum

  • Jury awards $1.3 million to financial advisor after Wachovia wouldn't take him back after military service [Hartford Courant, Daniel Schwartz]
  • Texas Senate considers asbestos reform rollback [Overlawyered]
  • Paint companies await decision on Rhode Island lawsuit cost reimbursement [AP/Boston Globe via Genova]
  • "Plaintiffs firms still hiring for securities class actions" [The Recorder]
  • More high-profile exposure for Philip Howard's proposal to establish nonjury medical liability courts [NYT, WSJ law blog]
  • Church abuse suit: I'm suing you again because I shouldn't have settled with you the first time [Seattle Times]

Around the web, December 1 - PointOfLaw Forum

  • Feds indict six on charges of scheme to siphon $40 million from Cendant, Bank of America and NASDAQ class action settlements through filing of false claims [Alibaba, Karlsgodt]
  • Sovereign immunity? Never heard of it: Sixth Circuit rules Vatican can be sued directly in church sex abuse cases [WSJ law blog, earlier]
  • Mini-history of asbestos litigation controversies quotes MI paper, Brickman, Copland, Epstein [SE Texas Record]
  • Columbia's George Fletcher has new book "Tort Liability for Human Rights Abuses", looks like it lauds expansion of such liability [CUP press release, Hart Publishing, Childs, TortsProf]
  • "Pre-emptive demolition": how historic preservation laws can backfire [NYT, Adler @ Volokh]
  • Continued background buzz over push for "workplace bullying" cause of action at state level [George Lenard, Michael Fox; earlier here, here, etc.]

Chemerinsky & co.: time to apologize to Judge Jacobs - PointOfLaw Forum

Dean Erwin Chemerinsky of the newly founded UC Irvine school of (ideologically charged) law seems to fancy himself the conscience of legal academia. But it's looking very much as if he -- along with some bloggers and legal publications who should know better -- owe an abject apology to Chief Judge Dennis Jacobs of the Second Circuit U.S. Court of Appeals.

The affair began when the New York Daily Record, a Rochester, N.Y. legal publication, reported on a speech Judge Jacobs gave to a Federalist Society gathering in that upstate city. As soon summarized on several blogs and publications, Judge Jacobs supposedly dismissed pro bono work by lawyers -- all of it, in its enormous variety from high to low, humble to headline-driving, plain-vanilla to goofily cutting-edge -- as at least "primarily", if not entirely, driven by "anti-social" and self-seeking impulses. As criticism mushroomed, it was pointed out that Judge Jacobs had himself been quite involved with efforts to promote pro bono work among lawyers. Rather than cause the writers to question whether the Rochester report accurately summarized Jacobs' views, this circumstance was seized on as evidence that the judge was being hypocritical, or inconsistent, or something else bad.

Like, I suspect, a great many other readers, I knew from the very first reports that there was something very "off" about the story as it was being retailed. It wouldn't surprise me to hear someone in Judge Jacobs' position call some pro bono efforts by lawyers socially destructive, self-indulgent or ideologically charged -- indeed, most of us with eyes to see would agree with this humdrum observation. At the same time, I've never met a critic of pro bono excesses who spoke as if most pro bono work (which mainly consists of the handling of fairly routine legal matters for poorer persons) were anything to be deplored. In short, I clicked past the story figuring that a correction would soon be forthcoming, and more than a little surprised that those spreading it didn't seem to regard the reporting as suspect.

But it was the reaction of Erwin Chemerinsky that will long be remembered. Without, it seems, waiting for any further clarification from Judge Jacobs of exactly what he had or hadn't said, Chemerinsky mounted the highest horse available and rushed into the pages of the National Law Journal with a piece unsubtly titled "Shame on Dennis Jacobs". Jacobs "should be ashamed of himself," the speech was "a slap in the face", "I hope that he is widely denounced for his misguided views", and so forth. All of which happened to rest, readers may have noticed, on a wobbly little phrase in Chemerinsky's second sentence, namely "it was reported that".

Can you hear the "oops" coming?

When the WSJ law blog turned to the story yesterday, it too at first seemed to take it at face value. But later in the day, it added the following:

UPDATE: Through a spokesman, Judge Jacobs conveyed the following message to the Law Blog: "Dean Chemerinsky's article was evidently based on a newspaper article of my talk that grossly misstates what I said and think. Neither the National Law Journal nor Dean Chemerinsky have contacted me. I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses."

As was perfectly clear to many of us all along.

We're long overdue for a debate over the extraordinary things that some lawyers have managed to get away with in litigation labeled pro bono. When we have that debate, it won't constitute an "attack on pro bono", any more than criticism of misbehaving charities constitutes an attack on charity, or criticism of the giving of money to harebrained causes constitutes an attack on philanthropy, or criticism of the doings of overly politicized churches constitutes an attack on religion. That someone in Chemerinsky's position would pre-emptively react with personal attacks on a judge who has kicked off such a debate suggests he knows that the advocates of politicized pro bono will have much to be defensive about.

P.S.: Welcome Glenn Reynolds, Ron Coleman, and John Steele/Legal Ethics Forum readers. And as Prof. Obbie at Syracuse points out, the story is likely to unfold further; the Daily Record hasn't yet responded to the judge's criticism, and other attendees at the event might be heard from as well (aside from the possibility that a prepared or recorded copy of the judge's remarks will turn up).

Further P.S.: The national Federalist Society has now posted a text of Jacobs' speech here, which confirms the misreporting conjecture. Much more here.

Update Friday 1:45 p.m. EDT: Incredibly, in correspondence with the WSJ law blog, Chemerinsky is digging in. He claims that on reading the speech itself he finds the Rochester paper's account accurate enough, goes on to extensively misdescribe the contents of Jacobs' speech (easy to check here), and refuses to apologize. As I say, incredible.

Around the web, October 6 - PointOfLaw Forum

  • Remember press brouhaha over the Hannah Poling "maybe vaccines do cause autism after all" report? Turns out it may be a candidate for the scientists' undisclosed conflicts hall of fame [Seidel]
  • Slowdown, maybe, in craze for filing patent lawsuits in E. Dist. Texas [NLJ]
  • I provide an alternative viewpoint in this account of lawprof Tim Lytton's new book generally praising legal system's handling of church abuse scandals [Albany Times-Union]
  • West Virginia said to be "one Supreme Court decision" away from relapse into med mal crisis [Charleston Daily Mail]
  • Scott Greenfield on Long Island Rail Road "every retiree a disabled retiree" scandal [Simple Justice]
  • Mississippi judicial races heating up (again) [Salter, Clarion-Ledger]

Around the web, May 19 - PointOfLaw Forum

  • Another Scruggs ripple: Judge Senter disqualifies two Missouri lawyers (widely nicknamed the "Trailer Lawyers") from representing Rigsby sisters against State Farm in Katrina qui tam action [Sun-Herald via YallPolitics, more, Rossmiller with link to opinion]
  • "To recap the trial lawyer logic: Polls are great for calculating damages in large billion-dollar consumer fraud class action claims, but they're not appropriate for creating a ranking system for legal fairness." [Adomite/MC Record]
  • Scott Greenfield is bemused by the incivility at Ann Bartow's Feminist Law Professors site: "There is no doubt in my mind that I don't get it." [Simple Justice]
  • "We don't want a litigation industry," says head of largest German shareholder-protection body, of class action proposals [The Economist]
  • Vermont the next Roman Catholic diocese headed for bankruptcy? [Boston Globe] Plus: Albany lawprof Timothy Lytton has a new book hailing the church abuse litigation as a "remarkable success" of the tort system, not a view that passes entirely uncontested as readers here know ["Holding Bishops Accountable"]
  • By 2-1 margin, Second Circuit panel gives relatively broad reading to CAFA's scope in directing class actions to federal courts [NYLJ]
  • What if female underrepresentation in the hard sciences has something to do with women's own preferences? Who do we sue then? [Elaine McArdle, Boston Globe]

Reviver statutes and church-abuse suits - PointOfLaw Forum

Ted has an important article in National Review Online today on the ill-considered campaign to revive old claims against the Roman Catholic Church and other defendants. The idea of reopening lapsed statutes of limitation has also been pursued extensively in the context of asbestos, lead paint and other product liability, as Ted notes at greater length in his recent AEI Liability Outlook piece.

One day of asbestos exposure? - PointOfLaw Forum

In the mail: David Frum's much-discussed new book Comeback: Conservatism That Can Win Again, which contains the following mention of our topics on pp. 71-72:

Litigation abuse has transformed the American judicial system into a lottery where most find only delay and frustration, but a lucky few win amazing prizes. George Priest of Yale Law School likes to tell the story of the plaintiff who was exposed to asbestos for one day when his church was renovated, and won a $4.5 million settlement.

Further details are earnestly solicited from Prof. Priest, if he's reading this...

Around the web, September 25 - PointOfLaw Forum

Earlier: May 11, May 8, Apr. 5, Apr. 4, etc.

  • Barbara Bonar gets supporting testimony in her claims against Stan Chesley, but loses bench trial in case she brought over questionable settlement over Catholic church sex abuse. Bonar, the next president of the Kentucky Bar, will appeal. In the meantime, she faces trumped up ethics charges for representing class member opt-out settlements. (Andrew Wolfson, "Covington lawyer loses fee dispute case", Louisville Courier-Journal, May 12).
  • Angela Ford, who is bringing the lawsuit on behalf of Kentucky fen-phen victims ripped off by their attorneys against their co-counsel, Stan Chesley, is now also facing what seems to me retaliatory political pressure; a Hamilton County, Ohio, judge, apparently unaware of deposition commissions, is complaining that she subpoenaed an Ohio witness without being licensed to practice law in that state. For some reason, a Kentucky judge, Stanley Billingsley, is testifying on behalf of Chesley. An American Home Products witness contradicted defendants' claims that they "set aside" some settlement money for future Kentucky claimants (who, under the U.S. Supreme Court Amchem precedent, could not be bound by the settlement). And the parties are in mediation tomorrow and Thursday, which, judging by Chesley's attorney's complaints about press coverage, implies a confidential settlement is near. Next court hearing is May 31. (Shelly Whitehead, "Fen-phen suit heads to mediation", Cincinnati Post, Apr. 24; Beth Musgrave and Jim Warren, "Lawyers meet Wednesday to try to reach deal on fen-phen millions", Lexington Herald-Leader, May 14).
  • Angela Ford herself has a website, which is not surprising, but it does include a remarkable resource of publicly-available court documents related to the Abbott v. Chesley case.

The bill for clerical abuse - PointOfLaw Forum

It'll be higher than you might think, argues Villanova law dean Mark Sargent (via Bainbridge):

Who, then, will pay? Not the molesters, not the long-dead or retired bishops and chancery officials who enabled them, and not even the superiors who are still in office. The bill will be paid by closing and selling off older, marginal parishes that can barely support themselves in the inner cities and poor rural areas. It will be paid by closing Catholic schools already stressed by the increasing cost of providing private education, particularly to the poor. As usual, the poor will pay, but they won�t be the only ones.

The church in America is a bit like a rust-belt manufacturing company with responsibility for the pensions and health care of tens of thousands of retirees who far outnumber current employees. The church has a significant number of aging priests, women religious, and lay employees with pensions it has to support. In the same way that mass tort liabilities can threaten pension systems in manufacturing companies, these settlements risk the church�s capacity to meet its pension obligations. The scale of this threat is not yet certain, because little is publicly known about church pension programs, but the threat cannot be dismissed.

The indifference of at least some victims and advocates to these problems, their assumption that the bishops are cynically crying poverty, and their tendency to treat every diocese as if it were as bad as the worst ones, suggest that they want not only to be compensated, but to burn down the house.

"Even if every cathedral were bulldozed for condos..." - PointOfLaw Forum

"...the free exercise argument is silly. The diocese will continue to function under bankruptcy and, even if it didn't and all the schools were shut down tomorrow and every cathedral bulldozed to put up condos - there would be no impediment to your free exercise of religion..."

Prof. Bainbridge vs. critics on church-abuse lawsuits. See Mar. 10, etc.

Church abuse: suing the laity? - PointOfLaw Forum

In Spokane, Wash., where the local Roman Catholic diocese has declared bankruptcy under the pressure of sex-abuse lawsuits, a recent ruling by a federal judge deemed individual church parishes "unincorporated associations" that could themselves potentially be sued. Now plaintiffs in the cases are talking about suing the local parishes "and might even explore the legal liability of individual churchgoers". (John Stucke, "Abuse victims may sue parishes", Spokane Spokesman-Review, Jul. 27). More: May 5, etc. (cross-posted from Overlawyered)(& welcome readers of Prof. Bainbridge, who writes, "I hold no brief for the hierarchy's mishandling of the scandal, but it is starting to look like some folks are determined to use the scandal as a weapon to destroy the Catholic Church.")

Chaput on abuse suits - PointOfLaw Forum

Roman Catholic Archbishop Charles Chaput of Denver, interviewed in Our Sunday Visitor, is outspokenly critical of the trend toward retroactively reopening statutes of limitations so as to facilitate sex-abuse litigation against churches and church schools. He also makes a couple of other interesting points about the litigation, in particular its tendency not to be directed at the government-school sector:

In almost every state, public officials use a combination of governmental immunity, very brief reporting timeframes and very low financial damage caps to make it difficult for anyone to sue public institutions � including public schools. Religious and private institutions enjoy no such lop-sided protections....

In Colorado, under current (February 2006) law, a parent whose child is sexually abused in a public school is barred from suing the school because of governmental immunity. Even if a public school waived its immunity, which is unlikely, the child would have only 180 days to provide formal notice of a claim against the school. And even then, the maximum damages the child could recover are only $150,000.

For the identical sexual abuse in a Catholic parish, there is no immunity, no notice requirement, no $150,000 damage cap, and a much longer statute of limitations. This is why the litigation industry � and that's exactly what it has become; a very lucrative revenue-producing industry � targets private institutions and ignores the public sector. There's no money in suing public schools.

More on the abuse litigation here, here, here, here, here and here.

Church lawsuits and Katrina relief - PointOfLaw Forum

One more consequence of the church abuse litigation and associated diocesan bankruptcies: Prof. Bainbridge is going to be careful about which Catholic institutions he selects as recipients of his Katrina donations, lest the money wind up in hands like those of, say, Larry Drivon (Aug. 31). More on the Canadian situation in this report (via Sullivan):

More than 130 churches and other property belonging to a Roman Catholic diocese in Newfoundland could soon be up for sale after a court approved a financial settlement Tuesday for the victims of abusive priests.

The negotiated settlement between St. George's Diocese and the 40 victims is expected to raise $13 million for compensation. St. George's is believed to be the first Catholic diocese in Canada to seek bankruptcy protection as a result of sexual abuse claims.

The men involved will receive awards of between $75,000 to $1 million once the sale of properties is completed over the next 30 months....

The church won't have to sell items used to perform mass, such as vestments, candelabras or Bibles.

While on the subject of Katrina donations, Glenn Reynolds has an updated listing of charities helping with survivor relief.

Welcome Daily Dish readers - PointOfLaw Forum

Andrew Sullivan graciously linked to Walter's posting on the Catholic church's parish assets--including real property--being forfeit in settling abuse claims. Those interested in the topic should be sure to check out Martin Grace's analysis of the Catholic church's legal strategy, posted earlier today, and Walter's earlier posts on suits against the church (Mar. 10; Sept. 29, '04).

The Seattle Times reports on a bankruptcy judge's ruling against the Roman Catholic Diocese of Spokane. See Aug. 10 and Sept. 29, 2004.

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