Craigslist classifieds suit

by Walter Olson on June 28, 2006

Google, Amazon, AOL and Yahoo are all defending Craigslist in the suit demanding that it censor its housing ads so as to prevent users from requesting “gay Latino sought for roomshare” and the like (Lynne Marek, “Online Peers Stand Up for Craigslist in Lawsuit”, National Law Journal, Jun. 28). Earlier coverage: Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, 2006. Craigslist’s defense, by CEO Jim Buckmaster, is here.

{ 7 comments }

1 AM 06.28.06 at 10:39 am

I just wanted to comment that the Fair Housing Act (42 USC 3604[c]) and the Communications Decency Act (47 U.S.C. § 230) are such vague laws that citizens are not able to know their rights under these laws, without filing expensive lawsuits.

I don’t think it’s fair to criticize the plaintiffs for filing this suit, they’re only trying to learn the law.

I think it is fair to criticize a legal system which runs so inefficiently, that it’s impossible to know what your rights are unless you spend years and tens of thousands (hundreds of thousands?) of dollars suing.

I hate to repeatedly bring this up, but it’s a recurring theme throughout the articles in your website. You seem to blame the plaintiffs but they’re not the problem. The problem is an inefficiently run legal system, something no one wants to address.

2 Deoxy 06.28.06 at 12:37 pm

I think it comes up fairly often here, actually.

The Plaintiff’s bar is a particular point of complaint because they are the ones pushing the envelope, constantly trying to expand liability for deep pockets and limit personal responsibility for everyone else. Even in a good system, concerted effort over time can chip away and make progress toward a common goal (which they have).

But this is far from a good system, of course. Complaints against include jury selection process, forum shopping, lack of loser pays, problematic punitive damage assessment, etc.

Most of which are favorable to plaintiff’s lawyers. I wonder who has gotten many of those rules put into plac over the years?

3 David Wilson 06.28.06 at 1:19 pm

The plaintiffs are “only trying to learn the law”? AM, that’s a new one on me. I’d be interested to see the complaint. I doubt that in place of a demand for relief, there’s a request for a law school seminar.

4 David Nieporent 06.28.06 at 1:58 pm

I think AM’s comment illustrates perfectly a key theme of this website: lack of personal responsibility.

The legal system doesn’t cause the plaintiffs to file these suits; the plaintiffs choose to file these suits. The fact that the legal system allows them to proceed — and actually deems them meritorious — is certainly a problem with the legal system, but that doesn’t mitigate the blame attached to plaintiffs who exploit the absurdity of modern tort law for their own financial gain.

In any case, AM’s attempt to exculpate plaintiffs are particularly inapposite in the context of the Craigslist lawsuit. There are no injured plaintiffs here who are trying to protect their rights; this lawsuit is filed by an activist group which is trying to use the courts to impose its ideological agenda on others.

5 AM 06.28.06 at 4:31 pm

David,

I’ll explain what I mean. I would be interested in hearing your feedback.

A government gives it’s citizens rights. They do this by creating laws and an enforcement mechanism. Do you agree with this?

Citizens want to know their rights. Do you agree with this?

Let’s add some meat to this. In this case, plaintiffs want to know if they have the right to force Craigslist to stop posting these ads. Craigslist wants to know if they have the right to post these ads. Do you agree with this?

Ideally, citizens would know their rights by reading the law. Unfortunately the laws applicable to this situation (cited above) are so vague that you can’t tell what your rights are by reading them. No law professor in the country is capable of telling the parties what their rights are. Ted Frank can’t tell them what their rights are. Neither can Walter Olson. Neither do the most pre-eminent legal scholars in the country. No one knows what the law is.

The only way you can learn the law, learn what your rights are, is to bring an expensive lawsuit. Then a judge will read the statute and tell plaintiffs if they have the right to force Craigslist to delete these ads. But that’s not going to end it. The plaintiffs and Craigslist will have to appeal, possibly to the supreme court, before someone can definitively state the law applicable to this situation.

You mocked my characterization of plaintiffs as “only trying to learn the law,” but does what I wrote make sense now?

This is the problem with the legal system and it’s something few talk about. Our (one thousand?) year old legal system is an extremely inefficient way of administering rules. There is no pressure on the legal system to become more efficient, because no one tracks these administrative costs.

In my opinion, you shouldn’t criticize plaintiffs for simply trying to learn the law.

You should criticize a system run so inefficiently that it costs hundreds of thousands of dollars in legal fees to learn the law.

6 David Wilson 06.28.06 at 5:21 pm

AM, you’re right that the legal system is a costly one. But in some ways, it’s inefficient by design. A lawsuit is a (usually) hyper-close examination of a particular complaint. It takes hours for everyone to go through all the paperwork, ask questions, think through all the variations, look up the law, etc. But in its defense, there is some good to this: time and effort spent getting the most accurate picture will make for the best justice result. So will time spent considering the law. In some ways, legal complexity is a way of trying to accommodate many competing social interests. We could have a simple system: anyone accused of murder is executed. That way, we would eliminate the “cost” of all those investigations, the lengthy trial, etc. But obviously, this may not be the best result.

Of course, on the other extreme, we could grant every accused killer infinite appeals. We could set up hundreds of levels of judicial review. But that wouldn’t be the best result, either: nothing would ever come to resolution.

So it’s a balancing act.

Regarding this lawsuit, I still maintain that the plaintiffs aren’t innocently inquiring about their rights under the law. Yes, some lawsuits are attempts to push boundaries, but in every suit, a direct and specific demand is made. I’m sure they’re demanding here that Craigslist not run ads they find “discriminatory.”

However it has come about, the legal system in the past few decades has exploded with demands like this, pushing us too far toward the “infinite appeals” hypothetical I pose above. Whether the blame lies with the legal system, as you suggest, or plaintiffs, as others suggest, can be debated. Probably, both have something to do with it. Overlawyered.com itself speaks of “the system.” I guess that could include everyone.

My own personal view is that the litigation explosion is a sign of cultural decay. In sturdier societies, people are more in agreement and more willing to waive on what might be a big suit today. A trip on the sidewalk, a slight dip in stock price, a rude comment at work — these were all once just considered shoulder-shruggers. Filing a lawsuit might have even been seen as anti-social. Why are you causing us all this trouble? Only in America now, the “us” is pretty fractured, so the incentive to file suits goes up.

7 AM 06.28.06 at 6:57 pm

I understand your perspective. It would be nicer if people would just not have disputes in the first place.

At the same time, I’m not sure if disputes should be resolved without inquiring into the law. If you did that, you might have a result where one side unknowingly gives up very valuable legal rights, which wouldn’t be fair to them. I can’t blame parties for asking “what are the rules?” I actually applaud them for this, because it shows they respect the rules.

Even if you would blame the parties for inquiring into the law, I’m not sure why plaintiffs deserve any more blame than defendants. Both sides are inquiring into the law. Craigslist is just as interested as plaintiffs in learning this law.

Finally, I think you’re saying that when we need to perform fact finding (not just trying to learn the law, but trying to figure out what happened), a lengthy trial might be a good thing.

However, I want to point out that you don’t necessarily get closer to the right answer by spending more time and money on a factual dispute. You might just have a classic and wasteful prisoner’s dilemma.

For example, say two parties sue each other and both go Pro Se. So they’re both representing themselves. They’re both going to go in, tell the truth, call a few witnesses and let the jury decide. Say at this point the jury is split 50/50.

Then side A pays $1million to hire a top law firm, increasing litigation costs. This law firm is worth their money, and now the jury moves to 75/25 in favor of A. Now side B has to hire a top law firm or he will lose. B spends $1million and his firm is also good, and they bring the jury back to a 50/50 split. Then A hires expensive expert witnesses, again moving the jury to 75/25. Then B hires their own expert witnesses, bringing the jury back to 50/50. Then A conducts a massive investigation and brings in 20 witnesses, again moving the jury to 75/25. Then B does the same thing, bringing the jury back to 50/50.

So at the end of the day, all this “fact finding” brought the parties to the same place they were when they started, a 50/50 jury. Except now they’re both much poorer.

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