According to recent news reports, a prisoner statement that formed part of the justification for our going to war with Iraq was the product of torture.  The statement turns out to have been both coerced and false.  It thereby demonstrates that coercion can harm its perpetrators as much as it does its victims.

The victim in this case was Ibn al Shaykh al Libbi.  Reportedly, under C.I.A. authorization, al Libbi was tortured until he broke -- during a technique called "waterboarding" in which the subject is made to gag and suffocate.  After waterboarding, al Libbi told his captors about the supposed Iraq/al Qaeda link.

Al Libbi¡¯s statements formed part of the basis for the current administration's claims that Iraq trained al Qaeda members to use biological weapons.  The statements thus contributed to the nation's support for a war that has led to a horrible death toll and alienated much of the international community. 

As many have already observed, evidence had mounted against the purported Saddam Hussein/Osama bin Laden link long before the Bush administration finally stopped misleading our nation with references to it.  But the new revelations about al Libbi have significance beyond refuting the Bush case for war.  They provide a concrete example of how lethally unreliable coerced confessions can be.

The Fifth Amendment Bars Coerced Confessions ¨C But Why?

As readers know, the U.S. Constitution prohibits the use of a coerced confession at the confessor¡¯s criminal trial in a civilian American court.  In the words of the Fifth Amendment, "nor shall [any person] be compelled in any criminal case to be a witness against himself." 

The purpose of this prohibition, however, is subject to debate.  When I teach about the Fifth Amendment in my criminal procedure course, for example, there is often divergence on the justifications for excluding such confessions.

Some argue that coerced confessions should never make their way into evidence because torturing people into confession is morally reprehensible, and courts should not serve as a forum for reaping the rewards of outrageous government conduct.  On this view, the introduction of coerced confessions makes the judge an accomplice to brutality, and such complicity must not occur in a free country. 

A more utilitarian form of this argument ¨C one based on maximizing good consequences -- is that if we permit coerced confessions into evidence, that fact will motivate the police to coerce confessions more often than they already do.  On that theory, the exclusion of such confessions at a criminal trial deters police from engaging in coercion in the first place, because there will be no payoff.  If coercion is undesirable, then such a deterrent is useful.

The first argument emphasizes the courts' obligation to behave honorably, while the second depends on a factual assumption about how one might best control police behavior.  If firing all officers engaged in coercion would work better than the exclusion of confessions from evidence, proponents of the second argument might eschew exclusion, but proponents of the first would still embrace it, rejecting the notion that anticipated consequences -- however accurately predicted -- should drive the admissibility of evidence in court.

What the two arguments share is the view that torturing a suspect to obtain a confession is wrong and that the wrongness of such behavior drives the Fifth Amendment rule against admitting a coerced confession against the defendant who made that confession.

The Argument in Favor of Coerced Confessions:  The Guilty Forfeit Their Rights

From time to time, someone in my class articulates a very different position.  This position holds that if a person is guilty of committing a heinous crime, then that person has no entitlement to freedom from coercion at the hands of the police.  And if torturing a brutal murderer for a confession is the only way to bring the killer to justice, then torture might indeed be defensible. 

Even on this approach, though, there remains a reason to prohibit the introduction of coerced confessions against the confessor.  It is that people who suffer torture say whatever they believe it will take to make the torture stop.  And that reality makes the use of torture extremely likely to elicit confessions from innocent people. 

Because that outcome is undesirable, coercive interrogation should generally be prohibited, even though some people might find it morally unobjectionable when used against the guilty.

Torturing a Terrorist:  Is it Justified To Prevent Future Loss of Life?

Up until now, we have been considering coercive interrogation in a very specific context:  the effort to gather evidence to facilitate the prosecution of an accused criminal.  Perspectives sometimes change when the context moves from adjudicating past crimes to protecting against imminent future attacks that will otherwise claim lives. 

In the latter context -- which appears to characterize the war on terrorism -- some opponents of coercion in the evidence-gathering arena reluctantly agree with advocates of torture in the "ticking time bomb" scenario, the case in which the imminent death of innocents and the prisoner's guilt and knowledge are all virtually certain.   

In reality, the situation is almost never as clear-cut as the hypothetical scenario suggests, in terms of either the imminence and specificity of the threat or the guilt of the prisoner.  That reality is worth remembering, because Bush Administration ¡°license to torture¡± legal memoranda have not limited themselves to extreme situations but have instead affirmed executive power to engage in cruel, inhumane, and degrading treatment more generally.

But it is nonetheless valuable to consider extreme cases for analytical purposes.  And to save a building full of innocent people, a lot of us would be prepared to authorize the torture of the aspiring detonator.

How might proponents of this position reconcile their views with the embrace of the Fifth Amendment right against the introduction of compelled confessions at criminal trials of confessors? 

The answer depends on people¡¯s basis for supporting the evidentiary ban.  If one believes that torture is simply never justified, then she cannot reconcile the two views, regardless of whether she supports the suppression of tainted confessions as a deterrent or whether she believes instead that courts should not sully themselves by utilizing the fruits of unconscionable behavior. 

For full consequentialists, however, reconciliation is possible:  They can maintain that the successful prosecution of a murderer (or other criminal) after the crime has already taken place is not an important enough objective to justify the use of torture, given its costs (including the real possibility of producing a false confession).  When we are protecting existing people from a terrorist's bomb, however, the calculus changes, and torture, on that view, becomes less offensive.

On this consequentialist theory, if we are reasonably certain that the torture of a guilty person can save the lives of innocents, then torture may not only be acceptable but even morally required.  Charles Krauthammer recently made a version of this argument in the Weekly Standard.  The theory resembles that of self-defense or defense of others, in that the very person posing the threat gives rise to a concomitant right on the part of those threatened and their protectors to use whatever force is necessary to foil the attack. 

For someone faced with a killer's gun, the use of deadly force -- even given the small risk that it may all be a big misunderstanding -- would seem eminently justified.

But What If Torture Doesn't Work?

Return now to one of the reasons that people opposed coerced confessions in the criminal context:  the likelihood that a person faced with the threat of torture will say anything.  Specifically, he will say whatever he believes his interrogators want to hear.  And with this set of incentives in place for a prisoner, the risk that he will falsely confess is great indeed. 

The interrogators, moreover, ordinarily know what they want to hear -- they have, after all, arrested a suspect on the basis of suspicion that he committed a particular crime.  Whether guilty or innocent, then, the tortured person knows what to say to implicate himself and placate his interrogators. 

In preventing terrorism, though, the situation may feel quite different to many readers.  The investigators may no longer know what facts they want to hear, other than that they want the truth.  If investigators already knew these facts, they would not need to torture anyone to find them out.  Rather than confirming what they already have in mind, then, the person under interrogation must tell his torturers new information that could assist in preventing a successful attack from unfolding. 

This distinct setting might appear to reduce the risk that the prisoner will give a false statement to his interrogators.  If he has no useful information, the only risk is that he will be unjustifiably subjected to inhumane treatment, a risk to be weighed against the benefits to be gleaned.  In the absence of a scripted interrogation agenda, in other words, there is no risk that he will falsely tell interrogators what they want to hear.

The recent revelations about al Libbi and the trumped-up link between Iraq and anti-U.S. terrorism, however, suggest otherwise.  As it turns out, ¡°war on terrorism¡± interrogators often do have a theory about what is going on, and what they wish for the prisoner under interrogation to confirm, just as might occur during a police investigation of a homicide. 

Al Libbi¡¯s False Confession as a Cautionary Tale

In the case of Ibn al Shaykh al Libbi, the Bush Administration was by many accounts committed to an invasion of Iraq even before the attacks of September 11 and, once the attacks took place, was evidently prepared to use the tragic events of that day to promote and facilitate its previously chosen course of action in the Persian Gulf. 

Thus, rather than trying to diffuse a ticking time bomb, the interrogators were trying to confirm a story that would permit them to do with impunity what they were planning to do already.  Described thus, the use of torture in interrogating suspected terrorists begins to look very much like the use of torture to extract a confession from a suspect in the criminal context.  If one is against it in one area, then one might reconsider one¡¯s support for it in the other.

In light of revelations about the reason for al Libbi's false statements, we must look quite skeptically and even cynically at the Bush Administration's efforts to preserve the torture option for terrorism-related interrogations.  The American people have become disaffected with the war in Iraq and suspect that the President may have deliberately misled the nation with false claims linking 9/11 to Saddam Hussein. 

Like a jury in a criminal case, Americans had initially believed the "intelligence" that purported to establish such a link and assumed that suspected terrorists had drawn the connection on their own and that it must have therefore been accurate. 

For those of us concerned about the truth, the story of Ibn al Shaykh al Libbi is a cautionary tale.  Interrogators authorized to use torture against their prisoners will often have in mind the outlines of a script in the statement they wish to extract.  Whether that statement is "I confess to betraying Christianity by secretly practicing Judaism," as it was during the Spanish Inquisition; "I raped the white woman that day," as it was in the post-Civil War United States; or "I attended meetings at which links between Saddam Hussein and Osama Bin Laden became evident," we must accordingly worry that with the use of torture, we sell our souls only to learn too late that we have received nothing in return.

The New York Times recently revealed that the Bush Administration has been ordering the National Security Agency to eavesdrop on telephone conversations and e-mails of U.S. citizens, without first seeking a warrant. President Bush has acknowledged the truth of the reports.

Such warrantless surveillance contravenes both the Constitution and federal statutes. For ordinary domestic surveillance, the U.S. Constitution generally requires a warrant supported by probable cause to believe that the target of the surveillance has committed a crime. Several statutes, including Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), and the Foreign Intelligence Surveillance Act ("FISA"), similarly require that a warrant generally be obtained when the government wishes to spy on people in this country.

The President contends, however, that these warrant requirements, and the statutes that contain them, do not take into account the current realities of terrorism and must therefore go by the wayside. Bush's claim does not withstand close scrutiny.

What Are Warrants and Why Do We Require Them?

To appreciate the weakness of the President's claims, it is important to understand the role that warrants play in guarding our privacy.

A warrant is a certification by a detached and neutral magistrate - typically, a judge -- that a government official or other person planning to search people is justified in doing so.

The justification itself depends on the nature and scope of the intended surveillance. For example, if the police wish to have a surgeon cut open a suspect to look for a stray bullet from a victim's gun, more is required than if the police want to open a suspect's suitcase to look for marijuana. Generally, however, the constitutional standard is "probable cause," a phrase that roughly means good reason to believe that the search will turn up evidence of crime.

FISA, the statute that governs domestic gathering of foreign intelligence information, contains similar rules, although they are in some ways more flexible and, in other respects, more cumbersome. Notably, for our purposes, FISA creates a Foreign Intelligence Surveillance Court (the "FISA Court") made up of federal district judges, to review FISA surveillance applications.

FISA also creates a Court of Review, made up of federal judges, to hear government appeals of lower FISA Court decisions. Such appeals take place ex parte (or outside the presence of an opponent).

To carry out electronic surveillance of a U.S. citizen or permanent resident alien, FISA requires that there be "probable cause" to believe that the target is a foreign power or an agent of a foreign power. In reviewing whether to grant a surveillance order, the FISA Court judge defers to the agent seeking the warrant and reviews whether there has been "clear error" in the determination that such probable cause exists.

Importantly, the need for a warrant does not -- in either the criminal or the foreign intelligence context -- add anything substantive to the requirements for conducting surveillance. The point of requiring a warrant lies in the incentives that each actor brings to the job of judging whether there is, or is not, sufficient reason to conduct surveillance.

For an ordinary search warrant, the magistrate defers less to the police officer and decides, on her own, whether there really is "probable cause" to believe that a proposed search will uncover evidence of crime. In the case of either FISA surveillance orders or the more conventional search warrants, however, the judge does not insert an additional demand of the evidence -- he simply decides (with more or less deference) whether the officer properly did her job.

Why Require a Warrant? Looking to Incentives

A police officer is engaged in what the Supreme Court has called the "often competitive enterprise of ferreting out crime." The same, of course, could be said of security agents trying to ferret out terrorism. Therefore, an officer or agent might see probable cause where there is none. For similar reasons, people who visit a surgeon and hear the advice "let's operate" often seek a second opinion from a doctor who does not earn a living cutting people open.

A police officer is understood to have a bias in favor of searching, because her job is to be suspicious and to locate criminals. The same is true of officers conducting foreign surveillance.

A magistrate or judge, by contrast, is more likely to have the ability to look at the facts that an officer presents and to judge, somewhat independently, without the zeal that characterizes an officer on the hunt, whether there is indeed good reason to conduct surveillance. Though purely procedural, the step of requiring an officer to seek a warrant can therefore have a needed disciplinary effect on the process and may in fact save the substance of "probable cause" from being secretly and steadily diluted and ultimately eliminated.

Consider an analogous context. Imagine that a person is accused of a crime but that the arresting officer, rather than a jury, will decide whether the prosecutor has proved guilt beyond a reasonable doubt. This procedure would likely seem grossly unfair to most Americans. If the defendant is not guilty, how likely is the arresting officer to detect that fact, given her investment in the apparent guilt of someone that she has personally arrested?

To be sure, bias is not the same thing as dishonesty (although a bias can certainly give rise to dishonesty, such as when a defendant's mother provides a false alibi in an attempt to save her son from the death penalty). To be biased, simply put, is to have a set of loyalties and interests that could interfere with one's ability objectively to process and measure facts. (Most parents, for example, believe that their children are above average, but they cannot all be right).

When To Forego a Warrant

We have seen that a warrant serves the crucial function of bringing in an arbiter who is more neutral than an executive branch official, to pass on the question of whether a proposed search is justified on the facts. The warrant serves this function in the ordinary criminal investigation context, and it does so as well in the FISA context, in which the federal government wants to uncover terrorist activities and applies to the FISA Court for authorization.

But there are times when seeking a warrant may not be practical. President Bush, in responding to criticisms regarding recent revelations about warrantless monitoring since 2001, has suggested, in defense of his actions, that our current era and the "war on terror" represent, broadly, one of those times. How persuasive is that defense?

In the context of ordinary law enforcement and the U.S. Constitution, the police have authorization to avoid the requirement of a warrant for a particular search or seizure. For example, when an officer is in the "hot pursuit" of a fleeing (alleged) felon who runs into his own home, the officer may enter the house to apprehend the accused felon. In such a situation, there is no time to stop and obtain a warrant before entering the home. The officer, under these conditions, may judge on her own whether she has probable cause to go into the house and arrest the target. The U.S. Supreme Court has recognized such situations as presenting "exigent circumstances" that permit police to act without a warrant.

In the foreign intelligence surveillance area, there is a similar rule. When officials wish to monitor a telephone line for terrorist communications, for example, and the monitoring must begin before there is time to appear before the FISA Court, the Attorney General may authorize a warrantless tap, as long as he gives notice to a FISA Court judge and then applies for a warrant within 72 hours of the commencement of surveillance.

To find the president's defense of his warrantless surveillance persuasive, we accordingly must accept his claim that seeking a warrant, even under the flexible standards of FISA, is simply too burdensome in an age of terrorism. Such a claim, however, is -- on its face -- unpersuasive. Not every terrorism lead will require immediate action, and if a few hours delay is acceptable, then there should be enough time to obtain a warrant. When immediate action is necessary, moreover, it is possible -- within the confines of FISA -- to act immediately, provided that judicial review is sought within three days. The President has thus far offered no explanation for what sort of threat would preclude the seeking of even an after-the-fact warrant.

How The Attacks of 9/11 and Their Aftermath Bear On The Warrant Requirement

When pressed for an answer to such an obvious question, the President invokes national security. He suggests that the only way to survive in an age of terrorism is through secret surveillance with no accountability beyond the executive branch. The problem with such a suggestion is that it is both wrong and dangerous.

The suggestion is wrong because we now know that the problem on September 11th was not the failure to have gathered intelligence. It was the failure to read the intelligence we already had (about flight schools and planned airplane attacks on the World Trade Center towers), to which the administration had ready access. The problem, in other words, was too much -- and poorly organized -- information, rather than not enough. The continuing broad surveillance of U.S. citizens, without oversight, thus promises only to aggravate matters.

The suggestion that terrorism requires warrantless surveillance is dangerous too, because there is no stopping point to the argument that "we're doing everything, regardless of the law, to prevent the loss of life." The argument justifies unprovoked wars, torture, endless invasions of privacy, and the creation of a dictatorship the structure of which might come to resemble that of the very enemies from which the President wishes to protect the people of the United States.

The warrant requirement is a critical component of our democracy. Right now, it ensures that someone outside of the Bush Administration might be in a position to criticize and veto decisions that could be biased, mistaken, and ultimately fatal to the freedom that Bush and his critics alike hold dear.

Recently, New York Times reporter David Carr commented on Britney Spears' libel suit against US Weekly. In his piece, Carr asked if it's still possible that "Britney Spears can be libeled."

In this column, I'll explain why the answer is a resounding yes.

The Substance of the Article: A Sex Video Shown at a Meeting with Lawyers

US Weekly reported in October that Spears and her husband, Kevin Federline, had filmed an X-rated video of themselves and were worried that a member of their entourage might release it.

According to her lawyer, Spears has been hurt by US Weekly's claim that she and Federline met with their attorneys and showed them the tape. Her complaint, according to CNN, says, in substance, that "the entire story is false -- there is no such X-rated tape, no member of her entourage had threatened to release any such video and no such video was shown to the couple's lawyers."

Also at issue is US Weekly's claim that Spears and Federline were "acting goofy." Carr reads the article to suggest they were acting goofy on the videotape; Spears's lawyer reads it to suggest that they were acting goofy at the meeting with the attorneys while the tape was being shown. The article is arguably ambiguous as to which meaning is correct.

The Issue Is Not Who Is "Libel-Proof?"; It's What Is "Substantial Truth"?

Carr's comment may be somewhat tongue-in-cheek, but he does give specific evidence that, in his view, suggests that Spears can no longer be libeled.

The law defines libel as a false statement of fact, made with the requisite state of mind, that causes harm. In the case of a public figure like Spears, the state of mind is "actual malice" - defined in Supreme Court precedent as a subjective awareness that the statement of fact is probably false. (Is Federline a "public figure"? Probably - though it seems somewhat unfair if celebrity spouses become automatic public figures. Still, if Federline wants to deny public figure status, his new website, and incipient rap career, will count against him.)

Carr points out, in support of his suggestion that Spears is libel-proof, that Spears's "first marriage lasted a couple of days before it was annulled; she hardly seemed shy about using photos of her second wedding to her public advantage; she professed her undying love for Mr. Federline in a show they made together called 'Chaotic'; and then she proceeded to fall out with him after they had a child. And then, just as quickly, they fell back together." He also notes that throughout 'Chaotic,' Spears and Federline "seemed on the verge of tearing each other's clothes off," and that her image -- "a very adult version of pop tart" - is "built on very vivid sexual entendre."

Does this evidence have any legal relevance? Yes, but not quite in the way Carr suggests.

Carr's wording seems to suggest that Spears might be libel-proof -- meaning Spears cannot be libeled or defamed, for her reputation, at least in the area of sexuality, has already sunk to a low point. But in practice, courts have, in the main, reserved the "libel-proof" designation, in the main, for those who commit particular heinous murders or similarly grave criminal offenses.

The idea is that the plaintiff's reputation is so poor, it could hardly be further injured. Yet only the very snarky could claim that this is truly the case with Spears: Seeking publicity and performing suggestively on stage are hardly disreputable in the music industry. Also, claiming Spears's reputation is that poor only plays into the unpleasant and sexist virgin/whore distinction: It can't be the case that merely by being sexy and admitting she has sex, Spears opens herself up to any possible allegation about any possible sexual practice - from S&M all the way to bestiality - on the theory that her virtue has already somehow gone out the door. So a fine line must be drawn: Claming she's indulged in practices such as the public displays of affection in "Chaotic" won't lower Britney's reputation - but claiming she went quite a bit further, actually might.

(In a prior column, I argued that it may be time for the law to get rid of the idea that a claim of promiscuity or "groupie" status is defamatory, because it plays into the same sexist virgin/whore stereotype: that women who have sex are bad. But getting rid of that stereotype doesn't necessarily entail victimizing women who do have sex, by allowing knowingly false claims that they engage in every sexual practice under the sun, on the ground that the public already knows they are sexually active.)

So Spears doesn't really risk being deemed "libel-proof," as Carr suggests. Rather, the factor that might be an obstacle for a suit by Spears, instead, is the doctrine of "substantial truth."

Could Spears Lose Her Suit Based on a Judgment of the Story's "Substantial Truth"?

Especially because defamation defendants have the First Amendment on their side, courts in such suits do not allow plaintiffs to split hairs: An article need not be true in every detail, as long as its substance is true.

So, for instance, if Tara Reid in fact gets drunk in a particular bar on a Tuesday night, she cannot sue on a false allegation that she got drunk in a different bar that was across town on the following Friday. Moreover, that's true even if the publication that made the claim knew full well that the story it was publishing was false, and even if it had no idea about the real Tuesday night incident.

In short, defamation defendants can luck out, if their coverage just happens to be more or less true. That's because a defamation case against a public figure like Spears or Reid requires not only that the publisher of the statement believe the statement was probably false, but also that the statement was actually false.

This rule frustrates stars quite a bit - because it really does operate, in practice, as a license for publications to simply lie, as long as the lie falls in the general area of a vice a given celebrity is already known to have. (Publications should beware, though: There is no substantial truth protection after a publicly-known visit to rehab for the vice at issue. So a claim of a Kate Moss drug relapse, right now, would be highly defamatory.)

Why does the law let liars prosper in this way? The short answer is that policing the difference between perfect truth and substantial truth would inhibit free expression. For instance, if a celebrity is photographed shopping every other day for a month, a court probably will allow a publication to call her a compulsive shopper. And if she's cheated on three boyfriends in a row, a false report she's cheated on a fourth isn't worth her suing on; unless she's publicly claimed that she's reformed - or gone into sex addiction rehab - the fourth cheating report counts as "substantially true" if the prior three are actually true. Unfair? Yes - but this unfairness allows a wide margin for free speech, and that's a good thing. As I explained in a previous column about South Park and Tom Cruise, an unfortunate cost of having broad First Amendment rights is that they can provide a refuge for rogues.

Moreover, the substantial truth doctrine is a fairly innocuous case of the general phenomenon of First Amendment rights being broadly interpreted to protect even some statements that would otherwise be deemed defamatory: In our hypothetical Reid case - and all those falling under the "substantial truth" doctrine - the false statement was, by definition, no more hurtful than the truth. Other protected material - such as satire or parody - may be extremely hurtful, much more so than the truth they distort, and yet still enjoy First Amendment protection.

Is What US Weekly Said about Spears "Substantially True"?

So, if US Weekly's account is substantially true, the publication is in the clear. But is it?

To begin, it's helpful for the magazine's case that "Chaotic" was presented as truth. Indeed, Britney asked viewers, "Can you handle my truth?" Thus, if the substance of "Chaotic" were the same as the substance of the US Weekly article, Spears might not have a libel suit.

Unfortunately for US Weekly, though, I think a "substantial truth" argument is unlikely to work here. Many couples who might talk about their lovemaking, as Spears and Federline reportedly did in "Chaotic," and make out enthusiastically on a balcony in public view - photographs have been published in which Spears appears to be gripping Federline's groin -- would still draw the line at making an X-rated video of themselves.

Moreover, the additional "acting goofy" allegation - however one reads it - hurts US Weekly's case. "Acting goofy" while showing one's X-rated video to a roomful of lawyers seems substantially different than tearfully showing one's X-rated video to a roomful of lawyers, because one has to do so, in order to sue. US Weekly may want to argue that "acting goofy" could just as easily connote embarrassment and discomfort, as crudeness and exhibitionism - but a court might hold the publication responsible for both of these interpretations, and refuse to adopt the one more favorable to the defendant.

Similarly, while the issue is a much closer one, "acting goofy" in an X-rated video seems rather different (and perhaps more harmful to reputation) than acting loving in such a video. On the other hand, Pamela Anderson and Tommy Lee certainly acted goofy in their X-rated home video - and no harm to either's reputation seemingly was done. Thus, if there actually were a video, the extra "acting goofy" allegation might not mean much.

However, if there is no video, as Spears claims, then jurors may see the "acting goofy" claim as US Weekly's putting salt in the wound its article already would have caused.

In sum, US Weekly should be worried about this lawsuit. If it's indeed true that no X-rated tape exists, and no meeting with lawyers took place, then discovery could be quite narrow, and Spears's case might be a slam-dunk.

Often, celebrities decline to bring cases like this because they don't want to suffer extensive civil discovery into their sex life. But when allegations are very specific and concrete, and go a step further than any prior report, celebrities may be much less reluctant - and discovery may be much narrower.

Tabloids' upping the ante, may mean that celebrities go to court - so even if a star has a clear image, pushing the image much further in that direction, may still defame.

Tomorrow, January 11, the Supreme Court will hear oral argument in Arbaugh v. Y&H Corporation. The case involves the proper interpretation of Title VII, the main federal anti-discrimination statute.

Title VII applies only to employers with at least fifteen employees - thus exempting small "Mom and Pop" establishments. The Supreme Court will have to decide exactly what that minimum means.

Does it mean that a plaintiff suing an employer that is too small will simply lose her case if the employer establishes that fact and uses it to move for summary judgment? Or does it mean that the court lacks jurisdiction to even hear the plaintiff's case in fist place?

This issue - on which federal appellate courts have disagreed for a long time -- may sound like the ultimate legal technicality. But as I will explain, it turns out to make a great deal of a difference in real-life litigation.

Arbaugh v. Y&H Corporation: The Plaintiff Wins at Trial

Here's how the issue arose in the particular case before the Supreme Court:

Plaintiff Jennifer Arbaugh was a waitress at "The Moonlight Caf¨¦" in Louisiana. She alleged that her workplace was a sexually hostile environment, and thus that she had been the victim of sexual harassment, in violation of both Title VII and state tort law. Specifically, she alleged that she was assaulted by one of the restaurant's co-owners, was subjected to other forms of harassment and, that, ultimately, these offenses forced her to resign.

A jury agreed. After a two-day trial, it awarded Arbaugh $5,000 in back pay, $5,000 in compensatory damages, and $30,000 in punitive damages. Based on this verdict, the trial judge entered judgment against the defendant, Y&H Corporation.

The Defendant Belatedly Raises the Employee-Minimum Issue

Seventeen days after the trial concluded, the defendant, Y&H, claimed that it did not have the minimum fifteen employees Title VII requires. But this claim directly contradicted its prior admission, in pre-trial pleadings, that it did indeed have that number of employees.

So did the judge just hold Y&H to what it had originally said? Ordinarily, with a fact conceded by the defendant, that's exactly what would have happened.

But here, the number of employees wasn't just a fact. It was also, Y&H argued, a jurisdictional fact - that is, a fact necessary for the court to hear the case in the first place. If that fact wasn't true, Y&H argued, then the court never had jurisdiction, and thus its judgment against Y&H was void.

The court felt that it had to address this claim, even though it was raised very belatedly. It did not want to have exceeded its jurisdiction; jurisdiction, after all, depends on factual circumstances - not on what the parties may or may not have said. That's why a court can examine whether it has jurisdiction on its own - whether or not any party has asked it to do so.

So the parties went on, even after trial was over, to clash on the employee-minimum issue.

Arbaugh claimed that the restaurant's delivery drivers, the owners, and the owner's wives all constituted "employees" - which would be enough to satisfy the minimum. But Y&H said only the waitpersons and kitchen staff should count - meaning the minimum was not satisfied, and thus the court had never had jurisdiction in the first place.

Who was right, Arbaugh or Y&H? To figure that out, the court re-opened fact discovery - the process by which parties in litigation obtain documents and other information from one another - on this issue alone.

Finally, at the end of a five-month process, the court ruled that Y&H had fewer than 15 employees and was therefore not covered by Title VII. As a result, the court - which viewed itself as never having had subject matter jurisdiction - vacated its own judgment, which had given the jury's verdict in favor of Arbaugh the force of law.

Is Employer Size a Jurisdictional Fact?

Arbaugh appealed to the less-than-plaintiff-friendly United States Court of Appeals for the Fifth Circuit. In considering how to count employees, the Fifth Circuit applied the "economic realities" test - which tries to determine the extent of control an employer has over an individual to determine "employee" status. Under this test, it concluded that the delivery drivers and owner's wives were not "employees," (some were considered independent contractors, others passive partners) and thus that the fifteen-employee minimum had not been met.

(As a side note, the question of who qualifies as an "employee" is not before the Supreme Court in Arbaugh's case, but it is being separately tested in a different case, EEOC v. Sidley & Austin. In that case, which involves the legality of mandatory retirement policies, the EEOC argues that some less-powerful law firm partners still qualify as employees for federal anti-discrimination law purposes. If the EEOC prevails, and some preliminary rulings suggest that it may well do so, a huge class of lawyers and other professionals who work in similar institutional structures would suddenly be eligible for protection under a wide range of federal anti-discrimination laws - and may, among other things, be able to fight mandatory retirement on the ground that it constitutes age discrimination.)

Returning to Arbaugh's case, the question the Court will focus on is the jurisdictional one: Is the fifteen-employee minimum a jurisdictional fact?

The Fifth Circuit thought so. But other appeals courts have disagreed. Right now, the split is 6-5 - with six thinking the minimum is indeed a jurisdictional prerequisite, and five disagreeing.

What Will - And Should - the Supreme Court Decide on this Issue?

How is this issue likely to play out in the Supreme Court?

To begin, Title VII's language provides little help. And several Supreme Court precedents suggest that statutory requirements like this one are not jurisdictional. Indeed, that is the position the United States - which filed a brief in support of Arbaugh - has taken. And when even the conservative Bush Administration takes a pro-plaintiff stance, you can bet the law is quite clear.

Policy arguments favor Arbaugh's side too. Recall that she had brought not only federal, but also state law tort claims. (Federal courts can assert supplemental jurisdiction over state law claims when they arise out of the same facts as federal claims.) If the court lacked jurisdiction, then it lacked jurisdiction over all these claims. And that could put Arbaugh in a difficult position: If she attempted, after the federal judgment on all the claims was vacated, to re-file her state claims in Louisiana state court (as she always has had the right to do), she might find Y&H arguing that the statute of limitations had expired, or trying to bar those claims based on other defenses.

Put simply, if the federal employee-minimum is deemed jurisdictional, then it may end up extinguishing valid state-law claims - creating a problem not only of justice, but of federalism. Even if Arbaugh had no federal claim, Louisiana still had an interest in seeing her state-law rights vindicated.

Characterizing the number of employees as a "jurisdictional" fact can also be outcome-determinative. In Arbaugh, for example, the defendant's attempt to raise the employer-size question after entry of judgment in favor of the plaintiff would have been barred, but for that characterization. So, for Jennifer Arbaugh, her complete victory became a complete loss on this question alone.

Finally, there is little to be said for Y&H's argument. It is tied not to statutory language, or precedents as to which facts are jurisdictional, but rather to a handful of scattered references in prior decisions to employers as "immune" or "exempt" from coverage if they have fewer than the requisite number of employees. This argument is just as weak as it sounds.

Is there anything to be said for Y&H's argument from a policy standpoint? There is one policy point that can be made: If the employee-minimum is jurisdictional, that could mean Mom-and-Pop businesses could get out of litigation more quickly by filing a motion to dismiss for lack of jurisdiction - and the minimum's whole purpose is to protect small businesses from such suits.

But this argument is a bit of a red herring: Even if the employee-minimum is not jurisdictional, a Mom-and-Pop business could easily ask the court to divide discovery into two stages, with discovery on employee numbers coming first. Then, the Mom-and-Pop business could move for summary judgment on the employee-minimum issue if discovery was favorable. I think many courts would grant just such a request. And, like a motion for summary judgment, this request, if granted, would get Mom and Pop out of court, pronto, as Congress likely intended.

Why This Case, and This Issue, Matter

Why does this case matter? There are several reasons.

First, though this is a Title VII case, the ruling will affect plaintiffs suing under other federal antidiscrimination laws as well: the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act. All of these apply only to employers with a certain number of employees.

Second, this case may give us more insight into the decisionmaking of the court's new Chief Justice, John Roberts. Some have speculated that his past work in private practice on business-related matters will give him greater empathy for the interests of small businesses than for those of civil rights plaintiffs. Will this turn out to be true, even in a case like this - where, as I have argued, the plaintiff has much the better argument? It's possible, but I doubt it.

And even if the Chief Justice sides with Y&H, it seems likely that Arbaugh's position will command a majority. A prediction as to outcome: the better money here is on the plaintiff.

In the recent West Virginia mining tragedy, families notoriously heard a false report from the mining company that their trapped loved ones were alive, when they really were dead - as the company acknowledged a few hours later.

The experience of hearing this sequence of reports was obviously traumatic. But was it also tortious?

Some family members told the press they intended to sue the mining company for negligent infliction of emotional distress - seeking to recover for the unique pain associated with this experience. If they do sue on this theory, will they succeed?

The families may also bring separate wrongful death suits, of course. But in this column, I will concentrate on whether their negligent infliction of emotional distress suits could succeed - explaining both the general legal background of that tort in the various states, and West Virginia's attitude toward it, in particular.

The Old Cause of Action for Negligent Infliction of Emotional Distress: Its Limits

Classically, emotional harm alone could rarely serve as the sole or primary wrong to be compensated in a negligent infliction of emotional distress claim. Instead, to recover damages, one traditionally had to have suffered some physical impact or physical symptom - or had to have been within what courts call a "zone of danger" of actual physical harm, by being physically exposed to a real risk of injury that triggered physical manifestations of distress.

Paradigm law school examples of the kind of plaintiff who could succeed in showing this kind of physical injury include: A pregnant woman who is exposed to a risk causing just enough stress to induce a miscarriage; a mother who suffers physical symptoms, and even attempts suicide, after seeing her child nearly decapitated by an elevator door while she was in the same zone of danger as the child; and a mother who is physically injured as a result of having to watch a hospital employee who drops and hurts her baby right in front of her.

Sometimes courts held that extreme mental anguish, even in the absence of physical manifestations, could suffice. Emotional distress claims were based, for instance, on the suffering of plane crash victims who were aware that they would soon crash and actually did, and also on the suffering of plane passengers who were afflicted by fear of flying after a harrowing flight where death was all but certain - until the pilot regained control after a 34,000-foot tailspin plunge.

In summary, courts imposed a fairly high threshold for claims for pure emotional distress, owing to the difficulty of establishing proof of authentic distress and the difficulty of measuring its severity. By forcing plaintiffs to show physical manifestations, and forcing them to show that they were in a zone of danger, courts thought they could discourage frivolous claims.

But courts soon realized that strict adherence to the rules surrounding the tort of negligent infliction of emotional distress left too many worthy plaintiffs under-compensated. Accordingly, many states abandoned various criteria associated with the tort; and many states carved out exceptions for particularly heinous situations to allow victims to recover.

Modern Case Law on Negligent Infliction of Emotional Distress

For these reasons, some modern negligent emotional distress claims have avoided dismissal even though the plaintiff could not claim he or she was in the zone of danger, nor that his or her emotional distress manifested itself physically.

For example, a court in New York State- a jurisdiction that remains especially stingy about the cause of action - allowed a man to sue a health care provider for his emotional distress when that provider incorrectly reported to his doctor that he was sterile.

Moreover, while Florida required an emotional distress plaintiff who was falsely and negligently told he tested HIV-positive to show that treatment and/or injections for his HIV status had harmed him, Alaska, taking a more modern view, imposed no such requirement. (Ohio, though, stuck to the old thinking and refused to honor an emotional distress claim at all in this kind of scenario).

Many states also have allowed emotional distress suits by family members based on the negligent mishandling of, or botched burial of, a loved one's corpse. (This exception is memorialized in �˜ 868 of the Restatement of Torts.) For instance, Maine allowed an emotional distress claim by a plaintiff who received from a funeral home a bag of plaintiff's father's effects with someone else's "bloodied leg, severed below the knee, and bluish in color." As that court put it, "Courts have concluded that the exceptional vulnerability of the family of recent decedents make it highly probable that emotional distress will result from mishandling of the body."

Similarly, a number of states permit emotional distress claims when a telegram incorrectly announces the death of a loved one (though others, like Nebraska and Massachusetts, have rejected similar claims).

Could such a rationale be offered to permit an emotional distress claim - such as the West Virginia miners' families' potential claims -- for incorrectly announcing that a loved one is still alive? As in the similar scenarios, it is fair to say that it is "highly probable that emotional distress will result." Or, put another way, bogus claims of emotional distress in this scenario will be few.

Many Modern Courts Focus on Foreseeable Distress to Bystanders

Many modern courts have simply moved to a more general foreseeability analysis, asking if the defendant reasonably should have foreseen the extreme mental distress that would result from its negligence.

An influential modern articulation of the elements of the tort of negligent infliction of emotional distress, as asserted by bystanders, comes from New Jersey, in a case called Portee v. Jaffee:

The knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare . . . No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure. The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed.

But despite its sympathy for distressed victims, the New Jersey court did set some limits: It made sure the relationship between the claimant and the source of the emotional distress was sufficiently close: "It is the presence of deep, intimate, familial ties between the plaintiff and the physically injured person that makes the harm to emotional tranquility so serious and compelling." Indeed, the court explicitly held that a close familial relationship is necessary for a claim of emotional distress for being a "bystander," witnessing a death or injury of a loved one. Third cousins once removed, it seems, need not apply.

Another predicate of such a cause of action, the court held, is physical proximity to the death or injury: "[O]bserving the death or serious injury of another while it occurs is an essential element of a cause of action for the negligent infliction of emotional distress."

Still, other states have a more relaxed "sensory perception requirement," requiring only a mediated, albeit substantial, experience of the loved one's injury or death. A Massachusetts court, for example, has held that a "plaintiff who rushes onto the accident scene and finds a loved one injured has no greater entitlement to compensation for the shock than a plaintiff who rushes instead to the hospital."

West Virginia Law on Liability for Family Members' Emotional Distress

Due to the wide variety of state approaches, West Virginia miner family members who are serious about suing for the miscommunication by the company will likely need to consult West Virginia law.

Unfortunately, as the Supreme Court of Appeals of West Virginia admitted as recently as 1992, in Heldreth v. Marrs, the state's "view on the issue of plaintiff recovery for the negligent infliction of emotional distress has never been fully developed."

The Heldreth court itself, however, found the requirement that the plaintiff suffer physical injury "outdated," and rejected any requirement that the plaintiff be in a a"zone of danger." That court ultimately embraced a bystander rule, with a foreseeability component:

A defendant may be held liable for negligently causing a plaintiff to experience serious emotional distress, after the plaintiff witnesses a person closely related to the plaintiff suffer critical injury or death as a result of the defendant's negligent conduct, even though such distress did not result in physical injury, if the serious emotional distress was reasonably foreseeable.

This rule alone would probably leave out the miners' families - who did not witness the underground injuries and deaths that occurred. And the court once again applied Heldreth as recently as 2002, arguably reaffirming its logic there.

Fortunately, however, the miners' families may benefit from a more expansive view of when emotional distress claims can succeed. Four days after Heldreth, and also in 1992, West Virginia's high court wrote in Ricottilli v. Summersville Memorial Hosp. (a case about corpse mishandling) that "an individual may recover for the negligent infliction of emotional distress upon a showing of facts sufficient to guarantee that the emotional damage claim is not spurious."

Similarly, in 1996, in Marlin v. Bill Rich Construction, the Supreme Court of Appeals of West Virginia signaled that it wished to be open-minded and expansive in entertaining negligent infliction of emotional distress claims.

In 1997, the Supreme Court of Appeals of West Virginia decided another case that relaxed the requirements of the cause of action. Stump v. Ashland held that claimants need not directly witness the injury or death of a loved one. Instead, mere presence at the injury-producing event can serve as a predicate to satisfy what the court called the "sensory observation" requirement of Heldreth.

If the Miners Do Bring Emotional Distress Claims, They're Likely to Win

Ultimately, matters look promising in West Virginia for the miners' families; West Virginia is much less stingy than many other states in awarding such claims.

Still, it's important to note that the states' high court has, thus far, only revealed a propensity and openness to developing its law of emotional distress in a generous direction. The courts' own acknowledgement that the law is underdeveloped, however, may lead some lower state courts to try and import limitations from other states that have taken less modern approaches - approaches that do not welcome claims of pure emotional harm.

Strategically, the miners' families may do well to analogize their situation to Ricottilli - and the mishandling of corpse cases more generally. But even if they are limited by Heldreth's test, they may be able to convince courts to broadly interpret what it means to have "witnessed" the death of a loved one.

Recall that Stump held that presence at the injury-causing event is enough to make one count as a witness. Watching on television, and waiting for news from the company, while gathered together near the mine, is, realistically, as present as a loved one can be, when a miner is trapped underground.

In this instance, serious emotional distress was undoubtedly authentic, and reasonably foreseeable. For these reasons, it should be compensable. Let's hope the West Virginia courts agree.