Negligence and warranty

[Volokh, Eugene]

        Indeed, the slippery slope is slippery in both directions.  I
too intuitively assume that it would be good if negligently prepared map
books could be the subjects of lawsuits, but if one slips from that to
general liability for negligent scientific statements in books,
magazines, and the like, perhaps we ought to sacrifice liability for the
map books.  Of course, it would be best -- assuming that the intuition
that map books should be subject to negligence liability but general
statements in the press should not be is correct -- to find some
principled place to draw the line.  What, though, is that place?

        I wonder whether our notions of contract and implied warranty
might be helpful here.  Cohen v. Cowles Media does hold, I believe
correctly, that contracts may be enforced notwithstanding the 1st Am.
It follows, it seems to me, that if a book explicitly said "We warrant
that all statements here are correct," then strict liability on that
contract theory -- setting aside negligence entirely -- would be proper;
and if one accepts express contracts, there'd presumably be some
possibility of recognizing implied contracts.

        One could then argue, I suppose, that publishers should never be
liable for misstatements under a negligence theory BUT that they should
be liable under a contract theory when the circumstances would imply a
warranty is being made, and where there's no clear and specific
disclaimer of such a warranty.  Most publications, the argument would
go, do not carry such an implied warranty because people know that
mistakes happen (though is that sound under general contract theory?).
On the other hand, where a publication is clearly intended to be used
for life-or-death decisions, and where it purports to be the straight
scoop and not abstract speculation, then there *is* a warranty, at least
that the author acted nonnegligently, or perhaps even that the author is
in fact correct (which would lead to strict liability under a warranty
theory).

        Obvious problems:  (1)  These implied contract theories are
notoriously uncertain, and there might be 1st Am problems flowing from
this uncertainty as to whether a warranty will be inferred.  (2)  This
seems to create a back route around some 1st Am protections, for
instance the assumption that strict liability is impermissible in the
1st Am area -- cf. Smith v. California; Manuel Enterprises v. Day;
Ferber v. California; Gertz v. Welch -- at least on matters of public
concern.  (Note though that a pure contract theory doesn't create a back
route for libel liability, since the libel plaintiff isn't in privity
with the publisher.)

        On the other hand, given that the black-letter law is that
speech-related contracts *are* enforceable, it seems hard to resist the
notion that this would cover at least some warranties.

Ed Richards writes:

> if we carry on this analogy, then what does it do to the cases that
> all courts
> accept, i.e., the map cases where data is reported incorrectly by the
> map maker?
> That is a pure instance of the publication triggering the legal
> liabiiliy - the
> incorrect map is not actionable until published, just as the lab
> reports are not
> actionable until published.
>
> If we use the paper machine theory, which seems to be what the courts
> do, does a
> map of the ocean really differ from a map of the shoals to be
> encounted in using
> blood products?  Would it all be saved by saying "in my opinion" or
> some other
> hedges?
>
> Ed
>
> >         I think I may be missing something here:  Is this really an
> > instance of "the 1st Amendment . . . shelter[ing] negligence in
> doing
> > the testing just because [the tester] choose[s] to publish the
> > findings"?  The testing itself, it seems to me, isn't
> > actionable even if
> > it's negligent; I can do all the negligent experiments I want
> > in my lab,
> > and no-one can sue me for the experiments as such.  The lawsuit
> itself
> > arises only "because [the tester] choose[s] to publish the
> > findings" --
> > it is the very fact of publication (not the testing as such) that is
> > argued to lead to negligence liability.