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On the origin of lawsuits

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

Where do big lawsuits come from?

This is the Darwinian question that occurred to me last week when I learned about “webcamgate” (as some Lower Merion students have called it). That’s the situation that has led to a class action complaint in which a student accuses the district of spying on him and others in their homes, through cameras installed in laptops.

Another question that came to mind was whether it could possibly be legal for school personnel to do such a thing. But I didn’t spend much time on that one. Even though I am – ahem – a little rusty on the details of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, the Stored Communications Act, and other statutes cited in the students’ complaint, I’m prepared to hazard a guess. Spying on students at home has got to be illegal.

Everyone who has commented on the case seems to feel the same way. Even the Lower Merion School District, so far as I can tell, has said nothing in defense of spying. And I also haven’t heard the district deny that at least some photographing of students in their homes did occur.

But all of that just takes me back to my first question, which is really about how we resolve problems in this society. When I first read about the case, I wondered what the families involved had tried before going to court.

I do understand – having been involved in quite a bit of litigation myself – that litigation is sometimes appropriate, and occasionally unavoidable as a way of resolving deeply-held differences. But this struck me as perhaps not one of those times, since the activity involved seemed so clearly indefensible.

Instead, this seemed an occasion for a visit by the families to the district; a swift, public explanation, by the district, of what had happened; an acknowledgment of fault (assuming the facts were as alleged); the adoption of new policies that would ensure that it wouldn’t happen again; and, finally, compensation to those who had been harmed.

Why didn’t things happen that way, and why, instead, did a federal class action come into being? I can’t answer that, partly because the origins of the case are still not clear. I’m sure some will say that it was all the fault of lawyers (though my own experience suggests that lawyers rarely act without clients). But I’m not certain that that’s the right explanation this time, especially now that I’ve read, in the Inquirer, that two students brought the issue up to the administration months ago and got no response.

So we’ll have to wait and see. And admittedly, the question of whether this situation had to turn into a lawsuit is not the main story. But it’s an interesting side story because lawsuits, with all of their expense, delays, and adversariness, are not always inevitable. Rather, they can sometimes be avoided by forthrightness, responsiveness, and the will to try really hard to reach agreement rather than go to the mat. Somehow, those qualities seem not to have been fully present in Lower Merion.

P.S. Not actually sure what Darwin would have made of all this. But I do think he could have made a lot better use of a webcam.

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