My Letter to David Savage
Here is my letter to The Times‘s David Savage regarding his article yesterday about Priscilla Owen:
Dear Mr. Savage,
I am writing, first and foremost, to praise your article yesterday on Priscilla Owen (“Judge Seen as Conservative, Fair” — May 19.) You wrote accurately about Owen’s dissent in a controversial abortion-rights case — getting facts right that have been reported inaccurately by many mainstream media outlets.
I wish my praise could be without reservation, but unfortunately I believe you misstated Justice Owens’s position on the case about the Kirby vacuum salesman. You said:
“There was the case of Dena Read, a woman who was raped in her home by a Kirby vacuum salesman. The company had not checked his background, which included being fired from a previous job for sex offenses. The woman won a $160,000 jury verdict, and the Texas high court upheld the award on a 6-3 vote.
“Owen dissented, arguing that the salesman was an independent contractor. For that reason, Kirby should not be held liable, she said.”
Owen wrote no opinions in the case, but joined two dissenting opinions, neither of which argued that Kirby was not liable because the rapist salesman was an independent contractor, as your article states. Rather, the dissenters argued that Kirby was not liable because the rapist salesman had been employed, not by Kirby, but by a distributor who was himself an independent contractor.
http://caselaw.lp.findlaw.com/data2/texasstatecases/sc/970707hd.htm
http://caselaw.lp.findlaw.com/data2/texasstatecases/sc/970707ad.htm
Kirby’s contract with its distributor specified that Kirby had no control over whom its distributors hired as salesmen. If Kirby couldn’t control who the distributor hired, the dissenters argued, then Kirby should not be held liable for failing to check the salesman’s background — only the distributor should. If the key question had been the salesman’s status as an independent contractor, as your article claimed, the dissenters would not have agreed that the distributor who had hired the rapist was indeed liable for failing to check the rapist’s background. But the dissenters did agree. As one of the dissents stated: “No one questions that under these rules, [the distributor] is liable to [the victim] for failing to use reasonable care in selecting [the rapist salesman] as a competent dealer, as the jury found.”
I think this merits a correction, and I am accordingly copying Jamie Gold on this e-mail. But I don’t want this minor criticism to overshadow my praise for what was on balance a fair article, and my main point in writing you is to praise you for getting it right on the parental notification issue, where so many others have gotten it wrong.
Patrick Frey
Patterico’s Pontifications
https://patterico.com
I really wish I could have given unreserved praise, but I have come to conclude that the inaccuracy is serious enough that it merits correction. Still, I think Savage did a nice job on the piece, as I discussed here. I hope that comes across in my e-mail.
[…] ge Seen as Conservative, Fair.” UPDATE: Patterico comments on the LA Times article here. 2 responses to ‘Check O […]
Confirm Them » Check Out the Boston Herald and LA Times Today (e203ab) — 5/20/2005 @ 9:10 amPattrick,
One thing that confuses me about your site is the idea that the LA Times would actually care to respond to any of your criticism. If they took well to criticism, I imagine they would have straightened up their act by now. On the other hand, the readers of your site are not likely (I believe) to change their (non) subscription based on your insights. However, this criticism does increase your brand, but at the risk of becoming too dependent on the decaying corpse of the Times.
BTW, I stand 1/2 a chance of being wrong on the assumptions, so please correct me if I am.
However, if the point of the criticism is analysis of MSM dysfunction (we are set on the identification of a problem at this point), then where to now? Rational criticism only goes so far (think of a marriage). What are you looking for in your criticisms?
BTW, I sent that icon by e-mail. Did you not get it or was it not useful?
Paul Deignan (dc0eb0) — 5/20/2005 @ 10:53 amPatrick, please send me your email address.
Joseph Mailander
Joseph Mailander (a0e69e) — 5/20/2005 @ 1:24 pmeditor
MartiniRepublic.com
joseph.mailander@gmail.com
Savage’s article was only “good” in the sense that it wasn’t nearly as bad as the stuff we normally expect from the L.A. Times. It’s basically the difference between winning a medal in the Olympics and winning one in the Special Olympics.
Xrlq (816c74) — 5/20/2005 @ 3:16 pmPatrick, please send me your email address.
Joseph,
Do you mind if I ask why?
Patterico (756436) — 5/20/2005 @ 6:34 pmPatrick–
I’m not sure I’d see it the way Owen and the dissenters did. Kirby might have had no control over who the distributor hired, but they did have control over hiring the distributor. Since these people were going door-to-door representing the Kirby product, one would think they at least would want to approve of the distributor’s methodology in hiring salesmen. This they did not do.
Instead they had a contract with a cut-out clause in it which can only be interpreted as an attempt to absolve them of responsibility should the distributor screw up. I’d not like to see such clauses become common, so I can’t fault the decision.
I’m a partner in an enginering firm. One of the sections in nearly every contract we’ve ever signed involves patents and possible infringement. To take the Kirby contract as a model, not only would there be the normal indemnification on infringement, but also a prohibition against asking us about possible infringements or controlling our misuse of other people’s patents in our delivered product. I’m willing to bet an attempt by our employer to use such as a defense in an infringement case against the both of us would be laughed out of court. As it should be.
Kevin Murphy (6a7945) — 5/21/2005 @ 12:19 amSo Savage interviews four people and all four back Owen. Not a Texan with a single dissenting view. Linda Eads, campaigning for Owen all over television and the internet, is identified only as a law professor, not a Progress for America delegate.
Can’t confuse this Savage with the one who lacks analytical rigor, can we?
href=”http://upordownvote.com/xp303htm/vid_supporters_flash.htm”>
Ed (7c80b3) — 5/21/2005 @ 8:42 amBTW, I sent that icon by e-mail. Did you not get it or was it not useful?
Paul,
Thanks. I got it, but I don’t know how to use it. I am not a computer expert.
I do have a sort of consultant who would probably know. I’ll ask him when he’s available.
Thanks again.
Patterico (756436) — 5/21/2005 @ 11:34 amLinda Eads, campaigning for Owen all over television and the internet, is identified only as a law professor, not a Progress for America delegate.
Ed,
That strikes me as a good point.
I don’t think it demolishes the lady’s credibility; after all, she claims she’s pro-choice. If that’s true, she may be campaigning for Owen simply because she thinks Owen is being maligned, not because she shares Owen’s values (which she apparently doesn’t, at least on the abortion issue).
Still, the reader should be informed of this, I think. I intend to follow up on it. Thanks.
Patterico (756436) — 5/21/2005 @ 1:13 pm[…] care in selecting [the rapist salesman] as a competent dealer, as the jury found.” Patterico discusses this case further. The Newsweek profile also mention that, a […]
Confirm Them » A Few Sunday Morning Filibuster Notes (e203ab) — 5/22/2005 @ 6:16 amPatterico, can you provide a link to the majority opinion also? The mischaracterization of the dissenters’ argument does not seem significant to me as regards public policy but perhaps might be with regard to Texas law and precedent.
James B. Shearer (fc887e) — 5/23/2005 @ 4:17 pm