Archive for May 22nd, 2008

A panel of the Texas Court of Appeals today vacated a lower court’s order granting temporary custody to the state over hundreds of children seized in in a recent raid on a polygamist sect in a ranch near El Dorado, Texas.  USA Today blog On Deadline has posted a link to a copy of the court’s opinion.

The appellate court found an abuse of discretion by the lower court in holding that the Texas Department of Family and Protective Services had met its burden of proving that there was a “continuing danger to the physical health or safety” children of the 38 relators, mothers of some of the children who had been taken into custody.  There was no direct evidence, according to the court of appeals, that any of the relators’ children had been subjected to direct sexual or other physical abuse.  Instead, the Department had argued that all of the children were threatened by a “pervasive system of belief” within the group that condones polygamist marriage and underage females having children.

Listening to news reports about the decision today, I couldn’t help think about the parallels between the state’s arguments in the case and arguments often raised by plaintiffs in consumer class action cases.  Theories of liability in consumer fraud class actions often attempt to focus on an over-generalization of a defendant’s conduct as being “systemic” or “pervasive” and attempt to gloss over the lack of any evidence of injury to any particular member of the would-be class.  This focus on “pervasive” bad acts that might (or perhaps are even likely) to cause injuries within a group of people without proof of any actual injury as to any particular members of that group is a strategy that is often successful.  It is often successful notwithstanding that the individual claims of would-be class members require both proof of the bad act and an injury to the plaintiff.  Thus, the class action device is used to try to establish a defendant’s liability to hundreds, thousands, or even millions of individuals using proof that would not support liability in favor of any one of them individually.  The lesson of the Texas polygamist case is that where individual injury (or in the Texas case, a specific danger of injury), is a required element of proof, overgeneralized evidence of acts, policies, or beliefs that simply could cause the injury, without evidence that they actually did cause injury, should not be enough to carry the day.

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