In an interesting attack on the alienation of affection cause of action, a North Carolina judge ruled that  the cause of action violates due process and privacy interests of the Fourteenth Amendment and First Amendment Free Speech rights.

While I’m a critic of the AA cause of action, I agree with Eugene Volokh’s criticism of the decision.

The problem I have with the claim is that proving the cause and damages of a failed marriage are just too nebulous. I discussed some of my specific criticisms a few years ago in this post.

In particular, these cases have huge causation and damages issues. In practice, however, they don’t. Plaintiffs almost always win alienation of affection lawsuits (at least in Mississippi) and often render large damages verdicts–even in very conservative counties.

So alienation of affection is basically a strict liability cause of action with a possible punitive component in the compensatory damages verdict.

I’m a fan of opinions that strike down the cause of action, but the First Amendment is probably not the best way to do it.

  • Chen Kasher

    I don’t practice in Mississippi, but I can’t help but wonder why plaintiff’s attorneys take on these cases because of the collection issues. Do they really collect these judgments against individuals? Or do the attorneys take the cases on a flat fee retainer, using the emotions of the plaintiff in order to persuade them to pay more than they may recover?

    Illinois abolished the “heart balm” torts a long time ago, though many lay people still approach lawyers hoping to sue on them. So I think there’s a populist element to them as well, which explains the practical element.

    • Chen, my own impression is that it’s affluent adulterers who figure in the A/A cases.

    • PhilipThomas

      The plaintiff usually wins. I presume that the attorney’s screening of the case is sizing up whether the defendant can pay. Anderson is right. Poor people don’t get sued for A/A.

      • Jane Tucker

        Actually, poor people do get sued for AA when the plaintiff is rich and only out for his pound of flesh.

  • It’s only protected if the defendant is a f–king corporation – I’m pretty sure that’s what the Supreme Court would say.

  • anonmd

    You are correct Anderson. What happened in the Cellular South case?

  • injustice4yall

    t’s only protected if the defendant is a f–king corporation – I’m pretty sure that’s what the Supreme Court would say.

    Something we can at last all agree on (LOL)

  • injustice4yall

    I wonder is one bank or corporation is screwing you and then another one starts screwing you too, could the first bank sue the second under Alienation of Affection too since they are people now. (LOL)