There’s an interesting discussion on the LieStoppers blog comments regarding Duke’s motive in offering reinstatement. Here’s the gist, in the words of an anonymous commenter:

It is a win/win for Duke in attempting to mitigate the damages in the lawsuit that will surely be filed. If the boys return to Duke (not gonna happen) Duke argues in the civil suit that the plaintiffs could not have been that angry with Duke. If they reject the offer, Duke argues that the offer is the terminus point for damages related to suspension.

And this exposition by a commenter called Maryland Esquire, who expands the liability to DA Mike Nifong, the Durham Police and the City of Durham:

Firstly, and this is more of a classic legal hypothetical that can make case law, Duke accepts federal funds, and is therefore a state actor (Section 1983). They are bound by federal restraints. Does that policy you cite comply with federal requirements?

However, and this is definitive, if you would like to know what every lawyer has known for some time (and I can assure you, so do the players’ lawyers), a faculty member is an agent of Duke as his employer, tenured or not. If he makes statements that the individual knew or should have known were demonstrably false, and cast the object of that statement in a false light and/or as a subject of scorn in the community at large, that person (or 88 of them) are liable for slander/libel (nice little conspiracy theory here as well). However, the statements, made in the course of employment, makes Duke University liable under the concept of Respondeat Superior.

Thus, freedom of speech is limited, be one a whacky professor or not. But buck up, because I can tell you right now CNN is going to get sued (Nancy Grace) and probably a few more news outlets/commentators as well.

On the flip side, that being Mike Nifong, the players have causes of action for violation of their civil rights under color of law (42 USC Section 1983). Mike Nifong, in a moment of galling stupidity, decided to make himself the lead investigator on the case. The reason this is ridiculously stupid is because as a prosecutor, Nifong enjoys absolute immunity. However, as a police officer, and his role was primarily that of a police officer when he named himself chief investigator, that immunity falls to qualified immunity. Thus, if the players can prove malice (and they have that), Nifong, the police officers involved, the City of Durham and the County can all be held liable for damages.

Finally, because the accused players are residents of different states, they can (and will) bring their claims in the United States District Court for the Eastern District of North Carolina (for the common law torts, the federal claims have venue there in any event). Thus, the NC machine will not be guarding Duke, its profs, the police, the city, the county, and Nifong. A federal judge will roast all of these individuals and entities over a stove. In short, and based upon my experience in the 4th Circuit, he will hate them. Further, the Federal system allows for discovery that one never receives in state court, and everything will come out, from e-mail communications to conspiracies to hide evidence.

I hope that helps you understand what is at play right now. Nifong is keeping two charges alive to save his own skin, hoping against all hope that they survive long enough to keep him away from bar counsel, and to save him from civil liability. He wants the accuser to say she does not recognize the players because he sees that as another way to save his own skin, and to lay the blame on her feet. All of these tactics you are seeing now, which are odd, are merely ways in which different individuals and entities are trying to mitigate their risk and damages.

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