Guest post: Where is tort (anti)reform in politics now?

Alex Nee, a student in my Torts I class, posted to the class website links to Ralph Nader in Harper's (April 2016) and Michael Shammas's reaction at The Huffington Post (May 2016), reflecting on the latter in the context of our study of American tort law.  Alex's opinions are of course his own.  I think his revival of these pieces and his comments speak to something of the voter's frustration in this election cycle, as linked to questions about dysfunction in tort law.

When our class watched the special on New Zealand's lack of fault-based tort law [excerpt from Adrenalin Nation], I had mixed feelings. On the one hand, it would be nice to have a more efficient system in place to ensure damages were looked after in a timely manner and without the need for costly trials. On the other hand, lawsuits and trials serve as a deterrent to negligence and malpractice. So how can America balance the two?

Tort reform is something that is always being tossed around in political and legal circles. What is needed to accomplish efficiency, advocacy, and deterrence is something that can be debated. What Shammas, the author of The Huffington Post article, suggested, however, is that there is no debate that the tort system in America is broken.

Shammas suggested that the demand for reform comes from a number of factors including lobbyists, political polarization, the lack of a functioning jury system, and a number of "deforms" ranging all the way back to the 1960s. I am of the opinion, coming from a political science major, that a lot of these problems stem from a broken political system. Few people will debate that something is wrong with American politics; just look at whom we nominated for President.

The constant polarization of the parties and the greed for power and re-election (over the need for advocacy of constituents) forces politicians to act unreasonably. Rather than advocate, they want money and power. Jury trials take too long and are not viewed favorably by Big Money. If I ran a company that could be sued for negligence, I would want the "system" rigged (or at least very lenient) against plaintiffs so I would not have to pay damages easily. To that end I would donate and support candidates who oppose trials, juries, and reforms that might favor them. Like Nader, Shammas concluded that this position is not in the best interest of the American people.

Shammas cited Ralph Nader's article in Harper's about the lack of a functioning jury system in American tort law.  Juries were designed to democratize courts. Rather than a few elites deciding the fates of the laymen, the laymen themselves would decide the facts. The verdict would be skewed toward Big Money and elites if the jury were not present. This is why our Founders framed the jury right in the Seventh Amendment.

Shammas ended on a note that common law is lagging even farther behind than it should. In today's day and age, technology and information is changing on a daily basis. New tech comes out faster and faster. Last year's model is obsolete, time to upgrade. The common law cannot keep up with our fast-paced society looking for modern answers to law. This is another weakness perpetuated by the broken political system.

The Legislature is supposed to step in and assist where common law lags behind. But the inefficiency of Congress and the constant bickering of States results in a sub-par system of balancing common law. It seems that a majority of politicians would rather talk about how amazing they are and the sins of the other party than talk about how we can fix broken systems or update the laws to reflect society's standards for right and wrong.

Alex Nee has a B.A. in political science from Gordon College in Wenham, Massachusetts, and is a J.D. candidate at UMass Law School. He has worked most recently as a service associate for Mid-Cape Home Centers, a communications officer for the American Red Cross, a legal clerk for Cape Cod Media Group, and a parking enforcement officer for the Town of Barnstable, Massachusetts.

The NFL and the Dramatic Arts

Last week, in The Death of Civil Justice, I mentioned Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979), in which U.S. District Judge Matsch wrestled with the Tenth Circuit over the role of the courts in oversight of on-field sport misconduct (think cousin problem, Deflate-gate).  Hackbart involved a strike on the body of Dale Hackbart (later an advocate for male breast cancer awareness) by opponent Charles "Boobie" Clark (since deceased) in a Bengals-Broncos clash in the early 1970s.  Judge Matsch would have left the matter within regulation by the sport, but the Tenth Circuit thought that the common law of recklessness afforded a backstop in tort to ensure that the rules of civilized society do follow the players onto the field in some fashion, as an Illinois appellate court once put it.

Well just this weekend a similar, yet curiously different, after-the-whistle scenario unfolded in an American football game between Florida Gators (I know you were watching, Prof. Andrew McClurg)
wide receiver Brandon Powell and Tennessee Vols defensive back Rashaan Gaulden.  Sideline cameras were not on them at the time, but aerial footage shows what appears to be Powell throwing a punch at Gaulden and (intentionally?) not connecting, and Gaulden hitting the ground (show?).  The refs took the incident seriously enough that after much deliberation, they ejected Powell. 

CBS commentators were initially harsh on Powell, angry and forlorn as he walked to the locker room just before a commercial break.  But after the break, they had changed their tune and apologized to him, turning their venom on the refs.  One commentator took the opportunity to impugn soccer (really necessary?) with reference to Gaulden's dramatic performance, and another invoked Greg Louganis in an awkward metaphor for "taking a dive."  The commentary itself makes the clip worth watching, and at least at the time of this writing, it's available here: "Flop of the Year."

The case is easier than Hackbart's, as he suffered debilitating injury that contributed to the end of his athletic career.  The problem in Hackbart was one of consent: What exactly does an NFL player consent to?  It can't be that the consent analysis requires a player to consent to the precise nature of collision that might occur in every play.  But it can't be either that a player does not consent to a scope of possible violence, going even beyond the rules of the game but within the contemplation of penalty assessment.  Consent must be to some hard-to-define cloud of possible eventualities, not too specific, not too broad, and none too pleasant.

Consent could come in to play in arguable assault--causing apprehension in another without resulting contact--just as well as battery.  But assault, if even that was Gaulden's intent, does not seem so urgently to invite the courts to second-guess governance within the sport, as a policy matter.

Anyway that's just a thought experiment, as no one is suing anyone.  Players are at least that tough.  And concussion-gate notwithstanding, football self-regulation has come a long way since Billy "The Gun" Van Goff.

The Death of Civil Justice: It Was a Good Run, 900 years

Opening panel at Anglia Ruskin University Sports Law 2016: Leonardo Valladares Pacheco de Oliveira, Ian Blackshaw, Tom Serby, Andrew Smith, and Antoine Duval

Last week I was privileged to attend a tremendous one-day Sports Law program at Anglia Ruskin University in Cambridge, UK, focusing on the question, “the future of ‘the legal autonomy’ of sport.”  Experts in the academy and in practice gave timely and informative commentary on contemporary sport governance from perspectives of contract law, politics, and dispute resolution. 

Though justifiably through the lens of sport, the program raised a broader and important question concerning the future of civil justice.  Dispute resolution in international sport today is the province of the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland, under the very loose supervision of the Swiss Federal Tribunal.  CAS has a complicated relationship with international sport governance organizations such as the IOC and FIFA.  Certainly the court is not their stooge.  At the same time, through the magic of contract law, the mandatory use of the arbitration system carries down through the echelons of world sport from the IOC to the national sporting federation, and all the way to the athlete.

Transnational sport governing bodies, such as the IOC and FIFA, want their disputes handled in this single channel, because it renders them largely immune to oversight by the democratic instrumentalities of the world’s governments, especially the courts.  The transnationals have legitimate and less legitimate motivations.  They fairly worry about potential liability in multitudinous courts, each national judiciary applying its unique domestic law anchored in local priorities and prejudices.  Bypassing national legal systems, the transnationals can conserve resources for objectives in the public interest, such as sport for development and peace, and the promotion of human health and competitive achievement.  The logic supporting consolidation of international dispute resolution under one supra-national banner is the same by which the U.S. Constitution places interstate commercial disputes in U.S. federal courts, supervening the potential vagaries and favoritisms of the states.

But international arbitration has its dark side—in fact, nearly literally, as CAS operates in the opacity that typically surrounds arbitration.  Observers, including journalists and NGO watchdogs, grow frustrated and skeptical, as secrecy breeds unfairness and unaccountability.  This problem is the same that has generated angst within the United States over the “secret justice” system that has so thoroughly superseded the civil trial—see the excellent work of the Reporters Committee for Freedom of the Press in its Secret Justice series, linked from here. 

Further threatening the integrity of these proceedings, the contracts that bind parties to arbitration, and are then construed in arbitration, generally are adhesion contracts: drawn up by the transnationals themselves, weighted to their favor, and presented as fait accompli to young athletes with Olympic gold medals dancing in their dreams.  Barrister Andrew Smith, Matrix Chambers, conceded that these contracts are not meaningfully negotiated.  Their acceptance at the international level apparently marks the same phenomenon that has been documented with alarm, but as yet no serious reform, at the consumer level within the United States in works such as Nancy Kim’s Wrap Contracts and Margaret Jane Radin’s Boilerplate.

Upon my inquiry, Smith pointed out that for many reasons, athletes, given the choice, would themselves prefer arbitration to redress in the courts.  A plaintiff often desires secrecy as much as a defendant.  An expert arbiter might be more likely than a civil court to reach a conclusion that recognizes the nuances of divided merits, rather than erring in favor of dismissal as against the plaintiff’s burden of proof.  Though affordable representation for claimants has been a problem for the CAS system, organized arbitration systems still do a better job looking out for claimant’s access to representation than the usual civil court.  And most important to potential litigants are the time and costs of civil justice, often prohibitive deterrents that make faster and cheaper arbitration more appealing.

Nevertheless, panelists agreed that for the arbitration system to work fairness, stakeholders including athletes must take part in developing the process.  Conference organizer Tom Serby of Anglia Law School emphasized the need for democratization of sport governing bodies.  Smith said that organization of athletes into representative bodies is essential, noting with approval that “the United States is farther along with collective bargaining.”

With disparate levels of enthusiasm for the merits of judicial abstention, three speakers—Serby; Antoine Duval of the Asser Institute,Den Haag; and Simon Boyes of the Centre for Sports Law atNottingham Law School—all opined that national courts have been generously deferential to private dispute resolution in international jurisdiction.  Quotes from the iconic British jurist Lord Denning were offered both for and against the position.  Denning on the one hand bemoaned the courts’ relative lack of expertise in matters of private regulation, respecting the brightly formalist lines of conserved judicial power.  On the other hand, he declared, as quoted in Baker v. Jones, [1954] 1 W.L.R. 1005, “‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’”  Duval and Boyes mapped the ground between, where court intervention seems justified.  Boyes boiled down viable grounds to the protection of natural justice, human rights, and free competition and trade.

Incidentally the same autonomy question was taken up in similar dichotomy by Judge Richard Matsch and then the Tenth Circuit in Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979).  Asked to intervene after an on-field altercation, Judge Matsch opined, on the “larger question” of “the business of professional football” and “the business of the courts,” that “the courts are not well suited” to allocate fault or probe causation.  For fear of excessive litigation and inconsistent rulings, any “government involvement” in the “self-regulated industry” of professional football was, in Matsch’s view, “best considered by the legislative branch”—Denning-like formalism.  Instead applying the law of recklessness to the dispute at hand, the Tenth Circuit disagreed.  Persuasive was the oft quoted reasoning of the Illinois Appellate Court in Nabozny v. Barnhill, 334 N.E.2d 258, 260—if a decision about teen athletes playing that other kind of football—that “some of the restraints of civilization must accompany every athlete onto the playing field.”

Well intentioned aspirations for meaningful athlete-as-stakeholder involvement and debate about the selective intervention of courts all gloss over the broader and more troubling trend of public, civil justice eclipsed by the private sphere.  I confess that what troubled me most about the sports lawyers’ commentaries on arbitration and autonomy was a problem beyond the scope of their charge: the disappearance of civil justice in our society at large.

Plenty has been written at the national level about vanishing civil justice and the rise of private dispute resolution.  But as the realities of globalization decree that every dispute becomes an international one—whether a youthful athlete against an international federation, or a homeowner against a floorboard maker—it it seems that public civil justice is dying.  Blind deference to adhesion contracts is hastening the trend, and the courts seem plenty eager to stand by and cede power.  They purport to further the laudable aims of deference to experts or freedom of contract.  But courts have always been in the business of second-guessing professed experts, and the contemporary commercial contract is hardly a product of free choices.

Dystopian science fiction in popular culture has in recent years flourished upon an obsession with burgeoning social angst over the corporatization of public life.  In 2013 and 2014, the Canadian TV series Continuum traced the personal struggle of an anti-terrorism agent who came to doubt the virtue of the corporate-dominated future she was sent back in time to protect.  Themes of abusive corporate supremacy and submissive, corrupted government dominate the visions of current hits, such as Killjoys and The Expanse, the latter based on the novels of James S.A. Corey.  The next year will see the premieres of Incorporated, a dark Matt Damon-Ben Affleck project, and the plainly titled Dystopia, which imagines 2037: “Governments are now powerless puppets for the biggest corporations.”

Western democracy has 900 years of experience developing a public system of civil justice to patrol the boundaries of right and wrong among us.  We ought not jettison that system so readily, nor so casually.  We ought not capitulate to the conveniences of globalization, nor certainly to the burdens of transaction costs.  Would that we spend more time and energy trying to fix the public system that we have rather than ushering it into the past and replacing it with the corporatized private justice of our nightmares.

“A Fair Shake for the Sheikh,” or “Cut Qatar Some Slack”: On World Cup 2022

My photo at a Qatar Stars League double header in March 2016: Empty stands tell the tale of native public interest in football.  However, Prof. Susan Dun reported that populous foreign laborers do pack matches for the leagues they follow: another piece of the untold story in Qatar.

I was just in Oxford, UK, for “Sport 5.”  (The full name of the conference, sponsored by Inter-Disciplinary.Net, is in the previous post about my contribution there.)  I tweeted some of the highlights of Sport 5 (link to Twitter from the ribbon atop this page, Sept. 13-15, 2016).  I want to share a bit more about one paper at Sport 5 that stood out for its unconventional thesis.  The paper came from this year’s conference coordinator, Professor Susan Dun, a communication scholar at Northwestern University in Qatar.

I don’t want to steal Dun’s thunder or evidence, so I’ll give only cursory treatment to her thesis and outline three rationales that I found persuasive.  My own impressions have mixed with recollection, so blame me for any misstatements.

In essence, Dun posited that however much Qatar deserves condemnation for corrupt dealings with FIFA (see generally Blake & Calvert’s The Ugly Game), the ills of the kafala labor system, or dreams of air-conditioned desert stadiums, the regime is not getting a fully fair shake in global perception.  She made a compelling case, and activists, journalists, and scholars investigating the social and economic implications of the upcoming World Cups in Russia 2018 and Qatar 2022—myself included—should take note.

First, Dun placed the Qatari bid for 2022 in the context of Qatar’s ambitious struggle for political legitimacy through soft-power sport.  In its rush onto the world stage, Qatar was not ready for intense scrutiny and scathing criticism that accompanied the award (and then was amplified by the FIFA corruption fiasco, pointed out David Storey of the University of Worcester, who, by the way, presented a fascinating paper on the GAA).  Within Qatar, criticism of Al Thani leadership is not just legally problematic, but socially taboo.  So Qataris were utterly ill equipped to respond to an external public relations crisis in a way that would have seemed natural to Western observers—with press conferences, collaborative inquiries, and affirmative information dissemination.  Instead Qatar took an outmoded defend-or-deny stance, which only bloodied the waters.

Second, Dun explained that Qatar actually implemented a great many reforms to redress exposed deficiencies, for example, illegalizing passport retention and improving living conditions for foreign laborers.  The communications failure has meant that reform stories have not gotten much play.  Meanwhile, reform has been slowed by understandable challenges.  Employers might still seize passports.  Wrangling the middlemen is a laborious process in part because rapidly developed Qatar lacks regulatory and enforcement mechanisms that Westerners take for granted in key areas, such as workplace safety and banking.  Communications failure again means that these impediments are not explained.  Reform is necessarily incremental, but unresolved problems on the ground are misconstrued to signal government indifference, if not malice.

Third, Dun documented a media affection for criticism of Qatar.  In part the penchant seems driven by ignorance.  Journalists, bloggers, et al., tend not to be familiar with Qatar, so are more likely to republish judgmental commentary without critical analysis for fairness and accuracy.  I suspect that hostility toward a wealthy Islamic state in the post-9/11 era also plays a role.  Again, communications failure exaggerates the problem.  Dun gave evidence that even Russia is more likely than Qatar to get a fair shake in media coverage.  I can attest that in my own research, I only recently read about changes in Russian labor law—allegations not unlike those that have plagued Qatar for years—to hasten World Cup infrastructure development at the expense of worker rights.  (See Martin Müller, How Mega-Events Capture Their Hosts: Event Seizure and the World Cup 2018 in Russia, Urban Geography, 2015, doi).

Dun got push-back in discussion with Sport 5 attendees, but she held firm.  To be clear, Dun makes no motion whatever to justify human rights abuses; quite the contrary.  She simply laments that the whole story of Qatar's reform is not being told.  It would be a mistake to pull the World Cup from Qatar, she says, because there are desirable reforms occurring that should not be undermined.  (This is happily consistent with Benavides and my extension in World Cup Dreaming of Jeremiah Ho's incrementalist theory).  She makes that case well enough that those of us who fancy ourselves objective observers should pay attention.