As the sun sets in the U.S. East, I was prepared to let Halloween slide by on the blog, even though so many great tort-related items perennially crop up, and an eagle-eyed 1L Jason Jones sent me an excellent story about the super creepy McKamey Manor (YouTube) haunted house in Summertown, Tennessee (Guardian video coverage four years ago). Then Professor Christine Corcos (of Media Law Prof Blog, via TortsProf List) alerted me to WaPo coverage of McKamey, and Ronny Chieng incorporated McKamey into his Halloween edition of"Everything is Stupid" on The Daily Show (here for the blog, not the classroom).
The "petition" referenced in the news coverage (linked above, top) refers to a Change.org petition, not a legal action. Yet. The case would be useful to consider tort claims, such as the infliction of emotional distress, as well as defenses, such as consent and assumption of risk, vitiation on public policy grounds, and the American ethos of personal responsibility.
Thanks to my TA, here's an even better item, funny without the dark angle, bringing a lawyer into the picture: the first two segments of Nathan For You s1e05.
Most recently in June, I wrote about the faculty lawsuit against the University of Arkansas System to protect academic freedom, as the university tries to cut back on tenure protection for both past and future hires. The case is tracked by Professor Josh Silverstein, at his blog, Jurisophia, where the most recent filing is a September reply brief in support of defendants' motion to dismiss.
I had lost track in my inbox of this short segment (click box below) from Fox News in June, below, in which Arkansas named plaintiffs, my friend and mentor Professor-Attorney Tom Sullivan among them, schooled anchors on how academic freedom and tenure should be a bipartisan cause.
The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. complaint filed May 31, 2019).
I've freshly endured my own reminder at UMass Law of how
readily academics turn on each other. As I nurse the knife wound in my
own back, I find myself re-sensitized to how American university
administrators today exploit the ruthless faculty penchant for
self-preservation to further the faculty's own fall
and the rise of bureaucratic hegemony in its place. Ultimately if
indirectly, the most devastating impact of this dynamic is visited on
the students who should be the beneficiaries of the educational mission.
A reporter stopped me on a run last week to obtain my critical policy analysis of the bridge-replacement situation on the East Bay Bike Path. Suffice to say, my testimony was breathless.
So this one was the vision of what happens if things don't go the
way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now
call the neo liberal left was ignoring workers' needs and was not paying
attention to the things that give rise to populism and only the right
was paying attention to those needs.
[Rorty] said, 'at that point, something
will crack. The non-suburban electorate will decide that the system has
failed and start looking around for a strong man to vote for. Someone
willing to assure them that, once he is elected, the smug bureaucrats,
tricky lawyers, overpaid bond salesmen and postmodernist professors will
no longer be calling the shots.
'One thing that is very likely to happen
is that the gains made in the past 40 years by black and brown
Americans and by homosexuals will be wiped out. Jocular contempt for
women will come back into fashion. All the resentment which badly
educated Americans feel about having their manners dictated to them by
college graduates will find an outlet.'
—The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,
quoting the speculative fiction of philosopher Richard Rorty in 1997
The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library. Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal. Ian Donnis, political reporter for The Public’s Radio, will moderate.
The First Amendment has been much in the news lately, in our strange times. Two items from my listen-and-read list. First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.
In part one of three, Marantz challenges First Amendment absolutism. That's not a big reach, but lays out the context for his discussion. In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine. It's familiar territory until he hits Citizens United(about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speechauthor P.E. Moskowitz. The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.
The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality. As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical. Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.
Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection. At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement. Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.
A Sandy Hook parent won a $450,000 defamation award in Wisconsin last week, when I was out of town. The case is interesting not only as a collateral installment in the litigation aftermath of the 2012 Sandy Hook school shooting, but as an installment in the legal system's ongoing grappling with misinformation in mass media, so-called "fake news."
Lenny Pozner, father of decedent six-year-old Noah Pozner, won his defamation suit against Sandy Hook deniers James H. Fetzer and Mike Palecek in June, on summary judgment. A jury trial was had only on the question of damages. In the complaint, Pozner claimed severe mental distress, besides the requisite reputational harm. Now This News has more about Pozner's ordeal, beyond the traumatic loss of his son:
The crux of the falsity in the defamation claim was defendants'
assertion that Pozner was in possession of and distributing a
falsified death certificate. Attached to the complaint, Noah Pozner's death certificate reports the cause of death, "Multiple Gunshot Wounds." Lenny Pozner alleged that the defendants' assertion appeared in a 2016 book, edited by Fetzer and Palecek, Nobody Died at Sandy Hook, and on Fetzer's conspiracy-theory blog. The book publisher earlier settled and agreed to stop selling the book.
James Fetzer is a UMD Philosophy Professor Emeritus and conspiracy
theorist. He retired from UMD in 2006. His theories are his own and are
not endorsed by the University of Minnesota Duluth or the University of
Minnesota System. As faculty emeriti, Fetzer's work is protected by the University of
Minnesota Regents Policy on Academic Freedom, which protects creative
expression and the ability to speak or write on matters of public interest
without institutional discipline or restraint.
The university deserves a lot of credit for respecting academic freedom even in these challenging circumstances. Fetzer meanwhile has cast the loss in Wisconsin as a book banning and offense to freedom of the press.
Fetzer and Palecek have books for all occasions. One title, still for sale, is And Nobody Died in Boston Either, referring to the 2013 Boston Marathon bombing. Three people were killed at the scene in Boston, and more than 200 were injured.
Meanwhile on the Sandy Hook litigation front, the Connecticut litigation against Remington Arms is still pending cert. petition in the U.S. Supreme Court. Remington seeks to nullify the Connecticut Supreme Court ruling allowing victim-family plaintiffs a thin-reed theory to circumvent federal statutory immunity. Plaintiffs filed their responsive brief on October 4, and Remington filed a reply on October 18.
[UPDATE, Nov. 13, 2019: The U.S. Supreme Court denied cert. in the Remington case, so it will go back to the trial court in Connecticut.]
Last week the American Society of Comparative Law (ASCL) met at the University of Missouri Law School. I was privileged to participate among 120 scholars from 20 countries.
As part of the works-in-progress program at the front end of the conference, I presented the most recent iteration of my work on access to information law, comparing private-sector transparency and accountability measures in South Africa with selected standards in Europe.
I benefited from exchange of critique from a room full of participants, including co-panelists James Maxeiner of the University of Baltimore and Kwanghyuk (David) Yoo of the University of Iowa. Maxeiner presented a fascinating comparative study of lawmaking in Germany and the United States, showing the inventive ways that lobbying-driven American lawmakers might learn from Germany's variegated means of incubating potential legislation. Yoo talked about U.S. and European Union court decisions on antitrust challenges to patent settlements in the pharmaceutical industry: when a company settles a lawsuit to keep a patent challenger out of the market, when does dispute resolution cross into anti-competitive misconduct?
The panel was moderated by Missouri’s Mekonnen Ayano, a Harvard doctoral graduate and formerly an Ethiopian judge and World Bank legal counsel. University of Missouri Dean Lyrissa Lidsky, an accomplished media law scholar, attended and live-tweeted the panel.
[UPDATE: Vainly adding photos with me in them, courtesy of Mizzou Law.]
Prof. Maxeiner and I listen in the lecture hall.
I puzzle over dinner options.
I ramble about ATI in Africa with the generous ear of moderator Prof. Ayano.
Whistleblowers are basking in an adoring limelight in the United States right now. They better enjoy it while it lasts, because the American taste for whistleblowing is fickle.
All the attention being paid to whistleblowing in Washington, you would think that whistleblowers are heroes of democratic liberty, Paul Reveres on midnight rides of revelation. Now there’s a second whistleblower, and maybe a third, and, why, people just can’t get in line fast enough to become whistleblowers.
I have to roll my eyes when I hear people waxing poetic over the great tradition of the American whistleblower. Catch those same people on a different day, different issue, or different side of the fence, and they’ll be lashing the whistleblower to the stake and setting their torches to the kindling like it’s the Spanish Inquisition. For much of American history, whistleblowing has been synonymous with disloyalty and treachery.
The Washington whistleblower caused WNYC’s On the Media to replay a 2015 segment in which Brooke Gladstone interviewed language writer Ben Zimmer and consumer protection advocate and civil rights crusader Ralph Nader. The early-20th-century word whistleblowing, Zimmer explained, comes from what it sounds like: a referee blowing the whistle to stop play in event of a penalty. (See Transparency International for the word’s translations, born of other cultural contexts.) No sooner did the word come about that it acquired a dark connotation. It meant, Gladstone said, “to snitch, to rat, to steal.” You can hear that usage, Zimmer pointed out, in the classic film On the Waterfront (1954), in reference to the enemies of organized labor. In this sense, Trump’s “spy” notion is not so far off the mark.
Nader was responsible for turning the word around in the 1970s. He pleaded for insiders to break ranks in his public safety crusade against Big Auto, and he repurposed the term whistleblowing with the positive spin of serving the greater good, despite disloyalty in the short term. So the word is not the thing. Gladstone nailed the salient distinction, which is whether the whistleblowing accords with one’s value judgments. Trump’s traitor is Pelosi’s star witness. Ed Snowden deserves either a presidential medal or an espionage prosecution. Even Upton Sinclair was a duplicitous meatpacking worker.
Blow the Whistle
Our ambivalence about whistleblowers finds expression in law. When we protect whistleblowers at law—common law usually does not—it’s usually a legislative reaction to something awful that happened, when we wonder why no one in the know said anything. While whistleblower protection statutes are prevalent in the United States at state and federal levels, they are often controversial, hardly comprehensive, and likely to pertain only to the public sector. Protection tends to be narrow and sectoral in scope; to depend upon abundant and variable technical prerequisites; and to offer scant shield from the full range of consequences, formal and informal, that the whistleblower faces. Woe to the would-be whistleblower who fails to hire a lawyer in advance to navigate the legal process. The Washington whistleblower was meticulous. The person either is a lawyer or consulted one.
Far from the glamorous escapades of the Hollywood Insider, the real-life whistleblower’s lot in life is lousy. More whistleblowers become infamous than famous, and most become no one significant at all. Typically whistleblowers find themselves, through no fault of their own, in a catch-22. Behind door number one, go with the flow, stay with the pack, look the other way, and sell out your principles. Behind door number two, stand on principle, and probably lose your job, your livelihood, your home, and your friends, alienate your family, and maybe put your life at risk.
To be fair, not all whistleblowers are motivated by altruism, and not all whistleblower motives are altruistic. Sometimes whistleblowers themselves are victims of the misconduct they are reporting. Sometimes they are grinding an unrelated ax against a perpetrator—which doesn’t make the perpetrator less an offender. Whistleblowers’ motives can be complicated. People are complicated. Altruism is a factor. Courage is a constant.
Play the Game
Last week, I had the extraordinary experience of meeting some whistleblowers in world sport. For me, it was the highlight of Play the Game, an initiative and biennial conference of the Danish Institute for Sports Studies, its first meeting outside Europe. Play the Game aims to raise ethical standards and to promote democracy, transparency, and freedom of expression in world sport.
Whistleblowing in sport might not sound like a big deal, but it is. Consider that transnational sport governors such as the Fédération Internationale de Football Association (FIFA) and the International Olympic Committee (IOC) are among the most powerful non-governmental organizations in the world. Technically they are “nonprofits,” but no one says that with a straight face. Until recently, FIFA and IOC execs sashayed into the offices of presidents, prime ministers, governors, and mayors like they were Regina George’s mean girls on a tear at North Shore High. There were real costs to their shameless greed: global contrails of worthless constructions, impoverished populations, and broken dreams.
That started to change when FIFA and IOC were exposed as corrupt at their cores. Their corruption was exposed by whistleblowers.
Bonita Mersiades (Play the Game CC BY-NC-SA 2.0)
Bonita Mersiades was a top exec with the Australian Football Federation from 2007 to 2010, when she worked on Australia’s failed bids for the 2018 and 2022 FIFA World Cup tournaments. She blew the whistle on the extraordinary demands that FIFA placed on would-be hosts and her own country’s willingness to bend the public interest to conform. Those tournaments we know now were awarded to Russia and Qatar upon such rank corruption as resulted in a 2015 raid by U.S. and Swiss law enforcement and dozens of criminal indictments. Mersiades herself was outed when the investigative report of Assistant U.S. Attorney (now N.Y. Judge) Michael Garcia was made public.
At Play the Game, Mersiades described social ostracism in her community, loss of her career in sport administration, burglary of her home, and hacking and online harassment. She wrote about FIFA corruption and her experience in a 2018 book, Whatever It Takes: The Inside Story of the FIFA Way.
Yuliya and Vitaly Stepanov (Play the Game CC BY-NC-SA 2.0)
Also on the whistleblower panel (below in full) were Yuliya Stepanova and Vitaly Stepanov. Yuliya was a Russian Olympic runner, and Vitaly worked for the Russian anti-doping agency. Together they blew the whistle on Russian doping, breaking open a massive scandal that rocked Russia and the world, exposing not just systematic Russian doping but reckless, if not criminal, indifference in the World Anti-Doping Agency. With good reason, the Stepanovs feared for their lives. They applied for Canadian asylum and now live in the United States (with their adorable little boy, also in attendance).
Vitaly told a spellbound audience that the stress of the couple’s situation had them on the verge of divorce when, at last, they took the leap into whistleblowing history together. They would have to leave homeland and family behind, and their lives would never be the same. But it was OK, he said, because “after that, … we were united.”
My dinner companions: Mersiades and Dr. Joel Carmichael,
chiropractor to U.S. Olympic athletes
When, over dinner, I lamented the state of patchwork American whistleblower protection law, Mersiades was quick to correct me. It’s much better than Australia, she said. [See UPDATE below.] In the United States, we do have a somewhat vigorous qui tam field. (Read more at Troxel, Krauss, & Chapman.) And the federal whistleblower law now at the heart of the impeachment inquiry is better than the yawning void of jeopardy into which FBI Special Agent Coleen Rowley stepped when she testified in the Senate on 9/11 failures in 2002. She retired from the FBI two and a half years later.
Still, it seems to me that as a society, we should be able to do better. When the dust settles around the peculiarly technically adept Washington whistleblower, we might ought wonder why whistleblowers aren’t all around us—at every level of government, and in the private sector. Did no one at Purdue Pharma know about aggressive opioid peddling? We should wonder why, in the land of the First Amendment, there are so many disincentives—legal, social, economic—for anyone to speak out as a citizen on a matter of urgent public interest.
“It is difficult to get a man to understand something, when his salary depends upon his not understanding it,” Sinclair said in 1934. That’s why the rule of law must support the apostate who speaks the truth.
The documentary Icarus tells the Russian doping story. Director Bryan Fogel also spoke on the whistleblowing panel (above) at Play the Game 2019.
[UPDATE, Oct. 21, at 10:50 a.m. U.S. EDT: A testament to Mersiades's lament that Australian whistleblower protection lags behind democratic demands, witness today's remarkable protest action by Australian newspapers.]
Choosing a legal career that fits a student’s personality, skillset, and
aspirations is the most important and difficult decision a law student
faces, yet only a small number of law schools incorporate
career-planning into their curriculums. Law Jobs: The Complete Guide seeks to fill the gap. Written by three award-winning professors, Law Jobs
is a comprehensive, reader-friendly guide to every type of legal
career. Packed with authoritative research and featuring comments from
more than 150 lawyers who do the jobs, Law Jobs offers in-depth
exploration of each career option, including general background, pros
and cons, day in the life descriptions, job availability, compensation,
prospects for advancement, diversity, and how students can best position
themselves for opportunities in the field. Covered jobs include:
Large and Medium-Sized Law Firms
Small Firms and Solo Practitioners
In-House and Other Corporate Counsel
Government Agency Lawyers
Non-Governmental Public Interest Law
Prosecutors and Public Defenders
Private Criminal Defense
JD Advantage Jobs
Contract (Freelance) Lawyering
Judges, Mediators, and Arbitrators
Judicial Law Clerks
Legal Academic Jobs
Other
chapters address lawyer happiness, the rapidly changing face of the
legal profession due to technology and other forces, the division
between litigation and transactional law, and the top-50 legal specialty
areas.
Together, the authors have received more than thirty
awards for teaching and research, and have written extensively about law
students and lawyers in books such as 1L of a Ride (McClurg), A Lawyer Writes (Coughlin), and The Happy Lawyer (Levit).
One of my long-term favorite podcasts, Planet Money, last week tackled litigation financing. We talk a lot in Torts in law school about America's runaway transaction costs and how they affect, or impede, civil justice. Litigation financing can seem like manna from heaven when one thinks of tragedy-of-the-commons problems such as climate change. But then there are the problems of corporatocracy, secrecy, and the distastefulness of commodification. Planet Money traces our distaste to champerty in British common law. Here's the introduction:
Litigation financing allows third-party funders like Burford Capital
to invest in other people's lawsuits, but it's long been considered
unethical, and is illegal in many places. But justice can
often hinge more on how much money each side has than on what's actually
right or wrong. So Burford argues that allowing investments in lawsuits
will give more people access to better justice. And it's been a good
business for them. But others worry it might warp the justice system.
UMass Law comparative law students asked about legal harmonization in Central America and asked Dean Castro Valle to assess the prospect of a supranational entity in the region, akin to the European Union, that might advance economic development. She said such a project has been in the works since the 1950s. Pointing to present discontent with President Ortega in Nicaragua, for example, she explained that not enough states have been stable and interested in pursuing the project at the same time. Meanwhile she and other legal scholars are working to harmonize civil codes and arbitration process to increase legal certainty sufficiently to attract investment from transnational business.
I've lately been swamped by developments in global information regulation. Here's a round-up of highlights with links to read more.
Google-France feud. Fresh on the heels of Google v. CNIL (read more), tensions are heating up again between Google and France, as Google refuses to play ball with France's new copyright law. The 2019 EU Directive on Copyright in the Digital Single Market aimed, inter alia, to protect publishers from the scraping of their news product for aggregators' clips and snippets without compensation. France was the first country, and only so far, to transpose the directive's article 15 (né draft article 11) into national law. Effective this month, the French law would compel an aggregator such as Google to pay news publishers for the content that appears in Google search results. How much money Google makes from Google News is disputed, but it's a lot. Google contends that news providers are well compensated by traffic driven to their websites. The news industry doesn't feel that way and blames aggregators for killing the business model of news, public interest journalism along with it. Now Google has said that search results in France will exclude content that would require payment under the new copyright law. The News Media Alliance, a U.S. industry association, has called Google's move "extortion."
EU: Global injunction of one country's "defamation." The European Union (EU) continues to amp up internet service provider (ISP) accountability. A chamber of the Court of Justice of the EU (CJEU) ruled that European law—including EU information market directive, the Treaty on the Functioning of the EU, and the freedom of expression—does not preclude a member state from issuing a global injunction to take down unlawful content.
The facts reveal the problematic scope of the state power implicated, as the case arose from a Facebook post disparaging, e.g., "traitor," an Austrian politician. The disparagement was regarded as defamation in the Austrian courts, but would be protected as core political commentary or hyperbolic opinion in the United States and many other countries. The prospect of a state order with global reach was raised by the recent CJEU decision in Google v. CNIL. Slate's take took no prisoners: "In so ruling, the court demonstrated a shocking ignorance of the
technology involved and set the stage for the most censor-prone country
to set global speech rules."
The case is Glawischnig-Piesczek v. Facebook Ireland Ltd., No. C-18/18 (Oct. 3, 2019).
US: Extraterritorial discovery. The Second Circuit meanwhile published an opinion that pushes outward against the territorial bounds of U.S. law. The court ruled that statutory civil procedure under 28 U.S.C. § 1782 may reach records held outside the United States and is co-extensive in scope with the maximum long-arm personal jurisdiction of constitutional due process.
The case arose from Banco Santander's acquisition of Banco Popular Español (BPE) after a criminal investigation and government-forced sale of the latter. Mexican nationals and investors opposing the acquisition sought discovery in the U.S. District Court in New York against Santander and its New York-based affiliate, Santander Investment Securities (SIS), under § 1782. The law compels discovery against a person or legal entity that "resides or is found" in the U.S. jurisdiction.
The court rejected Santander's contention, supported by academic opinion, that the language could not reach a mere "sojourner" in the jurisdiction. The court furthermore held that the presumption against extraterritoriality of statutory interpretation does not apply to a jurisdictional statute, and even if it did, the design of the Federal Rules of Civil Procedure, with which the statute fits, plainly and expressly encompasses extraterritorial reach.
However, the court held, only SIS, not Santander, was within the reach of long-arm personal jurisdiction. SIS was subject to general jurisdiction, but was not meaningfully involved in the BPE acquisition. Santander had hired New York consultants to contemplate an acquisition of BPE, which could subject Santander to specific jurisdiction, but that was an entirely different transaction, prior to the government-forced sale of BPE.
Though the case deals with conventional discovery, it has important implications for transnational business in the age of e-discovery. Expansive U.S. discovery practice is incompatible with more restrictive norms in much of the world, Europe included. Section 1782 is a potentially powerful tool for savvy litigants to get their hands on opponents' materials when foreign courts won't allow it. That's bound to rub transnational business and foreign regulators the wrong way.
The case is In re Del Valle Ruiz, No. 18-3226 (2d Cir. Oct. 7, 2019). Hat tip to New York attorney Ken Rashbaum, at Barton LLP, who telephonically visited my Comparative Law class and referenced the case, and will be writing more about it soon.
Gin labeling and grains of paradise. OK, this is more about misinformation than information, and it is globally important. Law and gin, two great international cultural forces and loves of my life, come together in a recently filed lawsuit over grains of paradise. You can't make up stuff this dry yet thirst-quenching.
In a class-action complaint removed to the U.S. Southern District of Florida in mid-September, plaintiffs accuse Bacardi USA, maker of Bombay Sapphire Gin, and Winn-Dixie supermarkets of selling "adulterated" product, because Bombay gin contains a botanical literally called "grains of paradise." According to the complaint, grains of paradise, scientific name Aframomum melegueta, "is an herbaceous perennial plant native to swampy habitats along the West African coast." Turns out, it's illegal under Florida law, section 562.455.
The ABA Journal explained: "The 150-year-old Florida law was passed when people thought grains of
paradise was a poisonous drug. The misconception likely arose when home
distillers added other, dangerous ingredients to gin to 'mask the awful
distilling and make more money,' according to Olivier Ward, a British
gin expert and consultant who spoke with the Miami Herald." Bacardi is not hiding anything and maintains that its products comply with all health and safety regulations. The complaint itself states that grains of paradise are listed in the ingredients and actually etched on the gin's blue bottle.
The case is Marrache v. Bacardi, U.S.A., Inc., No. 1:19-cv-23856 (S.D. Fla. docketed Sept. 16, 2019).
