War protests expose double standards in higher ed

Ted Eytan CC BY-SA 4.0

I've refrained from commenting on the Israel-Hamas war, specifically and especially on the eruption of conflict, mostly, fortunately, non-violent, in higher ed in the United States, in which my own interests in academic freedom and free speech are most immediately implicated.

Despite my reticence—I'm under water with exams and a textbook deadline, though I follow the war closely in the news and remain in contact with friends in Tel Aviv—I read something in The New York Times that hit the nail on the head, so I want to amplify it.

In "Why Campus Speech Is Vexing" for The Morning from the Times, David Leonhardt wrote today:

[U]niversity leaders do face a basic choice. Do they want to expand the list of restricted speech to include more statements that make conservatives, Jewish students and others feel unsafe? Or do they want to shrink the list and tell all students that they will need to feel uncomfortable at times?

What since-resigned UPenn President Liz Magill said to Congress—essentially that the First Amendment protects a call for the genocide of Jews in the political abstract, absent hallmarks of unprotected speech such as incitement to imminent violence, or the severity and pervasiveness that characterize harassment—however socially and politically tone deaf, was technically a correct statement of the law from the former professor of constitutional law and Stanford Law dean.

The problem that Leonhardt recognized is that the First Amendment is not the standard that university administrators and their henchpersons have been applying on campuses for decades. Rather, hate speech codes, anti-discrimination policies, anti-bullying rules, and related prohibitions have proliferated and been enforced vigorously, First Amendment notwithstanding. And the standard has been a double one, because enforcement has been variable based on viewpoint, protecting only favored classes of minority persons or condemning disfavored, read: politically incorrect, viewpoints.

The problem is only compounded for university faculty, who are supposed to be the standard bearers for free expression, but have our livelihood hanging in the balance. At renowned schools where misdoings garner headlines, faculty might have a fighting chance to protect themselves. But what I've seen at the universities where the rest of us work, in the trenches, faculty routinely are intimidated, disciplined, and terminated for not toeing the line. When it happens in flyover country or in the lowest tiers of rankings, no one bats an eye.

When I was accused of stepping out of line years ago at another institution, Foundation for Individual Rights in Education founder Harvey Silverglate gave the local paper a quote condemning me. He apparently responded to the paper's inquiry with the assumption that a typically liberal law prof had gone off the rails. He failed utterly to learn anything about the case before he opined on it. When a mutual friend reached out to tell him that "he got it wrong," FIRE adjusted its public position thenceforth. But Silverglate never retracted his remarks, nor ever said anything apologetic to me.

At the University of Massachusetts Law School, which ranks at #167 in the U.S. News ranking of U.S. law schools, I've been told that University of Massachusetts policy, which requires that all employees show "respect" for all other employees, is violated by calling out misfeasance. So when I see an opportunity through faculty governance to do things better for our students and our community, I keep my mouth shut.

Tenure means nothing in these fights. I wrote many years ago about that paper tiger. Big-name-school academics, who don't have to toil at the hamster-wheel-spinning labor of assessment data collection and interim-strategic-plan-benchmark-attainment reports, don't well understand how faculty governance roles, as distinct from teaching and research responsibilities, are weaponized against faculty in the schools of the trenches.

Just last week, I completed a survey on academic freedom by the University of Chicago NORC that asked about ideological intimidation of faculty. The check-all-that-apply list of contexts in which intimidation or suppression of viewpoints might happen named a range of research and teaching contexts, but, true to form, University of Chicago, said almost nothing about school and university service roles. I added the response in "Other."

Professor Keith E. Whittington recently published a characteristically compelling paper on faculty "intramural speech" and academic freedom. It doesn't cite my 2010 work, in which I coined the term "penumbral academic freedom." I was working in a flyover state then, so it's like the paper never existed. Or maybe, as an east-coast, Duke Law would-be mentor once gently advised me when I was toiling voicelessly in flyover country, I should accept that my writing just isn't very good.

Well, I digress. My aim here is principally to say: When Magill fell, and as Harvard President Claudine Gay flounders, I'm torn between a head-shaking sorrow for the supposed quintessential marketplace of ideas and a mite more than a modicum of schadenfreude.

Back to work. The provost's dusty bookshelf is crying out for another strategic plan, and these exams aren't going to grade themselves.

FTC 'junk fees' proposal needs tightening

The CFPB is attacking junk fees in banking. The FTC rule
would govern consumer sales transactions. CFPB image.

Today I submitted the following comment to the Federal Trade Commission on the notice of proposed rule-making regarding "Trade Regulation Rule on Unfair or Deceptive Fees." These are the "junk fees" that the Biden Administration has pledged to combat.

The NPRM was published on November 9, 2023. You too can comment at the Federal Register website. You can bet that business will be crying loudly about the impracticality of simply telling customers what the price of a thing is.

I support the proposed rule, though I don't think it goes far enough. My comment focuses on select points of ambiguity on which already I foresee business intransigence.

Elsewhere in the world, even tax is part of a price. When my friends and family visit from abroad, they are flummoxed by the repeated experience of seeing a price and then having to pay more. For some reason we countenance this in America, as if in some kind of wild West approach to market regulation, it's OK for a seller to put a gun to the consumer's head at the point of sale. As I say in my comment, that is not what "free market" means.

---

December 6, 2023

I support the proposed rule because I support free-market transaction and regulatory policy. A free market requires transparency around the terms of transaction to both buyer and seller. When a buyer is surprised by junk fees, that is, fees that are applied to a transaction after the customer believes that she or he has concluded negotiation of the terms, the seller is able to conclude the transaction upon an unfair advantage. It is an appropriate role for government regulation to level the marketplace by ensuring transparency, and that means upfront total pricing.

I note [a] point of potential ambiguity, and, thus, potential abuse by sellers. In the proposed rule, “Government charges” are defined as

all fees or charges imposed on consumers by a Federal, State, or local government agency, unit, or department. This definition covers only fees or charges imposed by the government on consumers and does not encompass fees or charges that the government imposes on a business and that the business chooses to pass on to consumers.

I anticipate argument over two points.

First, I expect that quasi-governmental actors, such as a corporations created by statute, and government contractors, such as service concessionaires, are not agencies of government. Sellers might disagree.

Second, if a governmental actor compels a seller to report and pay a per consumer or per transaction fee, I expect that the fee is nonetheless a fee that the business “chooses to pass on to consumers.” Sellers might disagree.

By way of example, I have just made a car reservation with Avis at BWI. My upfront price was $104.82.

On the payment page, the following fees were added:

• Concession Recovery Fee (11.11%): 12.27
• Customer Facility Charge-3.75/day: 7.50
• Transportation Facility Charge-2.25/day: 4.50
• Vehicle License Fee-0.56/day: 1.12
• Total Tax: 14.97

The additional fees sum $40.36, which is a 38.5% markup on the upfront price.

All of these fees are sanctioned by Maryland law. The former two fees are passed on by Avis to the Maryland Airport Authority (MAA), and the latter fee is, self-evidently, a tax. I do not know the beneficiary of the penultimate two fees, but I assume that the Transportation Facility Charge goes to an MAA shuttle contractor.

So first, is the MAA contractor a “government agency, unit, or department” under the proposed rule? I suggest no, because contractors and concessionaires, like quasi-governmental “sue or be sued” entities created by Congress, are expected to comply with the rules of the competitive marketplace when they act in a commercial capacity. However, Avis might disagree, arguing that the fee is set by the MAA. The MAA is a governmental unit of Maryland state government.

Second, are these fees “impose[d] on a business[,] and … the business chooses to pass [them] on to consumers”? I suggest yes, because Avis owes these fees to the MAA, et al., but is not obligated to pass them on to consumers. As long as Avis accounts for the fees with the government, Avis remains free to price its services as it pleases. Moreover, to calculate the state tax on the car rental, 11.5%, the tax basis includes the fees. Thus, it seems plain to me that the fees represent the price of service and are not akin to a tax that is imposed upon the transaction. However, Avis might disagree, arguing that the seller is a mere conduit for fees set by the MAA.

I suggest that the junk-fee rule is virtually impotent in a broad range of transactions if it does not address fees in a transaction such as this one. While I might like to see tax and all incorporated into upfront pricing—as it is in countries the world over—I understand that that is not the American custom. But any fee besides tax on sale or service should be disclosed to a customer as part of an upfront price. Otherwise, the proposed rule is completely undermined. I must go all the way to the payment page of the Avis transaction before I discover the actual price, a substantial markup, for the transaction I desire.

I hope you will clarify that government contractors and comparable quasi-governmental actors are not governmental actors within the meaning of the proposed rule. And I hope you will clarify that government-sanctioned fees that are incorporated into the tax basis of a transaction, even if imposed on a per customer or per transaction basis, are fees that a seller “chooses to pass on to consumers.”

Professor Marshall Shapo leaves extraordinary legacy

Marshall S. Shapo
Northwestern photo by Jasmin Shah

Barukh atah Adonai Eloheinu melekh ha'olam, dayan ha-emet. 

A luminary in American legal education, a brilliant scholar in torts, and a dear mentor and friend, Professor Emeritus Marshall S. Shapo died Friday, at 87, in Chicagoland.

A professor at Northwestern University Law School for more than 40 years, most of his more-than-half-century academic career, Shapo was a prolific scholar and award-winning authority on torts and product liability law. In his books, articles, and teaching, Shapo saw tort law as inextricable from culture, politics, and society. Accordingly, he approached his subject matter holistically, embracing historical, economic, and critical perspectives as all essential, and none alone definitive, to understand the law.

It was that breadth of perspective that prompted me to adopt the second edition of Shapo's Tort and Injury Law as my textbook when I started teaching torts 20 years ago, in 2003. Reflective of Shapo's versatility of mind and insatiable curiosity, his pedagogy challenged students at once with writings in ancient philosophy and religion, and with theories of economics and feminism. References to the Torah appeared alongside excerpts from research in the latest interdisciplinary social science.

I reached out to Marshall in 2003 for guidance in using his book; I did not then suspect that he would become my extraordinary mentor. I was privileged to join Tort and Injury Law as a co-author for the third edition in 2006. My teaching today in torts, and in Tortz, is and forever will be a product of Shapo's worldview. His teaching lives on in my career and classes, and no doubt in the practices and lives of his generations of students and mentees, and theirs in turn.

Yet Tort and Injury Law was a only small part of Marshall's importance to me. Of incalculable value were his insights into academic life, his counsel, especially in times of hardship, and, so often, simply his enduring friendship. As relentlessly busy and productive as he always was, he called me periodically with no agenda, just to check in. However much I wished not to burden him with mundane ups and downs, he somehow, with the skill of a seasoned counselor, elicited my confessions. His humility and wisdom were invariably comforting. Never was there a frustration—a discontented student, a shortsighted colleague—that Shapo had not faced and hurdled already in his career: evidence that I, too, could land well on the other side.

Shapo above else modeled balance of work and life. His obituary honors his surviving wife, Helene—also an inspiring and renowned legal educator—sons, Benjamin and Nathaniel; and six grandchildren and great-grandson.

Appropriately, Shapo's family led off the obituary, before any mention of his career. Marshall himself placed his wife and sons at the top of his CV. Never did I have a catch-up conversation with Marshall in which he did not update me on their well-being. When speaking of grandchildren, he radiated with a joy that not even product liability litigation could evoke. All of his accomplishments and honors as a lawyer and educator meant nothing to him in comparison with his devotion to family.

Marshall, rest in peace.

The Shapo family invites memorial contributions to the American Parkinson's Disease Association, P.O. Box 61420, Staten Island, N.Y. 10306.

Gunshots are the soundtrack of America

A shooting range features at Elvis's Graceland.
Adam Fagen via Flickr CC BY-NC-SA 2.0

'Tis the season for gunshots and sirens.

The last weekend in October, I spent the night at a Memphis hotel near the airport to catch a 5 a.m. flight homeward. I pulled up to the hotel on Elvis Presley Boulevard in the Whitehaven neighborhood to see people running and chaos at the restaurant across the street, Tha Table. Before long, police came streaming in, sirens blaring. A fire engine and an ambulance followed.

Two men were shot and killed. One was the owner of Tha Table; it looks like he came out into the parking lot to confront would-be car thieves, one of whom shot him with an automatic weapon. The other person killed was a bystander "in the wrong place at the wrong time," Fox 13 Memphis said, merely driving by with his three young children in the car on the way to a park.

A man arrested in the shooting, police say found with weapons including an AR-15 and a Glock with switch (converting the pistol into an automatic weapon), blames his companions for firing the fatal shots, Fox 13 reported.

When I left the hotel later that night, to go to a gym in West Memphis, I had to ask police to let me drive out and back under yellow tape that had cordoned off the block.

That shooting occurred as I arrived at the Red Roof Inn at about 3:30 p.m.  Just eight minutes later, two-and-a-half miles down the same road, a 15-year-old was shot at an Exxon station. According to WREG, he was selling water at the side of the road at the time. He was transported by a private car to the hospital and reported in critical condition.

When I came back from the gym, I fueled up at that Exxon, to return my rental car full the next morning. I didn't know about the second shooting until I got back to my room and checked the news about the first shooting.

About 60 hours later, a 19-year-old sitting in his car at a gas station in West Memphis was fatally shot multiple times by another customer, KARK reported. I was long gone, but that shooting took place 500 feet from the gym I had gone to, just around a corner. I learned of that third shooting when I checked the news to see if anyone had been arrested in the earlier two.

It happens that while I was in Memphis and Arkansas, I visited an old friend and mentor I had not seen in many years. He retired in recent years from work in Memphis and told me he wants to move away. He's tired, he said, of having to worry every day about being car-jacked.

I also visited my aunt and uncle at their home in south Little Rock. They've been renovating, and their place looks great, homey. They're very happy there, my uncle said, except only for the unwelcome ring of gunshots at night. Sometimes the shots ring so close to the house that they fear they're being targeted. My uncle, a Vietnam vet, lamented of the contemporary life of youth in the Little Rock neighborhood: "I'd rather be judged by twelve than carried by six."

When I boarded my plane home from Memphis, I overheard one flight attendant telling another that she's looking for a new apartment. She was working through the calculation of finding lower rent, but having to hear gunshots at night.

As I rejoined the world that Monday, I learned about the Lewiston, Maine, shootings, and that the suspect was found dead from a self-inflicted gunshot wound. He had killed 18 people and injured 13 just before I left home for Memphis. Ensconced as I was in my business away, I had not known the details. It was a kind of blessing, I figured, that I didn't know what was happening. While the suspect was at large, I did not know to worry about my wife in Rhode Island or a friend's son at university in Vermont.

I'm not a gun control advocate. I believe the Supreme Court got it right when it said that the Second Amendment protects an individual right to bear arms. I'm informed by the Second Amendment analysis of my constitutional law professor, William Van Alstyne. I believe that the Second Amendment anticipated the possibility that revolution might one day again be necessary.

At the same time, I don't want life cut short for me, my family, or my friends just because I drove to the park at the wrong time, or a stray bullet pierced the walls of my home. The price of the Second Amendment cannot be that gunshots and sirens are the soundtrack of American life.

Sorry, if you read this far thinking I'd have the answer; I don't. 

I want to be prepared to revolt when the time comes, because I think that corrupt politicians already have aggrandized an excess of power; that they now represent corporations, not constituents; and that the federal legislature has become perhaps irretrievably dysfunctional.

I also want the people I love to be safe against meaningless violence. I don't want to live in the Wild West of the movies.

I want my tres leches and to eat it too.

Court quashes $19m side deal in casino creation

Encore Boston Harbor, shiny and new in 2018.
Photo by Pi.1415926535 via Wikimedia Commons CC BY-SA 3.0

A $19m side deal in a major casino real estate transaction is invalid and unenforceable as a matter of public policy, the Massachusetts Supreme Judicial Court ruled this morning.

The ruling demonstrates the rarely seen hand but overriding importance of public policy in the law of obligations. The state high court was answering a certified question from the First Circuit.

First, some context.

For the record, nobody does corruption in America like northeasterners. It's been eye opening for me, living in this part of this country for the first time in my life, since moving here in 2011: the weird way roads and bridges remain perpetually under construction for decades—the orange barrel is said to be Rhode Island's state flower; the revolving doors that shuffle politicians between corporate boards and regulatory bodies and back again. Everywhere I've lived—"developed" world or not—I've seen the continuum of corruption that runs from smoke-filled rooms to the open-and-legal-yet-shocking. But you have to take your hat off to the New York-Boston corridor, where milking the system is a way of life. If the taxpayer is a cash cow, then this is Big Ag.

It's for that reason that I have found myself strangely attracted, like a rubbernecker to a car wreck, to everything having to do with the creation of a Wynn-operated casino complex, the Encore Boston Harbor, in the once rusty, quaint, and relatively sleepy Boston suburb of Everett. 

I liked Everett when I discovered it. It's rough around the edges, but genuine. I had to be there now and then, and I found both a corner bar and a gym I liked. Everett reminded me of the working-class neighborhoods of my hometown Baltimore. First news of a casino project in Everett broke when I arrived in New England in 2011, so I became interested in the natural social science experiment that ensued.

A piece of the development of the Encore project landed in the courts. When Wynn enterprises sought to site a casino in Everett, they offered to buy land from an outfit called FBT Everett Realty, LLC, for $75m. And because Wynn also was looking for a casino license, the real estate transaction drew the attentive oversight of the Massachusetts Gaming Commission.

As anyone who studies development will tell you, these major land acquisitions are always suspect. I remember when Baltimore announced plans to build the twin Ravens and Orioles stadiums in the heart of downtown, and there were rumblings, however futile, about the strangely coincidental land rush that had occurred in the area prior to the announcement. Too many buyers had political connections, and they profited handsomely by flipping their deeds over to the quasi-public stadium projects. That's how economic opportunity works in America, at least for people who pay the lower tax rates for capital gains.

In Massachusetts in 2011, the commonwealth had newly opened itself to big-time, Las Vegas-style gambling, so the commission was under heavy scrutiny to do its due diligence. Though it couldn't prove the precise relationship, as the Supreme Judicial Court explained, the commission suspected that an FBT co-owner was "a convicted felon with possible connections to organized crime": naturally, a red flag in gaming regulation. To its credit, the commission put the brakes on the real estate transaction and conditioned its casino approval on a renegotiation. FBT had to buy out its suspicious stakeholder, and the purchase price was dramatically reduced to $35m.

One minority owner of FBT was unhappy with the new deal and demanded compensation for the reduction. It happened that the same minority owner had bought out the interest of the problematic co-owner and still owed him money. To quell the quarrel and get the deal done, Wynn made a side deal in which it would pay the minority owner $19m, a proportional share of the price reduction that had satisfied the commission.

Wynn didn't pay, and the minority owner sued, alleging breach of contract, common law fraud, and unfair trade practices under the commonwealth's powerful and wide-ranging consumer protection statute, "chapter 93A." Ultimately resulting in the instant case, the First Circuit asked the Massachusetts Supreme Judicial Court to assess the enforceability of the side deal.

The high court opened its analysis with the supreme public policy of America, "The general rule of our law is the freedom of contract" (quoting Massachusetts precedent that in turn quoted the U.S. Supreme Court in Smith v. The Ferncliff (1939)). "However," the court qualified, "it is 'universally accepted' that public policy sometimes outweighs the interest in freedom of contract, and in such cases the contract will not be enforced" (also quoting state precedents).

I just finished a unit of 1L torts in which the class sees the interaction of tort with contract and equity principles in the assumption of risk. Specifically, we see how theories in equity, if rarely, can quash a cause of action or vitiate an affirmative defense. I hasten to clarify that public policy, like equity, is not a rule of law. It's like someone saying to the court "I should win, despite the rule, because that's what's best for society." It's why the judge gets to wear a sharp black robe, sit on a dais, and wield a gavel: to bring human judgment to bear when the usual operation of law would defy common sense. It's why judges cannot be replaced by AI. Yet.

Gaming regulation is among the "core police powers" of the political branches, the court reasoned. And the legislature clearly empowered the gaming commission to ensure "the integrity of the gaming licensing process" with "strict oversight" and "a rigorous regulatory scheme." The $19m side deal was within the scope of the commission's broad mandate. The deal had not been disclosed to the commission and it was inconsistent, the court opined, with the property sale that the commission approved.

The court had little trouble concluding: "Secret deals in violation of the public terms and conditions required for gaming licensure are unenforceable violations of public policy. They place in grave doubt the integrity of the public process for awarding the license, and thereby defeat the public's confidence in that process."

The Encore project has been a powerful economic boost to communities north of Boston, including Everett, delivering an infusion of business in the billions of dollars. The construction phase especially yielded social and economic benefits, creating jobs and opportunity.

Of course, the secondary effects of "sin" businesses such as casinos don't turn up until the projects have been in operation for awhile, and then especially as they age and decline in high-end commercial appeal. To date, there is conflicting evidence on the social impact of Encore with regard to factors such as crime and the environment. For me, the jury is still out on whether north Boston will see a net benefit from Encore in the long term. I hope it does, but I'm skeptical.

Game on.

The case is Gattineri v. Wynn MA, LLC, no. SJC-13416 (Mass. Nov. 3, 2023). Justice Scott L. Kafker wrote the unanimous opinion of the court. The case in the First Circuit is Gattineri v. Wynn MA, LLC, no. 22-1117 (1st Cir. Mar. 22, 2023) (referring questions).

Bahamian development, identity stall between Columbus, Atlantis; tourist dollars seem not to land

Columbus is absent from Government House, Nassau.

Bowen Yang's amusing portrayal of Christopher Columbus on the Saturday Night Live "Weekend Edition" season premiere in mid-October reminded me of an empty pedestal I saw in Nassau, Bahamas, recently: a sight sadly symbolic of stalled development. 

(All photos and video by RJ Peltz-Steele CC BY-NC-SA 4.0.)

I was in Bahamas on the country's National Heroes Day on October 9. Bahamas replaced its Discovery Day, recognizing Christopher Columbus, with Heroes Day in 2013. The idea is to honor homegrown Bahamian heroes and shed the cultural domination of the islands' colonial past.

I've written before on my conflicted feelings about Columbus Day. So I was curious when my Lonely Planet told me that I would find a Columbus statue presiding over the capital at Government House in Nassau. Indeed, my pre-pandemic Planet was outdated. The statue was vandalized just in advance of Heroes Day in 2021 and moved into storage in October 2022. 

I found not only an empty pedestal with a crumbling top, but closed gates at Government House. Neglected surroundings, outside the gates, unfortunately spoke to my overall impression of economic development in the Bahamas.

Two bridges connect Nassau to Paradise Island.

Infrastructure is in a sorry state. Roads are a mess, and signage is almost non-existent. Business outside Nassau and island resorts is minimal. I tried walking to a purported national park on New Providence, and I gave up the effort halfway for the lack of walkways alongside merciless speeding traffic. Later, I drove to the park to find little more than a set-aside green parcel walled by chain link.

K9 Harbour Island Green School subsidizes most students' tuition.

Besides the country's relentlessly cheerful people, little thrives on the islands, economically. There is the tourism sector, the stunning natural beauty of the islands, and expat enclaves such as Harbour Island and Spanish Wells. To walk from grimy downtown Nassau across either bridge to the touristic sector known as "Paradise Island," where the famous Atlantis development is located, is to transport oneself between worlds. 

A Disney ship departs Nassau before dusk.

I wondered what shop workers on Paradise Island think when they leave the artificiality of the plaster-and-paint retail village, with its Ben & Jerry's and Kay's Fine Jewelry, for dilapidated, rat-infested residential buildings in the city's corners. I wondered whether tourists see the contrast when they are whisked through downtown en route from the airport to Paradise.

The heart of the city undergoes an equally striking transformation almost daily. Cruise ships pull into the port and unleash a legion of passengers into the downtown district. Western stores such as Starbucks and Havianas open up alongside overpriced jewelers and T-shirt purveyors.

(Video below: A funeral procession for Obie Wilchombe, Parliamentarian, cabinet minister, and tourism executive, proceeded through the heart of the tourist district while cruise passengers were in port on October 11. I watched, I admit, from the balcony at Starbucks. Tourists who didn't see the coffin must be forgiven for assuming the lively music signified joyful festivity. Embodiment of the tourism-government complex himself, Wilchombe likely would have approved.)

Bahamas declared independence from Britain in 1973.

Then in the late afternoon, the passengers return to their ships, and the downtown becomes a ghost town. I walked the streets at dusk and came across a few port workers commuting by foot, a few teens joking about, and a scarily ranting homeless man who caused me to cross the street. Every business was shuttered. It was hard to believe the same space had been dense with vacationers only hours earlier.

A night street party in Nassau reverberates.

Walking Nassau at night, the relative silence was punctured by a raging street party. A man told me that it was an anniversary celebration of the most popular local radio station, and entry, food, and drink were free. He invited me to join, and I did. It was a raucous party inside with a rapper dancing wildly on a stage, flashing lights, and, he was right, free drinks and heaps of homemade local eats. I felt like I was crashing an after-hours cast party at a Caribbean Disney World. I was having fun, but I must have looked out of place—I couldn't help but attract attention as the only person not of color—as a couple of well meaning partygoers asked if I was all right or needed help finding my way.

Signs all over Eleuthera Island promise happy Disney jobs to come.

Determined as it purports to be to carve out a national identity free of colonialism, there is a painful dearth of evidence that the Bahamanian government is accomplishing that. The government imposes a hefty 12% VAT on goods and services, and I'm sure the port fees are substantial. Where is the money going?

The International Trade Association (ITA) well described what I saw: "The World Bank recognizes The Bahamas as a high-income, developed country with a GDP per capita of $25,194 (2020) and a Gross National Income per capita of $26,070 (2020).  However, the designation belies the country’s extreme income inequality, as statistics are driven by a small percentage of high-net-worth individuals, while most Bahamians earn far less." The only evidence of infrastructure investment I saw was that which directly benefited tourists and expats.

True to form, on a ferry between Eleuthera and Harbour Island, I overheard a couple of Americans in golf outfits discussing the plusses and minuses of potential investment in an island hotel. They seemed oblivious to the fact that the hotel name they bandied about was sewn into the breast of the short-sleeve work shirt of a local commuter sitting right beside them.

The historic "British Colonial" hotel, Nassau, lost its Hilton affiliation,
but is under renovation with plans to reopen under independent operation.

 

The one-two punch of Hurricane Dorian and COVID took a heavy toll, to be sure. And tourism income is not yet back to pre-pandemic levels. Still, that can't fully explain the development stagnancy I saw in and among local communities.

Perhaps naively, I expected to find the Bahamas more a reflection of the western sphere of influence than of the developing world. It's only a 30-minute flight from Miami to Bahamas, and 85% of imports come from the United States. But on the ground on New Providence and Eleuthera Islands, the Bahamas reminded me less of Florida and more of Guinea-Bissau—a country plunged into darkness last week for failure to pay a $17m debt to its exclusive power provider, the offshore ship of a Turkish corporation.

Two years since Columbus was vandalized and one year since he was packed away, the solution to native identity at Government House is a rubble-topped pedestal and closed grounds. The people outside the gates have embraced National Heroes Day. But there is little information in circulation about who the Bahamian heroes are or why they should be celebrated. 

The government owes its people better. And I wouldn't mind seeing American- and British-owned tourism companies taking some corporate social responsibility—if that's still a thing—to ensure that something of what they pay into the country is reaching the people and lands that truly give life to today's Bahamas.

'Sudden emergency' doesn't spare driver from jury trial

Rawpixel CC0

A medical emergency did not necessarily let a driver off the hook for an injury-accident, the Massachusetts Appeals Court ruled yesterday, in a rare appellate appearance of "the sudden emergency doctrine."

The sudden emergency, or "inevitable accident," doctrine is less doctrine and more self-evident application of negligence law. The simple rule is that if a driver has a medical emergency and thus unavoidably causes an accident, that's not negligence. The doctrine requires that the medical emergency be confirmed by expert testimony.

You can get to that conclusion readily enough through the usual negligence analysis. A reasonable person having a heart attack could not have averted the same accident, so there was no negligence. "Sudden emergency" is just a shortcut that sanctions the conclusion and perhaps enhances a judge's confidence in awarding the defense summary judgment without a jury trial.

By the same token, however, the usual rules of negligence still apply. Saliently, the doctrine relieves the defendant of liability only insofar as the emergency is alleged to have been the proximate cause of the accident. If the plaintiff points somewhere else on the timeline, to a different alleged misconduct as proximate cause, then the defendant is not necessarily off the hook.

That's where the lower court erred in the instant cases, according to the Appeals Court. The plaintiff alleged that the defendant should have known of the risk of his medical condition and should not have been driving. That's a negligence allegation, and driving despite risk is not an emergency.

The medical evidence, even if weakly contested, supported the defendant's theory that he lost consciousness because of undiagnosed sleep apnea. As a result, his truck ran into the back of the unmoving bus ahead, which the plaintiff was driving. The loss of consciousness was a proximate cause of the accident. But not necessarily the only proximate cause.

The plaintiff's experts proffered evidence that sleep apnea is not something that attacks acutely out of the blue. Though the defendant denied chronic drowsiness, he had a medical history of difficulty sleeping at night and heavy snoring. He also suffered from comorbid conditions, such as obesity.

A reasonable person in the plaintiff's circumstances would have been on notice of the risk of driving, the plaintiff argued. And the evidence was sufficiently in dispute that the plaintiff was entitled to a jury trial on the question, the court agreed.

The court also reversed and remanded the summary judgment for the defendant's employer, as the employer would be vicariously liable for its employee's on-the-job conduct. But the court affirmed summary judgment for the employer on the direct negligence theories the plaintiff had leveled against it.

The evidence developed pretrial did not bear out plaintiff's allegations that the employer had any knowledge of a medical condition that could have impaired driving. So the jury may not hear theories of negligent hiring or supervision.

The case is Cottrell v. Laidley, No. 21-P-740 (Mass. App. Ct. Oct. 18, 2023). Justice Joseph M. Ditkoff wrote the opinion of the unanimous panel, which also comprised Chief Justice Green and Justice Hodgens.

Educator, law student earns town board appointment

Sullivan in Weymouth Monday.
Used with permission.

A student in my first-year Torts class was appointed this week to the Board of Health of Weymouth, Massachusetts.

Casandra "Casey" Sullivan was voted onto the Weymouth Board of Health at the Budget and Town Council meeting Monday. Her appointment will take hold officially soon, upon swearing in by the town mayor.

Casey currently works as a school psychologist and outplacement liaison for Weymouth Schools. A proud mother of five and former English teacher, Casey also served as a counter-intelligence agent and linguist for the Massachusetts Army National Guard.

In her spare time, Casey is working toward her J.D. She exemplifies the value of non-traditional students in the law classroom, which affords me an opportunity to learn as much as teach. I look forward to what she will accomplish with a law degree added to an already impressive resume.

Pop culture scholars invite Chicago program proposals

The American Culture Association and Popular Culture Association will meet for the ACA/PCA national conference in Chicago on March 27-30, 2024, and a call for proposals (CFP), including law papers in particular, is open now to November 30.

ACA/PCA is multi-disciplinary and interdisciplinary, and its Law Area has issued this CFP:

LAW AREA

Call for Proposals: Sessions, Panels, Papers for ACA/PCA National Conference in Chicago – March 27-30, 2024

We invite papers and presentations on all aspects of law and American culture and law and popular culture, including but not limited to: representations of the Supreme Court, the Constitution, and current cases and controversies; pop culture depictions of civil and criminal law, attorneys, and the judicial process; cinematic representations of law and justice; papers that comparatively examine the way different literary texts, musical genres or works in art history depict law and outlaws; historic preservation law. We welcome submissions on all historical, interdisciplinary, and contemporary topics related to the justice system and legal practice. Submit your paper or presentation proposal to: https://pcaaca.org/page/nationalconference.

The proposal should include an abstract of more than 250 words, and complete contact information (name, presenter’s institutional affiliation, and e-mail address). Proposals must be submitted through the PCA website. Only current, paid members can submit proposals. The submission deadline is November 30.

Area Chair: Patricia Peknik, ppeknik@berklee.edu

The PCA website further articulates submission guidelines.  PCA membership starts at $50 and includes a digital journal subscription. The PCA conference site indicates that there will be sessions dedicated to undergraduate research.

I'm pleased to share this CFP on behalf of my colleague Professor Peknik at the Berklee College of Music in Boston.

Fitness guru calls on Nigerians to build strength, love

I don't expect I have many readers in Ilorin, Nigeria. Still, I want to highlight the great work of my inspiring and entrepreneurial friend Coach Bext in support of health, fitness, and much more.

Coach Bext is organizing a fitness event (poster) for Ilorin on October 21, 2023, promoting health of mind and body. Instructor Bext Fitness is on Facebook and YouTube. 

I visited Coach Bext in Ilorin, in Kwara State, in December 2022 (below, TikTok via YouTube). Sadly, trouble zones in the country's ongoing uprising are not far north from Kwara (UK FCO map). From Ilorin, I had to fly to the Capital Territory of Abuja because the road was not safe at the time.

In that climate of uncertainty, Coach Bext is much more than a self-help sidewalk preacher. His efforts to channel restless public energy into physical well-being alongside a healthful dose of love and public service is the real message of revolution that Nigeria sorely needs and the country's storied peoples deserve.

Bext would be interested in studying sport physio abroad, by the way, to sharpen his skills to serve Nigeria. If you know of a program that would fund and host an inspiring soul, please reach out to me or to him.

'Statute of limitations is a very real thing in this country'

"The statute of limitations is a very real thing in this country," former President and Republican presidential front-runner Donald Trump told reporters Monday at the New York court where he faces civil fraud claims.

I say the same thing to my 1L class every fall. Finally, some authority to back me up.

Though I can't help but think that the former President is thinking of the E. Jean Carroll matter.  Carroll filed her defamation and battery claims against the former President under New York's Adult Survivors Act (ASA). The act temporarily suspended the statute of limitations for civil claims arising from alleged sexual abuse, allowing a year-long "look-back window." Carroll filed on the day the act took effect.

The ASA opened look-back to all of a complainant's adult life. The window will close on November 23, 2023. In 2019, New York extended the statute of limitations for adult survivor claims from three to 20 years, but the extension is not retroactive. The N.Y. Law Journal reported 67 ASA lawsuits filed by February 2023; according to Katz Banks Kumin, citing The Wall Street Journal, 106 suits had been filed by May 2023. Though in April 2023, The Appeal reported "nearly 1,000" claims under the ASA by incarcerated or formerly incarcerated women against corrections officers.

The ASA was enacted as a political response to the #MeToo movement and a pointed plank in the platform of New York's first female governor, Kathy Hochul. The ASA was modeled on the New York Child Victims Act of 2019, which was in significant part a response to abuse in the Catholic Church.

The Child Victims Act similarly extended the New York limitations period for child survivors' civil claims to a victim's age 55 and opened a look-back window, one year later extended to two, that expired in 2021. That allowance saw "almost 11,000 cases," according to the N.Y. Law Journal. Jeff Anderson has details and data. Child USA tracks such laws across the country.

'Academia is the fifth circle of hell'

Gage Skidmore CC BY-SA 4.0

 

 

[A]cademia is the fifth circle of hell. It goes babies, musicals, magic, kale, academia.

 —Paul (Harrison Ford) to Gaby (Jessica Williams) in Shrinking, "Moving Forward" (s1e9 aired Mar. 17, 2023), written by Sofi Selig

Injured contractor finds no award in ruling spanning worker comp, premises liability, conflict of law

Roof collapsed by snow (illustrative; not this case).
Richard Allaway via Flickr CC BY 2.0

A worker hired to remedy a dangerous property condition could not rely on the known danger to recover against the landowner, the Massachusetts Appeals Court held in mid-September.

On that distinctive fact pattern, the court's thorough opinion gave textbook treatment to issues in worker compensation, conflict of law, and premises liability.

The defendant Massachusetts landowner hired a Rhode Island home improvement company to raze a garage collapsed by snow. Hired in turn by the company, the plaintiff found the garage in its dilapidated state and expressed reservations about safety. As the plaintiff inspected the structure, it further collapsed and pinned him, inflicting bilateral fractures to both legs.

The plaintiff ultimately recovered $19,000 from R.I. worker comp. For further recovery, he sued the company, the company principal, and the landowner. The Appeals Court affirmed dismissal for all defendants.

Worker compensation scope: Worker comp covers employees, not independent contractors. R.I. worker comp initially rejected plaintiff's claim on the grounds that he was an independent contractor rather than an employee. Later evidence indicated that the plaintiff might have signed a document acknowledging status as an independent contractor. Nevertheless, the plaintiff sued over the question. The worker comp system settled for $19,000.

The exclusion of independent contractors from worker comp renders a significant gap in the American social safety net. Highly regulated industries might require that independent contractors self-insure. But a legion of workers, especially in the gig economy, works in a gray area with no contingency for catastrophic loss. The situation is worsened by industry's increased reliance on, and sometimes exploitation of, independent contractors, facilitated in part by the post-pandemic upswing in remote work.

America's runaway healthcare costs and lack of universal medical insurance compound the independent contractor's woes when injury does occur. I imagine that $19,000 did not come close to covering the plaintiff's bills for such serious injury. Plaintiff's attorney fees must be accounted for as well. The plaintiff here might have acknowledged contractor status and aimed for a better settlement against an insurer, if available, for the company or homeowner. That would have been a gamble. The top takeaway for contractors or their attorneys is that self-insurance is a necessary cost of doing business.

Worker compensation bar: One who recovers in worker comp surrenders tort claims against the employer and its agents. The fundamental premise of worker comp is that it supersedes, so bars, tort claims. The plaintiff tried to augment the worker comp recovery by suing the company principal and the landowner. The plaintiff also sued the company itself upon a theory that did not pan out on the facts, that misrepresentation of the condition of the property vitiated the worker comp bar.

The plaintiff's claim necessarily failed against the company principal. The worker comp bar naturally extends to the agents of the employer, besides the company. Employers usually—though not necessarily; caution by an employee entering into the contract of employment always is advisable—indemnify their employees for negligence in the scope of employment. Plaintiffs outside the workplace usually are more interested in pursuing employers than employees, because the employer has more money and an insurer. If a plaintiff could pursue an employer's agents, the worker comp bar would be undermined.

The worker comp bar also undoes the largely historical common law "fellow servant" rule, which released an employer from responsibility for an injury inflicted on one employee by another, but thereby cleared the way for an employee to sue a co-worker. Relieving workers of the harsh consequences of that rule in the age of industry was in fact a key reason the worker comp system came about in America.

Why America has a worker comp system, why it remains narrow in scope, and how it's been diminished by reforms in recent decades are all fascinating stories in their own rights. New Zealand's unusually broad accident compensation system, which substantially supersedes tort litigation over accidents, grew out of worker comp reform in the 1970s. Suffice to say here and now, in its core scope of application, worker comp is a "grand bargain" in which employers fund the system proactively in exchange for workers' surrender of tort claims. That's good for workers in theory, but raises, again, the problem that worker compensation schedules have not kept up with the skyrocketing costs of living and healthcare.

Conflict of laws: the worker comp bar is practically universal vis-à-vis employers and their agents. The plaintiff tried as well to circumnavigate the worker comp bar upon the theory that worker compensation was paid by the company's R.I. worker comp insurer, and that the R.I. worker comp bar does not necessarily preclude tort claims in Massachusetts.

The plaintiff was right that Massachusetts law applied to the case.  Upon conflict-of-law analysis to ascertain the state with predominant interest in the matter, the court agreed that an injury in Massachusetts arising from the condition of a premises in Massachusetts drew Massachusetts substantive law to the problem.

Nevertheless, the court recognized the applicability of the R.I. worker comp bar. The Restatement (Second) of Conflict of Laws opines that a worker comp bar should apply to action in any state. And both Rhode Island and Massachusetts observe both the worker comp bar and its application to companies and their agents. Thus, Massachusetts public policy bore no hostility to importation of the R.I. rule, even to prelude tort claims under Massachusetts substantive law.

Premises liability: A landowner cannot be liable to an invitee for a known dangerous condition when the invitee was invited for the very purpose of abating the dangerous condition.  The worker comp bar does not preclude claims against third parties to the employment relationship. The third party is not part of the grand bargain. Indeed, under state law, typically, an employee or a worker comp system in subrogation may allege a third party's responsibility for loss. An employee successful in litigation might owe reimbursement to the worker comp system. Correspondingly, a worker comp system might owe excess recovery to the employee. Here, then, the worker comp bar did not preclude the plaintiff's suit against the landowner in negligence.

The defendant landowner asserted that the dangerous state of the collapsed garage was "open and obvious," thus invoking a historical common law doctrine.  The fuzzy doctrine has been said to mean many things in many scenarios. In the instant case, the defendant invoked the doctrine to say that the obvious risks of the dilapidated garage should relieve the landowner of the usual responsibility owed to a commercial invitee.

Massachusetts no longer recognizes the common law framework that applies different liability rules depending whether a plaintiff's purpose is commercial (invitee) or social (licensee). The contemporary approach is to charge the jury to consider "reasonableness under the circumstances." There might not be a stark practical difference between the old and new approaches, because the common law framework was grounded in the proposition that as a matter of ordinary practice, "reasonable" people conduct themselves differently relative to invitees and social guests, respectively.

Similarly, the contemporary approach is to reject "open and obvious" as any kind of magical incantation. Rather, the openness and obviousness of the risk also is part of what a court and jury can be expected to consider in the reasonableness analysis. Here, the court ruled accordingly that "open and obvious" is not a rule per se.

However, "open and obvious" remains important as a matter of fact. And on these facts, the openness and obviousness of the risk of the collapsed garage proved dispositive—not because of a blanket rule favoring defendants, but because of the specific reason the plaintiff was invited to the property: to abate the very same risk. The court reasoned:

The [cited] authorities encompass the commonsense recognition that a landowner who has a hazardous condition on his or her property may need to invite onto the property another person or persons to remedy that condition. The law, of course, wishes to encourage behavior that remedies hazardous conditions.... And the person engaged to remedy such a hazardous condition differs markedly from an ordinary invitee. For one thing, there usually will be little question that such a person is aware of the danger, and thus there should be no need for warning. Furthermore, such a person will have held him- or herself out as capable of remedying the condition. Under those circumstances, it is reasonable for the law to reallocate the risk of harm from the property owner to the person who has sought to take on, and to alleviate, the hazard.

The case is Ward v. Schnurr, No. 22-P-372 (Mass. App. Ct. Sept. 13, 2023). Justice John Englander wrote the unanimous opinion of a panel that also comprised Justices Henry and Desmond.

Per 'modern ethical standards,' Mass. museum surrenders $5m bronze for repatriation to Turkey

Portrait of  Lady (AD 160-180)

Public domain/Daderot via Wikimedia Commons

A story of art crime touched Massachusetts early in September, as the Worcester Art Museum let go of a bronze bust of estimated $5m worth for repatriation to Turkey.

The museum purchased Portrait of a Lady (A Daughter of Marcus Aurelius?) in 1966 from Robert E. Hecht, an antiquities dealer. If that name is familiar to American easterners, yes, Hecht was a descendant of the Hechts, 19th century Jewish immigrants from Germany who started a department store chain in Baltimore, Md., my hometown, in 1857. What became "Hecht's" had 80 or more stores in the mid-Atlantic region. When I was a kid, my maternal grandmother loved to peruse the goods at what she still called "Hecht Brothers." The company was swallowed by Macy's in 2006.

Robert Hecht had a checkered career as an antiquities dealer based in Paris. He died in 2012 at age 92. In his obituary, the N.Y. Times described Hecht as "an American expatriate antiquities dealer who skipped in and out of trouble for much of his career, weathering accusations that he trafficked in illicit artifacts." Hecht denied ever having handled stolen goods knowingly. Late in life, he was charged with trafficking in Italy, but the Italian court ruled that the statute of limitations had run.

Hecht Co., Hyattsville, Md., 1959
Library of Congress

Revelation of Portrait's illicit provenance came to the Worcester Art Museum from the office of Manhattan District Attorney Alvin L. Bragg, Jr. And if that name sounds familiar, yes, he's the one on TV charging former President Donald Trump with falsifying business records—for my money, charges of a nature that should have been pursued decades ago and always should have been the people's focus, more than recent, politically charged allegations related to the election in Georgia or insurrection in D.C.

When not on TV for a press conference about Trump charges, Bragg has become famous in the art world for his aggressive campaign to repatriate stolen works. Portrait is but one entry in an extraordinary catalog. A recent press release, for example, announced the return of Nazi-looted art to families of Holocaust victims. The work of the Antiquities Trafficking Unit is impressive, though the D.A.'s press releases read like a vanity project. Must every headline begin with "D.A. Bragg"?

I was keen to see what kind of legal documents the D.A. would file in Massachusetts to take possession of stolen antiquities. But there are no filings that I have found. The Worcester Art Museum "cooperated with the investigation" according to its press release and surrendered Portrait voluntarily.

Renaissance Court, Worcester Art Museum, 2021

Peter E via Flickr CC BY-NC-SA 2.0

The museum not only cooperated, but the press release doth protest too much, methinks, to locate the museum on the moral high ground. Upon purchase of Portrait in 1966, the museum "was provided with limited information about the object's history," the press release said. The D.A. "provided new information" in 2023. "The Museum had never previously received a claim or learned of any defect in ownership."

Colgate art history professor Elizabeth Marlowe doesn't buy it. A student of Bubon, the ancient Roman capital of Lycia, where the Bronze was found in Turkey, Marlowe told WGBH that the museum in 1966 "would have known ... that Hecht was 'a totally shady character'" who had been banned from Turkey, and that the Roman object came from Turkey. Professor of art crime at the John Jay College of Criminal Justice Erin Thompson told WGBH that the acquisition was "like Pablo Escobar giving you a big pile of white powder and claiming you had no suspicion it could be drugs."

Benin Bronze of a Portuguese soldier
at the National Museum of Nigeria, Lagos, 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

Notwithstanding its protestations, the museum acknowledged that "greater diligence" is brought to bear on acquisition today. Director Matthias Waschek said in the press release, "The ethical standards applicable to museums are much changed since the 1960s, and the Museum is committed to managing its collection consistent[ly] with modern ethical standards."

That statement rings true, and I don't blame the museum. To the contrary, current ethical standards are still in flux, and museums are caught in the middle. John Oliver lambasted museums in 2022. While I loved the Oliver segment and agree with his pro-repatriation stance in principle, I find the reality more complicated.

Oliver correctly recognized that statements from western institutions fretting about the security of antiquities if returned to their home countries feel cringeworthily patronizing and colonialist. Oliver highlighted the case of the Benin Bronzes. Nigeria has demanded that the British Museum return more than 900 bronze sculptures the British Empire looted from the Nigerian Kingdom of Benin in today's Edo State (not to be confused with the country of Benin). When I visited Nigeria in 2022, I saw replicas of missing pieces. I met Nigerian people who clearly felt a present and keen sense of injury in the absence of cherished artifacts that define tribal history, culture, and identity. Nigerians should be able to see and experience their own history in museums, just like people in Britain and America. Yet the vast majority of Nigerians will never have the resources to visit the British Museum.

Me and an oversized jollof rice pot at the National Museum, Lagos, 2022.
Learn more at the Kitchen Butterfly.
RJ Peltz-Steele CC BY-NC-SA 4.0

At the same time, I watched in horror at the destruction of the Buddhas of Bamiyan in 2001 and the sacking of the Cairo museum in 2013, the latter of which I visited in the 20-aughts. The Antiques Coalition documents devastating losses in the 2010s at museums in Egypt, Iraq, Syria, Mali, and Yemen. Say what you will about western imperialism, and there's plenty to say, museum sackings are much less common in London and D.C. When asked by a mate of mine how Nigeria would safeguard the bronzes—the country is in civil war in the north—a museum guide said that the items should be returned along with financial support to build secure facilities. OK. But already, then, the matter becomes more complicated, revealing that there's a legitimate debate to be had about how and where we care for the world's cultural heritage.

Founded in 1896, the Worcester Art Museum has plenty to see. The property houses a 12th-century French Benedictine priory, rebuilt stone by stone in 1933. The museum's 38,000-item collection includes more than 2,000 armor pieces, acquired only in 2013 and featured in rotating displays. A special exhibition from October to March, "Freedom to Say What I Please," will feature the multimedia art of activist, artist, and author Faith Ringgold.