Wide-ranging social commentary in Peele's 'Wendell & Wild' pillories privatization, school-to-prison pipeline

Released by Netflix in October 2022, Wendell & Wild is a delightful stop-motion horror animation and none-too-subtle commentary on the school-to-prison pipeline.

Jordan Peele and Henry Selick co-produced and co-authored Wendell & Wild, which is based on an unpublished book by Selick and Clay McLeod Chapman. Comedic genius Peele was fresh off Nope (2022), which I thought was much better than the confused Get Out (2017), though the newer film won zero Academy nods to the earlier's screenplay win and three noms in 2018. Selick is a Hollywood legend, but doesn't perennially produce new work for our pleasure. He co-masterminded The Nightmare Before Christmas (1993) and James and the Giant Peach (1996) in the animation vein, and he did the visual effects for a favorite film of mine, the quirky and underrated Life Aquatic with Steve Zissou (2004).

Wendell & Wild follows teenager Kat (Lyric Ross, Déjà on This Is Us) as she battles demonic forces, including an eponymous demon pair (voiced by Peele and comedy partner Keegan-Michael Key), intent on evil works, including construction of a prison, in the down-on-its-luck earthly town of Rust Bank. Critics harshed on the film for jamming too much social commentary into one vehicle, and, admittedly, Wendell & Wild fires head-spinningly at innumerable targets.

To me, that's the fun of it. Race, education, employment, the institutional church, and the criminal justice system only outline the low-hanging fruit. Through subtleties such as plot device, semantics, and imagery, the film digs deep into nuances, even the socioeconomic layers of natural hair.

Whatever your pet peeve of social dysfunction, you can find it in Wendell & Wild, which is why I first saw the film as a commentary on transparency and accountability in urban development. The demons and their mortal allies are in the privatization-of-state-services game. They plan to build a prison that will do nothing in the way of rehabilitation alongside schools that will do little in the way of education, as building each institution to serve its purpose would be bad business for the other.

What I was inclined to see as a problem in freedom-of-information law, informed as I was by a former student's recent publication on private-prison abuse in Arizona for The Journal of Civil Information, to be fair, is just one angle on the broader problem of the school-to-prison pipeline. In this vein, I shared a scene from Wendell & Wild with my law students.

It happened that Jose Vazquez, communications director for the ACLU of Alabama, keyed in on the same scene and posted it to Twitter (embed below). In the scene, mean-girl ringleader Siobhan (Tamara Smart) starts to put together the evil plot of her parents, urban development power couple Lane and Irmgard Klaxon (David Harewood and Maxine Peake), owners and directors of Klax Corp. How sweet is that multiplicitous naming?

This clip is a spoiler but I really hope it can be used in classrooms and just generally shared because we all need to learn how prisons ruins people's lives, families, and entire towns! We can all imagine better futures and this film does a great job illustrating that. pic.twitter.com/Y2TS31lkAd

— jose bouquet (@josebouquets) October 29, 2022

Wendell & Wild is worth the watch. As Vazquez wrote of the above clip on Twitter, "I really hope it can be used in classrooms."

Polisci papers track Ukraine war to Arctic, UN, internet

The war in Ukraine occasioned several papers at last weekend's annual meeting of the New England Political Science Association (NEPSA) in Mystic, Connecticut.

The NEPSA meeting offers an outstanding opportunity to preview cutting edge research presented in a low-stakes and supportive setting. Long-time NEPSA Executive Director Steven Lichtman, a professor of political science at Shippensburg University, is the brilliant maestro, setting the right collegial tone while supervising a rigorous selection process that guarantees top-shelf work.

Rotating location in New England states, NEPSA has become one of those regional conferences that is so highly regarded as to draw participation from across the country and from neighboring disciplines including law. The program is open to faculty and graduate students; law students of mine have participated in the past. This year the program opened two panels to undergraduate researchers. An extremely selective submission process yielded undergraduate presenters fully capable of going toe to toe with working scholars.

Prof. Steven Lichtman, 2016
RJ Peltz-Steele CC BY-NC-SA 4.0

There is scarcely a corner of politics and its study not being reshaped by the war in Ukraine. So it's no surprise that the war motivated many of the papers at this year's NEPSA. For all that I learned from myriad presenters, I thought I might share just a taste of takeaways related to the war.

★

A Ph.D. candidate at the University of New Hampshire (UNH), Tim Hoheneder is thinking about the effect of the Ukraine war on Arctic politics. He explained that Russia assumed the rotating chair of the eight-state Arctic Council just before the full-scale invasion of Ukraine. The United States said it would not participate on the council during the term of the Russian chair, which ends this summer, in 2023. The United States did say it would continue to work bilaterally with other states on Arctic issues.

Now what will become of the council is up in the air. Major issues affecting global security, involving nuclear proliferation, militarization, indigenous rights, and climate change, hang in uncertainty. Hoheneder's paper is "Science Diplomacy as a Neofunctionalist Tool in a Post-Ukrainian Invasion Arctic."

★

A master's student at UNH, Sarah DeSimone is considering how the U.N. Security Council might be made functional since the Russian veto has neutralized any meaningful response to the war. She explained both the long history of attempted Security Council reform and the recent history of failed resolutions on Ukraine. 

The only reform to the Security Council to gain traction has been the recent Liechtenstein "Veto Initiative," DeSimone explained. The initiative modestly would require that a council state explain a veto. DeSimone voiced support for an amalgam of proposals that have been floated before: First, the veto should be prohibited in matters of genocide, human rights violations, and serious violations of international law. Second, in conjunction with the prohibition, an oversight mechanism should preclude countries from voting on matters in which they are directly concerned. 

Without Security Council reform, DeSimone warned, lack of credibility will render the United Nations "obsolete." DeSimone's paper is "Reforms to the Security Council: Salvaging the Liberal World Order by Examining the Crisis in Ukraine."

★

A senior at Providence College and editor-in-chief of the student newspaper, The Cowl, Sarah McLaughlin spent 46 unenviable days immersed in a Russian social media image board, Dvach (Двач). Her findings are fascinating. She discovered a world of hyper-masculine Russian nationalists almost as disgusted with Vladimir Putin as they are with Ukraine. The community evinces nostalgia for a perceived past of conservative values and faults Putin for not living up to anti-western and anti-liberal values. The community opposes the war in Ukraine and the mobilization of Russians to support it, even as participants depict the idealized Russian man as strong, hardworking, and dutiful to country. Animals, especially pigs and monkeys, represent Ukrainians, women, and Putin in demeaning memes.

McLaughlin's paper is "Russia the Bear, Putin the Pig: Russian Nationalism and the Imagined Community of Memes."

 ✪

NEPSA's next annual meeting is slated for spring 2024 in Newport, R.I.  Look for a call for papers by September with a December 2023 deadline.

No right to physician aid in dying, Mass. high court holds, rejecting analogy to same-sex marriage right

In 2017, Rep. Eleanor Holmes Norton (D-D.C.) and D.C. residents
protest to protect "death with dignity" law from congressional meddling.
Ted Eytan, MD, via Flickr CC BY-SA 2.0

There is no right to physician aid in dying in the Massachusetts constitution, the commonwealth high court held in December, leaving room for legislators to fill the gap.

A cancer patient and a doctor brought the case. The plaintiff patient, a retired physician with metastatic prostate cancer, wanted counseling on physician aid in dying; the plaintiff doctor wanted to give counsel to his patients struggling with potentially terminal illness. Both plaintiffs argued that they could not get what they want for fear that doctors can be prosecuted for the state common law crime of manslaughter, that is, reckless killing, or worse.

The court opinion refers consistently to "physician-assisted suicide" (PAS), but I'm here using the term "physician aid in dying" (PAD), a difference I'll explain. The medical action at issue here is the ability to "prescri[be] ... barbiturates [with] instructions on the manner in which to administer the medication in a way that will cause death." But the plaintiffs confined their demand to patients facing fatality within six months. 

In a footnote, the court said it used "PAS" because the American Medical Association (AMA) prefers the term. The AMA regards "PAD," or the more modish "medical aid in dying" (MAID), preferred by the plaintiffs, as unfavorably "ambiguous."

Massachusetts remains with majority of states in not recognizing PAD right.
Terrorist96 (upd. Apr. 2021) via Wikimedia Commons CC BY-SA 4.0

Facially, both terms are potentially ambiguous; the quibble over semantic precision faintly masks the policy disagreement. "PAS" implicates suicide in the conventional sense, comprising the intentional ending of one's life for any reason, including the expression of mental illness. That's a bigger ask in terms of constitutional entitlement. The 10 states (plus D.C.) that allow PAD, such as Oregon, require a terminal diagnosis and purport to exclude conventional suicide. "PAD" and "MAID," accordingly, mean to narrow the fact pattern to a patient who is hastening a process of natural death that already is under way, or at best ending an inescapable and intolerable suffering.

I learned about this distinction, and more in this area, only recently, as a student in my Comparative Law class is working on a research paper comparing MAID laws in Oregon and the Netherlands. In her early stage of topic selection, I referred her to, and recommend to everyone, my top This American Life segment of 2022, "Exit Strategy." The heartbreaking segment comprises excerpts of Connecticut writer Amy Bloom reading from her book, In Love: A Memoir of Love and Loss, which documented the figurative and literal journey of her and her husband to end his life in Switzerland after his diagnosis with Alzheimer's. I might one day read the whole book, but I'll need to work up the emotional strength.

The court's thorough opinion by Justice Frank M. Gaziano largely tracked the reasoning of the U.S. Supreme Court in declining to recognize PAD as a fundamental right, because it's supported neither by historical tradition nor widespread acceptance. Insofar as PAD is a reality on the ground for doctors and terminally ill patients, it still carries a stigma, the Massachusetts opinion observed. The medical community itself is divided over PAD, evidenced by amici in the case. In the absence of a fundamental right, state criminal law easily survives rational-basis review for substantive due process.

The Supreme Judicial Court recognized its own power and responsibility, in contrast with the more conservative U.S. Supreme Court, to tend and grow the scope of fundamental rights protected in Massachusetts, adapting the state Declaration of Rights to new social challenges. The Massachusetts court exercised that very power when it approved same-sex marriage in the commonwealth in Goodridge v. Department of Public Health (2003), 12 years before the U.S. Supreme Court did likewise for the nation in Obergefell v. Hodges (2015).

Voters reject the PAD initiative in Massachusetts in 2012.
Emw & Sswonk via Wikimedia Commons CC BY-SA 3.0

But the milieu in Massachusetts is hardly conducive to Goodridge delivering this plaintiff ball across the goal line, the court concluded. To the contrary, the court observed, Massachusetts voters rejected a PAD ("Death with Dignity") ballot initiative in 2012 (51% to 49% in "ferocious political battle"), "over a dozen bills" to legalize PAD have failed in the legislature, and statutes regulating healthcare affirmatively disallow PAD counseling.

The court opinion includes an intriguing discussion of standing. The case was something of a put-on, because local prosecutors did not threaten the plaintiff physician with prosecution. Again, the court acknowledged that doctors engage in PAD now, if quietly, criminal law notwithstanding. In reality, there is not a bright line between PAD and appropriate palliative care, or between "terminal sedation" and "palliative sedation." Prosecutors helped plaintiffs to sustain the case by saying that they would not decline to prosecute.

In the end, the court decided the case only in the matter of the physician. The court rejected the plaintiff patient's claim because he had not been given a six-month prognosis, and his cancer remained susceptible to treatment by multiple options. In the patient's defense, I'm not sure someone with a six-month prognosis would have time to prosecute the case to the high court, nor should be expected to. Justice Dalila Argaez Wendlandt aptly dissented on the point. The patient here submitted that he did not necessarily want PAD, but wanted to have the option to be counseled for it if the need arises. Anyway, the court allowed standing for the doctor on a theory of jus tertii ("third-party right"), when one person is allowed to assert the rights of another upon a close nexus of interests. This notion is implicated on the issue of standing in the mifepristone case now before the U.S. Supreme Court.

In separate opinions, Justices Wendlandt and Elspeth B. Cypher left the door ajar to a rights argument on the right facts. Justice Cypher wrote that some "constitutional zone of liberty and bodily autonomy" should preclude prosecution for "late-stage palliative care." Justice Wendlandt reasoned similarly that as a patient approaches death, the state interest in preserving life by way of criminal law wanes, eventually even as to fail rational-basis review of a "nonfundamental right."

Nothing about the court's opinion precludes the state legislature from reengaging with PAD, which has been legalized in the northeast in New Jersey, Maine, and Massachusetts neighbor Vermont.

The case is Kligler v. Attorney General, No. SJC-13194 (Mass. Dec. 19, 2022), available from the Alliance Defending Freedom, a conservative religious freedom advocacy group that participated as amicus on the side of the Attorney General.

Sport researchers examine athlete dissent online

Spencer Peltz, my brother, has published a co-authorship, "Athletes’ Displaced Dissent on Social Media: Triggering Agents, Message Strategies, and User-Generated Responses," in Communication Quarterly from Taylor & Francis.

Here is the abstract:

Organizational dissent is ubiquitous in task-oriented groups, including sports teams and leagues. Yet, how and to whom that dissent is voiced and the responses to dissent can vary extensively. This study investigates how professional athletes enact displaced dissent and how the public reacts via sentiment analysis of Trevor Bauer’s YouTube channel. Findings identified 53 triggering agents that were consistent with those of subordinates in traditional workplaces. A novel triggering agent of external stakeholder management was also identified, which addressed Major League Baseball’s focus and consideration for its public, their interest in baseball, and relationships with athletes. Bauer expressed his dissent via 94 messages, mainly featuring a combination of rhetorically effective strategies and emotional release. Sentiment analysis of commenters’ 1,612 replies revealed rhetorically competent messages were either unassociated with or enhanced negative sentiment, but positive sentiment was created through entertainment (i.e. humor and pressure), inclusion (i.e. coalition building), and shared ideals (i.e. inspiration).

Gregory A. Cranmer, Brandon Boatwright, Jimmy Sanderson, and Angeline Scheinbaum co-authored the article with Peltz, who was the only contributor without a Ph.D. (I know the feeling.) Cranmer is a professor at Clemson University, where he was generously supportive of Peltz, who completed his bachelor's there last year.

Peltz is a digital marketing specialist at Forefront Networks in Austin, Texas.

Lissens presents EU data protection, IoT research

Sylvia Lissens, a Ph.D. student and teaching assistant at the KU Leuven Centre for Global Governance Studies in Belgium, presented part of her doctoral research comparing U.S. and EU data protection law at a doctoral seminar in Lyon, France, in December.

In her research, Lissens focuses on the internet of things (IoT) to examine how American and European law protects the personal data that machines increasingly collect. She has a law degree from KU Leuven and a background in criminology, so is especially interested in government access to personal data, which has been a sticking point in trans-Atlantic privacy negotiations.

Looking at the emerging norms in state legislation in the United States, on the one hand, and at developing data protection jurisprudence in the European Union, on the other hand, Lissens hopes to identify points of convergence and divergence that might smooth the way forward for agreement over data flows.

In Lyon, Lissens presented findings from the EU leg of her research at the International Doctoral Seminar in European and International Human Rights Law, hosted by the Université Jean Moulin Lyon 3. She explained how the broad range of data collected by devices in our homes, from phones to refrigerators, will confront national security and international trade regimes with new challenges in the protection of personal privacy.

Comparative law is among Lissens's teaching responsibilities at KU Leuven. She joined my Comparative Law class by Zoom this semester to provide an EU perspective on contemporary European legal issues. Students' experience was greatly enriched by both her experience as a professional and her informed perspectives as a Belgian voter. I'm privileged to serve on Lissens's dissertation committee.

Paraguay remembers Pres. Rutherford 'Baller' Hayes; still scarred by 1860s war, Paraguay nears election

RBH & I at the Museo Municipal de Villa Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

UPDATE, May 10: The incumbent Colorado Party prevailed in the Paraguayan presidential election on April 30.

The tie between 19th-century U.S. President Rutherford B. Hayes and the distant South American nation of Paraguay endures there today, resonating at the heart of issues in the upcoming Paraguayan presidential election.

Presidential Ballers

Comedian Stephen Colbert joked in October 2022 about Rutherford B. Hayes, bringing to mind a President of curious and far-ranging legacy.

Former President Barack Obama had released a get-out-the-vote video in which he informed young voters who he is and boasted of "the best jump shot in White House history." "He has the best jump shot," Colbert conceded in his Late Show monolog. "But not the best dunk. That was President Rutherford B. Hayes. The 'B' stands for baller."

Colbert showed an amusingly doctored image of a bearded and head-banded Hayes dunking (video below via Internet Archive).

The Real Rud B.

In reality, the "B" was for Birchard, the maiden surname of Hayes's mother, Sophia. She raised Hayes and his sister as a single mom. Hayes's father died before Hayes was born.

An Ohioan, Hayes was a lawyer and abolitionist. He made a name for himself with vigorous and creative representation of fugitive slaves. Hayes was shot while fighting for the Union in the Civil War. His military service was lauded by President Ulysses S. Grant (whose 201st birthday is upcoming), whom Hayes succeeded in the presidency in the Compromise of 1877, resolving the contested election of 1876. Part of the compromise involved withdrawing federal forces from the South, which did no favor for people emancipated from slavery. Hayes can be credited, though, for appointing "the great dissenter" of the Reconstruction era, John Marshall Harlan, to the U.S. Supreme Court.

The flag of Departamento de Presidente Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

Villa Hayes

It happened, also in October 2022, that I visited a distant legacy of President Hayes, a city and department in Paraguay named for him. Departmental capital Villa Hayes, north of Asunción on the Paraguay River, is in the Gran Chaco region. The region was at the heart of the territorial conflict in the War of the Triple Alliance. The devastating and brutal guerilla conflict, the worst of its kind in Latin American history, embroiled Paraguay in war with neighbors Argentina, Brazil, and Uruguay.

Hayes exhibit at the Museo Municipal de Villa Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

After the war ended, in 1876, Argentina and Paraguay disputed their post-war border and asked U.S. President Hayes to arbitrate. Though Argentina had substantially prevailed in the war, Hayes sided with Paraguay in the border dispute and awarded the country the bulk of the Gran Chaco.

To the present day, the region speaks to the arbitrariness of war. Beautiful as it is, the dry and sparsely populated Chaco has struggled to achieve agricultural and economic productivity. Moreover, the region was never really controlled by any of the modern nations that contested it, rather by the indigenous people who knew how to survive there and still do.

There is a parallel between this tribute to Hayes in Paraguay and the monument to President Grant in Guinea-Bissau that I saw and last wrote about in 2020. President Joe Biden recently having marked the 25th anniversary of the Good Friday Agreement in Belfast, it occurs to me that in modern times, the custom has ended of sitting presidents being enlisted personally in dispute resolution abroad.

Paraguayan Presidency

Relative to neighboring Argentina and Brazil, Paraguay lags in development, a long lingering effect of the War of the Triple Alliance. The settlement of the conflict left Paraguay as a buffer between the two Latin American powers. 

Paraguayans are frustrated by the chronic corruption and bleak jobs market that now threaten the long-running rule of the incumbent Colorado Party in the presidential election upcoming at the end of April. Still, the party, in the person of candidate Santiago Peña, an economics professor, has a sound shot at retaining power. Long historical experience with dictatorship manifests as distrust of challengers. Primaries in the fall were marred by a suspicious fire at election headquarters in Asunción. 

Polling in late March in the plurality-takes-all contest showed a narrow and probably statistically insignificant lead by attorney Efraín Alegre, a center-left candidate representing a coalition of more than 20 parties determined to displace the Colorado Party. Apropos of my recent lamentation on Chinese influence in Latin America, Alegre pledges to cut Paraguay's diplomatic ties with Taiwan to smooth the way for Paraguayan soy and beef exports to China.

Fighting shatters peace, rips at progress in Sudan

"Our tea lady" and me in Khartoum, November 2020.
RJ Peltz-Steele CC BY-NC-SA 4.0

I'm saddened by the outbreak of conflict in Sudan, threatening to set the country back decades in development and economic opportunity.

As I wrote in 2020, Sudan was on a promising trajectory for peace and normalization of relations with the United States. The Trump Administration settled tort litigation over the 1998 East Africa embassy bombings; the attackers were alleged to have planned the operation from Sudan. And in December 2020, after a secular legal reform, Sudan was at last removed from the U.S. list of state sponsors of terrorism. The State Department instructed that U.S. businesses could again trade there, cautioning only that state-owned Sudanese companies ought be regarded warily, as corruption remained a problem.

I was in Sudan in November 2020, and the people bore a palpable optimism. Khartoum was littered with the worn and abandoned husks of American enterprises, such as KFC, and there was expectation that they would come back to life soon. One could imagine that the ruddy cola sold in glass bottles bearing Arabic script might give way to authentic Coca-Cola, for better and worse. From an eager local entrepreneur, I bought ground Sudanese coffee in haute paper packaging printed in anticipation of a new market for exports.

Now military factions are fighting in the streets of Khartoum. Civilian sites, including hospitals and the airport, are under fire. Ordinary people, struggling with food insecurity and climate-change-related dust storms and flooding in the best of times, are caught in the middle.

My associates and I in Khartoum frequented "our tea lady," who ran a thriving street business near a hospital entrance. With unfailing cheer, she brewed tea and fried snacks over hot coals for healthcare workers and passersby. On the sidewalk, she carved out an unexpectedly welcoming space amid the chaos and grime of the city. In a makeshift circle of motley seating on plastic stools and buckets, people from different walks of life and all corners of the world paused, chattered, and laughed.

I hope our tea lady is safe.

Dominion v. Fox News evidences 'actual malice,' also shows how standard has fueled misinformation

(UPDATE, April 18, at 5:17 p.m.: NBC News reported a half hour ago that Dominion and Fox News reached a $787.5m settlement.)

CBS Sunday Morning did a nice piece this week on Dominion v. Fox News and the long heralded, but ever more evidently problematic, "actual malice" standard.

The piece explains the N.Y. Times v. Sullivan (U.S. 1964) "actual malice" standard in public-figure-plaintiff defamation cases such as Dominion, and how the standard is exceptionally provable upon the extraordinary evidence Dominion uncovered about Fox personalities' duplicity in knowingly professing misinformation.

Many a media pundit has made the observation on the seeming provability of actual malice in the case. CBS's voice for the point is that of Lee Levine, a highly regarded, now retired attorney who represented mass media companies in famous cases before the federal courts. In the Sunday segment, Levine says something along the lines of rarely if ever having seen an actual malice case he could believe in before now.

With Stephen Wermiel, Levine wrote a book, Progeny, about the "fight to preserve the legacy of ... Sullivan."  It's a good book on its merits. At the same time, its rhetoric and thesis well serve to bolster the social and economic power of the mass media business establishment.

As on CBS, Levine and lawyers like him often are held up as standard bearers for the First Amendment. But the corporations they represent are hardly freedom fighters in the romantic tradition of the lone pamphleteer.

I've long opposed Sullivan as a matter of constitutional fidelity or First Amendment imperative. It takes ill account of competing values, such as the right of personal reputation that has caused other western-democratic jurisdictions, such as Canada and Europe, to reject the standard as too stringent. As internet democratization has made it easier for ordinary people to be devastated by reputational harm, Sullivan has become ever more indefensible.

Dominion ought not be regarded as the rare exception that proves the rule. The plaintiff-company is able to make its case only because, to date, it has been sufficiently determined and well resourced to get over the many hurdles, such as anti-SLAPP statutes, that usually shield mass media from accountability. Most defamation plaintiffs, if they sue at all, see their cases dismissed without the benefit of discovery.

Dominion ought instead be taken as evidence in the mounting case that Sullivan has been a powerful cause of our misinformation crisis.

Malaysian court upholds civil liability for security firm after employee-bodyguard shot, killed own client

With attenuated liability theories arising from contemporary gun violence proliferating—in lawsuits against parents, schools, sellers, and government—a case of vicarious liability for gun violence in Malaysia caught my attention.

In October 2022, the Malaysian Federal Court affirmed a liability award to a shooting victim against the security firm that employed the shooter.

In 2016, businessman Ong Teik Kwong, whom police investigated for ties to organized crime but never charged, was in a car in George Town, Penang Island, Malaysia, when he got into an argument with his bodyguard, Ja'afar Halid. Halid shot and killed his client Ong, then proceeded to shoot seven other people, killing two.

One of the surviving shooting victims was the plaintiff in the instant case, Mohamad Amirul Amin Bin Mohamed Amir. A news videographer for Radio Televisyen Malaysia, Amirul was passing on a motorcycle and stopped to aid one of the victims. He told the courts that he did not know Halid was armed. Halid shot Amirul. Star TV News reported the lower court outcome in 2019.

Halid was tried, convicted and sentenced to death by hanging. I can find no subsequent report of whether or when execution occurred.

Amirul meanwhile won compensation against GMP Kaisar Security upon a theory of respondeat superior, or vicarious liability running through employment. The Malaysian legal system is a hybrid of colonial common law and customary and Islamic law. The law of obligations with regard to respondeat superior is substantially a product of British common law, and the key test for respondeat superior is the same: An employer may be held liable for the acts of an employee within the scope of employment.

My torts class and textbook introduce respondeat superior in the study of negligence, when many theories of vicarious liability become salient. It's important for students to learn, though, that respondeat superior is not a negligence doctrine. It operates irrespective of culpability.

That said, it's often difficult for plaintiffs to prove respondeat superior liability when an employee commits an intentional act, especially a criminal act of violence. Criminal violence is not usually part of someone's job, so the employee-perpetrator acts outside the scope of employment.

That's what makes the Malaysian case interesting. On the one hand, as a bodyguard, Halid had one of those rare jobs in which committing an act of violence, even a murder, might come within the scope of employment. On the other hand, Halid killed the very man he was supposed to protect.

Those facts suggest that the case would fail upon the usual analysis. But the lower and higher Malaysian courts focused on the carrying of a firearm rather than on the act of killing. In Malaysia, unlike the United States, there is no right to bear a firearm. Licenses are attainable, but the system is restrictive.

Federal Court Judge Harmindar Singh Dhaliwal reasoned:

Now, Jaafar's actions may have been unauthorized by his employer but the pertinent question to ask is whether Jaafar's actions in unlawfully discharging his firearm and causing injury to Amirul was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable. On the facts of this case and for the reasons we have already stated, the answer must be yes. To put it in another way, Jaafar's wrongful act was not independent from the task he was employed to do.

Relying on a Canadian precedent, the court offered a further rationale that squares well with the scope of civil liability in American tort law.

The Supreme Court of Canada ... explain[ed] that vicarious liability is generally appropriately involved where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is a risk to another or to others within the range of apprehension.

The above-referenced cases arising from gun violence in the United States involve direct liability, not vicarious liability. They allege that the defendants were themselves negligent, and that their negligence proximately caused the later intentional shootings. The causal link is not easily proved.

Despite the distinction, there is a common concept animating the imposition of liability upon the attenuation of employment and upon the attenuation of causation. Scope of employment posits essentially that the pursuit of the employer's ends, if not the culpability of the employer, proximately resulted in the employee's injurious act.

All the same, the Malaysian Federal Court's conclusion would be difficult to reach on comparable facts in the United States. With gun possession a matter of license rather than right, it was easier for the Malaysian court than it would be for an American court to focus on the entrustment of the firearm rather than the use of it. As a matter of strict vicarious liability, rather than direct negligence, an American court would not be persuaded easily to effect the same shift in focus.

The case is GMP Kaisar Security v. Amirul, Civ. App. No. 02(f)-44-07-2021(P), [2023] 1 MLRA 99 (FCJ Oct. 18, 2022).

Students join labor demands for living wage at RISD

(UPDATE, April 18: Labor and RISD reached a tentative agreement, Wazlavek tweeted last night.)

The Rhode Island School of Design—famous alumni include Seth MacFarlane, BFA '95 (Family Guy, The Orville)—has lately been embroiled in a labor dispute.

I saw, and heard, protestors yesterday morning when I drove to the nearby Providence Amtrak station. They made plenty of noise, yet in an artsy, celebratory way. You really don't want to mess with creative types. With faculty support, students are demonstrating alongside custodians.

An attorney-alum of my torts and comparative law classes is working on the matter from the Teamsters side. Aaron Wazlavek (SSRN) has been on site this week.  (Video NSFW: adult language. That's just how labor rolls.)

Settle the contract @risd. One day longer, one day stronger.

We @Teamsters won’t leave until we get a deal executed for our members.#1u #Organize #OneBigUnion pic.twitter.com/2H3DFT7fuF

— @voteunion©️2023 | #1u (@voteunion) April 12, 2023

According to arts independent Hyperallergic, "[c]urrently, the average wage of a RISD custodian, groundskeeper, or mover is $16.74 per hour. The lowest wage is $15.30. Teamsters Local 251 has fought for a $20 minimum wage ...."

The living wage for one adult with no children in Providence County, Rhode Island, is $17.42/hr., according to the MIT calculator.  The minimum wage in Rhode Island is $13/hr.

In March, New York University law students made headlines demanding a choice between credit hours and an hourly wage for work on law review. 

The New York students have a point. I've long been critical of unpaid internships. Nowadays, U.S. law schools require free labor in many guises. Call it "field placement," "externship," "pro bono"—even new lawyers are expected to "volunteer" before they can get paying jobs. It's all subversion of the simple principle that one should be paid for one's work. Corporations and employers delight in pushing American work-life balance in the wrong direction. The legal education system and accrediting American Bar Association are complicit.

The set rate for student labor—when we pay in real money; I just hired a research assistant for the fall—at UMass Law in south-coast Massachusetts is $15/hr. The living wage for one adult with no children in Bristol County, Massachusetts, is $17.88, according to the MIT calculator.

Latest reports suggest that RISD and labor will find a middle ground between $15 and $20. I hope it's at least halfway.

South African court upholds common law abuse of process as defense in prototypical anti-enviro SLAPP

Petitioners demand EU anti-SLAPP legislation in 2022.
Ekō via Flickr CC BY 2.0

The Constitutional Court of South Africa upheld the use of common law abuse of process in defense of environmental activists against a defamation claim by a mining company.

I wrote about this case in its lower court iteration in 2021. The plaintiff mining company rather boldly sued the environmentalists to chill their activism with the burdens of litigation. Deputy Judge President of the Western Cape High Court Patricia Goliath employed a creative adaptation of common law abuse of process—conventionally a tort, not a defense—to work in the case like an anti-SLAPP law, which South Africa does not have as a matter of statute.

I have written at length on anti-SLAPP cases. I am not a fan of anti-SLAPP laws, but acknowledge that they can function well to protect the freedoms of expression and petition in cases that fit the historical pattern for which anti-SLAPP was conceived. Protecting environmentalists against developers is the very prototype, so I lauded DJP Goliath's decision.

In November 2022, the Constitutional Court upheld the abuse-of-process theory. The court expressly recognized the abuse-of-process defense as an anti-SLAPP measure and an evolution of common law. The court rejected the mining company's objection to the adaptations required to make abuse of process work. The common law test for the tort in South Africa requires that a claim have a near certainty of failure; the court refused to hold the defendant environmentalists to that burden. The common law test also did not allow abuse of process to be determined wholly upon ulterior motive. The court ruled that ulterior motive could support the abuse-of-process defense.

As I wrote in 2021, I prefer the common law approach to the blunt and overbroad device of statutory anti-SLAPP that prevails in the United States. The South African approach takes care to assess the power imbalance between the litigants to ensure conformity with the anti-SLAPP pattern. In the United States, anti-SLAPP is distorted to empower media conglomerates and public figures to extract high-dollar attorney fee awards from genuinely injured claimants who can't meet extraordinary requirements of proof upon mere pleading.

The case is Mineral Sands Resources (Pty) Ltd v Reddell, (CCT 66/21) [2022] ZACC 37; 2023 (2) SA 68 (CC) (14 November 2022). Justice Steven Arnold Majiedt authored the unanimous judgment.

Citizens defeat attack on state transparency law

A bill that would have gutted the state Freedom of Information Act (FOIA) was defeated in committee in the Arkansas House on March 29. A more modest bill amending the open meetings act passed.

My friend Professor Robert Steinbuch testified decisively against the comprehensive HB1726, which read like a wish list of transparency opponents, dismantling one provision after another of the state FOIA. I was there.

Bill sponsor Rep. David Ray presented the bill to the House State Agencies and Governmental Affairs Committee, though there can be little doubt that the bill was devised by lobbyists such as Arkansas's municipalities or counties. The bill attacked the strongest points of the FOIA that mark differences from state norms, such as Arkansas's short, three-day turnaround and lack of attorney-client privilege.

In fairness, there is room for negotiation on some of these points. An excellent one-time student of mine and Steinbuch's, Deputy Attorney General Ryan Owsley presented the bill alongside Ray. Having long served as opinions counsel, Owsley knows the FOIA well, and he fairly criticized the law for areas in which its well meaning text might be outpaced by practical realities. For example, record custodians say they're too often unduly stressed by the three-day deadline, especially when redactions are routinely required from today's typically voluminous electronic records rife with exempt personally identifying information.

But the bill proponents claimed too much. They whinged, for example, about record custodians compelled "to violate the law" and place themselves in legal jeopardy. In fact, to my knowledge, no Arkansas judge has ever demanded that custodians respond to requests other than reasonably, notwithstanding the three-day deadline. Like the 20-day deadline of the federal Freedom of Information Act, the three-day deadline is largely notional in practice. Its more salient admonition is that when records are immediately available, they should be provided immediately. A better bill might codify the de facto oversight process for voluminous productions.

Bill proponents moreover obfuscated. They articulated purported horror stories of FOIA abuse amounting to harassment of public officials. But their stories hardly bore out.

One oft repeated claim in the hearing was that a FOIA requester made a request of a school district that would have yielded 800,000 records and taken two years to process. But there was a lot of information missing from this claim.

For starters, no one ever said that the records were produced, only asked for. I could make a request tomorrow for all the records of a school district, and then someone could testify with outrage that a requester demanded millions of records. Neither side is well served by overbreadth. It's not unusual at all for an ordinary-citizen requester to over-ask, and then for a custodian to work with a requester to help narrow the request to what the requester really wants. The two years' labor claim was always made in the conditional tense, so it seems the referenced situation was somehow resolved without a crisis.

Second, no one ever said what medium or format the 800,000 records were in. I once FOIAd the voter rolls for several ZIP codes in Arkansas. If every one of those files was considered a "record," then I FOIAd some million records. But I received them in just a few minutes as a kind election official downloaded the data to a USB stick for me.

Third, no one ever said anything about the content of the 800,000 records. Maybe the request was justified. Journalists in the hearing testified to matters such as the discovery of juvenile abuse through public record requests. If that's what those records revealed, then I say, get to work.

Many police testified in favor of the bill. One police witness complained about requests from the ACLU investigating police conduct. I'm not sure I have a problem with those requests. Remarkably, one police witness complained because a journalist's investigation of a fatal shooting by police determined that the shooting was justified. Was the officer hoping for a different conclusion? Exoneration hardly suggests that the records were ill sought to begin with.

Insofar as the bill sought to tackle points of the FOIA that might benefit from fair-minded reform, the problem with HB1726 was procedural as well as substantive. Surely as a matter of political strategy, the bill was introduced late in the session, when legislative committees are overworked—the instant hearing went well into the night—and tend to be less scrutinizing of what they pass.

The bill was introduced on a Monday and immediately came up in committee on Wednesday. It was stunning and telling that so many citizens organized to turned out against the bill so fast. In the interim, the state FOIA advisory body, a legislatively constituted entity that exists for the very purpose of vetting FOIA legislation, obliged the timeline with an emergency meeting on Tuesday. But Rep. Ray was a no-show and complained at the hearing that he had had a conflict. He blamed the advisory group for his timeline.

Disappointingly, HB1726 came to committee with the support of Governor Sarah Huckabee Sanders. A young aid represented the Governor at the hearing, and I could not help but think that he was set up to take the heat. One witness aptly pointed out that transparency is a plank in the state Republican platform. This was not Gov. Sanders's only recent embarrassment.

A second bill, sponsored by Rep. Mary Bentley, passed the committee later in the night. HB1610 would set a one-third-of-members threshold to trigger the open meetings act. Like other jurisdictions, Arkansas has struggled with the threshold question. To the aggravation of municipality lobbyists, the state supreme court has held that the act is triggered by even a two-person meeting if transparency would be subverted.

The bill hardly got a full hearing in the committee. Because of the late hour after the HB1726 debacle, the committee limited witnesses on each side to 15 minutes in sum. But they testified in the order they signed up. So time ran out on the opposition side upon citizen witnesses who were not as effective as advocates such as Professor Steinbuch and attorney Joey McCutchen.

I dared think that HB1726 was a mere smokescreen to push through HB1610. But HB1726 was such a disaster that it's hard to believe so much thought went into a concerted strategy.

Professor Steinbuch is author of the treatise, The Arkansas Freedom of Information Act (LexisNexis 8th ed. 2022). I was a co-author of the preceding fourth, fifth, and sixth editions. The book originated with Professor John Watkins in 1988.

Below is the hearing on both bills on March 29. The hearing is remarkable for putting on exhibit the wide range of constituencies that support and oppose transparency in state and local government, and their reasons.

Arkansas bill would compel admin sharing at two public law schools, saving money for education

On March 29, I testified on a bill in the Arkansas legislature that would consolidate back-office functions of the state's two law schools, making more money available for the educational mission.

Senator Mark Johnson generously invited me to present with him his SB370 to the Arkansas Senate Education Committee. The bill furthers a theme I articulated in a 2011 white paper before I left Arkansas for New England.

In the 2011 paper, I posited that Arkansas might provide more and better opportunities to students at both Fayetteville and Little Rock law schools if the two public schools were not locked into "pseudo-competition," but, rather, shared administrative services as one law school on two campuses. I roughly estimated a savings of $800,000 to $1.2m, which could be used to enhance the program of legal education.

Rutgers University did exactly that in 2015, combining its New York-proximate Newark school into a two-campus institution with its capital-proximate Camden school, despite their locations at opposite ends of New Jersey. Penn State presently is planning to merge its law schools at capital-proximate Carlisle and research-oriented University Park.

Of the 25 states with less than median population in the United States, Arkansas is one of only three with two public law schools. The others are Kentucky and Kansas. Kentucky has five million people to Arkansas’s three million. Kansas has two public law schools only because of Washburn’s unusual history as one of the last remaining municipal universities in the nation. If one compares the states of the Eighth Circuit, only Arkansas and Missouri have two public law schools. Missouri has double Arkansas’s population and also has two private schools.

SB370 does not go as far as the merger I proposed in 2011, as effected at Rutgers and planned for Penn State, but the bill would take a step in that direction by merging back-office functions without affecting student-facing services. There's no good reason for both schools to be maintaining separate operations in advancement, for example. The advancement professional in Little Rock alone earns more than $109,000, plus benefits.

Senator Johnson asked me to address in particular for the committee any potential ramifications for ABA accreditation for the schools, were SB370 to become law. For the most part, SB370 will have no effect at all on accreditation, because the bill does not affect the program of legal education.

As written, SB370 proposes a "joint dean," which was a stumbling block. As long as Arkansas wishes to retain two separately and fully accredited law schools, each will have to have a chief administrative officer, whatever the person is called. The two deans presently earn about a quarter million dollars each per year, give or take, plus benefits. I told the committee, there will have to be two deans. But they need not earn so much in a semi-combined institution. Each of Rutgers's campuses retains a dean, but they split the administrative supplement to their faculty salaries.

Senator Johnson already was aware of the "joint dean" issue and had prepared an amendment for the committee. However, a senator objected to viewing the bill without the amendment engrossed, so Senator Johnson pulled the bill for re-engrossment.  With the legislative session waning, the bill might not have time to come back to committee for a vote. But the idea will remain sound, and I am hopeful that it will have its day. The students of the state's two public law schools all deserve the best and fullest range of opportunities that Arkansas higher education has to offer.

I am grateful to Senator Johnson for his kind and erudite engagement with my 2011 paper and the invitation to join him, and to my friend and colleague Professor Robert Steinbuch for helping to coordinate my visit to Arkansas.

Rap Snacks reinvents the potato chip for Americans

Mapco Rap Snacks rack.
RJ Peltz-Steele CC BY-NC-SA 4.0

Peckish in a Mapco convenience store in Memphis last weekend, I was confronted unexpectedly with a wall of provocative pleasures: rapper potato chips.

It turns out Rap Snacks has been around since 1994. It was the brainchild of Philadelphia native, Miami-based entrepreneur James Lindsay, CEO.  According to his bio, Lindsay cut his teeth in marketing in ethnic hair products. In 1994, he thought to partner with Universal Records, simultaneously capitalizing on and expanding the brands of rappers and hip-hop artists, selling chips (crisps) and quickly building a $5m company.

Recently I binged season 11 of Jared Keeso's brilliant, if not safe for work, Canadian sitcom, Letterkenny. In episode 1, "Chips," the gang debates the best potato chip. They rightly note that flavored chips were pioneered in North America by Canadians, who have long had a more diverse chip palate than Americans. Flavors such as dill, ketchup, and roast chicken have been around for decades. I remember being awed by the range of available delights when I first visited my cousins in Ontario in 1989.

The chìp de résistance of the Canadian market is the "all-dressed." Mainer Liz Provencher for Thrillist sang the chip's praises, describing its mélange: "a masterpiece of ketchup, barbecue, sour cream and onion, and salt and vinegar flavors all rolled into one chip." When the characters of Letterkenny debated the best chip, they agreed that the all-dressed would have to be excluded, or there would be no contest.

The Lil Baby "All In."
RJ Peltz-Steele CC BY-NC-SA 4.0

In recent years, the American market has at last evinced some appetite to experiment, and Rap Snacks has obliged. The colorful packaging of artist visages is complemented by a range of daring flavors. Hoping to seize on an American equivalent of the all-dressed, I selected a chip that had a lot going on. The Lil Baby "All In" chip boasts "salt & vinegar, BBQ, onion, garlic, and more."

Mmmm. The All In was Right On. Welcome to America, flavor. 

You can find Rap Snacks with the store locator, or order in bulk online. Visit the flavor booth to put your own face on a bag of chips.

Chinese aid in foreign development, Taiwan's dwindling number of allies warrant Western concern

Honduras severed ties with Taiwan and doubled down on ties with China just days before House Speaker Kevin McCarthy met in California with the president of Taiwan.

The severing of diplomatic relations between Honduras and Taiwan is an important sign for global security, well beyond the bilateral significance. The People's Republic of China (PRC) has been executing a methodical campaign to isolate Taiwan from the world, a potential preliminary step to an assertion of control that would test the U.S. pledge to defend the disputed territory.

Chinese development policy is a fascinating subject; I take it up each year in one hour with my Comparative Law class.  Evidence abounds to support disparate theories on what the PRC means to achieve with its foreign aid packages. From well meaning humanitarian goals to Machiavellian world domination: it's anybody's guess what's being said in the highest levels of Beijing briefings. I'll paste below the reading list my class used this year to get a handle on this wide-ranging sub-subject. The discussion always is the best of the course.

Around the world, I have seen the vast reach of renminbi. The infrastructure projects alone are simply stunning. Chinese flags boast of telecommunication investment in distant and dusty towns in West Africa and South America. Bridges soar in Croatia and Montenegro; dams in Thailand and Sudan. Glassy government buildings adorn capitals such as Windhoek and Harare. And then there are the ports, from Togo to Sri Lanka to Peru. That's just a sampling of what I've seen with my own eyes.

A Dutch friend working in the aid sector in the Middle East was puzzled when I first asked for his appraisal of Chinese objectives. It's obvious, he opined. They just don't say it.

He and I were in the remote Indian Ocean island nation of the Maldives in March, where I witnessed Chinese-funded projects: a shining national museum, a bridge connecting the capital to the airport island across open ocean, and a massive new airport under construction. 

The Sinamalé Bridge, or China-Maldives Friendship Bridge, links capital Malé to Hulhulé Island.
RJ Peltz-Steele CC BY-NC-SA 4.0

Velana International Airport at left; the new Maldives airport under construction at right.
RJ Peltz-Steele CC BY-NC-SA 4.0

The Maldives National Museum, Malé, opened in 2010.
RJ Peltz-Steele CC BY-NC-SA 4.0

The list of countries that have severed ties with Taiwan upon PRC quid pro quo has grown so long that it's difficult to track, and countries in Latin America and the Caribbean are well represented. I was in Paraguay last year not long after it asked Taiwan for $1bn to remain friends. Typically of countries in the mix, Paraguay is trying to play both sides for the best deal, which, in the end, probably means just using Taiwan as leverage to get the best deal from the PRC. Heritage reported in late February that Paraguay was one of only 14 remaining countries, then, still maintaining ties with Taiwan. 

Last week, Honduras renounced that club. NPR contextualized the move:

Honduras had asked Taiwan for billions of dollars of aid and compared its proposals with China's, Wu said. About two weeks ago, the Honduran government sought $2.45 billion from Taiwan to build a hospital and a dam, and to write off debts, he added....

Taiwanese President Tsai Ing-wen said her government would not "engage in a meaningless contest of dollar diplomacy with China." ....

For decades China has funneled billions of dollars into investment and infrastructure projects across Latin America. That investment has translated to rising power for China and a growing number of allies.

In Honduras, it has come in the form of construction of a hydroelectric dam project in central Honduras built by the Chinese company SINOHYDRO with about $300 million in Chinese government financing.

Honduras is the ninth diplomatic ally that Taipei has lost to Beijing since the pro-independence Tsai first took office in May 2016.

Taiwan still has ties with Belize, Paraguay and Guatemala in Latin America, and Vatican City. Most of its remaining partners are island nations in the Caribbean and South Pacific, along with Eswatini in southern Africa.

As Reuters put it in a headline yesterday, "US, Taiwan seen powerless to stem island's diplomatic losses in Latin America."

When Taiwan President Tsai Ing-wen met with McCarthy in California, she was on her way back from visiting Belize and Guatemala. Media reports tended to spin the meeting as a show of tough-on-China Republican policy. I rather assumed the view I heard from one commentator, that meeting in California was a way not to meet in Taiwan, thus, not to poke the dragon as Nancy Pelosi did.

Schooled on 1970s détente, I'm not much of an American imperialist, and these days, I'm not much of an American exceptionalist. But I do worry that we will one day wake up to find ourselves a quirky outpost of remnant democracy in a world of purported harmony under authoritarian paternity.

Here's your Comparative Law homework for two hours on law and development, including a discussion of the PRC.

Historical and theoretical:

• John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 Am. J. Comp. L. 457 (1977).

• Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45 Vand. J. Transnat'l L. 477 (2012).

Policy:

• Nic Cheeseman, Why There's a Case for Giving Foreign Aid to Authoritarian Regimes, The Conversation (Jan. 14, 2019).

Cheeseman here summarizes his remarks at a University of Birmingham debate in 2019. The whole debate is on video on YouTube, so you can watch it if you like (cued to Cheeseman, who spoke first).

PRC:

• Stephen Paduano, China's Investments in Rwanda Raise Familiar Questions About Debt, The Atlantic (Aug. 3, 2019)Deborah Brautigam & Meg Rithmire, The Chinese "Debt Trap" Is a Myth, The Atlantic (Feb. 6, 2021).

• Keith Bradsher, In Global Slowdown, China Holds Sway Over Countries' Fates, N.Y. Times, (Oct. 7, 2022).James McBride, Noah Berman, & Andrew Chatzky, China's Massive Belt and Road Initiative, Council on Foreign Relations (last updated Feb. 2, 2023).

If you'd like to dig into the numbers of Chinese development aid, have a look at the Global China Initiative at Boston University, especially its recent (Jan. 2023) policy brief.

The older BRI exists alongside more recent, if less extravagant, Chinese policies in the Global Security Initiative (GSI) and the Global Development Initiative (GDI).  The GSI and GDI raise analogous questions. If you would like comparable overviews, I recommend Michael Schuman for The Atlantic (July 13, 2022) on the GSI; Joseph Lemoine and Yomna Gaafar for New Atlanticist (Aug. 18, 2022) on the GDI (pro-Western perspective); and Professor Amitrajeet A. Batabyal for The Conversation (Aug. 4, 2022) on the GDI.

If you would like to learn more about the Chinese debt cancellations in Africa mentioned in the N.Y. Times article, there's a good and fairly even-handed article from Voice of America News (Aug. 25, 2022). One thing I have not given you here is any of the abundant statements from Chinese authorities and state-sponsored media defending Chinese policy; you can find them readily online yourself if you wish to get a flavor.

Conclusion:

Engage with this compelling perspective piece authored by a Harvard law student in 2018. Attorney Sabrina Singh is now an associate in the ESG group at Latham & Watkins in New York City.

• Sabrina Singh, Development Versus Anti-Development: Your Choice Matters, Harv. L. & Int'l Dev. Soc'y (May. 13, 2018).
  

A thanks to my Dutch friend (whom I'm not naming for security) for joining the class from the Middle East via Teams to discuss the delivery of humanitarian aid in conflict zones.