Chalamet plays Dylan with Apple Music soundtrack

Twenty-eight-year-old heartthrob Timothée Chalamet, known best to me on the big screen as Roald Dahl's Willy Wonka and Dune's Paul Atreides, will play Bob Dylan in A Complete Unknown, a biopic due out at Christmas (IMDb, trailer).

A movie about the iconic singer-songwriter, now 83 years old, naturally will require a killer soundtrack. Much speculation has surrounded the hush-hush project. Morgan Steele, my daughter, based in Los Angeles, recently produced some promotional content with The Chalamet. The first fruit of that labor, "Becoming Bob Dylan," an interview with Zane Lowe, is out this week from Apple Music.

Photo: Timothée Chalamet by Somewhere in Toronto via Flickr CC BY-SA 2.0.

Remembering Judith Faust, social worker, teacher

Judith Faust

Judith Faust, instructor emerita at the School of Social Work at the University of Arkansas at Little Rock (UALR), and an extraordinary human being, died Sunday. 

Judith was a dear friend of mine and my wife's when we lived in Arkansas in the 20-aughts. I am sorry that, since moving to the northeast, we did a poor job staying in touch beyond the occasional greeting card. Judith died comfortably in hospice from cancer, a friend caring for her, Amy Freer, reported on Facebook.

Judith continued teaching in the Arkansas Public Administration Consortium (APAC) after retirement. Her personality juxtaposed an earnest commitment to good works and a light-hearted spirit. Here is her APAC biographical statement, which I suspect she wrote.

Judith Faust sometimes describes herself as "an organization junkie," having long been fascinated by how organizations work, and especially by what community-based nonprofits can accomplish. She's retired from the faculty at the University of Arkansas Little Rock, having for two decades taught graduate students in social work about nonprofit management and community practice. Her own work has included directing a program for runaway and homeless youth, a management-support organization for Arkansas nonprofits, and the state's Division of Children and Family Services. She volunteers presently with KUAR, the Quapaw Quarter United Methodist Church, and pretty much whomever asks her.

In case you wonder about such things, her undergraduate degree—a double major in journalism and philosophy—was earned from the University of Kansas, and her graduate degree—an MSW with a concentration in community organization and planning—from Tulane University.

We were privileged for many years to share a book group with Judith. She was thoughtful and insightful, and always we looked forward to delighting in her erudite company. Her home was packed with books, filling every available space, with shelves built into every corner and nook. You could pull down any title, and she could recall her impression of it, as well as the time of life in which she had read it and how it shaped her worldview.

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A post shared by Judith Faust (@judithfaust)

With his permission, I share from Facebook (Nov. 10) the well stated sentiments of our friend Andrew Eshleman, now a philosophy professor at the University of Portland. Andrew succinctly captured my own experience, memory, and impression of Judith better than I can.

Just learned that a former colleague, Judith Faust, has died. We became friends while working together on the Faculty Senate at UALR, and she gets a good bit of the credit for showing me how that sort of work could be a rewarding and meaningful part of my career. But, oh!—then to see (from afar after moving away) her ongoing grit, honesty, thirst for understanding, and embrace of what's rich and beautiful in every nook and cranny of life during a long battle with cancer.

Here's Judith, from a few years back, to members of an email group following her difficult journey: "I think I'm finally coming out of the emotional woods. And those are the woods that count, aren't they? Life happens, in its glory and cruelty and ordinariness and all the uncounted shades between, and how we are, how we really are, is about how we experience it."

Then, with her signature honesty, she would acknowledge the ongoing struggle to experience things as she hoped as challenges multiplied. What a privilege to walk a little bit of life's path with such a soul.

Amy on Facebook wrote: "For those asking, while she did not outline wishes for a funeral service, donations on her behalf to one the following charities (hand-picked by Judith herself) would be most welcome:"

• Progressive Arkansas Women (PAC)
• ACLU of Arkansas
• Arkansas Museum of Fine Arts
• Little Rock Public Radio (KUAR/KLRE)
  
• Central Arkansas Library System Foundation
  

Judith touched many, many lives and left them better than she found them.

Law student vets collect food for hurricane victims

VLA members
UMass Law photo

Massachusetts State Rep. Chris Markey (D-Bristol) presented a citation to the Veterans Law Association (VLA) at UMass Law yesterday in recognition of the group's collection of about 300 pounds of nonperishable food for residents of Florida and North Carolina impacted by recent hurricanes.

Timothy Trocchio, 3L and Army veteran, accepted the citation for the group, which also recognized the work of the Student Bar Association. It's my privilege to serve as faculty adviser to the VLA.

Rep. Markey and Trocchio
UMass Law photo

VLA student leaders have brimmed with initiatives this academic year to support veterans in the law school and in our state and local communities, besides coordinating service work such as the food drive. The organization board comprises Trocchio, president; Sean Pillai, vice president; Cameron Sweeney, treasurer; Bryce Mayo, secretary; and Morgan Richter, social media manager. Pillai and Mayo are vital contributors in my Comparative Law class this semester; they and Sweeney are alumni of my Torts I & II.

Law students speak to barriers to legal education

Quinn, Spangler, D'Arcangelo, West, and Wood
Presumed ©; used with permission.

A gifted group of law students shared their personal experiences in access to legal education at the National Lawyers Guild "2024 #Law4ThePeople Convention" in Birmingham, Alabama, Friday.

UMass Law NLG chapter members formulated and proposed the program, "Changing The World, One Legal Education At A Time," which was accepted in a competitive selection process. Here is the abstract:

The panel will consist of law students with lived experience addressing the barriers, opportunities, and realities of accessing a legal education as members of underrepresented populations. Framed by issues of persistent inaccessibility, the panel will share the unique challenges they encountered while applying to and attending law school. Furthermore, each panel member will deconstruct how the barriers they’ve encountered influenced their career trajectories following graduation. In addition to their stories, Dean Quinn will share administrator perspectives on outcomes of programs and support for underrepresented populations unique to their school. Finally, the panel will discuss where they see opportunity for improvement.

The panel comprised 3Ls Daniela D'Arcangelo and Liz West, and 2L Rebecca Wood, chapter president. Wood, an alumna of my Torts I & II classes, appeared on The Savory Tort in the summer in recognition of her having won a prestigious Rappaport Fellowship. The panelists were accompanied by 2L Wyatt Spangler (featured), an NLG chapter member who contributed vitally to the program, and Assistant Dean of Public Interest John Quinn, who participated also as a panelist.

'Repay evil with blessing,' Apostle Peter writes

North Scituate Baptist Church, R.I.
Swampyank at English Wikipedia
via Wikimedia Commons CC BY-SA 3.0

With Election Day tomorrow, this might be an opportune moment for a message of peace and non-retribution.

Last week I had the privilege of sharing the word of 1 Peter 3:8-9 at the nearby Rhode Island church of a dear friend and pastor while he was away from the pulpit. (Oct. 27, below.)

Finally, all of you, be like-minded, be sympathetic, love one another, be compassionate and humble. Do not repay evil with evil or insult with insult. On the contrary, repay evil with blessing, because to this you were called so that you may inherit a blessing.

The pastor had preached the preceding week on the flaws of human criminal justice. So I started by shifting the focus to civil justice and the fundamental question, as framed by my late friend and mentor Professor Marshall S. Shapo, A injures B and could have avoided it; what should society do? 

Professor Shapo was well schooled in the Old Testament and knew the teaching of Exodus, an eye for an eye. The New Testament put another spin on the problem and confronts the contemporary Christian litigator with a vexing challenge. 1 Peter 3:8, et seq., is only a piece of the solution, and I don't purport to have it all worked out. Nevertheless, and at risk of some hypocrisy, I found a starting point in the verses.

I thank the pastoral and worship teams and congregation of North Scituate Baptist Church, Rhode Island, for their kindness, hospitality, and indulgence of my ramblings, which I hope were motivated by the Spirit. (Full service.)

A reminder that The Savory Tort is a personal blog. What I write here is not representative of my employer nor communicated in my public capacity, even if some content also serves the professional interests of my teaching, research, and public service.

New book spotlights freedom of press in film

My friend and colleague Helen J. Knowles-Gardner, formerly a political science professor and now research director at the Institute for Free Speech, along with co-author Professor Emeritus Bruce E. Altschuler and Professor Brandon T. Metroka, has published a gratifyingly compelling new book, Filming the First: Cinematic Portrayals of Freedom of the Press (Lexington Books 2025).

The engaging cover art was created by illustrator Doug Does Drawings (X, Etsy, Instagram, YouTube).

Here is the publisher's description of the book:

The First Amendment to the U.S. Constitution prohibits Congress from abridging freedom of the press. But, as the printed press has been transformed into mass media with Americans now more likely to get their political information from television or social media than from print, confidence in this important, mediating institution has fallen dramatically. Movies, in their role as cultural artifacts, have long reflected and influenced those public attitudes, inventing such iconic phrases as “follow the money” from All the President’s Men and “I’m mad as hell and I’m not going to take this anymore” from Network. Filming the First: Cinematic Portrayals of Freedom of the Press analyzes eighteen films that span from Citizen Kane to Spotlight showing changes in how the press have been portrayed over time, which voices receive the most attention and why, the relationship between the press’s “Fourth Estate” role and the imperatives of capitalism, and how, despite the First Amendment’s seemingly absolute language, the government has sometimes been able to limit what the public can read or view.

I was privileged to review an advance copy of the book and am quoted aptly on the back cover: 

Filming the First is a deeply thought-provoking exploration of America's cinematic engagement with "the press." Through the revealing social implications of the big screen, Filming the First interrogates press freedom from yellow-journalism sensationalism to Watergate and Vietnam heroics, to the existential threat of misinformation. Organizing eighteen films into ten thematic chapters, Filming the First embraces both classics and the avant-garde and treats readers to perspectives on mass media from the reverent paean to the ruthless critique. Knowles-Gardner, Altschuler, and Metroka locate their diverse film selections each in its social, cultural, and legal context. Upon each exposition, the writers relate key takeaways to the perils and uncertainties that surround the business of media in our polarized present day. Filming the First is a thrill ride for film buffs, free speech aficionados, and anyone willing to engage with the struggle to define media's place in modern democracy.

If I ever again have the freedom to teach an indulgent topical seminar, this book is at the top of my list.

Here is the table of contents.

Chapter 1. Censorship in a Time of War: Good Morning, Vietnam
Helen J. Knowles-Gardner

Chapter 2. A Media Mogul Battles Against His Fictional Doppelganger: Citizen Kane and RKO 281
Bruce E. Altschuler

Chapter 3. Heroic Newspaper Reporters, Editors, and Publishers Battle the President – All the President’s Men and The Post
Bruce E. Altschuler

Chapter 4. Technology Transforms the Press into the Media: Network and The Social Network
Bruce E. Altschuler

Chapter 5. “How Can We Possibly Approve and Check the Story…?”: Good Night, and Good Luck and The China Syndrome
Helen J. Knowles-Gardner

Chapter 6. Testing the Limits of Freedom: Denial and Deliberate Intent
Helen J. Knowles-Gardner

Chapter 7. Responsibility Matters: Shattered Glass
Helen J. Knowles-Gardner

Chapter 8. Creating Protagonists, Competing Interests, and Uncertain Legal Standards: The People vs. Larry Flynt and Citizenfour
Brandon T. Metroka

Chapter 9. A Tale of One Press Clause and Two Journalisms: Spotlight and Out in the Night
Brandon T. Metroka

Chapter 10. Mainstream Press Negligence and its Effects: The Normal Heart and Tongues Untied
Brandon T. Metroka

 

Hospital's radiology contractor must answer negligence claim over patient death, per third-party doctrine

Saint Vincent Hospital, Worcester, Mass.
Terageorge~commonswiki via Wikimedia Commons CC BY-SA 4.0

A hospital's radiology contractor may be on the hook for failure to provide emergency medical treatment to a patient who died, the Massachusetts Appeals Court ruled last week.

The decision offers a solid analysis of third-party beneficiary doctrine in tort law. Under the doctrine, a duty in common law tort can arise from a contract that benefits a third party. So if B and C contract for the protection of A, an injured A may sue C for for its failure under the contract, even though C had no contract with A and would not otherwise have owed any common law duty to A.

In the instant case, Saint Vincent Hospital (SVH) in Worcester, Massachusetts, had contracted with Saint Vincent Radiological Associates, Inc., (SVRA) for radiology services for SVH patients. The plaintiff-decedent was an SVH patient suffering from an acute gallbladder infection requiring an emergency procedure. SVH did not have staff to do the procedure and transferred the patient to another hospital. The patient died before the procedure could be completed. 

The plaintiff-representative discovered later that an SRVA physician on call for SVH was able to do the procedure. The representative sued SVH and SVRA. The representative settled with SVH, but the representative's negligence claim against SVRA was dismissed for want of duty.

The trial court erred, the Appeals Court decided. Ordinarily, an SVRA doctor might have owed no duty to an SVH patient, any more than any doctor who was a stranger to the patient. However, SVRA had contracted with SVH for the benefit of third parties, namely, patients, such as the decedent. The plaintiff therefore could pursue a negligence claim against SVRA, the Appeals Court agreed, remanding and reinstating the claim.

There remains a question of fact in the case, which might have confused the issue in the trial court, over whether the SVH-SVRA contract provided for SVRA doctors to do emergency procedures, if needed, more than mere radiology consultations. If the scope of the contract was so limited, then there is no basis in the contract for the duty to perform the procedure that could have saved the patient's life. The parties had settled contract claims in the case below, so the courts never had occasion to opine on the scope of the contract.

Another question that will have to be resolved on remand, if the case is tried, is whether the defendant was negligent, that is, breached the standard of care. Even breach of contractual obligation, if that were the case, is not negligence per se under the third-party beneficiary doctrine.

In working out its conclusion, the Appeals Court noted an important additional feature of the doctrine, which is that a contract can only support a duty familiar to common law, assuming there were a social-contractual link between A and C. If a contract imposes some exotic obligation, then the only remedy for breach arises between the contracting parties, B and C, in contract law. Here, though, this requirement is not an impediment. C is a doctor, and A is a patient. The duty relationship is easily recognizable once the contract bridges the social gap.

The case is Brown v. Saint Vincent Radiological Associates, Inc., No. 23-P-771 (Oct. 24, 2024). Justice Gregory I. Massing wrote the opinion of the unanimous panel, which also comprised Justices Shin and D'Angelo.

Hospitals may track patients online and sell their data without violating state wiretap law, high court rules

Mike MacKenzie (via Flickr) CC BY 2.0

State wiretap law does not prevent hospitals from tracking patients on the web and selling their data, the Massachusetts Supreme Judicial Court ruled last week.

The plaintiff is a patient at two hospitals in the Beth Israel Lahey Health network. As the court explained the facts, the plaintiff "reviewed information available to the public on the hospitals' websites regarding doctors (including their credentials and backgrounds) and medical symptoms, conditions, and procedures." Without her consent, the hospitals shared the plaintiff's browsing data with third parties to generate revenue from targeted advertising.

The plaintiff sued under state wiretap law and got some traction in the lower courts, where the theory has bubbled up in other cases, too. The high court ended the trend, though, ruling that the state wiretap law, which threatens criminal penalties such as imprisonment, while reaching interpersonal communications such as telephone calls and email and text exchanges, was not intended to reach persons' interactions with websites.

The 47-page majority opinion by Justice Scott L. Kafker, drew a vigorous and almost as lengthy dissent from Justice Dalila Argaez Wendlandt, who accused the hospitals of lying to patients in their pledges of confidentiality and argued that the alleged misconduct falls squarely within legislative intent in prohibiting the interception of electronic communication.

I won't belabor the back and forth, as ample commentary already has been published about the case (e.g., JD Supra, Commonwealth Beacon, Bloomberg, National Law Review, Law360 (subscription), Massachusetts Lawyers Weekly (subscription)), and there is plenty more to come. Rather, I will comment only that the decision reflects the sorry state of privacy law in the United States.

The majority and dissent both make defensible arguments. I come down with the dissent on the technical merits of what the wiretap law was designed to prevent, i.e. "the spirit of the law," regardless of whether the legislature could have foreseen web surveillance. At the same time, the majority is right that the legislature likely would not have wanted to imprison every actor engaging in the kind of web surveillance that has become pervasive in our online society.

The missing link between the two positions is the meaningful data protection law that the United States still doesn't have, and which Americans want and expect, while almost three decades have passed since the European Union Data Protection Directive. The later General Data Protection Regulation (GDPR) has been in force for six years.

Wiretap law was once the stuff of political intrigue, à la Watergate. The Massachusetts statute characteristically dates to the 1960s. Just as the advent of the internet made media law again hotly relevant to society, so wiretap law found new life in the electronic era. Courts had little difficulty transposing the law of wired telephone surveillance to wireless cell phones and electronic communication media such as email and texts. Even the U.S. Supreme Court got in on the action.

That's why I think Wendlandt has the better argument on the technical merits, by the way. The majority's distinction of interaction with a person or a website, when there are persons receiving surveillance data from the website, seems meaninglessly formalistic.

With electronic communication burgeoning in the internet era and electronic interception easier to accomplish without the need for specialized hardware, wiretap laws have been repurposed to do more work than they were designed for, becoming a key tool in the personal privacy arsenal.

The problem in tort law, to oversimplify modestly, always has been what Professor Daniel Solove termed "the secrecy paradigm." The common law of privacy torts, which also emerged largely in the 1960s, was not designed to handle the nuances of an online world. Rather, tort law, like the Fourth Amendment right against search and seizure, focused on secrets kept. A person might resort to the law to protect an intimate secret shared with a spouse. But the person who discloses financial information to a bank has forfeit legal privacy. 

Intimate space is not the theory of privacy that animates data protection in Europe and most of the rest of the world. In the theory abroad, the human right of privacy flows forward with personal data as they are handed off from person to person and corporation to corporation. In the United States, the Health Insurance Portability and Accountability Act (HIPAA) provides a modicum of privacy protection in this vein, but the circumstances in which it pertains are extremely narrow—web activity is not protected health information, and a web host is not a healthcare provider—and it authorizes no private right of action for violation.

In the absence of a legal model of downstream privacy preservation in the United States—notwithstanding a perplexing emerging plethora of competing state laws, if usually limited to commercial contexts; Massachusetts has been working on joining the pack, but has not yet—wiretap law has been unexpectedly instrumental to protect personal privacy in a narrow class of cases, because wiretap law focuses on the misconduct of clandestine surveillance rather than on the purportedly private nature of the intercepted content.

To be fair to the Massachusetts majority, though, such use of anachronistic wiretap law takes us down a road of ever more speculative application as the electronic avatar increasingly becomes an embodiment of personal identity. Electronic tools such as Google Analytics watch our every word. And we don't necessarily want to stop that wholesale. The other day, I watched a dated TV movie that Amazon thought I would like, and it was right. Time travel, Ireland, and Jane Seymour? Drop everything.

Notwithstanding which side in the instant case has the better argument in statutory interpretation, the legal response to the problem presented, that is, surveillance of web usage for the relatively innocuous if mercantile purpose of advertising, would arise better from business regulation than from common law or statutory torts.

Alas, if I had the magic potion that would make our broken Congress favor consumer protection over corporate profits, I would be running for President.

The case is Vita v. New England Baptist Hospital, No. SJC-13542 (Mass. Oct. 24, 2024).

Transparency never goes out of style

This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).

If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.

I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.

A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)

The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.

Niagara conference on workplace mobbing examines failure of academic freedom to prevent abuse

NCWM participants at Niagara University in July
© used with permission

With colleagues from around the world, I participated, as chair of the scientific committee, in the inaugural Niagara Conference on Workplace Mobbing (NCWM) on July 22-24, 2024, at Niagara University in New York (Savory Tort, Feb. 27, 2024).

Videos from the conference are now posted on a new NCWM YouTube channel and NCWM 2024 playlist.

Here is my introduction to the program, moderating the opening session.

For reasons investigated in the literature, academic workplaces are especially prone to mobbing. Here is my own presentation on academic freedom relative to workplace mobbing.

Here is another contribution to the academic freedom panel from my friend and colleague, Prof. Robert Ashford, Syracuse Law (pictured).

And here is the panel Q&A with Prof. Frances Widdowson (Woke Academy), Prof. Ashford, and me.

I will feature more programs from the conference in subsequent posts.

Enríquez disputes impact of marijuana offenses on federal sentencing since legalization in Missouri

The extraordinary scientist-lawyer Paul Enríquez argued an intriguing problem on the effect of legalization on federal sentencing in the Eighth Circuit Friday.

I wrote in 2021 about Rewriting Nature (Cambridge U. Press 2021), the remarkable book by Enríquez, J.D., LL.M., Ph.D. (LinkedIn, SSRN), on the law and science of genome editing. On Friday, Enríquez showed that he has the chops in the courtroom, too. Court Listener has the oral argument.

Enríquez's brief states the straightforward problem:

Mr. Brandon Phillips pleaded guilty to a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 10 years' imprisonment and three years of supervised release based on his criminal history. An amendment to the Missouri Constitution, which was in effect at the time of sentencing, legalized the use of limited amounts of marijuana and mandated the retroactive expungement of most prior marijuana-related convictions in Missouri. The district court failed to consider the effects of the Missouri Constitution on Mr. Phillips's case.

Missourian approved legalization 53%-47%.
Wikipedia CC BY-SA 4.0

As Enríquez told the court, Phillips would have fared much better in sentencing on the firearm violation, perhaps a third as many years, in prison, had he been credited with expungement pursuant to the Missouri constitution as amended in 2022. Ripe for someone to grab for moot court, the case also presents a procedural dispute over preservation of objection.

To my mind, Enríquez has the better argument on the merits and made the better argument in the courtroom, forensically. (I don't say that because he's a friend, colleague, and long-ago student, but I do mention that he's a former student in the hope that some of his shine will rub off.) To my mind, this seems the sort of case where the just outcome is obvious, even if legal formalism points the other way. Doing the right thing upon such a dichotomy is why we pay judges the big bucks and why we won't, I hope, commit justice to AI anytime soon.

What the court will do, though, remains to be seen. Getting hung up on formalism is a signature move for the federal bench. To my estimation, the judges' questions point to a split with the deciding third vote as yet inscrutable.

The case is United States v. Phillips, No. 23-2678 (8th Cir. oral argument Sept. 27, 2024) (Justia). Enríquez practices with Convington.

Remembering peaceful times in Tyre

I'm saddened by the expansion of the war in the Middle East into Lebanon upon yesterday's attacks by Israel on Hezbollah. To be clear, I'm not (here and now) meaning to make a political statement nor favor a side. Rather, I am remembering time I spent in the south of Lebanon and praying for the safety of civilians I met there. In contrast with the latest images from Tyre (Reuters), I took this photo of kids playing at the Tyre Coast Nature Reserve in May of 2018. I wonder where these boys are now, as thousands flee the south of Lebanon for Beirut and points north. Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.

IP, business stories of Tupperware bankruptcy minimize female marketing pioneer, dangers of plastics

Brownie Wise on Business Week in 1954
via America Comes Alive; © fair use

The Tupperware bankruptcy has been much in the news, though the coverage has underplayed "the rest of the story" in regard to women in business and product liability.

Headlines about the bankruptcy of Tupperware suggest various takeaways for business and law. Most stories highlight the inevitable expiry of novelty in business, with the corollary imperative to innovate (Atlantic, Sept. 20). Legal angles complement coverage with intellectual property lessons on the limited life of patents (Slate) and the problem of genericization in trademark (N.Y. Times). The history and nostalgia of Tupperware is a consistent theme (Atlantic, Apr. 12).

Less often told is the story of women in business. The CBS Evening News Saturday night credited Tupperware founder Earl Tupper with having come up with the Tupperware party as a sales strategy. That's not accurate, except in a "buck stops here" sense. The role of the remarkable Brownie Wise is less often told (mentioned: Atlantic, N.Y. Times). Rachel's Vintage & Retro has the more nuanced inside story. The National Women's History Museum and Smithsonian have more. Wise, from Buford, Georgia, graced the cover of Business Week in 1954 (pictured, via America Comes Alive). PBS recounted:

While Earl Tupper hated the limelight, Brownie Wise loved it. With Tupper's blessing, the company's public relations staff promoted Wise extensively. Female executives were rare, and the strategy worked. As the company grew, Wise was on talk shows, quoted by newspapers, and pictured on the cover of numerous magazines (she was the first woman to make the cover of Business Week). But when the press suggested Wise was responsible for Tupperware's success, and that she could be equally successful selling any product, Earl Tupper grew jealous. Over time, Wise became increasingly high-handed, and she was less patient with Tupper's micro-management and unpredictable temper. In 1958, Earl Tupper unceremoniously and abruptly fired her, booting her from the multi-million dollar company she had helped build; she held no company stock and was given just one year's salary.

Journalist Bob Kealing published a book about Wise if you want to go all in. Life of the Party (2016) followed up Kealing's Tupperware, Unsealed (2008). The Takeaway at WNYC interviewed Kealing in 2016.

With regard to women in business, by the way, CBS Sunday Morning just featured GM CEO Mary Barra, who appears to be going strong in the role ten years on. I remember when Jon Stewart on The Daily Show made fun of GM's ham-fisted introduction of a first female CEO ("a car gal, an auto dame, a jalopy broad"). It seemed that Barra was practically set up to fail amid GM's embarrassing ignition-switch recall.

Phillip Pessar via Flickr CC BY 2.0

Further in the vein of product liability, another angle on Tupperware that gets little play lies at the intersection of tort law and environmental protection. Stories of Tupperware tend to hail Tupper's inventiveness in converting DuPont's wartime development of polyethylene to post-war market ubiquity. But in the last decade, revelations of risky chemical seepage from microwaved containers did untold damage to a business built on plastic food storage.

BPA is just one chemical contaminant from plastics. Its use in manufactured products has spawned EU regulation and American litigation over baby bottles and activewear, as well as consumer protection litigation over "BPA-free" green-washing. Tupperware stopped using BPA in 2010 and developed a purportedly microwave-safe line of products under the brand name "Tupperwave" (not to be confused with Australian musician Dean Terry). But the safety of any plastic in the microwave remains uncertain. And microwave ovens notwithstanding, there's plenty of justified public concern over microplastic waste in the environment, animals, and people. 

So maybe Tupperware was always destined for only finite fame. Or maybe it will reinvent itself like Teflon, another DuPont invention that seems likely to survive an accountability assault.

Possibility that 'Titan' victims died instantly works curious disadvantage in tort claims over disaster

Still image of Titan wreckage from USCG video (below).

Hearings over the Titan submersible disaster point to the problem of compensation for instant death in tort law.

As The New York Times reported yesterday (subscription), a U.S. Coast Guard (USCG) inquiry into the underwater implosion of the Titan submersible (60 Minutes Austl.) has raised doubts over whether the five persons who died on the voyage knew they were in trouble. The family of one crew member filed a $50 million lawsuit against the sub manufacturer in August (N.Y. Times).

Titan was capable of dropping all of its weights to surface rapidly in an emergency. It was known before the present inquiry that Titan had dropped weights before the implosion, and experts read that as a sign that the crew knew they were in trouble. The inquiry so far has revealed, though, that Titan might have dropped only some weights as part of its routine surfacing procedure, and that communications with the surface suggested no cognizance of the impending disaster.

The rapid compression resulting from compromise of the Titan's hull at a depth of 3,346 meters (10,978 feet) would have raised the temperature in the sub so quickly as to incinerate the interior in a split second. So if the crew did know there was trouble, they did not know for long.

 Remotely-operated-vehicle video of Titan tail cone on seafloor (USCG).

Besides the natural desire of victims' families to understand what their loved ones experienced in their last moments of consciousness, the question of conscious awareness of impending death points to a curious problem of damages doctrine in tort law.

In its long history, Anglo-American common law has struggled with the problem of compensation in event of accidental death. The conventional approach to calculate damages in tort law asks what it would take to restore a plaintiff to status quo ante, as if the accident had not occurred. When a loss is non-economic, such as physical injury or emotional distress, the loss is nonetheless quantified as financial compensation.

The problem in a death case, besides the obvious difficulty of quantifying life itself, is that there is no plaintiff to compensate. The person who experiences loss of life can in no sense be made to feel restored; she or he can derive no satisfaction from a financial award, nor even spend it. So what is the social utility in transferring wealth from a responsible defendant to a non-corporeal estate?

Tort law does mean to accomplish more than mere compensation. Tort awards set norms for socially acceptable conduct, deter others from misconduct, and keep the peace by cooling the vengeful desires of a victim's kin. So the law of accidental death came around in the 19th and 20th centuries to compensate surviving family for at least some of the losses that they suffer upon the death of a loved one; and also to compensate a decedent's estate for what the decedent suffered while alive.

That latter measure incorporates a serious limitation: the decedent's suffering necessarily ended at the time of death. Compensation of an estate thus poses a peculiar problem in a narrow class of cases. Should the estate receive anything at all when a person dies instantly? If so, what is the measure of suffering?

In modern times, airline disasters especially added another twist to the problem. One could imagine that airplane passengers sometimes are conscious of an impending crash. They therefore suffer emotionally. But they suffer before the crash. American law on negligence and strict liability compensates emotional distress only when it is a consequence of physical injury. The doomed airline passengers experienced physical injury and death simultaneously; there was no consequential emotional distress. So there is, again, no basis on which a tort award can be measured out.

Is there really, though, a legally significant difference between, on the one hand, suffering for moments after impact and before death, and, on the other hand, suffering for moments before impact and before death? Personally, I'd like to avoid both. And the toll on kin, the revelation of a loved one's suffering for moments in anticipation of death, seems about the same whether before or after impact.

Accordingly, many courts faced with such cases have been willing to suspend the usual rule of causation and award an estate damages for "pre-impact fear," if only in this narrow class of cases when it could be proved, at least by circumstantial evidence, that the decedent suffered emotional trauma upon an awareness of impending death.

The solution creates collateral problems, namely: in evidence, as to how one proves the pre-impact state of mind of a person who perished; and in torts, in the valuation of damages, for fear that jurors might let the fact of physical fatality improperly amplify their assessment of only momentary and purely emotional suffering. These problems are surmountable, if one decides they should be, through adversarial process, careful jury instructions, and court supervision.

American jurisdictions remain reluctant, though, to compensate for life itself. So damages awarded to wrongful death complainants, the kin of decedents, still are measured according to their losses, such as financial support and loss of companionship. However remunerative, that approach can leave victims' families feeling like the lives of their loved ones were undervalued by the legal system, and the loss of life was insufficiently impressed upon the defendant. After all, if there were no kin, there would be no liability.

An award for pre-impact fear usually is small, because of the short time frame in which the harm occurs. But the award can be important symbolically to victims' families, because, in the absence of compensation for life itself, the modest award for pre-impact fear at least recognizes suffering in the decedent's confrontation with mortality.

In the Titan case, then, a revelation of instant death might bear a bittersweet edge for families. Certainly, they would like to know that their loved ones did not suffer at all and had no cognizance of their fate aboard the sub. At the same time, a revelation of instant death will mean that the victims bore no compensable suffering, even pre-impact. In tandem with a failure to compensate for life itself, victims' families might well conclude that the legal system failed to recognize the fullness of their loss.

There are, by the way, better ways to handle wrongful death. The gold standard for my money was articulated by my friend and former colleague Andrew McClurg in his Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U. L. Rev. 1 (2005).

Spoliation risk shows ill wisdom of state awarding contract to defendant in lawsuit over same project

The eastbound span of the Washington Bridge remains functional.
Jef Nickerson via Flickr CC BY-SA 2.0

The state of Rhode Island has found itself in an awkward spot trying to prevent the spoliation of evidence in civil litigation.

In my recent screed against, inter alia, corruption in contracting, I mentioned that Rhode Island had awarded the nearly $50 million contract for a major bridge demolition to a company that also is among the 13 defendants Rhode Island has sued for failing to diagnose the defective bridge in the first place.

I suggested, and maintain, that the state's simultaneously friendly and adversarial relationship with Aetna Bridge Co. is symptomatic of problematically cozy ties between government and contractors. These relationships cost taxpayers in Rhode Island and elsewhere tens of millions of dollars in overpriced projects, I believe, effecting a form of what I call "lawful corruption."

In a schadenfreude-inducing twist in the case, demolition of the I-195 Washington Bridge in Providence was halted this week for fear that evidence in the state's civil suit would be lost. "[R.I. Attorney General (AG) Peter] Neronha told WPRO radio he had spent two days working to safeguard bridge evidence from the wrecking ball and jackhammer," The Providence Journal reported Tuesday (subscription).

Spoliation of evidence occurs in a civil action or potential civil action when (1) an actor has a legal or contractual duty to preserve evidence relative to the civil action; (2) the spoliation defendant negligently or intentionally fails to preserve evidence in accordance with the duty; (3) absence of the evidence significantly impairs the complaining party's ability to prove the civil action; and (4) the complaining party accordingly suffers damages for inability to prove the civil action (1 Tortz 335 (2024 ed.)). Though a wrongful act, most states, including Rhode Island to date, regard spoliation as a doctrine of evidence, subject to procedural remediation within the four corners of a case, rather than a separate liability theory in tort law.

The instant case puts Aetna Bridge Co. and its partners in the bizarre position of being contractually bound to destroy parts of the Washington Bridge and to dispose of the debris in accordance with state law, while also being vulnerable to state accusations of spoliation if contract performance results in the destruction of evidence. The contradiction is yet more reason that the contract award was improper.

I'm doubtful that the state on its own even realized the problem. It was Wednesday last week that the Journal asked the AG's office whether parts of the bridge would remain available as evidence in the litigation. An AG spokesman had no "comment on ongoing litigation" on Thursday, and demolition stopped abruptly this week on Tuesday, after what Neronha described as "two days" of efforts.

Remembering Professor Frances S. Fendler

Congregation B'nai Israel
Sunday, Sept. 15, 2024, RJ Peltz-Steele CC BY-NC-SA 4.0

At Congregation B'nai Israel in Little Rock, Arkansas, on Sunday, I joined in the celebration of the life of Professor Emerita Frances Shane Fendler.

A native of Blytheville, Arkansas, Frances was a faculty member at the law school at the University of Arkansas at Little Rock, and also an alumna of the school, '82. Always an intellectual, she wrote the top paper on the July 1982 Arkansas bar exam. She clerked for the late Eighth Circuit Judge Richard Arnold and then litigated for (now) WilmerHale in Washington, D.C.

In 1986, Frances joined the faculty at Little Rock, where she taught courses such as business organizations, sales, and contract drafting for more than 30 years. She authored or co-authored articles and books, including a business organizations casebook and the Arkansas practice manual, Private Placements and Limited Offerings of Securities (2010). She served as a member of the bar, twice chairing the state association section on securities law, and she occasionally served as an arbitrator for the Financial Industry Regulatory Authority.

Most importantly, of course, Frances was a dear friend. When I struggled with the academic politics at Little Rock, she was steadfastly personally supportive, even if she did not have the bureaucratic sway to redress the situation. I did my best to be supportive, in turn, of Frances, when she battled breast cancer in the 20-aughts. I say this more because she often thanked me for it than because I deserve any credit; my recollection is rather frustration at my helplessness to do anything for her at that time. Upon her own remarkable strength, she prevailed in that first fight with cancer.

China Doll
Photo © RJ Peltz-Steele

Frances was a passionate dog lover. She was the first guest to visit my first dog, Rocky, when he came home to me, a puppy, in 2001. At the time, she had her precious China Doll, also an Australian shepherd. Frances remained always a trusted adviser on training and caring for Rocky over his nearly 18 years, right to the painful decision to end his life. My wife and I were plan B if a home in Arkansas could not have been found for Frances's beloved Honey Bear. When I visited Frances at her home in Arkansas one last time in October 2023, she gave me her cherished ceramic Aussie, a remembrance of China. The statuette, literally a "china doll," now stands guard over the ashes of my Rocky.

When we were together in 2023, we talked of all things big and small while organizing the papers of her father, the renowned Arkansas attorney Oscar Fendler. Most of Oscar's papers already resided at the archives of the library at the University of Arkansas at Fayetteville (UAF). But Frances had held back some of the more personal items, such as photographs and handwritten notes. She entrusted me with one treasure in particular: Oscar's unpublished memoir. With the help of research assistants, I am in the process of editing the book for publication, in accordance with Frances's wishes.

Many people helped to organize Frances's affairs in the last weeks. I express my especial gratitude to Linda, who took in Honey Bear; to Susan, who, with help from Melissa and Jessie, saw to the final dispatches to UAF; and to Tom and Suzy, who visited Frances often.

When Frances was young, from ages 19 to 21, she lived and was treated for depression at the Austin Riggs Center, a residential facility in Stockbridge, Massachusetts. She long kept that part of her life a secret, she explained to me in 2023, because of the stigma attached to mental illness. But in recent years, and especially contemplating her own end of life, she recognized that there need be no stigma. She had no shame in it, she told me; in fact, she said, those years, when at last she learned how to manage the darkness that had dogged her, and she made friends who understood, were the best two years of her life. She wanted people to know about her experience in the hope of inspiring others who struggle with depression to seek treatment.

Soon after her retirement from teaching, Frances was diagnosed with ovarian cancer. Having gone ten rounds with cancer before, and not having been given a hopeful prognosis, she chose to eschew treatment in favor of home hospice. Some weeks ago, the pain management in Arkansas became ineffective, and Frances relocated to Celia's House Hospice in Medford, Oregon. She was blissfully happy at the beautiful property when I spoke with her by telephone the week before she died. When the cancer reasserted itself, she declared, "Give me the pills," as she told me she would. At age 70, she availed of medical aid in dying (MAID) under Oregon's Death With Dignity Act. As her eulogizer put it Sunday, Frances lived and died on her own terms.

My life is richer for Frances Fendler having been in it.

Pentagon still stands, healed of 9-11 wounds

Leaving Reagan National Airport (DCA) yesterday, clear skies afforded a view of the Pentagon, which a comment on NPR this evening reminded me is the only building struck on September 11 and still standing. Living in Little Rock, Arkansas, in 2001, I remember many of us who had occasional business in the nation's capital thought that DCA surely would have to close. A shame, we thought, given its convenient proximity to district destinations. No doubt a result of hard work by federal officials, along with some blessings and some luck, DCA operates still. And that, business as usual, seems to me, is the best evidence of a society prevailing over terrorism. Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.

To contradict consistent record of impotence, DOT opens needed inquiry into airline miles programs

Washington, D.C.—The U.S. Transportation Department (DOT) last week opened an investigation of airline frequent-flier programs, and it's about time.

The old adage about wheels of justice turning slowly usually well describes the antitrust activities of the Justice Department (DOJ) and Federal Trade Commission (FTC). Only in recent years has the government begun to awaken to the rampant price-fixing in our economy that consumers have been accustomed to for decades. Runaway inflation shed light on how little choice Americans have in grocery stores, probably prompting FTC qualms over the Kroger-Albertson merger. Sky-high rents and a housing shortage similarly have prompted DOJ attention to rent-fixing.

Now it seems the emphasis is on the wheels part of the old adage, as DOT takes a belated interest in the airlines. Absurdly high prices, especially in domestic travel, probably stirred the agency giant. The Biden Administration and Buttigieg DOT have largely failed to deliver on infrastructure promises. So it's pleasing to see a glimmer of concern for consumer welfare vis-à-vis ever more profitable providers.

A window view sometimes makes flying a tiny bit less miserable.
RJ Peltz-Steele CC BY-NC-SA 4.0

Misery in the Air

As to domestic air travel, I remember President Obama saying the economy's great, but workers might have to move for jobs. Meanwhile we're encouraged to have multi-generational households to care for our elderly, and the great economy compels college grads to move back in with their parents. Is the whole family supposed to move to the same place at the same time? Air travel is a necessity for families in the vast geography of our national labor market, yet we continue to allow our oversized airlines, themselves products of mergers that should not have been allowed, to operate as if they're concierges of bespoke services.

Bespoke is ever less the consumer experience, even as prices soar. Six of my last six domestic flights, all on American Airlines, were hours late. I would be due a huge compensation check were I in the EU. From American Airlines? Nothing. To the contrary, I had to foot the bill out of pocket for transfers and overnights in pricey cities such as Chicago and D.C., else sleep in the airport. The Buttigieg DOT and Congress keep making noise about passenger compensation. But noise, to appease the electorate, is all it's amounted to. Don't even get me started on sticky trays, filthy seats, and cramped spaces on packed planes.

We All Fall Down

As to infrastructure promises, if you're thinking, "well, the Republican Congress": Save it. I don't want to hear it. The whole thing about Joe was his ability to reach across the aisle. And I didn't vote for either one of them, so if ever you tire of see-sawing between obstructionist opponents as an excuse for getting nothing done, stop voting for the only thing you're offered and come talk to me about how we dismantle the two-party system. Consumer choice indeed.

Yes, there was the infrastructure bill. Biden deserves credit for that, and I appreciate it. But even the Biden Administration knew that that would not even bring us level with our maintenance needs, much less make systemic investments.

Use of the infrastructure money, such as it is, raises serious doubts about the government's fiscal responsibility. My home state of Rhode Island is using federal infrastructure money to rebuild rotted wooden bike-path bridges that I use, so I'm selfishly pleased. But it wasn't the purpose of the bill to restore recreational paths for which the states should have planned anyway. Rhode Island failed to fund replacement for the decades when the bridges' inevitable expiry was well known; consequently, the bridges have been subject to dangerous detours for years since the failure. And the bridges are hardly vital infrastructure; the few people who actually commute on them are stymied by uncleared snow in the winter and an abrupt end to dedicated lanes at the ends.

I have doubts too about even the more clearly legitimate uses of the money. DOT and Amtrak plan to build out vital northeastern rail service westward in Massachusetts, a welcome initiative. But the trains will not be any better than the embarrassingly slow service we have in our rail system now; driving will still be preferable for speed and reliability. I remember "Amtrak Joe" saying something about high-speed trains, you know, like in the developed world. The best the administration seems to have managed is to ask Japan for help with high-speed rail. I guess we don't have the technology.

Round and Round

Topping it all off, there's the corruption that the government seems unable to get a handle on. Or as we call it in America, contracting. Rhode Island got caught with its pants down last year when the key Washington Bridge alongside the I-95 corridor in Providence was found to be fatally defective and was suddenly closed. A "junior engineer" spied the rusty deficiency, media reported, or as I like to say, a "former junior engineer" who didn't get the memo. Because the odds are nil that inspection contractors, who enjoy a revolving door with state government offices, somehow failed to notice the problem for years.

The bridge has to be torn down and replaced, and costs are spiraling. When the state bid the demolition project, intense media and public scrutiny compelled a realistic cost estimate of $31 million. But contractors don't emerge from their pools of money for realistic. The state ultimately awarded the work for close to $50 million. But wait, there's more. The company that was awarded the demolition contract is also a defendant in the state lawsuit over the defective bridge. You can't make this stuff up.

The overall estimate, no doubt too low, for the Washington Bridge replacement is about a half billion dollars, and we should pause a moment on that number. It can be difficult to assess the legitimacy of these big numbers, as the average consumer has little frame of reference to differentiate a million from a billion. For some reason I play the lottery only when the jackpot hits a half billion, as if I would not be content with a tenth as much.

The Massachusetts Bay Transit Authority (MBTA) recently estimated that it would take $24 billion to make the Boston T work the way it's supposed to. That's not to improve the system; that's just to bring it up to serviceable: timely trains, functional stations. The T is infamously unreliable and plagued by maintenance issues. Yes, it is an old system, but that doesn't fully explain the problems. An extension of the green line opened in 2022, for example, and saw such problems with defective tracks that trains had to be slowed to less than walking speed.

Chair: Wait, I see a hand. Rhode Island, you have an idea?

Rhode Island: Yes, Mr. Chair. We propose that the MBTA hire the contractor that built the green-line extension also to remove and replace it.

Chair: Thank you, Rhode Island.

Rhode Island (to camera): Baltimore, 🤙 <<call me>>.

In contrast, the city of Brisbane, Australia, is rebuilding its metro system, including a new fleet of electric vehicles and excavation of a new tunnel, for a price tag of only $1.4 billion. That's Australian dollars; it's about US$930 million. Brisbane's metro is a smaller system than Boston's, yet I can't help but think that the T couldn't mop up the urine in the system for a billion dollars.

I might not know millions from billions, but I know that 1 for new is a better buy than 24 for old. It's hard not to conclude that something is amiss in accountability for infrastructure spending. If only there were, I don't know, experts, or something, who don't work for contractors. Maybe they could work in the government, for the public.

Miles To Go

Well the good thing about antitrust enforcement is that it requires lawyers, but no new construction. Maybe the Buttigieg DOT has found its knack.

The ways in which airlines have innovated consumer exploitation in frequent-flier programs are sufficiently many to constitute a course in business school. Well, bad-business school. Violations of antitrust law are so painfully obvious that it's hard to believe we have antitrust enforcement at all.

The legal status of frequent-flier miles has evolved since the programs were conceived circa 1979. They started as little different from tenth-sandwich-free punch-card programs. It was the funny kicker on the news when they were first contested as property in legal contexts such as divorce. That's not an unprecedented evolution, by the way. Divorce has a way of showing us what's valuable to people. Dogs and cats are transitioning from mere chattel to intangible value in tort law by way of divorce court.

Notwithstanding limited legal exceptions, courts tended nonetheless to regard the airline mile as a purely contractual creature. Airlines urged that construction and delighted in it. The miles are thus controlled by terms of service, to which consumers bind themselves usually with neither meaningful choice nor actual knowledge. Per the law of boilerplate in the information age, the airlines reserve the right to change the terms more or less unilaterally. That's why the airlines can and do devalue miles routinely and add new redemption restrictions, such as blackout dates and transfer limits.

Corporations' concerted efforts to construct self-serving legal doctrine has not stopped miles from becoming "a virtual currency." The government has long tolerated this dichotomy of law and reality. And things might have continued swimmingly for the airlines had they not succumbed to greed, the Achilles heel of the American corporate ethos. Once the airlines understood that miles and money were interchangeable, they started making them, literally, interchangeable. Today a consumer can earn miles per dollar on credit cards, transfer cash-back rewards to mileage programs, and simply buy miles.

Devastatingly to the airlines' antitrust position, they doubled down on co-branded credit cards. Those agreements are a specific target of the DOT investigation. I have an American Airlines card and a United card; I've had Southwest and Delta cards in the past and probably will again. My cards get me earlier boarding and other perks. Most importantly, they (thankfully excepting Southwest) "save me" baggage-check fees. The annual fee on each card is $99; it costs $80 to check a bag roundtrip.

I put "save me" in quote marks because, remember, there didn't use to be baggage fees. Co-branded credit cards date to the 1980s, but they really took off, no pun intended, in the 20-aughts. Baggage fees were introduced in 2008. Coincidence much? Consumers have been coerced into having the credit cards; it would be economically irrational not to. Of course, paying the airfare with the card earns more miles. The cycle continues.

Ganesh Sitaraman aptly reported in The Atlantic last year, as the headlines put it, "Airlines are just banks now: They make more money from mileage programs than from flying planes—and it shows." 

But airlines are not regulated as banks.

And that's why federal scrutiny is long overdue.

Scribd has the DOT Template Letter on the Airline Rewards Inquiry, issued to the four largest carriers, American, Delta, United, and Southwest. HT @ TPG.