Comparative law research reaches prisoner rights; women's rights; tech patents; internet, drug reg

Law Offices of James L. Arrasmith CC BY-NC 4.0

In fall 2024, I had the privilege of teaching Comparative Law for the sixth time.

For my time and energies, the course is the best one to teach, because it offers the best opportunity for a lifelong learner. Law teaching usually requires mastering a broad and deep range of content so that one can guide students capably through it. Not so in Comparative Law, in which the teacher cannot possibly know the substantive content of all of the legal systems of the world. Rather, the course is about arming students with the tools of comparative methodology, and then savoring the opportunity to learn from them, what they find in their own research.

This year was not lacking in the savory. As I have in the past, I am proud and pleased to share a collection of abstracts representing the yeoman work of my students in the fall semester. You will see that the students devised some wonderfully innovative theses. The subject matter that researchers tackled spanned prisoner legal rights, marijuana regulation, black women's representation in the legal profession, women's rights in Afghanistan and in Dutch sex work, semiconductor patents, and regulation of online misinformation.

Alayna Wageman, Prisoners Are Human Too: A Comparative Analysis of Prisoners' Right to Legal Assistance in Chile and the United States. Both Chile and the United States guarantee, through their constitutions, the right to legal counsel for individuals who cannot afford a lawyer during criminal prosecutions. However, prisoners lack resources to access legal assistance when their basic human rights are violated while incarcerated. This project seeks to show how the extreme traumatization of citizens in the United States from the years of slavery and the extreme traumatization of citizens in Chile from the years of dictatorship continue to impact the treatment of prisoners today. This paper begins with an overview of the history of slavery in the United States, specifically in Massachusetts, and an overview of the history of dictatorship in Chile. Next, the paper will explain the laws that define the right to legal assistance for prisoners in Chile and Massachusetts. Finally, the paper compares two programs designed to improve prisoners' access to legal resources: the Prisoners' Legal Services (PLS) of Massachusetts in the United States and the Penitentiary Defense Program (Programa de Defensa Penal Pública Penitenciaria) in Chile. This analysis demonstrates how the influence of the historical extreme traumatization of societies continues to impact the treatment of prisoners in both countries, with focus on the limitation of access to legal assistance in prisons. The paper concludes by acknowledging the efforts of the PLS and the Penitentiary Defense Program, which are working to further protect the rights of prisoners.

Carson Powell, Quality Over Quantity: A Comparative Analysis of Marijuana Quality Control Regulations Between the Netherlands and the United States. This paper compares the law and regulations of the United States and the Netherlands, on the regulations that are used to ensure the quality of marijuana sold legally. First, the paper focus will be on the Dutch marijuana policy, and its past, current and future regulation protecting the quality of the marijuana sold in "coffee shops." Next, the focus will shift to the United States and specifically Colorado regulations when testing the quality of marijuana. The paper views policies implemented to ensure quality and safety within the production, testing, distribution and the sale of cannabis/marijuana products. Finally, the paper compares Netherlands regulations on marijuana quality assurance and with Colorado laws and regulations that establish the safety of state citizens. The paper compares the laws and regulations, how they relate to each other, and the social results. The paper concludes with recommendations based on the comparisons drawn from the two parties, and whether each can become more effective and efficient with its own processes.

Kennia Joseph, A Comparative Analysis of Gender and Racial Equality for Black and Nigerian Women in the Legal Profession. This paper compares the laws in the United States and Nigeria that address gender and racial equality and their effect on black and Nigerian women in the workforce, specifically in the legal profession. One of the key issues in ensuring gender equality in employment lies in enforcing existing laws and policies. The comparison between Title VII of the Civil Rights Act and the overturned affirmative action practices thereunder, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the failed Nigerian Gender and Equal Opportunity Bill of 2016 highlight underrepresentation in the legal field. Despite developing systems to support and encourage race and gender equality, black women from different cultures, and political, societal, and economic climates share experiences in the same profession with similar laws, initiatives, and policies.

Nick Saathoff, A Comparison Between Patents on Semiconductors in Germany and the United States. Patent law in Germany and the United States protects those who invent or discover patentable processes. Ideologies between the two countries differ in the field. In the United States, a patent is mainly a monetary protection. In Germany, in addition to monetary protection, there is an honor and prestige associated with inventing. This paper discusses patent law in each country specific to the field of semiconductors. Semiconductors are one of the most technologically significant patentable items in the world today. The paper initially provides an overview of patent law in each country and what role semiconductors play. This paper identifies similarities and differences between patent protections, patent quality, and patent strategies in the United States and Germany. In doing so, the paper discusses key requirements of obtaining a patent. The paper discusses one requirement at a time, discussing the interpretation in the United States and the interpretation in Germany. The paper then notes patent statutes in each country specific to the semiconductor industry. Additionally, the paper will discuss nuances in each country’s patent laws in the semiconductor industry.

Rebecca Stump, A Comparative Look at Sex Work in the United States and the Netherlands. Sex work, historically, has been a controversial occupation for a variety of reasons, including religious beliefs, women’s rights, bodily autonomy, and the extent to which the state should regulate an individual's choices over their own bodies. During this period, sex work has been considered a shameful profession, one which must be criminalized to deter human trafficking or coercion. However, as understanding and advocacy for bodily autonomy and freedom to self, and countries such as the Netherlands reform and change their sex work laws, there are movements for change to law in the United States. The aim is for a discussion, through comparison of the legal systems of Nevada and the Netherlands and the main avenues for reform, partial decriminalization and full decriminalization or legalization, the social and legal implications of legalization of sex work to further investigate reform in the United States. Within research regarding sex work, there are critical biases that must be acknowledged prior to engaging in discussion. First, and foremost, is the moral and ethical considerations of sex work. Sex work is not merely seen as an occupation free from moral implication, but an occupation for which every person may offer their individual consideration as to the ethical value of the work. To engage in substantive discussion, morality must be stripped away. Instead, one must be willing to engage in discussion solely on the legal ability of an individual to make a choice regarding the services they offer using their person, and the role of the state in legislating that decision. To that point, a discussion regarding the legality of sex work is necessarily a discussion of the extent to which the state should regulate labor. There exist various viewpoints as to the question of federalism and the role of the state to regulate. This bias must also be considered.

Sean Pillai, Afghan Women's Human Rights: A Legal Analysis of Constitutional Governance vs. the Taliban Rule. Afghanistan’s history of political turbulence and violent turmoil have repeatedly challenged the legal and social status of women. Afghanistan attempted to rebuild as a democratic nation and included rights to protect women. Under the 2004 constitution, women gained significant legal rights, such as access to education, safety and freedom of movement and employment opportunities, marking a stark contrast to the Taliban's earlier reign (1996-2001). However, the progress made was curtailed with the withdrawal of U.S. forces in 2021 and the Taliban return to power. This analysis will address the shift in legal protections and the impact on societal roles for women contrasting the two eras: the 2004 constitutional government and the Taliban regime 2021 to present. By comparing the legal frameworks and implementation of women's rights in key domains such as women's access to education, safety and freedom of movement, and women's access to employment, this paper seeks to provide an understanding of the impact the two legal systems have on women.

Shiloh Worthington, The Digital Services Act vs. Section 230: The Western Hemisphere's Battle Against Misinformation. The European Union and the United States have both recognized the disparate effects of rampant and unchecked misinformation spreading across the internet. However, each has a distinct approach to combatting this epidemic of troublesome content. The EU battle against misinformation is best exemplified by the recently passed Digital Services Act (DSA), which places the primary responsibility of stopping the spread on the platforms themselves. Meanwhile, in the United States, the struggle to fight misinformation is at odds with the First Amendment rights of the platforms. Section 230 of the Communications Decency Act offers platforms total immunity for their misinformation content-removal practices, no matter how it conflicts with individual freedom of expression. Further conflict arises as the EU's DSA attempts to force American-based platforms with European audiences to comply with its content-removal practices under misinformation-related pretenses, even if doing so would remove American citizens' content otherwise protected by the U.S. Constitution.

Watch for these students on upcoming bar pass lists in a state near you!

Flags from Flagpedia, except Afghanistan Taliban from Wikimedia Commons, all public domain.

Law class visits Constitutional Court of Portugal

Law students and Dean Sam Panarella (left)
visit the Constitutional Court. © RJ Peltz-Steele

Since last week, ten talented U.S. law students have been making the most of Lisbon, Portugal, in UMass Law's first class abroad.

In our maiden venture, we are studying comparative data protection law in the United States, European Union, and Portugal. We have been treated to superb lectures by law faculty of our partner institution, the Universidade Católica Portuguesa (UCP).

Today, a UCP faculty member welcomed us to the home of the Portugal Constitutional Court, where he also serves as Vice-President. Justice Gonçalo de Almeida Ribeiro spoke to us there about constitutional conflict in the EU legal system.

The justice had instructed students to prepare by reading Digital Rights Ireland, a 2014 case in the EU Court of Justice (CJEU), and the "Metadata Ruling," a 2019 decision of the Constitutional Court of Portugal. In Digital Rights, the CJEU had struck down an EU directive on data retention as inconsistent with fundamental rights under the European Charter. 

Justice Gonçalo de Almeida Ribeiro addresses law students.
RJ Peltz-Steele CC BY-NC-SA 4.0

The case marked a recognition of the CJEU's own power of judicial review. But it also raised a confounding question. The CJEU lacks authority to review national legislation directly. So what would become of national, domestic laws that had been enacted already pursuant to the stricken EU directive? 

The Portuguese Constitutional Court in Metadata construed Portuguese constitutional law in harmony with the EU Charter to strike down as well the problematic provisions of Portuguese law that had been enacted pursuant to the directive. The responses of the Portuguese and other national constitutional courts to Digital Rights thus marked a pivotal point in the evolution of the EU's peculiar brand of "federalism" (to jam a square peg into a round word).

All of the law students in the class deserve praise for being good-natured and flexible in the face of a fluctuating itinerary for this fledgling Portugal project. They all assert, nonetheless, that they are here first and foremost for this remarkable learning opportunity, and not for myriad other benefits, for example, to see Taylor Swift at Benfica Stadium at what are by U.S. standards bargain ticket prices. That was icing.

UMass law students with me at Universidade Católica Portuguesa
© Prof. Sofia Pinto (licensed)

 

Global Law Classroom unites law students online

Law faculty around the world are organizing the Global Law Classroom to debut in the fall semester of 2024.

Global Law Classroom (GLC) brings together law students from participating countries via Zoom to study and discuss contemporary issues in comparative and international law. GLC started as a project of the European Legal Practice Integrated Studies program (ELPIS), under the EU Erasmus umbrella. 

The program was conceived and is coordinated by Melanie Reid, associate dean of faculty at the Duncan School of Law, Lincoln Memorial University. I've participated on the plenary faculty and as contributing faculty on the environmental law team and human rights team, developing academic modules in those areas. My students in three-credit-hour Comparative Law in the fall will participate in the GLC for one-third of their class-hours.

Besides human rights and environmental law, modules include criminal law, cybersecurity, anti-discrimination, and artificial intelligence, as well as an introduction to global lawyering and a negotiation exercise on climate risks.

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.

Rule of law depends at least in part on how we teach

Differences in legal education between civil law countries and the United States—and analogous divergence in priorities in the American law school classroom—might have ramifications for the rule of law.

Prof. Vernon Palmer leads an Obligations I class.
Tulane Public Relations via Wikimedia Commons CC BY 2.0

Legal education in the United States and in the civil law countries of Europe are famously different. The American model is identified with case law, the Socratic method, and inductive reasoning. The civil law model is identified with code, lecture, and deductive logic.

Both sides have plusses and minuses, and that might be why, in recent decades, we see signs of change and convergence. American legal education has sought to marginalize the traditional model to one strategy on a menu of effective pedagogies. Meanwhile, many schools in Europe have sought increasingly to import the "Paper Chase" style of classroom engagement.

Teaching periodically in Poland for more than 15 years, I've found students delightfully receptive to the classroom experience that U.S. law students take for granted. I'm inclined to conclude, generalizing of course, that the way U.S. law professors interact with students has the potential to contribute valuably to education in Europe, where lecture still predominates. My U.S. students tend better than their European counterparts to develop forensic skills and to use analogical reasoning.

At the same time, I have found, generalizing again, that my students in Europe are better versed than their American counterparts in the history and philosophy of law. Their understanding of context is informed by a storied Latin vocabulary. They are better able to convert memorized knowledge to application.

There is no doubt that the way law schools teach has an impact on how lawyers work and think about the law. What's less clear is the extent to which this impact represents a normative social advantage—for example, better preparing lawyers to protect human rights and uphold the rule of law.

In recent years, Europe has been struggling with rule-of-law crises in central and eastern Europe. In particular, populist movements embodied in the Duda and Orbán regimes in Poland and Hungary have given rise to disputes over judicial independence. In a similar vein, the Romanian legislature enacted judicial reforms in the late 2010s. 

Ostensibly, the Romanian reforms were implemented to combat corruption. But that's not how Brussels saw it. The reforms wound up before European Union courts, culminating in judgments in 2021 and in 2022. The 2021 judgment of the Grand Chamber has been well regarded as outlining a progressive tolerance for the development of the rule of law while affirming EU supremacy ("primacy") in constitutional law for matters within the union prerogative.

Unfortunately, Romanian resistance to that supremacy caused the Grand Chamber to revisit the problem last year. Notwithstanding the proceedings in European courts, pro-reform domestic authorities and the constitutional court of Romania had upheld the reforms. Authorities moreover asserted that lower court judges could be subject to discipline for testing Romanian constitutional court rulings against the requirements of EU law.

The Grand Chamber held in 2022 that "ordinary courts of a Member State" must be permitted "to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law"; and that domestic judges may not be disciplined for "departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law."

At the meeting of the General Congress of the International Academy of Comparative Law (IACL) in Asunción, Paraguay, in October, a panel on rule of law examined national reports from 16 countries, including the United States, Poland, Hungary, and Romania. I found especially compelling remarks by the rapporteur for Romania. (I'm sorry that I did not get the rapporteur's name; it does not appear in the composite issue report.)

Law professors everywhere, laudably, want their students to be prepared for any job, the rapporteur said. But European students feel they're trained as if to become judges. Roman heritage, Roman law, he said, is sacred. Motivated to prepare students to do legal reasoning, he said, European law professors train students that there is "only one correct meaning," "one true meaning" of a text, and the students, in turn, "become very formalistic." 

Often, he said, judges then "miss the point" by "applying law automatically." And that was the problem, he opined, with the Romanian constitutional court in upholding the judicial reforms. The court reasoned, he explained, that because rule of law exists in both the Romanian constitution and EU treaties, the court "blindly" concluded that Romanian law comports with EU law. "False," he said; "it's the way in which we teach."

In other words, the Romanian judges assessed black-letter law for comportment with black-letter law without digging beneath the surface. They were ill equipped, or declined, to look beyond formalism to test the law functionally. Moreover, by shielding the constitutional court's analysis from further interrogation in the lower courts, top jurists were excessively insistent on the exclusivity of their prerogative: one true meaning.

I don't know enough about the situation in Romania to assess the merits of the Romanian position, or the EU position, or the perspective of the rapporteur. But I was intrigued by his parting thought:

"I'm astonished," the rapporteur said, that "in the United States, you practically criticize law professors that they don't tell you the true meaning. It would be a pity to change that."

As I wrote recently, law professors in the United States are under great pressure to abandon traditional teaching methods in favor of bar prep and skills readiness. Law schools such as mine place little value on policy, theory, and moral deliberation, but prize memorized law and practice skills. The latter are valuable, to be sure. But it's the former that make law a profession and not mere occupation. 

Prioritization of occupational objectives pressures professors to abandon the traditional teaching strategies of the American model. Cases give way to code, or rules. Inductive reasoning gives way to deduction. Socratic dialog gives way to PowerPoint outlines, recall games, and lectures. This is convergence of a sort. It's not a good sort.

I don't contend that the traditional model of legal education in the United States is superior to other models. Nor would I enshrine the case method to the exclusion of a multitude of teaching strategies. But American legal education in the 20th century excelled at preparing lawyers to turn problems over and examine them through many lenses.

If we do our job right, law professors create a space for creativity to thrive. That creativity defines law as a profession. And only as professionals can lawyers safeguard the rule of law.

It would be a pity to change that.

Me and my mate Octavio Sosa in Paraguay. A first-year engineering student, he plays a mean guitar.
RJ Peltz-Steele CC BY-NC-SA 4.0

 

Americans chase dream of air passenger rights, while EU consumer protection reaches age of majority

Boarding a flight in Ilorin, Nigeria, in December 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

A Savory Tort Investigation

The Christmastime Southwest meltdown has prompted tongue wagging in Congress over a "Passenger Bill of Rights" to redress the radical imbalance of market power that has left Americans at the mercy of an oligopolist airline industry for decades.

Don't get your hopes up. In the United States, airlines have been playing cat and mouse with regulators since the mail took to the air in the 1920s. And the cat has never been enthusiastic about the chase. 

Passenger protection from exploitative practices in the airline industry has been a congressional dog whistle since overbooking became a business model in the 1960s. Ralph Nader took on the issue, along with so many others, in the 1970s. We've swung back and forth between transparent pricing and the piling on of surprise fees enough times to make you use your sick bag. Over the years, more passenger bills of rights have died in Congress than we have airlines. Well, that's a low bar, but you take my point.

As in all things when corporatocracy clashes with simple equity in the marketplace, the European Union is doing a better job than the United States to level the playing field. The crown jewel of more robust European consumer protection is Regulation 261/2004, which has been on the job for almost twenty years. When flights are delayed or canceled, EU 261 requires compensation to customers in cold, hard cash.

The circumstances that lead to an EU 261 payout are well circumscribed. But when it happens, an airline feels the pinch. The regulation pertains upon delay or cancellation, EU guidance explains (bold in original), when:

• the flight is within the EU and is operated either by an EU or a non-EU airline;
• the flight arrives in the EU from outside the EU and is operated by an EU airline; or
• the flight departs from the EU to a non-EU country operated by an EU or a non-EU airline.

Here is the compensation schedule, per passenger:

• Type 1: €250 for a delay of two-plus hours, or €125 if re-routed to arrive fewer than four hours late, for flights of 1,500 kilometers or less.
• Type 2: €400 for a delay of three-plus hours, or €200 if re-routed to arrive fewer than four hours late, for intra-EU flights of more than 1,500 kilometers and for all other flights between 1,500 and 3,000 kilometers.
• Type 3: €600 for a delay of four-plus hours, or €300 if re-routed to arrive fewer than four hours late, for all other flights.

There need be no compensation when the delay can be attributed to a cause extrinsic to the carrier, such as weather. A passenger's receipt of compensation, including non-monetary assistance, pursuant to the law of a non-EU country precludes an EU claim.

Cash compensation is a welcome recognition that airline passengers suffer real costs when flights are delayed or cancelled—more than what is covered by a meal voucher or even, when necessary, an overnight stay. Ours is now a world of nonrefundable reservations for hotels, cars, and tours. Travel insurance is becoming a must, and yet another expense. Vacation time meanwhile is increasingly scarce, especially for Americans.

Meaningful compensation incentivizes airlines to work smarter. For example, scheduling departures too tightly, failing to anticipate mechanical needs, or simply de-prioritizing the correction of problems all become decisions with bottom-line consequences.

The outer jurisdictional limits of EU 261 are not spelled out on the face of the regulation, but European regulators and courts largely have construed silence expansively. EU 261 claims are not limited to EU citizens and airlines, as long as an EU country can exercise jurisdiction. EU 261 has an exception for "extraordinary circumstances," but courts have construed the exception narrowly, excluding technical problems. Court rulings in the late 2010s led to the application of EU 261 to U.S. carriers operating international connections to and from the EU.

At the same time, compliance has been a mixed bag. The fuzziness at the margins of EU 261 application, along with the reality that not all domestic authorities have been prepared to invest fully in enforcement, has afforded airlines room to fudge fulfillment of their obligations.

In the event of a maloccurrence, airlines are obliged to make passengers aware of their EU 261 rights, and passengers file claims with the airlines, not with regulators. The airlines can be less or more forthcoming with notifications and the ease with which consumers can file claims. There are reports, moreover, of airlines simply not paying what's owed. As a result, a cottage industry has arisen of intermediary companies that facilitate consumer claims in exchange for significant contingency fees.

As an American citizen traveling to, from, and through the EU, I’ve made some EU 261 claims in recent years, since the regulation expanded to reach foreign flight legs. I tested different options to make my claims, and I promised to share some outcomes.

No-Coverage Cases

It’s first important to articulate unfortunately ever more common passenger experiences that are not covered by EU 261—and, needless to say, precipitate no consumer protection in U.S. law.

My fellow Lagos-bound passengers and I wait in Paris.
RJ Peltz-Steele CC BY-NC-SA 4.0

CLAIM DENIED by Air France: EU transit.  In December 2022, I traveled from Boston, Massachusetts, to Lagos, Nigeria, via New York and Paris.  Because of a mechanical problem, after several hours’ delay, the connection from Paris to Lagos was canceled and rescheduled for the following day.  My booking was with Delta; KLM owned the itinerary; and the canceled connection was operated by Air France. EU 261 charges the operator with responsibility. Air France provided a €15 meal voucher and overnight accommodation, including a shuttle after quite a long wait. Such intermediate compensations do not preclude EU 261 awards.

Air France denied the type-3 compensation claim I filed directly with the airline. An Air France agent wrote:

I am really sorry to have to inform you that the EU Regulation 261/2004 does not apply when flight departs from a point outside the EU or EEA and travels to a final destination outside EU or EEA, via a connection in an airport in the EU or EEA.

Since your flight departs from Boston and arrives in Lagos via New York and Paris, we regret our inability to accede to your request for compensation on this occasion.

To be clear, every leg of this journey was a different "flight," with its own flight number; this was not a continuation "flight." My itinerary originated and terminated outside the EU. At the same time, Air France's interpretation of "flight" in EU 261 seems consistent with my other claim experiences. I suppose Air France was obliged to pay compensation to passengers who originated in Paris; I don’t know. I was not given any particular notice of EU 261 rights; maybe passengers originating in Paris were.

NO CLAIM against Air France: Advance cancellation. In November 2022, I traveled from Boston, Massachusetts, to Kraków, Poland, via Amsterdam.  I booked through Egencia; Air France owned the itinerary; KLM operated the connection to Kraków.

A month after my purchase, but still a month before the departure, KLM canceled the connection to Kraków. KLM rebooked me on another flight, lengthening my layover by five hours and putting me late into Kraków. Air France offered a full refund, in the alternative, but refused to book me on another carrier that would arrive earlier into Kraków.

Patriotic illumination aboard an Air France flight.
RJ Peltz-Steele CC BY-NC-SA 4.0

The problem here was that I had paid more for a morning arrival in Kraków, because I had to work there that day. I could have booked for the midday or later arrival with another carrier for less money at the time I purchased, had I wanted to. I chose the SkyTeam Alliance specifically for the early arrival. In the month since the purchase, the alternatives had risen exorbitantly in price as international itineraries. I could still buy a replacement connection to Kraków for midday arrival from another carrier, but Air France also refused to release me from the KLM connection. If I failed to appear for the KLM connection, Air France would cancel my ticket home.  I had no choice but to accept the change and miss most of my work day.

KLM claimed that it canceled the morning connection—a month in advance—because of a "mechanical problem." Apparently, no regulation requires an airline to tell the truth. I rather believe that KLM canceled the flight because SkyTeam's multiple flights to Kraków were undersold.

I could not make an EU 261 claim, because airlines are permitted to make whatever changes they please more than seven days before departure. This is a big gap in consumer protection, because passengers have no ability to rebook with another carrier so close to the departure date.

I did complain to the U.S. Department of Transportation (DOT), because it is impermissible, even under U.S. regulations, for a carrier to cancel a flight merely because it's undersold. Unfortunately, this rule is rarely enforced, because it's so easy for a carrier to point to another reason for the cancellation. KLM continued to claim mechanical failure, never explaining how that hurdle could not be overcome with a month's advance notice.

DOT took no action, but entered my complaint in its "industry monitoring system." I suppose this is the same system through which, a mere 16 years after Southwest began A-B-C boarding, it seems finally to have dawned on federal regulators that maybe children should not be forced to sit next to strangers. That would have been a nice policy change to have had when my daughter was growing up.

NO CLAIM against Turkish Airlines: Airport change.  This is an older matter, but I’m throwing it in here because it's a variation on the problem of advance cancellation that might well happen to other people in today's tight market. 

In November 2020, I was to travel from Boston, Massachusetts, to Khartoum, Sudan, via Istanbul, on Turkish Airlines.  Within a week of departure, Turkish canceled my Boston flight and rebooked me on a departure from New York JFK. That’s not an easy or costless transit, from my home to JFK: a four- to five-hour drive each way, or a slow train with multiple transfers. Turkish refused any compensation, offering only complete cancellation as an alternative, and that only when I asked.

This was not an EU 261 matter, because there was no point of contact with Europe.  If the same thing happened, though, with a transit in Europe, EU 261 would not have applied, at least according to the reasoning of Air France in the above-described claim denial. If Turkish made such a change for an EU-bound flight, I hope that EU 261 would apply. I wonder what would happen if Turkish changed the airport, but not the flight number; that's not a delay or a cancellation.

I'll never find out, because I now exclude Turkish Airlines from my fare searches. I suggest you do the same.

Coverage Cases

CLAIM SETTLED with SATA Air Açores: Delayed flight within EU. In July 2022, I traveled within Portugal, from Lisbon to Terceira Island, on SATA Air Açores. Because of a mechanical failure, my 4:15 p.m. departure was delayed to 9:55 p.m. SATA gave me a €10 food voucher. I incurred some additional expense having to get a nighttime transfer on the island, and I lost some daylight leisure time.

My SATA rights notice.

Lisbon to Terceira maps out at 1,555 kilometers, so just over the threshold for a type-2 claim. When I received the voucher at the airport, the agent also gave me a well copied notice of rights in paper. The notice was in Portuguese with no translation.  In Portuguese, the notice accurately described the three types of EU 261 events, but conspicuously omitted any numerical amounts of compensation. In late July, I filed a €400 claim directly with SATA via email.

In September, SATA responded via email with a counteroffer: €300. I accepted. SATA sent me a form to provide my banking information for a wire transfer. I did so, but SATA wrote subsequently to say that it couldn't get the transfer to go through—foreign payers often struggle to align their parameters with U.S. bank data—and that it would send a check. In November, I received a paper check in the mail for US$322.

I accepted the SATA offer because I thought it was more than fair, even though I was entitled to €400 under EU 261. SATA implicitly acknowledged as much by offering more than €250. But my roundtrip ticket with SATA had cost me only €255. And I didn't feel there was any misfeasance on SATA's part. There was no indication that the mechanical failure could have been anticipated; airport agents acted quickly and efficiently to reschedule; and SATA tasked the flight to another plane the same day, if later. Overall, I remained happy with SATA service, despite my lost time. I don't know what SATA would have done had I refused the offer and insisted on €400.

CLAIM PAID by American Airlines: Delayed flight in United States. Also in July 2022, I traveled from Lisbon, Portugal, to Boston, Massachusetts, via Philadelphia, Pennsylvania. I booked on Egencia, and American Airlines operated all flights. The connection from Philadelphia to Boston was delayed more than three hours, but less than four.

Had American Airlines not made such a mess of this delay, I probably would not have thought to apply for EU 261 compensation. This was the kind of straightforward poor customer service that, sadly, Americans have simply come to expect. The delay seemed to have resulted from the unavailability of crew. Passengers actually boarded the plane, and then we were ordered to deboard and return to the terminal. Gate agents offered conflicting explanations. They seemed to be arguing with each other. The tension was contagious, and information was scarce. Space around the gate was overcrowded. The scene was chaotic, ugly, and frustrating.

It's not immediately apparent that EU 261 applies. The flight was a domestic connection; there were passengers on board with no passports. This was the inverse of the Air France claim-denial situation I described above. My point of origin in the EU was dispositive, even when the problem arose on a domestic connection in the United States. My American citizenship was immaterial. The relevant facts under EU 261 were that my itinerary started in the EU, and I arrived more than three hours late to my final destination.

Even insofar as EU 261 applied, I wasn't sure what type of claim mine was. The overall travel distance, the "flight," defined by itinerary, was more than 5,000 kilometers. But the "flight," defined by a leg with unique flight number, from Philadelphia to Boston was less than 500 kilometers. 

Under the circumstances, I expected that if I made a claim, American would deny it. After all, I might notionally be entitled to make a claim under European law, but where would I enforce? The U.S. DOT barely enforces U.S. regulations; it's not likely to expend resources to enforce foreign law. The relevant EU jurisdiction was Portugal. But would I, a non-European, have standing before a Portuguese regulatory authority? 

With so much uncertainty, I was inclined to let the matter drop. But over the next couple of days, I became angry again that American never reached out with any kind of apology for its mess. What the heck, I thought. At least filing a 261 claim would let me vent.

At the same time, because I seriously doubted that I would see a dime, I decided to try using an intermediary. After reading some reviews, I chose AirHelp, a 10-year-old startup from Berlin that is now global. AirHelp promises to make the claims process easy, and it did. In late July, I uploaded my documents and provided a short description of what happened. I got to vent.

AirHelp kept me apprised of my claim status. It sent me an email saying it had determined that I had a valid claim for €300. That seems right, using the itinerary as the measuring stick to reach type 3, and acknowledging that the delay in the end was under four hours. AirHelp said that it would make that demand of American Airlines. Thereafter, AirHelp periodically let me know that it was still waiting to hear back.

To my surprise, in mid-November, AirHelp told me that American had agreed to pay €300. AirHelp sent me an invoice showing that it was deducting its 35% contingency fee of €105. AirHelp sent me a check for the difference in U.S. dollars, $201.38. The fee was hefty, but maybe not bad for a claim I never thought would be honored.

✈     ✈     ✈

In sum, EU 261 is a powerful accountability tool, even if, 18 years on, it leaves some wide gaps in consumer protection. Americans should have at least as good a mechanism at their disposal. Our airlines meanwhile are fighting against accountability, trotting out the usual "be careful what you ask for" warning that our mere expectation of market equity will make air travel unaffordable. Seems to me that if American consumers are going to lose either way, misery loves company.

Sponsored in the present U.S. Congress by Senators Richard Blumenthal (D-Conn.) and Ed Markey (D-Mass.), the "Passenger Bill of Rights" now pending as S. 178 calls for a ticket refund and re-routing, even on another carrier, for delays of one to four hours, and, additionally, $1,350 cash compensation for delays of more than four hours.

I'm sure the check's in the mail.

EU leverages trade for sustainable development

Attorney Cyprian Liske presents at the University of Bologna.
Used with permission.

"Sustainability" is the word of our times, and the European Union has more than a decade's experience building sustainability expectations into trade agreements.

At the University of Bologna in October, for a program of the Guild of European Research-Intensive Universities, doctoral candidate Cyprian Liske, my friend, colleague, and former student, presented his research on sustainable development provisions in EU trade agreements concluded from 2010 to 2020. Here is the abstract:

On 27th November 2019, Ursula von der Leyen, at that time President-elect of the European Commission, delivered a speech in the European Parliament, in which she set a concise programme for the next 5 years of her term of office. "Sustainability" was mentioned in this speech no less than 8 times. "We have to bring the world with us and this is already happening," Ms. President said. "And Phil Hogan [at that time Commissioner for trade] will ensure that our future trade agreements include a chapter on sustainable development."

Indeed, the EU has been including trade and sustainable development (TSD) chapters in new-generation trade agreements since the Free Trade Agreement with South Korea (2010). However, such TSD chapters, devoted to the realisation of the Sustainable Development Goals, including environmental protection, preventing resource depletion, or protecting workers' rights, differ substantially in agreements concluded with particular countries....

The goal of the project was to comparatively analyse TSD chapters in trade agreements concluded by the EU in 2010-2020, pointing out common elements and differences. The analysis will let us critically explore what the reasons for those differences may be (e.g., the course of negotiations, economic dependency, trade partners’ level of development) and whether the EU is consistent in its sustainability requirements set towards its trade partners. It will also allow us to depict the current tendencies in the way how such TSD chapters are shaped by the EU in comparison with the global trends. The comparative analysis of the EU TSD chapters was conducted by the researcher qualitatively and quantitatively with the use of software (MAXQDA 2022).

The research parses the interests advanced by EU agreements..
© Cyprian Liske; used with permission.

The Biden administration lately has redoubled the U.S. commitment to the developing world, announcing at a December summit, for key example, an investment of $55bn in Africa over the next three years.

Development aid is often viewed skeptically by American taxpayers. That's understandable when the homeland is plagued by homelessness and financial insecurity. Isolationism streaks run through both libertarian and conservative ideologies, evidenced lately by Republican skepticism even of aid to Ukraine. But development aid can be justified with reference simultaneously to socioeconomic benevolence and to the donor's national security, thus, appealing to priorities both liberal and conservative.

Literal signs of Chinese investment are ubiquitous throughout Africa, as here,
in the rural community d'Oukout in the Casamance region of Senegal, 2020.
RJ Peltz-Steele CC BY-NC-SA 4.0

The United States has a lot of catching up to do. With hotly debated motive, China has invested heavily in the developing world, near and far from its borders. Chinese presence in Africa is ubiquitous, from massive infrastructure projects such as ports and bridges to telecommunication access in the remotest of villages. Russia, too, has lately gone all-in on Africa: a "charm offensive," researcher Joseph Siegle wrote last year, and "[t]he reasons aren't pretty."

Incorporating sustainable development into trade agreements allows western powers to facilitate development goals at less cost than direct investment, and even with potential gains through free trade. There's still a lower-common-denominator problem when competing against proffered Chinese and Russian agreements that attach browbeating strings only on the back end. But access to Western markets brings some incentive to the table.

A practicing lawyer and legal translator, Liske is pursuing his doctorate on the nexus between sustainable development and international trade law in the context of EU external policy. He graduated in law from Jagiellonian University and in business linguistics from the Tischner European University, both in Kraków, Poland, and both with distinction. He also is an alumnus of the American Law Program of the Columbus School of Law of the Catholic University of America, and of the English Law and Legal Methods International Summer Programme of the University of Cambridge.

Ukraine Bar Association soldiers on

Lawyers have never stopped work in Ukraine, and the bar has been a catalyst in the development of democracy there, I learned today at a presentation of the Federalist Society.

Gvozdiy via Zoom from Kyiv today.

Via Zoom from Kyiv, Dr. Valentyn Gvozdiy, vice president of the Ukraine Bar Association, joined the Federalist Society International and National Security Practice Group to talk about the evolution of the profession in Ukraine and the role of lawyers in the present war. Dr. George Bogden interviewed Gvozdiy.

The talk came on the heels of news of the firing of a slate of top Ukrainian government officials in a corruption scandal. Gvozdiy addressed that developing story, too, in response to questions.

After the independence of Ukraine from the Soviet Union in 1991, the legislature adopted a "Law on the Bar," in 1992, Gvozdiy recounted. The enactment liberated the bar from "complete state control," but instituted only "quasi self-governance."

Ukraine had long looked to join the European community of nations, and work began promptly after independence to move the country in that direction. A key plank in the platform of European standards, Gvozdiy explained, is the existence of an independent bar. A 1995 resolution in the Council of Europe provided an incentive, recommending the organization of Ukrainian lawyers. The recommendation later became a precondition of the landmark Ukraine-EU association agreement in 2014.

Formal progress was long stalled by the very conflict that animates the present war. The fledgling Ukrainian state was weak, and political leaders were susceptible to corruption by easterly interests. Like popular opinion and the commercial sector, the developing bar leaned westward. By the time Donetsk Oblast-born Viktor Yanukovych claimed the presidency in 2010, to the dismay of the United States, the Russian-leaning leader was walking a tightrope that could not hold. Katya Gorchinskaya explained for Eurasianet:

The catalyst for the Yanukovych administration’s downfall was Ukraine’s stop-and-start efforts to sign an association agreement with the European Union. By late 2013, a majority of the population backed a draft agreement. But the pact to draw Ukraine closer to the EU placed Yanukovych in a tough situation. The treaty would open the way for substantial EU economic assistance and other perks, such as visa-free travel to Europe for Ukrainian citizens. But it would also mandate compliance with transparency and accountability provisions that gave Yanukovych and his associates reason to pause. In addition, Russia, the Ukrainian president’s main foreign patron, was steadfastly against seeing Ukraine take even the tiniest step toward Europe.

Amid the push and pull, Parliament coughed up landmark legislation in 2012 that established the Ukraine Bar Association as fully self-governing. Two years later, the Maidan Revolution deposed Yanukovych, Ukraine and the EU concluded the association agreement, and Russia invaded Crimea.

"'An obstacle is often a stepping stone,'" Gvozdiy said of Yanukovych, invoking a maxim usually attributed to U.S. Revolutionary War Colonel William Prescott. "The former president is not only not popular in Ukraine, he is the worst person we can imagine in our recent political history."

The recent ouster of top Ukrainian officials amid a corruption scandal has unsettled supporters of Ukraine with fear that the Zelensky Administration looks unstable. The news broke at a sensitive time, as the Biden Administration is navigating German reluctance to provide advanced tanks to Ukraine and skepticism over military investment in Ukraine from House Republicans. Meanwhile, Joanna Kakissis explained for NPR, Putin will seize on the news to bolster his characterization of Ukraine as a western puppet and threat to Russian security, incompetent in purported independence without Russian intervention.

In fact, the ouster is a good sign for Ukraine and should bolster western support, Gvozdiy said. Zelensky is signaling to Ukrainians and the world that contemporary Ukraine has "complete intolerance to the corruption."

Formerly, politicians robbed public coffers, and any court order to halt corruption was unenforceable, he said. The ouster now demonstrates Ukraine's remarkable progress in only a few years.

Yet in the present war, the bar is among democratic institutions fighting for survival, Gvozdiy said. The bar "would wither and absolutely disappear under Russian law."

Ukrainian advocates have "never stopped practicing law during the war," Gvozdiy said. Their work has included the defense of prisoners of war, if often to the chagrin of Ukrainians. (Other members of the legal community, such as prosecutors and judges, are busy too, for example, collecting evidence of war crimes. They are law-educated, but, unlike advocates, not members of the bar, as Ukraine follows a bar model in the European civil law tradition.)

Upholding the rule of law is the lawyer's constitutional obligation, Gvozdiy said. "We're not defending their crimes," he said of the POWs. "We defend their human rights."

One program attendee asked what American lawyers can do to help. Relayed by Bogden, the questioner expressed frustration that we don't have on-the-ground skills with obvious application, like other professionals have. 

I often have shared this frustration. We can't charge to the rescue like healthcare workers, nor mission like clergy. Even for pro bono projects at ABA conferences in the United States, I've picked up litter and organized dogs for vaccination, but I've never been asked to use my skills as a lawyer.

Gvozdiy's response was revealing, but not gratifying. Ukrainian lawyers need not just financial support, he said, but mental health support.

"We need professionals who can help us in a professional way to understand better how we need to behave and work and combine war with the practice of law," he explained. "We need training ... which will teach us how to react and how to reflect, how to communicate, how to live in peace with yourself and with all this pressure as a professional."

I'm not sure we're well stocked in the United States with experts in practicing law in a war zone. But when the conflict finally comes to an end in Ukraine, I know where we can find some.

Invasion of Ukraine marks six months; Russian propaganda flows despite court OK of EU media ban

#IStandWithUkraine

On July 27, the European Union (EU) General Court upheld a continental broadcast ban on Russia Today (RT).

The EU Council promulgated the ban in March 2022. The Council accused the Russian Federation of channeling propaganda through Russian-funded but purportedly "autonomous" RT in furtherance of a "strategy of destabilisation" of European countries by "gravely distorting and manipulating facts."

The regulation asserted that "propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions."  RT agents are allowed to continue reporting in the EU through research and interviews.

By "broadcast," the regulation is not talking only airwaves. The ban purports to apply across media outlets: "cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." 

I'm Team Ukraine, but the broadcast ban struck me as a curious development. It sets a troubling "kill the messenger" precedent and seems to conclude that the John Stuart Mill "truth will out" premise is hifalutin hooey.

I'm actually OK with that conclusion. When I teach free speech to students in tort, constitutional, or information law classes, I make a point of demonstrating the many flaws of marketplace theory in the real world. But closing the book on the theory as a matter of supranational regulation is an unsettling further step.

Similarly, it must be conceded that war propaganda is efficacious, notwithstanding its truth or falsity. Research and experience have confirmed that concession time and again since Edward Bernays published his classic treatment, Propaganda, in 1928. I read Bernays for a seminar in journalism school in the wake of the fall of the Berlin Wall. That study first interested me to the confounding problem of expressive liberties in wartime. 

In its July 27 judgment, the Grand Chamber of the General Court navigated these murky waters to conclude that the broadcast ban justifiably impinged on the freedom of expression. In the challenge by RT France, the Council adduced evidence to satisfy the court that RT was in fact a mouthpiece for Russian antagonism to European security. Conducting the necessity and proportionality analysis of European free speech law, long developed by the European Court of Human Rights, the general court concluded that the ban on RT appropriately furthered the twin aims of preserving order in the EU and abating the attack on Ukraine.

The court took pains to describe the RT ban consistently as temporary and to emphasize the context of Russian military aggression, thus signaling that the ruling is grounded heavily in extraordinary circumstances and has limited precedential value.

For therein lies the hazard of effectively suspending civil liberties in a time of exigency but undeclared war. Western EU ministers must be mindful that their critical populist adversaries in Hungary and Poland have restricted media freedom in the name of public order. Proceed down the slippery slope: Should we ban World Cup 2022 coverage by Qatar-funded Al Jazeera?

Characteristically, Russia answered the EU court ruling with a threat of retaliatory restrictions on western media in Russia. But on both sides, media bans might be so much posturing anyway.

RT.com via VPN based in Dublin

The actual efficacy of the ban is doubtful, if for no other reason than the internet's famous resilience to censorship. In a study published in July, the Institute for Strategic Dialogue found that RT content was still reaching European consumers through alternative domain names and mirror websites.

It might not be even that difficult to find RT. Using my Dublin-based VPN, I just now accessed RT.com directly and through a Google.ie search without impediment.

Today, August 24, marks six months since the invasion. The International Law Section of the American Bar Association (April) is organizing a social media campaign to maintain the visibility of the war in Ukraine. Lawyers are asked to post the Ukraine flag on LinkedIn and Twitter with the hashtag #IStandWithUkraine and tags @American Bar Association International Law Section and @Ukrainian Bar Association on LinkedIn and @ABAInternatl and @Association_UBA on Twitter.

First Amendment advocate counsels caution, but doesn't rebuff, American right to be forgotten

Gene Policinski, Freedom Forum Senior Fellow for the First Amendment, published an op-ed last week for the "First Five" blog in which he counseled caution, but did not gainsay, newsroom "fresh start," or "right to be forgotten" (RTBF), programs.

Motivated in part by European notions of personal data protection, or informational privacy, especially RTBF, fresh start programs give persons covered in past news an opportunity to apply for the erasure of their coverage from online archives.  For NPR in February, David Folkenflik and Claire Miller reported on trending fresh start programs at major U.S. news outlets, such as The Boston Globe, "Revisiting the Past for a Better Future."  The NPR stories observed that these programs have come about in part because of European legal norms, even for newspapers beyond the reach of European legal jurisdiction.

In 2013, I wrote in a law review article that Americans' expectations of privacy, including RTBF, are in fact consonant with evolving European norms, but American law has been slow to keep pace.  The twin notions of finite punishment for past wrongs and of a second chance for persons who have paid their dues are quintessentially American, I wrote in a Washington Post op-ed in 2014.  Those values are reflected, for example, in Eighth Amendment jurisprudence and the Ban the Box campaign.

A prohibitive challenge to RTBF norms in the United States has been the First Amendment, which generally prohibits regulation of the republication of lawfully obtained and truthful information.  Sometimes for better and sometimes for worse, the free-speech absolutist bent of the First Amendment contrasts with a more flexible European approach to rights balancing.  Nothing about the First Amendment, however, precludes a private journalistic enterprise, such as the Globe, from erasing content voluntarily.

Like RTBF itself, fresh start programs have been criticized by free speech and mass communication scholars.  They remind us that journalism is the "first rough draft of history."  Tinkering with archives therefore vests private actors with a weighty, not to mention expensive, responsibility on behalf of the public.  Fresh start advocates point out that this work is not dissimilar to the exercise of news judgment in the first instance.  But the perspective problem is not eliminated by time.  There is no way to be sure that our present-day second-guessing of the historical record is more fair and objective than the original judgment, nor sufficiently preservationist for the future.

Old Slave Mart Museum, Charleston, S.C.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Just last week, I visited the Old Slave Mart Museum and other historical sites in Charleston, S.C.  To my eyes, the casual treatment of persons as property in the content of news media in times of slavery, as well as racism evident in later media during Jim Crow, is evidence of horrific injustice and a powerful reminder not to take for granted that one's present vision is free of bias.  What if that record had been erased, rather than preserved?  Could Henry Louis Gates Jr.'s "Finding Your Roots" have identified Ben Affleck's slave-owning ancestor (NPR) if history were redacted?

At the same time, I am an advocate for RTBF in some form, just as I support Ban the Box.  I am devoted to the First Amendment.  But digital media, that is, an internet that "never forgets," confronts our society with a new and qualitatively different challenge from any we have faced before.  Viktor Mayer-Schönberger well described in his 2011 book, Delete: The Virtue of Forgetting in the Digital Age, how forgetting, in addition to remembering, is an essential and well evolved part of human social culture.  A failure to forget is an existential threat.

Journalist and academic Deborah L. Dwyer has developed a useful and thought-provoking set of fresh start resources for journalists at her website, Unpublishing the News, cited by Policisnki.  I don't pretend to know whether fresh start, or European RTBF, or some other approach is the best solution, nor whether any of these models will stand the test of time.  I do believe that feeling our way forward is fascinating and necessary.

The op-ed is Gene Policinski, Perspective: News Outlets Need Caution in Offering a "Fresh Start," Freedom Forum (May 26, 2021).