Descendants of slaves imaged in daguerreotypes may sue Harvard for emotional distress, high court rules

Harvard Yard
(Daderot. CC BY-SA 3.0 via Wikimedia Commons)

The Lanier family, whose enslaved ancestors were stripped and forcibly photographed in 1850, may allege reckless infliction of emotional distress against Harvard, the Massachusetts Supreme Judicial Court ruled in June.

I wrote about this case and its heated oral argument in November, with links to sources elucidating the context. The court's decision to allow an emotional distress claim is momentous, even while the court dismissed claims in property law and tortious conversion.

Read more about the latest disposition at The Harvard Crimson and CBS News.

The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (Mass. June 23, 2022). Justice Scott Kafker wrote the opinion of the court.

Chief Justice Kimberly S. Budd wrote separately in concurrence "to emphasize that the alleged conduct of the defendants (collectively, Harvard) here clearly transgressed moral standards broadly adopted by archival institutions."

Justice Elspeth B. Cypher wrote an intriguing additional concurrence in which she proposed that the plaintiffs should be afforded a novel common law cause of action, besides infliction of emotional distress, upon the unprecedented facts of the instant case.

Justices test Harvard property claims, as civil rights attorney pleads passionately for return of slave images

Lanier's story in a 2020 short by Connecticut Public

This morning the Massachusetts Supreme Judicial Court heard oral arguments in the case of Lanier v. Harvard, in which Tamara Lanier seeks to recover daguerreotypes of her enslaved ancestors, father and daughter Renty and Delia Taylor, taken on a South Carolina plantation in 1850.

The case is mostly about property and procedural law, namely, replevin and laches, though counsel for Lanier described the initial possession of the images as tortious conversion.  The images were taken and "used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism," the Center for Art Law explained. "Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation."

Harvard's position depends on a narrow view of the case as a simple question of property ownership.  As the saying goes, "possession is nine tenths of the law."  Harvard bolsters its position with the argument that has become familiar from museums in our age in which returning artifacts to the once colonized, developing world is increasingly common, that the public will benefit from, and the horrors of slavery will be exposed by, public presentation of the daguerreotypes in a scholarly context.

The Lanier family articulates a broader theory of the case.  Civil rights attorney Ben Crump compared the sought-after return of the daguerreotypes to return of the possessions of Japanese families after World War II internment and Jewish families after the Holocaust, the latter including The Woman in Gold. 

The Lanier side divided its argument between two attorneys.  Crump opened the second half with a powerful statement of what he described as "three historical references" to frame the case from the Lanier perspective.  First, he said:

The fact that I stand before you as a free man and not a slave is a testament to someone's decision to change the course of human history.  It is a testament to our legal system, a testament that was led by the courts here in Massachusetts when Chief Justice William Cushing in 1783 judicially abolished slavery in the Quock Walker case.  And it is the reason why he is so often quoted even 250 years later with ... the idea of slavery as inconsistent with our conduct and our Constitution.

Second, Crump paraphrased Frederick Douglass, that

the genealogical trees of black people do not flourish as a result of slavery.  In essence what he was saying is that what slavery did was destroy the African-American family connection to its ancestral lineage.  But this historical case has the ability not only to recognize such lineage but [to recognize such lineage in] Ms. Linear and her family.

Third, Crump said:

This case presents a case study of Massachusetts's complicated history with slavery.  On one hand it has profited mightily from the cotton trade.  Its most powerful institution, Harvard University, has ties with slavery that date back centuries.  In fact the textile factories that were the largest donors of the university helped to build capitalistic empires on the backs of slave empires.  In fact the institution of Harvard and the institution of slavery were born in this country a mere 17 years apart.  On the other hand, Massachusetts is also the home of John Adams, and it is not lost on me or Ms. Lanier that we are in the John Adams Courthouse.  John Adams said slavery is the great and foul stain upon the North American Union.

Justices Kafker, Wendlandt, and Cypher actively and almost exclusively interrogated the advocates.  Based on the colloquy, the smart money in the case is on Lanier.  Kafker and Wendlandt tied up Harvard advocate Anton Metlitsky mostly in civil procedure.  The justices seemed to be testing out how they might navigate procedural challenges to reach a ruling in Lanier's favor.

The justices did challenge Crump and co-counsel Joshua Koskoff on First Amendment issues.  In an amicus brief in the case, the Massachusetts Newspaper Publishers Association warned against a ruling that would give the subjects of photos an ownership interest in the images, for fear that First Amendment-protected news coverage would be jeopardized.  It's interesting to see that concern raised in this context, because the point also marks division between the United States and Europe over data privacy rights in photographs of persons in public places.

The probing revealed that counsel for Lanier would render the case large or small, depending on their needs.  Taming the case back to mere property dispute, Koskoff called "First Amendment implications" in the case "a strawman."  The First Amendment is not implicated in a case of conversion, he argued, any more than the Second Amendment is implicated when someone is shot and killed.

Justice Kafker challenged Koskoff on whether return of the pictures would make them inaccessible to scholars and, as Harvard contends, thus unable to educate the public in the way that Holocaust images have.  Koskoff stuck to his guns, responding that it was up to Renty and Delia, and thus up to the Lanier family, whether the images would be used for public education.  The ends don't justify the means, he said.

In a related vein, Justice Wendlandt questioned Crump whether the outcome would be the same if the images had been discovered "in a drawer of the Boston Globe."  Crump ducked the question.  "This was a scientific experiment with black people being used as lab rats," he responded potently but inappositely, a "crime against humanity" and a crime under Massachusetts law.

Wendlandt reiterated her question, and still Crump ducked it, arguing that the hypothetical was not the facts of the case.  Wendlandt then restated Crump's response back to him as a "yes," that it makes no difference who claims ownership of the daguerreotypes today.  Crump picked up the thread, arguing analogy to the removal of The Woman in Gold from public display in Austria.

"This court has the ability to finally free Renty and Delia from bondage," Crump concluded.  "We are beseeching this court not to condemn them in death to the property of Harvard for all eternity."

The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (argued Nov. 1, 2021).  Briefs are posted on the docket.  The oral argument will be posted at the Suffolk Law archive.  The Harvard Crimson published a thorough piece on the case in March.  A retired probation officer in Connecticut, Tamara Lanier tells her story at the website of the "Harvard Coalition to Free Renty"; there also is a documentary film by David Grubin.

[UPDATE, Nov. 3:] 

The oral argument is now posted in the Suffolk archive.  Also, Tamara Lanier posted a 15-minute clip of Crump's argument on her YouTube page today (below).

I add that Crump's argument, while quotable, was not as substantively important as Koskoff's.  I rewatched the oral argument today.  It remains clear to me that the justices, at least those who participated in the colloquy, are searching for a way to have Lanier win, but are struggling to find a legal rationale that matches the policy rationale.

In a telling exchange out of the gate, the justices pressed Koskoff for a rationale to convert his theory of tortious conversion in 1850, a premise the justices seemed willing to accept, into a property right in 2021.  Koskoff responded by describing tort law as an umbrella and property law within it, reasoning that a tortfeasor is not allowed to keep the proceeds of a tort.

I find the reasoning sound, notwithstanding the doctrine of laches, but I'm not sure the semantics and metaphor were quite right.  I have never understood tort law to dictate the outcome Koskoff describes; rather, I regard the proceeds of a tort as forfeit in equity.  Well recognizing how easy it is to Monday morning quarterback, I wonder that Koskoff might have prepared a better argument grounded in equity rather than tort law.

Anyway, it will take some legal gymnastics for the court to reach the result that at least three justices seemed to desire.

Death case against Robinhood tests common law disfavor for liability upon negligence leading to suicide

U.S. CFPB images

The family of a 20-year-old college student who committed suicide has sued the lately notorious Robinhood financial services company.

Filed yesterday in California, the suit has been reported widely (e.g., Fortune), as was the death in the lockdown summer of 2020 (e.g., Financial Times, Forbes).  I feel compelled to mention the case here because, in tragic coincidence, my Torts II class covered suicide in causation just last night.  Hat tip to law student Paul McAlarney, who spied the story at CNBC.  Courthouse News has the complaint. 

In the instant case, decedent Alex Kearns, a sophomore at the University of Nebraska–Lincoln, ran in front of a train while believing mistakenly that he had lost about $730,000 in investments through Robinhood.  The service emailed him to demand a deposit of $178,000 to rectify his negative balance, Fortune explained, without clarifying that he had options in his account that could more than cover the deposit.

I am no investment wiz, but McAlarney said that a representation of negative balance like this is normal in margin trading, and that understanding one's actual position can be "tricky" and "super confusing" for beginners.  Kearns tried three times to reach Robinhood customer service, to no avail; we all know how that goes.

Historically, common law was not friendly to claims of tort liability against actors whose negligence was alleged to have precipitated suicide.  The abrupt and powerfully intentional act of suicide was, and usually still is, regarded as a supervening cause of loss, breaking the chain of legal causation between injury and the conduct of actors earlier in time, and freeing them of legal responsibility.  The rule arose naturally from the social stigma that attached to suicide historically, and, relatedly, the criminalization of the act.

In recent decades, however, the historic common law approach softened.  Understanding of mental health issues diminished the stigmatization of suicide and pushed a wave of decriminalization.  Insofar as suicide remains criminalized or regulated as a civil offense, the rationale today is more often to facilitate mental health intervention than to deter or punish.  Accordingly, courts have evidenced increased willingness to see negligence as a legally cognizable cause in the aggravation of mental illness.

I wrote here on the blog about two cases in the last three years arising in higher education in Massachusetts.  In a case against MIT, in 2018, the Supreme Judicial Court (SJC) held that the defendant university could not be held liable in the suicide of a student, Nguyen, for failure of duty.  However, the Court wrote that it was not rejecting wholesale a university-to-student duty to prevent suicide; rather, on the facts, MIT could not have foreseen the tragedy.  Then in a case against Harvard, in 2019, the Superior Court followed the SJC's lead and refused to dismiss a liability claim in the suicide of a student, Luke Tang (documentary film).  That case is now in discovery (search Middlesex County case no. 1881CV02603).

The civil iteration of the Michelle Carter case, in which Carter, by text message, exhorted teen peer Roy Conrad to commit suicide, would have marked a profound test of the old common law rule, but was settled in 2019.  Pending in the Massachusetts legislature is a bill, "Conrad's Law," that would explicitly criminalize the facilitation of suicide.  Carter was convicted of involuntary manslaughter, and the SJC upheld the conviction as against a First Amendment challenge.  The U.S. Supreme Court denied certioari.

At the end of December, the Sixth Circuit affirmed denial of a Cincinnati school board's motion to dismiss a suit over a third grader's suicide precipitated by bullying.  Professor Alberto Bernabe wrote about the case for his Torts Blog and observed, as to proximate causation, "the court found that the boy’s suicide was plainly foreseeable, especially considering [that] the school’s guidelines on bullying include suicide as a risk."

Tragedy arising from investment losses is not new.  My torts casebook with Professor Marshall Shapo, in the chapter on attenuated duty and causation, noted a mass shooting and suicide by a day trader in 1999.  The Georgia Court of Appeals affirmed summary judgment for the shooter's former employers as against claims by victims.  The court wrote that "the issue of proximate cause is so plain, palpable, and indisputable as to demand summary judgment for the defendants."  The Kearns case relocates the risk to the private home and compounds the matter with investor inexpertise, changes wrought, for better and worse, by the electronic democratization of access to financial markets.

The case is Kearns v. Robinhood Financial LLC, No. 21CV375872 (Cal. Super. Ct. Santa Clara Cty. filed Feb. 8, 2021).

Court refuses to dismiss Harvard in student-suicide suit

The Massachuetts Superior Court, per Judge Michael D. Ricciuti, denied Harvard University's motion to dismiss a negligence claim brought by the parent of a student, Luke Tang, who committed suicide on campus in 2015.  The case comes in the wake of a 2018 Massachusetts Supreme Judicial Court (SJC) decision refusing to allow the Massachusetts Institute of Technology (MIT) to be held responsible for a student's suicide.

Luke Tang lived at Harvard's Lowell House.  (Photo by Carrie Anderson
CC BY-SA 2.0)

In the 2015 case, Nguyen v. MIT, discussed here, the SJC ruled that the university-student relationship does not support a duty in tort law akin to the custodial relationship between a parent and child, or custodian and dependent.  That ruling was consistent with historic and enduring common law norms, which hold that a person's intentional suicide, in some jurisdictions a crime, interrupts the chain of duty and causation that would link the death to any earlier-in-time carelessness.

However, the SJC left open the possibility that a university could be responsible for a suicide if the decedent had been in a "special relationship" with the defendant.  "Special relationship" is a term of art in tort law, referring to the very relationships in which public policy supports a person's expectation of care from another.

In the instant case, Tang v. Harvard College, plaintiff seeks to pin liability on Harvard and its employees through that very allowance for special relationships.  As reported by the Harvard Crimson last year, Tang was known to Harvard as a suicide risk.  Tang had been transported to a hospital after a suicide attempt freshman year.  When he returned to school, he signed an agreement with Harvard that he would stay in counseling with Harvard mental health staff.  Returning to school after the summer, though, Tang failed to keep his appointments, and the complaint alleges that Harvard failed to follow up.

Special relationships in tort law can be created when a medical professional undertakes care of a patient, or when any person voluntarily takes on the responsibility of caring for another, which can be signified by action or contract.  Tang's theory of special relationship resonates in those ways, considering the counseling function of Harvard staff and the agreement that Tang signed with Harvard.

Superior Court Justice Michael D. Ricciuti found sufficient basis to distinguish Nguyen.  Justice Ricciuti wrote, "Harvard's argument to dismiss this case reduces Nguyen to a check-box, and that once a university checks one of the three boxes—a protocol, or if there is none, clinical care, or if that is refused, reaching an emergency contact—its duty ends regardless of how well or poorly the university fulfils its duty. That interpretation cannot be correct."

Justice Ricciuti is himself a 1984 graduate of Harvard Law.  A native of Quincy, Massachusetts, he was in private practice and served as federal prosecutor before being confirmed to the bench.

The case is Tang v. President and Fellows of Harvard College, No. 18-2603 (Mass. Super. Ct. Sept. 9, 2019).  Hat tip @ Massachusetts Lawyers Weekly (pay wall).  Read more at The Harvard Crimson.  For a short time, I will park a copy of Justice Ricciuti's ruling here.

A documentary film about Luke Tang, Looking for Luke, seeks to raise awareness of mental health problems affecting young people.  Here is the trailer.

Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass

Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass.  That probably should not have surprised me, given his birthright in Massachusetts aristocracy.  And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law.  Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.

The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.  That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919.  In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act.  Then in fall 1919, Holmes suddenly turns up in dissent to further convictions.  He used almost the same language, the same rules that he had authored and joined earlier in the year.  But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.

Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time.  Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.

So what happened to Holmes in the summer of 1919?  To answer that question, Healy takes the reader on a spellbinding journey into the social and political dynamics of America’s intellectual class—and last survivors of the Civil War—as they struggled to maneuver the country in a new world order shaped by the ravages of an unprecedented war.

There is an apocryphal answer to the 1919 question.  The free speech analysis that Holmes and Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition advanced by Judge Billings Learned Hand as trial judge in a 1917 case in federal court in New York.  Hand and Holmes knew one another, if not well, and their contrasting judicial philosophies, co-existing in era, frequently prompt comparison by scholars.  So it was once speculated that perhaps Holmes had met with Hand in precisely that summer.  It’s the kind of story that would make an exciting two-man show for the law-and-theater crowd.

As Healy tells it, Hand did play a role, if less direct, in reshaping Holmes’s thinking.  Another figure emerges as a key intermediary in Healy’s narrative, British political scientist Harold Laski.  Laski did interact with Holmes quite a bit, before, during, and after the summer of 1919, and his influence is plain.  Of course the full story is a good deal more complex, and Healy constructs it masterfully.  More than that, I won’t spoil.  Read the book.

Holmes in 1861 daguerreotype.

I was struck by three points of the story, and they all relate to Holmes not really being the paragon of personhood I wish he were.

First, Holmes was an elitist.  He read 50 books in the summer of 1919, Healy recounts.  He was always eager to immerse himself in the rich intellectual legacy of the Greek philosophers.  He was much less eager to take up Justice Brandeis’s invitation to visit textile mills in the summer of 1919 to witness for himself the unsettling state of labor and labor strikes in post-war America.  On the one hand, it’s fabulous that Milton’s Areopagitica and Mill’s On Liberty were part of the deep knowledge of the man who shaped modern free speech law.  On the other hand, it’s hard to tell whether he really understood the implications of dissent on the ground.

As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma unfolding in legal education today.  Law schools are entranced with experiential education and are dumping jurisprudence in an effort to get students more time in practice training.  Ian Holloway and Steven Friedland recently located legal education in tension between a “grand university” model and a “Hessian craft guild" model.  Holmes was all grand university, and that is not ideal.  But modern free speech would not be what it is today if we were depending on the Hessian craft guild to build it.  It’s really important to have room for both.

Second, Holmes was a little slow on the uptake, even on free speech doctrine.  There was in fact correspondence between Hand and Holmes, though it pre-dated 1919.  And Healy reports how Holmes just missed the point.  Had he gotten the point, he might have started dissenting a bit earlier, and maybe even saved some demonstrators and harmless Bolsheviks from long prison terms.

A good example of Holmes’s fumbling start is the “clear and present danger” doctrine, which was born before the summer of 1919, but only later acquired its more rights-protective meaning.  “Clear and present” was indicative of Hand’s influence, suggesting as it did what today we might call a behavioral economic approach to legal reasoning.  But Holmes rather blew it, because his use of the test was highly subjective.  He gave the test no meaning, so allowed it to be perverted by the fever of the Red Scare.  Later evolution of the test would reveal a dynamic relationship between variables such as the “imminence” and “gravity” of the danger.  That more sophisticated analysis prophylactically protects speech that might be subversive, but poses no real threat, and also allows free speech doctrine to realize its critical anti-majoritarian function.  Hand understood that in 1917.  It took Holmes quite a while to work it out.

Third, Holmes was not a friend you could count on.  Amid the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the Harvard Law faculty, suffered virulent persecution for their politics and identities.  The “Red Summer” was the very summer of 1919.  Both men were sympathetic with labor, and both were labeled Bolsheviks.  Frankfurter, who was Jewish and Austrian, was further denigrated by post-war anti-Semitic and anti-German sentiments.  Critics of Laski, a British national, demanded his expulsion from teaching at Harvard Law.  Imagine!—persecution on a law faculty based on the politically correct zeitgeist.  How last century.

To be fair, Holmes and Harvard Law Dean Roscoe Pound did take steps to defend Laski and Frankfurter.  But their efforts, especially Holmes’s, were lackluster.  Despite the loving affection that Holmes professed for like-a-son Laski in private correspondence, Holmes resisted early entreaties to help.  Holmes was afraid of offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom Holmes regarded as friends.  Holmes preferred to distance himself from the conflict and retreat to the sanctified solitude of his private library.  The great dissenter, a Civil War veteran wounded in action, whose famous diction dominated doctrinal opponents, shrank from moral defense of his friends, lest the comforts of his social and economic status be placed in jeopardy.   

Huh.

An honorable biographer, Healy is straightforward and matter of fact when it comes to Holmes the man.  Holmes was a voracious reader, brilliant thinker, and surely was one of the greatest jurists, perhaps the greatest jurist, in American history.  Civil rights as we know it today, and much of human rights as it is known in the world today, owes a debt to Holmes.

Holmes also cheated on his wife.

“If anyone, then, knows the good they ought to do and doesn’t do it, it is sin for them.”  James 4:17.

'Intentional Investment in Abnormally Dangerous Activities'? Not today, Mass. App. says in climate-change suit

A Massachusetts appeals panel affirmed dismissal in a climate change-related suit by Harvard students against the university.

Almost two years ago, in November 2014, a coalition of Harvard students sued the university over climate change.  The suit calls to mind the style of greenhouse-gas litigation that resulted in a plaintiff-favorable court order in the Netherlands in 2015 (NYT).  But the plaintiffs here pursued a more time-honored if indirect strategy of social protest, seeking to compel divestment, that is, to compel Harvard to divest its charitable fund investments from fossil fuel-friendly business.  Specifically, the targets for divestment were defined in the complaint as "companies whose primary business activities involve the extraction and sale of prehistoric, or non-renewable, carbon-based fuels."

The plaintiffs advanced two theories, one the "Mismanagement of Charitable Funds" and two--this is the goody--"Intentional Investment in Abnormally Dangerous Activities."  Should we call it "IIADA"?

Do you know that giddy feeling you get in your belly when you hear the name of a new tort for the first time?  It's like when you first heard about umami.

The plaintiffs articulated a case for "abnormally dangerous activities," naturally with roots in strict liability for abnormally dangerous activities, looking to the severity of harm with a shade of social balancing:

Fossil fuel companies' business activities are abnormally dangerous because they inevitably contribute to climate change, causing serious harm to Plaintiffs Future Generations' persons and property, . . . because this harm outweighs the value of fossil fuel companies' business activities by threatening the future habitability of the planet, . . . and because this harm is appreciably more serious and more irreparable than that created by comparable industries, making fossil fuel companies' business activities not a matter of common usage.

The inability to avert risk through the exercise of reasonable care is also a qualifying characteristic of strict liability for abnormally dangerous activities, and the plaintiffs adopted it. They alleged: "No amount of reasonable care by fossil fuel companies can substantially reduce the risk of such harm because doing so would require either curtailment of fossil fuel companies' own business activities or mitigation efforts by other parties that would likely lower demand for fossil fuel companies' products."

On culpability, though, the plaintiffs were content to go with something more than strict liability.  Not that they went all the way to full-on subjective intent.  The complaint alleged that "Defendants know with substantial certainty, or should know with substantial certainty, that . . . investments fund fossil fuel companies' business activities and . . . contribut[e] to climate change."  "Knowledge with substantial certainty" is the familiar only-slightly-watered-down cousin of pure intent, but "should know with substantial certainty" smacks of a somewhat less rigorous and objective inquiry.

(Wondering about Rule 11 issues?  Plaintiffs were pro se, not that that resolves the question.  I suppose, if the plaintiffs' motivation was principally political attention-getting, the defendants' had best avoid dragging things on in collateral proceedings.)

Alas, the courts did not take the bait.  The case failed for its rather massive standing problem, despite plaintiffs' valiant efforts to press for a special doctrine--vaguely reminiscent of public trust, which has been posited as a vehicle to get to climate-change standing in U.S. law.  No dice.

And the case failed because the courts didn't care for the new flavor of tort.  The appellate court observed of the proceedings below: "The judge noted that no court in any jurisdiction has ever recognized that tort, and in any event creating a new tort in the Commonwealth is the function of the Supreme Judicial Court or the Legislature."

Back to the tort test kitchen.

The case is Harvard Justice Climate Coalition v. President & Fellows of Harvard College, No. 15-P-905 (Mass. App. Ct. Oct. 6, 2016).