Mass. attorney board rushes to racialize, shun 'overseer,' ignores word's ancient, biblical usages

A proposal published for public comment would change the name of the Massachusetts Board of Bar Overseers to the "Board of Bar Oversight" to avoid connotations of slavery in the term "overseer."

The new name means the "BBO" will keep its popular initialism. The BBO was formed in 1974, so the "overseer" usage originated independently of the negative connotation. It seems what's changed in the last half century is sensitivity to language, for better and for worse.

Frederick Douglass
and grandson Joseph Douglass, 1894
Smithsonian NMAAHC

The BBO stated its reasoning:

The word "overseer" has a pernicious history in our country, tied inextricably to chattel slavery. On southern plantations, an overseer was the slaveowner's delegate in day-to-day governance, trusted to enforce order and obedience. Overseers were the most visible representatives of white supremacy. As defined in the Online Etymology Dictionary, an overseer was "one who has charge, under the owner or manager, of the work done on a plantation." In autobiographies by slaves such as Frederick Douglas [sic] and Solomon Northup ("Twelve Years a Slave"), overseers were described as heartless, brutal and cruel. They were an inevitable and indispensable product of an economy built on human chattel. As noted by University of Louisville president Neeli Bendapudi, "The term overseer is a racialized term. It hearkens back to American slavery and reminds us of the brutality of the conditions and treatment of black people during this time." We agree with this statement.

I don't. To "racialize" is "to give a racial character to: to categorize, marginalize, or regard according to race." I agree that Bendapudi racialized the term. The BBO did not, before now. But therein lies the power of a passive structure, "is ... racialized," allowing one to accuse without responsibility to prove.

The BBO moreover is almost irresponsibly selective in its sourcing. First, the Online Etymology Dictionary is a project of a Pennsylvania writer, Douglas Harper. It's good and interesting to read; I'm not meaning to denigrate Harper's labor of love. But I'm not sure any one person's internet project should be anyone else's first stop for denotation, especially in a legal context. The BBO's sourcing is on par at best with high-school-term-paper standards.

Second, "one who has charge ... of the work done on a plantation" is not exactly what the Online Etymology Dictionary says. Rather, here's the entry in full:

late 14c., "supervisor, superintendent, one who looks over," agent noun from oversee (v.). Specifically, "one who superintends workmen;" especially with reference to slavery, "one who has charge, under the owner or manager, of the work done on a plantation."

So it's not true, even in the source referenced, that "overseer" on its face is defined as, or means, a plantation supervisor. The meaning arises in the especial context of slavery.

Maybe I'm a little sensitive to the whole thing because I once served as an "overseer" in my church. The BBO doesn't mention that the word has any meaning outside of slavery, much less that it has ancient and Biblical origins.

Episkopos (ἐπίσκοπος) in Ancient Greek translates literally as onlooker, or overseer, and that's the word used in the Iliad, the Odyssey, and the Bible. Epi (ἐπί) is a preposition meaning on or upon, and skopos (σκοπός) means to watch or look intently. Skopos is used variously (and in the Iliad) to refer to a lookout, a guardian, or a spy or scout.

In Ancient Greece, an episkopos referred specifically to a kind of imperial agent sent by Athens to distant municipalities to make sure they paid their taxes (Balcer 1977). (An interesting point of historical-comparative legal studies is that having a highly functional tax system is a common feature of successful ancient civilizations, from the Greeks to the Aztecs.) 

In the Iliad (22:255), A.T. Murray translation, Homer refers to the gods as witness to an agreement, using episkopoi (ἐπίσκοποι), the plural, to refer back to the gods. Murray beefed up the translation to say "witnesses and guardians of our covenant," thus articulating the added connotation of safeguarding.

In the Odyssey, also the Murray translation, below, Homer used episkopos more abstractly to indicate a role of authority:

τὸν δ᾽ αὖτ᾽ Εὐρύαλος ἀπαμείβετο νείκεσέ τ᾽ ἄντην:
‘οὐ γάρ σ᾽ οὐδέ, ξεῖνε, δαήμονι φωτὶ ἐίσκω
160ἄθλων, οἷά τε πολλὰ μετ᾽ ἀνθρώποισι πέλονται,
ἀλλὰ τῷ, ὅς θ᾽ ἅμα νηὶ πολυκλήιδι θαμίζων,
ἀρχὸς ναυτάων οἵ τε πρηκτῆρες ἔασιν,
φόρτου τε μνήμων καὶ ἐπίσκοπος ᾖσιν ὁδαίων
κερδέων θ᾽ ἁρπαλέων: οὐδ᾽ ἀθλητῆρι ἔοικας. 

Then again Euryalus made answer and taunted him to his face: "Nay verily, stranger, for I do not liken thee to a man that is skilled in contests, such as abound among men, but to one who, faring to and fro with his benched ship, is a captain of sailors who are merchantmen, one who is mindful of his freight, and has charge of a home-borne cargo, and the gains of his greed. Thou dost not look like an athlete."

In none of several English versions of this passage did I find episkopos translated directly. Poetically inclined translators such as Murray carried over the subject "captain" with either a pronoun or an implied subject. "Captain" here is "ἀρχὸς," or "chief." So it looks like Homer saw ἀρχὸς and ἐπίσκοπος as functionally equivalent in this context.

The New Testament accordingly uses episkopos several times to refer to church leaders. Indeed, "bishop" in English derives from the Greek episkopos—episcopus in Latin and obispo in Spanish.

Shepherd in 1 Peter 2:25
© Saint Mary's Press, licensed for non-commercial use

The First Epistle of Peter (2:25) (NIV) uses episkopos abstractly, as a metaphor for Jesus: "For 'you were like sheep going astray,' but now you have returned to the Shepherd and Overseer of your souls" ("ἦτε γὰρ ὡς πρόβατα πλανώμενα· ἀλλ᾽ ἐπεστράφητε νῦν ἐπὶ τὸν ποιμένα καὶ ἐπίσκοπον τῶν ψυχῶν ὑμῶν").  

Other usages are more concrete. In Acts 20:28 (NIV), Paul admonishes disciples: "Keep watch over yourselves and all the flock of which the Holy Spirit has made you overseers. Be shepherds of the church of God, which he bought with his own blood" ("προσέχετε οὖν ἑαυτοῖς καὶ παντὶ τῷ ποιμνίῳ ἐν ᾧ ὑμᾶς τὸ πνεῦμα τὸ ἅγιον ἔθετο ἐπισκόπους ποιμαίνειν τὴν ἐκκλησίαν τοῦ θεοῦ ἣν περιεποιήσατο διὰ τοῦ ἰδίου αἵματος"). Similar usages appear in Philippians 1:1, 1 Timothy 3:2, 1 Titus 1:7, and Hebrews 13:17.

The BBO needs to be called out here for shoddy work (really, misspelling Frederick Douglass?) and results-oriented reasoning. The board is myopically intent on sacrificing a word on the pyre of cancel culture—a move indicative more of wanting to look righteous than of wanting to be righteous. I might rather, as a general rule, strive for education and enlightenment, at least as a first-order response.

Yet, as it happens, I agree with the BBO's conclusion and proposal. Despite the board's woke pandering, the risk is significant that "overseer" will import for some hearers a connotation that should be foreign to the board's role. For me, it's not about "racialization"; it's about relationship. 

When I moved to New England and started to learn the ropes of the local legal culture, I bristled at the term "Bar Overseers." To be fair to Massachusetts, I have had the same feeling in other jurisdictions about boards of attorney and judicial "discipline." 

"Overseer" and boy in Yazoo City, Miss., yarn mill, 1911.
U.S. Library of Congress

I fear that these words connote a top-down style of austere supervision, a system of the powerful and the powerless, that does not comport with a profession of mutually supportive equals (dare I say, a brethren, which is and should be gender encompassing). "Overseer" is suggestive of a dramatic power imbalance; the word was used not only in connection with slavery and plantations, but in the context of child labor in the early 20th century.

That doesn't mean that the time never comes when persistent or willful misconduct requires a firm response; the profession owes its highest duty to the public. But using terms such as "overseer" and "discipline" has the unintended consequence of encouraging officeholders to misunderstand their roles. Lawyering and judging are among jobs that endow persons with authority over others, whether through power, like policing, or through access to knowledge. Some people attracted to these jobs are prone to use, or abuse, their power for its own sake. Those same people might gravitate to a job such as "overseer" or arbiter of "discipline" for the wrong reasons.

I was more amenable to the term "overseer" in my church, because the biblical usage is, or should be, utterly alien to abuse of power. Similarly, a church speaks of spiritual "discipline" with only the affirmative connotation of accountability to God. As a church overseer, I felt the weight of guardianship in the term. Being an overseer was a stern reminder of my responsibilities to others and sometimes, too often, of my own duties and failures of spiritual discipline. Anyone truly called to church leadership is humbled by the call, not lured by empowerment.

Even so, when my board of overseers overhauled the church constitution, we changed to "elder" leadership. At the same time, we changed the governance model. We studied and prayed over many church governance models. The Bible says remarkably little about specifics, so the art of church governance becomes part spiritual endeavor and part sociological experiment. We designed a variation on governance that we believed would work well for our congregation, better, at least, than what we had in an aging constitution. 

"Elder" aligned better with our new model, which emphasizes biblical knowledge, experience, and mentorship. There's nothing technically deficient in the term "overseer" for our new model, and we were not afraid of "racialization." It was just semantics. Different Christian writers have committed to different terms, so those terms now carry connotations of the writers' observations and recommendations.

So connotation, like context, matters. And given the connotation of barbarism that even sometimes attaches to "overseer," especially in secular contexts, the BBO's modest proposal is sensible.

I simply would prefer that the proposal were backed by an evenhanded and honest analysis. Then we might be able to say, more modestly, that we are just pushing pause on "overseer": giving its deplorable connotation time to fade in our social consciousness, rather than committing a word of ancient import to the dustbin because of a modern-era abomination.

Book supports legal privilege for undercover reporting

Truth and Transparency, a recent book by Professors Alan K. Chen and Justin Marceau, is a comprehensive and gratifying tour of the history and law of undercover reporting.

Chen and Marceau teach at the Sturm College of Law at Denver University and have especial expertise in constitutional law, and respectively in public interest law and animal law. In their co-authorship, they examine the social phenomenon of undercover reporting that lies at the intersection of journalism, tort law, and the First Amendment—and often animal law, too.

I know Chen best for his work in opposing ag gag laws: statutes designed to stop and punish journalists, activists, and whistleblowers from investigating and revealing wrongful conduct and animal cruelty in the agricultural industry, especially by way of undercover video recording. Chen has worked against ag gag in Idaho, Iowa, Kansas, and Utah. I've been privileged to sign on to some of the amicus briefs he has coordinated.

Chen and Marceau leave no stone unturned. I was intrigued especially to read about the history of undercover reporting in the United States, the evolution of undercover reporting in its treatment in journalism ethics, and the thorough explication of undercover reporting in tort and First Amendment law.

Upton Sinclair's 1905 The Jungle, a novel based on real-life undercover reporting in the meatpacking industry, was my mind's go-to on the early history of the practice. Apropos of the present Women's History Month, however, it was female reporters such as Nellie Bly who carved out a niche for undercover reporting in the popular imagination in the late 19th century and deserve the most credit for pioneering the genre.

Bly, born Elizabeth Jane Cochran, famously had herself committed to a deplorable New York mental institution in 1887 for 10 days before a New York World lawyer secured her release, per prearrangement. Chen and Marceau recount the stories of Bly and other so-called "girl stunt reporters." They trace the history even further, as well, to antebellum abolitionists determined to expose the horrors of slavery.

Chen and Marceau explore a range of treatments of undercover reporting in journalism ethics, including the qualified permissiveness of the 1996 Code of Ethics of the Society of Professional Journalists, preserved in the more recent 2014 iteration. They observe as well the almost complete prohibition on the practice at National Public Radio, where journalists may engage in deception only when necessary to protect themselves in a conflict zone, and secret recordings may be used in only extraordinary circumstances.

A case that naturally arises throughout the book is the ABC News investigation of hygienic practices at Food Lion in the 1990s (at Reporters Committee). This case was contemporary with my university study of journalism, so was front and center in my class on journalism ethics. Whether or when journalists might engage in deception to get the story is a favorite point of discussion in journalism ethics class. The problem stratifies the need for public trust in journalism across the micro layers of people who are the subjects of stories and the macro layers of readers and the public interest. 

A court in Food Lion ultimately held that ABC journalists could be sued for trespass or breach of loyalty, but awarded only nominal damages. The factual problem for the plaintiffs that precluded a more substantial damages award was that notwithstanding the concealment of their motives, the journalists had been given jobs at Food Lion, and they did their jobs. So from a damages perspective, Food Lion got what it paid for. The appellate court, unlike the trial jury, was unwilling to consider the reputational harm flowing from truthful disclosures, if deceptively obtained, as any kind of compensable loss.

The outcome in Food Lion was consistent with the broad propositions of First Amendment law that there is no right to gather the news, which is why the Freedom of Information Act is a statutory rule, not a constitutional one; and that journalists are not exempt from generally applicable expectations of law, such as honoring contracts, obeying police orders—and not trespassing. As Chen and Marceau observe, the outcome exerted a chill in investigative reporting.

However, the Food Lion rule is hardly absolute, Chen and Marceau also aptly observe. The rule of no-right-to-gather-news has never been wholly true. The courts have given media latitude to test the limits, for example disallowing wiretap liability for receiving probably illegally intercepted communications. And technological advances have complicated the picture. A majority of U.S. circuit courts now, in a post-George Floyd world, have held that the First Amendment protects video-recording police in public places. The proposition seems right, but it doesn't square with the news-gathering rule.

The outcome in Food Lion further hints at a deeper problem in tort law that Chen and Marceau explore: the problem of damages in cases of only notional harm. In contemporary doctrine, a trespass with no infliction of physical harm or loss might entitle a plaintiff to an equitable remedy of injunction, but no more than nominal damages in tort law, thus Food Lion. Though with no damages in the offing, there is no deterrence to deceptive trespass, a logic that likely explains the eventual waning of Food Lion's chilling effect. The problem bleeds into the contemporary debate over the nature of damages in personal privacy violations. 

Journalism exceptionalism resonates as well in the problem of trespass and consent. Food Lion suggests that consent to enter property is vitiated by deception as to one's motive. Chen and Marceau explore opposing academic and judicial views on the question.

In a remarkable work of empirical research unto itself, Chen and Marceau's chapter 6 presents compelling data to show overwhelming public support for undercover reporting to expose wrongdoing. Public support seems to transcend political ideology and even whether the perpetrator of deception is a journalist or activist.

Chen and Marceau argue summatively and persuasively for a qualified legal privilege to protect journalistic deception in undercover reporting. Historical, ethical, and legal authorities all point in the same direction. Even the Fourth Circuit in Food Lion hedged its bets, observing that generally applicable employment law as applied in the case had only an "incidental effect" on news-gathering; in other words, news-gathering was outweighed as a consideration, not shut out.

Technological advances and citizen journalism will continue to generate conflict among conventional norms of property and fair dealing, evolving norms of privacy, and public interest in accountability in private and public sectors. Truth and Transparency is an essential manual to navigate in this brave new world.

Sherman speaks on lawyering, Spotlight investigation

Ambassador Robert Sherman
RJ Peltz-Steele CC BY-NC-SA 4.0

Attorney Robert A. Sherman, U.S. ambassador to Portugal from 2014 to 2017, spoke to students, staff, and faculty at the University of Massachusetts Law School today about his experience as a lawyer and diplomat.

Sherman's work experience spans criminal and civil practice, as well as politics and diplomacy. In a tort vein, from 2002 to 2004, Sherman was lead counsel for plaintiffs in sex abuse claims against the Roman Catholic Archdiocese of Boston. Those were among the cases investigated by the Boston Globe "Spotlight" team, whose work was dramatized in the 2015 feature film, Spotlight.

Early in the wave of sex-abuse litigation against the church, Sherman said, plaintiff attorneys faced daunting hurdles, such as statutes of limitations and charitable immunity for the church in state law. Another problem was simply identifying victims. Many victims self-blamed, and a powerful stigma attached to the first persons who came forward. 

As is problematically common in American tort litigation, secrecy in negotiated dispute resolution and non-disclosure agreements in settlements prevented the public from knowing who the perpetrators were and from understanding the scope of the wrongs. The same conditions impeded the Spotlight investigation.

Sherman said that he's spoken publicly only recently about his connection to Globe editor Walter V. Robinson and the Spotlight team. Because of his work on the cases, Sherman said, he knew more than the public, and more than the Spotlight team, about the magnitude of the problem. And he knew who the perpetrators were. Yet bound by attorney-client confidentiality, Sherman said, he could not speak freely. He wrestled with his ethical responsibilities, he said.

Occasionally, Sherman met Robinson on a park bench—like in a spy thriller. Robinson wanted names. Sherman couldn't give them. But Robinson might say, for example, "Our sources tell us to look into Father Shanley." Sherman would respond, "I've heard of Father Shanley." That was all Robinson needed to hear to know that his lead was good.

Sherman and his law firm resolved 385 of 525 victim claims against the church in arbitration, he said.

Law school and working as an attorney well prepared Sherman to be an ambassador, he said, because the job of ambassador boils down to resolving conflicts, if between nations rather than between people.

Lawyers on social media delight, inform, raise ethics questions about attorney-client relationships

An attorney panel earlier this month shared the joys and hazards of lawyers addressing the general public through social media.

A hat tip to Mississippi attorney Kye C. Handy, Balch & Bingham, for introducing me to California attorney and influencer Reb Masel on TikTok, the J.D. genius behind Reading Iconic Court Transcripts and other legal commentary.

@rebmasel i dedicate this one to Kohl’s cash #transcripts ♬ original sound - reb for the rebrand

Reb Masel's Rebuttal
(Spotify, Apple, YouTube)

Reb Masel hosts the Rebuttal podcast at Spotify, Apple, and YouTube. Read more about her at Tubefilter, where she said in fall 2023 that she practices in defense-side civil litigation "for now." If you must know more about Pepperdine Law alumna Reb Masel in the muggle world, the Daily Mail wrote about her in 2022.

Handy served on an ethics panel at the Next Generation and the Future of Business Litigation program of the Tort Trial & Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the 2024 ABA Midyear meeting in Louisville, Ky., earlier this month.

A key takeaway of the panel for attorneys: be careful you don't create an attorney-client relationship through social media posts. If giving legal advice, disclaim, disclaim, disclaim.

Florida attorney Richard Rivera said that ethical obligations may arise merely from a viewer's subjective belief that an attorney-client relationship exists. I presume there is a reasonableness check on that, but the objective measure would be lay perception, not the knowledge and experience of the attorney. Thus, a social media post can trigger an attorney's duties of confidentiality and timely response to questions.

Accordingly, Washington attorney Matthew Albrecht warned attorneys to keep up with their inboxes in all media. If a viewer or listener reaches out through a web form, social media direct messaging, etc., asking a question in response to a post, failure to respond promptly can be an ethics violation.

Moreover, an attorney must be wary of questioners who overshare, Albrecht said. They might post comments on a public website that compromise their cases, and the attorney may be obliged to delete the comments to protect the prospective client. A questioner also might provide information that puts the attorney in conflict with prior or existing clients. So an attorney with any online presence should have and adhere to a careful policy for receiving and processing incoming communications.

I wish I could count on a response from a doctor's office when I ask a question. Clearly, the bar for attorneys is higher.

Probably needless to say, some attorneys give advice in mass media that might be accurate in context and not run afoul of ethics rules, but might at the same time invite trouble in problematic misunderstanding. For example, many online videos present Texas lawyers schooling viewers on the use of force in defense of property under the state's generous castle laws. Handy shared one video by a lawyer who described a property owner vs. trespasser confrontation in which the property owner might lawfully "beat her ass."

To inform professionalism, Handy recommended to law students and new lawyers the podcast Young Lawyer Rising from the Legal Talk Network, an ABA partner.

The ABA TIPS panel comprised Albrecht, Handy, Rivera, and D.C. attorney Josephine M. Bahn.

AI can make law better and more accessible; it won't

Gencraft AI image

Artificial intelligence is changing the legal profession, and the supply of legal services is growing even more disconnected from demand.

The latter proposition is my assessment, but experts agreed at a national bar conference last week that AI will change the face of legal practice for attorneys and clients, as well as law students and professors.

Lexis and Westlaw each recently launched a generative AI product, Lexis+ AI Legal Assistant and AI-Assisted Research on Westlaw Precision. One might fairly expect that these tools will make legal work faster and more efficient, which in turn would make legal services accessible to more people. I fear the opposite will happen.

The endangered first-year associate. The problem boils down to the elimination of entry-level jobs in legal practice. Panelists at The Next Generation and the Future of Business Litigation conference of the Tort Trial Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the ABA Midyear Meeting in Louisville, Kentucky, last week told audience members that AI now performs the work of first- and second-year associates in legal practice.

The change might or might not be revolutionary. Popular wisdom routinely describes generative AI as a turning point on the evolutionary scale. But panelists pointed out that legal research has seen sea change before, and the sky did not fall. Indeed, doomsayers once predicted the end of responsible legal practice upon the very advent of Lexis and Westlaw in displacement of books and paper—a transformation contemporary with my career. Law practice adapted, if not for the better in every respect.

It's in the work of junior attorneys that AI is having the greatest impact now. It can do the background legal research that a senior lawyer might assign to a junior lawyer upon acquisition of a new client or case. AI also can do the grunt work on which new lawyers cut their teeth, such as pleadings, motions, and discovery.

According to (aptly named) Oregon attorney Justice J. Brooks, lawyers are under huge pressure from clients and insurers to use AI, regardless of the opportunity cost in bringing up new attorneys. Fortune 500 companies are demanding that AI be part of a lawyer's services as a condition of retention. The corporate client will not pay for the five hours it takes an associate to draft discovery requests when AI can do it in 1.5.

Observers of law and technology, as well as the courts, have wrung their hands recently amid high-profile reports of AI-using lawyers behaving badly, for example, filing briefs citing sources that do not exist. Brooks said that a lawyer must review with a "critical eye" the research memorandum that AI produces. Insofar as there have been ethical lapses, "we've always had the problem of lawyers not reading cases," Illinois lawyer Jayne R. Reardon observed.

Faster and cheaper, but not always better, AI. There's the rub for newly minted associates: senior lawyers must bring the same scrutiny to bear on AI work that they bring to the toddling memo of the first-year associate. And AI works faster and cheaper.

Meanwhile, AI performs some mundane tasks better than a human lawyer. More than cutting corners, AI sometimes sees a new angle for interrogatories in discovery, Brooks said. Sometimes AI comes up with an inventive compromise for a problem in mediation, Kentucky attorney Stephen Embry said. AI can analyze dialogs to trace points of agreements and disagreement in negotiation, Illinois lawyer Svetlana Gitman reported.

AI does a quick and superb job on the odd request for boilerplate, North Carolina attorney Victoria Alvarez said. For example, "I need a North Carolina contract venue clause." And AI can organize quickly large data sets, she said, generating spreadsheets, tables, and graphics.

What AI cannot yet do well is good jobs news for senior lawyers and professors such as me: AI cannot make complex arguments, Brooks said. In fact, he likes to receive AI-drafted memoranda from legal opponents. They're easily recognizable, he said, and it's easy to pick apart their arguments, which are on par with the sophistication of a college freshman.

Similarly, Brooks said, AI is especially bad at working out solutions to problems in unsettled areas of law. It is confused when its training materials—all of the law and most of the commentary on it—point in different directions. 

In a way, AI is hampered by its own sweeping knowledge. It has so much information that it cannot readily discern what is important and what is not. A lawyer might readily understand, for example, that a trending theory in Ninth Circuit jurisprudence is the peculiar result of concurring philosophical leanings among involved judges and likely will be rejected when the issue arises in the Fifth Circuit, where philosophical leanings tend to the contrary. AI doesn't see that. That's where human insight still marks a peculiar distinction—for now, at least, and until I retire, I hope.

It's that lack of discernment that has caused AI to make up sources, Brandeis Law Professor Susan Tanner said. AI wants to please its user, Oregon lawyer Laura Caldera Loera explained. So if a lawyer queries AI, "Give me a case that says X," AI does what was asked. The questioner presumes the case exists, and the AI follows that lead. If it can't find the case, it extrapolates from known sources. And weirdly, as Tanner explained it, "[AI] wants to convince you that it's right" and is good at doing so.

Client confidences. The panelists discussed other issue with AI in legal practice, such as the importance of protecting client confidences. Information fed into an open AI in asking a question becomes part of the AI's knowledge base. A careless lawyer might reveal confidential information that the AI later discloses in response to someone else's different query.

Some law firms and commercial services are using closed AIs to manage the confidentiality problem. For example, a firm might train a closed AI system on an internal bank of previously drafted transactional documents. Lexis and Westlaw AIs are trained similarly on the full data sets of those proprietary databases, but not, like ChatGPT, on the open internet—Pornhub included, clinical psychologist Dan Jolivet said.

But any limited or closed AI system is then limited correspondingly in its ability to formulate responses. And closed systems still might compromise confidentiality around ethical walls within a firm. Tanner said that a questioner cannot instruct AI simply to disregard some information; such an instruction is fundamentally contrary to how generative AI works.

Law schools in the lurch.  Every panelist who addressed the problem of employment and training for new lawyers insisted that the profession must take responsibility for the gap that AI will create at the entry level. Brooks said he pushes back, if sometimes futilely, on client demands to eliminate people from the service chain. Some panelists echoed the tantalean promise of billing models that will replace the billable hour. But no one could map a path forward in which there would be other than idealistic incentives for law firms to hire and train new lawyers.

And that's a merry-go-round I've been on for decades. For the entirety of my academic career, the bar has bemoaned the lack of "practice ready" lawyers. And where have practitioners placed blame? Not on their bottom-line-driven, profit-making business models, but on law schools and law professors.

And law schools, under the yoke of ABA accreditation, have yielded. The law curriculum today is loaded with practice course requirements, bar prep requirements, field placement requirements, and pro bono requirements. We have as well, of course, dedicated faculty and administrative positions to meet these needs.

That's not bad in of itself, of course. The problem arises, though, in that the curriculum and staffing are zero-sum games. When law students load up on practice-oriented hours, they're not doing things that law students used to do. When finite employment lines are dedicated to practice roles, there are other kinds of teachers absent who used to be there.

No one pauses to ask what we're missing.

My friend and mentor Professor Andrew McClurg, retired from the University of Memphis, famously told students that they should make the most of law school, because for most of them, it would be the last time in their careers that they would be able to think about the law.

Take the elective in the thing that stimulates your mind, McClurg advised students (and I have followed suit as an academic adviser). Explore law with a not-nuts-and-bolts seminar, such as law and literature or international human rights. Embrace the theory and philosophy of law—even in, say, your 1L torts class.

When, like my wife once was, you're a legal services attorney struggling to pay on your educational debt and have a home and a family while trying to maintain some semblance of professional responsibility in managing an impossible load of 70 cases and clients pulling 24/7 in every direction, you're not going to have the luxury of thinking about the law.

Profit machines. What I learned from law's last great leap forward was that the "profession" will not take responsibility for training new lawyers. Lawyer salaries at the top will reach ever more for the heavens, while those same lawyers demand ever more of legal education, and of vastly less well compensated legal educators, to transform and give of themselves to be more trade school and less graduate education.

Tanner put words to what the powers-that-be in practice want for law schools to do with law students today: "Train them so that they're profitable."  In other words, make billing machines, not professionals.

Insofar as that has already happened, the result has been a widening, not narrowing, of the gap between supply and demand for legal services. Wealthy persons and corporations have the resources to secure bespoke legal services. They always will. In an AI world, bespoke legal services means humans capable of discernment and complex argument, "critical eyes." 

Ordinary people have ever less access to legal services. What law schools have to do is expensive, and debt-burdened students cannot afford to work for what ordinary people are able to pay.

A lack of in-practice training and failure of inculcation to law as historic profession rather than workaday trade will mean more lawyers who are minimally, but not more, competent; lawyers who can fill out forms, but not conceive new theories; lawyers who have been trained on simulations and pro bono hours, but were never taught or afforded an opportunity to think about the law. 

These new generations of lawyers will lack discernment. They will not be able to make complex arguments or to pioneer understanding in unsettled areas of law. They will be little different from and no more capable than the AIs that clients pay them to access, little better than a human equivalent to a Staples legal form pack.

These lawyers will be hopelessly outmatched by their bespoke brethren. The ordinary person's lawyer will be employed only because the economically protectionist bar will forbid direct lay access to AI for legal services.

The bar will comprise two tribes: a sparsely populated sect of elite lawyer-professionals, and a mass of lawyer-tradespeople who keep the factory drums of legal education churning out form wills and contracts to keep the rabble at bay.

The haves and the have nots. 

It's a brave new world, and there is nothing new under the sun.

The first ABA TIPS panel comprised Victoria Alvarez, Troutman Pepper, Charlotte, N.C., moderator; Laura Caldera Loera and Amanda Bryan, Bullivant Houser Bailey, Portland, Ore.; Professor Susan Tanner, Louis D. Brandeis School of Law, Louisville, Ky.; and Justice J. Brooks, Foster Garvey, Portland, Ore. The second ABA TIPS panel referenced here comprised Svetlana Gitman, American Arbitration Association-International Center for Dispute Resolution, Chicago, Ill., moderator; Stephen Embry, EmbryLaw LLC and TechLaw Crossroads, Louisville, Ky.; Reginald A. Holmes, arbitrator, mediator, tech entrepreneur, and engineer, Los Angeles, Cal.; and Jayne R. Reardon, Fisher Broyles, Chicago, Ill.

Naming rape suspects may draw criminal charges for journalists under Northern Ireland privacy law

Bernard Goldbach via Flickr CC BY 2.0

In Northern Ireland, it's a crime for a journalist to identify a rape suspect.

The relevant provision of the country's Justice (Sexual Offences and Trafficking Victims) Act 2022. Attorney Fergal McGoldrick of Carson McDowell in Belfast detailed the law for The International Forum for Responsible Media Blog in October 2023, just after the law took effect.

The law applies to a range of sexual offenses including rape. The prohibition expires upon an arrest warrant, criminal charge, or indictment. If prosecution does not expire the prohibition on identification, it remains in force until 25 years after the death of the suspect. The act amended preexisting privacy law to afford comparable anonymity to victims.

I have deep experience with this issue, and it is fraught. Despite my strong preference for transparency in government, especially in policing, the law has merit.

I was a university newspaper editor back in ye olden days of paper and ink. My newspaper reported vigorously on accusations of sexual assault against a student at our university by a student at a nearby university. The accusations and ensuing criminal investigation gripped the campus.

We learned the identity of both suspect and accuser. We reported the former and concealed the latter. Discussing the matter as an editorial board, we were uncomfortable with this disparity. Having the suspect be a member of our own community and the accuser an outsider amplified our sensitivity to a seeming inequity. We did take measures to minimize use of the suspect's name in the reporting.

These were the journalistic norms of our time. Naming the accuser was unthinkable. This was the era of "the blue dot woman," later identified as Patricia Bowman (e.g., Seattle Times). The nation was enthralled by her allegation of rape against American royalty, William Kennedy Smith. In the 1991 televised trial, Bowman, a witness in court, was clumsily concealed by a floating blue dot, the anonymizing technology of the time.

Smith was acquitted. The case was a blockbuster not only for TV news, but for journalism, raising a goldmine of legal and ethical issues around criminal justice reporting and cameras in the courtroom.

There was no anonymity for Smith. I went to a Society of Professional Journalists (SPJ) conference around this time, and the issues were discussed in a huge plenary session in a ballroom. The crowd exuded self-loathing for the trauma journalism itself had piled on Bowman. Objectivity be damned, many speakers beat the drums for the pillorying of the acquitted Smith.

The calculation in journalism ethics with regard to Smith, and thus to my editorial board, was that police accountability, knowing whom is being investigated, charged, or detained, and public security, alerting the public to a possible threat, or eliciting from the public exonerating evidence, all outweighed the risk of reputational harm that reporting might cause to the accused. Moreover, ethicists of the time reasoned, it would be paternalistic to assume that the public doesn't understand the difference between a person accused and a person convicted.

Then, in my campus case, the grand jury refused to indict. Our reporting uncovered evidence that the accusation might have been exaggerated or fabricated.

Our editorial hearts sank. Had we protected the wrong person?

My co-editor and I discussed the case countless times in the years that followed. We agonized. It pains me still today. Thirty years later, I find myself still retracing the problem, second-guessing my choices. It's like a choose-your-own-adventure where you feel like you're making the right choice each time you turn the pages, yet your steps lead you inevitably to doom.

Idealistically committed as we were at that age to freedom-of-information absolutism, we were inclined to the anti-paternalistic argument and reasoned that probably we should have named everyone from the start and let the public sort it out.

In our defense, a prior and more absolutist generation of norms in journalism ethics prevailed at the time. I was there at SPJ in the following years as leading scholars worked out a new set of norms, still around today, that accepts the reality of competing priorities and evinces more flexible guidance, such as, "minimize harm." Absolutism yielded to nuance. Meanwhile, the internet became a part of our lives, and both publication and privacy were revolutionized.

So in our present age, maybe the better rule is the Northern Ireland rule: anonymize both sides from the start. 

I recognize that there is a difference in a free society between an ethical norm, by which persons decide not to publish, and a legal norm, which institutes a prior restraint. I do find the Northern Ireland rule troublesomely draconian. The law would run headlong into the First Amendment in the United States. Certainly, I am not prepared to lend my support to the imprisonment of journalists.

Yet the problem with the leave-it-to-ethics approach is that we no longer live in a world in which mass media equate to responsible journalism. From where we sit in the internet era, immersed in the streaming media of our echo chambers, the SPJ Code of Ethics looks ever more a relic hallowed by a moribund belief system.

In Europe, the sophisticated privacy-protective regime of the General Data Protection Regulation (GDPR) is more supportive than the U.S. First Amendment of the Northern Ireland approach. The UK continues to adhere to the GDPR regime since Brexit. The GDPR reflects the recognition in European law of privacy and data protection as human rights, to be held in balance with the freedoms of speech and press. Precisely this balance was at issue in 2022, in Bloomberg LP v. ZXC, in which the UK Supreme Court concluded that Bloomberg media were obligated to consider a suspect's privacy rights before publishing even an official record naming him in a criminal investigation.

McGoldrick wrote "that since Bloomberg most media organisations have, save in exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such identification is in the public interest."

Maybe the world isn't the worse for it.

'Fisk' is the civil-practice lawyer you've been looking for

If you're looking to fill that Netflix queue as the writers' strike drags on, check out the Australian sitcom, Fisk.

When I put together a church message on ethics recently, I was looking to fill out a line about civil practice attorneys and coming up short. I wanted to make the point that when someone says "personal injury lawyer," we are quick to think of iconic unethical characters, and it's harder to conjure up the ethical ones. I didn't at first realize how much harder.

I ran the thought experiment on myself first. Even for me, a torts prof, it's hard, first, to filter out criminal lawyers. When I work the problem chronologically, the first character lawyer I remember adoring in my youth is Star Trek's Samuel T. Cogley (Elisha Cook), who defended Captain Kirk in a court-martial: criminal. The first civil selection that comes to mind is Boston Legal's Alan Shore (James Spader). But even he first appeared on The Practice, a criminal-law show.

Solidly on the civil side, unethical characters do come to mind quickly. For the message, I settled on My Cousin Vinny's Vinny Gambini (Joe Pesci), who was a civil-practice attorney out of his depth in a criminal-law storyline, and, to cross generations, Breaking Bad and Better Call Saul's Jimmy McGill/Saul Goodman (Bob Odenkirk). 

Then the ethical characters....  There are plenty in criminal, both prosecution and defense. Jack McCoy (Sam Waterston) is most often cited as admired when I survey 1L students. Ben Matlock (Andy Griffith) and Atticus Finch are classics.

Civil? Alas, so few people remember Alan Shore. I briefly considered Victor Sifuentes (Jimmy Smits). But on close inspection, nobody on L.A. Law holds up well as memorable and consistently ethically. There was Ally McBeal (Calista Flockhart), but she had a lot of balls (and dancing babies) in the air besides law practice. I interrogated the staff of The West Wing; none of the leads was a lawyer. I'm fond of Madam Secretary's Mike B. (Kevin Rahm), but he was as often as not a devil's advocate to test Elizabeth McCord's righteousness. Erin Brockvich? Real-life hero, but, to be technical, paralegal and consultant, not lawyer. Maybe Ralph Nader, though then it gets political.

John Calvin (1509-1564)
Public domain via Wikimedia Commons

For the church message, I settled on the real-life John Calvin, the 16th-century French theologian. He trained as a lawyer before he got caught up in the Reformation. It's a reach, I know.  But the bench is not deep, and Calvin was a stalwart for his faith.

So I come back around to Fisk, the title character of which is lawyer Helen Tudor-Fisk, created and played by comedian Kitty Flanagan. Tudor-Fisk was a high-powered corporate lawyer in Sydney until a bitter divorce and a workplace meltdown prompted her to upend her career and move to Melbourne. There she struggled to find a bed and a job, landing as a temporary fill-in for a suspended trusts-and-estates lawyer at a scrappy two-partner shop.

Fisk is not about law or legal ethics. The show, and its comedy, derive from Flanagan's delightfully dry-witted character as she navigates the ups and downs of her shattered life. The law practice is setting and background. But then—I don't think it's a big spoiler to say—her quiet diligence in her new job suddenly and gratifyingly comes to the fore in the finale of the six-episode season 1.

When I finished Fisk s1 last week, my own biases were laid bare. I had tried to think of what an ethical civil-practice attorney looks like. I pictured a renowned, tough-as-nails civil litigator, a silver-haired Matlock analog, dazzling jurors in the courtroom in "ripped from the headlines" cases.

Forget all that. Helen is the real deal.

I fell for Fisk.

Season 1 of Fisk is streaming now on Netflix. Season 2 ran on Australian Broadcasting last year; to my knowledge, it has not yet been licensed to stream in America.

UPDATE Oct. 22, 2023: Fisk s2 is now available to purchase in America from services including Amazon Prime.

Ethics problems in law, education inform message on Christian ethics in biblical story of widow's offering

Last Sunday, it was my privilege to deliver a message on "Christian ethics," arising from Mark 12:41-44, at my local church in Barrington, R.I.

The service is posted on the church website. The message begins at about 31 minutes and runs about 24 minutes in duration.

I used two problems in conventional ethics as jumping off points: one, from legal ethics, a lawyer's unintentional acquisition of privileged records produced mistakenly in discovery; and two, from higher education, a student's unintended acquisition of an unfair academic advantage.

I used the term "doing ethics," which I borrow from, though it is not unique to, the work of Bob Steele (no relation), Jay Black, and Ralph Barney, with a powerful assist by Lou Hodges, in journalism ethics in the 1990s. I was privileged to have a front-row seat when they worked out the revised code of ethics for the Society of Professional Journalists at that time, especially the game-changing "Minimize Harm" principle.

In crafting the church message, I am indebted especially to mentors Eric D'Agostino and Scotty Neasbitt, who helped me navigate the research; and to my church leadership, including Dan Harrington, who writes thought provokingly for the ProJo; and, always, to my wife, an unflinching editor.

I note that, as always, this blog is personal and not affiliated with nor controlled by my employer. Sometimes content on this blog serves both to inform the public and to educate my students about the law. This posting, however, concerns religious belief and is exclusively personal in nature. No public resources nor on-the-job time was used in the work of the above-described message, nor in the production of this blog post. At the same time, of course, readers of any and every religious tradition and belief system are welcome on this page and at The Savory Tort, just as all students are welcome and encouraged in my classroom.

Can Arsenal supporter be impartial in football inquiry?

A curious story of lawyering ethics and football allegiance broke in mid-May, just after I went off contract with UMass Law and left the States for a chunk of the summer.

Manchester City Football Club (City, or MCFC), my team, won a historic "treble" over the summer, topping the Premier League, FA Cup, and UEFA Champions League.

Thomas Jefferson, me, and a City kit
at Hofstra University, 2016
Morgan Steele CC BY-NC-SA 4.0

While City was on its spring tear, a modest shadow was cast by allegations of violations of "fair play" financial regulations in the Premier League for transactions dating to 2009 to 2018. From as much as is publicly known, the allegations focus on financial transparency requirements. Any ultimate finding of violation can have consequences going forward, ranging from fines to relegation from top-tier play.

City denies any misfeasance. In 2020, the Court of Arbitration for Sport (CAS) reversed a UEFA suspension of City for alleged violation of the financial regulations related to transactions from 2012 to 2016. The CAS decision was based principally on the exclusion of dated evidence, so the matter was not resolved on the merits. City then also denied any wrongdoing.

The present allegations, which themselves are reported to arise from a four-year investigation, have been referred to an independent commission. Its behind-closed-doors work will take a while. And City can be expected to litigate any adverse result.

The piece of the story that caused me to scratch my chin in May was the report that City had filed objection to the appointment of an Arsenal FC supporter, Murray Rosen KC, as chair of the independent commission.

Under rules of professional conduct in American law practice, being a fan of a sport team would not preclude a lawyer from representing a competitor. American Bar Association (ABA) Model Rule 1.7 focuses on conflicts in legal representation, not matters of social affiliation. Of course, the question comes down to the lawyer's ability to do the job "competent[ly]" and "diligent[ly]," so it's always possible for a lawyer to be compromised by sporting fervor. The best course is disclosure and client consent.

For a judge, ABA Model Code of Judicial Conduct Rule 2.11 similarly, probably, would not demand a sport-fan judge's recusal from a matter involving a competitor. The requisite "personal bias or prejudice" is usually indicated by concrete evidence such as financial interest, familial affiliation, or former representation, not social preference.

More than lawyer ethics, the judicial canons give weight to public perception, testing expressly for objective perception of impartiality. But being a sport fan, absent economic investment, doesn't move that needle.

For example, in a fraud lawsuit settled confidentially five years ago, plaintiffs accused the New York Giants and players, including quarterback Eli Manning, of American football, of passing off memorabilia falsely as game worn. The plaintiffs asked New Jersey Superior Court Judge James J. DeLuca to recuse, because he was a Giants fan and, with his son, owned professional seat licenses—that's something, economically—to attend Giants games. DeLuca declined to recuse and pledged on the record his ability to remain impartial. All good, legal commentators opined. (E.g., NJ.com.)

JAMS guidelines for arbitrators are at least as permissive. Like the judicial canons, the guidelines look to both actual conflict and objective appearance of conflict. JAMS guidelines expressly condone "social or professional relationships with lawyers and members of other professions" as long as they do not "impair impartiality."

I don't know what ethics constraints pertain to Rosen, but I'm doubtful they are any more demanding. I also don't know, though, how deeply Rosen bleeds Arsenal red and white. City's filing is secret, so it's possible there's evidence of conflict that the public can't see.

Nothing in Rosen's public record raises a red flag. Based in London, he's a CAS-certified arbitrator and mediator. Any European professional, especially a Brit, and especially someone working in sport law, can be expected to favor a club or two in association football. Rosen was called to the bar in 1976. He's practiced media, sport, and art law and has served in a wide range of offices, even once chairman of the board of appeal of English Table Tennis.

A biography of Rosen at 4 Square Chambers, pre-dating the City matter, reported:

He is a strong believer in fairness and in the power and benefits of sport and has a keen appreciation of its social, political and financial aspects. He has participated in sport all his life, is a member of the MCC [I presume, Marylebone Cricket Club] and Arsenal FC, and still regularly plays real tennis and ping pong.

A 2019 biography at Herbert Smith Freehills mentioned in parentheses that Rosen "is an Arsenal season ticket holder." Arsenal of course was a contender for trophies City won in the end in its treble. But, at least upon what is publicly known, Arsenal has no direct interest in the financial regulatory matters, any more than another competing club.

The objection to Rosen might be part of a kitchen-sink litigation strategy, or, more likely, a public relations strategy. It's frustrating not being able to know the substance of the objection (or nearly anything about sport governance matters that wind up before CAS). On the public record, at least, the objection on ethics grounds doesn't seem to hold water.

In any event, the allegations against City do nothing to dampen my celebration of the treble! I wore my Erling Haaland kit to law school orientation just last week.

Business touting 'access,' 'journalism' is an ad broker

I find this ad,* "Because Journalism Matters," below, which I saw on my local morning news, troubling.

One could certainly get the impression that the advertiser is a business concerned principally with what the words say: access, accountability, objectivity, and journalism.  So I was pretty excited to see what journalistic outfit made this sleek sales pitch for all that I hold sacred.

The Trade Desk, it turns out, is not a journalistic outfit at all.  It's a media advertising buying platform.  The kind of outfit, I presume, that uses aggregated personal data obtained under the weak American consent regime to target advertising for viewers like me.

That's not all bad.  My wife was quick to point out that ads pays for the journalism I'm watching, insofar as one can still describe local news as journalism.  And The Trade Desk, on its website at least, does advocate for an open internet, so, I presume, supports net neutrality, which is a good thing.

But the commercial motive hardly equates to the public interest that drives journalism.  The ad opens with images of working journalists.  This is misappropriation, in my estimation.  The selection of words, access, accountability, objectivity, and journalism, doubles down on a misleading impression.

The company's website is a bit more honest, inserting between "because" and "matters": trust, reach, measurement, and innovation.  In descriptions, those words are contextualized in commerce.  Trust means transparency to the ad buyer about the ads, not the public's trust.  Reach and measurement plainly are about advertising efficacy.  And innovation, "[f]rom privacy to identity," "focuse[s] on the interests of the entire industry" (my emphasis), not innovation in journalism, and certainly not innovation in the protection of personal privacy and identity from industry.  

Those priorities don't sync in my mind with what looks like a journalist running down a street with a camera and a press badge in one of the opening stills.  Unless he's in a hurry to invade someone's privacy.

I don't know the answer to our woes in journalism, whether nonprofits, public funding, etc.  But if The Trade Desk, however laudable a model in the advertising business, marks the way forward for journalism, then the craft that I learned in j-school will soon be a quaint anachronism comprising only words.

* I realize that by drawing attention to this ad, I'm giving the advertiser exactly what it wants, in a no-publicity-is-bad-publicity way.  I decided that sharing the ad with commentary was only fair.  You decide, as the saying goes.

Schneider proposes (more) insider trading reform for Congress; background guarantees to outrage

Ever feel like it's harder and harder to pay higher and higher bills, even while the news raves about low unemployment, a rising stock market, and the rich get richer?  Feel like our members of Congress are out of touch and only working to line their own pockets?

Not all paranoia is delusional.  Fuel your outrage with Money, Power, and Radical Honesty: A Look at Members of Congress' Use of Information for Financial Gain, an article published by attorney Spencer K. Schneider, once my teaching and research assistant, in the Pepperdine Journal of Business, Entrepreneurship & The Law in November.  Here is the abstract.

Cleared of wrongdoing due to lack of evidence, Senators Kelley Loeffler and David Perdue continued their bids for re-election, and control of the Senate, in the Georgia run-off. Both Senators Loeffler and Perdue traded stocks in the run-up to the COVID-19 crisis after receiving classified briefings. These are just two of many instances of members of Congress profiting after receiving classified information. While the American public remained uninformed as to the true crisis looming as COVID-19 spread, members of Congress received private briefings and quietly sold securities such as travel and hotel related interests, and purchased other securities, such as remote-work software and medical equipment related interests.

Many members of Congress also profit from federal money earmarked to increase the value of their personal land deals, from access to IPOs, and from corporate board seats. While corporate executives, members of the executive branch, and ordinary citizens are subject to strict insider trading laws, members of Congress sail through loopholes and exceptions that are hand-crafted for their benefit. This article reviews proposals for fixing the problem before proposing a comprehensive solution focused on limiting the financial opportunities for members of Congress and strict reporting requirements.

While many proposals to address this problem exist, none come close to preventing members of Congress from profiting in these often nefarious ways. To ensure that members of Congress work on behalf of the American Public—and not their own pocketbooks—the comprehensive and drastic reform articulated in this article is required.

Spencer K. Schneider

Mr. Schneider worked on a piece of this article when he was still a law student under my tutelage.  I remember being flabbergasted by the background section, and then, in January 2021, thinking that we all should be at the Capitol ramparts, but for different reasons.  What's perhaps most disheartening is that past purported reform efforts in Congress have been devoid of will or insincere in execution. I know that Schneider worked hard on his reform proposal and sought advice from skeptical experts. Whether meaningful reform will precede frustration-fueled revolution in this country is anyone's guess.

The article is Spencer K. Schneider, Money, Power, and Radical Honesty: A Look at Members of Congress' Use of Information for Financial Gain, 14 J. Bus. Entrepreneurship & L. 296 (2021).  Schneider is licensed in Massachusetts and bar pending in his present home state of California.

UPDATE, Jan. 28: Less than a week after I posted this item, The Daily Show with Trevor Noah published a nice exposé on congressional insider trading, incorporating some of the same data that fueled Schneider's article and my ire:

Code might inevitably regulate journalism in digital age

The U.K. Information Commissioner's Office is working on a "journalism code of practice" to legislate against defamation and invasion of privacy by mass media.

Principally and ostensibly, the code is intended to bring media law into conformity with U.K. data protection law, essentially the European General Data Protection Regulation (GDPR), including the stories "right to be forgotten," or right to erasure (RTBF). On the ground, the picture is more complicated. The British phone hacking scandal and following Leveson Inquiry constitute a strong causal thread in public receptiveness to media regulation.

Cambridge legal scholar David Erdos analyzed the draft code for the INFORRM public in part one and part two postings in October.  The code incorporates media torts such as defamation of privacy and misuse of private information (MOPI), the latter a common law innovation of British courts to facilitate enforcement of data protection rights. I have posited in other venues that common law tort similarly might provide a way forward to fill gaps in information privacy law in the United States.

Journalism and data protection rights have been on a collision course for a quarter century, like a slow-motion car wreck, and the draft journalism code is a harbinger of the long anticipated impact.  Back in 1995, when the EU GDPR-predecessor Data Protection Directive was brand new, the renowned media law scholar Jane Kirtley published an article in the Iowa Law Review, "The EU Data Protection Directive and the First Amendment: Why a 'Press Exemption' Won't Work."  Kirtley foresaw data protection and the First Amendment's arguably irreconcilable differences before most U.S. scholars had even heard of data protection.

In those innocent days, journalism ethics was reshaping itself to preserve professionalism in the newly realized and anxiety-inducing 24/7 news cycle.  A key plank in the new-ethics platform was its essentiality to resist regulation.  In 2000, media law attorney Bruce Sanford published the book Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us.  Then in 2001, everything changed, and mass media and their consumers became engrossed by new concerns over government accountability.

In a way, the consolidation of media regulation in a generation of code could be a relief for journalism, especially on the European continent.  In an age of ever more complex regulatory mechanisms, codification can offer bright lines and safe harbors to guard against legal jeopardy.  Information service providers from local newspapers to transnationals such as Google are struggling to comply with new legal norms such as the RTBF, and there is as yet little evidence of uniformity of norms, much less convergence. Yet even if industry ultimately embraces the security of code, what's good for business is not necessarily good for wide-ranging freedom of expression. 

Courts, too, are struggling with novel problems.  For example, in late November, the European Court of Human Rights ruled in Biancardi v. Italy that RTBF de-indexing orders extend beyond search engines and bind original news publishers.  Writing for Italian Tech and INFORRM, attorney Andrea Monti fairly fretted that the decision effectively compels journalistic organizations to expend resources in constant review of their archives, else face liability in data protection law.  The result, Monti reasoned, will be to discourage preservation, manifesting a threat to the very existence of historical record.

On the one hand, it's foolish to wring one's hands for fear that journalism is being newly subordinated to legal regulation.  Tort itself is a regulatory mechanism, and defamation has been around for a long time, notwithstanding the seeming absolutism of the First Amendment.  On the other hand, media regulation by law looks nothing like the punctilious supervision of regulated industries, including the practice of law.

In my own education, I found the contrast in approaches to ethics perplexing.  In journalism school, my ethics class had been taught aptly by a religion scholar who led impassioned discussions about handout hypotheticals.  In law school, the textbook in legal profession hit the desk with a thud for what was as much a study of model or uniform code as was crim or sales.

With no "First Amendment" per se, media regulation by code is not the novelty in the U.K. that it would be in the United States.  Still, with privacy and digital rights sweeping the globe, law is poised to regulate journalism in new ways everywhere, whether through the subtlety of common law or the coercive power of civil regulation.  American courts will not be able to escape their role in reshaping fundamental rights for the digital world, as European courts are at work doing now.  Kirtley foresaw the issues in 1995, and the chickens are slowly but surely turning up at the roost.

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