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

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

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

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

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

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

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

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

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

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

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

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

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

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

Americans can't find doctors in sick system, but docs whine too loudly on debt, ignore excessive earnings

In the current AARP Bulletin (pay wall, Apple News), New York Dr. Howard Zucker capably explains why Americans are being squeezed by a doctor shortage. But two points of Zucker's explanation too easily let doctors off the hook and require clarification.

I hope tomorrow to meet my primary care physician (PCP) for the first time, after he's nominally served in that role for two years. I've seen five PCPs come and go in as many years, which is really like not having a PCP at all—oddly, as my insurer insists that I must have one. The annual checkup has become biennial at best, and it's not for my lack of trying. At that, with my mediocre employment-based healthcare coverage, I'm more fortunate than many Americans.

Zucker describes the many circumstances converging to deprive Americans of access to healthcare providers. A leading problem is poor planning by the medical profession, embodied by the American Medical Association (AMA), for an increasing and aging population.

Another factor, which is familiar to patients, is the pressure by profit-driven healthcare proprietors, such as CVS, to commodify patient care, superseding the doctor-patient relationship and thoughtful care with the churning cauldron of the billable quarter hour. Workplace conditions for front-line PCPs are not only maddening patients, but driving some healthcare providers, literally, to madness.

Nevertheless, there are two ways in which Zucker goes too easy on doctors, letting them off the hook for responsibility in this mess.

First, Zucker is wrong that a doctor can't get by with medical school debt and a PCP wage.  

He wrote that the average medical student finishes school with $235,000 in debt. Specialties pay some double the wage of primary care. Research posts pay well and don't have insurers dictating terms. So debt-burdened students are disincentivized to enter family practice or to work directly with patients at all. 

Still, Zucker wrote: "Now consider that the average [PCP] in internal medicine, geriatrics, pediatrics or family medicine makes about $250,000 to $275,000 a year. Becoming a PCP just isn't financially feasible for most recent graduates."  Just for the record, that's more than I've ever made at any job, and I've had a law degree for 28 years.

Not financially preferable I can see.  Not financially feasible is plain wrong.

For comparison, the average indebtedness of a U.S. law school graduate is $130,000, according to the Education Data Initiative. For the law school where I work, it's about the same, $125,405, U.S. News reported. The median law graduate salary is $89,250, according to U.S. News. My school's is about $68,000, according to LSD.Law. Ballpark monthly repayment, using, for these gross purposes, a 4.5% rate and 10-year term, means a monthly payment of $1,347, according to the SmartAsset student loan calculator.

To be sure, that's too much debt to make law school an appealing option. The Consumer Finance Protection Bureau recommends limiting borrowing to hold monthly payments at 10% of gross income. Those median salaries yield a monthly gross of $7,438 or $5,667, respectively, so a monthly payment at 18.1% or 23.8%. 

But it is possible, depending on one's needs. An annual $89,250 or $68,000 should yield a monthly take-home of about $5,600 or $4,400, according to the SmartAsset paycheck calculator. On the one hand, the average American household requires $6,440 per month, according to multiple sources. On the other hand, a single adult with no children can get by on $3,439 in the Massachusetts county where my school is located, according to the MIT living wage calculator. The overall average American individual is bringing home only about $4,000 monthly, using Bureau of Labor Statistics (BLS) data, so one salary isn't meeting household expenses in any event.

Accordingly, using the same metrics, the medical graduate's monthly debt payment would be $2,434. The PCP monthly take-home at the low end would be about $14,200, on $20,833 gross. That's a payment to gross ratio of only 11.7%, with $11,766 to spare for monthly household expenses. Even at a student loan rate of 9%, the monthly payment hits only 14.3% of gross, still sparing more than $11,000 to meet expenses. (A first-year medical resident starts at only about $55,000 annually, U.S. average, but lean residency years are the quirky if objectionable norm in the profession regardless of later specialization.)

Once debt is paid off, doctor's circumstances become downright luxurious. BLS estimates the median American's lifetime earnings at $1.7m, a lawyer's at $2.3m, and a doctor's at $7.5m. 

So it is feasible to invest in medical school—even potentially lucrative—and even still to be a PCP for a few years.

Second, Zucker fails to recognize the economic protectionism of the medical profession and bloat in the salaries of U.S. doctors—even PCPs.

Zucker did fault the AMA for choking medical school admissions in the 1980s. But Zucker blamed the AMA only for bad math. The truth is more sinister.

The AMA doesn't control medical school admissions directly, but it does lobby hard for legislators to limit the number of medical schools and to limit subsidies for residencies, thus effectively controlling supply in the market. This isn't about the quality of medical training, but about economic protectionism. The AMA, that is, its members, doctors, don't want to see salaries go any lower than those dizzying quarter-million-dollar heights.

(Read more in Derek Thompson, Why America Has So Few Doctors, The Atlantic (Feb. 14, 2022).)

That's what's happened in law as antitrust rumblings have compelled the American Bar Association and state bars to let up on the gas in their economically protectionist motives over the last four or five decades. The market in legal education has become more competitive—even problematically so, from a quality standpoint, it must be admitted—and salaries have fallen.

At the same time, persistently burdensome accreditation gateways in education and strict state licensing requirements in the practice have maintained such a chokehold on the student-to-bar pipeline that the lower paid lawyers who result cannot afford to meet the market demand for legal services for ordinary people, in contrast with corporate clients.

So law is not a model to follow, to be sure. At the same time, one doctor in America does not need to take home an excess of nearly double what's required to keep up an American household, nor to make more than four times the median American lifetime wage. European doctors are paid only half as much as U.S. doctors. In fact, there's a huge gap between U.S. doctors, at an average annual gross of $352,000, and doctors anywhere else in the world—ranging from an average $19,000 in Mexico to $273,000 in Canada, according to news outlet Medscape.

Zucker didn't mention the bloat in salaries of U.S. doctors in the AARP Bulletin. Incidentally, when Dr. Zucker was New York health commissioner, earning $210,000 annually on the public payroll, he took some heat for failing to disclose a side-gig income of $75,000 annually from a health research firm, e.g., the Times Union reported.

Our healthcare system is badly broken.  Like our legal services.  Like our bridges.  The list goes on.  What I fear is missing from the solution is the willingness of Americans in the highest income brackets to bear any sense of civic responsibility. In this regard, the medical profession is not exempt.

Law student vets collect food for hurricane victims

VLA members
UMass Law photo

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

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

Rep. Markey and Trocchio
UMass Law photo

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

Law students speak to barriers to legal education

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

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

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

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

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

New book spotlights freedom of press in film

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

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

Here is the publisher's description of the book:

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

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

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

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

Here is the table of contents.

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

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

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

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

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

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

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

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

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

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

 

Remembering Professor Frances S. Fendler

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

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

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

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

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

China Doll
Photo © RJ Peltz-Steele

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

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

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

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

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

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

Wood wins Rappaport Fellowship

Rebecca Wood
BC Law

Rebecca Wood, a survivor of my 1L torts classes, has won a prestigious Rappaport Fellowship in law and public policy.

Wood became active in politics after the premature birth of her daughter raised urgent questions for her family about the inadequacies of insurance and healthcare in America. Check out her story as told while working on Medicare-for-all legislation with Bernie Sanders in 2017. She testified movingly before the U.S. House of Representatives Ways and Means Committee in 2019. 

Wood enrolled in law school as a Public Interest Fellow to attain a law degree that will arm her for public policy work. She was a pleasure to have in class, because she is insightful and sensitive to the powerful public policy implications of tort law. She will be a formidable force for good, and I'm privileged to be a part of her education.

At Boston College, "[t]he Rappaport Fellows Program in Law and Public Policy provides gifted students committed to public policy careers with opportunities to experience the complexities and rewards of public policy and public service within the highest levels of state and municipal governments." Wood spent the summer as an intern at the Massachusetts Attorney General’s Office.

New book examines 'rise of classical legal thought' through experience of South Asia, British Empire

Professor Chaudhry
UMass Law

Professor Faisal Chaudhry has published a book on history and the development of classical legal thought.

South Asia, the British Empire, and the Rise of Classical Legal Thought: Toward a Historical Ontology of Law (2024) is available now from Oxford University Press. Here is the publisher's description:

This book delves into the legal history of colonial governance in South Asia, spanning the period from 1757 to the early 20th century. It traces a notable shift in the way sovereignty, land control, and legal rectification were conceptualized, particularly after 1858. During the early phase of the rule of the East India Company, the focus was on 'the laws' that influenced the administration of justice rather than 'the law' as a comprehensive normative system. The Company's perspective emphasized absolute property rights, particularly concerning land rent, rather than physical control over land. This viewpoint was expressed through the obligation of revenue payment, with property existing somewhat outside the realm of law. This early colonial South Asian legal framework differed significantly from the Anglo-common law tradition, which had already developed a unified and physical concept of property rights as a distinct legal form by the late 18th century. It was only after the transfer of authority from the Company to the British Crown, along with other shifts in the imperial political economy, that the conditions were ripe for 'the law' to emerge as an autonomous and fundamental institutional concept. One of the contributing factors to this transformation was the emergence of classical legal thought. Under Crown rule, two distinct forms of discourse contributed to reshaping the legal ontology around the globalized notion of 'the law' as an independent concept. The book, adopting a historical approach to jurisprudence, categorizes these forms as doctrinal discourse, which could articulate propositions of the law with practical and administrative qualities, and ordinary language discourse, which conveyed ideas about the law, including in the public domain.

Professor Chaudhry is a valued colleague of mine. I admire his critical and historical approach to first-year property, with which he complements my social and economic emphases in teaching torts.

'Faculty are the least important people on a campus,' but don't worry; administrators will be all right

Adaptation of Joe Loong via Flickr CC BY-SA 2.0

A recent item in The Chronicle of Higher Education (subscription), excerpted by Paul Caron on TaxProf Blog, well captures what it feels like to be a professor in American higher ed nowadays.

The Chronicle item, by Beckie Supiano, talks about tenured and tenure-track professors leaving the "dream job" of academia. Author and consultant Karen Kelsky founded a private Facebook group, now counting 33,000 members, as a virtual home for the disillusioned: "The Professor is Out."

Supiano quoted Kelsky:

"The faculty are the least important people on a campus right now," Kelsky says. If colleges valued their work, she says, they wouldn't have allowed "adjunctification" to happen in the first place. The current wave of faculty departures—which colleges don't even seem to have acknowledged—is simply the latest twist in a decades-long deterioration.

"Institutions' indifference to faculty leaving," she says, "is a reflection of their indifference to faculty's being there."

To some professors, the job they've worked so hard for feels untenable. And that's particularly true for those who ... pour themselves into their positions and strive to connect with students on a personal level. That's something that colleges sell to students, but it's not something they seem actually willing to invest in.

Right: especially that first line about faculty being the least important people on campus. Though "right now" might erroneously suggest a new condition. Rather, this lament is the familiar theme of the widely referenced book by Benjamin Ginsberg, The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, in 2011, when the data already were ample.

Despite Ginsberg calling out the trend more than a decade ago, nothing has changed. Faculty governance is practically a dead letter. Faculty work not only for provosts and chancellors, but for every support service office on campus, such as information technology and human resources. We're told when and where, and increasingly how and what to show up and teach. Worse, we're loaded down with hamster-wheeling administrative work. It seems that every new administrator means more work for me, too. I feel ever more like Lucy on the assembly line.

This state of affairs was a refrain at last week's Niagara Conference on Workplace Mobbing (more to come about the conference here at The Savory Tort). In the same vein, I heard mounting faculty anxiety over AI. If universities, as the bottom-line businesses they've become, care about the delivery of services almost to the exclusion of quality, then they will gravitate to the worker that never sleeps and never whines about the rising costs of housing, healthcare, and college for our own kids.

In my workplace, "adjunctification," as Kelsky put it, manifests as noncompetitive compensation for both part-time and full-time faculty. A first-year attorney in Big Law makes substantially more than any of the teaching faculty at the law school where I work—

—excluding deans. A university's priorities ring clear when one compares the qualifications and salaries of teaching faculty with salaries in the bureaucracy. Judge my shop for yourself with a recent top-100 round-up at South Coast Today (or look up anyone in the Massachusetts public sector). Be wary of listed titles. At no. 32, I'm the top paid, still serving, and exclusively teaching "professor." Other "professors" at nos. 5-30 had or have admin roles that fattened the bankroll. The money is in admin and overhead, even while students strain to see the return on that investment.

Indeed, as Kelsky suggests, most of us, teaching faculty, still "strive to connect with students on a personal level," despite lack of incentives to do so. That's probably because it's the character flaw of human compassion that draws us to teaching. I'm working on it: trying to be a good worker by caring less and keeping the assembly line moving. "Speed it up a little!" Maybe, for students' sake, AI will meet us halfway in the humanity game.

Law class visits Constitutional Court of Portugal

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

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

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

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

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

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

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

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

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

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

 

Global Law Classroom unites law students online

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

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

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

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

My writing is 'not very good,' and other reasons you can't get ahead in our not-really-a meritocracy

Pxhere CC0

A purported mentor once told me that probably I couldn't find a job in academics because my "writing is not very good."

'Tis the season when the law professor should be writing exams, yet is inundated and distracted by requests for recommendation letters to aid students on the career track. The distraction has caused me to ponder the futility of it all. Aside from the fact that my laboriously and meticulously drafted letters scarcely will be read, I'm saddened by how little a person can do to move the needle on ultimate potential in our supposed meritocracy.

In the 20-aughts, I was looking for my second job in academics, hoping to leave Arkansas and the curse of flyover country. My job search took five years. I lost count of how many applications I put in. It had to be more than there are law schools in the United States.

At some point, through a program I won't identify, as not to identify the person, I was paired with a mentor, an academic at a U.S. News "top 10" law school. After a couple of telephone counselings in which he told me nothing I did not know already, he suggested that maybe I needed to accept that I could not score a job because my "writing is not very good."

That was hurtful. Not because it wasn't a fair consideration to put on the table; it was. It was hurtful because it was his go-to conclusion, and rather the end point of the short arc that was his mentorship. There were countless other explanations for my struggle in the job market. He blew past all of them to rest on one: I suck.

Implicit in the suggestion was that he was at a top-10 school because he was so much better at the job than I. That's what hurt. And as I've matured in my career, I've come to realize how wrong he was.

I have a lot of experience now on the hiring side of hiring, almost three decades, at least in legal academics. And I've worked out a formula, though sometimes I tweak the apportionment, I feel like about describes the factors at play in getting a job, certainly in legal academics, but maybe anywhere:  

• 60% privileges; 
• 30% right-place-right-time; and 
• 10% merit.

I'm not one of these "privilege walk" organizers who use loaded questions to make people feel guilty about socioeconomic advantages, and then to feel good about having felt guilty, and then relish telling everyone how privileged I now know I am, without actually doing anything to make the world better. But I do try to be conscious of privileges, especially the ones that I have and did nothing to earn.

I did not start at the bottom of the ladder. That I'm not a person of color, thus not subject to unfair biases manifesting as implicit assumptions about aptitude and potential, nor followed by security in stores and distrusting of police; that I went to K12 in reputable suburban school districts with dedicated teachers and was a child of two parents with college degrees: these factors have worked immeasurable benefits in my life, no thanks to anything I did.

I didn't start at the top, either. My divorced, usually single parents were college educated thanks to community-college access and the military. My family was the typical penniless-20th-century-immigrant story, and my parents and grandparents were victimized by ethnic discrimination with real socioeconomic consequences. I was able to go from public school to a first-rate undergrad with mostly private-schooled kids only because I earned a full scholarship.

On the inside of hiring in academics—I can tell another time cringe-worthy stories of before academics—I have seen it all, and candidate merit is only weakly indicative of outcome.

Because of the prevalence of liberal politics in academics—I do not suggest that preferences ordinarily run in these directions in the job market in general—I had a dean who announced the race (not mine) and gender (not mine) of an intended hire at the beginning of the search process; and I've had colleagues announce, also in advance of a search, that they would vote against any candidate of a certain race (mine) or gender (mine). I've likewise heard colleagues openly favor or disfavor candidates based on perceived sexual orientation (minority favored) and religion (belief disfavored). So to pretend that these factors are not in play, whether or not they are verbalized, would be willfully ignorant.

But race, gender, etc., are easy targets to exemplify pernicious discrimination. There are other factors that are more subtle, yet equally well effect socioeconomic exclusion, and thus indirectly race discrimination. And these factors are embraced by persons both liberally and conservatively minded.

When I was at a "tier 3" law school looking for a job, a colleague at a "tier 2" school—who knew I was looking for a job—asked me whether I might recommend anyone—not me—to fill an open position at her school. I was disqualified presumptively for the open position, because I did not do a judicial clerkship after law school. My colleague iterated this hiring expectation as if it were a self-evident sine qua non. She assumed I knew my place, and I was in it. One does not advance to tier 2 without a clerkship on the resume. "We prefer people who've clerked at the Supreme Court," she said breezily.

I didn't do a judicial clerkship after law school for various reasons. A big reason was that I was sick over the profound debt I had incurred paying for law school 100% with loans. 

I had turned down full scholarships at two other law schools to pay full freight at a top 10, because I hoped the top 10 would open doors the others could not. I could not see, after law school, how I could take a job in which I would struggle to make monthly payments, or worse, postpone them, with interest accruing. For the same reason, I didn't go back to journalism after law school, which had been my plan. I also did not have anyone in law or legal academics to advise me on the value of a clerkship—an opportunity, perversely, that one never has again—for my later career.

I was the beneficiary of many privileges at that time in life. Not among them was the luxury of choosing a clerkship or any job because it would be a smart resume builder, rather than because it would pay my bills. Not among them was having anyone to model a career in legal academics, or tell me what to do to get there. And yet, with no undergrad debt, I already was much better off than most of the students I teach now. I did not yet have a family to take care of. I was able to put every spare dime from my attorney earnings into paying off my debt.

My top-10 choice paid off some, because I would not otherwise have scored my first job in academics. A key faculty player in hiring had gone to the same law school I did. The hiring school was in urgent need of an immediate start, and I was willing to quit my job and move halfway across the country at Christmas. The hiring school was especially vexed over poor student writing skills, and I was a former journalist and capable copy editor. There it is: 60% privileges, 30% right-place-right-time, and 10% merit.

Yet I would be limited thenceforth by not having clerked, and by other, similar factors. I never volunteered abroad, as many aspiring academics do. I wanted to—because of my family ties, a passport was a privilege I did have—but, again, I had to work 50 weeks per year to pay on my debt.

At my attorney job, I had little to no mentorship; it was all about billable hours. I had no role models to show me how to navigate in that world. I had no business contacts; no matter how hard I worked, I never would have made partner. The media lawyer I worked for when I started left for an in-house position after a year, and I was reassigned to the grind of mass-tort discovery.

In my first academic post, I had little to no mentorship in my professional development at my "tier 3" school. I had not even a scholarship requirement for my first years, when I was a contract instructor, not tenure track. I did not know to publish, what to publish, or where. I wrote and published only because I wanted to, about whatever I wanted. It was the law-professor equivalent of being a journalist; if you have writing in your heart, it's a compulsion.

I did not know that the choices I was making, from starting as an instructor rather than an assistant professor, to the lack of an overarching research agenda, to everything from subject matter to placement strategy to the titles of my articles: all was part of a portfolio that I had only one chance to do right. I didn't.

Sometimes a student comes to me and expresses a desire for an academic career. My heart breaks. I have a rehearsed presentation to explain, as gently as I can, that the student already is behind on that goal: by definition, as we are having the conversation at a "tier 4," or bottom tier, law school. An academic career probably is foreclosed because of "poor" choices the student already has made unwittingly, such as having a family and living on a budget.

Mostly, the track is foreclosed by circumstances beyond the student's control: Urban childhood. Weak K12. No jobs for youth. No college counseling. Ailing parents. Delayed higher education. Being the wrong race, ethnicity, religion, or sexual orientation and identity for whatever is in fashion.

Even the brightest and most determined candidate cannot cause 10% merit to control the outcome.

The "mentor" I mentioned at the top: I take nothing away from his merit. But does he appreciate why he is where he is? Does he think that when he submits an article for publication, its merits are the principal driver of an offer? Does he think that when he submits a job application, his hard work is the principal driver of an invitation?

He's a white man who started adulthood before I and in the "Morning in America" Reagan heyday. I don't want to say what college he went to, but suffice to say, it's one you've heard of in connection with Presidents and Supreme Court Justices. Law school too. Maybe he was plucked from child labor in an Appalachian mine to be gifted with these opportunities, but odds are not. He then clerked for a federal appeals court, and then for the U.S. Supreme Court. He diversified the resume with a short stint abroad. He worked briefly in public and private sectors. He won a teaching fellowship in the top 10, and never worked lower: from there to tenure track, named professorship, center director, etc.

Brilliant bloke. 10%. 

But not that brilliant. 60% privileges, 30% right-place-right-time.

I think my writing is very good.

UMass Law inaugurates comparative law study abroad

UMass Law School has announced a two-week study abroad program in Lisbon, Portugal, in partnership with Universidade Católica Portuguesa (UCP), focused on U.S.-EU comparative law.

I'm quick to call out my employer when it does something bone-headed, so I should be willing to give praise when it does something right. This is the latter.

In 28 years of university teaching, I've consistently had to persuade deans that internationalism matters. Some, not always nor wholly to their discredit, have been so absorbed by the burdens of making the world better locally that they have not had the bandwidth to think about other cities and states, much less countries.

Some have just been fools. Like the one in Arkansas who told me that "our students don't care about that" to reject my proposed partnership with a Mexican school when Arkansas had the fastest growing per capita Latino population in the country, a new Mexican consulate was opening in Little Rock, and we supposedly cared about diversity.

It was a shock, then, to find that the new top dean this academic year at UMass Law, Sam Panarella, believes that international engagement is a vital component of being a good law school. Thanks to his leadership in just his first year as dean, 10 students from UMass Law will journey to Lisbon this very year to study the comparative law and policy of U.S. and EU data protection.

Rhode Island and the south coast of Massachusetts, where UMass Law is located, are home to the largest Portuguese-American population in the United States by a wide margin. So the program is a welcome and logical fit for 14-year-old UMass Law School. The program is made possible, especially for students, by generous support from the Center for Portuguese Studies and Culture at UMass Dartmouth, which does important work in its cultural niche.

We plan to repeat the Lisbon program in future years, in other areas of comparative focus, taking advantage of the varied expertise of law faculty at UMass and UCP. There are hurdles to overcome. But I'm hopeful that this is just the beginning of UMass Law's portfolio on international engagement.

Free torts textbook ready for academic year 2024-25

TORTZ: A Study of American Tort Law is complete and revised for the coming academic year 2024-25.

The two-volume textbook is posted for free download from SSRN (vol. 1, vol. 2), and available in hardcopy from Lulu.com at cost, about $30 per volume plus shipping.

• SSRN volume 1
• SSRN volume 2
• Lulu.com hardcopies

This final iteration of the book now, for the first time, includes its final three chapters: (16) interference and business torts, (17) government liability and civil rights, and (18) tort alternatives.

---

TORTZ TABLE OF CONTENTS

Volume 1

Chapter 1: Introduction

A. Welcome
B. The Fundamental Problem
C. Parameters
D. Etymology and Vocabulary
E. “The Pound Progression”
F. Alternatives
G. Review

Chapter 2: Intentional Torts

A. Introduction
B. Assault

1. History
2. The Restatement of Torts
3. Subjective and Objective Testing
4. Modern Rule
5. Transferred Intent
6. Statutory Torts and Harassment

C. Battery

1. Modern Rule
2. The Eggshell Plaintiff
3. Knowledge of a Substantially Certain Result
4. Common Law Evolution and Battered Woman Syndrome

D. False Imprisonment

1. Modern Rule
2. Problems

E. Intentional Infliction of Emotional Distress (IIED)

1. Dynamic Intent
2. Modern Rule
3. The “Heart Balm” Torts

F. Fraud

1. Fraud in Context
2. Modern Rule
3. Pleading Fraud
4. Exercise

G. The “Process” Torts

1. Innate Imprecision
2. Modern Rule
3. Majority Rejection of Malicious Civil Prosecution

H. “Prima Facie Tort”

1. Origin of Intentional Tort
2. Modern Rule

Chapter 3: Defenses to Intentional Torts 

A. Introduction
B. Defenses of Self, Other, and Property
C. The Spring Gun Case
D. Arrest Privilege and Merchant’s Privilege
E. Consent

1. Modern Rule
2. Scope of Consent
3. Medical Malpractice
4. Limits of Consent

F. Consent in Sport, or Recklessness

1. The Problem of Sport
2. Recklessness

Chapter 4: Negligence

A. Introduction
B. Modern Rule
C. Paradigmatic Cases
D. Historical and Theoretical Approaches to Negligence

1. Origin
2. Foreseeability
3. Custom
4. Augmented Standards
5. Economics

a. Introduction
b. “The Hand Formula”
c. Coase Theorem, Normativity, and Transaction Costs

6. Aristotelian Justice
7. Insurance and Loss-Spreading

E. Landowner Negligence, or Premises Liability

1. Theory of Duty and Standards of Breach
2. Common Law Tripartite Approach
3. Variations from the Unitary Approach in the Third Restatement
4. Applying the Framework, and Who Decides

F. Responsibility for Third-Party Conduct

1. Attenuated Causation, or “the Frances T.  Problem”: Negligence Liability in Creating Opportunity for a Criminal or Tortious Actor
2. Vicarious Liability and Attenuated Causation in the Employment Context: Respondeat Superior and “Direct” Negligence Theories

G. Statutory Torts and Negligence Per Se

1. Statutory Torts
2. Negligence Per Se

a. Introduction
b. Threshold Test
c. Three Mile Island

H. Medical Negligence
I. Spoliation of Evidence

1. Introduction
2. Minority Rule
3. Recognition or Non-Recognition of the Tort Approach
4. Majority Approach

J. Beyond Negligence

Chapter 5: Defenses to Negligence

A. Express Assumption of Risk (EAOR)
B. EAOR in Medical Negligence, and the Informed Consent Tort

1. Development of the Doctrine
2. The “Reasonable Patient” Standard
3. Modern Rule of Informed Consent
4. Causation in Informed Consent
5. Experimental Medicine

C. “Implied Assumption of Risk” (IAOR)

1. Everyday Life
2. Twentieth-Century Rule
3. Play and Sport
4. Work

D. Contributory Negligence

1. Twentieth-Century Rule
2. Complete Defense
3. Vitiation by “Last Clear Chance”

E. Comparative Fault
F. IAOR in the Age of Comparative Fault

1. The Demise of “IAOR”
2. Whither “Secondary Reasonable IAOR”?
3. Revisiting Mrs. Pursley at Gulfway General Hospital

G. Statutes of Limitations
H. Imputation of Negligence

Chapter 6: Subjective Standards

A. Introduction
B. Gender

1. The Reasonable Family
2. When Gender Matters

C. Youth

1. When Youth Matters
2. Attractive Nuisance
3. When Youth Doesn’t Matter

D. Mental Limitations

1. General Approach
2. Disputed Policy

Chapter 7: Strict Liability

A. Categorical Approach
B. Non-Natural Use of Land
C. Abnormally Dangerous Activities

1. Defining the Class
2. Modern Industry

D. Product Liability

1. Adoption of Strict Liability
2. Modern Norms
3. “Big Tobacco”
4. Frontiers of Product Liability

Chapter 8: Necessity

A. The Malleable Concept of Necessity
B. Necessity in Tort Law
C. Making Sense of Vincent
D. Necessity, the Liability Theory

Chapter 9: Damages

A. Introduction
B. Vocabulary of Damages
C. Theory of Damages
D. Calculation of Damages
E. Valuation of Intangibles
F. Remittitur
G. Wrongful Death and Survival Claims

1. Historical Common Law
2. Modern Statutory Framework

a. Lord Campbell’s Act and Wrongful Death
b. Survival of Action After Death of a Party

3. Problems of Application

H. “Wrongful Birth” and “Wrongful Life”
I. Punitive Damages

1. Introduction
2. Modern Rule
3. Pinpointing the Standard

J. Rethinking Death Compensation

Volume 2

Chapter 10: Res Ipsa Loquitur

A. Basic Rules of Proof
B. Res Ipsa Loquitur (RIL)

1. Modern Rule
2. Paradigmatic Fact Patterns

Chapter 11: Multiple Liabilities

A. Introduction
B. Alternative Liability
C. Joint and Ancillary Liability
D. Market-Share Liability Theory
E. Indemnification, Contribution, and Apportionment

1. Active-Passive Indemnity
2. Contribution and Apportionment
3. Apportionment and the Effect of Settlement

F. Rules and Evolving Models in Liability and Enforcement
G. Review and Application of Models

Chapter 12: Attenuated Duty and Causation

A. Introduction
B. Negligence Per Se Redux

1. The Problem in Duty
2. The Problem in Causation
3. The Problem in Public Policy

C. Duty Relationships and Causation Timelines

1. Introduction
2. Frances T. Redux, or Intervening Criminal Acts
3. Mental Illness and Tarasoff Liability
4. Dram Shop and Social Host Liability
5. Rescue Doctrine and “the Fire Fighter Rule”

a. Inverse Rules of Duty
b. Application and Limits

6. Palsgraf: The Orbit and the Stream

a. The Classic Case
b. A Deeper Dig

D. Principles of Duty and Causation

1. Duty
2. Causation

a. The Story of Causation
b. Proximate Cause in the Second Restatement
c. Scope of Liability in the Third Restatement
d. Proximate Cause in the Third Restatement, and Holdover Rules
e. A Study of Transition: Doull v. Foster

E. The Outer Bounds of Tort Law

1. Balancing the Fundamental Elements
2. Negligent Infliction of Emotional Distress (NIED)

a. Rule of No Liability
b. Bystanders and Borderline NIED

3. Economic Loss Rule

a. The Injury Requirement
b. Outer Limits of Tort Law
c. Loss in Product Liability and the Single Integrated Product Rule

Chapter 13: Affirmative Duty

A. Social Policy
B. The American Rule
C. Comparative Perspectives
D. Bystander Effect, or “Kitty Genovese Syndrome”

Chapter 14: Nuisance and Property Torts

A. Trespass and Conversion
B. Private Nuisance
C. Public Nuisance and the Distinction Between Private and Public
D. “Super Tort”

Chapter 15: Communication and Media Torts

A. Origin of “Media Torts”
B. Defamation

1. Framework and Rules
2. Defamation of Private Figures

a. Defamation Proof
b. Defamation Defense

3. Anti-SLAPP Defense
4. Section 230 Defense
5. Constitutional Defamation

a. Sea Change: New York Times Co. v. Sullivan
b. Extending Sullivan
c. Reconsidering Sullivan

C. Invasion of Privacy

1. Framework and Rules

a. Disclosure
b. Intrusion
c. False Light
d. Right of Publicity
e. Data Protection

2. Constitutional Privacy and False Light
3. Demonstrative Cases

a. Disclosure and Intrusion
b. Right of Publicity
c. Bollea v. Gawker Media

4. Data Protection, Common Law, and Evolving Recognition of Dignitary Harms

Chapter 16: Interference and Business Torts

A. Business Torts in General

1. Tort Taxonomy
2. The Broad Landscape
3. Civil RICO

B. Wrongful Termination
C. Tortious Interference

Chapter 17: Government Liability and Civil Rights

A. Sovereign Immunity

1. Federal Tort Claims Act (FTCA) and Foreign Sovereign Immunities Act (FSIA)
2. Text and History of the FTCA
3. Discretionary Function Immunity

B. Civil Rights

1. “Constitutional Tort”
2. Core Framework
3. Official Immunities
4. Climate Change

C. Qui Tam
D. Human Rights

1. Alien Tort Statute
2. Anti-Terrorism Laws

Chapter 18: Tort Alternatives

A. Worker Compensation

1. Introduction and History
2. Elements and Causation
3. Efficacy and Reform

B. Ad Hoc Compensation Funds