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.

Court quashes $19m side deal in casino creation

Encore Boston Harbor, shiny and new in 2018.
Photo by Pi.1415926535 via Wikimedia Commons CC BY-SA 3.0

A $19m side deal in a major casino real estate transaction is invalid and unenforceable as a matter of public policy, the Massachusetts Supreme Judicial Court ruled this morning.

The ruling demonstrates the rarely seen hand but overriding importance of public policy in the law of obligations. The state high court was answering a certified question from the First Circuit.

First, some context.

For the record, nobody does corruption in America like northeasterners. It's been eye opening for me, living in this part of this country for the first time in my life, since moving here in 2011: the weird way roads and bridges remain perpetually under construction for decades—the orange barrel is said to be Rhode Island's state flower; the revolving doors that shuffle politicians between corporate boards and regulatory bodies and back again. Everywhere I've lived—"developed" world or not—I've seen the continuum of corruption that runs from smoke-filled rooms to the open-and-legal-yet-shocking. But you have to take your hat off to the New York-Boston corridor, where milking the system is a way of life. If the taxpayer is a cash cow, then this is Big Ag.

It's for that reason that I have found myself strangely attracted, like a rubbernecker to a car wreck, to everything having to do with the creation of a Wynn-operated casino complex, the Encore Boston Harbor, in the once rusty, quaint, and relatively sleepy Boston suburb of Everett. 

I liked Everett when I discovered it. It's rough around the edges, but genuine. I had to be there now and then, and I found both a corner bar and a gym I liked. Everett reminded me of the working-class neighborhoods of my hometown Baltimore. First news of a casino project in Everett broke when I arrived in New England in 2011, so I became interested in the natural social science experiment that ensued.

A piece of the development of the Encore project landed in the courts. When Wynn enterprises sought to site a casino in Everett, they offered to buy land from an outfit called FBT Everett Realty, LLC, for $75m. And because Wynn also was looking for a casino license, the real estate transaction drew the attentive oversight of the Massachusetts Gaming Commission.

As anyone who studies development will tell you, these major land acquisitions are always suspect. I remember when Baltimore announced plans to build the twin Ravens and Orioles stadiums in the heart of downtown, and there were rumblings, however futile, about the strangely coincidental land rush that had occurred in the area prior to the announcement. Too many buyers had political connections, and they profited handsomely by flipping their deeds over to the quasi-public stadium projects. That's how economic opportunity works in America, at least for people who pay the lower tax rates for capital gains.

In Massachusetts in 2011, the commonwealth had newly opened itself to big-time, Las Vegas-style gambling, so the commission was under heavy scrutiny to do its due diligence. Though it couldn't prove the precise relationship, as the Supreme Judicial Court explained, the commission suspected that an FBT co-owner was "a convicted felon with possible connections to organized crime": naturally, a red flag in gaming regulation. To its credit, the commission put the brakes on the real estate transaction and conditioned its casino approval on a renegotiation. FBT had to buy out its suspicious stakeholder, and the purchase price was dramatically reduced to $35m.

One minority owner of FBT was unhappy with the new deal and demanded compensation for the reduction. It happened that the same minority owner had bought out the interest of the problematic co-owner and still owed him money. To quell the quarrel and get the deal done, Wynn made a side deal in which it would pay the minority owner $19m, a proportional share of the price reduction that had satisfied the commission.

Wynn didn't pay, and the minority owner sued, alleging breach of contract, common law fraud, and unfair trade practices under the commonwealth's powerful and wide-ranging consumer protection statute, "chapter 93A." Ultimately resulting in the instant case, the First Circuit asked the Massachusetts Supreme Judicial Court to assess the enforceability of the side deal.

The high court opened its analysis with the supreme public policy of America, "The general rule of our law is the freedom of contract" (quoting Massachusetts precedent that in turn quoted the U.S. Supreme Court in Smith v. The Ferncliff (1939)). "However," the court qualified, "it is 'universally accepted' that public policy sometimes outweighs the interest in freedom of contract, and in such cases the contract will not be enforced" (also quoting state precedents).

I just finished a unit of 1L torts in which the class sees the interaction of tort with contract and equity principles in the assumption of risk. Specifically, we see how theories in equity, if rarely, can quash a cause of action or vitiate an affirmative defense. I hasten to clarify that public policy, like equity, is not a rule of law. It's like someone saying to the court "I should win, despite the rule, because that's what's best for society." It's why the judge gets to wear a sharp black robe, sit on a dais, and wield a gavel: to bring human judgment to bear when the usual operation of law would defy common sense. It's why judges cannot be replaced by AI. Yet.

Gaming regulation is among the "core police powers" of the political branches, the court reasoned. And the legislature clearly empowered the gaming commission to ensure "the integrity of the gaming licensing process" with "strict oversight" and "a rigorous regulatory scheme." The $19m side deal was within the scope of the commission's broad mandate. The deal had not been disclosed to the commission and it was inconsistent, the court opined, with the property sale that the commission approved.

The court had little trouble concluding: "Secret deals in violation of the public terms and conditions required for gaming licensure are unenforceable violations of public policy. They place in grave doubt the integrity of the public process for awarding the license, and thereby defeat the public's confidence in that process."

The Encore project has been a powerful economic boost to communities north of Boston, including Everett, delivering an infusion of business in the billions of dollars. The construction phase especially yielded social and economic benefits, creating jobs and opportunity.

Of course, the secondary effects of "sin" businesses such as casinos don't turn up until the projects have been in operation for awhile, and then especially as they age and decline in high-end commercial appeal. To date, there is conflicting evidence on the social impact of Encore with regard to factors such as crime and the environment. For me, the jury is still out on whether north Boston will see a net benefit from Encore in the long term. I hope it does, but I'm skeptical.

Game on.

The case is Gattineri v. Wynn MA, LLC, no. SJC-13416 (Mass. Nov. 3, 2023). Justice Scott L. Kafker wrote the unanimous opinion of the court. The case in the First Circuit is Gattineri v. Wynn MA, LLC, no. 22-1117 (1st Cir. Mar. 22, 2023) (referring questions).

Polisci papers track Ukraine war to Arctic, UN, internet

The war in Ukraine occasioned several papers at last weekend's annual meeting of the New England Political Science Association (NEPSA) in Mystic, Connecticut.

The NEPSA meeting offers an outstanding opportunity to preview cutting edge research presented in a low-stakes and supportive setting. Long-time NEPSA Executive Director Steven Lichtman, a professor of political science at Shippensburg University, is the brilliant maestro, setting the right collegial tone while supervising a rigorous selection process that guarantees top-shelf work.

Rotating location in New England states, NEPSA has become one of those regional conferences that is so highly regarded as to draw participation from across the country and from neighboring disciplines including law. The program is open to faculty and graduate students; law students of mine have participated in the past. This year the program opened two panels to undergraduate researchers. An extremely selective submission process yielded undergraduate presenters fully capable of going toe to toe with working scholars.

Prof. Steven Lichtman, 2016
RJ Peltz-Steele CC BY-NC-SA 4.0

There is scarcely a corner of politics and its study not being reshaped by the war in Ukraine. So it's no surprise that the war motivated many of the papers at this year's NEPSA. For all that I learned from myriad presenters, I thought I might share just a taste of takeaways related to the war.

★

A Ph.D. candidate at the University of New Hampshire (UNH), Tim Hoheneder is thinking about the effect of the Ukraine war on Arctic politics. He explained that Russia assumed the rotating chair of the eight-state Arctic Council just before the full-scale invasion of Ukraine. The United States said it would not participate on the council during the term of the Russian chair, which ends this summer, in 2023. The United States did say it would continue to work bilaterally with other states on Arctic issues.

Now what will become of the council is up in the air. Major issues affecting global security, involving nuclear proliferation, militarization, indigenous rights, and climate change, hang in uncertainty. Hoheneder's paper is "Science Diplomacy as a Neofunctionalist Tool in a Post-Ukrainian Invasion Arctic."

★

A master's student at UNH, Sarah DeSimone is considering how the U.N. Security Council might be made functional since the Russian veto has neutralized any meaningful response to the war. She explained both the long history of attempted Security Council reform and the recent history of failed resolutions on Ukraine. 

The only reform to the Security Council to gain traction has been the recent Liechtenstein "Veto Initiative," DeSimone explained. The initiative modestly would require that a council state explain a veto. DeSimone voiced support for an amalgam of proposals that have been floated before: First, the veto should be prohibited in matters of genocide, human rights violations, and serious violations of international law. Second, in conjunction with the prohibition, an oversight mechanism should preclude countries from voting on matters in which they are directly concerned. 

Without Security Council reform, DeSimone warned, lack of credibility will render the United Nations "obsolete." DeSimone's paper is "Reforms to the Security Council: Salvaging the Liberal World Order by Examining the Crisis in Ukraine."

★

A senior at Providence College and editor-in-chief of the student newspaper, The Cowl, Sarah McLaughlin spent 46 unenviable days immersed in a Russian social media image board, Dvach (Двач). Her findings are fascinating. She discovered a world of hyper-masculine Russian nationalists almost as disgusted with Vladimir Putin as they are with Ukraine. The community evinces nostalgia for a perceived past of conservative values and faults Putin for not living up to anti-western and anti-liberal values. The community opposes the war in Ukraine and the mobilization of Russians to support it, even as participants depict the idealized Russian man as strong, hardworking, and dutiful to country. Animals, especially pigs and monkeys, represent Ukrainians, women, and Putin in demeaning memes.

McLaughlin's paper is "Russia the Bear, Putin the Pig: Russian Nationalism and the Imagined Community of Memes."

 ✪

NEPSA's next annual meeting is slated for spring 2024 in Newport, R.I.  Look for a call for papers by September with a December 2023 deadline.

Employer may not fire for personnel rebuttal, high court holds, even though statute provides no remedy

Pixy.org CC BY-NC-ND 4.0

Reversing a problematic and divided intermediate appellate court decision, the Massachusetts Supreme Judicial Court held in December that an at-will, private-sector employee may not be terminated for exercising a statutory right to rebut negative information in the employee's personnel file.

I wrote here at The Savory Tort about the intermediate appellate court decision in January 2021:

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

The Appeals Court had struggled with the case, deciding it 3-2 on rehearing after an initial 2-1 ruling against Meehan.  I commented then: The outcome was not inconsistent with American courts' general inhospitality to public policy-based claims of wrongful termination.  At the same time, the outcome was discordant with Massachusetts's more liberal disposition on wrongful termination, especially considering the civil rights-protective vein of the rebuttal statute.

The Supreme Judicial Court (SJC) recognized that public-policy constraints on at-will employment termination must be narrowly construed.  But constraint 

has been recognized "for asserting a legally guaranteed right (e.g., filing a worker's compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)" [SJC's added emphasis].... In addition to these three categories, this court subsequently created a fourth category to protect those "performing important public deeds, even though the law does not absolutely require the performance of such a deed." .... Such deeds include, for example, cooperating with an ongoing criminal investigation.

The rebuttal statute fell in the first category, the SJC held.  The trial court and Appeals Court had improperly second-guessed the importance of the statutory right and discounted it for its relation primarily to internal private affairs.  Those considerations bear on the fourth category, the court explained.  The legislative pronouncement is conclusive in the first category.

Even so, the court opined, the right of rebuttal is important, because it facilitates compliance with other workplace laws, "such as workplace safety, the timely payment of wages, and the prevention of discrimination, and nonemployment-related activity, such as those governing the environment and the economy."

While the lower courts were put off by the legislature's seemingly exclusive express remedy of a fine for non-compliance, the SJC regarded the omission of a retaliation remedy as mere failure to anticipate.  "Indeed," the court opined, retaliatory termination "would appear to be sticking a finger in the eye of the Legislature.... We conclude that the Legislature would not have permitted such a flouting of its authority, had it contemplated the possibility."

An employee claiming wrongful termination still has a hard road to recovery.  The court emphasized that causation, connecting rebuttal and termination, may raise a question of fact in such cases, and here on remand.  Moreover, an employee can overstep and forfeit common law protection.  The statute "does not extend to threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal."

The case is Meehan v. Medical Information Technology, Inc., No. SJC-13117 (Mass. Dec. 17, 2021).  Justice Scott Kafker wrote the opinion of the unanimous court.

New England poli sci group announces virtual meeting, extends CFP deadline for faculty, grad students

NEPSA art

The New England Political Science Association (NEPSA) has decided that its spring 2021 annual conference will be all virtual.

The call for proposals (CFP) deadline has been extended to February 19, 2021. NEPSA will convene on April 23 and 24, 2021.  The CFP is open to faculty and graduate students.  I have tremendously enjoyed this conference in past years and found it to be a collegial, inclusive, and supportive environment for scholars both junior and senior, and both political science and interdisciplinary, including law students. 

NEPSA subject-matter sections are: American Politics, Comparative and Canadian Politics, International Relations, Political Theory, Politics and History, Public Law, Public Policy, and Technology and Politics.

Divided court allows employee firing for exercising statutory right to supplement personnel record

Pixy.org CC BY-NC-ND 4.0

An at-will employee may be fired for rebutting an adverse employment action, the Massachusetts Appeals Court held today, despite a state law that specifically empowers employees to add rebuttals to their personnel records.  The decision drew a vigorous dissent from two of the five justices on the rehearing panel.

As my 1L students tire of hearing, we read cases in law school (in the common law tradition) for one of a number of purposes.  For any given lesson, it's important to know which our purpose is, especially when it is to demonstrate the rule by counterexample.  To teach wrongful termination, I have used a federal case, applying Massachusetts law, in which the court is much more generous to the at-will claimant than a state high court typically is.  But today's case proved only the norm.

The instant plaintiff found no relief from the usual rule that, as the Appeals Court quoted precedent, "employment at will can be terminated for any reason or for no reason."  Massachusetts admits of narrow exception to the rule for "well-defined public policy," "preferably embodied in a textual law source."  Think firing a model for taking maternity leave, a claim that resonates with dimensions of both statutory entitlement and civil rights.  Yet even while the plaintiff here pointed to a specific statutory entitlement, the Appeals Court rejected his claim.

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

Meehan's rebuttal was not in the appellate record, the court wrote in a footnote.  From its absence, one might infer that it was not predicated on what the court would regard as worthy public policy.  An employer's "internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception," the Supreme Judicial Court held previously.  "If it were otherwise, our courts would become super personnel departments," the Appeals Court reasoned.

Justice Meade
Mass.gov

It would be hard to conclude that the court's ruling is other than consistent with common law norms.  Many a state court has never seen a wrongful termination claim it liked, at least in the context of at-will employment.  And the notion of utterly "at will" conforms to the American norm of freedom to contract.

At the same time, the ruling seems to undermine the statute.  As a practical matter, an employer asserts many reasons for an adverse personnel action, and an employee's rebuttal answers in kind.  The rebuttal itself is then a viable predicate for termination—"not a team player"—even when the employee alleges, inter alia, an actionable wrong, such as discrimination.  The employee may then complain of discrimination vis-à-vis the precipitating adverse action.  But the employee had that option anyway.  There is nothing to be gained, and everything to be lost, by using the rebuttal statute as a resolution procedure.

Justice Henry
Mass.gov

That was the thrust of the dissent.  "Only the credulous and fools would exercise this right henceforth," Justice Henry wrote of the rebuttal statute.

Meditech admitted that it terminated Meehan solely for writing the rebuttal, something he had a statutory right to do.  Dispute resolution is among the purposes of the statute, Justice Henry reasoned, possibly sparing the Commonwealth an unemployment insurance claim.  At minimum, the personnel record, which might be reviewed by a prospective second employer, is complete with both sides of the story.  Meditech has no apparent, legitimate interest, Justice Henry observed, merely in disallowing rebuttal under the statute.

The dissent concluded:

The result the majority reaches renders the statutory right useless and illusory, and empowers employers to punish employees for doing exactly what the Legislature authorized them to do. Countenancing such a result is wholly inconsistent with a just—or even a sane—employment policy. The majority essentially casts the Legislature as a trickster, creating a trap for unwitting employees that employers now may spring.

The case is Meehan v. Medical Information Technology, Inc., No. 19-P-1412 (Jan. 20, 2021).  Justice William J. Meade wrote the majority opinion, which Chief Justice Green and Justice Vuono joined.  Justice Meade was an appellate attorney in the attorney general's office in the 1990s and deputy chief legal counsel to Governor Mitt Romney in the 20-aughts before going on the bench, and he teaches appellate practice at Suffolk Law School.  

Justice Vickie L. Henry wrote the dissent, which Justice Rubin joined.  Justice Henry was a commercial litigator in intellectual property, product liability, and other matters for more than a decade, and then a senior staff attorney for Gay & Lesbian Advocates & Defenders before her appointment to the bench.  The case was reheard after the initial panel divided 2-1.  The addition of two judges apparently only added a vote for each corner.

Laws suspending driver licenses for fines need reform

Spencer K. Schneider, a 3L at UMass Law and teaching assistant in my Torts I-II classes, has authored an article for the National Lawyers Guild Review.  He examines state systems that suspend driver licenses upon unpaid fines and their perversely circular detrimental impact.  He concludes that constitutional challenges to the systems don't hold water, but that they should be reformed as a matter of sound legislative policy.  Here is the abstract.

Forty-three states have, or previously had, some version of a driver’s license suspension program. These programs are shown to have disastrous financial effects on the lives of those who cannot afford the fines inherent in them. Challenges to such license suspension schemes have been brought throughout the United States but have been largely unsuccessful. Where relief ultimately may be found is in state legislatures or city governments. When those bodies discover that, although these programs are in fact valid and constitutional, many of them have such detrimental and long-term impacts on so many citizens, they ultimately result in more harm than good. This realization has led many states to experiment with changes to, or repeals of, their driver’s license suspension programs with varying success. However, many states still rely on the fines levied by these programs and there is a legitimate argument that the programs are imposed to keep dangerous drivers off the street. Ultimately, this is an issue that arose from legislation and, despite finding its way into the court system, must be solved with legislation.

The article is Spencer K. Schneider, The Wheels on the Bus: The Statutory Schemes that Turn Traffic Tickets into Financial Crises, 77:2 Nat'l Law. Guild Rev. 81 (Summer/Fall 2020).

Supreme Court vacates First Amendment decision, tells lower court to certify negligence question to Louisiana

Mckesson
(HimmelrichPR CC BY-SA 2.0)

A negligence lawsuit blaming Black Lives Matter organizer DeRay Mckesson for injury to a police officer is on hold since the U.S. Supreme Court ordered the Fifth Circuit to certify the problem in tort law to the Louisiana Supreme Court.

I wrote about this case in April.  Unidentified police officer John Doe suffered severe physical injury and brain trauma after being struck in the face by a rocky projectile while responding to a protest-occupation of a Louisiana highway.  Mckesson did not throw the rock; the officer sued in negligence, accusing Mckesson of having created a violent climate as a protest organizer.  Mckesson raised a First Amendment defense, which a divided Fifth Circuit court rejected.

On appeal, the U.S. Supreme Court invoked, if not by name, the doctrine of constitutional avoidance.  The Court vacated the Fifth Circuit decision and remanded.  The Court opined that the Fifth Circuit should have asked the Louisiana Supreme Court whether state negligence law could support liability at all, before engaging with the thorny constitutional problem under the First Amendment.

Both Doe's negligence theory and Mckesson's First Amendment defense are close questions.  Mckesson never countenanced a violent attack on police.  Under conventional tort analysis, it is possible, but not easy, to show that a chain of proximate causation runs intact from a careless defendant, through an intentional, criminal act, to injury to the plaintiff, such that the careless defendant may be held liable for the violence inflicted by the intermediary criminal actor.  Imposing liability in that way obviously raises First Amendment problems when the alleged negligence is part and parcel of free speech and assembly.

Cases of such "negligent incitement" have long been problematic in First Amendment doctrine.  The "Soldier of Fortune cases" over "gun for hire" ads, e.g., Braun, Eimann, are loosely analogous.  Results have varied, and no clear rule has emerged.  Now, in the internet era, the problem has been amplified, because universal access to mass communication has exaggerated the potential for incitement.

I suggest that the Louisiana Supreme Court solve the problem through analysis of duty (or perhaps "scope of liability," if the court wishes to embrace the approach of the Third Restatement of Torts).  Duty is all about public policy, so there is no need to whisper about the First Amendment as a thumb on the scale.  It's no stretch to conclude that the organizer of a protest, even one predicated on civil disobedience, but without specific knowledge of impending violence, does not owe a duty to protect a responding police officer.  Though the Supreme Court wished to avoid the broad constitutional question of a First Amendment defense, the state court may prioritize free speech and assembly in a public policy analysis.

The case is Mckesson v. Doe, No. 19-1108, 592 U.S. ___ (Nov. 2, 2020) (SCOTUSblog).  The opinion was per curiam.  Justice Thomas dissented without opinion, and Justice Barrett took no part.

Springer 'Law and Development' book: Introduction is now free for download

Recently I announced the publication of Law and Development, a new collection of research articles from multi-national and multi-disciplinary perspectives, as well as my own contribution, with Gaspar Kot, on comparative access to private-sector information in South Africa and Poland.  Publisher Springer has now authorized free public download, via SSRN, of the book's Introduction, from the co-editors, Piotr Szwedo, Jagiellonian University, Poland; Dai Tamada, Kobe University, Japan, and me.

Please enjoy our Introduction to Law and Development: Balancing Principles and Values.

Multidisciplinary 'Law and Development' book tackles hard problems from principled perspectives

[UPDATE, March 31, 2020: The Introduction to Law and Development is now available for free download from Springer, via SSRN.]

I am thrilled to announce the publication of Law and Development: Balancing Principles and Values, from Springer, a publication in the Kobe University Monograph Series in Social Science Research (flyer). While I was privileged to serve as a contributor and co-editor, with Professor Dai Tamada (law site), of Kobe University in Japan, this book has been a project of passion for our lead editor, my inspiring colleague and friend, Professor Piotr Szwedo. On the law faculty of the Jagiellonian University (UJ) in Poland, Professor Szwedo serves as head of the OKSPO Center for Foreign Law Schools and co-director of UJ law programs with the Columbus School of Law at The Catholic University of America, and the Université d’Orléans.

Born of an international conference organized by Professor Szwedo at UJ, this ambitious multidisciplinary collection examines the problem of "development" across the world especially from perspectives informed by morality and ethics. Here is the jacket précis:

This book examines the concept of ‘development’ from alternative perspectives and analyzes how different approaches influence law. ‘Sustainable development’ focuses on balancing economic progress, environmental protection, individual rights, and collective interests. It requires a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept found in ethics. ‘Development’ can be considered as a value or a goal. But it also has a normative dimension influencing lawmaking and legal application; it is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker. This research examines how different approaches to ‘development’ and their impact on law can coexist in pluralistic and multicultural societies, and how to evaluate their legitimacy, analyzing the problem from an overarching theoretical perspective. It also discusses case studies stemming from different branches of law.

Prof. Szwedo

Prof. Tamada

In organizing the book's 13 contributed chapters, we envisioned and executed on four threads of approach: (1) conceptualizing development, (2) financing development, (3) development and society, and (4) applied sustainable development.  Scholars, lawyers, and scientists who approach development from diverse professional, geographic, and experiential perspectives all will find compelling inroads in this volume, which ranges from the highest echelons of philosophical thinking about the human condition to the most earthbound problems of how many fish swim in the sea.  With DOI links, here are the contents and contributors:

1. “Law & Development” in the Light of Philosophy of (Legal) History, by Tomáš Gábriš, Faculty of Law, Comenius University in Bratislava, Slovak Republic.
2. Populorum Progressio: Development and Law?, by Christine Mengès-Le Pape, University Toulouse, France.
3. Luigi Sturzo’s Socio-economic Development Theory and the Case of Italy: No Prophet in His Homeland, by Flavio Felice, University of Molise, Campobasso, Italy; and Luca Sandonà,University of Trieste, Trieste, Italy.
4. International Financial Aid, Catholic Social Doctrine and Sustainable Integral Human Development, by George Garvey, The Catholic University of America, Washington, D.C., USA.
5. Common but Differentiated Responsibilities for Developed and Developing States: A South African Perspective, by Zuzana Selementová, LL.M. (Cape Town), Valouch, and Attorneys-at-Law, Prague, Czech Republic.
6. Must Investments Contribute to the Development of the Host State? The Salini Test Scrutinised, by Dai Tamada, Graduate School of Law, Kobe University, Japan.
7. Water: The Common Heritage of Mankind?, by Franck Duhautoy, University of Warsaw, Centre of French Civilisation, Poland.
8. Private-Sector Transparency as Development Imperative: An African Inspiration, by Richard Peltz-Steele, University of Massachusetts, North Dartmouth, USA; and Gaspar Kot, Jagiellonian University, Kraków, Poland.
9. Between Economic Development and Human Rights: Balancing E-Commerce and Adult Content Filtering, by Adam Szafrański, Faculty of Law and Administration, University of Warsaw, Poland; Piotr Szwedo, Faculty of Law and Administration, Jagiellonian University, Kraków, Poland; and Małgorzata Klein, Faculty of Geography and Regional Studies, University of Warsaw, Poland.
10. A Comparative Law Approach to the Notion of Sustainable Development: An Example from Urban Planning Law, by Ermanno Calzolaio, University of Macerata, Italy.
11. Challenges Concerning ‘Development’: A Case-Study on Subsistence and Small-Scale Fisheries in South Africa, by Jan Glazewski, Institute of Marine & Environmental Law, University of Cape Town, South Africa.
12. Economic and Social Development in the Republic of South Africa’s New Model of Mineral Rights: Balancing Private Ownership, Community Rights, and Sovereignty, by Wojciech Bańczyk, Jagiellonian University, Kraków, Poland.
13. Sustainable Development as a New Trade Usage in International Sale of Goods Contracts, by Daniel Zatorski, Faculty of Law and Administration, Jagiellonian University, Kraków, Poland.

An introduction from the editors ties the work together.  Previews (with abstracts) of each chapter can be viewed from the book's home page at Springer (or from the DOI links above), where also a flyer about the book can be downloaded.  Working on this project has been a tremendous education for me on law and development.  My congratulations and deep gratitude extend to Professor Szwedo, Professor Tamada, and every one of the contributing authors.

Northwestern Law celebrates Professor Marshall Shapo [POSTPONED]

Professor Marshall Shapo is a dear mentor and a giant of American tort law and public policy.  I am selfishly disappointed that I cannot be in Evanston on April 17, but I wholeheartedly join in the celebration of this special soul.

Program and registration at Northwestern Law.

Teachable torts: Halloween haunted houses strain hallowed American right to make poor choices

As the sun sets in the U.S. East, I was prepared to let Halloween slide by on the blog, even though so many great tort-related items perennially crop up, and an eagle-eyed 1L Jason Jones sent me an excellent story about the super creepy McKamey Manor (YouTube) haunted house in Summertown, Tennessee (Guardian video coverage four years ago).  Then Professor Christine Corcos (of Media Law Prof Blog, via TortsProf List) alerted me to WaPo coverage of McKamey, and Ronny Chieng incorporated McKamey into his Halloween edition of "Everything is Stupid" on The Daily Show (here for the blog, not the classroom).

The "petition" referenced in the news coverage (linked above, top) refers to a Change.org petition, not a legal action.  Yet.  The case would be useful to consider tort claims, such as the infliction of emotional distress, as well as defenses, such as consent and assumption of risk, vitiation on public policy grounds, and the American ethos of personal responsibility.

Thanks to my TA, here's an even better item, funny without the dark angle, bringing a lawyer into the picture: the first two segments of Nathan For You s1e05.

Happy Hallows' Eve.

CFP: New England Political Science Association to meet in Mystic, Conn., April 2020

The New England Political Science Association has released its CFP for the annual meeting in April 2020, which will take place in Mystic, Connecticut.  The NEPSA program always offers a buffet of intriguing work in political science and public policy.  Though attendees are overwhelmingly PhDs and PhD candidates, they've always warmly welcomed me and my modest JD.  Find this call and read more about NEPSA at its web home.

---

2020 ANNUAL MEETING

Hilton Mystic, Mystic, Connecticut

April 23-25, 2020

CALL FOR PROPOSALS

The New England Political Science Association invites proposals for papers, panels, and roundtables to be presented at its 2020 Annual Meeting, which will convene April 23-25 at the Hilton Mystic in Mystic, Connecticut. Panels will be offered on Friday, April 24, and Saturday April 25; a pre-conference welcome event will be held on the evening of Thursday, April 23.

In NEPSA’s 72^nd year, we continue to welcome a broad array of panel and paper proposals reflecting the various subfields of our discipline.  NEPSA has the following dedicated sections:

• AMERICAN POLITICS

• COMPARATIVE AND CANADIAN POLITICS

• INTERNATIONAL RELATIONS

• POLITICAL THEORY

• POLITICS AND HISTORY

• PUBLIC LAW

• PUBLIC POLICY

• TECHNOLOGY AND POLITICS

Proposals from undergraduates will once again be considered for presentation.  Undergraduate proposals will be evaluated on a competitive basis by a special Undergraduate Proposals Committee.  Accepted proposals will present on panels dedicated to undergraduate research; presenters must be accompanied at the conference by a sponsoring faculty member.

Proposals for individual papers, full panels, and roundtables – as well as offers to serve as panel chairs and/or discussants – may be submitted via the NEPSA website: www.nepsanet.org. Please scroll to “2020: CONFERENCE” in the menu bar for the drop-down links to submit proposals. Except in special situations, individuals are restricted to two paper presentations.

The deadline for submissions is Friday, November 29^th, 2019.

Questions about the conference and requests for further information may be directed to NEPSA’s Executive Director and Program Chair, Steven Lichtman (Shippensburg University): sblichtman@ship.edu.

'Lights, Camera, Execution!': Political scientist Helen Knowles co-authors new book on capital punishment and popular culture

A new book by poli sci prof and legal researcher extraordinaire Dr. Helen Knowles, SUNY Oswego, has hit the shelf.  It explores the dark edge of the border where popular culture and criminal justice meet.  In this sense it is partly reminiscent of John D. Bessler's unsettling Death in the Dark: Midnight Executions in America (Northeastern 1997) (Amazon).  Supreme Court followers will remember Dr. Knowles for her landmark study of Justice Kennedy in The Tie Goes to Freedom (2009 & updated 2018) (Amazon).

In Lights!, Camera!, Execution!: Cinematic Portrayals of Capital Punishment (Lexington Books 2019) (Amazon), Knowles and co-authors Bruce E. Altschuler and Jaclyn Schildkraut explore the interplay of popular portrayal of the death penalty with the real thing, considering the implications of mass media for policy-making when, literally, lives are on the line.  Here is the publisher's abstract:
 

Lights, Camera, Execution!: Cinematic Portrayals of Capital Punishment fills a prominent void in the existing film studies and death penalty literature. Each chapter focuses on a particular cinematic portrayal of the death penalty in the United States. Some of the analyzed films are well-known Hollywood blockbusters, such as Dead Man Walking (1995); others are more obscure, such as the made-for-television movie Murder in Coweta County (1983). By contrasting different portrayals where appropriate and identifying themes common to many of the studied films – such as the concept of dignity and the role of race (and racial discrimination) – the volume strengthens the reader’s ability to engage in comparative analysis of topics, stories, and cinematic techniques.Written by three professors with extensive experience teaching, and writing about the death penalty, film studies, and criminal justice, Lights, Camera, Execution! is deliberately designed for both classroom use and general readership.

The Adventures of Mass. App. and the 700 Gold Coins

                                                       pnging.com CC BY-NC 4.0

The Massachusetts Appeals Court dove into foreign law and comity today, leaving "700 gold coins" in the possession of an Iranian divorcée.  The case is No. AC 16-P-1131 (Mass. App. Ct. Sept. 25, 2018).

Family law is not my area, but this decision from Mass. App. presented a modest if compelling problem in comparative law.  The divorce of husband and wife precipitated litigation in Iran over the dissolution of the marriage contract and also in Massachusetts over the division of property.  Central in the dispute were "700 gold coins," representing a mahr--a gift from groom to bride in Islamic marriage tradition.

I put "700 gold coins" in quotation marks because I don't think there need actually be 700 gold coins.  The mahr represents a quantifiable asset that is expected to grow in value with the duration of the marriage, thus, at least in theory, providing a divorcée with a time-commensurate award in case of separation.  According to the husband's testimony in Massachusetts court, in event of divorce, the wife may retain the entirety of the mahr, but may receive nothing more.

Despite that testimony, the husband contested award of the mahr in Iranian courts.  He lost at two levels, in trial court and intermediate appellate court in Tehran.  He told the court in Massachusetts that he was appealing to the Supreme Court of Iran.

Meanwhile the trial judge in Massachusetts divided the couple's property assets within U.S. jurisdiction more or less evenly, faithfully to Commonwealth law.  The husband showed that an inherited property in Tehran was wholly under the control of, and generating income for, the husband's mother, so the property was left with the husband as not entwined with the marriage.  But the court awarded the wife an equal share of the appreciation of the property over the course of the marriage.  Other assets were divided evenly.  The court regarded the mahr as an asset of the marriage, so divided it equally as well.  On that latter point, the appellate court reversed.

The principle of comity in international law demands that Massachusetts respect the judgment of a foreign court if it does not run contrary to domestic public policy.  The appellate court found no public policy imperative that would warrant disregard for the Iranian court ruling on the disposition of the mahr.  In the view of the Iranian lower courts, the mahr was the sole property of the wife.  Even if the Iran Supreme Court reverses on that question, no American public policy principle would be offended.  So the Massachusetts trial court abused its discretion in substituting its judgment for that of the Iranian courts on the mahr.  All other rulings of the trial court, including the ruling on the appreciation of the Tehran property, were affirmed.

The courts seemed able to resolve the question presented without expert testimony on Iranian law.  The appeals court relied on the treatment of mahr in a prior New Jersey decision.  Were it necessary, rule 44.1 of both federal and commonwealth rules of civil procedure allows the unusual step of expert evidence on questions of law.  That's fun, because legal scholars get to be experts in court, like experts from other disciplines.  Usually we're relegated to the sidelines.

The opinion was written by Associate Justice Sydney Hanlon, a graduate of Brown and Harvard Law.  Her skills include training for court personnel on dealing with domestic violence, training she has given in central and eastern Russia, as well as the United States, as part of rule-of-law work. 

The court's decision on comity comes at a curious time, with the United States tuning up sanctions on Iran and the EU negotiating with Iran to the express end of undermining U.S. sanctions.  Of course domestic claims playing out against the backdrop of U.S.-Iranian foreign policy is no new thing in American tort law.  See The Adventures of Tort-tort and the Frozen Assets.

3Ps for 1Ls: Advice for the new law student

We have 96 new faces at UMass Law School this fall semester.  New students often ask for advice: how best to prepare for class?  There is no easy answer.  That is, the answer is easy to understand, but there is no getting around the fact that effective law school work is hard.  Here are my three Ps for 1Ls: preparation, perspiration, and postparation.

The first P is preparation.  You have a homework assignment and need to do it.  Especially in a large class, you will be able to hide, so I can’t guarantee accountability.  But not doing the assignment will be your loss.  So many students find themselves too far behind late in the semester, unable to compensate for poor choices early on.  That deficit can become amplified throughout law school.  When class doesn’t cover every aspect of an assignment—we skip cases, or don’t engage with all parts of a case—the student can be misled into thinking that the entirety of an assignment is not important and that the game is in trying to pare down assignments to just what one needs to know.  Make this mistake at your own risk.

Learning in law school is an organic and partly subconscious process.  When you read, for example, an appellate opinion, you are learning much more than what we have time to discuss in class: about jurisdiction, motion practice, client representation, style of argument, standards of review, judicial temperament, and legal writing techniques—not to mention overtones of politics, economics, and culture.  Reading such content across the 1L curriculum is your inculcation of American legal culture, so-called “thinking like a lawyer.”  If you opt out of this process, you will find yourself increasingly lost in law school in a way that will be difficult to put your finger on.  The materials assigned to you have been carefully selected and edited to communicate lessons on the face of the text and between the lines.  Don’t waste the opportunity; you’re paying for it.

The second P is perspiration.  You don’t have to worry about this, because it happens naturally: sweating through class.  Students often are frustrated at the start of law school.  What you thought you prepared thoroughly turns out not to answer the questions asked.  The professor seems not to be giving you “what I need to know.”  Questions often are answered with more questions.  If that’s not often happening in your law school class, then you’re not getting your money’s worth.

Legal education is not like other programs in higher education.  Contrary to popular belief—a belief held even by some misguided university administrators—the job of a law professor in a core course is neither to prepare you for the bar exam nor to prepare you for practice—at least not directly.  To be clear, we calculate that what we do in a core course advances you toward those important goals.  But our aim is not so narrow and not so shallow.  That inculcation of American legal culture again: that’s our aim.  If you can memorize rules and learn IRAC techniques of legal analysis, then you can pass the bar exam.  You don’t have to go to law school for that; you certainly don’t need year-long, five- or six-hour classes for that.  As for the practice of law, that’s much more than we can do in any one class.  The practice of law will be the culminating result of your inculcation of legal culture.  This is the archetype of the whole that is greater than the sum of its parts.

In legal education, the job of the professor is to help you help yourself.  The student bears responsibility for learning.  The process is one of much investment, trial, and often, error and correction.  The professor shows the way through assignments and class work, sometimes correcting the student’s course.  The professor supports you with formative tools; an exam is one of those.  The professor cannot do the work for you, and the professor’s job is not to make the road easy or smooth.  Sometimes a student struggles in dialog with the professor in class and is embarrassed.  There is no cause for embarrassment.  If the student struggled for failure to prepare, then one’s energy would be spent best by circling back to the first P.  If the student struggled because it took time and investment to work toward a productive answer, then the struggle should be worn as a badge of honor.  This is the archetype of growth through adversity.

The third P is postparation.  I’m not the first to use the term.  In legal education, it’s the work you do after a class, related to that class.  As a general matter, you should budget the same amount of time for preparation and postparation.  Both are critical; the learning process is only halfway done when class ends.  Postparation is the time to review what you learned; to pick up the pieces of what you misunderstood or mis-prioritized; to identify remaining knowledge gaps that you will seek to fill by consulting study aids, peers, tutors, TAs, professors; and to build your newly acquired understanding into a comprehensive recall system going forward.  An immediate goal of postparation is to outline a review for the final exam.  By semester’s-end reading days, it will be too late to outline effectively for all of your courses.  More importantly, though, postparation is reinforcement.  Ample empirical research in education has demonstrated that knowledge is committed most thoroughly and fluidly to long-term recall through multiple engagements—at least three.  If you’ve already invested well in the first two Ps, don’t throw away that investment by skimping on the third.

Law school is hard work.  It involves the training of your mind in a new way of approaching problems—not just legal problems, but social and economic problems of public policy.  It takes times and patience to train the mind in a new discipline.  The speed of this acculturation is not necessarily a function of intelligence nor purely a function of determination.  Legal acculturation changes a person, often with collateral ramifications for social, psychological, and even physical health.  Working to the endgame can nevertheless prove worthwhile.  The law is a powerful tool for those who would shape our world.  

Suggested Further Reading:

• Andrew J. McClurg, 1L of a Ride: A Well-Traveled Professor's Roadmap to Success in the First Year of Law School (3d ed. 2017) (Amazon).
• Helene Shapo & Marshall Shapo, Law School Without Fear: Strategies for Success (3d ed. 2009) (West Academic).