News reports heroicize resistance to robbery, but storeowner's murder counsels common law wisdom

Mahaseth and his wife
(posted to Twitter by Sam Smink, WHDH 7 News)

A man was charged in early November for fatally shooting a Fall River, Mass., convenience store owner.

The murder of Stop N Save owner Lal Kishor Mahaseth in October shocked the Fall River community, near where I live in eastern Rhode Island.  But the circumstances that gave rise to it are all too familiar in Massachusetts south coast cities.

To help my Torts I class wrestle with the interrelated defenses of self, other, and property, I sometimes show a video of a local convenience store owner who fought back against would-be robbers.  When the viewer knows that no one was seriously hurt in the end, the video can be funny, while stirring serious conversation on matters such as tort doctrine, "stand your ground" laws, and the expectations of the social contract in the unique American culture of guns and personal responsibility.

Sadly and oddly, there are many videos from which to choose for this exercise, even limiting the search to nearby New Bedford, Mass.  My favorite video dates to 2012, when owner-operator Nicholas Dawoud turned the tables on assailants at the St. Elias Mini Market.  This story from WJAR has it all: robbery turned to personal threat; the frustrated defender, informed by past offenses, erupted; and other local customers joined the fray.

The tragedy in Fall River layers the problem with an added complexity.  Do news stories that glamorize defending locals incentivize a wrong choice?  Surveillance video in the Fall River case reportedly shows that 54-year-old Mahaseth resisted his armed assailants, at one point throwing a chair at them.  Does citizen frustration with failed policing in stressed economic times justify a different response to the problems of privileging defense?

Historic common law norms favor life over property in all circumstances.  The result is a familiar law school hypothetical with which students often struggle: the rightful owner of property has no privilege to commit personal attack to defend against threatened violence to dispossess, as long as the threat is merely contingent (albeit often unprovably so in real life) on the owner's refusal to surrender.  The theory is that no one will be hurt, and the wronged property owner can resort to assistance by proper authorities.

However, owing to the powerful American ethos of property and personal responsibility, the historic common law result is as likely to be excepted as applied, in practice.  The glamorization of physical defenses of property such as Dawoud's reinforces the incompatibility of the common law logic with many Americans' thinking.

Mahaseth, who was born in Nepal and earned a degree there in education, is survived by his wife and three children, The Herald News reported in October.  Prosecutors charged 37-year-old Nelson F. Coelho with murder, attempted armed and masked robbery, and carrying an illegal firearm, Mass Live reported in November.

[I acknowledge a kind note of Prof. Volokh, who aptly observes that non-deadly force in defense of property is permitted by common law.  I admittedly conflated defense by force at all, as I suggest, or fear, that the nuance is lost on the aggressor who responds violently, and potentially fatally.]

Advice for New Law Students, 2019 Edition

New law students, allow me to refer you to and to recommend my 3Ps for 1Ls (2018).

This morning my pastor preached on Proverbs 15:31-33.  It occurs to me that the teaching, which deals with spiritual maturation, is especially appropriate and extrapolatable to the start of the school year, for us all, teachers and students, of any level, and, to be sure, of any faith.  Here's the NIV:

³¹ Whoever heeds life-giving correction
    will be at home among the wise.

³² Those who disregard discipline despise themselves,
    but the one who heeds correction gains understanding.

³³ Wisdom’s instruction is to fear the Lord,
    and humility comes before honor.

Pastor Kim pointed out that there's a difference between a "wise guy" and a wise person, and the latter takes work.  (Aug. 18.)  Verse 32 is especially intriguing: "[O]ne who heeds correction gains understanding."  

The words for "discipline" and "correction" in verse 32 vary with translations.  But I think it's fair to say (not being a scholar of these things) that the Hebrew words put a little more rebuke and reproof into the former and a little more instruction and rectification into the latter.

As is often the case with Proverbs, this is good advice that goes beyond faith and has application in commonsense life.  In our academic pursuits, we should always be open to correction.  Pastor Kim laid out correction, even rebuke, as sine qua non of learning and growing.

Pastor Kim also pointed to the word "humility" in verse 33.  The antithesis of pride, humility renders us susceptible of correction, and therefore ready to grow in knowledge, intellect, and wisdom.

Happy new academic year!  Be humble and get wise.

My Summer Book Report

I squeezed in some leisure reads this summer:

• Yuval Noah Harari, Homo Deus.  Yes, I drank the Harari Kool-Aid.  I am a true believer. Frightfully enjoyable stuff.  Sapiens is on my desk now.
• Ian McEwan, Machines Like Me.  Poor Ian McEwan (Atonement) has taken it on the chin from scifi fans for daring to dabble in the genre in this thought-provoking book that I quite adore.  Sure, the basic question of "Data"'s humanity (cf. ST:TNG) is trodden territory, but give a guy some credit for doing his homework and bringing his signature writing flair to the table in this page turner.  It's a far better book than Solar.  We don't talk about that.
  
• David Sedaris, Calypso.  Unfathomable how his books go from best to even better.  You must have David read you his audiobooks. 
• Bryan Stevenson, Just Mercy: A Story of Justice and Redemption.  Essential reading for the legally inclined.  Can’t wait for the movie.  Three words: Michael. B. Jordan!
• Luis Alberto Urrea, The House of Broken Angels.  For my fellow book group member who’s a LatAm aficionado, I am willing to revisit the trippy genre of my undergrad lit major once per year.  It’s always a, um, magic carpet ride, if you will.

And here is the most interesting stuff I read this summer, professional edition.  These are the categories!

·         Torts

·         Free Speech, Freedom of Information, and Privacy

·         Legal Education

·         Popular Culture

·         Self-Improvement

Torts

Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59 (on SSRN).  OK, so maybe I didn’t actually read this 65-page paper.  Instead I read about it, and who could do otherwise?, when Anthony Sebok at Cardozo Law wrote such a great review for JOTWELL.  Abraham and Kendrick call for abandoning the Restatements’ wearisome struggle to chart the contours of affirmative duty.  Instead they would take what I would describe as a more European approach, looking at duty, affirmative or otherwise, as a function of risk creation.  I do think this approach has a bead on the doctrinally drifting direction of duty from the Second to Third Restatements, so maybe this is the future.  Sebok aptly observes that this kind of thinking jives with Stephen Sugarman’s proposed merger of intent and negligence.  Fortunately I’m less than 20 years from retirement, because I fear that by that time, torts will just be a squishy blob of relativistic uncertainty not unlike the inside of an atom.  Teaching that will be for younger minds.

Free Speech, Freedom of Information, and Privacy

Enrico Bonadio & Nicola Lucchi, Copyright and Pornography, in Non-Conventional Copyright: Do New and Non-Traditional Works Deserve Protection? 418 (Enrico Bonadio & Nicola Lucchi eds. 2018) (SSRN).  Copyright.  Pornography.  You do the math.  Seriously, worth a read, and informative multinational perspective.

Adam Candeub, Nakedness and Publicity, ___ Iowa L. Rev. ___ (forthcoming 2019) (SSRN).  Adam Candeub at Michigan State Law explores the right of publicity as a revenge-porn remedy.  And why not?  Tort and IP’s disfigured offspring does so much else….

Megan Deitz, Note, A Crime Remembered: The Possible Impact of the “Right to be Forgotten” in the United States for Crime Victims, Criminal Defendants, and the Convicted, 9 Ala. C.R. & C.L. L. Rev. 197 (2018).  Kudos, Megan Deitz, J.D. U. Ala. ’18.  This is what I was talking about.  Ban the box is great, but it’s not going to get us there.  And to think that I found this article through an AEJMC newsletter…  heresy!

Anthony L. Fargo, Protecting Journalists’ Sources Without a Shield: Four Proposals, 24 Comm. L. & Pol’y 145 (2019) (abstract at T&F).  Tony Fargo at Indiana University-Bloomington has pursued a range of interests in his career—he’s the founding director of the Center for International Media Law and Policy Studies—but all the while remained the national authority on reporter’s privilege.  With a federal shield law a long time not coming, this articles explores alternatives in (1) whistleblower protection, (2) government transparency to disincentivize leaking, (3) legal protection for anonymous sources, and (4) encryption tech.

Giovanni De Gregorio, Secret Filming and the Right to Inform Under an European Constitutional Perspective: The Case of Alpha Doryforiki v. Greece, 2:2 Rivista di Diritto dei Media 410 (2018) (SSRN).  I’m a fan of European privacy law, but even the most committed fan has to admit that it has generated some absurd results.  Count among them the notion that investigative journalists secretly recording corruption run the risk of violating politicians’ privacy rights.  Giovanni De Gregorio reviews the latest case law.  For heaven’s sake, no one tell the bureaucrats in Texas (see Texas v. Doyle, infra).

Thomas Healy, Anxiety and Influence: Learned Hand and the Making of a Free Speech Dissent, 50 Ariz. St. L.J. 803 (2018) (SSRN).  The relationship between Judges Hand and Holmes, and especially Hand’s slow-cooking influence on modern First Amendment jurisprudence as a result, has been the intriguing study of many writings before, Healy’s included.  Nevertheless, in this compelling essay, Thomas Healy at Seton Hall Law here revisits the subject for a close look, laying out the timeline and examining exactly what Holmes’s evolving position took and did not take from Hand’s earnest offerings.

Matteo Monti, Automated Journalism and Freedom of Information: Ethical and Juridical Problems Related to AI in the Press Field, 1:1 Opinio Juris in Comparatione: Studies in Comparative and National Law (2018) (SSRN).  I am not a fan of the trend that puts “and AI” after everything, and voila!, new article, new theory, new field of law, new main dish.  All the same, this article on AI implications for journalism, with an especial eye to the problem of tort liability, is a neat, thoughtful, and very readable roundup from an unexpected source.  Don’t be confused by the title: in American parlance, this is more about free speech, or free flow of information, not FOI in the access sense.  Matteo Monti is a Ph.D. candidate at the Institute of Law, Politics, and Development of the Scuola Superiore Sant’Anna, a public university in Pisa.

Let's burn some books, Dark Ages style! And maybe a philosopher, too.
(Metropolitan Museum of Art, c.1515–27, Purchase, Joseph Pulitzer Bequest, 1917.)

Ada Palmer, How #Article13 is Like the Inquisition: John Milton Against the EU #CopyrightDirective, BoingBoing, Mar. 24, 2019.  This.  Is.  Brilliant.  This short essay should be required reading for every human being with an internet connection.  Don’t let the title’s narrow references to copyright and the EU throw you off; the implications of this piece are breathtaking.  Ada Palmer, University of Chicago history professor and science fiction writer, analogizes internet content filtering—the kind that everyone now is clamoring for Google, Facebook, and Twitter to double down on—to the very press licensing that earned John Milton’s critical condemnation in the Areopagitica, circa 1644.  It’s a downright terrifying proposition that leaves me wondering whether our best intentions are not already about the industry of turning the internet into the most repressive thought regime in the history of human civilization.  Best not read just before bed.

Texas v. Doyle, No. PD-0254-18 (Tex. Ct. Crim. App. Feb. 27, 2019) (via Texas Tribune).  I’m just going to say it, because we’re all thinking it, and something needs to be done: there’s something wrong with the water in Texas.  This case is the latest in what’s going on a decades-long saga of First Amendment challenges to the Texas Open Meetings Act (OMA).  You read that right: public officials are claiming that the open meetings act violates their First Amendment rights.  It would be funny, except they won.

Admittedly and rightly, the First Amendment calls for heightened scrutiny of criminal laws (and tort law) when violation is accomplished only by First Amendment-protected activity, such as speech.  Texas officials have long and fruitfully argued that the criminal-enforcement provisions of the OMA deprive them of their First Amendment right to communicate with one another.  Specifically, they contest the vagueness of applying the OMA to “meetings”—such as serial, or “daisy chain,” communications—alleged to subvert the OMA.

First Amendment problems in criminal law are often overcome by mere scienter; ask Michelle Carter’s counsel about that.  But it’s famously difficult to prove intent to subvert a freedom of information act, so transparency advocates have fought for enforcement mechanisms that operate shy of criminal intent.  I honestly don’t know whether this problem in Texas resulted from overzealous enforcement or opportunistic politicians in smoke-filled rooms, but the nonsense has got to stop.  I’ve seen OMA violations in other states, and I’ve seen innocent non-compliance, and I’ve never been confused about the difference between the two.

Legal Education

Lawrence J. Trautman, The Value of Legal Writing, Law Review, and Publication, 51 Ind. L. Rev. 693 (2018) (SSRN).  A business law professor at Western Carolina University, Lawrence Trautman capably offers this hefty opus, the latest entry in the legal-scholarship-matters genre.  The addition is welcome, as if more evidence should be needed to refute the snarky, anti-intellectual, and ultimately counter-factual rhetoric about the uselessness of legal scholarship (much less legal writing).  (See my own missive of some years ago for background, hat tip at UMass Law Review and Steve Zoni.)  In his abstract, Trautman “hope[s] this Article may become a required reading as one of the first assignments for all incoming first-year law students, or even before any classes begin.”  I’m down with that, but we might need an abbreviated version.

Popular Culture

Charles Duhigg, The Real Roots of American Rage, The Atlantic, Jan./Feb. 2019.  It goes without saying that everything in The Atlantic, my favorite magazine, is worth reading.  But my wife thought to point out this article to me.  I’m trying not to read too much into that.  Pulitzer-Prize winner Charles Duhigg takes a deep dive into outrage in our present social and political environment—newly salient upon the Dayton and El Paso shootings.  Building out from some groundwork in psychology by UMass Amherst’s James Averill, Duhigg establishes that ignoring our social anger or suppressing it is maybe the worst thing we could do.  He explores research that shows instead a possible way forward.

Self-Improvement

Jon Acuff, Do Over: Make Today the First Day of Your New Career (2015).  Just a couple years ago, I discovered Jon Acuff.  Yeah, I know, I got there late.  Anyway, I read the free preview, chapter 1, of his 2015 book, Do Over.  You can too.  I’m not going to read the rest, because I more or less like my job (underpaid), and I’m not really the self-help-reading sort.  Nevertheless, I liked this, as I seem to like just about everything Jon Acuff writes and says.  He makes me smile.