Let's put democracy out of its misery

Democracy ain’t all that. 

That must be what Reince Priebus has been thinking this year.  The possibility has been on the mind also of author and professor Jason Brennan, of Georgetown University.  Brennan is touring New England this week to talk about his new book, Against Democracy.  I knew of Brennan from one of his earlier works touting my faith, Libertarianism: What Everyone Needs to Know.  This week I had the good fortune to meet him in Providence, thanks to the Rhode Island Federalist Society.  On my commute this morning, I heard that he’ll be on WGBH’s excellent Innovation Hub this week. 

Brennan’s thesis in short is that when we talk about how best to select our leaders in human society, democracy might not be the endpoint and high point of human achievement.  He offered a simple thought experiment:  Imagine a professor instructs students that instead of grading exams on the usual A-F merit system, each person in the class will get the same grade, an average of everyone’s performance.  No surprise, students don’t study and perform poorly.  The incentive for each individual to do well is diminished along with the risk that poor preparation will be reflected in any one person’s grade.

Brennan explains that the same dynamic is at work in democracy.  If any one person’s vote is vastly unlikely to have an impact on the general election, then the individual has only weak, and largely symbolic or emotional, incentives to become informed and vote intelligently.  Surveys of how well informed voters are sadly support this thesis, with voters performing only about as well as chance would predict in answering simple multiple choice questions about politics.

What’s better than democracy?  Brennan isn’t shilling for any model, but provided a compelling and fair tour of the possibilities.  He pointed out for one example that simple gambling—imagine betting on the next President of the United States, if the model could be translated into politics—is a rather good predictor of outcome.  The gambler has skin in the game the way a voter does not, so has a proportionate incentive to be well informed.  Other potential models would jettison one person, one vote in ways that would reward better informed voters with greater influence.  I was reminded of my “oligarchy of the intelligentsia” phase when I studied politics at university.

A model I found enchanting, maybe because of its cool name, is “the Simulated Oracle.”  Imagine that along with a person’s vote, we collect also some basic demographic data and even administer a short quiz on political know-how.  With large enough data sets, we could employ the magic of statistics to control variables and correct for self-serving biases.  Factors such as race and gender, the community I live in, and my wealth can be predicted to evidence self-serving biases in my voting behavior, not necessarily the vote that a more altruistic me might cast.  The Simulated Oracle can control variables and correct for irrational or unfair biases, transforming my vote into a hypothetical ideal, the vote my better self would cast.  Weight everyone’s votes accordingly, and we might get a result that compensates for individual rent-seeking.

The mythology of democracy is emotively powerful in our society today, shaping how we define ourselves and our ideals.  But the U.S. Constitution—in, for examples, life tenure in the Article III courts, a republican representation system, and the original method of selecting senators—was designed to temper the risky excesses of pure democracy.  Moreover, the framers intended the Constitution to be amended.  There is no reason to think that progress means evolution toward pure direct democracy.  Remember Ross Perot suggesting instant home voting on contemporary issues?  Today that sounds like a good way to run Dancing with the Stars, and not so good a way to make foreign policy, tax policy, or really to do anything important.

Rather, we are engaged, or should be engaged, in an ongoing process of perfecting the organization of human society.  It’s not so strange to imagine that democracy as we know it now is just one stop on our journey.

Brennan is awash with fascinating data about the American electorate, and I’ll share just one item.  Turns out that people who self-identify with political third parties, such as libertarianism, are among our most informed voters. 

Am I blushing?

'Goliath' bursts onto Amazon scene

Tonight marks the premiere of Goliath on Amazon TV/Video.  Billy Bob Thornton, a native of Bill-Clinton-"Boyhood Home" Hot Springs, Arkansas, stars as a tort lawyer, presumably our David, in the saga of a wrongful death lawsuit against big-money interests.

The story line is far from unprecedented, but my expectations are high.  This show comes to us from producers David E. Kelley and Jonathan Shapiro.  We have Kelley to thank for a pantheon of my most beloved TV lawyers, including Arnie Becker, Douglas Wambaugh, Ally McBeal, Alan Shore, and Denny Crane.  Jonathan Shapiro has been a key writer behind some of those characters, having worked on James Spader projects from The Practice to The Blacklist.

Goliath comes at a good time, as the election cycle has heightened American angst about dysfunctional institutions.  With the Supreme Court opening its new term with only eight justices, Citizens United and the role of wealth in politics looms large over the weird dynamics playing out in all three branches of government right now.  When Kelley and Shapiro appeared at the American Bar Association Annual Meeting in August to talk about Goliath, they said that dysfunction in the civil litigation system would be a central theme in the new show.  The trial, figurative and literal, of protagonist Billy McBride (Thornton) would expose the impact on our justice system of dramatic resource disparities between individual plaintiffs and "Goliath" corporate defendants, as well as the related, gradual extinction of our jury system.  I'll paste below my tweets from that event, which convey a flavor of the presentation.

Reviews of the show so far are positive, if guarded.  The consensus seems to be that the haggard lawyer fighting for justice and thereby his own redemption is a tired cliché.  Yet the Kelley/Shapiro-led execution of the show and the small-screen mastery of Thornton--whose understated lead as Malvo in TV's Fargo s1 was a morbid joy--make Goliath irresistible viewing nonetheless.

I'm tied up this weekend with a couple of projects and might not be able to binge Goliath off the bat.  So no spoilers!

--

Kelley & Shapiro at ABA (Aug. 2016)

My tweets from ABA Annual, Aug. 5:

• #DavidEKelley, Jonathan Shapiro talk forthcoming #GoliathTVseries, will be civil justice story
• US courts are "rigged" against little guy, says #DavidEKelley, lost touch w/jury system per deTocqueville #ABAAnnual re forthcoming #Goliath 
• #DavidEKelley sees audience as character in legal TV, "town crier" role; sounds like #AlanShore's conscience was us #ABAAnnual #BostonLegal
• After #BostonLegal Scalia character married 2 men, #DavidEKelley ran into real #Scalia; Justice knew, mentioned it #ABAAnnual #gaymarriage 
• Like Pres Lincoln, "Americans love law bc it's where every story can be told" :Jonathan Shapiro #ABAAnnual #lawinpopculture 
• Civil parallel to "CSI effect": #TrialAttorneys shd worry abt jurors used to high level entertainment, warns Jonathan Shapiro #ABAAnnual 
• #BostonLegal scenes w/ #AlanShore, #DennyCrane talking for minutes can't be made in amped up Amazon TV era, says #DavidEKelley #ABAAnnual
• #Litigation is "methodical, grinding process" not well depicted by "speed warp machine" of TV drama, concedes #DavidEKelley #ABAAnnual
• #AmazonTV cuts down on sponsors' "commercial #censorship" of TV, e.g., being able to say cigs cause cancer, says #DavidEKelley #ABAAnnual

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

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

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

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

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

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

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

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

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

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

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

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

Back to the tort test kitchen.

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

Big Tobacco wins in Mass. trial for medical monitoring

Big Tobacco's Philip Morris prevailed in a product liability jury trial in Massachusetts in late September.  Hat tip: Torts Today.

The litigation started in 2006 with Massachusetts Marlboro smokers not alleging physical illness as such, but seeking medical monitoring in the form of "Low Dose CT Scanning of the chest" to early detect lung cancer.  State law in the United States has been increasingly receptive to medical monitoring as a form of award in mass tort cases, though a division has emerged in the jurisdictions between acceptance and rejection of the theory.  An award of medical monitoring essentially recognizes a civil wrong upon a modicum of extant physical injury, so raises concerns about the appropriate scope of tort liability.  If the tort system becomes too far detached from substantial, quantifiable loss, we worry about susceptibility to fraud, incentives to over-litigiousness, reliability of the courts to resolve disputes, and ultimately whether tort law will so pervade our lives that we fear liability for causing hurt feelings.

In the decade of litigation in this PM case, the federal court certified questions to the Massachusetts Supreme Judicial Court to ascertain whether Massachusetts law recognizes a medical monitoring claim, and if so, when the statute of limitations period begins to run.  The SJC found its way to answer the first question in the affirmative in 2009 (455 Mass. 215).  The Court at that time wrestled with the physicality question, opining that indeed, "[n]egligence in the abstract does not support a cause of action" (quoting precedent).  But the Court found enough of a physical-injury hook on which to hang its hat.

"Our tort law developed in the late Nineteenth and early Twentieth centuries," the SJC wrote in 2009, "when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent."

So there is physical injury, the Court explained further:

Subcellular or other physiological changes may occur which, in themselves, are not symptoms of any illness or disease, but are warning signs to a trained physician that the patient has developed a condition that indicates a substantial increase in risk of contracting a serious illness or disease and thus the patient will require periodic monitoring.  Not all cases will involve physiological change manifesting a known illness, but such cases should be allowed to proceed when a plaintiff's reasonable medical expenses have increased (or are likely to increase, in the exercise of due care) as a result of these physiological changes. 

The Court set out the plaintiff's burden--in equity, rather than in tort--to prove:

(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint [grammatical non-parallelism in original!]. 

Expert testimony is "usually" essential.

On the second certified question, the Court found that the statute of limitations could afford some play room.  The Court ruled that plaintiffs' claims could come within the limitations period if the remedy sought, monitoring by low-dose CT scan, represented a new technological remedy where no remedy was previously available.  Moreover, this equity action would not preclude a later tort action, should cancer manifest and be detected.  The discovery rule would not run the limitations period on the cancer action until detection.

But all for naught in the end, in this case at least.  Back in federal court in September 2016, the jury rejected the plaintiff's claim of design defect in Marlboro cigarettes under the "RAD" test.  A design defect is a kind of product defect that may be said to occur when a product is properly made, because the failure is in the design itself.  RAD is a way of testing for design defect by asking whether the manufacturer could have availed of a "reasonable alternative design" that would not have contained the same injury-causing defect as the design that was employed.  Specifically, applying Massachusetts law, the federal court required the plaintiffs "to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer)."  Plaintiffs could not meet that burden.

The case also involved a "93A" claim, referring to Mass. Gen. Laws ch 93A, an important statutory claim in Massachusetts tort law that can sometimes give a plaintiff an alternative route to a win and can generate a multiplier on damages.  Formally 93A is a consumer protection statute, but unusually broadly drawn, it appears routinely as a companion to conventional tort claims.  However, there was no alternative route in this case, and the 93A claim failed upon the collapse of the design-defect theory.

The case is Donovan v. Philip Morris, No. 1:06-cv-12234-DJC (D. Mass. Sept. 22, 2016).  Here is the court Order:

Judge Denise J. Casper: ELECTRONIC ORDER entered. In accordance with D. 540, 569 and 733, the Court reserved judgment on Plaintiffs' c. 93A claim against Defendant Philip Morris. This claim, as both parties acknowledge, is premised upon the breach of implied warranty of merchantability (i.e., the design defect claim). D. 29 at ¶¶ 100-110; D. 736 at 2; D. 725-1 at 3 (noting that a breach of warranty claim generally constitutes a violation of c. 93A and cases cited). It was the design defect claim for which a jury, after a contested and well-tried case by both sides, found Philip Morris, not liable. D. 718 (verdict form). Having considered the evidence presented at trial and the parties' proposed findings of fact and conclusions of law, 725, 736, 740 (Plaintiffs' reply), the Court renders judgment for Philip Morris on the c. 93A claim and makes the following findings and conclusions.

The jury found for Philip Morris on the design defect claim, finding in the first instance that Plaintiffs failed to show that Marlboro cigarettes produced by the Defendant are defective and unreasonably dangerous. D. 718 at 1. The court finds that the Plaintiffs failed to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer) and that the Defendant's failure to adopt a safer, feasible alternative design was unreasonable. The Court adopts the Defendant's proposed findings of fact, D. 736 at ¶¶ 14-82 in this regard.

Having found and concluded that Plaintiffs failed to prove this first, requisite element of the breach of implied warranty of merchantability claim, the Court need not address the remaining elements of that claim. D. 715 at 159-60 (jury charge addressing elements of design defect claim). Since this claim was the basis of the alleged unfair and deceptive act under c. 93A, the Court concludes, by a preponderance of the evidence and based upon the same findings of fact, that Plaintiffs c. 93A claim fails as well.

Accordingly, the Court shall enter judgment for Defendant Philip Morris as to the c. 93A claim (Count III). (Hourihan, Lisa) (Entered: 09/22/2016)

Full disclosure: I served on the Philip Morris litigation team many, many years ago.

Mass. SJC refuses worker-union privilege in civil discovery

The Massachusetts Supreme Judicial Court refused to find a worker-union evidentiary privilege in a civil lawsuit by an educator against her school, affirming the Superior Court.

Nancy Chadwick, a Massachusetts teacher at Duxbury High School and former president of the Duxbury Teachers Association, alleged bullying and harassment by a direct supervisor, leading to her dismissal.  She sued for discrimination and retaliation in December 2014.  At issue in discovery were 92 emails sought by the defendant and alleged by the plaintiff to be protected by a union-union member privilege.

The SJC, per Justice Hines, refused to recognize the privilege under Massachusetts labor law or in common law.  The Court recognized that labor statutes at both the state and federal level, the latter per National Labor Relations Board precedent, can privilege communication by union members.  But looking to the apparent intent of the legislature in Mass. Gen. L. ch. 150E, the Court reasoned that the scope of that privilege is the protection of collective bargaining rights, not the furtherance of a civil lawsuit.

In the common law analysis, the Court admonished that its power to recognize privilege under Evidence Rule 501 to be “exercised sparingly.”  The Court observed that the Supreme Court of Alaska recognized a broad privilege under state statute in 2012.  But that is the minority position.  New Hampshire declined to find a privilege in grand jury proceedings in 2007.  And a California appellate court opined in 2003 that the authority to create such a privilege should rest with the legislature.

The SJC agreed that “the Legislature may be in a better position to decide whether to create a privilege and, if so, to weigh the considerations involved in defining its contours.”  McCormick on Evidence (3d ed. 1984) was quoted in a parenthetical: “It may be argued that legitimate claims to confidentiality are more equitably received by a branch of government not preeminently concerned with the factual results obtained in litigation, and that the legislatures provide an appropriate forum for the balancing of the competing social values necessary to sound decisions concerning privilege.”  Moreover, the SJC found “speculative” any harm that might result to the plaintiff for the court’s refusal to recognize the privilege.

In a footnote, the SJC clarified that its decision did not diminish inherent judicial powers to award protective order, as under civil procedure rule 26(c).

The decision is significant in part because Massachusetts is regarded as a state (or commonwealth) friendly to organized labor.  The SJC decision asserts a conservative view of separated powers such as to interpret statute and to evolve the common law under rule 501.  The latter especially has implications for other potential common law privileges, such as the journalist’s privilege.  Also, because the decision arises in the context of public employment, the lack of union privilege may have implications for construction of sunshine laws that incorporate common law and “other law” confidentiality by reference.

The case is Chadwick v. Duxbury Public Schools, no. SJC-12054 (Oct. 4, 2016) (PDF).

Guest post: Where is tort (anti)reform in politics now?

Alex Nee, a student in my Torts I class, posted to the class website links to Ralph Nader in Harper's (April 2016) and Michael Shammas's reaction at The Huffington Post (May 2016), reflecting on the latter in the context of our study of American tort law.  Alex's opinions are of course his own.  I think his revival of these pieces and his comments speak to something of the voter's frustration in this election cycle, as linked to questions about dysfunction in tort law.

When our class watched the special on New Zealand's lack of fault-based tort law [excerpt from Adrenalin Nation], I had mixed feelings. On the one hand, it would be nice to have a more efficient system in place to ensure damages were looked after in a timely manner and without the need for costly trials. On the other hand, lawsuits and trials serve as a deterrent to negligence and malpractice. So how can America balance the two?

Tort reform is something that is always being tossed around in political and legal circles. What is needed to accomplish efficiency, advocacy, and deterrence is something that can be debated. What Shammas, the author of The Huffington Post article, suggested, however, is that there is no debate that the tort system in America is broken.

Shammas suggested that the demand for reform comes from a number of factors including lobbyists, political polarization, the lack of a functioning jury system, and a number of "deforms" ranging all the way back to the 1960s. I am of the opinion, coming from a political science major, that a lot of these problems stem from a broken political system. Few people will debate that something is wrong with American politics; just look at whom we nominated for President.

The constant polarization of the parties and the greed for power and re-election (over the need for advocacy of constituents) forces politicians to act unreasonably. Rather than advocate, they want money and power. Jury trials take too long and are not viewed favorably by Big Money. If I ran a company that could be sued for negligence, I would want the "system" rigged (or at least very lenient) against plaintiffs so I would not have to pay damages easily. To that end I would donate and support candidates who oppose trials, juries, and reforms that might favor them. Like Nader, Shammas concluded that this position is not in the best interest of the American people.

Shammas cited Ralph Nader's article in Harper's about the lack of a functioning jury system in American tort law.  Juries were designed to democratize courts. Rather than a few elites deciding the fates of the laymen, the laymen themselves would decide the facts. The verdict would be skewed toward Big Money and elites if the jury were not present. This is why our Founders framed the jury right in the Seventh Amendment.

Shammas ended on a note that common law is lagging even farther behind than it should. In today's day and age, technology and information is changing on a daily basis. New tech comes out faster and faster. Last year's model is obsolete, time to upgrade. The common law cannot keep up with our fast-paced society looking for modern answers to law. This is another weakness perpetuated by the broken political system.

The Legislature is supposed to step in and assist where common law lags behind. But the inefficiency of Congress and the constant bickering of States results in a sub-par system of balancing common law. It seems that a majority of politicians would rather talk about how amazing they are and the sins of the other party than talk about how we can fix broken systems or update the laws to reflect society's standards for right and wrong.

Alex Nee has a B.A. in political science from Gordon College in Wenham, Massachusetts, and is a J.D. candidate at UMass Law School. He has worked most recently as a service associate for Mid-Cape Home Centers, a communications officer for the American Red Cross, a legal clerk for Cape Cod Media Group, and a parking enforcement officer for the Town of Barnstable, Massachusetts.

The NFL and the Dramatic Arts

Last week, in The Death of Civil Justice, I mentioned Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979), in which U.S. District Judge Matsch wrestled with the Tenth Circuit over the role of the courts in oversight of on-field sport misconduct (think cousin problem, Deflate-gate).  Hackbart involved a strike on the body of Dale Hackbart (later an advocate for male breast cancer awareness) by opponent Charles "Boobie" Clark (since deceased) in a Bengals-Broncos clash in the early 1970s.  Judge Matsch would have left the matter within regulation by the sport, but the Tenth Circuit thought that the common law of recklessness afforded a backstop in tort to ensure that the rules of civilized society do follow the players onto the field in some fashion, as an Illinois appellate court once put it.

Well just this weekend a similar, yet curiously different, after-the-whistle scenario unfolded in an American football game between Florida Gators (I know you were watching, Prof. Andrew McClurg)
wide receiver Brandon Powell and Tennessee Vols defensive back Rashaan Gaulden.  Sideline cameras were not on them at the time, but aerial footage shows what appears to be Powell throwing a punch at Gaulden and (intentionally?) not connecting, and Gaulden hitting the ground (show?).  The refs took the incident seriously enough that after much deliberation, they ejected Powell. 

CBS commentators were initially harsh on Powell, angry and forlorn as he walked to the locker room just before a commercial break.  But after the break, they had changed their tune and apologized to him, turning their venom on the refs.  One commentator took the opportunity to impugn soccer (really necessary?) with reference to Gaulden's dramatic performance, and another invoked Greg Louganis in an awkward metaphor for "taking a dive."  The commentary itself makes the clip worth watching, and at least at the time of this writing, it's available here: "Flop of the Year."

The case is easier than Hackbart's, as he suffered debilitating injury that contributed to the end of his athletic career.  The problem in Hackbart was one of consent: What exactly does an NFL player consent to?  It can't be that the consent analysis requires a player to consent to the precise nature of collision that might occur in every play.  But it can't be either that a player does not consent to a scope of possible violence, going even beyond the rules of the game but within the contemplation of penalty assessment.  Consent must be to some hard-to-define cloud of possible eventualities, not too specific, not too broad, and none too pleasant.

Consent could come in to play in arguable assault--causing apprehension in another without resulting contact--just as well as battery.  But assault, if even that was Gaulden's intent, does not seem so urgently to invite the courts to second-guess governance within the sport, as a policy matter.

Anyway that's just a thought experiment, as no one is suing anyone.  Players are at least that tough.  And concussion-gate notwithstanding, football self-regulation has come a long way since Billy "The Gun" Van Goff.

The Death of Civil Justice: It Was a Good Run, 900 years

Opening panel at Anglia Ruskin University Sports Law 2016: Leonardo Valladares Pacheco de Oliveira, Ian Blackshaw, Tom Serby, Andrew Smith, and Antoine Duval

Last week I was privileged to attend a tremendous one-day Sports Law program at Anglia Ruskin University in Cambridge, UK, focusing on the question, “the future of ‘the legal autonomy’ of sport.”  Experts in the academy and in practice gave timely and informative commentary on contemporary sport governance from perspectives of contract law, politics, and dispute resolution. 

Though justifiably through the lens of sport, the program raised a broader and important question concerning the future of civil justice.  Dispute resolution in international sport today is the province of the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland, under the very loose supervision of the Swiss Federal Tribunal.  CAS has a complicated relationship with international sport governance organizations such as the IOC and FIFA.  Certainly the court is not their stooge.  At the same time, through the magic of contract law, the mandatory use of the arbitration system carries down through the echelons of world sport from the IOC to the national sporting federation, and all the way to the athlete.

Transnational sport governing bodies, such as the IOC and FIFA, want their disputes handled in this single channel, because it renders them largely immune to oversight by the democratic instrumentalities of the world’s governments, especially the courts.  The transnationals have legitimate and less legitimate motivations.  They fairly worry about potential liability in multitudinous courts, each national judiciary applying its unique domestic law anchored in local priorities and prejudices.  Bypassing national legal systems, the transnationals can conserve resources for objectives in the public interest, such as sport for development and peace, and the promotion of human health and competitive achievement.  The logic supporting consolidation of international dispute resolution under one supra-national banner is the same by which the U.S. Constitution places interstate commercial disputes in U.S. federal courts, supervening the potential vagaries and favoritisms of the states.

But international arbitration has its dark side—in fact, nearly literally, as CAS operates in the opacity that typically surrounds arbitration.  Observers, including journalists and NGO watchdogs, grow frustrated and skeptical, as secrecy breeds unfairness and unaccountability.  This problem is the same that has generated angst within the United States over the “secret justice” system that has so thoroughly superseded the civil trial—see the excellent work of the Reporters Committee for Freedom of the Press in its Secret Justice series, linked from here. 

Further threatening the integrity of these proceedings, the contracts that bind parties to arbitration, and are then construed in arbitration, generally are adhesion contracts: drawn up by the transnationals themselves, weighted to their favor, and presented as fait accompli to young athletes with Olympic gold medals dancing in their dreams.  Barrister Andrew Smith, Matrix Chambers, conceded that these contracts are not meaningfully negotiated.  Their acceptance at the international level apparently marks the same phenomenon that has been documented with alarm, but as yet no serious reform, at the consumer level within the United States in works such as Nancy Kim’s Wrap Contracts and Margaret Jane Radin’s Boilerplate.

Upon my inquiry, Smith pointed out that for many reasons, athletes, given the choice, would themselves prefer arbitration to redress in the courts.  A plaintiff often desires secrecy as much as a defendant.  An expert arbiter might be more likely than a civil court to reach a conclusion that recognizes the nuances of divided merits, rather than erring in favor of dismissal as against the plaintiff’s burden of proof.  Though affordable representation for claimants has been a problem for the CAS system, organized arbitration systems still do a better job looking out for claimant’s access to representation than the usual civil court.  And most important to potential litigants are the time and costs of civil justice, often prohibitive deterrents that make faster and cheaper arbitration more appealing.

Nevertheless, panelists agreed that for the arbitration system to work fairness, stakeholders including athletes must take part in developing the process.  Conference organizer Tom Serby of Anglia Law School emphasized the need for democratization of sport governing bodies.  Smith said that organization of athletes into representative bodies is essential, noting with approval that “the United States is farther along with collective bargaining.”

With disparate levels of enthusiasm for the merits of judicial abstention, three speakers—Serby; Antoine Duval of the Asser Institute,Den Haag; and Simon Boyes of the Centre for Sports Law atNottingham Law School—all opined that national courts have been generously deferential to private dispute resolution in international jurisdiction.  Quotes from the iconic British jurist Lord Denning were offered both for and against the position.  Denning on the one hand bemoaned the courts’ relative lack of expertise in matters of private regulation, respecting the brightly formalist lines of conserved judicial power.  On the other hand, he declared, as quoted in Baker v. Jones, [1954] 1 W.L.R. 1005, “‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’”  Duval and Boyes mapped the ground between, where court intervention seems justified.  Boyes boiled down viable grounds to the protection of natural justice, human rights, and free competition and trade.

Incidentally the same autonomy question was taken up in similar dichotomy by Judge Richard Matsch and then the Tenth Circuit in Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979).  Asked to intervene after an on-field altercation, Judge Matsch opined, on the “larger question” of “the business of professional football” and “the business of the courts,” that “the courts are not well suited” to allocate fault or probe causation.  For fear of excessive litigation and inconsistent rulings, any “government involvement” in the “self-regulated industry” of professional football was, in Matsch’s view, “best considered by the legislative branch”—Denning-like formalism.  Instead applying the law of recklessness to the dispute at hand, the Tenth Circuit disagreed.  Persuasive was the oft quoted reasoning of the Illinois Appellate Court in Nabozny v. Barnhill, 334 N.E.2d 258, 260—if a decision about teen athletes playing that other kind of football—that “some of the restraints of civilization must accompany every athlete onto the playing field.”

Well intentioned aspirations for meaningful athlete-as-stakeholder involvement and debate about the selective intervention of courts all gloss over the broader and more troubling trend of public, civil justice eclipsed by the private sphere.  I confess that what troubled me most about the sports lawyers’ commentaries on arbitration and autonomy was a problem beyond the scope of their charge: the disappearance of civil justice in our society at large.

Plenty has been written at the national level about vanishing civil justice and the rise of private dispute resolution.  But as the realities of globalization decree that every dispute becomes an international one—whether a youthful athlete against an international federation, or a homeowner against a floorboard maker—it it seems that public civil justice is dying.  Blind deference to adhesion contracts is hastening the trend, and the courts seem plenty eager to stand by and cede power.  They purport to further the laudable aims of deference to experts or freedom of contract.  But courts have always been in the business of second-guessing professed experts, and the contemporary commercial contract is hardly a product of free choices.

Dystopian science fiction in popular culture has in recent years flourished upon an obsession with burgeoning social angst over the corporatization of public life.  In 2013 and 2014, the Canadian TV series Continuum traced the personal struggle of an anti-terrorism agent who came to doubt the virtue of the corporate-dominated future she was sent back in time to protect.  Themes of abusive corporate supremacy and submissive, corrupted government dominate the visions of current hits, such as Killjoys and The Expanse, the latter based on the novels of James S.A. Corey.  The next year will see the premieres of Incorporated, a dark Matt Damon-Ben Affleck project, and the plainly titled Dystopia, which imagines 2037: “Governments are now powerless puppets for the biggest corporations.”

Western democracy has 900 years of experience developing a public system of civil justice to patrol the boundaries of right and wrong among us.  We ought not jettison that system so readily, nor so casually.  We ought not capitulate to the conveniences of globalization, nor certainly to the burdens of transaction costs.  Would that we spend more time and energy trying to fix the public system that we have rather than ushering it into the past and replacing it with the corporatized private justice of our nightmares.