My friend and colleague, and scholar extraordinaire, Professor Zachary Kramer has just published a new book on civil rights, Outsiders: Why Difference is the Future of Civil Rights. Knowing Professor Kramer's ability to relate a compelling narrative, I expect this book is a great read, and I can't wait to get my hot little hands on it. Here is the description from Oxford University Press.
Contemporary discrimination has changed in important ways from the forms
it took in the 1960s, the era in which our civil rights law system
originated. Previously, the primary targets of discrimination were
groups: African Americans, women, and Latinos, among others. The goal of
the Civil Rights Act of 1964 was to integrate marginalized groups into
civic life, shatter ceilings, and break down barriers. The law sought to
make us better people and America a more equal nation.
And it
has. Discrimination against groups still occurs, but affected groups can
marshal the rights regime to target and eliminate discriminatory
policies. The challenge today, however, is to protect the individual,
and our civil rights laws struggle with this. The people most likely to
face discrimination today are those who do not or cannot conform to the
whims of society. They are the freaks, geeks, weirdos, and oddballs
among us. They do and wear strange things, have strange opinions, and
need strange accommodations.
Outsiders is filled with
stories that demand attention, stories of people whose search for
identity has cast them to the margins. Their stories reveal that we have
entered a new phase of civil rights and need to refresh our vision.
Instead of dealing in protected traits, civil rights law should take its
cue from religious discrimination law and provide a right to
personality. Outsiders seeks to change the way we think about
identity, equality, and discrimination, positing that difference, not
sameness, is the feature of our age and arguing for a civil rights
movement for everyone.
Professor Kramer is associate dean of faculty, professor
of law, and Willard H. Pedrick Distinguished Research Scholar at the
Sandra Day O'Connor College of Law at Arizona State University.
The UMass Law Review has issued the following call for papers. Download the call in PDF here, and please share it with any interested scholarly communities.
UNIVERSITY OF MASSACHUSETTS LAW REVIEW CALL FOR SYMPOSIUM PAPERS AND PRESENTATIONS
November 14, 2018
We are pleased to announce the 2019 UMass Law Review Roundtable Symposium, currently titled “Law and Media.” In the age where the 24/7 news cycle and social media have impacted current politics and where data protection, personal branding, and technology have affected entertainment and media as well as the rule of law, an investigation of the relationship between law and the media of our current times is timely and warranted. Accordingly, the UMass Law Review seeks thoughtful, insightful, and original presentations relating to the impact of the law on media as well as the impact of media on the law.
Interested participants should submit a 500-word abstract to cshannon@umassd.edu, with “Attn: Conference Editor – Symposium Submission” in the subject line by December 31st, 2018 for consideration. Selected participants will be notified by the end of January and invited to present their work at the 2019 UMass Law Review Symposium taking place in late March of 2019. Selected participants may also submit a scholarly work for potential publication in the 2019-2020 UMass Law Review Journal. If you have questions about submissions or the Symposium, please contact our Business/Conference Editor, Casey Shannon or Editor-In-Chief, Kayla Venckauskas (kvenckauskas@umassd.edu). We thank you in advance for your submission.
My colleague and friend Dr. Piotr Szwedo, Jagiellonian University, has published the new treatise, Cross-Border Water Trade: Legal and Interdisciplinary Perspectives (2018), appearing as volume 32 of Brill-Nijhoff's Queen Mary Studies in International Law series. With water law being a key emerging issue around the globe in our contemporary times, this volume marks an important contribution to the literature. Congratulations, Piotr! Download the PDF flyer for your library. Here is the publisher's description:
Cross-border Water Trade: Legal and Interdisciplinary Perspectives
is a critical assessment of one of the growing problems faced by the
international community — the global water deficit. Cross-border water
trade is a solution that generates ethical and economic but also legal
challenges. Economic, humanitarian and environmental approaches each
highlight different and sometimes conflicting aspects of the
international commercialization of water. Finding an equilibrium for all
the dimensions required an interdisciplinary path incorporating certain
perspectives of natural law. The significance of such theoretical
underpinnings is not merely academic but also quite practical, with
concrete consequences for the legal status of water and its fitness for
international trade.
Piotr Szwedo, Ph.D. habil. (b. 1979) is a lecturer in
international law and Head of OKSPO Centre for Foreign Law Schools at
the Jagiellonian University in Krakow. He published monographs and
articles on international economic law and global governance.
Table of Contents
Preliminary Questions Pages: 1–38
In Search of a Regulatory Model Pages: 39–89
Water as an Article of Trade in WTO Law Pages: 90–130
Water Trade in the International Practice of States Pages: 131–207
Principles and Institutions of International Law as Conditions of and Restrictions on Water Trade Pages: 208–315
[This opinion is mine, reprinted from the Faculty Federation News: A Publication of the UMass Dartmouth Faculty Federation AFT-MA 1895, vol. XXIV, no. 5, Mar./Apr. 2018, p. 3. A version geared to university students can be found at The Torch, the student newspaper of UMass Dartmouth, Oct. 21, 2018.]
When I left law practice to teach, I knew little to nothing
about faculty governance and academic freedom.The dean who hired me, Rodney K. Smith—now professor and director of the
Sports Law and Business Program at the O’Connor College of Law, Arizona State
University—is a person of the utmost integrity from whom I learned a lot about
leadership and the business of higher education.
When I was a green, 26-year-old instructor of law, I
remember, I was joined at lunch by Dean Smith.I couldn’t bring myself to call him “Rod,” even when everyone else did,
and it still sounds odd to me, decades later.Sometimes Dean Smith ate lunch with the crew of us who ate in the
faculty lounge, a “king incognito” kind of thing, but, I think, totally
genuine.
Dean Smith wanted to know how things were going in the new
job.We chatted a bit about classes,
teaching, students.He asked something
about my interests in terms of developing new programs at the law school.I said something about being willing to do
whatever he needed me to, because “you’re the boss.”
“No, I’m not,” he retorted quickly.And he waited for me to react in that
MBTI-sensing-personality way that we Ns
always find really aggravating.
That he was the boss seemed self-evident to me.In my law firm, all partners were the boss,
and they could scream and yell or hop up and down or throw papers around or pretty
much do whatever they wanted, and we associates were supposed to act like that
was totally normal and appropriate.So
this challenge to the natural order of things really made no sense to me.
“You’re the boss,”
he added, as if that cleared things up.I was pretty sure that when I was hired, he had told me how much I would
be paid.If things in fact were the
other way around, I had really sold myself short.
“I work for you,” he said with the finality with
which one tells a hard-headed child “because I said so.”
It took me a long time to wrap my mind around his
meaning.When I had evaluation meetings
with Dean Smith his tack was always “what can I be doing for you?,” to make me
better able to do my job—teaching, research, and service.That was new for me.
As the First Amendment is part of my media law portfolio,
and academic freedom is an aspect of the freedom of expression, I have, since
that day at lunch with Rod Smith in January 1998, spent some part of my
academic life studying the history, law, and policy of academic freedom and its
partner principle, faculty governance.
I thought of this at the Faculty Federation meeting this
week when President Cathy Curran said we, faculty, are “weird,” in describing
the particular challenge of drafting HR policies that apply to faculty.
We are weird.And it’s
not something that’s well understood outside academia, nor often by
administrators in academia.
We are weird in a way that is critical to institutional
governance, to student learning, and moreover to our society—not just American
society, but human society.If the
organization of human civilization is built upon a search for truth in a free
market of ideas, and the university is “peculiarly the ‘marketplace of ideas,’”
as Justice Brennan wrote, then the independence of faculty inquiry is essential
to improvement of the human condition.That
notion underpinned the constituting principle of academic freedom in the
original universitas in 13th-century
Bologna.And it’s only more true, more
important, in the 21st-century information age.
Faculty governance of the academic enterprise is a
corollary.As former union President
Susan Krumholz aptly recalled at the Federation meeting, the administration of
a university works for the
faculty.Yes, the administration manages
budget, payroll, and enrollment, all things that might constrain faculty
freedom.That’s the weird part.But it must not
be forgotten that those functions exist only to enable faculty, whose job it is to educate students.
Dean Smith was right, and the intervening years have only
added to the urgency of his assertion.In an environment of higher ed financial crisis, burgeoning
staff-to-faculty ratios, and rampant bureaucratic overreach in the guises of
assessment and accountability, we lose touch with the essential, classical
design of the university at our own peril.
Deans, provosts, vice chancellors, and even chancellors and
presidents:They work for us.
On Tuesday, an intermediate appellate court in the Netherlands upheld a verdict against the government demanding more state action to curb carbon emissions and combat climate change. The court's decision (unofficial English translation) in favor of energy NGO Urgenda came just one day after the dire 12-year warning of the special report of the U.N. Intergovernmental Panel on Climate Change. Meanwhile the Trump Administration filed an emergency motion in federal court in Oregon today in its latest bid to stop climate-change litigation in the United States.
The Netherlands is working mightily already to reduce carbon emissions. The state projects a reduction in the neighborhood of 20% by 2020 over 1990 levels. But that number still falls short of 25%, which the court calculated as the nation's minimum treaty commitment. That difference, The Guardian reported, could be enough to force the shutdown of a recently opened coal-fired power plant. The court's decision chiefly references the 1992 U.N. Framework Convention on Climate Change and traces the development of states' legal obligations through the history of climate conferences from Kyoto in 1997 to Bonn in 2017.
As the state observed in the case, "Dutch emissions are minor in absolute terms and ... the Netherlands cannot solve the global problem of climate change on its own" (¶ 30). So the global significance of the decision is mostly symbolic, and, activists hope, an example for climate-change activism in the courts around the world.
American iterations of climate-change litigation are many, but the one case that has captured the public imagination more than any other is Juliana v. United States in the District of Oregon. The case has played well in media because the plaintiff effort is spearheaded by a not-so-camera-shy youth group, the Earth Guardians, led by indigenous activist, hip-hop artist, and let's be honest, teen heartthrob Xiuhtezcatl Martinez. (Below: new promo video for Martinez's debut album, Break Free.)
Juliana might yet be described best as "ill fated." Unlike myriad climate-change-aiming lawsuits in areas such as environmental and business regulation, or upon collateral constitutional theories, such as the Commerce Clause or First Amendment, Juliana is a direct assault on the federal government under constitutional due process—literally, the right to life.
At first blush, this approach seems to face insurmountable hurdles before the merits could ever be reached: namely, standing, justiciability, official immunity, not to mention the hundred other reasons civil rights lawsuits are awfully hard to win. Then at the threshold of the merits lie the conventional tort problems of affirmative duty, causation, and injury. In the "constitutional tort" vein, the plaintiffs seek to breathe new breadth into the "public trust doctrine," which posits that government holds natural resources in trust for the public good. The doctrine has seen modest success in, for example, beach access cases, but jurisprudential conservatives do not enthusiastically embrace the raw, public-policy-driven invitation to judicial intervention.
Despite conventional wisdom, the Juliana suit survived both a motion to dismiss in the trial court and an aggressive effort by the Trump Administration to shut the action down in the Court of Appeals. (To be fair, the Obama Administration also was not ra-ra plaintiffs on this one.) In November 2016, District Judge Ann Aiken recognized, "This is no ordinary lawsuit." Upon detailed analysis, she rejected the government's arguments on both standing and justiciability, finding the question presented "squarely within the purview of the judiciary."
Then, analogizing to the Supreme Court's reasoning on due process in the 2015 gay marriage case, Obergefell v. Hodges, Judge Aiken "ha[d] no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society." The Ninth Circuit in March rejected the government's bold demand that the case be dismissed to protect the separation of powers, finding the government's claim premature and well shy of the high bar for writ of mandamus. In July, the U.S. Supreme Court denied the government's appeal for a stay.
Thus back on the District of Oregon docket, Juliana was scheduled to open at trial on October 29. A headline in The Japan Times, over a pro-plaintiff commentary by Princeton bioethics professor Peter Singer, titled Juliana "the trial of the century." One week ago, on October 5, the Administration filed another motion for stay in the trial court. Undoubtedly buoyed by the appointment of Justice Brett Kavanaugh, the Government today renewed its motion to stay and asserted its intention to petition the U.S. Supreme Court for mandamus relief.
In the Dutch case, the government tried to fend off the lawsuit on grounds equivalent to standing and justiciability, but to no avail. The Dutch Civil Code authorizes class actions (a rarity in Europe) specifically by interest groups on behalf of citizens. Moreover, the court reasoned that individual human rights claims must be justiciable in Dutch courts if individuals could bring the same claims in the European Court of Human Rights. The government argued "trias politica," that is, separation of powers, to which the court responded (cheekily?): "This defence does not hold water. The Court is obliged to apply provisions with direct effect of treaties to which the Netherlands is party, including [the European human rights convention]. After all, such provisions form part of the Dutch jurisdiction and even take precedence over Dutch laws that deviate from them" (¶ 69).
Under the European human rights convention, Urgenda relied on articles 2 and 8, respectively the rights to life and privacy, the latter including the inviolability of family life—the same two notions cited by Judge Aiken in her Obergefell-inspired due process analysis under the Fifth and Fourteenth Amendments.
You can await the next development in Juliana via PACER under case no. 6:15-cv-01517. [UPDATE: U.S. Supreme Court issued an extraordinary stay on Oct. 19. See, e.g., Richard Franks @ Legal Planet. HT @ Flannery Rogers.]
[UPDATE: Joel Stronberg at Resilience reported that despite the earlier Roberts stay, SCOTUS issued an order on November 2 clearing the way for Juliana to go to trial.]
[UPDATE: Juliana returns to oral argument in the Ninth Circuit in Portland, Oregon, on June 4, 2019. Track the case at Climate Case Chart, which explains: "The government [appellant argues] that the plaintiffs lacked
standing and that their lawsuit was not a cognizable case or controversy
under Article III of the Constitution. The government contended that a 'quick look at the climate change issues and actions pending before
Congress and the Executive Branch'—including the Green New Deal, carbon
tax legislation, and the replacement for the Clean Power Plan—'confirms
that Plaintiffs have petitioned the wrong branch.' The government also
argued that the plaintiffs were required to proceed under the
Administrative Procedure Act and that their constitutional claims failed
on the merits."]
[UPDATE: The Dutch Supreme Court upheld the outcome in Urgenda on Dec. 20, 2019.]
[UPDATE: On January 17, 2020, the Ninth Circuit dismissed Juliana for failure of standing. An appeal to the U.S. Supreme Court is inevitable, but extremely unlikely to succeed. The case is Juliana v. United States, No. 18-36082.]
The court opinion, which ranges over more than 100 pages, is a remarkable work of jurisprudence and should not go unnoticed by comparativist students of common law. The opinion was authored by Associate Justice Andrew Phang Boon Leong. Justice Phang is a Harvard LL.M./S.J.D. who worked his way up the academic ranks in law, business, and management in Singapore before his appointment to the bench about a dozen years ago. He has a treatise in contracts among his bona fides. I owe my awareness of this decision to James Lee, equity scholar and reader in English law at The Dickson Poon School of Law, King's College London.
My purpose here is not to get into the merits or challenges of the torts of abuse of process and malicious civil prosecution. Suffice to say that if that is your interest, this opinion is mandatory reading. From the 20,000-foot perspective, I'll say that for many years I did not teach these torts in 1L beyond the bare bones mentioned in my CAP casebook by Prof. Marshall Shapo. Increasingly I'm feeling like I need to give these torts more bandwidth. I'm not sure whether it's a function of coarsening society, a natural evolution of common law, or me just paying better attention, but I feel like these "meta-torts"—that is, torts about tort litigation; my term, not to be confused with meta-humans, nor with Birks, et al.'s quasi-tort equitable wrongs—are getting more play today than they used to. Accordingly, this year I drafted multistate rules to guide students, and at some point, I will add the rules to my American torts primer.
Instead I want to share three favorite bits of Justice Phang's opinion. The first thing to notice here for the comparativist is that Singapore is a common law jurisdiction. I confess, it's not the first nation I think of when reeling off a list of common law countries. For an academic, it might ought be. (I have been there, and it is a lovely, unique place.) Singapore inherited English common law by way of the British East India Co., a distinction in which, of course, it is not unique. At the same time, Singapore's unusual role as a tiny economic powerhouse, dependent on and defined by its commercial relationships with the world, make its common law a unique and worthy study in internationalism. Thoughtful and contextualized, Justice Phang's opinion exemplifies this point. For survey research, the court thanked academic amicus Prof. Gary Chan, a colleague of Phang's from the law school at Singapore Management University.
Of 'quenchless feuds'. Justice Phang (¶ 1) elegantly characterized the land dispute that underlies Lee Tat:
As the Judge observed [in the High Court], this is yet another legal tussle in a series of bitterly fought litigation between the parties which stretches across more than four decades and which hitherto has resulted, inter alia, in five decisions of this court, excluding the present decision. In the last of those decisions, this court characterised the protracted quarrel between the parties as a "marathon saga of litigation" [citation omitted]. At this juncture, some seven years and yet another set of proceedings later, it seems appropriate to say, in the words of Herman Melville, that it is a "quenchless feud" (Herman Melville, Moby-Dick; or, The Whale (Norton, 1892) at p 169).
That this dispute arose in what appears to be a Singaporean iteration of the Hatfields and the McCoys does bolster the court's conclusion on meta-torts. If transaction costs are part of the problem in your legal system—we know they're a huge problem in the American system—you might want to think twice about piggyback litigation. At some point the law of diminishing returns eclipses justice in the dogged search for truth.
Of 'timorous souls' and 'bold spirits'. In considering the wisdom of extending Singaporean common law, Justice Phang (¶ 11) broke out a Lord Denning gem:
In considering possible recognition of the torts of malicious civil prosecution and abuse of process in Singapore, we bear in mind the oft-quoted observations by Denning LJ (as he then was) in the English Court of Appeal decision of Candler v Crane, Christmas & Co [1951] 2 KB 164, where the learned judge drew (at 178) a distinction between "timorous souls who were fearful of allowing a new cause of action" and "bold spirits who were ready to allow it if justice required". These observations have, in fact, been quoted more than once by this court itself [citations omitted]. However, there is a limit to judicial law making.
This is a beautiful treatment of the seeming conflict between common law as a law-making device, renowned for its very capacity to grow and adapt to new circumstances, and the fundamental identity of the western judiciary as a creature of only corrective justice in the Aristotelian mold. Otherwise put, the enterprise of common law often seems at odds with the purportedly non-normative job of the judge. To set the problem in its popular American baseball metaphor, when is a judge, whose job it is only to call balls and strikes, duty-bound to change the size of the strike zone? This problem in relation to the nature of the common law enterprises has been a puzzler in the United States at least since Holmes's Common Law and has at times generated nuances of distinction between otherwise like-minded judges in such a way as to vex legal scholars.
William the Conqueror
Of the Norman Conquest. In examining the policy rationale for malicious (criminal) prosecution to test its applicability in the civil context, Justice Phang (¶ 87) traced the division between criminal and civil law to 1066:
The character of a criminal prosecution, carried out with a view to punishing a public wrong, is fundamentally different from that of a civil prosecution which is carried out with a view to vindicating a private right. The difference between these two types of proceedings was explained in the following passage from an earlier decision of this court, Public Prosecutor v. UI [2008] 4 SLR(R) 500 at [52]:
... With the reign of William the Conqueror, the [English] criminal justice system, as it then stood, changed drastically. A distinction was created between liability for private wrongs and liability for public wrongs. Sir William Blackstone explained clearly the distinction between public wrongs and private wrongs in Commentaries on the Law of England vol 4 (A Strahan, 15th Ed, 1809) as follows (at p5):
[P]rivate wrongs, or civil injuries, are in infringement or [a] privation of the civil rights which belong to individuals, con[s]idered merely as individuals: public wrongs, or crimes and [misdemeanours] are a breach and violation of the public rights and duties, due to the whole community, con[s]idered as a community, in [its social] aggregate capacity.
As a result of the above change in the English criminal justice system, the individual victim was replaced by the State. The offence was considered to be committed against the State and the liability of the offender was, accordingly, owed first and foremost to the State. This is the criminal justice system which Singapore has inherited and maintains to this day.... [emphasis added by Justice Phang].
Justice Phang (¶¶ 88-90) derived from this history three salient distinctions between criminal and civil process. First, criminal charges more than civil claims can impugn a defendant's reputation in the community. Second, the consequences of criminal conviction are more invasive of the defendant's rights than the consequences of civil liability. Third, criminal prosecution is an enterprise of public authorities, while civil prosecution is a private pursuit. In all three respects, then, the need for a remedy to malicious prosecution is greater in the criminal context than in the civil context.
A useful review of abuse of process, malicious (criminal) prosecution, and "malicious use of civil process" in American law can be found in Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation ch. 40 (updated June 2018) (available on Thomson Reuters Westlaw), which begins (§ 40.1) by differentiating the three concepts. Meanwhile Justice Phang's opinion in Lee Tat takes an elegant snapshot of the common law world.
A still mysterious financial fraud perpetrated on students
of Merrimack College resulted in a high
court ruling last week on agency law with important implications for tort
liability and the equitable doctrine of in
pari delicto.
Merrimack is located in North Andover,
Massachusetts (where the recent gas explosions occurred). Merrimack is a small liberal arts college founded in the
Roman Catholic tradition after World War II especially to serve returning vets. Despite the depressed market in higher education, Merrimack this fall reported a record-size freshman class and plans to join Division I athletics.
In 2014, Merrimack financial aid director Christine Mordach
pleaded guilty to federal criminal fraud charges, and in 2015, she was
sentenced to a year’s imprisonment and ordered to pay $1.5 million in
restitution.She had been accused of perpetrating
a scheme that replaced college scholarship awards with federal loan money on
the college books.The scheme came to
light when a new accounting system started to inform students of federal Perkins
debts they did not know they had.
Why Mordach did what she did is the mystery.The scheme shored up the college’s bottom
line through lean times, because money paid out of college coffers in grants
was replaced with borrowed dollars that students would be on the hook to pay
back.But there was no evidence that
Mordach was ordered to execute the scheme.To the contrary, she seems to have taken steps to conceal it, which she
did so well that Merrimack auditor KPMG gave the college a clean bill of health
while the fraud was ongoing.
That brings us to the instant civil case.Merrimack seeks to recover against KPMG on a
range of theories, including breach of contract, professional malpractice, and
negligent misrepresentation, for KPMG’s failure to detect the fraud.KPMG won dismissal in the superior court upon
the doctrine of in pari delicto.Literally Latin for “in equal fault,” in pari delicto translates as the clean
hands doctrine of equity.In tort, the doctrine
prevents a tortfeasor from recovering against a co-tortfeasor or innocent party—such
as a bank robber who blames a co-conspirator for his bullet wound, or the burned
arsonist who would blame firefighters for too slow a rescue.Merrimack appealed the dismissal to the
Massachusetts Supreme Judicial Court (SJC).
Being a doctrine in equity, rather than a rule, in pari delicto calls for a fact-sensitive application, operating as a
function of the parties’ relative moral blameworthiness.Thus in a 1985 case
discussed in the instant opinion, the U.S. Supreme Court allowed would-be
beneficiaries of insider trading to sue their tipsters for losses resulting
from misinformation, even if both plaintiffs and defendants were
wrongdoers.The plaintiffs’ trading upon
a failure to disclose was not “substantially equal” in moral culpability to the
tipsters’ illegal insider disclosures, the Court decided, and public policy
favored holding the tipsters to civil account.
KPMG argues more than just Merrimack’s benefit derived from
a favorable financial picture.KPMG
argued successfully in the superior court that Mordach’s actions must be
imputed strictly to Merrimack upon the tort-and-agency doctrine of respondeat superior, because Mordach was
an employee of Merrimack and acted within the scope of her employment.So if intentional fraud is imputed to
Merrimack, then in pari delicto
precludes recovery against KPMG for the diminished culpability state of mere negligence.
On the one hand, the SJC reasoned, look at the problem from
the perspective of Merrimack students:Were they to have sued Merrimack—not actually necessary, as the college
spent $6 million to square its affairs with students—there is little doubt that
Mordach’s intentional tort would have imputed strictly, even to an otherwise innocent
Merrimack, through respondeat superior.From where the student sits, the fraud was
perpetrated by Merrimack’s financial aid office: Mordach and college, one and
the same.Merrimack might have sought indemnity
from employee Mordach, but that’s always true in respondeat superior cases (notwithstanding employment contract).
On the other hand, the SJC reasoned, look at the problem
from the perspective of Merrimack College:Strict liability through the action of respondeat superior imputes liability irrespective of fault and
certainly says nothing about moral blameworthiness.Merrimack as liable to students is never adjudicated
as bearing fault. From a moral standpoint,
Merrimack is at worst guilty of neglect, or failure to act, such as by negligent supervision of
its financial-aid director.So notwithstanding
strict legal liability, Merrimack’s negligence would implicate moral blameworthiness of a magnitude less than what the college alleges of KPMG.
When co-tortfeasors both commit an intentional tort, in pari delicto precludes liability of
one to the other.But that’s not
necessarily so when merely negligent co-tortfeasors A and B unwittingly combine
efforts to cause loss to C,
incidentally causing loss also to B.In the subsequent action B v. A, the old contributory negligence rule, as a complete
defense, would have effectuated the clean-hands doctrine.But contemporary tort law commits negligent
co-tortfeasors to comparative-fault analysis.In a modified-comparative-fault jurisdiction such as Massachusetts, B may recover from A if A bore more fault
than B, and B’s recovery is reduced in proportion to B’s own share of fault.
The SJC decided that moral blameworthiness, not legal
liability exposure, must be the guiding principle for an equitable doctrine.Merrimack might be on the hook hypothetically
for respondeat superior liability,
and even negligent supervision.But
neither of those rules suggests moral blameworthiness greater than KPMG’s.The case might be different if Mordach has
been a senior executive of Merrimack; she was not.And there is no evidence that Merrimack knew
what Mordach was up to, much less directed her actions.
So in the absence of an intentional tortfeasor between
Merrimack and KPMG, in pari delicto
does not apply.If Merrimack’s negligence
contributed to its own losses, that will come out in the comparative-fault
wash.That conclusion is bolstered by a comparative-fault-like
mechanism in Massachusetts
statute that applies specifically to client-versus-auditor malpractice claims. Accordingly, the SJC reversed and remanded.
Chief Justice Gants at UMass Law (2016)
The SJC received amicus
briefs from the American Institute of Certified Public Accountants, the Massachusetts Academy of Trial Attorneys (MATA), and the Chelsea Housing Authority.For the MATA, attorney Jeffrey Nolan argued,
like in the U.S. Supreme Court insider trading case, that liability exposure is
needed to hold KPMG accountable, especially in a market dominated by the Big Four accounting firms.The housing
authority also backed Merrimack, attorney Susan Whalen recounting her client’s
victimization by internal misconduct that went undetected by accountants.She asserted that in pari delicto has “the perverse result of de facto immunity for gross levels of negligence” by auditors (Law360,
subscription required).
All of that is not to say that KPMG will be held
liable.Besides fault yet to be proved,
the SJC affirmed the superior court’s leave for KPMG to amend its answer,
adding a defense of release.Ut victoriam tyranne?
The case is Merrimack
College v. KPMG LLP, No. SJC-12434
(Mass. Sept. 27, 2018).The opinion was
authored by Chief
Justice Ralph D. Gants, a graduate of Harvard undergrad and law, one-time
AUSA, and 2016 recipient of an honorary law degree from UMass Law School.
