Journalism is dead. Long live journalism.

ournalism is no longer a viable business model, and it’s not coming back.  Journalism is on life support.  And we have to decide what to do.

That seems to be the consensus of the public interest advocates at this year’s RightsCon 2019—the premier global conference on human rights in the digital age, meeting now in Tunisia.  The problem being discussed here is not how to lure readers through pay walls and into subscriptions, but how to harness public investment in lump sums.  Public investment is also known as government subsidy.

I have resisted the idea that independent journalism is not up to the challenges of the information age.  Personally, I was inculcated with the “professional” tradition of journalism by Watergate-era teachers.

atergate journalism was the product of a great evolutionary leap in the early 20th century.  When President Teddy Roosevelt didn’t like what the press printed, he derided journalists as “muckrakers.”  He sued newspapers for reporting corruption, but his fussing only sold more papers.  Muckraking became a badge of honor, and a tradition was born of objective and balanced journalistic revelation of public and corporate corruption, independent of government entanglement.  Modern journalism was animated by the same post-war idealism that birthed the (underrated) League of Nations.  However incidental, the First Amendment’s simultaneous treatment of press and religion bolstered the notion of press-state separation.

In journalism by the late 20th century, we believed we had achieved the end of history, the ultimate model of a Fourth Estate in a liberal democracy.  I wrote an honors thesis on seemingly archaic journalist licensing in Central America.  When I posited to my professors, the Watergate crowd, the devil’s advocacy that maybe journalist licensing has an upside, we shared a good laugh.  Of course it would never work to have government oversight of journalism.  It would be the death of journalism and government accountability in one fell swoop.

In ethics class, we were taught to be wary of any entanglement with the subject of a story, and government is the greatest subject of all.  We grumbled our collective didactic disapproval of the sports reporter who accepted a free ride to the game on the team bus.  White House press credentials were a reality that made us swallow hard, but we took on faith that access to the press room would never be restricted based on content or viewpoint.  The American public wouldn’t abide it.  And hey, the room is only so big.

That was the heyday.  That was when journalism was alive and kicking.  We looked the other way when journalism had a coughing fit of consolidation.  We pretended everything was OK when journalism went 24/7.  We started new programs in j-schools when journalism went online.

Eventually, though, we had to admit that we were in denial.  It wasn’t the end of history.  It was just the end.

Journalism is dying.

dvocates here at RightsCon borrow liberally from the language of socioeconomic development, which in turn generalized upon environmentalism.  Brittan Heller, now a fellow at Harvard, admonished her audience to “stop saying ‘fake news,’” and, instead, to think more broadly about “the entire information ecosystem.”  At a panel organized by Reporters WithoutBorders (RSF, for Paris-based Reporters Sans Frontières), Mira Milosevic expanded on the problem of “news deserts” in various countries, the United States included, where local news already is extinct.  Milosevic is executive director of the Global Forum for Media Development, and she worries about the “lack of sustainability” in journalism.  Consistently with UNESCO policy, this language portrays healthy journalism as an essential condition of human prosperity.  The language of environmentalism meanwhile tends to elevate the crisis in journalism to accordingly catastrophic scale: journalism is to political freedom as a green earth is to biological life.

RSF panel at RightsCon 2019 in Tunis. Including, from left to right: moderator
Elodie Vialle, RSF; Julie Owono, Internet Without Borders; Mira Milosevic.
My photo (CC BY 4.0).

The towel already has been thrown in from Walter Cronkite’s corner.  By RSF’s reckoning, journalism needs “a multi-stakeholder approach.”  If that’s right, then we stand on the brink of another evolutionary leap.  Though maybe the evolution metaphor peters out if, like me, you’re not convinced that change can only be for the better.  The stakeholders that journalism’s rescuers would bring to the table include the public, civic service organizations, and—here’s the kicker—“the ‘good’ forces of government,” as another RightsCon panelist put it.

Milosevic conceded that meaningful government commitment is essential if media watchdogs are going to tackle the populous public affairs machinery of contemporary corporations.  And there’s plenty of corporatocracy to tackle.  A RightsCon workshop moderated by Privacy International's  Francisco Vera, formerly of Derechos Digitales in Chile, discussed how nations are mis-regulating personal data through trade agreements, such as our old friend, the Trans-Pacific Partnership (TPP, now the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, or CPATPP, which is better because it’s comprehensive).  Our governments—the bad parts—are more than eager, under the misleading banner of free trade, to cater to corporations by signing away our fundamental privacy rights and allowing data to be exported beyond the reach of jurisdictional law.

So it all shakes out this way:  Bad government is the problem.  Good government is the solution.  We don’t have to worry about absolute journalistic independence from government.  We need to get good government to fund journalism that will fight bad government and its corporate cronies.  Save the journalism, save the world.  And don’t worry that good government will be holding the purse strings.  Because, try to keep up, it’s good.

Milosevic suggested that fines for corporate abuses of the public trust might be channeled into funding public interest journalism.  That’s not a bad idea.  There is an appealing symmetry to buying the watchdog’s food with a share of the savings.  It’s like preventive qui tam.

It’s also not a wholly new idea.  If with waning enthusiasm, the United States, like many countries, supports the arts and public libraries.  We experimented successfully with this approach in 20th-century broadcasting.  Public funding gave birth to such instrumental institutions as National Public Radio and Sesame Street.  As the public tap has been cinched off, both have turned to the private sector for a lifeline.  Sesame Street succumbed to HBO.  

Pngimg.com (CC BY-NC 4.0)

f we’re going to do public investment in free expression, the challenge is to keep an arm’s length between investor and speaker.  On that score, America has a lousy track record.  The American Library Association is so battle weary on the intellectual freedom front that a RightsCon dinner companion accused it of cowardice: a far fall from its heroism of yore, when it championed opposition to internet filtering and national security gag orders.  When Americans pledge public resources, passion for individual ingenuity is soon overwhelmed by feverish fealty to the Middle Ages maxim: whoever pays the piper calls the tune.

Yet, I am told, journalism must now turn to government to ensure its survival—to ensure all our survival.  I don’t disagree.  I’m just worried.

I’m giddy at the idea that we are witnessing an evolutionary renaissance of the Fourth Estate.  At the same time, I’m nauseated at the prospect of a Faustian bargain.

Journalism is dying.  If we try to save it with a multitude of stakeholders, maybe we can resuscitate the journalism of our ideals.

Or, like Dr. Frankenstein, we’ll zap into existence an all new hybrid.  Maybe we’ll have zombie journalism on our hands, and it will devour the stringy remaining flesh of our gaunt democracy.

Arkansas higher ed faculty sue to protect tenure, academic freedom

An assault on academic freedom in Arkansas has drawn a lawsuit by faculty.

In fall 2017, I republished concerns by my colleagues in the University of Arkansas System that proposed changes to board policy essentially would render academic tenure a nullity, allowing discipline and termination of faculty on a broad range of new and vague grounds.  Adopted in 2018, one new policy provision allows faculty firing for "a pattern of conduct that is detrimental to the productive and efficient operation of the instructional or work environment."  That's code for "we don't like you; play ball or else."  

Symptomatic of the contemporary corporatization of higher education, the new policy fails to recognize that faculty are actually the governors of universities, not at-will workers on the assembly line.  This is not just an Arkansas problem.  See generally Benjamin Ginsberg's "lacerating" (WSJ) 2013 book, The Fall of the Faculty, for documentation of this phenomenon and why it's so dangerous. For a stunning yet representative case study, see Jacob Howland on the University of Tulsa for the Manhattan Institute's City Journal (describing "a perfect storm of trends currently tearing through the American academy: the confident ignorance of administrators, the infantilization of students, the policing of faculty, the replacement of thinking with ideological jargon, and the corporatization of education") (and podcast).

Now three tenured faculty have sued over the revised policy.  Professor Joshua M. Silverstein at the University of Arkansas Little Rock Law School explained in an email to Arkansas Little Rock faculty last week:

After the Board of Trustees adopted the revisions to Board Policy 405.1 at the Board’s March, 2018 meeting, I wrote an email summarizing what happened at the meeting and offering some thoughts regarding strategies that could be used to combat the changes.  In the latter section, I noted that litigation challenging the revisions was highly likely.  That litigation has commenced.  Yesterday, the law firm of Quattlebaum, Grooms & Tull filed a lawsuit on behalf of three of our colleagues – one each from UAMS [Medical School], UA-Little Rock, and UA-Monticello.  The lawsuit seeks to nullify the changes to 405.1 to the extent they apply to UA System faculty who were tenured or started in a tenure-track position prior to March 29, 2018, the date the amendments to 405.1 were adopted.  As I explained last year during the deliberations on 405.1, I believe that the lawsuit has a very good chance of succeeding....

[A] bill that was introduced in the Arkansas legislature this past session ... would have prohibited the application of Revised 405.1 to any faculty member with tenure or on the tenure track at the time the revisions were adopted.  Rob Steinbuch, a colleague of mine at the law school, and I were deeply involved with that bill and we both testified in favor of it.  Had the bill become law, it would have nullified the need for litigation.  Unfortunately, the bill died in committee.  Hence the filing of the lawsuit.

Note that this lawsuit itself won't stop the slow death of tenure and academic freedom going forward at the University of Arkansas.  New hires would still be entitled only to paper-thin tenure.  Meanwhile, nationwide, we still are grappling with the elimination of tenure-track positions altogether, in favor of cheap adjunct labor.  Nevertheless, I applaud my plaintiff-colleagues.  It's time faculty started pushing back, lest we irreversibly turn American universities into a mockery of the Bolognian conception—just in time for its 1,000-year anniversary in 2088.

Professor Silverstein is tracking the litigation at his blog, Jurisophia, where you can download the complaint.  The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. filed May 31, 2019).  Here is June 1 coverage in The Arkansas Democrat-Gazette.  One of the named plaintiffs is a law professor, extraordinary practicing attorney, and treasured friend of mine, J. Thomas Sullivan at Arkansas Little Rock.

Teaching Trump: Four Thoughts for Faculty

Saturday morning, at the annual meeting of the Law and Society Association (LSA) in Washington, D.C., I served on a panel about "Teaching Law in the Trump Era."  My thanks to panel chair John Bliss, University of Denver Sturm College of Law, Swethaa S. Ballakrishnen, UC Irvine School of Law, and other founders and leaders of the new LSA Collaborative Research Network #19 on legal education, for organizing this program.  Here is the panel abstract:

The Trump presidency has reportedly attracted a new wave of law school applicants who are motivated by issues ranging from sexual assault, to racial justice, to the rights of immigrants, to the basic foundations of the rule of law. In this context, how do U.S. law teachers address legal and political headlines that many faculty and students find disconcerting? This session offers diverse perspectives on this question from accomplished law faculty who teach a wide range of legal curriculum.

Trump in the classroom.  Literally.  White House photo.

For my bit, I focused on President Trump-related materials I used to teach defamation in Torts II in March 2019.  In class, I assigned as reading the complaint in Zervos v. Trump—before the New York Appellate Division at the time—alongside Justice Thomas's opinion on cert. denial in McKee v. Cosby.  The pairing of a pleading and a scholarly judicial opinion allowed a study first of tort doctrine, and then of constitutional and policy dimensions, all the while with a running contemporary thread of "#MeToo," which ran back to our fall 2018 study of intentional torts.  Outside of class, in review sessions, I used Melania Trump's 2017-settled complaint against blogger Webster Tarpley (Variety).  These "Trump cases" afford ample opportunity to explore skills and practice collateral to the law of torts, such as litigation strategy, legal professionalism, and client counseling.

Professor Bliss suggested that we fashion our presentations around student feedback and reactions to Trump-related materials.  To that end, I solicited input from my class (and from colleagues in academic support).  Five students generously took time from their after-exams pursuits to oblige with deeply thoughtful, sometimes moving, and thoroughly informative feedback.  I am grateful to them.  I extracted their words, anonymized, for use in my panel time.  I won't reiterate them here as to further protect their anonymity. But I'll share four conclusions about "teaching Trump," drawn from this feedback. 

(1) Plan well and stay on course.  Because this content tends to evoke strong emotions, it is important for the teacher to map out an agenda about where the class discussion should go, in consonance with what the materials offer.  Then the class must be kept on task.  This might require more involved moderation of class discussion than is the norm for some teachers.  Students will sometimes make observations driven by emotion and supposition, and that's OK.  But those observations need to be responded to with channeling into constructive analysis.  If for example a student says that the plaintiff is grubbing for money, that's a great springboard for legitimate questions, without having to challenge or verify the premise: How does tort doctrine safeguard, or not, against disingenuous claims?  What are the incentives or impediments for plaintiffs and their lawyers, born of transaction costs?  How does a lawyer counsel a client about uncertainty of recovery?

(2) Avoid assumptions and keep an open mind.  The teacher should not suppose that she or he knows what the students are thinking, whether as a group or to an individual.  Someone in the class is a Trump voter and believes he is America's only way forward.  Someone else regards Trump as a source of post-traumatic stress.  They're not always showing you these reactions, for various reasons.  And they're not necessarily who you think they are. Take care not to make assumptions about where people stand.  One student who wrote to me really forced me to turn over the immigration "wall" issue in my own mind, and I learned a great deal from her different perspective.  Isn't the great thing about being a professor that continuing education is part of our job?

(3) Model professional skills.  When a teacher leads a law school class, students are learning doctrine, but they're also "meta-learning" lawyering skills such as leadership and dispute resolution.  How a teacher manages conflict in the class and moderates discussion will be as important and memorable a lesson for some students than the subject matter being taught.  For this reason, teachers need to be deliberate in and thoughtful about pedagogical methodology.

(4) Lighten up.  Yes, our content in law school can be heavy.  We have to talk about things in the classroom that reveal the absurdity of "trigger warnings," because life doesn't come with a warning label, and law is about life.  But it is possible—if hard—to engage with heavy issues and to do so with a light heart.  Guidance can be drawn from some recent developments in comedy—think Hannah Gadsby and Ellen DeGeneres—to show that humor can be accomplished without it being at anyone's expense.  Don't get me wrong; I love a good insult comic.  Just not at the front of the classroom.  One student who wrote surprised me with the observation that a light joke I made diffused tension over the fraught subject and made students feel comfortable participating.  Now if only I could remember what I said.

These conclusions entail work for any teacher, no matter how experienced.  I am far, far from excellent in realizing these lessons.  But feedback from my students has given me goals.

Thanks also to excellent co-panelists at LSA, and to all the teachers and scholars who contributed to the roundtable discussion.  I have appropriated many of their insights and ideas for further exploration and experimentation.  Co-panelists were Scott Cummings, University of California, Los Angeles; Rashmi Goel, University of Denver Sturm College of Law; and Gwendolyn Leachman, University of Wisconsin Law School.

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Attention faculty!

 Dean Peltz-Steele and I are collaborating to produce an open-source resource for faculty in law and related fields to teach law and policy through "Trump case" materials.

Stay tuned for more information about "Trump Law."

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Human life, human rights are the losers in unraveling Chevron-Ecuador litigation

Crude contaminates an open toxic pool in the the Ecuadorean Amazon
rainforest near Lago Agrio.  Photo by Caroline Bennett / Rainforest
Action Network, CC BY-NC 2.0.

[UPDATE, May 24, 2019: SDNY Judge Kaplan yesterday held Donziger in civil contempt.  Read more from Michael I. Krauss at Forbes.]
 
Court rulings are stacking up against the plaintiffs in the global Chevron-Ecuador litigation.  About a month ago, the Dutch Supreme Court, affirming arbitral orders, refused enforcement of the $9.5bn judgment that Ecuadorean courts entered against Chevron, successor to Texaco, for oil pollution at Lago Agrio, feeding into the Amazon River (e.g., AP).  Plaintiffs’ appeals have fared poorly since Canadian courts rejected enforcement earlier in April (e.g., Reuters), piling on adverse outcomes in the United States, Brazil, and Argentina.

Now an opinion headline in Oakland News Now—if atop a column authored by a self-professed “influencer” who decidedly favors Chevron—trumpets that plaintiffs’ attorney “Steven Donziger, … Once The Toast Of Hollywood, Is Now Simply Toast.”  Notwithstanding that dry, I mean wry, assessment, it is true that Donziger was ordered in March 2018 to reimburse Chevron for more than $800,000 in legal fees as part of equitable relief in a private RICO action in the Second Circuit, and subsequently he was pressed to defend his bar license.  He maintains that he and his allies are being victimized in a political-hit orchestrated by Big Oil.

If you’re new to the Chevron-Ecuador case, beware the rabbit hole.  It’s almost impossible to summarize how we’ve come to this point in the course of a quarter century.  The quickly dated 2015 book Law of the Jungle by Paul M. Barrett is still an excellent and objective port of entry (Amazon).  (My co-instructor/spouse and I plan to assign it in our comparative law class in the fall semester.)  You also can read about the case through the columns of George Mason Law Professor Michael I. Krauss at Forbes; he’s followed developments closely over the years.

In short, there was some awful pollution in remote oil fields in Ecuador, reckless extraction and vacant regulation in the 1970s and 1980s wreaking devastating, long-term, far-reaching, and literally downstream consequences to human life and the environment.  That part is hardly in dispute.  What has been less clear and is hotly contested is whom should be blamed.

Enter the polarizing personality of Donziger, Harvard Law ’91, who, it must be said, is a genius for having designed a new model of global environmental litigation.  He solicited wealthy and famous, like, Sting famous, investors to raise money for the high costs of litigating against transnational Big Oil behemoths in an effort to tame them with the rule of domestic law.  At what point Donziger’s litigation lost the moral high ground—somewhere between the get-go and never—is the subject of much speculation.  However, that corruption was rampant in Ecuadorean courts is beyond dispute, and the role of the lawyer when justice might require, say, cash prepayment of a new “court fee,” raises some thorny questions in ethics and cultural relativism.  What is for sure is that when you start talking about Big Oil as occupying the moral high ground, something already has gone terribly wrong.

One can only make an informed guess about where liability for Lago Agrio should land.  Texaco/Chevron probably bears a slice of moral, if not legal, responsibility, at least in a strict-liability, “Superfund” sense.  But through an unascertainable and poisonous mix of lax regulation, corruption, foolhardy assumption of responsibility, and their own recklessness practices, the state of Ecuador and its state-owned enterprises (SOEs) in oil extraction were vastly enriched and probably bear principal responsibility for the disaster, morally and legally.  Arguable then is how thoroughly moral responsibility should flow back to the industrialized world along the pipeline of oil demand; I won’t step into those inky depths.

Donziger and the Ecuador litigation is a capstone course for law school, so I’m not here to state a thorough explication.  I mention the case because it strikes me that it exemplifies two serious problems in contemporary tort law, intersecting on this unusual tangent.

The first problem is that both state actors and transnational corporations operate above domestic law and without accountability to private claimants in international law, and that portends a disastrous end to life on earth.  What ought not be forgotten about the Chevron-Ecuador legal fiasco is that underneath all of the legal finger-pointing, there remains an unmitigated environmental catastrophe.  And what’s worse, it’s ongoing.  Ecuadorean operations in the area still use reckless extraction processes such as unlined oil pits, and Big Oil is bidding to reclaim a piece of the action.  People are still being poisoned, and the Amazon is still being polluted.

Meanwhile, follow the oil downstream, and Hasan Minhaj will show you (embedded below) how Brazil is newly doubling down on rain forest destruction.  I’m talking about the good old-fashioned, small-animals-fleeing-for-their-lives-from-set-fires-and-bulldozers kind of destruction that was the stuff of my childhood nightmares in the dark age before we recycled.  Human civilization and our rule of law on earth have not yet figured a way to attack this problem on the international level, much less to protect the human rights of local citizens within an offending country.  Our own alien tort statute was recently defanged vis-à-vis transnational corporations—in a case about Big Oil, by the way—and it’s not clear that the law’s landmark 1980 application in Filártiga v. Peña-Irala, bringing a foreign state torturer to justice, would even be upheld in federal court today.

The second problem is that in places where we do observe the rule of law, namely, here in the United States, legal transaction costs have spiraled so high that our courts have become available only as playgrounds for the rich and powerful, whether to settle disputes among themselves, subsidized by us, or to quash the claims that we, the little people, might dare to file in our puny arrogance.  We know this problem on the mundane, ground level as “access to justice.”  I suggest that this is the same problem that Donziger—giving him the benefit of the doubt at the get-go, for the moment, assuming reasonably that his multitude of motives must at least have included compassion for victims of pollution among the world’s poorest people—was up against in trying to take on Big Oil.  Documents in the RICO case contain tidbits about Donziger’s financing, such as a rock star’s “two equity positions in the case, one for 0.076 percent and 0.025 percent.”  It turns my stomach to read about human rights litigation as an investment opportunity, perhaps ripe for an initial public offering.  (“Call now for your free report; first time callers can get a free tenth-ounce Silver Walking Liberty Coin!”)  If that’s how we’re setting legal norms around human rights and deterring threats to human life, then that says more about us than it does about Steven Donziger.

These are the days that I want to give up on the human experiment and hunker down in willful ignorance to marshal my resources and plan for a contented retirement.

Though I’m a little short on resources.  Can I still buy shares in that Roundup litigation?

The summer beach read you've been looking for:Don Herzog on 'Defaming the Dead'

Looking for the perfect gift for that tort lover in your family?  The perfect read for the beach this summer?  Look no farther.  Pick up Don Herzog’s Defaming the Dead (Yale University Press 2017).

Herzog, a law professor at the University of Michigan, published this odd delight.  He makes a cogent argument against the common law rule prohibiting defamation actions predicated on injury to the reputation of the dead.  I was skeptical: a whole book about this little common law trivium?  Turns out, the history of defamation and the dead is compelling: at times bizarre, thought-provoking, and often funny, especially in Herzog’s capable conversational style.

Do you care what people say about you after you die?  It’s human nature to put a lot of thought into the future beyond your lifespan.  But it doesn’t really matter.  You won’t be here to be injured by defamation, nor gratified by its omission.  And if you’ve moved on to a heavenly (or other) afterlife, why would you care what mortals are saying back on earth?  Sometimes we imagine that we care about the future because we want happiness for our survivors.  But we won’t be here to know whether they have it, so is the interest really ours, or theirs?  Should the law protect either?  These problems, which Herzog posits in the beginning of the book, force some deep thought about what we want to accomplish with tort law—e.g., compensation, deterrence, anti-vigilantism—and accordingly, how we think about tort’s elements—duty, breach, causation, and injury—in the context of dignitary harms.

To oversimplify, Herzog pits what he calls “the oblivion thesis”—you can’t assert legal rights from beyond—against the Latin maxim and social norm, de mortuis nil nisi bonum, loosely meaning, “speak no ill of the dead.”  Common law defamation observes the first proposition, while as to the second, Herzog cautions: “No reason to think that just because it’s stated in Latin and has an imposing history, it makes any sense.”

Yet as Herzog then well demonstrates, we observe the Latin maxim in American (and British) common law in all kinds of ways.  The law’s purported disinterest in protecting reputations of the dead never became a rule in criminal libel.  And 19th century precedents that excluded post mortem defamation recovery seem to have been motivated by the same illogic that survival statutes were meant to redress.

Meanwhile we recognize a range of legal interests that appear to reject the oblivion thesis:  We honor the intentions of the dead in trusts and estates.  Attorney and medical privileges can survive death, even as against the interests of the living.  In intellectual property, copyright and publicity rights survive death, and trademark discourages disparagement of the dead.  Privacy in the federal Freedom of Information Act protects survivors by way of the decedent’s personal rights.  And Herzog devotes an entire riveting chapter to legal prohibitions on—and compensations for—corpse desecration.

Whether or not you’re convinced in the end that the common law rule on defaming the dead should yield, Herzog’s tour of the field is a worthwhile interrogation of much more than defamation, and much more than tort law.  His thesis unpacks the fundamental question of who we think we are, if we are so much more than the sum of our carbon compounds; and how that understanding of our personhood is effected and perpetuated by our most curious construct: the rule of law.