I'm pleased to announce the publication of TORTZ: A Study of American Tort Law, volume 1 of 2.
Hard copies can be printed at Lulu.com for just $30 plus shipping. A free PDF can be downloaded from SSRN.
Eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability. After two pilot deployments of content, in 2021 and 2022, this book will be my 1L students' Torts I textbook in fall 2023.
I anticipate publication of volume 2 in 2024.
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The case involves athlete likenesses in fantasy sport leagues. Plaintiffs are a Singapore-incorporated fantasy sport provider that invested big money to develop non-fungible token and other electronic products making licensed use of the names and likenesses of co-plaintiff cricket athletes. The defendant business operated a less fancy but "explosive[ly]" popular online fantasy league service using the players' name and likenesses without licenses.
The court determined that Indian law does recognize right of publicity, inspired in part by the example of statutory tort actions in the United States. Accordingly, "passing off" is essential to infringement, the court held, meaning that customers must reasonably understand the defendant's proffered product as bearing the subject's endorsement.
The court denied preliminary injunction. In the instant case, evidence was lacking that the defendant made such a representation or that reasonable users made such a mistake. To the contrary, the defendant online disclaimed any affiliation with or license from the depicted players.
The court also recognized a constitutional dimension to the position of the defense in the case, opining that "use of celebrity names, images for the purposes of lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses would be permissible as facets of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India and would not fall foul to the tort of infringement of the right of publicity."
The case is Digital Collectibles Pte. v. Galactus Funware Technology Pte., 2023:DHC:2796, CS(COMM) 108/2023, 2023 LiveLaw (Del) 345 (Delhi High Ct. Apr. 26, 2023) (India), decided by Judge Amit Bansal, who holds an LL.M. from Northwestern University.
I didn't know that kangaroo leather was used to make shoes. Or anything. I didn't know "kangaroo leather" was a thing. So this news was simultaneously stomach-turning and a relief to me.
Kangaroo leather is a thing, apparently prized for its strength and durability. According to People for the Ethical Treatment of Animals (PETA), somewhere between 1.5 and 5 million kangaroos are killed annually for "k-leather" clothing and accessories. (NPR reported 1.3m in Australia in 2021, per a government count there.) PETA described violent killing of adults and joeys by hunters; I'll refrain from sharing the horrifying details.
PETA named Nike, Puma, Adidas, Diadora, Versace, and Prada as companies that used kangaroo leather, though all except Adidas have now announced that they'll stop. Footy Headlines reported in March that Adidas will offer 2024 kangaroo football (soccer) boots.
A California representative proposed a federal ban on kangaroo leather in the U.S. House of Representatives in 2021. ESPN gave some press to the Kangaroo Protection Act during the FIFA World Cup in Qatar in December, but the bill never made it out of committee.
Photos: Kangaroos at the Australia Zoo in 2005, RJ Peltz-Steele CC BY-NC-SA 4.0.
A Massachusetts Superior Court in March ordered the district attorney to release investigative records to the family of a man killed by police.
The privacy of public officials in the technology era has strained conventional accountability rationales for transparency. Since the advent of access to public information as a democratic norm, public officials and public figures have decried purported invasions of their privacy. The very notion of privacy in modern tort law, for better and worse, traces its roots to precisely such whinging in the late nineteenth century. Access usually prevailed.
Yet in the technological era, privacy complaints have gained new currency, and some of it is legitimate. Even, or perhaps especially, in the intensely emotional context of high-profile police shootings, interests are amped up on both sides. Of course, victims and families demand understanding and accountability, and they are entitled to it. At the same time, it's harder than ever to be a police officer, and passions that expose public servants and their families to harassment and threats pose a genuine policy problem.
The two sides collided in Massachusetts over the death of Anthony (Antone) Harden in Fall River in 2021. The 30-year-old was shot twice and killed by police in his bedroom. Police investigators concluded that Harden had used a steak knife to attempt to stab the shooter's partner in the neck and head. A district attorney (DA) investigation in 2022 ruled the homicide justified.
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| Surveillance video shows officer arriving at Harden's apartment. |
The DA also withheld other records identifying responding personnel, including video interviews with emergency medical technicians. WBUR reported that the EMTs said they did not see the steak knife that police said necessitated lethal force.
Mack sued the DA under the state public records law, and the Superior Court in March granted his request for records on all counts. With regard to the identities of police and EMTs involved, the court wrote:
Upon balancing the rights of the parties, the public's need to access against the privacy rights at issues here, I find that the equities favor disclosure. The public officials here are not acting in the capacity of private citizens but in the course of their duties. Plaintiff has a right to have a full understanding of the facts leading to his brother's death including the identities of the public officials involved to ensure accountability and transparency. The failure to disclose this information would raise questions amongst the public about why this information was being withheld, which would only serve to undermine the integrity of the law enforcement departments involved and those reviewing their conduct. Any right to privacy that a public official might have under these circumstances, which is de minimis under the circumstances presented here, is overwhelmed by the public's right to know.
Before the resolution of the public records case, in January, the Harden family threatened Fall River with a $50m lawsuit for Harden's death, if the records were not released.
The case is Mack v. Office of the District Attorney, No. 2284-CV-00248 (Mass. Super. Ct. Suffolk County Mar. 6, 2023), decided by Justice James Budreau.
Known for the truth and reconciliation processes that followed Apartheid, South Africa has been a font of experience and acquired wisdom about the role of transparency and truth in redressing mass atrocity. In this book, released in the fall from Bristol University Press, the South African editors compiled and co-authored some of the best and latest thinking and reflection on the function and debated efficacy of apology.
This is the précis.
There has recently been a global resurgence of demands for the acknowledgement of historical and contemporary wrongs, as well as for apologies and reparation for harms suffered. Drawing on the histories of injustice, dispossession and violence in South Africa, this book examines the cultural, political and legal role, and value of, an apology. It explores the multiple ways in which "sorry" is instituted, articulated and performed, and critically analyses its various forms and functions in both historical and contemporary moments. Bringing together an interdisciplinary team of contributors, the book's analysis offers insights that will be invaluable to global debates on the struggle for justice.
Even setting aside mass atrocities such as Apartheid, the theory of apology has resonance in tort law. "Apology laws" in the states seek to render apologies inadmissible as evidence in later litigation, especially in medical malpractice. Proponents posit that apology aids in healing and even averts litigation. That premise, and the efficacy of apology laws, is much studied and debated.
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| A masked Prof. Smythe previews the book at the annual meeting of Law and Society in Lisbon, Portugal, in July 2022. RJ Peltz-Steele CC BY-NC-SA 4.0 |
Professor Sindiso Mnisi Weeks, a valued colleague at UMass Boston who generously has participated in my comparative law class in the past, contributed the chapter, "In Pursuit of Harmony: What is the Value of a Court-Ordered Apology?" University of Wisconsin constitutional comparatist Professor Heinz Klug authored, "Amnesty, Amnesia, and Remembrance: Self-Reflections on a 23-Year-Old Justification." Among all of the chapters, I especially appreciated the heart-rending history "On Not Apologising: Winnie Madikizela-Mandela and the TRC Hearing into the Mandela United Football Club" by Canadian Professor Shireen Hassim.
Abstracts of all chapters and the book's front matter are available at Bristol University Press Digital.
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As I wrote in 2021, the movie Dark Waters (2019), based on a true story, first brought PFAS to my attention. I'm happy to report that we've since replaced almost all of our PFAS-coated cookware. And just yesterday, I followed the recent custom of removing a burrito from its plastic-coated-paper wrapper before heating it in the microwave.
When John Oliver gave his classic treatment to PFAS in 2021, Europe was moving to regulate it, but the United States was doing very little. Per John Oliver's invitation, I confirmed that my local water authority in Rhode Island was not testing for PFAS in drinking water.
Now, with Biden Administration support announced in March, the U.S. Environmental Protection Authority has a PFAS website and proposed regulations for drinking water. The proposal would drop acceptable levels of six PFAS chemicals from 70 to 4 parts per million (ppt).
That's a start, but not a solution.
PFAS might now be in the drinking water of as many as 200 million Americans, The Guardian reported in March. Research shows human health risk upon any exposure to PFAS, so no safe level is known. The EPA's own guidelines since last year have called for voluntary limits on two PFAS chemicals at 0.02 and 0.004 ppt, a Harvard expert explained. Meanwhile, it's not clear that scientific testing is accurate enough to detect PFAS levels that low. Thus, the EPA proposal is vulnerable to criticism for not reaching the full range of PFAS chemicals and not setting maximum levels low enough. But the challenge truly to ensure human health might be practically insurmountable.
Spurred by burgeoning state regulation meanwhile, the private sector is ramping up capacity to test for PFAS nationwide. In February, Maine Laboratories became the first commercial lab in that state to offer testing. Maine Labs sells test kits for drinking water, waste water, ground water, and soil, with a two-week turnaround for results. Maine Labs's CEO is Katie Richards, a close friend and former college roommate of one of my sisters.
A New York legal aid attorney was arrested, along with her dog, when she started video-recording police, and then she sued for civil rights violation.
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| Harvey (Compl. ¶ 36) |
Griffard began video-recording with her phone. After she crossed the street at an officer's instruction, she started writing down NYPD car plate numbers. An officer refused to give her his business card upon her request, the complaint alleges. Instead, the officer handcuffed Griffard and arrested her, taking her and Harvey into police custody. She was held at the 79th precinct for eight hours, while Harvey, a nine-year-old Yorkie, was held in the kennel.
Admittedly, what caught my attention in the case was not so much the facts, head-shaking inducing as they are, but the story of Harvey. Journalist Frank G. Runyeon, reporting for Law360, and NBC News 4 New York, also were enchanted.
Griffard and her attorney, David B. Rankin, of Beldock Levine & Hoffman LLP, must have been conscious of Harvey's intoxicating adorableness, too, because they included gratuitous glamor shots in the complaint—as I've reproduced here.
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| Harvey (Compl. ¶ 20) |
Griffard make no such claim, though, rather using Harvey as evidence to demonstrate her emotional distress at being separated from him and being given no information about his whereabouts while they were held—and, between the lines, to tug at the heartstrings and demonstrate the utter absurdity of her arrest and detainment.
One paragraph of the complaint does allege that seven-pound "Harvey was traumatized by the incident and now takes medication to treat his anxiety disorder." And the count of unreasonable seizure points out that "Harvey missed his dinner."
The case is Griffard v. City of New York, No. 512993/2023 (Sup. Ct. Kings County filed May 2, 2023).
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| Autodesigner via Wikimedia Commons CC0 1.0 |
Arising from verdict in a $37m case against PM and co-defendants, including R.J. Reynolds Tobacco Co. and Star Markets, the decision broke no new ground, but might be instructive for students of product liability.
On appeal, PM did not "dispute that the plaintiffs introduced sufficient evidence of agreement between it and the other cigarette entities to deceive the public about the dangers of smoking.... Further, [PM did] not dispute the evidence of medical causation, i.e., that smoking causes the type of cancer from which Greene suffered."
Rather, PM asserted that the plaintiff failed to connect causally her choice to smoke to specific misrepresentations. The court wrote that PM viewed the evidence too narrowly, and that the plaintiff sufficiently "met this requirement by introducing evidence of her detrimental reliance on the conspiracy's misrepresentations regarding filtered cigarettes. [PM] represented that such products, including Marlboro Lights, delivered lower tar and nicotine and were a healthier alternative to regular cigarettes."
The plaintiff also met the burden of proving causation on a count of civil conspiracy. "The conspirators expressly misrepresented to the public that they would not have been in the business of selling cigarettes if cigarettes were truly dangerous," the court reasoned. Consequently, "the jury could have found that [the plaintiff] would have smoked less, or quit sooner, absent the conspiracy's campaign of fraud and deception."
PM also pointed to the court's 2021 adoption of the Third Restatement approach to causation (on this blog) to argue that the jury was erroneously instructed on "substantial causation." The court ducked the question by finding that counsel had not preserved their objection to the jury instructions.
Finally, the court upheld the award as against PM challenges to the trebling of damages under Massachusetts consumer protection law and the commonwealth's 12% judgment interest rate.
The case is Greene v. Philip Morris USA Inc., No. SJC-13330 (Mass. May 9, 2023). The unanimous opinion was authored by Justice Scott L. Kafker, who also wrote the opinion in the 2021 causation case.
The vexing problem of proof of damages in defamation and privacy has turned up recently in the Massachusetts Court of Appeals and the Court of Justice of the European Union. Meanwhile, the Massachusetts Gaming Commission borrowed European privacy principles for new data security rules.
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| Tiny turkey. Stéphanie Kilgast via Flickr CC BY-NC-ND 2.0 |
The Appeals Court in April vacated dismissal in a business dispute over turkeys. Nonprofit and business collaborators fell out over spending on variably sized turkeys for a charitable food event. The defendant wrote on social media that the plaintiff "stole" money intended for charitable purposes.
The complaint, which was filed by a Massachusetts lawyer, was messy—narrative in excess, numbering in disarray, and allegations jumbled between liability theories—so it was difficult for the trial court to parse the pleadings. With the aid of oral argument on appeal, the court teased out the defamation count and determined that it had been dismissed for want of pleaded loss.
However, Massachusetts is among jurisdictions that continue to recognize the historical doctrines of libel per se and slander per se. Those doctrines allow some pleadings to proceed without allegation of loss, and for good reason. Reputational harm is exceedingly difficult to prove, even when it seems self-evident. After all, whom should a plaintiff call to testify to prove her damaged reputation, people who now think an awful falsity about her? Witnesses will be less than eager. Even in case of a business plaintiff that suffers economic loss, it can be exceedingly difficult to tie specific losses to specific assertions of falsity.
The historical approach allows a plaintiff to demand presumed damages. That's a messy solution, because the jury is entrusted with broad discretion to assess the damages. On the plaintiff side, perhaps that's OK; we just juries to measure intangible losses all the time, as in the case of general damages for injuries, or pain and suffering. The defense bar and allied tort reformers have rebelled against presumed damages, though, arguing that they afford juries a blank check. That unpredictability makes it difficult for defendants and insurers to assess their liability exposure. Defense-oriented tort reformers have been successful in extinguishing per se defamation actions in many U.S. states.
Massachusetts splits the difference, I think in a healthy way. Per se actions are preserved, but the plaintiff is entitled to nominal damages, plus proved actual losses, but not presumed damages. I mentioned recently that the E. Jean Carroll case has spurred overblown commentary about the potential of defamation law to redress our misinformation problem. The unavailability of per se actions in many states is one reason that defamation is not up to the job. A defamation action for nominal damages helps, though, coming about as close as U.S. jurisdictional doctrine allows to a declaration of truth—which is what defamation plaintiffs usually most want.
Allegation of a crime, such as theft or misappropriation of charitable funds, fits the class of cases that qualify for per se doctrine, whether libel or slander. There is some room debate about whether social media better fits the historical mold of libel or slander, but that's immaterial here. The allegation of "stolen" money fit the bill.
The Appeals Court thus vacated dismissal and remanded the claim for defamation and related statutory tort. The court clerk entered the Memorandum and Order for Judges Mary Thomas Sullivan, Peter Sacks, and Joseph M. Ditkoff in Depena v. Valdez, No. 22-P-659 (Mass. App. Ct. Apr. 28, 2023).
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| Austrian post box. High Contrast via Wikimedia Commons CC BY 3.0 DE |
The Court of Justice of the European Union (CJEU) also recently tussled with a problem of proof of damages. The court held early in May that a claimant under the EU General Data Protection Regulation (GDPR) must claim harm for a personal data processing violation, but need not meet any threshold of seriousness.
The court's press release summarized the facts in the case:
From 2017, Österreichische Post collected information on the political affinities of the Austrian population. Using an algorithm, it defined "target group addresses" according to socio-demographic criteria. The data thus collected enabled Österreichische Post to establish that a given citizen had a high degree of affinity with a certain Austrian political party. However, that data processed were not communicated to third parties.
The citizen in question, who had not consented to the processing of his personal data, claimed that he felt great upset, a loss of confidence and a feeling of exposure due to the fact that a particular affinity had been established between him and the party in question. It is in the context of compensation for the non-material damage which he claims to have suffered that he is seeking before the Austrian courts payment of the sum of €1,000.
The plaintiff endeavored to quantify his emotional upset, but in the absence of communication of the conclusions about the plaintiff to to any third party, the claim of harm was thin. Emotional suffering resulting from the mere processing of personal data in contravention of one's advance permissions seems minimal. Accordingly, the Austrian courts, following the example of neighboring Germany, were inclined to disallow the plaintiff's action for failure to demonstrate harm.
Harm has been a sticking point in privacy law in the United States, too. Privacy torts are a relatively modern development in common law, and they don't import the per se notion of historical defamation doctrine. Tort law balances culpability with harm to patrol the borders of social contract. Thus, intentional battery is actionable upon mere unwanted touching, while merely accidental infliction of harm requires some degree of significance of injury. Defamation law arguably defies that dynamic, especially in per se doctrine, in part for the reasons I explained above, and in part because, for much of human history, personal integrity has been as essential for survival as physical security.
Not having inherited the paradigm-defying dynamic, privacy law has posed a puzzle. Scholars disagree whether damages in privacy should follow the example of business torts, requiring at least economic loss; the example of emotional distress torts, requiring at some threshold of severity; or defamation per se torts, recognizing some sui generis harm in the disruption of personal integrity. As personal data protection has grown into its own human right independent of privacy, the problem has been amplified, because, exactly as in the Austrian case, a right against the non-consensual processing of data that are personal, but not intimately personal, is even more difficult to generalize and quantify.
The problem is not only a European one. In the United States, courts and scholars have disagreed over when claims in the burgeoning wave of state data protection laws, such as the Illinois Biometric Information Privacy Act, can satisfy the "case or controversy" constitutional requirement of jurisdiction. Failure to see a sui generis harm in privacy violations means, arguably, that there is no "case or controversy" over which courts, particularly federal courts, have competence.
The CJEU balked at Austrian courts' unwillingness to see any wrong upon a claim of only intangible loss. But the court agreed that the plaintiff must demonstrate harm. Hewing to the text of the GDPR, the court reasoned that a plaintiff must show a violation of the regulation, a resulting harm, and a causal connection between the two. Thus, harm is required, but there is no requirement that the harm meet some threshold of seriousness or economic measure.
The CJEU decision was touted in headlines as "clarifying" the law of damages under the GDPR, while the stories beneath the headlines tended to do anything but. Some writers said that the court raised the bar for GDPR claims, and others said the court lowered it. Confusion stems from the fact that the court's decision spawns subsequent many questions. Conventionally, the GDPR leaves the quantum of damages to national courts. So how must a claim of de minimis harm be measured on remand? Are nominal damages sufficient compensation, or must the data protection right be quantified?
Moreover, Sara Khalil, an attorney with Schönherr in Vienna, observed that the court left out a component of tort liability that national courts sometimes require: culpability. Is there a minimal fault standard associated with recovery for mere data processing? Because tort law ties together the elements of harm and fault, at least in some jurisdictions, the one question necessarily begets the other.
RW v. Österreichische Post AG, No. C-154/21 (May 4, 2023), was decided in the First Chamber of the CJEU.
Data Security in Gambling in Massachusetts
Policymakers and courts on both sides of the Atlantic are wrestling with the problems of contemporary personal data protection. And while the gap between the GDPR and patchwork state and federal regulation in the United States has stressed international relations and commerce, it's no wonder that we see convergence in systems trying to solve the same problems.
To wit, the Massachusetts Gaming Commission has employed recognizably European privacy principles in new data security rules. For Israeli law firm Herzog Fox & Neeman, attorneys Ariel Yosefi, Ido Manor, and Kevin David Gampel described the overlap. The commission adopted the regulations for emergency effect in December 2022; final rules were published in April.
The attorneys detailed the requirements of gambling operators:
The regulations are 205 CMR 138 and 205 CMR 248 (eff. Mar. 9, 2023, publ. Apr. 28, 2023).
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Schoolchildren play at a Goboué, Côte d'Ivoire, school built by Nestlé and cocoa partners. Nestlé via Flickr CC BY 2.0. |
The program contemplated various legal vehicles for liability, including the alien tort statute (ATS) and the Trafficking Victim Protection Act (TrVPA). And don't count out ordinary, common law tort, said Terry Collingsworth, executive director of the International Rights Advocates.
The program description set the alarming scene:
There is no childhood for boys and girls who are trafficked as sex slaves or for imperiled cobalt miners in the Democratic Republic of the Congo working without protective gear, or for children who are forced to fight as soldiers or girls conscripted into forced marriages. Nor is there a childhood for enslaved young boys as young as five who are sold to human traffickers and made to work as fishermen for up to 12 hours a day, seven days a week.
Despite a range of UN protocols and statutory accountability mechanisms, abusive child labor practices persist.
The reach of the 1789 ATS has been limited in recent years by Supreme Court rulings requiring that a matter "touch and concern" the United States. Collingsworth—whose commentary I found most informative, and a fellow Duke Law alum—criticized this interpretation of the ATS as reading non-extraterritoriality into the statute, "as if it should only apply if the kids were kidnapped from the United States."
The "read in" did contradict decades of federal court precedent, dating to the 1980s. At the same time, statutory interpretation recognizes a presumption against extraterritoriality, so the courts arguably strayed from first principles.
Even with the knowledge requirement, " sadly, there's enough of that to keep us busy for the rest of eternity," Collingsworth said.
Provided jurisdiction and venue can be managed in U.S. courts, ordinary, common law tort theories can be helpful: assault and battery, infliction of emotional distress, and unjust enrichment. The challenge there, Collingsworth explained, is that "it takes years." He said a pre-2001 case against Exxon is going to trial only now.
"It shouldn't be that hard to enforce internationally agreed norms prohibiting the abuse of children," he said.
Another angle of attack on the problem panelists said, is section 307 of the U.S. Tariff Act, which prohibits the import of goods "mined, produced, or manufactured wholly or in part in any foreign country by convict labor or[] forced labor or[] indentured labor." In a related vein, I myself have seen certifications on products, and I wouldn't mind seeing more.
At the international level, the problem with abundant human rights instruments is a lack of enforcement mechanism, panelists said. Without enforcement, agreements and treaties "only offer cover for companies," Collingsworth said.
A virtual attendee asked about defensive claims that child labor is culturally normal or provides a worthwhile avenue of economic opportunity. Collingsworth said that child advocates hear those arguments "all the time: ... someone says it’s always been that way, that’s how they learn a skill or trade." The speaker, he said, "is usually a rich guy benefiting from the labor.
"If you ask the kids if they’d rather work or go to school, that’s an easy one."
The ABA International Law Section hosted the panel "Childhood Denied: A Lifetime Lost: Conventions and Cases" on January 25. International law and gender consultant Elizabeth Brand moderated. Other panelists, besides Collingsworth, were Shandra Woworuntu, chair of the International Survivors of Trafficking Advisory Board; Jo Becker, advocacy director for the children's rights division at Human Rights Watch; Will Lathrop, field office director of the Ghanaian International Justice Mission.
