Was academic freedom ever really a thing? 'Fluff the paper'!

Almost 10 years ago, I was quoted in Inside Higher Ed: "When I started teaching 10 years ago, I thought universities were the quintessential market place of ideas. I was so naïve, and so, so wrong....  It's not an open market place of ideas -- I hope we can get back to that notion because our society desperately needs places where we can have truly free discussion. I just can't say I see that in the American university today."

10+10.  I've been teaching for 20 years now.

Most of my career, I've worked for two academic employers.  Both at one time had vibrant electronic mail listservs for faculty to be able to discuss, debate, and engage.

At my former workplace, I once made a posting that was critical of my school, but suggested, based on my experiences then visiting off campus at another university, some ideas that we might adopt to up our game.  My dean at that time lambasted me for using the forum to be critical rather than to praise and celebrate the institution.  That was the end of that listserv as a place for serious engagement.  Afterward, it became all about peer-to-peer "Congratulations to Professor So-and-So, Who Achieved This," followed by rousing rounds of Reply-All, "Congratulations, So-and-So!"  (See more recent news.)

At my present workplace, a dialog was recently had about the disused campus listserv.  Online and offline, faculty reminisced about when the forum was a place for vibrant engagement on hot-button issues.  Some speculated about why it no longer is.  Fear of administrative reprisal in the enforcement of vague conduct policy was cited, upon a spate of reported "investigations."  One faculty member reported that the basis for her having been found in violation of policy was that a complainant felt offended.  That accords with my experience.

In recent weeks, the following dialog has unfolded on the campus listserv.  (I emphasize that what is said in this forum is public record in the Commonwealth of Massachusetts, and I have a First Amendment right to republish it.)  I honestly don't know whether this is serious or tongue in cheek.  I don't know whether this is wicked social commentary or innocent chatter.  I do know that I'm afraid to ask.  I really hope it's commentary, because I like it.  I appreciate the earnestness and wit of the responses.  Seriously, I have smiled reading these postings.  I'm just not sure why.  I would hate to conclude that I like this dialog because my mind has become as dull as the subject.

When I started teaching 20 years ago, I thought universities were the quintessential marketplace of ideas. I was so naïve, and so, so wrong.  It's not an open marketplace of ideas.  Maybe it never was.

So here's the latest in scintillating academic engagement, now university approved!  Fluff the paper!


--

Wed., 2/7, 2:23 p.m.

If faculty and staff (and work study students) logged the hours we spend dealing with paper jams... I'm sure faculty have all had the experience of trying to print out the rubric for an assignment 15 minutes before class time when the machine jams for the 17th time that week.... 

https://www.newyorker.com/magazine/2018/02/12/why-paper-jams-persist 

--

Wed., 2/7, 3:58 p.m.

That is interesting, I never knew these copy machines were so complicated.  Still,  as I saw Elon Musk's SpaceX manage a perfect landing of the two heavy rocket boosters yesterday, I must conclude that it's not rocket science! 

--

Thu., 2/8, 9:22 p.m. 

I still think we all need a PhD in Copier Technology to operate them. 

Unfortunately, I have already risen to my level of incompetence. 

-- 

Wed., 2/14, 9:33 p.m. 

As someone with the experience of a PhD in copier technology (30+ years), I can tell you 2 secrets to keeping paper jams to a minimum: 

1) do not unwrap paper or preferably even take the wrapped paper out of the delivery box until needed (i.e. stacking on a shelf causes the paper to absorb moisture, which causes the jams) and

2) fluff the paper (place the ream in the tray and rifle/fan it) every time you put in a new ream. 

Also, I have always found Hammermill paper jams less frequently than other cheaper papers (the time and material lost isn't worth the savings!)

Hope this helps! 

'False claims of love': Mass. App. speaks from the heart for Valentine's Day

Just in time for Valentine's Day, the Massachusetts Court of Appeals rejected a divorcee's lawsuit for "false claims of love."

The plaintiff's eight claims were aptly characterized by the court as sounding in fraud, battery (i.e., contact upon improperly procured consent), infliction of emotional distress, and unjust enrichment.  All of these claims turned on misleading inducement to marry as a common, operative allegation.

Massachusetts by statute "abolished the common law actions for alienation of affection," "reflect[ing] the Legislature's public policy decision to no longer consider judicial remedy appropriate for what is only 'an ordinary broken heart.'"  Christopher Robinette wrote succinctly about the "heart balm torts"—alienation of affections, criminal conversation, seduction, and breach of promise to marry—in November at Tortsprof Blog.  Reading between the lines of the law, the court explained that legislators meant to preclude any cause of action that would require "'explor[ing] the minds of' consenting partners" (quoting precedent).

This case was not about failure to marry, but about marriage under allegedly false pretenses.  Same difference, the court held, with respect to claims of fraud or misrepresentation: plaintiff's "artful pleadings fail to hide the fact that these claims, based on events that occurred prior to the marriage, are precluded ...."  The same result controlled battery, as the consent analysis plainly would defy the inferred legislative intent.

As to IIED, the plaintiff could not meet the threshold of "extreme and outrageous," neither through allegation of an adulterous affair, even if calculated to inflict emotional injury, nor through failure to disclose "concealment of past sexual or romantic history."  Massachusetts courts at least in theory recognize a cause of action for negligent infliction of emotional distress (NIED)--the truly pure case of it is far rarer than recitation of the theory--but found the record "bereft of physical harm manifested by objective symptomatology."  On both points, one must recall Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998), per the Hon. Susan Weber Wright.  This case also well exemplifies why NIED is not sound doctrine, a point the Supreme Judicial Court might ought revisit one day.

On unjust enrichment and related theories, the court concluded that any unjustness was predicated on the earlier rejected fraud, and otherwise, the plaintiff was in no way of feeble mind.

The court summed up: "[N]ot all human actions in the context of the dissolution of a marriage have an avenue for legal recourse, no matter how much anger, sorrow, or anxiety they cause." Broadened to all affairs of the heart, the conclusion well restates essential tort policy, lest we become the caricature of the litigious society.

The case is Shea v. Cameron, No. 16-P-1479 (Mass. Ct. App. Feb. 9, 2018), per Agnes, Sacks, and Lemire, JJ.

UMass Law SALDF hosts speaker to explain service animals and ADA compliance

The UMass Law chapters of the Student Animal Legal Defense Fund (SALDF) and the Asian Pacific Law Students Associations (APALSA) co-hosted speakers including Evan C. Bjorklund, general counsel of the Massachusetts Office on Disability (MOD), in late January for a public event about service dogs and public accommodation laws.  Bjorklund's talk was recorded and produced for air by DCTV educational access.  View the video at DCTV here.

Evan Bjorklund on DCTV: Service Animals and ADA Compliance

UMass Law APALSA is led by Mali Lim, who by day is human services coordinator for community education and diversity for the City of New Bedford, Massachusetts.  UMass Law SALDF officers are Kayla Venckauskas, president; Barnaby McLaughlin, vice president; Kerina Silva, treasurer; and Kseniya Ruzanova, secretary.  Venckauskas was just appointed 2018-2019 editor in chief of the UMass Law Review and McLaughlin 2018-2019 I.T. editor.  Ruzanova is a member of Team 1L Torts.  Yours truly serves as faculty co-adviser for SALDF.

Brief argues public interest in social science research, FOI, while managing privacy risk

Representing the National Association of Scholars, UCLA Professor Eugene Volokh, UALR Professor Robert Steinbuch, and I filed an amicus brief in a California appellate case in which we argue the public interest in social science research, especially freedom of information in the area of legal education and admission to the bar, while managing risks to personal privacy.  Below is the introduction.  A longer excerpt appears here on TaxProf Blog, along with a link to the full brief in PDF.  My thanks to two formidable writing partners and a dedicated client.

Introduction

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data.

Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research of the very kind proposed by Appellants Sander and The First Amendment Coalition represents standard, indeed commonplace, research practice furthering the public interest, while employing established methodologies that minimize the risk to privacy.

#MeToo much?

On Boston Public Radio yesterday, the usually staunchly civil rights-sensitive Jim Braude, a former union attorney, and media personality I admire greatly, said he's not so worried about due process where #MeToo condemnations are concerned.  Women have suffered oppressive exploitation for so long, historically, he reasoned, that if an accused suffers an inequity here or there today, it's a sacrifice he (or she) should be willing to make in the greater arc of justice.

I've been really upset about Braude's comment.  I haven't been able to let it go.   I've been off the blog a while, while fighting toward two Jan. 31 deadlines on different projects.  But I'm jumping on here to say my piece.

In fairness, I've taken Braude out of context.  He and co-host Margery Eagan were recalling an earlier discussion about the Aziz Ansari story.  Here's the initial essay at Babe.net that stirred the pot. It's concerning; I don't mean to take away from that.  But from Damon Linker at The New Republic, here's a good opinion in The Week that explains the longer view.  I'm sure Braude doesn't favor criminal prosecution, or even civil liability, without due process.  But there are painful and meaningful consequences that fall short of those penalties, and consequences may be warranted.  More than social and professional alienation is surely called for in countless cases, cited to Time by Linker.  From a legal standpoint, these cases sorely complicate the usual innocent-until-proven-guilty imperative because of our culture's tragic record of tolerating discrimination, exploitation, and silence, and now rapid evolution of norms.  Braude fairly raises the difficult question, if not formal due process, then what?

It especially raised my eyebrows to see Margaret Atwood on the "concerned" list in Linker's column.  Here's Atwood's piece in The Globe and Mail. Atwood told the story of a fired professor at the University of British Columbia.  Her recitation included this:

[A]fter an inquiry by a judge that went on for months, with multiple witnesses and interviews, the judge said there had been no sexual assault, according to a statement released by Mr. Galloway through his lawyer. The employee got fired anyway.

It happens that at this very moment, I have charges of gender discriminatory conduct pending against me--have had, since April 2017.  I've been admonished not to talk about it, and I will not say much.  What is salient, what #MeToo and Atwood's and Linker's columns compel me to report, is that I've been told that there is no evidence to support the allegations, but I have been recommended for punishment anyway.  That was months ago, and I still await my sentencing.

In my career, I have been falsely accused of racism, falsely accused of gender discrimination, and falsely accused of other serious charges.   I have suffered real loss and real hurt as a result.  So have my family and friends.

My question for Jim Braude and anyone who would forego due process for an accused: Will you step down from your career, give up your livelihood and support for your family, upon a false allegation, because that's just a sacrifice you're willing to make for the greater arc of justice?  If I lose my job and cannot keep my daughter in college, pursuing a career in which women have been and still are marginalized, is that a worthwhile sacrifice for the greater good for gender equality?  Am I being selfish?

Pai FCC net neutrality policy steers US wrong way

Today a political cartoon from my brother, Spencer Peltz, in AP Gov at Calvert Hall, where he is student body president.

Probably needless to say, I agree with the sentiment wholeheartedly.  India's Telecom Regulatory Authority is headed wisely in the opposite direction.  Read more at Global Net Neutrality Coalition.  Tiered access, a.k.a. internet censorship, is bad for social liberals and economic conservatives.  The only winner under the Pai FCC plan is corporate oligarchy, and that's not free-market capitalism.  Oh, there're other winners, too: people and commercial enterprise every else in the world, India included.  Guess whom that leaves as losers?

Fourth Amendment privacy case, set for oral argument Nov. 29, touches on US-EU data protection divide

I've published a short preview of Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016), cert. granted, No. 16-402 (U.S. June 5, 2017) (SCOTUSblog), a Stored Communications Act, 18 U.S.C. § 2703(d), set for oral argument in the U.S. Supreme Court on Wednesday, November 29.  Here's an excerpt; link below to the full article and the ABA publication in which it appears.

U.S. Supreme Court accepts cell phone privacy case with transnational implications

A privacy case headed to the U.S. Supreme Court will give justices an opportunity to examine “the third-party doctrine” in U.S. constitutional law. The doctrine manifests a central feature of American privacy policy, marking a divide that has flummoxed transnational data transfer negotiators.

*  *  *

The urgent problem on the transnational scene is that the secrecy paradigm is incompatible with emerging global privacy norms. In EU data protection, for example, privacy follows data downstream. A person can divulge information with strings attached, and the strings are enforceable against subsequent recipients, such as Internet retailers. Even in public places, a data collector, such as a surveillance camera owner, has affirmative obligations to captured subjects. This incompatibility goes a long way to explain the incongruence of European apoplexy and American nonchalance in reaction to global surveillance by the U.S. National Security Agency.

*  *  *

However suspenseful, Carpenter proffers bad facts to kill the third-party doctrine outright. As the Sixth Circuit observed, ordinary people know that cell phones communicate with nearby towers, and their location data are not as damningly precise as GPS. The privacy intrusion was therefore modest, and statute afforded some safeguard. What will be interesting to see in Carpenter is whether more justices lend their voices to the Alito or Sotomayor position, and whether the replacement of Justice Scalia with Justice Gorsuch unsettles the Court’s fealty to originalism.

Read the article at pp. 5-6 of the fall 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the Section of International Law of the American Bar Association, available here in PDF. 

Mass. SJC remands internet jurisdiction, defamation case

The Massachusetts Supreme Judicial Court (SJC) last week remanded an internet jurisdiction case because the lower court jumped to constitutional due process arguments without first applying the state long-arm jurisdiction statute.  The case, replete with fun Internet trade names, highlights the limits of Massachusetts long-arm jurisdiction relative to the global growth in jurisdictional reach in online commerce.

SCVNGR, Inc., doing business as "LevelUp," is a Delaware-incorporated, Boston-headquartered tech company that works with customers through an app to promote participating restaurants with deals and a special payment system.  Punchh is a Delaware-incorporated, California-headquartered company with a similar business model.  Punchh works with customers in Massachusetts and with restaurants with Massachusetts locations, but Punchh denies any physical tie to Massachusetts.

At one time, LevelUp and Punchh entered into an agreement to work together.  But according to LevelUp, Punchh then bad-mouthed LevelUp to LevelUp clients.  LevelUp terminated their agreement, but the allegations state, the bad-mouthing didn't stop.  LevelUp sued in Massachusetts superior court on theories including defamation, trade defamation, tortious interference, and statutory unfair competition.  Punchh disputed personal jurisdiction.

The trial court dismissed for want of personal jurisdiction on federal constitutional due process grounds.  The trial court declined to apply the state long-arm statute because, the court explained, the parties had only argued due process.  LevelUp appealed, and the SJC transferred the case from the appeals court sua sponte.  Notwithstanding the trial court's dispositive conclusion on due process, the SJC opined, it was reversible error not to analyze the state long-arm law first.  That is to say, it was reversible error not to have observed the doctrine of constitutional avoidance.

The Massachusetts long-arm statute is not the typical sort that U.S. law students read about in civil procedure, defining state personal jurisdiction as maximally co-extensive with the limits of constitutional due process.  Rather, Massachusetts constrains long-arm jurisdiction to eight scenarios:

• (a) transacting any business in this commonwealth;
• (b) contracting to supply services or things in this commonwealth;
• (c) causing tortious injury by an act or omission in this commonwealth;
• (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;
• (e) having an interest in, using or possessing real property in this commonwealth;
• (f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;
• (g) maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim; or
• (h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, [in certain modification or enforcement proceedings].

Certainly the statute affords plenty of room to argue still over the bounds of due process.  But the terms of a statute may be subject to limiting construction.

The SJC declined to hint at the appropriate outcome under the statute, bemoaning an incomplete record.  However, the Court observed that the first four provisions of the statute, paragraphs (a) to (d), might be in play.  In a footnote, the Court recalled Calder v. Jones, 465 U.S. 783 (1984) (Justia), in which the U.S. Supreme Court allowed California jurisdiction over a non-resident defamation defendant because the defendant was alleged to have calculated its libel to cause injury in California.  As the SJC moreover observed, the U.S. Supreme Court later limited Calder in Walden v. Fiore, 134 S. Ct. 1115 (2014) (Justia), finding "minimum contacts" wanting when a non-resident's "allegedly unlawful seizure of money elsewhere caused harm to plaintiffs living in Nevada."

The Calder-Walden dichotomy, played out in a defamation context such as SCVNGR v. Punchh, serves as reminder that the United States has rather a dearth of case law in the area of long-arm Internet jurisdiction.  After the earth-rattling assertion of jurisdiction by the High Court of Australia in Dow Jones v. Gutnick in 2002, observers such as me should be forgiven for expecting that we would have moved the ball forward a good bit more in 15 years.  Internet jurisdiction remains a turbulent battlefield in lower domestic courts both here and around the world.

The case is SCVNGR, Inc. v. Punchh, Inc., No. SJC-12297 (Mass. Nov. 8, 2017).

[UPDATE: The Superior Court denied jurisdiction under the long-arm statute in September 2018.  See coverage at Massachusetts Lawyers Weekly (MLW), by Eric T. Berkman (subscription required) (quoting yours truly).  Image at right from MLW.] 

Error that led to Texas mass murder recalls recent tort claim against police after Massachusetts shooting

The Air Force yesterday admitted that it failed to pass on information about the violent record of the Texas church shooter that might have stopped him from having ready access to firearms (WaPo).  Good on the USAF, by the way, for coming clean quickly, however tragic and futile the admission is now for the 26 people who lost their lives.  That angle of the Texas story caused me to pull back up a Massachusetts Appeals Court decision that last week I filed away as "unremarkable." 

After an escalating argument in Somerville, Mass., in 2012, Santano Dessin shot Carlos Andrade "in the neck, shattering Andrade's spine and leaving him paralyzed from the neck down," the court recounted (Boston.com).  It turned out that Dessin possessed three firearms, including the one he used to shoot Andrade, and he should not have had them because of a prior juvenile delinquency adjudication.  The Somerville Police Department at one point had confiscated the three firearms from Dessin, but then returned them erroneously.  Despite subsequent notice to the department by public safety authorities and the Superior Court that Dessin remained disqualified from possessing firearms, police failed to re-confiscate them.  Andrade and family sued police for negligence under the Massachusetts Tort Claims Act (MTCA).

The court rejected liability under the MTCA § 10(e), which, typically of state sovereign immunity laws, disallows tort claims predicated on "any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization."  The court reasoned, "A local police department's duties to receive, store, and dispose of weapons when a person's firearms license is revoked or denied 'are central to the functions that are immunized from liability by § 10(e)'" and "'cannot be parsed from the remainder of the process'" (quoting Smith v. Registrar, 66 Mass. App. Ct. 31, 33 (2006)).

Guns and Somerville, Mass., share a revolutionary history.

However routine and appropriate a construction of statute the Mass. App. decision is, it points up a policy problem that played out with tragic consequences in Texas.  Gun control opponents including the NRA routinely contend that gun control proponents' job-one should be enforcing the laws that are already on the books, rather than lobbying for new ones.  On the enforcement question, we should all be on the same page.

The merits of our unusual cultural value in gun ownership, as expressed in the Second Amendment, and the appropriate scope of reasonable regulation, may be debated.  Nevertheless, at present, we hold gun ownership as a presumptive, fundamental right.  At the same time, declining to regulate gun ownership on the front end of the transaction means that, on the back end, we must vigorously enforce properly adjudicated deprivations of the right.  Public safety--the competing fundamental right to life--requires no less.

In the area of freedom of expression, we vigorously, presumptively, and even prophylactically protect free speech.  But after proper adjudication, we allow proscription of obscenity, criminal punishment of conspiracy, and enforcement of defamation liability.  Perhaps we ought exercise greater care with prophylactic protection of Second Amendment rights, because the potential consequences of error are grave.  But that wasn't the problem in Massachusetts or Texas, where the risk of error was real and known.

The case is Andrade v. City of Somerville, No. 16-P-1407 (Mass. App. Ct. Oct. 30, 2017).

UIA Congress studies global legal issues: irresponsible journalism, anti-corruption in sport, and intellectual freedom in fashion

Just this week I returned from the annual world congress of the Union Internationale des Avocats, which did not disappoint.  Lawyers from around the world gathered in Toronto to exchange experiences and ideas on a range of cutting-edge themes.

Highlights of this year’s UIA for me included the media law and sports law panels.  The media law panel was coordinated by Emmanuel Pierrat, of Cabinet Pierrat, and Jean-Yves Dupeux, of Lussan & Associés, both in Paris.  The sports law panels were coordinated by Fernando Veiga Gomes, Abreu Advogados, Lisbon; Robert J. Caldwell, Kolesar and Leatham, Las Vegas; and Emanuel Macedo de Medeiros of the International Centre for Sport Security, an NGO based in Doha.

Liability for Journalism

The media law program asked panelists to examine how "irresponsible" and "responsible" journalism are faring in today's legal systems.  Thierry Bontinck of Daldewolf SCRL in Brussels ran through recent developments in the European Court of Human Rights.

We’ve always known that the European approach to freedom of expression is characterized more by balance than the presumption-rebuttal approach of the U.S. First Amendment.  That tension goes a long way to explain U.S. reluctance to enforce foreign libel judgments over the decades, a reluctance codified in the SPEECH Act during the Obama Administration.  But Bontinck’s analysis shows a recent trend in the ECtHR to further downplay the primacy of free speech, putting it on par with competing interests, such as privacy, fair trial, and law enforcement.

It is not clear to me whether this trend will further alienate Europe from fundamental rights analysis in U.S. constitutional law, or might be running in parallel to a trending subordination of free speech in our own courts.  Frankly I would welcome the change here were rights of reputation and privacy to elbow a little more room for themselves in our First Amendment law.  But I would be less eager to embrace a free speech trade-off with more abrupt implications of state power, such as surveillance by law enforcement.

Litigation against Saudi Arabia and the FBI

Also on the media law panel was Thomas Julin of Gunster Yoakley & Stewart, P.A., Miami.  Julin gave an expert overview of developments in American media law.  Yet most captivating was his update on the efforts of families to sue Saudi Arabia in S.D.N.Y. for September 11 losses, more than US$100bn in damages, under Congress’s remarkable waiver of the Saudis’ foreign sovereign immunity.

Julin represents the award-winning Florida journalist Dan Christensen in FOIA litigation against the FBI, now going to the Court of Appeals, for records related to 9-11 investigation of the Saudis.  Needless to say, plaintiffs in the New York litigation are carefully watching the collateral FOIA litigation, which could unlock a vault of evidence.

Julin pointed out that Saudi moves toward commercial and political liberalization, such as a planned IPO of the oil industry in New York and even the recent announcement that Saudi women would be allowed to drive cars, might be a function of U.S. liability exposure.

Whither Goes Sullivan?

In running down U.S. legal developments, Julin talked of course about the Hulk Hogan case, Bollea v. Gawker ($140m verdict, $31m settlement) and the Pink Slime settlement (Beef Products, Inc. v. ABC, Inc.).  Although the Pink Slime settlement was confidential, Julin said that SEC filings disclosed a $177m pay-out from ABC News parent Disney to the beef industry (on its $1.9bn claim), and that doesn’t include losses covered by insurance.  That might be the biggest defamation settlement in the world, ever, Julin noted.

From the audience, Jim Robinson of Best Hooper Lawyers, Melbourne, Australia, added to the mix Rebel Wilson’s record-setting A$4.57m win in Victoria.  All this led Julin to express some concern about whether New York Times v. Sullivan today carries waning cachet (a mixed blessing in my opinion).

Arbitration in Sport

In sports law, a first panel compared case outcomes across international dispute resolution systems.  Moderated by Caldwell, the panel comprised David Casserly of Kellerhals Carrard in Lausanne, Switzerland; Paul J. Greene of Global Sports Advocates, LLC, in Portland, Maine; Roman E. Stoykewych, senior counsel for the National Hockey League Players Association in Toronto; and Clifford J. Hendel of Araoz & Rueda in Madrid.

One case the panel examined involved the hit of NHL player Dennis Wideman on linesman Don Henderson in January 2016.  The video (e.g. SportsNet Canada) is not pretty, but it turns out there is much more than meets the eye.  In the video, at first blush, Wideman seems quite deliberately to hit the linesman from behind.


In context, however, Wideman was coming off of a concussive blow into the boards himself.  Stoykewych explained that Wideman was woozy, and what looks like a raising of his stick to strike Henderson can in fact be explained as a defensive maneuver whilst skating into an unidentifiable obstacle, if not a perceived opponent on the attack.  Casserly moreover suggested that Wideman’s plight might be likened to the exhausted fighter who inexplicably starts beating on an intervening referee.  The NHL rule on intentional strikes is all the more confounding, as it seems to define intent with an objective reasonableness test.

Ultimately the players’ union won reduction of Wideman’s heavy sanction to something like time served.  The case occasioned a vibrant discussion of evidentiary procedures, decision-making standards, and review standards in sport arbitration.  In the bigger picture, the case makes for a fascinating study of civil culpability standards and comparative dispute resolution mechanisms.

Integrity in Sport

Moderated by Macedo de Medeiros, the second sports law panel comprised Randy Aliment of Lewis Brisbois Bisgaard & Smith LLP in Seattle, Washington; Matthew Shuber of the Toronto Blue Jays Baseball Club; and Veiga Gomes.  The panel occasioned introduction of the Sport Integrity Global Alliance, a meta-organization born in 2015 to bolster integrity in global sport governance.  Not many people need to persuaded any longer, since the FIFA Sepp Blatter fiasco, of the problem of corruption in world sport.  Boston's and Hamburg’s disgruntled withdrawals from Olympic contention spoke volumes about skepticism of sporting mega-events, and I for one wonder at Eric Garcetti’s embrace of Olympic promise for Los Angeles.

Yet the corruption problem infects more than just the highest echelons of sport governance, as money filters through so many political layers and across so many social sectors.  Veiga Gomes illustrated for example:  Ninety percent of European footballs clubs do not publish their books, enjoying utter opacity in their accounting.  At the same time, 77% of European clubs are insolvent or “close to insolvent.”  Meanwhile, FIFA, UEFA, and the European football associations generate more than US$3bn in annual revenue.  So where is all that money going?  Thus, Veiga Gomes concluded, a “major transparency problem” renders football vulnerable to corruption and organized crime.

Strike a Pose

Though I was not able to spend as much time there as I liked, the UIA commissions on contract law, fashion law, and intellectual property law put on a fabulous full-day working session on “launching a fashion label business,” ranging across the areas of law practice implicated by a fashion-label client.  Sharing the helm of this ambitious program was an IP lawyer whom I admire, Gavin Llewellyn, of Stone King LLP, London. 

Taking part in the program was my friend and esteemed colleague from UMass Dartmouth Public Policy, Professor Nikolay Anguelov.  Dr. Anguelov talked essentially about the thesis of his book, The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society.  His talk made a vital and unusual contribution by making lawyers in the business think about the externalities of their commercial work in many dimensions, including social, economic, and environmental.  Credit to Llewellyn for bringing in Anguelov.

For every snippet of the fashion law program I was able to catch, I learned something.  My favorite takeaway was a discussion by Renata Beržanskienė, of the Sorainen law firm in Vilnius, Lithuania, about the “Jesus Jeans” case.  The case involves clothing and its advertising by the Robert Kalinkin fashion house.  Provocative images of a shirtless Jesus wearing Kalinkin jeans drew a public morals fine from the Lithuanian consumer protection authorities under national advertising law.  Presenting issues in free expression, commercial speech, and public authority to regulate morality, the case is pending before the European Court of Human Rights.

Compare Mark 4:14 (ERV) (“‘They will look and look but never really see.’”) with Jordache 1983 (“You’ve got the look.").