There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott to Lochner to Roe v. Wade to Citizens United, and even the recent Second Amendment decisions of Heller and McDonald, these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so is the subject of this article. I leave for another occasion the legal and practical questions of how to implement such a unanimity requirement.
While the audacity of this idea is perhaps remarkable, flying as it does in the face of our unbroken history of Supreme Court cases decided by majority vote of the Justices, I would ask the readers’ indulgence or suspension of disbelief for long enough to at least consider my argument. Since I have no power to implement this idea, which depends solely on the cogency of the reasons which support it – and I invite discussion and contestation of the idea – the proposal can truly, if somewhat ironically, be called "modest."
Here in its final form, this article hit my desk just as Democratic presidential candidate Beto O'Rourke appears on the news
evincing receptivity to some form of Supreme Court packing, and in a
season just after the dramatic unfolding of the Kavanaugh hearings.
Duncan has been working on his modest proposal for a while longer than
these events have been on TV, and his modest proposal has stood the
test of peer reviews by many (me included). I have been privileged to
hear Professor Duncan speak on this subject more than once, and I have
learned something new every time. This article marks a
worthwhile addition to the discussion of our Court, and the recollection
that neither its composition nor its procedural customs are fixed in constitutional
stone.
Two events coming up at UMass Dartmouth and UMass Law!
First on Tuesday, March 26, at 4 p.m. in the Grand Reading Room of the Carney Library at UMass Dartmouth,Ricardo Serrano, a first-year UMass Law student from Puerto Rico, will participate in a program of the UMass Dartmouth English Department on the critical role of public radio amid natural disaster and in times of human need—specifically the role of the University of Puerto Rico-Mayagüez student-run radio station during Hurricane Maria. Serrano was president of the radio station at the time of the hurricane and creator of the Radio Colegial podcast Fatiga Mental. No advance registration is required. From UMass Dartmouth Public Affairs:
The power of non-profit radio to sustain a community will be discussed by a panel hosted by the English Department and The Public’s Radio on Tuesday, March 26, at
4 p.m. in the Grand Reading Room. Panelists include Ricardo Serrano, a UMass Law student who ran the University of Puerto Rico radio station during Hurricane Maria in 2017; Professor Lisa Maya Knauer (Sociology/Anthropology),
who studies the impact of community radio in Guatemala; Professor Richard Peltz-Steele (Law); and Sally Eisele, News Editor at The Public's Radio. Full-time Lecturer Caitlin Amaral
(English), a former award-winning writer and producer for WGBH Interactive in Boston, will moderate the conversation.
Next, from 9 a.m. on Thursday, March 28, in the Moot Court Room of the UMass Law School,the UMass Law hosts the symposium, Navigating a New Reality: A Multi-Platform Look at Media and the Law. With compelling speakers from legal education and law practice all day long, the program will conclude in the afternoon with a keynote address from media attorney Richard P. Flaggert, a partner at DLA Piper. From DLA Piper:
A dual-qualified (US/UK) attorney and solicitor, Richard Flaggert
focuses his global practice on entertainment, media, and communications
matters, as well as counselling clients in intellectual property
transactional matters, brand strategy and integrity, enforcement of
trademark and copyright assets worldwide, prosecution and risk analysis,
licensing, false advertising and new media matters.
Ric regularly negotiates and provides advice relating to talent,
sponsorship, advertising, entertainment, publishing and other media
issues for professional sports and sports/esports franchise and facility
owners, sports media, consumer products, and technology clients. He
also counsels clients with respect to licensing, and rights acquisition.
Ric regularly provides counsel to programming networks and other
rights holders across a full spectrum of legal and strategic business
matters, including domestic and international affiliate distribution
agreements, licensing, digital, multiplatform and satellite
distribution, new media, Internet, and emerging technologies, as well as
FCC and other regulatory matters.
Richard is a member of various outside counsel teams, providing
day-to-day oversight of branding, media, broadcasting and entertainment
matters, and directs strategy for several global franchises, including
at ESPN.
A number of stories have broken in the last couple weeks that, ordinarily, I would like to write about on this blog. I've been traveling a good deal and unable to keep up, so here's a short, uh, roundup. Hat tip to my Torts II class, which is ever vigilant.
Strict product liability—Roundup. In phase one of a bifurcated trial proceeding, plaintiff Edward Hardeman succeeded in causally tracing his cancer to glyphosate, the active ingredient in Roundup herbicide. (NYT, Mar. 19.) Bayer, which purchased Roundup maker Monsanto, saw its stock price tumble on the German exchange, Fortune reported. This finding follows the notorious $289m award (later reduced to $78m) entered in favor of Dewayne Johnson against Monsanto in California state court in August 2018 (Phys.org), now on appeal (Justice Pesticides). Recap is tracking Hardeman v. Monsanto, 3:16-cv-00525, in federal court in the Northern District of California.
Gun liability—Sandy Hook. The Connecticut Supreme Court issued its long awaited ruling in the Sandy Hook families' case against gun maker Remington, allowing the case to go forward on one theory of Connecticut consumer protection law. (NYT, Mar. 14.) The court delivered 4-3 upon the dubious conclusion that the U.S. Congress, in immunizing gun makers from liability upon a host of tort theories, did not mean to preempt remedies under state consumer protection statutes such as the Connecticut Unfair Trade Practices Act. The dissent was unpersuaded. Meanwhile many a pundit had commented on the gun regulatory response pending in New Zealand since the Christchurch attack, marking the contrast with U.S. legislative paralysis amid shootings here. The case is Soto v. Bushmaster Firearms International, LLC, No. SC-19832.
Wrongful death, collateral estoppel—Aaron Hernandez. The Massachusetts Supreme Judicial Court reinstated the conviction of former NFL player Aaron Hernandez in the June 2013 murder of Odin Lloyd. Lower courts had thrown out the conviction after Hernandez hanged himself in prison in 2017. Massachusetts law appeared to require that the conviction be vacated upon the common law doctrine of "abatement ab initio," because the defense appeal was not resolved when the defendant died. Instead the Massachusetts high court held that the doctrine is antiquated, and the record should read "neither affirmed nor reversed." In the case of Lloyd, the victim's mother had settled her civil claim. But the Court recognized
the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion.... There are a host of potential other interests than can be affected by the outcome of that prosecution and, although we must be mindful not to let any one of those other interests override a defendant's rights, they are worthy of recognition when considering the best approach to follow when a defendant dies during the pendency of a direct appeal.
The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. Mar. 13, 2019).
Invasion of privacy, infliction of emotional distress—Monica Lewinsky. John Oliver did a brilliant segment on, and interview with, Monica Lewinsky on his Last Week Tonight. Looking back at comedians' crass jokes in the 1990s—Oliver includes himself, but it's Jay Leno who is cringeworthy—makes one uncomfortably aware of how far #MeToo has evolved our perception of power dynamics in the workplace. The sum of the experience is newfound empathy and more than a little angst over online bullying. I now follow Lewinsky on Twitter, as she's a more effective anti-bullying spokesperson than Melania Trump.
Defamation, Supremacy Clause—Summer Zervos. The Appellate Division of the New York Supreme Court ruled that Summer Zervos's defamation suit against President Trump may go forward despite the President's constitutional objections. Zervos alleges that Trump defamed her through his spiteful attacks on her credibility over claims of his sexual misconduct after she was a contestant on The Apprentice. In Clinton v. Jones style, the President sought to have a stay in the action until his White House service concludes. The U.S. Supreme Court rejected that claim in Clinton, ruling that the lower court could manage the case with deference to the demands of the presidency—a conclusion, incidentally, that might have been proved erroneous in light of subsequent events. Anyway President Trump tweaked the tack, arguing that because this case arises in state law in state court, vertical federalism, as expressed in the Supremacy Clause, should not permit the arguably untenable subservience of a sitting President to the supervisory authority of the state court. The Appellate Division concluded 3-2 that the problem can be managed; as in the past, for example, a President might testify via video. Some court orders might violate supremacy, the court explained, such as a contempt ruling, but that mere possibility does not warrant stay of the action in its entirety. The Appellate Division also ruled that the charge essentially of "liar" is not mere rhetorical hyperbole, but is capable of defamatory meaning. The case is Zervos v. Trump, No. 150522/2017 (N.Y. App. Div. Mar. 14, 2019).
Criminal libel, First Amendment—Montana statute. The U.S. District Court for the District of Montana struck down the state's criminal libel statute for want of an actual-malice-as-to-falsity standard of fault. The case arose from an ugly dispute in election of a county district judge. The statute came close to the actual malice standard, requiring knowledge of a statement's defamatory character, but making no mention of recklessness. The federal court acknowledged that the state high court had read First Amendment standards into other state statutes. But the criminal libel law had been applied without modification. Moreover, although the law originated from 1962, before New York Times v. Sullivan and Garrison v. Louisiana in 1964, the legislature had amended the statute more than once, in fact once amending it to ensure truth as a defense, so had passed up chances to bring the statute into full constitutional conformity. Recap is tracking Myers v. Fulbright, No. 9:17-cv-00059-DWM-JCL (D. Mont. Mar. 18, 2019). Professor Eugene Volokh wrote about the case for Reason.
For the Federalist Society SCOTUScast podcast series, I recorded a commentary on the U.S. Supreme Court oral argument in Thacker v. Tennessee Valley Authority, which occurred in January. You can read more about Thacker, and see an excellent video the Federalist Society produced, via my January 18 blog entry.
The Tennessee River dips into northern Alabama, where the accident in
Here is background on the case from the Federalist Society:
On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.
In 2013, Anthony Szozda and Gary and Venida Thacker were
participating in a fishing tournament on the Tennessee River. The
Tennessee Valley Authority (TVA) had a crew near the river, trying to
raise a downed power line that had partially fallen into the river
instead of crossing over it. The crew attempted to lift the conductor
out of the water concurrent with Szozda and the Thackers passing through
the river at a high rate of speed. The conductor struck both Thacker
and Szozda, causing serious injury to Thacker and killing Szozda. The
Thackers sued TVA for negligence. The district court dismissed the
Thackers’ complaint for lack of subject-matter jurisdiction.
On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed
that judgment. Although the act creating the TVA waives sovereign
immunity from tort suits, the Court held that the waiver does not apply
where the TVA was engaged in governmental functions that were
discretionary in nature.
Applying a test derived from the Federal Tort
Claims Act, the Court determined that the TVA’s challenged conduct fell
within this “discretionary-function exception” here, and immunity
therefore applied.
The Supreme Court granted the Thackers’ subsequent petition for
certiorari to address whether the Eleventh Circuit erred in using a
discretionary-function test derived from the Federal Tort Claims Act
rather than the test set forth in Federal Housing Authority v. Burr,
when testing the immunity of governmental “sue and be sued” entities
(like the Tennessee Valley Authority) from the plaintiffs’ claims.
Counsel for Thacker and counsel for TVA stuck to their guns in the oral argument. Thacker's position was to interpret the "may sue and be sued" language that governs the TVA and other New Deal authorities to be broadly permissive of tort suits, stopping only to preclude "grave interference" with the executive branch prerogative. The TVA meanwhile insisted that it is entitled to a broad discretionary function immunity, like that which Congress built into the later enacted Federal Tort Claims Act.
Questions from the Court tried to pull both counselors toward the possible middle ground of a sovereign immunity for governmental functions and not for commercial functions. But neither counsel was willing to bite. That led to a lively oral argument. Thacker's case seems the stronger, but it is unclear how the Court will get to either result.
Answering a certified question from the federal district court, the Massachusetts Supreme Judicial Court (SJC) held unanimously today that a state statute of repose for personal injury claims bars a mesothelioma negligence suit against General Electric (GE) in the case of a former nuclear-plant construction worker exposed to asbestos. The case is Stearns v. Metropolitan Life Insurance Co., No. SJC-12544 (Mass. Mar. 1, 2019) (PDF), certified by No. 1:15-cv-13490-RWZ (D. Mass. May 14, 2018).
Whereas the time limit of a statute of limitations runs from the time a would-be plaintiff becomes or should become aware that he or she has suffered an injury, a statute of repose sets a hard deadline contingent on an objectively verifiable event, irrespective of the plaintiff's experience. Massachusetts law has a statute of repose, Mass. Gen. L. ch. 260, § 2B, that is generous to the construction industry, relative to other states' laws. When personal injury arises from improvement to real property, tort claims are barred six years after the improvement is opened to use.
Brockton, Mass., native Wayne F. Oliver worked as a pipe inspector for a contractor of GE on the installation of turbine generators at the Pilgrim Nuclear Station at Plymouth, Massachusetts, and at the Calvert Cliffs Nuclear Power Plant in Maryland in the 1970s. Installation specifications called for the use of asbestos insulation, to which Oliver was exposed over the course of years. In April 2015, Oliver was diagnosed with mesothelioma, a known health consequence of asbestos exposure, and in July 2016, at age 67, he died.
Plaintiffs in some toxin claims have trouble navigating statutes of limitations, because litigants dispute when an ill plaintiff should have realized that the illness was consequent to exposure. Suing and non-natural causation are not necessarily the first thoughts of a patient diagnosed with cancer. But mesothelioma victims often surmount statutes of limitations hurdles, because the disease has a long latency period, and then, as in Oliver's case, manifests onset and death in short order. Statutes of repose then become problematic in cases arising from construction exposures.
Piping in turbine building at Russian nuclear power plant, 1986
(RIA Novosti archive, image #447414, by Petrouhyn, CC-BY-SA 3.0).
The SJC in Stearns recognized the well accepted proposition that statutes of repose may work a corrective injustice against injured plaintiffs, especially in case of diseases with long latency periods. But the greater policy aim of statutes of repose is to time-limit liability for commercial actors, lest productive development become unaffordable for fear of perpetual liability exposure.
Contingent on objectively verifiable events, statutes of repose tend to be unforgiving of lapses in time. The SJC observed that various statutes of repose in Massachusetts have not yielded in prior cases, even upon a defendant's intentional wrongdoing or fraudulent concealment of danger, or a victim's mental illness or ongoing medical treatment. The statute of repose for medical malpractice contains an exception in the event of a foreign object left in a person's body, so, the SJC reasoned, the legislature knows how to make an exception when it wants to. The statute of repose in construction is "ironclad."
Associate Justice Cypher
In a footnote, the court added:
The plaintiffs point out that a number of other State Legislatures have effectively exempted asbestos-related illnesses from their respective statutes of repose concerning improvements to real property. We encourage our Legislature to consider doing the same should it determine that such an exception is consonant with the Commonwealth's public policy.
The opinion in Stearns was authored by SJC Associate Justice Elspeth B. Cypher, a Pittsburgh native. In the fall 2019 semester at UMass Law School, Justice Cypher is scheduled tentatively to co-teach, with former dean Robert V. Ward, Jr., Race, Women’s Rights, Gender Identity and the Law.
There's been a blustering rash of hand-wringing in journalism and First Amendment circles over the recent concurrence to cert. denial by Justice Thomas in McKee v. Bill Cosby (SCOTUSblog). The case would have asked when a victim of sexual assault becomes a limited-purpose public figure after publicizing her allegation. Based on First Amendment doctrine dating to the 1960s, famously including New York Times Co. v. Sullivan (U.S. 1964) (Oyez), a limited-purpose public figure must prove actual malice to prevail in a defamation claim. That's very hard to do. The First Circuit affirmed dismissal in favor of Cosby.
"Actual malice"—ill named, as it does not have to do with anger or ill will, which is "common law malice"—is akin to the recklessness standard of tort law. In a defamation context, "actual malice" is said to mean "knowledge of falsity or reckless disregard as to truth or falsity." Supreme Court precedents late in the civil rights era amped up "reckless disregard" so much that for many years, actual malice seemed to be a nearly "fatal in fact" test.
Based only on casual observation, I posit that actual malice's rigor has been weakening in recent years. Courts have begun to recognize the need to fine tune the balance between reputational and speech rights. Meanwhile, "actual malice" has had a rough go in the world, even among our fellow human rights-loving western democracies. Actual malice has been largely rejected as a functional standard for its insufficient protection of reputation as a human right countervailing the freedom of expression. (My colleague Prof. Kyu Ho Youm paints a different picture. I deeply admire Prof. Youm, a dear friend, and his work, which I have assigned students to read. But I sharply disagree with his conclusion on this point.)
In his concurring opinion in McKee, Thomas challenged the constitutional imperative of the actual malice standard, which is so much higher than negligence and strict liability. His argument was not so narrow, however. Broadly, he proposed that the Court reconsider the fundamental premise that the the federal Constitution, through the First Amendment, should reshape state tort law, as the Court held it did in the civil rights-era cases. Thomas is a champion of textualism and originalism, and it must be admitted that the Court's First Amendment doctrine from the latter-20th century is on thin ice in those schools of constitutional interpretation.
This blog, any blog, is far from an adequate venue to tackle this question. I just want to do my part to raise consciousness of Thomas's proposition, and to dare to say, I agree. For many years now, I have harbored a deep suspicion of Sullivan and progeny. In my academic circles, especially in the free speech and civil liberties crowd, I have felt something like a church deacon harboring a dark secret. No longer; I confess:
Actual malice swung the pendulum way too far in favor of defendants. I get why, and I appreciate the good intentions. Sullivan arose against the tragic reality of the Jim Crow South and the potential national crisis precipitated by desegregation. But even Anthony Lewis, in his definitive book on Sullivan, Make No Law, recognized that the Court's federalization and constitutionalization of state defamation law had the ill effect of freezing the process of common law evolution. As a result, we have been deprived of the opportunity to experiment with fair and equitable policy alternatives, such as media corrections as a remedy.
I'm not arguing to "open up our libel laws," quite as President Trump proposed. But I'm with Justice Thomas. Sullivan is not holy writ.
Tomorrow the UMass Law Review will ceremoniously launch its volume 14. Included therein is a deep, thought-provoking work on animal rights and welfare by Barnaby McLaughlin, '19, himself a teacher in the English Department at Rhode Island College. The paper, "A Conspiracy of Life: A Posthumanist Critique of Appoaches to Animal Rights in the Law," is available online from the law review. I'm proud to say I was a reader on this project, though it was decidedly one of those I-got-more-than-I-gave scenarios. I'll take my Ph.D now, please. Here is the abstract.
Near the end of his life, Jacques Derrida, one of the most
influential philosophers of the twentieth century, turned his attention
from the traditional focus of philosophy, humans and humanity, to an
emerging field of philosophical concern, animals. Interestingly,
Derrida claimed in an address entitled The Animal That Therefore I Amthat,
since I began writing, in fact, I believe I have dedicated
[my work] to the question of the living and of the living animal. For me
that will always have been the most important and decisive question. I
have addressed it a thousand times, either directly or obliquely, by
means of readings of all the philosophers I have taken an interest in. .
. .
Derrida’s insistence that the question of the animal has always been
the focus of his work reflects an interesting turn in philosophy at the
end of the twentieth century, where the primacy of the human was
rightfully being challenged, and the lives of animals were being
considered on their own terms. Increasingly, the shift in focus from the
primacy of the human to a more thoughtful consideration of animals has
moved outside of just philosophy into other academic fields. These
developments have been reflected in the emerging interdisciplinary field
of posthumanism. Posthumanism, inclusive of all disciplines, seeks to
shed the legacy of liberal humanism and the primacy of the human and
instead consider all the interests of those that the human shares the
world with (including animals, plants, technology, et cetera). Curiously
however, while posthumanism has had an impact in most disciplines,
outside of a few scholars, it is absent in the legal field (both in
academia and in practice). Where the status of animals in the law has
been challenged, it has largely been done through arguments derived from
the legacy of liberal humanism. The two most significant challenges to
the status of animals in the law have been mounted by the Nonhuman
Rights Project in the United States, and the Great Ape Project, which
has primarily been successful in New Zealand and Spain. Both projects
have sought to expand legal rights to hominids, though each has adopted
different strategies. The Nonhuman Rights Project has sought to use
arguments within existing legal paradigms to force the courts to
recognize chimpanzees as “persons,” whereas the Great Ape project has
intentionally avoided court (for fear of setting unfavorable precedents)
and favored pressing change through legislation. Ultimately however,
both projects are thoroughly rooted in liberal humanism and advance
their arguments through proximity claims—the idea that certain animals,
in these cases, apes, deserve legal consideration because of their
similarity to humans.
This paper is an interdisciplinary comparative analysis of the
Nonhuman Rights Project’s failures in the United States and the Great
Ape Project’s success in New Zealand. The success of the legislative
approach of the Great Ape Project demonstrates the need to approach
these arguments outside of the courtroom to avoid hostile judges,
philosophical legacies, and archaic precedents. However, the Great Ape
Project does not go far enough in expanding the rights of other beings
as it relies on emphasizing similarities with humans as the sole reason
for extending rights, leaving other beings, even higher order mammals
like dolphins, without inclusion— and a real possibility that any such
inclusion would forever be cut off. Therefore, this paper proposes the
need for a posthumanist foundation for pursuing the rights of other
beings through legislative means.
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