Poli sci panels span U.S. con law, Tunisian Arab Spring, Japanese ag reg, Chinese investment in Africa

On the final day of the annual meeting of the New England Political Science Association, Saturday, April 27, I was treated to more intriguing papers and especially enriching discussion on constitutional law with co-panelists and discussants in the Public Law Section.  For the time being, I'm skipping presentation of my own work with Polish attorney Gaspar Kot—and my thanks to Kevin McGravey, Merrimack College, for his thought-provoking feedback—and sharing highlights of colleagues' work.

Right to education.  A common theme on our late-morning panel was probing the line between civil rights as passive protections and civil rights as affirmative entitlement.  Michael Paris, College of Staten Island CUNY, is working on a book that will consider the problem of race consciousness/race blindness relative to the right to education.  That's the same lately embattled right that rests at the heart of the federal court claim to civics education pending against the State of Rhode Island; the Government filed its motion to dismiss a scant few weeks ago.  Compare A.C. v. Raimondo, No. 1:18-cv-00645 (D.R.I. complaint filed Nov. 28, 2018) with Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996) (holding, 4-3, state bound by affirmative duty to provide equal opportunity of access to education for Connecticut schoolchildren).

U.S. Supreme Court in politics.  Kyle Morgan, Rutgers University, has coded, on various bases, no fewer than 11,000 U.S. congressional press releases about U.S. Supreme Court decisions.  He reports that this feat has caused more than one laptop crash.  Morgan is prepared to demonstrate that the way Republicans and Democrats frame disapproval of Supreme Court rulings differs fundamentally.  In short, Republicans bemoan the Court as anti-majoritarian, while Democrats frown on perceived abuses of democratic process.  As a result, the two sides talk about Court rulings without actually talking to each other in comparable language.  Morgan promises that his subsequent work will look at how the two sides might be brought together, that is, whether they can be made to care about the other's perspective.

This 1917 Louisiana poll tax receipt (public domain) well post-dates the 1870
15th Amendment.

'Resistant compliance' under the 14th and 15th Amendments.  My runaway favorite paper of the morning came from Lauren Foley, Western Michigan University, who is studying what she has termed "resistant compliance" with constitutional law.   That's when an actor complies with the law but takes a course of action that undermines its implementation—maybe openly, maybe quietly; maybe intentionally, maybe carelessly.  In this piece of her work, Foley compares white supremacist resistant compliance with the 15th Amendment, specifically the use of devices such as poll taxes and literacy tests to undermine black access to the polls while technically complying with the law, with University of Michigan resistant compliance with the state affirmative-action ban in an effort to prioritize diversity while without focusing on race.

Take a second to think that over.  "There are many reasons not to equate literacy tests with affirmative action," Foley conceded in her paper.  Motive matters, I thought.  But I admit, by the end of it, she had me.  Foley's interest is not in the policy priorities, no matter whether "revered or reviled," she wrote, but in the tools of resistant compliance.  Her comparison in that vein is not only apt, but illuminating.  Foley's work is informed by anonymous sources within Michigan higher ed and casts an unfamiliar light on how admissions officials have used technology to approach the diversity problem.  Those evidentiary revelations alone have the makings of an intriguing book.

Protesters march on Avenue Habib Bourguiba in downtown Tunis, angry
over unemployment, rising prices and corruption, January 14, 2011
(VOA photo by L. Bryant).

Tunisia's Arab Spring.  In the early morning hour, I hit a comparative session on Asia and Africa and learned a great deal from and Ann Waldemar, University of Bridgeport, and Nicole L. Freiner, Bryant University.  Waldemar is investigating the unusual success of the Arab Apring in Tunisia (home of RightsCon 2019), in contrast with its MENA neighbors (at least to date).  (See James M. Dorsey writing on Libya and Egypt just Saturday.)  Especially interesting from a comparative-law perspective, incorporation of Islamic law into the new Tunisian regime has been a piece of the puzzle in public acceptance, Waldemar reports.

Rice law and policy.  Freiner is investigating the surprisingly compelling story of rice in Japan, or, more broadly, the development and regulation of agriculture relative to priorities as far-ranging as GMOs, public health, and foreign development.  She had some fantastically illustrative visual from the rice fields, and her research has been on the ground, talking with farmers.  Her new book from Palgrave is Rice and Agricultural Policies in Japan: The Loss of a Traditional Lifestyle (2019).  (Law school programs on food law and regulation, take note: Freiner would be a great guest to bring in from Ph.D. world, and U.S. food law and policy studies could benefit from an infusion of eastern comparativism.  Freiner is a neighbor of mine from Barrington, R.I., so invite me, too, and I'll drive.)

Chinese legitimacy in Africa.  In the afternoon, Drake Long, Georgetown University, talked about China in Africa.  For his master's work, he's taking a deep dive into China's vigorous strategy for international legitimacy, countering a historic deficit in international communications.

China's Belt and Road Initiative (CC BY-SA 3.0 by Tart)

Perhaps needless to say, this move coincides with a trend of waning U.S. influence, or "crisis of U.S. legitimacy."  East Asia has been circumspect of Chinese influence, Long explains, but Africa has been receptive.  Long has traced the history of Sino-African relations from the 1940s to China's post-Mao economic reconstruction, to Angola oil investment, to Xi Jinping's pledge of tens of billions of dollars to African development amid the Belt and Road Initiative.  Belt and Road will cost $900bn according to China, Long says, or from $1tn to $8tn according to observers.  The ties to Africa meanwhile multiply.  For example, more Anglophone African students now go to China than to the United States or United Kingdom.

Does this mean an inevitable careening arrival at Chinese hegemony?  Well, there is an enduring debate within in China, Long explains, in trying to sell African development as worthwhile relative to unmet social and economic needs at home.  Whereas Americans will sign up for the foreign inculcation of democracy, no exceptionalist ethos so clearly dominates Chinese popular opinion.  Recent maneuvering within Chinese party leadership and propaganda machinery suggest awareness of this domestic ideological deficit and emerging strategies to address it.

Poli sci papers embrace power plant implosion, populist revolution, and constitutional convention

Here are a few of my favorite gleanings from yesterday's day one of the 2019 annual meeting of the New England Political Science Association in Portland, Maine, April 26-27, kicking off with the Brayton Point tower implosion this morning, Saturday, April 27.

---

The Brayton Point cooling towers are no more
(CC BY-SA 3.0 Wikimaster97commons).

Imploded towers invite study of environmental law, policy, and urban aesthetics

Professor Aaron Ley, on the faculty at URI Political Science and also a town council member in Bristol, R.I., is working at the point where environmental law and policy meet public aesthetics.

After presenting on Friday, April 25, Ley left NEPSA to get back to the Massachusetts South Coast and witness the implosion Saturday morning, April 26, of the cooling towers at Brayton Point.  The towers have become a defining feature of the skyline in the region, so their absence in the vicinity of Fall River, Mass., and eastern Rhode Island will be an adjustment for locals (me included).  Though oft invoked as a symbol of adverse environmental impact, Ley explained at NEPSA, the towers functioned actually to mitigate the impact of the coal-fired power plant they grace, because they cooled water before it was released back into the Taunton River, sparing fish and their eggs from destructive warm water.

Ley is working interdisciplinarily with colleagues Bryce DuBois, lecturer at the Rhode Island School of Design, and Katherine LaCasse, in psychology at Rhode Island College, to complete survey and conventional research into public perceptions of urban spaces relative to environmental law and policy.  At NEPSA, Ley detailed the fascinating history of policing pollution in American waterways, from riverkeepers back to bounties on the 19th-century Hudson.

---

Are we living in Google and Facebook 'company towns'?
They have courts now

Professor Kevin McGravey at Merrimack College is collecting and analyzing social media cases to see whether the First Amendment public forum doctrine still has some vitality in deciding these disputes, such as the President's ability to mute or block Twitter users.  See Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018) (holding President's blocking of users on Twitter violated First Amendment requirement of viewpoint neutrality; now on appeal to Second Circuit). Cf. Packingham v. North Carolina (U.S. 2017) (holding social media restriction on registered sex offender violated First Amendment.)

The Gulf Shipbuilding Corporation, pictured here after WWI, owned the
Chickasaw, Ala., company town at issue in Marsh v. Alabama after WWII.
From Destroyer History Foundation.

McGravey thinks that the old company town case of Marsh v. Alabama (U.S. 1945) is relevant.  He concedes that the Marsh analogy to a social media platform was rejected by the court in Prager University v. Google, LLC, No. 17-CV-06064-LHK, 2018 WL 1471939 (N.D. Cal. 2018) (now on appeal to Ninth Circuit), in which the court refused to intervene in YouTube classifications and restrictions of PragerU's conservative political videos.  (See Eric Goldman's skepticism of the Marsh theory.)  But McGravey disagrees on a number of grounds, including the exclusivity of certain social media platforms as access avenues to public officials.

A company-town analogy doesn't get all the way to where we should be, McGravey admits, but the public forum doctrine might ought be reformed and extended to achieve worthwhile policy goals such as viewpoint neutrality on Facebook.  Still sounds like a stretch?  Well, consider, Mark F. Walsh in the latest ABA Journal reports on Facebook's plans to create a quasi-judicial appellate body to hear free speech claims.  Google already is adjudicating—internally and not transparently—right-to-erasure claims at the bidding of European data protection authorities.  Is that the town hall bell of the company town I hear?

---

Federalism panel spans Rehnquist Court, religious freedom,
and the 1825 Constitutional Convention that never was

A smattering of views from a panel on federalism and the administrative state: 

• Christopher McMillion, Oklahoma Baptist University, is looking at the deep underpinnings of the "Rehnquist revolution" in federalism.  It's not about conservative politics, nor about federal power per se, he explained.  Rather, it's about protecting individual liberties—and actually the same kind of force can be witnessed in 10th-Amendment state jealousy of local officials' prerogatives relative to federal immigration enforcement.  
• Beau Breslin, Skidmore College, is working on a book on the constitutional conventions the United States has never had.  Surely Article V of the U.S. Constitution contemplated conventions with some periodicity.  What if we had had one about every human lifespan?  An 1825 Constitution probably would have opened with a lengthy declaration of rights and would have created an explicit voting franchise for white landholders, Breslin theorizes.  Oh, and Madison would have been so peeved that he sat out the Second Convention.  What would have been the implications in U.S. history for the Constitution thusly revised?  What would the Constitution look like after a 2022 convention?  Breslin examines these questions in part with reference to the real evidence of evolving state constitutions.

• 

  Maine Gov. Baxter with Irish Setter Garry Owen
  (public domain)

  James Stoner, Louisiana State University, exposed the thinly veiled nuance of religious freedom questions in the United States, from Employment Division v. Smith (U.S. 1990) to present.  The courts have looked the other way from legislative prayer, for example, and for that matter from the intertwining of government and religious practice since the days of George Washington himself.  He concludes that the judiciary is ultimately not the best forum for resolution of debate over religion in American public life.
• Sean Beienburg, Arizona State University, is researching the curious political journey of 1921-1925 Maine Governor Percival Baxter (namesake of Maine's beautiful Baxter State Park).  Republican Baxter advocated against the Ku Klux Klan at a time the Klan was making inroads with Maine Republicans.  He also staked out the political territory that would become Republicans' 20th-century economic libertarianism.  I note that Baxter was also an animal rights advocate before there was such a thing, and Maine's beautiful Baxter State Park is named for him.

---

Populist revolution and American electoral politics
are both about more than red versus blue

I moderated and discussed on an afternoon panel with three fantastic papers.

• Erik Cleven, Christopher Galdieri, and Ashley Motta of Saint Anselm College are studying "down-ballot roll-off," when voters stop voting as they move down the ballot from "US Senator" to "Town Dogcatcher," or, really, "Register of Probate."  They set out to see whether there is merit in criticisms that voting college students dilute local electoral power because college students aren't interested in local races.  That turns out not to be true—not entirely true, anyway.  Looking at New Hampshire data, they found that new voters in a jurisdiction are responsible for down-ballot roll-off, and college students might just be part of that.  Other correlations arise with low education and lack of partisan tags to indicate party affiliation.  I suspect that an underlying cause is low information, a problem that dovetails with my own interest in transparency and affirmative disclosures of information to correct democratic deficit in developing political systems.



The "heartland-coastland" divide is more complicated than it seems and not
merely an expression of partisan sympathies, R.I. political scientists June
Speakman and Matthew Ulricksen show in new research.

• Two papers were strikingly complementary.  Isaac Effner, Brown University, took the normative lens off of "populism" to recount how a populist labor movement effected the 1934 West Coast waterfront strike and contributed dramatically to the evolution of organized American labor and 20th-century norms for the protection of American (and for that matter global) workers.  Don't be too quick to judge populism in scoffing at frustrated voters who support Trump, is the lesson, because populism per se can be a force for the vital expression of human rights, notwithstanding a temporary flirtation with demagoguery along the way.  Effner notes that similar populist motivations animated support in the last election for both Donald J. Trump and Bernie Sanders.
• And there comes to bear the remarkable work of Matthew Ulricksen, Community College of Rhode Island, and June Speakman, Roger Williams University and a representative in the Rhode Island legislature and former member of my Town Council in Barrington, R.I.  Ulricksen and Speakman showed some stunning maps of voting patterns in Rhode Island in the last election—I'd like to share, but they're not copyright-clear for my reuse; see the New York Times results.  Suffice to say the electoral maps reveal a deep divide in what looks like what Speakman and Ulricksen call a "heartland-coastland" divide, the former, Rhode Island's interior, Trump red, and the latter, in the salt air, Clinton blue.  Problem is, a number of data sets about who these voters are—wealth, ethnic identity, even partisan affiliation—do not actually bear out the divide.  What does?  Spoiler alert: population density.  What's more, because there is correlation with population density and not partisan loyalty, the heartland proves as receptive to Bernie Sanders's message as to Donald Trump's.  Speakman and Ulricksen identify one factor that explains voter behavior across the board: being "mad as hell."  The research leaves off there, but implications and questions abound for what will make an effective political movement in the future to capture increasingly alienated voters—and what conditions might trigger a populist revolution analogous to the 1934 general strike, or something bigger.

The annual meeting of the New England Political Science Association wraps up today, when I'll be presenting some findings on access to information and social and economic development in eastern Europe.

Claim to Facebook fortune dismissed in Mass. appeal

The Massachusetts Court of Appeals Wednesday affirmed dismissal in tort, contract, and equity claims by a software developer against principals behind Facebook-predecessor company ConnectU.

The Winklevosses (CC BY-SA 2.0 cellanr)

Wayne Chang (commencement address at UMass Amherst in 2016) alleged that he was entitled to a some portion of the $65m in cash and stock received by ConnectU's twin brothers and "bitcoin billionaires" Cameron and Tyler Winklevoss in settlement with Facebook founder Mark Zuckerberg.  That mediated settlement ended litigation in California and Massachusetts in 2008; Chang initiated the instant action in 2009.  Bringing the case to a close at last, the Massachusetts Appeals Court agreed with the lower court that Chang had severed business ties with the Winklevosses before they entered settlement negotiations with Zuckerberg.  The court also affirmed award to the Winklevosses of $30,000 in costs.

The case is Chang v. Winklevoss, No. AC 18-P-329 (Mass. Ct. App. Apr. 24, 2019).

Right of publicity protects personality, not Warren-Brandeis privacy, explains new work among four by UMass Law faculty

Four recent and compelling publications from my colleagues at UMass Law examine privacy and the right of publicity, LGBTQ civil rights, legal pedagogy, and law librarianship in public service.

Prof. Marlan

Professor Dustin Marlan has done the hard work of building the philosophical foundation for a personality-based right of publicity, disentangled from Warren-Brandeis privacy.  "Unmasking the Right of Publicity" is available on SSRN and forthcoming in the Hastings Law Journal.

This Article examines the potential influence of psychoanalytic thought on the conception of publicity as a right distinct from privacy.

In the landmark case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank articulated the modern right of publicity. The right is now most often seen to protect the strictly commercial value of one’s “persona”—the Latin-derived word originally meaning the mask of an actor. Among other criticisms, the right of publicity is frequently accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for an alienable, proprietary right in one’s personality. Why might Judge Frank have been motivated to create a transferable intellectual property right in the monetary value of one’s persona distinct from the psychic harm to feelings, emotions, and dignity protected under the rubric of privacy?

Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through seminal works including Law and the Modern Mind, Why Not a Clinical Lawyer-School?, and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of infantile and unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between dual parts of the personality supported the realist interpretation of lawmaking as a highly subjective and indeterminate activity. Indeed, though Judge Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a great deal of attention to the personality in his scholarly works.

In the spirit of Judge Frank’s psychoanalytic jurisprudence, this Article suggests that the right of publicity’s aim, apart from the personal right to privacy, may be understood through the psychoanalytic conception of the personality—one divided into public and private spheres. In the psychological sense, the term persona, or “false self,” refers to an individual’s social facade or front that reflects the role in life the individual is playing. That is, as a metaphor for the actor and their mask, the persona is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions, and subjective interpretations of reality anchored in their private “true self.”

However, the law’s continued reliance on a dualistic metaphor of the personality—i.e., divided sharply into inner (private) and outer (public) subparts—appears misguided amidst a growing technology, internet, and social media-driven need for interwoven privacy and publicity rights. The Article thus concludes by examining intersubjective personality theory, which might provide a useful conceptual update in its view of the personality as contextual, relational, and dependent on social interaction—rather than divided sharply between the public and private.

Prof. Ho

Professor Jeremiah Ho has authored a piece building on the Masterpiece Cakeshop case (U.S. 2018) and continuing his important work in LGBTQ civil rights.  "Queer Sacrifice in Masterpiece Cakeshop" is available on SSRN and forthcoming in the Yale Journal of Law and Feminism.  Here is the abstract:

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s interest in affirming the primacy of marriage. Masterpiece, however, demonstrates that when the litigants’ sexual identities seem less assimilated and more destabilizing to the status quo, the Court becomes much less inclined to protect them from discrimination and, in turn, reacts by reinforcing its interest to preserve the status quo—one that relies on religious freedoms to fortify heteronormativity. To push this observation further, this Article explores how such failure of interest convergence in Masterpiece extends Derrick Bell’s thesis on involuntary racial sacrifice and fortuity into the LGBTQ context—arguing that essentially Masterpiece is an example of queer sacrifice. Thus, using the appositeness of critical race thinking, this Article regards the reversal in Masterpiece as part of the contours of interest convergence, queer sacrifice, and fortuity in the LGBTQ movement. Such observations ultimately prompt this Article to propose specific liberationist strategies that the movement ought to adopt in forging ahead. 

Prof. Flanagan

Professor Rebecca Flanagan has authored an article in legal pedagogy in which she endeavors to bring some clarity to the process of preparing law students for this rapidly evolving market. Better by Design: Implementing Meaningful Change for the Next Generation of Law Students was published at 71 Me. L. Rev. 103 (2019).  Here is the abstract:

This article presents a fictitious, utopian law school to challenge the assumption that legal education has met adequately the challenges of preparing law students for an evolving profession. By presenting the utopian ideal, the author highlights how adoption of best practices in learning and cognitive sciences could transform legal education from a highly criticized institution to a dynamic, self-transforming academy designed to meet the changing needs of students and the practicing bar.

Librarian Jessica Almeida has co-authored an article on law librarianship in public service, "Hosting a Successful Transcription Party," appearing in the AALL Spectrum, March/April 2019, at 42.  The work describes how New England law librarians and the Rhode Island State Archives used a transcription event to combine service and outreach to the community.

W. Kamau Bell solves racism.Or at least makes some progress....

My wife and I were privileged last night to see W. Kamau Bell speak at the Zeiterion Theatre in New Bedford, the show part of the New Bedford Lyceum.  (Also in the audience: our friends, colleague Professor Justine Dunlap and UMass Law alumni City Councilman Hugh Dunn and attorney and radio host Marcus Ferro.)  Bell is a comedian, but at the same time, most definitely a social activist, performing through multiple media, including television, podcasts, and books.  He is most familiar to me from his Emmy-winning show on CNN, United Shades of America, which returns to the small screen with its season 4 premiere, about megachurches, on April 28 (cordcutters pay per episode).

Tongue in cheek, Bell titled his show at the Zeiterion, "The W. Kamau Bell Curve: Ending Racism in About an Hour," a play on the title of the controversial 1994 book, The Bell Curve, by Richard J. Herrnstein and Charles Murray.  Bell's essential thesis is that race is a construct, but, nevertheless, one we have to pay attention to.  Bell aims "to dismantle racism," but not race, which he believes can be turned into a constructive concept for the good of society as a whole.  Any effort on my part to summarize Bell's approach beyond that point would be inevitably inadequate.  Suffice to say, he works toward his mission with a brilliant combination of observational hilarity, multimedia presentation, and sharing

Outside 'the Z'

about his own life and family.  He does not ask that everyone agree with him on every point, he admonishes.  Rather, he has accomplished enough if people are moved to engage in meaningful dialog about race and social justice, which surely they must be.

The Zeiterion Theatre, or "the Z," is a classic building in old, cobblestoned New Bedford, Massachusetts, opened in 1923 to host vaudeville acts.  Its fortunes have waxed and waned with the history of working-class New Bedford.  The New Bedford Lyceum is a community cultural organization that dates to the city's whaling heyday.  Founded in 1828, Lyceum lectures and events aimed for “the improvement of its members in useful knowledge and the advancement of popular education.”  The Lyceum was disbanded in 1905, but revitalized by New Bedford leaders in 2016.

Bell was a smart choice to fulfill the Lyceum's public-educational mission.  New Bedford has an unusually (for not-Boston, Massachusetts) diverse population in terms of race and economic class, leading inevitably in our trying times to social tension and painfully obvious stratification.  City leaders—such as Councilman Dunn and UMass Law alumna Mali Lim, city coordinator for community education—work mightily to keep the peace, and, moreover, turn tension and diversity into productive community identity.  Bell's lecture at the Z was preceded by four public screenings and discussions in New Bedford and the surrounding area, one at UMass Dartmouth, each reflecting on a theme from Bell's CNN work.

Restless Algerian youth see Bouteflika resign

Algiers, from the Place des Martyrs

In January, I was in and out of sport shops on the main commercial drag, rue Didouche Mouradin, in Algiers, Algeria, when I noticed a group of rough-around-the-edges, Arabic-speaking young men who seemed to be in and out of the same shops.  I mentally upped my "security threat level," watching the guys a little more closely than I was looking at the merch.  At one point, we were all sandwiched in the same small store, to the point that it would be socially awkward not to acknowledge that we'd taken notice of one another.

Turned out we were in and out of the same shops only because we were all looking at the European football kits.  (Always on the lookout for discounted last-season ManC gear.)  Given the opportunity of tight environs, the guys in fact were eager to strike up a conversation and find out who the pale foreigner was.  They confirmed something I had seen repeatedly by that point in my travel in Algeria:  More than their elders, young people's English is good, they are up to speed on global politics, and they want to know why they don't have the same social and economic security and opportunity that they see young people enjoying in Europe, just across the Mediterranean.

A Bouteflika banner flies opposite Le Grande Post.

The fellows were eager to tell me what European football clubs they followed, and what towns they were from and how they lived their lives in Algeria.  They also were eager to tell me about Algerian politics—though hushed their voices when they said that the status quo needs to change, and the older generation's tight grip on leadership needs to give way.  Outside from the city streets, one could look up in any direction to see billboards and banners bearing the smiling face of Algeria's cult-of-personality president since 1999, Abdelaziz Bouteflika.

When I came home and people asked about Algeria, I often said: it's teetering on the point of a major transition—which is going to happen one way or another, peacefully, or by popular uprising—because the young-adult cohort, now irreversibly integrated into the world by our globalized information technology, are not content with stalled development and socioeconomic marginalization.

Downtown Algiers, Le Grande Poste at middle left

Naturally as protestors took to the streets in recent weeks in Algiers, I've been thinking a lot about my fellow football supporters.  I see the flag-waving crowds filling the streets around the Old Post Office and wonder whether the guys are there, sporting their favorite kits behind their green-and-white flags.  Now Bouteflika has stepped down, and the government is effectively back in military hands.  The military has a mixed record, at once supporting popular demands for progressive leadership and having a limited patience with protests in the streets.

I hope my fellows are OK, and Algeria can deliver the opportunity that they deserve.  Maybe one day I'll see them in the stands at Santiago Bernabéu.

Me on the street at the celebration of the Berber new year

S.D. newspaper seeks transparency in federal food subsidies through SCOTUS-bound FOIA suit

Amicus brief in FMI v. Argus Leader

On April 22, the U.S. Supreme Court will hear oral argument in a Freedom Of Information Act (FOIA), 5 U.S.C. § 552 (LII), case concerning the federal open records law exemption for sensitive competitive information.  Textually, the American access-to-information (ATI) statute, para. (b)(4) ("exemption 4"), exempts from disclosure "trade secrets and commercial or financial information obtained from a person [or legal personality] and privileged or confidential."  State ATI laws have comparable provisions, and interpretation of the federal law is sometimes influential on state courts interpreting similar language. 

Plaintiff below, Respondent Argus Leader Media publishes the Argus Leader, the largest-circulation newspaper in South Dakota, based in Sioux Falls, and a member of the USA Today newspaper network.  In investigation of federal food subsidies, the Leader invoked the FOIA to find out how much taxpayer money is paid by the U.S. Department of Agriculture (USDA) to individual food retailers.  The USDA refused on a number of grounds, including exemption 4.  Joining the USDA in resisting disclosure is a trade association of food retailers, Petitioner Food Marketing Institute (FMI).

The Eighth Circuit, per U.S. Circuit Judge Jane L. Kelly, upheld the trial court's ruling in favor of the newspaper.  Argus Leader Media v. USDA, 889 F.3d 914 (8th Cir. 2018).  The court wrote: 

Applying the law to the facts, we find no basis for reversal. The trial evidence showed that the grocery industry is highly competitive, but is already rich with publically-available data that market participants (and prospective market entrants) use to model their competitors' sales. The evidence shows that releasing the contested data is likely to make these statistical models marginally more accurate. But the evidence does not support a finding that this marginal improvement in accuracy is likely to cause substantial competitive harm. The USDA's evidence showed only that more accurate information would allow grocery retailers to make better business decisions.

On appeal (No. 18-481: SCOTUSblog, Oyez), the parties dispute how to interpret exemption 4.  The Eighth Circuit followed the lead of the U.S. Supreme Court to define "confidential" as risking "substantial competitive harm."  Even within that test, lower courts have divided over the requisite degree of certainty to bring the exemption into play, from the reasonable possibility of advantage to a competitor to a near certainty that economic loss will result. FMI would instead prefer that the Court embrace a much broader exemption: what FMI calls the "ordinary meaning" of the word "confidential," that is, simply, exempting from disclosure information that a company has not disclosed.

I signed on in support of Argus Leader Media to an Amicus Brief of FOIA and First Amendment Scholars, organized by the First Amendment Clinic at Cornell Law School, by students under the leadership of faculty including Assistant Director Cortelyou C. Kenney, and for my part via FOIA expert Professor Margaret Kwoka at the University of Denver Sturm College of Law.  The brief asserts:

Petitioner [FMI] argues for sweeping changes to FOIA’s test for disclosure of confidential commercial information under Exemption 4 used by all Courts of Appeals for the past forty-four years, beginning with National Parks in 1974. Acknowledging that FOIA does not define the term “confidential,” the National Parks court held that the statute requires disclosure— notwithstanding a claim that the withheld records are confidential commercial information—absent a showing of either (1) impairment of the government’s ability to obtain necessary information in the future; or, as relevant here, (2) infliction of substantial competitive harm to the information submitter. 498 F.2d 765, 770 (D.C. Cir. 1974). That test has withstood the test of time. Any change should come from Congress, rather than this Court, because of the unusual context of FOIA, and the unusual context of this case.

Saliently, to my mind, the brief demonstrates congressional approval of the "substantial harm" test, and the FOIA ought not be reinterpreted contrary to its laudable aim of transparency.

As I have written recently in another context, the greatest threat around the world today to transparency and accountability might come from the private sector as surely as from the public sector.  There should be no question as to the need to maximize transparency where the two meet.  While FMI lobbies Congress and works through a Food PAC and "political education fund," certainly taxpayers are entitled to know what public subsidies are being delivered to FMI constituents.

Other signatories on the brief are: Ashutosh A. Bhagwat, Martin Luther King, Jr. Professor of Law, University of California, Davis School of Law; Michael C. Dorf, Robert S. Stevens Professor of Law,
Cornell Law School; Heidi Kitrosser, Professor of Law, University of Minnesota Law School; Seth F. Kreimer, Kenneth W. Gemmill Professor, University of Pennsylvania School of Law; Margaret B. Kwoka, Associate Professor with Tenure, University of Denver Sturm College of Law; James O’Reilly, Retired Professor, University of Cincinnati College of Law; and Nelson Tebbe, Professor of Law, Cornell Law School.

UMass Law Review hosts vibrant media law symposium

Today, as advertised, the UMass Law Review hosted a symposium on media law. The program videos are all on Facebook Live.  Check my Twitter feed for hot links to speakers' handles.  Three panels were organized by media "platform," from politics to digital to entertainment, raising issues from the investigative journalism to data breach law to streaming music copyright.  The program concluded with a keynote address by Richard P. Flaggert, a DLA Piper media attorney.  Here are some highlights:

After a thoughtful welcome by UMass Law Dean Eric Mitnick, UMass Law Professor Jeremiah Ho started the program with a discussion of why media matter.  The problem of law and policy, he said, is the gulf between "what matters" and "what excites us," with the media business model tending to cater to the latter.  Professor Ho is a co-adviser of the UMass Law Review.

  

Kicking off the first panel of the day, Rep. Christopher Markey, New Bedford, Mass., attorney, Commonwealth legislator, and UMass Law alumnus, gave the political perspective.  Money has distorted news from being an educational tool to being entertainment, he explained.  People must be media literate to elicit truth from what they see, hear, and read.  Recalling his years as a district attorney, Markey said that attorneys and judges were "better" when a beat reporter was sitting in the courtroom, that journalism "makes government better."  But those beat reporters are no longer there.

Jillian Fennimore provided her perspective from inside the busy office of Massachusetts Attorney General Maura Healey.  A journalism graduate of the University of New Hampshire with many years experience in media, Fennimore explained the challenge of making the work of the state's law office intelligible and meaningful to citizens, whether the subject matter is investigation of the opioid crisis, antitrust enforcement, or protection of a consumer whose vacuum cleaner broke.  AG Healey cares about all of these things because she understands that these are things people care about, Fennimore said.  My Torts II class has been looking at the impact of the Healey opioid investigation on the crisis and litigation nationwide.

Peter Ubertaccio, a dean and political scientist at Stonehill College, gave an academic perspective on news and media law.  Those of us of a certain age remember the local TV news anchors of our youth, he observed.  That is not true for our children.  Journalism today is "atomized," lacking the "rhythm" of television before the information age, even if the internet is "democratiz[ing]."  There is more content available through more conduits than ever before, Ubertaccio explained, yet there is less availability of accurate information.  We are entering a golden age of television entertainment while at the same time entering a dark age of information, he said.  Incidentally, yes, I remember my anchors.  And I was privileged to have worked with Baltimore's great Al Sanders for a short time before he passed away.

A star of the first panel was Dee DeQuattro, UMass Law alumna, staff attorney for Operation Stand Down Rhode Island, and creator of the Boots on the Ground Heroes Memorial.  DeQuattro talked about her experiences in radio and television, most recently as an assignment manager for ABC6 News in Providence, Rhode Island, then her transition to a public relations and later legal capacity for the veterans organization, Operation Stand Down.  DeQuattro went to journalism school to hold power accountable in the tradition of Woodward and Bernstein, she said.  But "news doesn't work that way anymore," as bottom-line focused detracted from serious political reporting.  After covering the Boston Marathon bombing, she went to law school.  She still uses her familiarity with news media, driven by money savings and visual imagery, to manage public affairs in her nonprofit work.

Law Review co-adviser Professor Dwight Duncan moderated the second panel, on digital media.  Professor Andrew Beckerman-Rodau of Suffolk Law School and the Intellectual Property Center opened with a comprehensive overview of data protection, including data breach and Big Data analytics, in American law today.

Attorney Hollie Lussier of Bristol County Savings Bank told the audience about the large role data protection and privacy play in legal practice today, especially in the financial sector.  She warned attorneys to consider insurance liability limits, as $100,000, she said, won't cut it.  She cited a recent case of a "small" data breach that nevertheless generated a $140 million loss.  The breach could have been prevented, she said, with a $10,000 "penetration test."  Making matters more hazardous, she explained, many insurance policies will not cover consequential damages, which make up most of that mega-million loss.

Rhode Island attorney and legislator Stephen Ucci concurred on the importance of data protection to contemporary practice.  He referenced a recent in case in which only 300 records were exposed.  Despite seemingly straightforward facts, the exposure of data has different implications for each data subject, he explained; moreover, breach across state borders implicates the laws of 50 states as well as federal laws, such as the Gramm–Leach–Bliley Act.  The complexity of even a small case is thus multiplied.  Ucci discussed the data breach legislation adopted by Rhode Island in 2015 and plans to beef up education and implementation in the near future.

UMass Law Professor Dustin Marlan moderated the third panel, on the subject of entertainment law.  Attorney and educator Richard Kent Berger started off the afternoon program talking about music copyright.  He explained the significance of the Music Modernization Act of 2018 and related legislation and pending proposals.  Royalties are now owed for digital streaming, and some pre-1972 musical works that had lost copyright protection have had their authors' royalty rights restored.  The law also revamped the approach to orphan works and afford them greater protection against loss of copyright.  Previously large content providers such as Google's YouTube were able to use a notice process on a massive scale to shake potentially orphaned works free of their copyright protection.

Seattle University Law Professor Bryan Adamson, a mass media scholar, talked about the importance of framing in media, especially in news reporting, and especially in coverage of protest movements. Media frames tend to perpetuate social stability, he explained, and as a result, tend to perpetuate racial hegemony.  The portrayals viewers see might not fairly represent the facts, and, as a result, he said, rather than contributing to the public dialog, media narratives might "derail" meaningful discussion of sensitive topics such as race and social and economic equality.

Rhode Island attorney Richard E. Kühn talked about the importance of social media to attorneys.  Social media are part of contemporary legal practice across the board, he explained, touching on areas including lawyer advertising, client counseling, evidentiary investigation and spoliation, and trial practice and voir dire.  He recited recent case rulings demonstrating that failure to take social media into account, for example in evidentiary investigation, may result in a finding of legal malpractice.

DLA Piper attorney Richard P. Flaggert (not speaking on behalf of clients or the firm) gave the keynote address of the symposium, discussing contemporary media law practice.  Flaggert, who is licensed in California, Massachusetts, and England and Wales, started off by reminding that Shakespeare's "kill all the lawyers" lines was an admonition against unethical or incompetent practice, not actually an indictment of the professional.

He then spoke about two key doctrinal developments in media law practice.  First, he discussed the potential impact on free speech and commerce of the newly adopted EU Copyright Directive, in particular the article 11 "link tax" and the article 13 "upload filter measure."  Both threaten a chilling effect, he explained.  The former purports to give copyright protection to even a "snippet"—the actual word, undefined in the law—of content, putting at risk a range of content from Google news aggregation to "your blog."  Meanwhile article 13 imposes the burden of protecting against copyright infringement on ISPs, abandoning reliance on the notice-and-takedown approach of the U.S. Digital Millennium Copyright Act.  As a result, even "your blog" content might be tied up for weeks or longer as ISPs mull over whether you have violated copyright, likely prompting prophylactic censorship.  I note: not unlike Europe's approach to the right to be forgotten, now miring Google in a new administrative bureaucracy, not to mention the risk of Goliath gate-keeping under non-transparent private-sector control.  

Second, Flaggert talked about the problem of copyright and live fan captures of sporting events and the like.  As technology improves and recording devices become harder to detect and control, event providers such as sporting authorities will have a more difficult time policing the difference between the odd fan photo and the HD-streaming pirate.  The French solution has been to regulate, Flaggert explained, giving near absolute control to providers, a strategy of obviously problematic dimension.  Meanwhile in the United States, no body of intellectual property law, such as federal copyright or state common law, seems up to addressing the problem.  Event providers are confounded at the choice between loss of control of their intellectual property and alienation of their fan base with its abiding affection for social media.  Meanwhile the problem poses a threat to our fine-line precedents and the delicate balance between INS v. AP IP rights and the "hot news" doctrine, which has kept the peace for decades.

The village idiot moderated the first panel. Here
he is about to laugh at one of his own bad jokes.

Once a lawyer who represented ESPN before it ceded its design to bring Premier League coverage to America, I asked Flaggert 1:1 whether NBC, with its unsatisfying and impossibly expensive array of cannibalized Premiere League coverage for U.S. viewers, intends to be destroying soccer in America, or is just doing so indifferently.  He shared his frustration with access to Liverpool matches.  I'm not sure why one would necessarily want to see Liverpool, unless they were playing directly against ManC.  But I appreciate his empathy.

A big congratulations to the UMass Law Review, especially editor Casey Shannon, for executing a superb symposium, with my sincere thanks for bringing these talents to our campus.

Terra Nullius: Named for legal doctrine, novel dives deeply into human identity

I'm not easily moved by fiction, so I don't make recommendations lightly.  And you need to read this book.

Terra Nullius by Claire G. Coleman (Amazon) has been a hit in Australia and thankfully was picked up for U.S. circulation by a small, Massachusetts-based publishing house, Small Beer Press.  The book has been shortlisted or nominated for a bunch of prestigious awards and won the Norma K. Hemming for exploration of themes of race in speculative fiction.  The book is a product of the Queensland "black&write!" indigenous writing fellowship.  Coleman identifies with the Noongar people of the southwestern coastal region of Australia.  A poet and writer, this is her debut novel, and she wrote it while exploring indigenous lands in a caravan.

The "speculative fiction" element of Terra Nullius is not immediately obvious in the telling of the story.  I won't spoil it here, and I urge you to avoid spoilers so that you can experience it yourself.  Even so, being married to a librarian, who recommended this book to me, I knew something of the novel's secret.  I was gripped early nonetheless, and the reveal was still richly enchanting.  For a while I had to ponder, why did Coleman tell the story this way?  But I got it, and the author interview in my Small Beer Press edition confirmed: Coleman's narrative delivers empathy for the indigenous experience in a way that I have never before witnessed.

There are countless parallels between Coleman's take on indigenous life and British colonization and the experiences of other marginalized groups, including Africans amid European colonization and First Nations in the United States.  The title, "terra nullius," refers to the Latin term and legal doctrine meaning "nobody's land."  Specifically the term was employed by the British to legally rationalize claim to Australia, as if the continent had been uninhabited.  The term turns up in American law, too, to justify claims to this continent and the displacement of native peoples.  Coleman states that she has not yet been to the United States, but would welcome the chance to compare notes on our reservations.  I would love to witness that conversation.  In ironic coincidence, I read Terra Nullius while exploring the reputed landing sites of Christopher Columbus on the Samaná Peninsula of la República Dominicana.  There are scarcely few more apt places on earth to consume this book.

While the focus might be on the indigenous perspective, this novel, in its sum, speaks even more ambitiously to the whole of our human experience.  It demands that we interrogate who we are as a species; that we ask whether confrontation and violence—might makes right—are intrinsic to our human identity, or a choice that we make, something we can change.  It comes clear that our survival may well depend on the answer.

Dirty talk at SUNY Oswego

I had a profound privilege the week before last to visit and speak at SUNY Oswego.  I am indebted to the Political Science Department and the Pi Sigma Alpha (PSA) chapter there, especially Dr. Helen Knowles and PSA chapter officers Nicholas Stubba and Kristen Igo.  Oswego is a charming town, and the warmth of the people at SUNY more than made up for the lake effect snow.

Pi Sigma Alpha, the political science honor society, inducted a new class of members from among juniors and seniors, based on their coursework and academic achievement.  The students' faculty in the Political Science Department and friends and family joined the ceremony.  I made remarks on the subject of PSA's 1920 founding and similarities and differences in our contemporary political landscape as we approach the organization's 100th anniversary.

The evening after the induction, SUNY Oswego kindly hosted me to present my research on "dirty language" and censorship.  In the talk, titled "WTF? Proliferating Profanity Under a Conservative FCC," I examined indecency doctrine in FCC television and radio regulation, especially in the three most recent presidential administrations.  The talk was held in a beautiful conference room of the Marano Campus Center, with windows overlooking the campus ice hockey rink (above).  Faculty and students from various departments attended, including a journalism student reporter for the campus newspaper, The Oswegonian.

In the course of the visit, I had ample time to meet, and be impressed by, dedicated SUNY Oswego students, who don't let a little lake-effect snow keep them from class.  Here I am with Dr. Knowles and her civil liberties class.  They are lucky to have a seminar led by Dr. Knowles, an expert on various topics in civil rights, especially the jurisprudence of Justice Kennedy and the Lochner-era history of economic due process. She is the author of The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009, updated 2018) and co-editor (with Steven B. Lichtman) of Judging Free Speech: First Amendment Jurisprudence of Supreme Court Justices. She is at work currently on four more books, all under contract: Making Minimum Wage: Elsie Parrish v. The West Coast Hotel Company (U. Okla. Press), Lights, Camera, Execution! Cinematic Portrayals of Capital Punishment (co-authored with Bruce E. Altschuler and Jaclyn Schildkraut, Lexington Books), Free Speech Theory: Understanding the Controversies (co-edited with Brandon T. Metroka, Peter Lang), and The Cascadian Hotel (co-authored with Darlene L. Spargo, Arcadia Publishing).

Particular thanks to Mr. Stubba, who indulged my desire to brave the bitter wind and see Lake Ontario from the shoreline.  Watch how the ice undulates on the waves!