Not sure how to keep guns away from the mentally unfit? This cop has a stake and a plan.Plus: Sandy Hook Update

Rob Devine, former deputy police chief of Stoughton,
Massachusetts, and a concerned parent.

Father of two, 19-year police veteran, UMass Law J.D. candidate 2020, and a distinguished survivor of my 1L Torts class, Robert C. Devine has published some practical but scholarly policy advice "to reduce access to firearms by those mentally incapable of handling them or those with current substance addictions."  Here is the abstract:

The United States is in a state of conflict over the ability to obtain firearms as well as their use in highly publicized mass shootings. On December 14, 2012, Adam Lanza obtained several firearms that were lawfully owned by his mother, but were improperly secured. Lanza killed his mother that morning and then drove a short distance to the Sandy Hook Elementary School in Newtown, Connecticut, where he murdered twenty-six people, many of whom were small children. Lanza eventually turned a gun on himself before being confronted by responding officers. Though mass shootings are often headlines in this country, the vast majority of misused firearms by the mentally ill are tragically used in suicide. The lessons of these examples must be used to augment current firearms policy in an effort to reduce the availability of firearms to those suffering with afflictions that make them ill-equipped to have access to them. Though the Commonwealth of Massachusetts asks pointed questions in these areas regarding the fitness of the potential license holder, it collects no data whatsoever regarding other full-time household members where a firearm may be kept, nor what measures the licensee takes to ensure its security.

This Article illustrates a policy, grounded in facilitative principles, designed to reduce access to firearms by those mentally incapable of handling them or those with current substance addictions. Key components to the solution’s success should rely on increased vetting of the licensee’s environment and where lawfully owned firearms will be stored, in combination with assessing the risk factors of having been hospitalized for mental health, drug dependence, or alcohol dependence. This recommendation is merely an expansion of questions already used in the current Massachusetts firearms licensing application and would produce additional factors that a licensing official may consider when determining the suitability of an applicant. It is important to note that this would not be an outright prohibition for a licensee, which would likely be constitutionally impermissible. This Article concludes by reemphasizing the importance of giving licensing officials more information to consider in an effort to lower the risk of lawfully owned firearms ending up in the hands of the mentally ill or violent.

Mr. Devine takes due account of the Second Amendment, but recognizes that we're not doing all we can to implement regulation, even at the margins, that is hardly controversial.  The full article, Recommendations for Improving Firearms Vetting in Massachusetts, is available from the UMass Law Review and published at 14:2 U. Mass. L. Rev. 350 (Spring 2019).

Sandy Hook Update

The Connecticut Law Tribune reported last week that the Connecticut Supreme Court will hear oral arguments on September 26 in the defamation lawsuit against Alex Jones and InfoWars.  The trial court had allowed limited discovery despite the defense's anti-SLAPP motion.  The case is Lafferty v. Jones (Complaint at Scribd).

Meanwhile the Sandy Hook gun manufacturer liability suit against Remington is pending defense cert. petition in the U.S. Supreme Court, since the Connecticut Supreme Court allowed plaintiffs a narrow theory to circumnavigate Remington's federal statutory immunity under the Protection of Lawful Commerce in Arms Act (at The Savory Tort). That case is now Remington Arms Co. v. Soto.

Lewinsky calls for online civility, will speak twice in South Coast Massachusetts this academic year

Goodman as Linda Tripp, Molly Shannon as Lewinsky, in
1998 (SNL). President Clinton's escapades were good business
for SNL, which released a Best Of collection in 1999.

Monica Lewinsky has become a public figure in a whole new light in recent years, leaving behind the scandal that took her name, rather than his, mostly to differentiate scandals.  As Time put it, "Monica Lewinsky" was once the butt of a joke, many jokes.  John Goodman playing Linda Tripp (see WaPo reemergence in 2018) made for instant-classic Saturday Night Live bits (see Tripp's later perspective and a brief recollection with Goodman).

The world has changed, #MeToo, and Lewinsky figures into it differently today.  She has described herself as an original victim of cyber-bullying, before it was a thing.  Aptly, she's become an outspoken advocate against it, and a mite more effective in that capacity than the present First Lady.  Lewinsky broke her relative silence in Vanity Fair in 2014 and subsequently became a VF contributor and Twitter personality.  John Oliver interviewed her on Last Week Tonight in his excellent program on "public shaming" (below) (cf. Jon Ronson's definitive 2016 treatment of the subject in his book, So You've Been Publicly Shamed, featured here on The Savory Tort in 2017).

Apparently Lewinsky's "second act" is only getting going.  Among her many projects, she is contributing to the fall 2020 season of American Crime Story, on FX, The Hill reported, in which Sarah Paulson will play Linda Tripp decidedly more darkly than John Goodman did.  Meanwhile on stage, Lewinsky has become an advocate for online civility.  Building on her 2015 TED talk, The Price of Shame, she's booked into an aggressive public speaking agenda.

I can't help but find Lewinsky to be a compelling figure.  Aside from her curious, mostly involuntary role in American history, she embodies the mass media's power to destroy reputations with the impunity the First Amendment affords.  Yet her story unfolded in the highest of political arenas, the American executive office, in which First Amendment values are most urgently implicated, and First Amendment absolutism is most persuasively justified.  Whatever the merits of the case that shaped her perspective, she shares today a meritorious message: If the internet can be tamed, to do more good than harm, it will be by people and their choices, not by law and regulation.

Lewinsky is slated to speak in South Coast Massachusetts in fall and spring.  On October 17, 2019, Lewinsky will give an endowed lecture at Bridgewater College (more from WHSV).  On May 15, 2020, Lewinsky will speak in the New Bedford (Massachusetts) Lyceum at the Zeiterion Performing Arts Center ("the Z"); tickets are on sale now.

UMass Dartmouth appoints 6 to 'Chancellor Professor,' first awarded high academic rank since 2003

The University of Massachusetts Dartmouth has appointed six faculty to the rank of "Chancellor Professor," effective today.  I'm honored and humbled to be among them.  These are the university's first promotions to chancellor professor since 2003.  The number of persons who may hold the high rank is limited to ten percent of the faculty, campus-wide.  The provost's office reported, "All have demonstrated excellence in the art and practice of teaching, a record of scholarship that contributes to the advancement of knowledge, and have made outstanding contributions to the University or to their profession."  From UMass Dartmouth News, here is something of the accomplishments of my colleagues:

John Buck

Electrical & Computer Engineering

Professor John R. Buck, who has received the prestigious Office of Naval Research Young Investigator award and the National Science Foundation CAREER award, is a Fellow of the Acoustical Society of America, a Fulbright Scholar and a Senior Member of IEEE. His scholarship focuses on underwater acoustics, signal processing, animal bioacoustics and engineering pedagogy. Professor Buck received fifteen research grants from federal agencies. Many of his graduates have continued their research at prestigious universities and national laboratories. Professor Buck’s classes incorporate active and collaborative learning, making the students’ learning the central focus of the classroom. He was UMass Dartmouth’s inaugural winner of the Manning Prize for Excellence in Teaching for outstanding development of curricular materials and innovative assessment of student learning. Professor Buck also received the IEEE Education Society’s Mac Van Valkenburg Award, and the Faculty Federation Leo M. Sullivan Teacher of the Year Award. Professor Buck founded and led several faculty mentoring programs in the Office of Faculty Development, as well as directly mentoring several junior faculty from across the campus.

Qinguo Fan

Bioengineering

Professor Qinguo Fan has made substantial leadership contributions to the College of Engineering overseeing the transformation of Textiles Department into its current form as Bioengineering. As Bioengineering chairperson, he led the development of the new undergraduate major in bioengineering, recruitment and mentoring of new faculty, major renovations to laboratories and formation of an industrial advisory board. Under his strong leadership, the BNG undergraduate program successfully completed its first ABET accreditation in Fall 2016, considered exceptional for a new program doing the ABET accreditation the first time. The Bioengineering department now offers, in addition to the Bioengineering major, a Bioengineering minor, the 4+1 BS/MS program and a Biomedical Engineering concentration. Several Bioengineering graduates have gone on to medical schools, research positions and work at medical device companies. Professor Fan’s research has primarily focused on structural color, blue light cured polymers, and conducting polymers during the last ten years. He is a co-inventor on one U.S. patent. Professor Fan is a member of the American Association of Textile Chemists and Colorists and the International Society for Pharmaceutical Engineering. Professional recognition includes receipt of the Highly Commended Award at the Literati Network Awards for Excellence for one of his research articles.

Sigal Gottlieb

Mathematics

Professor Gottlieb has demonstrated a deep passion for incorporating research into undergraduate education. She has adopted an exploratory, discovery-based approach by using “computing for intuition” as a critical tool to learning, and has worked to engage her undergraduate students in research in computational mathematics. Her advisees have gone to have successful careers at universities and research laboratories. Professor Gottlieb is known internationally as an expert in strong-stability-preserving time discretizations and other schemes for hyperbolic equations. As PI or co-PI, she has been responsible for securing well in excess of $3.5M to support her research. In recognition of her expertise and impact on the field, Professor Gottlieb was recently elected a Fellow of the Society of Industrial and Applied Mathematics (SIAM). Professor Gottlieb’s most significant service has been her leadership of the Center for Scientific Computing and Visualization Research (CSCVR), which she helped form and served as director (2013-2017) and co-director (2017-present). In this capacity she has worked to support, facilitate, and promote the research activities of the scientific computing group and to mentor students and junior faculty of scientific computing in a supportive, broad, and deep interdisciplinary research environment.

Brian Howes

Estuarine & Ocean Sciences

Professor Howes played an integral role in the initial development of the marine science graduate program, an internationally recognized marine science and technology program. He has advised and funded graduate students who have gone on to pursue successful careers. Professor Howes has maintained a high level of scholarly productivity in his field, as well as produced numerous technical reports as part of the Massachusetts Estuaries Program (MEP) requirements. He has raised over $23M in extramural research funding through federal, state and municipal extramural grants and contracts. Professor Howes has also made significant contributions to his profession in the form of scientific advances, as well as practical applications that have had a major impact on coastal ecosystem health and water quality in the region.

 

Yuegang Zuo

Chemistry & Biochemistry

Professor Yuegang Zuo has a record of contributing to active learning and has sustained a record of graduating M.S. and Ph.D. students. He provides high quality mentorship resulting in graduate students winning external awards for their work. He has also worked with undergraduate students, who have won American Chemical Society awards. Professor Zuo has maintained a high level of scholarly publishing and is successful in attracting substantial extramural funding. He has contributed to the University and his profession serving on diverse departmental, college and university committees as well as the Faculty Senate. He has served his profession as a reviewer, editor, and meeting organizer and serves on the editorial board for seven journals and recently became the Editor-in-Chief of the Journal of Endocrinology Research.

It'd Be a Lot Cooler If You Did.Or, Marlan on Psychedelics and Decriminalization

Mary Jane's in Eugene, Oregon, 2017, since closed.  (Rick Obst CC BY 2.0.)

My colleague Dustin Marlan has published Beyond Cannabis: Psychedelic Decriminalization and Social Justice in 23:3 Lewis and Clark Law Review.  Prof. Marlan is a compelling voice in intellectual property scholarship, lately especially, trademark and the right of publicity.  Here he turns his attention to a libertarian priority.  The abstract:

Psychedelics are powerful psychoactive substances which alter consciousness and brain function. Like cannabis, psychedelics have long been considered prohibited Schedule I substances under the Controlled Substances Act of 1970. However, via the powerful psychological experiences they induce, psychedelics are now being shown to be viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, and even to enhance the well-being of healthy individuals. In May 2019, Denver, Colorado became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”) — a potential major shift in the War on Drugs. Ballot initiatives for the decriminalization of psilocybin and similar substances are now reaching voters in other cities and states. What principles might justify this decriminalization — eliminating criminal penalties for, at a minimum, the use and possession — of psilocybin and other psychedelics? This Article provides background on psychedelics and a historic overview of the laws surrounding them. It then considers several potential justifications for decriminalizing psychedelics: (1) medical value; (2) religious freedom; (3) cognitive liberty; and (4) identity politics. Lastly, the Article proposes a reframed justification rooted in principles of social justice.

The article is available on SSRN and from the Lewis & Clark Law Review.  You know, in Oregon.

Dazed and Confused (1993)

Massachusetts Bar honors UMass Law's Francomano, advocate for labor, public education

Francomano center. MassBar eJournal photo.

Attorney Patrick Francomano is a first-class person and excellent teacher, one of the assets that makes UMass Law a best-buy treasure for law students and the Commonwealth.  He's a tremendous public servant—and in the same vein, frequent thorn in the side of those in power through his work in labor and in school supervision.  I'm delighted to see him and the work he represents honored by the Massachusetts Bar.  From UMass Law News and the MassBar eJournal:

"Francomano draws inspiration from John Adams’s efforts to establish Massachusetts as one of the first states to grant a constitutional right to education. He believes that public education and the legal system rest on many of the same tenets, and that 'education and social justice are very difficult to disconnect.' As Francomano explained, 'If you have a well-educated society, that is going to be the foundation of a good republic and democracy.'"

Minhaj: With tort impunity, cruise lines externalize risk, costs to workers, passengers, environment

One of my favorite comedians—saw him perform Homecoming King at intimate Cherry Lane in NYC in 2016—Hasan Minhaj (self-described "second brown John Oliver") has taken on the wide range of problems associated with cruise lines' foreign flagging and legal impunity at sea, threatening the safety and well-being of passengers with legal impacts including virtual immunity from tort liability.  (Patriot Act s4e04.)

Instrumental in this deplorable state of affairs for our part, in U.S. law, is the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301–30308.  On its face the act simply invites maritime wrongful death actions into U.S. courts.  However, the act's "shortcomings" have been documented in legal scholarship for a long time; the devil is in the details, specifically, damages, which are limited by § 30303 to "fair compensation for the pecuniary loss sustained."  Note, "pecuniary," not the familial wrongful death intangibles recoverable in domestic tort law, and maybe zero for, say, an elderly retired person.  Minhaj reports that attempts to amend the law have been torpedoed in Congress.

But DOHSA is just one piece of the big, messy picture of maritime liability, or non-liability, for cruise lines.  Most civil wrongs involving passengers are sexual assaults, which can come under the lax, overwhelmed, or de facto non-existent jurisdiction of the vessel's flag home.  Same for the abusive conditions to which cruise ship workers are subject, from working hours that would never be tolerated on land, on through to the minuscule compensations available for debilitating injury, such as loss of limb.  And all that's to say nothing of the devastating environmental impact of cruise ship polluting and dumping that occurs beyond the reach of regulators.

Minhaj aptly paints the ugly picture of what happens when an industry escapes the norm-setting and deterrence mechanisms of domestic tort law.  As he suggests, the relatively affordable cost of a cruise as a vacation option—and I confess, I've gone, I've loved it, and I'd like to go again—is born disproportionately by an oppressed workforce, injured passengers, and the voiceless marine environment.

Beijing internet court rules against ISP Baidu on posthumous defamation claim under PRC Tort Law

In a Chinese defamation case, the Beijing Internet Court has ruled in favor of the plaintiff and contrary to American tort norms regarding ISP immunity and posthumous defamation.

Sixth Tone reported on the suit "filed by the son of the late playwright, screenwriter, and composer Zhao Zhong" (赵忠).  The suit alleged that an anonymous user of Baidu's Baike, China's answer to Wikipedia, edited Zhao's biographical page to defamatory effect.  The edits by user "charming and beautiful woman" (Qiaonü Jiaren) criticized Zhao as a "thief" and cultural "traitor," and deleted the libretto of the opera Red Coral from his listed oeuvre.  The changes remained on the page for five years, from 2013 to 2018, until Zhao's family noticed and demanded correction.  Baidu reversed the edits.  The son nevertheless complained of negligence in Baidu's failure reasonably to moderate content and consequent reputational injury to the family.

The court ruled against Baidu.  Beijing tort lawyer Qu Zhenhong told Sixth Tone that Baidu's compliance with the defamation notice-and-takedown procedure of PRC Tort Law article 36 did not relieve the internet service provider of liability under article 6 for the defamation's five years in publication.  That approach deviates from the powerful ISP immunity of 47 U.S.C. § 230 in the United States—which has faced slowly mounting criticism both at home and in Europe.

A second deviation from American tort norms arises in the allowance of a defamation action by the family after the death of the person defamed.  Common law jurisdictions including the United States continue generally to observe the historic rule that defamation claims die with their claimants, though states are widely experimenting with the posthumous right of publicity by statute.  Cf. The Savory Tort on Defaming the Dead.

The court made clear that it approves of a family's ancillary defamation claim, not just a decedent's claim that persists after death.  "A negative social assessment of the deceased not only violates the reputation of the deceased, but also affects the overall reputation of the deceased's close relatives as well as personal reputation," People's Court News wrote in summary of the court's decision (Google translation). "Therefore, for any close relative of the deceased, they have the right to request the court to protect the right [of the] deceased, or to pursue the responsibility of infringing on their own reputation based on their close relatives."

By its publisher's description, Red Coral (Hong shan hu) "describes the story of the peoples who lived in the red coral island and fought against the troops of Chiang Kaishek. They cooperated with the Red Army and defeated the enemy with the guidance of the people's Liberation Army."  Red Coral was adapted to film in 1961 (DVD pictured).

Savory Tort home page gets new savory tort(e)

For far too long, we, writer and reader alike, have labored under the over-exposed image of a cheesy tort long forgotten.  No more.


The new cover for this blog comes from the culinary stylings of Dean Misty @PeltzSteele.  I have firsthand, real-time knowledge of the deliciousness of this heirloom tomato tort.

'The Media Method': Pop culture-oriented teaching book hits shelves (discount code for 2019 buyers!)

The Media Method: Teaching Law With Popular Culture has hit the shelf at Carolina Academic Press.  I contributed a chapter on pop-culture audiovisuals in 1L Torts to this rich volume conceived, compiled, and edited by pop-culture-in-law maven Christine A. Corcos, the Richard C. Cadwallader Associate Professor of Law at Louisiana State University.  Authors discussed the project recently at the annual meeting of the Southeastern Association of Law Schools (SEALS).  Here is the publisher's description:

Many law professors now teach courses by using examples from popular culture, but there is no comprehensive overview of ways to integrate non-law materials into the legal curriculum. In this text, more than two dozen law professors from the United States, Canada, and Australia demonstrate how to integrate fiction, poetry, comic books, film, television, music, and other media through the first year curriculum traditionally offered in U.S. law schools as well as a number of advanced courses in many subjects. The heavily illustrated book also includes best practices as well as pedagogical justifications for the use of such methods.

The front-matter online includes the table of contents.  Chapter 10 is my Torts Through the Looking-Glass.  Here is the first paragraph (footnotes omitted).

Students today view the world relative to its representations in digital media.  This digital looking glass, or mirror, of reality incorporates fact and fiction and has itself come to define our popular culture.  Accordingly, today’s students benefit from the examination and analysis of challenging subject matter in the real world relative to its digital imaginings.  Instructors in torts can promote learning by bringing into the classroom popular cultural expressions extracted from the vast audiovisual libraries of the Internet.  These demonstrative exhibits can be used to support problem analysis, to explore policy and theory, to bridge study and practice, and to raise issues in professionalism.  This chapter demonstrates the range of multimedia material available in popular culture today with relevance to torts.  My aim is to encourage instructors to build their own libraries of materials and to enhance student learning by holding up torts to the looking glass.

Use code TEACH19 for 25% off in 2019!

Advice for New Law Students, 2019 Edition

New law students, allow me to refer you to and to recommend my 3Ps for 1Ls (2018).

This morning my pastor preached on Proverbs 15:31-33.  It occurs to me that the teaching, which deals with spiritual maturation, is especially appropriate and extrapolatable to the start of the school year, for us all, teachers and students, of any level, and, to be sure, of any faith.  Here's the NIV:

³¹ Whoever heeds life-giving correction
    will be at home among the wise.

³² Those who disregard discipline despise themselves,
    but the one who heeds correction gains understanding.

³³ Wisdom’s instruction is to fear the Lord,
    and humility comes before honor.

Pastor Kim pointed out that there's a difference between a "wise guy" and a wise person, and the latter takes work.  (Aug. 18.)  Verse 32 is especially intriguing: "[O]ne who heeds correction gains understanding."  

The words for "discipline" and "correction" in verse 32 vary with translations.  But I think it's fair to say (not being a scholar of these things) that the Hebrew words put a little more rebuke and reproof into the former and a little more instruction and rectification into the latter.

As is often the case with Proverbs, this is good advice that goes beyond faith and has application in commonsense life.  In our academic pursuits, we should always be open to correction.  Pastor Kim laid out correction, even rebuke, as sine qua non of learning and growing.

Pastor Kim also pointed to the word "humility" in verse 33.  The antithesis of pride, humility renders us susceptible of correction, and therefore ready to grow in knowledge, intellect, and wisdom.

Happy new academic year!  Be humble and get wise.