Anguelov talks fast fashion with WBZ

My friend and colleague Professor Nikolay Anguelov spoke recently on WBZ NewsRadio 1030 about fast fashion and learning to shop sustainably.  Here is the debut episode of New England Weekend; cue to 28:00 minutes for the segment.



Nick is author of The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society (2015), as well as From Criminalizing to Decriminalizing Marijuana: The Politics of Social Control (2018).  In 2016, he and I attended the congress of the Union Internationale des Avocats in Toronto, where Nick schooled lawyers from around the world on fast fashion and its legal implications, especially in environmental conservation.

Smart graffiti graces Warren, R.I.

Caught some local art in the Clet Abraham tradition on my late-night homeward commute Monday.

Warren, Rhode Island, on Main Street opposite Child Street.

Oberlin case leaves no doubt, 'racist' accusation is capable of defamatory meaning; Koppel reports

An Ohio jury in June awarded $44m to a family-owned bakery that proved defamation by Oberlin College in a case of false accusations of racism by Oberlin students, supported by the college.  Now CBS Sunday Morning has excellent coverage from Ted Koppel.  How ever did Oberlin, a respected four-year institution of higher education committed to the liberal arts, jump on board with racism accusations without first checking the facts?  Unthinkable.

False accusations of racism or misogyny today are no less capable of defamatory meaning than accusations of child molestation or other crimes that shock the conscience.  There can no longer be any serious contention that such charges are immune from defamation liability because they are fair comment or because they do not necessarily expose a victim to hate, contempt, or ridicule in the community.

Forbes reported: "The jury initially assessed $11 million in compensatory damages and $33 million in punitive damages against Oberlin, for a total of $44 million, but the judge cut back the amount to $25 million because Ohio law has caps on damages. The judge then tacked on $6.5 million in attorney’s fees bringing the verdict back up to $31 million."

The case is Gibson Bros., Inc. v. Oberlin College, No. 17CV193761 (Ct. Common Pleas Lorain County, Ohio, Sept. 18. 2019).  The Ohio trial court publishes only the docket online.  Oberlin appealed (filed Oct. 8, 2019), and the Gibsons cross-appealed (filed Oct. 18, 2019).  CNN has the initial complaint (filed Nov. 17, 2017).

Teachable torts: Samsung satellite crash-lands in 'paradigm of reciprocity'

"Strict liability" in tort law is liability without fault.  That is, more precisely, it is liability without regard for fault.  Lawyers and social scientists have much debated the theoretical foundation and doctrinal justifications for strict liability.  After talking recently with a scholar-colleague in Honduras, I think strict liability may be on the rise in a new class of cases in Latin American environmental law.  Meanwhile, we use strict liability, in the United States, in certain classes of tort cases, such as when the defendant is a seller of a defective product, or the defendant was engaged in an "abnormally dangerous" activity, such as dynamiting.

Professor George Fletcher in 1972 posited one theoretical basis for strict liability as the "paradigm of reciprocity":

The general principle expressed in all of these situations governed by diverse doctrinal standards is that a victim has a right to recover for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant—in short, for injuries resulting from nonreciprocal risks. Cases of liability are those in which the defendant generates a disproportionate, excessive risk of harm, relative to the victim’s risk-creating activity. For example, a pilot or an airplane owner subjects those beneath the path of flight to nonreciprocal risks of harm.

The downed plane is the paradigmatic paradigm exemplar, albeit tragic.  But space news from a Michigan backyard, where no one was hurt, provides this week a happier occasion to consider the professor's proposal.

Teachable torts: Halloween haunted houses strain hallowed American right to make poor choices

As the sun sets in the U.S. East, I was prepared to let Halloween slide by on the blog, even though so many great tort-related items perennially crop up, and an eagle-eyed 1L Jason Jones sent me an excellent story about the super creepy McKamey Manor (YouTube) haunted house in Summertown, Tennessee (Guardian video coverage four years ago).  Then Professor Christine Corcos (of Media Law Prof Blog, via TortsProf List) alerted me to WaPo coverage of McKamey, and Ronny Chieng incorporated McKamey into his Halloween edition of "Everything is Stupid" on The Daily Show (here for the blog, not the classroom).

The "petition" referenced in the news coverage (linked above, top) refers to a Change.org petition, not a legal action.  Yet.  The case would be useful to consider tort claims, such as the infliction of emotional distress, as well as defenses, such as consent and assumption of risk, vitiation on public policy grounds, and the American ethos of personal responsibility.

Thanks to my TA, here's an even better item, funny without the dark angle, bringing a lawyer into the picture: the first two segments of Nathan For You s1e05.

Happy Hallows' Eve.

Arkansas profs champion academic freedom as bipartisan cause

Most recently in June, I wrote about the faculty lawsuit against the University of Arkansas System to protect academic freedom, as the university tries to cut back on tenure protection for both past and future hires.  The case is tracked by Professor Josh Silverstein, at his blog, Jurisophia, where the most recent filing is a September reply brief in support of defendants' motion to dismiss.

I had lost track in my inbox of this short segment (click box below) from Fox News in June, below, in which Arkansas named plaintiffs, my friend and mentor Professor-Attorney Tom Sullivan among them, schooled anchors on how academic freedom and tenure should be a bipartisan cause.



The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. complaint filed May 31, 2019).

I've freshly endured my own reminder at UMass Law of how readily academics turn on each other.  As I nurse the knife wound in my own back, I find myself re-sensitized to how American university administrators today exploit the ruthless faculty penchant for self-preservation to further the faculty's own fall and the rise of bureaucratic hegemony in its place.  Ultimately if indirectly, the most devastating impact of this dynamic is visited on the students who should be the beneficiaries of the educational mission.

Social-science saucebox opines on bike-bridge closures

A reporter stopped me on a run last week to obtain my critical policy analysis of the bridge-replacement situation on the East Bay Bike Path.  Suffice to say, my testimony was breathless.


Watch at NBC 10 Providence.

Everyone's talking First Amendment

So this one was the vision of what happens if things don't go the way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now call the neo liberal left was ignoring workers' needs and was not paying attention to the things that give rise to populism and only the right was paying attention to those needs.

[Rorty] said, 'at that point, something will crack. The non-suburban electorate will decide that the system has failed and start looking around for a strong man to vote for. Someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen and postmodernist professors will no longer be calling the shots.

'One thing that is very likely to happen is that the gains made in the past 40 years by black and brown Americans and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion. All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet.'

—The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,

quoting the speculative fiction of philosopher Richard Rorty in 1997

The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library.  Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal.  Ian Donnis, political reporter for The Public’s Radio, will moderate.

The First Amendment has been much in the news lately, in our strange times.  Two items from my listen-and-read list.  First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.



In part one of three, Marantz challenges First Amendment absolutism.  That's not a big reach, but lays out the context for his discussion.  In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine.  It's familiar territory until he hits Citizens United (about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speech author P.E. Moskowitz.  The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.

The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality.  As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical.  Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.

Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection.  At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement.  Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.

Second, the SMU Law Review published a centennial anniversary symposium issue on the Schenck and Abrams "clear and present danger" cases.  These are the articles:

• The Lessons of 1919 by Lackland H. Bloom, Jr.
• Born in Dissent: Free Speech and Gay Rights by Dale Carpenter
• Inciting, Requesting, Provoking, or Persuading Others to Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence by Larry Alexander
• Speech and Exercise by Private Individuals and Organizations by Kent Greenawalt
• The Clear and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited by Ronald J. Krotoszynski, Jr.
• Dissent in a Crowded Theater by Mari Matsuda
• “And the Truth Shall Make You Free”: Schenck, Abrams, and a Hundred Years of History by Rodney A. Smolla
• Deliberative Democracy, Truth, and Holmesian Social Darwinism by Alexander Tsesis
• Falsity and the First Amendment by G. Edward White
• Originalist Reflections on Constitutional Freedom of Speech by Christopher Wolfe

Sandy Hook father wins $450,000 in Wisconsin defamation case against conspiracy theorists

A Sandy Hook parent won a $450,000 defamation award in Wisconsin last week, when I was out of town.  The case is interesting not only as a collateral installment in the litigation aftermath of the 2012 Sandy Hook school shooting, but as an installment in the legal system's ongoing grappling with misinformation in mass media, so-called "fake news."

Lenny Pozner, father of decedent six-year-old Noah Pozner, won his defamation suit against Sandy Hook deniers James H. Fetzer and Mike Palecek in June, on summary judgment.  A jury trial was had only on the question of damages.  In the complaint, Pozner claimed severe mental distress, besides the requisite reputational harm.  Now This News has more about Pozner's ordeal, beyond the traumatic loss of his son:

The crux of the falsity in the defamation claim was defendants' assertion that Pozner was in possession of and distributing a falsified death certificate.  Attached to the complaint, Noah Pozner's death certificate reports the cause of death, "Multiple Gunshot Wounds."  Lenny Pozner alleged that the defendants' assertion appeared in a 2016 book, edited by Fetzer and Palecek, Nobody Died at Sandy Hook, and on Fetzer's conspiracy-theory blog.  The book publisher earlier settled and agreed to stop selling the book.

Fetzer, who resides in Wisconsin, is, amazingly, a distinguished professor emeritus of philosophy at the University of Minnesota Duluth.  His work included JFK conspiracy research.  Fetzer's university home page bears this disclaimer:

James Fetzer is a UMD Philosophy Professor Emeritus and conspiracy theorist. He retired from UMD in 2006. His theories are his own and are not endorsed by the University of Minnesota Duluth or the University of Minnesota System.  As faculty emeriti, Fetzer's work is protected by the University of Minnesota Regents Policy on Academic Freedom, which protects creative expression and the ability to speak or write on matters of public interest without institutional discipline or restraint. 

The university deserves a lot of credit for respecting academic freedom even in these challenging circumstances.  Fetzer meanwhile has cast the loss in Wisconsin as a book banning and offense to freedom of the press.

Fetzer and Palecek have books for all occasions.  One title, still for sale, is And Nobody Died in Boston Either, referring to the 2013 Boston Marathon bombing.  Three people were killed at the scene in Boston, and more than 200 were injured.

Meanwhile on the Sandy Hook litigation front, the Connecticut litigation against Remington Arms is still pending cert. petition in the U.S. Supreme Court.  Remington seeks to nullify the Connecticut Supreme Court ruling allowing victim-family plaintiffs a thin-reed theory to circumvent federal statutory immunity.  Plaintiffs filed their responsive brief on October 4, and Remington filed a reply on October 18.

[UPDATE, Nov. 13, 2019: The U.S. Supreme Court denied cert. in the Remington case, so it will go back to the trial court in Connecticut.]

Legal comparatists meet in Missouri

Maxeiner

Last week the American Society of Comparative Law (ASCL) met at the University of Missouri Law School.  I was privileged to participate among 120 scholars from 20 countries.

As part of the works-in-progress program at the front end of the conference, I presented the most recent iteration of my work on access to information law, comparing private-sector transparency and accountability measures in South Africa with selected standards in Europe. 

Maxeiner's 2018 book on

"failures" in Amercian
lawmaking

Yoo

I benefited from exchange of critique from a room full of participants, including co-panelists James Maxeiner of the University of Baltimore and Kwanghyuk (David) Yoo of the University of Iowa.  Maxeiner presented a fascinating comparative study of lawmaking in Germany and the United States, showing the inventive ways that lobbying-driven American lawmakers might learn from Germany's variegated means of incubating potential legislation.  Yoo talked about U.S. and European Union court decisions on antitrust challenges to patent settlements in the pharmaceutical industry: when a company settles a lawsuit to keep a patent challenger out of the market, when does dispute resolution cross into anti-competitive misconduct?

The panel was moderated by Missouri’s Mekonnen Ayano, a Harvard doctoral graduate and formerly an Ethiopian judge and World Bank legal counsel.  University of Missouri Dean Lyrissa Lidsky, an accomplished media law scholar, attended and live-tweeted the panel.

[UPDATE: Vainly adding photos with me in them, courtesy of Mizzou Law.]

Prof. Maxeiner and I listen in the lecture hall.

I puzzle over dinner options.

I ramble about ATI in Africa with the generous ear of moderator Prof. Ayano.