'Breakaway state' of Transnistria might model new Russian sphere of influence

Transnistria (Perconte CC BY-SA 2.0)

Vladimir Putin is known for multi-tasking foreign policy; that is, he manages bilateral relationships with specifically fitted policy solutions and doesn't lose sleep over inconsistency across the board.  At the same time, his variable approaches add up to a coherent strategy, which is essentially the restoration of Russia to its superpower legacy, if not the reconstruction of a loose union akin to the old USSR.

Last week I got a close-up look at what might be a model of Russian territorial expansion in the 21st century, the semi-autonomous state of Transnistria.  To the United Nations, Transnistria is part of Moldova, the eastern European nation that declared its independence from the Soviet Union in 1991.  But going to Transnistria requires a passport, and the border crossing is no joke.

Transnistria occupies a 1,600-square mile strip of land east of the Dniester River from Moldova and along the border with Ukraine, not far from Odessa.  In 1992, only months after the end of the Moldovan Soviet Socialist Republic, Transnistria fought a war with Moldova for close to four months.  Prominent monuments to the fallen can be found on both sides of the border today, in Chișinău and Tiraspol. An uneasy truce resulted in which Transnistria regards itself as an independent nation, and it operates with near autonomy within Moldova's internationally recognized borders.

Sign at Border Crossing (CC BY-SA 4.0)

On the way in and out of Transnistria, one passes Russian military checkpoints that duplicate the Transnistrian military presence at the border crossings.  For years after the 1992 war, this was a hard border, not easy even for Moldovans to cross, and out of the question for foreigners.  Tensions eased over the years, and the border yielded some, but it's still restrictive.  My visa, issued at the border, allowed a visit for only a matter of hours.  I could have managed an overnight, but I would have needed to provide details about my stay and intentions.

Near autonomy does not fully describe Transnistria's situation, because the breakaway state depends on Russia for unofficial political recognition and essential economic support.  Economic aid keeps prices shockingly low in the markets.  A big part of border security is interdiction of smuggling, especially for precious taxable commodities such as liquor.

Sheriff FC Billboard
(CC BY-SA 4.0, no claim to underlying work)

Within Transnistria, Russian-style oligarchic control of key market sectors is evident, even amid modest economic liberalization.  The company "Sheriff" (Шериф) is ubiquitous, its name splashed across supermarkets, petrol stations, and the well funded Tiraspol soccer club and athletic facilities.  Sheriff has close ties to the Transnistrian and Russian governments.  Antitrust law is not a thing.  Transnistria has its own currency, and even Moldovan lei must be changed to make a purchase.  Market control and currency help to buttress Transnistrian independence, even while the cost of small-run currency is now seeing low-value coins replaced by plastic chits.

A Sheriff Supermarket (CC BY-SA 4.0)

Reinforced politically and economically, Transnistria's social allegiance to Russia remains strong, a near nostalgia for the USSR.  Soviet monuments, including the obligatory Lenins, abound, and Russian language is pervasive.  A guide told me that Transnistrians are given Russian passports.  That's a subtly important strategic maneuver on Russia's part.  When Transnistrian youth look for economic opportunity, the passport puts Russian higher education and jobs within easier reach than the West.  And if Transnistrian independence is ever threatened (or if Russia itches for expansion?), Russia can claim its interest on behalf of Russian citizens in the territory.  From cultural affinity to political identity, these are the very interests that Russia asserted in the invasion of Crimea.

And those ties to Russia help, I think, to illustrate Putin's strategy for a new kind of Russian union.  The Crimean peninsula essentially is Russia, Putin has argued, a minority Russian population being marginalized by a Ukrainian majority.  Russia is still fighting to extend this Crimean buffer zone into mainland Ukraine.  Move just a bit counterclockwise around the Black Sea coast and one comes to the prized port of Odessa, then shortly to the Dniester River mouth, leading to Transnistria.

Me and Lenin in Tiraspol (CC BY-SA 4.0)

Russia does not actually have to possess this territory to control it.  In fact, possession might incur unwanted responsibility.  Better that this Black Sea perimeter region looks to Russia for economic and political legitimacy and for cultural primacy.  The new USSR is not an integrated, hard-bordered political bloc, but a gravitational sphere of cultural influence.  After all, that was the very model of Western social organization that defeated the Soviet Union in the Cold War.  Students and scholars from around the world looked to western Europe and the United States for intellectual leadership, and the West dominated popular culture.  The global balance of power will shift eastward if Moscow becomes a capital of letters.

For now, the hearts and minds of Transnistria are not yet committed.  Notwithstanding ubiquitous Cyrillic script and an unexpected Russian military presence this far west of Sochi, people in Transnistria, like in Moldova or anywhere else, just want security and opportunity.  The subsidized subsistence of Transnistria is a Potemkin Village—a curiously appropriate term, as related in origin to Russia's historic annexation of Crimea—not a thriving economy.

However, reinvigorated American isolationism and stalled European expansion eastward can't presently compete with what Putin has on offer.  Transnistria now looks like an idiosyncratic outlier among European neighbors.  One day Transnistria might prove to have been a bellwether.

To visit Transnistria or explore elsewhere in Moldova, I recommend Voyages Moldavie.  The website is in French, but contact guide Andrian Gurdis for English-speaking tourism, too.  For long-haul taxi services in Moldova, turn to Corneliu Scurtu and his business, Carpoint (Facebook). Read more about Transnistria at Wired (2016), The Bohemian Blog (2013), and The Wall Street Journal (2011).  There's a deeper dive, which I've not read (pay wall), into the Crimea comparison in Adrian Rogstad, The Next Crimea?, 65:1 Problems of Post-Communism 49-64 (2018).

Area man signposts 'sovereign immunity site'

Attorney Dan Greenberg, friend of the blog and a federal policy adviser in Washington, D.C., contributes this photo from his home neighborhood of Alexandria, Va.

The sign reads:

City of Alexandria

Sovereign Immunity Site

 Did you know ...

     The City of Alexandria claims "sovereign immunity" from liability for damage its trash collection truck did to this fence.

     That's right.  On May 22, 2019 a city truck hit and broke this fence.  It's on video!  But none of that matters.  They're immune from liability.

What is sovereign immunity?

     Simply put, the term sovereign immunity is derived from British common law doctrine based on the idea that the King could do no wrong.

     So be careful around City of Alexandria vehicles.  They can do no wrong.

The underlying dispute was reported by Fox 5 D.C. in October.  A trash truck caused $5,000 in damage to Denis Goris's 30-year-old iron fence.



Sovereign immunity turns up often in a society in which government is pervasive in our lives and surroundings, and that's bound to cause frustration.  The sign-bearer is right that the essence of immunity is inequitable, as between the plaintiff who suffers an injury and the defendant sovereign who caused it.  The Federal Tort Claims Act waives federal sovereign immunity in a narrow class of cases, and states can be less generous with their tort claims acts.  The broader aim that keeps immunity going in a democracy is the protection of public assets, which belong to all of us.

It looks like Alexandria does use city staff for trash collection.  Contractors throw a wrinkle into the mix (federal, state).  I am not a Virginia lawyer; what I know of the state's tort claims act, it treats counties and cities much more generously than state-level actors.  The localities enjoy near absolute sovereign immunity for governmental functions, and, almost 50 years ago, the Virginia Supreme Court held that municipal trash collection is a governmental function entitled to immunity.  Alexandria does have an administrative claim process, and there's some room to argue.

The city told Fox 5: "Under federal and state laws and court rulings, the City is generally not liable for damages caused in the course of providing core government services. While the City conducts extensive planning and training to avoid damaging property, some damage does occur given the vast scope of City operations. Exemption from these claims saves a significant amount of money every year for taxpayers as a whole."

In a story last year, NBC 4 Washington reported: "Alexandria Won't Pay $4,600 in Damages to SUV Caused by City Trash Truck."  The city is as consistent with its tort claims as it is with its driving record.

[SUPPLEMENT: "Why is this still a thing?," Planet Money asks about state sovereign immunity in the context of excellent coverage of the copyright case pending in the U.S. Supreme Court, Allen v. Cooper.]

Expert on Polish judicial crisis speaks to law class

Prof. Wortham

Professor Leah Wortham joined Dean Peltz-Steele and my Comparative Law class on Wednesday to discuss the crisis of judicial independence in Poland (latest).  Professor Emerita of the Columbus School of Law at the Catholic University of America (CUA), Wortham is a recipient of, among other honors, the Plus ratio quam medal of Jagiellonian University (JU) in Krakow.

With JU Professor Fryderyk Zoll, Professor Wortham authored Judicial Independence and Accountability: Withstanding Political Stress, recently published at 42 Fordham International Law Journal 875 (2019).  Here is the abstract.

For democracy and the rule of law to function and flourish, important actors in the justice system need sufficient independence from politicians in power to act under rule of law rather than political pressure. The court system must offer a place where government action can be reviewed, challenged, and, when necessary, limited to protect constitutional and legal bounds, safeguard internationally-recognized human rights, and prevent departures from a fair and impartial system of law enforcement and dispute resolution. Courts also should offer a place where government officials can be held accountable. People within and outside a country need faith that court decisions will be made fairly and under law. Because the Council of Europe’s Group of States against Corruption (“GRECO”) deems judicial independence critical to fighting corruption, GRECO makes a detailed analysis of their members’ judicial system part of their member review process. This Article is a case study of the performance of Poland’s mechanisms for judicial independence and accountability since 2015, a time of extreme political stress in that country. Readers will see parallels to comparable historical and current events around the world.

In discussion with the class, Professor Wortham remarked on parallels between the Polish judicial crisis and threats to the legitimacy of the courts in the United States.  She referenced recent remarks by U.S. District Judge Paul Friedman to the American Law Institute, in which Judge Friedman distinguished denigration and personal attacks on the judiciary from disagreement with judicial decisions accompanied by respect for a co-equal branch of government (ALI, CNN).  The class discussion about Poland also treated the recent decision of the Irish Supreme Court to order extradition of a Polish man wanted for drug trafficking offenses, despite concerns about judicial independence in Poland (Irish Times).

CUA offers summer study abroad opportunities for U.S. law students and, in cooperation with JU, an LL.M. program in Comparative and International Law.

Teaching and learning speech and advocacy: Is online as good?

The National Communication Association met in downtown Baltimore, Md.
(All photos by RJ Peltz-Steele CC BY-SA 4.0.)

UMass Law offers oral advocacy online. I was on the curriculum committee that approved a colleague's proposal for the offering. I was surprised. Oral skills online? Is nothing sacred?

I've used Zoom quite a bit: for class guests and snow make-ups. I took the university training to teach online courses in toto; I was uninspired by the shaky infrastructure and unproved methods, especially relative to the worthy rigors of legal education. At the same time, I like teaching the occasional online one-off, and online might work well for a seminar. The early miseries of teleconferencing (still the norm in the ABA) feel nothing like the real-time interactive experience offered by contemporary tools.

Anyway, I would not vote against a colleague’s well intentioned proposal. That would be unprofessional.

Well, when you don’t know, ask an expert. At the National Communication Association annual meeting in Baltimore on Saturday, experts in public speaking debated whether the communication discipline’s most popular basic course, Public Speaking, should be taught online.

Keohane and Broeckelman-Post

In the yes camp were Melissa Broeckelman-Post, George Mason University, and Jennifer A. Keohane, University of Baltimore. They structured their argument on three points: (1) we must teach for the 21st century; (2) public speaking can be taught online effectively; and (3) online classwork enhances access to higher education.

On the first score, they cited research showing that in 2018, the number of online first job interviews doubled, and more than half of professionals telecommute at least half the week. Hillary Clinton was the first candidate to announce for the Presidency online. And globalization is pushing demand for long-distance teamwork, having to surmount communication hurdles from the technical to the cultural.

Huddy and Morreale

On the second score, Broeckelman-Post and Keohane argued that speaking competencies can be achieved through online learning, as measured in student reports of positive experience, diminished anxiety, and increased confidence. The no side referenced research showing contrary results on anxiety and confidence. On rebuttal, the yes side said that the most recent research shows at least equal efficacy by these measures, and maybe somewhat better anxiety reduction with online.

On the third score, Broeckelman-Post and Keohane argued that educators' responsibility to ensure access to education demands online teaching. They cited research counting 74% of college students as “nontraditional,” including military, parents, disabled persons, commuters, and others who are financially independent. Also, dual enrollment in college coursework is on the rise, including more than 1.2 million high schoolers.

In the no camp—though in truth, this was in large measure devil’s advocacy—were Sherwyn P. Morreale, University of Colorado, Colorado Springs, and William P. Huddy, Metropolitan State University of Denver. They appealed more to qualitative than quantitative sources.

Morreale

Morreale cited three components of student communication competence (Spitzberg 2000), motivation, knowledge, and skills. Motivation is fueled by anxiety diminution and confidence enhancement, which (at least earlier) research showed were better achieved in the live company of a supportive community and instructor. Higher order learning is accomplished through discussion and reflection, which Morreale argued are accomplished more readily in the live presence of an instructor. And as to skills, Morreale posited that conventional public speaking skills are adaptable to online communication, but not necessarily vice versa. In later discussion, Morreale conceded that the no side made an apt point on the value of students’ acquisition of tech skills, such as speaking into a mic and looking into a camera, if besides conventional skills.

Morreale pointed also to the six core components of instructional communication competence (Beebe & Mottet 2009), immediacy, affinity-seeking, relational power, credibility, clarity and humor. Live communication epitomizes immediacy and better allows a speaker to exercise relational power, she argued. Credibility and clarity are achieved best without the intermediation of mics and speakers, and humor is more readily generated in person.

Huddy

Huddy made a compelling personal appeal. His work history includes ten years as a television anchor, and he described his process of video-recording and watching himself to study and enhance his communication looking into a camera lens—thereby to manage the camera’s limitations, becoming accustomed to missing what can only be achieved in person. “Eye contact is not just gestural or theatrical,” he said. “It’s my number one opportunity to see if what I am saying is getting across to you. There’s a young lady in the back there that is kind of smiling,” he observed, telling him that what he was saying was resonating with her.

Huddy described the cruciality of de-centering in public speaking (I missed the attribution), meaning putting yourself mentally in your audience's thinking, and evolving on the fly the main points that the audience wants to hear. Learning to do that with live visual cues has no equal of experience, he argued. Effective public speaking requires richness, authenticity, and warmth, he explained, and warmth only communicates in person. An audience member in the Q&A offered some pushback, observing that she experiences a kind of warmth with students online incidentally by seeing them in their home contexts—with nagging siblings, dogs, and other home pandemonium unfolding on screens' edges.

Thorpe, Keohane, Morreale, Huddy, and Broeckelman-Post

The audience voted in the end for who won the debate and, separately, whether to offer public speaking online. Yes took both honors, which probably says a lot about the future of higher education, communication and other fields. In truth, as indicated above, Morreale and Huddy took the hard no position for sake of debate and critical analysis. Morreale in fact eagerly teaches public speaking online. All agreed that the key is not whether to teach online, but how to do it well. I imagine that should be our take-away for legal education, too.

The session was moderated by Janice Thorpe, University of Colorado, Colorado Springs. Susan Ward, Delaware County Community College, offered insightful responsive commentary.

It's not just whistleblower law; First Amendment public employee-speech doctrine is in disarray

You might have heard some wrangling in the news about whistleblowers.  They're all the rage, lately, even here and there on this blog.

A big problem for whistleblowers in the public sector is that the U.S. Supreme Court has clearly held that there is no First Amendment protection for whistleblowing in the United States.  So public employees who blow the whistle on public misfeasance or malfeasance have to be prepared to pay for their good intentions with their livelihoods.

Notably, that was the Court's holding in 2006, when a lawyer, Richard Ceballos, suffered retaliation in the office of L.A. District Attorney Gil Garcetti for having disclosed to criminal-defense counsel that a sheriff misrepresented facts in a search warrant affidavit, despite having been admonished to remain silent.  Remember that when Gil Garcetti runs for President.  Even when there is statutory protection, as in the case of that federal whistleblower whom everyone's been talking about, it is extremely difficult to police prohibitions on retaliation, thus the whistleblower's present penchant for anonymity. 

In a recent opinion column in The Hill, Independent Institute Policy Fellow Ronald L. Trowbridge, Ph.D., bemoaned this sorry state of constitutional whistleblower law since Garcetti.

Right.

Well, welcome to the table, Dr. Trowbridge.  Some of us transparency-and-accountability types in the public sector have been living, working, and biting our tongues under Garcetti for more than a dozen years. 

I don't concede that Garcetti applies to me; a footnote in the opinion left the question open as a matter of constitutional law for academics, who sit in a weird place, constitutionally speaking.  I've dared to offer my own constructive criticism here and there.  But often, I stay silent.  And by often, I mean a lot.  For example, you want to know what goes on at a public school inside the ABA accreditation process?  Well wouldn't you, then.  How nice for you.  Talk to the hand.

What we need is not another op-ed bemoaning Garcetti.  We need a way forward.

In 2016, Jerud Butler was reprimanded and demoted in his job at the San Miguel County, Colorado, Road and Bridge Department after he testified truthfully at a child custody hearing involving his sister-in-law and her ex-husband, another employee at the San Miguel County Road and Bridge Department.  His testimony, in a personal capacity, incidentally touched on the hours of operation of the department.  The Tenth Circuit rejected Butler's bid for First Amendment protection, finding Butler an employee of the government, like an employee anywhere else, subject to the whimsy of the employer.

Butler was not a whistleblower.  But Garcetti was not a watershed moment.  Rather, Garcetti was a symptom of an employee-speech doctrine in First Amendment law that has been badly broken since it was invented in Pickering v. Board of Education in 1968.

On behalf of "First Amendment Scholars," including me, Professors Lisa Hoppenjans and Gregory P. Magarian and their student team at the Washington University First Amendment Clinic at St. Louis University Law School filed an amicus brief in support of U.S. Supreme Court cert. in Butler (No. 18-1012).  Butler has got to be a mistaken outcome, even if we think that whistleblowing should be a statutory matter rather than a constitutional right, even under Pickering.

Like Dr. Trowbridge, I hope the Supreme Court at some point will realize the work that needs to be done to make sensible public-employee speech doctrine, whether fixing what we've got or starting from scratch.

Meanwhile I'll take anything that chips away at Garcetti.

Scholar-amici on the Wash. U. brief in Butler included: RonNell Andersen Jones, Associate Dean of Research & Teitelbaum Chair of Law, University of Utah S.J. Quinney College of Law; Cynthia Boyer, Associate Professor, Institut Maurice Hauriou (Université Toulouse Capitole)/Institut National
Universitaire Champollion; Alan K. Chen, Professor of Law, University of Denver Sturm College
of Law; Eric B. Easton, Professor of Law Emeritus, University of Baltimore School of Law; Craig B. Futterman, Clinical Professor of Law, University of Chicago Law School; Heidi Kitrosser, Robins Kaplan Professor of Law, University of Minnesota Law School; Lyrissa Lidsky, Dean and Judge C.A. Leedy Professor of Law, University of Missouri School of Law; Gregory P. Magarian, Thomas and Karole Green Professor of Law, Washington University in St. Louis School of Law; Helen Norton, Rothgerber Chair in Constitutional Law, University of Colorado School of Law; Richard J. Peltz-Steele, Chancellor Professor, University of Massachusetts Law School; Tamara R. Piety, Professor of
Law, University of Tulsa College of Law.

Amici aligned with First Amendment Scholars in Butler included the National Whistleblower Center, the Center for Constitutional Jurisprudence, the Duke Law School First Amendment Clinic, and the Government Accountability Project.

Dublin City's Brexit Institute tracks all things Brexit

If you're like me, Brexit is a lot to keep up with.  How do you find out the latest developments, when all of your news channels are around-the-clock impeachment hearings?  It's quite the chore for the responsible global citizen.

Let the Brexit Institute alleviate your anxiety.  Since 2016, the good people at Dublin City University have been tracking all things Brexit.  You can follow the institute through its excellent blog, newsletter, or Twitter feed.  IAMCRers will remember DCU from our excellent 2013 conference.

Unrelated to the institute, but while on the subject of Brexit, a shout out to one of my favorite Twitter feeds, The Irish Border, which earned mention in The Guardian last year.

Earlier this week, my Comparative Law class was privileged to host via Zoom a guest from the Brexit Institute, post-doc Professor Giovanni Zaccaroni.  Extra thanks that he stayed up late to join us from GMT.  Prof. Zaccaroni walked us through an intense short course on EU treaty exit article 50, the U.K. Supreme Court decision voiding prorogation, and the proposed Irish border protocol.


Prof. Zaccaroni answered students' questions on those issues and more, explaining the cultural, political, and historical sensitivity around the Irish border question, as well as the relationship between Brexit and potential eastward growth of the European Union—spoiler alert: don't hold your breath, for many reasons, Brexit besides.

Litigation privilege doesn't protect whistleblower counsel, court holds in defamation suit against attorney

The Massachusetts Appeals Court Wednesday affirmed the absolute litigation privilege as a defense to defamation, but rejected its application to a lawyer purporting to represent a whistleblower.

The case arose from a development dispute.  The essence of the alleged defamation concerned a letter from attorney-defendant Edmands accusing defamation plaintiff Patriot of tax fraud and retaliation against the attorney's client for his whistleblowing to the IRS and SEC.  Patriot alleged that Edmands moreover widely republished the accusations on internet platforms, including a whistleblower blog.  The court accepted Patriot's contention that the accusations against it were false.

The litigation privilege is an absolute privilege, so cannot be vitiated by a speaker's common law malice (ill will) or actual malice (knowledge of falsity or reckless disregard of truth or falsity).  The litigation protects an attorney acting as an attorney, even before litigation is initiated, but does not protect attorneys "'in counselling and assisting their clients in business matters generally,'" the court quoted precedent.

Edmands failed to establish the basis for the privilege as an evidentiary matter.  No whistleblowing complaints were filed with federal regulators, and the purported client denied representation by Edmands to that end.

Even had whistleblowing occurred, the court was skeptical that the litigation privilege would attach, given that whistleblowing does not necessarily precipitate any administrative or judicial process.  That point is important for attorneys representing whistleblowers.  Attorneys who help client-whistleblowers amplify their accusations in mass media, in even the most up-and-up of circumstances, might expect to find themselves targeted by retaliatory corporate ire.  The attorney should therefore take extra care to interrogate the truth of the whistleblower's claims.

The court remanded to the Superior Court for further proceedings. The case is The Patriot Group, LLC v. Edmands, No. 17-P-1397 (Mass. App. Ct. Nov. 13, 2019).  Blake, Wendlandt,and McDonough, JJ., were on the unanimous panel, Justice McDonough writing.

Researcher recounts riveting history of Auschwitz infiltrator

Pilecki before 1939

Witold Pilecki was an officer of the Polish underground in 1940 when he allowed himself to be captured by the Nazis in a civilian roundup and sent to Auschwitz.  The underground sought to document German atrocities in the concentration camps with the aim of spurring the Allies to action.

Assuming a false identity using found papers, Pilecki passed himself off as "Tomasz Serafiński," the commanding officer of the Nowy Wiśnicz region unit of the underground Polish Home Army (Armia Krajowa, or AK).  He remained in Auschwitz for nearly there years and wrote reports for the underground that were smuggled to London and Washington.

At Easter in 1943, Pilecki and compatriots made a daring escape from Auschwitz.  Hunted by the Gestapo, they made their way through the Polish countryside and ultimately found refuge with the real Tomasz Serafiński, his wife, Ludmiła, their children, and their underground network.  Amid their run, the escapees had become suspected by the underground of being German spies.  As he grew close to his unexpected namesake, Serafiński found himself at odds with the AK, ultimately depending on Ludmiła to protect both men against underground suspicion and Nazi hunters.  Pilecki and Serafiński each had a grim fate yet in store.

Pilecki at Auschwitz

This riveting WWII story is the subject of a working research paper, replete with documentary images, authored by Elizabeth M. Zechenter, Ph.D., J.D.: Was it Really a Blind Fate? Interwoven Lives of Witold Pilecki and Tomasz Serafiński, and the Daring Efforts of Ludmiła Serafińska to Save Them Both.   The paper was featured in this month's (Oct. 2019, no. 20) Quo Vadis, the Philadelphia Chapter newsletter of The Kosciuszko Foundation.  The foundation is a New York-city based non-governmental organization dedicated to cultural and educational exchange between the United States and Poland.

Zechenter

By day an assistant general counsel for GlaxoSmithKline, LLP, Zechenter is an accomplished academic researcher (Academia.edu, ResearchGate), her UCLA Ph.D. in evolutionary archaeology, who has taught international law and human rights law at Georgetown University Law Center.  She also is president of the Jagiellonian Law Society (JLS), "a voluntary legal association comprised of a diverse group of professionals (lawyers, judges, law faculty, and law students) who are interested in, or have roots in Polish and Central/Eastern European (CEE) cultures."  She is related to the Serafińskis. 

I was privileged to learn about Elizabeth's work through membership in JLS ("open to any legal professional who shares [JLS] interests and goals") and my work in the Catholic University of America, Columbus School of Law, American Law and LL.M. program with Jagiellonian University (not associated with JLS) in Kraków, Poland, and Washington, D.C.

Anti-SLAPP is not all it's cracked up to be

John Oliver this week on Last Week revisited the defamation lawsuit he drew against HBO from Bob Murray and Murray Energy.  The piece brings viewers up to speed on the feud.

Murray just dropped the suit, which was on appeal of dismissal to the West Virginia Supreme Court.  That led Oliver to do this effective segment on the problem of strategic lawsuits against public participation (SLAPPs).  Oliver called on the 20 states without anti-SLAPP statutes to adopt them, lest nationwide speakers remain subject to lawsuit in lowest-common-denominator, plaintiff-friendly locales.

I'm a big John Oliver fan—next-level, best standup I've ever seen, not to mention having redefined social commentary through comedy—and a free speech and journalism advocate.  That said, I am on record in opposition to anti-SLAPP laws, and I remain so.  The laws are an ill fit to resolve the underlying problem of excessive transaction costs in litigation and work an unfairness against legitimate causes of action.  Our First Amendment law radically weights defamation tort law against plaintiffs like nowhere else in the world, admittedly prophylactically dismissing claims by genuinely injured plaintiffs.  Defendants don't need another weapon in their arsenal.

Oliver is right that there are plenty of cases in which litigation is abused in an effort to suppress free speech.  But anti-SLAPP laws sweep within their ambit nearly every defamation and privacy case.  Defamation plaintiffs who have been genuinely injured and have no SLAPP motivation whatsoever also must respond to anti-SLAPP motions and are likely to suffer dismissal and pain of attorneys' fees—not because their suits lack merits, but because they lack access to discovery to get their hands on real, existing evidence of malice, discovery that our civil litigation system routinely affords to tort plaintiffs in the interests of justice.

The essential concept of anti-SLAPP law is said to have originated in Colorado as a means to protect environmentalists from retaliatory litigation by developers.  If you want to see evidence of my doubts about the efficacy of anti-SLAPP legislation, look no farther than a decision by the Supreme Judicial Court of Massachusetts just today, in which, literally, a property developer is the anti-SLAPP claimant in an epic litigation that has generated enormous transaction costs over anti-SLAPP procedure without ever reaching the merits of the case.

Anti-SLAPP laws look good on paper.  But they indiscriminately undermine tort law.  The effect of denying compensation to genuinely injured plaintiffs will be the effect of a failed tort system: unfairness, increased abuse by bad actors, and, ultimately, injured persons taking the law into their own hands.  Media advocates wonder why Generation Z, et seq., are hostile toward free speech.  Be careful what you wish for.

For Veterans Day, let's push through Congress bipartisan Feres doctrine waiver for medmal claims

Veterans Day Painting.  (Details at end of story.)

The Federal Tort Claims Act (FTCA) authorizes tort actions against the U.S. federal government, waiving the government's sovereign immunity in its courts, subject to tight constraints.  The FTCA yields to the Feres doctrine, a rule of law named for the Supreme Court case that recognized it in the years following World War II.  The Feres doctrine disallows lawsuits by active-duty military for personal injury or death.  The Feres doctrine makes sense on the face of it, lest every injury in combat become a tort claim under the laws of the states. 

But the Feres doctrine's logic breaks down at the margins.  Increasingly in recent decades, healthcare has become big business and very expensive.  Military personnel have become dependent on the government for routine care.  And cases have been reported of medical malpractice at government hospitals: cases that unquestionably would yield medical malpractice claims in the comparable civilian context.  Insofar as the Feres doctrine is supported by a sort of "assumption of risk" by soldiers who go off to war, that theory feels ill fit to stateside medical mistakes in childbirth or prenatal care, or failure to diagnose terminal conditions. 

In spring 2019, the U.S. Supreme Court denied cert. in a challenge to this operation of the Feres doctrine (case at SCOTUSblog; details at and Stripes).  CBS Morning reported in August on the story of Sfc. Richard Stayskal, a Green Beret, now terminally ill, whose cancer was misdiagnosed, and on his emotional congressional testimony.

Bills (S.2451, H.R.2422) (not the first of their kind) that would authorize medmal tort claims for military personnel are stalled in House and Senate committees.  Fox46 Charlotte recently called out Sen. Lindsey Graham as an obstacle in the Senate for the bipartisan Sfc. Richard Stayskal Military Medical Accountability Act of 2019.  I hope Veterans Day might occasion placement of this fix on the short list of what Congress should be doing besides playing politics for the cameras this week.

(Image: Caroline Beattie, a senior at Manatee School for the Arts in Palmetto, Fla., painted a portrait of her Economics and Government teacher, for the school's Veterans Day program. Her teacher, Maj. Jennifer Pearson with the Air Force Reserve’s 920th Rescue Wing at Patrick Air Force Base, Fla., photographed the painting Nov. 6, 2019.  U.S. Air Force photo by Maj. Jennifer Pearson.)