'Seduction' on Rue Torte, Île de Gorée, Senegal

Rue Torte, Île de Gorée, Senegal (CC BY-SA 4.0 RJ Peltz-Steele)

Happy Valentine's Day! Time magazine on the seduction tort, for the occasion, adapted by and from Clement Knox, Seduction (2020).

Northwestern Law celebrates Professor Marshall Shapo [POSTPONED]

Professor Marshall Shapo is a dear mentor and a giant of American tort law and public policy.  I am selfishly disappointed that I cannot be in Evanston on April 17, but I wholeheartedly join in the celebration of this special soul.

Program and registration at Northwestern Law.

Falmouth takings case affords opportunity to plan for sea-level rise, if officials take notice, scholars write

In September, I wrote about a Massachusetts takings case pending petition for review to the U.S. Supreme Court. The Court denied review, so the Massachusetts Appeals Court decision that vacated a jury award to the takings claimant stands. My colleagues Professors Chad McGuire and Michael Goodman have written for CommonWealth Magazine about the case's potential implications for climate change in combating sea-level rise.

McGuire and Goodman described the case:

In December the U.S. Supreme Court denied a petition for review by Janice Smyth of Falmouth on the question of whether the Falmouth Conservation Commission, when denying a permit to develop her coastal property in Falmouth, exacted a de facto “taking” (often referred to as a regulatory taking, or inverse condemnation). Smyth inherited the coastal property from her parents but, by the time she took action to exercise her right to develop that land in 2012, she ran afoul of the no-development zone enacted locally to mitigate erosion and coastal land loss experienced over recent decades.

They conclude that government leaders should use the latitude afforded them by this precedent to plan for the coastline impact of climate change while "manag[ing] the consequences for coastal land values, local real estate markets, and the tax base of our coastal municipalities."  Read more.

Kids everywhere play

Kids find innocent fun in the toughest of living conditions. It's a reminder that soulful joy doesn't come from worldly things.

In the photo at left, kids in Ganvie Lake Village in Benin wanted to see themselves on the screen of my little camera. Ganvie has an unusual history tied to the Portuguese slave trade; read more at Atlas Obscura. Photo by my traveling mate, Dylan Armstrong. By the way, RI/South Coast US readers, you can catch Beninese world music Grammy winner Angelique Kidjo at The Vets in Providence, R.I., on February 22. Meanwhile watch her fabulous performance on YouTube.

The photos at right and below are from in and around Jamestown, a community in Accra, Ghana. This village was an NAACP stop for the 2019 Year Of Return (WBUR), and its Old Fort is one of the string of forts and castles that memorializes the horrific suffering inflicted on "the slave coast." Two boys I met on the street, one wearing a US Soccer shirt, were experimenting with a kite they had made out of plastic and wood debris and electrical tape. In Jamestown, ever smiling Masha was my tight-gripping companion. Both photos are mine, CC BY-NC-SA 4.0, taken with permission of their subjects.

Football is universal

Football in the Jamestown district of Accra, Ghana (CC BY-SA 4.0 RJ Peltz-Steele)

I'm a believer in sport and development and a participating researcher at the International Sport and Development Platform.  Read about the great work done around the world by Boston-based Soccer Without Borders, winner of, inter alia, the 2017 FIFA Diversity Award.

Courthouse at Cape Coast, Ghana

Courthouse at Cape Coast, Ghana (CC BY-SA 4.0 RJ Peltz-Steele)

[January 28, 2020]  Greetings, readers.  I am on sabbatical in the spring semester 2020, working on a couple of projects in law and development.  Watch below for occasional shares while I visit some parts of the world about which I have researched and written.  Watch later for a project on teaching litigation with Donald Trump materials, anticipated in time for the fall semester and election.   
Happy year of the rat!

Comparative law papers span globe, round out 2019

Comparative Law is so rewarding to teach that I'm probably overcompensated to do it.*  The inherently diverse nature of the course content, co-instructor Dean Peltz-Steele and I find, inspires students to creativity in their work in a way that much of law school never manages to do. Moreover, I think, that opportunity to be creative is why students respond favorably to the class, an oasis in the monotonous sea of bar courses.  We learn so much from their projects in Comparative Law, which adds in turn to the rewards of teaching the class.

At risk of pride, I wish to share, with students' permission, the impressive range of projects generated in our class this semester in 2019.  The following excerpts are of my construction, so any roughness in the editing is my fault.  No need to call for reference checks on any of these students; every one has our informed endorsement.  Let the hiring begin!

Markus Aloyan (Instagram), Executive Powers: Rebirth of a Soviet State [Armenia and the United States]. Therefore, the current political climate and constitutional crises in Armenia contain a historically driven, Soviet-Communist basis and more modernly developed Russian influence that came to fruition in the young Republic's 2015 Constitutional Amendments. The Russian-influenced reforms will be compared to the executive powers vested by the American Constitution, and analyzed for their causes and effects on the region. [Footnotes omitted.]

Tyler Hicks, England and United States Fishing and Hunting Laws.  The purpose of this paper is to compare the very different histories of England and the United States for wildlife management, and then show how even though these countries have different systems, their overall goal to protect and further wildlife is generally the same in effect. England and Massachusetts generally face the same issues when it comes to enforcement of their laws as well. Both countries value the ability to be able to hunt and fish but understand that they have a duty to hunt and fish both ethically and humanely. In particular, I will compare the fishing and hunting laws of England and the laws of the United States, including Massachusetts.

William McGuire, Prostitution and Human Trafficking [Sweden, UK, US].  Prostitution and human trafficking are two intertwined issues that have prevailed throughout the course of modern history, and an analysis of the different approaches taken by different societies articulates a quadripartite view of prostitution as a whole.  The four views are the moralizing view, normalizing view, the patheticizing view and the victimization view.   These four views have produced three categories of legal systems, the absolute or partial criminalization of prostitution, the regulation and legitimization of prostitution, and the abolition of prostitution.... In this paper, I will articulate the three different legal systems through example.  I will use the Swedish Model to show how the partial criminalization of prostitution has affected Swedish society as a whole.  I will use the United States to show the American model of abolition of prostitution, with the exception of the state of Nevada.  Finally, I will use The Netherlands to show the regulation of prostitution.  I will then discuss the social pressures that led to the adoption of the legal system used in each country, specifically, whether the impetus was to combat human trafficking or not.  Finally, I will conclude by discussing whether there is convergence or divergence on a regional and global level.

Daniel Picketts, [Civil Rights in United States and Contemporary Afghanistan].  The evolution of civil rights has been driven by changing societal sentiments and ultimately cemented in different civilizations through changes in their laws. Currently in the United States, civil rights are the buzzword of the day and the public’s changing sentiment is demanding attention from the nations law makers. The current climate and inclusion of different classes that make up the civil rights of the United States has taken a winding path that has led it away from the oppressive, segregate founding, to the arguable progressive, inclusive current day.... Comparing two vastly different countries with glaring differences becomes productive when the factors that have effected changes in civil rights, while accounting for any differences, cultural or otherwise, are similar. What this comparison sets out to accomplish is to compare two different countries: the United States, and Afghanistan. The similarities in civil rights are few and far between. Instead what will be compared are the events in the two countries that are somewhat similar and the outcomes that resulted in the respective countries....

Christine Powers, A Comparison of the Child Custody Standards in the United States, New Zealand, and Ireland.  This paper is an examination and discussion of the different child custody definitions and terminologies and the standard deployed by the judicial system when making a child custody determination. The paper will discuss the different factors that a judge may or must consider when making a child custody arrangement. Further, the article will discuss whether or not there is a trend towards a unified standard and whether unification of the standard is possible.

Kiersten Reider, I Do But I Don't Want To: A Comparative Analysis of the Criminal Marital Rape Laws of the United States and India.  The aim of this paper is to provide a comprehensive analysis of the criminal rape laws of the United States and India, with an emphasis on marital rape. I will spend time discussing each country individually before drawing a comparison between the two. First, I will discuss the United States, briefly touching on the common law history of marriage, and criminal rape laws at the state and federal level. I will then discuss India, touching on its hybrid legal system, and the history of marriage and criminal rape laws at the state and federal level. Last, I will discuss the similarities and differences between the two systems.

Christina Suh, Comparing the Law to Court-Mandated Divorce Parenting Class Between the United States and South Korea. This paper compares legislative and judicial history in implementation of court-mandated parenting classes during divorce proceedings in the United States and South Korea.  The discussion demonstrates how evolution of social movements in each country changed its customary laws in the area of family law jurisprudence.  In exploring the multiple related causes behind the development of the mandated parenting class, parts of the paper will address how Korea’s high cultural context influenced its revision in laws to focus on the protection of minor children and promote gender equality.  Although there is a lack of strong studies that speaks to the direct effectiveness of the program in each country, the related research demonstrates the importance of educating parents about managing conflict and promoting the health and safety of children.  In conclusion, findings will show why changes in law that educate and decrease adverse child experience (ACE) is an approach that benefits society as a whole, in the long term....

Brittany Wescott, Juvenile Justice Converges on Principles Leading to the International Harmonization of the Juvenile Justice System [South Africa, US].  This paper explores the similarities and differences between two countries, South Africa and the United States, specifically Massachusetts, in relation to the international principles governing each respective juvenile justice system. This paper explains how both the South African system and the U.S. system developed, illustrating the various principles each holds dear. In addition, this paper looks specifically at the value behind setting a minimum age of criminal responsibility, the crimes juveniles can be charged with, the limitations on sentencing, and the handling of juveniles in and out of the court room. Regardless of ratifying the Convention on the Rights of the Child, both countries have made significant progress toward embodying the principles of the international community.

Kyle Zacharewicz, Wish You Were Here: A Comparative Analysis of U.S. and Canadian Refugee Law and Policy.  Immigration and refugee policy of various nations has started to move in the trend of “locking down” the border. It has been seen, both with the increase in numbers of refugees and the occurrence of several populist movements across the globe gaining real traction, that many countries have begun to implement a “Nation First” mentality toward the growing threat of “those people,” the nomadic wanderers by happenstance of displacement and inability to return home.... While the exchange of ideas on the treatment of and allowances for Refugees in the greater European community are robust and important, this paper will instead take a deep dive into the myths of how two different countries, the only two neighbors on the continent of North America, deal with and treat refugees and asylum seekers in order to discover how truly they hold up currently.... I find it effective to analyze these two countries as they are connected by their common law systems, participation in international treaty-making, similar legal structure in immigration and refugee procedure, and a border.... It is easy to see how the policy of one can affect the other, and my goal after explaining the reality of how these systems operate today is to show how the United States has clamped down on its immigration policy, and why Canada largely has the potential makings of a similar populist movement toward “locking down” the border.

Congratulations, Comparative Law students!

—
*Hyperbole.  I'm not overcompensated at UMass, despite an inexplicable vote by the tenured faculty to disallow anyone asking for a raise.  Compare Salary.com with MassLive database.  Nonetheless, I will remain grateful for the opportunity to have worked with and learned from my students.

'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.]