First Amendment right of access to court records is alive and kicking in electronic era

Developments in the First Amendment right of access to court records were on the menu this afternoon for a continuing legal education program from the American Bar Association (ABA).

The First Amendment protects "the freedom of speech, or of the press," and the U.S. Supreme Court in most contexts has rejected the First Amendment as carving out an affirmative access doctrine.  Yet access to court proceedings and records is an exceptional and narrow area of First Amendment law that grew out of criminal defendants' trial rights in the 1970s and 1980s.  (Co-authors and I wrote about the First Amendment and related common law right of access to court records in the early days of electronic court record access policy.)

Lately there has been some litigation pushing to clarify, if not expand, the First Amendment right of access to court records.  Specifically, courts in two federal jurisdictions, the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of Virginia, have recognized a right of timely access to newly filed trial court complaints.

The public access problem arose as a corollary to the economic exigency that has constrained contemporary journalism.  When I graduated from journalism school, and triceratops roamed the earth, a good journalist on the court beat checked the dockets at the clerk's office at the end of every day.  But the luxury of one journalist-one beat is long a thing of the past, and now it's harder for the working journalist to keep close tabs on new developments at the courthouse.  In this atmosphere, some state court clerks—most definitely not all, our presenters hastened to clarify—took to withholding newly filed complaints from the public record, whether while pending for "processing," or, one might speculate, to deter coverage of sensitive subject matter long enough for news editors to lose interest.

Courthouse News Service (CNS) is a national media entity reporting on civil litigation in state and federal courts.  I reference CNS often myself, here on the blog and in teaching and research, especially for pretrial court coverage, which is hard to come by in the United States.  CNS pushed back against the delayed release of pleadings, suing successfully in civil rights under the principal federal civil rights statute, 42 U.S.C. § 1983.  CNS had to beat abstention in both jurisdictions, which it did, after a first appeal and remand in the Ninth Circuit.

Relying on the range of federal precedents supporting the principle that "access delayed is access denied," CNS substantially prevailed upon its second go in federal trial court in California.  That case was called Planet, and CNS also won on appeal in, and remand from, the Ninth Circuit in a case called Yamasaki.  Remarkably, the third CNS case, in federal court in Virginia, featured full-on discovery, experts, and motions practice on its way to a four-day bench trial and CNS win.  Questions of fact arose from the clerks' purported necessity for delay while pleadings were "processed."  The court in Virginia declined formally to follow Planet, favoring a tougher articulation of the requisite First Amendment scrutiny.

The take-away from all of the cases is that the First Amendment does attach to newly filed pleadings, under the Press-Enterprise II "experience and logic test"; that timely ("contemporaneous," which doesn't mean instant) access matters from a First Amendment perspective; and that delays in access must survive heightened constitutional scrutiny.

These are the access-to-pleadings cases that the ABA presenters discussed:

• Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) (“Planet III”), aff'g in part & vacating in part Courthouse News Serv. v. Planet, 44 Media L. Rep. 2261, 2016 WL 4157210 (C.D. Cal. May 26, 2016).
• Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020), remanding, for further proceedings consistent with Planet III, Courthouse News Serv. v. Yamasaki, 312 F. Supp. 3d (C.D. Cal. May 9, 2018).
• Courthouse News Serv. v. Schaefer, ___ F. Supp. 3d ___, 2020 WL 863516 (E.D. Va. Feb. 21) (dkt. no. 102), appeal filed, No. 20-1386 (4th Cir. Apr. 2, 2020).

CLE presenters also discussed record access in the following cases.  I've added links to cases in trial court dispositions.

• Brown v. Maxwell, 929 F.3d 41 (2d Cir 2019) (remanding for in camera document review in journalist bid to access records in case of sexual abuse victim's allegations against late financier Jeffrey Epstein).
• In re New York Times, 799 Fed. Appx. 62 (2d Cir. 2020) (affirming in part and vacating in part sealing of two parts of transcript of guilty plea hearing in Foreign Corrupt Practices Act prosecution of former Goldman Sachs employee Timothy Leissner).
• Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020) (secreting video depositions of non-party witnesses, their privacy interests overcoming access presumption, upon access bid by online blogger in case by former student at orthodox Jewish school against the school and principal, alleging the principal sexually molested him while he was a student).
• Trump v. Deutshce Bank AG, 940 F.3d 146 (2d Cir. 2019) (denying access to taxpayer names as not "judicial documents," upon news organizations' motions to intervene and unseal unredacted letter filed by bank in appeal, in order to learn the redacted names of taxpayers whose income tax returns were in bank's possession, in case of bank resistance to subpoenas in House investigation of President's tax returns).
• King & Spalding, LLP v. U.S. Dep’t of Health and Hum. Servs., No. 1:16-CV-01616, 2020 WL 1695081 (Apr. 7, 2020) (denying seal, but allowing withdrawal, of information about attorney fees filed with motion, rejecting firm's claim of need to protect competitive information).
• United States v. Avenatti, No. 1:19-CR-00373, 2020 WL 70952 (S.D.N.Y. Jan. 6, 2020) (denying motion, filed by Government, defendant, and subpoena target, to seal records related to subpoena duces tecum issued on behalf of defendant on non-party in criminal proceeding).
• VR Optics, LLC v. Peloton Interactive, Inc., No. 1:16-CV-06392, 2020 WL 1644204, at *10 (S.D.N.Y. Apr. 2, 2020) (dkt. no. 308, at 17-20) (denying, as moot, motions by both parties to seal trial court records in patent dispute).
• Motion to Intervene and Unseal, Dawson v. Merck & Co., No. 1:12-cv-01876 (E.D.N.Y. filed Sept. 12, 2019, dkt. no. 121) (decision pending) (seeking unsealing and removal of redactions in court records in settled multi-district product liability litigation over alleged side effects of prescription drug, "Propecia," upon motion of news agency Reuters).

One indicator I found encouraging from an access advocate's perspective is the incidence of court rulings in favor of access even when both parties want to seal.

The ABA program was sponsored by the Forum on Communications Law.  The presenters were:

• Heather Goldman, Bryan Cave Leighton Paisner, Washington, D.C.,
• Rachel Matteo-Boehm, Bryan Cave Leighton Paisner, San Francisco,
• Christine Walz, Holland & Knight, New York, and
• Michael Grygiel, GreenbergTraurig, New York.

Report from a Social Distance Week 8: Speaking of Football, Magic, and Beer ...

Del's is a Rhode Island tradition.  (Photo by Lady Ducayne CC BY-NC 2.0.)

This will be my last weekly report for a while.  I've tried to make it extra savory.  My law school cut summer compensation, so my lemonade from lemons will be much less screen time in the next three months.  These eight "Reports from Quarantine" / "Reports from a Social Distance" have been a lot of fun to write, and I'm grateful for the positive feedback you've sent, dear reader.  Nevertheless, it feels like work anytime a laptop is staring back at you.

Though still experiencing a record-cold spring, the temperature here is at last topping 60°F (15.5°C) as many days as not.  My sprained ankle seems healed, thanks to my Instagram medical team, so I'm looking forward to more time out of the house.  We're reopening in Rhode Island, but there's not yet any timeline for phase 2, much less phase 3.  As I wrote yesterday, people's patience is wearing thin even here in staid New England.  Here's hoping that falling infection numbers bear out our anxious economic plan.

This has been my week 8 since coming home from Africa, and week 8 at home.  Literally, at home.

What I'm Reading

Mary Sidhwani, How to Find the True Self Within: Secrets of Relieving Stress and Anxiety (2019).  I'm not the self-help sort.  But my aunt wrote this book.  I can't imagine a more fitting title to kick off my time away from work.  I'm only as far as the introduction, and I'm keeping an open mind.  Audio chapters are available also.  Dr. Sidhwani is the compassionate soul behind the Women's Therapeutic Health Center, based in Ellicott City, Maryland.

John Maynard, The Aboriginal Soccer Tribe (2019).  This unusual nonfiction selection was a gift—name drop ahead 🤭—from Bonita Mersiades, whom I met last year at Play the Game, and of whom I became an instant admirer.  Mersiades is known in world sport circles as "the Australian whistleblower" for exposing FIFA corruption in soliciting nations' World Cup bids years before the 2015 indictments made whistleblowing fashionable.  She suffered enormously for the perceived betrayal, persecuted both professionally and personally.  Watch her talk about it at Play the Game, or read my account of the session.  A powerful personality already schooled in fighting the establishment as an executive in women's sport, Mersiades was not so easily deterred.  She wrote her own book, aptly titled Whatever It Takes: The Inside Story of the FIFA Way (2018); started her own boutique publishing house, Fair Play; and became a renowned commentator on the global business of football.

Knowing my interest in comparatism and sport and society, including research on Australian indigenous media, Mersiades gifted me the 2019 Maynard release.  John Maynard hails from a Worimi Aboriginal community on coastal New South Wales. He is a professor of indigenous history at the University of Newcastle in Callaghan.  Maynard's cultural-comparative work has set Aboriginal politics alongside African American and Native American policy problems.  He's also an avid football fan, and this book is a definitive biography of soccer and Aboriginal society.  The 2019 book from Fair Play is actually a revised update of an out-of-print 2012 original.  If you're a football fan, or you want to buy a gift for one, check out Fair Play's many other titles, too.  They include histories of Aston Villa, Liverpool, and Everton, as well as other socio-cultural studies of Asia and Brazil.

The 12 Minor Prophets.  With our church, we continue our year-long reading program, moving on to the intriguing teachings of the 12 minor prophets.  As usual, the BibleProject has fabulous drawing videos, starting with Hosea, Joel, Amos, and Obadiah.  Worship services are continuing online for now, and, as always, all are welcome, 0930 EDT on Sundays.

What I'm Watching

The English Game (2020).  This limited series was developed for Netflix by none other than Julian Fellowes (Downton Abbey).  Its six episodes are sometimes in a clumsy rush to deliver its upstairs-downstairs social message.  Overall, though, this story about the origins of association football (soccer) in late-1870s England makes for a thoroughly rewarding work of television.  The series uses football, today the world's game, as a lens through which to view evolving society.  The show brings within its scope not only thinning social strata, but emerging women's and labor rights.  Football itself was at a pivotal point of development at this time, transitioning from elite pastime to professional play, and introducing a more sophisticated form of passing play, recognized as the norm today, relative to a simple strategy of dribbling attack.

The story of a working-class mill team making an unprecedented run to steal the FA cup from elite-establishment collegiate players is very loosely based on real events.  Read more at the publication of your choice: Daily Mail, Digital Spy, Esquire, Express, i news, Mirror, Radio Times, The Spectator, or The Telegraph.  Kevin Guthrie is stately as earnest Scottish footballer Fergus Suter; Guthrie was Abernathy in Fantastic Beasts.

The Great (2020).  I watched the first few episodes of HBO's Catherine the Great with the resplendent Helen Mirren, who received a Golden Globe nomination for the lead role.  I've been embarrassed to admit that I found the show too slow and didn't finish it.  Now comes Hulu's The Great to tell me, it's OK, and to make Catherine's remarkable story so much more delightfully digestible.  This dark comedy features Elle Fanning (Maleficent's Princess Aurora and Dakota Fanning's sister) as Catherine and Nicholas Hoult (X-Men's Beast, the big screen's J.R.R. Tolkien, and the most recent Watership Down's Fiver) as Peter III.

At times laugh-out-loud funny and taking great liberties with history—TV Catherine only arrives in Russia for her wedding to the already-emperor, whereas the real Princess Sophia had been brought to court decades earlier—the story is, as the show's title card disclaims, "occasionally true"—as in portraying Count Orlov, played ably furtively by Sacha Dhawan (Doctor Who's latest Master), as an enlightened co-conspirator in Catherine's inevitable coup. The magnificent sets meant to emulate 18th-century Russian imperial opulence include one real Italian palace and several English castles and houses.  Be warned, there are brief and highly fictionalized portrayals of violence against animals.

The Politician s1 (2019).  This creation from Glee trio Ryan Murphy, Brad Falchuk, and Ian Brennan was much hyped, but ... weird.  I was interested enough to watch it all the way through.  But Glee it is not.  The Politician lives somewhere amid a wicked ménage à trois of Napolean Dynamite, My So-Called Life, and Alex P. Keaton.  Dear Evan Hansen's defining stage star Ben Platt snagged a Golden Globe nomination for the lead role, and he's terrific.  But the story of a socially awkward teen hell-bent on winning his high school presidency as a ticket-punch on his life-road to the White House is more aimless in the execution than the funny trailers suggest. Season two is expected in June; I'll probably skip it.

Good Eats Reloaded s1-s2 (2018-2020).  Devoted fans of the 14-season Food Network phenomenon that was Good Eats (1999-2012), we went twice to see cinematographer-turned-food-guru Alton Brown share his scientific approach to the culinary art on stage, in 2014 and 2016.  At the latter show, Brown caused an eruption of audience elation upon a cryptic clue that Good Eats might be coming back.  It has, and season 15, retitled Good Eats: The Return, is now free to view in 13 episodes at the Food Network online.  In the interim, Brown made two seasons of Good Eats Reloaded, the second coming out weekly now from the Cooking Channel, available there and on other platforms.  At first I did not want to watch Reloaded, because they looked like just rebroadcasts of the old show.  I was wrong; they're much more.

Hosted by Brown, Good Eats Reloaded is an often hilarious, sometimes MST3K-like look back at Good Eats highlights with plenty of new content.  Contemporary Brown mercilessly mocks his younger self, often breaking away to tell us, for example, how he cooks a burger now, with decades' more experience, or that he no longer uses rolling pin rings because, what seemed like a good idea at the time, they broke soon after the show was filmed.  Sometimes there are all new recipes; he cuts out early from s1e01 Steak Your Claim: The Reload to show us how to make my favorite Korean comfort food, bibimbap.  But, I say, leave out the fish sauce 😝 for the authentic urban-Seoul variant.  Speaking of eats ....

What I'm Eating

Lasagna.  My wife made her incomparable vegetable lasagna (pictured before the oven) for Mother's Day.  Get off my case.  I made breakfast.  She likes to cook.  It's her escape.  Heaven knows she deserves to escape.

Antoni's baked turkey mac'n'cheese.  Furthermore for Mother's Day, we had a family Zoom on my wife's side, wherein everyone made mac'n'cheese comfort food, feat. ground turkey, from Antoni's cookbook, Antoni in the Kitchen.  (That was just one of three Mother's Day Zoom calls.)  The product was tasty, but heavy.

Crepe cake.  Another self-sacrifice 😉 in the #SaveOurRestaurants campaign, we went back to neighbor-owned Crepelicious for its signature, 14-layer, green-tea crepe cake.  Speaking of heavy...

I'll lose weight after lockdown.  Promise.

What I'm Drinking

Mardi Gras King Cake.  My last order from Community Coffee brought Mardi Gras King Cake to my door.  It tastes almost sweet on its own, flavored as it is with cinnamon and vanilla.  It recalls my wife's king cake from March and reminds us of our beloved New Orleans, an especially welcome nostalgia since the cancellation of this summer's AALL conference there.

Koloa Estate.  We took an interlude from Community to visit the far side of the continent with medium-roast Koloa Estate from Kauai Coffee.  Kauai brands often get a bad rap because they're not 100% Hawaiian grown.  You're forgiven if the package led you to think otherwise.  Still, if you don't overpay, it's a solid coffee, for a blend, with some of that nutty flavor that characterizes beans grown in Pacific Rim soil.

Sharish Blue Magic Gin.  I brought this gin back from Lisbon.  Its name is the Arabic name of its home town, Monsaraz, in the southeastern Alentejo region of Portugal, and the unusual whale-fin bottle shape pays homage to the region's easterly hills.  Sharish is made by António Cuco, who, according to various accounts, was an unemployed teacher when he started experimenting with distillation in his home pressure cooker in 2013, set to head a multimillion-euro operation in a few short years.

Sharish's defining feature is its brilliant blue color, more indigo in brighter light and undiluted density, and its "magic" is that this color turns to pink in the presence of tonic.  I experimented, and it was fun. The blue color comes from the flower of the blue pea blossom, clitoria ternatea, in fact named for its, uh, feminine shape.  Tonic really does change the color, not just dilute it, shifting the acidity balance to alkaline, like when we played with pH paper in grade-school science class.  When the novelty wears off, a gin with a rewarding and summery flavor remains.  Sharish leads with its fruits, raspberry and strawberry, and they're backed up by a palette of Alentejo-grown botanicals: angelica, cardamom, cinnamon, ginger, and licorice, besides the blue pea and juniper.  Sharish goes down so pleasantly, even straight, that its 40% ABV sneaks up on you.

Clitoria ternatea is not a European native, and this is not the only gin that uses it.  The flower goes by many names around the world, including butterfly pea and Asian pigeonwings.  It's an Asian native and has long been known in Asian cuisine, notably Thai blue rice.  The flowers give Empress 1908 gin an indigo hue and a savour overlapping with Sharish.  Made in British Columbia and shipped worldwide, Empress is easier to find in North America, though I think a rung below Sharish in finish.

French 75.  I wanted to make a special cocktail for my wife for Mother's Day.  The French 75, a champagne-and-gin mix, was the signature favorite of Count Arnaud Cazenave in 20th-century New Orleans, according to the John DeMers book, Arnaud's, that I wrote about two weeks ago.  I used a Bon Appetit recipe, a French champagne, and New Amsterdam gin.  My French 75 made me feel like a high-class continental cultural import.  I was so carried away that I briefly joined the neighbor's bichon frisé in looking down (figuratively) on our lab mix.

Death by King Cake.  I ventured to the "essential" liquor warehouse to bring my wife two new beers to try for Mother's Day.  We love whites and sours.  Both of these were indulgent treats.  Death by King Cake let us end the day the way we started it.  From Colorado-based Oskar Brewing, King Cake is a 6.5% ABV white porter brewed with vanilla, cinnamon, nutmeg, cacao nibs, orange peel, and pecans.  Oskar promises Death by Coconut coming soon, an Irish-style porter in the same "series."

Key Lime Pie Sour.  Of all the food and bev I've tried around the world, I remember vividly my first frozen-key-lime-pie-slice-dipped-in-chocolate-on-a-stick in Key West, Florida.  That was the moment I realized that humanity had achieved Roman Empire-level gluttony on a global scale, and that our fall is inevitable, probably coming sooner than later, but that it would be a helluva ride down.  This is that in a beer.  From New Hampshire-based Smuttynose Brewing Co., there's an adorable seal visage on the back of the can. 6.3% ABV.

It was a Zoom Mother's Day


Stay thirsty, my friends!

Eating and Drinking images by RJ Peltz-Steele CC BY-SA 4.0 with no claim to underlying works
Zoom captures by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim of data protection waiver

Posted May 15, 2020. To settle a pandemic-related financial crisis at UMass Dartmouth, law faculty are not receiving research compensation in summer 2020. I will be away from my desk, May 16 to August 15. Blog posts will be sparse, and I will not receive email. On the upside, summer 🌞! If you need to reach me, please send a message through the faculty assistants’ office (Ms. Cain and Ms. Rittenhouse). Stay thirsty.

Legal attacks on lockdown mount; R.I. Governor's time will run out, report warns

Persons entering Rhode Island remain subject to 14-day

quarantine in the present phase 1 of reopening. Photo by
Taber Andrew Bain CC BY 2.0.

A former Rhode Island Supreme Court justice and a libertarian think tank asserted this week that R.I. Governor Gina Raimondo is running out of rope in sustaining her emergency lockdown orders.

Earlier in the pandemic, we law types found ourselves with time on our hands to read up on, and sometimes write about, the legal landscape of emergency powers.  Report 98-505 from the Congressional Research Service (here from the Federation of American Scientists and updated March 23, 2020) and CDC public health emergency guidance (2009, updated 2017) suddenly became popular downloads.  The 50-state compilation of quarantine and isolation laws at the National Conference of State Legislatures was well visited.  Various guides to emergency powers have blossomed since.  Heritage published a "constitutional guide" as early as March.  The Brennan Center updated a 2018 report about three weeks ago.  At Lawfare, Benjamin Della Rocca, Samantha Fry, Masha Simonova, and Jacques Singer-Emery overviewed state authorities the week before last.

Wisconsin Supreme Court chamber (Daderot CC0 1.0)

This week brought news of the Wisconsin Supreme Court decision two days ago, striking down the Wisconsin governor's stay-home order.  Clarity around the scope of the ruling and guidance as to how it should be implemented was woefully lacking from the 4-3 fractured court, and public confidence in the decision was undermined by the participation of a lame duck conservative justice in forming the majority.  Against the backdrop of a state supreme court already badly tarnished by partisan politics, the decision has only aggravated America's White House-fueled ideological in-fighting over coronavirus public policy.

Rhode Island Governor Gina Raimondo

Personally, I've been happy with the leadership of Governor Gina Raimondo in responding to the crisis in my home state, Rhode Island.  But to be fair, I work in Massachusetts, and my job has been relatively secure.  There have been peaceful protests against lockdown in Rhode Island, and there is no doubt that the economic closure is devastating the small-business-heavy economy in the nation's smallest state.

On Wednesday, Robert Flanders, Matthew Fabisch, and Richard MacAdams published a legal analysis of Governor Raimondo's emergency orders.  The report came from the free-market think tank, the Rhode Island Center for Freedom and Prosperity.  The authors are all lawyers; Flanders is a former associate justice of the state supreme court and was once a Republican challenger to U.S. Senator Sheldon Whitehouse.  Flanders wrote a companion editorial for The Providence Journal.  (HT@ Gene Valicenti.)

The takeaway from the report in the news is that the Governor has overstepped her emergency authority and is ripe for a lawsuit.  That's an understandable but unfair oversimplification.  The report is a solid legal analysis that examines the scope of state executive authority from a range of angles, including the statutory framework and constitutional limitations such as takings.  The popular takeaway derives from just one thread of the analysis, if an important one: The Governor's emergency powers must be limited, and a key dimension of those limits is time.

Rhode Island State House (cmh pictures CC BY-NC 2.0)

The report does not purport to adjudicate the Governor's emergency response as wrong or right.  Rather, the authors opine, when the Governor's authority runs up against the reality that exigencies are, by definition, not perpetual, the General Assembly has a responsibility to step up and lead.  That might mean simply extending the Governor's authority to make the kind of spot decisions that will be required for subsequent phases of reopening.  Or the legislature may override executive-ordered closures and force the reopening of the economy.

Saliently, the legislature should take charge of public policy.  The most cumbersome branch of government in its populous operation, the legislature is to be excused in the throes of emergency.  But after enough time has passed, the most democratically responsive branch of government should be able to gather its wits, get on its feet, and make law.  Decisions such as whether K12 schools will reopen in the fall, for example, not just financial shortfalls, should be the subject of fact-gathering legislative hearings right now.

The inevitable logic of this ideal is subject to reproach on grounds that many of our state legislatures in the United States, Congress besides, have become dysfunctionally non-responsive to increasingly severe social and economic problems. This paralysis has many and complicated causes, including corporate capture and unbridled gerrymandering.

In the functionalist reality of our government of separated powers, if one branch abdicates its mantle, the others will fill the vacuum.  Thus, in the absence of legislative leadership, a governor may be expected to carry on with policy-making, and a state supreme court, especially a politicized one, may be expected to push back.  It's in this sense that the pandemic crisis is exposing yet another grave institutional weakness in the infrastructure of American government.

If a legislature remains paralyzed long enough, the people will become antsy.  Among the ultimate remedies for legislators who would shirk their duties, some are more palatable than others (video: Liberate Minnesota protest, April 17, by Unicorn Riot CC BY-NC 3.0).  Once upon a time in Rhode Island, residents took up arms to compel the legislature to expand enfranchisement through a constitutional convention.

Alas, one problem at a time.

Report from a Social Distance Week 7: For lockdown horror, 'Dr. Rick' prescribes hibachi, водка, and tulips

My new doorbell cam
spies a ne'er-do-well.

Quote of the Week:  "Murder hornets, but with the right lawyer, manslaughter bees. 🐝"  —attorney Jennifer T. Langley

Our stay-at-home order is formally lifted in Rhode Island as of today, May 9, though in this phase one, most restrictions remain in place as either mandates or recommendations.  I’m not eager to go out much myself until we have effective antibody testing, and then we'll see.  And we’ll have to hope and pray that our economic reopening doesn’t drive up the infection numbers.  Three days ago, with stay-at-home still in place, I saw dozens of kids playing basketball at Burr's Hill Park.  Parents were there, too.  “Knock it off,” Governor Gina Raimondo would have said.

Oh, I almost forgot the week's most exciting news.  Hitting the grocery store first thing in the morning, we scored a whole package of toilet paper!

Knock it off.  This is week 7.

What I’m Watching

Knives Out (2019).  This movie is a rollicking good time, an Oscar-nominated screenplay in the hands of a classic cast.  Daniel Craig, with a credible Mississippi drawl, proves why he’s so much better than Bond, and Jamie Lee Curtis, well, enough said.

Ozark s3 (2020).  I finally caught up, and there’s a reason why this show was viewers’ number one new binge in lockdown.  The show remains intense, not for the faint of heart.  I didn’t see coming that Helen would play such a pivotal role in season 3.  Now I have to make room on my top TV lawyers list, category: drama, for Janet McTeer’s Helen Pierce (link to spoilers).  This is not Newcastle UK-born McTeer’s first turn as a TV lawyer; she played Patty Hewes’s vengeful secret sister Kate Franklin in the final season (2012) of Damages.  In the Marvel universe, she’s Jessica Jones’s mom, Alisa Jones.

American Horror Story: 1984 (s9) (2019).  For me, AHS has never been able to top season 5’s super-creepy Hotel (2015-16), with Lady Gaga, but season 9 was enjoyable.  It’s AHS’s answer to Stranger Things, and I can’t get enough of these tongue-in-cheek ’80s tributes.  As usual, the anthology series assembles an all-star squad of regular and guest stars.  Carrie Fisher daughter and “Scream Queen” Billie Lourd well anchors the cast.

Locke & Key s1 (2020).  I was pleasantly surprised by the first couple episodes.  The show may fairly be described as YA, employing the convenient contrivance that the adults can’t see the evil spirits.  Nevertheless, it’s creative and cleverly executed.  Our teenage heroes occupy a haunted house, of sorts, in coastal Massachusetts.  Really the series is filmed mostly on finely crafted sets in Toronto with gorgeous outdoor scenes in UNESCO World Heritage Site Lunenberg, a port town on Nova Scotia’s southeastern coast.  I’m fast becoming a fan of lead actor Connor Jessup, who played Ben Mason in Falling Skies (2011).  The Locke & Key story is based on a 2008-13 graphic novel series (Amazon) of the same name and in a style that pays homage to H.P. Lovecraft (a Providence, Rhode Island, native, see also Atlas Obscura) and Richard Matheson (obituary).  A Fox pilot that wasn’t picked up, Locke & Key also was a 2011 TV movie by director Mark Romanek, who directed the recent s1e01 of Tales from the Loop.

Outer Banks s1 (2020).  I'm not going to pretend this is more than it is.  Another YA offering, sometimes I like to immerse myself in the equivalent of what my grandmother called her "stories," pretty people in the throes of impossible melodrama. Bonus, Outer Banks actually has a thrilling story from writer Shannon Burke and the filmmaker Pate Brothers. It's Treasure Island meets 90210, and I thought that before I learned that Burke's most recent and successful novel, Into the Savage Country (2016), was, he said, inspired by books including TI, Kidnapped, and White Fang.  The show totally confirmed my suspicion that my niece and nephews growing up on the OBX lead frenetic lives filled with intrigue, murder, and buried treasure, all interlaced with vertiginous adolescent lust.  The cast, the usual twenty-somethings pretending to be ten years younger, are mostly relative newcomers, well handpicked from the minor character ranks of such other recent features as Stranger Things, Black Lightning, and The Hate U Give.  On the adults-as-adults side, American Horror Story alumna Adina Porter, also a veteran of True Blood and Newsroom, turns in another spellbinding performance as Sheriff Peterkin.

Basic Versus Baller: Travel at Any Cost s1 (2018-19).  The perfect virtual escape from lockdown, I'm torn between loving these guys and burning with envy that I didn't think of this first.  Brothers Marko and Alex Ayling, "the Vagabrothers," went to university in southern California and were teaching English in Spain when they started vlogging in 2012.  They became a YouTube sensation and were invited to make 10 episodes of this show for Tastemade, an eight-year-old, Santa Monica-based, food-and-travel media company that has carved out a lucrative niche on the digital frontier.  The show is available on various platforms; I'm watching on Hulu.  The conceit is that in each episode, one brother gets to live the high life and the other has to hostel it, as they explore destination cities and their food worldwide.  Sponsorships figure in unobtrusively.  The competition angle is light-hearted, as the brothers succeed in sharing the delights of different price points and put local culture on center stage.

Progressive ads.  Progressive Insurance—which has never had a worthwhile deal for me—has a hilarious new ad character, "Dr. Rick."  “Progressive can’t protect you from becoming your parents” is the theme; Dr. Rick's intervention was forecast by two also funny "parentamorphosis" ads seven months ago.  Two new 30-second bits are “Group Outing” and “Pillows.”  There’s also a 74-second mockumentary on YouTube.  Progressive’s faux Zoom lockdown ad, with Flo, is pretty funny, too.  Progressive uses the Boston-based ad agency Arnold, and Martin Granger directed.

What I’m Eating

Miku Japanese Cuisine.  To #Save­Our­Restaurants, we ordered curbside this week from nearby Miku: wonton soup, crispy calamari, pork gyoza, sesame chicken, and a ridiculous portion of hibachi chicken.

What I’m Drinking

Community House Blend.  A new order arrived from Community, and we started with the solid house blend, a medium-dark roast.

Водка Окно в Европу.  We took a short interlude from our gin habit.  The name of this Russian vodka by St. Petersburg-founded Ladoga Group translates to “Window on Europe.”  I brought it back from Russia, mostly for the pretty design on the bottle.  Inside, what can I say, it’s vodka.

Dry Line Cape Cod Gin.  A Christmas gift from my wife, this briefly barrel-aged, organic-cane-sugar double distillation from South Hollow Spirits in North Truro, Massachusetts, leads with juniper berries harvested locally from eastern red cedars, and follows up with angelica root grown in a compost of Truro Vineyard grape skins.  My bottle is from small batch #10.  The Boston Globe aptly said it “has a soft bite,” and Drink Hacker likewise reported a “palate … extremely soft for a gin of this alcohol level,” 47% ABV, with a “sweet and lengthy” finish.

What I’m Doing to Stay Sane

Google Nest Thermostat and Hello.  We gained some distraction through home improvement and a socially distancing visit from our masked local technician.  Google’s thermostat gets a 👍 thumbs up; its doorbell gets a 👎 thumbs down.  The thermostat we bought to replace our broken one.  It’s pricey, but we expect to recoup savings from all those times we both leave home and forget to turn the heat off.

The Hello doorbell/security cam was a gift.  It makes a quality image and shares a futuristic look with the thermostat.  But it comes with a lot of shortcomings.  First, the Hello is almost useless without a paid subscription.  The device itself has no processing ability; it’s dumber than a mere motion sensor.  The Hello must constantly stream image to and from Google just to check for motion.  Hence, the subscription is necessary if you want the device to be anything more than a doorbell.  Second, the data stream eats bandwidth and will ruin you if your service is capped.  Third, the cloud-based detection algorithms have a long way yet to go.  The motion sensor is oversensitive, set off by trees and shadows.  The sound sensor is a non-starter on our busy street.  These shortcomings are all understandable for a work-in-progress product, but not for one that demands a monthly fee.  I have a Blink camera already, and I’m much happier with that.

Watching spring spring.  The tulips are opening, despite a continuing cold that diverges daily more from seasonal highs.  The birds are fighting it out for access to the feeder.  Sometimes #QuarantineLife is just about watching the grass grow.

Happy Mother's Day!

🌷🌷🌷🌷🌷🌷🌷

Photos and video, except in "What I'm Watching," RJ Peltz-Steele CC BY-SA 4.0

Shielding business from coronavirus torts neglects deep-seated dysfunction in litigation, health insurance

Amid reopening and the controversy over reopening, American private business is seeking legislative protection against coronavirus-related tort litigation.

To oversimplify, businesses are worried about being sued if a worker or customer contracts the virus in the workplace or in a retail space.  Tuesday morning, U.S. Chamber of Commerce Executive Vice President and Chief Policy Officer Neil Bradley told National Public Radio that the Chamber is not asking for blanket immunity, but "a safe harbor ... against frivolous lawsuits."

"No one wants to protect bad actors here," Bradley said.  He suggested that liability could be predicated on gross negligence or "willfully forcing workers to work in unsafe conditions," which, legally speaking, is recklessness.

Protecting business from litigation is the Chamber's bread and butter, and that doesn't make it the Big Bad Wolf.  Businesses, especially small businesses, represent real people, owners and workers, who, in the absence of any extended public safety net, need to work to make ends meet.  Facing bankruptcy because of prolonged closure or because of the inevitability of a contagious disease surmounting all precaution is a heck of a catch-22 to put a business in.  From that perspective, the Chamber's position seems a fair ask.

At the same time, the Chamber's advocacy highlights two enormous socio-legal problems in America: transaction costs in tort litigation and employment-based health insurance.  A safe harbor would brush both these problems back under the rug.

It isn't tort litigation per se that business fears; it's the cost of that litigation.  Corporate defense—that's the kind of law I practiced a million years ago—wins in litigation with an enviable record.  The burden of proof rests with the plaintiff, which means that even meritorious causes may fail upon the vagaries of evidence.  What's more, the usually superior resources of the corporate defense bar warp the playing field of an adversarial contest predicated on the fallacy that the truth will out.  But the defense's advantages don't change the fact, for many reasons I won't here explore, that litigation costs a fortune.

As a result of runaway transaction costs, everyone loses.  Plaintiffs and would-be plaintiffs with meritorious complaints wind up not suing, winning nothing, or winning far less than will make them whole.  Plaintiffs without meritorious complaints may nevertheless win in settlement.  Meanwhile the cost of defense in every scenario, from insurance in anticipation of litigation to fees in its management, is visited on American business and passed on to the American consumer.  And the mere risk of those costs results in over-deterrence that burdens the American marketplace, distorting economic behavior.  This dysfunction renders the U.S. personal injury system a laughingstock elsewhere in the world.

So if the deck is so stacked against plaintiffs, why do they sue anyway, courting an invariably unfulfilling outcome and burdening even prevailing defendants?  That leads us to the second problem, our dysfunctional health insurance system.

An injured person might wish not to sue, yet become a plaintiff anyway; if the person is insured in any measure, the insurer will make the choice.  And notwithstanding the intervention of insurance, our healthcare system usually leaves an injured, would-be plaintiff holding a bag of devastating, bankruptcy-inducing invoices.   (I asked, rhetorically, earlier this week, what perversion of American values causes a working person diagnosed with terminal cancer to have to spend his precious last year of life carving out time from family and chemotherapy to do fundraising.)  In the American litigation and health insurance systems, a plaintiff sues against all odds because the plaintiff has no other choice.  And in a perverse feedback loop, plaintiff and plaintiff's insurer are permitted to pin their hopes on the likelihood that the threat of excessive transaction costs will shake loose a settlement upon even the weakest of claims.

The problem of healthcare costs is compounded by America's stubborn insistence on employer-based health insurance.  Focused on the bottom line, employers effectively make advance healthcare decisions for workers, which, naturally, increases incurred costs for the workers who become patients.  With precious little control over their healthcare choices, but afraid of wholly losing coverage, risking food and shelter for themselves and their families in a country that eschews social safety nets for people while bailing out corporations, workers make irrational market choices, such as working for less than a living wage, accepting a salary to obviate overtime, going to work in unsafe conditions, and going in sick.  We got into this mess entirely by accident, as Planet Money reported in 2009, and we seem helpless to get out of it.  Ironically, now, the Chamber seeks to protect business against a litigation problem that results in large part from employers' own choices, however economically rational, to leave workers unprotected from catastrophe and trapped in a job by an unlevel labor market.

In the theoretical American tort system, the way it works when I teach its rules and policies to law students in America and Europe, the businesses represented by the U.S. Chamber should not be worried about tort lawsuits.  The test for negligence-based liability in American tort law is simply unreasonableness.  A business that takes reasonable measures to protect workers and customers against infection would suffer no liability, even given the inevitability that contagion will still happen in the face of reasonable precautions.

The truth of the matter is quite different from the theory, and Bradley's statement to NPR demonstrates the divergence.  On the one hand, Bradley said that business must be protected against "frivolous lawsuits."  The problem with that rationale is that the legal system already provides for potentially hefty penalties and sanctions against any plaintiff or plaintiff's lawyer who would try to prosecute a truly frivolous lawsuit.

On the other hand, Bradley said that businesses should be liable only upon a heightened culpability standard, gross negligence or recklessness.  "No one wants to protect bad actors here," he said.  Someone who is grossly negligent or reckless is not necessarily bad; bad is a normative judgment and not a workable legal standard.  Colloquially, he is equating bad with culpability, and that's fair.  But if the equation holds, why is a negligent business not also bad?  Is every negligence lawsuit necessarily a frivolous lawsuit?

Bradley made a strategic semantic choice.  Mention of the "frivolous" is calculated to evoke a gut reaction of displeasure in Americans who have been conditioned by the heavy media messaging of tort reform advocacy.

But let's for the moment cut Bradley and the Chamber some slack.  From where they sit, frivolous cases and negligence claims are equally problematic.  That's because plaintiffs are compelled by the circumstances of our dysfunctional systems to sue in negligence even when the merits might not bear out the claim.  In other words, the brokenness of our litigation and healthcare systems over-incentivizes injured persons to litigate.  A plaintiff decides to sue because of desperate need for compensation, not because of the strength of the claim that the defendant is blameworthy.

Negligence isn't the thing that's broken.  For my money, negligence, meaning the reasonableness test, applied by a Seventh Amendment jury, remains one of the greatest innovations in law in the last two centuries and has proved a worthy American example for the world.

Our litigation system is broken.  And our health insurance system is broken.  Adoption of a safe harbor for defendants within those systems as they exist now will just mean that when a business is negligent, and a person gets sick as a result, the sick person will bear the cost of the illness and of the business's negligence.  That's not how American civil justice is supposed to work.  That's not how it was ever supposed to work.

So many pundits, so many of us, Americans and people around the world, have wondered aloud whether this crisis might at last precipitate real and meaningful change, change that might bring people's standard of living into correlation with our fantastic global wealth and technology.  We've wondered whether, and we've dared hope that, we stand at the threshold of the Great Realization, from which humankind will never turn back.

In that frame of reference, the safe harbor proposed by the Chamber, or moreover statutory immunity from tort liability, would be a profoundly disappointing portent of business as usual.

My thanks to Professor Rebecca Crootof at Richmond Law for an email that got me thinking about this.  Thanks also to any loyal reader who made it this far without pictures.  My "Report from a Social Distance Week 7" is delayed but not forgotten; look for it this weekend.