Emergency orders survive constitutional scrutiny; Mass. Court cites Korean War, smallpox cases

The Massachusetts Supreme Judicial Court (SJC) ruled Thursday that pandemic emergency orders of the Commonwealth Governor were valid under the Massachusetts Civil Defense Act and public health law, rejecting challenges based in state and federal civil rights, including due process and the freedom of assembly.

Defunct Youngstown Sheet & Tube Co., 2006 (stu_spivack CC BY-SA 2.0)

The Court borrowed doctrine from U.S. constitutional law on separation of powers, Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952), a case about President Truman's seizure and operation of steel mills during the Korean War.  The SJC used Youngstown and the concurring opinion of Justice Robert H. Jackson to reason that Governor Charlie Baker acted at the zenith of executive power, because he acted within broad statutory authority.

Official portrait of Justice Jackson,
by John C. Johnsen, Collection of the
Supreme Court of the United States, via Oyez

In Youngstown, Justice Jackson set out a three-part rubric to test the strength of executive power, whether bolstered by congressional authorization, occurring amid legislative silence, or arising in defiance of legislative imprimatur.  Though not without controversy attaching to the communitarian result in the context of government seizure of private enterprise, Justice Jackson's famous test has been committed to memory by law students studying for the bar exam for generations.  Justice Jackson was Attorney General to President Franklin D. Roosevelt, so loyal to the New Deal.  Roosevelt appointed Jackson to the Court in 1941.  While a Supreme Court Justice, Jackson also served as chief U.S. prosecutor in Nuremberg after World War II.

Ruling the pandemic within the scope of "other natural causes" of emergency under the Civil Defense Act (CDA), the Court indicated also that it was not shirking its oversight role:

[W]e emphasize that not all matters that have an impact on the public health will qualify as "other natural causes" under the CDA, even though they may be naturally caused. The distinguishing characteristic of the COVID-19 pandemic is that it has created a situation that cannot be addressed solely at the local level. Only those public health crises that exceed the resources and capacities of local governments and boards of health, and therefore require the coordination and resources available under the CDA, are contemplated for coverage under the CDA. Therefore, although we hold that the COVID-19 pandemic falls within the CDA, we do not hold that all public health emergencies necessarily will fall within the CDA, nor do we hold that when the public health data regarding COVID-19 demonstrates stable improvement, the threshold will not be crossed where it no longer constitutes an emergency under the CDA.

Mass. Gov. Baker (Charlie Baker CC BY-NC-SA 2.0)

Relative to civil rights, the Court recognized the Governor's argument under Jacobson v. Massachusetts (U.S. 1905).  A federal Supreme Court case that arose in Cambridge, Massachusetts, at the turn of the century before last, Jacobson has been cited widely lately, amid the coronavirus pandemic, because in Jacobson, the Court upheld an ordinance requiring vaccination for smallpox as a valid exercise of state police power.

Critics fairly argue that Jacobson is read too broadly as a constitutional authorization of mandatory vaccination.  Among points of distinction, the upheld ordinance merely subjected an objector to a five-dollar fine—about $150 today, much less than the individual-healthcare-mandate penalty before Congress zeroed it out.  More importantly, Jacobson predates the complex system of multi-tiered constitutional scrutiny that the U.S. Supreme Court devised under the due process clauses of the Fifth and Fourteenth Amendments in the 20th century. 

Justice Cypher

The SJC quoted Jacobson's logic in some detail "as an initial matter," but declined to give the Governor carte blanche, instead applying 20th-century due-process scrutiny.  The Court rejected procedural due process arguments because the emergency orders occasioned no individual adjudication, and rejected substantive due process because the generally applicable orders satisfied rational-basis review.  The selection of "essential" businesses was non-arbitrary and did not treat disparately any protected class, such as religious institutions.

Similarly with regard to the freedom of assembly, the Court regarded the emergency orders as valid time, place, and manner restrictions, appropriately narrowly tailored to a significant government interest in intermediate scrutiny, leaving open ample alternative channels of communication.

The case is Desrosiers v. Governor, No. SJC-12983 (Mass. Dec. 10, 2020).  Justice Elspeth B. Cypher authored the opinion for a unanimous Court.

Tort liability brakes U.S. policy shift on Sudan, marks crossroads of past, future where Africa meets Arabia

Street corner in the Arabian Market district of Khartoum
(RJ Peltz-Steele CC BY-NC-SA 4.0)

With economic sanctions exacting an intensified toll amid the pandemic and humanitarian crises fraying the peace at political borders, 40 million people in the East African Republic of Sudan may hope that long awaited normalization of relations with the United States will bolster stability and produce prosperity.  Meanwhile, in Washington, American tort claims have thrown a wrench into the diplomatic works.

Smaller Sudan after 2011 (LouisianaFan CC BY-SA 3.0)

Unending War

Before its 2011 division into north and south, Sudan was the largest country in Africa.  Its location is strategically important.  Sudan borders Libya and Egypt to the north, the lifeline of the Nile flowing into the latter.  The country's Red Sea coast positions Port Sudan opposite Jeddah and Mecca.  Chad and the Central African Republic (CAR) sit to the west, and Eritrea and Ethiopia to the east—where more than 40,000 Ethiopian refugees have fled conflict and now strain Sudan's thin resources.  Tumultuous northern regions of the Democratic Republic of the Congo (DRC) and Uganda, the latter yielding the Nile, lie in reach of South Sudan's capital, Juba, along with a disputed stretch of border with Kenya.

At last abandoning imperial ambition in 1953, the British left Sudan to the tempest of regime rise-and-fall that tragically characterized post-colonial power vacuum in Africa.  The country declared itself independent in 1956, but for a quarter century, no one form of government would stick.  An Islamic state brought about some political consistency in 1983, but plenty of ills, too: reigniting civil war between north and south, and paving the path of three decades' dictatorship and an abysmal human rights record under President Omar al-Bashir, from 1989 to 2019.

Part of embassy bombing memorial in Dar es Salaam

(RJ Peltz-Steele CC BY-NC-SA 4.0)

Relations with the United States went from bad to worse after Sudan backed Iraq in the 1990-91 Gulf War.  Osama bin Laden took up residence in Khartoum for five years at that time.  He built a favorable reputation for philanthropy by building legitimate businesses and financing infrastructure projects, such as the main highway, named for him, linking Khartoum to Port Sudan.  In 1993, the United States listed Sudan as a state sponsor of terrorism.  Under U.S. pressure, Sudan expelled bin Laden in 1996.  But Sudan was not spared blame when al-Qaeda bombed the U.S. embassies in Tanzania and Kenya in 1998, killing 224 people, including 12 U.S. citizens, and injuring thousands.  U.S. retaliation included a cruise-missile strike against a Khartoum chemical plant—unfortunately and very likely a target accused erroneously of complicity in chemical weapons manufacture.

Ironically, the bin Laden-orchestrated terror attacks of September 11, 2001, set Sudan and the United States on a winding road of fits and starts toward reconciliation.  U.S. President George W. Bush recognized the need for American allies on the East African doorstep to the Middle East.  U.S. policy leveraged austere sanctions to incentivize Sudanese cooperation in counter-terrorism, and the Bashir regime was supportive.

Sudan needed help, too.  The civil war between the Islamic government in Khartoum and the Sudan People's Liberation Army (SPLA), started in 1983, had never ended.  The exhausting conflict, which ultimately cost more than 2 million civilian lives, was dragging into one of the longest civil wars in modern history—besides that it was really a sequel to the never-quite-resolved first Sudanese civil war of 1955 to 1972, another tragically typical consequence, in part, of arbitrary colonial political borders.  Multi-national diplomatic interventions helped at last to draw the war to a close in 2005.  The peace agreement led to the secession of South Sudan in 2011, a development that seemed promising at the time, but since has seen the two states teetering ceaselessly on the brink of combustion.

A spellbinding sampling of the human toll of the civil war can be found in Dave Eggers's What Is the What: The Autobiography of Valentino Achak Deng (2006).  Spanning events from 1983 to 2005, the book is an artfully novelized memoir of a real child refugee among Sudan's "lost boys."

In 2017, the Obama Administration further loosened sanctions on Sudan.  A coup in 2019 sent Bashir from office the same way he came in, and in 2020, Sudan reconstituted itself as a secular state.  Al-Bashir, 76, is now in prison for corruption.  Marking a significant policy reversal, the government has signaled that it might be willing to turn Bashir over to the International Criminal Court for prosecution in connection with the genocide in Darfur during the second civil war.  In October, the Trump administration moved to clear the way for U.S. businesses to reenter Sudan, bargaining the country's de-listing as a state sponsor of terrorism in exchange for Sudanese recognition of Israel.  The administration was accused of too-little-too-late effort to bolster its foreign policy portfolio in the run-up to the 2020 election, but, at this point, the end means more than the motive.

Persistent Perseverance

In short order, Sudan has transformed from war-torn religious state, ruled by a dictator accused of crimes against humanity, to secular constitutional democracy, pivotal in Middle East peace and primed for western commercial investment.  In other words, Sudan might be in the midst of a remarkably rapid transition from paradigmatic problematic state to African success story.

View of Khartoum and the Nile from Corinthia observation level
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Long acquainted with the hardships of war and sanctions, the Sudanese have persevered, developing a resilient infrastructure and an enviable standard of living, especially relative to neighbors such as the CAR, the DRC, and Eritrea.  Sudanese teens wield smartphones in the dustiest of wayside villages.  Sudan has oil and refining capacity, though the division of natural resources between north and south remains a key cause of simmering contention.  The Khartoum skyline is dotted with structures infamously financed by deliberate defiance of sanctions.  Representative is the Corinthia Hotel: opened in 2008, the oval-shaped building is called "Gaddafi's egg," because Libya paid for its €80m construction.

Wayside fuel and rest area, Shendi-Atbara Road, Al Buqayr
(RJ Peltz-Steele CC BY-NC-SA 4.0)

At present, Sudan has one arm tied behind its back.  Trucks sit idle in fuel queues.  Western credit cards don't work; cash is king.  For better and worse, local products, mostly MENA-manufactured, substitute for the usual globalized glut of soda and snack options in the convenience stores, excepting the universe's inexplicably irreducible constant, Coca-Cola.

If sanctions go away, an energizing flow of auto parts, industrial equipment, transnational banking services, and development of telecommunication and physical infrastructure will irrigate Sudan's thirsty landscape.  The new constitutional government will be boosted to a threshold on prosperity unprecedented in the nation's history.  Already in June, the UK announced a £150m commitment to ease democratic transition and coronavirus impact by combating inflation and poverty.  Sudan unbound stands poised to achieve African development in a region that's long been starved of a win.

But There's a Hitch

Tort liability in U.S. courts is presently a sticking point in negotiations over normalization of U.S.-Sudanese relations and the entry of American enterprise in Sudan.  In 1996, Congress amended the Foreign Sovereign Immunities Act (FSIA) to allow civil lawsuits against foreign state actors for support of terrorism.  Survivors and families of victims of the 1998 embassy bombings sued Sudan in 2001.  The lawsuits floundered in the 20-aughts amid confusion over what plaintiffs, defendants, and causes of action Congress intended to authorize.  In 2008, Congress clarified the law on those questions and revived the earlier suits.

Subsequently, plaintiffs, numbering more than 700, won an award in federal court of $10.2bn, including $4.3bn in punitive damages.  The D.C. Circuit struck the punitive damages, doubting that Congress intended to authorize punitive recovery retroactively.  In May 2020, in Opati v. Republic of Sudan, the U.S. Supreme Court disagreed, vacating the striking of punitive damages and remanding for the lower courts to reconsider.  Litigation questions remain on remand.  The defense might yet challenge the constitutionality of the retroactive authorization of punitive damages, and it's not clear whether Congress intended foreign plaintiffs to be eligible for punitive awards.  Still, the massive compensatory award stands ripe for harvest.

Sen. Schumer in October (Senate Democrats CC BY 2.0)

All that litigation might, however, amount to naught if Congress acts again.  As a condition of the current agreement over sanctions and Israel, Sudan wants free of the Opati judgment.  In October, the State Department indicated willingness to negotiate immunity for Sudan against liability for past acts.  But that immunity would require another change of law, and Congress is not yet on board.

According to a report in Tuesday's New York Times, Sudan has offered a settlement of $335m, undoubtedly a more realistic number than multiple billions.  But Sudan has threatened to exit the agreement in whole if Congress doesn't authorize immunity by year's end.  Deadlocked legislators are trying to broker a compromise through a military spending bill in these first weeks of December.  To the displeasure of some in Congress, the working proposal would compensate U.S. citizens naturalized subsequently to the 1998 attacks less than those who were citizens at the time—working a de facto racial disparity.

Even if the 1998 claims can be resolved, a bigger hurdle looms in the prospect of blanket immunity-to-date for Sudan.  While Sudan did defend the embassy-bombing lawsuits on grounds of FSIA interpretation, it has not responded to the legal claims of, The Hill estimates, about 3,000 family members of September 11 victims who blame Sudan for bin Laden's five-year safe harbor there.  According to the New York Times story, those plaintiffs have the support of Senate leader Chuck Schumer (D-NY) to see that their claims are not extinguished.  It seems unlikely that a closely divided Congress would have any appetite to favor foreign tranquility over September 11 victims, no matter how much U.S. businesses are chomping at the bit to trade in Sudan.

Local heroes (with a smartphone) atop Jebel Barkal
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Last Week in Sudan

Here in the United States, if we hear about Sudan, it's likely to be in the context of civil war atrocities, the human rights abuses of the Bashir regime, or Middle East tensions.  Yet last week in Sudan, I saw little evidence of those worldly matters.  On the roads of Khartoum, in the markets, and in the countryside, I found only a gracious and warm people, a rich Nubian cultural tradition, and a stunning archaeological record of our shared human heritage.

Your interpid blogger at the Nuri Pyramids
(Steven Mueller CC BY-NC-SA 4.0)

Both of those views, the ugly and the beautiful, the grim and the genial, are Sudan.  We disregard the former at our hazard.  But to disregard the latter, we risk much more.

Sudan is the beating heart of the African continent.  Sudan will not forever be deterred by colonial legacy and the politics of aging superpowers.  However we manage to balance redress for past wrongs with a way forward, America will have to decide how to be a part of Sudan's future.  The only alternative will be to join the crumbling desert relics of Sudan's past. 

UPDATE, Dec. 13, 2020: See Conor Finnegan, Trump admin offered $700M to 9/11 victims to save Sudan deal, ABC News, Dec. 11, 2020.  UPDATE, Dec. 20, 2020: Sudan's Listing as Sponsor of Terrorism Ended by US, BBC, Dec. 14, 2020.

Grant group investigates curious reappearance of US President in Guinea-Bissau island 'ghost town'

From GMA newsletter, vol. XVI, no. 1, fall 2020, at 4, my photo at right.

Earlier this year, I wrote about the short, strange life of statues in Guinea-Bissau, and, in particular, the strange-upon-strange birth, disappearance, and re-creation of a statue of U.S. President Ulysses S. Grant in an abandoned park in the "ghost town" of Bolama Island.

In March, I reported that, since going missing mysteriously in 2007, the Grant statue "was recovered in pieces, and authorities ultimately restored him."

Not quite so.

Grant Monument Association (GMA) President Frank J. Scaturro (Twitter), by day an attorney and historian who is vice-president and senior counsel at the Judicial Crisis Network, noticed that my March photo of the statue did not look like the original.

Your intrepid blogger visits the cane rum distillery in Quinhámel,

Guinea-Bissau, in March. (RJ Peltz-Steele CC BY-NC-SA 4.0)

Scaturro and the GMA dug into the mystery of the statue's reappearance in the middle of the barren park that was once Guinea-Bissau's glorious "Praça Ulysses S. Grant."  (As to why there is a monument to a U.S. President at all on this West African island, see my March post.)  The pieces of the original statue never have been recovered.

A March 2018 photo shows a still empty pedestal.

(Helena Maria Pestana CC BY-SA 4.0)

The latest GMA newsletter (vol. XVI, no. 1, fall 2020) explains how the present likeness of Grant came to be in 2018:

This occurred at the initiative of then-Governor Quintino Rodrigues Bone. Approximately 100,000 CFA francs (roughly U.S. $180) were spent from the local government fund to obtain supplies for the work—a harness, cement, gravel, and colorless paint. With these materials, a local artist, Luizinho (Zinho) Ká, constructed a cement statue. He did not receive any compensation for his work.

....

According to the State Department, there is local interest in replacing the cement statue with a new bronze replica of the destroyed statue, but no funding to do so.

My dispatch from Guinea-Bissau came just before the cancel-culture toppling of monuments across the United States.  Sadly, the fall 2020 GMA newsletter also reported the vandalism and toppling of a Grant bust in San Francisco's Golden Gate Park in June.

Scaturro said, "It is ironic that a monument to Grant was restored in Guinea-Bissau soon before another was torn down in San Francisco. Americans who do not respect our heritage can learn a lesson from the people of Guinea-Bissau."

Anyone can join the New York-based Grant Monument Association or visit the General Grant National Memorial in New York (check for covid updates).  Scaturro wrote in a statement on Grant's civil rights record:

As the principal author of Union victory during the Civil War, Grant was the principal enforcer of the Emancipation Proclamation.  As president, he secured laws that enforced the recently ratified 13th and 14th Amendments and acted decisively to ensure the ratification of a 15th Amendment that would ban racial discrimination in voting. His achievements included five enforcement acts, the creation of the Justice Department, and the Civil Rights Act of 1875, which desegregated various modes of public accommodations and transportation. Grant repeatedly employed military intervention to enforce Reconstruction and crushed the 19th-century Ku Klux Klan. Among America’s top leaders, from military commanders to presidents, none has a more sweeping record on civil rights.

The GMA hosts periodic programs of interest to the public and historians.  On November 19, at 7 p.m. US EST, the GMA will host an online colloquy, "A discussion of the partnership between General Ulysses S. Grant & General William T. Sherman," featuring General David Petraeus and Ulysses S. Grant Association Executive Director John Marszalek.  GMA members receive registration information.

'Oh, the lawyers'

From A Late Show with Stephen Colbert, Nov. 12, 2020: Stephen thanked everyone who made 1,000 shows possible.

Poland scholars explain turmoil in streets over court decision nearly outlawing abortion; what next?

Protesters take to the streets in Kraków on October 25. (Silar CC BY-SA 4.0)

Social stability in Poland has been increasingly shaky since populist politics has threatened the independence of the judiciary in recent years.  Professor Leah Wortham wrote about the issue and kindly spoke to my Comparative Law class one year ago (before Zoom was cool).

Recently tensions have reached a boiling point.  In October, the nation's constitutional court outlawed nearly all abortions (Guardian).  Protestors have taken to the streets in the largest numbers since the fall of communism, The Guardian reported, confronting riot police and right-wing gangs.

Friend and colleague Elizabeth Zechenter, an attorney, visiting scholar at Emory College, and president of the Jagiellonian Law Society, writes: "Poland is in upheaval, after the Constitutional Tribunal restricted even further one of the most strict anti-abortion laws in Europe.  I and several other Polish women academics have gotten together, and we created a webinar, trying to offer an analysis, legal, cultural, sociological, etc."

The scholars' webinar is available free on YouTube.  Below the inset is information about the program.  Please spread the word.

Women Strikes In Poland: What is Happening, and Why?

Since the fateful decision of the Polish Constitutional Tribunal (Trybunał Konstytucyjny or TK) on October 22, 2020—further restricting one of the most restrictive anti-abortion laws in Europe—Poland saw massive, spontaneous demonstrations and civic protests in most cities, small and big, and even villages. Protests have been continuing since the day of TK’s decision and show no signs of abating.

To explain what is happening, we have assembled a panel of academics and lawyers to clarify the current legal situation, to analyze the scope of new anti-abortion restrictions, to explain whether this new law may be challenged under any of the EU laws applicable to Poland, and what might be political implications of doing that, as well as offer a preliminary cultural, linguistic, anthropological, and sociological analysis of the recent events.

Contents

0:00:00-0:03:17 Introduction: Bios of Speakers, Disclaimers

Legal Panel

0:03:17-0:26:00 Elizabeth M. Zechenter, J.D., Ph.D., "October 2020 Abortion Decision by the Constitutional Tribunal: Analysis and Legal Implications"

0:26:00-0:46:00 Agnieszka Kubal, Ph.D., "Human Rights Implication of the Decision by the Polish Constitutional Tribunal from 22 October 2020"

0:46:00-0:59:00 Agnieszka Gaertner, J.D., LLM, "Abortion Under EU Law"

Panel: Culture and Language of Protest

0:59:00-1:31:00 Katarzyna Zechenter, Ph.D., "Uses of Language by the Protesters, the Polish Catholic Church, and the Ruling Political Party 'Law and Justice' (PiS)"

Panel: Sociological and Anthropological

1:31:00-1:49:00 Joanna Regulska, Ph.D., "Struggle for Women's Rights in Poland"

1:49:00-2:12:00 Helena Chmielewska-Szlajfer, Ph.D., "Augmented Reality, Young Adults, and Civic Engagement"

Praise for the Webinar

"Wow! That was, without a doubt, one of the most informative, fascinating, engaging, and powerful webinars I have ever attended."

"All of us in your virtual audience 'voted with our feet' ... i.e., it is generally considered that 90 minutes is an audience's absolute maximum attention span for an online webinar, particularly since everyone these days is simply 'Zoomed-out' (over-Zoomed), in this era of COVID-19. But YOUR audience stayed with you for a marathon 2 hours and 45 minutes (and it felt like a sprint, not a marathon)!"

"A high tribute to you and your sister (not fellow!) panelists."

Disclaimers

The webinar was organized impromptu in response to numerous calls to analyze Poland's ongoing protests. The goal of the webinar was to provide a non-partisan review of the evolving situation and better understand the legal, cultural, and sociological underpinnings of the Constitutional Tribunal’s anti-abortion decision that resulted in such massive country-wide protests.

The opinions expressed in the seminar are those of the speakers alone who are not speaking as representatives of any institution; the main goal has been to advance understanding of the situation.

Given the urgency to offer at least a preliminary analysis (and in light of the continuously evolving situation), most speakers had less than 24 hours to prepare their remarks. We apologize for any imperfections.

FOIA scores among John Oliver's three favorite things

Of all the funny takes on an outraged voter's crashing of a Nevada election press conference, John Oliver's takes top honors for featuring government transparency through the Freedom of Information Act.

 

See the full segment on Election Results 2020 on HBO's Last Week Tonight with John Oliver, Nov. 8, 2020.

Laws suspending driver licenses for fines need reform

Spencer K. Schneider, a 3L at UMass Law and teaching assistant in my Torts I-II classes, has authored an article for the National Lawyers Guild Review.  He examines state systems that suspend driver licenses upon unpaid fines and their perversely circular detrimental impact.  He concludes that constitutional challenges to the systems don't hold water, but that they should be reformed as a matter of sound legislative policy.  Here is the abstract.

Forty-three states have, or previously had, some version of a driver’s license suspension program. These programs are shown to have disastrous financial effects on the lives of those who cannot afford the fines inherent in them. Challenges to such license suspension schemes have been brought throughout the United States but have been largely unsuccessful. Where relief ultimately may be found is in state legislatures or city governments. When those bodies discover that, although these programs are in fact valid and constitutional, many of them have such detrimental and long-term impacts on so many citizens, they ultimately result in more harm than good. This realization has led many states to experiment with changes to, or repeals of, their driver’s license suspension programs with varying success. However, many states still rely on the fines levied by these programs and there is a legitimate argument that the programs are imposed to keep dangerous drivers off the street. Ultimately, this is an issue that arose from legislation and, despite finding its way into the court system, must be solved with legislation.

The article is Spencer K. Schneider, The Wheels on the Bus: The Statutory Schemes that Turn Traffic Tickets into Financial Crises, 77:2 Nat'l Law. Guild Rev. 81 (Summer/Fall 2020).

All politics is local

This Ayrshire Daily News, Scotland, headline refers to the Trump Turnberry Golf Courses.  The headline caught the attention of BBC's Andrew Marr Show and was shared with me by BBC viewer and friend of the blog, Siobhan Lavery.

Trump Golf operates two properties in Scotland and one in Ireland.  The club at Aberdeen lost a fight against a nearby windfarm in the UK Supreme Court in 2015.  The New York Times Trump tax revelation caused Business Insider to mark the clubs among Trump's "most failed businesses," while seeming over-valuation of the clubs figures in New York prosecutors' ongoing investigations of Trump financial disclosures (Politico).  The Scotland properties also garnered unwanted news coverage this year for their receipt of coronavirus government bailouts (Guardian).  Nevertheless, Aberdeen recently authorized construction of a second club (BoingBoing).

Singers revel in federal judges' lifetime appointments

I just discovered The Bar & Grill Singers, an Austin, Texas-based musical revue of attorneys.  My favorite song is "Appointed Forever."

There's more at the group's YouTube channel and on the group's CD, Grilling Me Softly (iTunes, Amazon).

Big thanks to Sai, president of Fiat Fiendum, who first, via FOI-L, pointed me to the also excellent "I'm Billing Time."

Depp defamation suits in US, UK see London setback

Heard and Depp in 2015 (GabboT CC BY-SA 2.0)

Johnny Depp is fighting accusations of spousal abuse in defamation suits in England and the United States.  Apparently, I can't be disillusioned often enough about actors I like. 

At the excellent INFORRM blog, Kirsten Sjøvoll of Matrix Chambers (here) and University of Essex Law Lecturer Alexandros Antoniou (here) have the latest about Depp's suit in London, in which the defense of substantial truth has been asserted successfully.

Sjøvoll explained, "In this case, it was also not necessary for the Defendants to prove that each and every incident or allegation of domestic [violence] relied upon took place. It was enough for them to establish that it was substantially true that Mr Depp had been violent towards his ex-wife during the course of their marriage."

Outside the courtroom, Sjøvoll observed, "an army of Depp fans" have stated "strong views about the evidence via Twitter," including ridicule of Justice Andrew Nicol.  The case meanwhile has generated ample lurid detail in entertainment news about Depp's rocky relationship with ex-wife Amber Heard.

Post op-ed,
from Va. complaint

Sjøvoll and Antoniou wrote that truth was a risky defense strategy for defendant News Group Newspapers (NGN), publisher of The Sun.  When a defendant asserts truth under the 2013 UK Defamation Act, the defendant assumes the burden of proof by preponderance ("balance of probabilities").  Sjøvoll wrote:

A libel defendant who seeks to establish that the words complained of are substantially true takes a considerable risk that, if unsuccessful, the damages they may be liable for will be significantly increased. The costs of a trial in which the truth of the allegations are in issue are also likely to be much higher. Indeed, in the Depp case, it was notable that both parties instructed leading criminal counsel to conduct the cross examination of the key witnesses in addition to media law specialists. 

Depp has vowed to appeal, and Sjøvoll and Antoniou noted that he also is pursuing related defamation litigation in the United States.  Depp is suing Heard in Fairfax Circuit Court, Virginia, over a #MeToo op-ed she published in The Washington Post in 2018.  The op-ed did not refer to Depp by name, but Heard wrote about how she became "a public figure representing domestic abuse" at the time of her divorce from Depp.  The case is steaming through contentious discovery with a flurry of foreign subpoenas.

The case in London is Depp v. News Group Newspapers Ltd., [2020] EWHC 2911 (QB), Nov. 2, 2020.  The case in Virginia is Depp v. Heard, No. CL-2019-2911 (Va. Cir. Ct. Fairfax County filed Mar. 1, 2019).  HT @ Private Law Theory.