Media want anti-SLAPP security while ignoring real harm, and nobody wants to talk about tort dysfunction

Christian Dorn from Pixabay

On April 7, one of my favorite podcasts, WNYC's On The Media (OTM), ran a story, not its first, on anti-SLAPP laws: statutes in the states (not yet federal) designed to combat "strategic lawsuits against public participation."

I've written about anti-SLAPP many times.  I'm not a fan of the statutes.  The OTM piece is good and important, but it tells only one side of the anti-SLAPP story.  That's a common, and forgivable, shortcoming in mass media coverage of itself.

Why I Care, and You Should Too

I've been a media advocate since I was hooked by my first high school journalism class in the 1980s (hat tip at Mrs. McConnell).  I've been a media defense lawyer and a defamation plaintiff, besides a classroom teacher of media law and the First Amendment.  My hang-up is justice, or the remediation of injustice (yes, I'm a J), and there's plenty of both in the way our news media work in the shadow cast by the shield of the First Amendment.  Advocating for the devil in my classroom, I was a critic of the Sullivan/Gertz actual malice standard decades before it became fashionable, or even socially acceptable in academic circles, to question the supposed sine qua non of free speech.

So when the media defense bar teamed up with state legislators to start piling on anti-SLAPP statutes as another death-blow weapon in the scorched-earth media defense arsenal in the late 1990s, I was skeptical from the get-go.  Upon the siren song of free speech absolutism, now decades on, Americans have fallen into the lazy habit of denying access to our courts to would-be plaintiffs who are genuinely victimized.  As a scholarly observer of tort law, I can tell you, bad things happen when people are systematically disenfranchised from justice.  What's worse, as empirical research has consistently told us for decades, and I confirm from my own experience, the ordinary defamation plaintiff is not the money-grubbing opportunist that tort reformers (or distorters) wish us to imagine; rather, what a defamation plaintiff usually wants, first and foremost, is the truth.  News media defendants might remember the truth from journalism school.

How did we get to a point that when a plaintiff and defendant want the same thing, it's still a zero-sum game?  If with the best of intentions, the U.S. Supreme Court in the civil rights era so distorted the state landscape of defamation law that media defendants lost all interest in compromise, even if the simple compromise is to correct the record and speak the truth.  Sullivan biographer Anthony Lewis recognized this problem in the penultimate chapter of his otherwise-paean to the case in 1992.  And this is why the 1993 Uniform Correction or Clarification of Defamation Act proved a profound failure.  The uniform law proposed using a First Amendment-compliant carrot rather than a constitutionally prohibited stick to coax media defendants to hear complainants out before facing off in court.  But, media defendants implicitly pleaded in response, why should we listen when we always win?

Anti-SLAPP laws are perfect for the thing they're perfect for: To shut down an obvious attempt to abuse the legal process with a sham claim when the plaintiff's true motivation is to harass or silence a defendant engaged in constitutionally protected speech or petitioning, especially when it's whistle-blowing.  "I know it when I see it" is why a South African judge recently allowed anti-SLAPP as an "abuse of process" defense even in the absence of a statute, shutting down a mining company's implausible suit against environmentalists.  Meanwhile, the American anti-SLAPP statute, the darling offspring of mass media corporate conglomerates and financially beholden legislators, tears through court dockets with no regard for the balance of power between the parties.

As a result, sometimes, like the infinite monkey who stumbles onto Hamlet, anti-SLAPP works.  Other times, David is summarily shut out of court at the behest of Goliath.  The dirty secret of the media defense bar is that it's pulling for the latter scenario more often than the former, because Davids pose a much greater threat to the corporate bottom line than the occasional, over-hyped monkey.

Squirrel!  SLAPPs Aren't the Problem

SLAPP suits only work because of a bigger dysfunction in tort law:  Transaction costs are way too high.  Lawyers and litigation cost too much.  (Law school costs too much, but that's another rabbit hole.)  Our civil dispute resolution system, in contrast with those of other countries, so prizes precision as to draw out civil proceedings to absurd expectations of time, energy, heartache, and money.  Too often, at the end of a litigation, both exhausted parties are net losers, and only the lawyers, on both sides, come out ahead.  The tort system is supposed to engender social norms and deter anti-social conduct through its compensation awards, not its overhead costs.  We've so contorted torts, especially when accounting for suits that are never brought, that the norm-setting and deterrent effects of transaction costs dwarf the impact of outcomes.

Anti-SLAPP tries to solve the problem of runaway transaction costs by summarily dismissing claims on the merits when a plaintiff cannot prove the case at the time of filing, usually without the benefit of discovery.  The game is rigged, because the evidence the plaintiff needs is in the possession of the defense.  So plaintiff's unlikely path to proof, already mined with common law and constitutional obstacles to press the scale down on the defense side, is well obliterated by anti-SLAPP. We could use this "solution" of summary dismissal across the board to cut back on tort litigation.  But people wouldn't stand for it in conventional personal injury, because then we'd be overrun with uncompensated and visibly afflicted plaintiffs, and the injustice would be undeniable.

If we dared have the creativity to experiment with more effective dispute resolution mechanisms as alternatives to tort litigation, we might best start with defamation cases, in which we know what plaintiffs want, and it's not money.  Yet here we are, hamstrung by the Supreme Court, disenfranchised by defense lobbyists, and forced to swallow the dangerous myth that we can have free speech only if we stand aside and let mass media deliver misinformation with impunity.

The Case of the Charity Exposé
and the Lamentations of the Media Defense Bar

In the April segment, OTM host and media veteran Bob Garfield interviewed Victoria Baranetsky, general counsel for the 501(c)(3) nonprofit Center for Investigative Reporting (CIR), about a lawsuit by also-501(c)(3) nonprofit Planet Aid against CIR.  The lawsuit arose from a 2016 series on the CIR Reveal platform, in which CIR alleged abuse of charitable status by the organization through, inter alia, improper diversion of donor funds.  A California federal judge dismissed the 2018 complaint in March 2021, and Planet Aid, which is appealing, and CIR have very different takes on what that dismissal meant.  Planet Aid emphasizes "46 statements" in the reporting that the court found false, notwithstanding anti-SLAPP dismissal, while CIR emphasizes "several million dollars" of legal costs, "vastly exceed[ing] ... insurance coverage" and impossible to pay without pro bono aid.

CIR is not an outfit that publishes without doing its homework.  So without opining on the merits of the lawsuit, I admit, my gut allegiance in the case tends to CIR.  And I think it's OK that OTM interviewed only Baranetsky.  "Balance" as a journalistic value too often feeds the "talking heads" phenomenon we know from the disintegration of television broadcast journalism.  OTM's report was about the toll of litigation on journalism, not the merits of the CIR stories.  Looking, then, at the OTM story, I find that a side was missing, but it wasn't Planet Aid's.  Missing is reasoned resistance to the anti-SLAPP craze.  Here, then, are my reflections on five media lamentations in the OTM story about anti-SLAPP.

Lamentation Over Forum Shopping

(1) Baranetsky lamented that Planet Aid was permitted to sue in Maryland, where the law was advantageous to a plaintiff, and CIR was forced to incur major costs to move the case to California, where anti-SLAPP law is more protective.  Federal anti-SLAPP would fix this problem.

Forum shopping is a problem, but not specially a media defense problem.  Barring defamation victims from redress equally across the states isn't better than barring them one state at a time; i.e., 50 wrongs don't make a right.  Rather, everything that's wrong with anti-SLAPP would be multiplied by a federal statute.  Plaintiff's choice of forum does aggravate costs, and that allows forum shopping to be used improperly as a SLAPP tool.  The answer is to change how we manage forum selection in federal civil procedure to stop the externalization of costs to defendants and to compel professionalism in the plaintiffs' bar—not to put a thumb on the scale of merits in lawsuits, even SLAPPs.

Moreover, in overriding state court discretion to hear defamation actions on the merits, a federal anti-SLAPP statute would double down on the entrenched Sullivan/Gertz paralysis of the tort system that's precluding the development of innovative alternatives.  Our problem in defamation law is not lack of uniformity in the states, but precisely the opposite, lack of diversity that would generate new approaches.

Lamentation Over the Burdens of Discovery

(2) Baranetsky lamented that California federal courts have allowed limited discovery before dismissing cases under California anti-SLAPP law, thereby upping the costs of money and time for media defendants and mitigating the efficacy of anti-SLAPP. 

Notwithstanding the present debate in the Courts of Appeal over whether state anti-SLAPP laws can displace federal court process, anti-SLAPP puts defamation plaintiffs in a no-win scenario, especially when the plaintiff is a public figure.  Under Sullivan/Gertz, a public-figure plaintiff can prevail only by proving subjective knowledge or intent on the part of the defendant to publish falsity.  Subjective culpability lies only in the mind of the defendant.  Without precogs, we prove subjective culpability with circumstantial evidence.  When the defendant is a mass media organization, that evidence is in the possession of the defendant.  Even in a negligence case with a private-figure plaintiff, it is impossible to probe the culpability of the defendant when the plaintiff has no knowledge of the defendant's internal process, even the identity of a staff editorial writer, for example.

Yet along comes anti-SLAPP to demand (in the usual formulation) that a plaintiff prove likelihood of success on the merits with evidence that the plaintiff could not possibly possess.  Win-win for the media defense, lose-lose for access to justice.  Baranetsky bemoaned the costs, tangible and intangible, of discovery, especially on a nonprofit media outlet.  With that complaint, I am sympathetic.  Again, though, the answer is to change the process to control transaction costs.  The long reach of American discovery is globally infamous and socially problematic in ways well beyond the woes of media defendants.

Baranetsky raised the further point that the permitted discovery was one-sided, so CIR was not able to use discovery to bolster what might be a winning affirmative defense, such as truth.  I take this point, too.  I have some concern about the potential for a media organization—imagine not CIR, but a more partisan and unscrupulous outfit—to misuse discovery to further ill intentions.  But courts can and should control the scope of discovery with appropriate protective orders.   

Lamentation Over Interment by Paper

(3) Baranetsky lamented that the Planet Aid "complaint was about 66 pages, almost 70 pages long.... [B]ecause our reporters did such extensive reporting, published on the radio, published online, there were a lot of remarks to pull in from a really substantive investigation. The complaint here was padded with all of those bells and whistles."  That again upped media defense costs and slowed down the anti-SLAPP process.  

I don't doubt that the complaint was longer than it needed to be.  Plaintiffs anticipating high-profile litigation—by the way, including agenda-seeking litigators from both left and right, as well as state attorneys general—routinely plead "to the media" and to "the court of public opinion," rather than to the court of law.  Excessive pleading runs up defense costs, as well as court time, which is not fair to litigants or taxpayers.  Again, the answer lies in bar and bench control of process and professionalism, not in summary dismissal on the merits.

More importantly, to some extent, a defamation plaintiff's claim in a case over a series of reports must be lengthy, for a very reason Baranetsky said, and not because the plaintiff wants it that way.  It's not "padding," "bells," or "whistles."  Defamation plaintiffs are compelled by rules of pleading to commit a perverse self-injury by republishing the defamation of which they complain.  Thereafter, mass media entities are permitted to restate the defamation as a fair report of a public record, almost with impunity.  As a result, often, the defamation is amplified, and the plaintiff's suffering is vastly compounded.  Even if the plaintiff wins the case, compensation for this added injury is disallowed, and no media entity can ever be compelled to correct or update the record by reporting that the plaintiff later prevailed upon proof of falsity.

In my own plaintiff's case, precisely this happened.  Among countless national outlets, The New York Times reported the defamatory allegations I republished in the complaint, but never covered the case again, despite my entreaties to the reporter and ombudsperson.  To this day, I overhear innuendo based on the Times story with no reference to my later exoneration, which was reported in only one excellent-but-niche publication.  In my experience with would-be defamation plaintiffs, I have seen that this risk alone prevents a victim from seeking redress as often as not.  Once again, we could answer this problem by reforming pleading in defamation, rethinking what "fair report" means in the digital age, and experimenting with dispute resolution, if only Sullivan/Gertz left the defense bar with the slightest incentive to participate.

Lamentation Over Litigiousness

(4) In his introduction to the case, Garfield said, "Without offering evidence to rebut the allegations, the charity promptly sued the news organization for libel."

OTM itself walked back this characterization of Planet Aid's lawsuit as a blindside attack.  An OTM editor's note to the story posted online added that, according to a PR firm representing Planet Aid, the organization "reached out to [CIR] prior to filing its lawsuit asking for a retraction and correction."

I don't know whether Planet Aid's version is right, or OTM's, or maybe the demand letter got lost in the mail.  As I've indicated, I'm not rushing to sign up Planet Aid as my poster child for the Anti-SLAPP Resistance.  But OTM's post hoc characterization of events is, to my experience, typical of media-defense-bar spin.  In reality, rare in the extreme is the case that there is not at least a demand letter and response.

In my own plaintiff's case, I filed suit as late as possible, on the eve of the expiration of the statute of limitations.  I sought to diffuse the disagreement through every possible avenue, both vis-à-vis my defendants and through negotiation with a third party.  Yet when my case turned up years later in a book by an academic colleague, Amy Gajda, she used my case to support the book's thesis that alternative dispute resolution mechanisms on university campuses would help to avert lawsuits by litigious academic plaintiffs like me.  I don't dispute (or support) that thesis in the abstract, but my case did not support it.  Gajda suggested that I rushed to sue, without probing alternatives, which was utterly false.  In fact, it was the refusal of my potential defendants to come to the table—the very problem of Sullivan/Gertz inhibition of dispute resolution—that forced me into a lawsuit as an undesired last resort.

Gajda, by the way, is herself an award-winning journalist and scholar of media law.  Yet she readily contorted the procedural facts of my case to fit her expectations without ever asking me what happened.  We know each other, and I'm not hard to find.  If a top-flight journalist can be so sloppy with the facts in a case about a professional colleague, and I have to lump it, what chance does a lay soul in private life have to correct the record on something that really matters, as against a professional media outlet with a partisan agenda and lawyers on retainer?

How simple it is to make assumptions and feed the tort reformer's myth that greedy plaintiffs eagerly sue at the drop of a hat.  Yet no one properly counseled by an experienced attorney chooses a lawsuit as a first course of redress.  To the contrary, defamation victims, especially in matters as difficult to win as media torts, typically cannot find an attorney willing to take the case at the opportunity cost of sure-thing personal-injury money, and certainly not on contingency.  Plaintiffs wind up not suing for that or many other reasons unrelated to their real losses.  Other reasons include the risk, under anti-SLAPP fee-shifting, of having to pay attorneys' fees to a corporate media defendant's high-priced lawyers—not because the plaintiff wasn't defamed, but because the plaintiff could not meet the enhanced burdens to overcome a First Amendment defense.  Other reasons also include the stigma associated with being a plaintiff in America, a stigma perpetrated by corporate advocates of tort reform and conveniently perpetuated by would-rather-not-be defendants in the media business.

Lamentation Over the Price of Free Speech

(5) Baranetsky opined, "We have to be wary of defamation law being used by public figures and politicians and wielded in ways that can be used retributively. At the same time, make sure that lies aren't being spread.  The hope is that anti-SLAPP laws are really, they're the precise scalpel that's supposed to sharply and acutely figure out which falls on which side of the line."

That's a profound misapprehension of anti-SLAPP laws.  There is nothing about anti-SLAPP that is precise or acute.  Very much to the contrary, anti-SLAPP is designed to be a blunt instrument that stomps out litigation before it can get started, looking scarcely at the quantum of evidence on the merits and rounding down in favor of the defense.  Anti-SLAPP operates upon the very theory of Sullivan/Gertz, which is that the price of free speech is the prophylactic annulment of meritorious claims and the tolerance of misinformation.  The theory of anti-SLAPP is that we don't want to know the truth, and would rather abide falsity, when the cost of disentangling truth and falsity is inconveniently excessive.

Baranetsky's take on anti-SLAPP is ironic in the extreme.  The Sullivan/Gertz constitutionalization of state tort law is based on the age-old argumentative hypothesis of moral philosophy that "the truth will out" in the marketplace of ideas, so the courts ought not intervene to abate falsity.  That proposition has been vigorously refuted by scholars as demonstrably erroneous.  And CIR's very motto, splashed on a home page banner, is: "The truth will not reveal itself."

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I've identified areas of tort law that need reform—abuse of forum selection, excessively broad discovery, permissiveness of fact pleading—and areas of defamation law in particular that need reform, procedural and substantive—pleading requirements, fair report protection, culpability and proof standards, plaintiff access to representation, and availability of alternative dispute resolution—but are paralyzed by federal capture of common law and media defense intransigence.

Let me not understate my appreciation for OTM, WNYC, CIR, and all kinds of nonprofit journalistic enterprises.  I am grateful that CIR did the reporting that it did on Planet Aid, and for the reporting that OTM does all the time on threats to public interest journalism.  I am fearful of a world in which that reporting does not happen.  

Nevertheless, I object to a legal standard that presumes news media have the corner market on truth.  If our system of civil dispute resolution is broken, and I think it is, then we need to fix it.  Anti-SLAPP is at best a patch to paper over unsightly symptoms of our dysfunction, and, too often, it does so at the expense of genuine victims.  Our willingness to ignore injury says more about the sorry state of our democratic character than does our blind fealty to an unbridled press.

At the annual meeting earlier this year of the Communications Law Forum of the American Bar Association, a famously media defense-identifying conference, I heard whispered for the first time some cautious and reluctant concern that media defendants holding all the cards in tort litigation might—wait, is this a secure channel?—might not necessarily be the best strategy to ensure the freedom of speech and to protect the flow of truthful information in America, especially in the digital age.

Now where have I heard that before?

Dear email readers: Please subscribe to Atom feed

Dear reader, if you read The Savory Tort via email subscription, then, first, thank you; and, second, regrettably, a small change will be necessary for you to continue your generous devotion of time to this blog.

Google will terminate its Feedburner application in July 2021.  Feedburner is Blogger's email delivery service.

There are many online tools to manage your blog reading.  For those of us who still depend on email in our work, email remains our favorite way to learn about new blog postings.  It's a simple matter to replace the function of Feedburner, which is, essentially, to convert an RSS or Atom feed to email.  I'll be doing this for the blogs that I follow.

My favorite and an easy-to-use tool to get this done is Blogtrottr.  This tool is recommended by librarians at the University of Missouri.  Blogtrottr's ad-supported plan is free.

All you need to do is enter the URL of a blog's RSS or Atom feed and your email address into the boxes on Blogtrottr's home page, where it looks like this:

Even if you don't know a blog's RSS or Atom address, Blogtrottr usually can detect it, if there is one, if you enter the URL of the blog's home page (for example, http://www.thesavorytort.com/).  Blogtrottr lets you decide whether you want to receive real-time notifications or periodic digests.  The system will send you an email to confirm your subscription choice.  Of course, you can unsubscribe from a blog anytime.

The Atom feed URL for The Savory Tort is

http://www.thesavorytort.com/feeds/posts/default

You can highlight and copy, or right-click and copy that link.  The link is always available in the right column under "Subscribe" / "Posts" / "Atom."

From soccer pitch to memoir, and now to White House, Rapinoe shines in USWNT equal pay crusade

Rapinoe speaks at the White House (from White House video).

Today a federal district court in California is expected to approve a partial settlement over working conditions in the equal pay battle between the U.S. Women's National Team and U.S. Soccer.  The settlement leaves the central issue of equal pay in play in the case.

As Tokyo seeks "to blunt" its fourth wave of coronavirus, public support and flat-out feasibility fade for pulling off the 2020 Olympic Games even in the summer of 2021.  An Olympic omission will downplay the news of late March that the U.S. Men's National Team failed to qualify for the Olympics upon a loss to Honduras.  Meanwhile the U.S. Women's National Team (USWNT) has been training up for another record-shattering international appearance.

Rapinoe, 2019 (Jamie Smed CC BY 2.0)

The USWNT has not fared as well in court as on the pitch.  On the equal-pay front, the USWNT complainants suffered a major setback in a trial court decision in May 2020.  I wrote then that the court's conclusion was defensible on the law, if arguable on the rationale and tormenting for its rank unfairness.  The complainants plan to appeal.

One is left to marvel at U.S. Soccer's shameless persistence of what I can only imagine is a cold commitment to the bottom line.  At some point, the bad PR for the sport in America must become too costly even in the commercial calculation.  And with the winds having shifted in Washington, the women wisely have opened up other fronts in the war.

A soccer legend in her own time and a hero of mine, USWNT captain Megan Rapinoe has been on a tear lately on the PR-and-lobbying circuit.  On March 24, she joined the J'Bidens at the White House to commemorate "Equal Pay Day."

The White House visit had added significance because Rapinoe feuded with Donald Trump while he was on office—see commentary in 2019 by Sue Bird, Rapinoe's then girlfriend, now betrothed—and Rapinoe said she would not go to the White House even if invited.  In March, President Joe Biden ordered resuscitation of the White House Gender Policy Council, and Rapinoe gave the White House visit a positive review.  Newsweek observed that Rapinoe received a White House invite before Sen. Mitch McConnell.

Here is Rapinoe's statement at the White House.  Watch the whole event at YouTube; Rapinoe's four minutes followed statements by USWNT teammate Midge Purce and First Lady Jill Biden.  

Rapinoe got her money's worth out of her ticket to Washington, because she also testified before the House Committee on Oversight and Reform, which was "examining the long-term economic impacts of gender inequality."  Her affirmative statement, below, ran only about two and a half minutes.  With experts representing NGOs also testifying, Rapinoe participated in the questions and answers afterward; the full-length video of the committee hearing is posted online (image from House video).

Rapinoe wound up her testimony with the USWNT rallying cry, "LFG."  She has since remained ready to fight when the situation calls for it, recently, as Comic Sands put it, "eviscerat[ing an] NBA star who criticized female athletes 'complaining' about pay gap."  An HBO Max-CNN Films documentary on the USWNT, titled "LFG" (teaser), is set for release later this year.

All the while, Rapinoe has let no artificial turf grow under her feet.  At the day job on Saturday, she scored for the USWNT to pull out a draw against Sweden and preserve the women's undefeated streak.

Rapinoe published a memoir, One Life, in the fall.

LFG.

Child labor still plagues chocolate supply chain in West Africa, despite decade of distressing documentaries

From our dining room table, a chocolate bunny left over from the weekend is staring me down.  Two things are keeping me from biting off its smug head.  First, I just got back from a run of only a couple miles, and I feel like I'm breathing through a straw.

Second, earlier today, I watched Chocolate's Heart of Darkness, a study of child labor in the chocolate supply chain.  The 42-minute piece is free on YouTube, posted September 2020.

This English version is credited to German public broadcaster Deutsche Welle (DW), though the film originated with French independent documentary firm Premieres Lignes in 2019.  French journalist and filmmaker Paul Moreira directed.  On YouTube, Chocolate's Heart of Darkness appears as "Bitter Chocolate," which risks confusion, because that is the title of an equally disturbing but different project on the same subject: s2e05 of the Netflix documentary series, Rotten, directed by Abigail Harper and also released in 2019.

Both of these Bitter works update, with precious little progress to report, the sorry state of affairs captured in the 2010 documentary The Dark Side of Chocolate, which was co-directed by Danish journalist Miki Mistrati and American U. Roberto Romano, a photojournalist and human rights activist who passed away in 2013.

Cocoa I photographed in Ghana in 2020.
The DW film depicts industry reliance with some success
in certification tracking in Ghana, but not in Côte d'Ivoire.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

In the last decade, I've refrained from recommending the 2010 docko to students or colleagues, because it's one of those films in which the makers' agenda so powerfully muscles in on the narrative that the viewer is left with reservations over objectivity.  But now, with two more projects in the same vein and all compasses pointing in the same direction, I think it's fair to discount nuanced indications of bias and say that Big Chocolate has a real mess on its hands.

Litigation against American agri-giant Cargill, a key broker in the global chocolate trade, and against Swiss-based multinational Nestlé, over child labor—practically, slavery—sits presently in the U.S. Supreme Court (Cargill, Nestlé at SCOTUSblog).  A decision, due any day, seems likely to kick the claims out for lack of U.S. jurisdiction under the alien tort statute, however much some Justices might have been troubled by what they heard in oral argument in December.

Even if the suits were to proceed in U.S. courts, or in any courts, Chocolate's Heart of Darkness gives a flavor of how hard the claims would be to prosecute.  Abusive child labor is so entrenched in West African forests, and nations such as Côte d'Ivoire so utterly incapable of establishing rule of law in these remote places, that it is scarcely imaginable that cocoa could be harvested any other way.  This is to say nothing of rampant deforestation to meet demand.

The film shows that the certification and tracking mechanisms set up with, let's give the benefit of the doubt, the best of intentions by the corporations to make good on sustainability pledges are so riddled with corruption as to be farcical.  It strains credulity to suppose that transnational companies do not know the reality.  But knowledge is not necessarily culpability.  And this is hardly the only supply chain that leads from Western fancy to catastrophic human toll in the developing world.

I don't think that my chocolate bunny is going to last the week.  But it's going to make me sick in more ways than one.

Video series sharpens writing for law school seminars just in time for research paper deadlines

I've posted at YouTube a video series aimed at helping law students sharpen their scholarly writing.

Eschewing production quality in favor of illustrative screen sharing, the series presents a range of self-assessment strategies culled from my decades as a teacher and legal writer, with a deep nod to my schooling and experience in journalism.  The series, "Better Law School Writing," is designed to help law students in seminars, or anyone attempting expository work, to step outside their writing and view it critically.

The four videos attack the writing project at four levels of abstraction, from (1) "the big picture," focusing on introduction and purpose (47 mins.), to (2) top-level organization (22 mins.), (3) paragraph-level assessment (19 mins.), and (4) sentence-level assessment (37 mins.).  I put some of my own work on the pyre for analysis, as well as draft work submitted by students in past years.  The lessons are not inter-dependent, so a writer might find any one useful to strengthen skills in an area of concern.

Facebook shields records from Mass. AG inquiry

The Massachusetts Supreme Judicial Court today ruled on efforts by Facebook to resist disclosures arising from an internal investigation into application development.  The disclosures are sought by the commonwealth attorney general, which is investigating allegations of consumer data misuse.

AG Healey
(Zgreenblatt CC BY-SA 3.0)

The court's ruling is mixed, but, overall, Facebook gained ground.  The court allowed Facebook more latitude than it won in the lower court to resist disclosure on grounds of attorney work product.  On remand, the lower court will have to scrutinize the records to separate attorney opinion, which is protected, from mere facts, which are not.  The SJC agreed with the lower court that one set of records was within attorney-client privilege, and Facebook will have to produce a privilege log.

Facebook seems to be taking seriously the investigation by the office of Attorney General Maura Healey, and it should.  The company hired fixer-firm Gibson Dunn to handle its internal investigation and is represented by Wilmer Hale in the Massachusetts investigation.  Massachusetts data protection regulation is antiquated relative to the latest generation of regulations in Europe and California, but the law has been on the books for more than a decade.  The AG was represented in the SJC by attorney Sara Cable, whose appointment last year as the office's first chief of data privacy and security signaled an intent to ramp up data protection.  Massachusetts consumer protection law, "93A," the basis of the AG investigation here, is famously expansive, often displacing common law tort in private enforcement and affording generous damages.

Justice Scott Kafker wrote the lengthy opinion for the court in Attorney General v. Facebook, No. SJC-12946 (Mass. Mar. 24, 2021).  Justice Kafker is on a tear of late, having written the court's opinion in a sea change in tort law in late February and the court's unanimous ruling against Gordon College in a First Amendment religious freedom case on March 5.

EU sustainability reg reaches companies in U.S., world

A sustainability regulation from the EU promises to be the next big compliance hurdle deployed on the continent to affect transnational businesses based in the United States and around the world.

The regulation is the subject of a lecture today by my friend and co-author Gaspar Kot in the 2020-21 lecture series, "Contemporary Challenges in Global and American Law," from the Faculty of Law and Administration at Jagiellonian University (JU) in Kraków, Poland, and the Columbus School of Law at the Catholic University of America (CUA) in Washington, D.C.

Gaspar Kot

Kot speaks today on "Sustainable Investment – The New Heart of EU Financial Market Regulation."  His lecture will be published in the CUA YouTube playlist [now available & below].  Here is the abstract.

With increasing concern for global climate change and following the 2015 Paris Agreement obligations, the European Union adopted the Regulation [2019/2088] on Sustainability-Related Disclosures in the Financial Services Sector (SFDR), which took effect beginning March 10, 2021. The SFDR, along with draft regulatory technical standards and the EU’s Taxonomy Regulation, require financial market participants to incorporate sustainability considerations in their governance frameworks, as well as to prepare disclosures and reporting to investors about environmental, social, and governance factors. The EU sustainable investment regime reaches US entities offering investment funds and financial services to European clients. The EU General Data Protection Regulation sent shock waves across the Atlantic and required many US lawyers and businesses quickly to become expert in GDPR requirements. The EU’s ESG requirements are likely to have a similar dramatic border-crossing impact.

Kot is a markets, products, and structuring lawyer for UBS, the Swiss investment bank and financial services company with worldwide offices including more than 5,000 employees in Poland. He heads the asset management stream of the legal department in the UBS Kraków office.

When I last wrote about the winter-spring line-up for the lecture series, the following spring offerings were yet to be announced.  It's not too late now to sign up for four more programs.

• April 14 – Katarzyna Wolska-Wrona, "Approaches to Combating Gender-Based Violence: The Council of Europe Istanbul Convention and a US Perspective"
• April 27 – Mary Graw Leary, "#MeToo and #Black Lives Matter: Conflicting Objectives or Opportunities for Advancement of Shared Priorities?"
• May 12 – Regina T. Jefferson, "Examining United States Retirement Savings Policy through the Lens of International Human Rights Principles"
• June 2 – Wictor Furman, "European and US Perspectives on Investment Fund Regulation"

My students in comparative law especially might be interested in the April 14 program by attorney Wolska-Wrona, an expert with the EU Agency for Fundamental Rights.  Our class looked at eastern European skepticism of the Istanbul Convention as part of our examination of contemporary issues in EU law.  The matter remains timely; Turkey's withdrawal triggered protests just two days ago and was condemned by the Biden Administration.  I also look forward especially to the presentation of Professor Jefferson, who is a gem of a scholar and colleague.

[UPDATED, March 26, with video, below.]

Covid-era eviction elicits ancient injunction plea

Clameur de Haro was invoked to block the burial of William the Conqueror in 1087.

Image from Amable Tastu, La Normandie Historique (1858).

We've all seen the strain of the pandemic on our socioeconomic fabric and the rule of law.

Last week came the alarming news that a federal district judge in Texas ruled unconstitutional the eviction moratorium issued by the Centers for Disease Control.  Judge Campbell Barker held in Terkel v. CDC that the moratorium exceeded the federal power that the CDC could exercise on behalf of Congress under the Article I Commerce Clause and Necessary and Proper Clause of the U.S. Constitution.

A friend and colleague on Jersey, a Crown dependency close to France, sent along this fascinating item from the Jersey Evening Post.  A Jersey resident who was served with eviction papers after being unable to pay the mortgage invoked "an ancient legal right" called "the Clameur de Haro."  The Post explained:

To enact the Clameur the aggrieved party must go down on one knee in the location of the offence and then, with hands in the air and in the presence at least two witnesses, must call out: "Haro! Haro! Haro! A l'aide, mon Prince, on me fait tort." This translates as: "Hear me! Hear me! Hear me! Come to my aid, my Prince, for someone does me wrong." The offending activity must cease. The individual then needs to put the grievance down in writing and lodge it with the Judicial Greffe within 24 hours.

Jersey
(image of ESA Copernicus Sentinel-2 CC BY-SA 3.0 IGO)

Jersey is a fascinating study in comparative law.  One might expect the island to be legally indistinguishable from the UK, but that is not the case at all.  Jersey has its own parliament and legal system.  Unlike the UK, Jersey is not a member of the Hague Convention on the enforcement of foreign civil and commercial judgments, so a foreign entity wishing to enforce there must seek to register the judgment through a domestic legal process.

Collas Crill, "an offshore law firm that never stands still," wrote an explainer in 2018 on the Clameur de Haro in neighboring Channel Island Guernsey, where the process seems to be the same.  The explainer added, "After the cry, both the Lord's prayer and a Grace must be recited by the complainant in French."

Quartz reported how a woman in Guernsey stopped construction on a road improvement project in 2018 by invoking the Clameur de Haro.  According to Quartz, "[t]he clameur was first recorded in Norman law in the 13th century. Its use is believed to have originated in the 10th century as an appeal to Rollo, Viking founder of the Norman dynasty, according to a 2008 article in the Jersey and Guernsey Law Review by lawyer and legal historian Andrew Bridgeford."

Collas Crill lawyers further explained, "Arguably the main reason for the continued use of the Clameur is the immediacy of its effect, although in modern times an additional perceived benefit is the publicity it can draw to your cause."

State supreme court upends causation in tort law, promising plenty post-pandemic work for lawyers

"Cause and Effect" by Marina Noordegraaf CC BY-NC-SA 2.0

The high court of Massachusetts, in a 3-2 decision, has effected a seismic shift in tort law, adopting on Friday a new approach to legal causation.

The court's holding casts into uncertainty fundamental rules developed over more than a century across the full range of tort liability theories.  Years, even decades of litigation may be required to fully map out the change.

In short, the Massachusetts Supreme Judicial Court rejected the conventional rule of "substantial causation" in favor of analyzing "scope of liability" and "multiple sufficient cause," an approach counseled by the Third Restatement of Torts: Liability for Physical and Emotional Harm (2010), an influential scholarly treatise published by the nonprofit American Law Institute (ALI).  The court ordered the change for only some cases in negligence, but left open the possibility that the change would affect the whole of tort law in the Commonwealth.

Aristotle by Francesco Hayez (1811)

Cause and Effect

Almost every liability in tort law requires causation.  That is, a defendant is only liable when the plaintiff can prove that her or his injury was caused by the defendant.  But the meaning of cause has been famously elusive in law and a subject of multidisciplinary debate for millennia, spanning Aristotle's metaphysical analytics in 4th century B.C. philosophy, St. Thomas Aquinas's meditation on the existence of God in 13th century theology, and the problem of quantum superposition in 21st century physics.

Causation in law is dominated by the concept of "scientific causation," termed informally "but-for cause," and known also as "factual causation."  To recover, a plaintiff must prove causation by showing that but for the conduct of the defendant, the plaintiff would not have been injured or suffered loss.

Scientific causation goes a long way to providing a legal standard, but not all of the way.  Legal scholars have long recognized that the approach has shortcomings, especially in cases of "overdetermined" causation.  That is, the test sometimes fails to indicate causation in the presence of multiple culpable defendants.  The test also sometimes indicates causation for one defendant, of many, whose culpability is so minimal as to be exonerating.

Image by State Farm (CC BY 2.0)

The classic example of improper failure of causation is a plaintiff's home consumed by two converging fires.  The multiple causes of destruction are said to "overdetermine" the harm.  The jury might conclude that but for either fire, the home would have been consumed anyway by the other fire.  Thus, it seems, neither fire is a but-for cause of the destruction.  At best, it is difficult, if not impossible, for the jury to determine whether either fire was a but-for cause.  Yet it cannot be right that the arsonist who started only one of the fires escapes civil liability.  If either fire by itself would have destroyed the home, then each fire is a "sufficient" cause of the destruction, and that standard supports liability.

Pixabay by Gerd Altmann

In rarer cases, but-for causation indicates causation when common sense suggests otherwise.  Imagine that science one day so masters the complexity of weather systems that it can be proved that but for the beating of a carpet on a Cape Town balcony, a hurricane would not have struck New York ("the butterfly effect," like in time travel, but not really).  The carpet beater might be a scientific cause of the hurricane, but we would be reluctant to say that the carpet beater is responsible for the hurricane.  The principle can be extrapolated to physical systems known to contemporary science, such as human pathology.  Consumption of a single cigarette might be proved to have catalyzed cancer in the plaintiff, alongside other causes, such as genetic predisposition and a history of pipe smoking.  But we might not agree that the proven catalysis by itself is a sufficient reason to charge the cigarette seller with civil liability for the whole of plaintiff's suffering.

To better calibrate the rule of causation to tort liability, American tort law in the 20th century developed the concept of "substantial causation," sometimes, if at risk of imprecision, called "legal causation" or "proximate causation."  Liability came to require that the defendant's conduct was a scientific cause and a substantial cause of the plaintiff's injury, or, in rare cases fitting the fire paradigm, a substantial cause indivisible from other sufficient causes, together constituting a scientific cause.

Pixy (CC BY-NC-ND 4.0)

A Substantial Disagreement

The rule of substantial causation attracted adherents and opponents.  Adherents said that the concept worked well, because it is understandable to ordinary people, especially jurors.  Tort law is about enforcement of the unwritten social contract.  We, ordinary members of the society, have a shared intuition about when a scientific cause is as powerful as a home-wrecking fire, justifying declaration of a civil wrong.  Likewise, possessed of common sense, we can recognize a trivial scientific cause as an insufficient basis to impose liability.

Precisely so, opponents responded.  Substantial cause invites a jury to disregard proof of scientific causation and to make moral judgments about responsibility.  The rule employs the hopelessly amorphous standard of substantiality to allow juries and courts to make policy and conceal their hubris with the aroma of equitable legitimacy.

The policy-making potential of legal causation was not lost on lawyers and jurists, many of whom embraced it as socially desirable.  One can argue that civil juries, guaranteed by the Seventh Amendment and heralded by Alexis de Tocqueville, if mocked by Mark Twain and Dave Chappelle, are the inspired mechanism with which America democratically injects public policy into the civil trial.

Pixy (CC BY-NC-ND 4.0)

And although causation devolves to the jury as a question of fact, a court has the power to obviate the need for an expensive jury trial when a question cannot be decided but one way by ordinary minds.  In such circumstances, the question is said to be decided as a matter of law.  Thus, substantiality was termed "legal causation" and offered grounds for a judge to dismiss a case, rather than let the liability question reach the jury.

Judges might be more or less bold or overt in how they exercise power through legal causation, depending on how their jurisprudential philosophies regard the propriety of judicial policy-making.  In a highly regarded paper in 1983, economically minded scholars William Landes and Richard Posner suggested that if the facts of a case point erroneously toward a politico-economically inefficient result, "cause comes to the rescue."  In other words, the rule of legal causation empowers the court to direct the outcome and "the optimal result to be achieved."  (Both Landes and Posner are affiliated with the University of Chicago Law School, known for its commitment to law and economics; Justice Kafker earned his law degree there.)

A Third Way

Substantiality detractors got the better of the argument when the ALI drafted the Third Restatement in the 20-aughts.  The authors did not take policy and pragmatism wholly out of the judicial process, but sought to abate confusion about where they reside by moving them.  The Third Restatement approach moves "legal causation" from the "cause" element of negligence into a new inquiry, "scope of liability."  The similarly ancillary function of the "duty" element of negligence also was moved and merged at this new address, though that's a blog post for another day (and a question left open by the Massachusetts ruling).  The new approach means to give judge and a jury a place to circumscribe defendant liability exposure without the semantic gamesmanship arguably required by the conventional analysis of causation and duty.

The restatement project is often criticized for seeking to progress the law rather than merely restate it.  The line is finer than it might seem.  On this point, one certainly can say that the authors intended to change the law of the states.  At the same time, it's equally defensible to say that the authors sought to help the states to clarify the law, that is, to better state, or restate, what they were doing already.

Pulmonary embolism by Baeder-9439 (CC0 1.0)

A Tale of Two Causes

The case before the Court in Massachusetts involved the death of a patient and two instances of medical malpractice.  Plaintiff Laura Doull died from complications of chronic thromboembolic pulmonary hypertension, or CTEPH.  The jury determined that a nurse practitioner was negligent in failing to diagnose Doull with a pulmonary embolism in 2011, and that Doull's doctor was negligent in supervision of the nurse practitioner.  However, the jury also determined that neither instance of negligence was a but-for cause of Doull's death from CTEPH; in other words, Doull's death was a consequence of her illness and not of anything the nurse practitioner and doctor did, right or wrong.  The defendants were not responsible.

On appeal, the plaintiff argued, among other theories, that the trial judge had not instructed the jury properly.  The trial court had instructed the jury on but-for causation, but not on substantial causation.  All five justices who heard the case for the Supreme Judicial Court affirmed the judgment for the defendants.  The court was unanimous in holding that the plaintiff's case must fail, because the jury determined that but-for causation failed.  First, there was no need for the jury to consider legal causation when there was no factual causation.  Second, this case was not about two fires converging on a house.  Though a consequence of two actors, there was only one misdiagnosis.

Justice Kafker

In a majority opinion authored by Justice Scott Kafker and joined by Chief Justice Kimberly Budd and Justice Elspeth Cypher, the court reached the sweeping conclusion that the Commonwealth adopts the Third Restatement approach to causation.  The change makes no difference in the instant case, because but-for causation still is required under the Third Restatement approach, in fact is the nub of what remains in the causation element, legal cause having been removed to scope of liability.  The concurrence, authored by Justice David Lowy and joined by Justice Frank Gaziano, would not have changed the Commonwealth's approach to causation, but would have ruled that the omission of the substantiality instruction was harmless error.

The plaintiff's argument predicated on failure to instruct on substantiality played into the majority's position on the Third Restatement.  Recall that critics of substantiality contend that it invites jurors to disregard scientific evidence and reach a liability determination despite the failure of but-for causation.  Because but-for causation was required, and the jury found it absent, the plaintiff's plea of error suggests that an instruction on legal causation should have been permitted to obfuscate the jury's view of factual causation.  "What originated as an exception to but-for causation would swallow the rule," the majority wrote.  The old approach "blurred the line between factual and legal causation," indeed, "conflates and collapses the concepts of factual and legal causation." 

Image by johnny-automatic (CC0 1.0)

In most cases, the court majority concluded, the but-for instruction on causation alone is sufficient, even when there are multiple potential causes.  "There is nothing preventing the jury from assessing the evidence and determining which of the causes alleged by the plaintiff were actually necessary to bring about the harm, and which had nothing to do with the harm," the majority reasoned, and the jury did just that in the instant case.  As to the paradigmatic two-fire scenario, the court wrote that

in the rare cases presenting the problem of multiple sufficient causes, the jury should receive additional instructions on factual causation.  Such instructions should begin with the illustration from the Restatement (Third) of the twin fires example so that the complicated concept can be more easily understood by the jury.

After the illustration, the jury should be instructed, "A defendant whose tortious act was fully capable of causing the plaintiff's harm should not escape liability merely because of the happenstance of another sufficient cause, like the second fire, operating at the same time."  The jury should then be instructed that when "there are two or more competing causes, like the twin fires, each of which is sufficient without the other to cause the harm and each of which is in operation at the time the plaintiff's harm occurs, the factual causation requirement is satisfied."

In such cases, where there are multiple, simultaneously operating, sufficient causes, the jury do not have to make a but-for causation finding.

(Footnote and citation omitted; paragraph breaks added.)  The majority also noted, likewise as counseled by the Third Restatement, that a jury may be admonished to disregard trivial causes to redress the rare problem of a false positive in but-for causation.

Justice Lowy

Cross Concurrence and Tort Retort

The concurrence disagreed sharply over the abandonment of substantial causation, and the text of the opinion hints at a heated debate.  "Today the court abandons decades of precedent in an attempt to clarify confusion that does not exist," Justice Lowy opened.  "Abandoning the substantial contributing factor instruction in circumstances where there is more than one legal cause of an injury will, in my view, inure to the detriment of plaintiffs with legitimate causes of action while not clarifying the existing law of causation."

Substantiality has long been the rule for clarity in cases of multiple potential causes, Justice Lowy explained.  It was the approach of the Second Restatement, published in 1965, and before it, the First Restatement, published in 1939, and appeared in Massachusetts case law as early as 1865.  

The test has endured because it works, Justice Lowy reasoned.  The "counterfactual framing" of the but-for test, compelling the jury to imagine a reality in which a defendant's conduct did not occur, paints only half a picture and risks misleading the jury.  In multiple-cause cases, counterfactuals "invite the jury to get caught up in speculative combinations of 'what if' and 'if only,'" Justice Lowy wrote.  "In the sorts of byzantine fact patterns that often arise in medical malpractice, toxic tort, and other tort cases with multiple causes, an instruction on but-for causation provides defendants with tools unavailable to plaintiffs," such as blaming a party not on trial (civil "Plan B").

Pixabay by b0red

The substantiality test "focus[es] jurors' attention" inversely: "it frames causation to have a juror start by considering what actually happened, and whether the defendant's actions played a part in producing the result."  The instruction "focuses the jurors ... directly on what ought to determine legal responsibility: the conduct of the parties."

The concurrence accused the majority of "abandon[ing] what has been our steady and successful practice" of instruction on substantiality.  "Why the sudden about-face?" the concurrence asked rhetorically, then answered: "Only one thing has changed: the Restatements."  In the majority's reasoning, the concurrence observed, "citations to our cases drop off.  Instead, the court replicates an abstract and academic discussion of the problems that the Restatement (Third) of Torts found with the standard" (footnotes omitted).

In footnotes, the concurrence suggested that any confusion results from the Third Restatement's cross-jurisdictional comparison, which omits Massachusetts, and observed, citing Hawaii, that other states have continued to test for substantiality in the decade since the Third Restatement appeared.

The majority responded in its footnotes.  The Third Restatement approach has not been adopted nowhere.  The Iowa Supreme Court adopted the Third Restatement in 2018, the majority noted.

Pixy (CC BY-NC-ND 4.0)

Referencing judicial confusion over multiple causes, the majority noted: "For an example of this confusion, look no further than the concurrence."  The majority disputed the concurrence's conclusion that the Third Restatement approach favors defendants.  And the majority rebutted the concurrence's assertion that the substantiality test has been working: "Beyond the concurrence's own appraisal of the situation, it is not clear what evidence, empirical or otherwise, there is that the use of the standard has been 'steady and successful.' ....  Indeed, when forced to decide what standard to use, the experienced and capable trial judge in this case observed, 'Well ... I know that the law has been somewhat confused in some people's eyes ....'"

The majority took umbrage at the concurrence's suggestion that the court would change Commonwealth law simply to pursue the lead of the Restatement.

The concurrence minimizes the numerous extensive critiques of the substantial factor test....  The concurrence also suggests that we are somehow simply following academic fashion in adopting the Restatement (Third).  This statement ignores that the substantial factor test originated with the Restatement and that the case law the concurrence cites ... has demonstrated great respect for the development of the law as reflected by the Restatement of Torts....  We turn to the Restatement not because it is fashionable to do so, but because the American Law Institute has struggled greatly with the complicated question of causation in negligence cases and is constantly trying to improve the legal standard in this area, including recognizing its own errors in this regard.

Justice Kafker is a member of the ALI.

"The Restatements are owed respect," Justice Lowy retorted.  "Our cases, however, deserve more."

But What About

I'm not a fan of change.  The worst part of all of this for me is that from here on out, I am going to have to teach Massachusetts torts students two versions of attenuated duty and causation, which already is the longest and hardest chapter of the textbook.  Am I going to get more credit-hours to cram it all in?  No.  Am I going to get paid more to prep more?  Definitely no.  And then there are the unanswerable questions.

Asbestos shingles by Mary Lotus (CC BY-SA 3.0)

The instant case arose in medical malpractice, though the majority extended the new causation rule through negligence.  Or most of it.  The court explicitly declined to apply the new rule in cases of toxic torts, at least for now.  Toxic tort cases, such as asbestos claims, are similar to multiple-sufficient-cause cases in that it is difficult, if not impossible, for a jury to trace a plaintiff's illness to one causal agent, one asbestos producer, even while it seems likely that defendants, asbestos producers, collectively are responsible.

In a very few jurisdictions, this problem has led to a controversial approach to liability based strictly on a defendant's share of the product market.  Massachusetts has not gone that far, but has loosened the causation requirement, essentially allowing substantiality to overwhelm scientific causation.  That approach becomes problematic, now, in light of the court's abandonment of substantiality.

Because the but-for test "seem[s] ill-suited" for toxic-tort cases, the majority opined in a footnote:

It is simply not clear whether the concerns we have with the substantial contributing factor test justify eliminating it in these cases.  Given the volume of these cases, their great importance, and the idiosyncrasies that make them unique with regard to factual causation, it would be unwise to apply our holding to these cases as well without first having the benefit of full briefing and argument.  Our hesitance, however, should not be taken as a continuing endorsement of the substantial factor approach in toxic tort cases given the concerns we have expressed today.

Pot, kettle, the concurrence wrote.  "For all its purported confusion, the [substantiality] standard continues to work well in toxic tort cases—except for the fact that the court also invites in a footnote overturning what it otherwise praises."

In fact, the problem is bigger than toxic torts, and bigger than a law professor's woes.  The problem of this decision's scope extends to all of tort law.

Remember, a plaintiff in civil litigation must prove causation to recover.  That's not a rule of only medical malpractice, nor a rule of only negligence.  It's a rule of all torts.  All torts require causation.  The elements of conventional negligence, duty, breach, causation, and injury, are the elements of all torts, stripped of factual context, unexcepted by special circumstances: the fundamental particle components of a compensable civil wrong.  

Photo by Phil Roeder (CC BY-NC-ND 2.0)

Thus, again in a footnote, the concurrence hinted at a parade of horribles: "[A]dopting a new approach to cause-in-fact issues in torts will encourage litigants to press for its application in other areas of the law beyond negligence, such as commercial disparagement, defamation, and false representation."  I earlier mentioned an arsonist; basic intentional torts require causation, too.  The problem of causation is so not confined to negligence that the concept of "foreseeability" is used loosely to flesh out legal causation and, simultaneously and alternatively, to locate and describe the outer bounds of the civil liability system in total.

So, tort lawyers, on your marks....

The case is Doull v. Foster, No. SJC-12921 (Feb. 26, 2020).  Justice Dalila Wendlandt and Justice Serge Georges, Jr., were sworn into the court in December 2020 and did not participate in the decision.