I've been away from blog duty for some weeks because of a busy presentation agenda this month. But I have a list of items pending, and I look forward to returning to writing and sharing what I've learned. Meanwhile, I am distraught by events in Ukraine. I have family from Kamianets-Podilskyi.
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| Carpathian Range (map by Ikonact CC BY-SA 4.0) |
The Beijing Olympics opened Friday, and conventional wisdom suggests that the chess game playing out in Eastern Europe will not heat up until the Olympics ends on Sunday, February 20. Nervous speculation abounds on what the following week might bring. Meanwhile, 3,000 American troops are deploying to Poland, Romania, and Germany.
February 24 thus seems an opportune time to learn something more about the complicated history of the region that is the focus of the world's attention. The Lemkos ethnic group, at home in the Carpathian mountain range, sits at a curious crossroads. With communities spanning Poland, Ukraine, and Slovakia, the Lemkos are an important piece of the region's multicultural story. Oppressed by the Soviet Union, they are something of a mirror image of the intercultural wedge that Vladimir Putin is now driving to fragment Ukraine in the east.
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| Carpatho-Rusyns, including Lemkos at left, celebrate a cultural day in 2007. (Photo by Silar CC BY-SA 3.0) |
Registration for the Zoom lecture is free. New members are always invited to join the Jagiellonian Law Society and Kosciuszko Foundation. (I'm a member of the former.) The Kosciuszko Foundation sponsors student scholarships and exchanges, among many other programs.
This year marks the 22nd installment of the International Business Summit & Research Conference (INBUSH ERA). The year's theme is "Nurturing People, Purpose, Partnerships, Planet & Performances for Creating Sustainable World Class Organizations." Host Amity University is a prominent network of private universities in India, and the conference will be online and hybrid, based at the university's flagship campus at Noida, Uttar Pradesh, near Delhi.
Yesterday I had an organizational call with my colleague Professor Marut Bisht, who is elbow deep in planning academic components of the conference. I look forward to offering a perspective on transnational communication regulation on a U.S.-focused panel beginning on Thursday, February 24, at 1330 GMT. The same panel will recognize and welcome remarks from:
INBUSH ERA 2022 also incorporates a "Happiness Conference" with speakers including Ben Smith, head of research and innovation for the Chelsea Football Club.
Dr. Verma has joined the University College of Bahrain as Vice President for Academic Affairs. The university is a non-profit, English-language institution in the Kingdom of Bahrain, modeled after U.S. and Canadian higher education in the liberal arts tradition. The university's leading programs are in business administration, information technology, and communications and multimedia.
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| Prof. Manish Verma (LinkedIn photo) |
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| Bahrain, in the Persian Gulf (map by TUBS CC BY-SA 3.0) |
Closer to home, for me, attorney Kristine Goodwin has been named Vice President of Student Affairs at Western New England University. Located in Springfield, Massachusetts, Western New England is a vital provider of access to higher education in its region. In addition to the WNE School of Law, led by the talented Dean Sudha N. Setty, the university boasts colleges in arts and sciences, business, engineering, and pharmacy and health sciences.
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| Kristine Goodwin (WNE photo) |
I hope leaders at University College of Bahrain and Western New England University, and students in Bahrain and Massachusetts, know how lucky they are.
Thomas D. Aaron Wazlavek, Esq. has published an article in comparative labor law: The Pond Separates Cultures but Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment. The article appears in the Florida Journal of International Law at the University of Florida Levin College of Law. Here is the abstract:
The differences and similarities between the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor following the “Yellow Vest” movement in 2018 demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This Article analyzes the social and legal contexts in both countries that demonstrate that the superimposition of these values through law is a continuing modern western trend. The key difference is that while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers as compared with the American model which exists as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this Article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms. This Article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.
An attorney living and working in Rhode Island, Wazlavek (blog, LinkedIn, Twitter) presently serves as a contract coordinator for Teamsters Local 251. It's not uncommon to see him on a Rhode Island street corner alongside sign-wielding workers. He had already a wealth of experience in the labor movement before he went to law school. He taught me a great deal about organized labor—its value when it works the way it's supposed to—and I was able to contribute torts and comparatism to his impressive repertoire.
The Pond started as a paper in Comparative Law, co-taught by an embedded librarian, the esteemed Dean Peltz-Steele, and me and tracks one of many remarkable parallels in the cultural evolution of the United States and the French Republic. Just yesterday I read Rachel Donadio's fascinating treatment of secularism, or laïcité, in The Atlantic. Observing the shared roots of the French principle with American anti-establishment doctrine, Donadio observed:
The histories of few countries are as deeply intertwined as those of France and the United States. Both nations are products of the Enlightenment, and each sees itself as a beacon among nations. Both embody a clear separation of Church and state. In the United States, the separation is defined by the establishment clause of the First Amendment, which prohibits the government from making any law "respecting an establishment of religion" or obstructing the free exercise of religion. The First Amendment was inspired by the earlier Virginia Statute of Religious Freedom, adopted in 1786, the work of Thomas Jefferson. Jefferson was ambassador to France when the French Revolution began, and the Marquis de Lafayette consulted him when drafting the revolutionary Declaration of the Rights of Man and Citizen, passed in 1789. Article 10 of that document states, "No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order."
A shared legacy on labor regulation might not be traced so easily to the 18th century, but I would contend that American and French thinking about work and life is plenty in common. Wazlavek maps that common cultural territory, and the article examines the social and economic forces that have prompted divergence, largely to the hazard of the American worker, and yet some recent convergence that prompted the Yellow Vest movement.
The article is Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment, 33 Fla. J. Int'l L. 75 (2021).
[UPDATE, Feb. 3, 2022:] Only two days after posting this item, I happened upon this compelling article as well: Stéphanie Hennette-Vauchez, Religious Neutrality, Laïcité and Colorblindness: A Comparative Analysis, 42 Cardozo L. Rev. 539 (2021).
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| Late Show monolog mock-up |
First, a gift for Torts II students, from Stephen Colbert: In a monolog on the retirement of Justice Stephen Breyer, Colbert on The Late Show with Stephen Colbert played on the word "torts" to joke about Justice Breyer's stated intention to refine his cooking skills in retirement. "From Torts to Tarts," Colbert said (cue 2:31), suggesting a name and mock cover for a forthcoming Supreme Cookbook.
The U.S. Supreme Court of course does not often deal directly with
torts, or civil wrongs, which are mostly matters of state law in the
United States. It's often a source of misunderstanding for foreign
lawyers and new American law students who must learn that SCOTUS is not "the highest court in the land" (even besides that one) when it comes to torts.
That said, a good deal of tort law finds its way to the federal high court on all kinds of paths. Federal courts routinely apply state law in multi-district litigation, including mass tort claims, and in matters involving both federal and state claims. State tort claims can become mixed with federal questions in problems of constitutional defenses and preemption. Federal "common law" persists in places of original federal jurisdiction, as in maritime matters. And the trial of civil wrongs recognized in federal law, such as civil rights, can borrow the "machinery" of state tort law, both procedural, as in application of a statute of limitations, and substantive, as in apprehension of proximate causation.
For Law360, Emily Field and Y. Peter Kang yesterday detailed six must-know Breyer opinions in product and personal injury liability. These are their six cases (with links to Oyez), which they flesh out in the article (subscription required).
The article is Emily Field & Y. Peter Kang, 6 Breyer Product, Personal Injury Opinions Attys
Should Know, Law360 (Jan. 27, 2022) (subscription required).
Second, a gift for Comparative Law students, from Trevor Noah: On The Daily Show with Trevor Noah, Noah reported on actor Peter Dinklage's criticism of Disney's planned live-action reboot of Snow White and the Seven Dwarves (1937). There have been other versions; the story is derived from fairy tales that were included in the first Grimms' in 1812. Dinklage, who has dwarfism, wondered at the inconsistent wokeness of casting Latina actress Rachel Zegler as the lead, while continuing to work with a story about "seven dwarves living in a cave."
While acknowledging Dinklage's objection as legitimate, Noah admitted, "I've never watched Snow White and found the dwarves offensive. All right? But I do understand what he's talking about. I genuinely do. Because if that movie was called 'Snow White and the Seven Blacks,' I mean, that would be weird."
Noah's take nicely illustrates one dimension of the perspective problem in social research, and it's especially salient in comparative law. Like Noah, I never thought about the seven dwarves as an insulting characterization of people with dwarfism. But after hearing Dinklage's perspective from within the dwarfism community, I can perform a "mental rotation" (to use the psych term) and empathize.
The problem when researching law and society in an unfamiliar context, whether it's a shared physical condition, a religion, or a political state, is that my perspective is shaped by my own limited experience in ways that I might not even be conscious of. The perspective problem can never be entirely eliminated in social research, but it can be mitigated. It's helpful to think consciously about one's perspective to gain some cognizance of the limitations of one's research.
As to the Seven Dwarves of fairy-tale fame, Disney announced that it is "taking a different approach with these seven characters and ha[s] been consulting with members of the dwarfism community." I look forward to what creative minds will yield.
Incidentally, in the same Daily Show, Noah did an excellent piece on insider trading in Congress. Just last week I noted a publication on the subject by Spencer K. Schneider, a former teaching assistant of mine. I added a video embed from Comedy Central to the bottom of that post.
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| Historical interior of the William Bliss House, 25 Exeter, Back Bay in Boston, constructed 1882-1884: today the private home of the Nemirovsky family. Source: Historic New England. |
The case arose from a faulty HVAC system installed in plaintiff's 22,000-square-foot Boston home. Evaporator coils in the system repeatedly failed and required replacement, costing the plaintiff hundreds of thousands of dollars, and then substantially more to replace the system in its entirety. The coils themselves were not defective, but a defect in the system's Styrofoam drain pan caused the coils to fail prematurely. The statute of limitations precluded plaintiffs' claims based on sale of the HVAC system, but not claims based on the later sale of replacement coils.
Sensibly, the widely accepted "component parts doctrine" ordinarily relieves from liability the manufacturer of non-defective component parts. However, the SJC explained, citing the Third Restatement, "a component manufacturer may be liable, even if the component itself is not defective, if the component manufacturer is 'substantially involved' in the integration of the component into the design of the integrated product, the integration of the component causes the integrated product to be defective, and the defect in the integrated product causes the harm."
The Superior Court erred, the SJC concluded, in not applying the general rule of the component parts doctrine. The Superior Court had reasoned that the coil manufacturer could be liable because the coils were made specifically for integration into the defective HVAC system and had no standalone functionality. In other words, the product failure was foreseeable to the coil manufacturer. But there are no such exceptions to the component parts doctrine, the SJC held. Intended integration is not the same as the "substantial involvement" contemplated by the Restatement rule. And standalone functionality is not the test to shield a component maker from liability.
The component parts doctrine is widely accepted in the states. There was some hand-wringing over the vitality of the doctrine in 2016 when the California Supreme Court held the doctrine inapplicable when "injury was allegedly caused directly by the [defendant's] materials themselves when used in a manner intended by the suppliers." In that case, a metal foundry worker had developed lung disease, he alleged, as a result of fumes and dust generated by the foundry's use of the defendant's materials in manufacturing. But it was the defendant's materials that caused the disease, even if they had been physically transformed by the foundry. And the specific intentionality attached to the use of the materials closely resembled substantial involvement, tightening the lasso of foreseeability. The decision hardly unsettled the component parts doctrine.
Law students should take care not to confuse the component parts doctrine with "the single integrated product rule." That rule determines when damage to an integrated product can be said to satisfy the injury requirement of product liability. Standalone functionality is relevant to the analysis, but not necessarily dispositive. If a component part is intended for integration into a larger product, and a defect in the component causes damage to the larger product, but no damage beyond the larger product, then the buyer of the defective component cannot meet the injury requirement to sue in product liability. The theory of the rule is that the buyer, anticipating the integration, should protect itself in contract and warranty, rather than depending on tort law. The component parts doctrine rather precludes component manufacturer liability for a non-defective integrated component upon the theory that the component buyer, responsible for the integration, is in the better position to ensure the safety of the integrated product.
In the Massachusetts case, the SJC's decision vacated a $10.6m award. The jury had awarded just under $3.4m in its verdict. Massachusetts does not allow punitive damages at common law, but an expansive statute protecting consumers against misrepresentation, "chapter 93A," subsumes much of what would be separate product liability claims in other jurisdictions and can hit defendants with punishing awards of damage multipliers and attorney fees. Under 93A, the trial court had awarded double damages and attorney fees against defendant Daikin North American for its "willful and knowing" misrepresentation. Daikin NA might not be off the hook entirely, as the SJC ordered a reexamination of its culpability on remand, to disentangle product liability based on defect from product liability based on culpable misrepresentation.
The case is Nemirovsky v. Daikin North America, LLC, No. SJC-13108 (Dec. 16, 2021). Justice Dalila Wendlandt wrote the unanimous opinion.
Ahh, rich people problems....
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| Pixy.org CC BY-NC-ND 4.0 |
I wrote here at The Savory Tort about the intermediate appellate court decision in January 2021:
Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file. The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action. But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.
The Appeals Court had struggled with the case, deciding it 3-2 on rehearing after an initial 2-1 ruling against Meehan. I commented then: The outcome was not inconsistent with American courts' general inhospitality to public policy-based claims of wrongful termination. At the same time, the outcome was discordant with Massachusetts's more liberal disposition on wrongful termination, especially considering the civil rights-protective vein of the rebuttal statute.
The Supreme Judicial Court (SJC) recognized that public-policy constraints on at-will employment termination must be narrowly construed. But constraint
has been recognized "for asserting a legally guaranteed right (e.g., filing a worker's compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)" [SJC's added emphasis].... In addition to these three categories, this court subsequently created a fourth category to protect those "performing important public deeds, even though the law does not absolutely require the performance of such a deed." .... Such deeds include, for example, cooperating with an ongoing criminal investigation.
The rebuttal statute fell in the first category, the SJC held. The trial court and Appeals Court had improperly second-guessed the importance of the statutory right and discounted it for its relation primarily to internal private affairs. Those considerations bear on the fourth category, the court explained. The legislative pronouncement is conclusive in the first category.
Even so, the court opined, the right of rebuttal is important, because it facilitates compliance with other workplace laws, "such as workplace safety, the timely payment of wages, and the prevention of discrimination, and nonemployment-related activity, such as those governing the environment and the economy."
While the lower courts were put off by the legislature's seemingly exclusive express remedy of a fine for non-compliance, the SJC regarded the omission of a retaliation remedy as mere failure to anticipate. "Indeed," the court opined, retaliatory termination "would appear to be sticking a finger in the eye of the Legislature.... We conclude that the Legislature would not have permitted such a flouting of its authority, had it contemplated the possibility."
An employee claiming wrongful termination still has a hard road to recovery. The court emphasized that causation, connecting rebuttal and termination, may raise a question of fact in such cases, and here on remand. Moreover, an employee can overstep and forfeit common law protection. The statute "does not extend to threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal."
The case is Meehan v. Medical Information Technology, Inc., No. SJC-13117 (Mass. Dec. 17, 2021). Justice Scott Kafker wrote the opinion of the unanimous court.
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| Photo by Marco Verch (CC BY 2.0) |
Plaintiff Harrington was hospitalized after police found her unresponsive in her parked car. In the complaint, she alleged that sheriff's deputies "joked about her incapacitated condition and played along when nurses asked them to guess her blood alcohol content" (BAC). A nurse thereby disclosed Harrington's BAC, and, the complaint alleged, deputies then coaxed the record from a doctor. Harrington was charged with driving under the influence.
Subsequently, Harrington sued county officials and Madison Valley Hospital, the latter on theories of state statutory information privacy and common law invasion of privacy, negligence, and negligent infliction of emotional distress. The hospital sought dismissal on grounds that the federal Health Insurance Portability and Accountability Act (HIPAA), cited by the plaintiff in the complaint, affords no private right of action. The federal district court, per Chief Judge Brian Morris, denied the motion to dismiss, recognizing that while HIPAA does not itself authorize private enforcement, it also does not preclude state law from providing greater privacy protection.
The case caught my attention because its facts point to something for which I've advocated, the use of tort law to fill gaps in informational privacy protection in the United States. The law has not kept up with Americans' expectations of privacy, much less the norms of the world, but the common law should be sufficiently dynamic to reflect the evolving social contract. I see drift in this direction in the expansion of medical fiduciary duty in emerging precedents in the states, such as Connecticut's Byrne v. Avery Center for Obstetrics & Gynecology, P.C., in 2018.
A theory as tenuous as negligent infliction of emotional distress, "NIED," can't usually stand on its own. And tortious invasion of privacy has a poor track record in protecting personal information that is already in limited circulation. However, paired with a medical provider's fiduciary duty and bolstered by a privacy violation recognized in regulation, either tort theory might be ripe for redefinition.
The case is Harrington v. Madison County, No. 2:21-cv-00015 (D. Mont. Dec. 6, 2021). Hat tip to Linn Foster Freedman at Robinson+Cole's Data Privacy + Cybersecurity Insider.
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| Photo by RJ Peltz-Steele at O.R. Tambo International Airport, Johannesburg, South Africa, 2020 (CC BY-NC-SA 4.0) |
I read TPG every day. The website is funded by product placements and advertising, especially by credit card companies. One has to know that and take the content with heaps of salt. But I find TPG incomparable and nonetheless worthwhile for keeping up with the travel industry. And TPG advice has been especially helpful to me with advice on frequent flyer programs, for example, letting me know how much miles are worth on average in real dollars, so I know whether dynamic redemption tables are offering a good deal.
I also like some of the writers at TPG, because they set a tone that resonates with me, mixing a desire for industry accountability, especially for airlines, with a sense of humor and a lighthearted wonder of the world. Baltimore-based senior editor Benét J. Wilson (LinkedIn, Muck Rack, Twitter; see also Poynter) is especially fabulous; check out her wider world at Aviation Queen. I met Benét when she taught an outstanding program on advanced Google research tools for the National Freedom of Information Coalition (NFOIC), and thereby for my FOI Law students, who participated.
Last year, TPG launched an Apple app. I haven't used it, because I'm an Android user. I avoid Apple products because I've never been a fan of Apple intellectual property (IP) policies, which I mention because it's relevant here. Apple's limited submission to a right of repair for Apple smartphones is a step in the right direction; more on that momentarily. Anyway, TPG is working on the Android version of the app.
Among many features, the TPG app empowers users to manage their frequent flyer miles. TPG deep-links to data from sites such as that of American Airlines (AA), within users' accounts there. Obviously, this access improves the user's ability to maximize the value of their miles, recognizing good deals and, key, getting advance warning when miles are set to expire.
AA was not happy about that. The company accused TPG of violating the terms and conditions of the website and frequent flyer program, AAdvantage, thus, allegedly, interfering with AA's contract with its customers and infringing on AA IP. According to media reports, TPG sued AA in Delaware state court the week before last. I assume TPG sought declaratory relief; at the time of this writing, the complaint is not yet available from Delaware courts.
Then on Tuesday last week, AA sued TPG in federal court, in AA's home Northern District of Texas. The complaint alleged tortious interference with, inter alia, contract, unfair competition by misappropriation, (virtual) trespass, trademark infringement and dilution, copyright infringement, and violation of the Computer Fraud and Abuse Act.
For Law360, Jasmin Jackson filled in some background last week (limited access without subscription). Jackson reported that TPG initially sought AA's partnership in the app. AA declined. Since the app's launch, the two were discussing their differences. AA claimed surprise at TPG's Delaware filing and accused TPG of leveraging its position with litigation costs and compelling, AA said, the suit in Texas.
I see the case as a high-tech relation of the right-to-repair problem. AA is gaining a business advantage through obfuscation of customer data and control of information under the guise of IP protection. The same strategy is why I have to pay a high-dollar technician to tell me what's wrong with my car when the check-engine light comes on, and it's why 11% of McDonald's Taylor-made McFlurry machines are broken.
There is a Fair Repair Act bill in Congress, even if its odds of passage are dismal. And the President last summer made overtures, however feeble, ordering the Federal Trade Commission to regulate to protect independent repair shops. Industry claims it needs exclusive repair rights to protect consumers from incompetent independent technicians. But a May 2021 FTC report located such industry claims somewhere between baseless and overstated.
The cause should be, and at least sometimes is, bipartisan. As I have commented many times, free markets depend on transparency, the free flow of information between business and consumer. So even economic conservatives should be able to get behind the right to repair. That bipartisan impulse has fueled congressional appetite for now pending bills to enhance antitrust in the tech sector. Apple's seemingly open-minded move to allow smartphone repair might have been calculated to head off antitrust enforcement.
Summons issued last week in the lawsuit filed by AA, which is American Airlines, Inc. v. Red Ventures LLC, No. 4:22-cv-00044 (N.D. Tex. filed Jan. 18, 2022).
UPDATE, Nov. 10: The parties settled on undisclosed terms on November 4, 2022.
