Should mass media audiences have right to know whether content is fact or opinion?

Political protestor in 2012
(photo by Gabriel Saldaña CC BY-SA 2.0 via Flickr)

To protect the civil rights of the audience, radio and television providers in Mexico may be compelled to distinguish between fact and opinion, a minister of the First Chamber of the Supreme Court of Justice ruled in November 2021.

The decision by Minister Juan Luis González Alcántara Carrancá struck down a federal telecommunication reform that repealed the fact-opinion distinction, holding that the repeal violated the right of the audience to know the nature of the content it is receiving. (More at Observacom en español.)

It remains to be seen whether the minister's opinion will hold up, or how enforcement might work going forward. But the opinion points to some intriguing considerations as all liberal democracies debate their responses to the problems of misinformation and scarce objectivity in news media.

Approaching misinformation as a problem of audience rights rather than speaker rights is a compelling spin.

The approach is not unknown in U.S. telecommunication regulation, which is justified in part with reference to public ownership of the airwaves. As television transitioned from broadcast to cable, the public right to receive gained ground alongside the property rationale. Though these days, the whole enterprise of balkanized media regulation is constitutionally questionable.

Detaching the audience right from the medium to ground a general right to receive accurate information from mass media, apart from speaker rights, is, anyway, a bold further step. The debate in American free speech law over anonymity and compelled source disclosure in campaign finance, though, comes to mind.

The idea that fact and opinion can be distinguished, or should be distinguished, is an additionally intriguing idea.

It would be easy to conclude that the distinction is too hazardous to contemplate, chilling the practice of journalism for fear of perceived slant, invading the province of ethics, and threatening the vital tradition of the editorial page. The fuzzy identity of advocacy documentary puts the problem in focus, whether the subject to be tested is Hillary: The Movie (2008), the film at the heart of Citizens United, or the latest Michael Moore project.

At the same time, the "fact-opinion dichotomy" is an extant feature of our defamation law. We have developed tools to make the distinction, and we expose assertions of fact to greater potential liability than we do opinions.

Indeed, the Mexican fact-opinion distinction is not grounded in an effort to combat misinformation; rather, the notion grows out of advertising regulation, where the concept is familiar to American jurisprudence, too. Mexican regulators sought to protect consumers against surreptitious advertising strategies such as product placements and paid endorsements. The U.S. First Amendment similarly tolerates heightened government regulation of commercial speech in the interest of consumer protection.

In commentary on the Mexican case, Daniel Villanueva-Plasencia at Baker Mackenzie wonders at the implications if the fact-opinion regulatory distinction were to escape the confines of telecommunication and find its way to the internet, where social media influencers, among other content creators, would come within its purview.

I do not mean to suggest that compulsory fact-opinion labeling is constitutionally unproblematic, or even viable, in U.S. First Amendment law. I do suggest that an approach to the misinformation problem beginning with audience rights and compelled disclosure, that is, with more information rather than less, is a good starting point for discussion.

The case is Centro Litigio Estratégico para la Defensa de los Derechos Humanos v. Presidente de la República, No. 1031/2019 (Sup. Ct. J. Nación 2021) (excerpt of opinion).

Star Trek's latest voyage to 'strange new worlds' charts a 'final frontier' evocatively close to home

"In Defense of Episodic TV," read the headline on a story by Associated Press journalist Ted Anthony last week about Star Trek: Strange New Worlds, Paramount's serialized prequel to Star Trek's 1960s Original Series.

Author of Chasing the Rising Sun (2007), the intriguing biography of a classic American song, Anthony lauded Strange New Worlds for what might seem like its mundanity (e.g., Miami Herald):

Members of the Enterprise crew on “Strange New Worlds” are living their lives. They’re doing their jobs, even when their jobs really suck—like when they lose one of their own or are under attack. Like us, they find themselves in different moods from episode to episode, from scene to scene. They’re silly one moment, crisp and efficient the next, emotional the next and then, maybe, silly all over again. It all feels more like the cadence of actual life than one of these deep dives into a single, relentless story arc.

I second Anthony's paean. Strange New Worlds is a peculiar joy. In its return to the episodic formula of the 20th century Original Series and Next Generation, and, indeed, a classic television formula that has given way to the predominance of the season arc in the streaming era, showrunners Akiva Goldsman and Henry Alonso Myers have reinvigorated the incomparable capacity of science fiction to comment critically on the real world through a veil of analogical fantasticism. Such was the original vision of Star Trek creator Gene Roddenberry (on this blog).

Strange New Worlds episode 5, "Spock Amock" (released June 2, 2022), beautifully exemplifies the episodic approach. (Plot details, but no story-end spoilers, follow.)

Paramount invested lavishly in Strange New Worlds, and it shows in elaborate sets and stunning special effects with epic space battles. "Spock Amock" subtly exhibits this investment, but action and suspense are not at the heart of the episode. Rather, "Spock Amock" is a deceptively low-key human interest story unfolding as the Enterprise crew go on shore leave. Frankly, such stories usually turn me off because, in the streaming era, they are the product of lesser writers seeking to fill time in unnecessarily multi-episode productions. That's not what's happening here.

This story by Myers and Robin Wasserman comprises three discrete lines. In one, Spock (Ethan Peck) and his fiancée T'Pring (Gia Sandhu) wrestle with a sometimes mildly comical Freaky Friday flip of consciousness; Number One (Rebecca Romijn) and Lt. Noonien-Singh (yes, she's related) (Christina Chong) investigate a ship disciplinary matter; and Captain Pike (Anson Mount) and Spock/T'Pring negotiate a treaty with frustratingly obstinate alien leaders. Without giving too much away, the striking theme that unifies all three story lines, in the end, is, simply, empathy. By interacting with the unknowable ways of other beings, every character is compelled to look inside her or his own mind, own character, and thereby to grow in the capacity to see the world from a different perspective.

The Enterprise never leaves space dock in "Spock Amock." Yet perhaps better than any other, the episode exemplifies her mission, to explore the strange new worlds of the final frontier. For it always has been true of Star Trek since its opening sequence first aired in 1966:

The final frontier is us.

Burgundian Liège Belgian waffles melt in mouth

The Burgundian, Attleboro, Mass.
(All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

Following up my post last week about an IP/contract battle between Massachusetts makers of Belgian waffles, I felt I should—nay, I felt I must, as an objective researcher in the savory social sciences—travel to the Burgundian of Attleboro, Mass., and sample the waffle products myself. I did so yesterday.

Burgundian's classy, European-esque interior

Alas, my investigation did little to draw me toward one conclusion or another on the merits of the case. But I can confirm that Shane Matlock's Burgundian waffles are the most scrumptious morsels of doughy goodness that ever have crossed my lips.

Chicken and waffles, the southern classic that I didn't know about before I married a Louisianan.
Yet I've never had it better, now, than here in New England.
Not pictured: my wife's burger and fries and a couple of local beers on draft.

 

"Banana churros" dessert at the Burgundian.
Yeah, that happened. I'm not proud.

As long as I'm confessing my sin of gluttony today, a shout out to a post-pandemic-new and exceptional establishment in my home state of Rhode Island, Hunky Dory in Warren. My wife confirms that this "southern-influenced celebration of New England" from dachshund Sherbert's parents Sam—himself of "southern mama and Appalachian dad"—and Bay Stater Joanna delivers on its promise.

The "veggie and sweet potato hash" feat. "smoked poblano crema,"
and a "basic brunch" at Hunky Dory, Warren, R.I.
We devoured "Mom's zucchini bread" before I could snap a picture.

The outdoor patio at Hunky Dory with its thriving vegetable garden

We can't wait to go back for dinner. Bon appétit.

State AGs back Mexico in suit against gun makers

Houston gun show in 2007 (M&R Glasgow CC BY 2.0 via Flickr)

In a pattern that has become familiar, the mass shooting in Uvalde causes us to check in on the various irons in the fire on gun liabilities.

The from-right-field lawsuit that most piqued my interest in the last year was that filed by the government of Mexico against American gun manufacturers over deaths in Mexico, Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc. (D. Mass. filed Aug. 4, 2021). In the culmination of a 139-page complaint, Mexico articulates causes including negligence, product liability, and nuisance.

The lawsuit is presently in briefing on defendants' motion to dismiss.

Especially interesting are Mexico's counts seven and eight, arising respectively under the Connecticut Unfair Trade Practices Act and the famously broad Massachusetts consumer protection law, chapter 93A. It was under the Connecticut law, as a claim over marketing, that courts allowed the Sandy Hook plaintiffs to work around the personal injury liability bar of the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA).

Though to be clear, Mexico's starting position is that the PLCAA doesn't apply anyway extraterritorially. In February, 14 state attorneys general, led by Massachusetts AG Maura Healey, briefed the district court on their agreement with that position (CNN), seeking to expose the gun-maker defendants to liability.

Gun maker Smith & Wesson, the named defendant in the case, was based in Springfield, Massachusetts, since 1852. In September 2021, Smith & Wesson announced plans to leave Massachusetts, amid pending legislation to limit the manufacture of assault weapons, for the friendlier venue of Tennessee (WCVB).

Tort-contract distinction cannot block damage multiplier, Mass. high court holds in lease dispute

Photo by Yonkers Honda CC BY-SA 2.0 via Flickr

A landlord may not rely on a limitation-of-liability provision in a commercial lease to evade a damage multiplier under Massachusetts consumer protection law, the Supreme Judicial Court ruled in January, regardless of whether the case is characterized as tort or contract.

The dispute arose between plaintiff-tenant Majestic Honda and its LLC landlord, owned by Alfredo Dos Anjos. Majestic accused the defendant of bad-faith lease termination, and the trial court agreed.

Massachusetts General Laws chapter 93A, under which Majestic brought its case, is a famously potent statutory remedy. Ostensibly its section 11 is a consumer protection law like any of the unfair trade practices prohibitions found throughout the states. But the statute has been read broadly in Massachusetts to operate at or beyond the margins of what lawyers usually regard as "consumer protection."

Moreover, section 11 authorizes double and treble damage awards upon "willful or knowing" misconduct. Massachusetts does not recognize punitive damages at common law, only by statute. Chapter 93A also has a four-year statute of limitations, sometimes an advantage to plaintiffs over the usual Massachusetts limitations period of three years for most tort actions.

Thus, as a result of permissive construction and powerful incentives for plaintiffs, chapter 93A is invoked frequently in what would be merely common law tort cases in other states, even to the exclusion of the common law claim in Massachusetts. Chapter 93A also is used in public enforcement, as in the Attorney General's present litigation to hold Big Oil accountable for climate change.

Tort and contract claims can be subsumed into the same 93A framework, blurring the classical distinction. The distinction is especially weak in product liability cases, in which Massachusetts plaintiffs almost always rely on 93A, in part because the commonwealth has recognized strict product liability as an extension of quasi-contractual warranty rather than as an evolution of common law negligence.

I am not a Massachusetts lawyer, and I am careful to disclaim to my 1L torts students that I am not well versed in 93A practice. It is its own field and cannot be folded into tort fundamentals. But, I admonish, they should endeavor to learn more if they intend to practice tort litigation in Massachusetts. My supremely talented colleague Professor Jim Freely once regularly taught a 93A course, but I don't think it's been offered since he was drafted (no pun intended) into the legal skills program.

Insofar as section 93A's damage multiplier is punitive in nature, it should not be disclaimable by a tort defendant, else the legislature's intended deterrent effect would be rendered moot. Upon this logic, the Massachusetts Appeals Court looked in past cases to discern whether the plaintiff's claim analogized more closely to tort or contract, to determine whether a limitation-of-liability provision should be allowed to nullify extraordinary statutory damages.

In fairness to the Appeals Court, the Supreme Judicial Court did roughly the same thing in 2018 when it applied a statute of repose for tort claims arising from real property to a 93A action, even though 93A itself has no repose period; three justices dissented from that ruling.

Here, the analogical approach is wrong, the Supreme Judicial Court decided unanimously. The court wrote, per Justice Scott Kafker, "Because G. L. c. 93A establishes causes of action that blur the distinction between tort and contract claims, incorporating elements of both, we do not adopt this formulation." The court further explained,

Our cases have also pointed out that a c. 93A claim is difficult to pigeonhole into discrete tort or contract categories, as c. 93A violations tend to involve elements of both tort and breach of contract, blurring the lines between the two. As we explained in [prior cases], "[t]he relief available under c. 93A is 'sui generis,'" being "neither wholly tortious nor wholly contractual in nature." Hence, a "cause of action under c. 93A is 'not dependent on traditional tort or contract law concepts for its definition.'"

After all, the court reasoned, the legislative intention to deter willful or knowing misconduct is not a function of whether the wrong is a tort or a breach of contract.

At a theoretical level, the vast gray area of 93A in Massachusetts law might have broader implications for the classical distinction between tort and contract, namely, whether the distinction will or should persist at all in contemporary common law. Massachusetts 93A practice might prove instructive as courts in many common law jurisdictions, such as Canada, reconsider the vitality of the so-called "economic loss rule," a historic marker of the tort-contract distinction that forbade tort actions in the absence of physical injury or damage.

The case is H1 Lincoln, Inc. v. South Washington Street, LLC, No. SJC-13088 (Mass. Jan. 24, 2022).

Student comparative law research spans sport, schools, drugs, recidivism, regs, copyright, crypto

He who learns teaches.

—widely cited as an Ethiopian or African proverb, the statement has parallels in other cultures and is sometimes paired with the Latin "qui docet discit," "he who teaches learns"

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Image by Gordon Johnson via Pixabay

Because we are reasonable people, we can all agree that Torts is the most important course in law school.

Comparative Law, however, takes the cake as the best course to teach. That's because one can teach it without exhaustive knowledge of the doctrinal subject matter. For no one knows the law of every jurisdiction in the world.

Thus, for me and my co-teacher, a supremely skilled embedded librarian, Comparative Law is a never-ending opportunity to learn from our students. And our students in spring 2022, as in past semesters, had plenty to teach us.

This is a selection of the ambitious paper topics that our Comparative Law students tackled in the spring.

United States, Vietnam. Firaas Z. Akbar, Free Enterprise Versus Freedom to Enterprise: A Comparative Analysis of Entrepreneurship Rights in the United States and Vietnam. Despite pronounced cultural and ideological differences between the republics of the United States and Vietnam, one of the goals shared by both societies is promoting entrepreneurship among their citizens. While not explicitly provided by the U.S. Constitution, free enterprise has impliedly been read into its language through a series of judicial decisions since the nation's founding, within a legal system where courts are bound to follow precedent. Vietnam enshrined a broad right to entrepreneurship into its constitution as part of an effort to transition to a more market-friendly economy. Yet constitutionalism under Vietnam's civil law system works differently, where rights require legislative substantiation to take effect. This analysis explores how Vietnam gives effect to this right and compares this model of promoting entrepreneurship to the U.S. approach.

United Kingdom (pre-/post- Brexit), Switzerland. Alessandro Balbo Forero, The Impact of Brexit on Football. There has been much debate and discussion regarding the UK exit from the European Union in 2020. Brexit had an impact on the sports industry as a whole, leading to debate and discussion by legal sport scholars on football, in particular, the English Premier League (EPL), and whether Brexit is good or bad. The unrestricted movement of players across the European Union is the catalyst for competition and player power. Prior to Brexit, players enjoyed the freedom of movement between EU Member States when their contracts expired. The current Governing Body Endorsement (GBE) requirements established after Brexit restrict player movement, and, thus, players are no longer able to sign with teams in the UK without first satisfying specific requirements that are tied to their respective countries' FIFA rankings. Although players are able to appeal to an exception panel, it is still not guaranteed to be granted a GBE. The Swiss model of player immigration would provide the UK with the best of both worlds. Brexit would still be in place, thus enjoying the benefits along with it, like unrestricted EU broadcasting regulations, and players would enjoy the freedom of movement once granted by the European Court of Justice in the Bosman ruling. The Swiss model satisfies both the FA and EPL, because highly qualified, homegrown players would continue to be produced while maintaining the multicultural, global product that is the EPL.

United States, England. Elizabeth Cabral-Townson, Using a Comparative Analysis of Special Education Disputes in the United States and England to Develop a Model that Better Serves Schools and Families.  Every country with a formal public education system has a responsibility to meet the needs of all enrolled students, including those with disabilities. Many countries have developed laws or regulations that describe their special education processes and procedures. In some instances, parents and school districts disagree about what a student with a disability requires to make progress in school. In these instances, there are several different dispute resolution techniques that can be an efficient way to resolve issues. Both the United States and England have developed laws and regulations specifically related to special education disputes. There are both similarities and differences to how the United States and England handle special education disputes, and elements from each country may be used to develop a more universal model. A preferred approach may be a consistently used three-tiered system that ensures the timely resolution of special education disputes using no-cost or low-cost options.

United States, Norway. Emma Clune, Prison Education as Means to Reduce Recidivism: A Comparative Analysis of the Effects of Prison Education Programs and Principles of Punishment in Norway and the United States. Access to prison education programs differs greatly between the United States and Norway. In the United States, prison education programs are not widely accessible due to issues such as lack of funding and resources. The programs that are available do not often prepare incarcerated persons for workplace environments after release. In Norway, where education is viewed as a fundamental right, all inmates are eligible to participate in education programs, and every prison facility provides access to academic and vocational programming. Norwegian prison education programs operate based on the "principle of normality," the idea that life inside prison should emulate life after release.  Research confirms that participation in educational programming while incarcerated reduces an offender's likelihood of recidivating by improving the offender's mental health and increasing the likelihood of employment after release. Emulating Norway's prison education programs and adopting the principles of Norway's penal system could be a means to reduce high recidivism rates and ultimately decrease the rapidly growing prison population in the United States.

United States, Canada. Judith Patricia Cruz Caballero, A Comparative Analysis of Refugee Law in the United States and Canada. The United States and Canada are world-leading nations for their international law policies. Refugees are a group of the population displaced from their home country due to war, discrimination, or violence. The United Nations created the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees to create a better humanitarian world. However, as the refugee crisis continue to increase over the next few years, the refugee policies of host nations will impact the support refugees receive. This paper examines refugees' procedures, immigration processes, and funding structures provided to refugees in both countries. In addition, the paper aims to compare each
nation's method of handling refugees in a time of international crisis. Finally, after analyzing each nation's policy areas, the paper provides recommendations to help increase the efficiency and effectiveness of refugee response in the United States and Canada.

Netherlands, Colorado. Ryan Gulley, Comparing the Legalization of Drugs in the Netherlands and Colorado: Recommendations for the Future. This paper compares the similarities and differences between the recent implementation of changes regarding drug use within the legal systems of the country of the Netherlands and the state of Colorado. The paper begins with a brief introduction to both systems. Following the introduction is a brief history of the criminalization of drugs within the two systems, as well as the reason for the changes that have been made in response. The current landscape of the legal systems will then be laid out, including where society stands today. I then examine the effects of those changes. The paper concludes by providing recommendations based on the lessons learned from the changes that were made in both areas.

United States, European Union. Austin Gutierrez, SOPA & PIPA vs. Article 17 "Directive on Copyright in the Digital Single Market." This paper compares the failed U.S. legislation, the Protect IP Act (PIPA) and Stop Online Privacy Act (SOPA), to the currently enacted Directive (EU) 2019/790, Directive on Copyright in the Digital Single Market, with a focus on Article 17. This paper goes through the history and then the past and current critiques of each legislation. This paper then creates a hypothetical bill using methodologies from both legislations. This paper has discovered that the current critics of U.S. online piracy protection believe that the U.S. should legislate in favor of website blocking. The EU critics believe that the authorization requirement establishes a mandatory requirement of general monitoring, which may be too much of a request from the website owners. In conclusion, this paper decides that it is in the best interest of the United States to let other nations develop and test online piracy protection while protecting current copyright holders through the use of website blocking for piracy focused websites. 

United States, China, Germany. Christopher Hampton, Comparative Analysis of Crypto Assets/Blockchain Regulation Between PRC & Germany to Form a Spectrum Based Guide for Impending U.S. Regulations. Crypto-assets and blockchain technology have created an array of regulatory responses globally, most of which address the risks associated with illicit activities, consumer protection, and financial stability. The choice of fitting crypto into traditional frameworks, modifying existing regimes, or forming bespoke regulations to address these risks inherently creates strategic variations across the board. However, this range of approaches creates a guiding spectrum for late movers, namely the United States, to survey during impending crypto-asset deliberations. By synthesizing Germany's and China's leading, yet antithetical, approaches to the same priorities, this paper reveals both sides of the spectrum (i.e., acceptance v. full ban), details how the respective strategies address the given concerns, and weighs perceived strengths and weaknesses of their enactments. Further, upon consideration of the United States' current regulatory uncertainty and objectives, recommendations are proffered in promotion of sustainable growth and innovation for the industry. Although the collective knowledge necessary for proper regulations is not solely within this analysis, adequate and sustainable decisions can only be made through considerations as equally expansive and flexible as the emerging industry of focus. Similarly limited, policymakers would be prudent to include market participants in their deliberations and promote international teamwork. Ultimately, regulatory clarity is necessary in any regard for the industry to truly evolve, though the path of evolution depends heavily on U.S. decisions. 

Germany, Russia.  Nicholas Hansen, A Comparative Examination of Environmental Regulatory Policy Models in the Federal Republic of Germany and the Russian Federation. Regulation of the economic activities of any sovereign nation can be foundational in determinations of status, power, and recognition in modern geopolitics. In modern environmental regulation theory, two primary characterizations of economic regulations are found. This analysis compares the use of "process-integrated" environmental policy, to the use of "end-of-pipe" environmental policy, and their relative benefits and hindrances. Process-integrated regulatory policy involves a more direct intervention in production processes and business action, whereas end-of-pipe regulatory policy involves the establishment of penalties for businesses that exceed their allotted carbon output, and violate industrial or automotive emission laws.  These policies have disparate impacts on the economic health of the sovereignties in which they are employed, differing levels of legal security for businesses operating in these sovereignties, and these impacts have been modeled and cataloged in this article.

This author posits that the time-frame around which either model is implemented, and the substantive form of these model regulations have an indirect impact on the long-term economic growth and propensity for foreign investment.  This hypothesis is most principally demonstrated by a comparative examination of the "process-integrated" model presently in use by the Federal Republic of Germany, and the "end-of-pipe" model presently in use by the Russian Federation. This article seeks to explain the characterization of the German and Russian regulatory models as an "end-of-pipe" or "process integrated" model and the statistical and legal evidence that supports this conclusion. In addition, Explanations of the German and Russian environmental regulation and their relative impact on the economic health and growth of their respective sovereignties are given.

Israel, Palestine. Rachel Kilgallen, The Unique Legal Systems of Israeli Settlements. The Israeli-Palestinian conflict is one of the world's most enduring conflicts, the Israeli occupation of the West Bank and the Gaza Strip reaching 55 years. Within Israeli settlements, where Israelis and Palestinians must coexist, an abounding number of controversies have arisen. One such controversy revolves around the legal system adopted within these settlements. Upon Israel's occupation of the West Bank and Gaza (along with the Sinai Peninsula and Golan Heights) in June 1967, the Israeli military immediately established military courts in both territories in order to try offenses harming security and public order. Technically speaking, Israeli military and civilian courts hold "concurrent" jurisdiction to try Israelis for offenses related to security. The policy for the last four decades, however, has been to refrain from prosecuting Israeli civilians in the military system, despite critiques that doing so constitutes partial annexation of occupied territory. The result is that Israeli and Palestinian neighbors accused of committing the very same crimes in the very same territory are arrested, prosecuted, and sentenced in drastically different systems—each featuring staggeringly disparate levels of due process protections. The International community seems to be in concurrence that Israel's actions regarding its settlements violate international law on many levels. At this point in time, all measures taken against Israel, in consequence, have been in vain. The longstanding conflict between Israel and Palestine endures.

United States, Germany. Samantha Rapping, The Psychological Toll of Being Prosecuted as an Adult: A Comparative Analysis of Juvenile Prosecution and Incarceration in the United States and Germany. The United States has one of the most complex criminal justice systems, which significantly differs from other systems in the world, specifically Germany. One prominent difference between these two countries is how they handle juvenile offenders. The United States focuses merely on punishment and incapacitation, whereas Germany focuses on education and rehabilitation. As a result of the harsh treatment that juvenile offenders endure, such as frequent sexual and physical abuse, their mental health severely plummets. Juveniles are at a higher risk for suicide, depression, and anxiety. As a consequence, juvenile offenders are likely to re-offend post-release. Germany’s recidivism rates are extremely low as a result of the educational approaches and opportunities that are available to juvenile inmates such as therapy, metalworking, farming, etc. The positive reinforcement that occurs while juveniles are incarcerated leads to an increase in a juvenile inmates overall attitude and positive outlook for the future. The United States should adopt Germany's educational approach to its juvenile offenders.

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Students: If you spy any errors here, don't hesitate to contact me for correction. If you were in this class and I failed to include you here, that's because I don't have an abstract from you. Please send one, and I'll be happy to add it.

Publishers and employers: Contact me if I can help put you in touch with any of these promising law students, some of whom are now recent grads!

Flags from Flagpedia.net.

Judge excoriates city in public records row

Worcester, Mass., City Hall
(Mass. Office of Travel & Tourism CC BY-ND 2.0 via Flickr)

In a remarkable opinion in January 2022, the Massachusetts Superior Court excoriated the city of Worcester, Massachusetts, for failure to comply with a newspaper's public records request investigating police misconduct.

In 2018, GateHouse Media, owner of the Worcester Telegram & Gazette and a subsidiary of Gannett, filed a Massachusetts freedom of information act (FOIA) request for files related to investigations of Worcester police in civil rights matters. The Telegram's interest was spurred by Worcester attorney Hector E. Pineiro, who was upset by police interaction with his son.

The city resisted production of the records because, it argued, they were part of ongoing litigation involving police officers. The Massachusetts FOIA has no litigation exemption per se, but officials shield some records under the deliberative process exemption, relating to policy positions still in development. The city grossly over-relied on that strategy, the court concluded in June 2021 after a rare FOIA trial.

GateHouse Media persisted with its case even after shaking lose the records, demanding that the city be permanently enjoined from similar baseless argument in the future and be charged with punitive damages. In January, the Superior Court, per Justice Janet Kenton-Walker, substantially sided with GateHouse, finding that the city had acted in bad faith and needlessly protracted the litigation and costs for years.

Not only did the city rely erroneously on the text of statute, Justice Kenton-Walker opined, it "cherry-picked certain language from ... cases, taking it out of context." And the city had an ugly history with the same issue. The court explained:

[T]he court cannot ignore that [the city] originally took [its] position in spite of the fact that the city was one of the parties to, and thus aware of, Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester (Mass. App. Ct. 2003). In that case, the Appeals Court held that materials in a "Worcester police department internal affairs file ... compiled during an investigation of a citizen complaint," were public records. That court stated explicitly that "[i]t would be odd, indeed, to shield from the light of public scrutiny as 'personnel [file] or information' the workings and determinations of a process whose quintessential purpose is to inspire public confidence" (emphasis added).

The court declined to award an injunction, reasoning that the threat of litigation should provide sufficient deterrence. "Simply put, the court expects the city to follow the law now and in the future," the judge wrote.

But the court did order the city to pay $5,000 in "punitive damages." That's at the top of a range allowed by state law when public officials act in bad faith. The money goes to the state Public Records Assistance Fund, rather than to the plaintiff.

According to the Telegram in February, Pineiro said that "he believes the city fought 'tooth and nail' to avoid producing the records because it did not want the public to see a police internal disciplinary process he labeled a 'sham.'"

The city wrote in a statement, the Telegram reported, that it would "move on" and not appeal.

The case is GateHouse Media, LLC v. City of Worcester, No. 1885CV1526A (Mass. Super. Ct. Jan. 26, 2022).

Qatar drops beIN sport piracy claim as World Cup nears

Sideline interview with beIN
(Ronnie Macdonald CC BY 2.0 via Flickr)

Qatar withdrew its complaint in April in the World Trade Organization against the Kingdom of Saudi Arabia (KSA) over piracy of Qatari beIN Media Group sport broadcasts.

I wrote about this dispute in May 2020. A pirate outfit cheekily called "beOutQ" was rebroadcasting beIN content in the KSA without a copyright license. Riyadh disclaimed responsibility. But there was little doubt that the Saudis at least looked the other way, if not sponsored the piracy, as the two nations were locked in a tense diplomatic standoff and Qatar was isolated by a regional embargo. Read more background from James Dorsey.

Now World Cup 2022 in Qatar is focusing global attention on the Middle East. Neither nation stands to gain from negative publicity, least of all heightened attention to human rights issues (see Dorsey this week), so Qatar and the KSA are trying to work past their differences. They both joined a statement of the Gulf Cooperation Council signed at al-Ula after a summit in January 2021 (Middle East Institute analysis), and they have been working through the implications since. BeIN has broadcast rights to the World Cup, so setting to rest that piece of the dispute made the agenda.

Alyssa Aquino wrote further analysis of the Qatari withdrawal of the WTO complaint for Law 360 in April. The matter in the WTO was No. WT/DS567/11 (terminated Apr. 25, 2022).

'Sudanese Bubba' will show you Sudan

You might not even remember it, but for a short time in the fall of 2020, we thought the pandemic was over. We were just too cute.

Wrong as we were, I went to Sudan then. And there I met a spectacular person called Salma EL-Sheikh, who smoothed my way around the country.

Well Salma is doing her part to drag the world kicking and screaming out of the pandemic, and she now has her own tourism company, Sudanese Bubba. The name "comes from our Sudanese jewelry (Gamar Bubba), moon–shaped golden earring (Gamar Boba)," Salma explains. "Kind of earrings women used to wear at the ancient time, until this moment."

I receive absolutely nothing but a karmic re-balance when I tell you, Salma has my absolute and unqualified recommendation.

Local kids atop Jebel Barka (CC BY-NC-SA 4.0 RJ Peltz-Steele)

Sudan is a stunning place. Its pyramids and ancient sites are magical. You will find yourself scrambling up and over remote dunes to see the next marvel with a feel of wild intimacy that is unknowable in well trampled tourist traps (I'm lookin' at you, Cairo).

Sudan likewise offers a fascinating ethnographic and political experience. Its pioneering efforts to mix Islamic and western law into a republican formula, and its fraught relationships with neighboring South Sudan and Ethiopia all amount to a nation that is very much a work in progress. 

For all the range of experience on offer, my fondest memory is sitting with friends and locals on crates in a Khartoum street at the serving station of "our tea lady."

Let Salma help to make your memories of Sudan!

Me and my mates on the road in Sudan (CC BY-NC-SA 4.0 RJ Peltz-Steele)

 

Belgian-waffle makers battle over whose doughy goodness won pride of place on Oprah's list

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Two Massachusetts business are embroiled in a mouth-watering lawsuit over waffles and Oprah.

Oprah's 2021 "favorite things" featured "Eastern Standard Provisions Gourmet Liège Belgian Waffle Gift Box." Yum.

Eastern Standard Provisions is based in Waltham, Mass., and lists its "Classic Liège Belgian Waffles" for sale online. Here's the pitch:

Our artisanal Classic Liège Belgian Waffles are crafted with real butter and pearl sugar imported from Belgium for a light, sweet crunch. Our Classic Liège Belgian Waffles are different than other waffles you may be used to. Most waffles are made with batter, but our Classic Liège Belgian Waffles are made from dough delivering a soft, brioche-like texture and a one-of-a-kind waffle experience.

This is not Eastern Standard's Oprah debut. Its "artisanal soft pretzels" made the grade in 2019.

But wait. Based in Attleboro, Mass., the Burgundian gourmet street-food brassiere claims in a lawsuit (via WCVB) that Oprah picked Burgundian waffles for the list, because Eastern Standard ripped off the Burgundian recipe it had learned under a non-disclosure agreement when the two explored a co-branding venture.

According to the lawsuit, Burgundian founder Shane Matlock learned how to make the Liège waffles while serving in the U.S. Army, when, for three of 15 years, he was stationed on the France-Belgium border, and, the Burgundian website says, he premiered the waffles in Providence, Rhode Island (my home state, near Attleboro) in 2017.

All I know for sure is that I now have a craving for waffles.

The case is The Burgundian LLC v. Hawthorne Food Co. (Mass. Super. Ct. Suffolk Dep't Bus. Litig. Sess. filed Feb. 3, 2022).  The plaintiff alleges, inter alia, breach of contract, violation of state trade secret law, passing off, false advertising, and unfair trade practices.