Assange defense group plans Boston/online panel

In connection with Student Press Freedom Day, featuring nationwide virtual events, Boston Area Assange Defense will host a live and streaming program on Thursday, February 23, 6:30-8:30 p.m., on the prosecution (persecution?) of WikiLeaks information activist Julian Assange.

Accused of hypocrisy, the Biden Administration still seeks Assange's extradition from the UK to face charges of espionage in the United States. Assange presently is appealing approval by the British home secretary of the extradition request.

Having co-founded WikiLeaks in 2006, Assange long advocated for absolutism in the freedom of information. But when WikiLeaks received a trove of records from U.S. soldier Chelsea Manning, Assange did enlist the help of journalists to filter the material for public consumption in an effort to protect people, such as confidential informants whose lives would be at risk if they were named as collaborators with western forces.

Nevertheless, the subsequent publication of records in 2010 and 2011 outraged the West.  The records included secret military logs and cables about U.S. involvement in Iraq and, as Al Jazeera described, "previously unreported details about civilian deaths, friendly-fire casualties, U.S. air raids, al-Qaeda’s role in [Afghanistan], and nations providing support to Afghan leaders and the Taliban." Especially damaging to western interests was a video of arguably reckless U.S. helicopter fire on Iraqis, killing two Reuters journalists.

Manning was court-martialed for the leaks. President Obama commuted her sentence in 2017.

Thursday's program is titled, "The Future of Gen Z Journalism Depends on Julian Assange's Freedom." From Boston Area Assange Defense, here is the description.

Boston Area Assange Defense invites you to attend a panel discussion on how the U.S. prosecution of Julian Assange impacts the future of journalism. This event is part of the Student Press Freedom Day 2023 initiative: "Bold Journalism/Brave Advocacy." 

The reality is that "Bold Journalism" has landed Julian Assange in a supermax prison for publishing the most important journalistic work of this century. Our First Amendment rights are threatened by this unconstitutional prosecution of a journalist and gives the US government global jurisdiction over journalists who publish that which embarrasses the US or exposes its crimes.

Prestigious international lawyer Prof. Nils Melzer (appointed in 2016 as UN Special Torture Rapporteur) authored, The Trial of Julian Assange, A Story of Persecution. The book is a firsthand account of having examined Assange at Belmarsh prison and having communicated with four "democratic" states about his diagnosis of Assange exhibiting signs of persecution. He wrote, "I write this book not as a lawyer for Julian Assange but as an advocate for humanity, truth, and the rule of law." "At stake is nothing less than the future of democracy. I do not intend to leave to our children a world where governments can disregard the rule of law with impunity, and where telling the truth has become a crime." Melzer stated, "If the main media organizations joined forces, I believe that this case would be over in ten days."

Boston Area Assange Defense platforms this experienced panel of journalists for a lively conversation about the Assange prosecution, its threat to journalism and the rule of law. Also, a short video clip narrated by Julian Assange's wife will be streamed for informational and discussion purposes.

Students and citizens alike are entitled to a free press so that we can make informed decisions.

A free press is the cornerstone of our democracy.

We must fight against censorship and the criminalization of journalism.

We must show "Brave Advocacy" to end the prosecution of Julian Assange!

Please join us February 23rd for this important "Bold Journalism/Brave Advocacy" event.

Students are invited so kindly share this event with your students!

Online Zoom link. 

Community Church of Boston's YouTube. 

People will also gather at the Community Church of Boston, 565 Boylston St., near Copley Square.

An Assange information table will be set up with literature and petition to MA senators. Boston Area Assange Defense will be present to answer questions....

Guest speakers:

• Jeremy Kuzmarov, Author and Educator, Managing Editor, Covert Action Magazine 
• Esther Iverem, Journalist, Producer, Radio Host, "On the Ground: Voices of Resistance from the Nation's Capital," nationally syndicated on the Pacifica Network
• Sam Carliner, Journalist; Sam's Jan. 2021 article covering the Dept of Justice DC rally during Assange's extradition hearing
• Tarang Saluja, Student, Activist, Journalist

Rule of law depends at least in part on how we teach

Differences in legal education between civil law countries and the United States—and analogous divergence in priorities in the American law school classroom—might have ramifications for the rule of law.

Prof. Vernon Palmer leads an Obligations I class.
Tulane Public Relations via Wikimedia Commons CC BY 2.0

Legal education in the United States and in the civil law countries of Europe are famously different. The American model is identified with case law, the Socratic method, and inductive reasoning. The civil law model is identified with code, lecture, and deductive logic.

Both sides have plusses and minuses, and that might be why, in recent decades, we see signs of change and convergence. American legal education has sought to marginalize the traditional model to one strategy on a menu of effective pedagogies. Meanwhile, many schools in Europe have sought increasingly to import the "Paper Chase" style of classroom engagement.

Teaching periodically in Poland for more than 15 years, I've found students delightfully receptive to the classroom experience that U.S. law students take for granted. I'm inclined to conclude, generalizing of course, that the way U.S. law professors interact with students has the potential to contribute valuably to education in Europe, where lecture still predominates. My U.S. students tend better than their European counterparts to develop forensic skills and to use analogical reasoning.

At the same time, I have found, generalizing again, that my students in Europe are better versed than their American counterparts in the history and philosophy of law. Their understanding of context is informed by a storied Latin vocabulary. They are better able to convert memorized knowledge to application.

There is no doubt that the way law schools teach has an impact on how lawyers work and think about the law. What's less clear is the extent to which this impact represents a normative social advantage—for example, better preparing lawyers to protect human rights and uphold the rule of law.

In recent years, Europe has been struggling with rule-of-law crises in central and eastern Europe. In particular, populist movements embodied in the Duda and Orbán regimes in Poland and Hungary have given rise to disputes over judicial independence. In a similar vein, the Romanian legislature enacted judicial reforms in the late 2010s. 

Ostensibly, the Romanian reforms were implemented to combat corruption. But that's not how Brussels saw it. The reforms wound up before European Union courts, culminating in judgments in 2021 and in 2022. The 2021 judgment of the Grand Chamber has been well regarded as outlining a progressive tolerance for the development of the rule of law while affirming EU supremacy ("primacy") in constitutional law for matters within the union prerogative.

Unfortunately, Romanian resistance to that supremacy caused the Grand Chamber to revisit the problem last year. Notwithstanding the proceedings in European courts, pro-reform domestic authorities and the constitutional court of Romania had upheld the reforms. Authorities moreover asserted that lower court judges could be subject to discipline for testing Romanian constitutional court rulings against the requirements of EU law.

The Grand Chamber held in 2022 that "ordinary courts of a Member State" must be permitted "to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law"; and that domestic judges may not be disciplined for "departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law."

At the meeting of the General Congress of the International Academy of Comparative Law (IACL) in Asunción, Paraguay, in October, a panel on rule of law examined national reports from 16 countries, including the United States, Poland, Hungary, and Romania. I found especially compelling remarks by the rapporteur for Romania. (I'm sorry that I did not get the rapporteur's name; it does not appear in the composite issue report.)

Law professors everywhere, laudably, want their students to be prepared for any job, the rapporteur said. But European students feel they're trained as if to become judges. Roman heritage, Roman law, he said, is sacred. Motivated to prepare students to do legal reasoning, he said, European law professors train students that there is "only one correct meaning," "one true meaning" of a text, and the students, in turn, "become very formalistic." 

Often, he said, judges then "miss the point" by "applying law automatically." And that was the problem, he opined, with the Romanian constitutional court in upholding the judicial reforms. The court reasoned, he explained, that because rule of law exists in both the Romanian constitution and EU treaties, the court "blindly" concluded that Romanian law comports with EU law. "False," he said; "it's the way in which we teach."

In other words, the Romanian judges assessed black-letter law for comportment with black-letter law without digging beneath the surface. They were ill equipped, or declined, to look beyond formalism to test the law functionally. Moreover, by shielding the constitutional court's analysis from further interrogation in the lower courts, top jurists were excessively insistent on the exclusivity of their prerogative: one true meaning.

I don't know enough about the situation in Romania to assess the merits of the Romanian position, or the EU position, or the perspective of the rapporteur. But I was intrigued by his parting thought:

"I'm astonished," the rapporteur said, that "in the United States, you practically criticize law professors that they don't tell you the true meaning. It would be a pity to change that."

As I wrote recently, law professors in the United States are under great pressure to abandon traditional teaching methods in favor of bar prep and skills readiness. Law schools such as mine place little value on policy, theory, and moral deliberation, but prize memorized law and practice skills. The latter are valuable, to be sure. But it's the former that make law a profession and not mere occupation. 

Prioritization of occupational objectives pressures professors to abandon the traditional teaching strategies of the American model. Cases give way to code, or rules. Inductive reasoning gives way to deduction. Socratic dialog gives way to PowerPoint outlines, recall games, and lectures. This is convergence of a sort. It's not a good sort.

I don't contend that the traditional model of legal education in the United States is superior to other models. Nor would I enshrine the case method to the exclusion of a multitude of teaching strategies. But American legal education in the 20th century excelled at preparing lawyers to turn problems over and examine them through many lenses.

If we do our job right, law professors create a space for creativity to thrive. That creativity defines law as a profession. And only as professionals can lawyers safeguard the rule of law.

It would be a pity to change that.

Me and my mate Octavio Sosa in Paraguay. A first-year engineering student, he plays a mean guitar.
RJ Peltz-Steele CC BY-NC-SA 4.0

 

Judge teaches, supports professional development by encouraging appearance of junior attorneys

In multi-district civil antitrust litigation over turkey prices, a federal magistrate judge in Illinois in the fall issued an unusual order, calling on litigating firms to designate only junior attorneys to argue motions.

Pending before the court at the time were three pretrial matters, a discussion of expert testimony, a motion to preclude a deposition, and a motion to amend a scheduling order. On October 20, 2022, Magistrate Judge Gabriel A. Fuentes wrote:

[T]he Court would like to offer junior counsel an opportunity to speak to the expert discovery issue and to argue the two motions. The Court strikes the [planned telephonic] hearing and resets it to [Nov. 1,] when there will be ample time to address all three issues. If the parties do not indicate that they will permit junior associates to argue the motions, the Court will hold the hearing telephonically on the expert discovery issue only and will decide the two motions on the paper submissions.

The Court kindly requests that the parties confer and notify the courtroom deputy ... whether counsel with less than four years of experience after law school will be permitted to speak and argue; ideally, different counsel would argue the two different motions for the arguing parties. Also, multiple junior counsel could divide a party's arguments on a single motion if it makes logical sense to do so. Senior counsel of course may and should attend in a supervisory role and will be permitted to add or clarify as they see fit.

No inferences should be drawn about the importance of any motion to the Court based on the Court's attempt to create professional development opportunities for junior counsel. Additionally, the status hearing on the expert discovery issue strikes the Court as one that could be addressed by junior counsel.

(Paragraph breaks added.)

Judge Fuentes has served on the bench for almost four years, since May 2019. Before his appointment to the bench, Fuentes was an accomplished lawyer, and before law school, an accomplished journalist.

Fuentes wrote news and sports for local papers as a secondary-school student, and he worked his way up to managing editor of the Daily Northwestern while at the Medill Journalism School. He worked for four years as a reporter for The Los Angeles Times before going back to the Northwestern Pritzker Law School. After six years as an attorney associate, Fuentes made partner at Jenner and Block; left to serve about five years as an assistant U.S. attorney; then returned to Jenner and Block for 13 more years.

While practicing as a litigator in white collar defense, antitrust, and media law, Fuentes maintained a heavy docket of pro bono practice. In 2015, the Chicago Bar Foundation recognized his work "on indigent criminal defense, prisoner rights, the protection of voting rights for minorities, and First Amendment issues." In particular, Fuentes never stayed true to his journalistic roots, for example, once negotiating with counsel for Western University Illinois University on behalf of a student investigative journalist.

Being also a product of journalism and law schools, and likewise having represented student journalists pro bono, I identify with Judge Fuentes's experience. More importantly, as a law professor, I appreciate Fuentes's initiative to help new attorneys in big-law practice to get real forensic experience. 

Much of what is wrong with legal education today can be traced to the bean-counter orientation of administrators, universities, and the American Bar Association as accreditor, all of which are more concerned with bar pass statistics, superficial diversity, and, above all else, revenues, than with whether students actually learn anything worthwhile or grow as moral actors. Yes, law schools do care about making students "practice ready," but that only because the bar, unlike the medical fraternity, has shirked its historic responsibility to teach. The responsibility has devolved wholly on law schools, where practical skills training has all but supplanted the policy, theory, and moral deliberation that are supposed to make law a profession rather than mere occupation.

Fuentes has counseled students at Medill and taught adjunct at Pritzker, so he's kept a hand in the classroom, too. I don't know Fuentes. But to me, his apparent ability to synthesize his career experiences into simultaneous roles of servant and mentor represents the very model of professional identity. His minute order entry of October 20 should be the norm, not a headline.

Judge Fuentes ruled on the motions on November 9, and entered into the record: "The Court extends its thanks to the parties and counsel for allowing junior associates to argue and address these matters, and the associates are commended for an excellent performance."

The underlying case is In re Turkey Antitrust Litigation, No. 1:19-cv-08318 (N.D. Ill. filed Dec. 19, 2019). HT @ Adrian Cruz, Law360.

Events endeavor to empower student journalists

The Student Press Law Center and partner organizations are sponsoring Student Press Freedom Day on February 23, 2023.

A number of virtual educational events are open to the public:

• Public Records Workshop with the Foundation for Individual Rights in Education (FIRE);
• Roundtable: FIRE Defends The Commonwealth Times, a student newspaper at Virginia Commonwealth University, with FIRE;
• Fighting for Press Freedom: How To Be an Advocate for Student Journalism with the Student Press Law Center (SPLC) and the National Coalition Against Censorship;
• Agency in Student Literary Publications with the National Council of Teachers of English and National Scholastic Press Association;
• Student Press Trivia Night with FIRE, the Freedom Forum, and the SPLC;
• FOIA Workshop with the Electronic Frontier Foundation (EFF);
• Refusing Censorship: A High School Newspaper's Fight for Student Press Freedom, featuring adviser Adriana Chavira of the The Pearl Post at the Daniel Pearl Magnet High School in Los Angeles, with PEN America, the First Amendment Coalition, the National Association of Hispanic Journalists, and the SPLC;
• Student Press Briefing: Impacts of School Surveillance with the Center for Democracy & Technology;

There also are pre-recorded events on school media policies, op-ed writing, and student press freedom.

Many moons ago, I had the privilege of interning at the Student Press Law Center when I was a law student, and then of representing student journalists pro bono when I was in practice in Maryland. Censors never tire, so there is always opportunity for practicing attorneys to engage with this rewarding and challenging work.

HT @ the Free Expression Legal Network (FELN).

Bank battles liability for client's pyramid scheme

The federal district court in Massachusetts has continued in recent months to resist Bank of America efforts to extricate itself from allegations of complicity in a pyramid scheme.

The liability theory working against Bank of America (BoA) in the Massachusetts litigation is a theory of ancillary, or secondary, liability.  I'm fond of ancillary liability theories, which put on the hook not just the actor that most directly injured a plaintiff, but the actor's compatriots.

MLM
by Zainabdawood77 via Wikimedia Commons CC BY-SA 4.0

The myriad ways an injured plaintiff can add defendants to a civil claim improve the plaintiff's odds of recovery. So it behooves the plaintiff attorney to think creatively about ancillary liability. Correspondingly, it behooves the defense attorney to be on guard.

A plaintiff can be especially in need of better odds when a principally responsible defendant acted criminally, because criminal defendants tend to come up short on money to right wrongs. Ancillary liability theories in cases of financial crime are especially compelling, because perpetrators of fraud, before they're apprehended, tend to live large on their proceeds and then declare bankruptcy.

Think Bernie Madoff. His wild ride merited a thrilling fictionalization starring Richard Dreyfuss and still drives public interest with a new docuseries on Netflix. That his victims tended to be wealthy adds a sweet note of schadenfreude for American viewers, the vast majority of whom are trapped on the wrong side of the wealth gap.

That same schadenfreude thirsts for the diffusion of liability to more defendants. Plenty of corporations, namely banks and investment firms, and their directors and officers, leached wealth off schemes such as Madoff's, but bear no liability to victims. Ostensibly, these earners did nothing wrong. They merely engaged in lawful business.

Overlay that dynamic on financial opportunism that victimizes ordinary people, and the thirst for accountability becomes about more than schadenfreude. Financial disasters such as the savings-and-loan crisis of the 1980s and the housing crisis of 2008 infused the public with burning resentments that still smolder in the wreckage of the American dream.

In these crises, people were victimized by risks that enterprise externalized while providing no corresponding benefits. When the civil justice system fails to recognize a wrong in the infliction of such losses, we can expect the very insults to the social fabric that the system is supposed to prevent: more wrongdoing, diminished confidence in public institutions, and, ultimately, vigilantism by the afflicted.

Ancillary liability rides to the rescue. Two liability theories are especially useful in cases of financial fraud: "conspiracy" and "aiding and abetting." Those imprecise terms are useful to convey the essence of it, but the civil theories should not be confused with their criminal counterparts, which give rise to the terms.

More accurate descriptions in civil terminology are, respectively, "common design" and "substantial assistance or encouragement." When a principal defendant cannot be held to account, a plaintiff may demand compensation from a co-defendant that participated in a tortious common design with the principal, or from a co-defendant that knowingly substantially assisted or encouraged the principal in accomplishing a tortious objective.

The availability of conspiracy and aiding-and-abetting liability theories in common law business torts is not settled and not without controversy. The commercial defense bar naturally regards theories derived from personal injury law as ill suited to business torts, in which harms are only economic. Commercial actors are expected to safeguard their own interests to some extent in commercial transactions, more than a person exposed to risk of physical injury. Compensating economic loss is not regarded as socially imperative as the making whole of injured persons. The issue offers a window into a broader debate over whether business torts are torts at all, or, rather, a form of common law market regulation. We can leave that question on the shelves of academia for now.

In multi-district litigation pending in the U.S. District of Massachusetts, plaintiffs allege that Bank of America, among other defendants, substantially assisted or encouraged a pyramid scheme, or, more precisely, a "multi-level marketing" scheme (MLM), in the provision of commercial banking services. Bank of America (BoA) vigorously denies the allegations. In August 2022, the court refused to dismiss BoA, finding the allegation of ancillary liability sufficient to warrant discovery. The court has refused to undo its ruling upon motions for reconsideration since.

The principal defendant in the case is Telexfree, a transnational company with U.S. headquarters in Massachusetts. Having started up in 2012, the multibillion-dollar enterprise was an MLM that enlisted "promoters" to sell voice-over-internet-protocol telecommunication services. For a deeper dive into the rank turpitude of MLMs, check out comedian John Oliver's classic treatment in 2016. True to form, after only a year or two, Telexfree collapsed in bankruptcy under pressure from regulators in various countries, especially the Securities and Exchange Commission in the United States and authorities in Brazil. Private civil suits followed.

There is no question that banks such as BoA literally "substantially assisted or encouraged" Telexfree in its illicit enterprise. A company, even an MLM, needs banking services. The tricky part, though, for plaintiffs successfully to allege tortious aiding and abetting, is to show the ancillary defendant's knowledge of the principal defendant's tortious objective. BoA denies that it knew what Telexfree was up to.

Such denials usually fly. Banks at least purport to do business at arm's length. That impression accords with the experience of the average consumer; we don't imagine bankers poring over our checking accounts to second-guess our spending. And there's a sound argument in public policy that banks should not be held liable for the misdoings of their clients. Imposing weighty responsibility on banks, at best, would slow down commerce, and, at worst, could render capital inaccessible, paralyzing the marketplace. 

At the same time, banks with large commercial clients, in fact, routinely do business at much less than arm's length. Banks may well scrutinize clients, indeed may be fiduciarily obliged to scrutinize clients, if their business will place large amounts of capital at risk. Accordingly, the pleadings in Telexfree indicate that BoA worked closely enough with Telexfree executives to know what they were up to.  Indeed, plaintiffs allege that at least one BoA executive voiced concern that Telexfree's business model was not legal, and evidence suggests that BoA closed at least one account for that reason.

Upon the pleadings, then, the district court ruled that BoA had enough "red flags" to know what Telexfree was up to. BoA objected, and the court conceded, that red flags do not equate to the actual knowledge required for aiding-and-abetting liability. But red flags are evidence enough to allow plaintiffs to dig deeper in discovery, the court concluded.

The ruling has caused some angst in the commercial sector, for fear of the slippery slope of bank liability. I respect the worry, but I welcome the court's fresh take and willingness to rebalance the equities in financial fraud. Madoff was a compelling curiosity, and I don't have much sympathy for his high-roller investors. But more troublesome in America are recurring financial crises that seem only to exacerbate wealth disparity. And at the transactional level, MLMs and their like continue to run rampant, defying regulators and bilking not just high rollers, but ordinary people. 

The rabble is restless, as accountability runs thin. Regulators, whether wearing black robes or bearing pointy heads, had better start noticing.

The case is In re: Telexfree Securities Litigation, No. 4:14-md-02566 (D. Mass. received Oct. 22, 2014). HT @ attorneys Anthony D. Mirenda, Leah Rizkallah, and Nick Bergara of Foley Hoag LLP, writing for Mondaq.

Americans chase dream of air passenger rights, while EU consumer protection reaches age of majority

Boarding a flight in Ilorin, Nigeria, in December 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

A Savory Tort Investigation

The Christmastime Southwest meltdown has prompted tongue wagging in Congress over a "Passenger Bill of Rights" to redress the radical imbalance of market power that has left Americans at the mercy of an oligopolist airline industry for decades.

Don't get your hopes up. In the United States, airlines have been playing cat and mouse with regulators since the mail took to the air in the 1920s. And the cat has never been enthusiastic about the chase. 

Passenger protection from exploitative practices in the airline industry has been a congressional dog whistle since overbooking became a business model in the 1960s. Ralph Nader took on the issue, along with so many others, in the 1970s. We've swung back and forth between transparent pricing and the piling on of surprise fees enough times to make you use your sick bag. Over the years, more passenger bills of rights have died in Congress than we have airlines. Well, that's a low bar, but you take my point.

As in all things when corporatocracy clashes with simple equity in the marketplace, the European Union is doing a better job than the United States to level the playing field. The crown jewel of more robust European consumer protection is Regulation 261/2004, which has been on the job for almost twenty years. When flights are delayed or canceled, EU 261 requires compensation to customers in cold, hard cash.

The circumstances that lead to an EU 261 payout are well circumscribed. But when it happens, an airline feels the pinch. The regulation pertains upon delay or cancellation, EU guidance explains (bold in original), when:

• the flight is within the EU and is operated either by an EU or a non-EU airline;
• the flight arrives in the EU from outside the EU and is operated by an EU airline; or
• the flight departs from the EU to a non-EU country operated by an EU or a non-EU airline.

Here is the compensation schedule, per passenger:

• Type 1: €250 for a delay of two-plus hours, or €125 if re-routed to arrive fewer than four hours late, for flights of 1,500 kilometers or less.
• Type 2: €400 for a delay of three-plus hours, or €200 if re-routed to arrive fewer than four hours late, for intra-EU flights of more than 1,500 kilometers and for all other flights between 1,500 and 3,000 kilometers.
• Type 3: €600 for a delay of four-plus hours, or €300 if re-routed to arrive fewer than four hours late, for all other flights.

There need be no compensation when the delay can be attributed to a cause extrinsic to the carrier, such as weather. A passenger's receipt of compensation, including non-monetary assistance, pursuant to the law of a non-EU country precludes an EU claim.

Cash compensation is a welcome recognition that airline passengers suffer real costs when flights are delayed or cancelled—more than what is covered by a meal voucher or even, when necessary, an overnight stay. Ours is now a world of nonrefundable reservations for hotels, cars, and tours. Travel insurance is becoming a must, and yet another expense. Vacation time meanwhile is increasingly scarce, especially for Americans.

Meaningful compensation incentivizes airlines to work smarter. For example, scheduling departures too tightly, failing to anticipate mechanical needs, or simply de-prioritizing the correction of problems all become decisions with bottom-line consequences.

The outer jurisdictional limits of EU 261 are not spelled out on the face of the regulation, but European regulators and courts largely have construed silence expansively. EU 261 claims are not limited to EU citizens and airlines, as long as an EU country can exercise jurisdiction. EU 261 has an exception for "extraordinary circumstances," but courts have construed the exception narrowly, excluding technical problems. Court rulings in the late 2010s led to the application of EU 261 to U.S. carriers operating international connections to and from the EU.

At the same time, compliance has been a mixed bag. The fuzziness at the margins of EU 261 application, along with the reality that not all domestic authorities have been prepared to invest fully in enforcement, has afforded airlines room to fudge fulfillment of their obligations.

In the event of a maloccurrence, airlines are obliged to make passengers aware of their EU 261 rights, and passengers file claims with the airlines, not with regulators. The airlines can be less or more forthcoming with notifications and the ease with which consumers can file claims. There are reports, moreover, of airlines simply not paying what's owed. As a result, a cottage industry has arisen of intermediary companies that facilitate consumer claims in exchange for significant contingency fees.

As an American citizen traveling to, from, and through the EU, I’ve made some EU 261 claims in recent years, since the regulation expanded to reach foreign flight legs. I tested different options to make my claims, and I promised to share some outcomes.

No-Coverage Cases

It’s first important to articulate unfortunately ever more common passenger experiences that are not covered by EU 261—and, needless to say, precipitate no consumer protection in U.S. law.

My fellow Lagos-bound passengers and I wait in Paris.
RJ Peltz-Steele CC BY-NC-SA 4.0

CLAIM DENIED by Air France: EU transit.  In December 2022, I traveled from Boston, Massachusetts, to Lagos, Nigeria, via New York and Paris.  Because of a mechanical problem, after several hours’ delay, the connection from Paris to Lagos was canceled and rescheduled for the following day.  My booking was with Delta; KLM owned the itinerary; and the canceled connection was operated by Air France. EU 261 charges the operator with responsibility. Air France provided a €15 meal voucher and overnight accommodation, including a shuttle after quite a long wait. Such intermediate compensations do not preclude EU 261 awards.

Air France denied the type-3 compensation claim I filed directly with the airline. An Air France agent wrote:

I am really sorry to have to inform you that the EU Regulation 261/2004 does not apply when flight departs from a point outside the EU or EEA and travels to a final destination outside EU or EEA, via a connection in an airport in the EU or EEA.

Since your flight departs from Boston and arrives in Lagos via New York and Paris, we regret our inability to accede to your request for compensation on this occasion.

To be clear, every leg of this journey was a different "flight," with its own flight number; this was not a continuation "flight." My itinerary originated and terminated outside the EU. At the same time, Air France's interpretation of "flight" in EU 261 seems consistent with my other claim experiences. I suppose Air France was obliged to pay compensation to passengers who originated in Paris; I don’t know. I was not given any particular notice of EU 261 rights; maybe passengers originating in Paris were.

NO CLAIM against Air France: Advance cancellation. In November 2022, I traveled from Boston, Massachusetts, to Kraków, Poland, via Amsterdam.  I booked through Egencia; Air France owned the itinerary; KLM operated the connection to Kraków.

A month after my purchase, but still a month before the departure, KLM canceled the connection to Kraków. KLM rebooked me on another flight, lengthening my layover by five hours and putting me late into Kraków. Air France offered a full refund, in the alternative, but refused to book me on another carrier that would arrive earlier into Kraków.

Patriotic illumination aboard an Air France flight.
RJ Peltz-Steele CC BY-NC-SA 4.0

The problem here was that I had paid more for a morning arrival in Kraków, because I had to work there that day. I could have booked for the midday or later arrival with another carrier for less money at the time I purchased, had I wanted to. I chose the SkyTeam Alliance specifically for the early arrival. In the month since the purchase, the alternatives had risen exorbitantly in price as international itineraries. I could still buy a replacement connection to Kraków for midday arrival from another carrier, but Air France also refused to release me from the KLM connection. If I failed to appear for the KLM connection, Air France would cancel my ticket home.  I had no choice but to accept the change and miss most of my work day.

KLM claimed that it canceled the morning connection—a month in advance—because of a "mechanical problem." Apparently, no regulation requires an airline to tell the truth. I rather believe that KLM canceled the flight because SkyTeam's multiple flights to Kraków were undersold.

I could not make an EU 261 claim, because airlines are permitted to make whatever changes they please more than seven days before departure. This is a big gap in consumer protection, because passengers have no ability to rebook with another carrier so close to the departure date.

I did complain to the U.S. Department of Transportation (DOT), because it is impermissible, even under U.S. regulations, for a carrier to cancel a flight merely because it's undersold. Unfortunately, this rule is rarely enforced, because it's so easy for a carrier to point to another reason for the cancellation. KLM continued to claim mechanical failure, never explaining how that hurdle could not be overcome with a month's advance notice.

DOT took no action, but entered my complaint in its "industry monitoring system." I suppose this is the same system through which, a mere 16 years after Southwest began A-B-C boarding, it seems finally to have dawned on federal regulators that maybe children should not be forced to sit next to strangers. That would have been a nice policy change to have had when my daughter was growing up.

NO CLAIM against Turkish Airlines: Airport change.  This is an older matter, but I’m throwing it in here because it's a variation on the problem of advance cancellation that might well happen to other people in today's tight market. 

In November 2020, I was to travel from Boston, Massachusetts, to Khartoum, Sudan, via Istanbul, on Turkish Airlines.  Within a week of departure, Turkish canceled my Boston flight and rebooked me on a departure from New York JFK. That’s not an easy or costless transit, from my home to JFK: a four- to five-hour drive each way, or a slow train with multiple transfers. Turkish refused any compensation, offering only complete cancellation as an alternative, and that only when I asked.

This was not an EU 261 matter, because there was no point of contact with Europe.  If the same thing happened, though, with a transit in Europe, EU 261 would not have applied, at least according to the reasoning of Air France in the above-described claim denial. If Turkish made such a change for an EU-bound flight, I hope that EU 261 would apply. I wonder what would happen if Turkish changed the airport, but not the flight number; that's not a delay or a cancellation.

I'll never find out, because I now exclude Turkish Airlines from my fare searches. I suggest you do the same.

Coverage Cases

CLAIM SETTLED with SATA Air Açores: Delayed flight within EU. In July 2022, I traveled within Portugal, from Lisbon to Terceira Island, on SATA Air Açores. Because of a mechanical failure, my 4:15 p.m. departure was delayed to 9:55 p.m. SATA gave me a €10 food voucher. I incurred some additional expense having to get a nighttime transfer on the island, and I lost some daylight leisure time.

My SATA rights notice.

Lisbon to Terceira maps out at 1,555 kilometers, so just over the threshold for a type-2 claim. When I received the voucher at the airport, the agent also gave me a well copied notice of rights in paper. The notice was in Portuguese with no translation.  In Portuguese, the notice accurately described the three types of EU 261 events, but conspicuously omitted any numerical amounts of compensation. In late July, I filed a €400 claim directly with SATA via email.

In September, SATA responded via email with a counteroffer: €300. I accepted. SATA sent me a form to provide my banking information for a wire transfer. I did so, but SATA wrote subsequently to say that it couldn't get the transfer to go through—foreign payers often struggle to align their parameters with U.S. bank data—and that it would send a check. In November, I received a paper check in the mail for US$322.

I accepted the SATA offer because I thought it was more than fair, even though I was entitled to €400 under EU 261. SATA implicitly acknowledged as much by offering more than €250. But my roundtrip ticket with SATA had cost me only €255. And I didn't feel there was any misfeasance on SATA's part. There was no indication that the mechanical failure could have been anticipated; airport agents acted quickly and efficiently to reschedule; and SATA tasked the flight to another plane the same day, if later. Overall, I remained happy with SATA service, despite my lost time. I don't know what SATA would have done had I refused the offer and insisted on €400.

CLAIM PAID by American Airlines: Delayed flight in United States. Also in July 2022, I traveled from Lisbon, Portugal, to Boston, Massachusetts, via Philadelphia, Pennsylvania. I booked on Egencia, and American Airlines operated all flights. The connection from Philadelphia to Boston was delayed more than three hours, but less than four.

Had American Airlines not made such a mess of this delay, I probably would not have thought to apply for EU 261 compensation. This was the kind of straightforward poor customer service that, sadly, Americans have simply come to expect. The delay seemed to have resulted from the unavailability of crew. Passengers actually boarded the plane, and then we were ordered to deboard and return to the terminal. Gate agents offered conflicting explanations. They seemed to be arguing with each other. The tension was contagious, and information was scarce. Space around the gate was overcrowded. The scene was chaotic, ugly, and frustrating.

It's not immediately apparent that EU 261 applies. The flight was a domestic connection; there were passengers on board with no passports. This was the inverse of the Air France claim-denial situation I described above. My point of origin in the EU was dispositive, even when the problem arose on a domestic connection in the United States. My American citizenship was immaterial. The relevant facts under EU 261 were that my itinerary started in the EU, and I arrived more than three hours late to my final destination.

Even insofar as EU 261 applied, I wasn't sure what type of claim mine was. The overall travel distance, the "flight," defined by itinerary, was more than 5,000 kilometers. But the "flight," defined by a leg with unique flight number, from Philadelphia to Boston was less than 500 kilometers. 

Under the circumstances, I expected that if I made a claim, American would deny it. After all, I might notionally be entitled to make a claim under European law, but where would I enforce? The U.S. DOT barely enforces U.S. regulations; it's not likely to expend resources to enforce foreign law. The relevant EU jurisdiction was Portugal. But would I, a non-European, have standing before a Portuguese regulatory authority? 

With so much uncertainty, I was inclined to let the matter drop. But over the next couple of days, I became angry again that American never reached out with any kind of apology for its mess. What the heck, I thought. At least filing a 261 claim would let me vent.

At the same time, because I seriously doubted that I would see a dime, I decided to try using an intermediary. After reading some reviews, I chose AirHelp, a 10-year-old startup from Berlin that is now global. AirHelp promises to make the claims process easy, and it did. In late July, I uploaded my documents and provided a short description of what happened. I got to vent.

AirHelp kept me apprised of my claim status. It sent me an email saying it had determined that I had a valid claim for €300. That seems right, using the itinerary as the measuring stick to reach type 3, and acknowledging that the delay in the end was under four hours. AirHelp said that it would make that demand of American Airlines. Thereafter, AirHelp periodically let me know that it was still waiting to hear back.

To my surprise, in mid-November, AirHelp told me that American had agreed to pay €300. AirHelp sent me an invoice showing that it was deducting its 35% contingency fee of €105. AirHelp sent me a check for the difference in U.S. dollars, $201.38. The fee was hefty, but maybe not bad for a claim I never thought would be honored.

✈     ✈     ✈

In sum, EU 261 is a powerful accountability tool, even if, 18 years on, it leaves some wide gaps in consumer protection. Americans should have at least as good a mechanism at their disposal. Our airlines meanwhile are fighting against accountability, trotting out the usual "be careful what you ask for" warning that our mere expectation of market equity will make air travel unaffordable. Seems to me that if American consumers are going to lose either way, misery loves company.

Sponsored in the present U.S. Congress by Senators Richard Blumenthal (D-Conn.) and Ed Markey (D-Mass.), the "Passenger Bill of Rights" now pending as S. 178 calls for a ticket refund and re-routing, even on another carrier, for delays of one to four hours, and, additionally, $1,350 cash compensation for delays of more than four hours.

I'm sure the check's in the mail.

Go Red for Women

Today, February 3, is National Wear Red Day, a project of the American Heart Association (AHA) to commemorate American Heart Month and raise awareness of heart disease, especially in women.

Read more about heart disease in women at the AHA, including warning signs and symptoms. Read more at The Savory Tort about how we're losing the war on heart disease and need to retake the upper hand.

EU leverages trade for sustainable development

Attorney Cyprian Liske presents at the University of Bologna.
Used with permission.

"Sustainability" is the word of our times, and the European Union has more than a decade's experience building sustainability expectations into trade agreements.

At the University of Bologna in October, for a program of the Guild of European Research-Intensive Universities, doctoral candidate Cyprian Liske, my friend, colleague, and former student, presented his research on sustainable development provisions in EU trade agreements concluded from 2010 to 2020. Here is the abstract:

On 27th November 2019, Ursula von der Leyen, at that time President-elect of the European Commission, delivered a speech in the European Parliament, in which she set a concise programme for the next 5 years of her term of office. "Sustainability" was mentioned in this speech no less than 8 times. "We have to bring the world with us and this is already happening," Ms. President said. "And Phil Hogan [at that time Commissioner for trade] will ensure that our future trade agreements include a chapter on sustainable development."

Indeed, the EU has been including trade and sustainable development (TSD) chapters in new-generation trade agreements since the Free Trade Agreement with South Korea (2010). However, such TSD chapters, devoted to the realisation of the Sustainable Development Goals, including environmental protection, preventing resource depletion, or protecting workers' rights, differ substantially in agreements concluded with particular countries....

The goal of the project was to comparatively analyse TSD chapters in trade agreements concluded by the EU in 2010-2020, pointing out common elements and differences. The analysis will let us critically explore what the reasons for those differences may be (e.g., the course of negotiations, economic dependency, trade partners’ level of development) and whether the EU is consistent in its sustainability requirements set towards its trade partners. It will also allow us to depict the current tendencies in the way how such TSD chapters are shaped by the EU in comparison with the global trends. The comparative analysis of the EU TSD chapters was conducted by the researcher qualitatively and quantitatively with the use of software (MAXQDA 2022).

The research parses the interests advanced by EU agreements..
© Cyprian Liske; used with permission.

The Biden administration lately has redoubled the U.S. commitment to the developing world, announcing at a December summit, for key example, an investment of $55bn in Africa over the next three years.

Development aid is often viewed skeptically by American taxpayers. That's understandable when the homeland is plagued by homelessness and financial insecurity. Isolationism streaks run through both libertarian and conservative ideologies, evidenced lately by Republican skepticism even of aid to Ukraine. But development aid can be justified with reference simultaneously to socioeconomic benevolence and to the donor's national security, thus, appealing to priorities both liberal and conservative.

Literal signs of Chinese investment are ubiquitous throughout Africa, as here,
in the rural community d'Oukout in the Casamance region of Senegal, 2020.
RJ Peltz-Steele CC BY-NC-SA 4.0

The United States has a lot of catching up to do. With hotly debated motive, China has invested heavily in the developing world, near and far from its borders. Chinese presence in Africa is ubiquitous, from massive infrastructure projects such as ports and bridges to telecommunication access in the remotest of villages. Russia, too, has lately gone all-in on Africa: a "charm offensive," researcher Joseph Siegle wrote last year, and "[t]he reasons aren't pretty."

Incorporating sustainable development into trade agreements allows western powers to facilitate development goals at less cost than direct investment, and even with potential gains through free trade. There's still a lower-common-denominator problem when competing against proffered Chinese and Russian agreements that attach browbeating strings only on the back end. But access to Western markets brings some incentive to the table.

A practicing lawyer and legal translator, Liske is pursuing his doctorate on the nexus between sustainable development and international trade law in the context of EU external policy. He graduated in law from Jagiellonian University and in business linguistics from the Tischner European University, both in Kraków, Poland, and both with distinction. He also is an alumnus of the American Law Program of the Columbus School of Law of the Catholic University of America, and of the English Law and Legal Methods International Summer Programme of the University of Cambridge.

Sunshine filters in to Mass. jail with gloomy history

Bristol County, Mass., Sheriff Paul Heroux is seeking to close a jail with a gloomy history, and last week he gave journalists a look inside.

Built in 1888, the Ash Street Jail in New Bedford, Mass., housed Lizzie Borden during the 1893 trial in which she was acquitted of killing her father and stepmother. The "Lizzie Borden House" is a tourist attraction in nearby Fall River, Mass., today. Undoubtedly the site of executions in Bristol County, Ash Street is often said to be the site of the last public hanging in Massachusetts, in 1898. Records conflict (compare O'Neil with O'Neill, and see Barnes), but if it's not, it's close enough. The commonwealth changed its method of execution to the electric chair in 1900.

Purchase St., New Bedford, Mass., 1888.
Whaling Museum photo via New Bedford Guide.

One of the oldest jails in continuous operation in the United States, Ash Street gained new notoriety beginning in the late 20th century, especially after 1997 during the tenure of Sheriff Thomas Hodgson. In 25 years of service as sheriff, after prior service in local politics, Hodgson earned national press for hardline measures such as the removal of televisions and gym equipment from the jail, the imposition of room-and-board charges for detainees, the institution of chain gangs, and an offer of detainee labor to the Trump Administration to help build the border wall.

Meanwhile, Hodgson was unapologetic for conditions within the jail. Former detainees complained of uncontrolled mold, uncontained sewage, and intolerable cold and heat (WBUR). The complaints have been controverted. A former jail official lauded staff and facility in a 2022 letter to the New Bedford Guide, for example, and a news reporter, upon a tour of the facility in 2016, wrote favorably of a modernized interior.

When Heroux toppled Hodgson in the 2022 election, closing the Ash Street Jail was part of his platform.

President Trump and Sheriff Hodgson at the White House, 2019.
Trump White House Archives via Flickr (public domain)

Former Sheriff Hodgson is reminiscent of an infamous character in the annals of freedom of information law, Sheriff Thomas Lafayette Houchins, Jr., of Alameda County, California. Houchins lent his name to Houchins v. KQED, Inc., a 1978 U.S. Supreme Court case regarded generally as standing for the proposition that the First Amendment does not articulate a right of access to public places, if not more broadly foreclosing use of the First Amendment as any kind of freedom of information act.

In my 2012 casebook, Law of Access to Government, I contextualized Houchins with some biographical information about the sheriff (relying on sources such as the East Bay Times).

Thomas Lafayette Houchins, Jr., was a leader in the sheriff 's department in the 1960s and earned a reputation for uncompromising law enforcement. A veteran law enforcement officer, Houchins had joined the department in 1946 after serving in World War II as a Marine Corps fighter pilot. He was elected sheriff in 1975 and retired in 1979. In 1969, Houchins commanded a force of sixty or more deputies in crowd control at what became an infamously tragic concert headlined by the Rolling Stones. He recounted thirty years later: "Some guy jumped off an overpass because somebody told him he could fly. They lied. Another jumped into the [Delta Mendota Canal] because they told him he could swim. They lied to him, too.... I think we had five deaths and five births, so we came out even." Houchins died at his California home in 2005.

The Houchins case centered on news media investigation of the Santa Rita jail. Reporters wanted to tour "Little Greystone," a part of the jail in which "shocking and debasing conditions" were alleged to have caused inmate illnesses and deaths.

Houchins is one of a family of First Amendment access cases in which the Burger Court put the brakes on the liberal interpretations of the First Amendment that characterized the civil rights era. However, to the dismay of President Richard Nixon, who appointed him, Chief Justice Warren Burger was only marginally effective in rallying the Court to reverse the civil rights direction of the predecessor Earl Warren Court.

Houchins reflects that equivocation. Though Houchins's bar review flash card might read simply "no 1A access to public places," the decision came from a fractured Court of only seven justices and an opinion of only three. Harry Blackmun and Thurgood Marshall did not participate, the former having had recent surgery and the latter recusing. Burger was joined by only two others, including his successor as Chief Justice, William Rehnquist, in the opinion of the Court. They formed a majority of four with the addition of Justice Potter Stewart. (Read more about the fracas behind the scenes from Matthew Schafer.)

Concurring, Stewart joined Burger's conclusion on the facts of the case; he had been the author of two prior Court decisions, in 1974, rejecting press access to prisons or prisoners. Yet in his opinion in Houchins, he speculated that media might articulate a First Amendment claim on better facts. With three dissenters arguing at least as much, thus outnumbering the Burger contingent, Houchins arguably left the jailhouse gate open to a First Amendment theory, if you'll forgive the metaphor. Media law aficionados will recognize a pattern akin to Branzburg v. Hayes (1972), in which similar equivocation on the Court, aided later by clever advocacy from media lawyers, left the problem of constitutional reporter's privilege in disarray.

Much of the dispute in Houchins can be characterized as a frame-of-reference problem. In its broadest frame, Houchins is about public access to places to hold public officials accountable. That seems reasonable. But when I teach Houchins, students are quick to find the media position untenable, reading the case more narrowly as about reporters demanding access to any part of the prison, perhaps even with minimal advance notice.

That dichotomy in framing plays out in the public protests and media frustration over access to the Ash Street Jail in recent decades. There were tours; the writer who toured Ash Street in 2016, cited above, was then a reporter for public radio WBUR. Just like in Houchins, protestors and former detainees of the facility complained that public tours were limited and staged, showing reporters only what officials wanted them to see. Officials said that wider public access would jeopardize the security of the facility and the people inside, both detainees and workers.

The theoretical solution that emerged from Houchins, such as the case held, is that supervision of "non-public public places" should be accomplished not through the free press of the First Amendment, but through political accountability at the ballot box. To some degree, that's what happened when Heroux became sheriff in 2022. At the same time, prison conditions raise a peculiar problem in majoritarianism, familiar in criminal justice and civil rights contexts, and resonant in debate today over policing: The political system is not a reliable way to protect the rights of jailed persons, a minority class widely regarded with little sympathy.

On balance, I don't know whether the truth of the Ash Street Jail is closer to the horrifying complaints of former detainees or to the confident assurances of public officials. Whether constitutionally or statutorily, sunshine must be allowed to penetrate prison walls.

Senate inquisition of Ticketmaster is antitrust theater

Ginny via Flickr CC BY-SA 2.0

Inquisition of Ticketmaster in the Senate last week made headlines, but it's so much antitrust theater, and Ticketmaster and parent Live Nation know it.

Senators love to play hard-nosed before the cameras, and then assiduously do nothing to alienate the corporatocracy. Breathless reporting on the hearing in the Judiciary Committee would have you believe that this is Ticketmaster's first dance. It's not.

The Justice Department signed off on Ticketmaster's very merger with Live Nation in 2010 (N.Y. Times). The N.Y. Times Dealbook Newsletter further recalled:

In 2019, [Sen. Amy] Klobuchar [D-Minn.] and Senator Richard Blumenthal, Democrat of Connecticut, urged the Justice Department to investigate the "broken" ticket industry.

Artists have long complained about Ticketmaster’s role. The band Lawrence, whose co-founder, Clyde Lawrence, wrote a Times Opinion essay on the topic last year, included the line "Live Nation is a monopoly" in its 2021 song "False Alarms." Perhaps most famously, Pearl Jam filed an antitrust complaint against Ticketmaster in 1994—16 years before it merged with Live Nation—kicking off a federal investigation that ultimately fizzled.

(Read more about the Pearl Jam claim from Rolling Stone in 1995. (UPDATE, Feb. 5: On the Media looked back at the Pearl Jam matter two days ago.)) House Democrats asked the Biden Administration to take another look at the Live Nation merger in the spring of 2021, well before the Taylor Swift ticketing fiasco (N.Y. Post).

Founded in 1976, Ticketmaster was on its way to market dominance and a lousy reputation with concertgoers by the time I was a teenager. Already transnational, it took the market lead when it acquired Ticketron in 1991.

Live Nation was once a growing competitor to behemoth Ticketmaster. In 2000, Live Nation was acquired by Clear Channel Communications, and then was spun off in 2005. It soon started work on the Ticketmaster merger, which was announced in 2009 and approved by the Obama Justice Department in 2010.

Clear Channel itself is another chapter in the government's pathetically permissive record of antitrust enforcement in media and entertainment. In 2001, Jesse Morreale, a Colorado concert promoter (and my first cousin), along with partners in Nobody in Particular Presents, Inc., sued Clear Channel for shameless vertical integration in the music business.  The federal district court in Denver denied Clear Channel summary judgment in 2004 (more behind pay wall at Rolling Stone). The case subsequently settled. Clear Channel's vertical integration was a more sophisticated descendant of simple payola, an unfair practice in the music industry as old as regulatory agencies themselves. 

It's a normal market dynamic for industry and antitrust regulators to play a cat-and-mouse game over the long term. But Ticketmaster has been only a clever Jerry to the government's buffoonish Tom for going on half a century.