Public records make $363m toxic-tort verdict possible

Condensed ethylene oxide, a carcinogen.

102% Yield via Wikimedia Commons CC BY-SA 4.0

Public records made possible a $363m verdict in a toxic tort case in September.

For the ABA Journal, attorneys Jennifer M. Cascio, Lance D. Northcutt, and Patrick A. Salvi II wrote about how they won the verdict in an Illinois jury trial (limited free access). They explained:

In August 2018, a federal report revealed that a small community southwest of Chicago had an elevated cancer risk due to emissions of a carcinogen from two innocuous buildings situated between a Target and a Denny’s. Those buildings were operated by the medical device sterilization company Sterigenics, which had been releasing a colorless, odorless human carcinogen [ethylene oxide] since 1985 without any warning to the surrounding community that included homes, schools, businesses and parks—all within a mile.

Bringing such a case is easier said than done; I know because I saw it in Erin Brockovich and A Civil Action. Seriously, though, even at the pleading stage, showing evidence of proximate causation between a toxic substance and specific plaintiffs' illnesses is a towering hurdle, much less the proof that would be needed to win a trial. And a plaintiff that cannot get over the pleading hurdle cannot get discovery.

It's noteworthy, then, that, as described, this case started with a public federal report and proceeded thanks in part to the Freedom of Information Act (FOIA). Especially burdened by a dearth of relevant epidemiological evidence, the plaintiff lawyers wrote that they amassed the necessary evidence of causation by "gather[ing] documents via Freedom of Information Act requests and digging through state and federal databases."

We like to think that our not insubstantial regulatory state is using the resources that it itself produces to safeguard public health. For whatever reason, and there are many reasons, that's the exception to the rule. America rather relies heavily on the tort system as a first-line accountability mechanism. FOIA is vital to bridge the gap between public and private enforcement. 

The case moreover shows the importance of affirmative disclosures of scientific information through publicly available databases. Here, fortunately for affected persons, plaintiff lawyers were on the hunt for evidence. No doubt, though, some victims did not know they were victims of pollution, a colorless, odorless gas, no less, until they saw an attorney's ad. FOIA without affirmative disclosure is useless when people don't know there's a reason to be asking questions. Cancer sufferers might have other things on their minds.

The case, one of more than 700 of its kind against the same defendant, is Kamuda v. Sterigenics, U.S. LLC, No. 2018-L-010475 (Ill. Cir. Ct. verdict Sept. 19, 2022).

Opioid settlement disbursements must be transparent, state high court rules in row over nonprofit foundation

The nonprofit foundation responsible for disbursing hundreds of millions of dollars of opioid settlement money in Ohio is subject to state freedom of information laws, the state supreme court ruled Thursday.

Big money is flowing out of opioid settlements, such as the $10 billion deal struck by pharmacies CVS and Walgreens. Ohio will see some $450 million of that money, Emily Field reported for Law360 (limited free access). At least half of it will be disbursed by a nonprofit organization that state and local governments created for the purpose, the OneOhio Recovery Foundation.

A representative of Harm Reduction Ohio (HRO), another nonprofit organization, concerned with preventing overdose deaths, was shown the door at a OneOhio meeting not open to the public. OneOhio subsequently refused to reply to record requests under the Ohio public records act (PRA).

That will change now, as the Ohio Supreme Court ruled unanimously that OneOhio is the functional equivalent of a public entity, the test for bringing quasi-private actors within the scope of the PRA. To determine functional equivalence, the court explained, a totality-of-the-circumstances, multi-factor test asks:

(1) whether the entity performs a governmental function,
(2) the level of government funding, 
(3) the extent of government involvement or regulation, and 
(4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.

The burden of proof is "clear and convincing," which is no low hurdle. 

The factors are common in functional equivalence tests in state sunshine laws in the United States. The devil is in the application. Characteristically, HRO and OneOhio posited very different analyses.

Though the multi-factor test makes no one factor dispositive, funding often proves controlling in cases such as these, even to the point that some states employ a disjunctive formulation along the lines of "state funding or state power." Here, the parties looked at the problem from differing angles. HRO characterized the money under the control of OneOhio, an entity created by government, as public money. OneOhio rather looked to the source of the money, private corporations, and to the ultimate beneficiaries, private-person recipients of state aid.

HRO had it right, the court decided. The analysis was bolstered by the inescapable conclusion that OneOhio was created by state and local governments through a memorandum of understanding specifically about how they would handle the money. OneOhio tried to resist the fourth factor by articulating it as conjunctive, thus, requiring an intent to evade the PRA. But the court had none of it.

Another somewhat superfluous argument by OneOhio merits mention. The foundation argued that subjecting it to the PRA would makes its funds vulnerable to raiding for other purposes by the legislature. Neither here nor there, the court opined. I suggest moreover that OneOhio's PRA accessibility is the result not the cause of its public status.

What's interesting about the argument from a tort perspective, though, is that OneOhio pointed to the example of tobacco settlement money. The Ohio executive and legislature responded to the 2008 financial crisis by diverting $230m in proceeds from the 1998 Master Settlement Agreement with Big Tobacco to unrelated purposes, namely, balancing the budget and fostering job creation. The Ohio Supreme Court upheld the diversion against constitutional challenges in 2010.

The application in the states of functional equivalence and similar tests to extend sunshine laws to quasi-private actors is highly variable, as much a function of the eye, or prejudices, of the beholder, as of any mathematical formula. That makes it difficult to extrapolate from the Ohio case beyond Ohio.

Still, I find this case offering a compelling analysis to access the infamously secret records of university foundations in other states. Those records, too, often are secreted upon the rationale that the funds originate with private donors. Consistently with the instant case, but not representing a majority rule in the states, the Ohio Supreme Court sided with a newspaper in 1992 in granting PRA access to the donor rolls of the nonprofit University of Toledo Foundation.

The instant case is State ex rel. Harm Reduction Ohio v. OneOhio Recovery Foundation, No. 2023-Ohio-1547 (May 11, 2023).

German court protects political satire in 'fake interview'

Katrin Göring-Eckardt
Heinrich-Böll-Stiftung CC BY-SA 2.0

In August 2022, a German court rejected a politician's claim that a satiric "fake interview" violated her rights.

Attorney Roman Brtka reported on the case for Bird & Bird Munich, and I rely on his report at Media Writes. The case is compelling because the fact scenario, and usually the same outcome, arises periodically in American law from the likes of an Onion "exclusive interview."

The plaintiff in the German case was Katrin Göring-Eckardt of the German Green Party. The defendant was Tichys Einblick (TE), a wide-ranging opinion magazine sometimes identified with right-wing populism. The content at issue was a wholly fictitious interview that mocked Göring-Eckardt's liberal position on pronouns. TE flagged the piece expressly headlined, "Achtung Satire" ("Attention Satire").

Brtka provided a helpful explanation of pronouns in the German language and how they play out in hot-button gender identity politics. The interview employed "extremely exaggerated ... gender-neutral language" to mock Göring-Eckardt.

The plaintiff invoked the German constitutional "right of personality," an outgrowth of broad European privacy law and close cousin of data protection. In this context, the right comes perhaps closest in American tort law to false light invasion of privacy. A better analogy would be a marriage of the right of personal autonomy, as known to medical decision-making in American constitutional law, to the interest of anti-disparagement, as known to trademark law.

The Hamburg regional court concluded, according to Brtka, "that the unbiased and reasonable audience could ... recognise, from the hyperbolic use of gender forms and the exaggerated demands mentioned in the article, that these were not actual statements made by the plaintiff. The mere fact that individual readers might come to a different understanding did not change this." Without any asserted truth, there could be no misrepresentation of the plaintiff's person, so no infringement of the plaintiff's personality right.

Brtka commented that "[i]t remains to be seen" whether the courts would protect satire that is not so plainly labeled, such that the satiric nature must be inferred from the content itself.

TE also reported the outcome of the case.

Unlike TE, The Onion, "America's Finest News Source," is satire through and through, even as it has been sold between media companies with other properties. The Onion's non-satirical supplement The AV Club was always branded distinctively and spun off in 2012. Taken in context, it's very difficult to mistake Onion content as true, though people sometimes infamously do. 

Like the German regional court, American courts, heeding the First Amendment, cut a wide berth for satire, likewise employing objective reasonableness to examine both content and context. Without an assertion susceptible of being proved true or false, there can be no winning claim of false light or defamation.

For satirists, closely related legal problems can arise from real interviews under pretenses the interviewee alleges were false: think Rudy Giuliani in Borat Subsequent Moviefilm. The Borat films and media enterprises such as The Daily Show use releases to help protect themselves. Even a well worded release is not ironclad against a claim that acquiescence was procured through fraud. But whether upon the release or lack of falsity, claims are almost invariably dismissed. The practical problem for plaintiffs is that what the camera captures is true, and the judgment that frames it is merely opinion.

Evidencing American courts' deference to hyperbole, Fox News prevailed in a 2020 lawsuit in part upon the theory that reasonable viewers did not regard the recently newsworthy Tucker Carlson as a source of facts. In 2022, the Sixth Circuit denied recovery to a man who satirized the Facebook page of his local police, and then was charged with and acquitted of a crime. Police were entitled to qualified immunity from the man's civil rights claim, the court concluded. The U.S. Supreme Court denied review amid a set of engaging amicus briefs, including one from The Onion.

Since the E. Jean Carroll verdict against former President Donald Trump, there has been a flurry of commentary suggesting that defamation law is the way out of the misinformation quagmire. It's really not, for a bunch of reasons that are beyond the scope of this post. Relevant here, the understandable thirst for accountability in the misinformation age might push against the traditionally wide berth of protection for satire. Let's hope the courts resist that push, because satire itself is a vital accountability mechanism.

OER saves students money, but printing is too pricey

Markus Büsges (leomaria design)
für Wikimedia Deutschland e. V. (CC BY-SA 4.0)

Open educational resources (OER) are all the rage in higher education, but the cost of hard copies for students remains a problem.

At a panel on OER at a UMass Dartmouth teaching and learning conference in January, I had the privilege of talking about my experience using Tortz, my own textbook for 1L Torts (chapters 1-7 online, remainder in development and coming soon). Ace librarian Emma Wood kindly invited me to co-pontificate with Professor Elisabeth Buck and Dean Shannon Jenkins on a panel, "The Price is Wrong: Lowering Textbook Costs with OER and Other Innovations." Wood is co-author, with law librarian Misty Peltz-Steele (my wife), of Open Your Casebooks Please: Identifying Alternatives to Langdell's Legacy (on this blog).

My campus is pushing for OER, and for good reason. We all know how exorbitant book costs have become for students. And academic authors are hardly beneficiaries of the proceeds. The first book I joined as a co-author in 2006, for 1L Torts, bore a sale price in the neighborhood of $100. I received $1 to $2 per book (and gave to charity the dollars generated by my own students). My students for the last two years have paid nothing for Tortz.  Besides the cost savings, I get to teach from materials I wrote, compiled, and edited, so I know the content and how to use it better than I could anyone else's.

My students' book for 1L Property this past academic year cost $313. It's an excellent book, and I'm not knocking the professor who chose it. Developing my own materials for a foundational course is a labor-intensive project that I felt I could tackle only with the freedom, afforded by tenure, to set my own agenda, and some 20 years' experience teaching torts. At that, I've benefited and borrowed heavily from the pedagogy of a treasured mentor, Professor Marshall Shapo. Without the opportunity to have invested in Tortz, I'd be using a pricey commercial book, too.

A necessary aside: Technically speaking, my book is not OER, because I retain copyright. By definition, I'm told by higher education officials, "OER" must be made available upon a Creative Commons license, or released into the public domain. That's an irrevocable commitment. I'm not willing to do that. In my experience working with higher education institutions around the world, I have found that some out there would seize on freely available intellectual property while profiting handsomely from students desperate for opportunity. In such a case, I would rather negotiate a license and decide myself what to do with any proceeds. I freely licensed Tortz to my own students for the last two years. This is an interesting problem, but for another time.

So Tortz has been working out well. But now I'm looking at a roadblock: hard copies.

For the past two years, I have taught Torts I and II only to small night classes, and I've provided them with hard copies of the text. I made the hard copies on our faculty copiers, and the numbers were small enough not to be of concern for our budget. But beginning in the fall, I'll have two sections of torts, day and night, anticipating 70 or so students. That's too many prints to fold hard copies into the office budget.

I need my students to have hard copies for many reasons. The first issue is comprehension. For me, a reader of a certain age, I still have trouble absorbing content from a screen as well as from a page. When it's important for me to get it, I print a hard copy to read. Many of my law students, of all ages, but especially non-traditional and part-time students, share my preference. When I did a peer teaching observation for my colleague in property law, I saw students using both online and hard-copy versions of the $313 book. A hard-copy user told me that she uses the online version, but still needs to highlight and "engage with the text" to process the content on the first go.

A second issue arises in the exam. I prefer to give my 1L students an open-materials but closed-universe exam. I find that a closed-book exam tests more memorization than analytical skill, while an open-universe exam tests principally resistance to distraction. Regardless, it's my pedagogical choice. The problem is that the exam software we use locks students out of all computer access besides the exam. For any materials they're allowed to have, namely, the book, they need to have an old-fashioned hard copy.

So how to put hard copies in 70 students' hands without re-introducing the cost problem?

As is typical, my university has a contract with a bookstore operator, and book sales are supposed to go through the bookstore. The bookstore uses a contractor for printing. The contractor, XanEdu, after weeks of calculation, priced my book for the fall semester only: a ready-made PDF of 619 pages with basic RGB screen (not photo-quality) color, at $238 per print. That's a non-starter.

Printing at Office Depot would cost just a bit more than that. My university no longer has a print center, but I think its prices when there was one were comparable to retail.

A print-on-demand company, Lulu, was founded by Red Hat tech entrepreneur Bob Young, who became frustrated with the traditional publishing industry when he wanted to tell his own story. Lulu priced out at just $27 per book, which definitely makes one wonder what's going on at XanEdu. Lulu charges about $12 to ship, USPS Priority, but that takes up to 11 business days, which is far too long for students to order only once school starts. Also, it's not clear to me whether I can offer print on demand consistently with the university's bookstore contract. The bookstore has not answered my query as to what the mark-up would be to pre-order copies in bulk from Lulu.

I've kicked the issue upstairs, so to speak, to the law school administration. The associate dean promised to take the question up more stairs, to the university. Budgeting is above my pay grade, after all. I'd like to see the university support OER by volunteering to eat the printing costs. If I'm pleasantly surprised, I'll let you know. It's more likely the university will offer to deduct the costs from my pay.

Anyway, I am excited about OER, or freely licensed "OER," as a game changer for me to be more effective in the classroom. I appreciate that my university supports the OER initiative at least in spirit, and I am grateful to have been included in Emma Wood's thought-provoking discussion with Professor Buck and Dean Jenkins.

Wide-ranging social commentary in Peele's 'Wendell & Wild' pillories privatization, school-to-prison pipeline

Released by Netflix in October 2022, Wendell & Wild is a delightful stop-motion horror animation and none-too-subtle commentary on the school-to-prison pipeline.

Jordan Peele and Henry Selick co-produced and co-authored Wendell & Wild, which is based on an unpublished book by Selick and Clay McLeod Chapman. Comedic genius Peele was fresh off Nope (2022), which I thought was much better than the confused Get Out (2017), though the newer film won zero Academy nods to the earlier's screenplay win and three noms in 2018. Selick is a Hollywood legend, but doesn't perennially produce new work for our pleasure. He co-masterminded The Nightmare Before Christmas (1993) and James and the Giant Peach (1996) in the animation vein, and he did the visual effects for a favorite film of mine, the quirky and underrated Life Aquatic with Steve Zissou (2004).

Wendell & Wild follows teenager Kat (Lyric Ross, Déjà on This Is Us) as she battles demonic forces, including an eponymous demon pair (voiced by Peele and comedy partner Keegan-Michael Key), intent on evil works, including construction of a prison, in the down-on-its-luck earthly town of Rust Bank. Critics harshed on the film for jamming too much social commentary into one vehicle, and, admittedly, Wendell & Wild fires head-spinningly at innumerable targets.

To me, that's the fun of it. Race, education, employment, the institutional church, and the criminal justice system only outline the low-hanging fruit. Through subtleties such as plot device, semantics, and imagery, the film digs deep into nuances, even the socioeconomic layers of natural hair.

Whatever your pet peeve of social dysfunction, you can find it in Wendell & Wild, which is why I first saw the film as a commentary on transparency and accountability in urban development. The demons and their mortal allies are in the privatization-of-state-services game. They plan to build a prison that will do nothing in the way of rehabilitation alongside schools that will do little in the way of education, as building each institution to serve its purpose would be bad business for the other.

What I was inclined to see as a problem in freedom-of-information law, informed as I was by a former student's recent publication on private-prison abuse in Arizona for The Journal of Civil Information, to be fair, is just one angle on the broader problem of the school-to-prison pipeline. In this vein, I shared a scene from Wendell & Wild with my law students.

It happened that Jose Vazquez, communications director for the ACLU of Alabama, keyed in on the same scene and posted it to Twitter (embed below). In the scene, mean-girl ringleader Siobhan (Tamara Smart) starts to put together the evil plot of her parents, urban development power couple Lane and Irmgard Klaxon (David Harewood and Maxine Peake), owners and directors of Klax Corp. How sweet is that multiplicitous naming?

This clip is a spoiler but I really hope it can be used in classrooms and just generally shared because we all need to learn how prisons ruins people's lives, families, and entire towns! We can all imagine better futures and this film does a great job illustrating that. pic.twitter.com/Y2TS31lkAd

— jose bouquet (@josebouquets) October 29, 2022

Wendell & Wild is worth the watch. As Vazquez wrote of the above clip on Twitter, "I really hope it can be used in classrooms."

Polisci papers track Ukraine war to Arctic, UN, internet

The war in Ukraine occasioned several papers at last weekend's annual meeting of the New England Political Science Association (NEPSA) in Mystic, Connecticut.

The NEPSA meeting offers an outstanding opportunity to preview cutting edge research presented in a low-stakes and supportive setting. Long-time NEPSA Executive Director Steven Lichtman, a professor of political science at Shippensburg University, is the brilliant maestro, setting the right collegial tone while supervising a rigorous selection process that guarantees top-shelf work.

Rotating location in New England states, NEPSA has become one of those regional conferences that is so highly regarded as to draw participation from across the country and from neighboring disciplines including law. The program is open to faculty and graduate students; law students of mine have participated in the past. This year the program opened two panels to undergraduate researchers. An extremely selective submission process yielded undergraduate presenters fully capable of going toe to toe with working scholars.

Prof. Steven Lichtman, 2016
RJ Peltz-Steele CC BY-NC-SA 4.0

There is scarcely a corner of politics and its study not being reshaped by the war in Ukraine. So it's no surprise that the war motivated many of the papers at this year's NEPSA. For all that I learned from myriad presenters, I thought I might share just a taste of takeaways related to the war.

★

A Ph.D. candidate at the University of New Hampshire (UNH), Tim Hoheneder is thinking about the effect of the Ukraine war on Arctic politics. He explained that Russia assumed the rotating chair of the eight-state Arctic Council just before the full-scale invasion of Ukraine. The United States said it would not participate on the council during the term of the Russian chair, which ends this summer, in 2023. The United States did say it would continue to work bilaterally with other states on Arctic issues.

Now what will become of the council is up in the air. Major issues affecting global security, involving nuclear proliferation, militarization, indigenous rights, and climate change, hang in uncertainty. Hoheneder's paper is "Science Diplomacy as a Neofunctionalist Tool in a Post-Ukrainian Invasion Arctic."

★

A master's student at UNH, Sarah DeSimone is considering how the U.N. Security Council might be made functional since the Russian veto has neutralized any meaningful response to the war. She explained both the long history of attempted Security Council reform and the recent history of failed resolutions on Ukraine. 

The only reform to the Security Council to gain traction has been the recent Liechtenstein "Veto Initiative," DeSimone explained. The initiative modestly would require that a council state explain a veto. DeSimone voiced support for an amalgam of proposals that have been floated before: First, the veto should be prohibited in matters of genocide, human rights violations, and serious violations of international law. Second, in conjunction with the prohibition, an oversight mechanism should preclude countries from voting on matters in which they are directly concerned. 

Without Security Council reform, DeSimone warned, lack of credibility will render the United Nations "obsolete." DeSimone's paper is "Reforms to the Security Council: Salvaging the Liberal World Order by Examining the Crisis in Ukraine."

★

A senior at Providence College and editor-in-chief of the student newspaper, The Cowl, Sarah McLaughlin spent 46 unenviable days immersed in a Russian social media image board, Dvach (Двач). Her findings are fascinating. She discovered a world of hyper-masculine Russian nationalists almost as disgusted with Vladimir Putin as they are with Ukraine. The community evinces nostalgia for a perceived past of conservative values and faults Putin for not living up to anti-western and anti-liberal values. The community opposes the war in Ukraine and the mobilization of Russians to support it, even as participants depict the idealized Russian man as strong, hardworking, and dutiful to country. Animals, especially pigs and monkeys, represent Ukrainians, women, and Putin in demeaning memes.

McLaughlin's paper is "Russia the Bear, Putin the Pig: Russian Nationalism and the Imagined Community of Memes."

 ✪

NEPSA's next annual meeting is slated for spring 2024 in Newport, R.I.  Look for a call for papers by September with a December 2023 deadline.

No right to physician aid in dying, Mass. high court holds, rejecting analogy to same-sex marriage right

In 2017, Rep. Eleanor Holmes Norton (D-D.C.) and D.C. residents
protest to protect "death with dignity" law from congressional meddling.
Ted Eytan, MD, via Flickr CC BY-SA 2.0

There is no right to physician aid in dying in the Massachusetts constitution, the commonwealth high court held in December, leaving room for legislators to fill the gap.

A cancer patient and a doctor brought the case. The plaintiff patient, a retired physician with metastatic prostate cancer, wanted counseling on physician aid in dying; the plaintiff doctor wanted to give counsel to his patients struggling with potentially terminal illness. Both plaintiffs argued that they could not get what they want for fear that doctors can be prosecuted for the state common law crime of manslaughter, that is, reckless killing, or worse.

The court opinion refers consistently to "physician-assisted suicide" (PAS), but I'm here using the term "physician aid in dying" (PAD), a difference I'll explain. The medical action at issue here is the ability to "prescri[be] ... barbiturates [with] instructions on the manner in which to administer the medication in a way that will cause death." But the plaintiffs confined their demand to patients facing fatality within six months. 

In a footnote, the court said it used "PAS" because the American Medical Association (AMA) prefers the term. The AMA regards "PAD," or the more modish "medical aid in dying" (MAID), preferred by the plaintiffs, as unfavorably "ambiguous."

Massachusetts remains with majority of states in not recognizing PAD right.
Terrorist96 (upd. Apr. 2021) via Wikimedia Commons CC BY-SA 4.0

Facially, both terms are potentially ambiguous; the quibble over semantic precision faintly masks the policy disagreement. "PAS" implicates suicide in the conventional sense, comprising the intentional ending of one's life for any reason, including the expression of mental illness. That's a bigger ask in terms of constitutional entitlement. The 10 states (plus D.C.) that allow PAD, such as Oregon, require a terminal diagnosis and purport to exclude conventional suicide. "PAD" and "MAID," accordingly, mean to narrow the fact pattern to a patient who is hastening a process of natural death that already is under way, or at best ending an inescapable and intolerable suffering.

I learned about this distinction, and more in this area, only recently, as a student in my Comparative Law class is working on a research paper comparing MAID laws in Oregon and the Netherlands. In her early stage of topic selection, I referred her to, and recommend to everyone, my top This American Life segment of 2022, "Exit Strategy." The heartbreaking segment comprises excerpts of Connecticut writer Amy Bloom reading from her book, In Love: A Memoir of Love and Loss, which documented the figurative and literal journey of her and her husband to end his life in Switzerland after his diagnosis with Alzheimer's. I might one day read the whole book, but I'll need to work up the emotional strength.

The court's thorough opinion by Justice Frank M. Gaziano largely tracked the reasoning of the U.S. Supreme Court in declining to recognize PAD as a fundamental right, because it's supported neither by historical tradition nor widespread acceptance. Insofar as PAD is a reality on the ground for doctors and terminally ill patients, it still carries a stigma, the Massachusetts opinion observed. The medical community itself is divided over PAD, evidenced by amici in the case. In the absence of a fundamental right, state criminal law easily survives rational-basis review for substantive due process.

The Supreme Judicial Court recognized its own power and responsibility, in contrast with the more conservative U.S. Supreme Court, to tend and grow the scope of fundamental rights protected in Massachusetts, adapting the state Declaration of Rights to new social challenges. The Massachusetts court exercised that very power when it approved same-sex marriage in the commonwealth in Goodridge v. Department of Public Health (2003), 12 years before the U.S. Supreme Court did likewise for the nation in Obergefell v. Hodges (2015).

Voters reject the PAD initiative in Massachusetts in 2012.
Emw & Sswonk via Wikimedia Commons CC BY-SA 3.0

But the milieu in Massachusetts is hardly conducive to Goodridge delivering this plaintiff ball across the goal line, the court concluded. To the contrary, the court observed, Massachusetts voters rejected a PAD ("Death with Dignity") ballot initiative in 2012 (51% to 49% in "ferocious political battle"), "over a dozen bills" to legalize PAD have failed in the legislature, and statutes regulating healthcare affirmatively disallow PAD counseling.

The court opinion includes an intriguing discussion of standing. The case was something of a put-on, because local prosecutors did not threaten the plaintiff physician with prosecution. Again, the court acknowledged that doctors engage in PAD now, if quietly, criminal law notwithstanding. In reality, there is not a bright line between PAD and appropriate palliative care, or between "terminal sedation" and "palliative sedation." Prosecutors helped plaintiffs to sustain the case by saying that they would not decline to prosecute.

In the end, the court decided the case only in the matter of the physician. The court rejected the plaintiff patient's claim because he had not been given a six-month prognosis, and his cancer remained susceptible to treatment by multiple options. In the patient's defense, I'm not sure someone with a six-month prognosis would have time to prosecute the case to the high court, nor should be expected to. Justice Dalila Argaez Wendlandt aptly dissented on the point. The patient here submitted that he did not necessarily want PAD, but wanted to have the option to be counseled for it if the need arises. Anyway, the court allowed standing for the doctor on a theory of jus tertii ("third-party right"), when one person is allowed to assert the rights of another upon a close nexus of interests. This notion is implicated on the issue of standing in the mifepristone case now before the U.S. Supreme Court.

In separate opinions, Justices Wendlandt and Elspeth B. Cypher left the door ajar to a rights argument on the right facts. Justice Cypher wrote that some "constitutional zone of liberty and bodily autonomy" should preclude prosecution for "late-stage palliative care." Justice Wendlandt reasoned similarly that as a patient approaches death, the state interest in preserving life by way of criminal law wanes, eventually even as to fail rational-basis review of a "nonfundamental right."

Nothing about the court's opinion precludes the state legislature from reengaging with PAD, which has been legalized in the northeast in New Jersey, Maine, and Massachusetts neighbor Vermont.

The case is Kligler v. Attorney General, No. SJC-13194 (Mass. Dec. 19, 2022), available from the Alliance Defending Freedom, a conservative religious freedom advocacy group that participated as amicus on the side of the Attorney General.

Sport researchers examine athlete dissent online

Spencer Peltz, my brother, has published a co-authorship, "Athletes’ Displaced Dissent on Social Media: Triggering Agents, Message Strategies, and User-Generated Responses," in Communication Quarterly from Taylor & Francis.

Here is the abstract:

Organizational dissent is ubiquitous in task-oriented groups, including sports teams and leagues. Yet, how and to whom that dissent is voiced and the responses to dissent can vary extensively. This study investigates how professional athletes enact displaced dissent and how the public reacts via sentiment analysis of Trevor Bauer’s YouTube channel. Findings identified 53 triggering agents that were consistent with those of subordinates in traditional workplaces. A novel triggering agent of external stakeholder management was also identified, which addressed Major League Baseball’s focus and consideration for its public, their interest in baseball, and relationships with athletes. Bauer expressed his dissent via 94 messages, mainly featuring a combination of rhetorically effective strategies and emotional release. Sentiment analysis of commenters’ 1,612 replies revealed rhetorically competent messages were either unassociated with or enhanced negative sentiment, but positive sentiment was created through entertainment (i.e. humor and pressure), inclusion (i.e. coalition building), and shared ideals (i.e. inspiration).

Gregory A. Cranmer, Brandon Boatwright, Jimmy Sanderson, and Angeline Scheinbaum co-authored the article with Peltz, who was the only contributor without a Ph.D. (I know the feeling.) Cranmer is a professor at Clemson University, where he was generously supportive of Peltz, who completed his bachelor's there last year.

Peltz is a digital marketing specialist at Forefront Networks in Austin, Texas.

Lissens presents EU data protection, IoT research

Sylvia Lissens, a Ph.D. student and teaching assistant at the KU Leuven Centre for Global Governance Studies in Belgium, presented part of her doctoral research comparing U.S. and EU data protection law at a doctoral seminar in Lyon, France, in December.

In her research, Lissens focuses on the internet of things (IoT) to examine how American and European law protects the personal data that machines increasingly collect. She has a law degree from KU Leuven and a background in criminology, so is especially interested in government access to personal data, which has been a sticking point in trans-Atlantic privacy negotiations.

Looking at the emerging norms in state legislation in the United States, on the one hand, and at developing data protection jurisprudence in the European Union, on the other hand, Lissens hopes to identify points of convergence and divergence that might smooth the way forward for agreement over data flows.

In Lyon, Lissens presented findings from the EU leg of her research at the International Doctoral Seminar in European and International Human Rights Law, hosted by the Université Jean Moulin Lyon 3. She explained how the broad range of data collected by devices in our homes, from phones to refrigerators, will confront national security and international trade regimes with new challenges in the protection of personal privacy.

Comparative law is among Lissens's teaching responsibilities at KU Leuven. She joined my Comparative Law class by Zoom this semester to provide an EU perspective on contemporary European legal issues. Students' experience was greatly enriched by both her experience as a professional and her informed perspectives as a Belgian voter. I'm privileged to serve on Lissens's dissertation committee.

Paraguay remembers Pres. Rutherford 'Baller' Hayes; still scarred by 1860s war, Paraguay nears election

RBH & I at the Museo Municipal de Villa Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

UPDATE, May 10: The incumbent Colorado Party prevailed in the Paraguayan presidential election on April 30.

The tie between 19th-century U.S. President Rutherford B. Hayes and the distant South American nation of Paraguay endures there today, resonating at the heart of issues in the upcoming Paraguayan presidential election.

Presidential Ballers

Comedian Stephen Colbert joked in October 2022 about Rutherford B. Hayes, bringing to mind a President of curious and far-ranging legacy.

Former President Barack Obama had released a get-out-the-vote video in which he informed young voters who he is and boasted of "the best jump shot in White House history." "He has the best jump shot," Colbert conceded in his Late Show monolog. "But not the best dunk. That was President Rutherford B. Hayes. The 'B' stands for baller."

Colbert showed an amusingly doctored image of a bearded and head-banded Hayes dunking (video below via Internet Archive).

The Real Rud B.

In reality, the "B" was for Birchard, the maiden surname of Hayes's mother, Sophia. She raised Hayes and his sister as a single mom. Hayes's father died before Hayes was born.

An Ohioan, Hayes was a lawyer and abolitionist. He made a name for himself with vigorous and creative representation of fugitive slaves. Hayes was shot while fighting for the Union in the Civil War. His military service was lauded by President Ulysses S. Grant (whose 201st birthday is upcoming), whom Hayes succeeded in the presidency in the Compromise of 1877, resolving the contested election of 1876. Part of the compromise involved withdrawing federal forces from the South, which did no favor for people emancipated from slavery. Hayes can be credited, though, for appointing "the great dissenter" of the Reconstruction era, John Marshall Harlan, to the U.S. Supreme Court.

The flag of Departamento de Presidente Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

Villa Hayes

It happened, also in October 2022, that I visited a distant legacy of President Hayes, a city and department in Paraguay named for him. Departmental capital Villa Hayes, north of Asunción on the Paraguay River, is in the Gran Chaco region. The region was at the heart of the territorial conflict in the War of the Triple Alliance. The devastating and brutal guerilla conflict, the worst of its kind in Latin American history, embroiled Paraguay in war with neighbors Argentina, Brazil, and Uruguay.

Hayes exhibit at the Museo Municipal de Villa Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

After the war ended, in 1876, Argentina and Paraguay disputed their post-war border and asked U.S. President Hayes to arbitrate. Though Argentina had substantially prevailed in the war, Hayes sided with Paraguay in the border dispute and awarded the country the bulk of the Gran Chaco.

To the present day, the region speaks to the arbitrariness of war. Beautiful as it is, the dry and sparsely populated Chaco has struggled to achieve agricultural and economic productivity. Moreover, the region was never really controlled by any of the modern nations that contested it, rather by the indigenous people who knew how to survive there and still do.

There is a parallel between this tribute to Hayes in Paraguay and the monument to President Grant in Guinea-Bissau that I saw and last wrote about in 2020. President Joe Biden recently having marked the 25th anniversary of the Good Friday Agreement in Belfast, it occurs to me that in modern times, the custom has ended of sitting presidents being enlisted personally in dispute resolution abroad.

Paraguayan Presidency

Relative to neighboring Argentina and Brazil, Paraguay lags in development, a long lingering effect of the War of the Triple Alliance. The settlement of the conflict left Paraguay as a buffer between the two Latin American powers. 

Paraguayans are frustrated by the chronic corruption and bleak jobs market that now threaten the long-running rule of the incumbent Colorado Party in the presidential election upcoming at the end of April. Still, the party, in the person of candidate Santiago Peña, an economics professor, has a sound shot at retaining power. Long historical experience with dictatorship manifests as distrust of challengers. Primaries in the fall were marred by a suspicious fire at election headquarters in Asunción. 

Polling in late March in the plurality-takes-all contest showed a narrow and probably statistically insignificant lead by attorney Efraín Alegre, a center-left candidate representing a coalition of more than 20 parties determined to displace the Colorado Party. Apropos of my recent lamentation on Chinese influence in Latin America, Alegre pledges to cut Paraguay's diplomatic ties with Taiwan to smooth the way for Paraguayan soy and beef exports to China.