Hertz/Thrifty takes reservations for cars it doesn't have, stranding customers; worse, that's the business model

I've been locked in pre-litigation combat with Hertz Corp. for almost a year, and I'm tapping out.

The problem is simple: The Thrifty Car Rental (Thrifty is a Hertz company) at Memphis Airport (MEM) has been renting cars that it doesn't have. Customers get stranded for hours, until a car comes in, rolling the problem forward. And Hertz is OK with it.

Frustrated Thrifty customers wait hours for cars in Memphis (Mar. 2023).
There's not even seating. RJ Peltz-Steele CC BY-NC-SA 4.0

Here's a rough timeline.

● March 2023: I show up for a car rental in Memphis with a time-sensitive work schedule. They're "out of cars." Lots of people are milling about in the same predicament.  Hours later, I get a car, not before my work plans are screwed up. A check of online reviews reveals that this is business as usual for Thrifty MEM.

● Later March 2023: I complain to Thrifty and the Tennessee AG and ask for just one day's refund and that the deceptive practice be abated.

● May-June 2023: Hertz Executive Customer Service reaches out to offer $50 off a future rental and pledges that what I experienced is not Hertz/Thrifty's normal mode of business. In exchange for the coupon and assurance, I drop the matter with the Tennessee AG.

● October 2023: I discover that the $50-off coupon is a sham.  The coupon can only be redeemed at the rental counter.  Premium for paying at the rental counter: $50.  I ask the Tennessee AG to reopen the matter. 

● Also October 2023: I investigate online reviews of Thrifty MEM and discover that they still are renting cars they don't have, leaving customers stranded for hours or longer. I report my finding to the Tennessee AG. The Tennessee AG suggests I also report the matter to Hertz's home jurisdiction, Florida. So I forward the report to the Florida AG.

● November 2023: In response to my reopening of the settlement with the Tennessee AG, Hertz says take a hike. The Tennessee AG closes the matter, because, you know, what can you do.

● December 2023: I send Hertz a demand letter, alerting the company that sending a sham coupon to a Rhode Island resident and knowingly doubling down on the sham renders the company liable for treble statutory damages of $1,500 under R.I. consumer protection law.

● January 2024: Hertz gives me 1,900 "Gold Plus Rewards" points for one day's car rental, in place of the $50 coupon.  I find out the points are just as useless when I need a rental from IAD to BWI; points can't be used on one-way rentals.  Meanwhile, Hertz replies angrily to my report to the Florida AG, accusing me of seeking unjust enrichment by complaining in multiple states. Oh, and Hertz tells me again to go take a hike.

That brings us to today.

---

Feb. 12, 2024

Hertz Corp. d/b/a Thrifty Rental Car
Attn.: General Counsel
8501 Williams Rd.
Estero, Fla. 33928

Open Letter

Dear sir or madam:

I write in regard to the matter originating in a car rental reservation with Thrifty at the Memphis International Airport on March 28, 2023; your subsequent proffer of a sham coupon for a subsequent Thrifty rental; my demand of Dec. 17, 2023, for compensation accordingly under Rhode Island consumer protection law; and your subsequent award of 1,900 “Gold Plus Rewards” points.

I accept your award of the points in abeyance of my demand.  I have grave doubts that the points are of any use to me.  I already have discovered that I could not use them for a one-way rental from IAD to BWI; they cannot be redeemed on one-way rentals.  And I don’t foresee a need in the future for a one-day car rental anywhere, certainly not before the points expire.  Nevertheless, I choose to see the award as a gesture of good faith.

In return, I ask just one more thing of you:  Hear me out on the following points.

(1) I never wanted from you money, coupons, or points.  I demanded the sum of only one day’s rental cost as nominal and symbolic. What I really wanted was simply that you stop your Memphis MEM Thrifty provider from accepting car reservations for cars they do not have, leaving customers stranded.  Ms. Walsh of Hertz Executive Customer Service wrote that that was not the business practice of Hertz and Thrifty (nor, one presumes, Dollar). That assurance was false. My investigation of online reviews revealed that the deceptive practice continued unabated at MEM. I subsequently rented from another company at MEM and saw the usual crowd of distressed travelers camped out at the Thrifty counter. Shame on you.

(2) A “$50 off”-at-the-counter coupon when you charge $50 more for transactions at the counter is a sham, plain and simple.  I reiterate, I didn’t want your coupon.  I would’ve dropped the matter if you simply abated the deceptive practice.  I decided to redeem the coupon only when it became clear that you were determined to continue to allow deception in your business at MEM.  Even to buy me off, you could not even make an honest offer. Shame on you.

(3) I informed the Tennessee and Florida AGs of the ongoing deceptive business practice at MEM.  Authorities should be informed, even if, as usual, they do nothing.  I forwarded the notice to the Florida AG only because the Tennessee AG bid me do so.  I did not ask for anything in Florida; I did not want dispute resolution in Florida.  The Florida AG, whether for incompetence or willful indifference, entered the notice into a private-dispute resolution system. Ms. Walsh responded in Florida with something like outrage that I had dared to complain about you in another jurisdiction. Let’s be clear: Your MEM provider was engaged in a deceptive business practice.  I notified civil enforcement authorities in that jurisdiction.  They urged me to notify civil enforcement authorities in Hertz’s home jurisdiction. So I did. I asked for nothing from or in Florida. Don’t accuse me of some kind of profiteering off of your poor choices.

You know as well as I do that you can get away with deception at MEM, and anywhere else you want to, and with your profound commitment to stick your head in the sand about it only because antitrust and consumer protection enforcement in your industry is a joke.  I wish I could say I’ll never rent again from Hertz companies. But of course I will. I won’t have a choice.

I understand how you get away with deception and subterfuge, but what I cannot understand is why.  It would be so easy simply to run an honest business.  Don’t accept reservations for cars you don’t have.  Don’t tell customers you’re doing one thing and do another.  If you give someone $50 off, give someone $50 off.  I’m sure Hertz is big and successful enough to stay in business without relying on deception.

Is it really so hard just to be honest?

Sincerely,

/s/ Rick J. Peltz-Steele

Cc: [Ms. Walsh]; [Tenn. AG]; [R.I. AG]; [Fla. AG]

Daggett discovered higher ed, world in senior life

Olive Daggett, 1927-2023
Legacy.com

Olive Daggett died on December 21, 2023, at the age of 96.

Olive was a friend, a leader in my church, and an astounding human being. Her passing was marked at Legacy.com and by The Providence Journal. Her memorial service last weekend at Barrington Baptist Church in Rhode Island is posted at Vimeo.

I memorialize Olive here at The Savory Tort because she was inspiriting in ways especially relevant to my personal and professional interests in education and internationalism.

For 40 years, Olive had a full life and worked a career in accounting for AT&T in New Jersey. Yet she had another life ahead, even before the eternal one. After retiring, she moved to Rhode Island. And then she enrolled at the University of Rhode Island and earned a four-year bachelor's degree.

Moreover, in the course of her university studies, as a senior, Olive studied abroad. She discovered a love for the world, twice studying in England and traveling on the continent. At Barrington Baptist Church, Olive gravitated to foreign missions. She became the church's missions secretary and coordinated missionary efforts globally for decades.

Faintly visible in the ProJo photograph, a pink- or purple-dyed streak ran through Olive's silver hair. Pastor Scotty Neasbitt recounted that Olive adopted the color in part to help her relate to youth in the church. Either it worked or she never needed any help; she was adored by all ages. Something about her genial character and zest for life made her transcendent of generations.

My wife and I were fortunate to have been able to visit with Olive when she was in hospice care in December. She was her usual jovial self. Secure in her faith, she had no fear of her mortal end. In so many ways, she was, and for all who remember her will remain, an inspiration.

Happy Year of the Wood Dragon

Happy lunar new year, and welcome, the Year of the Wood Dragon.

Read more about the symbolism of the wood dragon at South China Morning Post. 

This treasure of mine (pictured) is made in Indonesia, though I bought it at Camden Town in London.

Culp's critical perspectives endure in Chang lecture

Prof. Chang
Seattle Law

Professor Robert S. Chang delivered the inaugural Jerome M. Culp, Jr. Critical Theory Lecture at Duke Law School February 1.

Chang is professor of law and executive director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law. He spoke on, "How Do We Come to Participate in the Struggles of Those Who Are Not Us?" The lecture is posted at Panopto and on YouTube (embedded below, at bottom).

Chang traced contemporary racial differences in American history from the burning of Jamestown, Va., in the 17th century to the Civil War, Chinese exclusion laws, and, ultimately, the legal battle over affirmative action. Born in Korea, Chang's work emerges from ethnic perspective and personal experience growing up in small-town America.

My alma mater, Duke Law doesn't need me to do public relations. I mention the Chang lecture because of Professor Culp, for whom the lecture series is named. Culp was the first person of color to earn tenure at Duke Law, where he taught from 1985 until his death in 2004. He was, as Duke recounted, an internationally acclaimed critical theorist.

Culp also was my torts professor. As I tell students today, at that time, I didn't well understand Culp's MO. I suffered the common 1L affliction of wanting to know just what I needed to know. I yet saw law as learnable vocation, not profession, law school as mere trade school, not intellectual engagement with law and society. Culp didn't seem to be doing his part to make me a billboard attorney who could litigate a car accident.

I got past those hurdles. In time, I had the immeasurable good fortune of knowing Culp as a fellow academic. I came to understand that his 1L pedagogy was a cleverly subtle and seductive inculcation in critical theory. I came to appreciate him as one of my best law professors. His pedagogy powerfully shaped my approach to teaching torts, not to mention thinking about law and society in general. Culp is one of three academics to whom my Tortz textbook is dedicated.

The start of the Chang lecture video (from 2:05 to 7:50 at Panopto; YouTube cued and embedded below) features Professor Culp himself, some 20 years ago, complemented by affecting images, talking about his own life and how it motivated him to study and teach law.

To be clear, I'm not wholly in agreement with Chang on the merits of his talk, even if Culp might have been. Chang concludes that the U.S. Supreme Court decision contra affirmative action in 2023 represents an "intensification" of white racial identity and resurgent white supremacy. Chang's conclusion contains a kernel of concerning merit, but also provocatively overstates the matter.

I rather agree with what Professor Josh Blackman told an ABA program on viewpoint diversity at the Midyear Meeting in Louisville, Ky., last week: there has to be room to express a view of what the Fourteenth Amendment means, even if contra the acceptable "woke" ideology, without being branded "racist." 

Critical theory to me is, let's say, critical for exposing fault lines in our society that run contrary to our values and demand remediation. Accordingly, critical approaches form vital threads in my teaching.

But critical race theory does more harm than good when it muddies the distinction between malevolent racism and systemic inequality. And many adherents to critical theory (not necessarily Chang or Culp) go a dangerous measure further, encouraging generalizations about persons' intentions based on their skin color. I can't sign on to that.

Nevertheless, that some critical perspectives sit poorly with me doesn't mean we should avoid discussing them. Chang's lecture is a superb and coherent survey of race and American history with thought provoking implications for our time.

A nephew of mine (as a matter of fact, a young man who is racially Korean and grew up in small-town America) recently suggested to me that adults of my (13th) generation can sometimes be wrong.

I'm considering the possibility.

Mass. high court nominee brings tort law experience

Justice Wolohojian
Mass.gov

Massachusetts Governor Maura Healey Wednesday announced the nomination of Massachusetts Appeals Court Justice Gabrielle R. Wolohojian to the Supreme Judicial Court. 

UPDATE, Feb. 29: The justice was confirmed

Justice Wolohojian practiced with Big Law on "product liability cases, consumer class actions, false advertising claims, and other business and consumer transactions," according to her official bio. Governor Deval Patrick appointed her to the Appeals Court in 2008. She has a Ph.D. from Oxford and a J.D. from Columbia.

For Law360 (subscription), Julie Manganis reported as well:

Outside her legal work, Justice Wolohojian is ... a violinist who has performed with the Boston Civic Symphony for 35 years, and has served as president of the organization's board. She also serves as an overseer of a radio program called "From the Top," which features children performing classical music.

Justice Wolohojian has authored several Appeals Court opinions that I've featured here on The Savory Tort, all sound.

• Motel not liable for guest's suicide, court rules, despite family warning of risk, asking for room number (Sept. 2, 2022)
• Flawed instruction on 'reasonable alternative design' requires vacatur of tobacco defense judgment (July 20, 2022)
• Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments (Nov. 7, 2019)
• Best friend of teen struck, killed by train may claim negligence without physical injury, appeals court rules (Sept. 16, 2019)

There's been a fuss in the media over Justice Wolohojian once having been in a long-term relationship with the Governor. The relationship ended before the Governor was elected, and she is now with another partner. Governor Healey said nothing about the issue in the nomination announcement. Law360 and other media have reported that the bar and executive officials are "shrug[ging] off" the personal relationship as immaterial. I concur; Justice Wolohojian's bona fides are unimpeachable.

UPDATE, Feb. 29: 

Yesterday the justice was confirmed 6-1 by the Governor's Council. For Law360, Julie Manganis reported of the dissenting vote:

The lone member who voted against Justice Wolohojian, District 8 Councilor Tara Jacobs, said she still has "some concerns around the recusal situation," but said she was also troubled by the selection process, calling it "insular."

From an inclusion standpoint, it just felt very exclusionary in that you couldn't have a more insider nominee," said Jacobs, "and so I have concerns about that in terms of how it might dissuade people from applying who are not inside a network like that."

Jacobs also said she had another concern after meeting with Justice Wolohojian.

"My perception is she has breathed rarefied air from the time she was young, [in] her education and through her career, and my perception from that is she intellectualizes the marginalized community's struggle in a way that feels very much like a bubble of privilege and detached from the struggle itself, so I do have a concern whether justice is best represented through that lens," Jacobs said.

Mass. High Court Nominee Who Dated Gov. Confirmed 6-1 (Feb. 28, 2024) (subscription).

Criminal verdict in Mich. school shooting suggests parent vulnerability to civil negligence claims

2018 National School Walkout
Public domain via Rawpixel

The criminal conviction of gun-owning parent Jennifer Crumbley yesterday in the 2021 school shooting in Oxford, Mich., (e.g., USA Today via Courier Journal) got me thinking about parents' exposure to civil liability.

There's no question that parents of a minor-age school shooter can be held liable indirectly for injuries and deaths upon a theory such as negligent storage or entrustment of a firearm. There have been many civil lawsuits arising from school shootings upon analogous negligence theories leveled against school officials, police, gun sellers, and gun manufacturers.

What I do not know is whether there ever has been a civil verdict against a parent. A civil liability theory follows naturally upon a criminal conviction. But criminal prosecution of parents in these cases has been exceedingly rare, Crumbley's being the first such conviction.

Without the beyond-a-reasonable-doubt standard having been proved already in a criminal case, the civil negligence case presents daunting hurdles in duty and proximate causation. It's never easy to hold an earlier-in-time actor liable in negligence for the intentional criminal conduct of a later actor, whom judge and jury are likely to regard as a superseding cause. Such claims are not infrequent, though, and plaintiffs keep bringing them, because intentional criminal actors tend to lack assets that would make a plaintiff whole.

Brendan Pierson for Reuters reported a rundown in 2022 of civil actions in major school shootings: Uvalde, Texas; Columbine, Colo.; Red Lake, Minn.; Blacksburg, Va.; Newtown, Conn.; Parkland, Fla.; and Santa Fe, Texas. Claims that have been resolved so far have ended with settlements or defense verdicts.

Among those cases, Pierson mentioned claims against parents only in the report on the 2018 shooting in Santa Fe, Texas. In 2023, plaintiffs in the Santa Fe case settled with ammunition retailer Luckygunner (AP). The latest report I can find on the case against the parents, from the Daily News of Galveston County, Texas, said in December 2023 that the negligence case against the parents of Dimitrios Pagourtzis remains on the trial court docket.

Please comment here if you know of a civil verdict or settlement against parents in a school shooting case. I would be curious to know also whether homeowner insurers have covered or not covered in such cases.

Baltimore contractor, WWII infantry vet turns 100

© Used with permission.

Pete, a retired Baltimore, Md., contractor, WWII veteran, and my great uncle, turns 100 today, February 7.

Upon graduation from high school in Baltimore City in 1943, Pete was drafted into the 9th Infantry Division of the U.S. Army ("the Notorious Ninth"). He served in Europe for four years, remaining for several months after VE Day. He was awarded a Silver Star and Purple Heart and discharged as a second lieutenant.

Before Pete came home from Europe, he was able to visit family in Italy. About four decades later, he joined me for a trip to visit our cousins there again. In the electronic age, I've served as go-between for trans-Atlantic updates.

© RJ Peltz-Steele

Pete came home from the war to marry my great aunt, Velma, and to build a construction business in Baltimore. They started a family. Throughout their active years, Pete and Velma volunteered vigorously in Baltimore's Italian-American community, raising money for scholarships.

Pete retired to a quiet life of golf, reading, and doting grand-parenting in Baltimore County. We celebrated Sunday.

AI can make law better and more accessible; it won't

Gencraft AI image

Artificial intelligence is changing the legal profession, and the supply of legal services is growing even more disconnected from demand.

The latter proposition is my assessment, but experts agreed at a national bar conference last week that AI will change the face of legal practice for attorneys and clients, as well as law students and professors.

Lexis and Westlaw each recently launched a generative AI product, Lexis+ AI Legal Assistant and AI-Assisted Research on Westlaw Precision. One might fairly expect that these tools will make legal work faster and more efficient, which in turn would make legal services accessible to more people. I fear the opposite will happen.

The endangered first-year associate. The problem boils down to the elimination of entry-level jobs in legal practice. Panelists at The Next Generation and the Future of Business Litigation conference of the Tort Trial Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the ABA Midyear Meeting in Louisville, Kentucky, last week told audience members that AI now performs the work of first- and second-year associates in legal practice.

The change might or might not be revolutionary. Popular wisdom routinely describes generative AI as a turning point on the evolutionary scale. But panelists pointed out that legal research has seen sea change before, and the sky did not fall. Indeed, doomsayers once predicted the end of responsible legal practice upon the very advent of Lexis and Westlaw in displacement of books and paper—a transformation contemporary with my career. Law practice adapted, if not for the better in every respect.

It's in the work of junior attorneys that AI is having the greatest impact now. It can do the background legal research that a senior lawyer might assign to a junior lawyer upon acquisition of a new client or case. AI also can do the grunt work on which new lawyers cut their teeth, such as pleadings, motions, and discovery.

According to (aptly named) Oregon attorney Justice J. Brooks, lawyers are under huge pressure from clients and insurers to use AI, regardless of the opportunity cost in bringing up new attorneys. Fortune 500 companies are demanding that AI be part of a lawyer's services as a condition of retention. The corporate client will not pay for the five hours it takes an associate to draft discovery requests when AI can do it in 1.5.

Observers of law and technology, as well as the courts, have wrung their hands recently amid high-profile reports of AI-using lawyers behaving badly, for example, filing briefs citing sources that do not exist. Brooks said that a lawyer must review with a "critical eye" the research memorandum that AI produces. Insofar as there have been ethical lapses, "we've always had the problem of lawyers not reading cases," Illinois lawyer Jayne R. Reardon observed.

Faster and cheaper, but not always better, AI. There's the rub for newly minted associates: senior lawyers must bring the same scrutiny to bear on AI work that they bring to the toddling memo of the first-year associate. And AI works faster and cheaper.

Meanwhile, AI performs some mundane tasks better than a human lawyer. More than cutting corners, AI sometimes sees a new angle for interrogatories in discovery, Brooks said. Sometimes AI comes up with an inventive compromise for a problem in mediation, Kentucky attorney Stephen Embry said. AI can analyze dialogs to trace points of agreements and disagreement in negotiation, Illinois lawyer Svetlana Gitman reported.

AI does a quick and superb job on the odd request for boilerplate, North Carolina attorney Victoria Alvarez said. For example, "I need a North Carolina contract venue clause." And AI can organize quickly large data sets, she said, generating spreadsheets, tables, and graphics.

What AI cannot yet do well is good jobs news for senior lawyers and professors such as me: AI cannot make complex arguments, Brooks said. In fact, he likes to receive AI-drafted memoranda from legal opponents. They're easily recognizable, he said, and it's easy to pick apart their arguments, which are on par with the sophistication of a college freshman.

Similarly, Brooks said, AI is especially bad at working out solutions to problems in unsettled areas of law. It is confused when its training materials—all of the law and most of the commentary on it—point in different directions. 

In a way, AI is hampered by its own sweeping knowledge. It has so much information that it cannot readily discern what is important and what is not. A lawyer might readily understand, for example, that a trending theory in Ninth Circuit jurisprudence is the peculiar result of concurring philosophical leanings among involved judges and likely will be rejected when the issue arises in the Fifth Circuit, where philosophical leanings tend to the contrary. AI doesn't see that. That's where human insight still marks a peculiar distinction—for now, at least, and until I retire, I hope.

It's that lack of discernment that has caused AI to make up sources, Brandeis Law Professor Susan Tanner said. AI wants to please its user, Oregon lawyer Laura Caldera Loera explained. So if a lawyer queries AI, "Give me a case that says X," AI does what was asked. The questioner presumes the case exists, and the AI follows that lead. If it can't find the case, it extrapolates from known sources. And weirdly, as Tanner explained it, "[AI] wants to convince you that it's right" and is good at doing so.

Client confidences. The panelists discussed other issue with AI in legal practice, such as the importance of protecting client confidences. Information fed into an open AI in asking a question becomes part of the AI's knowledge base. A careless lawyer might reveal confidential information that the AI later discloses in response to someone else's different query.

Some law firms and commercial services are using closed AIs to manage the confidentiality problem. For example, a firm might train a closed AI system on an internal bank of previously drafted transactional documents. Lexis and Westlaw AIs are trained similarly on the full data sets of those proprietary databases, but not, like ChatGPT, on the open internet—Pornhub included, clinical psychologist Dan Jolivet said.

But any limited or closed AI system is then limited correspondingly in its ability to formulate responses. And closed systems still might compromise confidentiality around ethical walls within a firm. Tanner said that a questioner cannot instruct AI simply to disregard some information; such an instruction is fundamentally contrary to how generative AI works.

Law schools in the lurch.  Every panelist who addressed the problem of employment and training for new lawyers insisted that the profession must take responsibility for the gap that AI will create at the entry level. Brooks said he pushes back, if sometimes futilely, on client demands to eliminate people from the service chain. Some panelists echoed the tantalean promise of billing models that will replace the billable hour. But no one could map a path forward in which there would be other than idealistic incentives for law firms to hire and train new lawyers.

And that's a merry-go-round I've been on for decades. For the entirety of my academic career, the bar has bemoaned the lack of "practice ready" lawyers. And where have practitioners placed blame? Not on their bottom-line-driven, profit-making business models, but on law schools and law professors.

And law schools, under the yoke of ABA accreditation, have yielded. The law curriculum today is loaded with practice course requirements, bar prep requirements, field placement requirements, and pro bono requirements. We have as well, of course, dedicated faculty and administrative positions to meet these needs.

That's not bad in of itself, of course. The problem arises, though, in that the curriculum and staffing are zero-sum games. When law students load up on practice-oriented hours, they're not doing things that law students used to do. When finite employment lines are dedicated to practice roles, there are other kinds of teachers absent who used to be there.

No one pauses to ask what we're missing.

My friend and mentor Professor Andrew McClurg, retired from the University of Memphis, famously told students that they should make the most of law school, because for most of them, it would be the last time in their careers that they would be able to think about the law.

Take the elective in the thing that stimulates your mind, McClurg advised students (and I have followed suit as an academic adviser). Explore law with a not-nuts-and-bolts seminar, such as law and literature or international human rights. Embrace the theory and philosophy of law—even in, say, your 1L torts class.

When, like my wife once was, you're a legal services attorney struggling to pay on your educational debt and have a home and a family while trying to maintain some semblance of professional responsibility in managing an impossible load of 70 cases and clients pulling 24/7 in every direction, you're not going to have the luxury of thinking about the law.

Profit machines. What I learned from law's last great leap forward was that the "profession" will not take responsibility for training new lawyers. Lawyer salaries at the top will reach ever more for the heavens, while those same lawyers demand ever more of legal education, and of vastly less well compensated legal educators, to transform and give of themselves to be more trade school and less graduate education.

Tanner put words to what the powers-that-be in practice want for law schools to do with law students today: "Train them so that they're profitable."  In other words, make billing machines, not professionals.

Insofar as that has already happened, the result has been a widening, not narrowing, of the gap between supply and demand for legal services. Wealthy persons and corporations have the resources to secure bespoke legal services. They always will. In an AI world, bespoke legal services means humans capable of discernment and complex argument, "critical eyes." 

Ordinary people have ever less access to legal services. What law schools have to do is expensive, and debt-burdened students cannot afford to work for what ordinary people are able to pay.

A lack of in-practice training and failure of inculcation to law as historic profession rather than workaday trade will mean more lawyers who are minimally, but not more, competent; lawyers who can fill out forms, but not conceive new theories; lawyers who have been trained on simulations and pro bono hours, but were never taught or afforded an opportunity to think about the law. 

These new generations of lawyers will lack discernment. They will not be able to make complex arguments or to pioneer understanding in unsettled areas of law. They will be little different from and no more capable than the AIs that clients pay them to access, little better than a human equivalent to a Staples legal form pack.

These lawyers will be hopelessly outmatched by their bespoke brethren. The ordinary person's lawyer will be employed only because the economically protectionist bar will forbid direct lay access to AI for legal services.

The bar will comprise two tribes: a sparsely populated sect of elite lawyer-professionals, and a mass of lawyer-tradespeople who keep the factory drums of legal education churning out form wills and contracts to keep the rabble at bay.

The haves and the have nots. 

It's a brave new world, and there is nothing new under the sun.

The first ABA TIPS panel comprised Victoria Alvarez, Troutman Pepper, Charlotte, N.C., moderator; Laura Caldera Loera and Amanda Bryan, Bullivant Houser Bailey, Portland, Ore.; Professor Susan Tanner, Louis D. Brandeis School of Law, Louisville, Ky.; and Justice J. Brooks, Foster Garvey, Portland, Ore. The second ABA TIPS panel referenced here comprised Svetlana Gitman, American Arbitration Association-International Center for Dispute Resolution, Chicago, Ill., moderator; Stephen Embry, EmbryLaw LLC and TechLaw Crossroads, Louisville, Ky.; Reginald A. Holmes, arbitrator, mediator, tech entrepreneur, and engineer, Los Angeles, Cal.; and Jayne R. Reardon, Fisher Broyles, Chicago, Ill.

Naming rape suspects may draw criminal charges for journalists under Northern Ireland privacy law

Bernard Goldbach via Flickr CC BY 2.0

In Northern Ireland, it's a crime for a journalist to identify a rape suspect.

The relevant provision of the country's Justice (Sexual Offences and Trafficking Victims) Act 2022. Attorney Fergal McGoldrick of Carson McDowell in Belfast detailed the law for The International Forum for Responsible Media Blog in October 2023, just after the law took effect.

The law applies to a range of sexual offenses including rape. The prohibition expires upon an arrest warrant, criminal charge, or indictment. If prosecution does not expire the prohibition on identification, it remains in force until 25 years after the death of the suspect. The act amended preexisting privacy law to afford comparable anonymity to victims.

I have deep experience with this issue, and it is fraught. Despite my strong preference for transparency in government, especially in policing, the law has merit.

I was a university newspaper editor back in ye olden days of paper and ink. My newspaper reported vigorously on accusations of sexual assault against a student at our university by a student at a nearby university. The accusations and ensuing criminal investigation gripped the campus.

We learned the identity of both suspect and accuser. We reported the former and concealed the latter. Discussing the matter as an editorial board, we were uncomfortable with this disparity. Having the suspect be a member of our own community and the accuser an outsider amplified our sensitivity to a seeming inequity. We did take measures to minimize use of the suspect's name in the reporting.

These were the journalistic norms of our time. Naming the accuser was unthinkable. This was the era of "the blue dot woman," later identified as Patricia Bowman (e.g., Seattle Times). The nation was enthralled by her allegation of rape against American royalty, William Kennedy Smith. In the 1991 televised trial, Bowman, a witness in court, was clumsily concealed by a floating blue dot, the anonymizing technology of the time.

Smith was acquitted. The case was a blockbuster not only for TV news, but for journalism, raising a goldmine of legal and ethical issues around criminal justice reporting and cameras in the courtroom.

There was no anonymity for Smith. I went to a Society of Professional Journalists (SPJ) conference around this time, and the issues were discussed in a huge plenary session in a ballroom. The crowd exuded self-loathing for the trauma journalism itself had piled on Bowman. Objectivity be damned, many speakers beat the drums for the pillorying of the acquitted Smith.

The calculation in journalism ethics with regard to Smith, and thus to my editorial board, was that police accountability, knowing whom is being investigated, charged, or detained, and public security, alerting the public to a possible threat, or eliciting from the public exonerating evidence, all outweighed the risk of reputational harm that reporting might cause to the accused. Moreover, ethicists of the time reasoned, it would be paternalistic to assume that the public doesn't understand the difference between a person accused and a person convicted.

Then, in my campus case, the grand jury refused to indict. Our reporting uncovered evidence that the accusation might have been exaggerated or fabricated.

Our editorial hearts sank. Had we protected the wrong person?

My co-editor and I discussed the case countless times in the years that followed. We agonized. It pains me still today. Thirty years later, I find myself still retracing the problem, second-guessing my choices. It's like a choose-your-own-adventure where you feel like you're making the right choice each time you turn the pages, yet your steps lead you inevitably to doom.

Idealistically committed as we were at that age to freedom-of-information absolutism, we were inclined to the anti-paternalistic argument and reasoned that probably we should have named everyone from the start and let the public sort it out.

In our defense, a prior and more absolutist generation of norms in journalism ethics prevailed at the time. I was there at SPJ in the following years as leading scholars worked out a new set of norms, still around today, that accepts the reality of competing priorities and evinces more flexible guidance, such as, "minimize harm." Absolutism yielded to nuance. Meanwhile, the internet became a part of our lives, and both publication and privacy were revolutionized.

So in our present age, maybe the better rule is the Northern Ireland rule: anonymize both sides from the start. 

I recognize that there is a difference in a free society between an ethical norm, by which persons decide not to publish, and a legal norm, which institutes a prior restraint. I do find the Northern Ireland rule troublesomely draconian. The law would run headlong into the First Amendment in the United States. Certainly, I am not prepared to lend my support to the imprisonment of journalists.

Yet the problem with the leave-it-to-ethics approach is that we no longer live in a world in which mass media equate to responsible journalism. From where we sit in the internet era, immersed in the streaming media of our echo chambers, the SPJ Code of Ethics looks ever more a relic hallowed by a moribund belief system.

In Europe, the sophisticated privacy-protective regime of the General Data Protection Regulation (GDPR) is more supportive than the U.S. First Amendment of the Northern Ireland approach. The UK continues to adhere to the GDPR regime since Brexit. The GDPR reflects the recognition in European law of privacy and data protection as human rights, to be held in balance with the freedoms of speech and press. Precisely this balance was at issue in 2022, in Bloomberg LP v. ZXC, in which the UK Supreme Court concluded that Bloomberg media were obligated to consider a suspect's privacy rights before publishing even an official record naming him in a criminal investigation.

McGoldrick wrote "that since Bloomberg most media organisations have, save in exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such identification is in the public interest."

Maybe the world isn't the worse for it.

Taxpayers help to fatten Big Law in prosecution that Chinese community chalks up to racial profiling

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The American trend to embrace attorney fee-shifting is a cash cow for the corporate defense bar. A pending case speaks to the problem, as the Government seeks more than $600,000 in fees on behalf of white-shoe law firms from a man whom civil rights advocates say was racially profiled.

Waning of "the American Rule."  The American legal system is unusual in the world for its default rule that every party pays its own way in litigation. This "American rule" contrasts with "the English rule," adopted in most of the world's jurisdictions, by which "loser pays."

But in part in acknowledgement of the abnormally high transaction costs, especially attorney fees, of litigation in the United States, some statutory systems have adopted the English rule. In civil rights, for example, key federal statutes require fee-shifting to victorious plaintiffs. The concern is that the victims of civil rights violations will not otherwise be able to incentivize lawyers to take their cases.

That logic has leached out of civil rights, though, into ever more adjacent areas of legal practice. Most civil claims are filed against corporations, and most civil claims are unsuccessful. So corporations and their lawyers have been keen to think of new ways to be paid for their trouble, if not to deter lawsuits to begin with. 

A key such area is anti-SLAPP, that is, legal measures against "strategic lawsuits against public participation." Anti-SLAPP, about which I have written many times, is wildly popular with lawmakers: now the law in a majority of states, perennially proposed in Congress, and presently being drafted into EU law.

Anti-SLAPP began as a modest and rational means to deter corporations from weaponizing frivolous litigation against protestors, silencing them with legal fees. Thus, many anti-SLAPP laws penalize unsuccessful civil plaintiffs by charging them for the defendant's attorney fees. But the corporate media defense bar fell in love with anti-SLAPP. It's now a potent weapon for corporations to silence persons who dare say they've been defamed, or had their privacy invaded, in mass publication. 

It's important to remember that just because a plaintiff is unsuccessful in civil litigation does not mean that the plaintiff was not wronged. Defamation and privacy law is rife with defendant-friendly mechanisms designed to over-protect media defendants from even meritorious claims, from evidentiary privileges, to limitations on discovery, to daunting burdens such as the New York Times Co. v. Sullivan (U.S. 1964) "actual malice" standard. Anti-SLAPP piles on another prophylactic defense, one that works so fast, a defendant need not even answer the complaint.

I've been consistent in my opposition to anti-SLAPP's poisonous growth, especially its fee-shifting penalty. Frequent litigant Donald Trump, by the way, has been on both sides of anti-SLAPP fees, having been awarded nearly $300,000 in attorney fees against Stormy Daniels in response to her claim of defamation. It sometimes amuses me and sometimes saddens me to see civil rights advocates, journalists, and media law professors align themselves with mega-corporations in publishing, eager to line the pockets of Big Law.

United States v. Yu. The instant case is criminal, not civil. But the case involves a civil restitution statute that allows for a criminal defendant to be charged with the legal fees incurred by a "victim." 

Haoyang Yu, a naturalized U.S. citizen of Chinese descent, was a Boston-area engineer charged with 21 crimes in connection with his work developing chip technology for Analog Devices, Inc. (ADI). The court dismissed one charge and acquitted Yu of another before submitting 19 charges to the jury. The jury acquitted Yu of 18 charges and convicted him of one only: illegal possession of trade secrets. 

More or less, Yu took his work home with him, and his work included a proprietary chip design. The government had accused Yu of much worse: intention to steal ADI tech either to start his own company or to pass research to the Chinese government. Yu was caught up in a government crackdown amid fear of foreign espionage in the American tech industry. The evidence did not bear out the suspicion.

Critics point to Yu's Chinese origin and ancestry to allege that he was a victim of racial profiling. The trial judge in the case even acknowledged, "It's hard to say that Mr. Yu’s race or ethnicity was not a factor here" (Lexington Observer, June 2, 2023). APA (Asian Pacific American) Justice has tracked Yu's case. The Intercept covered the case in 2022. Critics pointed out that allegations such as those in Yu typically are resolved in mere civil litigation over theft of trade secrets. Yu was sentenced to six months' imprisonment and a fine, and then was sued by ADI.

The part of the case pertinent here is the Government's motion in federal district court that Yu be ordered to pay $606,879 to ADI attorneys at high-end firms WilmerHale and Quinn Emanuel. The Government invoked the Mandatory Restitution to Victims Act (MRVA).

The MRVA was enacted in 1996. A U.S. Department of Justice (DOJ) summary of the law doesn't much conjure a corporation as the kind of "victim" the law was meant to help. DOJ imagined "[v]ictims of crimes such as telemarketing, child exploitation, interstate domestic violence and sexual assault." The summary contemplates victims' "lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense."

In contrast, the fat legal bills in Yu include, according to, e.g., Brian Dowling at Law360 (subscription), $1,865 per hour for a Quinn Emanuel partner to watch the trial from the gallery. Other hourly rates at Quinn range from $320 for a paralegal, $880 for a second-year associate, and $1,095 for a fourth-year associate, to $1,440 for "counsel."

When I was in practice in the mid-1990s, as a first- and second-year associate, my billing rate with Big Law in Baltimore and Washington, D.C., was in the neighborhood of $120 per hour. I made about $25 per hour. Today, in academics, I make about $115 per hour (unrealistically assuming I work only 40 hours per week for nine months). According to public data, my students graduating UMass Law today will make about what I did in 1995, public or private sector. No adjustment for inflation.

Multiplying out the Quinn counsel rate yields $2.88m per year. Even if only 20% is paid out in salary, that's $576,000 per year. Not bad. I bet, though, that the $1,865/hr. attorney, a former Acting U.S. Attorney, takes home better than 20%. I guess the difference between the 1990s and now is that back then, shame was still a thing. 

Meanwhile, the bar is eager to tell law schools that it no longer can afford to mentor and train lawyers on the job, and that we should purge from the curriculum the esoteria of legal theory and public policy in favor of producing "practice ready" billing machines.

Quinn Emanuel has an entertainment and media litigation group that defends defamation and privacy claims for mass-market publishers. If I find myself defamed or otherwise wronged by a Quinn Emanuel media client, I shudder to think what the tab might be if I sue, but can't prove actual malice. Thanks to anti-SLAPP fee-shifting, Quinn Emanuel can be very well compensated even if one of its clients is negligent in decimating a person's reputation.

Next time a purported champion of the First Amendment or Fourth Estate tells you what a good idea anti-SLAPP is, think about the mahogany furniture and extravagant lifestyle of the Big Law Boston lawyer.

In an MRVA case, Big Law even gets the benefit of taxpayer-funded litigation to get paid, as the Government carries on the demand on behalf of the "victim."

The parties in Yu are now wrangling over the fee demand. The court asked the Government to break down the ask in a spreadsheet. The Government filed a data disc in December.

The case is United States v. Yu (D. Mass. indictment filed 2019), Judge William G. Young presiding.