Town asserting 'full-on assault of stink' wins latest round in nuisance feud with hot-mix asphalt maker

Quarry and asphalt manufacturing facility in England.
Richard Law via Wikimedia Commons GNU 1.2

An asphalt plant that residential neighbors blamed for burning eyes and sore throats is a public nuisance, the Massachusetts Appeals Court affirmed Friday.

There's been much hand-wringing over the use, and argued misuse, or even abuse of public nuisance law in recent years, from me included. The sub-subject is addressed in my recent 2 Tortz (2024 rev. ed.) (SSRN), and a recent book by the insightful Prof. Linda Mullenix sits on my desk, patiently awaiting attention.

But Friday's case is a reminder that sometimes, a public nuisance is just a nuisance.

The defendant's property, in Acushnet, Massachusetts, on the commonwealth's south coast and just 10 minutes from my work, was a quarry since the 1890s and an asphalt plant since the 1950s, the court recounted. Then in 2021, owner P.J. Keating (PJK) started operating a newly constructed hot-mix asphalt plant located closer than its predecessor facility to neighboring residential properties. Subsequently, local resident complained to the Acushnet Board of Health of noxious odor and burning eyes, noses, and throats.

The board ultimately sent two investigators, one its own agent and one a hired expert. Both validated the complaints. The board's agent reported, according to the court, that "the odor was 'horrendous,' lasted throughout his fifteen-minute visit, made his eyes water, and left him feeling dizzy for one-half hour after leaving the site.... He testified that at the home of one resident, he rated the odor as level four [of seven], but at another home he rated the odor as a seven for the duration of his visit, a 'full-on assault of ... stink.'"

PJK provided contrary evidence. PJK told the board that it complied with the toughest regulatory standards, and its activity comported with the property's industrial zoning. PJK cast doubt on the credibility of the complainants, showing that a great many complaints came from relatively few neighbors. And some complaints occurred at times when the plant was not operating, PJK submitted. PJK also submitted expert evidence to argue that any odors or fumes posed no risk to public health.

Some of the disconnect might have resulted from the source of odors or fumes being transport trucks rather than the plant itself, the board expert suggested. When the mixing facility was located deeper in the property, the hot-mix asphalt had more time to cool while it was loaded into the trucks. With the new facility, trucks were loaded and hit the road, close to residences, while the asphalt was still hot.

Either way, the problem before the Appeals Court was not really one of merits. After the Board of Health ordered PJK to cease and desist until it could get its emissions under control, PJK sought and obtained relief in the Superior Court. The Superior Court ruled that the board's decision was arbitrary and capricious and not supported by substantial evidence, so annulled the cease and desist.

Hardly so, the Appeals Court ruled: "We think it plain that the record contains substantial evidence supporting the board's conclusion that PJK's plant is a public nuisance." The board might have given witness testimony more credit than PJK cared to, but that's the job of the fact-finder. The board received abundant evidence from both sides, so its conclusion was neither arbitrary nor unsubstantiated.

As a point of interest, the court observed that the board's legal determination must be given some latitude. Quoting the state high court from 1952, "[b]oards of health are likely to be composed of laymen not skilled in drafting legal documents, and their orders should be read with this fact in mind. They should be so construed as to ascertain the real substance intended and without too great attention to niceties of wording and arrangement."

At a deeper level, the simple case is indicative of the challenge at the heart of public nuisance doctrine, a division between the powers of the judiciary, resonating in corrective justice, and the powers of the political branches, resonating in distributive justice.  Public nuisance cases are difficult because they put the courts in the position of enforcing amorphous public policy, here, enjoining the operation of a lawful business.

In this vein, it's telling that PJK relied on its full compliance with zoning laws, industrial regulations, and public health and environment laws. The strategy effectively argues that the question presented already has been decided by the political branches, so the courts should not second guess. If residents don't want an asphalt plant next door, the argument goes, their remedy is with the zoning commission. To burden a business beyond substantial regulation is to invite courts to interfere with the economy: not their job.

In another state, that argument might win the day. Massachusetts courts are less solicitous, or more willing to assert regulatory authority, if there is no plain political mandate to the contrary. The court here agreed with the board that just because asphalt-mixing odors and fumes are not regulated, or are regulated only at extremes—in fact, the EPA deregulated asphalt manufacturing emissions in 2003—does not mean there is no risk to public health, nor even that emissions are not carcinogenic.

One need look no farther than PFAS to show that non-regulation is not necessarily indicative of safety.

The outcome here is bad news for a nasty collateral litigation brought by PJK in 2022 against the Town of Acushnet.

The PJK suit in federal court demands $50 million dollars for losses in stalled productivity at the facility. PJK accused the town of regulatory taking through "a series of deliberate, methodical, concerted, and systematic actions to specifically target Plaintiffs and the Property and to stop the legal, longstanding operations on the Property," WJAR reported in January. According to PJK, "the [board agent] has stated that 'the Town hired him "to make PJK's life a living hell."'" 

Currently in discovery, the federal case is Tilcon, Inc. v. Acushnet, No. 1:22-cv-12046 (D. Mass. filed Dec. 2, 2022).

Friday's case is P.J. Keating Co. v. Acushnet, No. 23-P-629 (Mass. App. Ct. Apr. 12, 2024) (temporary state posting). Justice Peter W. Sacks wrote the unanimous opinion of the panel, which also comprised Justices Meade and Massing.

UMass Law inaugurates comparative law study abroad

UMass Law School has announced a two-week study abroad program in Lisbon, Portugal, in partnership with Universidade Católica Portuguesa (UCP), focused on U.S.-EU comparative law.

I'm quick to call out my employer when it does something bone-headed, so I should be willing to give praise when it does something right. This is the latter.

In 28 years of university teaching, I've consistently had to persuade deans that internationalism matters. Some, not always nor wholly to their discredit, have been so absorbed by the burdens of making the world better locally that they have not had the bandwidth to think about other cities and states, much less countries.

Some have just been fools. Like the one in Arkansas who told me that "our students don't care about that" to reject my proposed partnership with a Mexican school when Arkansas had the fastest growing per capita Latino population in the country, a new Mexican consulate was opening in Little Rock, and we supposedly cared about diversity.

It was a shock, then, to find that the new top dean this academic year at UMass Law, Sam Panarella, believes that international engagement is a vital component of being a good law school. Thanks to his leadership in just his first year as dean, 10 students from UMass Law will journey to Lisbon this very year to study the comparative law and policy of U.S. and EU data protection.

Rhode Island and the south coast of Massachusetts, where UMass Law is located, are home to the largest Portuguese-American population in the United States by a wide margin. So the program is a welcome and logical fit for 14-year-old UMass Law School. The program is made possible, especially for students, by generous support from the Center for Portuguese Studies and Culture at UMass Dartmouth, which does important work in its cultural niche.

We plan to repeat the Lisbon program in future years, in other areas of comparative focus, taking advantage of the varied expertise of law faculty at UMass and UCP. There are hurdles to overcome. But I'm hopeful that this is just the beginning of UMass Law's portfolio on international engagement.

Women 'knew their place' turns out to be losing union argument to justify discrimination in port jobs

Herman Melville boarded the Acushnet at New Bedford Harbor in 1841.
RJ Peltz-Steele, 2022, CC BY-NC-SA 4.0

From the Massachusetts Appeals Court today, a reminder that however far we've come, we've yet so far to go.

Specifically, [plaintiff-appellee] Robar alleged that she was passed over for work [at the Port of New Bedford, Mass.] as a forklift operator in favor of men who not only were less qualified than she was, but who—unlike her—lacked a mandatory qualification for the position. When given the opportunity to respond, the union's then-treasurer (later president and business agent), Edmond Lacombe, supplied a written statement that proved unhelpful to the union's defense. Specifically, among other things, he recounted that the women who were hired for the traditionally female positions "did not complain"; rather, "[t]hey, more or less, knew their place when work was issued and accepted the outcome."

The union was the defendant-appellant in the case, because its referrals to the employer were de facto selections for hiring. Perhaps needless to say, the court affirmed for the plaintiff on the merits. The court also rejected the union's contention that the National Labor Relations Act preempted enforcement of state labor law, rather finding the subject-matter jurisdiction concurrent.

The case is International Longshoremen Association, Local 1413-1465 v. Massachusetts Commission Against Discrimination (Mass. App. Ct. Apr. 3, 2024) (temporary state posting). Justice James R. Milkey wrote the unanimous decision of the panel, which also comprised Chief Justice Green and Justice Grant.

Free torts textbook ready for academic year 2024-25

TORTZ: A Study of American Tort Law is complete and revised for the coming academic year 2024-25.

The two-volume textbook is posted for free download from SSRN (vol. 1, vol. 2), and available in hardcopy from Lulu.com at cost, about $30 per volume plus shipping.

• SSRN volume 1
• SSRN volume 2
• Lulu.com hardcopies

This final iteration of the book now, for the first time, includes its final three chapters: (16) interference and business torts, (17) government liability and civil rights, and (18) tort alternatives.

---

TORTZ TABLE OF CONTENTS

Volume 1

Chapter 1: Introduction

A. Welcome
B. The Fundamental Problem
C. Parameters
D. Etymology and Vocabulary
E. “The Pound Progression”
F. Alternatives
G. Review

Chapter 2: Intentional Torts

A. Introduction
B. Assault

1. History
2. The Restatement of Torts
3. Subjective and Objective Testing
4. Modern Rule
5. Transferred Intent
6. Statutory Torts and Harassment

C. Battery

1. Modern Rule
2. The Eggshell Plaintiff
3. Knowledge of a Substantially Certain Result
4. Common Law Evolution and Battered Woman Syndrome

D. False Imprisonment

1. Modern Rule
2. Problems

E. Intentional Infliction of Emotional Distress (IIED)

1. Dynamic Intent
2. Modern Rule
3. The “Heart Balm” Torts

F. Fraud

1. Fraud in Context
2. Modern Rule
3. Pleading Fraud
4. Exercise

G. The “Process” Torts

1. Innate Imprecision
2. Modern Rule
3. Majority Rejection of Malicious Civil Prosecution

H. “Prima Facie Tort”

1. Origin of Intentional Tort
2. Modern Rule

Chapter 3: Defenses to Intentional Torts 

A. Introduction
B. Defenses of Self, Other, and Property
C. The Spring Gun Case
D. Arrest Privilege and Merchant’s Privilege
E. Consent

1. Modern Rule
2. Scope of Consent
3. Medical Malpractice
4. Limits of Consent

F. Consent in Sport, or Recklessness

1. The Problem of Sport
2. Recklessness

Chapter 4: Negligence

A. Introduction
B. Modern Rule
C. Paradigmatic Cases
D. Historical and Theoretical Approaches to Negligence

1. Origin
2. Foreseeability
3. Custom
4. Augmented Standards
5. Economics

a. Introduction
b. “The Hand Formula”
c. Coase Theorem, Normativity, and Transaction Costs

6. Aristotelian Justice
7. Insurance and Loss-Spreading

E. Landowner Negligence, or Premises Liability

1. Theory of Duty and Standards of Breach
2. Common Law Tripartite Approach
3. Variations from the Unitary Approach in the Third Restatement
4. Applying the Framework, and Who Decides

F. Responsibility for Third-Party Conduct

1. Attenuated Causation, or “the Frances T.  Problem”: Negligence Liability in Creating Opportunity for a Criminal or Tortious Actor
2. Vicarious Liability and Attenuated Causation in the Employment Context: Respondeat Superior and “Direct” Negligence Theories

G. Statutory Torts and Negligence Per Se

1. Statutory Torts
2. Negligence Per Se

a. Introduction
b. Threshold Test
c. Three Mile Island

H. Medical Negligence
I. Spoliation of Evidence

1. Introduction
2. Minority Rule
3. Recognition or Non-Recognition of the Tort Approach
4. Majority Approach

J. Beyond Negligence

Chapter 5: Defenses to Negligence

A. Express Assumption of Risk (EAOR)
B. EAOR in Medical Negligence, and the Informed Consent Tort

1. Development of the Doctrine
2. The “Reasonable Patient” Standard
3. Modern Rule of Informed Consent
4. Causation in Informed Consent
5. Experimental Medicine

C. “Implied Assumption of Risk” (IAOR)

1. Everyday Life
2. Twentieth-Century Rule
3. Play and Sport
4. Work

D. Contributory Negligence

1. Twentieth-Century Rule
2. Complete Defense
3. Vitiation by “Last Clear Chance”

E. Comparative Fault
F. IAOR in the Age of Comparative Fault

1. The Demise of “IAOR”
2. Whither “Secondary Reasonable IAOR”?
3. Revisiting Mrs. Pursley at Gulfway General Hospital

G. Statutes of Limitations
H. Imputation of Negligence

Chapter 6: Subjective Standards

A. Introduction
B. Gender

1. The Reasonable Family
2. When Gender Matters

C. Youth

1. When Youth Matters
2. Attractive Nuisance
3. When Youth Doesn’t Matter

D. Mental Limitations

1. General Approach
2. Disputed Policy

Chapter 7: Strict Liability

A. Categorical Approach
B. Non-Natural Use of Land
C. Abnormally Dangerous Activities

1. Defining the Class
2. Modern Industry

D. Product Liability

1. Adoption of Strict Liability
2. Modern Norms
3. “Big Tobacco”
4. Frontiers of Product Liability

Chapter 8: Necessity

A. The Malleable Concept of Necessity
B. Necessity in Tort Law
C. Making Sense of Vincent
D. Necessity, the Liability Theory

Chapter 9: Damages

A. Introduction
B. Vocabulary of Damages
C. Theory of Damages
D. Calculation of Damages
E. Valuation of Intangibles
F. Remittitur
G. Wrongful Death and Survival Claims

1. Historical Common Law
2. Modern Statutory Framework

a. Lord Campbell’s Act and Wrongful Death
b. Survival of Action After Death of a Party

3. Problems of Application

H. “Wrongful Birth” and “Wrongful Life”
I. Punitive Damages

1. Introduction
2. Modern Rule
3. Pinpointing the Standard

J. Rethinking Death Compensation

Volume 2

Chapter 10: Res Ipsa Loquitur

A. Basic Rules of Proof
B. Res Ipsa Loquitur (RIL)

1. Modern Rule
2. Paradigmatic Fact Patterns

Chapter 11: Multiple Liabilities

A. Introduction
B. Alternative Liability
C. Joint and Ancillary Liability
D. Market-Share Liability Theory
E. Indemnification, Contribution, and Apportionment

1. Active-Passive Indemnity
2. Contribution and Apportionment
3. Apportionment and the Effect of Settlement

F. Rules and Evolving Models in Liability and Enforcement
G. Review and Application of Models

Chapter 12: Attenuated Duty and Causation

A. Introduction
B. Negligence Per Se Redux

1. The Problem in Duty
2. The Problem in Causation
3. The Problem in Public Policy

C. Duty Relationships and Causation Timelines

1. Introduction
2. Frances T. Redux, or Intervening Criminal Acts
3. Mental Illness and Tarasoff Liability
4. Dram Shop and Social Host Liability
5. Rescue Doctrine and “the Fire Fighter Rule”

a. Inverse Rules of Duty
b. Application and Limits

6. Palsgraf: The Orbit and the Stream

a. The Classic Case
b. A Deeper Dig

D. Principles of Duty and Causation

1. Duty
2. Causation

a. The Story of Causation
b. Proximate Cause in the Second Restatement
c. Scope of Liability in the Third Restatement
d. Proximate Cause in the Third Restatement, and Holdover Rules
e. A Study of Transition: Doull v. Foster

E. The Outer Bounds of Tort Law

1. Balancing the Fundamental Elements
2. Negligent Infliction of Emotional Distress (NIED)

a. Rule of No Liability
b. Bystanders and Borderline NIED

3. Economic Loss Rule

a. The Injury Requirement
b. Outer Limits of Tort Law
c. Loss in Product Liability and the Single Integrated Product Rule

Chapter 13: Affirmative Duty

A. Social Policy
B. The American Rule
C. Comparative Perspectives
D. Bystander Effect, or “Kitty Genovese Syndrome”

Chapter 14: Nuisance and Property Torts

A. Trespass and Conversion
B. Private Nuisance
C. Public Nuisance and the Distinction Between Private and Public
D. “Super Tort”

Chapter 15: Communication and Media Torts

A. Origin of “Media Torts”
B. Defamation

1. Framework and Rules
2. Defamation of Private Figures

a. Defamation Proof
b. Defamation Defense

3. Anti-SLAPP Defense
4. Section 230 Defense
5. Constitutional Defamation

a. Sea Change: New York Times Co. v. Sullivan
b. Extending Sullivan
c. Reconsidering Sullivan

C. Invasion of Privacy

1. Framework and Rules

a. Disclosure
b. Intrusion
c. False Light
d. Right of Publicity
e. Data Protection

2. Constitutional Privacy and False Light
3. Demonstrative Cases

a. Disclosure and Intrusion
b. Right of Publicity
c. Bollea v. Gawker Media

4. Data Protection, Common Law, and Evolving Recognition of Dignitary Harms

Chapter 16: Interference and Business Torts

A. Business Torts in General

1. Tort Taxonomy
2. The Broad Landscape
3. Civil RICO

B. Wrongful Termination
C. Tortious Interference

Chapter 17: Government Liability and Civil Rights

A. Sovereign Immunity

1. Federal Tort Claims Act (FTCA) and Foreign Sovereign Immunities Act (FSIA)
2. Text and History of the FTCA
3. Discretionary Function Immunity

B. Civil Rights

1. “Constitutional Tort”
2. Core Framework
3. Official Immunities
4. Climate Change

C. Qui Tam
D. Human Rights

1. Alien Tort Statute
2. Anti-Terrorism Laws

Chapter 18: Tort Alternatives

A. Worker Compensation

1. Introduction and History
2. Elements and Causation
3. Efficacy and Reform

B. Ad Hoc Compensation Funds

Space law program reaps lessons from House Atreides

Luca Galuzzi via The Wildcat Tribune, Dougherty Valley High School, San Ramon, Cal. CC BY-SA 2.5

My friend and colleague Tracy Reynolds, Staff Judge Advocate to U.S. Naval Medical Forces Atlantic, will lead a fascinating Dune II-contemporaneous panel next week.

Zoom registration is open and free for Friday, March 29, at 12 noon US EDT.

International Humanitarian Law in Space:
Lessons Learned from the Fall of House Atreides

What can we learn about resource scarcity, insider threats, and over-reliance on technology from Frank Herbert's novel Dune and its recent film adaptation? How may these lessons be applied in outer space, on the Moon, or on Mars? Join the American Red Cross IHL Program as our panel of distinguished legal experts examine a wide range of issues, from great power competition on Arrakis to the conduct of hostilities between the Atreides, Harkonnen, and Fremen.

The panel comprises:

• CDR Tracy Reynolds, United States Navy JAG Corps
• David Kohnen, the Captain Tracy Barrett Kittredge Scholar of War Studies and Maritime History at the US Naval War College
• Michelle L.D. Hanlon, Co-Director of the Air and Space Law Program at the University of Mississippi School of Law and its Center for Air and Space Law
• Thomas Harper, Senior Counsel, International Humanitarian Law, American Red Cross National Headquarters
• Namrata Goswami, author of Scramble for the Skies The Great Power Competition to Control the Resources of Outer Space

The program is sponsored by the American Red Cross and supported by the Space Law Interest Group of the American Society of International Law.

High court construes tenure contract to constrain faculty salary cuts at Tufts medical school

TUSM Arnold Wing, 2012, Boston
John Phelan via Wikimedia Commons CC BY 3.0

Academic freedom won a rare court victory last week when the Massachusetts high court allowed claims that Tufts University improperly reduced the salaries of tenured medical faculty.

(As an aside, I wrote just yesterday about academic freedom in the case of FAMU's efforts to fire the law school's first and only tenured Latina professor for speaking on a matter of public concern, namely, the school dean's contentious resignation. Please consider signing the letter in support of Prof. Maritza Reyes.)

In the scrappy remains of what academia has become, the Tufts School of Medicine (TUSM) in the late 2010s told eight faculty that they would have to bring in external research support to cover half their salaries and their lab space, or they would see their salaries and space cut. The eight plaintiffs didn't meet the new standards, and TUSM imposed the cuts.

As things usually go in these cases, the trial court awarded summary judgment to the defense. Much responsibility for the sorry state of academic tenure in the United States can be laid at the feet of its once defenders, such as the American Association of University Professors (AAUP), which became so enamored with procedural arcana in the early 20th century that it forgot the substantive rights it was supposed to be fighting for. I wrote in 2011 about this problem and the urgent need to address it then. The law too often says that as long as a university dots its is and crosses its ts, it can fire for any reason.

The typical bulwark in the tenure contract is simply that firing must be "for cause," a wishy-washy term that reduces the contract practically to year-to-year employment. A university can disavow termination as a violation of civil rights, then turn right around and point to bad breath and a disagreeable disposition as sufficient "cause." Judges usually are eager to defer to universities, reasoning that workers could strike better bargains if they wanted to; they have the AAUP working for them, after all.

Just such ambiguity contributed to the plaintiffs' grief in the instant case. The Massachusetts Supreme Judicial Court (SJC) opined that the term "economic security" in the Tufts tenure contract "is ambiguous." Upon the ambiguity, the term could be not be said to include a guarantee of lab space, and the lower court so concluded correctly.

A state high court typically would send plaintiffs packing wholesale upon deference to university interpretation of the contract. However, the SJC reversed and remanded, concluding that "more evidence is required regarding the customs and practices and reasonable expectations related to salary and full-time status for tenured professors at TUSM, and even other universities and medical schools," to determine whether the compensation reduction violated the contract.

Massachusetts is a labor-friendly state, for better and for worse. The courts are permissive, for example, in "wrongful termination" tort suits that would be shut down in a flash in other states. Here, the SJC was willing to look for evidence that other states' courts would eschew breezily. While I'm usually hesitant to see a court broadly construe a meticulous private contract, I'll here let myself be bettered by anxiety over academic freedom facing evisceration by the looming dismantling of faculty job security.

The plaintiffs in the Tufts case had been awarded tenure at different times, from 1970 to 2009. The SJC looked to the TUSM faculty handbook, which usually is construed as contractual in higher ed employment law. The handbook includes an academic, freedom, tenure, and retirement policy that incorporated language verbatim from the 1940 AAUP Statement on Principles of Academic Freedom and Tenure.

The 1940 statement speaks eloquently to the importance of "freedom of teaching and research and of extramural activities," as well as "a sufficient degree of economic security." All good. But the statement characteristically left "the precise terms and conditions" to ad hoc negotiation, as long as termination is permitted "only for adequate cause" and the result of some kind of review process. That's long left the tenured professor in an AAUP-style contract to wonder whether anything would stop the university from reducing salary to a penny and relocating the professor's office to the boiler room.

When Tufts presented a faculty hearing board with a multi-million operating deficit in the late 2010s, the board was more than willing to throw some faculty under the bus to save the rest. The union at my school did the same thing during the pandemic: eagerly approving faculty salary cuts, and even asking that they be higher, rather than calculating how many quarter-million-dollar-a-year assistant-associate-vice-provost-chancellors we might do without instead. 

Thus, another problem with tenure as we have it is that the AAUP, enraptured as it was and is with collectivism, never thought to consider the need to protect faculty from each other. Unlike the First Amendment, AAUP academic freedom allows the collective to run roughshod over dissenting voices.

With due process duly delivered, the Tufts plaintiffs saw salary reductions from 10 to 50%.

Taking stock of the matter, the SJC concluded, again, exceptionally, that "economic security is an important substantive provision of the tenure contract and not a prefatory or hortatory term." The court relied on the 1940 statement and strained in structuralist contract construction to distinguish a 2022 New York decision to the contrary. 

The record at Tufts probably does not support plaintiffs in resisting any salary reduction, but, the SJC concluded, at least created a question of fact as to how much is too much.

The case is Wortis v. Trustees of Tufts College (Mass. Mar. 14, 2024). Chief Justice Scott L. Kafker wrote the unanimous opinion.

Florida A&M moves to fire Latina law prof who spoke on public concern; Hispanic law students resist

You may review and sign on to a letter of the FAMU Hispanic American Law Student Association opposing Reyes's termination here. 

Prof. Maritza Reyes

My colleague Professor Maritza Reyes, who is tenured at the Florida A&M (FAMU) College of Law, is fighting alongside students and other allies to save her job and to preserve academic freedom.

Reyes has been notified of the school's intent to dismiss her for doing her job in faculty governance. Reyes commented, professionally and appropriately, in a community email discussion of the abrupt, contentious, and institutionally embarrassing resignation of the law dean at FAMU in February.

FAMU apparently did not like what Reyes had to say. In a plain violation of academic freedom, the school proferred the email discussion as the reason to terminate a tenured professor.

I have written many times, since 2011, about the failure of universities to recognize academic freedom in spaces "penumbral" to published research and classroom teaching, namely faculty governance. In the same vein, Professor Keith Whittington wrote recently about the importance of protecting "extramural" academic speech.

Reyes is an accomplished and highly respected law teacher—thus, just the sort who attract condemnation in the academic culture—who is treasured by generations of students and has especially made a difference for persons of color in law schools and legal practice. She is FAMU's first and only tenured Latina law professor. In 2022, she founded the Graciela Olivárez Latinas in the Legal Academy ("GO LILA") Workshop, which she discussed in 2023 for AALS Women in Legal Education.

Students and alumni are leading the resistance to Reyes's termination. Please review and consider signing on to the following letter.  You can share the letter further with this link: https://forms.gle/VUnYPKiMwyWtMDJx8, or via The Savory Tort.

(This post revised and updated on Mar. 19, at 5:40 p.m.)

---

Dear President Larry Robinson and Provost Allyson Watson:

We, the undersigned members of the Florida Agriculture and Mechanical University (FAMU) Hispanic American Law Student Association (HALSA), joined by fellow students, alumni, allies, and friends, respectfully request that you rescind your intent to dismiss College of Law Professor Maritza Reyes (Professor Reyes) from her tenured position. For the past fifteen (15) years, Professor Reyes has been a caring professor and has made excellent contributions to the school, especially its students. Professor Reyes has also served as HALSA's faculty advisor for many years.

Professor Reyes is an accomplished teacher, scholar, and member of the legal academy and community. She began her employment in the FAMU College of Law as a tenure-track assistant professor of law in 2009, earned tenure in 2015, and is now a tenured, full professor of law (the highest faculty rank). FAMU has evaluated Professor Reyes's record during many formal evaluative processes, including applications for promotion to associate professor, for tenure, and promotion to full professor; annual reviews; and, most recently, post-tenure review. Professor Reyes has demonstrated consistent excellence and productivity in scholarship, teaching, and service. She has too many accomplishments to list here, including being recognized in the U.S. Congressional Record for her service to our community. You are well-aware of her many accomplishments including through all of the above listed evaluations.

We were heartbroken and outraged to learn that Provost Allyson Watson (Provost Watson), by letter dated February 16, 2024 (the "Notice"), informed Professor Reyes of the University's intent to dismiss her from her tenured position. According to FAMU Regulation 10.120(2)(c), the "Contents of Notice" must include the following information: "A list of documents or written explanation on which the charges are based; and a statement that documents shall be available to the employee upon request." The documents Professor Reyes received consisted of emails that were sent to the entire College of Law Community during the period of February 1, 2024 to February 5, 2024. The entire College of Law Community (faculty, staff, and students) received the emails after then College of Law Dean Deidré Keller (Dean Keller) opened this email forum on February 1, 2024 to provide notice of her resignation effective immediately. Several professors, including Professor Reyes, and three students participated in these communications and sent emails to the entire College of Law Community. The use of email forums/listservs to the entire College of Law Community was not prohibited. Professor Reyes's emails were informative, professional, and timely. They helped bring transparency and accountability regarding Dean Keller's resignation, a matter of institutional and public importance. The Tallahassee Democrat initially reported about Dean Keller's resignation on February 2, 2024. Subsequently, Dean Keller provided her letter of resignation to this newspaper, which published it in a second article on February 6, 2024. These materials were readily available online via the newspaper's website.

In response to Professor Reyes's contributions via emails about Dean Keller's resignation, Provost Watson issued a Notice of intent to dismiss Professor Reyes from her tenured position. It seems to us that Provost Watson targeted Professor Reyes for the content of her speech and sought to silence her voice and future contributions in the FAMU College of Law. In a matter of days, Provost Watson charged Professor Reyes for dismissal without allowing her an opportunity to respond to a formal complaint, go through an investigation, receive meaningful due process, and get a report. To us as law students, the way Provost Watson has handled this situation screams of injustice and lack of due process.

Many students and alumni describe Professor Reyes as an exceptional educator who made a lasting and meaningful impact on their law school experiences and legal careers. She always set high standards and would provide the guidance and skills necessary to reach them. She also inspired students to achieve their individual levels of excellence. Some of us made it through difficult situations during law school thanks to her unwavering support. Professor Reyes has also been an advocate for student organizations. Therefore, if your intent to dismiss Professor Reyes comes to pass, you will harm past, current, and future FAMU College of Law students by taking away an excellent professor who has been our teacher, mentor, advocate, ally, supporter, and friend. You will also harm the law school, including with negative publicity. You have already disrupted the high-caliber teaching law students expected to receive when they registered for Professor Reyes's courses. You abruptly replaced her with less-credentialed and less-experienced instructors who had never taught in a law school before. Many of us will be further traumatized by Professor Reyes's dismissal. We cannot remain silent in the face of such injustice.

There are currently twenty (20) tenured professors (associate and full) in the College of Law. Professor Reyes was the first and thus far only Hispanic professor hired in the tenure track and subsequently tenured in the FAMU College of Law. She has served as HALSA's dedicated, supportive, and highly competent faculty advisor. According to the FAMU College of Law American Bar Association 2023 Standard 509 Required Disclosures, Hispanic students make up 25% of the total law student body. It is important that Hispanic students be appropriately represented in the law school. While this letter is spearheaded by HALSA's Board, we are being supported in our efforts by students and alumni of diverse backgrounds who appreciate and respect Professor Reyes's teaching, mentoring, and support.

There is a strong sense among the student body that an injustice is happening in view of all of us. On February 27, 2024, students met with FAMU College of Law Interim Dean Cecil Howard and protested the intended dismissal of Professor Reyes. Interim Dean Howard responded that the decision was made by Tallahassee Administrators to whom students should voice their protests. This is what we are doing via this open letter. We have distributed this letter widely for signatures by students, alumni, allies, friends, and supporters of justice everywhere. Please hear us when we tell you that the intended dismissal of Professor Reyes is a grave injustice. You have the power to stop this intended wrong. Please do so!

We respectfully demand that you keep Professor Maritza Reyes in the tenured faculty position she earned. She has done nothing warranting dismissal. We also demand that you grant Professor Reyes's request for a public meeting regarding her intended dismissal.

[Sign.]

Mass. attorney board rushes to racialize, shun 'overseer,' ignores word's ancient, biblical usages

A proposal published for public comment would change the name of the Massachusetts Board of Bar Overseers to the "Board of Bar Oversight" to avoid connotations of slavery in the term "overseer."

The new name means the "BBO" will keep its popular initialism. The BBO was formed in 1974, so the "overseer" usage originated independently of the negative connotation. It seems what's changed in the last half century is sensitivity to language, for better and for worse.

Frederick Douglass
and grandson Joseph Douglass, 1894
Smithsonian NMAAHC

The BBO stated its reasoning:

The word "overseer" has a pernicious history in our country, tied inextricably to chattel slavery. On southern plantations, an overseer was the slaveowner's delegate in day-to-day governance, trusted to enforce order and obedience. Overseers were the most visible representatives of white supremacy. As defined in the Online Etymology Dictionary, an overseer was "one who has charge, under the owner or manager, of the work done on a plantation." In autobiographies by slaves such as Frederick Douglas [sic] and Solomon Northup ("Twelve Years a Slave"), overseers were described as heartless, brutal and cruel. They were an inevitable and indispensable product of an economy built on human chattel. As noted by University of Louisville president Neeli Bendapudi, "The term overseer is a racialized term. It hearkens back to American slavery and reminds us of the brutality of the conditions and treatment of black people during this time." We agree with this statement.

I don't. To "racialize" is "to give a racial character to: to categorize, marginalize, or regard according to race." I agree that Bendapudi racialized the term. The BBO did not, before now. But therein lies the power of a passive structure, "is ... racialized," allowing one to accuse without responsibility to prove.

The BBO moreover is almost irresponsibly selective in its sourcing. First, the Online Etymology Dictionary is a project of a Pennsylvania writer, Douglas Harper. It's good and interesting to read; I'm not meaning to denigrate Harper's labor of love. But I'm not sure any one person's internet project should be anyone else's first stop for denotation, especially in a legal context. The BBO's sourcing is on par at best with high-school-term-paper standards.

Second, "one who has charge ... of the work done on a plantation" is not exactly what the Online Etymology Dictionary says. Rather, here's the entry in full:

late 14c., "supervisor, superintendent, one who looks over," agent noun from oversee (v.). Specifically, "one who superintends workmen;" especially with reference to slavery, "one who has charge, under the owner or manager, of the work done on a plantation."

So it's not true, even in the source referenced, that "overseer" on its face is defined as, or means, a plantation supervisor. The meaning arises in the especial context of slavery.

Maybe I'm a little sensitive to the whole thing because I once served as an "overseer" in my church. The BBO doesn't mention that the word has any meaning outside of slavery, much less that it has ancient and Biblical origins.

Episkopos (ἐπίσκοπος) in Ancient Greek translates literally as onlooker, or overseer, and that's the word used in the Iliad, the Odyssey, and the Bible. Epi (ἐπί) is a preposition meaning on or upon, and skopos (σκοπός) means to watch or look intently. Skopos is used variously (and in the Iliad) to refer to a lookout, a guardian, or a spy or scout.

In Ancient Greece, an episkopos referred specifically to a kind of imperial agent sent by Athens to distant municipalities to make sure they paid their taxes (Balcer 1977). (An interesting point of historical-comparative legal studies is that having a highly functional tax system is a common feature of successful ancient civilizations, from the Greeks to the Aztecs.) 

In the Iliad (22:255), A.T. Murray translation, Homer refers to the gods as witness to an agreement, using episkopoi (ἐπίσκοποι), the plural, to refer back to the gods. Murray beefed up the translation to say "witnesses and guardians of our covenant," thus articulating the added connotation of safeguarding.

In the Odyssey, also the Murray translation, below, Homer used episkopos more abstractly to indicate a role of authority:

τὸν δ᾽ αὖτ᾽ Εὐρύαλος ἀπαμείβετο νείκεσέ τ᾽ ἄντην:
‘οὐ γάρ σ᾽ οὐδέ, ξεῖνε, δαήμονι φωτὶ ἐίσκω
160ἄθλων, οἷά τε πολλὰ μετ᾽ ἀνθρώποισι πέλονται,
ἀλλὰ τῷ, ὅς θ᾽ ἅμα νηὶ πολυκλήιδι θαμίζων,
ἀρχὸς ναυτάων οἵ τε πρηκτῆρες ἔασιν,
φόρτου τε μνήμων καὶ ἐπίσκοπος ᾖσιν ὁδαίων
κερδέων θ᾽ ἁρπαλέων: οὐδ᾽ ἀθλητῆρι ἔοικας. 

Then again Euryalus made answer and taunted him to his face: "Nay verily, stranger, for I do not liken thee to a man that is skilled in contests, such as abound among men, but to one who, faring to and fro with his benched ship, is a captain of sailors who are merchantmen, one who is mindful of his freight, and has charge of a home-borne cargo, and the gains of his greed. Thou dost not look like an athlete."

In none of several English versions of this passage did I find episkopos translated directly. Poetically inclined translators such as Murray carried over the subject "captain" with either a pronoun or an implied subject. "Captain" here is "ἀρχὸς," or "chief." So it looks like Homer saw ἀρχὸς and ἐπίσκοπος as functionally equivalent in this context.

The New Testament accordingly uses episkopos several times to refer to church leaders. Indeed, "bishop" in English derives from the Greek episkopos—episcopus in Latin and obispo in Spanish.

Shepherd in 1 Peter 2:25
© Saint Mary's Press, licensed for non-commercial use

The First Epistle of Peter (2:25) (NIV) uses episkopos abstractly, as a metaphor for Jesus: "For 'you were like sheep going astray,' but now you have returned to the Shepherd and Overseer of your souls" ("ἦτε γὰρ ὡς πρόβατα πλανώμενα· ἀλλ᾽ ἐπεστράφητε νῦν ἐπὶ τὸν ποιμένα καὶ ἐπίσκοπον τῶν ψυχῶν ὑμῶν").  

Other usages are more concrete. In Acts 20:28 (NIV), Paul admonishes disciples: "Keep watch over yourselves and all the flock of which the Holy Spirit has made you overseers. Be shepherds of the church of God, which he bought with his own blood" ("προσέχετε οὖν ἑαυτοῖς καὶ παντὶ τῷ ποιμνίῳ ἐν ᾧ ὑμᾶς τὸ πνεῦμα τὸ ἅγιον ἔθετο ἐπισκόπους ποιμαίνειν τὴν ἐκκλησίαν τοῦ θεοῦ ἣν περιεποιήσατο διὰ τοῦ ἰδίου αἵματος"). Similar usages appear in Philippians 1:1, 1 Timothy 3:2, 1 Titus 1:7, and Hebrews 13:17.

The BBO needs to be called out here for shoddy work (really, misspelling Frederick Douglass?) and results-oriented reasoning. The board is myopically intent on sacrificing a word on the pyre of cancel culture—a move indicative more of wanting to look righteous than of wanting to be righteous. I might rather, as a general rule, strive for education and enlightenment, at least as a first-order response.

Yet, as it happens, I agree with the BBO's conclusion and proposal. Despite the board's woke pandering, the risk is significant that "overseer" will import for some hearers a connotation that should be foreign to the board's role. For me, it's not about "racialization"; it's about relationship. 

When I moved to New England and started to learn the ropes of the local legal culture, I bristled at the term "Bar Overseers." To be fair to Massachusetts, I have had the same feeling in other jurisdictions about boards of attorney and judicial "discipline." 

"Overseer" and boy in Yazoo City, Miss., yarn mill, 1911.
U.S. Library of Congress

I fear that these words connote a top-down style of austere supervision, a system of the powerful and the powerless, that does not comport with a profession of mutually supportive equals (dare I say, a brethren, which is and should be gender encompassing). "Overseer" is suggestive of a dramatic power imbalance; the word was used not only in connection with slavery and plantations, but in the context of child labor in the early 20th century.

That doesn't mean that the time never comes when persistent or willful misconduct requires a firm response; the profession owes its highest duty to the public. But using terms such as "overseer" and "discipline" has the unintended consequence of encouraging officeholders to misunderstand their roles. Lawyering and judging are among jobs that endow persons with authority over others, whether through power, like policing, or through access to knowledge. Some people attracted to these jobs are prone to use, or abuse, their power for its own sake. Those same people might gravitate to a job such as "overseer" or arbiter of "discipline" for the wrong reasons.

I was more amenable to the term "overseer" in my church, because the biblical usage is, or should be, utterly alien to abuse of power. Similarly, a church speaks of spiritual "discipline" with only the affirmative connotation of accountability to God. As a church overseer, I felt the weight of guardianship in the term. Being an overseer was a stern reminder of my responsibilities to others and sometimes, too often, of my own duties and failures of spiritual discipline. Anyone truly called to church leadership is humbled by the call, not lured by empowerment.

Even so, when my board of overseers overhauled the church constitution, we changed to "elder" leadership. At the same time, we changed the governance model. We studied and prayed over many church governance models. The Bible says remarkably little about specifics, so the art of church governance becomes part spiritual endeavor and part sociological experiment. We designed a variation on governance that we believed would work well for our congregation, better, at least, than what we had in an aging constitution. 

"Elder" aligned better with our new model, which emphasizes biblical knowledge, experience, and mentorship. There's nothing technically deficient in the term "overseer" for our new model, and we were not afraid of "racialization." It was just semantics. Different Christian writers have committed to different terms, so those terms now carry connotations of the writers' observations and recommendations.

So connotation, like context, matters. And given the connotation of barbarism that even sometimes attaches to "overseer," especially in secular contexts, the BBO's modest proposal is sensible.

I simply would prefer that the proposal were backed by an evenhanded and honest analysis. Then we might be able to say, more modestly, that we are just pushing pause on "overseer": giving its deplorable connotation time to fade in our social consciousness, rather than committing a word of ancient import to the dustbin because of a modern-era abomination.

Book supports legal privilege for undercover reporting

Truth and Transparency, a recent book by Professors Alan K. Chen and Justin Marceau, is a comprehensive and gratifying tour of the history and law of undercover reporting.

Chen and Marceau teach at the Sturm College of Law at Denver University and have especial expertise in constitutional law, and respectively in public interest law and animal law. In their co-authorship, they examine the social phenomenon of undercover reporting that lies at the intersection of journalism, tort law, and the First Amendment—and often animal law, too.

I know Chen best for his work in opposing ag gag laws: statutes designed to stop and punish journalists, activists, and whistleblowers from investigating and revealing wrongful conduct and animal cruelty in the agricultural industry, especially by way of undercover video recording. Chen has worked against ag gag in Idaho, Iowa, Kansas, and Utah. I've been privileged to sign on to some of the amicus briefs he has coordinated.

Chen and Marceau leave no stone unturned. I was intrigued especially to read about the history of undercover reporting in the United States, the evolution of undercover reporting in its treatment in journalism ethics, and the thorough explication of undercover reporting in tort and First Amendment law.

Upton Sinclair's 1905 The Jungle, a novel based on real-life undercover reporting in the meatpacking industry, was my mind's go-to on the early history of the practice. Apropos of the present Women's History Month, however, it was female reporters such as Nellie Bly who carved out a niche for undercover reporting in the popular imagination in the late 19th century and deserve the most credit for pioneering the genre.

Bly, born Elizabeth Jane Cochran, famously had herself committed to a deplorable New York mental institution in 1887 for 10 days before a New York World lawyer secured her release, per prearrangement. Chen and Marceau recount the stories of Bly and other so-called "girl stunt reporters." They trace the history even further, as well, to antebellum abolitionists determined to expose the horrors of slavery.

Chen and Marceau explore a range of treatments of undercover reporting in journalism ethics, including the qualified permissiveness of the 1996 Code of Ethics of the Society of Professional Journalists, preserved in the more recent 2014 iteration. They observe as well the almost complete prohibition on the practice at National Public Radio, where journalists may engage in deception only when necessary to protect themselves in a conflict zone, and secret recordings may be used in only extraordinary circumstances.

A case that naturally arises throughout the book is the ABC News investigation of hygienic practices at Food Lion in the 1990s (at Reporters Committee). This case was contemporary with my university study of journalism, so was front and center in my class on journalism ethics. Whether or when journalists might engage in deception to get the story is a favorite point of discussion in journalism ethics class. The problem stratifies the need for public trust in journalism across the micro layers of people who are the subjects of stories and the macro layers of readers and the public interest. 

A court in Food Lion ultimately held that ABC journalists could be sued for trespass or breach of loyalty, but awarded only nominal damages. The factual problem for the plaintiffs that precluded a more substantial damages award was that notwithstanding the concealment of their motives, the journalists had been given jobs at Food Lion, and they did their jobs. So from a damages perspective, Food Lion got what it paid for. The appellate court, unlike the trial jury, was unwilling to consider the reputational harm flowing from truthful disclosures, if deceptively obtained, as any kind of compensable loss.

The outcome in Food Lion was consistent with the broad propositions of First Amendment law that there is no right to gather the news, which is why the Freedom of Information Act is a statutory rule, not a constitutional one; and that journalists are not exempt from generally applicable expectations of law, such as honoring contracts, obeying police orders—and not trespassing. As Chen and Marceau observe, the outcome exerted a chill in investigative reporting.

However, the Food Lion rule is hardly absolute, Chen and Marceau also aptly observe. The rule of no-right-to-gather-news has never been wholly true. The courts have given media latitude to test the limits, for example disallowing wiretap liability for receiving probably illegally intercepted communications. And technological advances have complicated the picture. A majority of U.S. circuit courts now, in a post-George Floyd world, have held that the First Amendment protects video-recording police in public places. The proposition seems right, but it doesn't square with the news-gathering rule.

The outcome in Food Lion further hints at a deeper problem in tort law that Chen and Marceau explore: the problem of damages in cases of only notional harm. In contemporary doctrine, a trespass with no infliction of physical harm or loss might entitle a plaintiff to an equitable remedy of injunction, but no more than nominal damages in tort law, thus Food Lion. Though with no damages in the offing, there is no deterrence to deceptive trespass, a logic that likely explains the eventual waning of Food Lion's chilling effect. The problem bleeds into the contemporary debate over the nature of damages in personal privacy violations. 

Journalism exceptionalism resonates as well in the problem of trespass and consent. Food Lion suggests that consent to enter property is vitiated by deception as to one's motive. Chen and Marceau explore opposing academic and judicial views on the question.

In a remarkable work of empirical research unto itself, Chen and Marceau's chapter 6 presents compelling data to show overwhelming public support for undercover reporting to expose wrongdoing. Public support seems to transcend political ideology and even whether the perpetrator of deception is a journalist or activist.

Chen and Marceau argue summatively and persuasively for a qualified legal privilege to protect journalistic deception in undercover reporting. Historical, ethical, and legal authorities all point in the same direction. Even the Fourth Circuit in Food Lion hedged its bets, observing that generally applicable employment law as applied in the case had only an "incidental effect" on news-gathering; in other words, news-gathering was outweighed as a consideration, not shut out.

Technological advances and citizen journalism will continue to generate conflict among conventional norms of property and fair dealing, evolving norms of privacy, and public interest in accountability in private and public sectors. Truth and Transparency is an essential manual to navigate in this brave new world.

U.S. District Judge Ann Aiken holds her own

U.S. District Judge Ann Aiken
Public domain via Wikimedia Commons

Today, March 10, is the International Day of Women Judges, and I want to nominate for recognition U.S. Senior District Judge Ann Aiken.

Judge Aiken is the trial judge in the best known American youth climate suit, Juliana v. United States (in Climate Change Litigation Database). She's been a dog with a bone in Juliana, refusing to give short shrift to the complainants despite immense pressure by Obama, Trump, and Biden administrations, and despite increasingly anguished glares of disapproval over the rims of reading glasses at the Ninth Circuit.

Judge Aiken's 2016 district court opinion in Juliana, however many times it's pummeled on appeal, is masterful (which is to take nothing away from the groundwork expertly laid by Magistrate Judge Thomas M. Coffin). Judge Aiken makes the case for climate change litigation upon the seemingly inarguable proposition that the constitutional right to "life, liberty, or property" rather implies a breathable atmosphere as prerequisite.

The wrinkle in Aiken's analysis is the implication of the courts in the policy business of the political branches. That's why Aiken drives everyone from her appellate overseers to American presidents to handwringing paroxysm. But that's what we should want: If judges are to "throw up their hands" and do nothing to avert the extinction of human life, as Ninth Circuit Judge Josephine Staton accused her colleagues on appeal in Juliana in 2020, we should want to be sure that the very best arguments have been tested.

Judge Aiken was appointed to the federal bench by President Bill Clinton in 1998. She previously practiced law in Oregon and served as a state judge. Her willingness to be bold when the situation demands came to national attention in 2007 when she ruled that parts of the USA PATRIOT Act violated the Fourth Amendment for authorizing warrantless surveillance. Also boldly, Aiken has five children.

I've edited Juliana 2016 for the forthcoming chapter 17, on government liability, of my Tortz volume 2, out in revised edition later this year, 2024. That edit emphasizes the tort and civil rights aspects of the opinion. I have prepared a different edit, if any teacher desires, emphasizing points of constitutional law for my Comparative Law class in fall 2024 and a forthcoming curriculum on global law being organized under the auspices of European Legal Practice Integrated Studies, an Erasmus program.