Niagara conference on workplace mobbing examines failure of academic freedom to prevent abuse

NCWM participants at Niagara University in July
© used with permission

With colleagues from around the world, I participated, as chair of the scientific committee, in the inaugural Niagara Conference on Workplace Mobbing (NCWM) on July 22-24, 2024, at Niagara University in New York (Savory Tort, Feb. 27, 2024).

Videos from the conference are now posted on a new NCWM YouTube channel and NCWM 2024 playlist.

Here is my introduction to the program, moderating the opening session.

For reasons investigated in the literature, academic workplaces are especially prone to mobbing. Here is my own presentation on academic freedom relative to workplace mobbing.

Here is another contribution to the academic freedom panel from my friend and colleague, Prof. Robert Ashford, Syracuse Law (pictured).

And here is the panel Q&A with Prof. Frances Widdowson (Woke Academy), Prof. Ashford, and me.

I will feature more programs from the conference in subsequent posts.

Enríquez disputes impact of marijuana offenses on federal sentencing since legalization in Missouri

The extraordinary scientist-lawyer Paul Enríquez argued an intriguing problem on the effect of legalization on federal sentencing in the Eighth Circuit Friday.

I wrote in 2021 about Rewriting Nature (Cambridge U. Press 2021), the remarkable book by Enríquez, J.D., LL.M., Ph.D. (LinkedIn, SSRN), on the law and science of genome editing. On Friday, Enríquez showed that he has the chops in the courtroom, too. Court Listener has the oral argument.

Enríquez's brief states the straightforward problem:

Mr. Brandon Phillips pleaded guilty to a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 10 years' imprisonment and three years of supervised release based on his criminal history. An amendment to the Missouri Constitution, which was in effect at the time of sentencing, legalized the use of limited amounts of marijuana and mandated the retroactive expungement of most prior marijuana-related convictions in Missouri. The district court failed to consider the effects of the Missouri Constitution on Mr. Phillips's case.

Missourian approved legalization 53%-47%.
Wikipedia CC BY-SA 4.0

As Enríquez told the court, Phillips would have fared much better in sentencing on the firearm violation, perhaps a third as many years, in prison, had he been credited with expungement pursuant to the Missouri constitution as amended in 2022. Ripe for someone to grab for moot court, the case also presents a procedural dispute over preservation of objection.

To my mind, Enríquez has the better argument on the merits and made the better argument in the courtroom, forensically. (I don't say that because he's a friend, colleague, and long-ago student, but I do mention that he's a former student in the hope that some of his shine will rub off.) To my mind, this seems the sort of case where the just outcome is obvious, even if legal formalism points the other way. Doing the right thing upon such a dichotomy is why we pay judges the big bucks and why we won't, I hope, commit justice to AI anytime soon.

What the court will do, though, remains to be seen. Getting hung up on formalism is a signature move for the federal bench. To my estimation, the judges' questions point to a split with the deciding third vote as yet inscrutable.

The case is United States v. Phillips, No. 23-2678 (8th Cir. oral argument Sept. 27, 2024) (Justia). Enríquez practices with Convington.

Remembering peaceful times in Tyre

I'm saddened by the expansion of the war in the Middle East into Lebanon upon yesterday's attacks by Israel on Hezbollah. To be clear, I'm not (here and now) meaning to make a political statement nor favor a side. Rather, I am remembering time I spent in the south of Lebanon and praying for the safety of civilians I met there. In contrast with the latest images from Tyre (Reuters), I took this photo of kids playing at the Tyre Coast Nature Reserve in May of 2018. I wonder where these boys are now, as thousands flee the south of Lebanon for Beirut and points north. Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.

IP, business stories of Tupperware bankruptcy minimize female marketing pioneer, dangers of plastics

Brownie Wise on Business Week in 1954
via America Comes Alive; © fair use

The Tupperware bankruptcy has been much in the news, though the coverage has underplayed "the rest of the story" in regard to women in business and product liability.

Headlines about the bankruptcy of Tupperware suggest various takeaways for business and law. Most stories highlight the inevitable expiry of novelty in business, with the corollary imperative to innovate (Atlantic, Sept. 20). Legal angles complement coverage with intellectual property lessons on the limited life of patents (Slate) and the problem of genericization in trademark (N.Y. Times). The history and nostalgia of Tupperware is a consistent theme (Atlantic, Apr. 12).

Less often told is the story of women in business. The CBS Evening News Saturday night credited Tupperware founder Earl Tupper with having come up with the Tupperware party as a sales strategy. That's not accurate, except in a "buck stops here" sense. The role of the remarkable Brownie Wise is less often told (mentioned: Atlantic, N.Y. Times). Rachel's Vintage & Retro has the more nuanced inside story. The National Women's History Museum and Smithsonian have more. Wise, from Buford, Georgia, graced the cover of Business Week in 1954 (pictured, via America Comes Alive). PBS recounted:

While Earl Tupper hated the limelight, Brownie Wise loved it. With Tupper's blessing, the company's public relations staff promoted Wise extensively. Female executives were rare, and the strategy worked. As the company grew, Wise was on talk shows, quoted by newspapers, and pictured on the cover of numerous magazines (she was the first woman to make the cover of Business Week). But when the press suggested Wise was responsible for Tupperware's success, and that she could be equally successful selling any product, Earl Tupper grew jealous. Over time, Wise became increasingly high-handed, and she was less patient with Tupper's micro-management and unpredictable temper. In 1958, Earl Tupper unceremoniously and abruptly fired her, booting her from the multi-million dollar company she had helped build; she held no company stock and was given just one year's salary.

Journalist Bob Kealing published a book about Wise if you want to go all in. Life of the Party (2016) followed up Kealing's Tupperware, Unsealed (2008). The Takeaway at WNYC interviewed Kealing in 2016.

With regard to women in business, by the way, CBS Sunday Morning just featured GM CEO Mary Barra, who appears to be going strong in the role ten years on. I remember when Jon Stewart on The Daily Show made fun of GM's ham-fisted introduction of a first female CEO ("a car gal, an auto dame, a jalopy broad"). It seemed that Barra was practically set up to fail amid GM's embarrassing ignition-switch recall.

Phillip Pessar via Flickr CC BY 2.0

Further in the vein of product liability, another angle on Tupperware that gets little play lies at the intersection of tort law and environmental protection. Stories of Tupperware tend to hail Tupper's inventiveness in converting DuPont's wartime development of polyethylene to post-war market ubiquity. But in the last decade, revelations of risky chemical seepage from microwaved containers did untold damage to a business built on plastic food storage.

BPA is just one chemical contaminant from plastics. Its use in manufactured products has spawned EU regulation and American litigation over baby bottles and activewear, as well as consumer protection litigation over "BPA-free" green-washing. Tupperware stopped using BPA in 2010 and developed a purportedly microwave-safe line of products under the brand name "Tupperwave" (not to be confused with Australian musician Dean Terry). But the safety of any plastic in the microwave remains uncertain. And microwave ovens notwithstanding, there's plenty of justified public concern over microplastic waste in the environment, animals, and people. 

So maybe Tupperware was always destined for only finite fame. Or maybe it will reinvent itself like Teflon, another DuPont invention that seems likely to survive an accountability assault.

Possibility that 'Titan' victims died instantly works curious disadvantage in tort claims over disaster

Still image of Titan wreckage from USCG video (below).

Hearings over the Titan submersible disaster point to the problem of compensation for instant death in tort law.

As The New York Times reported yesterday (subscription), a U.S. Coast Guard (USCG) inquiry into the underwater implosion of the Titan submersible (60 Minutes Austl.) has raised doubts over whether the five persons who died on the voyage knew they were in trouble. The family of one crew member filed a $50 million lawsuit against the sub manufacturer in August (N.Y. Times).

Titan was capable of dropping all of its weights to surface rapidly in an emergency. It was known before the present inquiry that Titan had dropped weights before the implosion, and experts read that as a sign that the crew knew they were in trouble. The inquiry so far has revealed, though, that Titan might have dropped only some weights as part of its routine surfacing procedure, and that communications with the surface suggested no cognizance of the impending disaster.

The rapid compression resulting from compromise of the Titan's hull at a depth of 3,346 meters (10,978 feet) would have raised the temperature in the sub so quickly as to incinerate the interior in a split second. So if the crew did know there was trouble, they did not know for long.

 Remotely-operated-vehicle video of Titan tail cone on seafloor (USCG).

Besides the natural desire of victims' families to understand what their loved ones experienced in their last moments of consciousness, the question of conscious awareness of impending death points to a curious problem of damages doctrine in tort law.

In its long history, Anglo-American common law has struggled with the problem of compensation in event of accidental death. The conventional approach to calculate damages in tort law asks what it would take to restore a plaintiff to status quo ante, as if the accident had not occurred. When a loss is non-economic, such as physical injury or emotional distress, the loss is nonetheless quantified as financial compensation.

The problem in a death case, besides the obvious difficulty of quantifying life itself, is that there is no plaintiff to compensate. The person who experiences loss of life can in no sense be made to feel restored; she or he can derive no satisfaction from a financial award, nor even spend it. So what is the social utility in transferring wealth from a responsible defendant to a non-corporeal estate?

Tort law does mean to accomplish more than mere compensation. Tort awards set norms for socially acceptable conduct, deter others from misconduct, and keep the peace by cooling the vengeful desires of a victim's kin. So the law of accidental death came around in the 19th and 20th centuries to compensate surviving family for at least some of the losses that they suffer upon the death of a loved one; and also to compensate a decedent's estate for what the decedent suffered while alive.

That latter measure incorporates a serious limitation: the decedent's suffering necessarily ended at the time of death. Compensation of an estate thus poses a peculiar problem in a narrow class of cases. Should the estate receive anything at all when a person dies instantly? If so, what is the measure of suffering?

In modern times, airline disasters especially added another twist to the problem. One could imagine that airplane passengers sometimes are conscious of an impending crash. They therefore suffer emotionally. But they suffer before the crash. American law on negligence and strict liability compensates emotional distress only when it is a consequence of physical injury. The doomed airline passengers experienced physical injury and death simultaneously; there was no consequential emotional distress. So there is, again, no basis on which a tort award can be measured out.

Is there really, though, a legally significant difference between, on the one hand, suffering for moments after impact and before death, and, on the other hand, suffering for moments before impact and before death? Personally, I'd like to avoid both. And the toll on kin, the revelation of a loved one's suffering for moments in anticipation of death, seems about the same whether before or after impact.

Accordingly, many courts faced with such cases have been willing to suspend the usual rule of causation and award an estate damages for "pre-impact fear," if only in this narrow class of cases when it could be proved, at least by circumstantial evidence, that the decedent suffered emotional trauma upon an awareness of impending death.

The solution creates collateral problems, namely: in evidence, as to how one proves the pre-impact state of mind of a person who perished; and in torts, in the valuation of damages, for fear that jurors might let the fact of physical fatality improperly amplify their assessment of only momentary and purely emotional suffering. These problems are surmountable, if one decides they should be, through adversarial process, careful jury instructions, and court supervision.

American jurisdictions remain reluctant, though, to compensate for life itself. So damages awarded to wrongful death complainants, the kin of decedents, still are measured according to their losses, such as financial support and loss of companionship. However remunerative, that approach can leave victims' families feeling like the lives of their loved ones were undervalued by the legal system, and the loss of life was insufficiently impressed upon the defendant. After all, if there were no kin, there would be no liability.

An award for pre-impact fear usually is small, because of the short time frame in which the harm occurs. But the award can be important symbolically to victims' families, because, in the absence of compensation for life itself, the modest award for pre-impact fear at least recognizes suffering in the decedent's confrontation with mortality.

In the Titan case, then, a revelation of instant death might bear a bittersweet edge for families. Certainly, they would like to know that their loved ones did not suffer at all and had no cognizance of their fate aboard the sub. At the same time, a revelation of instant death will mean that the victims bore no compensable suffering, even pre-impact. In tandem with a failure to compensate for life itself, victims' families might well conclude that the legal system failed to recognize the fullness of their loss.

There are, by the way, better ways to handle wrongful death. The gold standard for my money was articulated by my friend and former colleague Andrew McClurg in his Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U. L. Rev. 1 (2005).

Spoliation risk shows ill wisdom of state awarding contract to defendant in lawsuit over same project

The eastbound span of the Washington Bridge remains functional.
Jef Nickerson via Flickr CC BY-SA 2.0

The state of Rhode Island has found itself in an awkward spot trying to prevent the spoliation of evidence in civil litigation.

In my recent screed against, inter alia, corruption in contracting, I mentioned that Rhode Island had awarded the nearly $50 million contract for a major bridge demolition to a company that also is among the 13 defendants Rhode Island has sued for failing to diagnose the defective bridge in the first place.

I suggested, and maintain, that the state's simultaneously friendly and adversarial relationship with Aetna Bridge Co. is symptomatic of problematically cozy ties between government and contractors. These relationships cost taxpayers in Rhode Island and elsewhere tens of millions of dollars in overpriced projects, I believe, effecting a form of what I call "lawful corruption."

In a schadenfreude-inducing twist in the case, demolition of the I-195 Washington Bridge in Providence was halted this week for fear that evidence in the state's civil suit would be lost. "[R.I. Attorney General (AG) Peter] Neronha told WPRO radio he had spent two days working to safeguard bridge evidence from the wrecking ball and jackhammer," The Providence Journal reported Tuesday (subscription).

Spoliation of evidence occurs in a civil action or potential civil action when (1) an actor has a legal or contractual duty to preserve evidence relative to the civil action; (2) the spoliation defendant negligently or intentionally fails to preserve evidence in accordance with the duty; (3) absence of the evidence significantly impairs the complaining party's ability to prove the civil action; and (4) the complaining party accordingly suffers damages for inability to prove the civil action (1 Tortz 335 (2024 ed.)). Though a wrongful act, most states, including Rhode Island to date, regard spoliation as a doctrine of evidence, subject to procedural remediation within the four corners of a case, rather than a separate liability theory in tort law.

The instant case puts Aetna Bridge Co. and its partners in the bizarre position of being contractually bound to destroy parts of the Washington Bridge and to dispose of the debris in accordance with state law, while also being vulnerable to state accusations of spoliation if contract performance results in the destruction of evidence. The contradiction is yet more reason that the contract award was improper.

I'm doubtful that the state on its own even realized the problem. It was Wednesday last week that the Journal asked the AG's office whether parts of the bridge would remain available as evidence in the litigation. An AG spokesman had no "comment on ongoing litigation" on Thursday, and demolition stopped abruptly this week on Tuesday, after what Neronha described as "two days" of efforts.

Remembering Professor Frances S. Fendler

Congregation B'nai Israel
Sunday, Sept. 15, 2024, RJ Peltz-Steele CC BY-NC-SA 4.0

At Congregation B'nai Israel in Little Rock, Arkansas, on Sunday, I joined in the celebration of the life of Professor Emerita Frances Shane Fendler.

A native of Blytheville, Arkansas, Frances was a faculty member at the law school at the University of Arkansas at Little Rock, and also an alumna of the school, '82. Always an intellectual, she wrote the top paper on the July 1982 Arkansas bar exam. She clerked for the late Eighth Circuit Judge Richard Arnold and then litigated for (now) WilmerHale in Washington, D.C.

In 1986, Frances joined the faculty at Little Rock, where she taught courses such as business organizations, sales, and contract drafting for more than 30 years. She authored or co-authored articles and books, including a business organizations casebook and the Arkansas practice manual, Private Placements and Limited Offerings of Securities (2010). She served as a member of the bar, twice chairing the state association section on securities law, and she occasionally served as an arbitrator for the Financial Industry Regulatory Authority.

Most importantly, of course, Frances was a dear friend. When I struggled with the academic politics at Little Rock, she was steadfastly personally supportive, even if she did not have the bureaucratic sway to redress the situation. I did my best to be supportive, in turn, of Frances, when she battled breast cancer in the 20-aughts. I say this more because she often thanked me for it than because I deserve any credit; my recollection is rather frustration at my helplessness to do anything for her at that time. Upon her own remarkable strength, she prevailed in that first fight with cancer.

China Doll
Photo © RJ Peltz-Steele

Frances was a passionate dog lover. She was the first guest to visit my first dog, Rocky, when he came home to me, a puppy, in 2001. At the time, she had her precious China Doll, also an Australian shepherd. Frances remained always a trusted adviser on training and caring for Rocky over his nearly 18 years, right to the painful decision to end his life. My wife and I were plan B if a home in Arkansas could not have been found for Frances's beloved Honey Bear. When I visited Frances at her home in Arkansas one last time in October 2023, she gave me her cherished ceramic Aussie, a remembrance of China. The statuette, literally a "china doll," now stands guard over the ashes of my Rocky.

When we were together in 2023, we talked of all things big and small while organizing the papers of her father, the renowned Arkansas attorney Oscar Fendler. Most of Oscar's papers already resided at the archives of the library at the University of Arkansas at Fayetteville (UAF). But Frances had held back some of the more personal items, such as photographs and handwritten notes. She entrusted me with one treasure in particular: Oscar's unpublished memoir. With the help of research assistants, I am in the process of editing the book for publication, in accordance with Frances's wishes.

Many people helped to organize Frances's affairs in the last weeks. I express my especial gratitude to Linda, who took in Honey Bear; to Susan, who, with help from Melissa and Jessie, saw to the final dispatches to UAF; and to Tom and Suzy, who visited Frances often.

When Frances was young, from ages 19 to 21, she lived and was treated for depression at the Austin Riggs Center, a residential facility in Stockbridge, Massachusetts. She long kept that part of her life a secret, she explained to me in 2023, because of the stigma attached to mental illness. But in recent years, and especially contemplating her own end of life, she recognized that there need be no stigma. She had no shame in it, she told me; in fact, she said, those years, when at last she learned how to manage the darkness that had dogged her, and she made friends who understood, were the best two years of her life. She wanted people to know about her experience in the hope of inspiring others who struggle with depression to seek treatment.

Soon after her retirement from teaching, Frances was diagnosed with ovarian cancer. Having gone ten rounds with cancer before, and not having been given a hopeful prognosis, she chose to eschew treatment in favor of home hospice. Some weeks ago, the pain management in Arkansas became ineffective, and Frances relocated to Celia's House Hospice in Medford, Oregon. She was blissfully happy at the beautiful property when I spoke with her by telephone the week before she died. When the cancer reasserted itself, she declared, "Give me the pills," as she told me she would. At age 70, she availed of medical aid in dying (MAID) under Oregon's Death With Dignity Act. As her eulogizer put it Sunday, Frances lived and died on her own terms.

My life is richer for Frances Fendler having been in it.

Pentagon still stands, healed of 9-11 wounds

Leaving Reagan National Airport (DCA) yesterday, clear skies afforded a view of the Pentagon, which a comment on NPR this evening reminded me is the only building struck on September 11 and still standing. Living in Little Rock, Arkansas, in 2001, I remember many of us who had occasional business in the nation's capital thought that DCA surely would have to close. A shame, we thought, given its convenient proximity to district destinations. No doubt a result of hard work by federal officials, along with some blessings and some luck, DCA operates still. And that, business as usual, seems to me, is the best evidence of a society prevailing over terrorism. Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.

To contradict consistent record of impotence, DOT opens needed inquiry into airline miles programs

Washington, D.C.—The U.S. Transportation Department (DOT) last week opened an investigation of airline frequent-flier programs, and it's about time.

The old adage about wheels of justice turning slowly usually well describes the antitrust activities of the Justice Department (DOJ) and Federal Trade Commission (FTC). Only in recent years has the government begun to awaken to the rampant price-fixing in our economy that consumers have been accustomed to for decades. Runaway inflation shed light on how little choice Americans have in grocery stores, probably prompting FTC qualms over the Kroger-Albertson merger. Sky-high rents and a housing shortage similarly have prompted DOJ attention to rent-fixing.

Now it seems the emphasis is on the wheels part of the old adage, as DOT takes a belated interest in the airlines. Absurdly high prices, especially in domestic travel, probably stirred the agency giant. The Biden Administration and Buttigieg DOT have largely failed to deliver on infrastructure promises. So it's pleasing to see a glimmer of concern for consumer welfare vis-à-vis ever more profitable providers.

A window view sometimes makes flying a tiny bit less miserable.
RJ Peltz-Steele CC BY-NC-SA 4.0

Misery in the Air

As to domestic air travel, I remember President Obama saying the economy's great, but workers might have to move for jobs. Meanwhile we're encouraged to have multi-generational households to care for our elderly, and the great economy compels college grads to move back in with their parents. Is the whole family supposed to move to the same place at the same time? Air travel is a necessity for families in the vast geography of our national labor market, yet we continue to allow our oversized airlines, themselves products of mergers that should not have been allowed, to operate as if they're concierges of bespoke services.

Bespoke is ever less the consumer experience, even as prices soar. Six of my last six domestic flights, all on American Airlines, were hours late. I would be due a huge compensation check were I in the EU. From American Airlines? Nothing. To the contrary, I had to foot the bill out of pocket for transfers and overnights in pricey cities such as Chicago and D.C., else sleep in the airport. The Buttigieg DOT and Congress keep making noise about passenger compensation. But noise, to appease the electorate, is all it's amounted to. Don't even get me started on sticky trays, filthy seats, and cramped spaces on packed planes.

We All Fall Down

As to infrastructure promises, if you're thinking, "well, the Republican Congress": Save it. I don't want to hear it. The whole thing about Joe was his ability to reach across the aisle. And I didn't vote for either one of them, so if ever you tire of see-sawing between obstructionist opponents as an excuse for getting nothing done, stop voting for the only thing you're offered and come talk to me about how we dismantle the two-party system. Consumer choice indeed.

Yes, there was the infrastructure bill. Biden deserves credit for that, and I appreciate it. But even the Biden Administration knew that that would not even bring us level with our maintenance needs, much less make systemic investments.

Use of the infrastructure money, such as it is, raises serious doubts about the government's fiscal responsibility. My home state of Rhode Island is using federal infrastructure money to rebuild rotted wooden bike-path bridges that I use, so I'm selfishly pleased. But it wasn't the purpose of the bill to restore recreational paths for which the states should have planned anyway. Rhode Island failed to fund replacement for the decades when the bridges' inevitable expiry was well known; consequently, the bridges have been subject to dangerous detours for years since the failure. And the bridges are hardly vital infrastructure; the few people who actually commute on them are stymied by uncleared snow in the winter and an abrupt end to dedicated lanes at the ends.

I have doubts too about even the more clearly legitimate uses of the money. DOT and Amtrak plan to build out vital northeastern rail service westward in Massachusetts, a welcome initiative. But the trains will not be any better than the embarrassingly slow service we have in our rail system now; driving will still be preferable for speed and reliability. I remember "Amtrak Joe" saying something about high-speed trains, you know, like in the developed world. The best the administration seems to have managed is to ask Japan for help with high-speed rail. I guess we don't have the technology.

Round and Round

Topping it all off, there's the corruption that the government seems unable to get a handle on. Or as we call it in America, contracting. Rhode Island got caught with its pants down last year when the key Washington Bridge alongside the I-95 corridor in Providence was found to be fatally defective and was suddenly closed. A "junior engineer" spied the rusty deficiency, media reported, or as I like to say, a "former junior engineer" who didn't get the memo. Because the odds are nil that inspection contractors, who enjoy a revolving door with state government offices, somehow failed to notice the problem for years.

The bridge has to be torn down and replaced, and costs are spiraling. When the state bid the demolition project, intense media and public scrutiny compelled a realistic cost estimate of $31 million. But contractors don't emerge from their pools of money for realistic. The state ultimately awarded the work for close to $50 million. But wait, there's more. The company that was awarded the demolition contract is also a defendant in the state lawsuit over the defective bridge. You can't make this stuff up.

The overall estimate, no doubt too low, for the Washington Bridge replacement is about a half billion dollars, and we should pause a moment on that number. It can be difficult to assess the legitimacy of these big numbers, as the average consumer has little frame of reference to differentiate a million from a billion. For some reason I play the lottery only when the jackpot hits a half billion, as if I would not be content with a tenth as much.

The Massachusetts Bay Transit Authority (MBTA) recently estimated that it would take $24 billion to make the Boston T work the way it's supposed to. That's not to improve the system; that's just to bring it up to serviceable: timely trains, functional stations. The T is infamously unreliable and plagued by maintenance issues. Yes, it is an old system, but that doesn't fully explain the problems. An extension of the green line opened in 2022, for example, and saw such problems with defective tracks that trains had to be slowed to less than walking speed.

Chair: Wait, I see a hand. Rhode Island, you have an idea?

Rhode Island: Yes, Mr. Chair. We propose that the MBTA hire the contractor that built the green-line extension also to remove and replace it.

Chair: Thank you, Rhode Island.

Rhode Island (to camera): Baltimore, 🤙 <<call me>>.

In contrast, the city of Brisbane, Australia, is rebuilding its metro system, including a new fleet of electric vehicles and excavation of a new tunnel, for a price tag of only $1.4 billion. That's Australian dollars; it's about US$930 million. Brisbane's metro is a smaller system than Boston's, yet I can't help but think that the T couldn't mop up the urine in the system for a billion dollars.

I might not know millions from billions, but I know that 1 for new is a better buy than 24 for old. It's hard not to conclude that something is amiss in accountability for infrastructure spending. If only there were, I don't know, experts, or something, who don't work for contractors. Maybe they could work in the government, for the public.

Miles To Go

Well the good thing about antitrust enforcement is that it requires lawyers, but no new construction. Maybe the Buttigieg DOT has found its knack.

The ways in which airlines have innovated consumer exploitation in frequent-flier programs are sufficiently many to constitute a course in business school. Well, bad-business school. Violations of antitrust law are so painfully obvious that it's hard to believe we have antitrust enforcement at all.

The legal status of frequent-flier miles has evolved since the programs were conceived circa 1979. They started as little different from tenth-sandwich-free punch-card programs. It was the funny kicker on the news when they were first contested as property in legal contexts such as divorce. That's not an unprecedented evolution, by the way. Divorce has a way of showing us what's valuable to people. Dogs and cats are transitioning from mere chattel to intangible value in tort law by way of divorce court.

Notwithstanding limited legal exceptions, courts tended nonetheless to regard the airline mile as a purely contractual creature. Airlines urged that construction and delighted in it. The miles are thus controlled by terms of service, to which consumers bind themselves usually with neither meaningful choice nor actual knowledge. Per the law of boilerplate in the information age, the airlines reserve the right to change the terms more or less unilaterally. That's why the airlines can and do devalue miles routinely and add new redemption restrictions, such as blackout dates and transfer limits.

Corporations' concerted efforts to construct self-serving legal doctrine has not stopped miles from becoming "a virtual currency." The government has long tolerated this dichotomy of law and reality. And things might have continued swimmingly for the airlines had they not succumbed to greed, the Achilles heel of the American corporate ethos. Once the airlines understood that miles and money were interchangeable, they started making them, literally, interchangeable. Today a consumer can earn miles per dollar on credit cards, transfer cash-back rewards to mileage programs, and simply buy miles.

Devastatingly to the airlines' antitrust position, they doubled down on co-branded credit cards. Those agreements are a specific target of the DOT investigation. I have an American Airlines card and a United card; I've had Southwest and Delta cards in the past and probably will again. My cards get me earlier boarding and other perks. Most importantly, they (thankfully excepting Southwest) "save me" baggage-check fees. The annual fee on each card is $99; it costs $80 to check a bag roundtrip.

I put "save me" in quote marks because, remember, there didn't use to be baggage fees. Co-branded credit cards date to the 1980s, but they really took off, no pun intended, in the 20-aughts. Baggage fees were introduced in 2008. Coincidence much? Consumers have been coerced into having the credit cards; it would be economically irrational not to. Of course, paying the airfare with the card earns more miles. The cycle continues.

Ganesh Sitaraman aptly reported in The Atlantic last year, as the headlines put it, "Airlines are just banks now: They make more money from mileage programs than from flying planes—and it shows." 

But airlines are not regulated as banks.

And that's why federal scrutiny is long overdue.

Scribd has the DOT Template Letter on the Airline Rewards Inquiry, issued to the four largest carriers, American, Delta, United, and Southwest. HT @ TPG.

In 'Baywatch' case, court ponders discovery rule for models' tort claims over ads posted on Facebook

Models suing an adult entertainment club occasioned the high court of Massachusetts to ponder the problem of social media and the statute of limitations on media torts in a decision Wednesday.

When I heard that the Massachusetts Supreme Judicial Court decided a case about Baywatch, I knew I would want to blog about it.

Alas, I was misled. "Bay Watch" in the instant matter has nothing to do with the The Hoff or 1990s TV.

Plaintiffs allege this ad depicts model Paola Cañas.
From Compl. ex. D.

Still, it's an interesting case. Bay Watch, Inc., is the owner of an adult entertainment club in Stoughton, Massachusetts, Club Alex's. In a lawsuit filed in federal district court in June 2021, six globally recognized models alleged that Club Alex's posted their images, some of them in scant swimwear, to Facebook to promote the club, even though none of the models had any association with the club. The models alleged trademark infringement, misappropriation ("right of publicity"), defamation, and conversion.

The issue in the trial court was the statute of limitations for the state tort claims. Sitting on the generous end of the spectrum, Massachusetts allows three years for media tort claims. But the ads the plaintiffs complained about appeared from 2013 to 2015. The district court accordingly granted summary judgment on the tort claims to the defendant in 2023. But on a plaintiff motion to reconsider at the end of the year, the court agreed to certify the limitations question to the Massachusetts Supreme Judicial Court (SJC).

Alas, not that one (IMDb).

The plaintiffs in the trial court had tried to avail of "the discovery rule," a common law rule that tolls the statute of limitations when it would work an unfairness on a plaintiff who is reasonably not cognizant that she suffered an injury for which there might be a legally responsible actor. 

The discovery rule gets a lot of play in toxic tort cases, in which illness alleged to have resulted from exposure to toxic substances might take years to manifest, and the risk of exposure might not even have been known to the victim at the time. Buttressing his decision with gender-equity-oriented social science, the late Judge Jack Weinstein famously used the discovery rule in the 1990s to give reprieve to plaintiffs suing the makers of DES, a once widely prescribed synthetic estrogen replacement that turned out to be dangerously carcinogenic.

The discovery rule is appealing as a matter of fairness, but applying it can introduce a thorny question of fact. And there are many more thorns when the rule is invoked in a case without the clear delimiters of physical injury.

It's often said, as a default matter, that the limitations period for media torts, such as defamation, runs from the time of publication. Usually that rule works well enough. But in some cases, plaintiffs are able to invoke the discovery rule. If cases are any indication, then defamation occurs in the disruption of business relationships more often than in the pop culture paradigm of media subject versus publisher. A businessperson, for example, might think she lost a contract on the merits of a bid and only later discover that she lost the contract upon the whisper of a false and harmful rumor into the right ear.

Proliferation of media in the internet age has made courts slightly more willing to afford plaintiffs an argument for the discovery rule, because mass media publication in a sea of online content might not rise to an injured's attention as quickly as a story in the town paper in ye olden days. But courts' patience is not without limit. In the online environment, courts have adapted another rule familiar to the conventional interplay of mass media and the discovery rule. As the SJC opined, in part quoting the Massachusetts Appeals Court:

"[W]here an alleged defamatory publication is broadly circulated to the public, and did not involve concealment or confidential communications," the discovery rule will not be applied, and the cause of action will accrue upon publication, as such widespread publication should have been discovered by the plaintiff.

In other words, the limitations period runs upon publication, unless plaintiff can invoke the discovery rule because a reasonable person would not have recognized the harm and arguably causal actor, unless the thing was out there for everyone so the plaintiff should have recognized the harm and arguably causal actor—in which case we come back around to publication again.

If that sounds circular .... Right. The problem with this approach is that if a reasonable person would not have recognized harm, cause, and actor, then, by definition, the plaintiff cannot be expected to have recognized harm, cause, and actor. In tort analysis, the word "should" means "a reasonable person would."

What this approach really allows is for the court to deny the plaintiff the latitude of the discovery rule as a matter of law, and to dismiss, without having to hassle (or Hassel) with the plaintiff's reasonable cognizance as a question of fact suitable for trial. In short, what the court giveth, the court may taketh away.

And that's what happened in the instant case. The federal district court first indicated that it was inclined to dismiss because the ads appeared too long ago. When the plaintiffs tried to invoke the discovery rule, the court was skeptical. These are world famous models with agents whose job it is to scan for unlicensed uses of clients' likenesses, and with lawyers who have sued over misappropriations before. All the same, the court concluded, credibility notwithstanding, these images were out there in the world long enough that the plaintiffs should have found out about them. So no discovery rule.

What seems to have given the court pause on reconsideration is that the images here were posted on social media. A paralegal in the employ of the plaintiffs

attested that there is no software that would allow her to efficiently search for the images in question and that Internet search engines do not search social media posts. As a result, the only available method is this "particularized research of particular establishments." It is this process, presumably, that led the plaintiffs to the defendant's Facebook posts.

But that took time.

The witness had a point. Google seems slow to index social media when it does at all. Many writers have trumpeted "the death of the search engine," as users prefer to seek answers in familiar social media not as polluted as Google search results with commercialization and distortions resulting from digital marketing under the guise of "optimization."

As well, the tech giants seem to have backed off image searching. When reverse image search first came out, I had fun seeing what famous people Google thought I looked like. Now, no matter what image I start with, Google either finds me, or finds nothing, saying, "Results for people are limited. Try searching a larger [image] area." The search tools can't have gotten dumber; that must be a choice. The SJC observed in evidence in the case that Facebook terminated its image search tool in 2021.

You see it, right?

There are now reverse image search apps, by the way, especially for celebrity matches. I'm apparently a dead ringer for UK actress Natalie Dormer (image via Flickr by Gage Skidmore CC BY-SA 2.0, cropped) or the great James Earl Jones (image via Flickr by Phil Davis CC BY-NC-SA 2.0, edited). Eat your heart out, Hollywood. The Celebs app sees me.

The federal district court thus asked the SJC to clarify how the statute of limitations works in a social media world.

In a characteristically methodical opinion for a unanimous court, Justice Scott Kafker stepped through the analysis in 25 pages. The opinion is elaborative, but it adds nothing new. The approach remains: publication, unless discovery rule, unless broad circulation. At greater length in conclusion, here is the court's explanation of the discovery rule in the context of social media:

Claims ... that arise from material posted to social media platforms accrue when a plaintiff knows, or reasonably should know, that he or she has been harmed by the defendant's publication of that material. Given how vast the social media universe is on the Internet, and how access to, and the ability to search for, social media posts may vary from platform to platform and even from post to post, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution, and the accessibility and searchability of the posting. The application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant's post on social media must often be left to the finder of fact. If, however, the material posted to social media is widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.

The record was insufficient, the SJC opined, to determine how the approach should work in the instant case. The plaintiffs had equivocated, the SJC observed, when asked when they first knew about the postings. If they knew before 2018, the court reasoned, then case over. Someone should ask them that.

It is possible for the conventional "whisper" scenario to play out on social media. The SJC cited a California case, Jones v. Reekes (Cal. Ct. App. 2022), in which plaintiff had been blocked from viewing the defendant's postings. Still, the California court concluded that the postings "were otherwise available to the public[,] and the block was easily circumventable;" moreover, the plaintiff was on alert generally to the defendant's derisive commentary. So the plaintiff was precluded from availing of the discovery rule, and the date of publication controlled.

Now I can't unsee it.

Jones was thus not exceptional as a mass media case, and I don't think Bay Watch is either. I suspect the SJC was being deferential to the federal trial court, giving it a chance to make the final call. It seems to me quite clear already that the district court did what the SJC commanded when it first ruled for the defense in 2023. The SJC having confirmed the rule, there seems little more for the district court to do but reenter that judgment.

The result might seem unfair to the assiduously searching plaintiffs, or, more precisely, their agents and lawyers. But the statute of limitations furthers meritorious competing interests, including finality in freedom from legal jeopardy on the part of all publishers.

The case in the SJC is Davalos v. Bay Watch, Inc., No. SJC-13534 (Mass. Sept. 4, 2024) (Kafker, J.) (FindLaw). The case in the federal court is Davalos v. Baywatch, Inc., No. 1:21-cv-11075 (D. Mass. Dec. 15, 2023) (Gorton, Dist. J.) (Court Listener).

UPDATE, Sept. 12: I was saddened to hear of James Earl Jones's passing shortly after I published this post (N.Y. Times, Sept. 9, 2024). All joking of resemblance aside, I was a fan.