Texas attorney launches football (soccer) podcast

A Texas attorney, co-author, and former student, Jose Benavides officially has launched his football (soccer)-and-politics podcast, The Liberal Playmaker. 

The podcast on the beautiful game is available at Apple, Spotify, and on video at YouTube.

Sixteen 2025 episodes are online already, for most recent example, "Copita del Rey," Feb. 27, below. Coverage includes but definitely is not limited to the Premier League. 

Digital rights defenders gather in Taipei to tackle mass surveillance, online propaganda, authoritarianism

Culled from my notes, here are some of the most interesting things I heard last week in Taipei at RightsCon, the world's leading summit on digital rights for technology, commercial, civil society, and government sectors.

A dragon towers over the 2025 Taiwan Lantern Festival in Taoyuan.
RJ Peltz-Steele CC BY-NC-SA 4.0

Chinese Surveillance Technology

China is methodical in suppressing conversation around the world about the repression of the Uyghur people, according to representatives of the World Uyghur Congress (WUC). Within days of her speaking at the Hudson Institute, WUC Chair Rushan Abbas said, her sister and aunt in China disappeared. Chinese officials sometimes approach venues hosting conferences that will discuss the Uyghurs and offer them double the price to cancel the conference contract, according to Haiyuer Kuerban, director of the WUC Berlin office. Now governments in England and Germany are keen to buy from Chinese firms such as Huawei the very tech that Chinese authorities use to surveil Uyghur activists and their families, Kuerban said, a perverse reward for the facilitation of human rights abuse.

Linjiang night market bustles in Taipei.
RJ Peltz-Steele CC BY-NC-SA 4.0

If you use a China-based media service such as WeChat even outside China, you might be helping the Chinese surveillance apparatus. Open Technology Fund Fellow Pellaeon Lin explained that censors scan files shared online and "fingerprint" them to tailor the blocking of sensitive content from recipients in China. Scanning and fingerprinting happens on Chinese tech even when when users share content wholly outside China. Chinese users, meanwhile, can't penetrate "the great firewall" as easily as in the past, Lin explained. Authorities can see when a VPN is used, if not the content, and that's reason enough to bring someone in for questioning. Tor is better than a VPN because it wraps and disguises internet traffic within innocent transmissions. But Lin warns, it's a game of cat and mouse; the censors are always refining their methods.

Undersea Infrastructure

Remember that all of these panels took place in Taiwan, so criticism of China carried a grave sort of resonance. While discussion of digital rights naturally suggests the metaphysics of cyberspace, the infrastructure of the infosphere exists very much in the real world. One fascinating panel of experts fretted over the vulnerability of the world's undersea cables. Recent outages, such as the cut cable in the Gulf of Finland at Christmas, concerningly exhibit indicia of human agency. Professor Yachi Chiang, of the National Taiwan Ocean University, said, to my surprise, that Taiwan is located at right about the world's highest-density crossroads of undersea traffic. She's right; you can see it at the Submarine Cable Map by TeleGeography:

Submarine Cable Map CC BY-SA 4.0

The security challenges of this network are massive. About 20% of damage results from natural forces, such as deterioration and shark bites, Chiang said; sharks like to bite cables. About 70% of damage is caused by people. A lot of that is inadvertent, anchoring by fishing vessels. But there's no easy way to determine whether there was a malicious act, much less a nation behind it. In the Christmas incident, Finnish officials have alleged a deliberate anchor drag by a Cook Islands-flagged vessel doing Russia's bidding, NPR reported in December.

Taiwan had five incidents already in 2025, Chiang said, with four domestic lines and one international line disrupted. In one incident, the Taiwan Coast Guard took a vessel into custody and detained the crew. That incident was suspicious, because the boat had irregular routing for fishing and inexplicably bore a changeable nameboard. But the capture was exceptional, only possible because the ship was in Taiwanese waters, Chiang explained. On the high seas, ships bear flags of convenience, and any claim against the vessel must be taken up with the flag nation. Those claims in distant and ill developed bureaucracies go nowhere. So some better coordinated legal response is needed to protect the undersea information infrastructure, Chiang concluded.

Authoritarianism in Africa

While the United States retreats to some amalgam of isolationism and opportunism, China is dominating the developing world technologically. China built more than 70% of the 4G network in Africa, Amnesty International's Sikula Oniala said, and now is working on 5G. Chinese-made TVs are flooding the market, Oniala said, but to work, they must be connected to the internet via their Chinese software, raising specters of surveillance and control.

Starlink deployment over
Rhode Island, February 2025.

RJ Peltz-Steele CC BY-NC-SA 4.0

Authoritarian impulses in Africa are ever more complemented by Chinese technology and strategies. Governments control the gateways for internet access; last year, protests were met with internet shutdowns in Kenya, Mozambique, Tanzania, Mauritius and Equatorial Guinea, VOA reported. Amid the civil war in Sudan, both sides have used internet shutdowns strategically, cutting off information about unfriendly protests, permitting access when it undermines the enemy, and charging usurious rates for access to vital information, according to Hussam Mahjoub, co-founder of Sudan Bukra, an independent television channel.

While Starlink seems to promise liberation from government gateways, authorities in countries such as Sudan refuse to license the service and are pressuring the company to limit roaming access for accounts opened abroad, such as in neighboring Kenya, Mahjoub said. Worse, Tor Project Executive Director Isabela Fernandes warned, beware the gift bearer. The Bolsonaro regime in Brazil used Starlink data to track down and kill indigenous activists, she said.

Correspondingly, public access to information (ATI, freedom of information, or FOI) law is on the wane. In Kenya, Uganda, and Zimbabwe, mass surveillance is chilling human rights activism. And governments—even Kenya, the ATI law of which, on paper at least, I praised—are following Chinese examples in ATI law, Oniala said, reducing transparency purportedly in the name of national security.

Data Protection in Africa

Even with the best of intentions, African governments hardly can be expected to stand up to tech giants such as Meta, with turnovers that dwarf nations' GDPs, Open Technology Fund Fellow Tomiwa Ilori said. Speaking to African countries' efforts to establish meaningful enforcement of data protection laws, Ilori analogized: "You only get to kill snakes because they don't move together." In other words, African countries must coordinate their efforts. Franco Giandana Gigena, an Argentine lawyer and policy analyst for Access Now, described a similar dynamic in Latin American countries' inability to resist incentives from the U.S. government and American corporations to look the other way on data protection enforcement.

In the vein of collective action, the African Union Convention on Cyber Security and Personal Data Protection came into force in 2023, upon accession by Mauritania. However, the convention, adopted in 2014, already is dated. Ilori suggested it would benefit from optional protocols on extraterritorial application and stronger enforcement, and overall, African people need more education about their rights.

At that, there might be cultural impediments to EU-style data protection. Thobekile Matimbe, a senior project manager for the Nigeria-based Paradigm Initiative, said that the convention perspective on privacy, while inspired by the EU General Data Protection Regulation (GDPR), is more communitarian than individualist. Curiously, the African perspective, which prizes the integrity of the family, for example, over self-determination or the right to dissent, marks the same ground from which the human right of data protection emerged in the European tradition. The problem, Matimbe explained, is that authoritarians invoke the communitarian perspective to subordinate personal freedoms to the purported imperative of national security. That rationalization has seen surveillance deployed in Malawi, for one example, targeting human rights advocates, critics of government, and journalists, Matimbe said.

Disinformation Regulation

The classical dichotomy between true and false no longer works to balance free expression and disinformation regulation, according to Lutz Güllner, head of the European Economic and Trade Office in Taiwan. As Ukrainian journalist and Public Interest Journalism Lab CEO Nataliya Gumenyuk put it, debunking just isn't working anymore.

The problem, Güllner said, is that disinformation can have truth at its core, but the dis arises in the spin. That's why, he said, the EU's new Digital Services Act (DSA) aims not at content, but at manner of presentation: imposing on Big Tech a responsibility to police platforms for manipulative amplification of speech or suppression of others' speech (for example, planting an item of disinformation in a flood of mundane but accurate news). That isn't to say that the DSA strikes the right balance. Dionysia Peppa, a Greek lawyer and senior policy analyst for Beirut-based SMEX, said that the DSA rule on takedown of illegal content does not define "illegal," devolving authority to member states. In a time of right-leaning elections in Europe, states might disagree sharply over politically charged questions, such as when policy criticism of Israel becomes illegal hate speech.

In a similar vein, Liliana Vitu, chair of the Audiovisual Council of Moldova, talked about the challenges of combatting Russian propaganda in mass media. Banning "primitive propaganda" in "news" and talk shows was easy, she said. The devil lay in entertainment. For example, Russia-originating programs might consistently portray European characters as gay, effeminate, or weak, playing to stereotypes, she explained, while Russian characters appear masculine and strong.

Ukrainian journalists Nataliya Gumenyuk and Angelina Kariakina
talk about The Reckoning Project, which trains conflict journalists
in the preservation of evidence to prosecute war crimes.
RJ Peltz-Steele CC BY-NC-SA 4.0

As mere debunking doesn't work, Gumenyuk described research from The Reckoning Project seeking to figure out how journalists should combat disinformation. Viewers suffer from "compassion fatigue" at all the suffering in the world, she said. So when confronted with fact-based news accounts, such as the appearance of a drowned Syrian boy on a Bodrum beach, or the torture and murder of civilians in Bucha, Ukraine, viewers resisted and complained that journalists are out to manipulate them emotionally. The same viewers, though, proved receptive to people's firsthand accounts in documentaries. Gumenyuk described her astonishment at one study subject's testimony that he trusted the documentary more than the news because journalists were not telling the story. He seemed utterly unaware that the documentary form is a product of journalism and no more or less capable of conveying viewpoint than a news story.

The Reckoning Project, which Gumenyuk co-founded, occupies a compelling position at the junction of journalism and law. Gumenyuk said she tired of seeing reports collected by journalists excluded from war-crime investigations and prosecutions because the journalists did not understand rules of evidence. The Reckoning Project brings together journalists and lawyers to accomplish their complementary missions in seeking truth and justice. Gumenyuk gave as an example the questions a journalist might ask of a witness of atrocities, such as those committed by Russian forces against civilians in Bucha. Ordinarily, a journalist might ask, "How did the Russian soldiers kill this man?" But a leading question yields exclusion of the response as evidence in a legal proceeding. So journalists are trained to ask instead, "Tell me what happened that day."

Apropos of lawyering skills and picking up on the point that tech and its ill-intentioned users evolve faster than law and regulators, Armenian attorney and former head of the Armenian Data Protection Authority Gevorg Hayrapetyan played my tune when he told an audience:

One of the most important disciplines in law is philosophy of law, what law is and what it ought to be. One of the most important steps in developing human rights is recognizing the right.

Data protection, after all, was not a thing until someone thought of it. Maybe that's why it's not a thing in the United States. If we strip black-letter law of theory and policy and dumb down the American law school curriculum to comprise a glorified bar course and skills-training program, then we're headed in the right direction. Right? Asking for a friend.

Time to Save the World

Even were we all so inclined, is there time yet to save the world? Probably not. Law and regulation can't keep up, Güllner said, so the answer has to come from education, to develop people's sensory reflexes to detect disinformation. That will take a generation. "Ask my Ukrainian colleagues," he said. "We don't have that long."

Vitu described complex Moldovan legislation with multi-factor tests to determine whether disinformation conveys falsity and threatens national security. But that took years to develop with civil society stakeholders at the table to protect free expression; propaganda meanwhile grew yet more sophisticated. "Moscow never sleeps," she lamented. 

And Raša Nedeljkov, with the Serbian Center for Research, Transparency and Accountability, summed up the anxiety wracking the world:

A beacon of light for us was U.S. democracy. Now look what is happening.

Maybe that's the silver lining, journalist Tess Bacalla of the Asia Democracy Network suggested: The rest of the world, especially the European Union, will have to step up.

Civil conflict in Mali devastates innocents, while indifference, deference to Russia undermine U.S. policy

U.N. peacekeepers, here a Togolese soldier near Mopti in 2018,
provided enough security for local markets to function.
MINUSMA (UN Mission in Mali) photo via Flickr CC BY-NC-SA 2.0

The Putin-backed Wagner Group is among the aggressors responsible for ongoing violence against civilians in Mali, and the United States is sabotaging its own future by ignoring the multiplying atrocities there. 

As the Trump Administration cozies up to Russian President Vladimir Putin, apparently to redraw the borders of Europe Munich Agreement-style, it's worth remembering who our new partner in peace is. Correspondingly, U.S. withdrawal from U.N. aid operations suggests minding what it is we're withdrawing from.

A friend in central Mali, from a village so small it's not on Google Maps, but west of Bandiagara, wrote last week pleading for support for foreign intervention there. He reported civilians murdered and displaced and villages and food stores burned in the region in recent weeks. I am not naming my friend for his security, as he remains in the area.

Mali
ECHO Base Map via GetArchive, public domain

The situation is complex, as both rebel Islamist militants and government counterinsurgent forces, the latter partnered with private contractors such as "Africa Corps" né Wagner, are at war, de facto, with both sides ruthlessly victimizing civilians caught in the middle.

Human Rights Watch (HRW) confirmed in a December report:

The JNIM [al-Qaeda-linked Jama’at Nusrat al-Islam wa al-Muslimeen (Group for the Support of Islam and Muslims)] has burned homes and looted livestock in Bandiagara region since June. JNIM fighters attacked several villages in the Doucombo and Pignari Bana district areas, setting over 1,000 homes on fire, stealing at least 3,500 animals, and forcing thousands of residents to flee, according to witnesses. Residents said the attacks were in apparent retaliation against communities that the JNIM accused of collaborating with [a collective self-defense militia organized to secure area villages].

Neither side in the conflict boasts a moral record. HRW reported:

Since May 2024, Malian armed forces and the Wagner Group have deliberately killed at least 32 civilians, including 7 in a drone strike, forcibly disappeared 4 others, and burned at least 100 homes in military operations in towns and villages in central and northern Mali. Two Islamist armed groups, [JNIM] and [Group for the Support] of the Islamic State in the Greater Sahara (ISGS), have summarily executed at least 47 civilians and displaced thousands .... Human Rights Watch received credible reports of hundreds more civilians killed, but due to the difficulties of conducting research in central and northern Mali, the numbers in this report are conservative. 

At the request of Malian authorities, a U.N. peacekeeping mission withdrew from Mali in December 2023 after itself coming under attack in the cross-fighting. French forces had withdrawn the previous year. The U.N. mission had been in Mali for 10 years, but its presence did not prevent two military coups in the last five years. The junta now in control of the government seems intent on extinguishing the insurgency at any cost, but it's far from clear whether either side can prevail.

The worsening situation in Mali is indicative of destabilization across west and central Africa. Military coups toppled governments in Burkina Faso in 2022 and in Niger in 2023. Now the three military governments of Burkina Faso, Niger, and Mali have withdrawn from the Economic Community of West African States (ECOWAS). Meanwhile, combatants' calls for U.N. withdrawal are growing in other hot spots, such as DR Congo, where rebels have taken the key city of Goma.

ECOWAS (2018)
St.Krekeler via Wikimedia Commons CC BY-SA 3.0

In my travels in West Africa, I found ECOWAS to be a profoundly stabilizing force and engine of economic development. The free trade group, formerly 15 countries, allowed fragile economies a chance to level the playing field in the global market. A common currency, the "eco," was planned to supplant and surpass the CFA franc.

Indicative of the progress made possible by ECOWAS, my friend in Mali messaged last year, keen to get the word out about his nascent tourism venture. Bandiagara is within a day's travel of Timbuktu, the UNESCO World Heritage Site that has been mostly inaccessible to outsiders for more than a dozen years because of armed conflict.

Now social and economic progress in the region is disintegrating.

To be clear, I do not contend that the United States or the United Nations should ride to the rescue with military force in Mali. Neither side in the conflict there wants western intervention, and we would sink into a lethal quicksand by merely adding a third side in the fighting.

However, diplomatic intervention to start with, and international peacekeeping later, could be vital to save generations of innocent people from murder, abuse, and starvation. I am mindful that my International Law class will soon study use of force, a unit that prompts sorrowful consideration of the western indifference that permitted the Rwandan genocide to play out unhindered.

HRW decried the conflict in Mali for both sides' utter disregard of "the laws of war." Between U.S. willingness to reward Putin's invasion of Ukraine with gained territory and a repeat of willful western blindness to the trampling of human rights in Africa, the entire project of international law that was built upon the ashes of World War II is now in jeopardy.

The Trump Administration seems content to let the United Nations fall by the wayside in favor of a transactional approach to foreign policy. Thus, for example, the key to a Trump peace plan in Ukraine, and any hope that Ukraine would recover lost territory in such a plan, seems to turn on a deal for U.S. access to rare-earth minerals in the country's east.

But it is in fact a transactional foreign policy that I suggest will suffer if we disregard Africa. Development of extractive industries—Mali has diamonds, gold, and uranium—is a desirable goal; the question is, who will benefit?

ECOWAS, after the model of the European economic community, and U.N. peacekeeping, which makes free trade possible, represent a west-leaning African future in which ordinary people benefit from development with rising standards of living. This isn't charity. The United States would benefit from vibrant, free-market commerce with an economically developed West Africa. All boats float.

In contrast, Russia seeks to expand its sphere of influence by undermining democratic participation and capturing governments with authoritarian oligarchy. That means an east-leaning African future in which ordinary people are subordinated and impoverished. The United States loses in that scenario; our only benefit from wealthier eastern oligarchs will be the sale of more prime U.S. property to foreign owners.

As the United Nations has been nothing but a thorn in the side of neo-imperial Russian ambitions, Putin would like nothing better than to put the organization to death. In corollary, he must be delighted by the demise of USAID, which represents our foreign policy leverage in Africa.

The United States lets its influence wane and turns its back on the world at its own peril.

Here is a list of NGOs, IGOs, and charities working in Mali.

Comparative law research reaches prisoner rights; women's rights; tech patents; internet, drug reg

Law Offices of James L. Arrasmith CC BY-NC 4.0

In fall 2024, I had the privilege of teaching Comparative Law for the sixth time.

For my time and energies, the course is the best one to teach, because it offers the best opportunity for a lifelong learner. Law teaching usually requires mastering a broad and deep range of content so that one can guide students capably through it. Not so in Comparative Law, in which the teacher cannot possibly know the substantive content of all of the legal systems of the world. Rather, the course is about arming students with the tools of comparative methodology, and then savoring the opportunity to learn from them, what they find in their own research.

This year was not lacking in the savory. As I have in the past, I am proud and pleased to share a collection of abstracts representing the yeoman work of my students in the fall semester. You will see that the students devised some wonderfully innovative theses. The subject matter that researchers tackled spanned prisoner legal rights, marijuana and gambling regulation, black women's representation in the legal profession, women's rights in Afghanistan and in Dutch sex work, semiconductor patents, and regulation of online misinformation.

Alayna Wageman, Prisoners Are Human Too: A Comparative Analysis of Prisoners' Right to Legal Assistance in Chile and the United States. Both Chile and the United States guarantee, through their constitutions, the right to legal counsel for individuals who cannot afford a lawyer during criminal prosecutions. However, prisoners lack resources to access legal assistance when their basic human rights are violated while incarcerated. This project seeks to show how the extreme traumatization of citizens in the United States from the years of slavery and the extreme traumatization of citizens in Chile from the years of dictatorship continue to impact the treatment of prisoners today. This paper begins with an overview of the history of slavery in the United States, specifically in Massachusetts, and an overview of the history of dictatorship in Chile. Next, the paper will explain the laws that define the right to legal assistance for prisoners in Chile and Massachusetts. Finally, the paper compares two programs designed to improve prisoners' access to legal resources: the Prisoners' Legal Services (PLS) of Massachusetts in the United States and the Penitentiary Defense Program (Programa de Defensa Penal Pública Penitenciaria) in Chile. This analysis demonstrates how the influence of the historical extreme traumatization of societies continues to impact the treatment of prisoners in both countries, with focus on the limitation of access to legal assistance in prisons. The paper concludes by acknowledging the efforts of the PLS and the Penitentiary Defense Program, which are working to further protect the rights of prisoners.

Bryce Mayo, Comparing the Impact of Sports Gambling Advertising: A Legal Exploration of the United States and Australia. The recent legalization of sports gambling has taken the United States by storm, and as a result, an influx of advertising has taken over every commercial break. Sports fans, avid and casual viewers alike, cannot help but notice sportsbooks like BetMGM, FanDuel, and DraftKings attempt to entice an already invested community into raising the stakes of a game or match. These companies use tactics such as celebrity endorsements, sign-up promotions, and "can't lose bets" on your first wager. This paper compares how the United States and Australia have approached the regulation of sports gambling advertising since its legalization in 2018 and 1983, respectively. Although both countries follow the common law system, the legalization of sports gambling came about in drastically different ways. The United States struck down a longstanding congressional act, while Australia codified sports gambling, even making the first sportsbooks state owned and operated. Recently, Australia has issued licenses to private or publicly owned sportsbooks and their advertising regulations have changed as a result; whereas in the United States, private and publicly owned sportsbooks are the primary recipients of licenses, yet the regulations mirror that of Australia in 1983. Legalizing sports gambling in the United States is in its infancy, and growing pains are inevitable. It appears to be the wild west, quite reminiscent of tobacco advertising in years past. The United States can learn from Australia's experience and seek a balance between maintaining a profitable market and minimizing the creation of degenerate gamblers.

Carson Powell, Quality Over Quantity: A Comparative Analysis of Marijuana Quality Control Regulations Between the Netherlands and the United States. This paper compares the law and regulations of the United States and the Netherlands, on the regulations that are used to ensure the quality of marijuana sold legally. First, the paper focus will be on the Dutch marijuana policy, and its past, current and future regulation protecting the quality of the marijuana sold in "coffee shops." Next, the focus will shift to the United States and specifically Colorado regulations when testing the quality of marijuana. The paper views policies implemented to ensure quality and safety within the production, testing, distribution and the sale of cannabis/marijuana products. Finally, the paper compares Netherlands regulations on marijuana quality assurance and with Colorado laws and regulations that establish the safety of state citizens. The paper compares the laws and regulations, how they relate to each other, and the social results. The paper concludes with recommendations based on the comparisons drawn from the two parties, and whether each can become more effective and efficient with its own processes.

Kennia Joseph, A Comparative Analysis of Gender and Racial Equality for Black and Nigerian Women in the Legal Profession. This paper compares the laws in the United States and Nigeria that address gender and racial equality and their effect on black and Nigerian women in the workforce, specifically in the legal profession. One of the key issues in ensuring gender equality in employment lies in enforcing existing laws and policies. The comparison between Title VII of the Civil Rights Act and the overturned affirmative action practices thereunder, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the failed Nigerian Gender and Equal Opportunity Bill of 2016 highlight underrepresentation in the legal field. Despite developing systems to support and encourage race and gender equality, black women from different cultures, and political, societal, and economic climates share experiences in the same profession with similar laws, initiatives, and policies.

Nick Saathoff, A Comparison Between Patents on Semiconductors in Germany and the United States. Patent law in Germany and the United States protects those who invent or discover patentable processes. Ideologies between the two countries differ in the field. In the United States, a patent is mainly a monetary protection. In Germany, in addition to monetary protection, there is an honor and prestige associated with inventing. This paper discusses patent law in each country specific to the field of semiconductors. Semiconductors are one of the most technologically significant patentable items in the world today. The paper initially provides an overview of patent law in each country and what role semiconductors play. This paper identifies similarities and differences between patent protections, patent quality, and patent strategies in the United States and Germany. In doing so, the paper discusses key requirements of obtaining a patent. The paper discusses one requirement at a time, discussing the interpretation in the United States and the interpretation in Germany. The paper then notes patent statutes in each country specific to the semiconductor industry. Additionally, the paper will discuss nuances in each country’s patent laws in the semiconductor industry.

Rebecca Stump, A Comparative Look at Sex Work in the United States and the Netherlands. Sex work, historically, has been a controversial occupation for a variety of reasons, including religious beliefs, women’s rights, bodily autonomy, and the extent to which the state should regulate an individual's choices over their own bodies. During this period, sex work has been considered a shameful profession, one which must be criminalized to deter human trafficking or coercion. However, as understanding and advocacy for bodily autonomy and freedom to self, and countries such as the Netherlands reform and change their sex work laws, there are movements for change to law in the United States. The aim is for a discussion, through comparison of the legal systems of Nevada and the Netherlands and the main avenues for reform, partial decriminalization and full decriminalization or legalization, the social and legal implications of legalization of sex work to further investigate reform in the United States. Within research regarding sex work, there are critical biases that must be acknowledged prior to engaging in discussion. First, and foremost, is the moral and ethical considerations of sex work. Sex work is not merely seen as an occupation free from moral implication, but an occupation for which every person may offer their individual consideration as to the ethical value of the work. To engage in substantive discussion, morality must be stripped away. Instead, one must be willing to engage in discussion solely on the legal ability of an individual to make a choice regarding the services they offer using their person, and the role of the state in legislating that decision. To that point, a discussion regarding the legality of sex work is necessarily a discussion of the extent to which the state should regulate labor. There exist various viewpoints as to the question of federalism and the role of the state to regulate. This bias must also be considered.

Sean Pillai, Afghan Women's Human Rights: A Legal Analysis of Constitutional Governance vs. the Taliban Rule. Afghanistan’s history of political turbulence and violent turmoil have repeatedly challenged the legal and social status of women. Afghanistan attempted to rebuild as a democratic nation and included rights to protect women. Under the 2004 constitution, women gained significant legal rights, such as access to education, safety and freedom of movement and employment opportunities, marking a stark contrast to the Taliban's earlier reign (1996-2001). However, the progress made was curtailed with the withdrawal of U.S. forces in 2021 and the Taliban return to power. This analysis will address the shift in legal protections and the impact on societal roles for women contrasting the two eras: the 2004 constitutional government and the Taliban regime 2021 to present. By comparing the legal frameworks and implementation of women's rights in key domains such as women's access to education, safety and freedom of movement, and women's access to employment, this paper seeks to provide an understanding of the impact the two legal systems have on women.

Shiloh Worthington, The Digital Services Act vs. Section 230: The Western Hemisphere's Battle Against Misinformation. The European Union and the United States have both recognized the disparate effects of rampant and unchecked misinformation spreading across the internet. However, each has a distinct approach to combatting this epidemic of troublesome content. The EU battle against misinformation is best exemplified by the recently passed Digital Services Act (DSA), which places the primary responsibility of stopping the spread on the platforms themselves. Meanwhile, in the United States, the struggle to fight misinformation is at odds with the First Amendment rights of the platforms. Section 230 of the Communications Decency Act offers platforms total immunity for their misinformation content-removal practices, no matter how it conflicts with individual freedom of expression. Further conflict arises as the EU's DSA attempts to force American-based platforms with European audiences to comply with its content-removal practices under misinformation-related pretenses, even if doing so would remove American citizens' content otherwise protected by the U.S. Constitution.

Watch for these students on upcoming bar pass lists in a state near you!

Flags from Flagpedia, except Afghanistan Taliban from Wikimedia Commons, all public domain.

Researcher seeks to ease persistent anticompetitive constraints on indie films in online environment

Yaleth Calderon, a film school graduate and candidate for the California bar, has published a law review note on antitrust, online technology, and independent filmmaking.

Are There Plenty of Movies in the Sea?: How a Revision of the Terminated Paramount Decrees Could Benefit the Market for Independent Filmmakers appears in the latest issue, volume 20, page 111, of the UMass Law Review. Here is the abstract:

In the early years of filmmaking, the Supreme Court passed the Paramount Decrees as a set of rules prohibiting certain practices by major production companies that restrained competition within the industry. The creation of the internet has not only changed the way society has consumed media, but it has also affected the opportunities for filmmakers to share their works with the world. In 2020, the Paramount Decrees were overturned, dramatically limiting the distribution channels, creative control, and marketing opportunities held by independent filmmakers. This note outlines the injury felt by independent filmmakers and proposes specific rules inspired by the Paramount Decrees that the Federal Trade Commission could enact to mitigate some of the adverse effects of the decision.

The journal is transitioning to a new online publication platform, so volume 20 is not yet online. The new platform is expected to launch in summer 2025. Meanwhile, Calderon generously has made the piece available to Savory Tort readers here.

In an author's note, Calderon wrote that "[t]his article is an attempt to contribute to the ever-changing challenges towards film distribution in the digital era."

Calderon is an alumna of my comparative law class, in which it was a pleasure to have her. She received her B.A. in Cinema and Digital Media and English, with an emphasis in literature, criticism, and theory, from the University of California Davis. Last year, she served as a judicial extern at the L.A. Superior Court. After finishing law school this spring, Calderon plans to return to her home Los Angeles to practice law in California.

Calderon's subject matter is dear to my heart, too. Morgan Steele, my daughter, works in film in Los Angeles and has directed shorts. She just made a cameo in an Instagram promo (below) for The Gorge (streaming today on AppleTV+ (subscription wall)). Paul McAlarney, my friend and former TA and RA, now a New York lawyer, was an independent filmmaker before law school.

Exactly as Calderon recognizes, the streaming environment has multiplied the potential for independent distribution in film, but anticompetitive practices in the market have precluded the full realization of that potential, to the detriment of both creators and viewers.

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Americans can't find doctors in sick system, but docs whine too loudly on debt, ignore excessive earnings

In the current AARP Bulletin (pay wall, Apple News), New York Dr. Howard Zucker capably explains why Americans are being squeezed by a doctor shortage. But two points of Zucker's explanation too easily let doctors off the hook and require clarification.

I hope tomorrow to meet my primary care physician (PCP) for the first time, after he's nominally served in that role for two years. I've seen five PCPs come and go in as many years, which is really like not having a PCP at all—oddly, as my insurer insists that I must have one. The annual checkup has become biennial at best, and it's not for my lack of trying. At that, with my mediocre employment-based healthcare coverage, I'm more fortunate than many Americans.

Zucker describes the many circumstances converging to deprive Americans of access to healthcare providers. A leading problem is poor planning by the medical profession, embodied by the American Medical Association (AMA), for an increasing and aging population.

Another factor, which is familiar to patients, is the pressure by profit-driven healthcare proprietors, such as CVS, to commodify patient care, superseding the doctor-patient relationship and thoughtful care with the churning cauldron of the billable quarter hour. Workplace conditions for front-line PCPs are not only maddening patients, but driving some healthcare providers, literally, to madness.

Nevertheless, there are two ways in which Zucker goes too easy on doctors, letting them off the hook for responsibility in this mess.

First, Zucker is wrong that a doctor can't get by with medical school debt and a PCP wage.  

He wrote that the average medical student finishes school with $235,000 in debt. Specialties pay some double the wage of primary care. Research posts pay well and don't have insurers dictating terms. So debt-burdened students are disincentivized to enter family practice or to work directly with patients at all. 

Still, Zucker wrote: "Now consider that the average [PCP] in internal medicine, geriatrics, pediatrics or family medicine makes about $250,000 to $275,000 a year. Becoming a PCP just isn't financially feasible for most recent graduates."  Just for the record, that's more than I've ever made at any job, and I've had a law degree for 28 years.

Not financially preferable I can see.  Not financially feasible is plain wrong.

For comparison, the average indebtedness of a U.S. law school graduate is $130,000, according to the Education Data Initiative. For the law school where I work, it's about the same, $125,405, U.S. News reported. The median law graduate salary is $89,250, according to U.S. News. My school's is about $68,000, according to LSD.Law. Ballpark monthly repayment, using, for these gross purposes, a 4.5% rate and 10-year term, means a monthly payment of $1,347, according to the SmartAsset student loan calculator.

To be sure, that's too much debt to make law school an appealing option. The Consumer Finance Protection Bureau recommends limiting borrowing to hold monthly payments at 10% of gross income. Those median salaries yield a monthly gross of $7,438 or $5,667, respectively, so a monthly payment at 18.1% or 23.8%. 

But it is possible, depending on one's needs. An annual $89,250 or $68,000 should yield a monthly take-home of about $5,600 or $4,400, according to the SmartAsset paycheck calculator. On the one hand, the average American household requires $6,440 per month, according to multiple sources. On the other hand, a single adult with no children can get by on $3,439 in the Massachusetts county where my school is located, according to the MIT living wage calculator. The overall average American individual is bringing home only about $4,000 monthly, using Bureau of Labor Statistics (BLS) data, so one salary isn't meeting household expenses in any event.

Accordingly, using the same metrics, the medical graduate's monthly debt payment would be $2,434. The PCP monthly take-home at the low end would be about $14,200, on $20,833 gross. That's a payment to gross ratio of only 11.7%, with $11,766 to spare for monthly household expenses. Even at a student loan rate of 9%, the monthly payment hits only 14.3% of gross, still sparing more than $11,000 to meet expenses. (A first-year medical resident starts at only about $55,000 annually, U.S. average, but lean residency years are the quirky if objectionable norm in the profession regardless of later specialization.)

Once debt is paid off, doctor's circumstances become downright luxurious. BLS estimates the median American's lifetime earnings at $1.7m, a lawyer's at $2.3m, and a doctor's at $7.5m. 

So it is feasible to invest in medical school—even potentially lucrative—and even still to be a PCP for a few years.

Second, Zucker fails to recognize the economic protectionism of the medical profession and bloat in the salaries of U.S. doctors—even PCPs.

Zucker did fault the AMA for choking medical school admissions in the 1980s. But Zucker blamed the AMA only for bad math. The truth is more sinister.

The AMA doesn't control medical school admissions directly, but it does lobby hard for legislators to limit the number of medical schools and to limit subsidies for residencies, thus effectively controlling supply in the market. This isn't about the quality of medical training, but about economic protectionism. The AMA, that is, its members, doctors, don't want to see salaries go any lower than those dizzying quarter-million-dollar heights.

(Read more in Derek Thompson, Why America Has So Few Doctors, The Atlantic (Feb. 14, 2022).)

That's what's happened in law as antitrust rumblings have compelled the American Bar Association and state bars to let up on the gas in their economically protectionist motives over the last four or five decades. The market in legal education has become more competitive—even problematically so, from a quality standpoint, it must be admitted—and salaries have fallen.

At the same time, persistently burdensome accreditation gateways in education and strict state licensing requirements in the practice have maintained such a chokehold on the student-to-bar pipeline that the lower paid lawyers who result cannot afford to meet the market demand for legal services for ordinary people, in contrast with corporate clients.

So law is not a model to follow, to be sure. At the same time, one doctor in America does not need to take home an excess of nearly double what's required to keep up an American household, nor to make more than four times the median American lifetime wage. European doctors are paid only half as much as U.S. doctors. In fact, there's a huge gap between U.S. doctors, at an average annual gross of $352,000, and doctors anywhere else in the world—ranging from an average $19,000 in Mexico to $273,000 in Canada, according to news outlet Medscape.

Zucker didn't mention the bloat in salaries of U.S. doctors in the AARP Bulletin. Incidentally, when Dr. Zucker was New York health commissioner, earning $210,000 annually on the public payroll, he took some heat for failing to disclose a side-gig income of $75,000 annually from a health research firm, e.g., the Times Union reported.

Our healthcare system is badly broken.  Like our legal services.  Like our bridges.  The list goes on.  What I fear is missing from the solution is the willingness of Americans in the highest income brackets to bear any sense of civic responsibility. In this regard, the medical profession is not exempt.

RFK, Jr. hearing prompts reconsideration of civil, regulatory responsibility for vaccine misinformation

"Are you supportive of these onesies?" Sen. Sanders asks.
© C-SPAN (YouTube; license).

The showdown between Bernie Sanders and RFK, Jr., featuring anti-vacc onesies, got me thinking about articles published by a former student, later academic and bar colleague, positing tort and regulatory approaches to harmful vaccine misinformation.

I wrote in 2017 about physician-attorney Donald C. Arthur's Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10:1 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017). At the time, the article was behind a pay wall; it is now freely available.  Here is the abstract.

Some internet marketers offer for sale "vaccination substitutes" that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.

When Dr. Arthur and I first discussed the project in the 2010s, he was thinking about a tort theory for liability for publishers of vaccine misinformation. The tort theory is fraught, but feasible. There are problems of proof, such as the attenuated causation linking the publication of misinformation with later disease, and the inevitable First Amendment defense, which at plaintiff's most fortunate still might require culpability in excess of ignorance.

Dr. Arthur split his research into two works. He published in 2016, I didn't mention in 2017, Negative Portrayal of Vaccines by Commercial Websites: Tortious Misrepresentation, 11:2 UMass L. Rev. 122 (2016), also freely available. Here is the abstract.

Commercial website publishers use false and misleading information to create distrust of vaccines by claiming vaccines are ineffective and contain contaminants that cause autism and other disorders. The misinformation has resulted in decreased childhood vaccination rates and imperiled the public by allowing resurgence of vaccine-preventable illnesses. This Article argues that tort liability attaches to publishers of commercial websites for foreseeable harm that results when websites dissuade parents from vaccinating their children in favor of purchasing alternative products offered for sale on the websites.

When Dr. Arthur wrote both these articles in 2016, it was before the first election of Donald Trump with attendant attempts to disarm and dismantle federal consumer protection systems. The tort theory looks better now. See Dorit Reiss & John Diamond, Tort Law: Liability for Anti-Vaccine Misinformation, 4 Judges Book 107 (2020) (not citing Arthur).

Dr. Arthur is an emergency medicine and preventive medicine physician.  He served 33 years in the U.S. Navy, culminating his career as Navy surgeon general and retiring at the rank of vice admiral. He served as chief executive officer of three hospitals, including the National Naval Medical Center in Bethesda, Maryland. Dr. Arthur teaches adjunct at UMass Law and for seven years practiced of counsel with the Law Offices of Beauregard, Burke and Franco.

HT @ Melissa Colten, UMass Law public interest fellow, whose curiosity reminded me of these articles.

Suits over DCA disaster will struggle to overcome discretionary function exception to sovereign immunity

View on my approach to DCA on a 2020 Southwest flight.
RJ Peltz-Steele CC BY-NC-SA 4.0

Media coverage of the air disaster at Reagan Washington National Airport (DCA) is moving on to prospective litigation, and abundant news outlets are warning aptly that the road to compensation for victims' families will not be smooth.

Potential defendants include the Federal Aviation Administration (FAA), which employs air traffic controllers; the U.S. military, which owned and crewed the Black Hawk helicopter in the crash, and American Airlines, which bears responsibility for the regional jet in the crash.

As the facts have shaken out thus far, with black-box content yet to be reported at the time of this writing, it's hard to see any fault on the part of American Airlines or its commercial operator. The plane had banked to change runways per traffic control instructions and was on a lesser used but still ordinary approach when it collided with the Black Hawk. There's likely nothing the pilots could have done to avoid the collision, if they even saw it coming.

Responsibility on the part of air traffic control has focused on the fact that one controller was managing both helicopter and plane traffic, while sometimes there are two. Thus far, though, one- or two-person staffing of the two traffic streams seems to be a choice of practice, based on the volume of traffic, rather than a violation of any rule.

Early armchair analysis points to responsibility on the part of the military. The helicopter seems to have been above 300 feet, for reasons unknown, when it was required to be at or below 200 feet. The pilot said he saw the plane and would avoid it, though it's not clear he saw the right plane. 

My cousin is a military pilot and has flown in this dense D.C. thicket, inset from SkyVector (DCA). He told me that avoiding flight paths entirely would be prohibitive, but that following the 200' rule should have averted collision even if the pilot mistook the approach of the plane.

With government defendants in the sights of plaintiff lawyers, frantic analysis is no doubt underway in an attempt to circumnavigate federal sovereign immunity.  Within the statutory framework of sovereign immunity, the concept of "discretionary function immunity" looms large in this case. Some time back, I recorded a video for SCOTUSbrief about a case in which discretionary function immunity figured, if collateral to a problem of a federal agency that doesn't have it. Here, the defendants do.

The instant case, such as it is as yet, is reminiscent of United States v. Varig Airlines (U.S. 1984), in which, in 1973, a fire on board a trans-Atlantic Boeing 707 flight killed 123. The plaintiffs blamed in part the FAA, alleging negligence in the issuance of a safety certificate.  The Supreme Court held unanimously that the FAA was shielded by discretionary function immunity.

The purpose of discretionary function immunity—which is really an exception to waiver of sovereign immunity in the Federal Tort Claims Act—is to preclude the courts from second-guessing policy determinations by the political branches of government. The government is willing to concede liability when it negligently deviates from obligatory practices, the logic goes, but claimants ought not be able to challenge policy choices just because they turned out to be bad ones, that is, resulted in injury.

The DCA crash reminded me of an excellent article from seven years ago on sovereign immunity and discretionary function, discussing Varig, in Advocate magazine, by L.A. attorney Steven B. Stevens. He parsed the doctrine.

If the use of only one air traffic controller is indeed customary and not contrary to any rule, then probably that's a staffing decision shielded against liability as discretionary function. The military might be vulnerable, though, on the issue of the Black Hawk's altitude. The 200' limit is an FAA rule for the Potomac-DCA corridor, CNN reported, and my cousin confirmed.

Even upon circumvention of immunity, plaintiffs will have to prove the usual negligence elements of unreasonable carelessness and causation with the crash. Black-box data will help, and plaintiffs might as well avail of the doctrine of res ipsa loquitur. "RIL" can afford plaintiffs a favorable inference when evidence, such as the pilot's motive, is unascertainable, and plane crashes, historically, have been fertile ground for invocation of the rule.

All that said, litigation against the government might never reach an immunity determination. Reuters reported on the history of limited government settlements in such cases.

As a frequent traveler to DCA, I hope that the airport can be made safer while preserving convenient access to the capital.

Amos, King: love one another; defend the oppressed; plead the cause of the innocent, the powerless

David Erickson CC BY 2.0 via Wikimedia Commons

On this Martin Luther King, Jr. weekend, I was blessed with the opportunity to stand in the pulpit of the historic North Scituate Baptist Church, Rhode Island, affording a rest for beloved Pastor Kim Nelson there.

I spoke to the Book of Amos, chapter 5, verses 21 to 24 (NIV), often cited by Dr. King. In the "I Have a Dream" speech on the steps of the Lincoln Memorial in August 1963 (photo), Dr. King quoted Amos 5:24: “[L]et judgment run down as waters, and righteousness as a mighty stream" (KJV).

In the history of the church, Amos at times has been controversial for its ominous depiction of God. But Amos contains a call for social justice that is as important and relevant today as it was in America during the Civil Rights Movement and in Israel in the 8th century B.C.

My wife and I are deeply grateful to the people at North Scituate for their warm hospitality.

Mother of slain scholar publishes his account of academic workplace mobbing at UMass (Amherst)

At the inaugural Niagara Conference on Workplace Mobbing at Niagara University last summer, easily the most moving and haunting presentation was that of Kimberly Lewis, whose son lost his life after being victimized by workplace mobbing.

A scholar, Joel Inbody authored a book manuscript about his experience as a victim of academic workplace mobbing at the University of Massachusetts (Amherst). After his death, his mother, Lewis, edited and completed the book in partnership with the pugnacious publisher Herb Richardson, founding editor of Mellen Press. 

Inbody wrote: "I wrote this book to critically explore an academic mobbing that sociologists subjected me to as a graduate student in 2018-2019. After thoroughly reviewing available literature on mobbing to highlight their history, severity, and progression, I analyze content from numerous records (emails, police reports, notes, letters, blog posts, pictures) and rely on autoethnography to describe the mobbing that I lived through."

A Student's Account of the Mobbing That Led to His Murder (How U. Mass Faculty Bullied Him to Death (2024) became available for sale at Mellen Press late last year.

Lewis's presentation, along with most of the presentations at the 2024 Niagara Conference on Workplace Mobbing, is available on YouTube.  The 2025 Niagara Conference on Workplace Mobbing (via The Savory Tort) is open for registration.

Q&A: