Laws suspending driver licenses for fines need reform

Spencer K. Schneider, a 3L at UMass Law and teaching assistant in my Torts I-II classes, has authored an article for the National Lawyers Guild Review.  He examines state systems that suspend driver licenses upon unpaid fines and their perversely circular detrimental impact.  He concludes that constitutional challenges to the systems don't hold water, but that they should be reformed as a matter of sound legislative policy.  Here is the abstract.

Forty-three states have, or previously had, some version of a driver’s license suspension program. These programs are shown to have disastrous financial effects on the lives of those who cannot afford the fines inherent in them. Challenges to such license suspension schemes have been brought throughout the United States but have been largely unsuccessful. Where relief ultimately may be found is in state legislatures or city governments. When those bodies discover that, although these programs are in fact valid and constitutional, many of them have such detrimental and long-term impacts on so many citizens, they ultimately result in more harm than good. This realization has led many states to experiment with changes to, or repeals of, their driver’s license suspension programs with varying success. However, many states still rely on the fines levied by these programs and there is a legitimate argument that the programs are imposed to keep dangerous drivers off the street. Ultimately, this is an issue that arose from legislation and, despite finding its way into the court system, must be solved with legislation.

The article is Spencer K. Schneider, The Wheels on the Bus: The Statutory Schemes that Turn Traffic Tickets into Financial Crises, 77:2 Nat'l Law. Guild Rev. 81 (Summer/Fall 2020).

All politics is local

This Ayrshire Daily News, Scotland, headline refers to the Trump Turnberry Golf Courses.  The headline caught the attention of BBC's Andrew Marr Show and was shared with me by BBC viewer and friend of the blog, Siobhan Lavery.

Trump Golf operates two properties in Scotland and one in Ireland.  The club at Aberdeen lost a fight against a nearby windfarm in the UK Supreme Court in 2015.  The New York Times Trump tax revelation caused Business Insider to mark the clubs among Trump's "most failed businesses," while seeming over-valuation of the clubs figures in New York prosecutors' ongoing investigations of Trump financial disclosures (Politico).  The Scotland properties also garnered unwanted news coverage this year for their receipt of coronavirus government bailouts (Guardian).  Nevertheless, Aberdeen recently authorized construction of a second club (BoingBoing).

Singers revel in federal judges' lifetime appointments

I just discovered The Bar & Grill Singers, an Austin, Texas-based musical revue of attorneys.  My favorite song is "Appointed Forever."

There's more at the group's YouTube channel and on the group's CD, Grilling Me Softly (iTunes, Amazon).

Big thanks to Sai, president of Fiat Fiendum, who first, via FOI-L, pointed me to the also excellent "I'm Billing Time."

Depp defamation suits in US, UK see London setback

Heard and Depp in 2015 (GabboT CC BY-SA 2.0)

Johnny Depp is fighting accusations of spousal abuse in defamation suits in England and the United States.  Apparently, I can't be disillusioned often enough about actors I like. 

At the excellent INFORRM blog, Kirsten Sjøvoll of Matrix Chambers (here) and University of Essex Law Lecturer Alexandros Antoniou (here) have the latest about Depp's suit in London, in which the defense of substantial truth has been asserted successfully.

Sjøvoll explained, "In this case, it was also not necessary for the Defendants to prove that each and every incident or allegation of domestic [violence] relied upon took place. It was enough for them to establish that it was substantially true that Mr Depp had been violent towards his ex-wife during the course of their marriage."

Outside the courtroom, Sjøvoll observed, "an army of Depp fans" have stated "strong views about the evidence via Twitter," including ridicule of Justice Andrew Nicol.  The case meanwhile has generated ample lurid detail in entertainment news about Depp's rocky relationship with ex-wife Amber Heard.

Post op-ed,
from Va. complaint

Sjøvoll and Antoniou wrote that truth was a risky defense strategy for defendant News Group Newspapers (NGN), publisher of The Sun.  When a defendant asserts truth under the 2013 UK Defamation Act, the defendant assumes the burden of proof by preponderance ("balance of probabilities").  Sjøvoll wrote:

A libel defendant who seeks to establish that the words complained of are substantially true takes a considerable risk that, if unsuccessful, the damages they may be liable for will be significantly increased. The costs of a trial in which the truth of the allegations are in issue are also likely to be much higher. Indeed, in the Depp case, it was notable that both parties instructed leading criminal counsel to conduct the cross examination of the key witnesses in addition to media law specialists. 

Depp has vowed to appeal, and Sjøvoll and Antoniou noted that he also is pursuing related defamation litigation in the United States.  Depp is suing Heard in Fairfax Circuit Court, Virginia, over a #MeToo op-ed she published in The Washington Post in 2018.  The op-ed did not refer to Depp by name, but Heard wrote about how she became "a public figure representing domestic abuse" at the time of her divorce from Depp.  The case is steaming through contentious discovery with a flurry of foreign subpoenas.

The case in London is Depp v. News Group Newspapers Ltd., [2020] EWHC 2911 (QB), Nov. 2, 2020.  The case in Virginia is Depp v. Heard, No. CL-2019-2911 (Va. Cir. Ct. Fairfax County filed Mar. 1, 2019).  HT @ Private Law Theory.

Supreme Court vacates First Amendment decision, tells lower court to certify negligence question to Louisiana

Mckesson
(HimmelrichPR CC BY-SA 2.0)

A negligence lawsuit blaming Black Lives Matter organizer DeRay Mckesson for injury to a police officer is on hold since the U.S. Supreme Court ordered the Fifth Circuit to certify the problem in tort law to the Louisiana Supreme Court.

I wrote about this case in April.  Unidentified police officer John Doe suffered severe physical injury and brain trauma after being struck in the face by a rocky projectile while responding to a protest-occupation of a Louisiana highway.  Mckesson did not throw the rock; the officer sued in negligence, accusing Mckesson of having created a violent climate as a protest organizer.  Mckesson raised a First Amendment defense, which a divided Fifth Circuit court rejected.

On appeal, the U.S. Supreme Court invoked, if not by name, the doctrine of constitutional avoidance.  The Court vacated the Fifth Circuit decision and remanded.  The Court opined that the Fifth Circuit should have asked the Louisiana Supreme Court whether state negligence law could support liability at all, before engaging with the thorny constitutional problem under the First Amendment.

Both Doe's negligence theory and Mckesson's First Amendment defense are close questions.  Mckesson never countenanced a violent attack on police.  Under conventional tort analysis, it is possible, but not easy, to show that a chain of proximate causation runs intact from a careless defendant, through an intentional, criminal act, to injury to the plaintiff, such that the careless defendant may be held liable for the violence inflicted by the intermediary criminal actor.  Imposing liability in that way obviously raises First Amendment problems when the alleged negligence is part and parcel of free speech and assembly.

Cases of such "negligent incitement" have long been problematic in First Amendment doctrine.  The "Soldier of Fortune cases" over "gun for hire" ads, e.g., Braun, Eimann, are loosely analogous.  Results have varied, and no clear rule has emerged.  Now, in the internet era, the problem has been amplified, because universal access to mass communication has exaggerated the potential for incitement.

I suggest that the Louisiana Supreme Court solve the problem through analysis of duty (or perhaps "scope of liability," if the court wishes to embrace the approach of the Third Restatement of Torts).  Duty is all about public policy, so there is no need to whisper about the First Amendment as a thumb on the scale.  It's no stretch to conclude that the organizer of a protest, even one predicated on civil disobedience, but without specific knowledge of impending violence, does not owe a duty to protect a responding police officer.  Though the Supreme Court wished to avoid the broad constitutional question of a First Amendment defense, the state court may prioritize free speech and assembly in a public policy analysis.

The case is Mckesson v. Doe, No. 19-1108, 592 U.S. ___ (Nov. 2, 2020) (SCOTUSblog).  The opinion was per curiam.  Justice Thomas dissented without opinion, and Justice Barrett took no part.

Court: Pseudonymous WeChat user cannot be libeled

As matter of law, statement is not 'of and concerning' plaintiff

Statements about a person on a social media platform are not defamatory as a matter of law when the person is known only by a pseudonym, the Massachusetts Appeals Court held this week.

Defendant and plaintiff exchanged spiteful messages in a WeChat group.  The group comprised 437 persons and was organized to support plaintiffs accusing Harvard University of discriminating against Asian-American applicants in admission.  The defendant referred to the existence of "pink-news" about the plaintiff.  As the court explained the term, "'pink-news' is a Chinese expression that refers to sex gossip or rumors."

The trial court awarded judgment for the defendant on the pleadings on the alternative grounds that the plaintiff had failed to show damages, or that the allegation of "pink-news" was "imaginative expression" or "rhetorical hyperbole," not a factual assertion capable of defamatory meaning.

The Appeals Court affirmed on different grounds.  Plaintiff had been known in the chat group only by a pseudonym.  She failed to allege that anyone in the group knew her identity.  So she could not prove that the statement in question was "of and concerning" the plaintiff, as the test for defamation requires.

The Appeals Court disavowed the grounds of decision in the trial court.  The court's discussion of the "pink-news" issue suggested that there might have been some factual question about the meaning of the term as to preclude judgment on the pleadings.  And in a footnote, the court wrote that written communication in WeChat probably is libel, not slander, so would entitle a plaintiff at least to nominal damages under Massachusetts law.

Probably the "pink-news" allegation later would have failed for the reason the trial court supposed, even if further factual investigation was warranted.  Courts in a number of cases have recognized the hyperbolic nature of social media posts.  In 2018, recognition of "hyperbole" cost "Stormy Daniels" Stephanie Clifford her claim against Donald Trump for his tweet accusing her of a "con job."  In 2019, Elon Musk successfully defended a tweet in which he had referred to the plaintiff as "pedo guy."

At the same time, this anything-goes approach to social media means, for better and worse, that tort law cannot be relied on as a social media regulator in our age of coarsening discourse.

The case is Li v. Zeng, No. AC 19-P-1546 (Mass. App. Ct. Nov. 3, 2020).  The opinion was authored by Justice James R. Milkey for a unanimous panel that also comprised Justice Wendlandt and Chief Justice Green.

'Super tort' might represent failure of public policymaking, but is only tip of melting iceberg

First Circuit remands R.I. suit against Big Oil for public nuisance

Super Tort
(pxhere.com CC0)

A "super tort" sounds delicious.  Indeed, the term refers more often to food than to a theory of civil liability.  Maybe that's why the term animated headlines recently when the defense-friendly American Tort Reform Association (ATRA) used it in an amicus brief to the Oklahoma Supreme Court.

In October, ATRA filed its brief on the side of Johnson & Johnson's appeal of a $465m trial verdict of public nuisance liability in the opioid epidemic.  In the brief, ATRA warned that the award represented a "new species of public nuisance [that] will devour all of Oklahoma tort law and, with it, who knows how many businesses."  ATRA explained (my bold):

Since its inception, public nuisance has played a circumscribed role in Oklahoman—indeed, American—jurisprudence. It originated as a property-based tort used to remedy invasions of public lands or shared resources like highways and waterways. The trial court ignored that history, transforming public nuisance into a super tort that exposes Oklahoma businesses to unlimited liability for a broad array of public issues that are far removed from traditional public nuisances.

ATRA further argued its position in terms of the separation of powers, or, classically stated, Aristotelian justice:

The decision will also chill business activity throughout the state for fear that any product linked to a perceived social problem may lead to astronomical and disproportionate liability. It is not the judiciary's role to create a new tort to address social problems. That job belongs to the legislature, which can weigh competing policy factors and study the possible consequences of expanding traditional nuisance law.

Lead paint can
(Thester11 CC BY 3.0)

This isn't the first time ATRA has bemoaned the emergence of a public nuisance "super tort."  Among other tort-reform advocates, defense attorney Phil Goldberg used the term in 2008 and in 2018 to describe lead paint liability.  On the former occasion, echoed in an industry legal brief and in legal scholarship, the Supreme Court of Rhode Island had just rejected industry liability for lead paint on grounds that the defendants had no control over the product at the time it caused harm to children.  An ATRA leader warned of "super tort" in the climate change context as early as 2011 (States News Serv., Apr. 18, 2011 (quoting Tiger Joyce)). (Inapposite here, Patrick O'Callaghan, University College Cork, used the term "super tort" in the Irish Law Times in 2006 to describe potential excess in invasion-of-privacy liability.)

Nevertheless, public nuisance is the leading theory with which the State of Rhode Island now demands that oil companies pay for the past and future consequences of climate change.  Rhode Island alleges theories of product liability and public trust, in addition to public nuisance.  The state's suit is just one of many filed by state and local governments against Big Oil.  The Sabin Center for Climate Change Law, at Columbia Law School, tracks all U.S. litigation on climate change, including the Rhode Island suit. 

Just last week, the First Circuit remanded the Rhode Island suit to state court, rejecting industry claims of federal preemption.  Meanwhile, the case in state court is on hold while the U.S. Supreme Court ponders the outer constitutional limits of personal jurisdiction.  The Court's ruling in an otherwise unrelated case, which I wrote about in April and the Court heard this fall, has ramifications for Rhode Island's thin assertion of jurisdiction over transnational oil defendants.

Over the summer, I spoke about the expansive approach to public nuisance that resulted in the colossal Oklahoma award against Johnson & Johnson and that leads government claims against Big Oil over climate change.  Corporate objections voiced by ATRA, based in Aristotelian justice, are legitimate.  Ironically, as I discussed briefly in my lecture, I see this resort to the courts as an understandable expression of public frustration with corporate capture of our political branches of government.

The Rhode Island complaint images industry-sponsored public service announcements that sewed doubt about climate change and the role of fossil fuel.

Yet despite my skepticism, as a Rhode Islander and a taxpayer, I find the allegations in the state's 2018 complaint awfully persuasive.  The climate science is neatly summarized with color charts, and I'm a sucker for a color chart.  More dispassionately persuasive of moral responsibility on the part of industry, though, are excerpts of trade association advertising that downplayed, if not mocked, climate change science at a time when the industry must have known better.  The ads are eerily reminiscent of Big Tobacco efforts to downplay the risks of smoking for decades through the selectively scientific work of the Tobacco Institute.  That makes me wonder that product liability and consumer protection might be the states' and localities' best approach, not to mention a more doctrinally conservative strategy, and therefore judicially appealing approach, compared with a no-holds-barred theory of public nuisance—if we must rely on the courts alone, after all.

We might ought worry that "super tort" will devour our rational framework of civil liability.  But rather than reject industry responsibility and liability outright, we should add "super tort" to our lately exploded catalog of reasons to examine how and why our political institutions have failed to protect the environment, public health, and human life.

The case in Rhode Island state court is Rhode Island v. Chevron Corp., No. PC-2018-4716 (Bristol County, R.I. Super. Ct. filed July 2, 2018).  The case in the First Circuit was Rhode Island v. Shell Oil Prod. Co., No. 19-1818 (1st Cir. Oct. 29, 2020).

No recklessness, no liability, court affirms in case of head injury during softball batting practice

mohamed Hassan from Pixabay

Applying recklessness doctrine in a non-competitive context, the Massachusetts Appeals Court yesterday affirmed non-liability for a collegiate softballer and Suffolk University in the case of a player hit in the head by a bat during practice.

Tort and Sport

Personal injury in sport offers fertile ground for exploring tort law, because athletic competition represents a suspension of the social contract.  Ordinarily, everyone in an orderly society knows not to push, tackle, or punch other people.  But in a sport, that can be exactly what you're supposed to do.  So a special, carefully designed standard of conduct, "the rules of the game," supersedes the usual web of unwritten norms, conveniently yielding a laboratory for socio-legal study.

If one fails to recognize the aberrant nature of the sport context, anomalous legal results pertain.  For example, every injury resulting from a collision of players on the football field is accidental, so a potential source of negligence liability.  Alternatively, many such injuries are batteries, because the defendant bore subjective intent to cause offensive contact.  At the same time, the defenses of assumption of risk and consent raise frame-of-reference problems in application.  An athlete generally assumes a risk of injury, a defendant argues, but not necessarily injury specifically in the way that it happened, the plaintiff counters.  The usual tort doctrines just don't work well to solve conflict over sporting injury.

To overcome this problem, courts in many states, including Massachusetts, have employed the tort standard of recklessness in sport cases.  Recklessness focuses on a defendant's indifference to a risk of high probability or magnitude (tests vary).  For its culpability analysis, recklessness hybridizes subjective and objective tests for culpability, thereby balancing the prohibitive prerequisite of defendant's intent with slim proof of carelessness.  The test is not a perfect tool for sporting-injury cases, but it works much better than intent and negligence rules to help courts patrol the outer boundaries of social-normative conduct in an exceptional situation.

j4p4n from openclipart.org

In Borella v. Renfro, in December 2019, the Massachusetts Appeals Court applied the recklessness standard to a case of ice-hockey injury, relying on precedent of the Supreme Judicial Court dating to 1989.  The court explained in Borella:

In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away.

.... In this case, we apply [the recklessness] standard to the game of ice hockey[,] in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever.

Dissenting, Justice Peter J. Rubin would have sent arguable questions of fact to the jury.  But he did not disagree, for jury instruction, that recklessness was the correct standard.

Batting Practice

Despite the efficacy of the recklessness standard in sport cases, things get tricky at the margins, especially when injury occurs off field, or outside the narrow context of competitive conflict between players in the course of the game.  The instant case presented such a challenge, as one player was hit in the head by a teammate accidentally, while the teammate was engaged in batting practice.

Should the recklessness analysis pertain to "friendly fire" in practice, too?  Yes, the Appeals Court answered, consistently with precedent in other states.  Recklessness is the appropriate standard for athletic practice.  

In the instant case, the unfortunate accident occurred between friends on the Suffolk University softball team.  The plaintiff-player walked too close to the swinging defendant-player at just the wrong time.  Their testimonies, and that of the supervising coach, might have supported findings for or against fault-based liability in negligence, but no matter.  The defendant's conduct did not rise to the recklessness standard, and the trial court correctly awarded summary judgment to the defense.

The court framed its choice of the recklessness standard as a problem in duty.  Duty in tort law is determined "by reference to existing social values and customs and appropriate social policy," the court quoted precedent.  This point is significant for reasons related to the deeper mechanics of tort law.  Without diving into the problem here, it will suffice to say that the interrelationship of duty and fault standards sometimes matters, especially when a change in the relevant law occurs, whether through common law evolution or legislative enactment.

Co-defendant Suffolk University also won summary judgment.  The players had signed waivers of university liability in negligence, and the evidence failed to support gross negligence or recklessness in the coach's and university's supervision of the softball practice.

Superior Court Decision

In affirming, the Appeals Court opinion described the Superior Court's application of recklessness doctrine as "thoughtful."  That appraisal prompted me to seek a copy of the trial court opinion.

Regrettably, Massachusetts is a jurisdiction that thrives on secrecy in trial court records.  The Superior Court for Suffolk County, which includes the metropolis of Boston, puts dockets online, and the interface looks like the same software used by my home bar jurisdiction of Washington, D.C.  But links to document images, which D.C. has offered for a few years, are not available from the Massachusetts system.  Given the state of technology in the courts and in the country, I can attribute this omission only to willful obscurity.

Graciously, attorney Robert B. Smith (LinkedIn, Twitter), Demoura|Smith LLP, who represented Suffolk University softball head coach Jaclyn Davis, shared with me a copy of the memorandum decision in the Superior Court.  The court wrote:

[Defendant-player] Ball argues that because Brandt's injury occurred while she and Brandt were participating in an athletic event, she may only be liable for conduct that was willful, wanton, or reckless. Ball contends that she is entitled to summary judgment because Brandt has no reasonable expectation of proving her conduct was willful, wanton, or reckless. The court agrees.

"Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players' consent." Gauvin v. Clark, 404 Mass. 450, 454 (1989). "The courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition." Id. Therefore, "a participant in an athletic event can be liable to another participant only when his or her actions amount to a willful, wanton, or reckless disregard for the safety of the other participant." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000) [affirming summary judgment for defendant in golf-club-to-head case].

Brandt argues that the present case is distinguishable from those requiring a showing of willful, wanton, or reckless conduct because her injury was not caused by an opponent during a competition. However, the court declines to construe the broad language of the controlling cases in a manner that excludes Brandt's claim from their purview. Members of the same athletic team participating in a team practice are no less "participant[s] in an athletic event" than members of opposing teams during a game. [Cf.] Dugan v. Thayer Academy, [32 Mass. L. Rep. 657] (Mass. Super. Ct. 2015) (willful, wanton, or reckless standard did not apply where alleged negligence occurred before and after, but not during, athletic event [field hockey]). Accordingly, the willful, wanton, or reckless standard of care applies to Brandt's claim against Ball.

The appellate case is Brandt v. Davis, No. 19-P-1189 (Mass. App. Ct. Nov. 2, 2020).  Justice Joseph M. Ditkoff wrote the opinion for a unanimous panel that also comprised Justices Wolohojian and Maldonado.  The case below was Brandt v. Davis, No. 2017-00641-B (Mass. Super. Ct. Suffolk County Apr. 16, 2019).  Presiding in the Superior Court was Justice Mark C. Gildea, an alumnus of Suffolk Law.

Peace, power at stake in elections around the world

Pres. Ouattara
(s t CC BY 2.0)

With the U.S. election looming, it's easy to miss crucial elections going on elsewhere in the world, such as Ivory Coast and Moldova, with potential ramifications for global peace.

Votes are being counted now in the Ivory Coast presidential election.  Incumbent Alassane Ouattara is hoping for a third term despite vigorous opposition.  A 78-year-old economist, Ouattara has been president since 2011, after the disputed 2010 election resulted in civil war.  The Ivory Coast constitution limits a president to two terms, but the Ouattara side claims that a constitutional revision in 2016 reset the term clock.

The Sahel
(Munion CC BY-SA 3.0)

An especially sensitive issue in the West African context, the dispute over term limits gives Ouattara's run an uncomfortable overtone of authoritarianism.  Ivory Coast is a key commercial player in West Africa, so stability or instability there ripples throughout the region.  One way or the other, the influence of Ivory Coast's outcome could be especially impactful as Mali, Burkina Faso, Niger, and western Nigeria all struggle to get a grip on lawlessness and violence in the western Sahel.

Frmr. P.M. Sandu
(Accent TV 2015 CC BY 3.0)

Meanwhile, voters are at the polls today in Moldova to choose between starkly different visions for the country's future.  Former socialist party leader Igor Dodon, president since 2016, faces former prime minister Maia Sandu in the country's fourth election since 1991 independence.  Dodon carries the endorsement of Russian President Vladimir Putin and resolves to look eastward for Moldova's future.  Sandu thinks the best hope to pull Moldova out of chronic economic stagnation lies westward, in the European model of development.  

Pres. Dodon
(Russian Pres. Press & Info. Ofc. CC BY 3.0)

I wrote last year about my visit to the "breakaway state" of Transnistria, which embodies the depth of divide over Moldova's future.  Yet so much more is at stake; Moldova stands as a bellwether for the region, indicative of future European or Russian influence.  And with Brexit occurring on Europe's opposite border, the continental union's prospects for eastern growth might speak to the future of the union itself.

Both elections, in Ivory Coast and Moldova, are plagued with reports and denials of poll tampering and improper influence over voters.  And people in both countries fear for the peace in the wake of an outcome favoring any side.

Protestors in Algiers, March 2019
(Khirani Said CC BY-SA 4.0)

Even these elections are not the only ones in the world right now.  The "Georgian Dream" party looks to have won third-term control of Georgia's parliament, lengthening a long-term one-party rule there that opponents say has failed to deliver economic prosperity for working people.  And today, voters in Algeria, where I also visited in 2019, opine on anti-corruption constitutional reforms hoped to quell protests that persisted after the 2019 election of presidential challenger Abdelmadjid Tebboune failed to deliver the prompt changes that the street wanted.

The American election is only one among many in the world this fall in which prosperity and peace might hang in the balance.  I'm hoping that whatever happens here on November 3, we model order and rationality.

Legal scholars overlook scholarship about state FOIA, but dedicated academics toil for state transparency

Professor Robert Steinbuch and I aim to draw attention to the undersung work of state-law transparency  scholars through our recent publication in the Rutgers Law Record.  Here is the introductory paragraph.

We have read with interest Christina Koningisor’s publication, Transparency Deserts. While there is much to be lauded in the work – all access advocates would like to see more scholarship and publicity about the importance of transparency and accountability – we are disheartened by the article’s failure to recognize the extant vibrant body of scholarship and activism in state freedom of information law.

[¶] We, moreover, find this omission characteristic of a broader ignorance in legal academia of the sweat and toil of legal scholars, scholar-practitioners, and interdisciplinary academics who analyze and advocate for state transparency laws. This blind spot particularly manifests, unfortunately, among those at elite (typically coastal) law schools, who generally contribute vitally to the literature of the undoubtedly important federal transparency regime. These federal freedom-of-information scholars too often neglect the critical importance of state transparency laws – as well as state-transparency legal academics.

[¶] Quite in contrast, state-law access advocates generally acknowledge the value of federal statutory analogs, often referencing federal norms and practices comparatively, while, nonetheless, working upon the apt assumption that state access laws, en masse, have a greater day-to-day impact in improving Americans’ lives and in enhancing democratic accountability in America than does the federal Freedom of Information Act. Koningisor’s article evidences this disappointing tension. 

The publication is Transparency Blind Spot: A Response to Transparency Deserts, 48 Rutgers L. Rec. 1 (2020).  The publication is available for download from SSRN.  

Christina Koningisor, author of the referenced Transparency Deserts, kindly responded on the FOI listserv and gave me permission to share her thoughts.  Included is a link to her ongoing work.  Professor Steinbuch and I could not be happier to engage in a dialog that educates scholars and the public on the importance of state FOIA.

[T]hank you to Rick and Rob for taking the time to so thoughtfully respond to my piece. I sincerely appreciate it. And I take your points of criticism. The article certainly could have benefited from drawing more upon the excellent state-level scholarship that you cite in your response to my piece. I will also be sure, moving forward, to draw more heavily from the accomplished work being done by communications and journalism scholars. The point that I meant to make in my article, and which I should have stated more clearly, is that there is less overarching scholarship on public records laws across the fifty states. Of course, there are excellent state-by-state studies and critiques, some of which I cite in my piece, and many of which I do not, and which you have helpfully flagged in your response. But I was more interested in the work that has been done looking at the state of these laws as a whole. At this level, we can begin to make generalizations about what is working and what is not that are more difficult to observe when focusing solely on a single state. Rick and Rob's response seems to suggest that such surveys are inherently flawed, because they will inevitably be underinclusive and cannot possibly account for the variation across the fifty state legal regimes and the hundreds of thousands of state and local government entities. I agree—I explicitly make this point, and acknowledge the limitations of tackling such a diverse array of laws and government entities in my article's methodology section. But I believe it is nonetheless important to take stock of how these laws operate nationwide, so long as we are forthright and honest about the limitations of any fifty-state survey. I think there is value in and space in the literature for both state-by-state deep-dives and overarching cross-state examinations. Rick and Rob do highlight, in their appendix, some of the broader cross-state scholarship on state public records law that I failed to cite, most of which are published in communications and journalism journals. Again, I concede this point and agree that I should become more familiar with this interdisciplinary work.

I also want to note briefly that my Article reaches a somewhat more nuanced conclusion than transparency is simply worse at the state and local level. I do stress the significant advantages that many state public records laws have over FOIA, including the more rapid response times, the absence of a national security apparatus and classification process impeding access, and, often, the greater accessibility of state and local records officers, among other advantages. I also note that many of these state laws suffer drawbacks when compared to FOIA: many do not have easy and relatively cheap administrative-level appeal options, for example, and the costs of records production at the state and local level can often be prohibitive. Further, although there is no national security secrecy apparatus at the state and local level, it is often exceptionally difficult to obtain records from state and local law enforcement agencies. The piece was in fact inspired by my experiences working as a lawyer at The New York Times, where, in the process of assisting reporters with their federal, state, and local records requests across the country (not just in the coastal states!), I noticed that local police departments were often the most difficult agencies to obtain records from, in some ways even more secretive and difficult to work with than even the federal intelligence agencies. But more critically, the article emphasizes that when these state laws do fail—and I think we can all agree that they sometimes do—there are fewer alternative routes for information to come to light. These transparency failures are exacerbated by broader structural features of state and local government, including reduced external checks from local media and civil society organizations, and reduced intra-governmental checks between the various branches of government. This is of course not to say that every law fails in every instance, or that there aren't many excellent civil society organizations in many places doing critical work on government transparency and oversight. Of course there are abundant examples of such laudable advocacy efforts. But there are also many places across the country where local media institutions have disappeared, civil society organizations are in dire financial straits, and intra-governmental checks are muted. The nation's access laws are remarkably diverse, and contain myriad examples of both transparency failures and successes.

Once again, I very much appreciate these thoughtful and incisive responses to my piece, and I hope to continue this conversation moving forward. I have a new state transparency law-related article, [Secrecy Creep,] forthcoming in the University of Pennsylvania Law Review. It is still quite early in the editing process, so I would love to hear any feedback and suggestions ....