Thursday, July 25, 2024

1901: Disgruntled laborer shoots, kills President

Assassination of President McKinley by T. Dart Walker, c. 1905
Library of Congress

In Buffalo, New York, this week, I felt obliged by recent events to seek out the place where Leon Czolgosz fatally shot President William McKinley in 1901.

Contemplating Thomas Crooks's still unknown motive for shooting President Donald Trump in Pennsylvania on July 13, I thought about something Bill O'Reilly told Jon Stewart on The Daily Show last week: that every U.S. presidential assassin has been mentally ill.

I wasn't sure about that. After some looking into it, I suppose the accuracy of the assertion depends on what one means by mentally ill.

One could argue that anyone with ambiguous motive to murder a President is mentally unwell. Indeed, an "insanity" argument was made in the criminal defense of Czolgosz for the 1901 shooting of McKinley. The defense hardly slowed the conviction. Inside of two months from the shooting, Czolgosz was executed.

Site of President McKinley assassination, Buffalo, N.Y., 2024
RJ Peltz-Steele CC BY-NC-SA 4.0
So in informal terms, O'Reilly probably is right. In clinical terms, we don't have enough data to be sure of the mental state or diagnosis of past assassins. Experts have disagreed about Czolgosz. Then there's the legal concept of "insanity," having to do with capacity to differentiate right from wrong. Czolgosz knew what he was doing; I don't think O'Reilly meant to say otherwise.

Czolgosz was attracted to radical socialism and then anarchism because he lost his job in an economic crash when he was 20—the same age as Crooks when his life ended. Czolgosz couldn't find consistent work amid the labor turmoil of the ensuing depression in the 1890s. Born into a Polish-immigrant family, he became convinced that the American economic system was rigged to favor the establishment over the working class. Hm.

Czolgosz learned that socialists and anarchists in Europe were struggling with similarly entrenched economic inequality as royals endeavored to maintain their traditional grip on social order. European anarchists had resorted to assassination as a means to express their displeasure and spark reform. However, bolstering O'Reilly's theory on Czolgosz's mental state, even American socialists and anarchists raised, no metaphorical pun intended, red flags over Czolgosz.

Pan-American Exposition, by Oscar A. Simon & Bro., 1901
Library of Congress
In his second term as President, McKinley was in Buffalo for the Pan-American Exposition, a kind of world's fair. He was riding a wave of national optimism upon consolidation of American power in the hemisphere. It was in McKinley's first term that the United States seized Puerto Rico, Guam, and the Philippines from Spain after substantially prevailing in the Spanish-American War. 

McKinley was keen to attend the exposition, because he saw political promise in associating himself with American prosperity and invention. The 342-acre exposition featured the latest engines, the hydroelectric power of nearby Niagara Falls, and an "Electric Tower" framed by the newly proliferating magic of light bulbs. 

No doubt McKinley's exposition strategy galled Czolgosz. In a morbid irony, when Czolgosz was executed in October 1901, it was by electric chair.

Reenactment in Porter's Execution of Czolgosz (1901).
Library of Congress
Like President Trump, McKinley liked being up close and in person with his public, despite the exposure to risk. McKinley's security staff, of course, knew of the anarchist assassinations in Europe and the organization of anarchism in the United States. McKinley's top adviser twice canceled the appearance of the President at the exposition's Temple of Music, for fear he could not be protected there. McKinley overruled the cancellations. That's where he was shot.

Like Crooks, Czolgosz intended to shoot the President while he was giving a speech, the day before the Temple of Music event. But the crowd at the speech was too dense, and Czolgosz didn't think he could make the shot. So instead, he approached the President in a receiving line at the Temple of Music and shot him at close range. Czolgosz's first shot only grazed the President. The second struck McKinley in the abdomen and resulted in death two days later.

Fordham Drive, Buffalo, N.Y., 2024
RJ Peltz-Steele CC BY-NC-SA 4.0
Like Crooks, Czolgosz was recognized as a potential threat. But security blunders—for example, he should not have been permitted in the receiving line with the closed and covered hand that concealed a gun—let him reach the President. After the shooting, he was tackled by a heroic but later undersung African-American man standing nearby, then pummeled by security staff. Czolgosz might have been killed right then, but McKinley himself called off the beating.

Many Americans no doubt saw the assassination of McKinley as signaling a tragic inevitability of the times. President Lincoln had been assassinated in 1865, and President Garfield in 1881. Director Edwin S. Porter made a creepy, one-minute silent film for the Thomas Edison company in 1901 about the assassinations; The Martyred Presidents is available online at the Library of Congress. Present in Buffalo to film the exposition and yet early in his prolific career, Porter also made a four-minute film featuring a reenactment of Czolgosz's execution.

President Roosevelt at the Wilcox House, 2024.
RJ Peltz-Steele CC BY-NC-SA 4.0
Another assassination attempt did follow, injuring President Theodore Roosevelt in 1912. Roosevelt had been inaugurated in Buffalo in succession of McKinley in 1901. The location of the hasty inauguration, the then-private Ansley Wilcox House, is now a National Historic Site in Buffalo; I stopped by there, too.

Me'n'T.R. meet inside the Wilcox House.
RJ Peltz-Steele CC BY-NC-SA 4.0
Roosevelt's survival seemed to break the generational cycle, at least until the assassination of President John F. Kennedy in 1963. A more entertaining explanation for the abatement of presidential assassinations is featured in Sarah Vowell's characteristically superb book Assassination Vacation (2006): the Robert Todd Lincoln "jinx." The eldest son of President Abraham Lincoln was present at the assassinations of his father, President James Garfield, and President McKinley, but not for the attack on T.R.

The Pan-American Exposition is long gone. The land where the incident occurred became a residential development. A small plaque and garden, and a flagpole and flag in the roadway median of Fordham Drive in Buffalo mark the approximate location of the fatal shooting in 1901.

A nearby high school is named for McKinley. Buffalo, N.Y., 2024.
RJ Peltz-Steele CC BY-NC-SA 4.0

Monday, June 24, 2024

Greenland opens new capital airport terminal, hopes to boost tourism, increase economic autonomy

I was among the first passengers at the new Nuuk terminal today.
Today a new international airport terminal opened at Nuuk, the capital of Greenland, and I was among its first passengers. (All photos by RJ Peltz-Steele CC BY-NC-SA 4.0.)

A couple of days ago I wrote about Greenland's autonomy from Denmark, observing that tourism and fisheries, at present levels, might not be enough to sustain the economy of an independent Greenland, notwithstanding popular support for the proposition. The new terminal and runways at Nuuk, co-located with the older facility, are a calculated measure to amp up tourism and ween off Greenland of dependence on Danish aid.

The old Nuuk GOH terminal, closed today, is adjacent to the new.
As I mentioned in my previous post, Greenland infrastructure is still marked by U.S. defensive developments during World War II. The Kingdom of Denmark was occupied by the Nazis and turned over the protection of Greenland to the United States. Part of that American legacy is the country's international airport at Kangerlussuaq, a village deep in the fjords north of Nuuk and well inland, eastward, of second-city Sisimiut. 

Constructed as a military air base in 1941, Kangerlussuaq airport was a strategic refueling point. It was therefore equipped with a runway that could handle large aircraft. After the war, and for decades since, Kangerlussuaq's capacity made it the international hub for Air Greenland.

A larger-than-most Air Greenland plane prepares to fly from Kangerlussuaq to Copenhagen.

Landing at Nuuk is not for the faint of heart.
But Kangerlussuaq makes no sense for civilian use, much less for tourism. Only about 500 people live there, compared with about 17,500 in Nuuk. So intercontinental passengers traveling to or from Nuuk, such as me today, must also make the short hop between Nuuk and Kangerlussuaq. With limited flights in and out of Greenland to begin with, the cost and inconvenience of an added leg is an impediment to the tourism market that Greenland sorely wishes to develop.

As well, the old Nuuk runway was not designed for volume or large aircraft. Because of surrounding mountains and frequent cloud cover, the approach is notoriously challenging for pilots. In fact, when I landed at Nuuk a couple of days ago on a domestic flight, my Air Greenland pilot aborted landing northbound in the dense fog. We circled round and sailed alongside snowy mountain peaks—a bit unnerving—to land in the clearer southbound direction.

New Nuuk's first guests got gift bags.
Today's opening at Nuuk is a soft one, of the terminal only. The bigger, new runways are still under construction, the old runway still in use. Intercontinental passengers such as me still must fly to Kangerlussuaq. That will change when the new Nuuk airport becomes fully operational; plans aim for later this year. In fact, the runway at Kangerlussuaq has become degraded by subsiding permafrost, and the plan is to scuttle that airport for non-military use.

The great hall of the new Nuuk airport is not yet ready for prime time. A plastic sheet covers the escalator, and limited strips of seating equipped with electrical outlets are not yet plugged in to anything. There are not yet any concessions; free coffee and breads were on offer this morning.

For the time being, all roads lead to Kangerlussuaq.
The place looks promising. Warmly enthusiastic representatives this morning awarded the terminal's first 200 passengers "Greenland Airports" "goodie bags" containing travel-size containers and "Greenland airports" luggage tags.

For now, Nuuk airport will retain its IATA code, GOH, which was derived from the Danish name for Nuuk: Godthåb, or "Good Hope."

UPDATE, Aug. 5, 2024: One of my favorite YouTube channels, the B1M, has posted an excellent video with more detail and context than I had about the expansion of Greenland's airports, albeit with production dating to 2023. If you want to learn more, I recommend B1M, How to Build an Arctic Airport, YouTube (posted July 24, 2024).
The Nuuk tarmac at GOH: new runways lie beyond the old, where a plane taxis.

Air Greenland operates a diverse fleet of planes and helicopters to connect the largely roadless country.

Saturday, June 22, 2024

Greenland celebrates 'National Day,' ever growing autonomy, but dependence on Danish aid persists

Greenland flags celebrate National Day, Qaqortoq.
Yesterday I was in Qaqortoq, Greenland, for Greenland National Day, June 21. (All photos by RJ Peltz-Steele CC BY-NC-SA 4.0.)

Greenland is a territory of the Kingdom of Denmark. But a visitor might miss that: Greenland flags fly in all parts, and Danish ones are few. Signs increasingly employ the Greenlandic language—which Google Translate does not yet have—without a Danish translation. And though the currency remains the Danish krone, electronic transactions render notes seldom seen.

Americans built a radio station at Narsaq Point. The pictured building
is long abandoned, but the station still broadcasts.
From 1814 to World War II, Greenland was under Danish control, but not formally a part of the kingdom. When Denmark was occupied by the Nazis in World War II, the displaced Danish government signed Greenland over to the protection of the United States. Disused U.S. military installations still dot landscapes. With a new constitution for Denmark after the war, in 1953, Greenland formally became part of the kingdom.

A home rule initiative in 1979 afforded Greenland greater autonomy, but left Denmark in control of foreign affairs, banking, and the legal system. With 75% approval in a 2008 referendum, Greenland claimed further autonomy over its legal system and law enforcement. On National Day in 2009, the official language of Greenland was changed from Danish to Greenlandic.

Qaqortoq

The self-rule law of 2009 allows Greenlanders to declare full independence upon another referendum. And the Danish government has suggested that Greenlanders ought to decide one way or the other. Polls consistently suggest a comfortable majority of Greenlandic support for independence. However, it depends how one asks the question. 

As a county of Denmark, Greenland receives an annual block grant of about US$511 million, which, according to the International Trade Administration, accounts for more than half of Greenland's public budget and 20% of GDP. Greenlandic support for autonomy polls poorly if the question is qualified by a risk to the standard of living. It seems doubtful that the presently leading industries of fisheries and tourism can sustain Greenland's economy without Danish aid.

Qaqortoq "then and now" (image at left from Qaqortoq Museum)






National Day musicians at Hotel Qaqortoq
"Loading," a Nuuk mural by Greenlander Inuk Højgaard,
comments on economic migration from villages to city.

Tourism in the Nuuk fjords, aboard the ferry Sarfaq Ittuk

Tuesday, May 28, 2024

Law class visits Constitutional Court of Portugal

Law students and Dean Sam Panarella (left)
visit the Constitutional Court.
© RJ Peltz-Steele

Since last week, ten talented U.S. law students have been making the most of Lisbon, Portugal, in UMass Law's first class abroad.

In our maiden venture, we are studying comparative data protection law in the United States, European Union, and Portugal. We have been treated to superb lectures by law faculty of our partner institution, the Universidade Católica Portuguesa (UCP).

Today, a UCP faculty member welcomed us to the home of the Portugal Constitutional Court, where he also serves as Vice-President. Justice Gonçalo de Almeida Ribeiro spoke to us there about constitutional conflict in the EU legal system.

The justice had instructed students to prepare by reading Digital Rights Ireland, a 2014 case in the EU Court of Justice (CJEU), and the "Metadata Ruling," a 2019 decision of the Constitutional Court of Portugal. In Digital Rights, the CJEU had struck down an EU directive on data retention as inconsistent with fundamental rights under the European Charter. 

Justice Gonçalo de Almeida Ribeiro addresses law students.
RJ Peltz-Steele CC BY-NC-SA 4.0
The case marked a recognition of the CJEU's own power of judicial review. But it also raised a confounding question. The CJEU lacks authority to review national legislation directly. So what would become of national, domestic laws that had been enacted already pursuant to the stricken EU directive? 

The Portuguese Constitutional Court in Metadata construed Portuguese constitutional law in harmony with the EU Charter to strike down as well the problematic provisions of Portuguese law that had been enacted pursuant to the directive. The responses of the Portuguese and other national constitutional courts to Digital Rights thus marked a pivotal point in the evolution of the EU's peculiar brand of "federalism" (to jam a square peg into a round word).

All of the law students in the class deserve praise for being good-natured and flexible in the face of a fluctuating itinerary for this fledgling Portugal project. They all assert, nonetheless, that they are here first and foremost for this remarkable learning opportunity, and not for myriad other benefits, for example, to see Taylor Swift at Benfica Stadium at what are by U.S. standards bargain ticket prices. That was icing.

UMass law students with me at Universidade Católica Portuguesa
© Prof. Sofia Pinto (licensed)
 

Friday, May 24, 2024

Global Law Classroom unites law students online

Law faculty around the world are organizing the Global Law Classroom to debut in the fall semester of 2024.

Global Law Classroom (GLC) brings together law students from participating countries via Zoom to study and discuss contemporary issues in comparative and international law. GLC started as a project of the European Legal Practice Integrated Studies program (ELPIS), under the EU Erasmus umbrella. 

The program was conceived and is coordinated by Melanie Reid, associate dean of faculty at the Duncan School of Law, Lincoln Memorial University. I've participated on the plenary faculty and as contributing faculty on the environmental law team and human rights team, developing academic modules in those areas. My students in three-credit-hour Comparative Law in the fall will participate in the GLC for one-third of their class-hours.

Besides human rights and environmental law, modules include criminal law, cybersecurity, anti-discrimination, and artificial intelligence, as well as an introduction to global lawyering and a negotiation exercise on climate risks.

Thursday, May 9, 2024

Conference on workplace mobbing posts presenters

Niagara Falls, N.Y.
Carol M. Highsmith's America, Library of Congress,
Prints and Photographs Division, via Picryl
The Niagara Conference on Workplace Mobbing is taking shape.

Read more about the interdisciplinary conference at Niagara University, July 22-24, 2024, in the February announcement.  The conference website now features information about presenters and their work. Presenters include:

Dr. Ann Marie Flynn
Dr. Caroline Crawford
Dr. Emily Godbey
Dr. Eve Seguin
Gail Pursell Elliott
Dr. Janice Harper
Dr. Joseph Donnermeyer
Dr. Karen Moustafa Leonard
Dr. Kenneth Westhues
Dr. Peter Wylie
Prof. Richard Peltz-Steele
Prof. Robert Ashford

Dr. Rebecca Pearson
Dr. Qingli Meng
Dr. Walter DeKeseredy

As well, from the conference website:

Host of the conference is Niagara University, which dates from 1856, and which is meeting the challenges of the present century with extraordinary success. Its president, Rev. Dr. James Maher (theology), and its provost, Dr. Timothy Ireland (criminology), will welcome conference participants.

Among sponsors of this conference is the Edwin Mellen Press, which has published more books on mobbing than any other publisher. Professor Herbert Richardson (theology), Its founder and chief editor, now in his 93rd year, will address the conference on cybermobbing. In 1994, he was the subject of what is still the most famous case of academic dismissal in Canadian history. Dr. Eva Kort will also be on hand representing the Edwin Mellen Press.

A book by the late Joel Inbody, his factual analysis of being mobbed as a graduate student at the University of Massachusetts, will be released posthumously at the conference. His mother, New York educator Kimberly Lewis, will tell the story behind the book, and chronicle the events that led to Joel’s being slain by a gang of six law enforcement officers in New Mexico, in 2023.

Also sponsoring the conference is the Society of Socio-Economists. Its founder and leading light, Professor Robert Ashford, Professor of Law at the University of Syracuse, arranged for a session on academic mobbing way back in 2010, at the Annual Meeting of the Association of American Law Schools. Professor Ashford will address the conference on "Mobbing and Academic Freedom."

Registration remains open until July 1, or 100 participants, whichever comes first.  If you or a colleague wish to present as well as attend but are finding out about the conference only now, after the proposal deadline, reach out to Dr. Meng via the conference website to inquire.

Thursday, April 18, 2024

My writing is 'not very good,' and other reasons you can't get ahead in our not-really-a meritocracy

Pxhere CC0
A purported mentor once told me that probably I couldn't find a job in academics because my "writing is not very good."

'Tis the season when the law professor should be writing exams, yet is inundated and distracted by requests for recommendation letters to aid students on the career track. The distraction has caused me to ponder the futility of it all. Aside from the fact that my laboriously and meticulously drafted letters scarcely will be read, I'm saddened by how little a person can do to move the needle on ultimate potential in our supposed meritocracy.

In the 20-aughts, I was looking for my second job in academics, hoping to leave Arkansas and the curse of flyover country. My job search took five years. I lost count of how many applications I put in. It had to be more than there are law schools in the United States.

At some point, through a program I won't identify, as not to identify the person, I was paired with a mentor, an academic at a U.S. News "top 10" law school. After a couple of telephone counselings in which he told me nothing I did not know already, he suggested that maybe I needed to accept that I could not score a job because my "writing is not very good."

That was hurtful. Not because it wasn't a fair consideration to put on the table; it was. It was hurtful because it was his go-to conclusion, and rather the end point of the short arc that was his mentorship. There were countless other explanations for my struggle in the job market. He blew past all of them to rest on one: I suck.

Implicit in the suggestion was that he was at a top-10 school because he was so much better at the job than I. That's what hurt. And as I've matured in my career, I've come to realize how wrong he was.

I have a lot of experience now on the hiring side of hiring, almost three decades, at least in legal academics. And I've worked out a formula, though sometimes I tweak the apportionment, I feel like about describes the factors at play in getting a job, certainly in legal academics, but maybe anywhere:  

  • 60% privileges; 
  • 30% right-place-right-time; and 
  • 10% merit.

I'm not one of these "privilege walk" organizers who use loaded questions to make people feel guilty about socioeconomic advantages, and then to feel good about having felt guilty, and then relish telling everyone how privileged I now know I am, without actually doing anything to make the world better. But I do try to be conscious of privileges, especially the ones that I have and did nothing to earn.

I did not start at the bottom of the ladder. That I'm not a person of color, thus not subject to unfair biases manifesting as implicit assumptions about aptitude and potential, nor followed by security in stores and distrusting of police; that I went to K12 in reputable suburban school districts with dedicated teachers and was a child of two parents with college degrees: these factors have worked immeasurable benefits in my life, no thanks to anything I did.

I didn't start at the top, either. My divorced, usually single parents were college educated thanks to community-college access and the military. My family was the typical penniless-20th-century-immigrant story, and my parents and grandparents were victimized by ethnic discrimination with real socioeconomic consequences. I was able to go from public school to a first-rate undergrad with mostly private-schooled kids only because I earned a full scholarship.

On the inside of hiring in academics—I can tell another time cringe-worthy stories of before academics—I have seen it all, and candidate merit is only weakly indicative of outcome.

Because of the prevalence of liberal politics in academics—I do not suggest that preferences ordinarily run in these directions in the job market in general—I had a dean who announced the race (not mine) and gender (not mine) of an intended hire at the beginning of the search process; and I've had colleagues announce, also in advance of a search, that they would vote against any candidate of a certain race (mine) or gender (mine). I've likewise heard colleagues openly favor or disfavor candidates based on perceived sexual orientation (minority favored) and religion (belief disfavored). So to pretend that these factors are not in play, whether or not they are verbalized, would be willfully ignorant.

But race, gender, etc., are easy targets to exemplify pernicious discrimination. There are other factors that are more subtle, yet equally well effect socioeconomic exclusion, and thus indirectly race discrimination. And these factors are embraced by persons both liberally and conservatively minded.

When I was at a "tier 3" law school looking for a job, a colleague at a "tier 2" school—who knew I was looking for a job—asked me whether I might recommend anyone—not me—to fill an open position at her school. I was disqualified presumptively for the open position, because I did not do a judicial clerkship after law school. My colleague iterated this hiring expectation as if it were a self-evident sine qua non. She assumed I knew my place, and I was in it. One does not advance to tier 2 without a clerkship on the resume. "We prefer people who've clerked at the Supreme Court," she said breezily.

I didn't do a judicial clerkship after law school for various reasons. A big reason was that I was sick over the profound debt I had incurred paying for law school 100% with loans. 

I had turned down full scholarships at two other law schools to pay full freight at a top 10, because I hoped the top 10 would open doors the others could not. I could not see, after law school, how I could take a job in which I would struggle to make monthly payments, or worse, postpone them, with interest accruing. For the same reason, I didn't go back to journalism after law school, which had been my plan. I also did not have anyone in law or legal academics to advise me on the value of a clerkship—an opportunity, perversely, that one never has again—for my later career.

I was the beneficiary of many privileges at that time in life. Not among them was the luxury of choosing a clerkship or any job because it would be a smart resume builder, rather than because it would pay my bills. Not among them was having anyone to model a career in legal academics, or tell me what to do to get there. And yet, with no undergrad debt, I already was much better off than most of the students I teach now. I did not yet have a family to take care of. I was able to put every spare dime from my attorney earnings into paying off my debt.

My top-10 choice paid off some, because I would not otherwise have scored my first job in academics. A key faculty player in hiring had gone to the same law school I did. The hiring school was in urgent need of an immediate start, and I was willing to quit my job and move halfway across the country at Christmas. The hiring school was especially vexed over poor student writing skills, and I was a former journalist and capable copy editor. There it is: 60% privileges, 30% right-place-right-time, and 10% merit.

Yet I would be limited thenceforth by not having clerked, and by other, similar factors. I never volunteered abroad, as many aspiring academics do. I wanted to—because of my family ties, a passport was a privilege I did have—but, again, I had to work 50 weeks per year to pay on my debt.

At my attorney job, I had little to no mentorship; it was all about billable hours. I had no role models to show me how to navigate in that world. I had no business contacts; no matter how hard I worked, I never would have made partner. The media lawyer I worked for when I started left for an in-house position after a year, and I was reassigned to the grind of mass-tort discovery.

In my first academic post, I had little to no mentorship in my professional development at my "tier 3" school. I had not even a scholarship requirement for my first years, when I was a contract instructor, not tenure track. I did not know to publish, what to publish, or where. I wrote and published only because I wanted to, about whatever I wanted. It was the law-professor equivalent of being a journalist; if you have writing in your heart, it's a compulsion.

I did not know that the choices I was making, from starting as an instructor rather than an assistant professor, to the lack of an overarching research agenda, to everything from subject matter to placement strategy to the titles of my articles: all was part of a portfolio that I had only one chance to do right. I didn't.

Sometimes a student comes to me and expresses a desire for an academic career. My heart breaks. I have a rehearsed presentation to explain, as gently as I can, that the student already is behind on that goal: by definition, as we are having the conversation at a "tier 4," or bottom tier, law school. An academic career probably is foreclosed because of "poor" choices the student already has made unwittingly, such as having a family and living on a budget.

Mostly, the track is foreclosed by circumstances beyond the student's control: Urban childhood. Weak K12. No jobs for youth. No college counseling. Ailing parents. Delayed higher education. Being the wrong race, ethnicity, religion, or sexual orientation and identity for whatever is in fashion.

Even the brightest and most determined candidate cannot cause 10% merit to control the outcome.

The "mentor" I mentioned at the top: I take nothing away from his merit. But does he appreciate why he is where he is? Does he think that when he submits an article for publication, its merits are the principal driver of an offer? Does he think that when he submits a job application, his hard work is the principal driver of an invitation?

He's a white man who started adulthood before I and in the "Morning in America" Reagan heyday. I don't want to say what college he went to, but suffice to say, it's one you've heard of in connection with Presidents and Supreme Court Justices. Law school too. Maybe he was plucked from child labor in an Appalachian mine to be gifted with these opportunities, but odds are not. He then clerked for a federal appeals court, and then for the U.S. Supreme Court. He diversified the resume with a short stint abroad. He worked briefly in public and private sectors. He won a teaching fellowship in the top 10, and never worked lower: from there to tenure track, named professorship, center director, etc.

Brilliant bloke. 10%. 

But not that brilliant. 60% privileges, 30% right-place-right-time.

I think my writing is very good.

Monday, April 15, 2024

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

Quarry and asphalt manufacturing facility in England.
Richard Law via Wikimedia Commons GNU 1.2
An asphalt plant that residential neighbors blamed for burning eyes and sore throats is a public nuisance, the Massachusetts Appeals Court affirmed Friday.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 12, 2024

UMass Law inaugurates comparative law study abroad

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

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

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

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

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

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

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

Wednesday, April 3, 2024

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

Herman Melville boarded the Acushnet at New Bedford Harbor in 1841.
RJ Peltz-Steele, 2022, CC BY-NC-SA 4.0
From the Massachusetts Appeals Court today, a reminder that however far we've come, we've yet so far to go.

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

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

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