Big Law cowardice calls legal licensure into question

The WAMU podcast 1A put on an excellent show Monday on the White House threats against law firms.

The show featured Princeton University Professor Deborah Pearlstein, Politico reporter Josh Gerstein, and Elias Law Group Chair Marc Elias.

Highlights for me:

• Pearlstein questioned the ethics of the firms that have caved to Administration pressure. How can a client trust Paul Weiss to provide zealous representation, she asked, when the firm so readily caves to political pressure?
• Elias called the deals struck by Paul Weiss and Skadden, inter alia and respectively $40 million and $100 million payoffs in legal services, "cowardly" and "obscene" and questioned whether the practice of law should continue to be protected by the exclusivity of licensing.

Agreed and agreed. I suggest moreover that the weakness of the legal profession and its willingness to sell out for the bottom line has been the American way already for decades. That Big Law has locked down the profession and lobbies anti-competitively to keep it that way—thereby denying access to legal services, legal education, and legal careers to ordinary Americans, while building and bolstering an anti-democratic corporatocracy—is nothing new to those of us who toil away on the hamster wheels beneath the status ceiling.

It's simply Trump's shameless gambit that has exposed the rot.

In the less cowardly vein, Perkins Coie, WilmerHale (Court Listener), and Jenner & Block (Court Listener) are litigating against the executive orders targeting law firms. I anticipate signing on to an amicus brief of law professors in support of the plaintiff motion for summary judgment in the Perkins Coie matter in the U.S. District Court for the District of Columbia.

'No Other Land' scores with human story, mesmerizing cinematography, surprising cameos of law

A Palestinian-Israeli collaboration yielded the Academy Award-winning documentary No Other Land, which is well worth the price of admission.

No Other Land plays the Avon in Providence, R.I.
RJ Peltz-Steele CC BY-NC-SA 4.0

I disclaim: it was neither paroxysm of wokeism nor Oscar allure that drew me and my wife to an actual theater last weekend for No Other Land (2024) (IMDb). Rather, I was enticed by news that the film failed to secure mainstream distribution in the United States, for fear of protests, and, accordingly, that its debut at the independent O Cinema South Beach drew threats of retaliation.

I'm a sucker for a free speech story. That, and our favorite Indian restaurant is across the street from the independent Avon Cinema in Providence, Rhode Island. I did not expect No Other Land to live up to its Rotten Tomatoes perfect score. It did, and then some.

No Other Land is the product of four co-directors, Basel Adra, Hamdan Ballal, Yuval Abraham, and Rachel Szor. A Palestinian activist and Israeli journalist respectively, Adra and Abraham are featured in the film, which intimately depicts the slow battle between residents and the Israeli army over the villages of Masafer Yatta in the southern West Bank. The film covers 2019 to 2023, when Adra lived in Masafer Yatta and Abraham visited there to write about the army's destruction of homes in an effort to evict Palestinians from the land.

No Other Land does not try to relate other than the Palestinian side of the story. But it also doesn't try to hit you over the head as a polemic; I had been worried about investing 90 minutes in that vein. The beauty of the film—and it is beautiful, worth time in front of the big screen, despite the tragic subject matter—is in the depiction of human relationships in the face of profound adversity: within and between the families of Masafer Yatta, in how the Palestinians relate to Abraham as an outsider, and, at the heart of it, in the sometimes awkward but deepening friendship of Adra and Abraham.

Law figured in No Other Land in some surprising ways. On the face of it, the tragedy of Masafer Yatta was precipitated by Abu ‘Aram v. The Minister of Defense, a 2022 ruling of the Israeli Supreme Court, sitting as the High Court of Justice, green-lighting the eviction of Palestinian residents for the purported purpose of creating an Israeli military training zone. 

Notwithstanding realist accusations of naked partisanship, the court rested its ruling on the classification of the land, by prior agreement, as under Israeli security control. Civil society the world over decried the ruling as inconsistent with human rights law concerning occupied territories. For more, here's an informative commentary by Yaël Ronen, a law professor in Jerusalem, writing at the time for the West Point Lieber Institute's Articles of War.

Basel Adra and Yuval Abraham receive film award in Berlin.
Martin Kraft (photo.martinkraft.com) via Wikimedia Commons CC BY-SA 4.0

The law figured also into the story at the more intimate level. The film surfaced the fact, which I had not learned from any of the hype, that Adra trained as a lawyer, not as a filmmaker or journalist. Here is an exchange in the film between Adra and Abraham.

ABRAHAM: Nothing on mainstream news about the demolitions. As if it happened, but also, it never happened.

ADRA: We'll keep filming everything. And we have to think how to reach more people in different ways. That would be excellent I think.

ABRAHAM: Why are you on your phone all day?

ADRA: It's from stress. Stress, stress, stress.

ABRAHAM: You're afraid something will happen?

ADRA: Yes, but also I'm stressed because I have nothing to do.

ABRAHAM: What do you mean?

ADRA: I don't know.

ABRAHAM: What?

ADRA: What can I do besides being on my phone? Huh? I have nothing else, only my phone.

ABRAHAM: What would you like to do?

ADRA: Anything else.

ABRAHAM: But you studied law, can't you practice it?

ADRA: That's something I lost hope in. Students like me studied so hard for a law degree. But our economy is ruined. You can find work only in Israel.

ABRAHAM: What work?

ADRA: Construction. No other option. Like you never went to university. What do you think? If you were in my place, what would you think?

The scene captures the utter despair of Palestinians in Masafer Yatta. And at the same time, Adra smiles intermittently. His indomitable spirit is irresistibly charming.

The conversation is revealing, too, of a mesmerizing cinematographic device at work in No Other Land. Adra is on his phone a lot; the phone, in fact, or smartphone videography, almost becomes a character itself in the narrative.

There are two kinds of video in the film. First, there is smartphone video, often the very same clips that Adra and others upload to social media in the online battle of public relations playing out for the world. Second, there is the high-quality video of the movie camera.

Adra and other Palestinians, as well as Israeli soldiers and civilian authorities, are seen constantly wielding smartphone cameras. The film in fact is bookended with older personal video from Adra's childhood. In the conflict, Palestinians use their smartphones as witnesses, for example, announcing to a soldier, "I am filming," in an effort to deter violence. These videos bring raw and jarring urgency to the big screen.

At the same time, movie cameras never stop rolling, and for them, the fourth wall never breaks. When the smartphones are turned off, the movie cameras continue to capture the mundane but moving interludes that constitute life between exigencies: Adra left alone at night when Abraham drives off to the security of his home; the tears of a mother left to care for a dying son.

No Other Land is art and reality at once. It deserves its accolades, and it should be seen. If it tells only part of a story, so be it. It bears truths that must be reckoned with nonetheless if ever there can be a way forward in the Israeli-Palestinian conflict.

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Kadai chicken, Rupee Basmati Rice Lager, and chicken madras at Kabob and Curry, Providence, R.I.
RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying mouthwatering presentation

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Government used soccer tattoo, 'rock'n'roll salute' as evidence against Venezuelan deportee, lawyer asserts

According to his lawyer, a tattoo and a hand gesture are the sum of evidence against at least one Venezuelan man who was deported to the El Salvadoran gang prison among what the federal government has called "the worst of the worst."

Left: Real Madrid logo; right: artist conception.
Left: © Real Madrid CF, adapted in part by Coloring Pages for Toddlers;
here fair use. Right: Same crown with free clip art ball and Word lettering;
RJ Peltz-Steele CC0 with no claim to underlying works.

The face-off between the Trump administration and U.S. District Chief Judge James E. Boasberg over deportations has stoked strong suspicion that the enforcement action swept up men who pose no threat to the peace, have legitimate claims to refugee status, and now have been condemned wrongfully to imprisonment in El Salvador, a country foreign to them and their families.

The suspicion is not easily vindicated because the men are gone from the United States and inaccessible in El Salvador, and the evidence against them is secreted in the hands of the federal government. Yet one by one, stories are emerging that cast doubt on the official narrative. 

Immigration attorney Linette Tobin, a member of the D.C. Bar, has been making the media rounds to tell the story of one client, Jerce Reyes Barrios. Tobin told outlets, including NPR, that she has seen the evidence against Reyes Barrios (family photo via ABC News), and it comprises nothing other than a tattoo and social media images of a hand gesture, both with innocent explanations. 

Left: Horned hand. RJ Peltz-Steele with Google Gemini CC0
Right: ASL "I Love You." LiliCharlie via Wikimedia CC BY-SA 4.0

According to Tobin, Reyes Barrios is a 36-year-old professional soccer player and father of two who has a tattoo unrelated to any gang other than Spain's very legitimate and globally popular Real Madrid Club de Fútbol (RMCF). A variation on the RMCF logo, the tattoo pictures a crown atop a soccer ball and the word "Dios" (God), Tobin said.

The hand gesture pictured in social media, according to Tobin, is the "rock and roll salute." That gesture, known more widely as "the horned hand," became associated with heavy metal in the 1970s (more at Medium), then came into wider use in music culture. The gesture is sometimes interchanged, knowingly or unknowingly, with the ASL sign for "I love you" (literally, the letters I, L, and Y), which is similar but requires an extended thumb.

Tattoos imaged in 2024 Texas DPS presentation include these.
Public document; no indicated copyright notice.

Circulating online, a 2024 presentation by the Texas Department of Public Safety on the Venezuelan gang Tren de Aragua (more from NPR), to which the federal government alleges Reyes Barrios and other deportees belong, depicts tattoos borne by gang members. While some of the tattoos might be indicative of Tren de Aragua—images of trains, for example—most are not so specific, e.g., a rose, a clock, a star.  (More from NBC News.) Tren means "train," and Aragua is a Venezuelan state west of Caracas.

Also among the imaged tattoos are a crown, similar to the Real Madrid CF logo; the Nike "jumpman logo" with Michael Jordan's and LeBron James's number "23"; and the initials "HJ," said to abbreviate hijos (sons), under a crown ("king of kings"), meaning "sons of God." While gang members might bear such tattoos, they're hardly a way to determine gang affiliation.

In fact, of two of my own tattoos, one is a train—not because of criminal affiliation. Another is a variation on a cross that might suggest a football club or a historical war campaign, neither of which I'm championing. So I find this evidence against Reyes Barrios unsettling, especially insofar as it might be exemplary of the government's shallow scrutiny in countless other cases, too. 

I can only assume that when Tobin joined the D.C. Bar, she was admonished as strongly as I was never to lie. So I'm inclined to believe her, and thus to share Judge Boasberg's skepticism.

Update, Mar. 31, at 3 p.m.: Too late for Reyes Barrios and others, but I learned today that on Friday, the federal district court in Massachusetts granted a temporary restraining order against the removal of immigrants to unrelated third countries without due process, that is, notice and "meaningful" opportunity to raise safety concerns. The case is D.V.D. v. U.S. DHS (filed D. Mass. Mar. 25, 2025) (Court Listener).

In negligence claims over child welfare, bus fight, Mass. high court opines on qualified, sovereign immunity

Two immunity cases ended with different outcomes for public officials in the Massachusetts high court on two successive Fridays, and the cases illustrate different theories of immunity.

In a case decided on March 21, social workers with the Massachusetts Department of Children and Families (DCF) asserted qualified immunity in the death and severe injury of two children, each about two years old. The Supreme Judicial Court (SJC) considered the immunity analysis but decided ultimately that, immunity notwithstanding, the workers had not legally caused the harm the children suffered.

In a case decided March 14, the Massachusetts Bay Transportation Authority (MBTA) asserted sovereign immunity in the serious injury of a passenger who was beaten by a bus driver with known anger management issues. The SJC decided that the state agency was not entitled to sovereign immunity as codified by a provision protecting the state from liability for the acts of third parties.

Mass. DCF Worcester West Area Office
From Mass. DCF, purported © 2025
Commonwealth of Massachusetts, asserted fair use.

Qualified Immunity 

However much the state defendants prevailed in the first case, the court's recitation of the facts reveals a deeply disturbing record of irresponsibility on the part of DCF. A woman with four foster children was correctly suspected of having a live-in boyfriend with a record of an open armed robbery charge, three assault and battery charges, and multiple restraining orders. That would be prohibitive of foster placements were the facts confirmed, so DCF planned to monitor the home closely. For unknown reasons, officials dropped the ball, and inspections were too few and too infrequent.

The horrifying 2015 accident that took the life of one child and severely injured another occurred overnight when one of the children reached for "and adjusted the thermostat on an electric heater, which was on the wall above the crib, causing the children's room to overheat," the court wrote. Another child in the room died, and the child who manipulated the thermostat "was found to be in critical condition, suffering from respiratory failure, seizures, hyperthermia (a high temperature), and hypotension (low blood pressure)." The foster parent called 911, and the critically injured child was taken to the hospital. She survived but remains impaired, and her representatives were the plaintiffs in the instant case.

In a civil rights action under federal law, 42 U.S.C. § 1983, DCF officials claimed qualified immunity. The court coherently explained how the doctrine works generally and in this context:

Government officials are entitled to qualified immunity from § 1983 claims for damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known...." Littles v. Commissioner of Correction [Mass. 2005]. The determination of qualified immunity follows a two-part test:

"The first prong asks whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; the second prong asks whether that right was clearly established at the time of the defendant's alleged violation. [T]he second step, in turn, has two aspects. One aspect of the analysis focuses on the clarity of the law .... The other aspect focuses more concretely on the facts of the particular case and whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights" .... Penate v. Sullivan ... (1st Cir. 2023)....

Under the first prong, "'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience'" .... United States v. Salerno [U.S. 1987]. In the foster care context, courts apply one of two standards to determine whether government conduct is conscience-shocking. The first ... is the "deliberate indifference" standard.... Under this standard, a plaintiff must show that a government actor "exhibited deliberate indifference to a known injury, a known risk, or a specific duty." ....

Alternatively, under the second standard, ... a plaintiff must show that a State actor's professional decision constitutes such a "substantial departure from accepted professional judgment, practice, or standards" that the decision was not actually based on such judgment.

The court did not resolve the difference between the two standards, however, because the case was resolved on a different basis. Notwithstanding qualified immunity, a plaintiff in a civil rights case, just like in a state tort case, must prove proximate, or legal causation, and the plaintiffs here could not.

DCF misconduct might have been a scientific cause of the accident. However, the reason DCF was investigating the foster care home was the suspected presence of man, a co-caretaker, with a problematic criminal record. Scientific causation might be proved if the plaintiff could prove that proper DCF investigation would have resulted in the removal of the man from the home. But that flub did not legally cause the accident, the court opined, because the accessibility of the thermostat to the crib and the child's consequent tampering with it had nothing to do with the presence of the man in the home.

The conclusion is sound, though it leaves one to wonder whether there yet has been any reckoning at DCF, or among public officials and legislators if under-resourcing is to blame.

It would not have made any difference here, but, collaterally, it's worth noting that the very existence of qualified immunity as a defense to civil rights actions has been an issue in play in recent years. I explained in 2 Tortz: A Study of American Tort Law (Lulu 2024 rev. ed.):

Of unlikely constitutional compulsion, qualified immunity has come into question in recent years, especially amid high-profile incidents of police violence. Some states and localities have adopted statutes and ordinances limiting or eliminating qualified immunity for police. At the federal level, U.S. Supreme Court Justices Clarence Thomas and Sonia Sotomayor both have criticized qualified immunity. Justice Thomas criticized qualified immunity as unsupported by the text of the Constitution or statute, and Justice Sotomayor criticized the doctrine for failing to punish official misconduct. See N.S. v. Kansas City (U.S. 2023) (Sotomayor, J., dissenting from denial of certiorari); Hoggard v. Rhodes (U.S. 2021) (Thomas, J., respecting denial of certiorari); James v. Bartelt (U.S. 2021) (Sotomayor, J., dissenting from denial of certiorari); Baxter v. Bracey (U.S. 2020) (Thomas, J., dissenting from denial of certiorari). Nevertheless, thus far, the Court has upheld the doctrine. Since the murder of George Floyd by a police officer in Minneapolis in 2020, U.S. Rep. Ayanna Pressley (D-Mass.) and U.S. Sen. Ed Markey (D-Mass.) have persistently but unsuccessfully championed bills to abolish qualified immunity in § 1983 actions.

The first case is Gotay v. Creen (Mass. Mar. 21, 2025) (FindLaw). Justice Serge Georges, Jr. authored the unanimous opinion of six justices.

MBTA bus
Mass. Office of Travel & Tourism via Flickr CC BY-ND 2.0

Sovereign Immunity

A different theory of immunity, state sovereign immunity, animated the case decided a week earlier.

At issue in this second case was the puzzling and unique section 10(j) of the Massachusetts Tort Claims Act (MTCA), which attracts more than its fair share of MTCA appellate litigation in the commonwealth. The case arose from an assault on a passenger by an MBTA bus driver with anger management issues.

Relying on facts as favorable to the plaintiff, the court retold the story of the part-time driver who "sometimes engaged in unsafe driving and, on occasion, interacted with the public and his supervisors in a hostile or insubordinate manner," yet after three years was promoted to full time. The court recounted subsequent altercations with a passenger described as "unruly" and then with a police officer in a disagreement over road obstruction.

The instant case arose when a passenger pursued the bus, rapping on doors, trying to get information about routes. Further recounting the plaintiff's facts, the court wrote:

Lost, cold, and frustrated at the prospect of being stranded, [plaintiff] first questioned why the bus driver had not stopped sooner. The driver responded by yelling at [plaintiff] and leaving his driver's seat to confront [plaintiff] at the door. The driver kicked snow from the bottom of the bus at [plaintiff]. [Plaintiff] uttered a profanity. This further triggered the bus driver's anger; as the driver subsequently described it, he just "lost it." Enraged, the driver lunged at [plaintiff], escalating the encounter. For his part, [plaintiff] retreated, but the driver gave chase. When the driver caught up, the driver commenced punching and kicking [plaintiff]. The beating was so severe that [plaintiff] suffered a traumatic brain injury that has left him "permanently and totally disabled from his usual employment."

The plaintiff sued the MBTA for negligence in hiring, promotion, retention, and supervision. The defendant asserted sovereign immunity as codified in the MTCA.

MTCA section 10(j) is Massachusetts's effort to find the fine line between a tort claim that properly blames public officials for tortious misbehavior and a failure-to-protect claim, when public officials are not responsible for the actions of private third parties. Finding this line is a well known problem in tort claims, federal and state. The Massachusetts test has its own peculiar language, which, the abundance of case law suggests, is not necessarily clarifying. The court here quoted its own earlier assessment that the provision "presents an interpretive quagmire."

Section 10(j) holds public officials immune from "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer."

The test is especially hairy in cases such as this one, when the alleged negligence is on the part of the state as employer, thus one step removed from the misconduct of a state employee. When does negligence on the part of the state employer constitute the "affirmative act" required to circumnavigate 10(j)?

Here, the court decided:

The claims at issue here are based on the MBTA's own failure to exercise reasonable care in its supervision of the bus driver; as we have explained, "where the supervisory officials allegedly had, or should have had, knowledge of a public employee's assaultive behavior, it is the supervisors' conduct, rather than the employee's intentional conduct, that is the true focus of the case." Dobos v. Driscoll ... [Mass. 1989] (affirming judgment against Commonwealth for negligent supervision and training of officer who assaulted civilian)[; s]ee Doe v. Blandford ... [Mass. 1988] (MTCA permitted claims regarding public employer's negligent conduct in hiring, retaining, and supervising guidance counselor who assaulted student independent of alleged vicarious liability for intentional tort of public employee)....

In sum, [section] 10 (j) does not provide immunity to a public employer for its misfeasance in placing an employee with known but untreated anger management issues that manifest in violent and hostile behaviors in a public-facing position. The record on summary judgment here would support a fact finder's reasonable conclusion that the MBTA's affirmative act—its own decision, through its public employees responsible for supervising the bus driver, to schedule the driver to operate the bus route in Lynn, [Mass.,] without training him to manage his anger—originally caused [plaintiff]'s harm.

The decision feels right as measured against the legislature's determination to distinguish truly third-party causes, that is, risks initiated outside the scope of state responsibility, from causes inextricably tied to state responsibility, such as a state employer's responsibility in direct negligence for its agent's misconduct. And I do think this concept of scope of responsibility, or common duty in the parlance of multiple liabilities, can be used to delineate a workable understanding of "not originally caused."

At the same time, I am not persuaded by the court's reasoning that 10(j) jurisprudence has yet drawn a line much more clear than "I know it when I see it."

The second case is Theisz v. MBTA (Mass. Mar. 14, 2025) (Justia). New Orleans-born Justice Dalila Argaez Wendlandt authored the unanimous opinion of four justices, affirming the Appeals Court.

Sunshine Fest shines in D.C. despite gloomy climate

Last week I attended Sunshine Fest in Washington, D.C., a conference celebrating the 20th anniversary of Sunshine Week, which recognizes the importance in a free society of the freedom of information (FOI), also known elsewhere in the world as access to information (ATI) or right to information (RTI).

The extraordinary event was a coalition effort with David Cuillier, director of The Freedom of Information Project, Brechner Center for the Advancement of the First Amendment, at the University of Florida, at the helm. The conference met at the recently renovated Johns Hopkins University property on Pennsylvania Avenue—fittingly, the former physical home of the Newseum, which closed in 2019. As the National Freedom of Information Coalition has had annual conferences online since the pandemic, the in-person Sunshine Fest was a welcome opportunity to renew old acquaintances and make new ones.

Yet Sunshine Fest came at an odd time, amid the sudden, deep, and arbitrary cuts to the federal workforce. The Chatham House Rule was in force at the transparency conference. In the run-up to the event, Cuillier in an email to participants acknowledged the irony.

Some persons with official capacities related to the federal Freedom of Information Act (FOIA) participated in the conference, but only in their personal capacities. Certainly there was a sense that FOIA is not something a federal worker can afford to add to the résumé in the present climate. It was a strange feeling to gather with people talking about open government, yet speaking in hushed tones and looking over their shoulders. That has been my experience in many places in the world, but never before in Washington, D.C.

Some recently terminated federal officials attended too, such as Bobby Talebian, who, until recently, was the head of the Office of Information Policy in the Department of Justice. In my experience, Talebian was known for cutting through the bureaucracy. So it's hard to see how his departure facilitates efficiency.

The same might be said of the termination of the Open Government Federal Advisory Committee in the General Services Administration. It's hard to see how shutting down an advisory committee on transparency, which enlists the labor of private volunteers in public work, strikes a blow for efficiency rather than a blow to accountability. (See more at my March 7 post on the FOIA Federal Advisory Committee.)

Sunshine Fest was a success substantively as well as logistically. Speakers from all sectors participated in breakout sessions on artificial intelligence, FOIA and politics, vexatious requests, Trump and populism, privacy and transparency, and FOIA enforcement. Participants included requesters and custodians, industry and journalists, and persons working with FOI at state and federal levels and in legal systems in other countries.

David Cuillier, at lectern, opens Sunshine Fest 2025. The opening

plenary included Alasdair Roberts and Toby Mendel, from left.

RJ Peltz-Steele CC BY-NC-SA 4.0

In an opening session moderated by UMass Amherst Professor Alasdair S. Roberts, who had joined my international law class the day before, Toby Mendel, of the Canadian Centre for Law and Democracy (CLD), formerly with Article 19, gave a concerning report on the state of RTI laws around the world.

In particular, systems in Mexico and India, formerly regarded as exemplary models, have come under attack by populist regimes. The highly regarded independent oversight board in Mexico was terminated the very day of Sunshine Fest, and the Indian system was under "serious attack," Mendel said—though the Narendra Modi administration had to back off somewhat since the last election.

Mendel said that of the 56 U.N. member states that do not have RTI laws, 30 are "extremely weak" democracies, 17 are countries with fewer than one million inhabitants, and nine are "outliers."

Yet Mendel insisted that the glass is half full, or, he said, that is how he chooses to see it. Sri Lanka, he said, now has one of the strongest RTI frameworks in the world. RTI officials there have prevailed in 24 of 25 challenges to their enforcement authority. CLD is working with UNESCO to promote RTI in small island developing states, and Fiji has a proposal on the table in its legislature. Anecdotal evidence indicates "we're on an even keel," Mendel said, despite alarming developments in the United States.

Sunshine Fest announced the creation of a "Sunshine United Network" to marshal information about transparency going forward. Expect Sunshine Week and the Brechner FOI Project to publish further findings and takeaways from Sunshine Fest soon.

Court's pass on Wynn bid to revisit 'actual malice' makes sense, but standard still fuels misinformation

Wynn operates the Encore Casino in Everett, Mass.,
since a dust-up with authorities over ownership.
Holiday Point via Flickr CC BY 2.0

The U.S. Supreme Court declined to hear casino mogul Steve Wynn's bid to overturn the New York Times v. Sullivan "actual malice" standard, despite the known appetite of some justices to revisit the 1964 precedent.

The outcome is not a surprise and probably for the best, because Wynn had lousy facts to support his argument. Unfortunately, Sullivan's complicity in our present misinformation crisis remains real and ever more problematic. Cases such as Wynn's undermine legitimate recognition of the dysfunction Sullivan has wrought.

I've written and spoken before, and will not here belabor, my ardent opposition to the Sullivan standard, which requires public figures to demonstrate, even prove—usually upon filing a complaint, with no access to evidence in the possession of the defense—that the defendant subjectively knew of the falsity of the publication, or at least that there's a smoking gun disproving the defendant's denial.

Sullivan came about with good intentions. In a nutshell, the Supreme Court was determined to enforce Brown v. Board (U.S. 1954) and bring about the civil rights order required by the Reconstruction Amendments, specifically in Sullivan by heading off southern officials' weaponization of tort law. But the wide berth that the Court cut for freedom of speech vis-à-vis the competing values of personal reputation and human dignity was cemented in constitutional law, and now we face the consequences of an irremediable imbalance.

Steve Wynn
Sarah Gerke via Flickr CC BY-NC-ND 2.0

In Wynn's case, defendant Associated Press surfaced two complaints of sexual assault filed with police against Wynn in the 1970s. The reporting occurred in the context of contemporary allegations of a pattern of misconduct, which Wynn roundly denies. The AP report probably falls within the common law "fair report" privilege, which shields from liability the re-publisher of allegations in official documents. The advanced age of the reports raises a thin question on the "fair" prong of the analysis, and the degree to which the privilege has been constitutionalized is debatable. But those issues are neither here nor there, for the courts in the Nevada lawsuit never got that far.

Wynn's suit was dismissed under the Nevada anti-SLAPP law because, the Nevada Supreme Court affirmed, Wynn failed to demonstrate sufficient proof of actual malice in his pleading. Wynn offered little more in the way of allegation than that the police complaints were "implausible," so should have been disbelieved—hardly that they were contradicted by evidence in the defendant's possession. There was an allegation that the AP reporter regarded a complainant against Wynn as "'crazy'"—but, again, that hardly equates to "lying." Anyway, were the fair report privilege eventually implicated, the salient fact would be the truthful rendition of the reports, not the truth of their underlying contents.

Besides bemoaning Sullivan, I have lamented at length on the ill wisdom of anti-SLAPP laws, such as they have been adopted throughout the United States, another song of woe I won't here reiterate. I also have acknowledged consistently that anti-SLAPP works well when it works well (and could work better). Wynn's case proves both points. He didn't get his day in court, nor hardly a hearing. But I suspect his ability to prosecute all the way to Washington has more to do with his wealth than with the merits of his claim.

Wynn's appeal strategy was principally to attack Sullivan head on. Wynn knows, or his lawyers know, that near immunity for false, even ludicrous, allegations against public figures has everything to do with the vigor of misinformation circulating in the American marketplace of ideas. But Wynn was ill able to illustrate an injustice against a meritorious cause, the kind of fertile soil one needs to nurture willingness to overturn a 60-year-old, civil rights-era precedent.

For some further context of judicial dissatisfaction with Sullivan, here's an excerpt from my 2 Tortz: A Study of American Tort Law (Lulu 2024 rev. ed.), on "Reconsidering Sullivan."

Doubts about sacrosanct Sullivan were once uttered at one’s own risk in legal academic circles. But U.S. Supreme Court Justice Clarence Thomas legitimized debate with a concurrence in denial of certiorari in McKee v. Cosby (U.S. 2019). An actress, McKee, in 2014, publicly accused actor-comedian Bill Cosby of rape 40 years earlier. A letter from Cosby’s attorney to mass media attacked McKee’s credibility, but did not specifically deny the asserted facts of the encounter. McKee alleged defamation, and the courts concluded that the letter stated only unverifiable opinion.

Media advocates certainly hoped that Thomas’s commentary was a one-off. It was not. Two years later, Justices Thomas and Neil Gorsuch dissented from denial of certiorari in Berisha v. Lawson (U.S. 2021).... Earlier the same year, highly regarded U.S. Circuit Judge Laurence Silberman had joined Thomas’s call, dissenting in Tah v. Global Witness Publishing (D.C. Cir. 2021) (involving accusation of bribery against international human rights organization). A likeminded concurrence by Florida appellate Judge Bradford L. Thomas followed in Mastandrea v. Snow (Fla. Dist. Ct. App. 2022) (involving accusation city official was “on the take” in development matter). And that same year, the Journal of Free Speech Law published Professor David McGowan’s A Bipartisan Case Against New York Times v. Sullivan (2022). Justice Thomas reiterated his “view that we should reconsider the actual-malice standard,” Blankenship v. NBCUniversal, LLC (U.S. 2023) (Thomas, J., concurring in denial of certiorari), thrice more in 2022 and 2023.

Mass-media misinformation during the Donald J. Trump Presidency, contributing to the January 6, 2021, attack on the U.S. Capitol, shook the confidence in Sullivan even of some devoted liberal stalwarts in the academy. On the one hand, President Trump had used defamation, among other legal tools, to attack critics. He was accused of weaponizing transaction costs, but Sullivan remained an important substantive bulwark. On the other hand, Trump evaded “Me Too” accountability not only with denials, like Cosby, but with ruthless accusations of lying, which loyal political supporters embraced and amplified.

The busy federal court for the Southern District of New York has seen its share of politically charged defamation litigation. That’s where writer E. Jeanne Carroll, availing of a New York look-back statute, brought two suits against President Trump, alleging sexual battery in the 1990s and defamation for calling her claims “a complete con job,” “a hoax” and “a lie.” Juries awarded Carroll in excess of $80 million for sexual battery and defamation, despite the actual malice standard. Trump appealed. Do the verdicts show that Sullivan works? In 2022, Sarah Palin lost a defamation claim in S.D.N.Y. against The New York Times over a staff editorial that blamed her in part for the mass shooting that wounded U.S. Rep. Gabby Giffords. Exceptionally against the usual no-actual-malice motion to dismiss, Palin had won discovery. And discovery revealed some ethically problematic sloppiness behind the scenes at the Times. Nevertheless, bad journalism is not actual malice, and the court and jury so concluded. Palin’s appeal from the Second Circuit was seen widely as a contender to draw Sullivan reconsideration, but the Court passed.

Whether a function of social media, declining civility, or partisan extremism, data show that defamation litigation is up. And courts are not as quick as they once were to dismiss for a plaintiff’s inability to prove actual malice. Still, the public-plaintiff win remains a rarity, especially for the public official or public figure who doesn’t have the resources to go to the mat.

The case is Wynn v. Associated Press, No. 24-829 (U.S. Mar. 24, 2025).

House cap of 435 is unconstitutional, prof argues

My colleague Professor Anoo Vyas has published Why Capping the House at 435 is Unconstitutional in the Penn State Law Review.

Here is the abstract.

Expanding the House of Representatives could offer several benefits, as noted by various public policy experts. It could make gerrymandering more difficult and mitigate the impact of money in our political system. Additionally, it could lessen political polarization, which some scholars argue has reached levels that threaten the long-term viability of our democracy. In fact, increasing the size of the House theoretically could impact all potential legislation at the federal level.

Congress fixed the House at 435 members nearly a century ago when it passed the Permanent Apportionment Act of 1929. Though the population of the country subsequently has increased by more than 200 million, the number of House delegates remains at 435. This Article argues that the Permanent Apportionment Act is unconstitutional because it eliminates Congress’ responsibility to assess the size of the House every ten years. This review of House size in connection with the census was a significant tool used by proponents of the Constitution during the ratification period to convince skeptics who feared the House may one day transform into an oligarchical body.

Prof. Anoo Vyas
UMass Law

The Permanent Apportionment Act violates various modes of originalism and textualism, as favored by more conservative jurists. Moreover, it runs afoul of living constitutionalism, espoused by more liberal judges. Finally, a formula, such as one that automatically adjusts House size to the cube root of the population, could avoid contentious fights while simultaneously passing constitutional muster.

As I discussed with Professor Vyas in the development of his work, I believe his thesis is important regardless of whether it precipitates an accordant Supreme Court ruling anytime soon. The impact the article can and should have is to spark serious consideration of the dysfunction of our Congress and why it has failed as an institution to meet the needs of voters. Look no farther than U.S. Rep. Mike Flood's (R-Neb.) disastrous town hall.

In fact, when Professor Alasdair Roberts lectured at the law school last week about deficiencies in the design of American government—I wrote about Roberts's lecture yesterday—Roberts specifically listed the small size of Congress, relative to the legislatures of the world's comparably large and complex polities, as a cause of our defective democracy.

Roberts explains 'real crisis' of American government

Flyer by RJ Peltz-Steele (with AI art) CC BY-NC-SA 4.0

At UMass Law last week, Alasdair S. Roberts, UMass Amherst professor of public policy, lectured on "The Real Crisis of American Government" and spoke to my international law class about his 2023 book, Superstates: Empires of the 21st Century.

In research for his next book, Professor Roberts is investigating deficiencies in the design of American government and how they might be remedied. The work follows naturally after Roberts's most recent book, The Adaptable Country: How Canada Can Survive the Twenty-First Century (2024), as the author turns his scrutiny to the United States. 

The subject could not have been more timely with the dramatic and controversial changes afoot in the federal government. Here was the teaser for the talk:

The United States isn’t facing a crisis of democracy. It’s facing a crisis of adaptability: the inability to adjust institutions to meet today’s challenges.

Prof. Alasdair S. Roberts
RJ Peltz-Steele CC BY-NC-SA 4.0

I don't want to steal Professor Roberts's thunder; his ideas will be more fully developed as the research unfolds. I will summarize two prongs of his presentation this way:

First, as Roberts put it, if one were to design a government for a polity as socially pluralistic, geographically vast, and ideologically diverse as America is today, it would not look like the system of the U.S. Constitution. The delta between what we have and the ideal is the root of our problems, which span the three branches of government.

Second, fixing things won't be easy or fast, even after, and if, we acknowledge our problems. The drifts of dysfunction have accumulated for more than a century at both federal and state levels, and it will take just as long to reverse adverse trends and to re-revolutionize—one hopes bloodlessly—American government.

Problems wrought by the unanticipated contemporary complexity of the American nation were precisely where Professor Roberts left off in Superstates, in which he pondered the expansiveness, population, diversity, and complexity, unprecedented in the history of human civilization, of the United States, European Union, China, and India. Roberts talked to my international law class about how these modern polities are and are not like extinct historical empires, and what that means for our species in an era of existential challenges such as climate change. 

Superstates has been one of my favorite nonfiction books since I read it two years ago, when Professor Roberts visited my freedom-of-information seminar. Re-reading its first chapter last week, I found it only more salient to rapidly evolving international relations.

Professor Roberts's school-wide lecture was well attended in large thanks to sponsorship by student organizations, the Federalist Society, the Law and Political Economy Society, the National Lawyers Guild, and the Veterans Law Association, for which I am faculty adviser; and by the public interest law program and the Office of the Dean, which provided pizza. I am grateful to Professor Roberts for visiting campus and to all the students, faculty, and deans who supported his visit.

Christian law students hear advice on grounding oneself in faith amid stresses of law practice

🍀 St. Patrick's Day Zoom.
RJ Peltz-Steele CC BY-NC-SA 4.0

The newly constituted student Christian Legal Society at UMass Law School held its first event on St. Patrick's Day.

In a hybrid meeting, "Faith and the Legal Field," CLS students in Dartmouth, Mass., and I were joined via Zoom by Anton Sorkin, director of law student ministries at the Christian Legal Society in Springfield, Va.; attorney J.A.A. Purves, Penner & Purves, Santa Barbara, Cal.; and Kathy Cooper, InterVarsity regional director for faculty and graduate ministries, working out of Brown University in Providence, R.I.

The new student organization and this panel in particular were the work product of the tireless Tiffany Trott-McKenna and her executive board, Sophia Chiotis, JuliaBianca Josen, Dream Whitaker, and Paul Steinman. They're all wonderful students whom soon I will miss when they graduate and begin law practice.

A veteran of the U.S. Marines, Trott-McKenna is a phenom I have been especially privileged to know in her time in law school. She serves also as president of the Black Law Students Association and member of the Veterans Law Association, and she will practice law in California after graduation.

Trott-McKenna asked the panelists to share their experiences with faith and law practice, and also asked for takeaways that might be useful as Christian law students transition to practice.

Purves talked about family practice and explained, for example, the distinctly professional role of the lawyer in a divorce case. Both faith and one's professional responsibility call for compassionate and informed counseling of a client seeking divorce, he said—even though marital reconciliation will spell the early end of the representation.

Sorkin spoke to the challenges of practicing in Big Law while maintaining ethical and moral lines, dictated by faith, that one won't cross. Constant vigilance and self-interrogation are required to resist the "win at any cost" mentality that too often dictates legal maneuvering. I'm reminded of Daniel 6:3.

For my part, I spoke of the temptation to bifurcate one's life into faith and secular work, and how I came to understand that no one, lawyers included, truly lives a life of faith while indulging that duplicity.

In takeaways, Cooper spoke to the importance of prayer to keep an even keel. Likewise, I talked about the importance of staying in the Word—while admitting that my track record isn't perfect, as daily struggles inevitably pull us all toward materialism and the secular. The important thing is to try, try again.

Trott-McKenna succeeded magnificently in navigating the bureaucracy to obtain official recognition of the CLS student group at the law school and in the university. I have been blessed to serve as the inaugural faculty adviser for the CLS group.

The group is not yet an official chapter of the national CLS organization. That will be a job for an up and coming new board. I look forward to CLS contributing vitally to the formation of law students' professional identity in the coming years.

Book details knotty business of higher ed counsel

By attorney Louis H. Guard and academic Joyce P. Jacobsen, All the Campus Lawyers (2024) is a compelling recent read for anyone interested in the law of higher education—whether as a counselor, as a client, or as a victim of higher ed machinations. I've been all three.

Guard and Jacobsen both are affiliated with Hobart and William Smith Colleges—a beautiful double campus I visited just last summer, perched atop Seneca Lake in Geneva, New York, in the Finger Lakes region. Guard is a general counsel there, and Jacobsen a past president and economics professor.

All the Campus Lawyers thoroughly covers the many facets of higher ed practice nowadays, from civil rights and labor, to intellectual property, contracting, and cybersecurity. It is a lot to see it all in one place. At an overarching level of abstraction, the book—which is subtitled, "Litigation, Regulation, and the New Era of Higher Education"—ponders how and why law has become pervasive, and sometimes paralyzing, of higher ed. 

To my reading, Guard and Jacobsen are careful to avoid a normative agenda, and rather strive to be descriptive, instructive, and sometimes even inspiring. But I came away with an uneasy feeling in the belly that law, at least in practice, has a stranglehold on the free-wheeling nature of academic inquiry that classical-liberal society associates with the "quintessential marketplace of ideas." 

If higher ed is just a business—and maybe it always was—law, from the perspective of university counsel, seems to be part of the problem: supporting the business framing with defensive practice and risk aversion, and prizing the institution over the people who constitute it and whom it serves. No doubt my perception is colored by experience.

I stop by the Geneva, N.Y., Welcome Center in July 2024.
RJ Peltz-Steele CC BY-NC-SA 4.0

Another impression I had of the book was that it is siloed, tending to view the mission creep of law in the higher ed sector to the exclusion of the same phenomenon across American life. Indeed, what business, what person does not need a lawyer to navigate the world today, even if ordinary people have to manage without, usually to their detriment. I'm not sure the problem of law in higher ed can be examined exclusively of "the legalization of American society" (meaning ubiquity of law, not blessing of lawfulness).

Furthermore, there is, to my mind and at one level, a rather simple explanation for law's infiltration of higher ed. With a hat tip to Lincoln Steffens and Clark Mollenhoff: Follow the money. The relevant question might not be why law has become pervasive in higher ed, but why higher ed has become big business rather than collective good or philanthropy. Guard and Jacobsen are too ready to take that twist of mission for granted.

Despite my nitpicks, Campus Lawyers is a worthwhile read for a fuller understanding of the relationship between law and higher ed, and especially for insight into the modus operandi of university counsel.

Here is the publisher's description:

Not so long ago, colleges and universities had little interaction with the law. In the 1970s, only a few well-heeled universities even employed in-house legal counsel. But now we live in the age of tenure-denial lawsuits, free speech battles, and campus sexual assault investigations. Even athletics rules violations have become a serious legal matter. The pressures of regulation, litigation, and legislation, Louis Guard and Joyce Jacobsen write, have fostered a new era in higher education, and institutions must know how to respond.

For many higher education observers and participants, including most administrators and faculty, the maze of legal mandates and potential risks can seem bewildering. Guard, a general counsel with years of higher education law experience, and Jacobsen, a former college president, map this unfamiliar terrain. All the Campus Lawyers provides a vital, up-to-date assessment of the impact of legal concerns on higher education and helps readers make sense of the most pressing trends and issues, including civil rights; free speech and expression; student life and wellness; admissions, advancement, and community relations; governance and oversight; the higher education business model; and on-campus crises, from cyberattacks to pandemics.

As well as informing about the latest legal and regulatory developments affecting higher education, Guard and Jacobsen offer practical guidance to those in positions of campus authority. There has never been a more crucial time for college and university boards, presidents, inside and outside counsel, and other higher education leaders to know the law and prepare for legal challenges.

Of course, it remains to be seen what remains of higher ed after the Trump Administration. Guard and Jacobsen might have accomplished the equivalent of a book about the flu on the eve of the pandemic, in which case, we'll need a revised edition sooner rather than later.