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.
Grubhub drivers signed away their right to sue on unfair wage claims, the Massachusetts Supreme Judicial Court ruled today.
Plaintiff Grubhub drivers complained that the company is stiffing them on minimum wages and tips under state law and, worse, retaliating against drivers who complain.
I have no knowledge of the validity of these claims, but I worry a lot about the exploitation of gig workers in our economy. This exploitation is a big slice of the broader problem of employers' over-classification of personnel as independent contractors to avoid having to provide fair wages and benefits. Sometimes employers cross the legal line and sometimes they don't; regardless, the effect of even the lawful leeway contributes to our glut of working people who cannot make ends meet, put us all at risk with insufficient insurance for healthcare and accidents, and spend so much on necessities as to have paralyzed American socioeconomic mobility. Our woefully outdated measures of employment fail to reflect this problem, which is why media pundits and Washington pointy-heads scrunch their faces in confusion over how we can have favorable job numbers and an "it's the economy, stupid" political crisis happening at the same time.
Collateral to labor exploitation, we have long had the problem of our court system being subverted by the supposed freedom to contract. At this point, we all know without even having to read the fine print that every terms-and-condition box we check, just like every product we liberate from shrinkwrap, binds us to arbitrate any disgruntlement and frees our adversaries from ever having to answer to us in the courts, which were designed for that very purpose. Many of us know furthermore that the terms of arbitration profoundly favor the respondent companies, both substantively, evidenced empirically by companies' overwhelming win rates, and, often, procedurally, by way of inconvenient venues, arcane procedures in contrast with small claims courts, and the burdens of transaction costs. I've cited the definitive books on this subject by Nancy Kim and Margaret Jane Radin so many times, that, frankly, I just don't have the energy today to look up their URLs again. Let's instead invoke the tireless Ralph Nader and his persistent admonition that we have undermined the Seventh Amendment, to which point I add humbly that anti-vigilantism is an important function of our civil dispute resolution system, and maybe we ought remember that in a society in which the least mentally stable among us apparently have ready access to firearms.
So it's the confluence of these two socio-legal problems that interests me in the present case, more than the merits. On the merits, the Grubhub complainants tried to work around their 2017 clickwrap agreement to arbitrate by characterizing themselves as a kind of interstate transportation worker that is exempt from the Federal Arbitration Act. But Grubhub drivers are not long-haul truckers. A for creativity, F for achievement. The court held that the drivers indeed signed away their right to sue.
F is likely to be the final disposition of the complaints in arbitration after remand, too.
You can read more in Archer v. Grubhub, Inc., No. SJC-13228 (July 27, 2022). Justice Dalila Argaez Wendlandt wrote the unanimous opinion (temporarily posted). The case in Suffolk County Superior Court is no. 1984CV03277 (class action complaint filed Oct. 21, 2019).
The U.S. Chamber, dependable opponent of transparency and accountability, was among the amici on the prevailing side. The Harvard Cyberlaw Clinic was among the amici
for the workers. The office of Commonwealth Attorney General Maura
Healey entered an appearance as amicus, but filed no brief. Healey's
office sued Grubhub one year ago, alleging the company overcharged
Massachusetts restaurants during the pandemic (complaint, press release). That case, no. 2184CV01719 in Suffolk County Superior Court, is pending currently on cross motions for summary judgment.
Every person imprisoned in the adult correctional institutions for life
shall, with respect to all rights of property, to the bond of matrimony
and to all civil rights and relations of any nature whatsoever, be
deemed to be dead in all respects, as if his or her natural death had
taken place at the time of conviction. However, the bond of matrimony
shall not be dissolved, nor shall the rights to property or other rights
of the husband or wife of the imprisoned person be terminated or
impaired, except on the entry of a lawfully obtained decree for divorce.
Alleging negligent maintenance, one plaintiff-inmate complained "that his arm was severely burned and permanently disfigured when he made contact with an exposed hot water pipe at the [prison]." Another alleged negligence when he slipped and fell after being compelled "to walk across an icy walkway at the [prison]." The trial court rejected both claims as barred by the "civil death" statute.
I was shocked to read of this case in my home state's Providence Journal; I never had heard of a "civil death" statute. The R.I. ACLU provided some background:
Rhode Island was apparently the only state in the country still
enforcing a law like this, whose origins date back to ancient English
common law. As far back as 1976, a court struck down Missouri's civil
death statute, noting that "the concept of civil death has been
condemned by virtually every court and commentator to study it over the
last thirty years." The court observed that such laws had been
characterized even before then as "archaic," "outmoded," "an outdated
and inscrutable common law precept," and "a medieval fiction in a modern
world." In 1937, when 18 states still had civil death laws, a law
review article called the concept "outworn."
Applying the 1843 state constitution (article 1, section 5), a four-justice majority of the Rhode Island Supreme Court had little trouble reaching the conclusion that I thought was obvious, that the law violates the fundamental due process right of access to the courts.
Employing strict scrutiny, the court acknowledged that "civil death"
functions as an additional sanction imposed upon some of the state's worst criminals and furthers the goals of punishment and deterrence. This Court has recognized that "[t]he loss of civil status as a form of punishment is a principle that dates back to ancient societies." .... However, it is our opinion that this particular additional punishment is not a compelling reason to override the right of access to the courts that is textually guaranteed by the Rhode Island Constitution.
Even were the statute supported by a compelling state interest, it is not narrowly drawn, the court further opined, as it fails to distinguish between prisoners based on their eligibility for parole.
Justice Maureen McKenna Goldberg dissented. "Prison inmates, especially life prisoners, are not entitled to the same degree of constitutional rights as are members of society at large," she wrote, "and that includes the right to bring tort claims against the warden for a slip and fall or a burned hand." She would have narrowed the question to the plaintiffs' negligence claims and upheld the statute.
"In my more than two decades of service on this Court, I cannot recall ever having declared a statute to be unconstitutional," Justice Goldberg opined. "[T]his should not be the first case with such a drastic result in light of our longstanding jurisprudence."
A former state senator Judge Prata was nominated to the court by Governor Gina Raimondo in December 2020, just three months before she left office to become the U.S. Secretary of Commerce. Justice Lynch Prata is 2000 graduate of Catholic Law, for which I periodically teach as a visitor. Judge Goldberg is the senior-most justice on the court, having served since her appointment in 1997.
Crude contaminates an open toxic pool in the the Ecuadorean Amazon
rainforest near Lago Agrio. Photo by Caroline Bennett / Rainforest
Action Network, CC BY-NC 2.0.
Court rulings are stacking up against the plaintiffs in the
global Chevron-Ecuador litigation.About
a month ago, the Dutch Supreme Court, affirming arbitral orders, refused enforcement
of the $9.5bn judgment that Ecuadorean courts entered against Chevron, successor
to Texaco, for oil pollution at Lago Agrio, feeding into the Amazon River (e.g., AP).Plaintiffs’ appeals have fared poorly since Canadian
courts rejected enforcement earlier in April (e.g., Reuters),
piling on adverse outcomes in the United States, Brazil, and Argentina.
Now an opinion headline in Oakland News Now—if atop a
column authored by a self-professed “influencer” who decidedly favors Chevron—trumpets that plaintiffs’ attorney “Steven Donziger, …
Once The Toast Of Hollywood, Is Now Simply Toast.”Notwithstanding that dry, I mean wry, assessment,
it is true that Donziger was ordered in March 2018 to reimburse Chevron for
more than $800,000 in legal fees as part of equitable relief in a private RICO
action in the Second Circuit, and subsequently he was pressed to defend his bar
license.He maintains that he and his
allies are being victimized in a political-hit orchestrated by Big Oil.
If you’re new to the Chevron-Ecuador case, beware the rabbit
hole.It’s almost impossible to
summarize how we’ve come to this point in the course of a quarter century.The quickly dated 2015 book Law of the Jungle by Paul M. Barrett is
still an excellent and objective port of entry (Amazon).(My co-instructor/spouse and I plan to assign
it in our comparative law class in the fall semester.)You also can read about the case through the
columns of George Mason Law Professor Michael I.
Krauss at Forbes; he’s followed developments
closely over the years.
In short, there was some awful pollution in remote oil
fields in Ecuador, reckless extraction and vacant regulation in the 1970s and
1980s wreaking devastating, long-term, far-reaching, and literally downstream consequences
to human life and the environment.That
part is hardly in dispute.What has been
less clear and is hotly contested is whom should be blamed.
Enter the polarizing personality of Donziger, Harvard Law ’91,
who, it must be said, is a genius for having designed a new model of global
environmental litigation.He solicited
wealthy and famous, like, Sting famous, investors to raise money for the high
costs of litigating against transnational Big Oil behemoths in an effort to
tame them with the rule of domestic law.At what point Donziger’s litigation lost the moral high ground—somewhere
between the get-go and never—is the subject of much speculation.However, that corruption was rampant in
Ecuadorean courts is beyond dispute, and the role of the lawyer when justice
might require, say, cash prepayment of a new “court fee,” raises some thorny
questions in ethics and cultural relativism.What is for sure is that when you start talking about Big Oil as
occupying the moral high ground, something already has gone terribly wrong.
One can only make an informed guess about where liability for
Lago Agrio should land.Texaco/Chevron
probably bears a slice of moral, if not legal, responsibility, at least in a
strict-liability, “Superfund” sense.But
through an unascertainable and poisonous mix of lax regulation, corruption, foolhardy
assumption of responsibility, and their own recklessness practices, the state
of Ecuador and its state-owned enterprises (SOEs) in oil extraction were vastly
enriched and probably bear principal responsibility for the disaster, morally
and legally.Arguable then is how thoroughly
moral responsibility should flow back to the industrialized world along the
pipeline of oil demand; I won’t step into those inky depths.
Donziger and the Ecuador litigation is a capstone course for
law school, so I’m not here to state a thorough explication.I mention the case because it strikes me that
it exemplifies two serious problems in contemporary tort law, intersecting on this
unusual tangent.
The first problem is that both state actors and transnational
corporations operate above domestic law and without accountability to private
claimants in international law, and that portends a disastrous end to life on
earth.What ought not be forgotten about
the Chevron-Ecuador legal fiasco is that underneath all of the legal
finger-pointing, there remains an unmitigated environmental catastrophe.And what’s worse, it’s ongoing.Ecuadorean
operations in the area still use reckless extraction processes such as unlined oil
pits, and Big Oil is bidding to reclaim a piece of the action.People are still being poisoned, and the Amazon
is still being polluted.
Meanwhile, follow the oil downstream, and Hasan Minhaj will show you
(embedded below) how Brazil is newly doubling down on rain forest destruction.I’m talking about the good old-fashioned, small-animals-fleeing-for-their-lives-from-set-fires-and-bulldozers
kind of destruction that was the stuff of my childhood nightmares in the dark
age before we recycled.Human civilization
and our rule of law on earth have not yet figured a way to attack this problem
on the international level, much less to protect the human rights of local citizens
within an offending country.Our own
alien tort statute was recently defanged vis-à-vis transnational corporations—in a case about Big Oil, by
the way—and it’s not clear that the law’s landmark 1980 application in Filártiga
v. Peña-Irala, bringing a foreign state torturer to justice, would even
be upheld in federal court today.
The second problem is that in places where we do observe the
rule of law, namely, here in the United States, legal transaction costs have
spiraled so high that our courts have become available only as playgrounds for
the rich and powerful, whether to settle disputes among themselves, subsidized by
us, or to quash the claims that we, the little people, might dare to file in
our puny arrogance.We know this problem
on the mundane, ground level as “access to justice.” I suggest that this is the same problem that Donziger—giving
him the benefit of the doubt at the get-go, for the moment, assuming reasonably
that his multitude of motives must at least have included compassion for victims
of pollution among the world’s poorest people—was up against in trying to take
on Big Oil.Documents in the RICO case
contain tidbits about Donziger’s financing, such
as a rock star’s “two equity positions in the case, one for 0.076 percent
and 0.025 percent.”It turns my stomach
to read about human rights litigation as an investment opportunity, perhaps
ripe for an initial public offering.(“Call
now for your free report; first time callers can get a free tenth-ounce Silver
Walking Liberty Coin!”)If that’s how we’re
setting legal norms around human rights and deterring threats to human life, then
that says more about us than it does about Steven Donziger.
These are the days that I want to give up on the human
experiment and hunker down in willful ignorance to marshal my resources and plan
for a contented retirement.
Though I’m a little short on resources.Can I still buy shares in that Roundup litigation?
