'Toxic Town' features real-life, toxic-tort tragedy in UK

Premiering on February 27, Toxic Town (IMDb), a compelling new miniseries on Netflix fictionalizes a true story of toxic tort in England.

The show couldn't have been timed better for my 1L Torts students' study of public nuisance, which we just completed. The real-life events of Toxic Town are sometimes called "the British 'Erin Brockovich.'" The facts are even more like the case of water contamination in Woburn, Mass., which was the subject of A Civil Action, though Toxic Town makes much of the cadmium in circulating dust as key to opening up the case. 

In the Toxic Town matter, the town of Corby had its water supply poisoned by a defunct steelworks in East Midlands, England, resulting in a cluster of birth defects in the 1980s and 1990s. The courts ultimately ruled in favor of complainants for public nuisance against the local government, which was willfully sloppy in trying to rehabilitate the old steelworks and was not forthcoming with information when challenged. The parties settled confidentially on appeal in 2010. There's more about the true story at Esquire, Time, and BBC.

I don't know enough about British tort law to assess the portrayal of the legal case in Toxic Town. There are some compelling points that suggest the series as a worthwhile study in comparative law. The plaintiff solicitors and barristers refer to a standard of "knowing negligence," which sounds to me closer to recklessness than to negligence in American tort law. The plaintiffs' expert says he must testify with 95% certainty, an extraordinary bar. That requirement causes the plaintiff lawyers to trim their client class. In the court proceedings, a bench trial in the British system, there is testimony that would be excluded for fear of prejudice in an American jury trial. The miniseries also makes much of political tensions within the defendant town council, including a cover-up, implicating the freedom of information. I would welcome an opportunity to study further the similarities and differences here between U.S. and UK law.

The all-star cast of four-episode Toxic Town includes former Doctor Who Jodie Whittaker as the lead "Erin Brockovich" character, based on real-life mother-plaintiff Susan McIntyre. My beloved Robert Carlyle, Trainspotting's "Begbie," plays a town councilor with a conscience. The immediately recognizable Rory Kinnear plays the Civil-Action-Travolta-like plaintiff lawyer, Des Collins. Another favorite actor of mine, Michael Socha—Being Human (UK), and a co-alum with Carlyle of Once Upon a Time—plays the Whittaker character's unreliable love interest.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Curators decry parody souvenirs, claim quasi-copyright

D 'n' me at the Accademia in June.
RJ Peltz-Steele CC-BY-NC-SA 4.0

David's genitals are all the rage in Florentine touristic fashion, and some observers see a kind of intellectual property (IP) problem.

Italian law has pioneered the protection of cultural heritage since the 15th century (Mannoni), centuries before Italian unification. Medici rulers limited the export of art in the 19th century (Calabi). In the 20th century, a 1909 law asserted a public interest in protecting items "at least 50 years old and 'of historical, archaeological, paleo-anthropological interest'" (N.Y. Times).

Italy continued to lead in protective legal measures in modern times. A public responsibility to safeguard the national patrimony was enshrined in the post-war constitution in 1948 and became the basis of a "complex public organization" (Settis). According to Giambrone Law, Italy was the first nation to have a police division specially assigned to protect cultural heritage. Italy embraced a 2022 European treaty on cultural protection with aggressive amendments to domestic criminal law (LoC). Woe be to the Kazakh tourist who carved his initials into a Pompeii wall this summer (e.g., Smithsonian).

Italian legal protection has extended beyond the physical. A 2004 code of cultural heritage limited visual reproductions of national patrimony without prior approval by the controlling institution and payment of a fee to the institution. 

That measure caused more than a little hand-wringing in copyright circles, as the law seemed to reclaim art from the public domain. The Italian Ministry of Culture doubled down with regulations in 2023, even as the EU moved to strengthen the single-market IP strategy.

Probably needless to say, images of famous works of Italian art are sold widely, in Italy and elsewhere, on everything from frameable prints to refrigerator magnets. Enforcement of the cultural heritage law is thin on the ground, but the government has scored some significant wins against high-profile violators.

A recent AP News story by Coleen Barry described the latest outbreak of this IP-vs.-free-speech conflict, this time over images of David. Cecilie Hollberg, director of the Galleria dell’Accademia, where David resides, has decried vendors who profit from "debase[ment]" of David's image.

Aprons for sale, 2010.
Willem via Flickr CC BY-SA 2.0

I saw David in late June. It was the second time I visited him; my first visit was in 1996. I don't well remember Florence from that long ago. But this time I surely was surprised by the quantity and variety of David gear available for sale on the streets around the Accademia, especially the sort of gear that Hollberg is talking about. David has become a character in every variety of indecent meme and crude joke about drinking and sex. David's penis is a favorite outtake.

These uses of David's image especially implicate moral rights in copyright law. Moral rights aim to protect the dignity of creators against distasteful uses and associations. However, as such, moral rights typically end with the life of the creator. Michelangelo died in 1564. The theory behind the cultural heritage code is indicated by the very word "patrimony": that there is a kind of inherited public ownership of classical works, thus entitling them to ongoing moral protection.

Copyright in U.S. law and in the common law tradition in the 20th century was slow to recognize moral rights, which have a storied history in continental law, especially in France and in the civil law tradition. But common law countries came around, at least most of the way. Broader recognition of moral rights was motivated principally by treaty obligations seeking to harmonize copyright. A secondary motivation might have been a proliferation of offensiveness in the multimedia age.

Hollberg has been the complainant behind multiple enforcement actions. Barry reported: "At Hollberg's behest, the state's attorney office in Florence has launched a series of court cases invoking Italy's landmark cultural heritage code .... The Accademia has won hundreds of thousands of euros in damages since 2017, Hollberg said." Not a bad side hustle.

David's shapely backside is not to be underestimated.
RJ Peltz-Steele CC-BY-NC-SA 4.0

EU regulators are looking into the legal conflict between free artistic expression and protection of cultural heritage, Barry wrote. My inclination to classical liberalism puts a thumb on the scale for me in favor of the commercial appropriators. I'm uncomfortable with inroads on the public domain. There already is excessive such impingement on creative freedom: inter alia, abusively lengthy copyright terms, chaos around orphan works, prophylactic notice and take-down, and publisher-defined fair use. The idea of removing permissible uses from the public domain is antithetical to liberal norms.

At the same time, I get the frustration of authorities. The average family visiting the dignified Accademia, eager to induce a much-needed appreciation for history and art in the youngest generation, first must navigate the cultural gutter.

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)

 

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.

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.

To combat corruption, India Supreme Court strikes down dark money system, cites U.S. precedents

Late last week, the Supreme Court of India struck a blow for transparency and accountability when it ruled unconstitutional a system of anonymous political donation.

In a 2017 law, India had adopted a system of "electoral bonds." These are not investment bonds. Rather, to make a political donation, a donor was required to buy a political bond from the State Bank of India, and the bank then gave the money to the indicated political candidate.

The bond system was adopted ostensibly to further transparency and accountability. By requiring all political donations to be processed by the state bank, regulators could ensure compliance with donor restrictions. The system was supposed, then, to balance donor anonymity—a legitimate extension of free speech rights—with anti-corruption regulation.

P.M. Narendra Modi speaks to Pres. Biden at the G20, 2022.

White House photo via Flickr

But as Darian Woods reported for The Indicator, the party in power of Prime Minister Narendra Modi received 90% of donations. It seems less likely that imbalance represented overwhelming enthusiasm for the Modi administration and much more likely that corporate donors sought favor with the administration and feared retaliation otherwise, despite their seeming anonymity. For while they were anonymous to the public, their identities were known to the state bank. And the state bank is under the control of the administration.

The India Supreme Court ruled that the electoral bond system is incompatible with the fundamental "right to know" (RTK), that is, with Indian norms of freedom of information (FOI). I wrote in 2017 about India's Right to Information Act (RTIA), a statutory instrument akin to the U.S. Freedom of Information Act (FOIA). FOI, or access to information (ATI), for India, though, is in sync with contemporary norms elsewhere in the world, notably Europe, where RTK or FOI is recognized as a human right. Courts such as the India Supreme Court, like the Court of Justice of the EU, therefore have the constitutional enforcement power of judicial review.

The India Supreme Court, as it often does on important constitutional questions, surveyed other common law nations. And despite our weak and non-textual recognition of FOI as a constitutional right, the United States earned several mentions. Saliently, the court cited the old stalwart, Buckley v Valeo (U.S. 1976), for "concern of quid pro quo arrangements and [the] dangers to a fair and effective government. Improper influence erodes and harms the confidence in the system of representative government." Disclosure, the India court reasoned,

helps and aides the voter in evaluating those contesting elections. It allows the voter to identify interests which candidates are most likely to be responsive to, thereby facilitating prediction of future performance in office. Secondly, it checks actual corruption and helps avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. Relying upon Grosjean v. American Press Co. (U.S. 1936), [disclosure] holds that informed public opinion is the most potent of all restraints upon misgovernment. Thirdly, record keeping, reporting and disclosure are essential means of gathering data necessary to detect violations of contribution limitations.

For a more recent vintage, the India court cited Nixon v. Shrink Missouri Government PAC (U.S. 2000): 

[T]he Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermines the system of representative democracy. It stems public awareness of the opportunities for abuse inherent in a regime of large contributions. This effects the integrity of the electoral process not only in the form of corruption or quid pro quo arrangements, but also extending to the broader threat of the beneficiary being too compliant with the wishes of large contributors.

So the India court fairly observed that the U.S. Supreme Court has been willing to unmask donors, even if the Supreme Court has lately been less than enthusiastic about regulations it once, in a Buckley world, approved. Indeed, even as the U.S. Supreme Court rejected the disparate treatment of corporations in Citizens United v. FEC (U.S. 2010), it approved of disclosure requirements. 

The India court found support for disclosure in defense against corruption in other national regimes, too, for example, in Canada and Australia. Alas, there, comparisons with the United States deteriorate in practice. The India Supreme Court did not mention the dark (money) side to America's affair with transparency. Read more at the Brennan Center for Justice.

The case is Association for Democratic Reforms v. India (India Feb. 15, 2024).

Libro estudia poder de corte constitucional ecuatoriana

El abogado Ugo Stornaiolo Silva ha publicado un libro, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Amazon). (English below.)

Stornaiolo es un abogado ecuatoriano y estudiante de LL.M. Nos conocimos cuando él era estudiante mío en el Programa de Derecho Americano de la Universidad Católica de América en la Universidad Jagellónica de Cracovia, Polonia. Visitó generosamente mi clase de Derecho Comparado en UMass, a través de Zoom en la primavera, para hablar sobre derecho constitucional comparado, especialmente a la luz de notables decisiones recientes de los tribunales ecuatorianos con respecto a los derechos indígenas y los derechos de la naturaleza.

Aquí está el resumen del libro nuevo.

Por lo dispuesto en la Constitución actualmente vigente, la Corte Constitucional ecuatoriana es una de las instituciones más importantes del diseño constitucional ecuatoriano, y sus extensos poderes, sin contrapesos o fiscalización, podrían sugerir que es un ente soberano dentro de nuestro país frente a una institucionalidad de poderes separados que no puede ejercer sus funciones fuera de su control.

Sin embargo, la soberanía de la Corte Constitucional no es un fenómeno expreso, por lo que demostrar su condición soberana podría significar un cambio de paradigma en el entendimiento crítico de nuestro propio ordenamiento político y jurídico.

Stornaiolo escribe para el websitio, The Libertarian Catholic (El Católico Libertario). Para conocer una muestra en inglés de su trabajo sobre el constitucionalismo ecuatoriano, consulte su artículo de 2021,  "Originalism and Textualism Are Not Enough Against Constitutional Lawfare" ("El Originalismo y el Textualismo No Son Suficientes Contra la Guerra Jurídica Constitucional").

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Attorney Ugo Stornaiolo Silva has published a book, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Judges as Sovereigns: A Legal-Political Exploration of the Supreme Power of the Ecuadorian Constitutional Court) (Amazon).

Stornaiolo is an Ecuadorean lawyer and LL.M. student. We met when he was a student in my class in the American Law Program of The Catholic University of America at Jagiellonian University in Kraków, Poland. He generously visited my Comparative Law class at UMass, via Zoom in the spring, to talk about comparative constitutional law, especially in light of recent noteworthy decisions by Ecuadorian courts regarding indigenous rights and the rights of nature.

Here is the précis of the book (my translation).

Based on constitutional law as presently in force, the Ecuadorian Constitutional Court is one of the most important institutions in the Ecuadorian constitutional design, and its extensive powers, without checks or oversight, could suggest that it is a sovereign entity within our country, in opposition to the separation-of-powers framework, by which one cannot exercise power beyond the scope of authority.

However, the sovereignty of the Constitutional Court is not an explicit phenomenon, so demonstrating its sovereign condition could mean a paradigm shift in the critical understanding of our own political and juridical order.

Stornaiolo writes for the website, The Libertarian Catholic. For a taste in English of his work on Ecuadorian constitutionalism, check out his 2021, paper,   "Originalism and Textualism Are Not Enough Against Constitutional Lawfare."

Comparative law class explores death, migration, more

Publicdomainvectors.org

Law students in my comparative law class examined a range of compelling issues this spring, including medical aid in dying, immigration reform, sexual assault and violence against women, and restorative justice in Islamic law; and we benefited from Zoom guests, who joined from Afghanistan, Belgium, Poland, and America.

Teaching comparative law is a distinctive joy, as I have opined previously, because always there is more to learn. The subject gives students with wide-ranging passions an opportunity to explore previously untapped veins of research. Everyone in the class, including me, shares in the riches that are surfaced.

I owe gratitude to special guests who joined our class via Zoom to enrich our understanding and skills.

• Sylvia Lissens, a Ph.D. candidate and teaching assistant in comparative law, joined from KU Leuven in Belgium to talk about EU law-making and share a European legal perspective.
• Ugo S. Stornaiolo Silva, an Ecuadorean lawyer and LL.M. candidate, joined from Jagiellonian University in Poland, to talk about Ecuadorean constitutional law and share a Latin American legal perspective.
• A Dutch friend (whose name I withhold for his security), a humanitarian aid worker, joined from Kabul, Afghanistan, to talk about aid delivery within domestic legal constraints in the Middle East.
• Misty Peltz-Steele, a law librarian (and my generous wife), joined from Roger Williams University Law School in Rhode Island to orient students on foreign, comparative, and international legal research.
  

Next year, I'll be on a break from teaching comparative law, as I tackle two sections of 1L torts. Fortunately, to tide me over, I have a raft of ambitious and thoughtfully developed student research projects on which to ruminate, including the following. I thank our guests and especially thank my students for a rewarding semester.

Sarah Barnes, Dignified Death: A Comparative Analysis of Medical Aid in Dying Between the United States and the Netherlands.  Medical aid in dying (MAID), also known as physician assisted suicide, has been a growing concept globally for several decades. The ethical, moral, and legal issues surrounding the practice have caused some jurisdictions to proceed with caution and others to abandon it completely. While creating processes and procedures around MAID can be complicated and daunting, a few countries have managed to successfully implement a system in which their citizens can participate. The following compares and analyzes two jurisdictions, the United States and the Netherlands, that have managed to provide this practice and allow those who are eligible a way to die with dignity.

Morgan Dunham, Implementing Change: A Call for a Point-Based Immigration System in the United States. As the United States attempts to compete on a global scale with other economic powers, the ability of countries to attract foreign workers to their shores permanently is placed under a microscope. While immigration is a controversial issue across the globe, it is also a growing reality. This paper examines the U.S. employment-based immigration system in comparison with the employment-based hybrid system of the Commonwealth of Australia, focusing on its use of a point-based merit system in screening applicants. In addition, this paper examines attempts by legislators in each country to incorporate elements of the other system to improve efficiency. Through an overview of each country’s paths to legal permanent residency, zones of convergence are analyzed to better highlight the benefits and limitations of each system. 

Jordan Lambdin, "Call Them by Their True Names": Comparing the United States Violence Against Women Act to Chile's Femicide Laws. Violence against women is linked to legal and social institutions, as well as cultural value systems. This project compares the legal systems and codes relating to violence against women in the United States (U.S.) and Chile. The objective of this project is to compare the similarities and differences between the U.S. approach to criminalize domestic violence and Chile’s femicide criminalizing code, namely the lack of a femicide/intimate partner homicide definition or criminalizing statute. This project aims to explain the different U.S. and Chilean cultural and legal responses to criminalizing violence against women. Both systems are part of a global culture of violence against women that aims to physically and culturally destroy women as a group. The result is the repeated destruction and death of many thousands of women.

Sara Zaman, What is a Sexual Offense?: A Legal Comparison Between Pakistan and the United States. Sexual offenses are fairly defined in the same manner across countries. The passage of Pakistan’s Protection of Women (Criminal Laws Amendment) Act of 2006 played a key role in defining sexual assault against women after the Hudood Ordinance of 1979 received severe criticism from the Pakistani population and human rights groups. Likewise, in the United States, the Model Penal Code draft of 1962 also provided a definition of sexual assault. The two documents have striking similarities despite the fact that they were written thousands of miles apart by very distinct cultures. However, the differences are still noted. The laws of both Pakistan and the United States can be improved by comparing and contrasting these two documents and incorporating the necessary and important provisions that they may lack.

[Name withheld for political sensitivity,] Restorative Justice Theory: Iran and USA.  This paper explores the forms of punishment and mitigation related to criminal acts in Iranian and American criminal law, with a predominant focus on the restorative justice theory. The purpose of this paper is to form a comparative analysis between the Restorative Justice theory in Iran and the United States. This paper will touch on subjects such as, why Iran and the United States moved towards to restorative justice theory, how their criminal courts framework function, a comparative analysis of the act of excusing the guilty party in criminal cases between the lawful frameworks and the comparison of Qisas in Iran and restorative justice theory in the U.S. Finally, I will highlight the similarities and differences between the restorative justice theory in Iran and the United States. This paper hopes to clarify the United States construct of justice lacks the critical components of mercy and compassion which are essential towards the attainment of a fair and equitable justice system.  As a guidance for progressing, the U.S. should look at the Iranian criminal justice system as an example of how to provide a fair and just system.

Flags from Flagpedia.net.

Lissens presents EU data protection, IoT research

Sylvia Lissens, a Ph.D. student and teaching assistant at the KU Leuven Centre for Global Governance Studies in Belgium, presented part of her doctoral research comparing U.S. and EU data protection law at a doctoral seminar in Lyon, France, in December.

In her research, Lissens focuses on the internet of things (IoT) to examine how American and European law protects the personal data that machines increasingly collect. She has a law degree from KU Leuven and a background in criminology, so is especially interested in government access to personal data, which has been a sticking point in trans-Atlantic privacy negotiations.

Looking at the emerging norms in state legislation in the United States, on the one hand, and at developing data protection jurisprudence in the European Union, on the other hand, Lissens hopes to identify points of convergence and divergence that might smooth the way forward for agreement over data flows.

In Lyon, Lissens presented findings from the EU leg of her research at the International Doctoral Seminar in European and International Human Rights Law, hosted by the Université Jean Moulin Lyon 3. She explained how the broad range of data collected by devices in our homes, from phones to refrigerators, will confront national security and international trade regimes with new challenges in the protection of personal privacy.

Comparative law is among Lissens's teaching responsibilities at KU Leuven. She joined my Comparative Law class by Zoom this semester to provide an EU perspective on contemporary European legal issues. Students' experience was greatly enriched by both her experience as a professional and her informed perspectives as a Belgian voter. I'm privileged to serve on Lissens's dissertation committee.

Malaysian court upholds civil liability for security firm after employee-bodyguard shot, killed own client

With attenuated liability theories arising from contemporary gun violence proliferating—in lawsuits against parents, schools, sellers, and government—a case of vicarious liability for gun violence in Malaysia caught my attention.

In October 2022, the Malaysian Federal Court affirmed a liability award to a shooting victim against the security firm that employed the shooter.

In 2016, businessman Ong Teik Kwong, whom police investigated for ties to organized crime but never charged, was in a car in George Town, Penang Island, Malaysia, when he got into an argument with his bodyguard, Ja'afar Halid. Halid shot and killed his client Ong, then proceeded to shoot seven other people, killing two.

One of the surviving shooting victims was the plaintiff in the instant case, Mohamad Amirul Amin Bin Mohamed Amir. A news videographer for Radio Televisyen Malaysia, Amirul was passing on a motorcycle and stopped to aid one of the victims. He told the courts that he did not know Halid was armed. Halid shot Amirul. Star TV News reported the lower court outcome in 2019.

Halid was tried, convicted and sentenced to death by hanging. I can find no subsequent report of whether or when execution occurred.

Amirul meanwhile won compensation against GMP Kaisar Security upon a theory of respondeat superior, or vicarious liability running through employment. The Malaysian legal system is a hybrid of colonial common law and customary and Islamic law. The law of obligations with regard to respondeat superior is substantially a product of British common law, and the key test for respondeat superior is the same: An employer may be held liable for the acts of an employee within the scope of employment.

My torts class and textbook introduce respondeat superior in the study of negligence, when many theories of vicarious liability become salient. It's important for students to learn, though, that respondeat superior is not a negligence doctrine. It operates irrespective of culpability.

That said, it's often difficult for plaintiffs to prove respondeat superior liability when an employee commits an intentional act, especially a criminal act of violence. Criminal violence is not usually part of someone's job, so the employee-perpetrator acts outside the scope of employment.

That's what makes the Malaysian case interesting. On the one hand, as a bodyguard, Halid had one of those rare jobs in which committing an act of violence, even a murder, might come within the scope of employment. On the other hand, Halid killed the very man he was supposed to protect.

Those facts suggest that the case would fail upon the usual analysis. But the lower and higher Malaysian courts focused on the carrying of a firearm rather than on the act of killing. In Malaysia, unlike the United States, there is no right to bear a firearm. Licenses are attainable, but the system is restrictive.

Federal Court Judge Harmindar Singh Dhaliwal reasoned:

Now, Jaafar's actions may have been unauthorized by his employer but the pertinent question to ask is whether Jaafar's actions in unlawfully discharging his firearm and causing injury to Amirul was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable. On the facts of this case and for the reasons we have already stated, the answer must be yes. To put it in another way, Jaafar's wrongful act was not independent from the task he was employed to do.

Relying on a Canadian precedent, the court offered a further rationale that squares well with the scope of civil liability in American tort law.

The Supreme Court of Canada ... explain[ed] that vicarious liability is generally appropriately involved where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is a risk to another or to others within the range of apprehension.

The above-referenced cases arising from gun violence in the United States involve direct liability, not vicarious liability. They allege that the defendants were themselves negligent, and that their negligence proximately caused the later intentional shootings. The causal link is not easily proved.

Despite the distinction, there is a common concept animating the imposition of liability upon the attenuation of employment and upon the attenuation of causation. Scope of employment posits essentially that the pursuit of the employer's ends, if not the culpability of the employer, proximately resulted in the employee's injurious act.

All the same, the Malaysian Federal Court's conclusion would be difficult to reach on comparable facts in the United States. With gun possession a matter of license rather than right, it was easier for the Malaysian court than it would be for an American court to focus on the entrustment of the firearm rather than the use of it. As a matter of strict vicarious liability, rather than direct negligence, an American court would not be persuaded easily to effect the same shift in focus.

The case is GMP Kaisar Security v. Amirul, Civ. App. No. 02(f)-44-07-2021(P), [2023] 1 MLRA 99 (FCJ Oct. 18, 2022).

Chinese aid in foreign development, Taiwan's dwindling number of allies warrant Western concern

Honduras severed ties with Taiwan and doubled down on ties with China just days before House Speaker Kevin McCarthy met in California with the president of Taiwan.

The severing of diplomatic relations between Honduras and Taiwan is an important sign for global security, well beyond the bilateral significance. The People's Republic of China (PRC) has been executing a methodical campaign to isolate Taiwan from the world, a potential preliminary step to an assertion of control that would test the U.S. pledge to defend the disputed territory.

Chinese development policy is a fascinating subject; I take it up each year in one hour with my Comparative Law class.  Evidence abounds to support disparate theories on what the PRC means to achieve with its foreign aid packages. From well meaning humanitarian goals to Machiavellian world domination: it's anybody's guess what's being said in the highest levels of Beijing briefings. I'll paste below the reading list my class used this year to get a handle on this wide-ranging sub-subject. The discussion always is the best of the course.

Around the world, I have seen the vast reach of renminbi. The infrastructure projects alone are simply stunning. Chinese flags boast of telecommunication investment in distant and dusty towns in West Africa and South America. Bridges soar in Croatia and Montenegro; dams in Thailand and Sudan. Glassy government buildings adorn capitals such as Windhoek and Harare. And then there are the ports, from Togo to Sri Lanka to Peru. That's just a sampling of what I've seen with my own eyes.

A Dutch friend working in the aid sector in the Middle East was puzzled when I first asked for his appraisal of Chinese objectives. It's obvious, he opined. They just don't say it.

He and I were in the remote Indian Ocean island nation of the Maldives in March, where I witnessed Chinese-funded projects: a shining national museum, a bridge connecting the capital to the airport island across open ocean, and a massive new airport under construction. 

The Sinamalé Bridge, or China-Maldives Friendship Bridge, links capital Malé to Hulhulé Island.
RJ Peltz-Steele CC BY-NC-SA 4.0

Velana International Airport at left; the new Maldives airport under construction at right.
RJ Peltz-Steele CC BY-NC-SA 4.0

The Maldives National Museum, Malé, opened in 2010.
RJ Peltz-Steele CC BY-NC-SA 4.0

The list of countries that have severed ties with Taiwan upon PRC quid pro quo has grown so long that it's difficult to track, and countries in Latin America and the Caribbean are well represented. I was in Paraguay last year not long after it asked Taiwan for $1bn to remain friends. Typically of countries in the mix, Paraguay is trying to play both sides for the best deal, which, in the end, probably means just using Taiwan as leverage to get the best deal from the PRC. Heritage reported in late February that Paraguay was one of only 14 remaining countries, then, still maintaining ties with Taiwan. 

Last week, Honduras renounced that club. NPR contextualized the move:

Honduras had asked Taiwan for billions of dollars of aid and compared its proposals with China's, Wu said. About two weeks ago, the Honduran government sought $2.45 billion from Taiwan to build a hospital and a dam, and to write off debts, he added....

Taiwanese President Tsai Ing-wen said her government would not "engage in a meaningless contest of dollar diplomacy with China." ....

For decades China has funneled billions of dollars into investment and infrastructure projects across Latin America. That investment has translated to rising power for China and a growing number of allies.

In Honduras, it has come in the form of construction of a hydroelectric dam project in central Honduras built by the Chinese company SINOHYDRO with about $300 million in Chinese government financing.

Honduras is the ninth diplomatic ally that Taipei has lost to Beijing since the pro-independence Tsai first took office in May 2016.

Taiwan still has ties with Belize, Paraguay and Guatemala in Latin America, and Vatican City. Most of its remaining partners are island nations in the Caribbean and South Pacific, along with Eswatini in southern Africa.

As Reuters put it in a headline yesterday, "US, Taiwan seen powerless to stem island's diplomatic losses in Latin America."

When Taiwan President Tsai Ing-wen met with McCarthy in California, she was on her way back from visiting Belize and Guatemala. Media reports tended to spin the meeting as a show of tough-on-China Republican policy. I rather assumed the view I heard from one commentator, that meeting in California was a way not to meet in Taiwan, thus, not to poke the dragon as Nancy Pelosi did.

Schooled on 1970s détente, I'm not much of an American imperialist, and these days, I'm not much of an American exceptionalist. But I do worry that we will one day wake up to find ourselves a quirky outpost of remnant democracy in a world of purported harmony under authoritarian paternity.

Here's your Comparative Law homework for two hours on law and development, including a discussion of the PRC.

Historical and theoretical:

• John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 Am. J. Comp. L. 457 (1977).

• Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45 Vand. J. Transnat'l L. 477 (2012).

Policy:

• Nic Cheeseman, Why There's a Case for Giving Foreign Aid to Authoritarian Regimes, The Conversation (Jan. 14, 2019).

Cheeseman here summarizes his remarks at a University of Birmingham debate in 2019. The whole debate is on video on YouTube, so you can watch it if you like (cued to Cheeseman, who spoke first).

PRC:

• Stephen Paduano, China's Investments in Rwanda Raise Familiar Questions About Debt, The Atlantic (Aug. 3, 2019)Deborah Brautigam & Meg Rithmire, The Chinese "Debt Trap" Is a Myth, The Atlantic (Feb. 6, 2021).

• Keith Bradsher, In Global Slowdown, China Holds Sway Over Countries' Fates, N.Y. Times, (Oct. 7, 2022).James McBride, Noah Berman, & Andrew Chatzky, China's Massive Belt and Road Initiative, Council on Foreign Relations (last updated Feb. 2, 2023).

If you'd like to dig into the numbers of Chinese development aid, have a look at the Global China Initiative at Boston University, especially its recent (Jan. 2023) policy brief.

The older BRI exists alongside more recent, if less extravagant, Chinese policies in the Global Security Initiative (GSI) and the Global Development Initiative (GDI).  The GSI and GDI raise analogous questions. If you would like comparable overviews, I recommend Michael Schuman for The Atlantic (July 13, 2022) on the GSI; Joseph Lemoine and Yomna Gaafar for New Atlanticist (Aug. 18, 2022) on the GDI (pro-Western perspective); and Professor Amitrajeet A. Batabyal for The Conversation (Aug. 4, 2022) on the GDI.

If you would like to learn more about the Chinese debt cancellations in Africa mentioned in the N.Y. Times article, there's a good and fairly even-handed article from Voice of America News (Aug. 25, 2022). One thing I have not given you here is any of the abundant statements from Chinese authorities and state-sponsored media defending Chinese policy; you can find them readily online yourself if you wish to get a flavor.

Conclusion:

Engage with this compelling perspective piece authored by a Harvard law student in 2018. Attorney Sabrina Singh is now an associate in the ESG group at Latham & Watkins in New York City.

• Sabrina Singh, Development Versus Anti-Development: Your Choice Matters, Harv. L. & Int'l Dev. Soc'y (May. 13, 2018).
  

A thanks to my Dutch friend (whom I'm not naming for security) for joining the class from the Middle East via Teams to discuss the delivery of humanitarian aid in conflict zones.

Expert explains Ecuadorean constitutional law

Ugo Stornaiolo Silva
(via Mises Institute)

An Ecuadorean lawyer and LL.M. candidate, Ugo Stornaiolo Silva thinks deeply about constitutional law and social and economic organization. Today he'll speak to my Comparative Law class.

The Constitutional Court of Ecuador has been garnering headlines in recent years with landmark rulings in areas such as indigenous rights, animal rights, and the rights of nature. I wrote here last summer about the successful habeas petition of a woolly monkey. That case followed a decision in which the court compelled the government to hear from indigenous people in the Amazon before authorizing extraction projects (before decision).

Last year Stornaiolo wrote a piece for The Libertarian Catholic (other work there) comparing the U.S. Supreme Court with the Constitutional Court of Ecuador. While the Ecuadorean court often appears to the world as a monolithic bastion of progressivism, the court in fact has an ideological divide that is analogous to, though different from, the conservative-liberal divide of the U.S. Supreme Court, Stornaiolo explained. He wrote,

[f]or instance, the Ecuadorian Constitutional Court textualist faction would be composed by President Salgado, and judges Nuques, Herrería Bonnet, Corral, with both Salgado and Corral filling in for Clarence Thomas position as the often-dissenting originalist in the Court, and Herrería Bonnet as more moderate, and its so-called "garantist" and "progressive" faction would consist of judges Grijalva, Ávila, Lozada, Salazar and Andrade, with Ávila and  Salazar filling in for Sonia Sotomayor’s position as the most activist judges, considering they have drafted some of the most controversial majority opinions of the Court in cases such that ruled on the constitutionality of cannabis recreational use, same-sex marriage, abortion and the criminality of teenage consensual sexual relations.

Stornaiolo's other work has examined comparative constitutional interpretation and the public-private divide. In the United States, Stornaiolo has been an academy fellow for the Heritage Foundation and a research fellow for the libertarian Mises Institute. I was fortunate to have Stornaiolo as a student in my American Tort Law class in fall 2022 at Jagiellonian University in Kraków, Poland, where he is studying for his LL.M. in a joint program with The Catholic University of America in Washington, D.C.

On Monday, March 20, Stornaiolo will join my Comparative Law class via Zoom to talk about the Constitutional Court of Ecuador and comparative constitutionalism in Latin America more broadly.

With fascinating developments in constitutional law afoot in Latin America and the Ecuador Constitutional Court driving the trends, Stornaiolo is a lawyer to watch.