Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.

Tuesday, November 29, 2022

Politics complicates football: Sympathy for ... Iran

As advertised, last week in Kraków, Poland, I had the great privilege to talk law, development, and the FIFA World Cup, with the group stage under way in Qatar.

Students and faculty of the American Law Scientific Circle (KNPA) and American Law Program at Jagiellonian University (Koło Naukowe Prawa Amerykańskiego TBSP UJ and Szkoła Prawa Amerykańskiego UJ), in collaboration with the Columbus Law School at the Catholic University of America, generously hosted me.  The talk kicked off a KNPA lecture series on "Law and Sustainability." My especial thanks to KNPA President Zuzanna Maszniew and her leadership team.

Photo © Zuzanna Maszniew, used with permission.
I was no John Oliver, to be sure, but I hope I stimulated thinking about the Gordian Knot of sport and politics and its implications for the Middle East and North Africa's place at the table.

Today, November 29, the United States will round out its play in the group stage in Qatar with a match against Iran, simultaneously with a high stakes stand-off between England and Wales. It's a big day, football fans.

Meanwhile, coming home to the States this week, I've been disappointed that Americans are not more in tune with the fascinating stories of geopolitics that are unfolding under the sporting tents of the Qatar World Cup. I admit, what's happening now in China dangles meritorious distraction. But with the USMNT facing Iran today, I want to mention one of the stories from Qatar that has gripped me.

In Iran's opening match with England last week, Iranian footballers refused to sing their own national anthem (BBC).  Stony faced, the players apparently chose to stand in silent solidarity with rights protestors against the government at home (N.Y. Times). Subsequently, Iranian authorities arrested a former national-team footballer known for occasional anti-regime sentiments (Guardian). At Iran's second match, the lads toed the line.

The anthem stunt was extraordinarily courageous. The players had to have known the disgrace they brought on the regime would have consequences when they go home, if not sooner.

Iranian footballers in 2018.
Mahdi Zare/Fars News Agency via Wikimedia Commons CC BY 4.0
More, though, I was struck by the reminder that people and their governments are not the same thing.

I'm a reasonably bright person, as people go, and I've seen a lot of the world. I come from an immigrant family myself. I grew up with a dear Iranian friend. Her stepmother taught me how to make tahchin, and her dad eagerly gave me his own well worn copy of All the Shah's Men. I shouldn't need to be reminded that people are just people, much the same around the world, just trying to make the best of things and find some joy where we can; and that it's wrong to ascribe the Machiavellian motives of states, whether others or our own, to their citizens. The protests now in China say the same.

Yet, I admit, I had followed the USMNT into the World Cup with something of a Cold War mentality, maybe because of the era when I grew up. Yellow ribbons, burning effigies, and "Death to America" chants all bounce around my long-term memory. I was determined that we and our Group B compatriots from England and Wales should beat Iran to make some kind of political point. A Miracle on Ice or Rocky IV situation.

The Iranian men's demonstration unsettled my unconscious prejudice. As a result, a part of me has been pulling for Iran in their last matches, even while, still, I had to favor the England squad, which features some of my beloved Manchester City stars, and Wales, which invokes Lasso-esque Wrexham affections. And even while, of course, I support my home USMNT today, there will be a part of me that wants to see the Iranian side make a pride-worthy showing.

Wednesday, November 23, 2022

Anti-corruption law violates business-owner privacy, EU court holds with myopic appraisal of transparency

A key European Union transparency law that allows watchdogs to trace corporate ownership to combat corruption has been struck down by the EU high court for compromising personal privacy.
EU beneficial owner registry map from Transparency International, 2021. Read more.
CC BY-NC-ND 3.0

I'm not a hard skeptic on the personal privacy prerogative of the EU General Data Protection Regulation. To the contrary, I've written that there's a lot to like about the emerging global privacy norms embodied in the GDPR, and, contrary to conventional wisdom, American social expectations, if not yet federal law, are converging with Europe's.

That said, the EU Court of Justice yesterday announced a profoundly problematic decision at the junction of public access and personal privacy. The blanket disclosure requirements of a key anti-money-laundering law can't stand, the court held, because they don't calibrate the public need for access with the privacy of natural-person business owners with sufficient precision, that is, as a function of necessity and proportionality.

Troublingly, the court characterized transparency norms, which are grounded in treaty and law more firmly in the EU than in the United States, as specially relevant to the public sector and not fully implicated in the private sector, in the context of business regulation.

The potential implication of this proposition is that access to information is limited to a requester learning "what the government is up to," to the exclusion of government oversight of the private sector. That's a cramped and problematic construction of access law that has dogged journalists and NGOs using the U.S. Freedom of Information Act (FOIA) for decades. Read more in Martin Halstuk and Charles Davis's classic 2002 treatment. As I have written in my comparative research on access to information, access to and accountability of the private sector is a problem of our times. We must solve it if we're to save ourselves from the maw of corporatocracy.

In my opinion, the CJEU decision fundamentally misunderstands and overstates the legitimate scope of data protection regulation with the effect of enervating transparency as a vital oversight tool. The impact is ironic, considering that data protection regulation came about as a bulwark to protect the public from private power. The court turned that logic on its head by using personal privacy to shield commercial actors from public scrutiny.

Unfortunately (for this purpose), I have my hands full in Europe (coincidentally) right now, and I lack time to write more. Fortunately, Helen Darbishire and the team at Access Info Europe already have written a superb summary. Their lede:

In a ruling that has sent shockwaves through Europe’s anti-corruption and transparency community, the Court found that the Fifth Anti-Money Laundering Directive (AMLD5, 2018) is too loosely framed and provides for overly-wide public access to the [ownership] registers without a proper justification of the necessity and proportionality of the interference with the rights to privacy and personal data protection of the beneficial owners.

A saving grace, Access Info observed, is that the court did not rule out transparency per se; rather, requesters will have to fight for access case by case on the facts, upon a properly narrowed regulation. In U.S. constitutional terms, it's like saying the one-size-fits-all law was struck for vagueness, but the regulatory objective still can be achieved under a narrower rule that works as applied. All the same, journalists and non-profit watchdogs are not famously well financed to fight for access on a case-by-case basis.

The case is No. C‑37/20 & No. C‑601/20 in the Grand Chamber of the CJEU.

With FIFA World Cup under way in Qatar, law students study sport and soft power, law and development

I'll be talking law, development, and the World Cup today in Kraków, Poland.

Thanks to the American Law Scientific Circle (KNPA) and American Law Program at Jagiellonian University (Koło Naukowe Prawa Amerykańskiego TBSP UJ and Szkoła Prawa Amerykańskiego UJ), in collaboration with the Columbus Law School at the Catholic University of America, for hosting me. This talk kicks off a KNPA lecture series on "Law and Sustainability" and begins at 3 p.m. CET at Pałac Larischa 203, Bracka 12.

I'll share some of the subject matter later.  Too much football to watch!

Wednesday, November 16, 2022

Qatar World Cup opens Sunday; meanwhile, Netflix series stokes embers of FIFA corruption scandal

I visited CONMEBOL HQ in Asunción, Paraguay, in October.
The South American angle on the FIFA corruption scandal
was engagingly fictionalized in El Presidente in 2020.

(Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.)

The sport world is abuzz over the Netflix documentary series, FIFA Uncovered, dropped November 9, just weeks before the FIFA World Cup opener in Qatar.

Many in Qatar are crying foul by filmmaker Miles Coleman for dredging up the ugliness of the FIFA corruption scandal, the focus of this docuseries, right now. But in an interview with renowned MENA scholar James Dorsey, Coleman, who created This Is Football for Amazon Prime in 2019, said he had no motive other than historical documentation. The timing of the release, Coleman said, is to bring football fans up to speed on the facts, so they can have informed conversations around the Qatar World Cup.

FIFA was rocked by scandal in 2015 when investigators led by the U.S. Department of Justice (DOJ) arrested top officials in Zurich and issued an avalanche of indictments. It was revealed then that corruption practically poisoned every part of world football governance, especially the bidding process for the world's top sporting event and its 2010 award to Russia for 2018 and Qatar for 2022.

Qatar narrowly edged out a bid from the United States in 2010, and disgraced FIFA President Sepp Blatter and his allies accused the United States of spite. Purportedly relieved of corrupt process, FIFA in 2018 awarded the 2026 World Cup to the joint bid of the United States, Canada, and Mexico.

When issues remain controverted, the docuseries presents all voices, Coleman told Dorsey. Indeed, the interviews are what makes the series worthwhile. Most of the story has been told already and well; I read and reviewed a number of books on the subject in the first pandemic summer. The docuseries, though, includes interviews with just about every key player, including Blatter himself, as well as Qatar bid chief H.E. Hassan Al Thawadi; "Qatar whistleblower" Phaedra Al-Majid, featured recently on Norwegian television; and Mary Lynn Blanks, romantic partner of corrupted American football official Chuck Blazer, who died in 2017.

Among the revelations, or at least confirmed suspicions, arising from the docuseries interviews is the fact, borne out by evidence besides his own testimony, that Blatter favored the United States rather than Qatar to host the 2022 World Cup. For all Blatter's failings, he was outmaneuvered by the colossal corruption machine that he helped to create. African Football Confederation President Issa Hayatou, a rival of Blatter's within FIFA, was key to securing the Qatari win. Hayatou was joined in his efforts by Jack Warner, president of the North, Central America and Caribbean Association, whose defection infuriated Blazer.

On Wednesday next week, November 23, at Jagiellonian University in Kraków, Poland, I will lead a discussion, "Law, Development, and the World Cup."  The program, in English, begins at 3 p.m. local time at Pałac Larischa 203, Bracka 12.

The World Cup opens Sunday night in Doha, Nov. 20, at 1100 US EST/1600 GMT, when Qatar hosts Ecuador in Group A. The United States MNT plays its Group B opener against Wales on Monday, Nov. 21, at 1400 US EST/1900 GMT. Poland plays its Group C opener against Mexico on Tuesday, Nov. 22, at 1100 US EST/1600 GMT/1700 CET.

Hat tip to Alessandro Balbo Forero, an alum of my Comparative Law class who wrote his final paper on football and Brexit, for alerting me to the drop of FIFA Uncovered. He's an Arsenal supporter, but nobody's perfect.

Here is the trailer for FIFA Uncovered:

And here is the Dorsey interview of Coleman:

Monday, November 14, 2022

In shadow of Ukraine war, webinar tells story of UN Genocide Convention, Polish-Jewish jurist Lemkin

The Jagiellonian Law Society and its President Elizabeth Zechenter, a visiting scholar at Emory, have put together another superb program prompted by the legal implications of the war in Ukraine.

"Lemkin, Genocide, and the Modern World" will run on Zoom in two parts, the first on December 1, 2022, at 12 noon U.S. EST, 1700 GMT, and the second in January, TBA. Free registration is required.

Here is a summary:

You are invited to a webinar on Raphael Lemkin, the UN Genocide Convention, and the likelihood of prosecution of the crime of genocide. Distinguished academics will discuss Lemkin and the Genocide Convention in light of the recent Russian aggression in Ukraine. Lemkin was Polish and Jewish and survived WWII. He had complex, divided loyalties and life experiences that influenced his work. He is often portrayed as a lone ranger, but he was effective in gaining support for his ideas, especially among women groups, who made the convention possible. Lemkin had a complex relationship with Stalin, which influenced his approach to the convention.

The Holocaust Encyclopedia has more on Raphael Lemkin.

Speakers include:

  • Professor Donna Lee-Frieze, Deakin University, Melbourne, Australia, a genocide studies scholar specializing in memory and aftermath; 
  • Professor Doug Irvin-Erickson, Carter School Director of the Genocide Prevention Program at George Mason University;
  • Professor A. Dirk Moses, Australian historian teaching in political science at the City College of New York, CUNY;
  • Professor Roman Kwiecien, Department of International Law at Jagiellonian University, arbitrator at the Permanent Court of Arbitration in the Hague) and the Court of Conciliation and Arbitration within the OSCE in Geneva;
  • Professor Marcin Marcinko, Jagiellonian University Law School, chair of the National Commission for Dissemination of International Humanitarian Law at the Main Board of the Polish Red Cross, and co-organizer of the Polish School of International Humanitarian Law of Armed Conflict.

The Jagiellonian Law Society hopes also to feature contributions from Ukrainian scholars, arrangements pending.

The program is a result of the collaboration of the Jagiellonian Law Society with support from the International Human Rights and Women Interest Committees of the American Bar Association; the New York State Bar, New York City Bar, and New Jersey Bar; the Department of Russian and East European Studies at the University of Pennsylvania; and the School of Diplomacy and International Relations at Seton Hall University.

Again, registration is free.

Friday, November 4, 2022

As Jacoby talk comemmorates Kristallnacht, Ukraine recurs in historical record of flights from oppression

An upcoming talk on Kristallnacht, a recent experience in the Paraguayan Chaco, and the ongoing war in Ukraine have me thinking lately about cultural and religious freedom.

In commemoration of Kristallnacht, award-winning Boston Globe columnist Jeff Jacoby will speak at the S. Joseph Solomon Synagogue of the Maimonides School in Brookline, Massachusetts, on Sunday at 7 p.m. The talk will be livestreamed.

Jacoby's father was the sole survivor of his family at Auschwitz. 

"He didn’t hate God for what he had lost and didn’t abandon the Judaism in which he had been reared," Jacoby wrote of his father. "On the contrary, he deepened it with observance, study, and prayer."

Last week I had the privilege of visiting Mennonite communities in the Chaco region of Paraguay. Mennonites arrived in Paraguay in three waves, circa 1875, 1930-32, and 1947. Each time, they sought refuge from regimes that wished to extinguish their religious freedom, if not their lives.

Restored "Koloniehaus" at Filadelfia, Paraguay
RJ Peltz-Steele CC BY-NC-SA 4.0
On a world map at the Fernheim Colony House in Filadelfia, I was struck in particular by one remarkable line tracing Mennonite migration. The journey ran eastward from Ukraine, then Austria-Hungary, to Siberia in 1908; then further east to China, turning south to Indonesia in 1927; then turning back westward across the Indian Ocean and isthmus of Suez, to Europe; and at last on to Paraguay to join the end of the second migration there in 1932.

Besides the astounding odyssey it represented, the line resonated with me both because of the current conflict in Ukraine and because my own grandfather's Jewish family fled what is today western Ukraine at about the same time.

Map at the Filadelfia Mennonite Museum,
similar to the one at the Colony House

RJ Peltz-Steele CC BY-NC-SA 4.0
with no claim to underlying work
As has been widely reported, one Russian strategy in the present war in Ukraine is the forced relocation of Ukrainians, especially children, to Russia, whether to be given passports and politically and culturally Russified, or, in the case of dissenters and combatants, to be condemned and disappeared in remote parts. The strategy is not new.  Just before the Russian invasion of Ukraine in February, I wrote about the forced relocation of Polish ethnic minorities, such as the Lemkos, from western Poland to Soviet Russia in 1947.

The parallels are not coincidental.  The Mennonites fled increasingly unstable Austria-Hungary for Russia before the outbreak of World War I. Then, scarcely a decade after the Russian Revolution, rising nationalism rendered even Siberia inhospitable, prompting the exodus of the late 1920s. After World War II, Mennonites remaining in an eastern Germany about to be gifted to the Soviet Union departed in another migratory wave, in 1947. They were not alone; justifiably afeard Christians of other sects departed as well.

Engrossed in the map in Paraguay, I muttered something unkind about Putin. Standing nearby, Fernheim archivist Gundolf Niebuhr said quietly, "History repeats itself."

Niebuhr and I talked about the complex relationship of the contemporary Mennonite Paraguayans with their Latino and indigenous neighbors.  They work closely together, literally, on farms, in schools, and in governance.

But the legacy of repeatedly fleeing oppression, Niebuhr told me, is that even in prosperous and peaceful times, people are dogged by a lurking anxiety over the inevitable impermanence of the idyll. To look around, the Mennonites and their partners have defined the unique cultural identity of the human Chaco. Yet are the Mennonites still only visitors? Will the day come when Asunción says, assimilate, or else? And it will be time to move on again.

Struggle and perseverance are enduring themes in Jewish identity. The former seems inescapable, as expressions of antisemitism abound. Hate simmers now in the Twitter scandals of Kyrie Irving and Kanye West.  Last week, mourners marked the fourth anniversary of the Pittsburgh synagogue attack. Yet the Jewish tradition teaches that anxiety is counter-productive. God will light the way, as always he has. That seems to have been the remarkable faith walk of Jeff Jacoby's father. Still, there are scarce few among us who do not struggle to eschew fears and doubts.

The Jewish people have a strong claim to unrivaled familiarity with persecution. But assimilation and expulsion of the other seems well ingrained in the human mode of operation, regardless of the nature of the otherness. An elder of my Christian church reminded me yesterday that being Christian is not supposed to be easy. The "Good News" might offer salvation, but leisure and luxury are not part of the methodology, at least not in this life.

I live without fear of being alienated in, or exiled from the only home I know. That is a blessing. All of us possessed of that blessing owe open hearts to anyone who loses it, whether in Pittsburgh, Paraguay, or Ukraine.

Wednesday, October 12, 2022

'Behind Bars': Petroff article explains how secrecy shields private prison labor from public scrutiny

Alyssa Petroff, a judicial law clerk at the Supreme Judicial Court of Maine, has published Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool in the new volume 4, number 2, of The Journal of Civic Information.

In a foreword, Journal Editor David Cuillier, professor of journalism at the University of Arizona, wrote,

Alyssa Petroff educated me on the exploitative private for-profit prison complex in my home state of Arizona—shrouded in secrecy because of a public records law interpreted in favor of corporations. I was astounded by her research findings.... She has a great career ahead of her, based on the eye-popping revelations in Behind Bars....

An Arizona native and 2022 law school graduate, Petroff started work on the article with a paper in my Freedom of Information Law class. Her finished work won the 2021-2022 student writing competition of The Journal of Civic Information, an honor co-sponsored by the Brechner Center for Freedom of Information and accompanied by a $2,000 cash prize.

Here is the abstract:

Prisons run by private corporations in the United States have at hand a pool of individuals who are, by law, required to work while they are incarcerated. This article examines the secrecy behind the use of inmate labor, including on-the-job injuries  sustained by prisoners, focusing on the state of Arizona as a case study. Ultimately, the  article recommends that states create oversight boards of private prison systems or allow private prison records to be accessible through already existing public records laws.

Attorney Petroff was a student also in my Comparative Law class. So I benefited immensely and from her presence and participation, ceaselessly inquisitive and gracious, in law school. I share Professor Cuillier's enthusiasm for her budding career as she cuts her teeth in judicial writing at the Maine high court.

The article, again, is Alyssa Petroff, Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool, 4:2 J. Civic Info. 1 (2022).

Friday, October 7, 2022

Reversal in eldercare case highlights limits of qualified immunity, low injury threshold of intentional torts

Boston police officer assists an elderly pedestrian in 2014.
(Alex Klavens CC BY 2.0 via Flickr)
A dispute over elder care occasioned treatment of qualified immunity and a range of tort theories by the Massachusetts Appeals Court yesterday.

Gallagher v. South Shore Hospital arose from an apparently mismanaged effort to investigate and redress a report of elder abuse; the report proved unfounded. The plaintiff caretaker and elder man alleged that a police officer and state agent entered their home without sufficient suspicion or warrant and removed the man from the home, and that a hospital then held and tested the man for five days against her and his will.

Most of the court's opinion comprised blow-by-blow facts and the Fourth Amendment analysis. However, the court opined as well on a range of common law tort claims against the defendants: a police officer, a state-contracted elder service agent, and South Shore Hospital, Inc., for trespass, false imprisonment, and battery. The police officer defended on grounds of qualified immunity, inter alia.

In proceedings on various motions, two trial court judges awarded summary judgment to all defendants. The trial courts held the state actors protected by qualified immunity and the tort claims flawed.

In the estimation of the Appeals Court, the trial courts erred. The Appeals Court reversed and remanded as to all defendants, finding that live questions of fact precluded the summary judgments. In my estimation, the error on qualified immunity was informative, and the errors on tort theories were egregious.

In articulating the qualified immunity theory, the police defendant and eldercare agent pointed to a concurrence by Justice Kavanaugh in a 2020 U.S. Supreme Court case, Caniglia v. Strom, in which the Court held unanimously that a warrantless home entry and firearm seizure violated the Fourth Amendment. The Appeals Court explained:

[Officer] Pompeo argues that the facts at bar are similar to the example of an elder welfare check that Justice Kavanaugh described in his concurring opinion in Caniglia. In his example, "an elderly man is uncharacteristically absent from Sunday church services and repeatedly fails to answer his phone throughout the day and night. A concerned relative calls the police and asks the officers to perform a wellness check." Justice Kavanaugh stated that "[o]f course," in those circumstances, the officers may enter the home. Pompeo argues that she reasonably thought [elder plaintiff] LaPlante was injured or in imminent danger on June 25 because no one responded to the doorbell, knocks, or telephone call, and because [caretaker] Gallagher had left LaPlante in the car with strangers two days earlier.

The trial court found these facts to constitute the requisite exigency to enter the home. The Appeals Court disagreed.

The facts in this case are nothing like the hypothetical Justice Kavanaugh described. The implication of the hypothetical is that the elderly man lives alone. LaPlante did not. Moreover, Gallagher and LaPlante were not out of touch or nonresponsive, as was the elder in Justice Kavanaugh's hypothetical. Pompeo and another elder care worker had seen LaPlante two days earlier ... and his appearance was not a cause for concern....

Further, even if Pompeo could see LaPlante on the couch [through a window], neither he nor Gallagher had any obligation to answer the door or respond to the knock. "When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak." Kentucky v. King (U.S. 2011). A jury could find that Gallagher's lack of response to a knock on the door when she was not expecting visitors, and her absence from the room in which LaPlante was sleeping, did not give rise to a reasonable belief by Pompeo that LaPlante was unattended and suffering an emergency.

In an age in which the public is increasingly skeptical of police qualified immunity, the analysis is refreshing for taking seriously the doctrine's objective check on police perception. The likely failure of qualified immunity here leaves the state defendants vulnerable to the civil rights and tort claims on remand.

On the tort claims, the trial courts erred egregiously in dismissing for perceived want of injury. My first-semester, 1L Torts students can tell you that none of trespass, false imprisonment, nor battery requires physical injury, in the sense of impact. These intentional torts all balance a higher culpability state with a lower injury threshold. The lower threshold rests upon the theory that tort objectives such as preserving the peace and averting vigilantism justify recognition of insults to personal integrity or honor, even in the absence of physical or pecuniary loss. The notion is as old as the Roman law of iniuria.

As to trespass, the Appeals Court opined, quoting Massachusetts high court precedents, "It has long been the 'general rule' in this Commonwealth that 'possession of real estate is sufficient to enable the parties in possession to maintain an action against a stranger for interfering with that possession.' Proof of injury is not required; 'the action is founded merely on the possession.'"

Similarly, false imprisonment is accomplished by the plaintiff's awareness of confinement, and battery by an "offensive," that is, non-consensual nor justified-by-social-contract, touching of the plaintiff. In false imprisonment, "[i]t is enough if a person's personal liberty is restrained," the Appeals Court opined. And even if the elder man, not legally competent at the time, "was not aware of his confinement, Gallagher, his proxy, was." The court further relied on, while expressly not adopting, similar sentiments in the Second Restatement of Torts.

On each theory, the plaintiff is permitted to prove compensable loss above and beyond the minimal, prerequisite condition of injury. The caretaker alleged that the elder man in fact deteriorated physically while in hospital care, evidenced by an enlarged bedsore and diminished mobility. And the facts established to date indicate that the elder man had been subject to blood and urine testing in the hospital without the consent of the caretaker, his only proxy: a more-than-de-minimis, physical insult.

The same reasoning that unwound qualified immunity negated any defense of emergency on which the trial courts relied to dismiss the tort claims as a matter of law. And the hospital claimed no emergency over the elder man's five-day residency, such as would have justified failing to seek the caretaker's consent.

Finally, I was struck by a footnote the court dropped that speaks not only to the sad facts of this case, but to the broader context of our present, vigorous public policy discussion about the role of police in society and our infrastructure for social services, such as physical and mental healthcare. The court lamented:

[The eldercare agent who precipitated investigation and police involvement,] Bessette[,] and Gallagher were strangers to one another. Perhaps if Bessette had agreed to assist Gallagher by sitting with LaPlante for an hour while Gallagher did grocery shopping, she could have accomplished her investigatory purpose—allowing her to speak with LaPlante alone— and we might not have a case at all. Pasqualone v. Gately (Mass. 1996) (if officer had asked gun owner to voluntarily turn over his weapons after his license was revoked rather than demand them with considerable show of force, we might have a different case).

Recently, my wife and I read in the New York Times Magazine about the "viral nightmare" that exploded at Arizona State University from students' feud over the "multicultural safe space," fueled in no small part by the university's hyper-formalist response.

"If only someone had sat them down and made them listen to each other ... ," my wife sighed.

The instant case is Gallagher v. South Shore Hospital, Inc., No. 21-P-207 (Mass. App. Ct. Oct. 6, 2022) (temporary posting). Justice Vickie L. Henry wrote the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Sullivan.

Thursday, October 6, 2022

Upcoming NFOIC Summit features access all-stars


Access-to-information (ATI, RTK, FOI) enthusiasts are invited and encouraged to attend the online 2022 summit of the National Freedom of Information Coalition on October 18-20.

My FOI seminar class and I will be there.

From the summit home page at Whova, this year's program "will include two hands-on training seminars and over a dozen of sessions this year. Hear real stories from real people, learn the best approaches to enforcing FOI Laws, examine the public's right now in the era of polarization, and more."

Summit participants include experts and champions of transparency, open government, and First Amendment rights. They also include journalists, public employees, govtech and civictech individuals, and anyone who are interested in democracy and accountability."

Speakers include (but are not limited to) some heroes of mine in the academy, notably David Cuillier, University of Arizona; Daxton "Chip" Stewart, Texas Christian University; A, Jay Wagner, Marquette University; Margaret Kwoka, Ohio State University; and Amy Sanders, University of Texas at Austin.

The lineup also features some FOI legends who have worn many hats, including Frank LoMonte, now at CNN and most recently executive director of the Brechner Center; Michael Morisy of MuckRock; Colleen Murphy of the Connecticut FOI Commission; Tom Susman of the American Bar Association and previously of Ropes & Gray; and Daniel Libit, founder of The Intercollegiate and Sportico and tireless advocate for accountability in college athletics.

This year's agenda covers ORA/OMA litigation and enforcement, college athlete publicity rights, messaging apps, doxxing, law enforcement video, legislative transparency, and much more.

I also look forward to seeing the latest research, which wins consideration for publication in the Journal of Civic Information (for which I'm privileged to serve on the Editorial Board).

Registration is affordable and online here. #FOISummit22.

If you've read this far, you might be interested as well in a free public series of online classes recently announced by the New England First Amendment Coalition (NEFAC), "Open Meeting Law: How Newsrooms Respond to Executive Session Secrecy."

Wednesday, September 28, 2022

Proposed Biden rule would try again to compel airline pricing transparency; it worked out so well last time

President Biden has his own plane.
(U.S. Mission photo by Eric Bridiers CC BY-SA 2.0 via Flickr)
The U.S. Department of Transportation (DOT) has proposed a rule to refresh pricing transparency in the airline industry.

According to a DOT press release: "Under the proposed rule, airlines and travel search websites would have to disclose upfront—the first time an airfare is displayed—any fees charged to sit with your child, for changing or cancelling your flight, and for checked or carry-on baggage." 

For me, the new rule can't happen soon enough. At the same time, I'm doubtful we'll see much change in the opacity of the airfare market.

I'm a libertarian. But in America, libertarianism is too often confused with a radically absolutist version of laissez-faire capitalism. Libertarianism rather is about the virtues of a free market. And free markets depend on conditions that don't naturally tend to exist in the real world, including a free flow of information between buyer and seller—that is, transparency. Free markets require regulation to ensure that they remain free.

The airline industry, especially since it moved to online sales, is case in point. In the online marketplace, customers are attracted by low upfront prices. Airlines found that sales improved when the upfront price was lowered by moving some of the fare, especially bag-check costs, to add-on fees later in the purchase transaction. Southwest famously resisted bag-check fees and has capitalized on its exceptionalism, though not without costs

In the usual purchase transaction, the low upfront price is too attractive to resist. And competitors' add-ons are not always apparent until the customer has sunken too much time and money into the booking to look back. Indeed, Delta does not even allow customers to prepay bag check, so fliers are not confronted with the bag-check add-on until the day of departure.

Dollars are not the only costs that airlines can conceal from customers doing online price comparison. Inconvenient routing with multiple and lengthy layovers can cost fliers time and money down the line. Early morning and late night flight departures and arrivals can significantly increase airport transfer costs, besides risking personal security and inducing exhaustion. Seat availability can be limited, making flying literally painful for someone six-foot-five or weak of bladder. 

Negotiating these options can be grueling for the consumer, and the market can seem ungoverned by logic. For me, it is not unusual to take days, at hours per day, sifting and testing the market to get the best deal on an air itinerary. In a recent search process, I found, not atypically, that I could fly from city A to city B to city C for less than it cost to fly from city A to city B, which was my actual destination, because direct service is more desirable. But buying the cheaper fare and leaving the airport at city B is called "skiplagging," or "hidden city ticketing," and airlines can be nasty about enforcing their prohibition on it.

On the one hand, I respect the airlines' free-market discretion to charge a higher price for a direct flight than for a less desired routing. On the other hand, there is a confounding absurdity to the idea that I would find myself at home in city B, yet be obligated to board a plane to carry on to someplace I don't want to go. Courts have been hostile to airlines' efforts to penalize skiplaggers financially. But they won't stop an airline from zeroing out a customer's frequent flier miles or even banning the flier from the line.

Like radar detector technologists with speeding enforcers, airlines have played cat and mouse with private and public regulators. Search engines have become more sophisticated in allowing customers to specify parameters, such as bag checks and connections. But the providers vary in options and their efficacy. Kayak tries to help with bag-check fees; Expedia not as much. And the mere act of online price comparison might introduce costs; despite industry denials, there is some evidence that consumers trigger price increases by repeating searches on Kayak and Google.

The search engines anyway can only sort data that the airlines provide, and they are not always forthcoming with details. Some airlines shun intermediary booking sites wholly. Airlines started gaming bag-check fees in 2008. Customer frustration finally precipitated disclosure regulation in 2011.

The regulation failed; bag-check fees are not easy to find. At Frontier and Spirit, the pricing is variable, so a shopper must enter data about a specific flight to get a number that allows price comparison. Meanwhile, bag-check fees have extended to an array of options. United is among airlines that now charge for a carry-on bag, and JetBlue charges for overhead bin space.

Add to the mix that JetBlue and Spirit announced their merger in 2022, even as JetBlue defends its partnership with behemoth American Airlines in litigation with the Justice Department (DOJ). Fewer carriers never results in improved transparency or lower prices for customers. Anti-competitive conglomeration is a natural market tendency, and healthy to a point, but it must be counterbalanced by thoughtful and vigorous antitrust regulation.

Even if DOJ is successful in the present antitrust litigation, the success will be a drop in the bucket of an industry that already is far too monopolized. The United States has nothing like the peanut airlines that blanket Europe. There are legitimate reasons for that deficiency, for example, our larger land mass. But there are plenty of illegitimate reasons, too, including monopoly by air carriers and monopoly in secondary markets, such as airports, baggage handling, and the transportation infrastructure that supports transfers.

The proposed rule announced by the Biden Administration is better than nothing, if it is promulgated intact. But the rule barely scratches the surface of what's needed to move the airline industry into a truly free market, in which consumers have a fighting chance. Extrapolating from past efforts to compel the disclosure of bag-check fees, it's safe to predict that the airlines already are one step ahead, and little will change for the consumer's experience.

A free market is a transparent market with manageable entry barriers. Consumers should be able to compare prices head to head for the same services. The internet should have facilitated the free market and leveled the playing field for buyers. Instead, weak regulation has let industry run amuck and obfuscate pricing. Absolutist laissez-faire capitalism is otherwise known as corporatocracy.

 —

Presently, I'm using two different modalities to try to pursue penalty fees from airlines for flight delays I experienced in the summer under European Union regulatory jurisdiction. When I have outcomes to report, I'll blog about it.