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.

Monday, August 1, 2022

Tortfeasor Parking Only

I'm not sure what's happening in the illustration on this sign, but it sure looks like a tort.

Photo near Vista do Rei, São Miguel, Azores, by RJ Peltz-Steele, CC BY-NC-SA 4.0. HT @ Chris Becker.

Sunday, July 31, 2022

Oh brings dispute resolution skills to UCLA

Dean Oh selfie in his virtual office
(© Hyun C. Oh, licensed exclusively)
Hyun Cheol Oh, my friend and former student, has joined the higher ed ranks as an assistant dean of students at the University of California Los Angeles (UCLA), I am immensely proud to report.

Dean Oh is a 2010 alumnus of UCLA, where he earned a bachelor's in international development studies, and of the law school where I work, where he was the founding president of the campus chapter of the Asian Pacific American Law Student Association (APALSA). He also holds a master's in education, culture, and society from the University of Pennsylvania. In his 2014 master's thesis, Multiculturalism in the Republic of Korea, Oh examined approaches to multiculturalism in South Korean civic education.

At UCLA, Oh is putting his legal training to work, specializing in dispute resolution within the offices of the dean of students and of student conduct. Oh lives in Los Angeles with his family, which includes his better half, the profoundly gifted pianist Inhyun Lee.

The Bruins are lucky to have Dean Oh on their team.

Saturday, July 30, 2022

Rats reveal human history, sometimes set its course

RJ Peltz-Steele CC BY-NC-SA 4.0
A rat extermination program is well signed on the islands of the Azores.

As a tort lawyer, I can be a little obsessed with signs, especially warnings. So I was struck by the abundance of these signs on the islands of the Azores, specifically São Miguel, Terceira, and Pico, where I spent some time this month. The signs warn not to remove bait traps loaded with lethal rodenticide and not to litter, such as might provide food for rats.

Being a key port in the European age of discovery, the Azores are inextricably bound up with the history of human exploration and expansion. A remarkably successful species, rats are a part of that history, because they go where we go. The Azorean bat is the only native land mammal of the Azores. But people long ago brought more, including hedgehogs, rabbits, cats, and the islands' iconic cows, all besides, of course, rats.

The Azorean bat is found in dry forests. In contrast,
I am found here in the much wetter Reserva Florestal
Natural Parcial do Biscoito da Ferraria, on Terceira.
(Photo © Emma Falk, licensed exclusively.)
Unfortunately, the rats are now spreading a potentially fatal pathogen, leptospira, which threatens people and animals in the Azores. So officials have set about efforts to reduce the rat population.

There's been an abundance of research sequencing rat DNA to study the history of human exploration. For example, Gabriel, Mathias, & Searle (2014) studied rats in the Azores specifically. There are books on the history that rats and people share: Anthony Barnett's The Story of Rats (2002) and the New York City-focused Rats (2005) by New Yorker contributor Robert Sullivan. As the latter book suggests, rat research also informs contemporary urban development. Canadian "rat detective" Kaylee Byers wrote a fun first-person narrative for The Conversation (2019) on the value of "23andme" for rats.

Rats have a fan club.

The signs in the Azores reminded me in particular of a superb episode of the Throughline podcast in the spring, "Of Rats and Men," which well summarized the subject.

Friday, July 29, 2022

Charitable immunity does not protect diocese from claims of sexual assault in 1960s, high court rules

St. Michael's Cathedral, Springfield, Mass.
(John Phelan via Wikimedia CC BY-SA 3.0)
Charitable immunity does not protect Catholic Church leaders in Springfield, Mass., from civil allegations of sexual assault, but it does shield them against liability for negligent supervision, the Massachusetts Supreme Judicial Court ruled yesterday.

Pseudonymous plaintiff John Doe alleged sexual abuse, including a "'brutal[] rape'" while being held down by fellow altar boys and priests in the 1960s. Doe alleged that he first recovered memory of the abuse in 2013; he first complained to the church in 2014.

After investigations, the church offered the plaintiff an apology in 2019, and in 2021, he sued over both the abuse in the 1960s and the handling of the complaint since 2014. The Superior Court denied the defendants common law charitable immunity and ecclesiastical abstention under the First Amendment, prompting interlocutory appeal. The Supreme Judicial Court declined any First Amendment question as premature in advance of final judgment.

By statute, Massachusetts curbed charitable immunity to a $20,000 quantitative limit ($100,000 in medmal) in 1971. But the statute is not retroactive to Doe's 1960s claims.

The purpose of common law charitable immunity, the court reasoned, is to protect charitable actors "from the burden of litigation and trial." But in the context of sexual assault allegations, the defendants cannot be said to have been performing a charitable function. In contrast, "negligent supervision ... is exactly the sort of allegation against which common-law charitable immunity was meant to protect," for it implicates managerial functions in the selection of subordinates.

The case arises in the home state of the Boston Globe Spotlight team, whose 2002-04 investigation surfacing church abuse became the subject of a 2015 feature film. The bishop named in the instant suit as a perpetrator, who died in 1982, was implicated in the Spotlight investigation.

The case is Doe v. Roman Catholic Bishop of Springfield, No. SJC-13219 (posted temporarily). Justice David A. Lowy wrote the unanimous opinion.

Scholars seek to stimulate socio-legal studies in Africa

At the global meeting of the Law and Society Association (LSA) in Lisbon earlier this month, scholars in the collaborative research network dedicated to Africa ("CRN 13") agreed to move forward with an independent Africa Law & Society Network.

Working alongside but apart from CRN 13, the "Africa Law & Society Network" has a web page and for the time being claims a mailing address at the Centre for Law and Society at the University of Cape Town (UCT). The aim, in time, is to build a vibrant organization that is representative of scholars throughout the continent. 

The network thus hopes to stimulate the coordination of socio-legal studies by African scholars in two respects in which previous efforts have floundered: to have African scholars charting their own direction for research, rather than being coordinated by Western-dominated organizations; and to decentralize and diversify leadership, overcoming the tendency to lean exclusively on South African institutions.

CRN 13 leaders at the meeting sported the slogan "#CiteAfricanScholars" on T-shirts. Citation to African scholars often is limited by structural constraints that Western researchers might not even be conscious of, such as the simple availability of the work. With limited institutional resources, African academics cannot always enter their works into the subscription databases on which researchers often over-rely. And academic writers not backed by well known institutions are disproportionately unable to negotiate copyright and access terms with publishers that favor long-term pay walls over open source.

Professor Dee Smythe (LSA, UCT, LinkedIn) addresses the CRN 13 meeting in Lisbon.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

 

Lawsuit alleges excessive force against federal immigration detainees held near public law school

Warning: indecent language.

Latino detainees of the Bristol County House of Corrections, which is located just three-quarters of a mile from the University of Massachusetts Law School, sued the county sheriff and Immigration and Customs Enforcement, alleging serious physical abuses.

Filed in April, the complaint, stating Bivens and § 1983 claims for excessive force, is available from the federal district court docket at Court Listener. The factual allegations detail incidents of violence and some not so flattering quotations of officers, such as: "Shut the fuck up. You bitches are a bunch of immigrants without papers. You have no rights."

Sheriff Hodgson shakes hands with former President Trump
at a White House event recognizing sheriffs in 2019.

(Official White House photo by Joyce N. Boghosian via Flickr.)
Named in the lawsuit is Bristol County, Mass., four-term "tough on crime" Sheriff Thomas M. Hodgson. This lawsuit is not his first tangle with unsavory allegations.

A 2020 report by the office of Attorney General Maura Healey determined that authorities employed excessive force in violation of the civil rights of federal immigration detainees (press release). New Bedford, Mass., tort lawyer Betty I. Ussach has written letters to local media complaining of the high cost of defending Hodgson's style of criminal justice (EastBayRI, Dartmouth Week Today).

But in past years, Hodgson's name recognition has seemed to work a no-publicity-is-bad-publicity magic in his reelection bids. Hodgson faces a slate of challengers this year.

I wonder whether the geographic juxtaposition of the Bristol prison and the Immigration Clinic at the state's only public law school is not telling of state conflict-of-interest policy, which would complicate if not prohibit clinic litigation against state and local actors. 

Clinic director Professor Emerita Irene Scharf retired just one one month ago. She exited amid some turbulence over how and even whether the law school would take responsibility for existing clients. It remains to be seen what the clinic will look like under new management. Scharf and sociology and anthropology Professor Lisa Maya Knauer have labored diligently for decades on behalf of the immigrant Latino community in south coast Massachusetts. But university personnel at Dartmouth, Mass., far from the aegis of the "flagship campus" at Amherst, must tread lightly in politically sensitive matters, lest they jeopardize the very existence of the system's less favored locations.

The present lawsuit, Morocho v. Bristol County Sheriff's Office (D. Mass. filed Apr. 29, 2022), was filed by Washington, D.C.-based NGO Rights Behind Bars and signed by its Boston-based litigation director, attorney Oren Nimni. Nimni is a graduate of Northeastern Law and an adjunct professor at Suffolk Law. So let the record reflect that monied Boston private law schools can make grief for public officials, too.

Thursday, July 28, 2022

While Pope apologizes in Canada, U.S. reckons with legacy of federal Indian boarding schools

Children at Rehoboth Mission School, New Mexico
(from DOI report p. 39, credited: Hartog, C. (1910).
Rehoboth School [Photograph]. Indian mission sketches:
Descriptions and views of Navajo life, the Rehoboth Mission School
and the Stations Tohatchi and Zuni, 22. Gallup, N.M.: The Author.
Hathi Trust Digital Library)
The Pope's visit to Canada to ask forgiveness for the role of the Church has brought the tragedy of Indian boarding schools to light, but coverage has been thin on the U.S. legacy.

In the United States, Indian boarding schools were government policy and attempted a cultural genocide no less shamefully than the Church effort in Canada. This U.S. angle on the story hasn't been mentioned in my evening news the last few nights. But it was explicated by an Interior Department (DOI) report in May just this year and is being addressed in some media outlets (e.g., NPR).

The DOI report is just volume 1 in the ongoing investigation of the Federal Boarding School Initiative, "a comprehensive review of the troubled legacy of federal boarding school policies," launched in June 2021. A transmittal letter at the front of the report explained:

This report shows for the first time that between 1819 and 1969, the United States operated or supported 408 boarding schools across 37 states (or then-territories), including 21 schools in Alaska and 7 schools in Hawaii. This report identifies each of those schools by name and location, some of which operated across multiple sites.

This report confirms that the United States directly targeted American Indian, Alaska Native, and Native Hawaiian children in the pursuit of a policy of cultural assimilation that coincided with Indian territorial dispossession. It identifies the Federal Indian boarding schools that were used as a means for these ends, along with at least 53 burial sites for children across this system-with more site discoveries and data expected as we continue our research.

When I say "attempted cultural genocide," or "ethnocide," this isn't just me throwing around woke words. The DOI report detailed official policy dating to President Washington to "subdue[] the Indians" by assimilation, "helping the whites acquire desirable land." An 1803 memo by President Jefferson outlined a plan to relocate native Americans and push them into farming with the express aim that they would thereby fall into debt and have to cede their land. (And, I note, today still our corporate overlords are pushing all of us into asset ownership—homes, cars, cell phones—on the debt model rather than the capital model. You don't have to be native American for the strategy to make the rich richer and you poorer.)

Hundreds of thousands of children were taken from their families and sent to boarding schools often distant from their home communities. That generations of people were so traumatized explains a lot about the fragile social and economic state of reservation communities today.

In military school fashion, the children's every 24 hours in the boarding schools were regimented. Using quotes from contemporary accounts (notes and sources omitted here), the report recounted:

"The children are improved rather in their habits than in what they learn from books." For example, to teach them "obedience and cleanliness, and give[] them a better carriage," Department records detail examples of organizing Indian male children "into companies as soldiers, and the best material selected for sergeants and corporals." "They have been uniformed and drilled in many of the movements of army tactics."

The report explained the means and ends of the boarding schools with revealing perspective:

Systematic identity-alteration methodologies employed by Federal Indian boarding schools included renaming Indian children from Indian names to different English names; cutting the hair of Indian children; requiring the use of military or other standard uniforms as clothes; and discouraging or forbidding ... Indian languages, ... cultural practices, and ... religions. "When first brought in they are a hard-looking set. Their long tangled hair is shorn close, and then they are stripped of their Indian garb thoroughly washed, and clad, in civilized clothing. The metamorphosis is wonderful, and the little savage seems quite proud of his appearance."

"No Indian is spoken[:]" "There is not an Indian pupil whose tuition and maintenance is paid for by the United States Government who is permitted to study any other language than our own vernacular—the language of the greatest, most powerful, and enterprising nationalities beneath the sun."

Then there was enforcement for violating the rules, including the prohibitions on language and religious practice. Whipping was the preferred punishment for attempted runaways.

Indian boarding school rules were often enforced through punishment, including corporal punishment, such as solitary confinement, "flogging, withholding food, ... whipping[,]" and "slapping, or cuffing." At times, rule enforcement was a group experience: "for the first offense, unless a serious one, a reprimand before the school is far better than a dozen whippings, because one can teach the whole school that the offender has done something that is wrong, and they all know it and will remember it, while it is humiliating to the offender and answers better than whipping."

Conditions for even compliant children were less than optimal. Citing prior DOI investigations in 1928 and 1969, the 2022 report stated:

The Department has acknowledged "frankly and unequivocally that the provisions for the care of the Indian children in boarding schools are grossly inadequate." Rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in Indian boarding schools are well-documented.

Moreover, the children's labor was used to operate the schools, for example, the children's clothes were made by female students as part of their vocational training.

Lest the severity of these conditions be confused with mere norms of less gentle times, we might consider that schools, even in the 19th century, rarely had their own graveyards. DOI found 53 burial sites at Indian boarding schools, at least six unmarked.

U.S. Indian boarding schools have been examined thoughtfully in media outlets: The Atlantic, National Geographic (limited free), NPR, N.Y. Times, and Time (paywall).

There are books, too, of course: Ward Churchill's well regarded Kill the Indian, Save the Man (2004); the first-person Pipestone (2010) by Adam Fortunate Eagle; and the documentary compilation Boarding School Seasons (2000) by Brenda J. Child.

There are online resource collections at The National Native American Boarding School Healing Coalition and the Library of Congress.

My favorite media treatment in this area is a 2015 Radiolab segment, rebroadcast in 2018, "Ghosts of Football Past." Follow it up with a compelling reflection by Professor Justin De Leon.

EEOC withholds records in arbitration matters; corporate frustration with secret justice is ironic

Janet Dhillon
According to employers' lawyers, the Equal Employment Opportunity Commission (EEOC) is denying public access to investigation files in matters committed to arbitration, even while conceding that files in litigation matters must be disclosed under the federal Freedom of Information Act (FOIA).

Yesterday the Labor and Employment Law Practice Group of the Federalist Society held a teleforum with the provocative title, "Is the EEOC misusing the Freedom of Information Act to penalize employers that adopt mandatory employment arbitration programs?" Here is the description:

The EEOC is denying employers' FOIA requests for the EEOC's charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation. Our panel will discuss whether the EEOC's justifications for denying such FOIA requests are consistent with FOIA and other governing federal statutes. We will consider a number of related issues. What is the EEOC's basis for treating litigation and arbitration differently in responding to employers' FOIA requests?  How long has the EEOC been making this distinction between litigation and arbitration? In light of the increasing prevalence of employment arbitration, should employers challenge the EEOC's FOIA practices and, if so, how?

Speakers included EEOC Commissioner Janet Dhillon and Jones Day attorney Eric Dreiband.

I regret, I didn't make it. My guess is that the EEOC is denying access on basis of the various exemptions for law enforcement investigation records, besides deliberative process. Without having heard either side of the debate, my inclination, probably like Dreiband's, is to doubt seriously the viability of any asserted distinction between arbitration and litigation.

What I find compelling about the case, though, is less the effort at FOIA exemption and more the irony of corporations being stymied on transparency and accountability when mandatory arbitration is a choice of their own design.

I wrote just yesterday about the problem of arbitration superseding litigation as our principal means of dispute resolution. And the fact that arbitration happens in secrecy is a big part of that problem. In litigation, the tort system achieves the important objectives of norm-setting and deterrence, besides the anti-vigilantism I mentioned yesterday. Norm-setting and deterrence, in turn, avert tortious conduct by the same respondent and other actors in the future. Secret justice undermines these objectives. Even the same bad actor can persist in its misconduct without risk of punitive consequences.

I don't approve of selective opacity by EEOC. But there's a scrumptious hypocrisy in companies wanting transparency and accountability in public enforcement mechanisms while they jealously secret their own dirty laundry against the public functions of the courts.

Lisbon graffiti writer seeks internet access

I passed this graffiti in the Entrecampos area of Lisbon while attending the annual meeting of the Law and Society Association earlier this month (photo by RJ Peltz-Steele CC BY-NC-SA 4.0).

The text struck me as a curious coupling of "free expression" to excess and an unrealized "right to receive," or right of access to information and the internet.

It looks like someone tried to obliterate the middle section of the text, but as best as I can read it, it says, in whole: "I am a local artist in need of internet connection without any restriction. If you have a network that works and you [are] up for sharing, please text me the [user?] name, password and your approximate address to 969 158 614. In exchange, you(r) might get a poem."

I might have been better persuaded if the writer had asked in rhyme.

Wednesday, July 27, 2022

Grubhub drivers signed away right to sue, court rules

Haydn Blackey via Flickr CC BY-SA 2.0
Grubhub drivers signed away their right to sue on unfair wage claims, the Massachusetts Supreme Judicial Court ruled today.

Plaintiff Grubhub drivers complained that the company is stiffing them on minimum wages and tips under state law and, worse, retaliating against drivers who complain.

I have no knowledge of the validity of these claims, but I worry a lot about the exploitation of gig workers in our economy. This exploitation is a big slice of the broader problem of employers' over-classification of personnel as independent contractors to avoid having to provide fair wages and benefits. Sometimes employers cross the legal line and sometimes they don't; regardless, the effect of even the lawful leeway contributes to our glut of working people who cannot make ends meet, put us all at risk with insufficient insurance for healthcare and accidents, and spend so much on necessities as to have paralyzed American socioeconomic mobility. Our woefully outdated measures of employment fail to reflect this problem, which is why media pundits and Washington pointy-heads scrunch their faces in confusion over how we can have favorable job numbers and an "it's the economy, stupid" political crisis happening at the same time.

Collateral to labor exploitation, we have long had the problem of our court system being subverted by the supposed freedom to contract. At this point, we all know without even having to read the fine print that every terms-and-condition box we check, just like every product we liberate from shrinkwrap, binds us to arbitrate any disgruntlement and frees our adversaries from ever having to answer to us in the courts, which were designed for that very purpose. Many of us know furthermore that the terms of arbitration profoundly favor the respondent companies, both substantively, evidenced empirically by companies' overwhelming win rates, and, often, procedurally, by way of inconvenient venues, arcane procedures in contrast with small claims courts, and the burdens of transaction costs.  I've cited the definitive books on this subject by Nancy Kim and Margaret Jane Radin so many times, that, frankly, I just don't have the energy today to look up their URLs again.  Let's instead invoke the tireless Ralph Nader and his persistent admonition that we have undermined the Seventh Amendment, to which point I add humbly that anti-vigilantism is an important function of our civil dispute resolution system, and maybe we ought remember that in a society in which the least mentally stable among us apparently have ready access to firearms.

So it's the confluence of these two socio-legal problems that interests me in the present case, more than the merits. On the merits, the Grubhub complainants tried to work around their 2017 clickwrap agreement to arbitrate by characterizing themselves as a kind of interstate transportation worker that is exempt from the Federal Arbitration Act. But Grubhub drivers are not long-haul truckers. A for creativity, F for achievement. The court held that the drivers indeed signed away their right to sue.

F is likely to be the final disposition of the complaints in arbitration after remand, too.

You can read more in Archer v. Grubhub, Inc., No. SJC-13228 (July 27, 2022). Justice Dalila Argaez Wendlandt wrote the unanimous opinion (temporarily posted).  The case in Suffolk County Superior Court is no. 1984CV03277 (class action complaint filed Oct. 21, 2019).

The U.S. Chamber, dependable opponent of transparency and accountability, was among the amici on the prevailing side.  The Harvard Cyberlaw Clinic was among the amici for the workers. The office of Commonwealth Attorney General Maura Healey entered an appearance as amicus, but filed no brief. Healey's office sued Grubhub one year ago, alleging the company overcharged Massachusetts restaurants during the pandemic (complaint, press release). That case, no. 2184CV01719 in Suffolk County Superior Court, is pending currently on cross motions for summary judgment.