Tuesday, May 28, 2024

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)
 

Friday, May 24, 2024

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.

Thursday, May 9, 2024

Conference on workplace mobbing posts presenters

Niagara Falls, N.Y.
Carol M. Highsmith's America, Library of Congress,
Prints and Photographs Division, via Picryl
The Niagara Conference on Workplace Mobbing is taking shape.

Read more about the interdisciplinary conference at Niagara University, July 22-24, 2024, in the February announcement.  The conference website now features information about presenters and their work. Presenters include:

Dr. Ann Marie Flynn
Dr. Caroline Crawford
Dr. Emily Godbey
Dr. Eve Seguin
Gail Pursell Elliott
Dr. Janice Harper
Dr. Joseph Donnermeyer
Dr. Karen Moustafa Leonard
Dr. Kenneth Westhues
Dr. Peter Wylie
Prof. Richard Peltz-Steele
Prof. Robert Ashford

Dr. Rebecca Pearson
Dr. Qingli Meng
Dr. Walter DeKeseredy

As well, from the conference website:

Host of the conference is Niagara University, which dates from 1856, and which is meeting the challenges of the present century with extraordinary success. Its president, Rev. Dr. James Maher (theology), and its provost, Dr. Timothy Ireland (criminology), will welcome conference participants.

Among sponsors of this conference is the Edwin Mellen Press, which has published more books on mobbing than any other publisher. Professor Herbert Richardson (theology), Its founder and chief editor, now in his 93rd year, will address the conference on cybermobbing. In 1994, he was the subject of what is still the most famous case of academic dismissal in Canadian history. Dr. Eva Kort will also be on hand representing the Edwin Mellen Press.

A book by the late Joel Inbody, his factual analysis of being mobbed as a graduate student at the University of Massachusetts, will be released posthumously at the conference. His mother, New York educator Kimberly Lewis, will tell the story behind the book, and chronicle the events that led to Joel’s being slain by a gang of six law enforcement officers in New Mexico, in 2023.

Also sponsoring the conference is the Society of Socio-Economists. Its founder and leading light, Professor Robert Ashford, Professor of Law at the University of Syracuse, arranged for a session on academic mobbing way back in 2010, at the Annual Meeting of the Association of American Law Schools. Professor Ashford will address the conference on "Mobbing and Academic Freedom."

Registration remains open until July 1, or 100 participants, whichever comes first.  If you or a colleague wish to present as well as attend but are finding out about the conference only now, after the proposal deadline, reach out to Dr. Meng via the conference website to inquire.

Thursday, April 18, 2024

My writing is 'not very good,' and other reasons you can't get ahead in our not-really-a meritocracy

Pxhere CC0
A purported mentor once told me that probably I couldn't find a job in academics because my "writing is not very good."

'Tis the season when the law professor should be writing exams, yet is inundated and distracted by requests for recommendation letters to aid students on the career track. The distraction has caused me to ponder the futility of it all. Aside from the fact that my laboriously and meticulously drafted letters scarcely will be read, I'm saddened by how little a person can do to move the needle on ultimate potential in our supposed meritocracy.

In the 20-aughts, I was looking for my second job in academics, hoping to leave Arkansas and the curse of flyover country. My job search took five years. I lost count of how many applications I put in. It had to be more than there are law schools in the United States.

At some point, through a program I won't identify, as not to identify the person, I was paired with a mentor, an academic at a U.S. News "top 10" law school. After a couple of telephone counselings in which he told me nothing I did not know already, he suggested that maybe I needed to accept that I could not score a job because my "writing is not very good."

That was hurtful. Not because it wasn't a fair consideration to put on the table; it was. It was hurtful because it was his go-to conclusion, and rather the end point of the short arc that was his mentorship. There were countless other explanations for my struggle in the job market. He blew past all of them to rest on one: I suck.

Implicit in the suggestion was that he was at a top-10 school because he was so much better at the job than I. That's what hurt. And as I've matured in my career, I've come to realize how wrong he was.

I have a lot of experience now on the hiring side of hiring, almost three decades, at least in legal academics. And I've worked out a formula, though sometimes I tweak the apportionment, I feel like about describes the factors at play in getting a job, certainly in legal academics, but maybe anywhere:  

  • 60% privileges; 
  • 30% right-place-right-time; and 
  • 10% merit.

I'm not one of these "privilege walk" organizers who use loaded questions to make people feel guilty about socioeconomic advantages, and then to feel good about having felt guilty, and then relish telling everyone how privileged I now know I am, without actually doing anything to make the world better. But I do try to be conscious of privileges, especially the ones that I have and did nothing to earn.

I did not start at the bottom of the ladder. That I'm not a person of color, thus not subject to unfair biases manifesting as implicit assumptions about aptitude and potential, nor followed by security in stores and distrusting of police; that I went to K12 in reputable suburban school districts with dedicated teachers and was a child of two parents with college degrees: these factors have worked immeasurable benefits in my life, no thanks to anything I did.

I didn't start at the top, either. My divorced, usually single parents were college educated thanks to community-college access and the military. My family was the typical penniless-20th-century-immigrant story, and my parents and grandparents were victimized by ethnic discrimination with real socioeconomic consequences. I was able to go from public school to a first-rate undergrad with mostly private-schooled kids only because I earned a full scholarship.

On the inside of hiring in academics—I can tell another time cringe-worthy stories of before academics—I have seen it all, and candidate merit is only weakly indicative of outcome.

Because of the prevalence of liberal politics in academics—I do not suggest that preferences ordinarily run in these directions in the job market in general—I had a dean who announced the race (not mine) and gender (not mine) of an intended hire at the beginning of the search process; and I've had colleagues announce, also in advance of a search, that they would vote against any candidate of a certain race (mine) or gender (mine). I've likewise heard colleagues openly favor or disfavor candidates based on perceived sexual orientation (minority favored) and religion (belief disfavored). So to pretend that these factors are not in play, whether or not they are verbalized, would be willfully ignorant.

But race, gender, etc., are easy targets to exemplify pernicious discrimination. There are other factors that are more subtle, yet equally well effect socioeconomic exclusion, and thus indirectly race discrimination. And these factors are embraced by persons both liberally and conservatively minded.

When I was at a "tier 3" law school looking for a job, a colleague at a "tier 2" school—who knew I was looking for a job—asked me whether I might recommend anyone—not me—to fill an open position at her school. I was disqualified presumptively for the open position, because I did not do a judicial clerkship after law school. My colleague iterated this hiring expectation as if it were a self-evident sine qua non. She assumed I knew my place, and I was in it. One does not advance to tier 2 without a clerkship on the resume. "We prefer people who've clerked at the Supreme Court," she said breezily.

I didn't do a judicial clerkship after law school for various reasons. A big reason was that I was sick over the profound debt I had incurred paying for law school 100% with loans. 

I had turned down full scholarships at two other law schools to pay full freight at a top 10, because I hoped the top 10 would open doors the others could not. I could not see, after law school, how I could take a job in which I would struggle to make monthly payments, or worse, postpone them, with interest accruing. For the same reason, I didn't go back to journalism after law school, which had been my plan. I also did not have anyone in law or legal academics to advise me on the value of a clerkship—an opportunity, perversely, that one never has again—for my later career.

I was the beneficiary of many privileges at that time in life. Not among them was the luxury of choosing a clerkship or any job because it would be a smart resume builder, rather than because it would pay my bills. Not among them was having anyone to model a career in legal academics, or tell me what to do to get there. And yet, with no undergrad debt, I already was much better off than most of the students I teach now. I did not yet have a family to take care of. I was able to put every spare dime from my attorney earnings into paying off my debt.

My top-10 choice paid off some, because I would not otherwise have scored my first job in academics. A key faculty player in hiring had gone to the same law school I did. The hiring school was in urgent need of an immediate start, and I was willing to quit my job and move halfway across the country at Christmas. The hiring school was especially vexed over poor student writing skills, and I was a former journalist and capable copy editor. There it is: 60% privileges, 30% right-place-right-time, and 10% merit.

Yet I would be limited thenceforth by not having clerked, and by other, similar factors. I never volunteered abroad, as many aspiring academics do. I wanted to—because of my family ties, a passport was a privilege I did have—but, again, I had to work 50 weeks per year to pay on my debt.

At my attorney job, I had little to no mentorship; it was all about billable hours. I had no role models to show me how to navigate in that world. I had no business contacts; no matter how hard I worked, I never would have made partner. The media lawyer I worked for when I started left for an in-house position after a year, and I was reassigned to the grind of mass-tort discovery.

In my first academic post, I had little to no mentorship in my professional development at my "tier 3" school. I had not even a scholarship requirement for my first years, when I was a contract instructor, not tenure track. I did not know to publish, what to publish, or where. I wrote and published only because I wanted to, about whatever I wanted. It was the law-professor equivalent of being a journalist; if you have writing in your heart, it's a compulsion.

I did not know that the choices I was making, from starting as an instructor rather than an assistant professor, to the lack of an overarching research agenda, to everything from subject matter to placement strategy to the titles of my articles: all was part of a portfolio that I had only one chance to do right. I didn't.

Sometimes a student comes to me and expresses a desire for an academic career. My heart breaks. I have a rehearsed presentation to explain, as gently as I can, that the student already is behind on that goal: by definition, as we are having the conversation at a "tier 4," or bottom tier, law school. An academic career probably is foreclosed because of "poor" choices the student already has made unwittingly, such as having a family and living on a budget.

Mostly, the track is foreclosed by circumstances beyond the student's control: Urban childhood. Weak K12. No jobs for youth. No college counseling. Ailing parents. Delayed higher education. Being the wrong race, ethnicity, religion, or sexual orientation and identity for whatever is in fashion.

Even the brightest and most determined candidate cannot cause 10% merit to control the outcome.

The "mentor" I mentioned at the top: I take nothing away from his merit. But does he appreciate why he is where he is? Does he think that when he submits an article for publication, its merits are the principal driver of an offer? Does he think that when he submits a job application, his hard work is the principal driver of an invitation?

He's a white man who started adulthood before I and in the "Morning in America" Reagan heyday. I don't want to say what college he went to, but suffice to say, it's one you've heard of in connection with Presidents and Supreme Court Justices. Law school too. Maybe he was plucked from child labor in an Appalachian mine to be gifted with these opportunities, but odds are not. He then clerked for a federal appeals court, and then for the U.S. Supreme Court. He diversified the resume with a short stint abroad. He worked briefly in public and private sectors. He won a teaching fellowship in the top 10, and never worked lower: from there to tenure track, named professorship, center director, etc.

Brilliant bloke. 10%. 

But not that brilliant. 60% privileges, 30% right-place-right-time.

I think my writing is very good.

Monday, April 15, 2024

Town asserting 'full-on assault of stink' wins latest round in nuisance feud with hot-mix asphalt maker

Quarry and asphalt manufacturing facility in England.
Richard Law via Wikimedia Commons GNU 1.2
An asphalt plant that residential neighbors blamed for burning eyes and sore throats is a public nuisance, the Massachusetts Appeals Court affirmed Friday.

There's been much hand-wringing over the use, and argued misuse, or even abuse of public nuisance law in recent years, from me included. The sub-subject is addressed in my recent 2 Tortz (2024 rev. ed.) (SSRN), and a recent book by the insightful Prof. Linda Mullenix sits on my desk, patiently awaiting attention.

But Friday's case is a reminder that sometimes, a public nuisance is just a nuisance.

The defendant's property, in Acushnet, Massachusetts, on the commonwealth's south coast and just 10 minutes from my work, was a quarry since the 1890s and an asphalt plant since the 1950s, the court recounted. Then in 2021, owner P.J. Keating (PJK) started operating a newly constructed hot-mix asphalt plant located closer than its predecessor facility to neighboring residential properties. Subsequently, local resident complained to the Acushnet Board of Health of noxious odor and burning eyes, noses, and throats.

The board ultimately sent two investigators, one its own agent and one a hired expert. Both validated the complaints. The board's agent reported, according to the court, that "the odor was 'horrendous,' lasted throughout his fifteen-minute visit, made his eyes water, and left him feeling dizzy for one-half hour after leaving the site.... He testified that at the home of one resident, he rated the odor as level four [of seven], but at another home he rated the odor as a seven for the duration of his visit, a 'full-on assault of ... stink.'"

PJK provided contrary evidence. PJK told the board that it complied with the toughest regulatory standards, and its activity comported with the property's industrial zoning. PJK cast doubt on the credibility of the complainants, showing that a great many complaints came from relatively few neighbors. And some complaints occurred at times when the plant was not operating, PJK submitted. PJK also submitted expert evidence to argue that any odors or fumes posed no risk to public health.

Some of the disconnect might have resulted from the source of odors or fumes being transport trucks rather than the plant itself, the board expert suggested. When the mixing facility was located deeper in the property, the hot-mix asphalt had more time to cool while it was loaded into the trucks. With the new facility, trucks were loaded and hit the road, close to residences, while the asphalt was still hot.

Either way, the problem before the Appeals Court was not really one of merits. After the Board of Health ordered PJK to cease and desist until it could get its emissions under control, PJK sought and obtained relief in the Superior Court. The Superior Court ruled that the board's decision was arbitrary and capricious and not supported by substantial evidence, so annulled the cease and desist.

Hardly so, the Appeals Court ruled: "We think it plain that the record contains substantial evidence supporting the board's conclusion that PJK's plant is a public nuisance." The board might have given witness testimony more credit than PJK cared to, but that's the job of the fact-finder. The board received abundant evidence from both sides, so its conclusion was neither arbitrary nor unsubstantiated.

As a point of interest, the court observed that the board's legal determination must be given some latitude. Quoting the state high court from 1952, "[b]oards of health are likely to be composed of laymen not skilled in drafting legal documents, and their orders should be read with this fact in mind. They should be so construed as to ascertain the real substance intended and without too great attention to niceties of wording and arrangement."

At a deeper level, the simple case is indicative of the challenge at the heart of public nuisance doctrine, a division between the powers of the judiciary, resonating in corrective justice, and the powers of the political branches, resonating in distributive justice.  Public nuisance cases are difficult because they put the courts in the position of enforcing amorphous public policy, here, enjoining the operation of a lawful business.

In this vein, it's telling that PJK relied on its full compliance with zoning laws, industrial regulations, and public health and environment laws. The strategy effectively argues that the question presented already has been decided by the political branches, so the courts should not second guess. If residents don't want an asphalt plant next door, the argument goes, their remedy is with the zoning commission. To burden a business beyond substantial regulation is to invite courts to interfere with the economy: not their job.

In another state, that argument might win the day. Massachusetts courts are less solicitous, or more willing to assert regulatory authority, if there is no plain political mandate to the contrary. The court here agreed with the board that just because asphalt-mixing odors and fumes are not regulated, or are regulated only at extremes—in fact, the EPA deregulated asphalt manufacturing emissions in 2003—does not mean there is no risk to public health, nor even that emissions are not carcinogenic.

One need look no farther than PFAS to show that non-regulation is not necessarily indicative of safety.

The outcome here is bad news for a nasty collateral litigation brought by PJK in 2022 against the Town of Acushnet.

The PJK suit in federal court demands $50 million dollars for losses in stalled productivity at the facility. PJK accused the town of regulatory taking through "a series of deliberate, methodical, concerted, and systematic actions to specifically target Plaintiffs and the Property and to stop the legal, longstanding operations on the Property," WJAR reported in January. According to PJK, "the [board agent] has stated that 'the Town hired him "to make PJK's life a living hell."'" 

Currently in discovery, the federal case is Tilcon, Inc. v. Acushnet, No. 1:22-cv-12046 (D. Mass. filed Dec. 2, 2022).

Friday's case is P.J. Keating Co. v. Acushnet, No. 23-P-629 (Mass. App. Ct. Apr. 12, 2024) (temporary state posting). Justice Peter W. Sacks wrote the unanimous opinion of the panel, which also comprised Justices Meade and Massing.

Friday, April 12, 2024

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.

Wednesday, April 3, 2024

Women 'knew their place' turns out to be losing union argument to justify discrimination in port jobs

Herman Melville boarded the Acushnet at New Bedford Harbor in 1841.
RJ Peltz-Steele, 2022, CC BY-NC-SA 4.0
From the Massachusetts Appeals Court today, a reminder that however far we've come, we've yet so far to go.

Specifically, [plaintiff-appellee] Robar alleged that she was passed over for work [at the Port of New Bedford, Mass.] as a forklift operator in favor of men who not only were less qualified than she was, but who—unlike her—lacked a mandatory qualification for the position. When given the opportunity to respond, the union's then-treasurer (later president and business agent), Edmond Lacombe, supplied a written statement that proved unhelpful to the union's defense. Specifically, among other things, he recounted that the women who were hired for the traditionally female positions "did not complain"; rather, "[t]hey, more or less, knew their place when work was issued and accepted the outcome."

The union was the defendant-appellant in the case, because its referrals to the employer were de facto selections for hiring. Perhaps needless to say, the court affirmed for the plaintiff on the merits. The court also rejected the union's contention that the National Labor Relations Act preempted enforcement of state labor law, rather finding the subject-matter jurisdiction concurrent.

The case is International Longshoremen Association, Local 1413-1465 v. Massachusetts Commission Against Discrimination (Mass. App. Ct. Apr. 3, 2024) (temporary state posting). Justice James R. Milkey wrote the unanimous decision of the panel, which also comprised Chief Justice Green and Justice Grant.

Wednesday, March 27, 2024

Free torts textbook ready for academic year 2024-25


TORTZ: A Study of American Tort Law is complete and revised for the coming academic year 2024-25.

The two-volume textbook is posted for free download from SSRN (vol. 1, vol. 2), and available in hardcopy from Lulu.com at cost, about $30 per volume plus shipping.

This final iteration of the book now, for the first time, includes its final three chapters: (16) interference and business torts, (17) government liability and civil rights, and (18) tort alternatives.


TORTZ TABLE OF CONTENTS

Volume 1

Chapter 1: Introduction

A. Welcome
B. The Fundamental Problem
C. Parameters
D. Etymology and Vocabulary
E. “The Pound Progression”
F. Alternatives
G. Review

Chapter 2: Intentional Torts

A. Introduction
B. Assault

1. History
2. The Restatement of Torts
3. Subjective and Objective Testing
4. Modern Rule
5. Transferred Intent
6. Statutory Torts and Harassment

C. Battery

1. Modern Rule
2. The Eggshell Plaintiff
3. Knowledge of a Substantially Certain Result
4. Common Law Evolution and Battered Woman Syndrome

D. False Imprisonment

1. Modern Rule
2. Problems

E. Intentional Infliction of Emotional Distress (IIED)

1. Dynamic Intent
2. Modern Rule
3. The “Heart Balm” Torts

F. Fraud

1. Fraud in Context
2. Modern Rule
3. Pleading Fraud
4. Exercise

G. The “Process” Torts

1. Innate Imprecision
2. Modern Rule
3. Majority Rejection of Malicious Civil Prosecution

H. “Prima Facie Tort”

1. Origin of Intentional Tort
2. Modern Rule

Chapter 3: Defenses to Intentional Torts 

A. Introduction
B. Defenses of Self, Other, and Property
C. The Spring Gun Case
D. Arrest Privilege and Merchant’s Privilege
E. Consent

1. Modern Rule
2. Scope of Consent
3. Medical Malpractice
4. Limits of Consent

F. Consent in Sport, or Recklessness

1. The Problem of Sport
2. Recklessness

Chapter 4: Negligence

A. Introduction
B. Modern Rule
C. Paradigmatic Cases
D. Historical and Theoretical Approaches to Negligence

1. Origin
2. Foreseeability
3. Custom
4. Augmented Standards
5. Economics

a. Introduction
b. “The Hand Formula”
c. Coase Theorem, Normativity, and Transaction Costs

6. Aristotelian Justice
7. Insurance and Loss-Spreading

E. Landowner Negligence, or Premises Liability

1. Theory of Duty and Standards of Breach
2. Common Law Tripartite Approach
3. Variations from the Unitary Approach in the Third Restatement
4. Applying the Framework, and Who Decides

F. Responsibility for Third-Party Conduct

1. Attenuated Causation, or “the Frances T.  Problem”: Negligence Liability in Creating Opportunity for a Criminal or Tortious Actor
2. Vicarious Liability and Attenuated Causation in the Employment Context: Respondeat Superior and “Direct” Negligence Theories

G. Statutory Torts and Negligence Per Se

1. Statutory Torts
2. Negligence Per Se

a. Introduction
b. Threshold Test
c. Three Mile Island

H. Medical Negligence
I. Spoliation of Evidence

1. Introduction
2. Minority Rule
3. Recognition or Non-Recognition of the Tort Approach
4. Majority Approach

J. Beyond Negligence

Chapter 5: Defenses to Negligence

A. Express Assumption of Risk (EAOR)
B. EAOR in Medical Negligence, and the Informed Consent Tort

1. Development of the Doctrine
2. The “Reasonable Patient” Standard
3. Modern Rule of Informed Consent
4. Causation in Informed Consent
5. Experimental Medicine

C. “Implied Assumption of Risk” (IAOR)

1. Everyday Life
2. Twentieth-Century Rule
3. Play and Sport
4. Work

D. Contributory Negligence

1. Twentieth-Century Rule
2. Complete Defense
3. Vitiation by “Last Clear Chance”

E. Comparative Fault
F. IAOR in the Age of Comparative Fault

1. The Demise of “IAOR”
2. Whither “Secondary Reasonable IAOR”?
3. Revisiting Mrs. Palsgraf at Gulfway General Hospital

G. Statutes of Limitations
H. Imputation of Negligence

Chapter 6: Subjective Standards

A. Introduction
B. Gender

1. The Reasonable Family
2. When Gender Matters

C. Youth

1. When Youth Matters
2. Attractive Nuisance
3. When Youth Doesn’t Matter

D. Mental Limitations

1. General Approach
2. Disputed Policy

Chapter 7: Strict Liability

A. Categorical Approach
B. Non-Natural Use of Land
C. Abnormally Dangerous Activities

1. Defining the Class
2. Modern Industry

D. Product Liability

1. Adoption of Strict Liability
2. Modern Norms
3. “Big Tobacco”
4. Frontiers of Product Liability

Chapter 8: Necessity

A. The Malleable Concept of Necessity
B. Necessity in Tort Law
C. Making Sense of Vincent
D. Necessity, the Liability Theory

Chapter 9: Damages

A. Introduction
B. Vocabulary of Damages
C. Theory of Damages
D. Calculation of Damages
E. Valuation of Intangibles
F. Remittitur
G. Wrongful Death and Survival Claims

1. Historical Common Law
2. Modern Statutory Framework

a. Lord Campbell’s Act and Wrongful Death
b. Survival of Action After Death of a Party

3. Problems of Application

H. “Wrongful Birth” and “Wrongful Life”
I. Punitive Damages

1. Introduction
2. Modern Rule
3. Pinpointing the Standard

J. Rethinking Death Compensation

Volume 2

Chapter 10: Res Ipsa Loquitur

A. Basic Rules of Proof
B. Res Ipsa Loquitur (RIL)

1. Modern Rule
2. Paradigmatic Fact Patterns

Chapter 11: Multiple Liabilities

A. Introduction
B. Alternative Liability
C. Joint and Ancillary Liability
D. Market-Share Liability Theory
E. Indemnification, Contribution, and Apportionment

1. Active-Passive Indemnity
2. Contribution and Apportionment
3. Apportionment and the Effect of Settlement

F. Rules and Evolving Models in Liability and Enforcement
G. Review and Application of Models

Chapter 12: Attenuated Duty and Causation

A. Introduction
B. Negligence Per Se Redux

1. The Problem in Duty
2. The Problem in Causation
3. The Problem in Public Policy

C. Duty Relationships and Causation Timelines

1. Introduction
2. Frances T. Redux, or Intervening Criminal Acts
3. Mental Illness and Tarasoff Liability
4. Dram Shop and Social Host Liability
5. Rescue Doctrine and “the Fire Fighter Rule”

a. Inverse Rules of Duty
b. Application and Limits

6. Palsgraf: The Orbit and the Stream

a. The Classic Case
b. A Deeper Dig

D. Principles of Duty and Causation

1. Duty
2. Causation

a. The Story of Causation
b. Proximate Cause in the Second Restatement
c. Scope of Liability in the Third Restatement
d. Proximate Cause in the Third Restatement, and Holdover Rules
e. A Study of Transition: Doull v. Foster

E. The Outer Bounds of Tort Law

1. Balancing the Fundamental Elements
2. Negligent Infliction of Emotional Distress (NIED)

a. Rule of No Liability
b. Bystanders and Borderline NIED

3. Economic Loss Rule

a. The Injury Requirement
b. Outer Limits of Tort Law
c. Loss in Product Liability and the Single Integrated Product Rule

Chapter 13: Affirmative Duty

A. Social Policy
B. The American Rule
C. Comparative Perspectives
D. Bystander Effect, or “Kitty Genovese Syndrome”

Chapter 14: Nuisance and Property Torts

A. Trespass and Conversion
B. Private Nuisance
C. Public Nuisance and the Distinction Between Private and Public
D. “Super Tort”

Chapter 15: Communication and Media Torts

A. Origin of “Media Torts”
B. Defamation

1. Framework and Rules
2. Defamation of Private Figures

a. Defamation Proof
b. Defamation Defense

3. Anti-SLAPP Defense
4. Section 230 Defense
5. Constitutional Defamation

a. Sea Change: New York Times Co. v. Sullivan
b. Extending Sullivan
c. Reconsidering Sullivan

C. Invasion of Privacy

1. Framework and Rules

a. Disclosure
b. Intrusion
c. False Light
d. Right of Publicity
e. Data Protection

2. Constitutional Privacy and False Light
3. Demonstrative Cases

a. Disclosure and Intrusion
b. Right of Publicity
c. Bollea v. Gawker Media

4. Data Protection, Common Law, and Evolving Recognition of Dignitary Harms

Chapter 16: Interference and Business Torts

A. Business Torts in General

1. Tort Taxonomy
2. The Broad Landscape
3. Civil RICO

B. Wrongful Termination
C. Tortious Interference

Chapter 17: Government Liability and Civil Rights

A. Sovereign Immunity

1. Federal Tort Claims Act (FTCA) and Foreign Sovereign Immunities Act (FSIA)
2. Text and History of the FTCA
3. Discretionary Function Immunity

B. Civil Rights

1. “Constitutional Tort”
2. Core Framework
3. Official Immunities
4. Climate Change

C. Qui Tam
D. Human Rights

1. Alien Tort Statute
2. Anti-Terrorism Laws

Chapter 18: Tort Alternatives

A. Worker Compensation

1. Introduction and History
2. Elements and Causation
3. Efficacy and Reform

B. Ad Hoc Compensation Funds

Friday, March 22, 2024

Space law program reaps lessons from House Atreides

Luca Galuzzi via The Wildcat Tribune, Dougherty Valley High School, San Ramon, Cal. CC BY-SA 2.5

My friend and colleague Tracy Reynolds, Staff Judge Advocate to U.S. Naval Medical Forces Atlantic, will lead a fascinating Dune II-contemporaneous panel next week.

Zoom registration is open and free for Friday, March 29, at 12 noon US EDT.

International Humanitarian Law in Space:
Lessons Learned from the Fall of House Atreides

What can we learn about resource scarcity, insider threats, and over-reliance on technology from Frank Herbert's novel Dune and its recent film adaptation? How may these lessons be applied in outer space, on the Moon, or on Mars? Join the American Red Cross IHL Program as our panel of distinguished legal experts examine a wide range of issues, from great power competition on Arrakis to the conduct of hostilities between the Atreides, Harkonnen, and Fremen.

The panel comprises:

  • CDR Tracy Reynolds, United States Navy JAG Corps
  • David Kohnen, the Captain Tracy Barrett Kittredge Scholar of War Studies and Maritime History at the US Naval War College
  • Michelle L.D. Hanlon, Co-Director of the Air and Space Law Program at the University of Mississippi School of Law and its Center for Air and Space Law
  • Thomas Harper, Senior Counsel, International Humanitarian Law, American Red Cross National Headquarters
  • Namrata Goswami, author of Scramble for the Skies The Great Power Competition to Control the Resources of Outer Space

The program is sponsored by the American Red Cross and supported by the Space Law Interest Group of the American Society of International Law.

Wednesday, March 20, 2024

High court construes tenure contract to constrain faculty salary cuts at Tufts medical school

TUSM Arnold Wing, 2012, Boston
John Phelan via Wikimedia Commons CC BY 3.0
Academic freedom won a rare court victory last week when the Massachusetts high court allowed claims that Tufts University improperly reduced the salaries of tenured medical faculty.

(As an aside, I wrote just yesterday about academic freedom in the case of FAMU's efforts to fire the law school's first and only tenured Latina professor for speaking on a matter of public concern, namely, the school dean's contentious resignation. Please consider signing the letter in support of Prof. Maritza Reyes.)

In the scrappy remains of what academia has become, the Tufts School of Medicine (TUSM) in the late 2010s told eight faculty that they would have to bring in external research support to cover half their salaries and their lab space, or they would see their salaries and space cut. The eight plaintiffs didn't meet the new standards, and TUSM imposed the cuts.

As things usually go in these cases, the trial court awarded summary judgment to the defense. Much responsibility for the sorry state of academic tenure in the United States can be laid at the feet of its once defenders, such as the American Association of University Professors (AAUP), which became so enamored with procedural arcana in the early 20th century that it forgot the substantive rights it was supposed to be fighting for. I wrote in 2011 about this problem and the urgent need to address it then. The law too often says that as long as a university dots its is and crosses its ts, it can fire for any reason.

The typical bulwark in the tenure contract is simply that firing must be "for cause," a wishy-washy term that reduces the contract practically to year-to-year employment. A university can disavow termination as a violation of civil rights, then turn right around and point to bad breath and a disagreeable disposition as sufficient "cause." Judges usually are eager to defer to universities, reasoning that workers could strike better bargains if they wanted to; they have the AAUP working for them, after all.

Just such ambiguity contributed to the plaintiffs' grief in the instant case. The Massachusetts Supreme Judicial Court (SJC) opined that the term "economic security" in the Tufts tenure contract "is ambiguous." Upon the ambiguity, the term could be not be said to include a guarantee of lab space, and the lower court so concluded correctly.

A state high court typically would send plaintiffs packing wholesale upon deference to university interpretation of the contract. However, the SJC reversed and remanded, concluding that "more evidence is required regarding the customs and practices and reasonable expectations related to salary and full-time status for tenured professors at TUSM, and even other universities and medical schools," to determine whether the compensation reduction violated the contract.

Massachusetts is a labor-friendly state, for better and for worse. The courts are permissive, for example, in "wrongful termination" tort suits that would be shut down in a flash in other states. Here, the SJC was willing to look for evidence that other states' courts would eschew breezily. While I'm usually hesitant to see a court broadly construe a meticulous private contract, I'll here let myself be bettered by anxiety over academic freedom facing evisceration by the looming dismantling of faculty job security.

The plaintiffs in the Tufts case had been awarded tenure at different times, from 1970 to 2009. The SJC looked to the TUSM faculty handbook, which usually is construed as contractual in higher ed employment law. The handbook includes an academic, freedom, tenure, and retirement policy that incorporated language verbatim from the 1940 AAUP Statement on Principles of Academic Freedom and Tenure.

The 1940 statement speaks eloquently to the importance of "freedom of teaching and research and of extramural activities," as well as "a sufficient degree of economic security." All good. But the statement characteristically left "the precise terms and conditions" to ad hoc negotiation, as long as termination is permitted "only for adequate cause" and the result of some kind of review process. That's long left the tenured professor in an AAUP-style contract to wonder whether anything would stop the university from reducing salary to a penny and relocating the professor's office to the boiler room.

When Tufts presented a faculty hearing board with a multi-million operating deficit in the late 2010s, the board was more than willing to throw some faculty under the bus to save the rest. The union at my school did the same thing during the pandemic: eagerly approving faculty salary cuts, and even asking that they be higher, rather than calculating how many quarter-million-dollar-a-year assistant-associate-vice-provost-chancellors we might do without instead. 

Thus, another problem with tenure as we have it is that the AAUP, enraptured as it was and is with collectivism, never thought to consider the need to protect faculty from each other. Unlike the First Amendment, AAUP academic freedom allows the collective to run roughshod over dissenting voices.

With due process duly delivered, the Tufts plaintiffs saw salary reductions from 10 to 50%.

Taking stock of the matter, the SJC concluded, again, exceptionally, that "economic security is an important substantive provision of the tenure contract and not a prefatory or hortatory term." The court relied on the 1940 statement and strained in structuralist contract construction to distinguish a 2022 New York decision to the contrary. 

The record at Tufts probably does not support plaintiffs in resisting any salary reduction, but, the SJC concluded, at least created a question of fact as to how much is too much.

The case is Wortis v. Trustees of Tufts College (Mass. Mar. 14, 2024). Chief Justice Scott L. Kafker wrote the unanimous opinion.