Monday, March 18, 2024

Mass. attorney board rushes to racialize, shun 'overseer,' ignores word's ancient, biblical usages

A proposal published for public comment would change the name of the Massachusetts Board of Bar Overseers to the "Board of Bar Oversight" to avoid connotations of slavery in the term "overseer."

The new name means the "BBO" will keep its popular initialism. The BBO was formed in 1974, so the "overseer" usage originated independently of the negative connotation. It seems what's changed in the last half century is sensitivity to language, for better and for worse.

Frederick Douglass
and grandson Joseph Douglass, 1894

Smithsonian NMAAHC
The BBO stated its reasoning:

The word "overseer" has a pernicious history in our country, tied inextricably to chattel slavery. On southern plantations, an overseer was the slaveowner's delegate in day-to-day governance, trusted to enforce order and obedience. Overseers were the most visible representatives of white supremacy. As defined in the Online Etymology Dictionary, an overseer was "one who has charge, under the owner or manager, of the work done on a plantation." In autobiographies by slaves such as Frederick Douglas [sic] and Solomon Northup ("Twelve Years a Slave"), overseers were described as heartless, brutal and cruel. They were an inevitable and indispensable product of an economy built on human chattel. As noted by University of Louisville president Neeli Bendapudi, "The term overseer is a racialized term. It hearkens back to American slavery and reminds us of the brutality of the conditions and treatment of black people during this time." We agree with this statement.

I don't. To "racialize" is "to give a racial character to: to categorize, marginalize, or regard according to race." I agree that Bendapudi racialized the term. The BBO did not, before now. But therein lies the power of a passive structure, "is ... racialized," allowing one to accuse without responsibility to prove.

The BBO moreover is almost irresponsibly selective in its sourcing. First, the Online Etymology Dictionary is a project of a Pennsylvania writer, Douglas Harper. It's good and interesting to read; I'm not meaning to denigrate Harper's labor of love. But I'm not sure any one person's internet project should be anyone else's first stop for denotation, especially in a legal context. The BBO's sourcing is on par at best with high-school-term-paper standards.

Second, "one who has charge ... of the work done on a plantation" is not exactly what the Online Etymology Dictionary says. Rather, here's the entry in full:

late 14c., "supervisor, superintendent, one who looks over," agent noun from oversee (v.). Specifically, "one who superintends workmen;" especially with reference to slavery, "one who has charge, under the owner or manager, of the work done on a plantation."

So it's not true, even in the source referenced, that "overseer" on its face is defined as, or means, a plantation supervisor. The meaning arises in the especial context of slavery.

Maybe I'm a little sensitive to the whole thing because I once served as an "overseer" in my church. The BBO doesn't mention that the word has any meaning outside of slavery, much less that it has ancient and Biblical origins.

Episkopos (ἐπίσκοπος) in Ancient Greek translates literally as onlooker, or overseer, and that's the word used in the Iliad, the Odyssey, and the Bible. Epi (ἐπί) is a preposition meaning on or upon, and skopos (σκοπός) means to watch or look intently. Skopos is used variously (and in the Iliad) to refer to a lookout, a guardian, or a spy or scout.

In Ancient Greece, an episkopos referred specifically to a kind of imperial agent sent by Athens to distant municipalities to make sure they paid their taxes (Balcer 1977). (An interesting point of historical-comparative legal studies is that having a highly functional tax system is a common feature of successful ancient civilizations, from the Greeks to the Aztecs.) 

In the Iliad (22:255), A.T. Murray translation, Homer refers to the gods as witness to an agreement, using episkopoi (ἐπίσκοποι), the plural, to refer back to the gods. Murray beefed up the translation to say "witnesses and guardians of our covenant," thus articulating the added connotation of safeguarding.

In the Odyssey, also the Murray translation, below, Homer used episkopos more abstractly to indicate a role of authority:

τὸν δ᾽ αὖτ᾽ Εὐρύαλος ἀπαμείβετο νείκεσέ τ᾽ ἄντην:
‘οὐ γάρ σ᾽ οὐδέ, ξεῖνε, δαήμονι φωτὶ ἐίσκω
160ἄθλων, οἷά τε πολλὰ μετ᾽ ἀνθρώποισι πέλονται,
ἀλλὰ τῷ, ὅς θ᾽ ἅμα νηὶ πολυκλήιδι θαμίζων,
ἀρχὸς ναυτάων οἵ τε πρηκτῆρες ἔασιν,
φόρτου τε μνήμων καὶ ἐπίσκοπος ᾖσιν ὁδαίων
κερδέων θ᾽ ἁρπαλέων: οὐδ᾽ ἀθλητῆρι ἔοικας. 

Then again Euryalus made answer and taunted him to his face: "Nay verily, stranger, for I do not liken thee to a man that is skilled in contests, such as abound among men, but to one who, faring to and fro with his benched ship, is a captain of sailors who are merchantmen, one who is mindful of his freight, and has charge of a home-borne cargo, and the gains of his greed. Thou dost not look like an athlete."

In none of several English versions of this passage did I find episkopos translated directly. Poetically inclined translators such as Murray carried over the subject "captain" with either a pronoun or an implied subject. "Captain" here is "ἀρχὸς," or "chief." So it looks like Homer saw ἀρχὸς and ἐπίσκοπος as functionally equivalent in this context.

The New Testament accordingly uses episkopos several times to refer to church leaders. Indeed, "bishop" in English derives from the Greek episkopos—episcopus in Latin and obispo in Spanish.

Shepherd in 1 Peter 2:25
© Saint Mary's Press, licensed for non-commercial use
The First Epistle of Peter (2:25) (NIV) uses episkopos abstractly, as a metaphor for Jesus: "For 'you were like sheep going astray,' but now you have returned to the Shepherd and Overseer of your souls" ("ἦτε γὰρ ὡς πρόβατα πλανώμενα· ἀλλ᾽ ἐπεστράφητε νῦν ἐπὶ τὸν ποιμένα καὶ ἐπίσκοπον τῶν ψυχῶν ὑμῶν").  

Other usages are more concrete. In Acts 20:28 (NIV), Paul admonishes disciples: "Keep watch over yourselves and all the flock of which the Holy Spirit has made you overseers. Be shepherds of the church of God, which he bought with his own blood" ("προσέχετε οὖν ἑαυτοῖς καὶ παντὶ τῷ ποιμνίῳ ἐν ὑμᾶς τὸ πνεῦμα τὸ ἅγιον ἔθετο ἐπισκόπους ποιμαίνειν τὴν ἐκκλησίαν τοῦ θεοῦ ἣν περιεποιήσατο διὰ τοῦ ἰδίου αἵματος"). Similar usages appear in Philippians 1:1, 1 Timothy 3:2, 1 Titus 1:7, and Hebrews 13:17.

The BBO needs to be called out here for shoddy work (really, misspelling Frederick Douglass?) and results-oriented reasoning. The board is myopically intent on sacrificing a word on the pyre of cancel culture—a move indicative more of wanting to look righteous than of wanting to be righteous. I might rather, as a general rule, strive for education and enlightenment, at least as a first-order response.

Yet, as it happens, I agree with the BBO's conclusion and proposal. Despite the board's woke pandering, the risk is significant that "overseer" will import for some hearers a connotation that should be foreign to the board's role. For me, it's not about "racialization"; it's about relationship. 

When I moved to New England and started to learn the ropes of the local legal culture, I bristled at the term "Bar Overseers." To be fair to Massachusetts, I have had the same feeling in other jurisdictions about boards of attorney and judicial "discipline." 

"Overseer" and boy in Yazoo City, Miss., yarn mill, 1911.
U.S. Library of Congress

I fear that these words connote a top-down style of austere supervision, a system of the powerful and the powerless, that does not comport with a profession of mutually supportive equals (dare I say, a brethren, which is and should be gender encompassing). "Overseer" is suggestive of a dramatic power imbalance; the word was used not only in connection with slavery and plantations, but in the context of child labor in the early 20th century.

That doesn't mean that the time never comes when persistent or willful misconduct requires a firm response; the profession owes its highest duty to the public. But using terms such as "overseer" and "discipline" has the unintended consequence of encouraging officeholders to misunderstand their roles. Lawyering and judging are among jobs that endow persons with authority over others, whether through power, like policing, or through access to knowledge. Some people attracted to these jobs are prone to use, or abuse, their power for its own sake. Those same people might gravitate to a job such as "overseer" or arbiter of "discipline" for the wrong reasons.

I was more amenable to the term "overseer" in my church, because the biblical usage is, or should be, utterly alien to abuse of power. Similarly, a church speaks of spiritual "discipline" with only the affirmative connotation of accountability to God. As a church overseer, I felt the weight of guardianship in the term. Being an overseer was a stern reminder of my responsibilities to others and sometimes, too often, of my own duties and failures of spiritual discipline. Anyone truly called to church leadership is humbled by the call, not lured by empowerment.

Even so, when my board of overseers overhauled the church constitution, we changed to "elder" leadership. At the same time, we changed the governance model. We studied and prayed over many church governance models. The Bible says remarkably little about specifics, so the art of church governance becomes part spiritual endeavor and part sociological experiment. We designed a variation on governance that we believed would work well for our congregation, better, at least, than what we had in an aging constitution. 

"Elder" aligned better with our new model, which emphasizes biblical knowledge, experience, and mentorship. There's nothing technically deficient in the term "overseer" for our new model, and we were not afraid of "racialization." It was just semantics. Different Christian writers have committed to different terms, so those terms now carry connotations of the writers' observations and recommendations.

So connotation, like context, matters. And given the connotation of barbarism that even sometimes attaches to "overseer," especially in secular contexts, the BBO's modest proposal is sensible.

I simply would prefer that the proposal were backed by an evenhanded and honest analysis. Then we might be able to say, more modestly, that we are just pushing pause on "overseer": giving its deplorable connotation time to fade in our social consciousness, rather than committing a word of ancient import to the dustbin because of a modern-era abomination.

Monday, March 11, 2024

Book supports legal privilege for undercover reporting

Truth and Transparency, a recent book by Professors Alan K. Chen and Justin Marceau, is a comprehensive and gratifying tour of the history and law of undercover reporting.

Chen and Marceau teach at the Sturm College of Law at Denver University and have especial expertise in constitutional law, and respectively in public interest law and animal law. In their co-authorship, they examine the social phenomenon of undercover reporting that lies at the intersection of journalism, tort law, and the First Amendment—and often animal law, too.

I know Chen best for his work in opposing ag gag laws: statutes designed to stop and punish journalists, activists, and whistleblowers from investigating and revealing wrongful conduct and animal cruelty in the agricultural industry, especially by way of undercover video recording. Chen has worked against ag gag in Idaho, Iowa, Kansas, and Utah. I've been privileged to sign on to some of the amicus briefs he has coordinated.

Chen and Marceau leave no stone unturned. I was intrigued especially to read about the history of undercover reporting in the United States, the evolution of undercover reporting in its treatment in journalism ethics, and the thorough explication of undercover reporting in tort and First Amendment law.

Upton Sinclair's 1905 The Jungle, a novel based on real-life undercover reporting in the meatpacking industry, was my mind's go-to on the early history of the practice. Apropos of the present Women's History Month, however, it was female reporters such as Nellie Bly who carved out a niche for undercover reporting in the popular imagination in the late 19th century and deserve the most credit for pioneering the genre.

Bly, born Elizabeth Jane Cochran, famously had herself committed to a deplorable New York mental institution in 1887 for 10 days before a New York World lawyer secured her release, per prearrangement. Chen and Marceau recount the stories of Bly and other so-called "girl stunt reporters." They trace the history even further, as well, to antebellum abolitionists determined to expose the horrors of slavery.

Chen and Marceau explore a range of treatments of undercover reporting in journalism ethics, including the qualified permissiveness of the 1996 Code of Ethics of the Society of Professional Journalists, preserved in the more recent 2014 iteration. They observe as well the almost complete prohibition on the practice at National Public Radio, where journalists may engage in deception only when necessary to protect themselves in a conflict zone, and secret recordings may be used in only extraordinary circumstances.

A case that naturally arises throughout the book is the ABC News investigation of hygienic practices at Food Lion in the 1990s (at Reporters Committee). This case was contemporary with my university study of journalism, so was front and center in my class on journalism ethics. Whether or when journalists might engage in deception to get the story is a favorite point of discussion in journalism ethics class. The problem stratifies the need for public trust in journalism across the micro layers of people who are the subjects of stories and the macro layers of readers and the public interest. 

A court in Food Lion ultimately held that ABC journalists could be sued for trespass or breach of loyalty, but awarded only nominal damages. The factual problem for the plaintiffs that precluded a more substantial damages award was that notwithstanding the concealment of their motives, the journalists had been given jobs at Food Lion, and they did their jobs. So from a damages perspective, Food Lion got what it paid for. The appellate court, unlike the trial jury, was unwilling to consider the reputational harm flowing from truthful disclosures, if deceptively obtained, as any kind of compensable loss.

The outcome in Food Lion was consistent with the broad propositions of First Amendment law that there is no right to gather the news, which is why the Freedom of Information Act is a statutory rule, not a constitutional one; and that journalists are not exempt from generally applicable expectations of law, such as honoring contracts, obeying police orders—and not trespassing. As Chen and Marceau observe, the outcome exerted a chill in investigative reporting.

However, the Food Lion rule is hardly absolute, Chen and Marceau also aptly observe. The rule of no-right-to-gather-news has never been wholly true. The courts have given media latitude to test the limits, for example disallowing wiretap liability for receiving probably illegally intercepted communications. And technological advances have complicated the picture. A majority of U.S. circuit courts now, in a post-George Floyd world, have held that the First Amendment protects video-recording police in public places. The proposition seems right, but it doesn't square with the news-gathering rule.

The outcome in Food Lion further hints at a deeper problem in tort law that Chen and Marceau explore: the problem of damages in cases of only notional harm. In contemporary doctrine, a trespass with no infliction of physical harm or loss might entitle a plaintiff to an equitable remedy of injunction, but no more than nominal damages in tort law, thus Food Lion. Though with no damages in the offing, there is no deterrence to deceptive trespass, a logic that likely explains the eventual waning of Food Lion's chilling effect. The problem bleeds into the contemporary debate over the nature of damages in personal privacy violations. 

Journalism exceptionalism resonates as well in the problem of trespass and consent. Food Lion suggests that consent to enter property is vitiated by deception as to one's motive. Chen and Marceau explore opposing academic and judicial views on the question.

In a remarkable work of empirical research unto itself, Chen and Marceau's chapter 6 presents compelling data to show overwhelming public support for undercover reporting to expose wrongdoing. Public support seems to transcend political ideology and even whether the perpetrator of deception is a journalist or activist.

Chen and Marceau argue summatively and persuasively for a qualified legal privilege to protect journalistic deception in undercover reporting. Historical, ethical, and legal authorities all point in the same direction. Even the Fourth Circuit in Food Lion hedged its bets, observing that generally applicable employment law as applied in the case had only an "incidental effect" on news-gathering; in other words, news-gathering was outweighed as a consideration, not shut out.

Technological advances and citizen journalism will continue to generate conflict among conventional norms of property and fair dealing, evolving norms of privacy, and public interest in accountability in private and public sectors. Truth and Transparency is an essential manual to navigate in this brave new world.

Sunday, March 10, 2024

U.S. District Judge Ann Aiken holds her own

U.S. District Judge Ann Aiken
Public domain via Wikimedia Commons
Today, March 10, is the International Day of Women Judges, and I want to nominate for recognition U.S. Senior District Judge Ann Aiken.

Judge Aiken is the trial judge in the best known American youth climate suit, Juliana v. United States (in Climate Change Litigation Database). She's been a dog with a bone in Juliana, refusing to give short shrift to the complainants despite immense pressure by Obama, Trump, and Biden administrations, and despite increasingly anguished glares of disapproval over the rims of reading glasses at the Ninth Circuit.

Judge Aiken's 2016 district court opinion in Juliana, however many times it's pummeled on appeal, is masterful (which is to take nothing away from the groundwork expertly laid by Magistrate Judge Thomas M. Coffin). Judge Aiken makes the case for climate change litigation upon the seemingly inarguable proposition that the constitutional right to "life, liberty, or property" rather implies a breathable atmosphere as prerequisite.

The wrinkle in Aiken's analysis is the implication of the courts in the policy business of the political branches. That's why Aiken drives everyone from her appellate overseers to American presidents to handwringing paroxysm. But that's what we should want: If judges are to "throw up their hands" and do nothing to avert the extinction of human life, as Ninth Circuit Judge Josephine Staton accused her colleagues on appeal in Juliana in 2020, we should want to be sure that the very best arguments have been tested.

Judge Aiken was appointed to the federal bench by President Bill Clinton in 1998. She previously practiced law in Oregon and served as a state judge. Her willingness to be bold when the situation demands came to national attention in 2007 when she ruled that parts of the USA PATRIOT Act violated the Fourth Amendment for authorizing warrantless surveillance. Also boldly, Aiken has five children.

I've edited Juliana 2016 for the forthcoming chapter 17, on government liability, of my Tortz volume 2, out in revised edition later this year, 2024. That edit emphasizes the tort and civil rights aspects of the opinion. I have prepared a different edit, if any teacher desires, emphasizing points of constitutional law for my Comparative Law class in fall 2024 and a forthcoming curriculum on global law being organized under the auspices of European Legal Practice Integrated Studies, an Erasmus program.

Saturday, March 9, 2024

Can't see sports, Oscars without channel-bundle subscription you don't want? Let regulators know

Gencraft
I filed a comment today with the Antitrust Division of the U.S. Department of Justice regarding the Disney-Fox-Warner sport streaming deal, and more generally, the anticompetitive practice of streaming television sales with channel-bundling leverage and opt-out subscriptions.


9 March 2024

Dear sir or madam at the Antitrust Division of the U.S. Department of Justice:

I understand you are scrutinizing the Disney-Fox-Warner sport bundling agreement, and you no doubt are sensitive to the situation in televised sport since the recent congressional hearings on sport media rights.

I draw your attention to two of this weekend's top offerings in sport and entertainment, because they are demonstrative of the problem now in the streaming industry—which is to say, for our times, in the television industry.

In sports, this weekend will see a meeting of the top two, closely matched soccer teams in the world contending for the Premier League championship, Manchester City and Liverpool.  NBC owns U.S. TV rights to Premier League matches in the United States.  NBC's practice is to break up matches horizontally, across its many media properties and contractual arrangements, compelling consumers to have to pay for multiple services to follow a single team in a single sport.

The practice is worse still: high-interest matches such as Sunday's are available only with the purchase of subscription bundles to channel packages consumers do not want.  Yes, the match is available from multiple electronic packages, but each is an expensive bundle: Fubo, Sling, DirecTV, and USA on cable television.  There is no one-off purchase option, nor even a one-channel purchase option.  The price of one month on one of these services far exceeds the market value of one match, or even four weekly matches.

This leveraged bundling, compelling consumers to buy what they do not want to get what they do want, especially in a billing format of opt-out subscription renewal, is an anticompetitive practice. It is ironic that Fubo has sued in private antitrust enforcement to stop the Disney-Fox-Warner agreement. Fubo's position seems to be that it wishes to profit in the vertical market from bundling leverage, but does not want providers to profit from the same model in a horizontal arrangement. In entertainment, the Oscars air on ABC Sunday night.  Like NBC in sports, ABC is making this popular program available only through bundled channel services such as Fubo, Sling, YouTube Live, Hulu Live, DirecTV, and ABC on cable television. Again, there is no one-off purchase option, nor even a one-channel purchase option. 

Again, consumers must buy access to content they do not want, again in a billing format of opt-out subscription renewal.  Media watchers such as Vulture advise consumers to purchase a television antenna to see the Oscars on ABC broadcast.  Is it not plain evidence of ABC's anticompetitive practice that in this day and age consumers would have to regress technologically to over-the-air broadcast to avoid paying for what they do not want?  Never mind the fact that old-fashioned broadcasters have substantially dampened their signal power, so that over-the-air reception is not feasible for many Americans, even on the fringes of large markets.

Disney-Fox-Warner argue that they must forge an agreement to meet consumer demand, so their agreement is in the public interest.  They are not wrong.  However, they are right only insofar as you already have permitted an anticompetitive market to exist.  For a player in this market to succeed, it must grow bigger, must exploit horizontal and vertical integration.

The fundamental problem is that the market already is dysfunctional.  Market actors are trying to replicate the cable model in a streaming world. But the cable model came about as a function of technological limitations, not market forces.

Is it not self evident that in a free market, consumers would be able to buy what they want and not buy what they do not want?

I entreat you not to approve of the creation of another integrated market player. At the same time, I entreat you, start taking a hard look at the anticompetitive practices that already are tolerated in existing horizontal and vertical integrations, especially through the strategy of channel-bundling leverage and opt-out subscription sales.

Sincerely,

Rick J. Peltz-Steele

(for information only:)
Attorney, Washington, D.C.
Chancellor Professor, UMass Law School

Friday, March 8, 2024

Pomeranian isn't a child, but must be shared by separating human parents, court rules in equity

Pexels, licensed, by Tiểu Bảo Trương (not Teddy Bear)
Who's a good boy?

A Pomeranian named Teddy Bear will split his time between his adoptive parents since their separation, the Massachusetts Appeals Court ruled yesterday in a 20-page opinion.

"Dog" is my favorite keyword atop a Mass. court decision, and it was the first one here. Teddy Bear's legal status as beloved personal property was at issue.

In the plaintiff and defendant's separation, they agreed to share custody of Teddy Bear on alternating weeks. Over time, the arrangement soured, and, according to the plaintiff, the defendant played the nine-tenths-of-the-law card.

The plaintiff sued, and the motion judge of the Superior Court (Shannon Frison, since returned to practice) ordered that Teddy Bear's alternating schedule be restored. The defendant appealed, and a single justice of the Appeals Court (Marguerite T. Grant, as long as we're naming names) vacated the motion judge's order. (Attorney Justin R. McCarthy has some of the court docs uploaded.)

The single justice opined that "the motion judge had improperly treated Teddy Bear as if he were the parties' child." The equitable remedy of specific performance ordered by the motion judge would be suitable for a case of child custody, the single justice reasoned, but is not appropriate to the disposition of personal property. Rather, the defendant, if held responsible, would owe damages for conversion.

The plaintiff then appealed, and the three-judge panel of the Appeals Court sided with the plaintiff.  The single justice erred, and specific performance is a suitable remedy.

Alas, for poor Teddy Bear, the plaintiff prevailed not because a dog is more than mere chattel, a sentient creature capable of love for both his feuding parents.

Rather, the Appeals Court determined, it is simply so that a court possesses the equitable power to enforce a contract relating to personal property and "grant relief for delivery of a thing wrongfully withheld."  The usual rule of injunction pertains to require that "the remedy at law for damages would be inadequate."

Teddy Bear got some cred on the inadequacy analysis. Quoting the Restatements of Contracts, the court wrote that personal property may have sentimental value that well exceeds its market value: "Contracts may be specifically enforceable because they involve a grandfather's clock, even though it will not run, a baby's worn-out shoe, or faithful old Dobbin the faithful horse whose exchange value in the market is less than nothing."

Moreover, the court observed, the motion judge did not fashion an equitable order from whole cloth. Rather, the plaintiff asked the court to enforce a contract that the private parties already had worked out and already had executed on in the past. Thus, it was not so that the motion judge had treated Teddy Bear as if he were a child.

The Appeals Court decision thus accords with the contemporary trend in tort law, a welcome departure from historical common law, to quantify the value of pets to account for their emotional value to their owners, more than their mere replacement or resale value, which might be nought.

The case is Lyman v. Lanser (Mass. App. Ct. Mar. 7, 2024). Justice Peter W. Sacks wrote the opinion of the unanimous panel, which also comprised Justices Brennan and D'Angelo.

Teddy Bear's a good boy; that's who.

Thursday, March 7, 2024

UK anti-SLAPP bill takes fire

The United Kingdom has an anti-SLAPP bill on the table, and lawyer Gideon Benaim has cataloged objections.

In broad strokes, the bill follows the usual pattern of anti-SLAPP, looking for free speech and public interests on the part of the defendant, which then burdens the plaintiff with proving probable success on the merits out of the gate.

Benaim published his objections on the INFORRM blog, part 1 and part 2. Some of his objections track those that I articulated in 2021 as to American anti-SLAPP statutes. I lamented the unfairness of expecting a plaintiff to meet an extraordinary proof standard such as actual malice as to falsity without the benefit of discovery. The equivalent UK approach expects a plaintiff to overcome a bare public interest defense without the opportunity to probe the publisher's process or motives.

Benaim also points out, as I have, that anti-SLAPP is as likely to be invoked by the powerful against the weak as vice versa; Goliath media giant against aggrieved individual; or, as happened, President Trump against sexual assault complainant Stormy Daniels.

Benaim is a rarity, a plaintiff's lawyer in media torts. Not that everyday aggrieved individuals will be able to score a place on his client list, which includes JK Rowling, Naomi Campbell, Roman Polanski, and Gordon Ramsay.

At least in the United States, at least, the already daunting odds of prevailing in a media tort case against a publisher with expert defense counsel on retainer causes most would-be plaintiffs not to sue at all, no matter how just their causes. They can't find counsel and certainly can't navigate complex media torts pro se. And that's before anti-SLAPP comes into play, threatening a losing plaintiff with having to pay the attorney fees of the media giant's high-dollar representation.

As I've written before, anti-SLAPP works well when it works well. Statutes just aren't drafted to ensure that that's always the case. It looks like the UK is struggling with the same problem.

Wednesday, March 6, 2024

Smart but unconstitutional? Trump appointee inverts Scalia maxim in striking corporate transparency law

"Corporate Transparency," Seattle
by Daniel Foster via Flickr CC BY-NC 2.0
A federal district court in Alabama ruled the Corporate Transparency Act, a key anti-corruption statute, unconstitutional upon the inverse of a maxim of the late Justice Antonin Scalia.

There's much commentary on the reading-people's internet about the significance of the March 1, 2024, decision, which is certain to be reviewed by the Eleventh Circuit Court of Appeals. The dry question of business regulation might not make the cut on the TikTok news cycle, meanwhile, but the issue is immensely important.

Effective in January 2024, the Corporate Transparency Act, part of the Anti-Money Laundering Act of 2020, which in turn is part of the National Defense Authorization Act for Fiscal Year 2021 ("NDAA"), requires most businesses to report their "beneficial owners" with the Financial Crimes Enforcement Network (FinCEN) of the U.S. Treasury Department. The information is not then public, but can be shared with law enforcement, including tax authorities.

The change in law has been in the works for some 20 years, conceived initially in the years after 9-11 to combat the financing of terrorism. The ABA Business Law Section has a deeper dive for subscribers.

Critically, the transparency around beneficial corporate ownership brings the United States into compliance with transnational norms. We had become something of a money-laundering haven in the world because of the secrecy we allow around ownership of corporations, namely (pun intended) anonymous shell corporations.

People who are keen to exert dark-money influence in politics, to hide assets, or to launder money, of course, tend to have a lot of it. So the law did not come about quickly or easily. But Congress was determined enough in the end to enact the law by a super-majority, overriding President Trump's veto of the NDAA.

Constitutional objections to the law are abundant, based in the First, Fourth, and Fifth Amendments, besides the limits of congressional power under Article I, as amended. It was only the latter theory on which Judge Liles Burke ruled. He concluded that the Corporate Transparency Act strays beyond the necessary-and-proper latitude afforded Congress for any of its constitutional powers, including the Commerce Clause and the Sixteenth Amendment taxing power. It's a problem in vertical federalism; if there is to be transparency in corporate beneficial ownership, then, it must come from the states. Burke is a Trump appointee.

I'm skeptical of the winning argument. Congress's powers in business regulation are substantial, and corruption and tax evasion are almost invariably interstate endeavors. Thus, the significance of the decision: for if it is right, a great deal more of our federal regulatory and taxing machinery will be suspect.

To be fair, small businesses objected to the added burdens of FinCEN compliance amid their already hefty costs in tax compliance, and I am empathetic. We might ought do something about that. But I suspect the legislative obstacles have more to do with keeping commercial-tax preparers in business and keeping the law arcane to shield loopholes, than with flat aversion to transparency.

The other constitutional objections are not frivolous, even if they don't hold up in the end; the rights-based theories have more romantic appeal to the classical liberal. The Fifth Amendment claim is based on due process, not so strong by itself; the Fourth Amendment claim is creative: search or seizure without reasonable suspicion. The First Amendment claim gave me pause: Compelled transparency compromises anonymous speech.

It happens that just last month, I (pro se) created a nonprofit entity to operate an academic research project. To free my New York nonprofit of minimum tax obligations—even though it has and anticipates no money—I applied for a 501(c)(3) determination from the IRS—which costs, by the way, a $275 tip to Uncle Sam.

The IRS informed me that upon approval, I will have to report my nonprofit's beneficial owners to FinCEN. It's irritating; mostly, I'm put off just wondering whether there will be yet another fee.  But it did occur to me that my nonprofit will be engaged in academic expression, and it might have things to say that will upset people in power. So there is a hint of Orwellianism in having to register my state entity with the federal FinCEN and identify my "beneficial owners"—remember, not even with any money in the mix.

At the same time, this is the uneasy balance we always have struck with the nonprofit tax registrations of First Amendment-sensitive enterprises, such as churches and issue advocates. In essence, this is the Citizens United problem, which I've always thought is more layered than it gets credit for. We have not found a principled way to differentiate Nike-as-speaker from the ACLU-as-speaker without some office of government problematically intervening to make the call.

Anyway, what attracted me to this ruling from Alabama is none of the above; rather, it was page one of Judge Burke's opinion. Have a read:

The late Justice Antonin Scalia once remarked that federal judges should have a rubber stamp that says STUPID BUT CONSTITUTIONAL. See Jennifer Senior, In Conversation: Antonin Scalia, New York Magazine, Oct. 4, 2013. The Constitution, in other words, does not allow judges to strike down a law merely because it is burdensome, foolish, or offensive. Yet the inverse is also true—the wisdom of a policy is no guarantee of its constitutionality. Indeed, even in the pursuit of sensible and praiseworthy ends, Congress sometimes enacts smart laws that violate the Constitution. This case, which concerns the constitutionality of the Corporate Transparency Act, illustrates that principle.

If that doesn't suck you into a 53-page opinion on financial regulation, nothing will.

For the time being, as of March 4, 2024, FinCEN has suspended reporting obligations for plaintiffs in the action only, including members of the National Small Business Association.

The case is National Small Business United v. Yellen (N.D. Ala. Mar. 1, 2024). The plaintiff is a 501(c)(6) nonprofit, I'm guessing a business league, though it sounds like a not-too-exciting football league.

Saturday, March 2, 2024

Observers comment on Assange extradition hearings


My thanks to Assange Defense Boston for organizing the Massachusetts State House rally on February 20 (above). Assange Defense Boston posted on X a couple of clips of me (below). Read more about "Me and Julian Assange" and see my images from the event.

Here (and embedded below) is a webinar from the European Association of Lawyers for Democracy and World Human Rights about the February 20 and 21 hearings in the UK High Court of Justice. And here (and embedded below) are discussions of journalists, diplomats, and others who were in the room for parts of the hearings.





Friday, March 1, 2024

State high court simplifies anti-SLAPP, draws picture

Notwithstanding the merits of anti-SLAPP statutes—I've opined plenty, including a catalog of problems—the Supreme Judicial Court of Massachusetts (SJC) in recent years made a mess of the state anti-SLAPP law by creating an arcane procedure that befuddled and frustrated the lower courts.

Yesterday the SJC admitted the arcanity and clarified the procedure. I'll note that one thing I like about the Mass. law is that it has a focused trigger in petitioning activity; that's not changing. It'll take me some time to work through the 50 pages of the opinion. But to my delight, there's a picture! The SJC kindly created a flow chart:

The case is Bristol Asphalt Co. v. Rochester Bituminous Products, Inc. (Mass. Feb. 29, 2024). The court then helpfully applied the new framework in another case the same day, Columbia Plaza Associates v. Northeastern University (Mass. Feb. 29, 2023). (Temporary posting of new opinions.)

The court's unofficial top technocrat, Chief Justice Scott L. Kafker authored both opinions. The court affirmed in both cases, denying the anti-SLAPP motion to strike in Bristol Asphalt and granting it in Columbia Plaza, so the lower courts waded their way to correct conclusions despite the mire.

Thursday, February 29, 2024

ABA adopts academic freedom standard, but 'Crossroads' convo shows, not everybody gets it

Is the American Bar Association (ABA) "Doing Enough to Promote Viewpoint Diversity?," panelists were asked at the ABA Midyear Meeting in Louisville, Ky., on February 3.

No, I say emphatically. So I was pleased that my take was represented on the panel by Kentucky attorney Philip D. Williamson and South Texas College of Law Professor Josh Blackman.

Having made a quantitative assessment of 10 years of ABA amicus briefs in the U.S. Supreme Court, Williamson listed positions to which the ABA has committed itself. The ABA has taken positions, such as on Roe and Dobbs, that are not related to the practice of law or legal professionalism, and about which there is rational disagreement among lawyers. 

ABA briefs also take "diametrically opposed" positions, Williamson said: favoring stare decisis in Dobbs, but disfavoring it on juror unanimity; favoring state power in a Republican administration, favoring federal power in a Democrat administration; regarding tribal classifications as political rather than racial, and then, under the Trump travel ban, arguing nationality classifications as racial rather than political. One might ask, Williamson posited, "Why does the ABA care about this at all?"

The only common thread in ABA positions, Williamson said, is consistency with liberal politics. Would right-of-center lawyers feel welcome in the ABA?, Williamson asked. "No." There might be one amicus in the pile that aligned with a red-state attorney general, Williamson said, but it's "hard to find."

Williamson also criticized ABA policy on racial classifications as hypocritical. Until recently, the ABA had numerical quotas based on race in composing panels for continuing legal education (CLE) programs. The ABA backed down when the Florida Bar resisted awarding CLE credits upon a policy it viewed as unconstitutionally racially discriminatory.

Williamson observed that for ABA diversity purposes, "Asian" regards a Bangladeshi person and a Chinese person as "interchangeable." "Maybe we could fine tune how we think about race," Williamson said, "rather than how fast you sunburn in Miami." You won't read that in the ABA coverage of the event.

Williamson, Thomas, Blackman, and Rosenblum
RJ Peltz-Steele CC BY-NC-SA 4.0
Chicago attorney Juan R. Thomas said he welcomes viewpoint diversity, subject to one condition: He paraphrased James Baldwin: "We can disagree and still love each other unless your disagreement is rooted in my oppression and denial of my humanity and right to exist." (The quote is widely attributed to Baldwin, but I cannot find an original source.)

We can debate which Super Bowl team is the better, Thomas said, but not whether they play football.

I admire Thomas quite a bit, and the Baldwin quote is a self-evident truth. But it's also a red herring.

Blackman asked in response—also omitted from the ABA coverage—"if I can't oppose qualified immunity because it's not grounded in the Fourteenth Amendment, that makes me a racist?"

Thomas, who is a minister besides lawyer, also voiced a "dirty secret," that "not all people of color are progressives." He should have directed the observation to the ABA, not to his co-panelist adversaries. Their very point was that the ABA should be wary of taking politically charged positions over which reasonable, informed people disagree.

To Thomas's point, a lawyer commenting from the audience said something that resonated with me: that he personally opposes lawmakers making abortion decisions for women, but he believes that Roe was wrongly decided as a matter of federalism. That's the unpopular conclusion that I, too, came to, many years ago. I refrain from voicing it in the liberal circles of academia.

My position on affirmative action is similar. I champion socioeconomic equality and fully acknowledge systemic racism, but I so abhor government classification based on race that I cannot countenance official discrimination as a purported redress of discrimination. I rather would redress systemic inequalities through socioeconomic amelioration.

I said as much once out loud, and the r-word charges upended my life and career. An ABA accreditation site team at the time was fully informed of the matter and brushed it under the rug. One rocks the boat at one's hazard at an ABA-compliant school.

Which brings me to an interesting point and an occasion for the ABA discussion: At the time of the caucus meeting, the ABA had just signed off on new legal education Standard 208, which requires ABA-accredited law schools, such as the one where I work, to "adopt, publish, and adhere to written policies that protect academic freedom."

That only took 70 years since the Second Red Scare.

I'm keen to see whether the ABA really will follow through. ABA accreditation of law schools is nothing but a pricey protection racket. Entry costs are steep to join the club, but once you're in, you can do no wrong—almost: woe to the unfortunate straggler left to hang in the wind to prove the legitimacy of the system. The ABA is terrified of losing its monopoly power over legal education, as it did over judicial confirmation.

The kicker-quote in the ABA's own coverage of the caucus program does not induce confidence: "'I would be proud to be the last member standing of an association that fights against oppression,' [attorney and author Lauren Stiller Rikleen] stated."

Right, because that's what this is about. Standing for equality and rule of law makes me pro oppression.

The ABA Midyear panel on "Are the ABA and the Legal Profession Doing Enough to Promote Viewpoint Diversity?" comprised Williamson, Blackman, Thomas, and Oregon Attorney General Ellen F. Rosenblum. Senior U.S. Sixth Circuit Judge Danny J. Boggs moderated.