Monday, November 18, 2019

It's not just whistleblower law; First Amendment public employee-speech doctrine is in disarray

You might have heard some wrangling in the news about whistleblowers.  They're all the rage, lately, even here and there on this blog.

A big problem for whistleblowers in the public sector is that the U.S. Supreme Court has clearly held that there is no First Amendment protection for whistleblowing in the United States.  So public employees who blow the whistle on public misfeasance or malfeasance have to be prepared to pay for their good intentions with their livelihoods.

Notably, that was the Court's holding in 2006, when a lawyer, Richard Ceballos, suffered retaliation in the office of L.A. District Attorney Gil Garcetti for having disclosed to criminal-defense counsel that a sheriff misrepresented facts in a search warrant affidavit, despite having been admonished to remain silent.  Remember that when Gil Garcetti runs for President.  Even when there is statutory protection, as in the case of that federal whistleblower whom everyone's been talking about, it is extremely difficult to police prohibitions on retaliation, thus the whistleblower's present penchant for anonymity. 

In a recent opinion column in The Hill, Independent Institute Policy Fellow Ronald L. Trowbridge, Ph.D., bemoaned this sorry state of constitutional whistleblower law since Garcetti.

Right.

Well, welcome to the table, Dr. Trowbridge.  Some of us transparency-and-accountability types in the public sector have been living, working, and biting our tongues under Garcetti for more than a dozen years. 

I don't concede that Garcetti applies to me; a footnote in the opinion left the question open as a matter of constitutional law for academics, who sit in a weird place, constitutionally speaking.  I've dared to offer my own constructive criticism here and there.  But often, I stay silent.  And by often, I mean a lot.  For example, you want to know what goes on at a public school inside the ABA accreditation process?  Well wouldn't you, then.  How nice for you.  Talk to the hand.

What we need is not another op-ed bemoaning Garcetti.  We need a way forward.

In 2016, Jerud Butler was reprimanded and demoted in his job at the San Miguel County, Colorado, Road and Bridge Department after he testified truthfully at a child custody hearing involving his sister-in-law and her ex-husband, another employee at the San Miguel County Road and Bridge Department.  His testimony, in a personal capacity, incidentally touched on the hours of operation of the department.  The Tenth Circuit rejected Butler's bid for First Amendment protection, finding Butler an employee of the government, like an employee anywhere else, subject to the whimsy of the employer.

Butler was not a whistleblower.  But Garcetti was not a watershed moment.  Rather, Garcetti was a symptom of an employee-speech doctrine in First Amendment law that has been badly broken since it was invented in Pickering v. Board of Education in 1968.

On behalf of "First Amendment Scholars," including me, Professors Lisa Hoppenjans and Gregory P. Magarian and their student team at the Washington University First Amendment Clinic at St. Louis University Law School filed an amicus brief in support of U.S. Supreme Court cert. in Butler (No. 18-1012).  Butler has got to be a mistaken outcome, even if we think that whistleblowing should be a statutory matter rather than a constitutional right, even under Pickering.

Like Dr. Trowbridge, I hope the Supreme Court at some point will realize the work that needs to be done to make sensible public-employee speech doctrine, whether fixing what we've got or starting from scratch.

Meanwhile I'll take anything that chips away at Garcetti.

Scholar-amici on the Wash. U. brief in Butler included: RonNell Andersen Jones, Associate Dean of Research & Teitelbaum Chair of Law, University of Utah S.J. Quinney College of Law; Cynthia Boyer, Associate Professor, Institut Maurice Hauriou (Université Toulouse Capitole)/Institut National
Universitaire Champollion; Alan K. Chen, Professor of Law, University of Denver Sturm College
of Law; Eric B. Easton, Professor of Law Emeritus, University of Baltimore School of Law; Craig B. Futterman, Clinical Professor of Law, University of Chicago Law School; Heidi Kitrosser, Robins Kaplan Professor of Law, University of Minnesota Law School; Lyrissa Lidsky, Dean and Judge C.A. Leedy Professor of Law, University of Missouri School of Law; Gregory P. Magarian, Thomas and Karole Green Professor of Law, Washington University in St. Louis School of Law; Helen Norton, Rothgerber Chair in Constitutional Law, University of Colorado School of Law; Richard J. Peltz-Steele, Chancellor Professor, University of Massachusetts Law School; Tamara R. Piety, Professor of
Law, University of Tulsa College of Law.

Amici aligned with First Amendment Scholars in Butler included the National Whistleblower Center, the Center for Constitutional Jurisprudence, the Duke Law School First Amendment Clinic, and the Government Accountability Project.

Saturday, November 16, 2019

Dublin City's Brexit Institute tracks all things Brexit

If you're like me, Brexit is a lot to keep up with.  How do you find out the latest developments, when all of your news channels are around-the-clock impeachment hearings?  It's quite the chore for the responsible global citizen.

Let the Brexit Institute alleviate your anxiety.  Since 2016, the good people at Dublin City University have been tracking all things Brexit.  You can follow the institute through its excellent blog, newsletter, or Twitter feedIAMCRers will remember DCU from our excellent 2013 conference.

Unrelated to the institute, but while on the subject of Brexit, a shout out to one of my favorite Twitter feeds, The Irish Border, which earned mention in The Guardian last year.

Earlier this week, my Comparative Law class was privileged to host via Zoom a guest from the Brexit Institute, post-doc Professor Giovanni Zaccaroni.  Extra thanks that he stayed up late to join us from GMT.  Prof. Zaccaroni walked us through an intense short course on EU treaty exit article 50, the U.K. Supreme Court decision voiding prorogation, and the proposed Irish border protocol.


Prof. Zaccaroni answered students' questions on those issues and more, explaining the cultural, political, and historical sensitivity around the Irish border question, as well as the relationship between Brexit and potential eastward growth of the European Unionspoiler alert: don't hold your breath, for many reasons, Brexit besides.

Friday, November 15, 2019

Litigation privilege doesn't protect whistleblower counsel, court holds in defamation suit against attorney

The Massachusetts Appeals Court Wednesday affirmed the absolute litigation privilege as a defense to defamation, but rejected its application to a lawyer purporting to represent a whistleblower.

The case arose from a development dispute.  The essence of the alleged defamation concerned a letter from attorney-defendant Edmands accusing defamation plaintiff Patriot of tax fraud and retaliation against the attorney's client for his whistleblowing to the IRS and SEC.  Patriot alleged that Edmands moreover widely republished the accusations on internet platforms, including a whistleblower blog.  The court accepted Patriot's contention that the accusations against it were false.

The litigation privilege is an absolute privilege, so cannot be vitiated by a speaker's common law malice (ill will) or actual malice (knowledge of falsity or reckless disregard of truth or falsity).  The litigation protects an attorney acting as an attorney, even before litigation is initiated, but does not protect attorneys "'in counselling and assisting their clients in business matters generally,'" the court quoted precedent.

Edmands failed to establish the basis for the privilege as an evidentiary matter.  No whistleblowing complaints were filed with federal regulators, and the purported client denied representation by Edmands to that end.

Even had whistleblowing occurred, the court was skeptical that the litigation privilege would attach, given that whistleblowing does not necessarily precipitate any administrative or judicial process.  That point is important for attorneys representing whistleblowers.  Attorneys who help client-whistleblowers amplify their accusations in mass media, in even the most up-and-up of circumstances, might expect to find themselves targeted by retaliatory corporate ire.  The attorney should therefore take extra care to interrogate the truth of the whistleblower's claims.

The court remanded to the Superior Court for further proceedings. The case is The Patriot Group, LLC v. Edmands, No. 17-P-1397 (Mass. App. Ct. Nov. 13, 2019).  Blake, Wendlandt,and McDonough, JJ., were on the unanimous panel, Justice McDonough writing.

Wednesday, November 13, 2019

Researcher recounts riveting history of Auschwitz infiltrator

Pilecki before 1939
Witold Pilecki was an officer of the Polish underground in 1940 when he allowed himself to be captured by the Nazis in a civilian roundup and sent to Auschwitz.  The underground sought to document German atrocities in the concentration camps with the aim of spurring the Allies to action.

Assuming a false identity using found papers, Pilecki passed himself off as "Tomasz Serafiński," the commanding officer of the Nowy Wiśnicz region unit of the underground Polish Home Army (Armia Krajowa, or AK).  He remained in Auschwitz for nearly there years and wrote reports for the underground that were smuggled to London and Washington.

At Easter in 1943, Pilecki and compatriots made a daring escape from Auschwitz.  Hunted by the Gestapo, they made their way through the Polish countryside and ultimately found refuge with the real Tomasz Serafiński, his wife, Ludmiła, their children, and their underground network.  Amid their run, the escapees had become suspected by the underground of being German spies.  As he grew close to his unexpected namesake, Serafiński found himself at odds with the AK, ultimately depending on Ludmiła to protect both men against underground suspicion and Nazi hunters.  Pilecki and Serafiński each had a grim fate yet in store.

Pilecki at Auschwitz
This riveting WWII story is the subject of a working research paper, replete with documentary images, authored by Elizabeth M. Zechenter, Ph.D., J.D.: Was it Really a Blind Fate? Interwoven Lives of Witold Pilecki and Tomasz Serafiński, and the Daring Efforts of Ludmiła Serafińska to Save Them Both.   The paper was featured in this month's (Oct. 2019, no. 20) Quo Vadis, the Philadelphia Chapter newsletter of The Kosciuszko Foundation.  The foundation is a New York-city based non-governmental organization dedicated to cultural and educational exchange between the United States and Poland.

Zechenter
By day an assistant general counsel for GlaxoSmithKline, LLP, Zechenter is an accomplished academic researcher (Academia.edu, ResearchGate), her UCLA Ph.D. in evolutionary archaeology, who has taught international law and human rights law at Georgetown University Law Center.  She also is president of the Jagiellonian Law Society (JLS), "a voluntary legal association comprised of a diverse group of professionals (lawyers, judges, law faculty, and law students) who are interested in, or have roots in Polish and Central/Eastern European (CEE) cultures."  She is related to the Serafińskis. 

I was privileged to learn about Elizabeth's work through membership in JLS ("open to any legal professional who shares [JLS] interests and goals") and my work in the Catholic University of America, Columbus School of Law, American Law and LL.M. program with Jagiellonian University (not associated with JLS) in Kraków, Poland, and Washington, D.C.

Tuesday, November 12, 2019

Anti-SLAPP is not all it's cracked up to be

John Oliver this week on Last Week revisited the defamation lawsuit he drew against HBO from Bob Murray and Murray Energy.  The piece brings viewers up to speed on the feud.


Murray just dropped the suit, which was on appeal of dismissal to the West Virginia Supreme Court.  That led Oliver to do this effective segment on the problem of strategic lawsuits against public participation (SLAPPs).  Oliver called on the 20 states without anti-SLAPP statutes to adopt them, lest nationwide speakers remain subject to lawsuit in lowest-common-denominator, plaintiff-friendly locales.

I'm a big John Oliver fan—next-level, best standup I've ever seen, not to mention having redefined social commentary through comedy—and a free speech and journalism advocate.  That said, I am on record in opposition to anti-SLAPP laws, and I remain so.  The laws are an ill fit to resolve the underlying problem of excessive transaction costs in litigation and work an unfairness against legitimate causes of action.  Our First Amendment law radically weights defamation tort law against plaintiffs like nowhere else in the world, admittedly prophylactically dismissing claims by genuinely injured plaintiffs.  Defendants don't need another weapon in their arsenal.

Oliver is right that there are plenty of cases in which litigation is abused in an effort to suppress free speech.  But anti-SLAPP laws sweep within their ambit nearly every defamation and privacy case.  Defamation plaintiffs who have been genuinely injured and have no SLAPP motivation whatsoever also must respond to anti-SLAPP motions and are likely to suffer dismissal and pain of attorneys' fees—not because their suits lack merits, but because they lack access to discovery to get their hands on real, existing evidence of malice, discovery that our civil litigation system routinely affords to tort plaintiffs in the interests of justice.

The essential concept of anti-SLAPP law is said to have originated in Colorado as a means to protect environmentalists from retaliatory litigation by developers.  If you want to see evidence of my doubts about the efficacy of anti-SLAPP legislation, look no farther than a decision by the Supreme Judicial Court of Massachusetts just today, in which, literally, a property developer is the anti-SLAPP claimant in an epic litigation that has generated enormous transaction costs over anti-SLAPP procedure without ever reaching the merits of the case.

Anti-SLAPP laws look good on paper.  But they indiscriminately undermine tort law.  The effect of denying compensation to genuinely injured plaintiffs will be the effect of a failed tort system: unfairness, increased abuse by bad actors, and, ultimately, injured persons taking the law into their own hands.  Media advocates wonder why Generation Z, et seq., are hostile toward free speech.  Be careful what you wish for.

Monday, November 11, 2019

For Veterans Day, let's push through Congress bipartisan Feres doctrine waiver for medmal claims

Veterans Day Painting.  (Details at end of story.)
The Federal Tort Claims Act (FTCA) authorizes tort actions against the U.S. federal government, waiving the government's sovereign immunity in its courts, subject to tight constraints.  The FTCA yields to the Feres doctrine, a rule of law named for the Supreme Court case that recognized it in the years following World War II.  The Feres doctrine disallows lawsuits by active-duty military for personal injury or death.  The Feres doctrine makes sense on the face of it, lest every injury in combat become a tort claim under the laws of the states. 

But the Feres doctrine's logic breaks down at the margins.  Increasingly in recent decades, healthcare has become big business and very expensive.  Military personnel have become dependent on the government for routine care.  And cases have been reported of medical malpractice at government hospitals: cases that unquestionably would yield medical malpractice claims in the comparable civilian context.  Insofar as the Feres doctrine is supported by a sort of "assumption of risk" by soldiers who go off to war, that theory feels ill fit to stateside medical mistakes in childbirth or prenatal care, or failure to diagnose terminal conditions

In spring 2019, the U.S. Supreme Court denied cert. in a challenge to this operation of the Feres doctrine (case at SCOTUSblog; details at and Stripes).  CBS Morning reported in August on the story of Sfc. Richard Stayskal, a Green Beret, now terminally ill, whose cancer was misdiagnosed, and on his emotional congressional testimony.


Bills (S.2451, H.R.2422) (not the first of their kind) that would authorize medmal tort claims for military personnel are stalled in House and Senate committees.  Fox46 Charlotte recently called out Sen. Lindsey Graham as an obstacle in the Senate for the bipartisan Sfc. Richard Stayskal Military Medical Accountability Act of 2019.  I hope Veterans Day might occasion placement of this fix on the short list of what Congress should be doing besides playing politics for the cameras this week.

(Image: Caroline Beattie, a senior at Manatee School for the Arts in Palmetto, Fla., painted a portrait of her Economics and Government teacher, for the school's Veterans Day program. Her teacher, Maj. Jennifer Pearson with the Air Force Reserve’s 920th Rescue Wing at Patrick Air Force Base, Fla., photographed the painting Nov. 6, 2019.  U.S. Air Force photo by Maj. Jennifer Pearson.)

Sunday, November 10, 2019

Cameroon human rights record prompting Washington to end trade preference includes internet shutdowns

The announcement that the United States will end trade preferences for Cameroon in response to the country's human rights record marks some good news out of Washington and exemplifies the kind of "quid pro quo" that foreign policy is supposed to leverage.

In a freedom-of-expression angle to the story, documentary filmmakers screened Blacked Out: The Cameroon Internet Shutdown at RightsCon 2019 in Tunis over the summer.  The presentation fit perfectly into one of the key conference themes, "#KeepItOn."  I was privileged to be there and to meet one of the filmmakers, who talked about the extraordinary risk of documenting the minority anglophone community in Cameroon today.  More at Quartz Africa and at the Blacked Out YouTube channel.  The film can be viewed on YouTube in its 43-minute cut or its 65-minute uncut version, below.


Of interest to legal comparatists, there's an interesting underlying story in Cameroon's civil law tradition arising from a merger of French and British political possessions.  That's not the subject of the movie, but you can imagine the tension of legal tradition running in tandem with tensions of culture, language, and history, and all of that overlaid on and obscuring, in classic imperialist fashion, pre- and still-existing tribal cultures and customary legal traditions.

Saturday, November 9, 2019

Radiolab ponders journalists who would undo what they wrought

Radiolab tackled the "right to be forgotten," U.S. style, back in August, and I missed it.  Hat tip at On the Media, which just revived the excellent segment.  Here is the summary and audio.

In an online world, that story about you lives forever. The tipsy photograph of you at the college football game? It’s up there. That news article about the political rally you were marching at? It’s up there. A DUI? That’s there, too. But what if ... it wasn’t.
In Cleveland, Ohio, a group of journalists are trying out an experiment that has the potential to turn things upside down: they are unpublishing content they’ve already published. Photographs, names, entire articles. Every month or so, they get together to decide what content stays, and what content goes. On today’s episode, reporter Molly Webster goes inside the room where the decisions are being made, listening case-by-case as editors decide who, or what, gets to be deleted. It’s a story about time and memory; mistakes and second chances; and society as we know it.
This episode was reported by Molly Webster, and produced by Molly Webster and Bethel Habte.

Friday, November 8, 2019

Grand jury secrecy is not sacrosanct

Actors reenact the Moore's Ford lynchings every year or two, lest the public
forget.  (July 26, 2014, photo by artstuffmatters, CC BY-NC-ND 2.0.)
Georgia Public Broadcasting reported recently (via NPR; see also WaPo (pay wall)) that the U.S. Court of Appeals for the Eleventh Circuit will soon decide whether to unseal the grand jury records pertaining to a 73-year-old lynching case.  Meanwhile, the Rhode Island Supreme Court ponders whether to open contemporary grand jury records in the "38 Studios" economic development scandal.  Both cases remind us that grand jury secrecy is not sacrosanct and must yield to paramount public interests.

GPB reported more in August about the brutal murders of Dorothy Dorsey Malcom, her brother, George Dorsey, and his wife, Mae Murray Dorsey, at the hands of a mob of 20 to 30 assailants at Moore's Ford Bridge, outside Monroe, Georgia, in 1946.  As many people were there, the crime remains "unsolved," as GPB's Grant Blankenship explained:
The crime made national headlines. Over the course of a grand jury investigation, the FBI interviewed over 2,000 people—almost half of the county in 1946. A hundred people testified before the grand jury, but not a single indictment was handed down.
Now historians seek to unseal the grand jury records to find out more about what happened that day in 1946 and why the investigation was unyielding.  The Department of Justice and Federal Bureau of Investigation are resisting.

Incidentally but importantly, the definitive book on the Moore's Ford case is Fire in a Canebrake: The Last Mass Lynching in America, by Laura Wexler.  I went to secondary school with Wexler, so #BrushWithGreatness.

I welcome public reminders that grand jury secrecy is not sacrosanct.  Grand jury secrecy is a reasoned and historically derived common law inversion of the usual presumption of transparency in our judiciary.  As such, it's an odd nod, for our typically ruthless paradigm of all-or-nothing privacy, to the importance of protecting the reputations of persons who might be connected with investigations, but turn out not to be fairly implicated as witnesses or suspects.

However, an inverted presumption is still a presumption, which means it can be overcome, or rebutted.  Equally historically, common law has allowed challengers in the public interest to overcome grand jury secrecy, for example, after Watergate.  Transparency is a means to accountability, and when a gross miscarriage of justice has occurred, as seems indisputable in the Moore's Ford case, the public interest in learning what went wrong in the investigation, and possibly delivering some belated justice, may be ruled paramount.

R.I. Gov. Raimondo
(Kenneth C. Zirkel
CC BY-SA 3.0)
Meanwhile, Rhode Island Governor Gina Raimondo is feuding with the state Attorney General's Office over access to the records of grand jury proceedings in 2014 and 2015 over the "38 Studios" economic development scandal.

As The Providence Journal recalled, "The state’s $75-million loan guarantee to retired Red Sox pitcher Curt Schilling’s high-risk video game venture ended up costing taxpayers a bundle when the company went belly up."  Criminal investigation was, again, unyielding.  "The statewide grand jury sat for 18 months, ending in 2015 with no criminal indictments. State lawmakers, former state Economic Development Corporation board members and staff, and 38 Studios executives were among the 146 witnesses the grand jury interviewed."

The ProJo summarized the pro and con of unsealing.  On the Governor's side, the state's attorney told the Rhode Island Supreme Court, 38 Studios marks "'a seminal event in recent Rhode Island history. It has cost taxpayers tens of millions of dollars. It has brought threats to the State’s credit rating.  It spawned a massive civil litigation resulting in $61 million of settlements. It caused the Securities and Exchange Commission to file a complaint against a state agency.... It prompted a criminal probe that reportedly touched the entire membership of the 2010 General Assembly (save one former member serving a federal prison sentence).'"

Kingdoms of Amalur: Reckoning was the only game published by 38 Studios
(and partners, including EA) before the enterprise went bankrupt.
The AG's office responded: "'[N]o one was indicted, the grand jury only recently concluded, the participants are still alive, and ... the [10-year] statute of limitations has not expired.... Unlimited disclosure ... may also adversely affect future grand jury participants who will be unable to rely upon the long-established policy that maintains the secrecy of the grand jury proceedings.'"

Ongoing payments to bondholders will cost R.I. taxpayers, me included, "$446,819 this year and an anticipated $12,288,413 next year," the ProJo reported.  I'm with Raimondo.  The Superior Court was not.

The Rhode Island Supreme Court heard oral arguments yesterday, November 7, In re 38 Studios Grand Jury, No. SU-2017-0301-A, but puts precious little online.  The ACLU of Rhode Island filed as amicus on the side of the Governor.

Thursday, November 7, 2019

Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments

Willis Lam CC BY-SA 2.0
Reversing and remanding an order for new trial in a personal injury-product liability case over a $5 Wendy's hamburger, the Massachusetts Appeals Court today issued an opinion on jury argument fit to serve as a teaching tool in trial practice.

Plaintiff's counsel made improper "golden rule" and "reptile" arguments in closing, the Appeals Court concluded.  But the trial court did not fully and fairly assess whether prejudice resulted before rejecting the jury verdict and ordering a new trial.

In 2011, the 34-year-old plaintiff suffered a gruesome dental injury while eating a $5.64 small plain hamburger from the Wendy's fast-food restaurant in Medford, Massachusetts.  Skip this block quote (footnotes omitted) if you don't feel strong in the stomach today.  But if you're into this sort of thing, there's more in the opinion.
On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14) was split in two. The injury was caused by a piece of bone in the hamburger.
The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed. The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years.
In its 38-page opinion, the court gave a blow-by-blow of the entire trial, just two half-days, from opening to closing arguments with ample quotations.  That rendition in itself is a great teaching tool.

The salient problems arose for the plaintiff in the closing argument.  Long quotes are given in the opinion, but the trial judge summed it up.
[S]he concluded that plaintiff's counsel's closing argument (1) improperly created an "us versus them" dichotomy designed to distinguish "'us,' the average people" from "'them,' the big corporations"; (2) "improperly suggested that the jury decide the case as 'the voice of the community' to 'send a message' beyond the courtroom," and sought "to arouse in the jury a sense of duty to safeguard the community" from generalized safety concerns; (3) improperly invoked the "golden rule" by asking the jurors to place themselves in the plaintiff's shoes; (4) improperly interjected counsel's own personal opinions and beliefs; and (5) resorted to rhetorical principles "described in the book [D. Ball & D. Keenan,] Reptile: The 2009 Manual of the Plaintiff's Revolution" (book).
Oddly enough, I just this week read in the ABA Journal about how that Ball & Keenan book is vexing the defense bar.

The court recited the Massachusetts Guide of Evidence, section 1113(b)(3), listing prohibited closing arguments (and tracking multistate norms), and located plaintiff counsel's arguments within paragraphs (C) and (D):
(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;
(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;
(C) to appeal to the jurors' emotions, passions, prejudices, or sympathies;
(D) to ask the jurors to put themselves in the position of any person involved in the case;
(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right; and
(F) to ask the jury to disregard the court's instructions.
Nevertheless, the appeals court faulted the trial judge: "The judge acknowledged that she had given curative instructions but deemed them inadequate without explanation."  When the jury returned a verdict for $150,005.64, the lowest amount suggested by plaintiff's counsel, plus the cost of the hamburger, it came without evidence of prejudice.  The Appeals Court admonished "that a judge is not to 'act merely as a "13th juror" [to] set [the] verdict[s] aside simply because he would have reached a different result had he been the trier of facts'" (quoting precedent).

At minimum, the trial judge applied the wrong procedural standard, holding over the defense motion for mistrial from before the verdict to after, rather than requiring (or raising sua sponte) and analyzing a motion for new trial after the verdict.  Thus the Appeals Court vacated the new-trial order and remanded for proper consideration.

The case is Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 18-P-1125 (Mass. App. Ct. Nov. 7, 2019).  Wolohojian, Blake, & Shin, JJ., were on the unanimous panel, the Hon. Gabrielle R. Wolohojian writing.  The trial judge was the Hon. Heidi E. Brieger, who teaches adjunct at her alma mater, Boston University Law School.  Matthew J. Fogelman appeared for the plaintiff.  In the 1990s, he was editor-in-chief of the student newspaper Argus at Wesleyan University.  Christopher A. Duggan and Pauline A. Jauquet represented defendants Wendy's and beef producer JBS Souderton, Inc.

Anguelov talks fast fashion with WBZ

My friend and colleague Professor Nikolay Anguelov spoke recently on WBZ NewsRadio 1030 about fast fashion and learning to shop sustainably.  Here is the debut episode of New England Weekend; cue to 28:00 minutes for the segment.



Nick is author of The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society (2015), as well as From Criminalizing to Decriminalizing Marijuana: The Politics of Social Control (2018).  In 2016, he and I attended the congress of the Union Internationale des Avocats in Toronto, where Nick schooled lawyers from around the world on fast fashion and its legal implications, especially in environmental conservation.

Wednesday, November 6, 2019

Smart graffiti graces Warren, R.I.

Caught some local art in the Clet Abraham tradition on my late-night homeward commute Monday.
Warren, Rhode Island, on Main Street opposite Child Street.

Tuesday, November 5, 2019

Oberlin case leaves no doubt, 'racist' accusation is capable of defamatory meaning; Koppel reports

An Ohio jury in June awarded $44m to a family-owned bakery that proved defamation by Oberlin College in a case of false accusations of racism by Oberlin students, supported by the college.  Now CBS Sunday Morning has excellent coverage from Ted Koppel.  How ever did Oberlin, a respected four-year institution of higher education committed to the liberal arts, jump on board with racism accusations without first checking the facts?  Unthinkable.


False accusations of racism or misogyny today are no less capable of defamatory meaning than accusations of child molestation or other crimes that shock the conscience.  There can no longer be any serious contention that such charges are immune from defamation liability because they are fair comment or because they do not necessarily expose a victim to hate, contempt, or ridicule in the community.

Forbes reported: "The jury initially assessed $11 million in compensatory damages and $33 million in punitive damages against Oberlin, for a total of $44 million, but the judge cut back the amount to $25 million because Ohio law has caps on damages. The judge then tacked on $6.5 million in attorney’s fees bringing the verdict back up to $31 million."

The case is Gibson Bros., Inc. v. Oberlin College, No. 17CV193761 (Ct. Common Pleas Lorain County, Ohio, Sept. 18. 2019).  The Ohio trial court publishes only the docket online.  Oberlin appealed (filed Oct. 8, 2019), and the Gibsons cross-appealed (filed Oct. 18, 2019).  CNN has the initial complaint (filed Nov. 17, 2017).

Friday, November 1, 2019

Teachable torts: Samsung satellite crash-lands in 'paradigm of reciprocity'

"Strict liability" in tort law is liability without fault.  That is, more precisely, it is liability without regard for fault.  Lawyers and social scientists have much debated the theoretical foundation and doctrinal justifications for strict liability.  After talking recently with a scholar-colleague in Honduras, I think strict liability may be on the rise in a new class of cases in Latin American environmental law.  Meanwhile, we use strict liability, in the United States, in certain classes of tort cases, such as when the defendant is a seller of a defective product, or the defendant was engaged in an "abnormally dangerous" activity, such as dynamiting.

Professor George Fletcher in 1972 posited one theoretical basis for strict liability as the "paradigm of reciprocity":

The general principle expressed in all of these situations governed by diverse doctrinal standards is that a victim has a right to recover for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant—in short, for injuries resulting from nonreciprocal risks. Cases of liability are those in which the defendant generates a disproportionate, excessive risk of harm, relative to the victim’s risk-creating activity. For example, a pilot or an airplane owner subjects those beneath the path of flight to nonreciprocal risks of harm.

The downed plane is the paradigmatic paradigm exemplar, albeit tragic.  But space news from a Michigan backyard, where no one was hurt, provides this week a happier occasion to consider the professor's proposal.

Thursday, October 31, 2019

Teachable torts: Halloween haunted houses strain hallowed American right to make poor choices

As the sun sets in the U.S. East, I was prepared to let Halloween slide by on the blog, even though so many great tort-related items perennially crop up, and an eagle-eyed 1L Jason Jones sent me an excellent story about the super creepy McKamey Manor (YouTube) haunted house in Summertown, Tennessee (Guardian video coverage four years ago).  Then Professor Christine Corcos (of Media Law Prof Blog, via TortsProf List) alerted me to WaPo coverage of McKamey, and Ronny Chieng incorporated McKamey into his Halloween edition of "Everything is Stupid" on The Daily Show (here for the blog, not the classroom).


The "petition" referenced in the news coverage (linked above, top) refers to a Change.org petition, not a legal action.  Yet.  The case would be useful to consider tort claims, such as the infliction of emotional distress, as well as defenses, such as consent and assumption of risk, vitiation on public policy grounds, and the American ethos of personal responsibility.

Thanks to my TA, here's an even better item, funny without the dark angle, bringing a lawyer into the picture: the first two segments of Nathan For You s1e05.

Happy Hallows' Eve.

Tuesday, October 29, 2019

Arkansas profs champion academic freedom as bipartisan cause

Most recently in June, I wrote about the faculty lawsuit against the University of Arkansas System to protect academic freedom, as the university tries to cut back on tenure protection for both past and future hires.  The case is tracked by Professor Josh Silverstein, at his blog, Jurisophia, where the most recent filing is a September reply brief in support of defendants' motion to dismiss.

I had lost track in my inbox of this short segment (click box below) from Fox News in June, below, in which Arkansas named plaintiffs, my friend and mentor Professor-Attorney Tom Sullivan among them, schooled anchors on how academic freedom and tenure should be a bipartisan cause.



The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. complaint filed May 31, 2019).

I've freshly endured my own reminder at UMass Law of how readily academics turn on each other.  As I nurse the knife wound in my own back, I find myself re-sensitized to how American university administrators today exploit the ruthless faculty penchant for self-preservation to further the faculty's own fall and the rise of bureaucratic hegemony in its place.  Ultimately if indirectly, the most devastating impact of this dynamic is visited on the students who should be the beneficiaries of the educational mission.

Saturday, October 26, 2019

Social-science saucebox opines on bike-bridge closures

A reporter stopped me on a run last week to obtain my critical policy analysis of the bridge-replacement situation on the East Bay Bike Path.  Suffice to say, my testimony was breathless.


Watch at NBC 10 Providence.

Thursday, October 24, 2019

Everyone's talking First Amendment

So this one was the vision of what happens if things don't go the way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now call the neo liberal left was ignoring workers' needs and was not paying attention to the things that give rise to populism and only the right was paying attention to those needs.
[Rorty] said, 'at that point, something will crack. The non-suburban electorate will decide that the system has failed and start looking around for a strong man to vote for. Someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen and postmodernist professors will no longer be calling the shots.
'One thing that is very likely to happen is that the gains made in the past 40 years by black and brown Americans and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion. All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet.'
The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,
quoting the speculative fiction of philosopher Richard Rorty in 1997


The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library.  Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal.  Ian Donnis, political reporter for The Public’s Radio, will moderate.

The First Amendment has been much in the news lately, in our strange times.  Two items from my listen-and-read list.  First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.



In part one of three, Marantz challenges First Amendment absolutism.  That's not a big reach, but lays out the context for his discussion.  In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine.  It's familiar territory until he hits Citizens United (about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speech author P.E. Moskowitz.  The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.

The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality.  As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical.  Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.

Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection.  At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement.  Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.

Second, the SMU Law Review published a centennial anniversary symposium issue on the Schenck and Abrams "clear and present danger" cases.  These are the articles:

Wednesday, October 23, 2019

Sandy Hook father wins $450,000 in Wisconsin defamation case against conspiracy theorists

A Sandy Hook parent won a $450,000 defamation award in Wisconsin last week, when I was out of town.  The case is interesting not only as a collateral installment in the litigation aftermath of the 2012 Sandy Hook school shooting, but as an installment in the legal system's ongoing grappling with misinformation in mass media, so-called "fake news."

Lenny Pozner, father of decedent six-year-old Noah Pozner, won his defamation suit against Sandy Hook deniers James H. Fetzer and Mike Palecek in June, on summary judgment.  A jury trial was had only on the question of damages.  In the complaint, Pozner claimed severe mental distress, besides the requisite reputational harm.  Now This News has more about Pozner's ordeal, beyond the traumatic loss of his son:



The crux of the falsity in the defamation claim was defendants' assertion that Pozner was in possession of and distributing a falsified death certificate.  Attached to the complaint, Noah Pozner's death certificate reports the cause of death, "Multiple Gunshot Wounds."  Lenny Pozner alleged that the defendants' assertion appeared in a 2016 book, edited by Fetzer and Palecek, Nobody Died at Sandy Hook, and on Fetzer's conspiracy-theory blog.  The book publisher earlier settled and agreed to stop selling the book.

Fetzer, who resides in Wisconsin, is, amazingly, a distinguished professor emeritus of philosophy at the University of Minnesota Duluth.  His work included JFK conspiracy research.  Fetzer's university home page bears this disclaimer:

James Fetzer is a UMD Philosophy Professor Emeritus and conspiracy theorist. He retired from UMD in 2006. His theories are his own and are not endorsed by the University of Minnesota Duluth or the University of Minnesota System.  As faculty emeriti, Fetzer's work is protected by the University of Minnesota Regents Policy on Academic Freedom, which protects creative expression and the ability to speak or write on matters of public interest without institutional discipline or restraint. 

The university deserves a lot of credit for respecting academic freedom even in these challenging circumstances.  Fetzer meanwhile has cast the loss in Wisconsin as a book banning and offense to freedom of the press.

Fetzer and Palecek have books for all occasions.  One title, still for sale, is And Nobody Died in Boston Either, referring to the 2013 Boston Marathon bombing.  Three people were killed at the scene in Boston, and more than 200 were injured.

Meanwhile on the Sandy Hook litigation front, the Connecticut litigation against Remington Arms is still pending cert. petition in the U.S. Supreme Court.  Remington seeks to nullify the Connecticut Supreme Court ruling allowing victim-family plaintiffs a thin-reed theory to circumvent federal statutory immunity.  Plaintiffs filed their responsive brief on October 4, and Remington filed a reply on October 18.

[UPDATE, Nov. 13, 2019: The U.S. Supreme Court denied cert. in the Remington case, so it will go back to the trial court in Connecticut.]

Tuesday, October 22, 2019

Legal comparatists meet in Missouri

Maxeiner
Last week the American Society of Comparative Law (ASCL) met at the University of Missouri Law School.  I was privileged to participate among 120 scholars from 20 countries.

As part of the works-in-progress program at the front end of the conference, I presented the most recent iteration of my work on access to information law, comparing private-sector transparency and accountability measures in South Africa with selected standards in Europe. 

Maxeiner's 2018 book on
"failures" in Amercian
lawmaking

Yoo
I benefited from exchange of critique from a room full of participants, including co-panelists James Maxeiner of the University of Baltimore and Kwanghyuk (David) Yoo of the University of Iowa.  Maxeiner presented a fascinating comparative study of lawmaking in Germany and the United States, showing the inventive ways that lobbying-driven American lawmakers might learn from Germany's variegated means of incubating potential legislation.  Yoo talked about U.S. and European Union court decisions on antitrust challenges to patent settlements in the pharmaceutical industry: when a company settles a lawsuit to keep a patent challenger out of the market, when does dispute resolution cross into anti-competitive misconduct?

The panel was moderated by Missouri’s Mekonnen Ayano, a Harvard doctoral graduate and formerly an Ethiopian judge and World Bank legal counsel.  University of Missouri Dean Lyrissa Lidsky, an accomplished media law scholar, attended and live-tweeted the panel.

[UPDATE: Vainly adding photos with me in them, courtesy of Mizzou Law.]

Prof. Maxeiner and I listen in the lecture hall.

I puzzle over dinner options.

I ramble about ATI in Africa with the generous ear of moderator Prof. Ayano.

Monday, October 21, 2019

Whistleblowers call foul, Play the Game

Marcus Carmichael
(Chris Turner CC BY-NC-ND 2.0)
Whistleblowers are basking in an adoring limelight in the United States right now. They better enjoy it while it lasts, because the American taste for whistleblowing is fickle.

All the attention being paid to whistleblowing in Washington, you would think that whistleblowers are heroes of democratic liberty, Paul Reveres on midnight rides of revelation. Now there’s a second whistleblower, and maybe a third, and, why, people just can’t get in line fast enough to become whistleblowers.

I have to roll my eyes when I hear people waxing poetic over the great tradition of the American whistleblower. Catch those same people on a different day, different issue, or different side of the fence, and they’ll be lashing the whistleblower to the stake and setting their torches to the kindling like it’s the Spanish Inquisition. For much of American history, whistleblowing has been synonymous with disloyalty and treachery.

The Washington whistleblower caused WNYC’s On the Media to replay a 2015 segment in which Brooke Gladstone interviewed language writer Ben Zimmer and consumer protection advocate and civil rights crusader Ralph Nader. The early-20th-century word whistleblowing, Zimmer explained, comes from what it sounds like: a referee blowing the whistle to stop play in event of a penalty. (See Transparency International for the word’s translations, born of other cultural contexts.) No sooner did the word come about that it acquired a dark connotation. It meant, Gladstone said, “to snitch, to rat, to steal.” You can hear that usage, Zimmer pointed out, in the classic film On the Waterfront (1954), in reference to the enemies of organized labor. In this sense, Trump’s “spy” notion is not so far off the mark.



Nader was responsible for turning the word around in the 1970s. He pleaded for insiders to break ranks in his public safety crusade against Big Auto, and he repurposed the term whistleblowing with the positive spin of serving the greater good, despite disloyalty in the short term. So the word is not the thing. Gladstone nailed the salient distinction, which is whether the whistleblowing accords with one’s value judgments. Trump’s traitor is Pelosi’s star witness. Ed Snowden deserves either a presidential medal or an espionage prosecution. Even Upton Sinclair was a duplicitous meatpacking worker.

Blow the Whistle


Our ambivalence about whistleblowers finds expression in law. When we protect whistleblowers at law—common law usually does not—it’s usually a legislative reaction to something awful that happened, when we wonder why no one in the know said anything. While whistleblower protection statutes are prevalent in the United States at state and federal levels, they are often controversial, hardly comprehensive, and likely to pertain only to the public sector. Protection tends to be narrow and sectoral in scope; to depend upon abundant and variable technical prerequisites; and to offer scant shield from the full range of consequences, formal and informal, that the whistleblower faces. Woe to the would-be whistleblower who fails to hire a lawyer in advance to navigate the legal process. The Washington whistleblower was meticulous. The person either is a lawyer or consulted one.

Far from the glamorous escapades of the Hollywood Insider, the real-life whistleblower’s lot in life is lousy. More whistleblowers become infamous than famous, and most become no one significant at all. Typically whistleblowers find themselves, through no fault of their own, in a catch-22. Behind door number one, go with the flow, stay with the pack, look the other way, and sell out your principles. Behind door number two, stand on principle, and probably lose your job, your livelihood, your home, and your friends, alienate your family, and maybe put your life at risk.

To be fair, not all whistleblowers are motivated by altruism, and not all whistleblower motives are altruistic. Sometimes whistleblowers themselves are victims of the misconduct they are reporting. Sometimes they are grinding an unrelated ax against a perpetrator—which doesn’t make the perpetrator less an offender. Whistleblowers’ motives can be complicated. People are complicated. Altruism is a factor. Courage is a constant.

Play the Game


Last week, I had the extraordinary experience of meeting some whistleblowers in world sport. For me, it was the highlight of Play the Game, an initiative and biennial conference of the Danish Institute for Sports Studies, its first meeting outside Europe.  Play the Game aims to raise ethical standards and to promote democracy, transparency, and freedom of expression in world sport.

Whistleblowing in sport might not sound like a big deal, but it is. Consider that transnational sport governors such as the Fédération Internationale de Football Association (FIFA) and the International Olympic Committee (IOC) are among the most powerful non-governmental organizations in the world. Technically they are “nonprofits,” but no one says that with a straight face. Until recently, FIFA and IOC execs sashayed into the offices of presidents, prime ministers, governors, and mayors like they were Regina George’s mean girls on a tear at North Shore High. There were real costs to their shameless greed: global contrails of worthless constructions, impoverished populations, and broken dreams.

That started to change when FIFA and IOC were exposed as corrupt at their cores. Their corruption was exposed by whistleblowers.

Bonita Mersiades (Play the Game CC BY-NC-SA 2.0)
Bonita Mersiades was a top exec with the Australian Football Federation from 2007 to 2010, when she worked on Australia’s failed bids for the 2018 and 2022 FIFA World Cup tournaments. She blew the whistle on the extraordinary demands that FIFA placed on would-be hosts and her own country’s willingness to bend the public interest to conform. Those tournaments we know now were awarded to Russia and Qatar upon such rank corruption as resulted in a 2015 raid by U.S. and Swiss law enforcement and dozens of criminal indictments. Mersiades herself was outed when the investigative report of Assistant U.S. Attorney (now N.Y. Judge) Michael Garcia was made public.

At Play the Game, Mersiades described social ostracism in her community, loss of her career in sport administration, burglary of her home, and hacking and online harassment. She wrote about FIFA corruption and her experience in a 2018 book, Whatever It Takes: The Inside Story of the FIFA Way.

Yuliya and Vitaly Stepanov (Play the Game CC BY-NC-SA 2.0)
Also on the whistleblower panel (below in full) were Yuliya Stepanova and Vitaly Stepanov. Yuliya was a Russian Olympic runner, and Vitaly worked for the Russian anti-doping agency. Together they blew the whistle on Russian doping, breaking open a massive scandal that rocked Russia and the world, exposing not just systematic Russian doping but reckless, if not criminal, indifference in the World Anti-Doping Agency. With good reason, the Stepanovs feared for their lives.  They applied for Canadian asylum and now live in the United States (with their adorable little boy, also in attendance).


Vitaly told a spellbound audience that the stress of the couple’s situation had them on the verge of divorce when, at last, they took the leap into whistleblowing history together. They would have to leave homeland and family behind, and their lives would never be the same. But it was OK, he said, because “after that, … we were united.”

My dinner companions: Mersiades and Dr. Joel Carmichael,
chiropractor to U.S. Olympic athletes
When, over dinner, I lamented the state of patchwork American whistleblower protection law, Mersiades was quick to correct me. It’s much better than Australia, she said. [See UPDATE below.]  In the United States, we do have a somewhat vigorous qui tam field. (Read more at Troxel, Krauss, & Chapman.)  And the federal whistleblower law now at the heart of the impeachment inquiry is better than the yawning void of jeopardy into which FBI Special Agent Coleen Rowley stepped when she testified in the Senate on 9/11 failures in 2002. She retired from the FBI two and a half years later.

Mersiades book
Still, it seems to me that as a society, we should be able to do better. When the dust settles around the peculiarly technically adept Washington whistleblower, we might ought wonder why whistleblowers aren’t all around us—at every level of government, and in the private sector. Did no one at Purdue Pharma know about aggressive opioid peddling? We should wonder why, in the land of the First Amendment, there are so many disincentives—legal, social, economic—for anyone to speak out as a citizen on a matter of urgent public interest.

“It is difficult to get a man to understand something, when his salary depends upon his not understanding it,” Sinclair said in 1934. That’s why the rule of law must support the apostate who speaks the truth.

The documentary Icarus tells the Russian doping story.
Director Bryan Fogel also spoke on the whistleblowing panel (above) at Play the Game 2019.


For more from Play the Game 2019, see the conference website and the #ptg2019 Twitter feed.

[UPDATE, Oct. 21, at 10:50 a.m. U.S. EDT: A testament to Mersiades's lament that Australian whistleblower protection lags behind democratic demands, witness today's remarkable protest action by Australian newspapers.]