Posted May 15, 2020. To settle a pandemic-related financial crisis at UMass Dartmouth, law faculty are not receiving research compensation in summer 2020. I will be away from my desk, May 16 to August 15. Blog posts will be sparse, and I will not receive email. On the upside, summer ­čî×! If you need to reach me, please send a message through the faculty assistants’ office (Ms. Cain and Ms. Rittenhouse). Stay thirsty.

Thursday, January 31, 2019

Research examines accountability through journalism and right to information in India

I've published a research article (available on SSRN), "Accountability in the Private Sector: African Ambition for Right to Information in India," in the latest volume (25:3) of the Panjab University Research Journal Social Sciences.  Here is the abstract:

The right to information (RTI) has come to recognition as a human right in international law. Conventionally, RTI is a means for a person to demand information from a public body. RTI has proven especially potent in the hands of journalists, who seek information on behalf of the electorate to hold public institutions accountable. But in the recent decades in which RTI has attained human rights stature, power in society has shifted in substantial measure from public to private sector. Journalistic inquiry is frustrated by the inapplicability of access laws to private bodies. In India, direct access to the private sector through RTI law was considered and rejected in the 1990s; however, the 2005 RTI Act allows a generous measure of access to non-governmental actors with public ties. A legal movement has been gaining steam in Africa to push past the public-private divide and recognise the importance of RTI to protect human rights regardless of the public or private character of the respondent. Different approaches are emerging with respect to journalist access in the African model. Amid trending privatisation and burgeoning private power, the time might be coming for India to reconsider the road not taken.

The Research Journal Social Sciences is a peer-reviewed publication of Panjab University in union-administered Chandigarh, India.  Panjab is a public university on 550 acres, enrolling 17,000 students in 78 departments and 15 centers for teaching and research, including a law school.  More than 250,000 more students are enrolled in 198 constituent and affiliated colleges and centers throughout the region.  Founded in 1882, Panjab was split in the 1947 partition of India from the University of Punjab, now in Pakistan.

Dr. Verma
This issue of the journal is dedicated to development and mass communication.  I was fortunate to be invited to contribute by the special editor of the issue, Dr. Manish Verma (LinkedIn), who serves as director of international affairs and director of the School of Media at Amity University Jaipur in Rajasthan.  Dr. Verma is a Ph.D. graduate of Panjab University and an alumnus of the Executive Program in Management and Leadership in Education at Harvard University.  He's also a top-shelf colleague.

Tuesday, January 29, 2019

Research proposes U.S. FOIA reform upon South African example

I've published in the Villanova Law Review, "Access to Information in the Private Sector: African Inspiration for U.S. FOIA Reform" (available from SSRN).  The article appears as part of a symposium edition of the law review (63:5) on FOIA reform.  The special edition commemorates 50 years of the FOIA, which was passed by Congress in 1966 and went into effect in 1967.  I was privileged to present the piece at the Villanova University Charles Widger School of Law in 2017, upon generous invitation to the Norman J. Shachoy Symposium.  Here is the foreword (footnotes omitted):
The Freedom of Information Act of 1966 (FOIA) was a landmark global example of transparency, or access to information (ATI), to ensure democratically accountable governance.  Government had grown in the twentieth century, especially in the new administrative state, and FOIA re-balanced the distribution of power between people and public authority.  Today in the twenty-first century, much power in American society has migrated from the public sector to the private sector, specifically into the hands of corporations.  Even insofar as it works well, FOIA operates only against the conventional state by enabling an individual’s capacity to realize civil and political rights.  FOIA simply was not designed to enable the attainment of human necessities such as education and housing, much less environmental protection and healthcare, especially when the greatest threat to those rights is not government deprivation, but the commercial marketplace.

ATI in Africa is a different story.  Three decades after FOIA, planted among the unprecedented ambitions of the South African constitution was a right to ATI.   And within that right lay an extraordinary new provision.  As guaranteed by the South African constitution and enabling law, a person may request records from a nongovernmental respondent, a private body, if the person can show that the records are “required for the exercise or protection of any rights.”   In other words, South African ATI law jettisoned the historic barrier between public and private sectors.  South African lawmakers were informed by the experience of apartheid, in which the private sector’s complicity had been a vital and brutal partner in state-sanctioned human rights abuse.
Blossoming beyond even the visioning of an apartheid remedy, ATI in the private sector has been construed by the courts in a wide range of applications, from intrafamilial business disputes to environmental conservation.  South African courts have struggled to define “required” and “rights” in applying the ATI law.  But South Africa has demonstrated that ATI in the private sector can work.  The public-private division justifies a change in the terms of access, but not an absolute barrier.  In the last five years, the South African approach has been reiterated in the domestic law of at least five other African countries and in pan-African human rights instruments meant to inspire more domestic adoptions.

In this article, I suggest that the African example inspire U.S. FOIA reform.  In its time, FOIA shone a light into the darkest corners of American politics.  Now America deserves a new approach to restore power to the people in the age of the corporation.

Monday, January 28, 2019

Who Dat lawsuit for 'negligence,' 'emotional anguish' is really a desperate mandamus plea

Controverted play in Rams vs. Saints conference championship game
(NFL image via GMA and Daily Show: fair use).
Full disclosure: I'm not a football (NFL) fan—rather a football (association) follower—but if I were, I would have a soft spot for the Saints, because I love New Orleans and married into a proud Louisiana family.

So it caught my attention when Roy Wood Jr. on The Daily Show with Trevor Noah (Comedy Central, YouTube) asked whether in fact the "Saints Were Robbed," and then quoted from a lawsuit against Roger Goodell and the NFL claiming negligence and "emotional anguish."  I'm always intrigued by the scent of negligent infliction of emotional distress, which is a kind of chimera in American tort law.

The lawsuit, which can be downloaded from its attorney-author's website and was first reported by WDSU, is really a petition for mandamus, not a tort suit.  It does allege negligence on the part of Goodell and the NFL and asserts that they have the power under NFL rules to remedy the bad call of the Saints-Rams game.  As Roy Wood Jr. observed on The Daily Show, the petition dramatically alleges "emotional anguish" and "loss of enjoyment of life" by Saints fans.  It does not, however, assert any legal basis to order Goodell or the NFL to comply with their own rule book, even if that is what they would be doing by replaying all or part of the game.

On an SB Nation blog, an L.A. attorney and confessed Rams fan fairly if spitefully described the Who Dat petition as "one of the most frivolous lawsuits to be filed. Ever." Of course, Americans have a long tradition of working out sport frustrations in litigation—that I'm today a soccer fan is evidence of the struggle—so maybe professionalism should allow some latitude for that.

Sunday, January 27, 2019

Court dismisses prolonged suit against Government over 2009 Ft. Hood mass shooting

From the Defense Department: "Jeffrey and Sheryll Pearson look at the
portrait of their son, Army Pfc. Michael Pearson, before the Purple Heart
and Defense of Freedom award ceremony on Fort Hood, Texas, April 10,
2015. The event honored the 13 people killed and more than 30 injured in
a gunman’s 2009 shooting rampage on the base. U.S. Army photo by Daniel
Cernero."

The U.S. District Court for the District of Columbia, per the Hon. Colleen Kollar-Kotelly, dismissed service-member and family claims against the federal Government arising from the 2009 shooting at Ft. Hood, near Killeen, Texas, in which U.S. Army Major Nidal Hasan killed 13 and injured more than 30 other persons.  CourtListener has the ruling in Manning v. Esper, No. 12-CV-1802 (D.D.C. Jan. 22, 2019).

To the dismay and torment of those involved, this case has dragged on for nearly a decade.  Hasan admitted to the shootings in a 2013 court-martial and was sentenced to death.  He is presently awaiting execution, pending judicial review, at Fort Leavenworth.  The civil claims accuse the Government of negligence in the supervision of Hasan, who was permitted to work as a medical corps psychiatrist despite superior's concerns about his own mental fitness.  While Hasan's case was under way and then on appeal, the Army repeatedly asked the trial court to stay civil proceedings, provoking "anger, frustration and suspicion" on the part of the plaintiffs, in their words.

The dismissal was predicated principally on grounds of the Feres doctrine. Arising from the 1950 U.S. Supreme Court decision in Feres v. United States (Justia), the Feres doctrine bars tort claims arising from active-duty service when the claims otherwise might be authorized by the Federal Tort Claims Act (FTCA).  The Feres doctrine has made news in recent years in allowing the government to resist medical malpractice claims against healthcare providers of Veterans Affairs.  

Plaintiffs in the Ft. Hood case knew that Feres would be a problem, but hoped to work around it, as some victims were not on active duty at the time of the shooting, and some defendants were federal law enforcement officials rather than active-duty military.  The ambiguous status of some persons involved in the shooting, as well Hasan's motivations, was at issue in the intervening years in an ugly collateral dispute over victims' entitlements to military honors, which the Government for a time resisted.  In this same vein of ambiguity, the court did allow some plaintiffs' claims to proceed in administrative processes, dismissing them without prejudice for failure to exhaust remedies as the FTCA requires.

Information and privacy law aficionados might recollect the name of Judge Kollar-Kotelly.  For seven years after 9/11, she was the presiding judge of the Foreign Intelligence Surveillance Court.

Money can't redeem life, but don't think it doesn't help tort survivors


When my 1L Torts class studies wrongful death, I take the occasion to challenge the notion that money, based on quantified loss, is necessarily the best way to effect a liability award (cf. Prof. Andrew McClurg's gut-wrenching and classic Dead Sorrow).  Matthew R. Stevens, '21, posted the following on the class discussion board, and I think it makes a worthwhile complementary observation about tort awards in our age of debt and financial fragility.  Reprinted with permission.



Some Thoughts on Wrongful Death Damages
by Matthew Stevens – Friday, January 25, 2019

Professor Peltz-Steele discussed the idea of money damages in wrongful death actions, and their ability to make up for what was lost. He challenged whether they really made that pain any better, and whether a $1,000,000 award helps any more than a $500,000 award. I just wanted to share my thoughts on a possible argument that the monetary damages could help make up for what is lost.

The loss of a family member is surely nothing short of a nightmare. The impending depression, stress, and various other negative emotions can impact someone’s life in irrepressible ways. No earthly remedy could ever truly provide perfect relief for such a loss. I think it could be argued, however, that money is well suited to lessen the impact of the loss.

According to a Case Western study [reported here by CNBC], increased income can actually cause a “reduction in negative emotions” (CNBC, para. 6). Furthermore, the study also found that higher incomes could “reduce the incidence of serious mental illness” (CNBC, para. 6). It is important to note that the study is dealing with annual incomes, and not large lump sums of cash. The study also notes that the increase in happiness shows diminished returns as you reach upwards of $160,000 a year (CNBC, fig. 2). I think this can be reconciled by looking at the damages award as a lump-sum salary. For example, if a father at the age of 40 received a wrongful death damages award of $1,000,000, you could divide that award by the remainder years before retirement (25) to create a net increase in annual income of $40,000. That increased “income” could statistically reduce his negative emotions, and reduce the chances of serious mental illness. An award of $500,000 would surely help, but over time it would not have as big of an effect, only creating an extra $20,000 in annual income. This of course is not a fix-all, but it is certainly a start to fix the unfixable.

Moreover, on the other side of the coin, issues with money statistically causes large amounts of stress. An APA survey in 2014 found that “72 percent of Americans reported feeling stressed about money at least some of the time during the past month” (APA, para. 3). Furthermore, 22% experienced “extreme stress” over money in the past month (APA, para. 3). The study goes even further to explain the types of issues stressing over money creates, including avoiding medical care, and being a major conflict in relationships (APA, para. 5). So then perhaps the increased monetary awards for wrongful death actions could effectively reduce stress in the claimant’s life. With a large influx of cash, it is arguable that a lot of money-induced stress would be taken out of the picture and increasing the claimant’s quality of life.

This of course was a quick look into the idea of monetary damages and their possible ability to remedy the loss of a loved one. I would like to reiterate that I don’t believe money can ever replace the loss of a loved one, but I’m simply saying there is an argument that money helps reduce the net loss of quality of life for the claimant. It does appear that the theory holds some weight, but with its issues: one major issue being the diminishing returns on happiness when income reaches a certain threshold. Perhaps this could be integrated into the analysis more, but I wanted to keep a small scope for the analysis.

Tuesday, January 22, 2019

Comparative research overviews tort law throughout Central America

Dean Castro Valle
Dean Claudia Mar├şa Castro Valle of the Universidad Tecnol├│gica Centroamericana (UNITEC), Honduras, has published a fascinating comparative overview of Central American tort law in Louisiana State University Law's (11:1) Journal of Civil Law Studies (2018).  The article is available for free download.

Dean Castro Valle nimbly frames the civil law mechanisms of Central America in the context of tort objectives, considering the interplay of corrective and distributive justice and the amalgamation of Roman and Anglo legal principles.  There is too little such scholarship about Latin America, owing in part to the language barrier.  Dean Castro Valle's research arises in the context of regional interest in economic and legal integration, a reminder that Central America should not be forgotten as a rising and economic and political force in the twenty-first century.

Here is the introduction (footnotes omitted).

In order to achieve the proper protection of individual interests, tort rules need to be applied efficiently whenever these interests are subjected to any kind of harm. For that to be possible, the traditional approach has been the acceptance that any loss or injury sustained by legally protected interests must meet certain requirements. The requirements include the actual existence of specific regulation designed for their legal protection, compensability, imputability to a person other than the victim, and certainty. Hence, tort is generated from the infringement of the general duty of respect due to any legally protected interest. It is a non-contractual obligation imposed on a person, in order to compensate the holders of such interests, for any injuries or losses caused. These interests can be either material or moral.

The primary requirement for the application of tort law is that the sustained damages, losses, or injuries must originate from a negligent or intentional activity or omission. This means that care and
precaution were omitted in the execution of such activity, and that the causation between this activity and the harmful effects can be proved in a court of justice. However, tort liability is essentially patrimonial. Its function is to grant, impede or repair a specific economic loss, while its application allows the reparation of indirect patrimonial injuries and non-pecuniary damages.

The aim of this paper is to compare the way that tort liability is regulated in the Central American civil codes (Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, and Panama), understanding the similarities and differences in their approach. This sort of analysis could be the base of any harmonization effort, so relevant in the actual regional context, in view of the recent developments of the Central American economic integration process.


Friday, January 18, 2019

SCOTUS ponders governmental immunity in boating accident suit against TVA


The Federalist Society produced a beautifully illustrated video, as part the SCOTUSbrief series, to accompany the January 14 oral argument (transcript) in the U.S. Supreme Court in Thacker v. Tennessee Valley Authority, a personal injury suit.  The case compels the Court to analyze what, if any, governmental immunity is afforded to a range of New Deal entities, such as the TVA, which Congress broadly authorized "to sue and be sued," decades before the Federal Tort Claims Act came into being.  The Federalist Society generously invited me to provide narration for this video.  At SCOTUSblog, Professor Gregory Sisk, of St. Thomas Law, has an expert analysis of Monday's oral argument.  When available, audio of the oral argument will be posted at Oyez and at C-Span.