Thursday, September 17, 2020

'Miss Juneteenth' speaks both to problems of our times and to timeless problems

Thanks to the Duke (University) Screen/Society, yesterday, I virtually attended a screening and discussion of the 2020 film from Vertical Entertainment, Miss Juneteenth.  It is an insightful and gratifying film, so I want to make this note of it.  In our covid era, it's easy to miss new releases.

Written and directed by Channing Godfrey Peoples, Miss Juneteenth is the story of Fort Worth, Texas, teen Kai (Alexis Chikaeze) and her mom, Turquoise Jones (Nicole Beharie), as Kai prepares to participate in the Miss Juneteenth beauty pageant, a pageant that her mother happens to have won, back in the day.

Yet that description unfairly oversimplifies the film, as would any description that confined the story by race or class.  The film richly portrays Turquoise and Kai's lives.  It explores mother-daughter conflict, romantic entanglements, and socioeconomic struggles. Simultaneously, the film comments softly, not heavy-handedly, on pageant culture, civil rights, the American dream, and, of course, never trumpeted yet omnipresent, the glorious but unfulfilled promise of freedom marked by Juneteenth.

In a striking scene set in a Juneteenth museum, the young contestants are being oriented on Juneteenth history by a passionate docent when the schoolmarmish pageant wrangler directs the kids' attention to framed pictures of past Juneteenth queens.  The docent was speaking to the legacy of slavery, driven out of the American South, while the pageant director educates the girls on such etiquette nuances as table manners imported with the Pilgrims.  The girls' gazes drift to the latter display, which, I contend, speaks subtly but powerfully to how African-American communities have long wrestled with the fine line between cultural subjugation and assimilation that courses through American history from Reconstruction to Civil Rights to present day.  I'm reminded at once of Mike Pence's oddly third-person reference from Fort McHenry in August to "American people ... standing with ... our African-American neighbors" and Dulce Sloan's missive this week on The Daily Show with Trevor Noah, "The Messed Up History of Black Hair in America."

A character in the film once comments, "Ain’t no American dream for black folks.”  As we wondered at the latest news of government ineptitude yesterday morning, contemplating how our salaries are going down while our workloads are going up, my wife speculated that the anger and resentment that people both black and white feel toward the lack of opportunity for upward mobility in this country is really much the same.  The difference, she suggested, is that black people have always known that meritocracy is an American myth, while white people are just figuring it out.  (She cited Michael Sandel on WBUR talking about his Tyranny of Merit.)

Miss Juneteenth has given me a lot to chew over.  I haven't even mentioned my own daughter's foray into the pageant world when she was a teen: Miss Rhode Island High School 2016!  In Miss Juneteenth, as Turquoise is working herself to death to scrape together the money to support Kai's pageant bid, Kai's father, Ronnie (Kendrick Sampson), shakes his head: "An $800 dress just don’t make no sense to me."

Word for word, I swear, Peoples stole that line from me.

Here is the trailer from Vertical Entertainment.


Happy Constitution Day.

Monday, September 14, 2020

Mass. Chief Justice Ralph Gants dies


Massachusetts Supreme Judicial Court Chief Justice Ralph Gants has died.

Read more:
NECN
Boston Globe
Boston Herald

Also:
Ralph Gants on this blog

Chief Justice Ralph D. Gants was a graduate of Harvard undergrad and law, one-time AUSA, and recipient of an honorary law degree from UMass Law at 2016 Commencement (pictured and below).

Also:
On criminal justice reform with Jim Braude at WGBH News
On access to justice at Harvard Law School

HT @ Prof. Cleary.

Boston Bar webinar will probe privacy law latest

Coming soon, the Boston Bar Association will host a webinar on data privacy class action litigation (and related privacy stuff too).  I'm trying to get up to speed on all of the latest developments so that I will not disappoint moderator Melanie A. Conroy, attorney and CIPP/US, of Pierce Atwood LLP, who graciously if foolhardily invited me to participate.  For The National Law Review in April, Conroy wrote the authoritative rundown on the Mount Ida student class action, which treatment inspired me to write about the case for The Savory Tort.

My task is daunting; a lot happened while I was in Africa early in the year and out of the office over the summer.  Our subject matter includes the new regulations under the California Consumer Privacy Act, burgeoning lawsuits under the Illinois Biometric Information Privacy Act, and the shock waves just now hitting the United States from the "Schrems II" decision in the European Court of Justice.  (Brush-with-greatness note: Max Schrems has been in my car.  Long story.)  That's just to get the ball rolling.

Co-panelists are Matthew M.K. Stein, of Manatt, Phelps & Phillips, LLP, and Marjan Hajibandeh, of CarGurus, Inc.  Here are the program details from the BBA:

BBA Webinar: Roundtable on Recent Developments in Data Privacy Class Action Litigation
Thursday, September 24, 2020, 10:00 to 11:00 a.m.
This webinar will explore the growing prevalence of data privacy class actions through recent developments in data privacy legislation, expanded private rights of action, biometric privacy claims, consumer data suits, post-breach and cybersecurity litigation, and the increasingly complex landscape of rulings by federal courts of appeals. The presenters will discuss national trends and developments within the First Circuit and in Massachusetts. The discussion will look ahead to areas to watch and trends that may shape the development of data privacy class actions in the coming months and years.

The program is free for BBA members and $100 for non-members. Registration at least two hours before the program-start is essential to receive the Zoom link.

Sunday, September 13, 2020

Animal champion Barr, J.D. '21, wins scholarship

Abbey and Toby
An alum of my torts class and president of the Student Animal Legal Defense Fund at UMass Law (I'm a faculty adviser), Abbey Barr is one of three first-place national winners of the 2020 Advancement of Animal Scholarships.  The scholarships are awarded by the national Animal Legal Defense Fund (ALDF) for supporting the organization’s mission “to advance the interests and protect the lives of animals through the legal system.”

Here's coverage of Abbey at ALDF; read more at UMass Law.  From hometown Falmouth, Mass., and a graduate of sociology from Keene State College in New Hampshire, Abbey is passionate about animal protection, besides being an energetic collaborator and valuable counsel to her peers.  I look forward to her vibrant advocacy as a member of the bar, and to the difference she's going to make in the lives of many of God's creatures.

Saturday, September 12, 2020

Defamation case against Trump fits woeful pattern, while DOJ defense is defensible, if disconcerting

Notice of Removal in Carroll v. Trump
The recent news (e.g., N.Y. Times) that the Department of Justice (DOJ) will defend the President in the defamation suit arising from sexual-assault allegations by E. Jean Carroll has caught the interest of both my Torts I class and my Trump Litigation Seminar (TLS).  The DOJ's announcement manifests on the docket in removal of the case from the New York Supreme Court to the U.S. District Court for the Southern District of New York.  Links and key court documents are now posted atop The Savory Tort's TLS blogsite.

The strategy of using a sexual-assault denial and accompanying charge that the accuser is a "liar" as the basis for a defamation suit against the alleged perpetrator, i.e., Carroll v. Trump, is now, unfortunately, a familiar feature of our high-profile tort-litigation landscape.  It might have been Bill Cosby who committed the pattern to popular culture's long-term memory.  The Cosby case came complete with counterclaims, making the defamation dispute the dueling ground for truth and falsity.

It's unfortunate, because the tort of defamation was not designed to be a truth-finding mechanism.  Historically, truth wasn't even a defense; that's a modern artifact inferred by the freedom of speech.  The flaws in our defamation law are legion and one of my favorite subjects; one that matters here is that defamation is rarely capable of delivering exoneration, much less satisfying any of a plaintiff's legitimate aims.

Among reforms of defamation that have been proposed over the years are mechanisms to ferret out and publicize truth, rather than focusing on the plaintiff's alleged injury or the defendant's asserted rights.  Though not always well crafted, laws that incentivize correction or settlement over protracted litigation at least aim in the right direction.  Regrettably, reform of defamation has been hamstrung for decades by the Supreme Court's well intentioned but ultimately improvident constitutionalization of defamation in the 1960s and 1970s.  I hope one day, we'll wade our way out of that morass.

Anyway, on the question of the DOJ's intervention, there's a curious conundrum about Carroll v. Trump.  The DOJ position is that Trump was acting in the scope of the office of the President when he denied Carroll's sexual-assault allegations.  We would, after all, hope that any President would deny such allegations, and we would have to admit that the truth of the allegations bears on his fitness for office.  Thus, the DOJ reasons, it must represent the position of the President.  The bitter pill for Trump opponents to swallow is that that's probably right.

The kicker comes in that Trump's denial is only presidential if he's telling the truth.  If he did what Carroll alleged, then the operative facts of the case occurred before Trump was elected.  His later denial then feels more like the mere pleading of a private defendant in an ordinary civil suit.  You know, one in which we might debate what the meaning of is is.  So the rationale for defense by DOJ is predicated on the very question at issue in the litigation.  For DOJ to take the President's denial as true, for now, is a fair, if uncomfortable, choice.  If one day the court rules in Carroll's favor, though, maybe we can send the legal bill to the former President.

Thanks to TLS student Ricardo Serrano and Torts student Paul McAlarney for helping me think about this one.

Friday, September 11, 2020

Union, university collude to cut Mass. higher ed pay

UMass Dartmouth (LGagnon CC BY-SA 3.0)
The faculty union and university here at UMass Dartmouth, which includes UMass Law School, are busy about the business of colluding to cut faculty (and staff and admin and everyone's) pay in response to financial (mis)management of the covid crisis.  The draft Memorandum of Agreement came out today; temporarily, I am parking a copy here.  In salient part:

The salary reduction shall be calculated as follows[:]

a. There shall be no reduction on the first $30,000 of regular salary and any regular contractual or other stipend for any faculty or staff member.

b. For each $5000 in excess of this threshold there shall be a salary reduction calculated as a percentage of the faculty or staff member’s marginal salary. This percentage reduction shall start at 5% (0.05) and shall increase by 1 percentage point (0.01) for each step up to a maximum of 10% (0.10).

In the law school, we were already hit with a $7,500-each cut in summer research support, which is a little under 5% for me, much more for others. With two generations of educational debt and current college bills looming over our heads in my family, this cut, just more than 12% in sum, hurts.  In a meeting of faculty yesterday, I got a sense of the impact on the lower ranks and less job-secure, and I was left livid.

The progressive structure was the union's idea, not the university's.  The university only asked for 5% across the board.  On Friday, union president Grant O'Rielly gleefully boasted to members that that wasn't good enough, so the union proposed a progressive plan to ensure that higher paid faculty would pay even more money and suffer a higher rate.  Victory!  The university was so impressed that it accepted and gave the union a pat on the head.  Maybe a cookie, too.  Though there was no mention of a cookie.  

The saddest thing here is the aforementioned collusion between union and university to make this all happen.  They entered into a pact by which no jobs would be lost on either side.  But on the admin/management side, there might ought be some jobs shed, and I scarcely see there would be impact on our educational mission.  You can't spit on main campus (not that you should spit in public, especially now) without hitting a handsomely compensated assistant vice chancellor of something-something.  I'm sure students will take solace in knowing that those jobs are all safe, while their newly virtual and long beleaguered legal skills instructors will now make less money than when they were hired.

The union entertained no other alternatives, either, besides admin cuts.  A reserve fund sits at UMass HQ in Boston, untapped.  As a colleague said yesterday, "it's for a rainy day, and it's raining."  The union didn't proffer a faculty furlough for December/January or May, which we could accomplish without cutting into the class schedule, and then faculty would be eligible for unemployment compensation.  Staff furloughs work that way.  The union didn't negotiate for a better separation-incentive program, or reduced workloads, or summer research support, or even a guarantee that the university can't come back to the well again next year.  The union just rolled over in self-effacing obedience to their management masters.

The greatest insult comes to those of us not in the union.  Thanks to Massachusetts's purported system of exclusive representation, we are compelled to accept the pay cut upon a union negotiation and vote in which we have no say.  And the university, to date and despite my demand, refuses to negotiate with us separately.  If that sounds, well, unconstitutional, yes, I think it is, especially since Janus.  That case said we couldn't be compelled to pay for union speech with which we disagree.  It hardly makes sense, then, that we are compelled to speak with union speech with which we disagree.  I am presently seeking counsel, and there's more than just me, so get in touch, #RightToWork advocates.  Exclusive representation is being challenged meanwhile in other states.

Massachusetts's bargain-basement approach to public education—a real shock to us when we moved here in 2011—was already criminal, especially for a blue state boasting a Kennedy legacy.  Now the state's proud blue labor tradition is belied by the reality that unions are co-conspirators in the crime.  Together the university and union make a mockery of UMass Law's "social justice" mission.

[UPDATE, Sept. 12, 2020:] 

In a case involving the University of Maine, the First Circuit upheld exclusive representation in state law.  The complainant is Jon Reisman, an economics professor at the University of Maine at Machias, and the case is now pending cert. review in the U.S. Supreme Court.  (Hat tip to a D.C. colleague.)

The First Circuit's reasoning is succinct and somewhat baffling.  The court held simply that state law requires the union to bargain for everyone, members and non-members, as a bargaining unit, but not as individuals; thus, Reisman is not "personally represented" and may be subject to whatever terms are struck for the bargaining unit.

Aside from the illogical and constitutionally unknown distinction between speaking for a "unit" and speaking for people, I fear Reisman's case was premature. At UMass Dartmouth, we see the damage wrought by exclusive representation, and the First Amendment problem is laid bare. The First Circuit pointed to Reisman's ability, under Maine law, to communicate grievances directly to the university, without going through the bargaining unit (though a union representative is then brought in to resolve the matter). At UMass Dartmouth, the university has expressly refused to hear grievances outside the union (specifically, mine).  Reisman also did not well articulate any concrete injury, rather, only the intangible harm of compelled association. At UMass Dartmouth, union non-members are about to suffer a big pay cut.  

Moreover, UMass Dartmouth non-members have been kept completely in the dark about the pay cut and excluded from informational meetings, debate, and voting on the measure.  So it can hardly be said that the union at UMass Dartmouth is acting on behalf of a bargaining unit of the whole, members and non-members alike.  The First Circuit's reliance on how things are supposed to work in the idyllic vision set out in statute in Maine bears no relation to the plain First Amendment affront playing out in practice in Massachusetts.

_________________

A reminder that this is my blog, not edited or controlled by UMass Law/Dartmouth.  At the same time, I write in furtherance of public service, which is part of my job, and in which capacity I am protected by custom, contract, law, and the First Amendment.

Monday, September 7, 2020

Immunity shields tweeting legislators from libel suits, Elizabeth Warren from high school plaintiffs

High schoolers from Kentucky will not get their day in court against Elizabeth Warren.

The students' lawsuit, high profile in the political sphere, was resolved in the Sixth Circuit yesterday on mundane grounds that offer a reminder to torts students of a simple immunity rule.

Remember the fuss in January 2019 over that video of Catholic high school students on a field trip said to be taunting a Native American elder demonstrating at the Lincoln Memorial?

Remember when people used to stand really close together like that?

There were two dramatically different sides to the story about what was really happening there, and they were as far apart as young people joining in celebration of Native American heritage, on the one side, and "MAGA" has inspired privileged youth to racism, on the other side.  For a breakdown that gets closer to the truth, see, e.g., Vox, Jan. 24, 2019; Reason, Jan. 21, 2020.

Senator Elizabeth Warren (D-MA) and Representative Deb Haaland (D-NM) tweeted about the affair from the perspective that cast the students in the wrong.  Haaland wrote, "The students’ display of blatant hate, disrespect, and intolerance is a signal of how common decency has decayed under this administration. Heartbreaking."  And Warren: "Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better."

The students sued the legislators for defamation, asserting that the darker interpretation of events was false.  On Thursday last week, the Sixth Circuit affirmed dismissal of the lawsuit—which is not to opine one way or the other on the students' claim of falsity.

As the court observed, the Speech and Debate Clause has no application on Twitter.  But a much simpler analysis pertained.  Whilst tweeting, Haaland and Warren were acting within the scope of their employment with the U.S. Government.  And the Federal Tort Claims Act (para. (h)) does not waive federal sovereign immunity for defamation committed by its employees—even the elected kind.

The case is Does 1 through 10 v. Haaland, No. 2:19-cv-00117 (6th Cir. Sept. 3, 2020).  Circuit Judge Eric Clay authored the opinion for a panel that also comprised Judges White and Readler.

Saturday, September 5, 2020

Seeking right-to-work labor counsel for 'Janus' redux

I have exercised my right under Janus v. AFSCME to separate from my public-employee union. The union plans, without my approval, yet purporting to act on my behalf, to consent to a workforce-wide pay cut that will affect me, and affect me disproportionately adversely. It seems to me that Janus is meaningless if my pay can be cut, against contract, upon the consent of a union with which I have a First Amendment right not to affiliate. Pay cut looming, I am in no position to pay for counsel. Does Janus mean anything, or is it just words on a page? Contact me.

[Read more: Sept. 11, 2020.]

Thursday, September 3, 2020

My Summer Book Report (2020)

Coronavirus propelled UMass into financial crisis in the spring, and, as a result, law faculty summer research stipends evaporated.  With that change in incentives to compound coronavirus travel restrictions, I found myself with more than the usual time to catch up on reading this summer.  I'm going to try to keep my observations here brief; drop me a line if you want to talk more detail.  (All links are to Amazon.)

Books About Soccer


When I signed off from the blog in May, I wrote about starting two books from Australia, Whatever It Takes: The Inside Story of the FIFA Way and The Aboriginal Soccer Tribe.  The former remains for me the definitive story of the fall of FIFA and corruption of global soccer.  Whatever It Takes was written by whistleblower Bonita Mersiades, once an Australian football executive.  I met her at Play the Game and immediately became a big fan.  I filled out the FIFA story with David Conn's Fall of the House of FIFA: The Multi-Million Dollar Corruption at the Heart of Global Soccer and Ken Besinger's Red Card: How the U.S. Blew the Whistle on the World's Biggest Sports Scandal.  Conn's book gave a thorough global picture, but I didn't enjoy its journalistic perspective as much as Mersiades's animated firsthand account.  Red Card was a compelling take on the story from the U.S. law enforcement perspective; it's a good read for students of U.S. criminal justice.  I especially appreciated it in coincidental tandem with the thoroughly enjoyable TV series El Presidente on Amazon.

By John Maynard, The Aboriginal Soccer Tribe is a tribute to the best players of Indigenous Australian ancestry and their experiences and undersung impact on soccer in Australia.  Joshua Nadel's Fútbol: Why Soccer Matters in Latin America does similar work for that continent, colored with somewhat more attention paid to the interaction of soccer and Latin America's tumultuous independence movements and subsequent political upheavals in the twentieth century.  In African Soccerscapes: How a Continent Changed the World Game, Peter Alegi also takes a continental approach, but thoughtfully traces players through the post-colonial interdependencies of African socioeconomic development and big-business European sport.

Simon Critchley in What We Think About When We Think About Soccer and Tamir Bar-On in The World Through Soccer: The Cultural Impact of a Global Sport both endeavor to make the social sciences of sport palatable for average people such as me.  Perhaps neither rises to the gold standard of David Goldblatt or Franklin Foer, but both books are rewarding, congenial reads and make worthy contributions to the literature.  Bar-On's is the more academically rigorous, but Critchley made philosophy fun for my freshman fluency.

My unexpected favorite of these books in the cultural studies vein was The Away Game: The Epic Search for Soccer's Next Superstars.  Sebastian Abbot takes the reader inside the world of the football talent scout and training camps, especially the lives of young African players thrust against the high stakes of the sport business in Europe and the Middle East.  I didn't know how much I didn't know, and the reality of this under-acknowledged netherworld is unsettling.  The painful truth is that the contemporary colonialist harvest of African talent is hideous, and, yet, it can't so wholly and easily be written off as exploitation.  It's complicated.

Books About Free Speech

I read many books about free speech, and I've loosely divided them into three categories here.  The broadest ranging works in this "general" set are Timothy Garton Ash's Free Speech: Ten Principles for a Connected World, Lee Bollinger and Geoffrey Stone's The Free Speech Century, and Floyd Abrams's The Soul of the First Amendment.  Ash's book is described by a reviewer as "encyclopedic."  It is; it's otherwise difficult to categorize and difficult for me to grasp the scope of his knowledge and insight.  With a trans-Atlantic perspective, he grapples with the adaptation of free speech norms to our globalized world.  The Bollinger-Stone collection is at times interesting.  One might ought pick and choose from the contents; it would serve best as a course-supplement reader.  The Abrams book is a paean to free speech, not terribly original but eminently quotable.

Samantha Barbas's Newsworthy, Eric Robinson's Reckless Disregard, and Jeff Kosseff's Twenty-Six Words are legal biographies, respectively of Time, Inc. v. Hill (U.S. 1967) (false light privacy tort), St. Amant v. Thompson (U.S. 1968) ("actual malice" as recklessness "plus"), and Communications Decency Act section 230 (1996) (ISP immunity).  Each is a solid legal history with important contemporary implications.  Robert McWhirter offers a well organized and beautifully illustrated history of the First Amendment, appropriate to scholars of all ages, in The First Amendment: An Illustrated History.

The unexpected best of this set was Mark Tushnet, Alan Chen, and Joseph Blocher's Free Speech Beyond Words: The Surprising Reach of the First Amendment.  I had not expected to be so captivated by this work that dares to investigate a question typically glossed over: why, and to what extent, should non-speech, such as art and conduct, be protected by the legal freedom of speech.  This interdisciplinary analysis unpacks a problem that runs as deep as the very nature of the human being as a social animal.

Books About Hate Speech and Free Speech on Campus


This second set of free speech books I classify as about campus speech, though the books about hate speech plainly have broader application.  A range of perspectives is to be found here.  I am persuaded to the more absolutist view of Nadine Strossen, who has capably maintained and defended a consistent position over decades, even as academia and neo-liberal thought have left her increasingly out in the cold.  She sticks to her guns in Hate: Why We Should Resist It with Free Speech, Not Censorship.  Anthony Lewis's book in the same vein is disappointing.  I'm a big fan of Lewis's insightful Make No Law (1991), the seminal biography of New York Times v. Sullivan (U.S. 1964).  Unlike that book, this rather facile treatment, Freedom from the Thought That We Hate: A Biography of the First Amendment, could have been written by a research assistant.  

In Speak Freely: Why Universities Must Defend Free Speech, Keith Whittington builds the best possible case for universities to care about free speech.  I fear, however, that he gives today's university too much credit for not already being overrun and ruled by bean counters.  Sigal Ben-Porath has the most academic offering of these with her Free Speech on Campus.  But I was frustrated by her refusal to take a firm position consistent with the title of the book, free speech, as if she were afraid of tarnishing left-wing bona fides for failure of sufficient sensitivity.  Finally, the entertaining Mick Hume, a hardened alum of the U.K. newsroom, thinks about trigger warnings what Lou Grant would have thought about them, and he isn't afraid to tell you about it in Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?  Spoiler alert: yes.

Other Speech Reads


This last set of free speech books I'm calling "free speech-related."  David Rieff's In Praise of Forgetting: Historical Memories and Its Ironies is one of the most memorable books of my summer.  I read it because I am endlessly intrigued by the right-to-be-forgotten issue and the problem of cultural memory emphasized by institutions such as the stunning Museum of Memory and Human Rights in Santiago, Chile.  Rieff turned upside down and shook an interrogation out of everything I thought I knew about the subject, leaving me with a highly uncomfortable uncertainty about what we should remember as a global human society, and whether we're anyway invariably doomed to forget all the right stuff.  I also picked up (used) Carol Fichtelman's Right to be Forgotten: Legal Research Guide.  It's essentially a bibliography and good for its 2018 publication date, but already in 2020, at about $15, I overpaid.  I'm not sure why WS Hein decided to bind and sell what should be a free online resource.

Adcreep: The Case Against Modern Marketing is a book I picked up at a Law and Society conference a couple of years back.  I'm interested in the implications for commercial speech, and Mark Bartholomew amply demonstrates the how and why of something we're all instinctively aware of: that we as individual consumers are hopelessly outmatched in today's sophisticated commercial marketplace of ideas.  Finally, I read through an unusual item that's been on my to-do list for a while: John Greenewald Jr.'s Beyond UFO Secrecy.  Wait wait, before you come to confiscate my tin foil hat: I read this book because of its acclaim in the Freedom of Information Act (FOIA) community.  Much of the book's leaves are dedicated to the reproduction of produced government documents blackened with redactions, which is fun and interesting for the FOIA enthusiast.  You will get your ink's worth and your conspiracy suspicions stoked.

Other Reads

Tom Wolfe achieves his usual excellence in The Kingdom of Speech, which compelled me to break my blog hiatus in late summer.  The Curve: A Novel, about life at the "Manhattan Law School," by Jeremy Blackman and Cameron Stracher, was a delightful self-indulgence in fiction, though if you've ever worked in academics, it'll have you recollecting the truths that are stranger than....  In contrast, Kent Newmyer, The Treason Trial of Aaron Burr is hardcore nonfiction, if excellent supplemental reading for the Hamilton devotee: a biography of one of the most important legal cases in U.S. history that somehow usually manages only the scarcest mention in constitutional legal studies.  Equally serious about its social science, Dancing Bears: True Stories of People Nostalgic for Life Under Tyranny tells both the nonfiction history of said bears and the story of their masters, the latter amid a psychoanalysis of dark reaches in the collective human mental condition.  More than once a Polish friend has recommended Witold Szabłowski's book when I struggled to understand something about eastern European thinking.  And ... yeah, I see it now.  Con Job: How Democrats Gave Us Crime ... I know will seem an odd pick for those who know me; I don't usually take my partisanship without at least a teaspoon of Splenda.  I admit to interest in how Crystal Wright, self-described "Conservative Black Chick" came to be who she is.  As I suspected, disillusionment is not a partisan affliction in America, and we ignore it at our peril.

Most memorable of this set was Mikey Walsh's haunting Gypsy Boy: My Secret Life in the World of the Romany Gypsies.  It had been on my to-do list for years, and I never quite felt up to the heartrending drama.  It's not unlike Hillbilly Elegy.  Walsh evinces a grudging appreciation of his Romany heritage and teaches the reader a great deal about its proud traditions, alongside its shames.  The journey was at times painful, but overall enriching.

I only got about halfway through my summer reading to-do list, so more books await.  For now, though, I need to get back to figuring out how to teach 1L Torts online.  Happy reading.

Wednesday, September 2, 2020

While U.S. Congress ponders Big Tech oligopoly, Uruguay Supreme Court upholds TV football for all

While our powers-that-be in Congress wring their hands over trying to reconcile allegiance to our corporate overlords with antitrust in the tech sector, a court decision in Uruguay is worth noting.  The Supreme Court of Justice in the country of La Celeste held constitutional a law that compels the free live broadcast of some national soccer and basketball games.

Uruguay v. Costa Rica in World Cup 2014
(Danilo Borges/Portal da Copa CC BY 3.0 BR)

The ruling, sentencia no. 244 de 17 de agosto 2020 (search "244/2020" here), doesn't cover many games.  Explaining the case in 2019, a representative of the appellant Uruguayan Football Association (AUF) told El Observador (Uruguay) that the law would cost the franchise only some of nine Uruguay football qualifiers in four years. AUF still insisted that its economic interests were meaningfully and unconstitutionally diminished by the imposition.

Notwthstanding the limited reach of the ruling, the Court's willingness to abrogate private economic rights to further the public interest is significant.  Accepting the rationale for the law, the Court wrote, "Recuerda y resalta la Corte que la selección uruguaya de fútbol, en función de las hazañas deportivas y copas obtenidas en campeonatos mundiales y juegos olímpicos, forma parte de la identidad nacional y es tópico actual y recurrente en la ciudadanía." ("The Court recalls and emphasizes that the Uruguayan football team, as a function of its sporting achievements and championships won in the World Cup and Olympic Games, forms part of the national identity and is a current and continuing subject among the people.")

The ruling, on article 39 of the Ley de Medios, No. 19307, is one in a series from Uruguayan high courts (e.g., Observacom, Aug. 15) in recent months examining constitutional challenges to a far-ranging 2015 package of populist telecommunication reforms.  Civil rights advocates have hailed the courts' rulings for upholding the constitutional framework of the media law overall.  But business challengers have succeeded in blocking some restrictions, such as a limitation on subscriber numbers for cable TV providers, as unduly burdensome of commercial freedom.  For further example of the mixed results, the Court upheld article 40, which licenses Televisión Nacional de Uruguay to broadcast a game if no other broadcaster bought the rights.  But the Court struck down a subparagraph of article 39 that gave the executive authority to convert matches to free TV by resolution recognizing the public interest.

The telecommunication reforms have been championed by "center-right" Uruguay President Luis Lacalle Pou, who came to power in March 2020 after a hard-fought election and contested run-off.  Upon a campaign theme of "Uruguay seguro, transparente y de oportunidades," President Lacalle Pou promised to push back against left-leaning policies of the previous fifteen years with a raft of reforms aimed at slashing spending, controlling crime, combating corruption, and realigning foreign policy.  Whether or not he could have delivered, he has been, like leaders around the world, hampered by the coronavirus crisis.

Hat tip at Observacom Executive Director Gustavo Gómez (Twitter) for reporting on the case.

Tuesday, September 1, 2020

Libel suit must follow first online post in less than three years, Mass. court rules, applying U.S. norm

The Massachusetts Appeals Court today opined that the "single publication rule" of American libel law causes the statute of limitations period for a defamation claim to start running on the day that a news outlet posts the contested content online.

In American libel law, the single publication rule means that a plaintiff may sue only upon the first publication of allegedly defamatory content.  The content may thereafter be distributed through other publications and other media, amplifying the injury to the plaintiff.  That amplification can count toward damages if the plaintiff prevails.  But there may be only one cause of action for defamation, and the clock for the statute of limitations, the time within which the plaintiff must bring suit, starts running from the time of first publication.  The rule is said to serve interests of both judicial efficiency and fairness to defendants.

A newspaper is printed in 2013 on an 18th-century press
in Colonial Williamsburg. (Maggie McCain CC BY 2.0)

There are exceptions to the single publication rule, namely when content is republished to a substantially different audience or is substantially altered and then republished.  The lines drawn by these exceptions became fuzzier in the internet age, because the internet can be characterized as a sort of ongoing "republisher," such that content is published anew with every user download.  Some plaintiffs were able to chart exception to the single publication rule by asserting alteration in the creation of online archives of dated print material, an issue that reverberates in the debate over the right to erasure, or "right to be forgotten."

The norm that emerged in the digital age in the United States is that the first posting of content online counts as the time of first publication.  In a decision today, the Massachusetts Appeals Court followed that norm.

The plaintiff, Wolsfelt, sued defendant Gloucester Daily Times for its coverage of reported incidents of domestic violence.  In each of two incidents, Wolsfelt was arrested.  After the first incident, in November 2011, the Times published online a story that, according to the Court, "largely tracked the police report."  When in February 2012 the criminal court "entered a 'general continuance' with a 'no abuse' order," the Times updated the story online to report "assault and battery charges ... continued without a finding."

After the second incident in June 2012, the Times again published online a story that "largely tracked the police report."  When in February 2013 the criminal court entered "a continuance without a finding" in that case, the Times updated the story online to report a "charge of assault and battery ... continued without a finding for 18 months."  Charges were dismissed in 2012 and 2014, respectively.

In a defamation complaint in February 2015, the plaintiff "asserted that the articles contained 'untrue, incomplete, misleading[,] and damaging assertions,' resulting in harm that included loss of reputation and potential employment."  But the complaint was not filed until more than three years after the first article, its update, and the second article.  The complaint was filed just under three years, the statute of limitations in Massachusetts, from the publication of the second update.  The plaintiff said he learned about the articles only upon applying for employment in February 2013.

The Court affirmed rejection of the complaint insofar as it was predicated on the first three publications, because the statutory limitations periods on those pieces had run.  Analyzing the second update alone, the Court ruled that it was protected by the fair report privilege, a common law affirmative defense to defamation that protects reporting on public records even if the public records themselves, and therefore reports about them, might contain defamatory falsehoods.  The court's decision is consistent with the single publication rule as applied to the internet by courts in other states.

The single publication rule at one time marked an important difference between common law defamation in the United States and defamation law elsewhere in the world, notably the United Kingdom and other common law jurisdictions.  The lack of a single publication rule in other countries exaggerated the problem of "libel tourism," the phenomenon of plaintiffs shopping for forums friendlier than the United States in which to sue for defamation.

However, adaptation of defamation to the internet, with its unprecedented capacity for republication, created far more headaches in legal systems without the single publication rule than in the United States.  Without the rule to draw the limitations period to a close, causes of action based on web publication seem potentially endless.  Accordingly, the single publication rule has gained traction as a U.S. export.  The rule was adopted in the U.K.'s major statutory overhaul of defamation in 2013.  And the rule has been a point of proposal in Australia's ongoing defamation reform.  The single publication rule became law in New South Wales in July (Lexology).

The case is Wolsfelt v. Gloucester Times, No. 19-P-936 (Mass. App. Ct. Sept. 1, 2020).  Justice Dalila Wendlandt wrote for a panel that also comprised Justices Singh and McDonough.

Monday, August 31, 2020

Horrors at Oak Ridge Psychiatric amounted to assault, battery, but lacked intent for IIED, Ontario court rules

From 1963 to 1988, patients involuntarily committed to the maximum-security Oak Ridge Mental Health Centre at Penetanguishene, Ontario, were subject to barbaric experimentation.  (From CBC (2016), above.) Treatments included LSD, other mind-altering drugs, and corporeal maltreatment, such as "the Capsule":

a soundproof, windowless, and constantly lit 8’ x 10’ room, with no furniture and an exposed toilet, where groups of patients, had their interactions monitored through closed-circuit television and a one-way mirror by patient observers outside....

Patients ... were frequently restrained or strapped to each other, and were most often injected with DDT drugs to lower their inhibitions. They were often paired so that patients diagnosed with schizophrenia experiencing a chaotic range of emotions where placed together with patients with antisocial personality disorders....

So egregious were the methods employed at Oak Ridge that 28 former patients now suing the Crown could have made out a fair case for medical negligence.  But the Ontario court was willing to find intentional torts, assault and battery, instead.  Notwithstanding lawful involuntary commitment and seeming express consent to treatment procured from patients, the extreme nature of the medical experimentation rendered the patients' informed consent impossible, the Ontario Superior Court ruled in June.

At the same time, the patients could not prove intentional infliction of emotional distress, for want of "double-duty intent" (my words); that is, although medical staff inflicted emotional distress intentionally in the short term, and notwithstanding the lasting psychological trauma that resulted, the defendants, however misguided, acted with the greater goal, or intent, of making the patients well.

Hat tip to Private Law Theory, which reported an examination of the case against an historical analysis of battery in Canadian common law by Omar Ha-Redeye, executive director of the Durham Community Legal Clinic in Oshawa, Ontario.

The case is Barker v. Barker, 2020 ONSC 3746 (CanLII) (Ont. Super. Ct. June 25, 2020) (Canada).

Watch and read more about Oak Ridge with Canadian Broadcasting (2016) (above) and in other sources.

Saturday, August 29, 2020

Conservationists battle to curb wildlife trade in wet markets, attorney Venckauskas writes

Prawns at a Marché Kermel in Dakar, Senegal, in February
(RJ Peltz-Steele CC BY-SA 4.0)
Attorney Kayla Venckauskas wrote an overview of conservationists' efforts to curb wildlife trade in wet markets since the emergence of coronavirus.

China's ban has loopholes for research, pets, and medicinal purposes, Venckauskas reported.  Conservationists are pushing for legislation elsewhere, too, for example, Vietnam and Australia.  But some observers argue that tight restrictions will only foster an unregulated underground market.

Based in the Boston area, Venckauskas (Twitter) is the first Rena Roseman Legal Fellow with Mercy for Animals.  She was once leader extraordinaire of the Student Animal Legal Defense Fund at UMass Law, and she seemingly effortlessly aced my 1L Torts classes.  Her piece, "COVID-19 Forces Countries to Reexamine Wildlife Trade in Wet Markets," appeared in the summer 2020 edition of the newsletter of the Animal Law Committee, a division of the Tort Trial and Insurance Practice Section of the American Bar Association.

Read more about wet markets at Mercy for Animals, "What do wet markets and factory farms have in common?," by Hannah Bugga (Apr. 20, 2020).

Friday, August 28, 2020

Conditions of criminal pretrial release shouldn't abate civil abuse prevention order, Mass. court rules

In a decision today, the Massachusetts Appeals Court reversed and remanded a trial judge's refusal to extend an abuse prevention order.

The order meant to protect a woman who had testified to physical abuse by her husband, who blamed her for the premature birth of their daughter.  According to testimony, "[a]s she tried to nurse the baby, the defendant painfully grabbed at her breast"; he shoved the woman; he threatened her and the baby; and he called the woman "'a horrible mother because [she] wasn't fat enough and wasn't eating enough.'"  The man was charged with (criminal) assault and battery.

The trial judge refused to extend the abuse prevention order because he improperly considered conditions of pretrial release and involvement of the Department of Children and Families as duplicative of the order.  The court explained:

Conditions of pretrial release are within a judge's broad discretion, and the civilian victim has no right to be heard on the matter. Furthermore, conditions of pretrial release are terminated automatically when the criminal case is disposed.

For these reasons, conditions of pretrial release, even if they encompass the same conditions as an abuse prevention order, are no substitute for an abuse prevention order. The same reasoning applies to DCF involvement. DCF has no power to incarcerate a person for engaging in abuse of a household or family member. At most, DCF can take custody of a child and refer the matter to law enforcement....

Rather than rely on these factors, a judge should simply determine whether the plaintiff has shown "a reasonable fear of imminent serious physical harm[,]" ... or whether the plaintiff has "suffered physical abuse" or "past sexual abuse" and "an order [i]s necessary to protect her from the impact of that abuse." [Citations omitted.]

The ruling thus marks the significant differences among civil, criminal, and administrative processes, each with its separate aims, even when all three are implicated in a case of domestic violence.

The case is Vera V. v. Seymour S., No. 19-P-1674 (Mass. App. Ct. Aug. 28, 2020).  Justice Joseph M. Ditkoff wrote the opinion for himself, Justice Gregory I. Massing, and Justice Sookyoung Shin.

(U.S. Air Force graphic by Staff Sgt. Michael Means.)

Monday, August 24, 2020

Corcos probes symbiosis of law and pop culture

My colleague at Louisiana State University Christine Corcos has published "Three Ways of Looking at Law and Popular Culture," appearing in Propriete Intellectuelle et Pop Culture: Nouveaux enjeux, nouveaux defis (IRPI 2020) (conference proceedings) (Amazon France).  The full work is not available online at present, but, meanwhile, the abstract from SSRN is a worthy lesson in itself:

In 1989 the Stanford University Law School professor Lawrence Friedman offered a definition of “popular legal culture.” In an often-cited article, he wrote that, “In the first place, legal culture acts as an intervening variable, a mechanism for transforming norms of popular culture into legal dress and shape. In the second place, legal and popular culture, as images of each other, help explicate and illuminate their respective contents”. He notes that law and culture interact in two ways. Law is outward-looking; it depends on and interacts with the society from which it springs. At the same time it shapes that society. We can and do also talk about at least two current and differing uses of law and popular culture in legal education. We can use law and popular culture to teach legal principles. This use makes legal doctrine entertaining and accessible. We can also dig for the messages it gives us about the interaction of law and society. This second method requires us to interact with the texts of both law and popular culture.

Currently in legal education we can and do examine at law and popular culture in both of the ways Friedman identifies. I suggest that we can identify and should examine a third intersection of law and popular culture that scholars have begun to study, that I suggest we should formally acknowledge as a part of law and popular culture studies. This third intersection is the actual trans-formative effect or trans-formative turn that popular culture and law have on each other. I would suggest both that certain types of intellectual property studies and certain types of activity fall into this category. One example is law’s response to the creation of fan fiction and of fan use of copyrighted and trademarked materials that force a response from the rights holders, or force fans to cease a particular activity because the rights holders refuse permission to proceed. We have many examples of the legal responses and changes in norms that illustrate these interactions. What we don’t yet seem to have in the general theory of law and pop culture is a definition for this third intersection. It may be that this third intersection is now most obvious in intellectual property law, perhaps because of the accessibility and spread of technology as well as the overwhelming importance of social media in our lives today. It exists in other a
reas of law as well, for example in family law, in criminal law, in privacy law, and has for some time. I would suggest that this intersection creates the possibility for the working out of the tensions between law and culture, as the public through pop culture identifies how the law works, what the law is, and then reacts to the law, makes demands on the law, and in some cases, forces changes in the law.

Professor Corcos has been my role model for teaching law with popular culture since we met 20 years ago.  Recently she published, as editor and contributor, The Media Method: Teaching Law with Popular Culture (Carolina Academic Press 2019) (Amazon), to which I was fortunate to be able to contribute a chapter on 1L Torts (abstract).

Friday, August 21, 2020

Law students embrace bad lawyering

My colleague Amy Vaughn-Thomas gave a terrific assignment to students in her Professional Responsibility (Legal Ethics) class this summer:  Make a bad (unethical) lawyer ad, then write a paper about its faults under the rules of professional responsibility.

Students ran with the assignment, including the team that invented bad lawyer "Jeb Dundy."  From content producer Fatiga Mental (friend of the blog: Ig, Tw) and law students Noah Aurelio, Ricardo Serrano, Sebastian Garcia, and Samantha Tuthill, here is a lawyer for our times. See if you can spot the ethics issues.

Credits:

Suffice to say, the paper practically wrote itself.

Saturday, August 15, 2020

'Our Side': Short film on immigration crisis in Italy earns Academy nomination in narrative


Last year, my daughter, Morgan Steele, worked as a script supervisor on a short film in Sicily.  Our Side (2020), directed by Nicola Rinciari, is an intriguing and timely snapshot of fictionalized human drama amid the very real immigration crisis in Europe.  The film has been nominated for the Student Academy Award in narrative.  Here is the trailer:

 

"Our Side" Trailer from Nicola Rinciari on Vimeo.

Thursday, August 13, 2020

Knowles, Metroka enter the fray on free speech today

My friend and colleague Dr. Helen J. Knowles, SUNY Oswego Political Science, has just published, as co-editor with Dr. Brandon T. Metroka, the compelling and timely collection, Free Speech Theory: Understanding the Controversies (Peter Lang 2020) (Amazon).  The editor-authors gave me an advance look at this one, and my well earned endorsement humbly graces the back cover.  Here is the précis:

The rallying cry of "Free speech!" has long served as a touchstone for liberals and conservatives, alike, engaged in political polarization conflict and discourse. The democratization of media and the feverish pitch of political polarization, however, have contributed to the weaponization of free expression. From Colin Kaepernick to "fake news," boycotts of partisan television programming to removals of Confederate monuments, internet neutrality to the silencing of college professors and all points between, citizens and pundits all too frequently wield the slogan of "Free speech!" as the sword and shield of political discourse. Oftentimes, ironically they do so with little regard for the views of their opponents. As a result, society risks trading a substantive value for an empty slogan or, far worse, blind authority.To rediscover the underlying assumptions and social values served by free expression, and to move current controversies beyond rhetorical flourishes, Helen J. Knowles and Brandon T. Metroka assemble an impressive group of legal and political scholars to address one overarching question: "Why should we value free speech?" Through analyses of several recent controversies invoking concerns for free expression, the contributors to this volume make complex political theory accessible, informative, and entertaining. Beginning with internet neutrality and ending with an overview of developing free expression controversies in comparable western democracies, experts reestablish the link between free expression and the underlying values it may serve. In doing so, this volume unearths values previously unexamined in our modern—but increasingly impoverished and bitter—political discourse.

I can't heap enough praise on Dr. Knowles, whose work in law, history, and political science is uniformly superb.  I featured another book of hers just one year ago.  And in the spring of 2019 (back when I was allowed to be around other people), I had the privilege of seeing firsthand how she inspires passion in her students in the classroom and on campus.  It is evidence of her talents as a teacher that I have in the last year counseled several of her students in their desire to pursue graduate studies. 

Coincidentally!, I was wearing my SUNY Oswego shirt just last week, when I learned about this book's appearance.  Below is me with Park Ranger Jordyn Steele (no relation) in Glacier National Park.  Woe to the persons who asked me, "Where is that?," and then got an unsolicited nonfiction book recommendation.


Wednesday, July 22, 2020

Research for educational opportunity, accountability requires transparency, need not forgo student privacy

When I had the privilege of working on transparency issues in the Arkansas General Assembly in the 20-aughts, two legislators and I promoted a bill that would have required public state universities to disclose data on their use of affirmative action in admissions.

https://ssrn.com/abstract=3658516
One legislator, an African-American woman, reacted with manifest hostility, as if we sought outright to deprive persons of color of access to education.  I wish she would have engaged with us rather than fighting the bill behind closed doors.  It probably would have surprised her to learn that I was motivated specifically by an accusation leveled by an African-American advocacy group.  The group alleged, inter alia, that higher ed was using affirmative action to boost enrollment profiles, for PR and accreditation purposes, but then failing to support those enrolled students' success on state campuses.

I didn't know, and to this day don't know, whether the group's accusations held up as more than anecdotes.  As a transparency and accountability advocate and public educator myself, charged with the responsibility of faculty governance, I wanted to know the truth.  And there arose the problem: It was impossible to do the research, because the universities claimed, even in response to internal queries, that student privacy required nearly every datum about admissions to be held secret.  There was no way to know what students benefited from affirmative action, nor to match those data up with how those students fared.

The access bill ultimately failed, and, to my view, the reason for that failure only made the transparency case stronger.  We were not undone by objection based on equality of opportunity.  We were undone because our bill, which broadly defined affirmative action, would have required disclosure of legacy admissions: that is, when a university admits an applicant because the applicant is related to an alumna or alumnus, especially one who's a donor.  That kind of admissions preference is known to contribute to systemic discrimination against persons of color, not to mention aggravation of our alarming rise in America of socioeconomic disparity.

State Capitol, Little Rock, Arkansas
The hostility of the aforementioned African-American legislator was a warm smile compared with the outrage that poured forth from a white, male legislator, who happened also to be affiliated with Arkansas State University (ASU).  In a legislative hearing, he challenged my assertion that the universities would not happily cooperate with my research.  They would, he alleged, no legislation needed.  He persuaded his committee colleagues to no-pass the bill with a promise: After the legislative session, I should contact him personally for help procuring the data, and he would see to it that the disclosures happened.

The bill died.  After the session, I contacted our zealous ASU opponent, that he might make good on his promise.  He ignored my query and never responded.

My work on that bill fueled an ongoing interest in the interaction of access and privacy in education, especially the interaction of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and state freedom of information acts (FOIAs) (e.g., in 2018).  In that vein, my Arkansas colleague Professor Robert Steinbuch and I have just published, Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26:1 Texas Hispanic Journal of Law & Policy 57 (2020).  Here is the abstract:
The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic to which we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education.
Our research grew out of an amicus representation in 2018, alongside Professor Eugene Volokh at UCLA Law.

I'm not here naming the ASU-affiliated legislator only because, these many years later, I don't remember his name.  I have no hesitation in calling him out if someone can remind me.

Pertinently, the data in question are still held secret, in Arkansas and many states.  So my colleagues in FOIA research, including Professor Steinbuch, still would welcome that legislator's help.  It's shameful that this fight for transparency and accountability is still under way all these years later.  It's one thing to adopt a policy position and have reasoned disagreement over it.  It's another thing entirely, and anathema to democracy, to insist on a policy position while willfully concealing evidence of its efficacy.

Thursday, July 16, 2020

Sullivan publishes on ethics, criminal appeals, and seeking Supreme Court certiorari

My friend and colleague Professor J. Thomas Sullivan has published, Ethical and Aggressive Appellate Advocacy: The Decision to Petition for Certiorari in Criminal Cases, 51:3 St. Mary's L.J. 585 (2019).  The article is especially salient in light of the U.S. Supreme Court's recent decision requiring unanimous juries to convict in criminal trials for serious offenses.  Here is the abstract.
Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant’s chances for obtaining relief and is what might be characterized as the “final tool” in the appellate lawyer’s “toolbox.” There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client’s options for relief in the direct appeal and post-conviction processes.
As Sullivan explains in footnote:
This is the third in a series of articles addressing appellate practice from a different perspective than that usually taken by appellate courts with respect to counsel’s duty in representing the client. It differs from Chief Justice Warren Burger’s approach to attorneys serving as an officer of the court, as he expressed while writing for the majority in Jones v. Barnes, 463 U.S. 745 (1983). For the author’s prior articles addressing a more aggressive approach to appellate advocacy than that taken by the Jones majority, see J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: Confronting Adverse Precedent, 59 U. Miami L. Rev. 341 (2005), and J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: The “Ethical” Issue of Issue Selection, 80 Denv. U. L. Rev. 155 (2002).
See also the multi-talented Professor Sullivan recently playing Taps.