Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.

Thursday, March 24, 2022

Let's laugh at them, not with them: Klobuchar cites serious stats, but occasions levity in Jackson hearing

On day 2 of the Judge Ketanji Brown Jackson hearings, Senator Amy Klobuchar (D-Minn.) borrowed a joke from The Daily Show's Trevor Noah.

Klobuchar remarked on the significance of a woman taking a seat on the U.S. Supreme Court to attain a 5-4 gender balance for the first time.  Of 115 confirmed justices in American history, Klobuchar counted, 110 have been men.  Klobuchar said that she had "reminded" Trevor Noah on The Daily Show of similar statistics relative to service in the U.S. Senate: "Of the nearly 2,000 people who have served, only 58 have been women.  And he responded that if a night club had numbers that bad, they'd shut it down."  Here's the 38-second clip:


It was Noah who actually quoted the Senate statistic from a book, Nevertheless, We Persisted (2018), an anthology for which Klobuchar wrote a foreword and which she touted at the time. Noah followed up, "I've been to gay clubs that have better ratios of men to women."  Klobuchar took the occasion in 2018 to speak against the Brett Kavanaugh nomination, pending at the time.  She put the appearance on Facebook.


Klobuchar appeared on The Daily Show also in 2017 and in 2019, the latter while running for President.  But none of those appearances marks the funniest intersection of Klobuchar and Noah in popular culture.  That honor goes to a 2019 tweet by Noah in which he lampooned Klobuchar for overusing a joke on the campaign trail.

Senators' interrogations of Jackson on Tuesday and Wednesday this week were at times cringeworthy, to use my wife's word.  In particular, the questioning by Senators Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.) were difficult to endure; even National Review Senior Fellow Andrew C. McCarthy, who opposes Jackson's appointment on other grounds, described Hawley's attack as "meritless."  The affair rubs in for me David Brooks's recent lament in The Atlantic on the divide between today's rabid right and the meritorious social value of genuine conservatism.

Both Stephen Colbert and Trevor Noah are off this week, so between the stresses of a contentious Senate hearing and the ongoing war in Ukraine, I am sorely missing my daily doses of escapist levity. Fortunately, The Daily Show's Desi Lydic deposited a dose of satire on the web for us; don't miss it.


Wednesday, March 23, 2022

Shannon McMahon for Bristol County, Mass., DA

[UPDATE, Sept. 7, 2022.] With 90% reporting, the N.Y. Times lists Quinn prevailing with 65% of the vote to McMahon's 35%. This result is not surprising with a well known, insider incumbent. McMahon's strong showing as an out-of-the-box challenger will, I hope, keep the DA's office mindful of its accountability to the public. And I hope we'll see McMahon again in politics and public service soon.

Shannon McMahon is running for Bristol County, Mass., DA (press release) and has my wholehearted support (in my personal capacity*).

Attorney McMahon, a former assistant DA, is a colleague, friend, and former student, an alumna of UMass Law School, where I work.  She was editor-in-chief of the newly constituted UMass Law Review in the early days of the Commonwealth's public law school project, in 2011, when I joined the faculty and served as law review co-adviser.  At the same time, she worked as a bartender and raised two children.  Oh, and she finished law school at the top of her class.

I deeply valued McMahon even then more as colleague than advisee; she was, and no doubt remains, bold in tackling problems head on.  Her penchant for plain-speaking was a breath of fresh air in the stultifying environment of public higher ed, especially in staid Massachusetts.

McMahon has been accused of irreverence; what I see in her is a refusal to defer to the status quo, a flat denial that things must be what they are because that's how they always have been.  No surprise, then, that McMahon has made headlines (e.g., The Public's Radio) for stepping out as the first challenger in 16 years to give voters a choice before the dynastic incumbent DA can walk away with a third four-year term.

"Given the dynamics of the community right now, between the drug crisis and the mental health crisis and issues with the police and the community, people are angry and upset that nothing is being done to help with the people's problems, and I think right now, and it's imperative, that people have a choice," McMahon told the Herald News.

Massachusetts can be unkind to people who are willing to topple the apple cart to effect needed reform.  The state's veneer of progressivism is a thin veil for a social and political culture that demands conformity and doubles down on socioeconomic hierarchy.

For that very reason, McMahon is perfect for the job, and I hope she's only getting started.

You too can donate at McMahon for DA.  Save the date for a March 28 event.

*As always, this blog is a product of my personal creation, even if it sometimes serves also to fulfill my responsibilities as an academic in teaching, service, and research, and as an attorney in the Bar of the District of Columbia.  The Savory Tort is neither affiliated with nor within the editorial control of my employer, the University of Massachusetts Dartmouth.  I produced this posting, "Shannon McMahon for Bristol County, Mass., DA," on personal time and with no public resources.

Rob Steinbuch, law prof, for Arkansas House

UPDATE, June 26: I'm sorry to report that Professor Steinbuch did not prevail in the primary. But wow did he come close with 46.5% of the vote, 1,758 votes to Jon Wickliffe's 2,206. That leaves Wickliffe with some discontented voters to win over, and I'm sure Steinbuch will hold his feet to the fire.

Rob Steinbuch, a law professor and advocate for civil rights and transparency, is running for office, and he has my full-throated support (in my personal capacity*).

A friend, colleague, and co-author, Professor Steinbuch is running to represent Arkansas House District 73, which extends west from the state capital of Little Rock.

Professor Steinbuch has a campaign website that lists his top priorities: "Safety and Security," "Small Government," and "Life, Liberty, & Freedom."  The website is loaded with videos in which Steinbuch talks about a range of issues; three videos tackle transparency and accountability directly.  And there is a blog, in which he has held incumbent officials' feet to the fire.

When I left Arkansas for employment in Massachusetts in 2011, Steinbuch took over, rekindled, and then substantially grew my investment in transparency in the state.  He joined Professor John Watkins and me as co-author of the treatise, The Arkansas Freedom of Information Act, for its sixth edition in 2017.  And with Professor Watkins now retired and my having moved on, Steinbuch has continued the project and secured a publisher going forward.

More importantly, Steinbuch became a fixture at the Arkansas Capitol in the 2010s, testifying relentlessly in the cause of transparency and unofficially advising legislators.  He transformed transparency advocacy from the defensive and reactionary posture, which local media long had maintained, into affirmative advocacy for reform on key issues, such as attorney fee awards for successful record requesters.

Steinbuch's commitment to transparency is among the qualities that make him a superior candidate for public office.  You don't have to agree with Steinbuch on everything—he and I agree on many things, and we disagree, too—but you will never lack for knowing where he stands.  Any day, I would choose consistency and honest integrity for my representation, even in someone with whom I sometimes disagree, over the run-of-the-mill politician who bends to the special interest or politically correct fashion of the day.  Say what you will about Steinbuch, he will never be bought, and he never pulls his punches.

You too can support Steinbuch to prevail over the well moneyed special interests by donating at Steinbuch for Arkansas.

*As always, this blog is a product of my personal creation, even if it sometimes serves also to fulfill my responsibilities as an academic in teaching, service, and research, and as an attorney in the Bar of the District of Columbia.  The Savory Tort is neither affiliated with nor within the editorial control of my employer, the University of Massachusetts Dartmouth.  I produced this posting, "Rob Steinbuch, law prof, for Arkansas House," on personal time and with no public resources.

Tuesday, March 22, 2022

Whitehouse laments mandatory arbitration, civil jury woes; SCOTUS-nominated Jackson does not engage

Senator Sheldon Whitehouse (D-R.I., one of my state senators) just questioned U.S. Supreme Court nominee Judge Ketanji Brown Jackson on the importance of the civil jury.

(I wrote recently about Judge Jackson's trial court record, here and here.)

Tort law does not usually figure much into U.S. Supreme Court confirmation hearings, so when it does, it's worth paying attention. While tort law can be implicated directly in the work of the U.S. Supreme Court, for example, in the application of federal common law in admiralty, tort law is more likely to make an appearance ancillarily to constitutional law, the area of senators' greatest interest in the confirmation process.  

Those appearances of tort law usually are indicative of the interests of the day.  When gun control and the Second Amendment were hot topics in the 20-aughts, tort law made cameos in questioning about the defenses of self and property.  Senators have been interested periodically in the scope of civil rights law to combat gender discrimination.  Dialog on that point has imported principles of causation, because civil rights law, especially in private remedies, borrows both procedural and substantive machinery, including limiting principles, from common law tort.

At about quarter to one in the extended morning of today's confirmation hearings, Senator Whitehouse sought Judge Jackson's endorsement, which she gave, of statements on the importance of the civil jury.  The Seventh Amendment to the U.S. Constitution guarantees a right, if qualifiedly, to a civil jury, and the mechanism was famously admired by Alexis de Tocqueville in Democracy in America (1835).  Yet the institution has been a waning feature of American civil justice, largely as an incidental function of the dramatic decline in civil trials during the 20th century, but also as a deliberate effect of corporate America's embrace of mandatory arbitration.

Mandatory arbitration, removing cases from the courts upon the purported consent of consumers and victims of tortious wrongdoing and breach of contract, has been a preoccupation of consumer protection advocates and anti-tort reformers (or plaintiff-side "tort reformers"), such as Ralph Nader.  (The issue was among those addressed by the documentary Hot Coffee in 2011, particularly in the painful context of purported consent to dispute resolution in event of criminal sexual assault.  Unfortunately, because the point hardly diminishes the problem on the merits, the story highlighted in the film was later challenged as a possible fabrication.)  Among the many shortcomings of arbitration as a mechanism in the service of justice that rub me the wrong way, besides its overwhelming favoritism for corporate respondents, is the lack of transparency, which allows wrongdoers to persist in misconduct in defiance of public accountability.

Senator Whitehouse has been focused lately on what he perceives to be politicization of the judiciary through the use of "dark money," that is, money of unknown or vague origin, to influence the appointment (and in some states, election) of judges, typically to further the interests of big business.  Whitehouse wrote about the problem in the Yale Law Forum in 2021, and I recently wrote about Whitehouse writing about the problem.  He talked about that issue both in his opening remarks on the Judiciary Committee yesterday and at the start of his questioning today.  This focus is a natural extension, and broadening, of his concern over civil juries, about which he wrote also, in a law review article for William & Mary in 2014.

I created a C-SPAN clip from today's hearing.  C-SPAN has a transcript below it, but be warned, the automated system made some egregious errors, e.g., reading "civil juries" as "simple majorities."


Frankly, I didn't care for Judge Jackson's response.  Her initial reflection about citizens sitting in judgment over one another seemed to speak to the criminal trial.  She failed to acknowledge the separate, separately important and separately threatened, civil dimension on which Whitehouse was focused.  When he pressed her again on the question, in relation to the risk of jury tampering, her response, again, was painfully generic and indicated no recognition of the particular problem of the vitality of the civil jury.  On a third go, Whitehouse explicitly cited mandatory arbitration, the Seventh Amendment, the employment context, and corporate power.  Judge Jackson had no opportunity to respond.

I simply can't tell whether Judge Jackson was unclear on what it is Whitehouse is worried about, or she was simply trying, presumably upon handlers' instructions, to remain utterly bland and uncontroversial in any declaration.  Whitehouse thanked Jackson for answering his questions with clarity and expressly recognizing the importance of the civil jury.  But she had not. 

After the exchange, Senator Dick Durbin (D-Ill.) noted pending legislation that would override purported consent to mandatory arbitration in sexual assault matters.  The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was signed by the President on March 3: a welcome change, a long time coming (since Hot Coffee; #MeToo revived the appetite), though redressing only a sliver of the mandatory arbitration problem.  Durbin was talking about, I assume, the Forced Arbitration Injustice Repeal (FAIR) Act, which, as H.R. 963, narrowly passed in the House, 222-209, just last week.  Its companion S.505 has been long pending in the Judiciary Committee.  The FAIR Act would apply to employment and consumer disputes.

Incidentally, just before the jury discussion, Senator Whitehouse asked Judge Jackson whether it is ever appropriate for an appellate court to do fact-finding outside the record.  She said that she knew of no such occasion.  Neither of them referred to, nor, doubtless, even thought about, the latitude afforded appellate courts to research the law of foreign jurisdictions, which is treated for most purposes as a question of fact.  I note the issue only because American appellate courts' unwillingness to investigate foreign law in cases in which it is implicated often impedes the attainment of justice in the jurisdictionally transnational cases increasingly generated by globalization, not only in corporate matters such as business contract disputes, but in family law and civil rights.

The Sullivan question has come up today, too, this afternoon by Senator Klobuchar (D-Minn.).  She seemed to suggest that journalists' lives will be put at risk without the "actual malice" standard.  Never mind the reputations and careers that have been ruined in the name of protecting press negligence and blissful ignorance.  I don't have the stomach today to tackle such uninformed melodrama.  As one might expect, Judge Jackson stuck close to tried-and-true principles of stare decisis.

Thursday, March 3, 2022

Ways to give: Ukraine National Bank sets up links for donations to armed forces, humanitarian relief

National Bank of Ukraine (NBU photo CC BY-NC-ND 2.0)
Many folks have been asking how or where to make donations in support of Ukraine, and I have had the same questions.

I posted earlier a link to a list published by ABC News.  A friend in the D.C. area (HT @ Leah) shared the following three items, which represent the most comprehensive array of possibilities I have seen.  The first two items come from a listserv of the Bethesda-Chevy Chase High School community in Maryland, near D.C.; the latter comes from an American NGO. 

In addition, a family member (HT @ Jack) sent a link to the Knights of Columbus Ukraine Solidarity Fund, which promises that 100% of gifts will supply displaced people, and that the Knights will match the first half million dollars contributed.

I preface the following items by saying that none of these lists is exhaustive, and there are organizations working on the ground that also could use support, but to which it is difficult to donate because the only way to do so is a costly wire transfer.  There are persons organizing group gifts to mitigate the cost of wire transfer, so such possibilities exist.  But, of course, be wary of scams; choose a non-traditional giving channel only with high confidence that it's legit and ideally a personal connection to verify the legitimacy.

This first item seems to me the most direct way to give, short of an organized wire transfer.  I'm leaving in the full-text links so that you can see their ".gov.ua" bona fides.

The National Bank of Ukraine has set up two accounts to which people can donate.  One is to support the Armed Forces of Ukraine, one is for Humanitarian Assistance to Ukrainians affected by Russia's aggression.
 
Both are very simple to donate to.  The links are:

[Armed Forces] https://bank.gov.ua/en/news/all/natsionalniy-bank-vidkriv-spetsrahunok-dlya-zboru-koshtiv-na-potrebi-armiyi
 
[Humanitarian Assistance] https://bank.gov.ua/en/news/all/natsionalniy-bank-vidkriv-rahunok-dlya-gumanitarnoyi-dopomogi-ukrayintsyam-postrajdalim-vid-rosiyskoy

Here is the second item, a list of organizations.  There is a lot of overlap here with the ABC News list, which Razom topped.  And the Kyiv Independent I wrote about here on Feb. 25.

  • The International Medical Corps, is on the front lines helping with emergency health care services.  You can donate at Ukraine | International Medical Corps.
  • You can donate to the International Rescue Committee to support families affected by the Ukraine crisis.
  • Chef José Andrés feeds Ukrainian refugees at the border | WTOP News. José Andrés, D.C. chef famous for feeding people in need around the world, is already in Poland with his World Central Kitchen team helping provide “thousands of meals in Poland, Romania and even inside Ukraine,” he wrote on Twitter. Anyone who wishes to donate to the efforts can go here.
  • The Ukrainian Red Cross is helping with humanitarian aid, including aiding refugees and training doctors.  You can donate at UKRAINE CRISIS | International Committee of the Red Cross (icrc.org).
  • Journalists with the Kyiv Independent and Kyiv Post have done extraordinary work covering the war, offering the world constant updates as they fear for themselves, their families and their homes. The Independent has started a GoFundMe asking for support, and the Kyiv Post offers subscriptions for $45 a year.
  • Voices of Children, a charitable foundation based in Ukraine, has been serving the psychological needs of children affected by the war in the country’s east since 2015, according to its website. The group’s psychologists specialize in art therapy and provide general psychosocial support with group classes or individual sessions. Many of its psychologists are based in the regions of Luhansk and Donetsk, areas that have long been controlled by Russian-backed separatists and that are on the front lines of the current, wider conflict. Now, Voices of Children is providing assistance to children and families all over Ukraine, even helping with evacuations. You can donate here.
  • Razom for Ukraine was founded in 2014 and has since launched efforts to build a stronger democracy in the country. Now, according to its website, the nonprofit is “focused on purchasing medical supplies for critical situations like blood loss and other tactical medicine items. We have a large procurement team of volunteers that tracks down and purchases supplies and a logistics team that then gets them to Ukraine.” Razom—which means “together” in Ukrainian—posted a list of the lifesaving supplies it has already purchased and is asking for more support here.

Most large international aid organizations, including UNICEF, the UN Refugee Agency (UNHCR), the International Committee of the Red Cross, Doctors Without Borders, Save the Children and the International Rescue Committee, are currently working in Ukraine and neighboring countries, where a growing number of displaced people are fleeing.

Additional organizations helping in Ukraine and highly regarded (getting Charity Navigator’s top rating (4 stars)) are: Direct Relief, GlobalGiving, and the Center for Disaster Philanthropy.

The third item is labeled as coming from Foreign Policy for America.  Again, there is overlap.

GlobalGiving Ukraine Crisis Relief Fund. Your donation to this fund will support affected communities in Ukraine, with a focus on the most vulnerable, including children, who need access to food, medical services, and psychosocial support. Donate here.

CARE Ukraine Crisis Fund. Your emergency gift supports CARE’s Ukraine Crisis Fund to reach 4 million with immediate aid and recovery, food, water, hygiene kits, psychosocial support, and cash assistance — prioritizing women and girls, families, and the elderly. Donate here.

United Help Ukraine. This US-based organization focuses on raising awareness around the ongoing conflict in Ukraine and is raising funds to provide humanitarian assistance to Ukrainians. Donate here.

Support Hospitals in Ukraine. Your donation will support Ukrainian hospitals with much needed modern medical equipment and supplies shipped from the United States. Hospitals in Ukraine are under immense strain that will likely continue for a long time regardless of when the conflict ends. Doctors have been doing a heroic job but are in dire need of more trauma-related equipment and surgical tools. Donate here.

Nova Ukraine. The Ukraine-based organization is dedicated to raising awareness about Ukraine in the US and throughout the world and providing humanitarian aid to vulnerable groups and individuals in Ukraine, ranging from medical equipment for wounded soldiers to dresses and suits for graduation days in orphanages in Ukraine. Donate here.

Ukrainian Congress Committee of America. This non-partisan US-based organization supporting the Ukrainian community is accepting donations for humanitarian aid. Their website includes additional resources for how we can support Ukrainians beyond financial assistance. Donate and learn more here.

ChildFund. ChildFund’s German sister organization, ChildFund Deutschland, has worked in Ukraine for many years and is acting quickly to provide emergency aid to kids and their families. Your support will help deliver relief and keep children safe as the crisis unfolds. Donate here.

Project HOPE. As conflict intensifies inside Ukraine, Project HOPE is on the ground responding to this crisis and is actively shipping medicines and medical supplies to assist Ukrainians. Donate here.

World Food Program USA. WFP launched an emergency operation to provide food assistance for people fleeing the conflict and is on standby to assist refugees, as requested. Their teams are also on the ground in Kyiv and in a number of the neighboring countries, leading the emergency telecommunications and logistics clusters on behalf of the United Nations. Donate here.

Support Ukrainian Journalism. Numerous Ukrainian journalists continue to provide on-the-ground reporting from Ukraine despite the risks. The Kyiv Independent can be supported here. An additional fund has been set up by a consortium of media organizations to support other Ukrainian journalists currently covering this crisis. You can support the consortium here.

I know there are several other ways to support Ukraine, but I cannot list all of them here. If you have questions about another fund or organization, please don’t hesitate to reach out to our team. For anyone who is considering volunteering in Ukraine, please consider this advice from USAID and review the resources they provide.

Prayers for Ukraine.

Tuesday, March 1, 2022

Crisis worsens in Lviv; FIFA at last suspends Russia

Stand with Ukraine rally at the Lincoln Memorial, Washington, D.C. (image by Victoria Pickering CC BY-NC-ND 2.0)
ABC News has published a list of aid organizations supporting Ukraine, including the U.N. High Commissioner for Refugees itself.  The number of persons fleeing the war has now exceeded a half million.  Matt Gutman's latest report from Lviv, not yet freely available, is heartbreaking, including a train interview with a little boy and images of a sobbing girl, both contemplating fathers left behind.  A TikTok video gives a flavor.

@abcnews Matt Gutman reports from the train station in #Lviv, #Ukraine, where hundreds of people are waiting to board to leave the country. #news #russia ♬ original sound - ABC News

Recent days have seen moving recognition of the war in professional football (soccer).  My own Manchester City's Oleksandr Zinchenko, who hails from Ukraine, met Everton countryman Vitaliy Mykolenko on the pitch for an embrace before the Saturday match-up, as the stadium overflowed with azure and gold.

Born in Radomyshl in Ukraine, about 70 miles west of Kyiv, Zinchenko perfected his skills with the youth squad of FC Shakhtar Donetsk, where he became captain.  Then, with his family at age 17, he was forced to flee the conflict in the Donbas region, according to the BBC.

The support at the Etihad on Saturday brought Zinchenko to tears. Subsequently, he had harsh words for Vladimir Putin and joined a statement demanding Russia's expulsion from international football. After some earlier ambiguous statements, FIFA, the world governing body of football, yesterday at last settled on suspending Russia from all competitions, including ongoing qualifiers for the World Cup in Qatar late this year.

Manchester City chief Pep Guardiola said Saturday that Zinchenko wanted to play, despite the circumstances. He is set to start today in Man C's FA Cup match against Peterborough, 1915 GMT, on ESPN+ in the United States.