Indian court refuses injunction of fantasy cricket league in unlicensed use of player names, likenesses

Free SVG

In case about fantasy sports, the Delhi High Court in India ruled in late April that satire, news, and art must enjoy protection from right-of-publicity liability.

The case involves athlete likenesses in fantasy sport leagues. Plaintiffs are a Singapore-incorporated fantasy sport provider that invested big money to develop non-fungible token and other electronic products making licensed use of the names and likenesses of co-plaintiff cricket athletes. The defendant business operated a less fancy but "explosive[ly]" popular online fantasy league service using the players' name and likenesses without licenses.

The court determined that Indian law does recognize right of publicity, inspired in part by the example of statutory tort actions in the United States. Accordingly, "passing off" is essential to infringement, the court held, meaning that customers must reasonably understand the defendant's proffered product as bearing the subject's endorsement. 

The court denied preliminary injunction. In the instant case, evidence was lacking that the defendant made such a representation or that reasonable users made such a mistake. To the contrary, the defendant online disclaimed any affiliation with or license from the depicted players.

The court also recognized a constitutional dimension to the position of the defense in the case, opining that "use of celebrity names, images for the purposes of lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses would be permissible as facets of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India and would not fall foul to the tort of infringement of the right of publicity."

The case is Digital Collectibles Pte. v. Galactus Funware Technology Pte., 2023:DHC:2796, CS(COMM) 108/2023, 2023 LiveLaw (Del) 345 (Delhi High Ct. Apr. 26, 2023) (India), decided by Judge Amit Bansal, who holds an LL.M. from Northwestern University.

HT @ Lakshmikumaran & Sridharan.

Nike, Puma stop making shoes with kangaroo leather

Nike and Puma both announced this year that they will stop using kangaroo leather to make shoes.

I didn't know that kangaroo leather was used to make shoes. Or anything. I didn't know "kangaroo leather" was a thing. So this news was simultaneously stomach-turning and a relief to me.

Kangaroo leather is a thing, apparently prized for its strength and durability. According to People for the Ethical Treatment of Animals (PETA), somewhere between 1.5 and 5 million kangaroos are killed annually for "k-leather" clothing and accessories. (NPR reported 1.3m in Australia in 2021, per a government count there.) PETA described violent killing of adults and joeys by hunters; I'll refrain from sharing the horrifying details. 

PETA named Nike, Puma, Adidas, Diadora, Versace, and Prada as companies that used kangaroo leather, though all except Adidas have now announced that they'll stop. Footy Headlines reported in March that Adidas will offer 2024 kangaroo football (soccer) boots.

Nike was under pressure from more than NGOs. Nike World Headquarters is in Beavorton, Oregon, and a bill introduced in the Oregon legislature would have banned kangaroo leather products, NPR (and Oregon Public Broadcasting) reported in January. California has since the 1970s. The Oregon bill died in March, but not without having left a mark in public consciousness.

A California representative proposed a federal ban on kangaroo leather in the U.S. House of Representatives in 2021. ESPN gave some press to the Kangaroo Protection Act during the FIFA World Cup in Qatar in December, but the bill never made it out of committee.

Photos: Kangaroos at the Australia Zoo in 2005, RJ Peltz-Steele CC BY-NC-SA 4.0.

DA cannot shield officer, EMT identities from state FOIA disclosure, court rules in fatal police shooting

A Massachusetts Superior Court in March ordered the district attorney to release investigative records to the family of a man killed by police.

The privacy of public officials in the technology era has strained conventional accountability rationales for transparency. Since the advent of access to public information as a democratic norm, public officials and public figures have decried purported invasions of their privacy. The very notion of privacy in modern tort law, for better and worse, traces its roots to precisely such whinging in the late nineteenth century. Access usually prevailed.

Yet in the technological era, privacy complaints have gained new currency, and some of it is legitimate. Even, or perhaps especially, in the intensely emotional context of high-profile police shootings, interests are amped up on both sides. Of course, victims and families demand understanding and accountability, and they are entitled to it. At the same time, it's harder than ever to be a police officer, and passions that expose public servants and their families to harassment and threats pose a genuine policy problem. 

The two sides collided in Massachusetts over the death of Anthony (Antone) Harden in Fall River in 2021. The 30-year-old was shot twice and killed by police in his bedroom. Police investigators concluded that Harden had used a steak knife to attempt to stab the shooter's partner in the neck and head. A district attorney (DA) investigation in 2022 ruled the homicide justified.

Surveillance video shows officer arriving at Harden's apartment.

With the final report, Bristol County DA Thomas M. Quinn III released hundreds of pages of records, including video, audio, and photographs. But there was much that the DA did not release in response to a freedom-of-information request by Harden's brother, Eric Mack, an attorney. Though the family knew, and the lawsuit revealed publicly, the names of the involved officers by the time of the DA's report, the DA would not disclose their names.

The DA also withheld other records identifying responding personnel, including video interviews with emergency medical technicians. WBUR reported that the EMTs said they did not see the steak knife that police said necessitated lethal force.

Mack sued the DA under the state public records law, and the Superior Court in March granted his request for records on all counts. With regard to the identities of police and EMTs involved, the court wrote:

Upon balancing the rights of the parties, the public's need to access against the privacy rights at issues here, I find that the equities favor disclosure. The public officials here are not acting in the capacity of private citizens but in the course of their duties. Plaintiff has a right to have a full understanding of the facts leading to his brother's death including the identities of the public officials involved to ensure accountability and transparency. The failure to disclose this information would raise questions amongst the public about why this information was being withheld, which would only serve to undermine the integrity of the law enforcement departments involved and those reviewing their conduct. Any right to privacy that a public official might have under these circumstances, which is de minimis under the circumstances presented here, is overwhelmed by the public's right to know.

Before the resolution of the public records case, in January, the Harden family threatened Fall River with a $50m lawsuit for Harden's death, if the records were not released.

The case is Mack v. Office of the District Attorney, No. 2284-CV-00248 (Mass. Super. Ct. Suffolk County Mar. 6, 2023), decided by Justice James Budreau.

Scholars examine efficacy of apology in book born of truth and reconciliation in South Africa

Colleagues of mine in African studies, Professors Melanie Judge and Dee Smythe published Unsettling Apologies: Critical Writings on Apology from South Africa.

Known for the truth and reconciliation processes that followed Apartheid, South Africa has been a font of experience and acquired wisdom about the role of transparency and truth in redressing mass atrocity. In this book, released in the fall from Bristol University Press, the South African editors compiled and co-authored some of the best and latest thinking and reflection on the function and debated efficacy of apology.

This is the précis.

There has recently been a global resurgence of demands for the acknowledgement of historical and contemporary wrongs, as well as for apologies and reparation for harms suffered. Drawing on the histories of injustice, dispossession and violence in South Africa, this book examines the cultural, political and legal role, and value of, an apology. It explores the multiple ways in which "sorry" is instituted, articulated and performed, and critically analyses its various forms and functions in both historical and contemporary moments. Bringing together an interdisciplinary team of contributors, the book's analysis offers insights that will be invaluable to global debates on the struggle for justice.

Even setting aside mass atrocities such as Apartheid, the theory of apology has resonance in tort law. "Apology laws" in the states seek to render apologies inadmissible as evidence in later litigation, especially in medical malpractice. Proponents posit that apology aids in healing and even averts litigation. That premise, and the efficacy of apology laws, is much studied and debated.

A masked Prof. Smythe previews the book at the annual meeting
of Law and Society in Lisbon, Portugal, in July 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

Judge and Smythe wrote the book's opening chapter, "The Power of Apology." The chapters thereafter offer a range of compelling titles. Smythe also co-authored, with educator Leila Khan, "Beyond Words: Apologies and Compensation in Sexual Offences." Smythe, a professor of public law on the faculty of law at the University of Cape Town, is a dear colleague who has been ceaselessly supportive of my research and teaching on African law and public policy.

Professor Sindiso Mnisi Weeks, a valued colleague at UMass Boston who generously has participated in my comparative law class in the past, contributed the chapter, "In Pursuit of Harmony: What is the Value of a Court-Ordered Apology?" University of Wisconsin constitutional comparatist Professor Heinz Klug authored, "Amnesty, Amnesia, and Remembrance: Self-Reflections on a 23-Year-Old Justification." Among all of the chapters, I especially appreciated the heart-rending history "On Not Apologising: Winnie Madikizela-Mandela and the TRC Hearing into the Mandela United Football Club" by Canadian Professor Shireen Hassim.

Abstracts of all chapters and the book's front matter are available at Bristol University Press Digital.

EPA floats PFAS limits for drinking water

Rawpixel CC0 1.0

PFAS has been much on the lips of regulators, lately and at last. 

As I wrote in 2021, the movie Dark Waters (2019), based on a true story, first brought PFAS to my attention. I'm happy to report that we've since replaced almost all of our PFAS-coated cookware. And just yesterday, I followed the recent custom of removing a burrito from its plastic-coated-paper wrapper before heating it in the microwave.

When John Oliver gave his classic treatment to PFAS in 2021, Europe was moving to regulate it, but the United States was doing very little. Per John Oliver's invitation, I confirmed that my local water authority in Rhode Island was not testing for PFAS in drinking water.

Now, with Biden Administration support announced in March, the U.S. Environmental Protection Authority has a PFAS website and proposed regulations for drinking water. The proposal would drop acceptable levels of six PFAS chemicals from 70 to 4 parts per million (ppt).

That's a start, but not a solution. 

PFAS might now be in the drinking water of as many as 200 million Americans, The Guardian reported in March. Research shows human health risk upon any exposure to PFAS, so no safe level is known. The EPA's own guidelines since last year have called for voluntary limits on two PFAS chemicals at 0.02 and 0.004 ppt, a Harvard expert explained. Meanwhile, it's not clear that scientific testing is accurate enough to detect PFAS levels that low. Thus, the EPA proposal is vulnerable to criticism for not reaching the full range of PFAS chemicals and not setting maximum levels low enough. But the challenge truly to ensure human health might be practically insurmountable.

Spurred by burgeoning state regulation meanwhile, the private sector is ramping up capacity to test for PFAS nationwide. In February, Maine Laboratories became the first commercial lab in that state to offer testing. Maine Labs sells test kits for drinking water, waste water, ground water, and soil, with a two-week turnaround for results. Maine Labs's CEO is Katie Richards, a close friend and former college roommate of one of my sisters.

NYPD seizes adorable dog, person too, in retaliation for video-recording in public, attorney-plaintiff alleges

A New York legal aid attorney was arrested, along with her dog, when she started video-recording police, and then she sued for civil rights violation.

Harvey (Compl. ¶ 36)

The NYPD messed with the wrong person. As the complaint tells it, Molly Griffard, an attorney with the Cop Accountability Project of the Legal Aid Society (Equal Justice Works), was walking her dog, Harvey, in the Bedford-Stuyvesant neighborhood of Brooklyn when "she saw police officers remove a young man from a bodega, and drag him around the corner where they lined him up with other young men against a wall."

Griffard began video-recording with her phone. After she crossed the street at an officer's instruction, she started writing down NYPD car plate numbers. An officer refused to give her his business card upon her request, the complaint alleges. Instead, the officer handcuffed Griffard and arrested her, taking her and Harvey into police custody. She was held at the 79th precinct for eight hours, while Harvey, a nine-year-old Yorkie, was held in the kennel.

Admittedly, what caught my attention in the case was not so much the facts, head-shaking inducing as they are, but the story of Harvey. Journalist Frank G. Runyeon, reporting for Law360, and NBC News 4 New York, also were enchanted.

Griffard and her attorney, David B. Rankin, of Beldock Levine & Hoffman LLP, must have been conscious of Harvey's intoxicating adorableness, too, because they included gratuitous glamor shots in the complaint—as I've reproduced here. 

Harvey (Compl. ¶ 20)

At its fringe, the case might be said to implicate animal rights, or at least the rights of owners of domesticated animals. Courts in the United States and elsewhere in the world are coming around to the idea that domesticated animals such as cats and dogs have a value exceeding their market worth as personal property, especially in the area of tort damages when the animals come to harm.

Griffard make no such claim, though, rather using Harvey as evidence to demonstrate her emotional distress at being separated from him and being given no information about his whereabouts while they were held—and, between the lines, to tug at the heartstrings and demonstrate the utter absurdity of her arrest and detainment.

One paragraph of the complaint does allege that seven-pound "Harvey was traumatized by the incident and now takes medication to treat his anxiety disorder." And the count of unreasonable seizure points out that "Harvey missed his dinner."

The case is Griffard v. City of New York, No. 512993/2023 (Sup. Ct. Kings County filed May 2, 2023).

Mass. court affirms big verdict against Big Tobacco

Autodesigner via Wikimedia Commons CC0 1.0

Last week, the Massachusetts Supreme Judicial Court affirmed a lung cancer victim's verdict against Marlboro maker Philip Morris (PM).

Arising from verdict in a $37m case against PM and co-defendants, including R.J. Reynolds Tobacco Co. and Star Markets, the decision broke no new ground, but might be instructive for students of product liability.

On appeal, PM did not "dispute that the plaintiffs introduced sufficient evidence of agreement between it and the other cigarette entities to deceive the public about the dangers of smoking.... Further, [PM did] not dispute the evidence of medical causation, i.e., that smoking causes the type of cancer from which Greene suffered."

Rather, PM asserted that the plaintiff failed to connect causally her choice to smoke to specific misrepresentations. The court wrote that PM viewed the evidence too narrowly, and that the plaintiff sufficiently "met this requirement by introducing evidence of her detrimental reliance on the conspiracy's misrepresentations regarding filtered cigarettes. [PM] represented that such products, including Marlboro Lights, delivered lower tar and nicotine and were a healthier alternative to regular cigarettes."

The plaintiff also met the burden of proving causation on a count of civil conspiracy. "The conspirators expressly misrepresented to the public that they would not have been in the business of selling cigarettes if cigarettes were truly dangerous," the court reasoned. Consequently, "the jury could have found that [the plaintiff] would have smoked less, or quit sooner, absent the conspiracy's campaign of fraud and deception."

PM also pointed to the court's 2021 adoption of the Third Restatement approach to causation (on this blog) to argue that the jury was erroneously instructed on "substantial causation." The court ducked the question by finding that counsel had not preserved their objection to the jury instructions.

Finally, the court upheld the award as against PM challenges to the trebling of damages under Massachusetts consumer protection law and the commonwealth's 12% judgment interest rate.

The case is Greene v. Philip Morris USA Inc., No. SJC-13330 (Mass. May 9, 2023). The unanimous opinion was authored by Justice Scott L. Kafker, who also wrote the opinion in the 2021 causation case.

Mass., EU courts wrestle with requisite harm in defamation, data protection cases

The vexing problem of proof of damages in defamation and privacy has turned up recently in the Massachusetts Court of Appeals and the Court of Justice of the European Union. Meanwhile, the Massachusetts Gaming Commission borrowed European privacy principles for new data security rules.

Tiny turkey. Stéphanie Kilgast via Flickr CC BY-NC-ND 2.0

'Stolen' Turkey Money in Massachusetts

The Appeals Court in April vacated dismissal in a business dispute over turkeys. Nonprofit and business collaborators fell out over spending on variably sized turkeys for a charitable food event. The defendant wrote on social media that the plaintiff "stole" money intended for charitable purposes.

The complaint, which was filed by a Massachusetts lawyer, was messy—narrative in excess, numbering in disarray, and allegations jumbled between liability theories—so it was difficult for the trial court to parse the pleadings. With the aid of oral argument on appeal, the court teased out the defamation count and determined that it had been dismissed for want of pleaded loss.

However, Massachusetts is among jurisdictions that continue to recognize the historical doctrines of libel per se and slander per se. Those doctrines allow some pleadings to proceed without allegation of loss, and for good reason. Reputational harm is exceedingly difficult to prove, even when it seems self-evident. After all, whom should a plaintiff call to testify to prove her damaged reputation, people who now think an awful falsity about her? Witnesses will be less than eager. Even in case of a business plaintiff that suffers economic loss, it can be exceedingly difficult to tie specific losses to specific assertions of falsity.

The historical approach allows a plaintiff to demand presumed damages. That's a messy solution, because the jury is entrusted with broad discretion to assess the damages. On the plaintiff side, perhaps that's OK; we just juries to measure intangible losses all the time, as in the case of general damages for injuries, or pain and suffering. The defense bar and allied tort reformers have rebelled against presumed damages, though, arguing that they afford juries a blank check. That unpredictability makes it difficult for defendants and insurers to assess their liability exposure. Defense-oriented tort reformers have been successful in extinguishing per se defamation actions in many U.S. states.

Massachusetts splits the difference, I think in a healthy way. Per se actions are preserved, but the plaintiff is entitled to nominal damages, plus proved actual losses, but not presumed damages. I mentioned recently that the E. Jean Carroll case has spurred overblown commentary about the potential of defamation law to redress our misinformation problem. The unavailability of per se actions in many states is one reason that defamation is not up to the job. A defamation action for nominal damages helps, though, coming about as close as U.S. jurisdictional doctrine allows to a declaration of truth—which is what defamation plaintiffs usually most want.

Allegation of a crime, such as theft or misappropriation of charitable funds, fits the class of cases that qualify for per se doctrine, whether libel or slander. There is some room debate about whether social media better fits the historical mold of libel or slander, but that's immaterial here. The allegation of "stolen" money fit the bill.

The Appeals Court thus vacated dismissal and remanded the claim for defamation and related statutory tort. The court clerk entered the Memorandum and Order for Judges Mary Thomas Sullivan, Peter Sacks, and Joseph M. Ditkoff in Depena v. Valdez, No. 22-P-659 (Mass. App. Ct. Apr. 28, 2023).

Austrian post box.
High Contrast via Wikimedia Commons CC BY 3.0 DE

Non-Consensual Political Analysis in Austria

The Court of Justice of the European Union (CJEU) also recently tussled with a problem of proof of damages. The court held early in May that a claimant under the EU General Data Protection Regulation (GDPR) must claim harm for a personal data processing violation, but need not meet any threshold of seriousness.

The court's press release summarized the facts in the case:

From 2017, Österreichische Post collected information on the political affinities of the Austrian population. Using an algorithm, it defined "target group addresses" according to socio-demographic criteria. The data thus collected enabled Österreichische Post to establish that a given citizen had a high degree of affinity with a certain Austrian political party. However, that data processed were not communicated to third parties.

The citizen in question, who had not consented to the processing of his personal data, claimed that he felt great upset, a loss of confidence and a feeling of exposure due to the fact that a particular affinity had been established between him and the party in question. It is in the context of compensation for the non-material damage which he claims to have suffered that he is seeking before the Austrian courts payment of the sum of €1,000.

The plaintiff endeavored to quantify his emotional upset, but in the absence of communication of the conclusions about the plaintiff to to any third party, the claim of harm was thin. Emotional suffering resulting from the mere processing of personal data in contravention of one's advance permissions seems minimal. Accordingly, the Austrian courts, following the example of neighboring Germany, were inclined to disallow the plaintiff's action for failure to demonstrate harm.

Harm has been a sticking point in privacy law in the United States, too. Privacy torts are a relatively modern development in common law, and they don't import the per se notion of historical defamation doctrine. Tort law balances culpability with harm to patrol the borders of social contract. Thus, intentional battery is actionable upon mere unwanted touching, while merely accidental infliction of harm requires some degree of significance of injury. Defamation law arguably defies that dynamic, especially in per se doctrine, in part for the reasons I explained above, and in part because, for much of human history, personal integrity has been as essential for survival as physical security.

Not having inherited the paradigm-defying dynamic, privacy law has posed a puzzle. Scholars disagree whether damages in privacy should follow the example of business torts, requiring at least economic loss; the example of emotional distress torts, requiring at some threshold of severity; or defamation per se torts, recognizing some sui generis harm in the disruption of personal integrity. As personal data protection has grown into its own human right independent of privacy, the problem has been amplified, because, exactly as in the Austrian case, a right against the non-consensual processing of data that are personal, but not intimately personal, is even more difficult to generalize and quantify.

The problem is not only a European one. In the United States, courts and scholars have disagreed over when claims in the burgeoning wave of state data protection laws, such as the Illinois Biometric Information Privacy Act, can satisfy the "case or controversy" constitutional requirement of jurisdiction. Failure to see a sui generis harm in privacy violations means, arguably, that there is no "case or controversy" over which courts, particularly federal courts, have competence.

The CJEU balked at Austrian courts' unwillingness to see any wrong upon a claim of only intangible loss. But the court agreed that the plaintiff must demonstrate harm. Hewing to the text of the GDPR, the court reasoned that a plaintiff must show a violation of the regulation, a resulting harm, and a causal connection between the two. Thus, harm is required, but there is no requirement that the harm meet some threshold of seriousness or economic measure.

The CJEU decision was touted in headlines as "clarifying" the law of damages under the GDPR, while the stories beneath the headlines tended to do anything but. Some writers said that the court raised the bar for GDPR claims, and others said the court lowered it. Confusion stems from the fact that the court's decision spawns subsequent many questions. Conventionally, the GDPR leaves the quantum of damages to national courts. So how must a claim of de minimis harm be measured on remand? Are nominal damages sufficient compensation, or must the data protection right be quantified?

Moreover, Sara Khalil, an attorney with Schönherr in Vienna, observed that the court left out a component of tort liability that national courts sometimes require: culpability. Is there a minimal fault standard associated with recovery for mere data processing? Because tort law ties together the elements of harm and fault, at least in some jurisdictions, the one question necessarily begets the other.

RW v. Österreichische Post AG, No. C-154/21 (May 4, 2023), was decided in the First Chamber of the CJEU.

Data Security in Gambling in Massachusetts

Policymakers and courts on both sides of the Atlantic are wrestling with the problems of contemporary personal data protection. And while the gap between the GDPR and patchwork state and federal regulation in the United States has stressed international relations and commerce, it's no wonder that we see convergence in systems trying to solve the same problems.

To wit, the Massachusetts Gaming Commission has employed recognizably European privacy principles in new data security rules. For Israeli law firm Herzog Fox & Neeman, attorneys Ariel Yosefi, Ido Manor, and Kevin David Gampel described the overlap. The commission adopted the regulations for emergency effect in December 2022; final rules were published in April.

The attorneys detailed the requirements of gambling operators:

• to establish and plainly disclose to players comprehensive data privacy policies, including measures regarding data collection, storage, processing, security, and disclosure, the latter including the specific identities of third-party recipients; 
• to guarantee player rights including access, correction, objection, withdrawal of consent, portability, and complaint;
• to eschew purely automated decision-making; and
  
• to implement physical, technical, and organization security practices.

The regulations are 205 CMR 138 and 205 CMR 248 (eff. Mar. 9, 2023, publ. Apr. 28, 2023).

Panelists on child labor describe accountability efforts

Schoolchildren play at a Goboué, Côte d'Ivoire, school
built by Nestlé and cocoa partners. Nestlé via Flickr CC BY 2.0.

Liability for child labor and child trafficking was the subject of an informative continuing legal education program from the International Law Section of the American Bar Association in January.

The program contemplated various legal vehicles for liability, including the alien tort statute (ATS) and the Trafficking Victim Protection Act (TrVPA). And don't count out ordinary, common law tort, said Terry Collingsworth, executive director of the International Rights Advocates. 

The program description set the alarming scene:

There is no childhood for boys and girls who are trafficked as sex slaves or for imperiled cobalt miners in the Democratic Republic of the Congo working without protective gear, or for children who are forced to fight as soldiers or girls conscripted into forced marriages. Nor is there a childhood for enslaved young boys as young as five who are sold to human traffickers and made to work as fishermen for up to 12 hours a day, seven days a week.

Despite a range of UN protocols and statutory accountability mechanisms, abusive child labor practices persist.

The reach of the 1789 ATS has been limited in recent years by Supreme Court rulings requiring that a matter "touch and concern" the United States. Collingsworth—whose commentary I found most informative, and a fellow Duke Law alum—criticized this interpretation of the ATS as reading non-extraterritoriality into the statute, "as if it should only apply if the kids were kidnapped from the United States."

The "read in" did contradict decades of federal court precedent, dating to the 1980s. At the same time, statutory interpretation recognizes a presumption against extraterritoriality, so the courts arguably strayed from first principles.

Even with the knowledge requirement, " sadly, there's enough of that to keep us busy for the rest of eternity," Collingsworth said.

Provided jurisdiction and venue can be managed in U.S. courts, ordinary, common law tort theories can be helpful: assault and battery, infliction of emotional distress, and unjust enrichment. The challenge there, Collingsworth explained, is that "it takes years." He said a pre-2001 case against Exxon is going to trial only now.

"It shouldn't be that hard to enforce internationally agreed norms prohibiting the abuse of children," he said.

Another angle of attack on the problem panelists said, is section 307 of the U.S. Tariff Act, which prohibits the import of goods "mined, produced, or manufactured wholly or in part in any foreign country by convict labor or[] forced labor or[] indentured labor." In a related vein, I myself have seen certifications on products, and I wouldn't mind seeing more.

At the international level, the problem with abundant human rights instruments is a lack of enforcement mechanism, panelists said. Without enforcement, agreements and treaties "only offer cover for companies," Collingsworth said. 

A virtual attendee asked about defensive claims that child labor is culturally normal or provides a worthwhile avenue of economic opportunity. Collingsworth said that child advocates hear those arguments "all the time: ... someone says it’s always been that way, that’s how they learn a skill or trade." The speaker, he said, "is usually a rich guy benefiting from the labor.

"If you ask the kids if they’d rather work or go to school, that’s an easy one."

The ABA International Law Section hosted the panel "Childhood Denied: A Lifetime Lost: Conventions and Cases" on January 25. International law and gender consultant Elizabeth Brand moderated. Other panelists, besides Collingsworth, were Shandra Woworuntu, chair of the International Survivors of Trafficking Advisory Board; Jo Becker, advocacy director for the children's rights division at Human Rights Watch; Will Lathrop, field office director of the Ghanaian International Justice Mission.

Comparative law class explores death, migration, more

Publicdomainvectors.org

Law students in my comparative law class examined a range of compelling issues this spring, including medical aid in dying, immigration reform, sexual assault and violence against women, and restorative justice in Islamic law; and we benefited from Zoom guests, who joined from Afghanistan, Belgium, Poland, and America.

Teaching comparative law is a distinctive joy, as I have opined previously, because always there is more to learn. The subject gives students with wide-ranging passions an opportunity to explore previously untapped veins of research. Everyone in the class, including me, shares in the riches that are surfaced.

I owe gratitude to special guests who joined our class via Zoom to enrich our understanding and skills.

• Sylvia Lissens, a Ph.D. candidate and teaching assistant in comparative law, joined from KU Leuven in Belgium to talk about EU law-making and share a European legal perspective.
• Ugo S. Stornaiolo Silva, an Ecuadorean lawyer and LL.M. candidate, joined from Jagiellonian University in Poland, to talk about Ecuadorean constitutional law and share a Latin American legal perspective.
• A Dutch friend (whose name I withhold for his security), a humanitarian aid worker, joined from Kabul, Afghanistan, to talk about aid delivery within domestic legal constraints in the Middle East.
• Misty Peltz-Steele, a law librarian (and my generous wife), joined from Roger Williams University Law School in Rhode Island to orient students on foreign, comparative, and international legal research.
  

Next year, I'll be on a break from teaching comparative law, as I tackle two sections of 1L torts. Fortunately, to tide me over, I have a raft of ambitious and thoughtfully developed student research projects on which to ruminate, including the following. I thank our guests and especially thank my students for a rewarding semester.

Sarah Barnes, Dignified Death: A Comparative Analysis of Medical Aid in Dying Between the United States and the Netherlands.  Medical aid in dying (MAID), also known as physician assisted suicide, has been a growing concept globally for several decades. The ethical, moral, and legal issues surrounding the practice have caused some jurisdictions to proceed with caution and others to abandon it completely. While creating processes and procedures around MAID can be complicated and daunting, a few countries have managed to successfully implement a system in which their citizens can participate. The following compares and analyzes two jurisdictions, the United States and the Netherlands, that have managed to provide this practice and allow those who are eligible a way to die with dignity.

Morgan Dunham, Implementing Change: A Call for a Point-Based Immigration System in the United States. As the United States attempts to compete on a global scale with other economic powers, the ability of countries to attract foreign workers to their shores permanently is placed under a microscope. While immigration is a controversial issue across the globe, it is also a growing reality. This paper examines the U.S. employment-based immigration system in comparison with the employment-based hybrid system of the Commonwealth of Australia, focusing on its use of a point-based merit system in screening applicants. In addition, this paper examines attempts by legislators in each country to incorporate elements of the other system to improve efficiency. Through an overview of each country’s paths to legal permanent residency, zones of convergence are analyzed to better highlight the benefits and limitations of each system. 

Jordan Lambdin, "Call Them by Their True Names": Comparing the United States Violence Against Women Act to Chile's Femicide Laws. Violence against women is linked to legal and social institutions, as well as cultural value systems. This project compares the legal systems and codes relating to violence against women in the United States (U.S.) and Chile. The objective of this project is to compare the similarities and differences between the U.S. approach to criminalize domestic violence and Chile’s femicide criminalizing code, namely the lack of a femicide/intimate partner homicide definition or criminalizing statute. This project aims to explain the different U.S. and Chilean cultural and legal responses to criminalizing violence against women. Both systems are part of a global culture of violence against women that aims to physically and culturally destroy women as a group. The result is the repeated destruction and death of many thousands of women.

Sara Zaman, What is a Sexual Offense?: A Legal Comparison Between Pakistan and the United States. Sexual offenses are fairly defined in the same manner across countries. The passage of Pakistan’s Protection of Women (Criminal Laws Amendment) Act of 2006 played a key role in defining sexual assault against women after the Hudood Ordinance of 1979 received severe criticism from the Pakistani population and human rights groups. Likewise, in the United States, the Model Penal Code draft of 1962 also provided a definition of sexual assault. The two documents have striking similarities despite the fact that they were written thousands of miles apart by very distinct cultures. However, the differences are still noted. The laws of both Pakistan and the United States can be improved by comparing and contrasting these two documents and incorporating the necessary and important provisions that they may lack.

[Name withheld for political sensitivity,] Restorative Justice Theory: Iran and USA.  This paper explores the forms of punishment and mitigation related to criminal acts in Iranian and American criminal law, with a predominant focus on the restorative justice theory. The purpose of this paper is to form a comparative analysis between the Restorative Justice theory in Iran and the United States. This paper will touch on subjects such as, why Iran and the United States moved towards to restorative justice theory, how their criminal courts framework function, a comparative analysis of the act of excusing the guilty party in criminal cases between the lawful frameworks and the comparison of Qisas in Iran and restorative justice theory in the U.S. Finally, I will highlight the similarities and differences between the restorative justice theory in Iran and the United States. This paper hopes to clarify the United States construct of justice lacks the critical components of mercy and compassion which are essential towards the attainment of a fair and equitable justice system.  As a guidance for progressing, the U.S. should look at the Iranian criminal justice system as an example of how to provide a fair and just system.

Flags from Flagpedia.net.

Public records make $363m toxic-tort verdict possible

Condensed ethylene oxide, a carcinogen.

102% Yield via Wikimedia Commons CC BY-SA 4.0

Public records made possible a $363m verdict in a toxic tort case in September.

For the ABA Journal, attorneys Jennifer M. Cascio, Lance D. Northcutt, and Patrick A. Salvi II wrote about how they won the verdict in an Illinois jury trial (limited free access). They explained:

In August 2018, a federal report revealed that a small community southwest of Chicago had an elevated cancer risk due to emissions of a carcinogen from two innocuous buildings situated between a Target and a Denny’s. Those buildings were operated by the medical device sterilization company Sterigenics, which had been releasing a colorless, odorless human carcinogen [ethylene oxide] since 1985 without any warning to the surrounding community that included homes, schools, businesses and parks—all within a mile.

Bringing such a case is easier said than done; I know because I saw it in Erin Brockovich and A Civil Action. Seriously, though, even at the pleading stage, showing evidence of proximate causation between a toxic substance and specific plaintiffs' illnesses is a towering hurdle, much less the proof that would be needed to win a trial. And a plaintiff that cannot get over the pleading hurdle cannot get discovery.

It's noteworthy, then, that, as described, this case started with a public federal report and proceeded thanks in part to the Freedom of Information Act (FOIA). Especially burdened by a dearth of relevant epidemiological evidence, the plaintiff lawyers wrote that they amassed the necessary evidence of causation by "gather[ing] documents via Freedom of Information Act requests and digging through state and federal databases."

We like to think that our not insubstantial regulatory state is using the resources that it itself produces to safeguard public health. For whatever reason, and there are many reasons, that's the exception to the rule. America rather relies heavily on the tort system as a first-line accountability mechanism. FOIA is vital to bridge the gap between public and private enforcement. 

The case moreover shows the importance of affirmative disclosures of scientific information through publicly available databases. Here, fortunately for affected persons, plaintiff lawyers were on the hunt for evidence. No doubt, though, some victims did not know they were victims of pollution, a colorless, odorless gas, no less, until they saw an attorney's ad. FOIA without affirmative disclosure is useless when people don't know there's a reason to be asking questions. Cancer sufferers might have other things on their minds.

The case, one of more than 700 of its kind against the same defendant, is Kamuda v. Sterigenics, U.S. LLC, No. 2018-L-010475 (Ill. Cir. Ct. verdict Sept. 19, 2022).

Opioid settlement disbursements must be transparent, state high court rules in row over nonprofit foundation

The nonprofit foundation responsible for disbursing hundreds of millions of dollars of opioid settlement money in Ohio is subject to state freedom of information laws, the state supreme court ruled Thursday.

Big money is flowing out of opioid settlements, such as the $10 billion deal struck by pharmacies CVS and Walgreens. Ohio will see some $450 million of that money, Emily Field reported for Law360 (limited free access). At least half of it will be disbursed by a nonprofit organization that state and local governments created for the purpose, the OneOhio Recovery Foundation.

A representative of Harm Reduction Ohio (HRO), another nonprofit organization, concerned with preventing overdose deaths, was shown the door at a OneOhio meeting not open to the public. OneOhio subsequently refused to reply to record requests under the Ohio public records act (PRA).

That will change now, as the Ohio Supreme Court ruled unanimously that OneOhio is the functional equivalent of a public entity, the test for bringing quasi-private actors within the scope of the PRA. To determine functional equivalence, the court explained, a totality-of-the-circumstances, multi-factor test asks:

(1) whether the entity performs a governmental function,
(2) the level of government funding, 
(3) the extent of government involvement or regulation, and 
(4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.

The burden of proof is "clear and convincing," which is no low hurdle. 

The factors are common in functional equivalence tests in state sunshine laws in the United States. The devil is in the application. Characteristically, HRO and OneOhio posited very different analyses.

Though the multi-factor test makes no one factor dispositive, funding often proves controlling in cases such as these, even to the point that some states employ a disjunctive formulation along the lines of "state funding or state power." Here, the parties looked at the problem from differing angles. HRO characterized the money under the control of OneOhio, an entity created by government, as public money. OneOhio rather looked to the source of the money, private corporations, and to the ultimate beneficiaries, private-person recipients of state aid.

HRO had it right, the court decided. The analysis was bolstered by the inescapable conclusion that OneOhio was created by state and local governments through a memorandum of understanding specifically about how they would handle the money. OneOhio tried to resist the fourth factor by articulating it as conjunctive, thus, requiring an intent to evade the PRA. But the court had none of it.

Another somewhat superfluous argument by OneOhio merits mention. The foundation argued that subjecting it to the PRA would makes its funds vulnerable to raiding for other purposes by the legislature. Neither here nor there, the court opined. I suggest moreover that OneOhio's PRA accessibility is the result not the cause of its public status.

What's interesting about the argument from a tort perspective, though, is that OneOhio pointed to the example of tobacco settlement money. The Ohio executive and legislature responded to the 2008 financial crisis by diverting $230m in proceeds from the 1998 Master Settlement Agreement with Big Tobacco to unrelated purposes, namely, balancing the budget and fostering job creation. The Ohio Supreme Court upheld the diversion against constitutional challenges in 2010.

The application in the states of functional equivalence and similar tests to extend sunshine laws to quasi-private actors is highly variable, as much a function of the eye, or prejudices, of the beholder, as of any mathematical formula. That makes it difficult to extrapolate from the Ohio case beyond Ohio.

Still, I find this case offering a compelling analysis to access the infamously secret records of university foundations in other states. Those records, too, often are secreted upon the rationale that the funds originate with private donors. Consistently with the instant case, but not representing a majority rule in the states, the Ohio Supreme Court sided with a newspaper in 1992 in granting PRA access to the donor rolls of the nonprofit University of Toledo Foundation.

The instant case is State ex rel. Harm Reduction Ohio v. OneOhio Recovery Foundation, No. 2023-Ohio-1547 (May 11, 2023).

German court protects political satire in 'fake interview'

Katrin Göring-Eckardt
Heinrich-Böll-Stiftung CC BY-SA 2.0

In August 2022, a German court rejected a politician's claim that a satiric "fake interview" violated her rights.

Attorney Roman Brtka reported on the case for Bird & Bird Munich, and I rely on his report at Media Writes. The case is compelling because the fact scenario, and usually the same outcome, arises periodically in American law from the likes of an Onion "exclusive interview."

The plaintiff in the German case was Katrin Göring-Eckardt of the German Green Party. The defendant was Tichys Einblick (TE), a wide-ranging opinion magazine sometimes identified with right-wing populism. The content at issue was a wholly fictitious interview that mocked Göring-Eckardt's liberal position on pronouns. TE flagged the piece expressly headlined, "Achtung Satire" ("Attention Satire").

Brtka provided a helpful explanation of pronouns in the German language and how they play out in hot-button gender identity politics. The interview employed "extremely exaggerated ... gender-neutral language" to mock Göring-Eckardt.

The plaintiff invoked the German constitutional "right of personality," an outgrowth of broad European privacy law and close cousin of data protection. In this context, the right comes perhaps closest in American tort law to false light invasion of privacy. A better analogy would be a marriage of the right of personal autonomy, as known to medical decision-making in American constitutional law, to the interest of anti-disparagement, as known to trademark law.

The Hamburg regional court concluded, according to Brtka, "that the unbiased and reasonable audience could ... recognise, from the hyperbolic use of gender forms and the exaggerated demands mentioned in the article, that these were not actual statements made by the plaintiff. The mere fact that individual readers might come to a different understanding did not change this." Without any asserted truth, there could be no misrepresentation of the plaintiff's person, so no infringement of the plaintiff's personality right.

Brtka commented that "[i]t remains to be seen" whether the courts would protect satire that is not so plainly labeled, such that the satiric nature must be inferred from the content itself.

TE also reported the outcome of the case.

Unlike TE, The Onion, "America's Finest News Source," is satire through and through, even as it has been sold between media companies with other properties. The Onion's non-satirical supplement The AV Club was always branded distinctively and spun off in 2012. Taken in context, it's very difficult to mistake Onion content as true, though people sometimes infamously do. 

Like the German regional court, American courts, heeding the First Amendment, cut a wide berth for satire, likewise employing objective reasonableness to examine both content and context. Without an assertion susceptible of being proved true or false, there can be no winning claim of false light or defamation.

For satirists, closely related legal problems can arise from real interviews under pretenses the interviewee alleges were false: think Rudy Giuliani in Borat Subsequent Moviefilm. The Borat films and media enterprises such as The Daily Show use releases to help protect themselves. Even a well worded release is not ironclad against a claim that acquiescence was procured through fraud. But whether upon the release or lack of falsity, claims are almost invariably dismissed. The practical problem for plaintiffs is that what the camera captures is true, and the judgment that frames it is merely opinion.

Evidencing American courts' deference to hyperbole, Fox News prevailed in a 2020 lawsuit in part upon the theory that reasonable viewers did not regard the recently newsworthy Tucker Carlson as a source of facts. In 2022, the Sixth Circuit denied recovery to a man who satirized the Facebook page of his local police, and then was charged with and acquitted of a crime. Police were entitled to qualified immunity from the man's civil rights claim, the court concluded. The U.S. Supreme Court denied review amid a set of engaging amicus briefs, including one from The Onion.

Since the E. Jean Carroll verdict against former President Donald Trump, there has been a flurry of commentary suggesting that defamation law is the way out of the misinformation quagmire. It's really not, for a bunch of reasons that are beyond the scope of this post. Relevant here, the understandable thirst for accountability in the misinformation age might push against the traditionally wide berth of protection for satire. Let's hope the courts resist that push, because satire itself is a vital accountability mechanism.

OER saves students money, but printing is too pricey

Markus Büsges (leomaria design)
für Wikimedia Deutschland e. V. (CC BY-SA 4.0)

Open educational resources (OER) are all the rage in higher education, but the cost of hard copies for students remains a problem.

At a panel on OER at a UMass Dartmouth teaching and learning conference in January, I had the privilege of talking about my experience using Tortz, my own textbook for 1L Torts (chapters 1-7 online, remainder in development and coming soon). Ace librarian Emma Wood kindly invited me to co-pontificate with Professor Elisabeth Buck and Dean Shannon Jenkins on a panel, "The Price is Wrong: Lowering Textbook Costs with OER and Other Innovations." Wood is co-author, with law librarian Misty Peltz-Steele (my wife), of Open Your Casebooks Please: Identifying Alternatives to Langdell's Legacy (on this blog).

My campus is pushing for OER, and for good reason. We all know how exorbitant book costs have become for students. And academic authors are hardly beneficiaries of the proceeds. The first book I joined as a co-author in 2006, for 1L Torts, bore a sale price in the neighborhood of $100. I received $1 to $2 per book (and gave to charity the dollars generated by my own students). My students for the last two years have paid nothing for Tortz.  Besides the cost savings, I get to teach from materials I wrote, compiled, and edited, so I know the content and how to use it better than I could anyone else's.

My students' book for 1L Property this past academic year cost $313. It's an excellent book, and I'm not knocking the professor who chose it. Developing my own materials for a foundational course is a labor-intensive project that I felt I could tackle only with the freedom, afforded by tenure, to set my own agenda, and some 20 years' experience teaching torts. At that, I've benefited and borrowed heavily from the pedagogy of a treasured mentor, Professor Marshall Shapo. Without the opportunity to have invested in Tortz, I'd be using a pricey commercial book, too.

A necessary aside: Technically speaking, my book is not OER, because I retain copyright. By definition, I'm told by higher education officials, "OER" must be made available upon a Creative Commons license, or released into the public domain. That's an irrevocable commitment. I'm not willing to do that. In my experience working with higher education institutions around the world, I have found that some out there would seize on freely available intellectual property while profiting handsomely from students desperate for opportunity. In such a case, I would rather negotiate a license and decide myself what to do with any proceeds. I freely licensed Tortz to my own students for the last two years. This is an interesting problem, but for another time.

So Tortz has been working out well. But now I'm looking at a roadblock: hard copies.

For the past two years, I have taught Torts I and II only to small night classes, and I've provided them with hard copies of the text. I made the hard copies on our faculty copiers, and the numbers were small enough not to be of concern for our budget. But beginning in the fall, I'll have two sections of torts, day and night, anticipating 70 or so students. That's too many prints to fold hard copies into the office budget.

I need my students to have hard copies for many reasons. The first issue is comprehension. For me, a reader of a certain age, I still have trouble absorbing content from a screen as well as from a page. When it's important for me to get it, I print a hard copy to read. Many of my law students, of all ages, but especially non-traditional and part-time students, share my preference. When I did a peer teaching observation for my colleague in property law, I saw students using both online and hard-copy versions of the $313 book. A hard-copy user told me that she uses the online version, but still needs to highlight and "engage with the text" to process the content on the first go.

A second issue arises in the exam. I prefer to give my 1L students an open-materials but closed-universe exam. I find that a closed-book exam tests more memorization than analytical skill, while an open-universe exam tests principally resistance to distraction. Regardless, it's my pedagogical choice. The problem is that the exam software we use locks students out of all computer access besides the exam. For any materials they're allowed to have, namely, the book, they need to have an old-fashioned hard copy.

So how to put hard copies in 70 students' hands without re-introducing the cost problem?

As is typical, my university has a contract with a bookstore operator, and book sales are supposed to go through the bookstore. The bookstore uses a contractor for printing. The contractor, XanEdu, after weeks of calculation, priced my book for the fall semester only: a ready-made PDF of 619 pages with basic RGB screen (not photo-quality) color, at $238 per print. That's a non-starter.

Printing at Office Depot would cost just a bit more than that. My university no longer has a print center, but I think its prices when there was one were comparable to retail.

A print-on-demand company, Lulu, was founded by Red Hat tech entrepreneur Bob Young, who became frustrated with the traditional publishing industry when he wanted to tell his own story. Lulu priced out at just $27 per book, which definitely makes one wonder what's going on at XanEdu. Lulu charges about $12 to ship, USPS Priority, but that takes up to 11 business days, which is far too long for students to order only once school starts. Also, it's not clear to me whether I can offer print on demand consistently with the university's bookstore contract. The bookstore has not answered my query as to what the mark-up would be to pre-order copies in bulk from Lulu.

I've kicked the issue upstairs, so to speak, to the law school administration. The associate dean promised to take the question up more stairs, to the university. Budgeting is above my pay grade, after all. I'd like to see the university support OER by volunteering to eat the printing costs. If I'm pleasantly surprised, I'll let you know. It's more likely the university will offer to deduct the costs from my pay.

Anyway, I am excited about OER, or freely licensed "OER," as a game changer for me to be more effective in the classroom. I appreciate that my university supports the OER initiative at least in spirit, and I am grateful to have been included in Emma Wood's thought-provoking discussion with Professor Buck and Dean Jenkins.