Showing posts with label ABA. Show all posts
Showing posts with label ABA. Show all posts

Thursday, February 29, 2024

ABA adopts academic freedom standard, but 'Crossroads' convo shows, not everybody gets it

Is the American Bar Association (ABA) "Doing Enough to Promote Viewpoint Diversity?," panelists were asked at the ABA Midyear Meeting in Louisville, Ky., on February 3.

No, I say emphatically. So I was pleased that my take was represented on the panel by Kentucky attorney Philip D. Williamson and South Texas College of Law Professor Josh Blackman.

Having made a quantitative assessment of 10 years of ABA amicus briefs in the U.S. Supreme Court, Williamson listed positions to which the ABA has committed itself. The ABA has taken positions, such as on Roe and Dobbs, that are not related to the practice of law or legal professionalism, and about which there is rational disagreement among lawyers. 

ABA briefs also take "diametrically opposed" positions, Williamson said: favoring stare decisis in Dobbs, but disfavoring it on juror unanimity; favoring state power in a Republican administration, favoring federal power in a Democrat administration; regarding tribal classifications as political rather than racial, and then, under the Trump travel ban, arguing nationality classifications as racial rather than political. One might ask, Williamson posited, "Why does the ABA care about this at all?"

The only common thread in ABA positions, Williamson said, is consistency with liberal politics. Would right-of-center lawyers feel welcome in the ABA?, Williamson asked. "No." There might be one amicus in the pile that aligned with a red-state attorney general, Williamson said, but it's "hard to find."

Williamson also criticized ABA policy on racial classifications as hypocritical. Until recently, the ABA had numerical quotas based on race in composing panels for continuing legal education (CLE) programs. The ABA backed down when the Florida Bar resisted awarding CLE credits upon a policy it viewed as unconstitutionally racially discriminatory.

Williamson observed that for ABA diversity purposes, "Asian" regards a Bangladeshi person and a Chinese person as "interchangeable." "Maybe we could fine tune how we think about race," Williamson said, "rather than how fast you sunburn in Miami." You won't read that in the ABA coverage of the event.

Williamson, Thomas, Blackman, and Rosenblum
RJ Peltz-Steele CC BY-NC-SA 4.0
Chicago attorney Juan R. Thomas said he welcomes viewpoint diversity, subject to one condition: He paraphrased James Baldwin: "We can disagree and still love each other unless your disagreement is rooted in my oppression and denial of my humanity and right to exist." (The quote is widely attributed to Baldwin, but I cannot find an original source.)

We can debate which Super Bowl team is the better, Thomas said, but not whether they play football.

I admire Thomas quite a bit, and the Baldwin quote is a self-evident truth. But it's also a red herring.

Blackman asked in response—also omitted from the ABA coverage—"if I can't oppose qualified immunity because it's not grounded in the Fourteenth Amendment, that makes me a racist?"

Thomas, who is a minister besides lawyer, also voiced a "dirty secret," that "not all people of color are progressives." He should have directed the observation to the ABA, not to his co-panelist adversaries. Their very point was that the ABA should be wary of taking politically charged positions over which reasonable, informed people disagree.

To Thomas's point, a lawyer commenting from the audience said something that resonated with me: that he personally opposes lawmakers making abortion decisions for women, but he believes that Roe was wrongly decided as a matter of federalism. That's the unpopular conclusion that I, too, came to, many years ago. I refrain from voicing it in the liberal circles of academia.

My position on affirmative action is similar. I champion socioeconomic equality and fully acknowledge systemic racism, but I so abhor government classification based on race that I cannot countenance official discrimination as a purported redress of discrimination. I rather would redress systemic inequalities through socioeconomic amelioration.

I said as much once out loud, and the r-word charges upended my life and career. An ABA accreditation site team at the time was fully informed of the matter and brushed it under the rug. One rocks the boat at one's hazard at an ABA-compliant school.

Which brings me to an interesting point and an occasion for the ABA discussion: At the time of the caucus meeting, the ABA had just signed off on new legal education Standard 208, which requires ABA-accredited law schools, such as the one where I work, to "adopt, publish, and adhere to written policies that protect academic freedom."

That only took 70 years since the Second Red Scare.

I'm keen to see whether the ABA really will follow through. ABA accreditation of law schools is nothing but a pricey protection racket. Entry costs are steep to join the club, but once you're in, you can do no wrong—almost: woe to the unfortunate straggler left to hang in the wind to prove the legitimacy of the system. The ABA is terrified of losing its monopoly power over legal education, as it did over judicial confirmation.

The kicker-quote in the ABA's own coverage of the caucus program does not induce confidence: "'I would be proud to be the last member standing of an association that fights against oppression,' [attorney and author Lauren Stiller Rikleen] stated."

Right, because that's what this is about. Standing for equality and rule of law makes me pro oppression.

The ABA Midyear panel on "Are the ABA and the Legal Profession Doing Enough to Promote Viewpoint Diversity?" comprised Williamson, Blackman, Thomas, and Oregon Attorney General Ellen F. Rosenblum. Senior U.S. Sixth Circuit Judge Danny J. Boggs moderated.

Monday, February 19, 2024

Kyiv law school strives for normalcy

The dean of a Kyiv, Ukraine, law school spoke to American Bar Association (ABA) lawyers Thursday via Zoom about teaching law in a war zone.

I once had a class halted by a (false) fire alarm. That was a hassle.

I've never had a class disrupted by an alarm warning of an incoming hypersonic missile.

Dean Volodymyr Venher
Zoom, Feb. 15, 2024
Volodymyr Venher has. He's dean of the law school at the National University of Kyiv-Mohyla Academy (KMA). Alarms happen once or twice a week, he told the ABA Seasoned Lawyers Interest Network. Russian attacks target civilian infrastructure.

"Sometimes it's really scary," Venher said.

Kyiv has a protective barrier that includes U.S. Patriot missiles, Venher said. But some Russian missiles get through. Two weeks ago, he said, a missile struck 300 meters from his apartment. He lives on the 11th floor, and the building shook, loosening bricks and concrete.

A KMA professor in biology was killed at her home in January.

Kyiv has it a little worse than Lviv, which sees fewer missile attacks, Dean Venher said. But Kyiv is "paradise," Venher said, compared with Kharkiv, where Russia has targeted universities.

This missile attack on a residential complex in 2023 killed five.
State Emergency Service of Ukraine via Wikimedia Commons CC BY 4.0

Faculty and students at KMA Law carry on. Venher said that to endure the constant threat of war, it helps to maintain some semblance of normalcy. His law school ceased operation for only one month, he said, in March 2022. Classes resumed online in April and in hybrid form for the start of a new academic year in September 2022.

Naturally the school was worried about what enrollment would look like. But students wanted normalcy, too. Of an admitted class of 120 in fall 2022, 110 turned up in person to start the year, Venher said. There are occasional setbacks in loss of electricity and internet outages. The internet problem was solved when the school bought two Starlink subscriptions, Venher said.

KMA, 2009
Роман Днепр via Wikimedia Commons CC BY-SA 3.0
Law faculty try to continue both their teaching and research, Venher said. Many focus their work on what it will take to rebuild Ukraine after the war. Some focus on humanitarian needs. Some, including Venher, focus on the law of war and problems of accountability.

There is a mental toll. After missile strikes, one can see people's unhappiness, Venher said. Many people are afflicted with depression and survivor guilt.

"The human brain can adapt to anything," Venher said. "We hope for a better future."

KMA Law is keen to connect with partners abroad. Connecting electronically with the outside world helps to keep spirits up and maintains a status quo ante, a connectedness that would have been ordinary before the war. Venher said that the school welcomes even opportunities for law students to practice speaking English with their counterparts elsewhere. The school is keen too for faculty to find opportunities to present research and expertise.

The school also welcomes resources. A French benefactor recently donated a collection of law books, and the school could use more legal resources in English and French. Under the circumstances, the school cannot afford pricey legal database subscriptions, Venher explained. So students and researchers are more dependent than usual on hardcopy resources.

The school website provides guidance on financial contributions.

This story was updated on Feb. 19 at 9:30 a.m. when I confirmed the death of KMA Prof. Lyudmyla Shevtsova.

Tuesday, February 13, 2024

Lawyers on social media delight, inform, raise ethics questions about attorney-client relationships

An attorney panel earlier this month shared the joys and hazards of lawyers addressing the general public through social media.

A hat tip to Mississippi attorney Kye C. Handy, Balch & Bingham, for introducing me to California attorney and influencer Reb Masel on TikTok, the J.D. genius behind Reading Iconic Court Transcripts and other legal commentary.

@rebmasel i dedicate this one to Kohl’s cash #transcripts ♬ original sound - reb for the rebrand
Reb Masel's Rebuttal
(Spotify, Apple, YouTube)
Reb Masel hosts the Rebuttal podcast at Spotify, Apple, and YouTube. Read more about her at Tubefilter, where she said in fall 2023 that she practices in defense-side civil litigation "for now." If you must know more about Pepperdine Law alumna Reb Masel in the muggle world, the Daily Mail wrote about her in 2022.

Handy served on an ethics panel at the Next Generation and the Future of Business Litigation program of the Tort Trial & Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the 2024 ABA Midyear meeting in Louisville, Ky., earlier this month.

A key takeaway of the panel for attorneys: be careful you don't create an attorney-client relationship through social media posts. If giving legal advice, disclaim, disclaim, disclaim.

Florida attorney Richard Rivera said that ethical obligations may arise merely from a viewer's subjective belief that an attorney-client relationship exists. I presume there is a reasonableness check on that, but the objective measure would be lay perception, not the knowledge and experience of the attorney. Thus, a social media post can trigger an attorney's duties of confidentiality and timely response to questions.

Accordingly, Washington attorney Matthew Albrecht warned attorneys to keep up with their inboxes in all media. If a viewer or listener reaches out through a web form, social media direct messaging, etc., asking a question in response to a post, failure to respond promptly can be an ethics violation.

Moreover, an attorney must be wary of questioners who overshare, Albrecht said. They might post comments on a public website that compromise their cases, and the attorney may be obliged to delete the comments to protect the prospective client. A questioner also might provide information that puts the attorney in conflict with prior or existing clients. So an attorney with any online presence should have and adhere to a careful policy for receiving and processing incoming communications.

I wish I could count on a response from a doctor's office when I ask a question. Clearly, the bar for attorneys is higher.

Probably needless to say, some attorneys give advice in mass media that might be accurate in context and not run afoul of ethics rules, but might at the same time invite trouble in problematic misunderstanding. For example, many online videos present Texas lawyers schooling viewers on the use of force in defense of property under the state's generous castle laws. Handy shared one video by a lawyer who described a property owner vs. trespasser confrontation in which the property owner might lawfully "beat her ass."

To inform professionalism, Handy recommended to law students and new lawyers the podcast Young Lawyer Rising from the Legal Talk Network, an ABA partner.

The ABA TIPS panel comprised Albrecht, Handy, Rivera, and D.C. attorney Josephine M. Bahn.

Saturday, February 10, 2024

Culp's critical perspectives endure in Chang lecture

Prof. Chang
Seattle Law

Professor Robert S. Chang delivered the inaugural Jerome M. Culp, Jr. Critical Theory Lecture at Duke Law School February 1.

Chang is professor of law and executive director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law. He spoke on, "How Do We Come to Participate in the Struggles of Those Who Are Not Us?" The lecture is posted at Panopto and on YouTube (embedded below, at bottom).

Chang traced contemporary racial differences in American history from the burning of Jamestown, Va., in the 17th century to the Civil War, Chinese exclusion laws, and, ultimately, the legal battle over affirmative action. Born in Korea, Chang's work emerges from ethnic perspective and personal experience growing up in small-town America.

My alma mater, Duke Law doesn't need me to do public relations. I mention the Chang lecture because of Professor Culp, for whom the lecture series is named. Culp was the first person of color to earn tenure at Duke Law, where he taught from 1985 until his death in 2004. He was, as Duke recounted, an internationally acclaimed critical theorist.

Culp also was my torts professor. As I tell students today, at that time, I didn't well understand Culp's MO. I suffered the common 1L affliction of wanting to know just what I needed to know. I yet saw law as learnable vocation, not profession, law school as mere trade school, not intellectual engagement with law and society. Culp didn't seem to be doing his part to make me a billboard attorney who could litigate a car accident.

I got past those hurdles. In time, I had the immeasurable good fortune of knowing Culp as a fellow academic. I came to understand that his 1L pedagogy was a cleverly subtle and seductive inculcation in critical theory. I came to appreciate him as one of my best law professors. His pedagogy powerfully shaped my approach to teaching torts, not to mention thinking about law and society in general. Culp is one of three academics to whom my Tortz textbook is dedicated.

The start of the Chang lecture video (from 2:05 to 7:50 at Panopto; YouTube cued and embedded below) features Professor Culp himself, some 20 years ago, complemented by affecting images, talking about his own life and how it motivated him to study and teach law.


To be clear, I'm not wholly in agreement with Chang on the merits of his talk, even if Culp might have been. Chang concludes that the U.S. Supreme Court decision contra affirmative action in 2023 represents an "intensification" of white racial identity and resurgent white supremacy. Chang's conclusion contains a kernel of concerning merit, but also provocatively overstates the matter.

I rather agree with what Professor Josh Blackman told an ABA program on viewpoint diversity at the Midyear Meeting in Louisville, Ky., last week: there has to be room to express a view of what the Fourteenth Amendment means, even if contra the acceptable "woke" ideology, without being branded "racist." 

Critical theory to me is, let's say, critical for exposing fault lines in our society that run contrary to our values and demand remediation. Accordingly, critical approaches form vital threads in my teaching.

But critical race theory does more harm than good when it muddies the distinction between malevolent racism and systemic inequality. And many adherents to critical theory (not necessarily Chang or Culp) go a dangerous measure further, encouraging generalizations about persons' intentions based on their skin color. I can't sign on to that.

Nevertheless, that some critical perspectives sit poorly with me doesn't mean we should avoid discussing them. Chang's lecture is a superb and coherent survey of race and American history with thought provoking implications for our time.

A nephew of mine (as a matter of fact, a young man who is racially Korean and grew up in small-town America) recently suggested to me that adults of my (13th) generation can sometimes be wrong.

I'm considering the possibility.

Tuesday, February 6, 2024

AI can make law better and more accessible; it won't

Gencraft AI image
Artificial intelligence is changing the legal profession, and the supply of legal services is growing even more disconnected from demand.

The latter proposition is my assessment, but experts agreed at a national bar conference last week that AI will change the face of legal practice for attorneys and clients, as well as law students and professors.

Lexis and Westlaw each recently launched a generative AI product, Lexis+ AI Legal Assistant and AI-Assisted Research on Westlaw Precision. One might fairly expect that these tools will make legal work faster and more efficient, which in turn would make legal services accessible to more people. I fear the opposite will happen.

The endangered first-year associate. The problem boils down to the elimination of entry-level jobs in legal practice. Panelists at The Next Generation and the Future of Business Litigation conference of the Tort Trial Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the ABA Midyear Meeting in Louisville, Kentucky, last week told audience members that AI now performs the work of first- and second-year associates in legal practice.

The change might or might not be revolutionary. Popular wisdom routinely describes generative AI as a turning point on the evolutionary scale. But panelists pointed out that legal research has seen sea change before, and the sky did not fall. Indeed, doomsayers once predicted the end of responsible legal practice upon the very advent of Lexis and Westlaw in displacement of books and paper—a transformation contemporary with my career. Law practice adapted, if not for the better in every respect.

It's in the work of junior attorneys that AI is having the greatest impact now. It can do the background legal research that a senior lawyer might assign to a junior lawyer upon acquisition of a new client or case. AI also can do the grunt work on which new lawyers cut their teeth, such as pleadings, motions, and discovery.

According to (aptly named) Oregon attorney Justice J. Brooks, lawyers are under huge pressure from clients and insurers to use AI, regardless of the opportunity cost in bringing up new attorneys. Fortune 500 companies are demanding that AI be part of a lawyer's services as a condition of retention. The corporate client will not pay for the five hours it takes an associate to draft discovery requests when AI can do it in 1.5.

Observers of law and technology, as well as the courts, have wrung their hands recently amid high-profile reports of AI-using lawyers behaving badly, for example, filing briefs citing sources that do not exist. Brooks said that a lawyer must review with a "critical eye" the research memorandum that AI produces. Insofar as there have been ethical lapses, "we've always had the problem of lawyers not reading cases," Illinois lawyer Jayne R. Reardon observed.

Faster and cheaper, but not always better, AI. There's the rub for newly minted associates: senior lawyers must bring the same scrutiny to bear on AI work that they bring to the toddling memo of the first-year associate. And AI works faster and cheaper.

Meanwhile, AI performs some mundane tasks better than a human lawyer. More than cutting corners, AI sometimes sees a new angle for interrogatories in discovery, Brooks said. Sometimes AI comes up with an inventive compromise for a problem in mediation, Kentucky attorney Stephen Embry said. AI can analyze dialogs to trace points of agreements and disagreement in negotiation, Illinois lawyer Svetlana Gitman reported.

AI does a quick and superb job on the odd request for boilerplate, North Carolina attorney Victoria Alvarez said. For example, "I need a North Carolina contract venue clause." And AI can organize quickly large data sets, she said, generating spreadsheets, tables, and graphics.

What AI cannot yet do well is good jobs news for senior lawyers and professors such as me: AI cannot make complex arguments, Brooks said. In fact, he likes to receive AI-drafted memoranda from legal opponents. They're easily recognizable, he said, and it's easy to pick apart their arguments, which are on par with the sophistication of a college freshman.

Similarly, Brooks said, AI is especially bad at working out solutions to problems in unsettled areas of law. It is confused when its training materials—all of the law and most of the commentary on it—point in different directions. 

In a way, AI is hampered by its own sweeping knowledge. It has so much information that it cannot readily discern what is important and what is not. A lawyer might readily understand, for example, that a trending theory in Ninth Circuit jurisprudence is the peculiar result of concurring philosophical leanings among involved judges and likely will be rejected when the issue arises in the Fifth Circuit, where philosophical leanings tend to the contrary. AI doesn't see that. That's where human insight still marks a peculiar distinction—for now, at least, and until I retire, I hope.

It's that lack of discernment that has caused AI to make up sources, Brandeis Law Professor Susan Tanner said. AI wants to please its user, Oregon lawyer Laura Caldera Loera explained. So if a lawyer queries AI, "Give me a case that says X," AI does what was asked. The questioner presumes the case exists, and the AI follows that lead. If it can't find the case, it extrapolates from known sources. And weirdly, as Tanner explained it, "[AI] wants to convince you that it's right" and is good at doing so.

Client confidences. The panelists discussed other issue with AI in legal practice, such as the importance of protecting client confidences. Information fed into an open AI in asking a question becomes part of the AI's knowledge base. A careless lawyer might reveal confidential information that the AI later discloses in response to someone else's different query.

Some law firms and commercial services are using closed AIs to manage the confidentiality problem. For example, a firm might train a closed AI system on an internal bank of previously drafted transactional documents. Lexis and Westlaw AIs are trained similarly on the full data sets of those proprietary databases, but not, like ChatGPT, on the open internet—Pornhub included, clinical psychologist Dan Jolivet said.

But any limited or closed AI system is then limited correspondingly in its ability to formulate responses. And closed systems still might compromise confidentiality around ethical walls within a firm. Tanner said that a questioner cannot instruct AI simply to disregard some information; such an instruction is fundamentally contrary to how generative AI works.

Law schools in the lurch.  Every panelist who addressed the problem of employment and training for new lawyers insisted that the profession must take responsibility for the gap that AI will create at the entry level. Brooks said he pushes back, if sometimes futilely, on client demands to eliminate people from the service chain. Some panelists echoed the tantalean promise of billing models that will replace the billable hour. But no one could map a path forward in which there would be other than idealistic incentives for law firms to hire and train new lawyers.

And that's a merry-go-round I've been on for decades. For the entirety of my academic career, the bar has bemoaned the lack of "practice ready" lawyers. And where have practitioners placed blame? Not on their bottom-line-driven, profit-making business models, but on law schools and law professors.

And law schools, under the yoke of ABA accreditation, have yielded. The law curriculum today is loaded with practice course requirements, bar prep requirements, field placement requirements, and pro bono requirements. We have as well, of course, dedicated faculty and administrative positions to meet these needs.

That's not bad in of itself, of course. The problem arises, though, in that the curriculum and staffing are zero-sum games. When law students load up on practice-oriented hours, they're not doing things that law students used to do. When finite employment lines are dedicated to practice roles, there are other kinds of teachers absent who used to be there.

No one pauses to ask what we're missing.

My friend and mentor Professor Andrew McClurg, retired from the University of Memphis, famously told students that they should make the most of law school, because for most of them, it would be the last time in their careers that they would be able to think about the law.

Take the elective in the thing that stimulates your mind, McClurg advised students (and I have followed suit as an academic adviser). Explore law with a not-nuts-and-bolts seminar, such as law and literature or international human rights. Embrace the theory and philosophy of law—even in, say, your 1L torts class.

When, like my wife once was, you're a legal services attorney struggling to pay on your educational debt and have a home and a family while trying to maintain some semblance of professional responsibility in managing an impossible load of 70 cases and clients pulling 24/7 in every direction, you're not going to have the luxury of thinking about the law.

Profit machines. What I learned from law's last great leap forward was that the "profession" will not take responsibility for training new lawyers. Lawyer salaries at the top will reach ever more for the heavens, while those same lawyers demand ever more of legal education, and of vastly less well compensated legal educators, to transform and give of themselves to be more trade school and less graduate education.

Tanner put words to what the powers-that-be in practice want for law schools to do with law students today: "Train them so that they're profitable."  In other words, make billing machines, not professionals.

Insofar as that has already happened, the result has been a widening, not narrowing, of the gap between supply and demand for legal services. Wealthy persons and corporations have the resources to secure bespoke legal services. They always will. In an AI world, bespoke legal services means humans capable of discernment and complex argument, "critical eyes." 

Ordinary people have ever less access to legal services. What law schools have to do is expensive, and debt-burdened students cannot afford to work for what ordinary people are able to pay.

A lack of in-practice training and failure of inculcation to law as historic profession rather than workaday trade will mean more lawyers who are minimally, but not more, competent; lawyers who can fill out forms, but not conceive new theories; lawyers who have been trained on simulations and pro bono hours, but were never taught or afforded an opportunity to think about the law

These new generations of lawyers will lack discernment. They will not be able to make complex arguments or to pioneer understanding in unsettled areas of law. They will be little different from and no more capable than the AIs that clients pay them to access, little better than a human equivalent to a Staples legal form pack.

These lawyers will be hopelessly outmatched by their bespoke brethren. The ordinary person's lawyer will be employed only because the economically protectionist bar will forbid direct lay access to AI for legal services.

The bar will comprise two tribes: a sparsely populated sect of elite lawyer-professionals, and a mass of lawyer-tradespeople who keep the factory drums of legal education churning out form wills and contracts to keep the rabble at bay.

The haves and the have nots. 

It's a brave new world, and there is nothing new under the sun.

The first ABA TIPS panel comprised Victoria Alvarez, Troutman Pepper, Charlotte, N.C., moderator; Laura Caldera Loera and Amanda Bryan, Bullivant Houser Bailey, Portland, Ore.; Professor Susan Tanner, Louis D. Brandeis School of Law, Louisville, Ky.; and Justice J. Brooks, Foster Garvey, Portland, Ore. The second ABA TIPS panel referenced here comprised Svetlana Gitman, American Arbitration Association-International Center for Dispute Resolution, Chicago, Ill., moderator; Stephen Embry, EmbryLaw LLC and TechLaw Crossroads, Louisville, Ky.; Reginald A. Holmes, arbitrator, mediator, tech entrepreneur, and engineer, Los Angeles, Cal.; and Jayne R. Reardon, Fisher Broyles, Chicago, Ill.

Thursday, January 25, 2024

Lawyers spotlight persecution of profession in Iran

Taymaz Valley via Flickr CC BY 2.0
Yesterday the International Law Section (ILS) of the American Bar Association (ABA) recognized the International Day of the Endangered Lawyer with a spotlight on Iran in a webinar, "Iranian Lawyers: Risking Their Licenses, Their Liberty, and Even Their Very Lives."

U.S. Court of International Trade Judge Delissa Anne Ridgway moderated a discussion with Margaret L. Satterthwaite, NYU law professor and U.N. Special Rapporteur on the Independence of Judges and Lawyers, and Stuart Russell, a Canadian lawyer and co-director of the International Association of People's Lawyers Monitoring Committee on Attacks on Lawyers, based in Bordeaux, France.

To suppress opposition to the ruling regime, especially since the 2009 "Green Movement," the speakers explained, the government of Iran has persecuted lawyers who dare to represent dissenters. Lawyers themselves have been imprisoned, and bar organizations have been disempowered in their regulatory oversight of the profession, Russell reported.

Judge Ridgway lauded a documentary, Nasrin (2020) (IMDb), which is available for $3 on multiple platforms. I'm adding it to my watch list (trailer below). Exemplary of Iranian lawyers' travails, Nasrin Sotoudeh, an activist and advocate for the rights of women and children in Iran and subject of the documentary, has been imprisoned multiple times, sentenced to lashes, and severely beaten. Voice of America reported Sotoudeh's most recent release from prison, on bail, in November 2023.

I note, DW also published a documentary piece on Sotoudeh, Protecting Human Rights in Iran (2023), available on YouTube.

The ABA ILS program was co-sponsored by the Middle East Committee, the International Human Rights Committee, and the Women's Interest Network. I am a member of the ABA ILS Legal Education and Specialist Certification Committee.

Tuesday, May 16, 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.

Monday, February 20, 2023

Judge teaches, supports professional development by encouraging appearance of junior attorneys

In multi-district civil antitrust litigation over turkey prices, a federal magistrate judge in Illinois in the fall issued an unusual order, calling on litigating firms to designate only junior attorneys to argue motions.

Pending before the court at the time were three pretrial matters, a discussion of expert testimony, a motion to preclude a deposition, and a motion to amend a scheduling order. On October 20, 2022, Magistrate Judge Gabriel A. Fuentes wrote:

[T]he Court would like to offer junior counsel an opportunity to speak to the expert discovery issue and to argue the two motions. The Court strikes the [planned telephonic] hearing and resets it to [Nov. 1,] when there will be ample time to address all three issues. If the parties do not indicate that they will permit junior associates to argue the motions, the Court will hold the hearing telephonically on the expert discovery issue only and will decide the two motions on the paper submissions.

The Court kindly requests that the parties confer and notify the courtroom deputy ... whether counsel with less than four years of experience after law school will be permitted to speak and argue; ideally, different counsel would argue the two different motions for the arguing parties. Also, multiple junior counsel could divide a party's arguments on a single motion if it makes logical sense to do so. Senior counsel of course may and should attend in a supervisory role and will be permitted to add or clarify as they see fit.

No inferences should be drawn about the importance of any motion to the Court based on the Court's attempt to create professional development opportunities for junior counsel. Additionally, the status hearing on the expert discovery issue strikes the Court as one that could be addressed by junior counsel.

(Paragraph breaks added.)

Judge Fuentes has served on the bench for almost four years, since May 2019. Before his appointment to the bench, Fuentes was an accomplished lawyer, and before law school, an accomplished journalist.

Fuentes wrote news and sports for local papers as a secondary-school student, and he worked his way up to managing editor of the Daily Northwestern while at the Medill Journalism School. He worked for four years as a reporter for The Los Angeles Times before going back to the Northwestern Pritzker Law School. After six years as an attorney associate, Fuentes made partner at Jenner and Block; left to serve about five years as an assistant U.S. attorney; then returned to Jenner and Block for 13 more years.

While practicing as a litigator in white collar defense, antitrust, and media law, Fuentes maintained a heavy docket of pro bono practice. In 2015, the Chicago Bar Foundation recognized his work "on indigent criminal defense, prisoner rights, the protection of voting rights for minorities, and First Amendment issues." In particular, Fuentes never stayed true to his journalistic roots, for example, once negotiating with counsel for Western University Illinois University on behalf of a student investigative journalist.

Being also a product of journalism and law schools, and likewise having represented student journalists pro bono, I identify with Judge Fuentes's experience. More importantly, as a law professor, I appreciate Fuentes's initiative to help new attorneys in big-law practice to get real forensic experience. 

Much of what is wrong with legal education today can be traced to the bean-counter orientation of administrators, universities, and the American Bar Association as accreditor, all of which are more concerned with bar pass statistics, superficial diversity, and, above all else, revenues, than with whether students actually learn anything worthwhile or grow as moral actors. Yes, law schools do care about making students "practice ready," but that only because the bar, unlike the medical fraternity, has shirked its historic responsibility to teach. The responsibility has devolved wholly on law schools, where practical skills training has all but supplanted the policy, theory, and moral deliberation that are supposed to make law a profession rather than mere occupation.

Fuentes has counseled students at Medill and taught adjunct at Pritzker, so he's kept a hand in the classroom, too. I don't know Fuentes. But to me, his apparent ability to synthesize his career experiences into simultaneous roles of servant and mentor represents the very model of professional identity. His minute order entry of October 20 should be the norm, not a headline.

Judge Fuentes ruled on the motions on November 9, and entered into the record: "The Court extends its thanks to the parties and counsel for allowing junior associates to argue and address these matters, and the associates are commended for an excellent performance."

The underlying case is In re Turkey Antitrust Litigation, No. 1:19-cv-08318 (N.D. Ill. filed Dec. 19, 2019). HT @ Adrian Cruz, Law360.

Monday, November 14, 2022

In shadow of Ukraine war, webinar tells story of UN Genocide Convention, Polish-Jewish jurist Lemkin

The Jagiellonian Law Society and its President Elizabeth Zechenter, a visiting scholar at Emory, have put together another superb program prompted by the legal implications of the war in Ukraine.

"Lemkin, Genocide, and the Modern World" will run on Zoom in two parts, the first on December 1, 2022, at 12 noon U.S. EST, 1700 GMT, and the second in January, TBA. Free registration is required.

Here is a summary:

You are invited to a webinar on Raphael Lemkin, the UN Genocide Convention, and the likelihood of prosecution of the crime of genocide. Distinguished academics will discuss Lemkin and the Genocide Convention in light of the recent Russian aggression in Ukraine. Lemkin was Polish and Jewish and survived WWII. He had complex, divided loyalties and life experiences that influenced his work. He is often portrayed as a lone ranger, but he was effective in gaining support for his ideas, especially among women groups, who made the convention possible. Lemkin had a complex relationship with Stalin, which influenced his approach to the convention.

The Holocaust Encyclopedia has more on Raphael Lemkin.

Speakers include:

  • Professor Donna Lee-Frieze, Deakin University, Melbourne, Australia, a genocide studies scholar specializing in memory and aftermath; 
  • Professor Doug Irvin-Erickson, Carter School Director of the Genocide Prevention Program at George Mason University;
  • Professor A. Dirk Moses, Australian historian teaching in political science at the City College of New York, CUNY;
  • Professor Roman Kwiecien, Department of International Law at Jagiellonian University, arbitrator at the Permanent Court of Arbitration in the Hague) and the Court of Conciliation and Arbitration within the OSCE in Geneva;
  • Professor Marcin Marcinko, Jagiellonian University Law School, chair of the National Commission for Dissemination of International Humanitarian Law at the Main Board of the Polish Red Cross, and co-organizer of the Polish School of International Humanitarian Law of Armed Conflict.

The Jagiellonian Law Society hopes also to feature contributions from Ukrainian scholars, arrangements pending.

The program is a result of the collaboration of the Jagiellonian Law Society with support from the International Human Rights and Women Interest Committees of the American Bar Association; the New York State Bar, New York City Bar, and New Jersey Bar; the Department of Russian and East European Studies at the University of Pennsylvania; and the School of Diplomacy and International Relations at Seton Hall University.

Again, registration is free.

Monday, September 19, 2022

In 'Operation L,' Polish Special Forces rescued women judges, lawyers from Afghanistan amid chaotic U.S. exit

In an operation little known until recently, Polish Special Forces evacuated female judges and lawyers from Afghanistan in the wake of the chaotic U.S. exit in 2021.

I continue to discover stories of tribulation, heroism, and heartbreak emerging from last summer's debacle. The most haunting report remains one published at the time, though I caught up to it some months later, This American Life's nail-biting Prologue and Act One of "Getting Out."

In an action only recently come to light, Polish Special Forces within the NATO mission carried out "Operation L." As the Taliban took control of Kabul, female public officials, judges, and lawyers received threats of violence and murder. Prompted by the efforts of an Afghan judge and Polish lawyer, the Polish government deployed special forces.

Besides more than 1,000 other persons who escaped Afghanistan on flights organized by Polish authorities, soldiers evacuated to Poland a group of nearly 90 persons comprising women judges, lawyers, prosecutors, and their families.

In collaboration with the Kosciuszko Foundation and the American Bar Association (ABA), the Jagiellonian Law Society (JLS) held a panel presentation and discussion in May, now published on YouTube at KosciuszkoTV, on Operation L. Remarks included those of Judge Anisa Rasooli. In 2018, she was the first woman nominated to the Afghan Supreme Court, though her candidacy was narrowly defeated in the parliament.

Within the ABA, the International Law Section (ILS), Women's Interest Network, and International Human Rights Committee co-sponsored. I'm pleased to be affiliated with the JLS and ABA ILS.


Wednesday, August 24, 2022

Invasion of Ukraine marks six months; Russian propaganda flows despite court OK of EU media ban

#IStandWithUkraine
On July 27, the European Union (EU) General Court upheld a continental broadcast ban on Russia Today (RT).

The EU Council promulgated the ban in March 2022. The Council accused the Russian Federation of channeling propaganda through Russian-funded but purportedly "autonomous" RT in furtherance of a "strategy of destabilisation" of European countries by "gravely distorting and manipulating facts."

The regulation asserted that "propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions."  RT agents are allowed to continue reporting in the EU through research and interviews.

By "broadcast," the regulation is not talking only airwaves. The ban purports to apply across media outlets: "cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." 

I'm Team Ukraine, but the broadcast ban struck me as a curious development. It sets a troubling "kill the messenger" precedent and seems to conclude that the John Stuart Mill "truth will out" premise is hifalutin hooey.

I'm actually OK with that conclusion. When I teach free speech to students in tort, constitutional, or information law classes, I make a point of demonstrating the many flaws of marketplace theory in the real world. But closing the book on the theory as a matter of supranational regulation is an unsettling further step.

Similarly, it must be conceded that war propaganda is efficacious, notwithstanding its truth or falsity. Research and experience have confirmed that concession time and again since Edward Bernays published his classic treatment, Propaganda, in 1928. I read Bernays for a seminar in journalism school in the wake of the fall of the Berlin Wall. That study first interested me to the confounding problem of expressive liberties in wartime

In its July 27 judgment, the Grand Chamber of the General Court navigated these murky waters to conclude that the broadcast ban justifiably impinged on the freedom of expression. In the challenge by RT France, the Council adduced evidence to satisfy the court that RT was in fact a mouthpiece for Russian antagonism to European security. Conducting the necessity and proportionality analysis of European free speech law, long developed by the European Court of Human Rights, the general court concluded that the ban on RT appropriately furthered the twin aims of preserving order in the EU and abating the attack on Ukraine.

The court took pains to describe the RT ban consistently as temporary and to emphasize the context of Russian military aggression, thus signaling that the ruling is grounded heavily in extraordinary circumstances and has limited precedential value.

For therein lies the hazard of effectively suspending civil liberties in a time of exigency but undeclared war. Western EU ministers must be mindful that their critical populist adversaries in Hungary and Poland have restricted media freedom in the name of public order. Proceed down the slippery slope: Should we ban World Cup 2022 coverage by Qatar-funded Al Jazeera?

Characteristically, Russia answered the EU court ruling with a threat of retaliatory restrictions on western media in Russia. But on both sides, media bans might be so much posturing anyway.

RT.com via VPN based in Dublin
The actual efficacy of the ban is doubtful, if for no other reason than the internet's famous resilience to censorship. In a study published in July, the Institute for Strategic Dialogue found that RT content was still reaching European consumers through alternative domain names and mirror websites.

It might not be even that difficult to find RT. Using my Dublin-based VPN, I just now accessed RT.com directly and through a Google.ie search without impediment.

Today, August 24, marks six months since the invasion. The International Law Section of the American Bar Association (April) is organizing a social media campaign to maintain the visibility of the war in Ukraine. Lawyers are asked to post the Ukraine flag on LinkedIn and Twitter with the hashtag #IStandWithUkraine and tags @American Bar Association International Law Section and @Ukrainian Bar Association on LinkedIn and @ABAInternatl and @Association_UBA on Twitter.

Thursday, April 28, 2022

'Now NATO might join Ukraine,' experts opine

In Washington, D.C., the International Law Section of the American Bar Association receives a message from Ukraine. Attorney Michael Burke is at the lectern; Ambassador William B. Taylor is at the table. Photo by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to depicted video.
The war in Ukraine is not only about Ukraine, and Ukraine will prevail if the West expands military support.

Those were the top takeaways from experts at a panel of the American Bar Association International Law Section (ABA ILS) in Washington, D.C., today, April 28.

The panel at the Capital Hilton comprised William B. Taylor, U.S. ambassador to Ukraine from 2006 to 2009 and now vice president for Russia and Europe at the NGO U.S. Institute of Peace; Vladyslav Rashkovan, a board member of the International Monetary Fund and former governor of the Ukraine Central Bank; attorney Michael E. Burke of Arnall Golden Gregory, moderator; and, by pre-recorded message, an attorney in the Kyiv area.  The panelists spoke in their personal capacities, not as representatives of their organizations.

'This war is not new'

I withhold the name of the Kyiv attorney for security; he is a member of the ABA ILS.  As a man under age 60, he cannot leave Ukraine and sent his regrets with the message, recorded on Orthodox Easter, April 24.

Clad in a hoodie and standing before a nondescript wooded background, the Kyiv attorney described persistent air-raid sirens, especially at night, with rockets anticipated to strike "civil" targets all over Ukraine. He described the mentality of the resistance with knowledge that Ukrainian civilians have been killed, tortured, and raped by Russian soldiers.

"This war is not new for us," the attorney said. "It has been around for hundreds of years," hostilities boiling over only most recently in 2014 and 2022.

I was reminded of speaking to a Krakovian friend, a lawyer and long-ago student of mine, in March, earlier in the invasion. Like many Poles, he was planning to host Ukrainian refugees in Warsaw, where he lives now.  

"It's the Russians again," he said matter-of-factly.

The Kyiv attorney emphasized a recurring theme we hear from Ukrainian officials and commentators, that the war is not only about Ukraine. Rather, "Ukraine is just the first obstacle in the way of Russia," he said. If Russia is not stopped in Ukraine, "European kids and families will keep dying in their homes."

The attorney urged lawyers from around the world to reach out to their political leaders to emphasize the importance of supporting Ukraine, especially militarily.

"Please do your best to support Ukrainians," he concluded. "And keep praying for Ukraine and the brave Ukrainian army."

Ukraine will win, if ...

If western military aid to Ukraine persists and expands, Ambassador Taylor predicted, Ukraine will win the war.  Presently, he explained, Russia is "probing" eastern Ukraine for weakness and softening defenses with air and long-range artillery strikes, while "preparing for a big offensive."

Rashkovan echoed the characterization of conflict with Russia as enduring for "centuries." The February 24, 2022, invasion was "a shock, but not a surprise," he said.

Russia has coveted Ukraine since the 20-aughts, Rashkovan said. To Russia's frustration, every attempt to draw Ukraine closer had the effect of pushing it away.

According to Rashkovan, surprises did follow the invasion of Ukraine, but they were for Russian President Vladimir Putin and for the West.

Putin "believ[ed] his own propaganda," Rashkovan said, citing a recent piece in The Economist by Ian Bremmer. Putin thought "Ukrainians would be waiting with flowers."

Another surprise to Putin was that Ukrainian resistance proved to be sustainable, Rashkovan said.  In contrast, the Russian army proved "not so modern," "not prepared for 21st-century war," "not ready to fight in the streets, against drones and [civic] groups.  They are fighting [with] a strategy of the [19]80s."

Putin also miscalculated by giving a speech in February declaring interest only in the Ukrainian coast, immediately before Russia bombed targets nationwide, Rashkovan said.  The duplicity created "outrageous anger" and "unity" in Ukrainians and in the world, rather than the fear that Putin intended.

Surprises resulted for the West, as well, Rashkovan said. The West "finally understood" that conflict in eastern Ukraine, simmering since the 2014 invasion of Crimea, was about more than the Donbas region and more than just Ukraine.

"I don't want to say for Europe," because Europeans remained reluctant to give up business with Russia, Rashkovan said.  But now it has become clear that Putin stands against the western liberalism of the last half century and norms that it has generated: "globalization, humanism, ... multiculturalism, tolerance, and democracy."

"Ukraine is now on the front line of this fight," Rashkovan said. "Let's be frank.  Until recently, the West was not ready to fight for Ukraine. And Putin showed that he is ready to fight."

The defense of Ukraine should be instructive to the West, Taylor and Rashkovan both said, resulting in the joke, "Now NATO might join Ukraine."

But the joke is "not crazy," Taylor said.  Ukrainians "are showing how to fight, how to win this war."  Upon a Ukrainian victory, he opined, the West should guarantee Ukrainian security against future invasion, whether through NATO or another agreement binding in international law.

Stop saying 'off ramp'

I was pleased to hear a harder line from Ambassador Taylor than I hear from the U.S. leaders that Taylor no longer represents.  Evidently, I am not the only person tired of hearing commentators chatter about the need for an "off ramp" for Putin, a compromise, or my word, "appeasement."

"I am not interested in an off ramp," Taylor said. "Putin caused this problem" by invading a peaceful neighbor that posed no threat and made no provocation.

An "off ramp suggests that we should find something to help him save face," Taylor explained. "No, no.  He needs to find a way out."  When Putin realizes he is losing the so-called "second phase" of the war, if Western military aid does expand, Putin "will look for an off ramp, something to convince the Russian people that it was worth all this.  Good luck with that."

Taylor said he is not worried about Russian aggression against other countries, such as Moldova, as long as Ukraine prevails. Without control of the Ukrainian coast, Taylor opined, Putin "doesn't have the manpower ... to go all the way across the south."

And Russia will not use the nuclear option, Taylor said. "I don't think Putin is suicidal," nor "crazy." "[W]e have to be ready," he said, but "Washington sees no indication of an operational step toward that."

However, if western military aid is not expanded, and Russia does gain control of Ukraine, "then that would be a threat," Taylor said. Besides Moldova, Russian aggression would threaten Georgia, the Balkans, and, ultimately, NATO allies.

"This is not the last war in Europe" if Russia prevails, Rashkovan agreed. "Who knows about Sweden and Finland," countries that recently signaled their intentions to join NATO, "now under critic[ism] from Russia. Who knows about Poland."

Zelensky stars

Both Taylor and Rashkovan praised the leadership of President Volodymyr Zelensky as key in the defense of Ukraine.

Taylor was in Kyiv just three weeks before the invasion, he said, and he met with political opposition leaders, who were characteristically critical of Zelensky.  Upon the invasion of February 24, "that changed....  Zelensky has motivated and inspired leaders, parliaments, nations around the world."  Now, in the context of the war, opposition leaders line up "nearly 100%" in support of the president, Taylor said.

Famously an actor and comedian before entering politics, Zelensky was a sort of Stephen Colbert of Ukrainian "late night" fame.  (Colbert has "run" for the U.S. Presidency more than once, since 2008, in mixed satirical and activist capacities.)  A pledge to eradicate corruption saw Zelensky to a stunning 73% electoral victory in 2019.  When war broke out, Taylor said, it was Zelensky himself who gathered and energized the Ukrainian leadership.

"He understands the Ukrainian people because of his entertainment background," Taylor said. His audience is the electorate.  "It's that connection with the leader and the people that gives him the strength, the moral strength."

China watches and learns

Taylor commented also on the perspective of China.  Just before the invasion, at the Olympics, Beijing broadcast its allyship with Moscow. China has been conspicuously non-committal since.  It has not joined western efforts to arm Ukraine, but has refrained from speaking favorably of the invasion and has not moved to undermine western sanctions. In fact, Taylor said, many Chinese firms are respecting the sanctions.

China's strategy is pragmatic.  Before the invasion, China was the biggest foreign investor in Ukraine, Taylor explained. And Chinese economic planners have their eyes on the European market, "which dwarfs the size of the economy in Russia."

Moreover, the Chinese are studying Russia's exploits relative to the matter of Taiwan.  "President Xi is watching very carefully the response of the United States and NATO, putting sanctions on a central bank," Taylor said. "That probably opened some eyes in China: 'Can they do it to us?'"

And China is watching the military engagement on the ground, too, Taylor said. China might be wondering whether, like Russia, its army is not as strong as Beijing has calculated, and whether Taiwanese resistance to a takeover might be stronger than anticipated.

Lawyers and sanctions help

Both Taylor and Rashkovan told the ABA ILS audience that lawyers are important in the Ukraine conflict, now and in the future.  Lawyers play a role now in documenting and calculating infrastructure losses in Ukraine, Rashkovan said. Data are being fed to the World Bank in anticipation of a reparations bill that might someday issue to Russia.

Meanwhile, Rashkovan said, lawyers should be helping Ukrainian people and businesses to design "legal class action[s]" against Russian defendants.  "I don't know the practicalities," he said, "but we should deliberate this further."

Taylor said that American lawyers can support the investigation of war crimes notwithstanding U.S. non-ratification of the Rome Statute that created the International Criminal Court.  Lawyers can help, too, to strengthen sanctions, which must be made "more targeted and smarter," Rashkovan said.

To evade sanctions, "Russia will start looking for the back doors," Rashkovan said. Russia still imports western food through eastern European and central Asian allies; Rashkovan joked about "Belarusian parmesan," before Belarus, too, came under sanctions.

According to the Crimean play book, he said, Russians will take over businesses from fast food, such as McDonald's, to car manufacture and aerospace, "knowing the techniques" to keep them running. But Rashkovan predicted that "the capacity of Russia to produce something serious, high tech, will diminish substantially."

Acknowledging that not everyone sees sanctions against Russia as necessarily enduring as long as Putin's presidency, Taylor suggested that sanctions will outlast the war, "[b]ecause when they [Russia] lose, they will be back.

"They will not give up," Taylor said, at least not as long as Putin remains on his "almost mystical mission, his commitment to dominate Ukraine."

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).

Tuesday, May 19, 2020

First Amendment right of access to court records is alive and kicking in electronic era

Developments in the First Amendment right of access to court records were on the menu this afternoon for a continuing legal education program from the American Bar Association (ABA).

The First Amendment protects "the freedom of speech, or of the press," and the U.S. Supreme Court in most contexts has rejected the First Amendment as carving out an affirmative access doctrine.  Yet access to court proceedings and records is an exceptional and narrow area of First Amendment law that grew out of criminal defendants' trial rights in the 1970s and 1980s.  (Co-authors and I wrote about the First Amendment and related common law right of access to court records in the early days of electronic court record access policy.)

Lately there has been some litigation pushing to clarify, if not expand, the First Amendment right of access to court records.  Specifically, courts in two federal jurisdictions, the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of Virginia, have recognized a right of timely access to newly filed trial court complaints.

The public access problem arose as a corollary to the economic exigency that has constrained contemporary journalism.  When I graduated from journalism school, and triceratops roamed the earth, a good journalist on the court beat checked the dockets at the clerk's office at the end of every day.  But the luxury of one journalist-one beat is long a thing of the past, and now it's harder for the working journalist to keep close tabs on new developments at the courthouse.  In this atmosphere, some state court clerks—most definitely not all, our presenters hastened to clarify—took to withholding newly filed complaints from the public record, whether while pending for "processing," or, one might speculate, to deter coverage of sensitive subject matter long enough for news editors to lose interest.

Courthouse News Service (CNS) is a national media entity reporting on civil litigation in state and federal courts.  I reference CNS often myself, here on the blog and in teaching and research, especially for pretrial court coverage, which is hard to come by in the United States.  CNS pushed back against the delayed release of pleadings, suing successfully in civil rights under the principal federal civil rights statute, 42 U.S.C. § 1983.  CNS had to beat abstention in both jurisdictions, which it did, after a first appeal and remand in the Ninth Circuit.

Relying on the range of federal precedents supporting the principle that "access delayed is access denied," CNS substantially prevailed upon its second go in federal trial court in California.  That case was called Planet, and CNS also won on appeal in, and remand from, the Ninth Circuit in a case called Yamasaki.  Remarkably, the third CNS case, in federal court in Virginia, featured full-on discovery, experts, and motions practice on its way to a four-day bench trial and CNS win.  Questions of fact arose from the clerks' purported necessity for delay while pleadings were "processed."  The court in Virginia declined formally to follow Planet, favoring a tougher articulation of the requisite First Amendment scrutiny.

The take-away from all of the cases is that the First Amendment does attach to newly filed pleadings, under the Press-Enterprise II "experience and logic test"; that timely ("contemporaneous," which doesn't mean instant) access matters from a First Amendment perspective; and that delays in access must survive heightened constitutional scrutiny.

These are the access-to-pleadings cases that the ABA presenters discussed:

  • Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) (“Planet III”), aff'g in part & vacating in part Courthouse News Serv. v. Planet, 44 Media L. Rep. 2261, 2016 WL 4157210 (C.D. Cal. May 26, 2016).
  • Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020), remanding, for further proceedings consistent with Planet III, Courthouse News Serv. v. Yamasaki, 312 F. Supp. 3d (C.D. Cal. May 9, 2018).
  • Courthouse News Serv. v. Schaefer, ___ F. Supp. 3d ___, 2020 WL 863516 (E.D. Va. Feb. 21) (dkt. no. 102), appeal filed, No. 20-1386 (4th Cir. Apr. 2, 2020).

CLE presenters also discussed record access in the following cases.  I've added links to cases in trial court dispositions.
  • Brown v. Maxwell, 929 F.3d 41 (2d Cir 2019) (remanding for in camera document review in journalist bid to access records in case of sexual abuse victim's allegations against late financier Jeffrey Epstein).
  • In re New York Times, 799 Fed. Appx. 62 (2d Cir. 2020) (affirming in part and vacating in part sealing of two parts of transcript of guilty plea hearing in Foreign Corrupt Practices Act prosecution of former Goldman Sachs employee Timothy Leissner).
  • Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020) (secreting video depositions of non-party witnesses, their privacy interests overcoming access presumption, upon access bid by online blogger in case by former student at orthodox Jewish school against the school and principal, alleging the principal sexually molested him while he was a student).
  • Trump v. Deutshce Bank AG, 940 F.3d 146 (2d Cir. 2019) (denying access to taxpayer names as not "judicial documents," upon news organizations' motions to intervene and unseal unredacted letter filed by bank in appeal, in order to learn the redacted names of taxpayers whose income tax returns were in bank's possession, in case of bank resistance to subpoenas in House investigation of President's tax returns).
  • King & Spalding, LLP v. U.S. Dep’t of Health and Hum. Servs., No. 1:16-CV-01616, 2020 WL 1695081 (Apr. 7, 2020) (denying seal, but allowing withdrawal, of information about attorney fees filed with motion, rejecting firm's claim of need to protect competitive information).
  • United States v. Avenatti, No. 1:19-CR-00373, 2020 WL 70952 (S.D.N.Y. Jan. 6, 2020) (denying motion, filed by Government, defendant, and subpoena target, to seal records related to subpoena duces tecum issued on behalf of defendant on non-party in criminal proceeding).
  • VR Optics, LLC v. Peloton Interactive, Inc., No. 1:16-CV-06392, 2020 WL 1644204, at *10 (S.D.N.Y. Apr. 2, 2020) (dkt. no. 308, at 17-20) (denying, as moot, motions by both parties to seal trial court records in patent dispute).
  • Motion to Intervene and Unseal, Dawson v. Merck & Co., No. 1:12-cv-01876 (E.D.N.Y. filed Sept. 12, 2019, dkt. no. 121) (decision pending) (seeking unsealing and removal of redactions in court records in settled multi-district product liability litigation over alleged side effects of prescription drug, "Propecia," upon motion of news agency Reuters).

One indicator I found encouraging from an access advocate's perspective is the incidence of court rulings in favor of access even when both parties want to seal.

The ABA program was sponsored by the Forum on Communications Law.  The presenters were: