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

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:

Wednesday, November 20, 2019

Teaching and learning speech and advocacy: Is online as good?

The National Communication Association met in downtown Baltimore, Md.
(All photos by RJ Peltz-Steele CC BY-SA 4.0.)
UMass Law offers oral advocacy online. I was on the curriculum committee that approved a colleague's proposal for the offering. I was surprised. Oral skills online? Is nothing sacred?

I've used Zoom quite a bit: for class guests and snow make-ups. I took the university training to teach online courses in toto; I was uninspired by the shaky infrastructure and unproved methods, especially relative to the worthy rigors of legal education. At the same time, I like teaching the occasional online one-off, and online might work well for a seminar. The early miseries of teleconferencing (still the norm in the ABA) feel nothing like the real-time interactive experience offered by contemporary tools.

Anyway, I would not vote against a colleague’s well intentioned proposal. That would be unprofessional.

Well, when you don’t know, ask an expert. At the National Communication Association annual meeting in Baltimore on Saturday, experts in public speaking debated whether the communication discipline’s most popular basic course, Public Speaking, should be taught online.

Keohane and Broeckelman-Post
In the yes camp were Melissa Broeckelman-Post, George Mason University, and Jennifer A. Keohane, University of Baltimore. They structured their argument on three points: (1) we must teach for the 21st century; (2) public speaking can be taught online effectively; and (3) online classwork enhances access to higher education.

On the first score, they cited research showing that in 2018, the number of online first job interviews doubled, and more than half of professionals telecommute at least half the week. Hillary Clinton was the first candidate to announce for the Presidency online. And globalization is pushing demand for long-distance teamwork, having to surmount communication hurdles from the technical to the cultural.

Huddy and Morreale
On the second score, Broeckelman-Post and Keohane argued that speaking competencies can be achieved through online learning, as measured in student reports of positive experience, diminished anxiety, and increased confidence. The no side referenced research showing contrary results on anxiety and confidence. On rebuttal, the yes side said that the most recent research shows at least equal efficacy by these measures, and maybe somewhat better anxiety reduction with online.

On the third score, Broeckelman-Post and Keohane argued that educators' responsibility to ensure access to education demands online teaching. They cited research counting 74% of college students as “nontraditional,” including military, parents, disabled persons, commuters, and others who are financially independent. Also, dual enrollment in college coursework is on the rise, including more than 1.2 million high schoolers.

In the no camp—though in truth, this was in large measure devil’s advocacy—were Sherwyn P. Morreale, University of Colorado, Colorado Springs, and William P. Huddy, Metropolitan State University of Denver. They appealed more to qualitative than quantitative sources.

Morreale
Morreale cited three components of student communication competence (Spitzberg 2000), motivation, knowledge, and skills. Motivation is fueled by anxiety diminution and confidence enhancement, which (at least earlier) research showed were better achieved in the live company of a supportive community and instructor. Higher order learning is accomplished through discussion and reflection, which Morreale argued are accomplished more readily in the live presence of an instructor. And as to skills, Morreale posited that conventional public speaking skills are adaptable to online communication, but not necessarily vice versa. In later discussion, Morreale conceded that the no side made an apt point on the value of students’ acquisition of tech skills, such as speaking into a mic and looking into a camera, if besides conventional skills.

Morreale pointed also to the six core components of instructional communication competence (Beebe & Mottet 2009), immediacy, affinity-seeking, relational power, credibility, clarity and humor. Live communication epitomizes immediacy and better allows a speaker to exercise relational power, she argued. Credibility and clarity are achieved best without the intermediation of mics and speakers, and humor is more readily generated in person.

Huddy
Huddy made a compelling personal appeal. His work history includes ten years as a television anchor, and he described his process of video-recording and watching himself to study and enhance his communication looking into a camera lens—thereby to manage the camera’s limitations, becoming accustomed to missing what can only be achieved in person. “Eye contact is not just gestural or theatrical,” he said. “It’s my number one opportunity to see if what I am saying is getting across to you. There’s a young lady in the back there that is kind of smiling,” he observed, telling him that what he was saying was resonating with her.

Huddy described the cruciality of de-centering in public speaking (I missed the attribution), meaning putting yourself mentally in your audience's thinking, and evolving on the fly the main points that the audience wants to hear. Learning to do that with live visual cues has no equal of experience, he argued. Effective public speaking requires richness, authenticity, and warmth, he explained, and warmth only communicates in person. An audience member in the Q&A offered some pushback, observing that she experiences a kind of warmth with students online incidentally by seeing them in their home contexts—with nagging siblings, dogs, and other home pandemonium unfolding on screens' edges.

Thorpe, Keohane, Morreale, Huddy, and Broeckelman-Post
The audience voted in the end for who won the debate and, separately, whether to offer public speaking online. Yes took both honors, which probably says a lot about the future of higher education, communication and other fields. In truth, as indicated above, Morreale and Huddy took the hard no position for sake of debate and critical analysis. Morreale in fact eagerly teaches public speaking online. All agreed that the key is not whether to teach online, but how to do it well. I imagine that should be our take-away for legal education, too.

The session was moderated by Janice Thorpe, University of Colorado, Colorado Springs. Susan Ward, Delaware County Community College, offered insightful responsive commentary.