Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener 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 FOIA. Show all posts
Showing posts with label FOIA. Show all posts

Saturday, February 26, 2022

Judge Jackson Media Law, Torts Tour: From Big Meat 'COOL' to 'A Love of Food' and 'Everlasting Life'

[A revised version of this post is available to download as a paper on SSRN.]
The Hon. KBJ (Wikicago CC BY-SA 4.0)

Profiles of U.S. Circuit Judge Ketanji Brown Jackson have proliferated since her announcement as a leading contender for the U.S. Supreme Court seat vacated by Justice Breyer, and President Biden announced her nomination yesterday.

Judge Jackson has practiced in both criminal and civil environments, and in public and private sectors.  She focused in different practice roles on criminal law and appellate litigation, and she served on the federal bench at the trial and appellate levels.  So much of her work, and that which has garnered the most attention, for example in the excellent SCOTUSblog profile by Amy Howe, interests me as a citizen in general more than as an academic and media-law-and-torts aficionado.

Nevertheless, I compiled here cases of interest to me, which I found whilst poking around in her trial-court record on the U.S. District Court for the District of Columbia (D.D.C.).  You might not see these discussed elsewhere, but they might be of interest to comparative-bent, media-law types like me, if that's even a thing.  In my ordinary-joe capacity, I am not in step with Judge Jackson's inclinations in some other areas of law.  But any Supreme Court Justice, just like any political candidate, is going to be a mixed bag, especially in a compulsorily two-party system.

In the cases below, a decidedly unscientific sample, I like some of what I see, especially skeptical diligence in access-to-information cases, sound reasoning in intellectual property law, careful application of preemption doctrine in medical-product liability, and a couple of thought-provoking First Amendment entanglements.  I see a mixed record on venue for transnational cases, something I've been worrying about lately, but the outcomes are defensible as consistent with lousy U.S. law.


Main topics:
● Civil procedure/statute of limitations:
WMATA v. Ark Union Sta., Inc. (2017)
Copyright/music royalties: Alliance of Artists & Recording Cos. v. Gen. Motors Co. (2018)
Defamation, false light/actual malice: Zimmerman v. Al Jazeera Am., LLC (2017)
First Amendment/child pornography: United States v. Hillie (2018)
First Amendment/commercial speech, compelled speech: Am. Meat Inst. v. U.S. Dept. Agric. (2013)
FOIA/national security, law enforcement: Elec. Privacy Info. Ctr. v. U.S. Dept. Justice (2017)
FOIA/Vaughn index, trade secrets, deliberative process: McKinley v. FDIC (2017)
FOIA/deliberative process/personal privacy: Conservation Force v. Jewell (2014)
FSIA/CCFA, forum non conveniens: Azima v. RAK Invest. Auth. (2018)
FSIA/torture: Azadeh v. Iran (2018)
Insurance/settlement: Blackstone v. Brink (2014)
Product liability/causation, preemption, learned intermediary: Kubicki v. Medtronic (2018)
Trademark/infringement: Yah Kai World Wide Enter. v. Napper (2016)
Wrongful death/sovereign immunity, contributory negligence: Whiteru v. WMATA (2017)
Wrongful death, product liability/forum non conveniens: In re Air Crash ... So. Indian Ocean (2018)

Quirky pro se claims:
Defamation/litigation privilege/statute of limitations: Ray v. Olender (2013)
Copyright/infringement: Buchanan v. Sony Music Ent. (2020)
Copyright/pleading: Butler v. Cal. St. Disbursement Unit (2013)
Copyright/subject-matter jurisdiction: Miller v. Library of Congress (2018)
FTCA/FOIA, civil rights: Cofield v. United States (2014)
Legal profession/sovereign immunity, absolute immunity: Smith v. Scalia (2014)

And the case with the best name:
A Love of Food I v. Maoz Vegetarian USA (2014)


WMATA (D.C. Metro) (Max Pixel CC0)
Civil procedure/statute of limitations.  WMATA v. Ark Union Sta., Inc., 269 F. Supp. 3d 196 (D.D.C. 2017).  The transit authority of the District of Columbia alleged that negligent maintenance by the Union Station America Restaurant, defendants' enterprise, resulted in a burst sewer pipe that severely damaged the Metro Red Line in 2011.  Judge Jackson opened the opinion cleverly, with what could almost be a dad joke: "This is a case about whose interests the [WMATA] serves when it spends money to repair damaged transit infrastructure in the Metrorail system—a proverbial third rail of this region's politics."  (My emphasis.  How could I not?)

D.C. has a generous five-year statute of limitations, but even that time had run.  Determining that the corporate-body WMATA remained a creature of government for relevant purposes, evidenced by its operational subsidies—cf. WMATA, infra, in negligence/sovereign immunity—Judge Jackson applied "the common law nullum tempus doctrine, which dates back to the thirteenth century," to exempt WMATA, as sovereign, from the statute of limitations.  The court explained: "Although the nullum tempus doctrine originated as a 'prerogative of the Crown[,]' the doctrine's 'survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.' .... Specifically, 'the source of its continuing vitality ... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers'" (citations omitted).

Pixabay
Copyright/music royalties.  Alliance of Artists & Recording Cos. v. Gen. Motors Co., 306 F. Supp. 3d 422 (D.D.C. 2018).  Judge Jackson dismissed a trade-group-plaintiff claim against automakers that their in-car CD hard drives created digital music recordings (DMRs) within the meaning of the federal statute, the Audio Home Recording Act of 1992 (AHRA), entitling copyright holders to royalties.  The AHRA was intended by Congress to protect the music industry against the alarming ease of creating high-fidelity copies of digital music by requiring manufacturers, importers, and distributors to employ copy-control technology.  Though having earlier allowed the claim to proceed against other technical challenges under the AHRA, the court decided, with the benefit of the first phase of discovery, that the defendant automakers' devices were not digital audio recording devices within the meaning of the statute.  In a methodical analysis, Judge Jackson explained that the content of the hard drives was excluded from the statutory definition of a DMR because of the coordinate presence of play software and other data.  The court rejected industry's theory that the appropriate frame of analysis was a particular partition of the drive, where music code might be located more readily.  The D.C. Circuit affirmed, 947 F.3d 849 (2020).

Zimmerman
(All Pro Reels CC BY-SA 2.0)
Defamation, false light/actual malice.  Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257 (D.D.C. 2017).  Two professional baseball players, both called Ryan (a Zimmerman and a Howard), sued Al Jazeera America over a documentary, The Dark Side: Secrets of the Sports Dopers (2015), in which an interviewee linked the pair to performance-enhancing drugs.  The plaintiffs were clearly public figures, so actual malice was at issue.  In a thorough explication of the making of the film followed by a straightforward recitation of the media torts, Judge Jackson narrowed the plaintiffs' claims to allegations stated in the film, excluding liability for promotional content.  The court found it plausible, upon "contextual clues," that a reasonable viewer could attribute the interviewee's statements to the filmmakers: "The film weaves [the source's] statements into a broader narrative about doping in sports that the producers themselves have purportedly confirmed through their own investigation."  Judge Jackson then explicated the actual malice standard and its amped up, St. Amant, iteration of recklessness.  Critically, the plaintiffs alleged that the source had recanted his claims about the Ryans during a subsequent, yet pre-publication, interview, giving Al Jazeera serious cause to doubt the source's veracity, if not actual knowledge of falsity.

Naturally, this case might be of interest to Court watchers, given the present hubbub over the Sullivan actual malice standard.  I'm no fan, and I'll have more to say about that in the future.  Zimmerman hardly depicts a Judge Jackson ready to pitch in with Justices Thomas and Gorsuch to upend the status quo.  But she understands the standard and at least might be amenable to a semantically sincere construction of "reckless disregard."

First Amendment/child pornography.  United States v. Hillie, 289 F. Supp. 3d 188 (D.D.C. 2018).  Criminal cases are not usually my jam, but this one had a First Amendment angle.  Judge Jackson allowed conviction of a defendant for sexual exploitation of a minor and possession of images of a minor engaging in sexually explicit conduct.  On the facts as explicated by the court, that sure seems like it was the defendant's intent: "carefully placing and positioning the camera in hidden locations in J.A.A.'s bedroom and bathroom" and "succeed[ing] in capturing several extended images of J.A.A.'s exposed genitals."  Missing, though, was the express "lasciviousness" required by federal statutes, a fatal flaw for the prosecution, the D.C. Circuit ruled.  14 F.4th 677 (2021).  The defendant relied on statutes, not the First Amendment, but the D.C. Circuit referenced First Amendment case law extensively to support its interpretation of what Congress required.  Despite the substantial latitude to which the government is entitled to prosecute child pornography, beyond the legal constraints of outlawing obscenity as to adults, the appellate court concluded that Judge Jackson erred in permitting the jury to infer the defendant's lascivious objective.  One might expect that social conservatives would side with Judge Jackson on this case. 

Labeled French beef
(by Yuka for Open Food Facts CC BY-SA 3.0)
First Amendment/commercial speech, compelled speech.  Am. Meat Inst. v. U.S. Dept. Agric., 968 F. Supp. 2d 38 (D.D.C. 2013).  This must have been a grilling initiation to the federal bench for Judge Jackson.  A meat industry trade association challenged "country of origin labeling" regulations (truly, "the COOL Rule") promulgated by the Department of Agriculture, on, as one might expect from Big Meat, any legal theory that might stick to the cast iron: namely, the statutory authority of the Agricultural Marketing Act, promulgation under the Administrative Procedure Act, and the First Amendment.  The first two make my eyes glaze over; it's the First Amendment that grabbed me.  Meat and the First Amendment are, of course, long-time frenemies, going back to the heyday of The Jungle, and on through the secret grocery workers of journalism ethics fame.  Then there was the whole pink slime era, and animal-welfare activists came trespassing through to take pictures.  Oh how we laughed until we cried.

Anyway, in this case, Judge Jackson capably explicated the niche case law of compelled commercial speech and charted the fine if squiggly line separating free speech and business regulation.  The risk of deception was more than merely speculative here, she opined, and consumers were demonstrably confused.  Industry mistakenly claimed a burden on its pocketbook, rather than its speech rights, Judge Jackson admonished.  The COOL Rule was reasonable and hardly burdensome for its expectation of truthful and uncontroversial disclosure.  Preliminary injunction was denied.

Big Meat was not easily deterred; the case went for a rodeo ride the following year.  The D.C. Circuit affirmed, 746 F.3d 1065 (Mar. 28, 2014), vacated upon granting rehearing en banc, No. 13-5281 (Apr. 4, 2014), and then reinstated affirmance (July 29, 2014).

U.S. Defense Department image (C)
FOIA/national security, law enforcement.  Elec. Privacy Info. Ctr. v. U.S. DOJ, 296 F. Supp. 3d 109 (2017).  Privacy advocate EPIC sued DOJ under the federal Freedom of Information Act (FOIA) to learn more about past wiretap spying under the post-9/11 Foreign Intelligence Surveillance Act.  EPIC was especially keen to see how the government had justified surveillance requests it set before the famously amenable Foreign Intelligence Surveillance Court (FISC).  Namely, EPIC sought: "(1) Westlaw printouts that were attached to a certain brief that the government submitted to the [FISC], and (2) portions of certain reports that DOJ issued to Congress, consisting of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of process improvements."  DOJ produced a Vaughn index.  Ex parte and in camera, Judge Jackson reviewed the materials and adjudged them properly withheld under exemptions 1 (national security as to the congressional reports), and 3 and 7(E) (national security statutes and law enforcement techniques, as to everything else), with some nitpicks as to redactions and notations.  I'm sure EPIC did not care for the result, but the transparency problem seems to be a statutory one.  Judge Jackson did a pretty deep dive on the docs.

FOIA/Vaughn index, trade secrets, deliberative process.  McKinley v. FDIC, 268 F. Supp. 3d 234 (D.D.C. 2017), then No. 1:15-cv-1764 (D.D.C. Sept. 30, 2018).  Judicial Watch, per experienced FOIA-requester attorney Michael Bekesha, represented a plaintiff against the FDIC.  In the reported opinion in 2017, the court compelled the FDIC to produce a Vaughn index. The Judicial Watch plaintiff was investigating FDIC placement of Citibank into receivership in 2008 and 2009.  The FDIC sought to protect 12 documents as trade secrets and eight documents as deliberative process.  The court faulted the FDIC for failing to support either claim of exemption with any contextual explanation, including the nature of its decision-making authority on the latter claim.

I note that Judge Jackson's reasoning on the trade-secret analysis might have been undermined subsequently by the Supreme Court's industry-deferential ruling on exemption 4 in Food Marketing Inst. v. Argus Leader Media (U.S. 2019).  (I signed on to an amicus on the losing side in FMI.)  In an earlier FOIA case, Government Accountability Project v. FDA, 206 F. Supp. 3d 420 (D.D.C. 2016), Judge Jackson similarly relied on pre-FMI doctrine to reject, as unduly conclusory, FDA resistance, at the behest of a pharma trade association, to production of records on antimicrobial medications.

Vaughn index in hand on remand, plaintiff persisted in challenging the adequacy of the FDIC search and "whether withheld information 'has already been made public through an official and documented disclosure.'"  Judge Jackson rejected both claims in a short opinion in 2018.  She found the first merely speculative.  As to the second, the plaintiff "argued that the FDIC's withholdings were improper because the requested information was 'officially' acknowledged by Former FDIC Chairman Sheila Bair in the book Bull by the Horns—a book that Bair published after leaving office."  Judge Jackson held that "that contention, too, must be rejected. A book or other material that a former government official publishes in her personal capacity does not qualify as an 'official acknowledgment' of the information contained therein for the purpose of FOIA."

Bison trophy at Beaty Biodiversity Museum, Vancouver, B.C.
(by Nikkimaria CC BY-SA 3.0)
FOIA/deliberative process, personal privacy.  Conservation Force v. Jewell, 66 F. Supp. 3d 46 (D.D.C. 2014).   A nonprofit foundation that promotes big-game hunting sued U.S. Fish and Wildlife, in the Department of Interior, under the FOIA to obtain records related to denials of permits that would allow the import into the United States of hunting trophies of Canadian bison.  For the record, I'm fine with denying those permits, and I could be persuaded to block importation of the hunters, too.  Nevertheless, transparency....  

Judge Jackson authored a workmanlike exploration of various exemption theories asserted by Interior: accepting attorney-client privilege (exemption 5) and personal-information exemption (6); rejecting deliberative-process exemption, crime-fraud exception to attorney-client privilege, and work product privilege (all exemption 5).  She cited House reports to bolster her interpretations of what exemptions 5 and 6 require.  In a pattern that became familiar, or maybe just speaks to agency neglect, she faulted Interior for a conclusory ("woefully short") Vaughn index that failed to support exemption.  As to exemption 6, which has been aggressively enlarged by federal courts in furtherance of the privacy rage, Judge Jackson accepted Interior's redaction of employee personal information as more or less immaterial to the sought-after accountability.  The D.C. Circuit affirmed summarily in No. 15-5131 (Dec. 4, 2015).

FSIA/CFAA; forum non conveniens.  Azima v. RAK Invest. Auth., 305 F. Supp. 3d 149 (D.D.C. 2018).  Judge Jackson was reversed in this one, 926 F.3d 870 (D.C. Cir. 2019), but I prefer her analysis.  Under the Computer Fraud and Abuse Act (CFAA) and for common law conversion and unfair competition, plaintiff, a Kansas City, Mo., businessman, sued a business partner, a public investment authority (RAKIA) of the United Arab Emirates (UAE, specifically the Emirate of Ras Al Khaimah), after their business relationship soured, alleging that RAKIA "commissioned the repeated surreptitious hacking of his personal and business laptops ... and then published disparaging material that was illicitly gleaned from Azima's computers...."  RAKIA sought dismissal under the Foreign Sovereign Immunities Act (FSIA) on grounds of sovereign immunity, under a contractual forum selection clause, and, relatedly, under the common law venue doctrine of forum non conveniens.

Judge Jackson rejected all three grounds.  The plaintiff plausibly portrayed RAKIA, an investor rather than governing entity, as a commercial actor and alleged tortfeasor, bringing into play the FSIA commercial and tort exceptions.  As alleged, the hacking would have inserted malware into the plaintiff's computer systems, even if the insertion occurred abroad, so the locus of alleged tortious injury was Kansas City, bolstering the FSIA analysis.  The forum selection clause did not pertain, Judge Jackson reasoned, because it was articulated in the parties' contract for a prior commercial venture; the contract hardly covered subsequent hacking.

As to venue, Judge Jackson faulted RAKIA for failing to meet its "heavy burden" to show that Azima would get a fair shake in RAKIA's preferred venue of London, where RAKIA might have hoped for a more favorable outcome on immunity.  I like that analysis—but cf. infra, re wrongful death/forum non conveniens.  My comparative law class just read Professor Vivian Curran's masterful recent work on foreign law in U.S. courts, in which she convincingly demonstrated U.S. federal judges' penchant to over-employ forum non conveniens and thus shirk their responsibility to adjudicate.  

Perhaps proving Prof. Curran's thesis, the D.C. Circuit disagreed, holding that the forum selection clause burdened the plaintiff with having to show why London would not work as an appropriate venue, else face dismissal for forum non conveniens.  I would be remiss not to mention also: Prof. Curran further faulted the courts for lazy reliance on partisan evidence (my words) when foreign law is concerned, and both Judge Jackson and the D.C. Circuit declared a lack of any responsibility to investigate themselves the adequacy of London as a forum.

FSIA/torture.  Azadeh v. Iran, 318 F. Supp. 3d 90 (D.D.C. 2018).  Plaintiff was an inmate of an Iranian jail and alleged torture and intentional torts at the hands of the republic.  A U.S. court ruling in such a matter is principally symbolic.  Iran will not respond; a plaintiff might hope to recover against a U.S. government claim on frozen assets.  Accordingly, in this case, a magistrate judge recommended entering default judgment in favor of the plaintiff.  I have here omitted cases in which Judge Jackson adopted in toto a magistrate's report; in this case, she did not.

Relying on a manual of the U.S. district courts, the plaintiff had effected service on the state of Iran erroneously, under the wrong order of process under the FSIA.  Judge Jackson wrote: "Judges are sometimes called upon to set aside heart-wrenching and terrible facts about a claimant's treatment at the hands of a defendant and enforce seemingly draconian, technical mandates of law. This is an especially difficult duty when the machinery of the judicial system itself appears to have played a role in the claimant's mistaken view of the applicable legal requirements. The somber circumstances of the instant case present one such scenario...."  The court put the default judgment on hold and gave the plaintiff a second crack at proper service.  Judge Jackson subsequently entered default judgment against Iran, in the sum of $36,411,244, in No. 1:16-cv-1467 (D.D.C. Sept. 5, 2018).  Reproduced therein, the magistrate's report detailed the plaintiff's ordeal.

Insurance/settlement.  Blackstone v. Brink, 63 F. Supp. 3d 68 (D.D.C. 2014) (D.C. law).  In an insurance dispute arising from the alleged wrongful death of a pedestrian, plaintiffs and their attorney apparently changed position on whether to settle with defendant-driver's insurer, State Farm, for the defendant's $100,000 policy limit.  After a telephone conversation, State Farm sent a check and a release form to the plaintiffs' attorney.  The check crossed in the mail with a letter from the attorney rejecting the offer.  Applying D.C. law, Judge Jackson determined that the parties had reached an enforceable agreement on the telephone, evidenced by the specificity of the attorney's instructions on how and where to send the check.  The court wrote of the parties' competing narratives: "On this record, it is far more plausible that [plaintiff counsel] accepted [State Farm's] offer on behalf of his clients [plaintiffs], intended that it be final and binding, and later had misgivings about his earlier decision to accept. Unfortunately for Plaintiffs, courts have long held that such buyer's remorse does not vitiate a demonstrated initial intent to be bound by the settlement agreement" (original emphasis).

A Medtronic product (Alan Levine CC BY 2.0)
Product liability/causation, preemption, learned intermediary.  Kubicki v. Medtronic, 293 F. Supp. 3d 129 (D.D.C. 2018) (D.C. law).  Parents of a diabetic consumer who suffered traumatic brain injury as a result of low blood-sugar levels sued the manufacturers of an insulin pump, alleging various theories of product liability.  Judge Jackson threw out some claims, against one manufacturer and upon one theory, as time barred, because plaintiffs had added them to the complaint too late for the District's three-year statute of limitations.  Judge Jackson navigated the tricky shoals of preemption doctrine to find some but not all liability theories expressly preempted, and the remainder not impliedly preempted, by FDA medical-device approval.  A sliver of remaining plaintiff theories survived summary judgment for presenting triable questions of fact on causation and on the learned intermediary doctrine relative to alleged failure to warn.

Trademark/infringement.  Yah Kai World Wide Enter. v. Napper, 195 F. Supp. 3d 287 (D.D.C. 2016).  The defendant ran the Everlasting Life Restaurant & Lounge as an enterprise of the African Hebrew Israelite community, "who claim to be descendants of biblical Israelites and who follow a strict vegan diet," until their relationship soured.  The plaintiff-community sued when the defendant persisted in doing business as "Everlasting Life," which a community leader had registered as a service mark (pictured).  Trial did not go well for the defense; Judge Jackson wrote that the defendant "displayed some signs of dissembling, such as the evasive nature of his answers with respect to the existence of a purportedly independent and unincorporated food business that he claimed to have created by himself in his home garage prior to the Community's formation of its restaurant businesses."  The court found likelihood of confusion and, accordingly, infringement.  If only defendant had partnered with Big Meat to serve litigious hungry hunters returning from Canada.

Wrongful death/sovereign immunity, contributory negligence.  Whiteru v. WMATA, 258 F. Supp. 3d 175 (2017).  This time the WMATA, the D.C. transit authority, was a negligent defendant rather than plaintiff—cf. WMATA, supra, in civil procedure/statute of limitations—and this time, the authority was ruled not sovereign for purposes of immunity.  In what was essentially a slip-and-fall, the plaintiff-decedent's estate and parents blamed the WMATA for not discovering the decedent—a lawyer, by the way—injured on a train platform, in time to provide life-saving medical treatment.  A creature of state compact and D.C. statute, the WMATA enjoys an immunity analogous to that of federal defendants under the Federal Tort Claims Act (FTCA).  Borrowing the FTCA rule of immunity for discretionary governmental functions, which often presents a frame-of-reference problem in its granular application, Judge Jackson rejected the WMATA theory that officials' conduct was discretionary.  Rather, properly, I think, the court accepted the plaintiff's framing of the case as alleging unreasonable comportment with the WMATA standard operating procedures for platform inspection.

At that time in 2017, factual questions in the case precluded summary judgment.  However, in 2020, Judge Jackson awarded the WMATA summary judgment upon the plaintiff's contributory negligence.  480 F. Supp. 3d 185.  The District is not a comparative fault jurisdiction.  The plaintiff's heavy intoxication when he fell was undisputed, and, Judge Jackson opined, video evidence plainly showed that the plaintiff fell because he over-relied on a low wall for support.  Just this month, the D.C. Circuit reversed and remanded,  ___ F.4th ___ (Feb. 11, 2022), holding that under D.C. law for common-carrier liability, contributory negligence is not the complete defense that it usually is in negligence in the District.

Suggested search area for MH370 debris
(Andrew Heneen CC BY 4.0)
Wrongful death, product liability/forum non conveniens.  In re Air Crash Over the Southern Indian Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018) (multi-district litigation).  This case marks a tragic disappointment.  Judge Jackson dismissed for improper venue, forum non conveniens, the claims of families of passengers of missing airliner MH370 against defendants including Malaysia Airlines and Boeing.  The claims arose under the Montreal Convention on international air carriage, common law wrongful death, and product liability.  The thrust of the problem is that what happened to MH370, including the final resting place of the fuselage and an understanding of what went wrong, remains a mystery, and even less was known in 2018.  My money is on pilot hijacking, by the way; read more in the definitive account to date by the incomparable William Langewiesche for The Atlantic. 

Judge Jackson opined:

All told, the Montreal Convention cases in this MDL involve only six U.S. citizens with a direct connection to the Flight MH370 tragedy, as either plaintiffs or decedents. Among the hundreds of passengers on that flight, only three were citizens of the United States, and while the United States undoubtedly has a strong public interest in the claims involving their deaths, its interest pales in comparison to Malaysia's interest in litigating these claims. Malaysia's public interest includes not only an interest in the untimely deaths of the Malaysian pilot and crew, but also an interest in determining precisely what happened to Flight MH370, given that a Malaysian airline owned, operated, and maintained the aircraft; the flight took off from an airport in Malaysia for a destination outside the United States; and it disappeared from radar when Malaysian air traffic controllers were handing off the flight. And Malaysian authorities made substantial investments of time and resources in the wake of this disaster: Malaysia conducted extensive civil and criminal investigations, and changes in Malaysian law led to the creation of a new national Malaysian airline. It is Malaysia's strong interest in the events that give rise to the claims at issue here that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans onboard Flight MH370. 

I really want to lash out against this reasoning.  But probably it would be like when I was a little kid fed up with allergy-testing shots and kicked my doctor.  Despite my reservations about forum non conveniens, see Prof. Curran, supra, I admit that my frustration stems from doubt that the case could be fairly prosecuted in Malaysia, even if the plane is found, rather than a confidence that the United States is a logical venue.  It might not even matter, as the Montreal Convention probably would curb recovery even in U.S. courts.  Insofar as I have any legitimate gripe, it's in part that forum non conveniens is just a witless rule out of step with a globalized world, and in part that Judge Jackson should have done some independent investigation of the adequacy of Malaysia as a forum.

The aftermath of the MH370 disappearance revealed concerning deficits in transparency, and, thus, potentially in accountability, in the Malaysian investigative process.  And while I don't think Boeing is to blame, having watched Downfall: The Case Against Boeing (2022) on Netflix just last weekend—Langewiesche wrote about the 737 MAX for The New York Times—leaves me distrustful.  Indeed, however relying upon precedent, Judge Jackson declined MH370 plaintiffs' last-ditch demand that, at least, Boeing be compelled to promise to abide by U.S. discovery in connection with any subsequent litigation abroad.

The D.C. Circuit affirmed, 946 F.3d 607, and the Supreme Court denied cert., 141 S. Ct. 451, in 2020.

⚖️

Here are some quirky pro se claims, just to stimulate the noggin.

Defamation/litigation privilege/statute of limitations.  Ray v. Olender, No. 13-1834 (D.D.C. Nov. 21, 2013).  Judge Jackson dismissed an odd $5m pro se defamation claim against an attorney, apparently based on a 1965 suit for copyright infringement and counter-suit.  She held the claim barred by the one-year D.C. statute of limitations and, anyway, based on statements in pleadings, protected by the litigation privilege.

Copyright/infringement.  Buchanan v. Sony Music Ent., No. 18-cv-3028 (D.D.C. May 26, 2020).  In a wide-ranging complaint, pro se plaintiff accused defendant music producers of stealing from songs he submitted for consideration.  Dismissed, because three of four songs were not registered; plaintiff could not show that any producer actually received a copy of the fourth song demo tape; and plaintiff anyway failed to allege substantial similarity, beyond allegation of "steal[ing]," between defendants' hits and the plaintiff's "I Gos Ta Roll." 

Copyright/pleading.  Butler v. Cal. St. Disbursement Unit, No. 13-1684 (D.D.C. Oct. 23, 2013).  Pro se plaintiff accused the state of copyright infringement for using his name in all capital letters.  Dismissed for failure to plead adequately.  BUTLER.

Copyright/subject-matter jurisdiction.  Miller v. Library of Congress, No. 1:18-cv-02144 (D.D.C. Nov. 5, 2018).  Judge Jackson dismissed for lack of subject matter jurisdiction a $100m pro se copyright infringement claim by an author of "a book of songs" who alleged that the Library of Congress stole the book and allowed it to be used by others.  Held, he should have filed in the Federal Claims Court.  I'd return the book, but the fines....

FTCA/FOIA, civil rights.  Cofield v. United States, 64 F. Supp. 3d 206 (D.D.C. 2014).  A Maryland prisoner, pro se plaintiff sought billions in damages against ICANN and the Obama Administration for improper FOIA denials and race discrimination.  On the latter count, the plaintiff essentially accused the government of establishing a business monopoly in ICANN that leaves African-American persons "intentionally omitted, to be left behind when it comes to technology ... by design[.]"  An intriguing idea, but not the best spokesperson.  The court dismissed for sovereign immunity, as the Federal Tort Claims Act (FTCA) authorizes neither FOIA complaints, which do not entitle a plaintiff to tort damages, nor constitutional claims.

Defendant-Justice Scalia (Shawn CC BY-NC 2.0)
Legal profession/sovereign immunity, absolute immunity.  Smith v. Scalia, 44 F. Supp. 3d 28 (D.D.C. 2014).  Yup, that Scalia.  The pro se plaintiff was denied admission to the Colorado Bar after "refus[ing] to submit to a mental status examination," and then sued officials, including judges who denied his appeals.  Even the International Covenant on Civil and Political Rights, which rated among plaintiff's theories, cannot overcome federal sovereign and judicial absolute immunities, Judge Jackson held.  She declined to order Rule 11 sanctions, but did hit the frequent-filing plaintiff with a pre-filing injunction, going forward.
Maoz Falafel, Paris
(Björn Söderqvist CC BY-SA 2.0)

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Finally, I don't really care what happened in this case; I just love its name: A Love of Food I v. Maoz Vegetarian USA (D.D.C. 2014).  Plaintiff Love of Food was "a franchise of Maoz's vegetarian quick service restaurant" in D.C.  When the business failed, Love of Food blamed Maoz.  Maoz had failed to register its offering prospectus properly with the state of Maryland, but, Judge Jackson held, that omission did not give Love of Food standing.  The court issued mixed results on the, uh, meatier claims of misrepresentation, finding a material dispute of fact over the veracity of startup estimates.

Just wait 'til Big Meat hears about this.

I gos ta roll.

Tuesday, October 26, 2021

State constitutional law offers untapped potential to bolster advocacy in freedom of information

The Vermont Supreme Court relied on the 1777 Vermont
Constitution, as amended in 1786, to support access to
information under the public records act (PRA, or FOIA)
in 2021.
In the summer, two third-year law students published in the Journal of Civic Information a superb investigation highlighting the untapped potential of state constitutional law as a tool in access advocacy in the United States.

Among the many ways in which the U.S. Constitution shows its age is its lack of a right of access to information (ATI). ATI has become a recognized human rights norm in modern constitutions and regional instruments around the world, while the concept in U.S. federal law remains relegated to statute: the Freedom of Information Act (FOIA), which once was landmark yet today suffers from significant dysfunction. For my own part, I have examined the significance of  this divergence relative to the problem of privatization in the U.S. FOIA and the South African Promotion of Access to Public Information Act (PAIA).  I spoke last month to the U.S. FOIA Advisory Committee re same (HT).

The constitutional lag is not characteristic of all U.S. states.  By the count of University of Florida Levin College of Law students Jessica Terkovich and Aryeh Frank, ATI is recognized in the constitutions of seven states: California, Florida, Illinois, Louisiana, Montana, New Hampshire, and North Dakota.  In their article, Terkovich and Frank examined case law in these states to see how the constitutional provisions are implicated.

The researchers found that the constitutional provisions were not realizing outcomes in ATI litigation in these states all that different from outcomes that might be reached under the states' statutory expressions of ATI.  Rather than concluding that the constitutional provisions are inconsequential, however, Terkovich and Frank concluded from the evidence that constitutional ATI is under-used as a source of law to bolster access advocacy.

Their reasoning resonates with me.  When I was a newly hatched academic in the 1990s, I was enchanted by an examination copy of a casebook on state constitutional law.  (Lexis and West have current offerings.)  I was never able to swing the course offering, but the subject informed my teaching and research.  Accordingly, I've always encouraged students to consider state constitutional approaches to legal problems.

Often, state high courts recite by rote the default position that they interpret state constitutional rights as merely co-extensive with federal rights; the pairings are construed in pari materia.  The proposition that the free-press-and-speech provision of Article XVI of the Massachusetts Declaration of Rights is co-extensive with the First Amendment to the U.S. Constitution was reiterated recently in the scrap over a Boston flagpole now bound for the U.S. Supreme Court.

Courts might reflexively choose the easier path, shrugging off the burden of state constitutional interpretation.  But they can readily embrace state constitutionalism when it suits their needs.  The Supreme Court of Arkansas long construed the 1874 state constitutional guarantee against unreasonable search and seizure in pari materia with the federal Fourth Amendment.  Until they didn't.  When the U.S. Supreme Court bounced back a state high court disposition as erroneous under the Fourth Amendment, the nonetheless jurisprudentially conservative Arkansas court, in 2002, suddenly discovered distinct meaning in the state constitution to support its earlier conclusion in the defendant's favor.

That result could not have happened if criminal defense lawyer John Wesley Hall had not made the argument.  And that possibility, that the state constitution could mark the difference between liberty and imprisonment, was exactly why Hall included the Hail Mary claim despite longstanding precedent on the in pari materia approach, he once told me.

The potential for potency in a state constitutional claim is all the greater when the right at issue is expressed in the state constitution, but not in the federal Constitution, as is the case for ATI.  And the potential is not limited to the seven states that Terkovich and Frank analyzed.  Just in September, the Vermont Supreme Court extended its ATI law, the Public Records Act (PRA), to shine sunlight on the records of a private contractor responsible for healthcare in state prisons.

Vermont is not on Terkovich and Frank's list of seven.  Nevertheless, in Human Rights Defense Center v. Correct Care Solutions LLC, the Vermont Supreme Court relied on exhortative language—previously held unenforceable by private cause of action—dating to 1786 in the state declaration of rights: "That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them."

The article is Jessica Terkovich and Aryeh Frank, Constitutionalizing Access: How Courts Weigh State Constitutional Claims in Open-Government Litigation, 3(1) J. Civic Info. 1 (2021).

Monday, October 25, 2021

Incarcerated persons have access to information in Massachusetts law, court confirms, but not in all states

Image by Ichigo121212 from Pixabay
A man imprisoned for murder has a right of access to public records no less than anyone else, the Massachusetts Appeals Court held in the summer.

Nine years ago, Adam Bradley was co-perpetrator of a home invasion in Billerica, Massachusetts, northwest of Boston, in which 22-year-old resident Quintin Koehler was shot and killed.  The crime was tied to the Bloods gang, according to The Boston Globe.  In 2017, at age 32, Bradley was convicted of first-degree murder and sentenced to a life term.

Lately, Bradley has used the Massachusetts Public Records Law (PRL, or FOIA) to investigate his conviction by requesting police records.  He alleged in a lawsuit that the State Police records access officer (RAO) failed to respond to multiple PRL requests.

In court, the RAO resisted production under the PRL on two grounds, (1) the ongoing investigation exemption of the PRL and (2) the parallel availability of records to Bradley in criminal discovery.

The Appeals Court soundly rejected both state arguments.  On the first ground, RAO overreached by declaring the entirety of the case file within the investigation exemption.  On the second ground, the PRL operates independently of parallel access in criminal process, the court held.  The RAO anyway owed Bradley a response asserting grounds for non-production.  The state public record supervisor twice ordered the RAO to respond.

The court holding accords with state freedom-of-information norms; the most noteworthy point of the case is that an appeal was required.  As in other states' FOIA exemptions for ongoing investigations, the Massachusetts PRL requires record-by-record review, redaction for partial production when possible, and, if necessary, in camera inspection by the trial court in a legal challenge.

The problem of parallel access is somewhat more vexing, though still should not have confounded the RAO.  Some states expressly exclude active litigants from FOIA uses that might subvert judicial procedure.  But such exclusions, which are far from universal, typically do not bar post-conviction access in criminal matters, even with ongoing appeals.  The RAO in the instant case relied on regulatory language that faintly suggested discovery exclusivity, and the court properly dispelled that theory.

Parallel access questions are thornier when there are state regulatory mechanisms in play that arguably supersede state FOIA as a matter of legislative intent, especially in the area of business regulation.  For example, a statutory framework for state contracting might regulate disclosure and non-disclosure of records maintained by the contractor or submitted to the state, arguably superseding FOIA access.  Even then, the rule of statutory construction that FOIA access is to be construed liberally and FOIA exemptions to be construed narrowly usually makes FOIA a trump card.  Bradley's case presented no such wrinkle.

The case is noteworthy also for a rule that is not at play.  Massachusetts is not one of the states that has limited or simply disallowed FOIA use by prisoners.

The Arkansas Department of Corrections (DOC) lobbied successfully for an amendment to the Arkansas FOIA in 2003 to exclude incarcerated felons from the state definition of "citizen."  Access advocates, including me, managed at that time to negotiate the exclusion down to only DOC records and pro se requests, allowing attorney-representatives to make requests.  Eight years later, the exemption was amended to eliminate the DOC limitation.

It was difficult to advocate for prisoner access.  Incarcerated felons are not a popular constituency and don't vote.  And to be fair to state officials, many dilatory and hardly comprehensible requests emanate from prisons and tie up public resources with no clear public benefit.  At the same time, of course, persons deprived of liberty are susceptible to human rights abuses for which accountability is notoriously elusive.  Michigan public radio in 2016 explored the problem of prisoner civil rights in the absence of access to information in that state's law.

The Massachusetts case is Bradley v. Records Access Officer, No. 20-P-419 (Mass. App. Ct. 2021).  Justice Gregory I. Massing authored the opinion for a unanimous panel also comprising Justices Henry and Ditkoff.  Before appointment to the bench in 2014, Justice Massing served as executive director of the Rappaport Center for Law and Public Service, and previously as general counsel for the state's Executive Office of Public Safety and Security.

Thursday, October 7, 2021

RIP Russ Kick, eccentric FOIA champion

With images obtained under the federal FOIA, Russ Kick's "Memory Hole"
catalyzed conversation on the Iraq war. Now archived at the Library of Congress.
The transparency community lost an eccentric hero in September: Russ Kick died at his home in Tucson, Arizona, at age 52.

Kick's passing has been reported in many forums, and he was well remembered by The Washington Post and Seven Stories Press last week.  Nevertheless, I feel bound to add my own recognition of the loss.  A self-described "rogue transparency activist," Kick was a legend in the access community.  I knew him only through email exchanges.  I remember him as consistently eager and obliging at the prospect of rallying a recruit to any one of his many causes.

I'm sorry that the Post obit, by Harrison Smith, is paywalled, because it's a thorough and deserved tribute to a remarkable person who embodied the term "citizen-activist" long before it was fashionable.  Kick was a "FOIA frequent flier" who used the "spear" of access law, as Senator Patrick Leahy recently described the federal FOIA, to investigate the many causes that stirred him, from chemical warfare to animal welfare.

Kick had some real wins, too.  His 2004 publication of photos of coffins returning from the Iraq war stimulated vital public discussions about access, privacy, and, of course most importantly, the war itself.  The Defense Department said the photos were released mistakenly.  Vibrant discussions in my FOI class were fueled by those photos and by other content that Kick collected at his Memory Hole website (archived).  Kick's many and varied collection of FOIA prizes persists, for the time being, at The Memory Hole 2 and its "sister site," AltGov2.

Kick edited "The Graphic Canon."
I don't want to be too narrow in my recollection, nor to whitewash Kick's sometimes bawdy tastes and conspiracy-minded inclinations.  His eclectic libraries of content rescued from digital deletion ranged beyond government records to, as the Post summarized, "classic literature, erotica, food and ancient meditation practices."  His literary talents generated a bibliography of the intriguing and bizarre, including a "disinformation" series that touted conspiratorial revelations on governments and sex.  Meanwhile, he edited stunningly artful representations of classic literature in graphic novelizations.

It would be easy to write off Russ Kick as a quaint sort of crackpot.  The Post quoted Kick aptly describing himself: "'I can't focus completely on any one thing for too long,' he wrote in an online biography. 'My personal brand is a mess.'"

Yet with such volume of productivity in so many veins, with real impact that moved the needle to put the demos back into democracy, there was undeniably genius in the madness.  Russ Kick left the world better off than he found it for what he contributed.  Any of us should be so blessed to have the same said of us when we're gone.

Monday, September 27, 2021

FOIA requesters need protection against retaliation; in egregious case, court allows First Amendment theory

Intersection of state highways 42 & 61 in Conyngham Town, Pa.
(2019 photo by Mr. Matté CC BY-SA 3.0)
A bizarre FOIA case decided by the Third Circuit suggests that use of an open records act in the public interest triggers constitutional protection against retaliation under the First Amendment.

A businessperson and landlord in Conyngham, Pennsylvania, John McGee used the state freedom of information act (FOIA), called the Right to Know Act, to investigate his suspicions of financial malfeasance in town government.  A town supervisor then sent to McGee, you read that correctly, a demand for private business information, purportedly issued in the name of the town and under the authority of the FOIA.

McGee asked the board of supervisors for an explanation, and they refused to give any.  In a lawsuit, McGee alleged violation of substantive due process rights and the First Amendment.  He alleged that he did not know that the town's demand was unlawful and unenforceable.

The district court dismissed both counts; the Third Circuit reversed and remanded on the First Amendment claim.  The court explained:

In order to prevail on a retaliation claim under the First Amendment, “a plaintiff must … [prove]: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp.... (3d Cir. 2006). There does not appear to be any dispute that McGee engaged in constitutionally protected speech, nor that there was evidence of a causal link between his speech and the Right-to-Know request [supervisor Linda] Tarlecki gave him.

Only the middle prong was at issue on appeal, and the court found sufficient evidence for McGee to fend off summary judgment.  The test for deterrence is objective, the Third Circuit emphasized, so it doesn't really matter whether McGee was deterred as a matter of fact.

What intrigues me about the case is the apparently non-controverted question of element (1).  The Third Circuit opinion is ambiguous on what serves so self-evidently as McGee's constitutionally protected conduct.  McGee previously had been critical, in public testimony, of the board of supervisors for how it managed the housing code, but that doesn't seem to be the impetus for retaliation here.  His FOIA request may be construed as a petition of government or as a precursor to further public criticism.  The court did not specify.

In the law of the United States, at the federal level and in most states, requesting access to information is a statutory privilege, not a constitutional right per se.  There is a strong argument that the distinction is immaterial to attachment of the First Amendment right to petition to a FOIA request.  But de facto, in my work in FOIA advocacy, retaliation against FOIA requesters is a real and serious risk.  When asked for counsel by persons contemplating use of FOIA to investigate government, I warn would-be requesters of the possibility of retaliation.

If the First Amendment affords protection against retaliation, it's not an easily won theory.  First, there are practical problems.  Finding an attorney willing to bring a First Amendment claim against government is neither easy nor cheap.  Civil rights litigation and First Amendment law are both complicated.  Attorneys who practice in civil rights prefer the familiar patterns of discrimination and harassment based on race or gender.  In small legal communities such as Arkansas's, attorneys are loath to sue sugar-daddy government.  The thin possibility of winning attorney fees, even with a multiplier, upon a convincing legal victory is not enough to incentivize counsel.

Second, legal problems loom on the merits.  Usually problematic is the third element, causation.  The conduct here in McGee is unusual in its blatant motive.  Ordinarily, when local officials deny zoning variances, liquor licenses, or other privileges to applicants who happen to be accountability mavens, the causal connection cannot be shown to a constitutionally satisfactory certainty.

Element (1) is often a problem, too, because would-be requesters are also often would-be whistleblowers.  Under the muddled constitutional jurisprudence of the rights of public employees, the First Amendment does not preclude being fired for blowing the whistle on malfeasance in one's government workplace, much less the act of filing a state FOIA request to the same end.

There's a cruel irony of inefficiency in our First Amendment jurisprudence in that public employees are least protected when they speak of what they know best.  The jurisprudence rather favors being a team player in government.  Defectors, however righteous, must seek protection in statute, where there might be none.

When I worked on FOIA advocacy issues in Arkansas, before I moved to Rhode Island in 2011, I aided Reps. Dan Greenberg and Andrea Lea with 2009 H.B. 1052, which amended the state whistleblower protection statute with express protection for the use of FOIA.  Opponents of the bill argued that it was unnecessary, because existing law protected state employees in communicating concerns to elected officials.  My experience suggested that an elected official carelessly chosen was as likely to burn a whistleblower as to facilitate accountability.

More aggressive protection of FOIA requesters should be the norm throughout the United States.  Retaliation should not have to be as overtly wrongful as in McGee to trigger protection, whether statutory or constitutional.

The case is McGee v. Township of Conyngham, No. 20-3229 (3d Cir. Sept. 23, 2021).  U.S. Circuit Judge Kent A. Jordan wrote the opinion of a unanimous panel that also comprised Judges Marjorie Rendell and David J. Porter.  HT @ Prof. Rob Steinbuch and Prof. Eugene Volokh (Volokh Conspiracy).

Sunday, September 12, 2021

FOIA committee ponders access amid privatization

I had the great privilege last week to speak to the U.S. Freedom of Information Act (FOIA) Advisory Committee, working under the aegis of the Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA) on the subject of access to the private sector in the public interest.

The OPEN the Government Act of 2007 augmented FOIA to follow public records into the hands of government contractors.  But the federal FOIA's reach into the private sector remains extremely limited relative to other access-to-information (ATI) systems in the United States and the world.  U.S. states vary widely in approach; the vast majority of state open records acts reaches into the private sector upon some test of state delegation, whether public funding, function, or power.  The same approach predominates in Europe.

The lack of such a mechanism at the federal level in the United States has resulted in a marked deficit of accountability in privatization.  The problem is especially pronounced in areas in which civil rights are prone to abuse, such as privatized prison services, over which the FOIA Advisory Committee and Congress have expressed concern.  By executive order, President Biden is ending the federal outsourcing of incarceration.  But access policy questions remain in questions about the past, in waning contracts, and in persistent privatization in some states.

As I have written in recent years, and examined relative to ATI in the United States, Europe, and India, an emerging model of ATI in Africa advances a novel theory of private-sector access in the interest of human-rights accountability.  I was privileged to share this model, and the theory behind it, with the committee.  I thank the committee for its indulgence, especially OGIS Director Alina Semo for her leadership and Villanova Law Professor Tuan Samahon for his interest in my work now and in the past.

Monday, June 28, 2021

'Clinton' honorific draws fire at Arkansas law school

"The Clinton Law School"
was not to be.
An op-ed in The Arkansas Democrat-Gazette by Mike Masterson on Saturday reported a mess at the "William H. Bowen" law school at the University of Arkansas, Little Rock, since a professor there started calling himself the "William J. Clinton Professor."  The ADG quoted an email from my friend and colleague, Distinguished Professor J. Thomas Sullivan, obtained under the Arkansas Freedom of Information Act (FOIA):

I don't recall when the Law and Public Policy Professorship was re-named for President Clinton.... I first noticed this reference in the signature block on an email sent by ["Dean Emeritus and William J. Clinton Professor of Constitutional Law and Public Service"] John DiPippa in March.

This professorship was originally designated as the Law and Public Policy professorship and was created, as I recall, after we moved into the current building. There was discussion that the Law School itself would be named for Clinton, but that was scuttled because there was serious concern that he would be subjected to some adverse legal action ... for giving false testimony in the civil action brought by Paula Corbin Jones....

I couldn't find any reference to the professorship as the "William J. Clinton Professor of Constitutional Law and Public Service" on the Bowen web site. In fact, John's faculty page describes him as: Dean Emeritus and Distinguished Professor of Law and Public Policy.

It may be that I missed an announcement ... but I am not aware of the re-designation of the professorship in the name of William J. Clinton or the reference to "Constitutional Law and Public Service." Had this been brought to the faculty for discussion ... I would have opposed the change in designation for a number of reasons:

First, President Clinton was disbarred from practice before the United States Supreme Court and the Arkansas courts following the impeachment trial, in 2000 or 2001. I believe that John took the opportunity to defend him against disbarment at the time, but conceded that some form of censure was appropriate, being quoted at the time by The Washington Post: ... "But DiPippa also said Clinton should be punished more severely because of his position. He suggested a suspension of his license for some period of time. Disbarment ought to be reserved for what I've called incorrigible lawyers—lawyers who are just going to repeat their offenses and continue to harm clients, he said." ....

I simply do not think it appropriate for a law school to honor a disbarred lawyer—it strikes me as hardly sending a deterrent message to law students or practitioners. But beyond the disbarment, I have grave concerns about Bowen being aligned with significant policy decisions taken by Clinton that have [caused] irreparable damage to our legal system.

The mass incarceration of Americans, particularly affecting the poor and African American communities, was accelerated during the Clinton administration in an effort to deflect potential Republican claims that Democrats were/are soft on crime....

Second, the 1994 law shaped Democratic Party politics for years. Under the leadership of Bill Clinton, Democrats wanted to wrest control of crime issues from Republicans, so the two parties began a bidding war to increase penalties for crime. The 1994 crime bill was a key part of the Democratic strategy to show it can be tougher-on-crime than Republicans.

Of particular importance, Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996 which effectively eliminated federal habeas corpus as a protection against state court criminal convictions tainted by procedural irregularities and failure of state courts to correctly apply U.S. Supreme Court precedent in disposition of claimed violations of federal constitutional protections.

Sullivan is right about the naming of the law school; I was there then, too.  The money was coming from Bowen, an Arkansas banker—over faculty objections that UALR was selling itself to a donor for less money than any law school had ever taken for the honor—and Bowen's name was substituted when Clinton's became politically problematic.  In the op-ed, Professor Rob Steinbuch, a colleague of Sullivan's and co-author of mine on transparency research, confirmed Sullivan's take on the unilateral impropriety of the name change.

Sullivan wrote further:

Of general importance is the usurpation of faculty governance by the law school administration. At a minimum, the question of re-designating a named professorship should be announced to the faculty for purposes of eliciting legitimate concerns. The faculty originally adopted the rule regarding named professorships that was altered to give the dean sole authority for designation—apart from specific directions given by a donor.

I don't recall whether there was faculty input in altering terms of the original rule, but I do recall the faculty were generally notified of the current rule, as published. In either event, the legitimate authority of the faculty to advise and consent, if not promulgate, a policy that may have significant consequences for the law school in terms of our mission and reputation, shouldn't be dismissed by expediency or political interests of a dean, advisers or supporters answering only to the dean.

Sullivan has his own history with named professorships at UALR.  He was stripped of his in the past for the sin of dissent.  The professorships are better measures of academic-political compliance than of merit.  They're awarded only for five-year terms so as to incentivize continuing obedience to the dean among tenured faculty who otherwise might be hard to wrangle.

Such is academics.  My school, too, punishes anyone who dares not be a "team player," or fails to dumb down her or his own performance to the median.  The problem of "workplace mobbing" to enforce group-think and tame high achievers is so severe in academics that sociologist Kenneth Westhues wrote books about it.

Tuesday, February 16, 2021

Courts extend European accountability laws to private actors: Italian soccer federation, Irish wind farm

Two recent court decisions in Europe construed European directives on public accountability to reach ostensibly private actors, the Italian soccer federation and an Irish wind-power producer.

Stocksnap by Michal Jarmoluk CC0
The problem of accountability for private actors performing public functions is as old as the corporate form.  Burgeoning corporatocracy in the electronic era has rendered new challenges to the classical public-private dichotomy, in recent years, especially, in the area of social media regulation (e.g., pro and con).  I have written about rethinking this problem in the context of access to information, regarding reform in both the United States and Europe, and I continue to research emerging models in the developing world.  As a general matter, Europe has been much less reticent than the United States to breach the public-private line with accountability mechanisms such as transparency laws.

In early February, the Court of Justice of the European Union (CJEU) in Luxembourg ruled that the Italian Football Federation, or Federazione Italiana Giuoco Calcio (FIGC), an ostensibly private entity, is sometimes a public body for purposes of the 2014 European directive on public procurement.  The directive defines public bodies within its purview:

(a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

(b) they have legal personality; and

(c) they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.

The definition is not unlike formulations in state freedom of information acts in the United States, which tend to press harder against the public-private line than the federal Freedom of Information Act (FOIA) does.  A classic example of disparate approaches in the states concerns access to the wealthy private foundations that lurk behind public universities.  My colleague Professor Robert Steinbuch has been bearing the transparency standard on this front in Arkansas and is supporting a bill there now.

At issue in the Italian case was a contract for porter services when foreign squads visit Italy.  A disappointed contractor challenged the process and won a round in Italy's high administrative court, and the appellate Council of State in Italy referred the interpretation question to the CJEU.  Both in the United States and globally, governing bodies in sport, often set up as private or quasi-public entities, have posed aggravating challenges in public accountability like the university-foundation problem.  Inapplicability of the FOIA to the US Olympic Committee has been cited as a contributing factor in sexual-assault cover-ups, and last summer, I took in no fewer than three books and a TV series on the intractable corruption in world soccer.

The CJEU opinion determined that the FIGC, constituted under private law, can act as a private body when it has autonomy to form private contracts.  However, the Italian National Olympic Committee (NOC) is a public body and has supervisory power, sometimes with a controlling stake, over some FIGC functions.  Insofar as the NOC is calling the shots on contracts, the FIGC is a public body, subject to public procurement rules.  The CJEU opinion now goes back to the Italian courts to parse the specifics. 

Cronelea Wind Farm in County Wicklow, 2008
Meanwhile, in late January, the High Court of Ireland ruled that electric company Raheenleagh Power DAC (RP) is a "public authority" for purposes of the Irish enactment of the European directive on public access to environmental information.  The law and directive define public authorities:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Reversing the Irish Commissioner for Environmental Information, the High Court determined that RP came within the definition's latter terms.  The court explained, "RP is a joint-venture company which operates a wind farm in a forest in the Wicklow Mountains. The wind farm supplies electricity to the national grid."  Complicating the analysis, the RP venture includes a one-half stake by the national-monopoly Electricity Supply Board (ESB), which the court described as "an independent semi-State company."

Like in the Italian case, the court reasoned that ESB control and management of RP brought it within the purview of public accountability law.  The ruling is important for the example it sets amid the wide range of public-private hybrids providing critical utility and infrastructure across Europe and the world.

Even so, I would like to have seen the court hang its hat more firmly on the functional analysis of the cited paragraph (b), rather than resorting to the paradigm of state control.  The urgent communal interests at stake in environmental protection have been a salient inducement to the extension of transparency law in Europe and Africa.  Western social democracies have been keen to ameliorate the effects of climate change, and many African regimes have awakened to lasting environmental damage inflicted by colonial enterprises.

The Italian case is FIGC v. De Vellis Servizi Globali Srl, nos. C‑155/19 and C‑156/19, ECLI:EU:C:2021:88 (CJEU Feb. 3, 2021).  Cain Burdeau has coverage for Courthouse NewsSven Demeulemeester, William Timmermans, and Matthias Ballieu have commentary for Altius in Belgium.

The Irish case is Right to Know CLG v. Commissioner for Environmental Information, [2021] IEHC 46 (High Ct. Jan. 25, 2021) (Ireland).  Mr. Justice Alexander Owens delivered the judgment.  Right to Know is a transparency advocacy organization headed by activist, blogger, and entrepreneur Gavin Sheridan and former and working journalists.  Jonathan Moore and Patrick Reilly have commentary for Field Fisher in Dublin.