In 'Baywatch' case, court ponders discovery rule for models' tort claims over ads posted on Facebook

Models suing an adult entertainment club occasioned the high court of Massachusetts to ponder the problem of social media and the statute of limitations on media torts in a decision Wednesday.

When I heard that the Massachusetts Supreme Judicial Court decided a case about Baywatch, I knew I would want to blog about it.

Alas, I was misled. "Bay Watch" in the instant matter has nothing to do with the The Hoff or 1990s TV.

Plaintiffs allege this ad depicts model Paola Cañas.
From Compl. ex. D.

Still, it's an interesting case. Bay Watch, Inc., is the owner of an adult entertainment club in Stoughton, Massachusetts, Club Alex's. In a lawsuit filed in federal district court in June 2021, six globally recognized models alleged that Club Alex's posted their images, some of them in scant swimwear, to Facebook to promote the club, even though none of the models had any association with the club. The models alleged trademark infringement, misappropriation ("right of publicity"), defamation, and conversion.

The issue in the trial court was the statute of limitations for the state tort claims. Sitting on the generous end of the spectrum, Massachusetts allows three years for media tort claims. But the ads the plaintiffs complained about appeared from 2013 to 2015. The district court accordingly granted summary judgment on the tort claims to the defendant in 2023. But on a plaintiff motion to reconsider at the end of the year, the court agreed to certify the limitations question to the Massachusetts Supreme Judicial Court (SJC).

Alas, not that one (IMDb).

The plaintiffs in the trial court had tried to avail of "the discovery rule," a common law rule that tolls the statute of limitations when it would work an unfairness on a plaintiff who is reasonably not cognizant that she suffered an injury for which there might be a legally responsible actor. 

The discovery rule gets a lot of play in toxic tort cases, in which illness alleged to have resulted from exposure to toxic substances might take years to manifest, and the risk of exposure might not even have been known to the victim at the time. Buttressing his decision with gender-equity-oriented social science, the late Judge Jack Weinstein famously used the discovery rule in the 1990s to give reprieve to plaintiffs suing the makers of DES, a once widely prescribed synthetic estrogen replacement that turned out to be dangerously carcinogenic.

The discovery rule is appealing as a matter of fairness, but applying it can introduce a thorny question of fact. And there are many more thorns when the rule is invoked in a case without the clear delimiters of physical injury.

It's often said, as a default matter, that the limitations period for media torts, such as defamation, runs from the time of publication. Usually that rule works well enough. But in some cases, plaintiffs are able to invoke the discovery rule. If cases are any indication, then defamation occurs in the disruption of business relationships more often than in the pop culture paradigm of media subject versus publisher. A businessperson, for example, might think she lost a contract on the merits of a bid and only later discover that she lost the contract upon the whisper of a false and harmful rumor into the right ear.

Proliferation of media in the internet age has made courts slightly more willing to afford plaintiffs an argument for the discovery rule, because mass media publication in a sea of online content might not rise to an injured's attention as quickly as a story in the town paper in ye olden days. But courts' patience is not without limit. In the online environment, courts have adapted another rule familiar to the conventional interplay of mass media and the discovery rule. As the SJC opined, in part quoting the Massachusetts Appeals Court:

"[W]here an alleged defamatory publication is broadly circulated to the public, and did not involve concealment or confidential communications," the discovery rule will not be applied, and the cause of action will accrue upon publication, as such widespread publication should have been discovered by the plaintiff.

In other words, the limitations period runs upon publication, unless plaintiff can invoke the discovery rule because a reasonable person would not have recognized the harm and arguably causal actor, unless the thing was out there for everyone so the plaintiff should have recognized the harm and arguably causal actor—in which case we come back around to publication again.

If that sounds circular .... Right. The problem with this approach is that if a reasonable person would not have recognized harm, cause, and actor, then, by definition, the plaintiff cannot be expected to have recognized harm, cause, and actor. In tort analysis, the word "should" means "a reasonable person would."

What this approach really allows is for the court to deny the plaintiff the latitude of the discovery rule as a matter of law, and to dismiss, without having to hassle (or Hassel) with the plaintiff's reasonable cognizance as a question of fact suitable for trial. In short, what the court giveth, the court may taketh away.

And that's what happened in the instant case. The federal district court first indicated that it was inclined to dismiss because the ads appeared too long ago. When the plaintiffs tried to invoke the discovery rule, the court was skeptical. These are world famous models with agents whose job it is to scan for unlicensed uses of clients' likenesses, and with lawyers who have sued over misappropriations before. All the same, the court concluded, credibility notwithstanding, these images were out there in the world long enough that the plaintiffs should have found out about them. So no discovery rule.

What seems to have given the court pause on reconsideration is that the images here were posted on social media. A paralegal in the employ of the plaintiffs

attested that there is no software that would allow her to efficiently search for the images in question and that Internet search engines do not search social media posts. As a result, the only available method is this "particularized research of particular establishments." It is this process, presumably, that led the plaintiffs to the defendant's Facebook posts.

But that took time.

The witness had a point. Google seems slow to index social media when it does at all. Many writers have trumpeted "the death of the search engine," as users prefer to seek answers in familiar social media not as polluted as Google search results with commercialization and distortions resulting from digital marketing under the guise of "optimization."

As well, the tech giants seem to have backed off image searching. When reverse image search first came out, I had fun seeing what famous people Google thought I looked like. Now, no matter what image I start with, Google either finds me, or finds nothing, saying, "Results for people are limited. Try searching a larger [image] area." The search tools can't have gotten dumber; that must be a choice. The SJC observed in evidence in the case that Facebook terminated its image search tool in 2021.

You see it, right?

There are now reverse image search apps, by the way, especially for celebrity matches. I'm apparently a dead ringer for UK actress Natalie Dormer (image via Flickr by Gage Skidmore CC BY-SA 2.0, cropped) or the great James Earl Jones (image via Flickr by Phil Davis CC BY-NC-SA 2.0, edited). Eat your heart out, Hollywood. The Celebs app sees me.

The federal district court thus asked the SJC to clarify how the statute of limitations works in a social media world.

In a characteristically methodical opinion for a unanimous court, Justice Scott Kafker stepped through the analysis in 25 pages. The opinion is elaborative, but it adds nothing new. The approach remains: publication, unless discovery rule, unless broad circulation. At greater length in conclusion, here is the court's explanation of the discovery rule in the context of social media:

Claims ... that arise from material posted to social media platforms accrue when a plaintiff knows, or reasonably should know, that he or she has been harmed by the defendant's publication of that material. Given how vast the social media universe is on the Internet, and how access to, and the ability to search for, social media posts may vary from platform to platform and even from post to post, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution, and the accessibility and searchability of the posting. The application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant's post on social media must often be left to the finder of fact. If, however, the material posted to social media is widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.

The record was insufficient, the SJC opined, to determine how the approach should work in the instant case. The plaintiffs had equivocated, the SJC observed, when asked when they first knew about the postings. If they knew before 2018, the court reasoned, then case over. Someone should ask them that.

It is possible for the conventional "whisper" scenario to play out on social media. The SJC cited a California case, Jones v. Reekes (Cal. Ct. App. 2022), in which plaintiff had been blocked from viewing the defendant's postings. Still, the California court concluded that the postings "were otherwise available to the public[,] and the block was easily circumventable;" moreover, the plaintiff was on alert generally to the defendant's derisive commentary. So the plaintiff was precluded from availing of the discovery rule, and the date of publication controlled.

Now I can't unsee it.

Jones was thus not exceptional as a mass media case, and I don't think Bay Watch is either. I suspect the SJC was being deferential to the federal trial court, giving it a chance to make the final call. It seems to me quite clear already that the district court did what the SJC commanded when it first ruled for the defense in 2023. The SJC having confirmed the rule, there seems little more for the district court to do but reenter that judgment.

The result might seem unfair to the assiduously searching plaintiffs, or, more precisely, their agents and lawyers. But the statute of limitations furthers meritorious competing interests, including finality in freedom from legal jeopardy on the part of all publishers.

The case in the SJC is Davalos v. Bay Watch, Inc., No. SJC-13534 (Mass. Sept. 4, 2024) (Kafker, J.) (FindLaw). The case in the federal court is Davalos v. Baywatch, Inc., No. 1:21-cv-11075 (D. Mass. Dec. 15, 2023) (Gorton, Dist. J.) (Court Listener).

UPDATE, Sept. 12: I was saddened to hear of James Earl Jones's passing shortly after I published this post (N.Y. Times, Sept. 9, 2024). All joking of resemblance aside, I was a fan.

Trademark feud centers on unsolved double murder

Lizzie Borden House, left; Miss Lizzie's Coffee, right.

A museum and a coffee shop are locked in trademark litigation over the name of an heiress accused of an infamous double murder. (All photos by RJ Peltz-Steele CC BY-NC-SA 4.0.)

Last year, Williamsburg, Va.-based US Ghost Adventures, owner-operator of the Lizzie Borden House and Museum in Fall River, Mass., sued Miss Lizzie's Coffee and its owner-operator, Joseph M. Pereira. The coffee shop opened in a house next door to the museum on Second Street in Fall River. US Ghost Adventures accused Miss Lizzie's of infringing on its trademark in "Lizzie Borden" and profiting from consumer confusion over the coffee shop's ownership.

In October, the federal district court, per Judge Leo T. Sorokin, denied the plaintiff a preliminary injunction. US Ghost Adventures appealed, and the matter is now pending in the First Circuit.

In 1892, Lizzie Borden was tried and acquitted of the axe murders of her father and stepmother. The brutality of the killings and the gender of the accused summed a blockbuster news event in the 1890s—not coincidentally, the pyrite age of yellow journalism—and the public followed the criminal trial breathlessly. No one ever was convicted of the crime, and Borden lived the remainder of her life under a cloud in Fall River social circles. The case has been a font of endless speculation in the popular culture, inspiring books, articles, films, TV shows, video games, songs, and nursery rhymes.

Lizzie Borden House and Museum

Opened to the public in 1996, the Lizzie Borden House and Museum, where the murders occurred and Lizzie lived at the time, features artifacts from the Bordens' life and the crime. The bed-and-breakfast part of the business capitalizes on the reputation of the property as haunted.

In August 2023, Pereira opened the coffee shop in a house adjacent to the Borden House. There is no confusion about what "Miss Lizzie's" refers to. The shop features images of Lizzie, boasts an overall theme of bloody death, and sells small souvenirs related to the Lizzie Borden story. US Ghost Adventures sued in September 2023.

"Hatchet blade" mark
registered to US Ghost Adventures
USPTO

While there is no confusion over the fact that both businesses aim to profit off the Lizzie Borden story, that overlap in itself does not constitute a trademark infringement. The defendants argued in federal district court, and the court agreed, that Lizzie Borden's name and image, and the story of the Borden murders are in the public domain. Trademark specifically protects only the brand name of the Lizzie Borden House and Museum as a hospitality service provider.

(UPDATE, Aug. 7: US Ghost Adventures has registered marks in "Lizzie Borden" and in its hatchet-blade graphic (pictured) for "hotel and restaurant services," which, I admit, comes closer to a coffee shop than mere hospitality. I would still draw the line. US Ghost Adventures also has registered "Lizzie Borden Museum" for "museum services" and the hatchet-blade image for key chains, jewelry, mugs, golf balls, hats, shirts, etc. Search "Lizzie Borden" at the USPTO for full details. HT@ Prof. Anoo Vyas.)

The trademark test for "consumer confusion" about who is the service provider presents, essentially, a frame-of-reference problem. US Ghost Adventures says that its trademark precludes another hospitality service provider from using the Lizzie Borden name, or anything confusingly similar thereto, and a coffee shop is a hospitality business. The defendants argued, and the court agreed, that a coffee shop is a sufficiently different enterprise from a bed and breakfast as not to induce consumer confusion.

Miss Lizzie's Coffee

It's not that a coffee shop could not infringe the trademark, but that this one has not, the trial court concluded. The plaintiff tried to tighten the connection between the two businesses by pointing to their proximate location and their common uses of hatchets in signs and promotional images. The court found neither proffer convincing. It makes sense to locate any Borden-themed business near the scene of the crime, and the hatchet images the businesses use are different. Lest there be any lingering doubt in a customer's mind, the coffee shop put up a sign avowing its non-association.

(There is some dispute as well about the difference between a hatchet and an axe, which was used in the murder, and which is depicted where. I don't have the bandwidth to, uh, chop through that thicket.)

Notwithstanding the plaintiff's appeal, I think the trial court got it right. Judge Sorokin convincingly suggested by way of example that trademark law does not preclude a business from using the historical name of Sam Adams, as long as the business isn't a brew works. In the same vein, in any close case, I prefer to see trademark law construed as not at cross-purposes with economic development, which Fall River can use. More touristic business floats all boats.

As the appeal unfolds in the First Circuit, an unfortunate and layered backstory is coming to light. For reasons unstated in the record—one might fairly speculate the burden of attorney fees—Pereira discharged his two lawyers, who withdrew from the case in April 2024. In July 2024, Pereira responded pro se to the appellant-plaintiff's brief. 

US Ghost Adventures was able to sue both Pereira and Miss Lizzie's because, according to the allegations, Periera opened the shop about a month before his business registration was formalized. The plaintiff therefore demanded that Pereira personally disgorge ill-gotten profits from that first month.

The problem now on appeal is that a corporation cannot be represented pro se, and Pereira is not an attorney. So his responsive brief, already shaky on legal formalities, cannot represent the position of Miss Lizzie's. The court accordingly ordered that Miss Lizzie's would not be permitted to argue on appeal. In an August 1 reply, the plaintiff then asked the court to decline oral argument entirely, as Pereira inevitably would argue Miss Lizzie's position in violation of the court's order. 

As I said, I think the plaintiff is wrong on the merits, so the First Circuit should affirm. And that would be the safe bet in ordinary circumstances.

But the plaintiff's reply fairly faults Pereira for thin legal arguments in the pro se brief. That puts the appellate court in an awkward position. Even if the plaintiff bears the burden of persuasion on appeal, the First Circuit is looking at a record short on effective counterargument. 

Considering the preliminary disposition of the proceeding in the trial court, the appellate court might err on the side of reversing and remanding, to develop a fuller trial record. The defendants' pro se bind will persist, though, and would threaten an outcome dictated by access to counsel rather than the case on the merits.

There's a deeper layer yet. It happens that Pereira has a troubled history with the law. According to The Standard-Times, in 1996, he "pleaded guilty to stealing more than $119,000 from 15 people after posing as a lawyer and mortgage broker." Appearing as an attorney in a 1993 housing matter, Pereira "was so good, witnesses say, that ... he stood up to a judge, a clerk and another attorney without even raising an eyebrow," The Standard-Times reported in 1995. A veteran attorney said that "he never suspected a thing," and that Pereira "was very polite and seemed pretty knowledgeable about the lead-paint law."

Pereira's record did not improve subsequently. In 2010, he was sentenced to three to five years' imprisonment after "he pleaded guilty to 13 counts of larceny, one count of practicing law without a license and one count of committing that offense after being convicted of the crime in 1996," Wicked Local reported in 2012. As The Herald News put it upon an arrest in 2019: "Since 1982, Pereira has been arraigned approximately three-dozen times on larceny-related charges. His most recent arrest added another 17 larceny charges to his record." He did beat some charges.

To Pereira's credit, I did not think his response in the First Circuit was as devoid of reasoning as US Ghost Adventures alleged. Albeit in improper form, the appellee's brief more or less rehashed the core arguments in the case. If in proper form, that's what the appellant's brief did, too.

Certainly Pereira's criminal history should have no bearing on the trademark case. The case also, ideally, should not be decided based on either party's access to counsel, though such immateriality of resources is not the way of the American legal system, especially on the civil side.

Whatever comes to pass procedurally, I stand by my assessment of the merits. On Friday morning, I picked up a cup of coffee at Miss Lizzie's.

The appellate case is US Ghost Adventures, LLC v. Miss Lizzie's Coffee LLC, No. 23-2000 (1st Cir. filed Nov. 27, 2023). The case in the trial court is US Ghost Adventures, LLC v. Miss Lizzie's Coffee LLC, No. 1:23-cv-12116-LTS (D. Mass. Oct. 27, 2023) (CourtListener).

Wood wins Rappaport Fellowship

Rebecca Wood
BC Law

Rebecca Wood, a survivor of my 1L torts classes, has won a prestigious Rappaport Fellowship in law and public policy.

Wood became active in politics after the premature birth of her daughter raised urgent questions for her family about the inadequacies of insurance and healthcare in America. Check out her story as told while working on Medicare-for-all legislation with Bernie Sanders in 2017. She testified movingly before the U.S. House of Representatives Ways and Means Committee in 2019. 

Wood enrolled in law school as a Public Interest Fellow to attain a law degree that will arm her for public policy work. She was a pleasure to have in class, because she is insightful and sensitive to the powerful public policy implications of tort law. She will be a formidable force for good, and I'm privileged to be a part of her education.

At Boston College, "[t]he Rappaport Fellows Program in Law and Public Policy provides gifted students committed to public policy careers with opportunities to experience the complexities and rewards of public policy and public service within the highest levels of state and municipal governments." Wood spent the summer as an intern at the Massachusetts Attorney General’s Office.

Town asserting 'full-on assault of stink' wins latest round in nuisance feud with hot-mix asphalt maker

Quarry and asphalt manufacturing facility in England.
Richard Law via Wikimedia Commons GNU 1.2

An asphalt plant that residential neighbors blamed for burning eyes and sore throats is a public nuisance, the Massachusetts Appeals Court affirmed Friday.

There's been much hand-wringing over the use, and argued misuse, or even abuse of public nuisance law in recent years, from me included. The sub-subject is addressed in my recent 2 Tortz (2024 rev. ed.) (SSRN), and a recent book by the insightful Prof. Linda Mullenix sits on my desk, patiently awaiting attention.

But Friday's case is a reminder that sometimes, a public nuisance is just a nuisance.

The defendant's property, in Acushnet, Massachusetts, on the commonwealth's south coast and just 10 minutes from my work, was a quarry since the 1890s and an asphalt plant since the 1950s, the court recounted. Then in 2021, owner P.J. Keating (PJK) started operating a newly constructed hot-mix asphalt plant located closer than its predecessor facility to neighboring residential properties. Subsequently, local resident complained to the Acushnet Board of Health of noxious odor and burning eyes, noses, and throats.

The board ultimately sent two investigators, one its own agent and one a hired expert. Both validated the complaints. The board's agent reported, according to the court, that "the odor was 'horrendous,' lasted throughout his fifteen-minute visit, made his eyes water, and left him feeling dizzy for one-half hour after leaving the site.... He testified that at the home of one resident, he rated the odor as level four [of seven], but at another home he rated the odor as a seven for the duration of his visit, a 'full-on assault of ... stink.'"

PJK provided contrary evidence. PJK told the board that it complied with the toughest regulatory standards, and its activity comported with the property's industrial zoning. PJK cast doubt on the credibility of the complainants, showing that a great many complaints came from relatively few neighbors. And some complaints occurred at times when the plant was not operating, PJK submitted. PJK also submitted expert evidence to argue that any odors or fumes posed no risk to public health.

Some of the disconnect might have resulted from the source of odors or fumes being transport trucks rather than the plant itself, the board expert suggested. When the mixing facility was located deeper in the property, the hot-mix asphalt had more time to cool while it was loaded into the trucks. With the new facility, trucks were loaded and hit the road, close to residences, while the asphalt was still hot.

Either way, the problem before the Appeals Court was not really one of merits. After the Board of Health ordered PJK to cease and desist until it could get its emissions under control, PJK sought and obtained relief in the Superior Court. The Superior Court ruled that the board's decision was arbitrary and capricious and not supported by substantial evidence, so annulled the cease and desist.

Hardly so, the Appeals Court ruled: "We think it plain that the record contains substantial evidence supporting the board's conclusion that PJK's plant is a public nuisance." The board might have given witness testimony more credit than PJK cared to, but that's the job of the fact-finder. The board received abundant evidence from both sides, so its conclusion was neither arbitrary nor unsubstantiated.

As a point of interest, the court observed that the board's legal determination must be given some latitude. Quoting the state high court from 1952, "[b]oards of health are likely to be composed of laymen not skilled in drafting legal documents, and their orders should be read with this fact in mind. They should be so construed as to ascertain the real substance intended and without too great attention to niceties of wording and arrangement."

At a deeper level, the simple case is indicative of the challenge at the heart of public nuisance doctrine, a division between the powers of the judiciary, resonating in corrective justice, and the powers of the political branches, resonating in distributive justice.  Public nuisance cases are difficult because they put the courts in the position of enforcing amorphous public policy, here, enjoining the operation of a lawful business.

In this vein, it's telling that PJK relied on its full compliance with zoning laws, industrial regulations, and public health and environment laws. The strategy effectively argues that the question presented already has been decided by the political branches, so the courts should not second guess. If residents don't want an asphalt plant next door, the argument goes, their remedy is with the zoning commission. To burden a business beyond substantial regulation is to invite courts to interfere with the economy: not their job.

In another state, that argument might win the day. Massachusetts courts are less solicitous, or more willing to assert regulatory authority, if there is no plain political mandate to the contrary. The court here agreed with the board that just because asphalt-mixing odors and fumes are not regulated, or are regulated only at extremes—in fact, the EPA deregulated asphalt manufacturing emissions in 2003—does not mean there is no risk to public health, nor even that emissions are not carcinogenic.

One need look no farther than PFAS to show that non-regulation is not necessarily indicative of safety.

The outcome here is bad news for a nasty collateral litigation brought by PJK in 2022 against the Town of Acushnet.

The PJK suit in federal court demands $50 million dollars for losses in stalled productivity at the facility. PJK accused the town of regulatory taking through "a series of deliberate, methodical, concerted, and systematic actions to specifically target Plaintiffs and the Property and to stop the legal, longstanding operations on the Property," WJAR reported in January. According to PJK, "the [board agent] has stated that 'the Town hired him "to make PJK's life a living hell."'" 

Currently in discovery, the federal case is Tilcon, Inc. v. Acushnet, No. 1:22-cv-12046 (D. Mass. filed Dec. 2, 2022).

Friday's case is P.J. Keating Co. v. Acushnet, No. 23-P-629 (Mass. App. Ct. Apr. 12, 2024) (temporary state posting). Justice Peter W. Sacks wrote the unanimous opinion of the panel, which also comprised Justices Meade and Massing.

UMass Law inaugurates comparative law study abroad

UMass Law School has announced a two-week study abroad program in Lisbon, Portugal, in partnership with Universidade Católica Portuguesa (UCP), focused on U.S.-EU comparative law.

I'm quick to call out my employer when it does something bone-headed, so I should be willing to give praise when it does something right. This is the latter.

In 28 years of university teaching, I've consistently had to persuade deans that internationalism matters. Some, not always nor wholly to their discredit, have been so absorbed by the burdens of making the world better locally that they have not had the bandwidth to think about other cities and states, much less countries.

Some have just been fools. Like the one in Arkansas who told me that "our students don't care about that" to reject my proposed partnership with a Mexican school when Arkansas had the fastest growing per capita Latino population in the country, a new Mexican consulate was opening in Little Rock, and we supposedly cared about diversity.

It was a shock, then, to find that the new top dean this academic year at UMass Law, Sam Panarella, believes that international engagement is a vital component of being a good law school. Thanks to his leadership in just his first year as dean, 10 students from UMass Law will journey to Lisbon this very year to study the comparative law and policy of U.S. and EU data protection.

Rhode Island and the south coast of Massachusetts, where UMass Law is located, are home to the largest Portuguese-American population in the United States by a wide margin. So the program is a welcome and logical fit for 14-year-old UMass Law School. The program is made possible, especially for students, by generous support from the Center for Portuguese Studies and Culture at UMass Dartmouth, which does important work in its cultural niche.

We plan to repeat the Lisbon program in future years, in other areas of comparative focus, taking advantage of the varied expertise of law faculty at UMass and UCP. There are hurdles to overcome. But I'm hopeful that this is just the beginning of UMass Law's portfolio on international engagement.

Women 'knew their place' turns out to be losing union argument to justify discrimination in port jobs

Herman Melville boarded the Acushnet at New Bedford Harbor in 1841.
RJ Peltz-Steele, 2022, CC BY-NC-SA 4.0

From the Massachusetts Appeals Court today, a reminder that however far we've come, we've yet so far to go.

Specifically, [plaintiff-appellee] Robar alleged that she was passed over for work [at the Port of New Bedford, Mass.] as a forklift operator in favor of men who not only were less qualified than she was, but who—unlike her—lacked a mandatory qualification for the position. When given the opportunity to respond, the union's then-treasurer (later president and business agent), Edmond Lacombe, supplied a written statement that proved unhelpful to the union's defense. Specifically, among other things, he recounted that the women who were hired for the traditionally female positions "did not complain"; rather, "[t]hey, more or less, knew their place when work was issued and accepted the outcome."

The union was the defendant-appellant in the case, because its referrals to the employer were de facto selections for hiring. Perhaps needless to say, the court affirmed for the plaintiff on the merits. The court also rejected the union's contention that the National Labor Relations Act preempted enforcement of state labor law, rather finding the subject-matter jurisdiction concurrent.

The case is International Longshoremen Association, Local 1413-1465 v. Massachusetts Commission Against Discrimination (Mass. App. Ct. Apr. 3, 2024) (temporary state posting). Justice James R. Milkey wrote the unanimous decision of the panel, which also comprised Chief Justice Green and Justice Grant.

High court construes tenure contract to constrain faculty salary cuts at Tufts medical school

TUSM Arnold Wing, 2012, Boston
John Phelan via Wikimedia Commons CC BY 3.0

Academic freedom won a rare court victory last week when the Massachusetts high court allowed claims that Tufts University improperly reduced the salaries of tenured medical faculty.

(As an aside, I wrote just yesterday about academic freedom in the case of FAMU's efforts to fire the law school's first and only tenured Latina professor for speaking on a matter of public concern, namely, the school dean's contentious resignation. Please consider signing the letter in support of Prof. Maritza Reyes.)

In the scrappy remains of what academia has become, the Tufts School of Medicine (TUSM) in the late 2010s told eight faculty that they would have to bring in external research support to cover half their salaries and their lab space, or they would see their salaries and space cut. The eight plaintiffs didn't meet the new standards, and TUSM imposed the cuts.

As things usually go in these cases, the trial court awarded summary judgment to the defense. Much responsibility for the sorry state of academic tenure in the United States can be laid at the feet of its once defenders, such as the American Association of University Professors (AAUP), which became so enamored with procedural arcana in the early 20th century that it forgot the substantive rights it was supposed to be fighting for. I wrote in 2011 about this problem and the urgent need to address it then. The law too often says that as long as a university dots its is and crosses its ts, it can fire for any reason.

The typical bulwark in the tenure contract is simply that firing must be "for cause," a wishy-washy term that reduces the contract practically to year-to-year employment. A university can disavow termination as a violation of civil rights, then turn right around and point to bad breath and a disagreeable disposition as sufficient "cause." Judges usually are eager to defer to universities, reasoning that workers could strike better bargains if they wanted to; they have the AAUP working for them, after all.

Just such ambiguity contributed to the plaintiffs' grief in the instant case. The Massachusetts Supreme Judicial Court (SJC) opined that the term "economic security" in the Tufts tenure contract "is ambiguous." Upon the ambiguity, the term could be not be said to include a guarantee of lab space, and the lower court so concluded correctly.

A state high court typically would send plaintiffs packing wholesale upon deference to university interpretation of the contract. However, the SJC reversed and remanded, concluding that "more evidence is required regarding the customs and practices and reasonable expectations related to salary and full-time status for tenured professors at TUSM, and even other universities and medical schools," to determine whether the compensation reduction violated the contract.

Massachusetts is a labor-friendly state, for better and for worse. The courts are permissive, for example, in "wrongful termination" tort suits that would be shut down in a flash in other states. Here, the SJC was willing to look for evidence that other states' courts would eschew breezily. While I'm usually hesitant to see a court broadly construe a meticulous private contract, I'll here let myself be bettered by anxiety over academic freedom facing evisceration by the looming dismantling of faculty job security.

The plaintiffs in the Tufts case had been awarded tenure at different times, from 1970 to 2009. The SJC looked to the TUSM faculty handbook, which usually is construed as contractual in higher ed employment law. The handbook includes an academic, freedom, tenure, and retirement policy that incorporated language verbatim from the 1940 AAUP Statement on Principles of Academic Freedom and Tenure.

The 1940 statement speaks eloquently to the importance of "freedom of teaching and research and of extramural activities," as well as "a sufficient degree of economic security." All good. But the statement characteristically left "the precise terms and conditions" to ad hoc negotiation, as long as termination is permitted "only for adequate cause" and the result of some kind of review process. That's long left the tenured professor in an AAUP-style contract to wonder whether anything would stop the university from reducing salary to a penny and relocating the professor's office to the boiler room.

When Tufts presented a faculty hearing board with a multi-million operating deficit in the late 2010s, the board was more than willing to throw some faculty under the bus to save the rest. The union at my school did the same thing during the pandemic: eagerly approving faculty salary cuts, and even asking that they be higher, rather than calculating how many quarter-million-dollar-a-year assistant-associate-vice-provost-chancellors we might do without instead. 

Thus, another problem with tenure as we have it is that the AAUP, enraptured as it was and is with collectivism, never thought to consider the need to protect faculty from each other. Unlike the First Amendment, AAUP academic freedom allows the collective to run roughshod over dissenting voices.

With due process duly delivered, the Tufts plaintiffs saw salary reductions from 10 to 50%.

Taking stock of the matter, the SJC concluded, again, exceptionally, that "economic security is an important substantive provision of the tenure contract and not a prefatory or hortatory term." The court relied on the 1940 statement and strained in structuralist contract construction to distinguish a 2022 New York decision to the contrary. 

The record at Tufts probably does not support plaintiffs in resisting any salary reduction, but, the SJC concluded, at least created a question of fact as to how much is too much.

The case is Wortis v. Trustees of Tufts College (Mass. Mar. 14, 2024). Chief Justice Scott L. Kafker wrote the unanimous opinion.

Mass. attorney board rushes to racialize, shun 'overseer,' ignores word's ancient, biblical usages

A proposal published for public comment would change the name of the Massachusetts Board of Bar Overseers to the "Board of Bar Oversight" to avoid connotations of slavery in the term "overseer."

The new name means the "BBO" will keep its popular initialism. The BBO was formed in 1974, so the "overseer" usage originated independently of the negative connotation. It seems what's changed in the last half century is sensitivity to language, for better and for worse.

Frederick Douglass
and grandson Joseph Douglass, 1894
Smithsonian NMAAHC

The BBO stated its reasoning:

The word "overseer" has a pernicious history in our country, tied inextricably to chattel slavery. On southern plantations, an overseer was the slaveowner's delegate in day-to-day governance, trusted to enforce order and obedience. Overseers were the most visible representatives of white supremacy. As defined in the Online Etymology Dictionary, an overseer was "one who has charge, under the owner or manager, of the work done on a plantation." In autobiographies by slaves such as Frederick Douglas [sic] and Solomon Northup ("Twelve Years a Slave"), overseers were described as heartless, brutal and cruel. They were an inevitable and indispensable product of an economy built on human chattel. As noted by University of Louisville president Neeli Bendapudi, "The term overseer is a racialized term. It hearkens back to American slavery and reminds us of the brutality of the conditions and treatment of black people during this time." We agree with this statement.

I don't. To "racialize" is "to give a racial character to: to categorize, marginalize, or regard according to race." I agree that Bendapudi racialized the term. The BBO did not, before now. But therein lies the power of a passive structure, "is ... racialized," allowing one to accuse without responsibility to prove.

The BBO moreover is almost irresponsibly selective in its sourcing. First, the Online Etymology Dictionary is a project of a Pennsylvania writer, Douglas Harper. It's good and interesting to read; I'm not meaning to denigrate Harper's labor of love. But I'm not sure any one person's internet project should be anyone else's first stop for denotation, especially in a legal context. The BBO's sourcing is on par at best with high-school-term-paper standards.

Second, "one who has charge ... of the work done on a plantation" is not exactly what the Online Etymology Dictionary says. Rather, here's the entry in full:

late 14c., "supervisor, superintendent, one who looks over," agent noun from oversee (v.). Specifically, "one who superintends workmen;" especially with reference to slavery, "one who has charge, under the owner or manager, of the work done on a plantation."

So it's not true, even in the source referenced, that "overseer" on its face is defined as, or means, a plantation supervisor. The meaning arises in the especial context of slavery.

Maybe I'm a little sensitive to the whole thing because I once served as an "overseer" in my church. The BBO doesn't mention that the word has any meaning outside of slavery, much less that it has ancient and Biblical origins.

Episkopos (ἐπίσκοπος) in Ancient Greek translates literally as onlooker, or overseer, and that's the word used in the Iliad, the Odyssey, and the Bible. Epi (ἐπί) is a preposition meaning on or upon, and skopos (σκοπός) means to watch or look intently. Skopos is used variously (and in the Iliad) to refer to a lookout, a guardian, or a spy or scout.

In Ancient Greece, an episkopos referred specifically to a kind of imperial agent sent by Athens to distant municipalities to make sure they paid their taxes (Balcer 1977). (An interesting point of historical-comparative legal studies is that having a highly functional tax system is a common feature of successful ancient civilizations, from the Greeks to the Aztecs.) 

In the Iliad (22:255), A.T. Murray translation, Homer refers to the gods as witness to an agreement, using episkopoi (ἐπίσκοποι), the plural, to refer back to the gods. Murray beefed up the translation to say "witnesses and guardians of our covenant," thus articulating the added connotation of safeguarding.

In the Odyssey, also the Murray translation, below, Homer used episkopos more abstractly to indicate a role of authority:

τὸν δ᾽ αὖτ᾽ Εὐρύαλος ἀπαμείβετο νείκεσέ τ᾽ ἄντην:
‘οὐ γάρ σ᾽ οὐδέ, ξεῖνε, δαήμονι φωτὶ ἐίσκω
160ἄθλων, οἷά τε πολλὰ μετ᾽ ἀνθρώποισι πέλονται,
ἀλλὰ τῷ, ὅς θ᾽ ἅμα νηὶ πολυκλήιδι θαμίζων,
ἀρχὸς ναυτάων οἵ τε πρηκτῆρες ἔασιν,
φόρτου τε μνήμων καὶ ἐπίσκοπος ᾖσιν ὁδαίων
κερδέων θ᾽ ἁρπαλέων: οὐδ᾽ ἀθλητῆρι ἔοικας. 

Then again Euryalus made answer and taunted him to his face: "Nay verily, stranger, for I do not liken thee to a man that is skilled in contests, such as abound among men, but to one who, faring to and fro with his benched ship, is a captain of sailors who are merchantmen, one who is mindful of his freight, and has charge of a home-borne cargo, and the gains of his greed. Thou dost not look like an athlete."

In none of several English versions of this passage did I find episkopos translated directly. Poetically inclined translators such as Murray carried over the subject "captain" with either a pronoun or an implied subject. "Captain" here is "ἀρχὸς," or "chief." So it looks like Homer saw ἀρχὸς and ἐπίσκοπος as functionally equivalent in this context.

The New Testament accordingly uses episkopos several times to refer to church leaders. Indeed, "bishop" in English derives from the Greek episkopos—episcopus in Latin and obispo in Spanish.

Shepherd in 1 Peter 2:25
© Saint Mary's Press, licensed for non-commercial use

The First Epistle of Peter (2:25) (NIV) uses episkopos abstractly, as a metaphor for Jesus: "For 'you were like sheep going astray,' but now you have returned to the Shepherd and Overseer of your souls" ("ἦτε γὰρ ὡς πρόβατα πλανώμενα· ἀλλ᾽ ἐπεστράφητε νῦν ἐπὶ τὸν ποιμένα καὶ ἐπίσκοπον τῶν ψυχῶν ὑμῶν").  

Other usages are more concrete. In Acts 20:28 (NIV), Paul admonishes disciples: "Keep watch over yourselves and all the flock of which the Holy Spirit has made you overseers. Be shepherds of the church of God, which he bought with his own blood" ("προσέχετε οὖν ἑαυτοῖς καὶ παντὶ τῷ ποιμνίῳ ἐν ᾧ ὑμᾶς τὸ πνεῦμα τὸ ἅγιον ἔθετο ἐπισκόπους ποιμαίνειν τὴν ἐκκλησίαν τοῦ θεοῦ ἣν περιεποιήσατο διὰ τοῦ ἰδίου αἵματος"). Similar usages appear in Philippians 1:1, 1 Timothy 3:2, 1 Titus 1:7, and Hebrews 13:17.

The BBO needs to be called out here for shoddy work (really, misspelling Frederick Douglass?) and results-oriented reasoning. The board is myopically intent on sacrificing a word on the pyre of cancel culture—a move indicative more of wanting to look righteous than of wanting to be righteous. I might rather, as a general rule, strive for education and enlightenment, at least as a first-order response.

Yet, as it happens, I agree with the BBO's conclusion and proposal. Despite the board's woke pandering, the risk is significant that "overseer" will import for some hearers a connotation that should be foreign to the board's role. For me, it's not about "racialization"; it's about relationship. 

When I moved to New England and started to learn the ropes of the local legal culture, I bristled at the term "Bar Overseers." To be fair to Massachusetts, I have had the same feeling in other jurisdictions about boards of attorney and judicial "discipline." 

"Overseer" and boy in Yazoo City, Miss., yarn mill, 1911.
U.S. Library of Congress

I fear that these words connote a top-down style of austere supervision, a system of the powerful and the powerless, that does not comport with a profession of mutually supportive equals (dare I say, a brethren, which is and should be gender encompassing). "Overseer" is suggestive of a dramatic power imbalance; the word was used not only in connection with slavery and plantations, but in the context of child labor in the early 20th century.

That doesn't mean that the time never comes when persistent or willful misconduct requires a firm response; the profession owes its highest duty to the public. But using terms such as "overseer" and "discipline" has the unintended consequence of encouraging officeholders to misunderstand their roles. Lawyering and judging are among jobs that endow persons with authority over others, whether through power, like policing, or through access to knowledge. Some people attracted to these jobs are prone to use, or abuse, their power for its own sake. Those same people might gravitate to a job such as "overseer" or arbiter of "discipline" for the wrong reasons.

I was more amenable to the term "overseer" in my church, because the biblical usage is, or should be, utterly alien to abuse of power. Similarly, a church speaks of spiritual "discipline" with only the affirmative connotation of accountability to God. As a church overseer, I felt the weight of guardianship in the term. Being an overseer was a stern reminder of my responsibilities to others and sometimes, too often, of my own duties and failures of spiritual discipline. Anyone truly called to church leadership is humbled by the call, not lured by empowerment.

Even so, when my board of overseers overhauled the church constitution, we changed to "elder" leadership. At the same time, we changed the governance model. We studied and prayed over many church governance models. The Bible says remarkably little about specifics, so the art of church governance becomes part spiritual endeavor and part sociological experiment. We designed a variation on governance that we believed would work well for our congregation, better, at least, than what we had in an aging constitution. 

"Elder" aligned better with our new model, which emphasizes biblical knowledge, experience, and mentorship. There's nothing technically deficient in the term "overseer" for our new model, and we were not afraid of "racialization." It was just semantics. Different Christian writers have committed to different terms, so those terms now carry connotations of the writers' observations and recommendations.

So connotation, like context, matters. And given the connotation of barbarism that even sometimes attaches to "overseer," especially in secular contexts, the BBO's modest proposal is sensible.

I simply would prefer that the proposal were backed by an evenhanded and honest analysis. Then we might be able to say, more modestly, that we are just pushing pause on "overseer": giving its deplorable connotation time to fade in our social consciousness, rather than committing a word of ancient import to the dustbin because of a modern-era abomination.

Observers comment on Assange extradition hearings

My thanks to Assange Defense Boston for organizing the Massachusetts State House rally on February 20 (above). Assange Defense Boston posted on X a couple of clips of me (below). Read more about "Me and Julian Assange" and see my images from the event.

Here (and embedded below) is a webinar from the European Association of Lawyers for Democracy and World Human Rights about the February 20 and 21 hearings in the UK High Court of Justice. And here (and embedded below) are discussions of journalists, diplomats, and others who were in the room for parts of the hearings.

"..it's not partisanship...this is about government accountability. You can not form coherent policy positions...unless you have the info on which to base them. That's what Julian Assange is about. That's what resisting his extradition is about"
Prof. Rick Peltz-Steele @UMassLaw pic.twitter.com/9ONm9RDxVz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

"[Assange]developed this amazing idea abt freedom of information absolutism...When he founded WikiLeaks..to make the best use of this new democratizing instrument on the internet" Prof. Richard Peltz-Steele @UMassLaw, co-signee letter to @TheJusticeDepthttps://t.co/RJLoxdBue7
2/ pic.twitter.com/umiT9FAvQz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

State high court simplifies anti-SLAPP, draws picture

Notwithstanding the merits of anti-SLAPP statutes—I've opined plenty, including a catalog of problems—the Supreme Judicial Court of Massachusetts (SJC) in recent years made a mess of the state anti-SLAPP law by creating an arcane procedure that befuddled and frustrated the lower courts.

Yesterday the SJC admitted the arcanity and clarified the procedure. I'll note that one thing I like about the Mass. law is that it has a focused trigger in petitioning activity; that's not changing. It'll take me some time to work through the 50 pages of the opinion. But to my delight, there's a picture! The SJC kindly created a flow chart:

The case is Bristol Asphalt Co. v. Rochester Bituminous Products, Inc. (Mass. Feb. 29, 2024). The court then helpfully applied the new framework in another case the same day, Columbia Plaza Associates v. Northeastern University (Mass. Feb. 29, 2023). (Temporary posting of new opinions.)

The court's unofficial top technocrat, Chief Justice Scott L. Kafker authored both opinions. The court affirmed in both cases, denying the anti-SLAPP motion to strike in Bristol Asphalt and granting it in Columbia Plaza, so the lower courts waded their way to correct conclusions despite the mire.

Consultant panning contractor was not 'improper' interference with lucrative reno deal, court holds

Rawpixel CC0 1.0

An architect whom homeowners hired to review their bills in multimillion-dollar renovation did not tortiously interfere with the reno contract when he advised them to terminate and hire another contractor, the Massachusetts Appeals Court held yesterday.

The devil in the details here is the element "improper" in the tort of interference. The same element, or the same concept, lives at the heart of many a business tort, and it's a difficult line to find. Indeed, the Appeals Court wrote that "improper" "has proved difficult to capture in a universal standard."

Interference with contract in Massachusetts law requires a contract or prospective business relation, knowing inducement to break the contract, interference by "improper motive or means," and harm to the plaintiff as a proximate result. Here, the architect told the homeowners they were being overbilled and urged them to terminate the renovation contract and hire a contractor the architect recommended. They did, and the terminated contractor sued the architect for interference with contract.

The fact pattern is common for generating interference claims, as the very job of the defendant is, in a sense, interference, that is, to run interference between consulting client and its contractor. Only "improper" was in dispute, and the plaintiff-contractor could not show evidence that measured up.

The plaintiff disputed the veracity and quality of the defendant's consultation and advice. But worst case, the court reasoned, the plaintiff might persuade a jury to find negligence or gross negligence. That can't be the basis of an interference claim, because then the interference tort would make actionable every negligent infliction of economic loss. 

The negligence tort usually requires a physical infliction of loss or harm. Business torts are exceptional in this regard, but they are predicated on a strong duty relationship, such as contract or fiduciary obligation. The plaintiff-architect and defendant-contractor here were not in privity of contract.

The court looked to an earlier case in which the Massachusetts Supreme Judicial Court had allowed interference predicated on deceit or intentional misrepresentation. That can suffice to support interference. But there was no evidence here of deceit. So the court pondered what improper means short of that standard.

The court leaned heavily on the Second Restatement of Torts, which suggested, besides deceit, threats, defamation, or other conduct "innately wrongful, [and] predatory in character." Inversely, the Second Restatement advises that no interference liability can arise from "truthful information" or "honest advice within the scope of a request for advice."

The latter standard fit, the court opined. And the Restatement comments elaborated, "[N]o more than good faith is required," regardless of competence. "The rule as to honest advice applies to protect the public and private interests in freedom of communication and friendly intercourse," affording latitude especially to "the lawyer, the doctor, the clergyman, the banker, the investment, marriage or other counselor, and the efficiency expert."

The court affirmed the superior court award of summary judgment to the defendant.

There's unfortunately one point of confusion reiterated in the court's opinion. The court correctly pointed to a line of Massachusetts cases approving of "actual malice" as supporting interference claims in the context of employment, when a disgruntled terminated worker claims interference against a supervisor or corporate officer for interfering with the worker's employment contract. In this context, the courts defined "actual malice" as "spiteful, malignant purpose unrelated to a legitimate corporate interest."

Common law malice

That's not what "actual malice" means, at least in the civil context. "Actual malice" generally is a stand-in for reckless indifference and is distinguishable from "common law malice," which represents spite, ill will, or hatred. It's been observed many times that "actual malice" is unfortunately named, and it would be better had there been a different term from the start. Common law malice can be evidence of actual malice, but certainly is not required. The difference can be confusing to jurors.

The Massachusetts precedents on interference in the employment context seem to have misused the term "actual malice" to refer to common law malice. OK, I guess, as long as we all know that malevolence is the one that can evidences tortious interference.

I have some doubts, by the way, about the correctness of the Massachusetts cases that apply the interference tort in fact patterns involving a fellow worker as defendant. A basic rule of interference is that one cannot be said to have interfered tortiously with a contract to which one is a party. If the defendant was clearly acting within the scope of employment, that is, as an agent of the employer, then I don't see that a tortious interference claim can arise, and there's no need to analyze impropriety. But then, I guess, the threshold requirement overlaps with the "unrelated to a corporate legitimate interest" piece of the impropriety test.

The case is Cutting Edge Homes, Inc. v. Mayer, No. 23-P-388 (Mass. App. Ct. Feb. 27, 2024) (temp. slip op. posted). Justice John C. Englander wrote the opinion of a unanimous panel that also comprised Justices Ditkoff and Walsh.

Parks group challenges soccer stadium under state constitutional right to environmental conservation

A Boston lawsuit pits parks against soccer, tying in knots fans of both such as me.

The Emerald Necklace Conservancy on February 20 sued the City of Boston and Boston Unity Soccer Partners to stop the redevelopment of White Stadium to host a women's professional soccer team. 

(UPDATE, Mar. 25: The Superior Court on March 22 denied injunction of the redevelopment project. E.g., WBUR.)

What's compelling about the case as a matter of urban redevelopment arises from the fact that a stadium is already there. The conservancy is not trying to get rid of it. Though there is tentative objection to the footprint of the redevelopment project in Franklin Park, the complaint focuses on the repurposing of the stadium for the benefit of private investors, to the exclusion of public use.

Everyone agrees that White Stadium is in sore need of refurbishment. The 1945 construction has a storied history going back to Black Panther rallies in the 1960s. Its present state of deterioration for age is evident. Naturally, local government is keen to link arms with private investment. Boston Unity makes a heckuva pitch (pun intended) in a town willing and able to support an entrant in the expanding National Women's Soccer League.

Site plan in complaint exhibit.

However, the project, which Boston Unity characterizes as "a first-of-its-kind public/private partnership," will exclude the public from the redeveloped area on game days. That includes the expulsion of local high school times for their 10 to 12 games per year, according to the Dorchester Reporter. At the same time, city officials say other stadium uses, such as a track, might see more public use. 

The conservancy and residents say that the project has been moving too fast for them to study and comment, and that the headlong rush violates article 97 of the Massachusetts Constitution.

That's another eyebrow-raising point in the story. Article 97 of the Massachusetts Constitution is worth a read:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

The general court shall have the power to enact legislation necessary or expedient to protect such rights.

In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes.

Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.

Voters approved Article 97 in 1972. That's the same year as the federal Clean Water Act, and about halfway in between the Clean Air Act and Love Canal.

The "right to a clean environment" is a hallmark of contemporary human rights discussion, sometimes grouped in with "third generation" human rights. In this sense, notionally, Massachusetts was ahead of its time.

But like statutory expressions of environmentalism, Article 97 was not understood to ground an affirmative right, rather a negative right to prevent government from repurposing conserved land without legislative approval. The Supreme Judicial Court (SJC) entertained the constraint of Article 97 in cases in 2005 and 2013, but didn't find that the local governments in those cases had dedicated land to public purposes. The SJC did constrain local government in a 2017 case. 

The 2013 and 2017 cases might prove instructive in the White Stadium matter if the case progresses. In Mahajan v. Department of Environmental Protection (Mass. 2013), the court distinguished land taken for "conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources," which triggers Article 97, from land taken urban renewal, that is, "for the purpose of eliminating decadent, substandard or blighted open conditions." In that case, the Boston Redevelopment Authority was able to commit a part of Long Wharf in Boston Harbor to a private redevelopment project without legislative approval under Article 97.

In Smith v. Westfield (Mass. 2016), the court decided that the City of Westfield had dedicated a parcel of land, 5.3 acres comprising a playground and two little-league baseball fields, to serve as a park, so was constrained by Article 97 before the city could build a school there.

In Smith, the court opined that Article 97 would attach only "there is a clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park." The court also acknowledged that the analysis fact intensive.

On the face of it, Smith looks like the better fit with Emerald Necklace. The land is clearly dedicated to park use and has been used as a park. The baseball fields and playground in Smith show that a recreational use can include a structure, such as the stadium.

At the same time, there's a viable counterargument in the re- of the White Stadium redevelopment. The city will argue, I expect, that it's not changing the purpose of the land, i.e., its dedication to recreation. A stadium is and will remain. The city is just improving the land to do recreation better.

The problem then boils down to that "first-of-its-kind public/private partnership": whether the private end of the partnership means that the land is being "otherwise disposed of" within the meaning of Article 97.

I've written about transparency and accountability in foreign development specifically amid the challenges of privatization and quasi-privatization. So it's fascinating, if it shouldn't be surprising, to see this problem arise in my own backyard. I wonder as well whether there ever might be a future for Article 97's purported "right to clean air and water" that amounts to more than a procedural hurdle in property development.

See more about Boston's remarkable 1,100-acre Emerald Necklace park system, designed by architect Frederick Law Olmsted, with Will Lange on PBS in 2014.

The case is Emerald Necklace Conservancy, Inc. v. City of Boston, No. 2484CV00477 (filed as 24-0477) (Mass. Super. Ct. filed Feb. 20, 2024). Emerald Necklace asked for a temporary injunction. Hat tip @ Madeline Lyskawa, Law360 (subscription).