Child labor still plagues chocolate supply chain in West Africa, despite decade of distressing documentaries

From our dining room table, a chocolate bunny left over from the weekend is staring me down.  Two things are keeping me from biting off its smug head.  First, I just got back from a run of only a couple miles, and I feel like I'm breathing through a straw.

Second, earlier today, I watched Chocolate's Heart of Darkness, a study of child labor in the chocolate supply chain.  The 42-minute piece is free on YouTube, posted September 2020.

This English version is credited to German public broadcaster Deutsche Welle (DW), though the film originated with French independent documentary firm Premieres Lignes in 2019.  French journalist and filmmaker Paul Moreira directed.  On YouTube, Chocolate's Heart of Darkness appears as "Bitter Chocolate," which risks confusion, because that is the title of an equally disturbing but different project on the same subject: s2e05 of the Netflix documentary series, Rotten, directed by Abigail Harper and also released in 2019.

Both of these Bitter works update, with precious little progress to report, the sorry state of affairs captured in the 2010 documentary The Dark Side of Chocolate, which was co-directed by Danish journalist Miki Mistrati and American U. Roberto Romano, a photojournalist and human rights activist who passed away in 2013.

Cocoa I photographed in Ghana in 2020.
The DW film depicts industry reliance with some success
in certification tracking in Ghana, but not in Côte d'Ivoire.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

In the last decade, I've refrained from recommending the 2010 docko to students or colleagues, because it's one of those films in which the makers' agenda so powerfully muscles in on the narrative that the viewer is left with reservations over objectivity.  But now, with two more projects in the same vein and all compasses pointing in the same direction, I think it's fair to discount nuanced indications of bias and say that Big Chocolate has a real mess on its hands.

Litigation against American agri-giant Cargill, a key broker in the global chocolate trade, and against Swiss-based multinational Nestlé, over child labor—practically, slavery—sits presently in the U.S. Supreme Court (Cargill, Nestlé at SCOTUSblog).  A decision, due any day, seems likely to kick the claims out for lack of U.S. jurisdiction under the alien tort statute, however much some Justices might have been troubled by what they heard in oral argument in December.

Even if the suits were to proceed in U.S. courts, or in any courts, Chocolate's Heart of Darkness gives a flavor of how hard the claims would be to prosecute.  Abusive child labor is so entrenched in West African forests, and nations such as Côte d'Ivoire so utterly incapable of establishing rule of law in these remote places, that it is scarcely imaginable that cocoa could be harvested any other way.  This is to say nothing of rampant deforestation to meet demand.

The film shows that the certification and tracking mechanisms set up with, let's give the benefit of the doubt, the best of intentions by the corporations to make good on sustainability pledges are so riddled with corruption as to be farcical.  It strains credulity to suppose that transnational companies do not know the reality.  But knowledge is not necessarily culpability.  And this is hardly the only supply chain that leads from Western fancy to catastrophic human toll in the developing world.

I don't think that my chocolate bunny is going to last the week.  But it's going to make me sick in more ways than one.

Arkansas defense of healthcare law invites Supreme Court justices to weigh in on federal preemption

The State of Arkansas defended a state healthcare law in the U.S. Supreme Court Tuesday.

The state argued against federal ERISA and Medicare part D preemption of state regulation of pharmacy benefits managers, the companies that manage most Americans' prescription drug benefits.  The case affords an opportunity to see what newer justices have to say about preemption.

Preemption is a curious area of law.  Ostensibly statutory interpretation, it has overtones of federalism, as judges are called on to chart the scope of congressional intent as exercised in a power domain shared with state legislatures.  Confounding theories of interpretation, textualism is often insufficient to resolve preemption problems, because statutory schemes, such as the framework for employment-benefit regulation, may be left ambiguous as to what the scheme does not regulate, yet can be undermined by state laws with incompatible purposes.  As a result, preemption cases in the U.S. Supreme Court have been known to render splintered decisions and odd-bedfellow pairings of justices.  More than once, preemption precedent has been criticized as inconsistent and messy.

In an op-ed in The Arkansas Democrat-Gazette (ADG) in 2015, I wrote that Arkansas Act 900 raised serious and compelling questions of federalism.  I didn't pick sides—indeed, each side claims to be on the side of consumers—but I did describe the Arkansas Attorney General's dismissive response to challenge of the statute as glib.  The Eighth Circuit subsequently held the law preempted.  Forty-five states, D.C., and the Trump Administration have sided with the appellant AG, according to the ADG.

The case is Rutledge v. Pharmaceutical Care Management Association, No. 18-540 (argued U.S. Oct. 6, 2020).  Ronald Mann wrote an excellent analysis of the case, on the merits and implications, at SCOTUSblog.

Sullivan publishes on ethics, criminal appeals, and seeking Supreme Court certiorari

My friend and colleague Professor J. Thomas Sullivan has published, Ethical and Aggressive Appellate Advocacy: The Decision to Petition for Certiorari in Criminal Cases, 51:3 St. Mary's L.J. 585 (2019).  The article is especially salient in light of the U.S. Supreme Court's recent decision requiring unanimous juries to convict in criminal trials for serious offenses.  Here is the abstract.

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant’s chances for obtaining relief and is what might be characterized as the “final tool” in the appellate lawyer’s “toolbox.” There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client’s options for relief in the direct appeal and post-conviction processes.

As Sullivan explains in footnote:

This is the third in a series of articles addressing appellate practice from a different perspective than that usually taken by appellate courts with respect to counsel’s duty in representing the client. It differs from Chief Justice Warren Burger’s approach to attorneys serving as an officer of the court, as he expressed while writing for the majority in Jones v. Barnes, 463 U.S. 745 (1983). For the author’s prior articles addressing a more aggressive approach to appellate advocacy than that taken by the Jones majority, see J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: Confronting Adverse Precedent, 59 U. Miami L. Rev. 341 (2005), and J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: The “Ethical” Issue of Issue Selection, 80 Denv. U. L. Rev. 155 (2002).

See also the multi-talented Professor Sullivan recently playing Taps.

Product liability, negligence claims underlie Supreme Court cases with jurisdiction, First Amendment issues

Two cases filed in the U.S. Supreme Court arise out of tort claims, if presenting more immediate questions in other doctrinal veins.  Recent media coverage of each offers worthwhile observations.

U.S. Supreme Court denies government bid to argue for corporate jurisdictional defense in product liability case

Historic Ford Motor Assembly Plant in California
(Almonroth CC BY-SA 3.0)

Ford Motor Company v. Montana Eighth Judicial District Court, No. 19-368 (SCOTUSblog), No. 19-368, might be one for the civil procedure casebooks.  It is consolidated with a similar case, Ford Motor Co. v. Bandemer, No. 19-369 (SCOTUSblog).  In Montana Eighth, a Montana driver died after tire treads separated on her Ford Explorer on a state highway.  In Bandemer, the plaintiff-passenger suffered severe brain injury after the airbag failed to deploy in a Ford Crown Victoria that rear-ended a snowplow in Minnesota.  Plaintiffs in both cases sued Ford upon theories including strict product liability and negligence.  Ford sells cars in both Montana and Minnesota, but not these cars; they wound their way to those states through changes in ownership.  Based on that attenuation, Ford contested personal jurisdiction and lost in both state supreme courts.

U.S. S.G. Noel Francisco

Darcy Covert and A.J. Wang for Slate highlighted an interesting development behind the scenes in the Ford cases: The Supreme Court denied a motion by the U.S. Solicitor General to participate in oral argument.  As Covert and Wang observed, the Supreme Court "[f]or roughly the last decade, ... [has] permitted the solicitor general to weigh in on any case he wants."  That permissiveness exaggerated a trend in the waning decades of the 20th century in which the SG intervened in cases with diminishingly credible legitimate federal interest.  The SG's cause for intervention has become more about politics, or even, my words, the realpolitik of corporatocracy, than about interests of federalism or constitutional law.  Witness the Ford cases, in which the SG hardly articulates any credible rationale to thinly veil the executive's alignment with your friendly neighborhood (non-governmental) U.S. Chamber of Commerce to make it that much harder for a consumer plaintiff to sue a manufacturer.

Slate's headline described the Supreme Court's denial as "a small step in the direction of judicial independence."  Let's hope so.

Black Lives Matter petitions U.S. Supreme Court after Fifth Circuit 'bobbled' freedom-of-assembly defense in negligence case

DeRay Mckesson (Jay Godwin, LBJ Library)

Mckesson v. Doe, No. 19-1108 (SCOTUSblog), not yet granted cert., is likely to turn up in a lot of books—it's already rounded the circuit in legal op-eds—because of its rich social dimensions.  But the core legal problem is pretty straightforward in its articulation.  Doe was a police officer severely injured when a Black Lives Matter protest, blocking a Baton Rouge highway, turned violent.  Doe sued DeRay Mckesson for negligence as a protest organizer, alleging that Mckesson reasonably should have foreseen injury-causing violence.  (Mckesson played a collateral role in another First Amendment case, Johnson v. Twitter (Complaint; read more at The Hill), which I talked about at Amity Dubai last summer on the subject of social media-related liability.)

At first blush, the case looks something like one of the entrants in the unsettled First Amendment genre of negligent "inducement to violence."  In one of the earliest such cases in the modern civil rights era, Weirum v. RKO General, Inc., 15 Cal. 3d 41 (1975), a radio DJ induced first arrival at a giveaway point, resulting in a fatal car accident.  For the California Supreme Court, famous Justice Stanley Mosk summarily rejected the DJ's First Amendment defense: "The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act."

Justice Mosk might have been right on those facts, but his unwillingness to recognize a slippery slope had to have been willful ignorance.  The more familiar "clear and present danger" (or "incitement to imminent lawless action") doctrine and the much debated "true threat" doctrine in First Amendment law more plainly demonstrate the same problem.  It's not at all clear that the RKO DJ "inflict[ed]" physical injury, and doesn't the sticks-and-stones maxim posit that that's impossible?  Cf. James 3:6-8.  I've seen many scholars try to tackle the Weirum problem; they've all concluded either that the case was rightly decided but at the extreme of a spectrum, or that it was wrongly decided, despite the DJ's socially objectionable conduct.

Black Lives Matter protest in Baton Rouge, La.
(Antrell Williams CC BY-ND 2.0)

The First Amendment speech-and-assembly activity in Mckesson is more attenuated causally from physical injury than the radio broadcast in Weirum.  More time, space, and independent decision-makers separated defendant-organizer Mckesson from violence against plaintiff-Officer Doe than separated the RKO DJ from his driving listeners.  And in a way that is difficult and hazardous to quantify, if nonetheless important, much greater political value—at the core of First Amendment protection—attaches to the organization of a protest against the government than to a commercial radio promotion.

Mckesson must be free of negligence liability, even if the right path to get there in First Amendment jurisprudence remains to be worked out.  Professor Eugene Volokh in Reason suggested a smart fix in the firefighter rule.  That rule's nuanced underpinning in public policy invites the First Amendment to put a thumb on the scale, and such clever fixes—including legal causation, for foreseeability, itself—have helped to resolved negligent-speech injury cases before—in a Fifth Circuit case in which now-Chief Justice Roberts represented the media defendant.

The view I want to highlight here, though, is that of University of Baltimore Law Professor Garrett Epps in The Atlantic, who attacked the problem more directly through free-assembly precedent grounded firmly in civil rights-era protection of boycotts.  To Epps's view, the "rogue" Fifth Circuit "has had four chances to apply a foundational First Amendment precedent, and has bobbled it each time."  I hope the Supreme Court sees it the same way.


Ford Motor Co. will be scheduled for oral argument in fall 2020.  McKesson is pending cert. consideration this spring; if the petition is granted, the case also will be scheduled for argument in the 2020-21 term.

Falmouth takings case affords opportunity to plan for sea-level rise, if officials take notice, scholars write

In September, I wrote about a Massachusetts takings case pending petition for review to the U.S. Supreme Court. The Court denied review, so the Massachusetts Appeals Court decision that vacated a jury award to the takings claimant stands. My colleagues Professors Chad McGuire and Michael Goodman have written for CommonWealth Magazine about the case's potential implications for climate change in combating sea-level rise.

McGuire and Goodman described the case:

In December the U.S. Supreme Court denied a petition for review by Janice Smyth of Falmouth on the question of whether the Falmouth Conservation Commission, when denying a permit to develop her coastal property in Falmouth, exacted a de facto “taking” (often referred to as a regulatory taking, or inverse condemnation). Smyth inherited the coastal property from her parents but, by the time she took action to exercise her right to develop that land in 2012, she ran afoul of the no-development zone enacted locally to mitigate erosion and coastal land loss experienced over recent decades.

They conclude that government leaders should use the latitude afforded them by this precedent to plan for the coastline impact of climate change while "manag[ing] the consequences for coastal land values, local real estate markets, and the tax base of our coastal municipalities."  Read more.

It's not just whistleblower law; First Amendment public employee-speech doctrine is in disarray

You might have heard some wrangling in the news about whistleblowers.  They're all the rage, lately, even here and there on this blog.

A big problem for whistleblowers in the public sector is that the U.S. Supreme Court has clearly held that there is no First Amendment protection for whistleblowing in the United States.  So public employees who blow the whistle on public misfeasance or malfeasance have to be prepared to pay for their good intentions with their livelihoods.

Notably, that was the Court's holding in 2006, when a lawyer, Richard Ceballos, suffered retaliation in the office of L.A. District Attorney Gil Garcetti for having disclosed to criminal-defense counsel that a sheriff misrepresented facts in a search warrant affidavit, despite having been admonished to remain silent.  Remember that when Gil Garcetti runs for President.  Even when there is statutory protection, as in the case of that federal whistleblower whom everyone's been talking about, it is extremely difficult to police prohibitions on retaliation, thus the whistleblower's present penchant for anonymity. 

In a recent opinion column in The Hill, Independent Institute Policy Fellow Ronald L. Trowbridge, Ph.D., bemoaned this sorry state of constitutional whistleblower law since Garcetti.

Right.

Well, welcome to the table, Dr. Trowbridge.  Some of us transparency-and-accountability types in the public sector have been living, working, and biting our tongues under Garcetti for more than a dozen years. 

I don't concede that Garcetti applies to me; a footnote in the opinion left the question open as a matter of constitutional law for academics, who sit in a weird place, constitutionally speaking.  I've dared to offer my own constructive criticism here and there.  But often, I stay silent.  And by often, I mean a lot.  For example, you want to know what goes on at a public school inside the ABA accreditation process?  Well wouldn't you, then.  How nice for you.  Talk to the hand.

What we need is not another op-ed bemoaning Garcetti.  We need a way forward.

In 2016, Jerud Butler was reprimanded and demoted in his job at the San Miguel County, Colorado, Road and Bridge Department after he testified truthfully at a child custody hearing involving his sister-in-law and her ex-husband, another employee at the San Miguel County Road and Bridge Department.  His testimony, in a personal capacity, incidentally touched on the hours of operation of the department.  The Tenth Circuit rejected Butler's bid for First Amendment protection, finding Butler an employee of the government, like an employee anywhere else, subject to the whimsy of the employer.

Butler was not a whistleblower.  But Garcetti was not a watershed moment.  Rather, Garcetti was a symptom of an employee-speech doctrine in First Amendment law that has been badly broken since it was invented in Pickering v. Board of Education in 1968.

On behalf of "First Amendment Scholars," including me, Professors Lisa Hoppenjans and Gregory P. Magarian and their student team at the Washington University First Amendment Clinic at St. Louis University Law School filed an amicus brief in support of U.S. Supreme Court cert. in Butler (No. 18-1012).  Butler has got to be a mistaken outcome, even if we think that whistleblowing should be a statutory matter rather than a constitutional right, even under Pickering.

Like Dr. Trowbridge, I hope the Supreme Court at some point will realize the work that needs to be done to make sensible public-employee speech doctrine, whether fixing what we've got or starting from scratch.

Meanwhile I'll take anything that chips away at Garcetti.

Scholar-amici on the Wash. U. brief in Butler included: RonNell Andersen Jones, Associate Dean of Research & Teitelbaum Chair of Law, University of Utah S.J. Quinney College of Law; Cynthia Boyer, Associate Professor, Institut Maurice Hauriou (Université Toulouse Capitole)/Institut National
Universitaire Champollion; Alan K. Chen, Professor of Law, University of Denver Sturm College
of Law; Eric B. Easton, Professor of Law Emeritus, University of Baltimore School of Law; Craig B. Futterman, Clinical Professor of Law, University of Chicago Law School; Heidi Kitrosser, Robins Kaplan Professor of Law, University of Minnesota Law School; Lyrissa Lidsky, Dean and Judge C.A. Leedy Professor of Law, University of Missouri School of Law; Gregory P. Magarian, Thomas and Karole Green Professor of Law, Washington University in St. Louis School of Law; Helen Norton, Rothgerber Chair in Constitutional Law, University of Colorado School of Law; Richard J. Peltz-Steele, Chancellor Professor, University of Massachusetts Law School; Tamara R. Piety, Professor of
Law, University of Tulsa College of Law.

Amici aligned with First Amendment Scholars in Butler included the National Whistleblower Center, the Center for Constitutional Jurisprudence, the Duke Law School First Amendment Clinic, and the Government Accountability Project.

For Veterans Day, let's push through Congress bipartisan Feres doctrine waiver for medmal claims

Veterans Day Painting.  (Details at end of story.)

The Federal Tort Claims Act (FTCA) authorizes tort actions against the U.S. federal government, waiving the government's sovereign immunity in its courts, subject to tight constraints.  The FTCA yields to the Feres doctrine, a rule of law named for the Supreme Court case that recognized it in the years following World War II.  The Feres doctrine disallows lawsuits by active-duty military for personal injury or death.  The Feres doctrine makes sense on the face of it, lest every injury in combat become a tort claim under the laws of the states. 

But the Feres doctrine's logic breaks down at the margins.  Increasingly in recent decades, healthcare has become big business and very expensive.  Military personnel have become dependent on the government for routine care.  And cases have been reported of medical malpractice at government hospitals: cases that unquestionably would yield medical malpractice claims in the comparable civilian context.  Insofar as the Feres doctrine is supported by a sort of "assumption of risk" by soldiers who go off to war, that theory feels ill fit to stateside medical mistakes in childbirth or prenatal care, or failure to diagnose terminal conditions. 

In spring 2019, the U.S. Supreme Court denied cert. in a challenge to this operation of the Feres doctrine (case at SCOTUSblog; details at and Stripes).  CBS Morning reported in August on the story of Sfc. Richard Stayskal, a Green Beret, now terminally ill, whose cancer was misdiagnosed, and on his emotional congressional testimony.

Bills (S.2451, H.R.2422) (not the first of their kind) that would authorize medmal tort claims for military personnel are stalled in House and Senate committees.  Fox46 Charlotte recently called out Sen. Lindsey Graham as an obstacle in the Senate for the bipartisan Sfc. Richard Stayskal Military Medical Accountability Act of 2019.  I hope Veterans Day might occasion placement of this fix on the short list of what Congress should be doing besides playing politics for the cameras this week.

(Image: Caroline Beattie, a senior at Manatee School for the Arts in Palmetto, Fla., painted a portrait of her Economics and Government teacher, for the school's Veterans Day program. Her teacher, Maj. Jennifer Pearson with the Air Force Reserve’s 920th Rescue Wing at Patrick Air Force Base, Fla., photographed the painting Nov. 6, 2019.  U.S. Air Force photo by Maj. Jennifer Pearson.)

Takings are out of control; whither went democracy?

My colleague Prof. Ralph Clifford is cited and quoted in this item from the Pacific Legal Foundation. The PLF opined with disapproval upon takings problems in which the government essentially exploits the takings power after discounting property value by tax liability, a one-two punch, kicking the owner to the street.

The abuse is compounded by the continuing latitude of governments to line the pockets of private investment with the proceeds of takings, upheld in Kelo v. New London (2005).  See also the award-winning documentary Little Pink House (2017), and a mouth-watering Kelo epilog.

This on the heels of discussion at UMass Law last week of a U.S. Supreme Court cert. petition filed in Smyth v. Conservation Commission of Falmouth (Mass. App. Ct. Feb. 19, 2019), now No. 19-223 (pet. filed U.S. Sept. 19, 2019), in which the Massachusetts Court of Appeals rejected a takings claim upon denial of a building permit.  (HT@ Dean Eric Mitnick.  The court heard arguments in the case at UMass Law last year.)

One doesn't have to look far nowadays for abuses of governmental power that are bipartisanly objectionable yet persist to the shameless aim of making the rich richer.  I'm presently reading Amor Towles's A Gentleman in Moscow, a fiction about the aftermath of the Russian revolution; when you're a libertarian and you start thinking "those Bolsheviks weren't all bad," something has gone awfully wrong in America.

Here is an excerpt of the PLF item:

Uri is a retired 83-year-old Michigan engineer, and in 2014 he accidentally underpaid, by $8.41, the property taxes on a home he rented out. But instead of notifying him of the issue and helping him, his county government seized the home and sold it at auction for $24,500. The county then kept all the proceeds—leaving Rafaeli with nothing.
All for an 8 buck mistake.

That may sound like an extreme and unusual case. But in fact, this type of tax forfeiture abuse, called home equity theft, is completely legal in 13 states.

In Alabama, Colorado, Maine, Massachusetts, Michigan, Minnesota, New York, North Dakota, Oregon, and Wisconsin, governments not only keep the value of unpaid property taxes and interest from the sale of a seized home—they also keep the surplus value rather than returning it to the property owner. In Arizona, Colorado, Illinois, Massachusetts, and Nebraska, private investors often reap the gains of home equity theft.

Here is the abstract of Prof. Clifford's 2018 study:

Prof. Clifford

The predominant method for collecting delinquent real estate taxes in Massachusetts is the use of the “tax deed” as authorized by Chapter 60, Sections 53-54. Under the authorized procedures, each municipality’s tax collector can execute and record a deed that transfers fee simple title to the real estate to the municipality subject to the taxpayer’s statutorily created redemption right. If the redemption right is or cannot be exercised, all of the taxpayer’s rights in the property, as well as other’s rights created by encumbrances such as mortgages, are terminated by the foreclosure process provided for in the statute. Importantly, the municipality does not obtain title to the taxpayer’s land by foreclosure; instead, it merely frees itself of any remaining claim by the taxpayer.

The problem with the tax deed procedure is that it fails to provide both procedural and substantive due process to the taxpayer. Procedurally, although adequate notice is given, title to the taxpayer’s real estate is taken by the government without a hearing. Based on an unreviewed decision by a municipal tax collector, the taxpayer immediately loses title to the land. Substantively, by using a tax deed, the municipality engages in the taking of property without providing reasonable compensation. The value of the land taken for payment of the tax debt is not evaluated in the context of the debt owed. Empirical evidence shows that the property’s value significantly exceeds the debt owed, giving the municipality the ability to collect almost fifty dollars for every dollar of delinquent real estate tax owed, on average. Each year, approximately $56,000,000 is unconstitutionally appropriated from taxpayers. This article explores these problems. 

And here are the questions presented in the Smyth petition:

In Penn Central Transp. Co. v. N.Y., 438 U.S. 104 (1978), this Court held that Fifth Amendment “regulatory takings” claims are governed by three factors: the “economic impact” of the challenged regulatory action, the extent of interference with a property owner’s “distinct investment-backed expectations” and the “character of the governmental action.” Id.

Falmouth, Mass., property, posted by Frank Haggerty to Patch.

The Massachusetts Appeals Court applied the Penn Central factors to hold that Respondent Town of Falmouth (Town) did not unconstitutionally take Petitioner Janice Smyth’s (Mrs. Smyth) property by denying a permit to build a home. Mrs. Smyth’s parents purchased the lot in 1975 for $49,000 ($216,000 in today’s dollars), but did not develop it. In the meantime, the entire subdivision was developed. When Mrs. Smyth inherited the lot and sought to build, the Town refused to grant a permit based on regulation post-dating her interest. The denial left Mrs. Smyth’s lot without any possible use except as a “playground” or “park,” and stripped it of 91.5% of its value. Yet, the court below held that none of the Penn Central factors weighed in favor of a taking under these circumstances.

The questions presented are:

1. Whether the loss of all developmental use of property and a 91.5% decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central.

2. Whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction?

3. Whether the Court should excise the “character” factor from Penn Central regulatory taking analysis.

My Comparative Law class is reading about democratic deficit in Europe.  It's a good time to remember that the study of comparative law can be as much about similarities as differences.

U.S. Supreme Court widens tort liability exposure of New Deal-era, state-owned enterprises

On April 29, the U.S. Supreme Court held against the Government by reversing and remanding unanimously in Thacker v. Tennessee Valley Authority, No. 17-1201 (Oyez), a negligence claim arising under the Federal Tort Claims Act of 1946 (FTCA).

Per Justice Kagan, the Court held that the test for sovereign immunity in tort claims against New Deal-era "sued and be sued" entities such as the TVA is twofold.  First, the court must determine whether the conduct of the defendant was commercial or governmental.  Sovereign immunity can attach only to governmental conduct.  Second, if governmental, the court must determine whether suit is clearly inconsistent with constitutional or statutory scheme, or suit clearly would threaten interference with the governmental function (the test of FHA v Burr (U.S. 1940)).  Only in those narrow cases—much narrower than the statutory discretionary function exception to FTCA's waiver of sovereign immunity—does sovereign immunity attach.

The Court's decision hews to the plain text of the TVA Act of 1933 and represents a win for plaintiffs.  The case also throws into doubt other lines of federal case law in which the courts have borrowed and extended immunity concepts by analogy to the FTCA to shield government actors from liability in other statutory contexts.

You can hear my verbal review of the case at the Federalist Society's SCOTUScast.  Hear my pre-decision, post-argument analysis on SCOTUScast and view pre-argument analysis with engaging visuals from the Federalist Society on SCOTUSbrief.  The case is on SCOTUSblog with record links and informative analysis by Gregory Sisk.  Find the opinion and oral argument at Oyez.

SCOTUS, climate change, drug addiction, immigration highlight law and policy issues at UMass colloquium

Today at the Fifth UMass Interdisciplinary Legal Studies Colloquium in Boston, scholars talked about a range of intriguing work, from politics to climate change to drug legalization, being done across the University of Massachusetts campuses—Amherst, Boston, Dartmouth, and Lowell, and Law (at Dartmouth) and Medical (at Worcester).  Here’s a taste.

View of Boston from One Beacon Street today.  "Back Bay is called 'Back Bay' for a reason," UMass Dartmouth Professor  
Chad McGuire said, referring to reclaimed land that is threatened by rising sea levels.

Law and Policy Inside the Beltway
Panel 1—Moderated by yours truly

Queer Sacrifice in Masterpiece Cakeshop, Jeremiah Ho, UMass Law.  Professor Ho explicated his theory of “interest convergence,” and how a lack thereof explains the result in the U.S. Supreme Court’s recent decision in the LGBTQ-rights cakeshop case.  His research shows how images—sometimes literally—of gay identity have informed public and judicial perception of LGBTQ rights cases.  Three more cases lie on the horizon, in the Court’s next term, Ho said, so stay tuned.   Meanwhile preview his "Queer Sacrifice" work, just out in the Yale Journal of Law and Feminism, at SSRN.

Can Presidents Influence Public Attitudes Toward the Supreme Court? Evidence from a Survey Experiment, Paul M. Collins, Jr. (blog), Department of Political Science, UMass Amherst.  Collins’s long-term research digs deep into how statements and action by the President of the United States exert influence over public perception of the U.S. Supreme Court and its decisions.  What the President says matters; consider, Collins proffers, the White House has a whole office dedicated to SCOTUS spin.  Collins also notes that low public knowledge of the Court is a factor in allowing public opinion to be influenced by forces external to the Court.  I can’t help but think about the Court’s intransigence on cameras and public access.  Anyway, Collins has discovered that the public is more easily influenced on “low salience” issues, but less so on “high salience” (I’d say “hot button”) issues, such as immigration.

On the Supreme Court of the United States of America (and Congruent Agencies and Ministries in the Term of President Donald Trump), Judge Francis Larkin, UMass Law.  Judge Larkin shared observations of recent events in President-Court interaction.  He recalled FDR’s Court-packing plan, relative to its recent resurgence in politics (e.g., WaPo).

Forcing Disclosure, Justine Dunlap, UMass Law.  Professor Dunlap is looking at mandatory disclosures under Title IX, especially faculty duties.  She observes that the evolution of Title IX over recent decades, under administrations from both sides of the aisle, have fairly sought to respond to a real problem of unredressed sexual harassment and assault on college campuses.  But the responses have not always been well tuned.  And mandatory reporting, however well intentioned, can put faculty in the impossible bind of having to betray student trust.  (Professor Julie Baker in Q&A aptly noted also that the consequences of ill-tuned reporting schemes for accused perpetrators are not always conducive to dispute resolution or justice.)  Dunlap talked about a system being implemented at the University of Oregon that contemplates a third class of potential “reporter”—rather than all or nothing, a “student-directed reporter.”

Recovery, Resiliency, and Equality in Economic Development
Panel 2—Moderated by Professor Justine Dunlap, UMass Law

Opening for Business: Tax-Haven Economy and the State of Exception in Puerto Rico, Jose Atiles, Department of Political Science, UMass Amherst.  Professor Atiles is working on Puerto Rico and U.S. development strategies.  He explained that there are two prevalent approaches to development policy concerning the island, one the “blank canvas” approach, which encourages recovery investment on the selling point that, more or less, my words: there’s nothing there at present; two the “PR is open for business” approach, which seeks to exploit the island’s legal status as a tax haven.  Both of these representations are animated by a “neoliberal-colonial rationality,” and that troubling mindset is reflected in the law that facilitates these strategies.

I’m reminded of the colonial terra nullius doctrine with respect to the blank canvas, and the local-policy-characteristic Everett casino debate with respect to “open for business.”  Puerto Rico and its people are not our offshore plaything.  In Q&A, I asked Atiles what it would take for us to start thinking about PR more like we do Missouri.  Statehood and independence each have advantages and drawbacks, which he explained summarily; what won’t save PR, he said, is the status quo.

A “Least Regrets” Framework for Coastal Climate Change Resiliency Through Economic Development, Chad McGuire and Michael Goodman, College of Arts and Sciences, UMass Dartmouth.  Professor McGuire continues his renowned work on environmental conservation and climate change, and now he’s brought public policy numbers wizard Professor Goodman (also president of the UMass Dartmouth Faculty Senate) onto the team to look at the economics.  They’re attacking the problem of aligning shorter-term economic incentives with the longer-term public interest in saving the human race from extinction.

I just saw Dan Gardner on The Daily Show talking to Roy Wood Jr. (video embedded below) (let me remind everyone that I shook Roy’s hand in East Providence) talking about how our “caveman” brains don’t well process the threat of climate change because it’s too abstract, that we need more urgent messaging.  McGuire and Goodman have it.  As I’m wearing a sweater in May, McGuire observed: “Spring has become less of a thing, and winter moving into summer is becoming more of a thing.”  We’ve lost 15-30 days of winter in New England, he shows with data, and seasonal transitions are becoming more abrupt.  Then he directs us toward the view of Boston from our huge glass windows here in the 32nd floor of One Beacon Street.  “Back Bay is called ‘Back Bay’ for a reason,” McGuire said.  Boston sits on filled-in bay.

At lunch, McGuire told me about rubber buffers that run through Boston streets to absorb shifts in the aqueous earth beneath.  And he told me about the latest alarming findings from the Ross Ice Shelf.  Our society has invested a great deal in developing low-lying land, and we’re going to have reconcile that policy with our climate game.

Human Rights Responses to Economic and Social Inequalities—A Book Proposal, Gillian MacNaughton, School for Global Inclusion and Social Development, UMass Boston.  For my money—both figuratively and literally—Professor MacNaughton’s work is what we need to save humanity from catastrophe—after and assuming we figure out how to survive climate change.  MacNaughton takes what we know and bemoan about inequality of wealth and opportunity in the United States and runs writ large with the problem.  As she wrote in her abstract: “The Global Wealth Report 2017 reveals that the wealthiest 1% of the global population owns 50% of global assets, while the poorest 50% owns less than 1%.”  Building on the U.N. Sustainable Development Goals, she plans to propose putting some punch behind international treaty guarantees of social and economic equality, such as we might start to address this problem on the global level.  I’ve often lamented that our increasingly disparate economic stratification will be our undoing in the United States if we don’t address it.  It’s worth being reminded how much more desperate the situation already is worldwide.  See also Professor MacNaughton's recent co-edited book, Economic and Social Rights in a Neoliberal World (Cambridge University Press 2019).

Drug Use and Abuse, and the Criminal Justice System
Panel 3—Moderated by Professor Julie Baker, UMass Law

Is Marijuana the Gateway Drug? Maybe Not, But Its Legalization Could Be, Nikolay Anguelov, College of Arts and Science, UMass Dartmouth.  Professor Anguelov is known to many of my readers and former students as the author of the 2015 book, The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society (CRC Press) (Amazon).  I have heard him speak many times to awestruck and sometimes squirming audiences about the connection between their affordable clothing and Bangladesh waterways poisoned with dye and arsenic.  Anguelov is more recently author of From Criminalizing to Decriminalizing Marijuana: The Politics of Social Control (Lexington Books 2018) (Amazon).  Anguelov is now fine-tuning his formidable research into marijuana use.  His early data invite the conclusion that legalization—which I as a libertarian have favored—might be contributing to the opioid epidemic at least by “contributing to the cultural normalization of drug use and experimentation.”  Ruh-roh, Shaggy.  This is going to require further research, and I’m anticipatorily squirming in my H&Ms.

Recovery Coaches in Opioid Use Disorder Care, Matthew Maughan, UMass Medical.  When opioid addiction turns to recovery, attorney Matthew Maughan is the policy guru to turn to.  Informed by his multifaceted experience and research, he explained the role and peculiar success of the “recovery coach.”  It might be awkwardly unorthodox in terms of developing a large-scale model, but sometimes a block grant for an activity tailored to a person’s specific needs offers the best hope for recovery and might as well be cost effective.  Maughan recounted the story of a recovery accomplished through mental clarity achieved on the water on a kayak, under the guidance of a recovery coach.  That’s got to cost less than any bill I’ve ever gotten from a medical clinic.

Locating Cannabis Equity: Defining Areas Impacted by Drug Criminalization, Michael Johnson, Professor and Chair, McCormack Graduate School, UMass Boston, and Jeffrey Moyer, doctoral candidate in public policy, UMass Boston.  Moyer is working with Professor Johnson to study the intersection of enforcement and anti-discrimination.  Specifically, he asks whether the Massachusetts “Cannabis Control Commission’s use of a race-neutral variable is effective in selecting areas disproportionately impacted by criminalization.”  Part of the work has entailed mapping all drug arrests, which generates some compelling graphics when overlaid with demographic data.  I am reminded of being a journalism intern at WJZ-TV in Baltimore in the early 1990s, when we made an analog map—this was when we were still working on DOS-based computers—literally putting color pushpins in a map of Baltimore to look at the coincidence of murders with factual and demographic elements.  That was a time when we were first talking about the problem of race and policing “where the crime is.”  We also walked five miles to school, uphill both ways.

Moyer shows analysis of geographic data on police enforcement, obtained in part through a public record request.

To Plea or Not to Plea: A Virtual Simulation of Plea-Bargain Scenarios, Miko M. Wilford, Psychology Department, UMass Lowell; Annabelle Frazier, doctoral candidate in applied psychology, UMass Lowell; Kelly Sutherland, doctoral candidate in applied psychology and prevention science, UMass Lowell.  With doctoral candidates on a new applied psychology track at UMass Lowell, Professor Wilford is taking a behavioral look at plea bargaining, that irksome feature of the criminal justice system that we don’t like to talk about, even while we know it results in some guilty pleas calculated to avert draconian outcomes (my take).  Really they’re looking at the research of plea bargain research, trying to refine how we learn about people's decision-making processes in these high-stakes circumstances.  Perhaps no surprise once you think about it, it is difficult to simulate having so much at stake with volunteers in psychology-lab experiments.  The team is working on new, high-tech models using animations to engender empathy and generate better results.  See more at the project website, Pleajustice.org.

Personal Rights at the Borders

Panel 4—Moderator: Misty Peltz-Steele, UMass Law

Controlling Asylum: A Genealogical Analysis of Gender and Race Intersectionality, Phil Kretsedemas, College of Liberal Arts, UMass Boston.  Professor Kretsedemas is studying the status of domestic violence survivors and Latin American asylum seekers relative to Matter of A-B, an AG-Sessions opinion “that dramatically curtails asylum protections for survivors of domestic violence, and for many other people who have been persecuted by non-state actors.”  A U.S. District Court has lately pushed back on Sessions’s conclusions, Kretsedemas said, as he investigates the problem from critical dimensions of gender and racial equality.  Kretsedemas’s approach is further informed by comparative law, as he draws on parallel legal perspectives from foreign tribunals, including the U.K. House of Lords, and from parallel cultural perspectives, such as Guatemalan views on gender roles within families.  Present policies, focusing for example unduly on familial cohesion, have gravely injurious impact, for example failing to protect women from female genital mutilation.  Kretsedemas locates these policies in a context that includes family separation, though the latter issue has garnered greater public attention.

Troubling Bodies: The Office of Refugee Resettlement and the Unaccompanied Pregnant Teen, Shoshanna Ehrlich, College of Liberal Arts, UMass Boston.  Also examining a perhaps under-recognized issue within our vast immigration policy debate, Professor Ehrlich is studying the federal government’s “literal refusal to release [young women] from . . . custody so they may access abortion care,” plainly violating their civil rights, Ehrlich asserts.  Even the U.S. Government waived argument in the courts as to whether the teens involved here enjoy U.S. constitutional rights.  Yet in government memos discovered in ACLU litigation, Ehrlich shared in her presentation, Scott Lloyd, director of the Office of Refugee Resettlement (ORR), opined that abortions desired even by teens impregnated by rape are not in the young women’s best interests.  Lloyd was removed from his post and “transferred to HHS’s Center for Faith and Opportunity Initiatives,” Rolling Stone reported in November 2018.  He was later summoned to testify in Congress about family separations, Politico reported in February 2019.  Ehrlich told of interviewing parents the government separated from their children, and the trauma that resulted, wondering how the government could at the same time justify refusing abortions on the rationale that mothers should not be separated from their unborn children, despite their personal circumstances and decisions.