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

Tuesday, November 10, 2020

Laws suspending driver licenses for fines need reform

Spencer K. Schneider, a 3L at UMass Law and teaching assistant in my Torts I-II classes, has authored an article for the National Lawyers Guild Review.  He examines state systems that suspend driver licenses upon unpaid fines and their perversely circular detrimental impact.  He concludes that constitutional challenges to the systems don't hold water, but that they should be reformed as a matter of sound legislative policy.  Here is the abstract.

Forty-three states have, or previously had, some version of a driver’s license suspension program. These programs are shown to have disastrous financial effects on the lives of those who cannot afford the fines inherent in them. Challenges to such license suspension schemes have been brought throughout the United States but have been largely unsuccessful. Where relief ultimately may be found is in state legislatures or city governments. When those bodies discover that, although these programs are in fact valid and constitutional, many of them have such detrimental and long-term impacts on so many citizens, they ultimately result in more harm than good. This realization has led many states to experiment with changes to, or repeals of, their driver’s license suspension programs with varying success. However, many states still rely on the fines levied by these programs and there is a legitimate argument that the programs are imposed to keep dangerous drivers off the street. Ultimately, this is an issue that arose from legislation and, despite finding its way into the court system, must be solved with legislation.

The article is Spencer K. Schneider, The Wheels on the Bus: The Statutory Schemes that Turn Traffic Tickets into Financial Crises, 77:2 Nat'l Law. Guild Rev. 81 (Summer/Fall 2020).


Monday, October 19, 2020

Court: Irish officials must justify non-disclosure under FOIA exemption for commercial information

Ireland Supreme Court chamber (Michael Foley CC BY-NC-ND 4.0)
In two judgments in late September, the Supreme Court of Ireland ruled that Freedom of Information Act (FOIA) of 2014 exemption for confidential commercial information is not mandatory and that public entities relying on the exemption "must explain why the public interest does not justify release."

In both cases, public entities responding to record requests had been permitted to rely on the prima facie application of the exemption.  That approach fell short of the Irish FOIA's legislative command, the Supreme Court reasoned, because the record requesters were given no information with which to test the validity of the exemption.  The Supreme Court reversed and remanded.

Federal and state FOIAs in the United States also exempt from disclosure confidential information that private entities supply to government when disclosure would jeopardize the private entity's competitive position.  The exemptions operate also to shield public information from disclosure that would jeopardize the government's own competitive position as an actor in the private marketplace.

The U.S. FOIA does not, and state FOIAs typically do not, require that a public agency independently test confidential-information exemption against the public interest in disclosure, essentially second-guessing private owners' confidentiality designations.  To the contrary, legislative exemptions in some states are mandatory, and not, as U.S. FOIA exemptions are, committed to administrative discretion.  Current federal policy permits the disclosure of some statutorily exempt records, but the U.S. Department of Justice (DOJ) counsels agencies to engage in "full and deliberate" analysis of competing interests.  As to federal exemption 4, for confidential information, the DOJ has opined that such information "would not ordinarily be the subject of discretionary FOIA disclosure."

University College Cork, 2019 (Michael O'Sheil CC BY-SA 4.0)
However, unlike U.S. FOIA exemption 4 ("trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4)), the Irish exemption for confidential information is limited by a "public interest override."  According to the Irish law, the exemption does not apply when according to the agency "head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."  Public interest overrides favoring disclosure are uncommon in U.S. access-to-information law, except in balancing analyses involving personnel records.

Journalist Gavin Sheridan, 2014 (Markus ›fin‹ Hametner CC BY 2.0)
Decided on September 25, 2020, both cases in Ireland involved journalistic investigations.  In Minister for Communications, Energy and Natural Resources v. Information Commissioner, [2020] IESC 57, journalist, FOI advocate, and founding CEO of Vizlegal, a legal information service provider, Gavin Sheridan (recent profile at The Attic) sought access to a state contract with service wholesaler E-Nasc Éireann Teoranta (eNet) to provide public access to fibre-optic-cable infrastructure.  In University College Cork v. Information Commissioner, [2020] IESC 58, news broadcaster RTÉ sought information about a €100m loan by the European Investment Bank to the National University of Ireland, Cork.  Both court opinions were authored by Justice Marie Baker, herself a U. Cork alumna, with four other justices concurring.

More details and further analysis of the cases are available from Andrew McKeown BL at Irish Legal News (Sept. 28, 2020), and from Bébhinn Bollard, Doug McMahon, and Brendan Slattery at McCann FitzGerald (Oct. 12, 2020).

Tuesday, August 13, 2019

Student prevails in part in UMass Amherst due process disciplinary case in First Circuit

Last week the First Circuit held in favor of a student accused of a violent assault; however, the court largely upheld as constitutional the due process provided to the student in campus adjudication.

The case adds to federal appellate precedent on the requirements of procedural due process on campus.  The First Circuit's conclusions on these facts are not new water marks.  At the same time, observers predict that the multitude of circuit disagreements in this area will lead inevitably to a U.S. Supreme Court ruling.

In the instant case, a male student was accused of a violent assault on a female student, his romantic partner, while studying abroad in Spain under the purview of the University of Massachusetts, Amherst.  The First Circuit ruled that the university failed to provide adequate notice and hearing prior to imposing a five-month suspension on the student, after the allegations but well before the adjudication.  Authored by Rhode-Island-born U.S. Circuit Judge William J. Kayatta Jr., the court's holding came from a unanimous three-judge panel that included retired U.S. Supreme Court Justice David Souter.

The court affirmed judgment for the university as to the adequacy of the campus adjudication and consequent expulsion of the accused.  The student had challenged the adjudication for the exclusion of some evidence and the lack of opportunity to confront his accuser.  Constitutional rights in the context of the campus administrative process were not offended by those omissions, the court held, applying the flexible procedural due process test of Mathews v. Eldridge (U.S. 1976). It's the latter point, confrontation, that especially vexes critics and marks arguable disagreement with other circuit courts. 

The case arises against the backdrop of a heated national debate over higher education reform.  To my consternation, Title IX has become an area in which serious cases of sexual harassment and physical assault are lumped together on the nations' campuses with gross abuses of the rights of students and faculty.  Legitimate disciplinary processes have been perverted, and therefore caused to undermine civil rights law, by overzealous bureaucrats seeking to enforce politically correct group-think on students and to undermine academic freedom and faculty governance.  Purely in my personal capacity, I filed my own observations with the Department of Education in March.

The instant case is Haidak v. University of Massachusetts-Amherst, No. 18-1248 (1st Cir. Aug. 6, 2019).

Saturday, August 10, 2019

State FOIA critical in practice, not so much in law school, law student observes

Connor Gillen, UMass Law '21 and a thriving alum of my 1L Torts class, was featured in the local Cape Cod Times during his summer internship with the general counsel of the Barnstable County Sheriff's Office.  Connor's a good bloke, "now considering working in the public sector after graduation."  I was intrigued to read, amid his report:
While interning at the Sheriff’s Office I also learned about the Massachusetts Public Record Laws and the Massachusetts Statewide Records Retention Schedule. These are areas that I would not have learned about in my law school classes, and the information I was taught will give me an advantage once I graduate and become a practicing attorney.
He's no doubt right about that.  Somebody ought to write a casebook about multistate access norms, maybe teach a seminar.  Probably wouldn't sell well, though.

Tuesday, June 5, 2018

'FERPA Close-Up: When Video Captures Violence and Injury'

With Kitty Cone, Esq., I've published FERPA Close-Up: When Video Captures Violence and Injury, 70:4 Okla. L. Rev. 839 (2018), available to download from SSRN and elsewhere.  We are grateful to the staff of the Oklahoma Law Review, who were meticulous and a pleasure to work with.  Here is the abstract.

Federal privacy law is all too often misconstrued or perverted to preclude the disclosure of video recordings that capture students victimized by violent crime or tortious injury. This misuse of federal law impedes transparency and accountability and, in many cases, even jeopardizes the health, safety, and lives of children. When properly construed, however, federal law is no bar to disclosure and, at least in public schools, works in tandem with freedom of information laws to ensure disclosure. This Article posits that without unequivocal guidance from federal administrative authorities, uncertainty regarding the disclosure of such recordings will continue to linger, jeopardizing the ability of plaintiffs to access needed information.

Tuesday, August 22, 2017

Abstract: Arthur on vaccination and consumer protection

Donald C. Arthur, M.D., J.D. UMass Law '17, has published Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017).  Here is the abstract.

Abstract
Some internet marketers offer for sale “vaccination substitutes” that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.
The article is available to Westlaw Next subscribers here.  The Review is published at North Carolina Central University School of Law.

Claiming Don as an alumnus is decidedly my privilege.  Dr. Arthur is an emergency medicine and preventive medicine physician.  He served 33 years in the U.S. Navy, culminating his career as Navy surgeon general and retiring at the rank of vice admiral. He served as chief executive officer of three hospitals, including the National Naval Medical Center in Bethesda, Maryland.