Showing posts with label coronavirus. Show all posts
Showing posts with label coronavirus. Show all posts

Friday, September 11, 2020

Union, university collude to cut Mass. higher ed pay

UMass Dartmouth (LGagnon CC BY-SA 3.0)
The faculty union and university here at UMass Dartmouth, which includes UMass Law School, are busy about the business of colluding to cut faculty (and staff and admin and everyone's) pay in response to financial (mis)management of the covid crisis.  The draft Memorandum of Agreement came out today; temporarily, I am parking a copy here.  In salient part:

The salary reduction shall be calculated as follows[:]

a. There shall be no reduction on the first $30,000 of regular salary and any regular contractual or other stipend for any faculty or staff member.

b. For each $5000 in excess of this threshold there shall be a salary reduction calculated as a percentage of the faculty or staff member’s marginal salary. This percentage reduction shall start at 5% (0.05) and shall increase by 1 percentage point (0.01) for each step up to a maximum of 10% (0.10).

In the law school, we were already hit with a $7,500-each cut in summer research support, which is a little under 5% for me, much more for others. With two generations of educational debt and current college bills looming over our heads in my family, this cut, just more than 12% in sum, hurts.  In a meeting of faculty yesterday, I got a sense of the impact on the lower ranks and less job-secure, and I was left livid.

The progressive structure was the union's idea, not the university's.  The university only asked for 5% across the board.  On Friday, union president Grant O'Rielly gleefully boasted to members that that wasn't good enough, so the union proposed a progressive plan to ensure that higher paid faculty would pay even more money and suffer a higher rate.  Victory!  The university was so impressed that it accepted and gave the union a pat on the head.  Maybe a cookie, too.  Though there was no mention of a cookie.  

The saddest thing here is the aforementioned collusion between union and university to make this all happen.  They entered into a pact by which no jobs would be lost on either side.  But on the admin/management side, there might ought be some jobs shed, and I scarcely see there would be impact on our educational mission.  You can't spit on main campus (not that you should spit in public, especially now) without hitting a handsomely compensated assistant vice chancellor of something-something.  I'm sure students will take solace in knowing that those jobs are all safe, while their newly virtual and long beleaguered legal skills instructors will now make less money than when they were hired.

The union entertained no other alternatives, either, besides admin cuts.  A reserve fund sits at UMass HQ in Boston, untapped.  As a colleague said yesterday, "it's for a rainy day, and it's raining."  The union didn't proffer a faculty furlough for December/January or May, which we could accomplish without cutting into the class schedule, and then faculty would be eligible for unemployment compensation.  Staff furloughs work that way.  The union didn't negotiate for a better separation-incentive program, or reduced workloads, or summer research support, or even a guarantee that the university can't come back to the well again next year.  The union just rolled over in self-effacing obedience to their management masters.

The greatest insult comes to those of us not in the union.  Thanks to Massachusetts's purported system of exclusive representation, we are compelled to accept the pay cut upon a union negotiation and vote in which we have no say.  And the university, to date and despite my demand, refuses to negotiate with us separately.  If that sounds, well, unconstitutional, yes, I think it is, especially since Janus.  That case said we couldn't be compelled to pay for union speech with which we disagree.  It hardly makes sense, then, that we are compelled to speak with union speech with which we disagree.  I am presently seeking counsel, and there's more than just me, so get in touch, #RightToWork advocates.  Exclusive representation is being challenged meanwhile in other states.

Massachusetts's bargain-basement approach to public education—a real shock to us when we moved here in 2011—was already criminal, especially for a blue state boasting a Kennedy legacy.  Now the state's proud blue labor tradition is belied by the reality that unions are co-conspirators in the crime.  Together the university and union make a mockery of UMass Law's "social justice" mission.

[UPDATE, Sept. 12, 2020:] 

In a case involving the University of Maine, the First Circuit upheld exclusive representation in state law.  The complainant is Jon Reisman, an economics professor at the University of Maine at Machias, and the case is now pending cert. review in the U.S. Supreme Court.  (Hat tip to a D.C. colleague.)

The First Circuit's reasoning is succinct and somewhat baffling.  The court held simply that state law requires the union to bargain for everyone, members and non-members, as a bargaining unit, but not as individuals; thus, Reisman is not "personally represented" and may be subject to whatever terms are struck for the bargaining unit.

Aside from the illogical and constitutionally unknown distinction between speaking for a "unit" and speaking for people, I fear Reisman's case was premature. At UMass Dartmouth, we see the damage wrought by exclusive representation, and the First Amendment problem is laid bare. The First Circuit pointed to Reisman's ability, under Maine law, to communicate grievances directly to the university, without going through the bargaining unit (though a union representative is then brought in to resolve the matter). At UMass Dartmouth, the university has expressly refused to hear grievances outside the union (specifically, mine).  Reisman also did not well articulate any concrete injury, rather, only the intangible harm of compelled association. At UMass Dartmouth, union non-members are about to suffer a big pay cut.  

Moreover, UMass Dartmouth non-members have been kept completely in the dark about the pay cut and excluded from informational meetings, debate, and voting on the measure.  So it can hardly be said that the union at UMass Dartmouth is acting on behalf of a bargaining unit of the whole, members and non-members alike.  The First Circuit's reliance on how things are supposed to work in the idyllic vision set out in statute in Maine bears no relation to the plain First Amendment affront playing out in practice in Massachusetts.

_________________

A reminder that this is my blog, not edited or controlled by UMass Law/Dartmouth.  At the same time, I write in furtherance of public service, which is part of my job, and in which capacity I am protected by custom, contract, law, and the First Amendment.

Saturday, August 29, 2020

Conservationists battle to curb wildlife trade in wet markets, attorney Venckauskas writes

Prawns at a Marché Kermel in Dakar, Senegal, in February
(RJ Peltz-Steele CC BY-SA 4.0)
Attorney Kayla Venckauskas wrote an overview of conservationists' efforts to curb wildlife trade in wet markets since the emergence of coronavirus.

China's ban has loopholes for research, pets, and medicinal purposes, Venckauskas reported.  Conservationists are pushing for legislation elsewhere, too, for example, Vietnam and Australia.  But some observers argue that tight restrictions will only foster an unregulated underground market.

Based in the Boston area, Venckauskas (Twitter) is the first Rena Roseman Legal Fellow with Mercy for Animals.  She was once leader extraordinaire of the Student Animal Legal Defense Fund at UMass Law, and she seemingly effortlessly aced my 1L Torts classes.  Her piece, "COVID-19 Forces Countries to Reexamine Wildlife Trade in Wet Markets," appeared in the summer 2020 edition of the newsletter of the Animal Law Committee, a division of the Tort Trial and Insurance Practice Section of the American Bar Association.

Read more about wet markets at Mercy for Animals, "What do wet markets and factory farms have in common?," by Hannah Bugga (Apr. 20, 2020).

Wednesday, May 20, 2020

Talk traces 'nuisance' from King Henry I to COVID-19


Yesterday I had the privilege to present in a lecture series (virtually) at Jagiellonian University (UJ) on the tort of nuisance in American common law.  I sketched out the historical background of nuisance relative to the recent lawsuit by the State of Missouri, against the People's Republic of China, alleging public nuisance, among other theories, and seeking to establish responsibility and liability for the coronavirus pandemic.  Here is a video (CC BY-NC-SA 4.0) of the presentation, also available from Facebook, where the lecture streamed live.  A narrative abstract is below the video.
The Tort of 'Nuisance' in American Common Law:
From Hedge Trimming to Coronavirus in 900 Years
Nuisance is one of the oldest civil actions in Anglo-American law, dating to the earliest written common law of the late middle ages.  Nuisance for centuries referred to an offense against property rights, like trespass, interfering with a neighbor’s enjoyment of land.  But a nuisance need not be physical, and colorful cases have addressed nuisance achieved by forces such as sound, light, and smell.  In recent decades, nuisance has undergone a radical transformation and generated a new theory of civil liability that has become untethered from private property.  State and local officials have litigated a broad new theory of “public nuisance” to attack problems on which the federal government has been apathetic, if not willfully resistant to resolution, such as climate change and the opioid epidemic.  Just last month, the State of Missouri sued the People’s Republic of China, asserting that COVID-19 constitutes a public nuisance.  Emerging from understandable frustration, public nuisance nevertheless threatens to destabilize the fragile equilibrium of state and federal power that holds the United States together.

Here are some links to read more, as referenced in the presentation:

Here is a two-minute video (CC BY-NC-ND 4.0) of only my PowerPoint (no audio), if you want an idea about the course of the talk:



The four-part lecture series, "American Law in Difficult Times," comprises:
Paul Kurth: The American Low-Income Taxpayer: Legal Framework and Roles Law Students Play
May 12, 18:00
Event - Video

May 19, 18:00
Richard Peltz-Steele: “Nuisance” in American Common Law Tort: COVID-19 as a Public Nuisance?
Event - Video

May 26, 18:00
Susanna Fischer: Art Museums in Financial Crisis: Legal and Ethical Issues Related to Deaccessioning
Event - Video

June 2, 18:00
Cecily Baskir: American Criminal Justice Reform in the Time of COVID-19
Event - Video


Here is the lecture series invitation (Polish) from the American Law Students' Society (ALSS) at UJ, via Facebook:



Here is an "about" from ALSS and partners:
❖ ABOUT AMERICAN LAW IN DIFFICULT TIMES:

The American Law Program (Szkoła Prawa Amerykańskiego) run by the Columbus School of Law, The Catholic University of American [CUA], Washington D.C., and the Faculty of Law and Administration, Jagiellonian University, Kraków, as well as the American Law Students’ Society (Koło Naukowe Prawa Amerykańskiego) at the Jagiellonian University, Kraków, sincerely invite you to participate in a series of four one-hour online open lectures and discussion sessions delivered by professors from the American Law Program.

The lectures will be devoted to a variety of legal issues mainly relating to COVID-19 difficulties facing people and institutions, for which legal solutions may be useful.

The lectures will be available through Microsoft Teams as well as a live-stream via Facebook. Participants willing to participate through Microsoft Teams are kindly asked to provide the organizers with their e-mails no later than 6 hours before the commencement of the lecture, by e-mail to kn.prawaamerykanskiego@gmail.com.

Your participation in all four lectures will be certified by the American Law Students’ Society. Only those participants who provide the organisers with their name, surname and e-mail will be granted such certificates.
I am grateful to Jagoda Szpak and Agnieszka Zając of ALSS at UJ; Wojciech Bańczyk, Piotr Szwedo, Julianna Karaszkiewicz-Kobierzyńska, and Gaspar Kot at UJ; and Leah Wortham at CUA.  The lecture series is sponsored by, and I am further grateful to, the Koło Naukowe Prawa Amerykańskiego (ALSS), Szkoła Prawa Amerykańskiego (School of American Law), and the Ośrodek Koordynacyjny Szkół Praw Obcych (Coordination Center for Foreign Law Schools) at the Uniwersytet Jagielloński w Krakowie (UJ in Kraków), and to CUA.

Sunday, May 17, 2020

Report from a Social Distance Week 8: Speaking of Football, Magic, and Beer ...

Del's is a Rhode Island tradition.  (Photo by Lady Ducayne CC BY-NC 2.0.)
This will be my last weekly report for a while.  I've tried to make it extra savory.  My law school cut summer compensation, so my lemonade from lemons will be much less screen time in the next three months.  These eight "Reports from Quarantine" / "Reports from a Social Distance" have been a lot of fun to write, and I'm grateful for the positive feedback you've sent, dear reader.  Nevertheless, it feels like work anytime a laptop is staring back at you.

Though still experiencing a record-cold spring, the temperature here is at last topping 60°F (15.5°C) as many days as not.  My sprained ankle seems healed, thanks to my Instagram medical team, so I'm looking forward to more time out of the house.  We're reopening in Rhode Island, but there's not yet any timeline for phase 2, much less phase 3.  As I wrote yesterday, people's patience is wearing thin even here in staid New England.  Here's hoping that falling infection numbers bear out our anxious economic plan.

This has been my week 8 since coming home from Africa, and week 8 at home.  Literally, at home.

What I'm Reading

Mary Sidhwani, How to Find the True Self Within: Secrets of Relieving Stress and Anxiety (2019).  I'm not the self-help sort.  But my aunt wrote this book.  I can't imagine a more fitting title to kick off my time away from work.  I'm only as far as the introduction, and I'm keeping an open mind.  Audio chapters are available also.  Dr. Sidhwani is the compassionate soul behind the Women's Therapeutic Health Center, based in Ellicott City, Maryland.

John Maynard, The Aboriginal Soccer Tribe (2019).  This unusual nonfiction selection was a gift—name drop ahead 🤭—from Bonita Mersiades, whom I met last year at Play the Game, and of whom I became an instant admirer.  Mersiades is known in world sport circles as "the Australian whistleblower" for exposing FIFA corruption in soliciting nations' World Cup bids years before the 2015 indictments made whistleblowing fashionable.  She suffered enormously for the perceived betrayal, persecuted both professionally and personally.  Watch her talk about it at Play the Game, or read my account of the session.  A powerful personality already schooled in fighting the establishment as an executive in women's sport, Mersiades was not so easily deterred.  She wrote her own book, aptly titled Whatever It Takes: The Inside Story of the FIFA Way (2018); started her own boutique publishing house, Fair Play; and became a renowned commentator on the global business of football.

Knowing my interest in comparatism and sport and society, including research on Australian indigenous media, Mersiades gifted me the 2019 Maynard release.  John Maynard hails from a Worimi Aboriginal community on coastal New South Wales. He is a professor of indigenous history at the University of Newcastle in Callaghan.  Maynard's cultural-comparative work has set Aboriginal politics alongside African American and Native American policy problems.  He's also an avid football fan, and this book is a definitive biography of soccer and Aboriginal society.  The 2019 book from Fair Play is actually a revised update of an out-of-print 2012 original.  If you're a football fan, or you want to buy a gift for one, check out Fair Play's many other titles, too.  They include histories of Aston Villa, Liverpool, and Everton, as well as other socio-cultural studies of Asia and Brazil.

The 12 Minor Prophets.  With our church, we continue our year-long reading program, moving on to the intriguing teachings of the 12 minor prophets.  As usual, the BibleProject has fabulous drawing videos, starting with Hosea, Joel, Amos, and Obadiah.  Worship services are continuing online for now, and, as always, all are welcome, 0930 EDT on Sundays.

What I'm Watching

The English Game (2020).  This limited series was developed for Netflix by none other than Julian Fellowes (Downton Abbey).  Its six episodes are sometimes in a clumsy rush to deliver its upstairs-downstairs social message.  Overall, though, this story about the origins of association football (soccer) in late-1870s England makes for a thoroughly rewarding work of television.  The series uses football, today the world's game, as a lens through which to view evolving society.  The show brings within its scope not only thinning social strata, but emerging women's and labor rights.  Football itself was at a pivotal point of development at this time, transitioning from elite pastime to professional play, and introducing a more sophisticated form of passing play, recognized as the norm today, relative to a simple strategy of dribbling attack.

The story of a working-class mill team making an unprecedented run to steal the FA cup from elite-establishment collegiate players is very loosely based on real events.  Read more at the publication of your choice: Daily Mail, Digital Spy, Esquire, Express, i news, Mirror, Radio Times, The Spectator, or The TelegraphKevin Guthrie is stately as earnest Scottish footballer Fergus Suter; Guthrie was Abernathy in Fantastic Beasts.

The Great (2020).  I watched the first few episodes of HBO's Catherine the Great with the resplendent Helen Mirren, who received a Golden Globe nomination for the lead role.  I've been embarrassed to admit that I found the show too slow and didn't finish it.  Now comes Hulu's The Great to tell me, it's OK, and to make Catherine's remarkable story so much more delightfully digestible.  This dark comedy features Elle Fanning (Maleficent's Princess Aurora and Dakota Fanning's sister) as Catherine and Nicholas Hoult (X-Men's Beast, the big screen's J.R.R. Tolkien, and the most recent Watership Down's Fiver) as Peter III.

At times laugh-out-loud funny and taking great liberties with history—TV Catherine only arrives in Russia for her wedding to the already-emperor, whereas the real Princess Sophia had been brought to court decades earlier—the story is, as the show's title card disclaims, "occasionally true"—as in portraying Count Orlov, played ably furtively by Sacha Dhawan (Doctor Who's latest Master), as an enlightened co-conspirator in Catherine's inevitable coup. The magnificent sets meant to emulate 18th-century Russian imperial opulence include one real Italian palace and several English castles and houses.  Be warned, there are brief and highly fictionalized portrayals of violence against animals.

The Politician s1 (2019).  This creation from Glee trio Ryan Murphy, Brad Falchuk, and Ian Brennan was much hyped, but ... weird.  I was interested enough to watch it all the way through.  But Glee it is not.  The Politician lives somewhere amid a wicked ménage à trois of Napolean Dynamite, My So-Called Life, and Alex P. KeatonDear Evan Hansen's defining stage star Ben Platt snagged a Golden Globe nomination for the lead role, and he's terrific.  But the story of a socially awkward teen hell-bent on winning his high school presidency as a ticket-punch on his life-road to the White House is more aimless in the execution than the funny trailers suggest. Season two is expected in June; I'll probably skip it.

Good Eats Reloaded s1-s2 (2018-2020).  Devoted fans of the 14-season Food Network phenomenon that was Good Eats (1999-2012), we went twice to see cinematographer-turned-food-guru Alton Brown share his scientific approach to the culinary art on stage, in 2014 and 2016.  At the latter show, Brown caused an eruption of audience elation upon a cryptic clue that Good Eats might be coming back.  It has, and season 15, retitled Good Eats: The Return, is now free to view in 13 episodes at the Food Network online.  In the interim, Brown made two seasons of Good Eats Reloaded, the second coming out weekly now from the Cooking Channel, available there and on other platforms.  At first I did not want to watch Reloaded, because they looked like just rebroadcasts of the old show.  I was wrong; they're much more.

Hosted by Brown, Good Eats Reloaded is an often hilarious, sometimes MST3K-like look back at Good Eats highlights with plenty of new content.  Contemporary Brown mercilessly mocks his younger self, often breaking away to tell us, for example, how he cooks a burger now, with decades' more experience, or that he no longer uses rolling pin rings because, what seemed like a good idea at the time, they broke soon after the show was filmed.  Sometimes there are all new recipes; he cuts out early from s1e01 Steak Your Claim: The Reload to show us how to make my favorite Korean comfort food, bibimbap.  But, I say, leave out the fish sauce 😝 for the authentic urban-Seoul variant.  Speaking of eats ....

What I'm Eating

Lasagna.  My wife made her incomparable vegetable lasagna (pictured before the oven) for Mother's Day.  Get off my case.  I made breakfast.  She likes to cook.  It's her escape.  Heaven knows she deserves to escape.

Antoni's baked turkey mac'n'cheese.  Furthermore for Mother's Day, we had a family Zoom on my wife's side, wherein everyone made mac'n'cheese comfort food, feat. ground turkey, from Antoni's cookbook, Antoni in the Kitchen.  (That was just one of three Mother's Day Zoom calls.)  The product was tasty, but heavy.

Crepe cake.  Another self-sacrifice 😉 in the #SaveOurRestaurants campaign, we went back to neighbor-owned Crepelicious for its signature, 14-layer, green-tea crepe cake.  Speaking of heavy...

I'll lose weight after lockdown.  Promise.

What I'm Drinking

Mardi Gras King Cake.  My last order from Community Coffee brought Mardi Gras King Cake to my door.  It tastes almost sweet on its own, flavored as it is with cinnamon and vanilla.  It recalls my wife's king cake from March and reminds us of our beloved New Orleans, an especially welcome nostalgia since the cancellation of this summer's AALL conference there.

Koloa Estate.  We took an interlude from Community to visit the far side of the continent with medium-roast Koloa Estate from Kauai Coffee.  Kauai brands often get a bad rap because they're not 100% Hawaiian grown.  You're forgiven if the package led you to think otherwise.  Still, if you don't overpay, it's a solid coffee, for a blend, with some of that nutty flavor that characterizes beans grown in Pacific Rim soil.

Sharish Blue Magic Gin.  I brought this gin back from Lisbon.  Its name is the Arabic name of its home town, Monsaraz, in the southeastern Alentejo region of Portugal, and the unusual whale-fin bottle shape pays homage to the region's easterly hills.  Sharish is made by António Cuco, who, according to various accounts, was an unemployed teacher when he started experimenting with distillation in his home pressure cooker in 2013, set to head a multimillion-euro operation in a few short years.

Sharish's defining feature is its brilliant blue color, more indigo in brighter light and undiluted density, and its "magic" is that this color turns to pink in the presence of tonic.  I experimented, and it was fun. The blue color comes from the flower of the blue pea blossom, clitoria ternatea, in fact named for its, uh, feminine shape.  Tonic really does change the color, not just dilute it, shifting the acidity balance to alkaline, like when we played with pH paper in grade-school science class.  When the novelty wears off, a gin with a rewarding and summery flavor remains.  Sharish leads with its fruits, raspberry and strawberry, and they're backed up by a palette of Alentejo-grown botanicals: angelica, cardamom, cinnamon, ginger, and licorice, besides the blue pea and juniper.  Sharish goes down so pleasantly, even straight, that its 40% ABV sneaks up on you.

Clitoria ternatea is not a European native, and this is not the only gin that uses it.  The flower goes by many names around the world, including butterfly pea and Asian pigeonwings.  It's an Asian native and has long been known in Asian cuisine, notably Thai blue rice.  The flowers give Empress 1908 gin an indigo hue and a savour overlapping with Sharish.  Made in British Columbia and shipped worldwide, Empress is easier to find in North America, though I think a rung below Sharish in finish.

French 75.  I wanted to make a special cocktail for my wife for Mother's Day.  The French 75, a champagne-and-gin mix, was the signature favorite of Count Arnaud Cazenave in 20th-century New Orleans, according to the John DeMers book, Arnaud's, that I wrote about two weeks ago.  I used a Bon Appetit recipe, a French champagne, and New Amsterdam gin.  My French 75 made me feel like a high-class continental cultural import.  I was so carried away that I briefly joined the neighbor's bichon frisé in looking down (figuratively) on our lab mix.

Death by King CakeI ventured to the "essential" liquor warehouse to bring my wife two new beers to try for Mother's Day.  We love whites and sours.  Both of these were indulgent treats.  Death by King Cake let us end the day the way we started it.  From Colorado-based Oskar Brewing, King Cake is a 6.5% ABV white porter brewed with vanilla, cinnamon, nutmeg, cacao nibs, orange peel, and pecans.  Oskar promises Death by Coconut coming soon, an Irish-style porter in the same "series."

Key Lime Pie Sour.  Of all the food and bev I've tried around the world, I remember vividly my first frozen-key-lime-pie-slice-dipped-in-chocolate-on-a-stick in Key West, Florida.  That was the moment I realized that humanity had achieved Roman Empire-level gluttony on a global scale, and that our fall is inevitable, probably coming sooner than later, but that it would be a helluva ride down.  This is that in a beer.  From New Hampshire-based Smuttynose Brewing Co., there's an adorable seal visage on the back of the can. 6.3% ABV.

It was a Zoom Mother's Day


Stay thirsty, my friends!

Eating and Drinking images by RJ Peltz-Steele CC BY-SA 4.0 with no claim to underlying works
Zoom captures by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim of data protection waiver

Friday, May 15, 2020

Legal attacks on lockdown mount; R.I. Governor's time will run out, report warns

Persons entering Rhode Island remain subject to 14-day
quarantine in the present phase 1 of reopening. Photo by
Taber Andrew Bain CC BY 2.0.
A former Rhode Island Supreme Court justice and a libertarian think tank asserted this week that R.I. Governor Gina Raimondo is running out of rope in sustaining her emergency lockdown orders.

Earlier in the pandemic, we law types found ourselves with time on our hands to read up on, and sometimes write about, the legal landscape of emergency powers.  Report 98-505 from the Congressional Research Service (here from the Federation of American Scientists and updated March 23, 2020) and CDC public health emergency guidance (2009, updated 2017) suddenly became popular downloads.  The 50-state compilation of quarantine and isolation laws at the National Conference of State Legislatures was well visited.  Various guides to emergency powers have blossomed since.  Heritage published a "constitutional guide" as early as March.  The Brennan Center updated a 2018 report about three weeks ago.  At Lawfare, Benjamin Della Rocca, Samantha Fry, Masha Simonova, and Jacques Singer-Emery overviewed state authorities the week before last.

Wisconsin Supreme Court chamber (Daderot CC0 1.0)
This week brought news of the Wisconsin Supreme Court decision two days ago, striking down the Wisconsin governor's stay-home order.  Clarity around the scope of the ruling and guidance as to how it should be implemented was woefully lacking from the 4-3 fractured court, and public confidence in the decision was undermined by the participation of a lame duck conservative justice in forming the majority.  Against the backdrop of a state supreme court already badly tarnished by partisan politics, the decision has only aggravated America's White House-fueled ideological in-fighting over coronavirus public policy.

Rhode Island Governor Gina Raimondo
Personally, I've been happy with the leadership of Governor Gina Raimondo in responding to the crisis in my home state, Rhode Island.  But to be fair, I work in Massachusetts, and my job has been relatively secure.  There have been peaceful protests against lockdown in Rhode Island, and there is no doubt that the economic closure is devastating the small-business-heavy economy in the nation's smallest state.

On Wednesday, Robert Flanders, Matthew Fabisch, and Richard MacAdams published a legal analysis of Governor Raimondo's emergency orders.  The report came from the free-market think tank, the Rhode Island Center for Freedom and Prosperity.  The authors are all lawyers; Flanders is a former associate justice of the state supreme court and was once a Republican challenger to U.S. Senator Sheldon Whitehouse.  Flanders wrote a companion editorial for The Providence Journal.  (HT@ Gene Valicenti.)

The takeaway from the report in the news is that the Governor has overstepped her emergency authority and is ripe for a lawsuit.  That's an understandable but unfair oversimplification.  The report is a solid legal analysis that examines the scope of state executive authority from a range of angles, including the statutory framework and constitutional limitations such as takings.  The popular takeaway derives from just one thread of the analysis, if an important one: The Governor's emergency powers must be limited, and a key dimension of those limits is time.

Rhode Island State House (cmh pictures CC BY-NC 2.0)
The report does not purport to adjudicate the Governor's emergency response as wrong or right.  Rather, the authors opine, when the Governor's authority runs up against the reality that exigencies are, by definition, not perpetual, the General Assembly has a responsibility to step up and lead.  That might mean simply extending the Governor's authority to make the kind of spot decisions that will be required for subsequent phases of reopening.  Or the legislature may override executive-ordered closures and force the reopening of the economy.

Saliently, the legislature should take charge of public policy.  The most cumbersome branch of government in its populous operation, the legislature is to be excused in the throes of emergency.  But after enough time has passed, the most democratically responsive branch of government should be able to gather its wits, get on its feet, and make law.  Decisions such as whether K12 schools will reopen in the fall, for example, not just financial shortfalls, should be the subject of fact-gathering legislative hearings right now.

The inevitable logic of this ideal is subject to reproach on grounds that many of our state legislatures in the United States, Congress besides, have become dysfunctionally non-responsive to increasingly severe social and economic problems. This paralysis has many and complicated causes, including corporate capture and unbridled gerrymandering.

In the functionalist reality of our government of separated powers, if one branch abdicates its mantle, the others will fill the vacuum.  Thus, in the absence of legislative leadership, a governor may be expected to carry on with policy-making, and a state supreme court, especially a politicized one, may be expected to push back.  It's in this sense that the pandemic crisis is exposing yet another grave institutional weakness in the infrastructure of American government.

If a legislature remains paralyzed long enough, the people will become antsy.  Among the ultimate remedies for legislators who would shirk their duties, some are more palatable than others (video: Liberate Minnesota protest, April 17, by Unicorn Riot CC BY-NC 3.0).  Once upon a time in Rhode Island, residents took up arms to compel the legislature to expand enfranchisement through a constitutional convention.

Alas, one problem at a time.

Saturday, May 9, 2020

Report from a Social Distance Week 7: For lockdown horror, 'Dr. Rick' prescribes hibachi, водка, and tulips

My new doorbell cam
spies a ne'er-do-well.
Quote of the Week:  "Murder hornets, but with the right lawyer, manslaughter bees. 🐝"  —attorney Jennifer T. Langley

Our stay-at-home order is formally lifted in Rhode Island as of today, May 9, though in this phase one, most restrictions remain in place as either mandates or recommendations.  I’m not eager to go out much myself until we have effective antibody testing, and then we'll see.  And we’ll have to hope and pray that our economic reopening doesn’t drive up the infection numbers.  Three days ago, with stay-at-home still in place, I saw dozens of kids playing basketball at Burr's Hill Park.  Parents were there, too.  “Knock it off,” Governor Gina Raimondo would have said.

Oh, I almost forgot the week's most exciting news.  Hitting the grocery store first thing in the morning, we scored a whole package of toilet paper!

Knock it off.  This is week 7.

What I’m Watching

Knives Out (2019).  This movie is a rollicking good time, an Oscar-nominated screenplay in the hands of a classic cast.  Daniel Craig, with a credible Mississippi drawl, proves why he’s so much better than Bond, and Jamie Lee Curtis, well, enough said.

Ozark s3 (2020).  I finally caught up, and there’s a reason why this show was viewers’ number one new binge in lockdown.  The show remains intense, not for the faint of heart.  I didn’t see coming that Helen would play such a pivotal role in season 3.  Now I have to make room on my top TV lawyers list, category: drama, for Janet McTeer’s Helen Pierce (link to spoilers).  This is not Newcastle UK-born McTeer’s first turn as a TV lawyer; she played Patty Hewes’s vengeful secret sister Kate Franklin in the final season (2012) of Damages.  In the Marvel universe, she’s Jessica Jones’s mom, Alisa Jones.

American Horror Story: 1984 (s9) (2019).  For me, AHS has never been able to top season 5’s super-creepy Hotel (2015-16), with Lady Gaga, but season 9 was enjoyable.  It’s AHS’s answer to Stranger Things, and I can’t get enough of these tongue-in-cheek ’80s tributes.  As usual, the anthology series assembles an all-star squad of regular and guest stars.  Carrie Fisher daughter and “Scream Queen” Billie Lourd well anchors the cast.

Locke & Key s1 (2020).  I was pleasantly surprised by the first couple episodes.  The show may fairly be described as YA, employing the convenient contrivance that the adults can’t see the evil spirits.  Nevertheless, it’s creative and cleverly executed.  Our teenage heroes occupy a haunted house, of sorts, in coastal Massachusetts.  Really the series is filmed mostly on finely crafted sets in Toronto with gorgeous outdoor scenes in UNESCO World Heritage Site Lunenberg, a port town on Nova Scotia’s southeastern coast.  I’m fast becoming a fan of lead actor Connor Jessup, who played Ben Mason in Falling Skies (2011).  The Locke & Key story is based on a 2008-13 graphic novel series (Amazon) of the same name and in a style that pays homage to H.P. Lovecraft (a Providence, Rhode Island, native, see also Atlas Obscura) and Richard Matheson (obituary).  A Fox pilot that wasn’t picked up, Locke & Key also was a 2011 TV movie by director Mark Romanek, who directed the recent s1e01 of Tales from the Loop.

Outer Banks s1 (2020).  I'm not going to pretend this is more than it is.  Another YA offering, sometimes I like to immerse myself in the equivalent of what my grandmother called her "stories," pretty people in the throes of impossible melodrama. Bonus, Outer Banks actually has a thrilling story from writer Shannon Burke and the filmmaker Pate Brothers. It's Treasure Island meets 90210, and I thought that before I learned that Burke's most recent and successful novel, Into the Savage Country (2016), was, he said, inspired by books including TI, Kidnapped, and White Fang.  The show totally confirmed my suspicion that my niece and nephews growing up on the OBX lead frenetic lives filled with intrigue, murder, and buried treasure, all interlaced with vertiginous adolescent lust.  The cast, the usual twenty-somethings pretending to be ten years younger, are mostly relative newcomers, well handpicked from the minor character ranks of such other recent features as Stranger Things, Black Lightning, and The Hate U Give.  On the adults-as-adults side, American Horror Story alumna Adina Porter, also a veteran of True Blood and Newsroom, turns in another spellbinding performance as Sheriff Peterkin.

Basic Versus Baller: Travel at Any Cost s1 (2018-19).  The perfect virtual escape from lockdown, I'm torn between loving these guys and burning with envy that I didn't think of this first.  Brothers Marko and Alex Ayling, "the Vagabrothers," went to university in southern California and were teaching English in Spain when they started vlogging in 2012.  They became a YouTube sensation and were invited to make 10 episodes of this show for Tastemade, an eight-year-old, Santa Monica-based, food-and-travel media company that has carved out a lucrative niche on the digital frontier.  The show is available on various platforms; I'm watching on Hulu.  The conceit is that in each episode, one brother gets to live the high life and the other has to hostel it, as they explore destination cities and their food worldwide.  Sponsorships figure in unobtrusively.  The competition angle is light-hearted, as the brothers succeed in sharing the delights of different price points and put local culture on center stage.

https://www.youtube.com/playlist?list=PL-TXSFxFLp5G0ZEePpmHEjyFWvCbxzYfC
Progressive adsProgressive Insurance—which has never had a worthwhile deal for me—has a hilarious new ad character, "Dr. Rick."  “Progressive can’t protect you from becoming your parents” is the theme; Dr. Rick's intervention was forecast by two also funny "parentamorphosis" ads seven months ago.  Two new 30-second bits are “Group Outing” and “Pillows.”  There’s also a 74-second mockumentary on YouTube.  Progressive’s faux Zoom lockdown ad, with Flo, is pretty funny, too.  Progressive uses the Boston-based ad agency Arnold, and Martin Granger directed.

What I’m Eating

Miku Japanese CuisineTo #Save­Our­Restaurants, we ordered curbside this week from nearby Miku: wonton soup, crispy calamari, pork gyoza, sesame chicken, and a ridiculous portion of hibachi chicken.

What I’m Drinking

Community House Blend.  A new order arrived from Community, and we started with the solid house blend, a medium-dark roast.

Водка Окно в Европу.  We took a short interlude from our gin habit.  The name of this Russian vodka by St. Petersburg-founded Ladoga Group translates to “Window on Europe.”  I brought it back from Russia, mostly for the pretty design on the bottle.  Inside, what can I say, it’s vodka.

Dry Line Cape Cod GinA Christmas gift from my wife, this briefly barrel-aged, organic-cane-sugar double distillation from South Hollow Spirits in North Truro, Massachusetts, leads with juniper berries harvested locally from eastern red cedars, and follows up with angelica root grown in a compost of Truro Vineyard grape skins.  My bottle is from small batch #10.  The Boston Globe aptly said it “has a soft bite,” and Drink Hacker likewise reported a “palate … extremely soft for a gin of this alcohol level,” 47% ABV, with a “sweet and lengthy” finish.

What I’m Doing to Stay Sane

Google Nest Thermostat and Hello.  We gained some distraction through home improvement and a socially distancing visit from our masked local technician.  Google’s thermostat gets a 👍 thumbs up; its doorbell gets a 👎 thumbs down.  The thermostat we bought to replace our broken one.  It’s pricey, but we expect to recoup savings from all those times we both leave home and forget to turn the heat off.

The Hello doorbell/security cam was a gift.  It makes a quality image and shares a futuristic look with the thermostat.  But it comes with a lot of shortcomings.  First, the Hello is almost useless without a paid subscription.  The device itself has no processing ability; it’s dumber than a mere motion sensor.  The Hello must constantly stream image to and from Google just to check for motion.  Hence, the subscription is necessary if you want the device to be anything more than a doorbell.  Second, the data stream eats bandwidth and will ruin you if your service is capped.  Third, the cloud-based detection algorithms have a long way yet to go.  The motion sensor is oversensitive, set off by trees and shadows.  The sound sensor is a non-starter on our busy street.  These shortcomings are all understandable for a work-in-progress product, but not for one that demands a monthly fee.  I have a Blink camera already, and I’m much happier with that.

Watching spring spring.  The tulips are opening, despite a continuing cold that diverges daily more from seasonal highs.  The birds are fighting it out for access to the feeder.  Sometimes #QuarantineLife is just about watching the grass grow.

Happy Mother's Day!


🌷🌷🌷🌷🌷🌷🌷

Photos and video except in "Watching" RJ Peltz-Steele CC BY-SA 4.0

Friday, May 8, 2020

Shielding business from coronavirus torts neglects deep-seated dysfunction in litigation, health insurance

Amid reopening and the controversy over reopening, American private business is seeking legislative protection against coronavirus-related tort litigation.

To oversimplify, businesses are worried about being sued if a worker or customer contracts the virus in the workplace or in a retail space.  Tuesday morning, U.S. Chamber of Commerce Executive Vice President and Chief Policy Officer Neil Bradley told National Public Radio that the Chamber is not asking for blanket immunity, but "a safe harbor ... against frivolous lawsuits."

"No one wants to protect bad actors here," Bradley said.  He suggested that liability could be predicated on gross negligence or "willfully forcing workers to work in unsafe conditions," which, legally speaking, is recklessness.

Protecting business from litigation is the Chamber's bread and butter, and that doesn't make it the Big Bad Wolf.  Businesses, especially small businesses, represent real people, owners and workers, who, in the absence of any extended public safety net, need to work to make ends meet.  Facing bankruptcy because of prolonged closure or because of the inevitability of a contagious disease surmounting all precaution is a heck of a catch-22 to put a business in.  From that perspective, the Chamber's position seems a fair ask.

At the same time, the Chamber's advocacy highlights two enormous socio-legal problems in America: transaction costs in tort litigation and employment-based health insurance.  A safe harbor would brush both these problems back under the rug.

It isn't tort litigation per se that business fears; it's the cost of that litigation.  Corporate defense—that's the kind of law I practiced a million years ago—wins in litigation with an enviable record.  The burden of proof rests with the plaintiff, which means that even meritorious causes may fail upon the vagaries of evidence.  What's more, the usually superior resources of the corporate defense bar warp the playing field of an adversarial contest predicated on the fallacy that the truth will out.  But the defense's advantages don't change the fact, for many reasons I won't here explore, that litigation costs a fortune.

As a result of runaway transaction costs, everyone loses.  Plaintiffs and would-be plaintiffs with meritorious complaints wind up not suing, winning nothing, or winning far less than will make them whole.  Plaintiffs without meritorious complaints may nevertheless win in settlement.  Meanwhile the cost of defense in every scenario, from insurance in anticipation of litigation to fees in its management, is visited on American business and passed on to the American consumer.  And the mere risk of those costs results in over-deterrence that burdens the American marketplace, distorting economic behavior.  This dysfunction renders the U.S. personal injury system a laughingstock elsewhere in the world.

So if the deck is so stacked against plaintiffs, why do they sue anyway, courting an invariably unfulfilling outcome and burdening even prevailing defendants?  That leads us to the second problem, our dysfunctional health insurance system.

An injured person might wish not to sue, yet become a plaintiff anyway; if the person is insured in any measure, the insurer will make the choice.  And notwithstanding the intervention of insurance, our healthcare system usually leaves an injured, would-be plaintiff holding a bag of devastating, bankruptcy-inducing invoices.   (I asked, rhetorically, earlier this week, what perversion of American values causes a working person diagnosed with terminal cancer to have to spend his precious last year of life carving out time from family and chemotherapy to do fundraising.)  In the American litigation and health insurance systems, a plaintiff sues against all odds because the plaintiff has no other choice.  And in a perverse feedback loop, plaintiff and plaintiff's insurer are permitted to pin their hopes on the likelihood that the threat of excessive transaction costs will shake loose a settlement upon even the weakest of claims.

The problem of healthcare costs is compounded by America's stubborn insistence on employer-based health insurance.  Focused on the bottom line, employers effectively make advance healthcare decisions for workers, which, naturally, increases incurred costs for the workers who become patients.  With precious little control over their healthcare choices, but afraid of wholly losing coverage, risking food and shelter for themselves and their families in a country that eschews social safety nets for people while bailing out corporations, workers make irrational market choices, such as working for less than a living wage, accepting a salary to obviate overtime, going to work in unsafe conditions, and going in sick.  We got into this mess entirely by accident, as Planet Money reported in 2009, and we seem helpless to get out of it.  Ironically, now, the Chamber seeks to protect business against a litigation problem that results in large part from employers' own choices, however economically rational, to leave workers unprotected from catastrophe and trapped in a job by an unlevel labor market.

In the theoretical American tort system, the way it works when I teach its rules and policies to law students in America and Europe, the businesses represented by the U.S. Chamber should not be worried about tort lawsuits.  The test for negligence-based liability in American tort law is simply unreasonableness.  A business that takes reasonable measures to protect workers and customers against infection would suffer no liability, even given the inevitability that contagion will still happen in the face of reasonable precautions.

The truth of the matter is quite different from the theory, and Bradley's statement to NPR demonstrates the divergence.  On the one hand, Bradley said that business must be protected against "frivolous lawsuits."  The problem with that rationale is that the legal system already provides for potentially hefty penalties and sanctions against any plaintiff or plaintiff's lawyer who would try to prosecute a truly frivolous lawsuit.

On the other hand, Bradley said that businesses should be liable only upon a heightened culpability standard, gross negligence or recklessness.  "No one wants to protect bad actors here," he said.  Someone who is grossly negligent or reckless is not necessarily bad; bad is a normative judgment and not a workable legal standard.  Colloquially, he is equating bad with culpability, and that's fair.  But if the equation holds, why is a negligent business not also bad?  Is every negligence lawsuit necessarily a frivolous lawsuit?

Bradley made a strategic semantic choice.  Mention of the "frivolous" is calculated to evoke a gut reaction of displeasure in Americans who have been conditioned by the heavy media messaging of tort reform advocacy.

But let's for the moment cut Bradley and the Chamber some slack.  From where they sit, frivolous cases and negligence claims are equally problematic.  That's because plaintiffs are compelled by the circumstances of our dysfunctional systems to sue in negligence even when the merits might not bear out the claim.  In other words, the brokenness of our litigation and healthcare systems over-incentivizes injured persons to litigate.  A plaintiff decides to sue because of desperate need for compensation, not because of the strength of the claim that the defendant is blameworthy.

Negligence isn't the thing that's broken.  For my money, negligence, meaning the reasonableness test, applied by a Seventh Amendment jury, remains one of the greatest innovations in law in the last two centuries and has proved a worthy American example for the world.

Our litigation system is broken.  And our health insurance system is broken.  Adoption of a safe harbor for defendants within those systems as they exist now will just mean that when a business is negligent, and a person gets sick as a result, the sick person will bear the cost of the illness and of the business's negligence.  That's not how American civil justice is supposed to work.  That's not how it was ever supposed to work.

So many pundits, so many of us, Americans and people around the world, have wondered aloud whether this crisis might at last precipitate real and meaningful change, change that might bring people's standard of living into correlation with our fantastic global wealth and technology.  We've wondered whether, and we've dared hope that, we stand at the threshold of the Great Realization, from which humankind will never turn back.

In that frame of reference, the safe harbor proposed by the Chamber, or moreover statutory immunity from tort liability, would be a profoundly disappointing portent of business as usual.

My thanks to Professor Rebecca Crootof at Richmond Law for an email that got me thinking about this.  Thanks also to any loyal reader who made it this far without pictures.  My "Report from a Social Distance Week 7" is delayed but not forgotten; look for it this weekend.