Showing posts with label law review. Show all posts
Showing posts with label law review. Show all posts

Thursday, March 28, 2019

UMass Law Review hosts vibrant media law symposium

Today, as advertised, the UMass Law Review hosted a symposium on media law. The program videos are all on Facebook Live.  Check my Twitter feed for hot links to speakers' handles.  Three panels were organized by media "platform," from politics to digital to entertainment, raising issues from the investigative journalism to data breach law to streaming music copyright.  The program concluded with a keynote address by Richard P. Flaggert, a DLA Piper media attorney.  Here are some highlights:

After a thoughtful welcome by UMass Law Dean Eric Mitnick, UMass Law Professor Jeremiah Ho started the program with a discussion of why media matter.  The problem of law and policy, he said, is the gulf between "what matters" and "what excites us," with the media business model tending to cater to the latter.  Professor Ho is a co-adviser of the UMass Law Review.





  

Kicking off the first panel of the day, Rep. Christopher Markey, New Bedford, Mass., attorney, Commonwealth legislator, and UMass Law alumnus, gave the political perspective.  Money has distorted news from being an educational tool to being entertainment, he explained.  People must be media literate to elicit truth from what they see, hear, and read.  Recalling his years as a district attorney, Markey said that attorneys and judges were "better" when a beat reporter was sitting in the courtroom, that journalism "makes government better."  But those beat reporters are no longer there.

Jillian Fennimore provided her perspective from inside the busy office of Massachusetts Attorney General Maura Healey.  A journalism graduate of the University of New Hampshire with many years experience in media, Fennimore explained the challenge of making the work of the state's law office intelligible and meaningful to citizens, whether the subject matter is investigation of the opioid crisis, antitrust enforcement, or protection of a consumer whose vacuum cleaner broke.  AG Healey cares about all of these things because she understands that these are things people care about, Fennimore said.  My Torts II class has been looking at the impact of the Healey opioid investigation on the crisis and litigation nationwide.

Peter Ubertaccio, a dean and political scientist at Stonehill College, gave an academic perspective on news and media law.  Those of us of a certain age remember the local TV news anchors of our youth, he observed.  That is not true for our children.  Journalism today is "atomized," lacking the "rhythm" of television before the information age, even if the internet is "democratiz[ing]."  There is more content available through more conduits than ever before, Ubertaccio explained, yet there is less availability of accurate information.  We are entering a golden age of television entertainment while at the same time entering a dark age of information, he said.  Incidentally, yes, I remember my anchors.  And I was privileged to have worked with Baltimore's great Al Sanders for a short time before he passed away.

A star of the first panel was Dee DeQuattro, UMass Law alumna, staff attorney for Operation Stand Down Rhode Island, and creator of the Boots on the Ground Heroes Memorial.  DeQuattro talked about her experiences in radio and television, most recently as an assignment manager for ABC6 News in Providence, Rhode Island, then her transition to a public relations and later legal capacity for the veterans organization, Operation Stand Down.  DeQuattro went to journalism school to hold power accountable in the tradition of Woodward and Bernstein, she said.  But "news doesn't work that way anymore," as bottom-line focused detracted from serious political reporting.  After covering the Boston Marathon bombing, she went to law school.  She still uses her familiarity with news media, driven by money savings and visual imagery, to manage public affairs in her nonprofit work.

Law Review co-adviser Professor Dwight Duncan moderated the second panel, on digital media.  Professor Andrew Beckerman-Rodau of Suffolk Law School and the Intellectual Property Center opened with a comprehensive overview of data protection, including data breach and Big Data analytics, in American law today.



Attorney Hollie Lussier of Bristol County Savings Bank told the audience about the large role data protection and privacy play in legal practice today, especially in the financial sector.  She warned attorneys to consider insurance liability limits, as $100,000, she said, won't cut it.  She cited a recent case of a "small" data breach that nevertheless generated a $140 million loss.  The breach could have been prevented, she said, with a $10,000 "penetration test."  Making matters more hazardous, she explained, many insurance policies will not cover consequential damages, which make up most of that mega-million loss.

Rhode Island attorney and legislator Stephen Ucci concurred on the importance of data protection to contemporary practice.  He referenced a recent in case in which only 300 records were exposed.  Despite seemingly straightforward facts, the exposure of data has different implications for each data subject, he explained; moreover, breach across state borders implicates the laws of 50 states as well as federal laws, such as the Gramm–Leach–Bliley Act.  The complexity of even a small case is thus multiplied.  Ucci discussed the data breach legislation adopted by Rhode Island in 2015 and plans to beef up education and implementation in the near future.

UMass Law Professor Dustin Marlan moderated the third panel, on the subject of entertainment law.  Attorney and educator Richard Kent Berger started off the afternoon program talking about music copyright.  He explained the significance of the Music Modernization Act of 2018 and related legislation and pending proposals.  Royalties are now owed for digital streaming, and some pre-1972 musical works that had lost copyright protection have had their authors' royalty rights restored.  The law also revamped the approach to orphan works and afford them greater protection against loss of copyright.  Previously large content providers such as Google's YouTube were able to use a notice process on a massive scale to shake potentially orphaned works free of their copyright protection.

Seattle University Law Professor Bryan Adamson, a mass media scholar, talked about the importance of framing in media, especially in news reporting, and especially in coverage of protest movements. Media frames tend to perpetuate social stability, he explained, and as a result, tend to perpetuate racial hegemony.  The portrayals viewers see might not fairly represent the facts, and, as a result, he said, rather than contributing to the public dialog, media narratives might "derail" meaningful discussion of sensitive topics such as race and social and economic equality.

Rhode Island attorney Richard E. Kühn talked about the importance of social media to attorneys.  Social media are part of contemporary legal practice across the board, he explained, touching on areas including lawyer advertising, client counseling, evidentiary investigation and spoliation, and trial practice and voir dire.  He recited recent case rulings demonstrating that failure to take social media into account, for example in evidentiary investigation, may result in a finding of legal malpractice.

DLA Piper attorney Richard P. Flaggert (not speaking on behalf of clients or the firm) gave the keynote address of the symposium, discussing contemporary media law practice.  Flaggert, who is licensed in California, Massachusetts, and England and Wales, started off by reminding that Shakespeare's "kill all the lawyers" lines was an admonition against unethical or incompetent practice, not actually an indictment of the professional.

He then spoke about two key doctrinal developments in media law practice.  First, he discussed the potential impact on free speech and commerce of the newly adopted EU Copyright Directive, in particular the article 11 "link tax" and the article 13 "upload filter measure."  Both threaten a chilling effect, he explained.  The former purports to give copyright protection to even a "snippet"—the actual word, undefined in the law—of content, putting at risk a range of content from Google news aggregation to "your blog."  Meanwhile article 13 imposes the burden of protecting against copyright infringement on ISPs, abandoning reliance on the notice-and-takedown approach of the U.S. Digital Millennium Copyright Act.  As a result, even "your blog" content might be tied up for weeks or longer as ISPs mull over whether you have violated copyright, likely prompting prophylactic censorship.  I note: not unlike Europe's approach to the right to be forgotten, now miring Google in a new administrative bureaucracy, not to mention the risk of Goliath gate-keeping under non-transparent private-sector control.  

Second, Flaggert talked about the problem of copyright and live fan captures of sporting events and the like.  As technology improves and recording devices become harder to detect and control, event providers such as sporting authorities will have a more difficult time policing the difference between the odd fan photo and the HD-streaming pirate.  The French solution has been to regulate, Flaggert explained, giving near absolute control to providers, a strategy of obviously problematic dimension.  Meanwhile in the United States, no body of intellectual property law, such as federal copyright or state common law, seems up to addressing the problem.  Event providers are confounded at the choice between loss of control of their intellectual property and alienation of their fan base with its abiding affection for social media.  Meanwhile the problem poses a threat to our fine-line precedents and the delicate balance between INS v. AP IP rights and the "hot news" doctrine, which has kept the peace for decades.

The village idiot moderated the first panel. Here
he is about to laugh at one of his own bad jokes.
Once a lawyer who represented ESPN before it ceded its design to bring Premier League coverage to America, I asked Flaggert 1:1 whether NBC, with its unsatisfying and impossibly expensive array of cannibalized Premiere League coverage for U.S. viewers, intends to be destroying soccer in America, or is just doing so indifferently.  He shared his frustration with access to Liverpool matches.  I'm not sure why one would necessarily want to see Liverpool, unless they were playing directly against ManC.  But I appreciate his empathy.

A big congratulations to the UMass Law Review, especially editor Casey Shannon, for executing a superb symposium, with my sincere thanks for bringing these talents to our campus.

Saturday, March 23, 2019

Upcoming at UMass Dartmouth/Law: 1L talks public radio and Hurricane Maria; UMass Law Review hosts media law symposium

Two events coming up at UMass Dartmouth and UMass Law!



First on Tuesday, March 26, at 4 p.m. in the Grand Reading Room of the Carney Library at UMass Dartmouth, Ricardo Serrano, a first-year UMass Law student from Puerto Rico, will participate in a program of the UMass Dartmouth English Department on the critical role of public radio amid natural disaster and in times of human need—specifically the role of the University of Puerto Rico-Mayagüez student-run radio station during Hurricane Maria.  Serrano was president of the radio station at the time of the hurricane and creator of the Radio Colegial podcast Fatiga Mental.  No advance registration is required.  From UMass Dartmouth Public Affairs:

The power of non-profit radio to sustain a community will be discussed by a panel hosted by the English Department and The Public’s Radio on Tuesday, March 26, at 4 p.m. in the Grand Reading Room. Panelists include Ricardo Serrano, a UMass Law student who ran the University of Puerto Rico radio station during Hurricane Maria in 2017; Professor Lisa Maya Knauer (Sociology/Anthropology), who studies the impact of community radio in Guatemala; Professor Richard Peltz-Steele (Law); and Sally Eisele, News Editor at The Public's Radio. Full-time Lecturer Caitlin Amaral (English), a former award-winning writer and producer for WGBH Interactive in Boston, will moderate the conversation.




Next, from 9 a.m. on Thursday, March 28, in the Moot Court Room of the UMass Law School, the UMass Law hosts the symposium, Navigating a New Reality: A Multi-Platform Look at Media and the Law.  With compelling speakers from legal education and law practice all day long, the program will conclude in the afternoon with a keynote address from media attorney Richard P. Flaggert, a partner at DLA Piper.  From DLA Piper:

A dual-qualified (US/UK) attorney and solicitor, Richard Flaggert focuses his global practice on entertainment, media, and communications matters, as well as counselling clients in intellectual property transactional matters, brand strategy and integrity, enforcement of trademark and copyright assets worldwide, prosecution and risk analysis, licensing, false advertising and new media matters.

Ric regularly negotiates and provides advice relating to talent, sponsorship, advertising, entertainment, publishing and other media issues for professional sports and sports/esports franchise and facility owners, sports media, consumer products, and technology clients. He also counsels clients with respect to licensing, and rights acquisition.

Ric regularly provides counsel to programming networks and other rights holders across a full spectrum of legal and strategic business matters, including domestic and international affiliate distribution agreements, licensing, digital, multiplatform and satellite distribution, new media, Internet, and emerging technologies, as well as FCC and other regulatory matters.

Richard is a member of various outside counsel teams, providing day-to-day oversight of branding, media, broadcasting and entertainment matters, and directs strategy for several global franchises, including at ESPN. 

Advance registration free, but requested, at umasslawreview.org.

Monday, February 25, 2019

Beyond anthropomorphism: Research posits post-humanist animal rights

Tomorrow the UMass Law Review will ceremoniously launch its volume 14.  Included therein is a deep, thought-provoking work on animal rights and welfare by Barnaby McLaughlin, '19, himself a teacher in the English Department at Rhode Island College.  The paper, "A Conspiracy of Life: A Posthumanist Critique of Appoaches to Animal Rights in the Law," is available online from the law review.  I'm proud to say I was a reader on this project, though it was decidedly one of those I-got-more-than-I-gave scenarios.  I'll take my Ph.D now, please.  Here is the abstract.

Near the end of his life, Jacques Derrida, one of the most influential philosophers of the twentieth century, turned his attention from the traditional focus of philosophy, humans and humanity, to an emerging field of philosophical concern, animals. Interestingly, Derrida claimed in an address entitled The Animal That Therefore I Am that, 

since I began writing, in fact, I believe I have dedicated [my work] to the question of the living and of the living animal. For me that will always have been the most important and decisive question. I have addressed it a thousand times, either directly or obliquely, by means of readings of all the philosophers I have taken an interest in. . . .

Derrida’s insistence that the question of the animal has always been the focus of his work reflects an interesting turn in philosophy at the end of the twentieth century, where the primacy of the human was rightfully being challenged, and the lives of animals were being considered on their own terms. Increasingly, the shift in focus from the primacy of the human to a more thoughtful consideration of animals has moved outside of just philosophy into other academic fields. These developments have been reflected in the emerging interdisciplinary field of posthumanism. Posthumanism, inclusive of all disciplines, seeks to shed the legacy of liberal humanism and the primacy of the human and instead consider all the interests of those that the human shares the world with (including animals, plants, technology, et cetera). Curiously however, while posthumanism has had an impact in most disciplines, outside of a few scholars, it is absent in the legal field (both in academia and in practice). Where the status of animals in the law has been challenged, it has largely been done through arguments derived from the legacy of liberal humanism. The two most significant challenges to the status of animals in the law have been mounted by the Nonhuman Rights Project in the United States, and the Great Ape Project, which has primarily been successful in New Zealand and Spain. Both projects have sought to expand legal rights to hominids, though each has adopted different strategies. The Nonhuman Rights Project has sought to use arguments within existing legal paradigms to force the courts to recognize chimpanzees as “persons,” whereas the Great Ape project has intentionally avoided court (for fear of setting unfavorable precedents) and favored pressing change through legislation. Ultimately however, both projects are thoroughly rooted in liberal humanism and advance their arguments through proximity claims—the idea that certain animals, in these cases, apes, deserve legal consideration because of their similarity to humans.

This paper is an interdisciplinary comparative analysis of the Nonhuman Rights Project’s failures in the United States and the Great Ape Project’s success in New Zealand. The success of the legislative approach of the Great Ape Project demonstrates the need to approach these arguments outside of the courtroom to avoid hostile judges, philosophical legacies, and archaic precedents. However, the Great Ape Project does not go far enough in expanding the rights of other beings as it relies on emphasizing similarities with humans as the sole reason for extending rights, leaving other beings, even higher order mammals like dolphins, without inclusion— and a real possibility that any such inclusion would forever be cut off. Therefore, this paper proposes the need for a posthumanist foundation for pursuing the rights of other beings through legislative means.

Wednesday, February 20, 2019

Remembering 'very unique,' 'extremely historic,' pre- post-literate politics

Comedic media have recently lampooned with delight the President's sing-song description of litigation over the "national emergency" at the border.  (My favorites are Trevor Noah's "Guitar Hero" take and Stephen Colbert's "Torah reading."  Jake Tapper told Colbert aptly that Trump's description might actually prove correct.)  Then Bernie Sanders entered the race and admonished media that if his ideas were once fringe, they are no more.  Access to higher education always has been a key part of his platform.

This confluence of events made me nostalgic for the quixotic character of the savant President Bartlett of The West Wing (1999-2006).  To be clear, this is not a political statement: I'm not condemning Trump, nor endorsing Bernie, nor, least of all, saying anything about the politics of Martin Sheen, Rob Lowe, and Allison Janney.  I just wanted for a moment to set politics aside and revel in the appeal of a President who appreciates good writing and the power of language.  So I looked up this video introduction to West Wing season 2, episode 9, "Galileo V," aired November 29, 2000—ten months before September 11.  O simpler times and innocent idealism.


Hat tip to Kayla Venckauskas, UMass Law '19—editor-in-chief of the UMass Law Review, 2018 Rappaport Fellow, ALDF scholarship winner, and survivor extraordinaire of my 1L Torts class—for reminding me of this gem.  (If any of my media law colleagues still want to jump into this year's Law and Media Symposium on March 28, get in touch ASAP, and I'll do my best to hook you up.)

Monday, February 18, 2019

International arbitration, U.S. common law collide in skilled student note

I have been remiss not to mention earlier an incisive work on arbitration law by Chad Yates, '19. "Manifest Disregard in International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, or Ugly" is available online from 13:2 UMass Law ReviewHere is the abstract.

Manifest disregard is a common law reason for not enforcing an arbitration award. This principle applies when the arbitrator knew and understood the law, but the arbitrator disregarded the applicable law. Presently, the United States Supreme Court has not made a definite decision on whether manifest disregard is still a valid reason for vacating the award (known as “vacatur”), and the Court is highly deferential to arbitrator decisions. Consequently, the lower courts are split on the issue. For international commercial arbitration awards, manifest disregard can only apply to a foreign award that is decided under United States law or in the United States. This Note will argue that manifest disregard should still apply to arbitration awards. However, arbitration contract clauses would be improved with the addition of language for appeals based upon manifest disregard to an arbitration appeals tribunal. The customary goal of arbitration is to provide a confidential, cost effective and expedited resolution of contract disputes. Therefore, an arbitration contract clause requiring that an appeals tribunal decide all manifest disregard questions would further these traditional arbitration goals.

Mr. Yates excelled in my 1L Torts class two years ago and also in Comparative Law (co-taught by the better regarded Dean Peltz-Steele).  I admit that my delay in reading this article is owed to my own shortcoming, as I suffer from commercial legis MEGO disorder.  I nevertheless recognize this article as well worth the, uh, investment, especially if commercial arbitration is your jam. Moreover, I am hopeful that Chad will get around to publishing some of the excellent research he's done on India in comparative law.  You can get a flavor of that work from his January entry on the UMass Law Review blog, "Comparative Law for India: The U.S. Digital Media Sales Company’s Destination for Business Process Outsourcing."  See also more on the blog.

A shout out of gratitude to Perry S. Granof, of Granof International Group, contributor of the chapter, "Introduction to Alternative Dispute Resolution in International Business Transactions," to the book, Resolving Insurance Claim Disputes Before Trial (ABA TIPS 2018).  The consummate colleague and an exceptional lawyer, Perry generously lectured my Comparative Law class via Zoom, on the subject of international arbitration, and fueled Chad's interest in the area.

Sunday, February 11, 2018

UMass Law SALDF hosts speaker to explain service animals and ADA compliance

The UMass Law chapters of the Student Animal Legal Defense Fund (SALDF) and the Asian Pacific Law Students Associations (APALSA) co-hosted speakers including Evan C. Bjorklund, general counsel of the Massachusetts Office on Disability (MOD), in late January for a public event about service dogs and public accommodation laws.  Bjorklund's talk was recorded and produced for air by DCTV educational access.  View the video at DCTV here.
Evan Bjorklund on DCTV: Service Animals and ADA Compliance
UMass Law APALSA is led by Mali Lim, who by day is human services coordinator for community education and diversity for the City of New Bedford, Massachusetts.  UMass Law SALDF officers are Kayla Venckauskas, president; Barnaby McLaughlin, vice president; Kerina Silva, treasurer; and Kseniya Ruzanova, secretary.  Venckauskas was just appointed 2018-2019 editor in chief of the UMass Law Review and McLaughlin 2018-2019 I.T. editor.  Ruzanova is a member of Team 1L Torts.  Yours truly serves as faculty co-adviser for SALDF.

Wednesday, November 1, 2017

Villanova symposium seeks to rejuvenate 50-year-old U.S. FOIA

Panel 5 on global and comparative perspectives: moderater Fran Burns, professor of practice in the Department of Public Administration at Villanova University; Anamarija Musa, commissioner of information for the Republic of Croatia; Suzanne J. Piotrowski, associate professor in the School of Public Affairs and Administration, Rutgers University-Newark; and the smiling village idiot.  Photo graciously provided by Catherine E. Wilson, associate professor and chair of the Department of Public Administration at Villanova University.


The week before last, the Villanova Law Review at the Villanova University Charles Widger School of Law hosted the Norman J. Shachoy Symposium on Fifty Years Under the Freedom of Information Act, 1967-2017.  I was privileged to participate and owe a debt of gratitude to Villanova for extraordinary hospitality, especially Law Review coordinators Jourdan Simko and Valerie Caras (current masthead); faculty coordinator Professor Tuan Samahon, himself an accomplished teacher and scholar in constitutional law and government transparency and accountability; and Arthur J. Kania Dean and Professor of Law Mark C. Alexander.

Persons with a broad range and wealth of experience and perspective on the federal FOIA participated in the symposium, offering a mind-boggling array of insights into the state of our 50-year-old transparency regime and its prospects for reform.  Professor Samahon aptly opened the conference by asking participants to think about how the course of history might have been different had transparency been the rule of the day before 1967, say, at the time of the Bay of Pigs or the Gulf of Tonkin.  What far-reaching impact would there be of transformed American involvement in those events?  The question points to historic mistakes and lives that might have been saved, yes; but also to unknown alternatives and dangers unwittingly averted.


The U.S. FOIA was among the first of its kind in the modern world and ground-breaking in its scope.  Professor Samahon later in the afternoon, asking a question of my own panel, pointed to the startling success of the FOIA, lest we take it for granted: a beacon of transparency and accountability in the world, the operationalization of an essential condition for a successful democracy, and a feature of government that is sorely wanting in so many countries today, with real human suffering as the price of opacity and corruption.

At the same time, program participants seemed in universal agreement:  Our FOIA is showing its age.  More dynamic transparency instruments in foreign and international law—incubated in the so-called “second-generation” constitutional and human rights systems of Western Europe and emerging democracies around the world—have made vast strides in government transparency and accountability, leaving our FOIA looking, to put it mildly, rather tired and worn around the edges.  Speaking a cutting truth, Judicial Watch attorney Michael Bekesha said in an afternoon panel that to really make FOIA work, the current statute, 5 U.S.C. § 552, needs to be “blown up,” and a new law constructed in its place.  My own talk looked to innovations in FOI, or "access to information" (ATI) in Africa for inspiration.

Villanova video-recorded the day-long program, and the Law Review plans a symposium issue with contributions from the panelists, to be published later next year.  So stay tuned for more on this important subject.  Meanwhile, I will paste below the program, to whet the appetite.

The Villanova Law Review Norman J. Shachoy Symposium:
Fifty Years Under the Freedom of Information Act, 1967-2017
Friday, October 20, 2017, 9 a.m. to 4:30 p.m.

Welcome
  • Mark C. Alexander, Arthur J. Kania Dean and Professor of Law, Villanova University Charles Widger School of Law
  • Tuan Samahon, Professor of Law, Villanova University Charles Widger School of Law
Panel 1: The “On the Ground” Operation of FOIA
  • Susan Long, Associate Professor of Managerial Statistics and Director of the TRAC Research Center, Whitman School of Management, Syracuse University
  • Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
  • Moderated by Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
Panel 2: The Press, the Academy, and FOIA
  • David McGraw, Deputy General Counsel, The New York Times
  • Jason Leopold, Senior Investigative Reporter, BuzzFeed News
  • David M. Barrett, Professor of Political Science, Villanova University
  • Moderated by Terry Mutchler, Mutchler Lyons
Panel 3: Congressional Oversight of the Executive Branch
  • Katy Rother, Senior Counsel, Committee on Oversight and Government Reform, U.S. House of Representatives
  • Aram A. Gavoor, Visiting Associate Professor of Law, The George Washington University Law School
  • Moderated by Catherine J. Lanctot, Professor of Law, Villanova University Charles Widger School of Law
Panel 4: Resolving FOIA Disputes
  • Alina Semo, Director, Office of Government Information Services, National Archives and Records Administration
  • Marcia Berman, Assistant Branch Director, Civil Division, Federal Programs Branch, U.S. Department of Justice
  • Michael Bekesha, Attorney, Judicial Watch, Inc.
  • Moderated by Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
Panel 5: State and Global Comparative Perspectives
  • Anamarija Musa, Commissioner of Information, Republic of Croatia
  • Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
  • Richard J. Peltz-Steele, Professor of Law, University of Massachusetts School of Law
  • Moderated by Fran Burns, Professor of Practice, Villanova University