Showing posts with label legal research. Show all posts
Showing posts with label legal research. Show all posts

Thursday, September 9, 2021

So now you care about academic mobbing

Angry Mob by Robert Couse-Baker, CC BY 2.0
Princeton politics professor Keith E. Whittington (on the blog) has a wisely worded op-ed, on The Volokh Conspiracy at Reason, on the too often abdicated responsibility of university administrators to push back against viewpoint-based campus mobbing of faculty.

"It is now a familiar pattern," he writes: attack, petition, social media campaign, demand for termination.  Of the university's duty, he writes:

University presidents have a responsibility in such a situation. It should go without saying, but unfortunately it does not, that they have a responsibility to actually live up to their constitutional and contractual responsibilities and refrain from sanctioning the faculty member for saying something that someone finds controversial. They should insist that harassment and threats directed against members of the faculty will not be tolerated. Professors should at least be confident that when the mobs arrive, pitchforks in hand, that university leaders will not flinch and give in to the demands of the mob.

I hope the piece hits the desk of every university president in the land with a thunderclap of j'accuse.

Yet it is fascinating to me to see described today as cliché what was once fringe.  Canadian sociologist Kenneth Westhues, professor emeritus at the University of Waterloo, published his Workplace Mobbing in Academe (2004) seventeen years ago, and that book was built on his earlier Eliminating Professors (1998).

By the time I met Ken in 2009, he was already the world's leading expert on academic mobbing.  He still is.  Westhues's website is still the online clearinghouse on mobbing as a sociological phenomenon. But he's almost never cited, at least in the legal lit.  I find eight references to Westhues on Westlaw's JLR database, and none in the last dozen years.

At a program at the Association of American Law Schools (AALS) in 2010, I accepted the invitation of Westhues and Syracuse University law professor Robert Ashford to speak of my experience.  Ashford perceived a worthwhile connection to his inventive work in socio-economics, and Westhues flattered me with my name as a participle

The splash we made at AALS and in legal academics eleven years ago might be described well as mostly indifferent curiosity.  Mostly modifies indifferent, not curiosity.  

I wrote in the Journal of College and University Law in 2009 about the need for broader academic freedom, beyond published research and into the professorial "penumbra."  I presented at AAUP, besides AALS.  The article was cited once in a 2011 bibliography and once in 2013.  (Thanks, Profs. Benson and Jones.)  And that was that.

Not until cancel culture reached the well known coastal scholars of academia's elite institutions did mobbing hit the mainstream.  Now a lot of important people are wringing their hands over academic freedom and waning tenure.

Too bad they don't seem able to find my article.  Or Westhues's work.  Is there really a wheel until it's invented at a "top" school?

It's nice to see serious people having serious thoughts about academic freedom, at last.  But it's too late to give solace to a generation of victim-scholars.  And it's probably too late to resuscitate intellectual liberty on campus, for at least a generation yet.

Friday, May 14, 2021

Comparative law papers examine fin reg, human rights, environment, labor, piracy, sovereignty, and more

Image by Gordon Johnson via Pixabay
Lately, I've been part of interviewing faculty candidates.  In that awkward part of the interview when the interviewee gets to ask questions, and the interviewee really wants to know, "What are you going to pay me?, because we could put an end to this charade right now if you're not serious," but doesn't ask that for fear she will look like it's only about the money, and really, why fear that? would you work for free? I wouldn't; there's a word for that, but the interviewee asks instead some dopey question to make the interviewer feel good, along the lines, "How can it be that you are so fabulous?," the subtext of which is not, but should be, "you, who really doesn't come off as bright or spirited enough to have pulled off fabulous," I'm wearing a hoodie after all, even if we are on Zoom, an interviewee recently asked me, "What do you like most about your job?"

Well, you asked, so I answer:  I never tire of seeing the ingenuity, inventiveness, and range of interests and life experience that law students bring to the table.  And a seminar as wide-ranging as Comparative Law gives the most ingenious and inventive a chance to shine.  This spring it's been my privilege to be informed, educated, and thought-provoked by a range of papers, and I am eager to share here a selection of abstracts, with authors' permission.  These students have outdone themselves in a challenging course, despite an ogre of a professor and limited access to resources during the pandemic.  Filled with (I hope, authentic) pride, I congratulate each and every one.

Laura Z. Copland, Understanding Human Trafficking: A Comparative Analysis of the Prosecution, Protection, and Prevention Laws in the United States and Honduras.  Human trafficking is a high-profile global issue, generating billions of dollars at the expense of millions of victims. Trafficking occurs to minors and adults in urban and rural communities. Victims have diverse socioeconomic backgrounds, varied levels of education, and can be documented or undocumented. Traffickers target victims using tailored recruitment methods they find effective in compelling individuals to fall into exploitation. In recent years, both the United States and Honduras have attempted to provide legal redress to the lack of focus placed upon the effects of human trafficking in legal scholarship. Anti-human trafficking legislation in these jurisdictions has differed in their specific approaches. Still, both have sought to implement prosecutorial guidelines to support the execution of the three main pillars of the fight against human trafficking. These three pillars are prosecution, protection, and prevention.  This note compares the similarities and differences in the attainment of the three pillars by both jurisdictions. Moreover, this note illustrates that despite trafficking’s tremendous impact, most people in positions of authority in both the United States and Honduras still need to learn about what human trafficking is, how to identify it, and how to combat it effectively.

Dolapo D. Emmanuel, The Inadequacy of the Insanity Defense in the United States and England.  According to Our World Data, as of 2018, nearly one billion individuals globally suffer from a mental health condition. Conversely, media portrayals of mental health conditions are both comparatively rare and largely inaccurate. Though insanity is a legal concept rather than a clinical condition, the preceding statement applies. Dramatizations of legal insanity have both obfuscated and marginalized the concept such that even individuals with academic or professional legal footing are confused about its place in criminal law. This confusion in turn fosters perceptions that may not be accurate. One of the most popular claims about the insanity defense is that it is a powerful tool criminal defendants employ to escape the legal consequences of their criminal conduct. To determine the extent of this alleged power, this paper aims to discern the adequacy of the insanity defense in the United States and England based on three factors: the congruency between the medical and legal perspective of mental illness, the utility of required expert testimony, and the stability of the defense’s place in criminal law. As such, it seems, despite the facts that there has been more evolution in the insanity defense’s standard in the United States, and that the standard is more difficult to satisfy in England, the insanity defense is more effective in England than it is in the United States. However, this paper identifies continuing inadequacies in both countries.

Sydney Anne Goldstein, The Force of Discipline: Laws of Good Order and Discipline of the Armed Forces of the United States and the Russian Federation.  From the primordial beginnings of combat to the ongoing conflicts in the Middle East, factions of humanity continue to assemble and take up arms to defend their way of being or vindicate their honor. Of course, there is strength in numbers along with the breadth and depth of their capabilities, but the real magnitude of military power comes from the discipline and conduct of those serving. Out of the countries currently grasping for global influence, the United States and the Russian Federation have climbed to the highest echelons of military power on the international stage. But with this elevated stature comes the pressure to maintain diplomacy coupled with the indelible friction of conflict.  In this paper, I survey the historical development of military jurisprudence of the United States and Russia to compare their legal institutions' impact on military power.

Richard Grace, The Modern Myth of the Efficient Market Hypothesis. The turn of the century wave of innovative technology companies, colloquially “FAANG” (Facebook, Apple, Amazon, Netflix, and Google), set in motion a revolution of the global economy.  Trade is more efficient than at any point in human history, as are the global financial markets.  Technology has expanded the reach of the instrumentalities of global finance to previously incomprehensible levels, allowing anyone with a smartphone to connect to stock, currency, bond, and commodities markets, and to execute trades anywhere you have a cell signal.  This realm, previously restricted to professional brokerages and traders, has been opened to the everyday individuals.  These individuals have come to be known as “retail,” or non-professional investors.  In response to these changing market conditions, large institutional brokerages have begun to market to retail investors, and numerous smaller brokerages have been formed with the sole purpose of providing the “little guy” access to the world’s markets.  The school of minnows can now play in uncharted territory, in the deep end alongside the whales.  This article aims to explore the impacts of the expanding role of retail investors on the global financial market.  Unsurprisingly, the changing market has resulted in many changes in the law.  The focal points of interest will be the responses in the law to the surge in retail trading in the United States and the United Kingdom.  As both jurisdictions have operated under the same common law tradition, the comparative value of juxtaposition of the present responses should provide useful comparisons as to the efficacy of certain laws, rules, and regulations passed to precipitate issues perceived by the global market.  I will first consider the frameworks under which retail investors operate; the regulations and laws that make up the rules of the game.  These rules include the "Pattern Day Trader Rule," and the trading of security derivatives in the form of option contracts.  Second, I will evaluate changes in monetization of retail trading at the brokerage level, most notably, the "Payment for Order Flow" system, originally devised by the infamous Bernie Madoff.  The financial market is inherently global, and therefore, changes in the law and in regulations within the United States impact all retail investors, regardless of their country of origin.  The result of this global system is that a routine practice in the U.S. markets may be completely prohibited within the U.K.’s, and vice versa; the same securities are being traded with two different sets of rules governing the transactions.

Brooke Loneker, Designer or Dupe? Assessing the Development of the United States: A Comparative Analysis Between Single-Use Plastic Recycling Laws Established in the United States and PerúIn what millennials might describe as a “Freaky Friday” scenario, this paper explores the notion of a "first world" country following in the steps of a "third world" country’s national legislation banning single-use plastics. In December of 2018, the nation of Perú passed and quickly enforced Law No. 30884, speaking directly to the prohibition of unnecessary or non-recyclable single-use plastics, which, under the civil law system, made the law applicable to all provinces, regions, and the Province of Lima. The United States, in contrast, with a federal legal system, does not have a national legislation that regards single-use plastics. California, a leading state among the United States in environmental regulation, has passed state laws regarding single-use plastic bans. This paper compares Perú’s Law No. 30884 and California’s Senate Bill No. 54, as amended in 2020. This paper focuses on the cost of enacting this legislation, the revenue opportunities provided through enacting this legislation, and the similarities of Perú's and California’s laws. In understanding these comparisons, this paper argues that implementing a structure that is successful in a country such as Perú would be cost efficient, promising to the state/federal budget, and would promote the health and general welfare of the U.S. population.

Ryan Manning, Counter-Piracy: A Comparative Analysis on Two Multinational Organizations’ Fight Against Piracy.  As piracy spiked around the horn of Africa, several organizations and countries sought to combat it. Although a prominent actor in counter-piracy efforts, NATO was not the only organization making strides to deter this maritime threat. Although initially reluctant, member states of the Shanghai Cooperation Organization (SCO), specifically China, made efforts to alleviate a dangerous situation. By addressing two different responses to the threat of pirates surrounding the horn of Africa, this paper compares NATO’s anti-piracy operations with China’s through the SCO. The paper first introduces what drove the pirates to start hijacking merchant vessels and the evolution of their tactics, causing them to become a threat to maritime security. Following that, NATO is analyzed, describing how it became involved in counter-piracy; then, the SCO’s lack of response as an alliance and China’s efforts to protect Chinese vessels from hijackings. Last, the missions of NATO and the SCO are analyzed. NATO’s integration of outside forces and cooperation has proved to be a beneficial tactic in counter-piracy operations, and the SCO was reluctant to involve itself in the operations. Disagreements among member states of the SCO prevented organizational cooperation, in turn, causing China to handle the threats on imports and exports unilaterally. Whereas NATO had extensive maritime experience, China used counter-piracy operations to develop its capabilities and provide support for vessels not of Chinese origin. Further, where NATO freely cooperated with organizations and states outside of its members, China was initially reluctant to provide support and struggled to allow other members to work alongside.  Yet as declines in pirate attacks have been related to multinational cooperation, China’s participation with NATO and other operations has become a crucial contribution to further deterrence of piracy.

Brett Mueller, Animal DiplomacyIn a time when common ground between the United States and China seems to be eroding, one area of shared goals could provide fertile ground to help ease tension: wildlife. While both countries seek to preserve naturally occurring creatures, historic practices and differing viewpoints on just how to achieve that goal have left the picture of wildlife protection looking vastly different in each. While the approaches may be different, different is not synonymous with ineffectual (or wrong), and it is important to understand the underlying complexities that exist in each society in order to chart a reasonable path forward. Of course, the relationship between natural creatures and mankind has developed over many centuries, and will continue its indefinite transformation as time goes on. Instead of casting judgment from afar, the United States and China would be wise to learn from each other’s successes and failures. Regardless of other sources of disagreement, when it comes to wildlife preservation it is time for the two world superpowers to put on a unified front to set a strong example for the rest of the world.

Sara O'Brien, A Comparative View of Irish and Israel Citizenship Laws as Products of Settler-ColonialismIrish and Israeli citizenship laws are compared by activists because of their seeming similarity; they both provide citizenship to those born abroad under certain conditions or circumstances. However, their approaches to citizenship are not as similar as they seem. Each nation has imposed certain restrictions on claiming citizenship, and as we see, those restrictions and limitations effectuate particular purposes.  The purpose of this paper is to explore how the laws differ, and how they work to accomplish particular political goals. The respective approaches appear to be motivated either in moving beyond a settler-colonial regime, as in Ireland, or continuing one, as in Israel. By examining the Israeli Citizenship Act (1952) and Law of Return closely, a stark difference in how people of different religion are treated becomes clear. In practice, the laws make it easier for foreign nationals of the Jewish faith to immigrate to Israel, while making it difficult for Palestinians to gain citizenship as both a practical and political manner. In Ireland, the post-settler-colonial citizenship scheme is visible in the relative religious and ethnic neutrality of the laws. Ireland allows for descendent citizenship provided the applicant meets a handful of requirements, and acquisition is structured in a manner that does not consider religion, race, or national origin, and does so explicitly to make Ireland more inclusive after the Good Friday Agreement was ratified.  Together, they provide examples of how active settler-colonialism can manifest in citizenship laws, as well as how citizenship laws can be used to uphold the ideals of post-colonial governments.

Spencer K. Schneider, The Necessary Evil of Environmental Federalism in the U.S. and Brazil.  Brazil and the United States are respectively the fifth and third largest countries on earth. As a result, both countries are composed of many diverse environments, from forests to waterways, and these environments require careful management and conservation. But both countries suffer from inconsistent environmental regulation that is primarily due to the frameworks of federalism that shape the relationships among each country’s national, state, and local governments. These frameworks of shared power are crucial to effective environmental regulation and protection, but, these frameworks are also at the root of some of environmental policy’s largest problems today. Understanding how federalism functions in environmental policy is crucial to solving some of the biggest problems in environmental regulation that exist today.

Ricardo J. Serrano R., Jíbaro Nation: Las Crónicas de la No Incorporación (Jíbaro Nation: The Chronicles of Non-incorporation).  Puerto Rico en los últimos quinientos años ha tenido una compleja existencia colonial que todavía se ve plasmada en el presente. En este estudio investigamos más profundamente el efecto de la Carta Autonómica en el estatus colonial de Puerto Rico bajo España, sus limitaciones, y existencia de una noción de soberanía introducida por los líderes nacionalistas de Puerto Rico. También, luego del 1898 examinamos la integración de Puerto Rico como territorio no incorporado a los Estados Unidos y como este proceso de integración ha afectado a Puerto Rico y su estatus colonial. Al mismo tiempo, se hace un contraste entre el Puerto Rico bajo la Carta Autonómica de 1897 y el Puerto rico bajo los Casos Insulares y el Acta Foraker para comparar los derechos legitimados por cada sistema. Por último, se establece un esquema que comprende el trato de Puerto Rico desde el 1898 hasta la ratificación de la asamblea constituyente de 1951.  (Author's translation: Puerto Rico in the last five hundred years has had a complex colonial existence that is still embodied in the present. In this study we investigate more deeply the effect of the autonomic charter on Puerto Rico's colonial status under Spain, its limitations, and the existence of a notion of sovereignty introduced by Puerto Rico's nationalist leaders. Also, we examine the integration of Puerto Rico, after 1898, as a territory not incorporated into the United States and how this non-integration has affected Puerto Rico and its colonial status. At the same time, a contrast is made between Puerto Rico under the 1897 Autonomy Charter and under the Insular Cases and the Foraker Act to compare the rights legitimized by each system.  Finally, a scheme is established comprising Puerto Rico’s treatment from 1898 until the ratification of the 1951 Constituent Assembly.)

Matthew R. Stevens, Collectivism, Individualism, and Their Respective Costs of Human Life During the Covid-19 Pandemic.  On the final day of 2019, December 31, the World Health Organization discovered a media statement from the Wuhan Municipal Health Commission describing new cases of “viral pneumonia” in Wuhan, People’s Republic of China. One year later, this viral pneumonia would claim the lives of two million souls. While almost every country and human on the planet has experienced the COVID-19 Pandemic in one way or another, disparate impacts have arisen throughout the globe. One curiosity inducing dichotomy is that of South Korean and the United States, suffering 1,700 deaths and 551,000 deaths, respectively. This paper dives into a comparative study of the COVID-19 responses of South Korea and the United States through the scope of collectivism and individualism. This paper explores whether the respective responses have direct ties to the country’s individualistic or collectivist culture, and if any connection can be drawn to the relative success of one cultural response over the other.

Jhoanna Sylio, Reexamining the Seasonal Agricultural Workers Program (SAWP) and Possible Improvements Based on the Administration of the H-2A Temporary Agricultural Workers ProgramTemporary agricultural foreign workers are admitted to the United States and Canada through guest worker programs to perform low-skill seasonal or temporary agricultural labor.  Foreign workers fill jobs that farmers are otherwise unable to fill with a local workforce despite availability of jobs and requirement of very little formal education. In the United States, employers are able to bring in foreign workers from 80 countries to fill temporary agricultural work under the H-2A program.  In Canada, employers are able to source seasonal workers from Mexico and 11 participating Caribbean countries under the Seasonal Agricultural Worker Program (“SAWP”). The paper examines the legal framework of the H-2A program in the United States and the administration of the H-2A program in North Carolina, specifically. This examination serves as a basis of comparison with the administration of SAWP in Canada, focusing on Ontario. The paper overviews the guest worker programs in the American and Canadian contexts, and  the important role migrant agricultural workers play in ensuring food security in these labor-destination countries. The paper concludes by identifying measures that could be adopted in Ontario to effectively increase protections and  improve conditions experienced by migrant agricultural workers under the SAWP.

Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look At the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment.  The differences and similarities of the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor, after the “yellow vest” movement in 2018, demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This article analyzes the social and legal context in both countries that demonstrates that the superimposition of these values through law is a continuing modern western trend. The key difference is that, while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers, as compared with the American model, which largely exists merely as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms.  This article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.

National and U.S. state flags courtesy of Flagpedia.net.  Puerto Rico historical flags from Welcome to Puerto Rico.  Ontario flag from Britannica.com.  NATO and SCO seals from Wikimedia Commons.

Friday, January 29, 2021

New England poli sci group announces virtual meeting, extends CFP deadline for faculty, grad students

NEPSA art
The New England Political Science Association (NEPSA) has decided that its spring 2021 annual conference will be all virtual.

The call for proposals (CFP) deadline has been extended to February 19, 2021. NEPSA will convene on April 23 and 24, 2021.  The CFP is open to faculty and graduate students.  I have tremendously enjoyed this conference in past years and found it to be a collegial, inclusive, and supportive environment for scholars both junior and senior, and both political science and interdisciplinary, including law students. 

NEPSA subject-matter sections are: American Politics, Comparative and Canadian Politics, International Relations, Political Theory, Politics and History, Public Law, Public Policy, and Technology and Politics.

Monday, December 21, 2020

Law students ponder litigant Trump

(Cross-posted at Trump Litigation Seminar and The Savory Tort.) In the fall semester, I had the privilege of exploring Trump litigation in depth with a team of law students in my Trump Litigation Seminar.  These students are to be commended for plowing through more than 27,000 pages of court records, which are compiled and publicly available at our course blogsite, a project of The Savory Tort.  In addition to our case reviews and discussions, students completed skills exercises in discovery, pleading, public relations, negotiation, and statutory interpretation, and rounded out the semester with research and writing.  From the final papers, with author permission, here are selected abstracts.

Screenshot of PAC ad, via WNYC

Jessi Dusenberry, Anti-SLAPP Law and Donald J. Trump for President, Inc. v. Northland Television, LLC.  President Donald Trump filed a lawsuit against a small news organization in Wisconsin for defamation.  The news organization, WJFW-TV, ran an advertisement that showed President Trump calling COVID-19 a “hoax,” as a graph tracking the rate of infections showed an upward track on the screen.  Many news stations ran the same ad, but the Trump campaign chose to sue only WJFW-TV, which is owned by a small company that has only two other local TV stations.  The political organization that produced the ad later joined the case as a defendant.  The lawsuit was initially filed in Circuit Court, but later was removed to federal court.  The lawsuit against WJFW-TV follows President Trump’s legal strategy of filing frivolous lawsuits to force the defendant to spend money in legal fees to get the case dismissed.

Unlike many other states, Wisconsin doesn’t have an anti-SLAPP law to prevent the use of the courts to intimidate people who are exercising their First Amendment rights.  This paper provides general background on strategic lawsuits against public participation (SLAPPs) and the need for anti-SLAPP legislation, as well as the jurisdictional differences in drafting anti-SLAPP legislation.  The paper goes into further detail on California’s anti-SLAPP legislation, beginning with the types of speech covered by the statute.  The paper also analyzes significant judicial interpretations of the anti-SLAPP legislation in California.  Finally, the paper explores the applicability of California’s anti-SLAPP protections to media defendants.

From Pixabay by Gerd Altmann

Richard Grace, The Truth, the Whole Truth, and Everything but the Truth: Tort Reform and Social Media.  The tort of defamation has been changed irreconcilably by the advent of social media, which have provided famous or notorious plaintiffs additional means to combat and remedy alleged damage to their reputations, regardless of the merits, leaving plaintiffs of more ordinary means no alternative but to rely on a system that is heavily defendant-favored and cost-prohibitive.  In the “Twitter Age,” a period of revolutionary growth in connectivity and ability to spread information globally via social media, the ultimate affirmative defense to defamation, truth, seems almost to have become subjective, with division and polarization increasing at an alarming rate.  Reasoned conclusions have been replaced by echo chambers.  Whether it is “alternative facts,” or the notion that being “morally right” is more important than being “precisely, factually, and semantically correct,” the rapid growth in ability to editorialize and disseminate "truth" has wider implications for the “search for the truth” of modern litigation.

This paper first aims to discuss several theories of reform to the tort of defamation.  The paper explores the actions of a serial defamation litigant, Donald Trump, specifically in the matters of Trump v. O’Brien and Miss Universe L.P. v. Monnin, the latter involving an entity owned by Trump, which were selected to demonstrate the ability of a defamation plaintiff to leverage the public sphere as an extra-judicial remedy.  These cases were chosen to represent pre- and post-Twitter outcomes.  O’Brien was decided prior to Twitter becoming a social media mainstay, whereas Miss Universe was more recent.  Finally, the paper considers the external issues this gap in tort remedy for reputational damage has caused, particularly with regard to § 230 of the Communications Decency Act, which has provided social media companies, service providers for purposes of the act, with statutory immunity from tort actions for defamation.  Ultimately, the jurisprudence of defamation law has enabled a two-tiered system of remedies: for those who must bear the cost and burden of litigation, and for those who can litigate the matter outside of the courtroom, in the court of public opinion.

Pa. electoral map from 2012 (CC BY-SA 3.0)

Alyssa McCartney, The President Who Cries Voter Fraud: A Recurring Theme of Baseless Allegations.  In 2019, Pennsylvania enacted its first update to the Election Code in nearly eighty years. On a bipartisan vote, the General Assembly passed a measure to allow “no reason” mail-in ballots. Act 77 allows any registered voter to request a ballot by mail, fill it out in the time framed outlined, and send it back to be processed. In the wake of a global pandemic that left Americans unable to leave their homes, this necessary update would cause quite the controversy in months to come. Explaining a new process comes with challenges, but tack on a President purposely fanning the flames of doubt, mail-in ballots have been tough to sell. The primary election used the updated process for the first time on June 2, 2020. Receiving nothing but praises and positive feedback, the measures enacted seemed to keep tensions at ease. That is, until the sitting President’s re-election campaign filed suit against Pennsylvania Secretary of State Kathy Boockvar and the Commonwealth’s sixty-seven counties. As President Donald J. Trump continued to allege baseless voter fraud accusations, the American people grew more restless in a year that’s already full of uncertainty. As a key swing state in presidential elections, Pennsylvania took center stage in Trump’s war on the election “rigged by Democrats.”

This article aims to address Trump’s relentless allegations of voter fraud—something that is not new for him. By analyzing Pennsylvania and offering an insight into Centre County election protocols, this article will squash the baseless accusations to show the election results are fair, free, and not riddled with fraud. Although President Trump refuses to concede in hopes of the United States Supreme Court intervening, he lacks any standing and cannot offer substantial evidence to support his claims. In short, these frivolous lawsuits are an attempt to undermine our democratic process by a man who has no shame spinning the narrative to suit his needs.

From Flickr by Gage Skidmore (CC BY-SA 2.0)

Natalie Newsom, Make America Great Again.  In 2015, Donald Trump announced that he was running for President of the United States in a controversial statement outside his towering building in New York City. What ensued in the months following was a campaign that shattered presidential norms with Trump having a scattered history of sexual misconduct allegations, zero experience in elected office, and a tendency to make offensive and derogatory comments. These comments caused Rafael Oliveras López de Victoria to file a lawsuit on September 24, 2015, to ban Donald Trump from becoming President. Oliveras López argued, albeit unsuccessfully, that there is a particular caliber of moral solvency expected of U.S. Presidents, and that the court should intervene in situations in which a presidential candidate fails to meet that criterion.

The most interest facet of the Oliveras López lawsuit is what it reveals about American politics and morality. As it stands now, making offensive comments aimed at protected classes in the United States will not stop you from becoming President, the most highly regarded public-servant position in our nation. That fact seems to run afoul of another phenomenon that exists in the United States today, in which people may be fired from their government jobs for social media posts featuring alcohol or expletives. This leaves the question of why a double-standard exists. This paper aims to address the problem of that gap between the law and morality and discusses what the case filed by Mr. Oliveras López teaches us about restoring faith in American decency.

E. Jean Carroll in 2006 by Julieannesmo (CC BY-SA 3.0)
Pedro Raposo, Trump, Sexual Assault, and Defamation.  Defamation has proven a useful tool to survivors who have been keeping their accusations to themselves for fear of coming forward, and have since managed the strength to come forward against their abusers. Notably, many individuals who have been abused in the past may have concealed their stories for too long, and the statute of limitations for sexual assault have run. With a defamation suit, survivors are able to reopen the issue of their sexual assaults by addressing the accused's statements.  President Donald Trump has not been able to escape this recent wave of sexual misconduct allegations ushered in by the #metoo movement. To date, there have been nineteen women who have accused Trump of sexual misconduct. The three cases focused on here were brought by former “Apprentice” contestant Summer Zervos, adult film star Stephanie Clifford, and author E. Jean Carroll.  Two of these cases have reached variable results, with the court ruling the allegation in the Zervos case to be actionable against Trump, while the defamation claim in Clifford’s case was defeated by Trump’s legal team. 

Snapshot of Trump deposition in CZ-National

Spencer K. Schneider, Paying for Privacy.  As public opinion of the courts diminishes, it is important to consider the role that public access to the courts, or lack thereof, plays in this public opinion. In the United States, courts have a long history of public access to both proceedings and documents, much of which is grounded in the First Amendment. However, this access is not absolute, and the wealthy and powerful often seek to keep court documents under seal and out of the public’s view. One of these wealthy and power individuals is Donald Trump, a frequent litigator to say the least. This paper analyzes court decisions in Trump Old Post Office LLC v. CZ-National and Low v. Trump University, respectively, to make public and seal the video depositions of Donald Trump taken during each case’s discovery, and the effect that allowing wealthy parties to seal court documents can have on the public perception of the courts.

José Andrés on Flickr by Adam Fagen (CC BY-NC-SA 2.0)

Ricardo J. Serrano Rodriguez, Trump Old Post Office LLC v. Topo Atrio LLC and the Court of Public Opinion.  This paper attempts an exploratory study of the plausibility of public opinion influence in the case of Topo Atrio through media outlets such as newspapers, television, radio, and social media platforms. The ways that public opinion is formed have changed throughout our history. Since the times of the public square, public opinion influences the way that individuals conduct themselves in society. This influence changes the dynamics of social interaction in a deep manner and polarizes the judgment of the public. The internet and social media have expanded the reach of the public sphere to a point of near immediate dissemination of information. Now, newspapers are not only physical, as the name suggest, but digital also, which multiplies the publisher’s reach. Donald Trump is a public figure who also has made a brand out of his name and relied on this brand in his quest for political approval. In the case of Topo Atrio, ... José Andrés and Donald Trump, through their corporations, entered into an agreement in which Andrés would run a restaurant in Trump’s Old Post Office Hotel. The controversial comments about immigration made by Donald Trump when he announced his candidacy created a bustle of publicity that followed him to the end of his presidential term. But could it really influence the court of law?

Pixabay by Christian Dorn

Matthew R. Stevens, The Art of the SLAPP.  This paper dives into two cases, Makaeff v. Trump University and Clifford v. Trump, and dissects the anti-SLAPP issues and motions made in the cases. More specifically, the paper views the anti-SLAPP issues in these cases through the broader scope of anti-SLAPP legislation’s underlying policy goals. While extremely important and inextricably connected to the legal results of each case, the application of substantive law is not the primary focus of this paper. There is a plethora of variables that distinguish the two cases, but the key point of divergence on which this paper focuses is Trump being a defamation plaintiff in one case, and a defamation defendant in the other. It is also important to narrow the scope of SLAPP suits themselves. SLAPP suits can apply to far more than just free speech, but this paper focuses the scope of SLAPP suits through the lens of defamation claims. The paper’s ultimate goal is to use these two cases as examples to see whether anti-SLAPP legislation is operating as intended within the context of the greater policy goals of the legislation.

O'Brien's book (Amazon)
Judson Watt, Press Protections in Civil Discovery: Trump v. O'Brien.  Donald Trump is a well-known public figure who is famous for his litigious nature. In 2006, he filed a defamation lawsuit against a well-known reporter and author in the New Jersey courts. This lawsuit survived a motion to dismiss and was allowed to move into the pre-trial discovery phase. Donald Trump was allowed to pepper the defendant with requests for document production and interrogatories concerning his confidential sources. This paper addresses the decision of the trial court to allow pretrial discovery to proceed even though Trump failed to meet his burden to establish actual malice by the defendant, as required by the Supreme Court since New York Times v. Sullivan. This paper shows that the trial court disregarded statutes and case law by allowing the case to continue into the discovery phase.

This paper gives a basic overview of the hurdles faced by public figures in filing a defamation case. It examines and explains journalistic privileges in reporting on public figures and how these privileges were applied by the trial court. It examines various statutes and case law binding in New Jersey and New York at the time of the suit. This paper shows that this case was wrongly decided from the beginning and that it never should have moved into pretrial discovery. The trial court failed properly to apply the precedents of New Jersey or New York, and, as a result of this failing, a reporter was subjected to an endless stream of interrogatories, discovery, and legal harassment by a wealthy public figure. Indeed, this story is the embodiment of the motivations for press shield laws, and the importance of these laws in a democratic society.

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 26, 2020

Legal scholars overlook scholarship about state FOIA, but dedicated academics toil for state transparency

Professor Robert Steinbuch and I aim to draw attention to the undersung work of state-law transparency  scholars through our recent publication in the Rutgers Law Record.  Here is the introductory paragraph.

We have read with interest Christina Koningisor’s publication, Transparency Deserts. While there is much to be lauded in the work – all access advocates would like to see more scholarship and publicity about the importance of transparency and accountability – we are disheartened by the article’s failure to recognize the extant vibrant body of scholarship and activism in state freedom of information law.

[¶] We, moreover, find this omission characteristic of a broader ignorance in legal academia of the sweat and toil of legal scholars, scholar-practitioners, and interdisciplinary academics who analyze and advocate for state transparency laws. This blind spot particularly manifests, unfortunately, among those at elite (typically coastal) law schools, who generally contribute vitally to the literature of the undoubtedly important federal transparency regime. These federal freedom-of-information scholars too often neglect the critical importance of state transparency laws – as well as state-transparency legal academics.

[¶] Quite in contrast, state-law access advocates generally acknowledge the value of federal statutory analogs, often referencing federal norms and practices comparatively, while, nonetheless, working upon the apt assumption that state access laws, en masse, have a greater day-to-day impact in improving Americans’ lives and in enhancing democratic accountability in America than does the federal Freedom of Information Act. Koningisor’s article evidences this disappointing tension. 

The publication is Transparency Blind Spot: A Response to Transparency Deserts, 48 Rutgers L. Rec. 1 (2020).  The publication is available for download from SSRN.  

Christina Koningisor, author of the referenced Transparency Deserts, kindly responded on the FOI listserv and gave me permission to share her thoughts.  Included is a link to her ongoing work.  Professor Steinbuch and I could not be happier to engage in a dialog that educates scholars and the public on the importance of state FOIA.

[T]hank you to Rick and Rob for taking the time to so thoughtfully respond to my piece. I sincerely appreciate it. And I take your points of criticism. The article certainly could have benefited from drawing more upon the excellent state-level scholarship that you cite in your response to my piece. I will also be sure, moving forward, to draw more heavily from the accomplished work being done by communications and journalism scholars. The point that I meant to make in my article, and which I should have stated more clearly, is that there is less overarching scholarship on public records laws across the fifty states. Of course, there are excellent state-by-state studies and critiques, some of which I cite in my piece, and many of which I do not, and which you have helpfully flagged in your response. But I was more interested in the work that has been done looking at the state of these laws as a whole. At this level, we can begin to make generalizations about what is working and what is not that are more difficult to observe when focusing solely on a single state. Rick and Rob's response seems to suggest that such surveys are inherently flawed, because they will inevitably be underinclusive and cannot possibly account for the variation across the fifty state legal regimes and the hundreds of thousands of state and local government entities. I agree—I explicitly make this point, and acknowledge the limitations of tackling such a diverse array of laws and government entities in my article's methodology section. But I believe it is nonetheless important to take stock of how these laws operate nationwide, so long as we are forthright and honest about the limitations of any fifty-state survey. I think there is value in and space in the literature for both state-by-state deep-dives and overarching cross-state examinations. Rick and Rob do highlight, in their appendix, some of the broader cross-state scholarship on state public records law that I failed to cite, most of which are published in communications and journalism journals. Again, I concede this point and agree that I should become more familiar with this interdisciplinary work.

I also want to note briefly that my Article reaches a somewhat more nuanced conclusion than transparency is simply worse at the state and local level. I do stress the significant advantages that many state public records laws have over FOIA, including the more rapid response times, the absence of a national security apparatus and classification process impeding access, and, often, the greater accessibility of state and local records officers, among other advantages. I also note that many of these state laws suffer drawbacks when compared to FOIA: many do not have easy and relatively cheap administrative-level appeal options, for example, and the costs of records production at the state and local level can often be prohibitive. Further, although there is no national security secrecy apparatus at the state and local level, it is often exceptionally difficult to obtain records from state and local law enforcement agencies. The piece was in fact inspired by my experiences working as a lawyer at The New York Times, where, in the process of assisting reporters with their federal, state, and local records requests across the country (not just in the coastal states!), I noticed that local police departments were often the most difficult agencies to obtain records from, in some ways even more secretive and difficult to work with than even the federal intelligence agencies. But more critically, the article emphasizes that when these state laws do fail—and I think we can all agree that they sometimes do—there are fewer alternative routes for information to come to light. These transparency failures are exacerbated by broader structural features of state and local government, including reduced external checks from local media and civil society organizations, and reduced intra-governmental checks between the various branches of government. This is of course not to say that every law fails in every instance, or that there aren't many excellent civil society organizations in many places doing critical work on government transparency and oversight. Of course there are abundant examples of such laudable advocacy efforts. But there are also many places across the country where local media institutions have disappeared, civil society organizations are in dire financial straits, and intra-governmental checks are muted. The nation's access laws are remarkably diverse, and contain myriad examples of both transparency failures and successes.

Once again, I very much appreciate these thoughtful and incisive responses to my piece, and I hope to continue this conversation moving forward. I have a new state transparency law-related article, [Secrecy Creep,] forthcoming in the University of Pennsylvania Law Review. It is still quite early in the editing process, so I would love to hear any feedback and suggestions ....

Saturday, October 3, 2020

Media law journal covers social media and fair trial, mugshot privacy, 'true threat,' China's FOIA, more

The latest edition of the Journal of Media Law & Ethics (8:2, Fall/Winter 2020) spans a range of fascinating issues.  Here is the table of contents from editor Eric Easton and publisher University of Baltimore Law School.

Social Media Access, Jury Restraint and the Right to a Fair Trial
Zia Akhtar

To Post or Not To Post: The Ethics of Mugshot Websites
Mark Grabowski

The Trouble with “True Threats”
Eric P. Robinson & Morgan B. Hill

Merely Window Dressing or Substantial Authoritarian Transparency? Twelve Years of Enforcing China’s Version of Freedom of Information Law
Yong Tang

Free Expression or Protected Speech? Looking for the Concept of State Action in News
Christopher Terry, Jonathan Anderson, Sarah Kay Wiley, & Scott Memmel

A description from Dr. Easton:

In the current issue, British lawyer Zia Akhtar takes a hard look at the use of social media by jurors in criminal trials and the accompanying concern that the rights of a defendant may be prejudiced by the practice. The article advocates a legal code that would prohibit juror access to information about a defendant’s previous record.  

Mark Grabowski follows with an examination of so-called “mugshot” websites through the lens of the Society of Professional Journalists’ Code of Ethics. The article concludes that, while mugshot sites are not an inherently unethical journalism practice, many news outlets present mugshots utilizing ethically dubious methods that urgently need to be reformed.

The need for clear standards governing the kinds of communication that can be considered unprotected “true threats” is demonstrated by the analysis of Eric Robinson and Morgan Hill in our third article. The authors point out that, when the Supreme Court had the opportunity to clarify the elusive concept, in Elonis v. United States and three subsequent cases, they failed to resolve the ambiguities of the doctrine, notwithstanding the prevalence of abusive language online.

It may surprise many of readers that freedom of information is alive, if not entirely well, in China. Based on a massive quantitative study, Yong Tang suggests that enforcement of freedom of information law in the PRC seems more forceful than many Western observers would expect, although there is scant evidence that the law has led to more accountability and better governance.

Finally, Christopher Terry and associates point out that the national press has been woefully remiss in explaining why the so-called censorship of right-wing and other voices by social media platforms is not an abridgment of First Amendment rights. While all likely readers of this journal understand the concept of “state action” in the First Amendment context, the media has generally left the public clueless.

I serve on the journal's editorial board.

Sunday, May 3, 2020

Policy behind 'home confinement' as criminal sanction has evolved, law grad writes in transnational journal

A graduate of my Comparative Law class and our outgoing Student Bar Association President, Markus Aloyan, J.D. '20, has published a research article on criminal home confinement in the Trento Student Law Review.

Despite the mention of, and my current feeling of, home confinement, I didn't think that the article is related to the pandemic.  And then, lo and behold, college admission scandal perpetrators started staying home (e.g., USA Today, N.Y. Post, L.A. Times).

Here is the abstract.
Markus Aloyan
Home confinement, also known as house arrest or home detention, first appeared in the United States in the 1970s as a form of pretrial release issued after a defendant's indictment. Today, this alternative sentencing scheme possesses several additional purposes. Home confinement is imposable as a form of supervised release from incarceration and as a term of parole. More importantly, it has evolved into a condition of probation and an autonomous criminal sanction that serves in a capacity independent of probation. This article aims to show that although historically spurred in large part by the practical deficiencies of the American prison system (namely its overcrowding and excessive costs), the study of home confinement actuation promulgates a broader understanding of its effectiveness in the promotion of rehabilitation and the prevention of recidivism. Psychological and fiscal aspects will be analyzed with domestic and international (New Zealand) considerations. Concurrently, this paper draws attention to the margin of judicial discretion afforded in shaping individual home confinement implementations, and discusses its advantages and related concerns.

The article is Markus Aloyan, Home Confinement in the United States: The Evolution of Progressive Criminal Justice Reform, 2:1 Trento Student L. Rev. 109 (2020).

Friday, April 10, 2020

Report from a Social Distance: Week 3

Tort Anomalies, Other Worlds, and Fox Tales

Ready for shopping
My quarantine since returning to the United States ended last weekend, and we made a bold trip to the grocery store to refuel.  Whole Foods effectively stopped delivery here since the strike, and our nearest locally owned delivering grocer is on the opposite side of Narragansett Bay.  So we suited up with gloves and, as Rhode Island Governor Raimondo instructed, bandana masks to leave the house.  Otherwise, life isn't much different in or out of official self-quarantine.

What I'm Reading

My sabbatical plans prematurely aborted, this week involved catching up on some professional reading.  For those into legal arcana, here are the most interesting reads that crossed my virtual desk.  Other readers, feel welcome to scroll down to TV.  I'm also continuing with my church's Bible reading, which has us into the David saga of 2 Samuel, with excellent accompanying video as usual by the BibleProject.  For those who celebrate, respectively, happy Passover, and happy Easter!

Steve Hedley, Tort: The Long Good-Bye (Apr. 8, 2020).  Posted to SSRN, this paper is a fascinating survey of tort law through history, culminating in and replete with contemporary observations ripe for the unpacking.  Prof. Steve Hedley, University College Cork School of Law and Private Law Theory, sees tort law as on its way out, but not without leaving tort lawyers and scholars with plenty of work to do in the process.  As his abstract explains, "Discouraging harmful behaviour is a fundamentally different project from supporting the sick and penniless.... [W]e cannot finally say farewell to tort until all of its vital functions are replaced with better provision, which requires both political will and a fair degree of optimism – both currently rare commodities."  Consider this observation: "From the 1980s onwards in the US, ‘tort reform’ began to be code for restricting tort without replacing it with any other system – in other words, putting tort’s hitherto steady expansion into reverse."  As someone committed to tort's social value and also someone who suffers anxiety over corporatocracy, I found compelling Hedley's broader thesis that the tort system has been honed over centuries to work its aims on people, and the system is dysfunctional vis-à-vis corporations, which today account for the vast majority of tort defendants.

James Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. 957 (2019).  Causation has been a central obsession of philosophers for millennia, and it's something lawyers worry a lot about too.  I am liable for battery if I punch a compatriot at the bar.  But that conclusion assumes that the plaintiff-victim is complaining of injury that sits along a causal flow downstream from my ill intention.  What if the plaintiff suffered from a pre-existing injury, and I complicated it?  What if, subsequent to our encounter, the plaintiff's injuries were worsened by medical malpractice?  Things get more complicated when physical injury is removed from the problem.  When is an employer's discriminatory intent a legal cause of wrongful termination if the employee would have been fired anyway for misfeasance?  In tort law, contemporary American courts struggle to approximate the "ordinary" meaning and understanding of causation.  See, e.g., Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020) (SCOTUSblog).  In an ambitious project of empirical survey research, Prof. James Macleod, Brooklyn Law School, has demonstrated that despite this effort, our understanding in tort law may have diverged from ordinary understanding in important respects.

Daniel J. Solove, The Myth of the Privacy Paradox (last rev. Mar. 13, 2020).  Years ago, when privacy law was barely a thing, those of us working in freedom-of-information-advocacy circles counter-argued to personal-privacy proponents that the public's desire for privacy was belied by how readily a person would surrender name, address, and telephone number for an extremely unlikely "chance to win" ripped from a cereal-box top.  The Reporters Committee for Freedom of the Press named an influential publication after this "privacy paradox" in 1998, and my friend and colleague Charles N. Davis, now dean of journalism at Georgia, ushered the concept into the digital age.  More recently, see WNYC Note to Self's "Privacy Paradox" project (logo pictured).  Now privacy law guru Prof. Daniel Solove, George Washington Law, has turned his attention to the problem.  In a new paper, posted to SSRN in February and forthcoming in the GW Law Review, 2021, Solove explains that the paradox emerges from an error in level of abstraction.  A person's disregard for privacy in the narrow and specific context of filling out a raffle entry cannot be equated to a person's rational and more holistic notion of personal integrity.

Alien tort: Nevsun Resources Ltd. v. Araya, 2020 S.C.C. 5, [Feb. 28, 2020] (Canada).  Amid recent decades of globalization, comparatists and internationalists in U.S. tort law have been rapt with waxing and waning trends in the extraterritorial application of American law, especially under the enigmatic Alien Tort Statute (e.g., Radiolab).  The same trends are evident around the world, as national courts struggle to demarcate limits to their own power, balancing classical principles of comity and judicial restraint against burgeoning challenges to human rights coming from both public and private sectors.  In a 5-4 decision in February, the Canada Supreme Court dismissed a claim under customary international law upon compelling allegations: "Three Eritrean workers claim that they were indefinitely conscripted through Eritrea’s military service into a forced labour regime where they were required to work at a mine in Eritrea. They claim they were subjected to violent, cruel, inhuman and degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd."  The court dismissed under "act of state doctrine," an extra-constitutional principle of judicial restraint comparable in function (see, e.g., Achebe, Cooper, Hill), to foreign sovereign immunity.  HT @ Prof. Simon Baughen, Swansea University, Wales.

Climate change: Smith v. Fronterra Co-op. Grp. Ltd., [Mar. 6, 2020] N.Z.H.C. 419 (New Zealand).  In a legal era of legislative abdication, interest groups have resorted to courts around the world to combat climate change.  A victory upon an unusual statutory basis in a Dutch appellate court in 2018 (The Savory Tort, Oct. 12, 2018), upheld by the Dutch Supreme Court in 2019, lent perhaps undue optimism to the global movement, which is ongoing.  Courts in many nations have fairly determined that the judiciary is ill suited to tackle the profound policy crisis of climate change.  Accordingly, in January, the U.S. Ninth Circuit dismissed a youth class action in Oregon that had gained some traction after an indulgent district court ruling (The Savory Tort, Oct. 12, 2018).  Juliana v. United States, No. 18-36082 (9th Cir. Jan. 17, 2020).  Unremarkably, then, the New Zealand High Court decided likewise, in part, in a climate case in Auckland in March.  A plaintiff coastal land owner sued greenhouse-gas-emitting energy and dairy interests on three tort theories, "public nuisance, negligence, and breach of an inchoate duty."  The court dismissed the first two counts for reasons of, respectively, failure of injury different in kind and degree as between plaintiff and public, and failure of foreseeability.  What's interesting is what the court wrote briefly about the plaintiff's surviving "inchoate" theory:
I am reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable. As noted by [three justices on the N.Z. Supreme Court in a paper at a 2019 climate change conference in Singapore] it may be that a novel claim such as that filed by Mr Smith could result in the further evolution of the law of tort. It may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions. These are issues which can only properly be explored at trial. I am not prepared to strike out the third cause of action and foreclose on the possibility of the law of tort recognising a new duty which might assist [plaintiff] Mr Smith.
HT @ Prof. Barry Allan, University of Otago, Dunedin, N.Z., who predicts, via the Obligations Discussion Group, "that the defendants will appeal the decision that the inchoate tort is tenable, although they may act strategically and demand that this first be properly pleaded."

What I'm Watching

Goliath s3 (Amazon trailer) was so much better than s2.  Season 2 kind of sold out on the concept of Billy McBride as a civil lawyer and got drawn nearly into the realm of trite criminal procedural.  Plenty of crimes definitely happen in s3, but the legal drama centers on a class action lawsuit to save a small California town that's had its water supply stolen by a ruthless family of almond farmers.  Billy McBride (Billy Bob Thornton) and partner Patty Solis-Papagianis (Nina Arianda) are in top form, and legal TV trivium: Patty's biological mother is played by Monica Potter, who was Crane, Pool & Schmidt associate Lori Colson in Boston Legal s1 (2004-05).


Ragnarok s1 (Netflix trailer).  This six-episode Norwegian supernatural mystery is thoroughly entertaining, with top-flight dubbing into English.  It's proved a smashing success as a Netflix original—Netflix has 750,000 subscribers in Norway and 4m in Scandinavia, according to What's On Netflix—produced by Copenhagen-based SAM, and already has been green-lighted for a second season.  The show takes place in the fictional Norwegian town of Edda, which is the real southwestern, fjord-side town of Odda, where a ruthless family of manufacturing magnates have poisoned the local water supply and accelerated the melting of the glaciers (recurrent theme). Our hero, Magne (David Stakston), is a Billy Batson-like teen who gradually realizes that he's a kind of incarnation of the Norse god Thor, destined to battle evil to save his town and the environment. The story plays loosely with Norse myth, giving Magne a trickster brother, Laurits, played with Loki-worthy aplomb by Jonas Strand Gravli.

The New Pope (HBO).  Academy Award-winner John Malkovich proves his iconic status yet again in this brilliant portrayal of a weirdly enigmatic and intellectual Pope John Paul III, who ascends to the papacy upon the unusual circumstance of a comatose predecessor.  This is really a second season, a worthy sequel series to The Young Pope, in which Jude Law starred as a megalomaniacal yet magnetic and possibly truly divine Pope Pius XIII.  Negligible spoiler, mostly tease: Pius does come out of his coma, and the two great actors take the screen together before the season ends.

Altered Carbon s2 (Netflix trailer).  Dystopian science fiction at its small-screen best, this Emmy-nominated winner is back to tell more of the story of "the last Envoy" soldier Takeshi Kovacs, based on the cyberpunk novels of Richard K. Morgan.  Thanks to the plot device of human immortality through changing bodies ("resleeving"), New Orleans-born Anthony Mackie, the Avengers' Falcon, is able to take over, from s1's Joel Kinnaman, House of Cards' Will Conway, the lead role of Kovacs in s2, and muscular Mackie shines, or broods, as the case may be.  Ironically, the delightful yet ephemerally holographic character of Poe is carried over from s1 in the capable craft of Chris Conner.  Netflix also has premiered a 74-minute animated feature film in the Altered Carbon universe, Resleeved; Conner has a voice role.
Curb Your Enthusiasm s10 (HBO).  Comedy break.  Every episode is instant-classic LD. The familiar cast returns, including Jeff Garlin, who never misses an improvised punchline.


A new category this week, "I Watched, But Can't Recommend":

First, a lot of folks are talking about Kingdom, a two-season-and-counting Korean Netflix horror to sate your unhealthy bloodthirst for zombies when you've run out of Walking Dead and Z Nation.  I got through half of s1, and it couldn't hold my interest.  The zombies are secondary to a drama about entitlement to the royal throne; I had trouble following the story or caring.  If you need a zombie fix, I suggest Daybreak s1 on Netflix, though it will not get a second season.

Second, I caught up on Riverdale s4 over at CW TV, coming soon to Netflix.  It was a decent backdrop for multi-tasking, but couldn't hold my attention full-time.  It was fun for the first couple of seasons, but the characters and story have played out.  If you're missing K.J. Apa, watch The Hate U Give again while hoping his agent gets him another worthy TV vehicle.

Third, Westworld s3To be fair, I'm probably going to watch the whole thing, because I love the visuals and the addition of Aaron Paul.  But what the heck is going on?  Who are all these people?  Maybe the pieces will come together, but as of now, I'm not even sure what the show is about.

What I'm Eating

As we made it to the grocery store this week, my wife acquired the necessaries for her famous Louisiana gumbo with chicken and andouille.  The filé powder we had already, not easy to come by in New England.

Remember, as your resources permit, to #SaveOurRestaurants.  We had goat cheese burgers from Billy's last week, and this week we have our eye on Brickyard Pizza Co.

What I'm Drinking

We're very fond of Gevalia's single-origin line, and Costa Rica Special Reserve is our favorite.  Tico ag, Swedish craftsmanship.

The Foxtale Dry Gin, from Portugal, is inspired by the fox of The Little Prince (Amazon; in The New Yorker): "the ideal digestive for a night with friends"—at a proper social distance, of course.  A solid choice, though I'm hard pressed to detect any particular botanical beyond the citrus and a hint of malt.

What I'm Doing to Stay Sane


Photo by JJBers CC BY-SA 4.0
East Bay Bike Path.  I haven't been able to run with the sprained ankle I dragged home from Africa, but biking has been OK.  And luckily, as yet, Rhode Island has not closed the bike paths with the state parks.  There was a rumor of bike path closure on Nextdoor.com, and I hope that doesn't come to be.  I admit that there have been some troubling concentrations of people at bike path choke points, as in the center of East Providence.  But if the paths close, there will only be more people squeezed along busy, sidewalk-less streets, such as mine, where cars compound the corona risk.  Hear me, o Honorable Governor.

Our long national nightmare lumbers on.