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

Wednesday, October 12, 2022

'Behind Bars': Petroff article explains how secrecy shields private prison labor from public scrutiny

Alyssa Petroff, a judicial law clerk at the Supreme Judicial Court of Maine, has published Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool in the new volume 4, number 2, of The Journal of Civic Information.

In a foreword, Journal Editor David Cuillier, professor of journalism at the University of Arizona, wrote,

Alyssa Petroff educated me on the exploitative private for-profit prison complex in my home state of Arizona—shrouded in secrecy because of a public records law interpreted in favor of corporations. I was astounded by her research findings.... She has a great career ahead of her, based on the eye-popping revelations in Behind Bars....

An Arizona native and 2022 law school graduate, Petroff started work on the article with a paper in my Freedom of Information Law class. Her finished work won the 2021-2022 student writing competition of The Journal of Civic Information, an honor co-sponsored by the Brechner Center for Freedom of Information and accompanied by a $2,000 cash prize.

Here is the abstract:

Prisons run by private corporations in the United States have at hand a pool of individuals who are, by law, required to work while they are incarcerated. This article examines the secrecy behind the use of inmate labor, including on-the-job injuries  sustained by prisoners, focusing on the state of Arizona as a case study. Ultimately, the  article recommends that states create oversight boards of private prison systems or allow private prison records to be accessible through already existing public records laws.

Attorney Petroff was a student also in my Comparative Law class. So I benefited immensely and from her presence and participation, ceaselessly inquisitive and gracious, in law school. I share Professor Cuillier's enthusiasm for her budding career as she cuts her teeth in judicial writing at the Maine high court.

The article, again, is Alyssa Petroff, Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool, 4:2 J. Civic Info. 1 (2022).

Monday, July 18, 2022

In law symposium, Enríquez follows up genetics book

CRISPR-Cas9 editing of the genome
(NIH Image Gallery CC BY-NC 2.0 via Flickr)
My friend and once-upon-a-time law student Paul Enríquez, J.D., LL.M., Ph.D. (LinkedIn, SSRN), in the spring published The Law, Science, and Policy of Genome Editing in the Boston University Law Review Online (2022).

Dr. Enríquez published the remarkable book Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science with Cambridge University Press last year. The BU Law Review then invited him to discuss his work as the centerpiece of a Zoom symposium, which I was privileged to attend, in the fall.

In the present article, Enríquez engages with and responds to the dialog of the symposium. Other contributors are Dana Carroll, Katherine Drabiak, Henry T. Greely, Jacob S. Sherkow, Sonia M. Suter, Naomi R. Cahn, Allison M. Whelan, and Michele Goodwin.

Here is the introduction.

Genome editing is the most significant breakthrough of our generation. Rewriting Nature explores the intersection of science, law, and policy as it relates to this powerful technology. Since the manuscript went to press, genome-editing developments have continued apace. Researchers have reported encouraging results from the first clinical trials to treat β-thalassemia and Sickle-Cell Disease, the first wheat-crop variety that is resistant to a crippling fungal disease and features no growth or yield deficits, and proof-of-concept data establishing the therapeutic effects of the first clinical trial involving the injection of a therapy directly into the bloodstream of patients suffering from a genetic, neurological disease. Chinese regulators promulgated rules to approve gene-edited crops. These and other developments are testament to the expansive reach and promise of genome editing. Rewriting Nature showcases the technology’s power to transform what we eat, how we provide healthcare, how we confront the challenges of global climate change, who we are as human beings, and more.

One of my goals in writing the book was to help spur robust dialogue and debate about the future of genome editing and the synergistic roles that law, science and public policy can play in promoting or hindering specific uses of the technology. I am grateful to the Boston University Law Review for organizing this symposium on Rewriting Nature and bringing together an extraordinary group of gifted scholars, academics, entrepreneurs, and thinkers, including several members of the National Academy of Sciences, as well as scientists and lawyers to engage in diverse discussions of my book.... I am encouraged by the consonance on a vast range of ideas among participants but even more so by the disagreement, as it presents opportunities for engagement and progress. My Essay, thus, focuses on the hard questions and challenges that spring from our disagreements, which allowed me to clarify, refine, and expand on ideas presented in Rewriting Nature and to articulate new ones that point towards future work.

Friday, July 8, 2022

Student comparative law research spans sport, schools, drugs, recidivism, regs, copyright, crypto


He who learns teaches.

widely cited as an Ethiopian or African proverb, the statement has parallels in other cultures and is sometimes paired with the Latin "qui docet discit," "he who teaches learns"


Image by Gordon Johnson via Pixabay

Because we are reasonable people, we can all agree that Torts is the most important course in law school.

Comparative Law, however, takes the cake as the best course to teach. That's because one can teach it without exhaustive knowledge of the doctrinal subject matter. For no one knows the law of every jurisdiction in the world.

Thus, for me and my co-teacher, a supremely skilled embedded librarian, Comparative Law is a never-ending opportunity to learn from our students. And our students in spring 2022, as in past semesters, had plenty to teach us.

This is a selection of the ambitious paper topics that our Comparative Law students tackled in the spring.

United States, Vietnam. Firaas Z. Akbar, Free Enterprise Versus Freedom to Enterprise: A Comparative Analysis of Entrepreneurship Rights in the United States and Vietnam. Despite pronounced cultural and ideological differences between the republics of the United States and Vietnam, one of the goals shared by both societies is promoting entrepreneurship among their citizens. While not explicitly provided by the U.S. Constitution, free enterprise has impliedly been read into its language through a series of judicial decisions since the nation's founding, within a legal system where courts are bound to follow precedent. Vietnam enshrined a broad right to entrepreneurship into its constitution as part of an effort to transition to a more market-friendly economy. Yet constitutionalism under Vietnam's civil law system works differently, where rights require legislative substantiation to take effect. This analysis explores how Vietnam gives effect to this right and compares this model of promoting entrepreneurship to the U.S. approach.

United Kingdom (pre-/post- Brexit), Switzerland. Alessandro Balbo Forero, The Impact of Brexit on Football. There has been much debate and discussion regarding the UK exit from the European Union in 2020. Brexit had an impact on the sports industry as a whole, leading to debate and discussion by legal sport scholars on football, in particular, the English Premier League (EPL), and whether Brexit is good or bad. The unrestricted movement of players across the European Union is the catalyst for competition and player power. Prior to Brexit, players enjoyed the freedom of movement between EU Member States when their contracts expired. The current Governing Body Endorsement (GBE) requirements established after Brexit restrict player movement, and, thus, players are no longer able to sign with teams in the UK without first satisfying specific requirements that are tied to their respective countries' FIFA rankings. Although players are able to appeal to an exception panel, it is still not guaranteed to be granted a GBE. The Swiss model of player immigration would provide the UK with the best of both worlds. Brexit would still be in place, thus enjoying the benefits along with it, like unrestricted EU broadcasting regulations, and players would enjoy the freedom of movement once granted by the European Court of Justice in the Bosman ruling. The Swiss model satisfies both the FA and EPL, because highly qualified, homegrown players would continue to be produced while maintaining the multicultural, global product that is the EPL.

United States, England. Elizabeth Cabral-Townson, Using a Comparative Analysis of Special Education Disputes in the United States and England to Develop a Model that Better Serves Schools and Families.  Every country with a formal public education system has a responsibility to meet the needs of all enrolled students, including those with disabilities. Many countries have developed laws or regulations that describe their special education processes and procedures. In some instances, parents and school districts disagree about what a student with a disability requires to make progress in school. In these instances, there are several different dispute resolution techniques that can be an efficient way to resolve issues. Both the United States and England have developed laws and regulations specifically related to special education disputes. There are both similarities and differences to how the United States and England handle special education disputes, and elements from each country may be used to develop a more universal model. A preferred approach may be a consistently used three-tiered system that ensures the timely resolution of special education disputes using no-cost or low-cost options.

United States, Norway. Emma Clune, Prison Education as Means to Reduce Recidivism: A Comparative Analysis of the Effects of Prison Education Programs and Principles of Punishment in Norway and the United States. Access to prison education programs differs greatly between the United States and Norway. In the United States, prison education programs are not widely accessible due to issues such as lack of funding and resources. The programs that are available do not often prepare incarcerated persons for workplace environments after release. In Norway, where education is viewed as a fundamental right, all inmates are eligible to participate in education programs, and every prison facility provides access to academic and vocational programming. Norwegian prison education programs operate based on the "principle of normality," the idea that life inside prison should emulate life after release.  Research confirms that participation in educational programming while incarcerated reduces an offender's likelihood of recidivating by improving the offender's mental health and increasing the likelihood of employment after release. Emulating Norway's prison education programs and adopting the principles of Norway's penal system could be a means to reduce high recidivism rates and ultimately decrease the rapidly growing prison population in the United States.

United States, Canada. Judith Patricia Cruz Caballero, A Comparative Analysis of Refugee Law in the United States and Canada. The United States and Canada are world-leading nations for their international law policies. Refugees are a group of the population displaced from their home country due to war, discrimination, or violence. The United Nations created the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees to create a better humanitarian world. However, as the refugee crisis continue to increase over the next few years, the refugee policies of host nations will impact the support refugees receive. This paper examines refugees' procedures, immigration processes, and funding structures provided to refugees in both countries. In addition, the paper aims to compare each
nation's method of handling refugees in a time of international crisis. Finally, after analyzing each nation's policy areas, the paper provides recommendations to help increase the efficiency and effectiveness of refugee response in the United States and Canada.

Netherlands, Colorado. Ryan Gulley, Comparing the Legalization of Drugs in the Netherlands and Colorado: Recommendations for the Future. This paper compares the similarities and differences between the recent implementation of changes regarding drug use within the legal systems of the country of the Netherlands and the state of Colorado. The paper begins with a brief introduction to both systems. Following the introduction is a brief history of the criminalization of drugs within the two systems, as well as the reason for the changes that have been made in response. The current landscape of the legal systems will then be laid out, including where society stands today. I then examine the effects of those changes. The paper concludes by providing recommendations based on the lessons learned from the changes that were made in both areas.

United States, European Union. Austin Gutierrez, SOPA & PIPA vs. Article 17 "Directive on Copyright in the Digital Single Market." This paper compares the failed U.S. legislation, the Protect IP Act (PIPA) and Stop Online Privacy Act (SOPA), to the currently enacted Directive (EU) 2019/790, Directive on Copyright in the Digital Single Market, with a focus on Article 17. This paper goes through the history and then the past and current critiques of each legislation. This paper then creates a hypothetical bill using methodologies from both legislations. This paper has discovered that the current critics of U.S. online piracy protection believe that the U.S. should legislate in favor of website blocking. The EU critics believe that the authorization requirement establishes a mandatory requirement of general monitoring, which may be too much of a request from the website owners. In conclusion, this paper decides that it is in the best interest of the United States to let other nations develop and test online piracy protection while protecting current copyright holders through the use of website blocking for piracy focused websites. 

United States, China, Germany. Christopher Hampton, Comparative Analysis of Crypto Assets/Blockchain Regulation Between PRC & Germany to Form a Spectrum Based Guide for Impending U.S. Regulations. Crypto-assets and blockchain technology have created an array of regulatory responses globally, most of which address the risks associated with illicit activities, consumer protection, and financial stability. The choice of fitting crypto into traditional frameworks, modifying existing regimes, or forming bespoke regulations to address these risks inherently creates strategic variations across the board. However, this range of approaches creates a guiding spectrum for late movers, namely the United States, to survey during impending crypto-asset deliberations. By synthesizing Germany's and China's leading, yet antithetical, approaches to the same priorities, this paper reveals both sides of the spectrum (i.e., acceptance v. full ban), details how the respective strategies address the given concerns, and weighs perceived strengths and weaknesses of their enactments. Further, upon consideration of the United States' current regulatory uncertainty and objectives, recommendations are proffered in promotion of sustainable growth and innovation for the industry. Although the collective knowledge necessary for proper regulations is not solely within this analysis, adequate and sustainable decisions can only be made through considerations as equally expansive and flexible as the emerging industry of focus. Similarly limited, policymakers would be prudent to include market participants in their deliberations and promote international teamwork. Ultimately, regulatory clarity is necessary in any regard for the industry to truly evolve, though the path of evolution depends heavily on U.S. decisions. 

Germany, Russia.  Nicholas Hansen, A Comparative Examination of Environmental Regulatory Policy Models in the Federal Republic of Germany and the Russian Federation. Regulation of the economic activities of any sovereign nation can be foundational in determinations of status, power, and recognition in modern geopolitics. In modern environmental regulation theory, two primary characterizations of economic regulations are found. This analysis compares the use of "process-integrated" environmental policy, to the use of "end-of-pipe" environmental policy, and their relative benefits and hindrances. Process-integrated regulatory policy involves a more direct intervention in production processes and business action, whereas end-of-pipe regulatory policy involves the establishment of penalties for businesses that exceed their allotted carbon output, and violate industrial or automotive emission laws.  These policies have disparate impacts on the economic health of the sovereignties in which they are employed, differing levels of legal security for businesses operating in these sovereignties, and these impacts have been modeled and cataloged in this article.

This author posits that the time-frame around which either model is implemented, and the substantive form of these model regulations have an indirect impact on the long-term economic growth and propensity for foreign investment.  This hypothesis is most principally demonstrated by a comparative examination of the "process-integrated" model presently in use by the Federal Republic of Germany, and the "end-of-pipe" model presently in use by the Russian Federation. This article seeks to explain the characterization of the German and Russian regulatory models as an "end-of-pipe" or "process integrated" model and the statistical and legal evidence that supports this conclusion. In addition, Explanations of the German and Russian environmental regulation and their relative impact on the economic health and growth of their respective sovereignties are given.

Israel, Palestine. Rachel Kilgallen, The Unique Legal Systems of Israeli Settlements. The Israeli-Palestinian conflict is one of the world's most enduring conflicts, the Israeli occupation of the West Bank and the Gaza Strip reaching 55 years. Within Israeli settlements, where Israelis and Palestinians must coexist, an abounding number of controversies have arisen. One such controversy revolves around the legal system adopted within these settlements. Upon Israel's occupation of the West Bank and Gaza (along with the Sinai Peninsula and Golan Heights) in June 1967, the Israeli military immediately established military courts in both territories in order to try offenses harming security and public order. Technically speaking, Israeli military and civilian courts hold "concurrent" jurisdiction to try Israelis for offenses related to security. The policy for the last four decades, however, has been to refrain from prosecuting Israeli civilians in the military system, despite critiques that doing so constitutes partial annexation of occupied territory. The result is that Israeli and Palestinian neighbors accused of committing the very same crimes in the very same territory are arrested, prosecuted, and sentenced in drastically different systems—each featuring staggeringly disparate levels of due process protections. The International community seems to be in concurrence that Israel's actions regarding its settlements violate international law on many levels. At this point in time, all measures taken against Israel, in consequence, have been in vain. The longstanding conflict between Israel and Palestine endures.

United States, Germany. Samantha Rapping, The Psychological Toll of Being Prosecuted as an Adult: A Comparative Analysis of Juvenile Prosecution and Incarceration in the United States and Germany. The United States has one of the most complex criminal justice systems, which significantly differs from other systems in the world, specifically Germany. One prominent difference between these two countries is how they handle juvenile offenders. The United States focuses merely on punishment and incapacitation, whereas Germany focuses on education and rehabilitation. As a result of the harsh treatment that juvenile offenders endure, such as frequent sexual and physical abuse, their mental health severely plummets. Juveniles are at a higher risk for suicide, depression, and anxiety. As a consequence, juvenile offenders are likely to re-offend post-release. Germany’s recidivism rates are extremely low as a result of the educational approaches and opportunities that are available to juvenile inmates such as therapy, metalworking, farming, etc. The positive reinforcement that occurs while juveniles are incarcerated leads to an increase in a juvenile inmates overall attitude and positive outlook for the future. The United States should adopt Germany's educational approach to its juvenile offenders.


Students: If you spy any errors here, don't hesitate to contact me for correction. If you were in this class and I failed to include you here, that's because I don't have an abstract from you. Please send one, and I'll be happy to add it.

Publishers and employers: Contact me if I can help put you in touch with any of these promising law students, some of whom are now recent grads!

Flags from Flagpedia.net.

Thursday, November 4, 2021

BU journal features Enríquez book on genome editing

Tomorrow, Friday, November 5, beginning at 10 a.m., the Boston University Law Review Online hosts an online symposium on the book, Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science.

The symposium features author Paul Enríquez, a law student of mine once upon a long time ago.  Dr. Enríquez's fascinating book was featured here on The Savory Tort in July. Here is the symposium précis (which is drawn from the book jacket):

History will mark the twenty-first century as the dawn of the age of precise genetic manipulation. Breakthroughs in genome editing are poised to enable humankind to fundamentally transform life on Earth. Those familiar with genome editing understand its potential to revolutionize civilization in ways that surpass the impact of the discovery of electricity and the development of gunpowder, the atomic bomb, or the Internet. Significant questions regarding how society should promote or hinder genome editing loom large in the horizon. And it is up to humans to decide the fate of this powerful technology. Please join the Boston University Law Review Online for a virtual and thought-provoking, interdisciplinary symposium on Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science (... 2021) to discuss the complex legal, scientific, policy, ethical, political, economic, and social issues concerning this emerging technology.

The book is available from Cambridge University Press and popular retailers.

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.