Communication policy figures as factor in U.S.-India business development after pandemic

From the Summit newsletter, with me at lower left

As promised, on February 24, I joined a panel of "INBUSH ERA World Summit 2022," an international business and policy conference organized by Amity University, India, through its flagship campus at Noida, Uttar Pradesh, near Delhi.

I delivered remarks arising from my paper, "Communication Policy as a Factor in Post-Pandemic U.S.-India Business Development," available on SSRN. Here is the abstract.

For better and worse, we live in the age of the transnational corporation. That corporate landscape is dominated by a very few actors, namely the five-trillion-U.S.-dollar oligopoly of Amazon, Apple, Meta/Facebook, Alphabet/Google, and Microsoft. That market dominance has proven to be counterproductive to countless priorities, including social and economic development, civil rights, and environmental sustainability. And the problem of Big Tech’s market dominance was dramatically exacerbated by the pandemic. Now national governments are trying to figure out what to do. Today, in the context of a program about how the United States and India can move forward together to facilitate transnational business development after the pandemic, I offer observations in two dimensions. One dimension is the jurisdictional relationship of the United States and India. The other dimension is the nature of the legal challenges in the global post-pandemic business environment. These challenges range from the broad level of the competitive marketplace to the narrow level of the information ecosystem, and, en route, pass through the problem of communication regulation, which is my own area of research.

The hosts generously presented me with an "Amity Global Academic Excellence Award."

Good riddance, covid immigration testing

I took this photo in Swansea, Mass., back in January 2022 (CC BY-NC-SA 4.0 RJ Peltz-Steele).

The sign well summed up how I was feeling about the chaotic guidance coming from the federal government at the time.

I never posted the photo, but figured I'd pull it out now to celebrate the dropping of the test requirement for immigration.

Of course, I now have about $300 worth of unused tele-medicine test kits I no longer need. Incidentally, apparently, my pharmacy insurer is not obligated to reimburse me for those, despite the President's promises. Promises, promises, Joe. But that's another story.

Scholar in torts, comparative law publishes book on Chinese law, article on slow WHO pandemic response

Professor Chenglin Liu has completed two new and exciting projects of interest to lawyers and legal educators.

A torts professor on the faculty of St. Mary's University School of Law in San Antonio, Texas, Professor Liu kindly joined my Comparative Law class via Zoom in the spring to talk about coronavirus legal issues and public health regulation in the People's Republic of China.  His visit generated more discussion and questions than we had time for.

Professor Liu has now completed a landmark book, Chinese Law in Context (CAP 2021) (Amazon).  The publisher's précis reports:

Chinese Law in Context provides a unique perspective on the Chinese legal system. It first offers insight into Chinese legal history and the impact of Confucianism. Then, by examining significant scandals and corruption during the past two decades, the book analyzes constitutional law, property law, and tort law from a comparative perspective. It also covers food and drug safety laws and regulations, which are rarely addressed in other works but are increasingly critical in the context of U.S.-China bilateral trade relations.

Prof. Liu

A teacher's manual is forthcoming.

Professor Liu also has published a new article relevant to the pandemic, The World Health Organization: A Weak Defender Against Pandemics.  Consistently with Professor Liu's expertise in tort law, the article contemplates causation as between WHO management of the coronavirus and responsibility for its impact.  Here is the abstract:

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO’s delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and what could have been done—but was not done—in the early stages. Part II analyzes why the United States failed to effectively respond to the COVID-19 public health crisis. Part III concludes that the WHO did not, and in the future will not, have the power and courage to make a prompt PHEIC declaration because of institutional constraints. However, the WHO’s delay in acting was not a factual cause of the harm suffered in the United States because the Trump Administration would not have acted differently even if the WHO issued the PHEIC warning swiftly.

The article appears in 28:2 Virginia Journal of Social Policy and Law (2021).

Covid-era eviction elicits ancient injunction plea

Clameur de Haro was invoked to block the burial of William the Conqueror in 1087.

Image from Amable Tastu, La Normandie Historique (1858).

We've all seen the strain of the pandemic on our socioeconomic fabric and the rule of law.

Last week came the alarming news that a federal district judge in Texas ruled unconstitutional the eviction moratorium issued by the Centers for Disease Control.  Judge Campbell Barker held in Terkel v. CDC that the moratorium exceeded the federal power that the CDC could exercise on behalf of Congress under the Article I Commerce Clause and Necessary and Proper Clause of the U.S. Constitution.

A friend and colleague on Jersey, a Crown dependency close to France, sent along this fascinating item from the Jersey Evening Post.  A Jersey resident who was served with eviction papers after being unable to pay the mortgage invoked "an ancient legal right" called "the Clameur de Haro."  The Post explained:

To enact the Clameur the aggrieved party must go down on one knee in the location of the offence and then, with hands in the air and in the presence at least two witnesses, must call out: "Haro! Haro! Haro! A l'aide, mon Prince, on me fait tort." This translates as: "Hear me! Hear me! Hear me! Come to my aid, my Prince, for someone does me wrong." The offending activity must cease. The individual then needs to put the grievance down in writing and lodge it with the Judicial Greffe within 24 hours.

Jersey
(image of ESA Copernicus Sentinel-2 CC BY-SA 3.0 IGO)

Jersey is a fascinating study in comparative law.  One might expect the island to be legally indistinguishable from the UK, but that is not the case at all.  Jersey has its own parliament and legal system.  Unlike the UK, Jersey is not a member of the Hague Convention on the enforcement of foreign civil and commercial judgments, so a foreign entity wishing to enforce there must seek to register the judgment through a domestic legal process.

Collas Crill, "an offshore law firm that never stands still," wrote an explainer in 2018 on the Clameur de Haro in neighboring Channel Island Guernsey, where the process seems to be the same.  The explainer added, "After the cry, both the Lord's prayer and a Grace must be recited by the complainant in French."

Quartz reported how a woman in Guernsey stopped construction on a road improvement project in 2018 by invoking the Clameur de Haro.  According to Quartz, "[t]he clameur was first recorded in Norman law in the 13th century. Its use is believed to have originated in the 10th century as an appeal to Rollo, Viking founder of the Norman dynasty, according to a 2008 article in the Jersey and Guernsey Law Review by lawyer and legal historian Andrew Bridgeford."

Collas Crill lawyers further explained, "Arguably the main reason for the continued use of the Clameur is the immediacy of its effect, although in modern times an additional perceived benefit is the publicity it can draw to your cause."

How many people suffer while state unemployment office shuffles paper, issues baseless denials?

I wrote in 2020 about the pay cuts foisted on faculty and staff at UMass Dartmouth.  We're a union shop, which is weird for university faculty in the United States, but at least is supposed to be good for workers.  So for my pay cut—about 11.6%, plus $4k in professional development budget, over one calendar year, so far—the union got me, in return—wait, let me punch the numbers into the calculator—

Nothing.

I quit my union membership once and for all, before the ink dried on the union's Memorandum of Abdication.  But thanks to the compulsory representation law in Massachusetts, I'm still bound to give away anything the union, with its refined talents at the bargaining table, decides that I should give away.

Let me interject a disclaimer that I am not complaining about having a job during the pandemic.  As will become clear momentarily, I am writing about this for the very reason that my concern extends to the many persons who are not as fortunate.  I push myself every day, literally every day, to count my blessings and be grateful, and to find a way to show compassion for those facing hardships during this crisis.  Some days I do better than other days.

With regard to my personal situation, I suggest, I hope modestly, only that in exchange for a pay cut, there might have been some benefit afforded in return: maybe a leniency in job requirements, such as research or teaching load; maybe flexibility in course scheduling; maybe an "IOU" for development budget down the road.  I might could have been bought off for the price of some reference books from my wish list.  Or a new hoodie.  I can always use a hoodie.

I suggested these bargaining chips (except the hoodie) to the union.  No response.  I understand.  It takes a lot of energy and focus to give so much away in so short a time.

But this isn't about the union.  Not today.  Today I write about another bloated bureaucracy feeding ironically at taxpayer teats: the Massachusetts Department of Unemployment Assistance, or "Mass UI."

I was given the option, which I accepted, to take part of my pay cut as furlough during the holidays in December.  There was absolutely no reduction to my workload in December, so one might question the utility of a furlough.  But the idea was, the university told us if carefully to disclaim any guarantee, we could claim unemployment insurance to recover a fraction of four days' pay.  It happens that my wife, who also works for the university as an administrator, also took a pay cut (two, actually, for staff) and furlough (also two).  I'm trying to leave her out of this, and I definitely do not speak for her, so I will tell only what I have to to get my story across.

Let me interject again: As a taxpayer, I am not a fan of one financially stressed public institution shoving its accounts payable off on another financially stressed public institution.  That doesn't seem to me to be an efficient way to solve the problem of stress on the fisc.  But I don't make the rules.  We've got a kid in college.  I'm not leaving money on the table.

So we both filed, at different times in 2020, for whatever unemployment insurance we might recoup.

My wife's online account access was immediately shut down, purportedly in response to a spate of fraudulent claims received by Mass UI.  While her access was blocked, Mass UI (claims that it) sent an electronic request for documents to confirm her identity.  She didn't know about any request, because access was blocked.  She couldn't file the docs, even if she'd known to, because access was blocked.  Meanwhile, Mass UI confirmed the validity of her claim with university HR.  

And then Mass UI denied her claim anyway for supposed failure to provide ID.  She didn't even find out about the denial until months later, because, say it with me, access was blocked.

Having witnessed that mess of an experience, I set my account for hard-copy correspondence only, by mail.  Mass UI sent to me, in hard copy, a request for documents to confirm my identity.  Promptly, I returned, in hard copy, the documents requested.  Presumably, Mass UI could confirm my identity, too, and the legitimacy of my claim, with the university.  I work for the state, after all.  But I was trying to play nice.

Twenty days later, Mass UI denied my claim anyway for supposed failure to provide ID.

We both now have appeals pending.  I expect we will have to go to Boston for hearings (50 miles and two hours each way, expensive parking, different days).  As yet, the hearings have not been scheduled.  My wife's first claim dates back to the summer, in the heyday of federal subsidies.  Good times.

As I just wrote to the Commonwealth Attorney General, at some point, misfeasance slides into malfeasance.  I don't know what's going on at Mass UI.  But it's inexcusable.

And that brings me back around to people who are really hurt by this kind of misfeasance or malfeasance by public officials.  People already are suffering for so many reasons: pandemic risk, joblessness, homelessness, systemic disadvantages of race and socioeconomics.  If my family's experience with Mass UI has resulted in two out of two legitimate, easily confirmed claims being rejected on nakedly indefensible, if not outrightly false, grounds, then how many claims are being wrongfully denied for claimants who are depending on unemployment assistance in a time of crisis?

Look, we're lucky.  I know it.  We're both lawyers.  We have the know-how to appeal, and to sue if necessary.  We have the flexibility in our work to adjust our schedules for hearings, and a car to go to Boston if we have to.  We make decent money, even after pay cuts, educational loan debt, and college tuition bills.  We'll be OK.

But today is one of those days that I feel like I'm falling short on compassionate action.  I should do something.  Something should be done.  

I don't know what.  Or how.

I do suspect that Mass UI is running the vaccine roll-out.

This blog is mine and mine alone, and not a product of my employer.  I speak as a private citizen, not a representative of the university, even if my writing sometimes also serves public interests, which is part of my job.  I reference my job and work profile on this blog for purpose of identification only.  While this disclaimer always pertains, I wish to emphasize it today.

UPDATE, Feb. 16, 2021: Our IDs were accepted and matters remanded from appeal to reprocessing thanks to heroic intervention, for which we are grateful, by an individual in the UMass Dartmouth HR office.  Of course, that doesn't alleviate our concerns about people in Massachusetts who are in serious need. WGBH reported on February 8 on "shocking[] dysfunction[]" in the system, having exactly the impact we feared.

Emergency orders survive constitutional scrutiny; Mass. Court cites Korean War, smallpox cases

The Massachusetts Supreme Judicial Court (SJC) ruled Thursday that pandemic emergency orders of the Commonwealth Governor were valid under the Massachusetts Civil Defense Act and public health law, rejecting challenges based in state and federal civil rights, including due process and the freedom of assembly.

Defunct Youngstown Sheet & Tube Co., 2006 (stu_spivack CC BY-SA 2.0)

The Court borrowed doctrine from U.S. constitutional law on separation of powers, Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952), a case about President Truman's seizure and operation of steel mills during the Korean War.  The SJC used Youngstown and the concurring opinion of Justice Robert H. Jackson to reason that Governor Charlie Baker acted at the zenith of executive power, because he acted within broad statutory authority.

Official portrait of Justice Jackson,
by John C. Johnsen, Collection of the
Supreme Court of the United States, via Oyez

In Youngstown, Justice Jackson set out a three-part rubric to test the strength of executive power, whether bolstered by congressional authorization, occurring amid legislative silence, or arising in defiance of legislative imprimatur.  Though not without controversy attaching to the communitarian result in the context of government seizure of private enterprise, Justice Jackson's famous test has been committed to memory by law students studying for the bar exam for generations.  Justice Jackson was Attorney General to President Franklin D. Roosevelt, so loyal to the New Deal.  Roosevelt appointed Jackson to the Court in 1941.  While a Supreme Court Justice, Jackson also served as chief U.S. prosecutor in Nuremberg after World War II.

Ruling the pandemic within the scope of "other natural causes" of emergency under the Civil Defense Act (CDA), the Court indicated also that it was not shirking its oversight role:

[W]e emphasize that not all matters that have an impact on the public health will qualify as "other natural causes" under the CDA, even though they may be naturally caused. The distinguishing characteristic of the COVID-19 pandemic is that it has created a situation that cannot be addressed solely at the local level. Only those public health crises that exceed the resources and capacities of local governments and boards of health, and therefore require the coordination and resources available under the CDA, are contemplated for coverage under the CDA. Therefore, although we hold that the COVID-19 pandemic falls within the CDA, we do not hold that all public health emergencies necessarily will fall within the CDA, nor do we hold that when the public health data regarding COVID-19 demonstrates stable improvement, the threshold will not be crossed where it no longer constitutes an emergency under the CDA.

Mass. Gov. Baker (Charlie Baker CC BY-NC-SA 2.0)

Relative to civil rights, the Court recognized the Governor's argument under Jacobson v. Massachusetts (U.S. 1905).  A federal Supreme Court case that arose in Cambridge, Massachusetts, at the turn of the century before last, Jacobson has been cited widely lately, amid the coronavirus pandemic, because in Jacobson, the Court upheld an ordinance requiring vaccination for smallpox as a valid exercise of state police power.

Critics fairly argue that Jacobson is read too broadly as a constitutional authorization of mandatory vaccination.  Among points of distinction, the upheld ordinance merely subjected an objector to a five-dollar fine—about $150 today, much less than the individual-healthcare-mandate penalty before Congress zeroed it out.  More importantly, Jacobson predates the complex system of multi-tiered constitutional scrutiny that the U.S. Supreme Court devised under the due process clauses of the Fifth and Fourteenth Amendments in the 20th century. 

Justice Cypher

The SJC quoted Jacobson's logic in some detail "as an initial matter," but declined to give the Governor carte blanche, instead applying 20th-century due-process scrutiny.  The Court rejected procedural due process arguments because the emergency orders occasioned no individual adjudication, and rejected substantive due process because the generally applicable orders satisfied rational-basis review.  The selection of "essential" businesses was non-arbitrary and did not treat disparately any protected class, such as religious institutions.

Similarly with regard to the freedom of assembly, the Court regarded the emergency orders as valid time, place, and manner restrictions, appropriately narrowly tailored to a significant government interest in intermediate scrutiny, leaving open ample alternative channels of communication.

The case is Desrosiers v. Governor, No. SJC-12983 (Mass. Dec. 10, 2020).  Justice Elspeth B. Cypher authored the opinion for a unanimous Court.

Opioids, coronavirus add up to dangerous interaction

pxfuel.com

Purdue Pharma will plead guilty to criminal charges in the marketing of OxyContin, the Justice Department (DOJ) announced yesterday.  Meanwhile, addiction and coronavirus are dangerously interrelated, Dr. Joseph Grillo warns.

DOJ settled with Purdue Pharma in civil and criminal investigations, and with Sackler family shareholders in civil investigation.  Purdue will admit that it conspired to defraud the United States by misleading and impeding enforcement by the Drug Enforcement Administration for almost 10 years.  Purdue also will admit to conspiring to violate the Federal Anti-Kickback Statute with inducements to doctors to prescribe opioids for almost eight years.  (Purdue Plea.)

On the civil side, Purdue will settle, without admission, allegations of false claims to federal healthcare programs, of improper inducements to prescribing doctors, and of improper contracts with fulfilling pharmacies.  The government will have an unsecured claim on $2.8bn in Purdue's bankruptcy.  (Purdue Settlement Agreement.)  Purdue shareholders in the Sackler family will pay $225m in settlement of allegations that they approved an intensified opioid marketing program.  (Sackler Settlement Agreement.)

The settlements do not resolve state claims.

Opioids have taken more than 450,000 American lives since 1999, The New York Times reported yesterday, citing CDC research.  COVID-19 deaths now exceed 220,000, according to the CDC.

In 2020, the coronavirus pandemic nudged the opioid epidemic out of the number one spot for enemy of public health.  But the two are hardly mutually exclusive.  Addiction, of all types, interacts with the threat of coronavirus in a mutually exacerbating feedback loop.  Joseph Grillo, M.D., J.D., and an alum of my torts class, raised a warning flag on his blog yesterday.

"Two great epidemics of our generation are intersecting in ways that are additively deadly, and which highlight the urgent ways we must respond to some of the underlying fault lines in our society that are worsening both crises," Dr. Grillo wrote.

Read more about substance use disorders (SUD) and coronavirus at A Pandemic Within a Pandemic, Joseph Grillo, M.D. Medical Legal Consulting, Oct. 21, 2020.

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

Prawns at a Marché Kermel in Dakar, Senegal, in February
(RJ Peltz-Steele CC BY-SA 4.0)

Attorney Kayla Venckauskas wrote an overview of conservationists' efforts to curb wildlife trade in wet markets since the emergence of coronavirus.

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

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

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

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

My new doorbell cam
spies a ne'er-do-well.

Quote of the Week:  "Murder hornets, but with the right lawyer, manslaughter bees. 🐝"  —attorney Jennifer T. Langley

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

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

Knock it off.  This is week 7.

What I’m Watching

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

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

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

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

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

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

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

What I’m Eating

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

What I’m Drinking

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

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

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

What I’m Doing to Stay Sane

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

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

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

Happy Mother's Day!

🌷🌷🌷🌷🌷🌷🌷

Photos and video, except in "What I'm Watching," RJ Peltz-Steele CC BY-SA 4.0

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Report from a Social Distance Week 5: A Birthday, a Flood, and a Fire

April snow (RJ Peltz-Steele CC BY-SA 4.0)

My plan-B return to Africa in June was just canceled.  I kind of expected that.  Here in New England, it remains unseasonably chilly, lows this week at the freezing point, and highs usually in the low 50sºF, 12ºC give or take, and a mean wind chill.  One morning even brought a light snow.  The long-range forecast shows no warming for the remainder of the month.  We’re getting deeply anxious for the transition to spring, even as the names of the days have become arbitrary.  At least in this week 5 of isolation, we had occasion to celebrate a calendared milestone, my wife’s birthday.

What I’m Celebrating…

It was a Quarantine Birthday!

For my wife, I made a birthday cake!: a classic pound cake with hazelnut buttercream frosting.  I won no points on aesthetics, but the sweet taste was spot on.  I also made our dinner of vegetable pasta with mozzarella garlic bread, heavy on the garlic.  We had my wife’s favorite wine, Gazela vinho verde (she’s a cheap date).  And from her Amazon WishList, she received some admittedly non-essential but long desired Yuxier BBQ gloves (Spider-Man-style, but not really, because a Chinese maker wouldn’t dare test trademark).  Our daughter sent our favorite flavored honeys from the Savannah Bee Company, and there were lots of lovely cards: thanks, family and friends.

What I’m Reading

The Atlantic (May 2020).  The latest issue of my favorite magazine, The Atlantic, hit my doorstep this week, and I’ve never been happier to see it.  This month has the usual plenty of enthralling content, from an assessment of the fractured right in American politics (Robert P. Saldin and Steven M. Telles), to a photo study of social distance (Amy Weiss-Meyer), to an exploration of the everlasting allure of Scooby Doo (Christopher Orr)—this year’s May movie Scoob! will skip theaters.  Most-interesting-item honors go to MacDowell Colony fellow Francesca Mari’s “The Shark and the Shrimpers” for breaking down the legal system’s obscene exploitation of the BP disaster with faked compensation claimants.  The conduct of key plaintiff’s lawyer Mikal Watts, acquitted, I found frighteningly reminiscent of Ecuador v. Chevron's fallen star, Steven Donziger.  According to Mari, Watts even commissioned a documentary about himself; cf. Donziger’s PR panache.  Somehow, despite the well reasoned fury of U.S. District Judge Lewis Kaplan, Donziger last week wrangled the validation of 30 Nobel laureates.  That’s more Bizarro than the “liberate” tweets.

🙏 Our ongoing Bible reading has proceeded from First to Second Kings, and we’ve begun a Sunday Zoom study of my favorite book, James.  If you feel in need, or wish to support others, in these strange times, you are welcome to visit our church’s new virtual prayer wall, as well as Sunday service at 0930 US EDT.

What I’m Listening To

Floodlines (2020).  This eight-part audio series by Vann R. Newkirk II represents a first foray into podcasting for The Atlantic.  It’s a fascinating deep dive into the Hurricane Katrina disaster, exploring all angles, especially race and socioeconomic implications.  Newkirk skillfully weaves a narrative that traces New Orleans history from its roots in slavery to its contemporary demography.  A lot of what’s here wasn’t new to me, because, for work, I’ve done a more-than-normal amount of reading about Katrina, and I'm personally familiar with NOLA.  (The audio pacing is slow, and you can nudge up the speed if you use an intermediary such as Google rather than streaming from the home page.)  There’s still plenty here, though, for anyone, and maybe a lot for some: Katrina was 15 years ago, so young adults might not even remember it.  For my part, I had never heard of the case of Ivor van Heerden, who lost his academic post at LSU Baton Rouge in suspicious subsequence to his criticism of the Army Corps levees.  That one nugget from Floodlines part 3 sent me down a depressing rabbit-hole-reading of van Heerden’s ultimately unsuccessful litigation.  Academics, even with tenure, almost always lose to judges’ sycophantic deference to university bureaucrats, while a 2011 AAUP report had no trouble seeing through LSU’s pretext.  FIRE wrote about the importance of the van Heerden case just this week.

What I’m Watching

Code 8 (2019).  Eh.  It killed a couple of hours.  Did you know that Stephen Amell (Arrow) and Robbie Amell (The Tomorrow People) are first cousins?

For All Mankind s1 (2019).  A pandemic gift on free Apple TV+, I’m loving this series.  It’s not what I expected, and I don’t want to give away too much.  The premise of the show is an alternate history in which the Soviets won the moon race; that much was in the trailers.  Unexpected was the clever imagining of an alternatively unfolding history of American civil rights as a consequence of that pivotal national shame.  The title of the show turns out to have much greater significance than a fleeting reference to the Lunar Plaque or an innocent homage to Neil Armstrong’s famed phrase.  Joel Kinnaman returns to earth from Altered Carbon s1 to deliver a credible old-school astronaut struggling to find his place in a changing NASA, while Sonya Walger, as America’s top female astronaut, shines among an extraordinary cast of leading women.

KN Aloysh (Apr. 19).  My friend Komlan Aloysh launched his YouTube channel of interviews with African changemakers by sitting down to Zoom with Rhode Island-residing, Liberian tech entrepreneur Jacob Roland, founder and CEO of West Africa-serving Pygmy Technologies.  Their wide-ranging conversation reached from the transnational tech sector to Liberian food and culture.  Roland well observed, in whatever area one might wish to create, the Liberian market is ripe and ready.  And he tipped viewers off to top unspoilt beaches in Liberia, though I suggest you get there before Chinese developers do.  The show made me conscious of how much I am missing West Africa just now.

What I’m Eating

Bluewater Bar + Grill. This week's self-sacrifice (sarcasm) to #Save­Our­Restaurants went to a local institution and its generous and hard-working staff.  Our bounty included R.I. calamari, battered cauliflower, chili broccoli, burgers and truffle fries, and the pièce de résistance, cinnamon beignets worthy of their Louisiana heritage.

Bread machine.  “While you're watching Ozark and baking bread ... ,” Trevor Noah began a bit this week.  He had my number.  Ozark s3 is on the to-do list, and already I had dragged the bread machine up from the basement.  My aim was to save from waste the remaining brine from a finished jar of pickles.  For reasons unknown, my pickle-juice bread didn’t rise properly.  I got over the initial disappointment.  Though it was dense and a touch chewy, my undersized loaf was delicious, and I ate it up in the course of the week.

What I’m Drinking

New Orleans Blend.  My wife doesn’t usually care for dark roasts, but even she fell for this offering from Community Coffee.  Its rich texture kicks off your day with a Bourbon Street party in your mouth.  Maybe that’s the cabin fever talking, but laissez le bon temps rouler.

Bombay Sapphire East.  This geo-themed gin in classic Bombay blue boasts of Thai lemongrass and Vietnamese peppercorns.  I’m not sure I could distinguish it from straight Sapphire in a taste test, but I’m willing to pay for a foreign feel while stuck in the States.

Veiner Nössliqueur von Pitz-Schweitzer.  A yummy sample of hazelnut liqueur I picked up in Luxembourg: I used it in the icing for the birthday cake.  And maybe I sampled some according to the one-for-the-cup-one-for-the-cook rule.  The drinking policy at my work-from-home-place is super chill.

What I’m Doing to Stay Sane

Burn this.  Our town has suspended yard-waste pickup, so I collected from the yard and burned in the fireplace the winter season’s accumulated kindling.  We had a nice, hot fire for the birthday celebration.  Though I always worry whether the trees outside are alarmed by the smell of smoke from their fallen limbs.

This is the matrix.  Ramadan Mubarak to our Muslim friends, and blessed weekend to all.

Photos in Celebrating, Eating, Drinking, and Staying Sane are mine, CC BY-SA 4.0.