Showing posts with label pandemic. Show all posts
Showing posts with label pandemic. Show all posts

Saturday, August 29, 2020

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

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

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

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

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

Saturday, May 9, 2020

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

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

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

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

Knock it off.  This is week 7.

What I’m Watching

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

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

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

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

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

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

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

What I’m Eating

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

What I’m Drinking

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

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

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

What I’m Doing to Stay Sane

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

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

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

Happy Mother's Day!


🌷🌷🌷🌷🌷🌷🌷

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

Friday, May 8, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 24, 2020

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.

Tuesday, April 21, 2020

Amid pandemic, ballot access restrictions yield to right to run for office, state supreme court rules

Because of the coronavirus pandemic, political candidates will have to produce only half the usual number of voter signatures to see their names on the state primary ballot, the Massachusetts Supreme Judicial Court ruled Friday.  One justice in concurrence chastised the Massachusetts government for dropping the ball in technology to respond to the crisis.

Massachusetts primary ballots in 2016 (GPA Photo Archive CC BY-SA 2.0)
A primary election in the United States occurs at the state level before the nationwide Election Day in early November.  Voters in a primary election choose which candidates from each party will qualify for the final ballot on Election Day.  The Commonwealth of Massachusetts held its primary election for the U.S. Presidency on March 3; the primary election for state candidates to state and federal offices is set for September 1.  Candidates will vie for a U.S. Senate seat, nine U.S. House seats, 40 state senate seats, and 160 state house seats.  Some states with earlier scheduled elections postponed their primaries.  For example, Rhode Island postponed its same-day presidential and state primary election from April 28 to June 2.  The later timetable in Massachusetts leaves no room for postponement if officials are to prepare ballots timely for Election Day.

Declared on March 10, a state of emergency arose in Massachusetts at a crucial time for political candidates to collect signatures to qualify for ballots in the state primary election.  Party candidates were expected to submit signatures to state officials by April 28, for state offices, and by May 5, for federal offices.  The requisite number of signatures ranges from 150, for a state house seat, to 10,000, for a U.S. Senate seat.  Procured signatures in Massachusetts must be “wet,” that is, given live, in ink; there is not yet a legal process to collect, nor a technical capacity to certify, electronic signatures.

Customers line up at social distance to enter my local grocery store.
Photo in Barrington, R.I., Apr. 5, 2020, by RJ Peltz-Steele CC BY-SA 4.0.
Naturally the coronavirus lockdown has complicated the collection of wet signatures.  Candidates and their supporters ordinarily canvass voters door to door and at places where people congregate, such as shopping malls.  Social distancing restrictions came into effect just after the halfway point in the time window for collecting signatures.  Candidates sought relief from the executive and legislative branches of Massachusetts government.  Executive election officials said they were powerless to change statutory deadlines, and bills to relax signature requirements stalled in the legislature.  I note, it’s hardly in the interest of incumbents and their well-oiled politicking machines to facilitate the raising up of rivals.

Written or not, the right to seek representative office must be, to some degree, a civil, or human, right in a democracy.  In Massachusetts, the right is written.  Article 9 of the Massachusetts Declaration of Rights states, “All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.”

Article 9 of the 1780 Massachusetts Constitution
(Massachusetts Historical Society Collection)
The provision dates, unaltered, to the original 1780 Massachusetts Constitution (Papers of John Adams, vol. 8) and gave candidates now seeking access to the Massachusetts primary a plain hook to plead for judicial intervention.  On April 8, three representative plaintiffs, including two Democrats and one Republican, two seeking federal office and one seeking state office, filed an emergency petition for declaratory relief.

The Massachusetts Supreme Judicial Court has long recognized that the state constitutional right to run for office may confer judicial protection against overreaching legislative or executive restrictions on access to the ballot.  The provision was used to support women’s suffrage in 1922, if only after the 19th Amendment (1920).  The Court rejected a ballot access challenge to statute by Libertarian candidates in 2012; however, in dictum the Court reiterated its competence to adjudicate an article 9 claim and even cited article 9 in tandem with the inherent judicial power, as articulated in the landmark same-sex marriage decision in 2003, to extend Massachusetts civil rights beyond the scope of the U.S. Constitution.  Notwithstanding the power of judicial review, the Court’s experience in examining ballot access law under article 9 has before now resulted entirely in the approval of “reasonable” or “legitimate” qualifications for office.

Structurally, the Massachusetts Constitution, like the U.S. Constitution, disfavors judicial intervention in the electoral process.  “As a general matter, the principle of separation of powers … prevents the ‘judiciary [from] substituting its notions of correct policy for that of a popularly elected Legislature,’” the Court wrote in the instant case, quoting precedent.  The plaintiffs’ challenge here called for “policy judgments that, in ordinary times would be best left to the Legislature.”

"Signing a Petition" by Elizabeth Jenkins CC BY-NC-SA 2.0
Yet, the Court wrote, “[n]o fair-minded person can dispute that the fundamental right to run for elective office has been unconstitutionally burdened or interfered with by the need to obtain the required ‘wet’ signatures in the midst of this pandemic.”  Had the legislature passed a law similarly burdening ballot access in the absence of the pandemic, the Court reasoned, surely it would be ripe for judicial review under article 9.  Thus, “where fundamental constitutional rights are violated, and where the Legislature fails to remedy the constitutional deficiencies after having had the opportunity to do so, and where an aggrieved litigant files suit seeking remedial relief for the constitutional violation, the judiciary must provide such a remedy.”

The Court struggled with the appropriate level of judicial scrutiny, an issue that similarly has confounded the U.S. Supreme Court in its case law over free speech and campaign finance regulation.  U.S. constitutional law tends to approach civil rights problems from a formalist framework of tiered judicial scrutiny, its intensity ranging from zero, or minimal “rational basis” analysis, to presumptive unconstitutionality and stringent “strict scrutiny.”  This framework at first glance contrasts with the much more flexible European approach that functionalizes construction of “necessary in a democratic society,” though critics fairly allege that the U.S. Supreme Court’s tiered scrutiny has flexed functionally in application.

"Magnifying Glass" by Tall Chris CC BY 2.0
Like the U.S. Supreme Court, the Massachusetts Supreme Judicial Court has employed the language of both strict scrutiny and rational, or “legitimate” basis, in article 9 jurisprudence.  The Court explained: “When we evaluate the constitutionality of a restriction on access to the ballot, we apply a ‘sliding scale approach, … through which [we] weigh the character and magnitude of the burden the State’s rule imposes on the plaintiffs’ rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.’”  In other words, the degree of scrutiny is elevated as a function of the degree of burden.  Critics such as me contend that setting the appropriate degree of scrutiny only after purporting to observe the degree of burden invites the tail to wag the dog.  But that’s not important just now.  The Court found the burden here to be high enough, whatever language might be used to describe it, to demand strict scrutiny.

Though signature requirements might be modest and legitimate burdens on ballot access in the best of times, the Court opined that the signature requirements are excessively burdensome amid the present pandemic.  To reach that conclusion, the Court equated evolving social context with emergency electoral context:
[A]s we have recognized, statutory requirements that were once considered constitutionally permissible may later be found to interfere significantly with a fundamental right as societal conditions and technology change [indirectly citing the aforementioned same-sex marriage case]…. And similarly, statutory requirements that in ordinary times impose only modest burdens on prospective candidates for public office may significantly interfere with the fundamental right to run for political office in a time of pandemic.
Observers may opine whether, or when, that equation holds.  Though maybe not surprising when articulated by a progressive state court, the declaration simultaneously authorizes judicial aggrandizement in the expansion of human rights relative to time and in the constriction of human rights relative to exigency.  Potential implications abound, for example, in reconciling personal privacy with free speech, or climate change mitigation with free markets. For present purposes, the Court concluded that the signature requirements as applied could not withstand strict scrutiny.

By the time it reached remedy, the Court had painted itself into a corner.  The existing signature regime could not stand, yet the executive and the legislature refuse to solve the problem.  Plaintiffs invited the Court to simply void the signature requirement on this go-around.  But the state cried caution, fairly fearing that throwing open the doors of ballot access would result in incomprehensible ballot chaos for voters.  I would be inclined to find the state’s position paternalistic, but I remember hanging chads.

By Maklay62 at Pixabay
Admittedly loath to parse numbers, the Court invoked a Solomonic solution.  Observing that the emergency arose at about the halfway point of signature collection, the Court cut signature requirements by 50%.  The state had suggested that the requirement be cut only for offices requiring 1,000 or more signatures, presumably because of the chaos-will-reign concern, not the incumbency-will-be-threatened concern.  The bills stalled in the legislature would have taken that approach, too, reducing signatures from whatever number over 1,000 by half or two-thirds.  But the Court found itself without a sufficient basis to adopt the 1,000-signature cut-off, so applied the 50% rule across the board.

The Court issued two further declarations of equitable relief.  It extended the deadlines for candidates to submit signatures for state certification from April 28 to May 5, for state offices, and from May 5 to June 2, for federal offices, taking into account the pleadings of the state as to the minimal time needed to prepare ballots.  Second, the Court ordered state election officials to find a way to accept and certify electronic rather than wet signatures.  These additional measures the Court calculated in recognition of the difficulty, but not impossibility, of continuing to collect voter signatures during the lockdown.

Justice Kafker (Mass.gov)
Only one judge wrote a separate opinion.  In concurrence, Associate Justice Scott L. Kafker chastised the state for falling behind the curve in electoral technology:
In this “high tech” era, and in the midst of a global pandemic that severely restricts close personal contact, the failure to be able to solve manageable technological problems on the eve of an election is confounding and distressing. At a time when we need to be fundamentally rethinking what must be done in person and what can instead be done electronically, our electoral process seems dangerously unequipped to adapt to a new paradigm.
Justice Kafker pointed with approval to the electronic voter registration system adopted in Arizona.  The Court opinion in a footnote had pointed to Arizona similarly, as well as to technological adaptations in electoral process in New Jersey and Florida in response to the pandemic.

Justice Kafker concluded:
I feel compelled to emphasize that those responsible for our election process must have the necessary tools to quickly adapt to the current pandemic and the future crises to follow. Absent such technological adaptability, our elections will be imperiled and our election laws may themselves have to be rewritten in the midst of a crisis, as was done here. That is an invitation to conflict and confusion that must be avoided.
Voters line up in Boxborough, Mass., in the 2016 primary.
To read between those lines an entreaty to the legislature for funding would not, I think, be too speculative.  Lawyers and judges especially are aware of how badly Massachusetts has lagged behind other states in digitizing legal practice and public access to court records.

It would not be a stretch moreover to suppose that Justice Kafker was especially pained to meddle with the specific numeric qualifications for ballot access.  He was appointed to the Supreme Judicial Court in 2017 by Governor Charlie Baker, a Republican.  In the course of his career, Justice Kafker served as deputy legal counsel to Governor Bill Weld.  A past Libertarian candidate for Vice President and outsider Republican candidate for President, Weld was challenging President Donald Trump for the 2020 Republican nomination until Weld suspended his campaign on March 18. Republicans identify with formalism in constitutional interpretation, and Libertarians identify with judicial restraint in rule making, if also, practically, with relaxation of ballot access restrictions.

At the same time, Justice Kafker’s conclusion might readily be understood to voice widespread American anxiety over electoral integrity in general, especially in the crosscurrents of equivocal Washington reaction to Russian tampering.

The case is Goldstein v. Secretary of the Commonwealth, No. SJC-12931 (Mass. Apr. 17, 2020).  Chief Justice Ralph D. Gants authored the unanimous opinion.

Friday, April 17, 2020

Report from a Social Distance: Week 4

Dispatch from a scapegrace stuck in a rabbit warren

"Black Rabbit of Inlé" by Ken Whytock CC BY-NC 2.0
Isolation is now a way of life, and the days are dissolving, each into the next.  There's a plateau in new infections in U.S. hot spot New York, but it sits at a high level of daily mortality.  Testing in the United States remains limited to detecting active infection in the symptomatic, if that, though antibody detection is being deployed experimentally.  Like in other states, Rhode Island Governor Gina Raimondo has ordered that face coverings be worn in shops and workplaces to slow down contagion.  (Another executive order refined the suspension of public meetings and records laws to balance access and lockdown.)  In times like these, as Chicago Mayor Lori Lightfoot said to Trevor Noah, "Humor is kind of the unifying thing."  In that Light(foot)hearted vein, this is what I'm up to.

TV Quote of the Week: “I didn’t believe I’d ever see my racist Aunt Ida licking up gasoline at the Arco station on Saticoy with her Filipino nurse from the Jewish Home for the aging, but it happened.  Anything is possible now.”  —Principal Burr in Daybreak s1e06

What I’m Reading

Scott Johnston, Campusland (2019) (Amazon).  Kirkus Reviews called this self-described “satire” of university life, “richly imagined.”  Well, no disrespect to Scott Johnston’s very enjoyable writing, but if I have a criticism here, it’s that what passes for parody is often less absurd than the reality.  Johnston, a New York Yalie with an eclectic background, spins a tale of PCism run amuck at a fictional elite northeastern private university from varied student, faculty, and admin perspectives.  It’s funny when Johnston depicts a “bias response” star chamber investigating a professor on contrived charges of racism, but the casual reader might not realize how on point the narrative is.  It’s equally absurd yet true when Johnston writes about a weaponized “title IX” being wielded as a verb.[*]
King Solomon
by Kristian Zahrtmann
Our church Bible reading continues in week 14 with 2 Samuel and 1 Kings.  As usual, the BibleProject has an excellent video overview of the books of Kings.  The books begin with the reign of Solomon, who, anointed as king, pleaded with God: "But I am only a little child and do not know how to carry out my duties. Your servant is here among the people you have chosen, a great people, too numerous to count or number. So give your servant a discerning heart to govern your people and to distinguish between right and wrong. For who is able to govern this great people of yours?"  1 Kings 3:7-9.  Remember when humility in leadership was a thing?

What I’m Watching

Onward (2020) (trailer).  This beautiful new story from Disney Pixar more or less skipped theaters because of the pandemic lockdown.  It’s now included on Disney+ and available to rent on other platforms.  Be prepared to reallocate some of your precious tissues to mop up tears of joy.  As usual for Disney features, the voice cast is top shelf.  Lead female roles bring together comedy legend Julia Louis-Dreyfus and Oscar winner Octavia Spencer.  Lead male voices are two Peters of Avengers fame, Quill (Star-Lord) and Parker (Spider-Man), that is, Chris Pratt and Tom Holland.

Motherless Brooklyn (2019) (trailer).  I thoroughly enjoyed this book by Jonathan Lethem (Amazon), and I'm a big fan of Ed Norton, who was born in Boston and grew up in Maryland, so I eagerly awaited this theatrical release—though not as earnestly as Ed Norton awaited it, the film adaptation being his 20-year passion project.  It did not disappoint.  Norton himself played the protagonist with a performance reminiscent of his genius alongside Brando and De Niro in The ScoreMichael Kenneth Williams, The Wire’s Omar, gets to be a mostly good guy for a change, the enigmatic “trumpet man.”  There are small but significant roles, too, for Robert Wisdom, another Wire alum (“Bunny”), and Fisher Stevens, who seems to be in everything, but whom I’ll always identify favorably with Early Edition.

Star Wars: The Clone Wars (2008) (trailer).  What do you really know about Anakin Skywalker and Obi-Wan Kenobi?  The Star Wars movies show us only dramatic highlights of their lives.  At some point, Skywalker and Kenobi, together with Master Yoda, waged war, and their bond was forged in that fire.  Such is the story of The Clone Wars, set between live-action episodes II (Attack of the Clones (2002)) and III (Revenge of the Sith (2005)).  Friends have told me for years to embrace this animated saga, and now I’m sucked in.  Best part?  Seven seasons of televised series (2008-14, 2020) followed this 2008 film, Disney+ having revived the show for a finale season this year.  So I’m going to need a clone to watch all of that.  I’m giving a miss to the earlier three-season animation (no “The” in the subtitle) that ran from 2003 to 2005; it was pre-CGI.

Watership Down (2018) (BBC trailer).  The animation is superb in this BBC-Netflix co-production.  With James McAvoy as Hazel, this four-installment adaptation is not the first to adapt to screen the Richard Adams’s 1972 classic (N.Y. Times Mag.).  A 1978 British animated film won a Saturn Award; Art Garfunkel sang “Bright Eyes” for it.  A British-Canadian animated series ran for three seasons, from 1999 to 2001, but never aired in the United States.  Two years ago, we postponed watching this Netflix incarnation because, for an animation about bunnies, it’s heavy emotional lifting.  As James Parker wrote of the novel for The Atlantic, “An unprecedented mash-up of eco-anxiety, homely bottom-of-the-garden anthropomorphism, real violence, and febrile mythmaking, Watership Down struck a nerve.”  That’s only more true of this miniseries in our present era of climate change, pandemic, and xenophobia.

The Night Of (2016) (HBO).  I’m not usually one for what is essentially a criminal procedural, even if well crafted.  But this 2016 production came recommended by a reliable source, and I couldn't resist John Turturro as a scruffy, docks-trolling criminal defense lawyer who’s smarter than anyone gives him credit for.  The show is one part Oz and one part The Practice, spiced with a pinch of The Verdict.  Michael Kenneth Williams is in this one, too, as a scary prison gang leader, and so is Fisher Stevens, who has some darkly funny scenes as pharmacist to Turturro’s eczema-afflicted attorney.

Tales from the Loop (2020) (Amazon).  We’ve just started this new release from Amazon Prime, and I’m all in.  I do not fully understand how a crowd-funded book of surreal science-fiction art by Swedish artist Simon Stålenhag in 2015 got turned into first a role-playing game (2017) and then this TV show.  I think it best not to ask too many questions.  Critics have knocked the show for being slow, and ordinarily, slow plays poorly with me.  But Legion alum Nathaniel Halpern wrote these odd and beautiful stories, and, at just e03 of 8, I’m spellbound with anticipation of more.  Halpern mixes the classical wonder of Amazing Stories Magazine with the playful ingenuity of Stranger Things to serve up a premise irresistible to those of us reared on dandelion wine.

Give it a miss:  I’ve liked Ed Helms since he worked for Jon Stewart, but, save a line here and there, Netflix's Coffee & Kareem (2020) was unwatchably unfunny.

Also out now:  We just discovered that Apple TV+ has made some of its top original content free during lockdown, so check it out.

What I’m Eating

Our Easter feast was simple but delicious: ham, potatoes, peas, and homemade bread.  My wife made my late aunt’s annual springtime-classic peach pie for dessert: brilliant, even though we could find only canned peaches.

My gifted wife also this week made chicken garam masala on basmati rice, a favorite in our house.  In the past, she has made the garam masala herself, from its component spices, but products such as McCormick’s, used here, are a satisfying convenience.

Image by BlackRiv from Pixabay
Fortunately, some Cara Cara oranges made it from tree to home: thanks to my mom and stepdad for a fortifying Easter gift.

I picked up cactus-fruit jelly in North Africa, and it’s been chilling in the fridge.  Faced with an abundance of fresh bread this week, we cracked it open.  Not bad.  Tastes like … I don’t know, cactus fruit.

What I’m Drinking

Alto Grande“The coffee of Popes and Kings,” this premium bean, grown in “ideal soil and climate conditions” in Puerto Rico’s mountainous interior, makes a brew too bold for the coffee novice.  We’re indebted to a family friend (Twitter) for our supply line.

Rhody Coyote Hard Apple Cider.  Celebrating Easter, we opened this harvest holdover from nearby Newport Vineyards. When things get back to normal, there's a tasting room.

Chicory Root VodkaThe flavored liquors of Philadelphia’s Art in the Age distillery never disappoint. The New Hampshire-drawn maple syrup eclipses the chicory in this vodka, but the balance is delectably sippable.  Also a tasting room in better times.

Scapegrace GinHow often does a gin teach you a new word?  “Scapegrace” originated in the 18th century to mean a rogue or rascal: one who escapes God’s grace.  Unironically, the name attached to this gin when New Zealand maker Rogue Society Distilling went international and confronted Oregon-based Rogue Ales in a European trademark tangle.  Thus this small-batch brand means to make its mark with a rough-and-tumble reputation in a dark bottle that pays homage to gin’s progenitor genever.  A suite of botanicals is led by juniper.  Different accounts locate distillation in Auckland or Christchurch; either way, Scapegrace boasts water from New Zealand’s Southern Alps.  But be warned: the gold variety, which we have, packs a navy-strength punch: at 57% ABV, it’ll make you forget all the new words you just learned.  The classic silver weighs in at 42.2% ABV.  I am keen to get my paws on some of “the world’s first naturally black gin,” Scapegrace Black, 41.6% ABV.

Whom I’m Wearing

Chartwell Wealth ManagementContact my friend Dan Harrington (LinkedIn) for financial advice in Rhode Island/South Coast.  Dan wrote the ProJo op-ed on quarantine that I cited here on the blog a couple of weeks ago, with art by Dan’s talented daughter, Grace.  This fashion choice puts me in good company: Dan’s and my friend Komlan N. Aloysh sported a Chartwell T to launch his new YouTube channel, on which he interviews “African changemakers both on the continent and in the diaspora.”


Happy birthday to my dear wife, and happy Earth Day!

Eating, Drinking, and Wearing images except oranges are mine, CC BY-NC-SA 4.0.

[*UPDATE, April 19: To give credit to the author where due: I've since finished the book, and, in an afterword, Johnston wrote that "while Campusland is written as satire, it doesn't stretch the truth by much, and sometimes not at all.  Title IX, as depicted, is true to life.  If you want some good nonfiction on the subject, I suggest Laura Kipnis's excellent (and horrifying) book Unwanted Advances [(2017) (Amazon)]."]