BU journal features Enríquez book on genome editing

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

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

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

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

Justices test Harvard property claims, as civil rights attorney pleads passionately for return of slave images

Lanier's story in a 2020 short by Connecticut Public

This morning the Massachusetts Supreme Judicial Court heard oral arguments in the case of Lanier v. Harvard, in which Tamara Lanier seeks to recover daguerreotypes of her enslaved ancestors, father and daughter Renty and Delia Taylor, taken on a South Carolina plantation in 1850.

The case is mostly about property and procedural law, namely, replevin and laches, though counsel for Lanier described the initial possession of the images as tortious conversion.  The images were taken and "used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism," the Center for Art Law explained. "Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation."

Harvard's position depends on a narrow view of the case as a simple question of property ownership.  As the saying goes, "possession is nine tenths of the law."  Harvard bolsters its position with the argument that has become familiar from museums in our age in which returning artifacts to the once colonized, developing world is increasingly common, that the public will benefit from, and the horrors of slavery will be exposed by, public presentation of the daguerreotypes in a scholarly context.

The Lanier family articulates a broader theory of the case.  Civil rights attorney Ben Crump compared the sought-after return of the daguerreotypes to return of the possessions of Japanese families after World War II internment and Jewish families after the Holocaust, the latter including The Woman in Gold. 

The Lanier side divided its argument between two attorneys.  Crump opened the second half with a powerful statement of what he described as "three historical references" to frame the case from the Lanier perspective.  First, he said:

The fact that I stand before you as a free man and not a slave is a testament to someone's decision to change the course of human history.  It is a testament to our legal system, a testament that was led by the courts here in Massachusetts when Chief Justice William Cushing in 1783 judicially abolished slavery in the Quock Walker case.  And it is the reason why he is so often quoted even 250 years later with ... the idea of slavery as inconsistent with our conduct and our Constitution.

Second, Crump paraphrased Frederick Douglass, that

the genealogical trees of black people do not flourish as a result of slavery.  In essence what he was saying is that what slavery did was destroy the African-American family connection to its ancestral lineage.  But this historical case has the ability not only to recognize such lineage but [to recognize such lineage in] Ms. Linear and her family.

Third, Crump said:

This case presents a case study of Massachusetts's complicated history with slavery.  On one hand it has profited mightily from the cotton trade.  Its most powerful institution, Harvard University, has ties with slavery that date back centuries.  In fact the textile factories that were the largest donors of the university helped to build capitalistic empires on the backs of slave empires.  In fact the institution of Harvard and the institution of slavery were born in this country a mere 17 years apart.  On the other hand, Massachusetts is also the home of John Adams, and it is not lost on me or Ms. Lanier that we are in the John Adams Courthouse.  John Adams said slavery is the great and foul stain upon the North American Union.

Justices Kafker, Wendlandt, and Cypher actively and almost exclusively interrogated the advocates.  Based on the colloquy, the smart money in the case is on Lanier.  Kafker and Wendlandt tied up Harvard advocate Anton Metlitsky mostly in civil procedure.  The justices seemed to be testing out how they might navigate procedural challenges to reach a ruling in Lanier's favor.

The justices did challenge Crump and co-counsel Joshua Koskoff on First Amendment issues.  In an amicus brief in the case, the Massachusetts Newspaper Publishers Association warned against a ruling that would give the subjects of photos an ownership interest in the images, for fear that First Amendment-protected news coverage would be jeopardized.  It's interesting to see that concern raised in this context, because the point also marks division between the United States and Europe over data privacy rights in photographs of persons in public places.

The probing revealed that counsel for Lanier would render the case large or small, depending on their needs.  Taming the case back to mere property dispute, Koskoff called "First Amendment implications" in the case "a strawman."  The First Amendment is not implicated in a case of conversion, he argued, any more than the Second Amendment is implicated when someone is shot and killed.

Justice Kafker challenged Koskoff on whether return of the pictures would make them inaccessible to scholars and, as Harvard contends, thus unable to educate the public in the way that Holocaust images have.  Koskoff stuck to his guns, responding that it was up to Renty and Delia, and thus up to the Lanier family, whether the images would be used for public education.  The ends don't justify the means, he said.

In a related vein, Justice Wendlandt questioned Crump whether the outcome would be the same if the images had been discovered "in a drawer of the Boston Globe."  Crump ducked the question.  "This was a scientific experiment with black people being used as lab rats," he responded potently but inappositely, a "crime against humanity" and a crime under Massachusetts law.

Wendlandt reiterated her question, and still Crump ducked it, arguing that the hypothetical was not the facts of the case.  Wendlandt then restated Crump's response back to him as a "yes," that it makes no difference who claims ownership of the daguerreotypes today.  Crump picked up the thread, arguing analogy to the removal of The Woman in Gold from public display in Austria.

"This court has the ability to finally free Renty and Delia from bondage," Crump concluded.  "We are beseeching this court not to condemn them in death to the property of Harvard for all eternity."

The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (argued Nov. 1, 2021).  Briefs are posted on the docket.  The oral argument will be posted at the Suffolk Law archive.  The Harvard Crimson published a thorough piece on the case in March.  A retired probation officer in Connecticut, Tamara Lanier tells her story at the website of the "Harvard Coalition to Free Renty"; there also is a documentary film by David Grubin.

[UPDATE, Nov. 3:] 

The oral argument is now posted in the Suffolk archive.  Also, Tamara Lanier posted a 15-minute clip of Crump's argument on her YouTube page today (below).

I add that Crump's argument, while quotable, was not as substantively important as Koskoff's.  I rewatched the oral argument today.  It remains clear to me that the justices, at least those who participated in the colloquy, are searching for a way to have Lanier win, but are struggling to find a legal rationale that matches the policy rationale.

In a telling exchange out of the gate, the justices pressed Koskoff for a rationale to convert his theory of tortious conversion in 1850, a premise the justices seemed willing to accept, into a property right in 2021.  Koskoff responded by describing tort law as an umbrella and property law within it, reasoning that a tortfeasor is not allowed to keep the proceeds of a tort.

I find the reasoning sound, notwithstanding the doctrine of laches, but I'm not sure the semantics and metaphor were quite right.  I have never understood tort law to dictate the outcome Koskoff describes; rather, I regard the proceeds of a tort as forfeit in equity.  Well recognizing how easy it is to Monday morning quarterback, I wonder that Koskoff might have prepared a better argument grounded in equity rather than tort law.

Anyway, it will take some legal gymnastics for the court to reach the result that at least three justices seemed to desire.

In parting meditation on pub gossip, Czech judge peels onion on privacy limits, judicial transparency

Does GDPR pertain to pub buzz?, AG Bobek asks.

(Skeptics in the Pub Oslo (2015) by Dizzi90 CC BY-SA 4.0)

Earlier this month, Czech judge and legal scholar Michal Bobek rounded out a six-year term as an Advocate General (AG) of the European Court of Justice with a mind-bending meditation on the ultimate futility of enforcing data protection law as written and a confirmation of the essentiality of transparency in the courts.

The case on which Bobek opined hardly required a deep dive.  He said so: "This case is like an onion," he wrote.  "I believe that it would be possible, and in the context of the present case entirely justified, to remain at that outer layer.   No peeling of onions unless expressly asked for."

But the case provided Bobek an optimal diving board, and, on the penultimate day of his term as AG, he plunged and peeled.

Complainants in the case were litigants before the Dutch Council of State (Raad van State).  They asserted that disclosure to a journalist of summary case information, from which they could be identified and details of their personal lives worked out, violated their right of privacy under the General Data Protection Regulation (GDPR) of the European Union, as transposed into Dutch law.

The disclosures are permissible under a GDPR exemption for judicial activities, Bobek concluded.  But en route to that conclusion, he further opined that the potentially unbridled scope of the GDPR must be tamed to accord with social norms and democratic imperatives.

With remarkably plain reasoning, he framed the problem in a comfortable venue:

If I go to a pub one evening, and I share with four of my friends around the table in a public place (thus unlikely to satisfy the private or household activity exception of ... the GDPR) a rather unflattering remark about my neighbour that contains his personal data, which I just received by email (thus by automated means and/or is part of my filing system), do I become the controller of those data, and do all the (rather heavy) obligations of the GDPR suddenly become applicable to me? Since my neighbour never provided consent to that processing (disclosure by transmission), and since gossip is unlikely ever to feature amongst the legitimate grounds listed in ... the GDPR, I am bound to breach a number of provisions of the GDPR by that disclosure, including most rights of the data subject contained in Chapter III.

The pub might not be the only place where the GDPR runs up against a rule of reason.  Consider the more nuanced problem of footballers considering a challenge against the processing of their performance stats.  Goodness; the pub convo will turn inevitably to football.

Let's step back for a second and take stock of the GDPR from the perspective of the American street.

Americans don't get many wins anymore.  We just retreated from a chaotic Afghanistan, despite our fabulously expensive military.  We resist socialized healthcare, but we make cancer patients finance their treatments on Go Fund Me.  We force families into lifelong debt to pay for education, undermining the social mobility it's supposed to provide.  We afford workers zero vacation days and look the other way from the exploitation of gig labor.  Our men's soccer team failed to qualify for the last World Cup and Olympics, while we're not sure why our women are rock stars; it can't be because we pay them fairly.  When it comes to personal privacy, we tend to want it, but our elected representatives seem eager to cede it to our corporate overlords.

Truth be confessed, then, Americans are willing to engage in a smidge of schadenfreude when Europeans—with their peace, their healthcare, their cheap college, their Ryanair Mediterranean vacations, their world-class football, and their g—d— G—D—P—R—get themselves tied up in regulatory knots over something like the sufficient size of a banana.  Ha.  Ha.

Therein lies the appeal, to me, of Judge Bobek's train of thought.  He finds inevitable the conclusion that posting case information is data processing within the purview of the GDPR.  The parties did not even dispute that.  For today, Bobek found an out through the GDPR exemption for the business of the courts in their "judicial capacity."

The out required a stretch to accommodate posting information for journalists, which is not, most strictly speaking, a judicial capacity.  Bobek reasoned by syllogism:  For the courts to do what they do, to act in the judicial capacity, they require judicial independence.  Judicial independence is maintained by ensuring public confidence in the judiciary.  Public confidence in the judiciary is bolstered by transparency in the courts.  Transparency in the courts is facilitated by the provision of case information to journalists.  Therefore, the judicial capacity requires publication of case information to journalists.

The problem, tomorrow, is that there is no answer in the case of pub gossip.  Bobek meditated on the human condition: "Humans are social creatures.  Most of our interactions involve the sharing of some sort of information, often at times with other humans. Should any and virtually every exchange of such information be subject to the GDPR?"

Bobek

Can't be, he concluded.

[I]n my view, I suspect that either the Court, or for that matter the EU legislature, might be obliged to revisit the scope of the GDPR one day. The current approach is gradually transforming the GDPR into one of the most de facto disregarded legislative frameworks under EU law. That state of affairs is not necessarily intentional. It is rather the natural by-product of the GDPR's application overreach, which in turn leads to a number of individuals being simply in blissful ignorance of the fact that their activities are also subject to the GDPR. While it might certainly be possible that such protection of personal data is still able to "serve mankind," I am quite confident that being ignored as a result of being unreasonable does not in fact serve well or even contribute to the authority or legitimacy of any law, including the GDPR.

While we await reassessment of the bounds of data privacy law in modern society, Bobek opined more and mightily on the importance of judicial transparency as a countervailing norm.  He opened the opinion with philosopher-jurist Jeremy Bentham:

"Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against impropriety.… It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order, where the most important branches of morality are enforced...."

Bobek later picked up the theme:

Judging means individualised detail brought to the public forum....

On the one hand, the basis for judicial legitimacy in an individual case are its facts and details. The judge settles an individual case. His or her job is not to draft abstract, general, and anonymous rules detached from individual facts and situations. That is the job of a legislature. The more a judicial decision departs from or hides the factual background to a public court case, or if it is later reported with significant limitations, the more often it becomes incomprehensible, and the less legitimate it becomes as a judicial decision.

On the other hand, ever since the Roman age, but presumably already earlier, if a claimant asked for the help of the community or later the State to have his claim upheld and enforced by the State, he was obliged to step into the public forum and let his case be heard there. In classical Roman times, the applicant was even entitled to use violence against the respondent who refused to appear in the public (the North Eastern part of the Roman Forum called comitium), before the magistrate (seated on a rolling chair on a tribune higher than the general public—hence indeed tribunal), when called before a court (in ius vocatione).

It is true that, later on, there were other visions of the proper administration of justice and its publicity. They are perhaps best captured by a quote from a judge in the Parlement de Paris writing in 1336 instructions to his junior colleagues, and explaining why they should never disclose either the facts found or the grounds for their decision: "For it is not good that anyone be able to judge concerning the contents of a decree or say 'it is similar or not'; but garrulous strangers should be left in the dark and their mouths closed, so that prejudice should not be caused to others.... For no one should know the secrets of the highest court, which has no superior except God...."

In the modern age, returning to the opening quote of Jeremy Bentham, it is again believed that even garrulous strangers should be allowed to see and understand justice. Certainly, with the arrival of modern technologies, a number of issues must continuously be re-evaluated so that garrulous strangers cannot cause prejudice to others....

Naturally, the publicity of justice is not absolute. There are well-grounded and necessary exceptions. The simple point to keep in mind here is: what is the rule and what is the exception. Publicity and openness must remain the rule, to which naturally exceptions are possible and sometimes necessary. However, unless the GDPR were to be understood as imposing a revival of the best practices of the Parlement de Paris of the 14th century, or other elements of the Ancien Régime or the Star Chamber(s) for that matter, it is rather difficult to explain why, in the name of the protection of personal data, that relationship must now be reversed: secrecy and anonymity were to become the rule, to which openness could perhaps occasionally become the welcome exception.

Bobek seems content with judicial exceptionalism in the GDPR framework.  I'm not so sure.  I rather think the problem of the courts points to the broader problem of GDPR scope.  Will there ultimately be a pub exception, too?  Stubborn American insistence on framing data protection as business regulation, as in California data protection law, suddenly exhibits some appeal.

The case is X v. Autoriteit Persoonsgegevens, No. C-245/20, Opinion of Advocate General Bobek (Oct. 6, 2021).  HT @ Edward Machin, writing in London for Ropes & Gray.

This is not Bobek's first high-profile opinion on the GDPR—even this year.  Read in Fortune about his January opinion in a Facebook case.

State constitutional law offers untapped potential to bolster advocacy in freedom of information

The Vermont Supreme Court relied on the 1777 Vermont
Constitution, as amended in 1786, to support access to
information under the public records act (PRA, or FOIA)
in 2021.

In the summer, two third-year law students published in the Journal of Civic Information a superb investigation highlighting the untapped potential of state constitutional law as a tool in access advocacy in the United States.

Among the many ways in which the U.S. Constitution shows its age is its lack of a right of access to information (ATI). ATI has become a recognized human rights norm in modern constitutions and regional instruments around the world, while the concept in U.S. federal law remains relegated to statute: the Freedom of Information Act (FOIA), which once was landmark yet today suffers from significant dysfunction. For my own part, I have examined the significance of  this divergence relative to the problem of privatization in the U.S. FOIA and the South African Promotion of Access to Public Information Act (PAIA).  I spoke last month to the U.S. FOIA Advisory Committee re same (HT).

The constitutional lag is not characteristic of all U.S. states.  By the count of University of Florida Levin College of Law students Jessica Terkovich and Aryeh Frank, ATI is recognized in the constitutions of seven states: California, Florida, Illinois, Louisiana, Montana, New Hampshire, and North Dakota.  In their article, Terkovich and Frank examined case law in these states to see how the constitutional provisions are implicated.

The researchers found that the constitutional provisions were not realizing outcomes in ATI litigation in these states all that different from outcomes that might be reached under the states' statutory expressions of ATI.  Rather than concluding that the constitutional provisions are inconsequential, however, Terkovich and Frank concluded from the evidence that constitutional ATI is under-used as a source of law to bolster access advocacy.

Their reasoning resonates with me.  When I was a newly hatched academic in the 1990s, I was enchanted by an examination copy of a casebook on state constitutional law.  (Lexis and West have current offerings.)  I was never able to swing the course offering, but the subject informed my teaching and research.  Accordingly, I've always encouraged students to consider state constitutional approaches to legal problems.

Often, state high courts recite by rote the default position that they interpret state constitutional rights as merely co-extensive with federal rights; the pairings are construed in pari materia.  The proposition that the free-press-and-speech provision of Article XVI of the Massachusetts Declaration of Rights is co-extensive with the First Amendment to the U.S. Constitution was reiterated recently in the scrap over a Boston flagpole now bound for the U.S. Supreme Court.

Courts might reflexively choose the easier path, shrugging off the burden of state constitutional interpretation.  But they can readily embrace state constitutionalism when it suits their needs.  The Supreme Court of Arkansas long construed the 1874 state constitutional guarantee against unreasonable search and seizure in pari materia with the federal Fourth Amendment.  Until they didn't.  When the U.S. Supreme Court bounced back a state high court disposition as erroneous under the Fourth Amendment, the nonetheless jurisprudentially conservative Arkansas court, in 2002, suddenly discovered distinct meaning in the state constitution to support its earlier conclusion in the defendant's favor.

That result could not have happened if criminal defense lawyer John Wesley Hall had not made the argument.  And that possibility, that the state constitution could mark the difference between liberty and imprisonment, was exactly why Hall included the Hail Mary claim despite longstanding precedent on the in pari materia approach, he once told me.

The potential for potency in a state constitutional claim is all the greater when the right at issue is expressed in the state constitution, but not in the federal Constitution, as is the case for ATI.  And the potential is not limited to the seven states that Terkovich and Frank analyzed.  Just in September, the Vermont Supreme Court extended its ATI law, the Public Records Act (PRA), to shine sunlight on the records of a private contractor responsible for healthcare in state prisons.

Vermont is not on Terkovich and Frank's list of seven.  Nevertheless, in Human Rights Defense Center v. Correct Care Solutions LLC, the Vermont Supreme Court relied on exhortative language—previously held unenforceable by private cause of action—dating to 1786 in the state declaration of rights: "That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them."

The article is Jessica Terkovich and Aryeh Frank, Constitutionalizing Access: How Courts Weigh State Constitutional Claims in Open-Government Litigation, 3(1) J. Civic Info. 1 (2021).

Incarcerated persons have access to information in Massachusetts law, court confirms, but not in all states

Image by Ichigo121212 from Pixabay

A man imprisoned for murder has a right of access to public records no less than anyone else, the Massachusetts Appeals Court held in the summer.

Nine years ago, Adam Bradley was co-perpetrator of a home invasion in Billerica, Massachusetts, northwest of Boston, in which 22-year-old resident Quintin Koehler was shot and killed.  The crime was tied to the Bloods gang, according to The Boston Globe.  In 2017, at age 32, Bradley was convicted of first-degree murder and sentenced to a life term.

Lately, Bradley has used the Massachusetts Public Records Law (PRL, or FOIA) to investigate his conviction by requesting police records.  He alleged in a lawsuit that the State Police records access officer (RAO) failed to respond to multiple PRL requests.

In court, the RAO resisted production under the PRL on two grounds, (1) the ongoing investigation exemption of the PRL and (2) the parallel availability of records to Bradley in criminal discovery.

The Appeals Court soundly rejected both state arguments.  On the first ground, RAO overreached by declaring the entirety of the case file within the investigation exemption.  On the second ground, the PRL operates independently of parallel access in criminal process, the court held.  The RAO anyway owed Bradley a response asserting grounds for non-production.  The state public record supervisor twice ordered the RAO to respond.

The court holding accords with state freedom-of-information norms; the most noteworthy point of the case is that an appeal was required.  As in other states' FOIA exemptions for ongoing investigations, the Massachusetts PRL requires record-by-record review, redaction for partial production when possible, and, if necessary, in camera inspection by the trial court in a legal challenge.

The problem of parallel access is somewhat more vexing, though still should not have confounded the RAO.  Some states expressly exclude active litigants from FOIA uses that might subvert judicial procedure.  But such exclusions, which are far from universal, typically do not bar post-conviction access in criminal matters, even with ongoing appeals.  The RAO in the instant case relied on regulatory language that faintly suggested discovery exclusivity, and the court properly dispelled that theory.

Parallel access questions are thornier when there are state regulatory mechanisms in play that arguably supersede state FOIA as a matter of legislative intent, especially in the area of business regulation.  For example, a statutory framework for state contracting might regulate disclosure and non-disclosure of records maintained by the contractor or submitted to the state, arguably superseding FOIA access.  Even then, the rule of statutory construction that FOIA access is to be construed liberally and FOIA exemptions to be construed narrowly usually makes FOIA a trump card.  Bradley's case presented no such wrinkle.

The case is noteworthy also for a rule that is not at play.  Massachusetts is not one of the states that has limited or simply disallowed FOIA use by prisoners.

The Arkansas Department of Corrections (DOC) lobbied successfully for an amendment to the Arkansas FOIA in 2003 to exclude incarcerated felons from the state definition of "citizen."  Access advocates, including me, managed at that time to negotiate the exclusion down to only DOC records and pro se requests, allowing attorney-representatives to make requests.  Eight years later, the exemption was amended to eliminate the DOC limitation.

It was difficult to advocate for prisoner access.  Incarcerated felons are not a popular constituency and don't vote.  And to be fair to state officials, many dilatory and hardly comprehensible requests emanate from prisons and tie up public resources with no clear public benefit.  At the same time, of course, persons deprived of liberty are susceptible to human rights abuses for which accountability is notoriously elusive.  Michigan public radio in 2016 explored the problem of prisoner civil rights in the absence of access to information in that state's law.

The Massachusetts case is Bradley v. Records Access Officer, No. 20-P-419 (Mass. App. Ct. 2021).  Justice Gregory I. Massing authored the opinion for a unanimous panel also comprising Justices Henry and Ditkoff.  Before appointment to the bench in 2014, Justice Massing served as executive director of the Rappaport Center for Law and Public Service, and previously as general counsel for the state's Executive Office of Public Safety and Security.

Accidental deaths on nonpublic stairways threaten public transit with tort liability in London, Boston

Canning Town Station in 2020
(photo by Ewan Munro CC BY-SA 2.0)

An English court last week exonerated the London Underground of liability in the death of a trespasser who fell down fire-escape stairs; meanwhile, in New England, investigation continues into the death of a Boston professor who fell from disused stairs in the Massachusetts Bay Transportation Authority (MBTA) system.

The facts of the cases differ, but both point to the obligation of aging transit systems to secure their physical infrastructure, even against risks to trespassers.

Bernard Ovu, a 35-year-old IT specialist for the UK Bar Council, fell, hit his head, and died in 2017.  On a meandering journey on a bitter-cold night, Ovu was returning home from a wedding; a post mortem test reported his blood-alcohol level at 0.176%.  At about 2 a.m. at the Canning Town Station, Ovu went through an emergency exit door, where an emergency stair led to a second door to the street.  Surveillance showed that Ovu reached the street-level exit door, but, for unknown reasons, did not push it open.

An image in the Ovu opinion depicts Canning Town Station.
The triangle marks the platform exit; the square marks street
access. Ovu fell at the circle.

Meanwhile, responding to a silent alarm, an Underground worker had secured the platform-level door.  Evidence showed that Underground policy required workers to sweep the area before re-securing the door, but no sweep was done.  Underground officials knew the emergency way was accessed occasionally, especially in late-night hours, by persons seeking to urinate or vomit.  Ovu could not reenter the platform and apparently believed himself trapped.  Seeking another exit, he fell on the stairs at 2:49 a.m. and died, possibly as a result of the combination of his injuries, intoxication, and the below-freezing temperature.

A professor in the Boston University School of Public Health, David K. Jones also was in a place where he should not have been.  The 40-year-old was out for a Saturday morning run in September when he took a staircase down from an overpass near the JFK Station.  The staircase was rusted and missing six steps: a gap through which Jones fell 20 feet to his death.  The staircase had been closed for 20 months and was fenced off at top and bottom; it is unknown how or why Jones entered it.  The MBTA removed the stairway days after the accident.

With investigation continuing in the Jones accident, the MBTA system has since suffered a bloody escalator accident and a pedestrian near-miss with debris falling from a stairway.  Commentators have thus linked the state of the transit system with the national debate over infrastructure financing.

The court in the Ovu matter ruled that Ovu was a trespasser in the emergency way and that the Underground had conducted itself reasonably relative to that status.  Despite the Underground's derogation of policy, Ovu had arrived in his predicament through his own misfeasance, and he was not in fact trapped.  It remains unclear whether Jones knowingly passed through secure fencing; if he did, then he was a trespasser on the rusty stairway from which he fell.  If that was the case, then Massachusetts law would not preclude liability, but would afford less latitude to a plaintiff than UK law.

Historically, common law was unforgiving of trespass.  The web of rules that evolved for the problem of landowner liability for dangerous conditions varied the liability rule depending on the status of the injured person.  At its simplest, distinctions were drawn in the three categories of public invitees, social guests ("licensees"), and trespassers.  The latter were owed little in the way of landowner duty, at most to refrain from the intentional or reckless infliction of harm.

Common law complexity has gradually given way to a unitary "reasonableness" standard, under which the status of the plaintiff is referred to the jury as a circumstance for its consideration.  When the Washington Supreme Court chose to retain the common law framework in 1986, it observed that only nine states had moved to the unitary standard—as well as England, by statute.  Today, half of states have adopted the unitary standard, and it is favored by the Third Restatement of Torts.

But among unitary-standard states, trespassers are not necessarily incorporated, reflecting a continuing vitality in their common law disfavor.  States, including Massachusetts, exclude trespassers from the unitary standard by a ratio better than two to one.  After some wrangling in the case law, the UK by statute incorporated trespassers into the unitary standard.

Thus, Ovu, even as a trespasser, was owed a duty of reasonable care.  A Massachusetts trespasser can prevail only upon proof of reckless or intentional wrongdoing.  If the estate and family of Jones seek liability from the MBTA, they will be far better off if the investigation uncovers a defect in how the stairway was secured.  If Jones made an innocent mistake of fact, then plaintiffs might hope to challenge his status as a trespasser and move him to within the unitary reasonableness standard.  That uncertainty might explain why there has not yet been report of a lawsuit in the Jones matter, while the Sept. 26 escalator accident yielded a suit by the first of October.

It happens that the Massachusetts Appeals Court heard a case about just such a mistake of fact in 2016.  In Bernier v. Smitty's Sports Pub, Inc., a pub patron in his 70s, Ronald Leger, was killed when he fell down a dark basement stairwell with uneven steps.  Leger mistook a door marked "Employees Only" for the entrance to the men's room.  He had been drinking, but had been to the pub and used the restroom before.  The door usually was locked, and there was no evidence that a patron had made the same mistake before.

The trial court in Bernier ruled Leger not a trespasser.  The adequacy of the marking on the unlocked door, at the pertinent time at which Leger stood before it, was incorporated into the question of negligence for the jury's consideration.  The jury awarded the plaintiffs 80% recovery after reduction for Leger's own negligence in making the mistake.

On appeal, the court affirmed.  The status of a visitor on land, trespasser or otherwise, was properly a question of law for the trial court, the Appeals Court opined.  The jury verdict was sufficiently supported by the evidence.  One could imagine a similar analysis in the Jones matter.

The English case is Ovu v. London Underground (Q.B. Oct. 13, 2021).  Master Victoria McCloud authored the opinion.  HT @ Gordon Exall, Civil Litigation Brief, via Private Law Theory.  Wells, Anderson, & Race, LLC, Denver, Colo., prepared a 50-state survey of landowner liability regimes in the United States in 2015 for the National Association of Minority & Women Owned Law Firms.

RIP Russ Kick, eccentric FOIA champion

With images obtained under the federal FOIA, Russ Kick's "Memory Hole"

catalyzed conversation on the Iraq war. Now archived at the Library of Congress.

The transparency community lost an eccentric hero in September: Russ Kick died at his home in Tucson, Arizona, at age 52.

Kick's passing has been reported in many forums, and he was well remembered by The Washington Post and Seven Stories Press last week.  Nevertheless, I feel bound to add my own recognition of the loss.  A self-described "rogue transparency activist," Kick was a legend in the access community.  I knew him only through email exchanges.  I remember him as consistently eager and obliging at the prospect of rallying a recruit to any one of his many causes.

I'm sorry that the Post obit, by Harrison Smith, is paywalled, because it's a thorough and deserved tribute to a remarkable person who embodied the term "citizen-activist" long before it was fashionable.  Kick was a "FOIA frequent flier" who used the "spear" of access law, as Senator Patrick Leahy recently described the federal FOIA, to investigate the many causes that stirred him, from chemical warfare to animal welfare.

Kick had some real wins, too.  His 2004 publication of photos of coffins returning from the Iraq war stimulated vital public discussions about access, privacy, and, of course most importantly, the war itself.  The Defense Department said the photos were released mistakenly.  Vibrant discussions in my FOI class were fueled by those photos and by other content that Kick collected at his Memory Hole website (archived).  Kick's many and varied collection of FOIA prizes persists, for the time being, at The Memory Hole 2 and its "sister site," AltGov2.

Kick edited "The Graphic Canon."

I don't want to be too narrow in my recollection, nor to whitewash Kick's sometimes bawdy tastes and conspiracy-minded inclinations.  His eclectic libraries of content rescued from digital deletion ranged beyond government records to, as the Post summarized, "classic literature, erotica, food and ancient meditation practices."  His literary talents generated a bibliography of the intriguing and bizarre, including a "disinformation" series that touted conspiratorial revelations on governments and sex.  Meanwhile, he edited stunningly artful representations of classic literature in graphic novelizations.

It would be easy to write off Russ Kick as a quaint sort of crackpot.  The Post quoted Kick aptly describing himself: "'I can't focus completely on any one thing for too long,' he wrote in an online biography. 'My personal brand is a mess.'"

Yet with such volume of productivity in so many veins, with real impact that moved the needle to put the demos back into democracy, there was undeniably genius in the madness.  Russ Kick left the world better off than he found it for what he contributed.  Any of us should be so blessed to have the same said of us when we're gone.

Unregulated, 'Dark Waters' chemicals persist in cookware, clothing, sickening people, environment

Comedian and social critic John Oliver's latest top story on HBO's Last Night concerned PFAS, the artificial chemical substances behind non-stick coatings on cookware and incorporated into food wrappings and textiles, known to be highly dangerous to human health.

The stuff persists, Oliver explained, in new, unregulated, and unlabeled formulations, despite a horrific track record of illness, from obesity to terminal cancer, and environmental damage.  Oliver related recent history by quoting parts of the landmark New York Times Magazine feature by Nathaniel Rich in 2016, "The Lawyer Who Became Dupont's Worst Nightmare."  That piece inspired the unsettling 2019 feature film Dark Waters.  Oliver also excerpted a 2018 documentary, The Devil We Know.

PFAS, a "forever chemical" that persists in the environment for thousands of years, is now in the blood of virtually all Americans.  Food wrappings and clothing are our greatest risk, Oliver explained, and there is no labeling to warn us.

I just caught this on a spot-check. Adiós, sartén.

In my household, since Dark Waters brought the issue to our attention, we've exclusively adopted silicone tools to use with non-stick-coated cookware.  And at the first sign of scratching, out goes the pan or pot: a pricey luxury we are lucky to be able to afford, while we only worsen the environmental problem.  We have lately been investigating non-stick alternatives, and Oliver has ignited the gas burner under us to get moving on that.

PFAS is in the water supply, too, sometimes in alarming doses, 70 parts per trillion (ppt) being the EPA's recommended maximum concentration in drinking water.  Oliver pointed viewers to a "PFAS Contamination" interactive map created by the NGO Environmental Working Group.  The map is intriguing and informative to play around with, as it compiles water quality data from around the country.

But the most frightening takeaway from the map is the data it does not contain.  Data collection is hit or miss.  The closest results to me in East Bay Rhode Island come from a small school serving only 40 persons (4 ppt), a Massachusetts water district serving 13,627 persons (20 ppt), and the Pawtucket (R.I.) water system, serving 99,200 persons and reporting a PFAS excess at 74 ppt.

My local water authority, Bristol County (BCWA), says my water rather comes from Providence, which is not on the EWG data map, and where water quality reports appear to be missing.  It further undermines my confidence in the system that BCWA has been wanting to build a pipeline to Pawtucket, which offers, BCWA says, "another source of excellent quality water."

At last, Europe is moving ahead with regulation; I hope that will spur the United States to follow suit.

[UPDATE, 17 Oct. 2021:  Providence Water sent me a copy of the 2020 Water Quality Report in the mail. As anticipated by Oliver, there is no mention in the report of PFAS.]

Sheriff FC tells two tales, because that's football, life

Selfie, today (RJ Peltz-Steele CC BY-NC-SA 4.0)

The Sheriff Football Club from Tiraspol in Transnistria, Moldova, defeated western European powerhouse Real Madrid, at home at the Bernabeu, in Champions League football last week.

Coincidentally, I've lately been sporting my "Sheriff" ball cap.  I wrote about Transnistria after my visit there, and to Sheriff's 12,000-seat stadium in Tiraspol, two years ago: "Breakaway state of Transnistria might model new Russian sphere of influence" (Dec. 16, 2019).

It's interesting to see how media outlets describe Sheriff's geographic home.  Most I've seen say "Moldova," which, I guess, is what you find if you look at a political map.  Wikipedia describes Tiraspol as "the capital of Transnistria, a breakaway state in Moldova."  Only in an Al Jazeera main headline did I see exclusive mention of Transnistria.  The subhede then started, "Football club from a pro-Russian separatist enclave in Moldova."

After I crossed into Transnistria and showed my papers to the heavily armed border guards to get my 24-hour visa in a flurry of stamps, I didn't feel like I was still in Moldova.

Most media outlets have not picked up the political thread on the upset story.  In one exception, Sheriff's road to Champions League glory is well contextualized by Gab Marcotti for ESPN FC.  He observed that none of the Sheriff players are Moldovan or Transnistrian—but before one "get[s] high and mighty about national identity, please consider that at the final whistle, there were exactly zero Spaniards on the pitch."

Is the Sheriff-over-Real-Madrid story "a 'fairy tale' or a sad reflection"? Marcotti wondered.  On the one hand, there is the peculiar joy of football as sometimes, or seeming, social leveler:

Let it be a reminder that ordinary players, on an ordinary Tuesday night, can walk into the temple of football and knock it down, like Samson back in the day. That's part of the appeal of this sport. It's low-scoring, it's mano-a-mano, and the gap between superstars and extras may be huge over time, but on any given day, it can be tiny and anything can happen.  

Marcotti drew on a Twitter thread from near-Tiraspol-born, ethnically Russian, now Baltimore, Md.-based sportswriter Slava Malamud to illustrate the other hand:

[Sheriff] have been Moldovan champions in 19 of the past 21 years, they have the country's only modern stadium and they're bankrolled by the Sheriff corporation, a conglomerate that includes Transnistria's only supermarket chain, gas station chain, telephone network, TV channels, publishing house and distillery. The owners have close ties to the local government, which, in turn, is funded and protected by Russia. This isn't just a company team; it's a company town in the company enclave of Transnistria, and you can't shake the feeling that this is what it takes for "fairy tales" like this to take place in the modern game.

Football is metaphor.  What happens on the pitch, especially when recounted by capable journalists, is contradiction, because contradiction is football, and football is life.  Sheriff is fairy tale and sad reflection.  In the same way that pride and frustration are fast friends.

Undefeated in the group stage, Sheriff now leads UEFA Champions League Group D with wins over Real Madrid and Ukraine's Shakhtar Donetsk.  Sheriff will face Inter Milan, in Milan, on October 19, again putting the fairy tale to the test.

(Below, BT Sport tweet from Sheriff's August win over Dinamo Zagreb to reach the Champions League (retweeted by Malamud)).

History is made! 🇲🇩

Sheriff Tiraspol become the first Moldovan side to EVER qualify for the Champions League group stage! 👏#UCL pic.twitter.com/JxkJtOKYOH

— Football on BT Sport (@btsportfootball) August 25, 2021

Boston flag scrap heads to Washington

Three flagpoles at Boston City Hall (photo by Daderot CC0 1.0)

A Boston First Amendment flag-flying case is Supreme Court bound.

The case centers on three flagpoles at Boston City Hall.  The city flies the U.S. flag and POW/MIA flag on one pole, the Massachusetts flag on the second, and usually, the city flag on the third.  However, the city occasionally replaces its own flag with another.  The city refused a request by Camp Constitution, a religiously oriented civic organization, to fly the Christian ecumenical flag.

The First Circuit, affirming the district court, ruled for the city.  The court applied the government speech doctrine, holding that the third flagpole was reserved for the government's own speech, not opened as any kind of public forum for private speech.

The decision was supported by the testimony of city commissioner George Rooney, who said that he reviewed applications for flag raising for "consisten[cy] with the City's message, policies, and practices." The city moreover relied on its own First Amendment obligation not to establish religion.

Camp Constitution maintains that the application process expressly dedicates the flagpole as a public forum, so the First Amendment public forum doctrine should pertain.  In a public forum approach, the appellant reasons, exclusion of the ecumenical flag would be an impermissible discrimination against a religious viewpoint.

As the parties' positions demonstrate, the line between government speech doctrine and public forum doctrine is not always bright.  The government has the power to utter its own messages; think of Nancy Reagan saying, "Just Say No," or President Biden telling people to get vaccinated.

But when government opens a forum for public participation, its ability to censor within the forum is limited to setting the parameters of the forum.  Censorship of messages based on content must satisfy heightened First Amendment scrutiny, and censorship based on viewpoint is generally disallowed.  The paradigm is a bulletin board in a city park where the public is invited to post flyers.

Forums can be metaphysical, too.  Public forum doctrine was employed to limit President Trump's ability to excommunicate Twitter followers.  Tumultuous litigation over vanity license plates in the states have tugged back and forth across the government speech-public forum line, depending on how the government sets up the program.

The problem here is in large part of the city's own making, because, the First Circuit told us, "the City had no written policy for handling flag-raising applications. What is more, Rooney had never before denied a flag-raising application."  So Rooney was processing "applications," when "applications" were not really a thing.

Three months after Camp Constitution initiated litigation, the city adopted a written policy.  The first rule of the policy, on which the city now relies, "forbids the 'display [of] flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.'"

The city's position is not helped by its history of flying a lot of flags.  The court recounted:

In a twelve-year period (from June 2005 through June 2017), the City approved 284 flag-raising events that implicated its third flagpole. These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as "gay pride"). The City also has raised on its third flagpole the flags of other countries, including Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey. So, too, it has raised the flags of Puerto Rico and private organizations, such as the Chinese Progressive Association, National Juneteenth Observance Foundation, Bunker Hill Association, and Boston Pride.

The city balked, it said, when faced with a first request to fly a religious flag.  The city believes that distinction bolsters its position in consistent policy and anti-establishment.  The same fact supports Camp Constitution's position, that the city is impermissibly hostile toward religion.

Flag controversies have been raging across the country.  My own hometown of Barrington, R.I., was rent in factions when, after a racially charged confrontation between residents, the town manager flew the Black Lives Matter flag at the town hall.  The United Veterans Council objected to what it perceived as diminution of the U.S. flag.  Like in Boston, the controversy was fueled by the town's lack of a policy.

The Supreme Court granted cert. in the Boston case yesterday.  Track Shurtleff v. Boston, No. 20-1800, at the Supreme Court and at SCOTUSblog.  HT @ The Volokh Conspiracy.