Tort Anomalies, Other Worlds, and Fox Tales
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| Ready for shopping |
My
quarantine since returning to the United States ended last weekend, and we made a bold trip to the grocery store to refuel. Whole Foods effectively stopped delivery here since the
strike, and our nearest locally owned delivering
grocer is on the opposite side of Narragansett Bay. So we suited up with gloves and, as Rhode Island Governor Raimondo
instructed, bandana masks to leave the house. Otherwise, life isn't much different in or out of official self-quarantine.
What I'm Reading
My sabbatical plans prematurely aborted, this week involved catching up on some professional reading. For those into legal arcana, here are the most interesting reads that crossed my virtual desk. Other readers, feel welcome to scroll down to TV. I'm also continuing with
my church's Bible reading, which has us into the David saga of
2 Samuel, with excellent accompanying
video as usual by the BibleProject.
For those who celebrate, respectively, happy Passover, and happy Easter!
Steve Hedley, Tort: The Long Good-Bye (Apr. 8, 2020). Posted to SSRN, this paper is a fascinating survey of tort law through history, culminating in and replete with contemporary observations ripe for the unpacking.
Prof. Steve Hedley, University College Cork School of Law and
Private Law Theory, sees tort law as on its way out, but not without leaving tort lawyers and scholars with plenty of work to do in the process. As his abstract explains, "Discouraging harmful behaviour is a fundamentally different project from supporting the sick and penniless.... [W]e cannot finally say farewell to tort until all of its vital functions are replaced with better provision, which requires both political will and a fair degree of optimism – both currently rare commodities." Consider this observation: "From the 1980s onwards in the US, ‘tort reform’ began to be code for restricting tort without replacing it with any other system – in other words, putting tort’s hitherto steady expansion into reverse." As someone committed to tort's social value and also someone who suffers anxiety over corporatocracy, I found compelling Hedley's broader thesis that the tort system has been honed over centuries to work its aims on people, and the system is dysfunctional vis-Ã -vis corporations, which today account for the vast majority of tort defendants.
James Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. 957 (2019). Causation has been a central obsession of philosophers for millennia, and it's something lawyers worry a lot about too. I am liable for battery if I
punch a compatriot at the bar. But that conclusion assumes that the plaintiff-victim is complaining of injury that sits along a causal flow downstream from my ill intention. What if the plaintiff suffered from a pre-existing injury, and I complicated it? What if, subsequent to our encounter, the plaintiff's injuries were worsened by medical malpractice? Things get more complicated when physical injury is removed from the problem. When is an employer's discriminatory intent a legal
cause of wrongful termination if the employee would have been fired anyway for misfeasance? In tort law, contemporary American courts struggle to approximate the "ordinary" meaning and understanding of causation.
See,
e.g.,
Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media,
No. 18-1171 (U.S. Mar. 23, 2020) (
SCOTUSblog). In an ambitious project of empirical survey research,
Prof. James Macleod, Brooklyn Law School, has demonstrated that despite this effort, our understanding in tort law may have diverged from ordinary understanding in important respects.
Daniel J. Solove, The Myth of the Privacy Paradox (last rev. Mar. 13, 2020). Years ago, when privacy law was barely a thing, those of us working in freedom-of-information-advocacy circles counter-argued to personal-privacy proponents that the public's desire for privacy was belied by how readily a person would surrender name, address, and telephone number for an extremely unlikely "chance to win" ripped from a cereal-box top. The Reporters Committee for Freedom of the Press named
an influential publication after this "privacy paradox" in 1998, and my friend and colleague
Charles N. Davis, now dean of journalism at Georgia,
ushered the concept into the digital age. More recently, see WNYC
Note to Self's
"Privacy Paradox" project (logo pictured). Now privacy law guru Prof.
Daniel Solove, George Washington Law, has turned his attention to the problem. In a new paper, posted to SSRN in February and forthcoming in the
GW Law Review, 2021, Solove explains that the paradox emerges from an error in level of abstraction. A person's disregard for privacy in the narrow and specific context of filling out a raffle entry cannot be equated to a person's rational and more holistic notion of personal integrity.
Alien tort: Nevsun Resources Ltd. v. Araya, 2020 S.C.C. 5, [Feb. 28, 2020] (Canada). Amid recent decades of globalization, comparatists and internationalists in U.S. tort law have been rapt with waxing and waning trends in the extraterritorial application of American law, especially under the enigmatic
Alien Tort Statute (
e.g.,
Radiolab). The same trends are evident around the world, as national courts struggle to demarcate limits to their own power, balancing classical principles of comity and judicial restraint against burgeoning challenges to human rights coming from both public and private sectors. In a 5-4 decision in February, the Canada Supreme Court dismissed a claim under customary international law upon compelling allegations: "Three
Eritrean workers claim that they were indefinitely conscripted through Eritrea’s
military service into a forced labour regime where they were required to work
at a mine in Eritrea. They claim they were subjected to violent, cruel, inhuman
and degrading treatment. The mine is owned by a Canadian company, Nevsun
Resources Ltd." The court dismissed under "act of state doctrine," an extra-constitutional principle of judicial restraint comparable in function (
see,
e.g.,
Achebe,
Cooper,
Hill), to foreign sovereign immunity. HT @
Prof. Simon Baughen, Swansea University, Wales.
Climate change: Smith v. Fronterra Co-op. Grp. Ltd., [Mar. 6, 2020] N.Z.H.C. 419 (New Zealand). In a legal era of legislative abdication, interest groups have resorted to courts around the world to combat climate change. A victory upon an unusual statutory basis in a Dutch appellate court in 2018 (
The Savory Tort, Oct. 12, 2018),
upheld by the Dutch Supreme Court in 2019, lent perhaps undue optimism to the global movement, which is ongoing. Courts in many nations have fairly determined that the judiciary is ill suited to tackle the profound policy crisis of climate change. Accordingly, in January, the U.S. Ninth Circuit dismissed a youth class action in Oregon that had gained some traction after an indulgent district court ruling (
The Savory Tort, Oct. 12, 2018).
Juliana v. United States,
No. 18-36082 (9th Cir. Jan. 17, 2020). Unremarkably, then, the New Zealand High Court decided likewise, in part, in a climate case in Auckland in March. A plaintiff coastal land owner sued greenhouse-gas-emitting energy and dairy interests on three tort theories, "public nuisance, negligence, and breach of an inchoate duty." The court dismissed the first two counts for reasons of, respectively, failure of injury different in kind and degree as between plaintiff and public, and failure of foreseeability. What's interesting is what the court wrote briefly about the plaintiff's surviving "inchoate" theory:
I am reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable. As noted by [three justices on the N.Z. Supreme Court in a paper at a 2019 climate change conference in Singapore] it may be that a novel claim such as that filed by Mr Smith could result in the further evolution of the law of tort. It may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions. These are issues which can only properly be explored at trial. I am not prepared to strike out the third cause of action and foreclose on the possibility of the law of tort recognising a new duty which might assist [plaintiff] Mr Smith.
HT @
Prof. Barry Allan, University of Otago, Dunedin, N.Z., who predicts, via the
Obligations Discussion Group, "that the defendants will appeal the decision that the inchoate tort is tenable, although they may act strategically and demand that this first be properly pleaded."
What I'm Watching
Goliath s3 (
Amazon trailer) was
so much better than s2. Season 2 kind of sold out on the concept of Billy McBride as a civil lawyer and got drawn nearly into the realm of trite criminal procedural. Plenty of crimes definitely happen in s3, but the legal drama centers on a class action lawsuit to save a small California town that's had its water supply stolen by a ruthless family of almond farmers. Billy McBride (
Billy Bob Thornton) and partner Patty Solis-Papagianis (
Nina Arianda) are in top form, and legal TV trivium: Patty's biological mother is played by
Monica Potter, who was Crane, Pool & Schmidt associate
Lori Colson in
Boston Legal s1 (2004-05).
Ragnarok s1 (
Netflix trailer). This six-episode Norwegian supernatural mystery is thoroughly entertaining, with top-flight dubbing into English. It's proved a smashing success as a Netflix original—Netflix has 750,000 subscribers in Norway and 4m in Scandinavia,
according to What's On Netflix—produced by Copenhagen-based
SAM, and already has been green-lighted for a second season. The show takes place in the fictional Norwegian town of Edda, which is the real southwestern, fjord-side town of
Odda, where a ruthless family of manufacturing magnates have poisoned the local water supply and accelerated the melting of the glaciers (recurrent theme). Our hero, Magne (
David Stakston), is a
Billy Batson-like teen who gradually realizes that he's a kind of incarnation of the Norse god Thor, destined to battle evil to save his town and the environment. The story plays loosely with Norse myth, giving Magne a trickster brother, Laurits, played with Loki-worthy aplomb by
Jonas Strand Gravli.
The New Pope (HBO). Academy Award-winner John Malkovich proves his iconic status yet again in this brilliant portrayal of a weirdly enigmatic and intellectual Pope John Paul III, who ascends to the papacy upon the unusual circumstance of a comatose predecessor. This is really a second season, a worthy sequel series to The Young Pope, in which Jude Law starred as a megalomaniacal yet magnetic and possibly truly divine Pope Pius XIII. Negligible spoiler, mostly tease: Pius does come out of his coma, and the two great actors take the screen together before the season ends.
Altered Carbon s2 (Netflix trailer). Dystopian science fiction at its small-screen best, this Emmy-nominated winner is back to tell more of the story of "the last Envoy" soldier Takeshi Kovacs, based on the cyberpunk novels of Richard K. Morgan. Thanks to the plot device of human immortality through changing bodies ("resleeving"), New Orleans-born Anthony Mackie, the Avengers' Falcon, is able to take over, from s1's Joel Kinnaman, House of Cards' Will Conway, the lead role of Kovacs in s2, and muscular Mackie shines, or broods, as the case may be. Ironically, the delightful yet ephemerally holographic character of Poe is carried over from s1 in the capable craft of Chris Conner. Netflix also has premiered a 74-minute animated feature film in the Altered Carbon universe, Resleeved; Conner has a voice role.
Curb Your Enthusiasm s10 (HBO). Comedy break. Every episode is instant-classic LD. The familiar cast returns, including Jeff Garlin, who never misses an improvised punchline.
A new category this week, "I Watched, But Can't Recommend":
First, a lot of folks are talking about Kingdom, a two-season-and-counting Korean Netflix horror to sate your unhealthy bloodthirst for zombies when you've run out of Walking Dead and Z Nation. I got through half of s1, and it couldn't hold my interest. The zombies are secondary to a drama about entitlement to the royal throne; I had trouble following the story or caring. If you need a zombie fix, I suggest Daybreak s1 on Netflix, though it will not get a second season.
Second, I caught up on Riverdale s4 over at CW TV, coming soon to Netflix. It was a decent backdrop for multi-tasking, but couldn't hold my attention full-time. It was fun for the first couple of seasons, but the characters and story have played out. If you're missing K.J. Apa, watch The Hate U Give again while hoping his agent gets him another worthy TV vehicle.
Third, Westworld s3. To be fair, I'm probably going to watch the whole thing, because I love the visuals and the addition of Aaron Paul. But what the heck is going on? Who are all these people? Maybe the pieces will come together, but as of now, I'm not even sure what the show is about.
What I'm Eating
As we made it to the grocery store this week, my wife acquired the necessaries for her famous Louisiana gumbo with chicken and andouille. The filé powder we had already, not easy to come by in New England.
Remember, as your resources permit, to #SaveOurRestaurants. We had goat cheese burgers from Billy's last week, and this week we have our eye on Brickyard Pizza Co.
What I'm Drinking
We're very fond of Gevalia's single-origin line, and Costa Rica Special Reserve is our favorite. Tico ag, Swedish craftsmanship.
The Foxtale Dry Gin, from Portugal, is inspired by the fox of The Little Prince (Amazon; in The New Yorker): "the ideal digestive for a night with friends"—at a proper social distance, of course. A solid choice, though I'm hard pressed to detect any particular botanical beyond the citrus and a hint of malt.
What I'm Doing to Stay Sane
East Bay Bike Path. I haven't been able to run with the sprained ankle I dragged home from Africa, but biking has been OK. And luckily, as yet, Rhode Island has not closed the bike paths with the state parks. There was a rumor of bike path closure on Nextdoor.com, and I hope that doesn't come to be. I admit that there have been some troubling concentrations of people at bike path choke points, as in the center of East Providence. But if the paths close, there will only be more people squeezed along busy, sidewalk-less streets, such as mine, where cars compound the corona risk. Hear me, o Honorable Governor.
Our long national nightmare lumbers on.
