Thursday, November 2, 2017

Documentary film critically examines 'Deflategate,' exposes science-for-hire industry, Big Sport marketing machine



At UMass Law School, from left to right: yours truly, sporting a Brady kit gifted by my Torts students, night class of 2018; author, commentator, and comedian Jerry Thornton, former NFL employee Scott Miller; Lemon Martini producer and UMass Law alumna Ami Clifford; and Julie Marron, acclaimed director of Happygram and Four Games in Fall.

The UMass Law School community had a special treat of an event last week: an invitation-only, friends-and-family pre-screening of the director’s cut of the forthcoming documentary, Four Games in Fall, from director Julie Marron and Lemon Martini Productions.  See the film’s home page and trailer here, or the trailer below.  The film is in essence a documentary about “Deflategate,” the 2015 scandal in the National Football League in which New England Patriots Quarterback Tom Brady was accused of orchestrating the under-inflation of footballs to rig games in his favor in the Patriots charge to Superbowl victory.

UMass Law alumna Ami Clifford is a producer of Four Games in Fall, putting her legal education to creative use making—as the tagline for Lemon Martini puts it—“social justice documentaries with a twist.”  Marron is an acclaimed Massachusetts director fresh off the roaring success of her 2015 documentary about mammograms and breast cancer, Happygram.  For a Q&A after the screening, Marron and Clifford were joined by documentary interviewees: Scott Miller, a New Yorker and former NFL employee; Jerry Thornton, WEEI radio personality and author of From Darkness to Dynasty: The First 40 Years of the New England Patriots; and Andrew E. Wilson, a marketing and management professor at St. Mary’s College of California.

Four Games in Fall did not disappoint.  Marron and Clifford explained in the Q&A that neither one of them had more than a passing interest in the NFL and the Patriots when they set out to make the documentary.  But they were attracted to exactly that aspect of the Deflategate scandal: that so many people without a vested interest in Patriots football, with nothing to gain by sticking their necks out, seemed to be taking an interest in the case.  Roughly as Clifford said it, when a lot of very smart people in the sciences, with at best ordinary interest in American football, started looking at the Deflategate case and the penalties exacted against Brady, and saying “something smells here,” she and Marron started paying attention.  They had no agenda, but Four Games in Fall definitely raises red flags—or, I guess, throws yellow ones—on what seems to be NFL commissioner Roger Goodell’s hell-bent persecution of star-athlete and national celebrity Brady and football’s Superbowl-winningest team.

Therein lies the subtle brilliance of Four Games in Fall, which takes full advantage of the documentary format not only to examine Deflategate on its facts and merits, but to place the affair in a critical context from social, commercial, scientific, and legal perspectives.  Reminiscent of Morgan Spurlock’s classic Super Size Me, Four Games features Professor Wilson to explain marketing phenomena such as “anchoring” and “confirmation bias.”  Those concepts help to explain why the conventional wisdom about what actually happened in Deflategate runs so contrary to the facts.  Following the dollar, Marron furthermore examines the enormous market power of the NFL, which amplifies its messaging and suppresses contrary views from the audience and the players’ union.  In this vein, the film brings in the NFL’s reluctant engagement with the mounting evidence of CTE injury and critically exposes the "science for hire" industry.  Meanwhile, science--the real stuff--reveals the startling imprecision behind NFL rules such as ball-inflation standards.  Those standards are so faulty as not to account for on-field temperature in a sport played in late autumn and early winter.

Against this backdrop, Brady’s case winds through the courts, where yet another story unfolds: the un-level playing field of pervasive arbitration agreements, affecting even NFL players, and the Second Circuit’s judicial-typical capitulation to boilerplate contract at the arguable expense of fundamental fairness.  Brady dropped his case before trying to press on to the U.S. Supreme Court, disappointing many observers, including, at that time, he confessed, Thornton.   But the film and the panelists explained a number of reasons why it made no sense to continue.  Brady’s mother was diagnosed with cancer, which did not bolster the QB’s will to litigate.  Yet just as importantly, Brady’s legal team must have realized that its case, implicating NFL players and their union in opposition to the enormous power of the NFL, was sui generis.  It did not make for the kind of broad-implication inquiry that the Supreme Court would likely want to see before exercising discretionary review.  In truth, the many NFL players who are not stars do face physical hardships out of proportion to their remuneration and job security, just like an average factory Joe.  At the same time, NFL players are not Willy Loman, and the NFL is not--quite--E Corp.

Nevertheless, Deflategate, informed by Four Games in Fall, leaves a bad taste in the mouth.  We do, as Americans, seek to identify personally with our sporting heroes, however aspirational the comparison.  Tom Brady’s retiring temperament (supermodel spouse notwithstanding) and boyish charm have the feel of an underdog American David who took on the NFL corporate Goliath and lost.  Whether one agrees or not with the physical and social scientists who populate the frames of Four Games in Fall, it’s hard to conclude on the legal end that Brady and the Patriots got a fair shake.  And with so many of us worker bees—tied up in arbitration contracts we did not meaningfully agree to and don’t really want, beholden to the disproportionate and opaque oligopolistic power of mammoth corporations for just about everything we do, including our employment and especially lately our healthcare—Brady’s loss unexpectedly hits home with all the punch of a 300-pound offensive tackle.

Our hero should have vanquished Goliath and failed.  If Tom Brady can’t beat the monster, what hope is there for the rest of us?

Four Games in Fall is setting off soon for the festival circuit and will come to consumers through one media channel or another shortly thereafter.  See it.  You don’t have to be a fan of American football; I’m not.  This film is about so much more.

 Four Games in Fall trailer.

Wednesday, November 1, 2017

Villanova symposium seeks to rejuvenate 50-year-old U.S. FOIA

Panel 5 on global and comparative perspectives: moderater Fran Burns, professor of practice in the Department of Public Administration at Villanova University; Anamarija Musa, commissioner of information for the Republic of Croatia; Suzanne J. Piotrowski, associate professor in the School of Public Affairs and Administration, Rutgers University-Newark; and the smiling village idiot.  Photo graciously provided by Catherine E. Wilson, associate professor and chair of the Department of Public Administration at Villanova University.


The week before last, the Villanova Law Review at the Villanova University Charles Widger School of Law hosted the Norman J. Shachoy Symposium on Fifty Years Under the Freedom of Information Act, 1967-2017.  I was privileged to participate and owe a debt of gratitude to Villanova for extraordinary hospitality, especially Law Review coordinators Jourdan Simko and Valerie Caras (current masthead); faculty coordinator Professor Tuan Samahon, himself an accomplished teacher and scholar in constitutional law and government transparency and accountability; and Arthur J. Kania Dean and Professor of Law Mark C. Alexander.

Persons with a broad range and wealth of experience and perspective on the federal FOIA participated in the symposium, offering a mind-boggling array of insights into the state of our 50-year-old transparency regime and its prospects for reform.  Professor Samahon aptly opened the conference by asking participants to think about how the course of history might have been different had transparency been the rule of the day before 1967, say, at the time of the Bay of Pigs or the Gulf of Tonkin.  What far-reaching impact would there be of transformed American involvement in those events?  The question points to historic mistakes and lives that might have been saved, yes; but also to unknown alternatives and dangers unwittingly averted.


The U.S. FOIA was among the first of its kind in the modern world and ground-breaking in its scope.  Professor Samahon later in the afternoon, asking a question of my own panel, pointed to the startling success of the FOIA, lest we take it for granted: a beacon of transparency and accountability in the world, the operationalization of an essential condition for a successful democracy, and a feature of government that is sorely wanting in so many countries today, with real human suffering as the price of opacity and corruption.

At the same time, program participants seemed in universal agreement:  Our FOIA is showing its age.  More dynamic transparency instruments in foreign and international law—incubated in the so-called “second-generation” constitutional and human rights systems of Western Europe and emerging democracies around the world—have made vast strides in government transparency and accountability, leaving our FOIA looking, to put it mildly, rather tired and worn around the edges.  Speaking a cutting truth, Judicial Watch attorney Michael Bekesha said in an afternoon panel that to really make FOIA work, the current statute, 5 U.S.C. § 552, needs to be “blown up,” and a new law constructed in its place.  My own talk looked to innovations in FOI, or "access to information" (ATI) in Africa for inspiration.

Villanova video-recorded the day-long program, and the Law Review plans a symposium issue with contributions from the panelists, to be published later next year.  So stay tuned for more on this important subject.  Meanwhile, I will paste below the program, to whet the appetite.

The Villanova Law Review Norman J. Shachoy Symposium:
Fifty Years Under the Freedom of Information Act, 1967-2017
Friday, October 20, 2017, 9 a.m. to 4:30 p.m.

Welcome
  • Mark C. Alexander, Arthur J. Kania Dean and Professor of Law, Villanova University Charles Widger School of Law
  • Tuan Samahon, Professor of Law, Villanova University Charles Widger School of Law
Panel 1: The “On the Ground” Operation of FOIA
  • Susan Long, Associate Professor of Managerial Statistics and Director of the TRAC Research Center, Whitman School of Management, Syracuse University
  • Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
  • Moderated by Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
Panel 2: The Press, the Academy, and FOIA
  • David McGraw, Deputy General Counsel, The New York Times
  • Jason Leopold, Senior Investigative Reporter, BuzzFeed News
  • David M. Barrett, Professor of Political Science, Villanova University
  • Moderated by Terry Mutchler, Mutchler Lyons
Panel 3: Congressional Oversight of the Executive Branch
  • Katy Rother, Senior Counsel, Committee on Oversight and Government Reform, U.S. House of Representatives
  • Aram A. Gavoor, Visiting Associate Professor of Law, The George Washington University Law School
  • Moderated by Catherine J. Lanctot, Professor of Law, Villanova University Charles Widger School of Law
Panel 4: Resolving FOIA Disputes
  • Alina Semo, Director, Office of Government Information Services, National Archives and Records Administration
  • Marcia Berman, Assistant Branch Director, Civil Division, Federal Programs Branch, U.S. Department of Justice
  • Michael Bekesha, Attorney, Judicial Watch, Inc.
  • Moderated by Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
Panel 5: State and Global Comparative Perspectives
  • Anamarija Musa, Commissioner of Information, Republic of Croatia
  • Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
  • Richard J. Peltz-Steele, Professor of Law, University of Massachusetts School of Law
  • Moderated by Fran Burns, Professor of Practice, Villanova University

Tuesday, October 24, 2017

Policy proposal threatens academic freedom at University of Arkansas

Watchdogs in my former home state of Arkansas have alerted me to a major proposed change to University of Arkansas Board of Trustees tenure policy that threatens faculty academic freedom and tenure.  I wrote on this subject and presented at an AAUP conference some time ago; see "Penumbral Academic Freedom" at SSRN.  I happen to have just started serving here at UMass Dartmouth on a campus-wide committee studying policy related to faculty privileges and responsibilities.  I plan in time to write more about my experience here at UMD.  Meanwhile, though, what is happening at Arkansas, just one instance amid an alarming national trend, needs wider attention.  Simply put, an attack on academic freedom anywhere is an attack on academic freedom everywhere.

As is widely known both in and outside the academy, this is not a happy time for freedom of expression on the university campus.  (See this New York Times op-ed from yesterday, by University of Oregon President Michael Schill.)  Professor Catherine Ross at GW Law wrote an excellent piece recently for 66:4 Journal of Legal Education on "Assaultive Words and Constitutional Norms," explaining the clash between First Amendment freedom of speech and lately abundant and popular efforts to regulate speech that is normatively objectionable, such as hate speech.  The problem extends to our complicated American relationship with whistleblowers: compare the Obama Administration's "war on whistleblowers" (Guardian) with the later pardoning of Chelsea Manning.

In the academic sphere, the problem has played out in attack on faculty and faculty privileges, such as tenure, that are designed to preserve the university as "the quintessential marketplace of ideas."  The corporatization of the university and the infantilization of faculty have been documented and described, for example by Johns Hopkins Professor Benjamin Ginsberg in his 2013 book, The Fall of the Faculty (Amazon).

My colleague Professor Joshua Silverstein at the University of Arkansas Little Rock Law School wrote an excellent missive to his faculty on the proposed changes to Arkansas board policy.  He explained how the policy changes conflict with established AAUP norms.  Especially problematic is a provision that would allow termination of faculty for "unwillingness to work productively with colleagues."  As Professor Silverstein aptly observes, this is administrator-speak for what the AAUP long ago described and condemned as a "collegiality" requirement.

That provision would allow the termination of a faculty member who ignores instruction to teach the politically correct or anti-intellectual version of a subject in the classroom; who refuses to give passing grades for failing performance, when campus bean counters fear losing the student's tuition dollars; or who objects to the elimination of disciplines such as philosophy and foreign language as the university looks to budget according to revenue potential rather than academic mission.  In the corporatized university, there is no room for faculty governance and less for freedom of thought.  Faculty are expected to toe the line and make the widgets.  That's a frightening vision of the university, especially when one contemplates the impact on young adults of modeling automatous obedience in a purported democracy.

Professor Silverstein has given me permission to excerpt his missive, below.  His redline-and-comment version of the board policy I have parked here.  I note that Silverstein had to create the redline version himself; only a clean revision was distributed.  The redline version, he warns, might have mistakes that are artifacts of conversion from PDF.  The clean revision proposal is here.  The current rule can be found here.  Silverstein disclaims that he only received the proposal last weekend, so his review is not comprehensive.  Also, these comments pertain only to changes to the board policy on tenure.  Other proposed changes would affect employment periods and distinguished professorships.

The academy must stand together to repel attacks on tenure.  And we in the legal academy have an especial responsibility to heed the call.

--


Colleagues:

Last week, the faculty senate received proposed changes to the UA System rules regarding tenure (Board of Trustees Policy 405.1), employment periods (Policy 405.4), and university and distinguished professorships (Policy 470.1).   This email concerns the proposed changes to policy 405.1.  As the subject of my email indicates, I believe that the proposed changes are a grave threat to tenure and academic freedom within the entire UA System.  Most importantly, the revisions dramatically expand the grounds justifying termination for cause.  They do so by (1) effectively establishing collegiality as a basis for termination, and (2) permitting dismissal after a single unsatisfactory rating in an annual review.  In addition, the revisions critically weaken the procedural protections available at university committee hearings regarding terminations.  If these changes are adopted, the damage to the University of Arkansas will be wide-ranging and likely permanent.  It is thus imperative that we speak out about the threat.

*  *  *


1.  The University may not retroactively alter tenure rights.

In my opinion, the proposed changes to 405.1 cannot retroactively alter the rights granted under existing tenure contracts.  Well-established principles of contract law and constitutional law firmly support this conclusion.  Thus, the changes to 405.1, if adopted, will only apply to faculty not yet tenured.  However, I have not conducted exhaustive legal research on this point.  In addition, while nothing in the proposal suggests that the university believes it can—or intends to—apply the changes retroactively, an express admission on these points is the only way we can be sure of the thinking of the Board of Trustees and the rest of the central administration.

Even if the changes are applied solely in a prospective manner, that only modestly reduces the damage that the new rules will cause.  For example, all new hires will be subject to the revised standards.  That is a serious problem.  The changes will make it more difficult to hire the best entry-level and lateral faculty.  And those who are hired will possess weakened tenure protections and more limited academic freedom, both of which will result in numerous harms to teaching, research, and service within the UA system.

2.  The proposal dramatically expands the scope of what constitutes “cause” for purposes of terminating faculty

a.  Introduction.

Let me start by highlighting the critical textual changes to the definition of “cause.”  The current definition is set forth in section I of Policy 405.1 (which is on page 2 of the policy):

“Cause” is defined as conduct which demonstrates that the faculty member lacks the ability or willingness to perform his or her duties or to fulfill his or her responsibilities to the University; examples of such conduct include (but are not limited to) incompetence, neglect of duty, intellectual dishonesty, and moral turpitude.

Compare that to the revised definition, set out in section I of the proposal on pages 1-2 (and on pages 1-2 of my redline):

Cause - Cause is defined as conduct that demonstrates the faculty member lacks the willingness or ability to perform duties or responsibilities to the University. A faculty member may be disciplined, or dismissed, for cause on grounds including but not limited to unsatisfactory performance or (1) professional dishonesty or plagiarism; (2) discrimination, including harassment or retaliation, prohibited by law or university policy; (3) unethical conduct related to fitness to engage in teaching, research, service/outreach and/or administration, or otherwise related to the faculty member’s employment or public employment; (4) misuse of appointment or authority to exploit others; (5) theft or intentional misuse of property; (6) incompetence, job abandonment, pattern of disruptive conduct or unwillingness to work productively with colleagues, or refusal to perform reasonable duties; (7) threats or acts of violence or retaliatory conduct; or (8) violation of University policy, or state or federal law, substantially related to performance of faculty responsibilities or fitness to serve the University

I have highlighted two pieces of the revised definition.  First, I highlighted the addition of “unsatisfactory performance” near the beginning of the definition.  Second, I highlighted certain language in item 6.  Section 2.b. of this email addresses item 6.  Section 2.c. of this email addresses the insertion of “unsatisfactory performance.”  There is additional language in the proposal relating to the two pieces of the definition that I highlighted.  That language is discussed in the sections below corresponding to the highlighted language.

b.  Establishing collegiality as a basis for termination dramatically reduces tenure protections and academic freedom.

The language I highlighted in item 6 is very dangerous.  “Pattern of disruptive conduct” is a deeply subjective standard.  “Unwillingness to work productively with colleagues” is worse.  These standards create a serious potential for abuse.  It takes little imagination to see how the standards could be employed to stifle academic freedom by dismissing or otherwise punishing tenured faculty on the pretextual grounds that they are “disruptive” and/or “uncollegial.”  Note that including a collegiality requirement in tenure standards violates AAUP principles.  This change would thus move the UA System out of compliance with the AAUP.  See On Collegiality as a Criterion for Faculty Evaluation at page 1 (and throughout)), available here.

The importance of the changes in item (6) is highlighted by the fact that the “work productively” collegiality standard is repeated in the section of 405.1 that concerns academic freedom.  The proposal amends section IV.A.14.c, on page 10 by inserting the following language: “Faculty are expected to work productively with colleagues in carrying out the mission of the University.”  By adding this to the academic freedom section, it is clear that the drafters intend the language to circumscribe the scope of academic freedom everywhere within the University of Arkansas.

c.  The proposal permits termination after a single unsatisfactory rating in an annual review; this also dramatically reduces tenure protection and academic freedom.

Under the current standard, termination for performance issues may result only from “incompetence,” “neglect of duty,” or the like.  Under the proposed standard, a mere finding of “unsatisfactory performance” in a single annual review is sufficient grounds to warrant termination.  That is a profound change.

To elaborate, the proposal inserts new standards regarding annual reviews in section V.A.9.  Here is the pertinent language:

Any campus procedures regarding post-tenure review shall not allow greater than one academic year, with active cooperation from the faculty member, for an overall unsatisfactory performance rating to be substantially remedied prior to a recommendation of dismissal on the basis of unsatisfactory performance. In other words, if a faculty member’s overall performance is evaluated as unsatisfactory for an academic year, any improvement plans or other remedial measures are expected to result in a satisfactory evaluation by the end of the following academic year; if not, the faculty member may be issued a notice of dismissal on twelve months’ notice as provided for in this policy. Again, such period of time for remediation assumes the active cooperation and engagement of the faculty member; otherwise, a shortened timeframe may be utilized.

On the surface, this provision appears to provide that termination is only permissible after two unsatisfactory ratings.  In the first yellow block, the provision states that “any improvement plans or other remedial measures are expected to result in a satisfactory evaluation by the end of the following academic year; if not, the faculty member may be issued a notice of dismissal . . .”  (Emphasis added.)  That suggests that two unsatisfactory ratings are required.  But now consider the last sentence of the language I quoted, also highlighted in yellow: “Again, such period of time for remediation assumes the active cooperation and engagement of the faculty member; otherwise, a shortened timeframe may be utilized.”  (Emphasis added.)  This means that if the university, in its subjective judgment, determines that a person is not being sufficiently “cooperative” or “engaged” in the remediation plan, termination is possible well before the end of the first academic year after the unsatisfactory rating.  In short, a single unsatisfactory rating, combined with a judgment of insufficient “cooperation” or “engagement,” can result in termination. 

That is a dramatic change from the existing rule.  To repeat, the current standard requires “incompetence,” “neglect of duty,” or something comparable.  Those words denote performance that is considerably worse than suggested by a mere finding of “unsatisfactory.”  Indeed, “incompetence” and “neglect of duty” are much worse than multiple findings of unsatisfactory performance.

This change also violates AAUP standards.  For example, in a report regarding Greenville College in Illinois, the AAUP said this:

As the writers of the 1958 Statement on Procedural Standards had assumed, most institutions have indeed developed their own standards of what constitutes adequate cause for dismissal.  They most commonly tend to be “incompetence,” “professional misconduct,” “gross neglect,” and the like.  In comparison, Greenville’s standard of “unsatisfactory service” not only is nebulous and subjective, but also sets too low a bar for adequate protection of tenure and academic freedom . . . .

Report, Academic Freedom and Tenure: Greenville College (Illinois) at page 86, available here.

Likewise, the AAUP’s formal statement on post-tenure review explains that the appropriate standard for “cause” is “incompetence, malfeasance, or failure to perform . . . duties.”  Post-tenure Review: An AAUP Response at page 230, available here.  The report proceeds to explain that if “the standard of dismissal is shifted from ‘incompetence’ to ‘unsatisfactory performance,’ . . . then tenured faculty must recurrently ‘satisfy’ administrative officers rather than the basic standards of their profession,” which fatally undermines academic freedom.  See id.

As these AAUP documents make clear, the proposed change of the cause standard from “incompetence” and “neglect of duty” to mere “unsatisfactory” performance is fundamentally inconsistent with core principles of academic freedom.  And that would be true even if the proposal required multiple findings of unsatisfactory performance.  As I explained, however, a single finding of unsatisfactory performance can justify termination under the proposal (when combined with a finding that the faculty member is not sufficiently cooperative or engaged in remediation of the unsatisfactory performance).

3.  The proposal critically weakens procedural protections.

Section IV.C. of 405.1 concerns the procedures for dismissing a tenured or tenure-track faculty member.  Part of the termination process is a hearing before an impartial committee.  The proposal revises section IV.C.5., on page 14, to strip away the committee’s ability to grant procedural protections equivalent to those afforded in a court of law.  See comment j7 on page 12 of the redline, which explains this point in more detail.

* * *

Note that the redline contains a few other substantive comments.

As I said, this proposal is a striking attack on academic freedom and tenure.  It is thus imperative that we make our voices heard.

Josh
Joshua M. Silverstein
Professor of Law
University of Arkansas at Little Rock
William H. Bowen School of Law
1201 McMath Ave.
Little Rock, AR 72202-5142

Monday, October 16, 2017

Decedent's reps fight Yahoo! for email access, beat federal preemption argument in state high court

The Massachusetts Supreme Judicial Court has rendered a thought-provoking judgment about postmortem access to a decedent's Yahoo! e-mail account.  The case is Ajemian v. Yahoo!, Inc., No. SJC-12237, Oct. 16, 2017, per Justice Lenk.  The SJC nabbed the case sua sponte from Mass. App.  The case will be available soon from Mass.gov new slip opinions.

Yahoo! denied access to the personal representatives of the decedent's estate on two grounds: (1) that access was prohibited by the preemptive, federal Stored Communications Act (SCA) (1986), essentially a sectoral privacy statute, and (2) that the representatives' common law property interest in digital assets was superseded by Yahoo! terms of service (ToS).

The trial court ruled in favor of Yahoo! on the SCA grounds and opined only indeterminately on the ToS argument.  The SJC reversed and remanded.  The Court employed a presumption against implied preemption to find the representatives outside the "lawful consent" terms of statutory exemption in the SCA, which would require actual owner consent.  The SCA therefore provided no barrier to access under state law on these facts. This is an important precedent in state construction of federal law to limit the reach of the SCA.

Tantalizingly on the ToS front, the trial court held that it could not opine definitively on Yahoo!'s position because of unresolved questions about the formation and enforceability of the ToS as contract.  The SJC reiterated that the trial judge had not established whether a "meeting of the minds" had occurred as purported prerequisite to contract.  That's a compelling observation in our world, awash as it is with click-wrap adhesion agreements being held enforceable by the courts without serious scrutiny.  "Meeting of the minds," however much a staple of 1L Contracts, has been pretty much read out of the analysis in today's boilerplate world.

The case will be one to watch if it generates another appeal, but I'll be surprised if on these facts, Yahoo! goes to the mat if that means risking the ToS on the record.