I pledge not to accept NRA donations: Gun control and denial of opportunity to wound and kill

Let the record reflect that I’m an occasional NRA member and supporter of the Second Amendment—not for hunting, and not just for personal security, but mostly for the real need to be able to overthrow the government if—when—it comes to that.

 

But the NRA should be at the table talking about gun control.  The simple reality of preventing violent crime is that denying opportunity to would-be offenders is the only thing that works well.

That was my over-simplistic take-away from Tom Gash’s The Truth About Why People Do Bad Things (2016) (Amazon), which I just read coincidentally with Parkland.  It’s a fabulous book even if you do not have much interest in criminal law and policy, which I do not.  It’s an important book for anyone just to be an informed voter.  Tom Gash is a senior fellow at the Institute for Government in the U.K.  Hat tip to my uncle in London for putting me on to it. 

Gash dispels 11 myths about crime prevention.  Those chapters are well worth reading, so we don’t find ourselves recycling foolish misconceptions as we make crime policy.  Indeed, to read Gash’s account, the cycle of crime prevention policy over decades seems like an exercise in Groundhog Day.  In the big picture, there are two predominant ways of thinking about crime, and they’re both wrong.  One view says criminals are innately bad actors, so we need to create powerful disincentives, such as three-strikes laws, to make them do the right thing.  The other view says that crime is a socio-economic problem we can fix with education and jobs.  Wrong and wrong.  Not wholly wrong, but too wrong for either redressive strategy to be effective.

Needless to say, crime is more complicated than one worldview, and there is no one panacea.  However, there is one thing that works a lot of the time: denial of opportunity.  A lot of crime happens in the moment and is not wholly irrational.  A modest deterrent gives a person’s better angels a chance to be heard.  Something as simple as a bike lock makes a potential thief not become one.

So we come to guns.  As the Parkland teens and parents have said, access to “weapons of war” is just too easy.  A regulation as modest as a waiting period can mean denial of opportunity for someone who is emotionally imbalanced, whether in the moment or by pathology.

I support the Second Amendment, and I’m wary of bans on weapons we would need to overthrow a tyrannical government.  I support the First and Fourth Amendments too, but I understand parade permitting and search incident to arrest.  I would like to see the NRA, which I respect as a key protector of civil liberties, as a responsible participant in the discussion about reasonable regulation, rather than an increasingly alienated fall guy.

Was academic freedom ever really a thing? 'Fluff the paper'!

Almost 10 years ago, I was quoted in Inside Higher Ed: "When I started teaching 10 years ago, I thought universities were the quintessential market place of ideas. I was so naïve, and so, so wrong....  It's not an open market place of ideas -- I hope we can get back to that notion because our society desperately needs places where we can have truly free discussion. I just can't say I see that in the American university today."

10+10.  I've been teaching for 20 years now.

Most of my career, I've worked for two academic employers.  Both at one time had vibrant electronic mail listservs for faculty to be able to discuss, debate, and engage.

At my former workplace, I once made a posting that was critical of my school, but suggested, based on my experiences then visiting off campus at another university, some ideas that we might adopt to up our game.  My dean at that time lambasted me for using the forum to be critical rather than to praise and celebrate the institution.  That was the end of that listserv as a place for serious engagement.  Afterward, it became all about peer-to-peer "Congratulations to Professor So-and-So, Who Achieved This," followed by rousing rounds of Reply-All, "Congratulations, So-and-So!"  (See more recent news.)

At my present workplace, a dialog was recently had about the disused campus listserv.  Online and offline, faculty reminisced about when the forum was a place for vibrant engagement on hot-button issues.  Some speculated about why it no longer is.  Fear of administrative reprisal in the enforcement of vague conduct policy was cited, upon a spate of reported "investigations."  One faculty member reported that the basis for her having been found in violation of policy was that a complainant felt offended.  That accords with my experience.

In recent weeks, the following dialog has unfolded on the campus listserv.  (I emphasize that what is said in this forum is public record in the Commonwealth of Massachusetts, and I have a First Amendment right to republish it.)  I honestly don't know whether this is serious or tongue in cheek.  I don't know whether this is wicked social commentary or innocent chatter.  I do know that I'm afraid to ask.  I really hope it's commentary, because I like it.  I appreciate the earnestness and wit of the responses.  Seriously, I have smiled reading these postings.  I'm just not sure why.  I would hate to conclude that I like this dialog because my mind has become as dull as the subject.

When I started teaching 20 years ago, I thought universities were the quintessential marketplace of ideas. I was so naïve, and so, so wrong.  It's not an open marketplace of ideas.  Maybe it never was.

So here's the latest in scintillating academic engagement, now university approved!  Fluff the paper!


--

Wed., 2/7, 2:23 p.m.

If faculty and staff (and work study students) logged the hours we spend dealing with paper jams... I'm sure faculty have all had the experience of trying to print out the rubric for an assignment 15 minutes before class time when the machine jams for the 17th time that week.... 

https://www.newyorker.com/magazine/2018/02/12/why-paper-jams-persist 

--

Wed., 2/7, 3:58 p.m.

That is interesting, I never knew these copy machines were so complicated.  Still,  as I saw Elon Musk's SpaceX manage a perfect landing of the two heavy rocket boosters yesterday, I must conclude that it's not rocket science! 

--

Thu., 2/8, 9:22 p.m. 

I still think we all need a PhD in Copier Technology to operate them. 

Unfortunately, I have already risen to my level of incompetence. 

-- 

Wed., 2/14, 9:33 p.m. 

As someone with the experience of a PhD in copier technology (30+ years), I can tell you 2 secrets to keeping paper jams to a minimum: 

1) do not unwrap paper or preferably even take the wrapped paper out of the delivery box until needed (i.e. stacking on a shelf causes the paper to absorb moisture, which causes the jams) and

2) fluff the paper (place the ream in the tray and rifle/fan it) every time you put in a new ream. 

Also, I have always found Hammermill paper jams less frequently than other cheaper papers (the time and material lost isn't worth the savings!)

Hope this helps! 

'False claims of love': Mass. App. speaks from the heart for Valentine's Day

Just in time for Valentine's Day, the Massachusetts Court of Appeals rejected a divorcee's lawsuit for "false claims of love."

The plaintiff's eight claims were aptly characterized by the court as sounding in fraud, battery (i.e., contact upon improperly procured consent), infliction of emotional distress, and unjust enrichment.  All of these claims turned on misleading inducement to marry as a common, operative allegation.

Massachusetts by statute "abolished the common law actions for alienation of affection," "reflect[ing] the Legislature's public policy decision to no longer consider judicial remedy appropriate for what is only 'an ordinary broken heart.'"  Christopher Robinette wrote succinctly about the "heart balm torts"—alienation of affections, criminal conversation, seduction, and breach of promise to marry—in November at Tortsprof Blog.  Reading between the lines of the law, the court explained that legislators meant to preclude any cause of action that would require "'explor[ing] the minds of' consenting partners" (quoting precedent).

This case was not about failure to marry, but about marriage under allegedly false pretenses.  Same difference, the court held, with respect to claims of fraud or misrepresentation: plaintiff's "artful pleadings fail to hide the fact that these claims, based on events that occurred prior to the marriage, are precluded ...."  The same result controlled battery, as the consent analysis plainly would defy the inferred legislative intent.

As to IIED, the plaintiff could not meet the threshold of "extreme and outrageous," neither through allegation of an adulterous affair, even if calculated to inflict emotional injury, nor through failure to disclose "concealment of past sexual or romantic history."  Massachusetts courts at least in theory recognize a cause of action for negligent infliction of emotional distress (NIED)--the truly pure case of it is far rarer than recitation of the theory--but found the record "bereft of physical harm manifested by objective symptomatology."  On both points, one must recall Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998), per the Hon. Susan Weber Wright.  This case also well exemplifies why NIED is not sound doctrine, a point the Supreme Judicial Court might ought revisit one day.

On unjust enrichment and related theories, the court concluded that any unjustness was predicated on the earlier rejected fraud, and otherwise, the plaintiff was in no way of feeble mind.

The court summed up: "[N]ot all human actions in the context of the dissolution of a marriage have an avenue for legal recourse, no matter how much anger, sorrow, or anxiety they cause." Broadened to all affairs of the heart, the conclusion well restates essential tort policy, lest we become the caricature of the litigious society.

The case is Shea v. Cameron, No. 16-P-1479 (Mass. Ct. App. Feb. 9, 2018), per Agnes, Sacks, and Lemire, JJ.

UMass Law SALDF hosts speaker to explain service animals and ADA compliance

The UMass Law chapters of the Student Animal Legal Defense Fund (SALDF) and the Asian Pacific Law Students Associations (APALSA) co-hosted speakers including Evan C. Bjorklund, general counsel of the Massachusetts Office on Disability (MOD), in late January for a public event about service dogs and public accommodation laws.  Bjorklund's talk was recorded and produced for air by DCTV educational access.  View the video at DCTV here.

Evan Bjorklund on DCTV: Service Animals and ADA Compliance

UMass Law APALSA is led by Mali Lim, who by day is human services coordinator for community education and diversity for the City of New Bedford, Massachusetts.  UMass Law SALDF officers are Kayla Venckauskas, president; Barnaby McLaughlin, vice president; Kerina Silva, treasurer; and Kseniya Ruzanova, secretary.  Venckauskas was just appointed 2018-2019 editor in chief of the UMass Law Review and McLaughlin 2018-2019 I.T. editor.  Ruzanova is a member of Team 1L Torts.  Yours truly serves as faculty co-adviser for SALDF.

Brief argues public interest in social science research, FOI, while managing privacy risk

Representing the National Association of Scholars, UCLA Professor Eugene Volokh, UALR Professor Robert Steinbuch, and I filed an amicus brief in a California appellate case in which we argue the public interest in social science research, especially freedom of information in the area of legal education and admission to the bar, while managing risks to personal privacy.  Below is the introduction.  A longer excerpt appears here on TaxProf Blog, along with a link to the full brief in PDF.  My thanks to two formidable writing partners and a dedicated client.

Introduction

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data.

Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research of the very kind proposed by Appellants Sander and The First Amendment Coalition represents standard, indeed commonplace, research practice furthering the public interest, while employing established methodologies that minimize the risk to privacy.

#MeToo much?

On Boston Public Radio yesterday, the usually staunchly civil rights-sensitive Jim Braude, a former union attorney, and media personality I admire greatly, said he's not so worried about due process where #MeToo condemnations are concerned.  Women have suffered oppressive exploitation for so long, historically, he reasoned, that if an accused suffers an inequity here or there today, it's a sacrifice he (or she) should be willing to make in the greater arc of justice.

I've been really upset about Braude's comment.  I haven't been able to let it go.   I've been off the blog a while, while fighting toward two Jan. 31 deadlines on different projects.  But I'm jumping on here to say my piece.

In fairness, I've taken Braude out of context.  He and co-host Margery Eagan were recalling an earlier discussion about the Aziz Ansari story.  Here's the initial essay at Babe.net that stirred the pot. It's concerning; I don't mean to take away from that.  But from Damon Linker at The New Republic, here's a good opinion in The Week that explains the longer view.  I'm sure Braude doesn't favor criminal prosecution, or even civil liability, without due process.  But there are painful and meaningful consequences that fall short of those penalties, and consequences may be warranted.  More than social and professional alienation is surely called for in countless cases, cited to Time by Linker.  From a legal standpoint, these cases sorely complicate the usual innocent-until-proven-guilty imperative because of our culture's tragic record of tolerating discrimination, exploitation, and silence, and now rapid evolution of norms.  Braude fairly raises the difficult question, if not formal due process, then what?

It especially raised my eyebrows to see Margaret Atwood on the "concerned" list in Linker's column.  Here's Atwood's piece in The Globe and Mail. Atwood told the story of a fired professor at the University of British Columbia.  Her recitation included this:

[A]fter an inquiry by a judge that went on for months, with multiple witnesses and interviews, the judge said there had been no sexual assault, according to a statement released by Mr. Galloway through his lawyer. The employee got fired anyway.

It happens that at this very moment, I have charges of gender discriminatory conduct pending against me--have had, since April 2017.  I've been admonished not to talk about it, and I will not say much.  What is salient, what #MeToo and Atwood's and Linker's columns compel me to report, is that I've been told that there is no evidence to support the allegations, but I have been recommended for punishment anyway.  That was months ago, and I still await my sentencing.

In my career, I have been falsely accused of racism, falsely accused of gender discrimination, and falsely accused of other serious charges.   I have suffered real loss and real hurt as a result.  So have my family and friends.

My question for Jim Braude and anyone who would forego due process for an accused: Will you step down from your career, give up your livelihood and support for your family, upon a false allegation, because that's just a sacrifice you're willing to make for the greater arc of justice?  If I lose my job and cannot keep my daughter in college, pursuing a career in which women have been and still are marginalized, is that a worthwhile sacrifice for the greater good for gender equality?  Am I being selfish?

Pai FCC net neutrality policy steers US wrong way

Today a political cartoon from my brother, Spencer Peltz, in AP Gov at Calvert Hall, where he is student body president.

Probably needless to say, I agree with the sentiment wholeheartedly.  India's Telecom Regulatory Authority is headed wisely in the opposite direction.  Read more at Global Net Neutrality Coalition.  Tiered access, a.k.a. internet censorship, is bad for social liberals and economic conservatives.  The only winner under the Pai FCC plan is corporate oligarchy, and that's not free-market capitalism.  Oh, there're other winners, too: people and commercial enterprise every else in the world, India included.  Guess whom that leaves as losers?

Fourth Amendment privacy case, set for oral argument Nov. 29, touches on US-EU data protection divide

I've published a short preview of Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016), cert. granted, No. 16-402 (U.S. June 5, 2017) (SCOTUSblog), a Stored Communications Act, 18 U.S.C. § 2703(d), set for oral argument in the U.S. Supreme Court on Wednesday, November 29.  Here's an excerpt; link below to the full article and the ABA publication in which it appears.

U.S. Supreme Court accepts cell phone privacy case with transnational implications

A privacy case headed to the U.S. Supreme Court will give justices an opportunity to examine “the third-party doctrine” in U.S. constitutional law. The doctrine manifests a central feature of American privacy policy, marking a divide that has flummoxed transnational data transfer negotiators.

*  *  *

The urgent problem on the transnational scene is that the secrecy paradigm is incompatible with emerging global privacy norms. In EU data protection, for example, privacy follows data downstream. A person can divulge information with strings attached, and the strings are enforceable against subsequent recipients, such as Internet retailers. Even in public places, a data collector, such as a surveillance camera owner, has affirmative obligations to captured subjects. This incompatibility goes a long way to explain the incongruence of European apoplexy and American nonchalance in reaction to global surveillance by the U.S. National Security Agency.

*  *  *

However suspenseful, Carpenter proffers bad facts to kill the third-party doctrine outright. As the Sixth Circuit observed, ordinary people know that cell phones communicate with nearby towers, and their location data are not as damningly precise as GPS. The privacy intrusion was therefore modest, and statute afforded some safeguard. What will be interesting to see in Carpenter is whether more justices lend their voices to the Alito or Sotomayor position, and whether the replacement of Justice Scalia with Justice Gorsuch unsettles the Court’s fealty to originalism.

Read the article at pp. 5-6 of the fall 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the Section of International Law of the American Bar Association, available here in PDF. 

Mass. SJC remands internet jurisdiction, defamation case

The Massachusetts Supreme Judicial Court (SJC) last week remanded an internet jurisdiction case because the lower court jumped to constitutional due process arguments without first applying the state long-arm jurisdiction statute.  The case, replete with fun Internet trade names, highlights the limits of Massachusetts long-arm jurisdiction relative to the global growth in jurisdictional reach in online commerce.

SCVNGR, Inc., doing business as "LevelUp," is a Delaware-incorporated, Boston-headquartered tech company that works with customers through an app to promote participating restaurants with deals and a special payment system.  Punchh is a Delaware-incorporated, California-headquartered company with a similar business model.  Punchh works with customers in Massachusetts and with restaurants with Massachusetts locations, but Punchh denies any physical tie to Massachusetts.

At one time, LevelUp and Punchh entered into an agreement to work together.  But according to LevelUp, Punchh then bad-mouthed LevelUp to LevelUp clients.  LevelUp terminated their agreement, but the allegations state, the bad-mouthing didn't stop.  LevelUp sued in Massachusetts superior court on theories including defamation, trade defamation, tortious interference, and statutory unfair competition.  Punchh disputed personal jurisdiction.

The trial court dismissed for want of personal jurisdiction on federal constitutional due process grounds.  The trial court declined to apply the state long-arm statute because, the court explained, the parties had only argued due process.  LevelUp appealed, and the SJC transferred the case from the appeals court sua sponte.  Notwithstanding the trial court's dispositive conclusion on due process, the SJC opined, it was reversible error not to analyze the state long-arm law first.  That is to say, it was reversible error not to have observed the doctrine of constitutional avoidance.

The Massachusetts long-arm statute is not the typical sort that U.S. law students read about in civil procedure, defining state personal jurisdiction as maximally co-extensive with the limits of constitutional due process.  Rather, Massachusetts constrains long-arm jurisdiction to eight scenarios:

• (a) transacting any business in this commonwealth;
• (b) contracting to supply services or things in this commonwealth;
• (c) causing tortious injury by an act or omission in this commonwealth;
• (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;
• (e) having an interest in, using or possessing real property in this commonwealth;
• (f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;
• (g) maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim; or
• (h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, [in certain modification or enforcement proceedings].

Certainly the statute affords plenty of room to argue still over the bounds of due process.  But the terms of a statute may be subject to limiting construction.

The SJC declined to hint at the appropriate outcome under the statute, bemoaning an incomplete record.  However, the Court observed that the first four provisions of the statute, paragraphs (a) to (d), might be in play.  In a footnote, the Court recalled Calder v. Jones, 465 U.S. 783 (1984) (Justia), in which the U.S. Supreme Court allowed California jurisdiction over a non-resident defamation defendant because the defendant was alleged to have calculated its libel to cause injury in California.  As the SJC moreover observed, the U.S. Supreme Court later limited Calder in Walden v. Fiore, 134 S. Ct. 1115 (2014) (Justia), finding "minimum contacts" wanting when a non-resident's "allegedly unlawful seizure of money elsewhere caused harm to plaintiffs living in Nevada."

The Calder-Walden dichotomy, played out in a defamation context such as SCVNGR v. Punchh, serves as reminder that the United States has rather a dearth of case law in the area of long-arm Internet jurisdiction.  After the earth-rattling assertion of jurisdiction by the High Court of Australia in Dow Jones v. Gutnick in 2002, observers such as me should be forgiven for expecting that we would have moved the ball forward a good bit more in 15 years.  Internet jurisdiction remains a turbulent battlefield in lower domestic courts both here and around the world.

The case is SCVNGR, Inc. v. Punchh, Inc., No. SJC-12297 (Mass. Nov. 8, 2017).

[UPDATE: The Superior Court denied jurisdiction under the long-arm statute in September 2018.  See coverage at Massachusetts Lawyers Weekly (MLW), by Eric T. Berkman (subscription required) (quoting yours truly).  Image at right from MLW.] 

Error that led to Texas mass murder recalls recent tort claim against police after Massachusetts shooting

The Air Force yesterday admitted that it failed to pass on information about the violent record of the Texas church shooter that might have stopped him from having ready access to firearms (WaPo).  Good on the USAF, by the way, for coming clean quickly, however tragic and futile the admission is now for the 26 people who lost their lives.  That angle of the Texas story caused me to pull back up a Massachusetts Appeals Court decision that last week I filed away as "unremarkable." 

After an escalating argument in Somerville, Mass., in 2012, Santano Dessin shot Carlos Andrade "in the neck, shattering Andrade's spine and leaving him paralyzed from the neck down," the court recounted (Boston.com).  It turned out that Dessin possessed three firearms, including the one he used to shoot Andrade, and he should not have had them because of a prior juvenile delinquency adjudication.  The Somerville Police Department at one point had confiscated the three firearms from Dessin, but then returned them erroneously.  Despite subsequent notice to the department by public safety authorities and the Superior Court that Dessin remained disqualified from possessing firearms, police failed to re-confiscate them.  Andrade and family sued police for negligence under the Massachusetts Tort Claims Act (MTCA).

The court rejected liability under the MTCA § 10(e), which, typically of state sovereign immunity laws, disallows tort claims predicated on "any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization."  The court reasoned, "A local police department's duties to receive, store, and dispose of weapons when a person's firearms license is revoked or denied 'are central to the functions that are immunized from liability by § 10(e)'" and "'cannot be parsed from the remainder of the process'" (quoting Smith v. Registrar, 66 Mass. App. Ct. 31, 33 (2006)).

Guns and Somerville, Mass., share a revolutionary history.

However routine and appropriate a construction of statute the Mass. App. decision is, it points up a policy problem that played out with tragic consequences in Texas.  Gun control opponents including the NRA routinely contend that gun control proponents' job-one should be enforcing the laws that are already on the books, rather than lobbying for new ones.  On the enforcement question, we should all be on the same page.

The merits of our unusual cultural value in gun ownership, as expressed in the Second Amendment, and the appropriate scope of reasonable regulation, may be debated.  Nevertheless, at present, we hold gun ownership as a presumptive, fundamental right.  At the same time, declining to regulate gun ownership on the front end of the transaction means that, on the back end, we must vigorously enforce properly adjudicated deprivations of the right.  Public safety--the competing fundamental right to life--requires no less.

In the area of freedom of expression, we vigorously, presumptively, and even prophylactically protect free speech.  But after proper adjudication, we allow proscription of obscenity, criminal punishment of conspiracy, and enforcement of defamation liability.  Perhaps we ought exercise greater care with prophylactic protection of Second Amendment rights, because the potential consequences of error are grave.  But that wasn't the problem in Massachusetts or Texas, where the risk of error was real and known.

The case is Andrade v. City of Somerville, No. 16-P-1407 (Mass. App. Ct. Oct. 30, 2017).