Thursday, January 31, 2019

Research examines accountability through journalism and right to information in India

I've published a research article (available on SSRN), "Accountability in the Private Sector: African Ambition for Right to Information in India," in the latest volume (25:3) of the Panjab University Research Journal Social Sciences.  Here is the abstract:

The right to information (RTI) has come to recognition as a human right in international law. Conventionally, RTI is a means for a person to demand information from a public body. RTI has proven especially potent in the hands of journalists, who seek information on behalf of the electorate to hold public institutions accountable. But in the recent decades in which RTI has attained human rights stature, power in society has shifted in substantial measure from public to private sector. Journalistic inquiry is frustrated by the inapplicability of access laws to private bodies. In India, direct access to the private sector through RTI law was considered and rejected in the 1990s; however, the 2005 RTI Act allows a generous measure of access to non-governmental actors with public ties. A legal movement has been gaining steam in Africa to push past the public-private divide and recognise the importance of RTI to protect human rights regardless of the public or private character of the respondent. Different approaches are emerging with respect to journalist access in the African model. Amid trending privatisation and burgeoning private power, the time might be coming for India to reconsider the road not taken.

The Research Journal Social Sciences is a peer-reviewed publication of Panjab University in union-administered Chandigarh, India.  Panjab is a public university on 550 acres, enrolling 17,000 students in 78 departments and 15 centers for teaching and research, including a law school.  More than 250,000 more students are enrolled in 198 constituent and affiliated colleges and centers throughout the region.  Founded in 1882, Panjab was split in the 1947 partition of India from the University of Punjab, now in Pakistan.

Dr. Verma
This issue of the journal is dedicated to development and mass communication.  I was fortunate to be invited to contribute by the special editor of the issue, Dr. Manish Verma (LinkedIn), who serves as director of international affairs and director of the School of Media at Amity University Jaipur in Rajasthan.  Dr. Verma is a Ph.D. graduate of Panjab University and an alumnus of the Executive Program in Management and Leadership in Education at Harvard University.  He's also a top-shelf colleague.

Tuesday, January 29, 2019

Research proposes U.S. FOIA reform upon South African example

I've published in the Villanova Law Review, "Access to Information in the Private Sector: African Inspiration for U.S. FOIA Reform" (available from SSRN).  The article appears as part of a symposium edition of the law review (63:5) on FOIA reform.  The special edition commemorates 50 years of the FOIA, which was passed by Congress in 1966 and went into effect in 1967.  I was privileged to present the piece at the Villanova University Charles Widger School of Law in 2017, upon generous invitation to the Norman J. Shachoy Symposium.  Here is the foreword (footnotes omitted):
The Freedom of Information Act of 1966 (FOIA) was a landmark global example of transparency, or access to information (ATI), to ensure democratically accountable governance.  Government had grown in the twentieth century, especially in the new administrative state, and FOIA re-balanced the distribution of power between people and public authority.  Today in the twenty-first century, much power in American society has migrated from the public sector to the private sector, specifically into the hands of corporations.  Even insofar as it works well, FOIA operates only against the conventional state by enabling an individual’s capacity to realize civil and political rights.  FOIA simply was not designed to enable the attainment of human necessities such as education and housing, much less environmental protection and healthcare, especially when the greatest threat to those rights is not government deprivation, but the commercial marketplace.

ATI in Africa is a different story.  Three decades after FOIA, planted among the unprecedented ambitions of the South African constitution was a right to ATI.   And within that right lay an extraordinary new provision.  As guaranteed by the South African constitution and enabling law, a person may request records from a nongovernmental respondent, a private body, if the person can show that the records are “required for the exercise or protection of any rights.”   In other words, South African ATI law jettisoned the historic barrier between public and private sectors.  South African lawmakers were informed by the experience of apartheid, in which the private sector’s complicity had been a vital and brutal partner in state-sanctioned human rights abuse.
Blossoming beyond even the visioning of an apartheid remedy, ATI in the private sector has been construed by the courts in a wide range of applications, from intrafamilial business disputes to environmental conservation.  South African courts have struggled to define “required” and “rights” in applying the ATI law.  But South Africa has demonstrated that ATI in the private sector can work.  The public-private division justifies a change in the terms of access, but not an absolute barrier.  In the last five years, the South African approach has been reiterated in the domestic law of at least five other African countries and in pan-African human rights instruments meant to inspire more domestic adoptions.

In this article, I suggest that the African example inspire U.S. FOIA reform.  In its time, FOIA shone a light into the darkest corners of American politics.  Now America deserves a new approach to restore power to the people in the age of the corporation.

Monday, January 28, 2019

Who Dat lawsuit for 'negligence,' 'emotional anguish' is really a desperate mandamus plea

Controverted play in Rams vs. Saints conference championship game
(NFL image via GMA and Daily Show: fair use).
Full disclosure: I'm not a football (NFL) fan—rather a football (association) follower—but if I were, I would have a soft spot for the Saints, because I love New Orleans and married into a proud Louisiana family.

So it caught my attention when Roy Wood Jr. on The Daily Show with Trevor Noah (Comedy Central, YouTube) asked whether in fact the "Saints Were Robbed," and then quoted from a lawsuit against Roger Goodell and the NFL claiming negligence and "emotional anguish."  I'm always intrigued by the scent of negligent infliction of emotional distress, which is a kind of chimera in American tort law.

The lawsuit, which can be downloaded from its attorney-author's website and was first reported by WDSU, is really a petition for mandamus, not a tort suit.  It does allege negligence on the part of Goodell and the NFL and asserts that they have the power under NFL rules to remedy the bad call of the Saints-Rams game.  As Roy Wood Jr. observed on The Daily Show, the petition dramatically alleges "emotional anguish" and "loss of enjoyment of life" by Saints fans.  It does not, however, assert any legal basis to order Goodell or the NFL to comply with their own rule book, even if that is what they would be doing by replaying all or part of the game.

On an SB Nation blog, an L.A. attorney and confessed Rams fan fairly if spitefully described the Who Dat petition as "one of the most frivolous lawsuits to be filed. Ever." Of course, Americans have a long tradition of working out sport frustrations in litigation—that I'm today a soccer fan is evidence of the struggle—so maybe professionalism should allow some latitude for that.

Sunday, January 27, 2019

Court dismisses prolonged suit against Government over 2009 Ft. Hood mass shooting

From the Defense Department: "Jeffrey and Sheryll Pearson look at the
portrait of their son, Army Pfc. Michael Pearson, before the Purple Heart
and Defense of Freedom award ceremony on Fort Hood, Texas, April 10,
2015. The event honored the 13 people killed and more than 30 injured in
a gunman’s 2009 shooting rampage on the base. U.S. Army photo by Daniel
Cernero."

The U.S. District Court for the District of Columbia, per the Hon. Colleen Kollar-Kotelly, dismissed service-member and family claims against the federal Government arising from the 2009 shooting at Ft. Hood, near Killeen, Texas, in which U.S. Army Major Nidal Hasan killed 13 and injured more than 30 other persons.  CourtListener has the ruling in Manning v. Esper, No. 12-CV-1802 (D.D.C. Jan. 22, 2019).

To the dismay and torment of those involved, this case has dragged on for nearly a decade.  Hasan admitted to the shootings in a 2013 court-martial and was sentenced to death.  He is presently awaiting execution, pending judicial review, at Fort Leavenworth.  The civil claims accuse the Government of negligence in the supervision of Hasan, who was permitted to work as a medical corps psychiatrist despite superior's concerns about his own mental fitness.  While Hasan's case was under way and then on appeal, the Army repeatedly asked the trial court to stay civil proceedings, provoking "anger, frustration and suspicion" on the part of the plaintiffs, in their words.

The dismissal was predicated principally on grounds of the Feres doctrine. Arising from the 1950 U.S. Supreme Court decision in Feres v. United States (Justia), the Feres doctrine bars tort claims arising from active-duty service when the claims otherwise might be authorized by the Federal Tort Claims Act (FTCA).  The Feres doctrine has made news in recent years in allowing the government to resist medical malpractice claims against healthcare providers of Veterans Affairs.  

Plaintiffs in the Ft. Hood case knew that Feres would be a problem, but hoped to work around it, as some victims were not on active duty at the time of the shooting, and some defendants were federal law enforcement officials rather than active-duty military.  The ambiguous status of some persons involved in the shooting, as well Hasan's motivations, was at issue in the intervening years in an ugly collateral dispute over victims' entitlements to military honors, which the Government for a time resisted.  In this same vein of ambiguity, the court did allow some plaintiffs' claims to proceed in administrative processes, dismissing them without prejudice for failure to exhaust remedies as the FTCA requires.

Information and privacy law aficionados might recollect the name of Judge Kollar-Kotelly.  For seven years after 9/11, she was the presiding judge of the Foreign Intelligence Surveillance Court.

Money can't redeem life, but don't think it doesn't help tort survivors


When my 1L Torts class studies wrongful death, I take the occasion to challenge the notion that money, based on quantified loss, is necessarily the best way to effect a liability award (cf. Prof. Andrew McClurg's gut-wrenching and classic Dead Sorrow).  Matthew R. Stevens, '21, posted the following on the class discussion board, and I think it makes a worthwhile complementary observation about tort awards in our age of debt and financial fragility.  Reprinted with permission.



Some Thoughts on Wrongful Death Damages
by Matthew Stevens – Friday, January 25, 2019

Professor Peltz-Steele discussed the idea of money damages in wrongful death actions, and their ability to make up for what was lost. He challenged whether they really made that pain any better, and whether a $1,000,000 award helps any more than a $500,000 award. I just wanted to share my thoughts on a possible argument that the monetary damages could help make up for what is lost.

The loss of a family member is surely nothing short of a nightmare. The impending depression, stress, and various other negative emotions can impact someone’s life in irrepressible ways. No earthly remedy could ever truly provide perfect relief for such a loss. I think it could be argued, however, that money is well suited to lessen the impact of the loss.

According to a Case Western study [reported here by CNBC], increased income can actually cause a “reduction in negative emotions” (CNBC, para. 6). Furthermore, the study also found that higher incomes could “reduce the incidence of serious mental illness” (CNBC, para. 6). It is important to note that the study is dealing with annual incomes, and not large lump sums of cash. The study also notes that the increase in happiness shows diminished returns as you reach upwards of $160,000 a year (CNBC, fig. 2). I think this can be reconciled by looking at the damages award as a lump-sum salary. For example, if a father at the age of 40 received a wrongful death damages award of $1,000,000, you could divide that award by the remainder years before retirement (25) to create a net increase in annual income of $40,000. That increased “income” could statistically reduce his negative emotions, and reduce the chances of serious mental illness. An award of $500,000 would surely help, but over time it would not have as big of an effect, only creating an extra $20,000 in annual income. This of course is not a fix-all, but it is certainly a start to fix the unfixable.

Moreover, on the other side of the coin, issues with money statistically causes large amounts of stress. An APA survey in 2014 found that “72 percent of Americans reported feeling stressed about money at least some of the time during the past month” (APA, para. 3). Furthermore, 22% experienced “extreme stress” over money in the past month (APA, para. 3). The study goes even further to explain the types of issues stressing over money creates, including avoiding medical care, and being a major conflict in relationships (APA, para. 5). So then perhaps the increased monetary awards for wrongful death actions could effectively reduce stress in the claimant’s life. With a large influx of cash, it is arguable that a lot of money-induced stress would be taken out of the picture and increasing the claimant’s quality of life.

This of course was a quick look into the idea of monetary damages and their possible ability to remedy the loss of a loved one. I would like to reiterate that I don’t believe money can ever replace the loss of a loved one, but I’m simply saying there is an argument that money helps reduce the net loss of quality of life for the claimant. It does appear that the theory holds some weight, but with its issues: one major issue being the diminishing returns on happiness when income reaches a certain threshold. Perhaps this could be integrated into the analysis more, but I wanted to keep a small scope for the analysis.

Tuesday, January 22, 2019

Comparative research overviews tort law throughout Central America

Dean Castro Valle
Dean Claudia María Castro Valle of the Universidad Tecnológica Centroamericana (UNITEC), Honduras, has published a fascinating comparative overview of Central American tort law in Louisiana State University Law's (11:1) Journal of Civil Law Studies (2018).  The article is available for free download.

Dean Castro Valle nimbly frames the civil law mechanisms of Central America in the context of tort objectives, considering the interplay of corrective and distributive justice and the amalgamation of Roman and Anglo legal principles.  There is too little such scholarship about Latin America, owing in part to the language barrier.  Dean Castro Valle's research arises in the context of regional interest in economic and legal integration, a reminder that Central America should not be forgotten as a rising and economic and political force in the twenty-first century.

Here is the introduction (footnotes omitted).

In order to achieve the proper protection of individual interests, tort rules need to be applied efficiently whenever these interests are subjected to any kind of harm. For that to be possible, the traditional approach has been the acceptance that any loss or injury sustained by legally protected interests must meet certain requirements. The requirements include the actual existence of specific regulation designed for their legal protection, compensability, imputability to a person other than the victim, and certainty. Hence, tort is generated from the infringement of the general duty of respect due to any legally protected interest. It is a non-contractual obligation imposed on a person, in order to compensate the holders of such interests, for any injuries or losses caused. These interests can be either material or moral.

The primary requirement for the application of tort law is that the sustained damages, losses, or injuries must originate from a negligent or intentional activity or omission. This means that care and
precaution were omitted in the execution of such activity, and that the causation between this activity and the harmful effects can be proved in a court of justice. However, tort liability is essentially patrimonial. Its function is to grant, impede or repair a specific economic loss, while its application allows the reparation of indirect patrimonial injuries and non-pecuniary damages.

The aim of this paper is to compare the way that tort liability is regulated in the Central American civil codes (Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, and Panama), understanding the similarities and differences in their approach. This sort of analysis could be the base of any harmonization effort, so relevant in the actual regional context, in view of the recent developments of the Central American economic integration process.


Friday, January 18, 2019

SCOTUS ponders governmental immunity in boating accident suit against TVA


The Federalist Society produced a beautifully illustrated video, as part the SCOTUSbrief series, to accompany the January 14 oral argument (transcript) in the U.S. Supreme Court in Thacker v. Tennessee Valley Authority, a personal injury suit.  The case compels the Court to analyze what, if any, governmental immunity is afforded to a range of New Deal entities, such as the TVA, which Congress broadly authorized "to sue and be sued," decades before the Federal Tort Claims Act came into being.  The Federalist Society generously invited me to provide narration for this video.  At SCOTUSblog, Professor Gregory Sisk, of St. Thomas Law, has an expert analysis of Monday's oral argument.  When available, audio of the oral argument will be posted at Oyez and at C-Span.

Tuesday, December 11, 2018

Thursday, December 6, 2018

Ecuador reexamines repressive comm law, but would keep journalist licensing. Is that so bad?

The struggle between press and government in Ecuador is not new. Protestors
pictured above in 2011 supported a complaint to the Inter-American Human
Rights Commission over press freedom after Rafael Correa, president from
2007 to 2017, brought lawsuits seeking civil and criminal penalties, to the
tune of US$10 million and four years' imprisonment, against journalists
writing about corruption and against the publishing company and directors
of El Universo, a Guayaquil-based daily. More at the Knight Center for
Journalism in the Americas
. Photo by Cancillería Ecuador (CC BY-SA 2.0).

A legislative commission in Ecuador is recommending freedom-friendly reform of the country's repressive 2013 communications law, Observacom reports.  But the commission looks to be holding on to one piece of the law: journalist licensing.  While Western human rights advocates regard journalist licensing as a plain infringement of the freedom of expression, the reality is more complicated. Even in the United States, the idea of journalist licensing has been floated as a possible remedy to our "fake news" problem.

Journalist licensing is just what it sounds like.  Some countries require that professional journalists meet certain educational and vocational training requirements, such as a university degree in journalism and periodic continuing education.  A newspaper might publish op-eds and occasional contributions from unlicensed persons.  But regular, bylined writers must be licensed.  A licensing authority oversees the membership and may sanction malpractice, such as fabricated reporting.

The typical Western reaction to this arrangement—my reaction when I first learned of it as an undergraduate journalist in 1990—is horror.  Quasi-public officials with the power to impose sanctions and the benefit of hindsight second-guess the judgment of reporters and editors over questions such as whether a story is appropriately balanced or even newsworthy?  Policing journalism like that is asking for trouble.  How can the Fourth Estate be a zealous watchdog when the watch-ee bites back?

The U.S. Society of Professional Journalists decided in the 1990s that journalistic ethics must be aspirational and non-definitive, rendering ethics guidelines that are fundamentally incompatible with legalistic rules.  Minimize harm, a sort of Hippocratic oath for journalists, became the overriding principle, espoused by academic and practitioner leaders, such as the Poynter Institute's Bob Steele (no relation).

Empowering an enforcement authority over journalism is bound to have a chilling effect on free expression, and worse, to invite control and abuse of media.  There is no doubt that that has happened; licensing has been weaponized infamously by leaders in countries such as Iran and the Philippines.  Media licensing and enforcement authorities are fairly identified by free expression NGOs, such as Observacom, Freedom House, and the Committee to Protect Journalists, as a sign of authoritarianism and a strike against freedom.

In 1985, upon an inquiry by Costa Rica—then the United States' democratic darling in Central America—the Inter-American Court of Human Rights (IACtHR)—then presided over by American judge Thomas Burguenthal, now a law professor emeritus—issued an advisory opinion concluding that journalist licensing is incompatible with the freedom of expression in the Inter-American Convention on Human Rights. (I wrote about this for my university honors thesis.  Go easy on me; I was 22.)

But step back from the problem for a moment and reconsider.  Journalism is important.  It might in fact be essential to democracy.  "[T]he press" is the only private-sector institution mentioned in the U.S. Constitution.  And especially in today's media-obsessed society, "the press" is powerful, shaping the public agenda in a way that it never has before.  Yet anyone can become a journalist, simply by saying so.  Prophylactic media privileges will protect this person from liability, or accountability, even upon publication of defamatory falsehoods, regardless of whether the person claimed journalistic credentials in good faith or published in the public interest.  To wield this power, or to abuse this power, there is no licensing, and there is no enforcement.

Meanwhile, in many American states, we license cosmetologists, interior designers, and real estate agents, and we sanction persons who would hold themselves out as having those competencies if they do not have licenses.  No disrespect to those occupations, but the republic will not fall upon their negligent practice.

Is there not some rational line to be found between licensing as a tool for authoritarian oppression, and licensing as a tool to bolster education and competence for informed democratic participation?

That question was not on my mind when I went to Costa Rica in 1992 to learn more about the colegio de periodistas, the journalism professional organization.  Rather, properly indoctrinated into the ideology of free speech absolutism, I sought only to understand how and why this anachronistic entity could persist—if as a voluntary organization since the IACtHR opinion—in evident juxtaposition with a famously liberal society.  In fact, I hoped to witness its death throes before it disappeared.

The colegio that I found was not what I expected.  Quite to the contrary, there was nothing remotely authoritarian about it.  And it was thriving.  I interviewed reporters, editors, lawyers, and people on the street, and the vast majority favored the colegio, heartily.  Indeed, its journalistic members were its strongest proponents.  They welcomed me as a fellow journalist and invited me to an evening gala with dinner and a speaker at the colegio's headquarters building in San José.  They celebrated their professional association.  When I asked about the incompatibility of journalist licensing with the freedom of expression, they frowned and shook their heads as if they simply did not understand.

The colegio in fact was more like a labor association than a lawyers' bar.  As an organization, the colegio advocated for better wages and employment terms for members, besides sponsoring professional peer dialog, continuing education, and social events.  Members helped and supported one another, professionally and personally.  They all had paid their dues—literally, and in terms of their university degrees and reporting experience—and they were happy to be part of the in crowd.  Colegio journalists were horrified at the idea of a journalistic free-for-all, the ill-informed masses practicing the reporter's craft at the public's risk, just as I had been horrified at the idea of licensing.  The Colegio de Periodistas de Costa Rica was not a public regulatory office, nor a lawyers' bar; it was more like a union and a lot like an academic fraternity.

An excellent 2010 report by journalism professor Steven Strasser, for the Center for International Media Assistance, a project of the National Endowment for Democracy, took a thorough and uncharacteristically evenhanded look at journalist licensing around the world.  While amply expounding the down side of licensing, Strasser wrote too about the up side.  He wrote about the labor angle that I discovered in Costa Rica, observing that publishers, as employers, might be as motivated by commercial self-interest as by idealism when they advocate for the incompatibility of licensing with human rights.

Strasser also observed that journalist licensing is a deliberate feature of sustainable development strategy.  Rwanda, for example, sought to use licensing as leverage to enhance the educational attainment of journalists, and thus indirectly to strengthen democracy with informed public participation.  "Fake news," after all, was in part responsible for the Rwandan genocide.  In Uganda, sensational and false reporting, perpetuating abhorrent stereotypes, has fueled brutal violence against the LGBTQ community.

That licensing might be an antidote to runaway sensationalism and "fake news" has not escaped notice by American legislators.   A Michigan legislator proposed voluntary journalist registration and a licensing board in a 2010 bill.  Membership, as a sort of service mark, would certify the writer as having a journalism or similar university degree, three years' experience, and "good moral character," Michigan Live reported.

Indiana Rep. Jim Lucas proposed journalist licensing in a 2017 bill, somewhat to mock licenses to carry firearms, according to the Indy Star.  Drawing a parallel between the First and Second Amendments, the Indiana bill would fingerprint journalists and exclude those with "felony or domestic battery convictions" from carrying a mighty pen.  Still, on the professionalism point, Lucas tweeted Trumpesquely, "Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!"

Unlike colegio members in Latin America, journalists in the United States have rallied against any talk of licensing.  (See also this 2017 point-counterpoint in Canada.)  And Ecuador is hardly the poster child for licensing's up side.  After the 2013 communication law went into effect, the Correa administration wasted no time in going after editorial cartoonist Xavier "Bonil" Bonilla at the newspaper El Universo for criticizing heavy-handed search and seizure by police as politically motivated.  The "Superintendent of Information and Communication," an office created by the communication law, "accuse[d] Bonil of perverting the truth and promoting social unrest," reported the Knight Center for Journalism in the Americas (source of cartoon, inset, published Dec. 28, 2013).




I doubt that licensing will cure our "fake news" problem.  And I'm not much on licensing in general, more for the burden on economic freedom than the risk to political freedom.  We lawyers demonstrate very well how licensing is an addictive means to economic protectionism, ultimately working at cross-purposes with consumer protection.  Moreover, regarding journalism, licensing would seem to undermine the benefits of (momentarily notwithstanding the problems with) citizen journalism in the internet age.
 
At the same time, I don't think that the licensing of journalists merits a knee-jerk reaction of detestation.  What passes for journalism in America is transforming into something frightening, more akin to the yellow journalism of the 1890s than the Woodward-and-Bernstein reporting of the 1970s.  Was journalism's twentieth-century engagement with professionalism aberrational? a racy flirtation during a midlife crisis for democracy?

Maybe we need more journalists who went to journalism school.

Can somebody please check to see whether we still have any journalism schools?

Tuesday, December 4, 2018

Civil rights suit claims a right to education.
The problem might be bigger.

My UMass Dartmouth colleague in history, Professor Mark Santow, also a member of the Providence, R.I., School Board, is part of litigation filed Wednesday, November 28, against the State of Rhode Island, claiming that the government is violating civil rights by failing to provide adequate education to youth in the public school system.

The complaint in Cook v. Raimondo, in federal district court in Rhode Island, where I reside, is available online from WPRO.  The suit was ably contextualized by Alia Wong for The Atlantic and covered by The New York Times.  Wong's piece, along with its sidebars and links, recounts the troubled history of claims to education rights under the U.S. Constitution and the unique if stubborn position of the United States in the world in refusing to add children's education to our pantheon of civil rights.

Personally I worry about the overuse of human rights language to enshrine the mundane as sacred and thereby downgrade basic human needs to aspirational wish lists—witness the dilapidated state of South African townships while the courts struggle to engineer economic rights into reality.  But I also readily admit that our 1789 Constitution, in part owing to its excessively burdensome Article V amendment process, has fallen behind the times on some omissions that, with the benefit of hindsight, seem to be no-brainers—such as sexual equality, the right to privacy, the freedom of information (a.k.a. right to access to information), and quite well arguably, rights to breathable air and basic education.

The Cook complaint smacks of activist litigation, aimed as much at media and policymakers as at the courts.  It gets around to its legal claims in number 121 of its 133 paragraphs.  Nevertheless, the claims are clever and worth pondering.  In five counts, the complaint neatly alleges violation of (1) the equal protection clause (mostly "fundamental interest," though there's a strong thread of "diversity" too), (2) the due process clause, (3) the privileges-and-immunities clause, and then—here's where things get spicy—(4) the Sixth and Seventh Amendments, and (5) the republican guarantee clause.

The Fourteenth Amendment claims are built upon a compelling background that heralds the Framers' recognition of education's essentiality to democracy, followed by a depressing account of how public education in civic virtue lately gave way to a bottom-line-oriented mill of standardized test preparation, woefully inadequately equipped and devoid of vision or values.  The story is downright Orwellian, as the complaint describes the plodding production of glassy-eyed sheep to populate America, children robbed and broken of the knowledge, skill, or will to challenge the status quo.  One wonders that Ayn Rand herself would not be persuaded to the cause of public education.

Added to the conventional Fourteenth Amendment angle are those thought-provoking latter claims about jury service and republican governance.  Citation to the Sixth and Seventh Amendments, as well as the federal Jury Act, focuses on that vital and rare obligation of citizen direct participation in government to assert a denial of rights both to the jurors who are ill prepared for the job and, consequently, the litigants and criminal defendants who depend on an informed jury to vindicate their rights.  In the final count, the republican guarantee clause is cited with indirect reference to the First Amendment ("free speech and other constitutional rights"), suggesting that an ill informed electorate can neither vote nor participate in government sufficiently to maintain representative democracy.  I can't help but think of the seemingly insoluble dilemma of money in politics, evidenced by the fealty to corporate donors pledged by our paralyzed, gerrymandered, and hardly-any-longer representative Congress.

Cook brings readily to mind the Juliana climate change lawsuit (and the Dutch Urgenda decision), about which I wrote recentlyJuliana seems doomed in the U.S. Supreme Court, if ever it were to get that far, despite a curiously indulgent ruling by Judge Ann L. Aiken in federal district court in Oregon (and later), sending the case on to trial.  It's overwhelmingly probable that the Juliana plaintiffs do not expect to win.  Rather, they seek to make a point, and they're doing so well.  So in Cook, too, as in a similar case on appeal in Michigan, the litigants have opined publicly that they hope to draw the attention of lawmakers and to stimulate public discussion—even to educate student-plaintiffs through the process, something also happening in the Juliana case, in which students appears as plaintiffs, and Judge Aiken relies deliberately on the work of student externs.  Consonantly, these cases stir up amicus feeding frenzies; NGOs in Cook already are jockeying for position to get their say on the public record.  (I'm not above it.)

As something of a separation-of-powers formalist, I'm troubled by the use of the courts for policy-making activism.  The courts are not designed for policy-making, and judges are not hired to be activists.  The late Justice Scalia famously and aptly lamented the prospect of nine black-robed "moral philosophers" in Washington, D.C., with lifetime appointments, making policy decisions for a purportedly democratic nation.  When I see a complaint that is drafted for public consumption and political persuasion rather than for judicial interrogation and a search for truth, I fear the strategy undermines whatever remains of the bar's reputation for professional integrity and objective clarity.

At the same time, this rise in judicial activism is a sign and symptom of something very broken about our democracy.  People are resorting to the courts because the political branches are not responsive.  Much as the Cook plaintiffs suggest, our system of government is failing to represent its constituents.  The complaint asserts, "Most social studies classes in Rhode Island do not discuss social problems and controversial ideas ...."  The complaint concludes: "A positive civic ethos requires all students to feel that they have a stake in the society and in its political system, and that institutions can work for them and their families in the future, even if these institutions have not been fully responsive to their needs in the past."

Whether for the right to breathable air or a basic education, a frustrated youth is turning to the courts not as a first resort, but as a last resort.  If in the end, none of our three branches of government delivers on the American promise—not the dream per se, but the opportunity to attain it—where will complainants go next?

The Brookings Institution opined in 2011:

Education has played an important role in the uprisings in the Middle East and North Africa with many commentators noting that educated youth have been integral to what has come to be called the “Arab spring.” However, what they fail to mention is that spending many years in school has failed to give many Arab youth a good education. These revolutions were not propagated by well-educated youth; these uprisings were spurred by the needs and demands of poorly educated youth, whose knowledge and skills do not meet the demands of a rapidly-advancing world.... [Despite near universal access to education,] there has been very low return on investment in terms of meaningful educational outcomes. Education systems throughout the region are hindered by low quality, irrelevancy and inequity.

Next stop: American Spring?