NZ prosecutions for sharing Christchurch vid would suppress news, free speech, but worse is empowerment of private censors

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Advocates in SCOTUS case on tort and sovereign immunity stick to their guns, frustrate Court's search for middle ground

For the Federalist Society SCOTUScast podcast series, I recorded a commentary on the U.S. Supreme Court oral argument in Thacker v. Tennessee Valley Authority, which occurred in January.  You can read more about Thacker, and see an excellent video the Federalist Society produced, via my January 18 blog entry.

The Tennessee River dips into northern Alabama, where the accident in

Thacker occurred. (Map by Shannon1, CC BY-SA 4.0).

Here is background on the case from the Federalist Society:

On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.

In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed the Thackers’ complaint for lack of subject-matter jurisdiction. 

On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment.  Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. 

Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception” here, and immunity therefore applied.

The Supreme Court granted the Thackers’ subsequent petition for certiorari to address whether the Eleventh Circuit erred in using a discretionary-function test derived from the Federal Tort Claims Act rather than the test set forth in Federal Housing Authority v. Burr, when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority) from the plaintiffs’ claims.

Counsel for Thacker and counsel for TVA stuck to their guns in the oral argument.  Thacker's position was to interpret the "may sue and be sued" language that governs the TVA and other New Deal authorities to be broadly permissive of tort suits, stopping only to preclude "grave interference" with the executive branch prerogative.  The TVA meanwhile insisted that it is entitled to a broad discretionary function immunity, like that which Congress built into the later enacted Federal Tort Claims Act.

Questions from the Court tried to pull both counselors toward the possible middle ground of a sovereign immunity for governmental functions and not for commercial functions.  But neither counsel was willing to bite.  That led to a lively oral argument.  Thacker's case seems the stronger, but it is unclear how the Court will get to either result.

Statute of repose bars asbestos claim, despite long latency of illness, Mass. high court rules

Pilgrim Nuclear Station, Plymouth, Mass. (by NRCgov, CC BY-NC-ND 2.0).

Answering a certified question from the federal district court, the Massachusetts Supreme Judicial Court (SJC) held unanimously today that a state statute of repose for personal injury claims bars a mesothelioma negligence suit against General Electric (GE) in the case of a former nuclear-plant construction worker exposed to asbestos.  The case is Stearns v. Metropolitan Life Insurance Co., No. SJC-12544 (Mass. Mar. 1, 2019) (PDF), certified by No. 1:15-cv-13490-RWZ (D. Mass. May 14, 2018).

Whereas the time limit of a statute of limitations runs from the time a would-be plaintiff becomes or should become aware that he or she has suffered an injury, a statute of repose sets a hard deadline contingent on an objectively verifiable event, irrespective of the plaintiff's experience.  Massachusetts law has a statute of repose, Mass. Gen. L. ch. 260, § 2B, that is generous to the construction industry, relative to other states' laws.  When personal injury arises from improvement to real property, tort claims are barred six years after the improvement is opened to use.

Wayne Oliver

Brockton, Mass., native Wayne F. Oliver worked as a pipe inspector for a contractor of GE on the installation of turbine generators at the Pilgrim Nuclear Station at Plymouth, Massachusetts, and at the Calvert Cliffs Nuclear Power Plant in Maryland in the 1970s.  Installation specifications called for the use of asbestos insulation, to which Oliver was exposed over the course of years.  In April 2015, Oliver was diagnosed with mesothelioma, a known health consequence of asbestos exposure, and in July 2016, at age 67, he died.

Plaintiffs in some toxin claims have trouble navigating statutes of limitations, because litigants dispute when an ill plaintiff should have realized that the illness was consequent to exposure.  Suing and non-natural causation are not necessarily the first thoughts of a patient diagnosed with cancer.  But mesothelioma victims often surmount statutes of limitations hurdles, because the disease has a long latency period, and then, as in Oliver's case, manifests onset and death in short order.  Statutes of repose then become problematic in cases arising from construction exposures.

Piping in turbine building at Russian nuclear power plant, 1986
(RIA Novosti archive, image #447414, by Petrouhyn, CC-BY-SA 3.0).

The SJC in Stearns recognized the well accepted proposition that statutes of repose may work a corrective injustice against injured plaintiffs, especially in case of diseases with long latency periods.  But the greater policy aim of statutes of repose is to time-limit liability for commercial actors, lest productive development become unaffordable for fear of perpetual liability exposure.

Contingent on objectively verifiable events, statutes of repose tend to be unforgiving of lapses in time.  The SJC observed that various statutes of repose in Massachusetts have not yielded in prior cases, even upon a defendant's intentional wrongdoing or fraudulent concealment of danger, or a victim's mental illness or ongoing medical treatment.  The statute of repose for medical malpractice contains an exception in the event of a foreign object left in a person's body, so, the SJC reasoned, the legislature knows how to make an exception when it wants to.  The statute of repose in construction is "ironclad."

Associate Justice Cypher

In a footnote, the court added:

The plaintiffs point out that a number of other State Legislatures have effectively exempted asbestos-related illnesses from their respective statutes of repose concerning improvements to real property. We encourage our Legislature to consider doing the same should it determine that such an exception is consonant with the Commonwealth's public policy.

The opinion in Stearns was authored by SJC Associate Justice Elspeth B. Cypher, a Pittsburgh native.  In the fall 2019 semester at UMass Law School, Justice Cypher is scheduled tentatively to co-teach, with former dean Robert V. Ward, Jr., Race, Women’s Rights, Gender Identity and the Law.

Upon Oliver's death in 2016, the family asked for donations to the Mesothelioma Applied Research Foundation, in lieu of flowers.

Let's 'open up our libel laws': I'm with Thomas

There's been a blustering rash of hand-wringing in journalism and First Amendment circles over the recent concurrence to cert. denial by Justice Thomas in McKee v. Bill Cosby (SCOTUSblog).  The case would have asked when a victim of sexual assault becomes a limited-purpose public figure after publicizing her allegation.  Based on First Amendment doctrine dating to the 1960s, famously including New York Times Co. v. Sullivan (U.S. 1964) (Oyez), a limited-purpose public figure must prove actual malice to prevail in a defamation claim.  That's very hard to do.  The First Circuit affirmed dismissal in favor of Cosby. 

"Actual malice"—ill named, as it does not have to do with anger or ill will, which is "common law malice"—is akin to the recklessness standard of tort law.  In a defamation context, "actual malice" is said to mean "knowledge of falsity or reckless disregard as to truth or falsity."  Supreme Court precedents late in the civil rights era amped up "reckless disregard" so much that for many years, actual malice seemed to be a nearly "fatal in fact" test.

Based only on casual observation, I posit that actual malice's rigor has been weakening in recent years.  Courts have begun to recognize the need to fine tune the balance between reputational and speech rights.  Meanwhile, "actual malice" has had a rough go in the world, even among our fellow human rights-loving western democracies.  Actual malice has been largely rejected as a functional standard for its insufficient protection of reputation as a human right countervailing the freedom of expression.  (My colleague Prof. Kyu Ho Youm paints a different picture.  I deeply admire Prof. Youm, a dear friend, and his work, which I have assigned students to read.  But I sharply disagree with his conclusion on this point.)

In his concurring opinion in McKee, Thomas challenged the constitutional imperative of the actual malice standard, which is so much higher than negligence and strict liability.  His argument was not so narrow, however.  Broadly, he proposed that the Court reconsider the fundamental premise that the the federal Constitution, through the First Amendment, should reshape state tort law, as the Court held it did in the civil rights-era cases.  Thomas is a champion of textualism and originalism, and it must be admitted that the Court's First Amendment doctrine from the latter-20th century is on thin ice in those schools of constitutional interpretation.

This blog, any blog, is far from an adequate venue to tackle this question.  I just want to do my part to raise consciousness of Thomas's proposition, and to dare to say, I agree.  For many years now, I have harbored a deep suspicion of Sullivan and progeny.  In my academic circles, especially in the free speech and civil liberties crowd, I have felt something like a church deacon harboring a dark secret.  No longer; I confess:

Actual malice swung the pendulum way too far in favor of defendants.  I get why, and I appreciate the good intentions.  Sullivan arose against the tragic reality of the Jim Crow South and the potential national crisis precipitated by desegregation.  But even Anthony Lewis, in his definitive book on Sullivan, Make No Law, recognized that the Court's federalization and constitutionalization of state defamation law had the ill effect of freezing the process of common law evolution.  As a result, we have been deprived of the opportunity to experiment with fair and equitable policy alternatives, such as media corrections as a remedy.

I'm not arguing to "open up our libel laws," quite as President Trump proposed.  But I'm with Justice Thomas.  Sullivan is not holy writ.

Beyond anthropomorphism: Research posits post-humanist animal rights

Tomorrow the UMass Law Review will ceremoniously launch its volume 14.  Included therein is a deep, thought-provoking work on animal rights and welfare by Barnaby McLaughlin, '19, himself a teacher in the English Department at Rhode Island College.  The paper, "A Conspiracy of Life: A Posthumanist Critique of Appoaches to Animal Rights in the Law," is available online from the law review.  I'm proud to say I was a reader on this project, though it was decidedly one of those I-got-more-than-I-gave scenarios.  I'll take my Ph.D now, please.  Here is the abstract.

Near the end of his life, Jacques Derrida, one of the most influential philosophers of the twentieth century, turned his attention from the traditional focus of philosophy, humans and humanity, to an emerging field of philosophical concern, animals. Interestingly, Derrida claimed in an address entitled The Animal That Therefore I Am that, 

since I began writing, in fact, I believe I have dedicated [my work] to the question of the living and of the living animal. For me that will always have been the most important and decisive question. I have addressed it a thousand times, either directly or obliquely, by means of readings of all the philosophers I have taken an interest in. . . .

Derrida’s insistence that the question of the animal has always been the focus of his work reflects an interesting turn in philosophy at the end of the twentieth century, where the primacy of the human was rightfully being challenged, and the lives of animals were being considered on their own terms. Increasingly, the shift in focus from the primacy of the human to a more thoughtful consideration of animals has moved outside of just philosophy into other academic fields. These developments have been reflected in the emerging interdisciplinary field of posthumanism. Posthumanism, inclusive of all disciplines, seeks to shed the legacy of liberal humanism and the primacy of the human and instead consider all the interests of those that the human shares the world with (including animals, plants, technology, et cetera). Curiously however, while posthumanism has had an impact in most disciplines, outside of a few scholars, it is absent in the legal field (both in academia and in practice). Where the status of animals in the law has been challenged, it has largely been done through arguments derived from the legacy of liberal humanism. The two most significant challenges to the status of animals in the law have been mounted by the Nonhuman Rights Project in the United States, and the Great Ape Project, which has primarily been successful in New Zealand and Spain. Both projects have sought to expand legal rights to hominids, though each has adopted different strategies. The Nonhuman Rights Project has sought to use arguments within existing legal paradigms to force the courts to recognize chimpanzees as “persons,” whereas the Great Ape project has intentionally avoided court (for fear of setting unfavorable precedents) and favored pressing change through legislation. Ultimately however, both projects are thoroughly rooted in liberal humanism and advance their arguments through proximity claims—the idea that certain animals, in these cases, apes, deserve legal consideration because of their similarity to humans.

This paper is an interdisciplinary comparative analysis of the Nonhuman Rights Project’s failures in the United States and the Great Ape Project’s success in New Zealand. The success of the legislative approach of the Great Ape Project demonstrates the need to approach these arguments outside of the courtroom to avoid hostile judges, philosophical legacies, and archaic precedents. However, the Great Ape Project does not go far enough in expanding the rights of other beings as it relies on emphasizing similarities with humans as the sole reason for extending rights, leaving other beings, even higher order mammals like dolphins, without inclusion— and a real possibility that any such inclusion would forever be cut off. Therefore, this paper proposes the need for a posthumanist foundation for pursuing the rights of other beings through legislative means.

UMass Law prof learns immigration law in action

Prof. Farber

My UMass Law colleague Professor Hillary Farber is "Blogging from the Border" this semester, as she works for the Florence Immigrant and Refugee Rights Project in Arizona.  As she explained in her initial post, she went to Arizona with no particular expertise in immigration law, but wanted "to bring humanity to this migration struggle."  You can follow her on this adventure via WordPress. 


The Florence Project accepts attorney volunteers to represent detained immigrants in removal proceedings and to work on matters including cancellation of removal for legal permanent residents, citizenship claims, adjustment of status for refugees, asylum, and special immigrant juvenile status for abused, abandoned, or neglected children.  Learn more at the Pro Bono Program page of the project website.

Remembering 'very unique,' 'extremely historic,' pre- post-literate politics

Comedic media have recently lampooned with delight the President's sing-song description of litigation over the "national emergency" at the border.  (My favorites are Trevor Noah's "Guitar Hero" take and Stephen Colbert's "Torah reading."  Jake Tapper told Colbert aptly that Trump's description might actually prove correct.)  Then Bernie Sanders entered the race and admonished media that if his ideas were once fringe, they are no more.  Access to higher education always has been a key part of his platform.

This confluence of events made me nostalgic for the quixotic character of the savant President Bartlett of The West Wing (1999-2006).  To be clear, this is not a political statement: I'm not condemning Trump, nor endorsing Bernie, nor, least of all, saying anything about the politics of Martin Sheen, Rob Lowe, and Allison Janney.  I just wanted for a moment to set politics aside and revel in the appeal of a President who appreciates good writing and the power of language.  So I looked up this video introduction to West Wing season 2, episode 9, "Galileo V," aired November 29, 2000—ten months before September 11.  O simpler times and innocent idealism.

Hat tip to Kayla Venckauskas, UMass Law '19—editor-in-chief of the UMass Law Review, 2018 Rappaport Fellow, ALDF scholarship winner, and survivor extraordinaire of my 1L Torts class—for reminding me of this gem.  (If any of my media law colleagues still want to jump into this year's Law and Media Symposium on March 28, get in touch ASAP, and I'll do my best to hook you up.)