Law profs advise on law jobs

Just out from my friend, colleague, and fellow torts prof Andrew McClurg and co-authors, legal writing prof Christine Coughlin and torts prof Nancy Levit: Law Jobs: The Complete Career Guide.  Here is the publisher's description:

Choosing a legal career that fits a student’s personality, skillset, and aspirations is the most important and difficult decision a law student faces, yet only a small number of law schools incorporate career-planning into their curriculums. Law Jobs: The Complete Guide seeks to fill the gap. Written by three award-winning professors, Law Jobs is a comprehensive, reader-friendly guide to every type of legal career. Packed with authoritative research and featuring comments from more than 150 lawyers who do the jobs, Law Jobs offers in-depth exploration of each career option, including general background, pros and cons, day in the life descriptions, job availability, compensation, prospects for advancement, diversity, and how students can best position themselves for opportunities in the field. Covered jobs include:

• Large and Medium-Sized Law Firms
• Small Firms and Solo Practitioners
• In-House and Other Corporate Counsel
• Government Agency Lawyers
• Non-Governmental Public Interest Law
• Prosecutors and Public Defenders
• Private Criminal Defense
• JD Advantage Jobs
• Contract (Freelance) Lawyering
• Judges, Mediators, and Arbitrators
• Judicial Law Clerks
• Legal Academic Jobs

Other chapters address lawyer happiness, the rapidly changing face of the legal profession due to technology and other forces, the division between litigation and transactional law, and the top-50 legal specialty areas.

Together, the authors have received more than thirty awards for teaching and research, and have written extensively about law students and lawyers in books such as 1L of a Ride (McClurg), A Lawyer Writes (Coughlin), and The Happy Lawyer (Levit).

Planet Money tackles litigation financing, champerty

One of my long-term favorite podcasts, Planet Money, last week tackled litigation financing.  We talk a lot in Torts in law school about America's runaway transaction costs and how they affect, or impede, civil justice.  Litigation financing can seem like manna from heaven when one thinks of tragedy-of-the-commons problems such as climate change.  But then there are the problems of corporatocracy, secrecy, and the distastefulness of commodification. Planet Money traces our distaste to champerty in British common law.  Here's the introduction:

Litigation financing allows third-party funders like Burford Capital to invest in other people's lawsuits, but it's long been considered unethical, and is illegal in many places.  But justice can often hinge more on how much money each side has than on what's actually right or wrong. So Burford argues that allowing investments in lawsuits will give more people access to better justice. And it's been a good business for them. But others worry it might warp the justice system.

Listen to "Capitalism in the Courtoom," episode 942, at NPR, here, or wherever you get your podcasts.

Honduran law dean joins UMass comparative law class

Speaking from UNITEC in Tegucigalpa, Dean Castro Valle explained how her 2018 English-language article on comparative tort law (featured) fit into her broader dissertation project on regional class actions for environmental justice in Central America.

#ComparativeLaw @UMassLaw (me & @PeltzSteele) today had privilege of a brilliant Zoom guest to educate us on Honduran/Central Am. civil law, as compared with EU and with US common law, and on harmonization in Central America. THANK YOU @cmcastrovalle! https://t.co/eHmGLwgMwy

— RJ Peltz-Steele (@RJPeltzSteele) October 9, 2019

UMass Law comparative law students asked about legal harmonization in Central America and asked Dean Castro Valle to assess the prospect of a supranational entity in the region, akin to the European Union, that might advance economic development. She said such a project has been in the works since the 1950s. Pointing to present discontent with President Ortega in Nicaragua, for example, she explained that not enough states have been stable and interested in pursuing the project at the same time. Meanwhile she and other legal scholars are working to harmonize civil codes and arbitration process to increase legal certainty sufficiently to attract investment from transnational business.

Info reg round-up: French feud, global injunction, foreign discovery, and literal grains of paradise

I've lately been swamped by developments in global information regulation.  Here's a round-up of highlights with links to read more.

Google-France feud.  Fresh on the heels of Google v. CNIL (read more), tensions are heating up again between Google and France, as Google refuses to play ball with France's new copyright law.  The 2019 EU Directive on Copyright in the Digital Single Market aimed, inter alia, to protect publishers from the scraping of their news product for aggregators' clips and snippets without compensation.  France was the first country, and only so far, to transpose the directive's article 15 (né draft article 11) into national law.  Effective this month, the French law would compel an aggregator such as Google to pay news publishers for the content that appears in Google search results.  How much money Google makes from Google News is disputed, but it's a lot.  Google contends that news providers are well compensated by traffic driven to their websites.  The news industry doesn't feel that way and blames aggregators for killing the business model of news, public interest journalism along with it.  Now Google has said that search results in France will exclude content that would require payment under the new copyright law.  The News Media Alliance, a U.S. industry association, has called Google's move "extortion."

Eva Glawischnig-Piesczek, Austrian Green

EU: Global injunction of one country's "defamation."  The European Union (EU) continues to amp up internet service provider (ISP) accountability.  A chamber of the Court of Justice of the EU (CJEU) ruled that European law—including EU information market directive, the Treaty on the Functioning of the EU, and the freedom of expression—does not preclude a member state from issuing a global injunction to take down unlawful content.

The facts reveal the problematic scope of the state power implicated, as the case arose from a Facebook post disparaging, e.g., "traitor," an Austrian politician.  The disparagement was regarded as defamation in the Austrian courts, but would be protected as core political commentary or hyperbolic opinion in the United States and many other countries.  The prospect of a state order with global reach was raised by the recent CJEU decision in Google v. CNIL.  Slate's take took no prisoners: "In so ruling, the court demonstrated a shocking ignorance of the technology involved and set the stage for the most censor-prone country to set global speech rules."

The case is Glawischnig-Piesczek v. Facebook Ireland Ltd., No. C-18/18 (Oct. 3, 2019).

US: Extraterritorial discovery.  The Second Circuit meanwhile published an opinion that pushes outward against the territorial bounds of U.S. law.  The court ruled that statutory civil procedure under 28 U.S.C. § 1782 may reach records held outside the United States and is co-extensive in scope with the maximum long-arm personal jurisdiction of constitutional due process.

The case arose from Banco Santander's acquisition of Banco Popular Español (BPE) after a criminal investigation and government-forced sale of the latter.  Mexican nationals and investors opposing the acquisition sought discovery in the U.S. District Court in New York against Santander and its New York-based affiliate, Santander Investment Securities (SIS), under § 1782.  The law compels discovery against a person or legal entity that "resides or is found" in the U.S. jurisdiction.

Santander New York (© Google Earth)

The court rejected Santander's contention, supported by academic opinion, that the language could not reach a mere "sojourner" in the jurisdiction.  The court furthermore held that the presumption against extraterritoriality of statutory interpretation does not apply to a jurisdictional statute, and even if it did, the design of the Federal Rules of Civil Procedure, with which the statute fits, plainly and expressly encompasses extraterritorial reach.

However, the court held, only SIS, not Santander, was within the reach of long-arm personal jurisdiction.  SIS was subject to general jurisdiction, but was not meaningfully involved in the BPE acquisition.  Santander had hired New York consultants to contemplate an acquisition of BPE, which could subject Santander to specific jurisdiction, but that was an entirely different transaction, prior to the government-forced sale of BPE.

Though the case deals with conventional discovery, it has important implications for transnational business in the age of e-discovery.  Expansive U.S. discovery practice is incompatible with more restrictive norms in much of the world, Europe included.  Section 1782 is a potentially powerful tool for savvy litigants to get their hands on opponents' materials when foreign courts won't allow it.  That's bound to rub transnational business and foreign regulators the wrong way.

The case is In re Del Valle Ruiz, No. 18-3226 (2d Cir. Oct. 7, 2019).  Hat tip to New York attorney Ken Rashbaum, at Barton LLP, who telephonically visited my Comparative Law class and referenced the case, and will be writing more about it soon. 

Gin labeling and grains of paradise.  OK, this is more about misinformation than information, and it is globally important.  Law and gin, two great international cultural forces and loves of my life, come together in a recently filed lawsuit over grains of paradise.  You can't make up stuff this dry yet thirst-quenching.

Bombay Sapphire Bottle (by @Justintoxicate)

In a class-action complaint removed to the U.S. Southern District of Florida in mid-September, plaintiffs accuse Bacardi USA, maker of Bombay Sapphire Gin, and Winn-Dixie supermarkets of selling "adulterated" product, because Bombay gin contains a botanical literally called "grains of paradise."  According to the complaint, grains of paradise, scientific name Aframomum melegueta, "is an herbaceous perennial plant native to swampy habitats along the West African coast."  Turns out, it's illegal under Florida law, section 562.455.

The ABA Journal explained: "The 150-year-old Florida law was passed when people thought grains of paradise was a poisonous drug. The misconception likely arose when home distillers added other, dangerous ingredients to gin to 'mask the awful distilling and make more money,' according to Olivier Ward, a British gin expert and consultant who spoke with the Miami Herald."  Bacardi is not hiding anything and maintains that its products comply with all health and safety regulations.  The complaint itself states that grains of paradise are listed in the ingredients and actually etched on the gin's blue bottle.

The case is Marrache v. Bacardi, U.S.A., Inc., No. 1:19-cv-23856 (S.D. Fla. docketed Sept. 16, 2019).

Court refuses to dismiss Harvard in student-suicide suit

The Massachuetts Superior Court, per Judge Michael D. Ricciuti, denied Harvard University's motion to dismiss a negligence claim brought by the parent of a student, Luke Tang, who committed suicide on campus in 2015.  The case comes in the wake of a 2018 Massachusetts Supreme Judicial Court (SJC) decision refusing to allow the Massachusetts Institute of Technology (MIT) to be held responsible for a student's suicide.

Luke Tang lived at Harvard's Lowell House.  (Photo by Carrie Anderson
CC BY-SA 2.0)

In the 2015 case, Nguyen v. MIT, discussed here, the SJC ruled that the university-student relationship does not support a duty in tort law akin to the custodial relationship between a parent and child, or custodian and dependent.  That ruling was consistent with historic and enduring common law norms, which hold that a person's intentional suicide, in some jurisdictions a crime, interrupts the chain of duty and causation that would link the death to any earlier-in-time carelessness.

However, the SJC left open the possibility that a university could be responsible for a suicide if the decedent had been in a "special relationship" with the defendant.  "Special relationship" is a term of art in tort law, referring to the very relationships in which public policy supports a person's expectation of care from another.

In the instant case, Tang v. Harvard College, plaintiff seeks to pin liability on Harvard and its employees through that very allowance for special relationships.  As reported by the Harvard Crimson last year, Tang was known to Harvard as a suicide risk.  Tang had been transported to a hospital after a suicide attempt freshman year.  When he returned to school, he signed an agreement with Harvard that he would stay in counseling with Harvard mental health staff.  Returning to school after the summer, though, Tang failed to keep his appointments, and the complaint alleges that Harvard failed to follow up.

Special relationships in tort law can be created when a medical professional undertakes care of a patient, or when any person voluntarily takes on the responsibility of caring for another, which can be signified by action or contract.  Tang's theory of special relationship resonates in those ways, considering the counseling function of Harvard staff and the agreement that Tang signed with Harvard.

Superior Court Justice Michael D. Ricciuti found sufficient basis to distinguish Nguyen.  Justice Ricciuti wrote, "Harvard's argument to dismiss this case reduces Nguyen to a check-box, and that once a university checks one of the three boxes—a protocol, or if there is none, clinical care, or if that is refused, reaching an emergency contact—its duty ends regardless of how well or poorly the university fulfils its duty. That interpretation cannot be correct."

Justice Ricciuti is himself a 1984 graduate of Harvard Law.  A native of Quincy, Massachusetts, he was in private practice and served as federal prosecutor before being confirmed to the bench.

The case is Tang v. President and Fellows of Harvard College, No. 18-2603 (Mass. Super. Ct. Sept. 9, 2019).  Hat tip @ Massachusetts Lawyers Weekly (pay wall).  Read more at The Harvard Crimson.  For a short time, I will park a copy of Justice Ricciuti's ruling here.

A documentary film about Luke Tang, Looking for Luke, seeks to raise awareness of mental health problems affecting young people.  Here is the trailer.

Conn. adopts alternative liability in mill-fire suit against teen smokers

The Connecticut Supreme Court adopted alternative liability in a case seeking to hold three smoking teens responsible for a vacant-mill fire.  The case is Connecticut Interlocal Risk Management Agency v. Jackson, No. SC-19946 (Conn. Sept. 17, 2019).  Here are the facts from the court opinion:

At approximately 1 a.m. on June 2, 2012, the defendants, all of whom were teenagers at the time, entered an abandoned mill located in the town. Once inside, the defendants proceeded to explore the multistory structure while drinking alcohol and smoking cigarettes. Each of them smoked approximately five cigarettes, and each discarded the cigarette butts by tossing them onto the wooden floor of the mill without extinguishing them.  The defendants left the mill at approximately 1:45 a.m.  By about 2:20 a.m., the property was engulfed in flames, and the Somers Fire Department had been dispatched to the scene. The fire destroyed both the mill and the sewage line.

Law students usually encounter “alternative liability” in the classic California case, Summers v. Tice, 199 P.2d 1 (Cal. 1948).  This multiple-liability concept allows a plaintiff to charge multiple defendants with responsibility for a wrong without establishing that any one of them was in fact responsible.  In other words, the doctrine engages a fiction as preferable to letting all defendants off the hook.

Beaver Creek quail hunting (Torrey Wiley CC BY 2.0)

In Summers, plaintiff was struck in the eye by shot as his two fellow hunters fired at quail.  It could not be determined to a preponderance of the evidence, i.e., more than 50% likelihood, which of the hunters actually fired the shot that struck the plaintiff.  But because both bore equal moral culpability under the circumstances, relative to the position of the plaintiff, it makes more sense to hold them both liable then to let both prevail.  A little shy of that result, technically, the actual effect of alternative liability is to shift the plaintiff’s burden to prove a defendant’s responsibility to a burden of each defendant to prove non-responsibility.

Alternative liability, as articulated in the Second Restatement of Torts and the Court (quoted here), pertains when: (1) “all of the defendants acted negligently and harm resulted,” (2) “all possible tortfeasors have been named as defendants,” and (3) “the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”  Alternative liability is a lawyer-at-cocktail-party favorite, but few cases have facts that can measure up to this stringent test.

Alternative liability had ramifications in the later development of narrow but important product liability doctrines, in cases in which plaintiffs struggle to link a single manufacturer among many with a particular injurious product—think in terms of a dangerous pesticide containing a mix of chemical compounds, each purchased from various sellers.  Some extension of the doctrine has been controversial in the scholarship and ill received in the courts, insofar as product liability is strict, that is, not arising upon proof of any legal or moral fault by a defendant seller.  It can seem, then, that strict product liability effectively penalizes participation in the marketplace.  Add to that the fiction of alternative liability, and it can be just too much for the conscientious economic conservative.

HT @ TortsProf Blog.  Images, by Jim Michaud, from the 2012 mill fire:

EU court rules for Google, narrows French 'right to be forgotten' order to Europe

In the latest battle of the feud between Google and the French data protection authority (CNIL), the Court of Justice of the European Union ruled that the CNIL's "right to be forgotten" order should be limited to internet users in Europe.  However, the court did not rule out the possibility of a worldwide order if the facts warrant.

The court wrote:

[T]he right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality....  Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world. 

While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679 [GDPR], struck a balance between that right and that freedom so far as the Union is concerned ... it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.

"Proportionality" is a core principle of EU human rights law when regulation collides with individual rights, or, as here, state power is implicated to favor one individual's rights over those of others.  The same principle also constrains supra-national authority over member states.

The case arose from a CNIL fine of Google.  The French authority had ordered Google to de-list search results to protect certain individuals' privacy under the "right to be forgotten," or "right to erasure," when those individuals were searched by name.  "De-listing" or "de-referencing" search results is the front line of right-to-erasure court challenges today, though the specter of erasure orders that reach content providers directly looms on the horizon.

Google complied with the CNIL order only for European domains, such as "google.fr" for France, and not across Google domains worldwide.  Google employs geo-blocking to prevent European users from subverting de-listing simply by searching at "google.com" (United States) or "google.com.br" (Brazil).  Determined users still can beat geo-blocking with sly technocraft, so CNIL was dissatisfied with the efficacy of Google's solution.  Undoubtedly, a dispute will arise yet in which the CNIL or another European data protection authority tests its might with a more persuasive case for global de-listing.

The case is Google, LLC v. Commission Nationale de L’informatique et des Libertés (CNIL), No. C-507/17 (E.C.J.), Sept. 24, 2019.  Several free speech and digital rights NGOs intervened on behalf of Google, including Article 19, the Internet Freedom Foundation, the Reporters Committee for Freedom of the Press, and the Wikimedia Foundation, as well as Microsoft Corp.  The case arose initially under the 1995 EU Data Protection Directive, but carries over to the new regime of the General Data Protection Regulation (GDPR).