Court: Irish officials must justify non-disclosure under FOIA exemption for commercial information

Ireland Supreme Court chamber (Michael Foley CC BY-NC-ND 4.0)

In two judgments in late September, the Supreme Court of Ireland ruled that Freedom of Information Act (FOIA) of 2014 exemption for confidential commercial information is not mandatory and that public entities relying on the exemption "must explain why the public interest does not justify release."

In both cases, public entities responding to record requests had been permitted to rely on the prima facie application of the exemption.  That approach fell short of the Irish FOIA's legislative command, the Supreme Court reasoned, because the record requesters were given no information with which to test the validity of the exemption.  The Supreme Court reversed and remanded.

Federal and state FOIAs in the United States also exempt from disclosure confidential information that private entities supply to government when disclosure would jeopardize the private entity's competitive position.  The exemptions operate also to shield public information from disclosure that would jeopardize the government's own competitive position as an actor in the private marketplace.

The U.S. FOIA does not, and state FOIAs typically do not, require that a public agency independently test confidential-information exemption against the public interest in disclosure, essentially second-guessing private owners' confidentiality designations.  To the contrary, legislative exemptions in some states are mandatory, and not, as U.S. FOIA exemptions are, committed to administrative discretion.  Current federal policy permits the disclosure of some statutorily exempt records, but the U.S. Department of Justice (DOJ) counsels agencies to engage in "full and deliberate" analysis of competing interests.  As to federal exemption 4, for confidential information, the DOJ has opined that such information "would not ordinarily be the subject of discretionary FOIA disclosure."

University College Cork, 2019 (Michael O'Sheil CC BY-SA 4.0)

However, unlike U.S. FOIA exemption 4 ("trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4)), the Irish exemption for confidential information is limited by a "public interest override."  According to the Irish law, the exemption does not apply when according to the agency "head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."  Public interest overrides favoring disclosure are uncommon in U.S. access-to-information law, except in balancing analyses involving personnel records.

Journalist Gavin Sheridan, 2014 (Markus ›fin‹ Hametner CC BY 2.0)

Decided on September 25, 2020, both cases in Ireland involved journalistic investigations.  In Minister for Communications, Energy and Natural Resources v. Information Commissioner, [2020] IESC 57, journalist, FOI advocate, and founding CEO of Vizlegal, a legal information service provider, Gavin Sheridan (recent profile at The Attic) sought access to a state contract with service wholesaler E-Nasc Éireann Teoranta (eNet) to provide public access to fibre-optic-cable infrastructure.  In University College Cork v. Information Commissioner, [2020] IESC 58, news broadcaster RTÉ sought information about a €100m loan by the European Investment Bank to the National University of Ireland, Cork.  Both court opinions were authored by Justice Marie Baker, herself a U. Cork alumna, with four other justices concurring.

More details and further analysis of the cases are available from Andrew McKeown BL at Irish Legal News (Sept. 28, 2020), and from Bébhinn Bollard, Doug McMahon, and Brendan Slattery at McCann FitzGerald (Oct. 12, 2020).

Grand jury secrecy is important, but not sacred

pixy.org (CC BY-NC-ND 4.0)

[UPDATE: As I was writing this piece on Friday, the Kentucky court released audio of the grand jury proceedings.  Read more at your preferred news outlet.]

A fight is under way in Kentucky over a grand juror's bid to speak out about what happened in the room in September when the grand jury rejected indictment for the killing of Breonna Taylor.  The attorney for "Anonymous Grand Juror #1" accuses the Kentucky AG of not telling the public the whole story.

Most of the news coverage, and some of the scholarly commentary, follows up report of the meta-litigation with a declaration about the hallowed secrecy of the grand jury and the extraordinary nature of a bid to compromise that secrecy.

That characterization slightly misses the mark.  What is extraordinary, but not unprecedented, about the case is that the bid to speak is coming from a participating grand juror, rather than an outside petitioner, such as an indicted defendant, a victim, or a media intervenor.

We should be protective of grand jury secrecy.  The grand jury is one of the few areas of American law in which our absolutist-tending free speech doctrine makes some concession to the protection of reputation, mostly to the benefit of the unindicted.  

At the same time, we should refrain from heralding grand jury secrecy as incontestable and absolute.  The tradition of grand jury secrecy inverts the presumption underlying the common law right of access to the courts.  Ample common law precedent demonstrates that grand jury secrecy is only a presumption—rebuttable, by definition. 

In 1951, the Supreme Court of Pennsylvania wrote ably on the issue while rejecting a defense bid to investigate the grand jury process that resulted in indictments for bribery.

In view of the large amount of literature that has been written concerning the origin and history of the Grand Jury as one of the administrative agencies of the criminal law employed for centuries throughout the Anglo-Saxon world it is wholly unnecessary to attempt to elaborate upon those themes. Likewise there is no need to stress the vital importance of the maintenance of secrecy in regard to the deliberations and proceedings of Grand Juries, for the policy of the law in that respect has been so long established that it is familiar to every student of the law. The form of the oath of secrecy to be exacted of grand jurors was prescribed in our own Commonwealth as early as the Frame of Government enacted by the Provincial Assembly in 1696, substantially the same as it had been set forth in 1681 .... Generally speaking, the rule is that grand jurors cannot be sworn and examined to impeach the validity and correctness of their finding if an indictment has been regularly returned.

[¶] It is true that some inroads have been made upon the rule of secrecy, with a resulting number of established exceptions. Thus a grand juror has been held to be a competent witness to prove who the prosecutor was .... Or to contradict the testimony of a witness as to what she testified to before the Grand Jury .... Or to testify that the indictment was based solely upon testimony heard by the Grand Jury in another case against another person .... 

As to whether the mandate of secrecy nevertheless permits disclosure by a grand juror concerning alleged improper acts or misconduct on the part of the prosecuting officer in the Grand Jury room there is considerable contrariety of opinion in the various jurisdictions, ... which naturally results from the fact that there are obviously valid reasons to support either view. 

[¶] On the one hand, to close the doors of the Grand Jury room so tightly that the actions of the prosecuting officer therein cannot be disclosed, however flagrant and unlawful his conduct may have been and however much it may have been responsible for the finding of a wholly unauthorized bill of indictment, would be unfair to the defendant thus indicted even though, if innocent, he could subsequently vindicate himself in a trial upon the merits; it would also permit an over-zealous official to use the power of his office and his influence with the grand jury as an instrument of oppression, with immunity from investigation. On the other hand, to allow such an investigation lightly to be had would afford an opportunity to every defendant to institute dilatory proceedings and divert the course of justice from himself to an attack upon the public officials charged with administering the law and thereby seek to make them the defendants in the proceedings instead of himself.

Commonwealth v. Judge Smart, 368 Pa. 630 (1951).

I don't know enough about the merits in the Kentucky case to opine on what the outcome should be.  The AG's memo is in circulation online, but I can't find the juror's initial petition.  I expect the court to make an informed decision that balances the just cause of secrecy with the also-just cause of accountability.  

If grand jury secrecy gives way, the sky isn't falling.

The case is Anonymous Grand Juror #1 v. Commonwealth of Kentucky, No. 20-CI-5721 (Jefferson, Mo., Cir. Ct. II Div. filed Sept. 2020).

[UPDATE, Oct. 21.]  Yesterday the court ruled that grand jurors may speak publicly.  This is the statement of Anonymous Grand Juror #1.

Multi-ethnic kid crew fights bloodsucking gentrification

Are you in need of a Stranger Things fix? Season 4 resumed filming a couple of weeks ago.

In the meantime, Netflix's Vampires vs. the Bronx offers delightful diversion.

There have been black vampires and black horror films, but not so much vampire films with human protagonists of color.  Or many colors.  Enter Vampires vs. the Bronx, a welcome addition in the open vein of comedy-horror.

In Vampires, a quartet of talented youthful stars (Jaden Michael, Gerald Jones III, Gregory Diaz IV, and Coco Jones) are residents of a Bronx neighborhood resisting a clandestine vampire invasion.  The characters casually comprise kids of African-American, Haitian, Puerto Rican, and Dominican descent.  Their cultures are not conflated as we get glimpses of their home lives.

The film collects stars and boasts a few subtle send-ups to classic comedy and horror.  An opening cameo by Zoe Saldana is especially apt, as her heritage includes all of Dominican, Haitian, and Puerto Rican roots.  Cliff "Method Man" Smith plays the local priest, who doles out the Eucharist with a steely glare to his troublesome young congregants.  Bronx-native, Dominican-American comedian, Joel "The Kid Mero" Martinez drives the narrative as beloved bodega owner-operator Tony.   

Saturday Night Live actor-comedian Chris Redd and another Bronx-native, Dominican-American comedian, Vladimir Caamaño, get a few of the film's top comic lines as observers of the action in the tradition of Statler and Waldorf, or Jay and Silent Bob. Director Oz Rodriguez also directs Saturday Night Live and is a native of the Dominican Republic.

Vampires vs. The Bronx is built not so subtly on a storyline of urban gentrification.  The Scandinavian-blonde vampire brood seeks to seize local businesses and convert the likes of Tony's bodega to high-end retail and craft coffee.  The vampires are aided by their human familiar, Frank Polidori (Shea Wigham), who brings Italian-mob-style tough tactics to persuade property owners to sell.  Acquiring a building has the spooky side effect of allowing the vampires to enter without asking permission.  

The theme carries through as vampire leader Vivian (Sarah Gadon) stops by the bodega to peruse Tony's growing inventory of new-age super-foods and settles on a purchase of hummus.  If you can't have a sense of humor about cultural stereotypes, this isn't the film for you.

At the same time, don't expect pedantic messaging on race and gentrification to run too deep.  PG-13 Vampires vs. The Bronx means mainly to make fun.  At that, it succeeds.

Here is the trailer.

Time travel would warp tort law, attorney imagines

Austin Beast AB (Pixabay)

Tired of earthbound law constrained by the arrow of time?  Attorney, comedian, and comic book fan Adam J. Adler writes an enjoyable column on law for the aptly named Escapist online magazine.  Recently he tackled the implications of time travel in tort law.  Back in August, he considered transporter accident liability.

Time travel in a Groundhog Day-like scenario, Adler observes, would change the moral expectations of the objective reasonable person as he or she acquires additional knowledge about cause and effect through multiple iterations of the timeline.  In the end, Adler offers a theory on why we haven't yet met time travelers.  Check it out, and remember to suspend your disbelief and enjoy.

The article is Adam J. Adler, Time Travel Torts: How Law Gets Dicey When Dealing with Groundhog Day, The Escapist, Oct. 4, 2020.  

And speaking of time travel, Star Trek: Discovery season 3 premiered last night.  Here's the season trailer, if you can stand the excitement!

Court: Family of elder-care resident may use rare 'bill for discovery' to investigate how broken foot occurred

In an unusual case last week, the Massachusetts Appeals Court allowed a "bill for discovery" to proceed despite its arguable incompatibility with rules of civil procedure.

Mary T. Atchue, an elderly resident in an assisted living facility in Worcester, Massachusetts, sustained a broken foot while being moved.  In an action maintained by her family since her death, Atchue filed a "complaint for discovery," based in equity.

Marie Van den Broeck, BE (CC BY 3.0)

The court held that the complaint could proceed, despite objection from defendant Benchmark Senior Living, LLC, that the claim would not be allowed by the state rule of civil procedure for pre-litigation discovery.  Discovery processes specified by statute and rule supersede the historic bill for discovery in equity insofar as they pertain, the court reasoned, but the bill remains available to supplement modern practice where it does not pertain.

The viability of a bill for discovery is dependent on the viability of the underlying potential claim in litigation, the court further held.  Atchue has a viable theory on tolling the statute of limitations, and her claims survive her death under the state survival statute.  So a bill for discovery remains available.

I don't usually dig into civil procedure cases, but this one caught my eye because of the unusual disposition in pre-litigation discovery.  I've written with approval about the use of the access to information law, or freedom of information act, in South Africa having been used as a pre-litigation discovery device, specifically, in fact, for a potential plaintiff to investigate the possibility of negligence in healthcare services.

Shaped by the experience of apartheid, the South African law, and comparable laws elsewhere in Africa modeled on it, allow access to information in the private sector when the complainant can demonstrate sufficient need grounded in civil rights.

The court vacated dismissal and remanded.

The case is Atchue v. Benchmark Senior Living LLC, No. 19-P-125 (Mass. App. Ct. Oct. 5, 2020).  Justice Vickie L. Henry wrote the opinion for a panel that also comprised Justices Rubin and Wolohojian.

Trump supporter vs. MSNBC's Joy Reid heats up for round 2, following reversal on free speech issues

It looks like the two-year-old defamation case by Trump supporter Roslyn La Liberte against MSNBC personality Joy Reid is about to heat up.

Racial Slurs and Other Not-So-Pleasantries

Eponymous host of MSNBC's ReidOut and "one of the few Black women to anchor a major American evening news program," Joy Reid has stirred up her share of schismatic controversy (e.g., "series of homophobic blog posts" (Glenn Greenwald), "casual Islamophobia" (Erik Wemple (pay wall))).  In June and July, on Twitter and Instagram, Reid called out MAGA-hat-bearing Roslyn La Liberte at a Simi Valley, California, City Council meeting (La Liberte at 4:17:45 to 4:19:57) for, as alleged in La Liberte's complaint, "yelling racial slurs at a minor," including that he would "'be the first deported ... dirty Mexican!,'" and "making ... racist statements and ... being racist."

A well circulated image of La Liberte and the 14-year-old boy at the council meeting, showing La Liberte mocking being choked but not actually talking to the boy, lent credence to Reid's characterization and its viral duplication.  Trolling responses came fast and furious in the Twittersphere and via email to La Liberte, the latter along the lines, "'You are a dirty white woman b***h,'" and "'I’m glad everyone in the entire world knows what a racist piece of s**t you are f**k you a*****e'" (asterisks in complaint).

However, La Liberte denied yelling racial slurs, and her story is backed up by the youth himself.  He described their exchange as "civil."  At least once during the meeting, a racial slur was directed at the boy, his mother said, but it wasn't uttered by La Liberte.  Cited in the complaint, Fox 11 L.A. untangled the story (June 29, 2018).

 

'Racist,' as a Matter of Fact

La Liberte sued Reid in the Eastern District of New York on a single count of defamation.  Alleging defamation per se, La Liberte in the complaint asserted, "Accusations of racist conduct are libelous on their face without resort to additional facts, and, as proven by this case, subject the accused to ridicule, hate, and embarrassment."

That point alone, on the merits, is interesting.  When I made a similar claim many years ago, colleagues and observers told me that an accusation of racism is opinion only, devoid of fact and incapable of defamatory meaning, even if one were asked to resign one's job as a result of the accusation.  Other colleagues, whose counsel I favor, disagreed and asserted that accusing an academic of racism is akin to accusing a youth coach of a child sex offense, in that the claim will persist indefinitely if one does not powerfully contest it.  Distinction between an individual's "racism," and "institutional" or "systemic" racism might complicate the legal analysis, but popular culture has pondered that distinction only recently.

Anti-SLAPP as the Sword of Goliath

A second compelling issue in the La Liberte case is the operation of anti-SLAPP law.  Anti-SLAPP laws, which vary in their particulars across the states, typically allow a defendant to attain fast dismissal of a lawsuit that is a "strategic lawsuit against public participation," that is, a lawsuit through which the plaintiff means to use tort law to suppress the defendant's exercise of civil rights, such as the freedoms of speech, assembly, and petition.  

That sounds good, but problems with anti-SLAPP law are legion.  One big problem is that American defamation law already tilts wildly in favor of defendants, a First Amendment prophylaxis gone corybantic, such that plaintiffs cannot usually get anywhere near the requisite burden of proof without the benefit of discovery.  Anti-SLAPP procedure allows the defendant to terminate the case before discovery can even happen.  

Joy Reid (Luke Harold CC0 1.0)

Designed in principle to protect, for paradigmatic example, a grassroots environmental campaign against the might of an unscrupulous real estate developer, anti-SLAPP in reality is more often deployed by the Goliaths of the latter ilk against Davidic pursuers.  Anti-SLAPP (ab)users include President Trump, Bill Cosby, and Big Media.  No wonder anti-SLAPP is the darling of the media defense bar.  The sad thing is that it's convinced the nonprofit media advocacy crowd to play along.

The proliferation of anti-SLAPP laws at the state level has generated a circuit split over what to do with them when a defamation case lands in federal court on diversity jurisdiction.  The analysis boils down to whether anti-SLAPP law is procedural, in which case it may not override federal rules, or substantive, in which case the federal court must apply the law of the state that governs the case.  The last couple of years have seen the emergence of a circuit split on the question, though the most recent precedents (2d, 5th, 11th, D.C. Circuits, contra 1st, 9th Circuits) point to the procedural conclusion, with which I agree.  

As a result, defamation cases that would have been smothered at birth in state court are given a chance to gasp for air in federal court.  Meanwhile, media advocates, including John Oliver—with whom I am loath to disagree, but he just doesn't get it—have been pushing hard for federal anti-SLAPP legislation.  A bill is pending in Congress, and with left-wing media advocates and right-wing mega-corporations on the same side, David's death blow might be but weeks away.

La Liberte arose amid this anti-SLAPP circuit split and was, in fact, the occasion on which the Second Circuit joined the recent majority trend.  The court reasoned that the California anti-SLAPP procedure, the defamation having occurred in California, is incompatible with Federal Rules of Civil Procedure 12 and 56, governing motions to dismiss and for summary judgment.

Limited-Purpose Public Figures and the Involuntarily Infamous

La Liberte at the
City Council meeting

Also while the case rested with the Second Circuit, the court reversed the trial court on one more issue, the erroneous classification of La Liberte as a limited-purpose public figure.  That classification would compel La Liberte to prove the often fatal-in-fact fault standard "actual malice," that Reid knew her statements were false or was reckless with regard to their truth or falsity.  

La Liberte had not pleaded actual malice.  And, according to the court, her activism in speaking at city council meetings did not convert her from a private figure to a public figure.  La Liberte was never singled out in news coverage, the court observed, until after the alleged defamation catapulted her to public attention.  A defendant who is responsible for making a plaintiff infamous cannot thereafter escape liability by characterizing the plaintiff as a public figure.  

Incidentally, it's typically ironic that the media defendant here, Reid, purported to defend her free speech with the anti-SLAPP law while seeking to use the First Amendment-protected petitioning of the city council of the plaintiff, La Liberte, to defeat her effort to protect her reputation.

Enter 'the Lawyer for the Damned'

After remand to the Eastern District of New York, La Liberte terminated her representation by Wade, Grunberg & Wilson.  WG&W is a self-described "boutique firm" in Atlanta that boasts of a plaintiff's defamation practice, not a common thing, but maybe a growth area in our polarized post-truth society.  "The law of defamation is nuanced, peppered with landmines under the First Amendment, Anti-SLAPP Statutes, absolute immunities, and qualified privileges," WG&W writes on its website. "We know where those landmines are and, more importantly, how to navigate successfully around them."  WG&W notified the court of its withdrawal on September 28, 2020.

Wood, 2011 (Gage
Skidmore CC BY-SA 3.0)

The reason I suspect the case might now heat up, or at least jump on the express train to settlement town, is that on October 5, 2020, L. Lin Wood entered his appearance for the plaintiff.  Wood already had signed on some of the court papers, but he seems now to be stepping front and center.  Wood's breakthrough claim to fame was representing Richard Jewell, the man wrongly accused of the 1996 Centennial Olympic Park bombing against The Atlanta Journal-Constitution (there's a 2019 movie directed by Clint Eastwood).  His subsequent client list includes JonBenét Ramsey's parents, Gary Condit, Herman Cain, Elon Musk, and the Catholic high school student in the 2019 Lincoln Memorial confrontation, Nick Sandmann, as against The Washington Post.  Wood boasts that CBS news personality Dan Rather tagged him, "the lawyer for the damned."

The case is La Liberte v. Reid, No. 1:18-cv-05398 (E.D.N.Y. Sept. 30, 2019), reversed and remanded by No. 19-3574 (2d Cir. July 15, 2020).  I've not mentioned an ISP immunity issue in the case, on which the Second Circuit affirmed in favor of the plaintiff; read more by Eric Goldman (July 30, 2020).

Secret civil justice undermines employee rights

Pintera Studios

A story investigated by ProPublica and featured on Planet Money highlights the problem of secret justice in perpetuating the willful abuse of at-home gig workers.

I expected that "Call Center Call Out," reported by Planet Money's Amanda Aronczyk and ProPublica's Ariana Tobin, Ken Armstrong, and Justin Elliott, based on the ProPublica story, would be a sad and frustrating tale of work-from-home gig economy labor being exploited, principally by the misclassification of employees as independent contractors to reap savings in compensation, work conditions, and employee benefits.

Turns out, there is even worse dissimulation afoot.  And there are worrisome implications for the health of the civil justice system.

To work these call-center jobs, for intermediary contractors such as Arise Virtual Solutions, the not-quite-employees are compelled to sign non-disclosure agreements (NDAs), arbitration agreements, and class action waivers.  These all are enforceable, even when the workers do not fully understand their implications.

When a worker has the temerity to commence arbitration proceedings, challenging misclassification as an independent contractor, the worker wins.  In one example in the story, a worker easily qualified as an employee under the labor test applied by the arbiter.  A worker can win thousands of dollars in reimbursement of expenses—they have to pay out-of-pocket for the privilege of their training and then buy their own computers and telecomm equipment—and back wages to bring their compensation history up to minimum wage.  

But here's the rub: the workers already are bound by their NDAs, and the arbitration is secret, too.  So there is no public record of the misdeeds of the employer.  The arbitration-winning complainant cannot even tell other mistreated workers that their labor rights are being violated.

According to the reporters, the secret justice system of arbitration is actually part of the business model for enterprises such as Arise.  They can pay liability to a small percentage of workers while willfully exploiting most others.  Because of the NDAs, arbitration clauses, and, most importantly, class action waivers, a lawyer said in the program, she can fight this abuse only behind a veil of secrecy, one case at a time, amounting to thousands of cases, even though every case is winnable on precisely the same analysis.

There's a classic scene from Fight Club (1999) when the Narrator (Ed Norton) is telling an airliner seatmate about his car company's "formula" for issuing a recall only when it's cost effective, regardless of the cost of human life.  (Think GM ignition switch recall.)

"Which car company do you work for?" the seatmate asks.

The Narrator pauses, staring her in the eyes.  Then, nodding knowingly, he answers,

"A major one."

So what companies use these call centers to take advantage of the cheap and ill-begotten labor forces organized by companies such as Arise?

Major ones.  Ones you've talked to.

Have a magical day.

 

The stories are Amanda Aronczyk & Ariana Tobin, Call Center Call Out, Planet Money, Oct. 2, 2020; and Ken Armstrong, Justin Elliott, & Ariana Tobin, Meet the Customer Service Reps for Disney and Airbnb Who Have to Pay to Talk to You, ProPublica, Oct. 2, 2020.

Ciao and shalom, it's Columbus Day

It was painful and offensive to me to see the Columbus statue in Baltimore ripped down and thrown into the harbor on the Fourth of July.

I appreciated Trevor Noah's Daily Show commentary on Columbus Day, aired last week, because he recognized the meaning of the holiday to the Italian-American community.

Noah excerpted a Vox video (story), from 2018, which gave a good concise summary of how the Columbus holiday came to be.

The video describes "the legend of Columbus," and it is a legend.  Italian-American immigrants, such as my grandparents, came to embrace a legendary Columbus who bore little resemblance to the real historical figure.  Which is not to say that the legend lacked real meaning for real people.  There was a time when Italian-Americans were a "non-white" minority in America, Noah acknowledged.  The community reached out to adopt, and partly to create, a galvanizing icon.  

I studied Columbus quite a bit as an undergrad majoring in Spanish-language literature during the quincentenary of "the Discovery."  As best as we can know Columbus, which is not much, given a paucity of surviving and conflicting accounts, the truth must be that he was complicated.  People are.  He had a multiplicity of motives, some more morally laudable than others.  And probably he wasn't the sweetest sort of guy.  Crossing the Atlantic Ocean with a potentially mutinous crew of adventurers in 1492 was a rugged business, if not recklessly suicidal.  But Columbus did not invent Euro-centrism, Caucasian supremacy, or slavery.  The cultural arrogances and inhumane institutions of the 15th century were certain to encircle the globe aboard every ship that departed the continent.

Columbus statue (Brent Moore CC BY 2.0)

So my family, arriving in America in the 20th century, embraced a legend.  It wasn't a terrible choice of legend.  The first Italians to populate Baltimore sailed from Genoa, which is where Columbus probably was from.  My grandparents, who also came to America by boat, from Tuscany, revered Columbus well before the dedication of his Little Italy statue in 1984.  Through their Italian-American organizations, they contributed to the creation of the statue, which was made of marble and crafted by an Italian sculptor.  President Reagan and the mayor of Baltimore dedicated the statue in Baltimore's Little Italy, where my family first lived after immigrating.  When I was a kid, I was taken to Little Italy when my family volunteered and participated in religious rites and Italian-American festivals.  Later, and for many years, my uncle played the character of Columbus in Baltimore's Columbus Day parade, which started and ended at the Columbus statue.  I remember him decked out in cartoonish royal robes, standing atop a float mock-up of the Santa Maria, waving to smiling people, of all colors, who lined the streets.  

He stopped when it became dangerous to be Columbus.  Dangerous to celebrate our history in America, however reimagined and romanticized.

I'm not opposed to taking down statues of Columbus.  I've advocated for "fallen monument" parks, as abound in former Soviet states, Hungary's being the most well known.  They're immeasurably valuable to teach history.  They proffer powerful evidence that, try as we might to be good and to do right, morality has proven a stubbornly mutable ambition in the human experience.  

But taking down Columbus in Little Italy should have been a decision made by a cross-section of community stakeholders, not by a mob.  An effort had been under way in the Italian-American community already to raise money to move Columbus elsewhere.  The mayor of Baltimore promised prosecution of the vandals on July 9, but I've found no report of any arrest or charge to date.  The Italian-Americans who contribute still, vitally, to Baltimore's identity deserve better.  They deserve respect, right alongside every other community that has built Baltimore as a vibrant and diverse city.

As Noah observed, American history is now populated by many Italian-Americans who don't need aggrandizing legends to demonstrate greatness.  It's not too late to create the commission that should have been and to start talking about how to honor immigrant history and the City of Baltimore at the intersection of Eastern Avenue and President Street.  I don't know who, or what, might, or should, stand in "Columbus" square.  I do believe that if we work at it, we can find, or make, an icon that my grandparents would have appreciated, and at the same time raise a testament to a new story.

Oops. We accidentally linked healthcare to your job.

mohamed_hassan (pixabay.com)

I stand with the rest of the world in awestruck horror of America's stubborn insistence that access to healthcare should be a function of both one's wealth and the largesse of one's employer.

Critics of the free market are quick to conclude that it has failed the American worker.  Economic libertarians are just as quick to tout the essentiality of free contract.  Before we make any decisions about the free labor market, maybe we should try it out.  A market in which a worker can't change jobs for fear of a recurring cancer or a bankrupting accident is not a free labor market.

For the NPR podcast Throughline, Lawrence Wu set out recently to explain how we arrived at the problem of employer-dependent healthcare.  The description of the episode, "The Everlasting Problem" (Oct. 1, 2020), reads:

Health insurance for millions of Americans is dependent on their jobs. But it's not like that everywhere. So, how did the U.S. end up with such a fragile system that leaves so many vulnerable or with no health insurance at all? On this episode, how a temporary solution created an everlasting problem.

For This American Life and Planet Money, Alex Blumberg and Adam Davidson also addressed this subject back in 2009.  Their bit ran only 11 minutes, but I have never forgotten the shocking fact that "four accidental steps led to enacting the very questionable system of employers paying for health care."

Arkansas defense of healthcare law invites Supreme Court justices to weigh in on federal preemption

The State of Arkansas defended a state healthcare law in the U.S. Supreme Court Tuesday.

The state argued against federal ERISA and Medicare part D preemption of state regulation of pharmacy benefits managers, the companies that manage most Americans' prescription drug benefits.  The case affords an opportunity to see what newer justices have to say about preemption.

Preemption is a curious area of law.  Ostensibly statutory interpretation, it has overtones of federalism, as judges are called on to chart the scope of congressional intent as exercised in a power domain shared with state legislatures.  Confounding theories of interpretation, textualism is often insufficient to resolve preemption problems, because statutory schemes, such as the framework for employment-benefit regulation, may be left ambiguous as to what the scheme does not regulate, yet can be undermined by state laws with incompatible purposes.  As a result, preemption cases in the U.S. Supreme Court have been known to render splintered decisions and odd-bedfellow pairings of justices.  More than once, preemption precedent has been criticized as inconsistent and messy.

In an op-ed in The Arkansas Democrat-Gazette (ADG) in 2015, I wrote that Arkansas Act 900 raised serious and compelling questions of federalism.  I didn't pick sides—indeed, each side claims to be on the side of consumers—but I did describe the Arkansas Attorney General's dismissive response to challenge of the statute as glib.  The Eighth Circuit subsequently held the law preempted.  Forty-five states, D.C., and the Trump Administration have sided with the appellant AG, according to the ADG.

The case is Rutledge v. Pharmaceutical Care Management Association, No. 18-540 (argued U.S. Oct. 6, 2020).  Ronald Mann wrote an excellent analysis of the case, on the merits and implications, at SCOTUSblog.