Tuesday, October 5, 2021

Unregulated, 'Dark Waters' chemicals persist in cookware, clothing, sickening people, environment

Comedian and social critic John Oliver's latest top story on HBO's Last Night concerned PFAS, the artificial chemical substances behind non-stick coatings on cookware and incorporated into food wrappings and textiles, known to be highly dangerous to human health.


The stuff persists, Oliver explained, in new, unregulated, and unlabeled formulations, despite a horrific track record of illness, from obesity to terminal cancer, and environmental damage.  Oliver related recent history by quoting parts of the landmark New York Times Magazine feature by Nathaniel Rich in 2016, "The Lawyer Who Became Dupont's Worst Nightmare."  That piece inspired the unsettling 2019 feature film Dark Waters.  Oliver also excerpted a 2018 documentary, The Devil We Know.

PFAS, a "forever chemical" that persists in the environment for thousands of years, is now in the blood of virtually all Americans.  Food wrappings and clothing are our greatest risk, Oliver explained, and there is no labeling to warn us.

I just caught this on a spot-check. Adiós, sartén.
In my household, since Dark Waters brought the issue to our attention, we've exclusively adopted silicone tools to use with non-stick-coated cookware.  And at the first sign of scratching, out goes the pan or pot: a pricey luxury we are lucky to be able to afford, while we only worsen the environmental problem.  We have lately been investigating non-stick alternatives, and Oliver has ignited the gas burner under us to get moving on that.

PFAS is in the water supply, too, sometimes in alarming doses, 70 parts per trillion (ppt) being the EPA's recommended maximum concentration in drinking water.  Oliver pointed viewers to a "PFAS Contamination" interactive map created by the NGO Environmental Working Group.  The map is intriguing and informative to play around with, as it compiles water quality data from around the country.

But the most frightening takeaway from the map is the data it does not contain.  Data collection is hit or miss.  The closest results to me in East Bay Rhode Island come from a small school serving only 40 persons (4 ppt), a Massachusetts water district serving 13,627 persons (20 ppt), and the Pawtucket (R.I.) water system, serving 99,200 persons and reporting a PFAS excess at 74 ppt.

My local water authority, Bristol County (BCWA), says my water rather comes from Providence, which is not on the EWG data map, and where water quality reports appear to be missing.  It further undermines my confidence in the system that BCWA has been wanting to build a pipeline to Pawtucket, which offers, BCWA says, "another source of excellent quality water."

At last, Europe is moving ahead with regulation; I hope that will spur the United States to follow suit.

[UPDATE, 17 Oct. 2021:  Providence Water sent me a copy of the 2020 Water Quality Report in the mail. As anticipated by Oliver, there is no mention in the report of PFAS.]

Saturday, October 2, 2021

Sheriff FC tells two tales, because that's football, life

Selfie, today (RJ Peltz-Steele CC BY-NC-SA 4.0)
The Sheriff Football Club from Tiraspol in Transnistria, Moldova, defeated western European powerhouse Real Madrid, at home at the Bernabeu, in Champions League football last week.

Coincidentally, I've lately been sporting my "Sheriff" ball cap.  I wrote about Transnistria after my visit there, and to Sheriff's 12,000-seat stadium in Tiraspol, two years ago: "Breakaway state of Transnistria might model new Russian sphere of influence" (Dec. 16, 2019).

It's interesting to see how media outlets describe Sheriff's geographic home.  Most I've seen say "Moldova," which, I guess, is what you find if you look at a political map.  Wikipedia describes Tiraspol as "the capital of Transnistria, a breakaway state in Moldova."  Only in an Al Jazeera main headline did I see exclusive mention of Transnistria.  The subhede then started, "Football club from a pro-Russian separatist enclave in Moldova."

After I crossed into Transnistria and showed my papers to the heavily armed border guards to get my 24-hour visa in a flurry of stamps, I didn't feel like I was still in Moldova.

Most media outlets have not picked up the political thread on the upset story.  In one exception, Sheriff's road to Champions League glory is well contextualized by Gab Marcotti for ESPN FC.  He observed that none of the Sheriff players are Moldovan or Transnistrian—but before one "get[s] high and mighty about national identity, please consider that at the final whistle, there were exactly zero Spaniards on the pitch."

Is the Sheriff-over-Real-Madrid story "a 'fairy tale' or a sad reflection"? Marcotti wondered.  On the one hand, there is the peculiar joy of football as sometimes, or seeming, social leveler:

Let it be a reminder that ordinary players, on an ordinary Tuesday night, can walk into the temple of football and knock it down, like Samson back in the day. That's part of the appeal of this sport. It's low-scoring, it's mano-a-mano, and the gap between superstars and extras may be huge over time, but on any given day, it can be tiny and anything can happen.  

Marcotti drew on a Twitter thread from near-Tiraspol-born, ethnically Russian, now Baltimore, Md.-based sportswriter Slava Malamud to illustrate the other hand:

[Sheriff] have been Moldovan champions in 19 of the past 21 years, they have the country's only modern stadium and they're bankrolled by the Sheriff corporation, a conglomerate that includes Transnistria's only supermarket chain, gas station chain, telephone network, TV channels, publishing house and distillery. The owners have close ties to the local government, which, in turn, is funded and protected by Russia. This isn't just a company team; it's a company town in the company enclave of Transnistria, and you can't shake the feeling that this is what it takes for "fairy tales" like this to take place in the modern game.

Football is metaphor.  What happens on the pitch, especially when recounted by capable journalists, is contradiction, because contradiction is football, and football is life.  Sheriff is fairy tale and sad reflection.  In the same way that pride and frustration are fast friends.

Undefeated in the group stage, Sheriff now leads UEFA Champions League Group D with wins over Real Madrid and Ukraine's Shakhtar Donetsk.  Sheriff will face Inter Milan, in Milan, on October 19, again putting the fairy tale to the test.

(Below, BT Sport tweet from Sheriff's August win over Dinamo Zagreb to reach the Champions League (retweeted by Malamud)).

Friday, October 1, 2021

Boston flag scrap heads to Washington

Three flagpoles at Boston City Hall (photo by Daderot CC0 1.0)
A Boston First Amendment flag-flying case is Supreme Court bound.

The case centers on three flagpoles at Boston City Hall.  The city flies the U.S. flag and POW/MIA flag on one pole, the Massachusetts flag on the second, and usually, the city flag on the third.  However, the city occasionally replaces its own flag with another.  The city refused a request by Camp Constitution, a religiously oriented civic organization, to fly the Christian ecumenical flag.

The First Circuit, affirming the district court, ruled for the city.  The court applied the government speech doctrine, holding that the third flagpole was reserved for the government's own speech, not opened as any kind of public forum for private speech.

The decision was supported by the testimony of city commissioner George Rooney, who said that he reviewed applications for flag raising for "consisten[cy] with the City's message, policies, and practices." The city moreover relied on its own First Amendment obligation not to establish religion.

Camp Constitution maintains that the application process expressly dedicates the flagpole as a public forum, so the First Amendment public forum doctrine should pertain.  In a public forum approach, the appellant reasons, exclusion of the ecumenical flag would be an impermissible discrimination against a religious viewpoint.

As the parties' positions demonstrate, the line between government speech doctrine and public forum doctrine is not always bright.  The government has the power to utter its own messages; think of Nancy Reagan saying, "Just Say No," or President Biden telling people to get vaccinated.

But when government opens a forum for public participation, its ability to censor within the forum is limited to setting the parameters of the forum.  Censorship of messages based on content must satisfy heightened First Amendment scrutiny, and censorship based on viewpoint is generally disallowed.  The paradigm is a bulletin board in a city park where the public is invited to post flyers.

Forums can be metaphysical, too.  Public forum doctrine was employed to limit President Trump's ability to excommunicate Twitter followers.  Tumultuous litigation over vanity license plates in the states have tugged back and forth across the government speech-public forum line, depending on how the government sets up the program.

The problem here is in large part of the city's own making, because, the First Circuit told us, "the City had no written policy for handling flag-raising applications. What is more, Rooney had never before denied a flag-raising application."  So Rooney was processing "applications," when "applications" were not really a thing.

Three months after Camp Constitution initiated litigation, the city adopted a written policy.  The first rule of the policy, on which the city now relies, "forbids the 'display [of] flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.'"

The city's position is not helped by its history of flying a lot of flags.  The court recounted:

In a twelve-year period (from June 2005 through June 2017), the City approved 284 flag-raising events that implicated its third flagpole. These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as "gay pride"). The City also has raised on its third flagpole the flags of other countries, including Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey. So, too, it has raised the flags of Puerto Rico and private organizations, such as the Chinese Progressive Association, National Juneteenth Observance Foundation, Bunker Hill Association, and Boston Pride.

The city balked, it said, when faced with a first request to fly a religious flag.  The city believes that distinction bolsters its position in consistent policy and anti-establishment.  The same fact supports Camp Constitution's position, that the city is impermissibly hostile toward religion.

Flag controversies have been raging across the country.  My own hometown of Barrington, R.I., was rent in factions when, after a racially charged confrontation between residents, the town manager flew the Black Lives Matter flag at the town hall.  The United Veterans Council objected to what it perceived as diminution of the U.S. flag.  Like in Boston, the controversy was fueled by the town's lack of a policy.

The Supreme Court granted cert. in the Boston case yesterday.  Track Shurtleff v. Boston, No. 20-1800, at the Supreme Court and at SCOTUSblog.  HT @ The Volokh Conspiracy.

Thursday, September 30, 2021

Public-domain materials take legal education by storm; law librarians trace history from casebooks to 'OERs'

OER Is Sharing by Giulia Forsythe (CC0 1.0)
Law librarians Emma Wood and Misty Peltz-Steele, my brilliant colleagues (and 50% my spouse), have published Open Your Casebooks Please: Identifying Alternatives to Langdell's Legacy.

The work discusses the revolutionary contemporary movement of open-educational resources (OERs), a term, I learned, coined by UNESCO in 2002, particularly in legal education.  Here is the abstract:

Nonprofits, academic institutions, and educators have collaborated, at all academic levels, to create quality Open Educational Resources (OERs) since that term was defined by UNESCO in 2002. These open-source educational materials are in the public domain and published under an open license, meaning that they can be freely copied, used, adapted, and re-shared with the public. They include not only textbooks but supplemental educational materials in various media formats. Their value is such that even federal and state legislatures are taking note and passing laws to incentivize the creation and use of OER in both secondary and higher education. Despite the momentum in academics toward the adoption of open textbooks and supplemental materials, legal academia has been slower to embrace open casebooks. By design, OER offers a great deal of flexibility for educators and the promise of cost savings for academic institutions and students. This paper examines the modern history of casebooks and the OER movement, as well as the various OER platforms ideally suited to create open content for law courses. The authors posit that a greater understanding of OER will give law professors and students a wider range of choice and ownership in course materials.

When I joined my first casebook, published in 2006, it was still important to attach one's project to a prominent publisher, for the purpose of enhancing one's CV and bolstering the tenure-and-promotion application.  Thankfully, legal academia has started to recognize the needlessness of conventional publishing as a gatekeeper for legal educational materials.  The analysis was hastened by student sticker shock at textbook prices, which, I can attest, do not relieve authors of our day jobs.  I myself am, mercifully, no longer at a point in my career at which I need to impress anyone.  So I'm teaching Torts this year with "Tortz," my own OER in progress, at no additional charge to students.

The Wood & Peltz-Steele article will appear in 43 Western New England Law Review (2021).

Wednesday, September 29, 2021

Scholar in torts, comparative law publishes book on Chinese law, article on slow WHO pandemic response

Professor Chenglin Liu has completed two new and exciting projects of interest to lawyers and legal educators.

A torts professor on the faculty of St. Mary's University School of Law in San Antonio, Texas, Professor Liu kindly joined my Comparative Law class via Zoom in the spring to talk about coronavirus legal issues and public health regulation in the People's Republic of China.  His visit generated more discussion and questions than we had time for.

Professor Liu has now completed a landmark book, Chinese Law in Context (CAP 2021) (Amazon).  The publisher's précis reports:

Chinese Law in Context provides a unique perspective on the Chinese legal system. It first offers insight into Chinese legal history and the impact of Confucianism. Then, by examining significant scandals and corruption during the past two decades, the book analyzes constitutional law, property law, and tort law from a comparative perspective. It also covers food and drug safety laws and regulations, which are rarely addressed in other works but are increasingly critical in the context of U.S.-China bilateral trade relations.

Prof. Liu
A teacher's manual is forthcoming.

Professor Liu also has published a new article relevant to the pandemic, The World Health Organization: A Weak Defender Against Pandemics.  Consistently with Professor Liu's expertise in tort law, the article contemplates causation as between WHO management of the coronavirus and responsibility for its impact.  Here is the abstract:

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO’s delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and what could have been done—but was not done—in the early stages. Part II analyzes why the United States failed to effectively respond to the COVID-19 public health crisis. Part III concludes that the WHO did not, and in the future will not, have the power and courage to make a prompt PHEIC declaration because of institutional constraints. However, the WHO’s delay in acting was not a factual cause of the harm suffered in the United States because the Trump Administration would not have acted differently even if the WHO issued the PHEIC warning swiftly.

The article appears in 28:2 Virginia Journal of Social Policy and Law (2021).

Tuesday, September 28, 2021

Student comment calls on police unions to do their part for accountability reform, revelation of truth

Michelle M.K. Hatfield, an alum of my Torts I-II classes, has published a comment, Can Police Unions Help Change American Policing?  

This comment nicely links the need for police accountability with the right to truth, a theme better known in post-apartheid South Africa than in American policing, and suggests that police unions could do more to stimulate socially constructive reform.  Here is the abstract:

Police unions are part of the problem in American policing. Could police unions also be part of the solution? This Comment begins by putting into practice the dialectic we must achieve at a societal level by detailing the ways in which police and Black Americans have been positioned to be in conflict from the seventeenth century to the present, and by discussing the formation of police unions. American society needs truth-telling about the history and present context that drives police officers into deadly conflict with Black Americans to heal, trust, and effectuate a more perfect system for public safety. This Comment wrestles with the need to understand several truths at once: that police organized into unions in part to protect the rank-and-file from managerial abuse; that the American policing system is in many ways designed and implemented against Black Americans; that police unions organized in the Civil Rights Era to protect police officers from discipline for following orders; and that deep, structural change should include police unions. Less fundamental changes that leave in place the core of American policing, without examining its racist foundations and incentives toward brutality and lethal force, will not serve to bring about lasting reconciliation. This Comment reviews several ways to improve the management of police departments put forth by labor and policing scholars and suggests that the promise of such reforms could motivate participation in a truth process. The conversation about policing reform in the United States has expanded and deepened tremendously in the past year, and it continues to evolve and take on new dimensions. This Comment urges policymakers to create a truth process as part of police reform and suggests that the process be implemented via the police unions because the voices of police organizations that represent rank-and-file officers are a critical ingredient for meaningful change.

Needless to say, police accountability has become a recurring theme and point of student interest in my courses, including Torts and Freedom of Information Law.  Ms. Hatfield gave me and my law-librarian-extraordinaire spouse Misty Peltz-Steele the privilege of feeding back on this article prior to submission for publication, but that's me riding coattails.  Ms. Hatfield prepared this superb paper principally upon her own impressive initiative and in ample fulfillment of the paper requirement of a popular course in labor law taught by my colleague in public policy, Professor Mark Paige.

The comment appears in the UCLA Criminal Justice Law Review, 2021:211.

Skillman offers free intro skills class for law students

All law students are invited to a free presentation, How to Excel in Law School, Professor Nerissa Shklov Skillman, a graduate of Berkeley Law School and the founder of The Skillman Method.

The Zoom presentation on October 2, from 11 a.m. to 1 p.m., will cover time management, case reading and briefing, note-taking, outlining, and feeling comfortable learning the law.  The presentation is co-sponsored by the Association of Black Women Attorneys.

I have known Professor Skillman for more than 15 years.  She is an expert on access to legal education.  I have seen her methods work wonders for students struggling to adjust to the competitive environment of American law school, in which many essential skills are injudiciously taken for granted in new students.

The presentation is free, but pre-registration at Eventbrite is required.  The Skillman Method is a for-profit enterprise; The Savory Tort and I offer our endorsement for no compensation.

Monday, September 27, 2021

FOIA requesters need protection against retaliation; in egregious case, court allows First Amendment theory

Intersection of state highways 42 & 61 in Conyngham Town, Pa.
(2019 photo by Mr. Matté CC BY-SA 3.0)
A bizarre FOIA case decided by the Third Circuit suggests that use of an open records act in the public interest triggers constitutional protection against retaliation under the First Amendment.

A businessperson and landlord in Conyngham, Pennsylvania, John McGee used the state freedom of information act (FOIA), called the Right to Know Act, to investigate his suspicions of financial malfeasance in town government.  A town supervisor then sent to McGee, you read that correctly, a demand for private business information, purportedly issued in the name of the town and under the authority of the FOIA.

McGee asked the board of supervisors for an explanation, and they refused to give any.  In a lawsuit, McGee alleged violation of substantive due process rights and the First Amendment.  He alleged that he did not know that the town's demand was unlawful and unenforceable.

The district court dismissed both counts; the Third Circuit reversed and remanded on the First Amendment claim.  The court explained:

In order to prevail on a retaliation claim under the First Amendment, “a plaintiff must … [prove]: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp.... (3d Cir. 2006). There does not appear to be any dispute that McGee engaged in constitutionally protected speech, nor that there was evidence of a causal link between his speech and the Right-to-Know request [supervisor Linda] Tarlecki gave him.

Only the middle prong was at issue on appeal, and the court found sufficient evidence for McGee to fend off summary judgment.  The test for deterrence is objective, the Third Circuit emphasized, so it doesn't really matter whether McGee was deterred as a matter of fact.

What intrigues me about the case is the apparently non-controverted question of element (1).  The Third Circuit opinion is ambiguous on what serves so self-evidently as McGee's constitutionally protected conduct.  McGee previously had been critical, in public testimony, of the board of supervisors for how it managed the housing code, but that doesn't seem to be the impetus for retaliation here.  His FOIA request may be construed as a petition of government or as a precursor to further public criticism.  The court did not specify.

In the law of the United States, at the federal level and in most states, requesting access to information is a statutory privilege, not a constitutional right per se.  There is a strong argument that the distinction is immaterial to attachment of the First Amendment right to petition to a FOIA request.  But de facto, in my work in FOIA advocacy, retaliation against FOIA requesters is a real and serious risk.  When asked for counsel by persons contemplating use of FOIA to investigate government, I warn would-be requesters of the possibility of retaliation.

If the First Amendment affords protection against retaliation, it's not an easily won theory.  First, there are practical problems.  Finding an attorney willing to bring a First Amendment claim against government is neither easy nor cheap.  Civil rights litigation and First Amendment law are both complicated.  Attorneys who practice in civil rights prefer the familiar patterns of discrimination and harassment based on race or gender.  In small legal communities such as Arkansas's, attorneys are loath to sue sugar-daddy government.  The thin possibility of winning attorney fees, even with a multiplier, upon a convincing legal victory is not enough to incentivize counsel.

Second, legal problems loom on the merits.  Usually problematic is the third element, causation.  The conduct here in McGee is unusual in its blatant motive.  Ordinarily, when local officials deny zoning variances, liquor licenses, or other privileges to applicants who happen to be accountability mavens, the causal connection cannot be shown to a constitutionally satisfactory certainty.

Element (1) is often a problem, too, because would-be requesters are also often would-be whistleblowers.  Under the muddled constitutional jurisprudence of the rights of public employees, the First Amendment does not preclude being fired for blowing the whistle on malfeasance in one's government workplace, much less the act of filing a state FOIA request to the same end.

There's a cruel irony of inefficiency in our First Amendment jurisprudence in that public employees are least protected when they speak of what they know best.  The jurisprudence rather favors being a team player in government.  Defectors, however righteous, must seek protection in statute, where there might be none.

When I worked on FOIA advocacy issues in Arkansas, before I moved to Rhode Island in 2011, I aided Reps. Dan Greenberg and Andrea Lea with 2009 H.B. 1052, which amended the state whistleblower protection statute with express protection for the use of FOIA.  Opponents of the bill argued that it was unnecessary, because existing law protected state employees in communicating concerns to elected officials.  My experience suggested that an elected official carelessly chosen was as likely to burn a whistleblower as to facilitate accountability.

More aggressive protection of FOIA requesters should be the norm throughout the United States.  Retaliation should not have to be as overtly wrongful as in McGee to trigger protection, whether statutory or constitutional.

The case is McGee v. Township of Conyngham, No. 20-3229 (3d Cir. Sept. 23, 2021).  U.S. Circuit Judge Kent A. Jordan wrote the opinion of a unanimous panel that also comprised Judges Marjorie Rendell and David J. Porter.  HT @ Prof. Rob Steinbuch and Prof. Eugene Volokh (Volokh Conspiracy).

Thursday, September 23, 2021

Legislative privilege shields Raimondo records against trucker subpoena in dormant Commerce Clause case

Toll gantry on a bridge in Washington
(Flickr by Wash. State DOT CC BY-NC-ND 2.0)
The First Circuit has quashed a subpoena against Rhode Island state officials, including now-U.S. Commerce Secretary Gina Raimondo, in a dormant Commerce Clause lawsuit over highway tolls supporting infrastructure.

Back in the 2010s, under the leadership of then-Governor Gina Raimondo (I'm a fan), my home state of Rhode Island was looking for cash to help with infrastructure needs.  The smallest state and an essential throughway for road and rail traffic in the vital I-95 corridor of America's Atlantic coast, "Ocean State" Rhode Island bears a burden in maintaining highway and bridge infrastructure that is disproportionately larger than the state's tax base.  The Raimondo administration installed a network of electronic truck tolls to beef up coffers.

My family travels often up and down the east coast to visit relatives, and the parade of tolls through the Atlantic states adds up to a significant expense.  But there are no passenger-car tolls in Rhode Island.  States that wish to impose tolls on federal highways had to strike a sort of deal with the devil, the devil being Uncle Sam, and Rhode Island, exemplifying founder Roger Williams's independent streak, opted out.  We held ourselves clear of Uncle Sam's sticky fingers, but then we found ourselves undermined by potholes and overrun with decaying bridges.

So when I heard about the Raimondo truck-toll plan, I admit, it sounded great to me.  The possible dormant Commerce Clause issue did gather in the dark recesses of my mind.  Anyone who tells you that we Rhode Islanders were not keen to have through-trucks pay their fair share for wear and tear on our roads and nerves as we circulate on our congested connectors is lying.  If the boon could be had without adding to my family's toll bills, I was willing to suppress any nagging concern I might have otherwise about a made-up constitutional rule.

Lawyers for the trade industry in trucking were not so generous of mind or pocket, and, after the tolls went live in 2018, they sued.  The plaintiffs argue violation of the dormant Commerce Clause, the constitutional theory that implies a federal prohibition on state action that excessively burdens interstate commerce even when Congress has not legislated a prohibition under its Article I power.

The First Circuit explained, "the Supreme Court has recently reiterated that the dormant Commerce Clause 'reflect[s] a "central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation"'" (quoting 2005 and 2019 precedents).

Flickr by Taber Andrew Bain CC BY 2.0
If the truckers can show that Rhode Island officials calculated the tolling program to burden out-of-state payers while sparing Rhode Islanders, the showing will strengthen—but significantly, not dispositively prove—the plaintiff position in the dormant Commerce Clause analysis.  I've kind of already admitted that burdening through-traffic was my reason for liking the toll program, but I'm just a taxpayer.  Unfortunately, there are some public statements by state officials indicating that they viewed the tolls the same way.

The plaintiff-truckers understandably want to dig deeper.  So they sent subpoenas to state officials, including the Office of the Governer and legislators, and to CDM Smith, a key private consultant to the state in the toll program, "RhodeWorks."  The First Circuit enumerated:

Specifically, the subpoenas sought materials relating to: (1) any efforts to mitigate the economic impact on Rhode Island citizens; (2) the expected or actual impact of the toll caps on in-state vs. out-of-state truckers; (3) the expected or actual impact of tolling only certain classes of trucks on in-state vs. out-of-state truckers; (4) the potential impact on interstate commerce; (5) alternative methods for raising funds; (6) drafts of RhodeWorks and related, failed bills, including mark-ups, comments, red-lines, revisions, etc.; (7) communications between the former Governor and legislators regarding RhodeWorks or other methods of raising funds; and (8) the public statements made by the movants and others.

State officials argued that legislative privilege required quashing of the subpoenas.  The district court was willing to override the privileges, ruling that the discovery interest outweighed officials' need of confidentiality in deliberative process.  On interlocutory appeal, the First Circuit disagreed and reversed.

The First Circuit began its discussion with the Speech or Debate Clause of the federal Constitution.  That's interesting, because the D.C. Circuit just recently applied the clause to thwart the efforts of Judicial Watch to probe the congressional investigation of the Trump Administration.  That decision made waves in the FOI community not so much for the result, but for a passionate concurrence in which U.S. Circuit Judge Karen LeCraft Henderson thoughtfully indulged the potential scope of common law access to the legislature.

However, the First Circuit opined:

Assertions of legislative immunity and privilege by state lawmakers stand on different footing. For starters, they are governed by federal common law rather than the Speech or Debate Clause, which by its terms applies only to federal legislators.... And the common-law legislative immunity and privilege are less protective than their constitutional counterparts....  That is because the separation-of-powers rationale underpinning the Speech or Debate Clause does not apply when it is a state lawmaker claiming legislative immunity or privilege.

In other words, the court recognized a constitutional constraint in horizontal separation of powers, but not, here, in vertical separation of powers, or federalism.  Nevertheless, the court reasoned that "federal common law" was constrained by the principle of comity, "[a]nd the interests in legislative independence served by the Speech or Debate Clause remain relevant."

The court was not impressed with the truckers' assertion that a federal interest in dormant Commerce Clause enforcement bolstered the private cause of action.

[Plaintiff's] argument suggests a broad exception overriding the important comity considerations that undergird the assertion of a legislative privilege by state lawmakers. Many cases in federal courts assert violations of federal law by state legislators who are not joined as parties to the litigation. Were we to find the mere assertion of a federal claim sufficient, even one that addresses a central concern of the Framers, the privilege would be pretty much unavailable largely whenever it is needed.

Here it mattered that the Governor's and lawmakers' alleged discriminatory intentions would not be dispositive of the constitutional question.  Rather, the court opined, the Supreme Court has emphasized the primacy of discriminatory effect over discriminatory purpose in dormant Commerce Clause analysis.  Intentions would prove only the latter and not necessarily amount to a constitutional offense.  Moreover, the court recited a familiar conundrum in the construction of legislative intent, that individual motives do not necessarily reveal the purpose of "the legislature as a whole."

In sum, even assuming that a state's legislative privilege might yield in a civil suit brought by a private party in the face of an important federal interest, the need for the discovery requested here is simply too little to justify such a breach of comity. At base, this is a case in which the proof is very likely in the eating, and not in the cook's intentions.

The court refused, however, to quash the subpoena against the private consultant, CDM Smith, even if state records might be revealed.  The provision of state records to a third party diminished the claim of privilege, the court reasoned, and thus rendered the question unripe for interlocutory appeal.

The case is American Trucking Associations, Inc. v. Alviti, No. 20-2120 (1st Cir. Sept. 21, 2021).  U.S. Circuit Judge William Kayatta wrote the opinion for a unanimous panel that also comprised U.S. Circuit Judge O. Rogeriee Thompson, a Rhode Islander, and, sitting by designation, U.S. District of Massachusetts Judge Douglas P. Woodlock.

Wednesday, September 22, 2021

Latest installment of Trump family litigation saga includes tortious interference claim against media

A leaked Trump 1040 from 2005
Former President Donald Trump has sued his niece, Mary Trump, and The New York Times Co. in the latest installment of intrafamilial litigation related to Mary's 2020 book, Too Much and Never Enough.

Filed yesterday in Dutchess County, New York, this latest lawsuit (complaint at CNS; Times's own coverage) mainly alleges breach of contract in the earlier settlement of litigation by Mary against Donald over the handling of the estate of Donald's father, Fred, who died in 1999.  I wrote on the course blog for my Trump Litigation Seminar in 2020 about another lawsuit, which is ongoing, by Mary against Donald over the estate of her father, Fred, Jr.; and about a suit by Donald's brother Robert, who died in 2020, which failed to enjoin publication of Mary's book.

The instant complaint alleges that Mary Trump was the source of Trump tax records published by The New York Times in its 2020 exposé.  The bits that interest me are counts of tortious interference with contract and of "aiding and abetting" tortious interference—or the civil equivalent of aiding and abetting, more accurately described as "providing substantial assistance or encouragement"—against the Times.  The complaint alleges that the Times "relentlessly" encouraged Mary to leak the tax records while knowing full well that doing so would breach her confidentiality agreement.

An intentional tort, tortious interference is not confined to business or media, though it's often classified as a "business tort," its usual injury being economic loss.  And it's often included in mass comm law treatments as a "media tort," because it's sometimes deployed against news media.

The paradigmatic case of an interference tort leveled against news media is the threat of Brown & Williamson Tobacco to sue CBS for its 1995 60 Minutes interview with whistleblower-scientist Jeffrey Wigand in violation of Wigand's non-disclosure agreement.  There is a classic scene in the feature film about the matter, The Insider, in which CBS producer Lowell Bergman (Al Pacino) loses his marbles upon admonition by CBS counsel Helen Caperelli (Gina Gershon) that truth is not a defense to interference, rather is an aggravating factor.  "What is this, Alice in Wonderland?" Bergman wonders aloud.  The instant Trump case is compelling for its similarity to the Insider facts.  

Interference as a media tort in the public imagination, or at least the lawyer-public imagination, surfaces periodically.  I wrote about the issue in 2011 when Wikileaks for a while threatened to spill the secrets of big banks.  (That fizzled.)  The high incidence of non-disclosure agreements in settlements of Me Too matters, and the former President's enthusiasm for NDAs combined to fuel another spurtive engagement with the issue in recent years. 

The issue prompts sky-is-falling missives from media because the role of, or any role for, the First Amendment as a defense to tortious interference is fuzzy.  In reality, the problem rarely gets that far.  Without unpacking the nitty gritty, it suffices to say that tortious interference has public policy built into its rigorous heuristic.  It is prohibitively difficult to press the tort against a publisher operating with at least a gloss of public interest.

The Trump complaint tries to circumnavigate that problem by accusing the Times of profit motive in its pursuit and publication of the tax records.  But the history of tort litigation against mass media is littered with failed attempts to drive the stake of profit-making through the heart of the journalistic mission.  Whatever degradations have afflicted mass media in our age of misinformation, no court is going to buy the argument against the Times on that score, at least not on these facts—cf. Palin v. N.Y. Times (N.Y. Times), in which the alleged editorial misconduct is substantially more egregious.

The case is Trump v. Trump, Index No. 2021-53963 (N.Y. Sup. Ct. filed Sept. 21, 2021).