Shoe on other foot as US claims sovereign immunity in foreign court for firing Malaysian embassy worker

The U.S. Embassy in KL commemorates flight MH17 in 2014.
(Embassy photo, public domain, via Flickr)

Malaysian courts have been wrestling with the big bear of foreign sovereign immunity in an ursa minor case arising from the dismissal of a security guard from the U.S. Embassy in Kuala Lumpur.

As a torts and comparative law teacher, I'm interested in how courts manage foreign sovereign immunity. But most of the cases I read are about foreign-state respondents in U.S. courts. I suppose the inverse, the United States as respondent in a foreign court, happens often. But it doesn't often make my newsfeed.

Well, this story did. The shoe is on the other foot with the United States seeking to evade the hearing of an employment grievance in Malaysian courts.

Consistently with international norms, in the United States, the Foreign Sovereign Immunities Act (FSIA) (on this blog) generally codifies sovereign immunity for foreign states in U.S. courts. But an exception pertains for "commercial activity." 

The commercial exception, also consistent with international norms, only makes sense. When a foreign country is acting like any other commercial actor, say, buying toilet paper for the mission restroom, it should not be able to claim sovereign immunity to override its obligation to pay for the toilet paper (contract), nor to escape liability for its fraud in the transaction (tort). Sovereign immunity is rather reserved for when a state acts as a state, doing things only states can do, such as signing treaties and, however unfortunately, waging war—usually.

The exception is easier understood in the abstract than in application. In a case bouncing around the Second Circuit, and reaching the U.S. Supreme Court in 2018 on a related but different question, Chinese vitamin makers claim immunity from U.S. antitrust law. The respondent makers say that they are agents of the Chinese state insofar as they are compelled by Chinese economic regulations to fix prices. U.S. competitors see the cut-rate pricing as none other than anti-competitive commercial activity. The question arises under trade treaty, but the problem is analogous to the FSIA distinction.

Also regarding China, the commercial activity exception was one of the ways that state lawsuits against the People's Republic over the coronavirus pandemic tried to thread the needle on sovereign immunity. In the lawsuit filed in 2020 by the State of Missouri against the PRC filed in 2020, the Missouri Attorney General characterized the Chinese lab in Wuhan as a commercial healthcare enterprise. The district court disagreed in July, and the AG is appealing.

In the Malaysian case, according to the allegations, the U.S. Embassy gave no reason when it terminated a security guard in 2008 after about a decade's service. The security guard probably would not be owed any explanation under U.S. law. But the Malaysian Industrial Relations Act is not so permissive, authorizing complaints to the labor authority upon dismissal "without just cause or excuse."

The opinion of the Malaysian Court of Appeal in the case hints at some bad blood in the workplace and a bad taste left in the mouth of the dismissed guard: "He said he had been victimised by another staff named Rama who had tried to tarnish his good record as he had raised the matter of unreasonable management of the security post.... He said he could not believe that the US Embassy that is recognised the world over as the champion of human rights could have done this to a security guard like him."

Inexplicably, "a long languishing silence lasting some 10 years" followed the administrative complaint, the Court of Appeal observed. "Nobody involved and interested in this case heard anything from anyone. It is always difficult to interpret silence. That silence was broken with a letter from the DGIR [labor authority] calling for a conciliation meeting [in] September 2018.... There was no settlement reached.

"Unbeknown to the workman, the Embassy had [in] March 2019 sent a representation to the DGIR arguing that sovereign immunity applied and that the matter should not be referred at all to the Industrial Court." The United States thereafter succeeded in having the case removed to the Malaysian high court, a general-jurisdiction trial court.

The high court dismissed the case on grounds of U.S. foreign sovereign immunity. The Court of Appeal reversed, holding that the case should not have been removed. The Court of Appeal remanded to the Industrial Court, a specialized labor court, to take evidence on the immunity question. The Malaysian Federal Court recently affirmed the remand, lawyers of Gan Partnership in Kuala Lumpur have reported (Lexology subscription).

Like the FSIA, Malaysian law on foreign sovereign immunity distinguishes commercial activity, jure gestionis, from state action, jure imperii. The dismissed guard argues that his was a simple employment contract, so the United States was acting in a commercial capacity and is not entitled to sovereign immunity. The United States argues that the security of its embassy is a diplomatic matter entitled to the exercise of sovereign discretion.

The case in the Court of Appeal was Letchimanan v. United States (May 18, 2021). Gan Khong Aik and Lee (Ashley) Sze Ching reported the Federal Court affirmance to the International Law Section of the American Bar Association for Lexology on August 30 (subscription). Khong Aik and Sze Ching wrote about the Court of Appeal decision, United States v. Menteri Sumber Manusia (Minister of Human Resources) Malaysia, in July 2021 (Lexology subscription), and with Foo Yuen Wah, they wrote about the high court decision in August 2020 (Lexology subscription).

Librarian Peltz-Steele joins Roger Williams Law

M. Peltz-Steele

I am overjoyed to announce that my wife, Misty Peltz-Steele, has joined the law library at Roger Williams University Law School, where she heads research services as associate law librarian for research and administration.

Before she joined RWU Law, Peltz-Steele (RWU, LinkedIn, SSRN) was assistant dean and assistant director of the UMass Law Library (where students distinguished her from her poorer half as "Dean Peltz-Steele"). Peltz-Steele holds a master's in library and information studies from the University of Rhode Island and a law degree from the University of Arkansas Little Rock. Before training for librarianship, she practiced as a legal services attorney and clerked for the public defender. A graduate of the U.S. Naval Academy, she served as an officer of the U.S. Navy and is a veteran of the Iraq War.

At Roger Williams, Peltz-Steele works alongside an alumna of my torts classes of whom I am especially proud, Brittany Raposa. Raposa serves RWU Law as associate director and professor of bar support.

Peltz-Steele is the proud parent of a film director and the magnanimous spouse of a blogger. She also makes a mean savory torte, pictured, in fact, at the top of this page.

'Dr. G' opens law program for Acropolis Group in India

Congratulations to my friend and colleague, Professor Geetanjali Chandra, LL.D., on her appointment to found the bachelor of laws program at the Acropolis Institute of Management Studies and Research in Indore, Madhya Pradesh, India.

"Dr. G," as her students affectionately know her, brings a track record of success to Acropolis. I met Dr. G when I was privileged to be a guest of Amity University Dubai in 2019. She was then founding head of the law school there. Before Amity, Dr. G was founding head of the law school at Chandraprabhu Jain in Delhi and chief learning officer in law for LedX.

In Dubai, Dr. G graciously invited me to join her media law class and arranged introduction of my wife, a law librarian, to her counterparts. The enthusiasm of Dr. G's students for their study under her tutelage was palpable, and it was a memorable joy to spend time with them.

McMahon debates incumbent insider in DA race

[UPDATE, Sept. 7, 2022.] With 90% reporting, the N.Y. Times lists Quinn prevailing with 65% of the vote to McMahon's 35%. This result is not surprising with a well known, insider incumbent. McMahon's strong showing as an out-of-the-box challenger will, I hope, keep the DA's office mindful of its accountability to the public. And I hope we'll see McMahon again in politics and public service soon.

Shannon McMahon and Thomas Quinn, candidates in the September 6 primary for Bristol County, Mass., district attorney, faced off August 12 in what South Coast Today described as a "bare-knuckles debate," sponsored by Dartmouth media and available on YouTube, below.

McMahon is a former student of my advisership.  I assessed the race in the spring.

University proctor's scan of student's bedroom before online exam violates Fourth Amendment

Nicholas Todd's Bedroom Workspace (Nicholas Todd CC BY 2.0)

In a case with implications for remote testing in all public universities, Cleveland State University violated a student's constitutional rights by requiring a visual scan of his bedroom before he took an online exam, a federal court ruled Monday.

Plaintiff-student Aaron Ogletree complained about the visual scan of his bedroom before a remote exam in General Chemistry II in spring 2021.  The court described the process of the Cleveland State testing service: 

First, at the outset of a proctored online exam, whether proctored through an electronic application or an actual person, students must “show their ID next to their face so you can clearly see and read the ID and be able to tell that that person is the same person that is on the ID.” Second, either the proctoring application or the proctor prompts the student to conduct a room scan of his environment. Other students taking the remote test can see the room scans of other students.

Live exams were not permitted at the time because of the pandemic. Ogletree, who lived with his mother and two siblings, said "that he 'currently [had] confidential settlement documents in the form of late arriving 1099s scattered about [his] work area and there [was] not enough time to secure them,'" the court reported. "The proctor testified that she did not see any tax documents or medications."  A recording of the exam including the room scan was retained by a Cleveland State contractor.

Cleveland State sought to exempt the case from Fourth Amendment purview by analogizing to home visits by benefit administrators. The court rejected the analogy:

[T]he Sixth Circuit[] ... accurately reads this line of cases as applying to a fairly distinct set of circumstances materially different than those at issue here: making welfare benefits contingent, for all recipients, on a limited and consensual search to confirm expenditure of the funds for the interest of a child. In contrast, ... this case involves the privilege of college admission and attendance and does not involve a benefit made available to all citizens as of right. Additionally, the record here shows a variable policy—enforced, unevenly, in the discretion of a combination of proctors and professors—of using remote scans that make a student’s home visible, including to other students, with uncertain consequences.

In the Fourth Amendment reasonableness analysis, Cleveland State pointed to Supreme Court precedents that have been generous to K12 public school officials in searching and drug testing students and their possessions. The court agreed with the plaintiff that an adult attaining a higher education by choice is a different matter from the custodial relationship of a school to a minor child.

The room scan moreover was an ill fit with the aim of exam security. Students were able to access their cell phones and to leave the camera view during exams. And the school could have required papers instead of exam, the court suggested.

Cleveland State is hardly the only university to use room scans. Room scans have been touted as a way of ensuring the security of remote exams. Proctoring contractors might use the technique without a university realizing it. And like other remote services precipitated by the pandemic, remote exams might persist for sake of convenience.

Bar exam authorities typically are public entities, too, subject to the Fourth Amendment. The LSAC that administers the law school admission test (LSAT) is a nonprofit corporation, not a public entity, though there might be Fourth Amendment implications if a public law school requires the LSAT for admission. Either way, it's a bad look for an education gatekeeper to violate privacy.

The LSAC partly averts the privacy problem by requiring test takers to clear their environment of distracting or potentially compromising items. Proctors visually inspect only the test taker's workspace. Despite, or even with, such more limited protocols, law exam administrations in the US and UK have generated ugly headlines about students unable to urinate in privacy. Suffice to say, remote testing security is a work in progress.

The case is Ogletree v. Cleveland State University (N.D. Ohio Aug. 22, 2022), the Honorable J. Philip Calabrese presiding. HT @ Monica Chin for The Verge.

Invasion of Ukraine marks six months; Russian propaganda flows despite court OK of EU media ban

#IStandWithUkraine

On July 27, the European Union (EU) General Court upheld a continental broadcast ban on Russia Today (RT).

The EU Council promulgated the ban in March 2022. The Council accused the Russian Federation of channeling propaganda through Russian-funded but purportedly "autonomous" RT in furtherance of a "strategy of destabilisation" of European countries by "gravely distorting and manipulating facts."

The regulation asserted that "propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions."  RT agents are allowed to continue reporting in the EU through research and interviews.

By "broadcast," the regulation is not talking only airwaves. The ban purports to apply across media outlets: "cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." 

I'm Team Ukraine, but the broadcast ban struck me as a curious development. It sets a troubling "kill the messenger" precedent and seems to conclude that the John Stuart Mill "truth will out" premise is hifalutin hooey.

I'm actually OK with that conclusion. When I teach free speech to students in tort, constitutional, or information law classes, I make a point of demonstrating the many flaws of marketplace theory in the real world. But closing the book on the theory as a matter of supranational regulation is an unsettling further step.

Similarly, it must be conceded that war propaganda is efficacious, notwithstanding its truth or falsity. Research and experience have confirmed that concession time and again since Edward Bernays published his classic treatment, Propaganda, in 1928. I read Bernays for a seminar in journalism school in the wake of the fall of the Berlin Wall. That study first interested me to the confounding problem of expressive liberties in wartime. 

In its July 27 judgment, the Grand Chamber of the General Court navigated these murky waters to conclude that the broadcast ban justifiably impinged on the freedom of expression. In the challenge by RT France, the Council adduced evidence to satisfy the court that RT was in fact a mouthpiece for Russian antagonism to European security. Conducting the necessity and proportionality analysis of European free speech law, long developed by the European Court of Human Rights, the general court concluded that the ban on RT appropriately furthered the twin aims of preserving order in the EU and abating the attack on Ukraine.

The court took pains to describe the RT ban consistently as temporary and to emphasize the context of Russian military aggression, thus signaling that the ruling is grounded heavily in extraordinary circumstances and has limited precedential value.

For therein lies the hazard of effectively suspending civil liberties in a time of exigency but undeclared war. Western EU ministers must be mindful that their critical populist adversaries in Hungary and Poland have restricted media freedom in the name of public order. Proceed down the slippery slope: Should we ban World Cup 2022 coverage by Qatar-funded Al Jazeera?

Characteristically, Russia answered the EU court ruling with a threat of retaliatory restrictions on western media in Russia. But on both sides, media bans might be so much posturing anyway.

RT.com via VPN based in Dublin

The actual efficacy of the ban is doubtful, if for no other reason than the internet's famous resilience to censorship. In a study published in July, the Institute for Strategic Dialogue found that RT content was still reaching European consumers through alternative domain names and mirror websites.

It might not be even that difficult to find RT. Using my Dublin-based VPN, I just now accessed RT.com directly and through a Google.ie search without impediment.

Today, August 24, marks six months since the invasion. The International Law Section of the American Bar Association (April) is organizing a social media campaign to maintain the visibility of the war in Ukraine. Lawyers are asked to post the Ukraine flag on LinkedIn and Twitter with the hashtag #IStandWithUkraine and tags @American Bar Association International Law Section and @Ukrainian Bar Association on LinkedIn and @ABAInternatl and @Association_UBA on Twitter.

'Marketplace' features book, film, Wisconsin law class on wild risks at shuttered N.J. water park

Action Park fun in 1994
(Joe Shlabotnik CC BY 2.0 via Wikimedia Commons)

Marketplace today features a torts course about accident risk and liability at a water park.

The 2020 HBO documentary Class Action Park (2020) (trailer) told the story of Action Park, a New Jersey theme park in the 1980s and 1990s.  Here is a compelling excerpt of the film's pitch:

It was known as a lawless land, ruled by drunk teenage employees and frequented by even drunker teenage guests. The rides were experimental and illogical, and seemed to ignore even the most basic notions of physics or common sense—not to mention safety.

Let’s put it this way: There was an enclosed tube waterslide that went in a complete loop—and that wasn’t even close to the most dangerous ride at the park.

Lying somewhere between Lord of the Flies and a Saw movie, Action Park is remembered as a place so insane and treacherous that, decades later, anybody who ever stepped foot in it is left wondering whether their memories could possibly be true. It became a nearly perfect breeding ground for urban legends and myths.

And then there was the park’s founder: A genius madman who was willing to break any rule to bring his vision to life, including the creation of a fake insurance company in the Cayman Islands to circumvent insurance regulations. As cunning as he was criminal, Action Park became the pure expression of his particular worldview, which valued self-responsibility above all else—including basic safety measures and physically practical rides.

There is a book, too: Action Park (2020) by Andy Mulvihill and Jake Rossen.  Andy Mulvilhill is the son of the "genius madman," Gene, who died in 2012. Andy wrote a narrative about his father in Esquire in 2020.

Attorney Bill Childs, adjunct professor at Mitchell Hamline Law School and assistant general counsel at 3M, has taught a course about Action Park, Recreation and Risk: no doubt an informative exploration of how the tort system is supposed to regulate social and economic activity and how its dysfunctions often cause it to fail. For the Marketplace story, David Brancaccio interviewed Professor Childs.

I start Torts I each fall with consideration of the relationship between the thriving market in extreme supports in New Zealand and the suspension of tort litigation in favor of the nation's administrative accident compensation system. N.Z. bungee-jump entrepreneur A.J. Hackett told Australian Broadcasting in 2012 that he closed his Las Vegas franchise because of frivolous litigation. I have doubts about the frivolity of the claims, but there's no doubt that the threat of tort litigation in the United States calls on business models to moderate risk, for better and for worse, more than they might have to in other countries. In the same vein, I am keen myself to learn more about what went wrong or right in claims arising at Action Park.

Theme parks, because they aim to entertain the public at large, not especial risk takers, do not trigger the rare preservation of implied-assumption-of-risk doctrine (IAOR) that pertains in sport, sometimes to deprive even amateur athletes of a cause of action. In U.S. jurisdictions today, IAOR is largely superseded by the adoption of comparative fault, a partial defense. But athletes knowingly engage in a suspension of the social contract, voluntarily undertaking a degree of risk that the general public ordinarily does not.  So some jurisdictions preserve IAOR for that occasion.

The inapplicability of IAOR to Action Park risk is on my mind because of a recent article in which Toronto attorney Will Keele and Windsor law student Keanin Parish revisited a 1993 case, Hall v. Hebert, in which the Supreme Court of Canada preserved IAOR in a non-sporting context. After "equally drunk" Hall and Hebert's Pontiac "muscle car" dropped 30 feet into a ditch in 1986, Hall sued Hebert for having let him drive. On those facts, the court favored volenti, a functional equivalent of IAOR, as a complete defense over comparative fault as only partial defense. In other words, Hall had it coming. Keele and Parish opined that that conclusion squares with later cases in the 21st century that preserved IAOR as a defense against injury claims arising in golf and hockey.

The extremity of risk at Action Park shows that the line is not so bright between IAOR preservation for the plaintiff who consents to risk and the abolition of IAOR for the plaintiff who engages with risk unreasonably—or, I might say, between informal sport and general-public thrill-seeking. Were Action Park's "drunker teenage guests" so clearly different from Hall? The salient distinction arises less in the plaintiff's subjective consent and more in the nature of the risk known to arise from the activity the plaintiff undertakes. A car crash is a known hazard of drunk driving, but even a drunk theme park rider does not expect the ride to be operated unsafely—usually. At some point—"memories could possibly be true"?—the distinction runs out. 

I have not had an HBO subscription for a while, but if we sign up later this month for House of the Dragon, I'll check out Class Action Park, too.

NBC resists TV free market, overcharges U.S. viewers: PL football costs $20 in Canada, $70 in United States

Each year, I become freshly enraged at the cost of seeing Premier League football in the United States, a ready example of antitrust non-enforcement in the communication sector.

The Sporting News had the audacity, or stupidity?, to describe NBC carriage of PL matches in the United States as a "luxury." I guess it is, a luxury only the rich can afford. To follow one's team, one must, at minimum, subscribe to NBC partner FuboTV for $70 per month. Access via FuboTV costs just US$20 per month in Canada.

The tangled cross-ownerships of what used to be broadcast TV are indicative of the dearth of consumer protection in the area. NBC "competitor" CBS (Viacom) owns a stake in FuboTV. The legacy broadcasters are using their weight in contracting power to lock down content in channel consolidators that emulate the old cable TV business model, by which consumers were compelled to overpay for a sliver of content in a library they didn't want. Hardly the free market promise of streaming.

But the FCC long ago left the helm unmanned on consumer protection when broadcasting gave way to cable. And the FTC and DOJ have had little interest in expanding their purview in times of corporate-captured governance. As usual, the United States purports to model free market capitalism in an oligopolized market that is anything but.

FuboTV in Canada at left, United States at right.
The package in Canada has fewer channels,
but if PL is all you want, that's not an option.

Tortfeasor Parking Only

I'm not sure what's happening in the illustration on this sign, but it sure looks like a tort.

Photo near Vista do Rei, São Miguel, Azores, by RJ Peltz-Steele, CC BY-NC-SA 4.0. HT @ Chris Becker.

Oh brings dispute resolution skills to UCLA

Dean Oh selfie in his virtual office
(© Hyun C. Oh, licensed exclusively)

Hyun Cheol Oh, my friend and former student, has joined the higher ed ranks as an assistant dean of students at the University of California Los Angeles (UCLA), I am immensely proud to report.

Dean Oh is a 2010 alumnus of UCLA, where he earned a bachelor's in international development studies, and of the law school where I work, where he was the founding president of the campus chapter of the Asian Pacific American Law Student Association (APALSA). He also holds a master's in education, culture, and society from the University of Pennsylvania. In his 2014 master's thesis, Multiculturalism in the Republic of Korea, Oh examined approaches to multiculturalism in South Korean civic education.

At UCLA, Oh is putting his legal training to work, specializing in dispute resolution within the offices of the dean of students and of student conduct. Oh lives in Los Angeles with his family, which includes his better half, the profoundly gifted pianist Inhyun Lee.

The Bruins are lucky to have Dean Oh on their team.