U.S. District Judge Ann Aiken holds her own

U.S. District Judge Ann Aiken
Public domain via Wikimedia Commons

Today, March 10, is the International Day of Women Judges, and I want to nominate for recognition U.S. Senior District Judge Ann Aiken.

Judge Aiken is the trial judge in the best known American youth climate suit, Juliana v. United States (in Climate Change Litigation Database). She's been a dog with a bone in Juliana, refusing to give short shrift to the complainants despite immense pressure by Obama, Trump, and Biden administrations, and despite increasingly anguished glares of disapproval over the rims of reading glasses at the Ninth Circuit.

Judge Aiken's 2016 district court opinion in Juliana, however many times it's pummeled on appeal, is masterful (which is to take nothing away from the groundwork expertly laid by Magistrate Judge Thomas M. Coffin). Judge Aiken makes the case for climate change litigation upon the seemingly inarguable proposition that the constitutional right to "life, liberty, or property" rather implies a breathable atmosphere as prerequisite.

The wrinkle in Aiken's analysis is the implication of the courts in the policy business of the political branches. That's why Aiken drives everyone from her appellate overseers to American presidents to handwringing paroxysm. But that's what we should want: If judges are to "throw up their hands" and do nothing to avert the extinction of human life, as Ninth Circuit Judge Josephine Staton accused her colleagues on appeal in Juliana in 2020, we should want to be sure that the very best arguments have been tested.

Judge Aiken was appointed to the federal bench by President Bill Clinton in 1998. She previously practiced law in Oregon and served as a state judge. Her willingness to be bold when the situation demands came to national attention in 2007 when she ruled that parts of the USA PATRIOT Act violated the Fourth Amendment for authorizing warrantless surveillance. Also boldly, Aiken has five children.

I've edited Juliana 2016 for the forthcoming chapter 17, on government liability, of my Tortz volume 2, out in revised edition later this year, 2024. That edit emphasizes the tort and civil rights aspects of the opinion. I have prepared a different edit, if any teacher desires, emphasizing points of constitutional law for my Comparative Law class in fall 2024 and a forthcoming curriculum on global law being organized under the auspices of European Legal Practice Integrated Studies, an Erasmus program.

Can't see sports, Oscars without channel-bundle subscription you don't want? Let regulators know

Gencraft

I filed a comment today with the Antitrust Division of the U.S. Department of Justice regarding the Disney-Fox-Warner sport streaming deal, and more generally, the anticompetitive practice of streaming television sales with channel-bundling leverage and opt-out subscriptions.

---

9 March 2024

Dear sir or madam at the Antitrust Division of the U.S. Department of Justice:

I understand you are scrutinizing the Disney-Fox-Warner sport bundling agreement, and you no doubt are sensitive to the situation in televised sport since the recent congressional hearings on sport media rights.

I draw your attention to two of this weekend's top offerings in sport and entertainment, because they are demonstrative of the problem now in the streaming industry—which is to say, for our times, in the television industry.

In sports, this weekend will see a meeting of the top two, closely matched soccer teams in the world contending for the Premier League championship, Manchester City and Liverpool.  NBC owns U.S. TV rights to Premier League matches in the United States.  NBC's practice is to break up matches horizontally, across its many media properties and contractual arrangements, compelling consumers to have to pay for multiple services to follow a single team in a single sport.

The practice is worse still: high-interest matches such as Sunday's are available only with the purchase of subscription bundles to channel packages consumers do not want.  Yes, the match is available from multiple electronic packages, but each is an expensive bundle: Fubo, Sling, DirecTV, and USA on cable television.  There is no one-off purchase option, nor even a one-channel purchase option.  The price of one month on one of these services far exceeds the market value of one match, or even four weekly matches.

This leveraged bundling, compelling consumers to buy what they do not want to get what they do want, especially in a billing format of opt-out subscription renewal, is an anticompetitive practice. It is ironic that Fubo has sued in private antitrust enforcement to stop the Disney-Fox-Warner agreement. Fubo's position seems to be that it wishes to profit in the vertical market from bundling leverage, but does not want providers to profit from the same model in a horizontal arrangement. In entertainment, the Oscars air on ABC Sunday night.  Like NBC in sports, ABC is making this popular program available only through bundled channel services such as Fubo, Sling, YouTube Live, Hulu Live, DirecTV, and ABC on cable television. Again, there is no one-off purchase option, nor even a one-channel purchase option. 

Again, consumers must buy access to content they do not want, again in a billing format of opt-out subscription renewal.  Media watchers such as Vulture advise consumers to purchase a television antenna to see the Oscars on ABC broadcast.  Is it not plain evidence of ABC's anticompetitive practice that in this day and age consumers would have to regress technologically to over-the-air broadcast to avoid paying for what they do not want?  Never mind the fact that old-fashioned broadcasters have substantially dampened their signal power, so that over-the-air reception is not feasible for many Americans, even on the fringes of large markets.

Disney-Fox-Warner argue that they must forge an agreement to meet consumer demand, so their agreement is in the public interest.  They are not wrong.  However, they are right only insofar as you already have permitted an anticompetitive market to exist.  For a player in this market to succeed, it must grow bigger, must exploit horizontal and vertical integration.

The fundamental problem is that the market already is dysfunctional.  Market actors are trying to replicate the cable model in a streaming world. But the cable model came about as a function of technological limitations, not market forces.

Is it not self evident that in a free market, consumers would be able to buy what they want and not buy what they do not want?

I entreat you not to approve of the creation of another integrated market player. At the same time, I entreat you, start taking a hard look at the anticompetitive practices that already are tolerated in existing horizontal and vertical integrations, especially through the strategy of channel-bundling leverage and opt-out subscription sales.

Sincerely,

Rick J. Peltz-Steele

(for information only:)
Attorney, Washington, D.C.
Chancellor Professor, UMass Law School

Pomeranian isn't a child, but must be shared by separating human parents, court rules in equity

Pexels, licensed, by Tiểu Bảo Trương (not Teddy Bear)

Who's a good boy?

A Pomeranian named Teddy Bear will split his time between his adoptive parents since their separation, the Massachusetts Appeals Court ruled yesterday in a 20-page opinion.

"Dog" is my favorite keyword atop a Mass. court decision, and it was the first one here. Teddy Bear's legal status as beloved personal property was at issue.

In the plaintiff and defendant's separation, they agreed to share custody of Teddy Bear on alternating weeks. Over time, the arrangement soured, and, according to the plaintiff, the defendant played the nine-tenths-of-the-law card.

The plaintiff sued, and the motion judge of the Superior Court (Shannon Frison, since returned to practice) ordered that Teddy Bear's alternating schedule be restored. The defendant appealed, and a single justice of the Appeals Court (Marguerite T. Grant, as long as we're naming names) vacated the motion judge's order. (Attorney Justin R. McCarthy has some of the court docs uploaded.)

The single justice opined that "the motion judge had improperly treated Teddy Bear as if he were the parties' child." The equitable remedy of specific performance ordered by the motion judge would be suitable for a case of child custody, the single justice reasoned, but is not appropriate to the disposition of personal property. Rather, the defendant, if held responsible, would owe damages for conversion.

The plaintiff then appealed, and the three-judge panel of the Appeals Court sided with the plaintiff.  The single justice erred, and specific performance is a suitable remedy.

Alas, for poor Teddy Bear, the plaintiff prevailed not because a dog is more than mere chattel, a sentient creature capable of love for both his feuding parents.

Rather, the Appeals Court determined, it is simply so that a court possesses the equitable power to enforce a contract relating to personal property and "grant relief for delivery of a thing wrongfully withheld."  The usual rule of injunction pertains to require that "the remedy at law for damages would be inadequate."

Teddy Bear got some cred on the inadequacy analysis. Quoting the Restatements of Contracts, the court wrote that personal property may have sentimental value that well exceeds its market value: "Contracts may be specifically enforceable because they involve a grandfather's clock, even though it will not run, a baby's worn-out shoe, or faithful old Dobbin the faithful horse whose exchange value in the market is less than nothing."

Moreover, the court observed, the motion judge did not fashion an equitable order from whole cloth. Rather, the plaintiff asked the court to enforce a contract that the private parties already had worked out and already had executed on in the past. Thus, it was not so that the motion judge had treated Teddy Bear as if he were a child.

The Appeals Court decision thus accords with the contemporary trend in tort law, a welcome departure from historical common law, to quantify the value of pets to account for their emotional value to their owners, more than their mere replacement or resale value, which might be nought.

The case is Lyman v. Lanser (Mass. App. Ct. Mar. 7, 2024). Justice Peter W. Sacks wrote the opinion of the unanimous panel, which also comprised Justices Brennan and D'Angelo.

Teddy Bear's a good boy; that's who.

UK anti-SLAPP bill takes fire

The United Kingdom has an anti-SLAPP bill on the table, and lawyer Gideon Benaim has cataloged objections.

In broad strokes, the bill follows the usual pattern of anti-SLAPP, looking for free speech and public interests on the part of the defendant, which then burdens the plaintiff with proving probable success on the merits out of the gate.

Benaim published his objections on the INFORRM blog, part 1 and part 2. Some of his objections track those that I articulated in 2021 as to American anti-SLAPP statutes. I lamented the unfairness of expecting a plaintiff to meet an extraordinary proof standard such as actual malice as to falsity without the benefit of discovery. The equivalent UK approach expects a plaintiff to overcome a bare public interest defense without the opportunity to probe the publisher's process or motives.

Benaim also points out, as I have, that anti-SLAPP is as likely to be invoked by the powerful against the weak as vice versa; Goliath media giant against aggrieved individual; or, as happened, President Trump against sexual assault complainant Stormy Daniels.

Benaim is a rarity, a plaintiff's lawyer in media torts. Not that everyday aggrieved individuals will be able to score a place on his client list, which includes JK Rowling, Naomi Campbell, Roman Polanski, and Gordon Ramsay.

At least in the United States, at least, the already daunting odds of prevailing in a media tort case against a publisher with expert defense counsel on retainer causes most would-be plaintiffs not to sue at all, no matter how just their causes. They can't find counsel and certainly can't navigate complex media torts pro se. And that's before anti-SLAPP comes into play, threatening a losing plaintiff with having to pay the attorney fees of the media giant's high-dollar representation.

As I've written before, anti-SLAPP works well when it works well. Statutes just aren't drafted to ensure that that's always the case. It looks like the UK is struggling with the same problem.

Smart but unconstitutional? Trump appointee inverts Scalia maxim in striking corporate transparency law

"Corporate Transparency," Seattle
by Daniel Foster via Flickr CC BY-NC 2.0

A federal district court in Alabama ruled the Corporate Transparency Act, a key anti-corruption statute, unconstitutional upon the inverse of a maxim of the late Justice Antonin Scalia.

There's much commentary on the reading-people's internet about the significance of the March 1, 2024, decision, which is certain to be reviewed by the Eleventh Circuit Court of Appeals. The dry question of business regulation might not make the cut on the TikTok news cycle, meanwhile, but the issue is immensely important.

Effective in January 2024, the Corporate Transparency Act, part of the Anti-Money Laundering Act of 2020, which in turn is part of the National Defense Authorization Act for Fiscal Year 2021 ("NDAA"), requires most businesses to report their "beneficial owners" with the Financial Crimes Enforcement Network (FinCEN) of the U.S. Treasury Department. The information is not then public, but can be shared with law enforcement, including tax authorities.

The change in law has been in the works for some 20 years, conceived initially in the years after 9-11 to combat the financing of terrorism. The ABA Business Law Section has a deeper dive for subscribers.

Critically, the transparency around beneficial corporate ownership brings the United States into compliance with transnational norms. We had become something of a money-laundering haven in the world because of the secrecy we allow around ownership of corporations, namely (pun intended) anonymous shell corporations.

People who are keen to exert dark-money influence in politics, to hide assets, or to launder money, of course, tend to have a lot of it. So the law did not come about quickly or easily. But Congress was determined enough in the end to enact the law by a super-majority, overriding President Trump's veto of the NDAA.

Constitutional objections to the law are abundant, based in the First, Fourth, and Fifth Amendments, besides the limits of congressional power under Article I, as amended. It was only the latter theory on which Judge Liles Burke ruled. He concluded that the Corporate Transparency Act strays beyond the necessary-and-proper latitude afforded Congress for any of its constitutional powers, including the Commerce Clause and the Sixteenth Amendment taxing power. It's a problem in vertical federalism; if there is to be transparency in corporate beneficial ownership, then, it must come from the states. Burke is a Trump appointee.

I'm skeptical of the winning argument. Congress's powers in business regulation are substantial, and corruption and tax evasion are almost invariably interstate endeavors. Thus, the significance of the decision: for if it is right, a great deal more of our federal regulatory and taxing machinery will be suspect.

To be fair, small businesses objected to the added burdens of FinCEN compliance amid their already hefty costs in tax compliance, and I am empathetic. We might ought do something about that. But I suspect the legislative obstacles have more to do with keeping commercial-tax preparers in business and keeping the law arcane to shield loopholes, than with flat aversion to transparency.

The other constitutional objections are not frivolous, even if they don't hold up in the end; the rights-based theories have more romantic appeal to the classical liberal. The Fifth Amendment claim is based on due process, not so strong by itself; the Fourth Amendment claim is creative: search or seizure without reasonable suspicion. The First Amendment claim gave me pause: Compelled transparency compromises anonymous speech.

It happens that just last month, I (pro se) created a nonprofit entity to operate an academic research project. To free my New York nonprofit of minimum tax obligations—even though it has and anticipates no money—I applied for a 501(c)(3) determination from the IRS—which costs, by the way, a $275 tip to Uncle Sam.

The IRS informed me that upon approval, I will have to report my nonprofit's beneficial owners to FinCEN. It's irritating; mostly, I'm put off just wondering whether there will be yet another fee.  But it did occur to me that my nonprofit will be engaged in academic expression, and it might have things to say that will upset people in power. So there is a hint of Orwellianism in having to register my state entity with the federal FinCEN and identify my "beneficial owners"—remember, not even with any money in the mix.

At the same time, this is the uneasy balance we always have struck with the nonprofit tax registrations of First Amendment-sensitive enterprises, such as churches and issue advocates. In essence, this is the Citizens United problem, which I've always thought is more layered than it gets credit for. We have not found a principled way to differentiate Nike-as-speaker from the ACLU-as-speaker without some office of government problematically intervening to make the call.

Anyway, what attracted me to this ruling from Alabama is none of the above; rather, it was page one of Judge Burke's opinion. Have a read:

The late Justice Antonin Scalia once remarked that federal judges should have a rubber stamp that says STUPID BUT CONSTITUTIONAL. See Jennifer Senior, In Conversation: Antonin Scalia, New York Magazine, Oct. 4, 2013. The Constitution, in other words, does not allow judges to strike down a law merely because it is burdensome, foolish, or offensive. Yet the inverse is also true—the wisdom of a policy is no guarantee of its constitutionality. Indeed, even in the pursuit of sensible and praiseworthy ends, Congress sometimes enacts smart laws that violate the Constitution. This case, which concerns the constitutionality of the Corporate Transparency Act, illustrates that principle.

If that doesn't suck you into a 53-page opinion on financial regulation, nothing will.

For the time being, as of March 4, 2024, FinCEN has suspended reporting obligations for plaintiffs in the action only, including members of the National Small Business Association.

The case is National Small Business United v. Yellen (N.D. Ala. Mar. 1, 2024). The plaintiff is a 501(c)(6) nonprofit, I'm guessing a business league, though it sounds like a not-too-exciting football league.

Observers comment on Assange extradition hearings

My thanks to Assange Defense Boston for organizing the Massachusetts State House rally on February 20 (above). Assange Defense Boston posted on X a couple of clips of me (below). Read more about "Me and Julian Assange" and see my images from the event.

Here (and embedded below) is a webinar from the European Association of Lawyers for Democracy and World Human Rights about the February 20 and 21 hearings in the UK High Court of Justice. And here (and embedded below) are discussions of journalists, diplomats, and others who were in the room for parts of the hearings.

"..it's not partisanship...this is about government accountability. You can not form coherent policy positions...unless you have the info on which to base them. That's what Julian Assange is about. That's what resisting his extradition is about"
Prof. Rick Peltz-Steele @UMassLaw pic.twitter.com/9ONm9RDxVz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

"[Assange]developed this amazing idea abt freedom of information absolutism...When he founded WikiLeaks..to make the best use of this new democratizing instrument on the internet" Prof. Richard Peltz-Steele @UMassLaw, co-signee letter to @TheJusticeDepthttps://t.co/RJLoxdBue7
2/ pic.twitter.com/umiT9FAvQz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

State high court simplifies anti-SLAPP, draws picture

Notwithstanding the merits of anti-SLAPP statutes—I've opined plenty, including a catalog of problems—the Supreme Judicial Court of Massachusetts (SJC) in recent years made a mess of the state anti-SLAPP law by creating an arcane procedure that befuddled and frustrated the lower courts.

Yesterday the SJC admitted the arcanity and clarified the procedure. I'll note that one thing I like about the Mass. law is that it has a focused trigger in petitioning activity; that's not changing. It'll take me some time to work through the 50 pages of the opinion. But to my delight, there's a picture! The SJC kindly created a flow chart:

The case is Bristol Asphalt Co. v. Rochester Bituminous Products, Inc. (Mass. Feb. 29, 2024). The court then helpfully applied the new framework in another case the same day, Columbia Plaza Associates v. Northeastern University (Mass. Feb. 29, 2023). (Temporary posting of new opinions.)

The court's unofficial top technocrat, Chief Justice Scott L. Kafker authored both opinions. The court affirmed in both cases, denying the anti-SLAPP motion to strike in Bristol Asphalt and granting it in Columbia Plaza, so the lower courts waded their way to correct conclusions despite the mire.

ABA adopts academic freedom standard, but 'Crossroads' convo shows, not everybody gets it

Is the American Bar Association (ABA) "Doing Enough to Promote Viewpoint Diversity?," panelists were asked at the ABA Midyear Meeting in Louisville, Ky., on February 3.

No, I say emphatically. So I was pleased that my take was represented on the panel by Kentucky attorney Philip D. Williamson and South Texas College of Law Professor Josh Blackman.

Having made a quantitative assessment of 10 years of ABA amicus briefs in the U.S. Supreme Court, Williamson listed positions to which the ABA has committed itself. The ABA has taken positions, such as on Roe and Dobbs, that are not related to the practice of law or legal professionalism, and about which there is rational disagreement among lawyers. 

ABA briefs also take "diametrically opposed" positions, Williamson said: favoring stare decisis in Dobbs, but disfavoring it on juror unanimity; favoring state power in a Republican administration, favoring federal power in a Democrat administration; regarding tribal classifications as political rather than racial, and then, under the Trump travel ban, arguing nationality classifications as racial rather than political. One might ask, Williamson posited, "Why does the ABA care about this at all?"

The only common thread in ABA positions, Williamson said, is consistency with liberal politics. Would right-of-center lawyers feel welcome in the ABA?, Williamson asked. "No." There might be one amicus in the pile that aligned with a red-state attorney general, Williamson said, but it's "hard to find."

Williamson also criticized ABA policy on racial classifications as hypocritical. Until recently, the ABA had numerical quotas based on race in composing panels for continuing legal education (CLE) programs. The ABA backed down when the Florida Bar resisted awarding CLE credits upon a policy it viewed as unconstitutionally racially discriminatory.

Williamson observed that for ABA diversity purposes, "Asian" regards a Bangladeshi person and a Chinese person as "interchangeable." "Maybe we could fine tune how we think about race," Williamson said, "rather than how fast you sunburn in Miami." You won't read that in the ABA coverage of the event.

Williamson, Thomas, Blackman, and Rosenblum
RJ Peltz-Steele CC BY-NC-SA 4.0

Chicago attorney Juan R. Thomas said he welcomes viewpoint diversity, subject to one condition: He paraphrased James Baldwin: "We can disagree and still love each other unless your disagreement is rooted in my oppression and denial of my humanity and right to exist." (The quote is widely attributed to Baldwin, but I cannot find an original source.)

We can debate which Super Bowl team is the better, Thomas said, but not whether they play football.

I admire Thomas quite a bit, and the Baldwin quote is a self-evident truth. But it's also a red herring.

Blackman asked in response—also omitted from the ABA coverage—"if I can't oppose qualified immunity because it's not grounded in the Fourteenth Amendment, that makes me a racist?"

Thomas, who is a minister besides lawyer, also voiced a "dirty secret," that "not all people of color are progressives." He should have directed the observation to the ABA, not to his co-panelist adversaries. Their very point was that the ABA should be wary of taking politically charged positions over which reasonable, informed people disagree.

To Thomas's point, a lawyer commenting from the audience said something that resonated with me: that he personally opposes lawmakers making abortion decisions for women, but he believes that Roe was wrongly decided as a matter of federalism. That's the unpopular conclusion that I, too, came to, many years ago. I refrain from voicing it in the liberal circles of academia.

My position on affirmative action is similar. I champion socioeconomic equality and fully acknowledge systemic racism, but I so abhor government classification based on race that I cannot countenance official discrimination as a purported redress of discrimination. I rather would redress systemic inequalities through socioeconomic amelioration.

I said as much once out loud, and the r-word charges upended my life and career. An ABA accreditation site team at the time was fully informed of the matter and brushed it under the rug. One rocks the boat at one's hazard at an ABA-compliant school.

Which brings me to an interesting point and an occasion for the ABA discussion: At the time of the caucus meeting, the ABA had just signed off on new legal education Standard 208, which requires ABA-accredited law schools, such as the one where I work, to "adopt, publish, and adhere to written policies that protect academic freedom."

That only took 70 years since the Second Red Scare.

I'm keen to see whether the ABA really will follow through. ABA accreditation of law schools is nothing but a pricey protection racket. Entry costs are steep to join the club, but once you're in, you can do no wrong—almost: woe to the unfortunate straggler left to hang in the wind to prove the legitimacy of the system. The ABA is terrified of losing its monopoly power over legal education, as it did over judicial confirmation.

The kicker-quote in the ABA's own coverage of the caucus program does not induce confidence: "'I would be proud to be the last member standing of an association that fights against oppression,' [attorney and author Lauren Stiller Rikleen] stated."

Right, because that's what this is about. Standing for equality and rule of law makes me pro oppression.

The ABA Midyear panel on "Are the ABA and the Legal Profession Doing Enough to Promote Viewpoint Diversity?" comprised Williamson, Blackman, Thomas, and Oregon Attorney General Ellen F. Rosenblum. Senior U.S. Sixth Circuit Judge Danny J. Boggs moderated.

Consultant panning contractor was not 'improper' interference with lucrative reno deal, court holds

Rawpixel CC0 1.0

An architect whom homeowners hired to review their bills in multimillion-dollar renovation did not tortiously interfere with the reno contract when he advised them to terminate and hire another contractor, the Massachusetts Appeals Court held yesterday.

The devil in the details here is the element "improper" in the tort of interference. The same element, or the same concept, lives at the heart of many a business tort, and it's a difficult line to find. Indeed, the Appeals Court wrote that "improper" "has proved difficult to capture in a universal standard."

Interference with contract in Massachusetts law requires a contract or prospective business relation, knowing inducement to break the contract, interference by "improper motive or means," and harm to the plaintiff as a proximate result. Here, the architect told the homeowners they were being overbilled and urged them to terminate the renovation contract and hire a contractor the architect recommended. They did, and the terminated contractor sued the architect for interference with contract.

The fact pattern is common for generating interference claims, as the very job of the defendant is, in a sense, interference, that is, to run interference between consulting client and its contractor. Only "improper" was in dispute, and the plaintiff-contractor could not show evidence that measured up.

The plaintiff disputed the veracity and quality of the defendant's consultation and advice. But worst case, the court reasoned, the plaintiff might persuade a jury to find negligence or gross negligence. That can't be the basis of an interference claim, because then the interference tort would make actionable every negligent infliction of economic loss. 

The negligence tort usually requires a physical infliction of loss or harm. Business torts are exceptional in this regard, but they are predicated on a strong duty relationship, such as contract or fiduciary obligation. The plaintiff-architect and defendant-contractor here were not in privity of contract.

The court looked to an earlier case in which the Massachusetts Supreme Judicial Court had allowed interference predicated on deceit or intentional misrepresentation. That can suffice to support interference. But there was no evidence here of deceit. So the court pondered what improper means short of that standard.

The court leaned heavily on the Second Restatement of Torts, which suggested, besides deceit, threats, defamation, or other conduct "innately wrongful, [and] predatory in character." Inversely, the Second Restatement advises that no interference liability can arise from "truthful information" or "honest advice within the scope of a request for advice."

The latter standard fit, the court opined. And the Restatement comments elaborated, "[N]o more than good faith is required," regardless of competence. "The rule as to honest advice applies to protect the public and private interests in freedom of communication and friendly intercourse," affording latitude especially to "the lawyer, the doctor, the clergyman, the banker, the investment, marriage or other counselor, and the efficiency expert."

The court affirmed the superior court award of summary judgment to the defendant.

There's unfortunately one point of confusion reiterated in the court's opinion. The court correctly pointed to a line of Massachusetts cases approving of "actual malice" as supporting interference claims in the context of employment, when a disgruntled terminated worker claims interference against a supervisor or corporate officer for interfering with the worker's employment contract. In this context, the courts defined "actual malice" as "spiteful, malignant purpose unrelated to a legitimate corporate interest."

Common law malice

That's not what "actual malice" means, at least in the civil context. "Actual malice" generally is a stand-in for reckless indifference and is distinguishable from "common law malice," which represents spite, ill will, or hatred. It's been observed many times that "actual malice" is unfortunately named, and it would be better had there been a different term from the start. Common law malice can be evidence of actual malice, but certainly is not required. The difference can be confusing to jurors.

The Massachusetts precedents on interference in the employment context seem to have misused the term "actual malice" to refer to common law malice. OK, I guess, as long as we all know that malevolence is the one that can evidences tortious interference.

I have some doubts, by the way, about the correctness of the Massachusetts cases that apply the interference tort in fact patterns involving a fellow worker as defendant. A basic rule of interference is that one cannot be said to have interfered tortiously with a contract to which one is a party. If the defendant was clearly acting within the scope of employment, that is, as an agent of the employer, then I don't see that a tortious interference claim can arise, and there's no need to analyze impropriety. But then, I guess, the threshold requirement overlaps with the "unrelated to a corporate legitimate interest" piece of the impropriety test.

The case is Cutting Edge Homes, Inc. v. Mayer, No. 23-P-388 (Mass. App. Ct. Feb. 27, 2024) (temp. slip op. posted). Justice John C. Englander wrote the opinion of a unanimous panel that also comprised Justices Ditkoff and Walsh.

Conference on Workplace Mobbing to convene in July, aims to establish mobbing as discrete field of study

PLEASE JOIN US IN NIAGARA IN JULY,
AND SPREAD THE WORD TO YOUR NETWORKS!

The first Niagara Conference on Workplace Mobbing will convene July 22-24, 2024, at Niagara University in Niagara, New York, and registration is now open for participation and presentation proposals, in-person and hybrid.

The conference is sponsored by Niagara University and co-sponsored by the Society of Socio-Economists. Additional sponsorships are invited; please contact conference registrar Qingli Meng, in criminology at Niagara University, via the conference website.

Mobbing is a form of group abuse of an individual and has been documented in studies in sociology and related fields for almost half a century. Mobbing is associated particularly with workplaces, where persons act in concert to effect a victim's alienation and exclusion from the community.

Workplace mobbing is especially prevalent in academic institutions. A sociologist and expert on mobbing, Professor Kenneth Westhues has studied the phenomenon and why the academic work environment is especially fertile soil for mobbing behavior. Westhues maintains the website, Workplace Mobbing in Academe.

While forms of interpersonal abuse such as harassment and bullying have found traction in law and become recognized in popular culture as wrongful, mobbing has not yet come fully into its own. Mobbing behaviors are complex, involving multiple perpetrators with variable states of culpability, so mobbing is not always as readily recognizable as a more abrupt infliction, such as bullying. Like harassment and bullying victims, especially before the wrongfulness of those acts were widely acknowledged, mobbing victims tend to self-blame and self-exclusion, so might not bring mobbing behaviors to light.

A purpose of the planned conference, therefore, is to disentangle mobbing from adjacent behaviors, such as bullying, harassment, and ostracism. By recognizing mobbing as a discrete phenomenon and focusing study on mobbing as a cross-cutting scholarly sub-field, fields such as psychology, economics, organizational management, employment law, and criminal law can recognize and respond to the problem of mobbing more effectively, bringing relief to victims and preventing victimization to begin with.

A welcome and invitation at the Niagara Conference on Workplace Mobbing website explains the conference mission better than I have here, as resources available through Westhues's website well explain mobbing and its defining characteristics.

I am chairing the Scientific Committee of the Niagara Conference on Workplace Mobbing . The interdisciplinary committee also comprises Dr. Meng; Dr. Westhues; Robert Ashford, in law at Syracuse University; Walter S. DeKeseredy, in criminology at West Virginia University; Joseph Donnermeyer, in criminology at Ohio State University; and Tim Ireland, provost at Niagara University.

The conference is grateful for technical and logistical support from Niagara University's Yonghong Tong, PhD; Michael Jeswald, MBA; Valerie Devine, assistant director of support and web development; Michael Ebbole, audio visual systems coordinator; William Stott, audio visual systems specialist; and Chang Huh, PhD.

The Niagara Conference on Workplace Mobbing is a project of Conference on Workplace Mobbing Ltd., a New York nonprofit organization.

Parks group challenges soccer stadium under state constitutional right to environmental conservation

A Boston lawsuit pits parks against soccer, tying in knots fans of both such as me.

The Emerald Necklace Conservancy on February 20 sued the City of Boston and Boston Unity Soccer Partners to stop the redevelopment of White Stadium to host a women's professional soccer team. 

(UPDATE, Mar. 25: The Superior Court on March 22 denied injunction of the redevelopment project. E.g., WBUR.)

What's compelling about the case as a matter of urban redevelopment arises from the fact that a stadium is already there. The conservancy is not trying to get rid of it. Though there is tentative objection to the footprint of the redevelopment project in Franklin Park, the complaint focuses on the repurposing of the stadium for the benefit of private investors, to the exclusion of public use.

Everyone agrees that White Stadium is in sore need of refurbishment. The 1945 construction has a storied history going back to Black Panther rallies in the 1960s. Its present state of deterioration for age is evident. Naturally, local government is keen to link arms with private investment. Boston Unity makes a heckuva pitch (pun intended) in a town willing and able to support an entrant in the expanding National Women's Soccer League.

Site plan in complaint exhibit.

However, the project, which Boston Unity characterizes as "a first-of-its-kind public/private partnership," will exclude the public from the redeveloped area on game days. That includes the expulsion of local high school times for their 10 to 12 games per year, according to the Dorchester Reporter. At the same time, city officials say other stadium uses, such as a track, might see more public use. 

The conservancy and residents say that the project has been moving too fast for them to study and comment, and that the headlong rush violates article 97 of the Massachusetts Constitution.

That's another eyebrow-raising point in the story. Article 97 of the Massachusetts Constitution is worth a read:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

The general court shall have the power to enact legislation necessary or expedient to protect such rights.

In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes.

Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.

Voters approved Article 97 in 1972. That's the same year as the federal Clean Water Act, and about halfway in between the Clean Air Act and Love Canal.

The "right to a clean environment" is a hallmark of contemporary human rights discussion, sometimes grouped in with "third generation" human rights. In this sense, notionally, Massachusetts was ahead of its time.

But like statutory expressions of environmentalism, Article 97 was not understood to ground an affirmative right, rather a negative right to prevent government from repurposing conserved land without legislative approval. The Supreme Judicial Court (SJC) entertained the constraint of Article 97 in cases in 2005 and 2013, but didn't find that the local governments in those cases had dedicated land to public purposes. The SJC did constrain local government in a 2017 case. 

The 2013 and 2017 cases might prove instructive in the White Stadium matter if the case progresses. In Mahajan v. Department of Environmental Protection (Mass. 2013), the court distinguished land taken for "conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources," which triggers Article 97, from land taken urban renewal, that is, "for the purpose of eliminating decadent, substandard or blighted open conditions." In that case, the Boston Redevelopment Authority was able to commit a part of Long Wharf in Boston Harbor to a private redevelopment project without legislative approval under Article 97.

In Smith v. Westfield (Mass. 2016), the court decided that the City of Westfield had dedicated a parcel of land, 5.3 acres comprising a playground and two little-league baseball fields, to serve as a park, so was constrained by Article 97 before the city could build a school there.

In Smith, the court opined that Article 97 would attach only "there is a clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park." The court also acknowledged that the analysis fact intensive.

On the face of it, Smith looks like the better fit with Emerald Necklace. The land is clearly dedicated to park use and has been used as a park. The baseball fields and playground in Smith show that a recreational use can include a structure, such as the stadium.

At the same time, there's a viable counterargument in the re- of the White Stadium redevelopment. The city will argue, I expect, that it's not changing the purpose of the land, i.e., its dedication to recreation. A stadium is and will remain. The city is just improving the land to do recreation better.

The problem then boils down to that "first-of-its-kind public/private partnership": whether the private end of the partnership means that the land is being "otherwise disposed of" within the meaning of Article 97.

I've written about transparency and accountability in foreign development specifically amid the challenges of privatization and quasi-privatization. So it's fascinating, if it shouldn't be surprising, to see this problem arise in my own backyard. I wonder as well whether there ever might be a future for Article 97's purported "right to clean air and water" that amounts to more than a procedural hurdle in property development.

See more about Boston's remarkable 1,100-acre Emerald Necklace park system, designed by architect Frederick Law Olmsted, with Will Lange on PBS in 2014.

The case is Emerald Necklace Conservancy, Inc. v. City of Boston, No. 2484CV00477 (filed as 24-0477) (Mass. Super. Ct. filed Feb. 20, 2024). Emerald Necklace asked for a temporary injunction. Hat tip @ Madeline Lyskawa, Law360 (subscription).

Frum invokes Judge Learned Hand on self-doubt to build case for 'uncanceling' Woodrow Wilson

Woodrow Wilson, 1912
Library of Congress

In the March Atlantic David Frum pleaded for the "uncanceling" of Woodrow Wilson and gave a shout out to the great Judge Learned Hand.

Frum exhibited his usual eloquence in pleading for understanding that people are complicated and we ought not throw out the baby with the bathwater. Wilsonianism has guided American foreign policy for a century and has done a lot of good in the world, Frum argued persuasively. One cannot pretend away that legacy in an eagerness to embrace the admittedly ample evidence of Wilson's racism and bigotry.

We ought be wary as well, Frum observed, that right and left both are eager to "cancel" Wilson. The left for his racism, of course. The anti-regulatory right, meanwhile, sees Wilson as a forefather of both globalism and the administrative state. Besides his vision for what would become the United Nations, Wilson signed the Federal Trade Commission Act into law in 1914. With the Chevron doctrine presently withering in the Supreme Court, lefties, be careful what you're canceling.

An aside on the subject of left and right: The Economist published a fabulous opinion piece last week that's a balm for classical liberals such as myself who have been rendered ideologically homeless by the ironic Republican embrace of "the state [as] savior." (Every American libertarian, by which I mean most Americans, should read it, so it's unfortunate that it's paywalled.)

In the course of his reasoned plea, Frum further observed:

We live now in a more polarized time [than Wilson's], one of ideological extremes on both left and right. Learned Hand, a celebrated federal judge of Wilson’s era, praised "the spirit which is not too sure that it is right." Our contemporaries have exorcised that spirit. We are very sure that we are right. We have little tolerance for anyone who seems in any degree wrong.

Hear, hear. The line comes from Hand's famous "Spirit of Liberty" speech in 1944. Read more at Judicature.

Torts students know Learned Hand for his also famous formula to describe rational choice as a weighing of burdens against the risk of loss. Hand was prolific, and his subtle influences can be traced through many fields of American law in the 20th century. Indeed, see The Atlantic in 1961.

Just yesterday, as it happens, I was talking after class with a 1L Torts student about the imperative that legal education empower a student to challenge one's own assumptions. I know what you're thinking, but it was she who made the point. "We should question ourselves," she said. "We should never stop questioning."

Wise woman.

Speaking of wise women, hat tip @ my wife for spying The Economist item.

Incidentally, the cover story of the March Atlantic concerns police response to mass shooting events, focusing on, but definitely not limited to, the Deputy Scot Peterson matter at Marjory Stoneman Douglas High School in Parkland, Florida. In June 2023, Peterson was acquitted on all charges after a trial in which authorities alleged felony child neglect and criminal negligence. In January 2024, a Florida court denied a defense motion to dismiss civil suits by 17 families against Peterson, clearing the matter for trial.

Frum's article is Uncancel Woodrow Wilson, The Atlantic, Mar. 2024 (online Feb. 2, 2024) (subscription).

South American visitor wonders at lawyer billboards; artist imagines canine advocates instead

A young man I know from Paraguay recently visited the Philadelphia area for a week, his first time in the United States.

I texted to check on him when he returned home to Asunción. He had a great visit, was home safe and exhausted, he texted back, and had seen so much, it would take a while to process it all.

But one question, he wrote.

 

Hmm.

I guess Americans get in a lot of accidents, I said. 

No, actually, I just texted, "🤑." I think that covered it.

Lawyer advertising is the theme of some delightful imaginings in a canine vein by Kensington Campbell: Instagram embed below. See more there or on TikTok. Hat tip @ Molly Sullivan and Frances Fendler.

View this post on Instagram

A post shared by Golden Retriever | Kensington (@kensingtoncampbell)

'Gripping' Ugandan documentary makes Oscar cut

Uganda has its first ever Oscar-nominated film, a documentary about political persecution and daring resistance to the Museveni regime.

Bobi Wine: The People's President tells the story of musician Bobi Wine's transition from pop culture to political activist running for the presidency of Uganda against entrenched incumbent Yoweri Museveni. En route, Wine is arrested many times, brutally beaten, and effectively exiled from his homeland.

Here is the trailer.

For On the Media, Brooke Gladstone has a compelling interview with Wine himself and director Moses Bwayo.

In following Bobi Wine for the film, the film crew was itself in peril. If behind the scenes was as breathtaking as Bwayo described, I can't imagine how unnerving the end product must be. Wine briefly spoke on OTM of his torture by Ugandan authorities, and it's not easy to hear, before he himself stopped and said he could not talk it about it more.

It happens that my all-time favorite documentary to date is Call Me Kuchu (2012), which deals with the detestable persecution of the LGBTQ community in Uganda. Call Me Kuchu is hard to watch, but I come away from it every time thinking it should be required viewing for humanity: a lesson in immorality, the horror that results when the great commandment of Matthew 22:39 is disregarded. 

I note that it's not clear Wine himself, for all his persecution, quite gets the takeaway on the LGBTQ question. But he might have come around, and he's probably right that the Museveni regime leverages past transgressions against him.

Anyway, I am keen to see Bobi Wine, which is streaming in the United States on Hulu and Disney+, where the film is touted as "gripping." Fortunately, the film can be seen in Africa and even has been screened in Uganda. Wine told OTM that National Geographic has made the film available for streaming throughout the continent.

Shockingly, Wine told OTM that he is intent on returning to Uganda. Much as I would like to see change for Uganda—I've traveled there, and it's a magnificent country—I hope Wine takes to heart the lesson of Alexei Navalny and well considers his timing.

UPDATE, Mar. 4: I've since seen the film. Two thumbs up, and prayer for Uganda.

Student media combat criminalization of speech

The criminalization of journalism is the worry at the heart of the Julian Assange case, as a UK court mulls the possibility of his extradition to the United States to face Espionage Act charges, essentially for publishing truthful information that he lawfully obtained (more).

Today is Student Press Freedom Day, a day to recognize the important First Amendment rights and vital Fourth Estate function of journalists in schools, colleges, and universities. 

Speech on college campuses, if more in a protest vein than a journalistic vein, has seen lately a wave of efforts at criminalization. Charges might not be on the scale of the federal Espionage Act. But the deployment of criminal law in the suppression of speech is bad news at any level.

Student journalism came face to face with the criminalization of protest speech recently at Northwestern University.

The Intercept reported on February 5 that students at Northwestern University had embodied their pro-Palestinian protest in a parody of The Daily Northwestern newspaper. The parody was regarded by other students and members of the community as offensive and antisemitic.

The newspaper publisher—a nonprofit comprising alumni, faculty, staff, and students, and distinct by design from the student editorial board—complained to police. And when the perpetrators were identified, prosecutors charged them with "theft of advertising."

"The little-known statute appears to only exist in Illinois and California, where it was originally passed to prevent the Ku Klux Klan from distributing recruitment materials in newspapers, The Intercept reported. "The statute makes it illegal to insert an 'unauthorized advertisement in a newspaper or periodical.' The students, both of whom are Black, now face up to a year in jail and a $2,500 fine."

The Daily Northwestern published an editorial demanding that charges be dropped. The publishing entity and prosecutors capitulated, Seth Stern recounted for the Freedom of the Press Foundation.

Stern lauded the student editors, and I agree. They didn't like their nameplate being appropriated by an offensive partisan protest. But that wasn't the point. Stern explained:

After all, newspapers are often the victims of the same kind of overreach the students are facing. Police in Marion, Kansas, raided the Marion County Record last August, purportedly to investigate whether reporters somehow committed identity theft by confirming a news tip on a government website. In October, authorities charged a reporter and publisher in Alabama with violating a grand jury secrecy law—plainly inapplicable to journalists—by reporting on a criminal investigation of a local school board. Six months before that, an Arizona state senator got a restraining order against a reporter for knocking on her door.

There’s more. A citizen journalist in Texas is hoping to go to the Supreme Court with her lawsuit over an arrest for violating an archaic law against soliciting “nonpublic information.” The City of Los Angeles last week sued a journalist for publishing information that the city itself gave him. And the mayor of Calumet City, Illinois, had citations issued to a journalist in October for asking public employees too many questions. The list, unfortunately, goes on and on.

There are cases in which I will go to bat for criminal law enforcement against protest activity. Protestors don't have a right to trespass on private property after being asked to leave peaceably, which seems to have happened at Brown University. And they don't have a right to cause damage or to put other people in harm's way.

First Amendment doctrine is not perfect, but it has plenty of experience drawing this line. What's worrisome about the latest incidents of speech criminalization is that we seem to have to be re-litigating some easy questions.

When I was an intern at the Student Press Law Center many moons ago, there were five statutes in the United States protecting student media freedom. Today there are 17. Read more about the steady but sure advance of student media freedom at the SPLC and how you can recognize student media freedom at Student Press Freedom Day.

To combat corruption, India Supreme Court strikes down dark money system, cites U.S. precedents

Late last week, the Supreme Court of India struck a blow for transparency and accountability when it ruled unconstitutional a system of anonymous political donation.

In a 2017 law, India had adopted a system of "electoral bonds." These are not investment bonds. Rather, to make a political donation, a donor was required to buy a political bond from the State Bank of India, and the bank then gave the money to the indicated political candidate.

The bond system was adopted ostensibly to further transparency and accountability. By requiring all political donations to be processed by the state bank, regulators could ensure compliance with donor restrictions. The system was supposed, then, to balance donor anonymity—a legitimate extension of free speech rights—with anti-corruption regulation.

P.M. Narendra Modi speaks to Pres. Biden at the G20, 2022.

White House photo via Flickr

But as Darian Woods reported for The Indicator, the party in power of Prime Minister Narendra Modi received 90% of donations. It seems less likely that imbalance represented overwhelming enthusiasm for the Modi administration and much more likely that corporate donors sought favor with the administration and feared retaliation otherwise, despite their seeming anonymity. For while they were anonymous to the public, their identities were known to the state bank. And the state bank is under the control of the administration.

The India Supreme Court ruled that the electoral bond system is incompatible with the fundamental "right to know" (RTK), that is, with Indian norms of freedom of information (FOI). I wrote in 2017 about India's Right to Information Act (RTIA), a statutory instrument akin to the U.S. Freedom of Information Act (FOIA). FOI, or access to information (ATI), for India, though, is in sync with contemporary norms elsewhere in the world, notably Europe, where RTK or FOI is recognized as a human right. Courts such as the India Supreme Court, like the Court of Justice of the EU, therefore have the constitutional enforcement power of judicial review.

The India Supreme Court, as it often does on important constitutional questions, surveyed other common law nations. And despite our weak and non-textual recognition of FOI as a constitutional right, the United States earned several mentions. Saliently, the court cited the old stalwart, Buckley v Valeo (U.S. 1976), for "concern of quid pro quo arrangements and [the] dangers to a fair and effective government. Improper influence erodes and harms the confidence in the system of representative government." Disclosure, the India court reasoned,

helps and aides the voter in evaluating those contesting elections. It allows the voter to identify interests which candidates are most likely to be responsive to, thereby facilitating prediction of future performance in office. Secondly, it checks actual corruption and helps avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. Relying upon Grosjean v. American Press Co. (U.S. 1936), [disclosure] holds that informed public opinion is the most potent of all restraints upon misgovernment. Thirdly, record keeping, reporting and disclosure are essential means of gathering data necessary to detect violations of contribution limitations.

For a more recent vintage, the India court cited Nixon v. Shrink Missouri Government PAC (U.S. 2000): 

[T]he Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermines the system of representative democracy. It stems public awareness of the opportunities for abuse inherent in a regime of large contributions. This effects the integrity of the electoral process not only in the form of corruption or quid pro quo arrangements, but also extending to the broader threat of the beneficiary being too compliant with the wishes of large contributors.

So the India court fairly observed that the U.S. Supreme Court has been willing to unmask donors, even if the Supreme Court has lately been less than enthusiastic about regulations it once, in a Buckley world, approved. Indeed, even as the U.S. Supreme Court rejected the disparate treatment of corporations in Citizens United v. FEC (U.S. 2010), it approved of disclosure requirements. 

The India court found support for disclosure in defense against corruption in other national regimes, too, for example, in Canada and Australia. Alas, there, comparisons with the United States deteriorate in practice. The India Supreme Court did not mention the dark (money) side to America's affair with transparency. Read more at the Brennan Center for Justice.

The case is Association for Democratic Reforms v. India (India Feb. 15, 2024).