Commencement speakers envision new beginnings

Commencement at UMass Law yesterday featured a couple of great speeches. And I'm not an easy critic.

Both speakers implicitly recognized the nature of a "commencement" as a new beginning.

Giving the student address, graduate Jack Lovely, now JD, an accomplished alumnus of my Comparative Law class, spoke eloquently to inspire his class on the road, and opportunities, that lie ahead in their professional careers. 

I especially liked Lovely's use of a quote from Jon Stewart: "[T]he unfortunate and truly exciting thing about your life is there is no core curriculum. The entire place is an elective." The quote often is, as here, taken a bit out of context—Stewart was speaking more to how young people mature at university than after—but the extrapolation is fair, and the spirit fits.

Massachusetts Supreme Judicial Court Justice Serge Georges Jr. impressed on graduates that they have the opportunity, and should endeavor, to shape the law, not just use it, and certainly not just reap benefits without giving back. He admonished, "The law is not a monument. It's a living promise."

Justice Georges similarly advised, "Don't confuse having a good life with living a good life." To wit, he memorably urged graduates to distinguish superficial interaction on social media, such as food posts, from human connections that really matter: "No one cares about the calamari."

A few of my now-former students were among award winners, including: brilliant researcher and top Torts students Christopher J. Sanacore, Academic Achievement for Part-Time Student; dedicated Veterans Law Association President Timothy Trocchio, External Legal Education Award (CLEA); and Comparative Law distinguished alumna Naydin Natasha Zepeda, Thurgood Marshall Social Justice Award. My congratulations to them and all of the class of 2025.

Awards recognize law students Girouard, Riley

A moment to celebrate two of my ace former students, Kaitlyn Girouard and Jack Riley, who took home awards from the UMass Law Student Bar Association this spring.

Girouard earned the Excellence in Leadership Award, and Riley won the Outstanding Part-Time Student Award.

Girouard created this chart to help students navigate multiple liabilities.
© Used with permission. Contact RJ Peltz-Steele for licensing.

Girouard just finished out a spectacular year of service as my teaching assistant in Torts I and Torts II. I had to create a new virtual folder to keep track of student accolades for her mentoring. I asked Girouard to serve in this capacity not only because she excelled academically, but because she took a lead as a cheerful supporter of her own class in the first year. On her own initiative, for her study group, she created some terrific visuals to accompany my texts, a welcome complement to the pedagogy and indication of her talent for understanding learning styles.

Girouard is a Public Interest Law Fellow and leader in a range of student activities: president of the Criminal Law Society, president of the First Generation Law Students Association, and secretary of the Environmental Law Club. She came to law school with highest academic honors at Middlebury College, where she graduated summa cum laude in economics and environmental policy and served as an economic statistics tutor and faculty research assistant.

For all the workplaces that would relish having her, public service is on Girouard's heart. Already before law school, she worked summers in her native Concord, Vermont, for the Agency of Natural Resources, Sheriff's Department, and State's Attorney Office. Last summer, she worked a prestigious internship with the Massachusetts Attorney General's Office in New Bedford. She's headed back to Vermont to work in public service again this summer, this time supported by a prestigious Michael S. Dukakis Public Service Internship Award. Next academic year, Girouard will serve as a teaching assistant in Constitutional Law, further deepening her remarkable mastery of American legal fundamentals.

While Girouard was the star of her 1L Torts day section, Riley was the star of his night section, when I taught both in 2023-24. Riley is one of those exceptional people—an elite group that would not have included me—who manage to thrive in the workplace and in law school at the same time, all while maintaining a mentally healthy home life. He is a long-time manager and executive with 15 years' experience in finance, presently working for HarborOne Bank in Massachusetts. Riley is rightly lauded by professional and academic peers for his leadership skills and commitment to community service. In the law school, he also serves as a peer mentor.

There's a lot to complain about teaching in higher ed today, and I am not reticent to voice it. At the same time, even the most frustrated of us keep coming back to the classroom every fall, and no wonder, for the opportunity to meet, to learn from, and to be inspired by people such as Girouard and Riley.

Student Shieh shakes up Brown with DOGE-like query, but universities hold fast in defense of admin 'bloat'

University Hall and Van Wyckle Gates at Brown University
Robert Barnett via Flickr CC BY-NC-ND 2.0

A conservative student journalist who roiled Brown University in March with a DOGE-like investigation of administrator efficacy was cleared of disciplinary charges under university policies, at least for now, WPRI reported yesterday.

In mid-March 2025, Brown sophomore Alex Shieh emailed more than 3,800 university staff—including administrators, but not faculty, nor students—with a DOGE-inspired query, "Describe what tasks you performed in the past week," the free speech-protective Foundation for Individual Rights in Education (FIRE) reported.

Shieh told WJAR (NBC 10 Providence) that he planned to "use[] information he gathered to launch an online database using artificial intelligence, detailing the different administrators working for the school." Writing under the banner of the conservative Brown Spectator, Shieh was unabashed in advancing his self-described "Bloat@Brown" thesis: that the sky-high price of higher education at Brown—$96,000 annual cost of attendance—could be chalked up in large part to an excess of well compensated staff.

Brown swiftly charged Shieh with conduct infractions, namely, violation of computer use policy and having inflicted "emotional harm" on staff.

The charges come right from the contemporary higher ed playbook. Even mired in the muck of early-20th-century, callow conceptions of academic freedom, the American Association of University Professors (AAUP) as soon as the 1990s managed to perceive the misuse of "electronic communication policies," later commonly known as "acceptable use policies," as a constraint on free campus inquiry. FIRE today sometimes considers such policies in its campus free speech rankings.

The "emotional harm" claim is rich: a charge staff are encouraged to assert in a world in which there's no I in Team Corporatocracy, and which the university eagerly backs to suppress dissent. One might think a university would be cognizant of how the charge of "emotional harm"—not actionable in tort for the very reason that the law should not infiltrate and suffocate social interaction in liberal society—feeds the "snowflake" stereotype. But no, higher ed is committed blindly to its moral condescension. 

My own employer has selectively (and unconstitutionally?) enforced a university policy requiring faculty to "accord respect to ... others" (my emphasis). Calling out misfeasance is an offense, notwithstanding state whistleblower policy.

For an institutional home of so many smart people, Brown apparently couldn't see beyond its bubble to anticipate the public firestorm of support for Shieh. Turns out, Americans are fed up with our uniquely-in-the-world outrageous cost of higher education and the refusal of universities, especially well endowed private ones, even to acknowledge the problem, much less part with their wealth to redress it. Whether staff at Brown are too numerous or too well compensated, I can't say; I haven't made a study of it. But Brown's problem is that Shieh's thesis sounds credible. "Bloat@Brown" hit a nerve.

My reaction was exactly what manifested on Reddit. For example, in the r/Professors thread ("sub") "How Do We Feel About Alex Shieh?," in April, biomedical sciences associate professor the_Stick put it much more eloquently (typos corrected) than I could:

I suspect this sub will automatically dismiss him because he is an undergrad, used AI, is brash, likes the idea of DOGE removing inefficient and wasteful positions, has been interviewed by FoxNews, is Asian, dislikes DEI, and intentionally challenges the university structure. 

However, the curious aspect is that he is targeting administrative bloat with his 'investigation,' specifically positions that we on this sub have often complained about for years and years. While he indelicately lumps positions into what he classifies as DEI/woke, he also uses the term "bullshit jobs" which we have discussed here too. He also specifically does NOT target students or faculty but deanlets and administrators with complicated titles that we have made fun of here. I am NOT saying he is 100% correct, but I am saying he is making arguments we have made here for a decade about the ongoing administrative expenditures having priority over things like faculty salary and facility maintenance. His concerns appear to have arisen from working in a flooded room while observing a 50% increase in tuition over the past decade.

While his language is unrefined (as one might expect from an undergrad, even at an Ivy), I am not a big fan of the university response to him either. From various sources, he seems to have asked in his emails what is your job description or what do you actually do (without making a call for justification). We've done that here, and I know many of us have asked some administrators with a strange title what they do. But that email, perhaps because he made so many at once, is being held up as infliction of harm. The idea of misusing publicly available data seems to be a witch hunt. The charge of misrepresenting himself as a journalist goes against idea of citizen and activist journalists which have been recognized much more widely. He might be a jerk, but Brown's response seems exceedingly vindictive in tone so far.

Indeed, before I read Professor the_Stick's missive, just this week, I engaged in an annual tradition of my own: an audit of positions and salaries at my workplace, in the University of Massachusetts, using the state's public and transparent, but difficult to search, online payroll system. I say it's an "annual" tradition, but really it's more often biennial, because I can't stand to have my stomach turned every year.

I would tell you what I found, but ... I don't want to inflict any, uh, emotional harm or disrespect. It must suffice to say that there are a lot of people making a lot more money than the law faculty. Like me, many of them have "Chancellor" in their titles. But I've never seen them in a classroom doing the, you know, educating that universities are so famous for. Nor the research. In fact, many of them I've never seen.

Like the_Stick observed, Shieh's suspicion is neither new nor devoid of merit. It's rather an echo of Benjamin Ginsburg's superb The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters. The 2011 book made waves, inspired demands for reform, and then effected no change whatsoever.

So it's likely to go for Alex Shieh.

House cap of 435 is unconstitutional, prof argues

My colleague Professor Anoo Vyas has published Why Capping the House at 435 is Unconstitutional in the Penn State Law Review.

Here is the abstract.

Expanding the House of Representatives could offer several benefits, as noted by various public policy experts. It could make gerrymandering more difficult and mitigate the impact of money in our political system. Additionally, it could lessen political polarization, which some scholars argue has reached levels that threaten the long-term viability of our democracy. In fact, increasing the size of the House theoretically could impact all potential legislation at the federal level.

Congress fixed the House at 435 members nearly a century ago when it passed the Permanent Apportionment Act of 1929. Though the population of the country subsequently has increased by more than 200 million, the number of House delegates remains at 435. This Article argues that the Permanent Apportionment Act is unconstitutional because it eliminates Congress’ responsibility to assess the size of the House every ten years. This review of House size in connection with the census was a significant tool used by proponents of the Constitution during the ratification period to convince skeptics who feared the House may one day transform into an oligarchical body.

Prof. Anoo Vyas
UMass Law

The Permanent Apportionment Act violates various modes of originalism and textualism, as favored by more conservative jurists. Moreover, it runs afoul of living constitutionalism, espoused by more liberal judges. Finally, a formula, such as one that automatically adjusts House size to the cube root of the population, could avoid contentious fights while simultaneously passing constitutional muster.

As I discussed with Professor Vyas in the development of his work, I believe his thesis is important regardless of whether it precipitates an accordant Supreme Court ruling anytime soon. The impact the article can and should have is to spark serious consideration of the dysfunction of our Congress and why it has failed as an institution to meet the needs of voters. Look no farther than U.S. Rep. Mike Flood's (R-Neb.) disastrous town hall.

In fact, when Professor Alasdair Roberts lectured at the law school last week about deficiencies in the design of American government—I wrote about Roberts's lecture yesterday—Roberts specifically listed the small size of Congress, relative to the legislatures of the world's comparably large and complex polities, as a cause of our defective democracy.

Roberts explains 'real crisis' of American government

Flyer by RJ Peltz-Steele (with AI art) CC BY-NC-SA 4.0

At UMass Law last week, Alasdair S. Roberts, UMass Amherst professor of public policy, lectured on "The Real Crisis of American Government" and spoke to my international law class about his 2023 book, Superstates: Empires of the 21st Century.

In research for his next book, Professor Roberts is investigating deficiencies in the design of American government and how they might be remedied. The work follows naturally after Roberts's most recent book, The Adaptable Country: How Canada Can Survive the Twenty-First Century (2024), as the author turns his scrutiny to the United States. 

The subject could not have been more timely with the dramatic and controversial changes afoot in the federal government. Here was the teaser for the talk:

The United States isn’t facing a crisis of democracy. It’s facing a crisis of adaptability: the inability to adjust institutions to meet today’s challenges.

Prof. Alasdair S. Roberts
RJ Peltz-Steele CC BY-NC-SA 4.0

I don't want to steal Professor Roberts's thunder; his ideas will be more fully developed as the research unfolds. I will summarize two prongs of his presentation this way:

First, as Roberts put it, if one were to design a government for a polity as socially pluralistic, geographically vast, and ideologically diverse as America is today, it would not look like the system of the U.S. Constitution. The delta between what we have and the ideal is the root of our problems, which span the three branches of government.

Second, fixing things won't be easy or fast, even after, and if, we acknowledge our problems. The drifts of dysfunction have accumulated for more than a century at both federal and state levels, and it will take just as long to reverse adverse trends and to re-revolutionize—one hopes bloodlessly—American government.

Problems wrought by the unanticipated contemporary complexity of the American nation were precisely where Professor Roberts left off in Superstates, in which he pondered the expansiveness, population, diversity, and complexity, unprecedented in the history of human civilization, of the United States, European Union, China, and India. Roberts talked to my international law class about how these modern polities are and are not like extinct historical empires, and what that means for our species in an era of existential challenges such as climate change. 

Superstates has been one of my favorite nonfiction books since I read it two years ago, when Professor Roberts visited my freedom-of-information seminar. Re-reading its first chapter last week, I found it only more salient to rapidly evolving international relations.

Professor Roberts's school-wide lecture was well attended in large thanks to sponsorship by student organizations, the Federalist Society, the Law and Political Economy Society, the National Lawyers Guild, and the Veterans Law Association, for which I am faculty adviser; and by the public interest law program and the Office of the Dean, which provided pizza. I am grateful to Professor Roberts for visiting campus and to all the students, faculty, and deans who supported his visit.

Christian law students hear advice on grounding oneself in faith amid stresses of law practice

🍀 St. Patrick's Day Zoom.
RJ Peltz-Steele CC BY-NC-SA 4.0

The newly constituted student Christian Legal Society at UMass Law School held its first event on St. Patrick's Day.

In a hybrid meeting, "Faith and the Legal Field," CLS students in Dartmouth, Mass., and I were joined via Zoom by Anton Sorkin, director of law student ministries at the Christian Legal Society in Springfield, Va.; attorney J.A.A. Purves, Penner & Purves, Santa Barbara, Cal.; and Kathy Cooper, InterVarsity regional director for faculty and graduate ministries, working out of Brown University in Providence, R.I.

The new student organization and this panel in particular were the work product of the tireless Tiffany Trott-McKenna and her executive board, Sophia Chiotis, JuliaBianca Josen, Dream Whitaker, and Paul Steinman. They're all wonderful students whom soon I will miss when they graduate and begin law practice.

A veteran of the U.S. Marines, Trott-McKenna is a phenom I have been especially privileged to know in her time in law school. She serves also as president of the Black Law Students Association and member of the Veterans Law Association, and she will practice law in California after graduation.

Trott-McKenna asked the panelists to share their experiences with faith and law practice, and also asked for takeaways that might be useful as Christian law students transition to practice.

Purves talked about family practice and explained, for example, the distinctly professional role of the lawyer in a divorce case. Both faith and one's professional responsibility call for compassionate and informed counseling of a client seeking divorce, he said—even though marital reconciliation will spell the early end of the representation.

Sorkin spoke to the challenges of practicing in Big Law while maintaining ethical and moral lines, dictated by faith, that one won't cross. Constant vigilance and self-interrogation are required to resist the "win at any cost" mentality that too often dictates legal maneuvering. I'm reminded of Daniel 6:3.

For my part, I spoke of the temptation to bifurcate one's life into faith and secular work, and how I came to understand that no one, lawyers included, truly lives a life of faith while indulging that duplicity.

In takeaways, Cooper spoke to the importance of prayer to keep an even keel. Likewise, I talked about the importance of staying in the Word—while admitting that my track record isn't perfect, as daily struggles inevitably pull us all toward materialism and the secular. The important thing is to try, try again.

Trott-McKenna succeeded magnificently in navigating the bureaucracy to obtain official recognition of the CLS student group at the law school and in the university. I have been blessed to serve as the inaugural faculty adviser for the CLS group.

The group is not yet an official chapter of the national CLS organization. That will be a job for an up and coming new board. I look forward to CLS contributing vitally to the formation of law students' professional identity in the coming years.

Researcher seeks to ease persistent anticompetitive constraints on indie films in online environment

Yaleth Calderon, a film school graduate and candidate for the California bar, has published a law review note on antitrust, online technology, and independent filmmaking.

Are There Plenty of Movies in the Sea?: How a Revision of the Terminated Paramount Decrees Could Benefit the Market for Independent Filmmakers appears in the latest issue, volume 20, page 111, of the UMass Law Review. Here is the abstract:

In the early years of filmmaking, the Supreme Court passed the Paramount Decrees as a set of rules prohibiting certain practices by major production companies that restrained competition within the industry. The creation of the internet has not only changed the way society has consumed media, but it has also affected the opportunities for filmmakers to share their works with the world. In 2020, the Paramount Decrees were overturned, dramatically limiting the distribution channels, creative control, and marketing opportunities held by independent filmmakers. This note outlines the injury felt by independent filmmakers and proposes specific rules inspired by the Paramount Decrees that the Federal Trade Commission could enact to mitigate some of the adverse effects of the decision.

The journal is transitioning to a new online publication platform, so volume 20 is not yet online. The new platform is expected to launch in summer 2025. Meanwhile, Calderon generously has made the piece available to Savory Tort readers here.

In an author's note, Calderon wrote that "[t]his article is an attempt to contribute to the ever-changing challenges towards film distribution in the digital era."

Calderon is an alumna of my comparative law class, in which it was a pleasure to have her. She received her B.A. in Cinema and Digital Media and English, with an emphasis in literature, criticism, and theory, from the University of California Davis. Last year, she served as a judicial extern at the L.A. Superior Court. After finishing law school this spring, Calderon plans to return to her home Los Angeles to practice law in California.

Calderon's subject matter is dear to my heart, too. Morgan Steele, my daughter, works in film in Los Angeles and has directed shorts. She just made a cameo in an Instagram promo (below) for The Gorge (streaming today on AppleTV+ (subscription wall)). Paul McAlarney, my friend and former TA and RA, now a New York lawyer, was an independent filmmaker before law school.

Exactly as Calderon recognizes, the streaming environment has multiplied the potential for independent distribution in film, but anticompetitive practices in the market have precluded the full realization of that potential, to the detriment of both creators and viewers.

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Mother of slain scholar publishes his account of academic workplace mobbing at UMass (Amherst)

At the inaugural Niagara Conference on Workplace Mobbing at Niagara University last summer, easily the most moving and haunting presentation was that of Kimberly Lewis, whose son lost his life after being victimized by workplace mobbing.

A scholar, Joel Inbody authored a book manuscript about his experience as a victim of academic workplace mobbing at the University of Massachusetts (Amherst). After his death, his mother, Lewis, edited and completed the book in partnership with the pugnacious publisher Herb Richardson, founding editor of Mellen Press. 

Inbody wrote: "I wrote this book to critically explore an academic mobbing that sociologists subjected me to as a graduate student in 2018-2019. After thoroughly reviewing available literature on mobbing to highlight their history, severity, and progression, I analyze content from numerous records (emails, police reports, notes, letters, blog posts, pictures) and rely on autoethnography to describe the mobbing that I lived through."

A Student's Account of the Mobbing That Led to His Murder (How U. Mass Faculty Bullied Him to Death (2024) became available for sale at Mellen Press late last year.

Lewis's presentation, along with most of the presentations at the 2024 Niagara Conference on Workplace Mobbing, is available on YouTube.  The 2025 Niagara Conference on Workplace Mobbing (via The Savory Tort) is open for registration.

Q&A: 

New book examines 'rise of classical legal thought' through experience of South Asia, British Empire

Professor Chaudhry
UMass Law

Professor Faisal Chaudhry has published a book on history and the development of classical legal thought.

South Asia, the British Empire, and the Rise of Classical Legal Thought: Toward a Historical Ontology of Law (2024) is available now from Oxford University Press. Here is the publisher's description:

This book delves into the legal history of colonial governance in South Asia, spanning the period from 1757 to the early 20th century. It traces a notable shift in the way sovereignty, land control, and legal rectification were conceptualized, particularly after 1858. During the early phase of the rule of the East India Company, the focus was on 'the laws' that influenced the administration of justice rather than 'the law' as a comprehensive normative system. The Company's perspective emphasized absolute property rights, particularly concerning land rent, rather than physical control over land. This viewpoint was expressed through the obligation of revenue payment, with property existing somewhat outside the realm of law. This early colonial South Asian legal framework differed significantly from the Anglo-common law tradition, which had already developed a unified and physical concept of property rights as a distinct legal form by the late 18th century. It was only after the transfer of authority from the Company to the British Crown, along with other shifts in the imperial political economy, that the conditions were ripe for 'the law' to emerge as an autonomous and fundamental institutional concept. One of the contributing factors to this transformation was the emergence of classical legal thought. Under Crown rule, two distinct forms of discourse contributed to reshaping the legal ontology around the globalized notion of 'the law' as an independent concept. The book, adopting a historical approach to jurisprudence, categorizes these forms as doctrinal discourse, which could articulate propositions of the law with practical and administrative qualities, and ordinary language discourse, which conveyed ideas about the law, including in the public domain.

Professor Chaudhry is a valued colleague of mine. I admire his critical and historical approach to first-year property, with which he complements my social and economic emphases in teaching torts.

Law class visits Constitutional Court of Portugal

Law students and Dean Sam Panarella (left)
visit the Constitutional Court. © RJ Peltz-Steele

Since last week, ten talented U.S. law students have been making the most of Lisbon, Portugal, in UMass Law's first class abroad.

In our maiden venture, we are studying comparative data protection law in the United States, European Union, and Portugal. We have been treated to superb lectures by law faculty of our partner institution, the Universidade Católica Portuguesa (UCP).

Today, a UCP faculty member welcomed us to the home of the Portugal Constitutional Court, where he also serves as Vice-President. Justice Gonçalo de Almeida Ribeiro spoke to us there about constitutional conflict in the EU legal system.

The justice had instructed students to prepare by reading Digital Rights Ireland, a 2014 case in the EU Court of Justice (CJEU), and the "Metadata Ruling," a 2019 decision of the Constitutional Court of Portugal. In Digital Rights, the CJEU had struck down an EU directive on data retention as inconsistent with fundamental rights under the European Charter. 

Justice Gonçalo de Almeida Ribeiro addresses law students.
RJ Peltz-Steele CC BY-NC-SA 4.0

The case marked a recognition of the CJEU's own power of judicial review. But it also raised a confounding question. The CJEU lacks authority to review national legislation directly. So what would become of national, domestic laws that had been enacted already pursuant to the stricken EU directive? 

The Portuguese Constitutional Court in Metadata construed Portuguese constitutional law in harmony with the EU Charter to strike down as well the problematic provisions of Portuguese law that had been enacted pursuant to the directive. The responses of the Portuguese and other national constitutional courts to Digital Rights thus marked a pivotal point in the evolution of the EU's peculiar brand of "federalism" (to jam a square peg into a round word).

All of the law students in the class deserve praise for being good-natured and flexible in the face of a fluctuating itinerary for this fledgling Portugal project. They all assert, nonetheless, that they are here first and foremost for this remarkable learning opportunity, and not for myriad other benefits, for example, to see Taylor Swift at Benfica Stadium at what are by U.S. standards bargain ticket prices. That was icing.

UMass law students with me at Universidade Católica Portuguesa
© Prof. Sofia Pinto (licensed)

 

UMass Law inaugurates comparative law study abroad

UMass Law School has announced a two-week study abroad program in Lisbon, Portugal, in partnership with Universidade Católica Portuguesa (UCP), focused on U.S.-EU comparative law.

I'm quick to call out my employer when it does something bone-headed, so I should be willing to give praise when it does something right. This is the latter.

In 28 years of university teaching, I've consistently had to persuade deans that internationalism matters. Some, not always nor wholly to their discredit, have been so absorbed by the burdens of making the world better locally that they have not had the bandwidth to think about other cities and states, much less countries.

Some have just been fools. Like the one in Arkansas who told me that "our students don't care about that" to reject my proposed partnership with a Mexican school when Arkansas had the fastest growing per capita Latino population in the country, a new Mexican consulate was opening in Little Rock, and we supposedly cared about diversity.

It was a shock, then, to find that the new top dean this academic year at UMass Law, Sam Panarella, believes that international engagement is a vital component of being a good law school. Thanks to his leadership in just his first year as dean, 10 students from UMass Law will journey to Lisbon this very year to study the comparative law and policy of U.S. and EU data protection.

Rhode Island and the south coast of Massachusetts, where UMass Law is located, are home to the largest Portuguese-American population in the United States by a wide margin. So the program is a welcome and logical fit for 14-year-old UMass Law School. The program is made possible, especially for students, by generous support from the Center for Portuguese Studies and Culture at UMass Dartmouth, which does important work in its cultural niche.

We plan to repeat the Lisbon program in future years, in other areas of comparative focus, taking advantage of the varied expertise of law faculty at UMass and UCP. There are hurdles to overcome. But I'm hopeful that this is just the beginning of UMass Law's portfolio on international engagement.

Hart, legislative counsel, talks public service career

Attorney Kevin Hart speaks to students today, Feb. 20, at UMass Law School about his career path in public service in Massachusetts state government, and earlier, in the Town of Bridgewater.

Hart is now chief counsel for the Joint Committee on Transportation in the Massachusetts legislature. He graduated from UMass Law in 2015. He came to UMass Law with a BA from Stonehill College and an MPA from the Sawyer Business School at Suffolk University.

Hart was the second teaching assistant I hired at UMass Law in Torts I and Torts II. (The first is doing well too.) He wrote a characteristically excellent research paper on the modern inutility of the historical negligent-delivery-of-telecommunication cause of action.

I'm not saying that my teaching causes meteoric career success. I'm just observing correlation.

Plaintiff drops privacy suit that stretched to claim against UMass Medical in nationwide data breach

UMass Chan Medical School
Mass. Office of Travel & Tourism via Flickr CC BY-ND 2.0

Until six days ago, the University of Massachusetts Chan Medical School was defending a privacy suit over a data breach, though the plaintiff liability theories looked thin.

There doesn't seem to be any dispute over the fact of the data breach. UMass Chan was just one of hundreds of organizations nationwide implicated in a breach affecting tens of millions. According to electronic security firm Emsisoft (which has a commercial interest in higher numbers), the breach affected more than 2,700 organizations and the data of more than 94 millions persons (last updated Jan. 18, 2024).

The vulnerability for all of these organizations was a file transfer platform called MOVEit, a product of publicly traded, Burlington, Mass.-based Progress Software Corp. UMass Chan used MOVEit to transfer personal information to other state agencies and programs. Hackers obtained and published the data of more than 134,000 persons, including recipients of state supplemental income and elder services.

According to state officials, WBUR reported, the "exposed data varies by person, but in each case includes the person's name and at least one other piece of information like date of birth, mailing address, protected health information like diagnosis and treatment details, Social Security number, and financial account information." The commonwealth notified affected persons and offered free credit monitoring and identity theft protection.

The complaint filed in federal court in September 2023 sought class action certification. The named plaintiff blamed UMass Chan for weak security and delayed notification resulting in a fraudulent attempt to use her debit card. Wednesday last week, the plaintiff voluntarily dismissed without prejudice, meaning the case might not yet be over.

The articulated causes of action, though, were a stretch. That's not to say that the putative plaintiffs suffered no injury. The problem rather is that the law in most states, including Massachusetts, and at the federal level still fails to define data privacy wrongs in a manner on par with the law of Europe and most of the rest of the world.

There was no statutory cause of action in the UMass Chan complaint. The diversity complaint alleged counts of negligence, breach of contract, and unjust enrichment.

Negligence has not been a productive vein for privacy plaintiffs, who lack the usually prerequisite physical injury. Massachusetts cracks open the door more than most other states to negligence actions based on lesser injury claims, such as emotional distress or economic loss. But it's not a wide opening.

Privacy actions in state law meanwhile are problematic because American common law has not yet well established the nature of the plaintiff's loss according to conventional understandings of injury. Indeed, federal courts disagree over when a statutory state privacy action supplies the "injury-in-fact" standing required by the federal Constitution. 

The named plaintiff in the UMass Chan case hastened to emphasize her contractual relationship with UMass Chan as a service provider, in an effort to anchor the negligence claim within a strong relationship of duty to get through the Massachusetts doorway. She described the identity risk of the debit-card incident to establish economic loss at least.

It's not clear that the pleading could have pushed over the hurdles to negligence recovery. I have advocated for the evolution of common law tort to close the gap in recognition of privacy violations in U.S. law, similarly to how UK courts developed the "misuse of private information" tort in common law to complement transposition of EU data protection. The Massachusetts Supreme Judicial Court could do that; certification would be required here in a federal case. But the trend in American data privacy law rather has been for the courts to wait on legislators to move the ball forward.

The other liability theories were a stretch, too. In contract, the plaintiff alleged herself a third-party beneficiary of data sharing agreements between UMass Chan and its state partners. Third parties can claim rights in a contract, but the proof is stringent. Contract law also raises a damages problem. The plaintiff here was not seeking specific performance, and it's not clear that any recovery in contract law would exceed the remediation the commonwealth already offered.

The equitable claim of unjust enrichment theorized essentially that UMass Chan benefited financially by cheaping out on security. That's creative, but a plaintiff in equity usually wants back something she lost to the defendant. A differential in the cost of contract services is speculative, and it's an attenuated causal chain to allege detriment to UMass Chan clients.

Privacy plaintiffs in the United States have seen some success using laws that predate contemporary data breach. But those theories won't work here. Massachusetts once had a leading data regulatory system for its requirements of secure data management. But the law is now well worn and has not kept up with other states, California being the model. Critically, the Massachusetts regs don't provide for private enforcement.

Some plaintiffs have found success with the dated (1986) Computer Fraud and Abuse Act. But a federal CFAA claim would be leveled properly against the hacker. The alleged culpability of UMass Chan is more accident than abuse.

American privacy plaintiffs flailing to state wrongs in litigation unfortunately is common and will continue as long as the United States lacks a comprehensive approach to data protection. I wrote 10 years ago already that American expectations in data privacy had outpaced legal entitlements.

The pivotal factor in whether MOVEit breach victims find any relief is likely to be the state where they and their defendants are located. Perhaps the case will push commonwealth legislators at last to act on a bill such as the proposed Massachusetts Information Privacy and Security Act (see, e.g., Mass. Tech. Leadership Council).

The case is Suarez v. The University of Massachusetts Chan Medical School (D. Mass. filed Sept. 18, 2023).

Educator, law student earns town board appointment

Sullivan in Weymouth Monday.
Used with permission.

A student in my first-year Torts class was appointed this week to the Board of Health of Weymouth, Massachusetts.

Casandra "Casey" Sullivan was voted onto the Weymouth Board of Health at the Budget and Town Council meeting Monday. Her appointment will take hold officially soon, upon swearing in by the town mayor.

Casey currently works as a school psychologist and outplacement liaison for Weymouth Schools. A proud mother of five and former English teacher, Casey also served as a counter-intelligence agent and linguist for the Massachusetts Army National Guard.

In her spare time, Casey is working toward her J.D. She exemplifies the value of non-traditional students in the law classroom, which affords me an opportunity to learn as much as teach. I look forward to what she will accomplish with a law degree added to an already impressive resume.

'Academia is the fifth circle of hell'

Gage Skidmore CC BY-SA 4.0

 

 

[A]cademia is the fifth circle of hell. It goes babies, musicals, magic, kale, academia.

 —Paul (Harrison Ford) to Gaby (Jessica Williams) in Shrinking, "Moving Forward" (s1e9 aired Mar. 17, 2023), written by Sofi Selig

OER saves students money, but printing is too pricey

Markus Büsges (leomaria design)
für Wikimedia Deutschland e. V. (CC BY-SA 4.0)

Open educational resources (OER) are all the rage in higher education, but the cost of hard copies for students remains a problem.

At a panel on OER at a UMass Dartmouth teaching and learning conference in January, I had the privilege of talking about my experience using Tortz, my own textbook for 1L Torts (chapters 1-7 online, remainder in development and coming soon). Ace librarian Emma Wood kindly invited me to co-pontificate with Professor Elisabeth Buck and Dean Shannon Jenkins on a panel, "The Price is Wrong: Lowering Textbook Costs with OER and Other Innovations." Wood is co-author, with law librarian Misty Peltz-Steele (my wife), of Open Your Casebooks Please: Identifying Alternatives to Langdell's Legacy (on this blog).

My campus is pushing for OER, and for good reason. We all know how exorbitant book costs have become for students. And academic authors are hardly beneficiaries of the proceeds. The first book I joined as a co-author in 2006, for 1L Torts, bore a sale price in the neighborhood of $100. I received $1 to $2 per book (and gave to charity the dollars generated by my own students). My students for the last two years have paid nothing for Tortz.  Besides the cost savings, I get to teach from materials I wrote, compiled, and edited, so I know the content and how to use it better than I could anyone else's.

My students' book for 1L Property this past academic year cost $313. It's an excellent book, and I'm not knocking the professor who chose it. Developing my own materials for a foundational course is a labor-intensive project that I felt I could tackle only with the freedom, afforded by tenure, to set my own agenda, and some 20 years' experience teaching torts. At that, I've benefited and borrowed heavily from the pedagogy of a treasured mentor, Professor Marshall Shapo. Without the opportunity to have invested in Tortz, I'd be using a pricey commercial book, too.

A necessary aside: Technically speaking, my book is not OER, because I retain copyright. By definition, I'm told by higher education officials, "OER" must be made available upon a Creative Commons license, or released into the public domain. That's an irrevocable commitment. I'm not willing to do that. In my experience working with higher education institutions around the world, I have found that some out there would seize on freely available intellectual property while profiting handsomely from students desperate for opportunity. In such a case, I would rather negotiate a license and decide myself what to do with any proceeds. I freely licensed Tortz to my own students for the last two years. This is an interesting problem, but for another time.

So Tortz has been working out well. But now I'm looking at a roadblock: hard copies.

For the past two years, I have taught Torts I and II only to small night classes, and I've provided them with hard copies of the text. I made the hard copies on our faculty copiers, and the numbers were small enough not to be of concern for our budget. But beginning in the fall, I'll have two sections of torts, day and night, anticipating 70 or so students. That's too many prints to fold hard copies into the office budget.

I need my students to have hard copies for many reasons. The first issue is comprehension. For me, a reader of a certain age, I still have trouble absorbing content from a screen as well as from a page. When it's important for me to get it, I print a hard copy to read. Many of my law students, of all ages, but especially non-traditional and part-time students, share my preference. When I did a peer teaching observation for my colleague in property law, I saw students using both online and hard-copy versions of the $313 book. A hard-copy user told me that she uses the online version, but still needs to highlight and "engage with the text" to process the content on the first go.

A second issue arises in the exam. I prefer to give my 1L students an open-materials but closed-universe exam. I find that a closed-book exam tests more memorization than analytical skill, while an open-universe exam tests principally resistance to distraction. Regardless, it's my pedagogical choice. The problem is that the exam software we use locks students out of all computer access besides the exam. For any materials they're allowed to have, namely, the book, they need to have an old-fashioned hard copy.

So how to put hard copies in 70 students' hands without re-introducing the cost problem?

As is typical, my university has a contract with a bookstore operator, and book sales are supposed to go through the bookstore. The bookstore uses a contractor for printing. The contractor, XanEdu, after weeks of calculation, priced my book for the fall semester only: a ready-made PDF of 619 pages with basic RGB screen (not photo-quality) color, at $238 per print. That's a non-starter.

Printing at Office Depot would cost just a bit more than that. My university no longer has a print center, but I think its prices when there was one were comparable to retail.

A print-on-demand company, Lulu, was founded by Red Hat tech entrepreneur Bob Young, who became frustrated with the traditional publishing industry when he wanted to tell his own story. Lulu priced out at just $27 per book, which definitely makes one wonder what's going on at XanEdu. Lulu charges about $12 to ship, USPS Priority, but that takes up to 11 business days, which is far too long for students to order only once school starts. Also, it's not clear to me whether I can offer print on demand consistently with the university's bookstore contract. The bookstore has not answered my query as to what the mark-up would be to pre-order copies in bulk from Lulu.

I've kicked the issue upstairs, so to speak, to the law school administration. The associate dean promised to take the question up more stairs, to the university. Budgeting is above my pay grade, after all. I'd like to see the university support OER by volunteering to eat the printing costs. If I'm pleasantly surprised, I'll let you know. It's more likely the university will offer to deduct the costs from my pay.

Anyway, I am excited about OER, or freely licensed "OER," as a game changer for me to be more effective in the classroom. I appreciate that my university supports the OER initiative at least in spirit, and I am grateful to have been included in Emma Wood's thought-provoking discussion with Professor Buck and Dean Jenkins.

Students join labor demands for living wage at RISD

(UPDATE, April 18: Labor and RISD reached a tentative agreement, Wazlavek tweeted last night.)

The Rhode Island School of Design—famous alumni include Seth MacFarlane, BFA '95 (Family Guy, The Orville)—has lately been embroiled in a labor dispute.

I saw, and heard, protestors yesterday morning when I drove to the nearby Providence Amtrak station. They made plenty of noise, yet in an artsy, celebratory way. You really don't want to mess with creative types. With faculty support, students are demonstrating alongside custodians.

An attorney-alum of my torts and comparative law classes is working on the matter from the Teamsters side. Aaron Wazlavek (SSRN) has been on site this week.  (Video NSFW: adult language. That's just how labor rolls.)

Settle the contract @risd. One day longer, one day stronger.

We @Teamsters won’t leave until we get a deal executed for our members.#1u #Organize #OneBigUnion pic.twitter.com/2H3DFT7fuF

— @voteunion©️2023 | #1u (@voteunion) April 12, 2023

According to arts independent Hyperallergic, "[c]urrently, the average wage of a RISD custodian, groundskeeper, or mover is $16.74 per hour. The lowest wage is $15.30. Teamsters Local 251 has fought for a $20 minimum wage ...."

The living wage for one adult with no children in Providence County, Rhode Island, is $17.42/hr., according to the MIT calculator.  The minimum wage in Rhode Island is $13/hr.

In March, New York University law students made headlines demanding a choice between credit hours and an hourly wage for work on law review. 

The New York students have a point. I've long been critical of unpaid internships. Nowadays, U.S. law schools require free labor in many guises. Call it "field placement," "externship," "pro bono"—even new lawyers are expected to "volunteer" before they can get paying jobs. It's all subversion of the simple principle that one should be paid for one's work. Corporations and employers delight in pushing American work-life balance in the wrong direction. The legal education system and accrediting American Bar Association are complicit.

The set rate for student labor—when we pay in real money; I just hired a research assistant for the fall—at UMass Law in south-coast Massachusetts is $15/hr. The living wage for one adult with no children in Bristol County, Massachusetts, is $17.88, according to the MIT calculator.

Latest reports suggest that RISD and labor will find a middle ground between $15 and $20. I hope it's at least halfway.

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.

Lawsuit alleges excessive force against federal immigration detainees held near public law school

⚠ Warning: indecent language.

Latino detainees of the Bristol County House of Corrections, which is located just three-quarters of a mile from the University of Massachusetts Law School, sued the county sheriff and Immigration and Customs Enforcement, alleging serious physical abuses.

Filed in April, the complaint, stating Bivens and § 1983 claims for excessive force, is available from the federal district court docket at Court Listener. The factual allegations detail incidents of violence and some not so flattering quotations of officers, such as: "Shut the fuck up. You bitches are a bunch of immigrants without papers. You have no rights."

Sheriff Hodgson shakes hands with former President Trump
at a White House event recognizing sheriffs in 2019.
(Official White House photo by Joyce N. Boghosian via Flickr.)

Named in the lawsuit is Bristol County, Mass., four-term "tough on crime" Sheriff Thomas M. Hodgson. This lawsuit is not his first tangle with unsavory allegations.

A 2020 report by the office of Attorney General Maura Healey determined that authorities employed excessive force in violation of the civil rights of federal immigration detainees (press release). New Bedford, Mass., tort lawyer Betty I. Ussach has written letters to local media complaining of the high cost of defending Hodgson's style of criminal justice (EastBayRI, Dartmouth Week Today).

But in past years, Hodgson's name recognition has seemed to work a no-publicity-is-bad-publicity magic in his reelection bids. Hodgson faces a slate of challengers this year.

I wonder whether the geographic juxtaposition of the Bristol prison and the Immigration Clinic at the state's only public law school is not telling of state conflict-of-interest policy, which would complicate if not prohibit clinic litigation against state and local actors. 

Clinic director Professor Emerita Irene Scharf retired just one one month ago. She exited amid some turbulence over how and even whether the law school would take responsibility for existing clients. It remains to be seen what the clinic will look like under new management. Scharf and sociology and anthropology Professor Lisa Maya Knauer have labored diligently for decades on behalf of the immigrant Latino community in south coast Massachusetts. But university personnel at Dartmouth, Mass., far from the aegis of the "flagship campus" at Amherst, must tread lightly in politically sensitive matters, lest they jeopardize the very existence of the system's less favored locations.

The present lawsuit, Morocho v. Bristol County Sheriff's Office (D. Mass. filed Apr. 29, 2022), was filed by Washington, D.C.-based NGO Rights Behind Bars and signed by its Boston-based litigation director, attorney Oren Nimni. Nimni is a graduate of Northeastern Law and an adjunct professor at Suffolk Law. So let the record reflect that monied Boston private law schools can make grief for public officials, too.