Airlines abuse customers, who have nowhere to turn and face byzantine barriers in small claims courts

A Savory Tort Investigation

I sued Air France yesterday.

Consumer Protection and Airline Impunity

The instant matter is simple. I bought a roundtrip ticket from Boston to Paris specifically as offered by Air France because seat selection upon check-in came with the ticket. (I have a dodgy knee and an over-the-hill bladder, so seat selection on long hauls matters to me. You asked.)

Air France consistently promised seat selection.

Air France turned the flight over to Delta for operation, and Delta refused to honor seat selection upon check-in. Delta rather demanded $89 per seat assignment. Delta would not even give me a random seat upon check-in; I was told I would have to wait for a seat assignment at the gate, after everyone with higher priority was given an assignment.

I contacted Air France multiple times and was told that Delta's terms superseded Air France's, to call Delta. I contacted Delta multiple times, and I was told that my problem was with Air France.

I'm not the only person to experience precisely this problem. Redditors and online reviewers have reported the same frustration and the same shirking of responsibility by the airlines over seat selection and other purchase terms. 

That matters here, because I don't file lawsuits just for me. I believe I have a professional responsibility to use my skills as a litigator now and then if it will make the world better for many people.

I made complaints to governmental authorities, the attorney general's office in my home state of Rhode Island, and the U.S. Department of Transportation. Of course, those complaints went into the circular file.

The R.I. AG's office, while having been helpful in other matters, has in the past sent me to the feds on airline issues, notwithstanding their concurrent jurisdiction over ticket sales. And the U.S. DoT, which used to issue at least a polite email of acknowledgment, said nothing, probably distracted by the premiere of Great American Road Trip.

Delta sees things differently, blames Air France.

Delta, it must be said, sent me an email offering something, I think it was a $55 credit, on a future flight. I did not accept.

I also sent a comprehensive demand letter to Air France in June. They replied in July with yet another email, this one at least sufficiently detailed to suggest, for the first time, that they did understand the problem. They were unwilling to pay anything, of course. And more importantly, they did not say the problem was redressed, and they again blamed Delta.

This isn't about money for me, if that's still not clear. What I want is for the airlines to stop using operator agreements as an excuse to reneg on plain promises to consumers. Had Air France simply taken responsibility for the wrong and promised it's no longer happening, I would have dropped the matter.

But Air France couldn't help itself. Repeatedly, responses blamed Delta. They did not address the salient observation of the demand letter: that I have no contract with Delta, even if it were willing to accept responsibility rather than send blame back around.

So as I promised in the demand letter—one must keep one's promises—I sued for breach of contract and deceptive business practices. Like some other states, Rhode Island has a reasonably friendly statute for such consumer claims, and it entitles me to the greater of $500 statutory damages or compensatory damages, plus costs, with the possibility of a damage multiplier, up to three times, in the court's discretion. 

I am not going here to address the problem of arbitration terms among airline terms of service, slyly diverting consumers from the courts and stripping them unwittingly of their Seventh Amendment rights. I must mention that such boilerplate terms usually put any court claim of the kind I discuss here out of reach for the consumer. Worse, arbitration systems are rigged for corporate respondents, evidenced at minimum by the simple fact that they prevail in arbitration far more than reason or chance says they should. The proceedings moreover remain secret, undermining civil justice for everyone else. I have good reason to believe that I am not bound in this matter by compelled arbitration terms, but any reader or prospective plaintiff should be warned.

My goal here remains simply reform of industry practice for consumer protection. I've written before about the abuse American consumers suffer at the hands of airlines, especially in comparison with our European counterparts, and our present era of deregulation in the United States is stripping away what little enforcement there was. 

Yesterday, for example, I was shopping for an airfare online and saw a United fare with no carry-on, that is, bringing a carry-on is not allowed, not an option. That almost compels a person to check a bag, yet the fare did not include a checked bag; you could buy that later: what regulatory authorities call "drip pricing," or what President Biden called "junk fees," and which makes it exceedingly difficult to compare fares. 

These deceptive sales strategies utterly undermine absolutist economic libertarianism, demonstrating, in my view, why responsible libertarianism must support reasonable regulation to ensure a level marketplace. The Biden Federal Trade Commission regulated against junk fees. Trump has not rescinded the regulations, to my knowledge. But non-enforcement is functionally the same. A meaningful regulation would afford a private right of action with damages that would command airlines' attention.

It seems, in the great American tradition of rugged individualism, that enforcement is left to the consumer, who is scarcely given two sticks to rub together to get anything done. And at this point, it seems that a financial hit, even a small one, along with the hassle of answering in court, is required to compel Air France to own up to the simple responsibility of delivering what it sells.

If only it were that easy. 

Small Claims Court and Barriers to Consumer Protection

I am a lawyer (D.C. license) and a litigator, and I have filed many lawsuits. But what I just experienced trying to file a small claim was harrowing and would be prohibitive to a person not equipped as I am. What's worse is that touted digital tools that are supposed to make access to the courts easier are not helping at all.

Here is a series of problems I encountered in filing my small claim. Never mind, by the way, that my claim should be a class action, which is prohibitively difficult even for me to put together, if even possible under the law, which in the United States has grown hostile to consumer class actions, even while Europe, again, moves in the opposite direction.

My small claim was rejected by Massachusetts courts. And then they changed their minds.

I tried first to file a small claim in Massachusetts. It was rejected.

My personal-jurisdiction claim over Air France in Rhode Island is sufficient, but thin, based on my online ticket purchase. There's always a risk of getting a judge who is hostile to plaintiffs and not familiar with the law of internet jurisdiction. Small claims are sometimes not appealable, so if you get a bad ruling, you might be stuck, no matter the law.

Personal jurisdiction over Air France (technically, "Societe Air France") is easier by conventional measures in Massachusetts, because Air France operates out of Boston Logan airport and has assets and employees there. If I prevail in Rhode Island, Air France can make me register my judgment in Massachusetts to collect. Even though I can demand costs, registration of foreign-state judgments is a hassle, beyond the ken of non-lawyer plaintiffs, and requires an outlay of hundreds of dollars just for filing, even before executing enforcement.

Small-claims filing instructions at Mass.gov purport
to afford venue where a plaintiff works.

Happily, the Massachusetts courts website told me that small claims courts in the commonwealth will exercise venue based on a plaintiff's place of work—or home, or business. I work in Massachusetts. Even better, the courts accept e-filings.

I dutifully prepared all of my paperwork and stepped through the online e-filing procedure. It's not a bad user interface, for the most part. 

Alas, the next business morning, my claim was rejected. I had listed my home address in Rhode Island. The form asked for the address where I wished to receive correspondence, not the address I would use to assert venue. There was no field for another address. 

I called the small-claims office of the clerk in New Bedford, Massachusetts, District Court. Let me be clear here that, first, they promptly answered the phone, which is a lot more than I can say for Air France or Delta; and second, they were very, very kind. My whinging here is no denigration of the people involved, who I believe are trying do their honest best in a byzantine bureaucracy.

They told me, though, that the website is wrong, that Massachusetts courts will recognize venue only for a resident plaintiff, or a plaintiff who owns a business in the commonwealth. At least, they said, I would not be charged the filing fee ($62), and I should get in touch if my card is charged erroneously. 

By email—they have an email address, also more than I can say for Air France or Delta—I sent the office the web page I had relied on—not to hassle them, but seriously, to make sure it's corrected, so that other people, especially non-lawyers, don't waste the time and energy that I did. I also reported the error to the state IT office via the page feedback form.

I then went about several hours' work to file my claim in Rhode Island instead. I run a serious risk that Air France simply will ignore the summons; it has no assets, no liability exposure, in Rhode Island. I can obtain a default judgment. But then, again, I will have to go to the extraordinary effort and expense of registering my judgment in Massachusetts and pursuing an enforcement action there.

After I returned home from the courthouse in Providence, Rhode Island, I received an email from the clerk's office in New Bedford: "Please e-file your complaint and we will accept it."

Sigh.

I'm not going to file right now, I responded, because I don't want to pay for two lawsuits. But if Air France ducks out on the Rhode Island summons, it will be cheaper for me to sue again in Massachusetts, rather than register the foreign-state judgment in non-small-claims district court.

Small claims clerks do not understand corporate service of process. Or they do, and I don't?

A second problem I encountered relates to service of process. Neither Massachusetts nor Rhode Island small claims court would accept a service-of-process address for the defendant. Both insisted that service go to the defendant business address. That policy puts plaintiffs, especially non-lawyers, at risk of dismissal for defective service.

Every business, when it registers with a state government for licensing, in almost any state—I've seen some exceptions, and that's a whole other story in undermining consumer protection, but thankfully, Massachusetts keeps pretty good records—provides a mailing address, where it wants to receive business correspondence, and a service address, specifically for legal service of process. Big businesses, such as Air France, contract with companies, "registered agents," specially in the business of receiving legal notices.

Air France lists a New York corporate address and a Boston registered
agent in its filing with the Massachusetts Secretary of Commerce. 

In the case of Air France, its filing with the Massachusetts Secretary of Commerce lists, not unusually, an address in New York City for the corporate office, and an address in Boston for service to the registered agent, Corporation Service Company. Typically, a business relies on its registered agent only for the initial pleading, and in responsive pleading lists an address for corporate counsel to receive correspondence subsequently.

The Massachusetts e-filing system, which is not bad overall, as I said, has only one field for a defendant's address. Instructions say to provide the address where the defendant receives its correspondence. That's the defendant's corporate address. There is no field for a registered agent at a different address. 

But failing to serve a corporation by way of its registered agent means plaintiff's complaint can be dismissed for defective service. And it seems that someone knows this, because the instructions to users of the e-filing system admonish would-be plaintiffs to look up the defendant's address(es) in the database of the Massachusetts Secretary of Commerce. There's even a link to do so.

If a filing is accepted in the Massachusetts e-filing system, service follows by certified mail. There's a fee assessed for that mailing, simultaneously with the filing fee. There is no opportunity for a plaintiff to add a service address later.

So I emailed the clerk to ask about this problem. Because my filing ultimately was rejected, it never became an issue. But I asked also when we spoke on the phone. 

The clerk to whom I spoke did not seem to be familiar with corporate service of process or registered agents. She said that the small claims office always serves the business address, and that that service would effect legal process. I have my doubts, but at least I shelved that assurance for what I can tell a judge when I'm fighting against defendant's motion to dismiss.

In Rhode Island, there is no e-filing. There is a form for small claims, and it, like in Massachusetts, has only one field for the defendant's address. I entered both addresses there. When filing a civil complaint, a lawyer usually lists a "Serve on:" or "Registered agent:" address below the defendant's corporate address.

But when I went to file, the Rhode Island clerk would have none of it. She, too, seemed baffled by the idea that there would be more than one address for the defendant. She would not accept the filing that way and demanded that I cross out and initial the service address. So I did, muttering, "That's not the law," under my breath. And I filed ($75.75).

I still went by UPS to make a copy of all of the pleading papers ($6.10). I stopped home to scan a copy for myself. And when I went to the post office to send the papers via certified mail, return receipt, I sent sets to both addresses ($11.89 each).

Service of process in Rhode Island is a racket.

In ye olden times, and still when a plaintiff fears a defendant might evade accountability, service of process was effected in person, by a sheriff, constable, or professional process server knocking on the defendant's door. Private investigators sometimes picked up contract service work between meatier jobs. Personal service is so clumsy that it's sometimes the stuff of comedy in movies, such as Pineapple Express (2008).

Now we live in an enlightened age. Well, most of us. Not Rhode Island, the smallest state. Back there in a moment.

In this era of enlightenment, we understand that service of process can be effected more efficiently by paper and ink, through our perfectly well functioning postal system. This, in fact, besides state compulsion, is why companies contract with registered agents: so that we can all agree that that is the address where you send the pleading.

I hear you asking: "OK Boomer, why not use the internet?" Well, first, it's Gen-X to you. We do exist. And please don't be condescending. This is still a developing country. There's nothing wrong with triplicate forms. Press hard.

I have filed small claims in Rhode Island before, and I effected service with the usual certified mail and return receipt, even if I had to overpay the clerk's office to send it for me.

On the backs of complainants,
R.I. sheriffs get a piece of the action.
photo RJ Peltz-Steele CC0 1.0

No more, apparently. Rhode Island now requires that a small claims pro se plaintiff march from the courthouse in Providence, R.I., to the state Sheriffs Headquarters in Cranston, R.I., eight miles away, closes at 4 p.m.!, and there find a sheriff or constable to effect service ($70).

Oh, and stop by a bank or post office, because Sheriffs Headquarters does not take credit cards, debit cards, checks, or cash. You'll need a money order made out to "R.I. STATE SHERIFFS" ($2.65).

Oh, and stop by a copy shop, because you'll need two copies of all the paperwork you brought to the clerk's office, where you were instructed to bring only one, plus two copies of the summons the clerk just gave you ($6).

Alas, there's another wrinkle. R.I. Sheriffs will not serve an out-of-state defendant. How to do that? A flyer at the clerk's office in Providence instructs the pro se plaintiff to "contact that State for service." 

Anyone have the telephone number for Massachusetts? 

I was incredulous. Yet the clerk in Providence was unfazed. I asked whether I could effect service on an R.I. defendant, hypothetically, by sending certified mail, return receipt, myself. No, she said. State law requires that the Sheriffs Office or a constable effect service. I'm not so sure about that, but I'm not a Rhode Island lawyer.

How do I effect service in Massachusetts, then?, I asked. She said she could not tell me, for fear of giving me bad advice about something beyond her purview. Fair enough. But where could I find out?

I figured if certified mail, return receipt, was good enough for the New Bedford District Court, it was good enough for me. And I couldn't see a judge turning me away when I have a return receipt in hand. Still, here we are with another problem that could end the non-lawyer's case before it gets going, and flush the sunken $75 R.I. filing fee down the drain.

When the clerk returned with my summons, after having consulted with a colleague, she said, "You can send this certified mail." That must have been hard to admit. 

Yet it does prompt the question, why is certified mail fine for an out-of-state defendant, but no good for a Rhode Island defendant?

Maybe the sheriffs' slush fund is running short.

Rhode Island requires plaintiffs to prepare paperwork to a point of absurdity.

I did my homework before I went to the courthouse in Providence. I still screwed up. 

I spilled a bucket of printer ink—one of the most expensive liquids on earth, and a whole other story in regulators' failure to protect consumers against unfair and deceptive corporate practices—to prepare my filings for the Rhode Island court. I followed instructions to the letter. I even printed and had notarized an extra copy of the complaint. Not required, but I fancy myself a boy scout!

Let's pause there to note that Rhode Island requires a small claims complaint to be notarized. I used my AAA membership to avail of the service there. Still, I had to stop by that office on my way to the courthouse. That's actually the service I use most frequently at AAA—nothing to do with my car or travel. Someone stopping in at a UPS store for a one-off notarization would have to pay $10 or $15 per stamp.

Notarization of such a filing as routine and small-time as a small claims pleading is not normal in the states; Massachusetts does not require it. And it's profoundly anachronistic, having little purpose: yet another barrier to ordinary people's access to the courts.

But I haven't yet told you the best part.

To file a small claim in Rhode Island, the plaintiff must present, in hardcopy, the court form for the defendant's answer to the complaint, as well as court instructions for how to complete the answer form.

R.I. court instructions in Cambodian stand ready
to aid the New York corporate lawyer who needs them.

Wait, there's more!

The plaintiff also must present four pages of instructions on how the defendant can seek interpreter services, the pages respectively in English, Spanish, Portuguese, and Cambodian.

Cambodian.

The clerk looked at me skeptically and asked, "Do you have the papers for the answer?"

Clearly she anticipated having to send me packing, another schmuck who failed to follow directions. I could not tell from her anticipation whether she relished the seemingly inevitable rebuff, or was just wary of how another frustrated, infuriated claimant might react. 

"Yes," I said, proudly, presenting the papers. A boy scout craves the approval of authority figures.

But I couldn't help myself. 

"I even have instructions in Cambodian for my corporate defendant's team of New York lawyers," I said.

Unfazed.

Alas, I did make a mistake. I had printed the answer form without the instructions. The horror!

In my defense, the user instructions did not specify which version of the answer form to prepare, with or without instructions. I assumed, mistakenly, that it was not my job to tell New York attorneys how to file a responsive pleading, against me, for their transnational corporate client. 

To the clerk's credit, and I do appreciate this, because my parking meter ($1.60) was ticking, she provided me, gratis, a hardcopy of the correct form with instructions to include with my growing portfolio—now 19 pages for a two-sentence complaint.

I understand the need for both the instructions and the interpreter forms when the defendant is an individual. Access to justice is a two-way street, and, say, a landlord who is a frequent flier in the courts should not be able to exploit a tenant's ignorance of legal process and rights. 

But on the face of my complaint, I am suing a transnational corporation with a U.S. office on Broadway in Manhattan. Am I really Goliath in this scenario?

Is there no rule of reason? Or do we just assume that the little people ought not be bothering big corporations anyway?

It is virtually inconceivable that a non-lawyer could navigate the small claims process, at least not without rendering the case vulnerable to dismissal for a procedural fault.

I'm not sure anyone outside the U.S. Chamber of Commerce thinks we do not have an access to justice problem in the United States. And in the marketplace, consumer frustration has hit a record pitch.

Let's review. My claim is straightforward. I contracted for a service and did not get that service. I am suing for the value of the service that I did not get. That's a loss equivalent to $178, or $500, as the legislature decided is a fair statutory minimum.

Besides my hours and hours of time, my barrels of printer ink, and my fuel, parking, and heartache, I have thus far spent $105.63 on my $178 loss. And that's just to get in the courthouse door. If Air France does not answer my complaint, I'm looking at hundreds more dollars for enforcement, even with a default judgment in hand.

And I am only one consumer, of, no doubt, thousands, who bothered to follow up on a broken promise. I'm just one consumer savvy enough to know how to sue, at least in theory. 

No wonder, then, corporate America simply counts on the fact that it can rip off consumers for hundreds of dollars at a time with impunity. Even if one consumer fights back and prevails, the profits are enough to roll around and spill champagne in.

And our legal system facilitates this abuse. Small claims court was devised to redress this very problem, yet the hurdles to clear the entrance gate are so high, the court might as well shut its doors. Let's not forget that I was twice given incorrect guidance by clerks, notwithstanding good intentions, so far in my journey. I'm already supposed to know what I'm doing, and all this is before even getting to the merits of the case.

There are a lot of ways we could reform consumer protection and access to justice. For starters, I should not be bringing this claim. State AGs or federal agencies, at minimum, should be making sure that consumers get what they pay for, or at least that corporations cannot willfully continue deceptive practices after they're made aware of them.

Even writ small, there are countless ways that the ills of local courts, as I've outlined here and no doubt many more, could be fixed to make access to justice just a little bit easier. Our public officials only have to want the courts we pay for to work for people as well as they work for corporations. 

Big Law cowardice calls legal licensure into question

The WAMU podcast 1A put on an excellent show Monday on the White House threats against law firms.

The show featured Princeton University Professor Deborah Pearlstein, Politico reporter Josh Gerstein, and Elias Law Group Chair Marc Elias.

Highlights for me:

• Pearlstein questioned the ethics of the firms that have caved to Administration pressure. How can a client trust Paul Weiss to provide zealous representation, she asked, when the firm so readily caves to political pressure?
• Elias called the deals struck by Paul Weiss and Skadden, inter alia and respectively $40 million and $100 million payoffs in legal services, "cowardly" and "obscene" and questioned whether the practice of law should continue to be protected by the exclusivity of licensing.

Agreed and agreed. I suggest moreover that the weakness of the legal profession and its willingness to sell out for the bottom line has been the American way already for decades. That Big Law has locked down the profession and lobbies anti-competitively to keep it that way—thereby denying access to legal services, legal education, and legal careers to ordinary Americans, while building and bolstering an anti-democratic corporatocracy—is nothing new to those of us who toil away on the hamster wheels beneath the status ceiling.

It's simply Trump's shameless gambit that has exposed the rot.

In the less cowardly vein, Perkins Coie, WilmerHale (Court Listener), and Jenner & Block (Court Listener) are litigating against the executive orders targeting law firms. I anticipate signing on to an amicus brief of law professors in support of the plaintiff motion for summary judgment in the Perkins Coie matter in the U.S. District Court for the District of Columbia.

Update, Apr. 3: Law Professors' Amicus Brief in Perkins Coie v. DOJ (D.D.C. filed Apr. 3, 2025).

Grubhub drivers signed away right to sue, court rules

Haydn Blackey via Flickr CC BY-SA 2.0

Grubhub drivers signed away their right to sue on unfair wage claims, the Massachusetts Supreme Judicial Court ruled today.

Plaintiff Grubhub drivers complained that the company is stiffing them on minimum wages and tips under state law and, worse, retaliating against drivers who complain.

I have no knowledge of the validity of these claims, but I worry a lot about the exploitation of gig workers in our economy. This exploitation is a big slice of the broader problem of employers' over-classification of personnel as independent contractors to avoid having to provide fair wages and benefits. Sometimes employers cross the legal line and sometimes they don't; regardless, the effect of even the lawful leeway contributes to our glut of working people who cannot make ends meet, put us all at risk with insufficient insurance for healthcare and accidents, and spend so much on necessities as to have paralyzed American socioeconomic mobility. Our woefully outdated measures of employment fail to reflect this problem, which is why media pundits and Washington pointy-heads scrunch their faces in confusion over how we can have favorable job numbers and an "it's the economy, stupid" political crisis happening at the same time.

Collateral to labor exploitation, we have long had the problem of our court system being subverted by the supposed freedom to contract. At this point, we all know without even having to read the fine print that every terms-and-condition box we check, just like every product we liberate from shrinkwrap, binds us to arbitrate any disgruntlement and frees our adversaries from ever having to answer to us in the courts, which were designed for that very purpose. Many of us know furthermore that the terms of arbitration profoundly favor the respondent companies, both substantively, evidenced empirically by companies' overwhelming win rates, and, often, procedurally, by way of inconvenient venues, arcane procedures in contrast with small claims courts, and the burdens of transaction costs.  I've cited the definitive books on this subject by Nancy Kim and Margaret Jane Radin so many times, that, frankly, I just don't have the energy today to look up their URLs again.  Let's instead invoke the tireless Ralph Nader and his persistent admonition that we have undermined the Seventh Amendment, to which point I add humbly that anti-vigilantism is an important function of our civil dispute resolution system, and maybe we ought remember that in a society in which the least mentally stable among us apparently have ready access to firearms.

So it's the confluence of these two socio-legal problems that interests me in the present case, more than the merits. On the merits, the Grubhub complainants tried to work around their 2017 clickwrap agreement to arbitrate by characterizing themselves as a kind of interstate transportation worker that is exempt from the Federal Arbitration Act. But Grubhub drivers are not long-haul truckers. A for creativity, F for achievement. The court held that the drivers indeed signed away their right to sue.

F is likely to be the final disposition of the complaints in arbitration after remand, too.

You can read more in Archer v. Grubhub, Inc., No. SJC-13228 (July 27, 2022). Justice Dalila Argaez Wendlandt wrote the unanimous opinion (temporarily posted).  The case in Suffolk County Superior Court is no. 1984CV03277 (class action complaint filed Oct. 21, 2019).

The U.S. Chamber, dependable opponent of transparency and accountability, was among the amici on the prevailing side.  The Harvard Cyberlaw Clinic was among the amici for the workers. The office of Commonwealth Attorney General Maura Healey entered an appearance as amicus, but filed no brief. Healey's office sued Grubhub one year ago, alleging the company overcharged Massachusetts restaurants during the pandemic (complaint, press release). That case, no. 2184CV01719 in Suffolk County Superior Court, is pending currently on cross motions for summary judgment.

'Civil death,' denial of tort claims, violates prisoners' right of access to courts, R.I. high court holds

N.C. State Archives public domain photo via Wikimedia Commons

The Rhode Island Supreme Court in March struck down the state "civil death" statute, which disallowed civil claims by inmates imprisoned for life.

The statute at issue states:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction. However, the bond of matrimony shall not be dissolved, nor shall the rights to property or other rights of the husband or wife of the imprisoned person be terminated or impaired, except on the entry of a lawfully obtained decree for divorce.

Alleging negligent maintenance, one plaintiff-inmate complained "that his arm was severely burned and permanently disfigured when he made contact with an exposed hot water pipe at the [prison]." Another alleged negligence when he slipped and fell after being compelled "to walk across an icy walkway at the [prison]." The trial court rejected both claims as barred by the "civil death" statute.

I was shocked to read of this case in my home state's Providence Journal; I never had heard of a "civil death" statute. The R.I. ACLU provided some background:

Rhode Island was apparently the only state in the country still enforcing a law like this, whose origins date back to ancient English common law. As far back as 1976, a court struck down Missouri's civil death statute, noting that "the concept of civil death has been condemned by virtually every court and commentator to study it over the last thirty years." The court observed that such laws had been characterized even before then as "archaic," "outmoded," "an outdated and inscrutable common law precept," and "a medieval fiction in a modern world." In 1937, when 18 states still had civil death laws, a law review article called the concept "outworn."

Applying the 1843 state constitution (article 1, section 5), a four-justice majority of the Rhode Island Supreme Court had little trouble reaching the conclusion that I thought was obvious, that the law violates the fundamental due process right of access to the courts.

Justice Lynch Prata
(via Ballotpedia)

Employing strict scrutiny, the court acknowledged that "civil death"

functions as an additional sanction imposed upon some of the state's worst criminals and furthers the goals of punishment and deterrence. This Court has recognized that "[t]he loss of civil status as a form of punishment is a principle that dates back to ancient societies." .... However, it is our opinion that this particular additional punishment is not a compelling reason to override the right of access to the courts that is textually guaranteed by the Rhode Island Constitution.

Justice Goldberg
(via Ballotpedia)

Even were the statute supported by a compelling state interest, it is not narrowly drawn, the court further opined, as it fails to distinguish between prisoners based on their eligibility for parole.

Justice Maureen McKenna Goldberg dissented. "Prison inmates, especially life prisoners, are not entitled to the same degree of constitutional rights as are members of society at large," she wrote, "and that includes the right to bring tort claims against the warden for a slip and fall or a burned hand." She would have narrowed the question to the plaintiffs' negligence claims and upheld the statute.

"In my more than two decades of service on this Court, I cannot recall ever having declared a statute to be unconstitutional," Justice Goldberg opined. "[T]his should not be the first case with such a drastic result in light of our longstanding jurisprudence."

The case is Zab v. R.I. Department of Corrections, No. 2019-459-Appeal (R.I. Mar. 2, 2022). Justice Erin Lynch Prata wrote the majority opinion.

A former state senator Judge Prata was nominated to the court by Governor Gina Raimondo in December 2020, just three months before she left office to become the U.S. Secretary of Commerce. Justice Lynch Prata is 2000 graduate of Catholic Law, for which I periodically teach as a visitor. Judge Goldberg is the senior-most justice on the court, having served since her appointment in 1997.

Human life, human rights are the losers in unraveling Chevron-Ecuador litigation

Crude contaminates an open toxic pool in the the Ecuadorean Amazon
rainforest near Lago Agrio.  Photo by Caroline Bennett / Rainforest
Action Network, CC BY-NC 2.0.

[UPDATE, May 24, 2019: SDNY Judge Kaplan yesterday held Donziger in civil contempt.  Read more from Michael I. Krauss at Forbes.]
 
Court rulings are stacking up against the plaintiffs in the global Chevron-Ecuador litigation.  About a month ago, the Dutch Supreme Court, affirming arbitral orders, refused enforcement of the $9.5bn judgment that Ecuadorean courts entered against Chevron, successor to Texaco, for oil pollution at Lago Agrio, feeding into the Amazon River (e.g., AP).  Plaintiffs’ appeals have fared poorly since Canadian courts rejected enforcement earlier in April (e.g., Reuters), piling on adverse outcomes in the United States, Brazil, and Argentina.

Now an opinion headline in Oakland News Now—if atop a column authored by a self-professed “influencer” who decidedly favors Chevron—trumpets that plaintiffs’ attorney “Steven Donziger, … Once The Toast Of Hollywood, Is Now Simply Toast.”  Notwithstanding that dry, I mean wry, assessment, it is true that Donziger was ordered in March 2018 to reimburse Chevron for more than $800,000 in legal fees as part of equitable relief in a private RICO action in the Second Circuit, and subsequently he was pressed to defend his bar license.  He maintains that he and his allies are being victimized in a political-hit orchestrated by Big Oil.

If you’re new to the Chevron-Ecuador case, beware the rabbit hole.  It’s almost impossible to summarize how we’ve come to this point in the course of a quarter century.  The quickly dated 2015 book Law of the Jungle by Paul M. Barrett is still an excellent and objective port of entry (Amazon).  (My co-instructor/spouse and I plan to assign it in our comparative law class in the fall semester.)  You also can read about the case through the columns of George Mason Law Professor Michael I. Krauss at Forbes; he’s followed developments closely over the years.

In short, there was some awful pollution in remote oil fields in Ecuador, reckless extraction and vacant regulation in the 1970s and 1980s wreaking devastating, long-term, far-reaching, and literally downstream consequences to human life and the environment.  That part is hardly in dispute.  What has been less clear and is hotly contested is whom should be blamed.

Enter the polarizing personality of Donziger, Harvard Law ’91, who, it must be said, is a genius for having designed a new model of global environmental litigation.  He solicited wealthy and famous, like, Sting famous, investors to raise money for the high costs of litigating against transnational Big Oil behemoths in an effort to tame them with the rule of domestic law.  At what point Donziger’s litigation lost the moral high ground—somewhere between the get-go and never—is the subject of much speculation.  However, that corruption was rampant in Ecuadorean courts is beyond dispute, and the role of the lawyer when justice might require, say, cash prepayment of a new “court fee,” raises some thorny questions in ethics and cultural relativism.  What is for sure is that when you start talking about Big Oil as occupying the moral high ground, something already has gone terribly wrong.

One can only make an informed guess about where liability for Lago Agrio should land.  Texaco/Chevron probably bears a slice of moral, if not legal, responsibility, at least in a strict-liability, “Superfund” sense.  But through an unascertainable and poisonous mix of lax regulation, corruption, foolhardy assumption of responsibility, and their own recklessness practices, the state of Ecuador and its state-owned enterprises (SOEs) in oil extraction were vastly enriched and probably bear principal responsibility for the disaster, morally and legally.  Arguable then is how thoroughly moral responsibility should flow back to the industrialized world along the pipeline of oil demand; I won’t step into those inky depths.

Donziger and the Ecuador litigation is a capstone course for law school, so I’m not here to state a thorough explication.  I mention the case because it strikes me that it exemplifies two serious problems in contemporary tort law, intersecting on this unusual tangent.

The first problem is that both state actors and transnational corporations operate above domestic law and without accountability to private claimants in international law, and that portends a disastrous end to life on earth.  What ought not be forgotten about the Chevron-Ecuador legal fiasco is that underneath all of the legal finger-pointing, there remains an unmitigated environmental catastrophe.  And what’s worse, it’s ongoing.  Ecuadorean operations in the area still use reckless extraction processes such as unlined oil pits, and Big Oil is bidding to reclaim a piece of the action.  People are still being poisoned, and the Amazon is still being polluted.

Meanwhile, follow the oil downstream, and Hasan Minhaj will show you (embedded below) how Brazil is newly doubling down on rain forest destruction.  I’m talking about the good old-fashioned, small-animals-fleeing-for-their-lives-from-set-fires-and-bulldozers kind of destruction that was the stuff of my childhood nightmares in the dark age before we recycled.  Human civilization and our rule of law on earth have not yet figured a way to attack this problem on the international level, much less to protect the human rights of local citizens within an offending country.  Our own alien tort statute was recently defanged vis-à-vis transnational corporations—in a case about Big Oil, by the way—and it’s not clear that the law’s landmark 1980 application in Filártiga v. Peña-Irala, bringing a foreign state torturer to justice, would even be upheld in federal court today.

The second problem is that in places where we do observe the rule of law, namely, here in the United States, legal transaction costs have spiraled so high that our courts have become available only as playgrounds for the rich and powerful, whether to settle disputes among themselves, subsidized by us, or to quash the claims that we, the little people, might dare to file in our puny arrogance.  We know this problem on the mundane, ground level as “access to justice.”  I suggest that this is the same problem that Donziger—giving him the benefit of the doubt at the get-go, for the moment, assuming reasonably that his multitude of motives must at least have included compassion for victims of pollution among the world’s poorest people—was up against in trying to take on Big Oil.  Documents in the RICO case contain tidbits about Donziger’s financing, such as a rock star’s “two equity positions in the case, one for 0.076 percent and 0.025 percent.”  It turns my stomach to read about human rights litigation as an investment opportunity, perhaps ripe for an initial public offering.  (“Call now for your free report; first time callers can get a free tenth-ounce Silver Walking Liberty Coin!”)  If that’s how we’re setting legal norms around human rights and deterring threats to human life, then that says more about us than it does about Steven Donziger.

These are the days that I want to give up on the human experiment and hunker down in willful ignorance to marshal my resources and plan for a contented retirement.

Though I’m a little short on resources.  Can I still buy shares in that Roundup litigation?