9/11 widow calling out U.S.-Saudi coziness highlights failure of liability regime to deliver justice

Flag from Ground Zero appears in September 11 commemoration
last week at American History Museum in Washington, D.C.
G. Edward Johnson via Wikimedia Commons CC BY 4.0

"Tell the Saudis to stop lying," a September 11 widow told the 25th annual memorial gathering in New York City on Friday.

Terry Strada is the widow of Thomas S. Strada, a father of three and Cantor Fitzgerald bond broker killed in the terrorist attack on September 11, 2001. She broke the tradition of exclusively apolitical statements at the annual memorial. But she drew applause from the crowd and shamed the assembly of every living former President and the current Vice President, who were there.

Here's more of what Strada had to say, from The Hill:

"For 25 years, administration after administration, including leaders in front of us here today, chose to protect the Saudis instead of standing with the 9/11 families," she said. 

"They withheld evidence," Strada continued. "They vetoed JASTA [Justice Against Sponsors of Terrorism Act]. They broke promises, both public and private. It has been one betrayal after another."

"Tell them that if they want to be friends with the USA, they cannot continue to deny all of this, all of the pain, all of the destruction that we have all been suffering through," Strada said.

The Guardian has further coverage. 

There's no disputing Strada's facts. Twenty-eight pages of the 2002 congressional report on 9/11 were redacted for 14 years and did show possible ties, though nothing definitive, between Saudi officials and 9/11 hijackers. Many 9/11 records, including parts of the 2002 report, remain classified and have dribbled out over the years, including daily presidential briefings released just last week. Tim Burke at the Freedom of the Press Foundation has more on the latest. The City of New York also dumped a document trove into sunlight last week, including revelations of especial interest to first responders showing what officials knew about dangerous air quality.

Both Bush and Obama administrations tried to protect the Kingdom of Saudi Arabia (KSA) from accusations of 9/11 responsibility. The United States is not dependent on Saudi oil. But the White House saw, and still sees, KSA as an essential diplomatic and military partner in Middle East security.

In 2016, President Obama did veto JASTA. Congress overrode the veto five days later. The law waives foreign sovereign immunity in civil claims against foreign governments that aid and abet terrorism, whether with action or with money. 

Legislators were not so noble as it might seem. They knew well that JASTA claims would be next to impossible to prove against KSA, especially while 9/11 intelligence remained classified. So JASTA was really symbolic, something to boast about back home in the district. September 11 families would be pacified for a time while preoccupied with the bureaucracy of civil litigation.

Even if JASTA plaintiffs could obtain evidence, they would have a hard time ever proving a causal chain from the Saudi state to the 9/11 attacks. KSA might have ignored warning signs—so did the United States—but was hardly looking to destabilize geopolitics and send energy demand into free fall.

Indeed, since 2016, no JASTA suit has gained serious traction. A much touted suit against Israel in 2017 has gone nowhere and certainly has not been a deterrent to Israeli warfare. Iran has not even defended against JASTA suits and has suffered default judgments. That just moves plaintiffs into enforcement actions in the United States, in which they've been profoundly unsuccessful. Administrations of both parties have intervened against the plaintiffs, preferring that the government control Iranian assets to use them for diplomatic leverage.

The determination of Strada and other JASTA plaintiffs despite long odds, dim enforcement prospects, and opposition of their own government is a stirring reminder of the manifold purposes of tort law, or civil dispute resolution more generally. The U.S. tort system tends to emphasize, usually to a fault, the aim of compensation. But most 9/11 plaintiffs have received some compensation already from the federal victim compensation find.

Rather, plaintiffs in many types of cases, and especially in wrongful death, are usually after something else entirely. No amount of money can bring back a loved one. But justice is a relentless motivator.

Nevertheless, the law never has favored compensation for plaintiffs in U.S. courts for matters implicating foreign affairs. The preference is partly structural. The Constitution provides roles for both the executive and legislature in foreign policy. Congress often has abdicated, justifiably and not. But foreign policy in any event was always to be policy, by design, a matter of distributive justice for the political branches, not a problem in corrective justice for the courts. 

The preference also is political and is less defensible in that vein. As money became the lingua franca of Washington especially in the post-World War 20th century, policymakers became reluctant to trust courts, much less civil complainants, with regulatory influence over powerful and wealthy actors. In other words, the grubby hands of the unwashed masses must not be allowed to derail the gravy trains of the elite. The distaste for civil complainants against states supporting terrorism is a cousin, and not even a distant one, of the reluctance to create private causes of action in civil rights and consumer protection. 

In an outcome under-reported by mass media amid the usual flurry of Supreme Court opinions late in the last term, in Cisco Systems, Inc. v. Doe, in June, the Court disallowed a lawsuit accusing a U.S. corporation of knowingly developing technology for the Chinese government to facilitate the identification, arrest, and torture of members of the Falun Gong spiritual movement. The Court ruled out both corporate liability under the 1789 Alien Tort Statute (ATS) and aiding-and-abetting liability under the Torture Victim Protection Act (TVPA), appended to the ATS in 1991.

Both conclusions are debatable on the merits; the Court ruled 6-3. But more significant is the problem that remains: whether, or when and how, transnational actors can be held accountable in the United States for their complicity in human rights violations abroad.

As the United States has sought to eschew judicial involvement in foreign matters, other nations and the international legal system have been trying to step up. There is needed and dawning recognition around the world that transnational actors, public and private, have for too long been permitted to operate above the law. From Big Oil in South America, to Big Ag in Africa, to Russia in the former SSRs, the supposed rule of law has failed to stop bad actors from literally getting away with murder.

Which brings us back to KSA. To be fair to the past presidents, the United States always has been in a tough spot with the Saudis.

KSA seems to enjoy impunity in the murder of Jamal Khashoggi, oppression of dissidents at home and abroad, dubious policies on gender and sexual orientation equality, religious freedom, and immigrant labor, and financing war in Syria and Yemen. I'm not saying all such Saudi policies are indefensible, and I'm not letting the United States off the hook for its own issues. I mean only that there seems to be no official inquiry at all; other nations fairly accuse the United States of a double standard. 

The pandering of Bush, Obama, Biden, and Trump to Saudi royals is perennially stomach-churning. Western politicians will smile and abide when KSA hosts the 2034 FIFA World Cup, just as they abided Saudi acquisition of LIV Golf (until this year), Newcastle United, and Electronic Arts. And the United States is moving forward (probably) on an agreement to share nuclear technology with KSA for, one hopes, only civilian applications. 

And no wonder. The United States and KSA continue to rely mutually on strategic alliance for security interests in the Middle East. Meanwhile, Trump and allies, including son-in-law Jared Kushner, are profiting handsomely from Saudi investments.

One might wonder whether a time will come to pay the piper. Late last week, KSA grew frustrated as Iran-backed Houthi rebels seized from Saudi-financed government forces the entire Red Sea coast of Yemen. The Houthis thus gained control—this might sound familiar—of a vital strait and key islands in the transit of oil.

About the same time, KSA suffered a drone attack on its East-West oil pipeline. The massive conduit, stretching 1,200 km (746 miles), vital in the best of times, is a critical overland bypass to the Strait of Hormuz. The attack came from Iraqi territory, but almost certainly was the work of Iran-backed forces, and the timing dovetailed with the Houthi advance. The pipeline is shut down now for damage and risk assessment. I hope you filled your gas tank over the weekend.

In the wake of this one-two punch, reports say that Crown Prince Mohammed bin Salman (MBS) himself—whom you might remember from such hits as the Khashoggi dismemberment and Biden fist bump—asked the White House to intervene militarily against the Houthis. Middle East commentator Professor James M. Dorsey observed analogously seven years ago: "The Saudis do not want an open conflict with Iran. The Saudis would like others to fight that war, and the others are reluctant."

Whether or not Trump personally felt inclined to oblige in Yemen, U.S. military resources happen to be running thin. And Republicans campaigning for midterm election would go into full meltdown if the country were to go to war on a second front.

So the President had to let down his Riyadh chum, but did pledge to send 200 military advisers to beef up intelligence sharing. Why does that also sound familiar (inflation since 128 in 1950)? Well, don't worry, the President said. He had a call with MBS, and "everything's going to work out fine and dandy. It's going to be very good."

A deepening Saudi alliance, a merely symbolic JASTA, and a neutered ATS: Seems to me that the United States is succumbing to sycophancy as its place in the new world oligarchy.

Court rejects 'super tort' theory in suit alleging animal cruelty, though concurrence mentions rights of nature

Kodiak bear at Olympic Game Farm, a private zoo in Washington.
Analise Zocher via Flickr CC BY 2.0

The Animal Legal Defense Fund tried but failed in August to convince the Washington Supreme Court to treat animal cruelty as an actionable "super tort."

The nonprofit Animal Legal Defense Fund (ALDF) sued a private zoo in Washington, alleging animal cruelty under state public nuisance law. In mid-August, the Washington Supreme Court rejected the theory as beyond the scope of the statute.

It is a clever theory. Like environmentalists, animal protection organizations face high hurdles using tort law to advance their work. Animal cruelty laws often are not vigorously enforced by public authorities and provide scant mechanisms for private enforcement. Nonprofits usually have no standing to sue without a statutory authorization.

State and local governments lately have been pushing nuisance law as a potential accountability mechanism for all kinds of social ills. Nuisance is a leading theory in lawsuits against Big Oil for the impact of climate change. And some governments found success with nuisance to leverage settlements with opioid sellers.

But this "super tort," as termed by the defense bar and tort reformers, is problematic for policy reasons. Overusing the tort system to regulate business exceeds the bounds of corrective justice, threatening the free market and the organic social contract. The courts are not equipped to make policy, and it's not their function in the constitutional design of separated powers. Converting, or perverting, social problems into civil litigation thus bypasses the political branches of government, enervating democratic accountability and threatening unintended consequences.

In 2020, I wrote about this issue in the context of the Rhode Island suit (my home state) against Big Oil. I spoke about the problem to a Jagiellonian University audience via Zoom earlier that same year.

Some states, such as Washington, allow the enforcement of public nuisance law with "private attorney general," or "citizen-suit," provisions. The potential for public authorities to expand the scope of public nuisance is thus multiplied by willing and creative advocacy organizations.

ALDF theorized that animal cruelty, which the nonprofit alleged in suing the private zoo in Washington, constituted a public nuisance. That's a reach, but not irrational.

Pollution, or environmental damage, is the classic example of a public nuisance.  A die-off of fish in a public waterway might adversely affect the interests of waterside property owners, but there is no incursion on any one property such as creates a privately enforceable nuisance. Public authorities are obliged to respond to the problem as a matter of policymaking—thus, environmental protection law and regulation. Add citizen suits to the public nuisance mix, and environmentalists acquire enforcement power.

ALDF's wish to enforce animal cruelty law is a short leap through analogy in natural resource protection. Moreover, nuisance law in some states has a "per se" concept, like negligence law, by which the standard of right and wrong can be informed by statute. So ALDF bolstered its public nuisance claim by pointing to anti-cruelty statutes and wildlife conservation laws as public policy properly pronounced by the legislature.

ALDF further analogized to a peculiar but exigent strain of public nuisance law tied to morality.  In my 2020 talk, I made scant reference to this theory, in the interest of succinctness, but probably I should have given it a more respectful nod.

Historically, public nuisance law was used to shut down the likes of brothels and saloons.  Sometimes red-light businesses externalize costs to surrounding property owners that are real but difficult to quantify—consider the long-running feud between a Chicago-area strip club and next-door nuns, by which the convent alleged injury by "secondary effects" (as known in First Amendment law), such as crime and litter.  But many times, too, public nuisance laws have been invoked on the mere basis of moral objection.

In that sense, runaway public nuisance is a problem of the law's own creation.  Common law courts opened the door to nuisance in the moral abstract, untethering the concept from physical property.  ALDF just stepped through the door.  Society's intolerance of animal cruelty is a moral statement no less than condemnation of human trafficking.  As an animal advocate myself—full disclosure, I'm a founding faculty adviser of the student ALDF chapter and a past ALDF supporter—I find this theory appealing.

To be objective, though, the difficulty arises in that not everyone, least of all the legal system, embraces ALDF and my view of unequivocal morality in the area of animal cruelty.  The law permits even purely recreational hunts to kill exotic animals.  For all her worthy work, even Temple Grandin has not succeeded in making humane methods universal in food production.  Despite advancements in the recognition of human grief as a compensable loss in tort claims for injury to pets, the law continues to regard animals, for the most part, as mere chattel.

Such was the tone of the Washington Supreme Court's response to the ALDF claim.  ALDF could not articulate a conventional nuisance theory, in the way of interference with peace and enjoyment of land, and the court refused to engage with ALDF's theory as a matter of policy indicated by the animal cruelty or wildlife conservation laws.

"While ALDF cites to some cases that identify wildlife as a public resource," the court opined, "it cites no cases or statutes indicating that the public has a right to use that resource as it sees fit or has any individual, personal property rights in wildlife."

ALDF pointed to a seeming precedent to no avail. ALDF prevailed in a claim against a Wisconsin private zoo in federal court last year, winning a permanent injunction on a citizen-suit nuisance theory. However, the defendant had given up the fight partway through and allowed a default judgment to be entered. The Washington Supreme Court observed that the federal trial court in the case made no ultimate finding of fact that the private zoo was a nuisance.

In concurrence, Chief Justice Steven C. González left the door open, just a crack, and made a shout out, remarkably, to the theory of the rights of nature (RoN), if not by name.  Though agreeing with the holding, the chief opined (selective citations omitted; links added):

[T]he world has changed much since the days when King Henry II, Kukulkan, and the Great Khan were young. Now, the private use of land has profound potential to harm our ecosystem and the various species we share it with. It may well be time to heed Justice Douglas's call to consider whether those places and things threatened with environmental catastrophe should have standing in court to sue for their own injuries. See Sierra Club v. Morton ... (U.S. 1972) (Douglas, J., dissenting) (citing Christopher D. Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972)). Thus, I am wary of fully endorsing the majority’s sweeping conclusion that "[w]here the statutory framework and case law do not support a claim, none exists."

I'm all for ALDF's objectives, just like I'm gravely concerned about the impact of the opioid crisis. And I value the chief's assessment of common law evolution, an important capacity of American tort law that often is marginalized or forgotten in contemporary practice.  I have hastened to recognize the potential of common law evolution to reflect, not make, social policy in areas such as privacy and data protection.

But I worry, too, about misuse of the courts to make social policy; what the public will to do so tells us about possibly catastrophic dysfunction in the political branches; and what that means for the fabric of our democracy.

The case is Animal Legal Defense Fund v. Olympic Game Farm, Inc., No. 101264-1 (Wash. Aug. 17, 2023) (ALDF commentary).  Associate Chief Justice Charles W. Johnson wrote the opinion of the court.

Libro estudia poder de corte constitucional ecuatoriana

El abogado Ugo Stornaiolo Silva ha publicado un libro, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Amazon). (English below.)

Stornaiolo es un abogado ecuatoriano y estudiante de LL.M. Nos conocimos cuando él era estudiante mío en el Programa de Derecho Americano de la Universidad Católica de América en la Universidad Jagellónica de Cracovia, Polonia. Visitó generosamente mi clase de Derecho Comparado en UMass, a través de Zoom en la primavera, para hablar sobre derecho constitucional comparado, especialmente a la luz de notables decisiones recientes de los tribunales ecuatorianos con respecto a los derechos indígenas y los derechos de la naturaleza.

Aquí está el resumen del libro nuevo.

Por lo dispuesto en la Constitución actualmente vigente, la Corte Constitucional ecuatoriana es una de las instituciones más importantes del diseño constitucional ecuatoriano, y sus extensos poderes, sin contrapesos o fiscalización, podrían sugerir que es un ente soberano dentro de nuestro país frente a una institucionalidad de poderes separados que no puede ejercer sus funciones fuera de su control.

Sin embargo, la soberanía de la Corte Constitucional no es un fenómeno expreso, por lo que demostrar su condición soberana podría significar un cambio de paradigma en el entendimiento crítico de nuestro propio ordenamiento político y jurídico.

Stornaiolo escribe para el websitio, The Libertarian Catholic (El Católico Libertario). Para conocer una muestra en inglés de su trabajo sobre el constitucionalismo ecuatoriano, consulte su artículo de 2021,  "Originalism and Textualism Are Not Enough Against Constitutional Lawfare" ("El Originalismo y el Textualismo No Son Suficientes Contra la Guerra Jurídica Constitucional").

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Attorney Ugo Stornaiolo Silva has published a book, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Judges as Sovereigns: A Legal-Political Exploration of the Supreme Power of the Ecuadorian Constitutional Court) (Amazon).

Stornaiolo is an Ecuadorean lawyer and LL.M. student. We met when he was a student in my class in the American Law Program of The Catholic University of America at Jagiellonian University in Kraków, Poland. He generously visited my Comparative Law class at UMass, via Zoom in the spring, to talk about comparative constitutional law, especially in light of recent noteworthy decisions by Ecuadorian courts regarding indigenous rights and the rights of nature.

Here is the précis of the book (my translation).

Based on constitutional law as presently in force, the Ecuadorian Constitutional Court is one of the most important institutions in the Ecuadorian constitutional design, and its extensive powers, without checks or oversight, could suggest that it is a sovereign entity within our country, in opposition to the separation-of-powers framework, by which one cannot exercise power beyond the scope of authority.

However, the sovereignty of the Constitutional Court is not an explicit phenomenon, so demonstrating its sovereign condition could mean a paradigm shift in the critical understanding of our own political and juridical order.

Stornaiolo writes for the website, The Libertarian Catholic. For a taste in English of his work on Ecuadorian constitutionalism, check out his 2021, paper,   "Originalism and Textualism Are Not Enough Against Constitutional Lawfare."

Israeli law profs raise alarm over judicial reforms

Proposed judicial reforms in Israel have set off a firestorm with critical characterizations comparing Prime Minister Benjamin Netanyahu with the likes of Jair Bolsonaro and Viktor Orbán.

Israel has seen a possible division—now familiar to the United States, cf., most recently, the House Speaker election (NPR)—between a traditionally conservative right and a more extreme right since Netanyahu retained office by allying with parties NPR characterized as "ultra-Orthodox religious" and "ultra-nationalist."

The reforms, which are not yet law, comprise two plans The New York Times described:

Under the first plan, a simple majority of lawmakers could override almost any revocation of parliamentary legislation by the Supreme Court, which can currently block laws on constitutional grounds. The court would only be able to prevent itself from being overruled by Parliament if all of its 15 judges unanimously agreed about the need to block a law.

Under the second plan, the government would be able to appoint a majority of the members of the panel that selects new judges, upending the current system in which government appointees form only a minority of panel members.

Israeli Supreme Court with Knesset behind.
Israeltourism via Wikimedia Commons CC BY 2.0

On the one hand, the proposals would weaken the Israeli judiciary. But some commenters, such as American conservative Josh Hammer, have observed that the proposals are not radical. My colleague Professor Dwight Duncan has argued that a U.S. Supreme Court majority, or at least super-majority, should be required to strike down legislation as unconstitutional. Arguably, the approach better balances the legislative and judicial branches than does extra-textual judicial supremacy. The second proposal would effect a selection process hardly more partisan than federal judicial appointments in the United States.

On the other hand, Israel is not America, and it might be a more urgently pluralist democratic experiment. As well, the ways of our dated Constitution are hardly exclusive pronouncements of best practices. In the context of populist executive aggrandizement in places such as Brazil and Hungary, and subordination of judicial power, as in Poland, the Israeli reform proposals are at least cause for concern.

Objections have come not only from Israeli liberals, but also from economic conservatives, who don't want the economic apple cart upset. The Jewish Telegraph Agency explained, "Foreign investors and international credit agencies have both signaled that if the reforms go through, they will downgrade their estimation of the country," disrupting perception of Israel as "a democratic oasis in the Middle East" possessed of "business savvy."

For the reform side, a proponent think tank posted a perhaps-too-playful, Schoolhouse Rock-style video on Twitter. For opponents, I received Friday from my friend and colleague Professor Roy Peled a statement signed by 198 Israeli professors, including, Professor Peled wrote, the majority of faculty from 13 law schools in Israel. The brief statement reads:

We, senior academic members of staff at law faculties in Israel, strongly oppose the regime change that the Israeli government is promoting under the guise of “legal reforms”. These far-reaching constitutional changes include providing the government with absolute control over the appointment of the judiciary; near complete elimination of judicial review; dissolution of civil-servant ministerial legal counsels as gatekeepers; and undermining the freedom of the press. In aggregation, these proposals suffocate the independence of the judiciary, dissolve the separation of powers between the branches of governments, and eliminate the rule of law. No recognized democratic country in the world operates under such conditions. The combination of the proposed changes is alarming and dangerous. It will bring far-reaching infringements of human rights, and strip Israel’s system of government of fundamental features of its structure as a democracy.

We call on those involved in the legislative process to avoid hasty constitutional legislation that would transform the character of the State of Israel, and we urge them to initiate a process of open, respectful, and tolerant deliberation with the aim of reaching broad agreements on these deeply consequential matters.

I'll park a copy of the letter with its signatories here for the next few months.

UPDATE, Jan. 31, 2023: Professor Peled today sent news of a companion statement by U.S. law professors.

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

Toll gantry on a bridge in Washington
(Flickr by Wash. State DOT CC BY-NC-ND 2.0)

The First Circuit has quashed a subpoena against Rhode Island state officials, including now-U.S. Commerce Secretary Gina Raimondo, in a dormant Commerce Clause lawsuit over highway tolls supporting infrastructure.

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

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

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

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

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

Flickr by Taber Andrew Bain CC BY 2.0

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

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

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

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

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

However, the First Circuit opined:

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

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

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

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

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

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

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

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

Emergency orders survive constitutional scrutiny; Mass. Court cites Korean War, smallpox cases

The Massachusetts Supreme Judicial Court (SJC) ruled Thursday that pandemic emergency orders of the Commonwealth Governor were valid under the Massachusetts Civil Defense Act and public health law, rejecting challenges based in state and federal civil rights, including due process and the freedom of assembly.

Defunct Youngstown Sheet & Tube Co., 2006 (stu_spivack CC BY-SA 2.0)

The Court borrowed doctrine from U.S. constitutional law on separation of powers, Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952), a case about President Truman's seizure and operation of steel mills during the Korean War.  The SJC used Youngstown and the concurring opinion of Justice Robert H. Jackson to reason that Governor Charlie Baker acted at the zenith of executive power, because he acted within broad statutory authority.

Official portrait of Justice Jackson,
by John C. Johnsen, Collection of the
Supreme Court of the United States, via Oyez

In Youngstown, Justice Jackson set out a three-part rubric to test the strength of executive power, whether bolstered by congressional authorization, occurring amid legislative silence, or arising in defiance of legislative imprimatur.  Though not without controversy attaching to the communitarian result in the context of government seizure of private enterprise, Justice Jackson's famous test has been committed to memory by law students studying for the bar exam for generations.  Justice Jackson was Attorney General to President Franklin D. Roosevelt, so loyal to the New Deal.  Roosevelt appointed Jackson to the Court in 1941.  While a Supreme Court Justice, Jackson also served as chief U.S. prosecutor in Nuremberg after World War II.

Ruling the pandemic within the scope of "other natural causes" of emergency under the Civil Defense Act (CDA), the Court indicated also that it was not shirking its oversight role:

[W]e emphasize that not all matters that have an impact on the public health will qualify as "other natural causes" under the CDA, even though they may be naturally caused. The distinguishing characteristic of the COVID-19 pandemic is that it has created a situation that cannot be addressed solely at the local level. Only those public health crises that exceed the resources and capacities of local governments and boards of health, and therefore require the coordination and resources available under the CDA, are contemplated for coverage under the CDA. Therefore, although we hold that the COVID-19 pandemic falls within the CDA, we do not hold that all public health emergencies necessarily will fall within the CDA, nor do we hold that when the public health data regarding COVID-19 demonstrates stable improvement, the threshold will not be crossed where it no longer constitutes an emergency under the CDA.

Mass. Gov. Baker (Charlie Baker CC BY-NC-SA 2.0)

Relative to civil rights, the Court recognized the Governor's argument under Jacobson v. Massachusetts (U.S. 1905).  A federal Supreme Court case that arose in Cambridge, Massachusetts, at the turn of the century before last, Jacobson has been cited widely lately, amid the coronavirus pandemic, because in Jacobson, the Court upheld an ordinance requiring vaccination for smallpox as a valid exercise of state police power.

Critics fairly argue that Jacobson is read too broadly as a constitutional authorization of mandatory vaccination.  Among points of distinction, the upheld ordinance merely subjected an objector to a five-dollar fine—about $150 today, much less than the individual-healthcare-mandate penalty before Congress zeroed it out.  More importantly, Jacobson predates the complex system of multi-tiered constitutional scrutiny that the U.S. Supreme Court devised under the due process clauses of the Fifth and Fourteenth Amendments in the 20th century. 

Justice Cypher

The SJC quoted Jacobson's logic in some detail "as an initial matter," but declined to give the Governor carte blanche, instead applying 20th-century due-process scrutiny.  The Court rejected procedural due process arguments because the emergency orders occasioned no individual adjudication, and rejected substantive due process because the generally applicable orders satisfied rational-basis review.  The selection of "essential" businesses was non-arbitrary and did not treat disparately any protected class, such as religious institutions.

Similarly with regard to the freedom of assembly, the Court regarded the emergency orders as valid time, place, and manner restrictions, appropriately narrowly tailored to a significant government interest in intermediate scrutiny, leaving open ample alternative channels of communication.

The case is Desrosiers v. Governor, No. SJC-12983 (Mass. Dec. 10, 2020).  Justice Elspeth B. Cypher authored the opinion for a unanimous Court.

'Super tort' might represent failure of public policymaking, but is only tip of melting iceberg

First Circuit remands R.I. suit against Big Oil for public nuisance

Super Tort
(pxhere.com CC0)

A "super tort" sounds delicious.  Indeed, the term refers more often to food than to a theory of civil liability.  Maybe that's why the term animated headlines recently when the defense-friendly American Tort Reform Association (ATRA) used it in an amicus brief to the Oklahoma Supreme Court.

In October, ATRA filed its brief on the side of Johnson & Johnson's appeal of a $465m trial verdict of public nuisance liability in the opioid epidemic.  In the brief, ATRA warned that the award represented a "new species of public nuisance [that] will devour all of Oklahoma tort law and, with it, who knows how many businesses."  ATRA explained (my bold):

Since its inception, public nuisance has played a circumscribed role in Oklahoman—indeed, American—jurisprudence. It originated as a property-based tort used to remedy invasions of public lands or shared resources like highways and waterways. The trial court ignored that history, transforming public nuisance into a super tort that exposes Oklahoma businesses to unlimited liability for a broad array of public issues that are far removed from traditional public nuisances.

ATRA further argued its position in terms of the separation of powers, or, classically stated, Aristotelian justice:

The decision will also chill business activity throughout the state for fear that any product linked to a perceived social problem may lead to astronomical and disproportionate liability. It is not the judiciary's role to create a new tort to address social problems. That job belongs to the legislature, which can weigh competing policy factors and study the possible consequences of expanding traditional nuisance law.

Lead paint can
(Thester11 CC BY 3.0)

This isn't the first time ATRA has bemoaned the emergence of a public nuisance "super tort."  Among other tort-reform advocates, defense attorney Phil Goldberg used the term in 2008 and in 2018 to describe lead paint liability.  On the former occasion, echoed in an industry legal brief and in legal scholarship, the Supreme Court of Rhode Island had just rejected industry liability for lead paint on grounds that the defendants had no control over the product at the time it caused harm to children.  An ATRA leader warned of "super tort" in the climate change context as early as 2011 (States News Serv., Apr. 18, 2011 (quoting Tiger Joyce)). (Inapposite here, Patrick O'Callaghan, University College Cork, used the term "super tort" in the Irish Law Times in 2006 to describe potential excess in invasion-of-privacy liability.)

Nevertheless, public nuisance is the leading theory with which the State of Rhode Island now demands that oil companies pay for the past and future consequences of climate change.  Rhode Island alleges theories of product liability and public trust, in addition to public nuisance.  The state's suit is just one of many filed by state and local governments against Big Oil.  The Sabin Center for Climate Change Law, at Columbia Law School, tracks all U.S. litigation on climate change, including the Rhode Island suit. 

Just last week, the First Circuit remanded the Rhode Island suit to state court, rejecting industry claims of federal preemption.  Meanwhile, the case in state court is on hold while the U.S. Supreme Court ponders the outer constitutional limits of personal jurisdiction.  The Court's ruling in an otherwise unrelated case, which I wrote about in April and the Court heard this fall, has ramifications for Rhode Island's thin assertion of jurisdiction over transnational oil defendants.

Over the summer, I spoke about the expansive approach to public nuisance that resulted in the colossal Oklahoma award against Johnson & Johnson and that leads government claims against Big Oil over climate change.  Corporate objections voiced by ATRA, based in Aristotelian justice, are legitimate.  Ironically, as I discussed briefly in my lecture, I see this resort to the courts as an understandable expression of public frustration with corporate capture of our political branches of government.

The Rhode Island complaint images industry-sponsored public service announcements that sewed doubt about climate change and the role of fossil fuel.

Yet despite my skepticism, as a Rhode Islander and a taxpayer, I find the allegations in the state's 2018 complaint awfully persuasive.  The climate science is neatly summarized with color charts, and I'm a sucker for a color chart.  More dispassionately persuasive of moral responsibility on the part of industry, though, are excerpts of trade association advertising that downplayed, if not mocked, climate change science at a time when the industry must have known better.  The ads are eerily reminiscent of Big Tobacco efforts to downplay the risks of smoking for decades through the selectively scientific work of the Tobacco Institute.  That makes me wonder that product liability and consumer protection might be the states' and localities' best approach, not to mention a more doctrinally conservative strategy, and therefore judicially appealing approach, compared with a no-holds-barred theory of public nuisance—if we must rely on the courts alone, after all.

We might ought worry that "super tort" will devour our rational framework of civil liability.  But rather than reject industry responsibility and liability outright, we should add "super tort" to our lately exploded catalog of reasons to examine how and why our political institutions have failed to protect the environment, public health, and human life.

The case in Rhode Island state court is Rhode Island v. Chevron Corp., No. PC-2018-4716 (Bristol County, R.I. Super. Ct. filed July 2, 2018).  The case in the First Circuit was Rhode Island v. Shell Oil Prod. Co., No. 19-1818 (1st Cir. Oct. 29, 2020).

Talk traces 'nuisance' from King Henry I to COVID-19

Yesterday I had the privilege to present in a lecture series (virtually) at Jagiellonian University (UJ) on the tort of nuisance in American common law.  I sketched out the historical background of nuisance relative to the recent lawsuit by the State of Missouri, against the People's Republic of China, alleging public nuisance, among other theories, and seeking to establish responsibility and liability for the coronavirus pandemic.  Here is a video (CC BY-NC-SA 4.0) of the presentation, also available from Facebook, where the lecture streamed live.  A narrative abstract is below the video.

The Tort of 'Nuisance' in American Common Law:

From Hedge Trimming to Coronavirus in 900 Years

Nuisance is one of the oldest civil actions in Anglo-American law, dating to the earliest written common law of the late middle ages.  Nuisance for centuries referred to an offense against property rights, like trespass, interfering with a neighbor’s enjoyment of land.  But a nuisance need not be physical, and colorful cases have addressed nuisance achieved by forces such as sound, light, and smell.  In recent decades, nuisance has undergone a radical transformation and generated a new theory of civil liability that has become untethered from private property.  State and local officials have litigated a broad new theory of “public nuisance” to attack problems on which the federal government has been apathetic, if not willfully resistant to resolution, such as climate change and the opioid epidemic.  Just last month, the State of Missouri sued the People’s Republic of China, asserting that COVID-19 constitutes a public nuisance.  Emerging from understandable frustration, public nuisance nevertheless threatens to destabilize the fragile equilibrium of state and federal power that holds the United States together.

Here are some links to read more, as referenced in the presentation:

• Oral argument in Oakland v. BP (9th Cir. argued Feb. 5, 2020)
• Complaint in Missouri v. PRC (E.D. Mo. filed Apr. 21, 2020) (item 1)
• The English Game (Netflix 2020)

Here is a two-minute video (CC BY-NC-ND 4.0) of only my PowerPoint (no audio), if you want an idea about the course of the talk:

The four-part lecture series, "American Law in Difficult Times," comprises:

Paul Kurth: The American Low-Income Taxpayer: Legal Framework and Roles Law Students Play
May 12, 18:00
Event - Video

May 19, 18:00
Richard Peltz-Steele: “Nuisance” in American Common Law Tort: COVID-19 as a Public Nuisance?
Event - Video

May 26, 18:00
Susanna Fischer: Art Museums in Financial Crisis: Legal and Ethical Issues Related to Deaccessioning
Event - Video

June 2, 18:00
Cecily Baskir: American Criminal Justice Reform in the Time of COVID-19
Event - Video

Here is the lecture series invitation (Polish) from the American Law Students' Society (ALSS) at UJ, via Facebook:

Here is an "about" from ALSS and partners:

❖ ABOUT AMERICAN LAW IN DIFFICULT TIMES:

The American Law Program (Szkoła Prawa Amerykańskiego) run by the Columbus School of Law, The Catholic University of American [CUA], Washington D.C., and the Faculty of Law and Administration, Jagiellonian University, Kraków, as well as the American Law Students’ Society (Koło Naukowe Prawa Amerykańskiego) at the Jagiellonian University, Kraków, sincerely invite you to participate in a series of four one-hour online open lectures and discussion sessions delivered by professors from the American Law Program.

The lectures will be devoted to a variety of legal issues mainly relating to COVID-19 difficulties facing people and institutions, for which legal solutions may be useful.

The lectures will be available through Microsoft Teams as well as a live-stream via Facebook. Participants willing to participate through Microsoft Teams are kindly asked to provide the organizers with their e-mails no later than 6 hours before the commencement of the lecture, by e-mail to kn.prawaamerykanskiego@gmail.com.

Your participation in all four lectures will be certified by the American Law Students’ Society. Only those participants who provide the organisers with their name, surname and e-mail will be granted such certificates.

I am grateful to Jagoda Szpak and Agnieszka Zając of ALSS at UJ; Wojciech Bańczyk, Piotr Szwedo, Julianna Karaszkiewicz-Kobierzyńska, and Gaspar Kot at UJ; and Leah Wortham at CUA.  The lecture series is sponsored by, and I am further grateful to, the Koło Naukowe Prawa Amerykańskiego (ALSS), Szkoła Prawa Amerykańskiego (School of American Law), and the Ośrodek Koordynacyjny Szkół Praw Obcych (Coordination Center for Foreign Law Schools) at the Uniwersytet Jagielloński w Krakowie (UJ in Kraków), and to CUA.

Legal attacks on lockdown mount; R.I. Governor's time will run out, report warns

Persons entering Rhode Island remain subject to 14-day

quarantine in the present phase 1 of reopening. Photo by
Taber Andrew Bain CC BY 2.0.

A former Rhode Island Supreme Court justice and a libertarian think tank asserted this week that R.I. Governor Gina Raimondo is running out of rope in sustaining her emergency lockdown orders.

Earlier in the pandemic, we law types found ourselves with time on our hands to read up on, and sometimes write about, the legal landscape of emergency powers.  Report 98-505 from the Congressional Research Service (here from the Federation of American Scientists and updated March 23, 2020) and CDC public health emergency guidance (2009, updated 2017) suddenly became popular downloads.  The 50-state compilation of quarantine and isolation laws at the National Conference of State Legislatures was well visited.  Various guides to emergency powers have blossomed since.  Heritage published a "constitutional guide" as early as March.  The Brennan Center updated a 2018 report about three weeks ago.  At Lawfare, Benjamin Della Rocca, Samantha Fry, Masha Simonova, and Jacques Singer-Emery overviewed state authorities the week before last.

Wisconsin Supreme Court chamber (Daderot CC0 1.0)

This week brought news of the Wisconsin Supreme Court decision two days ago, striking down the Wisconsin governor's stay-home order.  Clarity around the scope of the ruling and guidance as to how it should be implemented was woefully lacking from the 4-3 fractured court, and public confidence in the decision was undermined by the participation of a lame duck conservative justice in forming the majority.  Against the backdrop of a state supreme court already badly tarnished by partisan politics, the decision has only aggravated America's White House-fueled ideological in-fighting over coronavirus public policy.

Rhode Island Governor Gina Raimondo

Personally, I've been happy with the leadership of Governor Gina Raimondo in responding to the crisis in my home state, Rhode Island.  But to be fair, I work in Massachusetts, and my job has been relatively secure.  There have been peaceful protests against lockdown in Rhode Island, and there is no doubt that the economic closure is devastating the small-business-heavy economy in the nation's smallest state.

On Wednesday, Robert Flanders, Matthew Fabisch, and Richard MacAdams published a legal analysis of Governor Raimondo's emergency orders.  The report came from the free-market think tank, the Rhode Island Center for Freedom and Prosperity.  The authors are all lawyers; Flanders is a former associate justice of the state supreme court and was once a Republican challenger to U.S. Senator Sheldon Whitehouse.  Flanders wrote a companion editorial for The Providence Journal.  (HT@ Gene Valicenti.)

The takeaway from the report in the news is that the Governor has overstepped her emergency authority and is ripe for a lawsuit.  That's an understandable but unfair oversimplification.  The report is a solid legal analysis that examines the scope of state executive authority from a range of angles, including the statutory framework and constitutional limitations such as takings.  The popular takeaway derives from just one thread of the analysis, if an important one: The Governor's emergency powers must be limited, and a key dimension of those limits is time.

Rhode Island State House (cmh pictures CC BY-NC 2.0)

The report does not purport to adjudicate the Governor's emergency response as wrong or right.  Rather, the authors opine, when the Governor's authority runs up against the reality that exigencies are, by definition, not perpetual, the General Assembly has a responsibility to step up and lead.  That might mean simply extending the Governor's authority to make the kind of spot decisions that will be required for subsequent phases of reopening.  Or the legislature may override executive-ordered closures and force the reopening of the economy.

Saliently, the legislature should take charge of public policy.  The most cumbersome branch of government in its populous operation, the legislature is to be excused in the throes of emergency.  But after enough time has passed, the most democratically responsive branch of government should be able to gather its wits, get on its feet, and make law.  Decisions such as whether K12 schools will reopen in the fall, for example, not just financial shortfalls, should be the subject of fact-gathering legislative hearings right now.

The inevitable logic of this ideal is subject to reproach on grounds that many of our state legislatures in the United States, Congress besides, have become dysfunctionally non-responsive to increasingly severe social and economic problems. This paralysis has many and complicated causes, including corporate capture and unbridled gerrymandering.

In the functionalist reality of our government of separated powers, if one branch abdicates its mantle, the others will fill the vacuum.  Thus, in the absence of legislative leadership, a governor may be expected to carry on with policy-making, and a state supreme court, especially a politicized one, may be expected to push back.  It's in this sense that the pandemic crisis is exposing yet another grave institutional weakness in the infrastructure of American government.

If a legislature remains paralyzed long enough, the people will become antsy.  Among the ultimate remedies for legislators who would shirk their duties, some are more palatable than others (video: Liberate Minnesota protest, April 17, by Unicorn Riot CC BY-NC 3.0).  Once upon a time in Rhode Island, residents took up arms to compel the legislature to expand enfranchisement through a constitutional convention.

Alas, one problem at a time.