Appeal in slip'n'fall points to deeper mysteries of historical 'open and obvious' danger doctrine

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Rejecting the phrase "open and obvious" as magical incantation, the Massachusetts Appeals Court Friday affirmed a slip-and-fall jury award for an apartment dweller against her landlord.

The plaintiff injured her ankle when she left her apartment because, she alleged and the jury agreed, the landlord had removed a platform that usually stood outside the door, thus increasing the height of the step.

The defendant argued that the absence of the platform was an "open and obvious" condition, thus negating the duty a landlord usually owes to a renter. Maybe so, the court opined, but the proposition only raises a question of fact appropriate for resolution by the jury. And the jury here decided that the defendant should have foreseen the plaintiff's unawareness of the platform's absence.

"Open and obvious" is a term oft used in the law in different contexts, with seemingly magical effect, so it's important to specify first that the term arises here in the context of landowner negligence. Its use even in this vein is historically and persistently ambiguous.

The ambiguity arises in part from the fact that "landowner negligence" is often described in terms of the duty that a landowner owes to one who comes onto the land. But functionally, the rules of landowner negligence operate as rules of breach of the standard of conduct, or defendant's "negligence." The distinction is theoretical and often functionally insignificant. But it can be procedurally important, because the existence of a duty is—not exclusively, but let's gloss that over—a question of law for the court to decide, while breach presents a question of fact for the jury to decide.

The rules that American common law has evolved for landowner negligence sensibly require some degree of plaintiff's unawareness of the danger. Depending on the plaintiff-defendant relationship, the plaintiff's unawareness might be tested according to the defendant's reasonable anticipation, the plaintiff's reasonable anticipation, or the plaintiff's subjective knowledge. Whatever the test, bearing the burden of proof, the plaintiff alleges that unawareness. The defendant may declare in response that the danger was "open and obvious," thus making clear that the plaintiff's allegation cannot be believed.

What has not been clear in common law, historically, is the procedural impact of the declaration. Was the "open and obvious" declaration an affirmative defense, for which the burden of proof shifted to the defendant, or merely a refutation of the plaintiff's proof of unawareness? Was the "open and obvious" declaration equivalent to a "no duty" argument that the court must resolve expeditiously as a matter of law, or is the declaration a factual description that must be placed in the hands of the jury? Courts answered these questions variably, creating confusion.

In helping law students to understand the contemporary import of "open and obvious" in the multistate norms of American common law landowner negligence, my preference is to impress upon them that the term usually is not, or ought not be, a magical incantation. It's alliteration is alluring but deceptive. In contemporary doctrine, the declaration of "open and obvious" should be understood merely as a defense allegation of fact, and a refutation of the plaintiff's proof. The burden of proof does not shift, though it must be acknowledged that a credible declaration might obviate the need for a jury trial.

If the danger indeed is so open and obvious that ordinary minds could not differ on the question of plaintiff's unawareness, then the usual operation of civil procedure allows the court to decide the question of fact as a matter of law, in which case the court may do so pretrial and under the banner of duty or breach. If the answer is not so obvious as the defendant contends, then a motion to dismiss as a matter of law is properly denied, and the question is advanced to the jury as one of fact.

That's the approach that seems to have evolved in Massachusetts, though the appellate court has not always been clear about the mechanisms under the hood. In the instant case, the court wrote that the "open and obvious" declaration presented a question of fact that was properly referred to the jury for resolution. The court also described the "open and obvious" allegation as seeking to negate the defendant's duty to the plaintiff. That's not wrong, but it might be confusing, because the jury usually is charged with examining elements of breach, not duty. 

In an earlier case, Ward v. Schnurr (Mass. App. Ct. 2023) (The Savory Tort (Sept. 28, 2023)), the court affirmed dismissal of a negligence claim in favor of a landowner in part upon the defendant's allegation of "open and obvious," also referencing the duty owed, but without a jury ever having been impaneled. In that case, the plaintiff had been hired by the defendant specially to remediate the dangerous condition, so the plaintiff's assertion that it was unaware of the danger ran into trouble on the sniff test. The "open and obvious" allegation was therefore properly decided as a matter of law, even though it was a question of fact. The court did not, however, go out of its way to make that clear. 

In neither case did the court indicate that any burden shifting had occurred. I don't think it did. But there again, it would have been helpful if the court had said that.

Doctrinal confusion over "open and obvious" thus persists, in Massachusetts and elsewhere. It only makes matters worse that what I describe here as my understanding of Massachusetts law, as well as what I sell to students as multistate norms, is not the law everywhere in all circumstances. 

There is a deeper theoretical truth at work here, almost a philosophical question, one that I encourage first-year students in Torts to embrace and play with before the remainder of the "hands-on," widget-making law school curriculum beats out of them any appreciation for law as a worthwhile intellectual pursuit. The truth is that duty and breach are not really distinct things, rather, are more like two sides of the same coin. Thus, the tort scholar William Prosser once said, "Circumlocution is inevitable."

For now, to quote the scholar of popular culture Trevor Noah, "ain't nobody got time for that."

What I'd like to know more about, meanwhile, are the family dynamics behind the instant case. The defendant landowner was, the court revealed, the plaintiff renter's mom. I hope the case was motivated by access to insurance and not bad blood, though neither scenario speaks well of American civil dispute resolution.

The case is Varley v. Walther, No. 24-P-511 (Mass. App. Ct. May 16, 2025). Justice Gregory I. Massing wrote the opinion of the unanimous panel that also comprised Justices Hershfang and Tan.

LoMonte tells timely Tenn. tale of vanishing public records, legislative response in retention requirement

My friend and colleague Frank LoMonte, CNN senior legal counsel, has published a superb and timely new article, "The Race to Erase: Destruction of Government Documents Undermines Freedom-of-Information Laws," in the Seattle University Law Review.

Here is the abstract.

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law did nothing to require agencies to retain public records after receiving a request to produce them, exposing a gaping hole in right-to- know laws that goes well beyond one state.

This Article looks at the state of records-retention law in the United States and how the lack of forceful and well-enforced retention requirements can frustrate the good-government objectives of FOI laws. Part I lays out the animating principles behind right-to-know laws, how they operate, and how requesters have productively used public records to uncover government secrets. Part II examines the state of records-retention laws and regulations, and how their lack of clarity—particularly when it comes to emails, texts and other twenty-first-century electronic communication methods—has led to frustrating results for requesters. Part III looks at the meager remedies under federal and state law to enforce records retention requirements; paradoxically, these remedies provide hidebound government officials with an incentive to destroy, rather than just withhold, embarrassing records. Part IV focuses on the special case of police personnel files and body-cam videos, which hold promise as tools of accountability if the public can actually obtain them. This Part uses a recent California dispute—in which a municipal police department destroyed video footage of officers removing homeless people’s campsites while a requester was still fighting to obtain the footage—to exemplify the larger problem of inadequately rigorous retention laws. Finally, the Conclusion discusses what a legislative remedy to patch this hole in the public’s information safety net might look like, returning to the example of the Chattanooga Times Free Press’ unfulfilled request and the legislative response it inspired.

LoMonte's apt paean to record retention is nicely complemented by a new release from UNC's David Ardia pressing for a constitutional dimension to the freedom of information (HT @ Professor Robert Steinbuch).

I am grateful for references in LoMonte's article to something I wrote many years ago on record retention. I oft lament that my early-career work from flyover country on record retention and court record access are rarely if ever cited, even while they represent first publication of many points later repeated in the literature. Attorney and Georgia law professor LoMonte seems set on taking the wind from my whiny sails.

At the same time, I observe and lament that our strange times—with such as the firing of the National Archivist, the disappearance of federal records, and a privacy-obsessed generation baffled by the custom of open courts—have sent researchers scurrying for past findings in these areas. Who knew.

Iglesia celebra ordenación en comunidad quechua

Pastor Cruz a la izquierda, con Pastor Zhulleima y su esposa y hijos.
Capture from video at BBC RI media

En mi iglesia de Rhode Island el domingo, fuimos testigos de la ordenación de Gabriel Zhulleima.

Barrington Baptist Church (BBC) dio la bienvenida a la gente de varias iglesias, de Massachusetts y el estado Nueva York, tan lejos como Albany. Las iglesias que se unieron con nosotros incluyen en particular la gente Quechua que viven en esta región. Un grupo de mujeres quechuas honró el evento con una actuación musical en la tradición indígena.

Nuestro propio pastor y misionero Aurelino Cruz, de origen brasileño, sirvió como maestro de ceremonias y traductor del español al inglés. El pastor y misionero Antonio DeLaZerda dío el mensaje, o sermón, a la iglesia en español. Cruz y DeLaZerda ambos sirven con la organización Missions Door.

En el mensaje, Pastor DeLaZerda dijo que lo que describrió como la forma en que América está "cambiando" el mundo crea un problema para cristianos. No dio más detalles, y no quiero atribuirle mi propia interpretación. Pero yo también he tenido inquietudes sobre la incompatibilidad entre la política exterior estadounidense y las enseñanzas de Jesús.

Esto no significa que la religión deba dictar políticas. Pero la ayuda exterior es el motor del "evangelismo" estadounidense sobre la democracia y el estado de derecho. Terminación arbitraria de la ayuda está diezmando nuestros objetivos políticos, a la vez que cobra un precio horrendo en sufrimiento humano. A veces, lo que enseña la Biblia es simplemente bueno juicio.

Dios bendiga el ministerio de Pastor Zhulleima. Una grabación del servicio y la ordenación en la BBC estará disponible en línea esta semana. (UPDATE, May 20: Video publicado.)

Commencement speakers envision new beginnings

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

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

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

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

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

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

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

Awards recognize law students Girouard, Riley

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So it's likely to go for Alex Shieh.

Are we at the end of 'Bretton Woods'?: White House reconsiders post-WWII world financial system

Omni Mount Washington, Bretton Woods
RJ Peltz-Steele CC BY-NC-SA 4.0

"Bretton Woods," I said.

"Are you sure it's still on?" he asked.

That was part of my conversation with a motel manager in Carroll, N.H., a couple of weeks ago when I was at Bretton Woods for the annual meeting of the New England Political Science Association (NEPSA).

We were talking about where I was headed in the north of New Hampshire, and I answered the man that I was bound for an event at Bretton Woods. I realized later that he thought I meant the ski resort. I could see the slopes from the Omni Mount Washington Resort opposite, where NEPSA was meeting, and the snow cover was waning, yielding to rain.

I did not think he meant, but thought it would be funny if he had, that "Bretton Woods" might be over: meaning not the ski season, but the global financial system built around the International Monetary Fund (IMF) and World Bank.

That system, and the twin institutions (one a predecessor of the World Bank), were conceived at the Mount Washington hotel at the Bretton Woods Conference in July 1944, before the end of World War II. It was widely understood by then that a lack of multilateral economic cooperation was a key failing of the interwar period that led to a second global catastrophe. 

Nevertheless, world leaders, including the Americans and British, were not all yet convinced in 1944 that economic cooperation, especially with a reconstituted Germany, much less Japan, would be in their national interests. Bretton Woods welcomed a who's who of the times at the intersection of economics and politics, such as the British economist John Maynard Keynes. So in the end, the conference proved persuasive to skeptics.

"The Room Where It Happened":
the Gold Room, where the Bretton Woods Agreement was signed
RJ Peltz-Steele CC BY-NC-SA 4.0

 

On a tour of the stunning, now-Omni hotel while I was there, I learned that Bretton Woods was chosen as a location for the high-level meeting in bello because its location between two notches in the New Hampshire mountains afforded it remarkable physical security. I found that that security is still a thing even in the information age, as my cell phone found signal only intermittently. I had to use the public library in Carroll to meet with my International Law class on Zoom.

The Bretton Woods Conference resulted in a system of consistent currency convertibility and installed the IMF as a kind of backstop, or currency reservoir, to help countries avert spiraling domestic destabilizations that might otherwise threaten global security—such as the collapse of the German economy that fueled the rise of Nazism. The Bretton Woods conversion system lasted as long as the gold standard, until the 1970s, and what followed, what still functions today, is a direct descendant.

And now all that might change. As a headline asked in The New Republic (TNR) on April 21, three days before I arrived at Bretton Woods, "Will Trump Finally Kill the Bretton Woods System?" 

As TNR explained, Project 2025 is not on board with the global financial system, despite its facilitation of American dominance of the world economy since World War II. The rightest wing rather sees the Bretton Woods system as part of the globalist agenda to subordinate U.S. interests to a new world order. In this telling of it, the IMF and the World Bank are just two more UN-adjacent intergovernmental organizations that suck resources from the American economy to subsidize the world's welfare-indulgent masses.

It is true that the IMF and World Bank invest in poorer parts of the world. But those poorer relations sometimes see these investments as more imperialism than charity. I studied World Bank projects as long as 30 years ago and witnessed the thorns of economic hegemony that came with the roses of infrastructure development in Latin America. There's been a lot of reform since, but nationalist critics see thoughtful multistakeholderism as an ebbing of commitment to quid-pro-quo foreign aid, rather than an all-boats-float scenario.

The IMF has long been at the middle of similarly conflicting perspectives. High-GDP contributors complain about the organization's generous loans and patient debt restructuring. Meanwhile, countries on the receiving end see IMF loans as a Hobson's choice, complemented by promises of private investment that never materializes and delivery into an addiction-like cycle of economic dependence that knows no off ramp.

Bretton Woods ski slopes
RJ Peltz-Steele CC BY-NC-SA 4.0

Climate change has exacerbated these tensions. Small-island and economically weaker nations have experienced an uptick of costly, destabilizing events, increasing demand for aid from developed economies. Meanwhile, aid recipients point out, not without reason, that the loan sharks got where they are through the very resource exploitation that they seek to restrain in the developing world. And with global temperature set to rise for the near future no matter what we do, no amount of economic and governance reform can turn back the clock on the damage sustained.

So need rising and prospects dimming for a return on investment, the Trump Administration contemplates bailing on Bretton Woods. You see it in the President's infamous tariff chart, which, analysts worked out, was not calculated to impose reciprocal tariffs, but to use tariffs as a weapon against trade deficits.

I as much as the next guy want the overworked American laborer to get a fair shake in the world. For a post-industrial economy, we work too many hours, enjoy too few benefits, and suffer an outrageously high cost of living, all summing wretched prospects for socioeconomic mobility. Trump is right that the IMF could care more about trade imbalances. 

But foreign social democracies are a scapegoat. Most of Americans' economic misery is self-imposed at the beckoning of a fat corporatocracy feasting on the deepening wealth divide.

An America-first policy that requires exiting the Bretton Woods institutions gives off an eerily 1930s vibe. And that didn't work out so well the last time.

Poli sci research dazzles with deep dive on judicial bias, asylum woes, AI to police corruption

The New England Political Science Association (NEPSA) met at Bretton Woods, N.H., late last month.

I always look forward to the NEPSA meeting, as political scientists are just about the warmest crowd of academics I know. No other kind of social scientist so eagerly shares knowledge as the political scientist, who similarly embraces interdisciplinary feedback, even from a non-PhD such as me.

True, political scientists can and do argue about anything. They put law professors to shame in that regard. You make a mistake of parliamentary procedure at the political science business meeting at your peril. 

But only the political scientist compromises her or his confident disputation with a wink of the eye that acknowledges the house of cards we've built around ourselves. You won't find that kind of concession in the grim gaze of an economist.

I saw a great many fabulous papers as always at NEPSA, and I had the privilege of chairing and discussing the papers on a compelling panel on law and public policy on April 26. The panel comprised Dr. Ihsan Alkhatib, Murray State University; the Hon. Sarada Prasad Nayak, UMass Amherst; and attorney Nicole Norval, Eastern Connecticut State University.

All of the panelists, like me, are recovering lawyers. Dr. Alkhatib practiced family law and immigration law for a decade in the Detroit area, representing mostly Arab- and Muslim-American clients. Nayak was a judge in various capacities, including family court, in Odisha State, south of Kolkata, in India for 30 years, before moving to the United States for a new pursuit in academics. Norval was a real estate attorney in South Africa before she left to trot the globe as a tech exec, reg counsel, and business law professor.

In the projects presented, Dr. Alkhatib is studying U.S. immigration law, and in particular the awful consequences of failing to recognize violence against women expressly as a basis for asylum. Judge Nayak, with co-author Dr. Paul Collins Jr. at UMass Amherst, is poring over an extraordinary database of cases in India to understand religious and gender biases in judicial decision-making, with transnational implications. And attorney Norval, with co-author Sameer Somal, CEO of Blue Ocean Global Technology, is looking at the potential for AI to detect and police corruption in business and finance, testing real tech on models such as FIFA and FTX, with promising results.

These authors' paper abstracts are copied below. The full 2025 NEPSA conference program with abstracts is available for a limited time here.

The NEPSA conference was stewarded as usual by the incomparable Dr. Steven Lichtman, Shippensburg University, a friend who never fails to inspire me with his teaching and in his clear-eyed commitment to supporting colleagues and developing academic talent.

Here on The Savory Tort this coming Monday, May 12, 2025, I will write about Bretton Woods as the location of the founding of the International Monetary Fund, and how that history has come up lately in our politically tumultuous times. Stay tuned.

---

Ihsan Alkhatib, Murray State University
Gender in Immigration Court: Orientalism on Trial
There are five grounds for asylum. Gender is not one of them. Gender however comes up under the grounds of Particular Social Group. Two approaches to gender claims from the Arab world are presented and compared. I argue that one approach is grounded in Orientalism and perpetuates Islamophobia. The second approach is is grounded in a global view of gender and is more accurate representation of gender reality. Immigration lawyers are bound by Rules of Ethics. Advocacy grounded in the second approach is more consistent with the ethical obligations of lawyers.

Sarada Prasad Nayak, University of Massachusetts - Amherst
Case Backlogs and Bias in Timely Justice Delivery in the Indian Judiciary
Understanding bias in the judicial decision-making process is crucial for ensuring fairness and justice in the legal system. To date, scholarship on judicial bias focuses overwhelmingly on the American legal system, focusing on case outcomes or judges’ voting behavior. In this paper, we shift the focus outside of the U.S. and beyond case outcomes. To do this, we examine judicial delays in India, where prolonged legal processes often serve as a form of punishment. We theorize that bias may infiltrate the amount of time it takes to dispose of cases based on the gender and religion of the judge who is assigned the case, as well as those of the defendants. To subject these expectations to empirical scrutiny, we analyze hundreds of thousands of criminal cases decided in India’s lower courts. Our results indicate that Muslim defendants experience shorter delays when their cases are heard by Muslim judges, providing evidence of in-group bias. However, there do not appear to be differences in the timing of case outcomes based on the defendant or judge gender. This study contributes to the literature by highlighting how judicial delays in less developed countries may reflect subtle forms of bias, mainly along religious lines. 

Nicole Norval, Eastern Connecticut State University
Can AI Reduce Business Corruption - and Prevent Another FIFA … Another FTX?
Regulators consider artificial intelligence (‘AI’) an inevitable tool for compliance with regulations such as anti-corruption laws. How should we regulate AI to improve regulatory compliance without sacrificing the right to privacy? Can we regulate AI to prevent corrupt business practices and improve human rights outcomes? Unifying existing and forthcoming AI regulation in multiple jurisdictions (primarily the United States and the European Union) in a matrix of business corruption reforms, results in a useful legal model. This paper concludes by applying the model to the decades-long Fédération Internationale de Football Association (FIFA) corruption scandal and the recent FTX cryptocurrency exchange bankruptcy to understand the benefits and limitations of this legal framework. We examine why AI is an inevitable tool for regulatory compliance, comparing, AI regulation, guidelines, and recommended practices in the United States, the European Union, and other jurisdictions, in order to extract common objectives of AI regulation such as protecting privacy rights and improving human rights outcomes. We discuss business corruption reforms in general, focusing on the financial services sector as a business sector crucial for such reform initiatives. Integrating these financial services sector reforms with common AI regulation objectives, we construct a legal model for application to business corruption events. We apply this legal model to two business corruption events with significant negative financial impact in order to establish whether the use of AI to identify business corruption signifiers would have reduced these negative financial impacts, protected privacy rights, and improved human rights outcomes. We conclude by identifying limitations and benefits of our legal model for future improvement, examining the moral imperative and impact of this research, and identifying further areas of research.

Law students Costa, Osuagwu talk first 100 days

Costa & Osuagwu (WGBH)

Thrilled to see two of my star 1Ls/rising 2Ls, Cameron Costa and BJ Osuagwu, just finishing Torts II, representing and holding their own in this political dialog on WGBH (below from YouTube).

From GBH News: "The Trump administration hit 100 days of its second term marked by economic volatility, aggressive immigration enforcement and tariff talk.  Is the country headed in the right direction? We asked two people who support Trump and two people who don't on Politics IRL."

Costa is an educator and a student of legislative advocacy. Osuagwu is executive director of Healthy Waltham.

Kuwait ponders a future after fossil fuels

Kuwait City skyline

Kuwait is an oil country, and Kuwait City glows with prosperity. Kuwaitis know, though, that they can't ride the oil train forever.

Earlier this month, I took part in a program of the Kuwait Bar Association (KBA) and International Association of Lawyers (UIA) in Kuwait on the mediation of energy disputes. (All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

Kuwait Bar Association (Society of Lawyers)

The program addressed both state and corporate actors, which often in the Middle East are functionally the same, as political royals are only formally differentiated from their investments. Iraq invaded Kuwait in 1990 largely in response to long-running disputes over access to oil reserves under the countries' desert border. So it's understandable that Kuwait, powered by a 70-year-old, $1tn sovereign wealth fund born almost entirely of oil revenue, is an eager evangelist for non-violent dispute resolution in extractive industries.

Kuwait Towers

I spent some additional time in Kuwait, besides the KBA-UIA program, to see the sights of Kuwait City. The first place I went was the iconic Kuwait Towers. Dating to 1979, the towers were designed to be monumental more than functional, architecturally distinct among Kuwait's historical water towers, a remaining few clusters of which dot the urban landscape. Repaired since they were trashed in the Iraq invasion, and refurbished in the 2010s, the Kuwait Towers are a patriotic reminder of a Kuwait that long imported fresh water for its survival, before oil wealth paid for expensive but effective desalinization. 

Dhow model at Marine Museum

On display at the Al Hashemi Marine Museum and the Maritime Museum are Kuwaiti dhows dating to the 19th century. Some were used for pearling, the dangerous prospect but potential big score of a once seafaring economy. Many of the dhows are specially fitted with large water tanks running along the keel.

Thus imported, water historically was famously expensive in Kuwait. There's still a popular maxim that water, the truly scarce resource of the desert, is more expensive than oil. Water still is expensive, or should be, because desalinization is expensive and largely fossil fueled. 

Other legacy water towers

Government subsidies, however, obscure the cost of water. A combined utility bill in Kuwait, including water, electricity, sewer, garbage, etc., might run US$40 or $50 a month, single family—a lot for some locals, especially ex-pat laborers. But even correcting to U.S. cost of living with a 250% multiplier, utilities including water are far cheaper than in the States. Environmentalists fret over the conceit that water is inexpensive. I thought that my hotels would caution about water consumption, as is common in desert countries, not to mention American desert states, but they did not.

In keeping with the maxim, petrol is cheap. I was worried when Europcar warned me that gas stations accept only cash—until I worked out the prices. I filled up my SUV rental's 13-gallon (about 50L) tank for less than US$10.

Evening recreation at Dasman Beach

There's much to see in Kuwait City, in terms of museums and historical sites. What struck me, though, is the prevalence of western influence and a near indifference to foreign tourism. Attractions are aimed at locals. Kuwait excels at affording its people diversions of all kinds, including the educational and recreational: museums, beaches, playing fields. But the focus is decidedly domestic, bringing the world to Kuwaitis, not the other way around.

Texas Roadhouse Beneid Al Gar, one of three Kuwait City locations

Limited opening hours and a ramshackle bus system make many attractions difficult to access for visitors. Ride-share app Careem works well, though drivers speak little English. Some places' websites are in Arabic only. Besides foods, souvenirs are sorely limited: the norm is an assortment of refrigerator magnets and ball caps with cheap, afterthought patches. Walking south from Kuwait Towers on the city's corniche, the extent of Kuwait's Americanization in particular is on full display. Behind the beaches, the chain restaurants line up: TGI Friday's, the Cheesecake Factory, Texas Roadhouse.

One tentacle of sprawling Souq Al-Mubarakiya

Besides the beach, a favorite evening destination for locals is one of the city's many shopping malls, from the central 1,250-square-foot Assima Mall, with its gourmet Monoprix grocery, to the sprawling 334-acre (1.35m-square-meter) Avenues, with more than 1,100 retailers. Notwithstanding the scale and upscale nature of these operations, they are loaded with the sort of western retailers found on main street anywhere. There's plenty to buy, eat, and drink—besides alcohol; Kuwait is a dry country—but very little that is specially Arabian. A more touristically gratifying destination is the city's Mubarakiya Souq, though its modernized storefronts also cater mostly to local needs. The people-watching is better than the shopping.

Camels, highwayside

To see more than just the city, and also to get a closer look at both rural life and Kuwaiti infrastructure, I drove out both to the Iraq border in the north and to the Saudi border in the south. The highway network is impressive, if a work in progress, strong on asphalt, weak on road marking. Polished bridges here and there are designed for the exclusive use of crossing camels.

In both the north and the south, the desert is dotted with green patches of farms, fed, remarkably, by well water. Visiting these farms for markets of fresh produce, petting zoos, and other children's amusements is a seasonal family pastime.

Starbucks Wafra

Near the Saudi border, the town of Wafra is the center of an equine economy. Riding centers, breeding operations, and a market for export speak to the enduring importance of horses in Arabia. On Wafra's dusty outskirts, I was surprised to find a cluster of modern buildings, including a multistory veterinary center and, no kidding, the farthest flung Starbucks I've ever seen. A sign at Starbucks cautioned that horses are not permitted in the drive-thru.

Electric towers in the desert

Strung across the desert landscape is a mind-boggling network of electric towers, stretching lines into the distance from any vantage point. Kuwait imports electricity from Gulf partners such as Qatar and Oman, and even then struggles to meet demand in sweltering summers (e.g., N.Y. Times). Meeting electrical needs is simultaneously an incentive and an obstacle to Kuwait energy transition away from fossil-fuel dependence.

Change through energy transition and emission reduction was a recurring theme at the mediation program, besides the benefits and skills of mediation itself. I did not expect to hear, and am not accustomed to hearing, harsh criticism of fossil-fuel dependence in the Middle East. Yet in a session titled "The Climate Crisis and the Transition Imperative," speakers were adamant opponents of the status quo.

Panelists: Yousef Al-Abdullah; Elena Athwal, Qatar,
founder and CEO of consulting firm Icelis Global; and Sara Akbar

Moderator Sara Akbar, a chemical petroleum engineer, current CEO of Oilserv Kuwait, and a renowned figure in the modern history of Kuwaiti oil development, condemned the "New World Disorder" of Trumpian climate-change denial and on-again-off-again Paris participation. She argued passionately that the global costs of unchecked climate change, including devastated coastal cities and lost lives, will vastly outpace the costs of energy transition to renewables. According to Akbar, even the Kuwait oil industry understands that the era of fossil-fuel dominance in the Kuwait economy must end.

Akbar cited an interesting and alarming local statistic: Kuwait has long monitored the maximum temperature of the Persian Gulf at the sea floor, which reliably marked 95 or 96 degrees Fahrenheit. Now, she said, it routinely exceeds 100 degrees, evidencing the evaporation that is fueling catastrophic rainstorms from Dubai to Bangladesh.

Yousef Al-Abdullah, research scientist at the Kuwait Institute for Scientific Research, discussed the energy transition and emission reduction commitments of Gulf states. In contrast with the U.S. re-withdrawal from the Paris Agreement and Trump Administration promise to double-down on drilling, Gulf states have articulated ambitious aims.

A leader in goal-setting is the United Arab Emirates (UAE). The UAE aims for 47% reduction in greenhouse gas (GHG) emissions by 2030. In energy transition, the UAE aims for 15% renewables in its energy mix; has adopted a net-zero target, green hydrogen strategy, independent energy regulator, and national climate law; plans a massive expansion of solar capacity; and is investing more than $14 billion in transition this fiscal year.

Persian Gulf coastline from Kuwait Towers

Kuwait looks weak on the same benchmarks. But that's not the whole story, Al-Abdullah said. Kuwait believes that some neighbors have announced goals they can't realistically meet, such as the Saudi aim to cut 278m tons of annual GHG emissions by 2030, and Kuwait wants to be realistic. Notwithstanding articulated commitments on the international stage, Kuwait has announced targets domestically, Al-Abdullah said, such as net-zero in the oil sector by 2050, and in other sectors by 2060.

Oil production is down over 10 years, Al-Abdullah said, and that's problematic for environmental strategy. The economy remains dependent on fossil fuels, to the tune of 90% of revenues, and a strong economy is needed to transition away from fossil fuels. Production is down for many reasons, including OPEC restrictions; increased competition from other sources, such as Uruguay, Paraguay, Guyana, Mauritania, and Uganda; and rising production costs.

Here my observation on Kuwait's underdeveloped tourism economy is salient, at least in small part. Because Al-Abdullah said that key to Kuwait's future is diversification of the economy, reducing the dominant position of fossil fuels, especially relative to a newly developed service sector. 

In domestic policy, a national plan called "Kuwait Vision 2035" contemplates an economy centered on logistics, leveraging Kuwait's world-crossroads location by, for example, expanding airport and seaport capacity. Vision 2035 imagines a Kuwait that is more livable for residents and hospitable to visitors, expanding highways and building a rail and metro system.

Besides infrastructure, transformation of Kuwait's workforce is required, too. Kuwait suffers an affliction known to other oil-rich states, which is a comfortable, but under-skilled national workforce. Kuwait's education system must rise to meet the challenge of preparing Kuwaitis to participate in the new economy, while the social and economic fabric must expand the job market and incentivize people to enter it.

Like other Middle Eastern states, Kuwait has a worrisome dependence on foreign workers. Ex-pats, whom I mentioned above, constitute some 70% of the resident population and have no pathway to citizenship. Blue-collar workers hale especially from the Asian subcontinent and Pacific rim. Qatar's plight in this regard was highlighted and made controversial by the location of the 2022 FIFA World Cup there; whether reforms were meaningful or sufficient is debatable.

The existing service economy, including legal, financial, and engineering services, depends heavily on ex-pat white-collar workers, too, who make up a fair chunk of that 70%. At the KBA-UIA program, I met lawyers from other Arabic-speaking countries who have worked for years, even decades, in Kuwait. They are generously permitted to practice, more than an out-of-jurisdiction lawyer may in the States, on matters related to their home jurisdictions. But there's no pathway to bar admission, such as might expose the domestic market to competition.

Legal and regulatory reforms will have to complement the development of a service sector and trade center, Al-Abdullah said. I don't think Kuwaitis alone will be able to make that change. Rather, Kuwait will have to open itself up with a more robust immigration framework, affording ex-pats the likes of property and other rights, if not naturalization, to foster a justified sense of ownership in the new economy.

KOC Oil and Gas Exhibition Hall

Apropos of energy transition, one of the most interesting tourist attractions in Kuwait is the Kuwait Oil Company (KOC) Oil and Gas Exhibition. The exhibition—reservations required for guided tours only—offers an artfully constructed tour of the history of Kuwait, from its desert and seafaring cultural history, to British protectorate and the discovery of oil, rise to global energy power, and Iraq invasion, destruction, and recovery.

Exhibit dramatizing Kuwait oil extraction: every second, every day

The exhibition is decidedly a paean to oil. But it is not wholly environmentally tone-deaf. One dramatic exhibit shows, with a massive gush of black liquid, the astonishing amount of oil that Kuwait pumps from the earth every second of every day, averaged out. The exhibits don't say it plainly, but there is an undeniable implication that this business model is not indefinitely sustainable.

The next chapter of Kuwait energy policy is ready to be written.

Tchotchkes for sale at the KOC Oil and Gas Exhibition gift shop

Kuwait sign on the corniche