'Ley contra la pandemia': CFP se extiende a las contribuciones en español

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Los académicos, estudiantes, profesionales, todas las disciplinas, todas las naciones, están invitados a contribuir con artículos, comentarios y otros trabajos al nuevo sitio web y blog, Law Against Pandemic. Se aliente especialmente el trabajo de los estudiantes.  (CFP en inglés via The Savory Tort.)

Law Against Pandemic es un espacio para el debate sobre los aspectos legales de las pandemias como una herramienta de desarrollo y popularización de los logros de las ciencias sociales. El objetivo principal del proyecto es a crear una plataforma de publicación de artículos de alta calidad sobre aspectos legales de pandemias, para contribuir al discurso y al análisis de posibles soluciones.

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Alternative dispute resolutions during global pandemic and beyond
by August Adamowicz

Is there a tool that could be used by the lawyers to mitigate the negative effects arising from the situation we are in? I believe that in some instances proper use of Alternative Dispute Resolution methods could help resolve disputes remotely, but also after the epidemic ends it could reduce the number of urgent court cases and at least in some part help to return the judicial system to normal functioning.  Read more.

Pandemic and international trade law. Is there a silver lining?
by Cyprian Liske

Current events show more clearly than ever how strong economic interconnections between countries are in the modern, globalised world. A severe crisis in just one country can break supply chains around the whole globe, not even to mention financial consequences which, as we know at least since 2008, can spread just like a deadly virus.... How do the countries choose to deal with it internationally? Do we restrict trade in the face of such dangers? Or are we trying to liberalise it in order to keep the flow of goods? What about the export of deficit goods which may be used by countries to fight pandemic domestically?  Read more.

Labour market after COVID-19
by Łukasz Łaguna

Currently, the whole world is fighting the COVID-19 epidemic. All countries are racing to find anti-crisis solutions to ensure the least possible losses for every labour market. At the same time, it should be borne in mind that no country in the world will be able to maintain such intensive financial assistance in the long run. High social benefits are only an ad hoc aid for the temporary maintenance of financial continuity of entrepreneurs.  Read more.

First Circuit dismisses Mount Ida student class action, incidentally limits emerging data protection theory

Holbrook Hall, Mount Ida College, Newton, Mass. John Phelan CC BY 3.0

An angle in a recent First Circuit decision deserves a mention in U.S. data protection circles.  I hadn't been aware of this angle of the case, so hat tip to attorney Melanie A. Conroy at Pierce Atwood in Boston for analyzing the case carefully in the The National Law Review.

The First Circuit affirmed dismissal in the ugly and unfortunate matter of Mount Ida College students' class action against the school after its abrupt closure and sale to the University of Massachusetts system.  Conroy's rundown on the case is thorough.  I want only to highlight one important point: the court refused to recognize, in Massachusetts law, a fiduciary duty owed by university to student.

The decision comports with multistate norms, but is nonetheless important in limiting an emerging doctrine of data protection in U.S. common law tort.  State courts that have recognized something like a data protection right in civil cases have used fiduciary duty to bootstrap their way there.

American common law invasion of privacy is too stringent to get the job done, that is, to articulate a data protection right, for various reasons.  One reason is its incorporation of what Professor Daniel Solove termed "the secrecy paradigm": information must be kept secret to remain secret.  Thus, I cannot complain when my bank tells someone about my financial transactions, because I already let my bank know about them.  My resort must be to banking privacy law, by statute.  And there arises the second problem for privacy plaintiffs: statutes are too stringent to get the job done.  I might be unhappy if my employer divulges information about my psychiatric condition to my insurer, but neither one of them is a healthcare provider covered by the federal patient privacy law ("HIPAA"), which does not (directly) provide for a cause of action anyway.

In 2018, the Connecticut Supreme Court bridged the common law gap from statutory insufficiency to actionable privacy claim by relying on the physician-patient duty of confidentiality.  In short, the court held, HIPAA + duty of confidentiality = protectible common law interest.  The court thereby allowed a woman to sue her ObGyn provider upon an allegation of breached confidentiality.  That duty of confidentiality is a form of fiduciary duty.  So a theory emerged of how U.S. common law might stumble its way to recognition of what the rest of the world, especially Europe, calls "data protection."

There are a lot of ways for us to start catching up with the rest of the world in recognizing people's right to personal data integrity; this is just one.  And it remains.  But it is limited by the scope of duties that might stand in for that second piece of the equation.  The Mount Ida case shows correctly that it will be harder for a plaintiff to get there against a business defendant that is not a professional, and the data held are financial information tangential to the nature of the relationship, here, educational.

The First Circuit aptly instructed Mount Ida students that if they wanted better protection for their personal information in state law, their remedy was with the state legislature.  The same can be said for Americans, data protection, and our torpid Congress.

The case is Squeri v. Mount Ida College, No. 19-1624 (1st Cir. Mar. 25, 2020).  U.S. Circuit Judge Lynch wrote for the panel, which also included Stahl and Kayatta, JJ.

Colorful U.S. case of baroness, Swiss bank makes waves in international jurisdiction, student note reports

Swiss banks in Geneva. Photo by torange.biz CC BY 4.0.

Spencer K. Schneider, my eminently able teaching and research assistant, has published a short case note in a research journal, the International Journal of Procedural Law, on a Massachusetts jurisdictional case with interesting facts.

The Massachusetts Appeals Court handed a win to a Swiss heiress who claims she was suckered into a bad investment in alchemy by a fellow aristocrat, a storied Swiss bank, and American entrepreneurs. The lower court erred when it dismissed defendant Swiss bank Rothschild for want of personal jurisdiction, the American appeals court ruled in June 2019.

Mr. Schneider aptly considers: "The American approach to jurisdiction over foreign corporations via personal agency feeds the possibility of inconsistency with jurisdictional law elsewhere in the world, such as under the Brussels Convention in Europe."

The note is Spencer K. Schneider, Aristocrats’ Squabble Over Fortune Squandered on American Alchemy May Expose Swiss Bank to U.S. Jurisdiction, in Michele Angelo Lupoi, Grandes Décisions/Leading Cases, 9:2 Int'l J. Proc. L. 339, 360 (2019).

The case is Von Schönau-Riedweg v. Rothschild Bank AG, 95 Mass. App. Ct. 471, 128 N.E.3d 96 (2019) (Casetext).

Report from Quarantine Week 2: Me and the Violet Fog

Another week in quarantine.  Technically, my latter and last.  But until there's an antibody test, who can go anywhere?  Here's my self-serving report from week 2.


What I'm Reading
(besides Dr. Grillo's blog)

John O'Donohue, To Bless the Space Between Us (2008) (Amazon).  This beautiful little book with blessings for all occasions was a gift of our dear friend Sister Catherine, who missions to children on the Navajo and Zuni Reservations in New Mexico. I perused it when she gave it to us. But picking it up again now amid the present crisis, its texts (and no less its title) have a new layer of meaning. Consider these verses from the poem, "For the Interim Time":

You are in the time of the interim
Where everything seems withheld.

. . .

What is being transfigured here is your mind,
And it is difficult and slow to become new.
The more faithfully you can endure here,
The more refined your heart will become
For your arrival in the new dawn.

There are poems about travel that are especially poignant to me in present circumstances.

First Book of Samuel (BibleGateway).  My church's yearlong Bible-reading study continues telling the ancient story of Israel.  This book, which chronicles King Saul's fall and David's rise, includes David and Goliath (ch. 17) (and Samuel on the whole reminds me of the Kings TV show, not so scriptural, but a beautifully portrayed drama, with Ian McShane as the Saul character).  I should have mentioned last week that we're accompanying the reading with videos from the nonprofit animation studio, BibleProject (1 Samuel). The studio's outstanding quick-draws are a joy to watch and learn from (también disponible en español y otros idiomas).

What I'm Watching

Doctor Who s12 (2020) (season 38 overall) (BBC trailer).  Whenever there's a new doctor, you're not sure whether it's you or the actor who isn't hitting stride.  Excited as we were about the debut of Jodie Whittaker as the first female Doctor, in 2018 (eat dust, James Bond), series 11 was further complicated by the departure of storyline mastermind Stephen Moffat (still waiting on Sherlock s5, Stephen!). Whatever the reason, series 11 felt like a string of unconnected afterthoughts, despite heroic efforts by the cast to make us care.  Finally series 12 reintroduces the concept of arc, and I feel like we're back on track, story-wise.  The scripts still need work, as they condescendingly tell us rather than show us the writers' social agenda.  But looking past that, we quite enjoyed e7's devilish villains, and we're looking forward to the concluding Cyberman saga.

Chilling Adventures of Sabrina s3 (2020) (Netflix trailer).  Guilty pleasure, I admit, but this Archie Comics reimagining is too clever to resist.  Where Doctor Who lately clubs you over the head with social allegory, Sabrina catches you unawares like a Maine lobster.  If Riverdale is an artificially flavored orange pop for the brain, Sabrina is a delicate hazelnut gelato.  Amid exquisite sets, the narratives are intricate, the characters are surprisingly multilayered for a live-action comic book, and the actors perform whimsically.  Lucy Davis as Aunt Hilda Spellman walks away with best supporting actress.  We're only getting started in s3, but we're already absorbed and delighted.

Young Sheldon s3 (2019-20) (CBS promo).  Comedy break.  This show remains as strong as it premiered.  I am one of that odd contingent that doesn't like Big Bang Theory but adores Iain Armitage's young Sheldon.  That said, even I was moved by the closing scene of e16 in the Caltech cafeteria—after my wife explained it.

Late night.  All our favorites are back, reinventing themselves in this time of crisis, and, as John Oliver put it to Stephen Colbert, "committing union infractions out the wazoo" to keep us laughing.  For HBO's Last Week Tonight, Oliver just posted his third viral installment.  Production of the CBS Late Show has been a family affair in Colbert's Connecticut home; when did his kids all grow up?  His tech snafu with Daniel Radcliffe was an instant classic, and I enjoyed his gin-infused dialog with Ryan Reynolds.  We're looking forward to Tooning Out the News, premiering officially on CBS All Access on April 7.  Producing Comedy Central's "Daily Social Distancing Show" from his New York City sofa, Trevor Noah has been killing it.  His correspondents haven't missed a beat—see "What Day Is It?," Video Chat with Roy Wood Jr. and Jaboukie Young-White, and Ronnie Chieng with Andrew Yang on universal-basic-income-come-lately—and the Daily Show graphics team rallied in force this week.  Finally, a mellow highlight of the week was Monday night's musical "Homefest" on James Corden's Late Late Show (CBS).  Who needs a studio?


What I'm Eating

Garlic.  A lot of garlic.  Now's the time.  In quarantine, you don't have to worry about any close-talking strangers.  Vampires beware.  Thanks, by the way, to whoever gave us this great gift pack of Terra Delyssa organic infused olive oils, which we rediscovered in the cupboard when we feared our olive oil stock had run dry.

King cake.  And everything else in the freezer.  My culinarily gifted Louisianan wife made this for Mardi Gras, when I was in Bissau, and froze some for me.  I've been told that if we're ever allowed to return to the grocery store, I might get gumbo.  Damn you, quarantine!

Billy’s Bistro.  We’re ordering for curbside pickup this weekend.  Remember, if you can, support your local businesses!

What I'm Drinking

Peet's Major Dickason's Blend.  Peet's bestseller.  We're grinding the beans.  It gets the job done.  It's dark, which I like; my wife likes that less.  We also tried this week Community's Private Reserve Holiday Jazz, which I gave to my wife for Christmas as part of a haul of Community coffees to tide her over while I was (or would be, but am not now) in Africa.  We both love Community coffees.  But there was something off about this one's florals that I couldn't get over.  I'd give you the rest of it, but I breathed all over it, so now it's a biohazard.

McQueen and the Violet Fog (Vimeo).  This is a truly special gin, bearing the unique flavor of a 100% neutral cane spirit from Jundiaí, Brazil, which is just north and inland from São Paulo.  Among 21 botanicals, its six "signature" ingredients are basil, rosemary, fennel seed, calamansi, star anise and açai.  It's small-batch distilled from maceration and vapor infusion in a single copper pot still.  Wine Enthusiast's Kara Newman gave it a 93: "This gin is clear, with a distinctly sweet candied lemon peel fragrance. The soft palate finishes with mild violet jazzed up by white pepper and a hint of coriander. Tailor-made for an Aviation."  The name of the gin comes from a darkly quirky poem by Atticus; the last two stanzas are printed on the back of the bottle.

What I'm Wearing

This was a gift from my mom-in-law.  She gets me.

What I'm Doing to Stay Sane

That's my weight bench from high school in the 1980s, today in my garage.  It's lived with me in five states.  "Do we really need to move that?," my wife asked in Arkansas in 2011. "They have gyms in Rhode Island."  "Why, yes," I said presciently, "in case the gym closes because of a pandemic."

Happy weekend!  

Yeah, it's actually the weekend.  Like I can tell the difference....

Quarantine works. Stay home!

Art by Grace Harrington

At last check, Australia has only 28 deaths from coronavirus. A friend down under told me that on WhatsApp today, and I had to check it before I believed it. The United States topped 7,000 deaths today. There are geographic, cultural, and quantitative-relative explanations for this differential, but they cannot account for it fully without considering differences in social and legal policy responses.

And then I read this, about the 1918 flu, from my friend Dan Harrington in the March 28 Providence Journal: "Australia enacted strict quarantine measures early on in the crises. It ... was spared."

Dan's op-ed is well worth reading.  It draws on the 1918 experience to conclude, "The lessons are all too simple. If governments had adopted quarantine measures and communicated them effectively, the reduction in death would have been significant."

Observe quarantine and, to the extent possible, stay home!

Commonwealth wins two in tort: one, bad presentment; two, no duty to juvenile assaulted in contractor custody

The Commonwealth prevailed in two tort suits under the Massachusetts Tort Claims Act at the end of February.  One case, a slip-and-fall, was decided by the Massachusetts Supreme Judicial Court on the procedural ground of untimely presentment.  The other case, involving a physical assault on a juvenile with tragic consequences, was decided by the Massachusetts Appeals Court on the merits of attenuated duty and causation in civil rights liability.

Leicester Town Hall, 2006.
Photo by Pvmoutside CC BY-SA 3.0.

In the first case, "plaintiff, Katherine Drake, slipped and fell at Leicester High School while picking up her grandson during school hours. She suffered multiple injuries, including a fractured knee and wrist."  Drake mailed her presentment (notice, or demand) letter to the Town of Leicester precisely on the two-year anniversary of the accident.  The Massachusetts Tort Claims Act requires presentment within two years, and the Commonwealth moved to dismiss on grounds of untimeliness.

The Supreme Judicial Court declined to construe the statute liberally.  "Drake does not contend that her mailed letter could have arrived on that same day, nor does she contest that the office of the proper executive officer received the presentment letter ... a full two years and three days after she was injured," the court observed.  "Given our conclusion that presentment occurs upon delivery to the office of the proper executive officer," the court affirmed dismissal.

Long Island in Boston Harbor, 2008.  Photo by Doc Searles CC BY-SA 2.0.

The second case described horrific injury inflicted on a juvenile in state custody.  A "youthful offender," Williams was in Casa Isla, "a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with [the Department of Youth Services (DYS)] to operate youth residential programs." (There were other problems at Casa Isla, e.g., MassLive, WBUR.)  During a flag football game, Williams was randomly attacked by a 17-year-old resident of another VOA-operated treatment program on the island, Project Rebound, who "said he wanted to get 'kicked out.'"  After the attack, Williams experienced worsening headaches and bodily pain, but initially was given only ibuprofen.  After later emergency medical intervention, Williams was diagnosed as having "suffered ... a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care."

The last bridge to Long Island was demolished in 2015.
Photo by Eric Kilby CC BY-SA 2.0 (2017).

Upon suit under the Massachusetts Tort Claims Act, the courts rejected state liability upon various theories of DYS responsibility for the conduct of contractor VOA.  DYS and the Commonwealth had no direct involvement with the management of Casa Isla or Project Rebound, so had not even the predicate knowledge that might support liability on a civil rights theory.  Accordingly, the Appeals Court affirmed in rejecting theories of Eighth Amendment, supervisory, and vicarious liability.  Similarly, absent any affirmative act by state officials, the Commonwealth, conversely, remained within the protection of state sovereign immunity.

Associate Justice William J. Meade

Drake's case reinforces the importance of legal educators continuing to teach the 19th-century "mailbox rule," however much Generations Y and Z might not intuitively apprehend its logic.  Williams's case, however sorrowful the outcome, reinforces basic (no affirmative) duty doctrine in "constitutional tort."  As a policy matter, Williams's case also might raise questions about the wisdom of outsourcing juvenile custody without providing for public accountability.  Oh, and let's make a new rule: Anytime you're going to imprison people on a harbor island with a grisly history, that raises a red flag.

The cases are Drake v. Town of Leicester, No. SJC-12781 (Mass. Feb. 28, 2020) (Court Listener, Suffolk Law, Mass. Lawyers Weekly), and Baptiste v. Executive Office of Health and Human Services, No. 18-P-1353 (Mass. App. Ct. Feb. 28, 2020) (Justia).  Justice David A. Lowy wrote for a unanimous court in Drake.  Justice Meade wrote for a unanimous panel with Shin and Singh, JJ., in Baptiste.

Waiver of negligence precludes later suit by family, high court holds in nursing home, diving death cases

Image by edar from Pixabay

In two cases at the end of February, the Massachusetts Supreme Judicial Court made clear that a person's express disposal of a negligence claim can preclude a later wrongful death suit by family.  In other words, Massachusetts wrongful death claims are derivative, not independent, of a decedent's rights.

"Wrongful death" and "survival" actions are creatures of 19th-century statute in Anglo-American law, the historic common law having extinguished all causes of action upon death—for curious historical reasons that I won't explicate here.  Formally, "wrongful death" is an action by surviving family for their losses, upon the occasion of the decedent's passing.  "Survival" is an action by the estate on behalf of the decedent, as if the decedent had lived.  However, this distinction is often blurred in law, as the actions are brought together as "wrongful death" under Massachusetts statute, and is often blurred in fact, as a single person may stand as a family member and estate representative at the same time.  However the actions are characterized in court, wrongful death and survival have become so universally entrenched in Anglo-American tort law, often upon sparsely worded and rarely amended statutes, that they function in the courts very much like common law causes of action, subject to interpretation in deep bodies of case law.

Image by whitfieldink from Pixabay

In one of the February cases, Jackalyn Schrader, acting with power of attorney for her mother, Emma, signed a "voluntary and clearly labeled" commitment to arbitrate disputes upon admitting Emma to residence at the Golden Living Center-Heathwood, in Chestnut Hill, Mass., in February 2013.  After Emma died in December 2013, Schrader brought a wrongful death claim under Massachusetts statute, in federal court, alleging that nursing home negligence caused bedsores, leading to Emma's death.  Schrader sought to evade the effect of the arbitration agreement by pointing out that she had not signed it in her personal capacity, and state law vests a wrongful death claim in family.

Image by skeeze from Pixabay

In the second of the February cases, Margaret C. Doherty, as representative of the estate and the decedent's statutory beneficiaries, sued in wrongful death upon a 2014 diving accident that took the life of her son-in-law, 37-year-old Gregg C. O'Brien.  O'Brien "was a certified open-water scuba diver [and] drowned while participating in a promotional diving equipment event that was sponsored by [defendants] and held in Gloucester," Mass.  Before participating in the event, O'Brien had signed:

a release from liability which had several subsections that were set forth in all capital letters and underlined, including "effect of agreement," "assumption of risk," "full release," "covenant not to sue," "indemnity agreement," and "arbitration."  In capital letters under the subsection titled "effect of agreement," it said, "Diver gives up valuable rights, including the right to sue for injuries or death." It also told the decedent to read the agreement carefully and not to sign it "unless or until you understand." ... [T]he subsection titled "covenant not to sue" stated that the decedent agreed "not to sue ... for personal injury arising from scuba diving or its associated activities," and that the decedent's "heirs or executors may not sue."

Asserting defendants' negligence, Doherty sought to evade the effect of the release by pointing out that the statutory beneficiaries were not party to any agreement.

Associate Justice David A. Lowy

In Schrader's case, the First Circuit certified a question to the Supreme Judicial Court to determine whether a wrongful death action in Massachusetts is independent of a decedent's action, so Schrader would be free of the arbitration agreement, or bound by the decedent's action, so Schrader would be bound by the arbitration agreement, even though she signed it only on behalf of her mother.  Schrader might have understood that her theory under statute was weak, because she sought to play up the court's power to evolve wrongful death law beyond the text of statute.  The court agreed that it had considerable power to evolve wrongful death as a function of common law.  At the same time, though, the court insisted that its job begins with statutory interpretation.  Resorting to the text of Massachusetts's first-in-the-nation, 1840 wrongful death statute, and in accordance with the weight of authority in other states, the court found the derivative nature of a wrongful death claim inescapable.  Schrader must therefore seek relief under the arbitration agreement.

In Doherty's case, the Supreme Judicial Court cited its decision in Schrader and likewise concluded, affirming, that the claims on behalf of the decedent's statutory beneficiaries were derivative and not independent of the decedent's rights.  "Therefore ... the valid waivers signed by the decedent preclude the plaintiff, as [O'Brien's] 'executor or personal representative,' from bringing a lawsuit ... for the benefit of the statutory beneficiaries."

The cases are GGNSC Admin. Servs., LLC v. Schrader, No. SJC-12714 (Mass. Feb. 27, 2020) (Justia; Suffolk Law), and Doherty v. Diving Unlimited Int'l, Inc., No. SJC-12707 (Mass. Feb. 27, 2020) (Justia).  Justice David A. Lowy wrote both decisions for a unanimous court.