Appeals court reviews fundamentals of multiple liabilities in remanding business tort case

A Massachusetts Appeals Court decision Friday reaffirmed the rule against double recovery, the finality of settlement, and other fundamentals in a business case of joint tortfeasors.  The case is a good refresher for law students and lawyers on multiple liabilities in tort.


A company sued its former secretary-treasurer and a tax consultant for breaches of fiduciary duty through fraudulent concealment, resulting in financial loss in excess of about $288,000.  The company president, a husband, and the former principal, a wife, were recently divorced, and the latter’s separation on both counts was settled upon a $50,000 payment.  The couple furthermore stipulated an allocation of about $40,000 for the purchase of the wife’s company shares.

The company prevailed against the tax consultant on default judgment.  However, the court determined that the terms of the settlement, and specifically the allocated share purchase, inclusively credited the company with the $288,000 of the wife’s liability.

Under widely accepted state doctrine of joint tortfeasor liability in American law, a joint tortfeasor at judgment is credited with the plaintiff’s past settlement against a departed joint tortfeasor.  The rule encourages settlement by encouraging a well bargaining defendant to settle out, while deterring needless litigation by respecting the common law maxim that “a party can have but one satisfaction for the same injury.”

In accordance with the doctrine, then, the trial court ruled that the plaintiff had been made whole, so would collect nothing more from the tax consultant, however negligent.

That was an error on the merits, the Appeals Court ruled.  “Settlements are motivated by a wide range of factors, some non-monetary, and may involve significant payments or no payment at all,” the court wrote.

Justice Desmond

[T]here are many reasons [the husband] could have agreed on behalf of [the company] to dismiss the complaint against [the wife].  To name just one, having in-depth knowledge of [her] financial status, [he] may well have concluded that [she] would be unable to pay any judgment against her.  In any event, it was clearly erroneous to conclude that the plaintiff had been made whole based on no more than (i) the mere existence of a settlement [on] multiple legal claims and (ii) hearsay assertions that a discount had been given.

The court remanded for the trial court to reassess the actual measure of credit against liability represented by the share allocation, thus the remaining liability owed to the plaintiff by the tax-consultant defendant.

The case is Custom Kits Co. v. Tessier, No. 19-P-503 (Mass. App. Ct. May 1, 2020).  Associate Justice Kenneth V. Desmond Jr. wrote for a unanimous panel with Justices Wendlandt and McDonough.

UK football letter roils world sport, and real world, too

Letter posted on Twitter by the AP's Rob Harris

The English Premier League football (soccer) organization wrote to the U.S. Trade Representative in February urging that the United States put the Kingdom of Saudi Arabia on the "Priority Watch List" of countries that fail to protect intellectual property (IP) rights.

The letter has been widely reported beyond the football world for its potential implications in foreign affairs.  Where the United States is concerned, IP piracy is regarded as a critical contemporary problem, on par with national security.  Much of that regard is warranted, as countries such as China, at least historically, have been linked to IP theft as a means to unfair economic advantage, to the detriment of American enterprise.  Some of the sentiment derives from the capture of Washington by IP-wealthy corporations, to the detriment of intellectual freedom.  Regardless, the gross result has been a paper war with nations that countenance IP piracy.  To put Saudi Arabia in those U.S. crosshairs adds a layer of complexity to our already impossibly complicated love-hate relationship with the KSA—read more from James Dorsey just last week—with ramifications from Yemen to Israel.

The letter has potential ramifications within the Middle East, too.  The Premier League's indictment calls out specifically a Saudi-based pirate football broadcaster that calls itself "beout Q" and seems to operate in a blind spot of Saudi criminal justice, even distributing set-top boxes and selling subscriptions in Saudi retail outlets.  The name seems to be a thumb in the nose of beIN Sports, a Doha-based, Qatari-owned media outlet with lawful licensing rights to many Premier League and other international sporting matches.  Saudi Arabia has led the blockade of Qatar since the 2017 Middle East diplomatic crisis, a high note of previously existing and still enduring tensions between the premier political, economic, and cultural rivals in the region.

A 2016 Amnesty International report
was not flattering to Qatar or FIFA.

Football and international sport are weapons in this rivalry.  Qatar has long capitalized on sport as a means to the end of soft international power, winning the big prize of the men's football World Cup in 2022, if by hook or by crook.  Saudi Arabia has more lately taken to the idea of "sportwashing" its image, especially since the Jamal Khashoggi assassination and amid the ceaseless civil war in Yemen.

The letter roiled the world of football no less, as Saudi Arabia has been in negotiation to acquire the Newcastle United Football Club.  That purchase requires Premier League approval.  So everyone and her hooligan brother has an opinion about what it means that the league is so worked up about Saudi IP piracy as to write to the United States for help.

This unusual little letter is a reminder of a theme, known to social science and as old as the Ancient Olympics, that, more than mere diversion, sport is a reflection of our world.

Policy behind 'home confinement' as criminal sanction has evolved, law grad writes in transnational journal

A graduate of my Comparative Law class and our outgoing Student Bar Association President, Markus Aloyan, J.D. '20, has published a research article on criminal home confinement in the Trento Student Law Review.

Despite the mention of, and my current feeling of, home confinement, I didn't think that the article is related to the pandemic.  And then, lo and behold, college admission scandal perpetrators started staying home (e.g., USA Today, N.Y. Post, L.A. Times).

Here is the abstract.

Markus Aloyan

Home confinement, also known as house arrest or home detention, first appeared in the United States in the 1970s as a form of pretrial release issued after a defendant's indictment. Today, this alternative sentencing scheme possesses several additional purposes. Home confinement is imposable as a form of supervised release from incarceration and as a term of parole. More importantly, it has evolved into a condition of probation and an autonomous criminal sanction that serves in a capacity independent of probation. This article aims to show that although historically spurred in large part by the practical deficiencies of the American prison system (namely its overcrowding and excessive costs), the study of home confinement actuation promulgates a broader understanding of its effectiveness in the promotion of rehabilitation and the prevention of recidivism. Psychological and fiscal aspects will be analyzed with domestic and international (New Zealand) considerations. Concurrently, this paper draws attention to the margin of judicial discretion afforded in shaping individual home confinement implementations, and discusses its advantages and related concerns.

The article is Markus Aloyan, Home Confinement in the United States: The Evolution of Progressive Criminal Justice Reform, 2:1 Trento Student L. Rev. 109 (2020).

U.S. female footballers suffer slide tackle in equal pay match: Understanding the summary judgment decision

U.S. co-captain Alex Morgan is the first named plaintiff.
(Photo by Jamie Smed CC BY 2.0.)

The women of U.S. Soccer suffered a major setback Friday with an adverse court decision (e.g., N.Y. Times).

The U.S. District Court in Los Angeles awarded partial summary judgment to defendant U.S. Soccer, rejecting the plaintiffs' core claim in the case, pay discrimination against the U.S. women's national team (USWNT) relative to the men's national team (USMNT).   In the complaint filed in March 2019, USWNT players claimed violation of the Fair Labor Standards Act of 1938, as amended by the Equal Pay Act of 1963, and of the Civil Rights Act of 1964, as amended.

The USWNT always faced an uphill battle on the numbers.  To generalize, the women could not deny, they were paid more than the men, dollar to dollar.  The devil lies in what "more" is.

The USWNT has been fantastically successful.  The team has won the World Cup of women's soccer four times, most recently in 2019 in France (I saw a match from a Paris Fan Zone, and my daughter went to one) and won the Olympic gold four times.  The squad has been a global force to be reckoned with since its inception in the 1980s.  Moreover, many a football fan, such as myself, will tell you that the women's talent is a marvel to behold on the pitch, the United States having substantially defined the women's game for the world.

We were in France for World Cup 2019. (CC BY-NC-SA 4.0.)

Direct comparison between women's and men's play is inevitably uneven, because the style of play in the women's game is different from in the men's, apples and oranges.  And worldwide, many soccer-power nations have failed to invest in developing female talent, so any given head-to-head is not necessarily taking place on a level playing field.  Nevertheless, by many a worthwhile measure, including technical proficiency, the women indisputably are better than the men—who failed even to qualify for the 2018 World Cup in Russia.

The women's superiority was exactly their problem in the equal-pay litigation.  A plaintiff bears the burden of making out a prime facie case of pay disparity.  Compensation in professional soccer in the United States is mostly based on the principle of pay for performance.  The women played more than the men and achieved more than the men, so they were paid more.  Their burden, then, was to show, in essence, that their pay rate was relatively lower than the men's.

We win, 2019.  (Photo by Howcheng CC BY-SA 4.0.)

U.S. civil rights law is, thankfully, sufficiently sophisticated to account for disparity based on pay rate.  As U.S. District Judge R. Gary Klausner explained in the instant case, quoting precedent, it can't be that "an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA ... as long as the woman negated the obvious disparity by working twice as many hours."  However, the parties disagreed about how to calculate rate so as to compare apples to apples.

Hardening defenses on their polar positions, each side posited a favorable calculation.  Plaintiffs urged the court to look at women's compensation through the lens of the men's contract.  If the women had won the World Cup, etc., under the men's contract, they would have been far more richly rewarded.  Defendant U.S. Soccer urged the court to look at the numbers in gross.  The women simply make more than the men, and even though the women play more matches, they make more than the men on a per match basis, too.

Both positions are counterarguable.  The women's and men's contracts are both the result of collective bargaining, and a lot goes into a bargaining contract besides its raw numbers.  Simply pumping the women's performance statistics through the men's contract formula ignores the broader context of each contract, or collective bargaining agreement (CBA), and the inter-dependency of its compensation formula with other bargained-for terms: like squeezing an apple with an orange juicer.

New York ticker-tape parade for the USWNT, 2015

(Photo by Anthony Quintano CC BY 2.0)

At the same time, the women's argument in converse challenges the defendant's attempt to aggregate numbers.  Maybe the women are paid more per match because they are better soccer players, which the evidence supports.  That doesn't mean that they are paid so much more per match relative to the disparity in talent and achievement between the women and the men.  To analogize, oranges might cost more than apples because oranges taste twice as good.  But an orange for $1.20 is still a bargain relative to an apple for a dollar.

The court's recitation of the women's collective bargaining process is painstaking, packing in plenty of detail for those who want it.  In sum, considering that the plaintiffs bear the burden to make out a prima facie case of discrimination, the court found the defendant's position more persuasive.  The contractual context was really the clincher.  Judge Klausner wrote (footnotes omitted):

This history of negotiations between the parties demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to-play structure when they themselves rejected such a structure. This method of comparison not only fails to account for the choices made during collective bargaining, it also ignores the economic value of the "insurance" that WNT players receive under their CBA. 

[¶] One of the defining features of the WNT CBA is its guarantee that players will be compensated regardless of whether they play a match or not. This stands in stark contrast to the MNT CBA, under which players are only compensated if they are called into camp to play and then participate in a match. ... [T]here is indisputably economic value to this type of "fixed pay" contract, as compared to a "performance pay" contract.  Merely comparing what WNT players received under their own CBA with what they would have received under the MNT CBA discounts the value that the team placed on the guaranteed benefits they receive under their agreement, which they opted for at the expense of higher performance-based bonuses.

There are problems with the court's approach, including prominently that there are systemically discriminatory reasons that the women elected for the terms they did.  Many male players are able to make a living as athletes, so playing for the national team is a bonus.  Women's soccer meanwhile has faltered as a nationwide business model, for arguable reasons that must include the ingrained underdevelopment of women's athletics.  That makes it harder for a woman than for a man to play at the national level, even if the two squads have the same number of seats.

USWNT selfie with the President, 2015 (White House photo)

Consider that a man who plays professional soccer is incidentally training for the U.S. national team while he's at work.  And his day job gives him time off, sometimes months, to play for the national team.  A woman with a collateral occupation that is not professional soccer cannot invest the time and energy in the physical training and playing time required to be a globally competitive athlete.  Of course, some women do find work in professional soccer, but far fewer than men who do.  Characteristically, the USWNT's star players bargained for better job security not just for themselves, but to support their teammates.  And that's not all selflessness; their investment in part explains the ongoing developmental success of the USWNT over athletic generations.

That doesn't mean Klausner is wrong on the law.  The facts of the case show something we already know, which is that historically rooted discrimination can persist well beyond demonstrable intention, is exceptionally resistant to eradication, and is more susceptible to redress socially and politically than judicially.  There are good reasons why the standard to establish a civil rights violation of federal law is high.  Failure to surmount that bar in court does not establish that the plaintiff is right or wrong as a social or moral matter.

Federal courthouse in Los Angeles (Photo by Los Angeles CC BY-SA 3.0)

There were other claims in the case, and the plaintiffs' cause is not formally over, even notwithstanding appeal.  The court's treatment of the plaintiffs' claim of discrimination in turf is a worthwhile read.  Female footballers often play on artificial and unstable surfaces, resulting in physical injury and career wear and tear, while the USMNT always plays on grass.  Despite the disparity in fact, the plaintiffs were unable to prove the discriminatory motive, or intent, that civil rights law requires.

The women's case persists upon some ancillary claims related to fringe benefits, such as better hotels and more frequent charter flights for the men's team than for the women's.  There might not be enough there for the women to want to keep the litigation going.  Plaintiffs probably will ask Judge Klausner to allow interlocutory appeal to the Ninth Circuit directly from this partial summary judgment, and I expect he will.

The case is Morgan v. U.S. Soccer Federation, No. 2:19-cv-01717 (C.D. Cal. May 1, 2020).  Court Listener has the key documents.

Report from a Social Distance Week 6: Chilled goslings stir spicy Creole squall on murderous Mamajuana lakes

Geese with chilly goslings on the East Bay Bike Path

A below-average cold April on WJAR NBC TurnTo10

It’s been a cold week.  One day, Providence, Rhode Island, set a record-low high at 42°F (5.5°C), and that was before wind chill.  My local meteorologist made a graphic (inset) showing it to be one of our coldest latter-halves of April on record.  Like the stay-at-home order, winter drags on.

A first sign of spring that I always eagerly anticipate happened: the appearance of goslings at Brickyard Pond.  They must be freezing their fuzzy down off, wondering how they hatched into such a dreary realm.  The gosling stage is the only time that the geese are adorable.  Soon they grow up to be grimy, hissing fiends, churning out green excretions that coat shoes and bike tires.

Yet they look delicious.  If the chicken runs out, be warned….  ̚ – ̚

It’s come to this.

Week 6.


What I’m Reading

John DeMers, Arnaud’s Creole Cookbook: Memoirs and Recipes from the Historic New Orleans Restaurant (1988) (Amazon), and The Food of New Orleans (Periplus World Cookbooks 1998) (Amazon).  My mom-in-law gifted these books to my wife for her birthday, and I was delighted to discover that they both feature generous narratives about New Orleans history and culture, as well as cuisine.  Once upon a time, John DeMers (Delicious Mischief) was a UPI reporter.  He made the jump from hard news to world food and in time became a highly regarded food writer about his native New Orleans and home south Texas.

Arnaud's in 2009 (Infrogmation of New Orleans CC BY-SA 2.0)

In Arnaud’s, DeMers recounted the history of the famous French Quarter restaurant and its original owner, the larger-than-life, namesake “Count” Arnaud Cazenave.  When, on the occasion of his 70th birthday, high-living, nightlife-loving, cigar-toting Arnaud was confronted with the inevitability of his own demise, DeMers recounted, Arnaud answered, “‘It is possibly a fact…. But it is my secretary who usually informs me of such things.’”  DeMers then traced Arnaud's history through the latter 20th century, from the coarse, colorful, and gifted, yet ultimately tragic figure of Arnaud's daughter, Germaine Cazenave, to a renaissance for the restaurant under the management and ownership of Archie Casbarian and family.  At times, the story is curiously newly relevant to the contemporary threat of coronavirus to our family-owned institutions, especially restaurants.

In the Periplus cookbook, DeMers compiled essays from NOLA personalities in food culture.  My favorite entry comes from writer Paul A. Greenburg, U. Mo. journalism alum and Tulane lecturer, who, in “This Ethnic Gumbo Pot,” beautifully describes the kaleidoscope of contributions to New Orleans cuisine from Africa, Ireland, the Mediterranean, and the Pacific Rim.  The only problem with this book is that it will make your mouth water before you even get to the recipes.  By the time I finished DeMers’s restaurant roll call in “A New Orleans Dine Around,” I was hungry enough to strangle a goose.

I’m a periodic online reader of The Guardian, the U.K. daily news source, and a regular downloader of The Blizzard, a U.K.-based electronic quarterly about football (soccer).  I mention this because while I’ve previously urged you, dear reader, to #Save­Our­Restaurants, I’ve overlooked our journalistic institutions that also are suffering in this crisis.  If we lose our independent Fourth Estate, we lose a democratic prerequisite, more than mere dietary diversity.  A Guardian pop-up this week observed that I’d recently read six Guardian stories without making a contribution.  Da*n those tracking cookies.  I was appropriately shamed into giving something small, and you can too, whether to The Guardian or your preferred investigative reporting enterprise.

Meanwhile, The Blizzard launched The Squall, “The Blizzard’s breezy brother,” a shorter and more frequent dispatch designed to help The Blizzard’s brilliant freelance writers, illustrators, and photographers make ends meet during the crisis.  Apparently, the creative juices were well pent-up, as the first Squall comprises 78 pages of illuminated rumination on right-back footballers, all at a “pay what you can” price point.

Isaiah (ProvidenceLithograph Co.)

Our church's Bible reading continues into the Book of Isaiah.   The BibleProject has a video that examines the first 39 chapters.  Those are the ones consistently attributed to the original prophet Isaiah, the "Proto-Isaiah," probably in the 8th century B.C.  There are different opinions about the book's mortal authorship thereafter.  Everyone is welcome to join our church for online worship on Sunday at 0930 US EDT.  Geared to "times like these," the message will be on James 4.

What I’m Watching

Red Riding Hood (2011).  We canceled HBO Now one day after our monthly renewal, so we felt like we should work at getting our money’s worth.  Red Riding Hood was better than its Rotten Tomatoes 10% portends.  Famous for big grosser Twilight (2008) and her ouster from the franchise before poorer performer New Moon (2009), Catherine Hardwicke went on to direct Red, which has a similar dark fantasy feel.  The story retold is a murder mystery, like an Orient Express whodunnit set in a fairy-tale village under siege by a monstrous werewolf.  Then fresh from the finale of Big Love, Amanda Seyfried starred.  She’ll be the voice of Daphne in the shortly forthcoming Scoob!.

Dexter s5-8 (2010-13).  Quarantine is the time to catch up, and it had been years since my Dexter viewing lagged after season 4.  Maybe I wasn’t sure the show could get better after “Trinity Killer” John Lithgow’s creepy villainy.  But I found that Dexter’s second series half was up to snuff.  Jonny Lee Miller—whom, I will never fail to remind you, I saw on stage in New York last year—was killer as my now-favorite Dexter nemesis, Jordan Chase, in season 5.  Season 6 was a bit weak; Edward James Olmos deserved a role better befitting his acting admiralty.  But seasons 7 and 8 picked the pace back up with a spicy romantic arc featuring Yvonne Strahovski of Handmaid’s Tale (Serena) fame.  Critics whinged about the series finale, but I thought it was great.  Sometimes things end the way they have to end, not the way we wish they would.  No spoilers.

What I'm Eating

We were neglectful of our #Save­Our­Restaurants agenda this week.  We’ve had goose eggs wrapped and roasted in toilet paper every night. Seriously, we've been cooking at home, using up what's in the fridge, and enjoying it.  My wife whipped up a Southern-style chicken'n'grits with roasted carrots just last night.  It looks like we'll be here for a while, so we'll double down on supporting local establishments this coming week.  No goose was harmed in the making of this dish.

What I’m Drinking

Pecan Praline Coffee.  From storied Louisiana purveyor Community, this shout-out to southern hickory lets us escape the dreary wet cold of a New England morning and for a few minutes imagine ourselves munching candy-coated drupes under the sizzling sunlight of a Natchitoches summer.

Mamajuana Spicy.  I brought this Chez & Brug product back from the Dominican Republic.  Mamajuana is a liquor made from a maceration of “endemic tree bark, leaves, and spices.”  The label describes this Caribbean staple as “reminiscen[t] of wood and anise,” and that’s about right.  Its flavor is similar to chicory, but without the bitter edge, and the concoction goes down with a warm smoothness, a perfect respite before or after dinner.

The Lakes Gin.  This is a workmanlike gin from the holiday-friendly Lakes District of Britain.  The gin comes in an exquisite blue-glass bottle boasting a lace-like diamonded texture.  The Lakes Distillery sits on a renovated Victorian farmstead, lakeside of course, in Cumbria County, and welcomes visitors in normal times.  The gin is made with water drawn from UNESCO World Heritage Lakes District National Park.  The distillery lists botanicals as principally juniper, coriander, and angelica, and secondly, orris root, cassia bark, liquorice, and orange and lemon peel.  The Gin Foundry described the result as “clean” and “polished,” if a “little too manicured.”

Company of the Daughters of Charity
of Saint Vincent de Paul
(Photo by or Eugenio Hansen, OFS
CC BY-SA 3.0)

What Else We Can Do To Help

Our friend Sister Catherine (mentioned here a few weeks ago), who works on the Navajo and Zuni reservations, sent along an alarming story from Today about the rampage of coronavirus there.  Healthcare and hygienic conditions already are subpar—to a shocking point in our developed country—inviting the virus to devastate the Navajo Nation.  Nary a notion of bureaucracy separates the sisters from the people they serve, so not a penny is wasted.  If you want to help, donations may be earmarked for the Navajo Nation, payable to the Daughters of Charity, and sent to: Sr. Patricia Miguel, DC, Provincial Treasurer; Seton Provincialate Administration; 26000 Altamont Rd.; Los Altos Hills, CA 94022-4317.

Happy May Day.

(Photos in introduction, "Eating," and "Drinking"
by RJ Peltz-Steele (CC BY-SA 4.0); no claim to underlying works)

Informe costarricense mixto sobre libertad de expresión: tribunales presionan por transparencia; ley se mueve contra discurso de odio, desinformación

[English translation by Google.]

Desde la perspectiva norteamericana, Costa Rica ha sido aclamada durante mucho tiempo como un modelo de democracia en las Américas. Eso es lo que me llevó a enfocarme en Costa Rica para estudios universitarios en periodismo comparativo, y fue así que desperté un amor por el país. Es importante destacar que San José opera como la sede de la Corte Interamericana de Derechos Humanos. La afinidad de Costa Rica con los Estados Unidos se remonta en los tiempos modernos a la transformadora y ahora legendaria primera presidencia de Óscar Arias en la década de 1980 (sin dejar de mencionar las recientes acusaciones, e.g., Time). Si hoy es cierto, en algún sentido, que Costa Rica está a la vanguardia de los derechos humanos regionales, entonces vale la pena ver los acontecimientos en Costa Rica como un referente.

Un nuevo informe exhaustivo sobre la libertad de expresión y la libertad de información en Costa Rica ha sido emitido por el Programa de Libertad de Expresión y Derecho a la Información y el Centro de Investigación de Comunicación de la Universidad de Costa Rica (HT@ Observacom). En general, este informe revela un sistema legal que lucha con problemas que son familiares en otros países—por ejemplo, el acceso público y periodístico a las plataformas de redes sociales cuando un político aparentemente elige hacer negocios allí. Un informe de este tipo no es único en las Américas (mira, e.g., México 2019), y este no es el primero de Costa Rica; admito que me atrajo debido a la coincidencia de algunos problemas que me interesan, incluso colegiación de periodismo, mencionados a continuación.

El primer capítulo del informe (y el único que he leído) está escrito por la abogada, periodista, y académica, Giselle Boza Solano. Boza concluye con preocupación que no ha habido movimiento legislativo en Costa Rica para garantizar la proliferación de las diversas voces en la era de internet, donde el mercado del discurso y la elaboración de la política del habla están cada vez más dominados por los grandes proveedores de servicios, como Google. Su preocupación está sincronizada con los movimientos en Europa, con Francia a la cabeza, y en América Latina, con Uruguay como organizador. Costa Rica parece ser próximo en esta lista. Sin embargo, Boza, y el informe, reconocen y examinan las iniciativas para financiar los esfuerzos cinematográficos y audiovisuales con un impuesto a las plataformas digitales y la televisión por suscripción.

Corte Interamericana de Derechos Humanos
(foto por Eli NW CC BY-NC-SA 2.0)

Además, me anima el comentario de Boza sobre la jurisprudencia costarricense. Si la selección es indicativa, los tribunales, en la mayor parte, parecen mantenerse a la par con su compromiso histórico con las libertades de expresión e información. En el área de libertad de información, el Tribunal Constitucional dictó decisiones que facilitan el acceso electrónico a datos meteorológicos y el registro electrónico de la policía en lugares públicos. Los tribunales dictaron decisiones que facilitaron el acceso de los ciudadanos al proceso legislativo y a la legislación. La inclinación por los legisladores a retirarse a la oscuridad en nuestros tiempos difíciles parece ser una norma universal.

El Tribunal Constitucional también reprendió al Colégio de Periodistas por afirmar una provincia exclusiva sobre el derecho a llamarse a sí mismo periodista, ante la queja de un periodista digital sin el título universitario, como se requiere. El tribunal reiteró la consecuente opinión consultiva de la Corte Interamericana de Derechos Humanos de 1985, incluso antes de que el periodismo digital existiera propiamente. Es bastante sorprendente que esto todavía sea algo que deba adjudicarse 35 años después. (Escribí sobre este caso cuando era estudiante en 1993 y, para ser justo, la situación es un poco más complicada de lo que parece en la superficie. Aún así….)

Hay motivos de preocupación más allá de la falta de impulso para la libertad de internet. El proyecto de ley mejoraría o aplicaría el castigo penal por el discurso de odio y la difusión de desinformación ("noticias falsas"). Tales leyes se encontrarían en conflicto contra la libertad de expresión. Costa Rica ciertamente no es el único país con tales propuestas sobre la mesa, pero, nuevamente, esto es problemático en una democracia de vanguardia.

Eso es solo el capítulo 1. El informe presenta un análisis cuantitativo de la autopercepción de los medios, y, también, capítulos sobre publicidad, violencia contra las mujeres en las noticias, y más. La publicación es el II Informe sobre el estado de la libertad de expresión en Costa Rica (2020) (descargar por capítulo).

Muchas gracias a mi editor en español, Ricardo Serrano, politólogo, periodista, estudiante de derecho, y creador de contenido electrónico.  Los errores son todos míos.

Recent commentaries ponder privacy in license plates, history of animal identity

Two blog entries tangentially related to areas of interest of mine crossed my desk this week.

CC TV (Adrian Pingstone CC0)

Privacy law.  For The Volokh Conspiracy at Reason, UC Berkeley Professor Orin Kerr wrote about the Massachusetts Supreme Judicial Court decision in Commonwealth v. McCarthy, No. SJC-12750, on April 16.  The Court considered the implications of automatic license plate readers under the Fourth Amendment, concluding that there are constitutional consequences, if not resulting in a violation of the defendant's rights in the instant drug case.  Kerr considers the case relative to the Supreme Court's 2018 cell-tower-location decision, Carpenter v. United States, and against the background of his own work on mosaic theory in privacy law (he's not a fan).  In a purely civil context, mosaic theory, born in the national security arena, has long been a key underpinning of personal privacy rights in their encroachment on the freedom of information, an accelerating conflict in the information age.  The commentary is "Automated License Plate Readers, the Mosaic Theory, and the Fourth Amendment: The Massachusetts Supreme Judicial Court Weighs In" (Apr. 22, 2020).

Peacock plumage (Jatin Sindhu CC BY-SA 4.0)

Animal law.  Evolution of animals at law was the subject of an Earth Day commentary for Legal History Miscellany by history Professor Krista Kesselring at Dalhousie University in Nova Scotia.  She traced the historical change in cultural and common law regard for animals from aesthetic adornment, to property of utility, to something, perhaps, at last, with intrinsic value.  The commentary is "Can You Steal a Peacock? Animals in Early Modern Law" (Apr. 22, 2020).  U.S. courts have evidenced a dawning recognition of animals as more than mere personal property, even in a civil context, moving beyond welcome developments in criminal anti-cruelty statutes.  The nascent trend is evident and needed especially in the area of tort damages, in which the valuation of a pet as an item of property fails profoundly to account for real and rational emotional suffering upon loss.  See furthermore the recent: Richard L. Cupp, Jr., Considering the Private Animal and Damages (SSRN last rev. Apr. 2, 2020).  HT @ Private Law Theory.