Dear reader, if you read The Savory Tort via email subscription, then, first, thank you; and, second, regrettably, a small change will be necessary for you to continue your generous devotion of time to this blog.
Google will terminate its Feedburner application in July 2021. Feedburner is Blogger's email delivery service.
There are many online tools to manage your blog reading. For those of us who still depend on email in our work, email remains our favorite way to learn about new blog postings. It's a simple matter to replace the function of Feedburner, which is, essentially, to convert an RSS or Atom feed to email. I'll be doing this for the blogs that I follow.
My favorite and an easy-to-use tool to get this done is Blogtrottr. This tool is recommended by librarians at the University of Missouri. Blogtrottr's ad-supported plan is free.
All you need to do is enter the URL of a blog's RSS or Atom feed and your email address into the boxes on Blogtrottr's home page, where it looks like this:
Even if you don't know a blog's RSS or Atom address, Blogtrottr usually can detect it, if there is one, if you enter the URL of the blog's home page (for example, http://www.thesavorytort.com/). Blogtrottr lets you decide whether you want to receive real-time notifications or periodic digests. The system will send you an email to confirm your subscription choice. Of course, you can unsubscribe from a blog anytime.
Rapinoe speaks at the White House (from White House video).
Today a federal district court in California is expected to approve a partial settlement over working conditions in the equal pay battle between the U.S. Women's National Team and U.S. Soccer. The settlement leaves the central issue of equal pay in play in the case.
As Tokyo seeks "to blunt" its fourth wave of coronavirus, public support and flat-out feasibility fade for pulling off the 2020 Olympic Games even in the summer of 2021. An Olympic omission will downplay the news of late March that the U.S. Men's National Team failed to qualify for the Olympics upon a loss to Honduras. Meanwhile the U.S. Women's National Team (USWNT) has been training up for another record-shattering international appearance.
The USWNT has not fared as well in court as on the pitch. On the equal-pay front, the USWNT complainants suffered a major setback in a trial court decision in May 2020. I wrote then that the court's conclusion was defensible on the law, if arguable on the rationale and tormenting for its rank unfairness. The complainants plan to appeal.
One is left to marvel at U.S. Soccer's shameless persistence of what I can only imagine is a cold commitment to the bottom line. At some point, the bad PR for the sport in America must become too costly even in the commercial calculation. And with the winds having shifted in Washington, the women wisely have opened up other fronts in the war.
A soccer legend in her own time and a hero of mine, USWNT captain Megan Rapinoe has been on a tear lately on the PR-and-lobbying circuit. On March 24, she joined the J'Bidens at the White House to commemorate "Equal Pay Day."
The White House visit had added significance because Rapinoe feuded with Donald Trump while he was on office—see commentary in 2019 by Sue Bird, Rapinoe's then girlfriend, now betrothed—and Rapinoe said she would not go to the White House even if invited. In March, President Joe Biden ordered resuscitation of the White House Gender Policy Council, and Rapinoe gave the White House visit a positive review. Newsweekobserved that Rapinoe received a White House invite before Sen. Mitch McConnell.
Here is Rapinoe's statement at the White House. Watch the whole event at YouTube; Rapinoe's four minutes followed statements by USWNT teammate Midge Purce and First Lady Jill Biden.
Rapinoe got her money's worth out of her ticket to Washington, because she also testified before the House Committee on Oversight and Reform, which was "examining the long-term economic impacts of gender inequality." Her affirmative statement, below, ran only about two and a half minutes. With experts representing NGOs also testifying, Rapinoe participated in the questions and answers afterward; the full-length video of the committee hearing is posted online (image from House video).
Rapinoe wound up her testimony with the USWNT rallying cry, "LFG." She has since remained ready to fight when the situation calls for it, recently, as Comic Sandsput it, "eviscerat[ing an] NBA star who criticized female athletes 'complaining' about pay gap." An HBO Max-CNN Films documentary on the USWNT, titled "LFG" (teaser), is set for release later this year.
All the while, Rapinoe has let no artificial turf grow under her feet. At the day job on Saturday, she scored for the USWNT to pull out a draw against Sweden and preserve the women's undefeated streak.
Rapinoe published a memoir, One Life, in the fall.
From our dining room table, a chocolate bunny left over from the weekend is staring me down. Two things are keeping me from biting off its smug head. First, I just got back from a run of only a couple miles, and I feel like I'm breathing through a straw.
Second, earlier today, I watched Chocolate's Heart of Darkness, a study of child labor in the chocolate supply chain. The 42-minute piece is free on YouTube, posted September 2020.
This English version is credited to German public broadcaster Deutsche Welle (DW), though the film originated with French independent documentary firm Premieres Lignes in 2019. French journalist and filmmaker Paul Moreira directed. On YouTube, Chocolate's Heart of Darkness appears as "Bitter Chocolate," which risks confusion, because that is the title of an equally disturbing but different project on the same subject: s2e05 of the Netflix documentary series, Rotten, directed by Abigail Harper and also released in 2019.
Both of these Bitter works update, with precious little progress to report, the sorry state of affairs captured in the 2010 documentary The Dark Side of Chocolate, which was co-directed by Danish journalist Miki Mistrati and American U. Roberto Romano, a photojournalist and human rights activist who passed away in 2013.
Cocoa I photographed in Ghana in 2020. The DW film depicts industry reliance with some success in certification tracking in Ghana, but not in Côte d'Ivoire. (RJ Peltz-Steele CC BY-NC-SA 4.0)
In the last decade, I've refrained from recommending the 2010 docko to students or colleagues, because it's one of those films in which the makers' agenda so powerfully muscles in on the narrative that the viewer is left with reservations over objectivity. But now, with two more projects in the same vein and all compasses pointing in the same direction, I think it's fair to discount nuanced indications of bias and say that Big Chocolate has a real mess on its hands.
Litigation against American agri-giant Cargill, a key broker in the global chocolate trade, and against Swiss-based multinational Nestlé, over child labor—practically, slavery—sits presently in the U.S. Supreme Court (Cargill, Nestlé at SCOTUSblog). A decision, due any day, seems likely to kick the claims out for lack of U.S. jurisdiction under the alien tort statute, however much some Justices might have been troubled by what they heard in oral argument in December.
Even if the suits were to proceed in U.S. courts, or in any courts, Chocolate's Heart of Darkness gives a flavor of how hard the claims would be to prosecute. Abusive child labor is so entrenched in West African forests, and nations such as Côte d'Ivoire so utterly incapable of establishing rule of law in these remote places, that it is scarcely imaginable that cocoa could be harvested any other way. This is to say nothing of rampant deforestation to meet demand.
The film shows that the certification and tracking mechanisms set up with, let's give the benefit of the doubt, the best of intentions by the corporations to make good on sustainability pledges are so riddled with corruption as to be farcical. It strains credulity to suppose that transnational companies do not know the reality. But knowledge is not necessarily culpability. And this is hardly the only supply chain that leads from Western fancy to catastrophic human toll in the developing world.
I don't think that my chocolate bunny is going to last the week. But it's going to make me sick in more ways than one.
I've posted at YouTube a video series aimed at helping law students sharpen their scholarly writing.
Eschewing production quality in favor of illustrative screen sharing, the series presents a range of self-assessment strategies culled from my decades as a teacher and legal writer, with a deep nod to my schooling and experience in journalism. The series, "Better Law School Writing," is designed to help law students in seminars, or anyone attempting expository work, to step outside their writing and view it critically.
The four videos attack the writing project at four levels of abstraction, from (1) "the big picture," focusing on introduction and purpose (47 mins.), to (2) top-level organization (22 mins.), (3) paragraph-level assessment (19 mins.), and (4) sentence-level assessment (37 mins.). I put some of my own work on the pyre for analysis, as well as draft work submitted by students in past years. The lessons are not inter-dependent, so a writer might find any one useful to strengthen skills in an area of concern.
The Massachusetts Supreme Judicial Court today ruled on efforts by Facebook to resist disclosures arising from an internal investigation into application development. The disclosures are sought by the commonwealth attorney general, which is investigating allegations of consumer data misuse.
The court's ruling is mixed, but, overall, Facebook gained ground. The court allowed Facebook more latitude than it won in the lower court to resist disclosure on grounds of attorney work product. On remand, the lower court will have to scrutinize the records to separate attorney opinion, which is protected, from mere facts, which are not. The SJC agreed with the lower court that one set of records was within attorney-client privilege, and Facebook will have to produce a privilege log.
Facebook seems to be taking seriously the investigation by the office of Attorney General Maura Healey, and it should. The company hired fixer-firm Gibson Dunn to handle its internal investigation and is represented by Wilmer Hale in the Massachusetts investigation. Massachusetts data protection regulation is antiquated relative to the latest generation of regulations in Europe and California, but the law has been on the books for more than a decade. The AG was represented in the SJC by attorney Sara Cable, whose appointment last year as the office's first chief of data privacy and security signaled an intent to ramp up data protection. Massachusetts consumer protection law, "93A," the basis of the AG investigation here, is famously expansive, often displacing common law tort in private enforcement and affording generous damages.
Justice Scott Kafker wrote the lengthy opinion for the court in Attorney General v. Facebook, No. SJC-12946 (Mass. Mar. 24, 2021). Justice Kafker is on a tear of late, having written the court's opinion in a sea change in tort law in late February and the court's unanimous ruling against Gordon College in a First Amendment religious freedom case on March 5.
A sustainability regulation from the EU promises to be the next big compliance hurdle deployed on the continent to affect transnational businesses based in the United States and around the world.
Kot speaks today on "Sustainable Investment – The New Heart of EU Financial Market Regulation." His lecture will be published in the CUA YouTube playlist [now available & below]. Here is the abstract.
With increasing concern for global climate change and following the 2015 Paris Agreement obligations, the European Union adopted the Regulation [2019/2088] on Sustainability-Related Disclosures in the Financial Services Sector (SFDR), which took effect beginning March 10, 2021. The SFDR, along with draft regulatory technical standards and the EU’s Taxonomy Regulation, require financial market participants to incorporate sustainability considerations in their governance frameworks, as well as to prepare disclosures and reporting to investors about environmental, social, and governance factors. The EU sustainable investment regime reaches US entities offering investment funds and financial services to European clients. The EU General Data Protection Regulation sent shock waves across the Atlantic and required many US lawyers and businesses quickly to become expert in GDPR requirements. The EU’s ESG requirements are likely to have a similar dramatic border-crossing impact.
Kot is a markets, products, and structuring lawyer for UBS, the
Swiss investment bank and financial services company with worldwide
offices including more than 5,000 employees in Poland. He heads the asset management stream of the legal department in the UBS Kraków
office.
When I last wrote about the winter-spring line-up for the lecture series, the following spring offerings were yet to be announced. It's not too late now to sign up for four more programs.
April 14 – Katarzyna Wolska-Wrona, "Approaches to Combating Gender-Based Violence: The Council of Europe Istanbul Convention and a US Perspective"
April 27 – Mary Graw Leary, "#MeToo and #Black Lives Matter: Conflicting Objectives or Opportunities for Advancement of Shared Priorities?"
May 12 – Regina T. Jefferson, "Examining United States Retirement Savings Policy through the Lens of International Human Rights Principles"
June 2 – Wictor Furman, "European and US Perspectives on Investment Fund Regulation"
My students in comparative law especially might be interested in the April 14 program by attorney Wolska-Wrona, an expert with the EU Agency for Fundamental Rights. Our class looked at eastern European skepticism of the Istanbul Convention as part of our examination of contemporary issues in EU law. The matter remains timely; Turkey's withdrawal triggered protests just two days ago and was condemned by the Biden Administration. I also look forward especially to the presentation of Professor Jefferson, who is a gem of a scholar and colleague.
Clameur de Haro was invoked to block the burial of William the Conqueror in 1087.
Image from Amable Tastu, La Normandie Historique (1858).
We've all seen the strain of the pandemic on our socioeconomic fabric and the rule of law.
Last week came the alarming news that a federal district judge in Texas ruled unconstitutional the eviction moratorium issued by the Centers for Disease Control. Judge Campbell Barker held in Terkel v. CDC that the moratorium exceeded the federal power that the CDC could exercise on behalf of Congress under the Article I Commerce Clause and Necessary and Proper Clause of the U.S. Constitution.
A friend and colleague on Jersey, a Crown dependency close to France, sent along this fascinating item from the Jersey Evening Post. A Jersey resident who was served with eviction papers after being unable to pay the mortgage invoked "an ancient legal right" called "the Clameur de Haro." The Post explained:
To enact the Clameur the aggrieved party must go down on one knee in the location of the offence and then, with hands in the air and in the presence at least two witnesses, must call out: "Haro! Haro! Haro! A l'aide, mon Prince, on me fait tort." This translates as: "Hear me! Hear me! Hear me! Come to my aid, my Prince, for someone does me wrong." The offending activity must cease. The individual then needs to put the grievance down in writing and lodge it with the Judicial Greffe within 24 hours.
Jersey is a fascinating study in comparative law. One might expect the island to be legally indistinguishable from the UK, but that is not the case at all. Jersey has its own parliament and legal system. Unlike the UK, Jersey is not a member of the Hague Convention on the enforcement of foreign civil and commercial judgments, so a foreign entity wishing to enforce there must seek to register the judgment through a domestic legal process.
Collas Crill, "an offshore law firm that never stands still," wrote an explainer in 2018 on the Clameur de Haro in neighboring Channel Island Guernsey, where the process seems to be the same. The explainer added, "After the cry, both the Lord's prayer and a Grace must be recited by the complainant in French."
Quartz reported how a woman in Guernsey stopped construction on a road improvement project in 2018 by invoking the Clameur de Haro. According to Quartz, "[t]he clameur was first recorded in Norman law in the 13th century. Its use is believed to have originated in the 10th century as an appeal to Rollo, Viking founder of the Norman dynasty, according to a 2008 article in the Jersey and Guernsey Law Review by lawyer and legal historian Andrew Bridgeford."
Collas Crill lawyers further explained, "Arguably the main reason for the continued use of the Clameur is the
immediacy of its effect, although in modern times an additional
perceived benefit is the publicity it can draw to your cause."
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