Saturday, March 27, 2021

Ford Plays Legal Hardball With Accident Victims

            The Supreme Court gave the back of its hand to the Ford Motor Company last week [March 25] by rejecting the company’s six-year legal effort to avoid product-defect suits in state courts in Minnesota and Montana stemming from serious automobile accidents in those states.

            The two accidents occurred a few months apart in 2015, six years ago. One mishap left a Montana woman, Markkaya Jean Gullett, dead after her 1996 Ford Explorer ran off the road because of a tire failure.The other accident left a Minnesota man, Adam Bandemer, with a severe brain injury because the air bag in the 1994 Ford Crown Victoria failed to deploy after Bandemer’s friend rear-ended a snowplow as they were en route to a favorite ice-fishing spot.

The two accidents had one thing in common: plaintiffs quickly filed product liability suits against Ford in their home state courts that blamed the injuries on dangerous defects in the Ford-manufactured vehicles. Ford, a Fortune 500 company incorporated in Delaware and headquartered in Michigan, responded to the suits as though the company was being hauled into court in some remote territory with an unfamiliar and unfriendly legal system. In fact, Ford is well familiar with Minnesota and Montana law since the company advertises in both states and sells thousands of cars in both of the states every year.

            Ford crafted a legal strategy that only a law school graduate could see as sensible. Ford argued all the way to the U.S. Supreme Court that Minnesota and Montana courts had no power to force Ford to trial for injuries to their citizens stemming from accidents within their state boundaries. Ford argued instead that the state courts had no jurisdiction over the company because the vehicles involved in the two accidents had not been designed, manufactured, or sold in those states.

            Under Ford’s theory, Bandemer or Gullettt’s personal representative needed to come to Michigan to try to hold the company accountable for the injuries that the allegedly defective Ford vehicles caused. The lawsuits would have been a heavy lift for the plaintiffs, requiring expensive expert testimony to prove the claimed defect and to prove the defect as the proximate cause of the victims’ injuries.

            Ford has an army of in-house lawyers and outside counsel well familiar with defense of product liability lawsuits. Product liability law is no recent or radical innovation in the United States and actually dates back to the early 20th century. In an opinion by the future Supreme Court justice Benjamin Cardozo in 1916, New York’s highest state court established the principle that a manufacturer can be held liable for injuries resulting from a dangerously defective product that the manufacturer introduces into the stream of commerce.

            The defendant in that case, the Buick Motor Company, tried to escape liability for injuries resulting from a defective wooden wheel on two grounds, both as artificially contrived as Ford’s legal strategy in the present-day cases. Buick disclaimed responsibility for the defective wheels by noting that Buick did not manufacture the wheels but only installed them. In addition, Buick argued that the plaintiff needed to sue the dealer, not the manufacturer.

            A century later, neither of those arguments would hold water in a U.S. court today. But Ford’s team of legal pettifoggers saw an opening in the present-day cases by looking to the somewhat complex rules governing a state court’s jurisdiction over an out-of-state company. An out-of-state company can be subject to a state’s general jurisdiction based on its contacts with the forum state—for example, advertising and sales in the forum state. Under a 1945 Supreme Court precedent, however, “specific jurisdiction” in an individual case requires evidence that the out-of-state company’s activities in the state relate to the events at issue in the litigation.

            Justice Elena Kagan made short shrift of Ford’s arguments in her mostly unanimous opinion for the Court in Ford Motor Co. v. Montana Eighth Judicial District. “Allowing jurisdiction in these cases treats Ford fairly,”  Kagan explained, given Montana’s and Minnesota’s interests in the events. “An automaker regularly marketing a vehicle in a State,” Kagan wrote on behalf of five justices, “has ‘clear notice’ that it will be subject to jurisdiction in the State’s courts when the product malfunctions there.”

Three conservative justicesThomas, Alito, and Gorsuch—agreed with the result but  argued in separate opinions that the five-vote opinion improperly stretched the Court’s prior decisions governing jurisdiction over out-of-state companies.

            Ford had influential allies in making its case. The U.S. Chamber of Commerce, several other business lobbies, and the Trump administration all filed friend-of-the-court briefs urging the Court to rule for Ford. Trial lawyers groups, civil procedure professors, and thirty-nine states weighed in with friend-of-the-court briefs on the other side. The states’ brief warned that Ford’s proposed rule “would undermine principles of fair play and substantial justice.”

            As for justice, the plaintiffs in the two states have been put on hold for six years now, still waiting for their day in court before a jury of their peers in their home states. Ford, which proudly touts its vehicles as “built tough,” ought to pay a price in the marketplace for its callous treatment of the accident victims in these cases.

            So far, however, Ford has escaped widespread attention to the case. The case drew limited news coverage when the justices heard oral arguments in October and only back-page coverage when the Court issued its decision on Thursday. But would-be car buyers might want to keep Ford’s anti-consumer position in these cases in mind when they start shopping.


Sunday, March 21, 2021

Republicans Play Politics With Anti-Asian Hate

     Robert Aaron Long’s motives for shooting and killing six Korean American women who worked at massage parlors that he frequented for quick sex are less important than the urgent need to stop Donald Trump and other Republicans from stoking and exploiting anti-Asian prejudices for their political purposes.

            The political stakes lurking in debates about the case became manifest two days later [March 17] when Republican members of Congress accused Democrats and others of trying to deny Republicans the right to criticize China. Rep. Ted Lieu, a California Democrat and a Taiwanese immigrant, reacted sharply, according to the Washington Post’s coverage when the Texas Republican Chip Roy aired that complaint during a House Judiciary subcommittee hearing convened to examine the spike in anti-Asian hate crimes over the past year.

            “You can say racist, stupid stuff if you want,” Lieu snapped. “But I’m asking you to please stop using racist terms like ‘kung flu’ or ‘Wuhan virus’ or other ethnic identifiers and describe them as a virus. I am not a virus.”

            Republican politicians will not stop, however, because the racist tropes are part of a political strategy that serves their purpose by stirring their political base and justifying the anti-immigration polices that are part of the GOP’s current platform. Indeed, Trump, as former president, used the killings not as an opportunity to condemn anti-Asian prejudice but instead as another occasion to blame the current pandemic on what he insists on calling “the China virus.”

            To their credit, President Biden and Vice President Kamala Harris traveled to Atlanta three days after the killings [March 19] precisely for the purpose of meeting with Asian American leaders to address the crisis in anti-Asian hate crimes. “Hate and violence often hide in plain sight and so often met with silence,” Biden said after the meeting. “But that has to change because our silence is complicity. We cannot be complicit. We have to speak out. We have to act.”

A close examination of Long’s life and his actions on the day of the killings [March 15] indicates that he acted less out of anti-Asian animus than out of tortured guilt for his pornography-fueled sex addiction. A faithful parishioner at a fundamentalist church in the Atlanta area, Long nevertheless filled many waking hours by watching Internet pornography and satisfied his sexual appetites by patronizing massage parlors where attractive Asian women provided muscle-relaxing massages finished off with “happy endings.”

            Even if Long’s killing spree is eventually prosecuted as simple murder without a hate-crime enhancement, the shootings cannot be separated from the economic and sociological reality that the Asian American writer May Jeong described in an op-ed in the New York Times [March 20]. Jeong, currently writing a book about sex work, aptly described the victims of Long’s killing spree as living “at the nexus of race, gender, and class”—working in a somewhat seamy business to satisfy the sexual fantasies of hyper-priapic white men.

            Jeong details the long history of anti-Asian prejudice in the United States dating from the late 19th century with the 1882 passage, for example, of the Chinese Exclusion Act, the first and only major federal law to exclude a specific ethnic group from entering the United States. That history makes clear that Trump cannot be accused simply of creating anti-Asian prejudice, but he can be blamed for inexcusably feeding anti-Asian racism as a political strategy for gaining the presidency and perhaps regaining power in the future.

            To be sure, the novel coronavirus can be traced back to Wuhan, China, and the Chinese government has been less than forthcoming with World Health Organization investigators seeking to establish the origins of the virus and the pathways that the virus traveled in creating perhaps the worst global plague in human history. But Trump’s racist trope serves his purpose in blaming China for the plague and deflecting blame from the White House and his administration for failing to move swiftly to contain the virus and continuing to give his supporters license to ignore the measures that public health authorities recommend to stop the spread—steps as simple as mask wearing and social distancing.

            Indeed, even as Trump touts and exaggerates his role in the rapid development of effective vaccines, he declines to join with other former presidents in urging Americans to get vaccinated as soon as time and circumstance allow. Public opinion polls indicate that as many as 40 percent of Republicans do not plan to get vaccinated, apparently valuing their personal freedom and distrust of medical authorities over the need to do their part in creating “herd immunity” that will protect themselves and their families as well as their neighbors and the rest of us.

            Appearing on the PBS NewsHour on Friday [March 19], the New York Times columnist David Brooks acknowledged, regretfully, that the policy response to the pandemic has been infected with politics from its earliest days. But he voiced the hope that at the personal and community level, politics will become less important as the now skeptical Republicans consult with their own doctors and consider more carefully how best to defeat the virus while protecting themselves and their families as well.

On that score, as the always-cautious analyst might say, time will tell. But the outcome will  turn in part on whether Republicans decide to show more interest in public health than in political points and political posturing. The outlook, as the Eight Ball might say, is “cloudy.”



Sunday, March 14, 2021

Biden: A "Just Tell Me the Truth" President

            With Joe Biden’s first primetime address to the nation fresh in mind, it is worth recalling that Donald Trump marked his first day as president by propagating the bald-faced lie that the crowd that witnessed his inauguration from the National Mall was the largest in history. Television networks quickly disproved his claim by showing side-by-side photos of the sparse crowd for Trump’s inauguration and the much larger crowd for Barack Obama’s inauguration eight years earlier.

            Kellyanne Conway, a senior adviser to Trump, dismissed the easily refuted untruth as “alternative facts.” Journalists mocked her nonchalant reply, without fully appreciating the insidious political intent behind the phraseology.

Trump’s lies were not a bug, but a feature of his presidency. He realized from the outset that he could propagate lies from the White House that his rabid followers would believe and incorporate into an alternate reality. He took this tactic to an extreme in his post-Nov. 3 insistence that he had actually won the election, Polls indicate that around three-fourths of Republicans in fact believe Trump’s lie that Biden was not legitimately elected as president.

            Biden promised a different approach in his primetime address Thursday night [March 11] by recalling the campaign vignette when he asked a voter in Philadelphia, “What do you need most?” Her reply was simple and straightforward: “I just want the truth. The truth. Just tell me the truth.”

            Biden’s 25-minute address marked the first anniversary of the outset of the coronavirus pandemic. He recalled, without naming “That Other Guy,” the slow and ineffectual response from the then president. “Denials for days, weeks, then months that led to more deaths, more infections, more stress, and more loneliness.

            Trump, it will be recalled, minimized the pandemic even as the death toll climbed steadily to surpass half a million while he was still in office. By contrast, Biden went to empathetic lengths to avoid sugar-coating what he called “the “collective suffering” and “collective sacrifice” that all of us have experienced over the past year. He noted that he carries in a pocket a card showing the current number of COVID19 deaths in the United States: as of March 11, 527,726, more he said than the number of American deaths in World War I, World War II, the Vietnam War, and 9/11 combined.

The Washington Post’s fact-checker Glenn Kessler spotted a discrepancy within two hours after Biden had finished. In fact, the number of deaths in those conflicts totals more than 583,00 by including the World War I deaths from the Spanish influenza epidemic then sweeping the world. Kessler noted that in previous statements, Biden had been more careful to refer to “combat” deaths in the four conflicts. Compare this discrepancy to any of Trump’s 60,000 lies during his four years as president.

Apart from his chastening recollections, Biden made real news in the address by announcing that he would order all states to make the coronavirus vaccine available to all adults age 18 and over by May 1. On Fox News, opinion hosts such as Laura Ingraham and Sean Hannity complained that Biden had failed to credit Trump for spearheading the accelerated development of the vaccine. Biden instead gave credit in his address to “researchers and scientists.”

            The Fox News acolytes failed to note, however, that Trump and Melania declined to join the country’s four other living ex-presidents and ex-first ladies in urging all Americans to get vaccinated. Trump himself was vaccinated secretly while still in the White House. A PBS poll conducted in early March found that 49 percent of Republican men say they have no plans to get vaccinated. By contrast, 87 percent of Democrats included in the survey said they had already been vaccinated or planned to be vaccinated.

            Biden accurately and regretfully noted the political divisions that the pandemic has engendered among Americans. “Too often,” he said, “we’ve turned against one another. A mask—the easiest thing to do to save lives—sometimes it divides us. States pitted against one other instead of working with each other.”

            “My fellow Americans,” Biden said with reassuring confidence, “you’re owed nothing less than the truth. And for all of you asking when things will get back to normal, here is the truth. The only way to get our lives back, to get our economy back on track is to beat the virus.”

            Significantly, Biden did not call it the “Kung-Flu” virus, as Trump did, or the China virus. Without specifically blaming Trump, Biden instead noted the “vicious hate crimes” against Asian Americans, many of them front-line workers trying to save lives but forced to live in fear. “It’s wrong, it’s un-American, and it must stop,” Biden said.

            Defeating the virus, Biden said, was his top priority and requires – with an acknowledgment of the seeming hyperbole – a “war footing.” He detailed the steps he had taken in his first 50 days in office to work with vaccine manufacturers in expanding the vaccine supply. By now, the number of seniors over age 65 who have been vaccinated has risen from 8 percent to 65 percent. For seniors over age 75, the numbers have increased from 14 percent to over 70 percent.

            “I need you to get vaccinated,” Biden said, pleadingly, “when it’s your turn and when you can find an opportunity, and to help your family and friends and neighbors get vaccinated as well.”  

Sunday, March 7, 2021

United States 'Less Free' Under Trump

             President Donald Trump ended his fourth year in the White House not by making America great but by leaving it less free, according to the respected human rights watchdog Freedom House. The group’s annual report on global democracy – titled this year “Democracy Under Siege” – lowers the United States’ score on political freedom and civil liberties by three points on a 100-point scale from 86 in 2019 to 83 in 2020, down from a B to a B-minus.

            The United States’ score fell in large part because of policies Trump carried out or supported while in office and in part because of his refusal to concede defeat in an election that Freedom House assessed as free, fair, and transparent. As in previous annual reports, dozens of countries — forty-nine by my count — surpassed the United States’ overall score, including all of Western Europe and such major U.S. allies as Australia, Canada, Japan, and Taiwan.

            The United States’ score dropped in three broad categories: functioning of government; freedom of expression and belief; and freedom of assembly. Freedom House attributed the downgrade in regard to governmental functioning to what it called “a pattern of politically motivated disinformation and attempts to control or manipulate official findings related to the COVID-19 pandemic” and “the president’s abrupt dismissal of several inspectors general who had documented or investigated malfeasance by administration officials . . . .”

            The decline in freedom of expression and belief was attributed to “a dramatic increase in arrests of and physical assaults on journalists across the country during the year, with most cases linked to coverage of protests.” Relatedly, Freedom House blamed the decline on freedom of assembly to “excessive police and federal agency responses to racial justice protests during the year, including thousands of arrests and numerous documented instances of police brutality . . . .”

            Freedom House opens its country report on the United States by citing its “vibrant political system, strong rule-of-law tradition, robust freedoms of expression and religious belief, and a wide array of other civil liberties.” Critically, however, the report notes that those democratic institutions “have suffered erosion” in recent years, “as reflected in partisan manipulation of the electoral process, bias and dysfunction in the criminal justice system, flawed new policies on immigration and asylum seekers, and growing disparities in wealth, economic opportunity, and political influence.”

            By ironic coincidence, Freedom House released its report last week [March 3] just after the Supreme Court, with three Trump-appointed justices, had heard arguments in an election law case that threatens to weaken federal protections against state laws that limit voting rights for minorities. The three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—seemed unsympathetic along with other conservatives to the Democratic and minority groups challenging the Arizona laws at issue in the case.

            The group’s report also voices concern about what it calls “de facto disenfranchisement . . . among racial and ethnic minority communities, which are disproportionately affected by laws and policies that create obstacles to voting.” The report blames those obstacles on, among other factors, “various state election-management policies.”  The report also notes that state laws denying voting rights to citizens with felony convictions “disproportionately disenfranchise black Americans, who are incarcerated at significantly higher rates than other populations.”

            President Trump is faulted in the report for having presented “a number of challenges to existing norms of government ethics and probity.” As one example, the report noted criticism from anticorruption watchdogs of Trump’s decision to ”shift management of his real-estate development empire to his children rather than divesting himself or establishing a stronger structural barrier between himself and his businesses.”

            The report noted that the president, his staff, and special interest groups “frequently visited and held events at Trump-branded properties in the United States . . . .generating publicity and income.” It also noted the potential conflicts created by appointing daughter Ivanka Trump and son-in-law Jared Kushner as presidential advisers, given their own business interests and relationships.

            Trump is also faulted in the report for  “frequently” making false or misleading statements and failing to correct them when challenged by the press or others. Overall, the Trump administration governed with “greater opacity than its immediate predecessors,” according to the report, “by making policy and other decisions without meaningful input from relevant agencies and their career civil servants.”

            Freedom House was downbeat not only about the United States but about the rise of anti-democratic trends worldwide. The report cited 2020 as the fifteenth consecutive year of global decline in freedom. The global map shows Russia, the Middle East, and most of Asia as “not free” and, discouragingly, India— the world’s most populous democracy­–as “partly free.” The African continent is mostly “not free,” with a dozen countries rated as “partly free,” and only four as “free” – Botswana, Ghana, Namibia, and South Africa.

            In the western hemisphere, most of Central and South America is rated as free, including three countries with higher scores than the United States: Argentina, Chile, and Uruguay. The only countries rated as “not free” are Cuba, Nicaragua, and Venezuela. Mexico and the Andean countries from Colombia to Paraguay are rated as partly free.

            The Freedom House report notes that the global decline in freedom dates from the end  of George W. Bush’s presidency and continued through the Obama era, but it faults Trump for “four years of neglect, contradiction, or outright abandonment” of the U.S. tradition of global leadership on democracy. The report adds, encouragingly, that President Biden “has indicated that his administration will return to that tradition.”