May 6, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 2

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Governance and the Indian Private Equity Model" 
National Law School of India Review, Volume 27, Issue 1
UC Davis Legal Studies Research Paper No. 484

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

Private Equity (PE) firms have long invested in Western firms using a leveraged buyout (LBO) model, whereby they acquire a company that they can grow with the ultimate goal of either selling it to a strategic buyer or taking it public. Unable to undertake the traditional LBO model in India, PE investors in Indian firms have developed a new model. Under this Indian PE Model, PE firms typically acquire minority interests in controlled companies using a structure that is both hybridized from other Western investment models and customized for India's complex legal environment. As minority shareholders in controlled firms, PE investors in India have developed several strategies to address their governance concerns. In particular, PE investors in India have focused on solutions to address local problems through the use of agreements that govern (i) the structuring of minority investments, (ii) investor control rights, and (iii) exit strategies. Nevertheless, recent governance and regulatory difficulties highlight the continuing uncertainty surrounding the Indian PE model.

"National Data Governance in a Global Economy" 
Columbia School of International and Public Affairs Issues Brief, April 2016
UC Davis Legal Studies Research Paper No. 495

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Global data flows are the lifeblood of the global economy today and of the technologies of the future. Yet, the regulation of how data is to be handled remains largely the province of national laws. How we resolve the dilemmas of global flows within a nation-state structure will impact the digital economy, free expression, privacy, security, consumer protection, and taxation. Just as we once built an architecture for cross-border flow of goods, we need to build an architecture for cross-border flow of information.

"The Charming Betsy and the Paquete Habana" 
UC Davis Legal Studies Research Paper No. 485

WILLIAM S. DODGE, University of California, Davis - School of Law
Email: wsdodge@ucdavis.edu

This chapter for the book "Landmark Cases in Public International Law" discusses two famous U.S. Supreme Court decisions - The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions - that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism - away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.

"Probate Lending" 
Yale Law Journal, Vol. 126, 2016
UC Davis Legal Studies Research Paper No. 492

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: achandrasekher@ucdavis.edu

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibition, opening the door for businesses to invest in other parties' claims. Although some courts, lawmakers, and scholars applaud litigation lenders for helping wronged individuals obtain relief, others accuse them of exploiting low-income plaintiffs and increasing court congestion.

This Article reveals that a similar phenomenon has quietly emerged in the probate system. Recently, companies have started to make "probate loans": advancing funds to heirs or beneficiaries to be repaid from their interest in a court-supervised estate. The Article sheds light on this shadowy practice by empirically analyzing 594 probate administrations from a major California county. It finds that probate lending is a lucrative business. Nevertheless, it also concludes that some of the strongest rationales for banning the sale of causes of action - concerns about abusive transactions and the corrosive effect of outsiders on judicial processes - apply to transfers of inheritance rights. The Article thus suggests several ways to regulate this nascent industry.

"The Social Transmission of Racism" 
Tulsa Law Review, Vol. 51, 2016
UC Davis Legal Studies Research Paper No. 489

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

This essay reviews two books, Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard University Press 2014) and Osagie K. Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). Sussman is an anthropologist who brings his expertise to bear in tracing scientific racism through history. Obasogie is a legal scholar and sociologist who uses both qualitative data gathered through interviews with blind and sighted people and Critical Race Theory to explore racialization's dependence on the idea that race is visually obvious. Each book examines an idea that has sustained racism despite social, political and geographic change. The essay assesses each account and links the authors' analyses to judicial and legislative framings of reproductive rights and to postmodernist scholarship on race, gender and the human body.

"Computer Source Code: A Source of the Growing Controversy Over the Reliability of Automated Forensic Techniques" 
DePaul Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 487

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

The article deals with two legal issues posed by the growing trend in the United States to automate forensic analyses.

Since World War II, we have had alarming insights into the unreliability of both eyewitness testimony and confession evidence. Those insights have prompted the criminal justice system to place greater reliance on forensic evidence. In one Rand study, the researchers found that expert testimony was presented at 86% of the trials examined. This shift to greater use of expert testimony has placed growing demands on crime laboratories. For example, the backlog of unanalyzed DNA samples has become such an acute problem that Congress was impelled to enact the DNA Backlog Elimination Act to provide funding to reduce the backlog of untested rape kits.

In both the public and private sectors, the typical response to the development of a backlog is technological automation. That has certainly held true for forensic analysis. There is now widespread automation in such areas as fingerprint examination, breath testing, and DNA analysis. The argument runs that automation holds the promise of both enhancing efficiency and improving the accuracy of the analyses proffered in court.

That promise turns on the accuracy of the source code controlling the software governing the automated techniques. The source code embeds the instructions determining which tasks the program performs, how the program performs them, and the order in which it performs the tasks. The validity of a program's source code is the most fundamental guarantee of a software program's reliability. Defense counsel have sometimes challenged the software for automated forensic techniques. Early in this century, the defense counsel attacked the software controlling automated infrared breath testing devices. Today they are challenging the software for the TrueAllele program analyzing mixed DNA samples. Those waves of cases have posed two issues: (1) whether the prosecution can lay a sufficient foundation for evidence based on an automated technique without presenting testimony about the computer source code; and (2) whether the defense has any discovery right to access to the code. Almost all the courts have answered the first question in the affirmative and the second question in the negative. In responding to the second question, the courts have reasoned that the existence of validation studies for the technique eliminates any need to scrutinize the source code and that in any event, manufacturers have an evidentiary privilege protecting the code as a trade secret. The purpose of this short article is to critically evaluate the judicial response to both questions.

On the one hand, the article argues that the courts have correctly answered the first question. More specifically, the prosecution may lay an adequate foundation by presenting testimony describing validation studies for the automated technique even if the testimony does not touch on the source code. On the other hand, the article contends that in some cases, the courts ought to accord the defense a pretrial discovery limit. The article explains the limited utility of validation studies and notes that the evidentiary privilege for trade secrets is a qualified one that can be surmounted when the party seeking discovery has a significant need for the information. The article proposes a procedure that judges can employ to resolve the tension between the defendant's need for access to the source code and the manufacturer's legitimate interest in safeguarding its valuable proprietary information.

"Beyond Surveillance: Data Control and Body Cameras" 
__ Surveillance & Society __ (2016) Forthcoming
UC Davis Legal Studies Research Paper No. 494

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Body cameras collect video data - lots of it - and thus many have raised questions about increased government surveillance. But if understood primarily as data collection, surveillance represents only one concern. In our big data age, "seeing, monitoring, and recording the digital footprints is quite different from sharing, releasing, revealing or publicizing the data." Body camera policies must address not only concerns about surveillance, but also data control.

"Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'" 
Buffalo Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 488

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession.

"Welfare Queens and White Trash" 
25 Southern California Interdisciplinary Law Journal 289 (2016)
UC Davis Legal Studies Research Paper No. 486

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

The "welfare queen" is widely recognized as a racialized construct deployed by politicians to undermine support for public benefits and the wider social safety net. Less often recognized or discussed is the flip side of the welfare queen's conflation of blackness with dependency and poverty: the conflation of whiteness with self-sufficiency, autonomy, and affluence. The welfare queen trope, along with media and scholarly depictions of socioeconomic disadvantage as a nonwhite phenomenon, deflects attention from white poverty. Yet data indicate that a majority of poor people in the United States self-identify as white.

This essay, written for the "Reframing the Welfare Queen" symposium, (re)surfaces the existence of white poverty and ponders its (in)visibility, meaning, and significance in relation to the welfare queen construct. Among other things, Pruitt suggests that the welfare queen stigmatype is not just bad for blacks, it is bad for poor whites. First, it obscures white poverty, rendering poor whites and their plight invisible. Second, to the extent we are aware of white poverty, the widespread conflation of whiteness with affluence suggests that poor whites have only themselves to blame, given the benefits widely associated with white-skin privilege.

Given the welfare queen's potency as a racialized construct, we might assume that greater awareness of white poverty would enhance public support for safety net programs because middle and upper income whites would (so the story goes) want to ameliorate white poverty, even if racial animus discourages their support for poor blacks. But Pruitt questions the soundness of this line of reasoning, which discounts the existence and potency of intraracial discrimination in assuming that society feels greater empathy with or concern for the fate of poor whites than for poor nonwhites. In fact, we have several reasons - including empirical studies - to believe that such a well of empathy is missing. A further reason for skepticism is found in a second racialized construct explored in this article: white trash.

"Tax Cannibalization and Fiscal Federalism in the United States" 
Northwestern University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 491
UC Berkeley Public Law Research Paper No. 2750933

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

The current structure of U.S. federal tax law incentivizes state governments to adopt tax policies that inflict costs on the federal government, at the expense of national welfare. We label this the "tax cannibalization problem."

This article introduces the tax cannibalization problem to the law and policy literatures for the first time. This article also explains how U.S. federal tax law might be restructured so as to alleviate the tax cannibalization problem - to counteract the perverse incentives currently leading U.S. state governments to design their tax systems so as to, in effect, wastefully devour federal tax revenues.

"Stitches for Snitches: Lawyers as Whistleblowers" 
UC Davis Law Review, Forthcoming (2017)
UC Davis Legal Studies Research Paper No. 493

DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

This Article challenges the prevailing wisdom that ethics rules forbid lawyers from blowing the whistle on a client's illegal conduct. While a lawyer is not free to disclose confidential information in every jurisdiction for every legal violation, the ethics rules in all jurisdictions permit disclosure of confidential information pertaining to a client's illegal activities under certain conditions. Proving the lie of the prevailing wisdom, this Article examines a high profile case in the state of New York that ruled a lawyer whistleblower violated the state's ethics rules by revealing confidential information to stop his employer-client from engaging in a tax fraud of epic proportions. The Article argues that the court undertook a deficient analysis of New York ethics rules pertaining to permissive disclosure of confidential client information. Even if the whistleblower had violated his ethical obligations, the New York False Claims Act (the statute under which he brought his action) expressly protects disclosure of confidential employer information made in furtherance of the statute. In addition to New York's statutory shield, federal courts across the country have developed a public policy exception safeguarding whistleblowers for disclosing confidential information that detects and exposes an employer's illegal conduct.

While challenging the previously unchallenged criticism of lawyer whistleblowers, this Article acknowledges the intrinsic appeal of that position. The idea of a lawyer revealing a client's transgressions - particularly for monetary awards paid under various federal and state whistleblower programs - seems unsavory and a threat to the attorney-client relationship. Nonetheless, lawyers have always had the discretion to disclose confidential information to prevent a client from committing a crime or fraud. And although the addition of financial incentives complicates the analysis, modern ethics rules extend to lawyers considerable discretion in revealing confidential client information, even if disclosure makes a lawyer eligible for financial awards.

July 5, 2010

Lessons in Development and Democracy: From India to West Virginia


Photo © Lisa R. Pruitt 2010

The closing line of my recent blog post asked: "Is even democracy a luxury for the poor?"

Shortly after writing it, I came across this quote by Senator John D. Rockefeller IV, featured in the obituary of Senator Robert C. Byrd who died last week. Regarding the vast federal aid that Byrd garnered for West Virginia over the years, Rockefeller said Byrd knew that “before you can make life better, you have to have a road to get in there, and you have to have a sewerage system.”

This comment resonated with me, struck me as accurate. Yet it ran counter to my thinking about Robert C. Byrd for the past few decades. While I have always considered Byrd a fine man (well, aside from his Klan membership as a younger man) and appreciated his dedication to the Senate, I saw him primarily as a poster child for the excesses of pork barrel politics. Rarely was he in the news, it seems, without some mention of the federal aid he was able to channel to West Virginia. Indeed, his obituary in the New York Times states that he built, "always with canny political skills, a modern West Virginia with vast amounts of federal money." Elsewhere, it includes this quote from Senator Byrd himself, “I lost no opportunity to promote funding for programs and projects of benefit to the people back home.” He referred to West Virginia as "one of the rock bottomest of states."

Rockefeller's comment, however, reminded me of what was at stake with all that aid for West Virginia. It was not only welcome centers and courthouses and such. It was the state's development from an economic backwater, which requires roads and bridges. As Rockefeller observed, advanced sanitation makes a big difference, too. Indeed, it goes hand in hand with education and other health and human services in enhancing the state's human capital.

The quote from Rockefeller also reminded me of this provocative line from Aravind Adiga's The White Tiger (2008): "If I were making a country, I'd get the sewage pipes first, then the democracy." The White Tiger is a story from the other side of the world—from India—but it is related to what Byrd tried to do for West Virginia in several senses. The Indian story—like the story of many West Virginians—is about rural poverty. Its social, geographic, and economic context is the uneven development that has left rural India's residents behind while much of the rest of the nation zooms ahead in the name of progress (and, of course, capitalism). Parallels to rural West Virginia are apparent.

India - Sights & Culture - rural transport truck
Photo by McKay Savage

We city dwellers don't think much about sewage pipes. We take them for granted. But lots of people in the U.S. and in India don't have them. Indeed, some don't even have clean water. (Read U.S. stories here and here.) When those living in metropolitan areas fret about roads, it is about getting a car pool lane, or sound walls, or even a whole new freeway. In rural areas, residents fret about how to get your (dirt) road graded, never mind getting it paved. (Read stories about the economic significance of road building in India, too, here and here).

Both the Rockefeller and Adiga quotes suggest the power of government to lift people out of poverty—perhaps even the nation state's duty to do so. If we agree that the government should play a role in responding to deprivation, is it fair for West Virginia to get more federal aid (assuming that it does on, say, a per capita basis) than, for example, Pennsylvania or Washington or Florida? Wouldn't it represent distributive equity to give West Virginia and similarly deprived states more? Of course, the Indian Constitution recognizes some socio-economic rights, e.g., the right to life, which has been construed to obligate the state to provide a certain healthcare and education infrastructure. The U.S. Constitution makes no similar provision, protecting only civil and political rights. (Yet, as Robert Byrd once pointed out, "The Constitution does not prohibit humble servants from delivering whatever they can to their constituents").

Constitutional and other legal mandates aside, the question remains: what should government do in the face of grossly uneven development and the resulting spatial inequalities in access to infrastructure and services? What is just and ethical? I've been writing recently about Amartya Sen and Martha Nussbaum's capabilities framework for assessing well-being, including their thinking about government's role in endowing residents with core capabilities such as those life and bodily health. I'm recalling Sen's use of the phrase "antecedent inequality" to justify giving more to those with less, to raise them to a sort of parity with the "haves." That has me reflecting on Robert Byrd's career a little differently than I previously had. I'm now wondering: is it really "pork" if it responds to antecedent inequalities? If getting sewage pipes into rural places—be they in West Virginia or India—helps rural residents achieve a minimum level of well-being, shouldn't we be doing it?

To circle back to democracy for a moment, consider this quote from Sen about the very nature of development:

Development consists of the removal of various types of unfreedoms that leave people with little choice and little opportunity of exercising their reasoned agency.

That leaves me wondering: At what point are citizens so deprived of what they need to survive—what Nussbaum refers to the as the life and bodily health capabilities—that they are effectively incapable of exercising the civil and political rights so valued by liberal democracies. Isn't the lack of sewage pipes and other basic infrastructure an "unfreedom" that cries out for development—whether in India or West Virginia?

Cross posted to SALTLaw.org/blog and Legal Ruralism.

June 20, 2010

The Executioner’s Conscience

Draper facility, Utah State Prison.
Photo
by David Jolley

“The five law enforcers remain anonymous, and will be stationed behind a gun ported brick wall in the execution chamber. The executioners will be armed with .30-caliber rifles, four of which will be loaded with live rounds. The weapon carrying the blank round will be unknown to the law enforcers.”
Execution Procedures, Utah Dept. of Corrections

Ronnie Lee Gardner committed heinous acts condemned by all civilized people. Given a choice of methods of his own execution, he elected to face death by firing squad.

The procedures instituted by the state suggest more ambivalence about this procedure than one might have expected. The five peace officers called upon to perform this civic duty are to remain anonymous. One can understand that, given possible future shifts in public opinion about the death penalty, it might make sense to hold the executioner anonymous. (This differs sharply, of course, from systems that hold judges anonymous.)

The more intriguing decision is the fact that information is withheld from the executioners themselves. None of the five officers knows if he or she is the one who helped cause the death or if his or her rifle carried a blank.

None of the five law enforcers knows if he or she is indeed an executioner. Why does the State of Utah deny this information from these officers?

February 14, 2010

Small-town "justice" run amok?

I have been intrigued by the attention national media have given this week to a criminal trial in West Texas.  Ann Mitchell, an administrative nurse at the community hospital in Winkler County, went on trial in state court charged with "misuse of official information," a third-degree felony that carried a possible fine of $10,000 and up to 10 years in prison.  The charges stemmed from an anonymous letter that Mitchell and another administrative nurse wrote to the Texas Medical Board.  In it, they called the Board's attention to irregularities in how Dr. Rolando G. Arafiles was practicing medicine at the hospital where they worked.  The nature of the irregularities and report are described in a New York Times story as "a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services."  The nurses believed they were under a professional obligation to make the report, but following it, the Winkler County Sheriff's Office seized their work computers and arrested them.  The local prosecutor subsequently charged the nurses with the third-degree felony, and the Winkler County Hospital fired them.  Those consequences apparently unfolded after the Medical Board notified Dr. Arafiles of the anonymous complaint and he told his "friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter."  The prosecutor says that Mrs. Mitchell has a history of making "inflammatory" statements about Dr. Arafiles and that she did not make the report in good faith.  To establish the felony charged, however, the State must prove that she disseminated confidential information for a "nongovernmental purpose" with intent to harm Dr. Arafiles. 

The prosecutor dropped charges against Mrs. Mitchell's colleague just before the case went to trial.  A jury in neighboring Andrews County acquitted Mrs. Mitchell on Thursday.  The jury voted unanimously on the first ballot to acquit the nurse and questioned why she had ever been arrested.  Read more here.

New York Times reporter Kevin Sack observed that "seeming conflicts of interest are as abundant as the cattle grazing among the pump jacks and mesquite" in the small town of Kermit, population 5,714, where these events unfolded.  Indeed, subsequent reports reveal an additional conflict:  according to filings in a federal case the nurses have brought against Arafiles, the Sheriff, and Winkler County, the Sheriff is a partner in Dr. Arafiles' herbal supplement business, a business that Arafiles promoted in emails to patients.   

Despite the obscure locale of these events--or perhaps because of it--the New York Times published three items about them last week.  The paper reported last week-end on the impending trial of Mrs. Mitchell, and later in the week it reported the not-guilty verdict.  In between, it published an editorial commenting on apparent flaws in the prosecution and the chilling effect it might have on whistle-blowing.  

The first NYT story about these events inspired this blog post on my Legal Ruralism blog, and I was especially intrigued that the story attracted as much attention as it did.  On the day it appeared, it rose as high as number 2 on the "most emailed" list at nytimes.com, and it stayed on the top-10 list for nearly two days.  I attributed the high degree of interest to the broad headline, "Nurse to Stand Trial for Reporting Doctor."  Many doctors and nurses all over country were presumably taking note of this unusual event and sharing the news.  But the New York Times reporting and editorial suggest several ways in which this story is distinctly "rural" or "small-town." In addition to referring to the apparent conflicts of interest, Sack's reporting refers to the "stained reputations" of the nurses and how "heads turn when they walked into local lunch spots."  He also reports the practical difficulties that rural hospitals like that in Winkler County have in attracting and retaining physicians; indeed, Dr. Arafiles came to the hospital in 2008 with a restriction already on his medical license.  The trial was moved to neighboring Andrews County because it "polarized the community."  Finally, the New York Times editorial suggests that "small-town 'justice'" was the problem.  

So, is there really something distinctly "rural" about this story, or could it happen anywhere? Clearly, it could happen anywhere, though I tend to agree with the Times' suggestion that the rural context facilitated this unusual prosecution. 

Rural sociologists and other scholars who write about rural-urban difference have discussed a number of factors apparently at play in these West Texas events.  These include lack of anonymity and conflicts of interest that sometimes result from it; rural disadvantage in terms of access to services such as medical care; a lack of checks and balances in rural local government and a related failure of local government to protect civil rights.  In this case, heightened reputational injury associated with lack of anonymity and the inability of the dismissed nurses to find replacement jobs because of the limited labor market presumably increased the damages they suffered.  This little case out of Kermit, Texas thus illustrates how various characteristics of rural places can be legally relevant in a variety of ways.  Some of the challenges associated with rural lack of anonymity were apparently mitigated by the change of venue.  Whether law and legal actors adequately respond to other challenges associated with rural places--such as those that seem to have aggravated the nurses' damages--may be evident when their case against the various officials is tried or settled.

Cross-posted to Legal Ruralism Blog.