June 25, 2020
Professor Steve Meili was quoted in a MinnPost article regarding the U.S. Supreme Court’s recent decision rejecting the Trump Administration’s efforts to scuttle the Deferred Action for Childhood Arrivals (DACA) program. Because of that decision, over 700,000 “Dreamers” (undocumented persons brought to the U.S. as children and protected by DACA) need no longer fear imminent deportation. In the MinnPost article, Prof. Meili pointed out that the Supreme Court ruled on technical grounds, rather than the legality of DACA per se. It held that the reasons articulated by the Trump Administration for rescinding the program were arbitrary and capricous. This means that the Administration could revise its reasons in order to try and pass Supreme Court muster, but that is unlikely prior to the November elections. One item of note in the decision is that three of the Justices (Alito, Gorsuch, and Thomas) would have invalidated the program entirely.
Prof. Schwarcz Quoted in Bloomberg Law Regarding Court Venues for Insurance Coverage Lawsuits Brought on by COVID-19June 25, 2020
Professor Daniel Schwarcz was quoted in a Bloomberg Law article examining court venue fights between policyholders and insurers in business interruption coverage lawsuits brought on by the COVID-19 pandemic. Policyholders tend to see a better chance of success in state and local courts, while insurers are generally pushing to move these cases to federal court. “A lot of insurers feel they’ll get a fairer shake in federal court,” said Schwarcz. Federal judges aren’t elected, and “are perceived as being more removed from any politics” that could influence a decision.
June 24, 2020
Professor Eugene Borgida was quoted in a Popular Science article regarding, among other related topics, the implementation of implicit racial bias training for police and its impact on more equitable policing practice. Psychological science on what makes for an effective bias reduction program suggests that forced participation in [implicit bias training] tends to make participants defensive and untrusting, which makes for a less effective program, said Borgida. Slowly gaining the respect and interest of a few officers at a time may be a better strategy than mandating the process for an entire department, added Borgida.
June 23, 2020
Prof. Kristin Hickman was quoted in a Bloomberg article, “Supreme Court DACA Ruling Could Sway Environmental Permits’ Fate,” regarding certain administrative law implications of the Supreme Court’s reasoning in Department of Homeland Security v. Regents of the University of California. The Court in Regents rejected DHS’s rescission of the Deferred Action for Childhood Arrivals (DACA) program for lack of adequate contemporaneous agency, relying in part on a precedent known as Chenery I to disregard a second agency memorandum offering additional justifications for DHS’s action. The article focused particularly on the significance of that part of the Court’s reasoning for a remedy for Administrative Procedure Act violations known as remand without vacatur, which is often used by lower courts in environmental cases to give agencies a second chance to explain their actions. Prof. Hickman was quoted as saying that the remand without vacatur remedy has always been in tension with Chenery I and that circuit courts considering the Court’s reasoning in Regents might be more cautious about using that remedy when agencies fail to explain themselves adequately.
Prof. Ní Aoláin Featured in Esquire on the Potential for Authoritarians to Abuse Emergency Powers During and After the Global COVID-19 PandemicJune 22, 2020
Professor Fionnuala Ní Aoláin, faculty director of the Human Rights Center, was featured in an Esquire article discussing the heightened risk for abuse of emergency power by authoritarian states during and after the global COVID-19 pandemic. “Historically, when a nation augments its arsenal of emergency powers, it’s very hard to put them back in the box,” said Ní Aoláin. “So there is grave danger that this repurposing isn’t short-term, and that the costs are going to be extremely high on fundamental rights, like the freedom of movement, speech, assembly, participation in elections.”
June 22, 2020
Professor Kristin Hickman was quoted in a Wall Street Journal article, “Supreme Court Declines to Hear Tech Challenge to IRS Rules,” regarding the Supreme Court’s denial of certiorari in Altera Corp. & Subs. v. Commissioner, a tax case concerning whether cost-sharing regulations interpreting the Internal Revenue Code were invalid under the State Farm doctrine of administrative law for inadequately explaining the government’s reasons for adopting the regulations. The United States Tax Court relied in part on Prof. Hickman’s work regarding tax regulatory practices when it invalidated the regulations on State Farm grounds. The Ninth Circuit Court of Appeals reversed the Tax Court’s decision but did not dispute the applicability of the State Farm standard. In reporting the Supreme Court’s denial of certiorari in the case, the article quoted Prof. Hickman as observing that, irrespective of the outcome, the case stands for the proposition that the courts will evaluate tax regulations using the same administrative law standards as apply to other agencies, and as a result, “[t]he IRS and Treasury will need to be more thorough in drafting their regulatory preambles to explain the choices that they are making when they are exercising discretion.”
Prof. Orfield Quoted in Time Magazine About Increased Segregation in Housing and Schools and Its Impact on Social UnrestJune 19, 2020
Professor Myron Orfield, director of the Law School’s Institute on Metropolitan Opportunity, was quoted extensively in a Time magazine article examining the impact of increased segregation in housing and schools.
June 18, 2020
For over a decade, Professor JaneAnne Murray, together with New York lawyer Janet Walsh, has organized an annual Bloomsday celebration for the Irish American Bar Association of New York—an event that pays tribute to James Joyce’s masterwork, Ulysses, and Joyce’s contribution to First Amendment jurisprudence. This year, the event went online for a “Zoomsday” celebration. The featured speaker was famed Irish journalist Frank McNally, who gave a talk on the Phoenix Park Murders of 1882, which are referred to several times in Ulysses.
McNally’s focus was the discreet memorial—a cross cut into the grass—that has marked the spot, more or less continuously, for 138 years. As McNally explains in his article in the Irish Times about the event, “[t]his tied in with the IABANY’s general theme of justice. … But it also touched on a current hot topic, the war on statues, and questions of who should and should not be commemorated.” McNally adds that based on a draft script, Murray had created “a slick PowerPoint presentation, possibly from her kitchen [ed. note: correct assumption], which [he] watched like everyone else. Anyway, it seemed to work. At one stage of the talk, I found myself thinking: this is actually interesting.”
Ex-Mayor Pete Buttigieg sent a letter, regretting his inability to attend, and praising Joyce as “the great epicist of the everyday.” The letter concludes:
It strikes me that you, who work in the law, are like novelists, at least a little bit Joycean in the sense that you spend so much time with the written word, exploring and then effectuating its concrete consequences for human affairs and individual lives. With so much change upon us—and so many changes needed from us—it is as good a time as ever to seek out new ways for words to become actions.
In addition to McNally’s talk and Mayor Buttigieg’s letter, the event featured music, song, and readings from Irish Senator David Norris and movie director, John Crowley.
June 16, 2020
Professor Jill Hasday appeared on KSTP to discuss the U.S. Supreme Court’s recent decision holding that Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sexual orientation or gender identity.
June 16, 2020
Professor Kristin Hickman was quoted in a Tax Notes article, “Treasury Response to Executive Order Could Set Up Clash With OMB,” regarding the potential response of Treasury Department and Internal Revenue Service officials to an Executive Order 13924, “Regulatory Relief to Support Economic Recovery,” issued in response to the COVID-19 public health crisis. The Executive Order instructs agency officials across the federal government to rescind, modify, or waive regulations to support economic recovery after the crisis. Although Prof. Hickman declined to specify particular actions that Treasury and the IRS could take in response to the Executive Order, she expressed the view that the agencies should be able to find additional actions to pursue, given the number and subject-matter range of Treasury and IRS rules, regulations, and requirements. She also speculated that Treasury and the IRS might choose not to respond to the Executive Order because it was not aimed at them directly.