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.
Prof. Frase Quoted in Newsweek Article Examining Potential Legal Arguments in Case Brought Against Four Former Police Officers Charged in the Tragic Killing of George FloydJune 10, 2020
Professor Richard Frase was quoted in a Newsweek article examining charges brought against four former Minneapolis police officers involved in the killing of George Floyd. Professor Frase noted that Minnesota’s second degree felony murder law is one of the broadest in the country, and that this charge—based on intentional felony assault—also made it easier to charge the other three officers as accomplices. The other murder and manslaughter charges that were filed do not require proof of any intent to cause bodily harm, and thus raise a classic criminal law conundrum: can a person intentionally aid and abet an unintentional crime? But, Frase further noted, even under the felony murder charge one of the other officers may have a defense. Although Officer Lane’s repeated requests to turn Floyd on his side shows that Lane was aware of the seriousness of the risk to Floyd’s safety, those requests could also be seen as a reasonable effort (given Lane’s junior-officer status) to prevent the knee-on-the-neck assault on Floyd by veteran officer Chauvin.
June 8, 2020
Prof. Kristin Hickman was quoted in a Bloomberg Tax article, “Rule-Writing Scrutiny Pushes Tax Officials to Explain Themselves,” documenting the Treasury Department’s recent trend of providing more extensive explanations of its tax policy choices in preambles to new regulations interpreting the tax code. Quoting Prof. Hickman among others, the article attributed the trend to a combination of increased court challenges to tax regulations under the Administrative Procedure Act (APA) and recent efforts by the Office of Information and Regulatory Affairs (OIRA) to review tax regulatory actions. Prof. Hickman has written extensively about the need for greater Treasury Department compliance with the APA, and Prof. Hickman served as Special Adviser to the Administrator from OIRA in 2018-19, helping the agency as it started reviewing tax regulations for the first time.
June 7, 2020
Professor Alan Rozenshtein was quoted in the Star Tribune about the U.S. Customs and Border Protection agency’s use of a Predator surveillance drone to monitor protests in the Minneapolis connected to the death of George Floyd. He noted the difficulties in governing the use of new technology by law enforcement: “It raises these hard questions of how effective do we want law enforcement to be and what is the cost of that effectiveness,” he said. “Every day we are getting closer and closer to a decision point on that.”