Wednesday, July 6, 2016

Loyola Professors Enrich Supreme Court Conversation

Loyola Law School, Los Angeles professors continue to enrich the dialogue about U.S. Supreme Court jurisprudence after the court concluded its 2015 term in June with commentary on cases ranging from evidence collection and affirmative action to immigration and abortion access. Their analyses reached millions of people nationwide via such outlets as NPR, the Wall Street Journal, the Los Angeles Times, Politico, Bloomberg and more on an array of cases:


Professor Kimberly West-Faulcon, the James P. Bradley Professor of Constitutional , weighed in on the U.S. Supreme Court’s 4-3 rejection of a challenge to the affirmative action-based admissions policy of the University of Texas at Austin. West-Faulcon, a nationally recognized expert on standardized testing and reverse discrimination claims, filed an amicus brief in the case. She provided analysis to several outlets:

“Surprisingly, Facts Rule the Day in Fisher II,” SCOTUSblog, June 24, 2016
Yesterday’s decision in Fisher v. University of Texas at Austin marks the first time Justice Anthony Kennedy has ruled in favor of a racial affirmative action policy in the twenty-eight years he has served on the Supreme Court. Unwilling to sound the death knell on racial affirmative action in higher education, Kennedy ventured down a path he had never taken before. He upheld the race-conscious component of the University of Texas at Austin’s admissions policy as satisfying the stringent strict-scrutiny standard of review. Instead of siding with rejected white applicant Abigail Fisher or ruling that affirmative action is per se unconstitutional as Fisher’s lawyers contended, Kennedy upheld the policy Fisher challenged as unconstitutional despite an oft-articulated constitutional aversion to race consciousness.
“Supreme Court Upholds Use of Affirmative Action at Universities,” Los Angeles TImes, June 23, 2016
“This is momentous,” said Kimberly West-Faulcon, a law professor at the Loyola Law School in Los Angeles. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse. This is a significant departure.”
“Scholars: Fisher Decision Gives Colleges ‘Breathing Room’ to Consider Race in Admissions,” Diverse Issues in Higher Education, June 23, 2016
Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School in Los Angeles, said Kennedy’s decision represents a “significant departure” from his previous decisions in affirmative action cases.“This is momentous,” West-Faulcon said. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse.“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date,” West-Faulcon continued, referring to Kennedy’s votes against affirmative action policies in two higher education cases — Grutter and Gratz — as well as other cases.


Professor Jessica Levinson, who teaches Laws of the Political Process and Money, Politics & the Supreme Court, opined on the Supreme Court’s vacating of the political corruption conviction of former Virginia Gov. Bob McDonnell. Her commentary appeared in several stories:

“Politics As Usual Is Not Illegal,” Sacramento Bee (Op-Ed), June 28, 2016
As a result of the court’s opinion, plenty of really disgusting behavior, like that of McDonnell, is now legal. This is because the court significantly narrowed the types of behavior that are impermissible under the federal bribery statutes by reading the term “official acts” as requiring more than “merely arranging a meeting, attending an event, hosting a reception, or making a speech.” Instead, in order to be found guilty anofficial must “make a decision or take an action on (an) action or matter.”
“Supreme Court Throws Out Corruption Conviction of Ex-Virginia Gov. Bob McDonnell,” Wall Street Journal, June 27, 2016
The decision “kind of blesses a lot of activities that are problematic,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “If I were a prosecutor, I would be more circumspect.”
“McDonnell Ruling a Big Blow to Corruption Law,” Politico, June 27, 2016
"It allows for a great deal of activity that really sidelines the average person who can't give a Rolex, a Ferrari or throw a wedding for someone," said Loyola Law School professor Jessica Levinson. "It essentially acknowledges that business as usual in political means money talks really loudly."

SUPREME COURT COMPOSITION: Effects of Scalia’s absence on court’s jurisprudence

Professor Allan Ides, the Christopher N. May Professor of Law and a former clerk to U.S. Supreme Court Associate Justice Byron White, deconstructed how the alterered Supreme Court composition affected case outcomes.

“How a Bench of 8 Justices Changes Supreme Court Decisions,” KPCC-FM’s Take Two, June 24, 2016
Professor Allan Ides discusses the effects of Associate Justice Antonin Scalia’s death on the Supreme Court at it wraps up its 2015 term.

“Supreme Court Limps to Finish,” The Hill, June 26, 2016
“For run of the mill cases this is having no effect, but the high-profile cases — Friedrichs, the contraceptive case, immigration — it has had an impact and you can see it where the court has been unable to resolve the case or tried to find some gimmick to send it back to the lower court,” Allan Ides, a professor of law at Loyola Law School in Los Angeles, said about the impact of a short-handed court."


The co-directors of the Loyola Immigrant Justice Clinic – alumnae Marissa Montes and Emily Robinson – were go-to sources of commentary on the Supreme Court’s opinion in U.S. v. Texas, which struck down President Obama’s executive action on immigration, Deferred Action for Parents of Americans (DAPA).

“Deadlocked Supreme Court Fails To Revive Obama's Immigration Plan,” NPR, June 24, 2016
Marissa Montes, Co-Director of Loyola Law School, Los Angeles’ Immigrant Justice Clinic, joins Morning Edition to discuss the Supreme Court's tie vote, which blocked an attempt to help millions of unauthorized immigrant families. The case goes back to the court of a conservative federal judge in Texas.
“After Supreme Court Deadlock on Immigration, What's Next?” Dallas Morning News, June 24, 2016
"We would be naive to think he is going to side with the immigrant advocates in this country who want protections," Emily Robinson, co-director of the Loyola Immigrant Justice Clinic in Los Angeles, said in an interview Friday.


The Supreme Court opinion in Utah v. Strieff allows into court evidence found during an unlawful stop if the suspect was later found to have an outstanding warrant. Loyola professors opined on the impact of this decision in several stories:

“Illegal Evidence Allowed in Court,” Bloomberg Law, June 20, 2016
Professor Laurie Levenson, the David W. Burcham Professor of Ethical Advocacy, analyzed for Bloomberg BNA the Supreme Court opinion that On why this type of evidence is not considered fruit of the poisonous tree: “The court was using the Attenuation Doctrine. It’s never been used before in this situation,” said Levenson. “ The only thing you had here intervening was the arreseting officer finding an outstanding warrant.”

“Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police,” Summary Judgments, June 21, 2016
Professor Eric Miller, who teaches Criminal Procedure and related cased, assessed the impact of the Supreme Court’s decision in Utah v. Strieff, which opened the door for police evidence to be presented in court even when obtained without a search warrant and without initial probable cause. His commentary appeared on the Summary Judgments faculty blog, “The police can now target high-crime neighborhoods in which individuals have greater likelihood of warrants and engage in random stops with virtual impunity. In a city like Ferguson, Missouri, where the number of outstanding warrants is larger than the number of citizens, the right to avoid the police is a chimera.”

Miller's commentary was featured on SCOTUSblog.

O’Bannon v. NCAA: Antitrust case In which Athletes Seek Payment for Likenesses in Videogame

Professor Jennifer Rothman has closely followed the case of O’Bannon v. NCAA, a case in which NCAA athletes are seeking payment for the use of their likenesses in a videogame. The case involves right of publicity issues – an area on which Professor Jennifer Rothman, Joseph Scott Fellow, is a nationally renowned expert. Rothman runs Rothman’s Roadmap to the Right of Publicity. Her filing of an amicus brief to the Supreme Court received coverage:

DC Antitrust Group, Law Profs Back NCAA's O'Bannon Appeal,” Law 360, June 17, 2016
Another brief from 28 legal scholars, dated Monday, focused on what the professors described as a problem with the Ninth Circuit’s First Amendment analysis. The 28 law professors are represented by Eugene Volokh of the UCLA School of Law and Jennifer E. Rothman of Loyola Law School, Los Angeles.

LIABILITY UNDER FALSE CLAIMS ACT: Universal Health Services, Inc. v. United States ex rel. Escobar

Professor Paul T. Hayden's book, "The Law of Torts," is cited in the U.S. Supreme Court's opinion turning on when liability arises under the False Claims Act.
[Excerpt from the opinion]
We need not resolve whether all claims for payment implicitly represent that the billing party is legally entitled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying information—can be actionable misrepresentations. A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674 (1931) (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase.” Ibid. Likewise, an applicant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)).

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