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:
AFFIRMATIVE ACTION: FISHER v. UNIVERSITY OF TEXAS AT AUSTIN
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.
POLITICAL CORRUPTION: McDonnell v. U.S.
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."
IMMIGRATION: U.S. v. Texas
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.
EVIDENCE COLLECTION: UTAH v. STRIEFF
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)).
Loyola Immigrant Justice Clinic Co-Director Emily Robinson '12 submitted a letter on behalf of immigration professors and clinicians related to the Senate Committee on the Judiciary Subcommittee on Border Security and Immigration prior to their April 18, 2018 hearing "Strengthening and Reforming America’s Immigration Court System."
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