TORTS TODAY - course materials & news for Torts, Business Torts, Product Liability, and Remedies students of George Conk at Fordham Law School gconk@law.fordham.edu
Friday, March 12, 2021
Thursday, March 11, 2021
Migrant Protection Program and public charge rule - archive
Justices allow Alabama to restore ban on curbside voting Otherwise blog
****On January 21 the Biden administration suspended enrollment in the `Migrant Protection program' through which the previous administration had returned 68,700 people to Mexico. Announcing intentions to work to resolve the matter the Biden administration asked that briefing be suspended and the matter removed from the argument calendar.***
READ Torts Today blogpost, order denying stay by Ninth Circuit, Sotomayor dissent and Millhiser discussion of nationwide injunctions linked in blogpost.
The Trump public charge rule
USCIS retracts public charge rule enforcement - March 10, 2021
READ blog post re Doe v. Trump: 9th Circuit (2-1) rejects District Court injunction against Trump Proclamation regarding "public charge" rule.
Where would you fall: with the Doe majority or the dissent by Judge Tashima? The Cook County majority or the Barrett dissent?
What are the Biden administration's options here?
Wednesday, March 10, 2021
Chief Justice John Roberts Breaks With Justices, Calls Them 'Advice Columnists' : NPR
Chief Justice John Roberts Breaks With Justices, Calls Them 'Advice Columnists' : NPR
by Nina Totenberg - NPR
"Nominal damages are not a consolation prize," Justice Clarence Thomas wrote for the court majority. "Despite being small, nominal damages are certainly concrete. ... a person who is awarded nominal damages receives 'relief on the merits of his claim.' "
In his dissent, Roberts noted that there "are just a few problems" with the students' desire to continue their lawsuit.
"The challenged restrictions no longer exist," he said. "And [the students] have not alleged actual damages."
The case, he added, is therefore moot because there is no live pending legal question.
Cases testing Trump’s “public charge” immigration rule are dismissed - SCOTUSblog
Cases testing Trump’s “public charge” immigration rule are dismissed - SCOTUSblog
Amy Barrett voted the wrong way on these cases when she was on the 7th Circuit.
The Supreme Court Needs to Show Its Work - The Atlantic
The Supreme Court Needs to Show Its Work - The Atlantic
By Stephen I. Vladeck (U Texas - Austin )
For an institution whose legitimacy depends largely on the public’s perception of its integrity, the growth of unseen, unsigned, and unexplained decisions can only be a bad thing.
Tuesday, March 9, 2021
Congress's Article III Power and the Process of Constitutional Change by Christopher Jon Sprigman :: SSRN
Congress's Article III Power and the Process of Constitutional Change by Christopher Jon Sprigman :: SSRN
Abstract
Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that has how the power has historically been understood.
Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which Supreme Court has never spoken definitively.
In this Article, I argue that Congress’s Article III power can be understood as a means by which Congress may change the Constitution without amending it. I argue, further, that we should welcome it as such. Working through the ordinary legislative process, Congress may remove the jurisdiction of federal courts to hear cases involving most questions of federal law, including cases that raise questions under the federal Constitution. To be clear, I am not arguing that the Constitution unambiguously establishes this congressional power. As on so many important issues, the Constitution is indeterminate: Article III provides a textual foundation for the power, and neither history nor precedent rule it out. In this matter, however, what Congress does is more important than anything the Constitution says. The Constitution’s indeterminacy opens a space for Congress to reclaim authority, in particular cases, over constitutional interpretation. If a determined Congress acts to fill that space, courts will have little power to resist. Correction, if it comes at all, will come from voters.
Understood this way, the implications of Congress’s Article III power are potentially transformative. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation. In either case, Congress may remove the jurisdiction of federal courts to hear constitutional challenges to its interventions. And Congress may do the same with respect to state courts.
To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.
Keywords: constitutional law, constitutionalism, democracy, judicial review, federal courts
Sprigman, Christopher Jon, Congress's Article III Power and the Process of Constitutional Change (August 8, 2020). New York University Law Review, Vol. 95, No. 6, 2020, Available at SSRN: https://ssrn.com/abstract=3669954
Hernandez v. Mesa: Questions Answered and Questions Avoided by Andrew Kent :: SSRN
Hernandez v. Mesa: Questions Answered and Questions Avoided by Andrew Kent :: SSRN
Abstract
In Hernandez v. Mesa (2020), the Supreme Court for the second time considered a tragic case involving the June 2010 death of Sergio Hernández Güereca, a fifteen year-old Mexican national. Sergio was killed on the Mexican side of the border with the United States, shot by U.S. Border Patrol Agent Jesus Mesa, who was standing in Texas when he fired. The Court granted certiorari to decide whether the Hernandez family could pursue a constitutional tort claim against Agent Mesa under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
This Essay reviews the history of the Court’s Bivens jurisprudence, and analyzes the Court’s stated reasons for declining to recognize a Bivens cause of action and remedy in Hernandez v. Mesa. Then the Essay explores some of the issues that were clarified by the Court and some important issues that the Court ignored or avoided.
The Court’s decision confirmed that a majority of the justices are willing to reject a Bivens cause of action even if it leaves a plaintiff with no means of judicial redress for plausibly alleged constitutional injuries. The Court also signaled that Bivens is likely to be confined going forward to the precise contexts and constitutional provisions recognized in the original Bivens case (Fourth Amendment search and seizure in an ordinary law enforcement context) and two follow-on decisions also written by Justice William Brennan, one concerning Eighth Amendment claims against federal prison officials and the other concerning employment discrimination in violation of the equal protection aspect of the Fifth Amendment Due Process Clause. But the majority of the Court declined the suggestion of Justices Clarence Thomas and Neil Gorsuch to overrule Bivens entirely.
The Essay next discusses an important issue on which the Court declined to grant certiorari: whether, if Bivens is not available, Congress’s Westfall Act is unconstitutional insofar as it bars previously available state law tort claims and thereby leaves no means of judicial redress for personal injuries historically protected by the common law. Also discussed is the Court’s seeming reluctance in Hernandez v. Mesa to address whether the Constitution provides extraterritorial protection to noncitizens. The Essay concludes with discussions of two key issues the Court has not addressed in Hernandez v. Mesa or other Bivens decisions: (1) Why are injunctions for ongoing or threatened constitutional wrongs treated as presumptively available, even in the absence of clear statutory authorization, while Bivens damages remedies are treated as presumptively disfavored? (2) Why do the same justices who abhor judicial lawmaking under Bivens and in the context of implying rights of action to enforce statutes nevertheless embrace judicial creation of substantive rules of federal common law governing the primary conduct of private persons and government officials?
Keywords: Bivens, Constitutional Torts, Remedies, Westfall Act, Ubi Jus Ibi Remedium, Federal Common Law, Extraterritoriality
Kent, Andrew, Hernandez v. Mesa: Questions Answered and Questions Avoided (December 28, 2020). American Constitution Society Supreme Court Review 2019-2020, Fordham Law Legal Studies Research Paper No. 3756400, Available at SSRN: https://ssrn.com/abstract=3756400
Friday, March 5, 2021
Challenges for Black Workers After 2020: Antiracism in the Gig Economy? by Michael C. Duff :: SSRN
Challenges for Black Workers After 2020: Antiracism in the Gig Economy? by Michael C. Duff :: SSRN
Abstract
Black workers’ fortunes in the coming decades are tied to the expansion of the Gig economy, the impact of which is to destroy employee status. Because much antiracism law and policy has been transmitted to society through the medium of employment law, the disappearance of employee status should be of concern to all foes of racism. This short essay argues that Section 1981 of the Civil Rights Act of 1866 should be expanded to cover all forms of racist workplace conduct. Regulatory arbitrage will continue to challenge the definition of employment for the foreseeable future. It is fitting that one of the great antiracist laws in the history of the United States be modified to cut through the haze, ensuring that Black workers have remedies for racist workplace conduct, however the workplace may be fortuitously or strategically defined, now or in the future. Acceptable, but not quite as good, alternatives to expanding Section 1981 are to explicitly cover independent contractors with existing antiracist employment law (such as Title VII of the Civil Rights Act of 1964); or to embrace the “ABC” employment test, which makes it much more difficult for employers to inappropriately classify employees (entitled to the protections of antiracist and other employment laws) as independent contractors (who are not entitled to those protections).
Keywords: Gig economy, Title VII, Antiracism, employee status, Proposition 22, independent contractor
Duff, Michael C., Challenges for Black Workers After 2020: Antiracism in the Gig Economy? (February 23, 2021). Available at SSRN: https://ssrn.com/abstract=3791758 or http://dx.doi.org/10.2139/ssrn.3791758
Wednesday, March 3, 2021
Eric Segall: Institutional Racism, Affirmative Action, and Judicial Hubris: Part I Dorf on Law
OTHERWISE: Eric Segall: Institutional Racism, Affirmative Action, and Judicial Hubris: Part I Dorf on Law
The pernicious and negative consequences of centuries of slavery, segregation, and formalized legal racial discrimination are still all around us. As I detailed here, institutional racism pervades our schools, police forces, governmental institutions, neighborhoods, and even our private markets. In my lifetime, just a few blocks from the law school where I teach, a hotel went to the Supreme Court arguing for the right to discriminate against people of color despite a federal statute prohibiting the same. Today, GOP legislatures in well over half the states are trying to deter people of color from voting. Just yesterday, the Court heard oral arguments in such a case
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