Tuesday, February 28, 2023

In a pair of challenges to student-debt relief, big questions about agency authority and the right to sue - SCOTUSblog

In a pair of challenges to student-debt relief, big questions about agency authority and the right to sue - SCOTUSblog

In a pair of challenges to student-debt relief, big questions about agency authority and the right to sue

ducation Secretary Miguel Cardona in August 2022, before delivering remarks on the student-loan forgiveness plan. (Adam Schultz via The White House)

While campaigning for president in 2020, then-candidate Joe Biden pledged to cancel at least $10,000 in federal student-loan debt for each borrower. More than two years later, Biden announced a debt-relief program that would forgive up to $20,000 in loans for borrowers who qualify. On Feb. 28, the Supreme Court will hear oral arguments in a pair of challenges to the program.

With a price tag for the program estimated at $400 billion, the justices’ ruling will obviously have a significant practical and economic effect. But the court’s decision could also have a legal impact well beyond this case, as the justices weigh issues such as when states can go to court to contest federal policies and how courts should interpret laws giving power to federal agencies.

Loan relief, the HEROES Act, and the path to the Supreme Court

When the justices hear arguments later this month, student-loan repayments will have been on hold for nearly three years. At the start of the COVID-19 pandemic in March 2020, then-Secretary of Education Betsy DeVos suspended both repayments and the accrual of interest on federal student loans. She relied on the HEROES Act, a law passed after the Sept. 11 attacks that gives the secretary of education the power to respond to a “national emergency” by “waiv[ing] or modify[ing] any statutory or regulatory provision” governing the student-loan programs so that borrowers are not “placed in a worse position financially” because of the national emergency.

Both the Trump administration and the Biden administration later extended the original repayment pause. In August 2022, the Biden administration announced both that it would end the pause and that it would cancel up to $10,000 in federal loans for borrowers who meet income limits; borrowers who also received Pell Grants, which are available for undergraduate students from low-income families, can have up to $20,000 in federal loans canceled. Again relying on the HEROES Act, Secretary of Education Miguel Cardona explained that the program was a response to the economic effects of the pandemic and would provide relief to borrowers who are more likely to default on their loan repayments because of the pandemic.

Two different challenges to the debt-relief program are now before the Supreme Court. The first case, Biden v. Nebraska, was filed by six states with Republican attorneys general. They argued that the HEROES Act does not give the secretary of education the power to implement the debt-relief program

Tuesday, June 7, 2022

Coalition of Leaders of Jesuit Institutions Calls For End to Expulsions of Asylum Seekers Under Title 42 | Georgetown Law

Coalition of Leaders of Jesuit Institutions Calls For End to Expulsions of Asylum Seekers Under Title 42 | Georgetown Law

WASHINGTON – A group of leaders at 14 Jesuit law and immigrant advocacy institutions sent a joint letter Wednesday to President Joseph R. Biden and key members of his administration, issuing an urgent call to end the use of the Title 42 Public Health Order, an immigrant expulsion policy put into effect by the Trump administration at the height of the COVID-19 pandemic.

The letter, signed by a number of Jesuit law school deans, Jesuit Refugee Service/USA and the Border Justice Initiative at Gonzaga Law School, states that the “policy is unlawful, dangerous, and inflicts profound suffering on extremely vulnerable people” and that there is “no present public health justification for its continuation.”

In the two years since the legal provision’s enactment, Title 42 has been used to expel more than 1 million people seeking humanitarian protection at the U.S.-Mexico border. Now that most public health mandates related to COVID-19 have been lifted in the United States, the signatories hold that Title 42 should end as well.

“Grounded by our Jesuit mission, I feel a deep responsibility to stand up for the dignity and inherent rights of any displaced person. All asylum-seekers deserve a compassionate response. I hope that our collective voices against this misguided policy will inspire our leaders to enact change in support of lifting the Order for all those seeking protection at our border,” said Georgetown Law Dean William M. Treanor.

“Jesuit law schools have long defended the due process rights of asylum seekers, especially at the U.S. / Mexico border. Our programs and centers promote rule of law principles and provide access to justice for those seeking humanitarian protections, many of whom are Black and brown people fleeing persecution from around the world. I am proud to lend my name to this statement and encourage our government leaders to revoke the Title 42 Order and ensure the principles being championed by the Biden administration at this historic moment are reflected abroad and at home,” said Fordham Law School Dean Matthew Diller.

Treanor and Diller join 10 other law school deans as signatories expressing their urgent concern about the Biden administration’s continued use of the Title 42 Public Health Order to expel migrants and asylum seekers.

“JRS stands in partnership with our fellow Jesuit institutions in calling on the Administration to restore the legal right to seek asylum for all of our brothers and sisters seeking safety. We witness the impact of this harmful policy among asylum seekers at the U.S. southern border whose fate and security continue to be unknown. The U.S. must rescind Title 42 immediately so that no one is denied the right to seek protection,” said Jesuit Refugee Service/USA Director of Advocacy & Operations Giulia McPherson.

View the full letter.


Georgetown Law Me

Saturday, May 21, 2022

Foundations of Tort Law: SEO 2023

 Foundations of Tort Law - SEO 2023 


American Law Institute - The Restatements of the Law

Restatement of Torts, 3rd 

Basic Principles 

 Intentional Torts [BLACK Letter]

Torts Remedies - black letter (pdf)


Economic Loss Rule

Aikens v. Debow, 208 W. Va. 486 (2000)

Law School case brief

Assault & Battery

Brooker v. Silverthorne, 111 S.C. 553 (1919)

Law School case brief

Would defendant be liable for assault under the Third Restatement of Torts?

§ 5. Assault (T.D. No. 4) (approved 2019)

An actor is subject to liability to another for assault if:

(a) (i) the actor intends to cause the other to anticipate an imminent,

and harmful or offensive, contact with his or her person, or

(ii) the actor’s intent is sufficient under § 11 (transferred intent);


(b) the actor’s affirmative conduct causes the other to anticipate an

imminent, and harmful or offensive, contact with his or her person.

Haeussler v. De Loretto,109 Cal App 2d 363 (1952)

Law School case brief

Appeal from a judgment in favor of defendant. Judgment affirmed.

“ One who is involved in an altercation with another has the right to use such force as is necessary to protect himself from bodily injury, and the question of the amount of force justifiable under the circumstances is one for the trier of fact.”

Is this the Kyle Rittenhouse defense? Does that invalidate the principle?

Katko v. Briney , 183 NW 2d 657 (Iowa 1971)


Quimbee case summary

Spring gun in vacant boarded up farmhouse seriously injures plaintiff

plaintiff and companion broke in to find old bottles to sell as antiques.

Verdict: $20,000 compensatory, $10,000 punitive or exemplary

Do you agree with Judge Larson in dissent?

"I would hold the award of $10,000 to plaintiff is void.

 We cannot in good conscience ignore the conduct of the plaintiff.  He does not come into the court with clean hands."

Koffman v Garnett, 266 Va. 12 (2003)

Quimbee video and Case summary

Appeal from grant of a Motion for judgment as a matter of law in favor of defendant football coach.

Reversed as to gross negligence, affirmed as to assault, and reversed as to battery.

Could a jury reasonably conclude that the coach was reckless as defined in the Restatement of Torts 3rd?

                   § 2 Recklessness

                      A person acts recklessly in engaging in conduct if:

     (a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation, and

     (b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.

 Or, per Virginia law: 

        "that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of another; such a degree thas wwould shock the fair-minded although something less than willful recklessness"

Did Andrew Garnett - by joining a tackle football team - give actual consent to the Coach's demonstration of how to tackle?  Use Draft Restatement 3rd: Intentional Torts:

§ 14. Actual Consent: Scope Conditions (T.D. No. 4) (approved 2019)

(a)  A  person’s  actual  consent  extends  to  conduct  of  the  actor  that  is  not substantially different in nature from the conduct that the person is willing to permit.

(b) If a person places a condition upon his or her actual consent that limits the consent with respect to time, area, or otherwise, the consent is legally effective only within the limits of the condition.

Leffler v. Sharp891 So 2d 152 (2005)

Law School case brief

Appeal from summary judgment dismissing plaintiff's complaint on ground he was a trespasser. on the roof of a party venue.

Compare California Civil Instructons: Premises Liability Section 1004, et seq.


Three common law categories of strangers coming onto land:

an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage . . . A licensee is one who enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another's premises without license, invitation, or other right." 

An invitee is owed the duty of keeping he premises reasonably safe and to warn of hidden dangers; licensees enter with permission, and both licensees and trespassers are owed the duty to "refrain from willfully or wantonly inuring them"

 What was Leffler's status when he entered?  When he fell?

Why are different categories of entrants on land treated differently?

Tarasoff v. Regents of University of California, 17 Cal. 3d 425 (1976)

Why wasn't it enough, in the Curt's view, that Dr. Moore reported Poddar's threat to kill Tatiana Tarasoff to the UC Berkeley campus police?
Why does the court impose an obligation to notify the potential victim? Doesn't that destroy the confidentiality which is an essential part of the psychotherapist-patient relationship?

Vetter  v. Morgan, 22 Kan App. 2d 1

Would Morgan be liable for assault under the Restatement 3rd, Intentional Torts?
§ 5. Assault (T.D. No. 4) (approved 2019)
An actor is subject to liability to another for assault if:
(a) (i) the actor intends to cause the other to anticipate an imminent,
and harmful or offensive, contact with his or her person, or
(ii) the actor’s intent is sufficient under § 11 (transferred intent);
(b) the actor’s affirmative conduct causes the other to anticipate an
imminent, and harmful or offensive, contact with his or her person.

Why would plaintiff press a theory of negligence, rather than intentional harm - which might support a verdict of punitive damages?

The court holds that such horseplay  and intentional rude pranks may be treated as negligence, because such behavior created "a risk that the victim's reaction may cause harm." 

Restatement Torts 2d 303, cmt e provides:

e.  It is common experience that a sudden fright or shock is likely to cause the person subjected to it to react to it instinctively without regard to the danger involved to himself or to others in his vicinity. The circumstances which the actor knows, or which he should recognize as likely to exist, may be such that he should realize that this instinctive reaction may involve risk to the bodily security of the other whom he subjects to the shock or to the bodily security of third persons. If so, he is negligent toward them if he intentionally subjects the other to such a shock or acts in a manner which he should recognize as involving an unreasonable risk of such a result. 
Why did it matter to plaintiff to establish a "joint venture"civil conspiracy?

Restatement (Second) of Torts § 876 (1977) sets out rules for tort liability of persons acting in concert.

Why does this matter to plaintiff?


"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." 

Vosburg v. Putney, 50 N.W. 403 (1891)

Quimbee animation and summary

"the wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him."

Is this a battery or an assault?

Is the result fair since the 12 year old defendant could not have known how serious an injury would result?

Wagner v. State of Utah 205 UT 54 (Utah 2005)

Law School Case Brief

Mentally disabled assailant accompanied by a state worker at a K-Mart: Non consensual contact is a battery, regardless of intent.

Sovereign immunity retained.

Conclusion: Only intent to make contact was necessary, and the attack constituted a battery. The fact that plaintiff injured party and her husband alleged that the patient could not have intended to harm her or understood that his attack would inflict injury or offense was not relevant to the analysis of whether a battery occurred. So long as the patient intended to make contact and so long as that contact was one to which the injured party had not given her consent, the patient committed a battery. Finally, battery was a tort for which the state had retained immunity pursuant to Utah Code Ann. § 63-30-10(2) (1997) (repealed 2004).

Walter v. Wal-Mart Stores, 2000 Me 63 (2000)

Law School Case Brief

Compare: NJ Model Civil Jury Charge 8.11B: Duty to Mitigate/Avoidable Consequences

Pharmacist inattentively fills prescription with wrong drug [Alkeran not Leukeran] , causing harm.

What is a "judicial admission"? Who can make such an admission?

The pharmacist admitted a "serious error".  Why then does the court deny that there has been an admission of liability as a matter of law?

What is the meaning of a judgment as a matter of law on liability?

What if anything remains for the jury if the court decides there is liability?

Avoidable Consequences - Duty to mitigate damages

What is contributory negligence?  When does it apply?

Was the patient negligent for failure to recognize the dispensing error?

What is the effect of a failure to mitigate"?

What is the "double reduction" of which the Court warns?

Saturday, February 19, 2022

Amy Coney Barrett is not being honest about what the Supreme Court is up to - Vox

Amy Coney Barrett is not being honest about what the Supreme Court is up to - Vox

The Supreme Court is not being honest with you

Justice Amy Coney Barrett appears to be quite unfamiliar with her own judicial record, and that of her colleagues.

Sunday, February 13, 2022

S.2342 - Ends Forced Arbitration of Sexual Assault and Sexual Harassment claims | Congress.gov | Library of Congress

Senator Kirsten Gillibrand with former
Fox News Anchor Gretchen Carlson

In S. 2342 
Congress has opened a substantial breach in the wall erected by the United States Supreme Court blocking access to the courts by persons seeking redress for sexual harassment or assault.  The Supreme Court has routinely enforced arbitration clauses in contracts of employment and elsewhere.  The result has been that at their election employers can block access to the courts.  Neither federal law - under Title VII of the 1964 Civil Rights Act, nor state laws against discrimination have been available under the contracts of adhesion - take it or leave it terms set by contracts of employment or company rules.  Now Congress has amended the Federal Arbitration Act and imposed similar limits on state laws.

Now the Congress has opened the courthouse doors in a measure sponsored by New York Senator Kirsten Gillibrand.  She first introduced the bill in 2017 and on Friday stood victorious side by side with former Fox News Anchor Gretchen Carlson.  The one-time Miss America had successfully sued Fox News leader Roger Ailes.

Although the National Labor Relations Act protects "concerted activity" in Epic Systems - a 2018 wage and hours law case -the Supreme Court  allowed employers as a condition of employment - to bar lawsuits arising from sexual harassment or assault.  Compulsory arbitration deprives workers of a neutral judge, trial by jury, the benefit of court-ordered discovery, and public justice.  Writing for the Court Neil Gorsuch asked
Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?

His answer was:

companies may require workers to settle employment disputes through individual arbitration rather than joining to press their complaints, a decision affecting as many as 25 million workers”

But Ruth Ginsburg, dissenting wrote:

    T]he edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. 

Though Epic Systems itself is largely untouched its embrace of "choice"  will no longer apply to sexual harassment claims.  In a major victory for employees they will no longer be forced to "consent" to arbitration of sexual harassment or assault cases.  Even courts that have sought to preserve the right to go to court have sometimes failed.  Thus in Skuse v. Pfizer a divided New Jersey Supreme Court in 2020 voted to enforce a mandatory arbitration clause compelled post-employment by the drug giant Pfizer, Inc..

- GWC 
Text - S.2342 - 117th Congress (2021-2022): Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 | Congress.gov | Library of Congress

9  U.S.C. § 401. Definitions

“In this chapter:

§ 402. No validity or enforceability

Lipton: Capital Discrimination - was SSRN bullied?

Ann Lipton, an Associate Dean at Tulane Law School, has written a very interesting article which she posted pre-publication by Houston Law Review.  But SSRN - the Elsevier owned platform which exists for such purposes - removed her article and Houston withdrew its publication commitment - when lawyers for a target of the article's criticism threatened suit in a cease and desist letter.
Tulane's lawyers responded - in a letter that IMO is a concise and correct statement of the law of defamation.  The cease and desist letter does not demonstrate such competence. I'm disturbed that Elsevier caved.

But more importantly the article addresses an interesting issue: our anti-discrimination laws don't adequately address the issue of arbitrary discrimination by those whose power is due to capital, not an employer-employee relationship. 

Previously, I announced that my paper, Capital Discriminationwould be forthcoming in the Houston Law Review, and had just been posted publicly to SSRN.  As I explained in that post, the paper explores the problem of gender discrimination against women as business owners and capital providers, and proposes changes to both statutory law and common law fiduciary duties in order to address gender-based oppression in business.

The paper itself describes several business law cases from different jurisdictions, including Shawe v. Elting, a matter very familiar to business lawyers, and which involved an acrimonious dispute in the Delaware courts.  Just before Christmas, an attorney representing Philip Shawe sent this cease and desist letter to SSRN, demanding that the paper be removed from that site as defamatory. 

On New Year’s Day, SSRN removed the paper in response to Shawe’s letter.  After that, Houston Law Review could no longer assure me that the article would run in its journal, and stated that they would not preclude me from submitting the paper for publication elsewhere.   

Tulane’s counsel has sent a response letter to SSRN in hopes of having the paper restored but for now, to ensure that the paper is not kept out of sight indefinitely, I have made a copy available at this link.  This draft of the paper includes a reference to Mr. Shawe’s defamation claims.