Professor David Driesen writes on the recent SCOTUS ruling in Sackett v. EPA

In Professor David Driesen’s post at the Center for Progressive Reform, he writes “Confronted with Justice Brett Kavanaugh’s argument that the dictionary definition of the term “adjacent” includes things that are nearby but not connected, Justice Samuel Alito invoked an increasingly used device to avoid following the plain language of statutes demanding broad regulation to meet public goals — a presumption against alteration of the status quo that existed before the passage of legislation. 

Professor Nina Kohn Writes on Protecting the Voting Rights of Long-term Care Facility Residents

Writing at the American Society on Aging’s Generations Today digital publication, David M. Levy Professor of Law Nina Kohn discusses the need to protect the voting rights of residents of long-term care facilities. In the article, Voters Live Here: Understanding the Voting Rights and Needs of Long-term Care Residents, Kohn covers common barriers, legal protections, and how care facility staff can help.

“Whether long-term care residents can vote is not a trivial issue. Voting is a fundamental right, a powerful symbol of membership in the community, and can be an important source of self-worth. The right to vote also provides long-term care residents with an important opportunity to defend their interests—interests that are often pushed to the wayside. Moreover, long-term care residents’ votes could be decisive in critical races,” Kohn concludes.

Professor Nina Kohn Co-authors Guardianship Expert Opinion Article at Bloomberg Tax

Professor Nina Kohn has co-authored the expert opinion article “Modern Laws and Out-of-Court Solutions Can Advance Guardianship” at Bloomberg Tax Law.

Robert Dinerstein, American University Washington College of Law; Deborah Enix-Ross, American Bar Association, and Ellie Lanier, University of Georgia School of Law are co-authors of the article.

In her portion of the article, Professor Kohn discusses the need to increase court resources and reform at the legislative level to acknowledge the voices and rights of those served.

“Each of us has the potential to become a person subject to guardianship. Each of us has the potential to find a loved one entrapped in the guardianship system. It’s time to contact elected representatives and demand guardianship reform,” Kohn concludes.

Vice Dean Keith Bybee Speaks About the Supreme Court’s Affirmative Action Case in the Daily Orange 

Vice Dean Keith Bybee

Syracuse University plans to continue to pursue diversity and equitable admissions through recruitment in the case the Supreme Court bans affirmative action in college admissions, an SU spokesperson told The Daily Orange in a written statement. The Court heard arguments in early November for two cases against Harvard College and the University of North Carolina, questioning the use of affirmative action and race consideration in admissions processes.

Vice Dean Keith Bybee said the implications of the court’s decisions, which will likely come in June 2023, will differ based on the court’s arguments. He said the court could decide to interpret the Equal Protection Clause and Title VI in the same way, or interpret and apply them differently. 

“You can think of this like a table with rows and columns. It depends what box we land in,” Bybee said. “How do we understand the language in this statute? Are we going to interpret it in such a way that allows for affirmative action or extremely restricted circumstances, or are we interpreting in some way that it’s a across the board prohibition on the use of race and ethnicity?”

Professor Roy Gutterman L’00 Discusses Dominion Voting Systems Defamation Lawsuit with Yahoo! News 

Professor Roy Gutterman, a white man with brown and gray hair, wearing a white collared shirt, smiles in front of a black background.

Election software company Dominion Voting Systems last year filed multiple defamation lawsuits against conservative news outlets, alleging the networks had parroted false claims that Dominion had switched millions of votes from Donald Trump to Joe Biden. The eight defamation lawsuits are against various organizations and individuals including Fox News, Newsmax, One America News Network and attorneys Rudy Giuliani and Sidney Powell.

“Live news is challenging,” said Professor Roy Gutterman L’00, Director of the Tully Center for Free Speech, in an article by Yahoo! News. “If this case ends up going in the plaintiff’s side, I think news organizations that do live broadcasts might want to be careful with the things that they put on the air.”

In order to win its cases, Dominion must prove actual malice and show the news organizations knowingly or recklessly disregarded the truth.

Vice Dean Keith Bybee Speaks About the Future of Biden’s Federal Court Legacy at Law 360 

Vice Dean Keith Bybee

A hallmark of the 80 federal judges confirmed so far during President Joe Biden’s time in office is their diversity, both demographically and in career background. That imprint could change if Republicans take control of the U.S. Senate in the midterm elections this week.

According to Vice Dean Keith Bybee in this Law 360 article, “the outcome of the midterm elections is critical. Should Republicans take control of the Senate, we can expect a burst of confirmations to follow in the lame-duck Congress following the election, but then I think you would see Biden’s confirmations in a Republican-controlled Senate grind to a halt.”

Resistance from Republicans to nominees with different career backgrounds than previous federal judicial nominees, such as public defenders, is likely to change the types of nominees if the Senate flips, experts say.

University Professor David Driesen Writes “How the 14th Amendment can reinforce the Jan. 6 committee’s Trump subpoena”

Professor David Driesen

In an opinion piece for The Hill, University Professor David Driesen writes “How the 14th Amendment can reinforce the Jan. 6 committee’s Trump subpoena.” 

On Oct. 13, the Jan. 6 committee voted to subpoena former President Donald Trump. In a previous subpoena of Trump in 2019 to obtain tax returns and information about his financial life, the Supreme Court held that Congress must justify a subpoena of a president’s information as serving a legislative purpose.  The court suggested that the congressional subpoena power might serve as a tool for harassing the president, which it needed to reign in.  

According to Driesen, the committee can greatly increase its chances of having the Supreme Court uphold the current subpoena if it justifies the subpoena as informing the congressional exercise of its power to exclude from office those who participate in or aid an insurrection under the 14th Amendment. 

David Crane L’80 Speaks to AP News About Russian Profits from Stolen Ukrainian Grain 

An investigation by The Associated Press and the PBS series “Frontline” has found the Laodicea, owned by Syria, is part of a sophisticated Russian-run smuggling operation that has used falsified manifests and seaborne subterfuge to steal Ukrainian grain worth at least $530 million — cash that has helped feed President Vladimir Putin’s war machine.

The Russian military has also attacked farms, grain silos and shipping facilities still under Ukrainian control with artillery and air strikes, destroying food, driving up prices and reducing the flow of grain from a country long known as the breadbasket of Europe. 

The Russians “have an absolute obligation to ensure that civilians are cared for and to not deprive them their ability of a livelihood and an ability to feed themselves,” said Distinguished Scholar in Residence David Crane L’80, a veteran prosecutor who has been involved in numerous international war crime investigations. “It’s just pure pillaging and looting, and that is also an actionable offense under international military law.”

Roy Gutterman Speaks About Defamation Cases and the Ruling Against Infowars Host Alex Jones in the Grid 

Professor Roy Gutterman, a white man with brown and gray hair, wearing a white collared shirt, smiles in front of a black background.

The jury in a defamation lawsuit against Infowars Host Alex Jones has ordered him to pay $965 million in damages for what the plaintiffs’ attorney described as “defamation on a historic scale.” Once attorney fees are determined, Jones will owe more than $1 billion in lawsuits stemming from his broadcasts and public statements peddling lies about the shooting deaths of 20 children and six adults at Sandy Hook Elementary School in Newtown, Connecticut, in 2012. Jones claimed for years that the massacre was a false flag staged by the government. 

According to Professor Roy Gutterman L’00, Director of the Tully Center for Free Speech, these lawsuits may open the door for future victims of misinformation-based harassment to turn to the courts for relief.

“Most defamation cases really focus on an individual plaintiff,” said Gutterman. “So, in some ways, these lawsuits against Alex Jones and Infowars are kind of a novel way to rein in this new genre of conspiracy theory-related information.”

Professor Emeritus William Banks Provides Input to AP News on Debunked January 6 Claim About Former President Donald Trump 

Professor William Banks, a white man white short white hair, wearing a brown suit jacket over a white collared shirt, smiles.

In a round-up of popular, but untrue, stories for the week, AP News debunks the claim that former President Donald Trump signed an order to deploy 20,000 National Guard troops before his supporters stormed the U.S. Capitol on Jan. 6, 2021, but was stopped by the House sergeant at arms, at the behest of Speaker Nancy Pelosi.

Professor Emeritus William Banks explained that guard troops are generally controlled by governors, though they can be federalized. The claims “make no sense at all,” Banks added. “The House sergeant at arms, he or she is not in the chain of command. Nor is Nancy Pelosi.” 

While Trump was involved in discussions in the days prior to Jan. 6 about the National Guard response, he issued no such order before or during the rioting.