In the News

Professor Gregory Germain Provides Insights into Non-Disclosure Agreements Used by the International House of Prayer-Kansas City Amid Abuse Scandal

The International House of Prayer-Kansas City (IHOPKC), admits a scandal involving sexual abuse allegations against its founder, has asked staff members and volunteers to sign a Non-Disclosure Agreement (NDA) prohibiting them from talking about “information they gain access to.”

In speaking with the Kansas City Star, Professor Gregory Germain, said all states have laws recognizing a “clergy penitent privilege” that renders conversations between ministers and those they counsel inadmissible in court. The purpose, he said, is to allow pastors to provide spiritual guidance without being afraid they’ll be summoned to testify against the penitent.

One example is the confidentiality of confession, which has been subject to special confidentiality and legal protection for centuries, Germain said.

“The law, and these confidentiality traditions, are to protect the member and the free flow of information and advice between the clergy and the member, and not to cover up wrongdoing by the church administration,” he said. “There is, of course, a big difference between protecting confidential communications with members and covering up abuse or other crimes committed by the clergy or administration.”

Germain said the language in IHOPKC’s non-disclosure agreement that focuses on keeping member information confidential is consistent with the clergy penitent privilege. But the language that claims any other information that an employee or volunteer might learn, including information about other employees, he said, “seems overly broad and vague, and I suspect would be hard to enforce.”

NDAs that would prohibit workers from complying with the law, disclosing information about criminal acts to authorities, or answering questions about wrongdoing in legal proceedings, Germain said, “would likely be invalidated on public policy grounds.”

“So I don’t think they will be able to use this NDA to prevent a criminal investigation into wrongdoing or to cover up criminal acts if that’s what they are trying to do,” he said of IHOPKC. “However, it might be effective in preventing employees and volunteers from talking to the press even if the provisions were unenforceable on public policy grounds.”

The full article is behind a paywall.

Professor Gregory Germain Discusses Haitian Group’s Lawsuit Against Trump and Vance

Professor Gregory Germain spoke with Newsweek about a recent criminal complaint filed by The Haitian Bridge Alliance against Donald Trump and J.D. Vance. The Alliance claims that Haitian immigrants have received death threats after Trump said that they are stealing family pets in Springfield, OH.

“Knowledge of falsity is difficult to prove when politicians spread rumors. The Supreme Court would likely recognize that politicians have qualified immunity for lies under the First Amendment—otherwise, the bare-knuckle election process would be hampered,” says Germain. However, Germain said that highlighting Trump’s “reckless statements” may be the plaintiffs’ aim.

Professor Emeritus William Banks Discusses the Hezbollah Pager Explosion with CBC News

Professor of Law Emeritus William Banks spoke via video with CBC News on the explosion of pages amongst members of Hezbollah. He spoke about the rules of armed conflict and how they do not apply in this conflict.

“There’s no kind of a road map that tells us who can do what, who can get away with what, where this might end, how an agreement might be reached,” Banks said. “This is, of course, the broader Middle East dilemma that we are all witnessing all the time.”

While he said UN charters or NATO treaties may help regulate conflicts between states, Banks noted they don’t exist between Israel and Iran, or Israel, Hezbollah and Hamas, and therefore, “the traditional rules of armed conflict simply aren’t going to do us any good. They aren’t going to even apply in a situation like this.”

Professor Shubha Ghosh Provides Insight into Google Ad Tech Antitrust Case

Professor Shubha Ghosh, director of the Syracuse Intellectual Property Law Institute, spoke with Ars Technica about the U.S. Department of Justice’s (DOJ) monopoly trial against Google that challenges its ad tech dominance.

In terms of potential remedies sought by the DOJ, Ghosh told Ars that “if this case goes against Google as the last one did, it could set the stage for splitting it into separate search and advertising companies.”

In the DOJ’s complaint, prosecutors argued that it “is critical to restore competition in these markets by enjoining Google’s anticompetitive practices, unwinding Google’s anticompetitive acquisitions, and imposing a remedy sufficient both to deny Google the fruits of its illegal conduct and to prevent further harm to competition in the future.”

Ghosh said that undoing Google’s acquisitions could lead to Google no longer representing both advertisers’ and sellers’ interests in each ad auction—instead requiring Google to either pick a side or perhaps involve a broker.

Professor Nina Kohn Speaks with MLive on the State of Nursing Homes in Michigan

Professor Nina Kohn discussed legal aspects of nursing home licensure and patient rights with MLive for the article “Michigan used to shut down its worst nursing homes. Then it stopped.”

The article takes an extensive review of nursing homes in Michigan and how the licensing, inspection, and closure of underperforming nursing homes have changed over time.

Regarding closing underperforming nursing homes, Kohn said states have a “dormant ability to use existing state law to get the worst actors out of the system. And the thing we’ve seen is states not using their powers.”

She continued “What you’re doing when you close a nursing home that has shown it’s incapable of necessary care is you’re protecting the most vulnerable people in your community. Certainly, moving is not what most residents look forward to. It can have ramifications. But if you keep these facilities open, you’re just perpetuating the cycle of bringing in more people to be victimized.”

Kohn notes that states’ power to license nursing homes could be an effective way to get the worst companies to improve or shut down if they don’t.  “Licensure, unfortunately, in many states, has become sort of paper pushing or rubber stamp function,” she said.

The article may be behind a paywall.

“We’d Be in Uncharted Waters” Professor Greg Germain on a Possible Jail Sentence in Donald Trump Criminal Case

Professor Gregory Germain spoke with Newsweek on the September 18 sentencing of Donald Trump in the false business records criminal case. Germain believes an appeals court would strike down any prison term.

“If Judge Merchan sentenced him to jail in the middle of the election for this records violation, I think the courts would do whatever is necessary to prevent it. We’d be in uncharted waters,” he said. “But I don’t think Merchan will sentence him to jail. I think there were serious problems with the case, and it should be reversed on appeal in due order without upsetting the election cycle.”

Professor David Driesen Discusses How the SCOTUS Presidential Immunity Ruling Could Affect New Trump Indictment

University Professor David Driesen spoke with Salon for the article, “Legal scholars warn SCOTUS could “manipulate” immunity definition to torpedo new Trump indictment” relating to a new indictment Special Counsel Jack Smith has filed against Donald Trump.

“It’s not clear whether this will work because on appeal the Supreme Court can manipulate the category of official conduct to create a broader immunity covering other elements of the indictment,” says Driesen.

“The Supreme Court ruling clearly overrode longstanding constitutional norms forbidding presidents from issuing orders to investigate political opponents or to challenge election results,” he says. “The forcing of these amendments to the indictment highlights how the high court has opened the door wide to autocracy.”

Professor Shubha Ghosh Discusses Google Antitrust Ruling With Techopedia

Professor Shubha Ghosh, Director of the Syracuse Intellectual Property Law Institute, spoke with Techopedia for their article, “Can Internet Search Survive Google Antitrust Ruling?” Recently, a federal judge found that Google maintained an illegal monopoly on the internet search engine market.

Ghosh says that the ruling could lead to a point where the court would force Google to rework some of its contracts with partners.

“The ruling could help move internet search into a purer regime where search companies can finance search engines without distorting them. The court will likely move to rework contracts with vendors and advertisers. But there is only so much the court can do,” says Ghosh.

“Stuck Her Chin Out” Professor Emeritus William C. Banks on Judge Aileen Cannon Throwing Out the Donald Trump Documents Case

Special counsel John L. “Jack” Smith recently filed an appeal with the U.S. Court of Appeals for the 11th Circuit to reverse an order made by Judge Aileen Cannon that threw out the case saying the appointment of a special counsel was unconstitutional.

Speaking with Roll Call, Professor Emeritus William C. Banks said Cannon “stuck her chin out” with that ruling. Banks said Cannon’s ruling cut against decades of court decisions upholding the constitutionality of special counsels as well as the prior independent counsel statute.

“Prosecutors, attorneys general have had discretion to appoint officials for all sorts of circumstances since the beginning of the republic,” Banks said.

University Professor David Driesen Discusses Potential Legal Battles Surrounding the Presidential Election

University Professor David Driesen spoke with Business Insider for the article, “The courts could decide this presidential election, and both campaigns are gearing up for an ugly legal fight.”

“You now have, in the swing states of Georgia, Arizona, Michigan, Nevada, Pennsylvania, about 70 election deniers and commissions that are supposed to count the electoral votes, and already there have been about 20 cases where officials in recent elections have refused or delayed certification of results,” Driesen says. “So what Trump is going to do is claim some kind of fraud and then try to get the officials who believe him to delay or prevent certification on election results.”