No Good Men?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a film called “Promising Young Women,” which purports to be a feminist movie about date rape. While Professor Colb describes the movie as interesting, thought-provoking, and “definitely” worth seeing, she argues that it suggests a view of men and sexual assault that is erroneous and potentially even anti-feminist.

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Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, offers thoughts on the legal tactics and briefs filed by each side in former President Trump’s second impeachment trial. Mr. Falvy argues that if Trump can survive a second impeachment vote, it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

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Kirk v. Commissioner of Social Security Administration

Docket: 19-1989

Opinion Date: February 4, 2021

Judge: James Andrew Wynn, Jr.

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Public Benefits

Plaintiffs, former recipients of Social Security disability benefits and former clients of an attorney who orchestrated one of the largest fraud schemes in the history of the SSA, argued in consolidated appeals that SSA's categorical exclusion of allegedly fraudulent medical evidence during the redetermination process was unlawful because they were never afforded any opportunity to rebut the allegation that their evidence was tainted by fraud. The Fourth Circuit joined its sister circuits and held that the SSA's redetermination procedures violate the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment. The court agreed with plaintiffs that it is arbitrary and capricious for the agency to deny beneficiaries an opportunity to contest the Office of the Inspector General's fraud allegations as to their cases, while permitting other similarly situated beneficiaries to challenge similar allegations arising from SSA's own investigations. The court also agreed with plaintiffs that the SSA's redetermination procedures violated their due process rights under the Fifth Amendment because they were denied the opportunity to contest the Office of the Inspector General's fraud allegations against them. In this case, the court considered each Mathews factor and concluded that each factor supports a finding that the SSA's redetermination procedures violated plaintiffs' due process rights. Accordingly, the court affirmed in No. 19-1989 and reversed in No. 19-2028.

Wingate v. Fulford

Docket: 19-1700

Opinion Date: February 4, 2021

Judge: Roger L. Gregory

Areas of Law: Civil Rights, Constitutional Law

Plaintiff filed suit under 42 U.S.C. 1983 and Virginia common law, challenging his stop, arrest, and subsequent prosecution. The district court denied plaintiff's motion for summary judgment and granted the officers' motion for summary judgment on each of plaintiff's claims. The Fourth Circuit held that, when Deputy Fulford told plaintiff that he was not free to leave until he identified himself, this unambiguous restraint on plaintiff's liberty converted the previously voluntary encounter into a compelled detention—an investigatory stop. Furthermore, the district court erred in finding that Fulford's stop was supported by reasonable and particularized suspicion. In this case, it is not enough that Fulford first began to suspect criminal activity when a man that he intended to help approached him in dark clothing. The court also held that plaintiff's arrest was likewise unlawful where Stafford County Ordinance 17–7(c), which makes it a crime for any person at a public place or place open to the public to refuse to identify himself at the request of a uniformed law-enforcement officer if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification, is unconstitutional when applied outside the context of an investigatory stop. The court further held that Fulford is not entitled to qualified immunity for his unconstitutional investigatory stop, but the officers are entitled to qualified immunity for their unlawful arrest under Stafford County Ordinance 17–7(c). Until today, the court explained that no federal court has prescribed the constitutional limits of section 17-7(c)'s application and thus this right was not clearly established at the time of plaintiff's arrest. Finally, the court affirmed the district court's grant of summary judgment for the officers on plaintiff's claims under the Virginia common law. The court affirmed in part, reversed in part, vacated in part, and remanded with instructions.