#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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Henry v. Adventist Health Castle Medical Center

Docket: 19-16010

Opinion Date: August 14, 2020

Judge: John Byron Owens

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The Ninth Circuit affirmed the district court's adverse grant of summary judgment against plaintiff's Title VII lawsuit. The panel held that the undisputed facts clearly show that plaintiff was Castle's independent contractor and thus not entitled to Title VII protections. In this case, plaintiff was paid, taxed, and received benefits like an independent contractor; plaintiff's obligations to Castle were limited, providing him the freedom to run his own private practice; the contracts between Castle and plaintiff described him as an independent contractor. The panel stated that other factors also weighed in favor of plaintiff being an independent contractor.

Duncan v. Becerra

Docket: 19-55376

Opinion Date: August 14, 2020

Judge: Kenneth K. Lee

Areas of Law: Civil Rights, Constitutional Law

California Government Code 32310, which bans possession of large capacity magazines (LCMs) that hold more than ten rounds of ammunition, violates the Second Amendment. The Ninth Circuit affirmed the district court's grant of summary judgment for plaintiffs who brought suit challenging section 32310. The panel applied a two-prong test to determine whether firearm regulations violate the Second Amendment. First, the panel held that section 32310 burdens protected conduct because firearm magazines are protected arms under the Second Amendment; LCMs are not unusual arms; LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness; and there is no persuasive historical evidence in the record showing LCM possession falls outside the ambit of Second Amendment protection. Second, the panel held that strict scrutiny is the appropriate standard to apply where section 32310 strikes at the core right of law-abiding citizens to self-defend by banning LCM possession within the home; section 32310 substantially burdens core Second Amendment rights; decisions in other circuits are distinguishable; and Fyock v. City of Sunnyvale does not obligate the panel to apply intermediate scrutiny. Although the state has compelling interests in preventing and mitigating gun violence, the panel held that section 32310 was not narrowly tailored to achieve such interests. Finally, even if intermediate scrutiny applied, section 32310 would still fail under the more lenient standard.

MetroPCS California, LLC v. Picker

Docket: 18-17382

Opinion Date: August 14, 2020

Judge: Michelle T. Friedland

Areas of Law: Communications Law, Constitutional Law, Government & Administrative Law

Federal law does not facially preempt California law governing universal service contributions from prepaid wireless providers. Federal law requires telecommunications providers, including wireless providers such as MetroPCS, to contribute to the federal Universal Service Fund, which helps provide affordable telecommunications access. California requires its own universal service contributions, adopting the Prepaid Mobile Telephony Services Surcharge Collection Act in 2014, which (prior to its recent expiration) governed the collection of surcharges from prepaid wireless customers. The CPUC issued resolutions implementing the Prepaid Act that required providers of prepaid services to use a method other than the three FCC recognized methods to determine the revenues generated by intrastate traffic that were subject to surcharge. MetroPCS filed suit challenging the CPUC's resolutions. The panel held that the expiration of the Prepaid Act did not cause this case to become moot and that the panel therefore has jurisdiction to reach the merits of MetroPCS's preemption claim. On the merits, the panel held that preemption is disfavored because there was a dual federal-state regulatory scheme and a history of state regulation in the area of intrastate telecommunications. In this case, the CPUC resolutions are not facially preempted by the Telecommunications Act and related FCC decisions. The panel rejected MetroPCS's argument that the resolutions conflict with the requirement of competitive neutrality by depriving prepaid providers (but not postpaid providers) of the "right" to calculate intrastate revenues in a way that avoids assessing the same revenues as federal contribution requirements. Furthermore, the panel rejected MetroPCS's argument that because prepaid providers are deprived of that "right," the resolutions are preempted regardless of the treatment of competing providers. Therefore, the panel reversed the district court's ruling in favor of MetroPCS and remanded for the district court to consider in the first instance MetroPCS's other challenges to the resolution.

Akosung v. Barr

Docket: 17-72829

Opinion Date: August 14, 2020

Judge: Eric D. Miller

Areas of Law: Immigration Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner fled her Cameroonian village after she was ordered to marry the village chieftain, called the Fon. In this case, petitioner's credible and unrebutted testimony establishes that, during the period after she left home, she was hiding in fear of her life and of being captured and taken to the palace for a forced marriage. Furthermore, the record does not demonstrate any safe relocation in a place where the Fon's writ did not run. The panel held that substantial evidence does not support the Board's conclusion that petitioner could relocate within Cameroon to avoid future persecution or torture; her proposed social group of "women resistant to forced marriage proposals" lacked social distinction; and she failed to establish a clear probability of torture with government acquiescence.