Is Consent Overrated?

SHERRY F. COLB

Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.

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Lariat Companies, Inc. v. Wigley

Docket: 18-3489

Opinion Date: March 9, 2020

Judge: William Duane Benton

Areas of Law: Bankruptcy

The Eighth Circuit reversed the Bankruptcy Appellate Panel's (BAP) conclusion that Lariat's claim against debtor no longer exists because her husband discharged his liabilities in an earlier bankruptcy. Rather, the court affirmed the bankruptcy court's allowance of Lariat's claim based on the fraudulent-transfer judgment. The court held that the husband's discharge did not extinguish debtor's liability because it did not cover all the money owed, and that Lariat's claim against debtor is capped under 11 U.S.C. 502(b)(6).

Nagel v. City of Jamestown

Docket: 18-2842

Opinion Date: March 9, 2020

Judge: James B. Loken

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

Plaintiff, a former police officer, filed a 42 U.S.C. 1983 action against the city and the chief of police, alleging unlawful retaliation for exercising his First Amendment right to participate in a media interview, deprivation of his right to pretermination process, and violation of his rights under the North Dakota Constitution. The Eighth Circuit affirmed the district court's grant of defendants' motion for summary judgment. The court held that the district court properly granted summary judgment on the First Amendment claim where plaintiff failed to prove his speech as a public employee was protected by the First Amendment. In this case, the district court found that plaintiff was not speaking as a citizen in a local news interview; plaintiff's speech during the interview was not on a matter of public concern because his asserted desire was to clear the name of his Facebook alias, which was a purely private interest; and even assuming plaintiff was a citizen commenting on a matter of public concern, his speech at the interview was not First Amendment protected, because it created great disharmony in the workplace, interfered with plaintiff's ability to perform his duties, and impaired his working relationships with other employees. The court also held that plaintiff was not deprived of his right to due process, and declined to exercise supplemental jurisdiction over the state law claims.

Perez-Rodriguez v. Barr

Docket: 18-3269

Opinion Date: March 9, 2020

Judge: Lavenski R. Smith

Areas of Law: Immigration Law

The Eighth Circuit denied a petition for review of the BIA's denial of petitioner's application for asylum based on his claim that he belonged to a particular social group of "individuals with schizophrenia who exhibit erratic behavior." The BIA found that there was no connection between the alleged persecution and the social group. The court held that the BIA did not err in concluding that petitioner failed to establish that he would be subjected to persecution on account of his membership in the alleged social group. In this case, the record was not so substantial that a reasonable factfinder would have to conclude that Mexico's government targets individuals on account of group membership. Rather, the BIA noted that economic considerations, as well as political considerations, contributed substantially to the regrettable institutional conditions.

Pemberton v. Saul

Docket: 18-3746

Opinion Date: March 9, 2020

Judge: Kobes

Areas of Law: Public Benefits

The Eighth Circuit affirmed the denial of social security disability benefits to plaintiff, holding that substantial evidence supported the ALJ's residual functional capacity (RFC). The court held that the ALJ's finding that plaintiff can perform frequent but not constant grasping, handling, and fingering with her right arm is supported by substantial evidence.