The Oprah Interview as a Truth Commission

LESLEY WEXLER

Illinois Law professor Lesley Wexler explains how Oprah’s interview with Prince Harry and Meghan Markle might illuminate how a formal truth commission to deal with legacies of racism and colonialism might function in the British empire. Professor Wexler describes the purpose and function of state-operated truth commissions and notes the similarities and differences between those and the interview.

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Mandacina v. Entzel

Docket: 20-1027

Opinion Date: March 12, 2021

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Mandacina was sentenced to life imprisonment for paying to kill a potential witness in a criminal case. His conviction and sentence were affirmed in 1995. Mandacina filed an unsuccessful 28 U.S.C. 2255 collateral attack. While his appeal was pending, he attempted to add a contention that the prosecutor failed to produce information that a trial witness—FBI agent Craft—had committed misconduct in other cases. The Eighth Circuit affirmed without discussing that contention. Mandacina requested permission to pursue a second 2255 collateral challenge based on information about Craft. The Eighth Circuit denied the request in 2005. Mandacina sought a 28 U.S.C. 2241 writ of habeas corpus, based on the same considerations presented to the Eighth Circuit. The Seventh Circuit affirmed that the petition is blocked by section 2255(e), which says that habeas relief is unavailable unless it appears that the remedy under 2255 is inadequate or ineffective to test the legality of the detention. Mandacina does not contend that Craft engaged in misconduct while investigating or testifying in his prosecution and did not contend that the prosecutors knew of Craft’s misconduct. Brady claims concerning potential impeachment evidence are routinely decided under section 2255. That Mandacina did not previously succeed does not make section 2255 inadequate or ineffective, nor is a prisoner entitled to section 2241 review just because the court did not write an opinion. “We do not use section 2241 to regulate how our colleagues in other circuits handle their business.”

Bennett v. Council 31 of the American Federation of State, County, and Municipal Employees

Docket: 20-1621

Opinion Date: March 12, 2021

Judge: Joel Martin Flaum

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

When Bennett began working as a custodian for the School District, she had to either become a Union member and pay union dues or decline membership and pay “fair‐share” or “agency” fees. She joined the Union. Following the Supreme Court’s 2018 “Janus” decision, she notified the Union and the School District that she wished to resign her membership and terminate all payments to the Union. The Union allowed Bennett to resign her membership and opt-out of payments, but only after the lapse of the window set forth in her union‐membership agreement. Bennett sued, asserting that the deduction of union dues from her wages violated her rights under the First Amendment as recognized in Janus and that the Union’s exclusive representation of her interests, even though she is no longer a member, violates her constitutional rights by allowing the Union to speak on her behalf. Bennett sought damages in an amount equal to the dues deducted from her paychecks up to the statute of limitations and declaratory and injunctive relief. The district court granted the defendants summary judgment. The Seventh Circuit affirmed. Bennett cannot establish that the deduction from her wages of union dues she voluntarily agreed to pay in consideration for the benefits of union membership violated her First Amendment rights under Janus. Nor can she establish that Janus rendered the long-standing exclusive‐bargaining‐representative system of labor relations unconstitutional.

Planned Parenthood of Indiana v. Box

Docket: 17-2428

Opinion Date: March 12, 2021

Judge: HAMILTON

Areas of Law: Civil Rights, Constitutional Law

Indiana statutes provided a fast and confidential judicial bypass procedure that is supposed to allow a small fraction of pregnant, unemancipated minors seeking abortions to obtain them without the consent of or notice to their parents, guardians, or custodians. In 2017, Act 404 added a requirement that parents be given prior notice of the planned abortion unless the judge also finds such notice is not in the minor’s “best interests” unlike the judicial bypass of parental consent, which may be based on either maturity or best interests. In 2019, the Seventh Circuit held that Act 404 created a substantial risk of a practical veto over a mature yet unemancipated minor’s right to an abortion, likely to impose an undue burden for the unemancipated minors who seek to obtain an abortion without parental involvement via the judicial bypass. On remand from the Supreme Court in light of its 2020 “June Medical” decision, which struck down a Louisiana law regulating abortion providers, but without a single majority opinion. “The opinions in June Medical show that constitutional standards for state regulations affecting a woman’s right to choose to terminate a pregnancy are not stable, but they have not been changed in a way that would change the outcome here.” The court again affirmed the district court’s preliminary injunction barring enforcement of the challenged law pending full review.

Zurich American Insurance Co. v. Ocwen Financial Corp.

Docket: 19-3052

Opinion Date: March 12, 2021

Judge: Diane Pamela Wood

Areas of Law: Consumer Law, Insurance Law

The Seventh Circuit affirmed the district court's judgment declaring that Zurich had no duty to defend Ocwen in the underlying litigation brought by a consumer. In the underlying case, the consumer's complaint relied on the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA), as well as common law claims of defamation and invasion of privacy. Zurich insured Ocwen under a series of commercial general liability policies, but two provisions in the policies expressly excluded injuries resulting from conduct that violates certain laws. Setting aside the live-operator calls to the consumer's home and the manually dialed calls to her cell phone, and assuming that neither violated the TCPA, the court concluded that it remains true that if Ocwen caused "a telephone to ring … repeatedly or continuously with the intent to annoy, abuse, or harass any person at that called number," which the district court concluded Ocwen did, then it violated the FDCPA. Because the policy exclusion's catch-all clause swept in the FDCPA as an "other statute" that regulates the communication of information, Zurich had not duty to defend based on the factual allegations of the consumer's complaint.

Arguijo v. United States Citizenship and Immigration Services

Docket: 20-1471

Opinion Date: March 12, 2021

Judge: Frank Hoover Easterbrook

Areas of Law: Family Law, Immigration Law

Plaintiff's mother married a U.S. citizen in 1999 and divorced him in 2004 because of his violent behavior. Plaintiff had run away the year before, when she was 15, to escape the abuse. At issue is whether, after the divorce, plaintiff remained a "child" of her mother's ex-husband. Plaintiff's mother died shortly after the divorce and could not file a petition under the Violence Against Women Act (VAWA) on plaintiff's behalf. Plaintiff had to petition on her own behalf, and the agency rejected her application because a self-petition may be filed only by someone who "is the child" of an abusive U.S. citizen. Because, in the agency's view, plaintiff lost stepchild status in 2004, and only a person who "is" a child of an abusive parent may seek relief, the agency denied her application. However, the agency and the district court, relying on Matter of Mowrer, 17 I&N Dec. 613, 615 (1981), both concluded that even after divorce, a person remains a stepchild as long as "a family relationship has continued to exist as a matter of fact between the stepparent and stepchild." The Seventh Circuit held that, in the context of VAWA, "stepchild" status survives divorce. The court explained that someone who is a stepchild during a marriage remains one after divorce, when termination of "stepchild" status would defeat application of the substantive rule that abused stepchildren are entitled to an immigration benefit. The court clarified that Mowrer does not interpret VAWA. Accordingly, the court reversed and remanded.