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Formalism, Realism, and State Taxes on Out-of-State Transactions: Quad Graphics and the Meaning of Wayfair
Get PDFThe Rollback of Public Health Emergency Powers and a New Model Law
No full textThe COVID-19 pandemic caused governors to use executive branch public health powers to an unprecedented degree. A combination of public weariness with the pandemic, frustration with executive actions designed to mitigate the community effects of COVID, and ongoing anti-government sentiment has resulted in judicial and legislative actions that have eliminated fundamental executive power to protect public health during an emergency. To assure that all states are prepared for future public health emergencies, the Uniform Law Commission is drafting a model public health emergency authorities law. Rob Gatter is helping to lead this drafting project and will describe the draft model law. Speaker Bio
Rob Gatter is a Professor of Law and the Director of the Center for Health Law Studies at Saint Louis University. He is an author of the casebook Health Law: Cases, Materials and Problems, which is now in its ninth edition. Gatter\u27s scholarship and service is focused on law and policy affecting infectious disease threats. He has published a dozen articles related to novel influenza, Ebola, and COVID policy and presented on those topics at a variety of academic, professional, and community organizations. He served on the COVID task force of St. Louis County, and he is currently the Reporter to a Uniform Law Commission committee drafting a model state public health emergency authorities statute
Protecting Everyone\u27s Constitutional Rights: Panel on Qualified Immunity
No full textQualified immunity is a doctrine invented by the Supreme Court in 1982 which protects all government officials from liability when they violate a person’s rights, even intentionally. This prevents people whose rights have been violated from seeing their day in court. The Institute for Justice is partnering with the Social Justice Law Center at Case Western Reserve University to host a panel discussion about qualified immunity, including recent efforts to end the doctrine via litigation, activism, and legislation. Speakers include:
Jonathan Adler, the Johan Verheji Memorial Professor of Law at Case Western Reserve University Law School and the Director of the Coleman P. Burke Center for Environmental Law. Adler has authored or edited seven books and numerous articles, testified before congress a dozen times, and his work has been cited by the Supreme Court. He is a contributing editor to the National Review Online and a regular contributor to the legal blog the Volokh Conspiracy, where has written about, among other issues, ending qualified immunity.
Patrick Jaicomo, a Senior Attorney at the Institute for Justice. At IJ, Patrick is one of the leaders of the Project on Immunity and Accountability, through which he works to promote judicial engagement and ensure that government officials are held accountable when they violate individuals’ Constitutional rights. Patrick has litigated accountability issues across the country and at every level of the federal court system, including the Supreme Court.
Anthony Novak, who was arrested, jailed, and pressed for felony charges – all for creating a Facebook page parodying the Parma Police Department. Anthony was found not guilty, but when he tried to sue to vindicate his First Amendment right to parody, his case was thrown out when the police officers who arrested him were granted qualified immunity. Anthony appealed his case all the way to the Supreme Court, which will decide whether to hear his case on February 17 – the same day he will be speaking at Case Western.…and more!
You can learn more about the campaign to abolish qualified immunity in Cleveland at www.aaqi.org/neohi
Reflections of an International Chief Prosecutor
No full textThe Bruce J. Klatsky Endowed Distinguished Lecture in Human Rights Featuring Hon. Fatou Bensouda, former Chief Prosecutor of the International Criminal Court
Fatou Bensouda, Ambassador of The Gambia to the UK, served as Chief Prosecutor of the International Criminal Court (ICC) from June 2012 to June 2021. Ambassador Bensouda previously held the position of ICC Deputy Prosecutor from 2004 to 2012. Prior to her work at the ICC, Ambassador Bensouda worked as Trial Attorney, Senior Legal Adviser and Head of the Legal Advisory Unit at the International Criminal Tribunal for Rwanda in Arusha, Tanzania. Between 1987 and 2000, she served in successively senior positions in The Gambia, including Attorney General and Minister of Justice, in which capacity she served as Chief Legal Advisor to the President and Cabinet. In March 2022, Ambassador Bensouda was appointed by the UN Human Rights Council to be Chairman of the three-person International Commission of Human Rights Experts on Ethiopia which is investigating atrocities in Tigray and neighboring regions
On Being Predictably Unpredictable
No full textSumner Canary Memorial Lecture: Judge Kevin C. Newsom, On Being Predictably Unpredictable
A judge should aspire to be perfectly predictable with respect to his or her methodology. That methodology, broadly described, is one of formalism – which manifests itself, most notably, in an originalist approach to constitutional cases and a textualist approach to statutory and regulatory cases. But if applying that methodology properly and honestly, the results of decisions should be at least somewhat unpredictable. Speaker\u27s Bio
Judge Kevin C. Newsom is a member of the United States Court of Appeals for the Eleventh Circuit. He sits in Birmingham, Alabama. Before his appointment to the bench, Judge Newsom was the head of the appellate practice group at Bradley Arant Boult Cummings LLP and, before that, the Solicitor General of Alabama. As a practicing lawyer, Judge Newsom argued four cases in the U.S. Supreme Court, and nearly 40 more in the U.S. Courts of Appeals and state supreme and appellate courts.
Judge Newsom graduated summa cum laude from Samford University and magna cum laude from Harvard Law School, where he was an articles editor on the Harvard Law Review. Following law school, Judge Newsom clerked for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit and Justice David H. Souter of the Supreme Court of the United States.
The Sumner Canary Memorial lecture was established to honor the memory of the late Judge Sumner Canary, a pillar of the Cleveland legal community. Judge Canary served on the Ohio Court of Appeals for the Eighth District and as U.S. Attorney for the Northern District of Ohio. In addition to his public service, Judge Canary was a partner at the firms of Canary & Walsh and Arter & Hadden.
This lectureship, which was made possible due to the generosity of Judge Canary’s widow, Nancy Canary, has featured numerous federal judges, scholars, academics and six U.S. Supreme Court Justices
From In-House Counsel to Inmate: Meet the Former GC of WellCare Health Plans
No full textAn inside account of one lawyer’s fall from billion dollar public company executive to criminal defendant in a major healthcare fraud prosecution, to federal prison inmate, and…back. Speaker Bio
Thad Bereday was Senior Vice President and General Counsel of WellCare Health Plans from 2002-2008. Thad’s legal career ended when WellCare was raided by 200 federal agents, setting off a decade long odyssey through the criminal legal system.
So began a grueling descent during which Bereday lost his job, his law license, his health, his family, and his freedom. He later received a presidential pardon. Today, he is an advocate for criminal justice reform and the possibility of redemption.
Edmund W. Searby (moderator) is a partner at Porter Wright and an adjunct faculty member at Case Western Reserve University School of Law. He is a former federal prosecutor in Florida and a Special Deputy Independent Counsel in Washington, D.C. He represented an executive (other than Bereday) in the criminal investigation of WellCare
What’s a Tax for Bankruptcy Law Purposes?
Get PDFIn 2012, the Supreme Court, in NFIB v. Sebelius, decided that the shared responsibility payment (SRP) required to be made under the Patient Protection and Affordable Care Act by many persons who didn’t acquire minimum essential health insurance was a tax authorized by the Taxing Clause of the Constitution, even though Congress had called the SRP a penalty. In recent years a similar issue has arisen in the bankruptcy context: Is the SRP a tax that may not be eligible for discharge in bankruptcy—it may, that is, be a “priority” under Bankruptcy Code Section 507(a)(8)—or is it a potentially dischargeable penalty? Many cases have considered these questions, coming to dramatically different conclusions. This article focuses on the Third Circuit’s 2022 decision in In re Szczyporski, concluding that the SRP is a tax measured by income”—and therefore a priority. Although the SRP was reduced to zero by the Tax Cuts and Jobs Act of 2017, so that the SRP’s characterization for bankruptcy purposes won’t be a future issue, what courts have said about the statutory distinction between taxes and penalties can continue to matter for the characterization of other governmental charges
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