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Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: The Potential for Defensive Litigation
No full textThe Texas Heartbeat Act (SB8) prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the law adopts a unique enforcement scheme—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.
In a series of articles, we explore how SB8’s exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This piece explores defensive litigation, in which a rights-holder violates the law, gets sued (usually in state court), and raises the law’s constitutional invalidity as a defense, asking the court to dismiss the enforcement action. The article compares numerous similar situations in which constitutional rights must be litigated defensively. It then examines the processes through which SB8 challenges can be litigated defensively; these include how providers might trigger a lawsuit, the role of “friendly” plaintiffs in bringing suit, limitations on state standing, and how the case can reach the Supreme Court of the United States for final review
The Foundational Care Crisis
Get PDFThis article examines the care crisis as the systemic issue that it is—starting from my personal story—because my story is the story of many women—and many caregivers. Teaching business law and ethics to undergraduates, I often encounter a primary question: what is the role of social issues in a business course? Sometimes students struggle with this initial hurdle of understanding why we study diversity, equity, inclusion, and justice in the workplace. Why—for example—would we focus on lack of family leave as a primary barrier a successful business. The second question is—of course—what can we do? Social and societal issues are business issues. They form the lens by which we view everything else. The care crisis is a foundational barrier to any meaningful systemic breakthrough. As to what we can do? What we must do? We must build a community that will support women, caregivers, and other historically marginalized groups—at every step. No longer can we profess to value diversity while ignoring the systems that hinder its ability to flourish. In the midst of a pandemic, we have the opportunity—and the responsibility—to make and sustain meaningful change
Blood, Sweat, Tears: A Muslim Woman Law Professor\u27s View on Degenerative Racism, Misogyny, and (Internal) Islamophobia from Preeclampsia and Presumed Incompetent to Pandemic Tenure
Get PDFFrom classical literature, popular press, law, everyday conversations, and social media rampages, society scrutinizes visible Muslim women even though they are a part of a vast global population. From E.M. Forrester’s A Passage to India—the Orientalist summer reading I endured in high school—to the incessant online attacks on U.S. Congresswoman Ilhan Omar, the hatred has no end and no bounds. Visible Muslim women are accustomed to erasure and censure for simply existing. In France, legislators sought to expel visible Muslim women under the age of eighteen from the public space. Women’s rights have been used as a pretext to invade Muslim-majority nations. This paper examines the perspective for deep thought and the impetus for change that the pandemic parenting experience offered me. Being around my children and at their beck and call 24/7 allowed me to see the world more through their eyes. The subtle bigotry and insensitivities that I experienced pre-pandemic intensified because not only did I want to survive, I wanted my children to grow up in a world free from hate. Sitting around and ignoring the slights would be impossible. Free from daily microaggressions, constant commuting, and code-switching, but saddled with intensive childcare, cooking, cleaning, and sanitizing responsibilities, I developed a keener awareness for the degenerative biases I faced in the periphery of my pre-pandemic life. Being a pandemic academic parent empowered me to confront systemic racism, misogyny, and (internal) Islamophobia. My only goal was to stay alive, be authentic, and stop self-censuring. If it all went to hell in a handbasket, so be it. I survived 2020. Over 1.81 million people did not survive the coronavirus in 2020. This is my journey from a shy little girl in Central Florida to motherhood and the faculty tenure vote put into perspective by the pandemic
Mysterious Ways
Get PDFThe “mystery” or “detective” novel originated in the first half of the 19th century, and quickly became extremely popular. Its origins betray changes in English and American society—the same changes that led to innovations in criminal justice, especially the creation of detective squads in the big cities. The goal of the detective was to expose secret crime—crimes committed by confidence men, and others who worked in the shadows. Thousands and thousands of detective novels have been written; they are extremely varied; but they tend to share one common trait: they turn on the problem of hidden personal identities, which the detective (say, Sherlock Holmes) succeeds in uncovering, usually in the final chapter. Classic “mystery” stories (those, for example, of Agatha Christie) were often positioned in polite and even upper-class society. American “hard-boiled” mysteries of the 1930’s, and recent literature in which serial killers figure, reflect changing views of society; but simulated identity remains a common theme. This theme is also at the root of spy novels, another genre which developed in the 19th century
A Rawlsian Critique of the Political Speech Constraints on Charities
Get PDFThis Essay analyzes whether the Rawlsian concept of public reason explains the substantive content of the lobbying limitation and the campaigning ban, and, more broadly, the implications of public reason for tax-exempt charities and their political speech. The question is notwhether public reasons—distinct premises and conclusions forming an argument—justify these provisions of law, but whether the political activity limitations of IRC § 501(c)(3) are properly understood to manifest or implement the ideal of public reason itself. Additionally, if these statutory constraints do not embody the ideal of public reason, do they offend it
Regulation of Bank Financial Service Activities, Cases and Materials 6th Edition
No full textThis edition incorporates developments in bank and financial services legislation and regulation that have occurred through June 2021, including the Trump administration’s regulatory initiatives in respect of the Dodd-Frank Act. The sixth edition organizes the chapters into three thematic Parts to help focus classroom discussion. Part One surveys the depository bank business model, the dual banking system, and its layered regulatory structure, including the role of financial holding companies, bank subsidiaries, and nonbank affiliates active across financial markets. The materials emphasize that though the majority of depository institutions are thrifts, credit unions, and community banks, consolidation and conglomeration have left the lion’s share of bank assets in the hands of a few large banking organizations that dominate national and global markets, presenting unique regulatory challenges.Part Two focuses on prudential supervision of banks and their holding companies, which reflects the distinctive demands created by deposit-taking, credit creation, and liquidity intermediation. Post-crisis reforms have dramatically changed this aspect of regulation. The materials emphasize the different ways in which banks finance their activities, including by accepting insured deposits, borrowing at market rates from wholesale lenders, using government funds available only to banks, and raising equity capital from investors. The discussion makes clear how, in addition to meeting market capital requirements that apply to all businesses, banks contend with complex regulatory standards that encourage liquidity, limit leverage, and promote the ability to absorb unexpected losses.Part Three surveys the range of specialized financial services performed by banks and their holding companies beyond their depository functions. The materials illustrate how banks underwrite debt and equity securities, manage investment portfolios, advise investors, make markets for financial products, act as both principal and agent in derivative transactions (including credit default swaps and interest rate derivatives such as options, futures, and forwards), and provide fiduciary services as trustees, including by managing retirement and collective investment funds, offering custody for financial assets, and competing with mutual funds. The book pays special attention to consumer lending -- through mortgage finance, educational debt, and credit card loans -- an area that has grown in importance due to the CFPB.The authors have prepared a Word document with links to relevant statutes and regulations organized by subjects discussed in the casebook. This document is available in Word format so that adopters and others may add or subtract material to suit the coverage of their class. This alternative to a statutory and regulatory supplement reduces costs and weight in student’s backpack, but more importantly provides access to the latest versions of the relevant statutes and regulations.https://ecollections.law.fiu.edu/faculty_books/1315/thumbnail.jp
Zombie Laws
No full textA judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.” This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future
Racecraft and Identity in the Emergence of Islam as a Race
No full textCan a religion, over time and through its social and legal resignification, come to be a race? Drawing on Critical Race Theory (“CRT”), Critical Discourse Theory, the work of Karen E. and Barbara J. Fields and Cedric Robinson, this article argues that Islam has emerged as a race and Muslims as a racial group. To support the claim, Part I examines the theoretical basis for the argument. Applying the concept of “racecraft,” the article theorizes that racism produces both the racial group and race. As many have already argued, race is not based in biology; it is not a fact but rather an artifact of racism. The appearance or specter of race, moreover, is an assemblage that coheres in response to specific racism targeted at a population with shared characteristics. Thus, there is no reason to suppose that Islam could not be a race. Islamophobia as a specific form of racism produces the Muslim as a raced people and Islam as a race through racecraft—the tools and practices of racism. However, for racism to produce a subject racialized group, it must first make racial meaning of the group members’ shared attributes. Part II offers a genealogy of Islam-as-race, arguing that Islam has always been coded as a religion of color and categorically different from European, white, Christian civilization. It is the connection to Islam that has rendered the Muslim an alien. That is the substratum of Islam-as-race. In Part III, the article goes on to examine the racecraft that was deployed in the anti-sharia law panic of the 2010s and in the current anti-CRT panic. In this section, the article applies Critical Discourse Studies to the law to demonstrate how discourses of legitimation that support the differential treatment of Muslims and Blacks is produced. Finally, the article provides examples of material discrimination and its overlap in these communities. The article shows how racism’s rituals and tools are honed and sharpened against one community and then repurposed for use against another. The central claim throughout the article is that theorists of Islamophobia have not gone far enough. They have stopped short, preferring to refer to Muslims as “racialized” depending on analogies to other races or relying on the already ethnic differences of Muslims yet struggling to explain the role of religion in the racialization. These theories are unable to account for how white or white passing Muslims become racialized once they are outed or how Muslims evade racialization while non-Muslims sometimes do not. This article suggests that it is Islam that “races” them. We should now consider Muslims a racial group, Islamophobia as a form of racism, and Islam as a race