A 1971 Supreme Court Decision of Doubtful Vitality Thwarts § 1983 Liability for Mistaken-Identity Arrests and Stifles Development of Clear Constitutional Rules -
Kafka would love qualified immunity.1 Not only does current…
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/ Civil Rights, Constitutional Law, Criminal Law
In 2013, a divided Supreme Court held in Shelby County v. Holder that Section 4(b) of the Voting Rights Act of 1965 was unconstitutional, ending its preclearance requirement in states with a history of discriminatory voting…
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/ Civil Rights, Constitutional Law, Elections & Politics
Together, the Supreme Court’s decisions in Loper-Bright and Corner Post open a path to attack federal regulations issued by agencies (and upheld by courts) many years ago. As Justice Jackson put it in her Corner Post dissent:…
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/ Administrative Law, Constitutional Law
For too long, judges have been permitted at sentencing to consider anything they deem “relevant,” including allegations that were considered and rejected by a jury. So-called “acquitted conduct sentencing” clearly offends…
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/ Constitutional Law, Criminal Law
The American Bar Association’s National Institute on White Collar Crime has long focused on regulating, prosecuting, and defending evolving permutations of fraud, or allegedly fraudulent conduct. At the 39th annual event, held…
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/ Antitrust & Trade Regulation, Business Organizations, Science, Computers, & Technology
Telling on yourself is not an intuitive defense. But federal regulators and prosecutors at last week’s ABA National Institute on White Collar Crime urged companies and executives to consider doing so or risk being beat to the…
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/ Business Organizations, Finance & Banking, Labor & Employment Law
In federal court, “not guilty” doesn’t always mean no punishment. Under a quirk of federal sentencing law, judges are permitted to consider at sentencing anything that they consider relevant, including conduct for which a jury…
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/ Administrative Law, Civil Procedure
At Tuesday’s oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, Justice Kagan asked the government’s counsel whether there is “any interaction” between the statute of limitations question in…
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/ Administrative Law, Civil Procedure, Finance & Banking
The Constitution requires judicial independence in Article III. As Hamilton observed in “Federalist 78”: “The standard of good behavior for the continuance in office of the judicial magistracy . . . . is the best expedient which…
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/ Administrative Law, Civil Procedure, Construction Law
The possible disqualification of former President Trump from the 2024 presidential election has kindled interest in the original public meaning of the Fourteenth Amendment. Unfortunately, Maryland’s consideration of the…
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/ Constitutional Law, Elections & Politics
A previous post examined interpretations of the statutory term “corruptly” in case law arising from prosecutions of participants in the January 6, 2021 Capitol riot. A significant new case from the D.C. Circuit, United States…
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/ Criminal Law, Law Practice Products & Services
When public officials block commenters from their social media pages, are they acting “under color of” state law for purposes of 42 U.S.C. § 1983? Yesterday, October 31, 2023, the Supreme Court heard oral arguments in two cases,…
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/ Civil Procedure, Communications & Media Law
On September 7 the District of Columbia Court of Appeals reached an important issue about the D.C. Anti-SLAPP Act that it had reserved a few months earlier. In Banks v. Hoffman, the Court held “the discovery-limiting aspects of…
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/ Civil Procedure, Constitutional Law, Zoning, Planning & Land Use
On August 23, 2023, the U.S. Securities and Exchange Commission (“SEC” or “Commission”) finalized new rules and amendments under the Investment Advisers Act of 1940 (“Advisers Act”) to enhance the regulation of private fund…
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/ Finance & Banking, Securities Law
White collar defense attorneys typically advocate on behalf of corporations and executives in the worlds of business and finance. It may not seem natural, then, to suggest that white collar lawyers would do well to pay attention…
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/ Law Practice Products & Services
