Affirmative Defense Research Articles

Reflecting on the Trajectory of American Catholic History

Reflecting on the Trajectory of American Catholic History David O'Brien1 In this brief essay I would like to offer my faith community, American Catholics, some thoughts about the trajectory of our history.2 I make no apology for emphasizing the American side of that history. Indeed, I have always found the American side of American Catholics—the out there—as interesting and important as the Catholic side—the in here—almost always associated with the personal and communal. I am not a theologian or a church historian; I am an American historian. Theologians and church historians think most of all about the church, as they should. For them American Catholics are first of all Catholics, who happen to live in the United States. Now I do love this ever changing and always interesting church, but my vocation, my work, and the things I care most about always drew me to the American side of American Catholics. The church, I was taught, is the people of God, the Body of Christ, "the way" through which Jesus remains present in and for the world. That means that we Catholics and other Christians are the Body of Christ all the time, not just when we are in church. I decided to think about how the faith and the church in here helped or hindered Catholic Americans out there, as they wove their American lives.3 So there are American as well as Catholic reasons why we need to think, together, about the trajectory of our history. The most important outcome of the American Catholic history for many of us is that we American Catholics now have a full share of responsibility for our [End Page 1] country and, far less evidently, for our church.4 In each case, Catholic and American, shared responsibility is a fact and not an option.5 What is an option is whether we will take up those responsibilities. And that depends in turn on how we understand the trajectory of our history. American Catholic Studies American Catholic Studies is a flourishing interdisciplinary academic field which has produced a body of work that has come to play an important role in the self-understanding of Catholics and, less noticed but at least equally important, in understanding American life as well.6 After all, what happens in the United States is important, and what happens in the Catholic Church, including the church in the United States, also matters, quite a lot actually. And what is very interesting is that each is part of the other. Catholics are profoundly influenced by what happens in their own American society, whether they acknowledge that or not. And American society is just as profoundly influenced (and always was) by what happens among its Catholics. There are a lot of them, they play a big role in all sectors of U.S. society, and their institutions have been at the center of American education, health care, and social services, as well as religion. So American Catholic Studies is important certainly for the life and work of the church but also for all who care about the United States. So how one tells the American Catholic story really matters. If the American Catholic story is primarily an American story, told in and with the American people, it may encourage Catholics to draw on their Catholic heritage to find meaning and purpose in their social [End Page 2] experience. That American story of American Catholicism may even open hearts to one or another form of solidarity, even civil religion, endowing the shared experience of Americans with Christian religious meaning. On the other hand, if the American Catholic story is told, as it usually is, "from the heart of the church," its narrative and outcome may be quite different, emphasizing the dangers posed by the culture, the boundaries separating "real Catholics" from others, and selected "non-negotiable teachings" that constitute Catholic identity and whose affirmative defense is required for the integrity of the church and its members. This Catholic story reinforces identity with and loyalty to the church, as it is intended to do, and it may strengthen family and communal bonds, but it also risks...

Born Free: Toward an Expansive Definition of Sex

The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety of contexts. However, several obstacles have emerged to jeopardize true equality for the LGBTQIA community, including (1) inconsistent judicial opinions regarding the meaning of “sex,” (2) the increased ability of employers to utilize religion or “any other factor” as a defense to discrimination claims, (3) regressive executive policies regarding the definition of “sex,” and (4) uncertainty about the extent to which transgender individuals may remain in the military. Although each of these issues warrants thorough analysis and has sparked scholarly debate, in this Article we focus on another critical inequality: wage disparity. Specifically, we are concerned with the problem posed for DSD and transgender individuals, given the Equal Pay Act’s requirement that plaintiffs demonstrate they are paid differently from the “opposite sex” for a wage disparity claim. The Equal Pay Act (EPA) is outdated and discriminatory in its application, and it unnecessarily subjects an entire segment of the workforce—LGBTQIA individuals—to continued discrimination. The EPA requires that plaintiffs prove their cases through reference to an opposite sex comparator, but then defers to the employer’s subjective definition of who “the opposite sex” is. This makes LGBTQIA plaintiffs’ cases essentially unwinnable. Uncertainty for the LGBTQIA community is further compounded by the expansion of the employer’s right, under both the Equal Pay Act and Title VII, to invoke religion, conscience, or “any other factor” as an affirmative defense to discrimination claims. In this Article, we discuss the interplay between a plaintiff’s sex-specific protections (against sex-based employment discrimination under Title VII and against wage disparity under the Equal Pay Act) and an employer’s affirmative defenses (under Title VII, the EPA, and current interpretations of the Religious Freedom Restoration Act). Our discussion concludes with recommendations for an expansive definition of the word “sex” and the adoption of the recently proposed Equality Act to help alleviate all forms of sex-based discrimination in the employment context.

Brief of Professor Dmitry Karshedt as Amicus Curiae Supporting Petitioner in Oil States Energy, LLC v. Greene's Energy Group, LLC

Petitioner Oil States Energy Services sued respondent Greene’s Energy Group in a district court on several counts, including patent infringement. Greene’s then petitioned the U.S. Patent and Trademark Office (PTO) to challenge the validity of the patent claims asserted in the litigation. The PTO cancelled the claims, and the Court of Appeals for the Federal Circuit summarily affirmed that determination. Had this Court not granted certiorari, the petitioner’s patent infringement cause of action would have been extinguished by the PTO’s decision. The error made by the Federal Circuit in the opinions that bound the court in the instant case, and repeated by respondents in certiorari briefing, lies in the attempt to classify patents as either public or private rights in a categorical manner – that is, in isolation from any particular cause of action. This framing is improper because, under this Court’s precedents, the question whether a case involves a private right that must be adjudicated by an Article III tribunal relates to a particular legal action or claim, not the underlying privilege or property interest. Under the correct approach, which takes into account the context in which the PTO makes its invalidity decisions, the Inter Partes Review (IPR) statute at issue in this case should be held unconstitutional because it empowers an agency to resolve a claim of private right: an action for patent infringement. The cause of action for patent infringement is a private right because it has long been recognized as a species of trespass claim by which the plaintiff typically seeks, among other remedies, monetary relief for past harm from another private party. Because of its historic characterization as a trespass, infringement has a close kinship to common-law claims that this Court has recognized as private rights that cannot be adjudicated outside Article III courts. Invalidity is one of several, enumerated affirmative defenses that a defendant in a patent case may plead in response to an allegation of patent infringement. The IPR statute effectively removes this affirmative defense to infringement from Article III courts, and empowers the Patent Trial and Appeal Board (PTAB), an arm of the PTO, to decide it. In many cases, including one involving these very litigants, a determination of invalidity by the PTAB has extinguished parallel district court actions for patent infringement. This delegation of judicial power over such causes of action to a body that is not a part of the judiciary, and not an adjunct to an Article III court, is constitutionally forbidden by this Court’s precedents. The IPR statute offends the doctrine of separation of powers for another, closely related reason: It effectively grants to the PTAB the power to direct that pending cases be dismissed. Although Congress can constitutionally abate extant claims by amending applicable law while the litigation is pending, Congress in this case delegated to an agency the power to extinguish a claim by adjudicating an affirmative defense in favor of a defendant. Because the PTAB here fully resolved a claim concurrently pending in a district court, it violated the rule that coordinate branches cannot direct Article III courts to dispose of specific cases in a particular way. The doctrine of separation of powers exists in part to prevent abuses that might eventuate if claims of private rights are adjudicated outside Article III courts. By empowering the Executive Branch to resolve such disputes in the patent infringement context, the IPR statute weakens Article III safeguards of impartial adjudication, and therefore contravenes separation of powers principles.

Drugged Driving: How the Legalization of Marijuana Has Impaired the Ability of the Louisiana DWI Law

Marijuana is now legal in four states and the District of Columbia for recreational purposes and in 23 states and the District of Columbia for medicinal purposes. Effective August 1, 2016, Louisiana enacted drastic changes to its medical marijuana law, largely widening the scope of persons who will qualify for a medical marijuana prescription and beginning the process of establishing pharmaceutical requirements for the prescribed drug. Louisiana’s Driving While Intoxicated (DWI) law, Louisiana Revised Statutes § 14:98, which includes drugged driving, is effect-based, meaning it requires proof of impairment that was caused by a proscribed scheduled drug. Currently, proof of the presence of the inactive, non-impairing marijuana metabolite in a driver’s body is used as evidence of causation of marijuana impairment. Science simply does not support this presumption of causation as this metabolite can remain in the person’s body for over a month after ingestion and long after the effect of the marijuana has ceased. Additionally, most police officers are not specifically trained to detect drug impairment, as it manifests itself differently than alcohol impairment, and Standardized Field Sobriety Test (SFST) results should be challenged on the basis of relevancy. Other states have drafted zero-tolerance driving-under-the-influence (DUI) laws regarding drugged driving. Such laws require that the chemical test show the presence of the active, impairing marijuana metabolite in the driver’s blood. Case law has also carved out affirmative defenses protecting users of medical marijuana from the zero-tolerance laws. It is the author’s opinion that as marijuana becomes more prevalent in Louisiana, the effect-based law will become exposed as drastically ineffective. Therefore, this comment proposes an alternative law regarding driving under the influence of marijuana that is based on current specific scientific findings, also compensating for the lack of police officers’ ability to properly detect marijuana impairment.

SEC publishes final rules amending the rules of practice for administrative proceedings

Purpose To explain and evaluate amendments to the rules of practice governing the US Securities and Exchange Commission’s (SEC’s) Administrative Proceedings that were adopted by the Commission on July 13, 2016. Design/methodology/approach Describes SEC’s increased pursuit of enforcement actions in APs, criticisms of the AP process, and corrective legislation. Describes the July 2016 amendments covering expansion of the prehearing period, allowance of depositions, timing for completion of document production in discovery phase, required disclosure of affirmative defenses, permitted dispositive motions, and admissibility of hearsay evidence. Assesses the practical impact of the amendments. Makes recommendations concerning advanced preparation for APs, depositions and witness-interview strategies, particular care concerning statements in Wells submission, availability of investigative record to defense counsel, admissibility of hearsay evidence, and defenses based on reliance on counsel. Findings The amended rules are a step in the right direction but do not fully correct the numerous and severe imbalances that exist in the Commission’s administrative enforcement process with respect to the availability of various discovery mechanisms, the timeline for trying a case, and more. Practical implications Every entity or individual that is involved in an SEC enforcement investigation, or that may become a respondent in an SEC Administrative Proceeding, should take certain practical steps such as those recommended in this article to minimize the structural disadvantages it will face and to maximize the benefits conferred by these latest amendments to the rules of practice. Originality/value Practical background and guidance from experienced enforcement, litigation, securities and financial services lawyers.

State v. Holle (Arizona State Supreme Court) -- Amici Curiae Brief of Law Professors in Support of Respondent's motion for reconsideration

In State v. Holle, the Supreme Court of Arizona held that the legislature may redefine the crime of child molestation to include the intentional touching of any part of the genitals, anus or female breast of a minor, and it may place the burden to prove that such touching was not the result of a sexual motivation on the defendant. In this brief, law professors explain why this burden shifting raises serious constitutional questions and thus why the Supreme Court should reconsider its previous ruling and construe the statute so that sexual motivation is an element of the crime rather than an affirmative defense.

Anticipating a Sea Change for Insider Trading Law: From Trading Plan Crisis to Rational Reform

The Securities and Exchange Commission is poised to take action in the face of compelling evidence that corporate insiders are availing themselves of rule-sanctioned Trading Plans to beat the market. These Trading Plans allow insiders to trade while aware of material nonpublic information. Since the market advantage insiders have enjoyed from Plan trading can be traced to loopholes in the current regulatory scheme, increased enforcement of the existing rules cannot address the issue. But, simply tweaking the existing rule structure to close these loopholes would not work either. This is because the SEC adopted the current rule as a part of a delicate compromise with the courts in the “use versus possession” debate over the proper test of scienter for insider trading liability. The current rule reflects the SEC’s preferred test (mere “awareness”), but it provides for Trading Plans as an affirmative defense in order to pass judicial scrutiny. Thus, any attempt to simply close the loopholes in Trading Plans while maintaining the awareness test would upset this delicate compromise. Only a comprehensive change to the current insider trading enforcement regime can address the issue. The reform proposed here begins with the recognition that Plan trading is generally done with the firm’s awareness and consent. Such trading is therefore a form of issuer-licensed insider trading. Since there are strong arguments that there is no moral wrong or economic harm done by issuer-licensed insider trading, the regulatory regime should openly embrace it as a permissible form of compensation through firm-sanctioned Modified Trading Plans, so long as there is adequate disclosure. Though such liberalization would represent a radical departure from the current enforcement regime, it would be within the SEC’s rulemaking authority, and would be consistent with Supreme Court precedent. Most importantly, it would dramatically improve the current enforcement regime in terms of justice, clarity, efficiency, and coherence. It is sometimes said there is nothing like a good crisis for effecting much needed change. The current media attention and public scrutiny over corporate insiders’ exploitation of rule-sanctioned Trading Plans may be just the crisis to spur the SEC to adopt a more rational and just approach to insider trading enforcement. The outline for such reform is proposed here.

When the Exceptionn is an Element of the Rule: The Structural Status of Investment Treaty Exception Clauses

Despite their increasing popularity in recently concluded investment treaties, the structural status of exception clauses is not well understood. The inconsistent interpretations of these provisions by investment tribunals and by annulment committees has created uncertainty about the nature of states’ treaty commitments to foreign investors and the way exceptions should be dealt with in arbitration. Several claims remain outstanding against Argentina in relation to emergency measures adopted in response to its economic crisis of 2001-2002, in which the application of a treaty exception is likely to be a significant issue for determination. This paper addresses two related questions: (1) whether an exception is a limitation on the scope of the substantive investment obligations such that those obligations do not apply to measures that come within the exception, or whether an exception is an affirmative defence that operates to justify a prima facie breach of the obligations; and (2) the relationship between security and public order exceptions and the defence of necessity at customary international law — in particular, the question whether such clauses are lex specialis manifestations of the defence between the treaty parties. Examining the decided cases and considering the implications of these interpretations of the structural status of exception clauses permits two conclusions, subject always to the text of the provision at issue: that exceptions limit the scope of the treaty obligations, and are not affirmative defences; and that security exceptions are conceptually distinct from the customary defence of necessity. These conclusions have practical implications for the allocation of the burden of proof, but raise questions about the coherence between international investment law and WTO law.

The Government Contractor Defense and Superior Orders in International Human Rights Law

As military functions are increasingly outsourced to corporate contractors, civil courts face adjudicating issues of tort liability arising from actions occurring in war zones. Currently victims of torture and other invasive military techniques used at Abu Ghraib and Guantanamo Bay seek to prevail over issues of sovereign immunity and to hold corporations responsible for the actions of their employees. In response, corporations shield themselves with the government contractor defense, an affirmative defense developed in the context of product liability actions. Recent articles have overwhelmingly suggested that the defense will succeed and often have argued that it should succeed due to issues of sovereign immunity. This article makes a novel claim — a claim which is supported by placing the government contractor defense in the context of international law. This article examines the theoretical foundations of the government contractor defense, and comparing the elements of the defense to the international law of human rights, argues that the government contractor defense is reducible to a claim of “superior orders.” The government contractor defense is attempting to hang on the coattails of sovereign immunity — i.e., the defense is nothing more than an argument that “the government told me to do it.” Indeed, this is what one must argue to present the traditional prima facie case for the government contractor defense: specific orders and compliance with those orders. In light of the analytical similarity between the two defenses, and given the absolute ban of the superior orders defense in international law, the government contractor defense is unacceptable in the context of claims of human rights violations.

The New Tate Letter: Foreign Official Immunity and the Case for a Statutory Fix

Plaintiffs sometimes bring civil lawsuits in U.S. federal courts against officials or ex-officials of foreign governments accused of committing atrocities abroad. In these types of cases, the foreign individuals will almost certainly invoke the affirmative defense of foreign official immunity. In the 2010 decision, Samantar v. Yousuf, the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) — a 1976 statute governing the immunity of foreign states — did not control judicial determination of a foreign individual’s request for immunity. Instead, the Court said that foreign officials may be entitled to immunity as a matter of federal common law. Because of the sensitive foreign policy implications of these types of cases, the executive branch — specifically the State Department — has aggressively asserted control over all foreign official immunity requests. In 2012, in the so-called “Rosenberg Statement” and “Koh Letter,” the Justice Department and Legal Adviser to the State Department, Harold Hongju Koh, declared that (1) federal courts must refrain from deciding any foreign official immunity request that was not first presented to the State Department and (2) it was for the Executive, not the courts, to evaluate whether a foreign individual acted in an official capacity.While the Executive is certainly the branch of government with principal responsibility for foreign affairs, the Koh Letter and Rosenberg Statement represent executive branch overreach into judicial supervision of a federal lawsuit. Judicial deference to the Executive on foreign official immunity calls may be proper; blind obedience is not. In fact, such unilateral control ultimately hurts the State Department itself, which must balance complex and countervailing foreign policy interests. So how should the Executive’s power play be answered? Despite the Supreme Court’s reference to judge- made federal common law in Samantar, this Note argues that the tug-of-war between the executive and judicial branches requires congressional action because the courts are in disarray, with some already having acquiesced to executive control. The current disorder is a striking replay of what happened in the doctrine of foreign sovereign immunity in the late 1950s and 1960s in the aftermath of the 1952 Tate Letter — an earlier dispatch from a different State Department Legal Advisor that sparked such confusion in the federal common law of foreign sovereign immunity that Congress was compelled to intervene with the FSIA. This Note concludes with a model statute that Congress should consider enacting.

Inheriting Your Mother's Eyes, Hair, and Drug Addiction: Protecting The Drug‐Exposed Newborn By Criminalizing Pregnant Drug USE

Despite the absence of statutory criminalization of drug use during pregnancy in the majority of states, states are increasingly recognizing that drug abuse is a massive economic and social problem. Tennessee is the first state to implement a statute that specifically addresses the issue of pregnant drug users by criminalizing those whose use harms their child. Because drug abuse may involve addiction in many cases, the statute provides a defense to those who take reasonable steps to seek help and get clean before the child is born. This Note examines the criminal aspect and impact of drug use during pregnancy and proposes that each state adopt the Tennessee statue, while ensuring pregnant mothers access to drug treatment and assessment through drug courts. Drug use is illegal and drug use during pregnancy should be criminalized as well. Key Points for the Family Court Community: The impact of drug abuse during pregnancy causes unhealthy babies, which creates a financial and social burden on the state. Drug use during pregnancy is associated with many risks including mortality, low birth weight, and Neonatal Abstinence Syndrome. The goal of incentivizing healthy births can be achieved through a specific statute criminalizing drug use during pregnancy. The Tennessee statute provides an affirmative defense for mothers who are actively enrolled in an addiction recovery program before the child is born and successfully complete the program. While still approaching addiction as a disease, this methodology will incentivize pregnant drug users to seek help before birthing an unhealthy child.

UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICES

Abstract:This essay undertakes two tasks: first, to describe the differing mens rea requirements for accomplice liability of both Anglo-American common law and the American Law Institute's Model Penal Code; and second, to recommend how the mens rea requirements of both of these two sources of criminal law in America should be amended so as to satisfy the goals of clarity and consistency and so as to more closely conform the criminal law to the requirements of moral blameworthiness. Three "pure models" of the mens rea requirements for complicity are distinguished, based on the three theories of liability conventionally distinguished in the general part of Anglo-American criminal law. One of these, the vicarious responsibility model, is put aside initially because of both its descriptive inaccuracy and its normative undesirability. The analysis proceeds using the other two models: that of the mens rea requirements for principal liability for completed crimes, and that of the mens rea requirements for attempt liability. Both the common law and the Model Penal Code are seen as complicated admixtures of these two models, the common law being too narrow in the scope of its threatened liability and the Model Penal Code being both too broad and too opaque in its demands for accomplice liability. The normative recommendation of the paper is to adopt the model for the mens rea of complicity that treats it as a form of principal liability, recognizing that the overbreadth of liability resulting from adoption of that model would have to be redressed by adopting a "shopkeeper's privilege" as an affirmative defense separate from any mens rea requirement.

Will Other Circuits Copy the 11th? The Impact of Cambridge and the Determination of Fair Use in Educational Settings

The ability of a person to control their creative and inventive works was so important to the early leaders of the United States of America; the right was enshrined in Article I of the United States Constitution. United States Congress acted to codify the common-law doctrine of fair use through its insertion in the Copyright Act of 1976. However, the language of the statute does not indicate how those who wish to make use of the provision of fair use are to apply the factors, just that the listed factors “shall be considered” on for each “particular work”. The statute gives no direction on how the four factors are to be weighted. Further, the list allows for the consideration of additional factors outside of the list. Even in cases where only the factors are applied, the language of the statute, as the common law doctrine before it, is so open to interpretation that it is “so flexible as virtually to defy definition.” While the Supreme Court of the United States has ruled on three cases furthering and clarifying with each case the nuances of the application of fair use in the last thirty years, the various federal circuits have continued to show variations in the way the four factors, and the Supreme Court of the United States rulings, are applied and weighted in reviewing cases where fair use is used as an affirmative defense. This note reviews a sampling of cases from each of the Federal Circuits where cases involving fair use have been recently decided, the fair use factors discussed, and how the rationale and application of the factors may have varied.

Copyright Genius: The Case for a Fair-Use Classification for User-Generated Online Annotations and Commentary

The Internet Age is here, and many questions regarding the legality of certain online practices have developed. Along with user privacy, copyright law stands front and center. With almost universal access to the Internet, copyrighted works are shared easily, instantly, and extensively. This dynamic perfectly represents the balance that copyright law and fair use of copyrights seeks to strike. While incentivizing innovation and creation through copyright protection is essential, too much protection leaves little room for future works to build off of those creations, which in turn limits secondary innovation. One recently newsworthy online project aims to find that perfect balance that protects authors while also allowing the freedom to build off of those authors’ works in a way that both incentivize creation. That project is Rap Genius, an online, community-based, annotation platform that allows users to comment directly on copyrighted song lyrics. When the site first launched, those lyrics were used freely but also constituted copyright infringement. When threatened with a lawsuit, Rap Genius agreed to pay royalties to the copyright holders of the songs.But does that not sound like a case of overprotecting original authors to the determinant of secondary users? Rap Genius argued that it was protected by fair use, the affirmative defense most often used in copyright lawsuits, and developed its platform under that assumption. However, its agreement to pay royalties seemingly represents an admission that what it was doing was not “fair.” Rap Genius was right — at first — what it does is fair and should be protected by fair use. While lines must be drawn in some areas within the online space, the line for community-based, annotation platforms like Rap Genius should allow infringement to occur behind a fair use protection.

EPA Proposes Eliminating State Regulations as to Start‐up, Shutdown, and Malfunction Emissions

Operating conditions during periods of start‐up, shutdown, and malfunction (SSM) are not normal and often result in unrepresentative emissions that exceed permitted limitations.1 To account for this, the US Environmental Protection Agency's (EPA's) policy concerning exceedances during SSM activities has historically provided that certain exceedances during SSM should not be subject to civil penalties, provided the exceedances are unavoidable and certain other conditions are met. For decades, the EPA has approved state implementation plans (SIPs) containing “civil penalty shields,” also known as affirmative defenses, for unavoidable exceedances during SSM.

Avoiding the Urkel Defense (Did I DoThat?): HowSafecoHas (and Has Not) Begun to Provide an Affirmative Defense against Statutory Willfulness

DID I do that! is a popular catchphrase used by American sitcom character, Steve Urkel. (1) was a clumsy but well-intentioned character on the sit-com Family Matters. At the center of the show's playful gags were Urkel's genius inventions and klutz performances. (2) These gags usually caused to break furniture, injure bystanders, and try the patience of his neighbors, the Winslow family. Translated into litigious American legal culture, Urkel's highly risky conduct was undoubtedly reckless. (3) Federal common law recklessness holds defendants civilly liable for creating unjustifiably high risk of harm that is either known or so obvious that it should be known. (4) Unlike Urkel, defendants must compensate plaintiffs who are injured by their reckless conduct. (5) In Safeco Insurance Company of Am. v. Burr (6) the United States Supreme Court held that when a statute left undefined the standard of willfulness, the objective common law recklessness standard should be applied. In Safeco, the Court applied this objective standard to determine whether insurance companies had engaged in conduct that was reckless under the Fair Credit Reporting Act (FCRA). (7) A class of auto insurance applicants argued that defendant insurers violated FCRA by willfully failing to provide them with notice of an adverse action as required by the FCRA. The Court disagreed, holding that notice provisions under the FCRA were ambiguous about timelines. Legislative history revealed that Congress had not proposed to require insurance companies to notify applicants of unforeseen adverse actions at the time of their initial application. (8) Because the defendant insurance companies interpreted the FCRA's ambiguous statute reasonably, they did not willfully violate the law. At first blush, Safeco appears to be a win for defendants eager to prevail against statutory recklessness, as the Supreme Court has created an affirmative defense that would shift the burden back onto plaintiffs who allege willfulness once defendants have met an objective standard. This article cautions defendants, however, against prematurely crafting a defense around an aggressive reading of Safeco in an attempt to quickly dispose of claims for civil statutory recklessness. Although Plaintiffs must show evidence of a defendant's objectively risky conduct, lurking beneath these cases is the concern that Safeco may have permitted what this article calls the Urkel Under the Defense, regardless whether a defendant knowingly engaged in wrongful conduct, a defendant may attempt to escape liability by showing objectively reasonable conduct. In circumstances beyond the FCRA, circuit courts have hesitated or even refused to apply Safeco if this would give rise to the Defense. For example, most other courts have declined to follow the Eighth Circuit, which dismissed claims against defendants under Safeco as early as the pleadings when they were accused of willfully violating the False Claims Act (FCA), (9) waiting to rule on a defendant's recklessness under the FCA until the parties have established an evidentiary record. This article provides an overview of Safeco and the ways in which appellate courts have extended (or declined to extend) the Supreme Court's holding in Safeco to other federal statutes lacking a statutorily defined standard of willfulness, including the FCA, the Patent Act, the Clean Water Act, the Gun Control Act, the Fair And Accurate Credit Transactions Act, and the Uniformed Services Employment And Reemployment Act. This article argues that defendants can best leverage Safeco as an affirmative defense against undefined statutory willfulness after credible evidence is established in the record. Successful Safeco defenses entail a four-step analysis of the claim by which defendants prove that they: (1) reasonably interpreted the law; (2) objectively aligned with Congress's intent; (3) fairly allocated burdens; and (4) efficiently disposed of the claim as a matter of law. …

Marital Rape: The Long Arch of Sexual Violence Against Women and Girls

If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.State v. Oliver, 70 N.C. 60, 62 (1874)Prologue: The ContextSadly, sexual violence against women and girls remains deeply entrenched and politicized around the globe. Perhaps no other allegation of crime exposes a woman’s credibility to such intense hostility and imposes the penalties of shame and stigma to a more severe degree than alleging rape. Factors irrelevant to sexual violence, including the victim’s choice of clothing, hairstyle, and time of the attack frequently serve as points of searching inquiry, and scrutiny. Such extraneous points of critique further compound an atmosphere of shaming and stigmatization associated with sexual violence, but are seen as crucial in bolstering an affirmative defense and inevitably building the case against rape victims.

Equitable Tolling of the Statute of Limitations in the Federal Tort Claims Act: Brief of Professor Gregory C. Sisk as Amicus Curiae in Support of Respondents, United States v. Wong, No. 13-1074, and United States v. June, No. 13-1075, United States Supreme Court

Although the Federal Tort Claims Act is a clear and unequivocal waiver of federal sovereign immunity, the United States nonetheless insists that the time limitations in the statute be strictly construed in favor of the government. The Government asks for the privileged benefit of an absolute jurisdictional rule that, contrary to ordinary expectations in civil litigation, need not be pleaded as an affirmative defense, cannot be waived, and is not subject to equitable tolling.Since the dawn of the century, however, the Supreme Court’s increasingly common encounters with statutory waivers of federal sovereign immunity have also become more conventional in interpretive attitude. An early jaundiced judicial attitude toward statutes allowing suits against the sovereign has resolved into a greater respect for the legislative pledge of relief to those harmed by their government. The Supreme Court has recognized a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted and applied (with the canon of strict construction fading away and ordinary tools of statutory interpretation prevailing).The plea of the United States for rigid application of time limitations to resist claims of tortious harm undermines the congressional purpose behind a remedial statute expressly making the Federal Government liable in the same way as a private person. The Government’s request contradicts the Court’s line of decisions denying special solicitude to the Government in applying procedural rules such as limitations periods. This amicus curiae brief seeks to place these controversies in the larger context of the Supreme Court’s coalescing jurisprudence of statutory waivers of federal sovereign immunity.

Teaching Criminal Law: Some Useful Cases

Several highly teachable cases for the course in Criminal Law are discussed in detail, divided into those dealing with the mental requirement for crime, the act requirement, and affirmative defenses. These decisions come from both federal and state courts, with a focus on Florida (where the author, now retired, taught for over three decades).

The Helpless Protecting the Vulnerable? Defending Coerced Mothers Charged with Failure to Protect

In a number of jurisdictions failure to protect a child from violence renders a person liable if a duty is owed to the child. This duty presumes the defendant has the capacity to act positively to protect the victim, which has implications for defendants who are also subjected to violence or coercion. In the understandable haste to prosecute and prevent child abuse, there is a risk of neglecting the realities of other vulnerable people. Consequently the criminal justice system ought to reject a binary approach to victims and offenders, recognising that defendants may also be victims and that mothers, due to the coercive control exerted by intimate partners, may also be vulnerable. In New Zealand there are no statutory or common law defences that operate to exculpate a mother charged with failing to protect her child from the violence of another. This article argues for the creation of an affirmative defence that takes into account the totality of a coerced mother's circumstances in considering whether she has, in fact, failed her child.