The Invisible Man and His Visible Victim

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a movie some have described as one of the best of 2020, The Invisible Man, and describes how the story in the movie offers possibilities for envisioning accountability for domestic violence and other crimes that often receive dismissive treatment under the heading of “he said/she said.” Professor Colb briefly describes the plot of the movie (including spoilers), and explains why the movie is so revelatory.

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United States v. Parkerson

Docket: 19-10780

Opinion Date: January 12, 2021

Judge: E. Grady Jolly

Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's 120-month sentence for failing to register as a sex offender, holding that defendant's sentence is both procedurally and substantively reasonable. In regard to defendant's claims of procedural error, the court held that the district court did not err in considering a contested account contained in the PSR that was drawn from a police report, because this evidence bears sufficient indicia of reliability. Furthermore, the district court did not reversibly err by considering the opinion of a TDCJ psychologist that defendant's likelihood of reoffending was high. The court gave deference to the district court's application of the 18 U.S.C. 3553(a) factors and concluded that defendant's sentence was not substantively unreasonable in light of his history of sexual violence and considerations for public safety.

Swales v. KLLM Transport Services, LLC

Docket: 19-60847

Opinion Date: January 12, 2021

Judge: Don R. Willett

Areas of Law: Labor & Employment Law

Plaintiffs filed a collective action under the Fair Labor Standards Act (FLSA) against KLLM over a minimum wage labor dispute. The district court granted plaintiffs' certification request, applying the widely used Lusardi test, a two-step method for certifying a collective. The Fifth Circuit declined to delineate the district court's notice-sending discretion under the Lusardi test, rejecting Lusardi's two-step certification rubric. The court explained that Lusardi has no anchor in the FLSA's text or in Supreme Court precedent interpreting it. The court noted that the word "certification," much less "conditional certification," appears nowhere in the FLSA. Instead, the court embraced interpretive first principles: (1) the FLSA's text, specifically section 216(b), which declares (but does not define) that only those "similarly situated" may proceed as a collective; and (2) the Supreme Court's admonition that while a district court may "facilitat[e] notice to potential plaintiffs" for case-management purposes, it cannot signal approval of the merits or otherwise stir up litigation. The court concluded that these are the only binding commands on district courts. Accordingly, the court vacated the district court's grant of conditional certification and remanded for further proceedings.