#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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Elliott v. Pacific Western Bank

Docket: 18-17421

Opinion Date: August 12, 2020

Judge: Paez

Areas of Law: Bankruptcy

The Ninth Circuit affirmed the district court's judgment affirming the bankruptcy court's dismissal of a chapter 7 debtor's adversary proceeding seeking to exempt retirement funds from the bankruptcy estate. In dismissing the adversary complaint for failure to state a claim, the bankruptcy court held that debtor could not reclaim his retirement funds because he filed the bankruptcy petition after the execution lien had been satisfied. The panel held that debtor failed to state a claim under 11 U.S.C. 522(h), which allows a debtor to step into the role of the bankruptcy trustee and avoid certain transfers of exempt property made before the filing of the bankruptcy petition. The panel also held that, because the judicial lien was satisfied prior to the petition date, it was not voidable under section 522(f). Therefore, because it was not voidable, debtor could not succeed on his separate section 522(f) claim nor establish that the transfer of his IRA funds was a preferential transfer under section 547. Having failed to allege the elements of a section 547 preferential transfer, the panel held that the bankruptcy court correctly concluded that debtor failed to state a claim under section 522(h).

City of Portland v. United States

Dockets: 18-72689, 19-70490, 19-70123, 19-70124, 19-70125, 19-70136, 19-70144, 19-70145, 19-70146, 19-70147, 19-70326, 19-70339, 19-70341, 19-70344

Opinion Date: August 12, 2020

Judge: Mary Murphy Schroeder

Areas of Law: Communications Law, Government & Administrative Law

The Ninth Circuit granted in part and denied in part petitions for review of three FCC orders issued in 2018 concerning the newest generation of wireless broadband technology known as "5G." Two of the orders, known as the Small Cell Order and Moratoria Order, spell out the limits on local governments' authority to regulate telecommunications providers. The third order, known as the One Touch Make-Ready Order, was intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles. The panel held that, given the deference owed to the agency in interpreting and enforcing this important legislation, the Small Cell and Moratoria Orders are, with the exception of one provision, in accord with the congressional directive in the Telecommunications Act of 1996, and not otherwise arbitrary, capricious, or contrary to law. The exception is the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. The panel held that to the extent that provision requires small cell facilities to be treated in the same manner as other types of communications services, the regulation is contrary to the congressional directive that allows different regulatory treatment among types of providers, so long as such treatment does not "unreasonably discriminate among providers of functionally equivalent services." The panel also held that the FCC's requirement that all aesthetic criteria must be "objective" lacks a reasoned explanation. The panel upheld the third order, holding that the FCC reasonably interpreted Section 224 of the Act as a matter of law, and the order is not otherwise arbitrary or capricious. The panel rejected petitioners' challenges to four secondary aspects of the order regarding rules for overlashing, preexisting violations, self-help, and rate reform.

Syed v. Barr

Docket: 17-71727

Opinion Date: August 12, 2020

Judge: Bumatay

Areas of Law: Criminal Law, Immigration Law

The Ninth Circuit denied a petition for review of the BIA's decision and held that petitioner's conviction under California Penal Code 288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable. The panel explained that not all of section 288.3(a)'s enumerated offenses involve moral turpitude, and thus the statute is not categorically a crime involving moral turpitude. However, the panel held that the statute is divisible; petitioner pleaded guilty to section 288.3(a) with the specific intent of violating section 288; and thus he was properly deemed removable as an alien convicted of a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(i). The panel also distinguished Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), from petitioner's circumstances in this case.