#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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Gomez Fernandez v. Barr

Docket: 19-70079

Opinion Date: August 13, 2020

Judge: Milan Dale Smith, Jr.

Areas of Law: Criminal Law, Immigration Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's request for deferral of removal under the Convention Against Torture (CAT). The panel held that the federal generic definition of murder is "the unlawful killing of a human being with malice aforethought" under 18 U.S.C. 1111(a); because federal law defines the term "human being" to exclude an unborn fetus, California Penal Code section 187(a), which criminalizes the unlawful killing of an unborn fetus, is broader than the federal generic definition; section 187(a) is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus; and, under the modified categorical approach, petitioner's section 187(a) second degree murder conviction under section 187(a) for the unlawful killing of a human being is an aggravated felony under the INA. Accordingly, substantial evidence supported the denial of deferral and petitioner is removable as charged.

Booker v. C.R. Bard, Inc.

Docket: 18-16349

Opinion Date: August 13, 2020

Judge: Eric D. Miller

Areas of Law: Drugs & Biotech, Personal Injury, Products Liability

The Ninth Circuit affirmed the district court's judgment for plaintiff in an action alleging product-liability claims based on injuries she sustained from a medical device -- the G2 intravascular filter -- designed and manufactured by Bard. The jury found Bard liable for negligent failure to warn, awarding $1.6 million in compensatory damages and $2 million in punitive damages. The panel held that, because Bard's preemption defense presented a purely legal question, it would consider the merits of the district court's denial of its motion for summary judgment. The panel held that the preemption argument fails because Booker's claim rests on an asserted state-law duty to warn of the risks posed by the particular design of Bard's G2 Filter, and the FDA has not imposed any requirements related to the design of that device or how a device of that design should be labeled. In regard to the failure-to-warn claim, the panel held that Georgia courts had not adopted a categorical prohibition on basing a failure-to-warn claim on the absence of a comparative warning, and the district court correctly allowed the jury to decide the adequacy of the warning. Finally, the panel held that the evidence was adequate to support the jury's award of punitive damages.

Enriquez v. Barr

Docket: 13-72934

Opinion Date: August 13, 2020

Judge: Per Curiam

Areas of Law: Immigration Law

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal and affirming the IJ's denial of his application for cancellation of removal. Because the panel is bound by its decision in Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015) (per curiam), the panel held that petitioner was not "admitted" under 8 U.S.C. 1229b(a)(2) when he was approved as a derivative beneficiary of his mother's self-petition under the Violence Against Women Act (VAWA). The panel held that neither the approval of the Form I-360 listing petitioner as a derivative beneficiary, nor his subsequent receipt of deferred action and work authorization, satisfies the statutory definition of "admission" under the INA. In this case, petitioner was not "admitted in any status" under controlling precedent until 2008; he committed a crime of moral turpitude in 2012, and he is therefore unable to satisfy the requirement of seven years of continuous residence after admission for eligibility for cancellation of removal under section 1229b(a). Accordingly, the BIA properly dismissed petitioner's appeal from the IJ's denial of relief.