Oprah Interview as Truth Commission – Part II: What Counts as Success?

LESLEY WEXLER

In this second of a series of columns, Illinois Law professor Lesley C. Wexler continues analogizing Oprah’s interview with Meghan and Harry to a truth commission and describes some goals against which we might measure the success of a truth commission. Professor Wexler proposes such measures as (1) whether the commission finishes its mandate and widely disseminates its findings, (2) whether it establishes a definitive narrative of the relevant abuses, and (3) whether it serves as catharsis for individual victims. She suggests that although some initial facts on the ground are negative, reform and reconciliation are still possible.

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Supreme Court Rules that Claims of Nazi-Era Expropriation of Jewish Property Are Barred by Germany’s Sovereign Immunity

SAMUEL ESTREICHER, JULIAN KU

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by the U.S. Supreme Court, holding that the doctrine of sovereign immunity bars claims based on Nazi-era expropriation of Jewish property. Professors Estreicher and Ku argue that the unanimous decision in that case, Germany v. Philipp reflects a now-solid trend of Roberts Court decisions limiting the reach of U.S. law and jurisdiction to stay within the territory of the United States while also avoiding controversial and unsettled interpretations of international law.

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Young v. Hawai'i

Docket: 12-17808

Opinion Date: March 24, 2021

Judge: Jay S. Bybee

Areas of Law: Civil Rights, Constitutional Law

The en banc court affirmed the district court's dismissal of an action brought by plaintiff, challenging Hawai'i's firearm licensing law, Hawai'i Revised Statutes section 134-9(a). Section 134-9(a) requires that residents seeking a license to openly carry a firearm in public must demonstrate "the urgency or the need" to carry a firearm, must be of good moral character, and must be "engaged in the protection of life and property." Plaintiff applied for a firearm-carry license twice in 2011, but failed to identify "the urgency or the need" to openly carry a firearm in public. Instead, plaintiff relied upon his general desire to carry a firearm for self-defense. After his applications were denied, he challenged Hawai'i's firearm-licensing law under the Second Amendment and the Due Process Clause of the Fourteenth Amendment. After careful review of the history of early English and American regulation of carrying arms openly in the public square, the en banc court concluded that Hawai'i's restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. The panel explained that the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense. Therefore, the en banc court held that Hawai'i's firearms-carry scheme is lawful. Finally, the en banc court rejected plaintiff's contention that the regulation is invalid as a prior restraint, and rejected as premature plaintiff's due process argument that the regulation does not provide adequate process to challenge the denial of a carry-permit application.

Acevedo Granados v. Garland

Docket: 19-72381

Opinion Date: March 24, 2021

Judge: Richard R. Clifton

Areas of Law: Immigration Law

The Ninth Circuit granted in part and denied in part a petition for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The petition is based on petitioner's fear that, if returned to El Salvador, he would face persecution or torture on account of his membership in a particular social group, defined based on his intellectual disability. The panel concluded that the agency misunderstood petitioner's proposed social group, and thus granted the petition for review with respect to the claims for asylum and withholding of removal. The panel explained that the BIA and IJ treated the term "intellectual disability" as if it were applied to a layperson. However, that term as used in petitioner's application referred to an explicit medical diagnosis with several specific characteristics. Recognized that way, the panel reasoned that the clinical term "intellectual disability" may satisfy the "particularity" and "social distinction" requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, the panel must remand to the agency for fact-finding on an open record to determine if the group is cognizable. Finally, the panel concluded that denial of CAT relief by the agency was supported by substantial evidence.

United States v. Boyd

Docket: 19-55585

Opinion Date: March 24, 2021

Judge: Bennett

Areas of Law: Tax Law

The Ninth Circuit reversed the district court's judgment in an action brought by the United States against taxpayer for tax penalties and interest involving her failure to report foreign financial accounts. In this case, taxpayer did not timely file a Report of Foreign Bank and Financial Accounts form (FBAR) disclosing her foreign financial accounts in the United Kingdom. The IRS found that taxpayer violated the reporting requirements of 31 U.S.C. 5314 and imposed multiple penalties under 31 U.S.C. 5321(a)(5)(A) based on her belated submission of a single FBAR. The panel held that section 5321 authorizes the IRS to impose only one non-willful penalty when an untimely, but accurate, FBAR is filed, no matter the number of accounts. In this case, taxpayer was required to file one FBAR for the 2010 calendar year by June 30, 2011 and failed to do so; she committed one violation and the IRS concluded that her violation was non-willful; and thus the maximum penalty for such a violation "shall not exceed $10,000."