“He Took It Like a Man”: Harvey Weinstein’s Conviction and the Limits of Discrimination Law

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

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East Bay Sanctuary Covenant v. Trump

Dockets: 18-17274, 18-17436

Opinion Date: February 28, 2020

Judge: Paez

Areas of Law: Immigration Law

An interim final rule, coupled with the presidential proclamation that was issued on the same day, that strips asylum eligibility from every migrant who crosses into the United States along the southern border of Mexico between designated ports of entry, conflicts with the text and congressional purpose of the Immigration and Nationality Act (INA). The Ninth Circuit affirmed the district court's grant of a temporary restraining order and a subsequent grant of a preliminary injunction enjoining enforcement of the interim final rule. Given the preliminary stage of the appellate process at which the motions panel issued the order denying the government's stay motion and the motion panel's stated reservations, the Ninth Circuit panel treated the motions panel's decision as persuasive, but not binding. The panel also held that the Organizations' claims were justiciable and they have otherwise satisfied Article III standing requirements, and the Organizations' claims continue to fall within the zone of interests of the INA and of the regulatory amendments implemented by the rule. On the merits of the preliminary injunction, the panel held that the district court correctly concluded that the rule is substantively invalid because it conflicts with the plain congressional intent instilled in 8 U.S.C. 1158(a), and is therefore not in accordance with law under the Administrative Procedure Act (APA). The panel explained that section 1158(a) provides that migrants arriving anywhere along the United States's borders may apply for asylum, but the rule requires migrants to enter the United States at ports of entry to preserve their eligibility for asylum. Therefore, the rule was effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress in section 1158(a). The panel held that, even if the text of section 1158(a) were ambiguous, the rule fails at the second step of Chevron because it is an arbitrary and capricious interpretation of that statutory provision. Furthermore, the panel held that the rule is unreasonable in regard to the United States's treaty obligations under the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees. The panel briefly addressed the procedural arguments raised by the parties; held that the Organizations demonstrated a sufficient likelihood of irreparable injury to warrant injunctive relief; held that the public interest weighs sharply in the Organizations' favor; and held that the district court did not abuse its discretion in enjoining enforcement of the rule.

Innovation Law Lab v. Wolf

Docket: 19-15716

Opinion Date: February 28, 2020

Judge: William A. Fletcher

Areas of Law: Immigration Law

The Ninth Circuit affirmed the district court's grant of a preliminary injunction setting aside the Migrant Protection Protocols (MPP), under which non-Mexican asylum seekers who present themselves at the southern border of the United States are required to wait in Mexico while their asylum applications are adjudicated. After determining that the individual plaintiffs had standing and the organizational plaintiffs had standing, the panel followed East Bay Sanctuary Covenant v. Trump, Nos. 18-17274 and 18-17436 (9th Cir. Feb. 28, 2020), argued on the same day as this case, in which the court held that a motions panel's legal analysis, performed during the course of deciding an emergency motion for a stay, is not binding on later merits panels. On the merits, the panel held that plaintiffs had showed a likelihood of success on their claim that the MPP is inconsistent with 8 U.S.C. 1225(b). The panel explained that a plain-meaning reading of section 1225(b), as well as the Government's longstanding and consistent practice, made clear that a section (b)(1) applicant may not be "returned" to a contiguous territory under section 1225(b)(2)(C), which is a procedure specific to a section (b)(2) applicant. Furthermore, plaintiffs showed a likelihood of success on their claim that the MPP does not comply with the United States's treaty-based non-refoulement obligations codified in 8 U.S.C. 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with section 1225(b), the panel held that it should be enjoined in its entirety. Plaintiffs have successfully challenged the MPP under section 706(2)(A) of the Administrative Procedure Act, and the MPP directly affects immigration into this country along the United States's southern border. The panel also held that the other preliminary injunction factors favored plaintiffs, and that the district court did not abuse its discretion in setting aside the MPP. Accordingly, the panel lifted the emergency stay imposed by the motions panel.