Reflections on the Movement in California to Repeal the State’s Ban on Affirmative Action

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.

Read More

Ruckelshaus v. Cowan

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2770

Opinion Date: June 26, 2020

Judge: Barrett

Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics, Trusts & Estates

Their father set up a trust for the benefit of Elizabeth and Thomas, giving the siblings equal interests; if either died without children, the other would receive the remainder of the deceased sibling’s share. Thomas approached Elizabeth after their father's death, wanting to leave a portion of his share to his wife, Polly. In 1998, Elizabeth retained the defendants to terminate the trust; the representation letter made no mention of a life estate for Polly or a subsequent remainder interest for Elizabeth. The settlement agreement did not mention Polly or a life estate, nor did it restrict what either sibling could do with the trust funds. The agreement contained a liability release and stated that it was the only agreement among the parties. In 1999, Elizabeth signed the agreement and the petition to dissolve the trust. In 2000, the probate court granted the petition. Elizabeth and Thomas each received more than a million dollars. Thomas died in 2009 without children; his will devised his assets to Polly. When Polly died in 2015, she left her estate to her children. Elizabeth filed a malpractice claim. The Seventh Circuit affirmed summary judgment for the defendants, holding that the two-year Indiana statute of limitations began running no later than 2000 and that if Elizabeth had practiced ordinary diligence, she could have discovered then that her wishes had not been followed.

Laughlin v. Perry

Court: Supreme Court of Missouri

Docket: SC98012

Opinion Date: June 30, 2020

Judge: George W. Draper, III

Areas of Law: Professional Malpractice & Ethics

The Supreme Court reversed the judgment of the circuit court affirming a jury's verdict in favor of Respondent on his legal malpractice claim, holding that public defenders are entitled to official immunity. Appellants were public defenders who were assigned to represent Respondent at his criminal trial. Appellant was found guilty. The Supreme Court later issued a writ of habeas corpus concluding that the circuit court lacked jurisdiction to prosecute Respondent. Respondent sued Appellants alleging legal malpractice and breach of fiduciary obligation for their failure to assert the jurisdictional challenge during their representation of him. The jury returned a verdict in Respondent's favor. Appellants filed a motion for judgment notwithstanding the verdict alleging that they were shielded from liability due to official immunity. The circuit court overruled the motion. The Supreme Court reversed, holding that public defenders have official immunity because they are public employees whose official statutory duties concern the performance of discretionary acts.

Pulito v. Board of Nursing

Court: Oregon Supreme Court

Docket: S066569

Opinion Date: July 2, 2020

Judge: Nelson

Areas of Law: Civil Procedure, Government & Administrative Law, Professional Malpractice & Ethics

The issue this case presented for the Oregon Supreme Court's review centered on a final order of the Oregon State Board of Nursing (the board) and the meaning of the term “time limitations” in ORS 183.645(1). That statute required the chief administrative law judge (ALJ) to assign a different ALJ to a contested case on written request from a party, subject to applicable “time limitations” that the chief ALJ has established by rule for submitting such requests. The chief ALJ established OAR 471-060-0005, under which the chief ALJ evaluated the timeliness of a request by determining whether a party had a “reasonable opportunity” to make an earlier request. Licensee Rebecca Pulito challenged a preliminary decision of the chief ALJ that denied her request for a different ALJ. In that decision, the chief ALJ determined that licensee had failed to take advantage of a “reasonable opportunity” to make an earlier request. The contested case proceeded on the merits, and the board issued a final order revoking licensee’s nursing license. The Court of Appeals affirmed without opinion. Licensee then petitioned the Oregon Supreme court for review. Licensee argued OAR 471-060-0005 was invalid because it did not impose a “time limitation” as authorized by ORS 183.645(1). Alternatively, she contended the chief ALJ erred in applying OAR 471-060-0005 because her request for a different ALJ was made within a reasonable time. The Supreme Court concluded OAR 471-060-0005 was invalid as written and that the error in denying licensee’s request for a different ALJ required reversal. Because that ruling was dispositive, the Supreme Court did not reach licensee’s alternative argument that the chief ALJ erred in applying the rule. The final order was reversed and the matter remanded for a new hearing.