Preview: Thomas v. Metropolitan Life Insurance Co.: Semantics, Fiduciary Duty, and an Outdated Distinction

Jeremy Liles[1]

As the costs of basic needs such as education, healthcare, and retirement have increased, many financial responsibilities have shifted from government and employers to individuals. Consequently, individual investors must now manage a dizzying array of complex investment and insurance options. Yet brokers and advisers who appear to offer similar investment services to retail customers may have vastly different fee and compensation structures, and may be held to vastly different standards of care. These distinctions are neither obvious nor meaningful to the average retail investor seeking to insure his or her family against disaster, invest for retirement, or prepare for the costs of a child’s higher education.

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Preview: Arizona Christian School Tuition Organization v. Winn: Reconsidering Flast’s Exception to the Rule Against Taxpayer Standing and Establishing the Tax Credit Distinction

Edward R. Shaoul[1]

The United States Supreme Court’s decision in Flast v. Cohen has been a source of controversy in American jurisprudence. Over several decades, courts and commentators have wrestled with the meaning, scope, and historical underpinnings of the Flast exception to the general rule against taxpayer standing in Establishment Clause cases. In Flast, the Court ruled that taxpayers could demonstrate standing when (1) their suit challenged congressional taxing and spending authority, as opposed to regulatory expenditures, and (2) their claim alleged a specific constitutional infringement. The Court recently reconsidered Flast’s exception in Arizona Christian School Tuition Organization v. Winn.

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Preview: The Federal Arbitration Act, The Preemption Doctrine, and the Impact of AT&T Mobility L.L.C. v. Concepcion

Kristopher Kleiner[1]

In April of 2011, the Supreme Court’s decision in AT&T Mobility L.L.C. v. Concepcion added to a line of jurisprudence, dating back to its 1984 decision in Southland Corp. v. Keating, in which the Court has repeatedly held that the Federal Arbitration Act (“FAA”) preempts state laws invalidating arbitration agreements.

In Concepcion, the Court’s decision invalidated the Ninth Circuit’s “Discover Bank Rule,” which states that a class action waiver in a consumer contract having the effect of exculpating a party with superior bargaining power is unconscionable and unenforceable.

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U.S. v. Ludwig: An assault on individual rights

William Ross[1]

The Fourth Amendment’s prohibition against unreasonable search and seizures is one of the most fundamental rights guaranteed in the United States Constitution.[2] However, this right is not absolute and courts have traditionally limited its breadth in order to protect other liberties.[3] As a result, courts have developed several exceptions that allow for search and seizure if reasonable suspicion and probable cause are satisfied.[4]

While both the Supreme Court and Tenth Circuit have addressed reasonable suspicion and probable cause, the analysis of what satisfies these exceptions is heavily fact-dependent and thus has not been developed as a bright-line rule.[5] As a result, courts have seen an influx of defendants challenging the validity of reasonable suspicion and probable cause searches. In United States v. Ludwig,[6] the Tenth Circuit sought to clarify these issues.

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Preview: Prost v. Anderson and the Enigmatic Savings Clause of § 2255: When is a Remedy by Motion “Inadequate or Ineffective?”

Bryan Florendo[1]

As a convicted man sits imprisoned, his appeals exhausted, the Supreme Court issues a decision that casts doubt over the man’s culpability. Has Congress granted that man an adequate remedy by which to challenge his detainment? Is he rightfully due a second collateral appeal in light of the newly issued statutory interpretation?

The Tenth Circuit faced these issues in Prost v. Anderson. There, the court analyzed 28 U.S.C. § 2255, a statute providing habeas corpus-equivalent, post-conviction relief. The court was asked to delineate the circumstances under which the § 2255 remedial mechanism is inadequate or ineffective. In a 2-1 decision, the court held that the remedy afforded by § 2255 is “inadequate or ineffective,” and petitioners are thereby due a second or subsequent collateral challenge, only when the argument brought in a subsequent motion could not have been raised in the initial § 2255 motion.

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