by: Peter J. Gallagher (@pjsgallagher)
Please check out an article I wrote for law360.com on the U.S. Supreme Court's recent decision in Jesinoski v. Countrywide Home Loans. Here is the opening paragraph:
On Jan. 13, 2015, the U.S. Supreme Court released its opinion in Jesinoski v. Countrywide Home Loans (No. 13-684) and resolved a circuit split on an important issue arising under the Truth in Lending Act, 15 U.S.C. §1601-1677 (“TILA”). Under TILA, a borrower has the right to rescind certain loans for up to three years after the loan is consummated. To exercise this right, borrowers must “notify the creditor” of their intention to rescind the loan within three years. The question in Jesinoski was whether a borrower satisfies this requirement by sending written notice to a lender of its intent to rescind or whether the borrower must file a lawsuit within the three-year statutory period. In recent years, a circuit split had developed over this issue. In Jesinoski, the Supreme Court resolved this split, holding that written notice is sufficient.
Check out the rest of the article here.
by: Peter J. Gallagher (@pjsgallagher)
The two or three of you Those of you who regularly read this blog or are familiar with some of the posts and articles I have written know that I am a fan of Justice Scalia. Not necessarily his judicial philosophy, but his written opinions – both for the court and in dissent – which are almost always entertaining and compelling even if you disagree with his conclusions. This morning, the Supreme Court released its opinion in Whitfield v. United States, where Justice Scalia, writing for a unanimous court demonstrated again why he is one of the Supreme Court’s most engaging authors.
Whitfield was a tragic case that reads like it was ripped from a law school exam question. Whitfield was fleeing police after a botched robbery when he entered Mary Parnell’s home through an unlocked door. “Once inside, he encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away . . . ). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby.”
Whitfield was found guilty of a number of federal offenses, including one that makes it a crime for a suspect who is “avoiding or attempting to avoid apprehension” to “force any person to accompany him without the consent of such person.” Whitfield appealed his conviction, arguing that this statute requires “substantial” movement and his movement with Parnell did not qualify. The Fourth Circuit disagreed and Whitfield appealed to the Supreme Court. In a unanimous opinion written by Justice Scalia, the Supreme Court affirmed the Fourth Circuit’s decision and upheld Whitfield’s conviction.
Continue reading “If You Ever Wondered What “Accompany” Means, Justice Scalia Has Your Answer”
by: Peter J. Gallagher
Here is a link to one of my articles that was recently published on Law360.com. The original title was "'Swimmers Only Between Flags' Or The Problem With 'Plain Meaning'" but the editors shortened it by removing the part about the swmmers. The sign that inspired the article (if "inspired" is not too obnoxious) is at the top of this post, and here is the opening paragraph of the article:
I was at the beach recently and passed a sign that read “Swimmers Only Between Flags.” Being a lawyer, I could not simply nod knowingly at the sign and keep walking. Instead, I thought: “well, that is ambiguous.” Did it mean that swimmers were only allowed between the flags (and not outside them) or that only swimmers were allowed between the flags (and not, for example, surfers or boogie boarders)? I mentioned it to my wife, who told me to make sure I put sunscreen on the kids. But, the sign stuck with me that day, and again when I read the Supreme Court’s recent decision in Abramski v. United States (No. 12-1493), a decision that involved competing interpretations of the “plain meaning” of a statute regulating the purchase of guns.
I hope you enjoy the article.
by: Peter J. Gallagher
Somewhat lost amid the flurry of opinions handed down by the United States Supreme Court at the end of the 2010-11 session was its grant of certiori in PPL Montana LLC v. Montana (the link takes you to the SCOTUSblog page for the case, which contains the underlying opinion and the cert documents). PPL Montana, Montana's largest private producer of hydroelectric power, appealed a decision from the Montana Supreme Court that, among other things, required the company to pay rent for its use of Montana rivers. The Montana Supreme Court concluded that the Missouri, Madison, and Clark Fork Rivers were owned by the state because the rivers as a whole were navigable when Montana entered the Union. The company argued, unsuccesfully, that the navigability of a river must be determined "section by section," rather than in the entirety, and that the portions of the rivers that the company uses are not navigable.
The case is seen by many commentators as another opportunity for the U.S. Supreme Court to address the notion of "judicial takings" that it recently addressed in Stop the Beach Renourishment v. Flordia Dept. of Environmental Protection. (Broadly speaking, the question presented in that case was whether a judicial decision can qualify as a "taking" – think eminent domain – that requires the person from whom property is taken to be compensated under the U.S. Constitution.) In Stop the Beach, Chief Justice Roberts and Justices Scalia, Kennedy, and Alito held that there was such a thing as a judicial taking (although no member of the court believed there was a taking in the case itself). Several other justices suggested that they might be persuaded to join these four in a future decision, but that Stop the Beach was not the right case to do so because there was no taking and thus the court did not need to reach the broader, essentially theoretical, question of whether judicial action could ever amount to a taking. The PPL Montana case may provide the opportunity for at least one of these justices to join the four who are already willing to recognize judicial takings. Stay tuned for more details as the case develops.