Faculty News 28 - College of Law

Kaplan files amicus brief in Fifth Circuit retirement investing case

Professor Richard Kaplan was one of six law professors who filed an amicus curiae brief in the U.S. Court of Appeals, Fifth Circuit case State of Utah et al. v. Julie Su et al. The brief was filed in support of a Biden administration rule allowing retirement advisers to consider environmental, social and governance issues when making decisions for clients, with the professors arguing the move aligns with fiduciary duties to minimize risks and maximize returns for clients. The brief also urged the appeals court to reject a Utah-fronted challenge that argues the rule is inconsistent with the Employee Retirement Income Security Act and investment professionals’ obligations.

Read coverage of the case from Law360 and Bloomberg.

Delaware Bankrupcty Court relies on scholarship from Lawless in opinion

In the U.S. Bankruptcy Court for the District of Delaware, Judge Craig T. Goldblatt relied heavily upon the scholarship of Professor Robert Lawless in his opinion for Yellow Corporation’s Chapter 11 plan. Citing “Reframing Arbitration & Bankruptcy,” Judge Goldblatt ruled that Yellow Corp. must resolve issues in bankruptcy court rather than in arbitration. Speaking to the American Bankruptcy Institution about the decision, Lawless explained “Judge Goldblatt cut through the rhetoric and got it right.”

Read the Bankruptcy Court opinion online.
Read the American Bankruptcy Institute’s examination of the ruling.

Brubaker talks Bayer, Texas Two-Step bankruptcy with Bloomberg

Professor Brubaker speaks during a live podcast recording at the College of Law

Bayer AG is considering employing the controversial legal tactic known as the Texas Two-Step bankruptcy to address the thousands of lawsuits alleging that its Roundup weedkiller causes cancer. The strategy, which involves splitting assets and liabilities into separate units, with the unit burdened by liabilities being placed into bankruptcy to facilitate a global settlement, is an area of expertise for Professor Ralph Brubaker. Speaking to Bloomberg, he suggested that although the courts may ultimately refuse this tactic, bankruptcy could provide Bayer with time to propose a settlement while halting ongoing litigation.

Read the full Bloomberg article online.

Finkin testifies before Vermont legislature and is quoted by Massachusetts Supreme Court

Professor Matthew Finkin’s scholarly expertise was recently in demand in the Northeast. On Wednesday, March 20, Professor Finkin testified before a committee of the Vermont Legislature concerning a proposal to amend the state’s constitution to add a worker rights provision. The proposal would follow Illinois in enshrining the right of collective bargaining into the state’s constitution. After his testimony, the committee voted unanimously to recommend the proposal for inclusion into the state constitution.

On March 14, the Supreme Court of Massachusetts held that the academic profession’s understanding of the meaning of academic freedom and the “economic security” of tenure had to be considered in deciding the allowability of a university’s change in salary policy for tenured faculty. The Court’s decision resisted on the analysis of an amicus brief on behalf of a nationwide group of tenured faculty submitted by Professor Finkin. The Court expressly rejected contrary precedent in New York, citing Finkin’s published criticism of the New York decision.

Mazzone pens op-ed on Trump for the News-Gazette

Former President Donald Trump’s bid for a second term is generating a lot of constitutional questions, which is keeping Professor Jason Mazzone busy. Writing at the News-Gazette, Mazzone explores the question of whether a state has the power to exclude a candidate from the ballot because of the insurrection act. He examines what the U.S. Supreme Court ruled in Trump v. Anderson and where his understanding of the Constitution differs from the justices.

Read his full opinion piece on the News-Gazette website.

Law360 quotes Brubaker on mass tort claims and nondebtor parties

The sun rises over the Illini Union. The Illini Union, which was dedicated in 1941, serves students and the campus in many ways, including housing the Illini Union Hotel, a credit union, a convenience store, information services, CITES (Campus IT) instructional facility, quick-service restaurants, a bowling alley and arcade, student performance spaces, and office space for Registered Student Organizations, student government, Student Legal Services, Student Tenant Union, LGBT Resource Center, and Union administration.

A recent $2.5 billion bankruptcy settlement between the Boy Scouts of America and childhood sexual abuse survivors seemed to put a close to an awful chapter in the victims lives, until the settlement was halted by the U.S. Supreme Court due to concerns over the legality of mandatory releases of claims against nondebtor third parties. Writing about the settlement, Law360 highlights broader debates about the fairness of handling mass-tort claims in bankruptcy courts, where settlements may favor one side over the other and quotes Professor Ralph Brubaker, and expert in this area. The article explores the history of such releases, their impact on mass-tort litigation, and ongoing legal disputes over their validity.

Read the full article from Law360.

Mazzone quoted in multiple outlets on Trump’s ballot case in Illinois

Cook County Judge Tracie Porter’s decision to remove Former President Donald Trump from the 2024 ballot made Illinois one of three states barring him from the ballot. Similar to cases in other states, Trump’s lawyers argued that the insurrection clause doesn’t apply to the president, and the Trump campaign criticized Porter’s decision. Professor Jason Mazzone, a constitutional theory expert, shared his expertise on the topic with Courthouse News and Crain’s Chicago Business, noting prior to their decision that the U.S. Supreme Court might overturn such rulings.

Read the Courthouse News article and the Crain’s Chicago Business article online.

Quadrangle profiles Illinois Scholars at Risk program

Quadrangle, the magazine of the College of Liberal Arts and Sciences, profiled the Illinois Scholars at Risk program in its Spring 2024 issue. The profile highlights the work done by the program, chaired by Professor Colleen Murphy. The program offers assistance to scholars who face danger at home, and the Illinois group has brought seven scholars to campus from Afghanistan, Cameroon, Guatemala, Lebanon, and Ukraine. “It is incredibly rewarding to see colleges and departments from across campus support colleagues from across the globe facing acute risks and to hear from scholars about the difference the program has made in their lives,” Murphy said.

Read the full profile in the Spring 2024 issue.

U.S. Bankruptcy Court cites Brubaker in decision denying dismissal of asbestos case

Fall view of Illini Union from north of Green Street.

The United States Bankruptcy Court Western District of North Carolina recently denied a motion to dismiss the bankruptcy of companies implicated in asbestos liability cases, citing and quoting from several articles by Professor Ralph Brubaker. The case involves Texas Two-Step mass-tort bankruptcy, a topic in which Brubaker has researched and published extensively. The decision cites to and quotes from “On the Nature of Federal Bankruptcy Jurisdiction: A General Statutory and Constitutional Theory,” from the William & Mary Legal Review; “Explaining Katz’s New Bankruptcy Exception to State Sovereign Immunity: The Bankruptcy Power as a Federal Forum Power,” from the American Bankruptcy Institute Legal Review; and “The Texas Two-Step and Mandatory Non-Opt-Out Settlement Powers,” in the Harvard Law School Bankruptcy Roundtable.

Read the decision online.

Amar, Mazzone, and Shapiro author article on Disney’s speech-retaliation case

In early 2024, a federal district court judge dismissed a lawsuit filed by the Disney Corporation against Florida officials for alleged retaliation against Disney’s opposition to certain Florida laws and policies by altering the board that regulates the land where Disney World is located. Professors Vikram Amar, Jason Mazzone, and Lena Shapiro collaborated in an article for Justia Verdict examining the complex constitutional issues raised by this decision. “If government is trying to retaliate against you because of your past speech, doesn’t that violate your First Amendment rights regardless of whether the retaliation takes the form of speech regulation itself?” the professors wrote.