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This is a new periodic feature of your Con Law blog. It is a good place to post comments that don't necessarily fit under any of the topical posts. For instance, if you have any thoughts about the "Reality Check" questions, this is where you'd put them.
Posted by The Professor at February 11, 2006 01:26 PM | TrackBackAs to whether the plaintiffs have standing in the ACLU case, here is my analysis: First, as for an injury-in-fact, the plaintiffs have a discreet injury because it is specific, namely, that the Program is substantially impairing their ability to obtain information from sources abroad, to locate witnesses, to represent their clients, to conduct scholarship, and to engage in advocacy, thereby inhibiting constitutionally protected communications with others. Second, their injury is palpable or (legally cognizable) because to a fair degree of certainty, their speech has been "chilled" by the Program. The facts indicate they have a well-
founded belief their communications are being intercepted and such allegations are enough here because the Program is in fact interfering with their work. As for causation, we can say more likely than not
that ‘but for The Program managed by the NSA, Plaintiffs’ work would
not be interfered with. Clearly if suspicions of domestic spying
were alleviated, the Plaintiffs’ work would be facilitated and thus
more efficient. As for redressability, plaintiffs are likely seeking
to enjoin defendants from continued use of The Program. It seems if
the court enjoins defendants from doing so, the plaintiffs’ injury
would be remedied. Lastly, the first amendment rights of the
plaintiffs (comprised of individuals, members of a various groups and
the groups themselves) are personal rights that are allegedly being
violated. Overall, the requirements for standing are met here.
http://www.cnn.com/2006/LAW/02/22/scotus.mail.ap/index.html
Is this the case we referred to earlier in the course?
The case, ACLU v. National Security Agency, was part of the Reality Check and can be found under the Resources tab.
Posted by: Shirin Z. at February 25, 2006 11:25 AMIn Tennessee v. Hood, imposition Tennessee's sovereign immunity to the bankruptcy code, as a creditor, is an affront to Hood's Due Process and contract rights. The court found that Hoods claim was not even "against a state," but even if it had been, other Constitutional considerations should still bar TSAC's sovereign immunnity claim.
TSAC aqcuired Sally Mae's right's as a creditor by assignment, and should not be able to append its separate rights as a sovereign to the creditor's rights it seeks to enforce as an asignee. To do so would bundle extra requirements on the debtor simply because a party of a different nature than the one with whom she originally contracted bought the loan. Seeking enforcement of a loan agreement as an assignee, TSAC should only be able to assert the rights assigned by that transaction.
Whether or not a creditor is subject to the US Bankruptcy code is an immensly important consideration to a debtor looking to procure a loan. Hood could discharge a debt to Sally Mae under the bankruptcy code, so long as it is an undue hardship, but she could not discharge such a debt if TSAC were the direct creditor (TSAC argues), ignoring the in rem nature of a bankruptcy proceding for the moment. Such a fact must have enter into a reasonable calculation of from whom Hood should barrow her student loans. Hood contracted a loan with Sally Mae, understanding that the Bankruptcy code could ultimately define her rights and obligations in repaying the loan. TSAC is claiming that they can unilaterally alter Hood's obligations to pay by purchasing an assignment of the loan from Sally Mae, thus rendering the Bankruptcy Code inapplicable. This seems to violate Hood's right to contract, by altering her loan agreement in a material way, as well as her due process rights.
To rule otherwise would ultimately render all student loans undischargeable. Here's how: Private lenders would simply always assign their loans to state institutions to be guarenteed repayment. State institutions buying the loans would, in turn, invoke sovereign immunity to a bankruptcy discharge of the debt. No student could ever discharge a student loan under this regime.
This approach directly undermines Congress' intent in section 523 of the bankruptcy code, and Congress' explicit abrogation of state sovereignty in 11 USC 106a.