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Articles 1 - 30 of 255
Full-Text Articles in Law
The Limits Of Executive Power, Robert J. Reinstein
The Limits Of Executive Power, Robert J. Reinstein
American University Law Review
Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to …
Turning The Faucet Back On: The Future Of Mccain-Feingold's Soft-Money Ban After Davis V. Federal Election Commission, Kevin J. Madden
Turning The Faucet Back On: The Future Of Mccain-Feingold's Soft-Money Ban After Davis V. Federal Election Commission, Kevin J. Madden
American University Law Review
No abstract provided.
Product Placement Or Pure Entertainment? Critiquing A Copyright-Preemption Proposal, Kristen E. Riccard
Product Placement Or Pure Entertainment? Critiquing A Copyright-Preemption Proposal, Kristen E. Riccard
American University Law Review
No abstract provided.
Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal
Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal
American University Law Review
No abstract provided.
Deed Of Mistrust?: The Use Of Land Transfers To Evade The Establishment Clause, David C. Peet
Deed Of Mistrust?: The Use Of Land Transfers To Evade The Establishment Clause, David C. Peet
American University Law Review
No abstract provided.
Sirius Mistake: The Fcc's Failure To Stop A Merger To Monopoly In Satellite Radio, Leigh M. Murray
Sirius Mistake: The Fcc's Failure To Stop A Merger To Monopoly In Satellite Radio, Leigh M. Murray
American University Law Review
No abstract provided.
Assuring Consistency And Uniformity Of Precedent And Legal Doctrine In The Areas Of Subject Matter Jurisdiction Entrusted Exclusively To The U.S. Court Of Appeals For The Federal Circuit: A View From The Top A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Foreword, Paul R. Michel
American University Law Review
No abstract provided.
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
American University Law Review
This Comment argues that the Court’s holding in Medellin modifies Jackson’s tripartite taxonomy by effectively eliminating the “zone of twilight.” By requiring a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” the Court is essentially extending the first category—executive action with the express or implied authorization of Congress—to cover the middle “zone of twilight,” at odds with the very purpose of the zone. Additionally, the Comment argues that Hamdan establishes Congress’s “disabling” power in the third category, which, combined with Medellin’s interpretation, crates a new standard for Jackson’s taxonomy, one moor similar …
Federal Tails And State Puppy Dogs: Preempting Parallel State Wage Claims To Preserve The Integrity Of Federal Group Wage Actions , Rachel K. Alexander
Federal Tails And State Puppy Dogs: Preempting Parallel State Wage Claims To Preserve The Integrity Of Federal Group Wage Actions , Rachel K. Alexander
American University Law Review
This article addresses the flood of litigation washing through United States federal courts on wage-and-hour group actions and the divergent corresponding district-court rulings. The rapidly growing split in authority relates to the fact that federal law requires that a group wage action be maintained as an opt-in "collective action" while state wage laws may be pursued through an opt-out "class action." With little circuit-court authority on the matter, the parties' arguments and courts' analysis fall all over the map. Despite the myriad of arguments in support of and in opposition to maintaining a state-law opt-out class action in the same …
Misuse Of The Less Restrictive Alternative Inquiry In Rule Of Reason Analysis, Gabriel A. Feldman
Misuse Of The Less Restrictive Alternative Inquiry In Rule Of Reason Analysis, Gabriel A. Feldman
American University Law Review
The rule of reason articulated by the Supreme Court in 1918 in Chicago Board of Trade has long been the target of scorn and ridicule by scholars and judges. The rule, which is used to determine the legality of restraints under Section 1 of the Sherman Act, instructs courts to identify and balance a restraint's competitive effects - restraints that are net procompetitive are legal. Critics argue that the rule is easy to state but impossible to apply, as it asks courts to identify the unidentifiable and balance the unbalanceable. Despite the steady criticism, the rule has remained the exclusive …
Contemplating Cruel And Unusual: A Critical Analysis Of Baze V. Rees In The Context Of The Supreme Court's Eighth Amendment Proportionality Jurisprudence, Katie Roth Heilman
Contemplating Cruel And Unusual: A Critical Analysis Of Baze V. Rees In The Context Of The Supreme Court's Eighth Amendment Proportionality Jurisprudence, Katie Roth Heilman
American University Law Review
This Comment argues that, while the Court’s modern Eighth Amendment jurisprudence has gradually reduced the circumstances under which the death penalty may be imposed, this trend is inconsistent with the Court’s unwillingness to critically examine the specific procedures states use to execute, even in the face of growing concerns over the humaneness of such procedures. Part I gives a historic overview of the Court’s limited method-of-execution jurisprudence, followed by a review of the Court’s recent line of rulings on challenges to the death penalty’s proportionality. Part II analyzes Baze within the broader context of the Court’s Eight Amendment proportionality jurisprudence. …
Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek
Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek
American University Law Review
Courts have developed several non-technical “secondary considerations” to help judges and juries in patent litigation decide whether a patent meets the crucial statutory requirement that a patent be non-obvious. This Article proposes a tenth secondary consideration to help judges and juries: increased market power. If a patent measurably increases its holders’ market power in the market into which it sells products or services, then that increase should weigh in favor of finding the patent non-obvious. Using increased market power incorporates the predictive benefits of several other secondary considerations, while often increasing the accuracy and availability of evidence. It would provide …
2008 Trademark Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries , David M. Kelly, Stephanie H. Bald
2008 Trademark Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries , David M. Kelly, Stephanie H. Bald
American University Law Review
In 2008, the United States Court of Appeals for the Federal Circuit issued eight trademark decisions and designated one of those eight decisions as precedential. These numbers are significantly lower than in recent years. The cases consist of appeals from the Trademark Trial and Appeal Board (“TTAB”), the United States Court of International Trade, and the United States Court of Federal Claims. Of the eight trademark decisions, four focused on substantive issues and four primarily involved procedural issues. The Federal Circuit generally adopted the findings of the lower tribunals, affirming all but one of the eight decisions on appeal. The …
2008 Government Contract Law Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries, Sheryl Floyd, William M. Jack, Heather Kilgore Weiner, Deanna M. Remmes
2008 Government Contract Law Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries, Sheryl Floyd, William M. Jack, Heather Kilgore Weiner, Deanna M. Remmes
American University Law Review
In 2008, the U.S. Court of Appeals for the Federal Circuit issued 242 precedential opinions. Of these, twenty-two were government contract cases. This article discusses all twenty-two precedent-setting opinions involving government contract law issues, setting forth the relevant facts, the Federal Circuit’s analysis, and, where appropriate, the ramifications of these cases. The decisions are grouped into the following categories: jurisdiction, bid protests/preferences, contract formation, contract interpretation, contract performance/breach, assignment of claims, damages, attorneys’ fees, and attorney sanctions.
Symposium: The Civil Rights Roots Of Tinker's Disruption Tests, Kristi L. Bowman
Symposium: The Civil Rights Roots Of Tinker's Disruption Tests, Kristi L. Bowman
American University Law Review
This past spring marked the fortieth anniversary of Tinker v. Des Moines Independent Community School District, the landmark student speech case in which the Supreme Court held that three students were protected by the First Amendment when they wore black armbands in their Des Moines, Iowa public schools to protest the Vietnam War. Looking at Supreme Court precedent alone, it would seem as though the Tinker tests were created out of whole cloth: the substantial or material disruption, reasonable anticipation of such disruption, and rights of others tests did not have much of a basis in earlier Supreme Court decisions. …
Symposium: Tinker's Midlife Crisis: Tattered And Transgressed But Still Standing, Clay Calvert
Symposium: Tinker's Midlife Crisis: Tattered And Transgressed But Still Standing, Clay Calvert
American University Law Review
This article examines the erosion of the strength of the Supreme Court’s 1969 opinion in Tinker v. Des Moines Independent Community School District. Indicators of decline range from Justice Thomas’ stunning call in Morse v. Frederick for overruling Tinker to recent lower-court opinions using Tinker to censor off-campus expression posted on the Internet. The article explores possible reasons for the decline and abuse of Tinker and it makes suggestions for its reinvigoration. Part I highlights and analyzes other indicators of the erosion, decline, and abuse of Tinker. Part II then explores some possible reasons and explanations for the midlife crisis …
Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr.
Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr.
American University Law Review
This article discusses an emerging legal trend that may expand schools’ abilities to protect their students. It focuses on Morse v. Frederick, a 2007 decision popularly known as the “Bong Hits 4 Jesus” case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use. Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy’s concurring opinion, permit schools to regulate student expression that may threaten student welfare. Justices Alito and Kennedy sought to limit the majority’s holding to speech involving illegal drug …
Symposium: Tinker At Forty: Defending The Right Of High School Students To Wear Controversial Religious And Pro-Life Clothing, Jay Alan Sekulow, Erik M. Zimmerman
Symposium: Tinker At Forty: Defending The Right Of High School Students To Wear Controversial Religious And Pro-Life Clothing, Jay Alan Sekulow, Erik M. Zimmerman
American University Law Review
This Article argues for broad First Amendment protection for “controversial” religious and pro-life student expression. The vast majority of religious and pro-life clothing is no more likely to create an actual disturbance that substantially disrupts school functions than a peace armband worn during Vietnam, the student expression upheld in the seminal case of Tinker v. Des Moines Independent Community School District. Section I of this Article discusses several Supreme Court student speech cases with an emphasis on their applicability to situations involving high school students who wear “controversial” religious and pro-life clothing. This section argues that Tinker’s substantial disruption test—not …
Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte
Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte
American University Law Review
The central proposition of this Article is that the school/student relationship is a distinctive one, and that student speakers on school property stand in a fundamentally different posture than do pamphleteers on the public sidewalk. This unique relationship has been recognized by the courts, but only selectively, where the uniqueness works to the disadvantage of the speaker. It is time that courts acknowledge that, because students are “captive” in school for the best hours of their day, and because students have a legally enforceable right to be on school grounds for purposes that expressly include the exchange of ideas, student …
Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl
Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl
American University Law Review
This Article will examine how (and how far) we have fallen from the legal precedent and educational principles behind Tinker, specifically the increasingly remote standards courts have used to chip away (and sometimes sledgehammer) the speech rights of teachers. To this end, the Article will consider some of the unique and fundamental characteristics associated with a profession that has at its core the mission of encouraging speech, raising questions, and teaching the ability to think—in short, “expressive activities.” It will also look at how the increasingly restrictive standards do not reflect fully the challenges posed by the advent of new …
Out Of Jail... But Still Not Free To Litigate - Using Congressional Intent To Interpret 28 U.S.C. Sec. 1915(B)'S Application To Released Prisoners, Julia Colarusso
Out Of Jail... But Still Not Free To Litigate - Using Congressional Intent To Interpret 28 U.S.C. Sec. 1915(B)'S Application To Released Prisoners, Julia Colarusso
American University Law Review
This Comment argues that, based on the Prison Litigation Reform Act (PLRA)’s purpose and legislative history, prisoners who fulfilled the statute’s payment obligations while incarcerated should be entitled to apply for traditional in forma pauperis (IFP) status under § 1915(a)(1) upon release. Part I traces the historical development of prisoners’ right of access to the courts and its ties to the IFP doctrine. It then examines the PLRA’s many amendments to the federal IFP statute. Part II explains the divergent readings that circuit courts currently apply to § 1915(b). After analyzing the statute’s plain language and legislative history, Part III …
The Nlra Defamation Defense: Doomed Dinosaur Or Diamond In The Rough?, Kati L. Griffith
The Nlra Defamation Defense: Doomed Dinosaur Or Diamond In The Rough?, Kati L. Griffith
American University Law Review
With the National Labor Relations Act of 1935 (NLRA), Congress intended to provide private-sector employees with the right to organize collectively for their mutual aid and protection in the workplace. However, the NLRA faces a tsunami of criticism, much of which highlights its inadequacies with respect to protecting collective activity among employees. In light of the NLRA’s myriad limitations, some scholars have developed promising proposals to identify new legal bases for protecting collective activity among employees outside of the NLRA. This Article redirects our gaze back to the NLRA’s potential to protect some forms of collective activity. It elaborates the …
Transcript: Advocacy Before Regional Human Rights Bodies: A Cross-Regional Agenda, Victor Abramovich, Charlotte De Broutelles, Santiago Canton, Paolo Carozza, Andrew Drzemczewski, Jonathan Fanton, Leonardo Franco, Felipe González, Claudio Grossman, Elizabeth Abi-Mershed, Bahame Tom-Mukirya Nyanduga, Diane Orentlicher, Fatsah Ouguergouz, Diego Rodriguez-Pinzón, Sergio Garcia Ramirez, Manuel Ventura Robles, Pablo Saavedra
Transcript: Advocacy Before Regional Human Rights Bodies: A Cross-Regional Agenda, Victor Abramovich, Charlotte De Broutelles, Santiago Canton, Paolo Carozza, Andrew Drzemczewski, Jonathan Fanton, Leonardo Franco, Felipe González, Claudio Grossman, Elizabeth Abi-Mershed, Bahame Tom-Mukirya Nyanduga, Diane Orentlicher, Fatsah Ouguergouz, Diego Rodriguez-Pinzón, Sergio Garcia Ramirez, Manuel Ventura Robles, Pablo Saavedra
American University Law Review
No abstract provided.
Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker
Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker
American University Law Review
Mary Beth Tinker recounts her upbringing and her family’s involvement in important issues of their day. Tinker discusses how her family’s commitment to social justice was shaped by her parents religious values, and how this shaped their commitments to civil rights, ultimately leading to their protesting ongoing injustices. In particular, Tinker discusses how she, her siblings, and friends wore black armbands calling for a Christmas Truce in the Vietnam War and how the case that went before the Supreme Court was one of a series of events in her family’s journey for equality.
Common-Sense Construction Of Unfair Claims Settlement Statutes: Restoring The Good Faith In Bad Faith, Victor Schwartz, Christopher E. Appel
Common-Sense Construction Of Unfair Claims Settlement Statutes: Restoring The Good Faith In Bad Faith, Victor Schwartz, Christopher E. Appel
American University Law Review
This Article proposes to balance the scale by providing principles for the reasonable construction of bad-faith and unfair claims settlement practices in statutes applicable to insurance. Part I examines the history and development of bad-faith law, and discusses the common structure of statutes giving rise to badfaith settlement claims. Part II presents general principles courts may apply to resolve an action alleging bad faith, and specific principles courts may apply to address common issues with many states’ statutes. Part III then evaluates the public policy involved in applying such principles to first-party claims where the insured suffers an injury and …
2008 International Trade Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries, Jarrod Goldfeder
American University Law Review
The United States is the world’s largest importing country, with nearly $2 trillion in imports of goods during 2007. Given the ever- increasing volume of international trade, the United States has put in place an intricate body of laws designed to regulate the flow of goods and has created federal agencies responsible for the enforcement of those laws, including U.S. Customs and Border Protection (“CBP”), the U.S. Department of Commerce (“Commerce”), the U.S. International Trade Commission (“ITC” or “Commission”), and the Office of the U.S. Trade Representative (“USTR”). Each agency is charged with different responsibilities over the fair and efficient …
Student Editorial: Fight Fire With Fire: The Icc Should Be More Aggressive In Pursuing Crimes Of Sexual Violence, Meredith Owen
Student Editorial: Fight Fire With Fire: The Icc Should Be More Aggressive In Pursuing Crimes Of Sexual Violence, Meredith Owen
American University Criminal Law Brief
No abstract provided.
Juveniles Locked Up For Life For Non-Homicides: Cruel & Unusual Or An Appropriate Punishment?, Julie Swaney
Juveniles Locked Up For Life For Non-Homicides: Cruel & Unusual Or An Appropriate Punishment?, Julie Swaney
American University Criminal Law Brief
No abstract provided.
From State Of California V. Scott Peterson To State Of Utah V. Mark Hacking Willmore States Adopt Fetal Protection Laws?, April Walker
From State Of California V. Scott Peterson To State Of Utah V. Mark Hacking Willmore States Adopt Fetal Protection Laws?, April Walker
American University Criminal Law Brief
No abstract provided.
An Ambiguous Request For Counsel Before And Not After A Miranda Waiver: United States V. Rodriguez, United States V. Fry And State V. Blackburn, Harvey Gee
American University Criminal Law Brief
No abstract provided.