Law Commons^™

Polluters Paradise: The Dark Canon Of The United States Supreme Court In Pollution Control Law, Oliver A. Houck

American University Law Review

This Article is the last in a series of four articles exploring the Supreme Court's destructive legacy on environmental protection in the United States. This Article specifically explores the relationship between the Supreme Court and pollution through the lens of four landmark cases. Perhaps unsurprisingly, these cases together evince the Court’s tendency to distort both facts and law to reach outcomes that will benefit industrial polluters and emitters alike.

In the first case, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the Court disregarded EPA regulations banning the discharge of toxic materials into waters to approve a pollution-heavy mining operation. …

In Memoriam Professor Emeritus Egon Guttman, Claudio Grossman, Walter A. Effross, David V. Snyder

American University Law Review

This Issue of the American University Law Review is dedicated to the memory of Egon Guttman, longtime professor at American University Washington College of Law and an esteemed member of the American University Law Review’s Faculty Advisory Committee.

An Apple A Day Keeps Educational Malpractice Lawsuits At Bay: Applying Principles Of Medical Malpractice's "Locality Rule" To Deconstruct The Academic Abstention Doctrine, Madeline Bergstrom

American University Law Review

Education serves as one of the most impactful and purposeful tools in American society. However, the United States education system suffers from many shortcomings and failures, and as a result, may occasionally lead to student harm from the actions of educators or academic institutions. These claims commonly allege that educators and academic institutions engaged in negligent behavior, and students or parents bringing these claims are often looking for legal relief through the judicial system. These claims are typically labeled as educational malpractice, and historically, courts have almost uniformly rejected these claims as non-cognizable actions.

This Comment argues that this judicial …

Modelling Pretrial Detention, Melissa Hamilton

American University Law Review

Pretrial detention has become normative in contemporary criminal justice, rather than the exception to a rule of release for individuals not convicted of any crime. Even the opportunity for release with a bond amount often eludes the many individuals who are unable to afford, to pay. Defendants detained, pending trial suffer numerous negative consequences to their own legal cases, such as being more likely to feel pressured to plead guilty and to receive a prison sentence. The high numbers of those detained appear to disproportionately impact minorities and. have contributed to mass incarceration. As a. result, of these issues, the …

Game Theory Optimized Fraud: How The Unlawful Internet Gambling Enforcement Act Created A Virtually Riskless Environment For White Collar Crime In Online Poker, Jeffrey Woolf

Upper Level Writing Requirement Research Papers

No abstract provided.

Climate Change And The Right To Health: A Threat Multiplier, Alejandra Ureta Melcon

Upper Level Writing Requirement Research Papers

This comment argues that climate change threatens fundamental human rights recognized by the United Nations High Commissioner for Human Rights. Therefore, the United Nations should adopt the standards set forth in cases like Sacchi v. Argentina and Teitiota v. New Zealand to denote climate change as a threat to the right to health under Articles 11 and 12 of the 1966 International Covenant on Economic, Social, and Cultural Rights. Climate change is already having monumental impacts on access to food and access to clean water and sanitation, which this comment demonstrates by analyzing two country case studies: The Central African …

America’S New Death Sentence: Lack Of Action To Protect Incarcerated People From Covid-19 Amounts To Cruel And Unusual Punishment, Jane Manwarring

American University Journal of Gender, Social Policy & the Law

Laddy Curtis Valentine is a 69-year-old man suffering from high blood pressure, hypertension, nerve damage from a stroke, atrophy and weakness in the upper-left extremity, and limited ability to grip with his left hand. Richard Elvin King is a 73-year-old man with diabetes, high blood pressure, chronic kidney failure, hyperlipidemia, and kidney disease. Mr. Valentine and Mr. King are just two of the 1,132 men imprisoned in the Wallace Pack Unit (“the Pack Unit”) in Grimes County, Texas. Like Mr. Valentine and Mr. King, approximately 800 incarcerated men housed in the Pack Unit are over the age of sixty-five, and …

Denouncing The Revival Of Pre-Roe V. Wade Abortion Bans In A Post-Dobbs World Through The Void Ab Initio And Presumption Of Validity Doctrines, Nora Greene

American University Journal of Gender, Social Policy & the Law

The United States Supreme Court voted to overturn Roe v. Wade in a leaked draft of Dobbs v. Jackson Women’s Health Organization. Written by Justice Alito and joined by four of the other conservative justices, the decision describes Roe as “egregiously wrong from the start” and blatantly overrules the landmark holding and its prodigy, Planned Parenthood v. Casey. In their state codes, nine states—Alabama, Arizona, Arkansas Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin— have unrepealed criminal abortion bans enacted before Roe. These bans prohibit abortion at any point in pregnancy unless to preserve the life of the pregnant person …

Legal Issues In Tribal E-Commerce, Adam Crepelle

American University Business Law Review

No abstract provided.

Empirical Evidence On Robot Taxation: Literature Review And Technical Analysis, Bret N. Bogenschneider

American University Business Law Review

The literature on robot taxation has continued to expand since 2018 with numerous articles now referring to empirical evidence. The evidence presented in prior studies comprises abstract modeling and statistical pattern reviews with no statistically significant findings reported to date. Notably, one article is an advocacy piece by a tech lobbyist who at one point purchased priority Google results for the search "robot taxation." In some cases, technical errors are sufficient to reverse the stated results. Examples of error in empirical analyses include (i) motivated reasoning, such as the failure to model simpler or best explanations; (ii) lack of causal …

Recent Law Reforms In Eu Sustainable Finance: Regulating Sustainability Risk And Sustainable Investments, Felix Mezzanotte

American University Business Law Review

Responding to increasingly degrading environmental and social conditions, the European Commission has fostered important legal and regulatory reforms to achieve sustainable finance objectives in Europe. However, these reforms are numerous, complex, and fast-paced. They have proved difficult to grasp and contextualize, while adding to the intricacies of an already highly sophisticated EU legal and regulatory regime. This Article outlines and examines such reforms with the purpose of providing necessary insights into the current state of EU law and regulation in the area of sustainable finance. The first part of the Article conceptualizes the meaning of sustainability risk and of sustainable …

A Second Chance At Choice?: Challenging Abortion “Reversal” As Law And Medical Practice, Christen Hammock Jones

American University Journal of Gender, Social Policy & the Law

Introduction.

I felt like my soul was crying and pleading with the Lord on behalf of my baby’s life. I know God heard my prayer because Elizabeth called me back with the answer to my prayers: Patsy and Willie from the San Juan Diego center. I went to see Patsy the next morning at 7 am, less than 12 hours since I took the first pill. Of course, I was nervous, but I decided I had to trust the solution that God had provided me with. The morning I was scheduled to go and see Patsy, she called me and …

Stereotyping Evidence: The Civil Exception To The Federal Rape Shield Law And Its Embedded Sexual Stereotypes, Ramona Albin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Poor Gabriel: How Ambiguous State Immunity Policies For Child Protection Agency Workers Fail Children Of Color, Samiksha Manjani

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Toxic Therapy: Examining The Constitutionality Of Conversion Therapy Bans In Light Of Otto, Kathleen Stoughton

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Evolving Beyond Reasonable Accommodations Towards "Off-Shelf Accessible" Workplaces And Campuses, Karla Gilbride

American University Journal of Gender, Social Policy & the Law

One of the hallmarks of the Americans with Disabilities Act (“ADA”), which prohibits discrimination in the workplace on the basis of disability, is that it defines “discrimination” to include “not making reasonable accommodations to the known mental or physical limitations of an otherwise qualified individual with a disability.” This concept of reasonable accommodation was seen as innovative in two ways. It recognized that employers must sometimes take affirmative steps or make adaptations to afford individuals with disabilities an equal opportunity to apply for and perform jobs. And it identified the failure to take such affirmative steps as a type of …

Why Does The Federal Government Get A Pass? Applying Best Practices In Child Protection To The Circumstances Of Migrant Children And Families, Randi Mandelbaum

American University Law Review

For too long, the United States has had a separate child-caring system for migrant children and families that operates alongside our domestic child welfare systems. The latter is a robust system focused on the principles of safety, wellbeing, and permanency; while the former flouts constitutional protections, separates children from parents, and perpetuates a system that is detaining children, warehousing them in large jail-like settings at worst, and sheltering them in large congregate care facilities at best. Children are being harmed, some irreparably.

Yet, if our child welfare laws reflect what we know to be proper standards for caring for vulnerable …

Misinformation About Marijuana: Commercialization, Consolidation, And The New First Amendment, David Angelatos

American University Law Review

From “Reefer Madness” to “This Is Your Brain on Drugs,” Americans have lived through decades of anti-cannabis propaganda. Legalization is poised to turn this information environment on its head, unleashing a torrent of corporate-funded, pro-cannabis misinformation that regulators cannot prevent or dispel. This appears to be a problem caused by the Supreme Court’s creation and expansion over the past fifty years of First Amendment protections for corporate and commercial speech. Although these doctrines contribute substantially to the problem, this Article shows how it originates in lax antitrust policy rather than expansive First Amendment jurisprudence.

If Congress follows current legalization trends …

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

American University Law Review

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …

"Youth Matters": Why Demanding The Same Heightened Level Of Mitigation In Juvenile Life Without Parole Sentencing Proceedings As Is Required In Capital Sentencing Proceedings Is The Only Constitutional Option, Margaret Helein

American University Law Review

Donnell Wilson was only sixteen years old when he was sentenced to life in prison without the possibility of parole (JLWOP). Wilson appealed his life sentence, claiming that his defense counsel was ineffective for failing to investigate and present mitigation evidence pertaining to his youth and background when he was facing the possibility of a life sentence. While the state appellate court agreed, the state supreme court did not. The court in Wilson’s case concluded that the standards for presentation of mitigation evidence at sentencing as laid out by the American Bar Association’s Criminal Justice Standards for the Defense Function …

The War In Ukraine And The Legitimacy Of The International Criminal Court, Yvonne Dutton, Milena Sterio

American University Law Review

The news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC or “Court”). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (“OTP”) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions.

This Article argues that the unique situation surrounding state support for …

Ganging Up On Terrorism: Transnational Gangs And Tier Iii Terrorist Organizations, Adam S. Domitz

American University Law Review

The Immigration and Nationality Act sets forth three distinct tiers of terrorist organizations. Unlike Tiers I and II, Tier III does not require official designation in the Federal Register by cabinet level officials. Instead, the tier calls for case-by-case adjudication by executive branch employees such as asylum officers and immigration judges. Noncitizens who engage in certain activities with or who have certain ties to any of the three tiers of organizations are inadmissible to the United States and barred from most forms of immigration relief, subject to limited exceptions. Nevertheless, in recent years, a variety of entities—including the Trump administration—have …

The Rise Of The 'Immigrant-As-Injury' Theory Of State Standing, Jennifer Lee Koh

American University Law Review

Despite the Biden Administration’s efforts to hold itself out as a humane alternative to the excesses of immigration enforcement during the Trump presidency, federal courts have prevented a number of immigration policy changes from going forward during the first half of the Biden era. States serve as the primary plaintiffs in these lawsuits, which have impacted cornerstone immigration policies such as the termination of exclusionary border policies, the restoration of Deferred Action for Childhood Arrivals (DACA), and the application of enforcement priorities. During the 2022-23 term, the Supreme Court will hear certain states’ challenge to immigration enforcement priorities in United …

Taxing Sports, John T. Holden, Kathryn Kisska-Schulze

American University Law Review

Sports are no longer mere games. In today’s money-driven culture, they have cultivated into a lucrative business enterprise where everyone—whether professional or amateur; owner or player; coach or spectator—stands to make significant money. Modern sports have also morphed into a landscape encompassing both the traditional athletic events and the more novel esports and daily fantasy sports (DFS) arenas. Across all these physical, digital, and biological spheres, sports revenues are being measured in terms of billions. It thus stands to reason why taxes have become a progressively critical discussion point within U.S. professional and collegiate sports, the video gaming world, and …

First Do Not Harm: Revisiting Meriwether V. Hartop And Academic Freedom In Higher Education, Inara Scott, Elizabeth Brown, Eric Yordy

American University Law Review

repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government—Congress and …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Limits And Opportunities Of Offensive Litigation, Howard M. Wasserman, Charles W. Rhodes

American University Law Review

The Texas Heartbeat Act, enacted in 2021 as Senate Bill 8 (S.B. 8), prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how S.B. 8's reliance on exclusive private enforcement at the expense of public enforcement creates procedural and jurisdictional …

The Truth About Design Patents, Sarah Burstein, Saurabh Vishnubhakat

American University Law Review

Design patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area— including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the U.S. Court of Appeals for the Federal Circuit, and we update the findings of those studies. Second, we consider a set of …

Unjustly Vilified Trips-Plus:? Intellectual Property Law In Free Trade Agreements, Marketa Trimble

American University Law Review

Intellectual property (IP) law provisions of free trade agreements (FTAs) have attracted much criticism. Critics have argued that FTA negotiators, succumbing to the lobbying of various stakeholders, have eliminated or significantly limited many of the flexibilities that multilateral treaties had created, forced stronger IP protection onto developing countries, and fragmented international IP law. While agreeing with a great deal of the criticism expressed by others, this Article departs from the typical vilification of FTAs by identifying and analyzing the positive features of FTA IP provisions that are worth replicating and expanding in future FTAs. These positive features include provisions concerning …

Review Of Veterans Law Decisions Of The Federal Circuit, 2021 Edition, Angela Drake, Yelena Duterte, Stacey-Rae Simcox

American University Law Review

In the past year, the United States Court of Appeals for the Federal Circuit (Federal Circuit) continued to define boundaries for the Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims (Veterans Court). These boundaries align more closely with congressional intent, especially with regard to the jurisdiction of the Veterans Court and the internal operations of the agency.

This Area Summary discusses eight major areas in which the Federal Circuit articulated important changes in veterans law. First, the Federal Circuit revisited the important and veteran-friendly “benefit of the doubt” rule in Lynch and modified it. …

Year In Review: The Federal Circuit's 2021 Government Contract Law Decisions, Morgan W. Huston, Nicholas Feldstern, Camille Chambers

American University Law Review

It has been almost forty years since Congress created the United States Court of Appeals for the Federal Circuit with the goal of ensuring uniform and definitive judicial interpretations of the law applicable to Federal Government contracting. Because, like that of the Court of Claims before it, the precedent of the Federal Circuit guides how procurement laws are interpreted, it is important for practitioners and those whose livelihoods depend on government contracting to pay attention to the decisions that the Federal Circuit issues.