Law Commons^™

Legislator-Led Prayer: A Harmless Historical Tradition Or An Unconstitutional Establishment Of Religion?, Krista Ellis

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Taking The Fifth: How The Tenth Circuit Determined The Right Against Self-Incrimination Is "More Than A Trial Right" In Vogt V. City Of Hays, Daniel J. De Cecco

Pepperdine Law Review

In Vogt v. City of Hays, the United States Court of Appeals for the Tenth Circuit ruled that the Fifth Amendment right against self-incrimination is more than a trial right and applies to the use of compelled statements in probable cause hearings as well as in criminal trials. While the Self-Incrimination Clause states that the right applies “in a criminal case,” there is a circuit split regarding the definition of a “criminal case.” The Tenth Circuit joined the Second, Seventh, and Ninth Circuits in finding that the right against self-incrimination applies to more than a trial, relying on the common …

Second Amendment: D.C. Circuit Court Creates Split On The Constitutionality Of Good-Reason Laws, Madeleine Giese

SMU Law Review

No abstract provided.

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Tejas N. Narechania

Reply Brief. Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Petition For A Writ Of Certiorari, Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

The Future Of Class Action Waivers In Employment Agreements: Lewis Creates A Framework For The United States Supreme Court, Meghan Gonyea

Arbitration Law Review

No abstract provided.

Doscher: The Second Circuit Frees Itself From Its Prior Look Through Approach, Fueling A Circuit Split, Peter Nelson

Arbitration Law Review

No abstract provided.

To Be A "Whistleblower," Or Not To Be A "Whistleblower? " That Is The Question-Whether 'Tis Nobler In The Mind Of The Courts To Suffer For Reporting Wrongdoing To The Sec Or Employers Internally: Examining The Recent Circuit Split Regarding The Definition Of A Whistleblower Under Dodd-Frank, Luke I. Landers

The Journal of Business, Entrepreneurship & the Law

Under the current state of the law, the circuit courts are split over whether an employee must report corporate wrongdoing directly to the Securities and Exchange Commission (SEC), or report wrongdoing to a company’s management in order to receive whistleblower protection under Dodd–Frank. The resolution of this circuit split not only will have implications for American employees caught in situations similar to the fiction above, but also will provide a prime opportunity for the Supreme Court to clarify how courts are to understand the interpretive and deferential relationship between the language of legislative statutes and their corresponding bureaucratic regulations. In …

Circuit Splits

Seton Hall Circuit Review

No abstract provided.

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Scholarly Articles

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the SEC—an …

Soggy Debt—The Seventh Circuit Widens The Split On Fdcpa Liability For Time-Barred Claims In Bankruptcy, Elijah C. Stone

SMU Law Review

No abstract provided.

Arbitration Law In Tension After Hall Street: Accuracy Of Finality?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

No abstract provided.

Petition For A Writ Of Certiorari. Lavigne V. Cajun Deep Foundations, L.L.C., 137 S.Ct. 1328 (2017) (No. 16-464), 2016 U.S. S. Ct. Briefs Lexis 3646, 2016 Wl 5929996, Eric Schnapper, Ruth W. Woodling

Court Briefs

No abstract provided.

Reply Brief. Frew V. Traylor, 136 S.Ct. 1159 (2016) (No. 15-483), Eric Schnapper, Timothy B. Garrigan, Timothy David Craig, Jane Swanson

Court Briefs

QUESTIONS PRESENTED Litigation regarding the legal responsibilities of large institutions, such as schools or prisons, is frequently resolved by consent decree. The widespread use of such consent decrees regularly gives rise to inter-related disputes about how to interpret provisions of those decrees, and about when the decrees themselves have been satisfied and may thus be dissolved. In the instant case the Fifth Circuit, expressly disagreeing with the standards applied in the Sixth and Ninth Circuits, interpreted in a narrow manner, and then ordered dissolution of, key provisions earlier agreed to by Texas that protect the rights of millions of indigent …

No More Quid Pro Quo: Abandoning The Personal Benefit Requirement In Insider Trading Law, Shannon Seiferth

University of Michigan Journal of Law Reform

A circuit split between the Second Circuit’s 2014 decision, United States v. Newman, and the Ninth Circuit’s 2015 decision, United States v. Salman, illustrates problems in insider trading law dating back over thirty years to the Supreme Court’s decision in Dirks v. SEC. Dirks held that when a corporate insider provides information to an outside party who then trades on the information, it must be shown that the insider received some form of a personal benefit for providing the information in order to impute liability. The courts in Newman and Salman disagreed on the sort of evidence …

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note focuses on the definition of “applicant” as defined in the Equal Credit Opportunity Act (ECOA) and Regulation B. Specifically, this Note explores the expanded protections offered by the ECOA to spousal guarantors, after the Federal Reserve Board (FRB) expanded the definition of “applicant” by promulgating Regulation B. However, after a circuit split, where the Eighth Circuit, in Hawkins v. Community Bank of Raymore, held that a guarantor was not an “applicant” per the ECOA’s definition and the Sixth Circuit, in RL BB Acquisition, LLC v. Bridgemill Commons Development Group, LLC, followed Regulation B’s expansion of the definition of …

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

Petition For A Writ Of Certiorari. Frew V. Traylor, 136 S.Ct. 1159 (2016) (No. 15-483), 2015 U.S. S. Ct. Briefs Lexis 3632, 2015 Wl 6083505, Eric Schnapper, Timothy B. Garrigan, Timothy David Craig, Jane Swanson

Court Briefs

QUESTIONS PRESENTED Litigation regarding the legal responsibilities of large institutions, such as schools or prisons, is frequently resolved by consent decree. The widespread use of such consent decrees regularly gives rise to inter-related disputes about how to interpret provisions of those decrees, and about when the decrees themselves have been satisfied and may thus be dissolved. In the instant case the Fifth Circuit, expressly disagreeing with the standards applied in the Sixth and Ninth Circuits, interpreted in a narrow manner, and then ordered dissolution of, key provisions earlier agreed to by Texas that protect the rights of millions of indigent …

Petition For A Writ Of Certiorari. Rochow V. Life Insurance Company Of North America, 136 S. Ct. 480 (2015) (No. 15-163), 2015 U.S. S. Ct. Briefs Lexis 2657, Eric Schnapper, Erik W. Scharf, John J. Cooper

Court Briefs

QUESTION PRESENTED When a benefit plan, in violation of ERISA, wrongfully denies or delays payment of a benefit, the court may award relief because of the improper delay in the payment of that benefit. The question presented is: Should 'the amount of a remedy based on the improper delay in the payment of a benefit be based on: (1) only the amount needed to redress the loss that the beneficiary sustained as a result of the wrongful delay (the rule in the Sixth Circuit), (2) either the amount needed to redress the loss that the beneficiary sustained as a result …

Making The Peg Fit The Hole: A Superior Solution To The Inherant Problems Of Incorporated Definitions, Lindsey P. Gustafson

University of Arkansas at Little Rock Law Review

No abstract provided.

Blue Skies For Black Lung Benefits Act Survivors? Courts' Interpretations Of § 932(L) Following The Enactment Of The Patient Protection And Affordable Care Act, Maureen Hughes

Catholic University Law Review

This Note summarizes the amendments made to the Black Lung Benefits Act (BLBA) following its passage in 1969 through the enactment of the 2010 Patient Protection and Affordable Care Act (PPACA). The Note also addresses the split among the circuits over the meaning of the revised language in 30 U.S.C. § 932(l) (2012), and explains the reasoning of the Third, Fourth, Sixth, and Eleventh Circuits regarding the effect of the PPACA on BLBA benefit eligibility for miners’ dependent survivors. Further, this Note explains the significance of, and necessity in, resolving the confusion over § 932(l), and …

Linking Rule 9(B) Pleading And The First-To-File Rule To Advance The Goals Of The False Claims Act, Karin Lee

Northwestern University Law Review

No abstract provided.

Finding The Solution In Wec Carolina Energy Solutions: The Computer Fraud And Abuse Act In The Workplace, Emily V. Malone

Catholic University Law Review

No abstract provided.

A Tale Of Two Minority Groups: Can Two Different Minority Groups Bring A Coalition Suit Under Section 2 Of The Voting Rights Act Of 1965, Sara Michaloski

Catholic University Law Review

No abstract provided.

Kaleidoscopic Chaos: Understanding The Circuit Courts’ Various Interpretations Of § 2255’S Savings Clause, Jennifer L. Case

Jennifer L. Case

More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time—and with increasing frequency—the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.

In their attempts to understand the …

Smoking Out A Compromise: Splitting The Difference Through A Public Policy Approach To Resolving The Graphic Cigarette Warning Label Circuit Split, Amelia B. Larsen

Cleveland State Law Review

The imposition of graphic warning labels is necessary; the tobacco market exploits the lower class by capitalizing on their under-education regarding the negative health consequences of smoking. This injustice can be corrected by providing the most direct and clear communication imaginable to consumers to ensure they are completely informed of the peril they are placing themselves in when they choose to smoke—the graphic warning labels provide this kind of communication. This Note discusses why the FDA’s warning labels meet First Amendment constitutional scrutiny and serve a substantial governmental interest regarding the country’s public health, socioeconomic equality, and economy. Part II …

Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment, Wayne A. Logan

Scholarly Publications

Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation's federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and …

Petition For A Writ Of Certiorari. Brush V. Sears Holding Corp., 568 U.S. 1143 (2013) (No. 12-268), 2013 U.S. Lexis 925, Eric W. Scharf, Wayne R. Atkins, Eric Schnapper, Brian D. Buckstein

Court Briefs

QUESTION PRESENTED

Section 704(a) of Title VII prohibits an employer from retaliating against an employee because he or she opposed discrimination forbidden by Title VII. The lower courts are divided as to how such anti-retaliation provisions apply to management officials, such as personnel or EEO officials, whose duties include assuring compliance with Title VII or implementing an employer’s anti-discrimination policy.

The question presented is: Are management officials: (1) subject to exclusion from protection under section 704(a) if their actions are within the scope of their official duties (the rule in the Fifth, Eighth, Tenth and Eleventh Circuits),
(2) protected under …