Courts Commons^™

The Federal Circuit: A Microcosm Of Changes In The Legal Landscape, Jimmie V. Reyna

American University Law Review

On April 2, 1982, Congress established the United States Court of Appeals for the Federal Circuit through the Federal Courts Improvement Act of 1982, which merged the United States Court of Customs and Patent Appeals with the appellate division of the United States Court of Claims. The Federal Circuit has just surpassed forty years of appellate jurisprudence.

The Purcell Principle And The Antiblackness Of Constitutional Fundamentalism, Brittany Carter

American University Law Review

In Milligan v. Merrill, a district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps. The only stated rationale, offered by Justices Kavanaugh and Alito in a concurring opinion, was the so-called Purcell principle – the notion that federal courts should not enjoin a state’s election laws in the period close to an election. …

The Judicial Activism Of Justice Anthony Kennedy, Carlos A. Ball

American University Law Review

Few recent Supreme Court justices have had a greater impact on constitutional law than Anthony Kennedy. Although commentators have explored the substance of Justice Kennedy’s jurisprudence in some detail, legal scholars have not systematically analyzed the extent of his judicial activism. This Article uses the term “judicial activism” descriptively rather than normatively to help account for a judge’s willingness to strike down federal, state, and local laws on constitutional grounds. It finds that, under a descriptive definition, when compared to the justices with whom he served, Justice Kennedy was a singularly judicial activist judge.

This conclusion rests on three findings. …

When Amicus Curiae Briefs Are Inimicus Curiae Briefs: Amicus Curiae Briefs And The Bypassing Of Admissibility Standards, David Dematteo, Kellie Wiltsie

American University Law Review

Amicus curiae briefs are being submitted at historically high levels by a range of individuals and entities, and there is compelling evidence that these briefs are highly influential in judicial decision-making, including in the Supreme Court of the United States. Although amicus curiae briefs have been an ingrained aspect of the U.S. legal system for hundred-plus years, various legal scholars, researchers, commentators, and judges, including Supreme Court Justices, have raised concerns about their use, including that amicus curiae briefs contain redundant information and often function as advocacy tools. This Article addresses an aspect of amicus curiae briefs that has received …

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.

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 …

The Insidious Effect Of Soundbites: Why Fences Aren't Punishment, Theresa Gabaldon

American University Law Review

This Article was inspired by two recent Supreme Court decisions dealing with the ability of the Securities and Exchange Commission to seek disgorgement of unlawfully obtained profits. The topic, however, is not disgorgement. That is a different article, published by the author in the Cornell Lazu Reviezu in 2020, on which this one builds. This Article focuses instead on jurisprudential methodology. The Court has begun to exhibit an unfortunate penchant for jurisprudence by soundbite—the functional equivalent of Googling its ozun precedents for pithy quotes taken out of context from inapt cases. The results are, to put it politely, mischievous.

This …

Judicial Review Of Emergency Administration, Desiree Leclercq

American University Law Review

This Article seeks to describe and defend the judicial review of federal agencies’ responses to national emergencies - what I refer to as “emergency administration.” That may prove difficult. Agencies are experts in their respective fields. During emergencies, scholars and policymakers assume that judges will defer to that expertise under the Administrative Procedure Act (APA ). On January 13, 2022, the Supreme Court defied that assumption when it blocked the Biden Administration s workplace vaccine and masking rules. Critics now assume that judges are reviewing emergency administration to constrain regulation. Both assumptions conclude that judicial review is neither sincere nor …

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 …

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. …

The Insights, Uses, And Ethics Of Social Neuroscience In Anti-Discrimination Law, Susan Carle

Scholarly Articles in Law Reviews & Journals

The article explores the uses in anti-discrimination law of social neuroscience—a broad interdisciplinary field that draws on the insights of brain science, medicine, epidemiology, social psychology, behavioral economics, moral cognitive neuroscience and many other experimentally based disciplines. It discusses the promising uses of social neuroscience findings from all these subfields on such matters as the irrational biases of “fast” thinking processes in general, and implicit biases against “out” groups more specifically, as well as group conformity, the black sheep effect, and more. The article traces a few of the ways these insights can help inform anti-discrimination law in both particular …

Brief Of Amicus Curiae Professor Susan Carle In Support Of The Plaintiffs Arguing For Affirmance In Johnson And Tinker V. City Of Boston, Ma, Susan Carle

Amicus Briefs & Court Filings

This brief is being submitted by a law professor, Susan D. Carle, with more than 30 years of expertise in federal employment and antidiscrimination law, and especially the history and purposes of disparate impact law. She submits this brief to share her expertise with this Court. She is currently Professor of Law and Vice Dean of American University Washington College of Law (organizational affiliation is offered for identification purposes only).

Comparing Dadd V. Anoka County With Corbitt V. Vickers: Why Defendants Should Bear The Burden Of Establishing Qualified Immunity In A Motion To Dismiss, Aisha Green

American University Law Review

In the wake of last summer’s George Floyd protests, qualified immunity is once again at the forefront of the debate. Officials, such as police officers, can raise qualified immunity as an affirmative defense in response to allegations that they have violated an individual’s constitutional rights. The different interpretations of qualified immunity’s meaning, use, and scope among the circuit courts have contributed to the development of strong opinions on both sides of the defense.

Particularly, circuit courts are split over who bears the burden of establishing qualified immunity when defendants use it as a basis for a motion to dismiss under …

A Right For Retirement Unconscionable Contracts, The Right (Not) To Associate, And Citizens United, Paul S. Miller

American University Law Review

The doctrine of unconscionable contracts is an equity doctrine. As such, it does not ask whether an agreement is or is not an enforceable contract; legality has no bearing. Rather, the doctrine asks whether it would be it be fit and proper . . . would it be fair . . . for a court to enforce such a contract. Using the doctrine, courts examine whether the price paid for a good or service far outstrips any benefit gained.

What if that price is the surrender of a basic right, the Right (Not) to Associate? The Supreme Court says that …

Year In Review: The Federal Circuit's 2020 Government Contract Law Decisions, The Honorable Jeri Kaylene Somers, Jedidiah Blake Ii, Matthew Gurr, Benjamin Phillips Iii

American University Law Review

This Article discusses a number of important 2020 government contracts decisions from the U.S. Court of Appeals for the Federal Circuit. As in previous years, appeals involving government contracting issues comprised only a small portion of the Federal Circuit’s docket, the majority of which is consistently intellectual property disputes. Although only comprising a small portion of the docket, the government contracts appeals that the Federal Circuit considered in 2020 covered a wide range of topics. This year-in-review first addresses Federal Circuit decisions across three major issues in government contracts appeals—cost and pricing, contract interpretation, and bid protests—before examining other significant …

Mediation At The Court Of Appeals For The Federal Circuit, Gidget Benitez

Intellectual Property Brief

No abstract provided.

Article 6bis Of The Paris Convention: How The United States Court Of Appeals For The Second Circuit Is Violating International Law, Deepa Singh

American University International Law Review

No abstract provided.

Rehabilitating Our Immigration System With The Rehabilitation Act: Rejecting Video Teleconferencing And Presumptively Requiring In-Person Court Appearances As A Reasonable Accommodation For Mentally Incompetent Detainees, Cassandra H. Chee

American University Law Review

In recent years, the Executive Office for Immigration Review (EOIR), the office of the U.S. Department of Justice (DOJ) responsible for adjudicating immigration cases, has increasingly relied on the use of video teleconferencing (VTC) in immigration court proceedings, as opposed to in-person court appearances. Citing VTC as an efficient and effective way to conduct hearings and manage its large docket backlog, EOIR has installed VTC units at its headquarters and at nearly all immigration courts, and the agency’s use of VTC has risen exponentially under the Trump Administration. Yet, VTC has been proven to harm immigration judges’ abilities to assess …

Promise Amid Peril: Prea's Efforts To Regulate An End To Prison Rape, Brenda V. Smith

Project on Addressing Prison Rape - Articles

This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.

Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Tweeting With A Purpose: Interpreting "Corrupt Persuasion" In 18 U.S.C. § 1512(B), Jessica Ochoa

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sacouto, Patricia Viseur Sellers

Scholarly Articles in Law Reviews & Journals

On June 8, 2018, a majority of the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002, and March 2003. The decision was clearly a disappointment for the victims of the crimes committed by Bemba’s troops, who have been waiting for more than fifteen years for a measure of justice. Significantly, the acquittal also means that sixteen years after the Rome …

Why The Categorical Approach Should Not Be Used When Determining Whether An Offense Is A Crime Of Violence Under The Residual Clause Of 18 U.S.C. § 924 (C), Mary Frances Richardson

American University Law Review

No abstract provided.

A Reflection On The Ethics Of Movement Lawyering, Susan Carle, Scott L. Cummings

Scholarly Articles in Law Reviews & Journals

This essay takes a new look at legal ethics issues salient to "movement lawyers" who maintain a sustained commitment to social movement goals and collaborate with social movement organizations over time to achieve them. The essay provides a historical overview of movement lawyering, tracing its development to current practice in which movement lawyers work in collaboration with mobilized social movement groups, though not always in traditional lawyer-client relationships. As this analysis reveals, contemporary movements employ a sophisticated array of strategies, which may pull lawyers away from traditional representation paradigms. We argue that the legal ethics literature on movement lawyering must …

Court Capture, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

Brief Of International Law Scholars And Non-Governmental Organizations As Amici Curiae In Support Of Appellees In International Refugee Assistance Project V. Trump, 2017 U.S. 4th Cir., Amanda Frost

Amicus Briefs & Court Filings

No abstract provided.

"No Ordinary Lawsuit": Climate Change, Due Process, And The Public Trust Doctrine, Michael Blumm, Mary Christina Wood

American University Law Review

On November 10, 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. United States. This remarkable decision refused to dismiss a lawsuit brought by youth plaintiffs who claimed that the federal government's fossil fuel policies over the years, which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs), violated the federal public trust doctrine (PTD) and their federal constitutional rights to due process and equal protection. The court found a constitutional right to a stable climate system, determining that the PTD was an implicit part of …

The New New Courts, Orna Rabinovich-Einy, Ethan Katsh

American University Law Review

In this Article we describe the phenomenon of online courts, which is fast gaining momentum, and analyze these "new new courts" from an access to justice perspective. We distinguish between two turning points in terms of access to justice and courts: the rise of alternative dispute resolution (ADR) (producing what we refer to as the "new courts") and the spread of online dispute resolution (ODR) (giving rise to what we refer to as the "new new courts"). While both developments seem to be motivated by similar rationales and a desire to increase access to justice, the implications of adopting ADR …

Informed Misdemeanor Sentencing, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.

Under most theories of punishment, …