Circuit Court Of Appeals Research Articles

Correction to: Protest policing and policing protesters: litigation in the U.S. Circuit courts of appeals

Correction to: Protest policing and policing protesters: litigation in the U.S. Circuit courts of appeals

Legal Interpretations of Trauma: The U.S. Circuit Court of Appeals and Gender-Based Asylum Claims

This article is based on exploratory research on how the U.S. Circuit Court of Appeals uses the language of trauma in gender-based asylum claims. Gender-based asylum claims include female genital mutilation (FGM), coercive population control (CPC) in the form of forced abortions and forced sterilizations, rape, forced marriage, and domestic violence. The Circuit Courts have reviewed appeals from petitioners with asylum claims since 1946, yet the language of trauma did not appear in the Court’s decisions until 1983. From 1983 to 2023, only 385, 3.85% or less, of the over 10,000 asylum cases before the Circuit Courts used the language of trauma in its legal interpretation of persecution. I have identified 101 gender-based asylum cases that were reviewed by one of the eleven U.S. Circuit Court of Appeals that apply the language of trauma in its legal interpretation of persecution for this analysis. The research question guiding this study is: how does the U.S. Circuit Court of Appeals use the language of trauma when reviewing gender-based asylum cases? This study found that U.S. Circuit Courts use the language of trauma in four ways: precedent cases, policies and reports, physical trauma, and psychological trauma when reviewing gender-based asylum claims. This study provides the first data set of gender-based asylum claims under review at the U.S. Circuit Court of Appeals that use the language of trauma.

Protest policing and policing protesters: Litigation in the U.S. circuit courts of appeals

Protest policing and policing protesters: Litigation in the U.S. circuit courts of appeals

Arbitrator Disclosure: What Happened after Monster Energy?

The Ninth U.S. Circuit Court of Appeals four years ago generated buzz throughout the legal community and among arbitration practitioners about the levels of disclosure to be made by arbitrators when it issued Monster Energy Co. v. City Beverages LLC, 940 F.3d 1130, 1135 (9th Cir. 2019) (available at bit.ly/43HZ5Ic).

쿠오바디스, 차용미술의 미래는 어떻게 될 것인가?

The Supreme Court’s ruling on “Andy Warhol v. Goldsmith” (hereinafter referred to as the “Andy Warhol case”) was made on May 18, 2023. The Supreme Court agreed with the ruling of the Second Circuit Court of Appeals and ruled that Andy Warhol’s “Orange Prince” and “Prince Series” were copyright infringement, not fair use, because they could not be regarded as transformative use.
 This case will be the most important case in the art world as a ruling on fair use in the past 20 years or so. And the outcome of this ruling could have a tremendous impact on the future of appropriation art, so-called pop art.
 In the Andy Warhol case, the rulings of the first trial and the appeal trial were sharply divided. The first trial judged that Andy Warhol’s use could not be regarded as fair use for each factor of judgment, but as a result, it was fair use. However, the appeals court ruled in favor of Goldsmith, judging that the first trial court made a mistake in reviewing the fair use factors and that it was not fair use in all of the fair use judgment factors.
 Therefore, this paper analyzed the rulings in each court. In addition, the concept of appropriation art in Korea and copyright infringement cases related to the current parody were reviewed, and what judgments would be made if the Andy Warhol ruling was applied to Korea in the future.
 Finally, in Korea, it was concluded that it is desirable to actively interpret fair use doctrine as much as possible so that freedom of creation can be guaranteed if fair use is a problem in copyright infringement cases.

Inmates with Heat-Sensitive Health Conditions: Surveying Prisoner Litigation in the Age of Climate Change

Rising temperatures and severe heat, as a result of climate change, have led to a significant number of heat-related deaths and injuries among correctional populations in the United States. This article analyzes cases from the U.S. Circuit Courts of Appeals in which inmates challenged the constitutionality of their conditions of confinement in extremely hot facilities pursuant Title 42 U.S. Code Section 1983. An inductive analysis of caselaw revealed two themes: inmates with heat-sensitive health conditions and reasonable staff responses to inmate's heat exposure. The article concludes by offering policy guidance to prison officials based on the themes revealed in the circuit court decisions and by providing recommendations for future research.

Five Years Since Endrew F.: How the U.S. Circuit Courts of Appeal Have Applied the Endrew F. U.S. Supreme Court Ruling and Why This Matters for Special Education in Schools

This paper provides an overview of the U.S. Circuit Court cases following the most recent U.S. Supreme Court decision related to special education: Endrew F. v. Douglas County Sch. Dist. (2017). This article will be helpful for school leaders who are on the front lines of implementing special education law as several implications of the Endrew F. case are considered: (1) reasonable progress is the legal standard, (2) crafting an IEP is an individualized, fact-intensive endeavor, (3) parent involvement is critical, (4) beware procedural errors, (5) the law favors the LRE, and (6) be prepared to fully implement the IEP.

THE MANY LIVES OF CONSTANCE BAKER MOTLEY

THE MANY LIVES OF CONSTANCE BAKER MOTLEY

Case Note: Fitisemanu v. United States: U.S. Citizenship in American Sāmoa and the Insular Cases

This article considers the problematic place of individual American Sāmoans who have been denied full membership within the American political community, first due to the colonialist arcane notion of being unfit for full membership in the American community on racial and cultural grounds embodied in the Supreme Court’s Insular Cases, and second, because these same cases have been repurposed, ostensibly to protect Indigenous culture. To that end, this article reviews the United States Tenth Circuit Court of Appeals’ recent decision in Fitisemanu et al.v. United States, where a split panel reversed the U.S. District Court recognition of birthright citizenship to those born within American Sāmoa. The Appeals Court’s decision determined that American Sāmoa was not within the scope of the 14th Amendment to the U.S. Constitution through a controversial repackaging of the so-called Insular Cases, which have been criticized as being emblematic of racialist and colonialist jurisprudence that justified the denial of rights to inhabitants of American colonial territories.

Prison Policy from the “Bottom Up”

Prison Policy from the “Bottom Up”

Ending the Charade: The Fifth Circuit Should Expressly Adopt the Deliberate Indifference Standard for ADA Title II and RA Section 504 Damages Claims

While the Americans with Disabilities Act (“ADA”) has been law for over 30 years, the Fifth Circuit Court of Appeals has yet to adopt a definitive standard for how plaintiffs win damages under Title II of that law. Further, while the Rehabilitation Act (“RA”) has been law for almost 50 years, the Fifth Circuit has failed to announce any specific standard for how plaintiffs obtain damages under that law as well. I previously wrote an article in the pages of this journal that sought to “clarify” the Fifth Circuit’s jurisprudence on the issue. In Fifth Indifference: Clarifying the Fifth Circuit’s Intent Standard for Damages Under Title II of the Americans with Disabilities Act, 7 Tex. A&M L. Rev. Arguendo 1 (2019), I argued (1) that the Fifth Circuit should adopt the “deliberate indifference” standard and (2) that no Fifth Circuit precedent should be read as explicitly forbidding the adoption of that standard. My paper has seen great success in its downloads and its recent citation in a brief to the Fifth Circuit. However, the Fifth Circuit has still failed to adopt any specific standard and continues to use phrases like “seem to have required” and “something more than deliberate indifference.” Fortunately, what the Fifth Circuit has said and what it has done have been two different things. In reality, the Fifth Circuit has been using nothing more, less, or different than a standard deliberate indifference analysis. Thus, the “seem to have required more than deliberate indifference” standard is a mere charade. This charade should now be abandoned, and the Fifth Circuit should explicitly adopt the deliberate indifference standard. That standard being (1) a defendant knew of facts that presented a substantial risk of harm to an ADA or RA right and (2) the actor or entity failed to act appropriately on that risk. To make this argument, this Article is divided as follows. Part I discusses the historical and doctrinal background of the ADA and the RA. Part II discusses how other circuits have addressed the issue of damages actions under Title II of the ADA and the RA. Part III discusses the Fifth Circuit’s relevant jurisprudence. Part IV then explains why the Fifth Circuit should explicitly adopt deliberate indifference. Finally, Part V briefly argues why lower courts and any individual panels of the Fifth Circuit could ignore the “something more than deliberate indifference” standard and explicitly adopt ordinary “deliberate indifference.”

Are Settlements in Patent Litigation Collusive? Evidence from Paragraph IV Challenges

The use of “pay-for-delay” settlements in patent litigation – in which a branded manufacturer and generic entrant settle a Paragraph IV patent challenge and agree to forestall entry – has come under considerable scrutiny in recent years. Critics argue that these settlements are collusive and lower consumer welfare by maintaining monopoly prices after patents should have expired, while proponents argue they reinforce incentives for innovation. We estimate the impact of settlements to Paragraph IV challenges on generic entry and evaluate the implications for drug prices and quantity. To address the potential endogeneity of Paragraph IV challenges and settlements we estimate the model using instrumental variables. Our instruments include standard measures of patent strength and a measure of settlement legality based on a split between several Circuit Courts of Appeal. We find that Paragraph IV challenges increase generic entry, lower drug prices and increase quantity, while settlements effectively reverse the effect. These effects persist over time, inflating price and depressing quantity for up to 5 years after the challenge. We also find that eliminating settlements would result in a relatively small reduction in research and development (R&D) expenditures.

Goldberg v. Kelly: The Case, the Clerk, and the Justice

Goldberg v. Kelly: The Case, the Clerk, and the Justice Michael Nelson (bio) During his nearly thirty-four years on the Supreme Court, Justice William J. Brennan wrote 461 majority opinions, including those in landmark cases such as Baker v. Carr, New York Times v. Sullivan, Cooper v. Aaron, Frontiero v. Richardson, and Texas v. Johnson.1 Yet Brennan described his opinion for the Court in Goldberg v. Kelly as “probably the most important thing that came out of these chambers from me.”2 Brennan was not alone in that assessment. According to Stephen Breyer, who is perhaps as deeply versed in the subject as any justice in the history of the Court, “Goldberg v. Kelly revolutionized administrative law.”3 Yale Law School Professor Jeffrey Mashaw described it as the opening salvo in a “due process revolution.”4 Henry Friendly, the chief judge of the Second Circuit Court of Appeals, suggested that the case caused “a greater expansion of procedural due process. . . than in the entire period since the ratification of the Constitution.”5 Legal analyst Jeffrey Toobin wrote, “Goldberg v. Kelly is one of those cases that is so big, its influence so persuasive, its implications so immense, that it is difficult to get a firm grip on it.” Toobin recalled “that I was assigned to read the case in no fewer than five different classes in law school: Constitutional Law (what due process means and who is entitled to it and for what?); Property (do welfare benefits count as property?); Civil Procedure (how much process is ‘due’ process?); Administrative Law (how much process is ‘due’ process—specifically?); and Law of the Welfare State (that course was basically about Goldberg v. Kelly).”6 The Case The Goldberg in Goldberg v. Kelly was Jack Goldberg, New York City’s Commissioner of Welfare. He was appealing a lower court ruling in favor of John Kelly and nineteen other welfare recipients. Their benefits were terminated by their caseworkers for various reasons, and their only recourse was to file a written appeal to their caseworker’s supervisor. Even if they made such an appeal, [End Page 162] their benefits would remain cut off unless and until they prevailed. Welfare owed its existence to a patch-work of state and federal laws, the most important of which was the Social Security Act of 1935. In addition to its most prominent feature—old-age insurance—the act provided modest financial support for other categories of people, including dependent children. Commonly referred to as welfare, this support came in the form of Aid to Families with Dependent Children (AFDC), a program jointly funded by the state and federal governments to provide financial support for single-parent households headed by unmarried, divorced, or widowed women. Widows featured prominently among early beneficiaries, but over time the typical AFDC recipient was more likely to be a politically less sympathetic unwed mother. Most states responded to this change by authorizing local program administrators to deny or cut off benefits to families in which, for example, a man was living in the home. But New York, an unusually generous state, provided additional payments to eligible recipients through its Home Relief program to help cover additional housing, clothing, and certain other needs. The origin of Goldberg v. Kelly lay mostly with lawyers at New York City’s Mobilization for Youth (MFY) Legal Unit and Columbia University’s Center on Social Welfare Policy and Law (CSWPL). For years, such legal representation as AFDC beneficiaries were able to obtain when their benefits were terminated or reduced usually had come from Legal Aid Society lawyers, whose limited number, narrow mission, and slender resources restricted them to helping individuals navigate existing laws and regulations rather than challenging the laws and regulations themselves. According to legal scholar Martha F. Davis, “Despite eighty-nine years of representing the poor, Legal Aid lawyers had never appealed a case to the Supreme Court.”7 In 1964, however, MFY expanded its focus on “organizing the unaffiliated—the lower fifth of the economic ladder” by creating a unit to mount legal challenges to “social policy and administrative practices rather than to supply legal help to clients.”8 One year later, Columbia’s...

The Senate Judiciary Committee's Relationship with the Federal Courts

Abstract This Article examines the general relationship between the Senate Judiciary Committee and the federal courts using a historical institutionalist analysis. The Senate Judiciary Committee, often known as the “Committee of Lawyers”, has adopted a very lawyer-like decision making process and style. This Article considers whether the large number of lawyers who sit on it serves to protect the federal courts from institutional attacks; it explores how the Committee can influence the number of judges sitting on any given federal court and help determine the boundaries of the U.S. Circuit Courts of Appeals. The Article explores why the Senate Judiciary Committee often serves as a graveyard for court-curbing proposals approved by the House Judiciary Committee or even the full House. The main focus of the Article is on how the Committee chair has considerable influence on the court-Congress relationship, although the chair must function within the overall decision-making culture of the Senate as a whole. It notes various chairs have approached the Blue Slip process for judicial nominees very differently, depending in part on whether the White House and the Senate are controlled by the same political party. Finally, the Article discusses how the Committee attracts ideologically extreme members of both parties and how this ideological polarization affects the Committee's interactions with the federal judiciary. The Article also provides some comparisons with the House Judiciary Committee on these issues.

Evaluating the 4th Circuit’s decision to limit officer use of Tasers: a descriptive and time-series approach

ABSTRACT In 2016, the U.S. Fourth Circuit Court of Appeals ruled in Armstrong V. Village of Pinehurst that the use of conducted energy devices (CEDs) on resisting but non-violent and stationary defendants was unconstitutional. Because most empirical studies show that the adoption of CEDs led to reductions in suspect and officer injuries, there are concerns that placing greater restrictions on CED use may increase the risk of injuries. Officers may resort to alternative methods of force to gain citizen compliance, including hands-on tactics, batons, and firearms. Findings from an interrupted time-series analysis show significant reductions in CED uses and threats and increases in firearm threats. Interestingly, significant reductions in suspect injuries were also found. Other findings from a survey of large law enforcement agencies that fall within the Fourth Circuit’s jurisdiction to assess the impact of the Court’s decision on policy are presented. Policy implications and future research are discussed.

Outpatient Conditions of Release following NGRI Acquittal

In Janakievski v. Executive Director , 955 F.3d 314 (2d Cir. 2020), the Second Circuit Court of Appeals considered whether a person acquitted by by reason of insanity can challenge the outpatient conditions of release. The U.S. District Court for the Western District of New York had ruled that Mr.

Litigation on Gender Confirmation Surgery and Hormonal Therapy among Trans Women Prisoners: Views from the U.S. Circuit Courts of Appeals

This article analyzes U.S. Circuit Courts of Appeals’ cases involving Title 42 U.S.C. §1983 actions filed by trans women inmates against corrections and/or medical officers for failure to provide hormone therapy and/or gender confirmation surgery (“GCS”) (N = 24). The courts varied in their decisions. The Ninth Circuit has been more progressive toward trans rights, holding that GCS can be medically necessary depending on the individualized needs of the transgender inmate because there is a medical consensus on the appropriateness of these treatments. The First and Fifth Circuits rejected requests for GCS because of the lack of medical consensus on the necessity of GCS. Both the Seventh and Eleventh Circuits held that failure to provide medically recommended care for a non-medical reason and unexplained delays in treatment can constitute deliberate indifference, violating the Eighth Amendment. Under Tenth Circuit precedent, prison officials are not deliberately indifferent for failing to provide hormone treatments.

The Right to Choose

The Right to Choose

Mechanisms Underlying Familial Influence on Elite Political Behavior: Evidence from the U.S. Circuit Courts of Appeals

Abstract This article contributes to the literature addressing family influences on elite political behavior. By empirically assessing the influence of sibling gender on judicial decision-making, we are able to present evidence on the mechanism by which child, sibling and other relatives’ gender may influence elite political behavior. We build on a published dataset by mining various archival sources to compile data on the gender of judges’ siblings. We find no evidence that male judges’ votes on so-called “women’s issues” (employment discrimination based on gender or pregnancy, reproductive rights/abortion, and Title IX) are affected by whether they have a sister, and we are able to rule out large effects of a sibling’s gender on male and female judges’ votes. Our results imply that the relationship between family member gender and elite political behavior is driven by the desire to avoid costs of discrimination, rather than learning from family members.

License and registration: how both property and contract legal frameworks fall short on interpreting domain name registration under the US Anticybersquatting Act

ABSTRACT What are a re-registrant's rights to an Internet domain name under the US Anti-Cybersquatting Consumer Protection Act? Circuit courts of appeals have split on the question of whether to view Internet domain name re-registrations as intangible property (Ninth Circuit) or under a contract framework (Third and Eleventh Circuits). But it turns out that both of these views fall short. The property approach could encourage cybersquatting, contravening the ACPA’s statutory purpose, and the contract approach can be over-inclusive, potentially subjecting to liability a domain name registrant who is merely changing her address, her payment information, or even correcting a misspelling. Where the two approaches lead to divergent outcomes, a hybrid approach is not feasible. I suggest that recognizing the de facto licensing system already used in domain name registration (and re-registration) (1) resolves the circuit split, (2) more accurately describes the process of acquiring and maintaining one's rights in a domain name registration, and (3) enables consistent application of the ACPA.