Circuit Court Of Appeals Research Articles

Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges (U.S. 2014, Nos. 14-556, 14-562, 14-571 and 14-574)

This amici curiae brief was filed in the Supreme Court in March 2015 on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases on appeal from the 6th Circuit Court of Appeals. The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the “optimal” setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

Corporate Democracy from Say on Pay to Say on Politics

The President of the Business Roundtable once infamously said that “corporations were never designed to be democracies…” American courts respectfully disagree and have repeatedly held that the democratic rights of shareholders are sacrosanct. The context for the Business Roundtable President’s comment was the battle over say on pay — a battle the Business Roundtable lost in the United States with the passage of the financial reform legislation known as Dodd-Frank. As I will explain in this piece, courts’ robust conception of corporate democracy rights for shareholders should protect both shareholders’ ability to have a say on pay and say on politics. Say on pay is the practice in United States, among other nations, of mandating a non-binding shareholder vote on executive compensation at publicly traded firms. A shareholders’ say on politics does not yet exist in America. But theoretically, just as say on pay mandates shareholder democracy in the case of executive remuneration, say on politics would require shareholders to vote on corporate political spending. Binding say on politics votes already exist in the U.K. Critiques of say on pay and say on politics have been couched as constitutional objections based on either the Tenth or First Amendments of the U.S. Constitution. But at their heart, these objections seem less rooted in the text of the Constitution and more inspired by a cribbed conception of shareholders’ corporate voting rights. To untangle who has the stronger legal argument requires a review of how American courts have conceptualized “corporate democracy.” I conclude that as framed by key courts such as the U.S. Supreme Court, the D.C. Circuit Court of Appeals and the Delaware state courts, “corporate democracy” is a capacious enough concept to justify both shareholders’ say on pay and say on politics.

Beyond DAPA and DACA: Revisiting Legislative Reform in Light of Long-Term Trends in Unauthorized Immigration to the United States

In December 2014, the Center for Migration Studies of New York (CMS) released a paper that provides new estimates of the US unauthorized resident population (Warren 2014). The paper describes the development of a new dataset which has detailed information about unauthorized residents, derived from data collected in the US Census Bureau's American Community Survey (ACS). The dataset will be useful to scholars, researchers, service-providers, and government officials in crafting, implementing, and evaluating programs that serve noncitizens, including the unauthorized. In addition, the new estimates provide an opportunity to examine the dramatic changes in unauthorized immigration in the past two decades and the assumptions that have shaped US policies and public opinion. The new dataset, recent estimates of the unauthorized (Warren and Warren 2013) and statistics on the noncitizen population from IPUMS-USA (Ruggles et al. 2010) highlight several trends related to the decline in the unauthorized population, particularly from Mexico, and the increasing salience of visa overstays in constituting this population. Some trends defy conventional wisdom and all of them have public policy consequences. In particular, we find that: • The unauthorized resident population was about a million lower in 2013 than in 2007. • The “Great Recession” was not the principal cause of population decline. • Annual arrivals into the unauthorized population increased to more than one million in 2000, then began to drop steadily, and have now reached their lowest levels since the early 1980s. • From 2000 to 2012, arrivals from Mexico fell by about 80 percent. • Between 2010 and 2013, the total unauthorized population from Mexico declined by eight percent. • In 2006, the number of arrivals from Mexico fell below the total number of arrivals from all other countries (combined) for the first time. • The number who stayed beyond the period authorized by their temporary visas (overstays) exceeded the number who entered across the southern land border without inspection (EWIs) in each year from 2008 to 2012. While the CMS estimates are based on sample data and assumptions that are subject to error, these trends are consistent with the best empirical information available. In November 2014 the Obama Administration announced an unprecedented set of executive action initiatives. At this writing, the Deferred Action for Parental Accountability (DAPA) program and the expanded Deferred Action for Childhood Arrivals (DACA) program, which would provide work authorization and temporary reprieve from removal to eligible persons, have been preliminarily enjoined. The temporary injunction, which the US Department of Justice plans to appeal to the Fifth Circuit Court of Appeals, comes in response to a legal challenge to the two programs by 26 states under Article II, section 3 of the US Constitution which requires the president to “take Care that the Laws be faithfully executed,” and under the Administrative Procedure Act (APA). In addition, the Republican majorities of the 114th Congress have vowed to prevent the implementation of these programs. However, the administration has expressed confidence that it will ultimately prevail in court and in its battle with Congress over these programs. Meanwhile, nongovernmental organizations (NGOs), community-based organizations (CBOs), and others continue to plan intensively for the DAPA and DACA programs, as well as for other executive action initiatives. This paper provides estimates of those who are potentially eligible for DAPA and DACA. However, it also looks beyond DAPA and DACA to make the case for broad legislative reform in light of long-term trends in unauthorized migration to the United States and the unauthorized resident population. In particular, it argues that substantial declines in the unauthorized population—a goal shared by partisans on both sides of the immigration debate—will require reform of the legal immigration system, legalization of a substantial percentage of the unauthorized, and a more effective response to nonimmigrant visa overstays.

21st Century New Use Technology in the Book Publishing Industry and How Authors Can Better Protect Their New Use Technology Rights

The book publishing industry has experienced several changes in the twenty-first century, from the advent of e-readers and self-publishing, to the multimillion antitrust and class-action lawsuits against five of the largest US trade publishers and subsequent new business models. These ongoing changes are affecting how publishers negotiate book contracts with authors, especially regarding new use technology provisions, such as e-books and enhanced e-books. Given the current surge in electronic publishing, this article attempts to help authors better understand the legal and economic implications of new use technology provisions in author agreements. This article first explores how the United States Second Circuit Court of Appeals has interpreted new use technology provisions with a special emphasis on twenty-first century litigation concerning new use technology provisions in author agreements, including the recent HarperCollins v. Open Road Media decision in early 2014. Second, this paper attempts to predict how the Second Circuit will interpret current new use technology provisions in author agreements and provides negotiation strategies for authors to protect their new use technology rights and avoid litigation.

Personal Foul, Roughing the Speaker: The Illusory War between the Establishment Clause & College Football

Under the current landscape of First Amendment free speech and Establishment Clause jurisprudence, the boundaries of permissible speech at the university level has not been decided by the Supreme Court. While public employees have the right to speak out on matters of public concern and religious speech cannot be excluded from government property under the premise that it represents viewpoint discrimination, the exact boundaries of employee speech regarding religious matters is uncertain at best. Further, the Court’s Establishment Clause doctrine, although appearing to move toward adoption of the coercion test, is muddled with conflicting tests and ideologies. What happens when these rights so valuable and vital to the Constitution, intersect has not been settled by the Supreme Court. Several recent trends in collegiate football have raised serious issues regarding this uncertainty, as head coaches at major collegiate athletic programs seek to exercise their right to speak on matters of religion to players. Their speech raises Establishment Clause concerns for fear that students will be coerced to participate or acquiesce to the coach’s desires.This article proposes a method for resolving these differences. In Part I, I will analyze the background law governing public employee’s free speech claims, the intersection between the freedom of speech and the Establishment Clause, and whether coercive speech falls outside the realm of constitutional protection. In addition, I will provide background on the Court’s Establishment Clause jurisprudence regarding the Coercion test, as well as the implications of the recent case of Town of Greece v. Galloway. In Part II, I will set out the views of several Circuit Courts of Appeals on the issue. In Part III, I explain why religious speech is a matter of public concern, and why the Coercion Test represents the best tool for analyzing potential Establishment Clause violations at the university level. In Part IV, I will separately analyze the issue of prayer using the same methodology. Finally, in Part V I will set out my test for a violation with regard to employee speech in the university context, namely that the coercion test, where coercion is defined as either mandatory presence at an event, religious service, or some other instance that represents a blatant and clear violation of the Establishment Clause, or the imposition of harmful punishments or consequences for disagreement or non-participation, represents the proper test. I will then apply this test to several real life examples in the world of college football.

Joint Venture Interests as Securities

Colorado federal and state courts have considered whether joint venture interests offered to participants for oil and gas development are securities subject to regulation under federal and state securities laws seven times since 2011. In the most recent State trial court decision on remand from the Colorado Court of Appeals, the joint venture interests were found to be securities, and the defendants were found to be offering and selling the securities. This decision is now consistent with the Tenth Circuit Court of Appeals, and likely spells the end of the oil and gas joint venture programs structured to avoid securities regulation while still cold-calling a large number of prospective investors, providing nominal management rights, and not requiring industry expertise. In Colorado, the Court of Appeals decision firmly established the economic realities test as the test to determine whether a transaction involved a security, and eliminated the strong presumption established in Williamson v. Tucker that a general partnership interest was not a security. consistently with the Tenth Circuit, provided a path for those wishing to form or defend joint ventures to follow. While, as noted by the Court of Appeals, “[courts] look at the expectations...at the time the interest is sold”, meaningful post-sale participation can be an indication of what the parties (and especially the investors) expected at the time of sale.

ADR Brief

The Eleventh U.S. Circuit Court of Appeals has refused to compel arbitration because a loan‐agreement provision contained a forum selection clause that the court said was integral to the agreement, and the specified forum was not available to arbitrate the dispute. Inetianbor v. CashCall Inc., No. 13‐13822, 2014 WL 4922225 (11th Cir. Oct. 2, 2014) (11th Cir. Oct. 2, 2014)(available at http://1.usa.gov/1CK1BfL).

Beyond DAPA and DACA: Revisiting Legislative Reform in Light of Long-Term Trends in Unauthorized Immigration to the United States

In December 2014, the Center for Migration Studies of New York (CMS) released a paper that provides new estimates of the US unauthorized resident population (Warren 2014). The paper describes the development of a new dataset which has detailed information about unauthorized residents, derived from data collected in the US Census Bureau’s American Community Survey (ACS). The dataset will be useful to scholars, researchers, service-providers, and government officials in crafting, implementing, and evaluating programs that serve noncitizens, including the unauthorized. In addition, the new estimates provide an opportunity to examine the dramatic changes in unauthorized immigration in the past two decades and the assumptions that have shaped US policies and public opinion. The new dataset, recent estimates of the unauthorized (Warren and Warren 2013) and statistics on the noncitizen population from IPUMS-USA (Ruggles et al. 2010) highlight several trends related to the decline in the unauthorized population, particularly from Mexico, and the increasing salience of visa overstays in constituting this population. Some trends defy conventional wisdom and all of them have public policy consequences. In particular, we find that: The unauthorized resident population was about a million lower in 2013 than in 2007. The “Great Recession” was not the principal cause of population decline. Annual arrivals into the unauthorized population increased to more than one million in 2000, then began to drop steadily, and have now reached their lowest levels since the early 1980s. From 2000 to 2012, arrivals from Mexico fell by about 80 percent. Between 2010 and 2013, the total unauthorized population from Mexico declined by eight percent. In 2006, the number of arrivals from Mexico fell below the total number of arrivals from all other countries (combined) for the first time. The number who stayed beyond the period authorized by their temporary visas (overstays) exceeded the number who entered across the southern land border without inspection (EWIs) in each year from 2008 to 2012. While the CMS estimates are based on sample data and assumptions that are subject to error, these trends are consistent with the best empirical information available. In November 2014 the Obama Administration announced an unprecedented set of executive action initiatives. At this writing, the Deferred Action for Parental Accountability (DAPA) program and the expanded Deferred Action for Childhood Arrivals (DACA) program, which would provide work authorization and temporary reprieve from removal to eligible persons, have been preliminarily enjoined. The temporary injunction, which the US Department of Justice plans to appeal to the Fifth Circuit Court of Appeals, comes in response to a legal challenge to the two programs by 26 states under Article II, section 3 of the US Constitution which requires the president to “take Care that the Laws be faithfully executed,” and under the Administrative Procedure Act (APA). In addition, the Republican majorities of the 114th Congress have vowed to prevent the implementation of these programs. However, the administration has expressed confidence that it will ultimately prevail in court and in its battle with Congress over these programs. Meanwhile, nongovernmental organizations (NGOs), community-based organizations (CBOs), and others continue to plan intensively for the DAPA and DACA programs, as well as for other executive action initiatives. This paper provides estimates of those who are potentially eligible for DAPA and DACA. However, it also looks beyond DAPA and DACA to make the case for broad legislative reform in light of long-term trends in unauthorized migration to the United States and the unauthorized resident population. In particular, it argues that substantial declines in the unauthorized population—a goal shared by partisans on both sides of the immigration debate—will require reform of the legal immigration system, legalization of a substantial percentage of the unauthorized, and a more effective response to nonimmigrant visa overstays.

Google, Inc. v. Oracle America, Inc., United States Supreme Court No. 14-410, Brief of Amici Curiae Intellectual Property Professors in Support of Grant of Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit

Amici Curiae are individuals who teach and write about intellectual property at accredited law schools in the United States. Amici submit this brief to express our views and our concerns. In ruling that the Java APIs at issue in this case are protectable expression as a matter of U.S. copyright law, the Federal Circuit has incorrectly applied binding Ninth Circuit precedents and issued an opinion that splits from rulings by the First, Second, Sixth, Ninth, Tenth, and Eleventh Circuit Court of Appeals. A reversal is warranted because of three foundational errors in the Federal Circuit’s analysis of software copyright law in the Oracle case.

ADR Briefs

On July 2, 2014, the Fifth Circuit Court of Appeals considered the creation and potential waiver of an arbitration provision in Al Rushaid (ARPD) v. Nat'l Oilwell Varco, Inc., (1.usa.gov/1tXonKF). Plaintiff ARPD had entered into a series of contracts with Aramco to supply certain drilling services. ARPD then entered into contracts with individual defendants, including NOV Norway, to purchase equipment for these oil rigs. The contracts were formed when ARPD accepted the quotations submitted by the defendants. The quotations included certain terms and conditions applicable to the transactions.

The Accidental Abstention Doctrine: After Nearly 30 Years, the Case for Diverting Federal Takings Claims to State Court Under Williamson County Has Yet to Be Made

In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), the Supreme Court ruled that a property owner must sue for damages in court to ripen a Fifth Amendment takings claim for federal adjudication. Two decades later, in San Remo Hotel v. City and County of San Francisco, the Court acknowledged what had long been clear to aggrieved litigants: Far from ripening a federal takings claim, complying with Williamson County’s state procedures rule normally extinguishes such claims, through the operation of ordinary principles of preclusion. Instead of coining a requirement, the Williamson County Court had accidentally created a de facto abstention doctrine.This article traces the origin and history of the Williamson County decision. A sharp conflict had arisen among the circuit courts of appeals over the propriety of abstaining in regulatory takings cases. The Ninth Circuit relegated such claims to court while retaining jurisdiction under Pullman abstention, while the Fourth Circuit dismissed them outright under Burford abstention. Rather than resolving this conflict – of which it did not seem to be aware – the Williamson County Court overlaid it with a new doctrine that allowed federal judges to waive their Article III jurisdiction over Fifth Amendment takings claims without meeting any of the stringent conditions required to abstain under either Pullman or Burford.Ironically, 11 years after Williamson County was handed down, the Court tightened its formal abstention requirements even more, foreclosing the dismissal of claims for damages under any abstention theory. Yet federal takings claimants continue to meet this fate every day, under the guise of Williamson County’s so-called ripeness requirement. This article concludes that the state-procedures rule is a doctrinal anomaly that cannot be justified. The Court has given a series of signals that it is backing away from the accidental abstention doctrine, and may soon jettison this poorly thought out bar to federal jurisdiction over Fifth Amendment takings claims.

Unresolved Issues Regarding the U.S. Foreign Tax Credit: A Case of the United Kingdom Windfall Tax

ABSTRACT In May 2013, the U.S. Supreme Court decided PPL Corp. & Subsidiaries v. Comm'r to resolve a split between the Third and Fifth Circuit Courts of Appeals regarding whether the U.K. windfall tax constitutes a creditable tax under Internal Revenue Code (IRC) Section 901. The results of this case have policy implications reaching far beyond a one-time foreign tax credit of $488 million for the three U.S. companies affected. In the Supreme Court decision on the U.K. windfall tax, the justices affirmed the substance over form approach to the net gain criteria in the Treasury Regulations and, thus, agreed that the foreign taxes should be creditable in this case. However, the justices left open the interpretation of the predominant character test, leaving unresolved issues regarding how this test should be interpreted in future cases and, specifically, what effect outliers may have on future interpretations of the foreign tax credit regulations. Thus, the purpose of this paper is to describe the origins of the U.K. windfall tax; highlight the Tax Court, Circuit Courts of Appeals, and Supreme Court decisions; and discuss the potential consequences for future tax policy stemming from this issue.

Nixon’s Southern Strategy Rebuffed: Senator Marlow W. Cook and the Defeat of Judge G. Harrold Carswell for the U.S. Supreme Court

Nixon’s Southern Strategy Rebuffed: Senator Marlow W. Cook and the Defeat of Judge G. Harrold Carswell for the U.S. Supreme Court John Paul Hill (bio) When President Richard M. Nixon nominated G. Harrold Carswell, a judge on the U.S. Fifth Circuit Court of Appeals, to the U.S. Supreme Court on January 19, 1970, the administration—and many political observers—believed that the judge would have little difficulty gaining confirmation in the U.S. Senate. After all, Nixon’s first choice for that seat, Judge Clement Haynsworth of South Carolina, had been voted down by the Senate by a 55–45 margin, and no president had witnessed the rejection of two consecutive Supreme Court nominees since Grover Cleveland in 1894.1 Moreover, on paper Carswell appeared to be an especially attractive candidate. Not only [End Page 613] was he a conservative—the type of judge that Nixon had promised to appoint while running for president in 1968—but he was also a southerner by birth (Georgia) and residence (Florida). Thus, his elevation to the high court promised to enhance Nixon’s “southern strategy” of currying favor with the white South.2 Besides, even if the Senate’s liberal bloc objected to his conservatism, Carswell’s lengthy legal résumé would, on the surface, still make him a convincing choice for the court. Before his confirmation to the court of appeals in June 1969, the fifty-year-old Carswell had served as a U.S. attorney for five years, 1953–58, and then as a federal judge in the Fifth Circuit District (northern Florida) for eleven, 1958–69.3 Furthermore, Carswell had easily won Senate confirmation to his most recent position within the past year. The Nixon administration assumed, therefore, that Carswell would have little trouble gaining Senate approval once again.4 Likewise, national newspapers and magazines anticipated little trouble for Carswell.5 These optimistic forecasts could not have been more off the mark, as a rash of troubles soon beset the nomination. Under pressure from Nixon to fill the vacancy quickly, the Justice Department had failed to vet Carswell thoroughly and had thus missed several embarrassing incidents from the judge’s past that immediately called into question his suitability for the Supreme Court. These episodes included Carswell’s defense of white supremacy in a speech he had made while running for the Georgia state legislature in 1948; his drafting of a [End Page 614] charter, while serving as a U.S. attorney, that created a Florida State University football booster club limited to whites only; his assistance in creating a private corporation—again during his stint as a U.S. attorney—to assume control of an all-white public golf course under court order to desegregate; and his and his wife’s purchase and sale of real estate with a racially restrictive covenant in the deed. Moreover, out-of-state attorneys, especially black lawyers, had accused Carswell of exhibiting hostility toward them in all cases related to civil rights.6 Carswell’s problems multiplied when the Ripon Society, a liberal Republican organization, and the Columbia University–based Law Students Concerned for the Court released a study showing that appellate courts had reversed 40.2 percent of Carswell’s decisions that they had reviewed during his eleven-year stint as a judge in the Fifth Circuit District, giving him the seventh highest reversal rate of the sixty-seven judges whose service in the district had overlapped his.7 This last disclosure raised genuine concerns about the judge’s competence to sit on the nation’s highest court. These damaging revelations weakened Carswell’s candidacy but did not necessarily destroy it. In fact, as the Senate’s vote on his nomination on April 8, 1970, approached, most political prognosticators believed that Carswell still had a respectable chance of winning the simple majority needed for Senate confirmation. A March 20 Washington Post survey, for example, counted forty senators in favor of Carswell’s nomination, thirty-one senators opposed, and twenty-nine undecided.8 Realizing that the nomination was in peril, the Nixon administration launched a vigorous effort to woo the undecided senators. Chief among these senators was freshman Republican Marlow...

When is a performance not a performance (but a copyright work)?

The law changes, regularly, but usually incrementally. Occasionally, however, it appears to undergo a seismic shift. In Garcia v Google, a recent split decision of the US Ninth Circuit Court of Appeals, the majority proposes, probably wrongly, such a shift in US Copyright Law – by making an actor's performance a copyright work independent of the material being performed. In so doing, the court now requires us to give serious consideration to matters of international copyright harmonization quite apart from the rather bizarre circumstances of that case.

Amicus Brief (Certiorari Stage) -- Kalyanaram v. New York Institute of Technology

Whistleblowers should not be required to pick their poison. They should not be penalized for following the law, particularly where, as here, the alleged “wrong” relied upon by the Second Circuit Court of Appeals was Petitioner’s compliance with the Act’s sealing provision. See 31 U.S.C. § 3730(b)(2) That provision expressly requires whistleblowers to maintain the confidentiality of qui tam lawsuits during the pendency of a government investigation. Petitioner followed the Act’s express mandate — and suffered the consequences.

Shareholder Litigation and Cost of Bank Loans -- Evidence from a Natural Experiment

I study how the threat of shareholder litigation affects the cost of bank loans using a natural experiment based on a ruling by the Ninth Circuit Court of Appeals. Using a difference-in-differences method, I find that increasing the difficulty of securities class action suits decreases loan spreads. The effect is stronger for firms with higher institutional ownership, which is consistent with the argument that class actions suits help shareholders extract wealth from creditors when the firm is in bankruptcy. Further analysis confirms that the effect is in fact stronger for firms closer to bankruptcy.

Acting with No Regret: A Twenty-Five Year Retrospective of Marsh v. Oregon Natural Resources Defense Council

In Marsh v. Oregon Natural Resources Defense Council, 490 U.S. 360, 371 (1989), the Supreme Court held that the National Environmental Policy Act of 1969 (NEPA) requires agencies to supplement environmental impact statements (EIS) upon discovering “new and significant” information. In the 25 years since Marsh, courts have often considered whether an agency should be enjoined from acting because its EIS does not adequately consider new and significant information. But, because “new and significant” information is not precisely defined, and because the circuit courts of appeals are split on how to review supplementation claims, NEPA practitioners face considerable uncertainty about when supplementation is required. This article provides NEPA practitioners with a roadmap for supplementation by (1) reviewing cases to determine what information is actually “new and significant” in practice and (2) examining what procedural steps an agency should take to evaluate new information. Generally, this article concludes that new information showing a previously-unconsidered but severe environmental impact will be significant but information that is similar to that previously considered, is vague or speculative, does not undermine important assumptions in the EIS, challenges common sense, or will be considered in future environmental reviews is not significant. And when considering new information, agencies should document their review, consult with established experts, directly respond to the new information, seek public input, and hire outside experts, when necessary. Armed with this roadmap, NEPA practitioners can better define, examine, and address information and its significance. With a better understanding of what information is significant, NEPA practitioners can comply with NEPA and Marsh and act with no regret.

Destined for an Epic Fail: The Problematic Guanttnamo Military Commissions

Guantanamo trial proceedings under the Military Commissions Act of 2009 reflect substantial improvement over those originally envisioned by the Bush administration, but still fall short of recognized legal standards. This article provides the most comprehensive critique of the current Obama administration commissions to date. It identifies key procedural deficiencies undermining their legitimacy, including excessive concentration of authority in the convening authority, limits on the right to counsel of choice, systemic inequalities between prosecution and defense, abuses of classification authority, and potential use of statements obtained through coercion, if not outright torture.Flaws in the substantive law are even more significant. Without valid jurisdiction, any trial is a legal nullity, and procedure becomes irrelevant. The Guantanamo tribunals necessarily draw their authority from the law of war, yet most charges levied to date fail to constitute recognized war crimes. Some charged conduct falls outside the temporal or legal scope of any recognized conflict. Law of war reliance also permits the invocation of unique defenses, including arguments that terrorist targets were valid objects of attack and that civilian deaths were permissible “collateral damage,” unavailable in ordinary criminal prosecutions. Pending cases drag through interminable pre-trial proceedings as every aspect of their untested procedure and jurisdiction is subject to challenge, while federal courts continue to routinely return convictions and long sentences in terrorism cases. Moreover, the commissions will be subject to years of additional post-trial and collateral challenges as well. They have already failed one major test before the Supreme Court and two before the D.C. Circuit Court of Appeals, and the future predictably holds more of the same.

Toward Sustainable Network-Openness Obligations on Broadband in the U.S.: Surviving Providerss First Amendment Challenges

On January 14, 2014, the D.C. Circuit Court of Appeals decided Verizon v. FCC, vacating and remanding parts of the FCC’s network neutrality rules released on December 23, 2010 in the Open Internet Order. The court affirmed the FCC’s authority to regulate broadband Internet access service under Sec. 706 of the Telecommunications Act of 1996, but vacated the FCC’s no-blocking and no unreasonable-discrimination rules as impermissible common carrier regulation of an information service. In response, the FCC has declined to seek appeal before the U.S. Supreme Court. Instead, the FCC has established a new docket, GN Docket no. 14-28, within which to consider how the FCC should proceed in light of the court’s guidance in Verizon v. FCC. Our paper suggests strategies for providing sustainable legal obligations in terms of network openness, such as no blocking and no unreasonable discrimination, on broadband service providers. We consider two strategic options the FCC may pursue upon remand. Option 1 is for the FCC to proceed to promulgate new rules under its Sec. 706 authority that was affirmed in Verizon v. FCC. Likely legal challenges to an FCC order pursuant to this option are: (1) challenge to the FCC’s exercise of its Sec. 706 authority; and (2) challenge of unconstitutionality under the First Amendment. In Verizon v. FCC, Verizon challenged the unconstitutionality of the FCC’s 2010 network neutrality rules under the First Amendment; however, the D.C. Circuit did not rule on this constitutional challenge, leaving this issue open. Option 2 is for the FCC to reclassify broadband Internet access service as a Title II telecommunications service (i.e. as a common carriage service) under the Communications Act of 1934. Upon reclassification, the FCC could then issue new network neutrality rules – in the same or a subsequent docket – under Title II as well as its Sec. 706 authority. Likely legal challenges to an FCC order pursuant to this option are: (1) challenge to the FCC’s reclassification of broadband Internet access service; (2) challenge to the FCC’s exercise of its Title II and Sec. 706 authority; and (3) challenge of unconstitutionality under the First Amendment. Our paper asserts that the legal challenges to an FCC order are less likely to succeed under Option 2 than under Option 1. First, the courts give great deference to FCC expertise in interpreting existing statutory language, with such deference applicable to an FCC reclassification of service based on a reassessment of circumstances under Option 2. Second, as to the same legal challenges under Options 1 and 2 of Sec. 706 authority and unconstitutionality under the First Amendment, we explain how the reclassification of broadband Internet access service as a Title II telecommunications service (common carriage service) not only expands the permissible scope of the FCC’s regulatory authority in conjunction with Sec. 706 – as compared to the scope of regulatory authority under Title I in conjunction with Sec. 706 – but also strengthens the FCC’s ability to defeat a constitutional challenge to its regulatory authority under the First Amendment. Thus, critical to the differences between Option 1 and 2 are the differing levels of First Amendment rights of common carriers relative to non-common carriers. Therefore, although requiring an additional administrative step of service reclassification, we conclude that Option 2 is a superior strategy to Option 1 for providing sustainable legal obligations in terms of network openness on broadband service providers given its greater likelihood of withstanding – highly inevitable – constitutional challenge.

<i>DIEBOLD</i> and the Not so Beautiful: Transferee Liability Trumps Tax Shelter

The Second Circuit Court of Appeals, in Diebold v. Commissioner, describes the requirements for finding transferee liability under Section 6901 of the Internal Revenue Code of 1986, as amended, here specifically under New York law, as state law predominates the determination of whether a person will be liable for federal taxes as a transferee. This case involved a so-called “Midco” transaction, whereby the goal was to avoid the corporate level taxes on the disposition of the assets of a C corporation. A sale by the shareholders of their C corporation stock and a sale by the C corporation of its assets were recharacterized as a sale by the C corporation of its assets and then a liquidating distribution of the sale proceeds to the shareholders of the C corporation. This recharacterization allowed the Second Circuit to hold that the C corporation's shareholders had transferee liability under New York law with respect to the tax liability recognized by the C corporation on the sale of its assets. A remand to the Tax Court concerns whether such recharacterization satisfies federal law.