Circuit Court Of Appeals Research Articles

Measuring Reed’s Reach: Content Discrimination in the U.S. Circuit Courts of Appeals After Reed v. Town of Gilbert

Commentators and justices on the Supreme Court of the United States speculated when the Court delivered its opinion in Reed v. Town of Gilbert in 2015 that the case would dramatically reshape First Amendment law. This article analyzes Reed’s impact to date in the United States Circuit Courts of Appeals. The article demonstrates that, although Reed has been consequential in some circuits, it has not been the basis of any First Amendment revolution. Indeed, the research supports the conclusion that many circuit courts seem to be actively working to narrow Reed’s reach. Moreover, the article concludes that Reed did little to clarify — and in some ways made worse — what has been a problematic doctrine for decades.

The Administrative State and The Death of Peter Gleason, MD: An Off-Label Case Report.

The Administrative State and The Death of Peter Gleason, MD: An Off-Label Case Report.

Sexual Orientation Discrimination As a Form of Sex-Plus Discrimination

This Article examines whether sexual orientation discrimination claims are a form of sex-plus discrimination under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment on the basis of “sex.” Until very recently, every United States Court of Appeals to have interpreted Title VII’s prohibition of sex discrimination had determined that it does not encompass discrimination claims on the basis of sexual orientation. Times, and judicial interpretations, are changing. In April 2017, the United States Court of Appeals for the Seventh Circuit overturned decades of precedent by holding that sexual orientation discrimination claims are indeed encompassed within Title VII’s prohibition of sex discrimination, a decision followed only months later by the Second Circuit Court of Appeals. Although there is little mention of sex-plus discrimination in these watershed cases, this Article shows how aspects of the sex-plus doctrine are interwoven throughout the majority and concurring opinions in those cases. From there, this Article argues that sex-plus theory is a valid basis upon which to recognize sexual orientation discrimination claims under Title VII, and contends that as other courts revisit whether Title VII applies to such claims, those courts should phrase the issue in sex-plus terms.

Appeals Court Upholds Most of Obama‐Era Board Ruling on Joint Employer Status

Marking the latest but far from the last chapter in the ongoing controversy over determination of joint employment status, the D.C. Circuit Court of Appeals has largely upheld the analysis found in the Board's decision in Browning‐Ferris. See Browning‐Ferris Indus. of Cal., Inc. v. NLRB, No. 16‐1028 (D.C. Cir. Dec. 28, 2018). The National Labor Relations Board is currently engaged in rulemaking on this topic.

Court Rules Individual Mandate, Entire ACA Unconstitutional.

The holiday season brought a potentially fatal blow to the Affordable Care Act, but enrollment remained steady, and the law remains in place.

Two-Sided Red Herrings

A surprising amount of debate leading up to the Supreme Court’s decision in American Express, and the commentary following this landmark ruling, attempt to trivialize and marginalize the modern economic learning on multi-sided platforms. Despite these efforts the 2nd Circuit Court of Appeals and the Supreme Court ultimately embraced the economic literature on these business models. This article debunks five red herrings that have been floated in the debate: (1) the two sides are just complements, nothing new there; (2) everything is two-sided, or who’s to know what’s two-sided; (3) as industries mature two-sidedness goes away; (4) markets must be one sided since the services to the two sides aren’t interchangeable; and (5) two-sided analysis “devastates” antitrust law. The Supreme Court’s decision has raised a host of interesting issues, including how to deal with two-sided platform businesses that look different from American Express’s credit-card platform and what sort of evidence is necessary or sufficient in markets with platform businesses to establish competitive effects. Like any Supreme Court decision, not every word was chosen as carefully as it might have been, and clarifications will be needed going forward. The large and evolving literature on two-sided platforms will prove helpful to sort that out and we anticipate that the courts will embrace this constructive approach.

Evident Partiality and the Judicial Review of Investor-State Dispute Settlement Awards: An Argument for ISDS Reform

International investment law, and particularly investor state dispute settlement (ISDS) is currently the subject of many heated debates, from the fairness of bilateral investment treaties, to the lack of precedent in ISDS, to the impartiality of arbitrators. This article examines national judicial review of international investment arbitral awards in the context of U.S. domestic law, focusing on evident partiality and the appropriate standard of deference to be applied to such awards, particularly in the case where challenges to arbitrator integrity were denied at the arbitration stage. National courts are not the ideal fora for adjudicating challenges to ISDS awards, as evidenced by differing standards of deference across jurisdictions and the lack of familiarity with international treaties and international rules of arbitration. Addressing the problem at its root, namely through amending international rules of arbitration or by creating additional levels of international review would be more effective. The problem of arbitrator partiality in ISDS is reflective of systemic problems. This article argues that the issues of interpretation arising in reviewing ISDS awards before domestic courts suggest that reform of the ISDS system would be a more effective means of safeguarding party interests from arbitrator conflict of interest or corruption. This article builds on the standard of deference established by the Supreme Court in BG Group, focusing on the Argentina v. AWG Group case that was decided by the D.C. Circuit Court of Appeals in July 2018. In reviewing the Argentina v. AWG Group case, the article highlights some of the challenges in having domestic courts review ISDS awards. At the same time, the article argues that while a high level of deference to international arbitration awards is usually desirable, the standard of review with respect to ISDS claims should be clarified by U.S. courts as deference is not always the correct standard. Where the integrity of the arbitral tribunal itself is in question, that deference should be set aside in favor of closer review. Conflicts of interest that might elsewhere be viewed as significant enough to disqualify arbitrators from participating in arbitrations are viewed as commonplace in international investment arbitration and considered an inherent part of the system. This should not be the case.

High court nominee likely to limit agency authority

If confirmed to the U.S. Supreme Court, U.S. District Judge Brett M. Kavanaugh will be reliably conservative and show deference to presidential power, legal scholars say. He is also likely to limit authority of regulatory agencies such as EPA and OSHA. Kavanaugh has served for 12 years on the D.C. Circuit Court of Appeals. He has voiced skepticism about the validity of several key environmental laws. Among them is the Clean Power Plan, which seeks to reduce carbon dioxide emission from coal-fired power plants, notes Ann Carlson, a UCLA law school professor and environmental law expert. Kavanaugh also voted to strike down the Clean Air Interstate Rule, which regulates cross-border pollution from power plants—a decision that was later overturned by the Supreme Court, Carlson adds. Kavanaugh “may believe that global warming is a real problem, but he’s not going to recognize EPA’s power to do much at all to regulate

Challenging the Punitiveness of “New-Generation” Sorn Laws

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This article examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto–based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

The PACT Act as Indicium of the Due Process Validity of the Marketplace Fairness Act

If passed into law, the Marketplace Fairness Act would impose a federal duty on out-of-state sellers to collect a state-defined and state-benefitting use tax. This unique exercise of federal power implicates due process. The Prevent All Cigarette Trafficking Act of 2009 (PACT Act) represents the only other instance in which Congress has similarly compelled state law compliance. Two circuit courts of appeals have found the PACT Act vulnerable on concerns of due process. This Article relies on the PACT Act analogue to simulate how the Marketplace Fairness Act would fare under similar scrutiny. To this end and in this uncommon context, two novel constitutional questions are considered: (1) with which sovereign, the federal government or the state, are minimum contacts measured; and (2) if measured with the state, is a single sale sufficient to meet due process thresholds?On balance, the courts and the literature suggest that minimum contacts should be measured between the out-ofstate seller and the state exacting sales tax collection responsibilities. If this is true, the Marketplace Fairness Act may violate the Due Process Clause for lack of minimum contacts as it imposes a sales tax collection responsibility on out-of-state sellers with as little as a single in-state sale. A recommendation is offered by which Congress may preemptively alleviate concerns related to the magnitude of minimum contacts.

Brief of Amici Curiae Constitutional Law Scholars in Christie V. National Collegiate Athletic Association

The Professional and Amateur Sports Protection Act of 1992 (PASPA) makes it unlawful, among other things, for a state to authorize sports gambling. This Amicus Brief, drafted by Professor Robert A. Mikos and other law professors, argues that PASPA is unconstitutional as applied to New Jersey’s 2014 sports gambling law (SB2460). Because the New Jersey law merely repeals the state's own ban on sports gambling, it cannot be preempted by Congress without violating the Supreme Court's anti-commandeering doctrine. See Printz v. United Sates, 521 U.S. 898 (1997). Characterizing the law as authorizing, affirmatively permitting, or empowering, etc. once-forbidden conduct does not alter the practical effect of the law--it still only eliminates state-imposed sanctions on sports gambling, something a state is entitled to do under the anti-commandeering rule. Indeed, upholding a congressional power to prevent states from repealing state-law prohibitions on conduct could jeopardize a variety of recent state reforms to policies governing everything from marijuana to firearms. The Brief urges the Supreme Court to reverse the decision of the Third Circuit Court of Appeals in National Collegiate Athletic Association v. Christie, 832 F.3d 389 (3d Cir. 2016), and in so doing, to help clarify the boundary between permissible preemption and impermissible commandeering.

“A Spy Who Turned His Family In”: Revisiting David Greenglass and the Rosenberg Case

“Doubtless if that [Greenglass] testimony were disregarded, the convictions could not stand.” (Opinion of the US Circuit Court of Appeals affirming the convictions of Julius and Ethel Rosenberg)Eth...

Under the Law

Many states are changing teacher contracts to eliminate opportunities for tenure. Julie Underwood explores the constitutional implications of these changes, noting that a federal circuit court of appeals and the North Carolina Supreme Court both found that states cannot retroactively revoke tenure that had previously been granted.

Brief of Professors of Conflict of Laws As Amici Curiae in Support of Appellants, in Re. Irving H. Picard, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC

This amicus brief was filed with the Second Circuit Court of Appeals in the Madoff bankruptcy case. The brief was written by Professor William S. Dodge and joined by Professors George A. Bermann, Hannah L. Buxbaum, Zachary D. Clopton, Anthony J. Colangelo, Maggie Gardner, Ralf Michaels, Aaron D. Simowitz, and Christopher A. Whytock. The question on appeal is the geographic scope of Bankruptcy Code § 550(a), which allows a trustee to recover the property of an avoided transfer not just from the initial transferee but also from “any immediate or mediate transferee of such initial transferee.” Many of the investments in Madoff Investment Securities were made through feeder funds. Some of these funds withdrew money in New York, which they subsequently distributed to their own customers. The Trustee seeks to recover payments made to the subsequent transferees. The bankruptcy court dismissed most of the Trustee’s claims against subsequent transferees based on the choice-of-law analysis adopted in Maxell Communications (which the court called “international comity”) and the presumption against extraterritoriality. The amicus brief argues that under the presumption against extraterritoriality, Section 550(a) applies to the subsequent transferees for two reasons. First, the property to which Section 550(a) refers includes property “wherever located,” providing an affirmative indication that Section 550(a) applies extraterritorially. Second, and in the alternative, the focus of Section 550(a) is the initial transfer that depleted the estate in the United States. The amicus brief also argues that application of Section 550(a) is reasonable under Maxwell Communications because the debtor is American, the initial transfer depleted the estate in the United States, and there are no parallel foreign proceedings.

Sitting by Designation: Retired Justice Tom C. Clark’s Federal Court Service

Sitting by Designation: Retired Justice Tom C. Clark’s Federal Court Service CRAIG ALAN SMITH Introduction In March 1967, Associate Justice Tom C. Clark announced his Supreme Court retire­ ment soon after his son, Ramsey, was nominated to become U.S. Attorney General. Clark planned to retire at the end of the term to avoid any appearance of impropriety. He was sixty-seven years old, he had served on the Court for eighteen years, and he could continue judging on any other federal court with the ChiefJustice’s approval.1 Like other retired Justices, Clark brought a certain distinction when he sat “by designation,” but the impact of his decisions was—and continues to be—far greater. Over the course of ten years, literally until the day he died, Clark set a remarkable pace for himself: making over sixty visits to different Circuit Courts ofAppeals and participating in around 575 appellate cases. In addition to sitting on every geographic circuit (at the time, there were ten circuits plus the D.C. Circuit) and presiding over several district court trials, Clark also served as Special Master and on the Court of Customs and Patent Appeals (CCPA), the Court of Claims, and the Customs Court.2 Most accounts ofClark’s retirement have focused on his efforts to improve judicial administration, so much so that historian Michael Belknap concluded, “Reflecting the intensity of Clark’s interest in judicial administration and the importance of his efforts to reform it, more articles can be found on this subject than on any aspect of his work on the bench.”3 As a result, Clark’s lower court service has received scant scholarly attention. Without examining his rulings, two purported biographies mentioned some of his district court trials as well as three of his appellate opinions facing Supreme Court review.4 Other accounts of Clark’s lower court service counted his record rather than analyzing it. At times, even counting Clark’s opinions came up short.5 Therefore, Clark’s 322 JOURNAL OF SUPREME COURT HISTORY lower court judging was usually lauded for one remarkable feat—that he judged on every geographic circuit.6 However, that failed to address larger questions, for example, how he influenced opinion assignments, whether his position on lower federal courts was consis­ tent with his Supreme Court service, how he made use of Supreme Court decisions, and how his district and appellate opinions fared under circuit or Supreme Court review.7 These larger questions, including whether his appellate opinions addressed significant con­ temporary issues, are the subject of this article, which offers the first comprehensive analysis of Clark’s role and influence as a lower court federal judge. His judgments had greater impact than the geographic extent of his judging and the sheer number of his opinions. What he decided, how he reached his conclusions, and whether those rulings made a lasting difference deserve greater attention.8 Clark’s Lower Court Service and Influence Clark began his lower federal court service soon after his Supreme Court retire­ ment—in fact, much sooner than previously recognized. He sat first with the CCPA in December 1967, releasing his first opinion six months later.9 Next, he had his one and only sitting with the Court of Claims, but he authored no opinions there.10 One year later, he sat with the Second Circuit Court of Appeals, where he spent more time but did not write more opinions than in other circuits. He returned to the CCPA in June 1969 and sat with the Seventh Circuit in May 1970 before making his first appearance as a district court judge in San Francisco." Initially, Clark was hesitant to accept Chief Judge George Harris’s invitation to serve on the Northern District of California. He had never judged a jury trial; in fact, the last time he even participated in a jury trial was twenty-six years earlier as an assistant attorney general in the prosecution of two Nazi spies before a military commission. “What disturbed me,” Clark later said, “were the rules of evidence. They change from time to time.... [but] I soon found that you become accustomed to it. Instead of getting butterflies, I looked...

Brief of Amicus Curiae Researcher John T. Holden in Support of Petitioners: Christie v. NCAA Et Al.

The Third Circuit Court of Appeals’ en banc interpretation of the Professional and Amateur Sports Protection Act of 1992, 28 U.S.C. §§ 3701-3704 (PASPA), has impermissibly expanded the scope of Federal powers so as to prevent States from modifying or repealing their own statutes. Requiring the State of New Jersey to maintain its own provisions prohibiting sports gambling forces the State to employ their police powers to effectuate Federal policy. The commandeering of New Jersey’s ability to repeal its own laws is incompatible with this Court’s decisions in New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997). The determination of the Third Circuit that the law which New Jersey passed in 2012, N.J. STAT. §§ 5:12A-1-5:12A-6, was rightfully preempted by PASPA and did not violate the anticommandeering doctrine raises meaningful questions about the rights of the States. Nat’l Collegiate Athletic Ass’n v. Christie, 730 F.3d 208 (3d Cir. 2013) (hereinafter “Christie I”). However, the Third Circuit’s later en banc determination in 2016 that New Jersey was bound in perpetuity to maintain its ban on sports wagering with no ability to modify the statute is beyond the scope of the Federal government’s powers. Nat’l Collegiate Athletic Ass’n v. Chistie, 832 F.3d 389 (3d Cir. 2016) (hereinafter “Christie II”). The Federal government cannot require a State to enforce its own laws. The powers of the States and Federal governments are separate and unequal, with the Federal government confined to enforce its own laws, without conscripting either state legislatures or state officers. See Printz v. United States, 521 U.S. 898, 935 (1997). The Federal government is forbidden from forcing States to enact any law or require State officials to enforce Federal law within the officials’ own State. Printz v. United States, 521 U.S. 898, 912 (1997). The extension thereof is that the Federal government cannot utilize Federal law to prohibit states from repealing, in part or in whole, their existing regulations thereby commandeering the State legislative process. See Erwin Chemerinsky et al., Cooperative Federalism and Marijuana Regulation, 62 UCLA L. REV. 74, 103 (2015). The Federal government is able to utilize its law making and enforcement authority free from State-level interference; however, the Federal government cannot commandeer or dictate how States regulate private conduct. The Federal government has power to regulate conduct beyond impermissibly “seeking to control or influence the manner in which States regulate private parties.” Reno v. Condon, 528 U.S. 141, 151 (2000).

Does the Packers and Stockyards Act Require Antitrust Harm?

The Packers and Stockyards Act was enacted in 1921. Congress was plainly influenced by the 1919 publication of a Federal Trade Commission Report on the meatpacking industry. Consistent with the FTC’s jurisdiction and concerns, the Report dealt with deceptive and unfair practices as well as practices that were believed to violate the antitrust laws. The language of the PSA does much the same, mixing the two. Of its seven specific prohibitions, three contain antitrust-like provisions requiring a lessening of competition. Two others reach unfair and tort-like conduct without any requirement of harm to competition. The remaining two reach both anticompetitive and tortuous conspiracies. One of the conspiracy provisions plainly reaches price fixing and market division agreements. The other plainly reaches a full range of tortious and anticompetitive conduct without stating a harm to competition requirement.This brief essay considers the wisdom of holdings in half a dozen Circuit Courts of Appeal that even those sections of the statute that do not explicitly require harm to competition must be interpreted as if they did.

Why the Claim that Markets with Two-Sided Platforms Become One-Sided When They Mature is Wrong

Several economists have claimed that markets in which two-sided firms compete become one-sided at maturity, when everyone has joined a platform. That is, they assert that in mature markets policymakers, such as courts in antitrust cases, can properly exclude one side from consideration, even though both sides matter to the two-sided firms involved. One court—in U.S. Airways v. Sabre—has agreed. For the purposes of analyzing alleged anticompetitive practices by Sabre, which operates a Global Distribution Services (GDS) platform serving airlines and travel agents, the court allowed the jury to ignore the travel agent side of the platform. The Second Circuit Court of Appeals is now considering this matter. Our Amicus Brief explains why the mature market theory proposed by these economists, which is based on nothing more than assertion, is not consistent with the foundational papers on two-sided platforms, with the competitive realities faced by two-sided firms in mature markets, or with standard principles for defining relevant markets in antitrust cases.

Amicus Brief of the Constitution Project Submitted to D.C. Circuit Court of Appeals in Smith v. Trump

In Smith v. Obama (2016), the District Court found that Captain Smith’s action presents a political question for three reasons: first, it presented questions committed to the political branches of government; second, the courts are ill-equipped to resolve those questions; and third, there is no conflict between Congress and the President regarding the lawfulness of the war against ISIS. In this brief, amici ask the DC Circuit to reverse that ruling, arguing that the District Court erred in each of those findings. First, the Supreme Court has previously reached the merits to decide two seminal cases that are directly on point — Little v. Barreme (1804) and Youngstown Sheet & Tube Co. v. Sawyer (1952) — without even considering the possibility that either presented a political question. Second, judicial fact-finding incapacities present an evidentiary hurdle that a plaintiff can overcome by meeting the applicable burden of persuasion, not an insurmountable justiciability barrier that prevents a plaintiff from even attempting to do so. And third, the District Court could conclude that no conflict exists between Congress and the president only by holding sub silentio that the War Powers Resolution’s clear statement rule is unconstitutional — thus creating an issue of statutory validity that the Supreme Court has emphasized does not present a political question.

Drug-sniffing Dog in the Shared Hallway of an Apartment Building: Reasonable Expectation of Privacy? United States v. Whitaker (2016)

In United States v. Whitaker,1 1 820 F.3d 849 (2016). the Seventh Circuit Court of Appeals held that when the police used a drug-sniffing dog in the shared hallway of an apartment building to gathe...