Federal Cases Research Articles

“The Magic of Numbers is Strong”:Hobson v Hansenand Contested Social Science in Judicial Decision Making

AbstractHobson v. Hansen(1967) is best known as the first federal court case to rule against discriminatory use of standardized tests in the context of educational tracking. It was also significant as one of the first desegregation cases afterBrown v Board of Education(1954) to use psychological evidence in its ruling. This essay briefly examines the debates over ability testing beforeHobson,the contexts of post-desegregation D.C. educational politics that shaped the case, the social scientific evidence presented in the case, and its application to the court’s ruling. It argues that while scholars have correctly acknowledged the court’s mistaken assumptions about testing, the evidence presented of testing bias nevertheless cogently illustrated a broader constellation of discriminatory District practices. A review of the testimony suggests that while the psychological evidence was central to the court’s ruling, the opinion rested less on the resolution of social scientific debates over testing bias than it did on the need to determine the justification of ability testing in the context of District tracking practices. Although sweeping in scope, the decision did little to resolve long running disputes over ability testing. Instead, it only helped inaugurate a more heated and contentious legal environment for educational testing in the coming decades.

The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline

Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court, or to punt federal cases to administrative agencies that may lack the power or will to resolve the underlying issues in the case. These efforts have largely been successful. This Article offers a panoramic view of how over recent decades federal courts have acquiesced in a corporate-driven effort to leverage jurisdictional doctrines to their unique private advantage, and contends that together, these doctrinal changes constitute an inflection point in U.S. law and procedure. We argue that corporate adjudicatory practice has slanted judicial power in favor of deregulatory efforts that undermine legal commitments to equality, dignity, and participation. The shifts in jurisdiction, which may seem to be merely technical and apolitical, are a core part of the architecture of what we call the oligarchic courthouse—one where courts as public institutions transform their procedures to meet private, corporate interests at the expense of public goals, thereby cementing economic power and translating it into concentrated political power that undermines the possibility of robust democratic life. The trends we describe in federal subject matter jurisdiction resonate with earlier corporate battles at the turn of the twentieth century. But the construction of today’s oligarchic courthouse holds implications for democracy that are not simply a reprise of earlier corporate efforts. To show the scope of the implications, the Article steps back and clarifies why jurisdiction matters to democracy. Drawing on law and social mobilization literature, we argue that jurisdiction functions as a political resource that facilitates opportunities for democratic contestation and both reflects and shapes the openness and closedness of the state. Having centered jurisdiction in a larger account of democracy, we explore how the oligarchic courthouse, by entrenching economic power and narrowing participatory options for workers, consumers, and other less-resourced litigants, can be nested in a larger account of democratic decline in the United States.

Weaponizing free speech protections in U.S. higher education: the ugly impact of assaultive speech on Black women students

First Amendment protections for blackface in U.S. higher education have for too long fostered hostile educational environments for Black women and other racially minoritized and marginalized communities. Institutions dedicated to inclusive learning environments can no longer ignore these abuses and have an opportunity and obligation to challenge and disrupt the protections long afforded to assaultive speech. However, overturning these problematic gendered-anti-Black racist narratives of interpreting caricatures of Black women's bodies with blackface and exaggerated body parts as harmless entertainment of means centering the voices, perspectives and lived truths of Black women. I use what I call an Intersectionality Discourse Analysis to analyze two subsequent federal court cases involving a white fraternity's ugly woman contest at a public U.S. university and free speech theory. In my recommendations I urge institutional leaders to take an unapologetic stance in sanctioning assaultive speech and to petition the courts to support their decision-making.

"TURN TO THE EAST" AND TRENDS OF MODERN REGIONAL DEVELOPMENT: SIBERIAN VECTOR

The change in foreign policy targets raises the question of a “turn to the East,” which requires a reassessment of the role of the Siberian macroregion in domestic geopolitics. The leading long-term factors in overcoming geopolitical risks affecting the stable development of Russian society and the qualitative transformation of its institutions are the harmonization of the mobilization and innovation components of modernization and the success of integration projects in the Eurasian space. The main conclusions of the study are ascertaining the need for (1) state support for the development of innovative processes that allow leveling the disproportions of regional development and strengthening the potential of the technological sovereignty of the Russian Federation (case study of the Academgorodok 2.0 project), and (2) reorientation to cross-border cooperation within the framework of integration projects (case of "Greater Eurasia"). Raising the status of Siberia in strategic planning thus turns out to be an integral part of the reflection of the “turn to the East”.

Shedding light on dark figures: Steps towards a methodology for estimating actual numbers of COVID-19 infections in Germany based on Google Trends.

In order to shed light on unmeasurable real-world phenomena, we investigate exemplarily the actual number of COVID-19 infections in Germany based on big data. The true occurrence of infections is not visible, since not every infected person is tested. This paper demonstrates that coronavirus-related search queries issued on Google can depict true infection levels appropriately. We find significant correlation between search volume and national as well as federal COVID-19 cases as reported by RKI. Additionally, we discover indications that the queries are indeed causal for infection levels. Finally, this approach can replicate varying dark figures throughout different periods of the pandemic and enables early insights into the true spread of future virus outbreaks. This is of high relevance for society in order to assess and understand the current situation during virus outbreaks and for decision-makers to take adequate and justifiable health measures.

2. Canada

In the past year, unfazed by the logistical challenges posed by the COVID-19 pandemic, Canada continued to make substantial legal and political advancements towards a more robust regime of environmental protection. In terms of federal case law, the References re Greenhouse Gas Pollution Pricing Act reached the Supreme Court of Canada, where it was confirmed in March that the federal Parliament has the jurisdiction to enact minimum national standards of a greenhouse gas pricing law (2021 SCC 11, <https://www.scc-csc.ca/case-dossier/cb/2021/38663-38781-39116-eng.aspx>). Hence, the constitutionality of the 2018 Greenhouse Gas Pollution Pricing Act was also upheld. At a subnational level, provincially, the British Columbia Court of Appeal declared, in Victory Motors (Abbotsford) Ltd v Actton Super-Save Gas Stations Ltd (Victory Motors), that the Environmental Management Act does not preclude ‘full indemnification’ of all legal costs reasonably incurred from remediating contaminated land (2021 BCCA 129, <https://www.bccourts.ca/jdb-txt/ca/21/01/2021BCCA0129.htm>). The Ontario Divisional Court in September found in Greenpeace Canada (2471256 Canada Inc) that the Ministry of Municipal Affairs and Housing failed to comply with the public consultation requirements under section 15 of the Environmental Bill of Rights (EBR), prior to expanding Ministerial Zoning Orders on the Environmental Registry (2021 ONSC 4521, <https://www.canlii.org/en/on/onscdc/doc/2021/2021onsc4521/2021onsc4521.html?autocompleteStr=2021%20ONSC%204521&autocompletePos=1>). It should also be noted that the Local Planning Appeal Tribunal, Environmental Review Tribunal, Board of Negotiation, Conservation Review Board, and the Mining and Lands Tribunal have been consolidated into a singular institution: the Ontario Land Tribunal (OLT).

브라운'을 기대하며: 멘데스 대 웨스트민스터(Mendez v. Westminster) 소송과 멕시코계 미국인의 학교분리에 대한 도전

This study is about the struggle of Mexican Americans against the forced segregation of Mexican American children in public schools, especially focusing on Mendez v. Westminster School District, a 1946 federal court case. This case, as the culmination of the long history of Mexican Americans'' fight for school desegregation ruled the segregation of Mexican American children into separate schools violated the California State law and the equal protection and due process clauses of the 14th Constitutional amendment. In fact, this case ruled "separate but equal" school for Mexican American children unconstitutional and paved the way for Brown. Thus, this study, discussing the Mendez case as a part of the long history of school desegregation cases in the U.S. provides an opportunity to acknowledge the fact that Mexican Americans have been important participants in the struggle for civil rights in the U.S.

APA’s Government, Policy, and Advocacy Update (September 2022)

Back to table of contents Previous article Next article Government & LegalFull AccessAPA’s Government, Policy, and Advocacy Update (September 2022)Search for more papers by this authorPublished Online:25 Aug 2022https://doi.org/10.1176/appi.pn.2022.09.9.28Health Care Groups Release Statement Opposing Legislative Interference in CareJoined by more than 75 other organizations representing health care professionals, APA issued a statement emphasizing its opposition to all legislative interference in the patient-clinician relationship. The statement was made as the country’s health care system enters the post-Roe v. Wade era and abortion bans have gone into effect across the country.The wave of abortion bans “will harm patients, impair the integrity of the medical profession, and have a devastating and unquantifiable impact on the patients and clinicians it affects,” the statement reads. “People in at least half the states will now face a cruel choice between traveling hundreds of miles to receive abortion care (which is simply impossible for those who lack the resources, means, and opportunity) or being forced to continue with a pregnancy that may threaten their health, well-being, and future.”Clinicians practicing in those states will similarly face an untenable decision, the statement continues: risk criminal prosecution by providing evidence-based care or withholding safe and effective reproductive health care from patients in need.“More Than 75 Health Care Organizations Release Joint Statement in Opposition to Legislative Interference” APA Provides Comments on Patient Experience Survey for Mental Health SettingsThe Agency for Healthcare Research and Quality (AHRQ) is developing a version of the Consumer Assessment of Healthcare Providers and Systems (CAHPS) survey, a tool for assessing patients’ experiences with health care, for use in inpatient mental health settings.Versions of the CAHPS survey are used in a variety of other health care settings and have been incorporated into federal quality and payment programs, such as the Centers for Medicare and Medicaid Services’ Merit-Based Incentive Payment System and the Hospital Value-Based Purchasing Program.APA responded to a request for information that AHRQ released, providing input and suggestions. For example, APA advised that in an inpatient mental health setting, the survey should address patient involvement in care, including questions such as, “Do you feel like staff listened to you and respected you?” APA also noted the benefits and limitations of a patient experience survey in an inpatient mental health setting. Many patients are admitted involuntarily or their illness may affect their insight about the need for hospitalization or understanding of survey questions. Nonetheless, these patients should be surveyed to help lead to targeted interventions to improve the experience of patients like them, APA advised.APA’s comments Medical Groups Sound Alarm on Lawsuit Threatening Preventive CareAPA joined 60 other organizations, including the AMA, in issuing a statement warning that a federal court case could cause millions of Americans to lose access to preventive services.Kelley v. Becerra, filed in the Northern District of Texas, “could significantly jeopardize the coverage of preventive health care services for millions of Americans with private health insurances,” the statement reads. The lawsuit questions the constitutionality of section 2713 of the Affordable Care Act, which requires insurers and group health plans to cover more than 100 preventive health services at no cost to patients.“Our patients cannot afford to lose this critical access to preventive health care services,” the statement reads. “Rolling back this access would reverse important progress and make it harder for physicians to diagnose and treat diseases and medical conditions that, if caught early, are significantly more manageable.”The news release APA Expresses Support for REDI Act, Suicide Prevention ActIn July, APA signed on to letters to Congress expressing support for two pieces of legislation that would address high student loan debts and suicide prevention.The Resident Education Deferred Interest (REDI) Act (S 3658/HR 4122) would allow borrowers to qualify for interest-free deferment on their student loans while completing a medical or dental internship or residency program.“This bill would prevent medical and dental residents from being penalized during residency and save them thousands of dollars in interest,” the letter reads. It was sent to leaders of the Senate Health, Education, Labor, and Pensions Committee and the House Committee on Education and Labor.Additionally, APA joined a letter to Sens. Jack Reed (D-R.I.) and Jerry Moran (R-Kan.), cosponsors of the Suicide Prevention Act (S 4448). The bill would expand data collection and surveillance of suicide attempts and other instances of self-harm in state and local health departments, “allowing for a more timely and accurate response to concerning public health trends,” the letter states.The Suicide Prevention Act would also create a grant program to fund suicide prevention programs in hospital emergency rooms. “Equipping emergency department staff with the tools and training needed to recognize suicide risk in patients and refer them for appropriate follow-up is vital in ensuring that patients are being treated swiftly and given the care they need,” the letter states. ■ ISSUES NewArchived

Social impacts of coconet enterprise on smallholder coconut farming family: The case of Panaon Island Farmers Federation Inc. in the Philippines

This study looked into the social impacts of the cocotwine-coconet-making enterprise of the Panaon Island Farmers Federation, Inc. The study followed the constructivist research approach. Results showed that the enterprise had positive and negative impacts on PIFFI members, their families, PIFFI as an organization, their communities and their environment. Most impacts were positive, including acquisition of new knowledge and skills, improved economic productivity and income, changed values, built courage and confidence to take investment risk, molded financial discipline, strengthened family bond, reinforced community cohesion and improved the environment, among others. As a farmers’ organization, PIFFI demonstrated interest, capability and willingness to sacrifice to make its livelihood enterprise succeed. Smallholder coconut farmers organizations, like PIFFI, that demonstrate such characteristics deserve government assistance to enable them to optimize positive impacts of the livelihood enterprises that they are engaged in.

Women Refugees and the Development of US Asylum Law: 1980-present

Abstract Over the past three decades, the US has developed a robust body of gender asylum law, including claims of women subject to sexual violence or other serious harm for reasons of gender. This body of law both reflects and has been a catalyst for larger shifts in US jurisprudence recognising the international treaty law basis of domestic asylum law. For years such progress was stymied by a dominant Cold War ideological decision-making paradigm and a woefully inadequate and politicised administrative bureaucracy. The growth of a domestic and international women’s rights movement, and more meaningful engagement by the US judiciary, have resulted in substantial changes. Although progress remains incomplete, today there is a significant body of administrative and federal judicial case law incorporating gender into the interpretation of key categories in refugee law, including gender-defined particular social groups (PSG) and gender-based claims under the political, race and religion grounds in the definition of refugee. These more principled developments have proven vulnerable to politics, particularly under the administration of President Donald J. Trump. However, a new approach, based in part on a clearer, regulatory articulation of doctrine, holds promise for the development of a more coherent and principled body of jurisprudence. This article places US gender asylum in the context of the larger political landscape (i.e., the Cold War, and post-Cold War politics). The article also attempts to draw the links between the development of gender asylum law and larger social and legal change movements, including a domestic and international women’s rights movements focused on issues of sexual violence and violence in the home or “domestic violence.”

Congress and Insider Trading: Breaking the Law and Making the Law

This descriptive case study concerns the insider trading prosecution against former U.S. Representative Chris Collins, which resulted in his guilty plea in 2018, incarceration, and then release in December 2020, after receiving a pardon by outgoing president Donald Trump. It uses that case’s unique facts as a launching point and thematic device for summarizing illegal insider trading law, while emphasizing the difficulty in recognizing that insider trading law requires first that the wrongful trader have—and violate— a fiduciary duty. This is done by noting the influence federal case law has had on determining what insider trading is. The case study then continues the congressional line of analysis by focusing on the 2012 STOCK Act, which prohibits Congress from profiting off their access to inside information, as well as the Insider Trading Prohibition Act, current legislation that might become America’s first, criminal insider trading statute.

Aberrations monstrueuses dans la doctrine juridique roumaine sur la situation en Ukraine

The doctrinal opinions claiming that, in the Ukraine vs. Russian Federation Case, the International Court of Justice's provisional measures order finds evidence of acts of genocide perpetrated in Ukraine, or that the International Criminal Court has no jurisdiction for the crime of aggression because the Rome Statute gives no definition of the crime of aggression are scientific aberrations.

10. Do Plastic Surgery Residents Get Sued? An Analysis of Malpractice Lawsuits

Background: Residents may be implicated in malpractice lawsuits. Our study aims to examine medical malpractice lawsuits involving plastic surgery trainees. Methods: Using the LexisNexis legal database, jury verdicts and settlements from all appellate state and federal cases between February 1988 and 2020 were queried, and a non-representative sample of over 300 cases was compiled, each of which were manually reviewed by 2 authors (A.G. and S.J.). Results: During a 30-year period, 22 malpractice cases involving plastic surgery trainees were identified. Of these cases, 15 (68.2%) involved claims in which a trainee was directly named as a defendant. A total of 18 (81.8%) cases were due to procedural-related adverse outcomes, while 4 (18.2%) cases were associated with clinical or diagnostic-related adverse outcomes. Of the procedure-related cases, 5 (27.8%) occurred when the trainee was the lead surgeon. Allegations raised by plaintiffs included lack of informed consent of procedure complications (12, 54.5%), procedural error (11, 50%), failure to supervise a trainee (11, 50%), inexperience of the trainee (8, 36.4%), incorrect diagnosis or treatment (5, 22.7%), a delay in evaluation (3 cases, 13.6%), lack of informed consent of resident being involved (3, 13.6%), lack of follow-up care (3, 13.6%), and prolonged operative time (1, 4.5%). The median time from injury to lawsuit resolution was 3.5 years (interquartile range [IQR], 3-5 years). Verdicts were ruled in favor of the defense in 9 (40.9%) cases and for the plaintiff in 6 (27.3%) cases. A settlement was made in 7 (31.8%) cases. The median payout for plaintiff-won cases was $5,100,000 (IQR $1,530,000-$17,500,000), and the median settlement was $2,500,000 (IQR $262,500-$4,410,000).?? Conclusion: Procedural error, improper informed consent, improper trainee supervision, and resident inexperience were the most common allegations proposed by patients in cases involving plastic surgery trainees. These factors can lead to an enduring financial and psychological burden early on in a physician’s career, as well as poor health outcomes. Highlighting these issues during medical education may decrease physician malpractice risk, lower the incidence of burnout, and ultimately improve patient satisfaction and outcomes.

The Breakdown of the Distinction Between the Public, Secular Private, and Religious Spheres in Education Law and Policy

Background: Over the past decade, courts increasingly have considered cases that involve clashes between public, secular private, and religious institutions in education. Such clashes appear to have intensified as recently as the 2019–2020 Supreme Court term, and the confirmation of Associate Justice Amy Coney Barrett to the Court in 2020 suggests that issues centered on these institutions will continue to receive significant judicial attention. While these recent cases have focused on a range of education law and policy issues, some have focused on arguably the most fundamental legal issues applicable to such schools—the instances in which the legal distinctions between public, secular private, and religious schools are strong or weak. Purpose: This study examines three recent, major federal cases as both historical and legal cases to highlight the restructuring of the distinctions among public, secular private, and religions schools in the institutional setting of the courts. I examine how the courts have historically structured these distinctions; how these three recent cases have restructured these distinctions; and the education law and policy implications moving forward. Research Design: This article is a legal analysis and historical case study. Findings: Three recent and high-profile education cases reflect a spectrum of how the highest courts have restructured distinctions between public, secular private, and religious schools in a short period. In some instances, courts have blurred the legal distinctions between these types of schools by allowing religious schools to receive governmental support even in situations in which states have directly attempted to exclude institutions like them from receiving such support. In other instances, courts have strengthened these distinctions by differentiating how public, secular private, and religious schools are treated with respect to their abilities to discriminate. Conclusion: Taken together, the three cases underscore the intensifying attention of the courts to restructuring the distinctions between the public, secular private, and religious spheres in education. These distinctions reflect judicial engagement with major educational and political goals, such as pluralism, communality, and discrimination, and are grounded in a long history of courts’ involvement in this field. Especially in a field characterized by highly politicized debates, attention to the distinction between the public, secular private, and religious spheres in education is critical for understanding how and why fundamental educational policy decisions have been and continue to be made.

The Evolution of Access to Education Through Landmark Legislation, Court Cases, and Policy Initiatives Setting Precedent for The Gary B. Court Decision

Access to education for all students has been long sought. Once defined as physical access to a school building, the concept of access has evolved since Brown v. Board of Education. The purpose of this policy review, conducted through archival research, is to examine the evolution of access to K–Grade 12 education for all students, with an emphasis on students with disabilities who are general education students first, to understand the implications of the 2020 U.S. 6th Circuit Court of Appeals Gary B. vs. Whitmer decision. For the first time, a federal court ruled that the constitution affords all students “a fundamental right to a basic minimum education.” Specifically, the evolving concept of access to education for all students, including students with disabilities, across (a) the school building, (b) curricular opportunities, (c) education outcomes, and (d) a college- and career-ready curriculum is outlined using landmark K–Grade 12 federal education legislation, court cases, and policy initiatives. Taken together, a basic minimum education includes access to challenging academic learning objectives, an emphasis on literacy, provision of educational materials of sufficient quantity and quality, and an adequate teacher workforce. Meeting these expectations assures genuine access to a public education for all students.

Who, What, and How: Identifying Judicial Constructions of Journalism

ABSTRACT The networked era has made it increasingly difficult to define journalism and to separate it from other types of information. This is no small thing. The definition of journalism influences its practice and its role in democratic society. This article identifies themes from judicial definitions of journalism from recent U.S. state and federal cases. Jurists’ rationales for why a person is or is not a journalist have come as they face a variety of cases in which bloggers, message-board posters, website publishers, and others have claimed protections that have historically been primarily associated with traditional journalists. Ultimately, judges have constructed a discourse about journalism that combined concerns regarding how closely the process and practices the publishers used to gather and communicate the information aligned with traditional journalistic work, the public-service value of the information, and the journalistic credentials of the publisher. Though concern for how the work was created and who communicated it was crucial, jurists consistently conveyed the public-service role was most instrumental in their evaluations, often rationalizing broad expansions of what legally constitutes journalism.

PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases.

Posttraumatic stress disorder (PTSD) is commonly used as a mitigating sentencing factor, although how successfully it is used varies. In cases involving the death penalty, use of a PTSD diagnosis as a sentencing mitigating factor has been considered in the postconviction appeals process. This article analyzes a decade of American federal appellate case law regarding postconviction claims of ineffective assistance of counsel by capital defendants in regard to investigating and litigating trauma and PTSD. We found a high tolerance by the courts for deficient investigating, ruling against the petitioner in 20 of 23 (87%) of identified cases. The article discusses how these situations might be avoided and explores the critical role of forensic psychiatrists and mitigation specialists in investigating and presenting trauma to the court.

Time for a Change in U.S. Antitrust for Technology?

Antitrust law makes it illegal For dominant firms to use their Success to impede the Competitive markets, but who Defines "impede" and "competitive?" Today’s column steps back from the fray and characterizes the strengths and weaknesses of the present system. The discussion aims at somebody who wants to understand the status quo, and why the present system works sometimes, and why proposals might want to change it. It is possible to illustrate many basic features of the U.S. approach to antitrust by comparing a settled lawsuit against a pending case. The settled case is the historical case against Microsoft. More than two decades ago, Microsoft fought a high-profile federal case over the governance of its PC operating system. It can be compared with the pending case against Alphabet, who owns and operates Google, the dominant search engine. A federal suit seeks to end exclusive deals that Google makes with others.

Combating Sex Trafficking: The Role of the Hotel—Moral and Ethical Questions

Legitimate companies are key facilitators of human trafficking. These corporate facilitators include not only websites providing advertisements for commercial sex services but also hotels and motels. Analysis of all active federal criminal sex trafficking cases in 2018 and 2019 reveals that in approximately 80% of these cases, victims were exploited at either hotels or motels. This paper studies the prevalence of the hospitality industry in the crime of sex trafficking and the failure of this industry to address this problem until recent civil suits were filed by victims against individual hotels and chains. Drawing on the civil cases filed in federal courts by victims of human trafficking between 2015 and 2021 along the East Coast of the United States, this paper assesses the characteristics of these hotels and the conditions in the hotels that facilitated sex trafficking. The paper then explores the moral and ethical problems posed by the facilitating role of hotel owners/operators in sex trafficking either through collusion or failure to act on and/or report evidence of individual abuse. Suggestions on how to address the problem are provided.

Federalism and female circumcision in the US: a reply to ‘The prosecution of Dawoodi Bohra women’ by Richard Shweder

In his article on ‘The prosecution of Dawoodi Bohra women’, Richard Shweder (2022) discusses a federal criminal case in the United States that resulted from a practice that the sect calls female circumcision. Various parents and medical practitioners were indicted under a federal statute that made the practice criminal. Eventually, though, a federal district court held that Congress lacked authority – an ‘enumerated power’ under the United States Constitution – to enact such a criminal law. At first glance, the decision looked like a big victory for federalism, the division of authority between the federal government and state governments. Unfortunately, the Supreme Court’s jurisprudence in this area has left a rather gaping loophole: Congress can enact a ‘jurisdictional element’ that tries to connect the regulated activity to interstate commerce. As a consequence, unconstitutional laws can be made constitutional with seemingly cosmetic changes. That is, in fact, what happened to the law that was used to indict the Dawoodi Bohra women. This response explores whether federalism arguments can be repackaged outside of the ‘enumerated powers’ doctrine. It suggests that federalism may play a role in determining whether the government has a “compelling interest” in regulating a practice under the Religious Freedom Restoration Act. Because of federalist traditions in the United States, certain interests may be compelling for state governments, but not the federal government. If that were the case, a challenge to a federal law regulating or prohibiting ‘female circumcision’ might succeed where a similar challenge to a state law would fail.