Federal Circuit Court Research Articles

Lessons from Australian family law appeals jurisdiction

ABSTRACT Much has been researched, written about, and subjected to public enquiry with respect to the content of Australian family law arrangements. This study adds to current understanding by the examination of the records of all successful appeals of parenting orders under the recently adopted regime of the Federal Circuit and Family Court of Australia Division 1 Appellate Jurisdiction. Drawing on transcripts from this Court to the date of writing, 35% of applications to appeal parenting orders were successful in being granted a rehearing or variation by the Appellate Jurisdiction. It is these cases which form the basis for this analysis. Employing an inductive thematic analysis, it has been possible to identify the pattern of circumstances most likely to lead to the compromise of the delivery of the declared principles of clear, predictable, and accessible law. Learning from the record of successful appeals, it becomes evident that the Appeals Court plays a relatively unappreciated critical role in identifying the context and nature of risks in the delivery of these core principles and what should be a central focus for attention.

Statistical Properties of the Department of Commerce’s Antidumping Duty Calculation Method with Implications for Current Trade Cases

The Department of Commerce (DOC) uses differential pricing analysis in order to detect whether a foreign exporter dumps goods in the U.S. market at prices lower than the exporter sells the goods for in its domestic market. A dumping duty is then levied on the exporter, the amount of which depends on the dumping margin. Several recent cases at the Federal Circuit Court of Appeals have challenged the DOC’s methodology on statistical grounds. In this article, the DOC’s procedure for calculating the dumping margin is described in detail, including the rules for the controversial zeroing policy. Several statistical issues with the DOC’s approach are identified and some potential improvements are proposed.

On Behalf of All Others Similarly Situated: Class Representation & Equitable Compensation

Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation. The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh Circuit held that incentive awards are per se unlawful under late nineteenth-century Supreme Court precedent. This holding has ignited a new controversy in the federal courts with far-reaching implications for the future of class actions. Much of the existing legal scholarship on incentive awards analyzes policy rationales, quantitative trends, and legal standards involving the questions of “When?” and “How much?” to compensate class representatives. Only recently have scholars turned their attention to the more foundational question of whether federal courts have a sound basis to allocate incentive awards to class representatives under any circumstances. This Note weighs in on that debate by revisiting the Eleventh Circuit’s recent decision to categorically ban incentive awards. More importantly, this Note looks to the future and confronts the reality that other federal circuit courts or the Supreme Court could eventually adopt the Eleventh Circuit’s position on incentive awards. Facing that unsettling prospect, this Note presents three proposals—one for policymakers and two for plaintiff-side class action practitioners—that could save the equitable tradition of compensating class representatives and reinforce the viability of the class action device itself.

Judges Judging Judges: Partisanship and Politics in the Federal Circuit Courts of Appeals

Judges Judging Judges: Partisanship and Politics in the Federal Circuit Courts of Appeals

Constitutional accountability for police shootings

AbstractConstitutional accountability for police shootings is imposed in part through civil rights lawsuits alleging Fourth Amendment violations, but little is known about how judges evaluate these claims. I introduce original data on all federal circuit court decisions resolving Fourth Amendment excessive force claims in police shooting cases over three decades. The quasi‐random assignment of a majority‐Republican panel substantially increases the probability of circuit courts finding a police shooting to be constitutional. Capturing law's influence by mapping case facts to the three‐part analytical framework delineated by the Supreme Court in Graham v. Connor, I find that active resistance and threat immediacy are associated with increases in the probability of finding police shootings to be constitutional, but crime severity is not systematically associated with outcomes. In addition, there is evidence that law conditions the effect of politics, with increases in latent Fourth Amendment reasonableness narrowing the partisan outcome gap in constitutional assessments. The quasi‐random assignment of a Black judge does not impact outcomes. The results have important implications for police oversight and longstanding debates in judicial politics over the prevalence of panel effects and the extent to which law influences decision making.

The Impact of Oral Argument Attendance

Abstract How does oral argument attendance impact public perceptions of the judiciary? Judicial independence is partly contingent on public support, but the conditions that generate institutional good will are not well understood. We examine how judicial outreach and court exposure inform public attitudes. Leveraging a field-experiment randomizing in-person attendance at oral arguments conducted by a federal circuit court of appeals on a university campus, we find that exposure increases perceptions of institutional legitimacy and the extent to which judicial decisions are motivated by law versus politics. The results have important implications for judicial politics and policy debates concerning reform initiatives involving circuit riding, courtroom cameras, and public outreach.

미국 연방불법행위청구법(FTCA)상 재량기능 예외와 그 시사점

On July 14, 2022, the Supreme Court of Korea made a ruling on the “state compensation claim case due to overcrowded incarceration.”(Korean Supreme Court Decision No. 2017Da266771) One ex-prisoner, recognized the overcrowded confinement period as 186 days, was awarded 1.5 million Korean Won in state compensation and the other ex-prisoner, recognized the overcrowded confinement period as 323 days, was awarded 3 million Korean Won in state compensation. The Supreme Court of Korea acknowledged the state’s damages liability based on the violation of ‘dignity and value as a human being’ Sect. 10 of Korean Constitution, not the violation of specific laws in this ruling. Unlike the National Compensation Act in Korea, the state compensation liability based on the tort of a public officer’s in the United States, which separately stipulates the state compensation liability due to the public officer’s intentional torts and the state compensation liability caused by the public officer’s negligence. The Federal Tort Claims Act has a discretionary function exclusion clause, and the U.S. Supreme Court recognizes this exclusion in its rulings. The U.S. Federal Circuit courts have presented different rulings on the scope of exclusion from discretionary function in relation to the illegal acts of federal officers. In Bivens claims, the alleged violation of the federal constitution here is a violation of very specific constitutional provisions, such as the 1st and 8th Amendments. It did not target violations of the ideology of guaranteeing basic human rights such as ‘dignity and value as a human being’. Regarding the Bivens claim, the U.S. Supreme Court would not hardly find cases in which the state recognized torts liability for the human rights violations of prisoners. Even considering these points, the state compensation liability should not be based on a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’, but on a violation of the actual laws or specific regulations. There are concerns that the recognition of state compensation liability due to a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’ would have provided a starting point for similar state compensation lawsuits in the future in Korea. If it becomes a catalyst to promote supplementary works such as new legislations and construction of new facilities to improve prisoner’s basic human rights, it might be also considered to be meaningful Korean Supreme Court’s decision in Korea.

Congressional Constraint? The Review of In Absentia Immigration Removal Orders in Federal Circuit Courts

Within the politically charged immigration system in the United States, Congress mandates the entry of in absentia removal orders against immigrants who fail to appear for immigration court hearings. Statutory guidance similarly constrains the ability of appellate courts to overturn those in absentia orders. In this article, we examine how federal circuit court judges make decisions in the review of in absentia orders when faced with discretion-revoking congressional statutory language pitted against a highly politicized area of law where policy preferences sit at the forefront of judges’ minds. Using an original dataset of U.S. Courts of Appeals cases decided from 2001 to 2020, we find that pro-immigrant decisions are rare, as intended by the governing statute. We also find, however, that judicial policy preferences predict the degree to which federal judges support the petitioning immigrant through statutory factors related to the adequacy of government notice and the presence of exceptional circumstances to justify nonappearance.

Judge ideology and debt contracting

We examine the effect of ex ante litigation risk on the price and non-price terms of loan contracts. Since expected litigation is endogenous, we focus on federal circuit court judge ideology to generate plausibly exogenous variation in the outcome of a class action lawsuit. We find that loans issued by firms headquartered in circuits with a higher likelihood of drawing a liberal panel of judges in a class action lawsuit have higher loan spreads, shorter maturity, and a larger number of and more restrictive covenants. To strengthen our claim that judge ideology affects loan contracting through its effect on the outcome of a class action lawsuit, we show that the influence of judge ideology on price and nonprice terms of loans is strongly influenced by factors that influence the probability of a class action lawsuit. Overall, our results bolster the case that litigation risk has a causal effect on debt contracting.

What the Heller is Going on With the Second Amendment: Are Licensing Requirements Living up to the Heller Standard?

The full extent and guarantees of the Second Amendment have yet to be understood in light of modern advances in weaponry. Further, there is little Supreme Court precedent to aid in defining the scope of the Second Amendment. With challenges to restrictions on concealed carrying of firearms in public, the Second Amendment requires much clarification. Federal circuit courts are divided on how to apply the Second Amendment to firearm licensing schemes and differ on the interpretation of the Heller decision. This Note provides guidance on understanding the core protection of the Second Amendment and the presumptions left by the Supreme Court’s Heller decision. Additionally, this Note will discuss the traditional understanding of the Second Amendment and whether the scrutiny analysis applies to Second Amendment cases.

Family Arbitration in Australia: A difficult birth

The use of arbitration in family law effectively commenced with the promulgation in April 2016 of Family Law Rules to facilitate arbitration. This article accesses all available data of the Federal Circuit Court (as it then was) regarding the use of arbitration for the three years from April 2016 to 2019. The data discussed paints a picture of the birth of family arbitration in Australia and charts trends in the use and facilitation of arbitration over this important, formative period.

Genotoxicity Assays Published since 2016 Shed New Light on the Oncogenic Potential of Glyphosate-Based Herbicides

Controversy over the oncogenicity of glyphosate-based herbicides (GBHs) persists seven years after a 2015 IARC Monograph classified glyphosate/GBHs as “probably carcinogenic” to humans. Most regulatory authorities have concluded that technical glyphosate poses little or no oncogenic risk via dietary exposure. The US EPA classified glyphosate as “not likely” to pose cancer risk in 1991, a decision reaffirmed in reports issued in 2017 and 2020. A Federal Circuit Court of Appeals in the US vacated EPA’s assessment of glyphosate human-health risks in 2022 and required EPA to revisit old and take into account new data in its forthcoming, possibly final glyphosate/GBH reregistration decision. Divergent assessments of GBH genotoxicity are the primary reason for differing conclusions regarding GBH oncogenic potential. We assessed whether assays published since completion of the EPA and IARC reviews shed new light on glyphosate/GBH genotoxicity. We found 94 such assays, 33 testing technical glyphosate (73% positive) and 61 on GBHs (95% positive). Seven of 7 in vivo human studies report positive results. In light of genotoxicity results published since 2015, the conclusion that GBHs pose no risk of cancer via a genotoxic mechanism is untenable.

The Pervasive Influence of Ideology at the Federal Circuit Courts

The Pervasive Influence of Ideology at the Federal Circuit Courts

The Pervasive Influence of Ideology at the Federal Circuit Courts

The Pervasive Influence of Ideology at the Federal Circuit Courts

Cognitive Aging and Opinion Writing Among Federal Circuit Court Judges

Cognitive Aging and Opinion Writing Among Federal Circuit Court Judges

Mixed messages & bounded rationality: The perverse consequences of realIDfor immigration policy

AbstractPolicies concerning undocumented immigrants are inevitably ambivalent, creating uncertainty and confusion in the implementation process. We identify a clear example of this ambivalence —U.S. law setting standards for determining the credibility of asylum seekers—that resulted in an increase in asylum grants despite policymakers' intention to make it harder for individuals to obtain the status. We argue that this law, The REAL ID Act of 2005, sent mixed messages to immigration judges (IJs), street‐level bureaucrats who implement immigration policy. It increased IJ discretion, but set vague limits. We theorize that IJs, behaving in a bounded rationality framework, use their professional legal training as a short‐cut and look primarily to the courts for guidance. Our evidence supports our argument. After the passage of the REAL ID Act, IJ decision‐making is more closely aligned with the preferences of their political and legal principals, and, in the final score, the federal circuit courts are the winners.

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A Comcast Case Study

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A <i>Comcast</i> Case Study

“Better Too Much Than Not Enough”: The Nomination of Women of Color to the Federal Bench

ABSTRACT It is well established that the federal judiciary has been an overwhelmingly White and male institution since its creation and continues to be so today. Even as presidents of both parties have looked to diversify their judicial nominees, this has tended to result in the appointment of White women and men of color rather than women of color. Using data on the confirmed federal district and circuit court judges from presidents Clinton through Trump, we assess how the backgrounds of women of color nominated to the federal judiciary compare with those of other appointees. The results indicate that, compared to White male judges, women of color judges accrue more types of professional experience before their appointments, are more likely to have had prior experience as a judge, and are generally nominated earlier in their careers.

Charities and the Constitution: Evaluating the Role of Constitutional Principles in Determining the Scope of Tax Law’s Public Policy Limitation for Charities

©2002 David A. BrennenThe judicial assault on constitutionally permissible social justice efforts including affirmative action for minorities and ending discrimination against homosexuals continues. Through the rubric of “neutrality,” “equality” and “free expression,” courts today are using constitutional law principles to arrest efforts by state and federal governments either to (1) remedy present effects of historical discrimination or (2) end current discrimination. Accordingly, various federal circuit courts have interpreted Equal Protection Clause strict scrutiny as prohibiting government from considering race as a factor when making university admissions decisions or granting scholarships. Thus, it is not inconceivable that the Supreme Court might soon rule that a state school’s consideration of race, in order to obtain a more diverse student body, violates Equal Protection Clause strict scrutiny – either because racial diversity is not “compelling” or because considering race is not “necessary.” Additionally, the Supreme Court invalidated, under the guise of free expression, state law attempts to lessen discrimination against homosexuals.

The Banality of Evil (?): The Strange(ly Quiet) Careers of Korematsu and Hirabayashi in the Federal Circuit Courts, 1943‐2016

The Banality of Evil (?): The Strange(ly Quiet) Careers of Korematsu and Hirabayashi in the Federal Circuit Courts, 1943‐2016