Federal Court Decisions Research Articles

Never Letting a Good Crisis Go to Waste: Canadian Interdiction of Asylum Seekers

This article examines two moments of crisis at Canada’s border with the United States: the aftermath of September 11th, 2001 and the COVID-19 pandemic. The Canadian government leveraged both crises to offshore responsibilities for refugees onto the US. In the first case, Canada took advantage of US preoccupations with border security shortly after 9/11 to persuade the US to sign the Canada-US Safe Third Country Agreement (“STCA) – an agreement that allows Canada to direct back asylum seekers who present themselves at ports-of-entry on the Canada-US border. In the second case, Canada used heightened anxieties about international travel during the COVID-19 pandemic to persuade the US to block irregular border crossings that asylum seekers were increasingly using to circumvent the STCA. After reviewing Canada’s successful use of these moments of crisis to persuade the US to take on additional responsibilities for refugees for whom Canada would have otherwise been responsible, the article discusses a recent Canadian Federal Court decision that may make all this political maneuvering moot. This decision found that Canada cannot send asylum seekers back to the US without violating constitutional rights to life, liberty, and security of the person. Given past practice, however, we can expect the Canadian government to continue to pursue avenues to persuade the US to take on additional responsibility for refugees – and moments of crisis will be important drivers for those efforts.

Up by Their Own Bootstraps: State Legislative Attempts to Bypass the Governor During Redistricting

In the United States, the practice of line-drawing for partisan political advantage took on the name of “gerrymandering” in 1812. Since then, gerrymandering has been constrained by federal requirements that Congressional districts have equal populations, and the Voting Rights Act of 1965, which addressed racial districting. The increasing sophistication of technology has allowed redistricters in many states to comply with these federal requirements, as well as traditional state requirements that districts be compact, contiguous and avoid crossing political boundaries, while still creating extreme partisan gerrymanders. It is possible for one-fourth to one-third of the representation of a legislative chamber or delegation to be determined by who holds the redistricting pen, irrespective of the will of the voters. Currently, in twelve states, the legislature is controlled by one of the two major political parties, while the governor is a member of the other party. This split-party control includes Michigan, New Hampshire, North Carolina, Pennsylvania and Wisconsin. In this article, we review Federal and state court decisions regarding past attempts by legislators of one party to circumvent their opponents by excluding them from the redistricting process. These efforts have largely failed, however, usually due to judicial intervention. Even when courts have taken an expanded view of a state legislature’s redistricting authority, no court has ever allowed a legislature to bypass the governor when required by that state’s constitution.

Magnet Ingestions in Children Presenting to Emergency Departments in the United States 2009-2019: A Problem in Flux.

Small rare-earth magnet (SREM) ingestions are a dangerous, potentially fatal health hazard in children. The U.S. Consumer Safety Commission removed these products from the market in 2012 until a federal court decision vacated this action in 2016. The present study aims to investigate whether the reintroduction of SREMs is associated with an increase in the national frequency of magnet ingestions in children. Data from the National Electronic Injury Surveillance System (NEISS) were used to evaluate suspected magnet ingestion (SMI) trends within patients (0-17 years) from 2009 to 2019. SMI cases were stratified (total, small/round, and multiple magnet ingestions) and trend analyses were performed for 2 periods: 2013-2016 (off-market) and 2017-2019 (on-market). National SMI estimates calculated using the NEISS-supplied weights and variance variables. An estimated 23,756 children (59% males, 42% < 5 years old) presented with a SMI from 2009 to 2019 with an average annual case increase of 6.1% (P = 0.01). There was a significant increase in both small/round SMI encounters and multiple magnet ingestion encounters from 2009 to 2019 (P < 0.001 and P < 0.01, respectively). From 2017 to 2019, there was a greater proportion of small/round type SMIs to total SMIs estimated n = 541 (confidence interval [CI], 261-822) and a greater proportion of multiple magnet ingestions to total SMIs estimated n = 797 (CI, 442-1152) (both, P < 0.01). After 2017, there was a 5-fold increase in the escalation of care for multiple magnet ingestions (estimated n = 1094; CI 505-1686). The significant increase in magnet ingestions by children from 2017 to 2019 indicates that regulatory actions are urgently needed to protect children and reverse these trends.

Under the Law: Gary B., Espinoza, and the fight for school funding

A pair of recent federal court decisions could have profound consequences for school funding across the country. In the first, Gary B. v. Whitmer, the Sixth U.S. Circuit Court of Appeals ruled in favor of seven Detroit, Michigan, public school students who argued that their schools were so woefully underfunded as to deny them the opportunity to become fully literate, which is essential to the exercise of fundamental rights under the U.S. Constitution. In the second, Espinoza v. Montana Department of Revenue, the U.S. Supreme Court ruled that Montana could not block parents from using the state’s education tax-credit program to pay for tuition at private religious schools.

Moving to a More "Certain" Test for Tax Residence in Australia: Lessons for Canada?

Canada and Australia have superficially similar tests for determining the tax residence of individuals. Both have a common-law residence (or resides) test, "continuing attachment" rules (a statutory test in Australia), a 183-day type of test, and provisions focused on government officials. A key difference between the countries in this regard, despite broadly similar residence tests, is that litigation in Canada is rare whereas Australia, over the last decade, has seen at least 43 administrative tribunal, Federal Court, and High Court decisions with respect to tax residence. In response to the high levels of litigation resulting from concentrated Australian Taxation Office compliance programs, the Board of Taxation commenced a self-initiated review of the income tax residence rules for individuals in May 2016. The report subsequently submitted to government noted that the current rules were no longer appropriate and needed to be updated and simplified. Although the Australian government has not endorsed the board's recommendations, the board was directed to undertake further consultation in order to ensure that the proposed residence rules are appropriately designed and targeted, with a particular focus on integrity (that is, anti-avoidance) issues. A final report, sent to the government in April/May 2019, proposed a number of bright-line tests. These proposed tests are based in part on the approach adopted in the NZ and 2013 UK residence rules. In this paper, the author considers the similarities and shortcomings of the Canadian and Australian rules on individual tax residence according to the criteria of equity, simplicity, and efficiency (integrity), and then reviews the Board of Taxation's recommendations with an eye to whether the proposed Australian changes could provide guidance for any future Canadian reform, should the political circumstances so dictate in the future.

What’s in a name? Gauging the effect of labels on third party vote shares

ABSTRACT In this paper we examine an understudied question: Does the inclusion of a party label boost the vote shares of third party candidates? For years, third parties in Tennessee have contended that the high barrier to appear on the ballot with a label is a decided disadvantage for their candidates. Our empirical analysis, however, tells a different story. Various federal court decisions have allowed third party candidates in Tennessee to appear on the ballot with their respective party label in the 2000, 2012, and 2014 election cycles. This fact creates a ready-made natural experiment whereby the electoral fortunes of third party candidates with a label can be compared to those running without a label. Using data from 1992 through 2016 we test whether the inclusion of a label for third party candidates enhances their vote share. The results of our analysis make it clear that in a dominant two-party system it makes no difference, in terms of electoral viability, whether or not a third party candidate appears on the ballot with a party label.

Redrafting the Selective Service Act: Women and the Military Draft

Since its enactment in 1948, the Military Selective Service Act (the MSSA) has required men, but not women, to register for a potential military draft. The MSSA previously withstood constitutional review when, in 1981, the Supreme Court upheld the statute's gender distinction based on the rationale that the purpose of the MSSA was to raise combat troops in the event of a military crisis. Because women were not allowed to participate in combat, the statute did not need to extend the draft registration requirement to women. In 2013, however, the Department of Defense eliminated all combat restrictions on women. With that policy change, the rationale for the Supreme Court's earlier decision collapsed. Since the change allowing women to participate in combat, the MSSA has come under renewed judicial scrutiny, with a 2019 federal district court decision holding that the statute violates the Fifth Amendment's Due Process Clause. In addition, a blue-ribbon commission established by Congress recommended in 2020 that lawmakers amend the MSSA to extend the registration requirement to women. This Article provides background relating to the current controversy over whether to amend the MSSA to require women to register for the draft. It argues that the existing gender distinction in the statute fails to advance the MSSA's purposes. Moreover, the gender distinction relies on archaic generalizations about the role of women, is a detriment to America's national security, and undermines gender equity. The Article contends that the MSSA violates the Fifth Amendment and should be amended by Congress.

'Sorry, It’s My Bad, but You’re Still Fired--&amp;amp; Have No Case': The Honest Belief Defense in Employment Law

'Sorry, It’s My Bad, but You’re Still Fired--&amp;amp; Have No Case': The Honest Belief Defense in Employment Law

Never Letting a Good Crisis Go to Waste: Canadian Interdiction of Asylum Seekers

This article examines two moments of crisis at Canada’s border with the United States: the aftermath of September 11th, 2001 (“9/11”) and the COVID-19 pandemic. The Canadian government leveraged both crises to offshore responsibilities for asylum seekers onto the United States. In the first case, Canada took advantage of U.S. preoccupations with border security shortly after 9/11 to persuade the United States to sign the Canada-U.S. Safe Third Country Agreement (“STCA”)—an agreement that allows Canada to direct back asylum seekers who present themselves at land ports of entry on the Canada-U.S. border. In the second case, Canada used heightened anxieties about international travel during the COVID-19 pandemic to persuade the United States to block irregular border crossings that asylum seekers were increasingly using to circumvent the STCA. After reviewing Canada’s successful use of thesemoments of crisis to persuade the United States to take on additional responsibilities for asylum seekers for whom Canada would have otherwise been responsible, the article discusses a recent Canadian Federal Court decision that may make all this political maneuvering moot. This decision found that Canada cannot send asylum seekers back to the United States without violating constitutional rights to life, liberty, and security of the person. Given past practice, however, we can expect the Canadian government to continue to pursue avenues to persuade the United States to take on additional responsibility for asylum seekers—and moments of crisis will be important drivers for those efforts.

Free Exercise Partisanship

This Article presents new data that shows that, in contrast to earlier periods, judicial decision-making in free exercise cases now tracks political affiliation to a significant degree. The trend toward increased free exercise partisanship is starkly manifested by free exercise cases related to the pandemic: a survey of every federal court decision pertaining to challenges to prohibitions of religious gatherings during the pandemic reveals that 0% of Democrat-appointed judges have sided with religious plaintiffs, the majority (66%) of Republican-appointed judges have sided with religious plaintiffs, and 82% of Trump-appointed judges have sided with religious plaintiffs. But while religious challenges to COVID-19 lockdown orders have thrown free exercise partisanship into sharp relief, the trend of increased partisanship in free exercise jurisprudence actually pre-dates the onset of the pandemic.This Article makes several contributions. One is empirical: it offers an original dataset that tracks every free exercise case from the last five years (picking up where previous surveys of free exercise cases left off). One is historical: it tells the story of how free exercise became politically controversial. Another is doctrinal: it reveals the deep ambiguity at the heart of free exercise doctrine, which this Article argues has enabled the rise in free exercise partisanship. Finally, one is jurisprudential: it shows the relationship between doctrinal clarity and partisanship, which has implications for constitutional law writ large.

Convenience Theory of Cryptocurrency Crime: A Content Analysis of U.S. Federal Court Decisions

ABSTRACT This article examines cryptocurrency cases decided in the U.S. District and Circuit Courts to determine the applicability of Gottschalk’s convenience theory of white-collar crime to cryptocurrency crime litigation and to empirically analyze whether the conditions under which cryptocurrency offenses occurred show support for the convenience theory. Analysis of U.S. federal district and circuit court case law involving cryptocurrency crimes and fraud indicates support for the convenience theory of white-collar crime. Defendants in various schemes were motivated by financial gain, either for the company or for personal use. Their roles and positions in the businesses allowed them access to resources that helped them perpetrate fraud through the following mechanisms: (1) operating front companies; (2) relationship building by defendants; (3) over representing profits that investors would obtain from purchases of virtual currencies, representing that cryptocurrencies were safe and reliable investments when they were risky, and overestimating abilities and capacities to provide services promised to investors in securities fraud; (4) breaching fiduciary duties to their clients and corporate stockholders by misappropriating profits for their own personal gain; and (5) engaging in dark web transactions that guaranteed anonymity. Defendants also employed various neutralization techniques to justify their crimes.

Review of Decisions of the Competition Authority in Brazil: Reconciliation of the Judicial Trend with Due Process of Law

The present essay approaches an issue on transparency, due process and procedural fairness in Brazil’s competition law. Rather than extensively describing the Brazilian system, this paper intends to propose a solution to the problem of the Supreme Federal Court (STF) decision to deny the review on merits in the Judiciary of decisions issued by the Administrative Council for Economic Defense (CADE). Such a proposition aims to reconcile the trend set by the Brazilian Judiciary with the right of undertakings to a due process of law, in particular, the right to the double degree of jurisdiction. To do so, it will consider the peculiarities of the Brazilian Competition System, in special the unsuccessfully attempted previous models, the benchmark provided by the two main models (European and American) and peer agencies in Brazil, to finally propose and justify the implementation of a Second Instance Administrative Appellate Tribunal within CADE.

History of the Four Volumes of Decisions of the United States District Court for the Territory of Hawaii 1903-1917

The so-called Estee's Reports, named for Judge Morris March Estee was an early case reporter in the Hawaiian Territory. Only four volumes of decisions of the United States District Court (USDC) for the Territory of Hawaiʻi were ever printed. They span the years 1903-1917. The decisions in these volumes do not appear in the Federal Reporter covering the same time frame. The Federal Supplement, a West Publishing created reporter of decisions of the federal district courts began in 1933. Prior to 1933, federal district court decisions appeared in the Federal Reporter.

The Shrouded Borderland Between Preemption and Discrimination: A Framework for the Analysis of City Ordinances That Require Proof of Citizenship or Legal Residency as a Condition to Rent a Dwelling Place

In the absence of a comprehensive reform of the federal immigration system, numerous cities, counties, and local governments have passed various local laws and ordinances aimed at addressing the externalities of a growing influx of undocumented immigrants. Recently, there has been a proliferation of local ordinances that establish licensing schemes intended to prohibit a landlord from leasing his property to individuals who lack proof of citizenship or legal immigration status. Three federal circuit courts have addressed potential preemption issues that arise from such ordinances. Due to the lack of clarity in the U.S. Supreme Court’s preemption jurisprudence within the context of immigration law, the three circuits have split over the validity of these local efforts to deny undocumented immigrants the right to basic housing. While one of the federal circuit courts examined in this Note has found such ordinances to not be preempted by federal immigration law, the other two courts to consider the issue have reached the opposite conclusion. In so doing, each federal circuit court decision has relied on the ambiguities of the doctrine of preemption to advance or hinder local laws that discriminate against undocumented foreigners. In light of this background, this Note analyzes the discriminatory implications of such local immigration laws. More importantly, this Note proposes an analytical framework that will offer a unified, non-discriminatory federal answer concerning the authority of state and local governments to adopt laws that encumber undocumented immigrants’ rights to housing.

Beyond de jure and de facto boundaries: tracing the imperial geographies of US law

Since 1945, US judges have extended numerous “domestic” US laws (including securities and antitrust laws) to govern economic transactions taking place “abroad”. However, they have generally failed to extend US labor and employment laws to govern employer–employee relationships outside “US territory”. Through a close reading of federal court decisions and drawing on recent work in the field of critical legal studies, this article makes an argument for centering the study of jurisdiction in International Relations scholarship and for approaching states as instantiated in their jurisdictional assertions. I suggest that such an approach enables us to capture the geographies—including the imperial geographies—of US law in the “normal,” everyday course of affairs. In particular, such an approach allows us to see that, since the mid-20th century, the legal authority and legal relations of the US government have come to be organized around the notion of the national economy (rather than simply around, for example, notions of territory or citizenship). What this means is that it is increasingly a posited relationship to this national economy that determines whether people and corporations, wherever in the world they are located, are subjected to or protected by US law.

Physical Exams: Legal Liability (Versus Professional Norms).

This article summarizes the facts and rulings of a relatively recent and representative federal appellate court decision concerning a parent's civil rights lawsuit in response to a school nurse's visual examination of a child's "private parts." The discussion of the court's rulings extends to a sampling of related case law and, as in a previous NASN School Nurse Zirkel article, the difference between legal and professional boundaries.

Major court and tribunal decisions in Australia in 2018

The year 2018 saw significant tribunal and court decisions concerning the definition of ‘casual’ for the purposes of the National Employment Standards, the obligations of labour hire employers, and the employment status of food delivery drivers in the gig economy. This review also covers a number of significant changes to awards made by the Fair Work Commission as part of its 4-yearly award review; a Full Federal Court decision about the extent to which a small group of employees genuinely agreed to approve an enterprise agreement. An unusual tribunal decision about an employee who was assumed to have a disability is noted. Finally, the review considers several significant judicial decisions on accessorial liability and penalites under the Fair Work Act.

Corpus-based dictionaries for sentiment analysis of specialized vocabularies

AbstractContemporary dictionary-based approaches to sentiment analysis exhibit serious validity problems when applied to specialized vocabularies, but human-coded dictionaries for such applications are often labor-intensive and inefficient to develop. We demonstrate the validity of “minimally-supervised” approaches for the creation of a sentiment dictionary from a corpus of text drawn from a specialized vocabulary. We demonstrate the validity of this approach in estimating sentiment from texts in a large-scale benchmarking dataset recently introduced in computational linguistics, and demonstrate the improvements in accuracy of our approach over well-known standard (nonspecialized) sentiment dictionaries. Finally, we show the usefulness of our approach in an application to the specialized language used in US federal appellate court decisions.

Bundesgerichtliche Urteile zum Arztrecht (2000–2017) – Überblick, ausgewählte Kasuistik und Würdigung

Federal Supreme Court Decisions in Medical Law (2000-2017) - Overview and Selected Case Reports Abstract. Within the framework of an empirical and casuistic analysis of Federal Court decisions in medical law between 2000 and 2017, the goal was to describe tendencies and patterns of Federal Court decisions in medical law. Among other things, our results show that specialists in internal medicine, psychiatry, gynecology, obstetrics and surgery are more frequently involved in federal court proceedings. By contrast, pathologists, forensic specialists or (diagnostic) radiologists are rarely represented. This may be explained by the fact that the first group consists of more physicians than the other specialties. Furthermore, in the first group, either stronger action may be taken against the will of the patient (e.g. in the context of compulsory medication in psychiatry) or a possible breach of the duty of care is more obvious for the patient or his relatives or at least recognizable even without medical knowledge.

Marriage Equality: On the Books and on the Ground? An Experimental Audit Study of Beliefs and Behavior towards Same‐Sex and Interracial Couples in the Wedding Industry

AbstractIn the United States, same‐sex and interracial couples benefit from federal court decisions recognizing and protecting their marital unions. Despite these legal protections, prejudiced beliefs and subtly‐biased behavior toward these groups may still be socially normative. The present studies surveyed Americans’ beliefs about the acceptability of prejudice toward same‐sex, interracial, and white heterosexual couples and then examined actual behavior among wedding venue professionals towards them. In Study 1, Americans felt it more socially normative to express prejudice toward same‐sex couples than toward interracial couples and heterosexual couples; they also forecasted that same‐sex couples would experience more discrimination by wedding industry professionals than interracial couples. Study 2 used experimental audit methods to examine whether the actual behavior of wedding venue professionals aligned with Americans’ social norm beliefs. Results revealed that same‐sex couples and, to a lesser extent, interracial couples experienced more discrimination by wedding industry professionals than did white heterosexual couples.