Federal Courts Research Articles

TR SANDAH: WITHERING JUDICIAL ACTIVISM

This study discusses the Federal Court judgment in the case of Director of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors and other appeals [2017] 3 CLJ 1. The Federal Court’s decision was said to deviate from an earlier established principle of the common law recognition of existing indigenous peoples’ land rights, the content and extent of which are determined by community customary laws. The common law acknowledgement or recognition of indigenous peoples’ pre-existing rights to their traditional and customary lands held by the Federal Court in Adong bin Kuwau v Kerajaan Negeri Johor [1997] 1 MLJ 418 and Madeli Salleh v. Superintendent of Lands & Surveys & Anor [2005] 3 CLJ 697 complimented the existing safeguards given under the Federal Constitution and statutory laws relevant to Orang Asli in Peninsular Malaysia and the natives of Sabah and Sarawak. Therefore, this study aims to examine whether the Federal Court’s decision in TR Sandah FC reflects judicial conservatism by giving preference to statutory laws passed by the elected officials that resulted in the regression of the recognition of the indigenous peoples’ customary land rights. The method adopted in this study is a qualitative approach via doctrinal legal research. This is a text-based examination of legal texts and other scholarly materials. This shows judges in Malaysia are said to play a more conservative role in the interpretation of legislation. It would be fundamental to highlight the development of the judicial treatment of the indigenous peoples’ land rights in Malaysia and its implications.

THREE ASPECTS OF ACCOUNTABILITY FOR THE CANADIAN INTELLIGENCE PUBLIC SERVICE

On November 17, 2023, a Senior CSIS Executive presented Three Aspects of Accountability for the Canadian Public Service for this year’s West Coast Security Conference. The presentation was followed by a question-and-answer period with questions from the audience and CASIS Vancouver Executives. The key points discussed were the themes of accountability in the Canadian Security Intelligence Service in relation to the federal court, to Canadian citizens, and within the governmental and academic spheres.
 
 Received: 01-07-2024
 Revised: 01-30-2024

The Concept of Reforming the Institute of Administrators of Federal Courts of General Jurisdiction and Federal Arbitration Courts

The article highlights the history of the creation of the institution of administrators in Russia, examines the problems of the unsettled legal status and official position of administrators of federal courts, due to the uncertainty of their dual subordination, as well as the stages that took place in the field of reforming the institution of court administrators, and conducts a comparative analysis of the functional responsibilities of administrators of courts of general jurisdiction and administrators of federal arbitration courts. The main prerequisites for the adoption of the Concept for reforming the institution of federal court administrators are highlighted, the main goal of which was to consolidate the scope of functional responsibilities of the court administrator, which were initially derived from the organizational and support functions of the Judicial Department and from the managerial powers of the chairman of the court, and the measures taken since the adoption of the Concept for its implementation are described, as well as the results achieved at this stage. It is concluded that the results achieved during the implementation of the Concept, as well as other measures to reform the institution of court administrators, are ambiguous. An opinion was expressed on the need to reduce the scope of powers of the head of the court administrator’s office, on the current duplication of the functions of the court administrator and other employees of the court apparatus, as well as on the controversial existence of his compulsory legal education.

Информационные технологии и оптимизация гражданского судопроизводства на судебных участках мировых судей в аспекте неразрывной связи

The article states that systemic decisions on digitalization of judicial activities in judicial districts of justices of the peace have become possible in view of the imposition of functions of the establishment of the unified information space of federal courts and justices of the peace on the Judicial Department under the Supreme Court of the Russian Federation in 2014. The factors that initiate transformations are orders of the President of the Russian Federation and tasks set by authorities of the judicial community (the All-Russian Judiciary Convention and the Council of Judges of the Russian Federation).

“Deeply Rooted”: Abortion Federalism, Divided Citizenship, and Disability Reproductive (In)justice

ABSTRACT Laws structure people’s “lived citizenships.” This article considers the ways in which Dobbs v. Jackson Women’s Health Organization gave states the power to regulate reproduction in ways that have disproportionate consequences for pregnant people with disabilities. Specifically, Dobbs did not eliminate the right to bodily integrity, but rather put conditions on who can claim a right to bodily integrity in federal courts. Moreover, uneven changes to Medicaid financing of abortions have created a “postcode lottery.” People’s ability to receive care is determined by a politics of place – or even individual providers. These policies create structural inequalities.

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.

No Transfer? No Problem!: The Federal Circuit's Excessive Use of the Most Potent Weapon in the Judicial Arsenal for §1404(a) Transfer Appeals

Like all federal plaintiffs, patent owners who feel their patent has been infringed have the right to file suit in any federal court, so long as venue is proper. Patent plaintiffs often select plaintiff-friendly venues, like the Eastern and Western Districts of Texas. Usually, plaintiffs may select these venues because many of the alleged infringers are large companies with a national presence, which makes them susceptible to suit in many federal courts around the country. Defendants in patent cases often file a motion under 28 U.S.C. § 1404(a) to transfer a case to a more defendant-friendly venue, on the basis that the destination venue is more convenient. If the district court denies the motion to transfer, that almost always ends the matter. The exception is that the defendant can petition the proper appellate court—the Federal Circuit in patent cases—for a writ of mandamus: an “extraordinary remedy” that directs the district court to transfer the case. The Supreme Court has mandated that this remedy is reserved for extreme circumstances and may not be used as an appeal. Despite this clear mandate, the Federal Circuit appears to treat such petitions as full-fledged appeals. This Comment seeks to address the ever-growing number of mandamus petitions being granted by the Federal Circuit. Specifically, this Comment focuses on patent cases filed in Texas federal courts. While patent cases in Texas federal courts, like all other patent cases, are appealed to the Federal Circuit, the Federal Circuit remains bound by Fifth Circuit law on motions to transfer under § 1404(a). The Supreme Court and Fifth Circuit have held that a mandamus petition should only be granted upon a clear abuse of discretion by the district court, but the Federal Circuit seems to misapply Fifth Circuit law. The Federal Circuit’s proclivities in determining the propriety of a petition for a writ of mandamus have caused confusion among Texas plaintiffs and uncertainty in the law. This Comment calls attention to the Federal Circuit’s tendency to: (1) misapply Fifth Circuit transfer law; (2) impermissibly add its own nuances to transfer law; and (3) substitute the district court’s judgment for its own, effectively giving defendants a de novo review; or in other words, a second bite at the apple in attempting to transfer a case. Finally, this Comment proposes solutions including: (1) an expansion of Fifth Circuit § 1404(a) jurisprudence; (2) the Supreme Court granting certiorari to provide clarity on the issue; or (3) a change in the Federal Circuit’s choice of law rule.

Trial by Ambush: The Prosecution of Indians in Federal Court

Trial by Ambush: The Prosecution of Indians in Federal Court

Students for Fair Admissions v. Universities for Division, Exclusion, and Inequity: The Petitions, the Arguments, and the Decision

Students for Fair Admissions v. Harvard (SFFA) will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, while the UNC case lingered in district court. The Supreme Court called for the views of the Solicitor General. By doing so, the Court could punt the case to the following term, which allowed the UNC case to catch up, and Justice Breyer’s replacement to be confirmed. Both cases would be argued on October 31, 2022. Part II parses the questions asked by all nine Justices during oral argument. Chief Justice Roberts signaled up front that he would rule against the universities. Justice Thomas repeated his charge that arguments in favor of racial preferences mirror the arguments made by segregationists. Justice Alito worried about discrimination against Asian-American applicants. Justice Sotomayor focused on the detailed findings of the trial courts. Justice Kagan questioned whether SFFA would favor universities with few or no racial minorities on campus. Justice Gorsuch looked to Title VI of the Civil Rights Act of 1964. Justice Kavanaugh suggested preferences could be reserved for the descendants of slaves. Justice Barrett inquired about the expiration date of Grutter. And Justice Jackson recounted how the Reconstruction Congress used racial preferences for the freedmen. Finally, Part III breaks down four aspects of the Court’s decision. SFFA eliminated the “educational benefits” rationale for affirmative action. Chief Justice Roberts continues to take inconsistent positions in similar cases during the same term. Justice Kavanaugh continues to follow the lead of Chief Justice Roberts in leading cases, including SFFA. And I defend Justice Jackson’s likely involvement in the Harvard case, notwithstanding her recusal.

Judicial Review in the Federal Courts: The Emergencies Act

Judicial Review in the Federal Courts: The Emergencies Act

Family Law Frustrations: Addressing Hague Convention Issues in Federal Courts

Family Law Frustrations: Addressing Hague Convention Issues in Federal Courts

Broader Application and Implications: A Federal Court (Non-IRB) Case Law Year in Review for 2023

Broader Application and Implications: A Federal Court (Non-IRB) Case Law Year in Review for 2023

Battling Environmental Racism in Cancer Alley: A Legislative Approach.

This Paper argues that to protect at-risk communities - and all Americans - from the deadly effects of environmental racism, Congress must pass the Environmental Justice for All Act. The Act is intended to "restore, reaffirm, and reconcile environmental justice and civil rights." It does so by restoring an individual's right to sue in federal court for discrimination based on race, ethnicity, or national origin regardless of intent under the Civil Rights Act of 1964, strengthening the National Environmental Policy Act, and providing economic incentives focused on environmental justice.

Resurrecting Malaysian Environmental Law: A Defense of the Federal Court's Reversal of Lim Kit Siang in Perbadanan Trellises

Resurrecting Malaysian Environmental Law: A Defense of the Federal Court's Reversal of Lim Kit Siang in Perbadanan Trellises

In Defence of the Federal Court's Jurisdiction over Judicial Review of Tax Matters

In Defence of the Federal Court's Jurisdiction over Judicial Review of Tax Matters

Incidence, Disclosure, and Risk of Corporate Litigation: Insights from Federal Court Filings

Incidence, Disclosure, and Risk of Corporate Litigation: Insights from Federal Court Filings

The Functions of the Brazil Federal Court of Accounts in the Improvement of Public Administration

This article aims to analyze the control benefits exercised by the Brazil Federal Court of Accounts – TCU to improve Public Administration, considering that an extensive range of studies has been developed on public efficiency, but without considering the aspect of control as an essential instrument of this transformation, and also by the fact that the Federal Executive Power has sometimes exposed the TCU as an impediment to the development of the country From a methodological approach qualitative, exploratory, with the use of literature and document analysis, the barriers to an efficient public administration and the functions performed by the TCU were analyzed. Thus, it was evidenced that public efficiency can be achieved by tackling impediments to an efficient model identified in this article by two groups: the Legality of deviations and purpose and improper operation. From this identification, the type of control exercised by TCU was presented according to its legal powers, the focus of its operations, and the resulting benefits, which were also presented in financial and operational groups. Thus, it was concluded that the benefits generated by TCU’s actions work in fighting impediments to efficient public Administration, consequently contributing to improving the federal public Administration.

Profits Before Patients? Rethinking the Shareholder Primacy Model of Corporate Governance for Health Care

Concerns about the ballooning cost of health care and medicine are at the heart of perpetual debate about the corporate accountability of health care corporations. This essay critiques the shareholder primacy model of corporate governance for health care enterprise using the American pharmaceutical company Merck as a small sample case study that might be indicative of broader corporate governance issues generally, that deserve further research. In 2009 an Australian Federal Court class action was led by Merck product patient users against Merck’s Australian subsidiary, for allegedly failing to withdraw the drug Vioxx from the market. The patient group claimed that Merck insiders knew Vioxx increased the risk of heart attacks, yet persisted to manufacture and market the drug to secure profits for shareholders. At first instance, the trial judge awarded damages in favor of the original plaintiff claimant, finding that the drug had caused the claimant's alleged heart risk injury. However that decision was overturned on appeal, with further leave to appeal to the High Court of Australia being refused on 11 May 2012. Simultaneously, settlements between the company and other groups of claimants involving the same drug, have been and are continuing to be reached in other jurisdictions around the world in 2013.The case more generally evokes a familiar normative question of to whom a duty of care is and should be owed by health care corporate decision makers: shareholders, patients, or both? This paper briefly answers that question by critically analysing the market impact of the shareholder primacy model of corporate governance, on end user health care patients by transforming them from patients into consumers. The paper then constructs a potential solution in the form of an evolved shareholder primacy model of corporate governance which encompasses a value duty of virtue to shareholders that potentially meets the interests of both shareholders and patients.

Still Far From Home – How Personal Jurisdiction Doctrine Undercuts The Montreal Convention’s “Fifth Jurisdiction” For “Wandering Americans”

The rapid growth of global air travel in the mid-20th century gave rise to the problem of the “wandering American”—American residents whose air travel injury claims could not be heard in United States courts under the Warsaw Convention’s Article 28. Prominent cases prompted adoption of a “fifth jurisdiction” in the Montreal Convention’s Article 33, allowing injury suits in the Contracting State where an injured passenger had her “principal and permanent residence” so long as the international carrier served the forum. U.S. officials toasted their success in providing Americans with a domestic forum, but the adoption of the fifth jurisdiction did not finish the job. Even if an American plaintiff meets Article 33’s requirements, personal jurisdiction problems can bar the courthouse door. This article re-examines the problem of the “wandering American” and the fierce debates over the fifth jurisdiction at the 1999 International Conference on Air Law in Montreal through the lens of personal jurisdiction. It argues that the Montreal Convention would likely not have changed the results of prominent “wandering American” cases such as the shoot-down of Korean Air 007 or the hijacking of Air France 139. It comments on how the law is rapidly evolving as federal courts wrestle with whether Federal Rule of Civil Procedure 4(k)(2) can better address the lack of “minimum contacts” carriers have with most U.S. states and the lack of causal connections between forum and claims. Finally, it considers how Congress or American aviation authorities can better align Montreal’s promise of a “fifth jurisdiction” with American jurisdictional law.

A New World of Discovery: The Ramifications of Two Recent Federal Courts' Decisions Granting Judicial Assistance to Arbitral Tribunals Pursuant to 28 U.S.C. s. 1782

A New World of Discovery: The Ramifications of Two Recent Federal Courts' Decisions Granting Judicial Assistance to Arbitral Tribunals Pursuant to 28 U.S.C. s. 1782