Federal District Court Research Articles

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.

International Megan's Law as Compelled Speech

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).” International Megan’s Law (IML), passed in 2016, prohibits the State Department from issuing passports to individuals convicted of a sex offense against a minor unless those passports are branded with this phrase. The federal government's decision to brand its citizens’ passports with this stigmatizing message is novel and jarring, but the sole federal district court to consider a constitutional challenge to the passport identifier dismissed the plaintiffs’ First Amendment claim, deeming the provision government speech. This Note argues that this passport identifier is more appropriately analyzed as a form of compelled speech, triggering strict scrutiny review that the IML’s passport identifier would not survive.

Twenty-One Months of Hell and the Supreme Court to the Rescue in McLaurin v. Oklahoma State Regents

Twenty-One Months of Hell and the Supreme Court to the Rescue in McLaurin v. Oklahoma State Regents DAVID W. LEVY I Under our federal system, which divides power between a central authority in Wash­ ington, D.C., and the authorities in the fifty states, conflicts are bound to arise. No matter how carefully some powers are delegated to the federal government and others assigned to the states, there will inevitably be areas where both the federal and the state governments claim primacy and where each insists on implementing its own policy. When it comes to describing and analyzing such situations, we are too often content merely to explore the legal arguments marshaled by both sides and the judicial decisions aimed at resolving the conflict. Not enough attention is given to the harrowing difficulties faced by those who have to navigate between state and federal dictates and who find themselves improvising measures that they hope will satisfy the opposing requirements imposed upon them. Between October 1948 and June 1950, officials at the University of Oklahoma were faced with just such a difficulty. In January 1948, a sixty-one-year-old African Amer­ ican named George W. McLaurin applied for admission to the University. He was a retired professor at Langston University, Ok­ lahoma’s all-black college, he had a master’s degree from the University of Kansas, and he hoped to earn a doctorate in Education.1 Langston offered no graduate work whatever, but the University of Oklahoma, in all of its fifty-six-year history, had never admitted a black person. McLaurin and five other African Americans had been encouraged to apply by the Supreme Court’s ruling three weeks earlier in Sipuel v. Board ofRegents.2 In that case, the Court declared that be­ cause black Oklahomans had no access to legal training at a state institution while whites had studied law at the University for decades, Oklahoma was obligated, under the “equal protection” clause of the Fourteenth Amendment, to provide Ada Lois Sipuel Fisher the opportunity for a legal education SUPREME COURT TO THE RESCUE IN MCLAURIN V. OKLAHOMA 29 substantially equal to that provided to whites. Rather than admitting her to the University’s law school, however, the state, desperate to preserve segregation, flung together in three weeks a bogus law school for blacks. Fisher and her National Association for the Advancement of Colored People (NAACP) lawyers, led by Thurgood Marshall, returned to the judicial system, arguing that the two schools could not possibly be considered equal. Meanwhile, the six African Ameri­ cans, each hoping to pursue graduate work in a field not available to them at Langston, saw in the Sipuel decision enough similarity to their own circumstances to move them to apply for admission. The NAACP chose McLaurin to make the test case. The segregation of blacks had a long history in Oklahoma education. It was prac­ ticed in the schools of four of the Five Civ­ ilized Tribes and legalized by the Territorial Legislature before statehood. Segregation in schools was enshrined in Oklahoma’s consti­ tution in 19073 and then enforced by the state legislature. In 1941, lawmakers fortified the system by mandating harsh daily fines against any administrator who enrolled a black stu­ dent in a white school (or vice versa), against any teacher who taught in a mixedrace classroom, and against any student who willingly sat in such a classroom.4 Never­ theless, McLaurin and his attorneys pressed their demand for admission through the state judicial system (unsuccessfully) and into the federal courts. Finally, on September 29, 1948, the three-judge federal district court for the western district of Oklahoma, citing Sipuel, ruled that McLaurin was entitled to be admitted to the graduate program he desired as long as Oklahoma offered that program to whites. The judges declared that those sections of the 1941 law that levied fines against administrators, teachers, and students were unconstitutional in this case. But then, they added a troubling sentence: “This does not mean, however, that the segregation laws ofOklahoma are incapable ofenforcement.”5 The judges obviously felt that—except in a case like McLaurin’s, where those laws infringed upon an individual’s constitutional...

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.

Binding arbitration: Bad for students, bad for schools

Students with disabilities have rights under Title II (state and local colleges and universities) and Title III (private schools) of the Americans with Disabilities Act to file administrative complaints with the United States Department of Justice and to file lawsuits in federal district courts. The ADA also recognizes that there are alternative means of dispute resolution, including “settlement negotiations, conciliation, facilitation, mediation, fact finding mini trials, and arbitration” that are “encouraged to resolve disputes” (42 U.S.C. 12212).

Clarifying Viewpoint Discrimination in Free Speech Doctrine

The preliminary decision that must be made in First Amendment free speech cases is what level of review to apply. A critical part of this inquiry is whether the government action involves viewpoint discrimination, content-based subject-matter regulation, or content-neutral regulation. Whether some government action -- either statute, administrative regulation, or other official conduct -- involves viewpoint discrimination is thus a critically important issue in First Amendment free speech doctrine. The Supreme Court has not done as good a job at it could in clarifying when, in general, government action involves viewpoint discrimination or instead involves content-based, subject-matter regulation. Particular areas of concern involve issues of decency and respect for the diverse beliefs and values of the American public, vulgar speech, speech that might disparage others, or speech viewed as offensive by some members of the public, even if not by the government itself. This Article provides some guidance on how all these issues should be resolved. Once those issues are addressed, the Article provides an overview of free speech doctrine in terms of the various standards of scrutiny when viewpoint discrimination either is or is not occurring. The Article address how to make the overall doctrine more predictable in various areas of free speech doctrine: government funding, school context, commercial speech, and speech by government workers on matters of public concern. While the Supreme Court has done an adequate job in making standards clear, the Court has left some holes in the analysis prompting unnecessary confusion at state court, federal district court, and federal court of appeals levels.

Nonprofit Organization Held to Be Individual's Alter Ego for Penalty Purposes

It will be recalled that one James Tarpey was found liable by a federal district court for the tax shelter penalty (IRC § 6700) for engaging in an abusive tax transaction involving an ostensible tax‐exempt charitable organization by the name of Donate For Cause (opinion summarized in the June 2019 issue). The DFC solicited and received contributions of timeshare interests. The court, however, did not then determine the amount of the penalty to be assessed.

Athena Rising? Brief of Professors Jeffrey A. Lefstin and Peter S. Menell as <i>Amici Curiae</i> in Support of Petition for a Writ of Certiorari in <i>Athena Diagnostics v. Mayo Collaborative Services</i>

In Bilski v. Kappos (2010), this Court explained that its interpretation of 35 U.S.C. § 101 has been guided by over 150 years of historical practice. Yet two years later in Mayo Collaborative Services v. Prometheus Laboratories (2012), the Court triggered the most radical redefinition of patent-eligible subject matter in U.S. history by engrafting an inventive application requirement for patenting practical applications of scientific discoveries. Mayo based this requirement on three critical assumptions: (1) Congress has never addressed the question of the patentability of scientific discoveries; (2) foundational precedent of the English courts and of this Court excluded scientific discoveries and demanded inventive application as a condition of patent eligibility; and (3) a new extra-textual limitation on patentability was necessary to address the undue preemption of laws of nature and other scientific discoveries. Unfortunately, inadequate briefing in Mayo led the Court astray. The Nation’s patent statutes, stretching back to the founding era, unmistakably afford patent protection to technological innovations and scientific discoveries. Congress has expressly sought to encourage both technological inventions and scientific discoveries. The legislative concern has not been with preemption of inventive fields, which the durational limits and disclosure constraints of the Patent Act address, but rather with “min[ing]” the “exhaustless” “treasures” and “unlimited reach of science.” Specific legislative enactments in 1930, 1952, and 1954 refute any requirement of inventive application for patent eligibility. Furthermore, the Mayo briefs failed to address critical context and meaning of key cases bearing on patent eligibility of applications of scientific discoveries. Both Parker v. Flook (1978) and Mayo relied on a mistaken reading of Neilson v. Harford (1841) to conclude that English and American courts restricted patents to inventive applications of new discoveries. To the contrary, Neilson became the primary authority in England and the United States for the position that practical applications of discoveries were patentable without any invention in the means of application. Finally, contrary to Mayo’s supposition that a new extra-statutory doctrine was necessary to limit undue preemption of scientific discoveries, this Court has long held that this role was served by patent law’s express disclosure requirements. See O’Reilly v. Morse (1854) and subsequent cases. As reflected in the eight opinions in Athena Diagnostics, Inc. v. Mayo Collaborative Services, as well as clear signals in numerous other cases, the Patent Office’s frequent revision of examiner guidance documents, and legislative hearings, the Federal Circuit, district courts, Patent Office, and inventors have struggled unsuccessfully to apply the Mayo/Alice decisions coherently and predictably. These decisions have imposed massive costs upon all of these institutions and the public, thereby undermining the patent system. This case provides an ideal vehicle for the Supreme Court to revisit the standards for patent eligibility on the basis of thorough briefing of the proper statutory and jurisprudential considerations.

Movements in the Discretionary Authority of Federal District Court Judges Over the Last 50 Years

From my vantage point, judges’ individual control over their courtrooms remains largely stable. Updated but similar versions of the problems encountered (and created) by Judge Julius Hoffman now confront our newer, younger, and perhaps better qualified judges. While federal judges may be less likely to encounter radical, overtly political defendants and government officials trying to wrest control (and public opinion) from them in court, they are more likely to see minority defendants along with accompanying “courtwatchers” who want inequities in the criminal justice system noticed in individual cases. I will first describe the Chicago Eight (soon to become the Chicago Seven) trial and then explain the new courtwatchers in Part I. On the other hand, I have witnessed federal judges having lost, primarily since the mid-1980s, much of their earlier control over the criminal justice process in general, but in particular over charging and sentencing decisions. Judicial discretion and control over a criminal trial is obviously less important when 97.2 percent of federal felony sentences are imposed by the district judge pursuant to a guilty plea negotiated between the government and the defendant, and only 2.8 percent of the sentences that judges impose are after a jury or bench trial. The power players in the criminal justice system are the folks who determine whether to offer a plea and what plea terms to include. We live in a world of guilty pleas controlled by prosecutors. Federal prosecutors determine whom to investigate, whom to charge, and how much punishment to impose. However, the pendulum has begun to swing back, and federal district judge discretion over criminal sentencing is now on the rise. I will support these observations, as well as offer some good sentencing news post-Booker, in Part II. Finally, in Part III, I will raise a relatively new phenomenon — federal district court judges imposing nationwide temporary restraining orders against the federal government. Though this last trend is not limited to or primarily about criminal trials, I think it fairly covered by the topic for today — most of these injunctions involve controversial policies that can, like with the Deferred Action for Childhood Arrivals case, lead to criminal charges. This legal device allows a single federal judge in a single judicial district to determine federal policy for the entire country, at least until the matter can be resolved by the Supreme Court. This is one of the few areas where I have seen federal district judicial authority expand over the last few decades. The Supreme Court has taken very recent notice of this trend, and will likely have something to say about the matter soon.

Why Federal Magistrate Judges Can Improve Judicial Capacity

Judicial confirmations are often the subject of political debate. Recently, much of the discussion has focused on the Trump administration and Republican senators’ success in nominating and confirming federal judges. Irrespective of this success, however, consistently growing caseloads over the years continue to overburden many federal district courts, leading to unnecessary cost and delay. This essay surveys the current judicial capacity crisis in many district courts and Congress’ struggles to resolve it. It then turns to short-term solutions that courts have used to alleviate their expanding burdens and highlights the federal courts’ most successful short-term solution: the federal magistrate judge system. This essay then introduces the origins and modern structure of the federal magistrate judge system and argues that, until Congress is able to pass substantive judgeship legislation, an ambitious expansion of this program would best serve struggling district courts.

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.

Dangerousness Standards for Sex Offender Civil Commitment

In United States v. Wooden , 887 F.3d 591 (4th Cir. 2018), the government appealed a ruling to the Fourth Circuit Court of Appeals, arguing that the federal district court erred in finding that Walter Wooden, a previously convicted sex offender, did not suffer from pedophilia and thus lacked a

DuPont says US government made it pollute

In documents filed last month in New Jersey federal district court, DuPont acknowledges it left fluorochemical and explosive contaminants behind at four major New Jersey operations. But the firm claims that it did so as a result of work required by the federal government during World War I and World War II. DuPont’s assertion came to light as the firm attempts to shift suits filed in state courts by New Jersey attorney general Gurbir S. Grewal to federal jurisdiction. The dispute dates back to March, when New Jersey ordered DuPont and Chemours—the DuPont spin-off that owns the contaminated sites—to investigate and clean up poly- and perfluoralkyl substances (PFAS). Scientific studies suggest some PFAS may cause serious health problems. At about the same time, New Jersey filed four lawsuits against DuPont and Chemours in state court seeking clean up at the sites of PFAS contamination as well as contaminants that include

The Shadow Judiciary

Magistrates function as a sort of shadow judiciary, assisting U.S. district court judges — and sometimes standing in their shoes — in managing caseloads, resolving disputes, making law, and choosing winners and losers. Yet we lack basic knowledge about magistrates themselves, the rules that govern their activity, and the ways in which they execute their duties. To fill those gaps, this Article offers a detailed typology of the district-level local rules and standing orders that govern magistrate operations in civil cases. It also describes a case study of ten years of magistrate practice in a single federal district court, the U.S. District Court for the Northern District of Georgia, in resolving summary judgment motions in employment law cases. The case study reveals that the involvement of a magistrate makes a difference to the outcome, and that the way that a magistrate became involved (by automatic operation of court rules, by consent of the parties, or by the discretion of the district judge) matters as well. These findings suggest multiple avenues for future research, nationwide, to understand the complexities of the interactions between magistrates and district judges, and the role of magistrates more generally.

Police worldviews, unconscious bias, and their potential to contribute to racial and ethnic disparities in New York Police Department (NYPD) stops for reason of “furtive movement”

In Floyd et al. v The City of New York (2013), the federal district court judge ruled that the New York Police Department (NYPD) was engaging in unconstitutional stop-and-frisk practices that targeted predominately Black and Latino New Yorkers. Among the major decisions made in Floyd (2013), the judge identified “Furtive Movement” as being a weak indicator for establishing the reasonable suspicion needed to justify a Terry stop. Moreover, the judge recognized that “Furtive Movement” is a vague and subjective term, which may be affected by unconscious bias and lead to racial and ethnic disparities in stop outcomes. Building on the judge’s concern about unconscious bias, the current study attempts to (1) provide a theoretical framework for understanding how police officers’ worldview may contribute to or interact with unconscious biases and to (2) examine whether NYPD officers are more likely to stop Black and Hispanic New Yorkers than their White counterparts for the reason of “Furtive Movement.” The latter inquiry is explored using NYPD stop-and-frisk data from 2011, 2013, and 2016. The social scientific implications of this research provide support for (1) the judge’s apprehension toward police stops on the basis of furtive gestures and (2) the effectiveness of court-ordered intervention.

Illegal Military Recruitment and Constitutional Law:The Judicial Protection of Forced Recruits in Late Nineteenth-Century Mexico

Juana Tapia did not know how to sign her own name. Yet, on September 12, 1900, Tapia successfully initiated a suit in federal district court for her son's release from military service. Her son, Miguel Álvarez, had been imprisoned by a local prefect during the recent municipal elections in the city of Hermosillo, Sonora, for alleged criminal activities. Instead of consigning Álvarez to a criminal judge to be prosecuted for these alleged crimes, the local prefect had ordered Tapia's son to nearby Torim to serve in the Mexican army's twelfth battalion.

IP Litigation in United States District Courts: 1994 to 2014

This article undertakes a broad-based empirical review of Intellectual Property (IP) litigation in United States federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent and trademark litigation trends as a unified whole. It undertakes a systematic analysis of more than 190,000 individual case filings and examines the subject matter, geographical and temporal variation within federal IP litigation over the last two decades. This article makes a number of significant contributions to our understanding of IP litigation. It analyzes time trends in copyright, patent and trademark litigation filings at the national level, but it does much more than simply count the number of cases; it explores the meaning behind those numbers and shows how in some cases the observable headline data can be positively misleading. Exploring the changes in the distribution of IP litigation over time and their regional distribution leads to a number of significant insights, these are summarized below. Just as importantly, one of the key contributions of this article is that it frames the context for more fine-grained empirical studies in the future. Many of the results and conclusions herein demonstrate the dangers of basing empirical conclusions on narrow slices of data from selected regions or selected time periods. Some of the key findings of this study are as follows: First, the rise of Internet file-sharing has transformed copyright litigation in the United States. More specifically, to the extent that the rate of copyright litigation has increased over the last two decades, that increase appears to be entirely attributable to lawsuits against anonymous Internet file sharers. These lawsuits largely took place in two distinct phases: the first phase largely consisted of lawsuits seeking to discourage illegal downloading; the second phase largely consists lawsuits seeking to monetize online infringement. Second, in relation to patent litigation, the apparent patent litigation explosion between 2010 and 2012 is something of a mirage; however there has been a sustained patent litigation inflation over the last two decades the extent of which has not been fully recognized until now. The reason why this steady inflation was mistaken for a sudden explosion was that the true extent of patent litigation was disguised by permissive joinder.Third, in relation to the geography of IP litigation, it appears that filings in copyright, patent and trademark litigation are generally highly correlated. The major exceptions to that correlation are driven by short term idiosyncratic events in copyright and trademark litigation — these are discussed in detail — and by the dumbfounding willingness of the Eastern district Texas to engage in forum selling to attract patent litigation. The popularity of the Eastern District of Texas as a forum for patent litigation is a well-known phenomenon. However, the data and analysis presented in this study provides a new way of looking at the astonishing ascendancy of this district and the problem of form shopping in patent law more generally.

Suffer the Little Children to Come: The Legal Rights of Unaccompanied Alien Children under United States Federal Court Jurisprudence

Abstract This article analyses United States (US) federal court jurisprudence to determine the legal rights of unaccompanied alien children (UAC) in various stages of immigration enforcement proceedings. After briefly discussing statistics on UAC in the US, it explains the legal context of US laws governing unaccompanied minors. Through examining 40 cases decided by the 12 US Circuit Courts of Appeals and various federal district courts, the article specifies how these courts interpreted and expanded on the procedural legal rights of UAC upon apprehension by immigration officials, during placement or detention decisions of the Office of Refugee Resettlement (ORR), prior to voluntary departure, during asylum proceedings, when rearrested after release, and while released pending immigration proceedings. According to the US federal courts, the government must grant unaccompanied minors procedural due process if it denies their release to the custody of an available and willing legal custodian. Case law examining the rights of UAC prior to voluntary departure emphasizes the need to grant them the opportunity to consult with a responsible adult, including a lawyer from a free legal services list that should be provided to them. Federal courts have also tackled various procedural issues concerning asylum claims filed by UAC. These include the right of third parties to custody of the unaccompanied minor, the minority age at the time of the asylum application, and the right of UAC to request consent for a state juvenile court’s jurisdiction prior to applying for Special Immigrant Juvenile status. In removal proceedings against UAC, federal courts have elaborated on the scope and meaning of the right to counsel and the right to a bond rehearing upon their rearrest because of allegations of gang membership. Finally, federal courts have also examined issues concerning the rights of UAC while detained in ORR facilities and while in US territory. These include the right of an unaccompanied alien child to terminate a pregnancy while in ORR custody and the right not to be subjected to physical and sexual abuse while placed in a detention facility.

Federal Sentencing of Hispanic Defendants in Changing Immigrant Destinations

Research shows that federal punishment disparity between Hispanic and white defendants varies according to federal district court contexts. Recent sociological scholarship has also drawn distinctions between traditional Hispanic immigrant destinations and new or emerging immigrant destinations, and depicted the reception of Hispanic immigrants in new immigrant destinations as less welcoming and supportive than in traditional destinations. We examine whether federal courts in different Hispanic immigrant destinations exhibit differing levels of Hispanic citizen and non-citizen sentencing disadvantage circa 2000, and then circa 2010. We find that traditional destinations exhibit little or no Hispanic versus non-Hispanic disparity, while Hispanic citizens and non-citizens both received longer sentences in new destinations and in non-immigrant destinations circa 2000. By the early 2010s, emerging destinations did not sentence Hispanic citizens and non-citizens significantly differently from traditional destinations. However, new destinations, along with non-immigrant destinations, sentenced Hispanic non-citizens more harshly, especially the undocumented.

Constitutional Law: A Survey of Michigan Cases

This article surveys constitutional cases coming out of Michigan from May 31, 2017 through June 1, 2018. The survey period tended to involve topics that will be in the fronts of the minds of U.S. Supreme Court watchers for the next several years: analytical approaches to religion, equal protection, and due process that may morph as Justice Brett Kavanaugh takes the seat vacated by former Justice Anthony M. Kennedy. Cases were heavier on federal constitutional law than state constitutional law; this article therefore focuses more heavily on the former. The article analyzes cases involving enumerated rights — namely, cases involving speech and religion under the First Amendment; unenumerated rights under the Equal Protection and Due Process Clauses; and the scope and other limits on government power, generally. This article includes, of course, coverage of cases from Michigan state courts, but because some of the most interesting cases during the survey period were litigated in federal courts, the article also covers cases from federal district courts in Michigan and, when appropriate, cases from the Sixth Circuit U.S. Court of Appeals involving Michigan parties. During the survey period, federal courts and Michigan appellate courts broke new ground, particularly in the areas of free exercise, equal protection, threshold questions around due process rights, the essential political nature of Native American tribes, and the Contracts Clause.