United States Federal Courts Research Articles

Litigating National Security Cases under The United States Uniform Code of Military Justice

This paper will discuss classified litigation procedures in United States Military Courts-Martial, governed by Military Rule of Evidence 505 and the Uniform Code of Military Justice. The differences between United States Federal Court procedures and United States Military Commissions, governed by the Classified Information Privilege Act (cipa) and Military Commissions Rule of Evidence 505, are also discussed. Finally, best practices and selected military cases regarding espionage are presented.

<i>David v. Goliath</i>: The Gay Games, the Olympics, and the Ownership of Language

The Gay Games is firmly established on the contemporary global sports calendar, but is seldom canvassed in mainstream sports media, or considered a model for sports administrators. This is regrettable, as the Games’ ethos offers many clues into the relationships between individual and communal empowerment for homosexual and heterosexual participants alike, while providing a site of resistance against entrenched norms of elitism, nationalism, victory and record-breaking indicative of the modern Olympic movement. Credit for this inclusive ethos rests with the vision of inaugural Gay Games organiser Dr. Tom Waddell. Drawing on Games archives, this paper outlines Waddell’s vision, then discusses the impact of a protracted legal dispute instigated by the United States Olympic Committee in 1982 over the use of the term ‘Olympics’ in association with Gay Games I and II. Four United States Federal court rulings are examined, with particular reference to the contrasting hierarchy of private intellectual property and public civil rights considered under United States law of the time. Domestic and international legacies of the dispute are also briefly examined, focusing on the inherent tensions between the state-sanctioned protection of Olympic terminology, the ideals of free speech, the ownership of common sporting terms, and the potential discriminatory effects of selective trademark enforcement. The paper concludes with a brief discussion of how Waddell’s vision superseded each of these legal technicalities to ensure the Games continues to provide a viable model for inclusive and engaged participation for all people.

CFIUS under Review: National Security Review in the US and the WTO

Ralls v. CFIUS is the first and only CFIUS challenge that has been heard by United States federal courts. In granting standing to the foreign investor, the DC Circuit determined that the purchaser had gained protectable property interests and was therefore guaranteed due process rights. However, this privilege is circumscribed insofar as factual considerations cannot touch on issues of national security and classified sources. These limitations render the “justiciability” of CFIUS decisions toothless, much in the same way that Article XXI issues are effectively non-justiciable before the GATT Panel.

The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law

This Article is about two things: law in United States and Chief Justice John Roberts’s judicial philosophy. How do two relate? Quite nicely, actually. First, Chief Justice Roberts has penned majority opinions in landmark cases directly addressing important law issues. Second, cases involving law serve as an excellent window into a Justice’s judicial philosophy. Consider Chief Justice Roberts’s concluding paragraph in Medellin v. Texas, a watershed case in which Court held that judgments of International Court of Justice (ICJ) are generally not enforceable in United States courts: In sum, while ICJ’s judgment in Avena creates an law obligation on part of United States, it does not of its own force constitute binding federal law that pre-empts state restrictions... Nothing in text, background, negotiating and drafting history, or practice among signatory nations suggests that President or Senate intended improbable result of giving judgments of an tribunal a higher status than that enjoyed by many of our most fundamental constitutional protections. Federalism, separation of powers, treaty interpretation, U.S. sovereignty — all issues touched on in just two sentences. Moreover, as law expands from governing only relations between States to touching every area within jurisdiction of several states, status of law in United States has come under increasing scrutiny. No longer is it uncontroversial to say that international law is part of our Indeed, liberal and conservative justices routinely split over cases involving law. Part Two of this Article will provide an overview of five law issues in United States ((1) presumption against extraterritoriality; (2) human rights litigation in United States federal courts; (3) doctrine of self-executing treaties; (4) scope of treaty power; and (5) customary law as federal common law) and then provide an update on current status of these issues under Chief Justice Roberts. Part Three draws conclusions about Chief Justice Roberts’s judicial philosophy based on cases discussed and ultimately concludes that Chief Justice is a prudentialist, a judge who holds fast to the conviction that federal judges must cultivate virtues of modesty and humility, staying true to their constitutional duty to interpret law while fending off whenever possible temptation to intrude upon proper provinces of other public and private institutions.

Media access to juvenile proceedings: Balancing the tightrope between privacy rights and freedom of the press

The First Amendment to the U.S. Constitution has been invoked as the basis for the grant of media access to adult trials. Because the U.S. Supreme Court has not determined that the First Amendment right of public access similarly applies to juvenile delinquency proceedings, juvenile courts are faced with the issue of balancing the juvenile's privacy rights with the media's right to access information. This article undertakes research on media access to juvenile delinquency proceedings, including, the standards, limits, and conditions for such access through analyzing decisions of United States federal and state courts.

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.

Front and Back Covers, Volume 30, Number 5. October 2014

Front and back cover caption, volume 30 issue 5Front coverYOGA AND IPBikram Choudhury teaching a hot yoga class, California, October 2004. In this image Bikram Choudhury, a Los Angeles‐based yogi and the head of the profitable Bikram Yoga College of India, is assisting a student deepen and lengthen her posture, janushirasana with paschimottanasana, by walking on her back. Since emigrating from Kolkata in the 1970s, Bikram has built a multi‐million dollar yoga fitness empire based upon his signature series of 26 postures and two breathing exercises.Beginning in the early 2000s Bikram registered and attempted to enforce a set of copyright and trademark claims to his famous yoga series in three landmark cases that took place in the United States federal courts. At the core of these disputes, which to this day have never been fully settled, is the question of, ‘who owns what the yogi teaches’? and ‘who has the right to manage the practice’? Since property claims to yoga have been widely perceived as outrageous, Choudhury's lawsuits, the first to litigate this issue, have received international attention from a wide variety of actors.The contribution by Allison Fish to this special issue of ANTHROPOLOGY TODAY explores how other yogis, who like Bikram have committed their lives to the pedagogy of the practice, and Access to Knowledge activists, who are committed to opposing the possessive reach of contemporary intellectual property law, react to the question of whether or not yoga exists in the public or private domain.Back coverBRAZIL: COPYRIGHT AND CANNIBALISMTheodor de Bry's engraving for his book Americae tertia pars, 1592, which republished travel narratives by Hans Staden and Jean de Léry who travelled to what is now Brazil in the 1540s.Popular travelogues and prints created myths about indigenous Americans – as cannibals and ‘noble savages’ living without private property. The figure of the cannibal fuelled European political philosophies about human nature.In the early twentieth century in Brazil, modernist artists and writers reclaimed ‘cannibalism’ as a creative mode of consumption.More recently, ‘cannibalism’ has staged a comeback, of sorts, as a productive metaphor for creative challenges to copyright practices and intellectual property regimes.In this issue, Alexandra Lippman shows how in Brazil open intellectual property and copyright – in which remixing, sharing, and sometimes even piracy are encouraged – has been vernacularized as ‘cannibalism’ for the digital age.This special issue of ANTHROPOLOGY TODAY is devoted to following the ‘opening up’ of copyright worldwide and showing how alternative copyright licensing is being taken up, re‐imagined, and reworked in unexpected ways in a wide variety of vernacular settings.

Big Barriers to Building a New Generation of Arctic Vessels

The industry’s experience thus far drilling offshore the Arctic is a powerful argument to build a new generation of vessels and drilling rigs purpose built for operations in heavy ice. Many of the new exploration concepts that seek to overcome challenges in the Arctic were presented at the recent 2014 Arctic Offshore Technology Conference in Houston. Alexander Brovkin, a facilities and logistics adviser at the Chevron Arctic Center, agrees that while new vessel technology is needed for exploration drilling in the Arctic, first the resource must be proved by the drill bit. “An operator must first have a portfolio of Arctic wells before making a significant capital investment to design or build something new,” he said, adding that companies will be pushed to make decisions soon in order to comply with the terms and deadlines set by their offshore leases. Following Shell’s recent experiences, Arctic exploration off North America is at the moment paralyzed. Considered to be two of the most promising Arctic areas, development in the Chukchi and Beaufort Seas offshore Alaska has stalled out despite there being dozens of leases in those areas set to expire over the next couple of years. And after spending billions of dollars on its Arctic drilling program to date, Shell canceled all operations in the area for this year. The decision followed a series of accidents during the company’s Alaskan expeditions that began 2 years ago, one of which involved a drillship running aground, and a United States federal court decision that created uncertainty over the terms of its leases. ConocoPhillips and Statoil followed suit and have indefinitely postponed their Arctic drilling plans off Alaska. However, in the Russian Arctic, ExxonMobil and Rosneft are pressing ahead with a joint venture using conventional semisubmersible technology, which limits their operations to the open water season.

Electronic evidence in torrent copyright cases

Thomas M. Dunlap and Nicholas A. Kurtz examine the methodology behind obtaining electronic evidence of peer-to-peer users and the use of that evidence in current copyright infringement actions in United States Federal Courts.

Reaching Out: Understanding the Puzzle of Cross-Party Nominations to the Lower United States Federal Courts

Scholars have argued that U.S. presidents use their judicial appointments to advance their political goals. However, on rare occasions, presidents nominate people who are not members of their political party to the judiciary. This study will examine the factors that affect the probability of a cross-party judicial nomination occurring, in order to better understand the goals that presidents are seeking to advance through these unusual actions. Looking at nominations to United States federal circuit courts and district courts between 1977 through 2004, the study finds that, controlling for a number of relevant factors, a greater number of opposition senators from a state and a higher level of electoral competition between the Republican and Democratic parties in a state increase the probability that a president will name someone from outside of his party from that state to a federal court vacancy. The findings support the hypothesis that presidents make cross-party judicial nominations to further their partisan electoral objectives, and as a response to institutional pressure from opposition senators through the use of Senate rules.

An Assessment of Filartiga v. Pena Irala

The case of Filartiga v. Pena Irala is related with the death of seventeen year old boy under due to the torturer of the police under custody. The case as a landmark judgment, establish case law for United States federal courts to punish non-American citizens for tortious acts committed outside the United States that were in violation of public international law or any treaties to which the United States is a party.

Looking Forward: An Introduction to the Symposium Issue

Professor Rhonda Copelon was a trailblazing human rights lawyer and activist, one of the world’s foremost legal scholars of the rights of women, and founder of the International Women’s Human Rights (“IWHR”) Clinic at City University of New York (“CUNY”) School of Law. Her extensive work on women’s human rights has had a formative influence in shaping the discourse on human rights under international and domestic law. Professor Copelon’s accomplishments in the human rights field are too numerous to list; however, it can be said that she is most remembered for opening United States federal courts to international human rights violations and demanding that international tribunals address gender-based violence.1 Rhonda Copelon passed away on May 6, 2010. Her groundbreaking work continues to inspire human rights activists and lawyers in all parts of the world. The City University of New York Law Review dedicated its 2012 Symposium to Professor Copelon’s legacy and how her work has been a foundation for the ongoing protection of human rights.2 The Symposium, titled Looking Forward: Rhonda Copelon’s Legacy in Action and the Future of International Women’s Human Rights Law, was held on March 30, 2012, at the CUNY Graduate Center in Midtown Manhattan in collaboration with the IWHR Clinic of CUNY School

Encouraging Corporate Social Responsibility with the Alien Tort Statute

In 1980, Filartiga v. Pena-Irala resurrected the once-dormant Alien Tort Claims Act, also known as Alien Tort Statute (“ATS”), in the United States federal district courts. Under the ATS, aliens file suit in the federal district courts under the premise of subject matter jurisdiction, seeking redress for wrongs committed in contravention of the “law of nations or a treaty of the United States.” Since Filartiga, the Courts have “published only nine significant decisions on the ATS” with the Supreme Court deciding only one ATS case in its entire history. Nevertheless, a majority of these claims are brought into the Southern District of New York. One of the greatest difficulties that federal courts have faced is interpreting a statute that may affect foreign relations. As Justice Scalia suggested in Sosa v. Alvarez-Machain, the courts welcome any “congressional guidance” as to the exercise of jurisdiction that has “potential to affect foreign relations.”

Janus Head of Liquidated Damages: Does Public Policy Influence United States Courts Regarding Enforceability of a Liquidating Damages Clause?

For a liquidated damages clause to be legally enforceable, it must not be economically punitive. The scholarly literature maintains there exist four legal test to validate a liquidated damages clause. These test are: a) intent, b) difficulty, c) reasonableness, and d) public policy. It is the application of the public policy test that creates scholastic controversy. Therefore, the purpose of this research is to statistically ascertain whether the United States court system employs a public policy legal test to determine the enforceability of a liquidated damages clause. The sample set is composed of 43 United States Federal appellate court cases. Chi-square and Cramer V coefficient, measuring judicature application preference, resoundingly rejected the null hypothesis: the United States Federal Court system maintains a patterned application preference to test the validity of a liquidated damages clause using a public policy test. This outcome is represented by a percent case split equaling a 3 to 40 metric. This metric translates into 7% of the cases applied a public policy measure, while 93% of the cases made no application, nor crafted a discussion regarding public policy. Therefore, providing the empirical conclusion that the public policy test possess inconsequential effect regarding validating a liquidated provision.

Assessing the cumulative effects of projects using geographic information systems

Systems that allow users to store and retrieve spatial data, provide for analyses of spatial data, and offer highly detailed display of spatial data are referred to as geographic information systems, or more typically, GIS. Since their initial usage in the 1960s, GISs have evolved as a means of assembling and analyzing diverse data pertaining to specific geographical areas, with spatial locations of the data serving as the organizational basis for the information systems. The structure of GISs is built around spatial identifiers and the methods used to encode data for storage and manipulation. This paper examines how GIS has been used in typical environmental assessment, its use for cumulative impact assessment, and explores litigation that occurred in the United States Federal court system where GIS was used in some aspect of cumulative effects. The paper also summarizes fifteen case studies that range from area wide transportation planning to wildlife and habitat impacts, and draws together a few lessons learned from this review of literature and litigation.

Habeas Corpus and Guantánamo Bay: A View from Abroad

The habeas corpus jurisdiction is a judicial authority to control state detention of any person, anywhere, when the judges can do so without breaching the duty of comity that they owe to other institutions of the state. In the leading United States Supreme Court decision, Johnson v. Eisentrager, 339 U.S. 763 (1950), the majority mistook the purpose of the writ, treating it as merely a protection for the rights of citizens. The purpose of habeas corpus is to uphold responsible government. The protection it provides for the rights of citizens is an instance of that broader purpose. The United States federal courts’ habeas corpus jurisdiction in respect of detentions in Guantanamo Bay can only be justified as a matter of constitutional principle, if there is an answer to the objection that comity toward the executive requires the judges not to inquire into the detention of aliens outside the United States. The Supreme Court gave part of that answer in Boumediene v. Bush, 553 U.S. ----, 128 S.Ct. 2229 (2008); this essay aims to articulate it.

American Indian treaties and the lower federal courts: A guide to treaty citations from opinions of the lower United States federal court system

Abstract In a previous study, it was found that 209 of 375 recognized American Indian treaties have been cited in opinions of the United States Supreme Court ( Bernholz, 2004 ). This guide now identifies – through 246 citations from 142 cases between the years 1863 and 2005 – 85 treaties found only in opinions of the lower Federal Court system. In addition, this investigation uncovered another treaty referenced by the Supreme Court. The remaining 80 instruments have not appeared in opinions of the federal courts ( Bernholz, 2001 , Bernholz, 2002 , Bernholz and Weiner, 2005 ).

Sosa v Alvarez-Machain and The Alien Tort Claims Act

Since the seminal case of Filartiga v Pena-Irala in 1980, the controversial Alien Tort Claims Act has regularly been invoked in United States federal courts to sue foreign perpetrators of international human rights violations. In Sosa v Alvarez-Machain, decided in 2004, the United States Supreme Court for the first time ruled on the Act’s proper application. This article, after first identifying three different approaches taken towards the Act by federal courts over the last 25 years, examines the Supreme Court decision. While welcoming the Court’s affirmation of the Act as a mechanism for addressing certain international law violations, it critiques the Court’s conservative and problematic test to determine the extent of the international law violations falling within the Act’s ambit, and highlights many ambiguities in the decision with which lower courts will have to grapple.

Is Transparency of Governmental Administration Customary International Law in Investor-Sovereign Arbitrations? -- Courts and Arbitrators May Differ

‘No authority was cited or evidence introduced to establish that transparency has become part of customary international law’ So said Tysoe J. of the Supreme Court of British Columbia, disagreeing with the arbitral Tribunal in the Metalclad case under NAFTA Chapter 11.1 Is Tysoe J. correct? Some very prominent courts take a restrictive view toward the recognition of international customary law. Some very prominent international arbitrators have less difficulty finding it. The concept of international customary law of transparency and security for international investors under bilateral and multilateral investment treaties is familiar to international commercial arbitrators. The content of that concept is, however, far from clear. This article will first examine how the United States federal courts have recently defined international customary law. Second, it will examine how the oft cited Metalclad arbitration award under Chapter 11 of North American Free Trade Agreement defines transparency of governmental administration as it relates to investors protected by investment treaties. Third, it will examine how a number of recent arbitral Tribunals and the World Trade Organization Appellate Body have dealt with the concept of transparency. Fourth, it will endeavour to deduce a consistent basis in law for the awards discussed. Interestingly, United States Federal courts and arbitrators do not refer to each other when discussing international customary law. It is unlikely that such learned jurists and arbitrators are unaware of what the other is saying. One might suspect that citing each other does not in their view add much to the definition of international customary law, at least in the area of law in dispute before that court or tribunal. Then again, it might be a struggle by the proponents of positivism showing deference to law-making bodies against international arbitrators who believe they have the authority and obligation to contribute to the …

The Fine Line between Security and Liberty: The "Secret" Court Struggle to Determine the Path of Foreign Intelligence Surveillance in the Wake of September 11th

The structure of the United States federal court system can be considered common knowledge: the Supreme Court sits atop a pyramid of lower circuit courts and trial courts, all of which are, for the most part, open to the public. Until 2002, most Americans were unaware of the existence of a "secret" court whose sole duty is to review and approve applications authorizing foreign intelligence surveillance conducted by the Executive Branch. The year 2002 was an unprecedented year for the Foreign Intelligence Surveillance Court ("FISC"),3 and the statute that created it, the Foreign Intelligence Surveillance Act of 1978 ("FISA").4 For the first time in FISA's twenty-three year history, FISC denied an application for electronic surveillance and the Foreign Intelligence Surveillance Court of Review ("Court of Review") was convened to hear its first appeal.5