US Federal Courts Research Articles

REAL-WORLD ACCESS CONTROL SYSTEMATIC FAILURES; REALITY OR VIRTUAL REALITY?

This paper examines the true causes of systematic failures of real-world access control within the context of modern business transactions. Today’s business transactions depend heavily on systems that were developed and protected by off-the-shelf, checklist-mentality security technologies/products such as firewalls, intrusion detection systems and anti-virus software. This dependency, as well as the oversight of system level security requirements, frequently leads to incorrect and incomplete security implementation at the business process and transaction levels. To fully illustrate the critical issues faced by today’s system, this paper utilizes a real-life cyber crime case for analytical purposes. This case was successfully prosecuted by a jury trial at the US Federal Court in Seattle during the period of 1999-2000. It revealed many fatal system security failures and business process trust collapses in an environment involving multiple online web-based systems. The paper then shows how such failures are directly attributed from the inappropriate application of technologies/products based on false assumptions of trust, as well as the lack of appropriate security engineering process during the systems development phase. Observations and recommendations are also made regarding what can be done to enhance security and trust requirements at the levels of business transactions and processes.

The Equitable Allocation of Deceased Donor Lungs for Transplant in Children in the United States

On June 5, 2013, a US Federal Court ordered a temporary restraining order to allow two children within the court's jurisdiction to be registered on the adolescent lung transplant waiting list. On June 10, 2013, the Organ Procurement and Transplantation Network's Executive Committee altered lung allocation policy to offer candidates aged younger than 12 years greater access to adult lungs at the discretion of the national Lung Review Board. The Scientific Registry of Transplant Recipients reviewed trends over time in deceased donor lung transplant waitlist mortality and transplant rates, comparing children and adults. Mortality rates of candidates active on the waiting list have been higher for children aged 0-5 years, but have not differed for children aged 6-11 years compared with adolescents aged 12-17 years or adults aged 18 years or older. Transplant rates among active waitlist candidates have been comparable across all age groups. Thus, there is little evidence that the allocation system led to differences in waitlist mortality or transplant rates for children compared with adults. However, these comparisons are difficult to interpret given that current policies likely led to unaccounted differences in the severity of illness at the time of listing.

Sentencing outcomes of the older prison population: an exploration of the age leniency argument

Using data compiled by the United States Sentencing Commission, we examine whether defendants sentenced in US federal courts are shown leniency based on their age, paying particular attention to the outcomes of older defendants (age 50 and over). One way in which this research is unique is that it focuses exclusively on a sample of older offenders and makes more precise distinctions by separately examining three categories of ‘elderly’ offenders – the ‘young-old,’ the ‘middle-old,’ and the ‘oldest-old.’ Consistent with prior research, our findings indicate an age leniency effect where younger defendants (the ‘young-old’) had the highest odds and older defendants (the ‘oldest-old’) had the lowest odds of incarceration. However, contrary to expectations, this finding does not hold for the sentence length decision. Legal factors (criminal history, number of counts, going to trial) also played a large role in increasing the likelihood and length of their sentence outcomes. In addition, variations were found across different types of offense categories. The findings in this study point to the importance of making clearer distinctions between the ‘elderly’ offender populations and suggest that findings may be masked if differences between the ‘young-old’ and the ‘old-old’ are not considered. Our results indicate the need for continued exploration of issues dealing specifically with the aging prison population, as well as the examination of policies and practices that impact offenders of all ages.

Race and Ethnicity Effects in Federal Sentencing: A Propensity Score Analysis

Research has examined the role of race and ethnicity in the punishment of offenders. Narrative and meta-analytic reviews have indicated that race/ethnicity influences key sentencing outcomes, at least under certain conditions. This research relies almost exclusively on regression-based analyses for determining race and ethnicity effects. While this technique is useful, recent statistical advances may provide more accurate race/ethnicity estimates. The current study employs propensity score analysis to compare punishment outcomes across White, Black, and Hispanic offenders sentenced in US federal courts during the years 2006 through 2008. Results suggest that (a) during the in/out decision the effect of minority status is frequently smaller than that estimated by regression modeling and (b) during the sentence length decision the effect of minority status is frequently larger than that estimated by regression modeling. Consequently, the modeling strategy may produce different conclusions regarding the presence of race- and ethnic-based disparity in sentencing outcomes.

Explaining the “unpredictable”: An empirical analysis of U.S. patent infringement awards

Patent infringement awards are commonly thought to be unpredictable, which raises concerns that patents can lead to unjust enrichment and impede the progress of innovation. We investigate the unpredictability of patent damages by conducting a large-scale econometric analysis of award values. We begin by analyzing the outcomes of 340 cases decided in US federal courts between 1995 and 2008 in which infringement was found and damages were awarded. Our data include the amount awarded, along with information about the litigants, case specifics and economic value of the patents-at-issue. Using these data, we construct an econometric model that explains over 75% of the variation in awards. We further conduct in-depth analysis of the key factors affecting award value, via targeted regressions involving selected variables. We find a high degree of significance between award value and ex ante-identifiable factors collectively, and we also identify significant relationships with accepted indicators of patent value. Our findings demonstrate that infringement awards are not systematically unpredictable and, moreover, highlight the critical elements that can be expected to result in larger or smaller awards.

Where Theory and Law Meet: Trends in establishment clause jurisprudence in the US federal courts and implications for science education

In this study, federal court opinions and writings of legal scholars, spanning 63 years of establishment clause jurisprudence in the US federal courts were analysed in an effort to determine dominant trends in judicial philosophy that are of significance to science educators. The study's findings suggest that the dominant legal theory underpinning the adjudication of establishment clause cases on the US Supreme Court has undergone a shift from one that emphasizes separation of church and state to one that favours integration of religion in the public sphere. This development poses significant challenges to science educators who are charged with the task of teaching in accordance with state science standards that emphasize topics that are considered controversial (e.g. evolution and global climate change) by many in the faith-based community. These findings constitute a basis for forecasting future actions in US courts regarding the role of government in establishing religious practices in the public sphere—particularly where such actions intersect with the roles of teachers in the nation's public K-12 science classrooms. Finally, we argue that scientists and science educators must adopt an assertive stance in defining science in curricular frameworks, providing something for the courts to draw upon in future decisions.

International human education rights commitments in US courts

The current study analyses the behaviours of US state actors in engaging in international human social rights practices. In particular, through citation count analysis, we examine the citation patterns of US federal and state courts in utilising international human rights instruments, such as international human social rights treaties, in facilitating human rights-based education rights. The empirical findings indicate that US federal and state courts are not engaging the global judicial human rights networks in promoting human rights-based education rights as a type of universal human social right. Theoretical and empirical implications are presented in the concluding section.

WEAPONS OF SEX, WEAPONS OF WAR

Recent international attention has focused on designations of rape and sexual violence in conflict zones. The most formative debates on this issue centre on the 1990s-era conflicts in the former Yugoslavia and Rwanda, which also involved heated debates amongst feminists over designations of rape as genocide. While the International Criminal Tribunal for Rwanda case, the Prosecutor v. Akayesu, resulted in the first formal charge of wartime rape as genocide within international criminal law, the first case to charge wartime rape as genocidal occurred in US federal court. This project looks for the overarching social and political meaning of the contemporary international legal focus on rape and sexual violence. It examines why, how, and to what extent US and transnational feminist legal academics and activists transmitted and secured their understandings of the relationships between sex, violence and ethno-religious difference within the international legal arena. In doing so, I argue that their participation in the contemporary recognition and narration of sexual injury in a global context both retreads and reconfigures the heated 1980s-era US Sex Wars debates on the workings of gender, sex, race and power.

Access to the US Federal Courts: Only Interested Parties Need Apply?

Access to the US Federal Courts: Only Interested Parties Need Apply?

Predicting the 'Unpredictable': An Empirical Analysis of U.S. Patent Infringement Awards

Patent infringement awards are commonly thought to be unpredictable, which raises concerns that patents can lead to unjust enrichment and impede the progress of innovation. We investigate the predictability of patent damages by conducting a large-scale econometric analysis of award values. We begin by analyzing the outcomes of 340 cases decided in US federal courts between 1995 and 2008 in which infringement was found and damages were awarded. Our data include the amount awarded, along with information about the litigants, case specifics and economic value of the patents-at-issue. Using these data, we construct an econometric model that explains over 75% of the variation in awards. We further conduct in-depth analysis of the key factors affecting award value, via targeted regressions involving selected variables. We find a high degree of significance between award value and ex ante-identifiable factors collectively, and we also identify significant relationships with accepted indicators of patent value. Our findings demonstrate that infringement awards are systematically predictable and, moreover, highlight the critical elements that can be expected to result in larger or smaller awards.

Collective Redress in EU Competition Law: An Open Question with Many Possible Solutions

This paper analyses the current trends of the debate in the area of collective redress of injuries caused by the consequences of anti-competitive behaviour in the EU in light of the more recent case law governing class certification of antitrust collective complaints in the US federal courts and of the legislative developments occurring in several European jurisdictions. Whilst not advocating the total 'transplantation' of opt-out class actions in EU competition law, it will illustrate that the Commission's concerns as to the viability of these collective lawsuits have become less pressing and consequently, will argue for a more open-minded discussion of how to create effective and fair mechanisms for the collective redress of individual rights. It will first provide a brief examination of the current approach adopted by the Commission to collective redress in the area of competition law and, more specifically, in respect to 'diffuse torts'. Thereafter, the paper will analyse the case law of the US Superior Federal Courts concerning the class certification of collective antitrust complaints and illustrate that the Commission's scepticism as to the viability of these actions may no longer be justified. It will be shown that the scrupulous scrutiny of the proposed class filings, conducted by the American courts can contribute effectively to 'identifying' prima facie unmeritorious claims and thereby allowing only truly 'suitable' complaints to proceed as class actions. In light of the forgoing, it will be concluded that the Commission's position on these issues seems difficult to sustain and could even become an obstacle to discussing how to respond to the demands of ensuring effective redress to the victims of torts having a widespread impact on society and the economy, for which individual dispute settlement may be inefficient.

US Courts and the Anti-Arbitration Injunction

This article explores an important area of US arbitration law: whether a US federal court has the authority, under the Federal Arbitration Act, to enjoin an international arbitration. Despite New York’s status as the preeminent US jurisdiction for lawsuits concerning the recognition and enforcement of international arbitration agreements and awards, there has been some lack of analytical consensus among the federal district courts of New York as to the basis for and propriety of granting an ‘anti-arbitration injunction’ in the international arbitration setting. The Second Circuit Court of Appeals has yet to rule on the issue. This Article discusses US federal court jurisprudence on the subject of anti-arbitration injunctions and proposes a framework by which US federal courts might analyze whether they can and should issue anti-arbitration injunctions of international arbitrations.

Credibility battles in the autism litigation

That vaccines do not cause autism is now a widely accepted proposition, though a few dissenters remain. An 8-year court process in the US federal vaccine injury compensation court ended in 2010 with rulings that autism was not an adverse reaction to vaccination. There were two sets of trials: one against the measles-mumps-rubella (MMR) vaccine and one against the mercury-based preservative thimerosal. The MMR story is more widely known because of publicity surrounding the main proponent of an MMR-autism link, British doctor Andrew Wakefield, but the story of thimerosal in court is largely untold. This study examines the credibility battles and boundary work in the two cases, illuminating the sustaining world of alternative science that supported the parents, lawyers, researchers, and expert witnesses against vaccines. After the loss in court, the families and their advocates transformed their scientific arguments into an indictment of procedural injustice in the vaccine court. I argue that the very efforts designed to produce legitimacy in this type of lopsided dispute will be counter-mobilized as evidence of injustice, helping us understand why settling a scientific controversy in court does not necessarily mean changing anyone's mind.

Stolen Art Restitution Claims and the Exhaustion of Local Remedies: How Foreign-Based Plaintiffs are Able to Succeed Under the Foreign Sovereign Immunity Act

Stolen art restitution claims under the Foreign Sovereign Immunity Act (“FSIA”) present unique procedural issues that implicate the history, purpose, and objectives of the FSIA. At the forefront of these issues are how foreign-based plaintiffs are able to bring suits against foreign governments or foreign citizens in US Federal Courts. Whether these foreign-based plaintiffs must exhaust local remedies in their country of origin is another issue that these kinds of suits typically have courts resolve. This article provides answers to these issues through a historical discussion of the implementation of the FSIA and an analysis of recent case law.

Sentencing Native Americans in US Federal Courts: An Examination of Disparity

Existing sentencing literature largely focuses on the study of white, African-American, and to a lesser extent, Hispanic offenders. Unfortunately, very little is known about the sentencing of Native American offenders, especially in the federal courts. To address this shortcoming, the current study employs United States Sentencing Commission data for the fiscal years 2006-2008 to examine the comparative punishment of Native Americans. Consistent with the focal concerns perspective and its reliance on perceptions of race-based threat, findings demonstrate that Native Americans are often sentenced more harshly than white, African-American, and Hispanic offenders. Moreover, race-gender-age interactions indicate that during the incarceration decision, young Native American males receive the most punitive sentences, surpassing the punishment costs associated with being a young African-American or Hispanic male. These findings highlight the importance of directing increased attention toward the sentencing of this understudied offender population.

Employment discrimination law exposures for international employers

PurposeThe purpose of this paper is to use a risk management perspective to identify the risks of employment discrimination law liability for multinational employers.Design/methodology/approachData from 101 US Federal Court cases that involved multinational employers operating both inside and outside of the USA were content coded and then used to identify factors that predict the frequency that foreign employers operating inside the USA – and US employers operating outside the USA – were subject to lawsuits under US employment discrimination laws.FindingsThis study found that employment lawsuits based on sex discrimination against females was the most significant risk exposure. Employers whose home country was from a Western culture were at comparatively greater risk for charges of both age and religious discrimination. Employers whose home country was from an Asian culture were at comparatively greater risk for charges of both race and national origin discrimination.Research limitations/implicationsThis study demonstrates the viability and usefulness of a risk management framework for examination of issues related to law and management.Practical implicationsThis study enables the identification of risk factors that multinational employers can use to strategically target their loss prevention efforts in order to more effectively and efficiently avoid or reduce potential liability for employment discrimination.Social implicationsThe risk factors identified in this study can help employers to take efforts to reduce employment discrimination in their multinational operations, thereby reducing the frequency and likelihood that such discrimination may occur.Originality/valueThis is the first study to use a risk management framework to empirically identify employment law risk exposures for multinational employers.

Power, Powerlessness and Petroleum: Indigenous Environmental Claims and the Limits of Transnational Law

Environmental disasters, particularly oil spills, increasingly involve a complex intermingling of the national, international and often the transnational. Traditional responses to seeking remediation have pursued the legal path of class action suits against multinational corporations. This article examines one such historic case, Aguinda v. Texaco, Inc., in which residents of Ecuador's Amazonian rainforest brought suit against Texaco in US federal courts through the legal opening provided by the Alien Tort Claims Act of 1789. Dominant analyses of this case have centered on the failed promise of this law to serve as a human rights tool and view this failure in terms of the sovereigntist limitations on an emerging cosmopolitan order. Against these analyses, this article offers an alternative approach that shifts the focus from the limitations of the law towards a perspective on power. Bringing to bear political science's power debate to develop this perspective on power, the article highlights what analytical tools from this debate are translatable or which are not for understanding the power relations of the Aguinda case. Through this exercise, this article aims to prod a reconsideration of dominant theories of power, developed in a frame of the nation-state, and to provoke their redevelopment to better engage with the complex and dynamic flows of power in cases of environmental justice and politics across borders.

Excessive or Unpredictable? An Empirical Analysis of Patent Infringement Awards

Over the past several years, the US patent reform debate has considered the question of excessive infringement damages. More recently, claims that awards are unpredictable have gained prominence in policy discussions. This paper evaluates the charges of excessive and unpredictable awards by analyzing the outcomes of 340 cases decided in US federal courts between 1995 and 2008 in which infringement was found and damages were awarded. Our data include the amount awarded, along with information about the litigants, case specifics and economic value of the patents-at-issue. We find (1) no evidence of systematic excessiveness and (2) a high correlation between award value and ex ante-identifiable factors. First, we find that the largest eight awards are isolated occurrences that represent nearly half of the aggregate amount of damages over the target period. Second, we construct an econometric model that explains over 75% of the variation in awards. These data and findings refute claims that infringement awards are systematically excessive or unpredictable and provide empirical support for the approach recently taken in the America Invents Act. More generally, they counsel for increased focus on econometric analysis as the tool for identification of problem areas and prescription of policy solutions in legal systems.

Consideration on regulations for research on human ES cells, based on the preliminary injunction by a US federal district court

Consideration on regulations for research on human ES cells, based on the preliminary injunction by a US federal district court

Downward departures in US federal courts: do family ties, sex, and race/ethnicity matter?

Given the gendered and racialized discourse about drug offenders with family ties, the present study used binary logistic regression of federal sentencing data (2001–2003) to examine whether family ties influence defendants' likelihood of receiving downward departures and whether defendants' race/ethnicity and sex condition any family ties effect. The results reveal no variation in the effects of family ties by race/ethnicity, but do lend credence to concerns that considering family ties could produce sex disparities in departure outcomes. Departure chances increase for cohabitating offenders of both sexes who have dependents, but become more pronounced for females than for males relative to their non-familied counterparts. For married offenders without dependents, males' departure chances increase while those for females decrease. Future research needs to examine whether similar patterns emerge in analyses of other types of offenders (e.g. larceny) and other sentencing decisions.