The Warren Court: A Mosaic of Decisions Article
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Ellen S. Podgor, The Warren Court: A Mosaic of Decisions, 49 Stetson L. Rev. 215 (2020)Clicking on the button will copy the full recommended citation.
Articles
A Separation of Power Analysis of Forum Non Conveniens’ Adequate Available Forum Article
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Jason S. Palmer, A Separation of Power Analysis of Forum Non Conveniens’ Adequate Available Forum, 94 St. John's L. Rev. 157 (2020)Clicking on the button will copy the full recommended citation.
Under Article II, Section 1 of the United States Constitution, the President has the “executive power” of the United States. Much has been written about what the Framers intended when drafting this language in the Constitution. Most recent, in Zivotofsky v. Kerry, the Supreme Court determined that the Nation must “speak with one voice” with regard to policy about the legitimacy of foreign governments vis-à-vis the United States.
This foreign policy constitutional principle has important ramifications for how courts should address forum non conveniens analyses with regard to the adequate available forum. The Supreme Court neglected to provide substantive guidance in Piper Aircraft Co. v. Reyno with respect to the adequate available forum, leaving the lower courts to fend for themselves in determining when a forum is both adequate and available. As a result, lower court decisions are deeply divided as to when and how to dismiss a case to a foreign forum that is adequate and available.
This article posits that the courts are not the branch of government best suited to make this determination. Rather, the executive, as demonstrated through a critical review of Supreme Court separation of powers cases, is uniquely positioned to opine on whether a foreign judiciary can provide an adequate available forum. By deferring to the executive with respect to questions that involve such keys issues of foreign policy, courts avoid political landmines that are best left to the executive.
From Bail Out to Righting the Course: The Commonsense Action the United States Must Take to Address Its Flood Crisis Article
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Jaclyn Lopez, From Bail Out to Righting the Course: The Commonsense Action the United States Must Take to Address Its Flood Crisis, 33 Tulane Envtl. L. Journal 1 (2020)Clicking on the button will copy the full recommended citation.
The threats of the climate change crisis and sea level rise to U S. infrastructure, military readiness, food security and the economy are most evident in America floodplains, where the National Flood Insurance Program (NFIP) has worsened flooding and floodplain development by providing insurance policies that obscure risk and provide discounted coverage. Meanwhile, the United States contributes significantly to global greenhouse gas emissions, which fuels the climate change crisis and worsens flooding The disconnect between subsidizing development in floodplains and the fact that the United States has made those floodplains even more vulnerable to flooding by leasing federal fossil fuels that contribute to the climate change crisis and sea level rise has cost U S taxpayers billions of dollars and put millions of people and our nation most imperiled species at increased risk.
Flooding will only get more expensive and devastating especially if the United States continues in "business as usual" fossil fuel extraction and emissions, disproportionately putting vulnerable communities at risk Congress must immediately end federal fossil fuel leases and require that federal agencies that fund authorize, or permit fossil fuel activities analyze the indirect greenhouse gas emissions impacts of those activities. Congress must also require FEvL4 to use the best available climate change and sea level rise mapping to reflect actual flood risk provide a nationwide plan for flood disclosure and risk, analyze and avoid impacts to wildlife habitat, and pursue buyouts.
Is Algorithmic Affirmative Action Legal? Article
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Jason Bent, Is Algorithmic Affirmative Action Legal?, 108 Geo. L.J. 803–853 (2020)Clicking on the button will copy the full recommended citation.
It is now understood that machine learning algorithms can produce unintentionally biased results. For the last few years, legal scholars have been debating whether the disparate treatment or disparate impact theories available under Title VII of the Civil Rights Act are capable of protecting against algorithmic discrimination. But machine learning scholars are not waiting for the legal answer. Instead, they have been working to develop a wide variety of technological “fairness” solutions that can be used to constrain machine learning algorithms. They have discovered that simply blinding algorithms to protected characteristics like sex or race is insufficient to prevent algorithmic discrimination. Given enough data, algorithms will identify and leverage on proxies for the protected characteristics. Recognizing this, some scholars have proposed “fairness through awareness” or “algorithmic affirmative action” — actively using sensitive variables like race or sex to counteract unidentified sources of bias and achieve some mathematical measure of fairness in algorithmic decisions. But is algorithmic affirmative action legal? This article is the first to comprehensively consider that question under both Title VII and the Equal Protection clause of the Fourteenth Amendment. The article evaluates the legality of the leading fairness techniques advanced in the machine learning literature, including group fairness, individual fairness, and counterfactual fairness. The article concludes that existing affirmative action doctrine under Title VII and existing constitutional equal protection jurisprudence leave sufficient room for at least some forms of algorithmic affirmative action.
Supreme Court News Article
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Louis J. Virelli and David S. Rubenstein, Supreme Court News, 45 Administrative & Regulatory Law News 22 (2020)Clicking on the button will copy the full recommended citation.
Review of Recent Veterans Law Decisions of the Federal Circuit Article
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Stacey-Rae Simcox, Review of Recent Veterans Law Decisions of the Federal Circuit, 69 Am. U. L. Rev. 1343 (2020)Clicking on the button will copy the full recommended citation.
The last in-depth review of veterans law cases decided by the Federal Circuit was published by the American University Law Review in 2015. Since that time, the Federal Circuit has substantially changed procedural rules applicable to veterans cases, including authorizing the use of the class action device and clarifying the correct standard to use when challenging agency delay and inaction. In an important case with wide application to administrative law generally, the Federal Circuit addressed the issue of proper deference for agency regulations and policies. The Supreme Court granted certiorari in Kisor v. Wilkie and reaffirmed principles articulated in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., articulating a new three-step analysis. With regard to substantive developments in the area of veterans law, the Federal Circuit reversed a prior 2008 decision and provided final and effective relief for "Blue Water" Navy Veterans who have long fought for Agent Orange-related benefits. It is a remarkable time to be a veterans advocate, and we are pleased to provide this update.
Space Horizons: An Era of Hope in the Geostationary Orbit Article
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Roy Balleste, Space Horizons: An Era of Hope in the Geostationary Orbit, 35 Journal of Envtl. L. and Litigation 165 (2020)Clicking on the button will copy the full recommended citation.
Gut Renovations: Using Critical and Comparative Rhetoric to Remodel How the Law Addresses Privileges and Power Article
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Elizabeth Berenguer et al., Gut Renovations: Using Critical and Comparative Rhetoric to Remodel How the Law Addresses Privileges and Power, 23 Harv. Latinx L. Rev. 205 (2020)Clicking on the button will copy the full recommended citation.
Elegy for Anti-Corruption Law: How the Bridgegate Case Could Crush Corruption Prosecutions and Boost Liars Article
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Ciara Torres-Spelliscy, Elegy for Anti-Corruption Law: How the Bridgegate Case Could Crush Corruption Prosecutions and Boost Liars, 69 Am. U. L. Rev. 1689 (2020)Clicking on the button will copy the full recommended citation.
This piece discusses how the case Kelly v. United States, which was pending before the Supreme Court when this piece was written, was likely to expand two different developments in the Roberts Court’s jurisprudence: (1) expanding the constitutional protections for lying under the First Amendment and (2) narrowing the definition of corruption. This Piece describes how lower courts ruled in the Kelly case as well as arguments deployed by Kelly’s lawyers at the Supreme Court to try to exonerate their client Bridget Anne Kelly for her role in the Bridgegate scandal.
Epilogue: As this piece was being printed, the Supreme Court decided Kelly v. United States, 590 U. S. ____ , No. 18-1059 (U.S. May. 7, 2020). As predicted by the piece, the Supreme Court in Kelly expanded the Skilling case and narrowed what counts as corruption concluding “not every corrupt act by state or local officials is a federal crime.”
Perceived Community-Based Needs of Low-Income Parents with Psychiatric Disabilities Who Experienced Legal Challenges to Their Parenting Rights Article
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Robyn Powell et al., Perceived Community-Based Needs of Low-Income Parents with Psychiatric Disabilities Who Experienced Legal Challenges to Their Parenting Rights, 112 Children and Youth Services Review 104902 (2020)Clicking on the button will copy the full recommended citation.
Substantial numbers of US parents with psychiatric disabilities are highly vulnerable to loss of child custody or visitation, through child welfare system involvement or divorce proceedings. This study describes the community-based needs of parents with psychiatric disabilities who experienced legal challenges to their parenting rights. This exploratory study involved semi-structured telephone interviews with twelve former clients of a legal services program that provides representation to low-income parents with psychiatric disabilities facing challenges to child custody or visitation. Interviews were audio-recorded, professionally-transcribed, and analyzed using a qualitative, content analysis approach. Three broad themes emerged regarding the types of supports parents reported as useful for their well-being: (1) informal support networks; (2) responsive mental health care for the whole family; and (3) meaningful legal representation. Within these three areas, unmet needs were frequent and problematic. A fourth theme emerged: chronic economic hardships and material deprivation, which point to unmet financial needs. The needs and supports described in this study should be addressed through the development of comprehensive services and supports that meet the psychosocial, legal, and socioeconomic needs of parents with psychiatric disabilities and their children. Future research is also warranted.