Supreme Court News Article
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Recommended Citation
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.
2020
Administrative Law: Cases and Materials Book
Date of Publication:
Recommended Citation
Louis J. Virelli et al., Administrative Law: Cases and Materials (8th ed., 2020)Clicking on the button will copy the full recommended citation.
Administrative Law: Cases and Materials: Teacher’s Manual Book
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Recommended Citation
Louis J. Virelli et al., Administrative Law: Cases and Materials: Teacher’s Manual (8th ed., 2020)Clicking on the button will copy the full recommended citation.
Florida Real Property Law (revisions and updates) Book
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Darryl Wilson, Florida Real Property Law (revisions and updates) (Florida Bar Continuing Legal Education, 2020)Clicking on the button will copy the full recommended citation.
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.
Reading American Indian Law: Foundational Principles Book
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Recommended Citation
Grant Christensen and Melissa Tatum, Reading American Indian Law: Foundational Principles (Cambridge University Press, 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.
Tribal Court Litigation Book Chapter
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Recommended Citation
Grant Christensen et al., Tribal Court Litigation, in Recent Developments in Business and Corporate Litigation (American Bar Association, Business Law Section, 2020)Clicking on the button will copy the full recommended citation.
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.
Adapting the Attorney-Client Interview for Remote Lawyering Book Chapter
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Elizabeth Ippolito Boals, Adapting the Attorney-Client Interview for Remote Lawyering, in Remote Advocacy: A Guide to Survive and Thrive (NITA, 2020)Clicking on the button will copy the full recommended citation.