scispace - formally typeset
Search or ask a question

Showing papers in "The American University law review in 2012"


Journal Article
Susan Crile1
TL;DR: This paper argued that states' enforcement of criminal prostitution laws against minors frustrates the TVPA's purposes with regard to prostituted minors, contributing to misidentification of victims, and discouraging prostittuted minors from cooperating with law enforcement, thereby impeding federal efforts to investigate and prosecute trafficking.
Abstract: The doctrine of federal preemption provides a framework for resolving the tension between the treatment of prostituted minors under federal sex trafficking law and criminal prostitution laws in many states. Federal preemption doctrine holds that state laws are preempted if they conflict with a federal law by frustrating its purpose. The federal Trafficking Victims Protection Act (TVPA) defines individuals under age eighteen who engage in commercial sex as per se victims of severe sex trafficking. The TVPA seeks to protect these individuals by treating them as victims and providing them with services. Many states, on the other hand, define prostitution without regard to age and enforce criminal prohibitions against the same category of minors that the federal law seeks to protect. This Comment argues that states' enforcement of criminal prostitution laws against minors frustrates the TVPA's purposes with regard to prostituted minors by (1) treating prostituted minors as offenders, rather than victims, (2) contributing to misidentification of victims, and (3) discouraging prostituted minors from cooperating with law enforcement, thereby impeding federal efforts to investigate and prosecute trafficking. This Comment concludes that the TVPA preempts states' enforcement of criminal prostitution laws against minors."We have created a legal dichotomy in America in which the Federal Government views prostituted children as victims, yet most [s]tates treat them as criminals."1Minors under the age of eighteen are purchased for sex throughout America.2 The full extent of the problem is difficult to measure,3 in part because of the underground nature of prostitution generally,4 but also because prostituted minors5 are commonly subjected to psychological manipulation and abuse that makes them unlikely to self-identify as victims.6 Despite the difficulty of measuring the problem, however, it is certain that the number of minors involved in prostitution is substantial.7 For example, the U.S. Congress has cited research suggesting up to 300,000 American minors are at risk for commercial sexual exploitation.8 An article published by the Department of Justice's (DOJ) Office of Juvenile Justice and Delinquency Prevention further estimates that, for those at-risk individuals who do enter into prostitution, the average age of entrance is thirteen- or fourteen-years-old.9 These young people share characteristics, such as histories of neglect, abuse, or homelessness, that make them vulnerable to exploitation.10 In addition, they almost always have pimps-individuals who target and recruit vulnerable minors and use combinations of feigned affection, psychological coercion, and physical or emotional abuse to dominate their victims and profit from their sexual exploitation.11Federal sex trafficking law and state criminal prostitution laws are in conflict over the treatment of prostituted minors.12 States generally define prostitution without regard to age,13 meaning, for example, that a seventeen-year-old who engages in commercial sex commits prostitution under most state laws.14 In contrast, the federal Trafficking Victims Protection Act of 200015 (TVPA) establishes that any individual under age eighteen who engages in commercial sex is a victim of sex trafficking.16 Thus, the same seventeen-year-old who would be treated by state law as a criminal deserving punishment is viewed by federal law as a victim of sex trafficking entitled to protection.This Comment argues that under the doctrine of federal preemption, the TVPA preempts enforcement of state criminal prostitution laws against minors. Preemption refers to the displacement of state law by federal law pursuant to the Supremacy Clause of the Constitution.17 Preemption can be inferred from the existence of a conflict between federal and state laws; a conflict exists if state law frustrates the purpose of a federal law.18 In this case, the TVPA preempts states' application of criminal prostitution laws to minors because enforcing criminal prostitution laws against minors frustrates the TVPA's objectives of protecting sex trafficking victims and prosecuting traffickers. …

11 citations


Journal Article
TL;DR: Al-Quraishi v. L-3 Services, Inc. and Al Shimari v. CACI International, Inc as mentioned in this paper addressed the ability of foreign citizens to sue government contractors for their actions abroad.
Abstract: INTRODUCTIONThe United States' military actions in Iraq and Afghanistan have been heavily dependent on civilian contractors.1 The reliance on personnel not under the direct control and management of the United States military2 and the presence of contractors in foreign battle zones raise significant questions about how military contractors can be held responsible for their actions abroad. Abuses perpetrated by military contractors abroad are exemplified by several contractors' participation-or complicity-in the torture and abuse of Iraqi detainees at the Abu Ghraib prison and other locations in Iraq.3In September of 2011, a panel of the United States Court of Appeals for the Fourth Circuit decided two related cases addressing the ability of federal courts to review U.S. government contractors' misbehavior in war zones. Al-Quraishi v. L-3 Services, Inc.4 and Al Shimari v. CACI International, Inc.5 directly addressed the ability of foreign citizens to sue government contractors for their actions abroad.6 The panel reached two conclusions in these cases. First, the court held that it had appellate jurisdiction under the collateral order doctrine.7 Second, it held that state tort actions against military contractors are preempted by important federal interests.8 Rehearing the cases en banc, the Fourth Circuit dismissed both appeals, holding that the collateral order doctrine did not confer appellate jurisdiction.9 This Note will argue that the Fourth Circuit panel decisions missed an opportunity to clarify the precise nature of the defense available to military contractors and failed to determine whether contractors can be held liable at all for their actions overseas. The en banc decision correctly clarified that contractor defenses do not rise to the level of immunity from suit, but it did not further define the nature of contractor defenses.10Part I of this Note will present the facts and holdings of L-3 Services and CACI and briefly describe the underlying law. Part II will critique the panel's holdings, argue that the panel conflated the doctrines of sovereign immunity and federal preemption, and detail the procedural and practical consequences of the panel's conflation. Part II will then conclude that preemption analysis is the most appropriate approach to both protecting the federal interests inherent in military actions abroad and the ability of foreign citizens to hold military contractors accountable for their actions.I. BACKGROUNDA. The Cases: Al-Quraishi v. L-3 Services, Inc. and Al Shimari v. CACI International, Inc.Both L-3 Services and CACI were suits filed by Iraqi citizens against American military contractors.11 The plaintiffs in both cases claimed that they were detained by the United States military in Iraq.12 The United States government had hired contractors to provide interrogation and translation services at military detention sites.13 While the Fourth Circuit panel noted in CACI that the contractors were required to comply with U.S. Department of Defense (DOD) interrogation policies and practices,14 the plaintiffs in both L-3 Services facilities involved dangerous stress positions; beatings; assaults; sensory deprivation; food, water, and sleep deprivation; and other abuses that were in direct contravention of DOD policies.15 Despite the factual similarities between these cases, the panel addressed two different legal questions.1. Al-Quraishi v. L-3 Services, Inc. and the court's appellate jurisdiction over appeal from a denied motion to dismissIn L-3 Services, the Fourth Circuit panel addressed whether it had appellate jurisdiction over the district court's denial of the defendant's motion to dismiss.16 Seventy-two Iraqis initiated the litigation in L-3 Services after being detained by the United States in Iraq.17 The plaintiffs alleged that federal government contractors tortured them and other detainees rather than simply providing translation services during interrogations. …

5 citations


Journal Article
TL;DR: A review of current laws and policies that are likely to be found unconstitutional by courts can be found in this article, which also provides social-media policy guidelines that, in contrast, is likely to survive constitutional challenge.
Abstract: Undoubtedly, the sexual abuse of children by authority figures, particularly teachers and coaches, has been an issue of national concern for years. Recently, there have been several high-profile child sexual abuse scandals in the news, such as the ordeal involving Jerry Sandusky, a former Pennsylvania State University football coach, who was convicted of forty-five child sexual abuse counts for sexually abusing ten male children over the course of fifteen years. In an effort to prevent these tragic occurrences, state and school district officials have targeted social media as the culprit.As states and school districts across the nation revisit or implement social-media policies, some take the extreme action of completely banning teachers from using social media to communicate with students. In addition to disadvantaging students in an electronic era, these bans are unconstitutional, running afoul of the First Amendment, because they are overbroad and do not pass intermediate scrutiny.Although states and school districts have substantial leeway in disciplining their employees for online expressions, they cannot implement laws or policies that infringe upon employees' expression that is constitutionally protected by the First Amendment. States and school districts are continuously battling with the issue of how to regulate social-media use by teachers and need guidance in crafting policies. This Comment analyzes current laws and policies that are likely to be found unconstitutional by courts; this Comment also provides social-media policy guidelines that, in contrast, are likely to survive constitutional challenge.INTRODUCTIONWhen Amy Hestir was twelve years old, she was sexually abused by one of her male teachers.1 This abuse lasted nearly a year.2 Over thirty years later, in March of 2011, Hestir recounted her traumatic story to the Missouri General Assembly in order to galvanize support for legislation banning teacher-student communication via any exclusive electronic media, such as social-networking websites.3 The law also contained various other provisions designed to curtail child sexual abuse by teachers.4In her testimony before the Missouri House Education Committee, Hestir depicted how her abuser psychologically controlled her through the use of threats and a pornographic novel that featured a main character named "Amy."5 She also described when the abuse would occur: during her teacher's planning hour, during the time when her teacher would take her home after she babysat for his daughter, and during the summer when she would meet him at church.6 At the time, Hestir did not divulge the matter to any adults because of the shame and fear she felt, but after nine years of silence, she gathered the courage to report the incident and open an investigation.7 Unfortunately, the investigation did not produce results, and Hestir's abuser continued his career in teaching by transferring to a different school district.8Accounts of abuse such as this one are not anomalies; many students around the nation share similar stories. In fact, Missouri, the state where Hestir was abused, is ranked only eleventh in the nation for the number of educators who have lost their licenses due to sexual misconduct.9 States have addressed this issue in various ways. Even though social-networking sites were not yet conceived of when Amy Hestir was in school and sexual abuse by teachers was documented as early as 430 B.C.,10 the Missouri General Assembly believed that banning teacher-student communication via electronic media would prevent sexual abuse.11The Missouri General Assembly passed the bill, with Governor Jay Nixon signing it into law on July 14, 2011.12 The new law, named the "Amy Hestir Student Protection Act," was scheduled to go into effect on August 28, 2011.13 The Missouri State Teachers Association, however, opposed the law and quickly sprung into action, filing a complaint against Governor Nixon for injunctive relief. …

5 citations


Journal Article
TL;DR: In this paper, the authors examine the evolution of four different general doctrines in federal courts jurisprudence that have figured prominently in national security civil suits over the past decade: the availability of Bivens remedies; federal common law defenses to state-law suits against government contractors; qualified immunity; and the political question doctrine.
Abstract: Why have victims of post-September 11 governmental misconduct met with virtually no success thus far in pursuing damages claims arising out of the government's alleged abuses? One explanation is that these cases are nothing more than one piece of a larger puzzle in which fewer and fewer civil plaintiffs have been able to recover in any suit alleging official misconduct. After all, it is a familiar trope that the Supreme Court has shown increasing skepticism in recent years toward civil plaintiffs in damages suits against government officers. Complicating matters, because reasonable minds continue to disagree about the legality of the surveillance, detention, and treatment of terrorism suspects (and a host of other controversial measures) since September 11, different perspectives on the underlying legal questions will necessarily color our view of whether the absence of relief in these cases is a new-or troubling- development.In this Essay, I aim to provide a deeper answer to this question by looking carefully at the evolution of four different general doctrines in federal courts jurisprudence that have figured prominently in national security civil suits over the past decade: the availability of Bivens remedies; federal common law defenses to state-law suits against government contractors; qualified immunity; and the political question doctrine. To determine whether the lack of recovery in post-September 11 civil litigation differs in kind or merely degree from that which is true more generally, I contrast the state of these doctrines in non-national security cases with how the same law has been applied in suits with national security over- or under-tones. As I conclude, closer inspection reveals fairly compelling evidence for the emergence of a new "national security canon," a body of rules unique to national security cases that, at least thus far, all cut against allowing relief in suits that might otherwise be able to proceed to judgment. Absent a change in direction, this trend will have two sets of consequences: First, national security policy will, in most cases, increasingly come to be an area over which the political branches exercise near-plenary control (thereby perpetuating, whether correctly or not, the argument that courts lack the institutional competence to resolve such claims). Second, as such, we may well come to understand the emergence of the national security canon over the past decade as another example of the "normalization of the exception"-the accommodation into existing law of practices and policies typically embraced only by virtue of their exigency and fleeting duration. As the national security canon becomes more deeply ingrained, so too the likelihood that it will expand into contexts other than those in which it has thus far been recognized.INTRODUCTIONAs of May 2012, not a single damages judgment has been awarded in any of the dozens of lawsuits arising out of post-September 11 U.S. counterterrorism policies alleging violations of plaintiffs' individual rights.1 For some, this result simply testifies to the thoughtfulness and care with which the government has conducted the "war on terrorism"; it follows that there is no need for damages if no rights have actually been violated.2 For others, this outcome is a function less of the legality of the government's conduct than the novelty of the measures adopted after September 11-and the corresponding idea that, whether or not the government crossed the line, the law was not "clearly established" such that individual officers should be held liable for whatever transgressions may have occurred.3 Still, others take a more cynical view, seeing in this body of jurisprudence a systematic effort to create a form of functional impunity-a creation of new doctrinal barriers to relief that deny recovery even where extant precedent would otherwise appear to have supported it.4Assessing who has the better of this argument is a difficult endeavor. …

5 citations


Journal Article
TL;DR: The legality of the Healthy Food Incentives Ordinance is analyzed to understand its implications on subsequent legislation aimed at combating childhood obesity and on the progression of public health law.
Abstract: The newest approach to discouraging children's unhealthy eating habits, amidst increasing rates of childhood obesity and other diet-related diseases, seeks to ban something that is not even edible. In 2010, San Francisco enacted the Healthy Food Incentives Ordinance, which prohibits toys in kids' meals if the meals do not meet certain nutritional requirements. Notwithstanding the Ordinance's impact on interstate commerce or potential infringement on companies' commercial speech rights and on parents' rights to determine what their children eat, this Comment argues that the Ordinance does not violate the dormant Commerce Clause, the First Amendment, or substantive due process. The irony is that although the Ordinance likely avoids the constitutional hurdles that hindered earlier measures aimed at childhood obesity, it intrudes on civil liberties more than its predecessors. This Comment analyzes the legality of the Healthy Food Incentives Ordinance to understand its implications on subsequent legislation aimed at combating childhood obesity and on the progression of public health law.

4 citations


Journal Article
TL;DR: For instance, the authors argues that when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics.
Abstract: First Amendment doctrine acknowledges the constructive potential of citizens' criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials' reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools' responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly devalued important messages from young dissenters, this Article explores how to reformulate the doctrinal approaches used to resolve challenges to the suppression of student-critics and urges courts to recalibrate overly deferential assessments of educators' claims that student dissent compromises effective learning.INTRODUCTIONThe many youthful faces among the protesters of the Arab Spring and the Occupy Wall Street encampments exemplify the energizing role a nation's younger generation has played in advancing demands for social change and institutional reform. Youth's challenges to official repression and governments' infidelity to essential values serve as catalytic provocations. However, protests and petitions by America's public school students are too often ignored, squelched, and even punished by teachers and administrators. These reactions reflect a deeply flawed assessment of the constitutional interests at stake when students speak out about perceived problems at school.Even in relatively recent American experience, repression has not been a governmental response reserved for youthful voices of petition and protest.1 However, when children and youth seek protection of such expression, they face particularly formidable obstacles in schools and courts. The hostility to such expressive efforts by the young stems from a misguided unwillingness to see children as citizens and to see schools as invaluable sites of constitutional citizenship practice.Protests at public schools have generated foundational First Amendment precedents.2 By examining controversies arising from students' protests and petitions, this Article seeks to explore the constitutional parameters of children's citizenship and to discern the nature and limits of school officials' authority to restrict students' efforts to seek redress for grievances related to school practices. Such protest and petition activities offer vital citizenship experience for students, but they can also serve as valuable pedagogical opportunities for schools. In addressing the student critic, school officials can deliver a practical translation of often purely abstract constitutional values, giving substance to core First Amendment precepts, such as the checking function of dissent within a paradigm of responsive and accountable governance.Regrettably, school officials' reactions to protest and petition activities may often be fueled by concerns about how criticism could compromise their preferred image of infallibility or dislodge a claimed mantle of competence. School officials may try to shield their decisions from student challenge, using whatever explanatory leeway can be found within relevant precedents to justify the suppression or punishment of the student critic. Officials often favor the defensive stratagem of conflating a student's allegation of misused official authority with the incitement of peers to flout the authority of teachers and administrators. Such a conflation conveniently short-circuits sincere engagement with the substance and origin of student dissent, potentially allowing school officials to insulate themselves from needed scrutiny. Even less self-serving school authorities facing the student critic may succumb to the temptation to react dismissively, discounting the speech's potential to spur school improvement and ignoring the educational opportunities such speech presents. …

4 citations


Journal Article
TL;DR: In this paper, a close examination of the case of Syed Fahad Hashmi reveals rights abridgement throughout the legal process (intrusive surveillance, vague material support charges, use of prolonged pre-trial solitary confinement, classified evidence, the use of political activities to demonstrate mindset and intent) and reveals that the federal courts have permitted such rights abrivation, largely abdicating their role as a check on Executive power and imperiling the rights of those being tried in the Article III courts.
Abstract: In the decade since 9/11, much has been written about the "War on Terror" and the lack of justice for people detained at Guantanamo or subjected to rendition and torture in CIA black sites. A central focus of the critique is the unreviewability of Executive branch action toward those detained and tried in military commissions. In those critiques, the federal courts are regularly celebrated for their due process and other rights protections. Yet in the past ten years, there has been little scrutiny of the hundreds of terrorism cases tried in the Article III courts and the state of the rights of people accused of terrrorism-related offenses in the federal system. The deference to assertions of national security that degraded protections for detainees at Guantanamo has similarly degraded the protections for Muslims facing terrorism charges in the federal courts. This Essay provides a close examination of one of those cases-that of Syed Fahad Hashmi-and reveals rights abridgement throughout the legal process (intrusive surveillance, vague material support charges, the use of prolonged pre-trial solitary confinement, classified evidence, the use of political activities to demonstrate mindset and intent). The federal courts have permitted such rights abridgements, largely abdicating their role as a check on Executive power and imperiling the rights of those being tried in the Article III courts.INTRODUCTIONI must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice.-Martin Luther King, Letter From Birmingham Jail, 19631In the fall of 2010, in taxicabs across New York City, Human Rights Watch premiered a new campaign entitled, "Try the Alleged 9/11 Planners in New York: It Happened Here."2 An array of New Yorkers looked directly at the camera and spoke about why Guantanamo Bay prison detainees should be tried in the federal courts in New York, invoking the principles of fairness, justice, and closure.3 Midway through the video, a text box appeared, reading "[f]ederal courts have convicted more than 400 people on terrorism-related charges since 9/11."4In the decade since 9/11, much has been written about the "War on Terror" and the rights violations of people detained at Guantanamo, in naval brigs, or subjected to rendition and torture in CIA black sites.5 Much of this criticism has focused on the unreviewable nature of executive branch action due to the government's assertions that constitutional protections do not apply to the detainees and/or the prerogative of the executive in matters of national security during times of "war."6 Executive branch officials have used these grounds to deny detainees the opportunity to confront their accusers, have access to counsel, see evidence against them, and invoke the writ of habeas corpus to contest their indefinite detentions without charge.7In challenging these detentions, advocates for the detainees focused their efforts on federal court habeas review, and more recently, as prosecutions of Guantanamo detainees have resumed, many commentators have invoked the federal courts as exemplars of justice, contrasting them to military commissions.8 Because of the prioritization of advocacy around Guantanamo detainees, many human rights groups and advocates have been reluctant to scrutinize and to speak out against the practices used in those courts for fear of giving ammunition to conservatives and contradicting their own message to bring the Guantanamo detainees into the system. The federal courts are thus often referenced as the "gold standard" of American justice and held up to show what due process looks like when it is done right. …

3 citations


Journal Article
TL;DR: In this article, the American Law Institute (ALI) concluded that the battery law is not the intent to cause a harmful or offensive contact, but rather the intention to cause an unpermitted contact.
Abstract: Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant's conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery, stemming in part from the completion of various stages of the Restatement (Third) of Torts and the current position of the ALI that it will not attempt a restatement of the non-economic intentional torts that were addressed in great detail in the Restatement (Second) on the grounds that intentional tort doctrine is clear and that the Restatement (Second) provisions have been widely adopted.This Article joins the work of several torts scholars who have recently questioned the clarity of intentional tort law doctrine. These scholars have focused on the ambiguity of the Restatement (Second) provisions with respect to the intent to cause a harmful or offensive bodily contact, that is, whether these provisions require both intent to cause bodily contact and intent to cause harm or offense (dual intent) or whether it is sufficient that the defendant intends a bodily contact that turns out to be either harmful or offensive (single intent). Some of these scholars have also suggested that the essence of battery is not the intent to cause a harmful or offensive contact, but rather the intent to cause an unpermitted contact.This Article demonstrates that the current confusion and controversy over battery law doctrine is far more extensive than even these recent torts scholars have demonstrated. It extends beyond the element of intent and includes uncertainty concerning the role of the plaintiff's lack of actual or apparent consent-that is, whether consent is an affirmative defense or whether lack of consent is an element of the plaintiff's prima facie case-and the relationship between intent and lack of consent. Moreover, this confusion and controversy is reflected not only in modern battery court opinions, but also in the cursory and contradictory treatment given to battery law in most torts casebooks and treatises. Finally, despite the ALI's assumption that the Restatement (Second) provisions have been widely adopted, there are many jurisdictions where courts are formulating battery doctrine using terminology that departs significantly from the Restatement (Second) provisions.INTRODUCTIONMuch of contemporary torts law scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant's conduct was negligent.1 Comparatively little scholarship has explored the appropriate distinction between the intentional torts, such as battery, assault, and false imprisonment, and the non-intentional torts, such as the negligent infliction of physical or emotional harm and strict liability for defective products and abnormally dangerous activities. Recently, however, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery. These inquiries stem, at least in part, from the completion of various stages of the Restatement (Third) of Torts2 (Third Restatement) and the current position of the American Law Institute (ALI) that it will not attempt a new Restatement of the non-economic intentional torts.3 The ALI's position rests on the ground that these torts were addressed in great detail in the Restatement (Second) of Torts4 (Second Restatement) and that the Second Restatement "remains largely authoritative in explaining the details of the specific [intentional] torts . …

2 citations


Journal Article
TL;DR: In this paper, the Second Amendment right to keep and bear arms for self-defense outside the home has been examined in the context of self-protection in the public sphere, and it has been shown that the right to carry a firearm in public does not even fall within the scope of the second amendment.
Abstract: This Article sheds light on a major constitutional question opened up by the United States Supreme Court's landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago: Does the Second Amendment "right to bear arms" include a right to carry a handgun for self-defense outside the home? Some courts and commentators have declared that Heller held that the Second Amendment right is limited to the home, so that restrictions on handgun carrying do not even fall within the scope of the Second Amendment. Others assert that the potential applicability of the right to bear arms outside the home is simply a "vast terra incognita," devoid of guidance, into which lower courts should hesitate to venture for prudential reasons.These courts are mistaken about Heller and mistaken about the absence of guidance. As I show, Heller and McDonald have two holdings, not just one: they adopted a particular interpretation of the right to bear arms, then applied that understanding to the bans on handgun possession that were before them. The right that Heller and McDonald recognized-the individual "right to . . . bear arms for the purpose of self-defense"-has a long tradition in the state courts, and that tradition supports a right to carry outside the home. Post-Heller lower court decisions that confine the scope of the Second Amendment right to the walls of the house have reached those results, not by addressing and distinguishing this large and relevant body of precedent, but by ignoring it.The centerpiece of the Article is an analysis of the past 190 years of state court constitutional precedent on arms carrying. I show that there have been two different traditions of the individual right to bear arms: a defense-based right, under which courts construe the right to bear arms as protecting a meaningful right to carry handguns for self-protection, and a "hybrid" or civic-based right, under which gun possession is protected, but courts do not view self-defense as a central purpose of the right, and therefore uphold broader restrictions on weapons carrying. I show that Heller and McDonald embraced the first tradition and rejected the second. Once lower courts and scholars look to the correct line of precedent, they will find powerful arguments that the Second Amendment's scope includes a right of individuals to carry handguns in public for self-defense.Ab esse ad posse valet consequentia.1INTRODUCTIONIf the decisions in District of Columbia v. Heller2 and McDonald v. City of Chicago3 have established the Second Amendment right to keep and bear arms as a "part of ordinary constitutional law,"4 then we should expect important issues of Second Amendment interpretation and application to become increasingly amenable to resolution using the tools of ordinary constitutional reasoning. The purpose of this Article is to show how far that expectation can be met with respect to the most significant Second Amendment issue currently facing state and lower federal courts: whether, and to what extent, the Second Amendment5 right to "bear arms for the purpose of self-defense"6 includes a right to carry handguns (and perhaps other common defensive weapons) outside the home.7 I will apply familiar tools of doctrinal and historical analysis8 to this question, and will argue that the Second Amendment right to bear arms should be understood to protect a presumptive right to carry a handgun outside the home for self-defense. This right requires that most individuals be able, if they so choose, to obtain authority to carry a loaded defensive handgun legally at most times and in most places. The right is also subject to some forms of regulation. Important examples are likely to include the requirement of a carry permit or license (if issued on an objective, nondiscretionary basis), and regulations of the mode of carry, such as requirements that handguns must be carried openly, or that they must be carried concealed.These conclusions are contrary to the decisions of some post-Heller lower courts that have rendered restrictive opinions holding that the Second Amendment confers no protection outside the walls of an individual's home, largely because the particular laws challenged and struck down by the Supreme Court dealt with the possession and defensive use of handguns in the home. …

2 citations


Journal Article
TL;DR: In this paper, a "complex adaptive system" model is used to explore how decentralized systems balance their need for overall order and stability with demands for evolution and change, and the importance of generating different answers to difficult interpretive questions rather than a uniform approach.
Abstract: While federal circuit courts play an essential role in defining what the Constitution means, one would never know it from looking at most constitutional scholarship. The bulk of constitutional theory sees judge-made constitutional law through a distorted lens, one that focuses solely on the Supreme Court with virtually no attention paid to other parts of the judicial hierarchy. On the rare occasions where circuit courts appear on the radar screen, they are treated either as megaphones for communicating the Supreme Court's directives or as tools for implementing the theorist's own interpretive agenda. Both approaches would homogenize the way circuit courts make choices about constitutional meaning, carving independent federal judges into cookie-cutter replicas of either the theorist or the Supreme Court.These "one size fits all" theories fail to see circuit courts for what they are-parts of an interpretive system where constitutional law is made from both the top-down and from the bottom-up. This partially decentralized structure positions circuit courts to help the system adapt to changes in its environment and ensure its long-term stability and survival. Rather than focusing on their "inferior" position in the judicial hierarchy or the "best" available theory of constitutional interpretation, circuit courts should use their interpretive discretion in constitutional cases in ways that serve this adaptive function.This Article uses a "complex adaptive system" model to explore how decentralized systems balance their need for overall order and stability with demands for evolution and change. These systems rely on two factors: variation (the degree to which the system's components differ from one another) and interdependence (the degree to which the system's components affect one another) to manage those competing forces. When applied to circuit courts, a complex adaptive system model shows the importance of generating different answers to difficult interpretive questions rather than a uniform approach, and developing mechanisms for facilitating interpretive communication across circuits. In turn, it offers the promise of aligning constitutional theory with the way constitutional law is actually made.INTRODUCTIONMost accounts of constitutional lawmaking begin and end with the United States Supreme Court. The overwhelming majority of textbooks, courses, treatises, and scholarship treat the Court as the sole driver of constitutional change, embedding its directives in written opinions that are then dutifully enforced by its inferior minions.As many others have pointed out, this Court-centered account is, at best, radically incomplete. Among other things, it ignores the impact of non-judicial actors on the evolution of constitutional norms, including Congress,1 the President,2 social movements,3 and public opinion.4But this obsessive academic focus on the Supreme Court also leaves out another set of critical constitutional actors: lower federal court judges-the forgotten stepchildren of constitutional theory.5 These judges are more than simple megaphones that shout the Court's directives to the masses; they are active players in the creation of constitutional meaning. They are capable of stopping a "constitutional revolution" dead in its tracks, making choices between competing doctrinal strands, taking subtle actions to undermine established doctrine, proposing new constitutional rules to address novel situations, acting in willful defiance of existing Court precedent, or dutifully enforcing established rules.Consider the following examples, each of which highlights the role of lower federal courts in determining what the Constitution means:* Commerce Clause. Despite multiple indications of the Supreme Court's willingness to curtail Congress' power to pass legislation under the Commerce Clause,6 lower federal courts have steadfastly declined to follow the Court's invitation to impose meaningful constraints. …

2 citations


Journal Article
TL;DR: This Comment contends that the contract- and agency-based interpretations implicate constitutional vagueness concerns, and the code-based approach does not sufficiently address "insider" misuse of information in the context of mobile application data privacy.
Abstract: The Computer Fraud and Abuse Act (CFAA) broadly criminalizes unauthorized access to computers and digital information, but how far should these federal prohibitions reach into the mobile data space? As smartphones and mobile applications continually redefine the digital landscape, attempts to apply the decades-old anti-hacking statute in this new territory have created potentially disturbing precedent.Courts and critics have struggled to interpret the arguably vague and ambiguous provisions of the CFAA and have turned to contract law, agency law, and computer science for guidance. This Comment contends that the contract- and agency-based interpretations implicate constitutional vagueness concerns, and the code-based approach does not sufficiently address "insider" misuse of information. In the context of mobile application data privacy, the shortcomings of current interpretations necessitate a narrower view of unauthorized access. By limiting liability to only traditional notions of hacking and serious misuse of information, the CFAA can better serve its original and primary purpose: punishing criminal computer hackers and those who abuse legitimate access rights."I think there is a world market for maybe five computers."-Thomas Watson, Chairman of IBM, 1943INTRODUCTIONCell phones are ubiquitous.1 As handheld devices become increasingly affordable and network service providers continue to expand cellular and data bandwidth, advanced mobile devices, or smartphones, have become similarly widespread.2 According to one recent study by the Pew Research Center, eighty-eight percent of Americans own some kind of cell phone, while forty-six percent of Americans own a smartphone.3 One of the most common and distinctive features of today's smartphones is mobile applications, or "apps." Apple's often-quoted and parodied advertising slogan, "there's an app for that," seemingly encapsulates the current panoply of apps across numerous genres available to smartphone users.4 With the meteoric rise of smartphones and app usage over the last few years,5 concerns over data privacy in the mobile space have garnered similar attention from legislators,6 regulators,7 and the general public.8Despite increasing legislative and media attention on mobile data privacy, many app developers have not adopted self-regulatory measures to protect user privacy.9 A recent Wall Street Journal investigation of the 101 most popular mobile apps on the market revealed that forty-five did not include privacy policies of any kind.10 Moreover, fifty-six apps transmitted the unique device identification (UDID), a serial-like number that can be linked to other user data,11 to third-party companies without the users' awareness or consent.12 Amidst these growing concerns over protecting users' information, both law enforcement and private citizens have looked for new ways to bring their concerns before the judiciary.13 Some of these novel approaches, however, may push the envelope too far.App users alleging privacy infringement have recently sought redress under the Computer Fraud and Abuse Act14 (CFAA), a federal criminal statute originally designed to combat "juvenile computer hacker" attacks against the federal government's computers.15 Despite the statute's narrow origin, the CFAA now broadly criminalizes and permits private civil actions against anyone who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . (C) information from any protected computer."16 Typical criminal and civil cases under the CFAA involve traditional notions of hacking government computers,17 stealing trade secrets to establish competing businesses,18 or large- scale data theftvia malicious code or "botnets."19 Law enforcement20 and classes of app users,21 however, now argue that app developers and mobile advertisers can be liable under the CFAA when an app merely obtains information from the user's smartphone for targeted advertisements and marketing analytics. …

Journal Article
TL;DR: In this paper, the authors argue that society has a duty to protect the most vulnerable active criminal informants from the substantial risks inherent in their recruitment and cooperation and propose safeguards to protect their safety and autonomy.
Abstract: Informants are valued law enforcement tools, and active criminal informants-criminals who maintain their illicit connections and feed evidence to the police in exchange for leniency-are the most prized of all. Yet society does little to protect active criminal informants from the substantial risks inherent in their recruitment and cooperation. As I have explored elsewhere, society's apathy toward these informants is a result of distaste with their disloyalty and a concern that protecting them will undermine law enforcement effectiveness. This Article takes a different tack, however, building on existing scholarship on vulnerability and paternalism to argue that society has a duty to protect some vulnerable informant interests. In particular, I assess informant vulnerabilities against accepted societal norms to determine which informants deserve greatest protection and balance informant autonomy interests against informant interests in avoiding harm.Against this backdrop, I propose safeguards to protect the vulnerable safety and autonomy interests of active criminal informants that most deserve society's protection while minimally interfering with law enforcement effectiveness. The proposals include: requiring court approval for the use of particularly vulnerable active informants and prosecutorial consent for the use of all others; providing training for informants and law enforcement agents in minimizing the risks of harm from cooperation; and folding informants into existing workers' compensation schemes.INTRODUCTIONInformants are critical law enforcement tools,1 and the active informant, i.e., one who will continue to acquire information for the police while maintaining her criminal connections, is the "brass ring" for an agent.2 Her continuing connections to the criminal underworld allow for a number of benefits to law enforcement, including the efficient and effective infiltration of criminal organizations and the collection of damning evidence against them, all at a diminished cost to law enforcement.3 But despite their importance, society treats informants generally, and criminal informants specifically,4 like red-headed stepchildren.5 Active criminal informants are vulnerable to substantial physical, social, and moral harm,6 yet society does little to ensure their safety.7 Moreover, informant recruitment is inherently coercive, and there are no safeguards to ensure that informants agree voluntarily to cooperate.8 Finally, many active criminal informants possess individual characteristics, such as youth, mental illness, and drug addiction, that make them particularly vulnerable to coercion and other harm,9 but few jurisdictions impose any restrictions on who the police may recruit to cooperate.10Why would society fail to protect such valuable law enforcement assets? First, informants are treated poorly because, to put it bluntly, society dislikes them.11 By assisting the police in apprehending their associates and friends, informants commit the egregious sin of betrayal.12 The resulting disdain is heightened with respect to criminal informants because they are criminals who betray others for the purely selfish purpose of obtaining leniency.13 Second, though active criminal informants are valuable to police, they are often fungible.14 Though the criminal connections of the low-level criminals who frequently become informants are useful, many others typically share these criminal connections.15 Moreover, the benefits of cooperating with the police are substantial enough to entice a continuous stream of criminals to cooperate, notwithstanding the risks.16Though society's disdain for informants is understandable, the failure to protect them is unjustified. Society has a widely-accepted obligation to protect its most vulnerable members,17 and informants are often quite vulnerable.18 This duty is enhanced when an individual's vulnerabilities are the result of her engagement in socially-beneficial activities; the active criminal informant's cooperation falls into that category. …

Journal Article
TL;DR: In 2011, the United States Court of Appeals for the Federal Circuit issued only twenty-two precedential opinions in this area, seven of which were in the "non-mainstream" context of Winstar and spent nuclear fuel (SNF) litigation.
Abstract: INTRODUCTIONOver the past year, the United States Court of Appeals for the Federal Circuit issued a relatively small body of new precedential opinions in the field of government contracts. Indeed, during 2011, the court issued only twenty-two precedential opinions in this area, seven of which were in the "non-mainstream" context of Winstar and spent nuclear fuel (SNF) litigation.1 While it is not possible to draw many broad conclusions from the relatively small number of remaining decisions, there were four main developments that likely will be of interest to practitioners in the field.First, the number of bid protest decisions published by the Federal Circuit in 2011 continued to dwindle as compared to recent years. In the past year, the Federal Circuit published only two bid protest decisions, Allied Technology Group, Inc. v. United States2 and Turner Construction Co. v. United States (Turner III).3 In comparison, in 2010, the Federal Circuit published three bid protest decisions,4 and, in 2009, it published seven bid protest decisions.5 This trend is consistent with that of the Comptroller General, where the surge in the number of bid protests filed annually between 2007 and 2010 flattened in 2011.6 The reduction in bid protest decisions by the Federal Circuit may be a function of the Government's recent record of successfully defending its procurement decisions before the Court of Federal Claims (the COFC or Claims Court) and in the Federal Circuit. Indeed, of the ten bid protest decisions issued by the Federal Circuit in 2009 and 2010, the Federal Circuit's disposition favored the Government in all but one of these cases.7In keeping with this trend, both of the Federal Circuit's 2011 bid protest decisions favored the Government. Both Allied and Turner III involved proceedings that commenced at the COFC following an earlier bid protest before the Government Accountability Office (GAO).8 In Allied, the COFC agreed with the decision of the GAO, which denied the earlier bid protest, and the Federal Circuit affirmed.9 Conversely, in Turner III, both the COFC and the Federal Circuit effectively overruled the GAO's earlier decision by ruling that it was unreasonable for the Government to have followed the GAO's recommendations sustaining the original protest.10 Given the deference the COFC and Federal Circuit usually give to GAO recommendations,11 this outcome is unusual, and it seems unlikely that Turner III will usher in a new era of Federal Circuit reversals of the GAO.12Second, 2011 saw an unusually large number of cases addressing the jurisdiction of the Federal Circuit, the COFC, and the Boards of Contract Appeals (the Boards). In the majority of these cases, the Federal Circuit took a broad view of the respective jurisdictions of these tribunals over government contract disputes.13 For example, in Slattery v. United States,14 the Federal Circuit, in an en banc decision, held that the Tucker Act15 grants the COFC jurisdiction to entertain suits against a non-appropriated fund instrumentality (NAFI), the Federal Deposit Insurance Corporation (FDIC), and expressly disavowed all of the circuit's prior case law to the contrary.16 In doing so, the Federal Circuit explained that, under the Tucker Act, jurisdiction is "not [based on] how the government entity is funded or its obligations met, but [on] whether the government entity was acting on behalf of the government."17 In Todd Construction, L.P. v. United States,18 the Federal Circuit took a similarly broad view of its jurisdiction; the Todd Construction court held that the COFC has the authority, pursuant to the Tucker Act and the Contract Disputes Act (CDA),19 to hear challenges to agency-issued performance evaluations that are mandated by the Federal Acquisition Regulation (FAR).20 In Holmes v. United States,21 the Federal Circuit settled a longstanding split among the decisions of the COFC as well as the other circuit courts of appeals regarding whether the COFC has jurisdiction under the Tucker Act to hear claims for an alleged breach of a Title VII22 settlement agreement. …

Journal Article
TL;DR: In this article, the authors argue that sending federal disputes to non-Article III arbitrators under the Federal Arbitration Act (FAA) is unconstitutional and that the better approach is simply to acknowledge the fundamental inconsistency of the FAA with Article III while recognizing that parties may waive their constitutional right to an Article III forum.
Abstract: Arbitrators determine facts and apply law to those facts to bindingly resolve disputes between two or more parties, a task normally reserved for judges. The Federal Arbitration Act (FAA) makes agreements to arbitrate disputes enforceable, including disputes that would normally be heard by an Article III judge, such as those arising under federal law or between parties of diverse citizenship. Accordingly, disputes subject to an arbitration agreement brought before a federal court for adjudication must instead, pursuant to the FAA, be resolved by an arbitrator. Yet, while Article III ostensibly mandates that lifetenured and salary-protected judges decide such disputes, arbitrators-selected and compensated by one or more of the parties-enjoy neither protection. A literal reading of Article III thus suggests that sending federal disputes to non- Article III arbitrators under the FAA is unconstitutional. Although courts and scholars have roundly rejected Article III literalism and have adopted various theories justifying non-Article III adjudication of Article III disputes, whether the FAA is consistent with Article III has received little analysis. This Article addresses that gap by applying the leading judicial and scholarly theories of non-Article III adjudication to the FAA, ultimately determining that none of them justify arbitration. While a legislative change could remedy the tension between Article III and the FAA, this Article suggests that the better approach is simply to acknowledge the fundamental inconsistency of the FAA with Article III while recognizing that parties may waive their constitutional right to an Article III forum. Given that arbitration is a waiver of Article III rights, however, this Article concludes that consent to arbitration must be determined under the standards used to determine waiver of constitutional rights generally, a fundamental shiftfrom current FAA jurisprudence.INTRODUCTIONImagine a typical employment discrimination case in which an employee files suit in federal court alleging that she has been discriminated against on the basis of her race or gender in violation of federal anti-discrimination statutes. The employer responds by pointing to an arbitration clause in an employment agreement or employee handbook stating that any disputes between the employee and employer will be resolved by binding arbitration. Under the Federal Arbitration Act1 (FAA), the court must dismiss or stay the litigation, and order the parties to arbitrate the claim pursuant to the arbitration agreement.2 While the widespread use of predispute arbitration agreements3 and the Supreme Court's consistent endorsement of them4 may render this scenario common, something quite remarkable is occurring: a dispute arising under federal law and brought by one of the parties to an Article III court for adjudication has been sent elsewhere-as required by an act of Congress-for resolution by one or more arbitrators who are not federal judges subject to Article III's salary and tenure protections. Indeed, the arbitrator may be selected and compensated by the employer, one of the parties to the dispute.5 This raises the question of whether the FAA is consistent with Article III's ostensible assignment of the task of resolving the dispute to the federal judiciary.Article III of the Constitution vests the judicial power of the United States in the Supreme Court and whatever lower federal courts Congress decides to establish.6 Although not defined in the Constitution, judicial power can generally be understood as encompassing the power to bindingly resolve a controversy between two or more disputants by determining facts and applying the law to those facts.7 Article III extends this power to certain specified cases and controversies, including, among others, cases arising under federal law and controversies between citizens of different states.8 Importantly, Article III mandates that this power be exercised by judges enjoying life tenure and salary protection. …

Journal Article
TL;DR: TianRui Group Co. v. International Trade Commission as mentioned in this paper was the first case in which the U.S. Court of Appeals for the Federal Circuit allowed the ITC authority under Section 337 of the Tariff Act to investigate conduct that amounted to unlawful misappropriation of trade secrets that occurred entirely in China.
Abstract: INTRODUCTIONIn 2007, one journalist, Dirk Lammers, undertook a seemingly innocuous task: to avoid anything "Made in China" for just one week.1 He was not the first to undertake such a challenge in consumerism. Others before him declared a boycott on Chinese products for an entire year,2 acting either out of concern for safety regarding allegations of Chinese food contamination and faulty assembly-line production of tires and toys,3 or simply reacting to the realization that everything they owned-or close to it-was Chinese.4 Lammers wanted to see if a boycott on Chinese goods was even feasible-whether an American consumer who wanted to buy strictly American products could succeed.5 In a word, the answer was no. Lammers, like those before him, failed.6 Sneakers, tennis rackets, toothpaste, and obscure ingredients in most food staples are all "Made in China."7 This ubiquitous phrase is here to stay and will continue to represent a formidable competitor in the American market because it signals products that are cheaper and virtually indistinguishable from their American or European prototypes.The results of Lammers' experiment reflect the larger economic reality that the United States has increased its imports from China more than two hundred percent since 2001.8 Federal courts have responded to this changing dynamic in the area of trade secrets with jurisprudence that carries serious implications regarding extraterritorial jurisdiction and international trade law. Facts in cases involving trade secret misappropriation are generally similar: inventor-company develops a new process for the production of widgets, and then competitor-company hires away inventorcompany's employees and steals the process.9 The question in these cases usually turns on whether all the elements of a trade secret cause of action are met, and jurisdictional issues are rarely determinative.10 The facts are more complicated, however, when the competitorcompany is a foreign corporation, and the misappropriation occurs entirely abroad. In a recent case, the United States Court of Appeals for the Federal Circuit grappled with this very issue. In TianRui Group Co. v. International Trade Commission,11 the Federal Circuit affirmed the International Trade Commission's authority under section 337 of the TariffAct of 193012 to investigate conduct that allegedly amounted to unlawful misappropriation of trade secrets that occurred entirely in China.13 This decision complicates Supreme Court precedent on the issue of extraterritorial jurisdiction and stretches a key element of a section 337 case beyond reasonable limits.This Note asserts that the Federal Circuit inappropriately expanded its jurisdiction in TianRui for two main reasons. First, an established presumption that U.S. laws do not apply extraterritorially should have prevented jurisdiction because the conduct in this case occurred entirely outside of the United States.14 Second, section 337 requires that the unfair act threaten to destroy or substantially injure an industry in the United States.15 The actions in TianRui cannot satisfy this requirement because there can be no domestic industry where a United States inventor no longer employs the misappropriated process in its production of widgets.Part I of this Note will provide background about the elements of a trade secret claim and a section 337 cause of action. Part I will then introduce TianRui and provide a description of the facts of the case, its procedural posture, and the major holdings of the Federal Circuit. Part II of this Note will critique the Federal Circuit's reasoning and argue that TianRui was incorrectly decided because it contradicted Supreme Court precedent regarding extraterritoriality and compromised the domestic industry requirement of a section 337 claim under the TariffAct of 1930.I. BACKGROUNDA. Elements of a Trade Secret and of a Section 337 CaseIn general, there are two approaches to determining whether a plaintiffpossesses a trade secret. …

Journal Article
TL;DR: In this paper, the authors argue that conditioning § 216(b) collective actions on certification motions proving commonality is incorrect, and they point out that § 216b is not an opt-in version of Rule 23; it is a liberalized form of simple Rule 20 joinder, which permits joint suit whenever claims share one common issue and address related events.
Abstract: Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases-mainly wage claims but also age discrimination and gender equal pay claims-29 U.S.C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving strict commonality among members.This Article argues that conditioning § 216(b) collective actions on certification motions proving commonality is incorrect. Section 216(b) is not an opt-in version of Rule 23; it is a liberalized form of simple Rule 20 joinder, which permits joint suit whenever claims share one common issue and address related events. No text authorizes any § 216(b) certification inquiry, nor is judicial gatekeeping justified by economic logic: Rule 23 classes present principal-agent and asymmetric information problems because lead plaintiffs may inadequately represent unengaged members, but all § 216(b) collective actions members are full plaintiffs with individual claims, obviating the need for judicial scrutiny.Wage rights cases commonly are high-impact challenges to entire industry pay practices, seeking millions in unpaid wages for thousands of workers. Especially for low-wage workers, disallowing collective actions ends the claims; individual suits are cost-prohibitive. Even when collective actions proceed, certification motions yield cost and delay, thwarting claims and deterring attorneys.Courts should presumptively allow collective actions whenever workers for the same employer press the same statutory claims. Defendants should bear the burden of challenging collective actions in a Rule 21 misjoinder or Rule 12 dismissal motion. This Article provides two explanations for such pervasive judicial error. In a complex, once-obscure field, courts heavily relied upon early precedent that proved incorrect, yielding path-dependent "lock-in" of bad law. Less charitably, courts' mishandling of collective actions is just another example of federal courts erecting procedural hurdles to rights-vindicating litigation.INTRODUCTIONWal-Mart Stores, Inc. v. Dukes1 heightened the degree of "commonality"2 required in a class action and thereby rejected a nationwide sex discrimination class action.3 Because of a decades-old misapplication of class action law, the Supreme Court's decision in Wal-Mart Stores may undercut not only class actions, but also the procedurally distinct "collective actions" that let masses of workers sue for unpaid wages.Plaintiffs with similar claims need not bring a class action, of course; joinder rules let them just file one joint complaint.4 But joinder becomes infeasible with too many plaintiffs, so a few named plaintiffs can file a class action for a large group. Federal Rule of Civil Procedure 23 compels class action plaintiffs to file a motion for "class certification," applying the seven-part test of Rule 23(a)-(b);5 a certified class automatically includes all within the class definition, with no need for each individual to join affirmatively.6Rule 23, however, is trumped by the special procedure established in 29 U.S.C. § 216(b) for certain employment claims7-mainly for unpaid minimum or overtime wages, but also for age discrimination and gender wage discrimination.8 For those claims, § 216(b) authorizes not automatic-inclusion class actions, but opt-in collective actions: "No employee shall be a party" without filing a "consent in writing" and being "similarly situated" to the others.9While the § 216(b) "similarly situated" language would seem to demand less than the substantial commonality of Rule 23, courts subject § 216(b) collective actions to rules largely paralleling Rule 23. …

Journal Article
TL;DR: In this article, the authors argue that the Mobile-Sierra doctrine, as interpreted recently in Morgan Stanley Capital Group, Inc. v. Public Utility District No. 1, departs from both the statutory intent of the Federal Power Act and the original cases from which the doctrine derived its name.
Abstract: Emerging from two Supreme Court opinions decided in the 1950s, the Mobile- Sierra doctrine has evolved to stand for a principle of contract sanctity in public utility rate setting. The courts have largely come to the conclusion that the Federal Energy Regulatory Commission (the Commission) has less authority to modify rates set by contract, as compared to unilaterally-filed tariff rates, when the contract is the result of arm's-length negotiations between sophisticated parties of equal bargaining power, unless the contract indicates otherwise. Only in "extraordinary circumstances," the Court has found, may the Commission step in to modify any such "Mobile-Sierra contract."This Comment argues that the Mobile-Sierra doctrine, as interpreted recently in Morgan Stanley Capital Group, Inc. v. Public Utility District No. 1, departs from both the statutory intent of the Federal Power Act and the original cases from which the doctrine derived its name. The Federal Power Act does not contemplate imposing any extraordinary barriers to Commission modification of contract rates. Similarly, the two cases from which the doctrine derived its name, United Gas Pipe Line Co. v. Mobile Gas Service Corp. and Federal Power Commission v. Sierra Pacific Power Co., sought to protect the public interest by restraining a utility's ability to unilaterally raise prices set in a contract, but they did not seek to limit the Commission's authority to modify contracts generally. By further limiting the Commission's authority to modify contracts, Morgan Stanley has encroached on the Commission's ability to fulfill its statutory obligation to protect the public interest.INTRODUCTION"[I]t doesn't matter what you crazy people in California do, because I got smart guys out there who can always figure out how to make money."1-Kenneth Lay, former CEO of Enron Corporation, speaking to David Freeman, then-Chairman of the California Power AuthorityOn several occasions during 2000 and 2001, the lights went out in California, affecting businesses and everyday life and raising public ire.2 In Irvine, for example, computer-operated traffic lights went out in May 2001, turning freeways into parking lots and bringing much of life there to a halt.3 A confluence of factors had caused rolling blackouts4 in the region,5 as prices for power rose to extraordinarily high levels at both wholesale and retail levels.6 Enron Corporation- a major player in the newly-deregulated wholesale power markets and a behemoth once respected for its wealth and competence- subsequently went into bankruptcy amid reports of scandal.7In the midst of this environment, and at the urging of the Federal Energy Regulatory Commission (Commission),8 several utilities attempted to hedge the escalating prices in the wholesale electric power spot market by entering into contractual agreements with power sellers.9 Seeking relief from the rising prices, these utilities eventually agreed to buy power through long-term contracts at rates that dwarfed traditional levels, but were still considerably lower than the spot market prices during the crisis.10After the crisis passed and prices approached historical levels, three western utilities asked the Commission to modify the long-term power contracts they had entered into during the crisis.11 The utilities argued that the prices and terms in their contracts were unlawful as a result of the crisis conditions in western power markets at the time they executed their contracts.12 Relying on two cases from the 1950s, which together have formed what courts and other commentators refer to as the "Mobile-Sierra doctrine," the Supreme Court held in Morgan Stanley Capital Group Inc. v. Public Utility District No. 113 that the Commission could relieve utilities of their contractual purchase obligations only after a finding of "unequivocal public necessity" or "extraordinary circumstances," regardless of the type of contract at issue14 or the underlying market conditions. …