E. Supp.

Standing Pat in a Post-Kelo World: Preservation of Broad Eminent Domain Power in Kaur v. New York State Development Corp.

Abstract: On June 24, 2010, the New York Court of Appeals in Kaur v. New York State Urban Development Corp. upheld a state taking of private property to expand Columbia University’s campus into the Manhattanville neighborhood of New York City. In doing so, the court reaffirmed precedent holding that the determinations of state agencies vested […]

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Commonwealth v. Runyan: Safe Storage Laws in the Crossfire of Second Amendment Litigation

Abstract: The Massachusetts Supreme Judicial Court’s 2010 decision in Commonwealth v. Runyan upheld a state law requiring firearms to be securely locked when not in the possession of a legally authorized user. The court ruled that the Second Amendment does not apply against the states and that the safe storage law does not infringe upon […]

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The Beast of Undue Burden: Evaluating the Burden on the Physician in Planned Parenthood of the Heartland v. Heineman

Abstract: On July 14, 2010, in Planned Parenthood of the Heartland v. Heineman, the U.S. District Court for the District of Nebraska issued a preliminary injunction halting the implementation of a bill that would have imposed on abortion providers new requirements for obtaining informed consent. The court held that the new, more rigorous informed consent […]

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Guilding the Lilly: The § 112 Written Description Requirement Separate From Enablement

Abstract: On March 22, 2010, the U.S. Court of Appeals for the Federal Circuit, in Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., held that the first paragraph of 35 U.S.C. § 112 contains a written description requirement separate from the enablement requirement. In so doing, the court affirmed recent circuit precedent holding that a […]

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Deference to the Rulemaker, Not to the Rule: The D.C. Circuit’s Enabling Rejection of the SEC’s Fixed Indexed Annuities Rule in American Equity Investment Life Insurance Co. v. SEC

Abstract: On July 12, 2010, the U.S. Court of Appeals for the District of Columbia Circuit, in American Equity Investment Life Insurance Co. v. SEC, vacated the Securities and Exchange Commission’s Rule 151A due to flaws in the SEC’s cost-benefit analysis. Rule 151A aimed to expand the SEC’s oversight to include purportedly “risky” hybrid annuity […]

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Wading Through the “Morass”: The Eleventh Circuit Recognizes a Right to Candidacy in Randall v. Scott

Abstract: On June 30, 2010, the U.S. Court of Appeals for the Eleventh Circuit in Randall v. Scott held that the First Amendment affords protection to an individual based on the mere basis of that individual’s political candidacy. In so doing, the Randall court departed from other federal circuit courts, which had approached the issue […]

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The Need for Sneed: A Loophole in the Armed Career Criminal Act

Abstract: On March 24, 2010, the U.S. Court of Appeals for the Eleventh Circuit, in United States v. Sneed, held that courts may not use police reports to determine if prior offenses occurred on different occasions for the purposes of the Armed Career Criminal Act. In so doing, the court narrowed the class of offenders […]

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Dodging Due Process: How United States v. Dodge Pushes the Limits of Civil Regulation

Abstract: On March 5, 2010, the U.S. Court of Appeals for the Eleventh Circuit in United States v. Dodge held that courts may take a non-categorical approach in determining whether a defendant qualifies as a sex offender under the Sex Offender Registration and Notification Act. Although a non-categorical approach is warranted by accepted standards of […]

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What Do 1.5 Million Wal-Mart Women Have in Common?: Dukes v. Wal-Mart Class Action Certification

Abstract: On April 26, 2010, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc in Dukes v. Wal-Mart, held that Rule 23 commonality and typicality existed among 1.5 million female employees of Wal-Mart claiming gender discrimination in the company’s hiring and promotion practices. This Comment addresses the commonality prong and argues that […]

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Lies, Damn Lies, and White Ink: The Convenient Fiction of Adjudication on the Merits in Murdock v. Castro

Abstract: On June 21, 2010, in Murdoch v. Castro, the U.S. Court of Appeals for the Ninth Circuit held that under the habeas reform provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), state court decisions presumptively adjudicate federal claims on the merits even where no state court has made any mention of the […]

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Deferential Dilemmas: Pinholster v. Ayers and Federal Habeas Claims of Innefective Assistance of Counsel After AEDPA

Abstract: On December 9, 2009, the Ninth Circuit Court of Appeals, sitting en banc, concluded that Scott Lynn Pinholster had received deficient, prejudicial assistance of counsel at the penalty phase of his capital case, vacating an earlier decision by a panel of the Ninth Circuit. The U.S. Supreme Court subsequently granted certiorari to consider whether […]

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Perdomo v. Holder: A Step Forward in Recognizing Gender as a “Particular Social Group” Per Se

Abstract: On July 12, 2010, the Ninth Circuit Court of Appeals, in Perdomo v. Holder, ruled that the Board of Immigration Appeals had erred in finding that an asylum applicant failed to establish membership in a “particular social group” under the Immigration and Nationality Act when she defined the social group as “all Guatemalan women.” […]

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No Longer Playing Nevils Advocate: The Ninth Circuit Constricts Appellate Review for Insufficiency of Evidence Claims

Abstract: On March 19, 2010, the U.S Court of Appeals for the Ninth Circuit in United States v. Nevils held that a reviewing court hearing criminal appeals on the grounds of insufficient evidence must resolve all factual conflicts in favor of the prosecution and ask only if any rational juror could have found the defendant […]

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Shooting Heller in the Foot?: Applying and Misapplying District of Columbia v. Heller‘s “Presumptively Lawful” Dicta in United States v. Skoien

Abstract: On July 13, 2010, an en banc panel of the U.S. Court of Appeals for the Seventh Circuit in the case of United States v. Skoien upheld 18 U.S.C. § 922(g)(9), a federal ban on the possession of firearms by domestic violence misdemeanants, against a Second Amendment challenge. In reaching its holding, the Seventh […]

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Incommensurable Uses: RLUIPA’s Equal Terms Provision and Exclusionary Zoning in River of Life Kingdom Ministries v. Village of Hazel Crest

Abstract: On July 2, 2010, the U.S. Court of Appeals for the Seventh Circuit in River of Life Kingdom Ministries v. Village of Hazel Crest held that the “equal terms” provision of the Religious Land Use and Institutionalized Persons Act requires a comparison of religious and secular land uses with respect to an accepted zoning […]

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The Parent Trap: Constitutional Violations and the Federal Tort Claims Act’s Discretionary Function Exception

Abstract: On June 2, 2010, the U.S. Court of Appeals for the Fifth Circuit sitting en banc in Castro v. United States held that the discretionary function exception to the Federal Tort Claims Act (FTCA) does not subject the United States to liability when a government employee, acting within his discretion, commits a constitutional violation, […]

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Dust in the Wind: Is TVA‘s Permit Shield a Death Knell for Interstate Public Nuisance Claims?

Abstract: On July 26, 2010, the U.S. Court of Appeals for the Fourth Circuit, in North Carolina ex rel. Cooper v. Tennessee Valley Authority, held not only that the Clean Air Act (CAA) preempts state nuisance law, but also that the issuance of a CAA permit makes a public nuisance legally and theoretically impossible. In […]

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Treading Murky Waters: The Third Circuit’s Search for When a Claim Arises in In re Grossman’s, Inc.

Abstract: On June 2, 2010, the U.S. Court of Appeals for the Third Circuit in In re Grossman’s, Inc. held that despite a post-petition manifestation of injury, the tort claims of a woman allegedly exposed to a Chapter Eleven debtor’s asbestos-containing products arose pre-petition. In so holding, the court reasoned that a claim arises when […]

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Silencing Fox: The Chilling Effect of the FCC’s Indecent Speech Policy

Abstract: On July 13, 2010, the U.S. Court of Appeals for the Second Circuit in Fox Television Stations, Inc. v. FCC struck down the FCC’s indecent speech policy, reasoning that the policy was unconstitutionally vague. The Second Circuit’s decision has been viewed as a victory for broadcasters and others who thought the FCC’s indecent speech […]

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Hand Over Your Tax Accrual Workpapers: The First Circuit in United States v. Textron Exposes Dual-Purpose Documents to Discovery

Abstract: On August 13, 2009, the First Circuit in United States v. Textron Inc. held that tax accrual workpapers are not protected from discovery under the attorney work-product privilege. In so doing, the court eviscerated the last line of protection for dual-purpose tax documents from the prying eyes of the IRS and opposing parties in […]

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