E. Supp.

DNA as the Twenty-First Century Fingerprint: Approval of DNA Collection upon Arrest in United States v. Mitchell

Abstract: On July 25, 2011, in United States v. Mitchell, the U.S. Court of Appeals for the Third Circuit held that taking a DNA sample from a pre-trial arrestee did not violate the Fourth Amendment. The court did so by holding that taking DNA profiles serves only to identify arrestees, and thus, like fingerprinting, is […]

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Removing the Roadblock to Intervention of Right: Wilderness Society v. U.S. Forest Service and the Ninth Circuit’s Decision to Abandon Its Federal Defendant Rule

Abstract: In 2011, in Wilderness Society v. U.S. Forest Service, the U.S. Court of Appeals for the Ninth Circuit abandoned its unique federal defendant rule, which prohibited any non-federal entity from intervening of right to defend the federal government’s decisions under the National Environmental Policy Act of 1969. In doing so, the Ninth Circuit ensured […]

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Therasense-less: How the Federal Circuit Let Policy Overtake Precedent in Therasense, Inc. v. Becton, Dickinson & Co.

Abstract: On May 25, 2011, in Therasense, Inc. v. Becton, Dickinson & Co., the en banc U.S. Court of Appeals for the Federal Circuit fundamentally restructured the patent law doctrine of inequitable conduct. The court did so by holding that both intent and materiality are required for successfully claiming the defense, and that materiality must […]

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Resurrecting the Spirit of the Law: Copyright Preemption and Idea Protection in Montz v. Pilgrim Films

Abstract: On May 4, 2011, in Montz v. Pilgrim Films & Television, Inc., the U.S. Court of Appeals for the Ninth Circuit held that an implied-in-fact contract claim survived preemption by the Copyright Act of 1976 because it was qualitatively different from a copyright claim. It did so by applying a permissive interpretation of the […]

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Gating the Gatekeeper: Tamraz v. Lincoln Electric Co. and the Expansion of Daubert Reviewing Authority

Abstract: On September 8, 2010, in Tamraz v. Lincoln Electric Co., the U.S. Court of Appeals for the Sixth Circuit held that a neurologist’s expert testimony was speculative and therefore inadmissible under Rule 702 of the Federal Rules of Evidence. In so holding, the Sixth Circuit departed from its traditional deference to Rule 702 rulings […]

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An Implicit Exemption, Implicitly Applied: Blurring the Line of Accommodation Between Labor Policy and Antitrust Law in Harris v. Safeway

Abstract: On July 12, 2011, in Harris v. Safeway, the U.S. Court of Appeals for the Ninth Circuit held that an agreement among employers to share profits during a labor union strike did not fall within the non-statutory labor exemption to the antitrust laws and required full rule of reason review. In doing so, however, […]

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Violating Privacy in Private: How Epic v. DHS Creates an Impossible Burden on Plaintiffs Trying to Demonstrate a Privacy Act Violation

Abstract: On July 15, 2011, in Electronic Privacy Information Center v. U.S. Department of Homeland Security, the U.S. Court of Appeals for the D.C. Circuit held that to prove a violation of the Privacy Act, a plaintiff must show evidence of specific conduct. Yet, the current system of Freedom of Information Act exceptions and presumptions […]

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Beaty and the Beast: A Prisoner’s Due Process Right to Notice of Changes to Execution Protocols

Abstract: On May 25, 2011, in Beaty v. Brewer, the U.S. Court of Appeals for the Ninth Circuit held that a prisoner’s due process rights do not include the right to notice or to appeal a last-minute change to a state’s method of execution. In doing so, the court established a loophole, permitting states to […]

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Let’s Make It a True Daily Double (Jeopardy): How James Harrison Was Acquitted of the Death Penalty Only to Face It Again

Abstract: On May 10, 2011, in Harrison v. Gillespie, the U.S. Court of Appeals for the Ninth Circuit held that defendants do not have a per se constitutional right to poll the jury before a trial judge declares a mistrial. Further, the court held that the Double Jeopardy Clause does not preclude a court from […]

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Just Who Can You Sue? The Cyr Approach to Determining Proper Defendants in ERISA Actions

Abstract: On June 22, 2011, in Cyr v. Reliance Standard Life Insurance Co., the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, held that a third-party insurer is a proper defendant in an ERISA action, and that potential liability under ERISA is not limited to the benefits plan itself or the designated […]

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A Stronger Defensive Line: Extending NFL Owners’ Antitrust Immunity Through the Norris-Laguardia Act in Brady v. NFL

Abstract: On July 8, 2011, in Brady v. NFL, the U.S. Court of Appeals for the Eighth Circuit held that the Norris-LaGuardia Act prevented the injunction of an NFL lockout. In so doing, the court provided to the NFL an additional shield from antitrust scrutiny. This Comment argues that by immunizing NFL lockouts from antitrust […]

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12(b) What? Slater and Enforcing Forum Selection Clauses Through Dismissal

Abstract: On March 8, 2011, the U.S. Court of Appeals for the Eleventh Circuit held in Slater v. Energy Services Group International, Inc. that Rule 12(b)(3) governs motions to dismiss under a forum selection clause, whereas 28 U.S.C. § 1404(a) governs motions to transfer under a forum selection clause. In doing so, the Eleventh Circuit further […]

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A Fatal Flaw: The Ninth Circuit Further Restricts Liability in 10b-5 Private Security Fraud Cases in Reese v. BP

Abstract: On June 28, 2011, in Reese v. BP Explorations (Alaska) Inc., the U.S. Court of Appeals for the Ninth Circuit held that plaintiffs could not bring certain securities fraud claims relating to a burst in an Alaskan oil pipeline, because the plaintiffs failed to show that the defendant had the “ultimate authority” for the […]

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Spoiling a Fresh Start: In re Dawes and a Family Farmer’s Ability to Reorganize Under Chapter 12 of the U.S. Bankruptcy Code

Abstract: On June 21, 2011, the Tenth Circuit, in In re Dawes, held that post-petition capital gains taxes are incurred by the individual debtor rather than the bankruptcy estate. Consequently, such tax liabilities are not eligible for downgrade and discharge under 11 U.S.C. § 1222(a)(2)(A). This Comment argues that, although the Dawes decision contradicts the legislative […]

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Sometimes You’re in, Sometimes You’re out: Undocumented Immigrants and the Fifth Circuit’s Definition of “The People” in United States v. Portillo-Muñoz

Abstract: On June 29, 2011, the U.S. Court of Appeals for the Fifth Circuit, in United States v. Portillo-Muñoz, upheld a federal statute prohibiting firearms possession by undocumented immigrants by concluding that undocumented immigrants are not part of “the people” granted Second Amendment rights. In doing so, the Fifth Circuit created an unprecedented distinction between […]

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Low Savings Rate: Applying the Section 2255 “Savings Clause” to Federal Sentencing Claims in Gilbert v. United States

Abstract: On May 19, 2011, in Gilbert v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that a federal prisoner could not use the savings clause contained in 28 U.S.C. § 2255 to challenge collaterally an erroneous application of federal sentencing guidelines when the challenge was otherwise barred by the second or […]

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Recording over Old Standards: Tivo’s “More Than Colorably Different” Standard for Patent Injunction Contempt Proceedings

Abstract: On April 20, 2011, the U.S. Court of Appeals for the Federal Circuit in TiVo Inc. v. EchoStar Corp. overruled KSM Fastening Systems, Inc. v. H.A. Jones Co. and outlined a new analysis for patent injunction contempt proceedings when an adjudged infringer has modified an infringing product. In doing so, the court balanced two […]

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Refusing to “Kiss the Great Writ Good-Bye”: The Ninth Circuit, in Doody v. Ryan, Ignores the Supreme Court’s Cues Regarding Federal Habeas Relief

Abstract: On May 4, 2011, the U.S. Court of Appeals for the Ninth Circuit in Doody v. Ryan held that the Arizona Court of Appeals’ application of U.S. Supreme Court precedent regarding Miranda warnings was unreasonable. Therefore, it granted the defendant federal habeas relief under the Antiterrorism and Effective Death Penalty Act (AEDPA). In so […]

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Splitting the Difference: Layshock and J.S. Chart a Separate Path on Student Speech Rights

Abstract: On June 13, 2011, the U.S. Court of Appeals for the Third Circuit, in Layshock ex rel. Layshock v. Hermitage School District and J.S. ex rel. Snyder v. Blue Mountain School District, held that school officials could not constitutionally punish the online, off-campus speech of two students when the speech would not foreseeably cause […]

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Proof of Discrimination at Summary Judgment: The Eighth Circuit’s Focus on Categories of Evidence in Torgerson v. City of Rochester

Abstract: On June 1, 2011, the U.S. Court of Appeals for the Eighth Circuit, in Torgerson v. City of Rochester, granted summary judgment for the employer, the City of Rochester, by holding that the plaintiffs had failed to produce sufficient direct or indirect evidence of discrimination. On appeal, the en banc Eighth Circuit categorized plaintiffs’ […]

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