E. Supp.

In Search of the Right Balance: Patco Lays the Foundation for Analyzing the Commercial Reasonableness of Security Procedures Under UCC Article 4A

Abstract: On July 3, 2012, in Patco Construction Co. v. People’s United Bank, the First Circuit held that security procedures used to verify electronic funds transfers initiated through online banking were commercially unreasonable. In reaching its decision, the court laid a strong foundation for analyzing commercial reasonableness in future cases. This Comment argues that future […]

Read More :: View PDF

Three Strikes and You’re Out . . . Maybe: “Violent Felonies” and the Armed Career Criminal Act in United States v. Vann

Abstract: On October 11, 2011, in United States v. Vann, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, held that Torrell Vann’s three prior indecent liberties convictions were not violent felonies under the federal Armed Career Criminal Act (ACCA). In so doing, the per curiam majority attempted to interpret the vague […]

Read More :: View PDF

Insurmountable Hill: How Undue AEDPA Deference Has Undermined the Atkins Ban on Executing the Intellectually Disabled

Abstract:  On November 22, 2011, in Hill v. Humphrey, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that a petitioner’s federal habeas petition challenging his death sentence must be denied in light of the degree of deference owed to the state habeas court’s decision under the Antiterrorism and Effective Death […]

Read More :: View PDF

A Snowball’s Chance in Heller: Why Decastro’s Substantial Burden Standard Is Unlikely to Survive

Abstract: On June 1, 2012, the U.S. Court of Appeals for the Second Circuit in United States v. Decastro analyzed a Second Amendment challenge to a firearm regulation using a substantial burden standard. In so doing, the Second Circuit ignored much of the Supreme Court’s guidance in its 2008 decision in District of Columbia v. […]

Read More :: View PDF

Last Call: According First-Filed Qui Tam Complaints Greater Preclusive Effect Under Batiste’s Narrow Interpretation of the First-to-File Rule

Abstract:  On November 4, 2011, in United States ex rel. Batiste v. SLM Corp., the U.S. Court of Appeals for the D.C. Circuit held that the False Claims Act’s “first-to-file” bar does not require that a first-filed complaint plead allegations of fraud with particularity to bar subsequent complaints alleging the same material elements of fraud. […]

Read More :: View PDF

Witness History as Juries Become History: How the Eleventh Circuit Allowed the Opinions of Lay Witnesses to Overtake the Duty of the Jury in United States v. Jayyousi

Abstract:  On September 19, 2011, in United States v. Jayyousi, the U.S. Court of Appeals for the Eleventh Circuit held that an FBI agent’s testimony regarding his post-hoc review of investigation materials was admissible as lay opinion testimony under Rule 701 of the Federal Rules of Evidence. In so holding, the Eleventh Circuit joined a […]

Read More :: View PDF

Right for the Wrong Reasons: The Ninth Circuit Excludes Misappropriation from the CFAA’s Ambit in United States v. Nosal

Abstract:  On April 10, 2012, in United States v. Nosal, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, held that the Computer Fraud and Abuse Act (“CFAA”) assigns criminal liability only in instances of hacking, not of misappropriation. In reaching this conclusion, the court engendered a split with two other circuits, […]

Read More :: View PDF

Taking the Nation out of Alienation: Dandamudi v. Tisch Affirms That Nonimmigrant Aliens Are Entitled to Suspect Class Protection

Abstract:  On July 10, 2012, in Dandamudi v. Tisch, the U.S. Court of Appeals for the Second Circuit struck down New York Education Law section 6805(1)(6), reasoning that it violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The law explicitly denied legal, nonimmigrant aliens the ability to apply for a […]

Read More :: View PDF

Now UCC Me, Now You Don’t: The Massachusetts Supreme Judicial Court Ignores the UCC in Requiring Unity of Note and Mortgage for Foreclosure in Eaton v. Fannie Mae

Abstract: On June 22, 2012, in Eaton v. Federal National Mortgage Association, the Supreme Judicial Court of Massachusetts upheld a trial court ruling and held that an entity must hold both note and mortgage in order to foreclose properly. Because this represented a significant shift in Massachusetts foreclosure law, the court applied its ruling only […]

Read More :: View PDF

Searching for “Something More”: Viacom Interprets the Control Provision of the DMCA § 512(c) Safe Harbor

Abstract: On April 5, 2012, in Viacom International, Inc. v. YouTube, Inc., the U.S. Court of Appeals for the Second Circuit held that 17 U.S.C. § 512(c)(1)(B) requires a service provider to exert “substantial influence” over user activity to show the requisite control necessary to remove it from safe harbor protection. In doing so, the […]

Read More :: View PDF

Holding Back the (Crimson) Tide of Trademark Litigation: The Eleventh Circuit Shields Works of Art from Lanham Act Claims in New Life Art

Abstract: On June 11, 2012, in University of Alabama Board of Trustees v. New Life Art, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that the Lanham Act does not apply to works of art that include others’ trademarks as long as the use of the trademark is artistically relevant to the […]

Read More :: View PDF

Slowing the Rates of Innovation: How the Second Circuit’s Ban on No-Challenge Clauses in Pre-Litigation Settlement Agreements Hinders Business Growth

On July 10, 2012, in Rates Technology Inc. v. Speakeasy, the U.S. Court of Appeals for the Second Circuit held that no-challenge clauses in pre-litigation settlement agreements are unenforceable. In its ruling, the court determined that sharing ideas and discovering invalid patents are policy considerations that supersede spurring innovation and settling litigation. This Comment argues […]

Read More :: View PDF

A Rational Basis Review That Warrants Strict Scrutiny: The First Circuit’s Equal Protection Analysis in Massachusetts v. U.S. Department of Health and Human Services

Abstract: On May 31, 2012, the U.S. Court of Appeals for the First Circuit in Massachusetts v. U.S. Department of Health & Human Services held Section 3 of the Defense of Marriage Act unconstitutional. In doing so, the court declined to extend heightened scrutiny to sexual preference classifications and instead relied on a more searching […]

Read More :: View PDF

Merck-y Standards: The Third Circuit’s Diverging Analysis of Reverse Payment Settlements in In re K-Dur Antitrust Litigation

Abstract: On July 16, 2012, in In re K-Dur Antitrust Litigation, the U.S. Court of Appeals for the Third Circuit held that, when challenged as an antitrust violation, a reverse payment settlement constitutes prima facie evidence of an unreasonable restraint of trade. The “quick look rule of reason” analysis articulated by the court represents a […]

Read More :: View PDF

Riding the Waiver: In re American Express Merchants’ Litigation and the Future of the Vindication of Statutory Rights

Abstract: On February 1, 2012, the U.S. Court of Appeals for the Second Circuit held in In re American Express Merchants’ Litigation that a class action waiver was unenforceable because class litigation was the only economically feasible way for the plaintiffs to vindicate their statutory rights under the Sherman Act. In doing so, the Second […]

Read More :: View PDF

Duty of “Sameness”?: Bartlett Preserves Generic Drug Consumers’ Design Defect Claims

Abstract: On May 2, 2012, the U.S. Court of Appeals for the First Circuit held in Bartlett v. Mutual Pharmaceutical Co. that the Federal Food, Drug, and Cosmetic Act (FDCA) does not preempt design defect claims against generic manufacturers. The court reasoned that, by not manufacturing the drug, a generic manufacturer could avoid state design […]

Read More :: View PDF