E. Supp. Vol. 56_ 2015

Whistleblower’s Delight: An Evaluation of the Third Circuit Decision in Foglia v. Renal Ventures

Abstract: In 2014, in Foglia v. Renal Ventures Management LLC, the U.S. Court of Appeals for the Third Circuit evaluated the pleading requirements needed to satisfy Rule 9(b) of the Federal Rules of Civil Procedure, within the context of False Claims Act complaints. The Third Circuit concurred with the First, Fifth, and Ninth Circuits and […]

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Mere Speculation: Overextending Carcieri v. Salizar in Big Lagoon Rancheria v. California

Abstract: On January 21, 2014, in Big Lagoon Rancheria v. California, a divided panel of the U.S. Court of Appeals for the Ninth Circuit reversed the order of the U.S. District Court for the Northern District of California directing the State of California to negotiate with the Big Lagoon Rancheria toward the development of a […]

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A Criminal Defendant’s First Bite at the Constitutional Apple: The Eleventh Circuit’s Excessively Deferential Conception of “Adjudication on the Merits” in Childers v. Floyd

Abstract: On November 13, 2013, in Childers v. Floyd, the U.S. Court of Appeals for the Eleventh Circuit found that Wyon Childers had failed to rebut the presumption that his Confrontation Clause claim was adjudicated on the merits. In this case, and a previous decision that led to it, the court conducted its habeas corpus […]

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Unknowable Remedies: Albino v. Baca, The PLRA Exhaustion Requirement, and the Problem of Notice

Abstract: On April 3, 2014, in Albino v. Baca, the U.S. Court of Appeals for the Ninth Circuit held that when a prisoner plaintiff has not been informed of a prison administrative remedy, that remedy is effectively unavailable to the prisoner for the purposes of the exhaustion requirement of the Prison Litigation Reform Act (PLRA). […]

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A Cause for Concern: The Need for Proximate Cause in SEC Enforcement Actions and How the Third Circuit Got It Wrong in SEC v. Teo

Abstract: On February 10, 2014, in SEC v. Teo, the U.S. Court of Appeals for the Third Circuit held that, in an action for disgorgement of profits under the Securities Exchange Act of 1934, the Securities Exchange Commission (SEC) does not have the burden of proving proximate cause. The court reasoned that the SEC must […]

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Return Fire: An En Banc Hearing in Wollschlaeger v. Governor of Florida Is Necessary to Protect the First Amendment Rights of Physicians

Abstract: In 2014, in Wollschlaeger v. Governor of Florida, the U.S. Court of Appeals for the Eleventh Circuit held that a Florida ban on physician speech about firearm ownership was a valid regulation of professional conduct. The court reasoned that because the speech took place within the physician-patient relationship it should be treated as professional […]

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Behind the Venire: Rationale, Rewards and Ramifications of Heightened Scrutiny and the Ninth Circuit’s Extension of Equal Protection to Gays and Lesbians During Jury Selection in SmithKline v. Abbott

Abstract: On January 21, 2014, in SmithKline v. Abbott, the U.S. Court of Appeals for the Ninth Circuit held that heightened scrutiny applies to classifications based on sexual orientation, and equal protection forbids striking jurors because they are gay or lesbian. The Ninth Circuit interpreted the Supreme Court’s recent analysis in United States v. Windsor […]

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She’s Got a Ticket to Ride: The Ninth Circuit’s Determination in Sachs v. Republic of Austria That a Ticket Sale by a Common Law Agent Abrogates a Foreign State-Owned Common Carrier’s Sovereign Immunity

Abstract: On December 6, 2013, in Sachs v. Republic of Austria, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, held that a foreign state-owned common carrier carries on commercial activity in the United States when it sells rail passes through a United States ticket agent. In so holding, the court expanded […]

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Real Accountability: The NCAA Can No Longer Evade Antitrust Liability Through Amateurism After O’Bannon v. NCAA

Abstract: On August 8, 2014, in O’Bannon v. National Collegiate Athletic Association, the U.S. District Court for the Northern District of California held that the NCAA’s restriction on compensating student-athletes for the use of their names, images, and likenesses violated the Sherman Act. The court ruled against the NCAA despite a long history of judicial […]

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When Freedom Prevents Vindication: Why the Heck Rule Should Not Bar a Prisoner’s § 1983 Action in Deemer v. Beard

Abstract: In 2014, in Deemer v. Beard, the U.S. Court of Appeals for the Third Circuit held that the Heck v. Humphrey rule required all plaintiffs seeking damages for unconstitutional conviction under § 1983 to demonstrate that the criminal proceeding in question terminated in their favor. This decision defies a majority of circuit courts, which […]

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The Comfort of Home: Why Peruta v. County of San Diego’s Extension of Second Amendment Rights Goes Beyond the Scope Envisioned by the Supreme Court

Abstract: On February 13, 2014, in Peruta v. County of San Diego, the U.S. Court of Appeals for the Ninth Circuit extended the scope of the Second Amendment to cover the public carry of handguns. Extending the scope of the Second Amendment caused the Ninth Circuit to apply the incorrect standard of scrutiny in analyzing […]

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Limited Faith in the Good Faith Exception: The Third Circuit Requires a Warrant for GPS Searches and Narrows the Scope of the Davis Exception to the Exclusionary Rule in United States v. Katzin

Abstract: On October 22, 2013, in United States v. Katzin, the U.S. Court of Appeals for the Third Circuit held that police and federal agents must obtain a warrant prior to attaching a GPS device on a vehicle. In doing so, the Third Circuit became the first federal appeals court to add a warrant requirement […]

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“Wire” Circuit Courts Split on Cable Piracy: The Fifth Circuit Examines Federal Telecommunications Law in J&J Sports Productions, Inc. v. Mandell Family Ventures

Abstract: On May 2, 2014, in J&J Sports Productions, Inc. v. Mandell Family Ventures, LLC, the U.S. Court of Appeals for the Fifth Circuit overturned the lower court’s decision and held that section 605 of the Communications Act of 1934 does not apply to the unauthorized reception of cable wire transmissions originating as radio communications. […]

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Everybody’s Going Surfing: The Third Circuit Approves the Warrantless Use of Internet Tracking Devices in United States v. Stanley

Abstract: On June 11, 2014, in United States v. Stanley, the U.S. Court of Appeals for the Third Circuit held that the warrantless use of a tracking device to detect the location of a wireless signal was not a search in violation of the Fourth Amendment. The court reasoned that because the defendant was using […]

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