E. Supp. Vol. 58

Deference to the Agency Is the Best Policy: The D.C. Circuit Applies Chevron in Denying Additional Medicare Reimbursements to Provider Hospitals in Washington Regional Medicorp

Abstract: On December 29, 2015, in Washington Regional Medicorp v. Burwell, the U.S. Court of Appeals for the District of Columbia Circuit held that the Secretary of Health and Human Services (“HHS”) correctly interpreted the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”) in calculating Medicare reimbursements for a provider hospital based on the […]

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Rosenfield v. GlobalTranz: Is the Manager Rule Dead? The Ninth Circuit Holds That Fair Notice Is the Appropriate Test for Whether a Managerial Employee’s Activity Is Protected Under the FLSA

Abstract: On December 14, 2015, in Rosenfield v. GlobalTranz Enterprises, Inc., the U.S. Court of Appeals for the Ninth Circuit held that the proper test for when an employee’s actions constituted a protected complaint under the anti-retaliation provision of the Fair Labor Standards Act of 1938 (“FLSA”) was whether the employer had fair notice that […]

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Circumstances Requiring Safeguards: Limitations on the Application of the Categorical Approach in Hernandez-Zavala v. Lynch

Abstract: On November 20, 2015, the U.S. Court of Appeals for the Fourth Circuit in Hernandez-Zavala v. Lynch held that adjudicators deciding whether a noncitizen has been convicted of a crime of domestic violence as defined in 8 U.S.C. § 1227(a)(2)(E)(i) must apply the circumstance-specific approach to the statute’s domestic relationship requirement. In so doing, the […]

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Who Needs to Know? The Seventh Circuit Accepts Information Sent to Government as Publicly Disclosed in Cause of Action v. Chicago Transit Authority

Abstract: On February 29, 2016, the United States Court of Appeals for the Seventh Circuit in Cause of Action v. Chicago Transit Authority held that information disclosed to a government official and acted upon by that official has been publicly disclosed, barring a qui tam action from being brought under the False Claims Act. Several […]

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Good Things Don’t Come to Those Forced to Wait: Denial of a Litigant’s Request to Proceed Anonymously Can be Appealed Prior to Final Judgment in the Wake of Doe v. Village of Deerfield

Abstract: On April 12, 2016, in Doe v. Village of Deerfield, the United States Court of Appeals for the Seventh Circuit held that a denial of a motion to proceed anonymously is an immediately appealable order under the collateral order doctrine. The Seventh Circuit joined the Fourth, Fifth, Ninth, Tenth and Eleventh Circuits in holding […]

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Creating Confusion Rather than Clarity: The Sixth Circuit’s (Lack of) Decision in Tree of Life Christian Schools v. Upper Arlington

Abstract: There is currently a split among five federal circuits as to what constitutes a secular comparator to a religious assembly or institution under the equal terms provision of the Religious Land Use and Institutionalized Persons Act. Stemming from this initial split, courts have further divided as to what is necessary to establish a prima […]

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Third Circuit Confirms the Class Arbitration “Clear and Unmistakable Standard” in Chesapeake Appalachia LLC v. Scout Petroleum LLC, Dealing a Blow to Consumers and Employees

Abstract: Whether class action is available in an arbitration proceeding is a highly controversial topic with implications for all parties bound by such clauses. Due to the high stakes of class action arbitrability, it is essential that a neutral decisionmaker determine this question. Whether this decisionmaker is the court or the arbitrator, however, is contested […]

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Weaponizing Citizen Suits: Second Circuit Revises the Burden of Proof for Proving Sham Citizen Petitions in Apotex v. Acorda Therapeutics

Abstract: In 2016, in Apotex Inc. v. Acorda Therapeutics, Inc., the United States Court of Appeals for the Second Circuit held that a generic drug company could not rely solely on the timing of the Food and Drug Administration’s (“FDA’s”) disposition of a citizen suit and approval of a generic application to state a claim […]

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The Role of Antitrust Principles in Patent Monopolies: The Third Circuit Applies Antitrust Scrutiny to No-AG Patent Settlements in Smithkline

Abstract: On June 26, 2015, in King Drug Co. of Florence v. Smithkline Beecham Corp., the U.S. Court of Appeals for the Third Circuit held that no-authorized generic agreements (“no-AG agreements”), in which a pioneer pharmaceutical manufacturer agrees not to introduce a generic drug, are subject to antitrust scrutiny under the Sherman Act. This Comment […]

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The Constitutionality of the Immigration and Nationality Act Called into Question Again: The Ninth Circuit Correctly Holds “Obstruction Of Justice” Raises Grave Constitutional Concerns in Valenzuela Gallardo v. Lynch

Abstract: On March 31, 2016, in Valenzuela Gallardo v. Lynch, the U.S. Court of Appeals for the Ninth Circuit found that the phrase “an offense relating to obstruction of justice,” used as one definition of an aggravated felony within the Immigration and Nationality Act, raised grave unconstitutional vagueness concerns because there are no limits to […]

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But See Kohlheim: The Third Circuit Muddies the Water on the Compensability of Employee Meal Periods Under the Fair Labor Standards Act in Babcock v. Butler County

Abstract: On November 24, 2015, the U.S. Court of Appeals for the Third Circuit, in Babcock v. Butler County, formally adopted the application of the predominant benefit test when determining if the Fair Labor Standards Act requires an hourly employee’s meal period to be compensated. In so doing, the court implicitly concluded that each circuit […]

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Too Little Space: Does a Zoning Regulation Violate the Second Amendment?

Abstract: On May 16, 2016, in Teixeira v. County of Alameda, the U.S. Court of Appeals for the Ninth Circuit held that a zoning ordinance was not presumptively lawful under the Second Amendment. The court utilized the two-step analysis derived from the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller to examine […]

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Enjoying Your “Free” App? The First Circuit’s Approach to an Outdated Law in Yershov v. Gannett Satellite Information Network, Inc.

Abstract: On April 29, 2016, in Yershov v. Gannett Satellite Information Network, Inc. (“Yershov II”), the U.S. Court of Appeals for the First Circuit held that the Video Privacy Protection Act (“VPPA”) of 1988 extended to a free application provider who disclosed its users’ GPS coordinates, phone identification numbers, and video histories to a data […]

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The Cure Is Worse: First Circuit Circumvents False Claims Act’s First-to-File Rule in United States Ex Rel. Gadbois v. Pharmerica Corp.

Abstract: In 2015, in United States ex rel. Gadbois v. PharMerica Corp., the U.S. Court of Appeals for the First Circuit held that a qui tam relator could use supplementation to cure a jurisdictional first-to-file defect in a False Claims Act (“FCA”) action. In contrast, in 2010, the U.S. Court of Appeals for the Seventh […]

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Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder

Abstract: In late 2016, U.S. Court of Appeals for the Sixth Circuit’s concluded in Does #1–5 v. Snyder that Michigan’s sex offender registry and residency restriction law constituted an ex post facto punishment in violation of the constitution. In its decision, the Sixth Circuit engaged with scientific evidence that refutes moralized judgments about sex offenders, […]

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Dispelling the Myth that Law Students Can Close the Justice Gap

Abstract: Recently, the idea that law students can bridge the “justice gap,” understood here as both the inability of low-income Americans to obtain civil legal services and the inadequacy of representation by overworked public defenders in criminal cases, has been gaining in popularity. This growing trend is embodied in the pro bono requirements imposed on […]

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The Overlooked Daisy Chain Problem in Salman

Abstract: In Salman v. United States, the Supreme Court granted certiorari to resolve a conflict with United States v. Newman as to when corporate insiders receive sufficient personal benefit from making gifts of inside information to make the tip and consequent trade illegal. This Essay explores an overlooked aspect of these cases, the “daisy chain […]

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Decoupling Vaccine Laws

Abstract: School immunization requirements are an effective way of increasing vaccine rates and reducing outbreaks, but they may have a dark underside. Although such mandates protect the general public, the availability of exemptions may be open to exploitation as a tool to try to undermine other avenues for protecting the vaccine-deprived children themselves. This essay […]

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Leap of Faith: Determining the Standard of Faith Needed to Violate the Implied Covenant of Good Faith and Fair Dealing for Delaware Limited Liability Companies

Abstract: Delaware courts have long respected the right to contract in Delaware, and possibly no entity is afforded more privileges to set the boundaries of its corporate form than the Delaware Limited Liability Company. Unlike nearly every other state, Delaware permits LLCs to abolish the duties of care and loyalty in their operating agreements, but […]

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