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Congratulations to Law Review staff members whose articles will be published in Volume 63.3!
Daniel B. AmodeoFair Notice:  Reassessing NLRB Authority to Inform Employees of Their Rights to Unionize
Sam Ivo BurumYes, NBA Players Should Make More Money:  How the NLRB Can Change the Future of Collective Bargaining Agreements in Professional Sports
Julie A. HerwardCatch All Predators:  Toward Uniform Interpreation of "Sexual Activity" in the Federal Child Enticement Statute
Michael Castle MillerThe New Per Se Takings Rule:  Koontz's Implicit Revolution of the Regulatory State

Federal Circuit Issue

Federal Circuit Issue

The American University Law Review is the only law review in the country to publish an issue exclusively dedicated to the Federal Circuit.  Each year, practitioners and academics provide a synopsis of the Federal Circuit's caseload from the previous year in five major areas of the court's jurisdiction:  patent law, trademark law, government contracts, international trade, and veterans' benefits.  Click here to learn more about the federal circuit issue and click here to read the 2013 Federal Circuit Issue.

The 2014 Federal Circuit panel event, "Warning, the Following Material May be Explicit: Addressing the Efficacy of §2(a) of the Lanham Act" will be held April 11, 2014 at the offices of Arent Fox from 1:00 p.m. to 5:00 p.m.  

Symposium Issue

Symposium Issue

This year's Symposium is titled "Climate Power Play: Financial, Legislative, and Regulatory Moves Toward a New Energy Economy." The keynote speakers will be The Honorable Sheldon Whitehouse, United States Senator from Rhode Island, and Carol Browner, former Director of the White House Office of Energy and Climate Change Policy and Administrator of the Environmental Protection Agency. It will be held from 1:00 p.m. to 6:00 p.m. on Monday, November 18, 2013, at the law offices of McDermott Will & Emery, 500 N. Capitol Street, N.W., Washington, DC, 20001. A reception will follow the program. Click here to view the programClick here for the agenda; and register here.

 

Current Issue, Volume 63.2

Speak Now or Hold Your Peace: Prearbitration Express Waivers of Evident-Partiality Challenges

 By Edward C. Dawson | 63 Am. U. L. Rev. 307 (2013)

This Article proposes that parties and arbitrators should use, and courts should enforce, express prearbitration waivers of certain evident-partiality challenges as a way to avoid uncertainty and expense caused by widely-acknowledged disarray in the doctrine of evident partiality. Courts considering evident-partiality cases mainly have focused on (and disagreed about) the content of the doctrine and the circumstances in which a party can constructively waive an evident-partiality challenge by failing to object to an arbitrator despite knowing about a particular relationship. Similarly, the academic literature examining evident partiality has focused on the appropriate judicial test for assessing partiality, rules for defining the scope of an arbitrator’s duty to disclose, and proposals for reconciling the division in the courts.

Read more...
 
Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act

 By Stacy E. Seicshnaydre  | 63 Am. U. L. Rev. 357 (2013)

 After four decades of unanimity in the circuit courts, with several denials of certiorari by the Supreme Court, the Court has recently granted certiorari in two cases to resolve the apparently settled question of whether the disparate impact theory is cognizable under the Fair Housing Act (FHA). Although these two recent cases, Magner v. Gallagher and Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., may have raised questions about the potential reach of disparate impact theory, they are not representative FHA cases with respect to their outcomes or their facts. The circuit courts in both cases reversed summary judgment and reinstated plaintiffs’ disparate impact claims, which is exceedingly rare given its occurrence only twice before in forty years.

Read more...
 
The Illusory Eighth Amendment

By John F. Stinneford | 63 Am. U. L. Rev. 437 (2013)

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive
punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. 

Read more...
 
COMMENT: Checking the DHS: Constitutional and Subconstitutional Approaches to Resolving Whether Noncitizens in Removal Proceedings Can Obtain Effective Judicial Review of Naturalization Decisions

By Michael Castle Miller | 63 Am. U. L. Rev. 497 (2013)

Forgotten in the current legislative debates regarding immigration policy is a deep divide among seven federal circuits over whether immigrants who face deportation, after applying for and being denied citizenship, can obtain judicial review of the citizenship denial. Under a plain reading of the Immigration and Nationality Act, the answer seems to be yes—courts must exercise de novo review notwithstanding the pendency of removal proceedings. One provision prevents the U.S. Department of Homeland Security (DHS) from considering applications filed by people facing deportation, but nothing limits federal courts’ powers when the DHS has already made a decision on the application or has delayed making a decision for a reason unrelated to the pending removal proceedings. 

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COMMENT: Governing from the Pulpit: How the First Circuit in ACLU of Massachusetts v. U.S. Conference of Catholic Bishops Failed to Prevent a Government Agency from Unconstitutionally Contracting its Duties to a Religious Institution

By Anna M. Lashley | 63 Am. U. L. Rev. 607 (2013)

When the government delegates its discretionary power to religious institutions, it violates a fundamental right guaranteed by the First
Amendment of the U.S. Constitution—the freedom from government entanglement with religion. The Establishment Clause of the First Amendment
was written to protect religious freedom from intrusion by the government by preventing, to the extent possible, the imposition of either the church or the government into the confines of the other. This separation between church and state is essential to preserve the liberty of the American people and to ensure that the nation stays true to its Constitution. 

In 2009, the U.S. Department of Health and Human Services (HHS) violated the Establishment Clause when it formed a master contract with the U.S. Conference of Catholic Bishops (USCCB). This contract authorized the USCCB to allocate federal funds to subcontractors pursuant to the Trafficking Victims Protection Act of 2000, a discretionary duty originally assigned to the HHS. 

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COMMENT: If it Quacks Like a Duck: Reviewing Health Care Providers' Speech Restrictions Under the First Prong of Central Hudson

By Shawn L. Fultz | 63 Am. U. L. Rev. 563 (2013)

The First Amendment protects the speech of health care providers. This protection can limit states’ abilities to protect patients from harmful therapies involving speech, such as sexual orientation change efforts. Because providers’ speech is more similar to commercial speech than traditional political discourse, it is possible to create a First Amendment review analysis that better balances states’ police powers with providers’ First Amendment rights. Under a “single-prong” approach, the first prong of Central Hudson can be used to identify quackery, which is analogous to false or misleading commercial speech and would therefore be outside the protection of the First Amendment. Because health care must be tailored to individual patients, restrictions on speech that survive the first prong of Central Hudson would be subject to strict scrutiny in order to leave the therapeutic decision to the provider and her patient, and maintain consistency with current jurisprudence. 

Read more...
 

Welcome!

Thank you for visiting the new American University Law Review website!  This site provides a central and convenient location to browse our volumes, preview forthcoming scholarship, and learn more about our publication.  Please send any questions or comments to lawrev@wcl.american.edu.

Founded in 1952, the Law Review is the oldest and largest student-run publication at the Washington College of Law and publishes six issues each year.  The Law Review is consistently ranked among the top fifty law journals in the nation and is the most-cited journal at WCL, according to the Washington and Lee University Law Library.

Rather than focus on a particular area of law, the Law Review publishes articles, essays, and student notes and comments on a broad range of issues.  Recent topics have included the Second Amendment right to bear arms; the Freedom of Information Act; electronic copyright infringement; attorney-client privilege; immigration law; international trade law; and many other timely legal issues.

The Law Review receives approximately 2,500 submissions annually and publishes articles from professors, judges, practicing lawyers, and renowned legal thinkers.  The Law Review has published articles or commentary by Supreme Court Chief Justices Warren Burger, William Rehnquist, and Earl Warren, as well as Associate Justices Hugo Black, Ruth Bader Ginsburg, and Arthur Goldberg.

Click here to learn more.

Forthcoming, Volume 63.3

The Affordable Care Act, Remedy, and Litigation Reform, by Brendan S. Maher

Perceived Homosexuals:  Looking Gay Enough for Title VII, by Brian Soucek

Comment:  Fair Notice:  Reassessing NLRB Authority to Inform Employees of Their Rights to Unionize, by Daniel B. Amodeo

Comment:  Yes, NBA Players Should Make More Money:  How the NLRB Can Change the Future of Collective Bargaining Agreements in Professional Sports, by Sam Ivo Burum

Comment:  Catch All Predators:  Toward Uniform Interpreation of "Sexual Activity" in the Federal Child Enticement Statute, by Julie A. Herward 

Note:  The New Per Se Takings Rule:  Koontz's Implicit Revolution of the Regulatory State, by Michael Castle Miller

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