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Volume 61, Issue 3
Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System

By Doni Gewirtzman | 61 Am. U. L. Rev. 457 (2011)

While federal circuit courts play an essential role in defining what the Constitution means, one would never know it from looking at most constitutional scholarship.  The bulk of constitutional theory sees judge-made constitutional law through a distorted lens, one that focuses solely on the Supreme Court with virtually no attention paid to other parts of the judicial hierarchy.  On the rare occasions where circuit courts appear on the radar screen, they are treated either as megaphones for communicating the Supreme Court’s directives or as tools for implementing the theorist’s own interpretive agenda.  Both approaches would homogenize the way circuit courts make choices about constitutional meaning, carving independent federal judges into cookie-cutter replicas of either the theorist or the Supreme Court.

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The Second-Class Action: How Courts Thwart Wage Rights by Misapplying Class Action Rules

By Scott A. Moss & Nantiya Ruan | 61 Am. U. L. Rev. 523 (2011)

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law.  Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases—mainly wage claims but also age discrimination and gender equal pay claims—29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively.  Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving strict commonality among members.

This Article argues that conditioning § 216(b) collective actions on certification motions proving commonality is incorrect.  Section 216(b) is not an opt-in version of Rule 23; it is a liberalized form of simple Rule 20 joinder, which permits joint suit whenever claims share one common issue and address related events. No text authorizes any § 216(b) certification inquiry, nor is judicial gatekeeping justified by economic logic: Rule 23 classes present principal-agent and asymmetric information problems because lead plaintiffs may inadequately represent unengaged members, but all § 216(b) collective actions members are full plaintiffs with individual claims, obviating the need for judicial scrutiny.

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Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of "Bearing Arms" for Self-Defense

By Michael P. O'Shea | 61 Am. U. L. Rev. 585 (2011)

This Article sheds light on a major constitutional question opened up by the United States Supreme Court’s landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago:  Does the Second Amendment “right to bear arms” include a right to carry a handgun for self-defense outside the home?  Some courts and commentators have declared that Heller held that the Second Amendment right is limited to the home, so that restrictions on handgun carrying do not even fall within the scope of the Second Amendment.  Others assert that the potential applicability of the right to bear arms outside the home is simply a “vast terra incognita,” devoid of guidance, into which lower courts should hesitate to venture for prudential reasons.

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COMMENT: The Federal Power Act's Double Standard: Unwinding the Mobile-Sierra Doctrine after Morgan Stanley Capital Group, Inc. v. Public Utility District No. 1

By John M. White | 61 Am. U. L. Rev. 677 (2011)

Emerging from two Supreme Court opinions decided in the 1950’s, the Mobile-Sierra doctrine has evolved to stand for a principle of contract sanctity in public utility rate setting.  The courts have largely come to the conclusion that the Federal Energy Regulatory Commission (the Commission) has less authority to modify rates set by contract, as compared to unilaterally-filed tariff rates, when the contract is the result of arm’s-length negotiations between sophisticated parties of equal bargaining power, unless the contract indicates otherwise.  Only in “extraordinary circumstances,” the Court has found, may the Commission step in to modify any such “Mobile-Sierra contract.”

 

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NOTE: The Folly of Rule 14a-11: Business Roundtable v. SEC and the Commission's Next Step

By Stephanie Lyn Parker | 61 Am. U. L. Rev. 715 (2011)

Click here to view this Note.