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Volume 62, Issue 3
Unmasking a Pretext for Res Ipsa Loquitur: A Proposal To Let Employment Discrimination Speak for Itself

By William R. Corbett | 62 Am. U. L. Rev. 447 (2013)

Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital. In Staub, the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or “cat’s paw”) liability. Staub was not the first case in which the Court has suggested that a federal employment discrimination law is a federal statutory tort, but it was the most express and direct statement. Moreover, the Court’s adoption of proximate cause, one of the most complicated, confusing, and criticized concepts in tort law, to analyze a prevalent issue in employment discrimination law is striking and provocative. Staub reinvigorates the debate about whether the Court and courts have imported too much tort law into employment discrimination law—the debate about the “tortification” of employment discrimination law.

Don’t Let Go of the Rope: Reducing Readmissions by Recognizing Hospitals’ Fiduciary Duties To Their Discharged Patients

By Thomas L. Hafemeister & Joshua Hinckley Porter | 62 Am. U. L. Rev. 513 (2013)

In the early years of the twenty-first century, it was widely speculated that massive, multi-purpose hospitals were becoming the “dinosaurs” of health care, to be largely replaced by community-based clinics providing specialty services on an outpatient basis. Hospitals, however, have roared back to life, in part by reworking their business model.

There has been a wave of consolidations and acquisitions (including acquisitions of community-based clinics), with deals valued at $7.9 billion in 2011, the most in a decade, and the number of deals increasing another 18% in 2012. The costs of hospital care are enormous, with 31.5% ($851 billion) of the total health expenditures in the United States in 2011 devoted to these services. Hospitals are (1) placing growing emphasis on increasing revenue and decreasing costs; (2) engaging in pervasive marketing campaigns encouraging patients to view hospitals as an all-purpose care provider; (3) geographically targeting the expansion of their services to “capture” well-insured patients, while placing greater pressure on patients to pay for the services delivered; (4) increasing their size, wealth, and clout, with two-thirds of hospitals undertaking renovations or additional construction and smaller hospitals being squeezed out, and (5) expanding their use of hospital-employed physicians, rather than relying on community-based physicians with hospital privileges, and exercising greater control over medical staff.

Conditional Spending After NFIB v. Sebelius: The Example of Federal Education Law

By Eloise Pasachoff | 62 Am. U. L. Rev. 577 (2013)

In NFIB v. Sebelius, the Supreme Court’s recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the Act’s expansion of Medicaid was unconstitutionally coercive and therefore exceeded the scope of Congress’s authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than theoretical possibility under the Spending Clause. In the wake of the Court’s decision, commentators have expressed either the concern or the hope that NFIB’s coercion analysis may lead to the undoing of much of the federal regulatory state, which substantially relies on the spending power. This Article argues that both this concern and this hope are misplaced.

COMMENT: Gone with the Wind: Why Even Utility Patents Cannot Fence In Self-Replicating Technologies

By Jessica Lynd | 62 Am. U. L. Rev. 663 (2013)

Genetically modified (GM) seeds are a self-replicating patented technology, which through pollen drift can contaminate neighboring crops, leaving the contaminated farmer liable for patent infringement.  When pollen drift occurs, the patent holder should not be entitled to enforcement rights.  This is because the self-replicating patented organism has itself caused the infringement and has simultaneously failed the moral utility test. Furthermore, patent enforcement should be void under the doctrine of ex turpi causa non oritor actio when infringement arises from unlawful trespass or nuisance caused by the patented organism.

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COMMENT: A Few Good Angry Men: Application of the Jury Trial Clause of the Sixth Amendment to Non-Citizens Detained at Guantanamo Bay

By Thomas McDonald | 62 Am. U. L. Rev. 701 (2013)

Despite the substantial amount of writing on the Guantanamo Bay detention center, there has been very little discussion regarding which substantive constitutional rights are applicable to those being detained at the base. The Jury Trial Clause of the Sixth Amendment—as important as it is to the ultimate disposition of the detainees—has not been discussed in any detail at all. However, the history and jurisprudence surrounding the Jury Trial Clause suggests that it should apply in full in Guantanamo Bay.

While there is some general debate as to which constitutional provisions apply extraterritorially, the fundamental nature of the right to jury trial indicates that it should apply in Guantanamo even if it is found to be an unincorporated territory. Additionally, arguing, as the government has thus far, that the detainees are not entitled to a jury trial based on the rule created in Ex parte Quirin—that is, because they are enemy combatants charged with violating the law of war—may be applicable in some cases but would be inappropriate to extend as a categorical rule. To that end, the government’s reliance on Quirin in Guantanamo is somewhat telling, as this argument actually presupposes that detainees would be entitled to the right to jury trial if Quirin were found not to apply. Therefore, the government cannot lawfully conduct trials in Guantanamo Bay without adhering to the Jury Trial Clause of the Sixth Amendment.

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NOTE: Who's Standing in the District After Grayson v. AT&T Corp.? The Applicability of the Case-or-Controversy Requirement in D.C. Courts

By John W. Curran | 62 Am. U. L. Rev. 739 (2013)

In Grayson v. AT&T Corp. (Grayson II), the District of Columbia Court of Appeals sitting en banc held that a D.C. statute that purportedly granted individuals standing without suffering an injury-in-fact did not actually do so. The court rested on tenuous grounds and held as a matter of statutory interpretation and legislative history that the D.C. Council did not make explicit its intent to overrule years of the court’s standing requirements. In doing so, the court avoided a clear opportunity to answer the question of whether the Article III case-or-controversy requirement applies in D.C. courts.

NOTE: Intent to Reconcile: SEC v. Obus, the Second Circuit's Edification of the Tippee Scienter Standard

 By Allison M. Vissichelli | 62 Am. U. L. Rev. 763 (2013)

On September 6, 2012, the U.S. Court of Appeals for the Second Circuit resurrected a $1.3 million enforcement action initiated by the U.S. Securities Exchange Commission (SEC) against, among others, Wynnefield Capital, Inc. founder Nelson Obus.  Finding that the SEC provided sufficient evidence to create genuine issues of material fact as to whether Obus and the other defendants engaged in conduct amounting to insider trading in violation of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, the Second Circuit vacated the district court’s decision to grant summary judgment in favor of the defendants.  However, the significance of the Second Circuit’s decision is not limited to its revival of the SEC’s complaint.  Perhaps more importantly, the opinion offered a long-awaited resolution to the question of the degree of knowledge a tippee must have in order to satisfy insider trading’s scienter element.  The Second Circuit opined that sufficient scienter exists when the “tippee knew or had reason to know that confidential information was initially obtained and transmitted improperly” and “the tippee intentionally or recklessly traded while in knowing possession of that information.”  This Note argues that by adopting both a negligence and actual knowledge standard in SEC v. Obus,  the Second Circuit failed to provide a practical resolution to the apparent tippee scienter conflict.

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