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Volume 64
COMMENT: The Limits of Executive Authority to Preempt Contrary State Laws in Foreign Affairs after Medellín v. Texas

By Shahrzad Noorbaloochi 64 Am. U. L. Rev. 687 (2015)

In 2012, the U.S. Court of Appeals for the Ninth Circuit decided Movsesian v. Victoria Versicherung AG after hearing the case three times.  In the final hearing, the court held that an informal executive policy against the recognition of the Armenian Genocide was sufficient to preempt a California law that provided such formal recognition.  Scholars have criticized this decision on grounds that it conflicts with one of the Court’s latest holdings on foreign affairs preemption in Medellín v. Texas.  The extension of Medellín to foreign affairs preemption cases such as Movsesian III is inappropriate, however, because Medellín involved highly unique facts in three ways.  First, the executive action in Medellín inherently and radically conflicted with the will of Congress in that it attempted to execute a non-self-executing treaty into law by way of an executive memorandum.  Second, Medellín posed the unique threat of empowering international courts over domestic courts, a threat that was absent in Movsesian III.  Third, Medellín involved the adjudication of a criminal matter, an arena in which the states possess a quintessential and thus preemptively more resilient interest than the insurance regulation matter at issue in Movsesian III.

COMMENT: A Slow March Towards Thought Crime: How the Department of Homeland Security’s FAST Program Violates the Fourth Amendment

By Christopher A. Rogers | 64 Am. U. L. Rev. 337 (2014)

The United States Government is currently developing a system that can read minds—a situation that George Orwell envisioned when he wrote Nineteen Eighty-Four. The Future Attribute Screening Technology ("FAST"), currently being tested by the U.S. Department of Homeland Security (DHS), employs a variety of sensor suites to scan a person's vital signs, and based on those readings, to determine whether the scanned person has "malintent"—the intent to commit a crime.

NOTE: Shoot First, Ask Later: Constitutional Rights at the Border After Boumediene

By Brittany Davidson │ 64 Am. U. L. Rev. 1547 (2015)

Adopting Boumediene’s functional approach in analyzing extraterritorial application of the United States Constitution at the U.S.-Mexico border will promote uniformity and provide guidance to courts and officials. Currently, courts are applying Verdugo-Urquidez’s sufficient connections test, and different variations thereof, permitting courts to arbitrarily decide who is entitled to constitutional protection in the absence of uniform precedent. Adopting Boumediene as the guiding test will not automatically trigger constitutional protection, instead, constitutional protection will only be granted if extending protection to an alien at the U.S.-Mexico border is justified based on the three-prong test. 

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The Downfall of Auer Deference: Veterans Law at the Federal Circuit in 2014

By Victoria Hadfield Moshiashwili | 64 Am. U. L. Rev. 1007

The 2014 veterans benefits case law of the U.S. Court of Appeals for the Federal Circuit mirrored a growing trend at the U.S. Supreme Court to question the well-established tradition of judicial deference to a federal agency’s interpretation of its own regulations.   This article examines the Federal Circuit’s 2014 veterans benefits cases.  Part I provides background and context for the issues raised by the Federal Circuit’s 2014 cases.  Part II surveys changes in the composition of the Federal Circuit during the past year.  Part III reviews and summarizes the Federal Circuit’s 2014 veterans law cases.  Part IV discusses the court’s recent willingness to question Auer deference and how that principle applies in the context of veterans law.

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COMMENT: Litigation Finance in the Public Interest

By Jason M. Wilson | 64 Am. U. L. Rev. 385 (2014)

In the United States, public interest organizations play a vital role in promoting access to justice and private enforcement of the law. Nevertheless, these organizations face considerable financial constraints in litigating for their causes. While the non-profit sector and private bar provide commendable support through grants and pro bono assistance, this Comment suggests that this financing model does not adequately meet the needs of organizations that undertake expensive litigation efforts on behalf of their clients. In an effort to alleviate this burden, this Comment puts forth an alternative model of funding public interest litigation by merging social entrepreneurship with the newly revitalized practice of litigation finance. Specifically, it proposes that a litigation financing firm organize as a benefit corporation to provide funding for public interest litigation in exchange for a share of any monetary relief generated. This arrangement has the potential to pair a growing community of investors interested in making a social impact with plaintiffs of worthwhile causes, and in the process, ensure greater access to justice and private enforcement of the law. Additionally, it may invigorate a growing litigation finance sector to fund cases that it has thus far chosen not to support.

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