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Washington and Lee Law Review - Developments

Development

by Carl Tobias

When Donald Trump became President, the United States Court of Appeals for the Ninth Circuit had four judicial vacancies that the Administrative Office of the U.S. Courts (AO) identified as “judicial emergencies.” The court also faces a larger caseload than all the other regional circuits, and has frequently decided appeals the least swiftly. The 2016 election returns indicate that more confirmations will be necessary due to additional court members’ probable retirement or assumption of senior status during President Trump’s administration. Striking politicization could frustrate this effort, however. Soon after the inauguration, President Trump signed a novel executive order proscribing U.S. immigration travel from seven predominantly Muslim nations— which the court of appeals subsequently blocked—leading President Trump to criticize the tribunal as chaotic and the motions panel opinion and the judges who decided the case as “so political.” Because the Ninth Circuit resolves the greatest number of filings, and often does so more slowly than other regional circuits even when the tribunal is at full capacity, the compelling need for the President and the Senate to fill these four open positions deserves scrutiny.

Development

by Susan McCarter, Elisa Chinn-Gary, Louis A. Trosch Jr., Ahmed Toure, Abraham Alsaeedi, Jennifer Harrington

This article describes regional institutional organizing efforts to bring racial justice to the Charlotte courts and community through a collaborative called Race Matters for Juvenile Justice (RMJJ). The authors explain community and institutional organizing in-depth using the example of minority overrepresentation in the juvenile justice system, but recognize the pervasiveness of racial and ethnic disparities. Moreover, as the Race Matters for Juvenile Justice-Charlotte Model has gained national prominence, many jurisdictions seek to replicate the collaborative and the authors, therefore, provide RMJJ’s history as well as strategies for changing the narrative through communication and education, workforce development, data and research, community collaboration, practice change, and legislation reform.

Development

by Sonja R. West

When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that obstruct access by the general public and exploit real-world limitations on the press and practitioners, the justices have crafted a grey area in which they can be “public,” yet only to select audiences. The effect is that few outside the courtroom ever learn about these moments, even though they technically occurred in public. By operating in this semi-public sphere, the justices have robbed the public of important information about the workings of its Court. This essay adds to the ongoing discussion about transparency by exploring the Court’s “limited public forum” and the ways the justices have found to hide in plain sight.

Development

by Carl Tobias

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals for the District of Columbia Circuit Chief Judge Merrick Garland, the experienced, moderate candidate, whom President Obama nominated to replace Justice Antonin Scalia. Because Judge Koh is an exceptional, consensus nominee—and the Ninth Circuit must have its entire judicial complement to resolve promptly, inexpensively, and equitably the nation’s largest appellate docket—her confirmation process merits scrutiny.

This piece analyzes Koh’s impressive record, judicial selection under President Obama, and the Ninth Circuit’s present circumstances. The paper concludes that Judge Koh is a highly accomplished, mainstream candidate and the appellate court desperately needs all twenty-nine of its members. Republican senators, however, did not cooperate, particularly after they had captured an upper chamber majority in the 114th Congress, a situation that this presidential election year significantly aggravates. The last section, therefore, proffers recommendations for Judge Koh’s approval.

Development

by Kevin Golembiewski

This term, the Supreme Court will consider Fry v. Napoleon Community Schools. Fry implicates a circuit split on the proper scope of the exhaustion requirement in 20 U.S.C. § 1415(l) of the Individuals with Disabilities Education Act (IDEA). That section requires parents of students with disabilities to exhaust state administrative remedies “before the filing of a civil action . . . seeking relief that is also available under” the IDEA. Two different approaches to this requirement have emerged among the courts of appeals: an “injury-centered” approach and a “relief-centered” approach. Under the injury-centered approach, exhaustion is required when a child’s injuries are education-related. In contrast, the relief-centered approach demands exhaustion only if a parent seeks a form of relief that can be obtained under the IDEA. If the Supreme Court adopts the injury-centered approach in Fry, it should be cautious in its application of the approach. The Court’s application of the injury-centered approach could have important, unforeseen consequences for students with disabilities. The approach requires courts to consider what “educational” means under the IDEA—an analysis that bears on the scope of the IDEA’s substantive protections. And the Court has yet to provide guidance as to the definition of “educational.” Therefore, the Court’s application of the approach in Fry could have a significant impact on students’ access to special education services.

Development

by Peter G. Strasser

The “Cashgate” scandal has had far-reaching consequences for the southern African nation of Malawi and its people. Western donors suspended budgetary aid—circa $150 million annually—upon learning that civil servants and senior cabinet ministers in former President Joyce Banda’s administration had manipulated the government’s financial management system to embezzle more than $45 million over an eighteen-month period. As a precondition to the resumption of aid, the donors required that the government not only implement financial management reforms but also fully prosecute the perpetrators and recover the stolen assets. The donors’ position solidified when audits of Malawian government ledgers from 2009 to 2014 could not account for $356 million.

This essay examines whether Malawi’s Anti-Corruption Bureau (ACB) has the institutional capacity to achieve the prosecutorial benchmarks set by Western donors. Despite the obstacles inherent in an overstretched and underfunded criminal justice system, the ACB has made some progress, with fifteen convictions on theft and money laundering charges, and $1.4 million in cash and property recovered. Yet, as this essay observes, the quest to secure convictions and recover assets in the more complex cases of senior officials will become quixotic unless the government provides the ACB with sufficient independence, authority, and resources. Lacking ACB operational success, donors seem disinclined to resume direct budgetary support to Malawi. And as Western countries retract, China moves in, extending its influence.

Development

by Wee Jin Yeo

The territoriality principle, basic to United States trademark law, provides that foreign uses of a trademark do not give the user trademark rights in the United States. An important exception to this principle is the well-known marks doctrine, which allows a foreign user to obtain priority rights in the United States over a mark used exclusively overseas, if it has achieved a measure of renown in the United States. However, until now, it remains uncertain whether the doctrine is part of United States federal trademark law, given the split between the Ninth and the Second Circuits on the issue.

On March 23, 2016, the Fourth Circuit handed down the decision of Belmora LLC v. Bayer Consumer Care AG, which protected foreign marks neither registered nor used in the United States.

This Article takes this timely opportunity to revive the debate on the applicability of the well-known marks doctrine in trademark law. Analyzing the Fourth Circuit’s decision, this Article argues that it provides a useful insight on how the circuit split should be resolved, but cautions future courts not to mechanically apply the Fourth Circuit’s decision.

Development

by Colin Miller

On January 13th, 2016, the Supreme Court of the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court cannot answer this question in the affirmative without overturning precedent holding that the U.S. government can unilaterally impose the Federal Death Penalty Act in Puerto Rico. In other words, the Court cannot deprive Puerto Rican citizens of the protection of the Double Jeopardy Clause unless it adopts the concept of popular sovereignty.

Development

by Carl Tobias

In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a Sunday night, merely two days after Roush swore her oath of office, Republican General Assembly leaders proclaimed their caucuses’ intention to elect another individual, despite conceding that Roush was very qualified. During the August special session, this concerted GOP endeavor prompted a Republican senator to join Democrats who opposed the prospect and concomitantly adjourned. GOP leaders then contended that legislators remained in session, as the Virginia Constitution explicitly prescribes Senate and House of Delegates consent to adjourn. The Governor’s Counsel next penned an opinion that concluded that lawmakers had adjourned, so McAuliffe could appoint Justice Roush to the Court again, a choice that he implemented thirty days after adjournment. Because these efforts precipitated a constitutional standoff and will consequently plague future judicial selection, they warrant analysis.

The initial part of this Article chronicles the rise and evolution of Virginia court selection. Part Two scrutinizes recent machinations, determining that the procedures now merit improvement. The last section proffers suggestions. For the near term, the Assembly ought to promptly elect Roush. She brings twenty-two years of judicial service, including over five months as a justice. Moreover, Roush’s removal for reasons unrelated to her abilities, earlier performance, or future capacity to serve would make a mockery of the selection regime, undermining citizen respect for it, the whole state judiciary, as well as the Governor and the Assembly. Across the longer term, the Commonwealth must evaluate and initiate changes that will enhance selection.

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