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Journal of Law and Social Justice

volume 32 electronic supplement 2012

The Right to Counsel?: The Eighth Circuit Allows Uncounseled Tribal Court Convictions to Satisfy Elements of Federal Offenses

On July 6, 2011, in United States v. Cavanaugh, the U.S. Court of Appeals for the Eighth Circuit held that prior, uncounseled tribal court convictions could be used to establish an element of a subsequent federal offense. In so doing, the court deemphasized the importance of reliability concerns in determining the validity of uncounseled convictions.

Melissa Dess

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The "Bizarre Result": The Alien Tort Statute, The Westfall Act, and the Problem of Wartime Detentions in Ali v. Rumsfeld

On June 21, 2011, in Ali v. Rumsfeld, the U.S. Court of Appeals for the District of Columbia held that constitutional protections do not apply to noncitizen enemy detainees in a foreign theater of war, and that the Westfall Act immunizes federal employees from suits brought by such detainees under the Alien Tort Statute. This decision adds to the uncertainty about what recourse, if any, noncitizen enemy detainees have for abuses committed by their U.S. military captors.

Kyle T. Sullivan

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Lowering the Bar Behind Bars: Chao v. Ballista and Prison Official Liability in All-Female Prisons

On March 25, 2011, in Chao v. Ballista, the U.S. District Court for the District of Massachusetts denied defendant prison officials’ motion for summary judgment on an inmate’s Eighth Amendment claims of sexual misconduct, and a jury held a prison superintendent liable for failure to protect the inmate from a prison guard’s sexual abuse. Although the district court drew thoughtful attention to the unique vulnerabilities of female inmates, the court implicitly expanded the Supreme Court’s Farmer v. Brennan standard for deliberate indifference in failure to protect claims, potentially lowering the bar for establishing Eighth Amendment violations by prison officials in all-female facilities.

Eliza Murray

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In Water Wheel, The Ninth Circuit Corrects a Limitation on Tribal Court Jurisdiction

On June 10, 2011, in Water Wheel Camp Recreational Area, Inc. v. LaRance, the U.S. Court of Appeals for the Ninth Circuit held that a tribal court had jurisdiction over a non-Indian corporation and its non-Indian president through the tribe’s inherent authority to exclude and manage its land. The Ninth Circuit limited the application of Montana v. United States, a case restricting tribal authority, to situations involving non-tribal land or to situations in which competing state interests are at play. In so doing, the court gave tribal courts the breadth of power Congress intended.

Blair M. Rinne

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The Ninth Circuit's Redundant Remand in E.M. v. Pajaro Unifed Valley School District Sends an Important Message

On July 14, 2011, in E.M. ex rel. E.M. v. Pajaro Valley School District, the U.S. Court of Appeals for the Ninth Circuit remanded a case because the district court applied an improper standard in determining whether a clinical psychologist’s report constituted “additional evidence” under the Individuals with Disabilities Education Act. In so doing, the Ninth Circuit broadly defined the “additional evidence” courts must consider in hearing IDEA claims.

Edward Dunn

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Non-Strict Strict Scrutiny: The Fifth Circuit and the Grutter Standard in Fisher v. University of Texas at Austin

On January 18, 2011, in Fisher v. University of Texas at Austin, the U.S. Court of Appeals for the Fifth Circuit held that a university’s admissions policy was constitutional because it had a compelling interest in achieving a critical mass of minority students and did not strive for out-right racial balancing for its own sake. Although the Fifth Circuit’s holding aligns with the Supreme Court’s standard in Grutter v. Bollinger, it exemplifies how Grutter discourages universities from experimenting to create better race-conscious admissions policies.

Michelle Parilo

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One Strike, You're Out: The Ninth Circuit Denies Second Chance for First-Time Drug Offenders

On July 14, 2011, in Nunez-Reyes v. Holder, the U.S. Court of Appeals for the Ninth Circuit filed an en banc opinion overruling Lujan-Armendariz v. INS in holding that, for immigration purposes, constitutional equal protection did not require treating state drug crime convictions that are expunged under state law the same as federal convictions expunged under the Federal First Offender Act. The court also overruled Rice v. Holder, holding that being under the influence of a drug is not a lesser offense than simple possession. In so doing, the Ninth Circuit frustrated Congress’s intent in enacting the Federal First Offender Act, and hindered courts’ ability to ensure equal protection of similarly situated aliens.

Vera Zavin

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Vocational Schools Are No Vacation: Determining Who Really Benefits from Student Labor

On April 28, 2011, in Solis v. Laurelbrook Sanitarium & School, Inc., the U.S. Court of Appeals for the Sixth Circuit held that students who worked as part of the curriculum at a religious-based boarding school were not employees under the Fair Labor Standards Act. In so holding, the Sixth Circuit expressly endorsed the “primary benefit” test for determining whether trainees are employees for purposes of the FLSA. The primary benefit test effectuates the purpose of the FLSA, provides courts with the flexibility to prevent employers from exploiting workers, and ultimately benefits employees and students like those at Laurelbrook. Nevertheless, the test does little to clarify Congress’s circular definitions of “employ” and “employee,” leaving employers and schools like Laurelbrook without much guidance.

Hilary Weddell

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