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The following twenty Comments make up the first issue of the Boston College Law Review’s electronic supplement, the E. Supp. These Comments, written by second-year students, comprise a survey of recent federal en banc decisions of note, and other significant cases. Each Comment is intended to present a clear overview of the decision, a discussion of the important issues, and a meaningful perspective on its consequences for litigants.

In United States v. Textron, the First Circuit handed the IRS a victory by subjecting companies’ tax accrual workpapers to discovery in tax litigation, creating potential concerns for companies in non-tax settings. In Fox Television Stations, Inc. v. FCC, the Second Circuit struck down the FCC’s latest attempt to regulate indecent speech, signaling a major win for broadcasters and putting one more crack in the Supreme Court’s Pacifica precedent.


First Circuit

Hand Over Your Tax Accrual Workpapers: The First Circuit in United States v. Textron Exposes Dual-Purpose Documents to Discovery

On August 13, 2009, the First Circuit in United States v. Textron Inc. held that tax accrual workpapers are not protected from discovery under the attorney work-product privilege. In so doing, the court eviscerated the last line of protection for dual-purpose tax documents from the prying eyes of the IRS and opposing parties in litigation.

Kerry L. Killeen

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Second Circuit

Silencing Fox: The Chilling Effect of the FCC's Indecent Speech Policy

On July 13, 2010, the U.S. Court of Appeals for the Second Circuit in Fox Television Stations, Inc. v. FCC struck down the FCC’s indecent speech policy, reasoning that the policy was unconstitutionally vague. The Second Circuit’s decision has been viewed as a victory for broadcasters and others who thought the FCC’s indecent speech policy suppressed constitutionally protected speech. This Comment argues that the decision in Fox was correct and appropriately set the stage for the Supreme Court to overturn a seemingly outdated precedent set in the Court’s 1978 decision, FCC v. Pacifica Foundation.

Christopher Hiserman

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Third Circuit

Treading Murky Waters: The Third Circuit's Search for When a Claim Arises in In re Grossman's, Inc.

On June 2, 2010, the U.S. Court of Appeals for the Third Circuit in In re Grossman’s, Inc. held that despite a post-petition manifestation of injury, the tort claims of a woman allegedly exposed to a Chapter Eleven debtor’s asbestos-containing products arose pre-petition. In so holding, the court reasoned that a claim arises when an individual is exposed pre-petition to a debtor’s product giving rise to an injury, thus overruling its 1984 decision in In re M. Frenville Co. This Comment argues that although the court examined two tests before determining when a claim arises under the Bankruptcy Code, it left the state of claim accrual law in the contingent tort claims context unclear.

Alexandra E. Olson

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Fourth Circuit

Dust in the Wind: Is TVA's Permit Shield a Death Knell for Interstate Public Nuisance Claims?

On July 26, 2010, the U.S. Court of Appeals for the Fourth Circuit, in North Carolina ex rel. Cooper v. Tennessee Valley Authority, held not only that the Clean Air Act (CAA) preempts state nuisance law, but also that the issuance of a CAA permit makes a public nuisance legally and theoretically impossible. In doing so, the Fourth Circuit established a considerable barrier to public nuisance suits. This Comment analyzes the legal viability of this decision and the implications of barring public nuisance in light of its growing popularity to address interstate air pollution and climate change.

Erin Dewey

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Fifth Circuit

The Parent Trap: Constitutional Violations and the Federal Tort Claims Act's Discretionary Function Exception

On June 2, 2010, the U.S. Court of Appeals for the Fifth Circuit sitting en banc in Castro v. United States held that the discretionary function exception to the Federal Torts Claims Act (FTCA) does not subject the United States to liability when a government employee, acting within his discretion, commits a constitutional violation, even if that violation is coupled with a state tort claim. The dissent asserted that such constitutional violations should not be understood to be within the discretion of a government employee to commit.  This Comment argues that the majority approach is correct, as it is the most consistent with Supreme Court precedent and the purposes of the FTCA.

Brian Shea

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Seventh Circuit

Incommensurable Uses: RLUIPA's Equal Terms Provision and Exclusionary Zoning in River of Life Kingdom Ministries v. Village of Hazel Crest

On July 2, 2010, the U.S. Court of Appeals for the Seventh Circuit in River of Life Kingdom Ministries v. Village of Hazel Crest held that the “equal terms” provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) requires a comparison of religious and secular land uses with respect to any accepted zoning criteria. In so doing, the Seventh Circuit confronted a circuit split in the application of the equal terms provision and carved out a compromise between competing concerns about control over land-use regulations. This Comment discusses the difficulty of equal treatment within the context of exclusionary zoning and argues that River of Life puts control over zoning regulations into the courts and out of the hands of religious institutions.

Tokufumi J. Noda

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Shooting Heller in the Foot?: Applying and Misapplying District of Columbia v. Heller's "Presumptively Lawful" Dicta in United States v. Skoien

On July 13, 2010, an en banc panel of the U.S. Court of Appeals for the Seventh Circuit in United States v. Skoien upheld 18 U.S.C. § 922(g)(9), a federal ban on the possession of firearms by domestic violence misdemeanants, against a Second Amendment challenge. In reaching its holding, the Seventh Circuit declined to follow either of two analytical frameworks that lower courts have applied to Second Amendment challenges since the U.S. Supreme Court’s groundbreaking 2008 ruling in District of Columbia v. Heller. This Comment argues that, although the Skoien en banc opinion ignores an important piece of the Heller Court’s dicta, its analysis is generally faithful to Heller and should serve as a model for other courts of appeals until the Supreme Court provides additional guidance.

Frank Zonars

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Ninth Circuit

No Longer Playing Nevils Advocate: The Ninth Circuit Constricts Appellate Review for Insufficiency of Evidence Claims

On March 19, 2010, the U.S Court of Appeals for the Ninth Circuit in United States v. Nevils held that a reviewing court hearing criminal appeals on the grounds of insufficient evidence must resolve all factual conflicts in favor of the prosecution and ask only if any rational juror could have found the defendant guilty beyond a reasonable doubt. This decision makes it more difficult for the Ninth Circuit to reverse criminal convictions and ultimately preserves the jury’s proper role as the trier of fact.

Vincent M. Chiappini

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Perdomo v. Holder: A Step Forward in Recognizing Gender as a "Particular Social Group" Per Se

On July 12, 2010, the Ninth Circuit Court of Appeals, in Perdomo v. Holder, ruled that the Board of Immigration Appeals had erred in finding that an asylum applicant failed to establish membership in a “particular social group” under the Immigration and Nationality Act when she defined the social group as “all Guatemalan women.” This Comment argues that the BIA should use Perdomo as an opportunity to establish gender as a “particular social group” per se in order to address the inconsistency with which courts have defined this category in asylum cases involving gender-based persecution.

Minh T. Le

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Deferential Dilemmas: Pinholster v. Ayers and Federal Habeas Claims of Ineffective Assistance of Counsel After AEDPA

On December 9, 2009, the Ninth Circuit Court of Appeals, sitting en banc, concluded that Scott Lynn Pinholster had received deficient, prejudicial assistance of counsel at the penalty phase of his capital case, vacating an earlier decision by a panel of the Ninth Circuit. The U.S. Supreme Court subsequently granted certiorari to consider whether this was an appropriate application of both Strickland v. Washington and the Antiterrorism and Effective Death Penalty Act of 1996. This Comment argues that the latter en banc majority opinion more effectively ensures that capital defendants such as Pinholster are permitted to vindicate their Sixth Amendment rights to effective assistance of counsel because the position advocated by the dissent would largely erode these fundamental constitutional protections.

Katherine A. McAllister

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Lies, Damn Lies, and White Ink: The Convenient Fiction of Adjudication on the Merits in Murdoch v. Castro

On June 21, 2010, in Murdoch v. Castro, the U.S. Court of Appeals for the Ninth Circuit held that under the habeas reform provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), state court decisions presumptively adjudicate federal claims on the merits even where no state court has made any mention of the federal claim raised in the habeas petition. In so doing, the Ninth Circuit gives federal courts license to overlook errors, ignore contradictory state law and dismiss compelling constitutional claims raised by state prisoners. This Comment argues that following the approach advocated by Chief Judge Kozinski in dissent would better allow federal courts to keep faith with the goals of comity and federalism that motivated AEPDA.

Meredith Regan

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What Do 1.5 Million Wal-Mart Women Have in Common?: Dukes v. Wal-Mart Class Action Certification

On April 26, 2010, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc in Dukes v. Wal-Mart, held that Rule 23 commonality and typicality existed among 1.5 million women employees of Wal-Mart claiming gender discrimination in the company’s hiring and promotion practices. This Comment addresses the commonality prong and argues that courts should be reluctant to certify a class of plaintiffs in employment cases when a company’s hiring practices are as subjective and localized as Wal-Mart’s.

Kathryn Smith

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Eleventh Circuit

Dodging Due Process: How United States v. Dodge Pushes the Limits of Civil Regulation

On March 5, 2010, the U.S. Court of Appeals for the Eleventh Circuit in United States v. Dodge held that courts may take a noncategorical approach in determining whether a defendant qualifies as a sex offender under the Sex Offender Registration and Notification Act. Although a non-categorical approach is warranted by accepted standards of statutory construction, courts following a non-categorical approach in the future should be wary of violating due process. Given that registration requirements have certain punitive characteristics, defendants may be successful in due process challenges to registration decisions based on facts neither admitted by the defendant nor submitted to a jury. Moreover, registration decisions based on a defendant’s underlying conduct stray from prior Supreme Court reasoning suggesting that registration decisions based on conviction history alone are consistent with due process.

Eric French

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The Need for Sneed: A Loophole in the Armed Career Criminal Act

On March 24, 2010, the U.S. Court of Appeals for the Eleventh Circuit, in United States v. Sneed, held that courts may not use police reports to determine if prior offenses occurred on different occasions for the purposes of the Armed Career Criminal Act. In so doing, the court narrowed the class of offenders that qualify as career offenders and created a loophole that allows some offenders to avoid the ACCA’s mandatory minimum sentence if their previous offenses were not well documented in judicially approved sources. This Comment argues that in order to correct the problem of the Sneed loophole, the ACCA should be amended by Congress.

Emily Marano

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Wading Through the "Morass": The Eleventh Circuit Recognizes a Right to Candidacy in Randall v. Scott

On June 30, 2010, the U.S. Court of Appeals for the Eleventh Circuit in Randall v. Scott held that the First Amendment affords protection to an individual based on the mere basis of that individual’s political candidacy. In so doing, the Randall court departed from other circuit courts, which had approached the issue by way of analogy to the First Amendment freedoms of speech and association. This Comment concludes that the Eleventh Circuit’s novel approach, although well intentioned, is only tenuously grounded in Supreme Court precedent.

Kevin C. Quigley

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D.C. Circuit

Deference to the Rulemaker, Not the Rule: The D.C. Circuit's Enabling Rejection of the SEC's Fixed Indexed Annuities Rule in American Equity Investment Life Insurance Co. v. SEC

On July 12, 2010, the U.S. Court of Appeals for the District of Columbia, in American Equity Investment Life Insurance Co. v. SEC, vacated the Securities and Exchange Commission’s Rule 151A due to flaws in the SEC’s economic analysis of the rule. Rule 151A aimed to expand the SEC’s oversight to include purportedly “risky” hybrid annuity products— known as fixed indexed annuities—currently regulated by state insurance commissioners. In vacating the rule, however, the court actually embraced an expansive view of a federal agency’s authority to act in an area occupied by state regulation. This Comment argues that courts should avoid such deference when evaluating federal agency rules that threaten to encroach upon an area presumptively occupied by state law.

Sebastian Waisman

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Federal Circuit

Gilding the Lilly: The § 112 Written Description Requirement Separate from Enablement

On March 22, 2010, the U.S. Court of Appeals for the Federal Circuit, in Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., held that the first paragraph of 35 U.S.C. § 112 contains a written description requirement separate from the enablement requirement. In so doing, the court affirmed recent circuit precedent holding that a patentee must demonstrate possession of its invention at time of filing, in addition to enabling one of skill in the art to practice the invention. This Comment argues that the court’s stated bases inadequately support its holding and appear to skew the result towards Lilly, undermining the perceived justness of the decision.

Michael A. Greene

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District of Nebraska

The Beast of Undue Burden: Evaluating the Burden on the Physician in Planned Parenthood of the Heartland v. Heineman

On July 14, 2010, in Planned Parenthood of the Heartland v. Heineman, the U.S. District Court for the District of Nebraska issued a preliminary injunction halting the implementation of a bill that would have imposed on abortion providers new requirements for obtaining informed consent. The court held that the new, more rigorous informed consent requirements would have likely placed an undue burden on women seeking abortions. In doing so, the court implied that both the burden on the physician and on the patient were relevant to the undue burden analysis. This Comment argues that to determine whether a particular informed consent requirement places an undue burden on a woman’s ability to get an abortion, courts should evaluate its effect on both the woman and the doctor.

Leah Shabshelowitz

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Massachusetts Supreme Judicial Court

Commonwealth v. Runyan: Safe Storage Laws in the Crossfire of Second Amendment Litigation

The Massachusetts Supreme Judicial Court’s 2010 decision in Commonwealth v. Runyan upheld a state law requiring firearms to be securely locked when not in the possession of a legally authorized user. The court ruled that the Second Amendment does not apply against the states and that the safe storage law does not infringe upon an individual’s right to bear arms for self-defense. The U.S. Supreme Court’s recent ruling that the Second Amendment is incorporated against the states via the Fourteenth Amendment has cast the validity of Runyan into doubt. This Case Comment argues that the safe storage law implicated in Runyan does not infringe upon the rights protected by the Second Amendment as interpreted in recent Supreme Court decisions and concludes that the safe storage laws of other states—which are all less restrictive than the Massachusetts statute— remain constitutional.

Brian S. Kennedy

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New York Court of Appeals

Standing Pat in a Post-Kelo World: Preservation of Broad Eminent Domain Power in Kaur v. New York State Development Corp.

On June 24, 2010, the New York Court of Appeals in Kaur v. New York State Urban Development Corp. upheld a state taking of private property to expand Columbia University’s campus into the Manhattanville neighborhood of New York City. In doing so, the court reaffirmed precedent holding that the determinations of state agencies vested with the condemnation power are entitled to substantial judicial deference. This deferential posture assumed by the Court of Appeals helps preserve a broad power of eminent domain in New York.

Matthew Pickel

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