BCLR Electronic Supplement

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.

Boston College Law Review

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

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that the decision in Fox was correct and appropriately set the stage for the Supreme Court to overturn a seemingly outdated precedent set in the Court’s 1978 decision, FCC v. Pacifica Foundation.

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

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.

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

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.

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 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.

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

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.

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

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.

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

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.

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

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.

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

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.