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Volume 63, Issue 2
Speak Now or Hold Your Peace: Prearbitration Express Waivers of Evident-Partiality Challenges

 By Edward C. Dawson | 63 Am. U. L. Rev. 307 (2013)

This Article proposes that parties and arbitrators should use, and courts should enforce, express prearbitration waivers of certain evident-partiality challenges as a way to avoid uncertainty and expense caused by widely-acknowledged disarray in the doctrine of evident partiality. Courts considering evident-partiality cases mainly have focused on (and disagreed about) the content of the doctrine and the circumstances in which a party can constructively waive an evident-partiality challenge by failing to object to an arbitrator despite knowing about a particular relationship. Similarly, the academic literature examining evident partiality has focused on the appropriate judicial test for assessing partiality, rules for defining the scope of an arbitrator’s duty to disclose, and proposals for reconciling the division in the courts.

Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act

 By Stacy E. Seicshnaydre  | 63 Am. U. L. Rev. 357 (2013)

 After four decades of unanimity in the circuit courts, with several denials of certiorari by the Supreme Court, the Court has recently granted certiorari in two cases to resolve the apparently settled question of whether the disparate impact theory is cognizable under the Fair Housing Act (FHA). Although these two recent cases, Magner v. Gallagher and Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., may have raised questions about the potential reach of disparate impact theory, they are not representative FHA cases with respect to their outcomes or their facts. The circuit courts in both cases reversed summary judgment and reinstated plaintiffs’ disparate impact claims, which is exceedingly rare given its occurrence only twice before in forty years.

The Illusory Eighth Amendment

By John F. Stinneford | 63 Am. U. L. Rev. 437 (2013)

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive
punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. 

COMMENT: Checking the DHS: Constitutional and Subconstitutional Approaches to Resolving Whether Noncitizens in Removal Proceedings Can Obtain Effective Judicial Review of Naturalization Decisions

By Michael Castle Miller | 63 Am. U. L. Rev. 497 (2013)

Forgotten in the current legislative debates regarding immigration policy is a deep divide among seven federal circuits over whether immigrants who face deportation, after applying for and being denied citizenship, can obtain judicial review of the citizenship denial. Under a plain reading of the Immigration and Nationality Act, the answer seems to be yes—courts must exercise de novo review notwithstanding the pendency of removal proceedings. One provision prevents the U.S. Department of Homeland Security (DHS) from considering applications filed by people facing deportation, but nothing limits federal courts’ powers when the DHS has already made a decision on the application or has delayed making a decision for a reason unrelated to the pending removal proceedings. 

COMMENT: If it Quacks Like a Duck: Reviewing Health Care Providers' Speech Restrictions Under the First Prong of Central Hudson

By Shawn L. Fultz | 63 Am. U. L. Rev. 563 (2013)

The First Amendment protects the speech of health care providers. This protection can limit states’ abilities to protect patients from harmful therapies involving speech, such as sexual orientation change efforts. Because providers’ speech is more similar to commercial speech than traditional political discourse, it is possible to create a First Amendment review analysis that better balances states’ police powers with providers’ First Amendment rights. Under a “single-prong” approach, the first prong of Central Hudson can be used to identify quackery, which is analogous to false or misleading commercial speech and would therefore be outside the protection of the First Amendment. Because health care must be tailored to individual patients, restrictions on speech that survive the first prong of Central Hudson would be subject to strict scrutiny in order to leave the therapeutic decision to the provider and her patient, and maintain consistency with current jurisprudence. 

COMMENT: Governing from the Pulpit: How the First Circuit in ACLU of Massachusetts v. U.S. Conference of Catholic Bishops Failed to Prevent a Government Agency from Unconstitutionally Contracting its Duties to a Religious Institution

By Anna M. Lashley | 63 Am. U. L. Rev. 607 (2013)

When the government delegates its discretionary power to religious institutions, it violates a fundamental right guaranteed by the First
Amendment of the U.S. Constitution—the freedom from government entanglement with religion. The Establishment Clause of the First Amendment
was written to protect religious freedom from intrusion by the government by preventing, to the extent possible, the imposition of either the church or the government into the confines of the other. This separation between church and state is essential to preserve the liberty of the American people and to ensure that the nation stays true to its Constitution. 

In 2009, the U.S. Department of Health and Human Services (HHS) violated the Establishment Clause when it formed a master contract with the U.S. Conference of Catholic Bishops (USCCB). This contract authorized the USCCB to allocate federal funds to subcontractors pursuant to the Trafficking Victims Protection Act of 2000, a discretionary duty originally assigned to the HHS.