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'Marbury V. Madison' Returns! The Supreme Court Considers the Scope of 'Judicial' Power [January 16, 2018]
"Every first-year law student learns about 'Marbury v. Madison'. In the landmark 1803 opinion by Chief Justice John Marshall, the Supreme Court established the basis for judicial review and set out the limitations of its own jurisdiction, forming the foundation for the Court's role in U.S. government. It now appears that the scope of one of the major holdings of Marbury is back before the Supreme Court. In 'Dalmazzi v. United States', an appeal from the Court of Appeals for the Armed Forces (the 'CAAF'), consolidated with 'Ortiz v. United States' and 'Cox v. United States', the Court has taken the relatively unusual step of granting a third party amicus, University of Virginia (UVA) law professor Aditya Bamzai, oral argument time in which to argue that Marbury's interpretation of the Supreme Court's jurisdiction under Article III prevents the Court from exercising jurisdiction in any appeal from the CAAF."
Library of Congress. Congressional Research Service
Freeman, Wilson C.
2018-01-16
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Enforcing Federal Privacy Law-- Constitutional Limitations on Private Rights of Action [May 31, 2019]
From the Document: "Over the last two years, the prospect of a comprehensive federal data privacy law has been the subject of considerable attention in the press and in Congress. Some Members of Congress and outside groups have developed many proposals in the last six months alone. Some of the proposed legislation would limit companies' ability to use personal information collected online, require that companies protect customers from data breaches, provide certain disclosures about their use of personal information, or allow users to opt out of certain data practices. Some proposals combine all of those elements or take still different approaches."
Library of Congress. Congressional Research Service
Freeman, Wilson C.
2019-05-31
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Travel Ban Case and Nationwide Injunctions [May 2, 2018]
"On Wednesday, April 25, 2018, the Supreme Court heard oral argument in the 'travel ban' case, 'Trump v. Hawaii.' While the case presents many significant issues, one [...] extends beyond the immigration context, is the cert petition's third question: 'Whether the global injunction [issued by the lower court] is impermissibly overbroad.' This question centers on the propriety of the 'nationwide injunction,' [...] which is an issue of rising importance throughout the law. This Sidebar addresses when, if ever, a regional federal trial judge adjudicating a case involving the federal government can award nationwide injunctive relief--a court order that commands a party to take or refrain from taking some action throughout the country. In the context of a suit against the federal government, an injunction with this type of 'universal' effect acts to effectively void the law or policy in question. When a plaintiff brings a facial challenge to a federal law or policy, courts in recent years have generally held that district courts have 'considerable discretion in fashioning suitable relief,' including the power to provide for an injunction against enforcing the federal law or policy nationwide. Some courts and commentators have begun to argue, however, that this approach has gone too far, and district courts should only have the power to enjoin the government's conduct with respect to the parties before the court. Scholarly debate on this question has intensified in recent years as the 'nationwide injunction' has become more common. This Sidebar briefly explores the nationwide injunction at issue in the travel ban case and surveys a handful of the scholarly and judicial arguments surrounding the nationwide injunction in general."
Library of Congress. Congressional Research Service
Freeman, Wilson C.
2018-05-02
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Epic Decision from the Supreme Court: the Supreme Court Rules Employee Class Action Waivers Are Enforceable [May 31, 2018]
"Can agreements between employers and employees to arbitrate their disputes in lieu of class action lawsuits and other collective actions be enforced in court? In Epic Systems Corp. v. Lewis, decided on May 21, 2018, the Supreme Court answered in the affirmative, holding that the Federal Arbitration Act of 1925 (FAA) generally requires the enforcement of arbitration agreements between employers and employees, even when such agreements preclude actions brought collectively by employees against their employer. Epic Systems, although focused on employment contracts, implicates a broader debate about the efficacy of arbitration agreements, particularly in the class action context. The case is the latest in a series of 5-4 decisions from the Court applying the FAA to enforce the application of a bilateral arbitration clause waiving class or collective proceedings. Each of these cases turned on the Court's view that arbitration is fundamentally an informal, bilateral procedure, and that the FAA is generally not displaced by other federal statutes without explicit statutory language to the contrary. In this vein, Epic Systems has potentially important implications for Congress across many of the fields in which Congress legislates. As discussed in more detail below, the case's broad view of the FAA's reach, the Court's interpretation of how the 1925 statute interacts with other federal statutes, and the case's implications for how arbitration agreements can be used to limit the availability of collective legal action all underscore the significance of arbitration agreements that preclude litigation (including class litigation) in a court of law."
Library of Congress. Congressional Research Service
Freeman, Wilson C.
2018-05-31
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'Huawei V. United States': The Bill of Attainder Clause and Huawei's Lawsuit Against the United States [March 14, 2019]
From the Document: "On March 6, 2019, Chinese electronics manufacturing and telecommunications giant Huawei Technologies Co. (Huawei) filed a lawsuit against the United States, challenging the constitutionality of a law that restricts federal agencies from doing business with the company. The law in question identifies Huawei and Chinese telecommunications company ZTE by name, prohibiting executive agencies from using Huawei's (or ZTE's) products and from contracting with entities that use such products. Although Huawei's complaint against the United States makes several arguments, they primarily argue that the law's restrictions amount to an unconstitutional 'bill of attainder.'"
Library of Congress. Congressional Research Service
Freeman, Wilson C.
2019-03-14
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Logan Act: An Overview of a Sometimes Forgotten 18th Century Law [January 12, 2018]
From the Document: "The Logan Act, which has been the subject of much recent debate, generally makes it illegal for U.S. citizens to engage in unauthorized diplomacy with foreign countries with intent to 'influence the measures or conduct' of a foreign government or to 'defeat the measures of the United States . . . .' Prosecutors have only brought two Logan Act indictments since its enactment, neither of which led to conviction. As stated by one commentator, the Act has been called a 'dead letter,' an 'anachronism,' a 'curious federalist antique,' 'the most moribund of federal statutes,' and an 'eighteenth century relic that slumbers in splendid disregard.' Others have noted that the statute is not completely moribund--the State Department has occasionally enforced the Logan Act's prohibitions by way of passport suspensions and travel restrictions, and there has been a successful court martial of a U.S. serviceman for conduct of the kind barred by the statute. But regardless of the debate over the Logan Act's precise history, its sparse use in its intended criminal context is undisputed, which raises significant legal questions for Congress. This Sidebar explores the Logan Act, and addresses why the statute has had such limited usage, including a brief explanation of some of the constitutional concerns that surround the law. Finally, this Sidebar concludes with a discussion of what Congress could do to modify the statute to make it less susceptible to some of these concerns."
Library of Congress. Congressional Research Service
Freeman, Wilson C.
2018-01-12
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Supreme Court October Term 2017: A Review of Selected Major Rulings [September 19, 2018]
"On October 2, 2017, the Supreme Court began one of the most notable terms in recent memory. The latest term of the Court was the first full term for Justice Neil Gorsuch,who succeeded Justice Antonin Scalia following his death in February 2016. The October Term 2017 was also the last term for Justice Anthony Kennedy, who retired in July 2018. With nine Justices on the Court for the first time at the beginning of a term since October 2015, this past term witnessed the High Court issuing fewer unanimous opinions and more rulings that were closely divided relative to previous terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Cole, Jared P. . . .
2018-09-19
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Data Protection and Privacy Law: An Introduction [May 9, 2019]
From the Document: "Recent controversy surrounding how third parties protect the privacy of individuals in the digital age has raised national concerns over legal protections of Americans'electronic data. The current legislative paradigms governing cybersecurity and data privacy are complex and technical, and lack uniformity at the federal level. This In Focus provides an introduction to data protection laws and an overview of considerations for Congress."
Library of Congress. Congressional Research Service
Mulligan, Stephen P.; Linebaugh, Chris D.; Freeman, Wilson C.
2019-05-09
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Data Protection Law: An Overview [March 25, 2019]
From the Document: "Recent high-profile data breaches and other concerns about how third parties protect the privacy of individuals in the digital age have raised national concerns over legal protections of Americans' electronic data. Intentional intrusions into government and private computer networks and inadequate corporate privacy and cybersecurity practices have exposed the personal information of millions of Americans to unwanted recipients. At the same time, internet connectivity has increased and varied in form in recent years. Americans now transmit their personal data on the internet at an exponentially higher rate than in the past, and their data are collected, cultivated, and maintained by a growing number of both 'consumer facing' and 'behind the scenes' actors such as data brokers. As a consequence, the privacy, cybersecurity and protection of personal data have emerged as a major issue for congressional consideration."
Library of Congress. Congressional Research Service
Mulligan, Stephen P.; Freeman, Wilson C.; Linebaugh, Chris D.
2019-03-25
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Antitrust and 'Big Tech' [September 11, 2019]
From the Document: "Over the past decade, Google, Amazon, Facebook, and Apple ('Big Tech' or the 'Big Four') have revolutionized the internet economy and affected the daily lives of billions of people worldwide. While these companies are responsible for momentous technological breakthroughs and massive wealth creation, they have also received scrutiny related to their privacy practices, dissemination of harmful content and misinformation, alleged political bias, and--as relevant here--potentially anticompetitive conduct. In June 2019, the Wall Street Journal reported that the Department of Justice (DOJ) and Federal Trade Commission (FTC)--the agencies responsible for enforcing the federal antitrust laws--agreed to divide responsibility over investigations of the Big Four's business practices. Under these agreements, the DOJ reportedly has authority over investigations of Google and Apple, while the FTC will look into Facebook and Amazon."
Library of Congress. Congressional Research Service
Freeman, Wilson C.; Sykes, Jay B.
2019-09-11
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Federalism-Based Limitations on Congressional Power: An Overview [September 27, 2018]
"The U.S. Constitution establishes a system of dual sovereignty between the states and the federal government, with each state having its own government, endowed with all the functions essential to separate and independent existence. Although the Supremacy Clause of the Constitution designates 'the Laws of the United States' as 'the supreme Law of the Land,' other provisions of the Constitution--as well as legal principles undergirding those provisions--nonetheless prohibit the national government from enacting certain types of laws that impinge upon state sovereignty.The various principles that delineate the proper boundaries between the powers of the federal and state governments are collectively known as 'federalism.' Federalism-based restrictions that the Constitution imposes on the national government's ability to enact legislation may inform Congress's work in any number of areas of law in which the states and the federal government dually operate."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Kevin M.; Sykes, Jay B. . . .
2018-09-27
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Congressional Participation in Litigation: Article III and Legislative Standing [Updated November 8, 2019]
From the Summary: "Houses, committees, and Members of Congress periodically seek to initiate or participate in litigation for various purposes, such as advancing their legislative objectives, challenging alleged transgressions of their legislative prerogatives, or defending core institutional interests. However, the constitutionally based doctrine of 'standing' may prevent legislators from pursuing litigation in federal court. The standing doctrine requires a litigant seeking federal judicial relief to demonstrate (1) a concrete and particularized and actual or imminent injury-in-fact (2) that is traceable to the allegedly unlawful actions of the opposing party and (3) that is redressable by a favorable judicial decision. The U.S. Supreme Court and the lower federal courts have issued several important opinions analyzing whether--and under what circumstances--a legislative entity has standing to seek judicial relief."
Library of Congress. Congressional Research Service
Freeman, Wilson C.; Lewis, Kevin M.
2019-11-08
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Sexual Harassment and Title VII: Selected Legal Issues [April 9, 2018]
"This report addresses various legal issues related to sexual harassment and Title VII of the Civil Rights Act of 1964 (Title VII), the federal statute that generally prohibits discrimination in the workplace, including discrimination based on sex. As the statute contains neither an express prohibition against harassment nor a definition of harassment, this report examines (1) how the Supreme Court and federal appellate courts have mapped out the scope of protection that Title VII provides employees against sexual harassment, including the Supreme Court's 'severe or pervasive' standard that harassment victims must meet to show a Title VII violation (which applies to most Title VII sexual harassment claims); (2) limits on employer liability for harassment; and (3) retaliation for reporting harassment, among other issues."
Library of Congress. Congressional Research Service
Back, Christine J.; Freeman, Wilson C.
2018-04-09
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Addressing Sexual Harassment by Modifying the Congressional Accountability Act of 1995: A Look at Key Provisions in H.R. 4924 [February 7, 2018]
"Recently, some Members of the House announced H.R. 4822 (the Congressional Accountability Act of 1995 Reform Act), one of the most recent bills to propose potentially significant amendments to the Congressional Accountability Act of 1995 (CAA), including to how harassment claims would be addressed and resolved in the legislative branch. [...] Though a number of other measures have been introduced in the House to amend the CAA, particularly as it relates to settlements, H.R. 4822, a 58-page bill, proposes changes that would affect many aspects of the CAA. This Sidebar highlights and considers some of the major differences between the current process provided under the CAA and the process that would exist if H.R. 4822 were enacted, as well as other changes proposed by the bill that could affect both legislative branch employees and Members of Congress."
Library of Congress. Congressional Research Service
Back, Christine J.; Freeman, Wilson C.
2018-02-07
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Addressing Sexual Harassment by Modifying the Congressional Accountability Act of 1995: A Look at Key Provisions in H.R. 4822 [January 29, 2018]
"Recently, some Members of the House announced H.R. 4822 (the Congressional Accountability Act of 1995 Reform Act), one of the most recent bills to propose potentially significant amendments to the Congressional Accountability Act of 1995 (CAA), including to how harassment claims would be addressed and resolved in the legislative branch. On February 5, 2018, the bill is scheduled for markup by the House Administration Committee. For most of its history, Congress had exempted itself, and the United States as a whole, from workplace discrimination laws. The legal landscape changed in 1995 when Congress passed the CAA, which extended antidiscrimination laws, including the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990, among others, to legislative branch employees. While these federal laws have been interpreted to prohibit much harassment in the workplace, in recent months, many commentators have pointed to the possible inadequacy of the CAA's procedures concerning how claims of harassment are handled and resolved. In particular, criticism has been raised about the CAA's allowance for confidential settlements with victims, payments for those settlements with taxpayer funds, and the CAA's provision for mandatory counseling and mediation in response to a complaint."
Library of Congress. Congressional Research Service
Freeman, Wilson C.; Back, Christine J.
2018-01-29
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Congressional Participation in Litigation: Article III and Legislative Standing [Updated March 28, 2019]
From the Document: "This report provides an overview of the standing doctrine as it applies to lawsuits involving legislators, committees, and houses of Congress. First, the report lays out the general rules of standing as they apply in every case in the federal courts and the main purpose behind the doctrine. One central purpose of the standing doctrine--protecting the court's role in the constitutional balance of powers--is a theme that underlies this report, as many of these cases involve courts deciding whether they have the power to adjudicate high-profile political disputes between the other two branches of the federal government. Next, the report considers the relatively few Supreme Court cases to discuss legislator standing, explaining the general principles that courts have drawn from those cases. The report then analyzes how lower courts have interpreted the limited Supreme Court case law on the issue, beginning with cases involving individual legislators, and following with cases brought by entire institutions, such as committees or houses of a legislature. The report then considers other issues relating to legislator participation in litigation, such as intervention under the Federal Rules of Civil Procedure or participation purely as an 'amicus curiae,' or a 'friend of the court.' The report concludes by identifying unresolved doctrinal questions and offering takeaways for prospective congressional litigants."
Library of Congress. Congressional Research Service
Freeman, Wilson C.; Lewis, Kevin M.
2019-03-28
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Class Actions Are Back at the Supreme Court: Statutory Time Limits and 'Serial Relitigation' of Class Certification [March 12, 2018]
"Class action lawsuits - i.e., lawsuits by representative parties on behalf of all members of a class of similar plaintiffs that have aggregated their claims in one case-- have been a major focus of both Congress and the courts of late. The House of Representatives, for example, last year passed the Fairness in Class Action Litigation Act (H.R. 985), proposing significant changes to the device. Meanwhile, the Supreme Court has given class actions similar attention, issuing dozens of decisions over the past decade impacting prospective class plaintiffs and defendants alike."
Library of Congress. Congressional Research Service
Freeman, Wilson C.
2015-03-12
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Class Action Lawsuits: A Legal Overview for the 115th Congress [April 11, 2018]
"This report serves as a primer on class action law and analyzes areas that have been the focus of congressional discussions concerning class actions. The report first discusses the broader public policy debate over class actions, including why class actions exist and what risks they pose to the American system of civil justice. The report then details what a plaintiff is required to show under the Federal Rules of Civil Procedure in order to achieve class action 'certification'--that is, in order to pursue an action on behalf of an entire class. Throughout, the report addresses the ways in which the Supreme Court and lower federal courts have attempted to balance the benefits of class actions against their potential drawbacks."
Library of Congress. Congressional Research Service
Lewis, Kevin M.; Freeman, Wilson C.
2018-04-11
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Lawsuits Against the Federal Government: Basic Federal Court Procedure and Timelines [October 28, 2019]
From the Document: "In Alexis De Tocqueville's classic 1835 work, 'Democracy in America', the author observed how important judicial procedures were to the United States political fabric: 'There is virtually no political question in the United States that does not sooner or later resolve itself into a judicial question.' This quote resonates today as the courts continue to be the center of a number of closely watched matters. In recent years, plaintiffs have brought cases challenging, for instance, the President's proclamation restricting the entry of certain non-U.S. nationals into the United States, the Secretary of Commerce's decision to include a citizenship question on the 2020 Census, and the President's decision to expend certain funds for constructing a 'border wall.' Because the defendant in these cases is invariably the United States or an executive official, they generally proceed in federal courts. Understanding the common procedures governing the federal courts allows legislative branch observers to plan for potential outcomes, estimate timelines, and appreciate the importance of a court's ruling at a particular stage. This In Focus reviews the most common procedures that govern such cases, tracing the path from federal district court to the Supreme Court."
Library of Congress. Congressional Research Service
Freeman, Wilson C.
2019-10-28
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