SCOTUS, Appellate Courts Cite Four BU Law Faculty in 2015
Scholarship by Professors Beermann, Collins, Dogan, and Lawson was cited in federal cases concerning issues from antitrust law to immigration policy.
Between May and July 2015, one Supreme Court justice and three federal appellate courts cited the scholarship of BU Law faculty in four separate cases, including the high-profile Jerusalem passport case.
Supreme Court Justice Clarence Thomas referenced arguments made by Professor Gary Lawson. Opinions issued by the US Court of Appeals for the Second Circuit cited the scholarship of Professors Stacey Dogan and Kristin Collins in cases involving big pharma/antitrust law and citizenship transmission. And the US Court of Appeals for the Fifth Circuit drew from work by Professor Jack Beermann in a decision regarding President Obama’s executive action on immigration.
The direct impact of Boston University School Law faculty’s scholarship on modern-day judicial review is nothing new. In fact, 60 percent of BU Law’s tenured faculty has been cited in federal court rulings.
Read below to learn more about each faculty member’s contribution to these recent cases.
Justice Clarence Thomas Cites Professor Gary Lawson’s Paper in Jerusalem Passport Case
Zivotofsky v. Kerry
Supreme Court of the United States
Decision – June 8, 2015
Work cited: The ‘Proper’ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause
In the recently decided Zivotofsky v. Kerry, Justice Clarence Thomas referenced a constitutional interpretation of congressional power proposed in a paper coauthored by Philip S. Beck Professor of Law Gary Lawson.
The 13-year legal battle began when the US State Department declined the Zivotofsky family’s application to have Israel listed as the place of birth on their son’s passport. Though the US government does not recognize any nation as having sovereignty over Jerusalem, Congress passed a law in 2002 that instructed the Secretary of State to allow US citizens born in Jerusalem to list “Israel” as their birthplace upon request.
On June 8, in a six-to-three decision, the Supreme Court struck down the law. In his partial concurrence/partial dissent, Justice Thomas agreed with the majority opinion that Congress may not compel the executive branch to issue a document that runs contrary to official foreign policy. But he also contends that the 2002 law goes beyond the jurisdiction granted to Congress by the “Necessary and Proper” clause (also known as the “Sweeping” Clause) of the Constitution.
Thomas’s interpretation of the Sweeping Clause is one proposed by Professor Lawson and his coauthor, Patricia Granger, in their 1993 paper, published in the Duke Law Review.
Read the full storyAppellate Court Opinion Cites Professor Stacey Dogan’s Antitrust Article in Big Pharma Alzheimer’s Drug Case
State of New York v. Actavis
US Court of Appeals for the Second Circuit
Decision – May 22, 2015
Work cited: Antitrust Law and Regulatory Gaming
The United States Court of Appeals for the Second Circuit recently cited an article coauthored by Professor Stacey Dogan in the case of State of New York v. Actavis, which concerns an antitrust action brought by the State of New York against top-ten global pharmaceutical manufacturer Actavis.
The company removed virtually all of its twice-daily drug designed to treat Alzheimer’s disease near the end of its patent exclusivity period, forcing Alzheimer’s patients to switch to the once-daily, freshly patented version of the drug. New York argued that Actavis’s forced-switch scheme violated antitrust laws because the once-daily version had no generic substitute.
Ruling in favor of New York, the court cited Dogan and coauthor Mark Lemley’s paper, “Antitrust Law and Regulatory Gaming,” three times in its decision, supporting the paper’s notion that “product hopping”—switching patients to new products in order to evade generic competition—can violate the antitrust laws.
Professor Jack Beermann Cited in Court Decision Blocking President Obama’s Executive Action on Immigration
State of Texas v. USA
US Court of Appeals for the Fifth Circuit
Decision – May 26, 2015
Work cited: Congressional Administration
Judge Stephen Higginson cited a 2006 paper by Harry Elwood Warren Scholar and Professor of Law Jack Beermann in his dissenting opinion in a federal immigration case, State of Texas v. USA.
The central issue in the case was President Obama’s executive action on immigration, which would have directed the Department of Homeland Security to prioritize the deportation of undocumented felons while offering paths to citizenship for certain undocumented parents of US citizens and parents of legal permanent residents. The Fifth Circuit’s three-judge panel upheld the lower court’s decision to block the executive order by a two-to-one vote, Judge Higginson being the lone dissenter.
Judge Higginson’s dissent draws from Professor Beermann’s examination of the balance of federal powers in“Congressional Administration.” He argues that the case should not have been adjudicated, but should have been left to the federal political branches “so that nationwide concerns and practicalities are weighed, Congress’s purse dispensed as it chooses, and the Executive refines its enforcement priorities or is compelled by Congress to do so.”
US Court of Appeals Cites Professor Kristin Collins’s Scholarship in Citizenship Transmission Case
Morales-Santana v. Lynch
US Court of Appeals for the Second Circuit
Decision – July 8, 2015
Article cited: Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation
Professor Kristin Collins’s 2014 Yale Law Journal article, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” was cited multiple times by the United States Court of Appeals for the Second Circuit in its July 8 opinion in Morales-Santana v. Lynch.
At issue in the case was the constitutionality of a statute governing whether the foreign-born child of a US parent is a citizen. If the parents are not married, and only the father is a US citizen, the statute imposes numerous restrictions on citizenship transmission that do not apply when only the mother is a US citizen.
In the fall of 2014, soon after Collins’s article was published, the Second Circuit ordered the parties to re-brief the core constitutional issue, citing the article, and ultimately concluded that the statue violated constitutional gender-equality principles.