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Volume 62, Issue 2
Article III Judicial Power and the Federal Arbitration Act

By Roger J. Perlstadt | 62 Am. U. L. Rev. 201 (2012)

Arbitrators determine facts and apply law to those facts to bindingly resolve disputes between two or more parties, a task normally reserved for judges.  The Federal Arbitration Act (FAA) makes agreements to arbitrate disputes enforceable, including disputes that would normally be heard by an Article III judge, such as those arising under federal law or between parties of diverse citizenship.  Accordingly, disputes subject to an arbitration agreement brought before a federal court for adjudication must instead, pursuant to the FAA, be resolved by an arbitrator.  Yet, while Article III ostensibly mandates that life-tenured and salary-protected judges decide such disputes, arbitrators—selected and compensated by one or more of the parties—enjoy neither protection.  A literal reading of Article III thus suggests that sending federal disputes to non-Article III arbitrators under the FAA is unconstitutional.  Although courts and scholars have roundly rejected Article III literalism and have adopted various theories justifying non-Article III adjudication of Article III disputes, whether the FAA is consistent with Article III has received little analysis.

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Inside Voices: Protecting the Student-Critic in Public Schools

By Josie Foehrenbach Brown | 62 Am. U. L. Rev. 253 (2012)

First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection.  However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics.  To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent.  After documenting how both educators and courts have mistakenly devalued important messages from young dissenters, the Article explores how to reformulate the doctrinal approaches used to resolve challenges to the suppression of student-critics and urges courts to recalibrate overly deferential assessments of educators’ claims that student dissent compromises effective learning.

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COMMENT: Text and Pretext: The Future of Material Witness Detention After Ashcroft v. Al-Kidd

By Catherine Cone | 62 Am. U. L. Rev. 333 (2012)

The Supreme Court, in its 2011 decision in Ashcroft v. al-Kidd, closed the door under the Fourth Amendment on a material witness’s ability to argue that the government pretextually held the witness for individual investigation rather than for testimony in an upcoming criminal proceeding.  Although traditionally pretext was raised as a Fourth Amendment argument, a material witness can also claim pretext under the federal material witness statute by arguing that detaining officers did not comply with the statute, and thus, avoid the constitutional argument altogether.  In al-Kidd, the Court did not address whether a material witness can instead argue pretext through the federal material witness statute directly.

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COMMENT: Help Me Help You: Why Congress's Attempt To Cover Torts Committed by Indian Tribal Contractors with the FTCA Hurts the Government and the Tribes

By Joseph W. Gross | 62 Am. U. L. Rev. 383 (2012)

Since the Nixon Administration, the U.S. government has attempted to promote tribal self-determination among Native Americans.  Under the Indian Self-Determination Act, the tribes can enter into agreements with the federal government to take over services previously provided to the tribes by the Bureau of Indian Affairs (BIA).  By entering into these contracts, the tribes have been able to administer a wide variety of services, including construction and law enforcement, which bring income and employment to Indian country.  These contracts do not always run smoothly, however, and sometimes people get injured.  Under a series of amendments to the Indian Self-Determination Act, when tribal contractors commit torts, the federal government steps in and defends the tribal contractors under the Federal Tort Claims Act (FTCA) as if they were employees of the government.  The government pays out any settlements or judgments from the Judgment Fund.  This scenario is a complete departure from the traditional FTCA rule whereby contractors are only treated as government employees in exceedingly limited circumstances.

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