Loi n°2016-1547 du 18 novembre 2016 de Modernisation de la Justice du XXI siècle (2016) (Law on the modernization of justice)

Law No. 2016-1547 simplifies the procedures for changing an individual’s first name(s) and gender in civil status records. The law also replaces the discrimination criterion of "sexual identity" by "gender identity". Medical interventions and care carried out as part of a transitional medical process can be covered by social security. Since the adoption of this law, the first name change procedure is no longer a judicial process, and any individual may request the civil registrar to change first name(s) under article 60 of the French Civil Code.

Seven County Infrastructure Coalition v. Eagle County

Issues

Does the National Environmental Policy Act (NEPA) require an agency to study environmental impacts beyond those that are reasonably foreseeable results of the agency’s action and which the agency has the authority to regulate?

This case asks the Court to determine if the National Environmental Policy Act (“NEPA”) requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Seven County Infrastructure Coalition contends that NEPA only requires an agency to consider effects with a “reasonably close causal relationship” to the agency’s proposed action. Eagle County, Colorado counters that NEPA requires an agency to consider reasonably foreseeable effects of an agency’s proposed action that include effects a “prudent person” would consider when reaching a decision. This case touches upon important questions regarding the balancing act between economic and other national concerns and environmental protection.

Questions as Framed for the Court by the Parties

Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.

Congress delegated jurisdiction over railways to the Surface Transportation Board (“STB”) in 1995. Eagle County v. Surface Transportation Board at 1164. Those seeking to build railways must seek approval from the STB, which typically conducts a review and solicits public comments. Id. The board will grant the petition, oftentimes with modifications, unless it finds that building the railway would be inconsistent with the public interest.

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Kousisis v. United States

Issues

Does a private contractor cause “harm” as required for mail or wire fraud when it fraudulently misrepresents to the government that it hired a socially disadvantaged business as promised?

This case asks the Court to determine whether a private contractor’s fraudulent misrepresentation to a government agency regarding the contractor’s subcontracting duties causes harm sufficient for a conviction of wire fraud under 18 U.S.C. § 1343. Kousisis argues that the fraudulent-inducement theory that formed the basis for his conviction expands the notion of a property interest beyond the language of § 1343. Kousisis claims that expansion would convert all purposeful breaches of contract into federal crimes with harsh sentences, increasing the size of the federal prison population. The United States argues that the fraudulent-inducement theory fits within the statute and the Court’s precedent. In any event, the United States claims that the government agency overspent on the project because of Kousisis’s misrepresentations, and the government has an interest in protecting against such harms.  The United States asserts that overcriminalization is not an issue, and that contractors should not escape prosecution for misrepresentations to obtain government contracts.

Questions as Framed for the Court by the Parties

(1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”

The federal Department of Transportation (“DOT”) funds infrastructure projects overseen by state agencies throughout the country. United States v. Kousisis at 233. DOT also operates a program to increase the participation of businesses run by the socially and economically disadvantaged—called “Disadvantaged Business Enterprises” (“DBEs”)—in federally funded projects.

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Feliciano v. Department of Transportation

Issues

Is a federal civilian employee who is called or ordered to active duty during a national emergency entitled to differential pay under 5 U.S.C. § 5538(a) regardless of whether their duty is directly connected to the national emergency?

This case asks the Supreme Court to determine if any civilian employee who is called to active military duty during a national emergency is entitled to differential pay—compensation for the difference between their civilian pay and military pay—under 5 U.S.C. § 5538(a). Feliciano contends that all civilian employees called to duty during a national emergency should receive differential pay. The Department of Transportation (“DOT”) counters that 5 U.S.C. § 5538(a) requires the civilian employee’s work to be related to a contingency operation rather than merely coinciding temporally with the national emergency to qualify for differential pay. The outcome of this case has profound implications for the United States military’s effectiveness and financial security of military reservists.

Questions as Framed for the Court by the Parties

Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.

Nick Feliciano served as a civilian air traffic controller for the Federal Aviation Administration and a member of the Coast Guard Reserve. Feliciano v. Dep’t of Transp. (“Federal Circuit”) at 2. From July to September 2012, Feliciano performed active-duty service. Id. His service was pursuant to 10 U.S.C.

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Dewberry Group, Inc. v. Dewberry Engineers, Inc.

Issues

Can a judge include the profits of corporate affiliates who are not named as defendants in a trademark infringement case when calculating damages under the Lanham Act?

This case asks the Supreme Court if a judge can include profits of corporate affiliates, not named as defendants in a trademark infringement case when calculating how much to award in damages. Dewberry Group argues that under the Lanham Act, only the profits of the named defendant can be used in this calculation. Dewberry Group further argues that if the non-party affiliates’ profits were to be used, there should be an opportunity to litigate the matter of corporate separateness. Dewberry Engineers, on the other hand, counters that the Lanham Act consists of a two-step process where the second step allows the judge to award a “just sum” that may include the non-party affiliates’ profits. Additionally, Dewberry Engineers contends that there is no need for a separate legal analysis to disregard corporate separateness because the Lanham Act allows a judge to consider all relevant evidence including the non-party affiliates’ profits. The Supreme Court’s decision in this case will impact future trademark infringement cases, particularly how the corporate form will be considered in awarding damages under the Lanham Act.

Questions as Framed for the Court by the Parties

Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.

The Lanham Act protects trademark holders against other individuals and corporations from reproducing, counterfeiting, copying, or imitating their registered trademark by allowing the registrants to file a lawsuit against infringers. Dewberry Eng’rs v.

Acknowledgments

The authors would like to thank Professors Oskar Liivak and Charles K. Whitehead for their insights into this case.

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Stanley vs. City of Sanford

Issues

Is attempted murder a crime of violence under the Armed Career Criminal Act of 1984?

This case asks the Supreme Court to decide whether one can commit attempted murder without using, attempting to use, or threatening to use physical force against another person or their property. If no, attempted murder is a “crime of violence” and can serve as the basis for sentence enhancement under 18 U.S.C. § 924(c); if yes, it cannot—regardless of whether an individual defendant actually used physical force against another person. Salvatore Delligatti, who was convicted of attempted murder and seeks to challenge the enhancement of his sentence for that offense, argues that attempted murder does not inherently involve the action of using physical force because even completed murder can be committed through inaction. The United States counters that intentionally causing the death of another person, even through inaction, inherently involves the use of whatever physical force causes that other person’s death. The outcome of this case will determine the continued viability of Congress’s four-decade-old mechanism to crack down on gun violence, the Armed Career Criminal Act.

Questions as Framed for the Court by the Parties

Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

The federal criminal code provides for heightened minimum sentences when someone uses or possesses a firearm “in relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(A). That same section defines a “crime of violence” as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A).

Additional Resources

● Jimmy Hoover, Supreme Court Takes Up Mob Associate’s ‘Crime of Violence’ Appeal, The National Law Journal (June 3, 2024).
● John Fritze, Supreme Court to review gun charge appeal from Genovese crime family associate, CNN (June 3, 2024).
● Dan McCue, Justices to Get Off to Fast Start in New Supreme Court Term, The Well News (September 30, 2024).

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United States v. Skrmetti

Issues

Does banning gender-affirming care for minors violate the equal protection clause of the 14th Amendment?

This case asks the Supreme Court to determine the extent to which the 14th Amendment’s Equal Protection Clause applies to gender-affirming healthcare for transgender minors. Tennessee’s Senate Bill 1 prohibits medical treatments intended to alleviate gender dysphoria or initiate gender transition for minors. The United States argues that the Bill violates the Equal Protection Clause by withholding medical care on the basis of a patient’s sex, or alternatively, that the Bill discriminates against a quasi-suspect classification: transgender status. Skrmetti contends that the Bill applies equally to Tennessee youth regardless of gender, that it is not motivated by discriminatory intent, and that transgender status does not meet the quasi-suspect class characteristics of being discrete, insular, immutable, and politically powerless. The case will have powerful implications for future state policies regarding healthcare and transgender care, especially for minors, in the continuing social and political conflict over LGBTQ+ rights.

Questions as Framed for the Court by the Parties

Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause of the 14th Amendment.

On March 2, 2023, Tennessee passed Senate Bill 1, which went into effect on July 1, 2023. L.W. v. Skrmetti at 469. The law prohibited minors in Tennessee from receiving gender-affirming care for gender dysphoria or enabling minors to live with a gender identity inconsistent with their sex assigned at birth. Id. at 470.

Acknowledgments

The authors would like to thank Professors Deborah Dinner and Sheri Lynn Johnson for their insights into this case.

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Republic of Hungary v. Simon

Issues

Does expropriated property have a commercial nexus with the United States when the property is liquidated, the proceeds from liquidating that property are commingled with a foreign nation’s general assets, and those general assets are then later used commercially in the United States?

This case asks the Court to determine whether the expropriation exception of the Foreign Sovereign Immunities Act is satisfied when a claimant’s assets were seized and liquidated into funds that were “commingled” with the nation’s general assets, and the nation’s general assets were then used for commercial purposes within the United States. Hungary argues that commingled assets do not satisfy the expropriation exception because there is insufficient evidence to establish that the funds from the liquidated assets were directly used in a commercial capacity in the present day. The Simon survivors counter that commingled assets do satisfy the expropriation exception and that there is sufficient evidence that the funds from their seized property were later used for commercial purposes within the United States. This case touches on important questions regarding the role of American courts in international disputes, the Holocaust’s legacy, and human rights violations.

Questions as Framed for the Court by the Parties

(1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA.

Foreign sovereigns generally enjoy sovereign immunity in the United States, which prevents American courts from asserting jurisdiction over them. Simon v.

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United States v. Miller

Issues

Does 11 U.S.C. § 544(b) allow a trustee to avoid a transfer to the government, even when the government could not have been directly sued under nonbankruptcy law?

This case asks the Supreme Court to decide whether § 544(b) of the Bankruptcy Code allows a trustee to avoid a transfer to the government when the government could not have been directly sued under nonbankruptcy law. Section 106 abrogates sovereign immunity in certain bankruptcy claims, including § 544(b). Section 544 states that a trustee “may avoid any transfer of an interest of the debtor… that is voidable under applicable law,” which typically invokes state laws that fall outside of the purview of bankruptcy law. The Government argues that § 106 should be read narrowly, and that sovereign immunity is not waived when the actual creditor could not pursue an avoidance claim under the applicable state law due to sovereign immunity. Miller counters that the waiver of sovereign immunity in § 106 extends to the applicable law referenced in § 544. The outcome of this case has serious implications for the powers of trustees in bankruptcy cases and the power of the United States to waive sovereign immunity.  

Questions as Framed for the Court by the Parties

Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy.

Chapter 7 bankruptcy proceedings allow for the liquidation of assets to pay off a debtor’s creditors. 11 U.S.C.

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