Articles

Introduction – The Honorable Jennifer Choe-Groves

Circumvention, Evasion, and Enforcement of Antidumping and Countervailing Orders Before Commerce and Customs: Statutory Frameworks, Recent Trends, and the Interplay Between EAPA and Circumvention Regimes – Chase Dunn, Jamie Shookman, Nithya Nagarajan, Tamari Lagvilava, Hardeep Josan, and Michael Roll

This Paper provides a robust discussion of Commerce’s circumvention practice and CBP’s EAPA practice, as well as an analysis of the interplay between the two agencies in carrying out their respective enforcement missions. The Paper begins with a brief overview of the circumvention statute, outlining the criteria necessary for reaching an affirmative determination and highlighting recent trends in Commerce’s circumvention practice. Next, the Paper provides an overview of EAPA’s legislative history and statutory framework, outlining the criteria for an investigation, the timeline for such investigations, and discussing recent trends in CBP’s EAPA practice. Finally, the Paper concludes with a discussion of key procedural and substantive issues that arise when both CBP and Commerce evaluate the same AD/CVD orders.

Legal Underpinnings of Preservation of the Confidentiality Accorded by the International Trade Commission to Proprietary Information During Trade Remedy Investigations – Deanna Okun, Alissa Chase, and Joonho Hwang

The International Trade Commission (“Commission”) recently appealed to the U.S. Court of Appeals for the Federal Circuit (“CAFC”) the Court of International Trade’s (“CIT”) decision to not retract a public opinion that allegedly contained confidential business proprietary information (“proprietary information”) in the Administrative Record developed by the agency during the underlying trade remedy investigation. The CAFC’s ruling on this appeal with respect to preservation of the confidential status accorded to proprietary information submitted by parties and non-parties (collectively, “participating entities”) in trade remedy investigations can significantly affect the Commission’s ability to collect relevant information as well as the submitters’ interests in ongoing and future investigations.

Without commenting on the merits of the appeal, this Article reviews the legislative framework governing the Commission’s authority to collect information, Commission practice with respect to the treatment of that information, the CIT’s and CAFC’s Rules pertaining to the issue on appeal, and the impact of this decision on participating entities in trade remedy investigations.

The Ban on Intervention in 28 U.S.C. § 1581(A) Cases: Time for a Reappraisal? – John M. Peterson

The Federal Rules of Civil Procedure (“FRCP”) recognize that in many cases, litigation may affect the interests of persons other than the original parties who bring a dispute to court. In this regard, FRCP 24 provides for both “[i]ntervention of [r]ight” and “[p]ermissive [i]ntervention” in federal lawsuits. Rule 24 of the Rules of the United States Court of International Trade (“USCIT R.”) also provides for “[ i]ntervention of [r]ight” in specific circumstances, and “[p]ermissive [i]ntervention” which is always subject to the court’s discretion.

Is Trade Special? Trade Law and Deference After Loper Bright – Thomas M. Beline, Neil R. Ellis, Ron Kendler, and Brooke M. Ringel

“Chevron is overruled.” With those three words, the Supreme Court in Loper Bright Enterprises v. Raimondo discarded forty years of tradition regarding the relationship between the Judiciary and Executive Branch agencies. But what does this three-word holding mean for trade litigation? It may mean new arguments will be made. It may mean that what was thought to be well-settled law is ripe to be re-litigated by directing a reviewing court to the “best reading of a statute.” Or it may mean that the U.S. Court of International Trade (“CIT”) and U.S. Court of Appeals for the Federal Circuit (“CAFC”) will do what they have always done when evaluating agency determinations in trade by “ensuring the agency has engaged in ‘reasoned decisionmaking.’” This paper reviews the Loper Bright decision, applies the decision to the statutory judicial framework concerning trade and customs matters, and attempts to predict the cases that may come before the courts soon, pointing to Loper Bright—perhaps as a new standard—for reviewing agency determinations that invoke the interpretation of ambiguous statutory provisions.

Promises and Perils: The Role of Artificial Intelligence in the Courts – The Honorable Jennifer Choe-Groves and J. Brian Johns

English computer scientist Alan Turing posed the seemingly straight-forward question, “[c]an machines think?” in his paper Computing Machinery and Intelligence. At the time of Turing’s writing in 1950, the idea of a machine capable of imitating the reasoning and intellectual capabilities of a human was merely aspirational. In the nearly three-quarters of a century since Computing Machinery and Intelligence was published, artificial intelligence (“AI”) has become a common, and often unseen, aspect of everyday life. Map applications and predictive text on cellular phones, voice recognition on smart home devices, and product recommendations on retailer websites are just a few of the numerous ways that an average person might regularly encounter AI. Despite its increasing ubiquity in modern technology, AI is still little understood by the general public and is often viewed with a mix of suspicion and wonder.

Student Notes

Syncing Strategies: The Call for Consistency in State-created Danger Claims Involving Minor Students with Disabilities – Gianna Dano

Under 42 U.S.C. § 1983 (“§ 1983”), United States citizens may bring claims for deprivation of their Due Process rights in violation of the Fourteenth Amendment. Customarily, plaintiffs cannot make assertions against government officials for private acts. However, the Supreme Court, in dicta, articulated a narrow exception—an official cannot be liable for private acts unless the official knowingly created or worsened the danger to the plaintiff. After the Court’s ruling in DeShaney v. Winnebago, many circuits adopted what is now known as the “state-created danger” doctrine. While most circuits recognize this exception, the Supreme Court’s refusal to rule on the issue allows for inconsistent state-created danger tests between circuits as well as unpredictable applications by the courts. This Note will analyze the Supreme Court’s ruling in DeShaney and examine the distinctive sister circuits’ state-created danger elements. This Note will reason that the United States Courts of Appeals, to safeguard disabled schoolchildren’s needs, must assume a consistent state-created danger test. Specifically, this Note will encourage a uniform doctrine since (1) state remedies may be inadequate, and (2) the number of students with disabilities, together with the shocking rates of victimization against disabled schoolchildren, call for federal opportunity and regularity under § 1983. Ultimately, this Note will propose a consistent state-created danger framework.

Destabilizing the Relationship Between Status, Conduct, And Message: A 303 Creative Case Analysis – Danielle King

Five years after dodging the major questions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court took another stab at reconciling First Amendment protections with public accommodations laws in 303 Creative LLC v. Elenis. With a newly minted conservative supermajority, the Court sided with petitioner Lorie Smith, a Christian website designer who refused to make wedding websites for same-sex couples. Many commentators decried the decision, fearing it would severely weaken public accommodations laws. Justice Sotomayor, joined by two of her colleagues in dissent, lamented that “the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” However, there is reason to believe the decision is quite narrow. The case was decided on free speech grounds, relying heavily on the parties’ stipulations that Smith’s services are “expressive.” The Court noted that “the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers).” On the other hand, “expressive conduct” appears broader than Smith’s case, which, according to the Court, involved “pure speech.” Moreover, the Court cited cases that did not involve pure speech but rather “expressive association.”

Protected or Policed?: Invoking Children’s Fourth Amendment Rights Against Unnecessary CPS Intervention – Ren Ramos

Critiques of the child welfare system have become increasingly common within the past decade. Legal challenges to CPS investigations and child removal, however, have been primarily centered on parents’ constitutional rights. These challenges, while essential and effective, do not adequately consider the constitutional rights of children that are threatened when CPS comes knocking. This Note centers on the Fourth Amendment rights of children who are subject to investigation and removal from their families in the name of protection. The Supreme Court has not yet ruled on the applicability of the requirements of probable cause and a particularized warrant to child welfare workers, allowing CPS agencies across the United States to routinely violate the traditional protections of the Fourth Amendment. Using a framework of CPS investigation as “family policing,” this Note argues that caseworkers must be subject to the warrant and probable cause requirements enshrined in the Fourth Amendment. Furthermore, I argue against the application of the “special needs” and consent doctrines to CPS investigations due to their similarity in form and function to law enforcement action. Finally, I examine non-reformist solutions to persistent Fourth Amendment violations by CPS agencies and advocate for robust protections for children during CPS investigations.

How Much Ambiguity is Ambiguous?: An Analysis of Cargill v. Garland and the Road to a Resurgence of the Rule of Lenity – Alexander Storzillo

The rule of lenity states that if a criminal law is ambiguous, a court must construe it narrowly in a way most favorable to the defendant. The rule serves two critical functions. First, by limiting a court’s ability to interpret ambiguity within a penal law, Congress’s power to define crime and punishment is preserved, thus upholding the separation of powers. Second, by construing ambiguity in favor of a defendant and ensuring that one does not have to guess whether their conduct is proscribed, the right to fair notice is guarded and due process vindicated. Contemporarily, when the rule has been used, the separation of powers function has been elevated at the expense of due process protection. Courts have been unable or unwilling to balance the two primary functions of lenity, leading the rule to be rarely invoked and typically found in dissenting opinions. In 2018, in response to the Route 91 Harvest Music Festival shooting, The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) changed its longtime stance on the legality of bump stock attachments to semi-automatic rifles. The ATF’s Final Rule proposed to “clarify” the arguably ambiguous text of the Firearms Owner’s Protection Act and the National Firearms Act, prohibiting the sale or possession of machine guns and any parts that can convert a weapon into a machine gun. Michael Cargill, a bump stock owner, challenged the ATF’s new interpretation and Final Rule. Although the Supreme Court handed down its decision in Garland v. Cargill in June 2024, this Note will argue that the Court missed a pivotal opportunity to finally articulate the level of ambiguity needed within a statute to trigger the rule of lenity, and in turn, pave the way for the rule’s resurgence in the modern era.