How Allen v. Cooper Breaks Important New (if Dubious) Ground on Stare Decisis

VIKRAM DAVID AMAR

Illinois Law dean and professor Vikram David Amar comments on language in a recent U.S. Supreme Court decision, Allen v. Cooperdiscussing constitutional stare decisis in the context of state sovereign immunity. Amar points out some of the problems with the Court’s jurisprudence on state sovereign immunity and Congress’s Section 5 power, and he questions the Allen majority’s embrace of a “special justification” requirement for constitutional stare decisis.

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In re: Mustafa Al Hawsawi

Docket: 19-1100

Opinion Date: April 10, 2020

Judge: Henderson

Areas of Law: Criminal Law, Military Law

The DC Circuit denied petitions for writs of mandamus seeking vacatur of all orders issued by the former presiding military judge because of the appearance of partiality. Petitioners are being tried before a military tribunal for their alleged roles in the September 11th terrorist attacks. The court held that it was neither clear nor indisputable that the military judge should have recused himself. The court explained that the military judge's career and relationships do not constitute reasonable bases for the extraordinary remedy of mandamus.

Gulf South Pipeline Co. v. Federal Energy Regulatory Commission

Docket: 19-1074

Opinion Date: April 10, 2020

Judge: Rao

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law

The DC Circuit held that FERC's rejection of Gulf South's application for incremental-plus rates was arbitrary and capricious. The court held that FERC failed to justify the disparity between how materially identical shippers will pay dramatically different rates for the use of the same facilities. Furthermore, FERC's decision violated fundamental ratemaking principles—namely, that rates should generally reflect the burdens imposed and benefits drawn by a given shipper. Accordingly, the court vacated the order denying incremental-plus rates and remanded for further proceedings. The court denied Gulf South's petition for review in all other respects.