Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split

The natural gas industry is central to the United States economy. However, due to vague regulations and judicial leniency, natural gas pipeline companies have almost zero restraint in exercising eminent domain. Their current operations mirror that of the federal government’s authority to exercise immediate possession. Recently, landowners have contested the pipeline industry’s authority to exercise eminent domain, which has developed into a circuit split. The Fourth Circuit, and the six other circuits that have followed suit, hold that pipeline companies have the substantive right to immediate entry and are entitled to a preliminary injunction before a trial on just compensation. The Seventh Circuit holds that the courts do not have the authority to grant immediate entry, and the pipeline company must complete the entire standard condemnation process before entering the property. In 2019, there were two attempts to bring this issue before the Supreme Court, and both attempts failed. This Note evaluates the most recent attempt in Givens v. Mountain Valley Pipeline, LLC and argues that the Supreme Court should address this issue and adopt the Seventh Circuit approach.

REVIEW OF PRELIMINARY INJUNCTION ORDERS IN U.S. COURTS

Under American rules, a very important factor for a court to consider when granting a preliminary injunction is the likelihood of success on the merits. To estimate this likelihood, the court must of course decide which legal provisions are applicable the parties’ dispute. And if the court errs in interpretation or application of those provisions, a party may successfully appeal to a higher court! As a result, the legal questions that must be answered to resolve the dispute on the merits are sometimes hotly and at great length discussed on the preliminary injunction stage, with appeals up to the highest-instance court. The ratios stated by higherinstance court in decisions on preliminary injunctions often become decisive when the dispute is resolved on the merits. Moreover, after the highest court ruled on a disputable issue of law in the preliminary injunction discussion, continuing the dispute may become redundant. Knowing the facts of the case (even if they are not yet formally established by a court) the parties often can easily understand who loses and who wins. After that it normally makes sense to settle out of court instead of wasting time and money for the process, the outcome of which is practically predetermined. Because of that many court orders granting or denying preliminary injunctions are far from being just “run-of-the-mill” ones. They may be very important for the ultimate outcome of the case and often contain detailed arguments on disputable issues of law, sometimes taking dozens of pages.

The mechanism for intellectual property protection under Chinese e-commerce law: more powerful than necessary

The notification and taking down procedure of the newly enacted Chinese E-Commerce Law is uncannily applicable to all infringements of all categories of IP in selling all kinds of goods on e-platforms, even to those which cannot be determined with a sufficient degree of certainty on available evidence by the e-platform. This mechanism overreaches grounds for the DMCA notification and taking down procedure and Chinese preliminary injunction. It overstrains e-platforms’ capabilities to assess intellectual property infringement and is indifferent to e-platforms’ lack of legal and technological expertise. It is wrong to be obsessed with the DMCA procedure – which is ceteris paribus – without measuring up to the distinctive e-platforms, e-sellers and e-businesses. Both e-platforms and e-sellers fundamentally have a common interest in the good governance of the platforms. It is out of place for the Chinese E-Commerce Law to encourage e-platforms to be a conduit for passing notifications and to take measures upon notifications of IP infringement mechanically and unscrupulously.

Does Investor-State Dispute Settlement Discriminate Against Nationals?

This Article answers the question of whether investor-state dispute settlement (“ISDS”) discriminates against nationals by providing foreign investors with an extra avenue to challenge state measures. The complaint that ISDS is discriminatory as a matter of principle has surfaced before several European constitutional courts—including the German Federal Constitutional Court and the European Court of Justice—in connection with the ratification of the Comprehensive Economic and Trade Agreement between Canada and the European Union (“CETA”). This Article rejects this complaint. The Federal Constitutional Court was able to leave the question of discrimination open in the applications for a preliminary injunction to stop ratification. It will have to take a stand, however, in the principal proceedings. If the Court were to side with the applicants, it would sound the death knell not only for the CETA in its present form, but also for the multilateral investment court system promoted by the European Union and, in particular, Germany. The point made by the applicants in the CETA complaint is not only of importance in a European constitutional law context. Whether ISDS is per se discriminatory is a fundamental issue which requires answering before any reform steps in relation to ISDS are addressed.

DACA and the Supreme Court: How We Got to This Point, a Statistical Profile of Who Is Affected, and What the Future May Hold for DACA Beneficiaries

Executive Summary In June 2012, the Obama administration announced the establishment of the Deferred Action for Childhood Arrivals (DACA) program, which sought to provide work authorization and a temporary reprieve from deportation to eligible undocumented young immigrants who had arrived in the United States as minors. Hundreds of thousands of youth applied for the program, which required providing extensive evidence of identity, age, residence, education, and good moral character. The program allowed its recipients to pursue higher education, to access more and better job opportunities, and to deepen their social ties in the United States. This article provides a statistical portrait of DACA recipients based on administrative data from US Citizenship and Immigration Services (USCIS) and estimates drawn from the 2017 American Community Survey (ACS) Census data. It finds the following: As of September 30, 2019, there were 652,880 active DACA recipients. Sixty-six percent of recipients are between the ages of 21 and 30. The top five countries of birth for DACA recipients are Mexico (80 percent), El Salvador (4 percent), Guatemala (3 percent), Honduras (2 percent), and Peru (1 percent). DACA recipients reside in all 50 states and Washington, DC, and in US territories including Puerto Rico, Guam, and the Virgin Islands. The top five states with the highest number of DACA recipients are California (29 percent), Texas (17 percent), Illinois (5 percent), New York (4 percent), and Florida (4 percent). Eighty-one percent of DACA recipients has lived in the United States for more than 15 years. Six percent is married to US citizens, 4 percent to lawful permanent residents (LPRs), and 13 percent to undocumented immigrants. Among US-born children younger than 18 years, 346,455 have at least one DACA parent. Fifty-five percent of DACA recipients graduated from high school, 36 percent has some college education, and 7 percent a bachelor’s degree or higher. Ninety-five percent is employed. The Trump administration rescinded the DACA program in September 2017, leaving recipients and their families in a legal limbo. Federal litigation led to a nationwide preliminary injunction and DACA’s partial reinstatement for existing recipients. At this writing, the case is before the US Supreme Court, which will determine the program’s fate. Beyond its statistical portrait, the article provides testimonies from DACA recipients who recount how the program improved their lives and their concerns over its possible termination. It also provides recommendations for Congress, local and state governments, and immigration advocates. In particular, it recommends passage of legislation that would create a path to citizenship for DACA recipients and programs and policies to support and empower young immigrants.