Consumer Class Conflict:  The Battle against Heightened Ascertainability in the Sixth Circuit

Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit

Article | 105 KY. L. J. ONLINE | March 13, 2017

Houston Alexander Bragg[1]

The theoretical purpose of class action certification and litigation is to assist groups of plaintiffs, who are “isolated, scattered, and utter strangers to each other,” in procuring legal redress that may be unavailable to them individually.[2] The practical purpose of class action litigation is to create a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without Federal Rule of Civil Procedure 23 (F.R.C.P. 23) and class action litigation, low-figure consumer harm would lack a remedy. The Third Circuit is waging war on the practical purpose of class action litigation by creating an overwhelming requirement that plaintiffs, at the pretrial stage, be able to produce a “reliable and administratively feasible” apparatus for determining whether a supposed class member falls within the class definition.[3] This prerequisite to class certification acts as a shield to consumer recovery, completely altering the established definition of class ascertainability.

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Why Your Company’s Cyber Breach Isn’t Currently a Bad Thing

Why Your Company’s Cyber Breach Isn’t Currently a Bad Thing

Article | 105 KY. L. J. ONLINE 1 | November 14, 2016

Devon Paige Cobb[1]

Introduction

“[T]here are only two types of companies: those that have been breached and those that don’t know they have.”[2] Despite the frequency of these hacks, the stigma associated with cybersecurity breaches of business and customer information is a harsh one. That stigma is imposed before the financial hits are measured, the average cost of which can be as much as $25 per exposed record.[3] Target alone reported a net $17 million in breach-related costs as well as $44 million in insurance payments.[4] While those numbers are substantial, these hacks can cost companies even more in intangibles, such as the decline in a company’s reputation,[5] loss of customer goodwill,[6] and liability flowing from either class action lawsuits by customers whose information has been breached or shareholders’ derivative actions.[7]

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Meriting Consolidation: Why Criminal Pattern Jury Instructions Should Consolidate Federal Bribery Statutes

Meriting Consolidation: Why Criminal Pattern Jury Instructions Should Consolidate Federal Bribery Statutes

Article | 104 KY. L. J. ONLINE 75 | April 14, 2016

Kierston Eastham Rosen1

Introduction

Bribery in the federal system is notorious for its incoherence.2 Multiple bribery statutes exist with very similar elements, and a defendant can be prosecuted under any and all of these statutes.3 Because of this, the federal crime of bribery continues to confuse and perplex even the most seasoned attorneys.4 While confusion among attorneys helps illustrate the problem with federal bribery, attorneys are not the main focus of pattern jury instructions. Pattern jury instructions serve to educate lay jurors during federal trials, instructing them as to both the law and its application in a given case. It is imperative that these instructions are as clear and concise as possible, and currently, pattern instructions do not meet this standard. Therefore, federal bribery law and its corresponding pattern instructions need to be clarified. Continue reading

Money for Nothing and Your Facts for Free: An Exploration of Political Spending and a Proposal for Combatting Big Money Interests

Money for Nothing and Your Facts for Free: An Exploration of Political Spending and a Proposal for Combatting Big Money Interests

Article | 104 KY. L. J. ONLINE 54 | January 11, 2016

Chris K. Stewart[1]

Introduction

Each election since 1998 has cost more than the one before it.[2] Total spending for the 2014 midterm was $3.77 billion.[3] Some estimates project spending on the 2016 presidential election alone may exceed six billion dollars.[4] While this consistent uptick in spending is a powerful testament to the ever-increasing role of money in politics, two other statistics are even more disturbing. First, in 2014 House races, the candidate who outspent the opposition claimed victory 94.2% of the time.[5] Second, in the 2014 midterm election, nationwide voter turnout dropped to its lowest level since 1942.[6] The dramatic uptick in spending coupled with historically low voter turnout paint a grim picture of the future of American elections. Continue reading

On a Path to Autonomy: Death With Dignity Paves the Way

On a Path to Autonomy: Death With Dignity Paves the Way

Article | 104 KY. L. J. ONLINE 35 | November 12, 2015

Joseph J. Sherman [1]

Introduction

In early October 2014, Brittany Maynard made headlines when she announced her intention to end her own life in response to her cancer diagnosis.[2] Maynard was a California woman who was diagnosed with terminal glioblastoma,[3] which is a type of highly malignant brain tumor.[4] But because California prohibits physician-assisted death (“PAD”), she and her family made the difficult decision to move to Oregon, where she could legally seek such medical care.[5] On November 1, 2014, Maynard carried out her plan to end her own life by taking a lethal dose of barbiturates prescribed by her doctor.[6] Her choice to end her own life, rather than to let her illness take its natural course, has generated a great deal of controversy.[7] Is it beneficent to promote an early death for the terminally ill to prevent pain and suffering? Do we overextend our role in medicine when death becomes a prescription? What implications does PAD have on the future of end-of-life care? Continue reading

A Fare Deal: The Reasonable Regulation of Ridesharing

A Fare Deal: The Reasonable Regulation of Ridesharing

Note | 104 KY. L. J. ONLINE 17 | Sept. 28, 2015

Dylan Merrill[1]

Introduction

On New Year’s Eve 2013, Sayad Muzzafar was driving for the ridesharing company Uber when he struck a mother and her two children while they were crossing the street. That night, one of the children, a six year-old girl, died from her injuries.[2] The Liu family later sued the company, but Uber distanced itself from the accident, arguing it was not liable because Mr. Muzzafar did not have an Uber passenger in his vehicle when he struck the pedestrians.[3] At the time of the accident, policymakers had not implemented regulations for the new rideshare industry, further frustrating the goal of determining who in fact is liable in these circumstances.[4]
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More Coverage, More Problems: No Private Remedies for Kentuckians Hurt by HIPAA Violations After Adoption of the Affordable Care Act

More Coverage, More Problems: No Private Remedies for Kentuckians Hurt by HIPAA Violations After Adoption of the Affordable Care Act

Note | 103 KY. L. J. ONLINE 7 | Aug. 7, 2015

Chelsea N. Hayes[1]

Introduction

Kentucky is leading the way in America’s first state-based exchange to implement the Affordable Care Act (hereinafter “ACA”).[2] While this presumably will assist the one in six Kentuckians who are uninsured,[3] doctors and medical facilities may mistakenly disclose private documents with the high influx of new patients. Therefore, Kentucky citizens may question how to resolve violations of privacy mandated by the Health Insurance Portability and Accountability Act (hereinafter “HIPAA”).[4] Continue reading

Eldred & the New Rationality

Eldred & the New Rationality

This Online Original is available for download (PDF) here.

Article | 104 KY. L. J. ONLINE 1 | July 17, 2015

Brian L. Frye[1]

Abstract

Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respectively held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public.But in Lawrence v. Texas and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by animosity, and in Obergefell v. Hodges, it held that states must license marriages between two people of the same sex, because there is no legitimate basis to refuse.This essay argues that Lawrence, Windsor, and Obergefell may reflect the emergence of a “new rationality” that authorizes courts to consider legislative intent when evaluating the constitutionality of legislation. If so, perhaps the Court should reconsider Eldred and Golan. Continue reading

Will Kentucky Fall Victim to the EPA’s War on Coal? Examining the Commonwealth’s Options Under the Newest Power Plant Emission Standards

Will Kentucky Fall Victim to the EPA’s War on Coal? Examining the Commonwealth’s Options Under the Newest Power Plant Emission Standards

Note | 103 KY. L. J. ONLINE 6 | Apr. 28, 2015

Matthew Hlinka[1]

Introduction

Coal continues to play an integral part in the development of modern society. Coal keeps our families warm, fuels our trains, and provides electricity for our homes, factories, and cities.[2] The United States is currently the second largest consumer of electricity in the world.[3] In order to satisfy this veracious demand for energy, the United States has long relied on its extensive coal reserves, the largest in the world.[4] In fact, approximately half of the electricity generated in the United States over the last fifty years has come from coal.[5] Continue reading

Knowledge is Power: Understanding Kentucky’s Human Trafficking Laws

Knowledge is Power: Understanding Kentucky’s Human Trafficking Laws

Note | 103 KY. L. J. ONLINE 5 | Apr. 24, 2015

Katie Smith[1]

Introduction

“Human trafficking”—these two words are increasingly onthe radar of political leaders, celebrities, and average citizens across the nation. Over the past decade and a half, leaders and activist groups have begun to decry this “modern day slavery” as a growing evil that must be stopped; however, celebrities who speak out against trafficking or legislatures that unanimously push to pass bills condemning the practice often do little, in reality, to actually prosecute traffickers or to aid victims.[2] The state of Kentucky, however, is somewhat unique. Although it remains unrecognized by many, human trafficking does, in fact, exist in the Commonwealth. Instead of settling for mediocre laws that condemn the evil of trafficking but do little to combat it, the Kentucky legislature has passed some of the strongest legislation in the country to actually take a stand against sex and labor trafficking within our state’s borders.[3] Continue reading