Why You Gotta be So Rude? Don't You Know [a Chimp] Is Human, Too?: Tommy's Claim of Personhood

Andrea Reed, KLJ Staff Editor

A case for giving basic human rights to nonhuman primates is making its way through the New York court system.On December 18, 2014, the Nonhuman Rights Project (NhRP) filed a motion for permission to appeal their case to New York’s Court of Appeals on the heels of the New York State Appellate Court, Third Judicial Department’s, ruling that Tommy the chimpanzee “is not a ‘person’ entitled to the rights and protections afforded by the writ of habeas corpus.”[1]This case started last December, when four captive chimpanzees made history as the first nonhuman primates to sue their captors for the right to not be imprisoned illegally.[2] Previous advocates had worked rigorously to pass and enforce legislation protecting animal rights, such as the anti-cruelty statutes and the Endangered Species Act[3], but never before had a group brought a lawsuit seeking to apply legal human rights to nonhuman primates.The NhRP changed that with their representation of Tommy and three other primates in lawsuits against their New York captors, a research facility. As the first and only legal organization doing this type of work, the NhRP’s mission is to change the legal status of select nonhumans animals from “‘mere things,’ which lack the capacity to possess any legal right, to ‘persons,’ who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.”[4]So far their goal has been met with disappointment as all of New York’s lower courts have dismissed the case on the grounds that chimpanzees are not humans.[5]The NhRP argues that the New York Court of Appeals recognizes that ‘chimpanzees exhibit highly complex cognitive functions-such as autonomy, self-awareness, and self-determination, among others—similar to those possessed by human beings,’ and that it is thus time for the common law to recognize that these are sufficient to establish legal personhood.[6]While this case—and the very idea of animals as persons—is extremely controversial, “an ever-expanding body of observational, neurological, and genetic evidence about animal intelligence and behavior is forcing [the courts] to reconsider the age-old boundary between ourselves and other creatures.”[7]Tommy’s “owners” have until January 2nd to reply to NhRP’s motion for permission to appeal. And if the appellate court denies their appeal, NhRP will file a motion in the Court of Appeals directly, asking the court permission to appeal to it. Natalie Prosin, Executive Director of the NhRP, stated that "The issues in this ground-breaking case are novel ones that should be decided at the highest judicial level possible. We hope we are granted permission to appeal to the Court of Appeals so that we can give Tommy his day in court."[8]One wonders when one might file a similar lawsuit for horses.

[1]In “Tommy” Case, NhRP Seeks Appeal to New York’s Highest Court, Nonhuman Rights Project (Dec. 18, 2014), http://www.nonhumanrightsproject.org/2014/12/18/in-tommy-case-nhrp-seeks-appeal-to-new-yorks-highest-court/.
[2] Charles Siebert, Animals Like Us, Popular Science, Jan. 2015, at 54.
[3] See generally, A BRIEF HISTORY OF ANIMAL LAW, PART II (1985 - 2011) Joyce Tischler, A Brief History of Animal Law, Part II (1985 - 2011), 5 Stan. J. Animal L. & Pol'y 27 (2012).
[4] Press Release re. NhRP Lawsuit, Dec. 2nd 2013, Nonhuman Rights Project (Nov. 30, 2013), http://www.nonhumanrightsproject.org/2013/11/30/press-release-re-nhrp-lawsuit-dec-2nd-2013/.
[5] In “Tommy” Case, NhRP Seeks Appeal to New York’s Highest Court, supra note 1.
[6] Appellate Court Decision in Tommy Case, Nonhuman Rights Project (Dec. 4, 2014), http://www.nonhumanrightsproject.org/2014/12/04/appellate-court-decision-in-tommy-case/.
[7] Sibert, supra note 2.
[8] In “Tommy” Case, NhRP Seeks Appeal to New York’s Highest Court, supra note 1.

First and Ten: Should Northwestern Football Players be Considered Employees?

M. Caitlin Gallaher, KLJ Staff Editor

Whether it was your favorite football team growing up, your alma mater, or any game that happened to be on the TV, collegiate sports have been ingrained in the American way. But has the time come for us to stop considering the players’ student athletes, and instead refer to them as employees of their respective schools?At the start of the 2014-year, the Northwestern football team filed a petition with the National Labor Relations Board (N.L.R.B.), seeking for the team to be recognized as employees of the University, and thus enforce their right to unionize.[i] During the hearing, the College Athletes Players Association (CAPA) argued that under the N.L.R.B and the United States Supreme Court precedent the law dictates that: the common law definition of employee should be used; that the players fit under the definition of “employee” because they received compensation for services rendered; that those services created large amounts of revenue for the school; the players were under the control of the coaches; and that the players activities were separate from their roles as students.[ii] In response, Northwestern University urged the N.L.R.B. to determine the status of the players based on the test established in Brown University, which goes beyond the common law definition and considers their status as students; the role of their activity (playing football) in their education; the relationship between the student and the faculty; and the financial support they receive.[iii]In the decision issued on March 26, 2014, by the Regional Director, Peter Ohr, of region thirteen for the National Labor Relations Board, this right was granted.[iv] If allowed to be, and elected to be, organized by CAPA the players would be recognized by Northwestern and CAPA and would engage in negotiations to create an agreement between the players covering aspects that will be deemed important to the players and the University. The ruling of the Regional Director stated that the players were to be considered employees of the university by applying the N.L.R.B definition of “employee.”[v] This broad definition provided by the N.L.R.B. has been considered by the United States Supreme Court, which determined that in applying the definition it is necessary to also consider the common law definition of employee.[vi] Under the common law definition an employee is someone who “performs a service for another under a contract for hire, subject to the others control or right of control, in return for payment.”[vii] Thus, the Regional Director decided that scholarship-aid recipients that participate on Northwestern’s football team are employees based on the scholarships they receive, the service they provide in playing football, and the coaches’ control over the players’ time.[viii] Northwestern appealed to the N.LR.B. to have the determination that the players were employees reviewed, the appeal was granted and we are still awaiting decision on the ultimate issue.[ix]But should they really be considered employees? During the initial hearing, CAPA stated that the status of the football players is completely separate from that of their status as a student.[x] It seems as though CAPA considers the status of a football player, and that of a student at Northwestern, fully independent of each other. However, this assumption seems to remove from the analysis that but-for the football player’s status as a student there would be no availability for the players to be on the football team and thus at best the claim of independence between the two statuses should be questioned. Additionally, the separation of the players’ status takes no notice to the collective environment that a college campus provides. A college campus is not simply an academic institution, instead it is a community with students from all different backgrounds involved in a variety of activities, college football is but one sector of the community and is most certainly not the only division with students receiving scholarship-aid. The combination of these different activities and student participation is what creates the collegiate experience, without one of them the experience and environment could be drastically altered.It has also been stated that the scholarship-aid football players receive is in fact compensation for an activity performed by the football players.[xi] This argument is made despite the fact that the Internal Revenue Service (IRS) considers scholarship-aid that is used for tuition and fees needed for attendance at an educational facility to not be considered part of a persons gross income, and therefore is non-taxable income.[xii] Moreover if the scholarship-aid is to be considered compensation it would consequently lose the standing of non-taxable income and the players could then be placed in a position where they would have to pay taxes on their scholarship.[xiii]The idea that the players constitute employees is also based on the level of control that the coaches have in regards to the players’ time. They issue itineraries, determine where the players stay before games, require notification regarding outside employment, require approval for living arrangements, and prohibit gambling and drug use.[xiv] However, there is no consideration of the fact that non-scholarship players can also be subject to this control, for the very reason that they are part of the football team and seen as the face of the university.Finally, if the N.L.R.B. affirms the Regional Directors determination that the football players are employees it could open the door for other football teams and sports to attempt to unionize. While on the surface this seems to be an incidental issue of little consequence, it is the opposite. The fact that different unions could enter different schools, or the same union into different schools, creates this situation where different teams would have different bargaining agreements and variance of benefits compared to other schools. The variety of bargaining agreements would essentially frustrate the very purpose of the NCAA (National Collegiate Athletic Association), the body that governs the competition of collegiate sports: to create a level playing field for all collegiate sports.[xv]Therefore, allowing the Northwestern football team to be considered employees frustrates the purpose behind the NCAA; will potentially create a situation where players will owe money on their taxes; could possible disturb the collegiate environment promoted on college campuses; and also conclude that scholarship-aid is not a large enough factor to differentiate the players from non-scholarship athletes in order to institute a bargaining unit. Thus, in review, if the court follows the common law test for employees determination of employee will probably result. Additionally, if it is found that the Brown University test should be applied the student status of the players and their interrelated status as students would prohibit the determination that they are employees.

[i] Transcript of Oral Argument at 6, In re Northwestern University, 2014 (13-RC-121359).
[ii] Id. 6-7
[iii] Northwestern University v. College Athletes Players Association, Case 13-RC-121359 at 18 (N.L.R.B. Mar. 26, 2014).
[iv] Id. at 23.
[v] 29 U.S.C. § 152(3) (1978) (“employee shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise…”).
[vi] Northwestern University, Case 13-RC-121359 at 13 (N.L.R.B. Mar. 26, 2014); NLRB v. Town & Country Electric, 516 U.S. 85, 94 (1995).
[vii] Northwestern University, Case 13-RC-121359 at 13 (N.L.R.B. Mar. 26, 2014).
[viii] Id. at 15-16.
[ix] Northwestern University, Case 13-RC-121359 at 1 (N.L.R.B. Apr. 24, 2014).
[x] Transcript of Oral Argument at 7, In re Northwestern University, 2014 (13-RC-121359).
[xi] Id.
[xii] See 26 U.S.C. § 117 (2001).
[xiii] See 26 U.S.C. § 61 (1984); 26 U.S.C. § 63 (2009).
[xiv]  Northwestern University, Case 13-RC-121359 at 16 (N.L.R.B. Mar. 26, 2014).
[xv] National Collegiate Athletic Association, Frequently-Asked Questions About the NCAA (Nov. 25, 2014), http://www.ncaa.org/about/frequently-asked-questions-about-ncaa.

Body Cameras Bring a New Perspective to Police/Civilian Encounters

Mark Roth, KLJ Staff Editor

 This past week, the hotly debated issue of the use of police force has, again, captured the nation’s attention.  An Albuquerque, New Mexico district attorney has chosen to bypass the grand jury process and, instead, present murder charges to a judge at a preliminary hearing in an event involving two police officers who shot and killed a knife-wielding homeless man in New Mexico.[1]  This decision occurred while police tactics remain under intense review nationwide following the fatal shooting of an unarmed 18-year-old in Ferguson, Missouri, and the chokehold death of another unarmed man in New York City.[2]  In both cases, grand juries declined to charge the officers, sparking intense protests and debates across the nation about the use of excessive police force.[3]  While this easily could have been another case of a police related death without enough evidence to bring formal charges, a police body camera that captured the whole confrontation gave the prosecutor enough evidence to file formal charges.[4]  At this stage, the judge still must decide if, based on the evidence, the case may proceed. But, even if the judge does allow the case to proceed, the prosecutor faces an uphill battle as the standard of what constitutes force weighs heavily in favor of police officers.  So, whether this will usher in a new era of increased prosecutions of cops as a result of wearable cameras remains to be seen.Wearable cameras offer a number of potential benefits towards police-civilian encounters.  A study conducted by the University of Cambridge’s Institute of Criminology based on a 12 month trial in Rialto, California found that body cameras reduced the use of police force by roughly 50 percent, while complaints against police officers fell 90 percent compared to the previous year.[5]  While additional studies are necessary, the preliminary evidence indicates that body cameras increase the accountability of both officers and civilians, as both are aware that the encounters are being taped.  Some police officers are in favor of the change as well.  Officer Richard Royce says, “I’d rather have my version of that incident captured on high-definition video in its entirety from my point of view, then to look at somebody’s grainy cellphone camera footage captured from a 100 feet away that gets cropped, edited, changed or manipulated.”[6]Of course, the use of body cameras is not without the potential for negative consequences.  Widespread use of body cameras increases the potential for privacy infringement of individuals and presents a challenge for police departments trying to store and manage the huge amount of data that would result.[7]All the perceived benefits need to be balanced against the potential negative consequences, but increased accountability and a drop in complaints could help to improve relationships between police officers and their communities at a time when the tension between officers and civilians is high.Widespread use of body cameras does not appear to be on the immediate horizon just yet though.  Congress has not included President Obama’s proposed investment of $263 million into community policing in the budget, of which $75 million would go towards the cost of issuing 50,000 body cameras to police departments across the nation.[8]  This has not stopped other police departments from purchasing body cameras themselves though.[9]While all the potential benefits and consequences of police body cameras remain to be fleshed out, the early indication is that this is a step in the right direction.  Increased use of police body cameras will provide valuable evidence that will help police departments, lawyers, judges, and juries get closer to the truth of what happens in these encounters and, hopefully, bring about positive changes to police tactics in these situations.

[1] Tribune Wire Reports, Two New Mexico Cops Charged with Murder in Shooting of Homeless Camper, Chicago Tribune (Jan. 12, 2015, 8:56 PM), http://www.chicagotribune.com/news/nationworld/chi-new-mexico-cops-charged-with-murder-20150112-story.html
[2] Id.
[3] Id.
[4] Josh Sanburn, How Body Cams on Cops Brought a Murder Charge in New Mexico, Time (Jan. 14, 2015), http://time.com/3667089/albuquerque-police-murder-charge-body-cameras/
[5] Stan Ziv, Study Finds Body Cameras Decrease Police’s Use of Force, Newsweek (Dec. 28, 2014, 2:31 PM), http://www.newsweek.com/amidst-debate-study-finds-body-cameras-decrease-polices-use-force-295315
[6] Officers’ Body Cameras Raise Privacy Concerns, Foxnews (Mar. 15, 2014), http://www.foxnews.com/us/2014/03/15/officers-body-cameras-raise-privacy-concerns/
[7] Stan Ziv, Study Finds Body Cameras Decrease Police’s Use of Force, Newsweek (Dec. 28, 2014, 2:31 PM), http://www.newsweek.com/amidst-debate-study-finds-body-cameras-decrease-polices-use-force-295315
[8] Lauren Victoria Burke, Oh, and President Obama’s Request for Police Body Cameras? It Wasn’t in the Budget Congress Just Passed, The Root (Dec. 18, 2014 10:49 AM), http://www.theroot.com/articles/politics/2014/12/congress_skips_body_cam_funding_request.html
[9] Id. (Los Angeles Mayor Eric Garcetti announced the Los Angeles Police Department will purchase 7,000 body cameras for its officers . . .”).

NBA Commissioner Adam Silver: A New Outlook on Sports Betting

Joey Kramer, KLJ Staff Editor

The week before Thanksgiving, NBA Commissioner Adam Silver made headlines when he became the first commissioner in the history of the major sports leagues – the NBA, NFL, MLB, NHL, and NCAA – to openly support sports gambling in the United States.  In an essay published in the New York Times, Silver wrote, “I believe that sports betting should be brought out of the underground and into the sunlight where it can be appropriately monitored and regulated.”The Professional and Amateur Sports Protection Act (PASPA) enacted in 1992 prohibits all but four states – Nevada, Delaware, Montana, and Oregon – from regulating sports betting.[i] Silver is essentially lobbying for Congress to eliminate this prohibition by creating a federal system that gives states the ability to regulate and monitor sports betting.[ii]  According to the Commissioner, illegal sports gambling is a $400 billion enterprise that has continued to grow despite the federal ban that resulted from PAPSA.[iii] By bringing sports betting “into the sunlight,” it’s possible that appropriate regulations could be created to continue to improve the integrity of the game.[iv] Silver noted several of the regulations that he hoped to see in the future, including: mandatory monitoring and reporting of unusual betting-line movements, a licensing protocol to ensure betting operators are legitimate, minimum-age verification requirements, and mechanisms to identify and exclude people with gambling problems.[v]Silver’s comments have been met with some confusion by critics, especially in light of current sports betting litigation in the state of New Jersey. In 2011, New Jersey passed a referendum to allow sports gambling in casinos and racetracks.[vi] The law was blocked by a United States district judge the following week.[vii]  The NBA, NFL, NHL, MLB, and the NCAA have been persistent in their efforts to prevent New Jersey from legalizing sports betting, with the NFL spearheading a lawsuit against the state.[viii]While Silver’s essay might not initially seem in line with the league’s position in the New Jersey lawsuit, a closer examination proves otherwise. The Commissioner only supports federally regulated sports betting; he does not support unregulated sports betting, which is essentially what the proposed New Jersey law allows. It’s feasible that he may one day support sports gambling in New Jersey’s casinos and racetracks, but not before numerous federally mandated regulations are put in place.Silver’s recent comments have also caused several critics to point out many potential risks of a legalized sports betting system such as the one Silver supports. One of the greatest areas of concern seems to be that legalized sports betting could tempt players to fix games to cash in on large bets. While I could see this as a potential (though unlikely) problem at the NCAA level, I find it highly improbable at the professional level. The simple fact is that lucrative salaries of professional athletes provide a strong incentive to avoid such temptations. Attempting to fix games carries with it several costs which athletes in today’s world would not be willing to risk.While I do believe there is much to be done before sports betting is legalized in the United States, I also think that Commissioner Silver’s comments represent a changing of the guard in the sports world. I agree with the Commissioner that federally mandated regulations could prove extremely beneficial and could actually improve the integrity of the games we all love. It will be interesting to see how the Third Circuit Court of Appeals handles the New Jersey litigation and how others in the sports industry address Commissioner Silver’s comments moving forward.

[i] David Purdum, Explaining Silver’s Betting Stance, Espn (Nov. 18, 2014), http://espn.go.com/chalk/story/_/id/11896833/gambling-explaining-nba-commissioner-adam-silver-stance-sports-betting.
[ii] Id.
[iii] Id.
[iv] Adi Joseph, NBA Commissioner Adam Silver Wants Legal Sports Gambling, USA Today (Nov. 13, 2014, 8:48 PM), http://www.usatoday.com/story/sports/nba/2014/11/13/adam-silver-sports-gambling-commissioner-new-jersey-editorial/18998755.
[v] Matt Moore, Adam Silver Writes in Support of Legalization of Sports Gambling, CBS Sports (Nov. 14, 2014, 2:39 AM), http://www.cbssports.com/nba/eye-on-basketball/24805520/adam-silver-writes-in-support-of-regulation-legalization-of-sports-gambling.
[vi] Brian Cohn, Sports Gambling: Charge or Block?, Brown Political Review (Nov. 21, 2014, 2:15 AM), http://www.brownpoliticalreview.org/2014/11/sports-gambling-charge-or-block.
[vii] Id.
[viii] Id.

An Update on the State of the Union - Same-Sex Marriage

Kirby Stephens, KLJ Staff Editor 

A few weeks ago, the United States Supreme Court declined all seven petitions for certiorari of the same-sex marriage cases before the court.[1] This outcome had been foreshadowed by an earlier statement from Justice Ginsburg, who said that unless a circuit split arose on the issue there was “no need for us to rush.”[2] Justice Ginsburg was specifically referencing the forthcoming decision from the United States Court of Appeals for the Sixth Circuit, which heard arguments surrounding bans in Tennessee, Ohio, Kentucky and Michigan in August.[3]According to FreedomtoMarry.org, after the Supreme Court’s Monday denial of the petitions, “Same-sex couples are able to marry in 29 states, and will soon be free to marry in an additional 6.”[4] The website tracks marriage equality by state and offers listings of both recent cases and laws surrounding marriage and marriage bans. [5]The constitutional law surrounding same-sex marriage is based largely around jurisprudence authored by Justice Kennedy. In Romer v. Evans, the Supreme Court invalidated a Colorado Constitutional Amendment that prohibited antidiscrimination laws aimed at protecting homosexuals as a violation of the equal protection clause.[6] The majority opinion, written by Justice Kennedy, explained that the classification drawn by the amendment “lack[ed] a rational relationship to legitimate state interests.”[7]Similarly, in Lawrence v Texas, the Supreme Court held unconstitutional a Texas statute that made it illegal for two persons of the same sex to engage in “deviate sexual intercourse.”[8] The majority opinion, again written by Justice Kennedy, overruled the previous decision of Bowers v. Hardwick and emphasized, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”[9]More recently, in United States v. Windsor, the Supreme Court struck down the definition of marriage in the federal Defense of Marriage Act. The Court, again led by Justice Kennedy, emphasized that “the principal purpose is to impose inequality” and that DOMA interfered with both the due process and equal protection rights protected by the Fifth Amendment.[10]  The Court continued to emphasize a lack of legitimate justification for such an action.[11]This same argument about lack of sufficient justification that was highlighted in Romer, Lawrence, and Windsor was echoed in Judge Posner’s recent opinion in the United States Court of Appeals for the Seventh Circuit, which struck down marriage bans in Wisconsin and Indiana.[12] Posner emphasized that whether Indiana or Wisconsin could provide “a clearly offsetting governmental interest” in rejecting same sex-marriage was “really the only issue” in the case.[13] Posner reached the same conclusion as Justice Kennedy – in a word: no.[14]While it is unclear exactly on what constitutional grounds, whether fundamental rights or equal protection, the right is based, the current trend seems to be toward recognizing a right same sex marriage. It is also clear the Supreme Court will not consider the issue at this time. The Supreme Court further emphasized this decision Friday when they declined a request by Idaho officials to postpone a lower court ruling that nullified Idaho’s ban on same-sex marriage.[15] It is unclear what the Supreme Court will do if a circuit split arises. Decisions are currently pending in the Fifth, Sixth, and Eleventh Circuits.[16] If one of those circuits upholds a marriage ban, it could force the Supreme Court into deciding an issue it has avoided for now.

[1] Amy Howe, Today’s orders: Same-sex marriage petitions denied, SCOTUS BLOG (Oct. 6, 2014, 10:41 am), http://www.scotusblog.com/2014/10/todays-orders-same-sex-marriage-petiti....
[2] Associated Press, Ruth Bader Ginsburg Talks Gay Marriage, Politico (Sept. 16, 2014, 9:04 PM), http://www.politico.com/story/2014/09/supreme-court-gay-marriage-ruth-ba....
[3] Id.; Steve Delchin, Still Waiting On Sixth Circuit’s Same-Sex Marriage Rulings As U.S. Supreme Court Denies Cert Petitions In Same-Sex Marriage Appeals From Three Other Circuits, Sixth Circuit App. Blog (Oct. 6, 2014), http://www.sixthcircuitappellateblog.com/news-and-analysis/still-waiting... Steve Delchin, Sixth Circuit Gearing Up To Hear Same-Sex Marriage Appeals On August 6, 2014, Sixth Circuit App. Blog (July 21, 2014), http://www.sixthcircuitappellateblog.com/news-and-analysis/sixth-circuit....
[4] Where State Laws Stand, Freedomtomarry.org, http://www.freedomtomarry.org/pages/where-state-laws-stand (last visited Oct. 13, 2014).
[5] Marriage Rulings in the Courts, Freedomtomarry.org, http://www.freedomtomarry.org/pages/marriage-rulings-in-the-courts (last visited Oct. 13, 2014) [https://perma.cc/7EH2-LK4W]; States, Freedomtomarry.org, http://www.freedomtomarry.org/states (last visited Oct. 13, 2014).
[6] Romer v. Evans, 517 U.S. 620 (1996).
[7] Id. at 632.
[8] Lawrence v. Texas, 539 U.S. 558, 563 (2003).
[9] Id. at 578; Bowers v. Hardwick, 478 U.S. 186 (1986).
[10] Id. at 2694-95; Though not immediately apparent from the language of the Fifth Amendment, it has been held to also include an analogue to the 14th Amendment’s equal protection clause, which then applies to the federal government. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954).
[11] Id. at 2696 (“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”).
[12] Baskin v. Bogan, No. 14-2386 to 14-2388, No. 14-2526, at 3 (7th Cir. Sept. 4, 2014) (“We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage.”).
[13] Id. at 13-14
[14] Id. at 38.(“ To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”).
[15] Lyle Denniston, No delay on Idaho same-sex marriages (FURTHER UPDATE for Alaska ruling), SCOTUS BLOG (Oct. 11, 2014, 7:04 AM), http://www.scotusblog.com/2014/10/no-delay-on-idaho-same-sex-marriages.
[16] Id.

Inherent Interest in Directors' Decisions Related to Executive Compensation

Nolan M. Jackson, KLJ Staff Editor [i]

Delaware – the hotbed for business incorporation – got it wrong.[ii] In In re Walt Disney Co. Derivative Litigation, the Delaware Supreme Court reviewed a corporate decision on the compensation owed to the Walt Disney Company chief executive by presuming the disinterestedness of the corporate decision-makers. The Court’s opinion wrongly applied the forgiving business judgment rule where it should have scrutinized the Disney directors’ decision on executive compensation under a less deferential standard that recognizes directors’ interest in decisions affecting executive compensation.The business judgment rule presumes that corporate directors decide upon reasonable informedness, in good faith, and disinterestedly (independently). Where a plaintiff shareholder cannot rebut any of the business judgment predicates, Delaware courts measure the rationality between the directors’ decision and the entity’s interests.[iii] The presumption accords considerable deference to directors’ decisions.[iv] It ignores, however, considerable evidence and practical understanding that directors decide the compensation of their executives interestedly.Scholarship suggests and corporate authorities recognize that directors are inherently interested in the compensation of the executives whom they oversee. For example, corporate executives play a significant role in nominating directors of the board, and directors clearly have an interest in retaining directorships that have become increasingly exorbitant.[v] “[D]irectors who displease a CEO will often find it difficult to retain their board seats. Accordingly, a director who has a material financial incentive to retain his directorship will not really be independent of the CEO.”[vi] Critical of the misapplication of the business judgment rule in Disney, D.A. Jeremy Telman addresses Disney Chairman Michael Eisner’s influence over his board members and financial interest in the board’s approval of a lucrative executive compensation package:Eisner stacked his . . . board of directors with friends and other acquaintances who, though not necessarily beholden to him in a legal sense, were certainly   more willing to accede to his wishes   and support him unconditionally than truly independent directors . . . Because Eisner's compensation package would have to be at least as generous as that of his subordinate, Eisner and the board he controlled had every reason to make [the executive’s] compensation package as generous as possible (internal citations and quotations omitted).[vii]Moreover, the New York Stock Exchange’s listing standards – presumably to protect against the chief executive’s influence over the corporate board and its decisions on his or her compensation – require a compensation committee of independent directors charged with approving chief executive compensation.[viii] While the listing standards permit the committee to hire a compensation consultant responsible for independent assessment of the executive’s compensation package, some have recognized the executive’s influence over the hiring of such consultants.[ix]Despite evidence of directors’ interest in decisions affecting the corporate executive’s compensation, still Delaware reviews the reasonableness of directors’ decisions on executive compensation under a standard that presumes directors’ disinterestedness. Simply, Delaware wrongly applies the business judgment rule where it should apply a standard of review that recognizes directors’ interest in decisions affecting executive compensation. Such an alternative, the intrinsic fairness standard, for example, rather than presuming directors’ disinterestedness, requires directors to prove the fairness of corporate decisions.[x] While not necessarily advocating for the application of the intrinsic fairness standard to directors’ decisions on executive compensation, I mention intrinsic fairness to demonstrate that alternatives to the business judgment rule exist – alternatives that do not presume disinterestedness in the face of practical understanding that directors decide the compensation of their executives interestedly.Delaware’s jurisprudence misapplies the business judgment rule in review of corporate directors’ decisions on executive compensation. Misapplication harms shareholders and grows inequity. Demonstrated in Disney, the business judgment rule accords deference to directors’ decisions on executive compensation that leave shareholders on the hook for parachute payouts upon termination.[xi] Also, deferential review of directors’ decisions on compensation grows inequality. Judicial deference encourages corporate executives to manipulate directors’ decision-making (i.e. nominate friendly directors to the board; call for exorbitant benefits, bonuses, and options; and hire consultants receptive to the executive’s suggested compensation package); since 1992, the ratio between the average chief executive and the average large-company employee has ballooned to 500:1.[xii]Admittedly the topic of judicial review of directors’ decisions on executive compensation implicates legal and economic considerations that a blog entry cannot accommodate; a fairer discussion would acknowledge the proportionality standard of review as expanded to directors’ decisions on compensation[xiii], more thoroughly describe the intrinsic fairness standard[xiv], and address the “market”[xv] for chief executive compensation. This brief entry, however, must limit its acknowledgments to the standard of review that the state for incorporation applies to directors’ decisions on executive compensation. Practical understanding suggests that Delaware wrongly applies the business judgment rule.

[i] Second-year law student at University of Kentucky College of Law; Juris Doctor candidate, May 2016; B.A. 2013, University of Kentucky.
[ii] See Melvin Aron Eisenberg & James D. Cox, Corporations and Other Business Organizations (10th ed. 2011), 208-09.
[iii] Id. at 645.
[iv] See id. (“An example of a decision that fails to satisfy the rationality standard is a decision that cannot be coherently explained.”)
[v] See Eisenberg & Cox, supra note 2, at 779; Rutherford B. Campbell, Business Associations 851-001 Fall-2014, (2014) (In 2006, former Georgia Senator Sam Nunn received $536,233 for his service on General Electric’s board of directors. That year, Nunn concurrently served on the boards of Coke, Dell, and Chevron.) (on file with author).
[vi] Eisenberg & Cox, supra note 2, at 778.
[vii] D.A. Jeremy Telman, Note, The Business Judgment Rule, Disclosure, and Executive Compensation, 81 Tul. L. Rev. 829, 883-85 (2007).
[viii] NYSE, Inc., Listed Company Manual § 303A.05(a)(i)(A) (2002).
[ix] Id. at (c)(i); see Telman, supra note 7, at 870. (“[C]onsultants are hired by management. They’re going to be rehired by management . . . [T]he basic goal of compensation consultants is to justify whatever it is the CEO wants to make.”)
[x] See Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983).
[xi] See Eisenberg & Cox, supra note 2, at 693. (Sixteen months into a five-year contract, Disney chief executive Michael Ovitz received $140 million in severance.)
[xii] Eisenberg & Cox, supra note 2, at 775.
[xiii] See generally Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983) (affirming the application of a fairness standard where a predicate of the business judgment presumption is absent).
[xiv] See generally Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986) (recognizing an interest contradictory to shareholders’ interest in wealth maximization when corporate directors implement defensive measures and affirming the application of a standard of review that measures the reasonableness of anti-takeover measures and proportionality to the threat posed by takeover when implemented by a corporate board).
[xv] See 17 Douglas A. Michael, The Corporate Officer’s Independent Duty as a Tonic for the Anemic Law of Executive Compensation, 17 J. Corp. L. 785, 802 (“An observer might be tempted to conclude that a functioning market exists for the CEOs of large United States corporations.”)

The Quarantine Debate: Containment of Disease or Restraint of Liberty?

Joseph J. Sherman and Kirby Stephens, KLJ Staff Editors

Introduction

Last Tuesday marked nurse Kaci Hickox’s twenty-first asymptomatic day since her last exposure to an Ebola patient. The day also officially ended her monitoring period as set up in a settlement with the State of Maine and the Maine Department of Health and Human Services.[1] The terms of her monitoring had included among other conditions: (1) direct active monitoring; (2) coordinating her travel plans with public health officials; (3) avoiding the use of public transportation; (4) avoiding congregate public places and workplaces; and (5) “maintain[ing] a 3-foot distance from others when engaging in non-congregate public activities.”[2] While Nurse Hickox, her family and loved ones, as well as the general public, are certainly breathing a sigh of relief, her story has sparked a national debate over the advisability and constitutionality of quarantining health care workers who came into contact with Ebola patients.This blog presents the arguments both in opposition to and in defense of quarantine. These arguments are constructed as if a person challenging quarantine were basing their challenge on their liberty interest in refusing medical treatment. While this is not the only way to approach this question, it is one of the most central arguments surrounding the constitutionality of quarantines.Arguably, quarantine is a type of medical treatment. An order of quarantine may come in tandem with an order for medical treatment.[3] But more than that, it seems reasonable to believe that quarantine would facilitate appropriate medical care for patients with delicate, highly contagious, or deadly conditions. To what extent, then, can individual patients refuse to be treated? To what extent can they refuse quarantine?The right to refuse medical treatment has been described by the Supreme Court as a “liberty interest.”[4] Whereas a fundamental right would afford Hickox and others greater constitutional protection against a quarantine, a liberty interest is generally something less that can be overcome by state interests. In Cruzan v. Missouri Dep’t of Health, the Supreme Court assumed that there is a right for a competent patient to refuse medical treatment, even if it is life-sustaining.[5] While the Court has not explicitly articulated a standard of review for cases involving the right to refuse medical treatment,[6] the Court’s language suggests that it may favor rational basis review for such constitutional challenges.[7] Nevertheless, lower federal courts have used strict scrutiny when addressing this liberty interest.[8] Under strict scrutiny, a state must articulate a “compelling government interest” that justifies an intrusion into a citizen’s rights, and the intrusion must be “narrowly tailored” to achieving that interest.[9]

In Opposition to Quarantine

Joseph J. Sherman, KLJ Staff Editor

The first question is whether the government has a compelling interest in keeping aid workers under quarantine until it is clear that they do not have Ebola. The government frequently cites public health as a compelling interest for its actions.[10] In Jacobson v. Massachusetts, the state of Massachusetts used its state interest in public health to justify compulsory vaccination against smallpox.[11] When there is a threat of epidemic, as the court found that there was in Jacobson, the government has an increased interest in administering medical care.[12]The narrower question, then, is whether the threat of an Ebola epidemic is serious enough to make the government’s interest in public health a compelling one. The Centers for Disease Control and Prevention say that “the risk of an outbreak in the U.S. is very low.”[13] According to the Centers for Disease Control and Prevention, there have been four cases of Ebola diagnosed in the United States, and there has been only one death.[14] Other than direct contact with fruit bats and monkeys, Ebola only spreads by direct contact with “blood or body fluids . . . of a person who is sick with Ebola” or “objects . . . that have been contaminated with the virus.”[15] In Jacobson, the Court recognized that the Smallpox epidemic was out of control.[16]  For the foregoing reasons, it is not clear that-any state has a compelling interest in public health related to the Ebola outbreak in West Africa. We can probably assume that the government has a legitimate interest in public health related to the Ebola virus, but it is unclear that that interest rises to the level of being compelling in any constitutional analysis.Even if we can assume the government had a compelling interest, the second question is whether  quarantine is narrowly tailored to that interest. In other words, is quarantine necessary? Generally, government action is not narrowly tailored to its compelling interest if it is unnecessary or there are other ways of achieving that interest.[17] In Hickox’s case, it would be difficult to argue that her quarantine was narrowly tailored. Ebola has a long incubation period of up to twenty-one days, during which the carrier is not contagious.[18] Only after symptoms develop does an individual become dangerous to others around them.[19]One important purpose of a quarantine, if construed as medical treatment, is to monitor the quarantined individual for changes in their condition. However, Hickox and other medical professionals have the ability to monitor their own medical condition, and thus they are not similarly situated with the rest of the population. In other words, a quarantine is not necessary in carrying out the government’s interest. When medical professionals travel to West Africa, they do so for the sole purpose of abating the pandemic that has gripped the region. Upon return, it is unreasonable to believe that those same professionals would immediately throw caution to the wind and risk the safety of Americans by venturing out when their condition was unsafe. Put simply, they know the symptoms of Ebola, and they know what to do if such symptoms manifest.In Hickox’s case, Maine law authorizes a court to “make such orders as it deems necessary to protect other individuals from the dangers of infection” pending a hearing on a petition for a public health order.[20] Interestingly, this language mirrors the language of the Supreme Court, which requires narrow tailoring of any laws that curtail the right to refuse medical treatment.[21] The State of Maine failed to “prove by clear and convincing evidence that limiting [Hickox’s] movements to the degree requested [was] ‘necessary to protect other individuals from the dangers of infection.’”[22] Given the findings of both the district court in Maine, the Centers for Disease Control and Prevention, and the World Health Organization, it is far from clear that quarantine of aid workers is constitutional.However, there are those who disagree.[23]

In Defense of Quarantine

Kirby Stephens, KLJ Staff Editor

Assuming that quarantined workers would have a liberty interest recognized by the United States Constitution and the United States Supreme Court to refuse medical treatment, the state interests outweigh any individual interests. Both Federal and local governments have compelling state interests in protecting public health and preventing the spread of Ebola. This compelling interest is demonstrated by the high mortality rate among Ebola patients as well as the demonstrable lack of vaccine, despite several trials currently ongoing.[24] Public health and safety concerns have been previously recognized by the United States Supreme Court. In Jacobsoen v. Massachusetts, the Supreme Court affirmed a forcible vaccination law implemented by the Cambridge Massachusetts Board of Health to stop the spread of smallpox.[25] The Court explained: “According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and public safety.”[26] The same concerns are at issue here. It is unclear that this state interest can be disputed.The more pressing issue is whether a state’s proposed quarantine laws are narrowly tailored to the state’s interest in protecting public health. Symptoms of Ebola can appear anywhere from two to twenty-one days after exposure with symptoms appearing on average within eight to ten days after exposure.[27] Further, the early symptoms of Ebola, like fever, are “nonspecific” to Ebola and the virus is detectable in the blood only after a person is symptomatic.[28] The CDC reports that “it may take up to three days after symptoms start for the virus to reach detectable levels.”[29] Given these concerns, it is narrowly tailored to require a person who has been exposed to Ebola to be fully -quarantined during the course of the full twenty-one day period to control the spread of Ebola. This quarantine is also beneficial for the potentially infected individual as during quarantine, the individual would be subject to constant monitoring and medical treatment. Simply because Nurse Hickox, or another quarantined medical worker like her, would be able to monitor their own symptoms does not change the analysis. A person who can monitor their own health still poses the same health risks as any other potentially infected person. Given the risks posed by Ebola, the best solution is quarantine, even though it may have required an imposition on the liberty interests of the effected individual.In a recent article in The Guardian, Nurse Hickox accused “ambitious” politicians of playing on public fears to garner support for their quarantine policies and in her words, “escalat[e] anxieties and giv[e] the public permission to discriminate, stigmatize and even hate aid workers like me.”[30] Nurse Hickox is correct that public policy should not be motivated by fear, but fear is not the same thing as caution. Given the known facts about Ebola, fear is not the major motivation behind quarantine policy, caution is. While it is true that healthcare and other aid workers should be applauded for their heroism in times of crisis, it is undeniable that their heroism poses risks that must be remedied upon their return to their homes. Based on the above grounds, Federal and state governments would have the power to constitutionally impose quarantine restrictions on returning aid workers.

Conclusion

Ebola is emerging as a serious international crisis. According to a recent World Health Organization publication, there have been 5459 reported deaths from Ebola out of a total 15,351 reported cases in eight effected countries since the beginning of the outbreak.[31]  These numbers do not include the recent death of Dr. Martin Salia at a hospital in Nebraska.[32] These numbers indicate that the risk of a potential outbreak is far from over and that the United States could soon be faced with another situation like Nurse Hickox’s quarantine. In her case, the Maine courts imposed something in between the absolute positions argued above. However, this is a debate that is far from over.

[1] Temporary Order, Mayhew v. Hickox, No. CV-2014-36 (Me. Dist. Ct. Oct. 30, 2014); Jacob Gershman, Nurse Who Defied Ebola Quarantine Reaches Settlement with Maine, WSJ L. Blog (Nov. 3, 2014, 1:06 PM ET), http://online.wsj.com/articles/BL-LB-49694.
[2] Temporary Order, Hickox, No. CV-2014-36.
[3] See, e.g., Livingston v. State, 995 A.2d 812, 823 (Md. Ct. Spec. App. 2010).
[4] Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 278 (1990); Jacobson v. Mass., 197 U.S. 11, 24-30 (1905).
[5] Cruzan, 497 U.S. at 278.
[6] See generally Cruzan, 497 U.S.
[7] Cruzan, 497 U.S. at 262, 281, 298 (referring repeatedly to the state’s “legitimate interest[s]” (emphasis added)).
[8] See, e.g., Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 359 (2d Cir. 2004) (recognizing the “right to reject life-sustaining medical treatment as a function of the fundamental right to bodily integrity under the Due Process Clause” (emphasis added)).
[9] See, e.g., Blouin, 356 F.3d at 359.
[10] See, e.g., Jacobson, 197 U.S. at 11.
[11] See generally id.
[12] Id. at 27 (stating that “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members”).
[13] Ctrs. for Disease Control & Prevention, Questions and Answers on Ebola, http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/qa.html (last updated Nov. 20, 2014).
[14] Ctrs. for Disease Control & Prevention, Cases, http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/case-counts.html (last updated Nov. 24, 2014).
[15] Ctrs. for Disease Control & Prevention, Transmission, http://www.cdc.gov/vhf/ebola/transmission/index.html (last updated Nov. 20, 2014).
[16] Jacobson, 197 U.S. at 28.
[17] See, e.g., Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 733 (2007).
[18] Ctrs. For Disease Control & Prevention, Signs and Symptoms, http://www.cdc.gov/vhf/ebola/symptoms/index.html (last updated Nov. 2, 2014); Ctrs. For Disease Control & Prevention, Diagnosis, http://www.cdc.gov/vhf/ebola/diagnosis/index.html (last updated Nov. 14, 2014).
[19] Diagnosis, supra note 18.
[20] Me. Rev. Stat. Ann. tit. 22 § 811(3) (West 2014); Order Pending Hearing, Mayhew v. Hickox, No. CV-2014-36, 1 (Me. Dist. Ct. Oct. 31, 2014), available at http://courts.maine.gov/news_reference/high_profile/hickox/order_pending_hearing.pdf.
[21] See, e.g., Ragland, 481 U.S. at 231; Parents Involved, 551 U.S. at 733.
[22] Order Pending Hearing, Hickox, No. CV-2014-36 at 3.
[23] See infra In Defense of Quarantine.
[24] Ctrs. for Disease Control & Prevention, Ebola Virus Disease Information for Clinicians in U.S. Healthcare Settings, http://www.cdc.gov/vhf/ebola/hcp/clinician-information-us-healthcare-settings.html (last updated Nov. 24, 2014).
[25] Jacobson v. Mass., 197 U.S. 11, at 12-13 (1905).
[26] Id. at 25.
[27] Signs and Symptoms, supra note 18.
[28] Diagnosis, supra note 18.
[29] Id.
[30] Stop Calling Me ‘the Ebola Nurse,’ TheGuardian.com Opinion (Nov. 17, 2014, 7:30 EST), http://www.theguardian.com/commentisfree/2014/nov/17/stop-calling-me-ebola-nurse-kaci-hickox.
[31] World Health Organization, Ebola Response Roadmap: Situation Report Update, 1 (Nov. 21, 2014), available at http://apps.who.int/iris/bitstream/10665/144117/1/roadmapsitrep_21Nov2014_eng.pdf?ua=1 .
[32] Ashley Fantz, Doctor’s Death Marks Second U.S. Ebola Fatality, CNN Health (Nov. 17, 2014, 9:34 PM EST), http://www.cnn.com/2014/11/17/health/ebola-u-s-/.

The Sixth Circuit Speaks: Upholds Same-Sex Marriage Bans

Kirby Stephens, KLJ Staff Editor

Last week, the Sixth Circuit finally ruled on the same-sex marriage cases before it and upheld the bans from Kentucky, Michigan, Ohio and Tennessee by a two to one vote. Though it began its opinion by noting that the recognition of gay marriage seems almost inevitable, the two-judge majority expressed concern that the issue should be more properly addressed through the democratic process.[1]The majority engaged in an analysis of history and tradition as part of its conclusion, explaining:Not long ago American society took for granted the rough correlation between marriage and creation of new life, a vision under which limiting marriage to opposite-sex couples seemed natural. Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today’s society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second.[2]Along with this analysis, the majority pointed to the fact the other circuits that have chosen to overturn state bans on same-sex marriage have not agreed on a consistent reason for doing so.[3]Calling the majority’s opinion “an introductory lecture in Political Philosophy,” dissenting Senior Circuit Judge Martha Craig Daughtrey castigated the majority’s decision to “wait and see” and “let the people decide.”[4] She concluded, “If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams."[5]This decision has left some commentators cheering, as it has created exactly what Justice Ginsburg heralded it might take for the Supreme Court to grant certiorari in a same-sex marriage case: a circuit split.[6] Currently, the Fourth, Seventh, Ninth and Tenth Circuits stand in disagreement with the Sixth Circuit.  Despite speculation about whether litigants would petition for hearing en banc at the Sixth Circuit first, there has been some indication of an immediate appeal to the Supreme Court.[7] Amidst the ongoing national debate, the Supreme Court may now be forced to take up the question it neatly sidestepped a little over a month ago.In the meantime, the Sixth Circuit has provided some light reading for the wait. The opinion, including a description of the facts of each case, can be found here.

[1] DeBoer v. Snyder, Nos. 14-1341, 14-3057, 14-3464, 14-5291, 14-5297, 14-5818, slip op. at 7 (6th Cir. 2014); Id. at 42 (“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”).
[2] Id. at 36-37.
[3] Id. at 16.
[4] Id. at 60 (Daughtrey, J. dissenting).
[5] Id. at 63-64 (Daughtrey, J. dissenting).
[6] Jonathan Capeheart, Hurray for the 6th Circuit rejection of gay marriage, Washington Post (Nov. 7, 2014), http://www.washingtonpost.com/blogs/post-partisan/wp/2014/11/07/hurray-for-the-6th-circuit-rejection-of-gay-marriage/.
[7] Lyle Denniston, Sixth Circuit: Now, a split on same-sex marriage, SCOTUS BLOG (Nov. 6, 2014, 4:50 pm), http://www.scotusblog.com/2014/11/sixth-circuit-the-split-on-same-sex-marriage/.

On Solid Ground: In Defense of Death with Dignity

Joseph J. Sherman, KLJ Staff Editor

In early October 2014, Brittany Maynard captured the attention of Americans when she announced her intention to end her own life in response to her cancer diagnosis.[1] Maynard was a California woman who was diagnosed with terminal glioblastoma.[2] However, since California prohibits physician-assisted death, she and her family made the difficult decision to move to Oregon, where she could legally seek such medical care.[3] 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.[4] Her choice to end her own life, rather than to let her tumor take its natural course, has generated a great deal of controversy about physician-assisted death,[5] which is also referred to as “Death with Dignity” (hereinafter “DWD”).[6] 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 do DWD laws have on the future of end-of-life care?One contributing factor to this controversy may be a simple lack of information about the legal framework surrounding DWD. “Physician-assisted [death] occurs when a physician facilitates a patient’s [death] by providing the necessary means and/or information to enable the patient to perform the life-ending act.”[7] This definition is distinct from the refusal of life-saving medical care, which the United States Supreme Court has recognized as a liberty interest protected by the Constitution.[8] The Court declined to recognize a similar liberty interest for suicide, holding state bans on physician-assisted death to be constitutional as long as they neither infringe on citizens’ fundamental rights nor involve suspect classifications under the Equal Protection Clause of the Fourteenth Amendment.[9]There are only three states that statutorily allow physician-assisted death. In 1994, Oregon voters passed an initiative making them the first state in the United States to legalize the practice.[10] In 2008, Washington became the second state to endorse DWD by voter initiative.[11] In 2013, the Vermont legislature passed a bill to protect patient choices at the end of life.[12]Court rulings in two other states also allow for DWD. In 2009, the Montana Supreme Court ruled that doctors in Montana could not be prosecuted for assisting their patients to end their own lives.[13] In a recent New Mexico state court ruling, a district court judge issued an injunction preventing the prosecution of doctors who facilitate the end of life in competent, terminally ill patients.[14] However, the New Mexico ruling was not made by the state’s court of last resort, and the New Mexico Attorney General is considering an appeal of the decision.[15]The American Medical Association expressly disapproves of physician-assisted death, arguing that it is “fundamentally incompatible with the physician’s role as healer.”[16] But is that always true when a patient is in great pain, suffering from a terminal illness for which treatment is futile? Some medical professionals argue that the DWD movement is a “slippery slope,” pointing to other developed nations where they say the movement has gone awry.[17] In Holland and Belgium, for example, certain organizations apparently provide euthanasia to patients with clinical depression and no terminal physical illness.[18]However, without addressing the value of those claims, it is at least questionable to suggest that outright euthanasia programs could exist in the legal framework of the United States. The U.S. Supreme Court has time and again recognized the interest of states in preserving human life.[19] When weighing a citizen’s liberty interests, courts are also likely to recognize a state’s “legitimate interest[] in . . . protecting vulnerable individuals.”[20] These government interests can only be overcome when there is a terminal illness and medical care is futile. There is no legal foundation to the contention that the natural endpoint of the DWD movement is state-sanctioned suicide for non-life-threatening conditions. The United States has only been willing to allow physician-assisted death in cases where death is already imminent, and that is unlikely to change soon.Since Brittany Maynard carried out her intentions to end her own life, end of life organizations have reinvigorated their advocacy efforts. Compassion & Choices, a nonprofit organization “committed to helping everyone have the best death possible,”[21] has set up the Brittany Maynard Fund to aid in the effort “to expand the death-with-dignity option to all.”[22] That expansion has touched only five states so far, but more states should take notice. When terminally ill patients have the means and the will to travel, the prohibition against physician-assisted death serves only to force already-suffering families to relocate in order to avail themselves of DWD laws elsewhere. In the absence of such means or will, many patients face a painful natural death.In the wake of Maynard’s decision, states would be wise to reconsider the benefits of DWD. Currently, most states inadvertently send a grim message to their terminally ill residents: “Leave or suffer the consequences.” That is the last message any state should want to send.

[1] E.g., Brandon Griggs, Dying Young: Why Brittany Maynard’s Story Resonates, CNN Living (Oct. 14, 2014, 4:28 PM EDT), http://www.cnn.com/2014/10/08/living/death-dignity-brittany-maynard/.
[2] Nicole Weisensee Egan, Terminally Ill Woman Brittany Maynard Has Ended Her Own Life, People Exclusive (Nov. 2, 2014, 7:35 PM ET), http://www.people.com/article/brittany-maynard-died-terminal-brain-cancer.
[3] The Brittany Maynard Fund, Compassion & Choices, http://www.thebrittanyfund.org/ (last visited Nov. 10, 2014).
[4] Eyder Peralta, As Planned, Right-To-Die Advocate Brittany Maynard Ends Her Life, NPR: Blog (Nov. 3, 2014, 8:27 AM ET), http://www.npr.org/blogs/thetwo-way/2014/11/03/361094919/as-planned-righ...; Egan, supra note 2.
[5] See, e.g., Peralta, supra note 4; Egan, supra note 2.
[6] See, e.g., Compassion & Choices, supra note 3.
[7] Am. Med. Ass’n, Opinion 2.211 – Physician-Assisted Suicide (1994), available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-....
[8] See Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261 (1990).
[9] Vacco v. Quill, 521 U.S. 793, 799 (1997); Washington v. Glucksberg, 521 U.S. 702, 719-28 (1997).
[10] Or. Rev. Stat. Ann. §§ 127.800-897 (West 2014). The United States Attorney General attempted to block Oregon’s law by determining that physician-assisted death was not a legitimate medical practice under the Controlled Substances Act. Gonzales v. Oregon, 546 U.S. 243, 249 (2006). See 21 U.S.C. §§ 801-904. However, the Supreme Court ruled that such a determination fell within the states’ traditional police powers and not with the power of the U.S. Attorney General. Gonzales, 546 U.S. at 923.
[11] Wash. Rev. Code Ann. §§ 70.245.010-904 (West 2014).
[12] Vt. Stat. Ann. tit. 18, §§ 5281-92 (West 2014). The bill was signed into law on My 20, 2013, but many substantive portions of the law will not take effect until July 1, 2016. Id.
[13] Baxter v. State, 224 P.3d 1211 (Mont. 2009).
[14] Morris v. Brandenberg, 2014 NM Dist. Ct. 2909U, ¶ PP, available at http://agoodgoodbye.com/wp-content/uploads/2014/01/199446010-Physician-a...See also Phil Milford, Right to Die with Doctor’s Help Affirmed in New Mexico, Bloomberg News (Jan. 14, 2014, 1:33 PM ET), http://www.bloomberg.com/news/2014-01-14/right-to-die-with-doctor-s-help....
[15] Milford, supra note 14.
[16] Am. Med. Ass’n, supra note 7.
[17] Ira Byock, Doctor-Assisted Suicide is Unethical and Dangerous, NY Times Opinion (Oct. 6, 2014), http://www.nytimes.com/roomfordebate/2014/10/06/expanding-the-right-to-d....
[18] Id.
[19] E.g., Cruzan, 497 U.S. at 280; Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (reaffirming the state’s interest in the preservation of fetal life articulated in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 838 (1992); Roe v. Wade, 410 U.S. 113, 163-64 (1973)).
[20] E.g., Vacco, 521 U.S. at 798. Individuals in this class might include the elderly or the mentally or physically disabled.
[21] About, Compassion & Choices, https://www.compassionandchoices.org/who-we-are/about/ (last visited Nov. 10, 2014).
[22] Compassion & Choices, supra note 3.

What's a Birthday Party with No Cake?

Taylor Poston, KLJ Staff Editor

Students at one Kentucky school are no longer allowed to have their cake and eat it too—at least at birthday parties.Due to a revision in their school’s wellness policy, students at Burlington Elementary School will no longer be able to have food at birthday celebrations.[i] The school decided to change its policy, in part, to comply with federal guidelines.[ii] Parents and school officials said that it was not an easy decision to ban the treats, but practically, it would better serve the students and their learning environment.[iii]Burlington Elementary School, which is part of the Boone County school district in northern Kentucky, is not alone nationally in its decision to ban certain foods from celebrations.[iv] A Seattle suburb has also banned birthday treats, as well as schools in Kalamazoo, Michigan; Boulder, Colorado; Louisville, Kentucky; and Minneapolis, Minnesota.[v]This movement toward banning certain unhealthy foods from schools, though objectionable to some, may be a smart way schools can help promote healthy lifestyles for their students.Obesity, and particularly childhood obesity, has become a significant health concern in the United States. According to the Centers for Disease Control and Prevention, approximately seventeen percent of children (ages 2-19) are obese nationwide.[vi] The percentage of Kentucky children who are obese is even higher, at around 19.7 percent.[vii]Any local educational agency participating in the National School Lunch Program and/or the School Breakfast Program must develop a wellness policy.[viii] The purpose of the policies is to promote “students’ health, well-being, and ability to learn.”[ix] The wellness policy requirement was established by legislation in 2004 and further strengthened by legislation in 2010.[x]In February 2014, the Department of Agriculture proposed certain regulations under the Healthy, Hungry-Free Kids Act of 2010 “to create a framework and guidelines for written wellness policies established by [local educational agencies].”[xi] The proposed rule, titled Local School Wellness Policy Implementation, contained different provisions concerning topics like public involvement and the content of the wellness policy.[xii] For example, local educational agencies must place “wellness policy leadership” in someone who would have the authority and responsibility to ensure compliance with the policy and must permit participation by the general public and the school community in the wellness policy process.[xiii] Nutrition promotion and education and physical activity would be goals of the policies, and local educational agencies would be required to provide annual progress reports.[xiv] In addition, policies would be assessed every three years, and state agencies would play a role in assessing compliance with the wellness policy requirements.[xv]Wellness policies can help schools create a structured course to keep students healthier. A birthday cake ban may seem harsh, but childhood obesity is a legitimate concern for society. Parents at Burlington Elementary School said that on particular days, students could have as many as three parties.[xvi] With the average store-bought cupcake containing 298 calories[xvii], multiple sugary treats add up. And, while students may not be permitted to have cupcakes or ice cream, some schools, like Burlington Elementary, will permit students to have non-food items, such as pencils and erasers.[xviii] One student was creative and brought jump ropes to school for his birthday, which provided a healthy way for his class to celebrate.[xix]By encouraging health in students early on, school bans on items like cupcakes and ice cream can help promote better lifestyles for students, which could allow them to celebrate many more birthdays.

[i] Jessica Brown, Burlington school bans birthday cake, sweets, Cincinnati.com (Oct. 13, 2013, 7:19 PM), http://www.cincinnati.com/story/news/2014/10/10/burlington-elementary-ba....
[ii] Id.
[iii] Id.
[iv] Id.
[v] Id.; Jacoba Urist, Cupcake ban: Schools crack down on sweets, Today.com (Aug. 5, 2014, 8:21 AM), http://www.today.com/parents/cupcake-ban-schools-crack-down-birthday-tre....
[vi] Childhood obesity facts, Centers for Disease Control and Prevention, http://www.cdc.gov/obesity/data/childhood.html (last visited Oct. 29, 2014).
[vii] Childhood overweight and obesity trends, National Conference of State Legislatures, http://www.ncsl.org/research/health/childhood-obesity-trends-state-rates... (last visited Oct. 29, 2014).
[viii] Local School Wellness Policy Implementation Under the Healthy, Hunger-Free Kids Act of 2010: Summary of the Proposed Rule, (March 2014), http://www.fns.usda.gov/sites/default/files/LWPproprulesummary.pdf.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Brown, supra note 1.
[xvii] EatingWell Editors, How Many Calories Are in Your Cupcake?, EatingWell.com (May/June 2010), http://www.eatingwell.com/healthy_cooking/kids_cooking/how_many_calories_are_in_your_cupcake.
[xviii] Brown, supra note 1.
[xix] Id. 

With Liberty and Spectrum For All

Dylan Merrill, KLJ Staff Editor

Imagine a world without garage door openers, baby monitors, and Bluetooth headsets. A little strange, right? What about life without wireless Internet? Even stranger. These groundbreaking technologies have become integral to our daily lives, in a way that few of us could have predicted.[1] This phenomenon begs the question: what other groundbreaking inventions will arise in the next decade? And how can our legal and regulatory framework help encourage these innovations?The answer largely depends on how the federal government regulates a scarce but precious resource--not oil, water, or food, but something called “wireless spectrum”. Wireless spectrum is roughly equivalent to radio airwaves. When you think how old-time radio worked, you might imagine a tall tower, signals radiating outward like ripples in a pond, eventually reaching a living room radio antenna. Television signals worked this way, too. And the pathway that these signals traveled on is called “spectrum.” The Federal Communications Commission was created in part to distribute spectrum in a fair manner. Historically, this has meant giving private businesses the opportunity to pay for exclusive licenses to operate on their own chunks of spectrum. However, there simply is not enough spectrum to fill everyone’s needs.[2] As television and radio stations have curtailed their spectrum use, cell phone providers have become avid spectrum licensees, making it more difficult for others to get their own spectrum licenses. Thankfully, however, you do not always need a license if you want to use wireless spectrum. The FCC has taken several swaths of spectrum and, instead of giving handful of companies exclusive rights, has opened them up to “unlicensed” use. This means that anyone can use certain parts of the wireless spectrum without paying for it, as long as they do not interfere with others who are using it. Think of it as a public park. It’s open to the general public. It’s free of admission. And you can have a picnic lunch there with your significant other--as long as you don’t talk to each other using megaphones. If necessity is the mother of invention, then unlicensed spectrum is its midwife. Unlicensed spectrum has sparked the proliferation of innovations like Wi-Fi routers and Bluetooth. To retain this momentum, we need to free up more spectrum for unlicensed use. Unlicensed users also need access to prime, beachfront portions of spectrum. Doing so would give innovators the tools, for example, to offer Super Wi-Fi that cloaks an entire university and transit system in a single hotspot, accessible to the whole community.[3] To encourage innovations like this, regulators would be wise to make two policies a high priority. First, federal agencies should be given incentives to give up some of their spectrum licenses. The government has licenses to a substantial amount of spectrum, some of which it uses for important purposes like missile defense. But federal agencies should get incentives (carrots and not just sticks) to give back its excess spectrum, which in turn should be repurposed for unlicensed use. Second, the FCC should keep the needs of unlicensed users at the forefront when it rearranges the layout of the wireless spectrum next year. Importantly, this “incentive auction” is already slated to put more unlicensed spectrum in the pipeline, to be used in new and exciting ways.[4] But coordinating how this new spectrum is used will be complicated. The FCC would be wise to listen closely to tech startups and other unlicensed users as it prepares to iron out the technical wrinkles. Of course, it is difficult to predict how much of an impact the freeing up of unlicensed spectrum will have on our daily lives. But, similarly, it was all but impossible to predict the influence that fledgling tech companies like Apple and Google would eventually amass. From garage startups to garage door openers, recent history has taught us that you should put any tool you can into the hands of innovators. You never know what they will think of next.

[1] Consumer Electronics Association, Unlicensed Spectrum and the U.S. Economy: Quantifying the Market Size and Diversity of Unlicensed Devices, CE.org 2-3, http://www.ce.org/CorporateSite/media/gla/CEAUnlicensedSpectrumWhitePaper-FINAL-052814.pdf (last visited Oct. 19, 2014).
[2] Marguerite Reardon, Wireless Spectrum Shortage? What Spectrum Shortage?, CNET (Sept. 27, 2011, 5:40 PM), http://www.cnet.com/news/wireless-spectrum-shortage-what-spectrum-shortage/.
[3] Press Release, West Virginia University, Nation’s First Campus ‘Super Wi-Fi” Network Launches at West Virginia University (July 9, 2013), http://wvutoday.wvu.edu/n/2013/07/09/nation-s-first-campus-super-wi-fi-network-launches-at-west-virginia-university.
[4] Marguerite Reardon, FCC Approves Rules for Spectrum Auction, CNET (May 15, 2014,  3:11 PM), http://www.cnet.com/news/fcc-gets-ball-rolling-on-wireless-incentive-auction-rules/.

Whose Line Is It Anyway? The Movie "Selma," Without Martin Luther King Jr.'s Speeches

Jonathon Nunley, KLJ Staff Editor1

So you want to make a movie portraying the life of arguably the most famous civil rights leader and orator in American history, Dr. Martin Luther King Jr. Where do you start? If your thought was to look to Dr. King’s speeches and find an actor who can deliver them with the same emotion and power as Dr. King, not so fast.During production one of the most acclaimed movies of 2015, Selma, Director Ava DuVernay had to deal with a unique intellectual property issue that many would not think of. Dr. King’s speeches are protected by copyright law and cannot be used without paying a licensing fee to Dr. King’s estate.2 The film is being hailed as one of the best movies of 2015, having been nominated for dozens of awards. Furthermore, it is monumental in the fact that it is one of the first movies to portray Dr. King as a main character.3 Yet Ms. DuVernay cannot use Dr. King’s speeches. Why?Dr. King’s speeches are classified as intellectual property and qualify for copyright protection. Materials that are protected by copyright are defined in 17 U.S.C. § 102.4 Dr. King’s most famous speech, the ‘I Have A Dream Speech,’ is considered a performance by way of legal designation. In turn, the description of that particular speech as being a performance, as well as others, allows copyright protection. When a piece of work receives copyright status, reproduction or usage of the copyrighted material is protected by 17 U.S.C. § 106.5 So in the case of Ms. DuVernay, with her purpose being to reproduce the speeches in a movie, law would prohibit it.6Dr. King’s speeches cannot be reproduced or used by others without paying a licensing fee to Dr. King’s estate. Just ask USA Today, who had to pay $10,000 in attorney’s fees and court costs, plus a $1,700 licensing fee, after they reproduced the ‘I Have A Dream’ speech without permission from Dr. King’s estate.7So why can’t Ms. DuVernay license Dr. King’s speeches from his estate? Because Dr. King’s estate licensed his words to DreamWorks and Warner Brothers in 2009 for a film director Steven Spielberg may one day produce. Presumably the agreement has a clause preventing Dr. King’s estate from licensing his speeches to other production companies.What do you do when you can’t use the very words of the man your movie is intended to honor? Well, as Ms. DuVernay, the director of Selma said, “I just unanchored myself from the words and went not even line-byline, but word for word, to try to really understand what he was trying to say and then just say it in a different way.”8So whose words are they? Well for today, and as long as Dr. King’s speeches are protected by copyright, they remain the words of Dr. King’s estate, for their exclusive use and distribution. So until Dr. King’s estate loosens up their control of Dr. King’s speeches, or there is a mammoth revision to copyright law, don’t expect to hear Dr. King’s speeches in any movies, shows, or writings. That is, until Spielberg eventually makes his movie.

1 Universtiy Of Kentucky College of Law, J.D. expected May 2016.
2 Jordan Zakarin, Making ‘Selma’ Without Mart Luther King, Jr.’s Speeches, Yahoo (Dec. 23, 2014), https://www.yahoo.com/movies/making-selma-without-martin-luther-king-jr-s-105965343587.html.
3 Id.
4 17 U.S.C. § 102.
5 17 U.S.C. § 106.
6 See Id.
7 Jason Linkins, Here’s Why You Don’t See MLK’s ‘I Have A Dream’ Speech All The Time, Huffington Post (Aug. 28, 2013), http://www.huffingtonpost.com/2013/08/28/i-have-a-dream-copyright_n_3829901.html.
8 Id.

The War on Drug Makers: Kentucky's New Angle to Hold Big Pharma Accountable Draws on Successes Against Big Tobacco

Katy Meyer, KLJ Staff Editor

While Kentucky may be nationally renowned for its basketball, bourbon, and horses, it has also achieved infamy on the national stage for its continued struggle with prescription drug abuse and addiction.1 To combat this epidemic, Kentucky legislators and government officials have been forced to take new, and often creative, steps. One example of this is Kentucky’s lawsuit against Purdue Pharma, L.P.2To date, there have been very few successful cases holding drug manufacturers accountable for the effects of their drugs, as most have been dismissed on summary judgment.3 However, Kentucky’s lawyers have taken on a new angle, claiming that the drug manufacturer’s “aggressive and deceptive” marketing techniques violate state law by misleading doctors as to the addictive nature of the drug.4 The claims are based on Medicaid fraud and false advertising, among other things.5While Kentucky’s suit is unique in that it brings a new perspective to the myriad of litigation against drug manufacturing companies, the assertions are not entirely novel. By introducing these claims as a framework to recover against the drug companies, Kentucky actually moves litigation against drug companies forward in a way that emulates the pattern of litigation against tobacco companies in the 1990s. While claims against tobacco companies started out with unsuccessful products liabilities claims in the 1950s, plaintiffs saw success in the 1990s when states began suing the tobacco companies under state consumer protection and antitrust laws and arguing that the companies had caused significant costs for public health systems.6 More than forty states were involved in this litigation, which settled in 1996 and cost the tobacco industry billions of dollars.7If the progression of Kentucky’s claim thus far is any indication, plaintiffs seeking relief from drug companies could see similar success under this model. The state won a hard-fought battle to keep the action in Pike County state court over Purdue’s removal and change of venue motion,8 and the court has ruled to allow the state to use Purdue’s admissions of liability concerning misbranding of the drug from a 2007 case.9Kentucky’s suit could set an important precedent for the future of litigation against drug companies and have far-reaching effects. While this suit alone could cost Purdue Pharma $1 billion, the company is worried about its larger, national impact as well.10 Kentucky’s action against the drugmaker has already caused national waves - Chicago and two counties in California have already filed suits based on similar claims.11  The case is not only being compared to the lines of cases against tobacco companies in the 1990s and early 2000s for its approach – many commentators have noted that if the Kentucky suit is successful, it could trigger a similar line of cases and recovery to the tobacco litigation as well.12

1 Kentucky has an age-adjusted drug-poisoning death rate significantly higher than the national average, and the second-highest drug-poisoning rate of all the states, edged out only by West Virginia, according to a study released by the Center for Disease Control’s National Vital Statistics System. See Margaret Warner, et al., Trends in Drug-poisoning Deaths Involving Opiod Analgesics and Heroin: United States, 1999-2012, 4 fig. 2 (December 2014), available at  http://www.cdc.gov/nchs/data/hestat/drug_poisoning/drug_poisoning_deaths_1999-2012.pdf.
2 See Laura Unger, Lawsuit seeks to make drugmaker pay for OxyContin abuse, USA Today, (December 29, 2014), available at http://www.usatoday.com/story/news/nation/2014/12/29/kentucky-battles-purdue-pharma-in-court-over-oxycontin-abuse/20803459/.
3 Richard C. Ausness, The Role of Litigation in the Fight Against Prescription Drug Abuse, W. Va. L. Rev. 1117, 1122 (2014).
4 Amended Complaint at ¶¶ 2, 10, 42, 81, Kentucky ex rel. Conway v. Purdue Pharma, L.P. (In re OxyContin Antitrust Litig.), 821 F. Supp. 2d 591, 594 (S.D.N.Y. 2011).
5 “Plaintiffs assert claims for: (1) violation of the Kentucky Medicaid Fraud Statute, KRS § 205.8463 and § 446.070; (2) violation of KRS § 15.060, which authorizes Kentucky's Attorney General to institute an action to recover fraudulent monies that have been paid out of the state's treasury; (3) violation of the Kentucky False Advertising Statute, KRS § 517.030 and §446.070; (4) public nuisance; (5) unjust enrichment and restitution; (6) indemnity; (7) negligence; (8) violation of state antitrust law; (9) strict liability; (10) common-law fraud; (11) conspiracy and concert of action; and (12) punitive damages. The Commonwealth seeks damages based on the Medicaid-related expenses it has incurred, as well as other equitable and injunctive relief.” Kentucky ex rel. Conway, supra note iv, at 594.
6 Tobacco Litigation: History and Recent Developments, NOLO.com, http://www.nolo.com/legal-encyclopedia/tobacco-litigation-history-and-development-32202.html]
7 Id.
8 Kentucky ex rel. Conway, supra note iv, at 591; See also Jack Brammer, Kentucky’s lawsuit against Purdue Pharma to remain in Pike, Kentucky.com, http://www.kentucky.com/2013/09/30/2852769/kentuckys-lawsuit-against-oxycontin.html.
9 United States v. Purdue Frederick Co., 495 F. Supp. 2d 569, 570 (W.D. Va. 2007).
10 David Armstrong, Drugmaker Warns that OxyContin Suit Could be ‘Crippling’, Bloomberg (October 20, 2014), http://www.bloomberg.com/news/2014-10-20/purdue-says-kentucky-suit-over-oxycontin-could-be-painful.html.
11 Unger, supra note ii.
12 Armstrong, supra note x.

Employers Beware: OSHA is Once Again Flexing its Enforcement Muscles

Kierston Eastham, KLJ Staff Editor

The Occupational Safety and Health Administration (“OSHA”) is known across the country by employers and employees alike as it currently oversees safety and health standards for over 130 million employees.[1] OSHA was established in 1970 under President Nixon in order to increase workplace safety and reduce employee deaths and injuries, and has reduced the number of workers killed on the job daily from about thirty-eight per day in 1970 to about twelve per day in 2010.[2] These results require extensive enforcement efforts on behalf of the agency, which has been criticized in recent years for its laxity.[3]OSHA’s most recent regulatory agenda, however, has been described as “aggressive,”[4] especially in regards to its current key enforcement provisions. The agency implemented the severe violator enhancement program (SVEP) in 2010, which focuses on employers that “willfully and repeatedly” endanger their employees by not complying with OSHA workplace standards. These violators are subject to mandatory follow-up inspections, as well as inspections of other worksites within the same company.[5] OSHA’s penalties have also increased, with the average penalty per serious violation for 2014 being at its highest point in four years.[6] On September 11, 2014, new reporting standards were announced that require employers covered by the Occupational Safety and Health Act to report all work-related fatalities within eight hours, and all work-related hospitalizations, amputations, or the loss of an eye within twenty-four hours.[7] The new rule will take effect on January 1, 2015, and a web portal is being developed to facilitate ease for employers in fulfilling the requirements.[8] OSHA intends to hold employers more accountable by publicly posting the reported data on its website, essentially aiming to embarrass employers into compliance through what some are calling the “name-and-shame approach.”[9] One could argue that this “name-and-shame approach” will discourage employers from properly reporting in order to prevent negative information about their company being released to the public, which would ultimately frustrate the standard’s core purpose. Alternatively, this approach could be extremely effective in pushing employers to comply with OSHA standards through fear of damage to their public reputation and goodwill. This method will certainly be more budget-friendly for the agency as opposed to imposing a physical presence in the workplace through federal safety and health inspectors,[10] but whether or not this new method of enforcement will be effective remains to be seen. One expert predicts that OSHA will continue to increase inspections, impose higher penalties, and be more reluctant to reduce penalties during settlement conferences.[11] As these enforcement efforts increase, so too will the need for competent representation on behalf of employers. Although these strengthened enforcement efforts will likely lead to increased litigation for attorneys representing those employer-clients found to have violated an OSHA standard, workplaces will undoubtedly be safer for their employees. The balance between workplace safety and employer sovereignty is a delicate one, and will certainly require many more years of fine-tuning.[1] U.S. Gov’t Accountability Office, GAO 13-61, Workplace Safety and Health: Further Steps by OSHA Would Enhance Monitoring of Enforcement and Effectiveness, at 2 (2013).[2] Occupational Safety and Health Administration, U.S. Department of Labor, All About OSHA (2013), available at https://www.osha.gov/Publications/all_about_OSHA.pdf.[3] Stephen Labaton, OSHA Leaves Worker Safety in Hands of Industry, N.Y. Times, April 25, 2007, available athttp://www.nytimes.com/2007/04/25/washington/25osha.html?pagewanted=all&_r=1&.[4] Bradford T. Hammock, Occupational Safety and Health Administration's (OSHA) Regulatory Agency Holds Surprise, The National Law Review (June 17, 2014), http://www.natlawreview.com/article/occupational-safety-and-health-administration-s-osha-regulatory-agency-holds-surpris.[5] Occupational Safety and Health Administration, supra note 2.[6] Tressi L. Cordaro, Occupational Safety & Health Administration (OSHA) Continues to Push Key Enforcement Initiatives, The National Law Review (March 20, 2014), http://www.natlawreview.com/article/occupational-safety-health-administration-osha-continues-to-push-key-enforcement-ini.[7] OSHA Final Rule Requires Reporting of all Work-Related Fatalities, Certain Serious Injuries, OSHA Guide for Health Care Facilities Newsletter (Thompson Information Services), Oct. 2014.[8] Id.[9] Josh Eidelston, OSHA Will Put Workplace Safety Data Online as 'Nudge' to Employers, Bloomberg Business Week, September 18, 2014, available athttp://www.businessweek.com/articles/2014-09-18/osha-will-put-workplace-....[10] Id.[11] Pedro P. Forment, What Can We Expect from OSHA in the Next Four Years? 60 Fed. Law. 14, 14-15 (2013).

Gene Therapy and Patents – Upcoming Issues and Concern

Joseph Guthrie, KLJ Staff Editor

In the 1990’s, gene therapy was viewed as the next major step forward in medical treatment, with the potential to permanently cure a wide variety of genetic disorders.  Despite early successful trials, gene therapy suffered a major setback in 1999 following the death of Jesse Gelsinger, an otherwise healthy 18-year-old suffering from a manageable genetic disorder, during a clinical trial.  Considering the technology potentially unsafe, the FDA suspended many ongoing trials and researchers largely abandoned the field.Fifteen years later, gene therapy is back in a huge way, having been used in human trials to successfully cure HIV, cancer, and various rare genetic disorders.  Since the beginning of 2013, investors have poured nearly $700 million into companies focused on developing gene therapy treatments. Like in the pharmaceutical industry, development and testing of these kinds of treatments involves huge amounts of money, and these companies will eventually seek patents to protect their discoveries.  What remains to be seen is whether these treatments can be patented, and if so, whether these patents will spur innovation or merely stifle it. In its most common form, gene therapy involves the use of viruses to deliver DNA to a patient’s cells, replacing mutated, dysfunctional genes with functional ones.  In order to develop these therapies, researchers need to first identify the genes responsible for the disease, find a suitable virus to deliver a healthy gene, and finally tailor that virus to specifically target the patient’s affected cells. Biotech firms can try to patent these therapies in one of two ways: by patenting the method of delivering the DNA to the patient or by patenting the genes or modified viruses themselves.  Two recent Supreme Court decisions, however, create a great deal of uncertainty about whether either of these approaches will work. In Mayo v. Prometheus, the Court invalidated a wide swath of diagnostic method patents on the ground that they involved “well-understood, routine, conventional activity previously engaged in by researchers in the field” and risked “tying up the use of the underlying natural laws”.   Recognizing the far-reaching effects this decision might have, the Federal Circuit in Classen Immunotherapies v. Biogen IDEC clarified that method claims could overcome this obstacle by including an additional treatment step. These cases matter for gene therapy patents because genetic disorders are not always identical across all patients.  Every treatment will require genetic diagnostics to tailor each therapy to each specific patient.  Thanks to Classen, however, the diagnostic aspect of gene therapy method claims seem to be safe as long as they are coupled with the treatment itself. Patentability of the DNA and viruses themselves presents a more serious problem, however.  In Association for Molecular Pathology v. Myriad Genetics, the Supreme Court upset nearly two decades of patent practice by holding that isolated DNA sequences were unpatentable subject matter.  At the same time, the Court found that cDNA, a mirror image of naturally occurring, edited DNA, was patentable since, unlike isolated DNA, it was created in the laboratory and not simply extracted from a human subject. Myriad has important implications for gene therapy patents because many developing gene therapy treatments require the use of naturally occurring DNA.  While Myriad allows patents on cDNA sequences, they are not entirely useful in gene therapy since they are copies of an edited form of DNA found outside the cell nucleus.  For gene therapy to work, it needs to use natural, unedited DNA sequences to overwrite the faulty sequences in the patients’ chromosomes.  Only claims covering the lab-created, genetically engineered viruses are likely to survive post-Myriad. In the end, the gene therapy industry might benefit from limiting the scope of these patents, but this level of uncertainty about it isn’t going to help.

What is a “Burden” on Voters? Reflections on Ohio’s Early Voting Litigation

Professor Joshua A. Douglas, Robert G. Lawson, & William H. Fortune Associate Professors of Law, University of Kentucky College of Law

What does it mean for an election regulation to “burden” voters?  Do the relevant burdens relate to how the election system operated previously, or are they more about the particular burdens of the actual law itself outside of the context of what occurred in the last election?  Put differently, is it the text of the law, or the context of the election scheme, that matters the most?  These questions underlie the Sixth Circuit’s recent decision in NAACP v. Husted invalidating Ohio’s new rules on early voting; they will also likely be the focus of the Supreme Court’s impending review.The current controversy over early voting in Ohio continues a trend of involving the courts in dictating how to operate Ohio’s election system.  In 2012, the Obama campaign won an important case when the state tried to remove early voting on the last three days before the election for everyone besides military voters.  The Sixth Circuit ruled that allowing early voting for some voters but not others violated the Equal Protection Clause.

In 2012, Ohio had 35 days of early voting.  This year, the state is trying to cut back early voting to only 28 days.  This subtraction of seven days impacts “Golden Week,” in which voters could both register and vote early on the same day.Last week, the Sixth Circuit affirmed a district court decision that this scheme violates both the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act.  (This post will focus solely on the constitutional analysis.)Key to the court’s decision on equal protection was its invocation of the “Anderson-Burdick” balancing test, named after two important Supreme Court cases, Anderson v. Celebrezze and Burdick v. Takushi.  In election law parlance, if the burdens a law imposes on voters is “severe,” then the law is subject to strict scrutiny review, but if the burdens are less than “severe,” then the court balances

“the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”

In essence, the court makes two threshold assessments:  what is the burden on voters, and what are the state’s interests in enacting the law?  Normally, under current Supreme Court precedent, the plaintiffs have the burden of persuasion on both prongs:  they must demonstrate that the law imposes a particularized burden on certain voters, and they also must disprove the state’s assertion of election integrity as sufficient to justify the law.These two inquiries – and particularly an assessment of the magnitude of the burden on voters – generally determine whether an election regulation is constitutional.  Yet the Supreme Court has never been clear on what kind of burdens are permissible, or even how to assess the burdens on voters, and it normally defers too readily to the state’s interest to achieve “election integrity.”Last week’s Sixth Circuit decision on early voting broke significant ground on both questions.First, the court made a fact- and record-intensive assessment of the burdens on voters.  It found that, because so many African-Americans relied on early voting in 2012, the cutback on early voting opportunities would disproportionately and negatively affect these minority voters.  That is, the law’s “burden” on a subset of voters was “significant” because it would reduce these voters’ opportunity to vote.But this raises important questions about how to assess burdens in the Anderson-Burdick analysis.  Is the proper baseline the opportunities to vote during the previous election?  Or should the baseline instead be a world in which there are no prior voting rules?  Put differently, should the courts focus on the context in which the legislature enacted the law to see if it imposes additional burdens as compared to prior elections, or is the proper focus solely on the text of the law by itself, as if there was no previous law that granted or took away voting opportunities?If prior context matters, then the plaintiffs likely provided enough evidence to show that Ohio’s cutbacks in early voting will cause greater burdens on African-American voters.  But if the question instead is simply whether this particular law, that grants 25 days of early voting, imposes significant burdens, then the answer is likely no; many states allow no early voting, so providing 25 days seems generous.Determining the proper baseline for analyzing the burdens on voters is particularly significant.  Using the prior election as a baseline would fill a hole left by last year’s decision gutting the protections of Section 5 of the Voting Rights Act, which had prevented election law changes that would have a “retrogressive” effect on minority voters.  That is, plaintiffs seeking to preserve robust federal court protection of minority voters’ rights in the wake of the Court’s Shelby County decision argue that “burden” in the constitutional test means “burdens as compared to the last election.”  Filling Section 5’s void presents a persuasive reason for the Court to incorporate the prior “retrogression” regime into the constitutional Anderson-Burdick “burdens” inquiry.Second, on the state interest prong, the Sixth Circuit put Ohio to the test to justify its law, requiring Ohio to actually demonstrate its interests with specificity, as opposed to forcing the plaintiffs to disprove the legitimacy of the state’s assertions.  As I show in a new paper, in recent years the Supreme Court has been too deferential to states in the interest prong of the constitutional analysis, approving any generalized assertion of “election integrity” to justify a voting regulation.  For instance, in the voter identification litigation from 2008 the Court credited Indiana’s argument that it needed its law to prevent voter fraud even though the state had no evidence whatsoever that Indiana elections were infected with in-person impersonation – the only kind of voter fraud an ID law would prevent.  The Court said that the state could justify its voting regulation simply by saying that its goal is “election integrity.”The Sixth Circuit, however, did not let Ohio say “election integrity” without more.  Ohio defended its law based on its concern of rooting out fraud, reducing cost, and achieving uniformity across the state in early voting.  Regarding fraud, the court found that eliminating Golden Week would not prevent any demonstrable fraud in the state’s elections.  Although a state has a legitimate interest in election integrity, “[t]his does not mean . . . that the State can, by merely asserting an interest in preventing voter fraud, establish that that interest outweighs a significant burden on voters.”  For cost, the state did not explain adequately how 35 days of early voting, including Golden Week, would create a significant cost burden, especially when counties successfully provided these opportunities in 2012.  And for uniformity, the court held that Ohio’s assertion was too abstract to outweigh the burden on voters.  In essence, the state was put to the burden of proving the veracity and need for the justifications it asserted.Ultimately, the Supreme Court’s decision on Ohio’s early voting rules will come down to how to analyze the burdens – both the burden on voters and the state’s burden in justifying its law.  There are strong reasons for the Court to use the prior election as a baseline for the burdens on voters, and to require states to justify its election regulations with specificity.  These twin facets of the Sixth Circuit’s opinion will help to amplify a robust understanding of the fundamental right to vote for all citizens.

Sixth Circuit denies death row appeal; points inmate towards clemency

Charles Krebs, KLJ Legal News Editor

Last week, the Sixth Circuit Court of Appeals made a plea to the Governor to consider clemency for a death row inmate after denying his arguments for relief through the courts.The unique aspect of this decision is the plea to the Governor that the court makes at the end of the opinion. The court systematically, in its analysis, denied relief to Gregory Esparza but in closing the court stated that “[t]oday’s decision is not necessarily the end of the road for Esparza. Among other things, he has the right to file a clemency application with the governor to reduce his sentence from death to life in prison. In light of the many uninvited difficulties in his childhood, this application may be worth a serious look.”Esparza murdered a woman, Melanie Gerschultz, while robbing a restaurant in Ohio of $110 in 1983. Esparza was sentenced to death in 1984 even after his lawyers had presented hundreds of pages documenting an incredibly difficult childhood full of beatings, burnings, abandonment, and more. The state appellate court and Supreme Court both affirmed the sentence on appeal and Esparza eventually filed a habeas petition in federal district court in 1996. This succeeded and was affirmed in 2002 by the Sixth Circuit, however it was reversed by the Supreme Court the next year. On remand, the district court rejected Esparza’s remaining arguments and allowed him to appeal that decision. Yesterday’s decision was a rejection of that appeal with the clemency plea offering a glimmer of hope for Esparza.So, what’s next for Esparza? If the recent pattern by current Ohio Governor John Kasich is any indication, clemency on humanitarian grounds is a likely possibility. Since 2011 Gov. Kasich has commuted five death sentences to life in prison without parole - that is the most by any governor in the same time period. All of the sentences that have been commuted have been in accordance with the 11-member Parole Board of Ohio’s recommendation. With a Governor, and parole board, that is willing to commute death sentences to life without parole, it seems that the Sixth Circuit’s recommendation that clemency be “worth a serious look” is a very likely possibility. It will be interesting to watch what happens with Gregory Esparza’s case and whether or not the Sixth Circuit’s plea helps his chances at being granted clemency.

How Many Judges Are There on the Sixth Circuit Bench?

Charles Krebs, KLJ Sixth Circuit Blogger

Today’s blog answers one deceivingly simple question: How many judges are there on the Sixth Circuit Court of Appeals?The answer, equally simple and yet equally deceiving, is 23.Why is that deceiving? Because technically there are only 16 spots on the court. The Sixth Circuit started with just two judgeships in 1891. Two increased to six over the next 50 years (by 1940). The number of judgeships held at six for 25 years but shot to 16 between 1966 and 1990. Sixteen is where it stands today. Fifteen of those 16 spots are currently filled.So why are there 23 judges currently serving on the court if there are only 16 judgeships? Well, that is because of another position on the court known as senior judge.What is a senior judge? Essentially, a senior judge is a judge who decides to retire but continue working. For a judge to assume senior status they must fulfill the “Rule of 80.” That means that their age (once 65) plus their years of service adds to 80. For example, a 65 year old judge who has given 15 years of service can take senior status, or a 70 year old judge with 10 year of service.A “senior status” judge receives the same salary in retirement as the other judges on the court as long as their work for a year is equal to the same amount of work that an active judge would do in three months. If they are not working in retirement enough to qualify for senior status the judge will receive the same salary in retirement as during their last year of active serivce.Once a judge assumes senior status the President is then able to appoint a new judge to fill in the new senior judge’s spot on the bench.In conclusion, there are only 16 spots on the Sixth Circuit bench, but because of the senior judge position there are actually eight more judges working and drawing equal salary as the active judges. This brings the total number of Sixth Circuit judges to 23.If you have any questions or comments about this post or other questions, send them my way and I’ll hopefully be able to research and write something answering your questions.

Uses and Abuses of Eminent Domain in the Commonwealth

Ben Monarch

Last October, energy industry firms began gauging interest within Kentucky for construction of a natural gas liquids (“NGL”) pipeline.FN1  Operating under the name Bluegrass Pipeline (“Pipeline”), the new Pipeline will span thirteen counties, and connect to an existing interstate NGL pipeline in western Kentucky.FN2  The purpose of the Pipeline is to transport approximately 300,000 NGL barrels per day from northern Appalachia to the Gulf Coast.FN3This commentary does not evaluate the numerous environmental, economic, political, and social issues associated with construction of an NGL pipeline.  Rather, this piece focuses on the ongoing effort by the Kentucky General Assembly to amend Kentucky’s eminent domain statute to prohibit its invocation in developing the Pipeline.FN4Pipeline construction requires easements.FN5 Because an easement right is negotiated and transferred privately the involved parties are typically pleased with the outcome.  In effect, easements readily illustrate the value and efficiency of free market transactions.However, the free market is not always availing.  If even one easement is unattainable, then implementation of a project can be stalled or terminated.  A major reason that easements become unattainable is the holdout problem; if numerous easements are needed and if a landowner waits until he/she is the last (or nearly last) landowner to grant an easement, then he/she can demand an above-market price for the right of easement.  This dilemma undermines efficient pricing and can make otherwise economically feasible projects infeasible.  To overcome this problem eminent domain is often exercised.FN6Many easements critical to the Pipeline have been obtained, but the holdout problem is emerging for the remainder.  Pipeline developers cite KRS 278.502 (eminent domain)FN7 as applicable here, and will invoke it as “a last resort.”FN8  Pipeline opponents bristle at this notion.In December an opponent group filed a declaratory judgment action in the Franklin Circuit Court pleading the court to rule the Pipeline ineligible for eminent domain.FN9  As of this writing, the court has not ruled on the motion.Elsewhere in Franklin County, the General Assembly is pursuing an “emergency” maneuver that may render moot any ruling by the court.FN10 The Senate Judiciary Committee is considering and the House Judiciary Committee has approved an amendment to KRS 278.502.FN11  If enacted, the amendment will preclude eminent domain as a means of building the Pipeline.FN12  The amendment is retroactive to last October—leaving little doubt that it targets the Pipeline.FN13Whether this legislative machination is viewed favorably or disfavorably is largely irrelevant; what is relevant, however, is the damaging precedent it establishes.  For Kentucky to attract economic activity it must be a state with reliable laws; not a state known for retroactively changing its statutes whenever the political winds turn.  Eminent domain may not always be the most equitable solution, but its commercial necessity and legal soundness are well established.  The General Assembly would be wise to handle this important constitutional and economic principle with care; otherwise the Commonwealth may pay dearly for such capriciousness.

FN1. Press Release, Williams, Bluegrass Pipeline Announces Open Season (Oct. 24, 2013), available at http://www.businesswire.com/news/home/20131024006381/en/Bluegrass-Pipeline-Announces-Open-Season#.UyEG-BZRgsQ.
FN2. Id.
FN3. Id.
FN4. Eminent domain is the constitutionally sanctioned taking of private property for “public use” in exchange for “fair compensation” to the party losing the property.  There are always legal questions related to whether a specific taking is within the scope of constitutional language.  Regardless of how these issues are resolved it does not undermine the historical significance of eminent domain in developing the modern United States; for example, the U.S. Interstate system would have likely been impossible without it.  See U.S. Const. amend. V, cl. 4.  See also infra notes 6, 9.
FN5. Fact Sheet, Bluegrass Pipeline, Acquiring Easement or Rights of Way, http://bluegrasspipeline.com/wp-content/uploads/2013/08/bluegrass-fact-sheet_acquiring-easements1.pdf, (last visited Mar. 12, 2914) (discussing that an easement grants the right to use another’s real estate for a specific purpose).
FN6. See Richard Posner, Economic Analysis of Law 70-71 (8th ed. 2011).
FN7. Ky. Rev. Stat. Ann. § 278.502 (West 2013) (eminent domain statute).
FN8. Greg Kocher, House Committee Approves Bill that would Keep Bluegrass Pipeline from Invoking Eminent Domain, Kentucky.Com (Feb 26, 2014), http://www.kentucky.com/2014/02/26/3109779/house-committee-approves-bill.html.
FN9. Complaint at 1, Kentuckians United to Restrain Eminent Domain v. Bluegrass Pipeline Co., LLC, No. 13-CI-1402 (Franklin Cir. Dec. 5, 2013).
FN10. H.B. 31, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014); S.B. 21, 2014 Gen. Assembl., Reg. Sess. (Ky. 2014).
FN11. Supra note 7
FN12. Supra note 8.
FN13. Supra note 10.

The Secret Right to Hybrid Representation

Chas Rutledge

I learned something today. Unlike its federal counterpart the Kentucky Constitution entitles defendants to hybrid representation, a limited waiver of counsel in which the defendant acts as co-counsel with a licensed attorney. A recent defendant attempted to exercise this right by filing a motion against the wishes of his attorney. But in the words of the Kentucky Supreme Court the man was “mislead”:

Counsel explained that it was his ethical duty not to file the motions because he believed they were meritless. . . . Later in the hearing, the trial judge reiterated that Appellant's “only other choice,” if he wanted to file a pro se motion, was to represent himself. Appellant then offered the qualified response that “with this hearing” and “with this motion” he would take his chances representing himself. . . . Appellant's counsel interjected, informing the judge that Appellant could represent himself for purposes of this motion only. The judge responded that this was not an option and . . . [the] decision would mean that “you're going to be going all through this case without counsel.”

These false words of course violated the Kentucky Constitution, even if irrelevant rifts between client and counsel also contributed to the client’s decision to proceed pro se. Yet courts are interestingly not required to inform defendants of their right to hybrid representation. We might presume that this results in fewer frivolous motions. But if nobody knows about it then what's the point? Lawyers have an ethical duty to follow their clients’ objectives. True, the lawyer can choose a different strategy than the client desires. But if I have a client who, after counsel, insists on filing a motion, then I’m filing the motion, unless of course it conflicts with other ethical duties—the restrictions on filing frivolous actions, for example. After all, the alternative is ethically informing the client of his right to “hybrid representation” and having him file the motion himself. Either way, the lawyer loses and the client wins. Right?