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.