Kentucky Business Closures Help “Flatten the Curve,” But Are They Constitutional?

Blog Post | 108 KY. L. J. ONLINE | Mar. 26, 2020

Kentucky Business Closures Help “Flatten the Curve,” But Are They Constitutional?

Robert Hudson

 Because COVID-19 spreads rapidly through human contact, governments across the world have prohibited most forms of public gatherings to curb infection rates. In Kentucky, Governor Andy Beshear issued executive orders requiring many businesses to close some or all of their operations. For some of these businesses, complying with Beshear’s orders means complete closure until further notice, which could lead to bankruptcy. Over half of U.S. states have issued similar business closure orders.[i]

Despite their effectiveness in slowing the spread of the virus, some government officials and social media personalities have denounced these measures as unconstitutional exercises of government power.[ii]The U.S. Constitution, however, reserves “police powers” to the states.[iii] “Police powers” include a state’s authority to regulate behavior to protect the health, safety, and general welfare of its inhabitants.[iv] According to the Kentucky Supreme Court, a valid exercise of police power must "bear a real and substantial relationship to the public health, safety, morality or some other phase of the general welfare."[v] Valid exercises of state police power do not constitute takings of property without due process of law.[vi]  

Both the Kentucky Supreme Court and the U.S. Supreme court have held that, through their police powers, states can enact laws to prevent the spread of disease.[vii] During the early-1900s smallpox outbreak, the Kentucky Supreme Court upheld the constitutionality of state laws that closed stores for sanitization and quarantined individuals suspected to have the disease.[viii] In Jacobson v. Commonwealth of Massachusetts, the U.S. Supreme Court held constitutional a state law that implemented mandatory vaccinations.[ix] The Court opined that a state “has the right to protect itself against an epidemic” and its members “may at times, under the pressure of great dangers, be subjected to … restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”[x] The U.S. Supreme Court also upheld the constitutionality of state laws that imposed forced quarantines.[xi] 

Most developed countries have enacted similar business-closure policies to slow the spread of COVID-19 and protect the health of their citizens. Italy was initially reluctant to implement such policies, but the ensuing health emergency forced it to impose a full lockdown.[xii] Governor Beshear’s orders “bear a real and substantial relationship” to the health of Kentuckians. They are very likely constitutional as a valid exercise of state police powers. 

[i] Brakkton Booker, States Are Taking Many Approaches To The Coronavirus. Here's A Look At Each, NPR (Mar. 12, 2020), https://www.npr.org/2020/03/12/815200313/what-governors-are-doing-to-tackle-spreading-coronavirus.

[ii] Elizabeth Joh, Yes, States and Local Governments Can Close Private Businesses and Restrict Your Movement, Politico (Mar. 18, 2020), https://www.politico.com/news/magazine/2020/03/18/states-police-power-coronavirus-135826.

[iii] Joh, supra note 2. 

[iv] Joh, supra note 2.  See also John Malcolm, In Combating Coronavirus, Trump and Governors Act Constitutionally, The Heritage Foundation (Mar. 20, 2020), https://www.heritage.org/the-constitution/commentary/combating-coronavirus-trump-and-governors-act-constitutionally; John Yoo, Pandemic Federalism, National Review (Mar. 20, 2020), https://www.nationalreview.com/2020/03/pandemic-federalism/; Debra Cassens Weiss, Lawsuits over coronavirus quarantines are unlikely to succeed, experts say, American Bar Association (Mar. 18, 2020), https://www.abajournal.com/news/article/suits-over-coronavirus-quarantines-unlikely-to-succeed-experts-say. 

[v] Dep’t For Nat. Res. & Envtl. Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 473 (Ky. 1978).

[vi] Andrew Napolitano, Judge Andrew Napolitano: Coronavirus fear lets government assault our freedom in violation of Constitution, Fox News (Mar. 19, 2020), https://www.foxnews.com/opinion/judge-andrew-napolitano-liberty-coronavirus; New Orleans Pub. Serv. v. City of New Orleans, 281 U.S. 682, 87 (1930) (“ It is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking of property without due process of law”). 

[vii] See, e.g., Allison v. Cash, 137 S.W. 245, 249 (Ky. 1911); Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 39 (1905).

[viii] See, e.g., Allison, 137 S.W. at 249; Jacobson, 197 U.S. at 39. 

[ix] See, e.g., Allison, 137 S.W. at 249; Hengehold v. City of Covington, 57 S.W. 495, 497 (Ky. 1900). 

[x] Jacobson, 197 U.S. at 27-29; David B. Rivkin Jr. & 

Charles Stimson, A Constitutional Guide to Emergency Powers, Wall Street Journal (Mar. 19, 2020), https://www.wsj.com/articles/a-constitutional-guide-to-emergency-powers-11584659429.

[xi] Malcolm, supra note 4. 

[xii] Dave Lawler, Timeline: How Italy's coronavirus crisis became the world's deadliest, Axios (Mar. 24, 2020), https://www.axios.com/italy-coronavirus-timeline-lockdown-deaths-cases-2adb0fc7-6ab5-4b7c-9a55-bc6897494dc6.html.

From 1973 to Today: The Risks of Funding Public Education by the Property Tax

Blog Post | 108 KY. L. J. ONLINE | Mar. 5, 2020

From 1973 to Today: The Risks of Funding Public Education by the Property Tax  

By Morgan King[1]

The property tax has been a source of revenue for governments since the days of feudal England.[2] Following the American Revolution, the new government levied a property tax to be used for the local benefit of those owning property.[3] In modern America, school districts rely on the local property tax to fund public school education.[4] 

The revenue from property is received from the land and improvements to land, which generates a tax “equal to the percentage of taxable value of the property.”[5] It follows that not all property, and further, jurisdictions, are taxed uniformly. A neighborhood with many businesses generates higher property taxes than empty lots in a rural area. Thus, a jurisdiction with lower home values generates less property taxes than any wealthier neighboring jurisdictions. Despite the inequality, schools in these jurisdictions are left to educate students uniformly, yet that education can vary dependent solely upon the resources available.[6]

In 2016, NPR presented a report on the variation of school funding across the United States.[7] The data found that, across the country, students “in the same grade attending schools” are educated “with wildly different resources.”[8] In Kentucky, the data shows variation across the state, with the majority of the state falling at or below the national average of school district spending per student.[9] In Northern Kentucky, for example, the disparity of funding per student compared to its southern county neighbors is particularly disproportionate.[10]

Property taxes affecting education inequality is not a novel idea. In the 1973 Supreme Court case San Antonio Independent School District v. Rodriguez, a group of plaintiffs brought a claim against the constitutionality of funding public schools.[11] The disparity between two school districts in San Antonio was the basis of the complaint, comparing one poor, school district in San Antonio against its more affluent neighboring school district.[12]  Upon the idea that “education is perhaps the most important function of state and local governments” and “must be made available to all on equal terms” that Brown v. Board of Education held,[13] the plaintiffs made their case that using property taxes to fund school districts inherently keeps lower-income communities from attaining the same education as those with school districts funded by higher property values.[14] The Supreme Court held against the plaintiffs. In the opinion, Justice Powell reasoned that because the plaintiffs were not outright denied an education because of their economic status, the government could not intervene under a strict scrutiny standard.[15]

 Therefore, the inequality of school funding remained. In order to alleviate the disparity, some states have instead imposed a limit on the property tax rate for local school districts, making up the difference in revenue with increases in other taxes and providing an oversight role for the state.[16] Michigan, for example, was successful with this reform, one report noting improved levels of academic achievement by this method.[17]

The NPR Report highlighted that education inequality based upon funding is as much as an issue today as it was in 1973. When considering what an equal and rewarding education for every student represents, states should take note at how geographic location and tax plays a role.  

[1] Staff Editor, Ky. L. J., Vol. 108. 

[2] Alana Semuels, The Feudal Origins of America’s Most-Hated Tax, Atlantic (Aug. 24, 2016), https://www.theatlantic.com/business/archive/2016/08/the-feudal-history-of-property-tax-in-america/497099/.

[3] Id.

[4] Cory Turner et al., Why America's Schools Have a Money Problem, NPR (Apr. 18, 2016, 5:00 AM), https://www.npr.org/2016/04/18/474256366/why-americas-schools-have-a-money-problem.  

[5] How do State and Local Property Taxes Work?, Tax Pol’y Center, https://www.taxpolicycenter.org/briefing-book/how-do-state-and-local-property-taxes-work.

[6] Alana Semuels, Good School, Rich School; Bad School, Poor School, Atlantic (Aug. 25, 2016), https://www.theatlantic.com/business/archive/2016/08/property-taxes-and-unequal-schools/497333/.

[7] Turner et al., supra note 4.

[8] Id.

[9] Id.

[10] Id.

[11] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

[12] Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and its Aftermath, 94 Va. L. R. 1963 (2008); see also Turner et al., supranote 4. 

[13] Sutton, supra note 12, at 1963 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).

[14] Rodriguez, 411 U.S. at 1.

[15] Sutton, supra note 12, at 1969.

[16] Frequently Asked Questions on the Property Tax, Nat’l Conf. St. Legis., https://www.ncsl.org/research/education/funding-approaches-the-property-tax-and-public-ed.aspx.

[17] Joydeep Roy, Impact of School Finance Reform on Resource Equalization and Academic Performance: Evidence from Michigan, 6 Educ. Fin. Pol’y 137, 138 (Spring 2011).  

Supreme Court Denies Cert, Allows State Double Taxation on Foreign Income

Blog Post | 108 KY. L. J. ONLINE | Mar. 3, 2020

Supreme Court Denies Cert, Allows State Double Taxation on Foreign Income 

Ellen Hancock[1]

On February 24, 2020 the Supreme Court of the United States denied certiorari on a case concerning Utah’s tax statute which subjects foreign-earned income to double taxation.[2]  The taxpayers in this case were shareholders of Steiner, LLC, a subchapter S corporation, that from 2011-13 generated 2% of its income from activities within Utah and 98% from “interstate and foreign business activities.”[3] Under the Utah tax code, income is taxed at a flat rate no matter the country of origin.[4] To prevent double-taxation, Utah offers its residents a credit for the taxes paid on income tax paid in other state; however, these same credits are not offered for income tax paid on income generated in foreign jurisdictions.[5] At the Utah Supreme Court, the taxpayers argued that the foreign-earned income should be excluded under Utah Code Ann. § 59-10-115(2), which allows equitable adjustments in the Utah tax code to be made on an individualized nature, because taxing this income would subject the Steiners to double taxation.[6] However, the Utah Supreme Court voted 5-0 against the taxpayers.[7] 

This decision surprised many because of the previous U.S. Supreme Court decisions Comptroller v. Wynne and Kraft v. Department of Revenue.[8] In Wynne, the Court looked at a Maryland tax case in which the taxpayers were shareholders of Maxim Healthcare Services, a company that filed tax returns in 39 states through its shareholders.[9]  The taxpayers had included the tax that they had paid for Wynne in other states in calculating their Maryland county taxes, where they were residents, which the Maryland tax court rejected.[10] However, the Court found that the Maryland tax system, which did not allow credits for tax paid in other states, violated the dormant Commerce Clause because it discriminated against interstate commerce.[11]  Likewise, the Supreme Court’s decision in Kraft is even more distinctly in contrast with Steiner. In 1992, the Supreme Court looked at an Iowa tax statute which did not allow a tax credit for foreign-earned income.[12] Significantly, in Kraft the Court even expanded upon their decision stating that foreign income and commerce should be afforded even “greater protection from discrimination than interstate commerce.”[13]

Looking at these decisions it’s hard to see why the Supreme Court would deny certiorari on the Utah Supreme Court’s decision in Steiner, which seems to directly contradict Wynne and Kraft. These cases represent the Supreme Court’s repeated commitment to avoiding double taxation which the Steiner case explicitly authorizes. Likewise, aside from going against the Supreme Court precedent, the decision to double-tax foreign income seems unfair and counter-productive. For example, if businesses are going to be subject to income tax in more than one jurisdiction, it could make international business too expensive to operate and could impair economic growth.[14]  It is also inequitable for any Utah business owners who already pay income tax on their income earned in the state, to have to be subjected to additional tax on their foreign income that has already had taxed pay on it. This not only disincentives any benefits that may come to United States tax payers who may be doing business abroad at a lower income tax rate, but also takes it a step further and penalizes them for bringing more income from foreign countries into the United States. 

Based on the Supreme Court denying certiorari in Steiner, it appears that at least for a while the Supreme Court is going to allow policies that subject foreign income for double taxation. However, in the meantime, it is important to note that for federal income tax, credits already exist for tax paid on foreign income to prevent this type of unfair and illogical treatment.[15]

[1] Staff Editor, Kentucky Law Journal, Volume 108; J.D. Candidate, The University of Kentucky J. David Rosenberg College of Law; B.A., Miami University of Ohio (2017).

[2] Steiner v. Utah State Tax Commission, SCOTUS Blog (Feb. 24, 2020), https://www.scotusblog.com/case-files/cases/steiner-v-utah-state-tax-commission/. 

[3] Court: Utah Tax Structure Treatment Violates Foreign Commerce Clause, Grant Thorton (Jan. 10, 2020) [hereinafter Grant Thorton],https://www.grantthornton.com/library/alerts/tax/2019/SALT/U-Z/UT-tax-structure-violates-foreign-commerce-clause-01-09.aspx#foot-note. 

[4] Id.

[5] Id.

[6] Bruce P. Ely & Steven N. Wlodychak, Utah Court Refuses to Extend Protections of Foreign Commerce Clause to Individuals, Bradley (Sept. 17, 2019), https://www.bradley.com/insights/publications/2019/09/utah-court-refuses-to-extend-protections-of-foreign-commerce-clause-to-individuals.

[7] Id. 

[8] Grant Thorton, supra note 3.

[9] Comptroller of the Treasury of Maryland v. Wynne, 135 S. Ct. 1787 (2015). 

[10] Id. 

[11] Id.

[12] Kraft Gen. Foods v. Iowa Dep’t of Revenue & Fin., 505 U.S. 71 (1992). 

[13] Ely & Wlodychak, supra note 6.

[14] Julia Kagan, Double Taxation, Investopedia (Aug. 20, 2019), https://www.investopedia.com/terms/d/double_taxation.asp.

[15] Foreign Tax Credit, IRS (Dec. 20, 2019), https://www.irs.gov/individuals/international-taxpayers/foreign-tax-credit. 

The Legalities of Leap Day: A Survey of Modern and Historical Jurisprudence

Blog Post | 108 KY. L. J. ONLINE | Feb. 25, 2020

The Legalities of Leap Day: A Survey of Modern and Historical Jurisprudence

Sean Meloney

Of the cartoonish realities we unquestioningly encounter in this world, the existence of a Leap Day is among the most delightfully absurd. Since 1852, astronomers have recognized that the Earth’s revolution around the sun requires 365 days plus an additional six hours.[1] Thus, in order to correct the calendar, every fourth year, an additional day is tacked on to the end of February as a leap day.[2] Although many have contemplated the effects that having a Leap Day birthday might have on one’s life and psyche[3], there exist a myriad of logistical and legal problems associated with this extra day as well.[4] In particular, the legal field frequently encounters complications caused by leap days in the calculation of statutes of limitation, criminal sentences, and age determination disputes.

In enforcing compliance with the Rules of Civil Procedure, courts generally apply one of two theories to calculating dates.[5] In applying the “calendar method,” some courts have held that years are measured as any consecutive 365-day period, regardless of the beginning and ending date.[6] Under this theory, a leap day acts to “shorten” a statute of limitations. Other courts have instead applied the “anniversary method,” which finds that “the last day for accomplishing an act is the anniversary date of the period’s commencement, which would make any one-year period encompassing a leap day 366 days.”[7] Thus, courts have found that leap days need not affect the calculation of interest rates[8], the time limit required for an appeal[9], or accrual of spousal survivorship benefits.[10]

In the criminal sentencing context, courts treat leap days with less flexibility. Generally, criminal sentencing abides strictly by the “anniversary method,” which finds that a year is a twelve month period commencing on the first day of the sentence and ending on the same day of the same month in the subsequent year.[11] Courts often refer to the language of sentencing being in years, rather than days, to rationalize the inclusion of leap days within the sentence.[12] However, in the case of Habibi v. Holder, the Ninth Circuit held that when a defendant is sentenced to a prison term of one year, the sentence is for 365 days, regardless of whether or not it takes place during a leap year.[13]

In regard to birthdates, although not confined to leap day birthdates, the common law rule was that a person attains majority on the day directly preceding his 21st birthday.[14] This rule did not just apply to reaching majority, but also to the calculation of age for purposes of levying poll taxes.[15] At present, this is the same rule used by the Social Security Administration to calculate the termination of a child’s insurance benefits.[16]

Nationally, little consistency exists among the courts’ treatment of leap days in both civil and criminal contexts. The Supreme Court has not addressed this issue since 1935, when it considered a case in admiralty about a failure to pay timely wages.[17] With over 10,000 babies anticipated to be born in the U.S.[18] and over 1,200 federal suits anticipated to be filed on this year’s leap day[19], the frequency of leap day issues will only grow in complexity and confusion until the Court provides clarity on how exactly we count a leap day.

[1] David Ewing Duncan, Calendar 17–22 (1998).

[2] Id.

[3] See United States v. Clements, 522 F.3d 790, 793 (7th Cir. 2008); Daniel Nester, The Leap-Day Baby’s Paradox, The Atlantic (February 29, 2016), https://www.theatlantic.com/entertainment/archive/2016/02/the-leaplings-birthday-paradox/470361/; Meg Bryant, ‘Leap Year Babies’ Still Face Medical Records Challenges, Health Care Dive (February 29, 2016), https://www.healthcaredive.com/news/leap-year-babies-still-face-medical-records-challenges/414660/; Lizzie Hedrick, Happy Leap Day: The Fun and Folly of Having a Birthday Every Four Years, USC News (February 29, 2016), https://news.usc.edu/92431/happy-leap-day-the-fun-and-folly-of-having-a-birthday-every-four-years/.

[4] Michelle McQuigge, The Hassles of Being a Leap Year Baby, Global News (February 25, 2016), https://globalnews.ca/news/2539442/the-hassles-of-being-a-leap-year-baby/.

[5] Fields v. Expedited Logistics Sols. LLC, No. 5:16-cv-00728-JMC, 2016 U.S. Dist. LEXIS 170606, at *8–9 (D.S.C. Dec. 9, 2016).

[6] Id.

[7] Id.

[8] In re Oil Spill by Amoco Cadiz off the Coast of Fr. on Mar. 16, 1978 v. Amoco Transp. Co., 4 F.3d 997 (Table) (7th Cir. 1993).

[9] Rice v. Blair, 166 S.W. 180 (Ky. 1914).

[10] Albertson v. Apfel, 247 F.3d 448, 449 (2nd Cir. 2001).

[11] Yokley v. Belaski, 982 F.2d 423, 424­–25 (10th Cir. 1992).

[12] Commonwealth v. Melo, 843 N.E.2d 659, 661 (Mass. App. Ct. 2006).

[13] Habibi v. Holder, 673 F.3d 1082, 1088 (9th Cir. 2010).

[14] United States v. Wright, 197 F. 297, 298 (8th Cir. 1912); Thomas v. Couch, 156 S.E. 206 (Ga. 1930); Nelson v. Sandkamp, 34 N.W.2d 640, 642 (Minn. 1948).

[15] Frost v. State, 45 So. 203, 204 (Ala. 1907).

[16] 20 C.F.R. § 404.2(c)(4) (2018); SSR 63-15, 1960–1974 Soc. Sec. Rep. Serv. 128.

[17] McCrea v. United States, 294 U.S. 382 (1935).

[18] Joyce Martin et al., Births: Final Data for 2018, 68 National Vital Statistics Reports 1 (November 27, 2019), https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_13-508.pdf.

[19] Federal Judicial Caseload Statistics 2018, https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2018 (last visited Feb. 25, 2020).

Chapter 11 Bankruptcy: The Get Out of Jail Free Card for Big Pharma That May Not Work

Blog Post | 108 KY. L. J. ONLINE | Feb. 20, 2020

Chapter 11 Bankruptcy: The Get Out of Jail Free Card for Big Pharma That May Not Work

Scarlett Sloane, Staff Editor[1]

Purdue Pharma LP, a privately held pharmaceutical company that has generated over $35 billion in revenue since it launched in 1996, filed for Chapter 11 bankruptcy in September 2019 in an effort to relieve the company, its subsidiaries, and the Purdue family from the wrath of over 2,600 lawsuits.[2] The company’s filing was preceded by its choice to enter into settlement regarding its “alleged role” in the current opioid crisis across the United States of America.[3] Purdue Pharma is charged with contributing to the massive crisis in the U.S. by allocating “inappropriately high volumes of opioid painkillers in the market, and failing to block suspicious transactions.”[4]The settlement is aimed at settling litigation with over “2,000 local governments”, “24 state attorney generals, and two other major drug wholesalers.”[5]

Chapter 11, created within the Bankruptcy Reform Act of 1978[6], was implemented in order to allow a business, following a claim of bankruptcy, to restructure and “continue to operate, provide its employees with jobs, pay its creditors, and produce a return for its stockholders.”[7] This is in opposition to complete liquidation of the company.[8]This bankruptcy claim will be used to help fund a settlement that could amount to over $12 billion dollars.[9]

 An additional benefit to filing for bankruptcy for Purdue Pharma is the creation of an automatic stay.[10] This automatic stay begins immediately upon filing for bankruptcy and halts any actions by creditors, including “collecting, assessing, or recovering a claim against the debtor.”[11] This aspect of a bankruptcy claim gives Purdue Pharma a chance to organize its funds and create a plan for settlement. It places a great deal of control in the hands of Purdue Pharma. 

Unfortunately, more recently, twenty-one of the states involved in the group litigation rejected the wholesalers’ offer of $18 billion dollars.[12] It is clear that the dissenting states crave a much larger amount of money.[13] Some of the states also demand that the sum be payed to them over a shorter period of time, and not the proposed 18 years.[14] This reaction from the states may prove Purdue Pharma’s bankruptcy actions to be unfruitful.

The fruitfulness of Purdue Pharma’s Chapter 11 bankruptcy claim and its ability to restructure itself following the lawsuit against them seems unlikely due to the states rejection of the preliminary settlement offer. However, by strategically filling under Chapter 11, the company may still have a chance to fully recover. It seems that the states have the power to control Purdue Pharma’s future. 

[1] J.D. Expected May 2021

[2] Jared S. Hopkins, At Purdue Pharma, Business Slumps as Opioid Lawsuits Mount, Wall Street Journal, June 30, 2019, https://www.wsj.com/articles/purdue-pharma-grapples-with-internal-challenges-as-opioid-lawsuits-mount-11561887120; Bobby Allyn, Purdue Pharma, Accused of Fueling Opioid Crisis, Files for Chapter 11, NPR, Sept. 16, 2019, https://www.npr.org/2019/09/16/761107097/purdue-pharma-accused-of-fueling-opioid-crisis-files-for-chapter-11; https://www.nytimes.com/2019/09/15/health/purdue-pharma-bankruptcy-opioids-settlement.html. 

[3] Allyn, supra note 2.  

[4] Phil Taylor, US states reject drug distributors’ opioid settlement, PMLiVE, Feb. 17, 2020, https://www.pmlive.com/pharma_news/us_states_reject_drug_distributors_opioid_settlement_1326130. 

[5]  Allyn, supra note 2.

[6] 92 Stat. at 2549. 

[7] H.R. Rep. No. 595, 95th Cong., 1st Sess. 220 (1978). 

[8] Id. 

[9] Jan Hill, Is Chapter 11 Bankruptcy a Way Out for Lawsuit-Ridden Corporations, Pacer Monitor, Sept. 23, 2019, https://www.pacermonitor.com/articles/2019/09/23/is-chapter-11-bankruptcy-a-way-out-for-lawsuit-ridden-corporations/.

[10] 11 U.S.C. § 362 (2019).  

[11] National Bankruptcy Forum, What Is The Automatic Stay?, Jan. 22, 2018, https://www.natlbankruptcy.com/automatic-stay-explained/. 

[12] Jared S. Hopkins, 21 States Reject $18 Billion Offer From Wholesalers to Settle Opioid Litigation, Wall Street Journal, Feb. 14, 2020, https://www.wsj.com/articles/21-states-reject-18-billion-offer-from-drug-wholesalers-to-settle-opioid-litigation-11581692527?mod=searchresults&page=1&pos=2.

[13] Id. 

[14] Id.

Casting Lumos on Protections for Defendants in the Wizarding World

Blog Post | 108 KY. L. J. ONLINE | Feb. 18, 2020

Casting Lumos on Protections for Defendants in the Wizarding World

Erica Ashton

J.K. Rowling’s Wizarding World is carefully designed to include power structures familiar to us “muggles.” But while readers are regularly exposed to the Ministry of Magic—the Wizarding World’s executive branch—this world’s judicial branch is largely a mystery. The trial described in Harry Potter and the Order of the Phoenix gives a small glimpse into the legal system governing witches and wizards.[i] Applying the U.S. Constitution and Federal Rules of Evidence to this trial shows how drastically insufficient the protections are for magical defendants.

The summer before Harry’s fifth year at Hogwarts, he is charged with “knowingly, deliberately, and in full awareness of the illegality of his actions . . . produc[ing] a Patronus Charm . . . in the presence of a muggle” and summoned to appear before the Wizengamot, a group of fifty wizards that seems to be equivalent to the United States Supreme Court.[ii] The fact that a minor is initially tried by such a group for a relatively trivial offense is only the beginning of this judicial body’s concerning procedures.  

The Wizengamot’s most significant shortcoming is its lack of separation of powers.[iii] If this trial had occurred in an American court, Cornelius Fudge would have served at President of the United States, Chief Justice of the Supreme Court, and U.S. Attorney.[iv] The other two interrogators also hold political roles as Head of the Department of Magical Law Enforcement (analogous to the Attorney General) and the Senior Undersecretary to the Minister (likely a cabinet position).[v]

 Acting as the prosecutor, Fudge admits evidence of Harry’s “prior bad act” of underage use of a Hover Charm[vi] in violation of FRE 609.[vii] First, the warning Harry received for this offense—if a warning is considered an “adjudication” at all—would not be admissible because he was just 12 years old when it was issued.[viii]  Even if this were not the case, it is unlikely the probative value of this warning outweighs its prejudicial effect,[ix] especially given the significant prejudice the Wizengamot displayed against Harry. Further, Fudge’s questioning of Harry is a lesson in leading questions, a violation of FRE 611.[x]

 Now acting as a witness, Fudge attempts to use his opinion of Harry’s character to discredit him.[xi] In the American system, Fudge would not have been permitted to testify at all because judges cannot serve as witnesses.[xii] However, it is clear the Wizengamot has little concern about trial integrity. If Fudge were a proper witness, this testimony would be covered by FRE 608.[xiii] While his general belief that Harry is a liar would be admissible, his attempts to use specific instances of Harry’s conduct that comport with that belief would draw an objection.[xiv]   

 Fortunately, Harry had an effective advocate in Albus Percival Wulfric Brian Dumbledore (who for an unclear reason identified himself as a “witness for the defense”).[xv] The Wizengamot Charter clearly does not provide for appointment of counsel, given the judges’ collective shock at his presence.[xvi] But Dumbledore’s defense strategy of presenting an eyewitness and focusing the judges on the issue at hand saved the boy who lived to live another day.

[i] J.K. Rowling, Harry Potter and the Order of The Phoenix 137-51 (1st ed. 2003) [hereinafter Rowling, Order of the Phoenix].

[ii] Id. at 138, 140.

[iii] See The Federalist No. 47 (James Madison).

[iv] See Rowling, Order of the Phoenix, supra note i, at 138-41 (demonstrating Fudge’s role as Minister of Magic, member of the Wizengamot, and interrogator.)

[v] Id. at 138-39.

[vi] Though of course we know this was the rogue house-elf Dobby’s wrongdoing, not Harry’s. J.K. Rowling, Harry Potter and the Chamber of Secrets 19-20 (1st ed. 2000) [hereinafter Rowling, Chamber of Secrets].

[vii] Fed. R. Evid. 609.

[viii] Rowling, Chamber of Secrets, supra note vi, at 20-21; Fed. R. Evid. 609(d).

[ix] Fed. R. Evid. 609(a)(1)(B).

[x] Fed. R. Evid. 611, see Rowling, Order of the Phoenix, supra note i, at 140.

[xi] Rowling, Order of the Phoenix, supra note i, at 148.

[xii] Fed. R. Evid. 605.

[xiii] Fed. R. Evid. 608.

[xiv] Rowling, Order of the Phoenix, supra note i, at 142, 148. Compare Fed. R. Evid. 608(a) with Fed. R. Evid. 608(b).

[xv] Rowling, Order of the Phoenix, supra note i, at 136.

[xvi] U.S. Const. amend. VI.

Holla, “We Want Prenup!” . . . But Preferably If It Is Before December 31, 2018

Blog Post | 108 KY. L. J. ONLINE | Feb. 13, 2020

Holla, “We Want Prenup!” . . . But Preferably If It Is Before December 31, 2018

 Noah Lewis

Divorce is an increasingly common experience in America—as of 2019, approximately 50 percent of marriages in the United States ended in divorce.[1] As if going through a divorce is not “taxing” enough for an individual, divorced taxpayers preparing to file a 2019 tax return can no longer deduct alimony payments.[2] The 2017 Tax Cuts and Jobs Act eliminated the alimony deduction for all divorce agreements finalized after December 31, 2018.[3] In turn, alimony payments are no longer taxable as gross income to the recipient spouse.[4] Alimony payments that are part of divorce agreements entered into before December 31, 2018, however, continue to remain taxable to the recipient and deductible by the payor.[5]

Due to this elimination, alimony payments are now calculated on an after-tax basis.[6] This result is particularly burdensome to individuals paying alimony because now—since there is no longer an alimony deduction—individuals have less money available to pay spousal maintenance after taxes.[7] In light of this, judges and attorneys have recently begun searching for ways to make alimony payments more equitable for the payor.

The case of Wisseman v. Wisseman is an example of this “equitable” approach. In Wisseman, the New York court considered how much alimony should be awarded given the recent elimination of the federal alimony deduction.[8] The court recognized that, as a result of the new tax law, the husband had less money available to pay spousal support.[9] The court held that strict application to the New York maintenance guidelines was unjust in light of change in the federal tax law.[10] As a result, the court reduced the wife’s maintenance award (mandated by New York statutory guidelines) by the wife’s federal tax rate, saving the husband roughly $61 per month.[11]

Additionally, although alimony payments from prenuptial agreements entered into before December 31, 2018, continue to be deductible to the higher earner and taxable to the recipient, many tax and divorce lawyers have noted that these agreements usually capped alimony payments based on deductibility.[12] Many of these agreements no longer seem just under the current law. Consequently, attorneys believe that pre–2019 prenuptial agreements that capped alimony based on deductibility will lead to more litigation.[13] As one leading divorce lawyer noted, attorneys are waiting on courts “for more guidance” on this issue.[14]

For many Americans, however, one thing is clear: divorce just became even more complicated.

[1] Marriage and Divorce, American Psychological Association, https://www.apa.org/topics/divorce/ (last visited Feb. 18, 2020).

[2] Bob Boyd and Beth Garrett, Insight: How Alimony is Affected by the New Tax Law, Bloomberg Law (Aug. 8, 2019, 9:01 AM), https://www.bloomberglaw.com/product/blaw/document/X9OOKMB4000000?criteria_id=6f7f9395aa56e3c781e5d3d11a805311&searchGuid=959e3837-acf4-4276-9fc9-f1c6d029666c.

[3] See Public Law 115–97––Dec. 22, 2017, https://www.congress.gov/115/plaws/publ97/PLAW-115publ97.pdf (last visited Jan. 2, 2020).

[4] See id.

[5] See id.

[6] Eric A. Tepper, Tax Act’s Impact on Spousal Maintenance, One Year Later, New York Law Journal (Jan. 24, 2020, 01:03 PM), https://www.law.com/newyorklawjournal/2020/01/24/tax-acts-impact-on-spousal-maintenance-one-year-later/.

[7] See id.

[8] See Wisseman v. Wisseman, 63 Misc.3d 819, 820 (Sup. Ct. Dutchess Co. 2019).

[9] See id. at 824.

[10] See id. at 825.

[11] See id.

[12] Lydia O’Neal, Alimony Tax Change Upends Payments in Divorce Negotiations, Bloomberg Law (Aug. 21, 2019, 4:46 AM), https://www.bloomberglaw.com/product/blaw/document/XALOJPD4000000?criteria_id=89137c9b63d6299c88368af0551291cb&searchGuid=73bb771b-d16a-4b65-ad9e-52d21f4529ac&bna_news_filter=daily-tax-report.

[13] See id.

[14] See id.

A Stranger to the Action: Third Party Litigation Financing

Blog Post | 108 KY. L. J. ONLINE | Feb. 6, 2020

A Stranger to the Action: Third Party Litigation Financing

Lili Williams 

Third party litigation financing is “funding, by an outside party, of all or parts of a plaintiff’s litigation costs in exchange for an agreed share of any recovered proceeds.”[1] Essentially, third party litigation financing allows an uninterested party to invest in another’s legal claim by providing funding in order to later receive a portion of the recovery in the event of a successful litigation or settlement.[2] However, if the claim fails and no recovery comes, the funder does not recoup any of his or her “invested” money.[3]

 While some have built third party litigation financing firms that have generated substantial business and return on investment, the practice raises some important concerns. 

Under the common law, the traditional doctrines of “champerty” and “maintenance” made third party litigation financing illegal.[4]  “Maintenance” refers to the funding by an independent third party of another’s case,[5] while “champerty” involves the bargaining of an independent third party to provide funding for another’s case in exchange for a share in the proceeds.[6] The purpose behind the doctrines of champerty and maintenance, both of which still survive in some states, sounds in public policy. First, the doctrines were meant to cut against excess litigation and meritless claims. Regardless of the strength of a legal claim, because many are unable to afford the cost of pursuing litigation, the number of claimants is significantly cut down. Champerty and maintenance, however, make pursuing legal claims more financially possible, which could potentially result in crowded court rooms and an influx of meritless claims. Another public policy concern at common law was the unjustifiable idea that champerty and maintenance would result in financial benefits to uninterested third parties. Damages are designed to recompense plaintiffs for loss or injury and are not meant to operate as a return on investment to a stranger to the cause of action. 

Even though the policy support behind the doctrines at common law is still present today, champerty and maintenance are no longer in force in the majority of states.[7] While the market for third party litigation financing is still relatively new in the United States, it appears to be growing. Two firms that have gained recognition for their funding in the United States market include Juridica Capital Management and Burford Capital Limited, both of which focus primarily on large commercial cases.[8]

One of the founders of Burford Capital Limited, Jonathan Molot, a professor of Law at Georgetown University, stated that the creation of the entity arose from years of grappling with a solution to the expense of litigation rendering court relief inaccessible to many.[9] However, considering that Burford Capital and other similar businesses primarily fund large commercial cases, the goal in furthering equal access to the courts seems little served, while the treatment of the transaction as any other financial investment, meant to line the pockets of the firm’s participants, instead seems to be the reality. 

While there are arguments both in support of and against third party litigation financing, its impact will reveal itself in the upcoming years as its market continues to grow.

[1] Lawrence S. Schaner, Third-Party Litigation Funding in the United States, Revista de Arbitragem e Mediação, Sept. 3, 2012, at 177, https://jenner.com/system/assets/publications/9221/original/RArb32_Lawrence_S._Schaner.pdf?1336643584.  

[2] Id.

[3] Id.

[4] S.J. Brooks, Champerty and Maintenance in the United States, 3 Va. L. Rev. 421, 422 (1916).

[5] A Brief History of Litigation Finance, 5 The Practice 1 (2019). 

[6] Id. 

[7] Champerty and Maintenance, Alliance for Responsible Consumer Legal Funding, http://arclegalfunding.org/champerty-and-maintenance/.

[8] Schaner, supra note 1, at 177. 

[9] Planet Money: Capitalism in the Courtroom, National Public Radio (Oct. 2, 2019). 

Tale of the Tape: the NFL’s Copyright Claim to the Only Known Super Bowl I Recording

Blog Post | 108 KY. L. J. ONLINE | February 4, 2020

Tale of the Tape: the NFL’s Copyright Claim to the Only Known Super Bowl I Recording

Cameron Baskett 

On January 15, 1967, over 62,000 spectators filed into the Los Angeles Memorial Coliseum for Super Bowl I.[1] A further 51 million watched the Green Bay Packers defeat the Kansas City Chiefs on either the CBS and NBC broadcasts.[2] For the good part of half a century, the events of the game existed only in the memories of those who watched it unfold in real time, as both CBS and NBC taped over their respective copies of the broadcast pursuant to the common industry practices of that time.[3] In 2005, Sports Illustrated included the tape of the first Super Bowl in its list of “25 Lost Treasures,” estimating the potential value of such a recording to be upwards of $1 million.[4]

Soon after Sports Illustrated ran the article, Troy Haupt received a phone call from a childhood friend who inquired as to whether he remembered coming across a box labeled ‘Super Bowl I’ while playing in his attic some decades earlier.[5]Haupt had no recollection of any box, but his mother knew exactly what he was referencing.[6] The box—and more importantly the two reels of film inside—had remained in that same Pennsylvania attic all those years.[7] After they were removed and restored, Haupt discovered that his father had used a quadruplex recorder at his place of work to record the entire CBS broadcast of the game, with the exception of halftime and a portion of the third quarter.[8]

After making the discovery, Haupt took the tape to the most obvious buyer: the NFL.[9] However, instead of acquiescing to the $1 million price tag set by Haupt, the league took a different stance: they made him an offer of $30,000, which has since been rescinded, and threatened him with legal action should he attempt to find an alternative buyer.[10] Essentially, while the league concedes that Haupt owns the tape itself, its position is that the contents of the tape are protected by the NFL’s copyright and thus Haupt is prevented from commercially profiting off of its sale.[11]

While the NFL has thwarted any sale of the tape thus far, some scholars have characterized their position as “bluster” and suggested that it would be untenable if tested in court.[12] Others have asserted that “the law stands with the league.”[13]Critics of the NFL’s legal argument cite the first sale doctrine, an exception to the exclusive right of distribution provided by copyright law that permits the owner of any lawfully made copy to sell or otherwise dispose of that particular copy.[14] The applicability of this doctrine hinges on whether the copy made by Haupt’s father would be deemed “lawfully made” within the meaning of the statute.[15] Typically, the exception is applied with regard to legal copies that were purchased, the rationale being that the rightful owner of that particular copy is entitled to do with it whatever he or she pleases.[16] There is little indication that the doctrine would extend to an unauthorized reproduction, such as the one made by Haupt’s father. However, the determination may be further complicated by the fact that Congress did not explicitly extend copyright protections to live broadcasts of sporting events until 1976.[17]

 Although the strength of the NFL’s legal position is unclear, two filmmakers in Utah are determined to test it.[18] The pair plan to produce a documentary on the tape, with the eventual goal of purchasing it from Haupt and releasing it to the public.[19] The two have budgeted $100,000 for potential legal fees to fight off a challenge from the league.[20]

 [1] Christopher Klein, 10 Things You May Not Know About the First Super Bowl, History (Oct. 19, 2018), https://www.history.com/news/10-things-you-may-not-know-about-the-first-super-bowl.

[2] Super Bowl TV Ratings, TV By The Numbers (Jan. 18, 2009), https://tvbythenumbers.zap2it.com/sports/historical-super-bowl-tv-ratings/.

[3] The Journal – The Long-Lost Super Bowl, Wall St. J. & Gimlet Media (Jan. 31, 2020) (downloaded using Apple Podcasts), https://www.wsj.com/podcasts/the-journal/the-long-lost-super-bowl/b89fe62d-de1e-40d8-b1a1-fc862bd1ff7f.

[4] SI’s 25 Lost Treasures, Sports Illustrated (July 11, 2005), https://www.si.com/vault/2005/07/11/8266104/sis-25-lost-treasures.

[5] Richard Sandomir, Out of a Rare Super Bowl I Recording, a Clash With the N.F.L. Unspools, N.Y. Times (Feb. 2, 2016), https://www.nytimes.com/2016/02/03/sports/football/super-bowl-i-recording-broadcast-nfl-troy-haupt.html.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] See id.

[12] Jeff John Roberts, Why the NFL Can’t Control the Only Broadcast of Super Bowl I, Fortune (Feb. 4, 2016) https://fortune.com/2016/02/04/superbowl-copyright/.

[13] Sandomir, supra note 5.

[14] Roberts, supra note 12.

[15] See 17 U.S.C. §109 (2019).

[16] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 550–551 (2013).

[17] Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 845 (2d Cir. 1997).

[18] Julie Jag, Two Utah Filmmakers Want a Recording of Super Bowl I, But Have to Fight the NFL, Salt Lake Tribune (Jan. 18, 2020), https://www.sltrib.com/sports/2020/01/18/two-utah-filmmakers-are/.

[19] The Tape: The Lost Recording of Super Bowl I, Kickstarter, https://www.kickstarter.com/projects/jeremycoon/the-tape-the-lost-recording-of-super-bowl-I (last visited Feb. 4, 2020).

[20] Id.

What is Executive Privilege? Can Trump Invoke it to Block Bolton’s Testimony?

Blog Post | 108 KY. L. J. ONLINE | January 30, 2020

What is Executive Privilege? Can Trump Invoke it to Block Bolton’s Testimony?

Satchell Fowler

Executive privilege is a privilege inferred from the Constitution by the Supreme Court of the United States.[1] The Court acknowledge the privilege after President Nixon invoked it in response to a subpoena by a special prosecutor during a criminal trial following the Watergate scandal.[2] While the United States Constitution has no explicit mention of executive privilege[3]the Court’s ultimate decree was that the President does not have complete unqualified privilege as to subpoena’s issued as a part of a criminal matter, but upon invoking executive privilege creates a presumption of privilege.[4] However, this presumption of privilege can be rebutted by a sufficient showing that the privileged information is essential to the justice of the criminal case.[5]The doctrine of executive privilege, due to its novelty and infrequent usage, has been a frequent subject for analysis and debate among legal scholars.[6]

Although there have been many other notable and highly dramatic events since the beginning of the impeachment proceedings against President Trump, a recent and potentially highly important one is the willingness of John Bolton, the former National Security Advisor, to testify in the Senate trial deliberating Trump’s impeachment.[7] There is rumor now that President Trump may invoke executive privilege in an effort to prevent the testimony.[8]

It is important to point out some important distinctions between the circumstances under which Nixon invoked executive privilege and those in which Trump may do it. First, Nixon was subpoenaed as part of criminal proceeding in Federal Court, and he invoked the executive privilege to attempt to avoid producing the documents requested by the subpoenas.[9] If Trump were to attempt to invoke executive privilege in this case, it would be to prevent a witness from given testimony at President Trump’s impeachment trial.[10] Another important distinction is that in President Nixon’s case, it was to prevent the production of documents that the president clearly did not want to produce,[11] in this case, Bolton has expressed his willingness to testify, and so President Trump’s attorney’s would need to invoke the privilege for someone else who does not have the desire to conceal the information.[12]

Because of the novelty of the situation, and the ambiguity surrounding the exact limits of a president’s executive privilege, we can expect that if the President’s lawyers decide to pursue this strategy, it will pose a difficult and potentially appealable question for the courts. Some legal scholars predict that attempts to use Bolton’s testimony would fail,[13] others seem less sure but express hope that the Senate will choose not to bow to such privilege.[14]

Ultimately, no one can predict exactly what’s going to happen if President Trump’s attorneys decide to invoke executive privilege.[15] It will be a novel question of law, whose result could have far reaching implications about the power of the executive. Of course, the question, and this blogpost, may prove moot, depending on the Senate’s vote on whether to allow witnesses at all.[16]

[1] United States v. Nixon, 418 U.S. 683 (1974) (Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.).

[2] Id. at 687-88.

[3] U.S. Const.

[4] Nixon, 418 U.S. at 713. 

[5] Id. at 713-14. 

[6] See, e.g., Keith Borman, Policing the Executive Privilege, 5 U. Mich. J.L. (1972); Archibald Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383 (1974); Sam Ervin Jr., Controlling “Executive Privilege”, 20 Loy. L. Rev. (1974).

[7] Nicholas Fandos & Michael Schmidt, Bolton Is Willing to Testify in Trump Impeachment Trial, Raising Pressure for Witnesses, N.Y. Times, Jan. 7, 2020, at A1. 

[8] David Savage, Trump’s Attorneys Talking Up Executive Privilege, L.A. Times, Jan. 28, 2020, at A10.

[9] Nixon, 418 U.S. at 687-88.

[10] Savage, supra note 8.

[11] Nixon, 418 U.S. at 687-88.

[12] Fandos & Schmidt, supra note 7.

[13] See, e.g., Harold Hoh, Rosa Hayes, Annie Himes, Dana Khabbaz, Micheal Loughlin & Mark Stevens, Executive Privilege Cannot Block Bolton’s Testimony, Just Security (Jan. 27, 2020), https://www.justsecurity.org/68288/executive-privilege-cannot-block-boltons-testimony/.

[14] See, e.g., Jonathan Shaub, Executive Privilege Is No Reason for the Senate to Ignore John Bolton, LawFare (Jan. 27, 2020 12:45pm), https://www.lawfareblog.com/executive-privilege-no-reason-senate-ignore-john-bolton.

[15] Id.

[16] Bob Fredericks, Steven Nelson & Ebony Bowden, Senate Expected to Block New Witnesses in Friday Impeachment Session, N.Y. Post (Jan. 31, 2020 12:39pm), https://nypost.com/2020/01/31/senate-expected-to-block-new-witnesses-in-friday-impeachment-session/.

A Different Battle Over the Border: Concerns Over New DNA Collection Program

Blog Post | 108 KY. L. J. ONLINE | January 28, 2020

A Different Battle Over the Border: Concerns Over New DNA Collection Program

Kami Griffith 

A new pilot program is in place at United States’ borders that some say could have major privacy implications for immigrants and U.S. citizens.[1] In January, the federal government began collecting DNA samples from some migrants in the custody of the Department of Homeland Security (DHS).[2] Until now, persons detained at the border were only subjected to fingerprinting.[3] The new program authorizes U.S. Customs and Border Protection (CBP) agents to collect DNA from anyone in their custody – including immigrants as well as U.S. citizens.[4] The samples will then be sent to the FBI’s Combined DNA Index System, a database used to compare DNA profiles to forensic evidence found at crime scenes.[5] The Department of Justice (DOJ) says the DNA samples will be “essential to the detection and solution of crimes [aliens] may have committed or may commit in the United States.”[6]

The scope of the federal government’s DNA database has expanded over time.[7] The FBI formally organized the database in 1994.[8] Originally, Congress passed a law that allowed the collection of DNA from citizens arrested for or convicted with federal crimes and non-citizens detained by the U.S. government.[9] However, DHS, and therefore CBP, was exempt from the DNA collection.[10] In 2019, the DOJ proposed revoking the exception, and implemented the pilot program now in place at border checkpoints in Michigan and Texas.[11]

The use of DNA evidence to solve cold cases has been a hot topic in the headlines over the last few years[12] and has led to some fierce debate in the Supreme Court.[13] In 2013, a majority opinion gave law enforcement agents the green light to collect DNA from people who have only been arrested for a crime, Justice Scalia wrote a dissent in which he said that pre-conviction DNA swab tests were unconstitutional.[14] Scalia said the majority’s decision would have grave public policy implications and predicted that in the future “your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”[15]

Some critics of the new policy are leaning on Justice Scalia’s dissent in attacking the pilot program.[16] One writer for the New York Times sees the change as another step in the gradual erosion of privacy by the government.[17] However, DHS says that the DNA samples are only meant to further criminal investigations and address public safety concerns.

Lawmakers in Texas and Michigan have already reached out to DHS, voicing concerns about privacy violations.[18] But DHS says that the pilot program is completely within the department’s legal authority.  

[1] Daniel I. Morales et al., Opinion, DNA Collection at the Border Threatens the Privacy of All Americans, N.Y. Times (Jan. 23 2020), https://www.nytimes.com/2020/01/23/opinion/dna-collection-border-privacy.html. 

[2] U.S. Dep’t of Homeland Sec., Privacy Impact Assessment for the CBP and ICE DNA Collection (2020), https://www.dhs.gov/sites/default/files/publications/privacy-pia-dhs080-detaineedna-january2020.pdf.

[3] Id. at 4.

[4] Id.

[5] Id. at 2.

[6] Id.

[7] Natalie Ram, Fortuity and Forensic Familial Identification, 63 Stan. L. Rev. 751, 760 (2011).

[8] Combined DNA Index System (CODIS), https://www.fbi.gov/services/laboratory/biometric-analysis/codis.

[9] 34 U.S.C. § 40702.

[10] Privacy Impact Assessment for the CBP and ICE DNA Collection, supra note 2.

[11] Geneva Sands, Trump Administration to Collect DNA Data From Some Migrants in Custody, CNN (Jan. 6, 2020) https://www.cnn.com/2020/01/06/politics/dna-samples-migrants-trump-administration/index.html.

[12] Christine Hauser, DNA is Solving Dozens of Cold Cases. Sometimes It’s Too Late for Justice, N.Y. Times (Apr. 1, 2019), https://www.nytimes.com/2019/04/01/us/montana-bernhardt-reich-murder.html?searchResultPosition=4.

[13] Maryland v. King, 569 U.S. 435, 435 (2013).

[14] Id. at 469-70.

[15] Id. at 481.

[16] Morales, supra note 1. 

[17] Morales, supra note 1. 

[18] Julian Resendiz, Stop Taking DNA Samples From Detained Migrants, Lawmakers Tell DHS, WRBL.COM (Jan. 21, 2020), https://www.wrbl.com/news/lawmakers-stop-taking-dna-samples-from-detained-migrants/.

Federal Judge Reverses Course on LIBERTAD Act Claim

Blog Post | 108 KY. L. J. ONLINE | Jan. 23, 2020

Federal Judge Reverses Course on LIBERTAD Act Claim 

Aaron Johnson

On January 7, 2019, Judge Beth Bloom granted MSC Cruises SA CO’s (“MSC”) motion to dismiss the case of Havana Docks Corporation v. MSC Cruises SA Co (the “MSC case”). This case was one of the first filed under the Cuban Liberty and Solidarity (“LIBERTAD”) Act, and its dismissal is surprising because the legal conclusion reverses course on a point of law previously decided by Judge Bloom in the case of Havana Docks Corporation v. Carnival Cruise Lines (the “Carnival case”).

Title III of the LIBERTAD Act creates a private cause of action against a party that “‘traffics’ in” property nationalized by the Castro regime.[1] However, until May 2, 2019, the right to bring an action under Title III was repeatedly suspended in six-month intervals by “successive Presidents and Secretaries of State.”[2] With the suspension lifted, Havana Docks Corporation (“HDC”), a Delaware corporation, filed multiple actions with the same allegation: when US travel restrictions to Cuba were eased, multiple cruise lines trafficked in HDC’s property by disembarking passengers at port facilities in Havana.[3] HDC based its suits on a certified claim issued to Havana Docks Corporation by the Foreign Claims Settlement Commission in 1971.[4] At the time the claim was authorized, the nationalized property included a concession for HDC to operate three piers at the entrance of the harbor of Havana, and the concession was valued at approximately $9 Million.[5]

Judge Bloom’s reversal from the Carnival Case to the MSC Case was based on the rights conferred to HDC by the Cuban government in the terms of the concession.[6] Carnival Cruise Lines filed a motion to dismiss arguing that HDC had no interest in the subject property because the concession certified by HDC was to expire in 2004 and the alleged trafficking did not commence until 2016.[7] This argument was rejected because “the plain language of the Libertad Act states that ‘any person… that traffics in property which was confiscated by the Cuban Government… shall be liable to any United States national who owns the claim to such property.’”[8] Because of the plain language, “the Defendant incorrectly conflate[d] a claim to a property and a property interest.”[9] However, in MSC, Judge Bloom shifted the emphasis of her interpretation of the statute from “who owns the claim to such property” to “who owns the claim to such property.”[10] By doing so, she concluded that the property owned by HDC was a “time-limited” leasehold interest, and it would only have been possible for the defendant to traffic in such property during the period of the leasehold.[11]

The reinterpretation of the rights of a certified claimant in the MSC case demonstrates the complex issues created by the intersection of property, federal statutory, and international laws that Libertad Act claims are likely to present. In conjunction with these legal questions, however, should be fundamental questions of fairness, such as whether the Libertad Act, clearly intended to deter profiting from the nationalization of property without compensation, should provide no recourse when an unlawful taking still has not been corrected after 60 years. 

[1] 22 U.S.C § 6023 (LexisNexis).

[2] Cuba: Title III FAQs (LIBERTAD), U.S. Department of State, https://www.state.gov/cuba-title-iii-faqs-libertad (last visited Jan. 23, 2020).

[3] Complaint at 3–4, Havana Docks Corp. v. Carnival Corp., No. 1:19-CV-21724 (S.D.Fl. May 2, 2019); Complaint at 3–4, Havana Docks Corp. v. MSC Cruises SA Co, No. 1:19-CV-23588 (S.D. Fl. Aug. 27, 2019); Complaint at 3-4, Havana Docks Corp. v. Norwegian Cruise Lines Holdings, Ltd., No. 1:19-CV-23591 (S.D. Fl. Aug. 27, 2019); Complaint at 3-4, Havana Docks Corp. v. Royal Caribbean Cruises, LTD., No. 1:19-CV-23590 (S.D. Fl. Aug. 27, 2019).

[4] Id.

[5] In the Matter of Havana Docks Corporation, Claim No. CU-2492, Decision No. CU-6165, Foreign Claim Settlement Comm’n (Sep. 28, 1971), https://www.justice.gov/fcsc/cuba/documents/1501-3000/2492.pdf.

[6] Havana Docks Corp. v. Carnival Corp., No. 1:19-CV-21724 (S.D. Fl. Aug. 28, 2019) (order denying motion to dismiss); Havana Docks Corp. v. MSC Cruises SA Co, No. No. 1:19-CV-23588, slip op. at 3 (S.D. Fl. Jan. 6, 2020).

[7] Carnival, No. 1:19-CV-21724 (order denying motion to dismiss).

[8] Id.

[9] Id.

[10] MSC, slip op. at 3. 

[11] Id.

Sanctity in the Sanctuaries (?): Legal Implications of “Second Amendment Sanctuary” Resolutions in Kentucky

Blog Post | 108 KY. L. J. ONLINE | Jan. 21, 2020

Sanctity in the Sanctuaries (?): Legal Implications of “Second Amendment Sanctuary” Resolutions in Kentucky

Austin Sprinkles

 In the waning days of 2019 and the beginning of 2020, local governments across the Commonwealth of Kentucky began to pass resolutions calling themselves “Second Amendment Sanctuaries.”[1] These resolutions are in opposition to federal and state gun control legislation and are part of a larger nationwide movement.[2] In Kentucky, the movement is largely in response to the potential of a “Red Flag” law being proposed in the 2020 General Assembly.[3]

“Red Flag” laws, also known as Extreme Risk Protection Orders (“ERPO”), allow law enforcement officers (and family or household members in some states) to ask for a court order to temporarily remove an individual’s access to guns when they exhibit dangerous behavior or “red flags”.[4] Connecticut was the first state to enact such a law in 1999,[5]with 17 states having them as of January 2020.[6] These laws are often enacted in response to mass shootings, with the number having doubled since the mass school shooting in Parkland, Florida in 2018.[7] So far, these laws have survived Second Amendment challenges, however the laws passed since 2018 have been broader than initial “Red Flag” laws passed in Connecticut and Indiana. [8] The Kentucky General Assembly has yet to vote on a “Red Flag” law.[9] However in a November 2019 meeting of the Kentucky Interim Joint Judiciary Committee, State Sens. Paul Hornback, ( R-Shelbyville) and Morgan McGarvey, (D-Louisville) testified about such a bill, stating that they were close to finalizing a draft of the bill and filing it for the General Assembly session beginning in January, 2020.[10]

Across the nation, more than 400 municipalities have passed resolutions opposed to the enforcement of federal and state gun laws.[11] In some areas sheriffs and law enforcement officials have stated they will not enforce gun control statutes.[12] Many of these municipalities have declared themselves “Second Amendment sanctuaries”, borrowing the terminology from the recent “Sanctuary City” movement.[13] In addition to “Red Flag” laws, common targets of these resolutions include universal gun background checks and assault-style weapons bans.[14] The language used in Second Amendment sanctuary resolutions can vary, with some municipalities offering a general declaration in support of the Second Amendment and others stating specifically how they will withhold support for gun laws.[15]   

In Kentucky, the potential enactment of a “Red Flag” law has led to many counties adopting Second Amendment sanctuary resolutions.[16] As of January 8th, 2020, at least 14 counties have declared themselves Second Amendment Sanctuaries.[17] As of January 5th, 115 out of Kentucky’s 120 counties have enacted or are considering these resolutions.[18] At least one county, Marshall County, has proposed an ordinance prohibiting any “agent, department, employee, or official of Marshall County” from “[k]nowingly and willingly, participate in any way in the enforcement of any Unlawful Act . . . regarding personal firearms, firearm accessories, or ammunition.”[19]

Most of “Second Amendment Sanctuary” counties have enacted resolutions rather than ordinances. Under Kentucky state law, an ordinance is “an official action of a city legislative body, which is a regulation of a general and permanent nature and enforceable as a local law or is an appropriation of money.’”[20] While a resolution is “not statutorily defined but is distinguished from an ordinance as being “an act of a special or temporary character not prescribing a permanent rule of government, but merely declaratory of the will or opinion of a municipal corporation.”[21] Thus resolutions do not carry the full force of the law.[22] Additionally, section 65.870 of the Kentucky Revises Statutes states that “[n]o existing or future city, county, urban-county government, charter county, consolidated local government, unified local government, special district, local or regional public or quasi-public agency, board, commission, department, public corporation, or any person acting under the authority of any of these organizations may occupy any part of the field of regulation of the manufacture, sale, purchase, taxation, transfer, ownership, possession, carrying, storage, or transportation of firearms, ammunition, components of firearms, components of ammunition, firearms accessories, or combination thereof.”[23]

 If Kentucky were to pass a “Red Flag” law or any other type of gun control legislation, it is not likely that these “Second Amendment Sanctuary” resolutions would have any legal effect.[24] If Marshall County or any other jurisdiction within Kentucky were to pass an ordinance with the force of law, it would likely be in violation of  § 65.870.[25]Although there may not be much legal impact, there is surely to be political impact as the Kentucky General Assembly addresses and debates these issues in the 2020 legislative session.[26]

[1] Deni Camper, Gun Rights Advocates Push to Create '2nd Amendment Sanctuary Counties' in KY, WLKY (Jan. 7, 2020), https://www.wlky.com/article/gun-rights-advocates-push-to-create-2nd-amendment-sanctuary-counties-in-ky/30421467#.

[2] Id. 

[3] Id. 

[4] Tara Sklar, Elderly Gun Ownership and the Wave of State Red Flag Laws: An Unintended Consequence That Could Help Many, 27 Elder L.J. 35, 37 (2019).

[5] Grace Segers, What are "Red Flag" Laws, and Which States Have Implemented Them?, CBS News, (Aug. 9, 2019), https://www.cbsnews.com/news/what-are-red-flag-laws-and-which-states-have-implemented-them/.

[6] Sean Campbell & Alex Yablon, Red Flag Laws: Where the Bills Stand in Each State, Trace, (last updated Jan. 17, 2020, 4:05 PM),  https://www.thetrace.org/2018/03/red-flag-laws-pending-bills-tracker-nra/.

[7] Segers, supra, note 5. 

[8] Sklar, supra, note 4, at 39–40.  

[9] Joe Sonka, Kentucky Advocates Pitch ‘Red Flag’ Law to Remove Guns from Those Deemed a Threat, Louisville Courier Journal (Nov. 22, 2019), https://www.courier-journal.com/story/news/politics/ky-legislature/2019/11/22/proposed-red-flag-law-would-take-guns-kentuckians-deemed-threat/4269447002/.

[10] Id. 

[11] Jennifer Mascia, Second Amendment Sanctuaries, Explained, The Trace (Jan. 14, 2020), https://www.thetrace.org/2020/01/second-amendment-sanctuary-movement/.

[12] Id. 

[13] Id. 

[14] Id. 

[15] Id. 

[16] Will Wright, A Second Amendment Sanctuary Movement is Sweeping Through Kentucky. Here’s Why., Lexington Herald-Leader, (Jan. 3, 2020, 3:21 PM),  https://www.kentucky.com/news/state/kentucky/article238908618.html.

[17] Associated Press, ‘This Map Will Evolve Quickly’: Kentucky Counties Pass Resolutions Supporting Gun Rights, Louisville Courier Journal, (Jan. 7, 2020 12:31 PM), https://www.courier-journal.com/story/news/local/2020/01/07/kentucky-counties-passed-resolutions-declaring-local-governments-second-amendment-sanctuaries/2832055001/.

[18] Kentucky Second Amendment Sanctuary Counties Sweep Across the State, Gun Rights Watch, (Dec. 22, 2019 6:30 PM),https://gunrightswatch.com/news/2019/12/22/kentucky/kentucky-becomes-a-sea-of-orange-as-second-amendment-sanctuary-county-efforts-progress/.

[19] Marshall County, Ky. Proposed Ordinance 2019-15 (proposed Dec. 17, 2019); see also Dalton York, Marshall County Working to Have Kentucky’s First ‘Sanctuary County’ Ordinance for Guns, WKMS, (Dec. 17, 2019), https://www.wkms.org/post/marshall-county-working-have-kentucky-s-first-sanctuary-county-ordinance-guns - stream/0.

[20] Legislative Research Comm’n, Kentucky Municipal Statutory Law, Informational Bulletin No. 145, at 36 (quoting Ky. Rev. Stat. Ann. § 83A.010 (West 1992).)

[21] Id. at 36 (quoting 62 Corpus Juris Secundum. Sec. 411, Municipal Corporations. New York: The Amer. Law Book Co., 1949.).

[22] Wright, supra note 16.

[23] Ky. Rev. Stat. Ann. § 65.870 (West 2012).

[24] Wright, supra note 16.

[25] § 65.870.

[26] Wright, supra note 16.

The Dark Side of “Going Viral”: Can You Still Sue for Defamation

Blog Post | 108 KY. L. J. ONLINE | Jan. 16, 2020

The Dark Side of “Going Viral”: Can You Still Sue for Defamation?

Hannah Oates

The digital age, with the rise of the 15 minutes of fame concept, has complicated defamation law by making it more difficult to ascertain who qualifies as a public figure.[1] Consider Nick Sandmann. The junior at a Kentucky Catholic high school joined the long list of viral fame victims in January of 2019 after multiple large media outlets misconstrued a set of events that occurred in Washington D.C. painting the student as the instigator.[2]  Following the incident, Sandmann filed a defamation suit against CNN, NBC, and the Washington Post.[3] One commentator questions whether Sandmann could be considered a public figure.[4] What would this mean for the lawsuit? It would make it more difficult for Sandmann to succeed against the defendants. 

In a defamation suit, the plaintiff is typically required to prove fault of some sort, normally negligence. However, when the plaintiff is a public figure, the plaintiff must prove that the defendant acted with actual malice, a more difficult standard for the plaintiff to meet.[5]  The court has identified two types of public figures: all-purpose[6] and limited-purpose.[7] Are persons who experience their 15 minutes of fame – persons like Sandmann, subjects of popular memes, and social media “stars” – limited-purpose public figures, therefore, making it harder for them to prove their case in court? 

Part of the confusion in classifying public figures lies in the court split regarding whether one must voluntarily thrust oneself into the controversy. An Idaho court said that “public figure status does not hinge upon an individual’s preference in the matter . . . the Times privilege is not precluded because an individual does not voluntarily pursue public action.”[8]However, the Supreme Court a year prior held that voluntariness plays an important role in deciding whether one is a public figure. In that case, the Court held that a woman who married into a rich, high-profile family was not a public figure during the divorce proceedings.[9] Social media adds an interesting twist because while a person might voluntarily upload a video to Instagram or YouTube, most of the time they are not voluntarily seeking millions of views or likes. Consider a high school student who creates a silly TikTok clip with her friends after school. Chance makes the clip go viral, racking up millions of views. If the clip receives negative comments, should this high schooler be effectively insulated from receiving reprieve because she is deemed a public figure? 

The rationale behind the different standard for public figures further muddles the confusion in the digital age. Part of the reason for the different standard is that public figures have “greater access to the channels of effective communication” so they have “a more realistic opportunity to counteract false statements.”[10] Today, due to social media and the internet, private figures can have similar access to “channels of effective communication” in order to refute defamatory statements. The shift begs the question of whether the different treatment of public and private figures is necessary or effective anymore. 

 One scholar, noting the complications of voluntariness and the inapplicability of the rationale for the different standards, is advocating for a change in defamation public figure law that would elevate the obstacles faced in the digital age.[11]She suggests that the court should first ask “whether the disputed speech relates to an issue of general or public interest before compelling the disclosure of the identity of an alleged defamer.”[12] While this approach would help protect the innocent party of a viral video who had no intention of receiving such acclaim, like the example of the high school TikTok “star,” it likely would not protect Sandmann due to the political nature of the issue that occurred during the protests in the nation’s capital. 

Some defamation plaintiffs might find relief if their newfound fame is due to the media. While there are many ways that one can become a limited-purpose public figure, especially in the digital age where it seems the most unique behavior receives the most likes, one cannot become a public figure because of the media’s behavior. “When a sensational story by one news organization is picked up by many, the snowballing of media attention may transform an unknown individual into a virtual celebrity almost overnight. The possibility therefore exists that by relying on this snowballing of attention a media defendant might be able to bootstrap itself into first amendment protection. Such a sequence of events might concededly defeat public figure status in an appropriate case.” [13] If this exception was not in place, media outlets could take advantage of the public figure rule by continuing to post defamatory stories transforming the plaintiff into a public figure and, therefore, diminishing the plaintiff’s chances of success because actual malice must now be proven. Thus, even if plaintiffs, like Sandmann, are found to be limited-purpose public figures, their status as such might be declared null if the reason for their new fame is actually the entity defaming them.  

Like most areas of the law concerning the digital age, confusion exists. Even the clear defamation rules seem to make little practical sense due to the changing environment. As more cases like Sandmann’s cycle through the court system, perhaps the rules will become more clarified and applicable to the modern age. 

[1] L.V. Anderson, Can You Libel Someone on Twitter?, Slate (Nov. 26, 2012), https://slate.com/technology/2012/11/libel-on-twitter-you-can-be-sued-for-libel-for-what-you-write-on-facebook-and-other-social-media.html (“With the advent of Twitter celebrities and people with thousands of Facebook friends, the line between public and private figures—and therefore whether “actual malice” or negligence applies to a case—becomes increasingly blurry.”).

[2] Bill Chappell, Covington Catholic Teen Nick Sandmann Sues 'Washington Post' For $250 Million, National Public Radio (Feb. 20, 2019), https://www.npr.org/2019/02/20/696245435/covington-catholic-teen-nick-sandmann-sues-washington-post-for-250-million.

[3] Cameron Knight, CNN confirms a settlement has been reached with Covington Catholic student Nick Sandmann, USA Today (Jan. 7, 2020), https://www.usatoday.com/story/news/nation/2020/01/07/nick-sandmann-cnn-confirms-settlement-covington-catholic-student/2837478001/ (In February of 2020, Sandmann and CNN settled the defamation case for an undisclosed amount. It appears the suit remains ongoing against the other defendants).  

[4]  Max Londberg, Nick Sandmann of CovCath may face challenges in proving defamation, experts say, Cincinnati Enquirer (Feb. 11, 2019), https://www.cincinnati.com/story/news/2019/02/11/nick-sandmann-covcath-lacks-obvious-defamation-claim-experts-say/2757343002/.

[5] Gertz v. Robert Welch, 418 U.S. 323, 352 (1974).

[6] Id. (“Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life”).

[7] Id. at 351 (“More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.”). 

[8] Bandelin v. Pietsch, 563 P.2d 395, 398 (1977). 

[9] Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976) (“Nor did respondent freely choose to publicize issues as to the propriety of her married life. She was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony.”).

[10] Gertz, supra note 5, at 344.

[11] Katherine D. Gotelaere, Defamation or Discourse: Rethinking the Public Figure Doctrine on the Internet, 2 Case W. Res. J.L. Tech. & Internet 1, 3 (2011) (“The traditional public figure doctrine, as formulated through Supreme Court jurisprudence, is unable to meet the needs of the Internet.”).

[12] Id. at 4. 

[13] Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1086 (3d Cir. 1985). 

Restorative Justice: Unique Challenges for Rural Communities

Blog Post | 108 KY. L. J. ONLINE | Jan. 14, 2020

Restorative Justice: Unique Challenges for Rural Communities

Seth Woods[1]

Over the past thirty years, a number of communities across North America have implemented restorative justice programs as an alternative supplement to their traditional criminal justice systems.[2] By viewing crime as a violation of individuals and personal relationships, restorative justice programs bring penitent offenders face-to-face with their victims and trained community supporters with the goal of resolving conflicts and reducing the likelihood of reoffending.[3] Recidivism success is one reason why these programs are so highly regarded: according to a long-term study in Longmont, Colorado, the town’s recidivism rate dropped in the past decade from over 32% to just 10% after first-time offenders were provided a restorative justice alternative.[4] Restorative justice programs have also been shown to be significantly more cost-effective than traditional judicial practices (in one study, saving over $1500/year per participant).[5] The programs tend to produce higher satisfaction rates among both victims and offenders.[6]

Despite the alluring results that can come from restorative justice, rural Kentucky has yet to see significant investment into it.[7] Only the state’s largest and fifth-largest cities[8] of Louisville[9] and Covington[10] have established related community justice programs; while in Lexington, the University of Kentucky[11] and Fayette County Public Schools[12]have incorporated restorative justice principles into their student conduct procedures.[13] Smaller communities such as Maysville have started the discussion [14] with moderate support, but have encountered setbacks that more urbanized cities did not.[15]

This is because the legal infrastructure in rural areas is different from more populous communities. For a restorative justice program to succeed, there must be intensive support from a number of community stakeholders—with each stakeholder facing their own unique obstacles. From the legal sector, for example, a judge must be willing to issue and abide by novel sentencing standards, a prosecutor must balance victims’ or others’ desire for retribution against the public interest in reducing recidivism, and a defense attorney must overcome the instinct to instruct their client not to admit guilt or speak to the victims.[16] In many restorative justice cases, the arresting police officer is included in part of the dialogue.[17] Significant support is needed from community partners as well: educators, religious leaders, and local organizers must each dedicate time and attention to offenders while they rehabilitate through the program.[18]

Rural restorative justice advocates face a dilemma when there is only one judge or attorney with the authority to approve such a program: it becomes an “all-or-nothing” situation that can fall apart after the first stakeholder opts out, because there are no alternatives available. Because both the risk and reward are so great, each stakeholder should be fully apprised of their role in the restorative process and make their commitment known before the program begins.

[1] University of Kentucky College of Law, J.D. expected 2021.

[2] Patricia Hughes & Mary Jane Mossman, Rethinking Access to Criminal Justice in Canada: A Critical Review of Needs, Responses, and Restorative Justice Initiatives 34 (2001), https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr03_2/rr03_2.pdf.

[3] U.S. Dep’t of Justice Office of Juvenile Justice and Delinquency Prevention, Effectiveness of Restorative Justice Programs (July 2017), https://www.ncjrs.gov/pdffiles1/ojjdp/grants/250995.pdf.

[4] Madeline St. Amour, Restorative Justice Program in Longmont Sees Success, Spotlights Community, Longmont Times-Call, Dec. 22, 2018, https://www.timescall.com/2018/12/22/restorative-justice-program-in-longmont-sees-success-spotlights-community/.

[5] Bryant Jackson-Green et al., Making Illinois Smart on Crime: First Steps to Reduce Spending, Ease Offender Re-Entry and Enhance Public Safety 12 (2015), https://files.illinoispolicy.org/wp-content/uploads/2015/08/CrimJustice_Report-1.pdf.

[6] Rebecca Beitsch, States Consider Restorative Justice as Alternative to Mass Incarceration, PBS Newshour (Jul. 20, 2016), https://www.pbs.org/newshour/nation/states-consider-restorative-justice-alternative-mass-incarceration.

[7] This is in comparison to the state’s Drug Court system, a specific type of restorative justice that has become very successful in Kentucky. Since the program’s inception in 1996, Drug Courts have been established in 113 of Kentucky’s 120 counties. Ky. Admin. Office of Courts, Kentucky Drug Court: Saving Costs, Saving Lives (2017), https://kycourts.gov/courtprograms/drugcourt/Documents/KYDrugCourtSitesMap.pdf.

[8] Ky. State Data Center, Total Population (2010-2018), Sorted by City Name (May 24, 2019), http://ksdc.louisville.edu/wp-content/uploads/2019/05/subcoest2018_alpha.xlsx.

[9] About Us, Restorative Justice Louisville, http://www.rjlou.org/about-us/ (last visited March 12, 2020).

[10] Community and Restorative Justice – Covington, https://www.facebook.com/CRJCovington/.

[11] Univ. of Ky. Office of Student Conduct, Restorative Justice, https://www.uky.edu/studentconduct/restorative-justice.

[12] Fayette Cty. Public Schools Dep’t of Equity, School Support & Community Engagement, Restorative Practices, https://www.fcps.net/restorative. 

[13] Community Restorative Justice Can Transform Outcomes, City of Maysville (Aug. 15, 2017), http://www.cityofmaysville.com/community-restorative-justice-can-transform-outcomes/.

[14] Public Input Sought on Community & Restorative Justice, City of Maysville (Oct. 31, 2017), http://www.cityofmaysville.com/public-input-sought-on-community-restorative-justice/.

[15] Interview with Lisa Dunbar, City Clerk, City of Maysville, Kentucky (Jan. 1, 2020).

[16] Id.

[17] Beitsch, supra note 6.

[18] Dunbar, supra note 15.