Jefferson County Public Schools (JCPS) is the largest school system in Kentucky, at just over 96,000 students.[1] To put this into perspective, the JCPS Parent Teacher Association has more members than forty-six Kentucky counties have as residents.[2] Due to the sheer size of the district proportionality, it is fair to say that the problems of JCPS are the problems of Kentucky. Add in Louisville’s specifically complicated racial history around busing, and the plot changes from just a Kentucky story, to a decidedly American one.[3]
Read moreDemystifying Telehealth: Navigating the Virtual Care Legal Landscape
In today's society, people face various challenges when seeking healthcare. People have hectic work schedules, mobility issues, or live in rural areas, so taking time to drive to the doctor’s office or to spend time sitting in a waiting room while sick is not always practical. Seeing a doctor virtually from the comfort of home while lying on the couch or in bed is the perfect “medicine” for today’s busy lifestyles. These digital platforms, referred to as telehealth, utilize technology to provide medical consultations, diagnoses, remote patient monitoring (RPM), and through treatment via messaging apps, video calls, and phone calls.[1]
Read moreIs Age Just a Number?: Judge Newman’s Age and Mental Capacity Questioned and the Necessity of Change in the Judiciary
More than thirty states and the District of Columbia have implemented mandatory retirement after a given age for their judges.[1] Courts such as Pennsylvania have adopted a mandatory retirement age of seventy-five, with judges having until the end of the calendar year to retire after reaching that age.[2] Seventy-five is currently the highest age limit at which a state judge may serve on the bench for states that have implemented mandatory retirement plans.[3] While many state courts have adopted a mandatory retirement age, federal court judges serve with life tenure or “good Behavior”.[4] Judge Pauline Newman—who serves on the Federal Circuit—is the oldest active judge at ninety-six.[5] Judge Newman is lauded for her work on patents.[6] Her colleagues have gone so far as to call her “the heroine of the patent system.”[7]
Read moreThe Race Horse Cost Recovery Act of 2023: Why the Three-Year Depreciation Schedule for Horses Should be Made Permanent
Taxes have or will have an impact on every person who “lives or works” in the United States throughout their lifetime.[1] Undeniably, the monetary implications of taxes are felt by many, as the aforementioned standard of simply living or working in the United States is a rather low bar to meet. Taxes related to the horse industry carry a familiar punch to their owners as “[t]he cost of owning a horse is such that it is nearly impossible to be part of the equine industry unless it is done as a business.”[2] As the economic feasibility of owning racehorses is shaky, “[t]here is no need to pay more than you need to properly care for your horse and you should make certain that you are maximizing the tax benefits of your investment.”[3] Congress should pass The Race Horse Cost Recovery Act of 2023 and make permanent the three-year depreciation to reduce the economic instability that race horse owners face and ensure the continued livelihood of horse racing in our country.
Read more“Routine” Is Not Enough: Insurance Coverage for Experimental Cancer Screening Methods
609,820 Americans are expected to die from cancer in 2023.[1] About 14% of those incidences of cancer are detected through “a recommended screening test.”[2] According to one expert, “’the vast majority of cancer types don’t have screening tests available.’”[3] It has been estimated that having too few patients enroll causes about one-fifth “of cancer clinical trials [to] fail.”[4] Congress has previously attempted to address these problems.[5] The CLINICAL TREATMENT Act, enacted in 2019, requires states “to cover and reimburse routine costs of care for treating a Medicaid enrollee who is participating in a qualifying clinical trial.”[6] Even when people choose to participate in clinical trials, the ambiguous language of the CLINICAL TREATMENT Act can lead to additional costs for participants.[7] Due to that ambiguity, as well as disparities in insurance policies[8] and limited diversity among participants in clinical trials,[9] further legislation is needed to expand requirements for the insurance coverage of participation in clinical trials for cancer screenings to ensure that testing methods for cancer are as effective and widely available as possible.
Read moreE-Notice Reasonably Calculated? How Mullane Champions Modern Service of Process Adaptations
Imagine being on your way to work when suddenly, an uninsured driver collides into your vehicle. Considering all available options, you decide to initiate suit. After unsuccessfully trying to serve the defendant via certified mail,[1] you provide the defendant’s contact information and $50 service fee[2] to the county sheriff.[3] Upon further inquiry, the sheriff determines that (1) the defendant does not live at the address provided, (2) the current homeowner does not know the defendant, and (3) there is no traceable record of the defendant’s current whereabouts. Clearly, personal service did not work. So now what?
Read moreDestabilizing Women’s Equality: Why the Fed Wins and Women Lose as ARPA Funds Expire
Women have been asked to faithfully march to the top of the hill, children strapped to their backs, with the promise that equality awaits if they just keep climbing. But what, if anything, are we to do when we reach the top only to find that our summit’s foundation is a false floor—forcing us back to the beginning? While hyperbolic, this imagery is far from hysteric . . . it is reality now faced by millions as COVID-19 relief childcare subsidies ended October 1, 2023.[1] At the same time, the Federal Reserve (“The Fed”) has been actively fighting inflation through a series of interest rate hikes, traditionally implemented to slow demand.[2] When inflation defies this expectation, however, the Fed seeks to accomplish its goal through other means—including workforce reduction. Regardless of intention, the Fed will likely reach their inflation reduction goal via the Congressional inaction surrounding childcare subsidies because many mothers will have to make the choice leave their careers rather than pay exorbitant childcare costs.
Read moreKentucky’s Legalization of Sports Wagering: How the Sports Gambling’s Ties to Horse Tracks Continue to Leave the Horseracing Industry Financially Vulnerable
In its 149-year tenure, Churchill Downs has hosted some of the most spectacular moments in sports history.[1] The racetrack witnessed its most recent milestone on September 7th, 2023, when Governor Andy Beshear traveled to Louisville, KY to place the first legal sports wager in the Commonwealth’s history.[2] The Governor’s bet marks the culmination of what has been a persistent push by Kentucky residents to legalize sports gambling in the Commonwealth and signifies the start of what is set to be an integral relationship between casino entertainment companies and the horseracing industry.[3]
Read moreBlue Ain’t Your Color: Kentucky’s Bar to Entry for Lawyers with Mental Health Diagnoses and Disabilities
The Kentucky Supreme Court Rules lay out the broad purpose of the fitness component of the Kentucky Bar application.[1] Fitness, in the language of the rule, speaks to the “competence of a prospective lawyer,”[2] and the function of the fitness section of the application is to “exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, Courts or the profession.”[3] Fitness is therefore about the desirability of prospective conduct. Bar examiners are not medical professionals rendering clinical judgments; their task is rather to enforce social preferences against the admission into legal practice of those who, because of some perceived and present defect, cannot carry out their professional responsibilities.
Read moreNon-Delegation Revisited?: The Court’s Changing Views in Light of Gundy v. United States
The basis of the non-delegation doctrine is straightforward and rooted in the principle of separation of powers: Congress may not fully delegate its strictly legislative powers to the executive, or some other branch of government.[1] The Court’s current test requires little to show the delegation is not strictly legislative, Congress must only provide some “intelligible principle” upon which the executive branch can rely while carrying through their delegated authority.[2] Consequently, this broad discretion has resulted in the Court’s almost constant deference to the executive’s authority.[3] Only twice in the Supreme Court’s jurisprudence, both during the height of the New Deal, has the Court found that such an “intelligible principle” was lacking.[4] This viewpoint existed almost entirely undisturbed for eighty-five years until Gundy v. United States was decided in 2019. Although the plurality decided the case along nearly identical lines as previous cases, a lukewarm concurrence from Justice Samuel Alito and a dissenting opinion from Justice Neil Gorsuch, joined by Justice Clarence Thomas and Chief Justice John Roberts, seem to suggest that the non-delegation doctrine may soon experience an overhaul.[5]
Read moreESG Scores and the Investment Industry: Why Should the Ensuring Sound Guidance Act Leave Room for Future Environmental, Social, and Governance Considerations?
On April 1, 2023, a transgender influencer named Dylan Mulvaney uploaded a short video to her Instagram page for a Bud Light giveaway promotion.[1] Mulvaney briefly showed a photo during the video depicting a special edition Bud Light can with her face on it, provided by Bud Light to celebrate her transition to womanhood.[2] Mulvaney’s short clip sparked a movement to boycott the American lager, which resulted in about $395 million in lost revenue in North America[3] and over $27 billion in market devaluation for Bud Light’s parent company, Anheuser-Busch Companies, Inc. [4]
Read moreAre Courts Inclined to Use a Natural Resource Law Doctrine to Regulate NFT Illegalities?
Where immense amounts of money lie, problems there will be–the story is no different with nonfungible tokens. Just like classic art, the NFT art craze is real.[1] Professionals value this market in the billions of dollars.[2] But one way the NFT market differs from classic art is that its newness makes it extremely volatile to illegalities like price gouging, money laundering, and tax evasion.[3] NFT ownership anonymity is a key contributor to these issues, which raises the question of how does one best regulate this art? One novel answer that a swath of academics might just cling to is the public trust doctrine, a legal principle deeply enshrined in natural resource law (not art regulatory law). Despite academics’ wide support of the doctrine’s general expansion, courts maintain the opposite position.[4] Courts, thus, would not extend the public trust doctrine to regulate NFT illegalities.[5]
Read moreThe Cost of Voting is Costing Our Health: How Can Kentucky Do Better?
Voting and democracy is one of the most revered parts of the American experiment. Our founders envisioned a government that was directed by the people and for the people. The most import facet of this government by the people, of course, is access to the polls and voting. Unfortunately, for many Americans it is not easy to vote, and there has been a wave of restrictive voting registration policy over the last several years.[1] In 2021 alone, nineteen states passed laws restricting access to voting, and this represents only a small fraction of the legislation that was introduced.[2] This restriction on who can vote, when they can vote, and what they must present when they arrive at the polls has far reaching impacts. Some of those impacts are well known. Public policy and lawmakers shape everything about our world and environment, including health, social, and economic policy.[3] Recent research has also indicated that that there is a strong correlation between access to voting and public health outcomes.[4] Overall, this research has indicated that states who have more inclusive voting policies combined with higher levels of civic participation have citizens who have better health outcomes.[5] Using the Cost of Voting Index[6] and health data gathered from the Behavioral Risk Factor Surveillance System and America’s Health Rankings[7], this correlation is easy to see.
Read moreSenate Bill 5: A Tale of Plausible Deniability
Last month, the Kentucky legislature enacted Senate Bill 5, otherwise known as “An Act relating to education and declaring an emergency.”[1] The new law empowers parents to challenge – and ideally remove – materials, programs, and events that are “harmful to minors” from their children’s schools.[2] The best part about the bill-now-law, according to one of its primary sponsors, is its purposeful ambiguity.[3] Every community can decide for itself what kind of content it considers “harmful to minors.”[4] But ambiguity invites tyranny – a community’s attempt to remove “harm” from its schools may infringe on the First Amendment rights of its students.
Read moreKentucky Should Join the Majority of States and Restore Voting for all Ex-Convicts.
In the last several years, the United States has experienced an increase in voter turnout, as evidenced by the historically high participation in the most recent presidential election.[1] It seems that Americans recognize the importance of this patriotic duty now more than ever. While it is encouraging to see a surge in active voters, many individuals are still unable to participate. The basic restrictions on voting, like age and citizenship status, are widely-known, but some may be surprised to learn that one’s criminal record may result in disenfranchisement. While upon first blush it may seem reasonable to take the right to vote away from someone who has been convicted of a crime, it nonetheless takes away an important democratic right, potentially invoking a lifetime punishment with little justification.
Read more“Blocking Out the Haters:” Government Officials Create Split Among Federal Judiciary
Social media has created a new world for how people communicate and interact with one another. With the ability for users to send messages out instantly to countless individuals, public officials have recognized the value of these platforms and have begun using them for their benefit.[1] Whether it is the President of the United States or a city manager, social media allows government actors to connect with their constituents conveniently.[2] But as is often the case with technological advancements, new constitutional issues are implicated when using these platforms.[3] As a result, an objective test is needed to aid the courts when entering into the new realm of social media.
Read moreDropped Charges Satisfy Favorable Termination for Malicious Prosecution
A recent Supreme Court decision makes it easier for Section 1983[i] plaintiffs alleging malicious prosecution to survive a motion to dismiss. Thompson v. Clark is a substantial shift in civil rights litigation favoring plaintiffs after years of the formidable Heck v. Humphrey decision. In April 2022, the Court in Thompson held that to satisfy favorable termination of malicious prosecution, the plaintiff need only show “the prosecution ended without a conviction.”[ii] For the 6-3 decision, Justice Brett Kavanaugh wrote the majority, including Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett. Justice Samuel Alito, in dissent, along with Justices Clarence Thomas and Neil Gorsuch, contested placing malicious prosecution under the Fourth Amendment.
Read morePersonal Jurisdiction in Kentucky: Differing Approaches to “Transacting Any Business”
Due to the Fourteenth Amendment’s due process protections, “[p]ersonal jurisdiction has always constrained plaintiffs’ access to courts.” [1] States can further limit plaintiffs’ access to courts by adopting long-arm statutes.[2] Kentucky’s long-arm statute does this by enumerating nine categories of conduct where a court may exercise personal jurisdiction over a defendant.[3] One of the categories provides for personal jurisdiction over a defendant “transacting any business” in Kentucky;[4] however, there has been “little precedent interpreting the meaning of ‘transacting business’ as used in” Kentucky’s long-arm statute.[5] Therefore, understandably, Kentucky district courts have differed in their approaches to applying “transacting any business.” Kentucky district courts generally apply one of three approaches: (1) the plain meaning interpretation,[6] (2) the Michigan Court of Appeals interpretation emphasizing “any,”[7] or (3) an interpretation requiring “a course of direct, affirmative actions” in Kentucky.[8]
Read moreIncreasing Access to Mental Health Treatment: Implications of Wit v. United Behavioral Health for Kentucky’s Healthcare System
Mental health and substance abuse (MH/SA) problems are on the rise in the United States, in what many Americans call a “mental health crisis.”[1] According to the Substance Abuse and Mental Health Services Administration, there was an increase in adults with either a mental illness or substance abuse disorder from 2019 (61.2 million in 2019)[2] to 2020 (73.8 million in 2020).[3] Moreover, MH/SA often goes untreated,[4] with the cost of healthcare being cited as the most common barrier keeping Americans from attaining care.[5] These effects are particularly prevalent in the Commonwealth of Kentucky, where 43.7 percent of adults reported anxiety and depressive symptoms in 2021.[6] In 2020, Kentucky had the nineteenth highest suicide mortality rate of the fifty states (801 deaths, 17.6 per 100,000 people).[7] Moreover, in 2020, Kentucky had the second highest drug overdose mortality rate (1,330 deaths, 49.2 per 100,000 people).[8] This crisis has been uniquely exacerbated in Kentucky by the Opioid Epidemic, inducing the Kentucky state government’s attempts to negotiate with pharmaceutical companies and pass legislation aimed at securing drug treatment.[9] Amidst these attempts to provide MH/SA treatment to Kentuckians, there exists a barrier that often goes unnoticed— judicial shields for health insurance companies to deny MH/SA coverage on a federal level.
Read moreFailing Kentucky’s Families: An Appeal to the Kentucky General Assembly to Stop Pontificating and to Start Providing Universal Preschool
In December 2022, Governor Andy Beshear announced that Kentucky had been awarded a $36 million grant to partially fund universal preschool for all Kentucky four-year-olds.[i] The announcement came after several calls by the governor for the Kentucky General Assembly to enact a universal preschool program.[ii] Earlier in the same year, Beshear proposed a budget that included an additional $2 billion toward public schools, with $172 million per year funding the universal preschool program for four-year-olds.[iii] Despite the governor’s best efforts and Kentuckians’ hopes for assistance, childcare costs continue to surge—and the 2023 Kentucky General Assembly chose not to advance legislation that would significantly improve the lives and educational outcomes of children and families.[iv] House Bill 35 was sent to the House Committee on Committees following its introduction on January 3, 2023.[v] The bill did not receive a reading as legislators instead duked it out over drag and pronoun bans.[vi]
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