Eleventh Amendment Immunity in the Eleventh Circuit

Author: Brynn Stylinski, Associate Member, University of Cincinnati Law Review

In Pellitteri v. Prine, the Eleventh Circuit ruled that a Georgia sheriff, in hiring and firing deputies, acts as an arm of the state and is therefore entitled to immunity under the Eleventh Amendment.[1] The plaintiff in Pellitteri was a former sheriff’s deputy who had injured her knee on the job. She requested to be put on temporary light duty, a regularly granted accommodation for those injured on the job, but her request was denied and she was later terminated by Sheriff Prine.[2] She brought a discrimination claim under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA). Sheriff Prine filed a motion to dismiss on the grounds that that the § 1983 and ADA claims were barred by the Eleventh Amendment because he was acting in his official capacity; the district court denied the motion.[3] The Eleventh Circuit reversed the district court’s denial and dismissed the claims, holding that the sheriff was acting as an arm of the state when he terminated the plaintiff and was thus immune from suit.[4]

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Revising the National Letter of Intent

Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review

Within the past few years, the rights, or lack thereof, of college athletes have received significant media attention. One of those discussions centers on the arguably lopsided nature of the National Letters of Intent (NLI) that many student-athletes sign each year. The NLI is a contract between a student-athlete and a university, in which the student-athlete promises to play a sport at the university in exchange for the university’s promise of financial aid for one year.[1] Although the NLI has been riddled with issues since its creation, the new millennium has seen more complaints, resulting from the increased rate of coaching changes and complications surrounding the requirement that each student under twenty-one years of age obtain a parent’s signature on the NLI.[2] This article discusses the pros, cons, and possible solutions to the numerous issues with the NLI.

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Warrantless Searches for Probationers: The Reasonableness of SCOTUS’s Balancing Test

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

When convicted felons are released on probation, may officers conduct a warrantless search of their homes without violating any constitutional rights protected under the Fourth Amendment? The Supreme Court, by conducting a balancing test, holds that officers may do so when they have a “reasonable suspicion” that probationers are violating their probation conditions; a standard of protection lower than the “probable cause” standard that protects fully free citizens from warrantless searches.[1] The specific fact-pattern before the Court that prompted this rule, however, involved a probation condition that explicitly stated a probationer will be subject to warrantless searches.[2]

But when the probationary condition is less explicit and merely subjects the probationer to unannounced home visits at any time, does the Court’s balancing test still apply, or does the legal analysis change? A current circuit split exists regarding that precise issue—the Fourth Circuit finds such warrantless searches based on a “reasonable suspicion” categorically unlawful, while the Eleventh Circuit permits them when they satisfy the Court’s balancing test.[3] Although the courts’ different interpretations are sensible, as a public policy matter, the Eleventh Circuit’s interpretation should be adopted because it better promotes the rehabilitative and societal-protective purposes of releasing individuals on probation.

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Vaccinate All Children: Not Only Is It Legal, but It Benefits Everyone

Author: Dan Stroh, Associate Member, University of Cincinnati Law Review

Vaccines, a medical technology that has existed since the late 1700s, have again become front-page news due to a recent measles outbreak. Despite previously being eliminated in the United States, in 2015 there have been more than 100 confirmed cases of the disease in California alone.[1] Politicians and legal scholars are now faced with two questions raised in the past: Should vaccines be mandatory prior to entering school, and is it constitutional to do so? Showing the importance of this controversy, and despite polls showing that a large majority of the public favors requiring vaccines,[2] candidates and potential candidates in the 2016 presidential election stand on both sides of the issue.[3]

Looking past the political nature of this debate, vaccines present a public health policy and legal issue based largely on old case law. Opponents of mandatory vaccination as a legal issue argue that the Free Exercise Clause of the First Amendment requires that there be a religious exemption in any vaccination law. As the case law predates the application of the Free Exercise Clause, this has not been addressed by the Supreme Court. In addition, some argue that the prior case law requires a different interpretation in light of scientific developments. However, both of these arguments have flaws and the importance of vaccination to the public as a whole should cause the legislatures in all states to require mandatory vaccination.

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The Legality of Preventing Future Crime: Johnson v. United States

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

“Minority Report” is a futuristic science fiction film in which crime is thwarted before it takes place.[1] In the film, a specialized police department, “Precrime,” apprehends would-be murderers before the murder is committed. Clairvoyant “Precogs” indicate that someone will commit a murder and Precrime apprehends the would-be murderers. This sci-fi notion of preventing crime has found reality in modern law. Preventing crime is part of the rationale behind the Armed Career Criminal Act (ACCA). The ACCA imposes longer prison sentences on criminals with criminal histories in order to prevent future harm.[2] In Johnson v. United States, a case to be argued in front of the Supreme Court on April 20, 2015, the Court must determine what constitutes a “violent felony” under the ACCA, and in the process will clarify a circuit split on this issue. Furthermore, the Court’s decision will significantly impact individuals in situations similar to that of defendant Johnson across the country, whose prison sentences depend on the scope of what is considered a “violent felony.” The Eighth Circuit has decided that possession of a short-barreled shotgun is a violent felony, but the Supreme Court should reverse this decision and hold that mere possession of a short-barreled shotgun is not a violent felony.

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As Different as Violins and Violas: Why Public Records Requests Are Not the Same as Discovery

Authors: Jack Greiner and Zoraida Vale, Graydon Head & Ritchey

We heard a joke the other day that went something like this. Q: “What’s the best way to keep your violin from being stolen?” A: “Put it in a viola case.” Did we mention we heard the joke on NPR? Somewhere, some classical music buffs are laughing hysterically.

But the joke illustrates an important point. Sometimes two things that look similar are actually quite different. And so it is with discovery and public records requests.

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Article V Convention: Can It be Controlled?

Author: Matt Huffman, Associate Member, University of Cincinnati Law Review

Article V of the United States Constitution provides two methods to amend the Constitution. Under the traditional method, Congress can propose amendments once two-thirds of both houses of Congress approve the proposal. The second method, known as an “Article V Convention,” has never been used. Article V allows state legislatures to call a Convention to propose amendments if two-thirds of the States (thirty-four) apply for such a Convention. In recent years, some state legislatures have called for an Article V Convention, primarily to propose a balanced budget amendment. Two groups oppose the amendment: (1) those opposed to a balanced budget amendment and (2) those concerned with the procedure of the Convention. This article discusses the unsettled procedure for calling and conducting an Article V Convention.

Because an Article V Convention has never been held, opinions differ on how the Convention would operate. Some scholars worry about a “runaway convention” that would exceed the intended scope of the Convention and radically alter the Constitution.[1],[2] Although an Article V Convention has never been used, there have been a significant number of applications for such a Convention in the past.[3] Given the recent wave of states calling for the adoption of a balanced budget amendment by way of an Article V Convention, it is possible that the procedure for the Convention will need to be decided in the near future. This article also analyzes the extent to which the states or Congress could limit the scope of an Article V Convention in order to prevent a “runaway convention.”

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The FTC: Cyber Security Savior or Data Dictator?

Author: Leanthony Edwards Jr., Associate Member, University of Cincinnati Law Review

Throughout the past few years, data privacy and cybersecurity have become hot topics within the U.S. legal system and the media. Last year, prominent U.S. corporations like Sony and Home Depot suffered major data breaches that caused significant financial and reputational harm for both the companies and consumers. In response to the increase in massive data breaches, President Obama featured cyber security issues prominently in the State of the Union address.[1] Although getting data security on the national agenda was an important breakthrough, the U.S. may suffer in the near future as a result of Congress’s failure to allocate appropriate resources toward devising a legitimate data security strategy. With dubious legislative authority, the Federal Trade Commission (FTC) has ordained itself the regulatory authority responsible for policing data security policies within the United States. This article highlights two lawsuits brought by the FTC that depict this most recent power grab and illustrate why the FTC’s assumption of this data security role is troublesome.

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Should There Be a Scienter Requirement for Designer Drugs?

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

Advancements in chemistry and technology have lead to unprecedented innovation in the drug market. Some criminal-minded people have circumvented federal drug laws by creating so-called “designer drugs” like bath salts. The law’s treatment of those manufacturing and distributing designer drugs has led to a contentious circuit split. The split hinges on whether the government must prove that these “underground chemists” knew that they were dealing drugs analogous[1] to controlled substances in order to be convicted of a crime. The courts have interpreted the statute differently as to the scienter requirement applied to analogue substances. Of the circuits that have decided this issue, the majority, led by the Seventh Circuit, has concluded that the prosecution must prove that the defendant knew of the similarities between the controlled substance and the analogue. The minority, in contrast, has determined that the government only needs to prove that the substance was intended for human consumption. Given the plain language of the statute, the majority’s stance is the more reasonable, logical approach, and so should be adopted by the Supreme Court when it reviews this issue later this Term.

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Federal Circuit No Longer to Review Patent Claim Construction Entirely De Novo

Author: Jon Siderits, Associate Member, University of Cincinnati Law Review

On January 20, 2015, the Supreme Court announced its decision in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., and did away with the Federal Circuit’s longstanding application of a purely de novo standard when reviewing a district court’s construction of a patent claim.[1] Specifically, the Supreme Court held that the Federal Circuit must review the district court’s resolution of any subsidiary factual matters under a clear error standard of review, and only then may it resolve the ultimate legal question of claim construction de novo.[2]  Marking a significant shift in the role of the district court judge in claim construction, and realigning the appellate court’s role with the Federal Rules of Civil Procedure, the Teva decision ensures that the lower court’s construction will play a more dispositive, rather than disposable, part in patent infringement cases.

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