Go Ahead, Scream Obscenities at Your Boss

­Author: Erin Alderson, Notes and Comments Chair, University of Cincinnati  Law Review

Before the Plaza Auto Center[1] decision, one could probably assume that calling your boss a “f—— m—— f——” would fall into the category of egregious conduct. In its Plaza Auto Center decision, however, the National Labor Relations Board (the NRLB) determined that even when an employee screams obscenities at his boss, he does not fall outside of the scope of protection of the National Labor Relations Act.

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The Curious Case of Douglas Prade: How an Appellate Court Reversed a Finding of “Actual Innocence”

Author: Cameron Downer, Associate Member, University of Cincinnati Law 

On the morning of November 26, 1997, Dr. Margo Prade was brutally murdered in the parking lot of her medical office. At some point during the murder, the assailant bit Margo through her blouse and lab coat. Her husband, Akron Police Captain Douglas Prade, was indicted for the murder. At trial, the key piece of physical evidence was the bite mark. However, the limitations of then-existing DNA technology could only conclusively identify Margo’s own DNA on the bite mark. The remaining evidence at trial was inconclusive. At the end of the trial, Prade was convicted and sentenced to life in prison.[1]

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The Burden of Applying Casey’s “Undue Burden” Standard

­Author: Ryan Goellner, Blog Editor, University of Cincinnati Law Review

After expedited consideration of an injunction of Texas’s now (in)famous House Bill 2 (H.B. 2),[1] in late March the Fifth Circuit Court of Appeals upheld the law’s regulation of abortion providers as comporting with the constitutional protections of a woman’s right to have an abortion.[2] In its strongly-worded order reversing the district court’s permanent injunction of the law in Planned Parenthood v. Abbott, the Fifth Circuit meticulously applied two familiar Supreme Court abortion cases, Planned Parenthood v. Casey[3] and Gonzales v. Carhart,[4] concluding that the Texas law was rationally based and did not impose an undue burden on women seeking abortions in Texas. Although appellate review has settled the Texas case for now, the Fifth Circuit’s intense scrutiny of H.B. 2, applying the reasoning of Casey and Gonzales to the trial court’s findings, reveals the new judicial frontier of the abortion battleground: using constitutional case law to evaluate the validity of detailed regulations of abortion providers that push at the outer limits of Roe v. Wade’s original abortion protections.[5]

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Protection in Leasing: Pennsylvania’s GMRA Forces Lessees to Get Creative

Author: Brad Dunkle, Associate Member, University of Cincinnati Law Review

Last year, a Pennsylvania Superior Court ruled that including a provision in an oil and gas lease assigning a portion of the royalty back to the company violated the Guaranteed Minimum Royalty Act (GMRA).[1]  In Southwestern Energy Prod. Co. v. Forest Res., LLC, an oil and gas company attempted to have a lessor “assign-back” half of its royalty for marketing purposes.  Pennsylvania’s GMRA guarantees that mineral owners leasing their land for oil and gas production receive a minimum of one-eighth royalty on oil and gas produced from property.[2] Although the court held that its ruling in no way affects a lessor from assigning or conveying its royalty independent of the lease, this holding alters the way oil and gas leases are constructed in Pennsylvania and may have an impact on current leases assigning royalties.

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Obergefell, Bourke, and “Fundamental Rights”: Gradually Bringing Same-Sex Marriage to Ohio and Kentucky

­Author: Ryan Goellner, AssociateMember, University of Cincinnati Law Review

With recent narrow decisions in two federal lawsuits[1] challenging state constitutional bans on same-sex marriage, federal judges in Ohio and Kentucky have propelled the Sixth Circuit to the vanguard of interpreting the Supreme Court’s recent decision in United States v. Windsor.[2] The two district court judges not only utilized the constitutional momentum generated by Windsor to chip away at and severely curtail those amendments prohibiting same-sex marriage, but also essentially invited the Sixth Circuit to review their respective decisions and to reexamine its own jurisprudence on sexual orientation in light of Windsor. In one respect, the results in these lawsuits mirror many federal courts’ recent decisions in similar cases.[3] More importantly, however, these cases illustrate the struggle to wade through Windsor’s unclear standard of review, the intricate legal hoops through which district courts are jumping in post-Windsor lawsuits, and the building bottoms-up pressure for the Federal Courts of Appeals to assist in Windsor’s interpretation and application.

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Will Aereo Kill the TV Star?

Author: Matthew Byrnes, Associate Member, University of Cincinnati Law Review

In late April, the Supreme Court heard oral arguments on a case that has the potential to drastically change how Americans watch broadcast programming. The case, American Broadcasting Companies, Inc. v. Aereo, Inc., (“Aereo”) involves the online television subscription service Aereo.[i] Founded in 2012, Aereo allows its users to view or record local network broadcasts on their computer or web-enabled devices starting at $8 a month, plus tax.[ii] Unlike a cable television provider however, Aereo does not pay licensing fees to carry these over-the-air transmissions. Broadcasters fear this will undercut more than $3 billion in annual revenues that they receive from retransmission fees.[iii] In light of the “cut-the-cord” trend, this fear is warranted. If Aereo’s business model is upheld amidst copyright infringement claims, it will rock the traditional cable provider structure. However, when looking to the history of the Copyright Act and its treatment of the broadcasting industry, the Supreme Court is right to pull the plug on Aereo’s system unless it starts paying royalties.

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Experimenting with Death: Baze v. Rees, the Execution of Dennis McGuire, and the Constitutionality of Experimenting with Lethal Injection Drugs

Author: Johnny Holschuh, Contributing Member, University of Cincinnati Law Review

The “horrific” execution of Dennis McGuire by the state of Ohio in January 2014 has aroused international attention regarding the death penalty. The decision by the Southern District of Ohio denying McGuire’s federal petition challenging Ohio’s use of a new drug combination in his execution demonstrates the inability of the U.S. Supreme Court’s Baze v. Rees test to ensure that rapidly changing execution protocols utilizing new drugs and dosages to kill condemned inmates do not violate the Eighth Amendment. With both international and domestic law prohibiting non-consensual scientific experimentation on humans, the legitimacy of the Baze test and the legality of experimenting with lethal injection drugs must be reconsidered.

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Criminal Forfeiture is Taking the “Just” out of Justice: Kaley v. United States

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

On February 25, 2014, the United States Supreme Court in Kaley v. United States held that defendants are not constitutionally entitled to a pre-trial hearing to challenge a grand jury’s probable cause determination that they committed a crime. This decision means a grand jury determination is an appropriate trigger to allow forfeiture of the defendant’s property under 21 U.S.C. §853(e).[1] Justice Kagan, in her majority opinion, reasoned that since a grand jury indictment may lead to the pre-trial restraining of persons, it similarly has the power to deprive a person of his assets. Therefore, the grand jury may deprive someone of both liberty and property, even if that property is used to pay for the person’s attorney.

Although the Supreme Court hopes to prevent pitting judges against grand juries, the majority’s opinion in Kaley opens the door for prosecutorial abuse. Pre-trial forfeiture can now be used as a weapon by the prosecution to deprive a defendant of his counsel, without challenge. Considering a grand jury indictment is a mere “rubber stamp” in the perspective of the prosecution, the prosecution now has unfettered discretion to deprive a defendant of counsel, thus unfairly increasing the chances of successful prosecution.[2]

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Disclosing a “Butt-Dial”: A Funny (but Important) Crack in Title III

Author: Matthew Byrnes, Associate Member, University of Cincinnati Law Review

Although many people have suffered from the potentially humiliating consequences of a so-called “butt-dial” or “pocket-dial,” it is likely that few, if any, have ever sought civil damages against the recipient. That is, until Jim Huff, chairman of the Kenton County Airport Board and his wife, Bertha, filed suit against Carol Spaw, a secretary at the airport, for receiving, recording and disclosing conversations she overheard when Mr. Huff placed a pocket-dial to her desk phone. U.S. District Court Judge David L. Bunning dismissed the lawsuit on the grounds that the Huffs lacked an objectively reasonable expectation of privacy and the Huffs have filed an appeal.[i] The case is likely one of first impression with ramifications that extend well beyond the civil context. For example, many individuals have been arrested after placing pocket-dials to 911 while discussing or in the commission of criminal acts.[ii] If an objectively reasonable expectation of privacy were to be found, this evidence would have to be suppressed under Title III’s exclusionary rule.[iii] But despite the novelty of the issue and circumstances, the history of Title III and its application in both civil and criminal contexts support dismissal of pocket-dial based claims.

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Where Personal Meets Professional:  The Difficulties of Proving Tortious Interference by Clients in the Firm Environment

Author: Bradley Dunkle, Associate Member, University of Cincinnati Law Review

Carol Sparks Drake, an Indiana attorney, recently saw her home and work lives collide in a most unfortunate manner.  For more than twenty years, Drake worked as a partner in the law firm of Parr Richey Obremskey & Morton (“Parr Richey”).  However, in 2006, the partners reconstituted the partnership, electing to leave Drake out.[i] Why did the partners of Parr Richey choose to cut out this long term partner despite Drake’s impression that “none of the partners had indicated in any way that [her] future with the firm was in any jeopardy?”[ii] Drake’s dispute with Duke Realty, a Parr Richey client, over land use near her family residence, a forty-six acre farm in Boone County, Indiana, appears to be the answer.[iii] Although Drake’s contract with Parr Richey could be terminated at-will, she claims that Duke Realty impermissibly interfered with her employment contract and influenced Parr Richey to terminate her.[iv] The Indiana Supreme Court’s determination in Drake v. Dickey that a third party can tortuously interfere with an employment contract could prove important in determining how much influence clients have on businesses.[v]

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