The UC Law Review Forum

Adam Pitchel, Associate Member, University of Cincinnati Law Review

The First Amendment protects the freedom to express oneself through conduct.[1] Protests, rallies, and demonstrations typically bring together many people to collectively espouse their views and enhance the overall force of their message. However, the freedom of expression and by extension, the freedom to protest, is limited and subject to restrictions.[2] Regulations that constrain the freedom of speech are subject to intense scrutiny and usually implemented to protect public safety.[3] In these cases, legislators and judges must balance free speech rights against the possible consequences of that speech. Recently, protestors opposing the Dakota-Access Pipeline (DAP) obstructed several of the roads across the state and delayed traffic for several hours.[4] People have engaged in similar types of protests around the country for various reasons.[5] In response, the North Dakota Legislative Assembly introduced H.B. 1203, which states “notwithstanding any other provision of law, a driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages.”[6] State lawmakers have cited emergency concerns, traffic safety, and public orderliness as motivations for drafting this piece of legislation.[7] Unfortunately, this bill was poorly drafted and failed to adequately balance expressive conduct against public safety considerations. Continue reading →

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

Immigration currently dominates the national conversation as President Trump’s travel ban and plans to build a wall on the south border have captured the attention of the nation. The immigration debate captures the attention of the nation because America has often been described as a nation of immigrants. Amidst this contentious debate, hundreds of thousands of people from around the world seek entry in to this country.[1] In the fiscal year of 2015, the United States naturalized 729, 995 people.[2] One issue that occurs in this process is when persons applying for naturalization lie on their applications in order to secure naturalization. The Immigration and Naturalization Act (INA) addresses this issue: “Whoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person … [s]hall be fined not more than $5,000 or, imprisoned not more than five years, or both.[3] However, the Sixth and Ninth Circuits have disagreed about whether this statutory language requires a “material falsehood” in order to denaturalize a person. The Ninth Circuit found this statutory language required a showing by the government that the falsehood was materially false.[4] Alternatively, the Sixth Circuit held this language did not require a material falsehood in order to denaturalize a person.[5] The Sixth Circuit holding was the better decision because it better protects our nation from potential threats, while ensuring the protection of constitutional liberties. It also respects the proper role of the courts when interpreting statutes. Continue reading →

Ryan Kenny, Associate Member, University of Cincinnati Law Review

Imagine two people riding on a bus, Jim and Jane. Jim is enjoying a bag of potato chips during his commute. However, the loud crunching of the chips annoys Jane, who just wants to enjoy her book. The question is: did the monetary cost of the potato chips to Jim accurately reflect the additional, negative cost of annoying Jane? Economists refer to this as a negative externality; the cost suffered by a third party in a transaction between two other parties.[1] One proposed solution to capturing this additional cost is a Pigovian tax, applied to the transaction to accurately capture the actual cost of the transaction.[2] One type of a Pigovian tax is a carbon tax, applied to carbon-emitting transactions and industries to reflect environmental costs that are not typically represented in the cost to producers and consumers of products. Recently, some respected members and former civil servants in the Republican party have suggested replacing the Obama administration’s environmental regulations with a carbon tax.[3] The Department of the Treasury’s Office of Tax Analysis (OTA) wrote a working paper (Paper) on how such a tax could be implemented: using either an upstream or midstream approach, or a combination of both.[4]  Continue reading →

Adam Pitchel, Associate Member, University of Cincinnati Law Review

Identity theft has developed into a serious concern for most people in the 21st century.[1] Criminals’ ability to open fraudulent accounts, make purchases, and tamper with people’s credit history has drastically increased the importance of protecting private information. Companies responsible for preserving and protecting this information have occasionally failed to do so, resulting in breaches and possible theft of personal data.[2] When these incidents occur, the risk of identity theft increases significantly.[3] There remains a question of whether the risk of future identity theft creates enough harm to sustain a civil claim. Currently, circuit courts are divided over this issue. The Sixth, Seventh, and Ninth Circuit Courts have held that an increased risk of identity theft is sufficient to justify a claim.[4] In contrast, the First, Third, and Fourth Circuits have held that an increased risk of identity theft is not a sufficient injury to warrant a lawsuit.[5] The approach used by the Sixth, Seventh, and Ninth Circuits is simpler and better comports with the requirements of Article III of the Constitution. Continue reading →

Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review

In March 2014, Congress introduced the Truth in Advertising Act Bill.[1] The goal of the law was for the Federal Trade Commission (FTC) to regulate to what extent advertisers could digitally alter images[2] used in advertisements through a systematic framework.[3] Digitally altered images of models in beauty ads, the Act’s supporters say, are harmful to consumers as they are misleading, manipulative, and they contribute to negative body-image.[4] The Act did not gain the momentum necessary to pass the bill into law, and remained stagnant until a reintroduction in early 2016.[5] Although the Act is well intended, and takes on the noble effort of ensuring that men and women in America are not bombarded with images of unattainable beauty, the Act has many flaws and gaps that need to be addressed before it can be successful.

The major issue with the Act: blanket regulation on all digitally altered advertisements. Since not all digitally altered images are necessarily misleading, or contribute to negative body image, the fate of the Act remains unclear. Digital alterations of images often speak to simple aesthetics of an advertisement, and seek to only enhance the visuals. Other times, digital alteration can delve into manipulation.[6] The point of contention is discerning when artistry and creativity cross over into manipulation. Drawing that abstract line, distinguishing the point where art transcends into something dangerous, is what lawmakers struggle to mold.[7] Continue reading →

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

Imagine taking basic ingredients found in your cupboard, blending them all together, and then baking the substance until it was brick-like in both texture and taste. Now imagine being subscribed that as a meal three times a day for upwards of fourteen days in a row. That is the reality for many inmates in prisons across the United States today. Prison food is largely unappealing, but there comes a point where prison meals cross over from a culinary catastrophe to an unconstitutional use of punishment. Throughout the United States, prisons use the nutraloaf as an outdated form of punishment and either the Supreme Court or state legislatures must prohibit its use.

What is the Nutraloaf? Continue reading →

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review

Article II, Section 2, Clause 2 of the United States Constitution vests in the President of the United States the power to appoint public officials with the advice and consent of the Senate.[1] This clause, known as the Appointment Clause, serves as “a bulwark against one branch aggrandizing its power at the expense of another branch.”[2] By requiring the advice and consent of the Senate, the President’s appointment power is checked by the legislature to ensure that officers of the United States are thoroughly vetted to assume a role with “significant authority.”[3] The Constitution bifurcates officers of the United States into classes; principal officers and inferior officers.[4] Whereas principal officers must be nominated by the President with the advice and consent of the Senate, Congress may vest the power to appoint inferior officers solely in the hands of the President, the courts, or the heads of departments.[5]   Continue reading →

Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review

At federal sentencing hearings across the country, the judge takes the time to explain how her hands are tied by an independent agency in Washington, DC, the United States Sentencing Commission.[1] The judge explains to the defendant and others in attendance that she is required by law to start her sentencing analysis with the Federal Sentencing Guidelines that accounts for all of two factors before dictating a recommended sentence.[2] Only then may the judge impose a sentence different (lesser in almost every case)[3]than what the guidelines recommend, and furthermore, she must elaborate upon why she has amended the sentence.[4] Regardless, any sentence is still subject to the constraints of the statutory mandatory minimums.[5] The goal of all the statutory constraints on federal sentences is to create uniformity in federal sentencing,[6] so that a hypothetical defendant in Texas is not incarcerated for decades for committing the same crime while one in California is slapped on the wrist. However, uniformity in sentencing has come at the price of reasonability. The Sentencing Commission’s recommended sentences are out of touch with the sentiments of many communities across the country, and the agency should use federal judges and juries, that deal with sentencing every day, as a resource to ensure that the sentences are not punishing people beyond what our society believes is reasonable or necessary. Continue reading →

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

Modern life in American is often lived at a frantic pace and it is difficult for families to balance their work and family obligations. The Family & Medical Leave Act (FMLA) is designed to promote work-life balance in America.[1] It seeks to promote equal employment opportunities for men and women while balancing the interests of employers.[2] “The FMLA applies to all public agencies, pre-university schools, and companies with fifty or more employees.”[3] It requires covered employers to provide up to twelve weeks of unpaid job leave for a variety of reasons.[4] These reasons may include caring for an ill family member, the birth of a child, and individual health concerns.[5] Litigation surrounding this statute often questions whether an employer’s denial of leave to an employee violates the FMLA. In these cases, an important issue is when the statute of limitations begins running. The Seventh Circuit ruled that the statute of limitation begins to run when the violation of the FMLA occurs, not when the termination occurs.[6] The Sixth Circuit took the opposite approach, holding the statute of limitation begins at the employee’s termination.[7] While the policy of the Sixth Circuit decision is well intentioned, there is no support for the decision in the FMLA text. Congress should amend the statute to reflect the policy of Sixth Circuit in response to the circuit split.

Seventh Circuit Decision

The Seventh Circuit recently weighed in on the issue of when the FMLA statute of limitations starts to run. In Barrett, the plaintiff was employed by the Illinois Department of Corrections (“department”).[8] The employee was fired after twelve unauthorized absences in seven months.[9] The employee argued that three of the absences were protected under the FMLA because the absences were for family or medical care.[10] On each of the three occasions, the employee’s supervisor was notified of her absence but never received authorization to be absent.[11]On appeal, all three times the Employee Review Board rejected her request for leave.[12]

The court began by looking at the plain language of the statute, which states “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.”[13] The court reasoned, “when a[n] FMLA plaintiff alleges that his employer violated the Act by denying qualifying leave, the last event constituting the claim ordinarily will be the employer’s rejection of the employee’s request for leave.”[14] Using this language, the court held the statute of limitations began every time the Employee Review Board ruled against the plaintiff’s request for leave.[15] The plaintiff did not file her complaint until 2012, but her Employee Review Board hearings had occurred in 2004 and 2005. [16] Therefore, she was several years too late in bringing her claim against her employer.[17] The court rejected an argument from the plaintiff that her termination was the last event creating a FMLA violation. [18] The court reasoned the plaintiff’s argument that there can be more than last event under § 2617 (c) (1) was not supported by the statutory language.[19] Further, nothing in § 2617 (c) (1) supports an open-ended tolling rule holding the statute of limitations indefinitely.[20] The court acknowledged that forcing a plaintiff to file in litigation for every contested absence that may only result in minor discipline is not practical for many plaintiffs.[21] The court briefly mentioned the Secretary of Labor’s power to investigate FMLA complaints and suggested Congress may have considered these complaints be adjudicated by a federal agency as opposed to a federal court.[22]

Sixth Circuit Decision

In Butler, the employee worked for Owens-Brockway, a plastics products company, and was terminated for accumulating twelve points in a year and half under the company absentee policy.[23] Under this company policy, a worker who accumulated twelve points in a year could be terminated.[24] The employee was warned that she was placed on sixth month probation after her twelfth point accumulated.[25] That same day, she called in sick and was terminated.[26] The employee alleged that three of those absences were protected by the FMLA resulting in a violation of the statute.[27] The employer argued the statute of limitations should be based on the absences in the plaintiff’s employment record since termination occurs as a result of the absences accumulating. [28] The court ruled against the employer, and held that the “Plaintiff’s termination was the first material adverse action in this case, because it was the first action serious enough to warrant plaintiff’s resort to the legal system”.[29] If the alternative were true, then plaintiff would be forced to file suit after every contested absence in the record.[30] This interpretation would flood the legal system with litigation.[31]

Analysis

The Sixth Circuit opinion policy rationale is intuitive. Interpreting the statute of limitations to run after one employee absence will flood the courts with premature claims.  However, the Seventh Circuit decision may actually decrease the amount of future claims. The plaintiff in the Seventh Circuit decision noted the impracticality of contesting every possible FMLA violation. [32] Potential plaintiffs are almost certainly short of money and time to devote to a lawsuit. Requiring plaintiffs to contest every one of their disputed absences in order to receive relief from the FMLA would discourage plaintiffs from seeking the protection of FMLA. In turn, this interpretation could embolden employers to violate the statute, confident that few people would be willing to litigate multiple challenges to contested absences. In contrast, a statute that allows employees to sue after their termination is a fair compromise because it is a significant event worth the effort of litigation. This puts the employee in the best position to sue for FMLA violations.

The Seventh Circuit position that FMLA violations were meant to be investigated by federal agencies as opposed to litigation is not a compelling position.[33] It is the most logical interpretation looking at the plain language of the statue.[34] Yet, it does not make sense that Congress would create a civil right of action not intending it to be used along the Secretary of Labor’s power to investigate violations. It seems unlikely Congress would create a toothless civil action if it wanted FMLA violations to be exclusively investigated and resolved by a federal agency. This interpretation promotes the application of the Sixth Circuit’s holding, however, just because the Sixth Circuits reasoning makes the most sense does not make it legally valid.

While the policy of the Sixth Circuit makes sense, unfortunately this ruling is not grounded in law. The Sixth Circuit does not use the text of the FMLA statute at all in making its determination. The court reached its decision because it reasoned an employee’s termination is the first action serious enough to warrant a lawsuit by the plaintiff. The Court decided this would lead to the federal courts being flooded with FMLA litigation because plaintiffs would be forced to bring lawsuits whenever a negative mark is assessed on an employee’s absence record. The court simply reaches an interpretation it feels makes the most sense for the statute. By not analyzing the statute, the court substitutes its own judgement in interpreting the statute instead of attempting to determine what the legislature intended. Undoubtedly, judges will have to make tough decisions when interpreting statutes. These decisions should be made by attempting to make some sort of statutory interpretation however. Otherwise, judges simply pontificate their views from the bench. For example, the Seventh Circuit notes in a footnote how unhelpful it found the Sixth Circuit decision because its reasoning was not based upon a reading of the statute. [35]

Congress should amend the FMLA statute in order to reflect the policy of the Sixth Circuit decision. “Except as provided in paragraph (2), an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” The statute’s language does not allow for more than one last event.^[36] The statute requires a plaintiff to file suit after a particular event.[37] The statute does not give the plaintiff an option to sue after an absence in the record but then give them another opportunity to do so when the plaintiff is fired.[38] Nor does the statute support an interpretation of an indefinite statute of limitations.[39] Therefore, the Supreme Court’s best option would be to resolve the split in the direction of the Seventh Circuit. Congress has the power to amend the law to resolve this circuit split and improve the law for future plaintiffs. No longer will plaintiffs be penalized for their lack of resources or inability to devote time to a lawsuit regarding a disputed disciplinary record.

Conclusion

In conclusion, the Seventh Circuit decision reached the appropriate decision based on a proper understanding standing of the law and the statutory text. The Sixth Circuit decision, while inserting its own rationale as opposed to attempting to determine what the statute actually meant, has the appropriate policy considerations in place. Congress should amend the FMLA to allow plaintiffs to bring their FMLA claims after termination of employment as opposed to when the FMLA violation took place. This amendment will improve access to future plaintiffs while also ensuring employers are able to better judge the risk of litigation.

[1] See 29 USCA § 2601.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Barrett v. Illinois Dept. of Corrections, 803 F.3d 893, 897 (7^th Cir. 2015).

[7] Butler v. Owens-Brockway Plastics Products, 199 F.3d 314, (6^th Cir. 1999).

[8] Barrett, 803 F.3d at 897.

[9] Id.

[10] Id.

[11] See Barrett, 803 F.3d at 896

[12] See id.

[13] 29 U.S.C § 2617 (c) (1).

[14] Id. at 897.

[15] Id.

[16] Id.

[17] Id.

[18] Barrett, 803 F.3d at 899.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Butler, 199 F.3d at 315.

[24] Id.

[25] Id.

[26] Id. at 316.

[27] Butler, 199 F.3d at 316.

[28] Id. at 317.

[29] Id.

[30] Id.

[31] Id.

[32] Barrett, 803 F.3d at 899.

[33] Id.

[34] Barrett, 803 F.3d at 897.

[35] To be fair, the 7^th Circuit Court also criticizes the 8^th Circuit for a “thinly reasoned” opinion even though the 7^th Circuit reached the same conclusion as the eighth. Barrett, 803 F.3d at 896 n.1.

^[36] Barrett, 803 F.3d at 897.

[37] See id. at 899

[38] See id.

[39] See id.  at 897.

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review

On December 22, 2016, the Sixth Circuit Court of Appeals held that a police officer’s killing of two dogs was reasonable, denying the Plaintiff’s Fourth Amendment unreasonable seizure claim.[1] The public outrage was swift and severe; many reported on the topic stating something akin to “police can kill your dog for merely barking.”[2] Although the headlines do not quite capture the facts in Brown v. Battle Creek Police Department, they do highlight the problem facing police departments and courts in a nation where thirty-six percent of households have pet dogs.[3] In one instance where the public perceived the killing of a dog as unreasonable, the “self-described activist” group Anonymous[4] retaliated against the police department responsible for killing the dog.[5]

Primarily fueling the public outrage is the assertion by police departments and later the determination by courts that the killings are reasonable.[6] Indeed, the legal analysis of a police officer killing a dog centers on the reasonableness of the officer’s actions under the circumstances. This analysis flows from a Fourth Amendment claim of unreasonable seizure, as well as the officer’s primary defense of qualified immunity.[7] Although it is often reasonable for an officer to kill a dog under the circumstances, in the case of Brown v. Battle Creek Police Department,[8] the Court unfairly ignores critical facts showing that the killing of at least one of the dogs unreasonable. Continue reading →