Monthly Archives: April 2015

The “Blurred Lines” of Copyright Scope

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

On March 10, 2015, a federal jury found that Robin Thicke and Pharrell Williams infringed a copyright owned by the heirs of Marvin Gaye, by copying substantially from Gaye’s song “Got to Give It Up” when they created their 2013 hit “Blurred Lines.”[1] While other recent copyright disputes involving major recording artists have settled without either party ever filing suit, the battle between the “Blurred Lines” writers and Gaye’s heirs was particularly contentious, all the way up to the uncertain ending.[2] While the heirs have ultimately triumphed (assuming Thicke and Williams do not appeal), a pre-trial decision by the presiding judge to limit the scope of their copyright to a set of written sheet music, rather than the song’s recording, easily could have derailed their case and led to the opposite outcome. Despite the judge’s effort to apply the correct, albeit antiquated, law to the issue, extending the copyright protection to the recording would have been an appropriate, legally supported decision that would have sent a clear message to would-be infringers, and likely would have resulted in an earlier resolution of the case.

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Three Strikes and (Maybe) You’re Out: Coleman v. Tollefson

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

The adage borrowed from baseball, “three strikes and you’re out,” is used in law in different contexts. Many states have enacted “three-strikes” laws to punish repeat offenders: under these laws, a criminal receives a much longer sentence on his third conviction.[1] Another example is found in the Prison Litigation Reform Act (PLRA), under which inmates are prohibited from receiving in forma pauperis[2] status if they have brought three or more civil claims seeking in forma pauperis status that were dismissed.[3] Thus, in the baseball context, a PLRA dismissal is considered a “strike,” and the denial of pauper status is the “out.” However, the analogy is problematic in the legal context. Unlike in baseball, where the umpire’s decision to call a strike is unreviewable, a party in court can appeal the lower court’s decision. This hiccup in the baseball analogy is the question that was argued on February 24, 2015 in front of the Supreme Court in the case of Coleman-Bey v. Tollefson. The question was whether, under the “three strikes” provision of the PLRA, a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.

In this case, the Sixth Circuit Court of Appeals issued a ruling contrary to the majority of its sister circuits. The Sixth Circuit held that a dismissal of a PLRA civil suit, while on appeal, counts as a third strike under the PLRA, and therefore precluded Coleman-Bey from receiving pauper status on his fourth PLRA claim during the pendency of the appeal of the third claim. The Sixth Circuit’s holding should be rejected by the Supreme Court because dismissals should only count as strikes under the PLRA when the plaintiff has exhausted or waived his appellate rights. This is the better, nondiscriminatory ruling, especially in light of the relatively small burden that pauper status places on the courts and Congress’s intent with the PLRA to penalize frivolous litigation, not freeze out meritorious claims.

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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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