Monthly Archives: January 2017

Sanctuary Cities and the Fight against the New Administration

 

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

In the days after the 2016 election, there was a wide divergence among Americans. A clear divide ensued between those who were satisfied with the elections and those who were in fear of what the next four years meant for their safety, their protection, and the future of their rights. In the following days, thousands of Americans expressed their concern over the promises made from the Trump/Pence campaign.[1] The Latino community voiced concerns over the promises made by President Trump to immediately deport millions of immigrants, build a wall, and his intention to dispose of President Obama’s executive orders on deferred action as soon as he takes the oath of office.[2] In response to this fear, several cities across the nation have declared or reaffirmed their status as “sanctuary cities” and as safe havens to undocumented immigrants in the coming months.[3] Continue reading

CHINA SEEKS MARKET ECONOMY STATUS WHEN SECTION 15 OF ITS PROTOCOL OF ACCESSION INTO THE WORLD TRADE ORGANIZATION EXPIRES ON DECEMBER 11, 2016

Author: Ryan Kenny, Associate Member, University of Cincinnati Law Review

On December 11, 2001, China formally joined the World Trade Organization (WTO).[1] The WTO develops policies aimed at promoting global integration of member-states’ economies.[2] When China was inducted into the WTO, §15 of China’s Protocol of Accession (POA §15) allowed WTO members to designate China a non-market economy (NME). NME status allows WTO members to assess the true cost of production in China by using any fair method, rather than just the nominal price of production in the Chinese market.[3] These methods are used to determine countervailing duties (CVD) and anti-dumping laws (AD) for imports from China. With the POA §15’s expiration on December 11, 2016, the debate is whether its expiration automatically grants China market-economy status (MES), or whether national law makes such a determination. POA §15’s expiration does not grant China automatic MES status, and the United States is unlikely to grant China MES at the end of

I. Legal Framework Surrounding China’s MES.

China argues that the POA it signed in 2001 will grant it immediate MES after its expiration. Mei Xinyu, a researcher with China’s Ministry of Commerce, said, “[POA §15] is very clear and it’s unconditional” to this effect.[4]  However, there is no language in the POA that suggests that MES is automatic upon the expiration of the clause. Rather, each WTO member nation will determine individually whether or not China has liberalized its economy enough to earn MES. Continue reading

Institutional Activist Investors: The “House Flip” of Corporate Governance

Meg Franklin, Associate Member, University of Cincinnati Law Review

Similar to a handyman homebuyer who purchases a house in order to make a profit on improvements made to the house, institutional activist funds “flip” a corporation in order to provide a profit to shareholders.  These institutional activist investors use ownership of shares to affect change in management.[1]  Once the corporation has increased in value, activist funds pressure a board into selling so that the owners can realize the profit.  Opponents of institutional activist investors believe this short term strategy sacrifices long term corporate stability.[2]  Yet, proponents believe institutions carry more knowledge than individual investors which enables them to steer corporations away from profit-reducing decisions.[3] Engaged Capital, an activist fund currently targeting SunOpta, provides an excellent example of strategic institutional activist investment and exemplifies the overall investment trend. .[4]  While time will tell whether Engaged Capital will impact positive change in SunOpta, Engaged Capital holds itself out to be a fair investor looking to improve the business from within. Continue reading

Observe, Record, and Report: Fighting Police Misconduct in the Technological Age

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

The advancement of technology serves many beneficial purposes, but it also raises constitutional issues not before considered. Recording public officials, specifically police officers, is increasingly becoming a tool for individuals who have been pulled over, engage in civil disobedience, or witness an interaction between a civilian and an officer to draw attention to police misconduct and excessive force. Facebook now also allows a Live[1] feature. Moreover, as the focus on race and policing in America continues to be discussed, the question of whether recording public officials is a right guaranteed by the First Amendment requires an answer now more than ever. The Supreme Court has never ruled on this question, but several circuit courts have considered it. Most of the circuit courts have ruled that there is a First Amendment right to record public officials, specifically on matters of public interest.[2] While other courts have declined to hold a First Amendment right was “clearly established” at that time in their circuits, no circuit court has ever rejected the complete existence of the right.[3] However, in a recent decision, a district court in the Third Circuit has placed a significant limitation on that right.[4] There is an urgent need for all the circuit courts to recognize that individuals have a First Amendment right to record public officials. Otherwise, the Supreme Court will be obliged to step in and officially recognize the right to record public officials as a protection under the First Amendment. Continue reading

The Defendant’s Right to a Jury Determination on Criminal Forfeiture

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

In the minds of most, lawyers and lay people alike, the culmination of a criminal trial is when the jury reaches its verdict. What follows a jury’s announcement of ‘guilty’ or ‘not guilty’ is viewed as procedural formalities that merely finalize the verdict. However, in cases where a jury has returned a guilty verdict, there is often one more procedural step that could play a large role in a defendant’s life. In criminal cases that go to trial, the Government may seek to deprive a defendant of the “fruits” of his criminal labor by seeking criminal forfeiture of property created or gained through the criminal activity.[1] If the defendant is found guilty by the jury, and the Government has complied with the relevant statutes and procedures to state its intent to seek criminal forfeiture, there will be a determination on whether the court should order the forfeiture.[2]

Although there is no constitutional right to a jury determination on the issue of forfeitability,[3] the Federal Rules of Criminal Procedure provides parties such a right through Rule 32.2(b)(5)(A), stating that, “the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.”[4] Once it has been established that the jury will be retained, the jury will then determine whether the Government has established the required nexus between the offense the defendant committed and the property the Government seeks to seize.[5]

Although the rule places an affirmative duty on courts, most courts hold that the burden rests on the defendant to affirmatively request a jury determination, or waive the right altogether. Some courts have suggested that they find that the rule places an affirmative duty on the court–however, there is unfortunately no precedent that firmly states so. Due to this, the majority of courts wrongfully ignore the duty the rule places on them. Continue reading