Monthly Archives: July 2017

Email Boilerplate as Notice under Rule 26(b)(5)(B)

Meg Franklin, Associate Member, University of Cincinnati Law Review

In Harleysville Ins. Co. v. Holding Funeral Home, an electronic confidentiality notice was not strong enough to protect attorney-client privilege.[1] The court held that the attorney-client privilege was effectively waived because counsel failed to take “reasonable steps to prevent [the privileged information’s] disclosure or to rectify the situation.”[2] Yet, the opposing counsel’s use of the privileged information resulted in court sanctions.[3] The court found that the defense counsel had acted contrary to rules of ethics and civil procedure.[4] Most notably, a confidentiality notice contained in an email served as notice under Fed. R. Civ. P. 26(b)(5)(B).[5] This holding, while effectively punishing the defense counsel’s unethical behavior, is contrary to general understanding of Rule 26(b)(5)(B). Continue reading


The Protestor Plow: A Legislative Attempt

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

Material Falsehoods and Denaturalization  


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