Monthly Archives: August 2017

Judicial Barriers: Why the Supreme Court Should Not Impose an Additional Requirement on Rule 24 Intervenors

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

The Federal Rules of Civil Procedures were enacted to “secure the just, speedy, and inexpensive determination of every action and proceeding.”[1] Pursuant to these rules, the federal courts possess a duty to exercise authority in a way that all cases will be resolved fairly. Unfortunately, rules that are ambiguous or not clearly defined can be interpreted in many different ways by these courts, causing confusion and variations of legal standards. When this occurs, it is the duty of the Supreme Court to resolve these issues and allay any doubt about what rule, standard, or interpretation governs.

The Supreme Court recently granted certiorari in a land dispute case to answer the underlying question of what the proper standard is for a party moving to intervene in a case.[2] The District Court held that the moving party could not intervene because it lacked proper Article III standing under the United States Constitution.[3] However, the Second Circuit overturned the District Court’s decision, holding that “there is no need to impose the standing requirement upon a proposed intervenor where the existence of a case of controversy has been established in the underlying litigation.”[4] In so ruling, the Second Circuit joined six other circuits in interpreting the Federal Rules to not require Article III standing. However, three other circuit courts have consistently held that Article III standing is required and will deny a moving party the right to intervene if it cannot show it possesses standing. It is this type of unjust and unfair outcomes that the Federal Rules were enacted to prevent. Granting certiorari in Laroe Estates, Inc. v. Town of Chester, the Supreme Court will soon have a chance to remedy the confusion among the courts. Continue reading

Who is a Whistleblower?

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

The 2008 financial crisis was a defining moment in American history as millions of people lost their jobs and wages stagnated. The 2008 financial crisis may well have been the catalyst for the election of President Obama in 2008. In response to the devastation of the financial crisis, Congress passed the Dodd Frank Act to reform the financial regulatory system.[1] One component of this comprehensive of legislation was protection to whistleblowers who reported violations of U.S. securities laws to the Securities and Exchange Commission (SEC).[2] “The term “whistleblower” means any individual who provides, or [two] or more individuals acting jointly who provide information relating to a violation of securities laws to the [Securities and Exchange] Commission . . . .”[3] The Fifth and Second Circuits have recently confronted whether an individual who is not a whistleblower under the statutory definition of the term is entitled to protection from the relevant section. The Fifth Circuit held a “whistleblower” who is not reporting a SEC violation is not entitled to this protection.[4] However, the Second Circuit ruled a whistleblower reporting non-SEC violations may seek protection under this statutory provision.[5] The Fifth Circuit’s approach is the correct one because it applied the plain meaning of the statute and avoids breaching the essential principles of the separation of powers.  Continue reading

Outlook and Gmail Encounter the SCA

Meg Franklin, Associate Member, University of Cincinnati Law Review

Under the Stored Communications Privacy Act (“SCA”), the government may only obtain electronic communication through a lawful search warrant.[1]  Yet, two recent cases illustrate the weakness of the SCA.  When the SCA was passed in 1986, it specifically addressed technology that existed at the time.  However, as the cases illustrate, its application can lead to absurd results in today’s era of global digital communications.  Since the SCA can only govern search warrants within the United States, the absurdity results from determining whether the data is stored and transmitted domestically or extra-territorially. The distinction can be absurd because modern-day electronic communication companies have many options when structuring their data storage practices. Yet, under the current interpretation of the SCA, these business decisions may conclusively determine the SCA’s application. Continue reading