Conflict of Laws and Property Rights in the Age of “Semi-Legal” Same-Sex Marriages

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

In the United States federalist system, fifty different states often arrive at fifty different conclusions of law that can conflict not only with each other but also with federal law. The Supremacy Clause usually allows for the resolution of the latter conflicts, whereas conflicts among the laws of different states are less easily resolved.  That is epitomized in the split between states that recognize same-sex marriages and those that do not. Although many have celebrated the recent abrogation of the Defense of Marriage Act (DOMA) in United States v. Windsor, the decision does not foreclose further conflicts over the treatment of same-sex marriages, whether between the federal government and the states, or among the states themselves.[1] These conflicts are particularly complex in the context of property rights in same-sex marriages. In light of conflict of law jurisprudence, there is pronounced confusion about how states that do not recognize same-sex marriages may treat those couples in cases of death and the disposition of property.

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Part II: JobsOhio- Why the Ohio Supreme Court Should Not Abandon the Sheward Public-Right Exception

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

On November 6, the Supreme Court of Ohio heard oral arguments in the case of ProgressOhio.org, Inc. v. JobsOhio.[1] With this case, the Supreme Court of Ohio has the opportunity to reinforce or abandon the public right exception to standing. Although some people think the public-right exception should be abandoned, the exception acts as a safeguard for Ohioans. Without the public right exception, legislative acts that fundamentally alter the structure of the state government could go unchallenged; such is the case with JobsOhio.

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Part I: JobsOhio- The End of Sheward and the Public-Right Exception to Standing?

Author: Chris Tieke, Contributing Member, University of Cincinnati Law Review

ProgressOhio.org, Inc. et al. v. JobsOhio et al.:  Ohio Supreme Court to address the public right exception to standing

On November 6 the Supreme Court of Ohio heard oral arguments in the case of ProgressOhio.org, Inc. v. JobsOhio.[1]  In general, this case is about the extent and scope of the public-right exception to the standing doctrine in the state of Ohio.  The issue in this case is whether ProgressOhio.org, a 501(c)(4) organization, consisting of 350,000 members, and certain members of the Ohio General Assembly have standing to bring a constitutional challenge to the JobsOhio Act.  In particular, ProgressOhio claims that the General Assembly, in passing the JobsOhio Act, created an unconstitutionally chartered corporation (JobsOhio) that will spend government revenues secretly and without any accountability.[2]  In addition, ProgressOhio alleges that the JobsOhio Act itself violates the Ohio Constitution.  This case presents the Ohio Supreme Court with the opportunity to clarify the nature of the public-right exception to standing. 

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Cracking Windsor’s Code: The Unusual Judicial Review Standard of United States v. Windsor and Its Potential Impact on Future Plaintiffs

Author: Colin P. Pool, Publications Editor, University of Cincinnati Law Review

The Supreme Court’s opinion in U.S. v. Windsor, [1] which struck down Section 3 of the Defense of Marriage Act (DOMA), has been criticized by many for a perceived “lack of clarity,”[2] or a lack of “parameters, . . . objective analysis, [or] guidance as to how to apply [it].”[3] These shortsighted characterizations misread Windsor. In fact, the Court’s analysis is based on long-established, if somewhat antiquated, equal protection jurisprudence: “careful consideration” triggered by the “unusual character” of a statute. With this standard’s reemergence, the possibility arises that future equal protection plaintiffs may be able to take advantage of it.

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A Cap on Trust: The Ohio General Assembly Should Trust Ohioans to Make Tough Decisions

Author: Melissa Schuett, Associate Member, University of Cincinnati Law Review

Since the infamous “McDonald’s hot coffee” case in 1994,[1] tort reform legislation has led to the imposition of caps on damages in civil actions in many states across the country, including Ohio.  These caps require judges to disregard any amount a jury awards that is over the statutorily imposed limit. The purpose of this oversight is to avoid frivolous lawsuits and emotionally-driven plaintiff verdicts.  But the question remains whether this distrust of a jury’s ability to separate fact from emotion is inherently contradictory to state statutes that require a jury to decide whether to sentence a criminal defendant to death. Assuming the validity of tort reform, Ohio’s implementation of hard damage caps in civil cases creates an inconsistency with the trust afforded juries in criminal proceedings. This statutory contradiction in trust should be resolved by affording the same level of trust to Ohio civil juries as Ohio does to criminal juries; the General Assembly’s placement of stronger restraints on civil juries is contrary to the principals set forth in the Sixth Amendment, which places the greatest protection of a defendant in the purview of the jury.

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Ducking Duties: Pseudonymous Plaintiffs and the Supreme Court of Ohio

Author: Ryan Shiverdecker, Associate Member, University of Cincinnati Law Review
On March 19, 2013, in Doe v. Bruner, an Ohio appeals court denied the plaintiff, an alleged victim of sexual assault and molestation, his request to proceed anonymously.[i] After initially accepting the plaintiff’s appeal, the Supreme Court of Ohio dismissed the case as being improvidently granted, balking on an opportunity to provide clarity in an area of law that is murky and unsettled.[ii] Jurisdictions are split on the requirements that an individual must satisfy in order to proceed anonymously. The Supreme Court’s failure to take this case and create a legal standard will result in more disparate holdings in Ohio cases dealing with pseudonymous plaintiffs. The court should have adopted a factor-based test that effectively balances the plaintiff’s privacy rights with the presumption of open judicial proceedings.

A Mess for Hess: Why the Oil and Gas Giant may lose more than 300 gas leases in the Utica Shale Region

Author: Bradley Dunkle, Associate Member, University of Cincinnati Law Review

Oil and gas giant Hess Corporation may have a sticky situation on its hands following a federal court decision from September 24, 2013.  The Southern District of Ohio ruled that two gas leases held by the energy giant lapsed after Hess failed to drill on the property.[1]   Now as many as 300 similar leases held by Hess could be affected in the same manner.[2] Although multiple issues were presented for summary judgment in the case, the main dispute involved the “delay rental” provisions of the leases. Because the court correctly construed the “delay rental” provisions in a way that did not needlessly restrict the alienability of these leases and others like them, landowners in western Ohio will be able to take advantage of the area’s burgeoning natural gas industry.

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The New Batson Challenge: Extending the Protections of Batson v. Kentucky to Gays and Lesbians

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

A contract dispute between two manufacturers of an AIDS drug has presented the opportunity for federal courts to protect gays and lesbians from being struck from juries because of their sexual orientation. Last month a panel for the Ninth Circuit Court of Appeals heard oral arguments in a lawsuit by SmithKline Beecham Corporation against Abbott Laboratories[1] and will soon decide whether to expand the protections of the Supreme Court decision in Batson v. Kentucky[2] to include gay and lesbian venire persons. Extending Batson in this way would advance federal jurisprudence following the Supreme Court’s decision in United States v. Windsor,[3] and also would presage another crucial Supreme Court battle over constitutional protections for gays and lesbians in the United States.

The present controversy began when SmithKline sued Abbott, alleging violations of the Sherman Antitrust Act, deceptive trade practices, and monopolization over Abbott’s manufacture of an important antiretroviral drug, Norvir.[4] However, the most controversial issue in this case arose before the trial even began, when Abbott’s attorney used a peremptory challenge to strike a gay man from the jury pool after the man spoke about his partner.[5] Following a brief trial, the jury rendered a verdict for SmithKline for nearly $3.5 million. Abbott appealed from the judgment. In response, SmithKline instituted a cross-appeal against Abbott, requesting a new trial because the district court judge allowed Abbott’s attorney to strike the gay juror over SmithKline’s challenge to the strike under Batson.[6]

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Here We Go Again: Another Secret Government Program Chips Away at the Fourth Amendment

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

Thanks to Edward Snowden, Americans learned that the National Security Administration was storing call records from the major phone networks to help fight the war on terrorism. Just three months after the NSA information was leaked, Americans learned of yet another government program after a PowerPoint about the program was leaked. This program, entitled “Hemisphere,” focuses on recording and searching domestic conversations between American citizens in order to help fight the war on drugs.

The Hemisphere database is even more extensive than the one used by the NSA and is yet another example of how the government is chipping away at the rights guaranteed by the Fourth Amendment.

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Liability for Texting a Driver?

Author: Chris Tieke, Contributing Member, University of Cincinnati Law Review

Kubert v. Best: New Jersey creates a new duty for a person sending a text to the driver of a vehicle.

Many states already make it illegal to text message while driving.[1]  However, in August a New Jersey court of appeals took an additional, drastic step to curb the dangers of texting and driving.   In the case of Kubert v. Best, the court held that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the text sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”[2]  Although the intent of the court to address the prevalent danger of texting and driving is laudable, the decision is far from clear regarding the burden of proof a plaintiff carries going forward.  Additionally, the standard established by the court is difficult, if not impossible, to prove.  Despite the confusion in this decision, it would not be surprising to see courts in other states create liability for those who text a person whom they know is driving a motor vehicle.

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