Will The Real Captain Marvel Please Stand Up?

Ian McManus, Associate, University of Cincinnati Law Review

Later tonight, March 7th, 2019, fans of the Marvel Cinematic Universe will be introduced to one of Marvel’s most incredible cosmic superheroes – Captain Marvel! While Captain Marvel is noteworthy as being the first female-led Marvel movie (I refuse to count Elektra) it is not actually the first movie to star a superhero named Captain Marvel. Back in 1941, Republic Pictures produced a live-action movie serial entitled Adventures of Captain Marvel that featured a distinctly different character named Captain Marvel.[1] In fact, the copyright to that version of Captain Marvel is owned by DC Comics and he will also be getting his own movie this year, on April 5th, entitled Shazam!

How did we get to the point where we have two different Captain Marvels, owned by two different companies, getting their own movies in the same year? Why is Marvel allowed to title their movie Captain Marvel while DC must use the title Shazam!? The answers to these questions will be revealed through the following explanation of the copyright and trademark history surrounding the two versions of Captain Marvel.

Superman v. Captain Marvel in a Copyright Battle for the Ages!

The original Captain Marvel was a character published in 1939 by the, now defunct, Fawcett Comics. This Captain’s civilian identity was Billy Batson, a young orphan whose pure heart remained untainted by the horrible tragedies he had experienced in life. After being guided to a mystical subway car, Billy was taken to the Rock of Eternity and found worthy of receiving incredible powers from the wizard Shazam. By shouting the wizard’s name Billy could transform into an adult superhero who wielded the awesome power of the Greek Gods! Affectionately referred to as “The Big Red Cheese”, Captain Marvel would become America’s most popular superhero during the 1940s, surpassing even Superman and Batman in sales.[2]

Unfortunately for Billy, his good luck would run out. Almost immediately after Fawcett began publishing Captain Marvel stories, DC sued Fawcett for infringement of DC’s copyright to the Superman character.[3] DC likely felt good about their chances in court; after all, they had recently won a similar copyright infringement suit against Brun Publications over Brun’s superhero Wonderman.[4] In Detective Comics, Inc. v. Bruns Publications, Inc., the Second Circuit found that the archetype of a “‘Superman’ who is a blessing to mankind” was not protectable by copyright, but the particular expression of that archetype that Superman represented was protectable.[5] Since the Wonderman character shared many of the same expressions as Superman – both characters concealed their costumes under ordinary clothing, showed similar feats of strength, and leaped tall buildings in a single bound – the Second Circuit found that Wonderman infringed upon DC’s Superman copyright.[6]

Considering that Captain Marvel also had a similar look and powerset to Superman, it was unsurprising that DC relied on the Bruns case in their infringement claim against Fawcett. In National Comics Publications, Inc. v. Fawcett Comics, DC argued that Captain Marvel was infringing on their Superman copyright just as Wonderman had.[7] Both Superman and Captain Marvel had essentially the same powers, civilian identities as reporters, and costumes based on gymnast or acrobat uniforms.[8] Based on these similarities, the Second Circuit found that Captain Marvel infringed on DC’s copyright and, instead of pursuing the matter further, Fawcett decided to settle with DC in 1954.[9]

So, what became of Fawcett and Billy Batson after their losing day in court? As a part of the settlement with DC, Fawcett discontinued their superhero comics line and paid $400,000 to DC.[10] They would never publish superhero comics again. While the Captain’s golden age was over, DC was not done with the Big Red Cheese. Always on the lookout for colorful new characters, DC solicited Fawcett to license Captain Marvel in the 1960s.[11] As a result, Captain Marvel re-entered the world of comics in 1973 under the creative control of DC Comics.[12] On the cover of the first issue of his new series, Captain Marvel was reintroduced to the world by nonother than Superman himself.

As Billy Batson fades from the Spotlight, DC’s greatest comic-book rival emerges!

While DC had ultimately won the copyright battle against Captain Marvel, their lawsuit against Fawcett had unintended consequences. While Fawcett had initially trademarked the name Captain Marvel, it had abandoned the trademark after settling with DC.[13] With a trademark as tempting as the Captain Marvel name up for grabs, it was only a matter of time before it was claimed by the competition.

Enter DC’s long-standing rival – Marvel Comics! Interested in obtaining the rights to all things “Marvel”, Marvel would register the Captain Marvel trademark in the 1960s.[14] Motivated to secure their Captain Marvel trademark, Marvel’s publishers tasked Stan Lee to create his own version of Captain Marvel.[15] Thus “Marvel’s Space-Born Super-Hero” stormed comic stands everywhere in 1967! Captain Mar-Vell was an officer of the Kree Empire, a race of militaristic aliens, who was sent to observe humanity in order to determine if they could threaten the Kree Empire. Defecting from the Kree and siding with Earth, Mar-Vell became known as the hero Captain Marvel!

Since Marvel had trademarked the Captain Marvel name and protected their trademark by publishing comics about Mar-Vell in 1967, DC could not use the name in marketing the original Captain Marvel in 1973.[16] DC initially tried to title their licensed Captain Marvel book as Shazam! The Original Captain Marvel but relented after a Marvel cease and desist.[17] DC would ultimately resign themselves to titling the book Shazam! Earth’s Mightiest Mortal.[18] DC was still able to refer to the character as Captain Marvel in the panels of the comic but had to use the Shazam! name for the title.[19] DC continued this trend for decades until DC decided to simplify things in 2013 by renaming Billy’s alter-ego Shazam.[20] While it is still not known if the Shazam! movie will reference the character’s Captain Marvel roots, it is more than likely that the movie will mirror the comics and scrap the name altogether.

Conclusion: Marvel stands victorious as DC concedes the Captain Marvel name! How they plan on using their Trademark going forward!

Marvel’s acquirement of the Captain Marvel trademark has rewarded them significantly in recent years. While the character of Mar-Vell never achieved the same mass-popularity as Marvel characters like Spiderman or the X-Men, his successor has become one of Marvel’s most valuable characters. Originally created in 1968, Carol Danvers was an air-force pilot and confidant to Mar-Vell. In 1977, Marvel gave her a solo series in which she gained powers identical to Mar-Vell’s and the name Ms. Marvel. Danvers would remain a staple of the Marvel Universe for decades and has been a member of the Avengers, X-Men, Guardians of the Galaxy, and even Alpha Flight (think Canadian Avengers). Her character reached new heights of popularity in 2012 when she adopted the name Captain Marvel to honor the then deceased Mar-Vell. Her 2012 solo series received critical acclaim and provides the clear inspiration for the Captain Marvel movie.

Of course, Disney and Marvel know a financial opportunity when they see one and has recently been busy trademarking the Captain Marvel name for dozens of new categories.[21] To name a few, Marvel has trademarked the Captain Marvel name under the categories of clothing, glassware, lunchboxes, Christmas stockings, and even fanny packs![22] Clearly, Disney and Marvel are preparing these trademarks in anticipation of all the lucrative merchandise they can sell based on their upcoming film. As they rake in their Captain Marvel money, I wonder if the people at Disney and Marvel will stop for a moment to appreciate that it would not have been possible but-for a lawsuit initiated by their greatest competitor.

[1] Adventures of Captain Marvel (Republic Pictures 1941).

[2] Joe Sergi, The Law for Comic Book Creators: Essential Concepts and Applications 46 (2015)

[3] Id. at 46.

[4] Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2nd Cir. 1940).

[5] Id. at 434.

[6] Id. 433.

[7] Nat’l Comics Publs., Inc. v. Fawcett Publs., Inc., 93 F. Supp. 349 (S.D.N.Y., 1950).

[8] Id. at 355-356.  

[9] Nat’l Comics Publs., Inc. v. Fawcett Publis., Inc., 191 F.2d 594 at 603 (2nd Cir. 1951); Sergi, Supra note 2, at 52.

[10] Sergi, Supra note 2, at 52.

[11] Id. at 53

[12] Jay Seragino, The Litigious History of DC and Marvel’s Rival Captain Marvel Characters, (last visited Feb. 17, 2019) http://mentalfloss.com/article/542404/litigious-history-dc-and-marvel-rival-captain-marvel-characters.

[13] Sergi, Supra note 2, at 53.

[14] Id.

[15] Seragino, supra note 12.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Rich Johnston, Marvel Comics Register a Ton of Captain Marvel Trademarks, https://www.bleedingcool.com/2018/05/03/marvel-comics-register-a-ton-of-captain-marvel-trademarks/ (last visited Feb. 17, 2019).

[22] Id.

Ninth Circuit Upholds the Standard for Use of Terrorist-Related Information Among Law Enforcement Agencies

Emily Westerfield, Associate Member, University of Cincinnati Law Review

On January 29, 2019, the Ninth Circuit upheld the federal standard used to govern the collection and circulation of terrorist-related information—known as Suspicious Activity Reports (SRIs)—among federal, state, and local law enforcement agencies.[1] Functional Standard 1.5.5, the third revision to the standard since 2008, originated with the National Strategy for Information issued by President George W. Bush in 2007 to establish a set of requirements for the sharing of SARs among varying levels of law enforcement within what is known as the Information Sharing Environment (ISE).[2] The method of evaluating and sharing the information among law enforcement is known as the Nationwide Suspicious Activity Reporting Initiative.[3]

According to Functional Standard 1.5.5, any “observed behavior reasonably indicative of pre-operational planning associated with terrorism or other criminal activity” constitutes “suspicious activity.”[4] Once a law enforcement officer creates a SAR after receiving a report of suspicious activity, an analyst evaluates the SAR by taking it through a two-prong test.[5] If the analyst determines that the SAR (1) falls into one of the sixteen behavioral categories which has been specified as “suspicious activity” under the Functional Standard and (2) has a “potential nexus to terrorism,” the SAR becomes an ISE-SAR.[6] At that point, the SAR is made available to all law enforcement agencies within the NSI, the FBI classified system, and the Department of Homeland Security Office of Intelligence.[7]

            In Gill v. United States DOJ, five United States citizens, all of whom were the subjects of an SAR or ISE-SAR but not yet charged with a crime on that basis, brought suit against the Department of Justice, the Attorney General, and the Program Manager of the ISE based on the argument that Functional Standard 1.5.5 violated the Administrative Procedure Act (APA).[8] The “suspicious activity” described in the reports include potential access to a flight-simulation video game, converting to Islam, studying the exit and entry points in a train station, an attempt to purchase a “large amount of computers,” and photographing a work of public art.[9] The court noted that three of the plaintiffs became aware that they had SARs when they were either personally questioned by the FBI or discovered that a family member or neighbor was questioned by the FBI in relation to the behavior reported in the SAR.[10]

            The plaintiffs challenged the Functional Standard on two grounds, arguing that the Functional Standard was unlawful because (1) it was established without the notice and comment procedure required for the passage of legislative rules by the APA and (2) it failed to rise to the “reasonable suspicion” standard required for the dispersement of criminal intelligence information under 28 C.F.R. §23.20.[11] The Ninth Circuit rejected the first argument based on the reasoning that the Functional Standard serves as more of a policy statement than a legislative rule, and is therefore not subject to the APA’s notice and comment requirement.[12] According to the APA, “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice” need not meet the notice and comment requirement.[13] The Ninth Circuit previously held that the issue of whether a particular directive is considered a legislative rule or a policy statement is determined by the amount of discretion it provides to the implementing agency or official.[14] The two-part analysis set forth by the Functional Standard requires the analyst to determine whether the behavior in the SAR falls into one of the sixteen behavioral categories “and then make[] a judgment as to whether, given the context, facts, and circumstances available, there is a potential nexus to terrorism (i.e., to be reasonably indicative of pre-operational planning associated with terrorism).”[15] Because of the significant level of discretion possessed by the analyst, the Ninth Circuit concluded that the Functional Standard does not amount to a legislative rule.[16]

           The Ninth Circuit rejected the plaintiffs’ second argument on the basis that the information contained in SARs is distinct from criminal intelligence information.[17] According to 28 C.F.R. §23.20, the statute governing the dissemination of criminal intelligence information, “criminal intelligence systems can retain criminal intelligence information ‘only if there is a reasonable suspicion that the individual is involved in criminal conduct or activity.’”[18] The Functional Standard, however, requires that the SARs which are made available to law enforcement agencies contain information that is “reasonably indicative of pre-operational planning associated with terrorism or other criminal activity.”[19]

Thus, the Functional Standard is less stringent than the standard for criminal intelligence information pursuant to 28 C.F.R. §23.20. According to the Ninth Circuit, this inconsistency is cured by the distinction between criminal intelligence information and the information compiled within ISE-SARs.[20] While criminal intelligence information is derived from past and present criminal investigations, ISE-SARs contain reports of possible criminal activity compiled and shared among various law enforcement agencies with the purpose of determining whether to begin an investigation into potential terrorist activity.[21] On that basis, the Ninth Circuit reasoned that the compiling of SARs under the guidelines provided in the Functional Standard is not arbitrary and capricious in violation of the APA.[22]

[1] Gill v. United States DOJ, 2019 U.S. App. LEXIS 2941, 4-5 (9th Cir. 2019)

[2] Id. at 5.

[3] Id. at 4.

[4] Id. at 5.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 5-6.

[10] Id.

[11] Id. at 6-7.

[12] Id. at 14-15.

[13] 5 U.S.C. § 553(b)(3)(A).

[14] Colwell v. Dep’t of Health & Human Servs. 558 F.3d 1112, 1124 (9th Cir. 2009).

[15] National SAR Initiative, Information Sharing Environment (ISE) Functional Standard (FS) Suspicious Activity Reporting (SAR) Version 1.5.5, https://nsi.ncirc.gov/documents/SAR_FS_1.5.5_PMISE.pdf

[16] Gill, 2019 U.S. App. LEXIS 2941 at 13-15.

[17] Id. at 21.

[18] Id. at 15 (quoting 28 C.F.R. § 23.20(a)).

[19] Id. at 5.

[20] Id. at 18-19.

[21] Id.

[22] Id. at 21.

An Unlikely Defense: “I wasn’t driving – my car was!”

Kaytlynn Hobbs, 2019-2020 Blog Editor, University of Cincinnati Law Review


Those who spent their childhoods dreaming of the perks bestowed upon comic book and film heroes are now able to live out their youthful fantasies and channel their inner Batman by beckoning – with a single technological signal – autonomous, Batmobile-esque vehicles to their exact locations. Technological advances have lent itself to the creation of such vehicular systems in modern times. Self-driving vehicles are no longer the fantastical byproduct of a cartoon artist slaving away over a drawing pad at two in the morning in a studio apartment littered with stained coffee cups and discarded drafts in Manhattan; no, vehicles capable of autonomous driving now really exist.

However, while these cars can perform functions without human control, they are not able to fully function without direction. Although this advance yields great power, Uncle Ben would warn that there still remains great responsibility. There have been a few instances where a driver of such vehicle, while intoxicated, has used these autopilot functions instead of manually driving while drunk. Despite their seemingly good intentions, these drivers were still ticketed for driving under the influence.

As companies improve the technology in automobiles, this will become a more prevalent issue. This article will explain how auto-pilot features currently work, general elements of drunk driving, and modern examples of drunk “drivers.” While there are sound arguments in support of exemptions, those should only apply to vehicles that are fully-autonomous; because there are no current vehicles that reach this requirement, “driving” or operating a vehicle on auto-pilot while intoxicated should still expose that driver to liability.


            There are several companies that sell vehicles that have autonomous-driving features; however, because of Tesla’s popularity and relevance in articles documenting drunk-driving issues, this article will focus on Tesla automobiles.[1]

            The U.S. Department of Transportation’s National Highway Traffic Safety Administration (“NHTSA”) relies on six different automation levels, classifying autos by the level of human control necessary to operate the vehicle.[2] Level zero, labeled “no automation” leads the classification with the driver exercising full control over each driving task.[3] Level one is “driver assistance,” and include vehicles that are still controlled by the driver but allow for some functions to be completed by the car.[4] Level two, “partial automation,” still requires the driver to be engaged in driving while the vehicle has certain functions like steering and acceleration.[5] Tesla’s Autopilot is classified as a level two vehicle.[6]

            Levels three through six take even larger leaps into superhero-realm. Level 3 is called “conditional automation” and while it does not require the driver to pay attention at all times, these systems still impose an obligation on the driver to take over control of the car if necessary.[7] Levels four and five are what most probably think of when they hear fully autonomous driving. The fourth level is termed “high automation” and consists of vehicles that can perform all driving functions without human interaction in certain circumstances.[8] The final level five encompasses vehicles that perform all driving functions in all situations.[9]

            These levels are important because they show the state of technology: most automobiles, including Tesla’s, are at level two.[10] Tesla’s Autopilot includes several features, ranging from those known to most drivers – e.g. cruise control – to the more cutting-edge technology which allows the autos to automatically spot and park in parking spots, be summoned from the driver’s phone, and change lanes automatically.[11]

            Tesla automobiles are equipped with eight cameras to allow full visibility around the cars, accompanied by ultrasonic sensors that detect close objects, and computer software that is capable of “vision, sonar and radar processing . . . on wavelengths that go far beyond the human senses.”[12] Such technology allows the automobiles to adjust its speed according to current traffic conditions, stay in its own lane – as well as change lanes automatically – and exit and enter highways.[13] Additionally, these cars allow a driver to exit the car while it parks itself, later being called back to the driver via the phone.[14]

            The company itself explicitly recognizes on its website that the current autopilot features do not constitute full automation; instead, it says that the vehicles have the hardware that will be needed in the future to form fully self-driving autos.[15] Also on its site is the declaration that each driver shall remain “alert and active when using Autopilot, and must be prepared to take action at any time.”[16] This statement again reiterates that technology is still waiting on its first automobile that can fully drive itself without imposing a continuous obligation on the driver.


            While statutes differ slightly depending on the jurisdiction, there are general elements that open a driver up to a charge under the state laws regarding driving under the influence.[17] Elements that carry from state to state include: 1) driving or operating a vehicle 2) on a public road while 3) intoxicated by use of drugs or alcohol.[18] In some states, attempted operation will suffice, so long as it can be shown that the accused took a “substantial step” in operating the automobile while having the intent to operate it.[19] States take on a broad view of the word “operate.” For instance, Ohio defines operate as “causing movement” of an automobile.[20] With such a broad definition, the rise of autonomous vehicles begs the question: just how broad is it?


            There have been a couple – albeit, a small amount – of instances of a driver attempting to shirk responsibility by relying on the auto-pilot features.

            Earlier in 2018, a San Francisco man was arrested due to a suspicion of driving under the influence, despite insisting that his Tesla was on auto-pilot.[21] Testing at over two times the legal blood alcohol content limit, his defense was rejected.[22]

            Several months later, in December of 2018, the California Highway Patrol tailed a Tesla for seven miles before it stopped.[23] Because the driver was asleep, the car stopped only when a police officer got in front of it and began slowing down.[24] Similar to the January incident, this driver was arrested on suspicion of a DUI due to a failed sobriety test (after he woke up, of course).[25]

            While these incidents seem to be sparse so far, as autonomous cars become more accessible to the larger public, it could pose a larger problem.


            Currently drafted, the laws regarding intoxicated driving are mostly compatible with these self-driving or autopilot features in vehicles. Most statutes allow for a broad interpretation of the word “operation” and even using auto-pilot features, but still retaining control over the vehicle, would fall under this definition.

At first glance, it might seem intelligent to reduce liability for those who are intoxicated and choose not to manually drive, but to rely on automated cars. After all, it must be safer because the decision-maker is not the drunk (or sleeping) person, but a machine with sophisticated software. In some cases, this is probably true, and there are likely a good number of people who have used this as a safer option. In fact, the Australia National Transport Commission has advocated for an exemption from driving while intoxicated laws when the driver is in an autonomous vehicle.

However, the crucial factor that blocks this lies in the NHTSA levels of automation: we are still in level two (or three, if you own the Audi A8).[26] Level two vehicles require the drivers to remain engaged in driving; even though the vehicle may have hi-tech features that reduce the need for drivers to intervene constantly (as with a level zero or level one), the driver still must be in control. The Tesla website itself also explicitly mentions this obligation. If something happens that the car is unable to react to, the driver must be in good enough condition to react and act instead. The risks that drunk driving poses are too great to provide for exemptions for level two, or even threes cars, due to this required control. I would argue that limited exceptions should apply to level four vehicles, because those features only extend to certain situations. Until technology reaches the point of creating consistently safe level five, fully-autonomous self-driving vehicles, legislation should not provide exemptions.

[1] John M. Vincent, Cars that are almost self-driving, USANews, https://cars.usnews.com/cars-trucks/cars-that-are-almost-self-driving?fbclid=IwAR3W88PvLFIqFHncmEKg-vrnuvkGUD09Am_8pR5je0iPtvf20DODuV65z4A (October 23, 2018)

[2] National Highway Traffic Safety Administration, Automated Vehicles for Safety, https://www.nhtsa.gov/technology-innovation/automated-vehicles-safety

[3] Id.

[4] Id.

[5] Id.

[6] Nick Heath, Tesla’s Autopilot: Cheat Sheet, https://www.techrepublic.com/article/teslas-autopilot-cheat-sheet/ (August 1, 2018)

[7] Supra note 2.

[8] Id. See also Hope Reese, Updated: Autonomous Driving Levels 0 to 5: Understanding the differences, https://www.techrepublic.com/article/autonomous-driving-levels-0-to-5-understanding-the-differences/ (January 20, 2016). The second article explains that the circumstances are limited to the operational design domain (“ODD”) of the automobile, and does not extend to every single situation.

[9] Id.

[10] Tim Pollard, What are autonomous car levels? Levels 1 to 5 of driverless vehicle tech explained, https://www.carmagazine.co.uk/car-news/tech/autonomous-car-levels-different-driverless-technology-levels-explained/ (March 23, 2018). Audi has stated that its new A8 vehicle is level three.

[11] Supra note 6.

[12] Tesla, Autopilot, https://www.tesla.com/autopilot (last visited December 28, 2018)

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] 7A Am Jur 2d Automobiles and Highway Traffic § 340

[18] Id.

[19] Id.

[20] Ohio Rev. Code Ann. § 4511.01

[21] CBS SF BayArea, Tesla Driver Found Asleep on Bay Bridge Tells CHP Car Was on Autopilot, https://sanfrancisco.cbslocal.com/2018/01/19/712326/ (January 19, 2018).

[22] Id.

[23] TechSpot, Tesla drove 7 miles using Autopilot as driver allegedly slept drunk behind the wheel, https://www.techspot.com/community/topics/tesla-drove-7-miles-using-autopilot-as-driver-allegedly-slept-drunk-behind-the-wheel.250748/ (December 3, 2018).

[24] Id.

[25] Id.

[26] Supra note 10.

This Week in Weird Federal Crimes: Don’t be Littering (at a NPS Site)!

Collin Hart, Associate Member, University of Cincinnati Law Review

The U.S. National Parks System (“NPS”) is one of our country’s great treasures  and comprises 418 different sites with eighty-five million acres of protected land.[1] The NPS was created in 1916 by President Woodrow Wilson and while the NPS contains many actual parks, the system also contains and oversees national monuments, historical sites, battlefield and military parks, nature preserves, sea shores, and lakeshores.[2] The NPS is becoming increasingly popular with over 330 million recreational visits in 2017[3] and after visiting one of the many sites it is easy to see why the NPS attracts so many visitors. Whether one seeks an opportunity to learn more about nature, history, or simply some fresh air, the NPS offers some of the most beautiful, pristine, and historical sites in the world.

For many the main draw in visiting one of the many national parks is the opportunity to experience nature in its most pristine form. In an often dirty and trash filled world, the chance to escape to something cleaner and simpler is irresistible for many. While it may seem impossible to keep any space clean in modern times, the NPS is able to keep all of its sites nearly pristine and free of loose trash through a combination of clear communication, voluntary support, and a little good-old-fashion government muscle. Namely by criminalizing the disposal of trash in anything other than a trash can.

Under 18 U.S.C. §1865(a), any person that violates any NPS regulation can be subject to up to six-months in jail, fines, or both.[4] Additionally, under 36 C.F.R. §2.14(a)(1), disposing of trash in anything other than a trash can is prohibited on NPS sites.[5] Thus, if one litters at a NPS site that person could face six months in jail and/or additional fines. In other words, don’t litter at a national park!

The moral of this story is two-fold. First, it does not pay to litter at a NPS site. While no one likes to carry around an empty Doritos bag, that slight inconvenience is nothing compared to six months in jail. Second, aside from any legal obligation all Americans should strive protect and maintain our natural and historical sites. No matter one’s age, race, or political affiliation, everyone can enjoy, experience, and take pride in our national parks system. So, everyone should strive to keep the NPS as pristine and undegraded by human activity as possible so that generations to come will be able to experience these places in all their glory!

[1] National Park Service Overview, National Parks Service, https://www.nps.gov/aboutus/news/upload/NPS-Overview.pdf.

[2] Id.

[3] National Park System Sees More Than 330 Million Visitors, National Parks Service (February 28, 2018), https://www.nps.gov/orgs/1207/02-28-2018-visitation-certified.htm.

[4] 18 U.S.C.A. §1865(a) (2018).

[5] 36 C.F.R. §2.14(a)(1) (2019).

Photo provided by Wiki Commons

You Want To Name Your Baby What?

Megan Kauffman, Associate Member, University of Cincinnati Law Review

            In early December 2018, an expecting mother’s Facebook post went viral when she canceled her baby shower because her family and friends mocked the chosen name of her upcoming baby, “Squire Sebastian Senator.”[1]  The woman wants the three-part name to be the given name of the baby boy with a middle name and last name to follow.  While the internet has had a field day over the social media post, the question surfaces: Can she legally give her child the first name of Squire Sebastian Senator?  As birth records and statistics are maintained at the state level, each state has different legal requirements with regards to the names given to babies.  While some states have no particular laws regarding the naming of children, some states have enacted legislation that could prevent a parent from registering a chosen name with the government.

If the mother from the Facebook post was interested in spelling Sebastian in a French or Spanish manner, she could run into issues in California, Massachusetts, and New Hampshire.  “Sébastien” and “Sebastián” are not permitted under these states’ legislation, as accents, umlauts, and tildes are prohibited on birth certificates, marriage licenses, and death certificates.  In California, state law changed in 1986 that made English the official language of the state and outlawed the use of symbols on the above official documents.[2]  The above states, as well as New Jersey, has also banned the use of any pictographs or ideograms in names.[3]

If Squire Sebastian Senator is born in Massachusetts, his mother might have to shorten his middle and last names as the state limits the full name of a child to forty letters.  As his first name is twenty-two letters long, his middle and last names could not be longer than eighteen letters combined.  The state of Massachusetts enacted this limitation because of software limitations and ease of administrative processes.[4]

Many states have lists of banned baby names, which include religious figures, obscenities, derogatory figures, or infamous historical figures, such as Adolf Hitler.  Michigan, Nevada, and Connecticut do not require a child to have a name at birth or to have a name listed on the birth certificate.[5]  Other interesting laws involving baby names include those found in Florida, Kentucky, and District of Columbia.  Both parents must be in agreement on a child’s name in Florida or else the state allows the court to decide the name.  The law states that a given name cannot be recorded on the birth certificate until both parents are in agreement on the given name, which is then notarized to show agreement, or until a name is selected by the court.[6]  In District of Columbia, a child can be given any surname as long as it belongs to some past or present familial relation.[7]  Kentucky has taken this one step further, allowing a parent to give a child any surname that they choose, regardless of whether it is a family name or not.  The parents may choose whatever surname they desire, and if the parents are separated or divorced at the time of the birth, the parent who has legal custody can choose the name.  In fact, Kentucky is one of only a few states that has absolutely no restrictions on what a child is named.[8]

Although “Squire Sebastian Senator” is quite an unusual first name, his mother will likely be able to name him such.  Luckily, many states allow for an individual to change his name at the age of eighteen.  When Squire Sebastian Senator realizes the hassle of filling out a scantron during college exams, he will have the option to apply for a name change.

[1] Maura Hohman, Mom-to-Be Cancels Baby Shower After Family Ridicules Her Name Choice: ‘This Name Conveys Power’, People (Dec. 10, 2018) at https://people.com/human-interest/mom-cancels-baby-shower-after-family-ridicules-baby-name-choice-viral-reddit-post/.

[2] Cal. Const., Art. III § 6.

[3] Carlton F.W. Larson, Naming Baby: The Constitutional Dimensions of Parental Naming Rights, in The George Washington Law Review Vol. 80 No. 1, 159, 168 (Nov. 2011).

[4] Id. at 169.

[5] Id. at 170.

[6] Fla. Stat. Ann. § 382.013 (LexisNexis, Lexis Advance through the 2018 Second Regular Session of the 25th Legislature).

[7] D.C. Code § 7-231.08 (Lexis Advance through December 31, 2018 [D.C. Law 22-197]).

[8] Ky. Rev. Stat. § 213.046 (LexisNexis, Lexis Advance through the 2018 legislative session).


Nathan Potter, Associate Member, University of Cincinnati Law Review


            The United States legal system is costly, time-consuming, and sometimes unnavigable. These barriers are further compounded by, what some would call, unfair pleading standard requirements for plaintiffs and defendants. There has been a split among federal circuit courts for nearly a decade following the Bell Atlantic Corp. v. Twombly[1]and Iqbal v. Ashcroft[2] decisions from the Supreme Court of the United States (SCOTUS). The split arises from the argument that the plausibility pleading standard of Twombly/Iqbal applies to more than complaints, that this standard should also apply to affirmative defenses. As of the writing of this article, December 2018, SCOTUS has yet to clarify whether the plausibility pleading standard applies to affirmative defenses. If the legal system is built upon fairness and justice, what is the best method of simultaneously protecting the interests of a plaintiff and a defendant? This article is primarily meant to be informative. It will endeavor to provide a high-level overview of the issue and attempt to educate the reader about whether he or she may wish to contemplate litigation, using the plausibility pleading standard as an offensive tool.


            The Federal Rules of Civil Procedure (FRCP) are the basis for procedural law in the United States federal court system. They were first adopted in 1938 and have gone through several amendments to grow with the needs of the legal system.[3] Most states base their own procedural rules on the FRCP. Arguments surrounding pleading standards originate in Rule 8, also known as the notice pleading standard.

            When bringing a suit in  federal court, Rule 8(a) has three requirements for the plaintiff: (1) a short and plain statement of the grounds for the court’s jurisdiction; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought.[4] Likewise, Rule 8(c) also provides requirements for a defendant who asserts a defense: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party.[5] Prior to 2007, courts customarily applied the notice pleading standard[6] to both claims and affirmative defenses. However, this standard was replaced by the SCOTUS’s holding from Twombly in 2007. Some courts have also extended this replacement to affirmative defenses.

In Twombly, SCOTUS held that complaints must allege facts that are plausible, not merely conceivable.[7] In Iqbal, this heightened pleading standard was fortified and deemed applicable to all Federal court cases, although by a 5-4 split decision.[8] SCOTUS has been silent as to whether this heightened pleading standard applies to affirmative defenses and this has caused a significant split in treatment by the Federal district courts. Additionally, such a disparity promotes the use of forum shopping and the search for obtaining other legal advantages before filing a complaint.

            There is a difference between standard defenses and an affirmative defense. “An affirmative defense is generally a defense that, if established, requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the evidence (civil litigation).”[9] Borrowing from the contract law context, a standard defense is something straightforward, like “the plaintiff’s facts do not support their conclusion that the defendant breached the contract” or “the plaintiff misstated the law and the defendant does not owe the plaintiff any damages.” This type of defense puts the burden on the plaintiff to assert facts which prove their claim. Contrast this to an affirmative defense which, if found credible, will negate the defendant’s civil liability.[10] Affirmative defenses are credible if they are determined to be plausible by a preponderance of the evidence.[11] A common example, continuing with our contract law context, would be “even if the defendant breached the contract, he is not liable for damages because the contract is unconscionable.” The pleading standard for affirmative defenses is an important issue because it deals with the burden placed on either party in a legal dispute. Often, a disparity in capital, time, knowledge, or other resources will defeat a party before they even step into the courtroom. It is also important to know that this article will strictly be dealing with federal law; however, state law often mimics federal law.

The Conflicting Circuits

            While there is a split among federal circuit courts regarding whether to apply Twombly to affirmative defenses, that split is not down the middle. Many circuits are even split among the district courts within their own circuit. In an effort at brevity and organization, the circuits will be categorized by whether their circuit—generally—applies Twombly, and then the circuits will be listed in numerical order in that category. Following this organization, the article will provide some of the more common and compelling reasons to apply, or not to apply, Twombly to affirmative defenses.

The Federal courts which do not regularly apply Twombly to affirmative defenses are the First Circuit,[12] the Second Circuit,[13] the Third Circuit,[14] the Seventh Circuit,[15] the Eighth Circuit,[16] the Ninth Circuit,[17] the Tenth Circuit,[18] the Eleventh Circuit,[19] and the DC Circuit.[20] The Federal courts which typically apply Twombly to affirmative defenses are the Fourth Circuit[21] and the Sixth Circuit.[22] The Fifth Circuit is still in flux on whether it wishes to apply the plausibility pleading standard to affirmative defenses; therefore, it would be unfair to categorize it.[23]    

Reasons Supporting Application of Twombly to Affirmative Defenses

While most courts now favor retaining the notice pleading standard for affirmative defenses, this was not originally the case. Opinions commonly noted, following the Twombly and Iqbal decisions, that the majority of district courts held that the plausibility pleading standard did apply to affirmative defenses.[24] Those courts often cited Rule 8(b)(2) which says that in a denial defense, a defendant “must fairly respond to the substance of the allegation.”[25] This is cited for its comparative language to the notice pleading standard in Rule 8(a). Courts also subscribe to the logic that in order to raise an affirmative defense, a defendant must readily have, or have researched, some background facts to support that defense.[26] Therefore, because defendants are more readily capable of collecting these facts, the plausibility pleading standard is not overburdensome on any defendant. Additionally, the flexibility of being able to amend a defense “softens any painful blow of heightened pleading standards.”[27] Interestingly, many of the courts who initially applied the Iqbal/Twombly plausibility pleading standard to affirmative defenses have since rejected the Twombly standard for affirmative defenses.[28]

After significant research, it is difficult to determine exactly why several districts have crossed back to the notice pleading camp; however, many of the reasonings are based on what many courts call compelling legal and policy arguments.[29]

 Reasons to Reject the Application of Twombly to Affirmative Defenses

Courts arguing against applying the plausibility pleading standard to affirmative defenses often cite that neither the FRCP, the appendix, nor their committee notes mention applying the Twombly standard to affirmative defenses.[30] An affirmative defense is not a “claim for relief” and no rule requires defendants to plead facts “showing” that a plaintiff is—not—entitled to relief.[31] Courts also regularly point out that plaintiffs and defendants begin in very different positions. A plaintiff may prepare their complaint over months, or even years, before bringing suit.[32] In contrast, a defendant only has twenty-one days by statute to gather the information required to serve an answer to the court.[33] If the plausibility pleading standard were to apply to defendants, there would be a much more strenuous burden imposed upon defendants than on plaintiffs due to the time each has to prepare his answer or claim, respectively.[34] Lastly, courts more recently cite to Rule 8(c), which is applies to affirmative defenses.[35] Courts tend to draw a distinction between the language of Rule 8(b) (which is similar to the language of Rule 8(a)) and Rule 8(c) (which says a defendant need only “affirmatively state” any avoidance or affirmative defense).[36]


            Federal courts have left this area of law in a quagmire. The initial reaction to Twombly and Iqbal was to apply their plausibility pleading standard to affirmative defenses. But, over time, almost all the district courts have rejected this heightened burden on defendants. It cannot simply be an awakening to justice. Initially, there were strong rationales for applying the plausibility standard to affirmative defenses. The fact that the standards for claims and defenses are in the same rule of Federal Procedure is not mere coincidence. And it is not a large jump of logic to say that sections within the same rule should be read together and similarly applied, unless they specifically reject such treatment. Additionally, courts are (usually) very lenient with dates and amendments to complaints, answers, motions, and more. The fact that the defendant statutorily has twenty-one days to file an answer with the court is almost meaningless in practice. There is a limit to how many extensions and continuances a defendant could file, but it is unlikely that a defendant would exhaust such lenient mechanisms without generating enough time to research facts and provide a proper answer including an affirmative defense.

Without being required to set forth a plausible set of facts for an affirmative defense, the plaintiff is unjustly burdened because of all the resources set forth in the plaintiff’s plausible complaint. A plaintiff may spend months, or years, preparing for litigation. Under the notice pleading standard for affirmative defenses, the defendant would have to provide very little to assert an affirmative defense, consequently requiring much less of the defendant’s time and resources. Whether the defendant is ultimately at fault, the plaintiff would have to endure discovery and pre-trial motions (meaning further significant expenditures of time and money) before the plaintiff could even request the judge to rule on his claim and the defendant’s affirmative defenses. Is this fair to the plaintiff?

            A defendant is almost always at a disadvantage by the plaintiff’s initiation of litigation. Even if a defendant is aware of potential litigation in the defendant’s future, it may still be difficult to prepare documents and facts to assert an affirmative defense under the plausibility pleading standard. Recall, this issue is not that the defendant’s facts are conceivable and entitle the defendant to a negation of criminal or civil liability, but that the defendant’s facts must be plausible. In other words, the defendant’s facts must be “more than likely” to be true. This subjective standard is burdensome on everyone (the defendant, the court, and even the plaintiff). Additionally, some may call this heightened standard unnecessary when the judge (bench trial) or jury will be the determiners of fact. Yes, there are concerns of judicial economy and reasons to encourage the plaintiff and defendant to settle, but it is conceivable that a savvy plaintiff could use the court system’s proclivity to the plaintiff’s unfair advantage. Is this fair to the defendant?

            This issue is correctly settling on affirmative defenses only needing to meet the lenient notice pleading standard. There is not a tremendous amount of data, but it does not appear that the Fourth and Sixth Circuits are being overrun with forum-shoppers, seeking to take advantage of their application of Twombly to affirmative defenses. The monetary costs and time involved in litigation do help promote judicial economy. And while it may be somewhat unfair to a plaintiff, who has a much heavier burden in most federal circuits, it should be that way. The plaintiff will receive their payout once litigation is over and the court system is designed to deter frivolous claims. The plaintiff having a heavier burden just makes sense. This small unbalancing of the scales in the defendant’s favor is necessary. In practical use, the plausibility pleading standard is commonly held not to apply to affirmative defenses. And it is unlikely that a plaintiff would benefit significantly from filing a claim in the Fourth or Sixth Circuits only to pressure the defendant into the plausibility pleading standard. Finally, the assertion of an affirmative defense does not mean the judge or jury will believe and rule for that defense. Prohibiting the pleading of a possible, by preponderance of the evidence, defense removes power from the fact-finder and places that power in procedural rules.


            It is impossible to know why SCOTUS has declined, and continues to decline, to review the application of plausibility pleading standards to affirmative defenses. It could be that SCOTUS does not want the plausibility pleading standard to apply to affirmative defenses and, by watching the majority of lower courts move in that direction, does not see a need to intervene on a “settled” matter. It is also just as likely that SCOTUS does intend the plausibility standard to apply to affirmative defenses and may grant certiorari on a case soon to deliver that very holding. Even if SCOTUS does think the matter is settled, it would be better for them to give a concrete holding so that district courts stop applying inconsistent standards.

            Meanwhile, Federal Circuits are (mostly) moving in the right direction. The assertion of an affirmative defense in an answer does not mean a defendant is entitled to that defense. If an affirmative defense is possible, the defendant should be able to assert it and let the fact-finder determine the credibility of that defense. The plausibility pleading standard, as applied to affirmative defenses, usurps the fact-finder’s role in the courtroom for the sake of procedural law.

[1] Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

[2] Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[3] Federal Rules of Civil Procedure, Information Institute, https://www.law.cornell.edu/rules/frcp (last visited Dec. 8, 2018).

[4] Fed. R. Civ. P. 8(a).

[5] Fed. R. Civ. P. 8(c).

[6] Notice pleading requirements emphasize that the pleading in a complaint, or answer, be sufficient to notify the other party of the general issues in the case. This allows either party to state their claims or defenses in general terms, instead of using detailed facts for each claim or defense.

[7] Twombly, 550 U.S. at 570.

[8] Iqbal, 556 U.S. at 687.

[9] Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th Cir. 1999).

[10] Affirmative Defense, Legal Information Institute, https://www.law.cornell.edu/wex/affirmative_defense (last visited Dec. 8, 2018).

[11] This standard means that the defense is more likely true than not. Specifically, the facts need only be greater than fifty percent true.

[12] Lexington Luminance LLC v. TCL Multimedia Tech. Holdings, Ltd., Civil Action No. 16-cv-11458-DJC, 2017 U.S. Dist. LEXIS 140479, *19 (D. Mass. Aug. 30, 2017).

[13] Erickson Beamon Ltd. v. CMG Worldwide, Inc., 2014 U.S. Dist. LEXIS 112437, *18 (S.D.N.Y. Aug. 12, 2014).

[14] Gelman v. Rosen, Civil Action No. 14-6790 (JBS/KMW), 2015 U.S. Dist. LEXIS 52678, *5 (D.N.J. Apr. 22, 2015).

[15] Perez v. PBI Bank, Inc., No. 1:14-cv-01429-SEB-MJD, 2015 U.S. Dist. LEXIS 13590, *5 (S.D. Ind. Feb. 4, 2015).

[16] Wells Fargo & Co. v. United States, 750 F. Supp. 2d 1049, 1051 (D. Minn. 2010).

[17] Gomez v. J. Jacobo Farm Labor Contractor, Inc., 188 F. Supp. 3d 986, 992 (E.D. Cal. 2016).

[18] Daley v. Scott, No. 2:15-cv-269-FtM-29DNF, 2016 U.S. Dist. LEXIS 83735, *5 (M.D. Fla. June 28, 2016).

[19] Floyd v. SunTrust Banks, Inc., No. 1:10-CV-2620-RWS, 2011 U.S. Dist. LEXIS 65190, *21 (N.D. Ga. June 13, 2011).

[20] United States v. All Assets Held at Bank Julius, 229 F. Supp. 3d 62, 70 (D.D.C. 2017).

[21] Hammer v. Peninsula Poultry Equip. Co., Civil Action No. RDB-12-1139, 2013 U.S. Dist. LEXIS 2505, *13 (D. Md. Jan. 8, 2013).

[22] Peters v. Credit Prot. Ass’n LP, No. 2:13-CV-0767, 2015 U.S. Dist. LEXIS 31820, *9 (S.D. Ohio Feb. 19, 2015).

[23] See generally Kleppinger v. Tex. DOT, No. L-10-124, 2012 U.S. Dist. LEXIS 198322, *15 (S.D. Tex. Aug. 10, 2012); Cordero v. Voltaire, LLC, No. A-13-CA-253-LY, 2013 U.S. Dist. LEXIS 172532, *26 (W.D. Tex. Dec. 6, 2013); Calvillo v. J & M Tank Lines, Inc., No. SA-15-CA-1165-FB, 2016 U.S. Dist. LEXIS 180980, *6 (W.D. Tex. Apr. 15, 2016).

[24] Bradshaw v. Hilco Receivables, LLC, 725 F. Supp. 2d 532, 536 (D. Md. 2010).

[25] Bradshaw, 725 F. Supp. 2d at 536.

[26] Francisco v. Verizon S. Inc., Civil Action No. 3:09cv737, 2010 U.S. Dist. LEXIS 77083, *25 (E.D. Va. July 29, 2010).

[27] Id.

[28] Brian Robison & Alithea Z. Sullivan, District Courts Extend Twombly to Affirmative Defenses, American Bar Ass’n.,(2010), https://apps.americanbar.org/litigation/litigationnews/trial_skills/082710-trial-evidence-Twombly-district-courts.html.

[29] All Assets, 229 F. Supp. 2d at *70 (referring to Judge Rudolph Contreras’s thorough explanations on the subject).

[30] Wells Fargo, 750 F. Supp. 2d at 1051.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Summers Mfg. Co. v. Tri-Cty. AG, LLC, 300 F. Supp. 3d 1025, 1044 (S.D. Iowa 2017).

[36] Id.

The Fifth Amendment: Defining a “Criminal Case”

John Simon, Associate Member, University of Cincinnati Law Review


            In May 2015, Matthew Vogt filed a complaint in the United States District Court for the District of Kansas alleging a violation of 42 U.S.C. § 1983.[1] Specifically, Vogt alleged that the City of Hays, in addition to other parties, violated his right to be free from self-incrimination.[2]

            The allegations stemmed from an incident in late 2013. Vogt, at the time of the incident, was employed as a police officer with the City of Hays; he applied for a position with the police department in the neighboring city of Haysville.[3] During the application process, Vogt disclosed that he illegally retained a knife he obtained while working as a Hays police officer.[4]     

            Despite Vogt’s disclosure, he was offered a position as an officer with the Haysville police department. However, this offer was conditioned upon Vogt reporting to the Hays police department his possession of the knife.[5]

            Vogt satisfied the condition by reporting to the Hays police department that he retained possession of the knife.[6] Vogt was ordered to complete a written report concerning his possession of the knife; Vogt submitted a vague one-sentence report. Subsequently, Vogt offered the Hays police department his two-week resignation notice, intending to accept Haysville’s offer.[7]

            During this period, the Hays police chief began an internal investigation into Vogt’s possession of the knife.[8] A Hays police officer asked Vogt to provide a more detailed statement regarding his possession of the knife so that the officer could keep his job with the Hays police department. Vogt provided the statement which led the Hays police to additional evidence.[9]

            Using Vogt’s statements and the additional evidence, the Hays police asked the Kansas Bureau of Investigation to open a criminal investigation.[10] This investigation prompted the Haysville police department to withdraw its offer to Vogt. Vogt was charged in Kansas state court with two felony counts related to his possession of the knife.[11] The charges were ultimately dismissed after the state district court determined that probable cause was lacking.[12]

            Vogt’s case presented an undecided issue within Fifth Amendment jurisprudence: does the Fifth Amendment protect against the introduction of compelled statements at pre-trial proceedings? A split has developed among the circuits; some circuits maintain that the Fifth Amendment protects against the introduction of compelled statements at any level of a criminal proceeding, while others only recognize the Fifth Amendment as a trial right.

Procedural Posture:

            In his complaint with the District Court of Kansas, Vogt argued that his Fifth Amendment rights were violated when he was compelled to provide additional information to the Hays police department and it was given to an investigator to be used in criminal proceedings against him.[13] The District Court ultimately dismissed the allegations finding that Vogt failed to state a violation of his constitutional rights because the Fifth Amendment served as a trial right, not a pre-trial right.[14] Vogt appealed his decision to the Tenth Circuit Court of Appeals. 

Fifth Amendment Jurisprudence:

            The Fifth Amendment maintains that no person “shall be compelled in any criminal case to be a witness against himself.”[15] Historically, the privilege against self-incrimination developed from the eventual rejection of the inquisitorial system—requiring that persons admit their crimes under oath—utilized in Star Chamber proceedings.[16] While the phrase protecting against self-incrimination remains brief, its meaning has been expanded over the course of time. The Supreme Court stated that the Fifth Amendment involves two major interests: “the preservation of an accusatorial system, which goes to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion.”[17] The Court further noted that the “sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.”[18] Thus, the privilege against self-incrimination precludes the requirement of providing testimony; the protections also extend into the realm of police interrogations. 

The Fifth Amendment’s extension into police interrogations stems from the Supreme Court’s concerns regarding the inherently overbearing nature of custodial interrogations.

Demonstrating these concerns, the Supreme Court ruled in Miranda v. Arizona that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”[19] Subsequent decisions have created exceptions narrowing the Miranda warning requirement. For instance, the Supreme Court permits the use of statements taken in violation of Miranda when the statements were obtained pursuant to a public safety concern,[20] or when the statements are used solely for impeachment purposes.[21]

            Regarding the scope of Fifth Amendment protections, the Supreme Court has provided minimal guidance. For instance, in United States v. Verdugo-Urguidez, the Court, addressing the scope of protections offered to illegal aliens, noted, in dicta, that the Fifth Amendment constitutes a trial right.[22] Further, in Mitchell v. United States, the Court, determining whether self-incriminatory statements could be introduced at sentencing, determined that the Fifth Amendment’s protections extended to sentencing hearings—constituting protection beyond a trial.[23] However, the Court is less clear regarding the time when Fifth Amendment protections become applicable. In Chavez v. Martinez, Justice Thomas, writing the plurality opinion, held that the Court “need not decide today the precise moment when a ‘criminal case’ commences; it is enough to say that police questioning does not constitute a ‘case’ any more than a private investigator’s pre-complaint activities constitute a ‘civil case.’[24] At the same time, introduction of statements obtained in violation of rules forbidding governmental coercion is not allowed.[25] On the other hand, in his dissenting opinion, Justice Kennedy contended that the Fifth Amendment’s protections are not triggered once incriminating statements are introduced at trial; a violation occurs the “moment torture or its close equivalents are brought to bear. Constitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place.”[26]

            Because of the Supreme Court’s opinion in Chavez v. Martinez, a split emerged among the Circuits as to what constitutes a “criminal case” in the context of the Fifth Amendment’s protections.

Third Circuit:           

In 2003, the Third Circuit held in the case of Renda v. King, that “a plaintiff may not base a § 1983 claim on the mere fact that the police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff’s answers were used against her at trial.”[27]

            In that case, Renda allegedly made a false claim to police officers that her boyfriend had abused her in their home.[28] Officers interrogated the boyfriend and then acquired a written statement from Renda without giving her any Miranda warnings. Renda failed to include the domestic incident in the statement.[29] When officers asked why the incident was not included, Renda stated that she had lied about the abuse.[30] Charges were brought against Renda for making a false claim; due to evidentiary issues, the prosecution ultimately dropped the charges prior to trial.[31]

            Renda filed a claim against the police department for violating her constitutional rights, including her right to be free from self-incrimination, among other violations. The District Court, during trial, dismissed the coerced interrogation claim.[32]

            On appeal, the Third Circuit maintained that a self-incrimination violation does not occur when a statement is made in the absence of Miranda warnings.[33] Instead, a violation occurs when those statements are used at trial.[34] Supporting its decision, the Third Circuit cited the Supreme Court’s decision in Chavez in which six Justices held that “‘failure to read Miranda warnings to Martinez did not violate Martinez’s constitutional rights and cannot be grounds for a § 1983 action.’”[35] Justice Thomas reasoned that the prophylactic rule announced in Miranda provided safeguards to the Self-Incrimination Clause, and that rules safeguarding constitutional rights do not expand the scope of the constitutional rights themselves.[36]

            Therefore, in Renda’s case, there was no violation of the Fifth Amendment because the charges were dropped prior to the introduction of Renda’s incriminating statements at trial.  

Tenth Circuit

            Revisiting Matthew Vogt’s claim that his constitutional rights were violated, the Tenth Circuit opted to take an expansive view of the Fifth Amendment’s protections. While finding that the Supreme Court failed to adequately determine the scope of the Fifth Amendment’s protections, the Tenth Circuit declared that “[t]o decide this issue, we join the Second, Seventh, and Ninth Circuits, concluding that the right against self-incrimination is more than a trial right.”[37] Coming to this conclusion, the Tenth Circuit grounded its reasoning in the text of the Fifth Amendment as well as the Framers’ understanding of the right against self-incrimination.

            In the opinion, the Tenth Circuit noted that the language of the Fifth Amendment remains broader than similar language used in other Amendments.[38] For instance, the Sixth Amendment maintains that “in all criminal prosecutions [emphasis added]” the accused maintains various rights including the right to a speedy trial, the right to confront witnesses, and the right to counsel.[39] According to the Tenth Circuit, the term “criminal case” seems to embody the term “criminal prosecution.”[40]

            The Tenth Circuit, further, examined the definition of the term “criminal case” as it was used when the Constitution was written. The court noted that “‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning…’”[41] Utilizing Webster’s 1828 dictionary as an authoritative source, the Tenth Circuit found that the term “case” was defined as “[a] cause or suit in court.”[42] Further, the term “case” was nearly synonymous with the term “cause” as Webster’s defined “cause” as “a suit or action in court.”[43] Thus, the Framers’ understanding of the term “case” was broader than just the trial itself. This understanding is enhanced by the Supreme Court’s opinion in Blyew v. United States, in which the Court found that “‘[t]he words “case” and “cause” are constantly used as synonyms in statutes and judicial decisions, each meaning a proceeding in court, a suit, or action.’”[44]

            The Tenth Circuit also examined the ratification of the Fifth Amendment as evidence of the Framers’ broad understanding of its application. When drafting the Amendment, James Madison omitted the term “criminal case” and instead intended for the protections to be extended to both criminal and civil matters.[45] Representative Laurence proposed, instead, to confine the Fifth Amendment to criminal cases, and evidence suggests that the consensus was that the protection against self-incrimination was not limited to one’s trial.[46] For instance, if at the time of ratification, the Fifth Amendment applied only to criminal trials, then the right would serve no purpose as criminal defendants were considered incompetent as witnesses.[47] Additionally, the Sixth Amendment was considered applicable during the court phase of prosecutions, including trials; the right against self-incrimination was grouped into Fifth Amendment privileges.[48]

            To conclude, the Tenth Circuit ultimately determined that nothing suggested that the Framers intended to confine the Fifth Amendment to criminal trials. Therefore, use of Vogt’s statements at a probable cause hearing could violate his rights against self-incrimination.[49]


            As the Tenth Circuit noted, “Different approaches have emerged because the Chavez Court declined to pinpoint when a ‘criminal case’ begins.”[50] Clearly, the circuits rely upon the Chavez case as support for their respective viewpoints. However, each circuit takes the views of the divergent plurality opinions offered by the Justices. The Third Circuit primarily relied upon Justice Thomas’s opinion finding that a Fifth Amendment violation only occurs once incriminating statements, compelled by the government, are introduced at trial. On the other hand, the Tenth Circuit followed Justice Kennedy’s argument that the Fifth Amendment “protects an individual from being forced to give answers demanded by an official in any context when the answers might give rise to criminal liability in the future.”[51] Reading the supporting materials, courts should apply the standard adopted by the Tenth Circuit, holding that the Fifth Amendment applies to incriminating statements made pre-trial.

            The Tenth Circuit’s standard properly observes the textual and historical arguments supporting the Fifth Amendment’s application to pre-trial hearings and provides individuals with the protection necessary to preclude the giving of incriminating statements in the face of mounting coercive pressures.

            Observing the textual argument, the Tenth Circuit properly noted that the language used in the Fifth Amendment sweeps more broadly than similar language utilized in other Amendments. Looking through the lens of the Framers, the Tenth Circuit specified that the term “case” means “[a] cause or suit in court.”[52] Thus, its application refers to any legal proceeding pertaining to criminal sanctions, which would include any pre-trial activities. Further, the historical argument logically infers that the Amendment must have been intended to apply in the pre-trial context primarily because courts did not view criminal defendants as competent witnesses. Thus, the Fifth Amendment’s protections would be irrelevant unless applied in the pre-trial context.

            While the arguments listed above provide a legal basis for the conclusion that the Fifth Amendment’s protections should be broadly applied, the Tenth Circuit’s standard provides necessary protections to defendants during significant stages of the criminal process.

            While trials require the factfinder to find guilt beyond a reasonable doubt, preliminary hearings require only that the judicial officer find probable cause to push the case through the criminal process.[53] The probable cause standard is a low burden of proof. As the National Association of Criminal Defense Lawyers and American Civil Liberties Union note, “[i]n most cases, a self-incriminating statement can, on its own, satisfy any [probable cause standard defined by a court] and allow the felony charge to proceed.”[54] Thus, the case would proceed on evidence that would be inadmissible at the defendant’s actual trial. This type of practice carries significant concerns. First, in a system already dictated by guilty pleas, permitting self-incriminating statements at pre-trial proceedings would only serve to increase the number of guilty pleas accepted.[55] Second, prosecutors would be more inclined to withhold certain arguments or pieces of evidence under the premise that less evidence would be necessary to secure a trial.[56] Finally, prosecutors would have, in effect, a second attempt to convict the defendant; in the event that the defendant is not pressured to accept a plea bargain, the prosecutor can simply attempt to convict the defendant at trial.[57]


            The text of the Constitution and the Fifth Amendment’s historical development support the notion that the Fifth Amendment’s protections extend beyond a defendant’s trial. Further, policy arguments suggest that a defendant can only be protected from abuse if the Fifth Amendment protects against self-incrimination at criminal proceedings prior to trial.

            Considering that the Supreme Court ultimately found that it improvidently granted certiorari in Vogt’s case, it is unclear at what time the Court will consider settling the Circuit split regarding the commencement of a “criminal case.”

[1] Vogt v. City of Hays, Kan., CIV.A. 15-1150-MLB, 2015 WL 5730331, at *1 (D. Kan. Sept. 30, 2015).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at *2.

[14] Id. at *5.

[15] U.S. Const. amend. V.

[16] “Fifth Amendment: Rights of Persons,” Government Publishing Office, https://www.gpo.gov/fdsys/pkg/GPO-CONAN-2013/pdf/GPO-CONAN-2013-10-6.pdf (accessed November 22, 2018); see also, The Editors of Encyclopaedia Britannica, “Court of Star Chamber,” Encyclopaedia Britannica, https://www.britannica.com/topic/Court-of-Star-Chamber (accessed November 28, 2018) (describing the Star Chamber as a court supporting the king’s prerogatives and lacking safeguards offered by common-law procedures).

[17] Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 415 (1966).

[18] Ullmann v. United States, 350 U.S. 422, 438-39 (1956)

[19] Miranda v. Arizona, 384 U.S. 436, 444 (1966)

[20] See New York v. Quarles, 467 U.S. 649, 656 (1984) (finding that “the doctrinal underpinnings of Miranda [do not] require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety”).

[21] See Harris v. New York, 401 U.S. 222, 222 (1971) (holding that “[s]tatement[s] inadmissible against a defendant in the prosecution’s case in chief…may…be used for impeachment purposes”).

[22] U.S. v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990).

[23] Mitchell v. U.S., 526 U.S. 314, 330 (1999).

[24] Chavez v. Martinez, 538 U.S. 760, 767 (2003).

[25] Id.

[26] Id. at 789-90.

[27] Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003).

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 553.

[32] Id.

[33] Id. at 557-58.

[34] Id. at 558.

[35] Id. (citing Chavez v. Martinez, 538 U.S. 760, 789 (2003)).

[36] Id.

[37] Vogt v. City of Hays, Kansas, 844 F.3d 1235, 1241-42 (10th Cir. 2017).

[38] Id. at 1242.

[39] Id.; see U.S. Const. amend. VII.

[40] Id.

[41] Id. (citing United States v. Sprague, 282 U.S. 716, 731).

[42] Id. at 1243 (citing Noah Webster, CaseAn American Dictionary of the English Language (1st ed. 1828)).

[43] Id. (citing Noah Webster, CauseAn American Dictionary of the English Language (1st ed. 1828)).

[44] Id. at 1243-44 (citing Blyew v. United States, 80 U.S. 581, 595 (1871)).

[45] Id. at 1244.

[46] Id.

[47] Id. at 1245; see Ferguson v. Georgia, 365 U.S. 570, 574 (1961)).

[48] Id.

[49] Id. at 1252.

[50] Id. at 1240.

[51] Chavez, 538 U.S. at 791.

[52] Vogt, 844 F.3d at 1243 (citing Noah Webster, CaseAn American Dictionary of the English Language (1st ed. 1828)).

[53] Brief for the National Association of Criminal Defense Lawyers and American Civil Liberties Union as Amicus Curiae, p. 18, Vogt. v. City of Hays, Kansas, 844 F.3d 1235 (2017).

[54] Id. at p. 19.

[55] Id. at p. 20.

[56] Id. at p. 22.

[57] Id. at p. 23.

Until Death Do You Part? The Strange Case of the Spectral Spouse

Kyle Green, Associate Member, University of Cincinnati Law Review

An Irish Woman has called it quits with the ghost of the pirate that inspired Jack Sparrow from Pirates of the Caribbean movie franchise after two years of “marriage.”[1] After watching the popular movie franchise, Amanda Teague found herself enamored by Captain Jack Sparrow. Amanda Teague even went as far as changing her appearance to look like the pirates from the movie and changing her name to include “Sparrow.”[2]This still wasn’t enough for Ms. Teague though. She claims a 300-year-old Haitian ghost contacted her shortly after her name change, resulting in a consensual sexual relationship between the two. The two later married in international waters after Amanda told the ghost she needed a more committed relationship.[3] In January 2017, Amanda, her ghostly groom, her adult children, and a registered Irish marriage officiant set sail for international waters for a wedding ceremony where their marriage had a better chance of legal marriage status, since posthumous marriage is not explicitly afforded such a right in the Northern Ireland or the U.K.[4] 

Unfortunately, this love story didn’t last long, as the couple, in particular Ms. Teague, filed for divorce after just a year of marriage.[5] IrishCentral reports that she cites the difficulties of maintaining contact with the medium as major reason for their breakup and urges all those interested in the supernatural to take that into consideration before entering a relationship with other worldly entities.[6] People say communication is key to a happy marriage, perhaps her ghostly husband had too many skeletons in the closet to maintain a lasting relationship. It is worth noting that the divorce announcement comes around the same time she is set to release her book detailing her experience with the pirate-ghost husband titled “A Life You Will Remember”.

            There is some debate as to whether Ms. Teague was legally married in the first place, even if she traveled to international waters. Marriages in international water can generally be upheld as long as they come attached with the correct formalities, such as an affidavit from the ship’s captain that they traveled to the correct area of the ocean, and signed statements from both parties of the marriage that they intended it to legally bind them in their country of citizenship; the latter requirement seems to be lacking in this case.[7] While some countries like France will uphold a posthumous marriage in extreme circumstances through Presidential approval, Northern Ireland does not include such an exception.[8] For a marriage to be legal in Northern Ireland, both parties must be “capable of understanding the nature of a marriage ceremony and of agreeing to themarriage.”[9] Since there is no way to confirm that the ghostly husband consented to the marriage with Amanda, it would be difficult to understand how they could confer legal status on the arrangement.

            If marrying a 300 year old pirate ghost made Amanda happy, whether conferred legal status or not, then more power to her. Countries are entitled to set limits on who can enjoy the legal benefits of marriage status, but for Amanda, this was less about the tax benefits and more about the love and joy she believed she felt for a pirate ghost she became enamored with. If anything, she might end up saving herself time and money by not being given legal status. Instead of a lengthy court proceeding on how to split her assets and the pirate ghost’s plunder, Amanda Teague can simply change her name back and find a captain with a ship worthier of her vessel.  Perhaps this is all part of a larger marketing plan for Amanda Teague’s book release, but is it so hard to believe someone could want to find love in a ghostly entity? After all, Amanda’s relationship with the pirate ghost might be more real than most of the relationship on the internet in this day and age.

[1] Frances Mulraney. Irish Woman who marries 300-year-old pirate ghost announces break up. https://www.irishcentral.com/news/pirate-ghost-husband-breakup (December 11, 2018).

[2] Frances Mulraney. Irish Woman who marries 300-year-old pirate ghost announces break up. https://www.irishcentral.com/news/pirate-ghost-husband-breakup (December 11, 2018).

[3] Frances Mulraney. Irish Woman who marries 300-year-old pirate ghost announces break up. https://www.irishcentral.com/news/pirate-ghost-husband-breakup (December 11, 2018).

[4] Dan Macguill. Did an Irish Woman Legally Marry the Ghost of a Pirate from the 1700s?. https://www.snopes.com/fact-check/ghost-pirate-marriage/

[5] Dan Macguill. Did an Irish Woman Legally Marry the Ghost of a Pirate from the 1700s?. https://www.snopes.com/fact-check/ghost-pirate-marriage/

[6] Frances Mulraney. Irish Woman who marries 300-year-old pirate ghost announces break up. https://www.irishcentral.com/news/pirate-ghost-husband-breakup (December 11, 2018).

[7] Dan Macguill. Did an Irish Woman Legally Marry the Ghost of a Pirate from the 1700s?. https://www.snopes.com/fact-check/ghost-pirate-marriage/

[8] Dan Macguill. Did an Irish Woman Legally Marry the Ghost of a Pirate from the 1700s?. https://www.snopes.com/fact-check/ghost-pirate-marriage/. citing LegiFrance. “Code Civil – Article 171” LegiFrance. May 17, 2011.

[9] Nidirect Government Services. Marriage and Registration. https://www.nidirect.gov.uk/articles/guidance-marriage-procedures-northern-ireland. (

The Future of Coal-Fired Power Plant Regulation

John Simon, Associate Member, University of Cincinnati Law Review

Michigan v. E.P.A.

In 2015, the Supreme Court of the United States heard oral arguments in Michigan v. E.P.A., a case involving a challenge to the EPA’s regulatory standards imposed under the Obama administration.

Under the Clean Air Act, the EPA has the authority to regulate stationary and moving sources of air pollution through various programs; in 1990, the Clean Air Act Amendments established the National Emissions Standards for Hazardous Air Pollutants Program (NESHAP) which regulates stationary source emissions for “‘hazardous air pollutants.’”[1] While the program generally applies depending upon a source’s total pollution, Congress established a special procedure for coal-fired power plants; Congress directed the EPA to conduct “‘a study of the hazards to public health reasonably anticipated to occur as a result of emissions by [power plants] of [hazardous air pollutants] after imposition of the requirements of this chapter.’”[2] If the EPA were to determine, after completion of the study, that regulation is “appropriate and necessary” then it “‘shall regulate [power plants] under [§ 7412].’”[3]

In 1998, the EPA concluded the study, and, in 2000, the EPA determined that regulation of coal-fired power plants was “appropriate and necessary.”[4] The EPA reaffirmed this determination in 2012 finding that regulation was appropriate because coal-fired power plants emit mercury and other harmful air pollutants that pose a threat to human health and the environment, and power plant emissions can be controlled.[5] Further, the EPA determined that regulation was necessary because the Clean Air Act’s other regulatory plans did not offer adequate protection.[6]

Under an Executive Order, the EPA issued a Regulatory Impact Analysis (RIA) along with the regulations.[7] The RIA estimated that the regulations would require power plants to spend approximately $9.7 billion annually while the quantifiable amount of benefits totaled between $4 million and $6 million.[8] The EPA noted other ancillary benefits—including reducing the emissions of particulate matter and sulfur dioxide—which increased the quantifiable benefits to $37 billion to $90 billion.[9] However, the EPA conceded that the RIA did not impact its decision to regulate power plants.[10]

The Court ultimately determined that Federal administrative agencies are required to engage in “reasoned decision making.”[11] Further, the Court held that “[t]he Agency must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is appropriate and necessary.”[12] Therefore, the EPA’s failure to consider cost when deciding to regulating power plants was unreasonable.

The E.P.A.’s Recently Proposed Plan

On December 28, 2018, the EPA announced its proposed plan to implement new rules regarding the regulation of hazardous air pollutants. Following the Supreme Court’s decision in Michigan v. E.P.A., the EPA concluded that the Obama administration’s regulation of hazardous air pollutant emissions from power plants were too costly to be considered “appropriate and necessary.”[13]

While the proposed rules will not repeal existing EPA rules, the proposed rules will make the creation of new regulations more challenging.[14] In a statement written by Howard Learner, executive director of the Environmental Law and Policy Center, “The Trump EPA’s proposal undermines its Mercury and Air Toxic Standards (MATS) by retroactively recalculating the costs and benefits of the rule, which most utilities have already fully implemented. The misguided proposed changes leave MATS legally vulnerable and foolishly make it harder to strengthen mercury pollution reduction standards in the future…”[15] Other groups, including the Murray Energy Corporation and the National Mining Association, have praised the proposed rule.[16]

The proposed rule will be published in the Federal Register for sixty days so that the public may submit comments.[17] After the sixty-day period, a final rule will be issued.[18]

[1] Michigan v. E.P.A., 135 S. Ct. 2699, 2704 (2015).

[2] Id. at 2705.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 2607.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 2711.

[13] Lisa Friedman, New E.P.A. Plan Could Free Coal Plants to Release More Mercury Into the Air, The New York Times (Dec. 28, 2018), https://www.nytimes.com/2018/12/28/climate/mercury-coal-pollution-regulations.html.

[14] Id.

[15] EPA’s Proposed Weakening of Mercury Pollution Reduction Standards (MATS) Threatens Children’s and Women’s Health, and Great Lakes Fisheries, Environmental Law & Policy Center (Dec. 28, 2018), http://elpc.org/newsroom/press-releases/epas-proposed-weakening-mercury-pollution-reduction-standards-mats-threatens-childrens-womens-health-great-lakes-fisheries/.

[16] Friedman, supra note, 13.

[17] Id.

[18] Id.

Whitaker’s Comments on Marbury v. Madison: Absurd or within the Mainstream?

Taylor Beckham, Associate Member, University of Cincinnati Law Review


Since President Trump’s appointment of Matthew Whitaker as acting attorney general, political commentators have expressed grave concerns about Whitaker’s qualifications and political beliefs.[1] Among the most salient of those apprehensions involve Whitaker’s views on the role of the judicial branch, especially the Supreme Court. Various editorials have been written on Whitaker; some question his understanding of the judiciary, while others state that adherence to his positions could cause a constitutional crisis.[2] Specifically, many articles discuss Whitaker’s statements on the landmark Supreme Court case, Marbury v. Madison, and his opinions on judicial review.[3]

In 2014, Whitaker sought and failed to receive the Republican nomination for an Iowa Senate seat. During this campaign, he spoke with an Iowa blog, Caffeinated Thoughts. In the twenty-question interview, Whitaker was asked: “What’s the role of the courts and what is or what are some of the worst decisions in the Supreme Court’s history?”[4] Whitaker responded:

The courts are supposed to be the inferior branch of our three branches of government. We have unfortunately off loaded many of our tough public policy issues onto the court and they’ve decided hem [sic]. Unelected judges are deciding many of the issues of the day. There are so many (bad rulings). I would start with the idea of Marbury v. Madison [sic]. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.[5]

Interpretations of this quote range from the ridiculous to well-within mainstream thought. Whitaker could have been expanding on a long-established line of academic discourse on Marbury and judicial review. Other understandings of Whitaker’s comment are much more drastic, reading it to suggest the Supreme Court has no ability to check the executive or legislative branches. It is insufficient to simply assume the most inflammatory interpretation of Whitaker’s remarks is the correct understanding. A deeper dive into his statement’s possible meanings may be helpful in elucidating Whitaker’s views on the judicial branch.

This article is not intended to serve as a defense of Whitaker’s appointment as acting attorney general. Some of the views he has expressed are problematic and arguably inappropriate for a person in his role. Still, his statement in the pertinent blog post should be read as a whole, rather than parsed, as it has been by many media sources. His comments on Marbury, while inarticulately phrased, should not necessarily be considered radical in the existing scope of academic discussion.  This article explains why Whitaker’s statement may not be wholly unfounded or removed from conventional academic thought; this article also recognizes that Whitaker’s failure to clarify his comment will leave him vulnerable to criticism.

The Importance of Marbury v. Madison

Marbury inhabits a unique space in American jurisprudence. In the events preceding the case, President John Adams attempted to appoint a number of judges before the inauguration of president-elect Thomas Jefferson. Due to the rushed nature of the appointments, several judges were not effectively appointed by the required date, including William Marbury. Marbury brought suit against the Secretary of State to compel commission of his judgeship, claiming that section 13 of the Judiciary Act of 1789 gave the Supreme Court original jurisdiction over requests for mandamus.[6]

The Supreme Court, led by Chief Justice John Marshall, held that Marbury was owed his commission.[7] The Court also found, however, that its jurisdiction over the matter was invalid.[8] The Court held that section 13 of the Judiciary Act was unconstitutional and violated Article III of the Constitution by enlarging the judicial power. For this violation, the Court declared the relevant section of the Act void.[9] Marshall then justified the Court’s authority to declare acts of Congress and executive orders unconstitutional. In essence, Marshall used a political controversy to establish the power of judicial review, as this power was not explicitly granted by the Constitution.

Marbury holds a vital role in the interaction of the three branches of government. Judicial review affects our nation’s most important issues. When considering the significance of this decision, it is not surprising Whitaker’s suggestion of overturning Marbury has caused so much controversy. Indeed, overturning Marbury would have dramatic effects. Speculation about these effects has clouded the true meaning of Whitaker’s remarks. Whitaker could simply be expanding on a long-established line of academic discourse on Marbury and judicial review. Other understandings of Whitaker’s comment are much more drastic, reading it to suggest the Supreme Court has no ability to check the executive or legislative branches.

Contextualizing Whitaker’s Comments in the Debate on Judicial Review

Marbury v. Madison has never been immune from criticism.

Marbury has been the subject of scrutiny since it was decided, with strict and broad interpretations of its holding prevailing at different times. In the most straightforward argument for judicial review of the constitutionality of federal laws, Marshall directed attention to the text of Article III, which grants the Supreme Court jurisdiction over cases arising under the Constitution.[10] Marshall further elaborated on the importance of the United States’ written constitution. He argued that the Framers could not have intended the Court to allow laws of Congress to contradict and prevail over the Constitution. Therefore, it was essential the judicial branch be able to review laws passed by Congress and render them void for being unconstitutional.[11]

This is not, however, the only interpretation of Article III. Scholars have argued that the grant of jurisdiction to cases arising under the Constitution does not refer to the power to render unconstitutional laws void. Instead, it confers to the judiciary the power to determine if state laws contradict the Constitution, and to determine how to apply federal law to cases before the court.[12] Whitaker does not articulate this position in the much-discussed interview. Still, his references to the Supreme Court improperly being the final arbiter of the Constitution may fit well within an already-existing argument; proponents of this argument, while contradicting precedent, generally still believe the judiciary holds a significant role in our government.

Whitaker’s views on judicial review are not especially unusual, as theories on the power of the judiciary vary widely.

The power of the judiciary branch has been the subject of significant discussion, with academics and commentators advocating various viewpoints, such as judicial activism, judicial minimalism, and judicial originalism. Judicial activists argue the Supreme Court should use its knowledge of societal beliefs and opinion in interpret the constitutionality of cases accordingly.[13] Advocates for judicial minimalism, by contrast, believe the Supreme Court should avoid broad rulings and decide cases on an individual basis.[14] Judicial originalists maintain that the Supreme Court should utilize only the explicit meaning of the Constitution of the time of its ratification to decide the cases before it.[15]

Considered within the debate on the role of the Supreme Court, pieces of Whitaker’s statement are not controversial. Whitaker’s statement that the Supreme Court has been granted too broad of power in deciding policy issues is not a novel thought.[16] Even at the time of the country’s founding, judicial review was not an unquestioned power of the Supreme Court.[17]  Whitaker’s opinion is also not necessarily partisan, as both liberals and conservatives have espoused similar views, disparaging legislation from the bench.[18] Proponents of judicial activism who are familiar with existing debates are unlikely to be shocked by the argument that the Supreme Court has exercised too much authority over issues of public policy; resistance to judicial involvement on public policy has always been a part of the debate surrounding the judicial role. Politicians can avoid accountability for tough public policy issues by shifting focus to Supreme Court rulings. Indeed, politicians and governmental officials often use previous Supreme Court decisions to avoid taking a stance or admitting a plan to change a particular issue.[19] It is not uncommon for an official to describe a social issue as “settled law” rather than discussing the future of the particular policy.[20] Regardless of where a person’s belief falls on the spectrum of judicial review, Whitaker’s concerns on the judicial role in deciding policy are not new, or even uncommon, in the already existing debate.

Whitaker’s view of the judiciary as the “inferior” branch of government is problematic and indicates his lack of consistency.

The first sentence from Whitaker’s widely circulated interview states that the judiciary is intended to be the “inferior” branch of government.[21] While this sentence has received less attention than Whitaker’s comments on Marbury, it is arguably the more problematic portion of Whitaker’s statement. There is no constitutional basis to suggest the Framers intended the judiciary branch to be inferior to the other branches of government, particularly not in the explanation of the judiciary branch in Article III.[22] The Federalist Papers clarify that the three branches of government were meant to exist independently, but still retain the ability to check abuses of power by the other branches.[23] It is possible Whitaker was attempting to appeal to those who believe the Supreme Court has wrongfully assumed a role of supremacy over the other branches of government.[24]

Whitaker’s commitment to this declaration is also called into question given his answer to an earlier question in the Caffeinated Thoughts blog, where he was asked how law was created. He responded: “Obviously the courts have a role, although I don’t believe the courts should make law. I’ve talked about that many times before. Much like Chief Justice John Roberts says, the courts should call balls and strikes[.]”[25] This statement does not imply that courts are meant to be subordinate to the other branches of government. Instead, it falls in line with the view that the judicial branch is only meant to enforce the law and challenges judge-made law. Regardless of which of these views Whitaker truly meant to espouse, the contradictions within the same interview demonstrate a lack of carefulness that will invite criticism while he serves as acting attorney general.

Although there has not been significant discussion on this, Whitaker has left himself open to criticism from judicial originalists as well. Whitaker fails to clarify what he thinks would occur as a result of discarding Marbury. In Marbury, Marshall rejected interpretation of Article III where Congress could be allowed to contradict the written constitution.[26] If overturning Marbury included overturning this interpretation of Article III, Congress could be given significant opportunities to contradict the Constitution in lawmaking or to interpret the Constitution with flexibility. This view directly opposes beliefs espoused by advocates for Constitutional originalism. Therefore, Whitaker’s statement is prone to partisan criticisms from all sides, illustrating its problematic nature.


The reaction to Whitaker’s stance on judicial review may stem from the modern understanding of judicial activism and the Supreme Court. It is apparent that the Supreme Court has fundamentally altered the rights of the American people. The decisions made by the Supreme Court in the past fifty years have affected highly personal issues, such as the right to marriage, abortion, and healthcare.[27] People are naturally going to be protective of a vehicle for these rights. Yet the Supreme Court is fallible, and has made patently horrible decisions, regardless of political viewpoint—Whitaker’s statement may only raise the spectre of these issues and problematic cases.[28]

Regardless of his intentions or the true meaning of his 2014 interview, Whitaker was irresponsible by being so unclear in his statements about the judicial branch. As time passes since his appointment as acting attorney general, more and more articles are being written about his viewpoints, parsing his words and burying the original interview. While much of the criticism towards Whitaker has been fairly partisan in nature, the ambiguity of his statements has left him vulnerable to well-deserved scrutiny from all political parties. With the amount of current interest surrounding his role, this criticism is unlikely to end soon. 

[1] E.q. AnneMarimow, Maryland Challenges Legality of Whitaker’s Appointment as Acting U.S. Attorney General, Washington Post (Nov. 13, 2018), https://tinyurl.com/y97sywfv; Acting AG Matt Whitaker’s Qualifications Come Under Fire, San Diego Union Tribune (Nov. 9, 2018), https://www.sandiegouniontribune.com/opinion/letters-to-the-editor/sd-le-matt-whitaker-trump-attorney-general-utak-20181109-story.html; Rekha Basu, Matthew Whitaker’s Troubling Opinion: Judges Need a Biblical View, Des Moines Register (May 4, 2018), https://www.desmoinesregister.com/story/opinion/columnists/rekha-basu/2018/11/07/matt-whitakers-troubling-opinion-judges-need-biblical-view/1923393002/.

[2] E.q. Andrew Coan and Tony Massaro, Matthew Whitaker’s Supreme Court Positions are Incoherent, May Cause Constitutional Crisis, USA Today (Nov. 14, 2018), https://www.usatoday.com/story/opinion/2018/11/14/matthew-whitaker-acting-attorney-general-supreme-court-constitutional-crisis-column/1977742002/.

[3] E.q. Charlie Savage, Acting Attorney General Matthew G. Whitaker Once Criticized Supreme Court’s Power, The New York Times (Nov. 8, 2018), https://www.nytimes.com/2018/11/08/us/politics/matthew-whitaker-courts-inferior.html; Alex Hubbard, Interim Attorney General Matthew Whitaker’s View on Marbury Decision is Baffling, Tennessean (Nov. 16, 2018),  https://www.tennessean.com/story/opinion/columnists/2018/11/16/matthew-whitaker-view-marbury-supreme-court-decision/2006821002/.

[4] Jacob Hall, Iowa U.S. Senate Candidate Profile: Q&A with Matt Whitaker, Caffeinated Thoughts (May 21, 2014), https://caffeinatedthoughts.com/2014/05/iowa-u-s-senate-candidate-profile-qa-matt-whitaker/.

[5] Id.

[6] Erwin Chemerinsky, Constitutional Law: Principles and Policies §2.2.1 (5th ed. 2015).

[7] Marbury v. Madison, 5 U.S. 137, 168 (1803).

[8] Id. at 176.

[9] Id.

[10] USCS Const. Art. III, § 2, Cl 1.

[11] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178-179 (1803).

[12]Erwin Chemerinsky, Constitutional Law: Principles and Policies §2.2.1 (5th ed. 2015), citing David Currie, Federal Courts: Cases and Materials 27 (4th ed. 1990).

[13] Christopher Wolfe, From Judicial Activism to Constitutional interpretation: The Transformation of Judicial Review in America, The Heritage Foundation (March 3, 2006) https://www.heritage.org/the-constitution/report/constitutional-interpretation-judicial-activism-the-transformation-judicial.

[14] John Allison, Originalism v. Minimalism, Cato Institute (Nov. 2014) https://www.cato.org/policy-report/novemberdecember-2014/originalism-v-minimalism.

[15] Id.

[16] E.q. Jay Cost, The Senate and the  Supreme Court Have Been Granted Too Much Power, National Review (Sep. 17, 2018) https://www.nationalreview.com/2018/09/senate-supreme-court-granted-too-much-power/; Ryan McMaken, The Supreme Court is Much Too Powerful, Mises Wire (July 10, 2018) https://mises.org/wire/supreme-court-much-too-powerful; Kim Holmes, Has the Supreme Court Become too Powerful? Heritage Foundation (Feb. 25, 2016) https://www.heritage.org/crime-and-justice/commentary/has-the-supreme-court-become-too-powerful.

[17] The Anti-Federalist Papers XI (Robert Yates) (Constitution Society).

[18] See generally, Cass Sunstein, One Case at a Time: Judicial Minimalism in the Supreme Court (1999); Justice Sandra Day O’Connor: Trends Toward Judicial Restraint, 42 Wash. & Lee L. Rev. 1185 (1985), https://scholarlycommons.law.wlu.edu/wlulr/vol42/iss4/5.

[19] Benjamin Siegel, GOP President-Elect Donald Trump Says Same-Sex Marriage is ‘Settled’ Law, ABC News (Nov. 13, 2016), https://abcnews.go.com/Politics/gop-president-elect-donald-trump-sex-marriage-settled/story?id=43513067.

[20] Nancy Northup, ‘Settled Law’ is not enough to protect Roe v. Wade, The Hill (Sep. 04, 2018),  https://thehill.com/opinion/judiciary/404934-settled-law-is-not-enough-to-protect-roe-v-wade.

[21] Jacob Hall, Iowa U.S. Senate Candidate Profile: Q&A with Matt Whitaker, Caffeinated Thoughts (May 21, 2014), https://caffeinatedthoughts.com/2014/05/iowa-u-s-senate-candidate-profile-qa-matt-whitaker/.

[22] USCS Const. Art. III.

[23] The Federalist No. 51(James Madison)(New York Packet). But see Federalist No. 78 (Alexander Hamilton)(The Avalon Project, Yale Law School). (Hamilton argues the judiciary is the weakest branch and must take care to prevent being overrun by the other branches of government).

[24] See generally: Michael S. Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706 (2003). https://repository.law.umich.edu/mlr/vol101/iss8/7; Mel Topf, A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy (2011).

[25] Jacob Hall, Iowa U.S. Senate Candidate Profile: Q&A with Matt Whitaker, Caffeinated Thoughts (May 21, 2014), https://caffeinatedthoughts.com/2014/05/iowa-u-s-senate-candidate-profile-qa-matt-whitaker/.

[26] Marbury v. Madison, 5 U.S. 137, 178 (1803).

[27] See generally: Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566 (2012).

[28] Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138 (1896); Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944); United States v. Stanley, 109 U.S. 3, 3 S. Ct. 18 (1883).