The Federal Acquiescence to States’ Decisions on Marijuana

LEGAL Colorado Marijuana Grow” by Brett Levin Photography is licensed under CC BY 2.0.

Theron Anderson, Associate Member, University of Cincinnati Law Review

I. Introduction

As the country matures, the views on marijuana among the states have changed. Over a fifth of the states have taken the initiative to relax the outright ban on marijuana. Discussions of marijuana usually fall within the topics of medical or recreational use. This blog will discuss the topic of recreational use.  

Changing policy on marijuana has raised issues of how to deal with the effects of the previous system. Importantly, the change of laws in states that decriminalized marijuana has pushed them to handle the prior marijuana convictions for offenders to the old policy.[1] However, states wishing to help prior marijuana offenders may run into roadblocks because of the Constitution and recent Supreme Court decisions. When interpreting the Constitution, the Supremacy Clause shows the federal government’s authority over this topic.[2] So how long will this federal government acquiesce last?

II. Laws Governing Recreational Marijuana

Since the turn of the century, federal and state views on the use of recreational marijuana have slowly diverged. The federal view on marijuana, in general, has been steadfast since 1930.[3] This view is materialized in the Controlled Substances Act (“CSA”). Under the CSA, “it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”[4] Marijuana fell within the grasp of this legislation when it was labelled a “Schedule I controlled substance.”[5] A Schedule I controlled substance is a drug or substance that “has a high potential for abuse,” “has no currently accepted medical use in treatment in the United States,” and has no “accepted safety for use . . . under medical supervision.”[6]

The Supreme Court recently strengthened the federal government control over recreational marijuana use in the most recent attack on the validity of the CSA in Gonzales v. Raich.[7] The Court ruled that Congress has the “power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.”[8] This authority is given to Congress through the Commerce Clause of the Constitution and the Court ruled that marijuana use fit within that “class of activities.”[9]

Despite this resolute stance by the federal government, the states have taken the matter into their own hands. In the past ten years, eleven states and Washington, D.C., have went against the federal view and legalized marijuana for recreational use.[10] The list of states is comprised of Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington.[11] These about-faces from the federal legislation were mostly implemented through ballot initiatives by the state population, and a couple through state legislation.[12]

III. Effects of Past Marijuana Convictions

In states where the recreational use of marijuana is now legal, states are faced with how to deal with prior convictions from the past laws prohibiting the activity. The effects of marijuana convictions on the future lives of the offenders is striking. Those convicted by marijuana laws of the states’ old regime struggle with finding adequate housing as well as a job to finance that housing.[13] In the state of Vermont, a jurisdiction that permits the recreational use of marijuana, Glyn Wilkinson, convicted twice for his marijuana activity, has found his past marijuana convictions were roadblocks to his search for jobs across the border in Canada and restricted his constitutional right to bear arms.[14] These burdens have encouraged some states to take action.

IV. State’s Reaction 

Illinois was one of the first states to take initiative to set up a system to cure the burdens created by past convictions relating to marijuana. In the Cannabis Regulation and Tax Act passed by Illinois, lawmakers who legalized the possession and commercial sale of marijuana included a “sweeping criminal justice component.”[15] The purpose of this bill was to “expunge[e] the records of potentially hundreds of thousands Illinois residents who have previously been convicted of possessing marijuana under previous laws.”[16] The governor labeled the bill “the most equity-centric approach in the nation.”[17]

The remarks of the Illinois governor are not hyperbolic. Other states have wrestled with the idea of a system for dealing with the prior convictions of succeeded marijuana laws, but a result mirroring Illinois has not been reached. For example, in California’s legislation, the expungement or reduction of old convictions was allowed, but there was not an adequate system in place to effectuate that end.[18] Likewise, in Colorado legislation, the past convictions could be sealed, but not erased.[19] A similar bill was passed in Oregon.[20]

V. Analysis

The initiative by the states to legalize recreational marijuana and cure past convictions may be good news to some, but the discrepancy between federal and state law raise significant questions due to the constitutional pillar establishing the Constitution as the “supreme Law of the Land.”[21] The discrepancy is cured through modern day federal acquiescence to states’ stance on marijuana legalization as long as the individuals  do not move their activity across state lines.[22] The federal acquiescence is evidenced through the congressional prohibition on using funds to prevent states from implementing marijuana laws of their own.[23]

What would happen if the federal government decided to cease this acquiescence and end this push for the legalization of marijuana and equitable relief for prior convictions? Federal law would be the likely victor against the will of the states. As the Court stated in Gonzales v. Raich: “[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.”[24]

A quick rebut by the states to the Court’s statement could be, “we have rights too,” and, “what about the Tenth Amendment?” The states would be correct that the tenth amendment does give them some rights, but not under these circumstances.[25] The Tenth Amendment states “[t]he powers not delegated to the United States, nor prohibited by [the Constitution] to the States, are reserved to the States respectively, or to the people.”[26] However, the portion of the amendment that gives the states the short stick regarding marijuana legalization is “powers not delegated to the United States.”[27] In Gonzales v.  Raich, the Court ruled Congress was within their delegated power under the Commerce Clause when regulating the activity of marijuana and that “state action cannot circumscribe Congress’ plenary commerce power.”[28] Thus, The Supreme Court, through the Commerce Clause, has delegated marijuana regulation to the federal government, if they so choose to use it.

VI. Conclusion

While the states have made great strides to create legislation that better reflects the current views of their residents and reduce the effects caused by the prior system, the issue does not correctly fit within the authority delegated to it by the constitutional framework. It remains a question of whether the federal government will continue to stand on the sideline while these state discussions continue, and if it doesn’t, how long until it asserts its rightful authority?

[1]David Jordan, What happens to old marijuana convictions in states where it’s now legal? (June 22, 2018),

[2]U.S. VI, cl. 2.

[3]FindLaw legal writers and editors, Federal Marijuana Laws,

[4]21 U.S.C. § 841(a)(1) (1970).



[7]Gonzales v. Raich, 545 U.S. 1 (2005).

[8]Id. at 17.

[9] 29.

[10]Skye Gould, Illinois just became the first state to legalize marijuana sales through the legislature — here are all the states where marijuana is legal, June 25, 2019,



[13]Jordan, supra note 1.


[15]Gould, supra note 10, 410 Ill. Comp. Stat. 705/10 (2019). 



[18]Jordan, supra note 1.



[21]U.S. VI, cl. 2.

[22]Gould, supranote 8.


[24]Gonzales v. Raich, 545 U.S. 1, 29 (2005).

[25]U.S. Const. amend. X.



[28]See Gonzales, 545 U.S. at 29.

The Equal Credit Opportunity Act: Do Applicants = Guarantors?

Application Word Cloud” by is licensed under CC BY 2.0.

Margo Brandenburg, Associate Member, University of Cincinnati Law Review

I. Introduction

Last month marked the forty-fifth anniversary of the Equal Credit Opportunity Act (“ECOA”), passed by Congress in October 1974.[1] The ECOA was designed to protect consumers from discrimination in the financial marketplace.[2] As such, guarantors who feel they have been wrongfully discriminated against in a credit transaction have brought claims under the Act, hoping to find relief. These wronged guarantors have found the relief they were looking for in some jurisdictions, but not others. This jurisdictional discrepancy is attributed to the federal circuit split on whether a guarantor of a loan is deemed an “applicant” under the ECOA, and therefore, has standing to bring a claim. The Seventh, Eighth, and Eleventh Circuits found that guarantors should not be permitted to bring claims under the Act, while the Sixth Circuit thinks guarantors should be.[3]

Part II discusses both the ECOA itself, and Federal Reserve Regulation B, which was designed to enforce the provisions of the ECOA. Part III looks at the reasoning of Federal Circuits that have addressed the issue. Part IV argues that while deference to Regulation B’s interpretation of “applicant” is the proper policy decision, Congress did not intend for guarantors to be included in the definition of applicants under the ECOA. Part V concludes that courts should not give deference to Regulation B, but rather use the definition of applicants provided in the ECOA.

II. Background

A. The Equal Credit Opportunity Act

Congress enacted the ECOA in 1974 to reflect its stance that one’s marital status — along with race, gender, and other traits— is irrelevant to the determination of one’s credit.[4] In effect, the ECOA makes it “unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction on the basis of . . . sex or marital status,” among other personal traits.[5] The purpose of this Act was to “eradicate credit discrimination waged against women, especially married women who creditors traditionally refused to consider for individual credit.”[6]

Only “applicants” for credit may file lawsuits for ECOA violations.[7] Creditors who fail to comply with the rules of the ECOA may be liable to these applicants for actual damages, punitive damages, and attorneys’ fees.[8] Under the ECOA, the definition of an applicant is “any person who applies to a creditor directly for an extension, renewal, or continuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit.”[9] The ECOA’s definition of an “applicant” does not explicitly include guarantors of loans.[10]

Cases discussing whether or not Regulation B should be given deference typically begin with a spouse who is required to guaranty a loan made by their partner for some type of transaction.[11] The spouse then files an action against the creditor requiring their guaranty, arguing that the creditor discriminated against them on the basis of marital status, thus violating the ECOA. The question becomes whether these spouses have a right to even bring a claim under the ECOA due to the spouse’s status of a guarantor. To determine this, courts are tasked with determining if guarantor is included in the definition of an “applicant” under the ECOA.

B. Regulation B

Congress has mandated that the Consumer Financial Protection Bureau (“CFPB”), a bureau within the Federal Reserve system, take measures to carry out the purpose of the ECOA.[12] This falls in line with CFPB’s mission, which is to protect consumers from unlawful and deceptive practices and take action against companies who act unlawfully.[13] Federal Reserve Regulation B (“Regulation B”) resulted from Congress’s mandate tasking the CFPB to take action to enforce the Act.[14] Like the ECOA, Regulation B’s stated purpose is “to promote the availability of credit to all creditworthy applicants without regard to . . . sex or marital status,” among other characteristics.[15] Thus, Regulation B “prohibits creditor practices that discriminate on the basis of any of these factors.”[16]

In contrast to the ECOA, Regulation B explicitly includes guarantors in its definition of an “applicant” for credit.[17] According to Regulation B, “applicant” means “any person who requests or who has received an extension of credit from a creditor, and includes any person who is or may become contractually liable regarding an extension of credit.[18] The definition further provides that an “applicant” includes “guarantors, sureties, endorsers, and similar parties” under Regulation B.[19]

III. Applicable Legal Standard for Reviewing Agency Interpretation of a Statute

Which statutory definition of an “applicant” courts decide to follow is determinative on whether or not guarantors of a loan are able to sue. Thus, the question of which definition applies, the ECOA or the Regulation B definition, is an important one. Circuits are split on whether Regulation B’s definition of an applicant should be given deference. The Seventh, Eighth, and, most recently, the Eleventh Circuit says Regulation B should not be given deference. The Sixth Circuit says it should be.   

Regardless, all courts faced with determining whether to give deference to an administrative statute look first at the Act itself under the two-part framework announced in Chevron U.S.A. Inc. v. Nat’l Res. Def Council Inc..[20] First, a court applies the “traditional tools of statutory construction,” and asks whether it can tell that Congress has spoken clearly on the issue.[21] If the statute is deemed unambiguous, a court applies the statute according to its own terms, giving no deference to the administrative interpretation.[22] However, if the court determines the statute itself is silent or ambiguous, it must decide whether the administrative interpretation is “reasonable or based on a permissible construction of the statute.”[23] An administrative interpretation is deemed to be reasonable if it is “rational and consistent with the statute.”[24] The circuit split has arose from courts disagreeing on whether the term “applicants” is ambiguous as used in the statute.

A. RL BB Acquisition, LLC v. Bridgemill Commons Dev. Group, LLC[25]– The Sixth Circuit’s Interpretation

The Sixth Circuit conducted the Chevron test and first concluded that the statute is ambiguous regarding whether a guarantor is included in the definition of an “applicant.”[26] The court reasoned that the words, “applies” and “credit,” as used in the statutory of definition of “applicant,” were substantively ambiguous.[27]

With regard to the term “applies,” the court looked at the word’s official definition in the dictionary, defining the word “applies” as “[t]o make an approach to (a person) for information or aid.”[28] While addressing the fact that a guarantor does not typically directly approach a creditor herself to ask for credit, the court still found that the statute was ambiguous and could be interpreted to include those who offer support in order for a third party to receive credit.[29]

In interpreting “credit,” the Sixth Circuit explained that the language of the ECOA’s definition of credit indicates that an applicant and a debtor are not always the same person.[30] Thus, the court found that it would be a reasonable assumption that a guarantor could be included in the definition of an applicant per the ECOA statute.[31]

The Sixth Circuit then looked at the goals of the ECOA more broadly. Based on the fact that the Act is deemed to have “broad remedial goals” and it prohibits discrimination “with respect to any aspect of the credit transaction,” the court decided that the ECOA’s definition of the term “applicant” was written broad enough such that it could easily include a guarantor.[32] As such, the court determined that the ECOA definition was  sufficiently ambiguous under the first step of Chevron’s analysis.[33]

Thus, the court moved on to the second part of the Chevron test.[34] Because the court found that “at least one of the natural meanings of applicant includes guarantors,” it decided that Regulation B’s definition warranted deference.[35] Notably, the court stated it was “not troubled by the prospect of guarantors being made whole after a creditor violates the law.”[36]

B. The Majority’s Interpretation

The Seventh, Eighth, and Eleventh Circuits also begun the deference analysis with a form of the Chevron two-part test.[37] However, contrary to the Sixth Circuit’s conclusion, these courts found that the ECOA’s definition of applicants was not at all ambiguous, and therefore the second part of the Chevron test did not need to be addressed.[38] Specifically, the courts found that the ECOA’s definition gave a clear meaning of “applicants,” and unambiguously excluded guarantors from that definition.[39]

The Eighth Circuit stated that a guarantor engages in very different activities, receives different benefits, and becomes liable for different things than a credit “applicant” typically does in a credit transaction.[40] Additionally, with the ECOA’s goal of providing equal access to credit in mind, the court discussed that guarantors who claim they have been discriminated against by being included in a loan are not the group that writers of the Act intended to protect.[41] Quite the opposite, these guarantors have been improperly included into the credit process, rather than being denied access to credit.[42] Because the Act was not created to protect guarantors from being wrongfully included in the credit process, the court determined the purpose of the ECOA supported its interpretation.[43]

Additionally, the Seventh Circuit addressed this issue and came to the same conclusion as the Eighth.[44] In its analysis, the court noted that allowing guarantors to bring ECOA violations would “open vistas of liability that the Congress that enacted the Act would have been unlikely to accept.”[45] Even though typical ECOA violation lawsuits typically involve a modest amount of damages, if a person’s guaranty of a loan can be invalidated due to an ECOA violation, the creditor involved “may lose their entire debt.”[46]

 The most recent circuit court decision addressing this issue, Regions Bank v. Legal Outsource PA, went into a lengthy discussion of the provisions of the Act itself, detailing why the ECOA’s “applicant” definition does not include guarantors.[47] The Eleventh Circuit’s discussion included that the Act uses the term applicant in many of its provisions to only include one, single, “first-party” applicant.[48] What’s more, the court noted that the Act itself distinguishes between a first-party applicant and a third-party guarantor.[49] The court expressed its discomfort in concluding that a third-party guarantor, who offers a promise in support of a loan, submits an application for credit in any way.[50] This evidence, along with other indicators, was telling enough to convince the Eleventh Circuit that the Act’s definition of “applicant” purposefully did not include guarantors.[51]

To further expand on the issue, the Eleventh Circuit provided the example of a high school senior applying to her parent’s alma mater college.[52] Even if the student’s parents tell the college they will donate a large sum of money to the school provided they accept their daughter’s application for admittance, the parents are not considered “applicants” themselves, even though they supported their daughter in gaining admission.[53] Similarly, a guarantor who supported an applicant in gaining credit is not deemed to be an “applicant” for credit themselves.[54] Thus, the court determined that guarantors should not have standing to sue under the Act.[55]

IV. Analysis

Public policy favors deferring to Regulation B’s definition of an applicant due to the “overriding national policy against discrimination that underlies the [Act].”[56] The Act’s history centers around providing a means for individuals who were the subject of discrimination to gain credit and get the relief they deserve. When a creditor violates the law by discriminating against anyone in a credit transaction, the creditor should be held responsible for their actions. Guarantors should be able to hold these discriminatory creditors responsible, and be made whole again, as should any other individual involved in the credit transaction. The Sixth Circuit weighed this public policy consideration heavily in its decision to defer to Regulation B’s definition of an applicant in RL BB Acquisition.[57]

Despite the ECOA’s lofty goals, “[no] legislation pursues its purposes at all costs.”[58] While public policy considerations weigh in favor of deferring to Regulation B’s definition of applicants, this was not Congress’s intention when it created the ECOA. Congress created the right to sue under the ECOA to extend only to actual, first-party applicants. This is evidenced by the fact the Act was formulated by congress to protect those who were denied access to credit by discriminatory creditors. The Act does not contemplate guarantors who were included in the credit process against their wishes, even if they were included in a discriminatory manner. 

To find the Act ambiguous, and therefore, defer to Regulation B’s interpretation, would allow for creditor’s liability in areas that were not envisioned by Congress when the Act was created. It is unambiguous that Congress’s definition of applicants did not allude to a guarantor of a loan, and other provisions within the ECOA refer to an applicant as one, single person. Congress meant to not include guarantors in the definition of applicants. Due to the unambiguity in ECOA’s definition, there should be no question of what definition should be used. Given to the weighty factors favoring the statutory definition, the ECOA’s definition of “applicants” should be used when determining who has standing to sue under the Act. 

V. Conclusion

Moving forward, courts should defer to the majority of circuit’s interpretation of the ECOA provisions. Due to the sound arguments of the Seventh, Eighth, and Eleventh circuits, the circuit split regarding the ECOA definition should be resolved by courts using the definition of an “applicant” that is provided in the ECOA itself, rather than showing any deference to Regulation B. While it may be sound public policy to include guarantors in the definition of applicants, to do so would be against the intentions of Congress when the Act was created. Congress’s silence on a subject is not a useful guide to defer to an administrative definition.[59] If Congress decides that it is proper to give these wronged guarantors standing to sue under the ECOA, legislation should be enacted to reflect this change in the definition of an applicant under the ECOA. For now, though, wronged guarantors of loans do not have standing to sue discriminatory creditors under the ECOA, because, by definition, they are not “applicants” for credit.         


[2]Brian Kreiswirth & Anna-Marie Tabor, What you need to know about the Equal Credit Opportunity Act and how it can help you: Why it was passed and what it is, Consumer Financial Protection Bureau, (Oct. 31, 2016),

[3]See generally RL BB Acquisition, LLC v. Bridgemill Commons Dev. Group, LLC, 754 F.3d 380 (6th Cir. 2014); Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937 (8th Cir. 2014); Regions Bank v. Legal Outsource PA, 2019 U.S. App. LEXIS 26006 (11th Cir. 2019); Moran Foods v. Mid-Atlantic Market Development Co., LLC, 476 F.3d 436 (7th Cir. 2007).

[4]RL BB Acquisition, LLC v. Bridgemill Commons Dev. Group, LLC, 754 F.3d 380, 383 (6th Cir. 2014). 

[5]Equal Credit Opportunity Act, 15 U.S.C. § 1691 (2019).

[6]Id. (quoting Mays v. Buckeye Rural Elec. Coop., 277 F.3d 873, 876 (6th Cir. 2002)).


[8]15 U.S.C. § 1691(e).

[9]15 U.S.C. § 1691(a)(b).

[10]RL BB Acquisition, LLC, 754 F.3d at 383.

[11]E.g., Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937  (8th Cir. 2014); Regions Bank v. Legal Outsource PA, 936 F.3d 1184  (11th Cir. 2019); Moran Foods v. Mid-Atlantic Market Development Co., LLC, 476 F.3d 436 (7th Cir. 2007); Regions Bank v. Legal Outsource PA, 936 F.3d 1184 (11th Cir. 2019).

[12]Equal Credit Opportunity Act, 15 U.S.C. § 1691(b)(a) (2019).

[13]The Bureau, Consumer Financial Protection Bureau,

[14]RL BB Acquisition, LLC, 754 F.3d at 383.

[15]12 C.F.R. § 202.1.


[17]12 C.F.R. § 202.2(e).



[20]467 U.S. 837 (1984). See Regions Bank v. Legal Outsource PA, 936 F.3d 1184 (11th Cir. 2019). 

[21]Regions Bank v. Legal Outsource PA, 936 F.3d 1184 (11th Cir. 2019) (quoting Arevato v. United States AG, 659 F.3d 1303, 1307 (11th Cir. 2017). 




[25]754 F.3d 380, 384 (6th Cir. 2014).





[30]RL BB Acquisition, LLC, 754 F.3d at 384. (discussing that the ECOA defines credit as “the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment therefor.”) 





[35]Id. [internal quotations omitted]. 

[36]RL BB Acquisition, LLC, 754 F.3d at 384. 

[37]Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937, 941 (8th Cir. 2014); Regions Bank v. Legal Outsource PA, 2019 U.S. App. LEXIS 26006, *9 (11th Cir. 2019); Moran Foods v. Mid-Atlantic Market Development Co., LLC, 476 F.3d 436, 441 (7th Cir. 2007).

[38]Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937, 941 (8th Cir. 2014); Regions Bank v. Legal Outsource PA, 2019 U.S. App. LEXIS 26006, *27 (11th Cir. 2019); Moran Foods v. Mid-Atlantic Market Development Co., LLC, 476 F.3d 436, 441 (7th Cir. 2007).


[40]Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937, 942 (8th Cir. 2014);




[44]Moran Foods v. Mid-Atlantic Market Development Co., LLC, 476 F.3d 436, 441 (7th Cir. 2007).



[47]2019 U.S. App. LEXIS 26006 (11th Cir. 2019).

[48] *16.

[49] *18.

[50] *16-17.

[51]Regions Bank v. Legal Outsource PA, 2019 U.S. App. LEXIS 26006, *19-20 (11th Cir. 2019).

[52] *15.




[56] *20 (quoting Bros. v. First Leasing, 724 F.2d 789, 793 (9th Cir. 1984)). 

[57]754 F.3d at 384.

[58]Regions Bank v. Legal Outsource PA, 2019 U.S. App. LEXIS 26006, *27 (11th Cir. 2019) (quoting Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646-47 (1990)).

[59]Id. (quoting Zuber v. Allen, 396 U.S. 168, 185 (1969)). 

The Ohio Commissioner of Taxation May Yet Score on the Cincinnati Reds

Baseball in the grass” by Dennis is licensed under CC BY-NC-SA 2.0.

Nicolette Crouch, Associate Member, University of Cincinnati Law Review

This is the second article in a two-part discussion about Ohio sales and use tax. Click here to read an in-depth explanation of Cincinnati Reds, L.L.C. v. Testa.

I.  The Reds and Ohio Tax Authorities Might Head to Extra Innings

In 2018, the Ohio Supreme Court in Cincinnati Reds, L.L.C. v. Testa, Tax Comm’r absolved the Cincinnati Reds from owing use tax on the purchase of bobblehead statues and other promotional items that are distributed to fans at select home games.[1] Although the decision was a home run for the Reds, the club should consider the impact of the ruling on sales to purchasers of season tickets compared to purchasers of single game tickets. The court’s conclusion that attendees paid a portion of the ticket price for the right to receive promotional items does not apply as smoothly to season ticket holders who do not “purchase tickets to specific games with the expectation that they will receive a promotional item.”[2]

Accordingly, this article explains practical implications of the Reds decision on the club. Part II reviews the Reds majority opinion that found the Reds exempt from paying use tax on bobbleheads and other promotional items given away at select games.[3] Part III focuses on the dissenting opinion that contended that the Reds owed use tax on the purchase of promotional items from vendors.[4] Finally, Part IV explains why the Reds ruling leaves open the possibility that the Ohio Commissioner of Taxation (the “Commissioner”) will seek use tax on the portion of promotional items which go to season ticket holders.

II. Majority Opinion in Cincinnati Reds, L.L.C. v. Testa , Tax Comm’r

In Reds, the Ohio Supreme Court held that the Reds were exempt from paying use tax on bobbleheads and other promotional items that were distributed at select home games throughout the team’s season.[5] The case reached the Ohio Supreme Court after the Ohio Board of Tax Appeals (“BTA”) upheld the Commissioner’s determination that the Reds owed use tax on promotional items that the team bought from vendors.[6] At the BTA hearing, the Reds CFO explained that the Reds advertised bobbleheads and other promotions items like shirts, towels, bats, and player cards in advance of the game using radio, television, billboards, and fliers.[7] The Reds purchased these promotional items to entice fans to attend games and factored that cost into the price of all tickets sold during the season, along with other overheads costs.[8] This allowed the Reds to avoid charging higher ticket prices at games where bobbleheads were given away.[9]

The BTA found that the Reds owed use tax on the promotional items because the Reds purchased the items with the intent to give them to fans for free.[10] The Reds challenged this finding and argued that the promotional items were purchased for resale and therefore, the promotional items were exempt from sales and use tax under Ohio’s “sale for resale” exemption (“Resale Exemption”).[11]

Accordingly, the Ohio Supreme Court’s analysis focused on whether the Reds purchased the bobbleheads with the intent to resell them.[12] The court reasoned that in order for these promotional items to fall under the Resale Exemption, the Reds had to prove that the transactions met the definition of a “sale” under Ohio Revised Code (“ORC”) 5739.01(B)(1).[13] The court explained that a “sale” required the transfer of possession or title of the property for “consideration,” which has a specific legal meaning.[14] Thus, the Reds would prevail only if they could show that attendees provided consideration in exchange for the promotional items, instead of merely receiving the items for free.[15]

Although the BTA found that the attendees provided no consideration for the promotional items because attendees paid the same price to attend a game regardless of whether a promotional item was offered, the court sided with the Reds and held that attendees provided consideration for the promotional items.[16] The court concluded that attendees paid one portion of the ticket price for the right to attend the game and paid a separate portion of the ticket price for the right to receive the promotional item.[17] Accordingly, the court held that the Reds purchase of these bobbleheads and other promotional items met the requirements of the Resale Exemption and therefore, the Reds were not required to pay use tax on the bobbleheads when the Reds purchased them.[18]

III. Dissent in Cincinnati Reds, L.L.C. v. Testa , Tax Comm’r

Two of the seven justices dissented from the majority opinion in Reds.[19] The dissent contended that fans paid only for the right to attend games and therefore received the promotional items as free giveaways.[20] In other words, the dissent asserted that the Reds did not “resell” the promotional items to fan; rather, the transfer of promotional items to fans was gratuitous.[21]  

In support of this contention, the dissent pointed to the lack of consideration for the promotional items.[22] Because the cost of promotional items was built into all ticket prices for the season, every fan helped pay for promotional items, but not every fan received an item.[23] The dissent noted that more than 10,000 attendees did not receive promotional items at select games.[24] Further, the dissent explained, the Reds advertising for the promotional items stated that the items were available for “free” and that quantities were limited.[25]

The dissent explained that because the Reds offered and distributed promotional items gratuitously, the transfer was not a resale.[26] Therefore, the dissent contended that the promotional items were not exempt under the Resale exemption, and the Reds owed use tax on the purchase of promotional items from vendors.[27]

IV.  Season Ticket Purchases Versus Single Game Ticket Purchases

The Reds dissent shines light favorable to Ohio tax authorities on Reds fans who purchase season tickets instead of single game tickets. While the majority’s conclusion that single-game purchasers “purchase tickets to those specific games with the expectation that they will receive a promotional item,” the Commissioner would likely argue that the same is not true for purchasers of season tickets.[28] Distinct from single-game purchasers, season ticket purchasers buy tickets for games without “separate and explicit” consideration of promotional items.[29] Indeed, it is likely that many season ticket holders purchase season ticket packages months before the Reds advertise or even order promotional items. Therefore, season ticket purchasers do not pay a “separate portion” of the ticket price for the right to receive the promotional item.[30]

Within this context, season ticket purchasers who receive promotional items at select games receive them gratuitously, as the dissent claims. Under the Reds majority framework, the portion of promotional items purchased by the Reds which go to season ticket purchasers is not exempt under the Resale Exemption. Consequently, the Commissioner has grounds to argue that the Reds owe use tax on the percentage of promotional items which go to season ticket holders.

V.  Conclusion

The Reds sometimes sell more than 15,000 season tickets a year.[31] Accordingly, the club will likely resist owing use tax on the portion of promotional items purchased by the Reds which go to season ticket purchasers. The Reds should consider adding proper contractual guarantees to season ticket holder agreements to convert the transfer of promotional items into resales. Additionally, the Reds should ensure that each season ticket holder receives a promotional item at applicable games. Otherwise, season ticket purchasers who receive promotional items at select games receive them gratuitously.

But in the meantime, the Commissioner might seek use tax on the portion of promotional items going to season ticket holders. After all, in baseball, “[i]t ain’t over till it’s over.”[32]

[1]Cincinnati Reds, L.L.C. v. Testa, Tax Comm’r, 155 Ohio St. 3d 512, 2018-Ohio-4669, 122 N.E.3d 1178 (Ohio 2018).

[2]Id. at ¶ 21.

[3]Id. at ¶ 36.

[4]Id. at ¶ 55.

[5]Cincinnati Reds, L.L.C. v. Testa, Tax Comm’r, 155 Ohio St. 3d 512, 2018-Ohio-4669, 122 N.E.3d 1178, at ¶ 36.

[6]See id. at ¶ 4-13.

[7]Id. at ¶ 7.

[8]See id. at ¶ 9.


[10]Id. ¶ 11-12.

[11]See id. at ¶ 13-14; Ohio Rev. Code Ann.§ 5739.01(E) (West 2019); Ohio Rev. Code Ann.§ 5741.02(C)(2) (West 2018).

[12]Id. at ¶ 15.


[14]Id. at ¶ 16-17.

[15]Id. at ¶ 17.

[16]Id. at ¶ 18, 26.

[17]Id. at ¶ 24.

[18]Id. at ¶ 36.

[19]Id. at ¶ 38.

[20]Id. at ¶ 46.

[21]Id. at ¶ 49.


[23]Id. at ¶ 47.

[24]Id. at ¶ 44.



[27]Id. at ¶ 55.

[28]122 N.E.3d. at ¶ 21.

[29]Id. at¶ 32.

[30]122 N.E.3d. at ¶ 22.

[31]Steve Watkins, All-Star Game lifts Reds season ticket sales to GABP record, Cincinnati Business Courier (Apr. 1, 2015)

[32]Nate Scott, The 50 greatest Yogi Berra quotes, For the Win (Mar. 28, 2019)

The Achey Breaky “Heart Balm” Torts

808s & heartbreak” by Tony M. is licensed under CC BY-NC 2.0.

Chloe Knue, Associate Member, University of Cincinnati Law Review  

I. Introduction 

In North Carolina, all is not fair in love and war. The state made headlines in outlets like the Washington Post when “[a] woman’s [lover] [was] . . . ordered to pay $750,000 in damages to her ex-husband.”[1] These damages were ordered to compensate for the ex-husband’s broken heart. North Carolina is one of eight U.S. states to recognize “heart balm”torts.[2] Nothing hurts like a broken heart, so why not be able to recover for one? There are two types of “heart balm” torts a scorned spouse can use to recover: alienation of affections and criminal conversation.[3]

A plaintiff claiming alienation of affection has the burden to prove three elements: “(1) a marriage with genuine love and affection; (2) the alienation and destruction of the marriage’s love and affection; and (3) a showing that defendant’s wrongful and malicious acts brought about the alienation of such love and affection.”[4] The claim can even hold liable parties beyond the wrongful spouse![5] “As an example, [a North Carolina attorney] said a person could sue his or her mother-in-law if the mother-in-law was successful in persuading her child to divorce their spouse.”[6]

The second tort is called criminal conversation. “Conversation” is a judicially savvy way of saying sexual intercourse.[7] This cause of action is even easier to prove than alienation of affections because a scorned plaintiff need only show: “(1) [a] marriage between the spouses and (2) sexual intercourse between the defendant and the plaintiff’s spouse during the marriage.”[8] Section II will explain the relevant case law. Section III argues that although the “heart balm” torts might be constitutional, they should be abolished. 

II. Case Law 

In Heller v. Somdahl, Mr. Heller fell victim to cuckoldry.[9] Rather than hold his wife accountable, he brought suit against his wife’s friend Ms. Jones for alienation of affections.[10] At trial, the jury awarded Mr. Heller compensatory and punitive damages and Ms. Jones appealed.[11] The court of appeals went through each of the three elements to determine whether Mr. Heller set forth some evidence in support of his claims. First, the court found sufficient evidence that Mr. and Mrs. Heller had a marriage with genuine love and affection before the affair.[12] Friends testified that “the couple had a ‘warm, loving relationship’” and Mr. Heller put on the record how many times a week him and his wife engaged in intimacy.[13] Second, the court found enough evidence that the love and affection had been destroyed.[14] For example, there was evidence that Ms. Heller seemed “‘distract[ed]’”conversing with Mr. Heller while he was deployed overseas.[15] Finally, Mr. Heller proved “[m]alicious [c]ausation[.]”[16] The court found the following evidence to be sufficient: Ms. Jones had interfered with conversations between Mr. and Mrs. Heller, she gave Mrs. Heller alcohol even though she did not handle alcohol well, and she threatened to harm Mrs. Heller and her family if she did not commit to her lover, the defendant, Mr. Somdahl.[17] Because there was evidence to satisfy each element, the court of appeals affirmed the decision of the trial court.[18]

In the next case, Malecek v. Williams, the plaintiff did not challenge the sufficiency of the evidence.[19] Instead, Dr. Williams argued that the “heart balm” torts were facially unconstitutional.[20] Dr. Williams met the plaintiff’s spouse at a hospital where she was employed as a nurse, and they engaged in an affair. First, Dr. Williams brought a substantive Due Process challenge where he relied on Lawrence v. Texas.[21] In Lawrence, the Supreme Court recognized a same-sex couple’s right to engage in sex in the privacy of their own home.[22] Similarly, “Dr. Williams . . . argue[d] that alienation of affection and criminal conversation offend[ed] the Due Process Clause of the Fourteenth Amendment by restraining one’s liberty to have intimate sexual relations with another consenting adult.”[23] The court ascertained the following rule from Lawrence: “the Fourteenth Amendment generally prohibits States from regulating private, consensual activity ‘absent [1] injury to a person or [2] abuse of an institution the law protects.’”[24] Because the court weighed the state interest in preventing personal injury to the heart and protecting the institution of marriage more heavily than the burden on the liberty interest, the court held that the “heart balm” torts are constitutional under the Fourteenth Amendment.[25]

Second, Dr. Williams argued that his rights to free speech, expression, and association were improperly burdened under the First Amendment.[26] The court found that the United States v. O’Brien test applied because the regulation was content-neutral.[27] According to Clark v. Community for Creative Non-Violence, “[t]his type of content-neutral law will be upheld if ‘[1] it is narrowly drawn to further a substantial government interest, and [2] if the interest is unrelated to the suppression of free speech.’”[28] Because the court had already recognized a substantial government interest under substantive due process, the only question left was whether the restriction was unrelated to the suppression of free speech. The court reasoned, “these torts are intended to remedy harms that result when marriage vows are broken, not to punish intimate extra-marital speech or expression because of its content.”[29] For that reason, the “heart balm” torts were upheld under the First Amendment, and Dr. Williams was forced to prepare for trial.[30]

In Rodriguez v. Lemus, the court clarified two aspects of “heart balm” tort law.[31] First, circumstantial evidence is sufficient proof.[32] Second, “although these torts impose liability only for conduct occurring before a married couple has separated, evidence of post-separation conduct is competent to support findings of pre-separation conduct.”[33] Ms. Rodriguez was married to Mr. Jimenez when “[she] began to notice her marital relationship change.”[34] She found calls and text messages exchanged between her husband and a family friend, Ms. Lemus. Ms. Rodriguez also found suspicious hotel receipts. The issue was whether Ms. Rodriguez could prove sexual relations by circumstantial evidence and bolster this evidence with proof that Mr. Jimenez and Ms. Lemus engaged in sex after Ms. Rodriguez and Mr. Jimenez separated.[35] For the reasons stated above, she could.[36] The trial court verdict awarding Ms. Rodriguez $65,000 was allowed to stand.[37]

III. Discussion 

The “heart balm” torts were created in the 18th century to hold individuals legally responsible for sleeping with the other person’s spouse.[38] This is problematic for a number of reasons. First, it falsely presumes that one spouse is a passive participant. As the saying goes, it takes two to tango. An extra-marital affair should be properly addressed within a marriage between the two partners. One partner should not be able to use the court system to point a finger at anyone other than the person with whom he or she took a vow of monogamy.[39] Second, it puts a numerical value on sex with the plaintiff’s spouse. Reimbursement for sex is outlawed in 49 states.[40] Additionally, if the court valued the institution of marriage, it would not allow a plaintiff to quantify intimacy with his or her spouse. Because marriage is sacred and the other person becomes your life partner, no arbitrary dollar figure should be placed on the value of that relationship. It is invaluable. 

It is also important to emphasize that these cases are public record.[41] That means that friends, family, and co-workers will learn intimate details about the plaintiff’s marriage. Is there any amount of money worth telling the entire world how many times a week you were intimate with your spouse before he or she cheated on you? This type of evidence can also have a negative impact on a couple’schildren.[42] They will eventually become old enough to investigate the demise of their parents’ marriage.[43] Not only may they be inclined to pick sides, but at the very least they will know that their Dad filed a lawsuit over their Mom’s infidelity. Additionally, bringing a lawsuit for a “heart balm” tort is expensive.[44] For example, in the case detailed in the Washington Post article, “[an attorney’s] contemporaries estimate[d] that [the plaintiff] probably spent $10,000 to $75,000 in attorney fees alone over the two years and . . . it is unlikely he will pocket the judgment amount.”[45] This is a selfish action if the plaintiff has children. This money would be better spent on things like child care, education, and medical expenses. 

Nonetheless, it will be difficult to get rid of these torts. They arguably do pass constitutional muster, and courts so far have ruled that they indeed are constitutional. The judicially created tests in Lawrence and O’Brien/Clark first ask whether there is a substantial state interest. The court in Malecek said that preventing personal injury and preserving the sanctity of marriage is a substantial state interest. This is a persuasive argument; when a marriage is broken apart, especially due to infidelity, the children suffer the most. This can take an emotional toll on a child or limit the opportunities available to them due to greater financial strain. Additionally, the “heart balm” torts do serve as deterrents to people considering sleeping with another man or woman’s spouse.[46] No one wants to owe $750,000 or more in damages. 

The more difficult question is whether the speech is really content-neutral. The Malececk court claims that the speech is content-neutral because the torts aim to preserve marriage vows, not to prevent extra-marital affairs. This argument is pretty strong within the context of alienation of affection. The court stated, “[i]f the defendant’s actions deprived a married person of the love and affection of his or her spouse, the State will impose liability regardless of what the defendant actually said or did.”[47] But this argument has less force in the context of criminal conversation. The only way this tort can be committed is by sleeping with another’s spouse. In this way, it does seem to be content-based as it is directly aimed at the actual content, the extra-marital affair. If a court is willing to look under the fig leaf, criminal conversation could be abolished. But alienation of affections would likely survive. 

IV. Conclusion 

In 2019, people are accused of being “too soft,” as if that accusation is a recent development; however, it is unlikely that people are more sensitive now than in the 18th century. These “heart balm” torts arose when one spouse sought to summon the powers of the state after being cheated on by their spouse. What Mr. Heller, Mr. Malecek, and Ms. Rodriguez went through was undoubtedly incredibly painful, but these emotional situations are better suited for personal resolution rather than a judicial remedy. Courts should not be bogged down with cases about whether the defendant slept with the plaintiff before or after a specific date. Adjudicating matters of the heart should not be the province and duty of any state court.

[1]Lateshia Beachum, His wife cheated on him. So he sued the other man for #750,000 and won., Washington Post (Oct. 4, 2019),



[4]Heller v. Somdahl, 696 S.E.2d 857, 860 (N.C.App. 2010) (citing Litchfield v. Cox, 146 S.E.2d 641, 641 (N.C. 1966)). 

[5]Beachum, supra note 1. 

[6]Id. (citing Ashley-Nicole Russell, esq.).; see also Heller, 696 S.E.2d at 861 (quoting Peake v. Shirely, 427 S.E.2d 885, 887 (N.C.App. 1993) (“‘There must be active participation, initiative, or encouragement on the part of the defendant in causing one spouse’s loss of the other spouse’s affections for liability to arise.’”). 

[7]Beachum, supra note 1 (citing Ashley-Nicole Russell, esq.). 

[8]Rodriguez v. Lemus, 810 S.E.2d 1, 3 (N.C. App. 2018) (citing Coachman v. Gould, 470 S.E.2d 560, 563 (N.C. App. 1996)). 

[9]Heller, 696 S.E.2d at 859-60. 


[11]Id. at 860. 

[12]Id. at 862. 

[13]Id. at 860. 

[14]Id. at 862.

[15]Id. at 861. 

[16]Id. at 861-62. 

[17]Id. at 861. 

[18]Id. at 862. 

[19]Malecek v. Williams, 804 S.E.2d 592, 594 (N.C.App. 2017). 


[21]Id. at 595 (citing Lawrence v. Texas, 539 U.S. 558, 578 (2003)). 



[24]Id. (quoting Lawrence, 539 U.S. at 567). 

[25]Id. at  595-97 (citing Misenheimer v. Burris, 637 S.E.2d 173, 176 (N.C. 2006)). 

[26]Id. at 597. 

[27]Id. at 597-98 (citing United States v. O’Brien, 391 U.S. 367, 376-77 (1968)). 

[28]Id. at 598 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984). 


[30]Id. at 598-99. 

[31]Rodriguez v. Lemus, 810 S.E.2d 1, 2 (N.C. App. 2018).

[32]Id. at 4 (quoting In re Estate of Trogdon, 409 S.E.2d 897, 900 (N.C. 1991)) (“Adultery is nearly always proved by circumstantial evidence . . . as misconduct of this sort is usually clandestine and secret.”). 

[33]Id. at 2. 


[35]Id. at 3-5. 

[36]Id. at 2, 5.  

[37]Id. 2-3, 5-6. 

[38]Beachum, supra note 1 (“These ‘heart balm’or ‘homewrecker’laws, which date to at least the 18th century, allow for someone to sue for damages incurred when a third party breaks up a happy home.”). 

[39]Malecek v. Williams, 804 S.E.2d 592, 596 (N.C. App. 2018) (“Among the most central vows in a marriage is the promise of fidelity.”) (citing Obergefell v. Hodges, 135 S.Ct. 2584, 2608 (2015)). 

[40]US Federal and State Prostitution Laws and Related Punishments, ProCon.Org, (last visited Nov. 3, 2019) (“Prostitution is illegal in the United States with the exception of 10 Nevada counties.”). 

[41]Beachum, supra note 1 (“‘Once you file this case and talk about your child’s mother or father or whoever it was that cheated on you, it becomes public record and your kids see that,’ she said, noting that she often stressed the significance of these filings to her clients. ‘One of these days, your kids are going to get a copy of this.’”) (quoting Kellie Chappell-Gonzalez, esq.).



[44]Id. (“The discovery phase, filing depositions and hiring private investigators can add up for clients . . .”). 


[46]Malecek, 804 S.E.2d at 596 (“Moreover, the State’s interest in preserving these torts is strong. As explained above, these torts deter conduct that causes personal injury; . . .”). 

[47]Id. at 598.

No E-Smoking, Please: The Current State of Juul Electronic Cigarettes

“JUUL podmod starter kit”by Vaping360 is licensed under CC BY-ND 2.0

Margo Brandenburg, Associate Member, University of Cincinnati Law Review

I. Introduction 

Over the last decade, many smokers have made the switch to electronic cigarettes. Some of these smokers believed that electronic cigarettes were a healthier option than traditional cigarettes.[1] One company, JUUL Labs, distinguishes itself as the leading producer of E-cigarettes in the United States.[2] JUUL Labs produces JUUL electronic smoking devices and JUUL pods, which are inserted into the JUUL device and are made in a variety of flavors.[3] The JUUL device resembles a USB flash drive, and can be charged in the USB port of a computer. [4] Since the E-cigarette company’s launch only four years ago,JUUL E-cigarette sales have “made its founders billionaires, created a new verb, and resurrected the United States’ once dying E-cigarette market.”[5] The company’s revenue has almost tripled in the past two years, growing from $224 million in 2017 to nearly $1 billion in 2018, and profits are expected to continue to rise in 2019.[6]

Despite the ever-increasing popularity of “JUULing,” especially among young adults and teenagers, rough times may be ahead for the company.[7] JUUL Labs has been the subject of several consumer class action lawsuits. Additionally, the Trump Administration has targeted the company during its announcement of upcoming crack downs on E-cigarettes.[8] Part II discusses some of the consumer suits filed against JUUL. Part III explains the Trump Administration’s recent announcement that they plan to take flavored E-cigarettes off the shelves. Part IV concludes, noting that the future of the E-cigarettes like JUUL is unknown, but JUUL Labs should do its best to comply with FDA demands in the meantime. 

II. E-Cigarette Use Today 

From 2017 to 2019, high school students’ E-cigarette use increased by 135 percent.[9] Even more alarming, a study done by the New Truth Initiative indicated that sixty-three percent of JUUL users did not know that the JUUL E-cigarette contains nicotine.[10] According to the Center for Disease Control and Prevention, JUUL products are appealing to consumers because they “can be used discreetly, have a high nicotine content, and come in flavors that appeal to youths.”[11] While these E-cigarettes seem like they may be a better option than traditional cigarettes, it turns out that these may be just as dangerous. In December 2018, the Surgeon General issued an advisory on youth E-cigarette use, declaring the problem to be a growing epidemic.[12]

JUUL Lab’s early marketing tactics are credited with being a substantial reason for this epidemic.[13] In the company’s early stages, JUUL Labs enticed millions of teenagers and young adults to purchase the product by using colorful advertisements, social media campaigns, and trendy event spaces.[14] While JUUL asserts that it never advertised to teenagers, others have notably disagreed.[15] According to Dr. Robert Jackler, a founder of Stanford Research Into the Impact of Tobacco Advertising (“SRITA”), JUUL Labs deleted many of its controversial youth directed social media posts in several waves sometime before September 2019.[16] Jackler and his team has maintained in an archive JUUL’s deleted posts, including more than 2,500 tweets and 400 Facebook and Instagram posts, as well as material from JUUL’s website and other documents dating back to the company’s launch.[17] These social media archives contain evidence of JUUL’s advertising campaigns, which depicted attractive models smoking the E-cigarette in upscale clubs or bars, in an effort to attract young people.[18] As a result of JUUL’s advertising tactics, groups of consumers have filed complaints against JUUL Labs based on these suggestive marketing campaigns during the early days of the company.[19] In October 2019, a judicial panel on multidistrict litigation released an opinion that allowed JUUL to consolidate similar consumer suits against the company into one venue.[20] The panel stated that many of these suits involve the same general claims—”allegations that [JUUL Labs] had marketed its nicotine delivery products in a manner designed to attract minors . . . that JUUL products are defective and unreasonably dangerous due to their attractiveness to minors, and that [JUUL Devices] promote[] nicotine addiction.”[21]

In Nessmith v. JUUL Labs, Inc., one recently filed class action suit, the complaint alleged that JUUL devices were dangerous to users, especially teens and young adults, and that JUUL Labs used deceptive advertising practices.[22] Specifically, the complaint discussed that JUUL concealed information about the addictiveness of its products, advertised JUUL pods to have less nicotine than they really do, and failed to notify consumers that its products have not been approved by the FDA.[23] Moreover, it noted that JUUL copied the big tobacco companies’ efforts to glamorize traditional cigarettes in the 1950’s.[24]

In Indiana, a father of a fifteen-year-old teen who became addicted to a JUUL Lab E-cigarette filed another complaint against JUUL Labs.[25] The complaint alleged that JUUL Labs could have created a product that was less enticing to young people and contained less nicotine.[26] Describing the candy flavors and colored devices that JUUL Labs offers consumers, the father alleged that JUUL Labs could have designed a product that more specifically targeted adult smokers.[27] Due to JUUL usage and nicotine addiction, the father explained that his son will have lifelong medical problems.[28]

III. The Trump Administration & FDA Crack Down

Amidst the public outrage and lawsuits filed against JUUL, the Trump Administration and the FDA began taking efforts to curb flavored E-cigarette use by the public. In September 2019, the Trump Administration announced that it plans to remove all flavored E-cigarettes—other than tobacco flavor—from store shelves within thirty days.[29] This includes popular flavors among young people, like mango, cucumber, and menthol flavors, which JUUL has previously sold in their in both their brick-and-mortar locations and online.[30] U.S. Health and Human Services Secretary Alex Azar told reporters that the FDA made the decision to remove all flavored E-cigarettes from shelves to protect the health of Americans, specifically youth.[31] According to Azar, an unknown lung disease has plagued many of E-cigarette smokers and the disease has killed at least six of the smokers thus far.[32]

Under the Trump Administration’s new proposed policy, E-cigarette companies may be able to reintroduce flavors that were previously forced off of store shelves after their product is approved by the FDA’s formal application process.[33] However, the Trump Administration has not announced the formal policy on E-cigarettes yet.[34] Therefore, in the meantime, JUUL Labs  continues to sell its mint, menthol, and tobacco flavored pods in retail outlets, while otherwise seeming to cooperate with the Trump Administration by taking all other flavors off shelves.[35]

IV. State Laws Banning E-Cigarettes 

While it may take months for the federal ban to take effect, some states, like New York and Michigan, have already announced state-wide bans on flavored E-cigarettes, and others have announced plans to create similar prohibitions.[36] States have a variety of options at their disposal to help curb E-cigarette use, dating back to states’ successful implementation of legislation regulating big tobacco companies’ selling and advertising of traditional cigarettes to young people.[37] As states became aware of the problem of traditional cigarettes attracting young people, “they succeeded by approaching the problem from multiple angles:banning tobacco sales to minors, reducing flavors in tobacco products, taxing cigarettes, and prohibiting ads on billboards.”[38] The first step, banning tobacco sales to minors is largely completed with regard to E-cigarettes; as of September 2019, almost all states have laws that prohibit youth access to E-cigarettes. [39]

V. Analysis

After the lawsuits, FDA regulations, and a potential Trump Administration crack down, JUUL Labs should be fully cooperative with the government in taking all of its flavored products off shelves. JUUL Labs claims that its goal is to improve the lives of the billion smokers around the world.[40] While this seems like a valiant mission, JUUL is worsening lives by leaving any of its flavored pods on the market. JUUL’s announcement that they will take all of the flavors other than menthol and mint off shelves is a marketing tactic disguised as corporate social responsibility. While JUUL seems to have made efforts to comply with FDA demands, mint and menthol flavors are one of the most popular among high school students, and preference for these flavors among teens has increased since the other flavors were taken off the market.[41] Thus, in an effort to continue making a profit, JUUL is continuing to sell its most appealing E-cigarette flavors while keeping up a façade that it is abiding by FDA demands. 

Since JUUL Labs is not making a genuine effort to curb youth E-cigarette use, states should get more involved until the Trump Administration formulates concrete, federal legislation banning the sale of flavored E-cigarettes. As a matter of public policy, states need to get involved in helping to curb the E-cigarette epidemic’s impact on youth. While almost all states have enacted laws that prohibit youth access to E-cigarettes, the states’ legislation prohibiting access only is not going far enough to curb youth smoking.[42] This is evidenced by the fact that the mint and menthol flavors still appeal to youth smokers, and youth smokers are still buying JUUL products.[43] Like states did in the crack down on traditional cigarettes over the last decade, all states should create legislation that bans all flavored JUUL E-cigarettes in brick-and-mortar stores, other than tobacco flavor, in the hope that doing so will decrease the number of underage JUUL smokers who smoke just for the flavorful taste. 

VI. Conclusion

Flavored E-cigarette companies like JUUL Labs are risking teens’ lifelong health by its past marketing tactics and the many different flavors they offer. Until the Trump Administration releases concrete policy on E-cigarette usage, and more research is done outlining the effects of JUUL device usage on the human body, JUUL Labs is in a state of waiting. While waiting on the federal legislation, states should implement their own legislation that bans flavored E-cigarettes throughout the state. Also, JUUL Labs itself should get serious about the FDA’s demands, unless JUUL wants to face even harsher consequences, and even more consumer-based lawsuits. While these recommendations are only initial steps in curbing underage teens’ use of JUUL products around the country, they will be steps in the right direction.  

[1]Katy Moncivais, What are Consumers Claiming in Juul Lawsuits?, Nat. L. Rev.(Sept. 11, 2019),


[3]Laura Bach, JUUL and Youth: Rising E-Cigarette PopularityCampaign for Tobacco Free Kids(Sept. 12, 2019),


[5]Irene Kim, Steve Cameron, & Kaitlyn Wang, How Juul went from a $38 billion darling to uncertain future and FDA investigation,Bus. Insider(Oct. 22, 2019),

[6]Id. This “verb” is called JUULing, rather, the action of smoking a JUUL e-cigarette.

[7]Moncivais, supra note 1.


[9]Bach, supra note 3.

[10]JUUL E-Cigarettes Gain Popularity Among Youth, but Awareness of Nicotine Prescience Remains Low, Truth Initiative (Apr. 18, 2018),

[11]Bach, supra note 3.




[15]Kathleen Chaykowski, The Disturbing Focus on Juul’s Early Marketing Campaigns, Forbes (Nov. 16, 2018, 2:38 PM),




[19]E.g., Zampa v. JUUL Labs, Inc., 2019 U.S. Dist. LEXIS 68556, (S.D. Fla. Apr. 23, 2019), Nessmith v. JUUL Labs. Inc., Case No. 8:19-cv-00884, Complaint (M.D. Fla. April 15, 2019). 

[20]In re Juul Labs, Inc., 2019 U.S. Dist. LEXIS 174035, at *1 (J.P.M.L. Oct. 2, 2019).


[22]Case No. 8:19-cv-00884, Complaint (M.D. Fla. April 15, 2019).



[25]Shari Rudavsky, Lawsuit says Juul lured in Carmel teen with candy flavors, bright colors and nicotine,Indianapolis Star (Aug. 27, 2019),




[29]Angelica LaVito, E-cigarette giant Juul suspends sales of all fruity flavors ahead of looming US ban, CNBC (Oct. 17, 2019, 1:00 PM),





[34]LaVito, supra note 29. 


[36]Andrew Van Dam, Trump’s vaping crackdown could help Juul by ending the decade’s biggest small-business success story, Wash. Post (Sept. 23, 2019, 4:03 PM),

[37]Note:Marketing, Federalism, and the Fight Against Teen Cigarette Use: Analyzing State and Local Legislative Options, 69 Case W. Res. 173, 188 (2018).


[39]U.S. E-Cigarette Regulations–50 State Review, Pub. Health Law Center (2017),

[40]JUUL, (last visited Oct. 23, 2019).

[41]Bach, supra note 3. 

[42]U.S. E-Cigarette Regulations–50 State Review, Supranote 40.

[43]Bach, supra note 3.

Does Title VII proscribe sexual orientation discrimination?

Pride” by EricaJoy is licensed under CC BY-SA 2.0.

Chloe Knue, Associate Member, University of Cincinnati Law Review

I. Introduction

The Civil Rights Act of 1964 (“Title VII”) proscribes discrimination on the basis of four protected categories: (1) race, (2) sex, (3) religion, and (4) national origin.[1] Unless a class is specifically protected by Title VII or separate legislation enacted by Congress or a state legislative body, an employer may terminate or otherwise disadvantage an employee for discriminatory reasons.[2] In 2018, when Zarda v. Altitude Express, Inc. was decided, the Second Circuit extended employment protections to plaintiffs who identified as homosexual.[3] Plaintiffs have turned to federal courts to recognize sexual orientation as a protected class because Congress has “propos[ed] and reject[ed] . . . over fifty amendments to add sexual orientation to Title VII . . .”[4] Even though most judges agree, as a matter of public policy, that sexual orientation should be protected by Title VII, they disagree about how it should be written into the law.[5] In Zarda, the majority and dissent dispute whether sexual orientation should be incorporated into Title VII by judicial construction or whether it should be left to Congress. The Supreme Court granted certiorari to resolve the disagreement between the majority and dissent.

II. Background

 A Title VII sex discrimination action asks whether “‘sex . . . was a motivating factor for any employment practice. . .”[6] It is common for plaintiffs to petition courts to include sexual orientation into the definition of sex in Title VII.[7] If this definition is adopted, the question becomes whether (1) a person’s sex or (2) a subset of his or her sex (i.e. sexual orientation) motivated an employer’s decision.[8] In the early 2000’s, the Second Circuit declined to adopt this interpretation in two cases.

In Simonton v. Runyon, the court defined sexual orientation as something separate from sex discrimination.[9] Mr. Simonton was a postal worker who identified as a gay man.[10] He had been subjected to disturbing abuse and discrimination by his co-workers which he alleged caused him to suffer a heart attack.[11] He argued that sex in Title VII includes sexual orientation. 

First, Mr. Simonton relied on Oncale.[12] In Oncale, the Supreme Court held that same-sex sexual harassment could be protected by Title VII.[13] Mr. Simonton argued that his treatment should also be protected because non-heteronormative sexual harassment was protected in Oncale. The court disagreed. It reasoned, “Oncale emphasized that every victim of such harassment must show that he was harassed because he was male [as opposed to his sexual orientation].”[14] The court’s analysis hinged on whether a harasser manifested a romantic interest in a victim.[15]                        

Second, Mr. Simonton asserted his circumstances were the same as those in Price Waterhouse v. Hopkins.[16] In that case, a female accountant was denied a promotion because she did not conform to traditional gender stereotypes.[17] According to the court, “[s]he was advised that she could improve her chances for partnership if she would ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.’”[18] Similarly, Mr. Simonton argued that, as a gay man, he failed to conform to gender roles.[19] Nonetheless, the court maintained “[t]his [gender stereotype] theory would not bootstrap protections for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine.”[20] The court added that there was “no basis in the record to surmise that [Mr.] Simonton behaved in a stereotypically feminine manner.”Subsequently, the court granted the defendant’s motion to dismiss. 

In another case, Dawson v. Bumble & Bumble, the court struggled to draw a line between gender stereotypes and sexual orientation stereotypes.[21] Ms. Dawson worked as a hair assistant at a Bumble and Bumble hair salon and identified as a lesbian female.[22] She attributed her termination to her self-described masculine haircut and dress.[23] Although Ms. Dawson’s co-workers had commented on her appearance and even nicknamed her “Donald,” the court was careful not to read sexual orientation into the statute.[24] The court cited an article that “counsel[ed] ‘gay plaintiffs bringing claims under Title VII [to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality[.]’”[25] The court granted the defendant’s motion to dismiss because the court believed that Ms. Dawson was trying to bring a claim for sexual orientation discrimination rather than gender stereotyping under Title VII.[26]

III. Zarda v. Altitude Express

Zarda overturned Simonton and Dawson.[27] Mr. Zarda, a gay man, stated that he would sometimes try to cure the awkwardness that would arise when he would strap himself to a woman for a skydive by revealing that he was gay. Mr. Zarda alleged that he was terminated when a client’s boyfriend complained to Mr. Zarda’s supervisor about his sexuality.[28] The court defined sex to include sexual orientation for three reasons.[29]

First, the court relied on the knowing requirement.[30] This is the idea that “one cannot fully define a person’s sexual orientation without identifying his or her sex, . . .”[31] The inquiry asks: (1) what is “the sex of the person and [2] that of the people to whom he or she is attracted.”[32] In other words, you can never get to step two without first completing step one. Therefore, the court found that sex and sexual orientation are related. In opposition, it was argued that it is possible to begin at step two.[33] For example, an employee can be fired for being gay, without any mention of his maleness.[34] However, the court declined to let terminology distract from reality.[35] It was also argued that the original purpose of Title VII prevented the majority’s characterization of sex.[36] But the court framed the original purpose in a different way as a “‘broad rule of workplace equality.’”[37] It also noted that in other contexts where courts extended Title VII protections “‘to cover reasonably comparable evils,’”such as sexual harassment and hostile work environment.[38] The court found that sexual orientation discrimination was a reasonably comparable evil.[39]

Second, the court returned to the gender stereotype argument articulated in Simonton and Dawson.[40] The court found, “that ‘the line between sex discrimination and sexual orientation discrimination is “difficult to draw” because that line does not exist, save as a lingering and faulty judicial construct.”[41] In support of this finding, the court cited a number of degrading slurs, including, “macho”and “fem[.]”[42] It emphasized the impossibility of determining whether these slurs refer to a person’s gender or sexual orientation because there is inherent overlap.[43] For that reason, the court disagreed with the court in Simonton and found “that same-sex orientation ‘represents the ultimate case of failure to conform’ to gender stereotypes[.]”[44] For example, when a person is discriminated against for being gay, “[t]he gender stereotype at work [there] is that ‘real’ men should date women, . . .”[45] Third, the court relied on the associational discrimination theory.[46] Historically, this theory applied only to racial discrimination cases.[47] For example, in Holcomb v. Iona College, a white male was fired for marrying a black woman.[48] The court applied the theory to Mr. Zarda’s case because “Title VII, . . . ‘on its face treats each of the enumerated categories exactly the same.’”[49] The court concluded that Mr. Zarda could not be fired from his job for associating with other men.[50]

The dissent argued that sexual orientation is not a protected class based on Title VII’s “original public meaning.”[51] Judge Lynch discussed the history of civil rights causes, including the fight for racial equality, women’s rights, and rights for members of the LGBTQ community.[52] He noted that each cause developed separate and under a unique set of circumstances.[53] Therefore, he asserted, they are not the same. When the government seeks “to protect an entirely different category of people[,]” the dissent said it must do so through legislation.[54] Age and disability, for example, had to be protected by subsequent acts of Congress.[55] Judge Lynch made it clear in his opinion that he is an avid proponent of the political process.[56] In other words, if you want a protection, you must go out and lobby Congress for it. This recourse worked in twenty-two states.[57] And, according to Judge Lynch, “[i]n none of those states did the prohibition of sexual orientation discrimination come by judicial interpretation of a pre-existing prohibition on gender-based discrimination to encompass discrimination on the basis of sexual orientation.”[58] Despite compelling policy reasons for protecting members of the LGBTQ community from discrimination in the workplace, the dissent would have left the decision to Congress.[59]

IV. Discussion

 Title VII has fallen behind its foreign legislative equivalents. There are numerous different ways of thinking about sex, gender, and sexual orientation.[60] Nevertheless, courts have been forced to lump these modes of self-identification together under the legal definition of sex under Title VII. The best way for this error to be resolved is for Congress to amend the statute. If the Court were to make these distinctions, Title VII would be limited to a proscription on discrimination based on biological sex. In other words, only sex specific traits like child-bearing capabilities and life expectancy would be protected from discrimination.[61] Courts would no longer have any support for reading gender stereotypes or sexual orientation into the statute. Other countries, like Canada and the United Kingdom, have amended their Title VII equivalents to recognize a greater range of classes. In the United Kingdom’s version of Title VII, for example, sex, sexual orientation, and gender reassignment are separate classes.[62] Similarly, Canada protects sex, sexual orientation, and gender identity or expression.[63] Congress, as the representatives of the American people, must amend Title VII to give these separate classes the integrity, respect, and protection that each deserves. 

Congress should legislate further and rework Title VII to protect all class of self-identification because no group is more deserving of federal protection than others. The dissent pointed out that “Congress . . . adopted narrower language than ‘discrimination based on personal characteristics or classifications unrelated to job performance.’”[64] Consider what would happen if this language were adopted as the new Title VII. Aside from employees who are employed at-will, what if you could not be fired for any reason other than your job performance or a budgetary reason? In other words, what if you could not be discriminated against based on any mode of self-identification or personal characteristic? This broad, all-encompassing language would cause no harm to the employer. Any argument to the contrary would rely on stereotypes about the job performance of people who are women, people who are married, people who belong to the LGBTQ community, people who practice a certain religion, or people who are or are not white. The point is: people should not be fired for being people. Aside from administrative concerns, an employee should only be fired for failure to measure up to job performance standards. Moreover, a diverse range of employees is in the interest of an employer. All businesses are in the business of people. It is human nature to gravitate toward people who manifest the characteristics you see in yourself. An employer may be able to expand his or her customer base by employing different types of people with whom all different types of people can relate. 

If Title VII underwent this purposed Congressional overhaul, the question would remain: what groups would an employer be prevented from discriminating against that should necessarily be susceptible to discrimination? The short answer, of course, is no one. Even if you do not agree with the lifestyle choices of your co-workers, it is in the interest of everyone that all people can work and live a fulfilled life. Some people find that getting up every day and working gives their life purpose. When people feel that they are without purpose and are alienated by society, this can lead to acts of violence. When a man is fired from his job for being gay, the taxpayers bear the burden of his unemployment. Although you may not want to spend your free time with an “aggressive” female, or a gay man, you must be able to tolerate all types of people in the modern workplace. America was intended to be the land of opportunity, but countries like Canada and the United Kingdom have greater protections that facilitate opportunity for more people. The United States should raise the bar even higher and facilitate opportunity for all people.

V. Conclusion

The Supreme Court should affirm the Second Circuit’s strong argument that sexual orientation discrimination is related to sex discrimination. This employment right for members of the LGBTQ community is long overdue. It is incomprehensible that a person in 2019 can be fired for having a certain personal characteristic. Unlike age and disability, which have no textual support in Title VII, it is fortunate that sex can be construed to include sexual orientation. Although the Court must insert itself into this debate in the interest of justice, it should call on Congress to make an explicit change to Title VII. 

[1]Zarda v. Altitude Express, Inc., 883 F.3d 100, 111 (2nd Cir. 2018). 

[2]Id. 147-48 (Lynch, J., dissenting).

[3]Id. at 108. 

[4]Id. at 155. 

[5]Id. at 147-48, 167. 

[6]Id. at 112 (quoting 42 U.S.C. §2000e-2(m)). 


[8]Id. at 112 (quoting Hively v. Ivy Tech Cmty. College of Indiana, 853 F.3d 339, 343 (7th Cir. 2017)), 117 (“[T]he proper question is whether sex is a ‘motivating factor’in sexual orientation discrimination, . . . or, said more simply, whether sexual orientation is a function of sex.”) (quoting 42 U.S.C. §2000e-2(m)). 

[9]Simonton v. Runyon, 232 F.3d 33, 36-8. (2nd Cir. 2000). 

[10]Id. at 34. 

[11]Id. at 34-5. 

[12]Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75, 80-81 (1998). 

[13]Id. at 36 (quoting Oncale, 523 U.S. at 79) (“In Oncale, the Supreme Court rejected a per se rule that same-sex sexual harassment was non-cognizable under Title VII. The Court reasoned that ‘nothing in Title VII necessarily bars a claim of discrimination “because of . . . sex” merely because the plaintiff and the defendant (or person charged with acting on behalf of the defendant) are of the same sex.’”). 

[14]Id. (citing Oncale, 523 U.S. at 80-81). 

[15]Id. at 36 (quoting Oncale, 523 U.S. at 80). 

[16]Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 250 (1989). 

[17]Simonton, 232 F.3d at 37 (quoting Price Waterhouse, 490 U.S. at 250). 

[18]Id. (quoting Price Waterhouse, 490 U.S. at 235). 

[19]Id. at 37-8. 

[20]Id. at 38. 

[21]Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2nd Cir. 2005) (“Both in her complaint and in her briefing on this appeal, Dawson has significantly conflated her claims. As a result, it is often difficult to discern when Dawson is alleging that the various adverse employment actions allegedly visited upon her by Bumble & Bumble were motivated by animus toward her gender, her appearance, her sexual orientation, or some combination of these.”). 

[22]Id. at 213. 

[23]Id. at 221-22 (quoting Dawson’s affidavit and appellate brief). 

[24]Id. at 218 (quoting Simonton, 232 F.3d at 38), 222 (quoting Dawson’s complaint). 

[25]Id. at 218 (quoting Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 Syracuse L.Rev. 1117, 1134 (2003)). 

[26]Id. at 217-218, 219 (citing Martin v. New York State Dep’t of Corr. Servs., 224 F.Supp.2d 434, 447 (N.D.N.Y. 2002).

[27]Zarda v. Altitude Express, Inc., 883 F.3d 100, 107-8 (2nd Cir. 2018).

[28]Id. at 108-09. 

[29]Id. at 112-13. 

[30]Id. at 113 (citing Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 358 (7th Cir. 2017)) (Flaum, J., concurring)). 


[32]Id. at 113 (citing Hively 853 F.3d at 358) (Flaum, J., concurring). 

[33]Id. (“Choosing not to acknowledge the sex-dependent nature of sexual orientation, certain amici contend that employers discriminating on the basis of sexual orientation can do so without reference to sex.”). 

[34]Id. (“‘I fired him because he is gay,’ not ‘I fired him because he is a man.’”)

[35]Id. at 113-114 (“But this semantic sleight of hand is not a defense; it is a distraction. The employer’s failure to reference gender directly does not change the fact that a ‘gay’ employee is simply a man who is attracted to men . . . More broadly, were this Court to credit amici’s argument, employers would be able to rebut a discrimination claim by merely characterizing their action using alternative terminology. Title VII instructs courts to examine employers’motives, not merely their choice of words.”) (citing 42 U.S.C. §2000e-2(m)). 

[36]Id. at 114 (quoting Hively, 853 F.3d at 362) (Sykes, J., dissenting). 

[37]Id. at 111 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). 

[38]Id. at 114-15 (quoting Oncale, 523 U.S. at 79-80). 

[39]Id. at 115. 

[40]Id. at 119. 

[41]Id. at 122 (quoting Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1159 (C.D. Cal. 2015)) (quoting Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3rd Cir. 2009)). 

[42]Id. at 121 (quoting Fabian v. Hosp. of Cent. Conn., 172 F.Supp.3d 509, 524 n.8 (D. Conn. 2016)) (quoting Kay v. Indep. Blue Cross, 142 Fed.Appx. 48, 51 (3rd Cir. 2005)). 

[43]Id. at 122 (“We now conclude that sexual orientation discrimination is rooted in gender stereotypes and is thus a subset of sex discrimination.”). 

[44]Id. at 121 (quoting Hively, 853 F.3d at 346). 

[45]Id. (quoting Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass. 2002)). 

[46]Id. at 124. 


[48]Id. (citing Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008). 

[49]Id. at 125 (quoting Price Waterhouse, 490 U.S. at 243 n.9). 


[51]Id. at 143-44 (Lynch’s dissent) (Hively, 853 F.3d at 362) (Sykes, J., dissenting). 

[52]Id. at 137-43. 

[53]Id. at 143. 

[54]Id. at 145, 147. 

[55]Id. at 147-48 (citing Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq.) (Age Discrimination in Employment Act of 1967, 29 U.S.C. §621 et seq.). 

[56]Id. at 148 (“But not everything that is offensive or immoral or economically inefficient is illegal, and if the view that a practice is offense or immoral or economically inefficient does not command sufficiently broad and deep political support to produce legislation prohibiting it, that practice will remain illegal.”). 

[57]Id. at 152. 


[59]Id. at 166-67. 

[60]Michele J. Eliason, An Exploration of Terminology Related to Sexuality and Gender: Arguments for Standardizing the Language, Social Work in Public Health, 162-175 (2014). 

[61]Zarda, 883 F.3d at 117 (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 704-5, 712 (1978) (women discriminated against based on greater life expectancy). 

[62]Equal Opportunities Commission, What Does Equal Opportunities Mean?, (last visited Oct. 29, 2019).

[63]Canadian Human Rights Commission, About Human Rights, (last visited Oct. 29, 2019).

[ Zarda, 883 F.3d at 147.

Opening the Door: Can a Defendant use the Confrontation Clause to Access a Witness’s Medical Records?

“Courthouse”by formatted_dad is licensed under CC BY-NC-ND 2.0

Corey Bushle, Associate Member, University of Cincinnati Law Review

I. Introduction

In August of 2019, the Eighth Circuit Court of Appeals held that the Confrontation Clause of the Sixth Amendment entitles a defendant to compelled discovery when discovery will bolster the defendant’s cross examination of an adverse witness. In doing so, the Court unnecessarily created a Circuit split and contradicted Supreme Court precedent which held that the Confrontation Clause does not include a right to constitutionally compelled pretrial discovery.[1] In the Eighth Circuit Case, United States v. Arias,[2] the Defendant made sound arguments for why the discovery he sought was necessary. However, those arguments should have been couched in the Due Process Clause instead of the Confrontation Clause.

Part II of this article will discuss the decision in Arias. The article will compare Arias to the Supreme Court’s holding in Pennsylvania v. Ritchie,[3] a nearly identical case decided before Arias, through which the Supreme Court reached the opposite result of the Eighth Circuit. In Part III, this article will conclude that the Arias decision reached the right result—but for the wrong reasons.

II. Background

A. United States v. Arias: The Confrontation Clause entitles a defendant to a victim’s medical records when useful for cross examination.

The United States charged Alan Arias with three counts of sexual abuse of his minor cousin.[4] Before trial, Arias demanded access to the victim’s mental health records from a facility where the victim had allegedly been treated. The trial court denied Arias’s request, deeming it a “fishing expedition” and finding that the records were privileged.[5] Instead, the court limited Arias’s questions to the victim’s history with bipolar disorder—occurring prior to the alleged assault—to attack the reliability of the victim’s testimony. At trial, the victim testified that a doctor diagnosed her with anxiety and PTSD after the alleged assault.[6] Arias objected, arguing that he could not effectively impeach the credibility of the victim’s testimony without the mental health records he requested before trial, and that the state opened the door by eliciting testimony about the victim’s post-assault mental state.[7] The court overruled Arias’s objections, and the jury convicted Arias of all three counts.

On appeal, Arias argued that the trial court’s denial of his request for the mental health records and subsequent allowance of testimony about the victim’s mental health violated his rights under the Confrontation Clause of the Sixth Amendment.[8] Allowing the victim to testify that a professional diagnosed her with PTSD after the alleged assault, Arias contended, substantially bolstered the victim’s credibility and made it seem more likely that an assault took place. Without access to the psychiatric records, Arias could not challenge the veracity of the diagnosis on cross examination. Moreover, Arias claimed, the trial court’s pretrial ruling allowing cross examination about the victim’s prior mental health was nonresponsive to Arias’s concerns about the PTSD diagnosis. The pretrial ruling was focused on the theory that the victim’s condition tainted her account of the alleged assault, not on the assault’s effect on the victim’s mental health.[9]

The Eight Circuit Court of Appeals agreed with Arias. The court held that while the trial court’s pretrial denial was not erroneous, the victim’s trial testimony about her post-assault mental health triggered the Confrontation Clause because the records may have contained information necessary for Arias to effectively cross examine the victim.[10] However, since no court had ever examined the records in question, the Court was unable to determine the extent to which the trial court’s denial prejudiced Arias. Accordingly, the Court of Appeals remanded the case and ordered the trial court to perform an in camera (confidential) review of the mental health records to determine if the court’s failure to give Arias access was harmless.[11]

Circuit Judge Colloton, dissenting from the majority in Arias, argued that the Confrontation Clause does not include a right to compelled discovery.[12] According to the dissent, Confrontation Clause cases usually fall into two categories: the improper admission of hearsay statements and court-imposed limitations on the scope of cross examination.[13] Since the trial court never forbade Arias from cross examining the victim about her PTSD diagnosis, the dissent argued that the pretrial order did not violate Arias’s rights under the Confrontation Clause.[14]

B. Pennsylvania v. Ritchie: Ambiguity over the Scope of the Confrontation Clause.

The Supreme Court considered whether the Confrontation Clause includes a right to compelled discovery of confidential records in Pennsylvania v. Ritchie.[15] The Defendant, George Ritchie, was charged with sexual assault of a minor and tried to compel discovery of the victim’s records—much like the defendant in Arias.[16] The victim, Ritchie’s daughter, alleged that Ritchie had assaulted her multiple times over a four year period, and that she reported the assaults to the police. Pursuant to a Pennsylvania state law, the police then reported the incidents to Children and Youth Services (“CYS”). Ritchie served a subpoena on CYS for the files related to the alleged assaults. CYS refused to turn over the documents, claiming they were privileged under state law.[17]

Ritchie petitioned the trial court to compel discovery, arguing that the file might contain exculpatory evidence, potential witnesses, or medical records that could help him effectively cross examine the victim.[18] The court denied Ritchie’s motion without reviewing the documents he sought, instead accepting CYS’s assertions that the documents contained no medical records. At trial, although the victim testified extensively to the past incidents, the judge placed no limitations on the scope of Ritchie’s cross examination of the victim. The jury convicted Ritchie on all counts.[19]

On appeal, the Pennsylvania Supreme Court vacated Ritchie’s conviction, holding that he was entitled to have his lawyer fully review the records for useful evidence under the Confrontation Clause.[20] The United States Supreme Court granted certiorari to resolve the balance between the State’s interest in keeping the CYS records confidential and Ritchie’s rights under the Confrontation Clause.

A plurality of Justices joined the portion of Justice Powell’s opinion dealing with the Confrontation Clause. The plurality rejected the Pennsylvania Supreme Court’s broad interpretation that the Confrontation Clause provides a right of pretrial discovery.[21] The Court summarized the Confrontation Clause as giving two protections for a criminal defendant: first, the right to physically face those who testify against him; and second, the right to cross examine.[22] While Ritchie claimed that denying him access to the CYS records impeded his ability to cross examine the victim more effectively than he otherwise could, the Court rejected this argument. According to the plurality, the right to confrontation is a trial right which prevents improper restrictions on the scope of cross examination, not the right to compel discovery of any and all information that might be useful in contradicting unfavorable testimony.[23] Since the trial court made no restrictions on the scope of cross examination, the plurality found that the Pennsylvania Supreme Court erred in holding that denying Ritchie access to the CYS files violated his rights under the Confrontation Clause.[24]

The Court’s analysis did not end there. While Ritchie found no relief in the Confrontation Clause, a majority of the Court held that the Due Process Clause of the Fourteenth Amendment entitled Ritchie to have the trial judge conduct an in camera review of the CYS records. An in camera review, the Court reasoned, would effectively balance the State’s confidentiality interest with Ritchie’s right to discover material evidence. The trial judge, the Court said, could privately determine if the files contain any exculpatory evidence, rather than allowing Ritchie himself unrestricted access to the victim’s confidential files.[25]

C. Post-Ritchie, other Circuit Courts hold that the Confrontation Clause gives no right to discovery.

After Ritchie, several Circuit Courts held that that the Confrontation Clause does not provide a right to compelled discovery.[26] In United States v. Fattah, a case presenting an analogous issue to Arias, the trial court directly applied the in camera procedure set forth in Ritchie to review a prosecuting witness’s mental health records which the defendant requested.[27] The witness, who was reportedly diagnosed with bipolar disorder, voluntarily submitted his mental health records for the court to review. The court found no evidence in the records that it deemed material for the case and quashed the defendant’s subpoena for the records.[28]

On appeal, the defendant argued that the trial court’s in camera review of the mental health records violated his rights under the Confrontation Clause by impeding his ability to cross examine the witness.[29] The Third Circuit Court of Appeals rejected this argument since it was the very same point considered and rejected by the Supreme Court inRitchie.[30]

III. Analysis

The Eighth Circuit’s decision in Arias reached the right result for the wrong reason. As the dissent in Arias pointed out, the Court in Ritchie already squarely rejected the argument that the Confrontation Clause entitles a criminal defendant to any and all information that might be useful to cross examination. Nonetheless, the majority remanded the case back for the District Court to perform an in camera review, solely on Confrontation Clause grounds. While the Court’s desire to ensure that a Defendant has a fair opportunity to effectively cross examine an adverse witness was commendable, it did not have to resort to such a dramatic reinterpretation of the Confrontation Clause to achieve that result.

The Confrontation Clause acts as a shield for criminal defendants against the prosecution. Expanding its meaning to use it as a sword against the credibility of the prosecution’s witnesses not only opens the door to prosecution-friendly interpretations but also creates a confusing overlap with the Brady line of Due Process cases. The Supreme Court has observed that the Confrontation Clause is chiefly intended to prevent the use of testimonial evidence—testimony in the form of a narrative with no opportunity to cross examine the witness—and ex parte examinations as evidence against a criminal defendant.[31]

In Crawford v. Washington, the Supreme Court overruled a precedent that allowed prosecutors to use testimonial evidence if the witness was not available and the message contained “indicia of reliability.”[32] Recounting the historical basis for the Clause that dated back to pre-colonial English Common Law, Justice Scalia wrote that the only acceptable indicia of reliability was confrontation—the opportunity for cross examination by the defendant. A judge’s lone determination of reliability could not suffice to satisfy a defendant’s interest in cross examination.[33]  

While Ritchie might be considered a prosecution-friendly ruling, as it restricts a defendant’s ability to compel discovery of information, the decision in Crawford shows that a traditional, strict reading of the Sixth Amendment may be best for criminal defendants. Before Crawford, prosecutors could wholesale admit damaging testimonials in lieu of direct examination of witnesses in court, including accusations by accomplices of the accused.[34] Here, a “flexible” reading of the Confrontation Clause proved to be disastrous for criminal defendants and the notion of a fair trial. Giving in to a flexible reading of the provision for the benefit of defendants could prove perilous if it opens the door for similarly generous readings for prosecutors.

Although the Confrontation Clause’s main guarantee is the right to cross examine, that does not mean that any claimed right related to cross examination must fall under the Confrontation Clause. Ariaswas ultimately a case about the right of discovery—a right which falls squarely under the protection of the Due Process Clause of the Fifth and Fourteenth Amendments. Had Arias made the Due Process argument and requested the judge perform an in camera review of the records on those grounds, rather than repeating Ritchie’s failed Confrontation Clause argument, it seems likely that he would have succeeded. However, by accepting Arias’s Confrontation Clause argument in direct contradiction of the plurality’s opinion of Ritchie, the Eighth Circuit created a Circuit split over settled law.

IV. Conclusion

As the Supreme Court stated in Ritchie, the Confrontation Clause is a trial right; it guarantees that criminal defendants are not convicted based on hearsay and unrebutted testimonial evidence, without the chance to cross examine witnesses, or to exclude evidence for which no confrontation is possible. The Eighth Circuit accepted the argument that the right to confront witnesses includes the right to discover anything that might bolster the confrontation of witnesses. While, theoretically, unlimited compelled discovery would certainly benefit criminal defendants, that right cannot be found in the Confrontation Clause. Instead, defendants should look to the Bradyline of Due Process cases in order to compel discovery of material exculpatory evidence. 

[1]Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

[2]United States v. Arias, 936 F.3d 793 (8th Cir. 2019).

[3]480 U.S. 39 (1987).

[4]Arias, 936 F.3d at 793.


[6] 796.


[8] 798-99.

[9] 799.



[12] 801.



[15]480 U.S. 39 (1987).

[16]Id. at 43.

[17]Id. at 44.


[19]Id. at 45.

[20]Id. at 46.

[21] 52.

[22] 51

[23] 52-53.


[25] 61.

[26]See e.g. United States v. Fattah, 914 F.3d 112, 180 (3d Cir. 2019); United States v. Hargrove, 382 Fed.Appx. 765, 775 (10th Cir. 2010) (trial court’s refusal to order a government witness to produce mental health records did not violate defendant’s confrontation rights); United States v. Sardinas, 386 Fed.Appx. 927, 940-41 (11th Cir. 2010) (Defendant’s confrontation rights were not violated by failing to provide him with information about a criminal informant to use on cross examination).

[27]Fattah, 314 F.3d at 178.

[28]Id. at 179.



[31]541 U.S. 36, 36 (2004). 


[33] 62-63.

[34] 64.

The Trademark Problem for “THE” Ohio State University

“University Hall IMG_4991”by OZinOH is licensed under CC BY-NC 2.0

Mike Chernoff, Associate Member, University of Cincinnati Law Review

I. Introduction

Words, symbols, or phrases that are used to identify products and distinguish products from others can receive trademark protection in the United States.[1] Recently, The Ohio State University filed a trademark application for the word “THE” on various items of clothing and was subsequently denied trademark registration by the United States Patent and Trademark Office.[2] Part II will provide further background information on trademark law in the United States. Part III will discuss the history of the name of The Ohio State University, the source of the “THE” in the trademark application. This application and its recent events will be discussed in Part IV. Part V will discuss the possibilities for the outcomes for The Ohio State University’s trademark application.

II. United States Trademark Law Background

A trademark is a word, symbol, or phrase that is used to identify an entity’s products and to distinguish these products from another entity.[3] Marks are grouped into four different categories to assist in determining whether a mark distinguishes one product from another: (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic.[4] An arbitrary or fanciful mark is one where the mark bears no logical relationship to the underlying product.[5] A suggestive mark suggests a characteristic of the underlying product.[6] Arbitrary and suggestive marks afford the highest levels of protection of a trademark.[7] Descriptive marks describe a characteristic of a mark.[8] In order for a descriptive mark to receive trademark protection, the mark must acquire secondary meaning.[9] A mark has a secondary meaning when the public associates the mark with the producer, rather than the underlying product.[10] A generic mark refers to the category of the underlying the product and is offered no trademark protection.[11]

Further, to receive trademark protection, the mark must be more than a mere ornamental design.[12] In order to gain this protection, the design of the mark must acquire distinctiveness that would cause the public to view the mark as distinctively belonging to the mark holder.[13] The size, location, and dominance of the mark on goods are facts in determining whether the mark is ornamental or a mark of the brand.[14] On clothing, small marks may be recognized as trademarks by consumers whereas large designs may not be recognized by consumers as trademarks.[15] A portion of a mark may be registered as a trademark only “if that portion presents a separate and distinct commercial impression.”[16]

Once a mark has been used in commerce, that mark is then protected by trademark law.[17] However, registering a trademark provides additional protections for the holder of the trademark.[18] In order to register a trademark, the mark holder must submit an application for trademark protection to the United States Patent and Trademark Office (“USPTO”).[19] The USPTO may reject an application for a number of reasons, including failure to distinguish one’s product from others in commerce or a previously filed application for the same mark.[20]

III. History of The Ohio State University

The Ohio State University (“the University”) was founded in 1870 as a land-grant institution named the Ohio Agricultural and Mechanical College.[21] This name was due to the location of the school within a farming community.[22] However, the name was changed to “The Ohio State University” in 1878.[23] Those in favor of the name change supposed the original name of the University was too narrow in scope, and that the narrow naming was inadequate for the only land-grant university in Ohio.[24] The University’s first president, Edward Orton, believed the name change would separate the University from the other colleges in Ohio.[25] Legends have said that the University included “The” in the official name to show other colleges that the University was intended to be the leader of the state in both size and funding.[26] Other stories state that the “The” is an acronym for “Tradition, Honor, Excellence.”[27] However, there is no historical basis for this explanation of the article adjective.[28]

In 1977, the University began using a logo that identified the school as “OSU.”[29] However, this logo allowed room for confusion, as “OSU” could refer also refer to Oklahoma State University or Oregon State University.[30] In response to these concerns, the University began using a new logo in 1986 that moved away from the “OSU” branding and began referring to the University as “The Ohio State University.”[31] A motivation for this symbol change was to “reflect the national stature of the institution.”[32]

IV. The University’s Trademark Application

On August 8, 2019, the University filed a trademark application for the mark “THE” in reference to the “The” in the “The Ohio State Unviersity.”[33] This mark was designed to be placed on clothing—specifically t-shirts, baseball caps, and hats.[34] The application appeared to concern an arbitrary mark, as the word “THE” does not directly relate to the types of clothing suggested in the application. The University claimed to have been using this mark since August 2005.[35] To support the University’s application for trademark protection, the University included screenshots from the University’s official online athletic shop which showed various clothing items adorned with “THE” in bold text on the front of the clothing items.[36]

The USPTO responded to the University’s application on September 11, 2019, identifying two issues with the application: (1) a previously filed application; and (2) a failure to function as a mark.[37] The USPTO referenced a trademark application that had been filed by Marc Jacobs Trademarks, L.L.C. (“Marc Jacobs”) seeking protection for “THE” as a mark on a wide range of clothing and accessory items including backpacks, handbags, underwear, and socks.[38] If the Marc Jacobs application were to be approved and become registered, then there would be a likelihood of confusion between the two marks, according to the USPTO.[39] Marc Jacobs sought to use the mark for a line of products, such as “THE BACKPACK MARC JACOBS” and “THE VELVETEEN JEAN JACKET MARC JACOBS.”[40] However, the Marc Jacobs application had an issue in that it sought to trademark only a portion of the mark on the products, according to the USPTO.[41] Also, the USPTO alleged that the Marc Jacobs application failed to distinguish the Marc Jacobs products from others.[42]

The second issue the USPTO identified in the University’s application was that “THE” failed to function as a mark because the manner in which “THE” is displayed on the clothing items is merely ornamental.[43] “THE” is across the upper center area of the submitted t-shirt example and across the front of the submitted hat example, both of which are common locations for ornamental designs on clothing.[44] The USPTO suggested that consumers would view “THE” as purely ornamental rather than a trademark to identify the source of the goods and to distinguish the goods from others.[45]

V. Discussion

While the University received a negative result on the initial application to the USPTO, there is still a possibility that the trademark for “THE” will be granted. This will depend upon the outcome of the Marc Jacobs application and any subsequent amendments to the University’s application. If the Marc Jacobs application is granted a trademark, then Marc Jacobs will have priority for the trademark of “THE” over the University. In order for Marc Jacobs to obtain this trademark, Marc Jacobs must convince the USPTO that “THE” is the entirety of the branding of this line of products and that using “THE” distinguishes these Marc Jacobs products from competitors. Alternatively, Marc Jacobs may convince the USPTO that “THE” produces a separate and distinct commercial impression from the rest of the mark.

If Marc Jacobs fails to convince the USPTO that its mark satisfies the requirements for trademark, then the University may have the opportunity to trademark “THE.” If the University has this opportunity, then the university will need to prove that “THE” is a mark and not merely an ornamental portion of design. This can be done by showing examples of times where “THE” was used strictly as a way to show branding for the University, such as a small logo on a shirt used to identify the source of the shirt. Without examples of this, the University’s application will not be able to pass the ornamental design test and will not be able to receive registered trademark status.

VI. Conclusion

Although there is still a possibility The Ohio State University is able to register a trademark for its first article adjective, there are still many obstacles before this could become a reality. The USPTO will have to determine whether “THE” distinguishes clothing from The Ohio State University from other brands’ clothing.

[1]15 U.S.C. § 1127 (2019). 

[2]U.S. Trademark Application Serial No. 88571984 (filed Aug. 8, 2019); Non-Final Office Action, U.S. Trademark Application Serial No. 88571984 (sent Sep. 11, 2019).

[3]15 U.S.C. § 1127 (2019).

[4]Abercrombie & Fitch Co. v. Hunting World, Inc. 537 F.2d 4, 9 (2nd Cir. 1976).

[5]Id. at 11. 

[6]Id. at 10. 

[7]Id. at 11. 

[8]Id. at 10. 


[10]Zatarain’s, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 790 (5th Cir. 1983).

[11]Abercrombie & Fitch Co., 537 F.2d at 9.

[12]In re Lululemon Athletica Can. Inc., 105 U.S.P.Q.2d (BNA) 1684, 1686 (T.T.A.B. 2013).


[14]In re Pro-Line Corp., 28 U.S.P.Q.2d 1141, 1142 (T.T.A.B. 1993).


[16]In re Lorillard Licensing Co., 99 U.S.P.Q.2d 1312, 1316 (T.T.A.B. 2011) (citing In re 1175854 Ontario Ltd., 81 U.S.P.Q.2d 1446, 1448 (T.T.A.B. 2006)).

[17]15 U.S.C. § 1127 (2019).

[18]See, e.g.,15 U.S.C.§ 1065 (2019); 15 U.S.C. § 1072 (2019); 15 U.S.C. § 1121 (2019).

[19]15 U.S.C. § 1051 (2019). 

[20]15 U.S.C. § 1052 (2019). 

[21]The Ohio State University eHistory, The Ohio State University, [].


[23]The Ohio State University – University Libraries, FAQs, [].


[25]Id.; The Ohio State University Office of the President, Past Presidents, [].

[26]The Ohio State University – University Libraries, supra note 23.

[27]Kelsey Tschanen, THE Ohio State University?, Buckeyes Blog (Nov. 3, 2015), [].


[29]The Ohio State University – University Libraries, supra note 23. 




[33]U.S. Trademark Application Serial No. 88571984, supra note 2. 




[37]Non-Final Office Action, supra note 2.

[38]Id.; U.S. Trademark Application Serial No. 88416806 (filed May 6, 2019).

[39]Non-Final Office Action, supra note 2.

[40]Non-Final Office Action, U.S. Trademark Application Serial No. 88416806 (sent Aug. 28, 2019).



[43]Non-Final Office Action, supra note 2.



Amber Guyger Conviction: Anomaly or New Direction?

“Dallas County Court House”by jimmywayne is licensed under CC BY-NC-ND 2.0

Hunter Poindexter, Associate Member, University of Cincinnati Law Review

I. Introduction

On October 1, 2019, a Dallas County jury convicted former police officer Amber Guyger of murdering twenty-six-year-old Botham Jean in his apartment.[1] Guyger’s case sparked national attention and maintained the focus of numerous media outlets.[2] The incident was unique from most police-involved shootings; a white female off-duty police officer shot and killed an unarmed black man after she mistakenly entered his apartment on her way home from work.[3] While Guyger was convicted and sentenced to ten years in prison, one significant question still remains: what impact, if any, does this high-profile case have on future prosecutions of police misconduct?  

II. Background

On September 6, 2018, Amber Guyger entered into what she thought was her apartment after a thirteen and a half hour shift.[4] However, Guyger did not walk into her apartment; rather, she entered the apartment of Botham Jean.[5] Upon seeing Jean, Guyger became concerned that he was an intruder and subsequently shot Jean in the chest twice, killing him.[6] Three days after Jean’s death, Guyger was arrested on one count of manslaughter. Following Guyger’s arrest, the Dallas Police Department terminated her employment.[7] Although Guyger was initially charged with manslaughter, a grand jury formally indicted her for Jean’s murder two months after the shooting.[8]

Guyger’s murder trial began on September 23, 2019.[9] Prosecutors argued that Guyger acted unreasonably in shooting Jean, asserting that Guyger missed several obvious signs that she was on the wrong floor of her apartment complex.[10] Alternatively, Guyger’s defense counsel contended that Guyger was tired after her shift, and that she reasonably acted in self-defense under Texas’s Castle Doctrine.[11] Following closing arguments, the jury returned a guilty verdict and sentenced Guyger to ten years in prison.[12]

Guyger’s case received significant media attention.[13] However, this case is far from the first high-profile police shooting in the past decade.[14] What makes Guyger’s case unique is the fact that she was prosecuted and convicted. Prosecutions for police shootings, let alone convictions, are uncommon.[15] According to one study, nearly one thousand police-involved shootings occur each year; however, from 2005 to 2017, only eighty police officers were arrested for murder or manslaughter in relation to an on-duty shooting.[16] Of those eighty officers arrested, twenty-eight would be convicted by 2017.[17] While the number of officers arrested and convicted pales in comparison to the number of officer-involved shootings, it should be noted that the majority of deadly police shootings are found to be justified; in 2015, ninety-eight percent of all fatal police shootings were deemed justified.[18]  

III. An Anomaly?

Guyger’s highly publicized conviction poses an interesting question as to how future instances of police misconduct might be prosecuted. Before that question can be explored, it is first necessary to discuss the possibility that Guyger’s case is an outlier of the norm. That is, this incident is somewhat atypical of other high-profile police-involved shootings. 

Guyger was off-duty when she killed Jean. This was not an incident of Guyger shooting someone in her official capacity as a police officer; rather, this shooting occurred while Guyger was coming home from a shift. Moreover, this wasn’t a case of an intruder breaking into Guyger’s home. Guyger, herself, had unlawfully entered Jean’s apartment and shot him. Thus, it is plausible that the jury decided this case on the merits, without any regard to Guyger’s status as a police officer. Should this be the case, Guyger’s conviction might not have any bearing on how prosecutors try police misconduct cases in the future.

IV. The Future of Police Prosecutions

To gain a better understanding of the impact of Guyger’s case, it is necessary to first look at the balancing act prosecutors must apply when bringing charges against police officers.  Prosecutors often rely on the testimony of police officers to maintain convictions against criminal defendants.[19] As such, prosecutors generally seek to build strong relationships with police departments.[20] On the other hand, prosecutors also have a duty “to seek justice.”[21] In instances of police misconduct, prosecutors must balance their relationship with local police and the need to provide justice to the public.[22]

In addition to this balancing act, prosecutors – particularly elected district attorneys – are often concerned with their reputation, as public perception may impact election results.[23] Should prosecutors act contrary to the will of the public, their constituents may hold them accountable during election cycles.[24] In Guyger’s case, the public outcry for justice was swift.[25] After Jean’s murder, protesters in Dallas took to the streets.[26] While it is unclear why the Dallas District Attorney sought a murder charge for Guyger after her manslaughter arrest, it is possible that the public’s demand for justice led to an increased charge. 

Prosecutors in the Guyger trial won a difficult case, as convictions of white female police officers are rare.[27] Moreover, Guyger was sentenced to a decade in prison.[28] While a broad faction of the public was unhappy with the sentence,[29] it should be noted that Guyger’s sentence falls significantly above the average sentence length for on-duty police officers involved in shootings.[30] Prior to the Guyger case, prosecutions for police-involved shootings were uncommon.[31] Most of the time, these shootings were deemed to be justified;[32] however, there are likely instances in which prosecutors drop or lower charges against officers to avoid conflicts with local police.[33] The Guyger case might change this dynamic. 

The public outpouring following Jean’s murder indicated the community’s desire for justice. With this public support, the prosecution achieved an uncommon murder conviction in a vastly publicized trial. Because of the success and public support of Guyger’s prosecution in Dallas, district attorneys across the country might view this as an opportunity to increase prosecutions for police misconduct, especially in high-profile shootings. This will be particularly true if these prosecutions lead to increased job security for the district attorneys by way of reelection. However, this might also prove to be a double-edged sword for prosecutors, as they may find themselves lacking the vital support of the police force. Ultimately, the decision on whether to prosecute police misconduct cases may boil down to public support versus the need for police assistance. Nonetheless, Guyger’s conviction might open the door for more prosecutions in prominent cases of police violence. 

V. Immediate Aftermath

On October 12, 2019, just eleven days following Guyger’s conviction, a Fort Worth, Texas, police officer shot and killed a woman in her home while responding to a call for a safety check.[34] The victim, twenty-eight-year-old Atatiana Jefferson, had been playing video games with her nephew just moments before she was killed.[35] The police officer, Aaron Dean, resigned from his position with the Fort Worth Police Department, and he was arrested and charged with murder two days after the shooting.[36]

The Fort Worth shooting is significant as it pertains to Guyger’s case for a number of reasons. First, Dallas and Fort Worth neighbor one another and are located within the same metropolitan area.[37] Therefore, the Fort Worth shooting cannot be analyzed in a vacuum; the Guyger shooting almost certainly has an impact on this subsequent case, particularly because both shootings impacted the same community. Therefore, the public pressures felt by Dallas prosecutors to try Guyger are likely the same pressures impacting prosecutors and police in Fort Worth.

 Secondly, Dean was charged with murder only two days following the shooting. As mentioned throughout this post, charges for police-involved shootings are exceedingly rare.[38] Guyger’s conviction could explain this discrepancy. With Guyger’s conviction occurring less than two weeks prior to this incident, the public support for charging Dean with murder was likely high, especially in the Dallas-Fort Worth metroplex. Moreover, the fact pattern of the Fort Worth shooting is significantly similar to the Guyger shooting. As such, police and prosecutors likely believed that the Fort Worth shooting, like the Guyger shooting, would yield a murder conviction.

What is fascinating about the Fort Worth shooting was the number of law enforcement entities calling for Dean to be brought to justice. Shortly after the shooting, Fort Worth Interim Police Chief Ed Kraus stated that there was “no excuse” for the shooting, and that Dean “will be held accountable.”[39] Moreover, a police detective in Fort Worth publicly called on other law enforcement officers to apologize for Jefferson’s death.[40] With this backdrop, it appears that the prosecutorial balancing act weighs heavily in favor of vigorously prosecuting Dean, as both local law enforcement and the public seek justice for Atatiana Jefferson. 

VI. Conclusion

Dallas County prosecutors achieved a relatively unprecedented conviction for Amber Guyger. While Guyger’s conviction is significant, it may be considered an anomaly from other police-involved shootings, and thus the case may have no bearing on future prosecutions. However, Guyger’s case also has the possibility of shifting the way in which prosecutors view police misconduct cases. Because of the public support for trying Guyger for murder, other district attorneys across the United States might consider vigorously prosecuting police misconduct, so long as these prosecutions do not significantly damage their relationships with local police forces. In the Fort Worth shooting incident, prosecutors do not appear to have their normal balancing burdens; rather, both the law enforcement and the public favor holding Dean accountable for Jefferson’s murder. 

[1]Jake Bleiberg, Jury convicts Amber Guyger, ex-police officer who fatally shot neighbor, Boston Globe (Oct. 1, 2019), [].

[2]David Tarrant, News media all-in on Amber Guyger trial as viewers watch live-stream feeds, Dallas Morning News (September 23, 2019), [].

[3]Bleiberg, supra note 1.

[4]Bill Hutchinson, Death of an Innocent Man: Timeline of wrong-apartment murder trial of Amber Guyger, ABC News (Oct. 2, 2019), []. 






[10]Darran Simon & Eliott C. McLaughlin, Prosecutor says Amber Guyger missed signs she was in the wrong apartment before she shot Botham Jean, CNN (September 24, 2019, 12:34 AM), [].

[11]Erik Ortiz, Jurors in Amber Guyger murder trial are considering Texas’ Castle Doctrine, NBC News (Oct. 1, 2019), []. 

[12]Eliott C. McLaughlin, Amber Guyger gets 10-year murder sentence for fatally shooting Botham Jean, CNN (Oct. 3, 2009), [].

[13]David Tarrant, News media all-in on Amber Guyger trial as viewers watch live-stream feeds, Dallas Morning News (September 23, 2019), [].

[14]Josh Hafner, Police killings of black men in the U.S. and what happened to the officers, USA Today (March 29, 2018),[]

[15]Madison Park, Police Shootings: Trials, convictions are rare for officers, CNN (Oct. 3, 2018), [].

[16]Philip M. Stinson, Police Shootings: What We Know and What We Don’t Know, Criminal Justice Faculty Publications 78 (2017).



[19]Caleb J. Robertson, Restoring Public Confidence in the Criminal Justice System: Policing Prosecutions When Prosecutors Prosecute Police, 67 Emory L. J. 853, 866 (2018). 

[20]Id. at 867. 

[21]Id. at 860. 

[22]Id. at 867. 

[23]Ronald F. Wright, How Prosecutor Elections Fail Us, 6 Ohio St. J. Crim. L. 581 (2009).


[25]Tom Dart, Dallas: calls for justice after police officer kills man in his own home, The Guardian (Sep. 13, 2018), [].

[26]Jason Whitely & Ryan Osborne, Dozens protest over Botham Jean shooting, briefly shutting down I-30, WFAA (September 14, 2018), []. 

[27]See Janell Ross, Amber Guyger conviction highlights role image, notions of character play in trials, NBC News (Oct. 4, 2019), [].

[28]Eliott C. McLaughlin, Amber Guyger gets 10-year murder sentence for fatally shooting Botham Jean, CNN (Oct. 3, 2009), [].

[29]Ashley Killough & Madeline Holcombe, Emotions run high in and outside courtroom after Amber Guyger sentenced to 10 years for Botham Jean’s murder, CNN (Oct. 3, 2019), []

[30]Philip M. Stinson, Police Shootings: What We Know and What We Don’t Know, Criminal Justice Faculty Publications 78 (2017) (with the average sentence for the twenty-eight convictions being forty-eight months). 

[31]See Philip M. Stinson, Police Shootings: What We Know and What We Don’t Know, Criminal Justice Faculty Publications 78 (2017).

[32]See id. 

[33]Peter A. Joy & Kevin C. McMunigal, Police Misconduct and Release-Dismissal Agreements, 33 Crim. Just. 31 (2018) (citing Peter A. Joy & Kevin C. McMunigal, Prosecutorial Conflicts of Interest and Excessive Use of Force by Police, 30 Crim. Just. 47 (2015)). 

[34]Holly Yan, Atatiana Jefferson’s nephew watched her get killed by Fort Worth police. The aut may have saved the boy’s life, CNN (Oct. 14, 2019), [].


[36]Holly Yan et al., Former Fort Worth police officer charged with murder for killing Atatiana Jefferson in her own home, CNN (Oct. 14, 2019), [].

[37]Frank Heinz, DFW Fastest Growing Metro in US, Fort Worth Moves Up 13thLargest City, NBC DFW (May 23, 2019), [].

[38]See Philip M. Stinson, Police Shootings: What We Know and What We Don’t Know, Criminal Justice Faculty Publications 78 (2017).

[39]Erin Donaghue, “No excuse”: Fort Worth police chief vows officer who killed black woman in her home will be held accountable, CBS News (Oct. 15, 2019), [].

[40]Scottie Andrew, A Fort Worth police officer urges cops to apologize for Atatiana Jefferson’s shooting death, CNN (Oct. 16, 2019), [].

A Home Run for the Reds and a Double Strikeout for Ohio

“Home plate”by syntheticpanda is licensed under CC BY-NC-ND 2.0

Nicolette Crouch, Associate Member, University of Cincinnati Law Review

This is the first article in a two-part discussion about Ohio sales and use tax. Click here to read the follow-up, which more closely analyzes the practical consequences of the ruling in Cincinnati Reds, L.L.C. v. Testa for the Reds.

I. The Reds Cheer Another Victory

All I do is win, win, win no matter what . . . every time I step into the building; Everybody’s hands go up . . . .”[1]

Following a Cincinnati Reds baseball victory, fans throughout Great American Ballpark can be seen raising their hands at the prompting of this song. After Cincinnati Reds, L.L.C. v. Testa, Tax Comm’r,[2] the Reds can join fans and raise their hands in celebration of another victory – this one over the Ohio Commissioner of Taxation. In a disappointing decision for Ohio tax authorities, the Ohio Supreme Court decided that the Reds are exempt from paying “use” tax under Ohio’s “sale for resale” exemption on bobblehead statues that are given away to fans at games.[3] Although taxpayers cheer this victory alongside the Reds, the Reds decision may result in less tax revenue for Ohio, meaning that the Commissioner may look for other ways to make up this revenue such as enacting new taxes, raising tax rates, or broadening the tax base of existing taxes.

This article discusses the real-world implications of the Reds decision. Part II reviews sale and use tax law in Ohio. Part III focuses on the Ohio Supreme Court’s recent ruling in Cincinnati Reds, L.L.C. v. Testa, Tax Comm’r[4] that found that the Reds were exempt from paying use tax on bobbleheads and other promotional items that were given away at select games. Finally, Part IV explains why Ohio Supreme Court should have given more weight to the administrative burden and practical effects created by the Reds ruling.

II. Sales and Use Tax in Ohio

Sales tax is imposed on retail sales to consumers of tangible personal property unless an exemption applies.[5] Many consumers are familiar with sales tax and recognize the tax when it appears as a line item on the bottom of receipts. For example, when Ohio consumers purchase clothing at Marshalls, they see a line item on the receipt for sales tax. Sales tax is a flow-through tax, meaning the seller collects the tax from the buyer at the time of purchase and remits the collected money to the state taxing authority.[6] In the Marshalls example, Marshalls collects the sales tax liability paid and remits the collected money to the Ohio Department of Taxation.

But consumers are less familiar with the use tax. The use tax simply fill in gaps where sales tax leave off.[7] If sales tax is due, but not collected by the seller for whatever reason, a use tax of equal amount is due from the buyer.[8] Use tax is applied to a buyer when a sale takes place out of state, such as when an Ohio resident buys an item in Indiana but “uses” the item in Ohio.[9] If the seller does not collect the use tax at the time of purchase and remit it to the Ohio Department of Taxation, the end user is required to remit the use tax directly to the taxing authority.[10]

Ohio provides many exceptions and exemptions from sales and use tax, one of which provides that items bought exclusively for resale are exempt from sales and use tax.[11] This “sale for resale” exemption (“Resale Exemption”) allows a purchaser to avoid paying sales or use tax on an item that the purchaser buys with the intent to resell the item to a consumer in the same form.[12] The Resale Exemption acts to prevent double taxation as an item moves through the stream of commerce, first, from the manufacturer to a retailer, and second, from the retailer to the end consumer.[13] For example, a retailer who buys clothing from a manufacturer with an intent to resell the clothing does not have to pay sales tax on the clothing at the time of the purchase. Instead, the tax flows through to the end customer; the retailer collects sales tax liability from the customer at the time of sale and remits the collected money to the Ohio Department of Taxation.

III. Cincinnati Reds, L.L.C. v. Testa , Tax Comm’r

In 2018, the Ohio Supreme Court held that the Reds were exempt from paying use tax on bobbleheads and other promotional items that were given away at select home games throughout the team’s season.[14] The case reached the Supreme Court after the Ohio Board of Tax Appeals (“BTA”) upheld the Commissioner’s determination that the Reds owed use tax on promotional items that the team bought from vendors.[15] At the BTA hearing, the Reds CFO explained that the Reds advertised bobbleheads and other promotions items like shirts, towels, bats, and player cards in advance of the game using radio, television, billboards, and fliers.[16] The purpose of the promotional items was to entice fans to attend games that otherwise might have had lower attendance.[17] The Reds purchased these promotional items from third-party vendors and factored that cost into the price of all tickets sold during the season, along with other overheads costs.[18] This allowed the Reds to avoid charging higher ticket prices at games where bobbleheads were given away.[19] When the bobbleheads or other advertised promotional items ran out, the Reds provided fans with alternative items, because, as the CFO explained, fans expected to receive the advertised promotional items upon attending the game.[20]

The BTA found that the Reds owed use tax on the promotional items because the Reds purchased the items with the intent to give them away for free to fans.[21] The Reds challenged this finding and argued that the promotional items were purchased for resale and therefore, the promotional items were exempt from sales and use tax under the Resale Exemption.[22]

Accordingly, the Ohio Supreme Court’s analysis focused on whether the Reds purchased the bobbleheads with the intent to resell them.[23] The court reasoned that in order for these promotional items to fall under the Resale Exemption, the Reds had to prove that the transactions met the definition of a “sale” under Ohio Revised Code (“ORC”) 5739.01(B)(1).[24] The court explained  that a “sale” required the transfer of possession or title of the property for “consideration,” which has a specific legal meaning.[25] Thus, the Reds would prevail only if they could show that attendees provided consideration in exchange for the promotional items, instead of merely receiving the items for free.[26]

The BTA found that the attendees provided no consideration for the promotional items because the attendees paid the same price to attend a game regardless of whether a promotional item was offered.[27] In other words, the BTA held that attendees paid only for the right to attend the game and received the promotional item for free.[28] But the Ohio Supreme Court disagreed.[29] The court sided with the Reds and held that attendees indeed provided consideration in exchange for the promotional items.[30] The court concluded that attendees paid one portion of the ticket price for the right to attend the game and paid a separate portion of the ticket price for the right to receive the promotional item.[31]

Accordingly, the court held that the Reds purchase of these bobbleheads and other promotional items met the requirements of the Resale Exemption and therefore, the Reds were not required to pay use tax on the bobbleheads when the Reds purchased them.[32] Instead, because use tax is levied on the end consumer, the fans bear the burden of paying the use tax associated with these promotional items; the Reds bear the burden of collecting and remitting the use tax payments.

IV. Discussion

Although the Reds decision absolved the Reds themselves from owing use tax on the bobbleheads and other promotional items (collectively, “Giveaways”), Ohio taxing authorities are permitted to seek use tax on the “separate and explicit” resale of bobbleheads and other promotional items to ticket buyers.[33] After all, Ohio’s primary source of revenue is sales and use tax.[34] Therefore, the Reds may be required to collect and remit use tax on the portion of the ticket price allocated to just the Giveaways.[35]Yet, the burden of collecting use tax on the Giveaways is notably absent from the court’s opinion in Reds.[36] Additionally, the Reds decision could open the doors for taxpayers to attempt to extend the Resale Exemption to other promotional items that customers “expect[] that they will receive. . . .”[37]

A. Challenges of Collecting Sales Tax on Giveaways after Reds

After the Reds decision, Ohio may direct the Reds to collect and remit use tax on the portion of the ticket price allocated to just the Giveaways. Under ORC 5739.025, the amount of tax owed on the Giveaways is determined by the price of the item sold.[38] The price of a Giveaway could include the cost of the item, transportation costs, delivery charges, storage and distribution costs, and any other charges necessary to complete the sale.[39] After the price of a Giveaway is determined, the Reds would generally multiply the price by the statutory tax rate.[40]

However, because the Reds included the price of the Giveaway into the overall ticket price, determining the use tax on just the Giveaways would be complex and burdensome because it is difficult to allocate a portion of the ticket price to the Giveaways.[41] The overall ticket price for a sporting event includes other costs such as overhead costs and is heavily influenced by demand, weather conditions, overhead costs, and other factors.[42] Importantly, admissions to sporting events are generally not subject to sales tax in Ohio (“Admissions Exemption”).[43] Therefore, the Reds would have to mechanically separate the price of Giveaways from the price of attending a game.

This administrative burden and business risks connected with raising overall ticket prices to reflect the use tax would likely lead the Reds to resist collecting and remitting use tax on Giveaways. The Reds would likely argue that the Giveaways are covered by the Admissions Exemption and therefore, the Reds do not have to collect sales or use tax from fans for both the ticket purchase and the Giveaway “purchase.” Accordingly, the Reds decision likely means a win for the Reds and a loss for the Ohio sales and use tax fund: Reds 1 Ohio 0.

B. Potential Impact on Other Promotional Items after Reds

The Reds decision may expand the Resale Exemption to transactions that previously generated sales and use tax revenue for Ohio. The Reds case provides grounds for taxpayers to argue that transactions involving promotional items qualify for the Resale Exemption if the promotional item is an integral part of a customer’s overall purchase and its cost is included in the overall purchase price.

For example, in Burger King, Inc. v. State Tax Comm., a New York appeals court held that purchases of paper products used to hold food to be sold to customers fell within New York’s resale exemption.[44] Although the Burger King case was decided under New York law, after the Reds decision, an Ohio court would likely hold the same given a similar set of facts. Like the fans who purchased bobbleheads in Reds, restaurant patrons purchase paper and plastic products used as containers for food and beverages. Indeed, a customer cannot purchase a cup of coffee without simultaneously purchasing a container to hold the beverage. Therefore, under Reds, an Ohio court would probably conclude that a restaurant’s purchase of paper and plastic products falls within the Resale Exemption. To the extent that taxpayers paid sales and use tax on promotional items before the Reds decision, taxpayers now have a strong argument that more purchases of these promotional items qualify for the Resale Exemption. Ohio may consequently collect less tax revenue: Taxpayers 1 Ohio 0.

V. Conclusion

The Reds decision is double strikeout for the Ohio Department of Taxation. In addition to likely not getting a cut of the Giveaways under the Admissions Exemption, the Reds decision will likely encourage Ohio taxpayers to test the limits of the decision and seek the Resale Exemption for other promotional items. The real-world impact of both these possibilities is less sales and use tax revenue for Ohio. However, taxpayers should keep in mind that the Reds case dealt with facts that were favorable to the Reds. Had the case dealt with purchases other than ticket purchases, an escape route like the Admissions Exemption may not have been available. Therefore, although taxpayers may cheer the idea of not paying sales and use tax for promotional items, taxpayers should also weigh the administrative burden and business risks connected with shifting the burden of paying the tax to customers. Taxpayers should consider paying the tax themselves and making up the costs in other ways.

In conclusion, the Reds case resulted in a Reds victory and a milestone for Ohio sales and use tax jurisprudence. We can expect to see taxpayers push the limits of this decision in the near future.

[1]DJ Khaled, All I Do Is Win (We The Best Music Group, 2010).

[2]Cincinnati Reds, L.L.C. v. Testa, Tax Comm’r, 155 Ohio St. 3d 512, 2018-Ohio-4669, 122 N.E.3d 1178 (Ohio 2018).

[3]Id. at ¶ 36.

[4]122 N.E.3d.

[5]Hellerstein & John A. Swain, State Taxation ¶ 12.01, 3rd ed. 2001; Ohio Dep’t of Taxation, Sales & Use Tax,, (last visited Sept. 28, 2019).

[6]State Taxation at ¶ 12.01.

[7]See Ohio Dep’t of Taxation, Sales & Use Tax,, (last visited Sept. 28, 2019); 122 N.E.3d 1178 at ¶ 14.

[8]State Taxation at ¶ 16.01.

[9]What is the difference between sales tax and use tax?, Sales Tax Institute, (last visited Sept. 28, 2019).

[10]Ohio Rev. Code Ann.§ 5741.12 (West 2009).

[11]Ohio Rev. Code Ann.§ 5739.01(E) (West 2019); Ohio Rev. Code Ann.§ 5741.02(C)(2) (West 2018).

[12]Dan Trevas, Must Sports Team Pay Tax on Bobbleheads and Other Giveaways?, Oral Argument Previews (June 12, 2018)


[14]Cincinnati Reds, L.L.C. v. Testa, Tax Comm’r, 155 Ohio St. 3d 512, 2018-Ohio-4669, 122 N.E.3d 1178, at ¶ 36.

[15]See id. at ¶ 4-13.

[16]Id. at ¶ 7.


[18]See id. at ¶ 9.


[20]Id. at ¶ 10.

[21]Id. ¶ 11-12.

[22]See id. at ¶ 13-14.

[23]Id. at ¶ 15.


[25]Id. at ¶ 16-17.

[26]Id. at ¶ 17.

[27]Id. at ¶ 18.


[29]Id. at ¶ 36.


[31]Id. at ¶ 24.

[32]Id. at ¶ 36.

[33]Id. at¶ 32.

[34]Ohio Dep’t of Taxation, Annual Report Fiscal Year 2018,, (last visited Sept. 28, 2019). 

[35]Ohio Rev. Code Ann.§ 5739.03 (West 2019) (provides that the sales tax “shall be paid by the consumer to the vendor, and each vendor shall collect from the consumer, as a trustee for the state of Ohio, the full and exact amount of the tax payable on each taxable sale . . . .”)

[36]See 122 N.E.3d.

[37]Id. at¶ 36.

[38]Ohio Rev. Code Ann.§ 5739.025(A) (West 2017) (“A vendor shall compute the tax on each sale by multiplying the price by the aggregate rate of taxes . . . .”).

[39]See Ohio Rev. Code Ann. § 5739.01(H)(1) (West 2019).

[40]Ohio Rev. Code Ann.§ 5739.025 (West 2017).

[41]122 N.E.3d at ¶ 9.

[42]See Tim Parker, Why The Prices Of Sports Tickets Vary So Much, Investopedia (Oct. 9, 2012),

[43]See Ohio Rev. Code Ann. §§ 715.013 (West 2003), 5739.01 (West 2019), 5739.02 (West 2019); Ohio Dep’t of Taxation, Admissions Tax, Sales and Use, (last visited Oct. 18, 2019).

[44]Burger King, Inc. v. State Tax Commn., 421 N.Y.S.2d 668 (N.Y. App. Div. 3d Dept. 1979), aff’d as modified, 416 N.E.2d 1024 (N.Y. 1980).