The Location of Data: An Issue the Courts have yet to Address

Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review


Technology advances much faster than our judicial system that evolves slowly through precedent. However, technological advances place judges in situations where they must apply the antiquated precedential law to new technology. In December, the Second Circuit faced this problem in Microsoft Corp. v. United States,[1] when it held that the government cannot compel Internet Service Providers (ISPs) to produce electronic data that is stored overseas, even by a warrant.[2] Now, Microsoft need not comply with a warrant that sought readily-accessible data, because that data was stored on servers in Ireland. The court dealt with the data as though it were any other physical object, and did not account for the differences posed by the new technology.[3] By doing so, the court failed to address the novel issue regarding data and its lack of a territorial nature, which will pose challenges to United States law enforcement in the future. However, irrespective of the court’s considerations, the outcome of treating data territorially is beneficial from a foreign policy standpoint. Thus, even though the Second Circuit missed an opportunity to rule on the novel problem presented by data, the court shored up our foreign relations.

The Novel Issue: Where is Data?

Electronic data is significantly different than physical objects because data can be both created and accessed from anywhere with an internet connection. Although data can be created and accessed from almost anywhere, data is still physically stored in server farms located all over the world.[4] Recently, there has been significant scholarly dispute regarding where data is located for jurisdictional purposes.[5] As evidenced by the ruling in Microsoft, data is currently presumed to be located at the server’s location, as evidenced by the ruling in Microsoft, which is in line with the rules of other countries.[6] However, electronic data is arguably “un-territorial,” [7] because its physical location is largely irrelevant—so perhaps data should be considered to not have a location for jurisdictional purposes. Jennifer Daskal argues, “territorial-based rules of the game are premised on two key assumptions: that objects have an observable, identifiable, and stable location, either within the territory or without; and that the location matters.” [8] Data does not comply with either of these assumptions: (1) it is constantly flowing, and (2) its physical location has no bearing on any interaction with it. Thus, the legal location of data should arguably be anywhere that it can be accessed or created.

What the Microsoft Court Addressed: Extraterritoriality

In Microsoft, a magistrate judge issued a warrant under the Stored Communications Act[9] (SCA), requiring Microsoft to produce certain emails.[10] However, some of the emails were stored on a server in Dublin, Ireland.[11] Although the question of where data is located is one of first impression[12], and despite the ongoing debate regarding the un-territorial nature of data, the Microsoft court essentially disregarded the issue because “no party dispute[d] that the electronic data subject to this [w]arrant [are] in fact located in Ireland.”[13] Nor did a party dispute that Microsoft would have to “collect the data from Ireland.”[14] Therefore, the court found no reason to address whether data was exceptional, and defaulted to treating it like a physical object, “located” where it is stored.

Therefore, the question in Microsoft became whether an extraterritorial warrant is valid under the SCA, regardless of the warrant’s intended object. The court applied the two-part test from Morrison v. Nat’l Austl. Bank Ltd., which determines whether a statute is meant to be used extraterritorially.[15] Since (1) there is no explicit text that states that the act should be applied exterritorialy, and (2) the proposed use of the statute was not extraterritorial, the court found that the SCA does not apply extraterritorially.[16] The court found no reason to override the strong congressional presumption against the extraterritorial application of statutes.[17] Then, the court found that enforcing the warrant would be an extraterritorial application of the SCA.[18] The court reasoned that the congressional purpose of the SCA was to protect privacy, and since the privacy interest in this case was in Ireland, the warrant would apply the SCA extraterritorially, which made it invalid.[19]

Missing the Point

Although the court came to a judgment in Microsoft, the court did not address or resolve the un-territorial nature of data. Rather, the court explicitly ruled in favor of the notion that data is located on the servers where it is stored, despite never tackling the question. The court missed an opportunity to adapt to the new technology, and instead further entrenched itself in applying old law to new technology.

The Ramifications

Law enforcement officers will be severely hindered in obtaining evidence from ISPs that store their information abroad. Barring a different precedential ruling on data territoriality, there are now two paths for law enforcement to have jurisdiction over “extraterritorial” data in the future, and they come through the other branches of government. First, congress could amend the SCA to include provisions that deal with data as an exceptional circumstance. However, until that happens, law enforcement’s only option is to appeal to Mutual Legal Assistance Treaties (MLATs), which are agreements that the executive negotiates with other countries that aid in law enforcement through gathering and exchanging information. However, MLATs require bilateral action and thus often operate much more slowly.[20] Thus, the ruling means that critical information from ISPs, if it is stored overseas, may be very difficult to access under our current laws.

Other Considerations

Although the court did not consider the un-territorial nature of data, there is no guarantee that such a consideration would change the outcome of the case. First, the court could have considered the differences of data when compared to other objects, and still rejected that the difference mattered. Second, even if the court found that data is territorially unique, there is still a compelling reason to rule that seizing data stored overseas is extraterritorial and illegal—foreign policy consequences. If the United States were to authorize unilateral law enforcement intrusions into sovereign countries, it risks offending that country. Furthermore, the United States risks setting a dangerous international precedent that could allow foreign governments to unilaterally compel the production of data located in the United States through jurisdiction in its own country.[21]


Ultimately, considering the foreign political ramifications, the Microsoft court probably made the right decision. However, the court came to its conclusion too quickly, without addressing the debate regarding the location of data. Doing so, the court has made a precedent of dealing with data as it would deal with any physical object, something legal and technological scholars believe is outdated. The court had an opportunity to change the way data is understood, and to rule based on the unique foreign policy concerns that arise from data. Instead, the court settled for applying old law to new technology.


[1] 829 F.3d 197, 222 (2d Cir. 2016).

[2] Id.

[3] Id.

[4] Jonathan Nimrodi, 10 Facts You Didn’t Know About Server Farms, Cloudyn, (Sep. 8, 2014),

[5] See e.g. David R. Johnson & David Post, Laws and Borders — The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367, 1374-1376 (1996).

[6] The same is true in the UK; the High Court reached the same conclusion. See Jack Clark, Data Jurisdiction is Where Server is Located, Says Court,!.

[7]  Jennifer Daskal, The Un-Territoriality of Data, 125 Yale L.J. 326, 389-391 (2015).

[8] Id. at 328-9.

[9] 18 U.S.C. §§ 2701–2712 (2012).

[10] Microsoft, 829 F.3d at 200.

[11] Id. at 201

[12] See Daskal supra note 6 at 328.

[13] Id. at 209

[14] Id.

[15] Id. at 210

[16] Id.

[17]Id. at 216

[18] Id. at 220

[19] Id.

[20] Jennifer Daskal, A New UK-US Data Sharing Agreement: A Tremendous Opportunity, if Done Right, Just Security (Feb. 8, 2016).

[21] See Daskal supra note 6 at 397.

Bob the Builder on Demand: Labor Markets and a Changing Economy

Adam Pitchel, Associate Member, University of Cincinnati Law Review

Recent technology has changed labor markets for employers, employees, and consumers. The increase of temporary work channeled through an online or mobile-based system raises important questions about the roles and responsibilities of those working in a “gig economy.” Companies that utilize this business model such as Uber, Lyft, Handy, and Airbnb have faced criticism about classifying their workers as independent contractors rather than employees.[1] By doing so, these businesses avoid many of the responsibilities of a typical employer. For example, independent contractors are typically not entitled to anti-discrimination protections, payroll tax contributions, or healthcare benefits.[2] Proponents of this sort of business model champion the flexibility that it provides by allowing people to choose when they work.[3] Conversely, critics argue that this model merely serves to exploit laborers by collecting profits from their work while giving them little or no support.[4]

Issues regarding the applicability of the independent contractor label are currently being litigated in the state and federal court systems. Several class-action suits have been filed by current and former workers of these companies, alleging that they deserve to be categorized as employees rather than independent contractors.[5] Workers argue that their companies exercise too much control over their work product for them to be considered independent contractors.[6] It is likely that the eventual resolution of these suits will provide some guidance; however that will take a significant amount of time. Thankfully, policymakers around the country have drafted legislation that helps alleviate or interpret some of these issues. Legislators attempted to bridge the gap between service provider and worker by offering some benefits to workers while maintaining the independent contractor label.[7] By doing so, lawmakers have provided another way to resolve the question of whether certain workers and independent contractors or employees. Continue reading


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

Since the 1980s, an increasing number of United States-based corporations have been shifting assets overseas into low and no-tax jurisdictions to avoid paying high tax rates in the United States.[1] As a result, the corporate tax base has decreased in size, which creates problems for tax revenues. Some members of Congress have estimated stopping corporate inversions would save the United States’ tax base nearly forty-one billion dollars over ten years, although no study has been officially commissioned by the federal government to verify this number.[2] Although there are often a multitude of reasons why a company may decide to invert, the most prevailing justification is the significant tax savings.[3] The procedure and laws surrounding a company’s decision to invert to a low- or no-tax jurisdiction (“tax havens”), such as the Cayman Islands or Bermuda, are incredibly complex. The federal government has tried several initiatives to curb corporate inversions since the early 2000s, but corporations still find ways to invert. It is important to understand the different ways corporations invert before addressing how to solve the revenue gap created by inversions. While the government has been focusing on how to stop inversions, it would be more economical for the tax system to reexamine how it defines the location of a corporation, or its “residence”. This may provide a way for the Internal Revenue Service (“IRS”) and Congress to fix the unintended consequences of the Internal Revenue Code (“Code”), which have led incentivized corporations to invert. Continue reading

The Sixth Amendment and the Right to Choose Appointed Counsel

Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review

The Due Process Clauses of the United States Constitution, along with the Sixth Amendment, guarantee to all felony defendants the right to a fair trial.[1] However, the definition of what exactly constitutes a “fair trial” may be determined by the financial means of the defendant.[2] For the wealthy, a fair trial entails the right to choose counsel that the defendant feels will adequately represent their interests,[3] with the ability to change and substitute counsel over concerns such as lack of trust—a vital component of client-lawyer relationships in criminal cases.[4] A defendant’s ability to protect his or her interests is especially important in a felony cases, where a defendant’s right to liberty and freedom are at stake. On the other hand, while the justice system recognizes the severity of what is at stake for wealthy criminal defendants, poor defendants who cannot afford their own counsel are offered no such acknowledgement.[5] Instead, for indigent defendants, the definition of what constitutes a ‘fair trial’ is confined to mean that poor defendants only have the right to be appointed conflict-free counsel who will represent them at the minimal level required by the law.[6]

The Sixth Amendment unabashedly offers poor defendants, who make up the majority of criminal defendants, a brand of justice that is tipped against them by offering no way to assess their appointed counsel and de minimis means to  hold counsel accountable for the level of representation provided. Such wealth-based discrimination pervasively denies the constitutional guarantee of equal treatment under the law and must be reanalyzed to reflect the objectives of the Due Process Clauses. Continue reading

Necesitamos Nueve: The Adverse Effects on the Immigration Community

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

The appointment of Merrick Garland to the United States Supreme Court was obstructed over the last 310 days of President Obama’s presidency.[1] Despite the nomination, the Senate has refused to move forward with the proceedings on Judge Garland. This has left a crushing vacancy in the seat of the late Justice Antonin Scalia. While the Senate has put a hold on fulfilling its duties, the remaining eight Justices of the Supreme Court have continued its pursuit of “equal justice under law.”[2] Unfortunately, with only eight Justices, many important cases are being decided by a Supreme Court that is unable to provide a declarative ruling. One such case was decided on June 23, 2016. In a 4-4 deadlock, the Supreme Court was forced to issue the following one sentence opinion: “[t]he judgement is affirmed by an equally divided Court.”[3] Those nine words have significantly affected millions of people in the United States. That fact must be addressed.

Deferred Action: Now and the Promise of Tomorrow

Deferred Actions for Childhood Arrivals, also known as “DACA”, was a program first announced on June 15, 2012.[4] DACA utilizes prosecutorial discretion to defer removal actions against a category of individuals. Upon meeting several requirements including a background check, an individual may be granted work authorization and deferred action for two years, subject to renewal.[5] The Department of Homeland Security only has enough funds to deport less than 400,000 undocumented immigrants each year.[6] The DACA program was announced as part of the initiative to prioritize deporting individuals who pose a risk to public safety first.[7] Nearly half a million undocumented immigrants applied for DACA in 2013 alone.[8] With the evident success of the program, the administration looked for ways to expand the deferred action to immigrants excluded from DACA 2012. Continue reading

Off-campus Freedom of Speech and Tinker: Political Protest to Bullying

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review

Arguably, no case is more seminal to the free speech jurisprudence in schools than Tinker v. Des Moines Independent Community School District.[1] Indeed, Tinker is integral to the three cases involved in the current circuit split concerning the application of Tinker, and its progeny, to the ability of schools to regulate off-campus speech and the appropriate standard under which to analyze off-campus speech. On one side, the Eighth Circuit held that the proper test to analyze the ability of schools to regulate or discipline off-campus speech is whether it was “reasonably foreseeable” that the speech would reach the school and cause a “substantial disruption.”[2] On the other side, the Fourth Circuit held that the proper test was the “nexus” test that holds that certain degree of intertwinement between the school and the speech will justify regulation by the school.[3] However, in C.R. v. Eugene School District, the Ninth Circuit[4] declined to decide which test is the proper test, stating that the facts of the case at hand pass both tests permitting the court to continue with the Tinker analysis of “material disruption” or interference with the “rights of others.”[5]

Although the Ninth Circuit correctly decided the case, only the Fourth Circuit rightfully highlighted the dilemma of juxtaposing political dissent to vicious bullying. Regrettably, Tinker is the proper standard under which to analyze a student’s freedom of speech. However, out of respect for the conceptual sanctity of the right to speak freely, our courts need to sever the issue of bullying from the discussion of constitutional rights.

Tinker v. Des Moines Independent Community School District

John Tinker, Mary Beth Tinker, and Christopher Eckhardt planned to wear black armbands to school in protest of the Vietnam War.[6] Their respective schools learned of their protest and instituted a ban against armbands in school. Undeterred by the new policy, the three students wore their armbands and were suspended.[7] The students filed suit in District Court alleging violations of their First Amendment rights. The District Court held for the School District, and an equally divided Eighth Circuit reaffirmed the lower court’s ruling.[8] The United States Supreme Court granted certiorari and held for the students stating that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[9] The Court held that a student may be constitutionally protected to express themselves as long as the student does not “materially [or] substantially interfer[e]” with the “operation of the school and without colliding with the rights of others.”[10] Since Tinker, federal courts have grappled with other applications, including non-political speech and off-campus speech, as well as the limits of Tinker’s protections.

The Eighth Circuit’s “Reasonably Foreseeable” Test

Twin brothers, Steven and Sean Wilson, were suspended for 180 days for the “disruption” caused by a website they created.[11] The website, a blog entitled NorthPress, was created to “discuss, satirize, and ‘vent’ about events” at the school.[12] However, in December 2011, the Wilsons posted blog entries that included offensive and racist content, as well as sexually explicit commentary about a female classmate.[13] After the blog came to the attention of the entire school, the Wilsons were suspended for ten days including a referral to the School District.[14] A series of appeals and hearings took place, after which the District suspended the brothers from their school for 180 days with permission to attend another school “for the duration of their suspensions.”[15] The Wilsons brought suit in District Court alleging violations of their First Amendment rights and seeking an injunctive relief to “lift” their suspensions.[16]

According to the Wilsons, attending an alternate school during their suspensions would damage their future academic prospects.[17] In opposition, the school argued that the blog was being accessed from school computers and was causing “substantial disruption” with some educators calling a particular day the “most disrupted day of their teaching careers.”[18] The District Court found for the Wilsons, citing the irreparable harm to their collegiate careers.[19] The School District appealed.[20]

However, on appeal the Eighth Circuit found for the School District, vacated the order, and reversed the injunctive relief.[21] The Court held that Tinker was the relevant precedent upon which to base their decision because the blog was “targeted” at the school and caused a “material” disruption.[22] Furthermore, the Court held that Tinker applied to off-campus, online speech when it is “reasonably foreseeable” that the speech will “reach” the school community and “cause a substantial disruption.”[23] Given that Tinker applied, the Court held that the Wilsons were not likely to succeed on the merits because the blog was not likely to pass Tinker. Therefore, the speech was not protected under the First Amendment.[24]  Lastly, as the potential harm to the Wilsons’ collegiate career was “speculative”, granting a preliminary injunction was improper given that the Wilsons were highly unlikely to succeed on the merits.[25]

The Fourth Circuit’s “Nexus” Test

Similar to the Wilsons, Kara Kowalski was suspended from school for online speech.[26] The high school senior created a MySpace page to “make students actively aware of STD’s.” with the heading “S.A.S.H.” that she stated was an acronym for “Students Against Sluts Herpes.”[27] However, a fellow classmate stated the acronym stood for “Students Against Shay’s Herpes.”[28] The target of the MySpace page was a student named Shay N, as evidenced by the online interactions between students and Kowalski.[29]

Eventually, the page came to the attention of Shay and her father, who brought the MySpace page to the school’s attention, and filed a harassment complaint.[30] The school’s principal directed the complaint to the school board, which prompted an investigation that resulted in the school determining that the MySpace page violated the harassment policy because it was a “hate website.”[31] As a result, Kowalski was originally suspended for ten days with a ninety day suspension from school social events, but the ten days was reduced to five days while the ninety day “social suspension” remained intact.[32] In response to her punishment, Kowalski brought suit in District Court seeking injunctive relief and alleging, among other claims, that her First Amendment right to free speech was violated.[33] The District Court granted summary judgment for the defendants and Kowalski appealed.[34]

On appeal, the Fourth Circuit also applied Tinker and found that Kowalski’s MySpace page was not protected by the First Amendment because it “materially disrupted” the classroom.[35] However, unlike the Wilsons, Kowalski does not dispute that her webpage amounted to harassment; the crux of her argument centered on the fact that the speech took place off school premises, and therefore outside the school’s disciplinary jurisdiction.[36] The Court declined to entertain her off-premises argument, stating instead that “the nexus of Kowalski’s speech to Musselman High School’s pedagogical interests was sufficiently strong to justify the action taken by the school.”[37] Accordingly, the court affirmed the District Court’s holding stating that Kowalski’s speech was not entitled to First Amendment protection.[38]

The Ninth Circuit’s Failure to Take a Stance

Plaintiff-Appellant, C.R., was a seventh-grade boy at Monroe Middle School.[39] A group of boys, including C.R., were accused of sexually harassing two Monroe Middle School sixth-grade students, A.I. and J.R.[40] The group of boys followed A.I. and J.R. home along a path that neighbors the school.[41] Although the route runs adjacent to the school, the harassment technically took place off school property.[42] In a “series of encounters,” the boys harassed A.I. and J.R., including questioning them about pornography and inappropriately referencing oral sex.[43] Accordingly, the school “imposed a two-day, out-of-school suspension” based upon their finding that C.R. had violated the school’s sexual harassment policy.[44] C.R.’s parents sued the School District asserting a violation of C.R.’s First Amendment rights, stating that the speech took place off-campus, outside the school’s disciplinary jurisdiction.[45] The District Court held for the School District and C.R. appealed.[46]

The Ninth Circuit affirmed the lower court’s holding.[47] The court began with the standard of review for First Amendment protections for free speech in schools, as well as the proper standard for off-campus speech.[48] Citing to the Fourth and Eighth Circuit’s decisions in Kowalski and Lee’s Summit, the Court acknowledged the “nexus” and reasonably “foreseeable tests” as applicable standards for off-campus speech.[49] The court stated that “once the court has determined that…off-campus speech [is] susceptible to regulation by the school, we apply Tinker.”[50] Accordingly, the court applied both the “nexus” and “reasonably foreseeable” tests, and concluded that the facts of the instant case passed both tests, making C.R.’s speech subject to school regulation.[51] The school’s causal relationship to the path home satisfied the nexus test because it was the “school itself that brought the children together on the path.”[52] Furthermore, the nature of inter-school harassment made C.R.’s speech “reasonably foreseeable” to be discovered by the school because students either exhibit signs of harassment or report harassment.[53]

After the court established that the speech was subject to school regulation, a simple Tinker analysis followed. The court decided the case on the second prong of Tinker; a school can regulate speech if it “collides with the rights of other students to be secure and let alone.”[54] Sexual harassment is implicated as such a right and, therefore, the speech was not protected by the First Amendment.[55]

A Need for a New Threshold: the Bully Test

The Ninth Circuit stated that a Tinker analysis follows a finding that the off-campus speech is subject to school regulation but failed to decide which test better permits such a finding. Upon close inspection, the “nexus” test and the “reasonably foreseeable” test are similar enough that one set of facts likely could not pass one without equally passing the other. This conclusion is supported by the decision in C.R. as the Ninth Circuit declined to take a stance because both tests would be satisfied. Both tests permit the school to assume control of a situation within their grasps but not necessarily certainly within their jurisdiction. A student spends a significant percentage of their time in school, where any amount of bullying, whether online or off-campus, is likely to prompt the “nexus” test or the “reasonably foreseeable” test.

Yet, once a Tinker analysis is triggered upon a finding of a school’s authority to discipline, an uncomfortable comparison between the freedom to bully and the freedom to politically protest follows. The right to free speech, especially political speech, is one of the most powerful and symbolic rights bestowed by the Constitution. Maintaining Tinker as the proper standard for regulating speech in schools is easy; in combination with the “nexus” and “reasonably foreseeable” tests, it is unlikely that a Tinker analysis will ever find bullying constitutionally protected. Empowering schools to regulate bullying is a wonderful, and much needed, ability. However, using Tinker to accomplish this goal diminishes the instrumental role the young students in Tinker played in shaping the First Amendment protections for students, enabling students to be conscious, active citizens.


Tinker v. Des Moines Independent Community School District bestowed upon students the ability to, conditionally, exercise their constitutional right to free speech. The students in Tinker fought for their right to politically speak out against the Vietnam War. In the decades since Tinker, courts have struggled with defining Tinker’s applicability. As avenues for bullying have exponentially multiplied, courts have further struggled to determine whether bullying, as a form of speech, is protected by the First Amendment, especially if the bullying took place off-campus. Although circuits have formed multiple tests with which to determine whether a school may discipline a student for off-campus speech, most courts have not addressed the dilemma of comparing political speech to bullying. This dilemma highlights the need for a new test that limits bullying as a form of speech subject to a Tinker analysis.

[1] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969).

[2] S. J. W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012).

[3] Kowalski v. Berkeley Cty. Sch., 652 F.3d 565 (4th Cir. 2011).

[4] C.R. v. Eugene Sch. Dist. 4J, No. 13-35856, 2016 U.S. App. LEXIS 16202 (9th Cir. Sep. 1, 2016).

[5] Tinker, 393 U.S. at 503.

[6] Id. at 504.

[7] Id.

[8] Id. at 505.

[9] Id. at 507.

[10] Id. at 513.

[11] Lee’s Summit, 696 F.3d at 773.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. The brothers’ complaints included less challenging curriculum, a lack of ACT preparation and “honors courses,” and a less prestigious musical program that would hinder their musical scholarship options.

[18] Id. at 775.

[19] Id.

[20] Id.

[21] Id. at 777.

[22] Id. at 776.

[23] Id. at 777.

[24] Id. at 778

[25] Id. at 779.

[26] Kowalski, 652 at 567.

[27] Id.

[28] Id.

[29] Id. at 568. Derogatory pictures and comments flooded the page about Shay.

[30] Id.

[31] Id.

[32] Id. at 569.

[33] Id. at 570.

[34] Id.

[35] Id. at 573.

[36] Id.

[37] Id.

[38] Id. at 575.

[39] Eugene, 4J, No. 13-35856, 2016 U.S. App. LEXIS at *4.

[40] Id.

[41] Id.

[42] Id.

[43] Id. at *6.

[44] Id.

[45] Id. at *4.

[46] Id.

[47] Id.

[48] Id. at *11.

[49] Id. at *16.

[50] Id. at *15.

[51] Id. at *16.

[52] Id. at *17. The path is considered the “backfield” of the school, the school knowingly releases the various grades at the same time that permits the interaction, and the lack of alternate routes home justify stating that the school itself brought the children together on that path.

[53] Id. at 18.

[54] Id. at *20.

[55] Id. at *22.

A Real Immigration Debate

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

This past election cycle saturated Americans with immigration rhetoric from both political parties. Amongst this contentious political debate, the American judicial system is engulfed in legal debates about how to interpret federal immigration law. One section of the Immigration and Nationality Act (INA) allows the United States government to remove an alien convicted of a crime of domestic violence, stalking, or child abuse.[1] However, the Ninth and Fourth Circuits have encountered cases where an alien is convicted of a violent crime other than domestic violence, but many of the facts suggest a crime of domestic violence. It is not clear from the facts of these cases whether the prosecutors in the state proceedings utilized prosecutorial discretion to not charge a defendant under a criminal domestic violence statute or if the state did not possess a criminal domestic violence statute at all. These scenarios raise the question of whether the alien can be deported under this provision of the INA. The Ninth Circuit argued that a categorical approach, “looking only to the statutory definition [] of the prior offense”[2] or a modified categorical approach, looking “beyond the language of the statue to a narrow, specified set of documents that are part of the record of conviction,”[3] should be applied. Utilizing these two approaches, a court cannot look at the facts supporting the conviction when making the determination of whether the offense was an act of domestic violence. [4] In contrast, the Fourth Circuit applied a circumstantial approach. Under the circumstantial approach, “while the congruence of elements of the underlying offense and the offense described in the federal statute, must be assessed using the categorical approach, courts may consider other evidence to see if the necessary attendant circumstances exist.”[5] Ultimately, the Fourth Circuit’s approach is the best approach because it is more compatible with Supreme Court precedent even though the Fourth Circuit’s approach presents separation of powers and federalism issues. Continue reading

Purpose of the Church: 501(c)(3)s and Politics

Author: Adam Pitchel, Associate Member, University of Cincinnati Law Review

Non-profit organizations are not required to pay federal income taxes so that they can better fulfill their purpose. According to §501(c)(3) of the Internal Revenue Code, any organization that “operates exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes or to foster amateur sports competition” has an acceptable purpose.[1] However, organizations having an acceptable purpose and meeting the other requirements of §501 may only maintain their tax-exempt status if they refrain from influencing legislation and/or intervening in a political campaign.[2] This restriction was propose d by Senator Lyndon B. Johnson in 1954, to prevent churches and other organizations holding significant amounts of moral authority from interfering with elections.[3] H.R. 6195, also known as the Free Speech Fairness Act, proposes to create an exception to this prohibition.[4] The proposal would allow 501(c)(3) organizations to make political statements and endorse candidates if the statement or endorsement “is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose and results in the organization incurring not more than de minimis expenses.”[5] This act is impermissibly vague, creates an exception that threatens to swallow the rule, and is redundant with the existence of 501(c)(4) organizations. Continue reading

Sanctuary Cities and the Fight against the New Administration


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

In the days after the 2016 election, there was a wide divergence among Americans. A clear divide ensued between those who were satisfied with the elections and those who were in fear of what the next four years meant for their safety, their protection, and the future of their rights. In the following days, thousands of Americans expressed their concern over the promises made from the Trump/Pence campaign.[1] The Latino community voiced concerns over the promises made by President Trump to immediately deport millions of immigrants, build a wall, and his intention to dispose of President Obama’s executive orders on deferred action as soon as he takes the oath of office.[2] In response to this fear, several cities across the nation have declared or reaffirmed their status as “sanctuary cities” and as safe havens to undocumented immigrants in the coming months.[3] Continue reading


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

On December 11, 2001, China formally joined the World Trade Organization (WTO).[1] The WTO develops policies aimed at promoting global integration of member-states’ economies.[2] When China was inducted into the WTO, §15 of China’s Protocol of Accession (POA §15) allowed WTO members to designate China a non-market economy (NME). NME status allows WTO members to assess the true cost of production in China by using any fair method, rather than just the nominal price of production in the Chinese market.[3] These methods are used to determine countervailing duties (CVD) and anti-dumping laws (AD) for imports from China. With the POA §15’s expiration on December 11, 2016, the debate is whether its expiration automatically grants China market-economy status (MES), or whether national law makes such a determination. POA §15’s expiration does not grant China automatic MES status, and the United States is unlikely to grant China MES at the end of

I. Legal Framework Surrounding China’s MES.

China argues that the POA it signed in 2001 will grant it immediate MES after its expiration. Mei Xinyu, a researcher with China’s Ministry of Commerce, said, “[POA §15] is very clear and it’s unconditional” to this effect.[4]  However, there is no language in the POA that suggests that MES is automatic upon the expiration of the clause. Rather, each WTO member nation will determine individually whether or not China has liberalized its economy enough to earn MES. Continue reading