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In Deal v. Tugalo Gas Co., the U.S. Court of Appeals for the Eleventh Circuit addressed a laundry list of appeals stemming from a district court’s rejection of a plaintiff’s substantive claims as well as its decision to invoke the “Burford abstention” doctrine for the plaintiff’s equitable claims. In an unusual decision, by declining to adjudicate the plaintiff’s three equitable claims—“for judicial dissolution, an accounting, and appointment of an auditor”—the district court extended the “long-lost (or nearly lost)” Burford doctrine to cover such claims. However, on appeal, while affirming the district court’s disposal of substantive claims, the Eleventh Circuit reversed and remanded the three equitable claims because the district court should not have abstained from deciding the claims under the Burford doctrine.
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People are constantly inundated by marketing efforts these days. Unless you are totally disconnected, you are exposed to it everywhere you look and with almost anything you listen to. Oh sure, marketing is on TV and in the newspapers—for those who still actually read them—but also on your screens while you shop, research, read the news, learn how to fix that leaky faucet, catch up on sports, or browse social media. If you connect with anything, marketers will find a way to connect with you, which is frustrating to many. However, an increasing number of lawyers have discovered the importance of marketing, and those who have not run the risk of being left behind.
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In Granda v. United States, the United States Court of Appeals for the Eleventh Circuit reviewed the denial of a plaintiff’s § 2255 petition after he claimed the jury may have relied on an invalid predicate resulting in the conviction of a “non-existent crime.” Because the plaintiff failed to overcome procedural hurdles and could not prevail on the merits, his assertions regarding the predicate were futile. Granda reaffirms the notion that, in a criminal conviction, regardless of the likelihood of success an argument may have, the defendant must raise an available challenge on direct appeal or be barred from raising that claim in a habeas proceeding.
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In Armstrong v. United States, the U.S. Court of Appeals for the Eleventh Circuit addressed whether a sentence reduction pursuant to 18 U.S.C. § 3582(c) constitutes a new, intervening judgment and thus acts as a de novo resentencing. If the court held that § 3582(c) did in fact constitute a de novo resentencing, then the appellant potentially would not have been barred from bringing his second or successive 28 U.S.C. § 2255 habeas petition. Although surrounding sister circuits had considered this same question, Armstrong was the Eleventh Circuit’s first opportunity. Therefore, the Armstrong decision provides a unique glimpse into the court’s analysis regarding a case of first impression within its circuit.
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In Dickinson v. Cochran, the U.S. Court of Appeals for the Eleventh Circuit reviewed an inmate’s § 1983 claims against jail officials after he was stabbed by another inmate. Dickinson should ring alarm bells for the Alabama Department of Corrections and prison officials throughout the state, because the court brushed aside qualified immunity and laid out a roadmap that future inmates in similar situations can follow. Dickinson emphasizes that the State of Alabama and its prison officials cannot always rely on qualified immunity for protection. How the State will and should handle future inmate assaults while awaiting completion of new prisons remains to be seen.
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Cumberland Law Review members closed out February and started March off with more success in their extracurriculars!
Copy Editor Taylor Johnson and Junior Editor Kaylee Rose both competed in the ABA Appellate Advocacy Competition at the end of February. And Junior Editor Mitchell Brisbon competed in the Duberstein National Bankruptcy Competition and at the CKP Cup where Mitchell was named top advocate!
Copy Editor Madison Cumby also competed in the ABA Representation in Mediation Regional Competition along with partner Hannah Trucks this past weekend.
Congratulations to our members on their continued success!!
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In Thai Meditation Ass’n of Alabama, Inc., v. City of Mobile, the U.S. Court of Appeals for the Eleventh Circuit addressed whether the district court erred in its dismissal of claims brought by the Thai Meditation Association of Alabama (“the Association”) against the city of Mobile, Alabama (“the City”) for the denial of a permit. The Association applied to the City for permits to build a “Buddhist meditation and retreat center,” the prospect of which was not received well by the public. Due to the Association’s religious affiliation and the subsequent public outrage, the permit denial led the Association to believe that the City violated the U.S. Constitution, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the Alabama Constitution, and state common law. The Eleventh Circuit declined to decide whether the City committed these violations but held that the district court improperly dismissed the Association’s federal constitutional, RLUIPA, and state constitutional claims. Going forward, the Eleventh Circuit’s opinion in this case will likely be considered by similarly situated plaintiffs in determining whether to bring claims under federal or state law—especially plaintiffs in Alabama who are members of a religious minority.
The Cumberland Law Review is excited to announce our upcoming annual Symposium!
The event will be held virtually this year on Friday, February 26! This year’s theme is “Alternative Dispute Resolution and Advocacy: Insights and Strategies for the Modern Advocate.” We have an impressive panel of speakers who will be sharing must-know ADR insights.
Best of all, attorneys who attend will receive 3 FREE CLE credits! Register by emailing email@example.com.
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In Berisha v. Lawson, the U.S. Court of Appeals for the Eleventh Circuit addressed a defamation suit brought by Shkelzen Berisha (“Berisha”), the son of Albania’s former Prime Minister, against a United States author, Guy Lawson (“Lawson”). In analyzing the defamation claim, the court considered whether Berisha was a limited public figure in this circumstance, and, if so, whether he had to prove that Lawson acted with actual malice. The court also expanded on the employee-equivalent theory as it relates to an independent contractor’s ability to claim attorney-client privilege for communications when the contractor is not a traditional employee. The importance of the Eleventh Circuit’s ruling in Berisha v. Lawson is two-fold: (1) it upholds the importance of the First Amendment within the judicial system, even when a public figure is an involved party; and (2) it brings further definition to the Supreme Court’s holding that the attorney-client privilege can be expanded to include non-traditional employees.
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Meredith Smith Taylor*
In Collier v. Harland Clarke Corp., the U.S. Court of Appeals for the Eleventh Circuit addressed a claim brought by a sixty-one-year-old terminated employee against his employer alleging violations of the Americans with Disabilities Act (the “ADA”), the Age Discrimination in Employment Act (the “ADEA”), and Alabama privacy law. Although the Eleventh Circuit expressed sympathy for Collier in his termination, the court held the district court did not err in granting summary judgment in favor of the employer because there were no genuine issues of material fact for any of Collier’s claims. Collier is significant in the employment discrimination context because it reaffirms the notion that in order to survive summary judgment, a plaintiff must provide enough evidence to establish a prima facie case of discrimination and an employer’s discriminatory intent beyond mere speculation.
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In Williams v. Aguirre, the U.S. Court of Appeals for the Eleventh Circuit addressed whether qualified and state immunity applied to a malicious prosecution claim brought by an arrestee. An individual alleged he was maliciously prosecuted for attempted murder of a police officer after the police officer shot him. Aguirre answers questions on the availability of both qualified and state-agent immunity to police officers. In deciding this case, the Eleventh Circuit considered constitutional and state law to determine that the officers were not entitled to either form of immunity and that the district court did not err in denying the officers’ motion for summary judgment.
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In McKenny v. United States, the U.S. Court of Appeals for the Eleventh Circuit addressed a question of first impression: whether the taxpayers’ settlement with their accounting firm, whose negligence allegedly led to a $2 million overpayment in federal taxes to the government, constitutes taxable income. The court also discussed whether the corresponding litigation fees and the difference between the settlements with the law firm and the IRS are deductible. Taxpayers are likely to see McKenny as the baseline for determining the business or personal nature of litigation expenses as well as the deductibility of a settlement with the IRS.
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In In re Guillen, the United States Court of Appeals for the Eleventh Circuit addressed whether a party is required to demonstrate that they experienced some change in circumstances in order to modify a confirmed Chapter 13 bankruptcy plan under 11 U.S.C. § 1329. The ruling answered a question of first impression for the Eleventh Circuit that has divided some of its sister circuits. The First, Fifth, and Seventh Circuit Courts of Appeals do not require a threshold showing of any change in circumstances in order to modify a confirmed bankruptcy plan, while the Fourth Circuit does require such a showing. The Eleventh Circuit ultimately determined that a change in circumstances is not required to modify a plan, and thereby concurred with the First, Fifth, and Seventh Circuits.
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In Stryker v. City of Homewood, the United States Court of Appeals for the Eleventh Circuit addressed a conflict involving alleged excessive use of force by the police. In recent months, use of force by the police has been a hotly debated topic, creating fervor that has grown, in some cases, to a call to abolish the police. In Stryker, the Eleventh Circuit reversed and remanded the district court’s grant of summary judgment in favor of the police. While this decision does not create any altering legal precedent, it is worth considering in light of the tumultuous debate which is currently surrounding the police.
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In Mickell v. Bell, the United States Court of Appeals for the Eleventh Circuit revived former NFL player Darren Mickell’s claim for denial of disability benefits. Reversing the District Court’s ruling, the Eleventh Circuit held that the NFL Retirement Board abused its discretion in denying disability benefits by failing to consider two key components: medical records and reports from his treating physicians and the cumulative effect of his impairments. Mickell v. Bell serves as a guidepost for disability benefit plan administrators in the Eleventh Circuit.
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In Champions Retreat Golf Founders, LLC v. Commissioner, the United States Court of Appeals for the Eleventh Circuit addressed whether a taxpayer qualified for a charitable deduction for a donation of a conservation easement that encompassed a private golf course as well as undeveloped land. The Eleventh Circuit vacated the Tax Court’s decision to uphold the Commissioner of Internal Revenue’s denial of the charitable deduction, “[b]ecause the [Internal Revenue] Code does not disqualify an easement just because it includes a golf course . . . . Owners of golf courses and other similarly developed commercial properties likely see Champions as a new tax-break opportunity. The Eleventh Circuit’s finding that Champions’ easement property satisfied the meaning of a relatively natural habitat, despite the use of chemicals, artificial drainage, and introduction of nonnative species, provides a baseline of the extent and type of property modifications that can exist within the limits of the Code.
While clerking this Summer at Wallace, Jordan, Ratliff, & Brandt, LLC, Executive Editor Lauren Brasher, in conjunction with Attorneys Phillip Corley and April Danielson, wrote an article overviewing Alabama’s drainage laws and their impact on municipalities. In general, courts have been hesitant to impose liability on municipalities for drainage they have not expressly accepted to maintain or constructed the drainage system themselves. The article discusses the Public Purpose Doctrine, when drainage is considered within the the control of the municipality, and what does and does not constitute acceptance for maintenance.
Click the link below to read the full article in the Fall 2020 Issue of The Alabama Municipal Journal! The article begins on page thirty-one.
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In Georgia Electronic Life Safety & System Ass’n v. City of Sandy Springs, the United States Court of Appeals for the Eleventh Circuit addressed the constitutionality of a city ordinance that imposes a fine on alarm companies for false alarms. Affirming the lower court’s ruling, the Eleventh Circuit deemed the city ordinance constitutional because “[i]mposing a fine on . . . alarm companies is rationally related to the City’s strong interests in reducing the number of false alarms that heavily burden its police and fire departments and waste public resources.” In deeming the Ordinance constitutional, the Eleventh Circuit demonstrated that it will not interfere in a municipality’s regulation of economic behavior when that municipality can establish that the regulation is rationally related to the governmental interest.
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The Equal Justice Initiative has invited Cumberland School of Law students to visit its Legacy Museum and National Memorial for Peace and Justice for free as part of its Law School Racial Justice Program. This event is open to all 2L and 3Ls, with 1Ls having attended during their orientation. The Cumberland Law Review is hosting a visit this Saturday, October 10th from nine a.m. to one p.m. Students have the opportunity to visit for free on October 17th and 24th as well. Students who attend will receive free copies of Just Mercy and The Sun Does Shine.
To obtain free admission, students must wear their red volunteer Samford shirts and bring their student IDs. Students must also fill out this form prior to arriving to confirm their attendance and masks must be worn. Please tag any photos taken with #changemakers2b #lawstudentwellness and #ABAmentalhealth
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In Adams ex rel. Kasper v. School Board of St. Johns County, the United States Court of Appeals for the Eleventh Circuit considered a challenge to a Florida high school’s policy prohibiting transgender students from using the bathroom of the gender with which they identify. The plaintiff, a transgender male, challenged the policy under the Fourteenth Amendment’s Equal Protection clause and Title IX of the Education Amendments Act of 1972. The court affirmed the district court’s judgment on both grounds, with one judge dissenting, holding that the School Board’s policy violated both the Fourteenth Amendment’s Equal Protection Clause and Title IX’s prohibition of sex discrimination in education. Although not specifically decided, the case tees up a potential challenge to sex-separated bathrooms.
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In Greater Birmingham Ministries v. Secretary of State for the State of Alabama, the United States Court of Appeals for the Eleventh Circuit addressed the constitutionality of an Alabama law that governs “‘one of the most fundamental rights of our citizens: the right to vote.’” The Eleventh Circuit affirmed the lower court’s ruling that Alabama’s 2011 Photo Voter Identification Law is constitutional and not racially discriminatory. Circuit Judge Elizabeth L. Branch, writing for the majority, found that “[t]he burden of providing a photo ID pursuant to Ala. Code § 17-9-30 in order to vote is a minimal burden on Alabama’s voters—especially when Alabama accepts so many different forms of photo ID and makes acquiring one simple and free for voters who lack a valid ID but wish to obtain one.”
Terra Silva *
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In Mama Jo’s Inc. v. Sparta Insurance Co., the United States Court of Appeals for the Eleventh Circuit held that an insurer properly denied coverage for a restaurant’s cleaning and business interruption claims because neither claim satisfied the policy’s “direct physical loss” requirement. The Mama Jo’s decision may be used by insurance companies arguing that denial of claims was proper based on the lack of any “direct physical loss,” as required by many policies. Though pandemic-related case law is still developing, Mama Jo’s may have major impacts on the outcome of such litigation.
The Cumberland Law Review is pleased to announce its Volume 51 Executive Board and its newest Junior Editors for the 2020-2021 year. Click here to learn more about our members!
Laura Beltz and Mary Zoeller
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In just forty-five words, the First Amendment to the United States Constitution is a “blueprint for personal freedom and the hallmark of an open society.” Critically, the First Amendment protects citizens from governmental interference with these foundational rights and prevents state actors—such as public colleges and universities—from hindering the exercise of these rights. In contrast, the First Amendment does not generally apply to students at private colleges.
READ FULL ARTICLE HERE
Taylor A. Johnson
In Susan Monaghan v. Worldpay US, Inc., the Eleventh Circuit reversed a district court’s grant of summary judgment in a Title VII retaliation complaint. This decision clarifies the requirements needed for successful Title VII retaliation claims.
READ FULL ARTICLE HERE
The Cumberland Law Review is pleased to announce our Volume 52 Executive Board who will serve the Law Review for the 2021-2022 school year!
Editor-in-Chief: Meredith Taylor
Executive Editor: Robert Adams
Managing Editor: Kaylee Rose
Acquisitions Editor: Stephanie Lynge
Student Materials Editor: Cullen Armstrong
Online Managing Editor: Chloe Champion
Online Research Editor: Niki Ozburn
Copy Editors: Kate Belyayeva and Meredith Buckner
Research Editors: Mitchell Brisbon and Hannah Cassady
Writing and Bluebook Editors: Amanda Nelson and Terra Silva
At the close of March, Junior Editor Dale Turley competed along with partner Forrest Hyde in the Seigenthaler-Sutherland National Moot Court Competition. This team reached the quarterfinals and was awarded Second Best Brief. Emily Hopper, a previous Acquisitions Editor for the Cumberland Law Review, coached this team.
Congratulations to Copy Editor Madison Cumby for making Cumberland’s 2020-2021 National Mediation Team!
Madison was the runner-up for the school’s Mediation Competition overall.