In an employment intentional discrimination case, “[j]ust how ‘similarly situated’ must a plaintiff and her comparator(s) be?” The United States Court of Appeals for the Eleventh Circuit clarified the proper standard for comparator evidence in Lewis v. City of Union City. Specifically, the court endorsed a test asking whether comparators are “similarly situated in all material respects,” thereby abandoning the previously accepted “nearly identical” and “same or similar” tests.
In Williamson v. Brevard County, the Eleventh Circuit held that the commissioners of Brevard County unconstitutionally exercised their unfettered discretion to select opening invocation speakers based on religion. In addition, the court clarified requirements for cities that wish to open city council meetings or legislative sessions with sectarian prayer.
For many years, the Cumberland Law Review has published 11th Circuit Surveys and Alabama Supreme Court Surveys in its Spring publication. The surveys highlight recent and significant cases decided by the 11th Circuit Court of Appeals and the Alabama Supreme Court. The Law Review intends for readers to find the publication useful in practice.
In an effort to provide readers with content that is even more relevant and timely, the Volume 50 Editorial Board has refashioned the publication process for surveys. Surveys will still be written by 2L Junior Editors on Law Review. However, beginning this year, the Law Review will generate bimonthly publications that highlight recent cases. These surveys will be available on the Cumberland Law Review Online site, http://www.cumberlandlawreview.com. We hope our readers find this new venue for surveys more timely, accessible, and relevant to daily practice.
-Volume 50 Editorial Board
Robert J. Sewell
During its recent term, the Supreme Court decided Tennessee Wine & Spirit Retailers Ass’n v. Thomas, a case pitting the Commerce Clause, or rather the Dormant Commerce Clause Doctrine (“DCCD”), against Section 2 of the Twenty-first Amendment. In a 7-2 decision, the Court held that the DCCD’s prohibition of state-level protectionist legislation trumped the Twenty-first Amendment’s grant of seemingly plenary authority over alcohol sales. The Court’s opinion indicates, much to the chagrin of law students and bar examinees, that the DCCD remains an enduring part of the United States Constitution’s structure.
Supervised injection facilities (SIFs) allow addicts to use illicit drugs in a “safe place” while being monitored closely for overdose symptoms by medical professionals. While SIFs operate in multiple countries throughout the world, currently no supervised injection facility is legally open in the United States. However, injection facilities have found traction in cities such as San Francisco, Seattle, Philadelphia, and New York. Advocates of SIFs believe that operating this type of facility will prevent overdose related deaths by getting drug users “immediate help in the event of an overdose or adverse reaction.” Advocates also claim that supervised facilities will help reduce the spread of blood borne infections, such as HIV. On the other hand, those that oppose the United States allowing the operation of these facilities argue that opening this type of facility would violate the Controlled Substances Act (CSA), and would change the existing stigma regarding drug use to become more accepting and thus would eventually lead to an increased use of drugs in the country.
On January 22, 2019, the United States Supreme Court granted certiorari to hear its first Second Amendment case in nearly a decade. Prior to this decision to grant cert, the Supreme Court last heard cases relating to an individual’s right to own a firearm in 2010 and 2008, choosing to leave many firearm issues to the states. In the 2008 decision, District of Columbia v. Heller, the Court held the District of Columbia’s prohibition on the possession of handguns in the home violated the Second Amendment because the Amendment guarantees the right to possess and carry firearms for the purpose of self-defense. In the 2010 decision, McDonald v. City of Chicago, the Court incorporated the Second Amendment right to bear arms for the purpose of self-defense into the Due Process Clause of the Fourteenth Amendment, making the Second Amendment applicable to the states.
The case set for the Court’s review, New York State Rifle & Pistol Association v. City of New York, concerns Title 38, Chapter Five, Section 23 of the Rules of the City of New York. This New York statutory provision prohibits handgun owners from removing their weapon from the address specified on their license except for a purpose allowed under the statute, such as transporting the gun to an approved shooting range.
On Friday, February 1, 2019, the Cumberland Law Review will present “Automation and Appellate Advocacy.” The Symposium is a free continuing legal education event. The Symposium will consist of discussions between distinguished lawyers in the appellate advocacy practice area about how technology is changing appellate advocacy and the role of the attorney in the appellate process.
The keynote address is titled “‘Killer Apps’ and Appellate Advocacy: Past, Present, and Future” and will be presented by Professor Janet Ainsworth of the Seattle University School of Law. Professor Ainsworth will discuss what it means to be a “killer app” in the legal practice. Some “killer apps” today’s attorneys may be familiar with are technology assisted document review and contracts analytics software. While “killer apps” are not new to law practice, new apps are emerging that could greatly impact law practice in the future, such as argument bots and chat bots. Professor Ainsworth will discuss what these emerging apps mean for the legal profession.
The first panel will be presented with questions about automation and appellate advocacy, most of which will touch on matters of discretion. The panel will consist of Judge John Carroll, Professor Janet Ainsworth, Attorney Travis Ramey, and Attorney Starr Turner Drum. Among other issues, the panelists will provide their input on how artificial intelligence is expected to impact the appellate process. As Travis Ramey pointed out, one significant way the artificial intelligence is impacting appellate advocacy is through the appellate brief drafting process.  Some argue artificial intelligence could potentially replace the attorney’s role in researching and writing the appellate brief. Others suggest core analysis skills learned in law school and in practice are unlikely to be replaced by artificial intelligence.
The second panel will also discuss contemporary issues in appellate advocacy, focusing on artificial intelligence and their place in modern appellate practice and other issues related to emerging technology and appellate advocacy. The second panel will consist of Chief Judge Stephen Dillard, Attorney Deborah Alley Smith, and Solicitor General Andrew Brasher. As Chief Judge Dillard wrote, “a lawyer’s likelihood of success on appeal before [the Georgia Court of Appeals] is largely dependent upon the substance of the appellate brief(s).” Symposium attendees can look forward to hearing these exceptional panelists’ thoughts regarding the effect artificial intelligence may have on the appellate process.
Cumberland Law Review looks forward to the discussions that will take place at the Symposium. We hope you all will join us for what is sure to be an exciting and informative event.
 Travis Ramey, American Bar Association, Appellate A.I. (Nov. 2017), available at https://www.americanbar.org/content/dam/aba/publications/appellate_issues/2017fall_ai.authcheckdam.pdf#page=14.
 Stephen Louis A Dillard, Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals, 68 Mercer L. Rev. 1, 10 (2016).
Speakers & Schedule
7:30 AM Registration and light refreshments
8:15 AM Opening Remarks
Henry C. Strickland, III, Dean, Cumberland School of Law
Brenton Thompson, Editor in Chief, Cumberland Law Review
8:30 AM Keynote Address: “‘Killer Apps’ and Appellate Advocacy: Past, Present, and Future”
Professor Janet Ainsworth, Professor, Seattle University School of Law
9:30 AM Panel Discussion #1: Automation and Appellate Advocacy
Judge John Carroll, Professor, Cumberland School of Law
Professor Janet Ainsworth, Professor, Seattle University School of Law
Travis Ramey, Attorney, Burr & Forman
Starr Turner Drum, Attorney, Maynard Cooper & Gale
10:30 AM BREAK
10:45 AM Panel Discussion #2: Contemporary Issues in Appellate Advocacy
Chief Judge Stephen Dillard, Chief Judge, Georgia Court of Civil Appeals
Deborah Alley Smith, Managing Partner, Christian & Small
Andrew Brasher, Solicitor General of Alabama
11:45 AM Closing Remarks and Dismissal
Sydney Willmann, Managing Editor, Cumberland Law Review
Please continue to check our website for more details to come.
Photo Credit: http://time.com/4870916/congress-federal-minimum-wage/
In 2015, the Birmingham City Council passed a city ordinance increasing minimum wage throughout the city to $8.50 beginning in July 2016 and raising to $10.10 in 2017. This ordinance came in response to the City Council’s repeated attempts and eventual resolution to get the Alabama state legislature to increase the minimum wage to $10 per hour across the state of Alabama. The legislature refused the city’s request, leading the Birmingham City Council to increase the minimum wage throughout the city on their own with the purpose of “tak[ing] legislative steps to help lift working families out of poverty, decrease income inequality, and boost [Birmingham’s] economy.” Birmingham, the largest city in the State of Alabama, has thirty percent (30%) of its residents living below the poverty line while also being home to the largest African American population (72%) in Alabama.
On September 13, 2018, the Eleventh Circuit concluded that the district court did not err in holding that Valencia College did not violate Jeffery Koeppel’s statutory or constitutional rights when it suspended him for his conduct towards another student. During the summer of 2014 Koeppel and a female student, whom the court referred to as Jane Roe, were assigned to be biology lab partners at Valencia College, a public university in Florida. As the semester went on, Koeppel began to contact Roe outside of class and eventually told her he was attracted to her. Roe told Koeppel she was not interested and she was already in a relationship. Roe and Koeppel finished the summer semester with no further issues.