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HOW I STOPPED WORRYING AND LEARNED TO LOVE THE DORMANT COMMERCE CLAUSE

Robert J. Sewell

Photo Credit: https://verdict.justia.com/2015/05/20/is-the-dormant-commerce-clause-a-judicial-fraud

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.

READ THE FULL ARTICLE HERE

Skyline photo of Philadelphia.

ARE SIFS A THING OF THE FUTURE IN PHILADELPHIA?

Maggie Coan*

Phone Credit: https://philly.curbed.com/maps/philadelphia-tallest-buildings

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.

 

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Supreme Court Will Hear Second Amendment Case for the First Time in a Decade

Sarah Baldwin*

Photo Credit: https://cornellsun.com/2018/04/22/benitez-justifying-the-second-amendment/

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.

READ THE FULL ARTICLE HERE

 

 

2019 Symposium: Automation and Appellate Advocacy

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. [1]   Some argue artificial intelligence could potentially replace the attorney’s role in researching and writing the appellate brief.[2]  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).”[3]  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.

[1] 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.

[2] Id.

[3] 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).

2019 Symposium: Automation and Appellate Advocacy

2019 symposium flyer

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.

Picture of United States currency.

ELEVENTH CIRCUIT KEEPS BIRMINGHAM RESIDENTS MINIMUM WAGE SUIT ALIVE

Corbin Potter*

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.

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Eleventh Circuit Court of Appeals seal.

Doe v. Valencia College

Sarah Baldwin*

Photo Credit: https://wlflegalpulse.com/2015/10/01/eleventh-circuit-has-opportunity-in-u-s-v-clay-to-reshape-prosecutors-courts-approach-on-criminal-intent/

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.

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Chalk board writing of "abortion."

ALABAMA BAN ON DILATION AND EVACUATION ABORTIONS DECLARED UNCONSTITUTIONAL

Mollie Beth Amick*

Photo Credit: http://www.huffingtonpost.ca/sandeep-prasad/canadas-abortion-myth_b_8198478.html

In West Alabama Women’s Center v. Williamson, the Eleventh Circuit struck down a recent Alabama statute that banned dilation and evacuation abortions, holding that the law represented an unconstitutional restriction on a woman’s right to an abortion.

The plaintiff clinics filed suit on behalf of their present and future patients, claiming the Act was unconstitutional on its face. The Unborn Child Protection from Dismemberment Abortion Act, passed in 2016, made it unlawful for a medical practitioner to “purposely perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless necessary to prevent serious health risk to the unborn child’s mother.” Put more simply, the Act would require medical practitioners to end the life of a fetus before dismembering that fetus. Violation of this prohibition would be “punishable by up to two years imprisonment and fines of $10,000.”

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A photo of a gavel.

FALL 2018 FEDERALIST SOCIETY PANEL DISCUSSION: STATE JUDGES, FEDERAL COURTS, AND JUDICIAL SUPREMACY

Daniel Moss*

Photo Credits: http://www.libertylawsite.org/2016/12/15/the-judicial-supremacy-of-dead-justices/#comment-1506547

On August 28, 2018, the Cumberland School of Law chapter of the Federalist Society hosted a panel discussion entitled “State Judges, Federal Courts, and Judicial Supremacy: Constitutionality of Roy Moore’s Removals.”  The Federalist Society held the discussion in the John L. Carroll Moot Courtroom at Cumberland School of Law.  Both law students and faculty attended the discussion and had the opportunity to ask questions of the panelists.

READ THE FULL ARTICLE HERE

Insurance policy.

Oral Argument Preview: Ghee v. USAble Mutual Insurance Co.

Alex Sidwell

Photo Credit: http://www.proudpak.pk/insurance-in-pakistan/

Billy Fleming went to the emergency room on June 11, 2013, complaining of severe abdominal pain.  Following nonsurgical treatment, his physicians scheduled a colectomy, the removal of all or part of the colon.  Blue Advantage, the company in charge of Fleming’s employee health-insurance coverage, determined that nonsurgical treatment was appropriate, denied coverage of the surgery, and told Fleming to go to the emergency room if his pain worsened.  Fleming returned to the emergency room on July 15, 2013, where he appeared in distress.  Fleming died on July 16, 2013, and an autopsy showed his cause of death was “septic shock” resulting from a ruptured intestine.

Douglas Ghee, on behalf of Fleming’s estate, sued Blue Advantage for the wrongful death of Fleming caused by medical malpractice. Blue Advantage moved to dismiss the claim on the ground that the Employee Retirement Income Security Act (“ERISA”) preempted the wrongful death claim. ERISA is a federal law that regulates the operation of a health insurance benefit plan if an employer provides one for its employees. The trial court agreed with Blue Advantage and dismissed the wrongful death claim, ruling that the claim was preempted by ERISA. Ghee appealed to the Alabama Supreme Court on October 26, 2016.

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