Dunn v. Madison

By Emma Cummings

Thirty-two years ago, Vernon Madison was charged with the murder of a Mobile, Alabama police officer, Julius Schulte.  He was convicted of capital murder by an Alabama jury and sentenced to death.  Madison was scheduled to be executed on May 12, 2016, but he petitioned the state court to suspend his death sentence on the grounds that he was incompetent to be executed after suffering complications from several strokes.  At the trial court’s hearing, the court’s appointed psychologist reported that “although Madison may have ‘suffered a significant decline post-stroke, . . . [he] understands the exact posture of his case at this point,’ and appears to have a ‘rational understanding of . . . the results or effects’ of his death sentence.”  Additionally, Madison’s own psychologist reported that “Madison’s strokes have rendered him unable to remember ‘numerous events that have occurred over the past thirty years or more,’” but that he ultimately understood what he was tried for, that he was in prison because of murder,  that Alabama was seeking retribution, and that his sentence was the death penalty.  However, Madison’s psychologist stated that “Madison does not ‘understan[d] the act that . . . he is being punished for’ because he cannot recall ‘the sequence of events from the offense to his arrest to the trial or any of those details.’”

Click here to read the full article.

Samford University to Host Alabama Appellate Courts’ Oral Arguments November 1, 2017

On November 1, 2017, Samford University will host the Alabama Court of Civil Appeals and the Alabama Court of Criminal Appeals as they hear oral arguments in Keith v. LeFleur and Hicks v. State of Alabama, respectively. The event will be held at the Wright Center, and the arguments are set to begin at 9:00 am.

Cumberland Law Review’s Christian Feldman and Alex Thrasher have written case summaries for both cases. Click the links above to download the articles!

The Eleventh Circuit Establishes New Standard for Judicial Estoppel in Bankruptcy Cases

Brenton Thompson*


On September 18, 2017, the Eleventh Circuit Court of Appeals, sitting en banc, held that before precluding a debtor’s claim on judicial estoppel grounds, district court judges are required to consider all facts and circumstances to determine whether omitting a pending civil claim from a bankruptcy filing evinces a debtor’s intent to make a mockery of the judicial system.[1]  This standard—intent to make a mockery of the judicial system—serves as the second prong in a two-part analytical framework employed by the Eleventh Circuit to evaluate the appropriateness of judicial estoppel.[2]  The full court remanded the case to the three-judge panel[3] to decide the case under the new standard.[4]


* Candidate for Juris Doctor, Cumberland School of Law, Class of 2019. Junior Editor, Cumberland Law Review. Bachelor of Science, Auburn University, Class of 2016.

[1] Slater v. U.S. Steel Corp., No. 12-15548, 2017 WL 4110047, at *1 (11th Cir. Sept. 18, 2017) (Slater II).

[2] Id. at *5.

[3] The three judge panel consists of Eleventh Circuit Judges Gerald Bard Tjoflat and William H. Pryor, and Southern District of Florida Judge Robert N. Scola. Slater v. U.S. Steel Corp., 820 F.3d 1193, 1195 (11th Cir. 2016) (Slater I).

[4] Slater II, 2017 WL 4110047, at *12.

[5] See Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1287-88 (11th Cir. 2002).

[6] Slater II, 2017 WL 4110047, at *8.

2017 Symposium Review: A Grand View of the Field

    By: Jessica Wolinsky

On October 13, 2017, Cumberland Law Review and the American Journal of Trial Advocacy hosted the 2017 Symposium titled “A Ball Park Overview: The Field of Sports Law” at the Regions Field, Schaeffer Eye Center Lounge in Birmingham, Alabama.  This marks the first year both journals have had the privilege of collaborating to host symposium, and the event was a grand slam.  A delicious welcome breakfast complemented an excellent view of Regions Field for attorneys, law students, and professionals involved in Alabama’s sport’s law industry.

The event began with a welcome from Sean Herald, Managing Editor of Cumberland Law Review, and opening remarks by Cumberland Assistant Dean, Allen Howell.  Dean Howell described sports as a reflection of our culture and society, drawing together people from all walks of life and ideological backgrounds.  Furthermore, he found Regions Field to be the perfect venue for Symposium, representing the impact sports can have on a community.

The discussion portion of the event began with a presentation titled “Eligibility Issues of Blue Chip and International Student-Athletes” by Don Jackson, principal of The Sports Group and an adjunct professor at Cumberland School of Law.  His experience counseling and representing professional athletes, scouts, and coaches, as well as appearances before various NCAA committees, allowed him to incorporate personal anecdotes that brought to life many of the issues facing the world of sports.  Upon the conclusion of his presentation, a question was raised regarding the potential for a public university to sue a player’s family member under the new definition of “agent.”  To his knowledge, a family member had never been sued by a university, but it is now a possibility under the new definition.

Patrick Strong, counsel at Balch & Bingham, LLP, then provided an extensive overview of sports law.  His representation of some of the most respected collegiate and professional coaches in the country gave him an excellent perspective in answering the question “what is sports law?” In a detailed presentation, he described the differences between the traditional and non-traditional roles of sports agents and the role of the courts in resolving sports conflicts.

Following a short break, the event reconvened with a panel on NCAA compliance. Clayton Bromberg, Jr. and Jay Ezelle, partners at Starnes, Davis, Florie, LLP, provided key insight, having successfully represented both schools and athletes in the area of NCAA compliance.  Additionally, William King, Associate Commissioner for Legal Affairs and Compliance with the Southeastern Conference (“SEC”), provided a unique perspective as he is responsible for overseeing current litigation and assisting SEC institutions with compliance issues and rules education.  Additionally, King has over twenty-five years of legal practice experience, where he was recognized as a leader in NCAA compliance.  Rounding out the panel’s discussion group, Clinton Speegle, an associate on the NCAA compliance team at Lightfoot, Franklin & White, LLC, provided additional insight from his experience representing schools before the NCAA Committee on Infractions and involvement in all phases of NCAA enforcement investigations.  The discussion was moderated by Russ Campbell, founding partner of Balch Sports at Balch & Bingham, LLP, who has more than two decades of experience as a sports agent and is a leading attorney in the sports and entertainment arena.  Questions posed to this highly experienced panel brought about a thorough discussion on the differences and similarities between civil litigation and NCAA compliance, the overall NCAA process, and the responsibilities of head coaches, including the difficulties they face in managing players.

The event concluded with a presentation detailing the “Vanderbilt Rape Trial” (Tennessee v. Brandon E. Banks et al.) and the role sports played in this case.  The presentation featured Roger Moore, Deputy District Attorney General for Davidson County, Tennessee, and Worrick Robinson, IV, defense attorney with Robinson, Reagan & Young, PLLC, and a Cumberland alumnus.  This case revealed that, with the increase in media attention, student-athletes have become high-publicity targets, which can affect the outcome of litigation.  The significant coverage in this specific case, actually led to a retrial after a juror was recognized by a subject who had previously assaulted him.  The subject notified defense counsel, questioning why the individual was permitted to serve on the jury.

Closing out the event, Allyson Swecker, Articles and Symposium Editor for the American Journal of Trial Advocacy, gave final remarks, thanking all in attendance.  Following the event, speakers joined members of the Cumberland administration and board members from both Cumberland Law Review and the American Journal of Trial Advocacy for lunch in the skybox, overlooking the field.

On behalf of the Cumberland Law Review and the American Journal of Trial Advocacy, special thanks are offered to the speakers who presented at this year’s Symposium, Cumberland School of Law, all guests in attendance, and a specific thank you to Sean Herald, Allyson Swecker, and Lynda Reynolds for coordinating the 2017 Symposium.



An Overview of President Trump’s September 24th Travel Ban

On September 24, 2017, President Donald Trump signed a presidential proclamation placing travel restrictions on eight countries.  This proclamation was enacted to replace several expiring provisions in previous restrictive executive orders.  This is President Trump’s third travel restriction and is aimed at collecting information on individuals seeking to enter the United States, rather than banning individuals from certain Muslim-majority countries.

Click here for full article.

DACA Rescission: Fight Procedure Rather Than Constitutionality

Anna Saunders*

On September 5, 2017, the Trump Administration announced it will end the Deferred Action for Childhood Arrivals (DACA) program,[1] a program established under the Obama Administration in 2012.[2]  However, several states and DACA beneficiaries have already filed lawsuits alleging that President Trump’s decision was “unconstitutionally motivated by anti-Mexican and anti-Latino animus.”[3]  The DACA program allows young, unauthorized immigrants who grew up in the United States to obtain work permits and . . . .


* Candidate for Juris Doctor, Cumberland School of Law, Class of 2019. Junior Editor, Cumberland Law Review. Bachelor of Science in Accounting and Finance, University of Alabama, Class of 2016.

[1]     Jefferson B. Sessions III, U.S. Att’y Gen, U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017) [hereinafter Sessions Remarks], https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-daca.

[2]     See Memorandum from Janet Napolitano, Sec’y, Dep’t Homeland Sec., to David V. Aguilar, Comm’r, U.S. Customs & Border Prot., et al. 1-3 (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

[3]     Keshner, Andrew, Lawyers fight to save Mexican native who lost work permit granted through DACA, NY Daily News (Sept. 5, 2017, 8:06 PM), http://www.nydailynews.com/new-york/lawyers-fight-save-mexican-native-lost-daca-work-permit-article-1.3471816.


Peter Leasure*


     Enacted by the United States in 1977 as part of the Security Exchange Act of 1934,[1] the Foreign Corrupt Practices Act (FCPA) was one of the first of its kind in the area of foreign official anti-bribery legislation.[2] Despite increasing levels of enforcement[3] and a litany of scholarly critiques, statistical data and analysis on the FCPA is hard to find. In fact, the Organization for Economic Cooperation and Development (OECD) has noted this gap. In a Phase 2 Report, the OECD stated:

[T]here are no clear, documented, formal processes between agencies to underpin the vital exchange of information and reporting of suspected violations, and a corresponding absence of statistics.  This results in a lack of transparency and of data, which, if captured, could serve useful analytical purposes in reviewing the workings of the FCPA.

     To fill this gap, some authors have begun to address various FCPA empirical questions with statistical analysis by building their own datasets.[5]  Unfortunately, some of these studies suffer from severe methodological flaws.

     The current paper aims to critique one of these studies[6] which explored whether companies with FCPA transgressions received a benefit to voluntary disclosure.  The goal of this paper is to show that those involved in FCPA research, especially those publishing legal journals, could greatly benefit from a better understanding of statistics.  Though this paper will demonstrate that the previous study possesses several flaws, this author does not argue for the abandonment of statistical research in FCPA research.  On the contrary, the present study shows that a better understanding of statistics is indeed vital for FCPA research to progress. . . .


Suggested Citation:
Peter Leasure, Embracing Fragility in Our Data: A Cautionary Example from Research on the FCPA and Voluntary Disclosure, Cumb. L. Rev. Online (Aug. 28, 2017, 5:00 pm), https://cumberlandlawreview.com/2017/08/28/embracing_fcpa

* Peter Leasure is a Ph.D. candidate in the Department of Criminology and Criminal Justice at the University of South Carolina. His research focuses on corporate compliance and collateral consequences of conviction. His work has appeared in journals such as the Journal of Financial Crime, Journal of Experimental Criminology, Journal of Money Laundering Control, and Yale Law and Policy Review Inter Alia.

[1]  See 15 U.S.C. §§ 78m(b), 78dd-1, 78dd-2, 78dd-3 (2006).

[2] See Mike Koehler, The Facade of FCPA Enforcement, 41 Geo. J. Int’l L. 907, 911-13 (2010). For reviews of the statutory provisions of the FCPA and its penalties, see Elizabeth Spahn, International Bribery: The Moral Imperialism Critiques, 18 MINN. J. INT’L L. 155, 157 (2009).

[3] TRACE International Global Enforcement Report (2014), available at http://www.traceinternational.org/wp-content/uploads/2014/08/TRACE-Global-Enforcement-Report-2014.pdf.

[4] Org. for Econ. Co-operation and Dev., Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combatting Bribery in International Business Transactions, 27 (October 2002), https://www.oecd.org/daf/anti-bribery/anti-briberyconvention/1962084.pdf.

[5] See generally Bruce Hinchey, Punishing the Penitent: Disproportionate Fines in Recent FCPA Enforcements and Suggested Improvements, 40 Pub. Cont. L.J. 393 (2011); Annalisa Leibold, Extraterritorial Application of the FCPA Under International Law, 51 Willamette L. Rev. 225 (2014).

[6] See generally Hinchey, supra note 4.

SCOTUS Finds Disparagement Clause of the Lanham Act an Unconstitutional Violation of Free Speech

By: Christian Feldman[1]

On June 19th 2017, in an opinion written by Justice Alito, the Supreme Court of the United States unanimously determined that the disparagement clause (the “Clause”) of the Lanham Act was an unconstitutional violation of free speech.[2]  The Clause allowed trademarks to be refused if they could “disparage . . . or bring . . . into contempt” any “persons, living or dead.”[3]  Most are probably familiar with the Clause due to the controversial cases involving the NFL’s Washington Redskins.[4]  The Court’s holding in Matal v. Tam is a noteworthy triumph for both The Slants and the Washington Redskins.

The case involves an Asian-American rock band named “The Slants.”[5] The band’s lead singer, Simon Tam, applied to the U.S. Patent and Trademark Office (“PTO”) seeking to register the mark “THE SLANTS.”[6]  The PTO denied the application, reasoning that the term was derogatory towards persons of Asian descent.[7]  On review, the Court noted that when deciding if a trademark is disparaging, “an examiner at the PTO generally applies a two-part test.”[8]  The examiner must first consider “the likely meaning of the matter in question” and second “whether that meaning may be disparaging to a substantial composite of the referenced group.”[9]  During this inquiry, to determine the likely meaning of the mark, the examiner must look at the goods and services, as well as other factors such as how the mark is used in commerce.[10]  “If that meaning is found to refer to identifiable persons, institutions, beliefs, or national symbols,” then the examiner moves to the second prong.[11]  The Court explained that a “substantial composite” does not necessarily mean a majority.[12]

The PTO found that the term “SLANTS” derogatorily referenced peoples of Asian descent.[13]  Accordingly, the second prong of the analysis was satisfied. The PTO relied upon dictionary definitions, and actual evidence of offended persons as evidence of disparagement – indeed one of the band’s performances had been canceled due to public backlash over their name.[14]   For such reasons, the PTO examiner rejected Tam’s application.[15]

Tam appealed the rejection to the Trademark Trial and Appeal Board (“T.T.A.B.”), which affirmed the examining attorney’s refusal.[16]  Tam subsequently appealed to the Federal Circuit which affirmed; however, on a rehearing en banc, the Federal Circuit vacated and remanded, finding the Clause to be unconstitutional.[17]  The Court explained that the Federal Circuit found the Clause engaged in “view-point based discrimination” regulating expressive components of trademarks, and was therefore unable to withstand either strict or intermediate scrutiny.[18]  The Federal Circuit rejected the PTO’s arguments that trademarks constitute government speech and/or are “a form of a government subsidy.”[19]  Thus, the Supreme Court granted certiorari.[20]

Prior to resolving the Clause’s constitutionality, the Court had to first address Tam’s argument that “the clause does not reach marks that disparage racial or ethnic groups.”[21]  Tam maintained that the Clause could only be applied to marks that disparaged “natural and juristic persons” and, accordingly, did not pertain to racial groups.[22]  Although the Court had already denied certiorari on this question, the Court was obligated to answer, as it was potentially outcome determinative.[23]  Thus, “accepting Tam’s statutory interpretation would resolve this case and leave the First Amendment question for another day” and “[the Court] ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.”[24]  Nonetheless, the Court rejected this narrow interpretation, instead finding that “Tam’s argument [was] refuted by the plain terms of the disparagement clause.”[25]  In fact the Clause applies not only to persons, but also to “institutions and beliefs.”[26]  Justice Alito plainly stated, “it is clear that the prohibition against registering trademarks ‘which may disparage . . . persons’ prohibits registrations of terms that disparage persons who share a common race or ethnicity.”[27]  Therefore, determination as to the Clause’s First Amendment implications was justifiably ripe.

Addressing the issue of constitutionality, the Court tackled three primary contentions; any of which, separately and independently, would remove the First Amendment safeguards or reduce the inquiry to the lower rational-basis review.[28]  Those three arguments were “(1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government subsidy, and (3) that the constitutionality of the disparagement clause should be tested under a new ‘government program’ doctrine.”[29]

In regards to the first contention, the Court declined to grant trademark registration the “immunity” afforded to government speech.[30]  The Court found that trademarks “are not dream[t] up by the Federal Government” nor does the PTO edit trademarks.[31]  The Court pointed out that if trademarks constitute government speech, “the Federal Government is babbling prodigiously and incoherently” and is “unashamedly endorsing a vast array of commercial products”— not to mention the vast contradictory viewpoints the government would express.[32]  The Court found that if it were to accept this argument, then copyright registrations would also lose their First Amendment protections.[33]  Therefore the Justices rejected the PTO’s argument and held that “[t]rademarks are private, not government speech.”[34]

The Court then turned to the PTO’s next argument, that “this case is governed by cases in which this Court has upheld the constitutionality of government programs that subsidized speech expressing a particular viewpoint.”[35]  Interestingly, this is a “notoriously tricky” constitutional law issue.[36]  If the Court found trademark registration akin to a government subsidy, it would allow the PTO to circumvent First Amendment protections by allowing the government to deny registration of marks with viewpoints that it does not agree with.[37]  Again, the Court refused to extend the doctrine.  Notably, they found the PTO’s supporting precedent distinguishable from the current situation; specifically because those situations involved cash subsidies.[38]  The Court rejected the claim that cash subsidies were analogous to a trademark registration’s substantial non-monetary benefits.[39]  Indeed, most government services afford some type of non-monetary benefit, and furthermore, trademarks are not the only form of government registration.[40]  Accordingly, the Court rejected this reasoning.

The Court then addressed the Government’s final argument–that the restriction be allowed under a new “government-program” doctrine.[41]  In a sense, the new doctrine, if accepted, would be a merger between the two aforementioned doctrines, and would further reduce Free Speech protections from government agencies.[42]  The Government claimed that the situation at hand was similar to cases[43] where laws allowing public employers to automatically deduct fees from non-union employees to be used by unions in collective bargaining negotiations (but not in political affiliation matters) had been upheld.[44]  Nonetheless, the Court rejected this assertion,[45] finding cases where the government created a public forum for private speech a more appropriate guiding influence.[46]  They noted that in such cases, the Constitution allowed the government to utilize “content- and speaker-based restrictions. . . .”[47]  Notwithstanding this fact, the Court explained, “viewpoint discrimination is forbidden.”[48]  Importantly, “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”[49]  As such, the proposed “government program” doctrine was not a sufficient manner in which to analyze the disparagement clause.

After deciding that trademarks are appropriately subject to First Amendment protection, the Court then turned its attention to the level of review they should utilize.[50]  That is, should trademarks be treated as commercial speech, receiving a less burdensome review, or conversely, as non-commercial speech, subject to a more stringent review?[51]  However, this debate was rendered moot as the Court found that the Clause could not even pass the lesser commercial speech standard, known as the Central Hudson review.[52] Under this analysis the Clause would have to “serve a substantial interest, and . . . be narrowly drawn.”[53]  The Clause was argued to serve two interests: (1) preventing “underrepresented groups from being bombarded with demeaning messages in commercial advertising”; and (2) “protecting the orderly flow of commerce.”[54]  The court disregarded the first contention by saying that even though the Government clearly has an interest in preventing hateful speech, such speech is central to the First Amendment.[55]  This means that the First Amendment’s core purpose is to prevent the Government from being able to censor this type of speech. Indeed, “the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.”[56]

The Clause failed the second portion of the test, according to the Court, as it was overly broad.[57]  The Court determined that it applied to “any person, group, or institution.”[58]  Additionally, it protected persons both living and dead, and such speech is very unlikely to disrupt commerce.[59]  In finality, the Court deemed this ruling to be proper policy.  They cautioned against the fine line between commercial speech, and non-commercial speech, in trademarks,[60]  warning that “commercial speech may be cleansed of any expression likely to cause offense.”[61]  Thus the ruling of the Federal Circuit was affirmed and the Disparagement Clause was struck as facially unconstitutional.[62]

Naturally this ruling is of national relevance. “The Slants” are the obvious winners, however the Washington Redskins, and free speech proponents will also be pleased with the outcome.  The Redskins, who are currently appealing the withdrawal of their trademark registration, will certainly be afforded new ammunition to regain what was lost.[63] In light of these national implications, the Cumberland Law Review will follow the ruling’s effect in future cases and keep its readers informed should there be momentous updates.

[1] Candidate for Juris Doctor, Cumberland School of Law 2018; Bachelor of Arts, College of Charleston.

[2] See Matal v. Tam, 137 S. Ct. 1744, 1751 (2017) (“We now hold that this provision violates the Free Speech Clause of the First Amendment.”).

[3] 15 U.S.C. § 1052(a)(2012). See also Tam, 137 S. Ct. at 1751. Trademarks may also be refused for being “merely descriptive, or deceptively misdescriptive” or if the mark “is so similar to an already existing registered trademark or trade name that it is likely to cause confusion.” Tam, 137 S. Ct. at 1753 (internal citations omitted). These are codified in 15 U.S.C. § 1052(e)(1) and 15 U.S.C. § 1052(d), respectively. See id.

[4] See generally Pro Football, Inc. v. Blackhorse, 112 F. Supp. 3d 439 (E.D. Va. 2015); Pro-Football, Inc. v. Harjo, 565 F.3d 880 (Ct. App. D.C. 2009). Indeed, Pro-Football, Inc. even submitted a brief on the matter as amicus curiae on behalf of “The Slants.” See Tam, 137 S. Ct. at 1758.

[5] Tam, 137 S. Ct. at 1751.

[6] Id. at 1747. Although trademarks can be used in commerce without federal registration, doing so provides a number of advantages and protections. Specifically, “it serves as constructive notice of the registrants claim of ownership”; is prima facie evidence of validity of the mark; and makes the mark incontestable after five years of registration. See Tam, 137 S. Ct. at 1753 (quoting 15 U.S.C. § 1072).

[7] Id. at 1751.

[8] Tam, 137 S. Ct. at 1753 (internal quotations omitted).

[9] Id. at 1754 (quoting Trademark Manual of Examining Procedure § 1203.03(b)(i) (Apr. 2017)).

[10] Id. at 1753.

[11] Id.

[12] Id. at 1754.

[13] Id.

[14] Tam, 137 S. Ct. at 1754.

[15] Id.

[16] See In re Tam, 108 U.S.P.Q.2d (West) 1305, *8 (T.T.A.B. 2013) (“We affirm the refusal.”). Specifically, the T.T.A.B. applied the Clause’s established two-pronged test. Id. at *4. They found that (1) the likely meaning of “THE SLANTS” to mean a “derogatory reference to people of Asian descent”; and (2) it was disparaging to a substantial composite of persons. Id. at *5, *7.

[17] In re Tam, 808 F.3d 1321, 1357 (Fed. Cir. 2015) (en banc) (“We hold that the disparagement provision of § 2(a) is unconstitutional because it violates the First Amendment. We vacate the Board’s holding that Mr. Tam’s mark in unregistrable, [sic] and remand this case to the Board for further proceedings.”).

[18] Tam, 137 S. Ct. at 1754.

[19] Id.

[20] Lee v. Tam, 137 S. Ct. 30 (2016) (granting certiorari).

[21] Tam, 137 S. Ct. at 1755.

[22] Id.

[23] Id.

[24] Id. (quoting Spector Motor Serv. Inc, v. McLaughin, 323 U.S. 101, 106 (1944)).

[25] Id. at 1756.

[26] Id.

[27] Tam, 137 S. Ct. at 1756 (internal citations omitted).

[28] Id. at 1757.

[29] Id.

[30] Id. Importantly “government speech” is not limited by the First Amendment. Tam, 137 S. Ct. at 1757. The Court has noted that “it is not easy to imagine how government could function if it were subject to the restrictions that the First Amendment imposes on private speech.” Id. (quoting Pleasant Grove v. Summum, 555 U.S. 460, 467 (2009)) (internal quotation marks omitted).

[31] Id. at 1758.

[32] Id. at 1759 (“[I]f trademarks represent government speech, what does the Government have in mind when it advises Americans to ‘make. believe’ (Sony), ‘Think Differently’ (Apple) . . . or ‘Have it Your Way’ (Burger King)?”).

[33] Tam, 137 S. Ct. at 1760.

[34] Id. More specifically, the Court distinguished the case law on which the Government relied to establish trademarks as government speech. Tam, 137 S. Ct. at 1759-61.  The Court found that the cases primarily involved scenarios in which the Government was the entity registering the trademark, as opposed to a private individual or business. See id. at 1760. Allowing trademark registration to operate as government speech would “constitute a huge and dangerous extension of the government-speech doctrine.” Id.

[35] Tam, 137 S. Ct. at 1760.

[36] Id.

[37] Id. at 1761.

[38] Id.

[39] Id.

[40] Tam, 137 S. Ct. at 1761 (again noting how doing so would implicate far more governmental activities than just trademarks, which the Court found to be a dangerous limitation of Free Speech protections).

[41] Id.

[42] Id. However, the doctrine is not simply a merger of the “government speech” or “government subsidy” doctrines as it incorporates a third element derived from automatic deduction of union dues from non-union employee cases. Id. at 1761-62.

[43] Specifically, two cases: Davenport v. Washington Ed. Assn., 551 U.S. 177 (2007); Yasura v. Pocatello Ed. Assn., 555 U.S. 353 (2009).

[44] Tam, 137 S. Ct. at 1762.

[45] Id. (“[T]hose cases occupy a special area of First Amendment case law, and they are far removed from the registration of trademarks.”).

[46] Id. at 1763.

[47] Id.

[48] Id. (internal quotation marks omitted).

[49] Id. (quoting Street v. N.Y., 394 U.S. 576, 592 (1969))(internal quotation marks omitted). The court determined that here, the Clause clearly was viewpoint discrimination even though it applied evenhandedly to all groups. Tam, 137 S. Ct. at 1763. This is so because it denies registration “to any mark that is offensive to a substantial percentage of the members of any group.” Id. It seemingly discriminates against the viewpoint of the offending speaker. See id.

[50] Tam, 137 S. Ct. at 1763-64.

[51] Id. at 1764. The Government maintains that trademarks are commercial and are regulated to ensure stability in intrastate commerce. Id. On the other hand, Tam argued that his trademark extends beyond mere commercial speech, and at its core is expressive, i.e. “these trademarks do not simply identify the source of a product or service but go on to say something more. . . .”).

[52] Id.

[53] Id. (internal quotation marks omitted).

[54] Id. This is the Court’s generalization of the interests offered in both the Government’s and amicus briefs. See id.

[55] Tam, 137 S. Ct. at 1764.

[56] Id. (quoting U.S. v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J. dissenting))(internal quotation marks omitted).

[57] Id. at 1765. (“[I]t goes much further than is necessary to serve the interest asserted.”).

[58] Id. (emphasis in original).

[59] Id.

[60] Id.

[61] Tam, 137 S. Ct. at 1765.

[62] Id. Justice Gorsuch did not participate in the opinion. Additionally, Justice Kennedy, wrote a concurring opinion in which Justices Ginsberg, Kagan, and Sotomayor joined in.

[63] Appeal of Pro-Football, Inc. v. Amanda Blackhorse, 112 F. Supp. 3d 439 filed on August 6, 2015 to the 4th Circuit Court of Appeals.


Ginsburg Makes Strides Towards Gender Equality in Sessions v. Morales-Santana

By: Wesley Walker[1]

     On June 12, 2017, the United States Supreme Court issued an opinion in Sessions v. Morales-Santana,[2] written by Justice Ginsberg, and held part of the Immigration and Nationality Act (hereinafter the “Act”) to be unconstitutional.[3]  The Act was designed to set a standard by which children could obtain citizenship if one parent was a U.S. citizen but the other was not.[4]  For married couples, the Act contains a “ten/five” rule whereby the U.S. citizen parent must have lived in the United States for ten years before the child’s birth, at least five of which were after the parent turned fourteen years old.[5]  One section[6] of the Act made the ten/five rule applicable to unmarried U.S. citizen fathers, but an additional subsection[7] provided an exemption from this requirement for unmarried U.S. citizen mothers.  Under the Act, a child born out of wedlock to a female U.S. citizen would gain citizenship if the mother lived in the United States for one continuous year, regardless of other factors.  However, if a male U.S. citizen and a female non-citizen conceived a child, that child could only receive U.S. citizenship if the father had lived in the United States for ten years over the course of his life, and for five years after he turned fourteen.

     In Morales-Santana, Luis Ramon Morales-Santana challenged the constitutionality of the ten/five rule claiming it unjustly classified him as an alien, which was one of the factors that led to his deportation.[8]  His classification as an alien stemmed from Morales-Santana’s father, José Morales, not satisfying the five-year requirement after reaching the age of fourteen.[9]  José Morales moved from Puerto Rico only twenty days before his nineteenth birthday and conceived Luis with a non-citizen.[10]  José held Luis out as his own child, married his mother, and added his name to Luis’s birth certificate.[11]  Despite these facts, an immigration judge denied Luis’s claim for citizenship and in turn deprived his father of equal protection.[12]  On review, the Board of Immigration Appeals affirmed the immigration judge’s decision but was later overturned by the Second Circuit.[13]  The case was remanded, and a petition for certiorari was granted because a circuit split existed on the issue of derivative citizenship.[14]

     At the outset of the opinion, Justice Ginsberg discussed the requirements Congress enacted to acquire U.S. citizenship.[15]  She then traced the family history of Morales-Santana that led to the unique and precarious situation surrounding his putative citizenship.[16]  Justice Ginsburg noted that this allegation of a violation of the Equal Protection Clause of the U.S. Constitution was unique since Morales-Santana claimed that the gender-based discrimination occurred against his father and not himself.[17]  Though the traditional approach is that “[one] cannot rest his claim to relief on the legal rights . . . of third parties”[18] an exception to the rule exists when “the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor’s ability to protect his own interests.”[19]  Ginsberg discussed both of these factors briefly and concluded they were both met due to the father-son relationship, and the fact that José Morales was deceased.[20] For that reason, the Court held that Morales-Santana was the best proponent of his father’s claim.

     Ginsberg took an almost sarcastic approach when discussing the legislative history of the provision that Morales-Santana challenged. Discussing a line of past cases, she described the heightened level of scrutiny that gender-based legislation must satisfy in order to meet the guarantee of equal protection.[21]  Ginsberg held that this case was no different and there must be an “exceedingly persuasive justification” for the difference between citizenship obtained through a mother and a father under the Act.[22]  This justification, she discussed, must be an important governmental objective, which is served by a discriminatory law that is narrowly tailored to achieve that objective.[23]  However, she noted that this interest, viewed post-Obergefell, must be served in the present day, not just in the past: “[we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.”[24]

     The section at issue has always been a contentious subject, as are any tools used to legislate the marital relationship. At the time of this code’s inception, a woman was thought to be subservient to a man, and presumed to be the guardian of all children born to her.[25]  In 1940, Congress struck the father-controls assumption and simultaneously codified the mother-as-sole-guardian perception concerning unwed parents.[26]  At that time, fathers were deemed less qualified than mothers to raise a child.[27]  However, as time has passed, Ginsberg surmised that laws grounded in sexist and “anachronistic” language glaringly fail the equal protection guarantee post-1971.[28] In reading Ginsburg’s analysis, her passion for true “equal protection under the law” jumps out at the reader from the opinion. For such reasons, she, along with all the other Justices, concurred that these sections violated the equal protection guarantee.[29]

     Although the Morales-Santana case had a favorable outcome, Morales-Santana himself will not benefit from this decision. The Court held that jurisprudence, precedent, and legislative intent would run contrary to a decision in his favor.[30]  In exercising judicial restraint, and in classic Justice Ginsberg fashion,[31] she sided with the rationale of the U.S. Government in extending the ten/five requirement to children born to unmarried U.S. female citizens.[32]

     Many will see this as a landmark case as Justice Ginsberg’s opinion holds that “disparate criteria [based upon gender] . . . cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens . . . .”[33]  Justices Thomas and Alito joined in a concurrence, stating that “discrimination itself . . . perpetuat[es] archaic and stereotypic notions  incompatible with the equal treatment guaranteed by the Constitution.”[34]  However, this “pass the buck” to Congress mentality to amend the code could have a disparate impact on children born out of wedlock, as there is no guarantee that Congress will address this issue swiftly or at all.  Others have commented that Ginsburg’s ability to fuse the gender equality standard with Obergefell’s “equal dignity” rationale to demand a justification for sex discrimination that comports with our contemporary sense of fairness is exceptionally forward thinking.[35]  This new standard could significantly hinder any individual or entity from citing a law that is based upon archaic ideals as a basis for a denial of equal protection.

     But what does this all mean? The figurative football is in Congress’ possession, and in congressional politics there is no delay of game. As this case highlights, immigration has and will continue to be at the forefront of the political and legal debates in our country. However, one thing is certain: in the case of Morales-Santana, Justice Ginsberg boldly advanced the cause of equal protection and liberty and justice for all.

[1] Cumberland School of Law, Candidate for Juris Doctor, May 2018.

[2] Sessions v. Morales-Santana, No. 15-1191, 2017 WL 2507339, at *1, *18 (U.S. June 12, 2017).

[3] 8 U.S.C. § 1409 (2012), invalidated by Morales-Santana, 2017 WL 2507339, at *18.

[4] See id.

[5] 8 U.S.C. § 1401(g) (2012).

[6] 8 U.S.C. § 1409(a). Referred to as the “ten/five rule” by the author.

[7] 8 U.S.C. § 1409(c).

[8]  See Morales-Santana, 2017 WL 2507339, at *6.

[9] See id.

[10] Id.

[11] Id. at *7.

[12] Id.

[13] Id.

[14] Morales-Santana, 2017 WL 2507339, at *7.

[15] See id. at *8.

[16] See id.

[17] Id.

[18] Id. at *8 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).

[19] Id. (quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)).

[20] Morales-Santana, 2017 WL 2507339, at *8 (U.S. June 12, 2017).

[21] Id. at *9.

[22] Id. (quoting United States v. Virginia, 518 U.S. 515, 531 (1996)).

[23] Id. (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).

[24] Id. (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015)) (alterations in original).

[25] Id. at *10.

[26] Morales-Santana, 2017 WL 2507339, at *11.

[27] Id.

[28] Id. at *9 (citing Califano v. Westcott, 443 U.S. 76, 84 (1979); see id. at 88–89 (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers)). Accord United States v. Virginia, 518 U.S. 531-34 (1996); Califano v. Goldfarb, 430 U.S. 199, 206–07 (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld, 420 U.S. 636, 648–53 (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, 411 U.S. 677, 688–91 (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed, 404 U.S. 71, 74, 76–77 (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).

[29] Id. at *19.

[30] Morales-Santana, 2017 WL 2507339, at *18.

[31] Using men to advance the cause of equal protection based upon gender discrimination.

[32] Morales-Santana, 2017 WL 2507339, at *19.

[33] Id. at *16.

[34] Id. n.21.

[35] Mark J. Stern, Ruth Bader Ginsburg Affirms the “Equal Dignity” of Mothers and Fathers, Slate (June 13, 2017, 12:54 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/sessions_v_morales_santana_ruth_bader_ginsburg_defends_gender_equality.html.