Blog

 In 2021 the Sixth Circuit became one of the first circuit courts to navigate the waters of free expression and gender identity with its keystone decision, Meriwether v. Hartop.[1] Here, the Court upheld the speech rights of a philosophy professor at Shawnee State University who was charged with misconduct after refusing to use the preferred pronouns of a student in his class.

Far removed from the days of Moses and the reeds,[1] most adoptions today are open adoptions.[2] The particularities of open adoption agreements vary according to their individual terms but frequently include post-adoption visitation between the birth parent(s) and child.[3]  Because Kentucky law is silent regarding the enforceability of open adoption agreements, these agreements are in effect unenforceable.[4]  It is time for Kentucky’s laws to reflect what is known and practiced by other states[5] — that closed adoption no longer fulfills its intended purposes, and open adoption agreements often serve the best interests of the child, adoptive parents, and birth parents.

Environmental, Social, and Governance (“ESG”) principles were forged in the 2004 UN Global Compact Report titled “Who Cares Wins: Connecting Financial Markets to a Changing World.”[1] This report served as a promotional piece for the incorporation of ESG criteria into the investment process and identified various strategies for investors, fiduciaries, and market regulators. Within the report, a key assertion is:

“Both investors and asset managers should develop and communicate proxy voting strategies on ESG issues as this will support analysts and managers in producing relevant research and services.”[2]

During and in the years following the COVID-19 pandemic, social media and the internet were a vital part of the daily lives of Americans. It is where we went to learn more about what was going on around us, and connect with others in unprecedented times. The increase in use also lead to an increase in misinformation, and of the federal government’s actions to stop its spread. In this blog, KLJ Vol. 112 Staff Editor Abigail Vicars discusses Biden v. Missouri, and its implications as case law on this topic continues to develop.

Pursuant to the Supreme Court’s ruling in National Collegiate Athletic Association v. Alston, NCAA student athletes now have the ability to profit off of their name, image, and likeness without losing their collegiate eligibility. However, the restrictions on accepting prize money earned in professional competitions remain in place. In this blog, KLJ Vol. 112 Staff Editor Tate Craft argues that the Court’s holding in Alston may also destabilized the NCAA’s amateurism rules, allowing student athletes to accept performance payouts earned in professional competitions.

Imagine that you are in the business of commercial real estate. You own a number of office buildings that you lease to businesses. This is normally profitable, but declining property values, the rise of remote work, and economic uncertainty have cut into your profits.[1] Worse, imagine now that a state regulator brings a consumer protection lawsuit against one of your largest tenants.[2]  The state regulator hauls your tenant in front of a judge. The lawyers for the state make a motion for court to place the tenant’s business in a receivership,[3] arguing that the appointment of a receiver is the only way to protect the tenant’s assets which could later be used to pay consumer damages and state penalties. Alternatively, the court could — on its own motion — appoint a receiver if the “facts justify the appointment and to preserve and protect property in litigation.”[4]

On January 9, 2024, the same day the U.S. Department of Labor (“DOL”) published the Final Rule for Employee or Independent Contractor Classification under the Fair Labor Standards Act (“FLSA”),[1] the DOL’s Wage and Hour Division announced their recovery of over $127,000 in wages from Lucero Aerospace Staffing Solutions, LLC for misclassifying workers as independent contractors.[2] The aviation maintenance workers were paid “straight-time rates for all hours” and were not paid the “half-time rate required” for overtime.[3] Investigators further reported that the Alabama staffing agency also violated the FLSA by failing to pay at least one worker minimum wage.[4]

A foundational point of the United States criminal justice system is the right to assistance of counsel in all criminal prosecutions.[1] In 1964, the Criminal Justice Act created a system for appointing attorneys and paying them for their work.[2]  For federal prosecutions, there are three systems in place for public defense: federal public defender agencies, community defender organizations, and Criminal Justice Act (CJA) panels.[3] Federal public defenders are federal government employees, with the chief defender being appointed to a four year term by the court of appeals in the relevant district.[4] Community defender organizations are non-profit organizations incorporated by state statute and receive grants from the federal government.[5] The majority of federal districts use these two systems. 

In October 2023, the U.S. International Trade Commission (ITC) ruled that certain models of the Apple Watch infringed on patents held by the Masimo.[1] Masimo Corp., a global medical technology company, alleged that “Apple infringed its patent for a blood oxygen sensor that can read someone’s pulse.”[2] As a result of their ruling, the commission implemented an import ban on the allegedly infringing watches on Dec. 26, but Apple fought back on this temporary ban.[3] Apple “won a temporary reprieve from a federal appeals court . . . , two months after the US International Trade Commission ruled the smartwatches infringed patents held by medical-device maker Masimo Corp.—and one day after the device’s US sales halted.”[4] This allowed the Apple Watch Series 9 and Ultra 2 to be sold in Apple’s stores temporarily.[5] Apple also “filed an emergency request to pause enforcement of the ITC’s ban until its motion for a full stay pending appeal is resolved.”[6]

On December 20, 2023, LexisNexis announced that after a brief test period with over 450 law school librarians, its generative artificial intelligence (“AI”) platform, Lexis+ AI, would be available to second- and third-year law students for immediate use.[1] According to LexisNexis, 78% of law school faculty reportedly plan to teach students to use generative AI tools in legal scholarship.[2] With the Lexis+ AI tool, student users can choose from two functions: “Ask a legal question” or “Generate a draft.”[3] There is no doubt that Lexis+ AI and other similar generative AI platforms will continue to transform today’s legal landscape, and such innovative technology certainly give rise to many important considerations, both predictable and unforeseen. In response to these technological developments, several jurisdictions have implemented new rules concerning the submission of AI-prepared materials.[4] Kentucky is not one of them.

Jefferson County Public Schools (JCPS) is the largest school system in Kentucky, at just over 96,000 students.[1] To put this into perspective, the JCPS Parent Teacher Association has more members than forty-six Kentucky counties have as residents.[2] Due to the sheer size of the district proportionality, it is fair to say that the problems of JCPS are the problems of Kentucky. Add in Louisville’s specifically complicated racial history around busing, and the plot changes from just a Kentucky story, to a decidedly American one.[3]

In today's society, people face various challenges when seeking healthcare. People have hectic work schedules, mobility issues, or live in rural areas, so taking time to drive to the doctor’s office or to spend time sitting in a waiting room while sick is not always practical. Seeing a doctor virtually from the comfort of home while lying on the couch or in bed is the perfect “medicine” for today’s busy lifestyles. These digital platforms, referred to as telehealth, utilize technology to provide medical consultations, diagnoses, remote patient monitoring (RPM), and through treatment via messaging apps, video calls, and phone calls.[1]

More than thirty states and the District of Columbia have implemented mandatory retirement after a given age for their judges.[1] Courts such as Pennsylvania have adopted a mandatory retirement age of seventy-five, with judges having until the end of the calendar year to retire after reaching that age.[2] Seventy-five is currently the highest age limit at which a state judge may serve on the bench for states that have implemented mandatory retirement plans.[3] While many state courts have adopted a mandatory retirement age, federal court judges serve with life tenure or “good Behavior”.[4] Judge Pauline Newman—who serves on the Federal Circuit—is the oldest active judge at ninety-six.[5] Judge Newman is lauded for her work on patents.[6] Her colleagues have gone so far as to call her “the heroine of the patent system.”[7]

Taxes have or will have an impact on every person who “lives or works” in the United States throughout their lifetime.[1] Undeniably, the monetary implications of taxes are felt by many, as the aforementioned standard of simply living or working in the United States is a rather low bar to meet. Taxes related to the horse industry carry a familiar punch to their owners as “[t]he cost of owning a horse is such that it is nearly impossible to be part of the equine industry unless it is done as a business.”[2] As the economic feasibility of owning racehorses is shaky, “[t]here is no need to pay more than you need to properly care for your horse and you should make certain that you are maximizing the tax benefits of your investment.”[3] Congress should pass The Race Horse Cost Recovery Act of 2023 and make permanent the three-year depreciation to reduce the economic instability that race horse owners face and ensure the continued livelihood of horse racing in our country.

609,820 Americans are expected to die from cancer in 2023.[1] About 14% of those incidences of cancer are detected through “a recommended screening test.”[2] According to one expert, “’the vast majority of cancer types don’t have screening tests available.’”[3] It has been estimated that having too few patients enroll causes about one-fifth “of cancer clinical trials [to] fail.”[4]  Congress has previously attempted to address these problems.[5] The CLINICAL TREATMENT Act, enacted in 2019, requires states “to cover and reimburse routine costs of care for treating a Medicaid enrollee who is participating in a qualifying clinical trial.”[6] Even when people choose to participate in clinical trials, the ambiguous language of the CLINICAL TREATMENT Act can lead to additional costs for participants.[7] Due to that ambiguity, as well as disparities in insurance policies[8] and limited diversity among participants in clinical trials,[9] further legislation is needed to expand requirements for the insurance coverage of participation in clinical trials for cancer screenings to ensure that testing methods for cancer are as effective and widely available as possible.

Imagine being on your way to work when suddenly, an uninsured driver collides into your vehicle. Considering all available options, you decide to initiate suit. After unsuccessfully trying to serve the defendant via certified mail,[1] you provide the defendant’s contact information and $50 service fee[2] to the county sheriff.[3] Upon further inquiry, the sheriff determines that (1) the defendant does not live at the address provided, (2) the current homeowner does not know the defendant, and (3) there is no traceable record of the defendant’s current whereabouts. Clearly, personal service did not work. So now what?

Women have been asked to faithfully march to the top of the hill, children strapped to their backs, with the promise that equality awaits if they just keep climbing. But what, if anything, are we to do when we reach the top only to find that our summit’s foundation is a false floor—forcing us back to the beginning? While hyperbolic, this imagery is far from hysteric . . . it is reality now faced by millions as COVID-19 relief childcare subsidies ended October 1, 2023.[1] At the same time, the Federal Reserve (“The Fed”) has been actively fighting inflation through a series of interest rate hikes, traditionally implemented to slow demand.[2] When inflation defies this expectation, however, the Fed seeks to accomplish its goal through other means—including workforce reduction. Regardless of intention, the Fed will likely reach their inflation reduction goal via the Congressional inaction surrounding childcare subsidies because many mothers will have to make the choice leave their careers rather than pay exorbitant childcare costs.

In its 149-year tenure, Churchill Downs has hosted some of the most spectacular moments in sports history.[1] The racetrack witnessed its most recent milestone on September 7th, 2023, when Governor Andy Beshear traveled to Louisville, KY to place the first legal sports wager in the Commonwealth’s history.[2] The Governor’s bet marks the culmination of what has been a persistent push by Kentucky residents to legalize sports gambling in the Commonwealth and signifies the start of what is set to be an integral relationship between casino entertainment companies and the horseracing industry.[3]

The Kentucky Supreme Court Rules lay out the broad purpose of the fitness component of the Kentucky Bar application.[1] Fitness, in the language of the rule, speaks to the “competence of a prospective lawyer,”[2] and the function of the fitness section of the application is to “exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, Courts or the profession.”[3] Fitness is therefore about the desirability of prospective conduct. Bar examiners are not medical professionals rendering clinical judgments; their task is rather to enforce social preferences against the admission into legal practice of those who, because of some perceived and present defect, cannot carry out their professional responsibilities.

The basis of the non-delegation doctrine is straightforward and rooted in the principle of separation of powers: Congress may not fully delegate its strictly legislative powers to the executive, or some other branch of government.[1] The Court’s current test requires little to show the delegation is not strictly legislative, Congress must only provide some “intelligible principle” upon which the executive branch can rely while carrying through their delegated authority.[2] Consequently, this broad discretion has resulted in the Court’s almost constant deference to the executive’s authority.[3] Only twice in the Supreme Court’s jurisprudence, both during the height of the New Deal, has the Court found that such an “intelligible principle” was lacking.[4] This viewpoint existed almost entirely undisturbed for eighty-five years until Gundy v. United States was decided in 2019. Although the plurality decided the case along nearly identical lines as previous cases, a lukewarm concurrence from Justice Samuel Alito and a dissenting opinion from Justice Neil Gorsuch, joined by Justice Clarence Thomas and Chief Justice John Roberts, seem to suggest that the non-delegation doctrine may soon experience an overhaul.[5]