Graphic: Masthead for Washburn Law Journal (WLJ) Online.

Washburn Law Journal Online

Pump the Brakes: The Clean Water Act Does Not Cover Hydrologically Connected Groundwater [Kentucky Waterways Alliance v. Kentucky Utilities Company, 905 F.3d 925 (6th Cir. 2018); Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018)]

Jesse T. Nation | April 18, 2019 | Read this comment

Summary: The Supreme Court will favor an interpretation of the Clean Water Act (“CWA”) that does not include hydrologically connected groundwater as a point source. Placing groundwater within the jurisdiction of the CWA would violate textualism’s pump the brakes doctrine—environmental laws should not be interpreted in ways that exponentially increase jurisdiction of the act and displace the current regulatory schemes.

Preferred Citation: Jesse T. Nation, Pump the Brakes: The Clean Water Act Does Not Cover Hydrologically Connected Groundwater, 58 Washburn L.J. Online 111 (2019), http://washburnlaw.edu/wljonline/nation-pumpthebrakes

How Good is Good Enough for a “Good Cause” Extension Before the Patent Trial and Appeal Board? [Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336 (Fed. Cir. 2018)]

D. Dean Kirk II | April 4, 2019 | Read this comment

Summary: In the wake of recent Federal Circuit and Supreme Court decisions, the Patent Trial and Appeal Board has seen its discretion reduced and responsibilities expanded. As the Board’s responsibilities grow, but its options for deadline adjustment remain narrow, the Board is left with the options of joinder, good cause, or non-institution. When a case is improper for joinder, and non-institution would frustrate the Board’s purpose, the only remaining option is time adjustment for good cause. However, the Board has invoked good cause only once, under extremely unusual circumstances, and it remains unclear how the Board will use the standard in the future.

Preferred Citation: D. Dean Kirk II, How Good is Good Enough for a “Good Cause” Extension Before the Patent Trial and Appeal Board?, 58 Washburn L.J. Online 104 (2019), http://washburnlaw.edu/wljonline/kirk-goodcauseextension

The Kansas Supreme Court Makes a Policy Determination in the Guise of Statutory Interpretation [State v. Wetrich, 412 P.3d 984, 986 (Kan. 2018)]

Jacob B. Cantwell | March 21, 2019 | Read this comment

Summary: The Kansas Supreme Court incorrectly interpreted K.S.A. § 21-6811(e)(1) [formerly K.S.A. § 21-4711(e)]. The court found that when determining a defendant’s criminal history score, an out-of-state crime would only be “comparable” to a Kansas person felony if the elements of the out-of-state offense were identical to or narrower than the Kansas offense. The court incorrectly used statutory interpretation to come to this conclusion and did not adequately acknowledge Kansas precedent to determine that the identical-or-narrower test is required.

Preferred Citation: Jacob B. Cantwell, The Kansas Supreme Court Makes a Policy Determination in the Guise of Statutory Interpretation, 58 Washburn L.J. Online 96 (2019), http://washburnlaw.edu/wljonline/cantwell-policydetermination

Inter Partes Reviews Are Not Takings: You Never Had a Right [Brief for the Petitioner, Advanced Audio Devices, LLC v. HTC Corp., 139 S. Ct. 334 (2018) (No. 18-183), 2018 WL 3819620]

Jesse T. Nation | February 28, 2019 | Read this comment

Summary: Inter partes reviews (“IPRs”) are not takings. This Comment will argue the background principle defense is an affirmative defense that bars patent owners from winning a takings challenge against IPRs because if an IPR cancels a patent, the patent owner never had a right to the patent.

Preferred Citation: Jesse T. Nation, Inter Partes Reviews Are Not Takings: You Never Had a Right, 58 Washburn L.J. Online 89 (2019), http://washburnlaw.edu/wljonline/nation-interpartesreviews

How Copyright Law Can Help Courts Analyze Business Objections in Unconventional Artistry [Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018)]

D. Dean Kirk II | February 14, 2019 | Read this comment

Summary: The U.S. Supreme Court reversed the Colorado Court of Appeals’ upholding of a cease-and-desist order issued by the Colorado Civil Rights Commission against a bakery and its religious owner. The owner alleged that compelling him to create cakes for same-sex weddings would violate both his rights to free speech and to free exercise of religion. The Supreme Court’s review was limited to the Commission’s discrimination against the owner. Unfortunately, any analysis of the protectable nature of wedding cakes or cake artistry was inherently frustrated by the parties’ disagreement over whether the owner had refused service for all goods, or only for wedding cakes. By limiting its analysis to the Commission’s impermissible hostility to religion, the Court could not provide additional guidance for what it admitted to be a complex balancing process. Future similar cases may benefit by importing recent copyright standards on sculpture protection to separate protectable expression from general business accommodation, sidestepping future disagreements by directly addressing the expression’s protectable nature through a field of law designed for the task.

Preferred Citation: D. Dean Kirk II, How Copyright Law Can Help Courts Analyze Business Objections in Unconventional Artistry, 58 Washburn L.J. Online 81 (2019), http://washburnlaw.edu/wljonline/kirk-copyright

Use of AMA Guides Under Kansas Workers Compensation Act [Johnson v. U.S. Food Service, 427 P.3d 996 (Kan. Ct. App. 2018)]

Aaron J. Greenbaum | January 31, 2019 | Read this comment

Summary: The Kansas Court of Appeals took action that the legislature previously declined to take in 2015 by repealing the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (“Sixth Edition”) as controlling law. Amidst the separation of powers issues, the Kansas Court of Appeals held the use of the Sixth Edition unconstitutional on its face. The Court struck portions of K.S.A. §§ 44-510d(b)(23), 44-510d(b)(24), and 44-510e(a)(2)(B), leaving the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition (“Fourth Edition”). The Court appropriately struck the Sixth Edition to maintain the Grand Bargain; however, the Kansas Supreme Court will be the final arbiter as to whether the Court of Appeals overstepped its judicial bounds. Courts, legislatures, and other national workers’ compensation proponents await the Kansas Supreme Court’s determination of the Sixth Edition’s constitutionality.

Preferred Citation: Aaron J. Greenbaum, Use of AMA Guides Under Kansas Workers Compensation Act, 58 Washburn L.J. Online 63 (2019), http://washburnlaw.edu/wljonline/greenbaum-AMAworkerscomp

Wrongful Discharge in Spite of Public Policy: Unreasonably Narrowing the Wrongful Discharge Exception [Yerra v. Mercy Clinic Springfield Communities, 536 S.W.3d 348 (Mo. Ct. App. 2017), reh’g and/or transfer denied (Nov. 22, 2017), transfer denied (Jan. 23, 2018)]

Hannah L. Woofter | January 17, 2019 | Read this comment

Summary: The Missouri Court of Appeals recently overturned a whistleblower instruction for a plaintiff-employee who alleged she was wrongfully terminated in violation of public policy. The employee alleged she was terminated after reporting, in good faith, that her hospital- employer was double-billing patients. The statute she cited for support requires protections for employees who in good faith report allegedly violative conduct. However, the court determined that the employee’s reasonable belief her employer engaged in wrongful conduct was insufficient. It determined a whistleblower instruction was only appropriate if an employer actually engaged in the alleged conduct. Requiring an employee prove the hospital created fraud makes the wrongful discharge doctrine nearly impossible to satisfy and cuts against its purpose—to protect employees who protect the public.

Preferred Citation: Hannah L. Woofter, Wrongful Discharge in Spite of Public Policy: Unreasonably Narrowing the Wrongful Discharge Exception, 58 Washburn L.J. Online 53 (2019), http://washburnlaw.edu/wljonline/woofter-wrongfuldischarge

Estop Me If You’ve Heard This One Before: When Judicial Integrity Is Not Protected by the Doctrine of Judicial Estoppel [Vacca v. Missouri Dep’t of Labor & Indus. Relations, 2017 WL 5146154 (Mo. Ct. App. Nov. 7, 2017), transferred to Mo. S. Ct. (Mar. 6, 2018)]

Morgan E. Hammes | November 29, 2018 | Read this comment

Summary: Matthew Vacca, Administrative Law Judge for the Workers’ Compensation Division, filed for divorce and asked for maintenance from his wife because he was unable to work. He also filed a lawsuit against his employer for retaliation and wrongful termination where he stated he was capable of continuing to work with accommodations. The Missouri Court of Appeals ruled the doctrine of judicial estoppel, which prevents parties from making inconsistent statements to two courts, did not apply. However, the purpose of the doctrine is to promote judicial integrity. An Administrative Law Judge, who acts as an officer of the court, should not be able to abuse the same system he is charged with upholding by making contradictory statements to the court.

Preferred Citation: Morgan E. Hammes, Estop Me If You’ve Heard This One Before: When Judicial Integrity Is Not Protected by the Doctrine of Judicial Estoppel, 58 Washburn L.J. Online 43 (2018), http://washburnlaw.edu/wljonline/hammes-judicialestoppel

Lost in Translation: Colorado’s Supreme Court Overlooking the Requirement of a Knowing and Intelligent Miranda Rights Waiver [People v. Nguyen, 406 P.3d 836 (Colo. 2017)]

Benjamin B. Donovan | November 15, 2018 | Read this comment

Summary: In a 4-3 opinion, the Colorado Supreme Court reversed the district court’s suppression order, holding the interpreter adequately conveyed the defendant’s Miranda rights to him. In so ruling, the majority failed to examine the totality of the circumstances to determine if the defendant adequately understood his rights before concluding the defendant’s waiver was knowing and intelligent.

Preferred Citation: Benjamin B. Donovan, Lost in Translation: Colorado’s Supreme Court Overlooking the Requirement of a Knowing and Intelligent Miranda Rights Waiver, 58 Washburn L.J. Online 34 (2018), http://washburnlaw.edu/wljonline/donovan-mirandarights

Paging Constitutional Protections: Interrogating Vulnerable Suspects In Hospitals [People v. Sampson, 404 P.3d 273 (Colo. 2017)]

Bretton William Hake Kreifel | November 1, 2018 | Read this comment

Summary: In People v. Sampson, the Colorado Supreme Court held that a police interrogation of a suspect while he was receiving medical treatment for a stab wound in a hospital did not violate the suspect’s rights. In doing so, the Colorado Supreme Court allowed police to continue to use arguably coercive interrogation techniques. This appears to run counter to one of the goals of Miranda warnings, which is to ensure that statements made during an interrogation are voluntary.

Preferred Citation: Bretton William Hake Kreifel, Paging Constitutional Protections: Interrogating Vulnerable Suspects In Hospitals, 58 Washburn L.J. Online 25 (2018), http://washburnlaw.edu/wljonline/kreifel-interrogations

Consent vs. Authority: An Examination of the Tenth Circuit’s View of Consensual Police Encounters [United States v. Hernandez, 847 F.3d 1257 (10th Cir. 2017)]

Timothy L. Carney | October 18, 2018 | Read this comment

Summary: The Tenth Circuit Court of Appeals held two Denver Police Officers did not have reasonable suspicion to detain an individual. The court also found the officers did not have proper consent when they used a “show of authority” in requesting the individual stop walking while talking with them. The court erred in finding that consent did not exist in this case.

Preferred Citation: Timothy L. Carney, Consent vs. Authority: An Examination of the Tenth Circuit’s View of Consensual Police Encounters, 58 Washburn L.J. Online 18 (2018), http://washburnlaw.edu/wljonline/carney-policeencounters

Registration Approach vs. Application Approach: Section 411(a)’s Copyright Registration Requirement [Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 856 F.3d 1338 (11th Cir. 2017)]

Hayley N. Sipes | October 04, 2018 | Read this comment

Summary: The term “registration” in section 411(a) of the Copyright Act receives different treatment among federal circuit courts. The Eleventh Circuit Court of Appeals held that registration only occurs after a copyright is registered by the Register of Copyrights, adopting the “registration approach.” The Tenth Circuit also follows this approach. The Fifth and Ninth Circuits, however, apply the “application approach,” holding that filing an application is sufficient to show registration under section 411(a) to bring an infringement suit.

Preferred Citation: Hayley N. Sipes, Registration Approach vs. Application Approach: Section 411(a)’s Copyright Registration Requirement, 58 Washburn L.J. Online 11 (2018), http://washburnlaw.edu/wljonline/sipes-copyright

Analyzing the Oklahoma Supreme Court’s Peculiar Expansion of Dram Shop Liability [Boyle v. ASAP Energy, Inc., 408 P.3d 183 (Okla. 2017)]

Curry P. Sexton | September 20, 2018 | Read this comment

Summary: Following a tragic collision at the hands of an intoxicated driver, the Oklahoma Supreme Court reversed the trial court and court of appeals and expanded dram shop liability within its state by holding that Fast Lane Stores, Inc. had a duty to desist from selling low-point beer to clearly intoxicated individuals. Oklahoma had never enforced this duty upon vendors selling to adult individuals for off-premises use.

Preferred Citation: Curry P. Sexton, Analyzing the Oklahoma Supreme Court’s Peculiar Expansion of Dram Shop Liability, 58 Washburn L.J. Online 1 (2018), http://washburnlaw.edu/wljonline/sexton-dramshopliability

Short URL for this page:
http://washburnlaw.edu/wljonline

Volume 58 Cases Reviewed