American Journal of Trial Advocacy

Photo Credit: https://www.cnn.com/interactive/2022/politics/us-redistricting/north-carolina-redistricting-map/

Authored By: John M. Dickinson 

Senior Associate Editor, American Journal of Trial Advocacy

          Racism, politics, reproductive rights, riots, police brutality, and protests have plagued our newsreels for years. It seemed to get worse in 2020 when the whole world paused for what seemed like an eternity. People taking to the streets in protest. An election. A Pandemic. As we come off the tumultuous wave of covid restrictions, and just pandemic life, we strive and seek normalcy. But what is normal anymore? The world cannot go through a global pandemic as large and far-reaching as covid and not feel the effects. 2020 marked a hard year for many, and while we are still feeling those effects, the residents of North Carolina feel them differently. 

            You see, every ten years the United States government conducts a census.^[1] The most recent of which took place during that crazy year of 2020.^[2] The census plays a vital role in our government structure, as it not only accounts for people’s demographic, birth rates, death rates and other statistical data, it is determinative in congressional redistricting efforts and is instrumental in “determin[ing] the distribution of U.S. House seats across states.”^[3] In an action relegated to the state courts of North Carolina under^[4], voters challenged the republican led legislature’s attempt to pass a partisan gerrymandering case.^[5] These voters, upset with the map as drawn, saw the actions of their republican legislature to be a violation of the North Carolina State Constitution’s free election clause.^[6] The Supreme Court of North Carolina said what many were thinking, that the redistricting plans were “egregious and intentional partisan gerrymanders” enacted with the sole purpose of giving Republican voters “a greater voice . . . than to any others.”^[7]

            The legislature ultimately filed an emergency appeal that was denied, but the Supreme Court of the United States has agreed to hear the case, and has just heard oral arguments.^[8]  During the oral arguments, the parties argued over whether there is any truth to or viability of the so-called Independent State Legislature theory.^[9] This theory, which has gained traction over the last few years, would allow state legislatures more control over their electoral maps, and to the greatest degree allow for voter suppression laws to resurface.^[10] It is commonly understood and accepted that the United States Constitution delegates the power to administer federal elections to the states,^[11] but there is debate as to “how much power is delegated and to which state actors exactly.”^[12] Proponents of the theory argue that the states have been given “exclusive and near-absolute power to regulate federal elections.”^[13]

While the supreme court has yet to adopt the position held by the proponents of the independent state legislature theory, it is a terrifying thought that it may one day be incorporated into the law. Our system has already disenfranchised so many people. Many believe that their vote will not matter in the outcomes of elections, and many have lost their right to vote. Should this theory be adopted, then those who already felt voiceless will be rendered so. In a time when people’s reproductive rights have been largely left unprotected, when people face the injustice of police brutality, and when so many have already lost their right to vote, the thought of one party seizing control is utterly terrifying. 

2020 was a tough year for many; loved ones were lost and jobs were lost. It resulted in an inflated struggling economy. But it seems that those who weathered that storm must do so again. Clear skies may be ahead, but so far the 2020s have been challenging in so many ways, and likely in ways that have yet to be realized.  

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^[1] Decennial Census, United States Census Bureau (Aug. 4, 2022), https://www.census.gov/programs-surveys/censuses.html#:~:text=It%20is%20mandated%20by%20Article,federal%20funds%20to%20local%20communities.

^[2]2020 Census, United States Census Bureau (Nov. 29, 2022), https://www.census.gov/programs-surveys/decennial-census/decade/2020/2020-census-main.html.

^[3]Apportionment and Redistricting Following the 2020 Census, Congressional Research Service (Sep. 29, 2021) https://crsreports.congress.gov/product/pdf/IN/IN11360#:~:text=The%20census%2C%20apportionment%2C%20and%20congressional,as%20apportionment%20(or%20reapportionment).

^[4] See Rucho v. Common Cause, 139 S. Ct. 2484, 2500 (2019) (“Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal court”). 

^[5] Harper v. Hall, 380 N.C. 317, 868 S.E.2d 499, 508 (2022); Moore v. Harper, 142 S. Ct. 1089 (2022). 

^[6] N.C. Const. Art. I, § 10; Harper, 868 S.E.2d at 509 (2022) (“[a]ll elections shall be free” means that every vote must count equally. N.C. Const. art. I, § 10”).

^[7] Harper, 868 S.E.2d at 510 (2022). 

^[8]Transcript of oral Arguments at 70, Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21-1271). 

^[9] Transcript of oral Arguments at 70, Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21-1271).

^[10] Ethan Herenstein, The ‘Independent State Legislature Theory,’ Explained, Brennan Center for Justice https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained, (June 30, 2022).

^[11] US Const. Art. I, § 4, Cl 1.

^[12] Ethan Herenstein, The ‘Independent State Legislature Theory,’ Explained, Brennan Center for Justice https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained, (June 30, 2022). 

^[13] Id. 

Photo Credit: https://www.ncsl.org/research/labor-and-employment/americans-with-disabilities-act-celebrating-30-years.aspx

Authored by: W. Webster Brown

Senior Associate Editor, American Journal of Trial Advocacy

            Americans with Disabilities Act (ADA) is a civil rights law signed by President George H.W. Bush on July 26, 1990.^[i] Title III of the ADA designates certain businesses as “public accommodations.” This designation requires that these businesses must eliminate barriers that impede access to their goods and services by persons with disabilities.^[ii]Public accommodations such as hotels must ensure that guests who are blind, deaf-blind, or visually impaired have an equal opportunity to participate in and benefit from all of the goods and services provided by that hotel. Hotels can provide “Access” to disabled customers by a variety of means, including making reasonable modifications in policies and procedures to accommodate individuals with disabilities, removing architectural or structural communication barriers (such as conventional signage which cannot be read by persons who are blind or visually impaired and replacing them with signs that have braille) where it is readily achievable to do so, or providing auxiliary aids or services (such as reading a hotel bill to a guest who is blind) if it is not an undue burden and does not fundamentally alter the nature of the goods and services offered.^[iii] Additionally, hotels are required to identify accessible features of their properties on their website and online reservation system.^[iv] This includes a description of the hotel and hotel room physically accessible features on the hotel’s website.^[v]

            A recent case in the First Circuit discussed the issue of whether “website testers” who have no intention of staying at the hotel would nonetheless have standing to bring suit against the hotel for violating the ADA requirement of making information about the hotel’s accessibility available on any reservation portal to those with disabilities.^[vi] In Laufer, Deborah Laufer, a disabled woman, brough suit against Acheson Hotels, LLC, who owns and operates the Coast Village Inn and Cottages in a small town on Maine’s southern coast.^[vii] Laufer is a self-proclaimed ADA “tester” and advocate for disabled persons and has filed hundreds of other ADA-related suits in federal courts from coast to coast.^[viii] Laufer alleges that when she first visited Acheson’s website to make a reservation at the Coat Village Inn, she found that it didn’t identify accessible rooms, didn’t provide an option for booking an accessible room, and didn’t give her sufficient information to determine whether the rooms and features of the Inn were accessible to her.^[ix] Additionally, Laufer says she faced the same lack of information when she visited the Inn’s reservation service through thirteen other third-party websites, including Expedia.com, Hotels.com, and Booking.com.^[x] However, Acheson argues that Laufer had no real intention of booking a room at its Inn, and therefore, Laufer lacks Article III standing to bring her suit, and the court accordingly lacks subject-matter jurisdiction over the case.^[xi]

            In order to have “standing,” the plaintiff must suffer an injury under the law. The First Circuit noted that it is crucial to understand that refusing information to someone who has a legal right to that information can be considered an injury under the law.^[xii] The First Circuit also emphasized that it is the legal right to the information that matters, not what the user intends to do with the information.^[xiii] Additionally, the court pointed to The Department of Justice’s “Reservation Rule,” which ensures that people with disabilities can “independently decide whether a hotel or guest room meets his or her accessibility needs.” This rule also says that accessibility information is needed to make sure people with disabilities can reserve hotel rooms in the same way as people who do not need accessible guest rooms.^[xiv] The Court said Ms. Laufer’s “injury” was her feelings of frustration, humiliation, and being treated as a second-class citizen. She suffered because of the lack of accessibility information on Acheson’s website.^[xv]

            The First Circuit believed that the lack of information on room accessibility on the hotel’s reservation website doesdiscriminate against a person with a disability. The Court believed it was Ms. Laufer’s legal right to have accessibility information to know what accommodations were available at Acheson’s hotel. Therefore, Deborah Laufer had “standing” to bring an action against Acheson.

            This decision is also worth noting because it furthers the split amongst circuit courts on whether website testers like Laufer have standing to bring ADA suits. The First Circuit’s decision joins the Eleventh Circuit^[xvi] in saying that a website testers, who has no immediate plans to use a business, has standing to sue for a site’s alleged violations of the Americans with Disabilities Act. However, the Second Circuit^[xvii], Fifth Circuit^[xviii], and Tenth Circuit^[xix] have all ruled that these website testers do not have standing to allege violations of the Americans with Disabilities Act.

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^[i]  ADA@30: The Americans with Disabilities Act 1990-2020, https://www.eeoc.gov/ada30-americans-disabilities-act-1990-2020#:~:text=Signed%20into%20law%20in%201990,across%20community%20life%2C%20including%20employment. (last visited Dec. 9, 2022).

^[ii] Id. 

^[iii] Id.

^[iv] ADA Requires Hotels To Describe Accessibility Features On Website, https://ada.jmbm.com/ada-requires-hotels-to-describe-accessibility-features-on-website/. (last visited Dec. 9, 2022). 

^[v] Id.

^[vi] See Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022).

^[vii] Id. at 263.

^[viii] Id. at 265.

^[ix] Id. at 263-64.

^[x] Id. at 264.

^[xi] Id. at 265.

^[xii] Id. at 270.

^[xiii] Id. at 270. 

^[xiv] Id. at 265. 

^[xv] Id. at 274-75.

^[xvi] See Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022)

^[xvii] See Harty v. W. Point Realty, Inc., 28 F.4th 435 (2d Cir. 2022).

^[xviii] See Laufer v. Mann Hosp., LLC., 996 F.3d 269 (5th Cir. 2021).

^[xix] See Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022).

Photo Credit: https://www.usaswimming.org/news/2021/12/10/new-categories-of-individuals-required-to-be-non-athlete-members

Authored by: Mary Beth Duckett

Senior Associate Editor, American Journal of Trial Advocacy

          For decades, young swimmers’ lives have been ruined by coaches’ use of sexual abuse, yet USA Swimming was reluctant to stop these horrific events from occurring.^[1]  In the 80s, two-time Olympian, Mitchel Ivy; youth coach, Andrew King; and former national team director, Everett Uchiyama assaulted several minor women.^[2]  The coaches engaged in disgusting behavior throughout their years of coaching the victims.  Ivy impregnated one of his swimmers at age seventeen, causing her to have an abortion before the 1984 Olympic Trials.^[3]  Uchiyama started abusing one of the victims in the 90s, and this victim believes other coaches knew what was happening, but did nothing to stop it.^[4]  Furthermore, King’s victim stated the abuse started when she was eleven years old, and could have easily been prevented.^[5]  The women eventually filed suit, alleging that USA Swimming officials were aware of the abuse of these coaches, but failed to address the problem or take any action to protect the women.^[6]  Although all three coaches have received lifetime bans from coaching, Ivy and Uchiyama never faced criminal charges.^[7]  King, on the other hand, was “sentenced to 40 years in prison after pleading no contest to 20 child molestation charges.”^[8]

            Swimming coaches Ivy, King, and Uchiyama are not the only ones who got away with sexual abuse for so long.  Scott McFarland, a California swim coach, also engaged in predatory behaviors, causing Sarah Ehekircher a lifetime of suffering.^[9]  As a junior in high school, Ehekircher was left with no family, and started living with her coach, McFarland.^[10]  McFarland first started emotionally abusing Ehekircher by weighing her before she ate, and forcing her to ride a stationary bike for two hours after her grueling swim practices.^[11]  Not long after the emotional abuse began, McFarland raped Ehekircher at a swim meet.^[12]  The physical abuse then started to spiral, and Ehekircher eventually had two abortions.^[13]  She explained that the reason she took so long to report McFarland was because she was scared and had no one else to support her.^[14]  These types of sexual abuse cases occur at the amateur level all the way up to the Olympic level.  For example, Philip Mark Walker, former head coach of Excel Aquatics out of Nashville, TN, was suspended from USA Swimming for sexually abusing two minors.^[15]  Further, Ariana Kukors, a former U.S. Olympian, publicly stated “that her longtime coach Sean Hutchison sexually abused her for nearly a decade.”^[16]

            These heartbreaking stories beg the questions of why USA Swimming stood idly by and did nothing, and how did the organization get away with this?  First, the organization had largely a financial focus.^[17]  To emphasis, the head of USA Swimming, Chuck Wieglus, denied in a 2010 deposition “that protecting the safety of young swimmers . . . against sexual abuse was USA Swimming’s top goal.”^[18]  Additionally, USA Swimming prioritized protecting its brand and sponsorships, so the organization dealt with the sexual abuse allegations through public relations firms and lobbying groups instead of facing them head on.^[19]  Because the organization was only concerned about its legal liability, it did not take any action to legitimately prohibit the culture of abuse in swimming.^[20]  Furthermore, the American Swimming Coaches Association, an affiliate of USA Swimming, has not helped develop new policies on sexual misconduct because it consistently opposed these reform efforts.^[21]  Another reason abuse has continued within the sport is because it can often take years to obtain a lifetime ban from the sport.^[22]  In one case, a Massachusetts swim coach was arrested for rape and child abuse, but was not banned from coaching until twelve years after the conviction.^[23]

            Although the sport of swimming has silently endured a culture of sexual abuse over the last several decades, in 2018 the USA Gymnastics scandals prompted the federal grand jury investigation of USA Swimming.^[24]  One focus of the investigation was the organization’s “insurance structure known as the ‘wasting’ provision.”^[25]  The “wasting” provision occurred because although the U.S. Olympic Committee required USA Swimming to include specific abuse coverage, “[t]hat coverage did not extend to the 2,000 member clubs across the country.”^[26]  Those excluded club teams were instead given an underwritten coverage for abuse claims capped at $100,000 per claim.^[27]  The wasting clause was essentially a deductible.^[28]  Because every dollar spent defending a claim was reduced from the coverage, some victim-claimants subject to the wasting clause would not collect any damages, and their club team would be left with no money to defend itself.^[29]  Therefore, this insurance coverage restricted these club teams to only two claims per year.^[30]  In turn, this system protected USA Swimming as an organization, because it was the coaches themselves that were held liable and likely forced into bankruptcy as a result.^[31]  Recently, however, survivors have overcome this system and successfully sought relief by piercing USA Swimming’s financial veil to reach its general liability coverage.^[32]

            Furthermore, after the USA Gymnastics scandal made national headlines in 2018, President Donald Trump signed a bill into law “that aims to protect amateur athletes from sexual abuse by regulating the governing bodies of amateur athletics, like USA Swimming.”^[33]  The bill requires officials and coaches to report signs of abuse to authorities within 24-hours, but it “extends the statute of limitations to up to 10 years after a person realizes they were abused.”^[34]   It also protects athletes who are minors by prohibiting them from being alone with someone who is not their parent.^[35]

 It is evident that change has occurred within the past five years, as more survivors have stood up to claim that abuse is not a necessary part of swimming, a sport that teaches children and young adults discipline, time-management, and an ultimate desire to succeed.^[36]  Hopefully, in time as our legal system and communities work to eliminate abuse, people will remember what the sport of swimming is truly about. 

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^[1] Scott Reid, Congress Investigating USA Swimming’s Handling of Sex Abuse Cases, Los Angeles Daily News (Jan. 26, 2018, 12:01 p.m.), https://www.dailynews.com/2018/01/26/congress-investigating-usa-swimmings-handling-of-sex-abuse-cases/. 

^[2] Rick Maese & Emily Giambalvo, Six Former Athletes Accuse USA Swimming of Failing to Act on Sex Abuse Allegations, The Washington Post (Jun. 10, 2020), https://www.washingtonpost.com/sports/2020/06/10/six-former-athletes-accuse-usa-swimming-failing-act-sex-abuse-allegations/.

^[3] Associated Press, Six Women File Lawsuits Against USA Swimming Over Alleged Sexual Abuse by Coaches, USA Today (Jun. 10, 2020, 10:18 p.m.), https://www.usatoday.com/story/sports/olympics/2020/06/10/usa-swimming-women-sue-alleged-sex-abuse/5339685002/.

^[4] Shanna McCarriston, Six Women Sue USA Swimming for Allegedly Failing to Act on Sexual Abuse Allegations, CBS Sports (Dec. 22, 2021, 11:51 a.m.), https://www.cbssports.com/olympics/news/six-women-sue-usa-swimming-for-allegedly-failing-to-act-on-sexual-abuse-allegations/.

^[5] Id.

^[6] Associated Press, supra note 3. 

^[7] Maese & Giambalvo, supra note 2. 

^[8] Associated Press, supra note 3.

^[9] Sarah Ehekircher, My Swim Coach Raped Me When I Was 17. USA Swimming Made it Disappear, The Guardian (Aug. 25, 2020),  https://www.theguardian.com/sport/2020/aug/25/my-swim-coach-raped-me-when-i-was-17-usa-swimming-made-it-disappear.

^[10] Id.

^[11] Id.

^[12] Id.

^[13] Id.

^[14] Id.

^[15] Walker v. USA Swimming, No. 3:16-CV-0825, 2018 WL 397154, at *1-2 (M.D. Tenn. Jan. 12, 2018).

^[16] Alanna Vagianos, Explosive Report Says USA Swimming Covered Up Hundreds of Sexual Abuse Cases, Huff Post (Feb. 19, 2018, 1:40 p.m.), https://www.huffpost.com/entry/usa-swimming-sexual-abuse_n_5a8ad81fe4b004fc3194c4b2.

^[17] Gabe Fernandez, USA Swimming Ignored Claims of Sexual Abuse for Decades, Report Indicates, The Sporting News (Feb. 18, 2018), https://www.sportingnews.com/us/athletics/news/usa-swimming-sexual-abuse-scandal-olympics-chuck-wielgus-larry-nassar/11cipqwymcv3a1kr02i8ip6s3c.

^[18] Id.

^[19] Id.; see also AB Staff, USA Swimming Ignored Culture of Sexual Abuse, Athletic Business (Feb. 17, 2018),  https://www.athleticbusiness.com/operations/legal/news/15153283/usa-swimming-ignored-culture-of-sexual-abuse (“Protecting that brand hasn’t come cheap. USA Swimming spent $7.45 million on legal fees between 2006 and 2016, according to the organization’s financial records, nearly 10 times the amount USA Track & Field paid in legal fees during that same period.”).

^[20] Fernandez, supra note 17.

^[21] Id.

^[22] Id.

^[23] Id.

^[24] Irvin Muchnick, Troubled Waters: USA Swimming’s Struggle to Cover Up Its Sexual Abuse Crisis, Salon (Jun. 26, 2021, 8:00 a.m.), https://www.salon.com/2021/06/26/troubled-waters-usa-swimmings-struggle-to-cover-up-its-sexual-abuse-crisis/.

^[25] Id.

^[26] Id.

^[27] Id.

^[28] Id.

^[29] Id.

^[30] Id.

^[31] Id.

^[32] Id.

^[33] Vagianos, supra note 16.

^[34] Id.

^[35] Id.

^[36] Jessica A. Gold, We Should Have Seen The USA Swimming Sexual Abuse Allegations Coming, Glamour (Feb. 27, 2018), https://www.glamour.com/story/we-should-have-seen-the-usa-swimming-allegations-coming.

Photo Credit: https://www.kmbc.com/article/kansas-governor-vetoes-bill-to-lower-concealed-carry-age/36214096

Authored by: Jackson C. Burrow

Articles Editor, American Journal of Trial Advocacy

Background 

          On November 3, 2021, the Supreme Court heard oral arguments regarding a case with massive implications for Second Amendment rights.^[i]  Specifically, the right to conceal carry a firearm and what limitations states might have in restricting said right.^[ii]  This issue comes from a restrictive law in New York which requires anyone wishing to possess a concealed carry permit to show “proper cause”.^[iii]  Many commentators refer to states such as New York who give complete discretion to state officials to determine who qualifies for a permit on a case by case basis as “may issue” states, while “shall issue” states are required to issue permits to anyone who meets the minimum statutory requirements.^[iv]  While New York’s law is at the heart of this case, a handful of other states with similar laws would be affected by a decision in favor of the challengers.^[v]

            The challengers of New York’s “may issue” statute are the New York State Rifle & Pistol Association (NYSRPA) as well as Robert Nash and Brandon Koch.^[vi]  Nash and Koch were both denied concealed carry permits under the law.^[vii]  They challenged the law and the Court of Appeals for the 2nd Circuit affirmed the District Court for the Northern District of New York’s ruling to throw out the case.^[viii]  The 2nd Circuit relied on their prior decision in Kachalsky v. County of Westchester which held that New York’s “proper cause” requirement did not violate the Second Amendment.^[ix]  The Court in Kachalsky analyzed the rule under District of Columbia v. Heller^[x] and found that it was not applicable to New York’s right to restrict the ability to carry handguns in public but rather only in the home.^[xi]  They went on to apply heightened scrutiny and found that the law was substantially related to the state’s interest in protecting public safety.^[xii]  After the 2nd Circuit’s decision, the challengers appealed to the Supreme Court which led to the Court granting certiorari.^[xiii]  

NYSRPA’s Argument

          The challenger’s claim that the law is unconstitutional for two main reasons.  First, they claim that “may issue” laws are antithetical to the idea of the Second Amendment and use the Court’s prior holding in Heller to support their claim.^[xiv]  Specifically, they argue that based on the decision in Heller, the right to carry a firearm outside of the home is a constitutional right and that this right “is not some extraordinary action that requires an extraordinary demonstration of need” as required by the statute.^[xv]  Next, they give a historical analysis.  NYSRPA began with the fact that not only did the early American colonies allow gun possession, but some actually required it.^[xvi]  They went on to give deference to the historical analysis in Heller^[xvii], specifically the view of Second Amendment rights post-reconstruction which saw those rights as being critical to freed slaves ability to protect themselves.^[xviii]  The challengers stated that the historical analysis given in Heller established that the Second Amendment “protects an individual right to carry firearms outside the home for purposes of self-defense.”^[xix]

Supreme Court’s Issues with NYSRPA’s Argument

            Most of the justices who had issues with NYSRPA’s argument were on the benches liberal side. To begin, Justice Sotomayor challenged the historical perspective of the challengers.^[xx] She began at our founding and onto present time and highlighted the multiple instances in which states had broad discretion to impose different gun restrictions as they saw fit.^[xxi]  She also seemed to be persuaded by the 2nd Circuit’s opinion in Kachalsky that claimed Heller was limited to prohibitions inside of the home rather than those outside.^[xxii]  Also, justices from both sides of the bench questioned what limits could be imposed to concealed carry, especially in sensitive areas such as “courthouses, schools, and airports.”^[xxiii]

New York’s Argument

          The state of New York argued that while they do agree there is a right to carry a firearm outside of the home for purposes of self-defense, the right is not absolute.^[xxiv]  The state began by giving their own historical analysis, stating that “from the founding era through the 20th Century, at least 20 states have at one time or another either prohibited all carrying of handguns in populous areas or limited it to those with good cause.”^[xxv]  They went on to argue that New York is simply following the tradition of states regulating public carry and that other states also have “may issue” requirements similar to theirs.^[xxvi]  They claimed that it also made more sense to have lower acceptance rates for permit applications to citizens in high density areas because of the availability of law enforcement and the high risk of injury if concealed carry were allowed in such areas.^[xxvii]

Supreme Court’s Issues with New York’s Argument

            The court seemed to have more issues with New York’s argument, specifically the conservative justices.^[xxviii]  Chief Justice Roberts stated that Heller held that the basis for the Second Amendment was the right to self-defense and that by giving preference in permits to those in rural areas rather than high-density ones, New York limited citizens ability to defend themselves in areas where violence or crime is more likely to occur.^[xxix]  New York responded that there was a higher risk of gun violence in higher density areas if large amounts of people carried firearms, the Court found this argument unconvincing.^[xxx]  Justice Alito argued that it made no sense for the State to limit law-abiding citizens from exercising their Second Amendment right when there were high numbers of illegal firearms on the streets of New York.^[xxxi]  Justice Kavanaugh doubted the constitutionality of the State giving an individual officer the discretion to subjectively deny an application for a concealed carry permit at will.^[xxxii]  Finally, Chief Justice Roberts questioned why a citizen should be required to prove they should be able to exercise a clear constitutional right.^[xxxiii]

Broader Implications

            Depending on the holding in this case, “may issue” laws across the country will either be held a permissible exercise of states’ rights or an unconstitutional restriction on Second Amendment freedoms.  If the latter is held true, the eight states as well as the District of Columbia which have “may issue” laws currently in place would be required to transition to “shall issue” systems.^[xxxiv]  Regardless, this decision will have massive implications for Second Amendment rights in a way that our country hasn’t seen since Heller. 

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^[i] N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843 (U.S. argued Nov. 3, 2021) (Ballotpedia). 

^[ii] Amy Howe, In Major Second Amendment Case, Court will Review Limits on Carrying a Concealed Gun in Public, ScotusBlog, Oct. 27, 2021, https://www.scotusblog.com/2021/10/in-major-second-amendment-case-court-will-review-limits-on-carrying-a-concealed-gun-in-public/

^[iii] NY Penal Law § 400.00(2)(f) (“A license for a pistol or revolver, shall be issued to . . . [H]ave and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.”). 

^[iv] May-Issue vs. Shall-Issue Concealed Carry States, U.S. Concealed Carry Ass’n, April 20, 2019, https://www.usconcealedcarry.com/blog/may-issue-vs-shall-issue-concealed-carry-states/. 

^[v]  Guns in Public: Concealed Carry, Giffords Law Center, https://giffords.org/lawcenter/gun-laws/policy-areas/guns-in-public/concealed-carry/ (last visited Feb. 4, 2022) (“[E]ight states and the District of Columbia have may issue laws.”). 

^[vi] Howe, supra note 2. 

^[vii] Id. 

^[viii] N.Y. State Rifle & Pistol Ass’n v. Beach, 19-156-cv, (2d Cir. 2020).

^[ix] 701 F.3d 81 (2d Cir. 2012). 

^[x] 554 U.S. 750 (2008).

^[xi] Id. at 94. 

^[xii] Id. at 98. 

^[xiii] Howe, supra note 2.

^[xiv] 554 U.S. 750 (2008).

^[xv] Bruen, supra note 1, at 5.

^[xvi] Howe, supra note 2. 

^[xvii] Bruen, supra note 1, at 4. 

^[xviii] Howe, supra note 2. 

^[xix] Bruen, supra note 1, at 4. 

^[xx] Amy Howe, Majority of Court Appears Dubious of New York Gun-Control Law, but Justices Mull Narrow Ruling, ScotusBlog, Nov. 3, 2021, https://www.scotusblog.com/2021/11/majority-of-court-appears-dubious-of-new-york-gun-control-law-but-justices-mull-narrow-ruling/

^[xxi] Id. 

^[xxii] Bruen, supra note 1, at 19. 

^[xxiii] Howe, supra note 20. 

^[xxiv] Howe, supra note 2. 

^[xxv] Bruen, supra note 1, at 59. 

^[xxvi] Id. at note 8-17. 

^[xxvii] Howe, supra note 2.  

^[xxviii] Howe, supra note 20. 

^[xxix] Bruen, supra note 1, at 62. 

^[xxx] Id. at 65-66. 

^[xxxi] Id. at 67-69. 

^[xxxii] Id. at 72. 

^[xxxiii] Id. at 94. 

^[xxxiv] The Ball is in the Supreme Court – Implications of the NYSRPA v. Bruen Case, The Campaign to Keep Guns off Campus, Nov. 12, 2021, https://www.keepgunsoffcampus.org/blog/2021/11/12/the-ball-is-in-the-supreme-court-implications-of-the-nysrpa-vs-bruen-case/. 

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Authored by: Charles Jackson Parker

Editor in Chief, American Journal of Trial Advocacy

          For the first time in the state of Washington, a contractor has been sentenced to serve 45 days in jail after a trench collapse caused the death of employee Harold Felton in 2016.^[i]  The Occupational Safety and Health Administration (“OSHA”) regulates workplace safety across the nation.^[ii]  There are construction sites covering every city in the country, so OSHA rarely visits every site in the agent’s region and operates by violation tips and periodic random inspections.^[iii]  Construction sites provide for a high-risk workplace with incomplete buildings, elevated work surfaces, heavy equipment, saws, high-powered tools, and chemicals, and with these risks come the high responsibility of a contractor to monitor the site and ensure OSHA standards are being implemented and followed.^[iv]  The penalty for an OSHA violation can be a warning for a violation that does not directly affect a worker’s health and safety and for other violations penalties can increase up to $132,598.^[v]  OSHA defines a “willful violation” as “a complete disregard for the health and safety of employees.”^[vi]  There is very little talk on job sites about what happens if the unthinkable occurs, an employee is fatally injured, and a violation is found.

          In the construction industry, some projects, especially public projects, require competitive bidding to ensure the correct and fair use of tax dollars to fund the projects.^[viii]  Price alone is not the only factor that the state actors are allowed to use when picking the qualified contractor.^[ix]  The state actors or private owners will also look at the project history to ensure that the contractor has a history of successful projects and, more importantly, the safety record the company has.  A fine alone will hurt a contractor, but a willful violation could prevent the contractor from getting any work for several years. Continue reading “State v. Numrich: OSHA’s Limited Penalties Will Not Shield You from State Criminal Charges “ →

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Authored By: Sarah Hammitte 

            As we have all observed and some have experienced personally, COVID-19 impacted companies in the energy, retail, restaurant, entertainment, health care, travel, and hospitality industries on a global and national scale.  In the Spring of 2020, mandatory shutdowns devastated the bottom lines of thousands of companies due to dramatic drops in demand for their products and services.^[i]  The economic impact of COVID-19 has forced several large, distressed companies into bankruptcy, but not nearly as many as one would expect.  

            Historically, bankruptcy filings reflect the rise and fall of our nation’s economic status. Following the global financial crisis, business bankruptcy filings doubled to 60,837 in 2009 from 28,322 in 2007.^[ii]  Given that the COVID-19 global pandemic caused the American economy to virtually shut down, economists and scholars predicted a tidal wave of bankruptcies to follow.^[iii]  And they did, for a while, primarily affecting large corporate businesses. Expecting an increase in filings, Congress even enacted a new Bankruptcy Law that would ensure there would be adequate funding in the Bankruptcy Courts to cover the predicted high caseloads.^[iv]  July 2020 experienced its peak in pandemic-driven bankruptcies with a 52% increase in Commercial Chapter 11 Bankruptcies.^[v]  This spike in large corporate bankruptcies was only second behind 2009’s peak.^[vi]

            But then, just as quickly as business bankruptcy filings rose, they fell, beginning as early as October 2020.^[vii]Indeed, corporate bankruptcies fell to a historic low in 2021.^[viii]  Despite COVID-19’s worsening conditions, businesses across the United States were surviving the economic crisis that greatly exceeded the Great Recession in years prior. What was different? 

Why Did the Tidal Wave of Bankruptcies Never Materialize? 

            Not surprisingly, the mandatory switch to remote court hearings had an impact on the decline in bankruptcy filings beginning in March 2020.^[ix]  April 2020 hit its sharpest decline for monthly filings due partly to the shift to online court proceedings.^[x] For example, complex bankruptcy cases can require over 100 attorneys to participate in a single hearing.^[xi]   

            Moreover, the majority of the businesses that contributed to the July 2020 peak in bankruptcy filings were already in financial distress, and COVID-19 merely accelerated their restructuring proceedings.^[xii]  Further, the enactment of the Coronavirus Aid, Relief, and Economic Security Act,^[xiii] (“CARES Act”) in March 2020, provided small and large businesses the relief they needed to avoid filing for bankruptcy in most cases.  The CARES Act set aside nearly $454 billion in funding programs to assist eligible businesses that were affected by COVID-19.^[xiv]  Eligible businesses had the opportunity to apply for grants including the Shuttered Venues Grant, and the Restaurant Revitalization Fund, totaling to nearly $44.8 billion in relief funds.^[xv]  However, as the economy has recovered since 2020, these grants and loans are no longer offered to businesses that may still be experiencing hardships from the pandemic to this day. Further, as of May 2021, the Payment Protection Program, (“PPP”), offered loans to businesses to help keep their workforce employed during the COVID-19 crisis.^[xvi]  All of these federal assistance programs allowed businesses that would otherwise file for bankruptcy due to the pandemic’s economic impact, to avoid filing, by increasing their debt limit.^[xvii]  

            As a result of the various federal funding programs that were provided to stabilize the economy by allowing businesses to survive the harsh economic effects of COVID-19, the decision to file for Chapter 11 bankruptcy became increasingly difficult. To confirm a Chapter 11 Reorganization plan, courts must consider, among other things, the “feasibility” of the proposed plan.^[xviii]  The Bankruptcy Code defines feasibility to mean that the confirmation of the plan “is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor” unless specifically proposed in the plan.^[xix]  This feasibility requirement requires adequate assurance of a business’s future performance.  In an uncertain economy and COVID-19’s seemingly unpredictable future, the feasibility that a company who chooses to file Chapter 11 Bankruptcy in 2021 or 2022 will not need further financial reorganization is nearly impossible to estimate.  In other words, the government assistance provided by the CARES Act has made it difficult for businesses to predict future performance, to determine which businesses will strive, or accurately place a value on their assets.^[xx]  

            Furthermore, the CARES Act mandated debt forbearance, which allowed lenders to offer businesses that were suffering from the effects of the pandemic to suspend their payments rather than force them into default or bankruptcy proceedings.^[xxi]  Additionally, the strong stock market provided an alternative to filing for bankruptcy amid the pandemic.  Many large, distressed businesses were able to avoid bankruptcy by selling stock, thus allowing them to raise capital without having to restructure their business or borrow money.^[xxii]

Will the Bankruptcy Tidal Wave Ever Materialize? 

            Although the tidal wave of bankruptcies has yet to materialize, some experts believe that the U.S. Bankruptcy Courts will see a rise in filings in the second quarter for 2022.^[xxiii]  The stimulus payments are coming to a halt as the economy rebounds, more Americans are choosing to be vaccinated, and businesses are opening back up to the public.  The decline in bankruptcy filings over the last two years were tied to temporary federally funded programs, generous lenders, a strong stock market, and historic-low interest rates.  As businesses run out of stimulus money, with little to no federal assistance in sight, and as borrowing costs are expected to rise, those once generous lenders may turn into eager creditors.  It is important to note that certain creditors made such allowances while businesses were in covid-related distress. The question becomes, once the economy fully rebounds and COVID-19 slowly stops to spread, will these creditors still be so generous. Further, the interest rates are expected to rise by the end of 2022, which could push businesses into bankruptcy court. Bankruptcy professionals fear that looking forward, as inflation continues to rise and monetary policies issued by the Federal Reserve begin to tighten back up, large businesses may begin to become financially distressed.^[xxiv]

Why Does it Matter? 

            The same concerns that scholars had when predicting a massive wave of bankruptcies as a result of the pandemic remain true today.  Bankruptcy Courts may run the risk of being overwhelmed. Historically, the bankruptcy system functions differently when they are congested causing them to be less effective.^[xxv]  Congested courts present special challenges to smaller business by increasing their likelihood of liquidation.^[xxvi]  Although larger businesses are much more likely to successfully reorganize, congested courts makes the process unduly longer and inevitably more costly.^[xxvii]   Precautions should be made when deciding to file for bankruptcy, especially Chapter 11, which primarily depends on obtaining financing to repay the debts.^[xxviii]

---

^[i]See, e.g., Allie Schwartz et al., Trends in Large Corporate Bankruptcy and Financial Distress, Cornerstone Research, 4 (Aug. 24, 2021),  https://www.cornerstone.com/wp-content/uploads/2021/12/Trends-in-Large-Corporate-Bankruptcy-and-Financial-Distress-Midyear-2021-Update.pdf (“The Retail Trade industry had 31 bankruptcies in 2020, as the COVID-19 pandemic created a difficult environment for traditional retailers that faced lockdowns and reduced demands for in-store shopping.”). 

^[ii]See Annual Business and Non-business Filings by Year (1980-2020), American bankruptcy institute, https://abi-org.s3.amazonaws.com/Newsroom/Bankruptcy_Statistics/Total-Business-Consumer1980-Present.pdf (last visited Feb. 5, 2022). 

^[iii]See, e.g., Mary Williams Walsh, A Tidal Wave of Bankruptcies is Coming, N.Y. Times (Aug. 3, 2020),  https://www.nytimes.com/2020/06/18/business/corporate-bankruptcy-coronavirus.html (expecting the number of large bankruptcies to challenge the record set in 2009).

^[iv]See H.R. 8895, 116th Cong. (2021).  

^[v]See Alex Wolf, Commercial Bankruptcies Jump by Significant 52% Over Last Year, Bloomberg Law (Aug. 5, 2020), https://news.bloomberglaw.com/bankruptcy-law/commercial-bankruptcies-jump-by-significant-52-over-last-year (stating that 642 businesses filed Chapter 11 in July 2020, compared to only 423 in July 2019). 

^[vi]Schwartz, supra note 1, at 1. 

^[vii]See id. at 4 (“Starting in October 2020, monthly bankruptcy filings returned to levels more consistent with historical averages.”). 

^[viii]See Michael O’Connor & Chris Hudgens, US Corporate Bankruptcies Reach New Low in 2021, S&P Global (Nov. 8, 2021), https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/us-corporate-bankruptcies-reach-new-low-in-2021-67459322.

^[ix]See Bankruptcy Filings Fall 11.8 Percent For Year Ending June 30, U.S. Courts (Jul. 29, 2020), https://www.uscourts.gov/news/2020/07/29/bankruptcy-filings-fall-118-percent-year-ending-june-30.

^[x]Juli Collins-Thompson et al., Review of U.S. Business Bankruptcies During the COVID-19 Pandemic, Fed. Rsrv. Bank of Boston, 4 (Nov. 19, 2021),  file:///Users/sarahhammitte/Downloads/sra-note-2105%20(1).pdf.

^[xi]See 2020 Year-End Report on the Federal Judiciary, Supreme Ct. of U.S., 2,    https://www.supremecourt.gov/publicinfo/year-end/2020year-endreport.pdf.

^[xii]Alex Wolf, Corporate Bankruptcy Wave Turns to Dust, Defying Expectations, Bloomberg Law (Jan. 5, 2022), https://news.bloomberglaw.com/bankruptcy-law/corporate-bankruptcy-wave-turns-to-dust-defying-expectations.

^[xiii]H.R. 748, 116th Cong. (2020). 

^[xiv]Steven M. Szymanski, CARES Act Programs for Business Too Large for the Paycheck Protection Program,  Nat’l. L. Rev. (Apr. 2, 2020), https://www.natlawreview.com/article/cares-act-programs-businesses-too-large-paycheck-protection-program (“The CARES Act provides that 4003(b)(4) Programs will apply to any business organized in the United States that has significant operations in the United States and the majority of its employees based in the United States and that has not received adequate economic relief in the form of loans or loan guarantees under another provision of the CARES Act.”). 

^[xv]See generally COVID-19 Relief Options, U.S. Small Bus. Admin., (Date Last Reviewed: February 2022),  https://www.sba.gov/funding-programs/loans/covid-19-relief-options.

^[xvi]See generally Paycheck Protection Program, U.S. Small Bus. Admin., (Date Last Reviewed: February 2022), https://www.sba.gov/funding-programs/loans/covid-19-relief-options/paycheck-protection-program

^[xvii]COVID-19 Bankruptcy Relief Extension Act Extends Higher Debt Limit for Small Business Bankruptcies, Hirschler(Apr. 8, 2021), https://www.hirschlerlaw.com/newsroom-publications-1684#:~:text=The%20CARES%20Act%20increased%20the,extended%20through%20March%2027%2C%202022 (“The CARES Act increased the debt limit under the SBRA to $7,500,000, initially through March 27, 2021. The higher debt limit has now been extended through March 27, 2022.”).

^[xviii]See 11 U.S.C. § 1129(a)(11).

^[xix]Id.  

^[xx]Alex Wolf, Corporate Bankruptcies Delated Until Virus Carnage Sorted Out, Bloomberg Law (May 11, 2020), https://news.bloomberglaw.com/bankruptcy-law/corporate-bankruptcies-delayed-until-virus-carnage-sorted-out?context=article-related (“In the present state of stay-at-home orders, sickened workforces, and a dropoff in global economic activity, there’s not much for even the riskiest investors to feel good about and not much certainty to build out a major restructuring. Things have to get better for people to see what companies need to file for bankruptcy,” attorney Monique Almy of Crowell & Moring LLP said.”).

^[xxi]Id. 

^[xxii]David Skeel, Pandemic Hope for Chapter 11 Financing, Yale L.J. Forum, 321 (Nov. 10, 2021), https://www.yalelawjournal.org/pdf/F7.SkeelFinalDraftWEB_3s3482o2.pdf.

^[xxiii]See Charlsy Panzino & Chris Hudgins, U.S. Corporate Bankruptcy Pace Likely to Speed Up in 2022, S&P Global(Oct. 11, 2021), https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/us-corporate-bankruptcy-pace-likely-to-speed-up-in-2022-67011237.

^[xxiv]Id.

^[xxv]David Skeel, Bankruptcy and the Coronavirus, Economic Studies at Brookings, 6 (April 2020),  https://www.brookings.edu/wp-content/uploads/2020/04/ES-4.21.2020-DSkeel-2.pdf.

^[xxvi]David Skeel, Bankruptcy and the Coronavirus: Part II, Economic Studies at Brookings, 3 (July 2020),   https://www.brookings.edu/wp-content/uploads/2020/07/ES-6.6.20-Skeel-1.pdf.

^[xxvii]Id.

^[xxviii]Skeel, supra note 25, at 4.

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Authored By: Morgan Vardaman

Student Materials Editor, American Journal of Trial Advocacy

          COVID-19, a novel coronavirus that causes severe acute respiratory syndrome, has swept the world since its recognition in December 2019.[i]  With cases climbing to more than seventy-two (72) million in the United States and a death toll of over eight hundred seventy (870) thousand and climbing, it is unlikely that any person in the United States has not been affected by this virus in some way.[ii]  While nearly all facets of life have been affected by COVID, the Americans with Disabilities Act (“ADA”) has been impacted to an extreme.  Many aspects of the ADA have been altered following the onset of the virus, namely employment. Continue reading “Covid-19 and the Americans with Disabilities Act: The Effects and Adaptations in Employment” →

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Authored By: Gabrielle Humber

Member, American Journal of Trial Advocacy

          The Fourth Amendment gives the people the right “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.”^[i]  Further, warrants to search these places and objects must be supported by probable cause.^[ii]  As such, warrantless searches of one’s home are considered to be “presumptively unreasonable” and police officers are subject to a “greater burden” if they “enter a home . . . without consent.”^[iii]  The rationale underlying these protections is that the home is within an individual’s zone of privacy, where one can retreat and be free from unreasonable governmental intrusion. Continue reading “Caniglia v. Strom: Updating the “Community Caretaking” Exception to the Fourth Amendment Warrant Requirement” →

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Authored By: Forrest Hyde

Executive Editor, American Journal of Trial Advocacy

          Recently, a circuit split has been building up between the United States Courts of Appeal for the Second and Ninth Circuits, the two leading copyright appeals courts.[1]  The disagreement centers around what constitutes a “display” for purposes of copyright infringement under the Copyright Act of 1976 (“the Act”) where copyrighted images are shown (or “embedded”) on third-party websites without the copyright owner’s permission.[2]  A split on this issue, discussed in more detail below, could create a “rash of new litigation, and prompt newsrooms and media companies to re-examine their embed policies,” and would also raise a question “central to governing copyright on the internet.”[3]  But first, a quick mention of the Act’s provisions and the controversial test in issue. Continue reading “Embedded Media and Copyright Infringement- Recent Southern District of New York Ruling Further Builds the Circuit Split on This Question” →