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Washburn Law Journal Online

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)]

Dean Kirk | 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: Dean Kirk, 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 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 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 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 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 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 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 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 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 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 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)]

Tim 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: Tim 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)]

Haley 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: Haley 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 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 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

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Volume 58 Cases Reviewed