Sixth Circuit Research Articles

Successive but Not Successful: Does the AEDPA Allow Federal Prisoners to Reassert Previously Presented Claims for Habeas Relief?

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unequivocally bars state prisoners from reasserting previously presented claims for habeas relief. Currently, the circuits are embroiled in a disagreement regarding whether the AEDPA also bars federal prisoners in the same way, and federal prisoners’ potentially viable claims for habeas relief hang in the balance. Prior to the Ninth Circuit’s decision in Jones v. United States, six circuits agreed that the AEDPA does bar federal prisoners’ previously asserted habeas claims, but the Sixth Circuit alone disagreed. Now, the Jones decision aligns the Ninth Circuit with the Sixth Circuit’s position. Through an in-depth analysis of Jones, this Note argues that Jones was rightly decided and that the AEDPA should not be construed to bar federal prisoners’ previously presented habeas claims. Since both textual analysis and sound public policy compel this conclusion, this Note proposes that the Supreme Court should adopt Jones’s holding to end this circuit split.

Youth Rights in Postsecondary Transition: Gibson v. Forest Hills (2016)

A transition-aged youth with an individualized education program has the right to free, appropriate public education that includes postsecondary transition planning and services. The documented transition supports need to meet both procedural and substantive requirements. While many court cases have included transition components, few have been decided at the appellate court level. In Gibson v. Forest Hills (2016), Chloe Gibson, a transition-aged youth with intellectual and developmental disabilities, was provided inadequate postsecondary transition planning and services. According to the U.S. Court of Appeals for the Sixth Circuit, Chole’s right to a free, appropriate public education was violated due to procedural errors related to inviting her to individualized education program (IEP) meetings, conducting age-appropriate transition assessments, and including programming leading to supported competitive employment in a community setting. This decision supports the federal requirements of including a transition-aged student’s strengths, interests, preferences, and needs when planning their life after high school.

Taking New Steps Against Digital Sampling: The Sixth Circuit Lays Down the Law on Digital Sampling, But Will it Really Improve Industry Practices?

Taking New Steps Against Digital Sampling: The Sixth Circuit Lays Down the Law on Digital Sampling, But Will it Really Improve Industry Practices?

Social Media and State Action: Click "Like" and Follow This Two-Part Test

The right to free speech was deemed so important by the Framers of the Bill of Rights that they enshrined this right in the Free Speech Clause of the First Amendment. There was, however, no way they could have envisioned how communication would evolve to what it is now in the twenty-first century and the related issues that would arise. The threshold question to all alleged First Amendment violations is whether the action at issue is state action. As means of communication progressively move more online to social media, this question has become more difficult to answer. Many government officials now use social media to espouse their policies and interact with their constituents, which has been beneficial in many senses. But this has also led to many contentious interactions between government officials and private citizens. These contentious interactions have resulted in courts grappling with the question of whether certain actions on social media, such as blocking a person from interacting with an account, constitute state action.
 Most of the federal courts of appeals use a purpose and appearance test to answer this question. This test considers the purpose and appearance of the social media account at issue by weighing several factors to determine whether a government official’s activity while using that account is state or private action. The Sixth Circuit, however, has opted to perform the state-official test to determine whether action taken on social media is state action. This test asks whether certain social media activity is part of an official’s actual or apparent duties or could not have happened in the same way without the authority of their office. This has led to a circuit split as to how to best handle this issue.
 This Comment examines the federal courts of appeals cases utilizing these tests and proposes a solution to this circuit split by creating a two-part test using both the state-official and the purpose and appearance tests. The first part of this two-part test calls for the use of the state-official test. The stateofficial test is a bright-line test that, if satisfied, would find state action without the need to consider the purpose and appearance of a social media account. If no state action is found, however, then the second part of this two-part test uses the more flexible, multi-factor purpose and appearance test to determine if there is state action. By combining these separate tests into a two-part test, in this order, it both takes advantage of their inherent strengths and mitigates their weaknesses. Social media has established itself as a major tool for private citizens and government officials to interact with each other to an extent previously not possible. It is imperative, therefore, that United States courts be prepared to uniformly handle this issue that has occurred numerous times and will continue to occur as long as social media exists.

The Short Unhappy Life of the Negotiation Class

The Short Unhappy Life of the Negotiation Class

Brief for Amicus Curiae The Kentucky Commission on Human Rights, Nelson v. Louisville Metro (Sixth Circuit Court of Appeals, Nos 22-5884/22-5912)

Brief for Amicus Curiae The Kentucky Commission on Human Rights, Nelson v. Louisville Metro (Sixth Circuit Court of Appeals, Nos 22-5884/22-5912)

When individual rights collide: Know how to prepare, respond

The Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky, and Tennessee) recently allowed a faculty member's First Amendment lawsuit to move forward after the university disciplined him for violating Title IX by failing to follow the institution's gender pronoun policy. Meriwether v. Hartop et al., 992 F.3d 492 (6th Cir. 2021).

Novel Meminductor Emulators Using Operational Amplifiers and their Applications in Chaotic Oscillators

This paper presents six different meminductor emulator circuits based on operational amplifiers. Five circuits of meminductor emulators have been proposed using two operational amplifiers, one memristor, three resistors and one capacitor, whereas the sixth circuit uses two operational amplifiers, two memristors, one resistor and two capacitors. All circuits of the proposed meminductor emulators are very simple over most of the realizations of meminductor emulators in the literature. The behaviors of meminductor emulators are satisfactory over a wide range of frequencies. The proposed configurations of meminductor emulators have been simulated by the LTspice tool. The SPICE models of both operational amplifier (AD711) and memristor have been used for simulation. The workability of the proposed meminductor emulators has also been verified using the basic and well-known structure of operational amplifier. In addition, the pinched hysteresis loop obtained by the simulation results of meminductor emulator has been achieved by the experimental results as well. Chaotic oscillator has been designed using the proposed meminductor emulator to prove the worthiness of the design.

From the Bird’s Eye

Criminal sentences are rarely reversed for being too long. Of the approximately one million federal sentences imposed in the past fifteen years, appellate courts have only held about two dozen substantively unreasonable. Judges have, even in public statements, described substantive reasonableness review as “functionally nonexistent” and “a waste of time.” Against this backdrop, three decisions from the Sixth Circuit published within the last year are nothing short of remarkable. In each case, the panel concluded that the district court, despite following standard processes and procedures, had nonetheless imposed a substantively unreasonable sentence. This Article examines these cases in detail, to glean lessons for scholars and practitioners. I argue that, in each decision, the Sixth Circuit took a bird’s eye perspective to the issues at hand, reaching a common-sense decision based on aggregative sentencing data, case law, and the defendant’s prior criminal history. These factors, I further argue, provide a model for other appellate courts who hope to engage in more searching substantive reasonableness review. I also acknowledge some limits to the Sixth Circuit’s approach. In each of these three cases, the appellate court reined in district courts for imposing above-guideline sentences. The decisions, however, say little about what—if any—role an appellate court should play in mitigating harsh sentences that are within (or even below) the guidelines. Reform of such sentences may require stakeholders to look elsewhere, including either legislative reform or appointment of a more diverse set of district judges.

You Can’t Always Get What You Want: Appealing CMS Enforcement Actions

You Can’t Always Get What You Want: Appealing CMS Enforcement Actions

FEELING LIKE A MOTHERLESS CHILD: WHEN YOUR VULNERABILITY MAKES YOU A VICTIM, YOU MAY BECOME VOICELESS TO SEX TRAFFICKING.

When a 16-year-old is addicted to drugs and engages in prostitution for money to purchase drugs, who is the predator and who is the prey? Is the minor a willing participant? Should it matter if he or she previously engaged in prostitution? This Article looks at United States v. Aundre Davis, a case in the United States Court of Appeals for the Sixth Circuit. In Davis, the United States District Court for the Northern District of Ohio at Toledo applied an undue-influence enhancement – a sentencing increase when a defendant unduly influences a minor to engage in prohibited sexual conduct – to Davis’s sentence. The appellate court concluded that the district court did not provide an adequate explanation for applying the sentencing enhancement and remanded the case to the district court for resentencing. This Article explores how other circuit courts have interpreted the undue-influence enhancement and also discusses the unforeseen or unintended consequences on the victim when an appellate court remands a human trafficking case to the trial court. When victims find their voices and decide to talk about their ordeals, they may not be sure what to say or who can help them. After escaping a trafficking situation, victims should not feel re-traumatized by the criminal justice system. Therefore, the author recommends specialized training for actors in the criminal justice system to learn about the dynamics of human trafficking and how to acknowledge the significant pain and trauma victims have experienced. That trauma affects a victim’s psychological, emotional, and physical well-being as well as their court testimony. Without trauma-informed practices, law enforcement, judges, attorneys, and social workers cannot successfully create partnerships with community-based organizations and mental health professionals, protect victims, prosecute traffickers, and prevent trafficking.

Police Requirements to Perform a Mental Health Seizure

In Rudolph v. Babinec , 939 F.3d 742 (6th Cir. 2019), the Sixth Circuit Court of Appeals affirmed a district court's denial of summary judgment to law enforcement officers on the basis of qualified immunity after they were sued by the plaintiff who alleged that her Fourth Amendment rights had been

Jail Physician Liability in Detainee's Death by Suicide

In Baker-Schneider v. Napoleon , 769 F. App'x 189 (6th Cir. 2019), the U.S. Court of Appeals for the Sixth Circuit in an unpublished opinion reversed the district court's decision to deny qualified immunity to a jail physician, Rubab Huq, M.D., who evaluated a pretrial detainee prior to his dying by

Amicus Brief In Supreme Court Docket 19-930 (CIC Services v. IRS) On Anti-Injunction Act History and Application

CIC Services did not want to give the IRS certain information required by Notice 2016-66. It and another entity instead sued in federal district court, asking the court to: (1) declare Notice 2016-66 invalid and (2) permanently enjoin the Service from enforcing the Notice. The district court dismissed the suit, finding it barred by the Anti-Injunction Act (AIA), 26 U.S.C. §7421(a), and the Declaratory Judgment Act (DJA), 28 U.S.C. §2201(a). A split Sixth Circuit panel affirmed. A closely divided Sixth Circuit denied a petition for rehearing en banc. The Supreme Court granted cert. CIC Services and its amici argue for a radical departure from the Supreme Court's settled reading of the AIA. They say the AIA’ bars only those suits brought by persons against whom the government is proceeding directly to assess or collect a tax. They say this suit seeks only to restrain the collection of information and therefore an injunction here would not restraint the assessment or collection of any tax. This brief explains why CIC Services' argument is wrong. The argument misreads history, ignores the causal relationship between information reporting and assessment, and misappropriates language in the Tax Injunction Act (TIA) to the AIA. This brief argues that the AIA bars suits that threaten the system of assessments and collections and not just suits involving a particular dispute about a particular tax. The brief supports its argument by: (1) analyzing all the earliest cases to interpret the AIA; (2) analyzing the impact of historical changes in tax administration; and (3) analyzing the crucial role of information reporting in the current system of assessment.

The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently

A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men. This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen's judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.

Processing a Right to Education

I advocate for recognizing a constitutional right to education. I draw inspiration from John Hart Ely’s political process theory but take it a step deeper. While I embrace clearing the channels of access to the political process, I reject Ely’s premise that we should treat our current process as presumptively fair. A superficial focus on access does nothing to help those who have not been taught how to swim in those channels’ currents. But effective public education does. Thus, I contend that a constitutional right to education naturally extends the political process theory because it represents a practical realization of our democratic values. This paper proceeds in four parts. First, I briefly detail how our nation’s education systems fail many children and the consequent harm this inflicts on our democratic processes. Second, I describe the Sixth Circuit’s decision in Gary B. v. Whitmer, which recognized a fundamental right to literacy education. Next, I defend the decision on political process grounds. Finally, I analyze a fundamental right to education against a theory of populist constitutionalism.

Deemed Approval Clause Dooms Facade Easement Charitable Deduction

Observing that “[f]orever is a really long time — no less so in tax law” and “forever really means forever,” the US Court of Appeals for the Sixth Circuit, by opinion dated April 14, ruled that a donor of a facade easement is not entitled to a charitable contribution deduction for its gift because the contribution agreement accords the donee a 45‐day window in which to prevent certain changes to the facade or airspace (Hoffman Properties II, LP v. Commissioner).

Challenge to the Death Penalty

In Shoop v. Hill , 139 S. Ct. 504 (2019 ) , the U.S. Supreme Court vacated and remanded a Sixth Circuit appellate court's decision to grant habeas relief for a respondent who argued that his death penalty sentence was contrary to clearly established federal law due to his intellectual disability. In

Direct Democracy Denied: The Right to Initiative in a Pandemic

Putting aside the Supreme Court’s controversial decision in Republican National Committee v. Democratic National Committee, the case over extending the date for receipt of absentee ballots in the April 2020 Wisconsin primary, courts so far have done a fairly good job protecting voting rights during the COVID-19 pandemic. From easing candidate and party signature requirements for ballot access, to temporarily eliminating witness or notarization requirements for casting an absentee ballot, to interpreting the excuse provisions in for-cause absentee ballot laws to cover voters without coronavirus immunity who fear voting in person, courts have recognized that election laws that ordinarily do not burden voters can become burdensome in a pandemic. Courts have interpreted such laws to avoid disenfranchisement, and sometimes temporarily suspended or altered them. That welcome thumb on the scale favoring voters, however, has not extended uniformly to claims for the easing of signature gathering rules by ballot measure proponents. In four cases I examine, courts have rejected the demands of initiative proponents to ease requirements to qualify a measure for the ballot, such as allowing electronic instead of “wet” (in person) signatures, and easing witness requirements, total number of signatures required, or geographic requirements for signature collection. In just one case, Thompson v. DeWine, a federal district court ordered Ohio to alter its procedures for qualifying proposed measures for the ballot, including allowing the acceptance of electronic signatures. The decision, however, was put on hold by the Sixth Circuit in a stay order that was very dismissive of the rights of direct democracy and that portends bad things to come. In this short analysis, I argue that some of the reasons courts and states have offered against easing ballot measure qualification requirements during a pandemic are weak, and that the district court in Thompson was right to see that normal ballot qualification rules can impose a severe First Amendment burden on direct democracy proponents under pandemic conditions. The problem, as illustrated by the Thompson case, is fashioning appropriate relief consistent with principles of federalism and separation of powers. It is difficult to craft a remedy would put the plaintiffs in the position they would have been in had there been no pandemic and that does not usurp the state’s general role in enforcing its election rules or undermine sound principles of election administration and fairness.

Transparency as Justice: The Ethics of Public Attorneys and Judicial Seals

In 2004, the State of West Virginia settled a lawsuit against Purdue Pharma LP accusing the company of pushing pills by understating the addictive effects of OxyContin. As a result, the judge in the case sealed his ruling denying Purdue’s motion to dismiss. The seal was not vacated until the United States was enveloped by the opioid crisis twelve years and 245,000 overdose deaths later. The pattern nearly repeated itself in 2019 until the United State Court of Appeals for the Sixth Circuit vacated a judicial seal in In re National Prescription Opiate Litigation, allowing press access to information in discovery and in the pleadings. Such seals in mass products liability cases stretch back decades, but they are getting renewed attention based on the Sixth Circuit’s pattern tightening requirements for such seals in Shane Group, Inc. v. Blue Cross Blue Shield of Michigan. This article addresses the duties of public sector attorneys in situations involving judicial seals of information relevant to the public health and safety. Although the Supreme Court has held that seals may only issue after the trial court balances the public interest in disclosure against the private interest in confidentiality, courts typically grant an uncontested motion to seal without performing it. Because the public interest is in favor of such disclosures — particularly where the government is a party — government attorneys have a duty to ensure the public release of such data. Thus, reform is needed through the imposition of legal or ethical requirements that ensure this result and, by extension, require public servants to protect the public.