Sixth Circuit Review

Before 1962, the earnings of a foreign subsidiary of a U.S. corporation were generally not subject to U.S. taxation until distributed to the American parent. This structure incentivized multinationals to shift profits offshore, deferring U.S. tax obligations indefinitely and allowing untaxed earnings to accumulate and be reinvested abroad. The widespread use of this deferral strategy ultimately prompted legislative reforms to curb the erosion of the U.S. tax base. In 1962, Congress responded to growing concerns over tax deferral strategies by enacting Subpart F of the Internal Revenue Code. Under Subpart F, income earned by a controlled foreign corporation (“CFC”) from the sale of personal property qualifies as Subpart F income only if it meets the definition of foreign base company sales income (“FBCSI”). A CFC’s income is generally treated as FBCSI if it satisfies the criteria set forth either under § 954(d)(1) (the “general rule”) or § 954(d)(2) (the “branch rule”). § 954(d)(1) establishes the general framework for FBCSI by identifying four categories of related-party sales transactions. In turn, § 954(d)(2) was enacted to close a potential loophole, ensuring that controlled foreign corporations could not evade the general rule simply by channeling transactions through a branch rather than a wholly owned subsidiary. Under § 954(d)(2), two conditions must be satisfied for the branch rule to apply: (1) the CFC must be carrying on activities “through a branch or similar establishment” outside its home country; and (2) the branch arrangement must have “substantially the same effect as if such branch were a wholly owned subsidiary corporation [of the CFC] deriving such income.” In Whirlpool Financial Corporation v. Commissioner of Internal Revenue, the Sixth Circuit addressed a central issue under Subpart F: the proper scope of foreign base company sales income. Specifically, the court faced the complex task of interpreting and reconciling the relationship between § 954(d)(1) and § 954(d)(2). The majority and dissent offered sharply divergent views on how these provisions should be read and applied.

Qualified immunity is a long-standing legal doctrine in the United States that provides protection to police officers for actions taken while on duty. In a recent case, the Sixth Circuit reaffirmed the doctrine and upheld common-law rules that favor police officers, and the Circuit court awarded summary judgment to the police officer involved in an altercation. This article examines the facts of the case and analyzes case law on the issue that is not discussed in the opinion, offering an alternative analysis that would allow for the suspect’s § 1983 claim to survive summary judgment. 

Warren Buffett famously stated, “It takes 20 years to build a reputation and five minutes to ruin it.” This quote underscores the immense effort required to create a good reputation, which can be swiftly undone by a single damaging event. In the context of defamation, the stakes are even higher when reputational harm intersects with constitutional rights. The Supreme Court’s confusing historical treatment of defamation claims brought against a government entity has produced a difficult landscape for plaintiffs seeking redress in the federal courts. This Paper explores the origins and evolution of the requirements for such claims, the current circuit split on the issue, and the challenges faced by individuals suing government entities for defamation under the Due Process Clause. 

The United States has a long history of political corruption. Beginning in the 19th Century during the Industrial Revolution, political machines like Tammany Hall traded political favors for votes and bribes. Corruption continued during the 20th Century through political machines and the Watergate Scandal. This corruption has continued into modern times. Today, politicians are frequently prosecuted for explicit quid pro quo bribery. For example, New York Mayor Eric Adams was recently accused of accepting illegal bribes from foreign citizens and officials. Although explicit quid pro quo bribery is not protected by the First Amendment, political candidates make all sorts of generic pledges when campaigning to solicit campaign contributions. For example, political candidates often run on a platform of promising to repeal an unpopular law. These political candidates solicit campaign donations from their supporters based on these promises. Although these political candidates are not prosecuted for these generic pledges in practice, could they be prosecuted for these pledges? Are their pledges protected by the First Amendment? The Sixth Circuit recently grappled with this question in United States v. Sittenfeld. 

Net neutrality is the principle that companies providing Internet access should not be able to block or slow down Internet traffic to prioritize access to certain websites or Internet services. Debates over the merits of net neutrality began in the 2000s as the Internet grew in importance across the United States. However, the general idea underlying net neutrality was born in 1934, when President Franklin Roosevelt signed the Communications Act into law. Title II of the Communications Act designated telephone companies as “common carriers.” The Communications Act requires telephone companies designated as common carriers to treat all telephone calls the same way. Under the Act, common carriers are prohibited from “giv[ing] any undue or unreasonable preference or advantage to any particular person . . . or to subject any person . . . to any undue or unreasonable prejudice or disadvantage.” Proponents of  maintain that Internet service providers (ISPs) are common carriers under the Communications Act, and accordingly should be prohibited from “throttling” or blocking Internet access to certain websites in order to prioritize Internet traffic to other websites. The FCC has gone back and forth in determining whether Internet service ISPs are common carriers under the Communications Act. In 2015, the FCC introduced a rule classifying ISPs as Title II common carriers under the Communications Act and imposing net-neutrality restrictions. In 2018, the FCC changed course, finding that ISPs offered only “information service” and were not common carriers subject to net-neutrality regulation. In 2024, the FCC reverted to its 2015 determination, again finding that ISPs are common carriers under Title II because they offer “telecommunications service,” and must follow net-neutrality principles. Like the FCC’s 2015 and 2018 orders, the 2024 order was challenged in court. However, unlike the past challenges considered under Chevron, In Re MCP No. 185 presented the first challenge to the FCC’s common carrier determination, where a court would not afford deference to the FCC’s interpretation of the Communications Act.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was designed to promote “comity, finality, and federalism,” with the goal of reducing federal court involvement in state court matters. Specifically, AEDPA aimed to extricate federal courts from their “tutelary relationship” with state courts. This statute dramatically altered the federal writ of habeas corpus. The “Great Writ” of habeas corpus historically allowed federal courts to free state prisoners who had been unconstitutionally imprisoned. While AEDPA made numerous changes to this federal habeas corpus process, perhaps the most significant alteration was the way in which federal courts review legal claims that state courts have denied on the merits. One of the obstacles to relief stems from the interpretation of a brief yet pivotal clause in AEDPA’s amendments to 28 U.S.C. § 2254(d)(1). Under this provision, a federal court may grant a writ of habeas corpus only if the state court’s adjudication on the merits “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” While much has been debated regarding the meanings of “contrary to” and “unreasonable application,” one aspect that is often overlooked is what qualifies as “clearly established Federal law, as determined by the Supreme Court of the United States.” Because AEDPA mandates that clearly established law must exist for a court to grant a writ of habeas corpus, how a habeas court defines clearly established law carries significant consequences. When federal courts deny habeas relief on the basis that no clearly established law exists in a particular case, it is essential to have a consistent understanding of what constitutes clearly established law. In particular, a key question about AEDPA’s clearly established limitation is how specific must clearly established law be to support federal habeas relief. The United States Court of Appeals for the Sixth Circuit addressed this issue in a decision that significantly narrowed the definition of “clearly established” federal law, providing greater clarity on the matter. This ruling has already impacted subsequent federal habeas cases. While the narrow interpretation of what qualifies as clearly established law hampers federal review of constitutional claims to the detriment of criminal defendants, it effectively fulfills AEDPA’s primary objective. As such, AEDPA remains the primary impediment to more meaningful habeas review in federal court.

From its inception, Federal Rule of Evidence 413, which allows for evidence of sexual assaults previously committed by a defendant on trial for sexual assault, has sparked debate and faced harsh criticism from legal scholars. It conflicts with the fundamental evidentiary principle that a person “must be tried for what he did, not for who he is.” Under Rule 413, prosecutors can offer evidence of a defendant’s prior acts to show that the defendant is “the type of person” who would engage in sexual misconduct. Despite concerns about the potential for unfair prejudice against defendants, several states adopted similar legislation following Congress’s passage of Rule 413. In United States v. Harvel, the Sixth Circuit joined the conversation on the constitutionality of Rule 413. It held that evidence of the defendant’s uncharged sexual assaults could be used against him, contributing to the ongoing controversy over the rule’s impact on due process rights.

On March 2, 2023, Tennessee Governor Bill Lee signed into law the Tennessee Adult Entertainment Act (AEA). The AEA makes it a criminal offense to perform “adult cabaret entertainment” on public property or in a location where it could be viewed by a minor. While the text of the AEA does not include the word “drag,” it has been widely recognized as a “drag show ban.” This law is the first of its kind in the United States and has received national attention and scrutiny. At least 14 States have since introduced similar bills. The AEA was passed amidst a record-setting national wave of anti-LGBTQ legislation. 510 anti-LGBTQ bills were introduced in state legislatures across the country in 2023, which was more than the total number introduced nationally in the preceding five years combined. Tennessee alone introduced 26 anti LGBTQ bills in 2023—10 of which have already been passed into law. Five days before the AEA was set to go into effect, an LGBTQ theatre company in Memphis named Friends of George’s filed suit in federal court against the District Attorney of Shelby County, Tennessee to enjoin enforcement of the law. The complaint alleged that the law violated Friends of George’s First Amendment free speech rights. In June 2023, the district court ruled that the AEA was unconstitutional and enjoined the District Attorney, Steven Mulroy, from enforcement within his jurisdiction of Shelby County. Mulroy promptly appealed to the Sixth Circuit and on July 18, 2024, the court announced that it was reversing the district court’s decision. John Nalbandian’s opinion, joined by Eugene E. Siler, Jr., held that Friends of George’s lacked standing and accordingly remanded the case to be dismissed. Andre B. Mathis issued a dissenting opinion.

The Supreme Court has grappled with the legality of campaign finance restrictions over the last several decades, more specifically whether they are protected by the First Amendment. In 1972, Congress enacted the Federal Election Campaign Act (“FECA”) to regulate fundraising and spending in federal political campaigns. As amended in 1974, FECA limits the amount of money an individual or group may contribute to or spend on a political candidate. Since enactment, the Supreme Court has ruled on various matters regulating campaign expenditures. In Buckley v. Valeo, the Supreme Court ruled on the constitutionality of limitations on individual campaign contributions and expenditures, finding that there is no violation of free-speech rights for the former but not the latter. Post Buckley, the Court has addressed the problem of balancing voter’s rights to free speech through political donations against preventing an appearance of corruption. Two decisions arising from Colorado clarified FECA’s limitations on campaign finance expenditures. In Colo. Republican Fed. Campaign Comm. v. FEC (Colorado I), the Court held that a political party’s independent expenditures may not be limited as they amount to “core” political speech that the government does not deem necessary to prevent corruption. Subsequently, in Colorado II, the Court addressed how FECA applies to “coordinated” political party expenditures, or those that involve input from the candidate themselves. Applying a more deferential level of review, the Court held that these expenditures may be restricted to best prevent potential corruption. Thus, the Supreme Court made it clear that FECA’s limits on coordinated party expenditures do not violate the First Amendment. Still, there is a debate on whether the Supreme Court’s holdings are consistent with the recent developments in campaign finance regulations. The Sixth Circuit recently decided a case that provides clarity on the constitutionality of the Court’s previous decisions.

The Sentencing Guidelines help judges to determine the appropriate sentence for offenders based on the facts of the offense and other factors.  However, some of the Sentencing Guidelines are based on old data and attitudes, and have not been updated to reflect current understandings of certain offenses.  U.S v. Thomas-Mathews gave defendants the ability to object to unjust, unfair policies underlying the Sentencing Guidelines, and as long as the objections were not frivolous, the district court had to explicitly address them in its decision.  Exactly how much attention the district court had to give to a defendant’s arguments was unclear after the Thomas-Mathews decision, with the Sixth Circuit concluding that “the district court should expressly consider Thomas-Mathews’ arguments concerning the [mitigating personal] factors and his argument that a within Guidelines sentence is greater than necessary in his individual case.”  The sentencing court must offer more than a conclusory statement and there must be enough evidence in the record to show that the court considered the arguments.  However, the United States Court of Appeals for the Sixth Circuit recently decided a case that provides more clarity on how much explanation is needed.

The United States offers asylum to individuals fleeing persecution in their home countries.  For many such asylum seekers, after facing torture, violence, and abuse, their biggest specter will not be their abusers, but rather judicially-imposed paperwork requirements. In some cases, an asylum seeker’s application will be denied because the Immigration Judge (IJ) presiding over the case will determine that she was looking for certain evidence that was not presented to corroborate the persecution claims. And, in many circuits, the courts have held that the IJ is permitted to make these determinations without first giving the asylum seeker advance notice of this specific evidence or an opportunity to explain why the petitioner has not presented such evidence. The Sixth Circuit followed this trend in Gaye v. Lynch.  This approach, however, is not mandated by the law and does not result in positive policy outcomes. Gaye gives an insight into the broken asylum process in the United States. The judicial system should impose advance notice and opportunity requirements for specific evidence necessary in credibility determinations. Beyond this, this Article will explore other options for reimagining the asylum system, highlighting efficiency concerns along the way.

 In antitrust jurisprudence, the doctrine of “refusal to deal” is a pivotal area of scrutiny. This doctrine refers to situations where a company with sufficient market power or a dominant market position strategically refuses to conduct business with certain customers or competitors, and this refusal potentially leads to anti-competitive effects or otherwise harms competition. Recent in this discourse is the conduct of Live Nation Entertainment (LNE), a behemoth in the entertainment industry, whose business practices provides fertile ground for exploring the nuances of anticompetitive behavior. This article examines the interplay between ostensibly legitimate business strategies and other underlying intentions that may potentially erode the competitive process—particularly in the context of a company with significant market power like LNE.

In the windshield repair industry, partnerships between suppliers and service providers are naturally common. Such was the case with Ultra Bond, Inc. (Ultra Bond) and Safelite Solutions, LLC (Safelite). Ultra Bond supplied service providers with bonding resin, and Safelite would use similar products to fix windshields. The cracks in this relationship started forming when Safelite allegedly made representations to consumers and insurance companies alike that jeopardized Ultra Bond’s profits. Ultra Bond filed suit for damages caused by false advertising under to the Lanham Act and Safelite subsequently filed a counterclaim for misappropriation of trade secrets. While most of the parties’ claims were resolved without issue, the Sixth Circuit’s final judgment on Ultra Bond’s claim opened the door for consumers to play a larger role in false advertising suits moving forward. Such a ruling may have an impact on advertising practices across the Circuit’s jurisdiction.

There is a growing labor movement in the United States in recent years, ranging from industries like auto-making to acting. A historic United Auto Workers strike just culminated in a victory for auto workers at General Motors and other automakers, resulting in double-digit pay increases for employees. A tentative deal was reached October 30, 2023, ending the longest U.S. auto strike in twenty-five years. There is a coalition of unions at Kaiser Permanente striking, with 75,000 workers walking out in the largest U.S. health care strike in history. 160,000 actors, the members of SAG-AFTRA, are striking. TV and film production, meanwhile, is paused while negotiations are unfolding over companies’ access to the likeness of actors, pay increases, and uses of certain technologies. The United States is seeing this push for workers’ rights, but a recent Sixth Circuit decision has bucked the trend and limited the power of workers’ collective action, widening a circuit split on the issue. In Clark v. A&L Homecare and Training Center, LLC, the Sixth Circuit rejected previous frameworks used for the Fair Labor Standards Act collective action “certification” approach and implemented a stricter standard for adding plaintiffs to actions under the FLSA, which will ultimately limit plaintiff employees’ power of collective action.

The principle of equality under the law stands as a cornerstone of our democracy and is deeply embedded in our nation’s history. Over time, the quest for equality has taken many forms, but recently the issue of affirmative action has generated much discourse, debate, and legal complexity. Affirmative action, as a policy aimed at addressing historical and systemic inequalities, seeks to level the playing field in education and the workplace by providing opportunities to those who have long been marginalized. For decades, it has been the subject of intense scrutiny, and its implementation has sparked impassioned discussions about the delicate balance between remedying past injustices and promoting true meritocracy. This article examines the evolving landscape in affirmative action and advocates for political safeguards as mechanisms for upholding and protecting the structural integrity of beneficial legislation for minority students.

There has been a surge in Labor activity across the United States, with the recent success of the SAG-AFTRA and WAG strikes, and the subsequent striking of the United Auto Workers (UAW). More strikes are on the way, while others have been avoided with new collective bargaining agreements. As a result of this rise in labor disputes, many jurisdictions are reevaluating past rules to keep up with the rise in Labor & Employment litigation. One legal test that has come under scrutiny in recent years is the Lusardi test, wherein the courts used a 2-step confirmation to join “similarly situated” plaintiffs regarding an action under the Fair Labor Standards Act (FLSA). Recently, the Fifth Circuit abandoned the Lusardi test, requiring district courts to take a more comprehensive approach to determine the viability of new plaintiffs, rather than the minimal “conditional certification” required by Lusardi. This year, the Sixth Circuit addressed this same question in Clark v. A&L Homecare & Training Center, finding a compromise between the stringent ruling of the Fifth Circuit and the lenient Lusardi test. While the decision may imply a boon for companies and a blow to Labor, both sides of the issue are happy with the outcome for now.

When there is a known problem disproportionately affecting people of color and Congress fails to act, do courts have the power to ameliorate it? For example, since the 1980s, there has been a puzzling disparity between the Guidelines’ treatment of powdered cocaine and crack cocaine. Despite a bipartisan recognition that this disparity undermines fairness in the justice system, it has not been eliminated from the Sentencing Guidelines. A recent case from the United States Court of Appeals for the Sixth Circuit opens the door for another way that the disparity can be lessened: district courts using their discretion in sentencing.

The otherwise unremarkable incident of a neighbor’s garden shed catching on fire in the middle of the night is what set the following series of unfortunate events in motion. This series of events ultimately resulted in the Sixth Circuit, albeit by a narrow margin, further clarifying and strengthening protections against unlawful police conduct in general and unreasonable searches and seizures in particular. The court’s decision in United States v. Waide takes an important step in balancing the competing societal interests of combatting crime and protecting individual rights to privacy and freedom from police harassment

After the Norfolk Southern train derailment in East Palestine, Ohio, many citizens are rightfully concerned about how the state and federal government could allow such dangerous chemicals to be transported on such unsafe infrastructure with so few safeguards in a populated area. Sierra Club v. EPA demonstrates how lobbying efforts by some corporations contribute to environmental deregulation across Republican- and Democrat-led administrations and how such efforts strive to deny citizens a voice when pollution threatens to hurt their health or livelihood.

When a pre-trial criminal defendant dies in government custody, what must a plaintiff show for a claim of deliberate indifference to the detainee’s serious medical needs? The Sixth Circuit recently answered this question, stating that the plaintiff must show that that prison officials acted “deliberately” and “recklessly” in the face of an “unjustifiably high risk of harm that is either known or so obvious that it should be known.”

“Hopelessly confused,” “inherently unpredictable,” and “byzantine” are just a few of the descriptors used to characterize the Supreme Court’s Dormant Commerce Clause jurisprudence. The Supreme Court itself has observed that the doctrine has been subject to “very considerable judicial oscillation.” It is no surprise that the finer details of the doctrine are unclear, have changed with the passage of time, and, consequently, are confusing to lower courts trying to apply it.

When a country is faced with a global pandemic that has the potential to kill millions of Americans, close businesses, and force students to transform their kitchen tables into a remote version of a classroom, the ability to quickly strategize and mobilize resources to combat the deadly virus is essential. Who gets to make these critical decisions regarding the health and safety of the American people is a question of the utmost importance.

The Fifth Amendment’s privilege against self-incrimination has long been considered a bedrock principle of the American judicial system. Without the privilege against self-incrimination, the American judicial system would be an “inquisitorial,” rather than an “accusatorial,” system of prosecution. However, often the privilege against self-incrimination is fundamentally at odds with the greater purposes of trials—fact-finding, truth seeking, and the swift delivery of justice.

You are the owner of a small shop and mill in El Salvador. The MS-13 gang begins calling your store, demanding payment in exchange for not killing your family. You pay in the hopes of being left alone. A few weeks later, while running errands with a co-worker, you are kidnapped by armed men who threaten to kill you for entering their territory. Miraculously, your co-worker’s cousin is in the gang, and a phone call to the cousin leads them to spare your life. MS-13 is not done with you yet, though...

In Satire VI, published in the early second century, Roman author Juvenal famously asked, “[Q]uis custodiet ipsos custodes?” (“Who watches the watchmen?”). By asking this question, Juvenal opined on the inherent difficulty of enforcing moral behavior when those tasked with enforcing moral behavior are themselves corruptible. Nineteen centuries later, Juvenal’s concern about how to hold “the watchmen accountable is still as relevant today as it was in ancient Rome as United States v. Wallace demonstrates...

Does a social media page managed by a government official constitute a public forum? Can a government official engage in viewpoint discrimination by blocking a constituent from a social media page or by deleting a constituent’s posts? When does a government official’s social media activity constitute state action? A decade ago, when the likes of Facebook, Twitter, and Instagram were still nascent, these would have been purely intellectual questions...

The Agriculture Improvement Act of 2018 (also known as the 2018 Farm Bill), which narrowed the definition of “marijuana” to exclude hemp, exposed Americans to a variety of new substances and acronyms with ongoing consequences. Seemingly overnight, compounds found within the hemp plant that are not delta-9 THC (such as CBD, CBG, CBN, delta-8, delta-10, and THCV) became ubiquitous...

On May 4, 2018, University of Toledo (“UT”) undergraduate Jaycee Wamer contacted a University faculty member to report inappropriate sexual advances from her instructor, Eric Tyger. The faculty member, along with Wamer, submitted a complaint to UT’s Office of Title IX and Compliance. Wamer alleged that two days prior, Tyger placed his arm around her and rested it on her chest while playing with her hair when she was working on her final project in his class. Tyger next placed his hand on Wamer’s thigh and leaned in to ask what kind of perfume...

It reads like something out of a paperback spy thriller. Song Guo Zheng, a prominent research scientist and professor from The Ohio State University, was arrested in May 2020 at an airport in Anchorage, Alaska as he prepared to board a flight to China, carrying in his luggage three cell phones, two laptop computers, several USB drives, bars of silver, and expired Chinese passports belonging to his family. Zheng’s arrest and subsequent guilty plea were the result of an FBI investigation into his ties to the Chinese government...

On a cold February morning in 2017, Ashtabula County deputy sheriff Matthew Johns gunned down a bipolar and schizophrenic man, Vincent Palma. Minutes earlier, Palma grabbed a TV remote from his stepsister and broke it. Palma’s stepmother called 911 and asked that Vincent be removed from her house. The 911 dispatcher informed Johns that Palma was mentally ill and “unwanted” at his family’s house.

The Affordable Care Act (ACA) has faced no shortage of controversy since it was enacted in 2010, and it is still subject to near-constant challenges and questions of interpretation and applicability more than a decade on. In January 2022, the Sixth Circuit in Tomei v. Parkwest Medical Center addressed another question of interpretation raised by a hospital’s motion to dismiss as time-barred a patient’s claim under the ACA’s non‑discrimination provision. Finding that the default...

The vaccine mandate’s long journey through the judiciary has exposed a system where important legal conclusions are left to the luck of the draw. After the Fifth Circuit issued a nationwide stay, an actual lottery sent the vaccine mandate to the Sixth Circuit where the favorable composition of a three-judge panel resulted in the mandate’s reinstatement. Although the Sixth Circuit’s reinstatement appeared to be a monumental win...

The Sixth Circuit’s deceptively simple opinion in the protracted legal battle between Ford and its former Kuwaiti auto dealer, Arabian Motors Group, connects their dispute to an ongoing circuit split regarding the Federal Arbitration Act. The Court’s overzealous judicial minimalism produced an opinion that provides little meaningful guidance to district courts and insufficiently rebukes strong textual counterarguments against its interpretation. We begin with some background...

On October 1, 2017, Steven Paddock unleashed a hail of bullets on approximately 22,000 outdoor concertgoers from his room on the 32nd floor of Las Vegas’s Mandalay Bay Resort and Casino, resulting in the deadliest mass shooting in modern American history. In Paddock’s hotel room, police recovered twenty-two semi-automatic rifles, fourteen of which were outfitted with bump stock attachments. In response to public outcry, bills were quickly introduced...

The Sixth Circuit’s recent decision, Santo’s Italian Café LLC v. Acuity Insurance Company, continues the federal appellate trend of denying business interruption insurance claims related to the coronavirus pandemic. This September, the Sixth Circuit upheld that the government suspension of in person-dining due to the coronavirus pandemic did not cause “direct physical loss of or damage to property” and thus was not covered...

At the beginning of the 2021 school year, Western Michigan University (WMU) instituted a policy requiring student-athletes to be vaccinated against COVID‑19, and sixteen student-athletes requested religious exemptions to this requirement, which the university denied. Barred from participation in team activities, these student-athletes sued WMU in federal court for allegedly violating their rights under the First Amendment. The case reached the Sixth Circuit...