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Articles 1 - 26 of 26
Full-Text Articles in Law
Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas
Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas
Akron Law Faculty Publications
The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …
The Continued Vitality Of Prophylactic Relief, Tracy A. Thomas
The Continued Vitality Of Prophylactic Relief, Tracy A. Thomas
Akron Law Faculty Publications
The categorization of a separate type of “prophylactic” injunction and its continued prevalence in the courts provides a framework by which to evaluate the legitimacy of broad injunctions. Such broad injunctive relief has been conventionally theorized as simple judicial activism, and has been attacked accordingly. The theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. Rather than striking down all broad injunctive relief as the dominant discourse demands, the concept of the prophylactic injunction provides language through which jurists and lawyers can navigate the real issues of …
The Continued Vitality Of Prophylactic Relief, Tracy A. Thomas
The Continued Vitality Of Prophylactic Relief, Tracy A. Thomas
Tracy A. Thomas
The categorization of a separate type of “prophylactic” injunction and its continued prevalence in the courts provides a framework by which to evaluate the legitimacy of broad injunctions. Such broad injunctive relief has been conventionally theorized as simple judicial activism, and has been attacked accordingly. The theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. Rather than striking down all broad injunctive relief as the dominant discourse demands, the concept of the prophylactic injunction provides language through which jurists and lawyers can navigate the real issues of …
Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas
Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas
Tracy A. Thomas
The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …
Ohio Trust Code: The Joint Committee's Proposal For Its First Amendment, Alan Newman
Ohio Trust Code: The Joint Committee's Proposal For Its First Amendment, Alan Newman
Akron Law Faculty Publications
This article discusses the changes included in the proposed amendment. Generally, the Joint Committee decided to include in the amendment straightforward changes as to which there was a broad consensus. The discussion below addresses the proposals included in the amendment in the order of the sections of the Revised Code that are affected.
Copyright Acknowledgment: This material is reprinted from the Probate Law Journal of Ohio with permission of Thomson Reuters. Copyright permission is on file.
Ohio Trust Code: The Joint Committee's Proposal For Its First Amendment, Alan Newman
Ohio Trust Code: The Joint Committee's Proposal For Its First Amendment, Alan Newman
Alan Newman
This article discusses the changes included in the proposed amendment. Generally, the Joint Committee decided to include in the amendment straightforward changes as to which there was a broad consensus. The discussion below addresses the proposals included in the amendment in the order of the sections of the Revised Code that are affected.
Copyright Acknowledgment: This material is reprinted from the Probate Law Journal of Ohio with permission of Thomson Reuters. Copyright permission is on file.
Transnational Litigation In The United States: The Emergence Of A New Field Of Law (Reviewing Gary B. Born & Peter B. Rutledge, International Civil Litigation In The United States (2007))., Samuel P. Baumgartner
Transnational Litigation In The United States: The Emergence Of A New Field Of Law (Reviewing Gary B. Born & Peter B. Rutledge, International Civil Litigation In The United States (2007))., Samuel P. Baumgartner
Akron Law Faculty Publications
In this essay, I review the fourth edition of Gary Born's International Litigation in United States Courts (ICL), now co-authored by Peter Rutledge. This is a well-established case book/treatise that has influenced the thinking of many lawyers, both in the United States and abroad. In reviewing ICL, I explore some of the recent changes in cross-border litigation in the United States reflected in the fourth edition. Those changes demonstrate that transnational litigation has become a separate field of law in the sense that its independent study has acquired considerable practical importance. But there is more. The changes I review also …
Expanding Preferential Treatment Under The Record Rental Amendment Beyond The Music Industry, Ryan G. Vacca
Expanding Preferential Treatment Under The Record Rental Amendment Beyond The Music Industry, Ryan G. Vacca
Akron Law Faculty Publications
This Article explores the development of copyright law’s first sale doctrine and the Record Rental Amendment (RRA) in light of the Sixth Circuit’s interpretation of the RRA in Brilliance Audio, Inc. v. Haights Cross Communications, Inc. This Article does not take issue with the court’s conclusion, but instead uses the differing conclusions of the majority and dissent to illustrate that the RRA exception is in need of Congressional clarification. This Article also examines whether the Record Rental Amendment should be amended to include audiobooks and other non-musical works, concluding that they should. The author then proposes two alternative amendments to …
Who Knew? The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan G. Vacca
Who Knew? The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan G. Vacca
Akron Law Faculty Publications
Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where …
Only A Name? Trademark Royalties, Nexus, And Taxing That Which Enriches, Sheldon H. Laskin
Only A Name? Trademark Royalties, Nexus, And Taxing That Which Enriches, Sheldon H. Laskin
Akron Tax Journal
This Article asserts that the correct constitutional nexus standard for state taxation of royalty income derived from the use of trademarks and tradenames is the well-established business situs rule for taxing intangibles. Pursuant to the business situs rule, a state may, consistent with federal constitutional requirements, levy an appropriately apportioned tax on the trademark royalty income of a business that has purposefully availed itself of the benefits and opportunities of doing business in that state. That is, intellectual property is presumed to have a taxing situs at any location where it is used to realize income. A state may therefore …
Treble Damages In National Health Service Corps Contracts, Public Policy, And Hawronsky V. Commissioner, Richard C.E. Beck
Treble Damages In National Health Service Corps Contracts, Public Policy, And Hawronsky V. Commissioner, Richard C.E. Beck
Akron Tax Journal
The main thesis of this article is that Hawronsky v. Commissioner is erroneous and the deduction should be allowed because I.R.C. § 162(f) does not apply. The taxpayer did pay a "fine or similar penalty to the government," but he did not pay it "for the violation of any law," which is a necessary element of I.R.C. § 162(f). The taxpayer merely breached his NHSC contract. This crucial issue went completely unnoticed by the court and the parties. Because I.R.C. § 162(f) does not apply, the treble damages are (except for the original tax-free scholarship itself) a deductible business expense …
Repairing Facade Easements: Is This The Gift That Launched A Thousand Deductions?, Martha Jordan
Repairing Facade Easements: Is This The Gift That Launched A Thousand Deductions?, Martha Jordan
Akron Tax Journal
This article explores the impact of such a covenant on the characterization for tax purposes of expenditures to maintain the façade. In particular this article explores the following question: Given that the charitable easement holder owns a nonpossessory interest in the façade, which imposes on the charity an obligation to repair and maintain the façade and entitles it to benefit from increases in the value of the façade, is a donor's assumption of the charity's obligation to repair the façade an additional charitable contribution to the charity? If a donor gratuitously makes improvements to property owned outright by a charity, …
Crew 4 You, Inc. V. Wilkins: The Ohio Supreme Court Misapplies Statute And Precedent To Eliminate The Resale Exception To Sales Of Employment Services, Jon R. Stefanik Ii
Crew 4 You, Inc. V. Wilkins: The Ohio Supreme Court Misapplies Statute And Precedent To Eliminate The Resale Exception To Sales Of Employment Services, Jon R. Stefanik Ii
Akron Tax Journal
This Note critically examines the Ohio Supreme Court's opinion in Crew 4 You. Part II examines the tax on retail sales, the resale exception and its application to services, and the significant Ohio Supreme Court cases applying the resale exception to transactions involving services. Part III provides a synopsis of the arguments and reasoning at each stage of the appeal in Crew 4 You, including the Tax Commissioner's assessment, his Final Determination, the decision of the Ohio Board of Tax Appeals ("BTA"), and the decision of the Ohio Supreme Court. Part IV analyzes the Ohio Supreme Court's reasoning …
Rethinking The Role Of The Judicial Step Transaction Principle And A Proposal For Codification, Yoram Keinana
Rethinking The Role Of The Judicial Step Transaction Principle And A Proposal For Codification, Yoram Keinana
Akron Tax Journal
Thus, as this article will conclude, the role of the step transaction doctrine has been diminishing over the years from a primary weapon against tax shelters into an alternative test. In order to revive its role, the step transaction principle could be codified. As opposed to the controversial proposed codification of the economic substance doctrine, in my view, the codification of the step transaction principle will be more acceptable. The last part of this article sets forth a basic proposal for such codification.
This article will continue as follows. The first part discusses the fundamentals of the general principle of …
How Well Do U.S. Judgments Fare In Europe?, Samuel P. Baumgartner
How Well Do U.S. Judgments Fare In Europe?, Samuel P. Baumgartner
Akron Law Faculty Publications
Transnational cases have become a prominent part of the litigation landscape in the United States. Class actions against foreign defendants are widespread, the Alien Tort Claims Act has emerged as a mainstay of proceedings to enforce international human rights law in U.S. courts, and the globalization of the economy has led to an increase in transnational regulatory litigation. In all these cases, however, the parties need to ask themselves whether an ensuing judgment or settlement can be recognized or enforced abroad. For quite some time, the perception in the United States has been that U.S. judgments do not fare very …
Class Actions And Group Litigation In Switzerland, Samuel P. Baumgartner
Class Actions And Group Litigation In Switzerland, Samuel P. Baumgartner
Akron Law Faculty Publications
Class actions have gone global. Foreign parties are no longer a rarity in U.S. class litigation, among other developments. In addition to being named as defendants, foreigners increasingly form a significant part of the group of absent class members. U.S. courts have thus begun to consider some novel issues, including whether due process requires foreigners to be treated as an opt-in rather than an opt-out class; whether a judgment or settlement in the suit is capable of being enforced or recognized as res judicata abroad and thus whether class certification is justified in the first place; and whether a foreign …
The Religion Clauses And The “Really New” Federalism, Martin H. Belsky
The Religion Clauses And The “Really New” Federalism, Martin H. Belsky
Akron Law Faculty Publications
It had been a principle of contemporary constitutional law that once a provision of the Bill of Rights was “fully” incorporated, such as with the First Amendment, it established a constitutional minimum. A state could provide, either by constitutional or statutory provision, additional protections to its citizens, so long as this did not create a conflict with other federal law. Another principle, until recently, was that the federal government had the ability by legislation to provide additional or enhanced rights to Americans, and that these rights applied uniformly to residents of all states.
The application of these two principles?at least …
Deposit Account Financing Under Revised Article 9, Willa E. Gibson
Deposit Account Financing Under Revised Article 9, Willa E. Gibson
Akron Law Faculty Publications
No abstract provided.
Congress Has The Power To Enforce The Bill Of Rights Against The Federal Government: Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn
Akron Law Faculty Publications
The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government.
Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence …
In Defense Of The Roosevelt Court, Wilson R. Huhn
In Defense Of The Roosevelt Court, Wilson R. Huhn
Akron Law Faculty Publications
The overriding purpose of the New Deal was to create opportunities for the common person to acquire a stake in society. The Roosevelt appointees to the Supreme Court were unwilling to allow either entrenched wealth or arbitrary governmental action to interfere with that objective. They remade the Constitution, but in so doing they returned the Constitution to its original purpose – the protection of personal liberty. The Roosevelt Court laid the foundation for a jurisprudence of human rights upon which the Warren Court and subsequent Supreme Courts have continued to build.
Two justices presently serving on the Supreme Court – …
The Devil In The Details: On Intelligent Design, Racial Conspiracy Theories, And The Theology Of Whiteness, Brant T. Lee
The Devil In The Details: On Intelligent Design, Racial Conspiracy Theories, And The Theology Of Whiteness, Brant T. Lee
Akron Law Faculty Publications
It is a central problem in the great American conversation about race to explain persistent racial inequality. The dominant narrative tells us that, historically, racial inequality was caused directly and simply, by explicit and intentional racial discrimination based on unreasoning race hatred. The paradigmatic examples are slavery and segregation; the icon is Bull Connor. Together, the Civil War and the civil rights movement comprise America's delivery from this original sin. In law, this redemption is reflected in the Emancipation Proclamation and in the fulfillment of the Civil War-era constitutional amendments [FN6] through Brown v. Board of Education and the antidiscrimination …
Design Patents: An Alternative When The Low Standards Of Copyright Are Too High?, Ryan G. Vacca
Design Patents: An Alternative When The Low Standards Of Copyright Are Too High?, Ryan G. Vacca
Akron Law Faculty Publications
The standard for copyright protection is notoriously low the work must be independently created by the author and possess a minimal degree of creativity. Even with this low standard, blank forms, and other forms which do not convey information, are categorically denied copyright protection. In contrast, the standard for design patent protection is much more burdensome. Design patents protect news, original, ornamental, and non-obvious designs. Even though there is a higher standard, the Patent and Trademark Office has issued design patents for blank forms.
This article explores the blank forms doctrine in copyright law, articulated in Baker v. Selden. Later …
The Freedom To Imagine Fantasy Sports: Applying New Ideas In Copyright Law To Professional Athletes' Right Of Publicity, Ryan T. Holte
The Freedom To Imagine Fantasy Sports: Applying New Ideas In Copyright Law To Professional Athletes' Right Of Publicity, Ryan T. Holte
Prof. Ryan T. Holte
The paper deals with the creation and growth of online fantasy sports games which have resulted in a struggle between the First Amendment rights of sports fans and sports players' right of publicity. Fantasy sports websites state that they have a constitutional right to use players' names in their online programs which allow customers to build their own fantasy teams. Professional sports leagues argue that they, and the players, have spent great time and money in building the names and public images of professional athletes, and deserve to be compensated through state right of publicity laws. Currently courts are left …
The Devil In The Details: On Intelligent Design, Racial Conspiracy Theories, And The Theology Of Whiteness, Brant T. Lee
The Devil In The Details: On Intelligent Design, Racial Conspiracy Theories, And The Theology Of Whiteness, Brant T. Lee
Brant T. Lee
It is a central problem in the great American conversation about race to explain persistent racial inequality. The dominant narrative tells us that, historically, racial inequality was caused directly and simply, by explicit and intentional racial discrimination based on unreasoning race hatred. The paradigmatic examples are slavery and segregation; the icon is Bull Connor. Together, the Civil War and the civil rights movement comprise America's delivery from this original sin. In law, this redemption is reflected in the Emancipation Proclamation and in the fulfillment of the Civil War-era constitutional amendments [FN6] through Brown v. Board of Education and the antidiscrimination …
The Religion Clauses And The “Really New” Federalism, Martin H. Belsky
The Religion Clauses And The “Really New” Federalism, Martin H. Belsky
Martin H. Belsky
It had been a principle of contemporary constitutional law that once a provision of the Bill of Rights was “fully” incorporated, such as with the First Amendment, it established a constitutional minimum. A state could provide, either by constitutional or statutory provision, additional protections to its citizens, so long as this did not create a conflict with other federal law. Another principle, until recently, was that the federal government had the ability by legislation to provide additional or enhanced rights to Americans, and that these rights applied uniformly to residents of all states.
The application of these two principles?at least …
Deposit Account Financing Under Revised Article 9, Willa E. Gibson
Deposit Account Financing Under Revised Article 9, Willa E. Gibson
Willa E Gibson
No abstract provided.