Law Commons^™

Do's And Don'ts For Mediation Practice, Marjorie Corman Aaron

Faculty Articles and Other Publications

This is practical advice from mediators gleaned from years of experience and too many mistakes. It covers good and not-so-good practices in preliminary meetings and telephone conferences, joint sessions, and private caucuses.

Joseph P. Tomain: Champion Of Human Rights, Bert B. Lockwood Jr.

Faculty Articles and Other Publications

The art of building institutions is underappreciated. The average life of law school deanships is under four years. Joe Tomain devoted fifteen years to building the University of Cincinnati College of Law, and few truly appreciate the challenges he overcame and the principled leadership he demonstrated time and again.

Standing And Global Warming: Is Injury To All Injury To None?, Bradford Mank

Faculty Articles and Other Publications

Since global warming potentially affects everyone in the world, does any individual have standing to sue the U.S. EPA or other federal agencies to force them to address climate change issues? Suits addressing global warming raise difficult standing questions because some Supreme Court decisions have stated or implied that courts should not allow standing for plaintiffs who file suits alleging general injuries to the public at large because the political branches of government - Congress and the executive branch - are better equipped to resolve such issues. There is a better argument, however, for courts to recognize standing for plaintiffs …

A Scrivener's Error Or Greater Protection Of The Public: Does The Epa Have The Authority To Delist Low-Risk Sources Of Carcinogens From Section 112'S Maximum Achievable Control Technology Requirements?, Bradford Mank

Faculty Articles and Other Publications

This article will focus on the scope of the EPA's authority to delist categories and subcategories of sources, especially those emitting carcinogens.

This article concludes that the EPA's creation of a low-risk subcategory of PCWP sources is improper because the plain language of subsection 112(c)(9)(B)(i) limits the Agency's delisting authority to whole categories of carcinogenic sources. The EPA has failed to meet its heavy burden in attempting to demonstrate that Congress made a drafting error when it omitted the term "subcategory" in subsection 112(c)(9)(B)(i) for carcinogenic chemicals. The doctrine of scrivener's error is inapplicable to the plain language of subsection …

Can Administrative Regulations Interpret Rights Enforceable Under Section 1983?: Why Chevron Deference Survives Sandoval And Gonzaga, Bradford Mank

Faculty Articles and Other Publications

There is a split in the circuits regarding whether and when agency regulations may establish rights enforceable through 42 U.S.C. Section 1983. In 1987, in Wright v. City of Roanoke, the Supreme Court held that a statute and regulations interpreting the statute could create enforceable rights under Section 1983, but left unclear to what extent it had relied on the regulations alone to reach this conclusion. The District of Columbia Circuit and Sixth Circuit have held that at least some valid federal regulations may create rights enforceable through Section 1983. Concluding that only Congress by enacting a statute may create …

Bankruptcy Reform And The Financial Well-Being Of Women: How Intersectionality Matters In Money Matters, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

After eight years of heated controversy, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was signed into law by president Bush on April 20, 2005. Proponents of the Act claimed that it would cure the bankruptcy crisis and that the wealthy would no longer be allowed to abuse the system at the expense of hard-working American families. Opponents cast the legislation as a dream come true for the credit card companies, claiming that it would serve only to enrich the rich at the expense of the poorest of the poor. One of the key issues that emerged from …

Is Prosecution "Medically Appropriate"?, Douglas Mossman Md

Faculty Articles and Other Publications

Each year, U.S. courts send thousands of incompetent defendants to hospitals for treatment, where psychiatrists frequently administer psychotropic medication that can alleviate symptoms and allow the defendants to proceed with criminal adjudication. Although defendants and their attorneys usually do not object to such treatment, treatment refusals in two recent, nationally prominent cases-those of Russell Eugene Weston, Jr., the accused Capitol shooter, and Charles T. Sell, a dentist charged with filing false insurance claims-have focused legal and media attention on whether and under what conditions competence restoration can be forced on an unwilling defendant.

In its June 2003 decision in Sell …

Brokers And Advisers-What’S In A Name?, Barbara Black

Faculty Articles and Other Publications

The article addresses two recent developments - the adoption by the SEC of a rule that allows brokerage firms to market fee-based accounts without registering as investment advisers and the increase in brokerage advertising that promotes the image of the broker as a trusted family friend and financial adviser. Professor Black argues that as a result of these developments investors are likely to be misled into believing that their brokers are investment advisers, with the fiduciary obligations the law requires of them, instead of brokers, whom the law generally treats as salespersons. She proposes two recommendations: (1) that brokers should …

The Elusive Balance Between Investor Protection And Wealth Creation, Barbara Black, Jill Gross

Faculty Articles and Other Publications

The enactment of federal securities legislation in the 1930s codified the principle that investors should be shielded from securities fraud, but scholars and policymakers continue to debate the appropriate balance between protecting investors and encouraging capital formation. Congressional activity of the past decade reflects this tension. In the 1990s, Congress enacted two major pieces of legislation to restrict securities fraud class actions because of its belief that frivolous class actions were a drain on entrepreneurism. In 2002, after the EnronIW orldCom et al. corporate scandals, reflecting perhaps a sense that the earlier legislation had tipped the pendulum too far, Congress …

Going Home To Stay: A Review Of Collateral Consequences Of Conviction, Post-Incarceration Employment, And Recidivism In Ohio, Marlaina Freisthler, Mark A. Godsey

Faculty Articles and Other Publications

Currently, Ohio's legislative and administrative schemes dealing with employment are unduly punitive toward convicted felons. This article suggests an alternative approach to achieve the same legitimate purposes that the current scheme purports to serve. The first part of the article is a general discussion of collateral consequences. The second part discusses the manner in which collateral consequences can be imposed to achieve inappropriate results and describes the ABA's recent Criminal Justice Standards on collateral consequences as a method to avoid inappropriate results. The third part evaluates Ohio's efforts to return prisoners to communities following conviction and the effect that current …

Rethinking The Involuntary Confession Rule: Toward A Workable Test For Identifying Compelled Self-Incrimination, Mark A. Godsey

Faculty Articles and Other Publications

For more than a century, the Supreme Court has interpreted the Bill of Rights as prohibiting the police from obtaining involuntary confessions from suspects through the use of coercion. If asked whether this involuntary confession rule is an understandable and workable doctrine, however, a noticeable percentage of judges, prosecutors, police officers, criminal defense attorneys and law professors would answer with an unequivocal no.

Basic questions concerning voluntariness and free will - whether it exists, and if so, when it exists, etc. - have puzzled philosophers for centuries and represent one of history's Gordian knots. Not surprisingly, judges have fared no …

Critical Race Realism: Re-Claiming The Antidiscrimination Principle Through The Doctrine Of Good Faith In Contract Law, Emily Houh

Faculty Articles and Other Publications

This Article employs what it calls "critical race realism" to theorize and propose a common law antidiscrimination claim that incorporates contemporary re-conceptualizations of antidiscrimination jurisprudence and grounds itself doctrinally not in civil rights law but in the contractually implied obligation of good faith. "Critical race realism" refers in part to this Article's explicit goal, in proposing the common law claim, to re-conceive explicitly the private law doctrine of good faith as one that might assist in effecting a public law norm of equality. By employing critical race realism, this Article hopes to help revive the controversy over what constitutes the …

The Doctrine Of Good Faith In Contract Law: A (Nearly) Empty Vessel?, Emily Houh

Faculty Articles and Other Publications

Empty Vessel explores both the positive and normative questions of what the contractually implied obligation of good faith does and should require of contracting parties. The Article attempts to assess and evaluate the ways in which courts are currently employing the good faith doctrine in contract disputes, as part of a larger project whose goal is to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality. Empty Vessel identifies two dominant theoretical approaches to how to define good faith, which I refer to as the fairness …

Rethinking Reform Of Electricity Markets, Joseph P. Tomain

Faculty Articles and Other Publications

Rethinking Reform starts with a thought experiment about the complete deregulation of electricity markets. The article goes on to discuss how the traditional model of utility regulation has served its useful purpose and must be replaced. The two recommendations made in the article include the use of marginal cost pricing and an array of smart energy technologies to create a better and more efficient energy policy.

Nuclear Futures, Joseph P. Tomain

Faculty Articles and Other Publications

Nuclear Futures examines three scenarios for the future of nuclear power in light of current thinking regarding energy policy more broadly. To help situate the alternative policies, the article also provides a rough cost benefit analysis on how to think about adopting a particular nuclear policy. The article discusses a promotional nuclear policy as advocated by the current Administration and Department of Energy, Precautionary Nuclear Policy and the Smart Energy Policy that relies on market tests, alternatives to large scale capital intensive nuclear investments.

Disparate Impact Of Negative Impact: Future Of Non-Intentional Discrimination Claims Brought By The Elderly, Sandra F. Sperino

Faculty Articles and Other Publications

In 2005, the U.S. Supreme Court interpreted the Age Discrimination in Employment Act (ADEA) as permitting plaintiffs to proceed under a disparate impact theory of discrimination. This decision affirms that plaintiffs who are at least forty years old may challenge employment decisions resulting from policies that are neutral on their face but have a disproportionate impact on individuals in the protected class.

Although this decision was heralded as a new tool to fight age discrimination in employment, Professor Sperino argues that the decision will have serious and detrimental effects on the ability of elderly employees to seek redress for unfavorable …

After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang

Faculty Articles and Other Publications

This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. Hazeltine and Session v. Perry. Through other post-Ashcroft cases, Part II teases out the differences (i) between influence districts as injury and remedy and (ii) between a jurisdiction's Section 5 and Section 2 obligations--details closely related …