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Articles 1 - 30 of 39
Full-Text Articles in Law
Prisoners In The Face Of Gladiators: Providing A Sword And Shield To Aliens In Removal Proceedings Through Court-Appointed Counsel, Kevin Gardner
Prisoners In The Face Of Gladiators: Providing A Sword And Shield To Aliens In Removal Proceedings Through Court-Appointed Counsel, Kevin Gardner
Akron Law Review
To an outside observer, immigration courts may appear identical to criminal courts. However, there is one critical distinction. In criminal court, defendants have a well-established right to court-appointed counsel if they cannot afford a lawyer. But there is no such right for aliens with removal orders. If they cannot afford an attorney, or if they do not have the good fortune to find a pro bono attorney, they must fight their case alone against an experienced government attorney. This is troubling because the consequences of an unjust removal order can be horrific: loss of employment, permanent separation from loved ones, …
Let's Be Honest About Law School Cheating: A Low-Tech Solution For A High-Tech Problem, Lori A. Roberts, Monica M. Todd
Let's Be Honest About Law School Cheating: A Low-Tech Solution For A High-Tech Problem, Lori A. Roberts, Monica M. Todd
Akron Law Review
The savvy nature of academic cheating has outpaced educators racing to foil students’ high-tech high-jinx. Indeed, a culture of cheating in higher education has become pervasive, and even normalized. While problematic in all educational contexts, the implications of this erosion of academic integrity have particularly profound consequences in law school. There is no question that every law school has problems with cheating, but this Article is meant to cast doubt that engaging in a technological arms race with students to catch the cheaters is the best solution. Instead, a pedagogical commitment to teaching integrity in law school is a better …
On Individual Participation Within Mass Litigation: The Case Of The Fairness Hearing, Nourit Zimerman
On Individual Participation Within Mass Litigation: The Case Of The Fairness Hearing, Nourit Zimerman
Akron Law Review
What can we learn from including class members’ voices in the process of approving settled class actions? How does the opportunity provided to class members to participate in a public hearing relate to the inherent tension between individualism and the goals of aggregate litigation? Employing a unique methodology for analyzing court transcripts and using original data, this paper provides a renewed and rich depiction of the fairness hearing—a public hearing mandated by the Federal Rules of Civil Procedure—which is held before the court can approve a settlement in a class action. Situated both within socio-legal studies and mass litigation scholarship, …
Devil Take The Hindmost: Reform Considerations For States With A Constitutional Right To Bail, Jordan Gross
Devil Take The Hindmost: Reform Considerations For States With A Constitutional Right To Bail, Jordan Gross
Akron Law Review
There is no federal constitutional right to bail. This means the question of who is bailable in state court is left entirely to state law. Most original state constitutions guaranteed that “all persons shall be bailable by sufficient sureties,” except those charged with a narrow category of serious offenses (typically capital crimes). This traditional right to bail is categorical – if an accused is charged with a bailable offense, the trial court must set bail, and it must release the accused if he, or someone on his behalf, posts bail. The trial court can impose conditions of release, including requiring …
Nonprofit Governance: The Basics, Lawrence J. Trautman, Janet Ford
Nonprofit Governance: The Basics, Lawrence J. Trautman, Janet Ford
Akron Law Review
Nonprofit organizations are prevalent in today’s economy, and many are governed by individuals who have been chosen on the basis of their advocacy of or contributions to various nonprofit causes rather than on the basis of business experience or acumen. Yet effective nonprofit governance, while presenting concerns unique to nonprofits, also presents many of the same concerns as does governance of for-profit entities. This article seeks to provide a primer for nonprofit organizations that need to recruit effective governance talent. First, we discuss the nature of nonprofits, their impact on the business landscape, and their similarities to and differences from …
Imposing A Deadline On The Irs: Artificial Intelligence Tries To Beat 'Starcraft' While The Irs Tries To Regulate Virtual Currency, Paul C. Nylen
Imposing A Deadline On The Irs: Artificial Intelligence Tries To Beat 'Starcraft' While The Irs Tries To Regulate Virtual Currency, Paul C. Nylen
Akron Law Review
Virtual currencies demanded serious attention in 2017 due to public interest, media attention, and investor appetite. With this increased attention on virtual currencies comes significant business, legal, and tax risks. This article serves as a launching pad for those tax risks, and attempts to predict how the IRS will react. By focusing on the IRS’s treatment of virtual currency as property, as well as discussing other tax issues like Foreign Bank Account Reporting (FBAR) compliance and like-kind exchanges under Internal Revenue Code section 1031, this article highlights the difficulty the IRS will have in regulating the ever-expanding world of virtual …
It's Time For An American (Data Protection) Revolution, Mark Peasley
It's Time For An American (Data Protection) Revolution, Mark Peasley
Akron Law Review
The European Union’s General Data Protection Regulation is the most comprehensive, far-reaching, and forward-thinking piece of legislation to be passed in recent history. The GDPR will set the European Union far ahead of the United States when it comes to protecting personal information, but fear not; many of the GDPR’s requirements reach across the Atlantic and will offer a trickle-down benefit to United States citizens as entities move towards compliance. However, this is only an unintended benefit of the GDPR. Currently, the United States takes a piecemeal approach to data protection that focuses on the type of information stored, which …
Blunting The Later-Mover Advantage: Intellectual Property And Knowledge Transfer, Irina D. Manta, Mattias G. Ottervik
Blunting The Later-Mover Advantage: Intellectual Property And Knowledge Transfer, Irina D. Manta, Mattias G. Ottervik
Akron Law Review
The United States followed a path of initially giving little protection to intellectual property (IP) so that the country could benefit from the IP of nations we term earlier-movers on the world stage of economic development. This symposium piece argues that Japan and China have been following a similar trajectory in their intellectual property laws while progressing on their own economic climb. Widespread international outsourcing of manufacturing has made intellectual property a key asset for private companies, which has strengthened the tendencies of earlier-movers to formulate and enforce strict intellectual property laws. This suggests that countries like China respond not …
Ai & Ip Innovation & Creativity In An Age Of Accelerated Change, Daryl Lim
Ai & Ip Innovation & Creativity In An Age Of Accelerated Change, Daryl Lim
Akron Law Review
From a glimmer in the eye of a Victorian woman ahead of her time, AI has become a cornerstone of innovation that “will be the defining technology of our time.” Around 2016, the convergence of computing power, funding, data, and open-source platforms tipped us into an AI-driven 4IR. AI can make a difference in accelerating disruptive innovation by bringing a data-driven approach to invention and creation. To do so, the law must embrace change and innovation as an imperative in a journey towards an ever-shifting horizon. In the creative arts, the work for hire doctrine provides a pragmatic legal vehicle …
Venue One Year After Tc Heartland: An Early Empirical Assessment Of The Major Changes In Patent Filing, Shawn P. Miller
Venue One Year After Tc Heartland: An Early Empirical Assessment Of The Major Changes In Patent Filing, Shawn P. Miller
Akron Law Review
In its May 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court reined in the Federal Circuit’s permissive venue standard, which had fueled the rise of the Eastern District of Texas as the busiest patent trial court in the nation and the preferred filing location of patent assertion entities (PAEs), derisively known as patent trolls. While the new limits of permissible venue in patent cases continue to be demarcated in the lower courts, sufficient time has passed since TC Heartland to begin to investigate the impact of the decision across a number of dimensions. …
A Masterclass In Trademark's Descriptive Fair Use Defense, Deborah R. Gerhardt
A Masterclass In Trademark's Descriptive Fair Use Defense, Deborah R. Gerhardt
Akron Law Review
When judges decide trademark cases, they often must balance trademark rights against interests in free expression. The defense known as “classic” or “descriptive” fair use embraces the foundational themes that make trademark conflicts so compelling. By design, the defense pits fair competition and free speech against a mark owner’s right to control its story, reputation, and values. The outcome of this tug of war may be hard to predict. It turns on consumer perception, and therefore, generally raises questions of fact. But in Mars, Inc. v. J.M. Smucker Co., this fact intensive question was decided as a matter of law. …
A Global Perspective On Digital Sampling, Loren E. Mulraine
A Global Perspective On Digital Sampling, Loren E. Mulraine
Akron Law Review
The state of the law in the United States is complicated by the fact that the de minimis doctrine is, and has been a muddled doctrine. Copyright law and patent law allow future authors and inventors to build upon the works of previous rights holders. In the patent world, the new work must be a non-obvious improvement on the original patent. In copyright, the key is that the secondary user cannot take a substantial portion of the prior author’s copyrightable expression. There is no infringement without substantial similarity. By definition, a de minimis taking is the polar opposite of substantial …
Biotechnology Patent Law Top Ten Of 2018 Broad Wins, Sovereignty Loses, And Patent Dance, Kevin E. Noonan, Andrew W. Torrance
Biotechnology Patent Law Top Ten Of 2018 Broad Wins, Sovereignty Loses, And Patent Dance, Kevin E. Noonan, Andrew W. Torrance
Akron Law Review
In this article, we discuss what we consider to be the ten important and influential biotechnology patent law judicial decisions of 2018. These hinged on a variety of patent doctrines. An abbreviated new drug application (ANDA) for the multiple sclerosis drug Ampyra set the stage for the Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc. (Fed. Cir. 2018) decision, in which the Court of Appeals for the Federal Circuit (Federal Circuit) provided guidance on how to conduct an obviousness analysis (35 U.S.C. §103). The Berkheimer v. HP Inc. (Fed. Cir. 2018) decision, although addressing a software invention, provided valuable insight into …
Confusing The Similarity Of Trademarks Law In Domain Name Disputes, Christine Haight Farley
Confusing The Similarity Of Trademarks Law In Domain Name Disputes, Christine Haight Farley
Akron Law Review
This article anticipates doctrinal disorder in domain name disputes as a result of the new generic top-level domains (gTLDs). In the course of the intense and prolonged debate over the possibility of new gTLDs, no one seems to have focused on the conspicuous fact that domain name disputes incorporating new gTLDs will be markedly different from the first-generation domain name disputes under previous gTLDs. Now second-generation disputes will have the added feature of the domain name having a suffix that will likely be a generic word, geographic term, or trademark. This addition is significant. Rather than disputes over , we …
The Ballad Of Harry James Tompkins, Brian L. Frye
The Ballad Of Harry James Tompkins, Brian L. Frye
Akron Law Review
On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state substantive law, not federal "general common law." While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins's account. This article argues that Tompkins and his witnesses …
Remedies, Equity & Erie, Caprice L. Roberts
Remedies, Equity & Erie, Caprice L. Roberts
Akron Law Review
This article addresses how a federal court sitting in diversity jurisdiction should approach remedies issues, particularly where the law-equity divide lingers. Treatment of remedies raises tricky problems for federal judges regarding what law to apply. It matters because of separation-of-powers, federalism, jury trial implications, forum shopping, and fairness to litigants. Because, after all, the choice of federal versus state forum should not dictate the outcome. Further, notwithstanding calls to eliminate vestiges of equity’s unique characteristics and requirements, the gravitational pull of equity remains. There is value in continuing to honor equitable principles. And there is value in federal judges cultivating …
Beyond The Elements: Erie And The Standards For Preliminary And Permanent Injuctions, Michael T. Morley
Beyond The Elements: Erie And The Standards For Preliminary And Permanent Injuctions, Michael T. Morley
Akron Law Review
Federal courts frequently avoid deciding whether federal or state law governs the availability of injunctive relief for state-law claims by simply declaring that both sets of standards are the same. Although federal and state standards for injunctions often incorporate similar elements, those elements often are phrased in somewhat different terms and relate to each other in different ways. Even when federal and state standards involve facially identical elements, federal and state courts often interpret and apply them differently based on completely distinct bodies of precedent that can lead to different outcomes. Because state and federal standards arise from, and refer …
The Erie/Sears/Compco Sqeeze: Erie's Effects On Unfair Competition And Trade Secret Law, Sharon K. Sandeen
The Erie/Sears/Compco Sqeeze: Erie's Effects On Unfair Competition And Trade Secret Law, Sharon K. Sandeen
Akron Law Review
On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.
Jurisdiction Stripping Of The Federal Circuit?, Shubha Ghosh
Jurisdiction Stripping Of The Federal Circuit?, Shubha Ghosh
Akron Law Review
This article examines how the Federal Circuit addresses state commercial and contract law in its patent law jurisprudence. Instead of deferring to state law, the court creates its own federal common law of contracts and assignments, creating parallels with the debates arising from the 1938 Erie decision. This federal common law is inconsistent with the need for uniformity in the law governing patent transactions. To resolve this issue, Congress may consider stripping Federal Circuit jurisdiction over state contract law claims. This article examines the pros and cons of this proposal.
Brandeis's Ip Federalism: Thoughts On Erie At Eighty, Joseph Scott Miller
Brandeis's Ip Federalism: Thoughts On Erie At Eighty, Joseph Scott Miller
Akron Law Review
Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every I.P. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the I.P. context? This piece, prepared in connection with the “Erie …
At The Intersection Of Erie And Administrative Law: Front-Loading The Erie Question Into The Adoption Of A Federal Rule, Jeffrey L. Rensberger
At The Intersection Of Erie And Administrative Law: Front-Loading The Erie Question Into The Adoption Of A Federal Rule, Jeffrey L. Rensberger
Akron Law Review
The Supreme Court regularly faces Erie issues involving the displacement of state law by a Federal Rule of Civil Procedure. Under Hanna v. Plummer, federal rules displace state law if they were intended to apply to the matter at issue and are valid. But in such cases, the Court has already encountered the rule once before, at the time it adopted the rule and transmitted it to Congress. Why is the Erie question decided at the back end of the process rather than at its front? If the question of whether a rule is intended to displace state law …
Adrift On Erie: Characterizing Forum-Selection Clauses, Kermit Roosevelt Iii, Bethan R. Jones
Adrift On Erie: Characterizing Forum-Selection Clauses, Kermit Roosevelt Iii, Bethan R. Jones
Akron Law Review
Erie is one of our most famous cases, but also one of the most mysterious. It has become something of a Rorschach test, a pattern onto which scholars project their own concerns. This article presents a simple view of Erie as a case about power: first, who has the power to make certain laws and second, who has the power to interpret them. From this perspective, Erie has nothing to do with substance-procedure characterization—the topic now understood to be governed by Erie analysis. Indeed, early post-Erie cases describe Erie as concerned with power. The substance-procedure distinction enters the picture …
Erie'S Unintended Consequence: Federal Courts Creating State Law, Laura E. Little
Erie'S Unintended Consequence: Federal Courts Creating State Law, Laura E. Little
Akron Law Review
This paper explores the permission that the Erie decision granted to federal courts to inject themselves into the dynamics of state law change. Following Erie’s mandate, a federal court can sometimes clearly discern the content of state law from a state statute or a recent state Supreme Court decision. Other times, state court precedent is either nonexistent or old and contrary to trends elsewhere in United States law. In these latter circumstances, federal courts are forced to decipher the current content of state law. In these circumstances, federal courts must sometimes use weak or nonexistent evidence to guide their analysis …
Erie And Constitutional Structure: An Intellectual History, Craig Green
Erie And Constitutional Structure: An Intellectual History, Craig Green
Akron Law Review
Erie's meaning has changed many times during its eighty-year history, and this essay provides a brief intellectual history about those serial transformations. Most modern lawyers have completely forgotten the radicalism of Erie's constitutional reasoning in 1938. The legal process school defanged Erie's original meaning, even as scholars simultaneously redefined the term "constitutional" itself. Erie's cultural significance dropped as the legal process school faded. But it has resurfaced among twenty-first-century conservatives as a pillar of federalism (the "old myth") as well as separation of powers (the "new myth"). Especially given Erie's profound reputation as an iconic precedent, the legal community must …
The Erie Doctrine: A Flowchart, Michael S. Green
The Erie Doctrine: A Flowchart, Michael S. Green
Akron Law Review
The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can arise in federal court, not just diversity jurisdiction. My hope is that this flowchart will help demystify Erie, by showing that Erie problems are, by and large, standard choice-of-law problems, much like those faced by state courts.
Erie As A Way Of Life, Ernest A. Young
Erie As A Way Of Life, Ernest A. Young
Akron Law Review
This essay—presented as the keynote address to the University of Akron School of Law’s conference on “Erie at 80”—considers the impact of the Supreme Court’s decision in Erie Railroad Co. v. Tompkins on the broader landscape of American law. I begin with Erie’s contribution to our modern, positivist understanding of the nature of law. That understanding, however, is under threat from pervasive tendencies, on both the political Left and Right, to collapse the distinction between law as a set of positivist choices adopted by government and law as the principles that we think are just, right, and true. …
Ohio's New Sentencing Guidelines: A "Middleground" Approach To Crack Sentencing, Dan Haude
Ohio's New Sentencing Guidelines: A "Middleground" Approach To Crack Sentencing, Dan Haude
Akron Law Review
No abstract provided.
In Search Of Juvenile Justice: From Star Chamber To Criminal Court, Hon. Patrick R. Tamilia
In Search Of Juvenile Justice: From Star Chamber To Criminal Court, Hon. Patrick R. Tamilia
Akron Law Review
No abstract provided.
Treatment And Rehabilitation Or Hard Time: Is The Focus Of Juvenile Justice Changing?, Hon. John B. Leete
Treatment And Rehabilitation Or Hard Time: Is The Focus Of Juvenile Justice Changing?, Hon. John B. Leete
Akron Law Review
No abstract provided.
The Impact Of The Uniform Child Custody Jurisdiction Act On Juvenile Court Jurisdiction, Hon. Viola J. Taliaferro
The Impact Of The Uniform Child Custody Jurisdiction Act On Juvenile Court Jurisdiction, Hon. Viola J. Taliaferro
Akron Law Review
No abstract provided.