Law Commons^™

Book Review: Dershowitz On Presidential Impeachment: An Analysis Of The Case Against Impeaching Trump, Michael Conklin

ConLawNOW

This is a review of Alan Dershowitz’s 2018 book, The Case Against Impeaching Trump. Because the Constitution provides little guidance on presidential impeachment, the issue is often interpreted based on political party affiliation. Dershowitz, a strong Hillary Clinton supporter, provides a neutral examination of the issue. This review contains analysis of the current state of impeachment efforts, Dershowitz’s arguments against impeachment, and a critique of his proposed “shoe on the other foot” test.

Lockett Symposium: Recollections On The Lockett Case In The U.S. Supreme Court, Joel Berger

ConLawNOW

Recollections of an NAACP Legal Defense Fund attorney who worked with Professor Amsterdam on the Lockett case.

Lockett Symposium: Lockett As It Was, Is Now, And Ever Shall Should Be, Karen A. Steele

ConLawNOW

Lockett made clear what was constitutionally unacceptable in capital sentencing statutes (limiting the range of mitigating factors to be considered) while affirmatively heralding the significance and breadth of mitigating factors unique to the defendant that must be affirmatively and independently considered by jurors, courts and counsel; the inverse correlation between mitigating factors and disproportionate sentencing; and the interrelationship between mitigating factors and narrowing—all in an effort to provide a “meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not.” The threatened and actual use of “double-edged” aspects …

Introduction To The "Lockett V. Ohio At 40 Symposium": Rethinking The Death Penalty 40 Years After The U.S. Supreme Court Decision, Margery B. Koosed

ConLawNOW

Professor Koosed provides an introduction to the symposium on the fortieth anniversary of the U.S. Supreme Court’s decision in Lockett v. Ohio, which discusses the backstory and import of the case. The decision in Lockett laid the framework for narrowing application of the death penalty by overturning Ohio’s 1974 era death penalty law, and heralding the significance and breadth of mitigating factors that must be considered by jurors and judges making the life or death decision in the penalty phase of capital cases, and tapped in to issues of disproportionate sentencing (those decided and yet to be).

Lockett Symposium: Is The Supreme Court's Command On Mitigating Circumstances A Spoonful Of Sugar With A Poison Pill For The Death Penalty?, Jeffrey L. Kirchmeier

ConLawNOW

This Article addresses how Lockett v. Ohio and the Supreme Court’s jurisprudence on mitigating factors in capital cases established a more humane death penalty while at the same time undermining the death penalty system. The Court’s emphasis on the constitutional importance of individualized sentencing has, in effect, helped return the U.S. death penalty system to an unconstitutional arbitrary and discriminatory system.

After the U.S. Supreme Court effectively struck down the existing death penalty statutes in 1972, state legislatures responded with new statutes designed to try to make a fairer and less arbitrary death penalty. When the Supreme Court reviewed these …

Lockett Symposium: Lockett V. Ohio And The Rise Of Mitigation Specialists, Russell Stetler

ConLawNOW

This article discusses the impact of Lockett in terms of the rise of mitigation specialists—the capital defense team members from a variety of multidisciplinary backgrounds whose dedicated function is to investigate the social history of the client in order to facilitate an outcome that avoids execution. In Part I, the article discusses how Lockett ended the confusion that resulted from the Supreme Court’s prior death penalty decisions in the 1970s. In Part II, the article examines the emergence of mitigation investigation as a central obligation of capital defense in response to Lockett, and the diverse career paths that led …

Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman

ConLawNOW

In Lockett v. Ohio, Justice Byron White authored a separate concurring opinion specifically to assert that capital punishment violates the Eighth Amendment when imposed absent “a finding that the defendant possessed a purpose to cause the death of the victim.” This view was largely vindicated when Justice White authored the opinions in Enmund v. Florida and Cabana v. Bullock, in which the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Nonetheless, just one year …

Lockett Symposium: Reflections On The Sandra Lockett Case, Peggy Cooper Davis

ConLawNOW

Professor Davis, who was one of the lawyers handling Sandra Lockett’s Supreme Court case, describes Ms. Lockett's courage under threat of execution and explains why principles of respect for human dignity should have forbidden placing her in that horrifying position.

Lockett Symposium: The Other Lockett, Dennis Balske

ConLawNOW

Sandra’s case was perfect for the New York Times. James’s makes for choice tabloid reading.

Few people realize that two Locketts were involved in the famous Lockett case–Sandra and her brother, James. Sandra is famous because she is the Lockett in the United States Supreme Court decision. James is unknown because the Ohio Supreme Court remanded his case to Akron for a new trial.

Sandra lost her direct appeal in the Ohio Supreme Court. Eventually the United States Supreme Court granted review and reached its all-important decision striking down Ohio’s death penalty statute and mandating that capital defendants be permitted …

For Whom The Bell (Equitably) Tolls: Erisa Compliance And Denial Of Benefits Notices Circuit Split, Sarah Smith

Akron Law Review

The circuit courts are split as to how a plan administrator of an ERISA-governed employee benefit plan must notify a claimant of a time limitation placed on a claimant’s ability to seek judicial review of an adverse benefit decision. Some courts indicate that inclusion of this time limitation in the Summary Plan Description is sufficient to notify a claimant. Other courts have held that the time period must specifically be included in adverse determination notices, which are documents notifying claimants of the denial of their claim and the right to judicial review. Much of the debate among courts concerns the …

Harmonizing Cultural Ip Across Borders: Fashionable Bags & Ghanaian Adinkra Symbols, J. Janewa Osei-Tutu

Akron Law Review

Global copyright and trademark laws protect symbols, names, and literary and artistic works. However, when their primary significance is cultural, because they are neither individual original works nor symbols that are used as commercial identifiers, intellectual property laws do not protect these symbols or artistic works. This is true, even if these goods are protected under national laws as part of that nation’s cultural heritage. Once these cultural goods cross borders, there is no international law that will enable the country from which these goods originate to assert its rights in other countries. This Article characterizes these cultural goods as …

The (Re)Newed Barrier To Access To Medication: Data Exclusivity, Srividhya Ragavan

Akron Law Review

This Article is set in the background of the consequences of the WTO’s prescriptions on patenting of life-saving medications which has largely contributed to the morphing of patents o n life-saving medication into a luxury. Remarkably, there has been a transformation of the role of patents in the context of pharmaceutical innovation into a strategic business tool leading to a larger interest in creation and sustenance of regulatory rights. The biggest global development in this area is an increased effort to strengthen exclusivity using regulatory protections for all chemicals, and even, biologics, involved in all stages of drug development. Consequently, …

Intellectual Property, Traditional Knowledge, And Traditional Cultural Expressions In Native American Tribal Codes, Dalindyebo Bafana Shabalala

Akron Law Review

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in …

The Lost Tort Of Moral Rights Invasion, Patrick R. Goold

Akron Law Review

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply …

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Akron Law Review

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments …

Super Bowl I, Jazz Radio, And The Glass Menagerie: Copyright, Preservation, And Private Copies, R. Anthony Reese

Akron Law Review

Copyright law is often described as providing incentives to make and disseminate creative works. Copyright law should also seek to foster the preservation of creative works so that people can enjoy, use, study, critique, and build upon them long after they are first created. Traditionally, copyright law fostered preservation largely because most copyright owners principally exploited their works by making and distributing many tangible copies of those works. Those copies could end up in many different hands, and each copy could potentially survive into the future. Some kinds of works, though, were disseminated principally by performance, and as a result, …

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark P. Mckenna

Akron Law Review

This Article focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement—use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but only in cases involving particularly egregious conduct.

Several recent trends in the application of the TCA, …

Suppression Of Free Tweets: How Packingham Impacts The New Era Of Government Social Media And The First Amendment, Elise Berry

ConLawNOW

As social media popularity grows, so too does the constitutional conflicts between the First Amendment’s public forum doctrine and a public official’s social media. More and more claims of viewpoint discrimination are arising from the district courts, stemming from a public official’s use of his or her social media to delete comments or ban users from their official social media pages. Similarly, President Donald Trump’s use of his Twitter has also instigated a law suit against him for viewpoint discrimination under the public forum doctrine. While the Supreme Court has been silent on the issue, its decision in Packingham v. …

Remedies Symposium: Contempt Fines And The Eleventh Amendment, John Sanchez

ConLawNOW

The Eleventh Amendment permits plaintiffs to recover prospective relief, for example, injunctive or declaratory relief, against a state. By contrast, the Eleventh Amendment bars recovery of retrospective relief against a state. The classic legal remedy of money damages is not recoverable. There are three types of contempts: civil compensatory and coercive contempt and criminal contempt. Civil compensatory contempt fines and criminal contempt fines are clearly retrospective in nature and so are not recoverable against a state. At the same time, civil coercive contempt fines are prospective and so should be recoverable against a state despite the Eleventh Amendment. Problems arise, …

Surprising Originalism: The Regula Lecture, Lawrence B. Solum

ConLawNOW

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz

Akron Law Review

Approximately a decade ago, the Supreme Court of the United States unexpectedly changed the pleading standard for federal cases with the Twombly and Iqbal decisions. Plausibility pleading replaced the more liberal notice pleading standard endorsed by the Federal Rules of Civil Procedure. Since then, state courts have been faced with a choice to either mirror this change in pleading standards or maintain their commitment to notice pleading. Plausibility pleading has begun to creep into the state court system. Several states have formally changed their pleading standards, while others have declared their commitment to notice pleading. This Article considers the impact …

Long Gone! When To Recall Discharged Juries, Maria T. Ciccolini

Akron Law Review

In June 2016 the Supreme Court ruled in Dietz v. Bouldin that federal judges in civil cases could, in order to amend a flawed verdict, reuse a jury that was discharged and long gone. Under this ruling, by the time the court or the attorneys recognize the inconsistent ruling, the jury could and likely will have been profoundly prejudiced, therefore violating the claimant’s right to a fair trial afforded to him by our democratic system of justice. The prejudice test implemented by the Court in Dietz is not detailed enough to tighten the reins on judicial discretion and ensure that …

The Sedona Principles (Third Edition): Continuity, Innovation, And Course Corrections, Thomas Y. Allman

Akron Law Review

The Sedona Principles and Commentaries in the Third Edition (2018) are worthy successors to those of the Second Edition (2007) and, in many respects, a substantial improvement. Principles 2, 5 and 8 build on the 2015 amendments to Federal Civil Rules, including amended Rule 26(b)(1), in advocating an increased emphasis on proportionality across the full spectrum of e-discovery activity. They also reflect a more nuanced view of Rule 26(b)(2)(B), added by the 2006 Amendments to deal with undue burden or costs, as does Principle 13 in regard to cost allocation, which recommends use of amended Rule 26(c) to the exclusion …

U.S. Discovery In A Transnational And Digital Age And The Increasing Need For Comparative Analysis, Vivian Grosswald Curran

Akron Law Review

U.S. discovery has long been a troublesome issue between the U.S. and civil-law nations. The passage of the Hague Convention on Evidence might have brought much-needed relief, but U.S. courts minimized its effects, favoring continued use of the Federal Rules of Civil Procedure. Civil-law states passed blocking statutes or their equivalents as they sought to protect what they considered to be fundamental values of privacy and national sovereignty. With the rise of transnational litigation, Section 1782 discovery was intended to provide assistance to foreign courts and parties in litigation abroad by opening certain discovery channels in the U. S. to …

Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments, George Shepherd

Akron Law Review

Ever since broad discovery was permitted in 1938 in the Federal Rules of Civil Procedure, the system has been a failure. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that; the decisions eliminate discovery in many cases. The 2015 amendments to the Federal Rules do little to cure the remaining major problems. Instead, broad discovery should be eliminated for all cases.

Initial Disclosures: The Past, Present, And Future Of Discovery, Brittany K.T. Kauffman

Akron Law Review

This Article looks back at the origins of initial disclosures and the history of the course of several rule amendments. There was an attempt in the early 1990s to strengthen the federal disclosure rules, but the amendments were implemented inconsistently around the country, and the amendments were subsequently rolled back in 2000. Despite these early challenges, there has been a growing movement in support of initial disclosures as a way to address the growing cost and delay of civil litigation—and, in particular, the cost and delay of discovery. Pilot projects and efforts at the state and federal levels suggest a …

Discovery Innovation: Discovery Reform And Federal Civil Rulemaking, Brooke D. Coleman

Akron Law Review

Federal civil rulemaking—the process by which the Federal Rules of Civil Procedure are created and maintained—has simultaneously been described as a crisis and a crowning achievement. This Article departs from this binary and pragmatically turns to a consideration of how the committee operates. Using the lens of discovery reform, this Article examines how the rulemaking process has evolved over the past 35 years. The ups and downs of discovery reform have inspired the committee to adopt many modern rulemaking innovations. Those innovations, this Article argues, are critical to the success of the rulemaking process because they provide rulemakers with better …

Self-Destruct Apps: Spoliation By Design?, Agnieszka Mcpeak

Akron Law Review

The Federal Rules of Civil Procedure are at risk of being out of sync with current technology trends. In particular, ephemeralmessaging applications, or “self-destruct apps,” are changing the way we conceptualize digital records. These apps embrace the industry goal of “privacy by design,” a positive trend in minimizing the amount of data that is created and stored. Civil discovery, on the other hand, contemplates data retention and preservation, particularly as to electronically stored information. This Article identifies the conflict between privacy by design—particularly self-destruct apps—and the civil discovery rules. It cautions against treating self-destruct apps as spoliation by design and …

Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases, Judge Paul W. Grimm

Akron Law Review

The 2015 amendments to the Federal Rules of Civil Procedure ambitiously sought to reduce pretrial delay, expense, and burden in civil cases. But the rules are not self-executing, and without active hands on judicial supervision and intervention where necessary to insure that the Rules are being applied as intended, there is a risk that the objectives of the amended rules will not be realized. This article discusses a number of common sense, practical, yet effective ways in which judges can fulfill their obligation to effectively manage their cases to achieve the goal of Rule 1 of the Rules of Civil …

Breaking The Boilerplate Habit In Civil Discovery, Steven S. Gensler, Lee H. Rosenthal

Akron Law Review

No more boilerplate in discovery requests or responses. That is the clear message of the 2015 amendments to the Federal Rules of Civil Procedure. Inspired by that message, some judges have taken a firm stand, warning lawyers to change their ways or face serious sanctions. Will it be enough to root out practices deeply engrained in discovery culture? This Article examines the “anti boilerplate” rule changes and the cases applying them. We endorse the rule changes and applaud the judges who have spoken out. But if real change is to occur, more judges—many more judges—must join them. As judges consider …