Law Commons^™

Second Level Agreements, Yafit Lev-Aretz

Akron Law Review

This Article analyzes in-depth a significant practice that has not been recognized in legal scholarship. Their unique structure and the way in which Second Level Agreements have developed within the relatively short time of their existence have important consequences for the various players in the copyright market...The Article also offers a normative assessment of the benefits and shortcomings of the Second Level Agreements practice...The Article then carefully looks at the future of Second Level Agreements while reviewing four potential catalysts—the shift towards premium content, the Viacom v. Google ruling, the move towards disintermediation, and the rise of noncommercial licensing system. …

Exposing The Hocus Pocus Of Trusts, Kent D. Schenkel

Akron Law Review

Part II makes the conceptual case for viewing the trust as an elective cost-externalization device. Part III offers the spendthrift trust as the archetypal model for purposes of our analysis, briefly describes the spendthrift trust, and explores its consequences to outsiders to the trust deal. Part IV offers some reasons why the elective externalities of trusts persist. Part V first examines and rejects a couple of approaches to minimizing the externalized costs of trusts that rely on the “bundle of sticks” approach to property interests. It then moves beyond the bundle of sticks approach, settling on a solution based on …

Chooseyourjudges.Org: Treating Elected Judges As Politicians, Ric Simmons

Akron Law Review

In order to combat this problem of voter ignorance, I recently created a website designed to provide voters with information about judicial elections...Creating the website posed unique practical challenges, such as how to gather the information about the candidates and how to present it to the voter in a way that was meaningful and useful to a non-lawyer. But it also raised even more fundamental questions about the purpose of judicial elections and the role voters are meant to play in the process. This Article describes these challenges and questions, and then proposes my own initial solutions to them, in …

Defining The Wingspan Of The Migratory Bird Treaty Act, Ashley R. Fiest

Akron Law Review

This Comment will focus on the widely different interpretations, applications, and enforcement of the MBTA and the consequences that will result if a concrete solution is not implemented soon. Part II will discuss the background, historically and legislatively, that led to the enactment of the MBTA and its current implementation. Part III will discuss the current conflict within the courts regarding how the MBTA is to be applied. In discussing this conflict, this section looks at the particular reasoning behind two of the most recent decisions on this issue and what led each of the courts to different interpretations. Part …

Re-Evaluating The Role Of Companion Animals In The Era Of The Aging Boomer, Rebecca J. Huss

Akron Law Review

This Article is divided into four substantive parts. Part II considers the role of pets in the United States and the impact of companion animals in the lives of seniors. Part III analyzes issues that the elderly may face in keeping or interacting with companion animals in their residences. Part IV analyzes federal laws that ensure that persons with disabilities using service and assistance animals will have access to public accommodations and housing. Part V of this Article considers risks and ethical issues involved with having animals in the lives of the elderly.

Implicated But Not Charged: Improving Due Process For Unindicted Co-Conspirators, Raeed N. Tayeh

Akron Law Review

This Comment posits that the practice of publicly naming unindicted co-conspirators before trial violates due process and that unless preventative measures are adopted to halt this practice, such due process violations will continue. This conclusion is buttressed by the text that follows, which surveys the relevant case law on the rights of unindicted co-conspirators, highlights the types of harm that a sample of unindicted co-conspirators have suffered as a result of being publicly named, and proposes procedures and rules that, if adopted, would conform with due process and help prevent these harms.

In this Comment, I will expand on the …

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Nicol Bowman

Akron Law Review

This article aims to improve the quality of evidence gathering and interpretation at one crucial phase of investigations: the evaluation of search warrant applications. Part II of this article provides background on the search warrant application process, including how courts evaluate such applications based on informants’ tips and how defendants can subsequently challenge those decisions. Part III then discusses the ways in which cognitive biases can affect each stage of the search warrant process. Part IV provides my suggested solutions to the problems identified, all of which fall under the general umbrella of full disclosure. That part argues that education …

Why The Judicial Elections Debate Matters Less Than You Think: Retention As The Cornerstone Of Independence And Accountability, Layne S. Keele

Akron Law Review

This Article attempts to reframe the age-old judicial election arguments into a discussion about the importance of the retention decision, in order to draw out the areas of true disagreement in the judicial independence/judicial accountability debate. I argue that the core difficulties in balancing the desire for judicial independence with the desire for judicial accountability stem primarily from the judicial retention decision, regardless of whether retention is obtained by some form of reelection or through a form of reappointment. I then propose a two-term system for putting judges on state high courts, in which (1) high court judges sit for …

The Politics Of Procedure: An Empirical Analysis Of Motion Practice In Civil Rights Litigation Under The New Plausibility Standard, Raymond H. Brescia, Edward J. Ohanian

Akron Law Review

This Article attempts to assess, empirically, whether the Court’s introduction of the so-called “plausibility standard” in the context of civil pleadings has had a disparate impact on civil rights claims, particularly in employment and housing discrimination cases. In a previous study conducted by one of the co-authors of this Article, it was revealed that in a sample of employment and housing discrimination cases, courts were more likely to dismiss these cases based on the lack of specificity of the pleadings after the Court’s decision in Iqbal. Furthermore, that study also found, after Iqbal, a significant rise in both the number …

School Bullying Litigation: An Empirical Analysis Of The Case Law, Diane M. Holben, Perry A. Zirkel

Akron Law Review

This study will analyze the case law specific to bullying in the public school context during a recent twenty-year period. More specifically, its scope will include the frequency and the outcomes of the liability and “free and appropriate public education” (“FAPE”) claims on a longitudinal basis. Part I of the article provides the context in terms of (a) the definition of bullying, and (b) the literature concerning the rate and effects of bullying as well as the extent of anti-bullying policies and practices at the school district and state levels. Part II provides the methodological information, including the scope of …

United States V. Mobley: Another Failure In Crime Of Violence Analysis, Samantha Rutsky

Akron Law Review

Part II gives a background on the career offender provision and residual clause analysis, and the current law on whether possession of a weapon in prison is considered a crime of violence, which has resulted in a circuit split. Part III gives a statement of the case to this note, United States v. Mobley. Part IV analyzes how the Mobley majority misapplied the Begay two-part test and attempts to remedy residual clause analysis for the crime of possession of a weapon in prison. This will include Part IV.A, which explains why the Mobley dissent was correct in its opinion, Part …

Trading With Foreigners: An Interdisciplinary Analysis Of China's Core Interests In Trade And Foreign Policy, Phoenix X.F. Cai

Akron Law Review

This article takes an interdisciplinary approach by drawing on political science, international relations, and legal global governance literatures to explain how China’s foreign policy impacts and guides its trade policy, which is manifested in the three core interests. The article makes the case that the core interest analysis holds promising explicative, predictive, persuasive, and coalition-building value in the arenas of global trade policy and dispute settlement. This article proceeds in five main parts. Part II traces the contours of China’s three core interests in action, both in the domestic and international spheres. While not purporting to be exhaustive, it takes …

How "Bad Law, Bad Economics And Bad Policy" Positively Shaped Corporate Behavior, Megan Wischmeier Shaner

Akron Law Review

This article begins by briefly discussing the factual background of the Omnicare decision and the majority’s opinion. Second, this article analyzes the criticism that followed, which generally falls into two broad categories: the doctrinal shortcomings in the majority’s reasoning and the negative practical implications of banning precommitment strategies. Third, this article briefly explores whether the concerns about Omnicare’s impact on merger and acquisition activity came to fruition in the ten years since the decision was issued, concluding that many did not. This article also reviews post-Omnicare case law noting that subsequent decisions of the Delaware Court of Chancery addressing Omnicare-based …

Judicial Decisionmaking, Empathy, And The Limits Of Perception, Nicole E. Negowetti

Akron Law Review

This Article explores the effects of a judge’s prior assumptions, values, and experiences on judicial decisionmaking. In Part II, this Article will explore the cognitive science research regarding decisionmaking and implicit bias to reveal how each of us develops values, intuitions, and expectations below the level of our consciousness that powerfully affect both our perceptions and our judgments. Although there are many types of cognitive biases and heuristics involved in decisionmaking, for purposes of this Article, I focus on implicit biases towards various social groups. “[E]xplicit” biases are attitudes and stereotypes that are consciously accessible through introspection and endorsed as …

Bellwether Trial Selection In Multi-District Litigation: Empirical Evidence In Favor Of Random Selection, Loren H. Brown, Matthew A. Holian, Arindam Ghosh

Akron Law Review

For decades, courts overseeing mass tort litigation have struggled with how to identify the right plaintiffs for early trials. These initial trials, often called “bellwether” trials, are intended to help the parties evaluate the merits of other cases in the same litigation. But a successful bellwether process depends heavily on the method by which the trials are selected. A process that all litigants regard as fair and that results in the selection of plaintiffs who are representative of the claims of other plaintiffs can help to facilitate the resolution of an entire mass tort docket, whereas a process that is …

Personal Jurisdiction: A Doctrinal Labyrinth With No Exit, Simona Grossi

Akron Law Review

My goal is not to categorize, critique, or refine existing doctrine, but to challenge the idea that the Supreme Court’s case-by-case approach to personal jurisdiction represents an arc of progress. In my view, all too often the Court’s apparent refinements operate as detours from the fundamental principles at stake. The result is a clutter of doctrinal tests that is inconsistent with principle and confuses more than it informs. In Part II, I briefly explore the traditional bases of jurisdiction and the Court’s elaboration of the minimum contacts test in International Shoe Co. v. State of Washington. 9 Here, I show …

Mortgage Foreclosure Proceedings: Where We Have Been And Where We Need To Go, Bryan E. Meek

Akron Law Review

The primary purpose for this comment is to provide an overview of the foreclosure process while introducing the laws and regulations that would govern an “ideal” foreclosure system. First, it provides a general introduction to the mortgage/foreclosure process. This introduction is crucial; it will help many to understand the way financial institutions have complicated the foreclosure process. Next, it analyzes various states, labeling them as either having “strict” foreclosure laws and regulations or having “lenient” foreclosure laws and regulations. Lastly, this comment discusses the pros and cons of various foreclosure requirements. The ultimate goal of this comment is to establish …

Covering Up An Infection With A Bandage: A Call To Action To Address Flaws In Ohio's Anti-Hazing Legislation, Justin M. Burns

Akron Law Review

Hazing is not just a student and education problem – it is a society problem. There have been attempts to address the problem, such as educational programming, adopting anti-hazing policies in schools, and condemning hazing through legislatures. However, these attempts, including Ohio’s 1983 anti-hazing statute, only punish the hazing as an “act;” put differently, these approaches characterize hazing as an activity that someone does to someone. But after considering human development and the reality of how hazing has materialized in our communities, hazing is not something done do people, but why something is done to them.

For example, consider an …

O'Connor's Firsts, Phyllis L. Crocker

Akron Law Review

Chief Justice Maureen O’Connor will make her mark on the Ohio court system and on the laws of Ohio in many ways. She made two significant marks her first day as Chief Justice: she was the first woman elected to the position of Chief Justice in Ohio and in her swearing-in speech she called for review of the death penalty in Ohio.1 Both were meaningful to me personally and as a citizen of Ohio. I appreciated her acknowledging her place in history and her willingness to tackle, right from the beginning of her tenure, the important topic of the death …

Chief Justice O'Connor's Juvenile Justice Jurisprudence: A Consistent Approach To Inconsistent Interests, Yvette Mcgee-Brown, Kimberly A. Jolson

Akron Law Review

Part II of this Article examines the growth of the juvenile justice system as a system apart from the adult criminal system. It reviews the goals of the juvenile court system—to treat children differently than adults, to rehabilitate, and to protect both the child and society. Part II also discusses the gradual movement to harsher sentencing of young offenders and transferring those offenders to the adult criminal justice system, as well as the subsequent exhortation of the United States Supreme Court that youth in the juvenile justice system must be afforded the protection of constitutional rights. Part III.A explains the …

City Of Norwood V. Horney - Much More Than Eminent Domain: A Forceful Affirmation Of The Independent Authority Of The Ohio Constitution And The Court's Power To Enforce It, Kathleen M. Trafford

Akron Law Review

individual’s protection under Ohio’s eminent domain law but also refines the judiciary’s approach to Ohio constitutional analysis. Part I will set forth the pre-Norwood standard of review in Ohio eminent domain law, which took an increasingly expansive approach to determining what constitutes public use out of deference to the legislature. It will outline the standard of review for eminent domain cases at the federal level following the United States Supreme Court’s holding in Kelo, which upheld the taking of private property for purely economic reasons. Finally, Part I discusses the facts and holding of Norwood, which struck down the taking …

Flexible Predictability: Stare Decisis In Ohio, Richard Garner

Akron Law Review

This Article explores the need for a doctrine permitting, but limiting, the overruling of prior precedent; Ohio’s adoption of such a rule; and whether the current standard will endure. To fully appreciate the need for a rule that permits but also limits the overruling of prior Supreme Court precedent, it is helpful to understand the historical context in which the Galatis rule developed. Section II of this Article discusses the political and ideological changes that swept the Ohio judiciary in the early 1990s with the election of two new Justices to the Ohio Supreme Court. The new Justices quickly set …

Chief Justice Maureen O'Connor: A Legacy Of Judicial Independence, Pierce J. Reed

Akron Law Review

An introduction to a special edition of the Akron Law Review, which celebrates the work of Chief Justice Maureen O'Connor during her first decade as a member of the Supreme Court of Ohio.