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Case Western Reserve University School of Law

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Full-Text Articles in Law

Our Federalism On Drugs, Jonathan Adler Jan 2020

Our Federalism On Drugs, Jonathan Adler

Faculty Publications

Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the ...


Why Choose Ltas? An Empirical Study Of Ohio Manufacturer’S Contractual Choices Through A Bargaining Lens, Juliet P. Kostritsky, Jessica Ice Jan 2020

Why Choose Ltas? An Empirical Study Of Ohio Manufacturer’S Contractual Choices Through A Bargaining Lens, Juliet P. Kostritsky, Jessica Ice

Faculty Publications

This paper contributes to recent scholarship regarding Long Term Agreements (LTAs) by providing empirical evidence that suppliers are more likely to undertake the costs of an LTA if the transaction requires significant capital expenditures or the potential for large sunk costs. Through a survey of a random group of 63 Ohio supplier/manufacturers, the paper explores why supplier/manufacturers with a full range of contractual and non-contractual solutions might choose one set of arrangements over others. It then seeks to link its findings to a broader theory of how parties bargain to solve durable problems under conditions of uncertainty, sunk ...


Statutes And The Common Law Of Contracts: A Shared Methodology, Juliet P. Kostritsky Jan 2020

Statutes And The Common Law Of Contracts: A Shared Methodology, Juliet P. Kostritsky

Faculty Publications

This chapter explores the intersection between, or the impact of, statutes on contract law, and compares the relative importance of, and intersections between, statutory and common law in contract.


Uncooperative Environmental Federalism 2.0, Jonathan H. Adler Jan 2020

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

Faculty Publications

Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.


Abandoning Copyright, Dave Fagundes, Aaron K. Perzanowski Jan 2020

Abandoning Copyright, Dave Fagundes, Aaron K. Perzanowski

Faculty Publications

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete ...


Appeal No. 0965: Brookfield Citizens Against Injection Wells, Et Al. V. Division Of Oil & Gas Resources Management And Highland Field Services, Llc, Ohio Oil & Gas Commission Aug 2019

Appeal No. 0965: Brookfield Citizens Against Injection Wells, Et Al. V. Division Of Oil & Gas Resources Management And Highland Field Services, Llc, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-286; Highland Brookfield Well #5 (Highland Field Services, LLC)


Appeal No. 974: L.D. Jenkins V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission Aug 2019

Appeal No. 974: L.D. Jenkins V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2019-69 & 2019-77; Smith East Unit & Smith Unit (Chesapeake Exploration)


Appeal No. 0950: General Electric Company V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission Aug 2019

Appeal No. 0950: General Electric Company V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2017-347


Appeal No. 0973: L.D. Jenkins V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission Aug 2019

Appeal No. 0973: L.D. Jenkins V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2019-69 & 2019-77; Smith East Unit & Smith Unit (Chesapeake Exploration)


Appeal No. 0915: Dynamerican, Llc, Et. Al V. Division Of Oil & Gas Resources Management And American Energy - Utica, Llc Nka Ascent Resources - Utica, Llc., Ohio Oil & Gas Commission Jun 2019

Appeal No. 0915: Dynamerican, Llc, Et. Al V. Division Of Oil & Gas Resources Management And American Energy - Utica, Llc Nka Ascent Resources - Utica, Llc., Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2016-47 (American Energy - Utica nka Ascent Resources - Utica; Henry LND GR Unit)


Appeal No. 0962: Jeffrey D. Kuster, On Behalf Of David Kuster, Deceased V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission Jun 2019

Appeal No. 0962: Jeffrey D. Kuster, On Behalf Of David Kuster, Deceased V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-114


Appeal No. 0966: Hardesty Production V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission Apr 2019

Appeal No. 0966: Hardesty Production V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-242


(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta Jan 2019

(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.


Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends ...


Striking A Grotian Moment: How The Syria Airstrikes Changed International Law Relating To Humanitarian Interventions, Michael P. Scharf Jan 2019

Striking A Grotian Moment: How The Syria Airstrikes Changed International Law Relating To Humanitarian Interventions, Michael P. Scharf

Faculty Publications

In the years since the 1999 NATO airstrikes on Serbia to prevent ethnic cleansing of the Kosovar Albanians, international law has been moving in fits and starts toward recognition of a limited right of humanitarian intervention in the absence of Security Council approval. But all the ingredients necessary for the crystallization of customary international law were not present until the April 14, 2018 U.S./French/U.K. airstrikes on Syrian chemical weapons facilities. This article examines the unique features of the April 2018 airstrikes – the context of a crisis of historic proportions, the focus on preventing the use of ...


Conflicts Of Interest And Law-Firm Structure, Cassandra Burke Robertson Jan 2019

Conflicts Of Interest And Law-Firm Structure, Cassandra Burke Robertson

Faculty Publications

Business and law are increasingly practiced on a transnational scale, and law firms are adopting new business structures in order to compete on this global playing field. Over the last decade, global law firms have merged into so-called “mega-brands” or “mega-firms”—that is, associations of national or regional law firms that join together under a single brand worldwide. For law firms, the most common mega-firm structure has been the Swiss verein, though the English “Company Limited by Guarantee” structure is growing in popularity as well, as is the similar “European Economic Interest Grouping.” All of these structures allow related entities ...


Due Process And Denaturalization, Cassandra Burke Robertson, Irina D. Manta Jan 2019

Due Process And Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Policies restricting immigration and citizenship play a significant role in the current political environment. The implementation of the travel ban, litigation over DACA, and a narrowing of citizenship opportunities for members of the armed forces have all made headlines in the last two years. Along with those policies, the Trump administration has also significantly increased efforts to strip citizenship from individuals alleged to have gained it improperly.

Revocation of citizenship used to focus primarily on former Nazis and other war criminals hiding from justice in the United States. Now, through programs called Operation Janus and Operation Second Look, the Trump ...


Portable Medical Order Sets (Polst®): Ethical And Legal Landscape, Sharona Hoffman Jan 2019

Portable Medical Order Sets (Polst®): Ethical And Legal Landscape, Sharona Hoffman

Faculty Publications

Anyone who has observed the dying of a loved one or who has thought about medical care in the final months of life may be concerned about end-of-life care. How can individuals ensure that their care fits their needs and preferences if they cannot express these because of dementia, confusion, or other frailties? Some worry that they will receive care that is painful and aggressive in the last stages of disease even though they would prefer comfort care only. By contrast, others worry that physicians will withhold therapeutic care because they assume that such care is unwanted by patients who ...


Case Western University Law School Library: 125 Years, Joseph A. Custer Jan 2019

Case Western University Law School Library: 125 Years, Joseph A. Custer

Faculty Publications

Professor Custer describes the first 125 years of the Case Western Law School Library’s history, including its collections, facilities, renovations, staff, budget, evolving research and automation technologies, contributions to legal instruction, and involvement with technological advances in the legal information community.


Unicorn Stock Options - Golden Goose Or Trojan Horse?, Anat Alon-Beck Jan 2019

Unicorn Stock Options - Golden Goose Or Trojan Horse?, Anat Alon-Beck

Faculty Publications

Large privately held startups valued at $1 billion or more (“unicorns”) are dealing with employees’ conflicts of expectations due to the illiquidity of the shares of stock acquired upon exercise of their options.

Until about eight years ago, many talented workers chose to work for a startup company for a lower cash salary combined with a substantial stock option grant, and the dream of cashing out for a large sum of money after an initial public offering (“IPO”) of the startup’s stock.

Today, unicorns remain private for extended periods of time in part because they are often no longer ...


The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari Jan 2019

The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari

Faculty Publications

Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across de- vices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered. While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as ...


Time Is Not On Our Side: Why Specious Claims Of Collective Bargaining Rights Should Not Be Allowed To Delay Police Reform Efforts, Ayesha Bell Hardaway Jan 2019

Time Is Not On Our Side: Why Specious Claims Of Collective Bargaining Rights Should Not Be Allowed To Delay Police Reform Efforts, Ayesha Bell Hardaway

Faculty Publications

Many view the passage of the Violent Crime Control and Law Enforcement Act of 1994 as the best chance for police departments to make meaningful and lasting improvements. That legislation provides the federal government with the authority to investigate and sue local law enforcement agencies for engaging in a pattern or practice of policing that violates the rights of individuals. However, police unions have attempted to intervene in structural reform litigation designed to remedy unconstitutional policing practices. Those attempts have largely been based on employment rights conferred through collective bargaining laws and similar employment protections. The unions argue that the ...


Hipaa's Privacy Rule And State Privacy Laws: Roadblocks To Medical Organizations' Self-Policing Expert Medical Testimony, Miles J. Zaremski, Douglas M. Belofsky Jan 2019

Hipaa's Privacy Rule And State Privacy Laws: Roadblocks To Medical Organizations' Self-Policing Expert Medical Testimony, Miles J. Zaremski, Douglas M. Belofsky

Alumni Publications

As part of the wave of medical malpractice reforms over the last several decades, efforts were initiated to ensure the reliability and credibility of expert witness opinion and testimony, which is the sine qua non of necessary proof for any such claim or lawsuit. Governing bodies of professional medical organizations and societies have crafted rules and regulations for their members that wish to provide expert medical witness testimony. Where such testimony does not conform to these organizations’ standards, sanctions can be levied, including membership expulsion. Such self-policing has found favor with courts.

Before sanctions are imposed, however, necessary administrative investigations ...


What Genetic Testing Teaches About Long-Term Predictive Health Analytics Regulation, Sharona Hoffman Jan 2019

What Genetic Testing Teaches About Long-Term Predictive Health Analytics Regulation, Sharona Hoffman

Faculty Publications

The ever-growing phenomenon of predictive health analytics is generating significant excitement, hope for improved health outcomes, and potential for new revenues. Researchers are developing algorithms to predict suicide, heart disease, stroke, diabetes, cognitive decline, future opioid abuse, and other ailments. The researchers include not only medical experts, but also commercial enterprises such as Facebook and LexisNexis, who may profit from the work considerably. This Article focuses on long-term disease predictions (predictions regarding future illnesses), which have received surprisingly little attention in the legal and ethical literature. It compares the robust academic and policy debates and legal interventions that followed the ...


Quieting The Court: Lessons From The Muslim-Ban Case, Avidan Cover Jan 2019

Quieting The Court: Lessons From The Muslim-Ban Case, Avidan Cover

Faculty Publications

The Supreme Court’s Muslim-ban decision in Trump v. Hawaii and the confirmation of Brett Kavanaugh to the Supreme Court call into question the civil rights litigation enterprise insofar as it challenges U.S. government’s national security and immigration policies. Litigants and advocacy organizations should employ an array of strategies and tactics to avoid the Court’s rulings that almost uniformly defer to, and thus validate, the government’s national security and immigration practices.


This article maintains that The Muslim-Ban Case was a predictable outgrowth of the Supreme Court’s national security-immigration jurisprudence that champions executive power at the ...


Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr. Jan 2019

Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr.

Faculty Publications

The Supreme Court has held that race may be considered as “a factor of a factor of a factor” within a “holistic” program of university admissions if the university can satisfy a heavy burden of proving that the program is “narrowly tailored” to achieve the educational benefits of diversity. The Court has listed the desired benefits of racial diversity, but it has not discussed what evidence a university needs to prove that its program is “narrowly tailored” to achieve those benefits.

This article addresses that issue. The field of psychology offers abundant research about the process of judgment and decision-making ...


Clown Eggs, David Fagundes, Aaron K. Perzanowski Jan 2019

Clown Eggs, David Fagundes, Aaron K. Perzanowski

Faculty Publications

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its sur- rounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians ...


Delegation And Time, Jonathan H. Adler, Christopher J. Walker Jan 2019

Delegation And Time, Jonathan H. Adler, Christopher J. Walker

Faculty Publications

Most concerns about delegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions made by such agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic-deficit concerns. The same is true of the judicially created non-delegation canons, such as the major questions doctrine and other clear-statement rules. This Article addresses a different, under-explored dimension of the delegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period become a ...


Appeal No. 0907: Donald E. Wood, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission Oct 2018

Appeal No. 0907: Donald E. Wood, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2015-345 (Financial Assurance)


Appeal No. 0930: M-I L.L.C. Dba M-S Swaco, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission Oct 2018

Appeal No. 0930: M-I L.L.C. Dba M-S Swaco, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2016-267 (Temporary Authorization; Strasburg Facility)


Appeal No. 0964: Kevin Simballa, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission Oct 2018

Appeal No. 0964: Kevin Simballa, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-231 (Auer North Unit; Hilcorp Energy)