Digital Commons Network^™

Reinvigorating Commonality: Gender & Class Actions, Brooke D. Coleman, Elizabeth G. Porter

Faculty Articles

The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961 — one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman — the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, …

Missed Opportunities In The International Law Commission's Draft Articles On The Expulsion Of Aliens, Won Kidane

Faculty Articles

No abstract provided.

Comments On Restatement Of Employment Law (Third), Chapter 1, Charlotte Garden, Joseph E. Slater

Faculty Articles

This article addresses the Restatement of Employment Law, Chapter 1, on the “Existence of Employment Relationship.” The Labor Law Group previously responded to a draft version of this chapter. This article will not revisit all the considerations discussed in that article. Instead, it will focus on three issues within this topic that have become increasingly important in recent years that the Restatement does not adequately address. These three issues are: the joint employer relationship; the use of unpaid interns; and the rise of the “gig” economy, with its attendant questions about employee status in enterprises such as Uber or Lyft. …

The Seattle Solution: Collective Bargaining By For-Hire Drivers And Prospects For Pro-Labor Federalism, Charlotte Garden

Faculty Articles

Well before the 2016 presidential election, worker movements like “Fight for Fifteen” had begun to rack up wins in left-leaning states and cities on issues including the minimum wage and paid sick time. Then the election made necessity out of virtue, with states and cities adopting a key role in resisting policies of the Trump administration. Now, with the Trump National Labor Relations Board and Department of Labor starting to roll back pro-worker gains made during the Obama Administration, this emerging progressive federalism has only become more important for improving working conditions and expanding opportunities for workers’ collective action. This …

A License To Infringe: The Tenth Circuit's Reliance On The Reasonable Observer Test To Determine Symbolic Speech Protection Of License Plates, Hayley Stillwell

Faculty Articles

No abstract provided.

Fifty Years Later: Miranda & The Police, Tracy Hresko Pearl

Faculty Articles

This symposium asks us to reflect upon the fifty years after Miranda v. Arizona was handed down and to assess what impact Miranda had on law enforcement in this country. More colloquially, it asks whether, on balance, Miranda has been “good news” or “bad news” for the police. As I began to work on answering this question, however, I was troubled by the assumptions seemingly lurking within that question: (1) the assumption that Miranda has mattered at all to the police, (2) the assumption that it has mattered because it has somehow changed the behavior of police and/or the behavior …

On Health, Law, And Religion, Stacey A. Tovino

Faculty Articles

The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide …

Teaching The Hipaa Privacy Rule: Illustrative Comparisons, Stacey A. Tovino

Faculty Articles

Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include, but certainly are not limited to, a final rule published on January 25, 2013, governing the use and disclosure of protected health information by covered entities and their business associates (the …

The Other Rights Revolution: Conservative Lawyers And The Remaking Of American Government (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein

Faculty Articles

This Article proposes that the final provisions of Rule 407 and 411, which provide a list of examples of permitted purposes for which a court may admit evidence, are asking for trouble--specifically, the trouble that courts will interpret the list not as examples, but as a specially enumerated, exhaustive list of exceptions.

Reconsidering Pre-Indictment Publicity: Racialized Crime News, Grand Juries And Tamir Rice, Bryan Adamson

Faculty Articles

"This Article examines pre-indictment publicity or, more accurately, grand jury subject-matter relevant media publicity. It examines the Rice shooting and Loehmann-Garmback grand jury process to determine, from a legal and policy perspective, what should be done to safeguard the integrity of the grand jury process in which police officers are investigatory targets for alleget use of lethal force, when the controversy is racially-charged, and where the media demonstrates pro-law enforcement and anti-minority bias."

Tribute To Professor Jonathan L. Entin, Bryan Adamson

Faculty Articles

The editors of the Case Western Reserve Law Review respectfully dedicate this issue to Professor Jonathan L. Entin.

The Value Of Online Law Review Supplements For Junior And Senior Faculty, Steven Bender

Faculty Articles

The article asserts that scholarly ideas matter more than form and that online supplement scholarship can be counted and valued for these institutional purposes.

Article 7 Meets Chapter 11: Exploring The Debtor's Request To Pay Prepetition Claims Of Shippers And Warehouses, Diane Lourdes Dick

Faculty Articles

No abstract provided.

Who Owns Human Capital?, Lily Kahng

Faculty Articles

This Article analyzes the tax law's capital income preference through the lens of intellectual capital, an increasingly important driver of economic productivity whose value derives primarily from workers' knowledge, experience and skills. The Article discusses how business owners increasingly are able to "propertize" labor into intellectual capital-to capture the returns on their workers' labor by embedding it in intellectual property and to restrict workers' ability to employ their skills and knowledge elsewhere. The Article then shows how the tax law provides significant subsidies to the process of propertization and thereby contributes to the inequitable distribution of returns between business owners …

Judges Need To Exercise Their Responsibility To Require That Eligible Defendants Have Lawyers, Robert C. Boruchowitz

Faculty Articles

There are many courts in the United States, particularly misdemeanor courts, in which accused persons appear and often plead guilty without ever receiving the advice of counsel, even when they are eligible for a public defender. In various states, between twenty-five and sixty-eight percent of the defendants in misdemeanor cases do not have lawyers. In many courts in South Carolina, there is no public defender ever available. The American Civil Liberties Union (“ACLU”) has filed a class action lawsuit against two South Carolina cities, alleging that they are unconstitutionally denying counsel to eligible accused persons.

There is no question that …

Dismissals As Justice, Anna Roberts

Faculty Articles

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of de minimis prosecutions, these exercises of judicial power teach two important lessons. First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubber-stamp prosecutorial decision making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its …

Laudato Si': Engaging Islamic Tradition And Implications For Legal Thought, Russell Powell

Faculty Articles

This Essay considers the 2015 papal encyclical Laudato si's' engagement with Islamic religious and legal traditions in order to identify shared ethical and jurisprudential commitments and their broader implications for law. By 2025, Muslims will constitute 30% of the population of the world,2 while Catholics will likely be between 15% and 20%. The history of interreligious conflict is long and enduring. In many cases, legal structures related to security and immigration have exacerbated these tensions, prompting uncertainty and instability.5 Laudato si' is a strategic document, intended to address climate change, increasing economic inequity, and interreligious conflict by opening a space …

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

Faculty Articles

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 …

China And India's Differing Investment Treaty And Dispute Settlement Experiences And Implications For Africa, Won Kidane

Faculty Articles

This article examines China’s and India’s differing investment treaty and dispute settlement experiences and the resulting implications for Africa. It attempts to answer the question of whether there is evidence of China’s and India’s attempt to take advantage of the default structural imbalance enabled by centuries of international investment laws and institutions that favor the investor. The Article begins by presenting the background of the current economic reality and trends that necessitate the evaluation of the existing rules and institutions. It then presents a detailed assessment of this phenomenon by focusing on the investment cases brought against India for context, …

The Myth Of Merit: The Garland Nomination, The Friendly Legacy, And The Slipperiness Of Appellate Court Qualifications, Andrew Siegel

Faculty Articles

No abstract provided.

Procedural Justice And The Discursive Construction Of Narratives At Trial: Global Perspectives, Janet Ainsworth

Faculty Articles

The structure and practices of justice systems in many parts of the world are undergoing what can be seen as a kind of revolution – and one not merely of professional interest to lawyers and judges. What we are seeing in nation after nation is a move from inquisitorial models of legal adjudication toward adversarial models. The discourses of adjudication in these contrasting types of trials are changing the ways in which lawyers, judges, and witnesses come to see their role in the process. The change has implications that extend far beyond the courtrooms in which trials play out, however. …

Ldcs’ Unique Challenges Of Getting The Composition Of Arbitral Tribunals Right, Won Kidane

Faculty Articles

No abstract provided.

Reforming Military Justice: An Analysis Of The Military Justice Act Of 2016, David A. Schlueter

Faculty Articles

The 2016 amendments to the Uniform Code of Military Justice (“UCMJ”) amounted to a sea change in American military justice. The Military Justice Act of 2016—a major reform of the Uniform Code of Military Justice—is set out in Division E of the National Defense Authorization Act for Fiscal Year 2017, and was signed into law by the President on December 23, 2016. Most of the amendments to the UCMJ addressed in this article will not become effective for some time—perhaps not until January 1, 2019 and in the interim, the current provisions of the UCMJ will continue to apply. Overall, …

State Bar Efforts To Deny Accreditation To Faith-Based Cle Ethics Programs Sponsored By Religiously Affiliated Law Schools, Bill Piatt

Faculty Articles

Religiously affiliated law schools focus on the integration of faith in the formation of future attorneys and leaders. Yet our students are only our students for three years. We can extend our influence and continue to provide a faith-based perspective to them and to other attorneys during the thirty, forty, or more years of their careers by offering continuing legal education (CLE) courses, which bring attorneys and judges together to provide a model for incorporating faith and morality into our professional roles. However, CLE programs must receive accreditation by state authorities if participants are to receive credit for them. Recently, …

Assessing The Viability Of Race-Neutral Alternatives In Law School Admissions, Eboni Nelson, Ronald Pitner, Carla Pratt

Faculty Articles

The past several years have been challenging times for law schools. Many have experienced declines in student enrollment due to a shrinking applicant pool. The declining number of applicants presents increased challenges for law schools, particularly concerning their efforts to educate students in racially diverse learning environments. In light of recent challenges to the constitutionality of race-conscious affirmative action, it is imperative to engage in a project, such as this, that examines the relationship between racial categories and race-neutral identity factors in law school admissions. Understanding the relationship between racial groups and certain race-neutral identity factors will help law schools …

Active Judging And Access To Justice, Anna Carpenter

Faculty Articles

"Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Qualitative Diversity: Affirmative Action's New Reframe, Eang Ngov

Faculty Articles

No abstract provided.

Twombly And Iqbal At The State Level, Roger Michalski, Abby Wood

Faculty Articles

This article contributes to the empirical literature on pleading standards by studying the effect of Twombly and Iqbal at the state level. States account for the majority of civil litigation, yet they are understudied doctrinally and empirically. When we consider pleading at the state level, we can leverage differences across space and time in a way that is impossible with studies of federal courts. Using an array of principled empirical approaches on the best available data, we find no evidence that raising pleading standards affected plaintiff behavior. We observe no decrease in filings and no significant change in complaint length, …

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

Faculty Articles

No abstract provided.