Digital Commons Network^™

A Constitutional Theory Of Habeas Power, Lee B. Kovarsky

Faculty Scholarship

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as 'lawful' custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. 'A Constitutional Theory of Habeas Power' is an inquiry into the newly minted principle that the federal Constitution guarantees some …

Specialization In Law And Business: A Proposal For A J.D./"Mbl" Curriculum, Robert J. Rhee

Faculty Scholarship

This paper provides the specific details of how an interdisciplinary program of law and business can be structured in a three-year J.D. program. The program envisioned is a J.D./”M.B.L.”, which is distinguished from the better known J.D./M.B.A. The “M.B.L.” stands for “masters of business law,” which is simply an idea tag. The moniker can represent a program conferring a supplemental degree in law and business, or simply a specialized course of study to complete a J.D. Either way, the program is an interdisciplinary program of concentrated study in core transaction-oriented law courses and core business courses. The most effective education …

Philanthropic Innovation And Creative Capitalism: A Historical And Comparative Perspective On Social Entrepreneurship And Corporate Social Responsibility, Shruti Rana

Faculty Scholarship

Each generation creates its own philanthropic bodies, with novel structures promising both increased sustainability and efficiency. From the seventeenth-century financial imperialists to today’s internet entrepreneurs, innovation, wealth, and philanthropy have moved in tandem, shaping one another and resulting in new philanthropic forms.

The most recent of these emerging entities is the “for-profit charity,” which relies on market profits and market principles to replace donations and to maximize its impact. Current philanthropic literature praises these market-based structures as revolutionary innovations that enhance long-term sustainability, and the focus of legal reforms falls along these lines. Yet the legal literature fails to fully …

Waiting For Leviathan: A Note On Modern Wo'er Trading Co Ltd V Ministry Of Finance Of The People's Republic Of China, Daniel J. Mitterhoff

Faculty Scholarship

This article analyzes a Chinese bid protest that has taken nearly seven years to adjudicate, yet as of this writing, no institution of the Chinese state has evaluated the substance of the protester’s bid challenge. Instead, the supplier’s complaint has been snared in a grey area between two of China’s multiple bid protest systems, burdening the supplier to push China’s administrative state to respond. The saga of Modern Wo’Er Trading Company Ltd. v The Ministry of Finance of the People’s Republic of China raises compelling questions about the relationship of China’s 1999 Tender and Bidding Law and China’s 2002 Government …

The Politics Of Religious Establishment: Recognition Of Muslim Marriages In South Africa, Peter G. Danchin

Faculty Scholarship

This paper explores the normative dissonances and antinomies generated by the politics around religious establishment by examining post-apartheid law reform efforts in South Africa to recognize Muslim marriages. Since the late 1990s, the South African Law Reform Commission has initiated various projects to recognize the claims of and redress past discrimination against different religious communities, including tribal groups living under customary law and religious minorities with their own family and personal status laws. It is striking how the norms and assumptions underpinning this debate differ from engagements involving the claims of religious communities in Europe and North America where broadly …

Tackling "Arithmophobia": Teaching How To Read, Understand, And Analyze Financial Statements, Paula J. Williams, Kris Anne Tobin, Eric Franklin, Robert J. Rhee

Faculty Scholarship

This discussion presents different ideas on how to teach accounting and practical finance to law students.

Has The Roberts Court Plurality's Colorblind Rhetoric Finally Broken Brown's Promise?, Phoebe A. Haddon

Faculty Scholarship

This Essay examines the continuing significance of the Keyes decision to the judicial vision of equality and racial isolation in public education. By comparing efforts to promote educational equality from the Keyes era through today, this Essay asserts that the judiciary has wrongly embraced a colorblind interpretation of the Equal Protection Clause. In so doing, courts have impeded the progress of children in Denver and around the country, ignored highly instructive social science studies on the benefits of desegregation, and broken the constitutional promise of equal citizenship. For future policy makers and lawyers to address these persistent problems, legal educators …

Coping With The America Invents Act: Patent Challenges For Startup Companies, Patricia E. Campbell

Faculty Scholarship

No abstract provided.

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale, Elizabeth A. Reilly, Jeffery Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Faculty Scholarship

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …

The Paths People Take Through Teaching Center Services: A Descriptive Analysis, Kathryn M. Plank, Alvin S. Mares

Faculty Scholarship

Teaching centers offer a variety of services, ranging from teaching orientations and one-time workshops to intensive programs such as learning communities to individual consultations. However, most instructors do not participate in all categories of service a center offers; rather, they create their own paths through various combinations and sequences of programs. What do we know about these pathways, and what can we learn from the patterns of use? This article shares findings from an analysis of several years of data to learn more about the sequence in which instructors experience educational development and to discuss the implications of these findings.

Team Teaching, Kathryn M. Plank

Faculty Scholarship

Team teaching has the potential to have a profound impact on both teaching and learning. Many who have taught as part of a team report the break from solitary practice brings renewed excitement for teaching and the course that makes them better teachers. It also creates a learning environment in which students can explore multiple perspectives and ways of knowing. Of course, along with the benefits come many challenges. This paper shares some of the advice gleaned from those who have written about their team teaching experiences to help others make the most of the opportunity.

Legal Education In Disruption: The Headwinds And Tailwinds Of Technology, Jon M. Garon

Faculty Scholarship

By harnessing improvements on communications and computational systems, law firms are producing a revolution in the practice of law. Self-help legal manuals have transformed into sophisticated interactive software; predictive coding can empower clients to receive sophisticated legal advice from a machine; socially mediated portals select among potential lawyers and assess the quality of the advice given; and virtual law firms threaten to distintermediate the grand edifices of twentieth century Big Law. These changes may profoundly restructure the legal practice, undermining the business model for many solo and small firm practices. This paper focuses on the implications of these profound disruptive …

Evidence, Probability, And The Burden Of Proof, Alex Stein, Ronald J. Allen

Faculty Scholarship

No abstract provided.

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Faculty Scholarship

No abstract provided.

Constructing Modern-Day U.S. Legal Education With Rhetoric: Langdell, Ames, And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli

Faculty Scholarship

This article explains how lawyers like Christopher Columbus Langdell and James Barr Ames, a disciple of Langdell, employed rhetoric between 1870, when Langdell assumed the deanship at Harvard Law School, and 1920, when law had emerged as a credible academic field in the United States, to construct a persona, that of a scholar, appropriate for the law professor situated within the university. To do so, the article contextualizes the rhetoric with historical background on the law professor and legal education, draws upon rhetorical theory to give an overview of persona theory and persona analysis as a means of conducting the …

Instrumentalist And Holmesian Voices In The Rhetoric Of Reapportionment: The Opinions Of Justices Brennan And Frankfurter In Baker V. Carr, Carlo A. Pedrioli

Faculty Scholarship

In his autobiography, Chief Justice Earl Warren described Baker v.Carr as “the most important case of [his] tenure on the Court.” Following Brown v. Board of Education by eight years, Baker was the second “blockbuster” case of the Warren Court. Warren felt that, if the progeny of Baker had preceded Brown, Brown would have been unnecessary. As with other major Supreme Court cases, Baker featured rhetoric from highly influential justices, two of whom in this case were Justice William Brennan and Justice Felix Frankfurter. Justice Brennan would write the groundbreaking opinion for the Court that would be part of “the …

Will Law Firms Go Public, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Patenting Nature: A Problem Of History, Christopher Beauchamp

Faculty Scholarship

No abstract provided.

What's Wrong With Stereotyping?, Anita Bernstein

Faculty Scholarship

No abstract provided.

Originalism And The Other Desegregation Decision, Ryan Williams

Faculty Scholarship

No abstract provided.

The Problem Of Holdout Creditors In Eurozone Sovereign Debt Restructuring, Mitu Gulati, Lee C. Buchheit, Ignacio Tirado

Faculty Scholarship

The Eurozone official sector has declared that the belated restructuring of Greek bonds held by private sector creditors in 2012 was a “unique and exceptional” event, never, ever to be repeated in any other Eurozone country. Maybe so. But if this assurance proves in time to be as fragile as the official sector’s prior pronouncements on the subject of “private sector involvement” in Eurozone sovereign debt problems, any future Eurozone debt restructuring will be surely plagued by the problem of non-participating creditors --- holdouts. Indeed, it is the undisguised fear of holdouts and the prospect of a messy, Argentine-style debt …

Globalization And Law: Law Beyond The State, Ralf Michaels

Faculty Scholarship

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …

The Compromised Cargo Container: Terror In A Box, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Diversity In The Legal Profession Moving From The Rhetoric To Reality, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

A Look Inside The Butler's Cupboard: How The External World Reveals Internal State Of Mind In Legal Narratives, Cathren Koehlert-Page

Faculty Scholarship

No abstract provided.

Consideration For A Price: Using The Contract Price To Interpret Ambiguous Contract Terms, Donald J. Smythe

Faculty Scholarship

No abstract provided.

Why Federal Rule Of Evidence 403 Is Unconstitutional, And Why That Matters, Kenneth S. Klein

Faculty Scholarship

It might seem at best quixotic, and at worst absurd, to assert that Federal Rule of Evidence 403-an iconic evidentiary exclusionary rule providing that relevant evidence can be excluded if it is too time-consuming or distracting-is unconstitutional. Yet, if the Sixth and Seventh Amendments to the Constitution-respectively preserving the right to a criminal jury and a civil jury- are to be taken seriously, that conclusion not only is plausible, but perhaps inescapable. More surprisingly and consequentially, deep thinking about the constitutionality of FRE 403 exposes that there may be constitutional concerns with large swaths of the Federal Rules of Evidence, …

On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye

Faculty Scholarship

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …

Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill C. Engle

Faculty Scholarship

American women and children have been poor in exponentially greater numbers than men for decades. The problem has historic, institutional roots which provide a backdrop for this article’s introduction. English and early U.S. legal systems mandated a lesser economic status for women. Despite numerous legal changes aimed at combating the financial disadvantage of American women and children, the problem is worsening. American female workers, many in low-paying job sectors, earn roughly twenty percent less than their male counterparts. Nearly forty percent of single mothers and their children subsist below the poverty level. The recession exacerbated this problem, mostly because unemployment …

Why We Have No Theory Of European Private Law Pluralism, Ralf Michaels

Faculty Scholarship

The recent popularity of legal pluralism has now reached the area of European private law. In this paper Michaels scrutinizes the concepts of legal pluralism used by three of its most prominent proponents: Pierre Legrand, Jan Smits, and Thomas Wilhelmsson. He does not offer fully-fledged criticism of their theories (each of which are among the most fascinating and helpful in the European private law debate) but only address their use of ideas of legal pluralism, and the relation of these ideas with the legal pluralism debate. His analysis shows not only that these three use sharply different concepts of legal …