Digital Commons Network^™

A Diversity Approach To Parenthood In Family Life And Family Law, Linda C. Mcclain

Faculty Scholarship

Extraordinary changes in patterns of family life and family law have dramatically altered the boundaries of parenthood and opened up numerous questions and debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Is parenthood separable from marriage or couplehood when society seeks to foster childrens well-being? What is the better model of parenthood from the perspective of child outcomes? Intense disagreements over the definition and future of marriage often rest upon conflicting convictions about parenthood. What Is Parenthood? asks bold and direct questions about parenthood in contemporary society, and it brings together …

Tidying Up The Internet: Take Down Of Unauthorized Content Under Copyright, Trademark And Defamation Law, Jon M. Garon

Faculty Scholarship

As business clients make available an ever-increasing array of online content and services, the specter of liability for inappropriate online content looms large. Still, U.S. federal law protects businesses that adopt appropriate take-down regimes for copyright infringement, defamatory content, and even improper use of competitor’s trademarks. As business clients make available an ever-increasing array of online content and services, the specter of liability for inappropriate online content looms large. Still, federal law protects businesses that adopt appropriate take-down regimes for copyright infringement, defamatory content, and even improper use of competitor’s trademarks. While the percentage of complaints suggests that the notice-and-take-down …

Introduction: Wounds Of War: Meeting The Needs Of Active-Duty Military Personnel And Veterans With Post-Traumatic Stress Disorder, Kathy L. Cerminara

Faculty Scholarship

Kathy Cerminara, Introduction: Wounds of War: Meeting the Needs of Active-Duty Military Personnel and Veterans with Post-Traumatic Stress Disorder, 37 Nova Law Review 439 (2013).

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 …

The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin

Faculty Scholarship

Why do proponents of Transformative Dispute Resolution (TDR) defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self. But TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory’s capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims and craft a more …

Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik

Faculty Scholarship

The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure …

Equality Standards For Health Insurance Coverage: Will The Mental Health Parity And Addiction Equity Act End The Discrimination?, Ellen M. Weber

Faculty Scholarship

Congress enacted the Mental Health Parity and Addiction Equity Act in 2008 to end discriminatory health insurance coverage for persons with mental health and substance use disorders in large employer health plans. Adopting a comprehensive regulatory approach akin to other civil rights laws, the Parity Act requires “equity” in all plan features, including cost-sharing, durational limits and, most critically, the plan management practices that are used to deny many families medically necessary behavioral health care. Beginning in 2014, all health plans regulated by the Affordable Care Act must also comply with parity standards, effectively ending the second-class insurance status of …

Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

Faculty Scholarship

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …

Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas

Faculty Scholarship

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …

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 …

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

Faculty Scholarship

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

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 Coming Constitutional Yo-Yo? Elite Opinion, Polarization, And The Direction Of Judicial Decision Making, Mark A. Graber

Faculty Scholarship

This Article offers a more sophisticated account of elite theory that incorporates the crucial insights underlying claims that Justices with life tenure will protect minority rights and claims that the Supreme Court follows the election returns. Put simply, the direction of judicial decision making at a given time reflects the views of the most affluent and highly educated members of the dominant national coalition. The values that animate the elite members of the dominant national coalition help explain the direction of judicial decision making for the last eighty years. During the mid-twentieth century, most Republican and Democratic elites held more …

The Unfinished Journey - Education, Equality And Martin Luther King, Jr., Revisited, Taunya Lovell Banks

Faculty Scholarship

An educated society is important to the survival of a democracy, a sentiment echoed by the Supreme Court in Brown v. Board of Education. Today most commentators concede that the implementation of Brown was a failure and that over the years there has been retrenchment. Although America’s schools are no longer racially segregated by law, a substantial percentage of school children are consigned to racially isolated schools. While commentators continue to argue for racially integrated schools, this article argues that racial integration alone is insufficient--schools must receive adequate financial resources and be even more diverse socio-economically to adequately prepare America’s …

Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg

Faculty Scholarship

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts.

Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the …

Privacy, Antitrust, And Power, Frank Pasquale

Faculty Scholarship

When a dominant internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternatives on the platform level.

To the extent a company creates profiles of individuals and collects data on them, a third party ought to be collecting reports from the company on how …

The Future Of Hipaa In The Cloud, Frank Pasquale, Tara Adams Ragone

Faculty Scholarship

This white paper examines how cloud computing generates new privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current implementation of Meaningful Use rules for health information technology and the Omnibus HIPAA Rule in health care generally, the stage is now set for a distinctive law of “health information” to emerge. HIPAA has come of age of late, with more aggressive enforcement efforts targeting wayward healthcare providers and entities. Nevertheless, more needs to be done to assure that health privacy and all the values …

The Supreme Court, Cafa, And Parens Patriae Actions: Will It Be Principles Or Biases?, Donald G. Gifford, William L. Reynolds

Faculty Scholarship

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state …

Alternative Dispute Resolution And Public Confidence In The Judiciary: Chief Judge Bell's "Culture Of Conflict Resolution", Deborah Thompson Eisenberg, Rachel Wohl, Toby Treem Guerin

Faculty Scholarship

Chief Judge Robert M. Bell has been a visionary leader in the development of alternative dispute resolution (“ADR”). His innovations have made Maryland a model state for conflict resolution programs in the courts and, uniquely, beyond the courthouse doors in a broad range of arenas. This article provides an overview of the “culture of conflict resolution” he ignited in the judiciary and in communities.

Love And Contracts In Don Quixote, Martha M. Ertman

Faculty Scholarship

Viewing love as a contract seems, initially, like mistaking windmills for giants, or a peasant girl for a grand lady. This chapter seeks, like Don Quixote, to convince readers to suspend their practiced views of everyday relationships in order to see them in a new light. What seems crazy at first glance may come to look as good, and sometimes better, than the more conventional view. As a law professor, I usually write about love and contracts by focusing on legal opinions and statutes, and recently I have added real-life stories from books and newspapers, as well as my …

Transcription Of 2013 Chapman Law Review Symposium: "The Future Of Law, Business, And Legal Education: How To Prepare Students To Meet Corporate Needs", Leo E. Strine Jr., Bradley Borden, Robert J. Rhee, Tania King, Lee Cheng

Faculty Scholarship

No abstract provided.

The Right To Quantitative Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …

Future Conduct And The Limits Of Class-Action Settlements, James Grimmelmann

Faculty Scholarship

This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.

Courts should guard against the dangers of future-conduct releases with …

Criminal Records, Race And Redemption, Michael Pinard

Faculty Scholarship

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals …

Transgender People, Intimate Partner Abuse, And The Legal System, Leigh S. Goodmark

Faculty Scholarship

The unique experiences of transgender persons subjected to abuse have not been the focus of legal scholarship; instead, the experiences of transgender people are often subsumed in the broader discourse around domestic violence in the lesbian, gay, bisexual, and transgender (LGBT) community. This dearth of legal scholarship is not surprising given how little research of any kind exists on how transgender people experience intimate partner abuse. This is the first law review article to concentrate specifically on intimate partner abuse and the transgender community. The Article begins by discussing the difficulties of engaging in scholarship around this topic, noting the …

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.

Meeting The Challenges Of Adoption In An Internet Age, Mary Kate Kearney, Arrielle Millstein

Faculty Scholarship

No abstract provided.