Law Commons^™

Recognizing Taxpayers As Stakeholders In Municipal Bankruptcies, Diane Lourdes Dick

Faculty Articles

No abstract provided.

International Environmental Law, Environmental Justice, And The Global South, Carmen Gonzalez, Sumudu Atapattu

Faculty Articles

No abstract provided.

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."

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 …

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, …

Disrupting Work Law: Arbitration In The Gig Economy, Charlotte Garden

Faculty Articles

No abstract provided.

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Faculty Articles

Environmental justice scholars and activists coined the terms “environmental racism” to describe the disproportionate concentration of environmental hazards in neighborhoods populated by racial and ethnic minorities. Having exhausted domestic legal remedies (or having concluded that these remedies are unavailable), communities of color in the United States are increasingly turning to international human rights law and institutions to challenge environmental racism.

However, the United States has ratified only a handful of human rights treaties, and has limited the domestic application of these treaties through reservations and declarations that preclude judicial enforcement in the absence of implementing legislation. Indeed, the U.S. has …

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, …

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 …

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

Faculty Articles

No abstract provided.

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 …

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

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. …

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.

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 …

Trademark Goodwill As A Public Good: Brands And Innovations In Corporate Social Responsibility, Margaret Chon

Faculty Articles

Powerful brands dominate our transnational landscapes. Brand value-referred to in law as trademark goodwill-is co-created by trademark owners and the consumers of their products and services. Commonly defined as all possible sources of consumer patronage, trademark goodwill is critically important not only for business ability to attract and retain customers, but also for its regulatory capacity to signal process characteristics such as environmental impact or labor standards. This Article focuses on the role of trademark goodwill in signaling sustainability standards as key informational components of corporate social responsibility. In this view of trademark goodwill, brands potentially provide highly public platforms …

Valuation In Chapter 11 Bankruptcy: The Dangers Of An Implicit Market Test, Diane Lourdes Dick

Faculty Articles

Large corporate debtors typically include broad legal disclaimers in their financial disclosures to the bankruptcy court, such that the valuation estimates they offer in support of a proposed plan of reorganization are essentially meaningless. Some bankruptcy courts, however, discourage parties from litigating valuation; instead, they encourage them to negotiate, trusting that to the extent the debtor's estimates are woefully out of sync, the bargaining process will cause the debtor to pursue a restructuring that rests upon a more accurate value estimation. Meanwhile, these same courts interpret a lack of viable challenges to the debtor's valuation estimates as evidence of their …

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 …