Law Commons^™

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Christensen V. United States Of America (U.S. November 7, 2016) (No. 16-461)., Janet Moore

Faculty Articles and Other Publications

The jury is essential to our structure of government, available to criminal defendants as the final arbiter of guilt. As this Court has recognized time and again, the jury serves an important role both structurally within the balance of powers and as a check on governmental power, adding a layer of protection for individual defendants.

The rule applied by the Ninth Circuit and some other courts, allowing dismissal of a holdout juror if a judge sees no reasonable possibility that his view is connected to the merits of the case, threatens the fundamental role of the jury. In contrast to …

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Bridgeman V. District Attorney For Suffolk District, 476 Mass. 298 (2016) (No. Sjc-12157)., Janet Moore

Faculty Articles and Other Publications

As the highest courts in Florida, Missouri, Michigan, New York, and Pennsylvania have demonstrated, systemic relief is necessary and appropriate to cure systemic failures that deny access to courts by imposing overwhelming demands on struggling public defense systems. Government misconduct created exactly that type of constitutional crisis by flooding the Commonwealth’s criminal legal system with 24,000 Dookhan cases. New revelations of even more corruption in the Commonwealth’s forensic sciences system are now anticipated to exacerbate that crisis by adding another 18,000 Farak wrongful-conviction cases. At the same time, the District Attorneys have undermined progress on fair, reliable case-by-case resolution of …

Our Time Is Better Spent Influencing Future Disruption: A Call To End The Indiscriminate War Against Self-Help Legal Technology, Olivia Holder

The University of Cincinnati Intellectual Property and Computer Law Journal

Under the guise of consumer protection, lawyers and bar associations have used disparate litigious mechanisms to thwart, inadvertently or not, the use of self-help legal technology. This paper will demonstrate that such adversity is not logical after a consideration of the technical functions that the software performs and unduly restricts underserved populations’ access to the law because of the misapplication of policy to vaguely worded laws. This paper will provide a thorough analysis of legal action taken against the high-profile company LegalZoom under the theory of unauthorized practice of law provides direct support of this claim. Summary and critique of …

Brief Of The Roderick & Solange Macarthur Justice Center, Et Al As Amici Curiae Supporting Petitioner, Christeson V. Roper (8th Cir. August 19, 2016) (No. 16- 02730)., Janet Moore

Faculty Articles and Other Publications

This case involves a district court’s patent disregard for a deeply mentally impaired defendant’s right to meaningful representation in capital federal habeas proceedings. By funding only 6% of defense counsel’s request for necessary expert and other resources, the District Court violated the constitution, ignored federal statutory mandates, flouted the Supreme Court’s remand order, blocked counsel’s ability to satisfy professional and ethical obligations, publicly disclosed contents of previously protected information about defense strategy, and set a very dangerous precedent for our justice system.

Jay-Z Has 99 Problems But A Sample Ain’T One, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Negative Effects Of Cumulative Abortion Regulations: Why The 5th Circuit Was Wrong In Upholding Regulations On Medication Abortions (Planned Parenthood Of Greater Texas Surgical Health Services V. Abbott), Benjamin A. Hooper

University of Cincinnati Law Review

No abstract provided.

Refusing To Fold: How Lawrence Dicristina Went Bust Fighting For A Novel Interpretation Of The Illegal Gambling Business Act, Jonathan Hilton

University of Cincinnati Law Review

No abstract provided.

If I Go Crazy, Then Will You Still Call Me A Super Pac? How Enmeshment With Political Action Committees Makes Contribution Limits Enforceable On Independent Expenditure-Only Committees, Brian Greivenkamp

University of Cincinnati Law Review

No abstract provided.

When Loss Of Legal Custody Is Like An Indeterminate Prison Sentence: Ohio's Elimination Of Indigent Parents' Right To Court Appointed Counsel In Civil Custody Suits, Renee Brunett

University of Cincinnati Law Review

No abstract provided.

Everybody's Vaping For The Weekend: Nicotine Addiction As A Workplace Disability, Matthew M. Allen

University of Cincinnati Law Review

No abstract provided.

Beyond A Reasonable Disagreement: Judging Habeas Corpus, Noam Biale

University of Cincinnati Law Review

This Article addresses ongoing confusion in federal habeas corpus doctrine about one of the most elemental concepts in law: reasonableness. The Supreme Court recently announced a new standard of reasonableness review for habeas cases, intended to raise the bar state prisoners must overcome to obtain federal relief. This new standard demands that errors in state court decisions be so profound that “no fairminded jurist could disagree” that the result is incorrect. Scholars have decried the rigid and exacting nature of this standard, but very little interpretive work has yet been done to theorize what it means and how it should …

A Functional Approach To Copyright Policy, Robert E. Suggs

University of Cincinnati Law Review

No abstract provided.

Defend And Protect: National Security Restrictions On Foreign Investments In The United States, Matthew Aglialoro

University of Cincinnati Law Review

No abstract provided.

Better Not Call Saul: The Impact Of Criminal Attorneys On Their Clients' Sixth Amendment Right To Effective Assistance Of Counsel, Veronica J. Finkelstein

University of Cincinnati Law Review

No abstract provided.

Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet

University of Cincinnati Law Review

No abstract provided.

The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore

University of Cincinnati Law Review

No abstract provided.

National Security Or Consumer Privacy? A Question Even Siri Couldn’T Answer, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Foreword: Twenty-Eighth Annual Corporate Law Symposium: Rethinking Compliance, Felix B. Chang

Faculty Articles and Other Publications

The University of Cincinnati College of Law devoted its 28th Annual Corporate Law Center Symposium to compliance. It was a timely choice, coinciding not only with an explosion of sector regulation in recent years but also with shifting market realities for legal employment and legal education. The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and the Patient Protection and Affordable Care Act are two prominent examples of major legislation that has added—and will continue to add—to compliance obligations for broad swathes of industries. Meanwhile, the financial crisis has spurred profound transformations in legal employment, including cutbacks in entry …

Professional Formation And The Political Economy Of The American Law School, Louis D. Bilionis

Faculty Articles and Other Publications

This article proposes that a comprehensive model for doing professional formation in law school is now in sight. The model can work for formation – which is to say that it has the right vision of the fundamentals and the appropriate program features and pedagogies to effectively support students in the development of their professional identities. The model also can work for the political economy of the typical American law school – which is to say that its strategy and approach to roles and resources makes it congenial to postulates about power, resources, work, and governance that shape relations inside …

Update To The European Human Rights System, James Hart Mr.

Law Librarian Articles and Other Publications

This is an update to The European Human Rights System, which described the founding, development, and bibliography of the Council of Europe (COE), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the European Court of Human Rights (ECtHR). It describes what has happened between the publication of that article in 2010 and the end of 2014. This update covers the alleviation of the pressures on the European Court of Human Rights, improvements in the publication and dissemination of the ECtHR’s documents, the Draft Treaty of Accession, and the case that is a barrier to …

Celebrities’ Expansive “Right Of Publicity” Infringes Upon Advertisers’ First Amendment Rights, Jon Siderits

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Ttab Decisions No Longer The “Red-Headed Stepchild” Of Precedential Authority, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Requiring Plaintiffs To Prove Irreparable Harm: “It Isn’T Right.” (Herb Reed Enters, Llc V. Fla Entm’T Mgmt. Inc. (9th Cir.2013)), Anthony Kremer

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Dueling Monologues On The Public Domain: What Digital Copyright Can Learn From Antitrust, Timothy K. Armstrong

The University of Cincinnati Intellectual Property and Computer Law Journal

This article, written for the inaugural volume of the University of Cincinnati Intellectual Property and Computer Law Journal, explores the disconnect between contemporary United States intellectual property law and the often quite different consensus views of disinterested expert opinion. Questions concerning how copyright law treats the public domain (that is, uncopyrighted material) supply a lens for comparing the law as it stands with the law as scholars have suggested it should be. The ultimate goal is to understand why a quarter century of predominantly critical scholarship on intellectual property seems to have exerted such limited influence on Congress and …

Discrimination Law: The New Franken-Tort, Sandra F. Sperino

Faculty Articles and Other Publications

This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.

The Perfect Process Is The Enemy Of The Good Tax: Tax's Exceptional Regulatory Process, Stephanie Mcmahon

Faculty Articles and Other Publications

Many courts and academics critique existing tax exceptionalism or the ability of the federal income tax to be created, applied, or interpreted differently from other laws. Critics have successfully complained that the Treasury Department, and the IRS as a bureau of the Department, issues guidance implementing the Internal Revenue Code using different processes from those required by the Administrative Procedure Act (APA). At the same time, courts are increasing the level of deference given to this guidance to conform to that given other agencies. This article responds to these critics by urging they re-focus their attention on the objectives of …

Clean Power Policy In The United States, Joseph P. Tomain

Faculty Articles and Other Publications

Within the last year, the Obama administration has taken two significant and dramatic steps addressing the challenges of climate change and demonstrating a renewed leadership role for the US. First, as a signatory to the Paris climate agreements, the US has stepped forward to participate in that global effort after years of recalcitrance. The US, for example, signed the Rio Declaration in 1992 but five years later would not ratify the 1997 Kyoto Protocol. Now, though, the US has reversed course and has reentered the international climate conversation.

The second significant climate initiative came on the domestic front as the …

Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford Mank

Faculty Articles and Other Publications

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may …

Does A House Of Congress Have Standing Over Appropriations?: The House Of Representatives Challenges The Affordable Care Act, Bradford Mank

Faculty Articles and Other Publications

In U.S. House of Representatives v. Sylvia Matthews Burwell, the District Court for D.C. in 2015 held that the House of Representatives has Article III standing to challenge certain provisions of the Affordable Care Act as violations of the Constitution’s Appropriations Clause. The Supreme Court’s jurisprudence on legislative standing is complicated. The Court has generally avoided the contentious question of whether Congress has standing to challenge certain presidential actions because of the difficult separation-of-powers concerns in such cases. In Raines v. Byrd, the Court held that individual members of Congress generally do not have Article III standing by simply holding …

Justice Kennedy's Big New Idea, Sandra F. Sperino

Faculty Articles and Other Publications

In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope. …