Law Commons^™

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Faculty Publications

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as …

Untangling Attorney Retainers From Creditor Claims, Cassandra Burke Robertson, Jesse Wynn

Faculty Publications

Clients will often use a retainer to secure an attorney’s representation. But clients in economic distress may have creditors that are eager to access the client’s funds in the attorney’s hands. Attorneys, clients, courts, and regulators have struggled to understand who has the best claim to such retainer funds. In this Article, we attempt to untangle the most common areas of confusion. We conclude that Article 9 of the Uniform Commercial Code (UCC) offers strong protection for an attorney’s interest in client retainers through security interests, even though some courts have misapplied the UCC in this context. Further, we recommend …

Investment Bankers As Underwriters: Barbarians Or Gatekeepers? A Response To Brent Horton On Direct Listings, Anat Alon-Beck, Robert N. Rapp, John Livingstone

Faculty Publications

Direct listing clearly has the potential to meaningfully disrupt the IPO process. Changes to permit primary offerings via direct listing will help private companies to overcome some of the obstacles imposed by our securities laws and listing rules. Primary offerings by direct listing would allow for a dramatic increase in efficiency in public offerings, providing further incentive for private companies to finally provide liquidity to their shareholders while saving on the tremendous cost associated with a more traditional IPO by eliminating the need for underwriters.

Despite the positive impacts that direct listings will have on the IPO process, in their …

Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr.

Faculty Publications

The Supreme Court has held that race may be considered as “a factor of a factor of a factor” within a “holistic” program of university admissions if the university can satisfy a heavy burden of proving that the program is “narrowly tailored” to achieve the educational benefits of diversity. The Court has listed the desired benefits of racial diversity, but it has not discussed what evidence a university needs to prove that its program is “narrowly tailored” to achieve those benefits.

This article addresses that issue. The field of psychology offers abundant research about the process of judgment and decision-making …

Statutes And The Common Law Of Contracts: A Shared Methodology, Juliet P. Kostritsky

Faculty Publications

This chapter explores the intersection between, or the impact of, statutes on contract law, and compares the relative importance of, and intersections between, statutory and common law in contract.

Patent Law’S Purposeful Ambiguity, Craig Allen Nard

Faculty Publications

The ambiguity of language is an unremarkable, yet persistent force within our legal system. In the context of patent law, ambiguity presents a particularly acute dilemma; namely, while describing technological innovations is a salient feature of the patent system, affecting the validity and scope of one’s property right, the blunt nature of language makes this task particularly difficult. This paper argues to address this vexing fixture, patent doctrine purposely embraces ambiguity as a linguistic accommodation that provides measured flexibility for actors to claim and describe their innovations. It should not be surprising, therefore, that some of patent law’s most venerable …

The Environmental Protection Agency Turns Fifty, Jonathan Adler

Faculty Publications

In anticipation of the fiftieth anniversary of the EPA’s founding, the Coleman P. Burke Center for Environmental Law and the Case Western Reserve Law Review sponsored a symposium to look at the past, present, and future of the EPA. The conference featured an array of environmental-law and -policy experts, including individuals who served in environmental-policy positions in each of the last four presidential administrations, as well as the current EPA Administrator, Andrew Wheeler.

This article is an introduction for the articles from this conference that are published in this special symposium issue of the law review.

The Supreme Court And The Illegitimacy Of Lawless Fourth Amendment Policing, Ayesha B. Hardaway

Faculty Publications

For more than half a century, documented police brutality has affected communities of color and the American legal system has largely failed to address it. Beginning with Rizzo v. Goode, Supreme Court decisions have allowed local police departments nearly unlimited discretion in their policies and practices. That decision and others demonstrate that the Supreme Court is misaligned with governmental initiated reforms. The Violent Crime Control and Law Enforcement Act of 1994, which allows the U.S. Attorney General and the U.S. Department of Justice (“DOJ”) to investigate law enforcement agencies’ practices and seek injunctive relief against agencies found to have engaged …

Our Federalism On Drugs, Jonathan Adler

Faculty Publications

Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the …

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

Faculty Publications

Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

Why Choose Ltas? An Empirical Study Of Ohio Manufacturer’S Contractual Choices Through A Bargaining Lens, Juliet P. Kostritsky, Jessica Ice

Faculty Publications

This paper contributes to recent scholarship regarding Long Term Agreements (LTAs) by providing empirical evidence that suppliers are more likely to undertake the costs of an LTA if the transaction requires significant capital expenditures or the potential for large sunk costs. Through a survey of a random group of 63 Ohio supplier/manufacturers, the paper explores why supplier/manufacturers with a full range of contractual and non-contractual solutions might choose one set of arrangements over others. It then seeks to link its findings to a broader theory of how parties bargain to solve durable problems under conditions of uncertainty, sunk costs and …

Abandoning Copyright, Dave Fagundes, Aaron K. Perzanowski

Faculty Publications

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private …

Reconsidering Hostile Takeover Of Religious Organizations, B. Jessie Hill

Faculty Publications

Beginning in 2016, the headlines of major publications began announcing that Donald Trump had successfully completed a “hostile takeover” of the Republican Party. Whether this appraisal is accurate or not, it reflects concern about the associational integrity of a voluntary private organization—the Republican Party—and it suggests that some forms of organizational transformation are problematic. Moreover, the same concern might arise regarding other private associations, including religious associations. Yet, given that some transformation is inevitable and universal within religious and other voluntary organizations, it would be unwarranted to assume that all change within a religious organization is necessarily problematic.

This Article …

Essentially Elective: The Law And Ideology Of Restricting Abortion During The Covid-19 Pandemic, B. Jessie Hill

Faculty Publications

During the COVID-19 pandemic, several states adopted orders temporarily suspending elective surgeries and procedures. A subset of those states moved to limit abortions under those orders, provoking emergency litigation to keep abortion clinics open and functioning. No similar lawsuits have been necessary to protect access to other time-sensitive medical procedures. So why was abortion singled out for disparate treatment?

This Essay provides an overview of the litigation that ensued in the wake of some states’ attempts to limit abortion access under the authority of executive orders banning non-essential or elective procedures. It argues that abortion was singled out in two …

A New State Registration Act: Legislating A Longer Arm For Personal Jurisdiction, Charles W. (Rocky) Rhodes, Cassandra Burke Robertson

Faculty Publications

In a sextet of recent decisions, the Roberts Court upended the longstanding framework for general and specific contacts-based personal jurisdiction. The Court's new approach has engendered uncertainty and erected insurmountable obstacles for some plaintiffs in locating an effective forum to vindicate their rights. We propose a novel solution to the injustices and unpredictability unleashed by these decisions: a new model corporate registration act that would require, as a condition of doing business in a state, the corporation's consent to personal jurisdiction in defined circumstances that implicate state sovereign regulatory, protective, and prescriptive interests.

Registration-based consent to jurisdiction has a long …

Specialty Drugs And The Health Care Cost Crisis, Sharona Hoffman, Isaac D. Buck

Faculty Publications

Specialty drugs, often dispensed by specialty pharmacies, are among the most expensive drugs on the market. They are significant contributors to the American health care cost problem, but in many ways they escape public and regulatory scrutiny. Surprisingly, medications are designated as specialty drugs by pharmacy benefit managers (PBMs), entities that are part of the insurance industry, rather than by the Food and Drug Administration or medical authorities.

Specialty drugs have thus far received little attention in the legal literature. Yet, they raise important legal and regulatory questions. For example, there are no federal government rules (and only a handful …

Unicorn Stock Options - Golden Goose Or Trojan Horse?, Anat Alon-Beck

Faculty Publications

Large privately held startups valued at $1 billion or more (“unicorns”) are dealing with employees’ conflicts of expectations due to the illiquidity of the shares of stock acquired upon exercise of their options.

Until about eight years ago, many talented workers chose to work for a startup company for a lower cash salary combined with a substantial stock option grant, and the dream of cashing out for a large sum of money after an initial public offering (“IPO”) of the startup’s stock.

Today, unicorns remain private for extended periods of time in part because they are often no longer dependent …

Portable Medical Order Sets (Polst®): Ethical And Legal Landscape, Sharona Hoffman

Faculty Publications

Anyone who has observed the dying of a loved one or who has thought about medical care in the final months of life may be concerned about end-of-life care. How can individuals ensure that their care fits their needs and preferences if they cannot express these because of dementia, confusion, or other frailties? Some worry that they will receive care that is painful and aggressive in the last stages of disease even though they would prefer comfort care only. By contrast, others worry that physicians will withhold therapeutic care because they assume that such care is unwanted by patients who …

Time Is Not On Our Side: Why Specious Claims Of Collective Bargaining Rights Should Not Be Allowed To Delay Police Reform Efforts, Ayesha Bell Hardaway

Faculty Publications

Many view the passage of the Violent Crime Control and Law Enforcement Act of 1994 as the best chance for police departments to make meaningful and lasting improvements. That legislation provides the federal government with the authority to investigate and sue local law enforcement agencies for engaging in a pattern or practice of policing that violates the rights of individuals. However, police unions have attempted to intervene in structural reform litigation designed to remedy unconstitutional policing practices. Those attempts have largely been based on employment rights conferred through collective bargaining laws and similar employment protections. The unions argue that the …

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Faculty Publications

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Passionate Advocate, Laura Mcnally-Levine

Faculty Publications

Tribute to Judy Lipton

2018 Leet Symposium: Fiduciary Duty Corporate Goals, And Shareholder Activism—Introduction, Charles R. Korsmo

Faculty Publications

On November 1, 2018, the Case Western Reserve University Law Review held the 2018 Leet Symposium, bringing together a group of nationally respected corporate law scholars to explore the current state of play between traditional shareholder wealth maximization and modern shareholder environmental and social activism. The Symposium also included a panel on the difficult role of in-house corporate counsel in a world where serving as a zealous advocate for the corporation may conflict with in-house counsel’s compliance function. This issue contains Articles that were presented on the occasion, together with the prepared remarks of the keynote speaker, SEC Commissioner Hester …

Delaware’S Retreat From Judicial Scrutiny Of Mergers, Charles R. Korsmo

Faculty Publications

This Article evaluates recent dramatic developments in Delaware law surrounding merger litigation and concludes that they have gone too far in limiting the ability to challenge managerial wrongdoing in the takeover context. The past three years have seen a sea change in merger litigation, brought on by the twin earthquakes of the Delaware Supreme Court’s decision in Corwin v. KKR and the Delaware Court of Chancery’s decision in In re Trulia. Both of these decisions were inspired by a perceived crisis in merger litigation. By 2015, the percentage of economically significant deals challenged by at least one lawsuit had been …

The Deliberative Privacy Principle, B. Jessie Hill

Faculty Publications

In this article, I propose that there is a deep connection among at least three seemingly disparate types of constitutional rights claims. Those three rights claims are the right to make the abortion decision for any reason one chooses; the right against compelled ideological speech; and the right of religious institutions to freely hire and fire their ministers (also known as the “ministerial exception”). In particular, there is a thread that unites all of these types of claims. That unifying thread is the concept of deliberative privacy. The connection among these rights claims has not been previously made explicit by …

Introduction: Property In Ecology, Jonathan Adler

Faculty Publications

The papers in this volume explore the further potential for property-based institutions to preserve environmental values and enhance environmental protection. Through case studies, empirical assessments, and consideration of the institutional constraints that may alternatively facilitate or hamper private conservation efforts, these papers deepen our understanding of the institutional context in which conservation occurs and the potential for property-based approaches to supplement, if not supplant, traditional government management of natural resources and environmental regulation. Together, they aim to enhance the conservation potential of property institutions by looking at how such institutions may be extended and defended so as to maximize property’s …

Clown Eggs, David Fagundes, Aaron K. Perzanowski

Faculty Publications

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its sur- rounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller …

The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari

Faculty Publications

Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across de- vices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered. While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as product …

Healing The Healers: Legal Remedies For Physician Burnout, Sharona Hoffman

Faculty Publications

A career as a doctor was long considered to be among the best professional paths that one could pursue. But medicine may no longer be the sought-after career that it once was. All too often, doctors, struggling with the demands of electronic health record systems and a myriad of administrative and regulatory responsibilities, find that they fail to derive much joy from their work and become victims of burnout. Physician burnout is an acute concern in the medical community, with over half of doctors reporting that they suffer from it. Physician burnout is a public health threat. Doctors who are …

Delegation And Time, Jonathan H. Adler, Christopher J. Walker

Faculty Publications

Most concerns about delegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions made by such agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic-deficit concerns. The same is true of the judicially created non-delegation canons, such as the major questions doctrine and other clear-statement rules. This Article addresses a different, under-explored dimension of the delegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period become a …

(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends …