Law Commons^™

The Limits Of Copyright Office Expertise, Aaron K. Perzanowski

Faculty Publications

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and …

Sex, Lies, And Ultrasound, B. Jessie Hill

Faculty Publications

State-mandated falsehoods are rampant in the context of abortion regulation. State legislatures have required doctors, before performing abortions, to provide scientifically unsupported information to women, such as that having an abortion increases the risk of breast cancer, or that it has negative mental health effects. Given the lack of evidence to sustain these sorts of claims, it seems reasonable to refer to such statements as government-mandated lies. However, this article argues that government mandated lies in the abortion context are unique in several ways that make them unlikely to be found unconstitutional, despite the fact that they obviously hinder patients’ …

Preparing For The Apocalypse: A Multi-Prong Proposal To Develop Countermeasures For Biological, Chemical, Radiological, And Nuclear Threats, Constance E. Bagley, Anat Alon-Beck

Faculty Publications

The false alarm of an Hawaiian nuclear attack in January 2018 is an example of the lack of U.S. preparedness for attacks using nuclear and other weapons of mass destruction. To address such threats, this Article proposes the establishment of a nation-wide integrated defense of health countermeasures initiative (“DHCI”), which is a multi-prong program to create a defensive triad comprising government, private industry, and academia to develop countermeasures for health threats posed by biological, chemical, radiological, and nuclear (“BCRN”) attacks. Key elements of our multi-faceted proposal include the use of the government’s Other Transaction Authority to simplify procurement arrangements, the …

Personal Health Records As A Tool For Transparency In Health Care (Draft), Sharona Hoffman

Faculty Publications

This chapter explores the benefits and limitations of personal health records (PHRs) as a tool to promote transparency in health care. A PHR can be defined as “an electronic application through which individuals can access, manage and share their health information . . . in a private, secure, and confidential environment.” PHRs can enhance efficiency, communication, data accuracy, and health outcomes. At the same time, they can disrupt the physician-patient relationship and raise liability concerns. For example, PHRs may induce patients and physicians to rely on electronic communication when office visits would be far more appropriate. The chapter analyzes the …

Big Data Analytics: What Can Go Wrong, Sharona Hoffman

Faculty Publications

It is not uncommon to read that long-held beliefs about medical treatments have been dislodged by new studies. For example, there is now doubt as to whether women should undergo annual mammograms, previously a cornerstone of cancer screening. Hormone replacement therapy for menopausal women, once considered highly suspect in light of worrisome research findings, is now being reconsidered as a beneficial therapy. These reversals trouble and confuse many Americans.

This Article explores why medical research findings can be erroneous and what can go wrong in the process of designing and conducting research studies. It provides readers with essential analytical tools …

Auer Evasions, Jonathan Adler

Faculty Publications

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force …

The Origination Clause And The Validity Of Taxing Statutes, Erik M. Jensen

Faculty Publications

The Origination Clause of the Constitution provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” This article considers whether a taxpayer has any chance of success in challenging a tax statute on the grounds that its enactment violated that clause. Along the way, the article considers the history of the clause, the meanings of “bill for raising revenue” and “amendment,” and how, if at all, the clause can be enforced.

Four States Challenge The Cap On Salt Deductions, Erik M. Jensen

Faculty Publications

The attorneys general of New York, Connecticut, New Jersey, and Maryland have filed the complaint in New York v. Mnuchin, challenging the constitutionality of the $10,000 cap on the deduction for state and local taxes established by the Tax Cut and Jobs Act of 2017. This article considers the most important of the states’ claims and concludes that none of them is convincing.

Panel: Balancing Acts -- Energy Innovation In A Complex Market, David Hults, Gitane De Silva, Chris Ziegler

Canada-United States Law Journal

A panel discussion is presented between the speakers of the Canada-United States Law Institute Conference namely David Halts, Gitane De Silva, and Chris Zeigler. Topics include impact of energy industry on climate change; enacting climate policy for bringing out environmental justice, and protection; and enactment of U.S. Clean Air Act for addressing the same

Volume 42 (2018), Canada-United States Law Journal

Canada-United States Law Journal

No abstract provided.

Hydraulic Fracturing Litigation: The Case Of Jessica Ernst & The Problem Of Factual Causation, Oliver Hutchinson

Canada-United States Law Journal

Modem hydraulic fracturing technology and horizontal drilling have made it possible and profitable for oil and gas companies to extract natural gas from underground shale and coal formations that would otherwise be inaccessible. Horizontal drilling, in particular, has enabled oil and gas companies to turn under-producing reservoirs into profitable extractive sites. However, despite its technological achievements and economic efficiencies, hydraulic fracturing is not without controversy. One of the main concerns is the potential for groundwater contamination. While experts disagree, the preponderance of evidence suggests that hydraulic fracturing can and has resulted in the unintended toxic contamination of nearby groundwater sources. …

Panel: Preserving Financial Integrity And Promoting Compliance, Diane Francis, Richard Gordon, Josee Nadeau

Canada-United States Law Journal

A panel discussion is presented between the speakers of the Canada-United States Law Institute Conference namely Diane Francis, Richard Gordon, and Josee Nadeau. Topics include fostering of financial integrity and compliance; economic relation between Canada-U.S.; and prevention of financial crimes and fostering financial integrity.

Law Students Represent Victims Of The Largest Social Security Disability Fraud Case In History, Case Western Reserve University School Of Law, Law-Medicine Center

Case Law-Med

• Welcome from our Law-Medicine Center leaders
• Cleveland: A top city for health care
• Cover Story: Seeking justice for victims of Social Security disabilities fraud
• Helping clients live their lives to the fullest
• Scott Schweikart: reporting on legal issues at the AMA
• Hilary Leeds: promoting clinical trials transparency
• National Jurist recognizes Alison Epperson as a “law student of the year”
• CWRU law student wins second place in national health law writing competition
• CWRU hosts the 41st annual Health Law Professors Conference
• The Law-Medicine Center’s 2017-18 events take on malpractice litigation, patient trust, opioid crisis, contraception and more
• Iowa Supreme Court adopts …

Masthead, Volume 42 (2018)

Canada-United States Law Journal

No abstract provided.

2018 Sidney Picker, Jr. Award Remarks: States And Borders, Maureen Irish

Canada-United States Law Journal

A speech is presented by Maureen Irish, on the occasion of 2018 Sidney Picker, Jr. Award at the Canada-United States Law Institute 42nd Anniversary Conference. Topics include Canada-U.S. relation on energy, trade, and providing sovereignty to environment; human rights, the environment, and human population; and general principals of customary international law.

"The Tip Of The Iceberg": Human Trafficking, Borders And The Canada-U.S. North, Mike Perry

Canada-United States Law Journal

No abstract provided.

Of Trade And Beer: Nafta, The Comeau Case And Regulatory Cooperation, Maureen Irish

Canada-United States Law Journal

This article is adapted from the 11th Canada-United States Law Institute Distinguished Lecture given by Professor Maureen Irish at Western University Faculty of Law on October 2, 2017. The Supreme Court of Canada is hearing a case that deals with the nature of the internal market in Canada. This paper discusses trade law relating to regulatory cooperation in NAFTA, the European Union, the Canadian Free Trade Agreement and other recent Canadian international initiatives. It examines the ways in which these treaties and other arrangements respond to regulatory differences between importing and exporting jurisdictions. The challenge of how to deal with …

Distinguished Panel: Face Off Or Fresh Start? International Trade In Times Of Turmoil, Terence P. Stewart, John M. Weekes, Allan Wm. Wolff

Canada-United States Law Journal

A panel discussion is presented between the speakers of Canada-United States Law Institute Conference including Terence P. Stewart, John M. Weekes, and Alan Wm. Wolff. Topics include Canada-U.S. trade relations; North American Free Trade Agreement (NAFTA); and efforts in establishing a Free Trade Agreement.

Management Of The Great Lakes-St. Lawrence Maritime Transportation System, Mike Piskur

Canada-United States Law Journal

The Great Lakes-St. Lawrence Maritime Transportation System ("MTS") bears critical importance to the economic competitiveness of Canada and the United States ("US"). Maritime transportation comprises both a major economic driver and job creator for both countries. As a cost-effective and highly efficient means of transporting raw materials and finished products to market, the MTS is essential to agricultural, mining, and manufacturing supply chains that frequently stretch across the US-Canada border and beyond. Yet management of the MTS is fragmented, with responsibility for various system components scattered across numerous federal agencies in both the US and Canada. This fragmentation results in …

Civil Litigation In Response To Corporate Human Rights Abuses: The European Union And Its Member States, Jonas Grimheden

Case Western Reserve Journal of International Law

The article assesses the barriers that victims of human rights abuse involving companies face in accessing effective judicial remedies in the European Union.

Keynote Lecture: International Human Rights: Need For Further Institutional Development, Judge Thomas Buergenthal

Case Western Reserve Journal of International Law

No abstract provided.

A Bargaining Dynamic Transaction Cost Approach To Understanding Framework Contracts, Juliet P. Kostritsky

Faculty Publications

This Article takes a different approach. It draws on the literature of these scholars but suggests that another way to understand the arrangements parties enter into in a variety of settings to purchase or sell goods or to innovate on a product or drug can best be understood in terms of a bargaining dynamic that looks at how the private interests of the parties are turned into joint interests in the agreement reached. It is a mistake to talk about the form of a contract without first understanding the bargaining needs and positions of the parties and how those needs …

If A Tuition Reduction Is Taxable, What’S The Measure Of Income?, Erik M. Jensen

Faculty Publications

This article considers what the measure of income should be if a tuition reduction is taxable, and it challenges the idea that an educational institution’s stated tuition figure should control in that determination. It’s the value of the reduction, not the dollar difference between sticker price and the tuition actually paid by a particular student, that is potentially income, and the article suggests one reasonable method that might be used to determine that value. Although the focus of the article is on tuition reductions, the argument applies just as well to other situations in which a price reduction (or what …

Masthead, Volume 28 (2018)

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Health Care Held Ransom: Modifications To Data Breach Security & The Future Of Health Care Privacy Protection, Ryan M. Krisby

Health Matrix: The Journal of Law-Medicine

The article highlights the need of modification in the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), as the federal data breach security regulation fails to adequately protect patient data. Topics discussed include data breach security under HIPAA; need of modifications that address these inadequacies concerning ransomware; and actions by the U.S. Federal Trade Commission to provide an impetus for healthcare organizations to carry out data security modifications.

Needles, Haystacks, And Next-Generation Genetic Sequencing, Teneille R. Brown

Health Matrix: The Journal of Law-Medicine

Genetic testing is becoming more frequent and the results more complex. Not infrequently, genetic testing conducted for one purpose reveals information about other features of the genome that may be of clinical significance. These unintended findings have been referred to as "incidental" or "secondary" findings. In 2013, the American College of Medical Genetics ("ACMG") recommended that clinical laboratories inform people if their genetic analyses indicate that they have certain secondary mutations. These mutations were selected because they probably cause a serious disease, which is treatable, and may go undetected. The ACMG's recommendations galvanized critical responses by the genetics and ethics …

Regulating Decentralized Cryptocurrencies Under Payment Services Law: Lessons From The European Union, Asress Adimi Gikay Dr.

Journal of Law, Technology, & the Internet

Several years after the inception of the most dominant cryptocurrency, bitcoin, the European Central Bank in 2015 indicated the need for establishing legal clarity by relevant authorities through explaining how the current legal framework applies to cryptocurrencies. Three years later, no meaningful step has been taken by any of the European Union (EU) institutions including the parliament. By examining the EU’s legal framework governing payments services, including the Single Euro Payment Area (SEPA) Regulation, the Electronic Money Directive, the Payment Services Directive and the proposed AML/CTF Directive, this article concludes that (a) because the existing payment services laws apply to …

The Brand-X Effect: Declining Chevron Deference In The 21st Century, Stephen M. Johnson

Case Western Reserve Law Review

No abstract provided.

Is Capping The Deduction For State And Local Taxes Constitutional?, Erik M. Jensen

Faculty Publications

In the Tax Cuts and Jobs Act of 2017, Congress capped the deduction available for state taxes not attributable to businesses or investments, and representatives of high-tax states are challenging the constitutionality of that cap—which, they argue, was motivated by animus. This article considers several possible rationales for a challenge—intergovernmental tax immunity, political animus in general, the uniformity rule, and equal protection—and concludes that the case for overturning the cap on constitutional grounds is weak at best.

The Foreign Emoluments Clause, Erik M. Jensen

Faculty Publications

Because of the foreign business dealings of President Donald Trump and his family, interpreting the Foreign Emoluments Clause has become a nearly fulltime job for political pundits, with stories about the clause appearing in every conceivable media outlet. The clause provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” If the president is benefitting economically from business dealings with foreign governments (or organizations that might be treated as agencies …