Law Commons^™

Crime As Cognitive Constraint: Facebook's Role In Myanmar's Incitement Landscape And The Promise Of International Tort Liability, Jenny Domino

Case Western Reserve Journal of International Law

"Is Facebook’s role in the spread of incitement in Myanmar criminal? In 2018, the United Nations Independent International Fact-Finding Mission on Myanmar (FFM) described Facebook’s “significant role” in the spread of incitement to discrimination and violence against Myanmar’s Rohingya Muslims.2 Although the FFM described in detail the speakers’ responsibility for the Facebook posts, the precise nature of Facebook’s responsibility in moderating (or failing to moderate) harmful content was unclear."

Lawyering Peace: Infusing Accountability Into The Peace Negotiations Process, Dr. Paul R. Williams

Case Western Reserve Journal of International Law

Klatsky Endowed Lecture on Human Rights by Dr. Paul R. Williams

"Thank you to Case Western Reserve University School of Law, and in particular Dean Michael Scharf, for providing me with the privilege of delivering the Klatsky Endowed Lecture on Human Rights. Thank you, Milena Sterio, for your wonderful introduction. It is my honor to receive the Cox International Law Center’s Humanitarian Award for Advancing Global Justice and join the inspiring array of international law scholars and practitioners who have received it in years prior. I am also pleased to have the opportunity to speak today to such an engaged …

Questions & Answers Period, Stephen J. Petras Jr. (Moderator)

Canada-United States Law Journal

No abstract provided.

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 …

Of Mosquitoes And "Moral Convictions" In The Age Of Zika: How The Trump Administration's Gutting Of The Affordable Care Act's Contraceptive Mandate Jeopardizes Women's And Children's Health, Linda C. Fentiman

Health Matrix: The Journal of Law-Medicine

The Trump Administration’s efforts to undo the contraceptive mandate, a key component of the Affordable Care Act (ACA), threaten a major public health emergency, as well as the rule of law and separation of powers. The Trump Administration’s Rules greatly expand the grounds for exemption from the contraceptive mandate: they allow even publicly traded corporations to assert religious beliefs as a ground for exemption and exempt all employers except publicly traded corporations from compliance with the contraceptive mandate if they hold “moral convictions” in opposition to contraception. By denying women access to effective, affordable contraception, these Rules increase the odds …

Medical Aid In Dying By Telehealth, Konstantin Tretyakov

Health Matrix: The Journal of Law-Medicine

Medical aid in dying is a form of medical treatment recognized in several states and the District of Columbia and available to adult residents of those states who are competent and suffer from a terminal disease. Timely access to it is critical for qualifying patients. The article explores the possibility of facilitating access to medical aid in dying via telehealth—a method of providing health care remotely by means of electronic communication. Specifically, I analyze the feasibility of medical aid in dying by telehealth from clinical and legal perspectives. I also examine a relevant normative issue of the nature of in-person …

Constitutions And Blockchains:Competitive Governance Of Fundamental Rule Sets, Eric Alston

Journal of Law, Technology, & the Internet

In the context of private ordering—where rule sets are relatively fluid, centrally controlled, and exist in the shadow of law and regulation—developing generalizable insights about comparatively superior governance mechanisms is difficult. I shed light on this question by characterizing cryptocurrency blockchains as a type of constitutional rule set that both defines and legitimizes the activities supported by the underlying distributed ledger technology. More specifically, I argue that cryptocurrency blockchains have led to new forms of competition in private governance, which include exit costs and citizenship rules as important competitive margins. My analysis not only identifies the choices in constitutional governance …

A Question Of Trust: Facebook Libra As Money In The Economic And Legal Sense, Muharem Kianieff

Journal of Law, Technology, & the Internet

This article examines the use of Facebook’s Libra (now renamed “Diem”) as a substitute for fiat money. It considers Libra’s prospects for success in light of the fact that it purports to substitute trust in a technology for the traditional legal supports that bolster public trust in traditional fiat currencies. The legal doctrines that support fiat currencies do so for the purposes of recognizing the economic functions that money performs and are also meant to support public policies that promote monetary stability, protect consumers and help to enforce anti money laundering statutes. It is argued that Libra will result in …

Let Sleeping Dogs Lie: Defending Severability After Murphy, Collins, And Seila Law, Gregory Hilbert

Case Western Reserve Law Review

No abstract provided.

Masthead, Volume 70 Issue 3 (2020)

Case Western Reserve Law Review

No abstract provided.

The Epa At Fifty Symposium: Keynote Address, Andrew Wheeler

Case Western Reserve Law Review

No abstract provided.

It Isn’T Easy Being A Bureaucratic Expert: Celebrating The Epa’S Innovations, Wendy Wagner

Case Western Reserve Law Review

No abstract provided.

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

Case Western Reserve Law Review

No abstract provided.

The Origins And Legacy Of The Fourth Amendment Reasonableness-Balancing Model, Kit Kinports

Case Western Reserve Law Review

No abstract provided.

O’Reilly V. Morse And Claiming A “Principle” In Antebellum Era Patent Law, Adam Mossoff

Case Western Reserve Law Review

No abstract provided.

Making Patents: Patent Administration, 1790–1860, Kara W. Swanson

Case Western Reserve Law Review

No abstract provided.

The Traditional Burdens For Final Injunctions In Patent Cases C.1789 And Some Modern Implications, H. Tomás Gómez-Arostegui, Sean Bottomley

Case Western Reserve Law Review

No abstract provided.

23anddiverseme: Using Genetic Ancestry Tests To Establish Minority Status, Robert Karl

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Talking Foreign Policy: October 1, 2019 Broadcast: "The Rohingya Genocide", Tfp Panel

Case Western Reserve Journal of International Law

"According to a recent UN report, Facebook bears responsibility for the worst humanitarian disaster on the planet – the mass attacks against the Rohingya people of Burma. Welcome to “Talking Foreign Policy.” I’m your host, Michael Scharf, [co-]Dean of Case Western Reserve University School of Law. In this broadcast, our expert panelists will help us understand the Rohingya crisis, the role of Facebook, and the prospects for achieving accountability for the international crimes that have been committed against the Rohingya people in Burma."

Competency To Decide For Another, Elyn R. Saks

Health Matrix: The Journal of Law-Medicine

Our topic is competency of a Substitute Decisionmaker (SubDM) to make a decision about medical treatment for another who is incompetent himself (the “ward”). While there is Competency to Decide for Another considerable literature on competency to decide for oneself, there is very little on competency to decide for another. Some studies look at a range of things that a SubDM needs to do —for example, seek information on what the ward has said—but there is none on how well a person must understand the relevant issues to be a competent SubDM.

The Paradoxes Of Defensive Medicine, Michael J. Saks, Stephan Landsman

Health Matrix: The Journal of Law-Medicine

For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted …

The Promise And Failures Of Children's Medicaid And The Role Of Medical-Legal Partnerships As Monitors And Advocates, L. Kate Mitchell

Health Matrix: The Journal of Law-Medicine

For decades we have known that access to early and preventive diagnosis and treatment can dramatically alter the course of a child’s life. Because of this knowledge, immediately after Congress enacted Medicaid, it created the Early and Periodic Screening, Diagnostic and Treatment, or EPSDT, program. EPSDT requires broad, holistic, and preventive care to correct or ameliorate health defects identified in Medicaid-eligible children. This coverage currently extends to 2 out of 5 children in the United States, and 47 percent of children with special health care needs. Because of the broad parameters of coverage mandated by EPSDT, Medicaid-eligible children should receive …

The Off-Label Loophole In The Psychopharmacologic Setting: Prescription Of Antipsychotic Drugs In The Nonpsychotic Patient Population, Lisa E. Smilan

Health Matrix: The Journal of Law-Medicine

U.S. physicians have wide discretion in treating patients with off-label medications. Many consider off-label prescription essential in our country’s health care system, and it is wholly supported by FDA and federal courts. Assumptions about physicians’ expertise, judgments, and commitments to beneficence and nonmaleficence undergird laissez-faire policies that allow and support physicians’ novel and innovate uses of FDA-approved drugs for purposes and populations not studied in original, strictly regulated clinical trials. Though sometimes beneficial, off-label prescribing, which flourishes in privatepractice psychiatry, often harms scores of psychiatric patients. Frequently, potential harms are insufficiently disclosed to patients. In the public health sector, officials …

Why The United States Is Failing New Mothers And How It Can Counteract Its Rapidly Climbing Maternal Mortality Rate, Khouloude Abboud

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Encoding Music: Perforated Paper, Copyright Law, And The Legibility Of Code, 1880–1908, Gerardo Con Díaz

Case Western Reserve Law Review

No abstract provided.

Patent Originalism, Richard A. Epstein

Case Western Reserve Law Review

No abstract provided.

Volume 70 Issue 3 (2020), Case Western Reserve Law Review

Case Western Reserve Law Review

No abstract provided.

Disempowering The Epa: How Statutory Interpretation Of The Clean Air Act Serves The Trump Administration’S Deregulatory Agenda, Joseph Goffman, Laura Bloomer

Case Western Reserve Law Review

No abstract provided.

The Epa As A Catalyst For The Development Of Global Environmental Law, Robert V. Percival

Case Western Reserve Law Review

No abstract provided.

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 …