Law Commons^™

Courage In The Legal Writing Classroom Redefined, Karin Mika

Law Faculty Articles and Essays

State statutes prohibiting the teaching of "liberal-leaning" material have the potential of quieting voices that should be amplified. Maintaining courage in the face of restrictive legislation like SB 83 requires creativity. Legal Writing professors can foster critical thinking and prepare future lawyers by strategically utilizing teaching techniques that are seemingly neutral, but also force thoughtful consideration resulting in students becoming aware of historical injustices.

Brief Of Professors Of Law, Business, And Economics As Amici Curiae In Support Of Appellees And Affirmance, Christopher L. Sagers, Robert K. Shelquist

Law Faculty Briefs and Court Documents

No abstract provided.

Legal Issues In Blockchain, Cryptocurrency, And Non-Fungible Tokens (Nfts), Christa Laser

Law Faculty Articles and Essays

When do new technologies require changes in the law? Judge Easterbrook argued in 1996 that there is no more need for a "Law of Cyberspace" than there ever was for a "Law of the Horse." Rather, existing laws spanning multiple fields are often sufficient to cover niche factual applications and even new technological change. The same is true now for "The Law of Blockchain." Nonetheless, blockchain marketplace participants lack any cohesive, useful analysis to tum to that is neutral in outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a …

Lists In Legal Drafting: How Brain Science Can Help Student Drafters Produce Documents That Are Easier To Read And Comprehend, Karin Mika

Law Faculty Articles and Essays

Lists play an important role in legal drafting of every type. A list helps the reader break down larger pieces of information, and a well-constructed list's visuals can aid in comprehension. A good list can also head off future legal disputes by making it easier for all parties to read and understand its contents. But a list, in and of itself, is not beneficial unless it is organized in such a way that the brain can easily group like items. By understanding the basics of how the brain processes information, the legal writer can better understand how to group pieces …

Prosecuting Gender Persecution At The Icc: Definitions, Policies, And Practice, Milena Sterio, Yvonne Dutton

Law Faculty Articles and Essays

This Article's primary goal is to highlight the International Criminal Court (ICC)'s Office of the Prosecutor (OTP)'s Gender Persecution Policy, while also demonstrating its place in the trajectory of the ICC's progress in changing the course of human history as relates to the recognition of and prosecution of sexual and gender-based (SGBV) crimes. To that end, some background is necessary to contextualize the ICC's current policy and practice as relates to the crime of gender persecution. Part II discusses the Rome Statute's unique contributions to the development of international criminal law regarding SGBV crimes, including the crime of gender persecution. …

Cultivating Sense: Cultural Change In The Prosecutor’S Office, Shih-Chun Steven Chien

Law Faculty Articles and Essays

Prosecutors exercise broad discretion. They are widely viewed as the gatekeepers of the criminal justice system. To date, studies on prosecutors in different jurisdictions have largely focused on how to conceptualize, manage, and eventually control the exercise of prosecutorial discretion. Scholars have recently turned their attention to the importance of internal organizational management and leadership’s role in changing office culture as a means to regulate prosecutorial discretion. But we have limited empirical evidence as to how changes occur within a prosecutor’s office and what precise role organizational leaders play during this process.

This Article constructs a new paradigm for the …

Why Do Corporations Merge And Why Should Law Care?, Chris Sagers

Law Faculty Articles and Essays

Mergers and acquisitions are extraordinarily prevalent in the United States, generating massive expenditures every year. However, a serious empirical puzzle lies at the heart of all that activity. That empirical phenomenon's most remarkable feature by far is that even though it is well established in an extensive literature and implies far-reaching policy consequences, American law ignores it entirely.

Generations of researchers have failed to find evidence that merger and acquisition activity generates any lasting benefits for the combining firms' owners or anyone else. No one seriously doubts that efficiencies of scale or technological integration are real or that acquisitions sometimes …

Globalization, State Sovereignty, And The Development Of International Criminal Law, Milena Sterio

Law Faculty Articles and Essays

"Today, virtually all nation-states have gradually become enmeshed in and functionally a part of a larger pattern of global transformations and global flows. Transnational networks and relations have developed across virtually all areas of human activity. Goods, capital, people, knowledge, communications, and weapons, as well as crime, pollutants, fashions and beliefs, rapidly move across territorial boundaries. Far from being a world of "discrete civilizations, "or simply an international society of states, it has become a fundamentally interconnected global order, marked by intense patterns of exchange as well as by clear patterns of power, hierarchy and unevenness."

"To speak of globalization …

The Ukraine Crisis And The Future Of International Courts And Tribunals, Milena Sterio

Law Faculty Articles and Essays

The Ukraine crisis is an example of modern-day conflict which poses various accountability challenges and demonstrates that not a single existing prosecutorial mechanism is capable of achieving a full measure of accountability while fulfilling the different goals of international criminal justice. As discussed in this Article, the prosecution of a sufficient number of Russian perpetrators of atrocities, as well as of Russian leaders, conducted legitimately and effectively, will necessitate the utilization of almost all accountability models - Ukrainian courts, a war crime chamber, the ICC, as well as an ad hoc aggression tribunal. The Ukrainian crisis demonstrates that all international …

The War In Ukraine And The Legitimacy Of The International Criminal Court, Milena Sterio, Yvonne Dutton

Law Faculty Articles and Essays

The news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC or “Court”). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (“OTP”) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions.

This Article argues that the unique situation surrounding state support for …

Comments On The International Criminal Court Office Of The Prosecutor's Draft Policy On The Crime Of Gender Persecution Under The Rome Statute, Milena Sterio

Law Faculty Reports and Comments

The Draft Policy promises to be a seminal contribution not only to the Office of the Prosecutor's (OTP) policy and practice and the International Criminal Court's (ICC) jurisprudence on gender persecution, but also to the development of international criminal law generally. Building on its prior work, including the 2014 Policy Paper, the OTP is well placed to develop policies and procedures that protect historically marginalized and oppressed groups, deliver justice that accurately reflects the depth and breadth of the gender persecution suffered, and shed light on a crime that has to date received only limited attention.

As it finalizes the …

Brief Of Patent Law Professors As Amici Curiae In Support Of Petitioners, Christa J. Laser

Law Faculty Briefs and Court Documents

This Court should reverse the Federal Circuit and hold that IPR estoppel extends only to grounds that were raised or could have been raised during the IPR proceeding. Estoppel would therefore extend to instituted grounds, whether raised during the proceeding or not. Estoppel would not extend to uninstituted grounds, such as grounds which might have been challenged in the petition for review but were not.

Friend Or Foe? Lexis Artificial Intelligence (Ai) In Legal Writing, Karin Mika

Law Faculty Articles and Essays

Artificial Intelligence (AI) programs in the law are becoming more popular, moving from downloadable forms, to generating and critiquing contracts and handbooks, and even generating text. Lexis has two major research products that appeal especially to first-year students. The first product is Brief Analysis, which analyzes documents and provides suggestions for additional research. Brief Analysis is more appropriately used to expand research for briefs, motions, and other types of persuasive writing, but could be used to review research and citations for objective memos. The second product is a downloadable add-on that enables research to be done side-by-side with the writing …

The Artemis Theory Of Warfare, Mark J. Sundahl

Law Faculty Articles and Essays

Outer space, long the province of peaceful competition and international cooperation, is being rapidly militarized. We stand today at a rare inflection point in history that deserves careful thought as humanity moves forward. In short, we face the following choice: we can either protect and build on the special nature of space norms and customs to preserve space as a “laboratory of peace,” or we can militarize space as the new “highest ground” under largely the same rules that govern terrestrial warfare. The sad reality is that our history, being inextricably linked to warfare, predicts that the dream of a …

The Power Of Vulnerability In Promoting A Sense Of Belonging: The Perspective Of A First-Generation American, Karin Mika

Law Faculty Articles and Essays

It is my intention that students teach each other through really getting to know one another and finding commonality in each other’s experiences. Most of us live in a social bubble, partially because we feel vulnerable in worlds where we perceive that we do not belong. By sharing vulnerabilities, we are able to expand our world to not only understand our commonalities, but to get a new view of what we thought was inalterable. By sharing my own experience as an out-sider, I am better able to encourage students to consider more deeply the opinions of others and to learn …

A Stitch In Time Saves Nine: How The State Of Ohio Can Save Money And Distress Through Legal Training For Pre-Service Teachers, Karin Mika, Christine Mika

Law Faculty Articles and Essays

For simplicity, this Note will focus on the educational requirements for high school teachers rather than elementary or middle school teachers. Here, the requirements include core content instruction, literacy instruction, and a 12-week student teaching experience. Additionally, ODHE issues a vague requirement of preparation in six different Ohio school-related standards. Only one of those standards, the Ohio Standards for the Teaching Profession, even mentions correctly applying the law.

There is clearly a need for some form of legal preparation for teachers in Ohio that must take place before an individual becomes a teacher. Not only is there an ethical obligation …

Lessons Of The Past And The Humanitarian Outreach Of Poland To Ukrainian Refugees, Karin Mika

Law Faculty Articles and Essays

The reaction of Poland and its people is a refreshing departure from the historic blood rivalries of the past. This is similarly true of both Romania and Hungary; however, it is Poland that has absorbed the majority of Ukrainian refugees and Poland that has the most historically contentious relationship with Ukraine. Poland’s current humanitarian efforts with respect to its Ukrainian neighbors is evidence that some lessons have been learned from the past. Perhaps there is hope that some of the centuries old blood feuding can come to an end and countries can better work toward cooperative relationships in the future.

Designing An Americans With Abilities Act: Consciousness, Capabilities, And Civil Rights, Laura C. Hoffman, Zachary E. Shapiro, Allison Rabkin Golden, Gregory E. Antill, Katherine Fang, Chaarushena Deb, Elizabeth Clarke, Alexis Kallen, Hanya M. Qureshi, Kai Shulman, Caroline V. Lawrence, Megan S. Wright, Joseph J. Fins

Law Faculty Articles and Essays

The Americans with Disabilities Act (ADA) is a seminal piece of legislation aimed at protecting those with disabilities from discrimination. The ADA, however, has not been consistently able to integrate people with disabilities successfully into society. With a specific focus on individuals with serious brain injuries, this Article aims to provide insight into the shortcomings of the ADA, specifically focusing on lackluster enforcement of the legislation and its failure to incorporate promising new technologies. These limitations of the ADA are made even more clear in light of the evolution occurring in the understanding of rights and capabilities. As such, the …

U.S. Recognition Practice: Realism, Legitimacy, Or Pragmatism?, Milena Sterio

Law Faculty Articles and Essays

This Article analyzes recent United States' recognition practice and attempts to decipher the United States' apparent shift in its recognition practice toward a realist approach and/or toward focusing on recognizing new borders. As outlined below, this Article concludes that United States' recognition practice, toward both new regimes as well as borders, seems to be driven by pragmatic concerns rooted in American foreign policy as well as American political and strategic interests in a given country or region. Thus, it may be inaccurate to discuss such recognition practices as realist or legitimacy-based in any normative sense; instead, it may be more …

Obergefell V. Hodges—And The Use Of Oral Argument And Storytelling To Reinforce Competencies In The Legal Writing Classroom, Karin Mika

Law Faculty Articles and Essays

Legal writing professors struggle with trying to balance learning skills with the bigger picture of learning that law is ultimately about having the power to change lives. Often, learning the skills becomes completely separated from the human aspect of the law. Although we all work toward unifying the two concepts, it is not always done by having discussions about the bigger issues, or even having the students look at more traditional sources such as briefs or even law review articles. Oyez and the oral tradition of storytelling presented by radio (or other similar resources) have the potential of more fully …

Talking Foreign Policy: "Blood & Treasure", Milena Sterio, Michael P. Scharf, Gregory P. Noone, Sandra Hodgkinson, Darin Johnson

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to talkingforeignpolicy@case.edu.

SEPTEMBER 28, 2021 BROADCAST

Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh

Law Faculty Articles and Essays

Fourteenth Amendment substantive due process fundamental rights doctrine is about love. It is, at least, based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, the case in which the Supreme Court held that same-sex marriage is a fundamental right of individual autonomy and dignity.

Part I of this Article discusses the concept of love. Part II examines Justice Kennedy’s majority opinion in Obergefell and argues that it expresses unconditional love for LGBT people in tone, language, and substance. Part III argues that, in Obergefell, Kennedy’s key reasons for concluding that marriage is …

Natural Law And Universal Human Rights, David F. Forte

Law Faculty Articles and Essays

Abdullahi An-Na'im has set his life's quest on attempting to find a way that Muslim society can be attuned to the moral commands of the Universal Declaration of Human Rights, a Western creation. At present, the Shari'a and the Declaration are in obvious tension, if not conflict, in areas such as freedom of religion and the rights of women. An-Na'im finds that the Shari 'a is a creation of man derived in history from an interpretation of Islamic sources. Muslims today can legitimately develop their own interpretation relying on the root sources of Islam, but only so long as those …

Reconnecting The Patient: Why Telehealth Policy Solutions Must Consider The Deepening Digital Divide, Laura C. Hoffman

Law Faculty Articles and Essays

This Article will attempt to untangle the complicated web of providing telehealth to those populations it is potentially capable of further alienating from access to healthcare including: 1) race/minority populations, 2) aging adults, 3) individuals with disabilities, 4) non-English speakers, 5) individuals living in rural areas, 6) socioeconomic class, and 7) children, in order to advance the argument that telehealth can be successful in providing healthcare access to these populations. Rather than suggesting that telehealth simply "cannot work" for these populations, instead consideration can and must meet these individuals through technology, access, and policy developments.

First, this Article will explain …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Law Faculty Articles and Essays

In 1997, the Taiwanese legislature amended the Code of Criminal Procedure to incorporate the core of the American Miranda rule into the legal system. The Miranda rule requires police officers and prosecutors to notify criminal suspects subject to custodial interrogation of their right to remain silent and their right to retain legal counsel. In subsequent amendments, the legislature enacted a series of laws to further reform interrogation practices in the same vein.

What happened next is a study in unintended consequences and the interdependence of law and culture. Using ethnographic methods and data sources collected over the past four years …

Grotian Moments And Statehood, Milena Sterio

Law Faculty Articles and Essays

Grotian Moments are instances of accelerated formation of customary law, sparked by significant world events, such as wars, terrorist attacks, or natural catastrophes. This Article applies the Grotian Moment theory to the legal criteria of statehood, in an attempt to assess whether an evolution in specific elements of statehood has resulted in such paradigm-shifting Grotian Moments. In Part II, this Article analyzes the Grotian Moment theory while distinguishing it from other types of customary law formation. Part III focuses on the legal theory of statehood and each of its constitutive elements. Part IV discusses whether any such elements of statehood …

Amicus Curiae Observations By Public International Law & Policy Group, Milena Sterio, Michael P. Scharf, Paul R. Williams

Law Faculty Briefs and Court Documents

The amicus brief argues that in a case where the defendant alleges a ground excluding criminal responsibility (an affirmative defense), such as mental illness or duress, the defendant has an evidentiary burden to produce some evidence to support his/her claim of mental illness or duress, but that the prosecution retains the legal burden of proof to establish the defendant's responsibility beyond reasonable doubt.

“This ruling will have repercussions for future cases where the defendant asserts a mental illness or duress affirmative defense. Depending on how the ICC decides, future defendants will have to meet a specific evidentiary (or legal) burden …

Brief Of Amicus Curiae Professors Elizabeth A. Clark, Robert F. Cochran, Jr., Carl H. Esbeck, David F. Forte, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, And David A., Skeel, Supporting Petitioners, David Forte, Elizabeth A. Clark, Robert F. Cochran Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, David A. Skeel

Law Faculty Briefs and Court Documents

The case concerns the "church autonomy doctrine" based on the Free Exercise Clause of the First Amendment, which declares that courts may not inquire into matters of church government or into disputes of faith and doctrine. Will McRaney was fired from a leadership position in the Southern Baptist Convention because of a conflict over policies relating to the expansion of the Baptist faith. He sued the Southern Baptist Convention in tort.

The district court dismissed the suit on the grounds of the church autonomy doctrine. The Fifth Circuit reversed the district court's dismissal as "premature," asserting that there were possible …

Darryl Robinson's Model For International Criminal Law: Deontic Principles Developed Through A Coherentist Approach, Milena Sterio

Law Faculty Articles and Essays

Darryl Robinson’s new book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, presents a compelling argument: that international criminal law would benefit from deontic reasoning. According to Robinson, this type of deontic reasoning “requires us to consider the limits of personal fault and punishability,” and is a “normative reasoning that focuses on our duties and obligations to others.” Moreover, Robinson argues in this book that coherentism is the best method for identifying and defining deontic principles. Robinson explains that coherentism is an approach where “[w]e use all of our critical reasoning tools to test past understandings …

The Qualified Immunity Paradox And The Sixth Circuit’S Moderwell Opinion: A Harbinger Of Better Things To Come?, Doron M. Kalir

Law Faculty Articles and Essays

This note discusses the requirement of "clearly-established law," which a plaintiff needs to show in order to overcome a qualified immunity defense. This requirement--in essence, asking a plaintiff to show that someone else in their shoes has already prevailed in similar circumstances--may lead to an infinite regression paradox. The Note discusses this paradox and the ways in which the Supreme Court, and now the Sixth Circuit, have begun to resolve it.