Law Commons^™

Recent Reforms In Eu Law: Recognition And Enforcement Of Judgments, Samuel P. Baumgartner

Akron Law Faculty Publications

The European Union has just adopted a set of amendments to the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and the recognition and enforcement of foreign judgments. This article discusses the Regulation and the adopted amendments regarding the recognition and enforcement of judgments and argues that these amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation in the European Union over the last two decades. The article concludes with an analysis of both the amendments and the underlying changes for litigants and law reformers in the United States, …

Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca

Akron Law Faculty Publications

For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …

The Farmer In Chief: Obama's Local Food Legacy, Sarah J. Morath

Akron Law Faculty Publications

As criticism over America’s food policy has grown, many scholars have offered suggestions for reform. Complementing this body of scholarship, The Farmer In Chief identifies and assesses recent changes to federal laws and policies as they affect ‘local food’ and describes local farmers’ awareness of and reaction to these changes. These changes and the farmers’ responses show greater recognition of local food by the President and federal government in three ways: increased inclusion of local food in legislation and policy discussions; increased awareness of the benefits of local food production and consumption; and increased consumer access to local food. But …

Cracks In The Profession's Monopoly Armor, John Sahl

Akron Law Faculty Publications

This article examines the legal profession’s long-held monopoly in the nation’s legal services market in the context of two recent developments. The first development concerns the Conference of Chief Justices’ (CCJ) recent adoption of Resolution 15, “Encouraging Adoption of Rules Regarding Admission of Attorneys Who Are Dependents of Service Members.” Resolution 15 urges state bar authorities to develop and implement rules permitting admission without examination of lawyers who are military dependents. The CCJ’s rule promotes competition by facilitating the movement of lawyers from one geographic market to another.

The second development is Washington Supreme Court’s new Admission to Practice Rule …

"Pennies On The Dollar": Reallocating Risk And Deficiency Judgment Liability, Kristen Barnes

Akron Law Faculty Publications

Many homeowners are unaware that they face the prospect of crushing personal financial liability if they default on their mortgage loans. While owners may appreciate that they can lose their homes to the lender if they fail to make payments in accordance with their loan terms, many do not fully comprehend that the exposure they have under such circumstances does not end with relinquishing the financed property. In what are known as recourse states, if the lender forecloses and the foreclosure sale does not yield an amount sufficient to cover the borrower’s outstanding debt balance, the lender may file for …

Should States Ban The Use Of Non-Positive Interventions In Special Education? Re-Examining Positive Behavior Supports Under The Idea, Elizabeth Shaver

Akron Law Faculty Publications

In the 1980s and 1990s, behavior analysts vigorously debated ethical concerns about the use of certain behavioral interventions to address severe behavior of disabled children. In 1997, while that debate was still ongoing, the Individuals with Disabilities Education Act (IDEA) was amended to require educators to consider the use of “positive behavioral interventions and supports,” among other strategies, to address problem behavior that impedes a disabled child’s learning. Since 1997, the “positive behavioral interventions and supports” framework has shifted focus, but IDEA’s language essentially has stayed the same. In addition, some states have enacted poorly-worded statutes or regulations in order …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Akron Law Faculty Publications

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

From Awkward Law Student To Articulate Attorney: Teaching The Oral Research Report, Sarah J. Morath

Akron Law Faculty Publications

Busy attorneys want results quickly and in a clear and organized manner. Many prefer associates to report their research results orally in a face-to-face conversation rather than a written memo. In the first year of law school, however, there are not many opportunities for students to practice having conversations about the law in a thoughtful and professional manner. While the Socratic dialogue common in most first year courses challenges students to think on their feet, this method does not teach students how to describe their research path, explain their analysis of a client’s legal issue, or make a recommendation on …

The Joy Of Collaboration: Reflections On Teaching With Others, Richard Strong, Sarah Morath, Elizabeth A. Shaver

Akron Law Faculty Publications

Three legal writing professors who have worked collaboratively for several years describe why their experience collaborating with one another worked so well. In particular, this essay outlines the many personal benefits that can be experienced as part of a collaborative process. This essay also describes several benefits that students and law schools can experience. For those interested in collaborating with others, the essay concludes with some useful tips.

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Akron Law Faculty Publications

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to …

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Faculty Publications

Chief Justice John Roberts upheld the individual mandate of the Affordable Care Act because he rejected formalism and embraced realism in constitutional analysis, and because he deferred to Congress, acknowledging its right to make policy choices.

Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Akron Law Faculty Publications

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Faculty Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Motions In Motion: Teaching Advanced Legal Writing Through Collaboration, Elizabeth Shaver, Sarah Morath, Richard Strong

Akron Law Faculty Publications

Legal education is at a crossroads. Practitioners, academics, and students agree that more experiential learning opportunities are needed in law school.

In 2007, the Carnegie Foundation report, Educating Lawyers: Preparation for the Profession of Law (Carnegie Report), called for law schools to provide apprentice experiences to better prepare prospective attorneys for the world of practice. That same year, the Best Practices in Legal Education advocated for “experiential education” and “encourage[d] law school[s] to expand its use.” More recently, in August 2011, the American Bar Association adopted a resolution sponsored by the New York Bar Association summoning law schools to “focus …

Motions In Motions: Teaching Advanced Legal Writing Through Collaboration, Sarah J. Morath, Elizabeth Shaver, Richard Strong

Akron Law Faculty Publications

Legal education is at a crossroads. Practitioners, academics, and students agree that more experiential learning opportunities are needed in law school.

In 2007, the Carnegie Foundation report, Educating Lawyers: Preparation for the Profession of Law (Carnegie Report), called for law schools to provide apprentice experiences to better prepare prospective attorneys for the world of practice. That same year, the Best Practices in Legal Education advocated for “experiential education” and “encourage[d] law school[s] to expand its use.” More recently, in August 2011, the American Bar Association adopted a resolution sponsored by the New York Bar Association summoning law schools to “focus …

A Mild Winter: The Status Of Environmental Preliminary Injunctions, Sarah J. Morath

Akron Law Faculty Publications

Since enactment of environmental legislation in the 1970s, the preliminary injunction standard articulated by the Supreme Court for environmental claims has evolved from general principles to enumerated factors. In Winter v. Natural Resource Defense Council, Inc., the U.S. Supreme Court’s most recent refinement, the Court endorsed but failed to explain the application of a common four-factor test when it held that the alleged injury to marine mammals was outweighed by the public interest of a well-trained and prepared Navy. While a number of commentators have speculated about Winter’s impact on future environmental preliminary injunctions, this article seeks to more precisely …

It's Not All Statistics: Demystifying Empirical Research, Sarah J. Morath

Akron Law Faculty Publications

Although Oliver Wendell Holmes was touting the merits of empirical research over one hundred years ago, only recently have legal academics created a journal and conference dedicated to empirical legal studies. Interestingly, topics of interest to legal writing professors have been a source for empirical research well before the emergence these specialized journals and conferences. For example, empirical research comparing the use of legal prose to plain English in appellate briefs was taking place over 25 years ago. In 1996, the second volume of The Journal of Legal Writing Institute included an empirical study evaluating which professors’ comments students found …

Motions In Motion: Teaching Advanced Legal Writing Through Collaboration, Richard Strong, Elizabeth Shaver, Sarah Morath

Akron Law Faculty Publications

Legal education is at a crossroads. Practitioners, academics, and students agree that more experiential learning opportunities are needed in law school.

In 2007, the Carnegie Foundation report, Educating Lawyers: Preparation for the Profession of Law (Carnegie Report), called for law schools to provide apprentice experiences to better prepare prospective attorneys for the world of practice. That same year, the Best Practices in Legal Education advocated for “experiential education” and “encourage[d] law school[s] to expand its use.” More recently, in August 2011, the American Bar Association adopted a resolution sponsored by the New York Bar Association summoning law schools to “focus …

Battling Collateral Consequences: The Long Road To Redemption, Joann M. Sahl

Akron Law Faculty Publications

Mississippi Governor Haley Barbour issued 193 controversial pardons on January 10, 2012, his last day in office. Former Ohio Governor Ted Strickland, who left office in January 2011, also faced criticism when he granted 280 pardons. Both governors publicly acknowledged that they granted most of their pardons to rehabilitated ex-offenders who sought to overcome the civil consequences of their criminal convictions. These consequences, known as collateral consequences, impede the ability of millions of ex-offenders to find employment, housing or other important benefits.

This Article explores the increasingly important, but controversial, role that governors play in the battleground of collateral consequences. …

Lrw's The Real World: Using Real Cases To Teach Persuasive Writing, Elizabeth Shaver

Akron Law Faculty Publications

Today’s law students approach their legal education with a clear focus on acquiring the skills needed to succeed in the “real world” of lawyering. Legal writing professors can leverage this focus on the real world by using real cases to teach the principles of persuasive writing. This article describes a “case-study” method in which students analyze materials from real cases to learn the most critical components of persuasive writing – development of a theme, organization of legal arguments, and best use of case authority. As part of this exercise, students step into the role of the practitioner and construct arguments …

Back To The Future Of Abortion Regulation In The First Term, Tracy A. Thomas

Akron Law Faculty Publications

Abortion and women's reproductive rights have reemerged as front-page news. As popular culture grapples with election rhetoric, states continue to engage in aggressive anti-abortion regulation of first-term abortions. In the first half of 2011, more abortion bills have passed to restrict abortion than ever before. The 162 new abortion bills passed by 19 states in the first six months of the year dwarf the average number of abortion bills for the last three decades of 15 per year. Even more, these bills propose significantly more stringent limits on abortion than in the past, including mandatory ultrasound viewings, intensive counseling, and …

Teaching Remedies As Problem-Solving: Keeping It Real, Tracy A. Thomas

Akron Law Faculty Publications

I began teaching Remedies as a problem-solving course over a decade ago. I was then in my third year of teaching and found that the Remedies course just wasn’t clicking. The students, mostly third-years, were bored with the Socratic method and seemingly resistant to the demands of this important course. My teaching grew more cumbersome as I waded deeper into the mire of the complexities of a transsubstantive field. Remedies class felt like a slog in the mud for all of us. After just a few years with the course, I thought there had to be a better way. I …

Supreme Court Review: Legalistic Argle-Bargle, Molly Mcburney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel

Akron Law Faculty Publications

No abstract provided.

Riding Into The Sunset In A "Post-Racial" World: Lessons In Equal Educational Opportuity And College Admissions Schemes In France And The United States, Kristen Barnes

Akron Law Faculty Publications

The purpose of this paper is to evaluate and compare two strategies designed to promote ethno-racial inclusion that were initiated in France and the United States in the context of higher education. In particular, I examine the Priority Education Agreements Program or CEP, an innovative affirmative action program which was implemented in 2001 by the Sciences Po, one of France’s elite universities, in relation to the Texas Ten Percent Plan that was established in 1997 in the United States by the State of Texas.

Sections I and II of this paper will provide the historical and social contexts in which …

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Akron Law Faculty Publications

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.

Same-Sex Marriage Litigation Update - September 17, 2012, Wilson Huhn

Akron Law Faculty Publications

Same-sex marriage cases are reaching the federal circuit courts and may be heard by the Supreme Court in the near future. This presentation summarizes the status of same-sex marriage litigation.

Patent Reform And Best Mode: A Signal To The Patent Office Or A Step Toward Elimination?, Ryan G. Vacca

Akron Law Faculty Publications

On September 16, 2011, President Obama signed the America Invents Act (AIA), the first major overhaul of the patent system in nearly sixty years. This article analyzes the recent change to patent law's best mode requirement under the AIA. Before the AIA, patent applicants were required, at the time of submitting their application, to disclose the best mode of carrying out the invention as contemplated by the inventor. A failure to disclose the best mode was a basis for a finding of invalidity of the relevant claims or could render the entire patent unenforceable under the doctrine of inequitable conduct. …

An Ecosystem Management Primer: History, Perceptions, And Modern Definition, Kalyani Robbins

Akron Law Faculty Publications

This chapter will first take the reader on a journey through the history of ecosystem management, providing a summary of how it has grown and developed over the past two decades. This will only naturally lead to the next part of the chapter, which focuses on the present understanding of how ecosystem management is to be defined and applied, as well as the variety in perceptions of this modern understanding. Finally, it will serve as an introduction to the remainder of the book, previewing the various contributions collected here, offered by some of the best-known scholars in the field of …

Akron Law School: The Early History Of The University Of Akron School Of Law: 1921-1959, Richard Aynes, Margaret E. Matejkovic

Akron Law Faculty Publications

This manuscript contains an initial history of the Akron Law School (1921-1959) the predecessor of the University of Akron School of Law.

The school was founded in 1921 as an evening school. This manuscript begins with a biographical sketch of the founding Dean, Judge Charles R. Grant. Grant was an underage Union soldier in the Civil War who participated in the capture of New Orleans and whose service was recognized by the U.S. Congress. At a time when less than one percent of the people in the nation had a college degree, he graduated from Western Reserve College (then in …

Paved With Good Intentions: The Fate Of Strict Liability Under The Migratory Bird Treaty Act, Kalyani Robbins

Akron Law Faculty Publications

The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA would theoretically apply to countless ordinary life activities, such as driving a car or having windows on one’s home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA’s misdemeanor application, forcing the courts to do so on an …