Law Commons^™

Book Review: Harold Bruff, Untrodden Ground: America's Evolutionary Presidency, Martin S. Flaherty

Case Western Reserve Law Review

No abstract provided.

Symposium Executive Discretion And The Administrative State: Introduction, B. Jessie Hill

Case Western Reserve Law Review

No abstract provided.

Political Constraints On Unilateral Executive Action, Dino P. Christenson, Douglas L. Kriner

Case Western Reserve Law Review

No abstract provided.

A Slapp Back On Track: How Shady Grove Prevents The Application Of Anti-Slapp Laws In Federal Courts, Tyler J. Kimberly

Case Western Reserve Law Review

No abstract provided.

The Spectrum Of Competency: Determining A Standard Of Competence For Pro Se Representation, Ellesha Lecluyse

Case Western Reserve Law Review

No abstract provided.

"Laboratories Of Democracy" Or "Machinery Of Death"? The Story Of Lethal Injection Secrecy And A Call To The Supreme Court For Intervention, Harrison Blythe

Case Western Reserve Law Review

No abstract provided.

Opportunity-Cost Conflicts In Corporate Law, Abraham J.B. Cable

Case Western Reserve Law Review

Delaware corporate law has a new brand of loyalty claim: the opportunity-cost conflict. Such a conflict arises when a fiduciary operates under strong incentives to withdraw human and financial capital for redeployment into new investment opportunities. The concept has its roots in venture capital investing, where board members affiliated with venture capital funds may have incentives to shut down viable start-ups in order to focus on more promising companies.

Recognizing this type of conflict has conceptual value-it provides a coherent framework for assessing a fiduciary's incentives, and it may help explain frequently criticized features of corporate fiduciary law. But this …

Rethinking Jacob & Youngs V. Kent, Victor P. Goldberg

Case Western Reserve Law Review

The legal background will be described in Part I. I begin with the development of the doctrine of substantial performance and the role of willfulness. If the contractor’s compensation were conditional on the architect providing a certificate of completion, what happens if the architect refused to provide the certificate? If a court concludes that the work had been substantially performed, how should the contractor’s award be modified? In Part II, I revisit Jacob & Youngs to show how the result followed from the pre-existing law. That, of course, does not mean that it was a sensible outcome. In Part III, …

Every Day Counts: Proposals To Reform Idea's Due Process Structure, Elizabeth A. Shaver

Case Western Reserve Law Review

It is a core principle of special education legislation that the parents of children with disabilities can challenge the child's educational programming through an administrative due process hearing. Yet for years the special education due process structure has been criticized as inefficient, anticollaborative, and prohibitively expensive. Those criticisms have given rise to widely varying proposals to reform special education due process, proposals that range from adding certain alternative dispute resolution mechanisms to a wholesale replacement of the due process structure.

This article provides a comprehensive analysis of special education dispute resolution. The article first examines the lively debate among scholars …

Protecting Medical Marijuana Users In The Workplace, Kathleen Harvey

Case Western Reserve Law Review

Part I of this Note gives a brief history of marijuana regulation in the United States. Part II describes how drug testing works and why employers do it. And it presents some of the issues that the federal prohibition poses for employers and employees. Part III analyzes state court opinions that have addressed the question of whether employers may fire employees for off-site medical marijuana use that does not impair work performance. Every court thus far has ruled in favor of the employer, but some of the opinions and dissents acknowledge that the legislatures could amend their states’ statutes to …

Volume 66 Issue 2 (2015), Case Western Reserve Law Review

Case Western Reserve Law Review

No abstract provided.

Book Review: Michael Stokes Paulsen And Luke Paulsen, The Constitution: An Introduction, Shlomo Slonim

Case Western Reserve Law Review

Anyone interested in learning more about the Constitution, its interpretation and development over the past two-plus centuries, and which issues are today the most critically divisive, will find this work to be a superb and eminently readable introduction. It is instructive and enlightening without being ponderous. The prose is crisp and straightforward, unburdened by legal jargon. There are no footnotes or endnotes. And the reader requires no legal dictionary to appreciate the thrust of the discussion at each point.

What The Constitution Means By “Duties, Imposts, And Excises”—And "Taxes" (Direct Or Otherwise), Robert G. Natelson

Case Western Reserve Law Review

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary sources, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era and that the term “direct tax” was more expansive than commonly realized.

The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that …

Trial By Traditional Probability, Relative Plausibility, Or Belief Function?, Kevin M. Clermont

Case Western Reserve Law Review

Almost incredible is that no one has ever formulated an adequate model for applying the standard of proof. What does the law call for? The usual formulation is that the factfinder must roughly test the finding on a scale of likelihood. So, the finding in a civil case must at least be more likely than not or, for the theoretically adventuresome, more than fifty percent probable. Yet everyone concedes that this formulation captures neither how human factfinders actually work nor, more surprisingly, how theory tells us that factfinders should work.

An emerging notion that the factfinder should compare the plaintiff’s …

Rehabilitation Through Empowerment: Adopting The Consumer-Participation Model For Treatment Planning In Mental Health Courts, Mcdaniel M. Kelly

Case Western Reserve Law Review

Part I of this Note is a brief overview of the mental health court system. It is broken into two subparts: first, a brief description of the system’s goals and success; and, second, a brief overview of mental health courts’ general structure. The theme here is that the term “system” is really a misnomer, and there is plenty of room for development.

In Part II, I introduce some of the barriers to achieving voluntary participation. This section also has two subparts: first, a discussion on target participants’ reduced capacities; and, second, a description of the structural shortcomings in mental health …

Digital Metal: Regulating Bitcoin As A Commodity, Mitchell Prentis

Case Western Reserve Law Review

In this Note, I will argue that Bitcoin should be categorized and regulated as a commodity. This treatment would be consistent with the economic behavior of Bitcoin’s users and would provide a clearer regulatory path for Bitcoin’s future. Additionally, categorizing Bitcoin as a commodity would provide increased clarity to existing regulatory efforts. Part I of this Note will briefly discuss the basic technological underpinnings of the Bitcoin system. Part II will quickly survey the current regulatory landscape around Bitcoin. Part III will examine Bitcoin’s identity crisis and explain why Bitcoin should not be categorized as a currency or a security—the …

Physician-Patient Speech: An Analysis Of The State Of Patients' First Amendment Rights To Receive Accurate Medical Advice, Harrison Blythe

Case Western Reserve Law Review

No abstract provided.

The Curious Case Of The Pompous Postmaster: Myers V. United States, Jonathan L. Entin

Case Western Reserve Law Review

No abstract provided.

Jimmy Carter's And James Miller's Revenge: The Reasons And The Consequences For Presidential And Congressional Power Of Measures To Ban Congressional "Earmarks", Joseph White

Case Western Reserve Law Review

No abstract provided.

Measuring Party Polarization In Congress: Lessons From Congressional Participation As Amicus Curiae, Neal Devins

Case Western Reserve Law Review

No abstract provided.

Presidential Control Of Adjudication Within The Executive Branch, Harold J. Krent

Case Western Reserve Law Review

No abstract provided.

Masthead, Volume 66 Issue 1 (2015)

Case Western Reserve Law Review

No abstract provided.

Derivative-Consent Doctrine And Open Windows: A New Method To Consider The Fourth Amendment Implications Of Mass Surveillance Technology, Alex Brown

Case Western Reserve Law Review

This Comment will show that the bulk collection of metadata from telephone calls and other electronic communications are permissible under the Fourth Amendment of the United States Constitution without a warrant. However, disclosing the contents of communications to government agencies and operating devices without the consent of their owner constitutes searches requiring a warrant.

The Emerging Eighth Amendment Consensus Against Life Without Parole Sentences For Nonviolent Offenses, Bidish J. Sarma, Sophie Cull

Case Western Reserve Law Review

As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison. Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals …

Symposium Marijuana, Federal Power, And The States: Introduction, Jonathan H. Adler

Case Western Reserve Law Review

No abstract provided.

Colorado's Rollout Of Legal Marijuana Is Succeeding: A Report On The State's Implementation Of Legalization, John Hudak

Case Western Reserve Law Review

No abstract provided.

Vertical Federalism, Horizontal Federalism, And Legal Obstacles To State Marijuana Legalization Efforts, Brannon P. Denning

Case Western Reserve Law Review

No abstract provided.

Banks, Marijuana, And Federalism, Julie Andersen Hill

Case Western Reserve Law Review

No abstract provided.

Marijuana Localism, Robert A. Mikos

Case Western Reserve Law Review

No abstract provided.

Masthead, Volume 65 Issue 4 (2015)

Case Western Reserve Law Review

No abstract provided.