Law Commons^™

When Robots Trespass, Thomas Simmons

Faculty Publications

No abstract provided.

Symposium: Business In The Roberts Court - Introduction: Still In Search Of The Pro-Business Court, Jonathan H. Adler

Faculty Publications

The Supreme Court under Chief Justice Roberts is often described as a “pro-business” court. Many commentators believe that Court is particularly sympathetic to business interests in concerns. A 2016 volume, Business and the Roberts Court turned a critical eye to this hypothesis. In September 2016, the Center for Business Law & Regulation at the Case Western Reserve University School of Law hosted a symposium to further explore how the Roberts Court deals with business issues. Papers from this conference were published in the Case Western Reserve Law Review, and this brief article served as the Introduction for this symposium.

Exploitation In Medical Research: The Enduring Legacy Of The Tuskegee Syphilis Study, Ruqaiijah Yearby

Faculty Publications

No abstract provided.

The Coalition Model, A Private-Public Strategic Innovation Policy Model For Encouraging Entrepreneurship And Economic Growth In The Era Of New Economic Challenges, Anat Alon-Beck

Faculty Publications

Innovation driven entrepreneurial firms have an important role in contributing to job creation, to generating technological innovation and to stimulating the United States economy. However, there is a notable recent decline in emerging growth entrepreneurial activity in the United States. The Coalition Model proposes ways to maximize opportunities for industry, academia and government to collaborate and build sustainable relationships, in order to help convert the current challenges in the U.S. market into opportunities.

Designing a new innovation strategy policy will lead the United States in generating innovation, technology and economic growth, as well as help the federal government harness new …

Tribute To Professor Jonathan L. Entin, B. Jessie Hill

Faculty Publications

Tribute to Professor Jonathan Entin.

Tribute To Professor Jonathan L. Entin, Jessica W. Berg, Michael P. Scharf

Faculty Publications

Tribute for Professor Jonathan Entin.

Outside But Within: The Normative Dimension Of The Underworld In The Television Series “Breaking Bad” And “Better Call Saul”, Manuel A. Gomez

Faculty Publications

No abstract provided.

Birthright Citizenship Under Attack: How Dominican Nationality Laws May Be The Future Of U.S. Exclusion, Ediberto Román, Ernesto Sagas

Faculty Publications

Attacks on birthright citizenship periodically emerge in the United States, particularly during presidential election cycles. Indeed, blaming immigrants for the country’s woes is a common strategy for conservative politicians, and the campaign leading up to the 2016 presidential election was not an exception. Several of the Republican presidential candidates raised the issue, with President Donald Trump making it the hallmark of his immigration reform platform. Trump promised that, if elected, his administration would “end birthright citizenship.” In the Dominican Republic, ending birthright citizenship and curbing immigration are now enshrined into law, resulting from a significant constitutional redefinition of Dominican citizenship …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Oseitutu

Faculty Publications

This Article compares the natural rights property framework with the human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition, but they appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Advocates of a human rights approach to intellectual property contend, however, that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Ip Enforcement Under The Tpp: Civil And Administrative Procedures And Remedies, Provisional Measures In Tpp (Articles, 18.71-18.76), J. Janewa Osei-Tutu

Faculty Publications

No abstract provided.

Selling Stock And Selling Legal Claims: Alienability As A Constraint On Managerial Opportunism, Charles R. Korsmo

Faculty Publications

Scholars have long recognized the importance of market forces as a tool for disciplining the management of public corporations and reducing agency costs. If managers loot or otherwise mismanage the firm, the firm’s stock price will suffer, raising its cost of capital and leaving managers exposed to the threat of a hostile takeover. In recent decades, changing patterns of stock ownership have threatened the viability of this market check on mismanagement. Institutional investors, and particularly index funds, own an increasing portion of publicly traded firms, and face substantial liquidity and other barriers to simply selling their positions. To the extent …

Tribute To Professor Jonathan L. Entin, Sharona Hoffman

Faculty Publications

Tribute to Professor Jonathan Entin.

Foreword: The Art Of International Law, Michael P. Scharf, Katie Steiner

Faculty Publications

September 16, 2016, Case Western Reserve University School of Law’s Frederick K. Cox International Law Center, in conjunction with the celebration of the Cleveland Museum of Art’s centennial anniversary, convened a day-long conference with leading scholars and practitioners from around the world to explore topics at the intersection of art and international law.

Invisible Error, Cassandra Burke Robertson

Faculty Publications

When trial becomes a luxury, retrial can start to look downright decadent. Scholars have documented the “vanishing trial” in recent decades, exploring the various causes and effects of declining trial rates. Retrial, if mentioned at all, is portrayed as a relatively inefficient vehicle for error correction at best. At worst, it is seen as a threat to the sanctity of the ever-rarer jury verdict.

But the jury trial is only endangered, not yet extinct. And continuing to protect the constitutional right to a jury requires appreciating the role of retrial within the due-process framework. When the jury’s verdict contradicts the …

Restoring Chevron's Domain, Jonathan Adler

Faculty Publications

For some three decades, Chevron USA v. Natural Resources Defense Council has stood at the center of administrative law. Today, however, there are doubts about the doctrine’s continued vitality, and perhaps even its ultimate desirability. This brief article, based upon remarks delivered at Missouri Law Review symposium, suggests the scope of Chevron’s domain should be determined by its doctrinal grounding. Specifically, insofar as the Court’s subsequent application and elucidation of Chevron have indicated that the doctrine is predicated on a theory of delegation, courts should only provide such deference when the relevant power has been delegated by Congress. Correspondingly, …

One Size Does Not Fit All: A Contextual Approach To Fiduciary Duties Owed To Preferred Stockholders From Venture Capital To Public Preferred To Family Business, Juliet P. Kostritsky

Faculty Publications

This Article examines whether corporations should owe fiduciary duties to its preferred stockholders as preferred stockholders across all settings of preferred stock holding. In one context, sophisticated venture capitalists purchase preferred stock after carefully negotiating the stock price, control over the corporate governance, and other key stipulations by contract. Additionally, because the initial preferred stockholder could protect its interests through staged financing or board control, the preferred stockholder might not discount the stock even if it lacked protection since the other protective devices made the lack of such protections inconsequential so the initial holders won’t pay for these added fiduciary …

The History Of The Florida Supreme Court, M C. Mirow

Faculty Publications

This article describes the challenges to writing the history of Florida's colonial courts in the Spanish and British periods from 1513 to 1821. These courts are an important yet understudied aspect of Florida legal history.

What We Buy When We "Buy Now", Aaron K. Perzanowski, Chris Jay Hoofnagle

Faculty Publications

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent …

Are Recoveries For Losses Taxable? The Commissioner’S Nonacquiescence In Cosentino Muddies The Waters, Erik M. Jensen

Faculty Publications

After the recent presidential election, Section 1043 of the Internal Revenue Code has received both public visibility and substantial criticism. The section permits certain public officials to defer gain on the sale of assets required to satisfy conflict-of-interest rules, a benefit of sorts characterized by critics as an unwarranted giveaway to the wealthy. This article examines the particulars of Section 1043 and generally defends the way it works. The article also considers whether Section 1043 can be availed of by a President of the United States who divests appreciated assets because of conflict-of-interest concerns, concluding (perhaps surprisingly) that the statutory …

Wrongful Death Conflicts For Plaintiffs' Attorneys, Thomas Simmons

Faculty Publications

No abstract provided.

Why And How The Supreme Court Should Have Decided O’Bannon V Ncaa, Matthew J. Mitten

Faculty Publications

Despite requests by both parties, the United States Supreme Court refused to grant a writ of certiorari in O’Bannon v. NCAA, the first federal appellate court decision holding that an NCAA student-athlete eligibility rule violates section 1 of the Sherman Act. The Ninth Circuit ruled that NCAA rules prohibiting intercollegiate athletes from receiving any revenue from videogames and telecasts incorporating their names, images, or likenesses unreasonably restrain economic competition among its member universities in the college education market in which these athletes purchase higher education services and sell their athletic services, which violates federal antitrust law. Circuit court rulings …

Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck

Faculty Publications

Under prenatal abandonment theory, fathers can lose their parental rights to nonmarital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers' paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of social factors: the link between pregnancy and increased rates of sexual assault, domestic violence, and domestic homicide; …

What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

For years, criminal defense lawyers and commentators have wrestled with thorny ethical and legal issues surrounding defense counsel's obligations with respect to handling items of physical evidence. Commentators have usually focused on the question of whether the lawyer should take possession of physical evidence of a crime as well as on counsel's obligations and options once the lawyer purposively or inadvertently comes into possession of such evidence. After discussing what the ethics rules and the law require concerning handling physical evidence, commentators have generally cautioned lawyers not to take possession of suspected contraband or possible evidence of a crime, except …

Assessing The Relative Influence And Efficacy Of Public And Private Food Safety Regulation Regimes: Comparing Codex And Global Gap Standards, Sam F. Halabi, Ching-Fu Lin

Faculty Publications

An extensive global system of private food regulation is under construction, one that exceeds conventional regulation, thought of as being driven by public authorities like FDA and USDA in the U.S. or the Food Standards Agency in the UK. Agrifood and grocer organizations, in concert with some farming groups, have been the primary designers of this new food regulatory regime. These groups have established alliances that compete with national regulators in complex ways. This article analyzes the relationship between public and private sources of food safety regulation by examining standards adopted by the Codex Alimentarius Commission, a food safety organization …

Developing A Matrix For Intellectual Property As Subject Of International Law, Sam F. Halabi

Faculty Publications

Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer's Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman. Paul Uhlir. and Tom Dedeurwaerdere have …

Wrongly Affirmed Without Opinion, Dennis D. Crouch

Faculty Publications

In his 1909 treatise on appellate jurisdiction, the future Justice Benjamin Cardozo explained the role of appellate courts - not simply "declaring justice between man and man, but . .. settling the law." In Justice Cardozo's view, the appellate courts exist "not for the individual litigant, but for the indefinite body of litigants, whose causes are potentially involved in the specific cause at issue." Justice Cardozo's vision more than a century ago still resonates, and precedential opinions form a mainstay of appellate court activity nationwide. However, one court of appeals is quite different from the rest. The Court of Appeals …

Technically Bankrupt, Brook E. Gotberg

Faculty Publications

What is the difference between a robot and a lawyer? The answer is not a joke, and may soon be a matter of great urgency for attorneys, as the legal field attempts to adjust to disruptive technologies that are likely to permanently alter the way that law is practiced throughout the United States. The consequences for failing to adjust to technological disruption for any industry, as demonstrated in recent years by big-name, bankrupt companies, can be disastrous. Legal tools found in chapter 11 of the Bankruptcy Code are largely intended to assist debtors in reorganizing their business affairs, preserving value …

Recalibrating The Federal Economic Crime Guideline: An Admiring Rejoinder To Judge Bennett And Friends, Frank O. Bowman Iii

Faculty Publications

I have read with the greatest pleasure the article on federal white-collar crime sentencing by U.S. District Judge Mark Bennett and Professors Justin Levinson and Koichi Hioki. They review the history of fraud sentencing in the Sentencing Guidelines era, offer a persuasive critique of some deficiencies in the current regime, present the results of their own survey of judicial attitudes toward sentencing a representative fraud case, and propose a series of useful prescriptions for change. Inasmuch as they are kind enough to cite my own work approvingly throughout the article, it will come as no surprise that I agree with …

The Tax-Immigration Nexus, Tessa R. Davis

Faculty Publications

Tax and immigration law have a shared interest in defining community. In order to implement a tax, we must know who belongs to the taxable community. At the same time, immigration law must define and administer the requirements for membership in the national community. Despite the differing objectives of tax and immigration law—raising revenue and deciding who may enter, remain, and become a citizen in the United States, respectively—both of these regimes uses a concept of citizenship to define their respective communities. Starting from this common thread of the relevance of citizenship to both immigration and tax law, this Article …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Josh Gupta-Kagan

Faculty Publications

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois—the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley’s requirement that states prove …