Law Commons^™

The Constitutionally Inspired Approaches To Police Accountability For Violence Against Women In The U.S. And South Africa: Conservation Versus Transformation, Christopher J. Roederer

School of Law Faculty Publications

In this last term, the highest courts in the U.S. and South Africa, respectively, the United States Supreme Court in Town of Castle Rock, Colorado v. Gonzales and the South African Constitutional Court in N.K. v. Minister of Safety and Security, overturned decisions from their appellate courts, the Tenth Circuit and the Supreme Court of Appeals. … This article is not primarily concerned with a comparison of the doctrinal nuances of these three cases, or of the respective constitutional mechanisms that aided the courts in coming to their decisions. This article examines the comparison, or rather, the sharp contrast between …

Information Famine, Due Process, And The Revised Class Action Rule: When Should Courts Provide A Second Opportunity To Opt Out?, Jeannette Cox

School of Law Faculty Publications

Imagine your friend Alice, a young mother, comes to you for advice. Her baby has severe birth defects, which likely resulted from the morning sickness drug Alice took when she was pregnant. Alice has incurred tremendous hospital bills for her child and is afraid she will not have enough money to pay for the additional surgeries her child will need in the future. After looking over the documents she recently received, you tell her she has a fast-approaching deadline to decide whether to commit herself to accepting a settlement from the company that manufactured the morning sickness drug. Understandably, Alice …

Fractured Freedoms: The United States’ Postmodern Approach To Protecting Privacy, Adam Todd

School of Law Faculty Publications

Privacy law in the United States can be characterized as postmodern. It is fragmented and reflects postmodern paradox. This article is particularly concerned with the threats to the freedoms that underlie the right to privacy in the United States caused by this postmodern approach-particularly the lack of comprehensive regulation or protections against violations of privacy. The weaknesses of the United States' fragmented approach are apparent when contrasted to the more comprehensive and centrally-regulated European approach, such as that found in the European Data Privacy Directive.

But one cannot simply state that the United States should borrow the comprehensive European approach. …

Toward A Criminal Law For Cyberspace: A New Model Of Law Enforcement?, Susan W. Brenner

School of Law Faculty Publications

This article argues that one consequence of the increasing proliferation of computer technology and the attendant migration of human activities, including illegal activities, into cyberspace is that the efficacy of our traditional approach to enforcing the criminal law is eroding. (1) As Section II explains, it is already apparent that the traditional model is not an effective means of dealing with cybercrime, i.e., crime the commission of which entails the use of computer technology. (2)

We are therefore seeing the emergence of an alternative approach to law enforcement, (3) one that emphasizes collaboration between the public and private sectors and …

Toward A Criminal Law For Cyberspace: Distributed Security, Susan W. Brenner

School of Law Faculty Publications

Cybercrime creates unique challenges for the reactive model of crime control that has been predominant for approximately the last century and a half. That model makes certain assumptions about crime, which derive from characteristics of real-world crime. These assumptions do not hold for cybercrime, so the reactive model is not an appropriate means of dealing with online crime. The article explains how modified principles of criminal law can be utilized to implement a new, non-reactive model which can deal effectively with cybercrime. This model of distributed security emphasizes prevention, rather than reaction, which is achieved by holding citizens liable for …

The Growing Importance Of Advance Medical Directives In The Military, Thaddeus A. Hoffmeister

School of Law Faculty Publications

While the litigation in the Terri Schiavo case is an extreme example of what can go wrong in the health care decision-making process, it highlights the importance of advance medical directives (AMD) in helping to ensure patient autonomy during end-of-life medical treatment. Unfortunately, large segments of society, to include the military, are still unclear about the role of AMDs in patient care. Thus, this article provides a broad overview of AMDs and their legal applications with a particular emphasis on expanding their use in the military community. This article begins with a discussion of living wills and durable powers of …

The Legal Option: Suing The United States In International Forums For Global Warming Emissions, Andrew L. Strauss

School of Law Faculty Publications

The George W. Bush administration's refusal to deal seriously with the problem of global warming, perhaps the greatest environmental problem of our time, requires that the international community think seriously about alternative ways of inducing or even compelling the United States to meet its global responsibilities. One strategy being considered is litigation. There are a variety of forms that global warming litigation could take. Plaintiffs harmed by global warming could bring actions in U.S. federal courts against the American government. Alternatively, such plaintiffs could sue key American corporations whose conduct has a disproportionate impact on global warming inside U.S. or …

The Deeper Challenges Of Global Terrorism: A Democratizing Response, Andrew L. Strauss, Richard A. Falk

School of Law Faculty Publications

The audacious and gruesome terrorist attacks on the World Trade Center and the Pentagon, along with the military response, have been the defining political events of this new millennium. The most profound challenge directed at the international community, and to all of us, is to choose between two alternative visions. What we call the traditional statist response emphasizes 'national security' as the cornerstone of human security. Centralization of domestic authority, secrecy, militarism, nationalism, and an emphasis on unconditional citizen loyalty, to her or his state as the primary organizing feature of international politics are all attributes of this approach.

We …

Indian Gambling In Ohio: What Are The Odds?, Blake Watson

School of Law Faculty Publications

This article describes the options available to Indian groups and recognized Indian tribes to establish off-reservation gaming operations pursuant to the Indian Gaming Regulatory Act.

Exam Writing As Legal Writing: Teaching And Critiquing Law School Examination Discourse, Adam Todd

School of Law Faculty Publications

This article adds to the growing body of scholarship on legal writing and its role in the legal academy. It addresses an area of legal discourse that is of importance to law students, the legal academy and the bar admissions process, yet has been neglected in legal scholarship. The article is a call for legal writing faculty members and other legal writing specialists to become more involved in the process of teaching about and critiquing the discourse involved in traditional end-of-semester doctrinal law school exams. This article suggests how law school legal writing programs, by deliberately teaching about exam writing, …

Students’ Writing Backgrounds: A Survey, Susan Wawrose

School of Law Faculty Publications

We now know that many experienced lawyers think newly-minted attorneys “do not write well.”1 Law professors complain that students do not write well when they enter law school. Undergraduate professors say their students do not write well when they enter college. I suspect the complaint continues on down the ladder of K- 12 education. Are students learning to write in college, high school, and elementary school? To shed light on the question, I surveyed students in my legal writing class about their writing experience. I wanted to know what kind of writers I was teaching. Had they been taught fundamental …

Overcoming The Dysfunction Of The Bifurcated Global System: The Promise Of A Peoples Assembly, Andrew L. Strauss

School of Law Faculty Publications

Richard Falk and I have proposed that the time is ripe for global civil society to take the lead and initiate a popularly representative Global Peoples Assembly (GPA).1 The tremendous growth in the commitment to, and practice of, democracy in domestic settings2 juxtaposed against globalization's large-scale transfer of political decision making to international institutions3 has made the almost complete lack of democracy at the international level the most glaring anomaly of the global system today.

Because states are unlikely to initiate the democratization of the international order, the task of beginning the drive for the first GPA necessarily falls to …

'Can We Go Home Now?' Expediting Adoption And Termination Of Parental Rights Appeals In Ohio State Courts, Susan Wawrose

School of Law Faculty Publications

Two years ago, the Ohio Supreme Court amended its rules and those of Ohio's intermediate appellate courts in order to fast-track appeals of cases involving termination of parental rights ("TPR") and adoption of minor children. Three of Ohio's twelve appellate districts already had local rules to expedite or accelerate these types of appeals, but in some districts, the amended rules established procedures that were entirely new.

The major impetus behind the court's amendments to the rules was to move children out of foster care and into permanent adoptive homes more quickly. Further, by amending the rules of the intermediate appellate …

Justice For Perpetrators And Victims Of Apartheid Who Fall Outside The Scope Of The Truth And Reconciliation Commission’S Mandate, Christopher J. Roederer, Kevin Hopkins

School of Law Faculty Publications

The legislation that gave birth to the Truth and Reconciliation Commission provides for the possibility of amnesty to the perpetrators of certain crimes and delicts. It also provides for the possibility of reparations to the victims of apartheid who suffered as a result of their human rights being grossly violated. The problem with the legislation is that it is only competent to deal with matters falling within its ambit, but there are numerous issues that still need to be addressed which clearly fall outside of it. One might be tempted to say that such issues falling beyond the scope of …

Academic Support Programs: Effective Support Through A Systemic Approach, Adam Todd

School of Law Faculty Publications

Academic support programs in American law schools ("ASPs") are often implemented with the express purpose of promoting social, racial, and economic diversity in the legal profession, which has historically excluded these populations. This progressive purpose, however, may not ultimately be achieved unless academic support is fully integrated into the law school academy. This Article argues that an ASP needs to go beyond one-on-one counseling of students in academic difficulty.

Further, ASPs need to engage the faculty and administration of a law school in the academic support mission. This Article also suggests concrete steps that ASP professionals can follow to improve …

The Case For Utilizing The World Trade Organization As A Forum For Global Environmental Regulation, Andrew L. Strauss

School of Law Faculty Publications

In his article "Environmental Policy in the New World Economy," Alan Miller discusses the environmental implications of globalization. Recognizing that the flow of international private capital to developing countries is far more significant than international development assistance, he questions how we can use public policy to maximize the positive environmental effects of private investment. Miller suggests the need to find strategies that utilize market forces to benefit the environment.

This article heeds Alan Miller's call by suggesting new approaches to thinking about the potential for the World Trade Organization (WTO) to play a positive environmental role.

In this article, my …

Where America Ends And The International Order Begins: Interpreting The Jurisdictional Reach Of The U.S. Constitution In Light Of A Proposed Hague Convention On Jurisdiction And Satisfaction Of Judgments, Andrew L. Strauss

School of Law Faculty Publications

The recently concluded Hague Convention on Choice of Courts Agreements is the culmination of over a decade of negotiations. While the convention is very modest in what it attempts to accomplish, many observers see it as a first step toward achieving greater global uniformity of rules regarding jurisdiction and satisfactions of judgments. To the extent the United States Constitution governs the international ambit of United States jurisdiction in international cases, there is the potential for conflict between the Constitution and international treaty rules. A treaty found to be in conflict with the Constitution would likely be held invalid — at …

The Curious Case Of Disappearing Federal Jurisdiction Over Federal Enforcement Of Federal Law: A Vehicle For Reassessment Of The Tribal Exhaustion/Abstention Doctrine, Blake Watson

School of Law Faculty Publications

This article describes the tribal exhaustion/abstention doctrine set forth in National Farmers Union Ins. Companies v. Crow Tribe, 471 U.S. 845 (1985) and Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987).

Liberal Construction Of Cercla Under The Remedial Purpose Canon: Have The Lower Courts Taken A Good Thing Too Far?, Blake Watson

School of Law Faculty Publications

This article examines the use of the remedial purpose canon of statutory construction in connection with the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), otherwise known as the Superfund Act. The article also assesses scholarly criticisms of the remedial purpose canon.

Beyond National Law: The Neglected Role Of The International Law Of Personal Jurisdiction In Domestic Courts, Andrew L. Strauss

School of Law Faculty Publications

When one of the parties is foreign in civil personal jurisdiction cases, United States courts have assumed it appropriate to overlook international jurisdiction law and apply solely United States constitutional, statutory and common law doctrines related to jurisdiction. Courts in other countries likewise apply their own domestic doctrines of jurisdiction in international cases. Applying both positivist and normative methodologies, this article makes the theoretical case that the international law of personal jurisdiction should be applied in domestic courts.

A Global Paradigm Shattered: The Jurisdictional Nihilism Of The Supreme Court’S Abduction Decision In Alvarez-Machain, Andrew L. Strauss

School of Law Faculty Publications

In the United States v. Alvarez Machain, the United States Supreme Court held that the United States could exercise criminal jurisdiction over a Mexican doctor who was abducted by agents of the American government from his office in Mexico and transported to the United States. As the Court's first international law decision after the end of the cold war, this case set the stage for how it would approach the domestic application of international law in the post cold war era. Despite the importance of the case, the Supreme Court failed to articulate the conceptual understanding of the relationship between …

Mitigating The Effects Of Private Revitalization On Housing For The Poor, James Goeffrey Durham, Dean E. Sheldon Iii

School of Law Faculty Publications

This article addresses how to identify the benefits and costs of revitalization. It further discusses how to allocate the costs efficiently so that revitalizers will internalize expenses, thus enabling them to make efficient decisions about undertaking projects. Efficiency may not be society's ultimate goal, but efficiency in urban revitalization would promote society's goal to treat its members equitably."

This article first examines the costs and benefits of revitalization and outlines who bears the costs and who gains the benefits. This article then offers specific proposals for forcing revitalizers to internalize their costs. These proposals provide some definite conclusions about how …

Interstate Rendition And Illegal Return Of Fugitives, Herbert O. Reid

School of Law Faculty Publications

No abstract provided.