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Case Western Reserve University School of Law

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Full-Text Articles in Law

Dual Fiduciaries: Unicorns, Corporate Law And The New Frontier, Anat Alon-Beck Jan 2023

Dual Fiduciaries: Unicorns, Corporate Law And The New Frontier, Anat Alon-Beck

Faculty Publications

Legal and regulatory structures influence the shift in equities in the United States from public markets to private markets, entrepreneurial opportunities and new firm formation. There is a rise in the number of “unicorn” firms, which are privately held venture-capital backed startups that are valued at $1 billion or more. The number of unicorns in the United States and overseas has grown exponentially over the last few years. This chapter discusses the rise of the unicorns and with it the increasing importance of corporate governance and fiduciary duties. There are new vertical and horizontal conflicts among common and preferred shareholders ...


Power Shift: The Return Of The Uniting For Peace Resolution, Michael P. Scharf Jan 2023

Power Shift: The Return Of The Uniting For Peace Resolution, Michael P. Scharf

Faculty Publications

In 2022, the United States dusted off the 1950 Uniting for Peace Resolution in order to obtain General Assembly condemnation of the Russian invasion of Ukraine. This was the first time in three decades that the Security Council and General Assembly had utilized the Uniting for Peace mechanism – a process designed to end-run a Security Council veto. Together with the General Assembly’s creation of the international investigative mechanism for Syria in 2016 over Russia’s objection, the use of the Uniting for Peace process to condemn Russia’s aggression represented a shift in power away from the Security Council ...


Cancel Culture Attacks On Books And Authors, Joseph A. Custer Jan 2023

Cancel Culture Attacks On Books And Authors, Joseph A. Custer

Faculty Publications

Some people today view free speech as a threat to emotional safety and well-being. Cancel culture attempts to silence authors who express “unapproved” opinions by removing access to their works, publicly shaming them, and making attempts to destroy their livelihood. Cancel culture has been increasing, particularly on social media.

In this paper, the author argues that cancel culture is the antithesis of freedom of expression. He explores cancel culture through the theoretical lens of John Stuart Mill and a more contemporary advocate of free expression, Jonathan Rauch. The author discusses the controversy associated with Dr. Seuss Enterprise's decision to ...


Vulnerable Populations And Vaccine Injury Compensation: The Need For Legal Reform, Katharine A. Van Tassel, Sharona Hoffman Jan 2022

Vulnerable Populations And Vaccine Injury Compensation: The Need For Legal Reform, Katharine A. Van Tassel, Sharona Hoffman

Faculty Publications

This chapter argues that the potential for vaccine-related harms raises acute concerns for vulnerable populations. These harms have a disparate impact on low-income people, who are disproportionately non-White, and who have limited financial resources to obtain medical care, weather job losses, and pursue injury compensation. When a vaccine is given as a countermeasure during a declared public health emergency (PHE), the problem is acute because of the limited availability of injury compensation.


Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman Jan 2022

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause ...


Cognitive Decline And The Workplace, Sharona Hoffman Jan 2022

Cognitive Decline And The Workplace, Sharona Hoffman

Faculty Publications

Cognitive decline will increasingly become a workplace concern because of three intersecting trends. First, the American population is aging. In 2019, 16.5 percent of the population, or fifty-four million people, were age 65 and over, and the number is expected to increase to seventy-eight million by 2025. Dementia is not uncommon among older adults, and by the age of eighty-five, between twenty-five and fifty percent of individuals suffer from this condition. Second, individuals are postponing retirement and prolonging their working lives. For example, about a quarter of physicians are over sixty-five, as are fifteen percent of attorneys. The average ...


The Appellate Judge As The Thirteenth Juror: Combating Implicit Bias In Criminal Convictions, Andrew S. Pollis Jan 2022

The Appellate Judge As The Thirteenth Juror: Combating Implicit Bias In Criminal Convictions, Andrew S. Pollis

Faculty Publications

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias.

Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency ...


Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman Jan 2022

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause ...


West Virginia V. Epa: Some Answers About Major Questions, Jonathan Adler Jan 2022

West Virginia V. Epa: Some Answers About Major Questions, Jonathan Adler

Faculty Publications

n West Virginia v. Environmental Protection Agency (WV v. EPA) the Supreme Court rejected an expansive reading of Section 7411 of the Clean Air Act. Expressly invoking the “major questions doctrine” for the first time in a majority opinion, the Court concluded Section 7411 of does not allow the EPA to require generation shifting to reduce greenhouse emissions. This decision rested on the longstanding and fundamental constitutional principle that agencies only have that regulatory authority Congress delegated to them. The Court further bolstered the argument that delegations of broad regulatory authority should not be lightly presumed, but also left substantial ...


Uprooting Roe, B. Jessie Hill, Mae Kuykendall Jan 2022

Uprooting Roe, B. Jessie Hill, Mae Kuykendall

Faculty Publications

The U.S. Supreme Court is likely poised to overturn Roe v. Wade in a matter of months. Yet, the roots of Roe run both wide and deep, and to uproot Roe would be to uproot the Constitution’s promise of gender equality in a radical way. Just as the Supreme Court’s jurisprudence of reproductive liberty freed people with reproductive capacity from having their destinies and status tied to their biology, an uprooting of Roe and its companion principles will restore the iron rules of gender difference and return women to their common-law status as lacking self-ownership and equal ...


Bargaining Inequality: Employee Golden Handcuffs And Asymmetric Information, Anat Alon-Beck Jan 2022

Bargaining Inequality: Employee Golden Handcuffs And Asymmetric Information, Anat Alon-Beck

Faculty Publications

Inaccurate unicorn firm valuation is a well-documented problem in the finance literature. Employees of these large, privately held companies do not have access to fair market valuation or financial statements and, in many cases, are denied access to such reports, even when requested. Unicorn employees are granted equity as a substantial part of their compensation, however due to the inferior position of employees in comparison to the start-up founders and other investors, information shedding light on the value of their equity grants has been withheld, as apparent in recent practices.

Start-up founders, investors, and their lawyers have systematically abused equity ...


Mythical Unicorns And How To Find Them: The Disclosure Revolution, Anat Alon-Beck, John Livingstone Jan 2022

Mythical Unicorns And How To Find Them: The Disclosure Revolution, Anat Alon-Beck, John Livingstone

Faculty Publications

Our federal and state securities laws are centered around two vital requirements for economic growth: capital formation and investor protection. Section 12(g) sits in the middle of these two concepts by attempting to ensure the latter without jeopardizing the former. However, since the passage of the Jumpstart Our Business Startups (“JOBS”) Act in 2012, exempt capital formation in the unregulated private market has increased dramatically. Companies raise nearly limitless capital from a wide range of sources while remaining outside of the public reporting regime. The overall shift has led to worse corporate governance outcomes, a decline in IPO volume ...


The Rise Of Police Unions On The Back Of The Black Freedom Movement, Ayesha B. Hardaway Jan 2022

The Rise Of Police Unions On The Back Of The Black Freedom Movement, Ayesha B. Hardaway

Faculty Publications

Police unions have garnered the attention of the media and some scholars in recent years. That attention has often focused on exploring the seemingly inexplicable power of police unions to shield problem officers from accountability as a matter of routine. This paper aims to explain that police union power did not surreptitiously arrive on the doorsteps of American cities. Instead, collective bargaining rights for law enforcement began to gain firm footing during the 1960s when the majority of white Americans were firmly committed to the preservations of their place in the nation’s racial hierarchy as it related to housing ...


Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler Jan 2022

Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler

Faculty Publications

New York City and other municipalities have filed state-law-based nuisance suits against fossil fuel companies seeking compensatory damages for the consequences of climate change. Previous nuisance claims, filed under federal common law, were held to be displaced by federal environmental statutes. Defendants have argued that state-law-based claims should likewise be preempted. Yet while the enactment of federal regulatory statutes displaces federal common law actions for interstate pollution, such enactments do not necessarily preempt state common law actions, even where pollution crosses state boundaries, as it is more difficult to preempt state common law than it is to displace federal common ...


A Duty To Diversify, Anat Alon-Beck, Darren Rosenblum, Michal Agmon-Gonnen Jan 2022

A Duty To Diversify, Anat Alon-Beck, Darren Rosenblum, Michal Agmon-Gonnen

Faculty Publications

Fiduciary duties reflect the central role of leaders in corporate governance. Those with the most responsibility benefit the most from corporate success, but also bear commensurate fiduciary responsibilities. Equality, diversity, and inclusion may seem an odd fit among other fiduciary duties. However, fiduciary duties are where governance imposes the burden of “doing the right thing.” Fiduciary duties involve normatively good behavior that proves essential to ensuring responsible decision-making and achieving positive outcomes for firms.

Corporate law allows, encourages and perhaps, today, even mandates, corporate leaders to do the right thing. Not only does it seem appropriate to ask corporate leaders ...


Due Process, Delegation, And Private Veto Power, B. Jessie Hill Jan 2022

Due Process, Delegation, And Private Veto Power, B. Jessie Hill

Faculty Publications

Nondelegation doctrine is enjoying a scholarly revival. Some commentators have read the U.S. Supreme Court’s 2019 decision in Gundy v. United States to portend new limitations on Congress’s ability to give away its authority to the executive branch. A recent decision involving Amtrak’s entitlement to exercise regulatory authority raised similar questions about delegation to private entities. Together, these cases may suggest imminent new constraints on the administrative state, generating urgent reconsideration of the purpose and application of the nondelegation doctrine.

This Article is focused on one particular line of nondelegation cases that has received less attention ...


Just War Traditions And Revisions, Joseph Chapa Jul 2021

Just War Traditions And Revisions, Joseph Chapa

The International Journal of Ethical Leadership Special Volumes

No abstract provided.


Empathy And Jus In Bello, Kevin Cutright Jul 2021

Empathy And Jus In Bello, Kevin Cutright

The International Journal of Ethical Leadership Special Volumes

No abstract provided.


Inamori International Thesis Prize In Military Ethics 2019 | 2020 - Front Matter And Message From The Editors, Shannon E. French, Beth Trecasa Jul 2021

Inamori International Thesis Prize In Military Ethics 2019 | 2020 - Front Matter And Message From The Editors, Shannon E. French, Beth Trecasa

The International Journal of Ethical Leadership Special Volumes

The Inamori International Center for Ethics and Excellence awards an annual prize for the best thesis in military ethics to promote active involvement in the study and application of military ethics, including: Just War Theory; the Conduct of War; the Law of Armed Conflict (LOAC); International Humanitarian Law (IHL); and other related fields that include the study of human rights issues in the context of armed conflict.

In an effort to foster global discussion of pressing issues in military ethics and improve the accessibility of the field in languages other than English, the Inamori Center publishes the winning theses, in ...


Arguments For Banning Autonomous Weapon Systems: A Critique, Hunter Cantrell Jul 2021

Arguments For Banning Autonomous Weapon Systems: A Critique, Hunter Cantrell

The International Journal of Ethical Leadership Special Volumes

No abstract provided.


The Geography Of Abortion Rights, B. Jessie Hill Jan 2021

The Geography Of Abortion Rights, B. Jessie Hill

Faculty Publications

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion ...


The Legal And Administrative Risks Of Climate Regulation, Jonathan Adler Jan 2021

The Legal And Administrative Risks Of Climate Regulation, Jonathan Adler

Faculty Publications

Dramatic and rapid reductions in greenhouse gas emissions are necessary to stabilize atmospheric concentrations of greenhouse gases (GHGs) at acceptable levels. Prioritizing federal environmental regulation as the primary means of achieving these goals may be a strategic mistake. Regulatory mandates, particularly if based upon existing statutory authority, will be vulnerable to legal attack, obstruction, and delay. Climate legislation can reduce the legal risks and accelerate the rate of policy implementation, but only on the margin. Adopting regulatory controls, sector-by-sector, technology-by-technology will be immensely resource intensive for the EPA and other federal agencies. Even with authorizing legislation, federal regulatory strategies may ...


A Paradigm Shift In Comparative Institutional Governance: The Role Of Contract In Business Relationships And Cost/Benefit Analysis, Juliet P. Kostritsky Jan 2021

A Paradigm Shift In Comparative Institutional Governance: The Role Of Contract In Business Relationships And Cost/Benefit Analysis, Juliet P. Kostritsky

Faculty Publications

Stewart Macaulay’s research on the ways that Wisconsin manufacturers transact debunked the centrality of contract law by revealing a disinclination to consult contract documents or invoke legal sanctions. This research revolutionized contracts scholarship, highlighting that a contract, instead of being viewed as an inevitable necessity of exchange, should be viewed as one of many institutions that might be available to parties as a solution to problems and a method for facilitating exchange. Macaulay’s research further revealed that the cost of legal sanctions, the importance of maintaining business relationships, and the desire for informal solutions actually push parties to ...


Creating Space For Community Representation In Police Reform, Ayesha Bell Hardaway Jan 2021

Creating Space For Community Representation In Police Reform, Ayesha Bell Hardaway

Faculty Publications

Input from affected communities is an essential component of the reform process aimed at remedying unconstitutional police practices. Yet, no court in DOJ-initiated police reform consent decree cases has ever granted a community organization’s motion to intervene as a matter of right. Judicial opinions in those cases have largely truncated the Federal Civil Rule 24 analysis when evaluating the interests of impacted communities. Thus, the most success achieved by a small few has been permissive intervention or amici status. The models used by the Department of Justice to elicit the community perspective have largely been frustrating and have failed ...


Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman Jan 2021

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause ...


Political Climate And Catastrophes: The Effects Of Notorious Events On Public Library Collections, Both Then And Now, Joseph A. Custer Jan 2021

Political Climate And Catastrophes: The Effects Of Notorious Events On Public Library Collections, Both Then And Now, Joseph A. Custer

Faculty Publications

This paper explores four different cases in the early 1950s of “Red Scare” tactics that influenced the freedoms that patrons using public libraries have enjoyed. The paper will also examine, at various points, the censorship parallels in the early 1950s to the contemporary political climate and the fallout of the Great Depression to the current catastrophe, COVID-19. The paper reviews the fallout from the Great Depression and how the world’s depression helped catapult Adolph Hitler of Germany to power. Hitler severely restricted or eliminated freedoms of expression, and the Trump administration’s actions reflect some of those same restrictions.


Untangling Attorney Retainers From Creditor Claims, Cassandra Burke Robertson, Jesse Wynn Jan 2021

Untangling Attorney Retainers From Creditor Claims, Cassandra Burke Robertson, Jesse Wynn

Faculty Publications

Clients will often use a retainer to secure an attorney’s representation. But clients in economic distress may have creditors that are eager to access the client’s funds in the attorney’s hands. Attorneys, clients, courts, and regulators have struggled to understand who has the best claim to such retainer funds. In this Article, we attempt to untangle the most common areas of confusion. We conclude that Article 9 of the Uniform Commercial Code (UCC) offers strong protection for an attorney’s interest in client retainers through security interests, even though some courts have misapplied the UCC in this ...


Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku Jan 2021

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Faculty Publications

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as ...


Domestic Violence By Proxy: A Framework For Considering A Child’S Return Under The 1980 Hague Convention On The Civil Aspects Of International Child Abduction’S Article 13(B) Grave Risk Of Harm Cases Post Monasky, Andrew Zashin Jan 2021

Domestic Violence By Proxy: A Framework For Considering A Child’S Return Under The 1980 Hague Convention On The Civil Aspects Of International Child Abduction’S Article 13(B) Grave Risk Of Harm Cases Post Monasky, Andrew Zashin

Faculty Publications

This article offers a new approach for analyzing the 13(b) grave risk of harm defense, specifically as it relates to victims of domestic violence and their children, that is both practical and clear, and rooted in principles that are grounded in American jurisprudence that will result in more consistent rulings. Part I of this article provides background to the text of the Hague Convention, including the purposes of the text, the systematic return of a child to his or her habitual residence, the Article 13(b) grave risk of harm exception, and the role of undertakings. In Part II ...


Our Federalism On Drugs, Jonathan Adler Jan 2020

Our Federalism On Drugs, Jonathan Adler

Faculty Publications

Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the ...