Law Commons^™

Babes With Arms: International Law And Child Soldiers, Timothy Webster

Faculty Publications

This article examines advances in preventing children from participating in armed conflict. It references international human rights treaties, UN Security Council resolutions and jurisprudence from international courts to chart the course by which recruiting child soldiers became an international crime. At the same time, it calls on UN bodies – and the states that comprise them – to implement some of the many resolutions and veiled threats leveled at various groups and militias that use child soldiers.

Bilateral Regionalism: Paradoxes Of East Asian Integration, Timothy Webster

Faculty Publications

Like many other countries, China and Japan have recently signed a spate of Free Trade Agreements with countries in the Asia Pacific. This paper analyzes both countries’ styles of integration. While China favors multidisciplinary engagement (politics, security, economics), Japan is mainly interested in deepening economic integration with the countries in which it has already established transnational production lines. After analyzing individual FTAs signed by China and Japan, the paper ends by predicting that China’s multifaceted approach will promote greater integration in the Asia Pacific, and a more robust profile for China in regional affairs.

The Price Of Wisdom Is Above Rubies - A Tribute To Ronald J. Coffey Case Western Reserve School Of Law 1966-2007 (On His Retirement), Juliet P. Kostritsky

Faculty Publications

Tribute to Ronald J. Coffey Case Western Reserve School of Law 1966-2007.

Warming Up To Climate Change Litigation, Jonathan H. Adler

Faculty Publications

The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act ("CAA" or "the Act") provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to …

Brady And Jailhouse Snitches, Paul C. Giannelli

Faculty Publications

No abstract provided.

"Medicover": A Proposal For National Health Insurance, Maxwell J. Mehlman

Faculty Publications

This Article provides a description of the events leading up to the workshop, the discussion that took place, and the proposal that emerged. The proposal is intended to be a discussion document rather than a final product. It needs greater detail, a clearer sense of its costs and financing mechanisms, and input from stakeholders. Nevertheless, the workshop participants believe that Medicover may be a viable option for helping to solve the current health care crisis.

In Sickness, Health And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski

Faculty Publications

The electronic processing of health information provides considerable benefits to patients and health care providers at the same time that it creates serious risks to the confidentiality, integrity, and availability of the data. The Internet provides a conduit for rapid and uncontrolled dispersion and trafficking of illicitly-obtained private health information, with far-reaching consequences to the unsuspecting victims. In order to address such threats to electronic private health information, the U.S. Department of Health and Human Services enacted the HIPAA Security Rule, which thus far has received little attention in the legal literature. This article presents a critique of the Security …

Bite Mark Analysis, Paul C. Giannelli

Faculty Publications

Courts have admitted bite mark comparison evidence in homicide, rape, and child abuse cases. By the 1980s, the technique had gained widespread judicial acceptance. Hundreds of cases have admitted this type of evidence, and no reported case has rejected it. Moreover, some courts speak of bite mark comparison as a "science." Indeed, its acceptance is so well-established that several courts have taken judicial notice of its reliability, implying that the validity of the technique is not subject to reasonable dispute.

Yet, the scientific foundations for bite mark comparisons has never been demonstrated. Such basic issues as the uniqueness of the …

Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli

Faculty Publications

No abstract provided.

Massachusetts V. Epa Heats Up Climate Policy No Less Than Administrative Law: A Comment On Professors Watts And Wildermuth, Jonathan H. Adler

Faculty Publications

In their essay Breaking New Ground on Issues Other than Global Warming, Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful preliminary analysis of the Supreme Court's handiwork in Massachusetts v. EPA. They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing. The Court's approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but perhaps less ground-breaking than they suggest. In the context of climate change policy their assessment of the Court's decision is too modest, however, for Massachusetts virtually ensures federal regulation …

F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku

Faculty Publications

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …

Tribute To Professor Robert Lawry, Kevin C. Mcmunigal

Faculty Publications

Tribute to Professor Robert Lawry.

Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal

Faculty Publications

Commentators who have examined the DNA exonerations have noted the disturbing role that prosecutors have played in these wrongful convictions. Another significant contributor to these miscarriages of justice is the misuse of expert testimony, a third of the cases according to some sources. This Article examines the intersection of these two factors - the prosecutor's role in using and presenting expert testimony.

Prosecutorial misconduct may occur during most stages of a trial, beginning with the selection of witnesses, including the improper "shopping" for experts. Additional abuses occur when prosecutors fail to abide by rules governing the pretrial disclosure of scientific …

On Terrorism And Whistleblowing, Michael P. Scharf, Colin T. Mclaughlin

Faculty Publications

At a Bio-Terrorism Conference at Case Western Reserve University School of Law on March 31, 2006, the government participants were asked what they would do if a superior instructed them not to disclose information to the public about the likely grave health affects of an ongoing bio-terrorist attack. In response, they indicated that they would be reluctant to become a "whistleblower." This is not surprising since, despite the federal and state laws that purport to facilitate such whistleblowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they …

Guilty Pleas, Brady Disclosure, And Wrongful Convictions, Kevin C. Mcmunigal

Faculty Publications

The purpose of this article is to explore a connection between prosecutorial failures to disclose Brady material and wrongful convictions in the context of guilty pleas, the primary procedural vehicle our criminal justice system uses for securing criminal convictions.

Introduction: Capitalizing On The Success Of Entrepreneurship: Ipos, Private Sales, Tax Aspects, Residual Interest Of Entrepreneurs After Sales Of Ipos, Richard K. Gordon

Faculty Publications

Panel discussion on "Capitalizing on the Success of Entrepreneurship: IPOS, Private Sales, Tax Aspects, Residual Interest of Entrepreneurs after Sales of IPOS" from the "The Canada-United States Law Institute Conference on Comparative Legal Aspects of Entrepreneurship in Canada and the United States" - Cleveland, Ohio April 13-14, 2007.

Plain Meaning Vs. Broad Interpretation: How The Risk Of Opportunism Defeats A Unitary Default Rule For Interpretation, Juliet P. Kostritsky

Faculty Publications

The problem of contract interpretation presents courts with significant questions about the nature and methodology of judicial intervention into privately arranged affairs. The court often assumes an active role in interpreting the words of a written contract in part because words have more than one meaning or because a contract is incomplete. When a court chooses amongst variable meanings, or interprets contracts to craft limitations on parties' behavior when express limits do not exist, its choice must be then justified using a framework explored in this essay.

Traditionally, commentators have advocated one of two general approaches to supply the methodology …

Forward: Lessons From The Saddam Trial, Michael P. Scharf

Faculty Publications

Forward to the conference on "Lessons from the Daddam Trial."

Chaos In The Courtroom, Controlling Disruptive Defendants And Contumacious Counsel In War Crimes Trials, Michael P. Scharf

Faculty Publications

During the eight month-long Dujail trial (October 2005-August 2006), Saddam Hussein, his seven co-defendants, and their dozen lawyers regularly disparaged the judges, interrupted witness testimony with outbursts, turned cross examination into political diatribes, and staged frequent walk-outs and boycotts. Drawn from the author's September 2006 lecture to the staff of the Office of the Prosecutor of the International Criminal Court in The Hague, this article examines some of history's previous messy trials and the strategies judges have employed with varying degrees of success to respond to disruptive conduct by trial participants. It then describes the various tactics employed by the …

Prosecutors And Corrupt Science, Kevin C. Mcmunigal

Faculty Publications

No abstract provided.

Promoting Diverse Cultural Expression: Lessons From The U.S. Copyright Wars, Raymond Shih Ray Ku

Faculty Publications

In 2007, the United Nations adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expression (CCD) with the goal of creating an environment that encourages individuals and social groups to create, distribute, and have access to diverse cultural expression from their own cultural and from cultures around the world. With regard to domestic and international efforts to implement the CCD and reconcile its goals with other international norms, the author argues that valuable lessons can be learned from current trends and issues in U.S. copyright law. Specifically, the author argues that the current debate over copyright's …

Ron Coffey: The Thinker's Thinker, Peter M. Gerhart

Faculty Publications

Tribute to Ron Coffey

The Tragedy Of Trips, Peter M. Gerhart

Faculty Publications

This Article argues that sound intellectual property policy requires not only that the policymaker establish an appropriate incentive for invention but also that the policymaker determine how the cost of that incentive should be distributed across various classes of consumers. It is the distributive dimension of intellectual property policy that makes existing international institutions such an unsound mechanism for determining global rules for intellectual policy--the policymakers are simply not able to make the appropriate kinds of decisions. I suggest some ways in which institutional structures can be modified to achieve a better balance.

George A. Leet Business Law Symposium: Lawyers In The Crosshairs: The New Legal And Ethical Duties Of Corporate Attorneys Introduction, George W. Dent

Faculty Publications

Introducation to George A. Leet Business Law Symposium: Lawyers in the Crosshairs: The New Leagal and Ethical Duties of Corporate Attorneys, Cleveland, Ohio.

Nafta's Double Standard Of Review, Juscelino F. Colares

Faculty Publications

Chapter 19 of the North American Free Trade Agreement (NAFTA) replaced court review of U.S. antidumping and countervailing duties with binding review by special binational panels of trade experts. It requires these panels to apply the same standard of review that U.S. courts use in trade remedy cases. Despite the centrality of this requirement to the Chapter 19 panel system, these panels have not adhered to this mandate. Chapter 19 panels overturn U.S. agency rulings much more often than the courts. In fact, they apply two different standards of review: exacting scrutiny where foreign producers and governments appeal, and near-absolute …

City Government And Predatory Lending, Jonathan L. Entin, Shadya Y. Yazback

Faculty Publications

Predatory lending is heavily concentrated in low- and moderate-income neighborhoods and disproportionately affects minorities and the elderly. The consequences of predatory lending are devastating not only to the consumers who fall prey to unscrupulous lenders' tactics, but to the community as a whole. For these reasons, many cities have tried to regulate or prohibit the practice. These efforts face formidable legal obstacles, however. This article examines the problems that cities face in suing as parens patriae on behalf of their residents, the strong possibility that even home rule municipalities will find their efforts preempted by state law, and the growing …

Rethinking Patent Law’S Uniformity Principle, Craig Allen Nard, John F. Duffy

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with …