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The Qualified Immunity Paradox And The Sixth Circuit’S Moderwell Opinion: A Harbinger Of Better Things To Come?, Doron M. Kalir Apr 2021

The Qualified Immunity Paradox And The Sixth Circuit’S Moderwell Opinion: A Harbinger Of Better Things To Come?, Doron M. Kalir

Law Faculty Articles and Essays

This note discusses the requirement of "clearly-established law," which a plaintiff needs to show in order to overcome a qualified immunity defense. This requirement--in essence, asking a plaintiff to show that someone else in their shoes has already prevailed in similar circumstances--may lead to an infinite regression paradox. The Note discusses this paradox and the ways in which the Supreme Court, and now the Sixth Circuit, have begun to resolve it.


Darryl Robinson's Model For International Criminal Law: Deontic Principles Developed Through A Coherentist Approach, Milena Sterio Apr 2021

Darryl Robinson's Model For International Criminal Law: Deontic Principles Developed Through A Coherentist Approach, Milena Sterio

Law Faculty Articles and Essays

Darryl Robinson’s new book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, presents a compelling argument: that international criminal law would benefit from deontic reasoning. According to Robinson, this type of deontic reasoning “requires us to consider the limits of personal fault and punishability,” and is a “normative reasoning that focuses on our duties and obligations to others.” Moreover, Robinson argues in this book that coherentism is the best method for identifying and defining deontic principles. Robinson explains that coherentism is an approach where “[w]e use all of our critical reasoning tools to test past ...


Reforming The High-States Gamble Of Covert Government Seizures, Jonathan Witmer-Rich Jan 2021

Reforming The High-States Gamble Of Covert Government Seizures, Jonathan Witmer-Rich

Law Faculty Articles and Essays

In a covert government seizure, police secretly enter a home when no one is present and seize contraband, often staging the scene to look like a burglary. These covert seizures are authorized by delayed notice search warrants. This Article identifies two serious problems with this practice and proposes reforms.

The first problem is that a successful covert seizure will likely provoke violent retaliation against innocent third parties. If the target of the covert seizure--say a drug dealer--believes someone has stolen a valuable drug stash, the dealer will seek to kill or harm whomever they believe conducted the burglary. The statute ...


Change At The Speed Of Leadership, Lee Fisher Jan 2021

Change At The Speed Of Leadership, Lee Fisher

Law Faculty Articles and Essays

“The most dangerous leadership myth is that leaders are born—that there is a genetic factor to leadership. . . That’s nonsense; in fact, the opposite is true. Leaders are made rather than born.”

“Lawyers are in the anomalous position of serving as leaders but generally lacking leadership training and skills. Competency in lawyering skills often functions as a proxy for leadership skills, despite the evidence that leadership skills are distinct and may take years to develop. Our neglect of leadership skills is reaching crisis proportions because nearly half of all current law firm partners will retire within the next ten ...


Just Plain Dumb?: How Digital Contact Tracing Apps Could’Ve Worked Better (And Why They Never Got The Chance), Brian E. Ray Jan 2021

Just Plain Dumb?: How Digital Contact Tracing Apps Could’Ve Worked Better (And Why They Never Got The Chance), Brian E. Ray

Law Faculty Articles and Essays

This essay describes how the privacy debate that emerged over digital contact tracing and Google’s and Apple’s decisions to strictly limit apps permitted to use their platforms resulted in undercutting their potential usefulness as a tool to combat the pandemic while still failing to engender trust in these tools as intended.


Women As Judges At International Criminal Tribunals, Milena Sterio Oct 2020

Women As Judges At International Criminal Tribunals, Milena Sterio

Law Faculty Articles and Essays

This Article analyzes the presence of female judges within international criminal tribunals, starting with the Yugoslavia and Rwanda Tribunals in the 1990s. In particular, the Article discusses specific numbers of female judges at the Yugoslavia and Rwanda Tribunals, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the newly created Kosovo Specialist Chambers, and the International Criminal Court.

While the presence of women as prosecutors, defense attorneys, victim representatives, and other professionals at these tribunals is equally important, this Article focuses on the number of female judges, as such data ...


Equitable Defenses In Patent Law, Christa J. Laser Oct 2020

Equitable Defenses In Patent Law, Christa J. Laser

Law Faculty Articles and Essays

In patent law, “unenforceability” can have immense consequences. At least five equitable doctrines make up the defense of “unenforceability” as it was codified into the Patent Act in 1952: laches; estoppel; unclean hands; patent misuse; and according to some, inequitable conduct. Yet in the seventy years since incorporation of equitable defenses into the patent statute, the Supreme Court has not clarified their reach. Indeed, twice in the last four years, the Supreme Court avoided giving complete guidance on the crucial questions of whether, and when, such equitable defenses are available to bar damages in cases brought at law.

Several interpretive ...


Striving For The Mountaintop: The Elimination Of Health Disparities In A Time Of Retrenchment (1968-2018), Gwendolyn R. Majette Oct 2020

Striving For The Mountaintop: The Elimination Of Health Disparities In A Time Of Retrenchment (1968-2018), Gwendolyn R. Majette

Law Faculty Articles and Essays

Health disparities in the United States are real. People of color are the adverse beneficiaries of these facts-lower life expectancy, higher rates of morbidity and mortality, and poorer health outcomes in general. This Article analyzes the laws and policies that improve and create barriers to improving people of color's health since the death of Reverend Martin Luther King, Jr. in 1968. The Article builds upon my earlier scholarship and considers the effectiveness of the "PPACA Framework to Eliminate Health Disparities" since the Patient Protection and Affordable Care Act (PPACA) was enacted in 2010.

The Article also explores the impact ...


Cities And Citizens Seethe: A Case Study Of Local Efforts To Influence Natural Gas Pipeline Routing Decisions, Heidi Gorovitz Robertson Apr 2020

Cities And Citizens Seethe: A Case Study Of Local Efforts To Influence Natural Gas Pipeline Routing Decisions, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This Article explores the reasons local governments find difficulty influencing pipeline-routing decisions. For example, federal law controls interstate natural gas pipeline permitting, which is complicated and inaccessible. State law, particularly in Ohio, heavily favors utilities, in part by preempting local efforts to make local decisions regarding oil and gas development. Finally, the information gaps are enormous between what local governments need to influence pipeline-routing decisions and what is accessible.

This Article addresses barriers to local influence by discussing the efforts of citizens and local governments to influence the routing of NexusSpectra's natural gas transmission pipeline, which was recently constructed ...


Consentability, Autonomy, And Self-Actualization, Jonathan Witmer-Rich Apr 2020

Consentability, Autonomy, And Self-Actualization, Jonathan Witmer-Rich

Law Faculty Articles and Essays

This essay evaluates several competing principles underlying consent, such as self-interest, self-sovereignty, and self-actualization. Witmer-Rich argues that the nature of consent depends heavily on which of these underlying values consent is believed to serve and concludes that “self-actualization—the ongoing human project of creating and embodying coherent and meaningful values and choices—is the most fundamental good of autonomy and is the good that society should seek to further in the law of consent.”


Set The Controls For The Heart Of The Moon: Is Existing Law Sufficient To Enable Resource Extraction On The Moon?, Mark J. Sundahl, Jeffrey A. Murphy Jan 2020

Set The Controls For The Heart Of The Moon: Is Existing Law Sufficient To Enable Resource Extraction On The Moon?, Mark J. Sundahl, Jeffrey A. Murphy

Law Faculty Articles and Essays

This Article argues that despite the existence of some open questions regarding fine points in the law and the unlikelihood of a new treaty regulating lunar activity, investors (of whatever type, whether public or private) should not be deterred due to any concern about the state of the law. The current regulatory process to launch a vehicle and operate a payload may be “clunky” in places, but it is not unduly burdensome. While there is plenty of debate about regulatory reform, it is a debate about how to improve the existing system—not necessarily to fix it. In other words ...


Black Citizenship, Dehumanization, And The Fourteenth Amendment, Reginald Oh Jan 2020

Black Citizenship, Dehumanization, And The Fourteenth Amendment, Reginald Oh

Law Faculty Articles and Essays

The fight for full Black citizenship has been in large measure a fight against the systematic dehumanization of African Americans. Dehumanization is the process of treating people as less than human, as subhuman. Denying Blacks full and equal citizenship has gone hand in hand with denying their full humanity. To effectively promote equal citizenship for African Americans, therefore, requires an explicit commitment to ending their dehumanization.

In this Essay, Part I discusses the concept of dehumanization and its role in the infliction of harm on a dehumanized class of people. Part II discusses the concept of citizenship, and contend that ...


The International Criminal Court: Current Challenges And Prospect Of Future Success, Milena Sterio Jan 2020

The International Criminal Court: Current Challenges And Prospect Of Future Success, Milena Sterio

Law Faculty Articles and Essays

The ICC has served as an agent of impunity since its inception in 1998, and its fundamental role in the field of international criminal justice as a permanent accountability mechanism remains undisputed. The court is, however, facing significant challenges which may threaten its legitimacy. These challenges can be surmounted if the court is willing to take a hard look at its own procedures, prosecutorial practices, and judicial attitudes. The ICC's future may be bright if the court makes significant changes in the present.


Let She Who Has The Womb Speak: Regulating The Use Of Human Oocyte Cryopreservation To The Detriment Of Older Women, Browne C. Lewis Jan 2020

Let She Who Has The Womb Speak: Regulating The Use Of Human Oocyte Cryopreservation To The Detriment Of Older Women, Browne C. Lewis

Law Faculty Articles and Essays

This article is divided into three parts. Part I examines the arguments in favor of banning human oocyte cryopreservation. Part II explores the reasons some opponents of human oocyte cryopreservation might give to support restrictions on the use of frozen oocytes. Part III analyzes the possible ethical and legal challenges that may arise in the event that the government seeks to ban the use of frozen oocytes or restrict the use of frozen oocytes based solely on the age of the potential mother.


Dehumanization, Immigrants, And Equal Protection, Reginald Oh Oct 2019

Dehumanization, Immigrants, And Equal Protection, Reginald Oh

Law Faculty Articles and Essays

This article is divided into three parts. Part I explores the concept of dehumanization and its central role in the subordination of marginalized groups. Part II discusses the equal protection doctrine of suspect classes by analyzing key decisions by the Court and its reasoning for whether or not to consider a particular group as a suspect class. Part II also argues that the decision in Brown v. Board of Education regards racial segregation in public schools as a form of racial dehumanization and provides the doctrinal basis to consider dehumanization a central factor in determining suspect class status. Part III ...


Talking Foreign Policy: Untangling The Yemen Crisis, Milena Sterio, Michael P. Scharf, Paul R. Williams, James Johnson, Laura Graham Apr 2019

Talking Foreign Policy: Untangling The Yemen Crisis, Milena Sterio, Michael P. Scharf, Paul R. Williams, James Johnson, Laura Graham

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to talkingforeignpolicy@case.edu.


Optimizing The Classroom Experience By Collaborating With Colleagues, Karin Mika Apr 2019

Optimizing The Classroom Experience By Collaborating With Colleagues, Karin Mika

Law Faculty Articles and Essays

Collaborations with colleagues, whether those colleagues are legal professionals or one’s doctrinal colleagues, can provide an enhanced learning experience for both professor and student in the Legal Writing classroom. Through these collaborations, Legal Writing professors can provide more substantive knowledge on a subject matter than they may have been able to provide in an individual capacity during a classroom lecture. Moreover, multiple-source inputs to the learning experience provide various viewpoints with the potential to increase the knowledge absorbed. Finally, collaborations have the potential of showing students the “big picture” that law is not an experience isolated within each class ...


Business, Legal, And Policy Issues In Relation To Increased Private Space Activity, Mark J. Sundahl Mar 2019

Business, Legal, And Policy Issues In Relation To Increased Private Space Activity, Mark J. Sundahl

Law Faculty Articles and Essays

Throughout the history of human activity in outer space, the role of private companies has steadily grown, and, in some cases, companies have even replaced government agencies as the primary actors in space. As private space activity has grown and diversified, the laws and regulations that govern private actors have been forced to evolve in reaction to the new realities of the industry. On the international level, the treaties concluded in the 1960s and 1970s continue to be in force today. However, these treaties only govern state activity in space. The rules regulating private industry are necessarily domestic in nature ...


Familiar Battles Yield Next Generation Victories, Karin Mika Mar 2019

Familiar Battles Yield Next Generation Victories, Karin Mika

Law Faculty Articles and Essays

No abstract provided.


Foreword: Behind The Classroom: An Examination Of Law Schools In The 21st Century, Brandon Stump Jan 2019

Foreword: Behind The Classroom: An Examination Of Law Schools In The 21st Century, Brandon Stump

Law Faculty Articles and Essays

No abstract provided.


Allowing Autistic Academics The Freedom To Be Autistic: The Ada And A Neurodiverse Future In Pennsylvania And Beyond, Brandon Stump Jan 2019

Allowing Autistic Academics The Freedom To Be Autistic: The Ada And A Neurodiverse Future In Pennsylvania And Beyond, Brandon Stump

Law Faculty Articles and Essays

This Article focuses on those Autistics who have the ability, in terms of intellect credential, and measurable skill, to enter the workplace. In particular, this Article addresses Autistics who are academics and teach at the collegiate level, specifically in the American legal classroom. I have chosen a narrow subset of a broad community to make a targeted argument for employment protection which can help expand the law for the entire Autistic community. While we are different than neurotypically developed persons, "[m]any with [Autism Spectrum Disorder (ASD)] have a high attention to detail and the ability to sustain intense concentration ...


The Trump Administration And The International Criminal Court: A Misguided New Policy, Milena Sterio Jan 2019

The Trump Administration And The International Criminal Court: A Misguided New Policy, Milena Sterio

Law Faculty Articles and Essays

In a recent speech, National Security Advisor John Bolton delivered remarks on "Protecting American Constitutionalism and Sovereignty from International Threats." In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court). According to Bolton, the ICC "has been ineffective, unaccountable, and indeed, outright dangerous." While Bolton and others in the Trump Administration are at liberty to craft new policies, it is important that such policies be based on accurate facts and an accurate understanding of the law.

This Article highlights factual errors from Bolton's remarks and criticizes some of his arguments as misguided ...


Talking Foreign Policy: North Korea Summit, Milena Sterio, Shannon French, Tim Webster, Paul R. Williams, Michael P. Scharf Jan 2019

Talking Foreign Policy: North Korea Summit, Milena Sterio, Shannon French, Tim Webster, Paul R. Williams, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest ...


Local Regulation Of Charitable Solicitation, Joseph Mead Jan 2019

Local Regulation Of Charitable Solicitation, Joseph Mead

Law Faculty Articles and Essays

Most discussions of the policy context for nonprofits in the United States focus on federal or state restrictions. Fundraising charities, however, must comply not only with myriad state requirements but an uncertain number of local requirements as well. Based on a survey of the largest cities in the United States, I find that all of these cities have some restrictions on charitable solicitation. Several of the cities also impose extensive registration requirements and other restrictions. These findings highlight the need for nonprofits to be aware of local regulation of their activities.


Platforms, American Express, And The Problem Of Complexity In Antitrust, Chris Sagers Jan 2019

Platforms, American Express, And The Problem Of Complexity In Antitrust, Chris Sagers

Law Faculty Articles and Essays

Everything about Ohio v. American Express was wrong and the adoption of “two-sided platform” reasoning into American antitrust law might be one of its worst, most regrettable wrong turns in decades. That is not because the original theoretical model of two-sided interaction has anything wrong with it at all. It is rather that nothing could be gained by incorporating it that could be worth the result in the American Express case itself, or the difficulty that has likely been invited into antitrust litigation. The consequences are hard to predict, but they may be severely limiting to our already moribund antitrust ...


Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir Jan 2019

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex ...


The Faith And Morals Of Justice Antonin Scalia, David Forte Jan 2019

The Faith And Morals Of Justice Antonin Scalia, David Forte

Law Faculty Articles and Essays

It is because of Justice Scalia's suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia's affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it.


Talking Foreign Policy: Responding To Rogue States, Milena Sterio, Todd F. Buchwald, James Johnson, Michael P. Scharf, Paul R. Williams Jan 2019

Talking Foreign Policy: Responding To Rogue States, Milena Sterio, Todd F. Buchwald, James Johnson, Michael P. Scharf, Paul R. Williams

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest ...


The Scope Of Ipr Estoppel: A Statutory, Historical, And Normative Analysis, Christa J. Laser Nov 2018

The Scope Of Ipr Estoppel: A Statutory, Historical, And Normative Analysis, Christa J. Laser

Law Faculty Articles and Essays

When Congress implemented inter partes review (IPR) and other patent post-grant proceedings through the passage of the America Invents Act (AIA) in 2011, it provided that petitioners would be estopped in later proceedings from raising grounds for invalidity that they "raised or reasonably could have raised during that inter partes review." 35 U.S.C. § 315( e )(2). However, substantial uncertainty in courts' interpretation of this provision causes an enormous impact on an accused patent infringer's decision of whether and on what grounds to petition for review. One reading of the statutory estoppel provision suggests that "during that inter ...


Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling Or Unitization, And The Role Of The Dissenting Landowner, Heidi Gorovitz Robertson Oct 2018

Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling Or Unitization, And The Role Of The Dissenting Landowner, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This article addresses the legal circumstances arising when a state agency authorizes oil and gas production operations beneath a landowner’s land against that landowner’s wishes. One might assume that, if a landowner wants to preserve his or her land from oil and gas development, the landowner could simply refuse to allow drilling to occur beneath the land. However, neighbors may want to develop the oil and gas resources beneath their own land. To satisfy the neighbors’ wishes, an oil and gas producer must assemble mineral production rights on or beneath enough contiguous land to satisfy state spacing and ...