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Full-Text Articles in Law

When Trade Secrecy Goes Too Far: Public Health And Safety Should Trump Corporate Profits, Julie Zink Jul 2018

When Trade Secrecy Goes Too Far: Public Health And Safety Should Trump Corporate Profits, Julie Zink

School of Law Faculty Publications

This Article addresses the historical and ongoing use of trade secrets to withhold critical information from the public. Through its text and footnotes, the Article discusses the positives and negatives of trade secret protection; addresses historical and current examples of trade secret abuse; analyzes the inadequate solutions that have been tried and proposed; and, ultimately, recommends changing trade secret law by incorporating the precautionary principle into the definition of a trade secret to ensure that protection will no longer be available for information that endangers public health. This Article is both timely and necessary, as the public is continually bombarded ...


The Assessment Mandates In The Aba Accreditation Standards And Their Impact On Individual Academic Freedom Rights, Victoria L. Vanzandt Jan 2018

The Assessment Mandates In The Aba Accreditation Standards And Their Impact On Individual Academic Freedom Rights, Victoria L. Vanzandt

School of Law Faculty Publications

No abstract provided.


A Historical Reassessment Of Congress's "Power To Dispose Of" The Public Lands, Jeffrey M. Schmitt Jan 2018

A Historical Reassessment Of Congress's "Power To Dispose Of" The Public Lands, Jeffrey M. Schmitt

School of Law Faculty Publications

The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause to justify permanent federal land ownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated ...


Remnants Of Apartheid Common Law Justice: The Primacy Of The Spirit, Purport And Objects Of The Bills Of Rights For Developing The Common Law And Bringing Horizontal Rights To Fruition, Christopher J. Roederer Apr 2017

Remnants Of Apartheid Common Law Justice: The Primacy Of The Spirit, Purport And Objects Of The Bills Of Rights For Developing The Common Law And Bringing Horizontal Rights To Fruition, Christopher J. Roederer

School of Law Faculty Publications

The Constitutional Court in Carmichele was correct to hold that ‘[where] the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.’ Professor Anton Fagan’s argument that this is false is flawed because he misquotes, misrepresents and misunderstands the Court’s argument. Further, Fagan’s argument that the spirit, purport and objects of the Bill of Rights is merely a secondary reason for developing the common law that can be trumped by the individual moral views of judges, is also flawed. It is ...


Remedies For Regulatory Takings (Constructive Expropriations), Deprivations, Expropriations Or Custodianship In South Africa And The U.S., Christopher J. Roederer Jan 2017

Remedies For Regulatory Takings (Constructive Expropriations), Deprivations, Expropriations Or Custodianship In South Africa And The U.S., Christopher J. Roederer

School of Law Faculty Publications

Oliver Wendell Holmes, writing for the Court in Pennsylvania Coal Co. v. Mahon (1922), started the regulatory takings tradition in the U.S. with his famous line that “if regulation goes too far it will be recognized as a taking” deserving of just compensation. As this paper will show, how far is too far depends on where you are. Under the Fifth Amendment to the U.S. Constitution, regulations do not need to go as far as they once did, and under the law in states like Oregon and Florida, regulations do not need to go very far at all ...


Access To Trade Secret Environmental Information: Are Trips And Trips Plus Obligations A Hidden Landmine?, Dalindyebo Shabalala Jan 2017

Access To Trade Secret Environmental Information: Are Trips And Trips Plus Obligations A Hidden Landmine?, Dalindyebo Shabalala

School of Law Faculty Publications

Freedom of Information Acts (FOIAs) have been fundamental to enabling access to environmental information. The effectiveness of domestic and international environmental regulatory standards has been dependent on ensuring strong information access regimes, especially for information submitted to governments by firms. However, there has been an ongoing tension between providing and accessing complete regulatory information on the one hand, and the interest in maintaining the economic value of trade secrets. Such tensions have historically been managed at the domestic level within constitutional structures balancing access to information, privacy interests, and economic interests. However, the almost simultaneous advent of international norms and ...


Social Media Law In A Nutshell, Ryan Garcia, Thaddeus A. Hoffmeister Jan 2017

Social Media Law In A Nutshell, Ryan Garcia, Thaddeus A. Hoffmeister

School of Law Faculty Publications

Social media has transformed how the world communicates. Its impact has been felt in every corner of our society including the law. Social Media Law in a Nutshell is a wide-ranging look of how the social media transformation has impacted various legal fields. From marketing to employment to torts to criminal law to copyright and beyond, virtually every legal field has been changed by social media. By looking at high level concerns and example cases, Social Media Law in a Nutshell attempts to give practitioners exposure to social media issues and concerns so they can better advise clients and approach ...


Reasonable Accommodations And The Ada Amendments’ Overlooked Potential, Jeannette Cox Oct 2016

Reasonable Accommodations And The Ada Amendments’ Overlooked Potential, Jeannette Cox

School of Law Faculty Publications

There is “a dearth of precedent” outlining the scope of the Americans with Disabilities Act’s reasonable accommodations provision. The “little precedent” available “remains severely underdeveloped,” “in a state of chaos,” and leaves “many issues unresolved.” Circuit splits abound. For example, courts widely differ in their perspectives about whether the ADA requires employers to permit employees with disabilities to work from home. Similarly, in circumstances in which an employee with a disability can no longer do his or her current job, courts differ on the question of whether the ADA requires the employer to prefer the employee with a disability ...


Title Ix, Sexual Assault, And The Issue Of Effective Consent: Blurred Lines—When Should “Yes” Mean “No”?, Lori E. Shaw Jul 2016

Title Ix, Sexual Assault, And The Issue Of Effective Consent: Blurred Lines—When Should “Yes” Mean “No”?, Lori E. Shaw

School of Law Faculty Publications

This Article is intended to set the process in motion by providing the DOE and the educational institutions governed by Title IX with a proposed standard for “effective consent.” Part I provides an overview of the realities of campus life in the 2010s, delving into the root causes of sexual assault and other forms of unwanted sexual contact. Sexual hookups and binge drinking, two aspects of campus life inextricably linked to one another and to unwanted sexual contact, are explored in depth.

Part II presents an overview of the traditional role, structures, and processes of the student-conduct system. It then ...


In Defense Of Shelby County’S Principle Of Equal State Sovereignty, Jeffrey M. Schmitt Jan 2016

In Defense Of Shelby County’S Principle Of Equal State Sovereignty, Jeffrey M. Schmitt

School of Law Faculty Publications

In Shelby County v. Holder, the Supreme Court struck down a key aspect of the Voting Rights Act of 1965 based on “the principle that all States enjoy equal sovereignty.” Legal scholars have exhaustively attacked Shelby County’s equal sovereignty principle with a surprising degree of unanimity and contempt. These critics argue that the principle is theoretically unworkable, finds no support in the Supreme Court’s precedent, is inconsistent with constitutional history, undermines individual rights, and is tainted by its association with slavery and Jim Crow. This Article responds to such criticism by arguing that the principle of equal sovereignty ...


The Transformation Of South African Private Law After Twenty Years Of Democracy, Christopher J. Roederer Jan 2016

The Transformation Of South African Private Law After Twenty Years Of Democracy, Christopher J. Roederer

School of Law Faculty Publications

In The Transformation of South African Private Law after Ten Years of Democracy, 37 COLUM. HUM. RTS. L. REV. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By ...


Intellectual Property, Climate Change And Development, Dalindyebo Shabalala Jan 2016

Intellectual Property, Climate Change And Development, Dalindyebo Shabalala

School of Law Faculty Publications

Since the wave of independence that swept former European colonies in the middle to late twentieth century, access to technology and knowledge has been at the core of demands for restitution and aid by developing countries. The demands found their strongest expression in the Declaration on the Establishment of a New International Economic Order (NIEO) 1974 which sought, among other things:

“Giving to the developing countries access to the achievements of modern science and technology, and promoting the transfer of technology and the creation of indigenous technology for the benefit of the developing countries in forms and in accordance with ...


Rethinking The State Sovereignty Interest In Personal Jurisdiction, Jeffrey M. Schmitt Jan 2016

Rethinking The State Sovereignty Interest In Personal Jurisdiction, Jeffrey M. Schmitt

School of Law Faculty Publications

The Supreme Court has never articulated a coherent theoretical justification for the law of personal jurisdiction. While some opinions state that the law is based on state sovereignty, others hold that it is instead derived exclusively from the Due Process Clause’s concern for fairness. None of the opinions, however, clearly ties either of these theories to the blackletter law of personal jurisdiction. This confusion over the purpose of the doctrine has helped to create divisions both within the Court and among the Circuits on a number of important jurisdictional issues.

This Article argues that the law of personal jurisdiction ...


Immigration Enforcement Reform: Learning From The History Of Fugitive Slave Rendition, Jeffrey M. Schmitt Jan 2016

Immigration Enforcement Reform: Learning From The History Of Fugitive Slave Rendition, Jeffrey M. Schmitt

School of Law Faculty Publications

The United States deports hundreds of thousands of immigrants each year, leaving many of the country’s eleven million undocumented immigrants living in constant fear of being torn from their families and homes. Because Congress has been unable to address this humanitarian crisis with meaningful legislative reform, President Obama recently announced that his administration will consider changes to its enforcement policy. By drawing a parallel to the nation’s experience with fugitive slave rendition, this Essay argues that President Obama should allow the states to work with U.S. Immigration and Customs Enforcement (ICE) to moderate the implementation of federal ...


Is Fracking An Inflammatory Word?, Blake Watson Jul 2015

Is Fracking An Inflammatory Word?, Blake Watson

School of Law Faculty Publications

Hydraulic fracturing is a method of oil and gas extraction. It involves the pumping of a mixture of proppants, chemicals, and large amounts of water into wells to exert pressure and fracture rock formations, thereby allowing otherwise “trapped” gas and oil to flow more freely. See Railroad Commission of Texas v. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 621 (Tex. 2011) (describing the “fracing” process). With the development of horizontal drilling and more effective lubricants, it is now possible to remove “unconventional” sources of oil and gas located in shale and other dense substrata ...


Preventing Juror Misconduct In A Digital World: A Comparative Analysis, Thaddeus A. Hoffmeister Jun 2015

Preventing Juror Misconduct In A Digital World: A Comparative Analysis, Thaddeus A. Hoffmeister

School of Law Faculty Publications

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in ...


Global Income Inequality And The Potential For Global Democracy: A Functionalist Analysis, Andrew L. Strauss Jan 2015

Global Income Inequality And The Potential For Global Democracy: A Functionalist Analysis, Andrew L. Strauss

School of Law Faculty Publications

The thesis that I wish to develop in this chapter is that a functionalist view of the development of global institutions suggests that the structural inequalities in global income that were a primary cause of the global economic crisis of 2008, and that continue to endanger the world economy, have the potential to provide the political preconditions for a global regime that can help redress those inequalities. To do so, however, such a regime must empower the less economically well off through representation, and the regime itself must have the practical ability to influence global economic policy. Such a regime ...


The Federal Right To Recover Fugitive Slaves: An Absolute But Self-Defeating Property Right, Jeffrey M. Schmitt Jan 2015

The Federal Right To Recover Fugitive Slaves: An Absolute But Self-Defeating Property Right, Jeffrey M. Schmitt

School of Law Faculty Publications

A key insight of modern property scholarship is that property rights are limited by the rights of others. In the antebellum era, slave owners’ property rights in fugitive slaves who escaped into the North existed in tension with the rights of free blacks who might be wrongfully claimed. At first, the Fugitive Slave Act of 1793, as supplemented by the law in most Northern states, limited a slave owner’s property rights by providing limited legal protections to free blacks against being erroneously claimed as slaves. As attitudes towards slavery changed, however, state laws in the North became increasingly protective ...


Making Sense Of Extraterritoriality: Why California’S Progressive Global Warming And Animal Welfare Legislation Does Not Violate The Dormant Commerce Clause, Jeffrey M. Schmitt Jan 2015

Making Sense Of Extraterritoriality: Why California’S Progressive Global Warming And Animal Welfare Legislation Does Not Violate The Dormant Commerce Clause, Jeffrey M. Schmitt

School of Law Faculty Publications

The dormant Commerce Clause’s extraterritoriality doctrine has long baffled courts and legal scholars. Rather than attempt to make sense of the doctrine, most scholars have instead argued that it should be abandoned as unnecessary and unworkable. Such scholarship, however, is of little use to the lower courts struggling with extraterritoriality issues. The federal courts in California, for example, have recently been forced to rule on challenges to California’s landmark carbon emissions and animal welfare legislation. Plaintiffs in these cases argue that California is regulating extraterritorially by telling ethanol producers and farmers in other states how to run their ...


Intellectual Property Treaties And Development, Dalindyebo Shabalala, Anselm Kamperman Sanders Nov 2014

Intellectual Property Treaties And Development, Dalindyebo Shabalala, Anselm Kamperman Sanders

School of Law Faculty Publications

This work responds to the increasing need in many countries to better understand linkages between intellectual property, trade rules, and economic and social development, and to find new ways of implementing intellectual property rules and optimizing their effects. It provides a comprehensive analysis of the latest legal, economic, political and social research and advanced current thinking on the relationship between intellectual property and trade and development.

This chapter traces the link between intellectual property protection, innovation, and development trough the multilateral WTO system and bilateral trade and investment treaties. In a post-TRIPS globalized world, knowledge-intensive economies encounter increasing difficulties in ...


Climate Change, Technology Transfer And Intellectual Property: Options For Action At The Unfccc, Dalindyebo Shabalala Oct 2014

Climate Change, Technology Transfer And Intellectual Property: Options For Action At The Unfccc, Dalindyebo Shabalala

School of Law Faculty Publications

In his dissertation, the author examines the issue of whether intellectual property poses a barrier to technology transfer to address climate change and if so, what policymakers should do at the multilateral level. The book refocuses the question away from empirical approaches toward the key question of the legal capacity of developing countries to prospectively restructure their economies to access technologies and move up the technology value chain. It concludes with a set of recommendations for action at the United Nations Framework Convention on Climate Change.

The author defended his dissertation Oct. 15, 2014, at Maastricht University in the Netherlands ...


The Challenges Of Preventing And Prosecuting Social Media Crimes, Thaddeus A. Hoffmeister Sep 2014

The Challenges Of Preventing And Prosecuting Social Media Crimes, Thaddeus A. Hoffmeister

School of Law Faculty Publications

Wanted: Caretaker For Farm. Simply watch over a 688 acre patch of hilly farmland and feed a few cows, you get 300 a week and a nice 2 bedroom trailer, someone older and single preferred but will consider all, relocation a must, you must have a clean record and be trustworthy—this is a permanent position, the farm is used mainly as a hunting preserve, is overrun with game, has a stocked 3 acre pond, but some beef cattle will be kept, nearest neighbor is a mile away, the place is secluded and beautiful, it will be a real get ...


Review: 'Oklahoma’S Indian New Deal', Blake Watson Aug 2014

Review: 'Oklahoma’S Indian New Deal', Blake Watson

School of Law Faculty Publications

Citation information for the book reviewed:

Blackman, Jon S. 2013. Oklahoma's Indian New Deal. Norman, OK: University of Oklahoma Press, 2013.


Buying West Florida From The Indians: The Forbes Purchase And Mitchel V. United States (1835), Blake Watson Apr 2014

Buying West Florida From The Indians: The Forbes Purchase And Mitchel V. United States (1835), Blake Watson

School of Law Faculty Publications

This article takes an in-depth look at Mitchel v. United States. In order to place the Forbes Purchase in historical context, Part I provides an overview of European and American control of Florida. Part II details the events that led to the sale by the Creek and Seminole Indians of nearly a million and a half acres in 1804-1806 and 1810-1811. Part III describes the efforts of the purchasers and subsequent grantees to obtain confirmation of the Forbes Purchase. Part IV details the decisions in the Mitchel litigation. The purchase is compared in Part V to other transfers of Indian ...


Writing Lessons From Abroad: A Comparative Perspective On The Teaching Of Legal Writing, Adam Todd Apr 2014

Writing Lessons From Abroad: A Comparative Perspective On The Teaching Of Legal Writing, Adam Todd

School of Law Faculty Publications

With a few exceptions, American legal writing pedagogy has not been adopted in any meaningful way in foreign countries. At most, it has garnered some attention in Legal English courses, but has otherwise received scant reception in foreign universities and little academic interest by continental and other civil law academics.

The reason transplantation, or “borrowing,” of American legal writing pedagogy has not occurred is due to the deep structural differences between the American legal education system and the education system found in most other countries, especially civil law countries. For example, many law schools in Western Europe require up to ...


“Liking” The Social Media Revolution, Thaddeus A. Hoffmeister Jan 2014

“Liking” The Social Media Revolution, Thaddeus A. Hoffmeister

School of Law Faculty Publications

As in other areas of society, social media has significantly influenced the law. Currently, civil and criminal cases can, and often do, turn on an attorney's understanding and use of social media. In the realm of family law, most practitioners view social media as an essential tool-one that could serve as grounds for malpractice if ignored. Even in legal academia-an area long resistant to change-law schools are starting to understand the impact of social media on the law and offer courses like Social Media and Criminal Law and Law and Social Media.

The goal of this essay is not ...


Teaching “Scholarly Writing” In The First-Year Lwr Class: Bridging The Divide Between Scholarly And Practical Writing, Adam Todd Oct 2013

Teaching “Scholarly Writing” In The First-Year Lwr Class: Bridging The Divide Between Scholarly And Practical Writing, Adam Todd

School of Law Faculty Publications

At a time when there are calls to make legal education more practical and less theoretical, this essay bucks the trend. This piece proposes that there is a need to include an appreciation for “academic” or “scholarly writing” alongside the “practical writing” taught in first-year legal writing classes.


Getting Beyond Intuition In The Probable Cause Inquiry, Erica Goldberg Jan 2013

Getting Beyond Intuition In The Probable Cause Inquiry, Erica Goldberg

School of Law Faculty Publications

Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this elusive standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The ...


What Do Legal Employers Want To See In New Graduates? Using Focus Groups To Find Out, Susan Wawrose Jan 2013

What Do Legal Employers Want To See In New Graduates? Using Focus Groups To Find Out, Susan Wawrose

School of Law Faculty Publications

What do legal employers expect from new law school graduates? What skills and competencies do employers value most? With the slow legal hiring market and the pressure on law schools to produce graduates with adequate skills to enter law practice, these are burning questions at law schools today. We went directly to typical employers of our law school’s graduates to find the answers.

This Article describes the original research of a Bar Outreach Project formed by three legal research and writing professors at the University of Dayton School of Law. We conducted formal focus groups with legal employers and ...


Climate Change Geoengineering: Philosophical Perspectives, Legal Issues, And Governance Frameworks, William C. G. Burns, Andrew L. Strauss Jan 2013

Climate Change Geoengineering: Philosophical Perspectives, Legal Issues, And Governance Frameworks, William C. G. Burns, Andrew L. Strauss

School of Law Faculty Publications

The international community is not taking the action necessary to avert dangerous increases in greenhouse gases. Facing a potentially bleak future, the question that confronts humanity is whether the best of bad alternatives may be to counter global warming through human-engineered climate interventions. In this book, eleven prominent authorities on climate change consider the legal, policy, and philosophical issues presented by geoengineering. The book asks: When, if ever, are decisions to embark on potentially risky climate modification projects justified? If such decisions can be justified, in a world without a central governing authority, who should authorize such projects and by ...