Law Commons^™

Recovery Of An Endangered Provision: Untangling And Reviving Critical Habitat Under The Engangered Species Act, Kalyani Robbins

Akron Law Faculty Publications

There has been long-term confusion among courts, agencies, developers, and environmental organizations regarding the legal, environmental, and economic impacts of designating critical habitat for species listed as threatened or endangered under the ESA. At the heart of this difficulty has been a need to understand the degree to which the protections for critical habitat can be distinguished from those for listed species generally. Critical habitat is primarily protected via section 7’s requirement that federal agencies consult with the Fish & Wildlife Service and the National Marine Fisheries Service to determine whether a proposed federal action either jeopardizes a listed species …

Otc Derivatives Trading Under The Financial Reform Bill: Is It Tough Enough?, Willa E. Gibson

Akron Law Faculty Publications

Both the U.S. House of Representatives and the U.S. Senate have drafted financial reform legislation prompted by the financial market failings the country experienced in 2008. Both versions provide for comprehensive regulation of the OTC derivatives products, which were used extensively by those financial institutions that lost millions of dollars from investments in mortgage securities to insure against subprime mortgage defaults. This paper discusses the efficiency of proposed Congressional legislation to regulate the Over-the-Counter (OTC) derivatives market in light of the provision in the legislation that effectively exempts customized OTC derivatives contracts from clearing requirements and exchange trading. The exemption …

The Influence Of Abraham Lincoln On The Supreme Court's Interpretation Of The Constitutional Principles Of Liberty And Equality, Wilson Huhn

Akron Law Faculty Publications

The purpose of this article is to demonstrate that the Supreme Court has embraced Abraham Lincoln’s transcendent understanding of the principles of liberty and equality – transcendent in the sense that these principles are considered to be timeless, universal, and morally binding. The article briefly summarizes the Transcendental Movement, sets forth Lincoln’s understanding of liberty and equality, and describes how, in the modern era, the Supreme Court has “constantly approximated” the principles that Lincoln believed that this country is dedicated to.

Foreword: The New Era- Quo Vadis?, John Sahl

Akron Law Faculty Publications

The Inaugural MBI Symposium’s twenty-six participants highlight many important developments and challenges caused by MJP and new technologies. Their assessments and suggestions provide a helpful roadmap for lawyers and regulators to negotiate the increasingly complex, fast-paced, and ethically risky landscape for delivering legal services. Several panelists suggested regulatory reforms that range from the creation of a regulatory framework for lawyers engaged in crossborder practice to the creation of standards for the supervision of offshore outsourced legal services268 and the mining of metadata. Some of the panelists’ suggestions and reforms are especially important given the “high [financial] stakes” involved in the …

Abolishing The Missing-Claim Rule For Judicial Cancellations, Ryan G. Vacca

Akron Law Faculty Publications

This article questions why some courts that have already found a federally registered trademark invalid refuse to cancel the registration despite having the authority to do so under § 37 of the Lanham Act. Examination of cases involving judicial cancellations reveals that a failure to assert cancellation as a claim, as opposed to a variety of other methods of requesting cancellation, is the reason courts refuse to exercise their power under § 37 - referred to as the missing-claim rule. This article criticizes the missing-claim rule as illogical and frustrating trademark law's purpose and proposes the missing-claim rule be abolished, …

Introductory Remarks, Roza Pati

Intercultural Human Rights Law Review

Introductory remarks by Roza Pati, Professor of Law & Executive Director of LL.M. / J.S.D. Program in Intercultural Human Rights for the Intercultural Human Rights Law Review Annual Symposium.

Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless

Intercultural Human Rights Law Review

This article demonstrates that the basic, analytical concept of a question of law in immigration court decisions is more expansive than is typically understood. I unearth and analyze confusion in immigration case law and propose some ways for us to think more clearly about the law-fact distinction, focusing on questions that involve the application of law to facts that have already been established - questions that are commonly called mixed questions. Part II of this article briefly traces the history of immigration judicial review, culminating with the REAL ID Act of 2005 and the jurisdictional savings clause contained in it. …

Good Things Come To Those Who Wait - Reconsidering Indeterminate And Indefinite Detention As Tools In U.S. Immigration Policy, Michael S. Vastine

Intercultural Human Rights Law Review

This article will primarily focus on illustrating examples of lengthy detention that surely seem unending to the immigrants involved, if not "indefinite" as determined by the U.S. Supreme Court. I will address all other aspects of detention more fully than actual "indefinite" detention. Detention is one of many tools at the disposal of DHS to assure orderly immigration and provide predictable consequences for violators of the United States immigration system. I hope to illustrate the frequently coercive affects of the detention scheme and argue that in some, if not many, contexts detention actually impedes the orderly administration of justice, despite …

Stories In Mexico And The United States About The Border: The Rhetoric And The Realities, Gloria Valencia-Weber, Antoinette Sedillo Lopez

Intercultural Human Rights Law Review

Our discussion will: 1) examine the concept of using word choices and metaphors as devices in storytelling to frame political, economic and social issues, which are meant to evoke certain emotional responses among specific audiences in the immigration debates; 2) describe the legal history of the border as a legal and social construct as background for the stories that are told about immigration; 3) demonstrate with examples of stories published in Mexico and the U.S. that portray how some stories about the border are being framed in the U.S. and in Mexico by identifying word choices, metaphors, audience, social and/or …

The Responsibility To Protect Doctrine: Customary International Law, An Emerging Legal Norm, Or Just Wishful Thinking, Peter Stockburger

Intercultural Human Rights Law Review

The purpose of this article is to examine the scope and purpose of this new R2P doctrine, providing a conceptual framework for determining whether the doctrine has, to any degree, reached the level of customary international law or, conversely, is simply an emerging norm within the international legal community. Near its completion, this paper seeks to examine the current debates over the legitimacy of intervention pursuant to the R2P doctrine, either multilateral or unilateral, and what effect these debates are having on the codification and practical application of the R2P doctrine. To achieve this above stated purpose, this article will …

Changes In The Wind: How Increased Detention Rates, New Medical Care Standards, And Ice Policy Shifts Alter The Debate On Immigrant Detainee Healthcare, Angela Morehouse

Intercultural Human Rights Law Review

This paper provides an analysis of the recent changes in immigration detainee healthcare and argues that ICE is taking significant and proactive steps to address the systemic failures of the prior regime. Briefly discussed at the conclusion of this paper is ICE's significant August 6, 2009 announcement that it is enacting additional major reforms to the immigration detention system. This critical development lends credence to this paper's argument that ICE is developing a workable framework for providing appropriate healthcare to immigrant detainees. However, as the announcement came after this paper had been written, a detailed discussion of how those changes …

A Comparative Approach To Enforced Disappearances In The Inter-American Court Of Human Rights And The European Court Of Human Rights Jurisprudence, Ophelia Claude

Intercultural Human Rights Law Review

Taking into account the current tremendous caseload before the European Court related to enforced disappearances, this article seeks to make a comparative analysis between the Inter-American Court and the European Court jurisprudence. Part I addresses the various difficulties concerning evidence in disappearance cases. It examines the criteria set up by both courts in terms of admission of evidence and burden of proof, as well as the requisite standard of proof in order to accommodate the difficulties arising in disappearance cases. It underscores the Inter-American Court's willingness to render the standard of evidence more flexible in response to the conundrum faced …

Implementing The Settlement Of State Of North Dakota, By And Through The North Dakota State Board Of Higher Education And The University Of North Dakota V. National Collegiate Athletic Association, Grant Shaft

North Dakota Law Review

No abstract provided.

American Professional Sports Is A Doper's Paradise: It's Time We Make A Change, Daniel Gandert, Fabian Ronisky

North Dakota Law Review

No abstract provided.

Intellectual Property—Patents: The United States Supreme Court Clarifies The Test For Patent Eligibility Of Processes, Rebecca L. Binstock

North Dakota Law Review

Bilski v. Kappos, 130 S. Ct. 3218 (2010)In Bilski v. Kappos, the United States Supreme Court clarified the threshold test of patent eligibility under 35 U.S.C. § 101, holding the machine-or-transformation test was not the sole test to determine whether a process invention was eligible for patent. The machine-or-transformation test is an important and useful clue in determining whether a process invention is patent eligible, but should not be used as a bright-line test. The Court interpreted the statutory language of “process” with its ordinary, contemporary, and common meaning, which did not require a tie to a machine or transformation …

Public Opinion And State Supreme Courts, Neal Devins, Nicole Mansker

Faculty Publications

No abstract provided.

A Mock Terrorism Application Of The P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

Scholarly Works

Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorism scenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives …

Who's The Boss: Unmasking Oversight Liability Within The Corporate Power Puzzle, Anne M. Tucker

Scholarly Works

This article explores the competing interests between director authority and accountability within the doctrinal developments underpinning the arguments for and against director oversight liability. The historic losses suffered by companies entangled in the web of subprime mortgages, collateralized debt holdings, and the ensuing credit crisis have brought the role of corporate directors as risk managers under renewed public scrutiny. Directors' authority and their accountability to shareholders are two critical pieces to striking the appropriate balance among the roles, rights, and responsibilities of directors, officers, share- holders, and other corporate constituencies who operate within the corporate power puzzle. Numerous shareholder derivative …

Environmental Law, Travis M. Trimble

Scholarly Works

In this survey period, the United States Court of Appeals for the Eleventh Circuit decided two cases addressing the scope of agency discretion to interpret statutes. In Friends of the Everglades v. South Florida Water Management District, the Eleventh Circuit held that the Environmental Protection Agency’s adoption of the “unitary waters” definition of navigable waters under the Clean Water Act was reasonable even though that approach had been universally rejected by the courts as an interpretation of the statute prior to the agency’s rule. In Miccosukee Tribe of Indians of Florida v. United States, the Eleventh

Circuit upheld …

The Changing Face Of Money, Christopher M. Bruner

Scholarly Works

In this essay I argue that widespread failure to comprehend the intrinsic nature of modern money loomed large in the recent crisis, and that broader comprehension of its meaning is a precondition for effective post-crisis reforms. First, I provide a brief history of money, emphasizing its gradual divergence from inherent value. I then consider the value of today’s dollar in economic, legal and psychological terms, arguing that each perspective conveys a single over-arching lesson—that better comprehending our money requires better comprehending ourselves. The introspection that this exercise demands reveals with unique clarity some of the critical lessons of the crisis …

Robinson Everett: The Citizen Lawyer Ideal Lives On, David F. Levi

Faculty Scholarship

In this tribute to Professor Robinson O. Everett, Dean David Levi questions the view that the citizen-lawyer or lawyer-statesmen models are in decline. Tracing Professor Everett’s varied career, accomplishments, and commitments to individuals and institutions; Levi contends that Everett combined the lawyer's traditional focus on the individual with an overall dedication to the larger community. Everett was not just a model citizen; he was a lawyer-citizen. Levi contends that the survival of the lawyer-citizen and lawyer-statesmen models is a matter of choice and character. Nothing in the current structure of the legal economy places these models out of reach for …

Response: Anti-Discrimination Law In Peril?, Trina Jones

Faculty Scholarship

No abstract provided.

Cochiti Pueblo Tribal Court Handbook (2010), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Tesuque Pueblo Tribal Court Handbook (2010), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Zia Pueblo Tribal Court Handbook (2010), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Visions Of Cadiz: The Constitution Of 1812 In Historical And Constitutional Thought, M C. Mirow

Faculty Publications

This chapter examines ways the Spanish Constitution of 1812, also known as the Constitution of Cddiz, has been viewed in historical and constitutional thought. The document is a liberal constitution establishing constitutional rights, a representative government, and a parliamentary monarchy. It influenced ideas of American equality within the Spanish Empire, and its traces are observed in the process of Latin American independence. To these accepted views, one must add that the Constitution was a lost moment in Latin American constitutional development. By the immediate politicization of constitutionalism after 1812, the document marks the beginning of constitutional difficulties in the region.

International Decision, African Court On Human And Peoples’ Rights, Michelot Yogogombaye V. Republic Of Senegal, Charles Chernor Jalloh

Faculty Publications

State Parties have automatic access to the African Court on Human and Peoples’ Rights, based in Arusha, Tanzania. In stark contrast, individuals and NGOs (i.e. those most likely to bring cases alleging human rights violations), can only initiate proceedings if the respondent State has entered a special declaration accepting the Court’s competence to receive such cases. Predictably, in a continent rife with human rights violations, only a few African States have accepted the Court’s jurisdiction to hear such (individual or NGO) petitions since its formal creation in June 1998. After years without hearing any cases, the Court finally received a …

The Consequences Of Congress’S Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Faculty Scholarship

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

Maryland's Affordable Housing Land Trust Act, James J. Kelly Jr.

Journal Articles

On May 20, 2010, Maryland’s governor, Martin O’Malley, signed the Affordable Housing Land Trust Act (AHLT Act) into law. Its enactment marked the culmination of six years of advocacy by the University of Baltimore Community Development Clinic and by the Maryland Asset Building and Community Development Network. The AHLT Act authorizes a new method of creating and sustaining permanently affordable homeownership. By using the affordable housing land trust agreements outlined in the legislation, Maryland nonprofits and governmental agencies may now enter into enforceable long-term agreements with publicly subsidized low- and moderate-income homeowners to ensure that their homes remain affordable to …

The Role Of The Family In Criminal Law, Gerard V. Bradley

Journal Articles

Privilege or Punish: Criminal Justice and the Challenge of Family Ties. Dan Markel, Jennifer M. Collins & Ethan J. Leib. Oxford University Press, 2009.

The authors of Privilege or Punish (PoP) pose two questions, one descriptive and the other morally evaluative. "First, how does the criminal justice system in this country approach the issue of family status? Second, how should family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of nondiscrimination?"