Law Commons^™

The Duty To Think Strategically, Nadelle Grossman

Faculty Publications

Under Delaware corporate law, directors and officers have a duty to oversee their firm’s management of risk to limit losses. Corporate law does not, however, require directors or officers to oversee their firm’s management of strategy to create gains. Yet, managing both risk and strategy is essential to a firm in creating value. In fact, as I argue in the Article, the current focus by courts and commentators only on risk management to prevent losses could actually undermine a firm’s management of its strategy for gains. I therefore propose a model for how Delaware corporate law can drive firms to …

Two Cheers For The New Paradigm, Michael M. O'Hear

Faculty Publications

This brief essay comments on Attorney General Eric Holder's much-publicized announcement in 2013 of new federal prosecution priorities. While Holder's announcement represents a welcome shift away from the rigid legalism that has dominated federal prosecutorial policies for a generation, some concerns are also highlighted in the essay.

Why Legalized Insider Trading Would Be A Disaster, George W. Dent

Faculty Publications

Although insider trading is illegal, a stubborn minority still defends it as an efficient means of compensating executives and spurring innovation. However, this minority assumes that legal insider trading would be constrained by the personal wealth of the insiders so that the scope of insider trading would rarely or never be so large as to cause outsiders to stop trading in affected stocks. This Note argues that there would be no such constraint because insiders could obtain outside financing to fully exploit their informational advantage. Outsiders would flee the public stock markets, which would drastically shrink or disappear. The prospect …

Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis

Faculty Publications

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative.

When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by “expressly determine[in] that there is no just reason for delay.” The rule was designed to ease the hardship on litigants …

Tattoos & Ip Norms, Aaron K. Perzanowski

Faculty Publications

The U.S. tattoo industry generates billions of dollars in annual revenue. Like the music, film, and publishing industries, it derives value from the creation of new, original works of authorship. But unlike rights holders in those more traditional creative industries, tattoo artists rarely assert formal legal rights in disputes over copying or ownership of the works they create. Instead, tattooing is governed by a set of nuanced, overlapping, and occasionally contradictory social norms enforced through informal sanctions. And in contrast to other creative communities that rely on social norms because of the unavailability of formal intellectual property protection, the tattoo …

(Dis)Owning Religious Speech, B. Jessie Hill

Faculty Publications

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.

The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its …

The Law And Economics Of Norms, Juliet P. Kostritsky

Faculty Publications

The Evolution of Norms Within Economics and Law: Why Norms Were Ignored and Why They Matter Under Realistic Models of Behavior in Which Norms Emerge as the Outcome of Exchange to Reduce Costs

Tribute To Professor Calvin William Sharpe, Robert N. Strassfeld

Faculty Publications

The editors of the Case Western Reserve Law Review respectfully dedicate this issue to Professor Calvin William Sharpe.

One can only stand in awe when reflecting on the extraordinary professional accomplishments of Professor Calvin William Sharpe. It is rare in the legal academy to find a professor whose academic range is so broad and whose level of quality is so consistently high. That range and quality are evident regardless of whether one looks at Professor Sharpe's teaching, scholarship, or professional service.

Special Topic Introduction: Minerva At The Departure Gate, Robert N. Strassfeld

Faculty Publications

No abstract provided.

Junk Science And The Execution Of An Innocent Man, Paul C. Giannelli

Faculty Publications

Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science.

The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor then attempted to derail an investigation by the Texas …

Conservative Principles For Environmental Reform,, Jonathan H. Adler

Faculty Publications

Major environmental policy reform is long overdue. The current regulatory architecture was erected in the 1970s. Since then meaningful reforms have been few and far between. A few reforms and regulatory expansions were adopted in the 1980s, and Congress enacted significant reforms to the Clean Air Act in 1990. Only the most minor environmental bills have been enacted since then.

The Dynamics And Global Implications Of Subglobal Carbon-Restricting Regimes, Juscelino F. Colares

Faculty Publications

The European Union and Australia have enacted comprehensive carbon-restricting reforms that will affect both domestic and foreign industries. After describing these reforms in detail, the article develops a microeconomic analytical model that explains the impact these regimes have on the dynamics of inter-firm competition in carbon-restricting nations and how they will also influence technology choices by certain industries in carbon-friendly nations. Specifically, exporters and producers operating in vertically-integrated industries in carbon-friendly nations will increasingly elect carbon-efficient technologies to minimize costs as they adjust to a changing international regulatory environment. The article hypothesizes that this shift in the carbon intensity of …

China’S Human Rights Footprint In Africa, Timothy Webster

Faculty Publications

A significant amount of recent scholarship and commentary accuses China of plundering the African continent, coddling its dictators, and flouting labor and environmental standards. This paper makes the counterintuitive claim that, despite irrefutable cases of abuse, China’s engagement with Africa has actually improved the human rights conditions of millions of Africans. First, it places China’s abuses in context, showing that they differ little from the abuses and patronage politics of the major Western powers. Second, it examines the evolution of international relations between China and various African countries, from the exportation of political revolution in the 1950s and 1960s, to …

The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson

Faculty Publications

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen's ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court's fundamental rights jurisprudence when it is motivated by a desire to …

State-Sponsored Religious Displays In The U.S. And Europe: Introduction, Mark L. Movsesian

Faculty Publications

On June 22, 2012, the Center for Law and Religion proudly hosted, together with the Department of Law at Libera Universita Maria SS. Assunta (LUMSA), an international conference, State-Sponsored Religious Displays in the U.S. and Europe. Held at LUMSA's campus in Rome, Italy, the conference brought together leading American and European scholars, judges, and government officials to address the legality of public religious displays in different nations. Professor Silvio Ferrari of the University of Milan delivered the Conference Introduction. Panels included Cultural or Religious? Understanding Symbols in Public Places; The Lautsi Case and the Margin of Appreciation; and State-Sponsored Religious …

Marks, Morals, And Markets, Jeremy N. Sheff

Faculty Publications

The prevailing justification for trademark law depends on economic arguments that cannot account for much of the law's recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean "natural rights" theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractualist tradition in moral philosophy, I develop and apply a new theoretical framework to evaluate …

Teaching Employment Discrimination Law, Virtually, Miriam A. Cherry

Faculty Publications

(Excerpt)

The process of education, teaching, and learning has ideally been conceived of as a transformative endeavor. Students learn a new way of thinking and asking questions, rather than memorizing or assimilating material verbatim by rote. As curiosity and inquisitiveness are to be valued, students change their mode of analysis and in so doing, the way that they perceive the world. While this is the typical meaning of “transformative” learning, what if learning were actually transformative? In other words, what if what you were learning or the process of learning turned you into someone else (at least for the course …

Introduction Of Chief Justice Roberts, At The Robert H. Jackson Center, May 17, 2013, John Q. Barrett

Faculty Publications

(Excerpt)

A backdrop to this event is an ongoing, if entirely friendly, War Between the States … or at least between two States.

As a boy, Robert H. Jackson and family moved from the state of his birth to a second state, where he completed grade school and high school and then embarked on life. Our honored guest, John G. Roberts, Jr., did the same thing in his boyhood. In Jackson’s case, following his birth and early boyhood on the family farm in Spring Creek Township, Warren County, Pennsylvania, the move was to Frewsburg, New York, and then to Jamestown—Pennsylvania …

Teaching Legal History In The Age Of Practical Legal Education, Douglas E. Abrams

Faculty Publications

Historian Henry Steele Commager said, “History is useful in the sense that art is useful--or music or poetry or flowers; perhaps even in the sense that religion and philosophy is useful .... For without these things life would be poorer and meaner.” For law students who anticipate a career representing private and public clients and participating in public discussion, however, study of legal history carries rewards beyond intellectual stimulation and personal satisfaction. Law students contemplating client representation should ponder Justice Holmes's advice that “[h]istory must be a part of the study [of law], because without it we cannot know the …

Regulators, Mount Up, Ben L. Trachtenberg

Faculty Publications

Since I began circulating drafts of an article arguing that certain law school officials have exposed themselves to professional discipline by engaging in dishonest marketing tactics, responses have varied considerably. Everyone seems to agree, however, that law school officials should not lie in their pursuit of students. There also appears to be broad consensus that misleading (albeit not intentionally false) marketing—such as systematically skewed salary statistics—is an unfortunate phenomenon, although disagreement remains on just how serious a problem it is and what level of corrective effort is appropriate. In their recently-published response pieces, Kyle McEntee of Law School Transparency (“LST”) …

Do You Know What's On Your Plate?: The Importance Of Regulating The Processes Of Food Production, Martha Dragich

Faculty Publications

This article argues that the current regulatory approach-focusing on the supposed equivalence of new foods to traditional ones-is unduly narrow, particularly given the characteristics of the modem food system. To achieve the broad objectives of the FDCA in the context of the industrialized, highly processed, and global food supply of the twenty-first century requires adopting a broader understanding of consumer protection needs with respect to food. The FDCA itself is written in very broad terms and provides much of the authority needed today. The FDA's enforcement capacity, however, already is severely strained.52 Moreover, the scientific basis for some process- oriented …

Ensuring Remedies To Cure Cramming, Amy J. Schmitz

Faculty Publications

The unauthorized addition of third party charges to telecommunications bills ("cramming") is a growing problem that has caught the attention of federal regulators and state attorney generals. This Article therefore discusses the problems associated with cramming, and highlights consumers’ uphill battles in seeking remedies with respect to cramming claims. Indeed, it is imperative for policymakers, researchers, consumer advocates, and industry groups to collaborate in developing means for resolving these claims. Accordingly, this Article offers a proposal for resolving cramming disputes in order to advance this collaboration, and inspire development of a functioning online dispute resolution ("ODR") process to handle these …

American Exceptionalism In Consumer Arbitration, Amy J. Schmitz

Faculty Publications

“American exceptionalism” has been used to reference the United States’ outlier policies in various contexts, including its love for litigation. Despite Americans’ reverence for their “day in court,” their zest for contractual freedom and efficiency has prevailed to result in U.S. courts’ strict enforcement of arbitration provisions in both business-to-business (“B2B”) and business-to-consumer (“B2C”) contracts. This is exceptional because although most of the world joins the United States in generally enforcing B2B arbitration under the New York Convention, many other countries refuse or strictly limit arbitration enforcement in B2C relationships due to concerns regarding power imbalances and public enforcement of …

Constitutional Borrowing As Jurisprudential And Political Doctrine In Shri Dk Basu V. State Of West Bengal, Sam F. Halabi

Faculty Publications

Under prevailing theories of comparative constitutional law, courts use foreign precedent in one of three ways: to identify “universal” principles of law applicable across jurisdictions; to sharpen understanding of domestic law through contrasting foreign judgments; and, in the case of legal systems with shared origins, to consider alternative jurisprudential paths. While the terminology differs, the concepts broadly hold across current theoretical treatments. Methodologically, these theories are built by analyzing certain foreign decisions, while scholars devote less effort in trying to test prevailing theories by applying theory to a court judgments outside those used to build their theories. In building a …

Family Lawyering: Past, Present, And Future, John M. Lande, Forrest S. Mosten

Faculty Publications

In the past fifty years, divorce law has turned upside down. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle. Today, courts regularly handle a much broader range of issues, including disputes about issues such as domestic violence; parental relocation; religious upbringing; payment for children's college education; grandparent and stepparent visitation rights; rights of same-sex and unmarried couples; alienation of parents and children; and the role of e-mail, the Internet, and cybersex in divorce.

Family law practice inevitably evolved in response to these social and legal changes. This …

Closing The Schoolhouse Doors: State Efforts To Limit K-12 Education For Unauthorized Migrant School Children, Angela M. Banks

Faculty Publications

No abstract provided.

Informal The New Normal, Dick Kawooya

Faculty Publications

No abstract provided.

Ethical Implications Of Intellectual Property In Africa, Dick Kawooya

Faculty Publications

No abstract provided.