Law Commons^™

Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson

Akron Law Faculty Publications

With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law. U.S. federal and state courts are presumed …

Should States Ban The Use Of Non-Positive Interventions In Special Education? Re-Examining Positive Behavior Supports Under The Idea, Elizabeth Shaver

Akron Law Faculty Publications

In the 1980s and 1990s, behavior analysts vigorously debated ethical concerns about the use of certain behavioral interventions to address severe behavior of disabled children. In 1997, while that debate was still ongoing, the Individuals with Disabilities Education Act (IDEA) was amended to require educators to consider the use of “positive behavioral interventions and supports,” among other strategies, to address problem behavior that impedes a disabled child’s learning. Since 1997, the “positive behavioral interventions and supports” framework has shifted focus, but IDEA’s language essentially has stayed the same. In addition, some states have enacted poorly-worded statutes or regulations in order …

"Pennies On The Dollar": Reallocating Risk And Deficiency Judgment Liability, Kristen Barnes

Akron Law Faculty Publications

Many homeowners are unaware that they face the prospect of crushing personal financial liability if they default on their mortgage loans. While owners may appreciate that they can lose their homes to the lender if they fail to make payments in accordance with their loan terms, many do not fully comprehend that the exposure they have under such circumstances does not end with relinquishing the financed property. In what are known as recourse states, if the lender forecloses and the foreclosure sale does not yield an amount sufficient to cover the borrower’s outstanding debt balance, the lender may file for …

The Priest-Penitent Privilege Revisited: A Reply To The Statutes Of Abrogation, Jude O. Ezeanokwasa

Intercultural Human Rights Law Review

There is no gainsaying the fact that the near-pandemic social ill of child sex abuse calls for urgent attention given the many dire effects of the crime. Harm to children is not suffered by them alone. The immediate family, parents, and friends also suffer with them. Moreover, society is burdened by the existence of child sex abuse as it is called on to restore the physical and mental health of these often traumatized younger members. To nip this problem in the bud, pursuing the philosophy of early detection, all fifty states, the District of Columbia, American Samoa, Guam, Puerto Rico, …

Marshalling The Forces Of Good: Religion And The Fight Against Human Trafficking, Roza Pati

Intercultural Human Rights Law Review

This paper finds its inspiration in the Social Doctrine of the Catholic Church that also addresses "the brethren of other Churches and Ecclesial communities, ... the followers of other religions, as well as. . . all people of good will, who are committed to serving the common good." Elated by a sign of our time, the openness for dialogue amongst religions and their understanding of the urgent need for a joining of their forces to promote justice, fraternity, peace and human development, this paper does not aim at praising or blaming one religion over another, but looks at the issues …

Privacy And Security Post-Snowden: Surveillance Law And Policy In The United States And India, Zachary W. Smith

Intercultural Human Rights Law Review

The paper is organized in a dual format, through the lens of two behemoths within the information technology sector: the United States and India. While India is an emerging superpower just beginning to recognize the role of information privacy in its society, the United States has a long paper trail of attempts to establish a settled framework for privacy enforcement. This article is subdivided into five sections in accordance with the New Haven' approach to give the reader comprehensive insight into the vexing issues that surround the information privacy debate today. Part I provides an interdisciplinary perspective into the rise …

Some Thoughts On Technology And The Practice Of Law, Fredric I. Lederer

Popular Media

No abstract provided.

Using Tips To Discount To Present Value, Raymond Strangways, Bruce L. Rubin, Michael Zugelder

Finance Faculty Publications

The practice of forensic economics has a long history of trying to identify the correct interest rate to use when valuing economic losses in personal injury and wrongful death cases. We trace the legal history as it relates to the appropriate interest rates and adjustments for inflation. We then discuss the use of Treasury Inflation Protected Securities, TIPS, and an analysis of the combined effect of realized inflation and taxes on the effective return. We come to the unexpected conclusion that the use of TIPS does not lend itself to a simple adjustment to the rate for taxes nor eliminate …

You Don’T Know What You’Ve Got Till It’S Gone: Time-Barred Claims Under The Uniform Trust Code, Alan Newman

Akron Law Faculty Publications

In this article, Alan Newman critically examines the statutory limitations that govern when beneficiaries may bring claims against trustees under the Uniform Trust Code (UTC). He analyzes how the UTC attempts to balance the need for finality in trust administration with the protection of beneficiary interests, particularly in light of statutes of limitations and repose. Newman explores the complex procedural and substantive issues surrounding when claims accrue, what constitutes adequate notice to beneficiaries, and how these factors affect whether a claim is time-barred. He raises concerns about beneficiaries losing valid claims without ever realizing their rights have expired, hence the …

Journal Staff

Duke Law Journal

No abstract provided.

Is The White Collar Offender Privileged?, Samuel W. Buell

Duke Law Journal

Much public commentary has asserted or implied that the American criminal-justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not accurate—at least not in the ways commonly believed. Law and practice of sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges in white collar cases easier to bring and harder to defend against than in other cases. Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their exposure …

Interpreting Begay After Sykes: Why Reckless Offenses Should Be Eligible To Qualify As Violent Felonies Under The Acca’S Residual Clause, Cornelia J.B. Gordon

Duke Law Journal

Passed as part of the Armed Career Criminal Act, 18 U.S.C. § 924(e) subjects felons in possession of firearms to a strict mandatory minimum sentence if the offenders have three prior state or federal convictions that qualify as serious drug offenses or violent felonies. A crime qualifies as a violent felony under the residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), if it is one of the enumerated offenses of "burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Current federal circuit court interpretations of the Supreme Court's …

United States V. Carolina: How True Does Truthful Have To Be, Elissa Philip

Vanderbilt Law Review En Banc

No abstract provided.

Banking And The Social Contract, Mehrsa Baradaran

Scholarly Works

This article asserts that there exists today and has always existed an interdependent relationship between banks and the state. I refer to this connection and its mutual benefits and responsibilities as a social contract. When Alexander Hamilton responded to President Washington’s inquiry about the advisability of a national bank, he wrote that “such a Bank is not a mere matter of private property, but a political machine of the greatest importance to the State.” This social contract has existed since the inception of banking in the United States and has been reinforced over time, but it has recently become weakened …

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

The Seminole Way: The Path To The 2011 Reestablishment Of The Seminole Nation Of Oklahoma Tribal Court System, John Haney

Tribal Law Journal

This article will examine the Seminole Nation of Oklahoma’s path from the federal dismantling of the Seminole Nation tribal court system upon the statehood of Oklahoma in 1906 to the Seminole Nation’s reestablishment of its tribal court system in 2011. This article will also explore the Seminole Nation’s methods of integrating tribal tradition and custom into the Seminole tribal court system, and will also present the many challenges that exist in developing an efficient and sustainable tribal justice system. The article will demonstrate that the Seminole Nation’s persisting determination to reestablish its judicial authority stems from the desire to maximize …

A Framework For Understanding Tribal Courts And The Application Of Fundamental Law: Through The Voices Of Scholars In The Field Of Tribal Justice, April L. Wilkinson, Kiowa Tribe Of Oklahoma

Tribal Law Journal

Through an examination of scholarly articles, this paper examines traditional tribal justice systems set in tribal communities in an effort to establish a framework for understanding tribal courts and the unique challenges they face. The research presented describes a spectrum of traditional aspects within tribal courts, and analyzes the impact that changing social dynamics have had on the tribal court construct. A rigorous review of available research concerning traditional tribal courts showed scholars repeatedly arguing that traditional law, also called fundamental law, which existed before Western style courts, exists beyond the tribal court setting and is fundamental to a tribal …

Fond Du Lac Band Of Lake Superior Chippewa V. Frans: An Examination Of State Taxation Of Off-Reservation, Out-Of-State Tribal Member Income, Christopher A. Dodd

Tribal Law Journal

This article analyzes the propriety of state taxation of tribal members’ out-of-state, off-reservation income through a critical examination of Fond du Lac Band of Lac Superior Band of Chippewa v. Frans, 649 F.3d 849 (8th Cir. 2011). The article argues that Judge Murphy’s dissent in the case provided the correct analysis—that state taxation of out-of-state, off-reservation tribal member income is improper when the tribal member resides on tribal land and the only nexus between the state and the taxed income is the tribal member’s state citizenship. The article explains that by granting citizenship to tribal members with the Indian Citizenship …

The Almost-Restatement Of Income Tax Of 1954: When Tax Giants Roamed The Earth, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

The New “Human Equity” Transactions, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In the past year, a number of new financial transactions (such as the Fantex, Upstart and Pave transactions) have emerged that allow individuals to raise funds by offering a percentage interest in their future earnings. Unlike traditional lending arrangements, these structures essentially enable the funding provider to take a percentage of the recipient’s future return on their human capital for a specified time period, effectively getting the upside if earnings are higher and the downside risk if earnings are lower than anticipated. Such transactions represent a significant departure from traditional forms of lending and pose serious questions for the legal …

Childhood Obesity As Child Abuse: Criminalizing Parents For Raising Obese Children, Lizet Dominguez

Child and Family Law Journal

No abstract provided.

Split Decisions In Child Pornography Restitution Cases Further Injure The Victims, Melisa Medina

Child and Family Law Journal

No abstract provided.

Intercountry Adoption As A Solution To The Problem Of The United States Foster Care Children Waiting To Be Adopted, Chelsie Morgan

Child and Family Law Journal

No abstract provided.

What Is The Philosophy Of Law?, John M. Finnis

Journal Articles

The philosophy of law is not separate from but dependent upon ethics and political philosophy, which it extends by that attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which is characteristic of juridical thought for reasons articulated by the philosophy of law. Positivism is legitimate only as a thesis of, or topic within, natural law theory, which adequately incorporates it but remains transparently engaged with the ethical and political issues and challenges both perennial and peculiar to this age. The paper concludes by proposing a task for legal philosophy, in light of the fact that legal systems …

The Clerks Of The Four Horsemen (Part I), Barry Cushman

Journal Articles

The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange …

Politics And The Public’S Right To Know, Lloyd Hitoshi Mayer

Journal Articles

In the United States it is taken for granted that members of the public should have access to information about their government. This access takes many forms, including the ability to obtain copies of government documents, the ability to attend meetings of government officials, and the related obligations of government officials to document their activities and to reveal certain otherwise private information about themselves. This access also is often limited by countervailing concerns, such as the privacy of individual citizens and national security. Nevertheless, the presumption both at the federal level and in every state is to provide such access. …

Symposium: Building The Arc Of Justice: The Life And Legal Thought Of Derrick Bell: Foreword, Matthew H. Charity

Faculty Scholarship

The four articles in this Symposium issue pay tribute to the work of Professor Derrick Bell by building on his challenges to the permanence of racial domination, to the potential limitations of good will inherent in the concept of interest convergence, and to the question of permanence not just of racism, but of other systemic biases since recognized, written on, and litigated. The articles range from the 19th century to the hegemonic war on terror, from Latin identity as a disruptive force, to recognition of subjugated identities allowing for the creation of coalitions to end oppression.

Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay

Faculty Scholarship

No abstract provided.

Country Report On Counterterrorism: United States Of America, Sudha Setty

Faculty Scholarship

The terrorist attacks of September 11, 2001, led to profound changes in societal viewpoints, political agendas, and the legal authorization to combat terrorism. The United States continues to struggle with keeping its population safe while maintaining the principles of democracy and the rule of law essential to the nation’s character. The U.S. response to terrorism has been multifaceted and expansive, reflective of the U.S. role in global security; debate over these matters will continue for the foreseeable future.

This report, prepared for the American Society of Comparative Law, offers summary, analysis and critique of many aspects of counterterrorism law, including …

Federal Equal Protection, Taylor Flynn

Faculty Scholarship

The Author explores the use of due process and equal protection guarantees from the U.S. Constitution as a means to challenge workplace discrimination faced by LGBT government employees. The Author also discusses how private employees must rely on Title VII of the Civil Rights Act to assert similar claims. Because sex discrimination is prohibited under both the Constitution and Title VII, federal courts have relied on reasoning in the former context when analyzing the latter, and vice versa. This means that a watershed case regarding one law can contain reasoning for the other. The Author goes on to the discuss …