Law Commons^™

The Wall That Aedpa Built: Revisiting The Suspension Clause Challenge To The Antiterrorism And Effective Death Penalty Act, Nathan Nasrallah

Case Western Reserve Law Review

Part I gives background on AEDPA, points out what Section 2254(d)(1) does, explains why AEDPA’s standard of review is problematic, and introduces the Suspension Clause challenge. Part II describes the writ of habeas corpus at common law and observes that there are two versions of habeas’s history, a narrow version and a functionalist version. The functionalist approach is essential to a strong attack on AEDPA. Part III introduces the age-old debate over the writ’s constitutional scope. To formulate the best Suspension Clause challenge to Section 2254(d)(1), a challenger should argue that: (1) the Suspension Clause impliedly guarantees a right, or …

Tribute To Professor Ken Margolis, Peter A. Joy

Case Western Reserve Law Review

No abstract provided.

Tribute To Professor Ken Margolis, Mathew J. Rossman

Case Western Reserve Law Review

No abstract provided.

Thick Marks, Thin Marks, Michael Grynberg

Case Western Reserve Law Review

This conception of thick or thin protection is part of routine trademark disputes, but it has more interesting implications for trademark law. Trademarks do more than identify a product’s source. They embody connotative and abstract meanings over which trademark owners seek control. Traditional trademark doctrine is often ill-suited to resolve the resulting litigation. One way courts respond is by calibrating thickness of protection. Judges receptive to the expansion of trademark rights may grant thick protection; skeptical judges, thin. This shortcut frustrates the development of precedent. Treating a mark as thin, for example, enables courts to resist broad trademark claims without …

Volume 67 Issue 1 (2016), Case Western Reserve Law Review

Case Western Reserve Law Review

No abstract provided.

Vawa 2013’S Right To Appointed Counsel In Tribal Court Proceedings—A Rising Tide That Lifts All Boats Or A Procedural Windfall For Non-Indian Defendants?, Jordon Gross

Case Western Reserve Law Review

No abstract provided.

The Future Of Class-Action Waivers In Consumer Contract Arbitration Agreements After Directv, Inc. V. Imburgia , Kristina Moore

Case Western Reserve Law Review

No abstract provided.

The Danger Zone: How The Dangerousness Standard In Civil Commitment Proceedings Harms People With Serious Mental Illness, Sara Gordon

Case Western Reserve Law Review

Almost every American state allows civil commitment upon a finding that a person, as a result of mental illness, is gravely disabled and unable to meet their basic needs for food and shelter. Yet in spite of these statutes, most psychiatrists and courts will not commit an individual until they are found to pose a danger to themselves or others. All people have certain rights to be free from unwanted medical treatment, but for people with serious mental illness, those civil liberties are an abstraction, safeguarded for them by a system that is not otherwise ensuring access to shelter and …

An Idea Of Authorship: Orson Welles, The War Of The Worlds Copyright, And Why We Should Recognize Idea-Contributors As Joint Authors, Timothy J. Mcfarlin

Case Western Reserve Law Review

Did Orson Welles co-author the infamous War of the Worlds broadcast? The Ninth Circuit Court of Appeals has told us no, primarily because he only contributed the idea behind the broadcast, and ideas alone can’t be copyrighted. “An Idea of Authorship” challenges this premise—that ideas, no matter how significant, cannot qualify for joint authorship in collaborative works—and argues that we as a society should, under certain circumstances, recognize idea-contributors like Welles as joint authors. We should do so to further our society’s interest in encouraging future creations, as well as out of a sense of equity and fairness to idea-contributors, …

Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy, Jonathan Blanks

Case Western Reserve Law Review

Whren v. United States clarified the Supreme Court’s support of the practice of pretextual stops—using minor traffic violations as a reason to stop a person in order to investigate suspicious activity. However, a tactic’s legality does not make it inherently ethical, just, or effective. The following essay considers the role of pretextual stops in relation to police departments’ relationship with minority communities, particularly black communities. I argue that pretextual stops are one part of a larger and deeply troubling mélange of legal fictions, intentional deception of the innocent, and perverse incentives that undermine the perceptions of legitimacy of law enforcement, …

Whren'S Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.

Case Western Reserve Law Review

I want to talk very briefly about some of the flaws in Whren as a matter of constitutional history, doctrine, and social psychology. Those issues have been discussed throughout this symposium, so I will only touch upon them briefly. I will then discuss some legal developments in equal protection doctrine post-Whren. Finally, I will suggest a possible path forward. A great deal of my scholarship over the years has been in the field of the Thirteenth Amendment. I will, therefore, suggest that we can reconceptualize racially motivated, pretextual police encounters as a Thirteenth Amendment issue rather than as either a …

Interrupting The Blight Cycle: Managing The Future Of Properties In Tax Foreclosure Sales Through Pre- And Post-Sale Initiatives, Ellen Kirtner

Case Western Reserve Law Review

This Note will examine the Wayne County’s novel use of a reverter plan in its postauction tactics, along with its preauction tactics, to suggest when and how other local governments may successfully apply similar programs to their own problems with blight and delinquency following tax auctions. This Note will also consider from a practical, policy perspective whether reverter programs are actually the best choice for local governments struggling with vacant, blighted, and tax delinquent properties. Because Wayne County took such a drastic measure to combat tax delinquency and blight in such an accelerated process, this Note focuses on the economic …

Volume 67 Issue 1 (2016), Case Western Reserve Law Review

Case Western Reserve Law Review

No abstract provided.

Masthead, Volume 67 Issue 1 (2016)

Case Western Reserve Law Review

No abstract provided.

The Beast Of Burden In Immigration Bond Hearings, Mary Holper

Case Western Reserve Law Review

No abstract provided.

"Other Than Honorable" Discrimination, Marcy L. Karin

Case Western Reserve Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most comprehensive federal civil rights law that exists related to the workplace. Its goal is to help people who serve in the military reintegrate back into civilian work and remain attached to the workforce. It does so by offering a mix of anti-discrimination protection and labor standards. Despite the promise of robust reemployment rights and post-service assistance, Congress has excluded people with a certain “character of service,” including those with “other than honorable” separations, from these protections. This statutory exclusion has a disparate impact on people with service-connected disabilities, …

Growing Jardines: Expanding Protections Against Warrantless Dog Sniffs To Multiunit Dwellings, Eric Connon

Case Western Reserve Law Review

No abstract provided.

Braking The Rules: Why State Courts Should Not Replicate Amendments To The Federal Rules Of Civil Procedure, Stephen N. Subrin, Thomas O. Main

Case Western Reserve Law Review

No abstract provided.

The Economic/Noneconomic Activity Distinction Under The Commerce Clause, David M. Driesen

Case Western Reserve Law Review

No abstract provided.

The Third Amendment Incorporated: “Soldiers” And Domestic Law Enforcement, Chad Aronson

Case Western Reserve Law Review

No abstract provided.

Personhood Amendments After Whole Woman’S Health V. Hellerstedt, Steven R. Morrison

Case Western Reserve Law Review

Over the past six years, pro-life advocates have used Targeted Regulation of Abortion Provider (TRAP) laws and state-level constitutional personhood amendments to end abortion. The United States Supreme Court’s recent opinion in Whole Woman’s Health v. Hellerstedt suggests that the TRAP strategy will give way to a greater push for personhood amendments. This is so for three reasons. First, Whole Woman’s Health undermined the woman’s-health basis for TRAP laws and may encourage advocates to refocus their efforts on fetal rights. Second, Whole Woman’s Health limited the types of statutes that can survive judicial scrutiny, but left constitutional amendments untouched. Third, …

Masthead, Volume 67 Issue 2 (2016)

Case Western Reserve Law Review

No abstract provided.

The New Retail Experience And Its Unaddressed Privacy Concerns: How Rfid And Mobile Location Analytics Are Collecting Customer Information, Ava Farshidi

Journal of Law, Technology, & the Internet

"Part I of this paper will look at the newest development of the retail experience and suggest a method to understand the privacy concerns as well as suggest a regulatory scheme to protect customers without inhibiting their shopping experience. Part II will provide a background of the three stages of shopping experiences and the evolution of privacy concerns associated with them. Part III will address the current American stance on data collection and privacy law with a particular look at privacy concerns that the eStore is facing. Finally, Part IV will provide guidance on how to deal with these data …

Volume 7 Issue 1 (2016), Case Western Reserve Journal Of Law, Technology & The Internet

Journal of Law, Technology, & the Internet

No abstract provided.

When Real People Become Fictional: The Collision Of Trademark, Copyright, And Publicity Rights In Online Stories About Celebrities, Stacey M. Lantagne

Journal of Law, Technology, & the Internet

"Fanficion is frequently defined as the writing of fiction involving the characters or setting of someone else’s creation. However, there is a subset of fanfiction that is known as Real Person Fiction, or RPF. This subset writes stories not about other people’s fictional creations but about real people, whether they be hockey players or movie stars, and it has long been the scene of heated debate in the fan community. Some fans who readily and enthusiastically engage with fanfiction draw strict “squick” lines about RPF and call it “creepy” and “disturbing.” "Perhaps for this reason, scholars have paid little attention …

Hashing It Out: Problems And Solutions Concerning Cryptocurrency Used As Article 9 Collateral, Timothy Bierer

Journal of Law, Technology, & the Internet

"The article analyzes the potential uses of cryptocurrency as collateral in Article 9 secured transactions. At present, there is no clear guidance as to what status, if any, cryptocurrency has as collateral under Article 9. This paper briefly defines cryptocurrency, explains how it functions in its various forms, and shows why it would behoove lenders to utilize cryptocurrency as collateral. The current regulatory efforts over cryptocurrency are discussed to provide some context, through which the proposed actions and revisions of Article 9 are viewed. Finally, this paper recommends how cryptocurrency can be used as collateral under Article 9 under the …

Friend Request Denied: Judicial Ethics And Social Media, Shaziah Singh

Journal of Law, Technology, & the Internet

"Social media sites such as Facebook, Twitter, and LinkedIn have revolutionized our social lives and dominate the way we communicate with each other. Whether it comes to personal or professional use, social media platforms come with a multitude of complications. What to post, whom to “friend,” whom to share information with, and what job updates to share are just some of the problems social media users face daily. These complications are only multiplied for judges. A judge’s unique position to influence makes what constitutes acceptable social media usage much more complex. With almost 1.5 billion users on Facebook and 300 …

From Nuremberg To Kenya: Compiling The Evidence For International Criminal Prosecutions, Jennifer Stanley

Vanderbilt Journal of Transnational Law

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to …

Using International Property Law As A Lever To Evolve Toward Integrative Ocean Governance, Rachael E. Salcido

McGeorge School of Law Scholarly Articles

TABLE OF CONTENTS I. INTRODUCTION .............................................................................................. 254 II. BACKGROUND ............................................................................................... 255 A. Brief Primer on Ocean Jurisdiction ...................................................... 256 B. Dispute Resolution and International Governance ............................... 257 C. The Power of Property .......................................................................... 259 D. Ocean Governance Support for an International Property Law Thesis ..................................................................................................... 260 III. STATE OF OCEAN HEALTH ........................................................................... 261 A. Overfishing ............................................................................................ 262 B. Climate Change ..................................................................................... 263 C. Pollution ................................................................................................ 264 1. Traditional Pollution ...................................................................... 264 2. Special Growing Plastic Pollution Problem ................................... 265 D. Industrialization .................................................................................... 265 1. Marine Renewable Energy .............................................................. 266 2. Aquaculture ..................................................................................... 268 3. Offshore Oil and Gas ...................................................................... 268 …

Ditching Our Innocence: The Clean Water Act In The Age Of The Anthropocene, Rachael Salcido, Karrigan Bork

McGeorge School of Law Scholarly Articles

Humanity has entered the Age of the Anthropocene, a geologic era marked by the emergence of human activity as the single most dominant influence on Earth’s environment. Every ecosystem shows

signs of anthropogenic influence, and the environments we experience everyday are often shaped almost entirely by human actions and decisions. The new discipline of reconciliation ecology recognizes this

reality and suggests that we must manage the new habitats we create in order to protect species diversity and ecosystem services. But the 2015 rule defining the jurisdiction of the Clean Water Act explicitly excludes

many manmade environments, including many artificial lakes, …