Law Commons^™

Cruzan And Surrogate Decision-Making, David Orentlicher

Scholarly Works

When the U.S. Supreme Court issued its landmark “right to die” decision in Cruzan v. Director, Missouri Department of Health thirty years ago, the dissenting Justices and many observers criticized the Court for rejecting a right of Nancy Cruzan’s parents to refuse medical care on her behalf. Ms. Cruzan had not written a living will or a durable power of attorney, nor did it appear that she had left clear oral instructions about her wishes. But she did have loving parents who were dedicated to doing what was best for her. Nevertheless, according to the Cruzan Court, “If the State …

Adversarial Failure, Benjamin P. Edwards

Scholarly Works

Investors, industry firms, and regulators all rely on vital public records to assess risk and evaluate securities industry personnel. Despite the information's importance, an arbitration-facilitated expungement process now regularly deletes these public records. Often, these arbitrations recommend that public information be deleted without any true adversary ever providing any critical scrutiny to the requests. In essence, poorly informed arbitrators facilitate removing public information out of public databases. Interventions aimed at surfacing information may yield better informed decisions. Although similar problems have emerged in other contexts when adversarial systems break down, the expungement process to purge information about financial professionals provides …

Invisible Prisons, M. Eve Hanan

Scholarly Works

Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration. While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing. This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.

This Article is the first scholarly work …

Targeting Factors And Conflict Of Laws On The Internet, Marketa Trimble

Scholarly Works

Courts have employed the concept of "targeting" to limit the reach of personal jurisdiction and applicable law on the Internet. To determine whether a defendant has targeted a particular country or state-and whether the defendant should be subject to the jurisdiction of and law in that country or state-courts consider various factors, such as the language, the top-level domain, and the currency used by the defendant on the Internet. However, developments in Internet technology and increasing Internet actor and user sophistication put the significance of the factors into question. In the absence of a defendant's express limitation on the territorial …

Foreword: The Labor Constitution In 2020, Ruben J. Garcia

Scholarly Works

No abstract provided.

Building Worker Collective Action Through Technology, Ruben J. Garcia

Scholarly Works

The COVID-19 pandemic has exacerbated the inequality between workers and their employers, and decreased worker power over their terms and conditions of employment. At the same time, the workers are more dispersed than ever, with more employers disestablishing the traditional office in favor of a hybrid model that further atomizes workers and makes collective action harder. At the same time, the ability for workers to organize themselves on social media and on company e-mail systems has been limited by recent decisions of the National Labor Relations Board (NLRB), and are always subject to possible employer discovery and retaliation. New technologies …

Foreign Corruption As Market Manipulation, Gina-Gail S. Fletcher

Articles by Maurer Faculty

On March 6, 2019, the Commodity Futures Trading Commission (CFTC) announced that it would be taking an active role in prosecuting violations of the Commodities Exchange Act (CEA) that involve foreign corruption.[11 On the same date, the CFTC published an enforcement advisory further signaling its intention to investigate and prosecute violations of the laws and regulations of the CEA linked to foreign corrupt practices, such as violations of the Foreign Corrupt Practices Act (FCPA). The FCPA prohibits US-based businesses from engaging in corrupt practices, such as bribery, in foreign countries in which they do business. Currently, both the Department of …

The Debt Collection Pandemic, Pamela Foohey, Dalie Jimenez, Chris Odinet

Articles by Maurer Faculty

To curb the rapid spread of the coronavirus set to overwhelm the United States' healthcare system, in mid-March 2020, the federal government declared a national emergency. Many states followed suit by implementing shelter-at-home orders and people began social distancing across America. As of this writing, the United States' reaction to the unique and alarming threat of COVID 19 has partially succeeded in slowing the virus's spread. Saving people's lives, however, has come at a severe economic cost. Economic activity plummeted. Unemployment numbers soured to figures not seen since the Great Depression and countless other people saw their income disappear.

Americans' …

Do Founders Control Start-Up Firms That Go Public?, Brian Broughman, Jesse M. Fried

Articles by Maurer Faculty

Black & Gilson (1998) argue that an IPO-welcoming stock market stimulates venture deals by enabling VCs to give founders a valuable "call option on control." We study 18,000 startups to investigate the value of this option. Among firms that reach IPO, 60% of founders are no longer CEO. With little voting power, only half of the others survive three years as CEO. At initial VC financing, the probability of getting real control of a public firm for three years is 0.4%. Our results shed light on control evolution in startups, and cast doubt on the plausibility of the call-option theory …

Doing Unrepresented Status: The Social Construction And Production Of Pro Se Persons, Victor D. Quintanilla

Articles by Maurer Faculty

In this Article, I propose an understanding of the dynamic process through which society does unrepresented status that is informed by psychological and sociological research. In describing this doing of unrepresented status, I elaborate on two new concepts: the social construction of pro se status and the social production of unrepresented persons. These concepts illuminate ways in which the doing of unrepresented status is a routine, recurring feature in how court officials, lawyers, and law-trained persons perceive and interact with unrepresented persons within our civil justice system. That is, a pro se party is not something that an unrepresented person …

The Hidden Value Of Abandoned Applications To The Patent System, Christopher A. Cotropia, David L. Schwartz

Law Faculty Publications

Some inventors abandon their patent applications without ever receiving a patent. Although patent scholars view such abandoned applications as essentially worthless, we question that conventional wisdom. In conducting an empirical analysis of a recently released patent application dataset (in light of a 1999 change requiring publication of most abandoned applications), we find that the United States Patent and Trademark Office (USPTO) often uses abandoned applications as prior art when examining future patent applications. Abandoned applications thus generate an administrative disclosure that prevents the issuance of broader patent rights to later applicants. By narrowing the scope of new patents, abandoned applications …

Memories Of Judgment: Constructing The Icty's Legacies, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

As the title of this symposium reflects, a critically important dimension of the Tribunal's legacy is its role in understanding the war and genocide in Bosnia. In my remarks, I want to drill down on the word "understanding," one of the most complex facets of the ICTY's legacy. In brief, I will make four points. The first is that the ICTY's expected contribution to understanding the 1990s conflict in Bosnia and the atrocities associated with that conflict was deeply important to many individuals whom I have interviewed in Bosnia-Herzegovina, as well as in Serbia, about the ICTY's impact in their …

Preventing Trafficking Through New Global Governance, Janie Chuang

Scholarly Articles in Law Reviews & Journals

The year 2020 marks the twentieth anniversary of the United Nations (U.N.) Trafficking Protocol-a treaty that established the foundation for global efforts to address the problem of human trafficking.' That treaty offered an early framing of the problem as a transnational crime, best addressed through aggressive prosecution of traffickers and international cooperation to that end. Since the Protocol's adoption, global antitrafficking law and policy have evolved significantly. The once near-exclusive focus on the prosecution prong of the treaty's "3Ps" approach to trafficking- focused on prosecuting trafficking, protecting trafficked persons, and preventing trafficking-has given way to an increased emphasis on victim …

Access To Justice For Victims Of Conflict-Related Sexual Violence, Claudia Martin, Susana Sácouto, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

Despite persistent impunity for conflict-related sexual violence, there have been a limited number of significant cases holding perpetrators accountable within national justice systems. One of these cases is the Sepur Zarco case, in which two former military members were accused of committing acts of sexual violence, sexual slavery and domestic slavery near a military outpost in Sepur Zarco during the civil war in Guatemala. In a landmark verdict issued in February 2016, a Guatemalan court convicted the two accused, marking the first time a Guatemalan court has convicted former military members for acts of sexual violence committed in the context …

Symposium: A Bold Agenda For The Next Steps In Health Reform: Introduction, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Transnational Government Hacking, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Lawyering Peace: Infusing Accountability Into The Peace Negotiations Process, Paul Williams

Scholarly Articles in Law Reviews & Journals

On August 28, 2019, Dr. Paul R. Williams delivered the Bruce J. Klatsky Endowed Lecture on Human Rights at Case Western Reserve University School of Law. This article, based on his lecture, examines how justice has repeatedly found a foothold in peace processes, and how the international community can continue to work towards embedding accountability into peace processes to achieve durable peace. This article traces the arc of accountability in peace processes, from an era of impunity and a period of stepping stones moments, to today’s uncertain moment for post-conflict accountability and justice mechanisms. The author argues that comprehensive transitional …

Documentation For Accountability, Paul Williams, Jessica Levy

Scholarly Articles in Law Reviews & Journals

The cost of armed conflict is borne not only in the stark number of lives lost, but also in the grave atrocity crimes committed during these periods. Despite the legal protections set forth in the Geneva Conventions and other foundational documents of international humanitarian law, perpetrators continue to commit crimes against humanity, war crimes and genocide. Documenting these atrocity crimes has become a crucial step in efforts to secure justice for victims and survivors of these atrocities. To support the expanding field of human rights documentation, the international community must redouble its efforts to ensure that civil society actors engaged …

Citizen Soldiers And The Foundation Fusion Of Masculinity, Citizenship, And Military Service, Jamie Abrams, Nickole Durbin

Scholarly Articles in Law Reviews & Journals

Sarah Livingston Jay famously toasted revelers in 1783: "May all our citizens be soldiers, and all our soldiers citizens." This toast conveyed "a foundational fusion" within our republican government tradition-coupling military service, citizenship, and masculinities.' The Akron Law School's conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration.

In …

Race, Space And Democracy: Locally-Based Strategies For Development - Panel Discussion From Fourth National People Of Color Legal Scholarship Conference, Hosted At The American University Washington College Of Law, Ezra Rosser, Audrey Mcfarlane, Erika Wilson, Michele Alexander

Scholarly Articles in Law Reviews & Journals

Panel Discussion from Fourth National People of Color Legal Scholarship Conference, Hosted at the American University Washington College of Law:

[Audrey McFarlane] Alright, good morning everyone, thank you for joining us. This is the race, space, and democracy panel, locally based strategies for

development. Right now we have with us, me. I'm Audrey McFarlane. I'm a professor at the University of Baltimore. We also have Erika Wilson, who is a professor at the University of North Carolina. I'm going to dispense with the long bios, and commend you to the program guide for the long bios. Suffice it to say, …

Publicly Charged: A Critical Examination Of Immigrant Public Benefit Restrictions, Cori Alonso-Yoder

Scholarly Articles in Law Reviews & Journals

Since the early days of the Trump Administration, reports of the President’s controversial and dramatic immigration policies have dominated the news. Yet, despite the intensity of this coverage, an immigration policy with far broader implications for millions of immigrants and their U.S.- citizen family members has dodged the same media glare. By expanding the definition of who constitutes a “public charge” under immigration law, the Administration has begun a process to restrict legal immigration and chill the use of welfare benefits around the country. The doctrine of public charge exclusion developed from colonial times and has reemerged in Trump Administration …

Making The Second Pandemic: The Eviction Tsunami, Small Landlords, And The Preservation Of “Naturally Occurring Affordable Housing", Susan Bennett

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Balkanization Of Data Privacy Regulation, Fernanda Giorgia Nicola Dr.

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Sea Change: The Rising Tide Of Pro Bono Legal Services For The Creative Community, Victoria Phillips

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Untangling The Yemen Crisis, Paul Williams, Laura Graham, Jim Johnson, Michael P. Scharf, Milena Sterio

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Rohingya Genocide, Paul Williams, Todd F. Buchwald, Jenny Domino, Rebecca Hamilton, Michael P. Scharf, Meilena Sterio

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Lost Unfair Competition Law, Christine Farley

Scholarly Articles in Law Reviews & Journals

The accepted metaphor that trademark law is a species of the genus of unfair competition law distorts both the actual history and the relationship between the two. Tracing the development of the law reveals a related sequence of significant events, some of which have been forgotten. This back-story suggests that a particularly innovative treaty incorporated by reference into the Lanham Act was meant to be the vehicle for unfair competition protection. As a result of this lost law, unfair competition law remains an enigma today.

Outsourcing Discrimination, Llezlie Green

Scholarly Articles in Law Reviews & Journals

The significant growth in employers’ use of labor intermediaries—that is, third parties that stand between the workers and the organizations for whom they complete work— has fundamentally changed how many low-wage workers enter and function in the workplace. Temporary staffing agencies that hire and place workers with companies and organizations have taken on a gatekeeper role to low-wage jobs in many industries. Recent litigation and various reports allege flagrant hiring discrimination by temporary staffing agencies whose clients encourage them not to hire African American workers and hire and send Latinx immigrants instead. This Article explores the discriminatory treatment of low-wage …

Contextual Accountability, The World Bank Inspection Panel, And The Transformation Of International Law In Edith Brown Weiss' "Kaleidoscopic World", David Hunter

Scholarly Articles in Law Reviews & Journals

No abstract provided.