Law Commons^™

Changed Science Writs And State Habeas Relief, Valena Beety

Articles by Maurer Faculty

For decades now, the 1996 federal Antiterrorism and Effective Death Penalty Act (AEDPA) has limited the scope and influence of federal courts in post-conviction case review, forcing convicted individuals to rely instead on state habeas proceedings for conviction relief. Due in large part to the 2009 National Academy of Sciences Report, petitions for conviction relief increasingly include challenges to the government’s scientific evidence at trial. These petitions analyze that evidence by comparing the trial evidence to the advancement of scientific findings and scientific knowledge in the years since the trial. State habeas petitions thus provide an avenue for relief from …

Navigating Technology Competence In Transactional Practice, Lori D. Johnson

Scholarly Works

In 2012, the American Bar Association House of Delegates, based on the work of the ABA Commission on Ethics 20/20, amended the Model Rules of Professional Conduct (Model Rules) to include a new requirement concerning lawyer competence. The obligation, enacted as Comment 8 to existing Model Rule 1.1 (outlining a lawyer's requisite competence) (Rule 1.1), requires lawyers "keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." To date, Comment 8 to Rule 1.1 (Comment 8 or the Comment) has been adopted in thirty-eight states, and has begun generating scholarship and …

Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum

Scholarly Works

This Article proceeds in two parts. Part I argues for a dynamic, rather than fixed, conception of access to justice. It then explores how ADR processes, when placed in this dynamic framework, can create new forms of injustice and intensify preexisting ones. Part II presents a case study from the foreclosure crisis to illustrate how the features of ADR processes are especially well suited to respond to dynamic injustices. It further demonstrates how ADR design must evolve to respond to the dynamic system of (in)justice in which ADR processes operate.

Training Law Students To Maintain Civility In Their Law Practices As A Way To Improve Public Discourse, Nancy B. Rapoport

Scholarly Works

Our current social discourse is broken. Not only have we resorted to name-calling instead of reasoned discussion, but we have also resorted to the fundamental attribution error: we attribute bad motives to people with whose positions we disagree rather than starting with the presumption that, perhaps, buried deep within their positions could be a grain of truth. As Yoni Appelbaum observed in a recent article in The Atlantic, "Recent research by political scientists at Vanderbilt University and other institutions has found both Republicans and Democrats distressingly willing to dehumanize members of the opposite party."' We need to find a …

#Metoo Backlash Or Simply Common Sense?: It's Complicated, Ann C. Mcginley

Scholarly Works

This Essay focuses on the skittishness that men express about being accused of sexual harassment. Part II explains the prevalence of sexual harassment and the response to this problem, giving both empirical and anecdotal evidence of male professionals' refusals to spend time with female subordinates. Part III discusses the already-present inequalities in the legal profession, particularly in law firms and raises concerns about how lack of mentoring and sponsorship of women by male supervisors could create an even greater disparity. Part IV analyzes the disparate legal, business, and cultural definitions of sexual harassment, and given the disparities in understandings, raises …

Legal Ethics And Law Reform Advocacy, Jeffrey W. Stempel

Scholarly Works

Social activism, particularly law reform, has long been an accepted, even revered part of the lawyer's identity. However, modern developments such as nation-wide firms, the economic importance of client development, and aggressive attempts by clients to deploy attorneys as de facto, undisclosed lobbyists have put substantial pressure on the traditional vision of the attorney as a "lawyer-statesman" or someone who "checks clients at the door" when participating in law reform activities. Furthermore, law reform activism on behalf of one client (or prospective client when attorneys use their law reform lobbying as part of their marketing strategy) poses a real danger …

Public Art, Public Space, And The Panorama Right, Mary Lafrance

Scholarly Works

When art is installed in public spaces in the United States, the public's right to capture and share images for commercial or noncommercial purposes is not clearly defined by federal copyright law. This has led to both actual and threatened litigation. In the absence of a specific copyright rule designed to address these disputes, they must be resolved under a patchwork of other doctrines that are uncertain in scope, including fair use, de minimis use, and the statutory exception for images of architectural works, but none of these provide predictable results. In contrast, many foreign jurisdictions have enacted 'freedom of …

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 …

Individual Preferences In Policy Analysis: A Normative Framework, Gabriel Weil

Scholarly Works

Measures of individual preferences are a key input in cost-benefit analysis. However, behavioral science has raised questions about the rationality of these preferences. The Nudge thesis relies on that scientific research to prescribe interventions to influence individual choices. However, the more modest step of limiting reliance on these preferences in evaluating non-paternalistic government policies has not been taken up. We lack a consistent theory of when public policy should defer to these preferences, with legal and policy advocates adopting ad hoc result-oriented approaches. I argue that policymakers should be prepared to override individual preferences in cases where their only plausible …

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.