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 …

In Good Conscience: Expressions Of Judicial Conscience In Federal Appellate Opinions, Sarah M. R. Cravens

Akron Law Faculty Publications

This article explores judicial references to what judges may or may not do, in their own words, “in good conscience.” It assesses the most common situations in which federal appellate judges use this term and it discusses the propriety of different uses and placements of those expressions of conscientious commitments that play into judicial decisionmaking. It distinguishes between expressions of primarily institutional conscience (that is, the commitment to certain institutional values, responsibilities, or limitations on what the judge may do) and expressions of primarily personal conscience (that is, the commitment to the individual values or beliefs of the judge who …

Impartiality: Balancing Personal And Professional Integrity In Judicial Decisionmaking, Sarah M. R. Cravens

Akron Law Faculty Publications

No abstract provided.

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Akron Law Faculty Publications

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

State Action Doctrine And The Principle Of Democratic Choice, Wilson R. Huhn

Akron Law Faculty Publications

The state action doctrine is somewhat of a mystery to law students, legal scholars, lawyers, and judges. It is a key component of the Fourteenth Amendment--a threshold requirement that must be satisfied before triggering protection of our fundamental rights--but the doctrine itself seems to be curiously without purpose, a collection of arbitrary rules that impede constitutional protection of liberty, equality, and fairness for no good reason. Nearly forty years ago, Professor Charles Black called the state action doctrine “a conceptual disaster area” and characterized scholarly commentary upon it as “a torchless search for a way out of a damp echoing …

Ohio Issue 1 Is Unconstitutional, Wilson R. Huhn

Akron Law Faculty Publications

This article discusses the constitutionality of Ohio Issue 1, an amendment to the state constitution that was adopted in a referendum by the people of the State of Ohio in November, 2004. The article consists of two parts. Part I sets forth arguments in support of the proposition that Ohio Issue 1 is unconstitutional. Part II sets forth arguments that have been or may be raised in support of Ohio Issue 1, and responds to each of those arguments.

Jurisprudential Revolution Unlocking Human Potential In Lawrence And Grutter, Wilson R. Huhn

Akron Law Faculty Publications

The decisions of the Supreme Court in Lawrence v. Texas and Grutter v. Bollinger, stripped to their bare holdings, have little immediate effect on existing law. After Grutter, colleges and graduate schools will continue to take race into account in admitting students to enroll a diverse student body, just as they have done for the past quarter century in conformity with Justice Lewis Powell's opinion in Regents of the University of California v. Bakke. After Lawrence, laws against gay sex may no longer be enforced, but only a handful of states still had these laws on the books at the …

Scienter, Causation, And Harm: The Right-Hand Side Of The Constitutional Calculus, Wilson R. Huhn

Akron Law Faculty Publications

But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.

Laws that infringe on freedom of expression, like all prohibitory laws, are enacted to prevent harm from occurring. The Supreme Court has refused to confer absolute protection upon freedom of expression, a position that would render all laws restricting expression unconstitutional. Instead, to determine the constitutionality of laws restricting expression, the Court has …

Direct Shipment Of Wine, The Dormant Commerce Clause And The Twenty-First Amendment: A Call For Legislative Reform, Lloyd C. Anderson

Akron Law Faculty Publications

Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional.

‘Twas not always so. …

Random Vs. Suspicion-Based Drug Testing In The Public Schools -- A Surprising Civil Liberties Dilemma, Martin H. Belsky

Akron Law Faculty Publications

The Tecumseh School District had a policy that all students who wished to participate in extracurricular activities that involved some sort of competition had to agree to drug testing before the competition and then randomly thereafter. ... Those selected for accusatory drug testing might be perceived to be wearing a "badge of shame" and be subject to the arbitrary whim of an administrator. ... Vernonia involved a rule requiring drug testing as a condition for participation in extracurricular competitive sports. ... In Earls, the Tecumseh School District adopted a "Student Activities Drug Testing Policy" that required all students who wished …

Living With Miranda: A Reply To Professor Grano, Martin H. Belsky

Akron Law Faculty Publications

Ten years ago, I wrote a review-Whither Miranda -of Liva Baker's book, Miranda: Crime, Law & Politics. In that article, I suggested that Miranda v. Arizona actually has had little impact on the day-to-day operations of the police or other investigative agencies. Interviews, questioning, and interrogations are conducted almost exactly as they had been before Miranda, except for the addition of warning cards in formal settings.

In addition, I argued Miranda's value as a legal precedent has been minimal. “Today, in almost all the cases involving admissions, the essential issue is voluntariness, the same issue stressed before Miranda. The only …

The Public Trust Doctrine: The Public Trust Doctrine And Takings: A Post-Lucas View, Martin H. Belsky

Akron Law Faculty Publications

During the last five years, the United States Supreme Court has evolved a new "takings" doctrine. Starting with Nollan v. California Coastal Commission and then most recently in Lucas v. South Carolina Coastal Council, the Court has sent a clear message to land-use regulators. General regulatory control over land-use will now be carefully scrutinized. If a type of land-use is barred or substantially restricted, it will be found to be a "taking" requiring compensation, unless such controls can be justified as based on historic common law principles of property law. This Article will review the evolution of this new doctrine …

Review Essay On Becoming And Being A Prosecutor, Martin H. Belsky

Akron Law Faculty Publications

A prosecutor is a detective, a litigator, a manager, and a policymaker. He is responsible for investigating illegalities' and is permitted to use specially assigned tools-a grand jury or subpoena-to acquire information and evidence. As a litigator, he is counsel for an artificial client-the government or people-but also the representa- tive of identifiable victims. Moreover, though he functions in an adversary system, he must temper his advocacy and zeal. His goal is not merely to "win," but also to see that "justice is done."

The prosecutor must manage an increasing set of responsibilities in a complex and often arbitrary system, …

Diplomatic Immunity-Jurisdiction-Adequacy Of Service By Mail On Foreign Government Agency: Petrol Shipping Corp. V. Kingdom Of Greece, Ministry Of Commerce, Purchase Directorate (2d Cir. 1966), Martin Belsky

Akron Law Faculty Publications

Casenote: Petrol Shipping Corp. v. Kingdom of Greece, Ministry of Commerce, Purchase Directorate, 360 F.2d 103 (2d Cir. 1966).