Law Commons^™

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Akron Law Faculty Publications

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering. But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

The Patent Law Origins Of Science Fiction, Camilla Hrdy, Daniel H. Brean

Akron Law Faculty Publications

This Article reveals the surprising role of patent law in shaping the literary genre of science fiction. Drawing on previously unpublished sources, the Article shows that Hugo Gernsback—the so-called “father” of science fiction who started the first all-science-fiction magazine in 1926—believed that works of science fiction are analogous to patents. Like patents, science fiction stories can disclose useful information to the public about new inventions. Like patents, science fiction stories can influence future inventors and drive innovation. Gernsback went even further, positing that some of the inventions depicted in science fiction should themselves be patentable. In 1952, he urged Congress …

Celebrating Michael Reisman: The Inner World Of Others - A Guiding Light For Indigenous Re-Empowerment, Siegfried Wiessner

Intercultural Human Rights Law Review

Michael Reisman is a beacon of light in the firmament of international law and jurisprudence. His retirement from his faculty position at the Yale Law School affords a welcome occasion to celebrate his work in the quest for a world public order of human dignity. Michael is the cherished leader of the New Haven School of Jurisprudence, an intellectual movement designed to combine the prescriptive purposes of the law with the empirical insights of the sciences to achieve the goal of the flourishing of human beings, through access by all to the processes of shaping and sharing all things humans …

Protection Of Cultural Property In Armed Conflict And Military Necessity, Fausto Pocar

Intercultural Human Rights Law Review

The protection of cultural property in armed conflict has been a matter for special consideration by customary and conventional international humanitarian law since its first expressions. The Hague Conventions of 1899 and 1907 already enunciated a principle of protection in this matter, as shown in particular by the Regulations concerning the laws and customs of war on land annexed to the fourth convention, which provided that in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and …

The Promise Of Progressive Prosecution, G Ben Cohen

Akron Law Faculty Publications

This Article focuses on the promise and challenges of progressive prosecution through the lens of the election of Jason R. Williams to Orleans Parish District Attorney’s Office. Orleans Parish was the epicenter of mass incarceration, wrongful convictions, violence, and racism over the last thirty years. The election of Jason Williams as District Attorney in 2021 resulted in policy changes in the Orleans Parish District Attorney’s Office. In the first two years of the administration, incarceration rates dropped by one-third, impacting over one thousand people. Dozens of individuals serving draconian punishments for lowlevel offenses were resentenced. Eighteen individuals were exonerated. But …

Reactive Hypotheticals In Legal Education: Leveraging Ai To Create Interactive Fact Patterns, Sean Steward

Akron Law Faculty Publications

Good legal hypotheticals require carefully constructed scenarios designed to mimic the challenges and dilemmas that students will face in their future legal careers. Hypotheticals help students take abstract concepts such as negligence or res ipsa loquitor and ground them in the reality that these rules were meant to control. Yet, despite our best efforts, creating hypotheticals with a rich tapestry of facts, personalities, and complexities that characterize real-world legal practice remains challenging and time-consuming. Artificial Intelligence (AI) can solve this problem. By leveraging emerging AI technology, legal educators can create richer, more realistic hypotheticals that react to students and keep …

Statement Of Michael Doane Before The Committee On The Judiciary, Subcommittee On Courts, Intellectual Property And The Internet, Michael Doane

Akron Law Faculty Publications

Section 337 provides U.S, intellectual property rights owners unique and effective relief against infringing products imported into the United States. The USITC and the U.S. Court of Appeals for the Federal Circuit have already taken steps to limit the ability of patent trolls to use Section 337 through tightening the domestic industry requirement. Efforts to address purported abuse will ultimately negatively impact those that Section 337 was expressly amended to protect. Amendments to Section 337, therefore, are unnecessary.

State V. Pardoned Individual, 2024-Ohio-2969 (12th Dist.) – Appellant’S Brief, Joann Sahl

Akron Law Faculty Publications

This appellate brief submitted to the Court Of Appeals Twelfth Appellate District Of Ohio argues that the trial court erred in denying the sealing of defendant's pardoned conviction. It contends that an unconditional pardon should entitle the recipient to have the conviction sealed, aligning with the rehabilitative intent of a pardon. The brief emphasizes that denying the sealing undermines the purpose of the pardon and continues to impose collateral consequences on the individual. The appellant seeks a reversal of the trial court's decision, advocating for the sealing of the pardoned conviction to fully restore his rights and reputation

Artificial Intelligence And Ethical Considerations For The New Legal Learner: An Annotated Bibliography, Sarah Starnes

Akron Law Faculty Publications

This annotated bibliography focuses on providing relevant and helpful resources to those who may be new to using artificial intelligence and want to understand the legal and ethical implications. For attorneys to adhere to the Model Rules of Professional Conduct and ethically practice law in conjunction with artificial intelligence, it is vital to learn as much as possible. The articles, cases, advisory opinions, and court rules within this annotated bibliography provide insight into the current state of practicing law with AI.

Beyond Implicit Bias, Thomas Albright, William A. Darity Jr., Diana Dunn Dunn, Rayid Ghani, Deena Hayes-Greene, Tanya K. Hernandez, Sheryl Heron

Faculty Scholarship

In their introduction to this edition of Dædalus, Goodwin Liu and Camara Phyllis Jones write that “it is unlikely that implicit bias can be effectively addressed by cognitive interventions alone, without broader institutional, legal, and structural reforms.” They note that the genesis for the volume was a March 2021 workshop on the science of implicit bias convened by the Committee on Science, Technology, and Law of the National Academies of Sciences, Engineering, and Medicine. That workshop provided an opportunity to demonstrate that implicit bias is a common form of cognitive processing that develops in response to social, cultural, and …

Blue Carbon Law, Adam D. Orford

Scholarly Works

This Article explores the emerging law of blue carbon, defined as rules governing human interventions into Earth’s marine carbon cycles. Blue carbon law is of growing importance today as pressure mounts to incorporate coastal conservation and restoration activities into market-based carbon sequestration schemes, and as the planet’s deep oceans are evaluated for their carbon sequestration potential. The Article conceptualizes two broad trends in blue carbon law: the international law of carbon credit markets creating incentives to commodify and monetize blue carbon resources; and the responsive integration of commodification concepts into existing laws that already manage and influence blue carbon systems. …

National Identity And Economic Development In Market-Dominant Small Jurisdictions, Christopher M. Bruner

Scholarly Works

Small jurisdictions that are globally competitive in providing cross-border financial services—market-dominant small jurisdictions (MDSJs)—occupy fascinating and unique positions in global markets, reflecting the complexity of their linkages with major economies. This article explores how the distinctive features of MDSJs highlight important dimensions of the relationship between national identity and economic development. I review literatures that aim to explain how jurisdictions behave in the economic context, focusing on concepts of nationalism, national identity, and nation branding, and how such phenomena might impact one another. I then assess their application to the relationship between national identity and economic development in MDSJs, where …

Another Round For Petrella V. Mgm, Laches, And Raging Bull: Resolving The Circuit Split Over Copyright’S Statute Of Limitations, David E. Shipley

Scholarly Works

There is a split between the Second Circuit and the Ninth and Eleventh Circuits over the interpretation and application of the Copyright Act’s three-year statute of limitations. The disagreement is about whether it bars a copyright infringement plaintiff from recovering for infringing acts occurring outside the statute’s three-year window. The Second Circuit stated in 2020 in Sohm v. Scholastic that the U.S. Supreme Court explicitly delimited damages to the three years prior to the commencement of an infringement action. However, the Ninth Circuit in Starz Entertainment in 2022 and the Eleventh Circuit Nealy v. Warner Chappell Music in 2023 both …

Gender-Based Violence And Harassment At Sea, Desiree Leclercq

Scholarly Works

This Symposium contribution assesses the ability of international law to evolve to offer essential protections for workers in an increasingly globalized world. It focuses on protections for women seafarers, specifically around gender-based violence and harassment on board vessels. Even though it is the world’s oldest transnational sector, seafaring remains overwhelmingly male-dominated. Consequently, international law was not initially conceived with women seafarers in mind. Now that women have broken into the maritime profession, they count on international law to evolve in kind. Notwithstanding, they continue to face sexist, if not violent, workplaces, and report high incidents of gender-based violence and harassment …

Survey Of Capital Cases In Georgia, Jessica Heywood

Scholarly Works

This Article examines five cases decided during the Survey period: two decisions by the Supreme Court of Georgia and three decisions by federal courts involving Georgia defendants. The Georgia Supreme Court cases are a direct appeal and a habeas appeal. All three federal cases are habeas petitions by Georgia state prisoners. We included federal cases because they involve significant points of law and illustrate the United States Court of Appeals for the Eleventh Circuit’s continued lax oversight of habeas claims, decades after the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) by Congress. The small number of cases …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Human Psychology And Robot Evidence In The Courtroom, Alternative Dispute Resolution, And Agency Proceedings, Sara Sun Beale, Hayley Lawrence

Faculty Scholarship

In human–robot interactions in legal proceedings, human responses to robot-generated evidence will present unique challenges to the accuracy of litigation as well as ancillary goals such as fairness and transparency, though it may also enhance accuracy in other respects. The most important feature of human–robot interactions is the human tendency to anthropomorphize robots, which can generate misleading impressions and be manipulated by designing robots to make them appear more trustworthy and believable. Although robot-generated evidence may also offer unique advantages, there are concerns about the degree to which the traditional methods of testing the accuracy of evidence, particularly cross-examination, will …

The Harlan Court: A Constitutional Alternate History, H. Jefferson Powell

Faculty Scholarship

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and …

Reexamining Enron's Regulatory Consequences, Steven L. Schwarcz

Faculty Scholarship

The downfall of Enron Corporation often epitomizes corporate fraud. One of the world’s fastest growing and most inventive companies, Enron had engaged in a range of complex structured hedging transactions designed to achieve accounting rather than operating results. Its principal motivation, though, was to avoid the risk of incurring financial-statement losses that could impair its credit rating and thereby destroy its primary business of derivatives-based energy trading.

Enron’s management has been criticized for engaging in these structured hedging transactions, and some of its managers were sent to jail. This symposium article concerning “Business and Financial Crimes” attempts to set forth …

False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin

Faculty Scholarship

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

Sieving Silence: The Communal Question And The Archive Of Indian Constitutional History, Kanika Gauba

National Law School Journal

This paper shows how the archive of Indian constitutional history limits access to constitutional disagreement. It attempts an alternative framing of the issue of political safeguards for religious minorities (‘the communal question’) as a triangle of disagreement among the Sikhs, the Anglo‑Indians, and Sardar Vallabhbhai Jhaverbhai Patel. However, the task is complicated by the silence in the official archives on all three actors. If, as critical historians argue, silence is the very condition of the archive and the writing of history, this paper argues that the historian must ‘sieve’ the inevitably silent archives of Indian constitutional history for perturbations, follow …

Sovereignty, International Law, And The Princely States Of Colonial South Asia By Priyasha Saksena (Oxford University Press 2023), Aryan Tulsyan, Prabhash Ranjan

National Law School Journal

Sovereignty, International Law, and the Princely States of Colonial South Asia by Priyasha Saksena is a significant academic intervention into understanding South Asia. The author maps how the various actors—the princely states, the British Crown, the East India Company (the company), and the anti-colonial nationalists—used international law, especially the vernacular of sovereignty, to advance their arguments and achieve their goals during the colonial struggle.

The Supreme Court And The Challenges For Fiscal Federalism: Mineral Area Development Authority V Steel Authority Of India, Sanyukta Chowdhury, Amit Chowdhury

National Law School Journal

This case comment analyses the 2024 Supreme Court judgement in Mineral Area Development Authority v Steel Authority of India, in which the court upheld the states’ power to tax mineral rights and mineral-bearing land. The authors discuss the issues involved, the approach of the bench towards interpretation, and the implications for the parties to the case and other stakeholders. They argue that while fiscal federalism is crucial to India’s constitutional scheme, the bench had limited leeway in deciding the case on this basis due to the absence of legal, doctrinal, and factual clarity.

Singapore’S Emerging Regulatory Approach To Stablecoins, Rachel Phang

Research Collection Yong Pung How School Of Law

The Monetary Authority of Singapore's vision to develop "an innovative and responsible digital asset ecosystem" has placed stablecoins firmly on the regulatory agenda. Stablecoins, as cryptoassets designed to maintain a stable value, are regarded as having the potential to serve as a tenable medium of exchange for the digital asset ecosystem - so long as they are well-regulated and securely backed. Both this vision of a flourishing digital asset ecosystem, as well as the specter of the instability wrought by the recent algorithmic stablecoin collapse, speak to the need for sound regulation of stablecoins. This article therefore seeks to critically …

The Wto Of The Future: Keeping The Wto Digitally Relevant Through The Jsi On E-Commerce, Qiu Xu Liao

Research Collection Yong Pung How School Of Law

Members of the WTO have long regarded e-commerce as an issue of lesser priority. Though seeking to tackle e-commerce issues since 1998 with a Work Programme, progress on enacting WTO law on the matter has remained largely stagnant. To combat two decades of relative inaction, the Joint Statement Initiative on e-commerce was introduced in 2017. Now, within a decade, the JSI has drafted and released a finalised agreement which is now looked towards being integrated into the WTO legal framework. This article explores the history of the JSI, why it has been successful, and how it has overcome previous indifference …

Regulatory Approaches To Consumer Protection In The Financial Sector And Beyond: Towards A Smart Disclosure Regime?, Nydia Remolina, Yvonne Ai-Chi Loh, David Hardoon

International Journal on Consumer Law and Practice

Consumer and data protection policies often focus on consent and information disclosure. The purpose of these regulatory strategies is the protection of consumers by reducing some contracting failures, such as asymmetries of information and a lower bargaining power, especially in transactions involving complex issues such as financial products and sensitive personal data. In the past, regulators have responded to privacy and consumer protection by adopting what this article refers to as an “imperfectly informed regime”, in which consumers do not receive full information about the risks associated with their decisions, even if they are still protected through a variety of …

Exploring The True Shade Of Green: A Critical Examination Of The Central Consumer Protection Authority’S Guidelines On Corporate Greenwashing, Sanya Darakhshan Kishwar, Vasatika Saraswat, Roshni Agarwal

International Journal on Consumer Law and Practice

The Central Consumer Protection Authority in India has recently released draft guidelines to address the issue of greenwashing by corporations. This paper closely examines these guidelines and how they might impact the deceptive environmental practices of some companies. The study contributes to the ongoing discussion about corporate responsibility in India, highlighting the role of regulations in tackling greenwashing and promoting consumer trust. The authors critically comment on the shortcomings of the guidelines, while suggesting recommendations for resolving the same.

Impact Of Social Media Influencers On Consumer Choice: A Case Study Of Reviews By Youtubers, Faisal Fasih

International Journal on Consumer Law and Practice

Consumer participation is vital for businesses, especially in online markets, because potential customers cannot physically check the product. One of the standard options is to watch the review on YouTube, a source of a host of information, including consumer-related products. However, it also provides a fertile ground for disseminating misinformation, including fake reviews of consumer goods, because the contents of the information are unverified. Fake reviews can create information asymmetry, lead to the dismissal of genuine reviews, and ultimately reduce market competition. Therefore, one would have expected that the popularity of YouTube would decrease as a source of information access. …

Empowering Consumer Rights And Community Welfare: Enhancing Corporate Accountability Through A Geographical Indication Licensing Policy, Akriti ., Sarang Sureshrao Khadkekar, Pinaki Ghosh

International Journal on Consumer Law and Practice

Geographical Indications are a unique form of intellectual property that can potentially improve social-economic welfare. The Indian GI Act is based on the concept of consumer welfare, which prevents market activities that can mislead or confuse consumers. Such confusion can be about the source of origin, the quality, or the reputation of the goods. However, several studies have shown the rampant use of GI names by unauthorized persons and Corporations, creating dangers of diluting the reputation of GI names. Such unauthorized use of GI names results in an unfair commercial advantage to these infringers. Not only that, a genuine consumer …