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VOLUME 78, Issue 2 (2017)

In Memoriam, Professor Sheldon W. Halpern

This issue of the Ohio State Law Journal serves as a tribute to Professor Sheldon W. Halpern. Read this issue’s special introduction and the collection of essays remembering Professor Halpern’s life and many contributions to the legal community here.

Measuring the Costs and Benefits of Patent Pools

Robert P. Merges & Michael Mattioli

This Article addresses a policy question that has challenged scholars and lawmakers since the 1850s: Do the benefits of patent pools outweigh their potential for consumer harm? This question has special importance today. Patent pools are on the increase due to large numbers of interrelated patents on complex, multi-component technologies such as software and mobile phones. This Article presents the first empirically-based estimate of the transaction costs saved by patent pools. Read the full Article here.

The Vested Rights Doctrine: How a Shield Against Injustice Became a Sword for Opportunistic Developers

Steve P. Calandrillo, Chryssa Deliganis & Christina Elles

In an era of pioneering environmental and land use laws, savvy developers are using the “vested rights” doctrine to circumvent and undermine critical public health, safety, and environmental regulations. In theory, the vested rights doctrine helps minimize these costs by “freezing” the law applicable to a permit application at a certain point in time. Developers are increasingly using the vested rights doctrine as a sword to thwart reasonable regulation instead of as a shield against injustice. It is past time that we restore balance to the vested rights doctrine in order to prevent the best intentions of legislatures and public policy makers from going awry. This Article makes sensible recommendations for policy reform that should be enacted as soon as possible. Read the full Article here.

The Criminal Justice Black Box

Samuel R. Wiseman

“Big data”—the collection and statistical analysis of numerous digital data points—has transformed the commercial and policy realms, changing firms’ understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited. As a result, bulk criminal justice data is largely limited to survey data collected by the Bureau of Justice Statistics. Unlocking the “black box” by uniformly collecting and reporting basic, anonymized data from criminal cases—including, e.g., the charges, pretrial release decision, appointment of counsel, and case disposition—would have significant benefits. This Article documents this problem, explores its causes, and proposes a solution, arguing that the federal government should form a framework for the uniform collection of anonymized local, state, and federal criminal justice data. Read the full Article here.

Cruel Techniques, Unusual Secrets

William W. Berry III & Meghan J. Ryan

In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol. An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment. Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment among three distinct categories of punishment: (1) the type; (2) the method; and (3) the technique. This Article articulates a holistic model for applying the Eighth Amendment on these three levels. Read the full Article here.

Negotiating Around the Equal Pay Act: Use of the “Factor Other than Sex” Defense to Escape Liability

Sabrina L. Brown

Women have struggled to achieve equality with men in American society. From being excluded from fundamental participation in America’s democratic process to lacking access to higher education, American women have faced countless acts of marginalization. Conditions for American women in the workplace have improved, but the wage gap remains substantial. As the wage gap between men and women continues to persist in a meaningful way more than fifty years after the enactment of the Equal Pay Act, it is necessary to evaluate the ways in which the legislation has provided access to the remedies it intended and the ways in which the Act has fallen short. This Note examines the current status of Equal Pay Act litigation and the application of the “factor other than sex” defense to an inherently gendered practice: negotiations in the workplace. Read the full note here.

Institutional Liability for Rape on College Campuses: Reviewing the Options

Leigh Anne S. Newcomer

Universities have long been touted as safe havens for learning. Institutions typically assure students of safety through admissions materials that emphasize a high priority on keeping campuses safe. Yet this serene picture is both misleading and inaccurate, and students may be unaware of the dangers present on campus. Assailants victimize students on campus now at an alarming rate, with a particular trend towards violent crimes such as rape. There has been a nationwide response to this problem, but many issues remain unresolved. This Note will examine several theories of institutional liability, and will evaluate the effectiveness of each one separately in turn. Read the full Note here.

Furthermore Volume 78 (2017)

Scott SurovjakCombatting Harmful Algal Blooms and Saving America's Waterways, 78 Ohio St. L.J. Furthermore 1 (2017).

Aaron StevensonA Growing Consensus: A Comment on United States v. Carpenter, and the U.S. Supreme Court’s Opportunity to Protect Privacy, 78 Ohio St. L.J. Furthermore 13 (2017). Commenting on United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016).

January 1, 2017 marked the start of Furthermore Volume 78. Furthermore Volume 77 can now be found here in the "Furthermore: Previous Issues" section of our website.