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Upcoming Events

Tuesday, March 31, 2015
12:00 PM - 1:20 PM
Saxbe Auditorium

Deboer v. Snyder: a Preview of the Seminal Marriage Equality Case

Furthermore

Featured Essays & Responses

Gambling for Health Care

By Jack L. Millman

Gamble. Win a little. Maybe lose a little more. Obtain free health insurance? It is an absurd tax planning technique that should actually work—at least in theory. And, it perfectly illustrates the nonsensical system now in place in the states that have refused to expand Medicaid coverage as envisioned when the Affordable Care Act was enacted. . . . Read More

Let’s Pretend that Federal Courts Aren’t Hostile to Discrimination Claims

By Marcia L. McCormick, in response to Sandra Sperino, Let’s Pretend Discrimination Is a Tort

This response essay applauds Professor Sperino’s work in this area, her suggestion of a silver lining in a problematic trend, and the roadmap she lays out for a more positive trajectory. At the same time, I worry that she is unlikely to succeed because the actors she relies upon to effect the changes she projects are unwilling to do so. . . . Read More

What Is Even More Troubling About the “Tortification” of Employment Discrimination Law

By Alex B. Long

Earlier in my career, I viewed myself primarily as an employment law scholar. Over time, I have come to think of myself less as an employment law person and more of a Torts and Professional Responsibility person. There are lots of reasons for that, but one is that I simply became frustrated with discrimination law. . . . Read More

The Six Sides of Federalism in North Carolina Board of Dental Examiners v. FTC 

By James R. Saywell

States all over the country regulate using agencies made up of . . . well, real people. And these regulators often participate in the market they regulate. North Carolina, for instance, uses practicing dentists to regulate the dental market; elsewhere, states charge practicing lawyers with regulating the practice of law, and neurologists with regulating neurology. This practice creates a potential problem: the two-hatted private/public individuals may regulate the market to further their own interests rather than the market’s interests, which violates the antitrust laws. . . . Read more

Does the Legal Standard Matter? Empirical Answers to Justice Kennedy’s Questions in Nken v. Holder

By Christopher J. Walker, in response to Fatma Marouf, Michael Kagan & Rebecca Gill, Justice on the Fly: The Danger of Errant Deportation
In Justice on the Fly: The Danger of Errant Deportations, Professors Fatma Marouf, Michael Kagan, and Rebecca Gill take on the ambitious task of 
answering the empirical questions posed by Justice Kennedy and others in Nken v. Holder with respect to the proper legal standard for judicial stays of removal in the immigration adjudication context. To answer these questions, the authors review, code, and analyze 1,646 cases in all circuits that hear immigration appeals and reveal stark differences in stay-of-removal practices and outcomes among the federal courts of appeals. . . . Read more
 

Immigration Law’s New Frontiers

By Shruti Rana, in response to Stella Burch Elias, The New Immigration Federalism
In the complex, politically charged, and constantly shifting landscape of  immigration reform, Stella Elias’s The New Immigration Federalism provides an incisive analysis of a largely unrecognized ramification of the Supreme Court’s recent opinions in Arizona v. United States (2012)1 and Chamber of Commerce v. Whiting (2011).2 . . . Read More
 

A Public Domain Approach to Free and Open Source Software?

By Greg R. Vetter, in response to Clark D. Asay, A Case for the Public Domain

While other scholars have described the need to reduce non-beneficial anticommons effects in the scattershot licensing approach currently supporting free and open source software (FOSS),1 Professor Clark Asay’s article, A Case for the Public Domain,2 while somewhat focused on open-innovation communities more generally, comprehensively details these effects and their costs. His critique of the transaction costs and other issues relating to vivacity within development groups and corporate use of FOSS provides a unique contribution to the literature.3 . . . Read More

Hydraulic Fracturing and Information Forcing

By Hannah J. Wiseman

The recent, dramatic rise of drilling and hydraulic fracturing for domestic
oil and natural gas has highlighted the fact that the United States remains, in
certain regions, an industrial economy. In states like North Dakota, there were more active wells in 2012 than ever before in the state’s history.1 Two
practices are driving this boom in many areas of the United States: horizontal
drilling through shales and tight sandstones and the use of slickwater hydraulic fracturing—the pumping of large quantities of water and smaller quantities of chemicals down wells at high pressures.2 . . . Read More

Hydraulic Fracturing Contamination Claims: Problems of Proof

By Keith B. Hall

Hydraulic fracturing is controversial. Many people believe that hydraulic fracturing has caused contamination of groundwater and that the process should be prohibited because it is likely to cause additional contamination if it continues to be used. Many other people believe that hydraulic fracturing has not caused contamination and that little additional regulation is needed because fracturing is a useful process that poses little risk. Notably, this disagreement is not merely a difference of opinion regarding how society should balance economic development and environmental protection. Instead, the disagreement concerns facts—whether fracturing already has caused contamination and how much risk the process entails. . . . Read More

Ohio Oil and Gas Litigation in the New Fracking Era

By Blake A. Watson

There is a new era of oil and gas exploration in Ohio: the horizontal “fracking” era. Although the hydraulic fracturing process has been utilized for decades,1 the recent development of horizontal drilling methods has enabled companies to extract oil and gas from the Marcellus and Utica deep shale formations. Horizontal hydraulic fracturing has substantially changed oil and gas drilling in eastern Ohio, as evident by the following statements taken from a complaint filed by landowners in Columbiana County. . . Read More

Enforcement of the Foreign Corrupt Practices Act in the Healthcare Industry and Foreign Bribery’s Adverse Consequences for Patients

By Samer Korkor & Nicole Saleem

As companies that operate in the healthcare industry increasingly conduct
business in foreign countries, they increase their exposure to the Foreign Corrupt Practices Act (FCPA or Act),1 which prohibits payments or offers to pay anything of value to a foreign official in order to obtain or retain business. The pattern of FCPA enforcement actions brought by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) against entities in the healthcare industry over the last decade demonstrates the industry-specific challenges of compliance as well as the harsh sanctions faced by companies and individuals that violate the FCPA, including high fines, bad press, legal fees, and the possibility of a negative impact on stocks or profits. . . . Read More

Why the Ohio Early Voting Case Is Not a Threat to Military Voting Accommodations

By Steven F. Huefner

One of the most closely watched court battles of the 2012 presidential election was the lawsuit that the Obama campaign brought against the Ohio secretary of state in an attempt to restore early in-person voting for all Ohio voters on the final three days before Election Day. The case—Obama for America v. Husted1—revolved around the simple fact that in the 2012 election, new Ohio laws permitted county boards of elections to offer early in-person voting only to military voters . . . . Read More

Further to Professor Alldridge’s “Caffeinated” Article: What “Stuff” Did the Professor Have in Mind?

By Bruce W. Bean

For those interested in the struggle against overseas bribery, Professor Peter Alldridge has written a most valuable article. In The U.K. Bribery Act: “The Caffeinated Younger Sibling of the FCPA,”1 he provides valuable insight into the evolution and development of the U.K. Bribery Act 2010 (Bribery Act or Act). Alldridge was an important participant in the surprisingly long process that culminated in the passage of that Act. He takes us through the history of bribery and corruption laws in the United Kingdom (U.K.), beginning in the late nineteenth century . . . . Read More

Archive

Featured Notes

Federal Oversight of the Debt Relief Industry: A More Effective Means of Deterring Illegal Debt Schemes

By Justin P. Nelson

At the end of 2013, the Federal Reserve announced consumer revolving debt to have reached $861.9 billion.1 This high number has prompted the emergence of an industry promising to help relieve consumers of their enormous credit card debt.2 These companies offer services that are incredibly attractive to financially destitute individuals suffering under the burden of built up debt.3 . . . Read More

Class Dismissed? Addressing and Resolving the SLUSA Circuit Split

By David N. Sutton

In October, the Supreme Court will hear oral arguments for three consolidated cases stemming from the Allen Stanford Ponzi scheme in review of a recent Fifth Circuit decision1 on the correct application of the Securities Litigation Uniform Standards Act (SLUSA).2 . . . Read More

Featured Case Comments

Contrary to Popular Opinion: Why the Sixth Circuit's Omnicare Decision Should be Reversed

by Collin R. Flake

Indiana State District Council v. Omnicare, Inc.1 is a case about opinions—and what it takes to hold companies liable for incorrect ones. In Omnicare, a three-judge panel of the Sixth Circuit held that plaintiffs need only plead objective falsity of an opinion… Read More

The Sixth Circuit's Deleon Holding: How Granting a Requested Transfer May Be an Adverse Employment Action

by Megan Walker

In January 2014, the Sixth Circuit held that an employee who had previously applied for the position to which he was ultimately transferred was not disqualified from showing that the transfer was an adverse employment action for purposes of discrimination claims against his employer.2. . . Read More

Till Death Do Us Part: Obergefell v. Kasich and the Reconciliation of Patchwork Extra-jurisdictional Same-Sex Marriage Laws

By Joshua Snowden

Those five words—“till death do us part”—take on a palpable meaning for John Obergefell and David Michener, two plaintiffs in Obergefell v. Kasich.1 Following the U.S. Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act (DOMA)2 in United States v. Windsor,Obergefell will help resolve the interplay of Section 2 of DOMA4 and the Full Faith and Credit Clause (FFCC).5 . . . Read More

Shelly Holding: When One Failed Stack Test Is a Continuing Violation

By Ann Yackshaw

In December 2012, the Ohio Supreme Court dealt a blow to Ohio businesses’ ability to comply with the Ohio Air Pollution Control Act. This Act, which aims to “protect and enhance the quality of the state’s air resources,”1 requires facilities that emit air contaminants to obtain a permit that establishes emissions limits.2 . . . Read More

Issues, Not Injuries: The Effects of Covenants Not to Sue on Small Competitors

By Kevin Snell

The Supreme Court recently held in Already, LLC v. Nike, Inc.,1 that a trademark infringement case and a counterclaim alleging the trademark’s invalidity can be dismissed for mootness when a plaintiff unilaterally issues a covenant not to sue to the defendant. Such covenants enable large companies . . . . Read More

No Leg to Stand On: Clapper v. Amnesty International USA and the Dawn of an Increasingly Strict Standing Doctrine

By Sean J. Wright

In Clapper v. Amnesty International USA,1 the Supreme Court recently held that a group of reporters, human rights activists, attorneys, and labor organizations lacked Article III standing to challenge the constitutionality of § 702 of the Foreign Intelligence Surveillance Act (FISA).2 This 5 - 4 decision . . . Read More