Skip to main content
OSLJ Online
Volume 83 & 84
OSLJ Online
Guyora Binder, Anthony O’Rourke & Rick Su
Police Funding as a Deficit of Democracy, not Deterrence

Professor Noah Smith-Drelich’s Funding the Police is a welcome addition to the growing literature on structural barriers to implementing abolitionist visions of public safety. Professor Smith-Drelich’s central argument is consistent with our findings, in Defunding Police Agencies, that external funding of local police agencies imposes a set of “indirect constraints” that ensure robust police budgets and disincentivize spending on non-police social programs that might better ensure public safety. We believe, however, that Professor Smith-Drelich may be too sanguine about the deterrence potential of constitutional tort judgments. 

OSLJ Online
Cinnamon P. Carlarne & Keith H. Hirokawa
A Grand Strategy for Climate Change: Embedding Dominance or Enabling Disruption?

The costs of climate change are not just high, for many folks they are prohibitive of a safe and secure future.  Despite the astronomically high human (and non-human) costs associated with climatic change,  as a society, we remain loathe to change our ways. Just as Professor Raymond Brescia suggests in Course Correction with respect to a very different but remarkably analogous phenomenon, golf, fossil fuel consumption remains “woven into the cultural fabric of life” and, our reliance on fossil fuels as the engine of our economy and the foundation for our collective sense of economic security has “become institutionalized” shaping our collective “behavior and beliefs.” Drawing from Brescia’s thoughtful piece, here, we explore what theories and aspirations of grand design might bring to the climate movement.

OSLJ Online
Catherine L. Fisk
Seeking Structural Solutions to Structural Problems: Reforming Police Disciplinary Arbitration

In law reviews over the last decade, scholars have offered a range of diagnoses of the problems underlying police misconduct and a broad array of proposals to address it. A significant strand of critique has focused on the rules and institutions that enable police officers who kill to avoid losing their jobs.  It is particularly alarming when management of a police department decides an officer’s misconduct is so egregious as to warrant termination and an arbitrator overturns that decision and reinstates the officer. Little wonder, then, that proposals for police reform have included removing from arbitrators the power to overturn discipline so that it can be placed “in the hands of individuals who prioritize the public interest.”  To suggest, however, that arbitrators who handle police discipline cases somehow fail to consider the public interest is hardly likely to persuade even some, like Professor Michael Z. Green, who see serious problems with American policing.  After all, municipalities agree to the contracts that provide job protections and legislatures have adopted statutes granting police procedural and substantive protections against job discipline.  It therefore surprises me not at all that Green’s article, Black and Blue: Police Arbitration Reforms, responds so strongly to the suggestion that arbitrators are the culprits behind enabling police misconduct.

OSLJ Online
Abraham J.B. Cable
The Hard Lessons of Democratized Investing: A Reply to Gramitto Ricci and Sautter

In their response to Regulating Democratized Investing, Professors Gramitto Ricci and Sautter advocate for reforming the public education system in lieu of my regulatory proposal for protecting an emerging class of “ultra-retail investors.” While I support the educational reforms they propose, I continue to believe that Robinhood and its competitors warrant a shift in regulatory strategy.

OSLJ Online
Christopher M. Deucher
Data Breach Standing: How Plaintiffs May Find Their Footing After TransUnion v. Ramirez

Imagine the following scenario: a hacker breaks into a large company’s database and accesses its customers’ private information including names, addresses, credit card numbers, and dates of birth. A tricky question often arises: whether the breach itself constitutes a risk of future harm sufficient to demonstrate a concrete injury-in-fact. This Note discusses how data breach defendants and plaintiffs may navigate the post-TransUnion world of standing.   It explores the likely application of TransUnion in the data breach context and addresses how plaintiffs and defendants, respectively, can embrace it as either a sword or shield. 

OSLJ Online
John P. Gross
The Right to Hybrid Representation in Criminal Court

Hybrid representation refers to a model of representation where the defendant represents themselves but also has the assistance of counsel, the defendant and lawyer function as co-counsel. While the Supreme Court has said that a defendant is not entitled to what the Court labeled the “special appearances [of] counsel, it is not clear why a defendant is barred from presenting their own defense and having the assistance of counsel when we consider the plain meaning of the Sixth Amendment and other references to the right to counsel in state constitutions, historical precedent and other decisions of the Court that give a defendant the right to dictate the objective of the defense.

OSLJ Online
Sandra Sperino
Escaping Arbitration and Class Action Waivers for Harassment Because of Pregnancy, Sexual Orientation or Gender Identity

In 2022, Congress amended the Federal Arbitration Act (FAA) through the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.  This amendment is being abbreviated to a rather clumsy acronym: EFASASHA.  EFASASHA allows a person alleging sexual harassment or sexual assault to invalidate certain arbitration agreements and joint-action waivers. This Essay demonstrates how the term “sexual harassment” in Title VII jurisprudence embraces sexualized harassment, sex-based harassment, pregnancy harassment, and harassment because of sexual orientation and gender identity. It argues that interpreting EFASASHA to include these types of harassment is not only consistent with the statute’s text, but is also the best way to proceed practically and normatively

OSLJ Online
Conner Judson
Conservation Easement Deductions and a Practical Approach to the Mortgage Subordination and Proceeds Requirements

Conservation easements have emerged as an important tool in the constant struggle to balance economic advancement with environmental and historic protection, and have even been utilized for community development. Congress permanently codified an income tax deduction for the charitable donation of certain conservation easements, but several regulatory requirements must be met to qualify for a deduction.  This Note argues that a more practical approach to interpreting the regulations is preferable because it maintains beneficial community development incentives that support the aims of the statute, and ultimately signals that more effective methods of policing the deduction should be prioritized. 

OSLJ Online
Douglas Kriner & Andrew Reeves
Partisanship, Trump, and the Normative Implications of Presidential Particularism: A Response to Pasachoff's "Executive Branch Control of Federal Grants"

Given Congress's Article I powers of the purse, political science scholarship on federal spending long focused on Capitol Hill to understand the geographic allocation of federal outlays. More recently, theoretical arguments around presidential behavior and empirical studies of federal spending have examined the role of the executive branch in shaping federal grant spending. In a book and series of articles, we argued that “electoral and partisan incentives combine to encourage presidents to pursue policies across a range of issues that systematically target benefits to politically valuable constituencies.”

OSLJ Online
Erik S. Knutsen & Jeffrey W. Stempel
Insuring Fortuity—and Intent: A Comment on Professor French's "Insuring Intentional Torts"

Intentional torts are, and can be, insurable. We agree with Professor French when he concludes that the default rule in insurance law should be that liability insurance can provide coverage for intentional torts, absent compelling reasons. Indeed, Professor French notes a number of examples where a variety of intentional torts are already insured as a matter of course in a number of liability insurance contexts. He proposes that the public policies of both freedom of contract and innocent third party victim compensation support this approach and that courts...

OSLJ Online
Sergio Alberto Gramitto Ricci & Christina M. Sautter
The Educated Retail Investor: A Response to "Regulating Democratized Investing"

Abraham Cable’s article Regulating Democratized Investing is not only topical, but also necessary. Cable’s article tackles the debate on regulating mobile-first investing apps in a sophisticated fashion that carefully considers the interests at stake such as investor protection, market protection, and market accessibility. It largely opposes paternalistic regulation, which would raise unsurmountable barriers at the entrance of the stock market for retail investors. But it concedes to a form of regulation that in Cable’s own words “serves ultra- retail investors a modest portion of what they really want.”

OSLJ Online
Elena Shepherd
Not a "Public Concern," Not a Problem?: Reframing the Public Employee Speech Framework to Enhance Protection for Employees' Private Speech

The Free Speech Clause of the First Amendment clearly inscribes the belief that speech without state interference is foundational to the American system of governance. But deciding precisely the contours of the scope the Clause protects is dubious. “Political and ideological” speech receives the greatest protection,4 whereas speech with negligible political and social value— obscenity, defamation, threats, or speech inciting violence or integral to illegal conduct—receives none...

OSLJ Online
Ellen S. Podgor
The Role of Business in Combatting Corrupt Criminal Conduct

What is the role of businesses in the insurrection at the Capitol on January 6, 2021? What is the role of businesses in the current Russian aggression against Ukraine? Can businesses play an important role in exacerbating or combatting corrupt criminal conduct? This Essay considers these issues.

OSLJ Online
Mark Brown
Candidate Debates in Ohio: Can Corporations Fund the Major Parties?

During the gubernatorial election in 2018, Ohio’s Democratic (Cordray) and Republican (DeWine) candidates squared off in a series of televised debates in Dayton, Marietta, and Cleveland. Staged by three non-profit corporations (including two private colleges) the debates were a culmination of behind-the-scenes discussions between the DeWine and Cordray campaigns. No other candidates were invited...

OSLJ Online
Ilhyung Lee
Footnotes to Forefront

What exactly do the Asian American members of the plaintiff in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College want? They wish to be treated fairly in their applications to Harvard, of course, per the name of the organization of which they are card-carrying members. But life is not always fair, and not everyone can get into Harvard, even if they— identified . . . 

OSLJ Online
Robert P. Merges
Independent Owners: A Comment on Peter Lee, Autonomy, Copyright, and Structures of Creative Production

Peter Lee has contributed an impressive addition to a new, fast-rising wing of IP theory. Like others working alongside him, Professor Lee’s contribution features the transactional and organizational functions of intellectual property rights (IPRs). In particular, copyrights. His attention is trained on the entertainment industry, and his main goal...

OSLJ Online
Alex Wang
A Reply to Farber, Tsuji & Jing's "Thinking Globally, Acting Locally"

Farber et al.’s Thinking Globally, Acting Locally: Lessons from the U.S., Japan, and China (the “Article”) asks a critical question: “What prompts some state and local governments to take [climate] action while prompting others to resist?” In the U.S. context, the literature on this question, as the authors point out, is quite extensive. The authors contribute to this literature most obviously...

OSLJ Online
Carolyn Shapiro
The Limits of Procedure: Litigating Voting Rights in the Face of a Hostile Supreme Court

Charquia Wright’s article, Circuit Circus: Defying SCOTUS and Disenfranchising Black Voters, tells a story that is disturbing for two separate reasons. First, focusing on a 2016 Sixth Circuit case, Northeast Ohio Coalition for the Homeless v. Husted (NEOCH), Professor Wright demonstrates how a circuit court, deliberately or inadvertently, can circumvent certain types of Supreme Court precedent...

OSLJ Online
Martha T. McCluskey
Rethinking Economics for Tax Law and Political Economy

In their article Taxation and Law and Political Economy, Jeremy Bearer-Friend and co-authors make an important contribution to LPE by grappling with the relationship between economic incentives and the LPE goals of democracy, equality, and attention to power. Reviewing the emerging LPE approach, the authors identify two diverging strands: an “exclusive” LPE approach that rejects the influential “law-and-economics” focus on efficiency and a “pluralist” strand that would contextualize and qualify this law-and-economics by emphasizing political and normative commitments to democracy and equality...

OSLJ Online
Josh Lens
The NCAA Infractions Process and Peer Review

When college coaches face accusations that they violated NCAA rules, their careers can be at stake. It may be in coaches’ best interests for their peers to determine the fate of these allegations, as fellow coaches likely appreciate the intricacies and pressures that accompany today’s highly commercialized college athletics. Thus, it may hearten coaches facing allegations of NCAA rules violations that the NCAA advertises its process as peer reviewed. In reality, however...

OSLJ Online
Lloyd Hitoshi Mayer
A Critical Problem Needing a Bolder Solution?: A Response to Atinuke O. Adediran's "Nonprofit Board Composition"

The governing boards of nonprofit organizations, and particularly of nonprofits that serve low income and other vulnerable populations, fail to adequately include the populations that they serve. At least this is the common understanding among people familiar with these boards. Professor Atinuke Adediran not only confirms the existence of this problem but clarifies it in four important ways. Professor Adediran also proposes concrete steps to address it; although, the clarity she has brought to the problem raises the question of whether she could have been bolder in her proposed solutions.

OSLJ Online
Katrina M. Wyman
From Why to How Subnational Jurisdictions are Mitigating Climate Change

Thinking Globally, Acting Locally looks anew at why some cities and other subnational jurisdictions are seeking to limit climate change, a question that has attracted the interest of legal scholars, political scientists, and others since the 2000s. The starting premise for this literature is that subnational actions to reduce greenhouse gas (GHG) emissions are puzzling because these policies may impose costly obligations on local actors that mostly benefit people elsewhere.

OSLJ Online
Ryan M. Rodenberg
Transmitting Sports Betting 'Information' and Data: A Response to Edelman, Holden, and Wandt

In U.S. Fantasy Sports Law: Fifteen Years after UIGEA, Marc Edelman, John T. Holden, and Adam Scott Wandt comprehensively recount the eventful decade-and-a-half overlap between fantasy sports and the Unlawful Internet Gambling Enforcement Act (“UIGEA”). But the authors do not stop there. Edelman, Holden, and Wandt also include a detailed examination of several forward-looking cybersecurity concerns—consumer security, anti-money laundering, and automated bots—that emanate from fantasy sports. Further, the authors pinpoint recent Internal Revenue Service (“IRS”) scrutiny of the industry and the potentially “deleterious effect” on smaller companies if the IRS treats certain fantasy sports companies like traditional sports betting operators. There is one recent development Edelman, Holden, and Wandt do not discuss, however.

OSLJ Online
Gregory S. Parks
Martial Arts as a Remedy for Racialized Police Violence

Over half a decade ago, law professor Cynthia Lee offered an intriguing argument in an article titled Race, Policing, and Lethal Force: Remedying Shooter Bias with Martial Arts Training. In short, Professor Lee argued that if law enforcement had martial arts training, they would be less likely to incorrectly assume that Black suspects are armed and shoot them. Since the publication of her article, police killings of unarmed and nonthreatening Blacks has persisted resulting in a national outcry. In this essay, I revisit Professor Lee’s argument in a more nuanced manner.

OSLJ Online
Jessica Silbey
New Copyright Stories: Clearing the Way for Fair Wages and Equitable Working Conditions in American Theater and other Creative Industries

We need some new intellectual property stories. By stories, I don’t mean entertaining fictions. I mean instead accounts or explanations that make sense of the world as it is lived by everyday people. Most of our relevant intellectual property laws were forged in the mid-twentieth century and have failed to keep pace with the transformations in creative and innovative practices of the twenty-first. Being out-of-sync or failing to recognize broader existing stakeholders means laws are poorly aligned with on-the-ground realities and are out-of-touch with values and interests of the people laws serve.

OSLJ Online
Zack Smith
Does D.C. Statehood Require a Constitutional Amendment?: You Better Believe It

In the debate surrounding whether the District of Columbia should become our nation’s 51st state, understanding the relevant constitutional provisions implicated is key, and there are at least three: (1) the Twenty-Third Amendment, (2) Article I, section 8, clause 17 (the District Clause), and (3) Article IV, section 3 (the Admissions Clause). More importantly, these provisions shed light on whether Congress has the power to radically transform both the size and status of the District of Columbia by simple legislation. In short, it does not...

OSLJ Online
Brooke Zentmeyer
Towards a Loraxian Praxis: Lessons from Legal History, Lake Erie, and The Lorax

In 1971, Lake Erie was so polluted that Theodor S. Geisel, a.k.a. Dr. Suess, referenced the lake to convey the toxic consequences of resource exploitation to readers of his children’s book, The Lorax. The Lorax tells the story of an avaricious entrepreneur called the Once-ler who sets up an industrial operation in a Suessian environment that involves toppling Truffula trees...