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Most Recent Print Issues
June-July 2022
Volume 83, Issues 1-3
Note
Meghan E. McDonnell
Ensuring Fair Competition in the Midst of the Streaming Wars

In December 2020, Warner Bros. shocked the country with its unprecedented announcement that it would be releasing all of its new 2021 movies on its streaming service, HBO Max, on the same dates as the theater premieres of the films. While many speculate that this is a temporary solution in response to changes in consumer habits due to the pandemic, those in the film industry know that this pivot was inevitable and could be here to stay.

Article
Charquia Wright
Circuit Circus: Defying SCOTUS and Disenfranchising Black Voters

Law students are uniformly taught that federal circuit courts cannot and will not overrule Supreme Court precedent under any circumstance. This is not true. They can, with little fear of corrective mechanisms like en banc oversight, Supreme Court review, or congressional override. And in certain circumstances, they are bound to do so by the law of the circuit. Under the prudential law of the circuit doctrine in-circuit precedent binds circuit courts, even in scenarios where conflicting long-standing Supreme Court precedent exists. Circuits can only depart from erroneous circuit precedent if a later-decided SCOTUS or en banc decision obviates the circuit precedent.

Article
Matthew Kim
For Appearance's Sake: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession

How can we restore the public’s faith in government institutions, particularly the courts? With the public’s opinion of the legal system at an all-time low, the legal profession faces a crisis of confidence. This Article argues that the “appearance of impropriety” standard should be categorically applied to regulate all members of the legal profession to restore the public’s faith in the profession.

Article
Jeremy Bearer-Friend, Ari Glogower, Ariel Jurow Kleiman & Clinton G. Wallace
Taxation and Law and Political Economy

The Law and Political Economy (LPE) project seeks to reorient legal thought by centering considerations of power, equality, and democracy. This reorientation would supplant approaches to legal thought that prioritize efficiency and neutrality, and that imagine a pre-political market “encased” from legal scrutiny or intervention.

Article
Deborah L. Brake
Theory Matters—And Ten More Things I Learned from Martha Chamallas About Feminism Law, and Gender

Martha is quintessentially a feminist legal scholar—with each of these terms equally defining. Her scholarship brings a critical feminist lens to the law, and a legal analysis to feminism. Because employment discrimination is a major site of law’s engagement with gender, it is the subject of much of Martha’s scholarship. But hers is a body of work that transcends any single doctrinal category. Martha’s explorations of law...

Article
Scott Skinner-Thompson
Anti-Subordination Torts

In law school curriculum, the first-year tort law course is often caricatured as the class with the funky, sometimes amusing, fact patterns where people get injured—occasionally in bizarre ways—and attempt to recover from the party purportedly responsible. In legal scholarship, tort law has historically been dominated by two approaches: the law and economic approach focused on efficiently distributing the costs of injuries and on preventing/deterring them, and the civil recourse or corrective justice approach that underscores tort law’s role in providing individual redress for victims who have been injured by a wrongdoer.

Article
Garry W. Jenkins
Introduction: A Festschrift for Professor Martha Chamallas

It is my honor to pay tribute to my long-time senior colleague, treasured mentor, and dear friend of almost two decades, Martha Chamallas, upon her retirement from full-time teaching. Simply put, Martha is a wonder. One of the most original and important legal scholars of her generation, Martha has had an impact on law, the legal academy, and, in particular, the public discussion of issues of gender and racial bias that is deep, broad, and lasting. She is a splendid blend of theoretician, humanitarian, and practical lawyer.

Article
Atinuke O. Adediran
Nonprofit Board Composition

This Article addresses a critical gap in the literature and current debates about the composition of nonprofit boards. The law of fiduciary duties and nonprofit governance best practices do not provide sufficient guidance on how to compose boards to empower the communities they serve. And even as the corporate sector is seizing on current important moments to debate the inclusion of employees and racial and ethnic minorities on corporate boards, nonprofit boards are largely left out of these debates.

Article
Peter Lee
Autonomy, Copyright, and Structures of Creative Production

Whether and how copyright promotes creative expression is the central question of copyright law. The standard rationale—that copyright provides economic incentives to create—has attracted sustained critique. While copyright impacts creativity in myriad ways (both positively and negatively), this Article explores an underappreciated organizational mechanism by which copyright contributes to creative expression.

Article
Brent Salter & Catherine L. Fisk
The Fragility of Labor Relations in the American Theatre

As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience. Playwrights, represented by the Dramatists Guild, and commercial theatre producers have negotiated collectively for nearly a century, but have done so under a cloud of legal uncertainty at the intersection of antitrust law and labor law that dates to the pre-New Deal era.

Article
Jerry L. Mashaw
Peter Shane and the Rule of Law

Peter Shane has had a long and varied career and his publications range over a host of topics. But there are common themes that animate many of his articles and books. One of these, and I would argue one of the most important, is a preoccupation with the idea of the rule of law. Or, perhaps I should say, a preoccupation with understanding what the rule of law means and with threats to the maintenance of the rule of law in the American legal system.

Article
Heidi Kitrosser
On Peter Shane's Engaged Excellence

Since I began writing about unitary executive theory in the mid-aughts, I have been deeply influenced by Peter’s work on the subject. Unitary executive theorists maintain that the President must control all discretionary activity within the executive branch. Although unity was embraced by Chief Justice Taft and a majority of the Supreme Court in 1926 in Myers v. United States, the Court soon shifted course...

Article
Harold H. Bruff
Toward a Workable Government

I am honored to respond to Ohio State’s invitation to comment on Peter Shane’s contribution to the field of separation of powers law on the occasion of his retirement. Because his new book, Democracy’s Chief Executive, captures and extends the central themes of his prior work, I will analyze it to shed light on his career more generally.

Article
James J. Brudney
Peter Shane: Looking Back and Looking Forward

In a career spanning decades, Peter Shane has established himself as a Polymath of Public Law. Professors Bruff, Kitrosser, and Mashaw justly celebrate his contributions on separation of powers tensions and on rule of law values. But Peter’s wisdom and teaching extend much further: into telecommunications law, the internet and cybersecurity, the First Amendment, voting rights, war powers, and presidential pardons, to cite a few examples.

Note
Hannah Muller
Dismissive: How Trafficking Survivors Are Held to an Unlawfully High Standard in Seeking Civil Liability Against Hotels and a Proposed Solution

A survivor of human trafficking brings a civil action against the hotel chain that benefited from her exploitation under a federal statute and indirect liability. She claims her pimp rented the hotel rooms for weeks at a time using cash and through the lobby to her hotel room every day. The staff could see physical signs of her abuse and hear loud altercations when these men visited her room. Maid service was never requested during these visits and, when her pimp checked her out, the room was filled with used condoms, sex paraphernalia, and broken objects. Public policy would suggest she should have a valid cause of action against the hotels who facilitated her exploitation. Yet, depending on the state in which she brings her lawsuit, her remedy may be dismissed by the mere granting of a pretrial motion...

Article
Marc Edelman, John T. Holden & Adam Scott Wandt
U.S. Fantasy Sports Law: Fifteen Years After UIGEA

This Article explains how the United States regulates the fantasy sports industry, fifteen years after the passing of the Unlawful Internet Gambling Enforcement Act of 2006. In particular, this Article delves into the subtle but important shift in the connotation of the term “fantasy sports,” which has come to subsume, and arguably be engulfed by, “daily fantasy sports.” In addition, this Article explores new state laws for licensing and taxing fantasy sports operators, the Internal Revenue Service’s recent efforts to apply a federal wagering tax to daily fantasy sports transactions, concerns about market consolidation and antitrust risk within the industry, and emerging industry concerns about cybersecurity, customer identification, and consumer privacy protection.

Article
David A. Dana
Public Nuisance Law when Politics Fails

Public nuisance lawsuits provide a vehicle for litigants to address public problems that legislatures and agencies have sidestepped. The courts have generally rejected such suits, directing litigants back to the very legislatures and agencies that allowed the problems to fester in the first place. This Article proposes a normative framework for judges to evaluate public nuisance claims, balancing democratic legitimacy, technical competency, and the magnitude of the harm. This approach has several important implications, including that courts should stop avoiding reaching the merits of nuisance claims by relying on preemption and abstention doctrines, as they have done with recent claims involving COVID-19, interstate air pollution, and climate change...

Article
John O. McGinnis & Michael B. Rappaport
Presidential Polarization

Because the President represents the median of his or her party, not of the nation, the decisions of the President normally are more extreme than what would emerge from Congress, particularly when, as is usually the case, the houses of Congress and the President are divided among the parties. Domestically, Congress’s delegation of policy decisions to the executive branch allows the President’s administration to create the most important regulations of our economic and social life. The result is relatively extreme regulations that can shift radically between administrations of different parties, creating polarization and frustrating the search for political consensus. In the arena of foreign affairs as well, presidential power to engage in military interventions and to strike substantial international agreements on the President’s own authority avoids the need to compromise to achieve political consensus.

Article
A Farewell to Professor and Advisor Christopher J. Walker

It is truly bittersweet to recognize the departure of Professor Christopher J. Walker from The Ohio State University Moritz College of Law.1 He has been an invaluable asset to the Ohio State Law Journal, where he served as faculty advisor from 2017 to 2022. And while we regret to see the conclusion of his tenure as our advisor, we join in celebrating this exciting next step in his academic career.