University of Cincinnati Law Review最新文献

{"title":"The Need for a Lenient Admissibility Standard for Defense Forensic Evidence","authors":"Myeonki Kim","doi":"10.2139/SSRN.3476466","DOIUrl":"https://doi.org/10.2139/SSRN.3476466","url":null,"abstract":"While the unreliability of forensic evidence is becoming increasingly well known, the courts are still reluctant to apply a strict admissibility standard, particularly against government forensic evidence. Even the National Research Council’s groundbreaking report in 2009 has not changed the courts’ practices. This article finds that the status quo is problematic, because without strict review from the courts, the forensics community will not embrace genuine scientific standards. To resolve this problem, this article argues an asymmetry admissibility standard that is relaxed for defense. This asymmetric standard first levels the playing field, because the current admissibility standard favors the State. In addition, counter-intuitively, this new standard would ultimately help strengthen the government’s forensic evidence, which make this proposal more acceptable. This article also presents legal grounds to support the asymmetrical standard and provides specific examples of how the standard would be applied. Considering the continued resistance before and after the report, this proposal would be a practical method to strengthen forensic evidence.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47307362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law’s Enterprise: Argumentation Schemes & Legal Analogy","authors":"Brian N. Larson","doi":"10.2139/SSRN.3205907","DOIUrl":"https://doi.org/10.2139/SSRN.3205907","url":null,"abstract":"Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law-school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last 25 years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: The ‘skeptics’ are too focused on the rational force offered by the deductive syllogism when they should attend to the kinds of arguments that can provide premises for deduction—exactly the work that legal analogy does. Meanwhile, the ‘mystics’ expect us to accept legal analogy without an account of how to discipline it. Using the argumentation schemes and critical questions of informal logic, this article constructs a theory grounded in philosophy but kitted out for action. Not skeptic or mystic, it is dynamic.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44879231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State Civil Rights Remedies for Gender Violence: a Tool for Accountability","authors":"Julie Goldscheid, Rene Kathawala","doi":"10.2139/SSRN.3145123","DOIUrl":"https://doi.org/10.2139/SSRN.3145123","url":null,"abstract":"This article focuses attention on state civil rights remedies that provide a civil cause of action against those who commit acts of gender-based violence and frame the harm as a violation of the survivor’s civil rights. Though many of these laws long have been on the books, they are not widely used. The #MeToo movement has rightly focused public attention on the ways gender violence persists, and on the gaps in legal remedies for survivors. At the same time that law and policy-makers work to enact new laws to fill gaps, existing laws should be invoked to promote accountability and provide redress for survivors. State civil rights remedies do just that. \u0000In 1994, after four years of hearings, Congress enacted a civil rights remedy as part of the Violence Against Women Act (VAWA) (“VAWA Civil Rights Remedy”), which provided a private right of action against an individual who committed an act of gender violence. The law was modeled after other federal civil rights legislation and authorized a survivor of gender-motivated violence to bring a civil cause of action against the individual who committed the harm. The Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down the federal law as an unconstitutional exercise of Congress’ Commerce Clause powers and of Congress’ enforcement powers under the Fourteenth Amendment. While the law provided redress for survivors during the six years it was in effect, both pre-existing and later-enacted state and local remedies also provide a private right of action for gender violence as a civil rights violation. This article reviews those state statutes and the associated case law interpreting them. It demonstrates that those state laws can more widely be used by those who seek to hold those who commit acts of gender violence accountable. In the wake of the #MeToo movement, when high-profile and high-net-worth individuals are being held to account, and when reports of sexual violence that occur outside traditional employment settings are capturing public attention, those laws may be of increased utility. Trends in employment in which fewer workers are employed in settings covered by traditional federal and state anti-discrimination laws expose the gaps in existing civil rights frameworks and render additional remedies all the more important. The state laws reviewed here have not been the focus of much advocacy, scholarship, or litigation. This article advances an additional and under-utilized theory of recovery for gender violence survivors that offers a useful tool for accountability, redress and equality.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46116276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Political Discrimination by Private Employers","authors":"R. Wright","doi":"10.2139/ssrn.3271984","DOIUrl":"https://doi.org/10.2139/ssrn.3271984","url":null,"abstract":"","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68580812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Benefit Corporation Law","authors":"Mark J. Loewenstein","doi":"10.2139/SSRN.2840003","DOIUrl":"https://doi.org/10.2139/SSRN.2840003","url":null,"abstract":"This article compares the approaches to benefit corporation legislation, particularly the Model Legislation proposed by B Lab, on the one hand, and the Delaware and Colorado laws, on the other.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2016-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68377182","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Taft Lecture: Living Under Someone Else's Law","authors":"H. Gerken","doi":"10.2139/ssrn.2822404","DOIUrl":"https://doi.org/10.2139/ssrn.2822404","url":null,"abstract":"This paper explores the differences between vertical and horizontal federalism. Vertical federalism is so familiar that we can recite the reasons to value states’ role in our federal system as easily as children recite the alphabet. The law of horizontal federalism, in contrast, has mostly developed within its doctrinal silos - the Dormant Commerce Clause, personal jurisdiction, the Full Faith and Credit Clause.This papers makes two points. First, it’s both strange and instructive that the two halves of “Our Federalism” have developed so differently given that they are both preoccupied with the same problem: what happens when one government invades another’s turf? Vertical federalism offers a single narrative for adjudicating federal-state relations. We ask the same question in every case - how should we think of federal-state relations writ large? - and unsurprisingly gets the same answer in every case. Horizontal federalism, meanwhile, resolves state-federal tussles issue by issue, problem by problem, domain by domain. Rather than focusing on a single big question - how should we think of state-state relations writ large? - it emphasizes context and facts on the ground and a myriad of doctrinal questions writ small. It thus lacks what vertical federalism theory has long provided: a broad-gauged account of how our governing institutions ought to interact. Second, if we’re going to build an overarching narrative for horizontal federalism, it shouldn’t be the story scholars have offered thus far. The moral of that story is that no one should be forced to live under someone else’s law. But that tale is premised on an outdated attachment to state sovereignty and an unrealistic impulse to tamp down on state spillovers. The paper thus sketches an alternative, democratically inflected account that we should deploy going forward.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2016-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68355829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The $1.5 Billion General Motors Recalls at the Dangerous Intersection of Chapter 11, Article 9, and TARP","authors":"S. Henry","doi":"10.2139/ssrn.2755003","DOIUrl":"https://doi.org/10.2139/ssrn.2755003","url":null,"abstract":"The standard practice in many mega-Chapter 11 cases is to repay secured lenders at the outset of the case with the caveat that, if the repayment was inappropriate, the secured lenders will disgorge the payments. In the General Motors Chapter 11 case, a syndicate of lenders, mostly CLOs and various funds, were paid $1.5 billion at the outset of the case, even though their key financing statement had been accidentally terminated and thus they had no right to be paid. For almost seven years, the General Motors bankruptcy estate has been attempting -- at great cost -- to recover the money, and it seems unlikely that a material amount of the money will be recovered. This article explains why certain of the Federal Rules of Bankruptcy Procedure need to be amended to prevent similar problems in the future.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2016-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68291218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taxing Fictive Orders: How an Information Forcing Tax Can Reduce Manipulation and Distortion in Financial Product Markets","authors":"I. Beylin","doi":"10.2139/SSRN.2814700","DOIUrl":"https://doi.org/10.2139/SSRN.2814700","url":null,"abstract":"In a society where behavior is significantly influenced through private ordering, the example of others is meaningful. Actions, whatever they manifest on the part of the actor, serve to inform and direct observers. Furthermore, the intent of actors is difficult to assess. These observations are only more true in the context of financial instrument trading, which is largely determined through complex, anonymous algorithms and serves to guide actors far beyond the market participants responding to orders to buy or sell. The potential for misdirection through entering and then cancelling orders has been recognized by the Dodd Frank Act, which imposes penalties on traders that place an order with intent to cancel it (or \"spoofers\"). Fictive order flow can endanger markets and manipulate prices due to the modesty of traders observing distorted order volumes. Modesty in today's electronically driven financial markets is both a virtue and a vice. Modesty is both a means for impounding dispersed information and the source of distortion and manipulation.Policing order cancellations properly recognizes the potential for traders to over-react to changes in manifest supply and demand for a financial product and the public good nature of price information. The post-Dodd-Frank regime, however, is grossly inadequate. Punishing only intentional order cancellations is both under- and over-inclusive. Un-intended order cancellations are not simply likely, but represent the great majority of orders in status quo market dynamics. And un-intended order cancellations pollute the price signal no less than premeditated cancellations. On the over-inclusive side, consistent rates of bid- and offer-cancellations are predictable and thus should not significantly distort prices. Thus steady rates of order cancellation should not be penalized, even if intentional. Furthermore, the pre-requisite of intent results in regressive enforcement, high enforcement costs, and gross under-enforcement. Finally, the regulatory regime (and the literature) neglect the costs of artificial silence and focus only on excessive noise. Nothing is being done to deter excessive dearths of orders.This article explains how these flaws of the initial thrust to recognize the social costs of fictive orders should be addressed through a tax that ratchets super-linearly with a trader's net number of bid or offer cancellations. An intent-agnostic tax on excessive cancellations would avoid the over- and under-inclusion of the present regime as well as its expense and regressive consequences. Proceeds from the tax can be used to subsidize orders when market participants temporarily withdraw from trading.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68346023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Islam Incarcerated: Religious Accommodation of Muslim Prisoners Before Holt v. Hobbs","authors":"K. Beydoun","doi":"10.2139/SSRN.2561845","DOIUrl":"https://doi.org/10.2139/SSRN.2561845","url":null,"abstract":"On January 20, 2015, the United States Supreme Court ruled that the Arkansas Department of Correction’s grooming policy restricting a Muslim inmate from growing a half-inch beard violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The majority decision in Holt v. Hobbs, delivered by Justice Alito, held that the prison’s restriction substantially burdened Abdul Maalik Muhammad’s right to practice his faith – Islam. For Muslim men like Abdul Maalik Muhammad, donning a beard demonstrates piety, and emulation of Islam’s final and foremost messenger, Mohammed.Holt came before the Supreme Court during a moment of rising scholarly interest in the Muslim prison population. The War on Terror has converted American prisons into battlegrounds, pitting prison officials against “radical Islam.” In addition to fear of prisoner radicalization, the Nation of Islam (NOI), an African-American Muslim movement conceived in Detroit in 1930, is still strongly represented in American prisons. Scholars have not only paid little attention to the experience of NOI Muslim inmates, but also, segregated this narrative from the modern legal discourse about Muslim inmates have in the War on Terror era. The decision in Holt provides the ideal juncture to integrate the modern experience of Muslim prisoners with the pioneering strides brought forth by NOI Muslim inmates. This Article highlights the legal challenges and strategies used by incarcerated followers of the NOI and the victories earned: first, gaining judicial recognition of Islam as a religion prison authorities must accommodate; second, establishing that prisoners had standing to sue in federal court under the Civil Rights Act of 1871; and third, netting a range of fundamental religious accommodations that were not peculiar to the NOI, but amenable to Muslims across sectarian lines. Through an analysis of this litigation, this Article also examines the judicial construction of the NOI’s legal identity, impacted heavily by popular representations and misrepresentations of the movement that spiked in the late 1950’s – decades before the recent Holt decision.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2015-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2561845","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68204560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Consideration of Factual Issues in Extradition Habeas","authors":"Artemio Rivera","doi":"10.2139/ssrn.2666263","DOIUrl":"https://doi.org/10.2139/ssrn.2666263","url":null,"abstract":"The determinations made at an international extradition hearing cannot be appealed and may only be reviewed through habeas corpus. As the case law stands now, habeas courts reviewing extradition decisions are prevented from considering de novo the evidence presented at the extradition hearing, and petitioners are disallowed from introducing evidence to the habeas court. Instead, the factual determinations of the extradition magistrate are reviewed through habeas for “clear error” or through other low level standards of review. The courts support these procedures on authority from the late nineteenth and early twentieth centuries, a time when the scope of habeas corpus was mostly limited to issues of jurisdiction. I argue that the nature of habeas corpus as an original and independent civil procedure requires that petitioners be allowed to introduce evidence, and demands that habeas courts review de novo the determinations of probable cause by extradition magistrates, rather than through low level standards of review such as “clear error,” or “competent evidence.” These arguments are grounded on three main legal bases: (1) the Court’s opinion in Boumediene v. Bush, which concludes that habeas protection must be greater when the petitioner receives little process in the previous proceeding; (2) the provisions in 28 U.S.C. § 2243 that habeas courts must hear and determine the facts anew; and (3) the long history of fact finding by habeas courts when reviewing cases of executive detention and detention without trial.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2666263","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68246095","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}