We are waiting until we have more items loaded to promote the “big launch” — but the Case Western Reserve Law School Scholarly Commons is now live. The library has begun to load faculty publications, and will be adding many more in the coming weeks as we refine our batch uploading techniques, proofread metadata, clear permissions, run through the remainder of our extensive archive, and catch up with new work.
The current version of the repository includes an archive of faculty publications. Watch for online archives of our journals’ content in the coming months, along with other exciting series and exhibitions.
Here is a selection of the scholarly articles most recently uploaded to Scholarly Commons:
'Lonesome Road': Driving Without the Fourth Amendment
by Lewis R. Katz
American states and municipalities have so many minor traffic regulations that every time a driver gets behind the wheel of a car he or she is likely to commit multiple violations. The violation of any traffic regulation empowers police officers to stop the vehicle, ticket and, in some states, arrest the motorist. Police are physically unable to stop and ticket, let alone arrest, every motorist committing a traffic violation. Instead, police are vested with unlimited discretion when choosing which motorists to stop, warn, ticket, or arrest. So long as there is probable cause for a traffic violation, courts will not [...]
Tue, May 20, 2014
New on Scholarly Commons
A Tribute to Professor Arthur Austin
by Leon Gabinet
Tribute to Author Austin [...]
Tue, May 20, 2014
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Ambivalence & Activism: Employment Discrimination in China
by Timothy Webster
Chinese courts do not vigorously enforce many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, signals from above, and rights at issue, courts can help victims vindicate their constitutional and statutory rights to equality. Since 28, carriers of the hepatitis B virus (HBV) have used the Employment Promotion Law to challenge hiring discrimination. Their high success rate suggests official support for making one potent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists and scholars who have advocated for protecting the rights of HBV [...]
Tue, May 20, 2014
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Comparative Bullet Lead Analysis: A Retrospective
by Paul C. Giannelli
For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was [...]
Tue, May 20, 2014
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Confrontation, Experts, and Rule 703
by Paul C. Giannelli
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 73 and 75, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial. [...]
Tue, May 20, 2014
New on Scholarly Commons
Forensic Science: Why No Research?
by Paul C. Giannelli
The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”
The Report went on to identify fingerprint examinations, firearms (ballistics) and [...]
Tue, May 20, 2014
New on Scholarly Commons
Insular Minorities: International Law’s Challenge to Japan’s Ethnic Homogeneity
by Timothy Webster
The Japanese state has long promoted a view of itself, and the country, as ethnically homogeneous. Borrowing on critical race theory as developed in the United States, this paper first traces the numerous laws and policies that Japan has implemented to privilege ethnically Japanese people, and prejudice ethnic others. Next, the paper examines the role of international human rights law in challenging various edifices of the ethno-state, including amendments to legislation, and individual lawsuits. I conclude that international law has played a meaningful role in diversifying the protective ambit of Japanese law, but cannot provide all of the solutions that [...]
Tue, May 20, 2014
New on Scholarly Commons
Investigative Deceit
by Kevin C. McMunigal
Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series [...]
Tue, May 20, 2014
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Junk Science and the Execution of an Innocent Man
by Paul C. Giannelli
Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science.
The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor then attempted to derail an investigation by the Texas Forensic [...]
Tue, May 20, 2014
New on Scholarly Commons
Law Review Symposium 2011: Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution: Introduction
by Jonathan L. Entin
Introduction to Law Review Symposium 2011: Baker V. Carr after 50 Years: Appraising the Reapportionment Revolution, Cleveland, OH [...]
Tue, May 20, 2014
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Mass Murderers Discover Mass Murder: the Germans and Katyn, 1943
by Kenneth F. Ledford
After the German army in 1943 discovered the graves of murdered Polish army officers in the Katyn Forest, Joseph Goebbels embarked upon a cynical publicity campaign to spread before the world the perils of Bolshevik success. But the Nazi discovery of Soviet crimes against leaders of Polish state and society elided the reality that from the very beginning of the German invasion of Poland, the SS had carried out identical mass murders of Polish intellectuals and other social leaders. Goebbels's campaign amounted to mass murderers ““uncovering” mass murders on the part of their adversaries and seeking cynically to use that [...]
Tue, May 20, 2014
New on Scholarly Commons
Safford Unified School District No. 1 v. Redding, and the Future of School Strip Searches
by Lewis R. Katz
Each year in America an unknown number of children in primary and secondary schools are strip searched by teachers and/or school administrators, forced to remove pants and shirts down to their underwear and sometimes forced to expose their breasts and genitals. In Safford Unified School District No. 1 v. Redding, 129 S.Ct. 2633 (29), the Supreme Court weighed in on the issue, finding that school officials violated the child’s Fourth Amendment rights during a strip search but reversing the Ninth Circuit and awarding the school officials qualified immunity not withstanding the ineptitude of the investigation. The Court purported to apply [...]
Tue, May 20, 2014
New on Scholarly Commons
Scientific Evidence and Prosecutorial Misconduct in the Duke Lacrosse Rape Case
by Paul C. Giannelli
The need for pretrial discovery in criminal cases is critical. A defendant's right to confrontation, effective assistance of counsel, and due process often turns on pretrial disclosure. This essay discusses a case that demonstrates this point. [...]
Tue, May 20, 2014
New on Scholarly Commons
Scientific Fraud
by Paul C. Giannelli
Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department. [...]
Tue, May 20, 2014
New on Scholarly Commons
The (Lack of) Enforcement of Prosecutor Disclosure Rules
by Kevin C. McMunigal
In this Article, I assess the apparent prospects for increased disciplinary enforcement of state ethics rules based on Rule 3.8(d) of the American Bar Association's (“ABA”) Model Rules of Professional Conduct that mandates prosecutorial disclosure of exculpatory information. In particular, I focus on whether it makes sense to view recent ABA Formal Opinion 09-454, in which the ABA gave an expansive reading to Model Rule 3.8(d), as the bellwether of an era of increased enforcement of ethical disclosure rules for prosecutors. [...]
Tue, May 20, 2014
New on Scholarly Commons
The 2009 NAS Forensic Science Report: A Literature Review
by Paul C. Giannelli
In February 29, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (29). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”
Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious deficiencies [...]
Tue, May 20, 2014
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The Law and Economics of Norms
by Juliet P. Kostrisky
The Evolution of Norms Within Economics and Law: Why Norms Were Ignored and Why They Matter Under Realistic Models of Behavior in Which Norms Emerge as the Outcome of Exchange to Reduce Costs [...]
Tue, May 20, 2014
New on Scholarly Commons
The Morals of the Marketplace: A Cautionary Essay for Our Time
by Lawrence E. Mitchell
This brief essay explores the economic and social legitimacy of modern financial markets, with particular attention to the relationship between risk and responsibility. Using the markets for corporate common stock and mortgaged-backed securities as illustrations, and modern portfolio theory as its theoretical base, it raises questions about the links between capital markets and the real economy, and their effects upon each other. It concludes that capital markets largely have become disconnected from the real economy and have created a context in which finance finances finance rather than production.
This theoretical essay introduces a larger empirical project in progress in which I [...]
Tue, May 20, 2014
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Wilbur C. Leatherberry: A CWRU Lifer
by Jonathan L. Entin
Tribute to Wilbur Leatherberry. [...]
Tue, May 20, 2014
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Wilbur Leatherberry: Our Center of Gravity
by Peter M. Gerhart
Some lead with words; some with actions. Some lead with anger; some with authority. Some lead with attitude. Those who lead with attitude are precious few, made more precious because they are so few. Bill Leatherberry leads with attitude. He projects a quiet and reasoned confidence. He is unflappable and imperturbable. He projects calm and control, evidence of a sure faith that things will work out. [...]
Tue, May 20, 2014
New on Scholarly Commons