Prior Racist Acts and the Character Evidence Ban in Hate Crime Prosecutions

The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and its state and common law analogues. The present article suggests there may be an escape from this conclusion that the evidence is inadmissible under the rule. Rule 404(b) is one of the most confused and controversial of the evidence rules. The clarifications we provide herein are sorely needed, particularly as respects evidence of racism. Attorneys and courts are increasingly being called upon to deal with the admissibility of a criminal defendant’s prior racist acts because of intensifying public scrutiny of race cases and FBI statistics revealing there were more than eight thousand hate crime incidents in 2020. This Article addresses whether, when, and how past acts exhibiting racism—what we will call “racist character evidence”—may be admissible in hate crimes cases consistently with 404(b). We examine seven gateways through which such evidence may be offered, at least some of which provide in our view a permissible path to admissibility. We hope to generate a robust academic debate on admissibility of racist character evidence and to supply guidance to courts and attorneys involved in these and related cases

Jon E. Krupnick Award

Chosen by the Trial Advocacy faculty or excellence in trial advocacy

Domestic Terror Across State Lines: A Failed Federal Framework

As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. It introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government. Due to the lack of common terminology in referencing domestic terrorism, a number of white supremacists who have crossed state borders to commit violent acts are prosecuted under federal hate crime and firearm laws. This lack of a consistent definition offers a corrigible reason why white supremacist organizations and supporters have largely circumvented prosecution under domestic terrorism charges. To properly address and regulate the interstate travel of individuals to commit white nationalist violence, the existing domestic terrorism statutory framework must be applied vigorously. This Comment argues that a consistent definition of “domestic terrorism” should be employed at the federal level in order to ensure that the statutory framework is enforced against perpetrators of such violent crimes. It ultimately concludes that a strengthened framework could lead to the regulation and subsequent prosecution of white supremacists who cross state lines to commit violent acts

The Next Big Abortion Rights Case

The Elena and Miles Zaremski Law Medicine Forum presents:Professors Jonathan Adler and Jessie Hill will discuss FDA v. Alliance for Hippocratic Medicine, the next major abortion case to be decided by the U.S. Supreme Court. In this case, the Court will decide whether the FDA acted illegally when it took certain steps to make the abortion medication mifepristone easier to access. Adler and Hill will provide an overview of the case and debate some key legal issues, including whether the plaintiffs have standing to bring the lawsuit and whether the 19th-century Comstock Act is relevant to the FDA\u27s 21st-century rulings. Speaker Bios Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and the founding Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, where he teaches courses in environmental, administrative and constitutional law. Adler is the author or editor of seven books, including Marijuana Federalism: Uncle Sam and Mary Jane (Brookings Institution Press, 2020), Business and the Roberts Court (Oxford University Press, 2016), Rebuilding the Ark: New Perspectives on Endangered Species Act Reform (AEI Press, 2011) and Climate Liberalism: Perspectives on Liberty, Property and Pollution (Palgrave). His articles have appeared in publications ranging from the Harvard Environmental Law Review and Yale Journal on Regulation to the Wall Street Journal, and New York Times. He has testified before Congress a dozen times, and his work has been cited in the U.S. Supreme Court. A 2021 study identified Adler as the fifth most cited legal academic in administrative and environmental law from 2016 to 2020. Adler is a contributing editor to National Review Online and a regular contributor to the popular legal blog, The Volokh Conspiracy. A regular commentator on constitutional and regulatory issues, he has appeared on numerous radio and television programs, ranging from the PBS Newshour and National Public Radio to the Fox News Channel and Entertainment Tonight. Adler is also a senior fellow at the Property & Environment Research Center in Bozeman, Montana. In 2018, Adler helped co-found the organization Checks and Balances. In 2004, Adler received the Paul M. Bator Award, given annually by the Federalist Society for Law and Policy Studies to an academic under 40 for excellence in teaching, scholarship, and commitment to students. In 2007, the Case Western Reserve University Law Alumni Association awarded Adler their annual Distinguished Teacher Award. In 2018, Adler was elected to membership of the American Law Institute. Prior to joining the faculty at Case Western Reserve, Adler clerked for the Honorable David B. Sentelle on the U.S. Court of Appeals for the District of Columbia Circuit. From 1991 to 2000, Adler worked at the Competitive Enterprise Institute, a free market research and advocacy group in Washington, D.C., where he directed CEI\u27s environmental studies program. He holds a BA magna cum laude from Yale University and a JD summa cum. Jessie Hill is the Judge Ben C. Green Professor of Law, School of Law, and Associate Dean for Research and Faculty Development, School of Law Jessie Hill’s teaching and scholarship focus on constitutional law, civil rights, reproductive rights and law and religion. Her articles have been published in the Michigan Law Review, Duke Law Journal, Georgetown Law Journal, and Texas Law Review, among others. She has also appeared in numerous local and national press outlets, including CNN, the New York Times, Ms. Magazine, and NPR. Hill is a frequent lecturer and consultant on reproductive rights issues, and she is currently litigating numerous challenges to abortion restrictions in Ohio. She is the founding director of the Reproductive Rights Law Initiative at the School of Law, which provides education and legal support relating to reproductive rights. Her work was recently profiled in the Case Law-Med magazine. Hill has received recognition for her work both within and outside the academy. She is a recipient of the university’s Distinguished Research Award. She has also been appointed a Nootbaar Fellow in Law and Religion at Pepperdine University Caruso School of Law. In 2023, she received both the Black Law Students Association Faculty Award and the Champion for Women Award from the Cuyahoga Democratic Women’s Caucus, and she has been recognized by the ACLU of Ohio for her reproductive rights advocacy. Hill joined the faculty in 2003 after practicing First Amendment and civil rights law with the firm of Berkman, Gordon, Murray & DeVan in Cleveland. Before entering private practice, Hill worked at the Reproductive Freedom Project of the National ACLU office in New York. She also served as law clerk to the Honorable Karen Nelson Moore of the United States Court of Appeals for the Sixth Circuit. She received her JD, magna cum laude, from Harvard University and her AB, magna cum laude, from Brown University

Piercing the Shield of U.C.C. Article 4A: \u3cem\u3eEstate of Levin v. Wells Fargo Bank’s,\u3cem\u3e Implications for Terrorism Victims’ Attachment of Blocked Electronic Wire Transfers Originating from State Sponsors of Terrorism

This Piece examines how ambiguity in the property interests that would be subject to attachment under section 201 of the Terrorism Risk Insurance Act (“TRIA”) and section 1610(g) of the Foreign Sovereign Immunities Act (“FSIA”) has affected efforts by victims of terrorism to fulfill their monetary judgments, especially in light of courts’ use of Article 4A of the Uniform Commercial Code to fill the definitional gap. This Piece focuses on a recent D.C. Circuit decision, Estate of Levin v. Wells Fargo Bank, N.A., analyzing its implications for terrorism victims holding monetary judgments to attach blocked electronic funds transfers (“EFTs”) originating from state sponsors of terrorism. Estate of Levin created a new circuit split with the Second Circuit. This Piece proceeds in three parts. Part I traces the FSIA’s history and locates TRIA within a larger Congressional effort to expand terrorism victims’ access to restitution via a series of FSIA amendments. It then explains how Congress’s failure to define the property interests that would be subject to attachment under TRIA section 201 and FSIA section 1610(g) has resulted in divergent efforts by courts to fill in the gap using federal interstitial lawmaking and state law. Part II explains the Second Circuit’s application of the New York U.C.C. Article 4A to blocked funds. It then discusses the main points of contention arising from Estate of Levin’s split from the Second Circuit, as well as Estate of Levin’s concurring opinion. Part III argues that Congress should intervene by amending TRIA section 201 and FSIA section 1610(g) to define EFT ownership interests using tracing and agency principles

The Acquisition of Twitter: The Legal Interplay Between Elon Musk, Shareholders, Employees, and the Government

This article examines the acquisition process of Twitter by Elon Musk. It will analyze the legal validity of Musk’s initial claims for rescinding his offer, as well as Twitter’s defense arguments. It will consider questions such as: Did Twitter cause a material adverse effect to its operations that would be a basis for Musk to avoid the deal? Did Musk run afoul of any regulatory requirements under the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) regulations? What impact did the ultimate sale of Twitter have on other stakeholders, such as corporate executives and non-executives, shareholders, employees. The paper further examines some of the resulting pre and post-acquisition issues that emerged, why they may remain nagging issues, and the lessons learned from the Twitter purchase debacle for the future of corporate governance

Biophilic design and biophilic cities: an explainer

The COVID-19 pandemic brought into focus that outdoor activities in natural settings have a positive impact on mental health, and individuals participating in outdoor activity report higher rates of emotional well-being than individuals who do not participate in such activity. Biophilic design is an architectural practice that aims to connect people to nature through design concepts with one of the benefits being psychological. Other benefits of biophilic design include improvements to environmental quality, physical health, support of animal species and habitats, and more resilient and energy-efficient cities

Breaking the Rules

“Breaking the Rules” is a legal research and writing assignment that I crafted for students completing their first year of law school. The assignment honors new students’ desire for skills that will allow them to effectively challenge the status quo of settled but discriminatory legal rules. Part I of this article is an essay that contextualizes and explains the assignment; Part II provides the assignment itself

A More Inclusive Classroom: Considerations for the Legal Research Professor Teaching Neurodivergent Students

This program will provide insights into the strengths neurodivergent students bring into the legal research classroom and the challenges they may face there, as opposed to the doctrinal classroom. This program will also provide possible solutions and best practices that legal research professors can implement in their classrooms to create a welcoming and accommodating learning environment for different types of thinkers, which will not only benefit neurodivergent students but also neurotypical students. Participants will be given time during this program to adjust an in-class assignment and an out-of-class assignment to be better suited for their neurodivergent students

Puerto Rico: The Island of Infringement? An Analysis of The Intersectionality of Eleventh Amendment Sovereign Immunity and Federal False Endorsement Claims

This Note delves into the complex legal landscape of Puerto Rico’s application of sovereign immunity in the context of federal false endorsement claims, focusing particularly on the recent case involving the unauthorized use of Hall of Fame baseball player Roberto Clemente’s name and likeness. It critically examines the intersectionality of Eleventh Amendment sovereign immunity with the Lanham Act’s Section 43(a), highlighting the challenges faced in enforcing intellectual property rights within unincorporated territories of the United States. The analysis begins by exploring the historical basis of sovereign immunity and its evolution from common law to the intricacies of the Eleventh Amendment. It then shifts to discuss the unique political and legal status of Puerto Rico, emphasizing its impact on the application of sovereign immunity in modern jurisprudence. The core of the Note addresses the litigation surrounding the misuse of Roberto Clemente’s name in government-promoted products, positing that Puerto Rico’s status and federal laws provide a unique legal framework that complicates the otherwise straight-forward application of sovereign immunity. Further, the Note assesses the implications of recent judicial decisions that may influence the ongoing debate over Puerto Rico’s sovereign immunity and its capacity to engage in commerce that infringes upon intellectual property rights. It argues for a reevaluation of traditional sovereign immunity in the context of federal territories to better align with the realities of modern intellectual property law and commercial practices. Ultimately, this Note advocates for a legislative and judicial reconsideration of how sovereign immunity is applied in territories like Puerto Rico, particularly in cases involving intellectual property. The Note concludes with recommendations for clearer guidelines that reconcile the need for sovereign immunity with the protection of intellectual property rights, suggesting potential judicial and legislative reforms to address these complex issues