Cultural Resource Preservation in Ohio: The Development of Federal and State Law

This note will examine the legal protection afforded to cultural resources located in the state of Ohio. It will begin with a brief description of the nature of cultural resources, the dangers confronting them and the resulting efforts to protect them through appropriate legislation. The changing concepts of cultural resources and their social values will be considered in a statutory context. The development of federal preservation law will be traced from the turn of the century to the present with emphasis on the diverse approaches employed by Congress. This discussion will demonstrate that a comprehensive body of federal legislation has emerged to safeguard culturally significant properties through federal ownership, regulation, financial incentives and criminal sanctions. Ohio preservation efforts will then be examined with critical attention to the limitations of these measures. Amended Substitute House Bill No. 418, the major piece of state legislation, will be discussed at length and the programs established by this 1976 statute will be evaluated. Recommendations will also be offered for additional legislation

Revisiting the "Compliance-vs.-Rebalancing" Debate in WTO Scholarship a Unified Research Agenda

This paper constitutes an attempt to reframe and eventually deflate the ongoing “compliance-vs.-rebalancing” debate which has permeated WTO scholarship for the last 10 years. At face value, this controversy circles around object and purpose of WTO enforcement and the legal nature of dispute panels’ recommendations: Compliance advocates maintain that the objective of WTO enforcement is to induce compliance with DSB panel/AB rulings, and to deter future violations of the Agreement, while rebalancing advocates detect an inherent “pay-or-perform” logic in WTO enforcement. In the paper we examine the shortcomings of each approach separately. Our main criticism, however, concerns the substance of the entire debate. We find that scholars on both sides of the compliance/rebalancing controversy put an unduly rigid emphasis on the subsequent issues of WTO enforcement and the interpretation of the wording of the dispute settlement understanding. They thereby neglected systemic issues of contracting, viz. the nature of contractual entitlements, the need for trade policy flexibility mechanisms and the optimal design of the appropriate remedies. We redefine and recalibrate the compliance/rebalancing controversy along the lines of the nature of the WTO contract. This results in to three key findings: First, none of the two schools of thought succeeds in giving an accurate picture of the WTO treaty. Second, the two perspectives actually portray two strikingly different concepts of the WTO contract, and therefore have been at cross-purposes from the very beginning. This implies a third finding: The two schools of thought essentially describe different facets of the same complex WTO contract. Hence, they have hardly been at loggerheads at all, and are actually complementing each other in important aspects. We lay out a unified research agenda that practitioners, economists, trade lawyers, and international relations scholars alike can accept. The agenda may contribute to reconciling the two opposing views and help WTO scholarship tackle the real systemic issues of the WTO Agreement.WTO, dispute settlement, incomplete contracts, remedies, enforcement

Digitization, Commodification, Criminalization: The Evolution of Criminal Copyright Infringement and the Importance of the Willfulness Requirement

Part I of this Article examines the historical evolution of criminal copyright infringement in this country, culminating in the adoption of the NET Act. Part I also provides an overview of the changes in criminal copyright infringement affected by the NET Act. Part II analyzes why, after 100 years, Congress eliminated the requirement of a profit motive for criminal liability and significantly expanded the reach of the criminal sanctions of the Copyright Act. Part II also describes not just the decisional impetus for the amendment to the Copyright Act, United States v. LaMacchia, but the underlying pressures placed on copyright law by the digitization of copyrighted works and the commodification of the intangible rights granted by copyright law. Part III explores the possible reach of this new Act, questioning whether it casts the net of criminal infringement too wide. Finally, Part IV addresses the importance of the element of willfulness retained in the statute. This section discusses the interpretation of the term “willful” by the Supreme Court in other areas of law and the interpretation that term has been given by lower courts in the context of the Copyright Act. This section proposes that to prove criminal copyright infringement the government should be required to show that the defendant intentionally violated a known legal duty and that the defendant lacked a good faith belief that the conduct at issue was lawful. Only with this standard in place can the NET Act be kept within reasonable bounds and not risk deterring the lawful and socially productive activity which underlying policies of the Copyright Act seek to encourage

The Corporate Criminal as Scapegoat

A corporation is no scapegoat, assures the Department of Justice, because the first priority is to prosecute culpable individuals and not artificial entities. Yet, as I document in this empirical study, far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged. High profile failures to prosecute executives in the wake of the Global Financial Crisis have only made the problem more urgent. The corporation appears to be a kind of a scapegoat: impossible to physically jail, but capable of receiving blame and punishment while individual culprits go free. In this Article, I develop original empirical data detailing the path of individual prosecutions accompanying federal corporate prosecution agreements. Only 34 percent of federal corporate deferred and non-prosecution agreements from 2001-2014 were accompanied by charges against individuals. Those prosecutions produced uneven results. Only 42 percent of those charged received any jail time. There were large numbers of outright losses: 15 percent terminated in acquittals or dismissals. Only a handful of the cases involved high-level executives. These findings illustrate the challenges posed by organizational complexity and the manner in which it can obscure fault. Contrary to the calls of prominent critics, I argue that bringing more individual criminal cases cannot adequately substitute for prosecuting companies. Instead, corporate prosecutions should be leveraged to enhance individual accountability. In conclusion, I propose statutory, sentencing, and policy changes to tighten the connection between individual and corporate accountability for crimes