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Home Instruction: An Analysis Of The Statutes And Case Law, James W. Tobak, Perry A. Zirkel

University of Dayton Law Review

Contents: Introduction, statutory analysis, case law analysis (“no-exception” statutes, “equivalency” statutes, “explicit” statutes), summary and conclusions.

Anticipatory Breach And The Unilateral Contract: A Decade Of The Status Quo, Donald A. Wiesner, Janisse Klotchman

University of Dayton Law Review

The law on anticipatory breach has been called “difficult” for students and referred to as “pure joy to teachers intent upon persecuting their students.” With such characterizations, these writers could not resist the temptation to inspect decisions of the last decade to discover if additional nuances in the law of anticipatory breach have been revealed.

Such is the objective of this paper. It is an inquiry into case decisions of the past decade to determine whether what might be called an “exception to the exception” to the rule governing anticipatory breach has gained further support.

H.B. 351: An Ohio Urban Economic Development Strategy For The 1980'S — Tax Incentives For Inner City Businesses, Tricia A. Suttmann

University of Dayton Law Review

No abstract provided.

The 1981 Afdc Amendments: Rhetoric And Reality, Michael Neuhardt

University of Dayton Law Review

No abstract provided.

Front Matter, Volume 8, Number 1 (Fall 1982), University Of Dayton

University of Dayton Law Review

Title page and table of contents, Volume 8, Number 1 (Fall 1982)

Chapter 13 Bankruptcy: When May A Mortgage Debtor Cure The Accelerated Mortgage Debt Using Section 1322(B)(5), Ann B. Miller

University of Dayton Law Review

No abstract provided.

The Cash Discount Act: More Than Just A Matter Of Semantics, Betsy Horkovich

University of Dayton Law Review

No abstract provided.

Constitutonal Law: Quasi-Public Institution Not Protected From Fair Labor Standards Act By State Sovereignty Claim, Richard Zorn

University of Dayton Law Review

Williams v. Eastside Mental Health Center, Inc., 669 F.2d 671 (11th Cir. 1982), cert. denied, 51 U.S.L.W. 3335 (U.S. Nov. 2, 1982) (No. 82-207).

Antitrust Law: Evaluating Franchise Tie-Ins And Territorial Restraints In Dual Distribution Systems: A Return To The Rule Of Reason, Ellen S. Leffak

University of Dayton Law Review

Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 1348 (9th Cir. 1982).

Income Tax: Crane's Footnote 37 Revived, Lee A. Kintzel

University of Dayton Law Review

Tufts v. Commissioner, 651 F.2d 1058 (5th Cir. 1981), cert. granted, 102 S. Ct. 2034 (1982).

H.B. 440: Ohio Restructures Its Juvenile Justice System, Keith R. Kearney, Steven R. Smith

University of Dayton Law Review

No abstract provided.

Bioethics And Law: Cases, Materials And Problems (By Michael H. Shapiro And Roy G. Spece Jr.), Marshall B. Kapp

University of Dayton Law Review

Much has been written concerning the desirability of teaching health profession students about bioethics, and several texts have been published to assist in that endeavor. Similarly, the virtues of including courses in medical jurisprudence in the law school curriculum have been widely accepted, and there are at least three fine casebooks in this field to which teachers and students may turn. Additionally, a number of volumes, predominantly of the anthology type, attempt to combine in one work the subjects of bioethics and the law. Some of these books may be found useful for the classroom, where increasingly these two distinct …

Collective Bargaining Agreements Without Arbitration Clauses: Does The Finality Doctrine Bar Section 301 Suits?, Ronald L. Mason

University of Dayton Law Review

A recent survey of collective bargaining agreements demonstrated that the parties to those agreements provided for a grievance procedure that included an arbitration proceeding in 96% of the cases surveyed. In this overwhelming number of cases, the employee may sue an employer for breach of contract under section 301 of the National Labor Relations Act (the Act), or follow a grievance procedure. In the latter instance, the employee is bound by the arbitration and its reward. The application of the finality doctrine to these cases is clear, fair, and established.

This is not true with respect to the remaining four …

Corporation Law: Delaware Supreme Court Exercises Its Own Business Judgment, Denise E. Griggs

University of Dayton Law Review

Zapata Corporation v. Maldonado, 430 A.2d 779 (Del. 1981).

The derivative suit is a device by which minority shareholders can enforce corporate rights that are violated by corporate management. The business judgment rule is the defense mechanism asserted by the board of directors to compel dismissal of the shareholder's suit. The continued vitality of derivative suits has been seriously threatened by state and federal decisions which have consistently upheld reliance on the business judgment rule as a grounds for disinterested directors to dismiss derivative actions they deem detrimental to the corporation.

Provided the directors do not stand in a "dual …

Loss Of Parental Society And Companionship: Infant's Action Against Person Who Negligently Injured Father, Louis R. Kindell

University of Dayton Law Review

Ferriter v. Daniel O'Connell's Sons, Inc., 413 N.E.2d 690 (Mass. 1980)

The rights of individuals to recover for nonpecuniary losses have evolved steadily since the inception of tort law. One of the first steps in this evolution was allowing recovery for loss of services under the master/servant relationship. Under this doctrine, an employer or master could recover the value of his employee's services, if lost through a defendant's tortious conduct. In order to recover, the plaintiff was required to show actual, measurable monetary loss, such as the replacement costs for his lost servant.

The master/servant analogy was later transposed upon …

Law, Medicine And Forensic Science, Third Edition (By William J. Curran And E. Donald Shapiro), Marshall B. Kapp

University of Dayton Law Review

Mention the term "health law" to the average person, including most attorneys and health professionals, and one will immediately conjure up visions of medical malpractice litigation. Private lawsuits brought by individual patients seeking monetary damages from their health care providers based on alleged breach of professional duty have been a part of this nation's legal and social landscape for a considerable time. The prosecution and defense of such claims has kept a substantial number of attorneys quite gainfully occupied. Medical malpractice continues today to be an increasingly prolific area of legal activity, owing to factors like the ever-growing organizational and …

Front Matter, Volume 7, Number 2 (1982), University Of Dayton

University of Dayton Law Review

Table of contents, Volume 7, Number 2

The Evolution Of The Prenatal Duty Rule: Analysis By Inherent Determinants, James P. Murphy

University of Dayton Law Review

Are there inherent determinants that govern basic factual situations and coalesce with them in the directed development of a rule of law? To put it another way, does a rule of law evolve? If a judge reads a number of cases with similar facts, a presently existing consciousness confronts the written material on the pages. By bringing together these cases, the reader has constellated them into an independent entity, an entity that can only be described as a kind of being. If this being is regarded, studied, perused for meaning, does it not likewise regard the reader? When the reader …

Negligence Or Scienter - The Appropriate Standard Of Liabiltiy For Outside Accountants For Misleading Proxy Statements Under Section 14(A) Of The Securities Exchange Act Of 1934, Lee A. Kintzel

University of Dayton Law Review

Should an outside accountant be held liable for negligently providing incorrect information to be included in a corporation's proxy statement in a shareholder action under section 14(a) of the Securities Exchange Act of 1934 (the 1934 Act)? Or should the plaintiff in a section 14(a) action be required to show that the accountant intended to deceive the shareholder; that is, should liability be imposed only where the accountant acted with scienter?

Section 14(a) makes it unlawful for any person to solicit proxies in violation of rules prescribed by the Securities and Exchange Commission (SEC). Rule 14a-9, implementing section 14(a), prohibits …

Environmental Law: States May No Longer Bring A Federal Common Law Nuisance Action To Abate Interstate Water Pollution, Jeffrey L. Rulon

University of Dayton Law Review

City of Milwaukee v. Illinois, 101 S.Ct. 1784 (1981).

In the landmark decision Erie Railroad v. Tomkins, the United States Supreme Court set forth the general proposition that the federal courts may not provide their own rules of decision under the guise of federal common law. Since Erie, however, in cases involving a significant federal interest, the Court has consistently backed away from this rather harsh limitation on federal judicial power. In the City of Milwaukee v. Illinois decision, the United States Supreme Court apparently came full circle, returning to its rule preventing federal courts from fashioning federal common law, …

S.B. 1: Ohio Enacts Death Penalty Statute, Anthony L. Geiger, Scott Selbach

University of Dayton Law Review

“The high service rendered by the 'cruel and unusual' punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.”

With this mandate in mind, the Ohio General Assembly returned capital punishment to the state on October 19, 1981 with the signing of Senate Bill 1 by Governor Rhodes. The bill represents Ohio's third attempt to enact a constitutionally permissible death penalty since the 1788 "Marietta Code" provided the penalty …

S.B. 269: The Impact Of Federal Legislation On Ohio's Hazardous Waste Disposal Program, Mary Jo S. Korona, Joseph G. Interlichia

University of Dayton Law Review

In 1980 the Ohio legislature enacted major hazardous waste legislation in Senate Bill (S.B.) 269. Senate Bill 269 amends and enacts new provisions of Chapter 3734 (Solid Waste Disposal) of the Ohio Revised Code and represents Ohio's efforts to create a statutory framework for a comprehensive hazardous waste management program which closely parallels the federal Resource Conservation and Recovery Act. The scope of S.B. 269, together with the regulations promulgated under it, encompasses all aspects of the activity surrounding hazardous wastes from generation to reclamation. Enactment of S.B. 269, however, raises uncertainty for both those administering the program and those …

State Court Jurisdiction Over Claims Arising Under Federal Law, Dennis L. Bailey

University of Dayton Law Review

The division of the American legal process into two complete and distinct judicial systems, state and federal, has the potential to lead and, indeed, has led to some problems and disputes between courts at the state and federal level. The recent tug-of-war between a Louisiana state judge and a United States District Judge over the custody and school for two school children in Louisiana was a much publicized case of a jurisdictional dispute. Such disputes between state and federal courts over their proper jurisdiction typically do not generate the media coverage of this Louisiana dispute and involve issues of greater …

Historic Preservation Easements: A Proposal For Ohio, Ronald H. Rosenberg, Pamela G. Jacobstein

University of Dayton Law Review

Americans have begun to recognize the importance of historically significant structures and places. Historic districts are being restored in many parts of the nation. This recognition has spawned the creation of a social value which places emphasis upon the preservation of historic properties. Historic places provide a physical link to society's cultural history — a unique and irreplaceable connection to the past. More specifically, the protection of cultural resources has social importance since it encourages increased understanding and respect for the past and provides a source of architectural beauty for the future. Governmental promotion of protective policies for historic properties, …

Ucc Section 1-207 And The Full Payment Check: The Struggle Between The Code And The Common Law - Where Do The Debtor And Creditor Fit In?, Susan Harrison Hendrick

University of Dayton Law Review

A relatively overlooked section of the Uniform Commercial Code [hereinafter U.C.C. or Code], section 1-207, which concerns performance or acceptance under reservation of rights, has recently come to the forefront and could have a profound effect on debtor-creditor relations.' The question which has arisen is whether U.C.C. section 1-207 should be applied to the full payment check, thus changing the common law doctrine of accord and satisfaction concerning the full payment check. In the context of debtor-creditor relations, disputes often arise over an amount due. For example, A and B enter into an agreement whereby A agrees to furnish certain …

Private Pensions: Erisa Permits Offsets Of Private Pension Benefits By Amounts Received In Worker's Compensation Awards, Preempting State Laws Prohibiting Such Offsets, Edward J. Dowd

University of Dayton Law Review

Alessi v. Raybestos-Manhattan, Inc., 101 S. Ct. 1895 (1981).

In response to a growing national concern over the loss of private pension benefits by employees, Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA). Congress' primary concern was correcting the inadequate vesting and funding requirements which frequently resulted in defeating retirees' post employment expectations. Through ERISA Congress sought to improve the equitable character and soundness of such plans by providing (1) nonforfeitable vested rights, (2) minimum funding requirements, and (3) termination insurance to protect retirees from insolvent employers. An additional goal of Congress was to encourage expansion of …