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Articles 1 - 30 of 30
Full-Text Articles in Law
Due Process, Judicial Review, And The Rights Of The Individual, Edward D. Re
Due Process, Judicial Review, And The Rights Of The Individual, Edward D. Re
Cleveland State Law Review
As a federal judge I fully appreciate the role of the judiciary in reviewing the actions of administrative agencies. Hence, I am pleased to discuss the concepts of due process, judicial review, and the rights of the individual. Since it cannot be questioned that public officers and administrative agencies vitally affect the lives and interests of all persons, it is important to know the legal controls and remedies that are available to assure that public officials act lawfully. This, of course, implies that all administrators and officers of government must act within the bounds of their delegated authority and comply …
The Implementation Of Bankruptcy Code Section 707(B): The Law And The Reality, Wayne R. Wells, Janell M. Kurtz, Robert J. Calhoun
The Implementation Of Bankruptcy Code Section 707(B): The Law And The Reality, Wayne R. Wells, Janell M. Kurtz, Robert J. Calhoun
Cleveland State Law Review
The introduction of section 707(b) to the bankruptcy code has raised many difficult interpretational issues. This article focuses on those issues concerning the implementation of section 707(b). Under the law, only the courts and the U.S. Trustees are permitted to raise the issue of substantial abuse. Therefore, to determine how section 707(b) is actually being administered, a survey was distributed to the U.S. Bankruptcy Courts and the U.S. Trustees. The results of the survey are integrated into a discussion of the current status of the law and presented in this article. This analysis identifies serious shortcomings with the law that …
Superfund Liability Alternatives For The Innocent Purchaser, David W. Marczely
Superfund Liability Alternatives For The Innocent Purchaser, David W. Marczely
Cleveland State Law Review
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) imposes liability for cleanup costs where there has been a release to the environment of a hazardous substance. Liability has been construed by the courts as strict, even though Congress rejected an explicit provision of strict liability. Moreover, CERCLA liability permits no defenses except those found in the Act. CERCLA provides an affirmative defense to liability actions where a third party has solely caused the release of the hazardous substance. Congress attempted to clarify the land contract issue as part of the Superfund Amendments and Reauthorization Act of 1986 …
Prescription Drugs And The Duty To Warn: An Argument For Patient Package Inserts, Alan R. Styles
Prescription Drugs And The Duty To Warn: An Argument For Patient Package Inserts, Alan R. Styles
Cleveland State Law Review
It has been more than ten years since the Food and Drug Administration proposed regulations which would have required detailed patient information for all prescription drugs. The proposed regulations, intended to promote the safe and effective use of prescription drugs, would have required a manufacturer to supply non-technical, non-promotional information, referred to as patient package inserts, directly to the patient. This note will analyze the need for patient information in satisfying the tort objectives of informed consent and public safety. The note will then analyze the practical effect of the learned intermediary and informed consent doctrines upon the manufacturer's and …
The Indeterminate Defendant In Products Liability Litigation And A Suggested Approach For Ohio, Rebecca J. Greenberg
The Indeterminate Defendant In Products Liability Litigation And A Suggested Approach For Ohio, Rebecca J. Greenberg
Cleveland State Law Review
The problems created by mass marketing, unequal bargaining power, and hidden product hazards have necessitated major changes in products liability law during the past thirty years. Correspondingly, considerations of cost reduction, injury avoidance, and fair risk distribution are generally advanced as the policies behind the widespread acceptance gained by strict liability in the 1960's. A decade later, these considerations were applied to the problem of proof of causation faced by plaintiffs who could not identify the specific defendant who caused their injuries. A limited version of this problem had been considered earlier in the seminal case of Summers v. Tice, …
Educational Malpractice: A Tort Is Born, Johnny C. Parker
Educational Malpractice: A Tort Is Born, Johnny C. Parker
Cleveland State Law Review
This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching …
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Cleveland State Law Review
This article explores the policy reasons which courts have adopted to deny a private cause of action holding educators legally liable for deficiencies in a student's education. The introductory section provides the background on the basic issue of malpractice in education. Section two examines educational malpractice case law focusing first on cases involving negligence in basic academic skill instruction, then looking at negligence in special education. Section three explores the various duty of care arguments while section four discusses three alternate theories for recovery. Section five analyzes the policy reasons for denial of the tort of educational malpractice. New directions …
The Supreme Court Drops The Ball In The N.F.L. Player Dispute, Eric E. Bell
The Supreme Court Drops The Ball In The N.F.L. Player Dispute, Eric E. Bell
Cleveland State Law Review
The purpose of this article is to offer guidance to courts and attorneys faced with the issue of determining the point in time that the non-statutory labor exemption terminates in the context of NFL labor relations and to propose a system of free agency which might ease this conflict between the League and players. To that end, this article begins by exploring the history of player relations in the NFL, the development of the Union and the subsequent collective bargaining agreements between the Players Association and the League. This is followed by an in-depth analysis of Powell v. NFL and …
Genetically Altered Admissibility: Legislative Notice Of Dna Typing, Jayne L. Jakubaitis
Genetically Altered Admissibility: Legislative Notice Of Dna Typing, Jayne L. Jakubaitis
Cleveland State Law Review
This note examines the conflict over acceptance of DNA evidence. Part I discusses the process of DNA typing as a form of scientific evidence and the courts' responses to this novel technique. Part II examines the legislative responses to DNA typing. Part III explores the potential impact of the admissibility statutes both on the courts and on the accused. Finally, Part IV suggests areas of legislative regulation which may aid in resolving the current difficulties of DNA typing.
From Class Actions To Miss Saigon: The Concept Of Representation In The Law, Martha L. Minow
From Class Actions To Miss Saigon: The Concept Of Representation In The Law, Martha L. Minow
Cleveland State Law Review
The representation debates over casting "Miss Saigon" and law school faculties reflect the prevalence of contemporary assumptions about group differences. They reflect arguments made on behalf of historically excluded groups that group membership serves as a proxy for shared experiences and especially common experiences as victims of societal prejudice. Opponents, styled as defenders of neutrality, resist such arguments because they undermine the commitment to treating individuals as individuals. Maybe we can understand the debates better by seeing connections to deeper confusions about the concept of representation throughout our society, made especially vivid in legal and political contexts. If treated as …
Section 1983 And The Parratt Doctrine After Zinermon V. Burch: Ensuring Due Process Rights Or Turning The Fourteenth Amendment Into A Font Of Tort Law, Paul F. Wingenfeld
Section 1983 And The Parratt Doctrine After Zinermon V. Burch: Ensuring Due Process Rights Or Turning The Fourteenth Amendment Into A Font Of Tort Law, Paul F. Wingenfeld
Cleveland State Law Review
Over the last thirty years, the Court has decided a number of cases which illustrate an on-going struggle to find the proper place for section 1983 in the federal court system and, consequently, what ultimately qualifies as adequate procedural due process within the context of the statute. This note will examine the history of Court decisions involving section 1983 in order to provide the proper background for examining the Court's most recent decision in Zinermon v. Burch, a case which itself has added to an already confusing field of legal study. Within this historical background, however, the Court has actually …
Indian Law And The Miner's Canary: The Signs Of Poison Gas, Rennard Strickland
Indian Law And The Miner's Canary: The Signs Of Poison Gas, Rennard Strickland
Cleveland State Law Review
In this fiftieth Cleveland-Marshall lecture I want us to look at some present day examples of Felix Cohen's contention that our treatment of Indians - Indian law itself - acts as a barometer, a miner's canary for society. I want to do this by first looking in detail at the Wisconsin Indian Fishing Rights question and then very briefly at several recent Supreme Court cases in the field of Indian Law particularly the Smith and Duro cases. I believe they do not bode well for any of us. In this brief time I have tried to cover too much but …
Evaluation Of Recycling Legislation Pending Before The 119th Session Of The Ohio General Assembly, Christopher D. Knopf
Evaluation Of Recycling Legislation Pending Before The 119th Session Of The Ohio General Assembly, Christopher D. Knopf
Cleveland State Law Review
This Article summarizes and analyzes the recycling bills before the 119th Session of the Ohio General Assembly. Part I of this Article reviews the requirements and recommendations of H.B. 592 and the State Plan. Part II provides an overview of the recycling bills and identifies the three basic approaches to recycling represented by these bills. Parts III, IV, V, and VI summarize and evaluate the recycling bills. This Article uses three criteria to evaluate the recycling bills: (1) consistency with H.B. 592 and the State Plan, (2) effectiveness in preventing the disposal of solid waste in landfills, and (3) efficiency …
Osha Criminal Penalty Reform Act: Workplace Safety May Finally Become A Reality, Timothy G. Gorbatoff
Osha Criminal Penalty Reform Act: Workplace Safety May Finally Become A Reality, Timothy G. Gorbatoff
Cleveland State Law Review
Present criminal penalty provisions under the Occupational Safety and Health Act are outdated and inadequate. They provide no meaningful deterrent to potential violators of workplace safety and health standards. This Note is written to assist the reader in understanding the statutory barriers which have hindered criminal enforcement of the OSH Act, and how the OSHA Criminal Penalty Reform Act breaks down these barriers to provide for a more effective criminal penalty structure. It begins with a brief history behind the enactment of the OSH Act and its enforcement record since 1970. Section III moves to a discussion of enhanced criminal …
Jury Waiver In Capital Cases: An Assessment Of The Voluntary, Knowing, And Intelligent Standard, Paul Mancino Iii
Jury Waiver In Capital Cases: An Assessment Of The Voluntary, Knowing, And Intelligent Standard, Paul Mancino Iii
Cleveland State Law Review
This Note analyzes both the federal and various state standards as to what constitutes a voluntary, knowing, and intelligent waiver of trial by jury in capital cases. Through this analysis it will become apparent that the various standards among the different jurisdictions of a voluntary, knowing, and intelligent waiver are marked with disparity. This Note also argues that the jury waiver statutes in many jurisdictions fail to provide enough information for the capital defendant to make a voluntary, knowing, and intelligent waiver of the right to trial by jury while cognizant of the relevant circumstances and likely consequences. This deficiency …
From Hannola To Albain: The Rise And Fall Of Ohio's Hospital Agency By Estoppel Doctrine, David J. Wigham
From Hannola To Albain: The Rise And Fall Of Ohio's Hospital Agency By Estoppel Doctrine, David J. Wigham
Cleveland State Law Review
The role of the hospital in the field of medicine has evolved significantly in recent decades. Now hospitals privately distance themselves as far as possible from the acts of the negligent physician. Courts have intervened in recent years and expanded the scope of vicarious hospital liability. This Note will begin with a brief history of vicarious hospital liability. Next, it will examine the elements of two doctrines which are being used to impute such liability to hospitals - agency by estoppel and ostensible agency - and determine how each has been applied by courts across the nation to the hospital …
From Class Actions To Miss Saigon: The Concept Of Representation In The Law, Martha L. Minow
From Class Actions To Miss Saigon: The Concept Of Representation In The Law, Martha L. Minow
Cleveland State Law Review
The representation debates over casting "Miss Saigon" and law school faculties reflect the prevalence of contemporary assumptions about group differences. They reflect arguments made on behalf of historically excluded groups that group membership serves as a proxy for shared experiences and especially common experiences as victims of societal prejudice. Opponents, styled as defenders of neutrality, resist such arguments because they undermine the commitment to treating individuals as individuals. Maybe we can understand the debates better by seeing connections to deeper confusions about the concept of representation throughout our society, made especially vivid in legal and political contexts. If treated as …
Workers' Compensation And Company Sponsored Events: The High Cost Of Employee Morale, Christine L. Sommer
Workers' Compensation And Company Sponsored Events: The High Cost Of Employee Morale, Christine L. Sommer
Cleveland State Law Review
This note explores an employer's potential liability when a worker is injured at a company sponsored event. Part two briefly outlines the history of workers' compensation law placing particular emphasis on the public policies that gave rise to implementation of the workers' compensation system. Part three analyzes workers' compensation statutes, examines the tests used to determine compensability and discusses the effect of exclusive remedy provisions on a worker's tort recovery. The last section discusses the methods used to determine whether injury sustained at a company sponsored event falls within workers' compensation statutes. It asks whether workers' compensation statutes are equipped …
Educational Malpractice: A Tort Is Born, Johnny C. Parker
Educational Malpractice: A Tort Is Born, Johnny C. Parker
Cleveland State Law Review
This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching …
Genetically Altered Admissibility: Legislative Notice Of Dna Typing, Jayne L. Jakubaitis
Genetically Altered Admissibility: Legislative Notice Of Dna Typing, Jayne L. Jakubaitis
Cleveland State Law Review
This note examines the conflict over acceptance of DNA evidence. Part I discusses the process of DNA typing as a form of scientific evidence and the courts' responses to this novel technique. Part II examines the legislative responses to DNA typing. Part III explores the potential impact of the admissibility statutes both on the courts and on the accused. Finally, Part IV suggests areas of legislative regulation which may aid in resolving the current difficulties of DNA typing.
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Cleveland State Law Review
This article explores the policy reasons which courts have adopted to deny a private cause of action holding educators legally liable for deficiencies in a student's education. The introductory section provides the background on the basic issue of malpractice in education. Section two examines educational malpractice case law focusing first on cases involving negligence in basic academic skill instruction, then looking at negligence in special education. Section three explores the various duty of care arguments while section four discusses three alternate theories for recovery. Section five analyzes the policy reasons for denial of the tort of educational malpractice. New directions …
The Matrix Of The Common Law, George L. Haskins
The Matrix Of The Common Law, George L. Haskins
Cleveland State Law Review
Great men have admonished us never to forget the continuing relevance of history in the Anglo-American legal system. We are cautioned to remember that the highly individualistic character of much of our law is explained by its Germanic rather than its Roman roots and, further, that the Anglo-American system has built upon countervailing concepts of relationships which are feudal in origin, and to which rights and duties attach without regard to the will of individuals, which is the underlying principle of classical Roman law. Thus, in our law, powers, rights, and duties stem from relationships such as principal-agent, vendor-purchaser, landlord-tenant …
The Supreme Court Drops The Ball In The N.F.L. Player Dispute, Eric E. Bell
The Supreme Court Drops The Ball In The N.F.L. Player Dispute, Eric E. Bell
Cleveland State Law Review
The purpose of this article is to offer guidance to courts and attorneys faced with the issue of determining the point in time that the non-statutory labor exemption terminates in the context of NFL labor relations and to propose a system of free agency which might ease this conflict between the League and players. To that end, this article begins by exploring the history of player relations in the NFL, the development of the Union and the subsequent collective bargaining agreements between the Players Association and the League. This is followed by an in-depth analysis of Powell v. NFL and …
Unknown Effects Of Wood V. Shepard On Uninsured And Underinsured Motorist Coverage In Ohio, Gary D. Plunkett
Unknown Effects Of Wood V. Shepard On Uninsured And Underinsured Motorist Coverage In Ohio, Gary D. Plunkett
Cleveland State Law Review
The Ohio Supreme Court in Wood v. Shepard had occasion to interpret Ohio's wrongful death statute in conjunction with Ohio's uninsured and underinsured motorist statute (UUM). The court held that the wrongful death of an insured creates separate claims that are not subject to a single person limit of liability in the deceased insured's UUM coverage. Wood is a nebulous decision. It overcompensates the deceased insured's surviving family members and turns the deceased insured's UUM coverage into a bottomless well from which the surviving family members may draw compensation. The full effect of Wood is yet unknown. What is known, …
The Application And Misapplication Of Ohio Rule Of Civil Procedure 54(B), Diane S. Leung
The Application And Misapplication Of Ohio Rule Of Civil Procedure 54(B), Diane S. Leung
Cleveland State Law Review
The rules of civil procedure, seemingly straightforward, can be misinterpreted due to attorney inattentiveness. One rule which has suffered and still is suffering from misinterpretation and misapplication is Ohio Rule of Civil Procedure 54(B), judgment upon multiple claims or involving multiple parties, the subject of this note. The following discussion, an analysis of Rule 54(B), will attempt to accomplish several tasks. First, the note will briefly describe the history, nature, and purpose of the rule. Secondly, it will analyze the major aspects and requirements of Rule 54(B). The analysis will emphasize the facets of the rule which have often been …
The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams
The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams
Cleveland State Law Review
Venue in federal cases is controlled by the general venue statute unless there exists an applicable special venue statute that attaches to the particular cause of action under consideration. This note is concerned with the section of the general venue statute applicable to corporate defendants and its interaction with the special venue statute for civil actions in patent infringement cases ("patent venue statute"). As a first step in the discussion of venue, it is necessary to go back in history over 200 years. This note reviews the history of venue, both generally and in cases of patent infringement, the historical …
Section 1983 And The Parratt Doctrine After Zinermon V. Burch: Ensuring Due Process Rights Or Turning The Fourteenth Amendment Into A Font Of Tort Law, Paul F. Wingenfeld
Section 1983 And The Parratt Doctrine After Zinermon V. Burch: Ensuring Due Process Rights Or Turning The Fourteenth Amendment Into A Font Of Tort Law, Paul F. Wingenfeld
Cleveland State Law Review
Over the last thirty years, the Court has decided a number of cases which illustrate an on-going struggle to find the proper place for section 1983 in the federal court system and, consequently, what ultimately qualifies as adequate procedural due process within the context of the statute. This note will examine the history of Court decisions involving section 1983 in order to provide the proper background for examining the Court's most recent decision in Zinermon v. Burch, a case which itself has added to an already confusing field of legal study. Within this historical background, however, the Court has actually …
The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams
The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams
Cleveland State Law Review
Venue in federal cases is controlled by the general venue statute unless there exists an applicable special venue statute that attaches to the particular cause of action under consideration. This note is concerned with the section of the general venue statute applicable to corporate defendants and its interaction with the special venue statute for civil actions in patent infringement cases ("patent venue statute"). As a first step in the discussion of venue, it is necessary to go back in history over 200 years. This note reviews the history of venue, both generally and in cases of patent infringement, the historical …
Antitrust Damages For Consumer Welfare Loss, David C. Hjelmfelt, Channing D. Strother Jr.
Antitrust Damages For Consumer Welfare Loss, David C. Hjelmfelt, Channing D. Strother Jr.
Cleveland State Law Review
Section 4 of the Clayton Act provides that any person who is injured in his business or property by reason of anything forbidden in the antitrust laws "shall recover threefold the damages by him sustained." The current private enforcement model usually permits plaintiffs to recover damages based upon the excessive prices charged to consumers. However, economists see the real loss to society from an antitrust violation to be the consumer welfare loss which results from reduced output. The authors have been unable to locate any antitrust case which has permitted recovery of damages for this consumer welfare loss. Therefore, this …
At What Cost Will The Court Impose A Duty To Preserve The Life A Child, David S. Lockemeyer
At What Cost Will The Court Impose A Duty To Preserve The Life A Child, David S. Lockemeyer
Cleveland State Law Review
The purpose of this Note is to explore the issues surrounding parental consent for a surgical invasion of one child to save the life of a sibling. This Note focuses on the courts role in permitting organ transplantation. In addition, it will discuss the new developments in medical science regarding living donors and the concept of transplantation of regenerative organs and the possible impact on the court. Next, this Note analyzes the elements of duty to rescue, best interest and substituted judgment and the court's use of the various tests to justify invasion of a child's body. This Note examines …