Law Commons^™

Artis V. District Of Columbia—What Did The Court Actually Say?, Doron M. Kalir

Law Faculty Articles and Essays

On January 22, 2018, the Supreme Court issued Artis v. District of Columbia. A true "clash of the titans," this 5-4 decision featured colorful comments on both sides, claims of "absurdities," uncited use of Alice in Wonderland vocabulary ("curiouser," anyone?), and an especially harsh accusation by the dissent that "we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place."

One might assume that the issue in question was a complex constitutional provision, or a dense, technical federal code …

Constitutional Revision: Ohio Style, Steven H. Steinglass

Law Faculty Articles and Essays

This Article looks at state constitutional law in a single state—Ohio—and focuses on the history of constitutional revision in it. Consistent with the Symposium’s theme of popular constitutionalism, the Article reviews the expansion—albeit the slow expansion—of the groups that were permitted to participate in the political process in Ohio as well as the expansion and use of the tools available to those seeking constitutional change. As for the substantive constitutional changes that have taken place in Ohio, the Article reviews them summarily, primarily to put the topic of constitutional revision in context.

To understand constitutional revision in a single state, …

Evictions, Aspiration And Avoidance, Brian E. Ray

Law Faculty Articles and Essays

In December 2011 four of the Constitutional Court’s five socio-economic rights cases turned on evictions.2 The Court decided three eviction-related cases in the 2012 term and two more in 2013.3 For a Court that averages fewer than 30 decisions per term 10 decisions in less than two and a half years is an extraordinary level of attention devoted to a single area of constitutional law.4 Does this sustained attention to eviction cases harbinger a significant development in the Court’s approach to the right to housing in FC s 26 and to socio-economic rights more generally? The cases provide some evidence …

Courts, Capacity And Engagement: Lessons From Hlophe V. City Of Johannesburg, Brian E. Ray

Law Faculty Articles and Essays

The case was one of the first applying the Constitutional Court’s holding in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another, (2) BCLR 150 (CC) (1 December 2011) (Blue Moonlight) that municipalities have an independent obligation to plan and budget for the emergency accommodation needs of people evicted from private property. The City also was the defendant in that case, and so its repeated failures to accommodate the occupants in Hlophe demonstrated a broader failure to implement the planning, budget and policy requirements that flowed from Blue Moonlight. Judge Satchwell recognised this and issued …

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl

Law Faculty Articles and Essays

This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and …

The Standing And Removal Decisions From The Supreme Court's 2006 Term, Steven H. Steinglass

Law Faculty Articles and Essays

This article reviews some of the more important jurisdictional decisions of the U.S. Supreme Court during the court's 2006-07 term, the first full term that included both of the court's newest justices--Chief Justice John G. Roberts Jr. and Associate Samuel A. Alito Jr. The term begins an era that will likely become known as the Roberts Court, but this term surely belonged to Associate Justice Anthony M. Kennedy, who cast the deciding vote in all 24 of the court's 5-4 decisions.

The Constitutional Significance Of Forgotten Presidents , Michael J. Gerhardt

Cleveland State Law Review

My hope is to clarify the forgotten constitutional legacies of a number of American Presidents. This is only a small sliver of constitutional law, but not an insignificant one at that. My aim is to examine how the Presidents we commonly dismiss as constitutionally insignificant actually helped to shape the future of constitutional law. How these Presidents (and their administrations) exercised power, even for as short a time as William Henry Harrison, changed the constitutional landscape. I do not intend to make the case for rating these Presidents higher than historians or others usually do or for overstating what they …

Foreword: The Ohio Constitution On The Occasion Of Its Bicentennial, Kevin F. O'Neill

Law Faculty Articles and Essays

This symposium issue of the Cleveland State Law Review publishes the papers that were presented at a conference marking the bicentennial of the Ohio Constitution. That conference, held here at Cleveland-Marshall College of Law in April 2003, examined the history and assessed the vitality of our state constitution. The conference was conceived and its planning was supervised by our Dean, Steven H. Steinglass, who has devoted significant scholarly attention to the Ohio Constitution. In light of my own endeavors in state constitutional law, both as a lawyer and as a scholar, I gladly assisted Dean Steinglass in organizing the conference. …

Constitutional Classifications And The "Gay Gene", Susan J. Becker

Law Faculty Articles and Essays

In this essay the author discusses the use of genetic information to classify individuals for purposes of the law, and more specifically, the impact of the so-called “gay gene” on legal classifications.

The Unconstitutionality Of Eliminating Estate And Gift Taxes, James G. Wilson

Law Faculty Articles and Essays

The recent proposal to eliminate estate and gift taxes is not only immoral and a poor allocation of resources, but also is unconstitutional. Irrespective of their ideology, virtually all American lawyers will initially dismiss this accusation as frivolous because it conflicts with their tradition of equating conceptions of "constitutionality" with United States Supreme Court opinions. The Court has long been highly deferential to Congress in federal tax law cases. It is inconceivable that the current Court would find anything "irrational" in a facially neutral law eliminating all estate and gift taxes. Indeed, if I sat on that bench, I would …

Why A Fundamental Right To A Quality Education Is Not Enough, James G. Wilson

Law Faculty Articles and Essays

This article relies upon the political and economic analysis of such great thinkers as Aristotle and Rousseau to understand and normatively evaluate constitutional caselaw in general and education cases in particular. The article's title contains its conclusion: a judicially created right to a quality education is a laudable, but possibly counterproductive and definitely insufficient condition, for creating a humane constitutional system. The rest of society needs to do far more to protect the average citizen and worker from the ever-ravenous ruling class. All the edification in the world will not mean much if there are only a few decent jobs …

Decide The Law, Clearly - A Reply To Judge Bettman, Ben Glassman

Cleveland State Law Review

The Honorable Marianna Brown Bettman’s dilemma is roughly this: if a clause of a state constitution is worded similarly to a clause in the federal Constitution, how can a state court develop constitutional law? But in important respects, Judge Bettman's question reflects a misunderstanding of the law. This misunderstanding prevents her from identifying what is really at stake in cases like the one she describes. Judge Bettman seems to have misread Michigan v. Long. The Long Court laid out a clear test for determining the Supreme Court's appellate jurisdiction over state cases where the grounds-federal or state-of the state court's …

Prosecution Of Christian Scientists: A Needed Protection For Children Or Insult Added To Injury, Daniel Vaillant

Cleveland State Law Review

A young child is dead. The death occurred because the parents refused to take their child to a doctor. Now, ordinarily, this refusal to obtain medical attention for a dying child would result in immediate indictments against the parents for involuntary manslaughter. But what if the parents are Christian Scientists? This question of whether Scientists should be treated differently because of their faith is a very controversial one in America today. If we allow the Scientists to practice their religion without government interference, children who could be medically treated and possibly saved may die. If, on the other hand, we …

Extending Copyright And The Constitution: "Have I Stayed Too Long", Michael H. Davis

Law Faculty Articles and Essays

On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (hereinafter the “Bono Law”). The Bono Law extended the term of copyright protection by an additional twenty years, both prospectively and retrospectively. The former is probably constitutionally proper; the latter is almost certainly forbidden by the Constitution's copyright clause. But most criticism5 has not forcefully distinguished between retrospective as opposed to prospective extension and so far has failed to convince either Congress or the courts of any constitutional infirmity. This is because most critics agree-or …

Salvaging The Communications Decency Act In The Wake Of Aclu V. Reno And Shea V. Reno, Rebecca J. Dessoffy

Cleveland State Law Review

Hundreds of Worldwide Web site providers blackened their pages for forty-eight hours to protest the enactment of the Communications Decency Act of 1996 ("CDA"). The CDA regulates the transmission of sexually explicit material, both obscene and indecent, over the Internet. The CDA protesters claimed the law, designed to protect children, impermissibly infringes on adults' First Amendment rights to send and receive sexually explicit material. This note begins by exploring the challenged provisions of the CDA and the positions of those parties who opposed the CDA in the federal district court declaratory judgment actions. Next, the note examines applicable case precedent …

Ohio Tort Reform Versus The Ohio Constitution, Stephen J. Werber

Law Faculty Articles and Essays

Ohio tort law is about to be changed in a dramatic and comprehensive manner. House Bill 350 will be enacted as a major piece of tort reform legislation with provisions substantially like those discussed herein. The vast majority of this legislative change is directed to areas of the law in need of change and the restoration of balance. Most of the proposed changes either raise no constitutional concerns or should be deemed in compliance with the Ohio Constitution. In a few areas, most notably statutes of repose and limitations on damages, the governmental need is weak, the effect drastic, and …

Commentary: Noam Chomsky And Judicial Review, James G. Wilson

Law Faculty Articles and Essays

Although Chomsky has never discussed judicial review in any detail, he recently made several interesting observations. He believes America's governmental structure remains acceptable, even desirable, even though all three federal branches have not just failed to protect us from private power's excesses but instead have devoted far too much of their energy and power to enhancing private power. The constitutional text creates a unique relationship between the Supreme Court and private power. Because the Court is staffed by unelected Justices who need not pander for money to be reelected, it is more independent of the rich and powerful than either …

The Constitutional Dimension Of A National Products Liability Statute Of Repose, Stephen J. Werber

Law Faculty Articles and Essays

Constitutional issues arise in regard to many aspects of tort and products liability reform legislation. This article argues that statutes of repose are unconstitutional, with emphasis on open courts or right to remedy (open courts) and equal protection provisions. These issues reflect economic concerns at both federal and state legislative levels that seek to advance strongly perceived public policy. These concerns, in turn, affect substantial substantive rights. Freedom from personal injury, the right to life and safety, reflects more than the mere economic concerns of either the injured party or the product manufacturer. The ability to seek redress for such …

The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill

Law Faculty Articles and Essays

Lawyers seeking constitutional protection for reproductive rights have relied almost exclusively on a liberty/privacy theory under the Federal Constitution. In the wake of Planned Parenthood of Southeastern Pennsylvania v. Casey, this theory may be seen as providing a floor of minimum protection-preventing states from banning abortion outright. But it is not strong enough to prevent states from enacting restrictions on the availability of abortion. Thus, the battle over reproductive rights may be seen as shifting from one phase ("Can abortion be banned?") to another ("How far can states go in restricting access to abortion'?"). If proponents of reproductive freedom are …

The Role Of Public Opinion In Constitutional Interpretation, James G. Wilson

Law Faculty Articles and Essays

This Article seeks to answer two questions. First, to what degree has public opinion influenced American constitutional interpretation, both on and off the Supreme Court, over the past two centuries? Second, how much weight, if any, should constitutional decision-makers give to public opinion, however that protean concept is defined? The Article initially places these queries in a contemporary context by considering the extended discussion of public opinion in the Planned Parenthood v. Casey opinions of Justice Souter, Chief Justice Rehnquist, and Justice Scalia. Justice Souter partially relied on public opinion to not overrule the constitutional right to an abortion created …

American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine And Public Opinion To Regulate Political Behavior, James G. Wilson

Law Faculty Articles and Essays

The concept of nonjusticiability, reflected primarily through the “political question” and the “standing” doctrines, fails to give the Supreme Court (and the rest of us) adequate guidance on how to resolve many constitutional disputes, such as impeachment procedures and standards, congressional expulsions, the scope of federal court jurisdiction, and the use of force abroad. These two doctrines put the Supreme Court on the horns of a false dichotomy. The Court tends to withdraw completely from an issue and from enforcing a textual passage, such as the Republican Guarantee Clause, whenever it makes a determination of nonjusticiability. Conversely, once the Court …

Transcending Conventional Supremacy: A Reconstruction Of The Supremacy Clause, S. Candice Hoke

Law Faculty Articles and Essays

Perhaps because the predominant strands of contemporary Supremacy Clause jurisprudence originate in two of the most venerable cases in the Court's history, the Court and academics alike have sidestepped some of their problematic pronouncements. In Part I, this Article questions the legacy of McCulloch v. Maryland and Gibbons v. Ogden, finding their Supremacy Clause principles unacceptably nationalistic and hence unfaithful to the balance of the Constitution. While their centralizing tendencies may have been understandable during the nation's infancy, their raison d'être has evaporated; the pendulum of state versus national regulatory power on matters other than individual liberties has swung too …

The Tax Court, Article Iii, And The Proposal Advanced By The Federal Courts Study Committee: A Study In Applied Constitutional Theory, Deborah A. Geier

Law Faculty Articles and Essays

Spurred by the report issued by the Federal Courts Study Committee, this article explores the constitutionality of the Tax Court as an Article I court.

Reconstructing Section Five Of The Fourteenth Amendment To Assist Impoverished Children, James G. Wilson

Law Faculty Articles and Essays

Liberal lawyers encounter grim alternatives caused by the Supreme Court's relentless shift to the right, particularly if they consider stare decisis a major constitutional value. They can attack specific decisions, demonstrating inconsistencies with prior cases, conclusory reasoning and/ or poor policy. They can use history, jurisprudence or even literature to make broad-based critiques of the Court's increasing callousness. They can propose counter-doctrine which is consistent with existing caselaw. The third response may appear quixotic, even naive, given the present Court. Nevertheless, exploration of progressive alternatives illuminates existing doctrine and provides potential openings if the Court ever decides to become more …

Altered States: A Comparison Of Separation Of Powers In The United States And In The United Kingdom, James G. Wilson

Law Faculty Articles and Essays

This Article initially will compare the United States Constitution and the British constitution both to evaluate Young, Morrison, and Misretta, and to develop a sounder approach to all structural issues. Comparative constitutional law provides some of the "experience" needed to decide abstract structural cases. Predicting the reverberations of a proposed change within a system will be easier if one has studied how similar alterations have affected similar organizations. The British constitution is particularly germane because it was a model for the American Constitution. The two countries have a shared legal tradition and frequently generate similar positive law. The British constitution …

A Bibliography On Drug Testing In The Workplace, Stephen Young, Elizabeth Armitage

Journal of Law and Health

The following bibliography on mandatory drug testing has been compiled to accompany the Symposium on Drug Testing in the Workplace presented by the Journal of Law and Health on November 21, 1986, at the Cleveland Marshall College of Law. It is hoped that this bibliography will benefit not only legal educators and law students, but also the practicing attorney, librarians, employers and employees in the private and public sector, and those whose research and interests require an understanding of the issues raised by this subject.

The Flag Salute Cases And The First Amendment, Stephen W. Gard

Law Faculty Articles and Essays

The flag salute cases have been a source of endless fascination for legal and historical scholars. Most of this large body of scholarship has focused on the apparent oddity of Justice Frankfurter's view that there was no constitutional infirmity in the "petty tyranny" of a governmental requirement that school children engage in a hypocritical affirmation of belief. Unfortunately, the doctrinal importance of the opinions of Justices Jackson and Frankfurter in the flag salute cases as contrasting statements on the interpretation of the freedom of speech guarantee of the first amendment and the function of the judiciary in preserving our most …

Book Review, Stephen W. Gard

Law Faculty Articles and Essays

The author reviews Justice Hugo Black and the First Amendment, edited by Everette E. Dennis, Donald M. Gillmor and David L. Grey.

Cincinnati V. Hoffman: A Critical Analysis Of The Constitutionality Of A Municipal Disorderly Conduct Ordinance, Diane Williams Shelby

Cleveland State Law Review

Case comment on Cincinnati v. Hoffman.

Trafficante V. Metropolitan Life Ins. Co. - White Ghetto Tenants - Standing To Protest Landlord's Rental Discrimination, Rosalee Chiara

Cleveland State Law Review

The Supreme Court in Trafficante v. Metropolitan life Insurance Co. has held that tenants having standing under Tile VIII of the 1968 Civil Rights Act, 42 U.S.C. §3610(a), §3610(d) and 42 U.S.C. §19824 to sue their landlord for its alleged discriminatory rental practices.5 Plaintiffs, one black and one white, were tenants of an apartment complex in San Francisco whose tenant population of approximately 8,200 people was less than one percent black. The complaint alleged a variety of discriminatory rental practices directed toward non-white rental applicants and stated that plaintiffs had been injured in three respects. They claimed that they had …