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Articles 1 - 30 of 40
Full-Text Articles in Law
The Recent Respectability Of Summary Judgments And Directed Verdicts In Intentional Age Discrimination Cases: Adea Case Analysis Through The Supreme Court's Summary Judgment Prism, Frank J. Cavaliere
The Recent Respectability Of Summary Judgments And Directed Verdicts In Intentional Age Discrimination Cases: Adea Case Analysis Through The Supreme Court's Summary Judgment Prism, Frank J. Cavaliere
Cleveland State Law Review
The purpose of this Article is to review recent Supreme Court "guidance" on standards for summary judgment and directed verdict and the effect these decisions are having upon ADEA cases.
Rethinking Venue In Light Of The Rodney King Case: An Interest Analysis, Marvin Zalman, Maurisa Gates
Rethinking Venue In Light Of The Rodney King Case: An Interest Analysis, Marvin Zalman, Maurisa Gates
Cleveland State Law Review
This article analyzes the California Court of Appeals decision in Powell v. Superior Court of Los Angeles County that issued a writ of mandate on pretrial appeal directing the trial judge to order a defense motion for change of venue. The premise of the article is that the decision was inadequate in significant ways and concludes that the court of appeals improperly exercised its discretion. The venue in the "Rodney King" case properly belonged in Los Angeles County. Two broad lines of reasoning supporting this conclusion are offered. First, as discussed in Part II, the reasoning of Powell was wanting. …
Symposium: The Americans With Disabilities Act - Introductory Comments, Dawn V. Martin
Symposium: The Americans With Disabilities Act - Introductory Comments, Dawn V. Martin
Journal of Law and Health
Each of the articles included in this symposium summarizes the ADA and details the particular provisions of the Act which pertain to its thesis. Therefore, I will only briefly outline the Act's major provisions and implications for the purposes of this introductory discussion.
The Ada And Persons With Mental Disabilities: Can Sanist Attitudes Be Undone, Michael L. Perlin
The Ada And Persons With Mental Disabilities: Can Sanist Attitudes Be Undone, Michael L. Perlin
Journal of Law and Health
This leads to my thesis. What I call "sanist" attitudes and "pretextual" judicial and legislative reactions dominate social and legal discourse about mentally ill persons (and those so perceived). These attitudes affect and infect interpersonal relationships, social, cultural and political actions, judicial decisions, legislative enactments, scholarly writings, administrative rulings, and litigation strategies. They largely operate on an unconscious (and often invisible) level, and are frequently found in the writings and public pronouncements of otherwise "liberal" or "progressive" individuals. They are also rationalized through the non-reflective use of a false kind of "ordinary common sense" (OCS) and through the use of …
And Equal Participation For All...The Americans With Disabilities Act In The Courtroom, Keri K. Gould
And Equal Participation For All...The Americans With Disabilities Act In The Courtroom, Keri K. Gould
Journal of Law and Health
This article hopes to encourage the use of the ADA as a mechanism to increase courtroom accessibility to people with disabilities. The article proceeds in the following manner. Initially, I outline the procedural history and design of the Act. Then, in Part III, I discuss how the ADA seeks to ensure the increased participation of persons with disabilities in courtroom practices and procedures. In Part IV, I discuss the Act's Title II, Public Services, which controls access to and accommodations by the state courts. Next, I trace the discrimination frequently faced by persons with disabilities, which is illustrated by a …
Senate Bill 1, Ohio's Advance Directives Law: Where Have We Been...Where Are We Going?, Jean M. Hillman
Senate Bill 1, Ohio's Advance Directives Law: Where Have We Been...Where Are We Going?, Jean M. Hillman
Journal of Law and Health
This article will discuss in part II, the pertinent case history in Ohio and in other jurisdictions which built the foundation for advance directive legislation in Ohio. Part III will review the legislative history which led to the passage of Senate Bill 1; and Part IV will discuss how Senate Bill 1 interacts with the Federal Patient Self-Determination Act which went into effect on December 1, 1991. Part V will analyze how the implementation of Senate Bill 1 has affected doctors, nurses and health care facilities. Finally, Part VI will cover how information about advance directives is being disseminated to …
Effectively Implementing Title 1 Of The Americans With Disabilities Act For Mentally Disabled Persons: A Therapeutic Jurisprudence Analysis, Deborah A. Dorfman
Effectively Implementing Title 1 Of The Americans With Disabilities Act For Mentally Disabled Persons: A Therapeutic Jurisprudence Analysis, Deborah A. Dorfman
Journal of Law and Health
This article discusses the potential impact that Title I has on the lives of individuals with mental disabilities and methods by which it can be most effectively implemented and enforced. The following section discusses the potential impact that Title I can have on the lives of the mentally disabled, specifically in the areas of independent living and quality of life. Part III will examine problems enforcing Title I which interfere with the ability of the mentally disabled to fully benefit from the statute. The second half of this article discusses how to best implement and enforce Title I from a …
The Use Of Interpreters For The Deaf And The Legal Community's Obligation To Comply With The A.D.A., Jo Anne Simon
The Use Of Interpreters For The Deaf And The Legal Community's Obligation To Comply With The A.D.A., Jo Anne Simon
Journal of Law and Health
Title II of the ADA, which most closely resembles section 504 of the Rehabilitation Act of 1973, requires that state and local government facilities, including courts, be accessible to individuals with disabilities. Title III of the Act requires that public accommodations be accessible to persons with disabilities. The Act specifically includes attorney's offices in its definition of public accommodation. Title II and III of the Act require that reasonable accommodations be provided to qualified persons with disabilities, unless such provision would fundamentally alter the goods, services or programs provided. Reasonable accommodations can take the form of auxiliary aids and services, …
Much Ado About Nothing - The Supreme Court Still Fails To Solve The General Acceptance Problem Regarding Expert Testimony And Scientific Evidence , Joseph B. Spero
Much Ado About Nothing - The Supreme Court Still Fails To Solve The General Acceptance Problem Regarding Expert Testimony And Scientific Evidence , Joseph B. Spero
Journal of Law and Health
This paper will discuss and analyze the problem of scientific evidence and expert testimony from Frye v. United States to the new grounds for admissibility established by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc. This note will specifically focus on some of the changes made by the courts to the common law rule and follow its transformation to a more liberal standard within the federal court system. The paper will conclude that the courts have not really changed their position on the admissibility of scientific evidence and that their current criteria still are …
Harmful Use And The Takings Clause In The Eye Of The Beholder: Lucas V. South Carolina Coastal Council, Charles H. Clarke
Harmful Use And The Takings Clause In The Eye Of The Beholder: Lucas V. South Carolina Coastal Council, Charles H. Clarke
Cleveland State Law Review
Whichever of these two possibilities prevails, both possibilities require the courts to perform essentially legislative functions regardless, in other words, of whether public ecological resources receive insufficient or ample protection from private enterprise that wants to consume them. The traditional Takings Clause precedents, on the other hand, would give public ecological resources and private property ample protection with minimum judicial oversight. The traditional position seems preferable for this reason.
Developing A New Constitution For Poland, Andrzej Balaban
Developing A New Constitution For Poland, Andrzej Balaban
Cleveland State Law Review
Without examining the long, complicated, and even distinguished constitutional history of Poland, it is impossible to understand the challenge facing that country as endeavors to establish a new Polish constitution are underway. History and tradition have long been the inspirational force and strength behind Poland's continual resistance to aggressors and occupiers, including the communist authorities. Ultimately, the constitutional history of Poland proved to be a dominating factor in the defeat of communism and the development of an independent Polish state, changes which lead to similar events throughout the countries of Central and Eastern Europe. This examination of the constitutional history …
Special Proceedings In Ohio: What Is The Ohio Supreme Court Doing With The Final Judgment Rule, Donald I. Gitlin
Special Proceedings In Ohio: What Is The Ohio Supreme Court Doing With The Final Judgment Rule, Donald I. Gitlin
Cleveland State Law Review
This note will analyze special proceedings in Ohio insofar as they relate to the appealability of interlocutory orders. Because of the complex and evolving nature of the Ohio Supreme Court's interpretation of special proceedings, this note's analysis must necessarily be largely descriptive of Ohio case law. In addition, this note will highlight differences between Ohio appellate practice and federal practice in order to acquaint the reader with the dramatically different results reached by the two systems. In addition, Part II of this note will examine what is meant by the phrase "substantial right," which appears in the second prong of …
Chicken Little's Revenge: Strict Judicial Scrutiny Of Scientific Evidence, Scott Charles Walker
Chicken Little's Revenge: Strict Judicial Scrutiny Of Scientific Evidence, Scott Charles Walker
Cleveland State Law Review
This note focuses on the current controversy over admissibility standards for novel scientific testimony. It will trace the development of legal standards for expert witness admissibility from the common law through the adoption of the Federal Rules of Evidence and to the current trend of strict judicial scrutiny. In addition, this note will analyze the issues before the United States Supreme Court in Daubert and will argue, in spite of indications to the contrary, that the Court should not be too quick to continue tightening the judicial noose on scientific experts. Finally, this note will dispute the utility of amending …
To Stay At Home: Analysis Of Rights And Recommendations On Procedures For Persons Receiving Mental Health Services In The Community , Janet L. Lowder, Franklin J. Hickman
To Stay At Home: Analysis Of Rights And Recommendations On Procedures For Persons Receiving Mental Health Services In The Community , Janet L. Lowder, Franklin J. Hickman
Journal of Law and Health
Before the pendulum swings back to the use of institutions as the primary treatment modality for persons with severe mental illness, there should be a re-examination of the alternatives available to community care providers to ensure compliance with treatment outside of the hospital. This article will focus on the alternatives available in the Ohio mental health system, which is fundamentally oriented towards community-based treatment, and the effects of this orientation.
Paternalism, Civil Commitment And Illness Politics: Assessing The Current Debate And Outlining A Future Direction, Bruce A. Arrigo
Paternalism, Civil Commitment And Illness Politics: Assessing The Current Debate And Outlining A Future Direction, Bruce A. Arrigo
Journal of Law and Health
The purpose of this article is to examine critically the role that both law and psychiatry have played in casting mentally ill persons as deviants, citizen / outsiders caught in a crossfire of illness politics. This examination will focus on those values protected and privileged by the medical and legal professions as reflected in confinement law and policy primarily during the last quarter of the twentieth century. The social, economic and political power these disciplines exercise in the lives of psychiatric citizens raises significant questions concerning the future of involuntary civil commitment both from a clinical and justice policy perspective. …
Confidentiality And Privilege Of Peer Review Information: More Imagined Than Real, Susan O. Scheutzow, Sylvia Lynn Gillis
Confidentiality And Privilege Of Peer Review Information: More Imagined Than Real, Susan O. Scheutzow, Sylvia Lynn Gillis
Journal of Law and Health
This article will discuss the status of the privileges and confidentiality protection today at both the state and federal level. It will also address the concerns present among those individuals and organizations participating in peer review regarding the law of privileges and confidentiality and offer suggestions for health care providers to take full advantage of the statutory protections.
Medical Device Technology: Does Federal Regulation Of This New Frontier Preempt The Consumer's State Common Law Claims Arising From Injuries Related To Defective Medical Devices?, Susan M. Mesner
Journal of Law and Health
The purpose of this paper is to explore the relationship between federal medical device regulation and state common law tort actions. Specifically, the issue to be addressed is whether the Medical Devices Act and regulations promulgated thereunder preempt state law damage actions brought by injured consumers against device manufacturers. An analysis of the preemptive provision of the Medical Devices Act and case law construing this provision is set forth below. The United States Supreme Court's recent preemption analysis in Cipollone v. Liggett Group, Inc. will be used as a guide in establishing a useful method for determining whether state tort …
Has The Time Come For Doctor Death: Should Physician-Assisted Suicide Be Legalized?, Wendy N. Weigand
Has The Time Come For Doctor Death: Should Physician-Assisted Suicide Be Legalized?, Wendy N. Weigand
Journal of Law and Health
A "true" doctor-assisted suicide can be distinguished from euthanasia in that the patient is actually bringing his or her own life to an end. The doctor in some way facilitates the action, either by providing the means for the suicide, such as in the New England Journal of Medicine article, or by giving the patient some kind of instruction as to the best way of carrying out the act. The difference lies in the fact that it is the patient killing him or herself with the help or advice of a physician, not the physician acting directly to shorten the …
The Ada As A Tool For Advocacy: A Strategy For Fighting Employment Discrimination Against People With Disabilities, Ellen M. Saideman
The Ada As A Tool For Advocacy: A Strategy For Fighting Employment Discrimination Against People With Disabilities, Ellen M. Saideman
Journal of Law and Health
There are essentially three different theories that are used to prove discrimination against people with disabilities: disparate treatment- that a person has been treated differently because of membership in a protected class - may be proved by direct evidence of discrimination or by inference. Today, employers are often open about discriminating against people with disabilities. They frequently know little about disabilities and make their decisions based on stereotypes rather than on individualized assessments. Further, medical examinations and inquiries are required by the ADA to be conducted after a job has been offered thereby enabling job applicants to determine that their …
Designing Reasonable Accomodations Through Co-Worker Participation: Therapeutic Jurisprudence And The Confidentiality Provision Of The Americans With Disabilities Act, Rose A. Daly-Rooney
Designing Reasonable Accomodations Through Co-Worker Participation: Therapeutic Jurisprudence And The Confidentiality Provision Of The Americans With Disabilities Act, Rose A. Daly-Rooney
Journal of Law and Health
The Americans with Disabilities Act prohibits discrimination on the basis of disability in employment, public accommodations, transportation, communication, and services provided by state and local government. Title I of the ADA addresses employment discrimination against people with disabilities. Among other things, the ADA prohibits an employer from rejecting an applicant solely because of the need to provide that applicant with a reasonable accommodation. At the same time, the ADA requires that an employer maintain confidentiality about the applicant or employee's medical condition or medical history obtained during acceptable inquiries, including those inquiries needed to design appropriate accommodations.
The Need For A Process Theory: Formulating Health Policy Through Adjudication, Margaret G. Farrell
The Need For A Process Theory: Formulating Health Policy Through Adjudication, Margaret G. Farrell
Journal of Law and Health
This essay sets out a preliminary, theoretical framework within which to analyze remedial options and begin the search for the values they promote. It is based on the premise that the process used to enforce substantive rights to health care should promote values that are consistent with, and even supportive of, the values that health care reform itself would promote. The framework proceeds upon an analysis of the kinds of claims at issue, the alternative decision making models available to settle them, and the forums in which those models might be used. In conclusion, I urge scholars, policy makers and …
The Medicare And Medicaid Anti-Kickback Statute: Safe Harbors Eradicate Ambiguity, Durin B. Rogers
The Medicare And Medicaid Anti-Kickback Statute: Safe Harbors Eradicate Ambiguity, Durin B. Rogers
Journal of Law and Health
This Note will briefly explore the history of the Medicare and Medicaid programs including the introduction of the PPS. Next, the Note will detail the legislative history surrounding the adoption of the MMAKS and the judicial interpretation applied to its elements. The Note will follow with an analysis of the purpose, goals, and disagreements relating to the MMPPPA's "Safe Harbor" regulations, resolving their alleged ambiguity against the medical profession. Finally, the Note will advocate support of the recently proposed Health Care Cost Containment and Reform Act of 1992 with emphasis on increasing the budget and size of the staff within …
Potential Toxic Tort Litigation: Will Used Oil Be The Asbestos Of The 21st Century , Ronald P. Tomallo Jr.
Potential Toxic Tort Litigation: Will Used Oil Be The Asbestos Of The 21st Century , Ronald P. Tomallo Jr.
Journal of Law and Health
This paper explores why there has been so little litigation in this area considering both the harm posed by used oils and the high rate of exposure in many occupations. To aid in an analysis, three distinct topics will be addressed. First, basic information establishing the harm caused by prolonged exposure to used lubricating oils will be presented which will aid in understanding the potential liability. Second, existing case law shall be analyzed. Finally, the development of future litigation will be explored. Plaintiffs in these suits will typically be persons exposed to used oil by common machine lubrication applications - …
Tester Standing In Employment Discrimination Cases Under 42 U.S.C. 1981, Michelle Landever
Tester Standing In Employment Discrimination Cases Under 42 U.S.C. 1981, Michelle Landever
Cleveland State Law Review
There is little direct evidence about the nature and extent of hiring discrimination in the United States. There is no empirical evidence that discrimination has been eliminated; and even across the political spectrum there is recognition that the problem still persists. As many more claims pertaining to promotions and terminations are filed, there is a misperception that these reflect a more serious problem than that of hiring discrimination. Victims of hiring discrimination are less likely to know that they have been discriminated against, and to have access to information needed to prove it. Thus, as discrimination at the hiring stage …
Adverse Publicity As A Means Of Reducing Judicial Decision-Making Delay: Periodic Disclosure Of Pending Motions, Bench Trials And Cases Under The Civil Justice Reform Act, Charles Gardner Geyh
Adverse Publicity As A Means Of Reducing Judicial Decision-Making Delay: Periodic Disclosure Of Pending Motions, Bench Trials And Cases Under The Civil Justice Reform Act, Charles Gardner Geyh
Cleveland State Law Review
The modest objective of this article is to analyze §476 in light of the purpose it was designed to serve, and to evaluate the performance of that section during the two years that it has been in operation. To do that, it is useful to begin by placing §476 in the larger context of ongoing efforts to address and remedy indefensible decision-making delays. Section II will, therefore, summarize the causes of decision-making delay, dividing them among the defensible and the indefensible, and then review existing mechanisms for alleviating indefensible delay. The point worth underscoring is that while defensible delays-particularly delays …
Medical Futility: Has Ending Life Support Become The Next Pro-Choice/Right To Life Debate, Daniel Robert Mordarski
Medical Futility: Has Ending Life Support Become The Next Pro-Choice/Right To Life Debate, Daniel Robert Mordarski
Cleveland State Law Review
This note will provide an analysis of the issue of medical futility and propose "solutions" to the issue. Part II considers the definition of "medical futility" and different ways to view the concept. In Part III, the position is forwarded that medical futility is a question of values which the medical profession is not necessarily more qualified than a layperson to answer. In Part IV, medical futility will be examined in the context of existing law. This section also addresses the potential tort liability of a health care provider who unilaterally takes certain actions based on the concept of medical …
Municipal Annexation In Ohio: Putting An End To The Bitter Battle, Mary Shannon Place
Municipal Annexation In Ohio: Putting An End To The Bitter Battle, Mary Shannon Place
Cleveland State Law Review
Recent decades, marked by steady population growth, have seen the evolution of a distinctly urban nation. The multiplicity of local governments within metropolitan areas has raised serious questions about the efficiency and equity of fragmented government organizations. Critics argue that the existence of multiple local governments in metropolitan areas leads to an inequitable allocation of public goods and services, inefficient patterns of area land use and development, and counterproductive competition for new fiscal resources and territorial autonomy. Moreover, the urbanized landscape poses problems of community leadership. And sadly, municipal annexation in Ohio has fallen far short of its potential to …
Operation Rescue Blockades And The Misuse Of 42 U.S.C. 1985(3), Michael F. O'Brien
Operation Rescue Blockades And The Misuse Of 42 U.S.C. 1985(3), Michael F. O'Brien
Cleveland State Law Review
The purpose of this Note is to demonstrate that § 1985(3) is not applicable to Operation Rescue's blockade activities. Part II provides a brief survey of the history of § 1985(3) from its roots in the post-Civil War era to the 1950's. Part III examines the requirements for a § 1985(3) claim as delineated in the Griffin, Novotny, and Scott decisions. Part IV applies these requirements to the blockade controversy and argues that: (1) Gender-based animus should be accepted by the Court as a form of class-based animus within the meaning of § 1985(3); (2) the blockades do not fall …
Lawmaker As Lawbreaker: Enforcement Actions Against Municipalities For Failing To Comply With The Clean Water Act, G. Nelson Smith Iii
Lawmaker As Lawbreaker: Enforcement Actions Against Municipalities For Failing To Comply With The Clean Water Act, G. Nelson Smith Iii
Cleveland State Law Review
The Clean Water Act makes it unlawful for anyone, including municipalities, to discharge a pollutant into navigable waters except as authorized by specific sections of the Act. To implement this prohibition, as well as the exceptions, the Act established a complex system regulating all discharges into the navigable waters of the United States. Under the Act, the discharge of pollutants without a permit or in violation of a permit condition may result in civil penalties and/or a criminal penalty per day per violation. While these penalties could be extremely costly for municipalities, the problem becomes even more severe because many …
Setoff And Bankruptcy, Lawrence Kalevitch
Setoff And Bankruptcy, Lawrence Kalevitch
Cleveland State Law Review
The code treats liens and setoffs as secured claims. A lienor under §506 receives a secured claim in the face amount of the debt secured only if the collateral has at least that value. Section 506(a) requires collateral valuation to determine the amount of the secured claim. Setoff in the face amount of a creditor's claim likewise requires valuation. Part II discusses §506(a) and §553 and how they may limit, in appropriate cases, the setoff right to less than the face amount of a creditor's claim. Part II shows that this reading of the Bankruptcy Code is not only consistent …