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Billboards, Aesthetics, And The First Amendment: Municipal Sign Regulation After Metromedia, Alan Weinstein

Law Faculty Articles and Essays

In Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), 33 ZD 238, the U.S. Supreme Court, although sharply divided, held that states and municipalities could regulate signs and billboards to reduce traffic hazards and improve a community's appearance, but cautioned that regulations which imposed too many restrictions on protected First Amendment rights to freedom of speech would be struck down. The nine Supreme Court justices wrote five separate opinions in Metromedia, struggling to find a workable accommodation between free speech guarantees and the deference normally granted to a municipality's exercise of the police power.' This article, after …

The Gamut: A Journal Of Ideas And Information, No. 12, Spring/Summer 1984, Cleveland State University

The Gamut Archives

CONTENTS OF ISSUE NO. 12, SPRING/SUMMER,1984

Kenneth A. Torgerson: Jury or Judge, 2

The problems of trial by one's peers.

Robert Creeley: Conversation, 20

Interview reveals a poet's concerns about teaching, money, readings, publishing.

Carsten Ahrens: Ottawa County's Very Special Daisy, 33

Rare botanical species of Sandusky area.

George C. Chang: Progress and Promise of Electric Vehicles, 35

Will the future of transportation be battery-powered?

Marvin H. Jones: Peculiar Portraits, 48

Ingrid Komar: Making Utopia Work, 50

The joys and travails of an "intentional" community.

David B. Guralnik: Word Watch: Productive Suffixes II, …

The Reemergence Of Nuisance Law In Environmental Litigation, Alan Weinstein

Law Faculty Articles and Essays

In the summer of 1980, Chicago's beaches were fouled by raw and inadequately treated sewage, allegedly discharged into Lake Michigan by the Hammond (Indiana) Sanitary District. Clearly, Illinois and Chicago officials wanted to stop pollution of the lake. Surprisingly, they turned to the common law of nuisance, rather than to a regulatory agency or a statutory citizens' suit to obtain relief, charging the city of Hammond and the sanitary district with violations of the Illinois common law of nuisance. While planners are generally familiar with the application of common law nuisance doctrines to resolve disputes between conflicting uses of land, …

Access To Sunlight In Ohio: The Dismal Outlook, Amy E. Blenkhorn

Cleveland State Law Review

This Note will trace the evolution of access-to-sunlight issues and the enactment of new laws in the solar-access area, with primary focus on Ohio's treatment of the issues. A brief historical review will be included as well as data relating to the feasibility of using solar energy in Ohio. A critical analysis of the recent Ohio Solar Easement Statute also will be presented. Solar statutes and case law of other states and policies of the federal government and foreign governments will be scrutinized. These findings will be examined in an attempt to forecast whether Ohio should adopt or reject various …

Judicial Development Of Standards Of Liability In Government Enforcement Actions Under The Comprehensive Environmental Response, Compensation And Liability Act, Stephen Q. Giblin, Dennis M. Kelly

Cleveland State Law Review

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) represents the first major attempt on a national level to address the problem of abandoned hazardous waste sites. CERCLA permits an action to be brought in federal court for recovery of amounts disbursed from the Superfund against, inter alia, any person who arranges for treatment or disposal of wastes at a site, typically the generator of the hazardous wastes. CERCLA's enforcement provisions contain numerous ambiguities and apparent inconsistencies on issues that directly affect the potential liability of CERCLA's defendants. Many of the inadequacies probably can be traced to the …

Re-Separating The Powers: The Legislative Veto And Congressional Oversight After Chadha, Kim I. Moses

Cleveland State Law Review

This Note will initially trace the historical setting in which Chadha v. Immigration and Naturalization Service was decided. In light of the staunch defense of and radical opposition to the veto, the Court's decision will then be analyzed in terms of its scope as well as its potential ramifications. The major focus will concern the future of existing laws which presently embody legislative vetoes, whether they are valid despite these provisions, and how the future of congressional oversight may be affected by the potential demise of the legislative veto. Finally, this Note will recommend a proposal by which the legislature …

Mental Hospital Drugs, Professionalism, And The Constitution, Sheldon Gelman

Law Faculty Articles and Essays

No abstract provided.

Mental Hospital Drugging - Atomistic And Structural Remedies, Sheldon Gelman

Law Faculty Articles and Essays

Thirty years have passed since the discovery of Thorazine, a neuroleptic drug, and the drugging of American state mental patients has become commonplace. Part I distinguishes between two approaches to remedy--"structural" and "atomistic"--and, as a basis for testing the two, describes a state hospital's handling of the most serious drug side effect. This account also provides a sense of the dimensions of the drugging problems in state hospitals. Part II explores a family of atomistic remedies. These would address drugging problems by seeking to ensure that state doctors are knowledgeable about drugs and/or reasonably careful in administering them. I reject …

The Emerging State Court § 1983 Action: A Procedural Review , Steven H. Steinglass

Law Faculty Articles and Essays

Although actions under § 1983 have traditionally been a federal court remedy, an increasing number of litigants have turned to the state courts to pursue claims under § 1983. In light of this trend, the author presents a comprehensive examination of state court § 1983 actions--focusing on the choice of the state forum as a tactical decision, the power and duty of state courts to hear § 1983 actions, and the specific procedural and remedial issues that will arise in state court § 1983 litigation.

Electronic Surveillance, Computers, And The Fourth Amendment - The New Telecommunications Environment Calls For Reexamination Of Doctrine, Arthur R. Landever

Law Faculty Articles and Essays

We are in the midst of a revolution in information collection and telecommunications. Computer networking, the unification of the various telecommunications systems, the establishment of central data banks, and government tracking and profiling of vast numbers of Americans present momentous challenges for our constitutional system. Increasingly, in our evolving culture, an individual enters the public setting in order to conduct his personal life. Fourth Amendment doctrine respecting electronic surveillance, as well as Supreme Court notions of "free choice" and "assumption of risk" must come to grips with this new reality. In the main, the author urges judicial intervention, as the …

Islam And Politics, David F. Forte

Law Faculty Articles and Essays

We can thus see that Islamic tradition has recognized the venerability of the Shari'a but that the same tradition has historically given the state means to workaround the limits of the Shari'a. How far it should go has always been debated in Islam. The debate and the alternative theories all stem from the fact that the Shari'a never developed a constitutional basis for itself due to its history and the notion of law as simply the refinement of divine command. The competing views of the Shari'a's proper place have jousted with one another for a thousand years. They will continue …

One Person-One Vote Round Iii: Challenges To The 1980 Redistricting, Robert J. Van Der Velde

Cleveland State Law Review

Ever since the United States Supreme Court entered the "political thicket" of redistricting and reapportionment courts and legislatures have been struggling with issues relating to the Court's mandate of "one person, one vote." The re-drawing of congressional and legislative district boundaries after the 1980 census was only the third time that district boundaries have been drawn according to the Supreme Court's mandate of "one person-one vote." This Article discusses the legal requirements of one person-one vote and the continuing evolution of the legal standards in this area. Part II analyzes the evolution of one person-one vote doctrine in the Supreme …

The Duty To Warn In Toxic Tort Litigation, Robert C. Maynard, George S. Crisci

Cleveland State Law Review

Subsequent to the landmark case of Greenman v. Yuba Power Products, Inc., the American judicial system has become encumbered by a staggering number of products liability actions. A significant number of these cases involve allegations of inadequate or nonexistent warnings. Given society's increasing reliance on chemical products, the potential for additional claims from accidental exposure to or improper use of toxic chemicals in the home, the workplace, and the environment is immense, notwithstanding the best efforts of the chemical industry to minimize the risk of injury. The result is a huge cost to manufacturers -both from paying damage claims and …

Judges As Medical Decision Makers: Is The Cure Worse Than The Disease, Alan A. Stone

Cleveland State Law Review

I shall examine and criticize three of the many judicial decisions in the area of law and medicine. These cases are Doe v. Bolton, Superintendent of Belchertown State School v. Saikewicz, and Rogers v. Commissioner of the Department of Mental Health. Those of you who like to think of the law as reason and justice tempered by mercy will be offended by what I have to say; but I shall be evenhanded. Those of you who think of medicine as science and art tempered by compassion will also be offended. My justification for the critical and polemical thesis I shall …

Gates, Leon, And The Compromise Of Adjudicative Fairness (Part I): A Dialogue On Prejudicial Concurrences, Joel Jay Finer

Cleveland State Law Review

This two-part Article is about certain qualities of fairness –those qualities that although subtle, are central to the idea and spirit of justice in adjudication. This Article is about how those qualities were subverted in the process by which the doctrine of United States v. Leon became law. Part I of the Article –A Dialogue on Prejudicial Concurrences–published herein, suggests that several members of the Leon majority (particularly its author, Justice White) were unable to impartially adjudicate the constitutional question because of pre-decisional gratuitous opinions (from the bench) on the subject. More specifically, the Dialogue explores the virtually unquestioned assumption …

Copyright Protection For Video Games: The Courts In The Pac-Man Maze, Mary Patricia Culler

Cleveland State Law Review

Copyright has proved to be an appropriate form of protection for video games. However, the application of copyright law to protect the audiovisual displays and underlying computer programs of video games has become possible only since the revision of the Copyright Act 7 in 1976. Of further significance, has been the development of the law of copyright in the subject areas of computer programs, games, and characters. However, the nature of copyright law is such that the final determination of the protection to be afforded a given game actually rests on policy grounds rather than on an application of black-letter …

The Leave To Plead As A Waiver Of The Jurisdictional Defenses, J. Patrick Browne

Cleveland State Law Review

Civil Rule 12(B) includes three defenses which challenge in personam jurisdiction. They are the 12(B)(2) defense of lack of jurisdiction over the person, the 12(B)(4) defense of insufficiency of process, and the 12(B)(5) defense of insufficiency of service of process. Not infrequently, the assertion of any one or more of these defenses is haunted by the ghost of the old "special appearance," and that which makes the ghost rattle its chains is often the defendant's taking a leave to move or plead before presenting these defenses to the court. In such case it is usually said that the taking of …

The Rise And Fall Of Sovereign Immunity In Ohio, Frank D. Celebrezze, Karen B. Hull

Cleveland State Law Review

The doctrine of sovereign immunity for municipal corporations has long reigned in Ohio. Although the judiciary and the General Assembly have imposed limitations, the doctrine has survived as a principle of Ohio law for over 140 years. However, the Supreme Court of Ohio reversed the trend and abrogated the doctrine in a series of cases in December 1982 and in the spring of the 1983 term. This comment examines the historical development of sovereign immunity for tort claims in Ohio, the limitations subsequently imposed on the immunity and its abrogation in those recent supreme court cases.

The Role Of A Judge In Modern Society: Some Reflections On Current Practice In Federal Appellate Adjudication, Harry T. Edwards

Cleveland State Law Review

In a recent article, I addressed one aspect of the complex of issues facing federal judges--the problems allegedly attendant upon the "bureaucratization" of the decision-making process at the appellate level. The present paper considers a different set of questions: taking as given the current organization, jurisdiction, and caseload of the federal courts, how might appellate judges alter their habits and attitudes so as to perform better their allotted tasks and how might Congress alter its own practices so as to facilitate the refinement and more effective utilization of appellate adjudication? The ensuing discussion of those topics is divided into three …

Garland V. Herrin: Surviving Parents' Remedies For A Child's Wrongful Death - The Pecuniary-Loss Rule And Reckless Infliction Of Emotional Distress, Kathleen Keogh Miller

Cleveland State Law Review

The parents of Bonnie Garland are only two of the innumerable third-party victims who have suffered from the wrongful death of a child. Because the "emotional distress" suffered by the Garlands was comprised of so many elements, the wrongful death of their child provides a framework for analyzing all the harms engendered within the term "emotional distress" and the availability of civil remedies for each of those "separable" harms. The tragedy of the Garlands will be used as a vehicle to assess the success of legislatures and courts in enacting and interpreting wrongful death statutes. The important question becomes whether …

Affirmative Action After Bakke, Cordelia A. Glenn

Cleveland State Law Review

This Note will examine Regents of the University of California v. Bakke and subsequent Supreme Court decisions dealing with affirmative action to determine what effect, if any, these decisions have had on lower court determinations of the validity of affirmative-action programs. This Note will also discuss the problems inherent in judicial review of such programs and the direction that affirmative action has taken as a result of lower court decisions. Affirmative action as it relates to women and to seniority plans is beyond the scope of this Note. However, reference to these types of cases will be made for purposes …

The Seniority System Exemption To Title Vii Of The Civil Rights Acts: The Impact Of A New Barrier To Title Vii Litigants, Beth Wain Brandon

Cleveland State Law Review

Congress has prohibited discrimination in employment by enacting Title VII of the 1964 Civil Rights Act. Section 703(h) was passed as an exemption to Title VII, in order to protect bona fide systems of seniority. The purpose of Title VII was "the prevention of unlawful employment discrimination and the amelioration and elimination of the effects of past discrimination." To this end, the courts historically have looked at the "effects" of discrimination rather than the "intent" to discriminate, when analyzing a Title VII violation. Recently the Supreme Court, in American Tobacco Co. v. Patterson, has required a showing of intent to …

Cancer And Toxic Substances: The Problem Of Causation And The Use Of Epidemiology, Junius C. Mcelveen Jr., Pamela S. Eddy

Cleveland State Law Review

This article seeks to illuminate the difficulties in finding causation between cancer development and toxic substances. Section II gives a brief history of cancer in society as well as an introduction to the biological cancer mechanism, and highlights our general lack of knowledge about cancer. Section III takes a brief look at some occupations and environmental factors that have been suggested causes of cancer. Section IV discusses in depth the problems with establishing association between toxic substances and cancer, especially in establishing causal significance. Section V analyzes how the epidemiology of disease and toxic substances is treated by courts. Section …

Judicial Remedies In Pattern And Practice Suits Under The Fair Housing Act Of 1968: United States V. City Of Parma, Karen E. Rubin

Cleveland State Law Review

The elimination of racially segregated housing is a national goal of high priority. This goal is reflected in the pronouncements of law-makers and policy shapers, in decisional law, and in the existence of federal and state legislation designed to eradicate ghettos and replace them with "truly integrated and balanced" communities. Yet segregated housing patterns persist, often finding their source and legitimization in the policies and practices of local governments. This Note will examine an Ohio decision, United States v. City of Parma, and its impact on two issues: the bringing of a "pattern and practice" suit under Title VII of …

When Is One Generator Liable For Another's Waste, Kenneth C. Moore, Kathiann M. Kowalski

Cleveland State Law Review

Since the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund Act) was adopted as a compromise bill by the lame duck Congress in December of 1980, companies that generated and disposed of hazardous wastes at off-site facilities have been seriously concerned about the question of when one company can be held liable for clean-up and other response costs associated with another company's wastes. Two issues are central to the question of when one generator may be liable for another's waste: 1) whether and to what extent a causal connection must be shown to exist between a generator's waste …

Local Hire And The State-Market-Participant Doctrine: A Trojan Horse For The Commerce Power Of Congress, Charles H. Clarke

Cleveland State Law Review

"Local hire" laws require that when units of local government hire employees a preference be given to residents of the governmental unit. These laws affect employees directly hired by the city or state, as well as employees hired by private contractors to do construction work. Naturally, this employment preference for residents discriminates against those who do not reside within the city or state. Nonresidents, however, are afforded extensive protection against discrimination by states and their political subdivisions by two clauses of the Constitution: the commerce clause and the interstate privileges and immunities, or comity, clause. This Article will analyze the …

Seizures Of The Fourth Kind: Changing The Rules, Harry M. Caldwell

Cleveland State Law Review

While a large percentage of police-citizen encounters may be classified readily as falling within the protections of the fourth amendment, a number of them are difficult to categorize. Since the decision in Terry v. Ohio, the U.S. Supreme Court has been grappling with the issue of when such encounters do, in fact, mandate fourth amendment protection. The Court's most recent pronouncement in this area, Immigration and Naturalization Service v. Delgado, involved an Immigration and Naturalization Service factory sweep and the ensuing encounter between immigration officials and plant employees. In this significant and controversial opinion, the Court found that the Delgado …

Personality As A Criterion For Faculty Tenure: The Enemy It Is Us, Perry A. Zirkel

Cleveland State Law Review

Faculty tenure has been the subject of continuing concern and controversy in American higher education. Problems in this area, including the lack of definitive standards for evaluating tenure candidates, have been highlighted by the recent downturn in the economy and the resultant decline in both enrollment and employment in colleges and universities. This trend is actively demonstrated by the Fourth Circuit Court of Appeals decision in Mayberry v. Dees. This Article advocates and proposes a more exacting judicial review of faculty tenure cases that are based on collegiality or other such personality criteria. Initially, the operational context of faculty tenure …

Being And Nothingness: Commencement And The Application Of Ohio Civil Rules 3(A) And 4(E), J. Patrick Browne

Cleveland State Law Review

As a general rule, a civil action comes into existence at the moment of commencement, and it ceases to exist as an action when the court journalizes a final judgment that adjudicates the rights of all of the parties and determines all of the claims involved in the action. Because the action comes into existence with commencement, it is important to define that precise moment in time when the action is deemed to have commenced. That is the task of Civil Rule 3(A), which states: "A civil action is commenced by filing a complaint with the court, if service is …

Public Sector Bargaining In A Democracy - An Assessment Of The Ohio Public Employee Collective Bargaining Law, T. Merritt Bumpass Jr., Keith A. Ashmus

Cleveland State Law Review

The purpose of this Article is to examine the Ohio Act in terms of its accommodation of the major theoretical considerations in favor of, or opposed to, public sector collective bargaining. In other words, is the Ohio Act structured so as to maximally achieve the benefits asserted to be available from collective bargaining and to avoid the costs asserted to arise from it? In order to accomplish this task, this Article will briefly summarize major provisions of the Act. An overview of some of the major arguments for and against public sector unionization will then be provided. Once this background …