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Cleveland State University

1986

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Articles 1 - 27 of 27

Full-Text Articles in Law

Observations On Personal Injury Law, Stephen J. Werber Oct 1986

Observations On Personal Injury Law, Stephen J. Werber

Law Faculty Articles and Essays

When I originally came to Ohio in 1970, I was surprised to find that the Ohio state courts lagged considerably behind other states in the development of personal injury law and especially product liability law. Under the leadership of Chief Justice Frank Celebrezze, the court's position was re-oriented. With decisions adopting and liberally defining strict liability, the court took a major step. Shortly thereafter, the court ruled that neither the Ohio Constitution nor any Ohio legislation insulated an employer from liability to employees for intentional torts. These, and other changes, have moved Ohio to the forefront of legal development in …

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New Rules For Zoning Adult Uses: The Supreme Court's Renton Decision, Alan Weinstein Aug 1986

New Rules For Zoning Adult Uses: The Supreme Court's Renton Decision, Alan Weinstein

Law Faculty Articles and Essays

This term, for the third time in 10 years, the U.S. Supreme Court considered the validity of zoning that restricts the location or operation of businesses that trade in sexually oriented books, magazines, movies, or entertainment. Restrictions on such "adult businesses" raise serious constitutional issues because the First Amendment's guarantee of freedom of speech extends to sexually oriented media so long as the material is not considered obscene. In the latest case, City of Renton v. Playtime Theatres, 106 S.Ct. 925 (1986), 38 ZD 258, the Court upheld a zoning ordinance that limited the location of theaters exhibiting adult movies …

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Natural Law And Natural Laws, David F. Forte Jul 1986

Natural Law And Natural Laws, David F. Forte

Law Faculty Articles and Essays

Modern science has developed the notion of "natural laws" to describe the apparent sequential patterns of the most complex parts of the physical world. But it cannot tell us what we ought to do about arms production, or human sexuality or abortion or race, or death. Non-teleological science can no more tell us that nuclear fusion is immoral than it can tell us what is the natural purpose of the solar system. Natural Law, however, can tell us what ought to be done in light of the nature of law. If indeed the nature of law is that it is …

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Should The Insanity Defense Be Abolished - An Introduction To The Debate, Norval Morris, Richard Bonnie, Joel J. Finer Jan 1986

Should The Insanity Defense Be Abolished - An Introduction To The Debate, Norval Morris, Richard Bonnie, Joel J. Finer

Journal of Law and Health

As the plans for the debate began to unfold I was concerned about the possibility that the subject matter might already be jaded, or in any event no longer would be a "hot topic" for our potential audience. Being quite familiar with the writings of our Advocates and therefore particularly susceptible to the reader-listener rehash syndrome, I was nonetheless hopeful that what had the potential for being old-hat would instead be new and interesting to those members of the audience not professionally committed to intimate familiarity with the subject matter. While I had expected that these issues, aired in the …

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Widow And The Sperm: The Law Of Post-Mortem Insemination, E. Donald Shapiro, Benedene Sonnenblick Jan 1986

Widow And The Sperm: The Law Of Post-Mortem Insemination, E. Donald Shapiro, Benedene Sonnenblick

Journal of Law and Health

Just as there are moral and ethical implication in permitting the widow to use a sperm deposit for AIH, so are there moral and ethical implications in denying her this privilege. What is the rationale behind denying a widow access to that which would only be discarded? Suppose the sperm, rather than be discarded, were to be designated that of an unknown donor to be used in AID? If unmarred women have the right to procreate even using known donor sperm, what is the reason for prohibiting a woman to choose to be inseminated with the sperm of a man …

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Peer Review Committee Minutes And Memoranda: Non-Discoverable At All Costs, Howard S. Rabb Jan 1986

Peer Review Committee Minutes And Memoranda: Non-Discoverable At All Costs, Howard S. Rabb

Journal of Law and Health

The purpose of this article is to illustrate the inherent problems of blanket peer review confidentiality and to suggest a more equitable approach. Part I traces the deveopment of reviewing hospital quality and explains the operation and justifications of peer review committees. In Part II, the arguments supporting confidentiality are compared with the public policy favoring proper disposition of corporate negligence cases in order to determine and recommend the correct level of confidentiality. In Part III, the peer review discovery statute in section 2305.251 of the Ohio Revised COde is critically evaluated for its practical value to the advancement of …

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Fertility Or Unemployment - Should You Have To Choose, Yvonne Sor Jan 1986

Fertility Or Unemployment - Should You Have To Choose, Yvonne Sor

Journal of Law and Health

This article will address the legal issues involved in establishing an equitable balance between women's rights to equal employment opportunities and the right of future generations to be free from disease caused by parental exposures to hazardous chemical work environments. In the author's opinion the present regulatory framework provided by the Occupational Safety and Health Act of 1970 (OSHAct), the Toxic Substances Control Act (TSCA), and Title VII of the Civil Rights Act of 1964 is inadequate to provide the requisite degree of protection to employees and, particularly, to their offspring. Part II of the article will examine some of …

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Professional Education In Medicine And Law: Structural Differences, Common Failings, Possible Opportunities, Roger C. Cramton Jan 1986

Professional Education In Medicine And Law: Structural Differences, Common Failings, Possible Opportunities, Roger C. Cramton

Cleveland State Law Review

Medicine and law emerged in the early decades of the twentieth century as strong, highly organized professions with high status, increasing rewards, and growing autonomy. Professional claims of esoteric knowledge, collegial solidarity, and disinterestedness were accepted by members of the profession and the general public. Professional schools in both disciplines forged university connections and achieved dominant positions in the preparation of new professionals. Patterns of medical and legal education established during this formative period, extending roughly from 1890 to 1920, have been highly persistent. Despite these similarities, educators in the two professions have proceeded in isolation from one another. There …

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The Eighth Amendment And Capital Punishment Of Juveniles, Victor L. Streib Jan 1986

The Eighth Amendment And Capital Punishment Of Juveniles, Victor L. Streib

Cleveland State Law Review

The practice of imposing the death penalty for crimes committed while under the age of eighteen has occurred sporadically but persistently throughout American history. It gives every indication of continuing in this mode under current law and practice. Greatly differing approaches are followed by the various states as to the authorization and imposition of capital punishment for juveniles. This article explores the existence of a constitutionally-mandated minimum age below which the states may not venture in carrying out this practice. If such a nationwide minimum age exists or should exist, its justification can be found in current interpretations of the …

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Loss Of Rail Competition As An Issue In The Proposed Sale Of Conrail To Norfolk Southern: Valid Concern Or Political Bogeyman, Mark D. Perreault, Nancy S. Fleischman Jan 1986

Loss Of Rail Competition As An Issue In The Proposed Sale Of Conrail To Norfolk Southern: Valid Concern Or Political Bogeyman, Mark D. Perreault, Nancy S. Fleischman

Cleveland State Law Review

The Department of Transportation's plan to return Consolidated Rail Corporation (Conrail) to the private sector by selling the federal government's controlling interest to Norfolk Southern Corporation has, not surprisingly, been the subject of a spirited debate in the transportation and political community since its announcement in February, 1985. Critics have said that the sale proposal "runs directly contrary to [antitrust] policy goals" and would have a serious, adverse effect on competition. The proposal is a "flagrant violation of antitrust laws and would create an unconscionable monopoly." The purpose of this article is to examine the legal standards historically and currently …

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The Changing Course: The Use Of Precedent In The District Of Columbia Circuit, Patricia M. Wald Jan 1986

The Changing Course: The Use Of Precedent In The District Of Columbia Circuit, Patricia M. Wald

Cleveland State Law Review

An article by my colleague Judge Edwards uses a series of computer runs from the court's 1983 term to make out a statistical case that our members mostly agree with each other and do not fall into predictable "conservative," “liberal," or even "moderate," voting blocs; labels that the press so dearly loves to pin on us. I agree that our votes in a large number of cases, particularly administrative law cases, do not so easily typecast us. I do, however, think that in the high visibility cases, involving controversial social or "moral" issues, our differences in judicial philosophy, on the …

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Mini In Banc Proceedings: A Survey Of Circuit Practices, Steven Bennett, Christine Pembroke Jan 1986

Mini In Banc Proceedings: A Survey Of Circuit Practices, Steven Bennett, Christine Pembroke

Cleveland State Law Review

In banc review was originally intended to resolve conflicts in circuit precedent. Full-scale in banc proceedings, however, are cumbersome, costly and time-consuming. In determining whether to proceed with in banc review, courts appear to weigh the costs of in banc review against its potential benefits. Employing this calculus, courts often forgo in banc review in conflict cases that would otherwise receive such treatment. One solution to this problem is to reduce the cost and delay of in banc proceedings by streamlining the procedure. Recently, several federal circuit courts of appeals have adopted abbreviated forms of in banc review. The purpose …

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The Automatic Stay In Bankruptcy, John Francis Murphy Jan 1986

The Automatic Stay In Bankruptcy, John Francis Murphy

Cleveland State Law Review

This article describes the automatic stay in bankruptcy proceedings. Section I explains the purpose of the automatic stay, lays out the history and scope of the stay, and lists parties that can be protected by the stay. Section II briefly describes how the scope of the automatic stay may be increased by a party’s motion, under 11 USC 105(A). Section III discusses the effects of violations of the stay, and gives remedies for such violations. Section IV gives a detailed explanation of possible modifications of the automatic stay, as well as how it may be terminated. Finally, Section V rounds …

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Analyzing The Competitive Effects Of Mergers: Is There Anything Special About Railroads, Robert S. Stillman Jan 1986

Analyzing The Competitive Effects Of Mergers: Is There Anything Special About Railroads, Robert S. Stillman

Cleveland State Law Review

Empirical evidence demonstrates that mergers, on average, create value for shareholders of the merging firms. The relevant question from an antitrust perspective, however, is the source of these gains. Increased efficiency is one possibility. It is also possible that in some cases merger gains derive not from enhanced efficiency, but rather from an enhanced ability to realize "monopoly profits." To determine whether a proposed merger is likely to be pro- or anti-competitive, economists often follow the approach outlined in the United States Justice Department's Merger Guidelines and ask whether the merger seems likely to facilitate collusion. In reviewing the competitive …

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Righting The Titled Scale: Expansion Of Artists' Rights In The United States, Colleen P. Battle Jan 1986

Righting The Titled Scale: Expansion Of Artists' Rights In The United States, Colleen P. Battle

Cleveland State Law Review

This Note focuses on the expansion of artists' rights in the United States, specifically the moral rights of paternity and integrity. It explores the history of judicial denial of moral rights and the attempt to gain protection through traditional causes of action. The Note then analyzes barriers to adoption of the moral rights doctrine, with emphasis on the challenge to traditional property concepts. The California Art Preservation Act of 1980 and the 1984 Artists' Authorship Act of New York are discussed and evaluated. This Note recommends adoption of the California statute as the model for future artists' rights legislation and …

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Reflections On The Adr Movement, Robben W. Fleming Jan 1986

Reflections On The Adr Movement, Robben W. Fleming

Cleveland State Law Review

ADR, the acronym that identifies the alternative dispute resolution movement, derives its current popularity from widespread dissatisfaction with the present system of justice. Thus, ADR both proposes and promotes "alternative" ways of dealing with disputes which would otherwise be the subject of litigation. In truth, there is nothing very new about the criticism directed at the legal profession, the courts, and the adjudicatory systems in general. The alternatives which have been suggested over the years are very similar. All of the alternatives lie along an axis which starts with efforts to bring about voluntary agreement by the parties and ends, …

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National Minimum Drinking Age Act Of 1984: Once Again Congress Mails Home Another Fist, Kevin Kadlec Jan 1986

National Minimum Drinking Age Act Of 1984: Once Again Congress Mails Home Another Fist, Kevin Kadlec

Cleveland State Law Review

This Note will examine the federal interest as it conflicts with the states' interest in setting their own drinking ages, which are derived from section two of the twenty-first amendment and the tenth amendment, respectively. This conflict is given sharper focus when examined in the context of Supreme Court tests and balancing measures developed in recent decades in these constitutional arenas. A controversy has arisen because of the congressional imposition of a national minimum drinking age on the states through coercive withholding of federal funds. It is the purpose of this Note to examine the controversy created by the Drinking …

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Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part Ii)-Aggressive Majoritarianism, Willful Deafness, And The New Exception To The Exclusionary Rule, Joel J. Finer Jan 1986

Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part Ii)-Aggressive Majoritarianism, Willful Deafness, And The New Exception To The Exclusionary Rule, Joel J. Finer

Law Faculty Articles and Essays

This Article will offer an elaboration of the idea of judicial "aggressiveness" (which Professor Stone, by and large, leaves undefined) through examination of the majority opinion in United States v. Leon and its application in Massachusetts v. Sheppard. It will also advance the thesis that the majority in Leon exhibited a particular kind of aggressiveness--willful deafness.

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Ethics And The Settlement Of Civil Rights Cases: Can Attorneys Keep Their Virtue And Their Fees?, Lloyd B. Snyder Jan 1986

Ethics And The Settlement Of Civil Rights Cases: Can Attorneys Keep Their Virtue And Their Fees?, Lloyd B. Snyder

Law Faculty Articles and Essays

The Civil Rights Attorneys' Fees Award Act of 1976 authorizes an award of fees to the prevailing party in a civil rights action. The United State Supreme Court, in Evans v. Jeff D., has interpreted the Fees Act to authorize the parties in a civil rights action to negotiate settlement of fees and merits jointly. The Court did not determine whether joint fees-merits negotiation is ethical. The author of this article contends that joint negotiation is ethical. He further contends that it is ethical for plaintiff's attorney to reject an offer of settlement if the offer is coupled with a …

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Product Liability In The Sixth Circuit: 1984-1985, Stephen J. Werber Jan 1986

Product Liability In The Sixth Circuit: 1984-1985, Stephen J. Werber

Law Faculty Articles and Essays

The Sixth Circuit, as other federal courts, is deciding a growing number of product liability cases. The court has been required to carefully explore state substantive law in such complex areas as comparative fault and foreseeability. Several of the recent cases have required application of difficult facts to recognized legal principles. In the following article Professor Werber analyzes key decisions against applicable state law and suggests areas in which the court has applied that law in manners both consistent with, and contrary to, state law. Professor Werber is critical of the court's Erie determination that the Ohio Supreme Court would …

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Constraints Of Power: The Constitutional Opinions Of Judges Scalia, Bork, Posner, Easterbrook, And Winter, James G. Wilson Jan 1986

Constraints Of Power: The Constitutional Opinions Of Judges Scalia, Bork, Posner, Easterbrook, And Winter, James G. Wilson

Law Faculty Articles and Essays

This article completes a two-part series studying the constitutional jurisprudence of Judges Antonin Scalia, Richard Posner, Robert Bork, Frank Easterbrook, and Ralph Winter Jr., five conservative academics appointed by President Reagan to the United States Court of Appeals. Judge Scalia has recently been appointed to the Supreme Court of the United States. In a previous article, published in the last issue of the University of Miami Law Review, I evaluated these five jurists' constitutional scholarship by contrasting their views with those of Edmund Burke, the originator of political conservative theory. That article tested Burke's wariness of political abstractions and his …

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Terror And Terrorism: There Is A Difference, David F. Forte Jan 1986

Terror And Terrorism: There Is A Difference, David F. Forte

Law Faculty Articles and Essays

To formulate an effective legal and moral response to terrorism, fundamental differences must be acknowledged. We must realize that all acts of terror are not legally interchangeable. We should not create legal instruments that confound essential dissimilarities. We should acknowledge that terrorism is an organized, low level attack by groups trying to destroy the Western legal and moral order. We should recognize that many such terrorist groups have been given purported legitimacy by a distorted notion of self-determination and by recognition within many international bodies. Also, we should face the fact that the effectiveness of terrorism is immeasurably enhanced by …

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The Emasculated Role Of Judicial Precedent In The Tax Court And Internal Revenue Service, Deborah A. Geier Jan 1986

The Emasculated Role Of Judicial Precedent In The Tax Court And Internal Revenue Service, Deborah A. Geier

Law Faculty Articles and Essays

This article examines the Tax Court and the Internal Revenue Service. Part I discusses the structural and decision-making evolution of the Tax Court as well as the most common recommendation for change--the creation of a National Court of Tax Appeals. Part II examines the nonacquiescence practice of the Internal Revenue Service and the current state of the law with respect to intracircuit nonacquiescence. The article concludes that an expanded concept of stare decisis can alleviate many of the problems without the massive structural change entailed in the creation of a National Court of Tax Appeals.

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New Jews, New Destruction, Michael Henry Davis Jan 1986

New Jews, New Destruction, Michael Henry Davis

Law Faculty Articles and Essays

We see in recent developments what is, essentially, a New Diaspora composed of Jews, whether in contemporary Israel or not, who share a ghetto mentality, afraid of what others might take as a sign of weakness and perhaps thinking of their Jewishness itself simply as vulnerability instead of a source of insuperable strength. Within Israel, they sometimes call themselves the "New Jews," but their attitudes betray them. Such a mind-set has been inherited from an older generation of Jews who, in their formative years, had no strong Israel to make all thoughts of Judaism as weakness seem absurd. The New …

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I Know It's Not Racism, But What Is It?, Michael H. Davis Jan 1986

I Know It's Not Racism, But What Is It?, Michael H. Davis

Law Faculty Articles and Essays

The author recalls the founding of the state of Israel, and discusses the influence of patriotism and Zionism.

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The Law/Politics Distinction, The French Conseil Constitutionnel, And The U.S. Supreme Court, Michael H. Davis Jan 1986

The Law/Politics Distinction, The French Conseil Constitutionnel, And The U.S. Supreme Court, Michael H. Davis

Law Faculty Articles and Essays

A dispute burns across the landscape of French constitutional law regarding the juridical nature of the French constitutional "Supreme Court", the Conseil constitutionnel: is it a court? Both French and American scholars have claimed that, despite superficial similarities between the U.S. Supreme Court and the French Conseil constitutionnel, the American system of judicial review "can have no counterpart in the French system", that French legal and political theory is inconstistent with an effective supreme court, that there is "no possibility" that the French and American systems could surmount this "major difference", and that the Conseil is simply not a "true …

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Hypnotically Refreshed Testimony: Is It Legally Relevant To A Criminal Proceeding In Ohio, Thomas H. Allison Jan 1986

Hypnotically Refreshed Testimony: Is It Legally Relevant To A Criminal Proceeding In Ohio, Thomas H. Allison

Cleveland State Law Review

In the past twenty years a growing number of courts, both state and federal, have addressed the problem of the admissibility in a criminal trial of testimony by a witness whose memory has been "refreshed" by the use of pre-trial hypnosis. Some courts are of the opinion that hypnosis is nothing more than a memory aid, to be treated like any other device to refresh recollection. Other courts believe hypnosis is more of a "science," and as such should be treated consistently with the rules for the admission of other scientific evidence. While the reliability of using hypnosis to refresh …

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