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Masthead And Front Matter, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

The Gamut: A Journal Of Ideas And Information, No. 25, Winter 1988, Cleveland State University

The Gamut Archives

CONTENTS OF ISSUE NO. 25, WINTER, 1988

Louis T. Milic: Editorial, 2

Shutting Up

Eric Johannesen: George W Howe's Euclid Avenue, 5

A walk past turn-of-the-century mansions

Hester Lewellen: Who Gets the Armrest?, 16

A study of the territorial urge in theaters

Jack Matthews: Fiction, 20

Recurring Dreams

Edward R. Haymes: Thidrek's Saga: A German Storybook at a Medieval Norwegian Court, 33

Blood, lust, and treachery in verse

Albert Borowitz: The Judge's Black Cadillac, 40

The facts about the "third man" at Death Corner

Jeff Erdie: Archaeology in the Flats: The Dig at …

How To Do A Perpetuities Problem, John Makdisi

Cleveland State Law Review

The most difficult aspect of the rule against perpetuities is figuring out a sure-fire way to determine whether an interest created in a conveyance is valid or invalid. The meaning of the rule itself is not hard to fathom. Whenever the interest might vest too remotely it is invalid, and it becomes possible to vest remotely if there is a chance that it could vest more than twenty-one years after everyone alive at the time of the conveyance has died. Whether the interest violates the rule against perpetuities is determined at the moment the conveyance creating the interest becomes effective. …

Fourth Amendment Right Or Fourth Amendment Wrong: Ins Power After The Immigration Reform And Control Act Of 1986, Steven L. Miller

Cleveland State Law Review

This Note examines the legal system's scrutiny of the fourth amendment implications of INS workplace sweeps and suggests that the recent adoption of the IRCA (Immigration Reform and Control Act) and its criminal sanctions dictate the development of a higher standard for upholding the constitutionality of workplace raids. Consideration is first given to the type of INS activity which is under scrutiny in the course of a workplace sweep. Next, Part III will examine the development of case law pertaining to the current power of the INS to constitutionally conduct workplace sweeps under the fourth amendment. Part IV will then …

Advising The Family Business Owner In Succession Planning: The Daughter Option, Debra G. Simms

Cleveland State Law Review

This article will explore the role of the family business in our economy, discuss the importance of its continuity, and suggest that women should be given a greater opportunity to succeed in their own family's business. The final section will analyze whether lawyers can respond to the changing values prompted by the women's movement and counsel clients to explore the possibility that their daughter may be the best successor to the family business.

Liability For Post-Transfusion Aids: An Analysis And Proposal, Lawrence K. English

Journal of Law and Health

The nature of the acquired immune deficiency syndrome (AIDS) epidemic and the methods used to protect the blood supply from contamination by the AIDS virus indicate that an increasing number of actions seeking recovery for post-transfusion infection may reach the courts in the next decade. The theories under which plaintiffs usually seek relief for transfusion-related infection - e.g., negligence or strict liability - lead to complex factual, procedural, and public policy problems which do not readily lend themselves to consistent, just adjudication.

What Has Happened Since Chakrabarty, Jane M. Marciniszyn

Journal of Law and Health

It is conventional wisdom that the patent system is designed to undergrid the investment in pushing technology forward. The patent system is innovation-oriented. And (sic) it functions most effectively in the expensive, breakthrough technologies, where uncertainties of success or payback abound. If, in assessing the risk of commitment, the penalties of failure outweigh the prizes of success, the prudent money will go elsewhere. The patent system moves the equation to the right, not by better assuring success (for only public needs and market values can do that), but by aiding success through offering the innovator a temporary respite from non-innovative …

The Freedom To Be Psychotic, Joram Graf Haber

Journal of Law and Health

The following will examine both involuntary commitment and deinstitutionalization, as well as some recent and rather novel proposals that have been championed by those who advocate neither. I refer here to the so called "Ulysses Contract" as well as to "mandatory out-patient treatment." My concern is primarily with the moral and legal aspects of these practices and to that end will focus on more conceptual matters. I will conclude by defending a concept of freedom which does greater justice to patients' needs than does the one currently employed.

Assessment Of Carcinogenic Risk And The Delaney Clause: The Search For A Better Standard, Mark A. Cleaves

Journal of Law and Health

This article will focus upon the legislative history and subsequent case law dealing with the Delaney Clause and it will include the rationale and limitations of the provision. In order to regulate carcinogens one must have a clear understanding of the cancer processes. Therefore a brief discussion of the biological parameters involved is warranted. The purpose of this discussion is to find a more rational alternative to the Delaney Clause. The use of quantitative risk assessment as an approach to regulate carcinogens found in food is also discussed. By combining the purposes of the original (and current statutory provisions with …

State And Local Government Legal Responsibilities To Provide Medical Care For The Poor, Michael A. Dowell

Journal of Law and Health

This article will provide an overview of the extent to which state and local government entities must provide medical care for the poor and ways to enforce these obligations. Delineation of specific medical assistance program responsibilities requires careful review of the legislative intent and statutory purpose. Remedies for state or local failure to meet statutory or constitutional obligations to provide indigent medical care will be discussed in the enforcement section.

Periodic Payment Awards: The Prescription For The Medical Malpractice Crisis In Ohio, Laurie G. Steiner

Journal of Law and Health

The focus of this article is the use of periodic payment plans generally as a remedy to the medical malpractice crisis. A complete understanding of the periodic payment judgment, however, is impossible without an exploration of the general common law treatment of personal injury and medical malpractice awards. Once the historical background is established, this article will examine Ohio's new statute in light of the Model Periodic Payment of Judgments Act and the law existing in other jurisdictions. This article will also analyze the advantages of the periodic payment and its viability as a solution for the medical malpractice crisis.

Legal Issues In The Healthcare Settings Aids: Current State Of The Law - An Overview, Carol A. Mclaughlin

Journal of Law and Health

Presented as part of an address on the current state of the law at the AIDS Symposium held at Cleveland-Marshall College of Law on March 11, 1988.

Annotated Bibliography On Aids, Edmund F. Santa Vicca

Journal of Law and Health

This bibliography was included in the AIDS Symposium held at Cleveland-Marshall College of Law on March 11, 1988 as a helpful reference guide. The Journal would like to thank Edmund Santa Vicca for his ever continuing support in the quest for knowledge.

Does Ohio Provide Autistic Children A Free Appropriate Public Education, Sheila M. Mccarthy

Journal of Law and Health

Autistic children are handicapped children within the meaning of the EAHCS, therefore, they are entitled to receive "free appropriate public education." This Note will discuss whether Ohio currently provides autistic children a "free appropriate public education" in accordance with the EAHCA. Ohio's parallel statute, the State Education of Handicapped Act (State Act), is compared to similar legislation currently existing in various other states throughout the United States. Areas in the State Act needing clarification are scrutinized and stutory revisions are recommended. This Note concludes that Ohio should adopt additional safeguards to ensure that autistic children receive a "free appropriate public …

Addressing The Adversarial Dilemma Of Civil Discovery, Michael E. Wolfson

Cleveland State Law Review

There can be no question that the emergence of modern pretrial discovery has contributed enormously to making the conduct of a lawsuit a more fair, just, and efficient process. But discovery also offers a substantial potential for mischief. Since few civil cases today are actually resolved at trial, trouble in the pretrial phase of litigation signals potentially major problems in the legal system's role as the nation's primary dispute resolution mechanism. It is the purpose of this Article to examine the issue of discovery abuse in light of the fundamental adversarial dilemma of the discovery process and propose a new …

When The Teachers And Parents Can't Agree, Who Really Decides - Burdens Of Proof And Standards Of Review Under The Education For All Handicapped Children Act, Thomas F. Guernsey

Cleveland State Law Review

Burdens of proof and standards of review can have a significant impact on the outcome of proceedings brought under the Education for All Handicapped Children Act and deserve a more consistently thoughtful approach than has been provided to date. Any confusion that exists may well be the result of courts, including the United States Supreme Court, failing to distinguish the various parts of the administrative process. The simple step of looking realistically at the administrative process (rather than lumping together Local Education Authorities, State Education Authorities, local due process hearings, and state administrative appeals, as the Supreme Court did in …

Academic Research And Advocacy Research, Victor L. Streib

Cleveland State Law Review

Research is something we all do. Some research is a necessary evil, some a delightful passage, some unmitigated drudgery. Our general concern this evening is to hone the concept of legal research, at least as it is manifested by law professors and lawyers. More specifically, how does academic research and advocacy research differ in the world of law and what unique obligations might such differences suggest for the law professoriate? The general issue is the difference, perhaps conflict, between research aimed primarily at discovering truth and expanding knowledge versus research aimed primarily at mounting an argument to achieve victory for …

Management's Unilateral Implementation Of Drug Testing Programs: Are The Unions Left Holding The Jar, Royce Robert Remington

Cleveland State Law Review

This Note demonstrates that organized labor's effectiveness in negotiation is imperative to the adequate protection of its members from invasive drug testing procedures. Negotiation must be achieved by asserting that drug testing is a mandatory subject of bargaining for the reasons set forth in section III. The best results in negotiation will be evidenced where the union representative is aware of both the technical and procedural shortcomings of drug testing, as well as, the inequities of the collective bargaining agreement in question. For these reasons, this Note will highlight those areas which the unions must address in negotiation in order …

Broken Promises And Involuntary Confessions: May A State Introduce Incriminating Statements Made By A Defendant As A Result Of Promises In A Plea Bargain Agreement If The Defendant Breaches That Agreement, Bradford C. Mank

Cleveland State Law Review

There is a substantial constitutional question concerning whether admissions made pursuant to a plea bargain that the defendant has breached are admissible under the fifth amendment's privilege against compelled self-incrimination or the due process clauses of the fifth and fourteenth amendments. Courts have reached conflicting results in regard to whether such statements are voluntary.10 This Article argues that it is difficult to resolve whether such admissions are voluntary because courts have not provided a clear definition as to under what circumstances a confession is voluntary in accordance with the dictates of the fifth and fourteenth amendments. Instead of focusing on …

Fourth Amendment Standing: Flat On Its Face, Wallace W. Sherwood

Cleveland State Law Review

The United States Supreme Court has recently reevaluated its concept of standing for claims involving violations of the fourth amendment. The apparent purpose for reevaluation of this fundamental constitutional principle was the Court's desire to respond to the debate currently raging over the scope of the exclusionary rule. Whether one perceives the fourth amendment as second to none in importance in the Bill of Rights or views it as a nuisance is not the issue here. Rather, the issue is whether, in its effort to limit the exclusionary rule, the Court has stripped the people of the United States of …

Masthead, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

Coping And Planning For Uncertainties In The Development Of Exceptions To The Employment-At-Will Doctrine, Robert J. Churilla

Cleveland State Law Review

This Article will focus on how an employer can cope and plan for uncertainties in discharging an employee. After giving a general overview of the employment-at-will doctrine and the development of legal exceptions to its application, the discussion will center on four areas in which employers must address a changing relationship with its employees. These four areas include the planning of employment handbooks, job evaluations, developing personnel policies and planning for wrongful discharge litigation. The Article will conclude with some observations and thoughts on the benefits of coping with and planning for uncertainties in this area of employer-employee relations.

Post Smith V. Van Gorkom Director Liability Legislation With A Proactive Perspective, Lynn A. Howell

Cleveland State Law Review

The Van Gorkom decision was viewed by many as the catalyst which triggered the dramatic increases in the number of shareholder suits filed, director and officer (hereinafter D & 0) insurance policy cancellations, skyrocketing premiums, and the flight of the outside directors.' Devastating decisions like Van Gorkom could be prevented or at least be of a lesser magnitude if corporate counsel chose to use the proactive approach to corporate representation by employing the techniques of preventive law. The theory is similar to the time honored cliché "an ounce of prevention is worth a pound of cure." This Article will address …

Where Have All The Directors Gone: Corporate Director And Officer Liability And Coping With The Insurance Crisis, Richard A. Myers Jr.

Cleveland State Law Review

Smith v. Van Gorkom set in motion a trend of increased exposure for directors and officers of American corporations....Directors and officers insurance may be either unavailable or unaffordable,...As a general rule, the best way to cope with the change in the business environment and the insurance crisis is to plan in advance for it. Through careful corporate structuring and planning, while remaining flexible, a small company can maximize their protection from liability. The factors to consider range from a careful drafting of the corporate articles and bylaws to the creation of captive insurance companies.

How Lawyers Deal With The Recent Changes In The Area Of Environmental Law, Dorothea M. Polster

Cleveland State Law Review

Recent changes in the area of environmental law regarding the cleanup of hazardous waste sites, particularly in the federal arena, are forcing lawyers to revise their strategy when advising commercial real estate developers. Lawyers have traditionally focused upon the economic aspects of a commercial real estate transaction such as the enforceability of leases, mortgage encumbrances, restrictions, title issues, and site inspection of the premises. In addition to focusing upon these traditional aspects, new and important emphasis must be placed on the analysis and determination of the condition of the physical property itself. Recent federal legislation such as the Comprehensive Environmental …

Scarlet Letter Punishment: Yesterday's Outlawed Penalty Is Today's Probation Condition, Leonore H. Tavill

Cleveland State Law Review

The use of alternatives has sparked a whole host of new issues. The most significant of these new issues is the determination of who should or should not receive probation' and what kind of probation condition can be justified for certain criminals. Desperation, indefinite statutory provisions, and the resulting judicial discretion afforded to those on the bench has led to the imposition of some probation conditions which are unnecessarily harsh, unjustified, and possibly unconstitutional. Of particular concern is the growing use of "scarlet letter" probation conditions which require signs to be posted on the offender's property warning the public by …

Ohio Landlord-Tenant Reform Revisited, Edward G. Kramer, Marilyn Tobocman, Kenneth J. Kowalski, James Buchanan

Cleveland State Law Review

The "gentle readers" may be surprised by the analogy suggested between the reform of landlord-tenant law and the experience of Alice and the Queen. However, the events surrounding the enactment of Amended Substitute Senate Bill 103 were as perplexing as those in Lewis Carroll's story. Those opposing real reform, principally the real estate industry, were successful in weakening the proposed legislation. Consequently, the primary goal of the sponsors of landlord-tenant legislation in Ohio was not met by the legislation finally enacted. As this Article will demonstrate, the interpretation of the Act by the courts of Ohio has proven true the …

State Of The Art Evidence Under Ohio Strict Products Liability Law, Chris L. Hurlbut

Cleveland State Law Review

While the evolution of strict products liability has not generated as much jurisprudence in Ohio as it has in other states, the Ohio law that has evolved clearly reflects the national confusion. Frequently, the confusion both nationally and in Ohio results from the courts' failure to adequately separate the many issues that arise in a strict products liability action. The purpose of this Note is to focus on one narrow issue in Ohio strict products liability law-the admissibility of state of the art evidence. The Ohio Supreme Court has never addressed this question, and other jurisdictions are split on the …

Toward A Revisionist History Of The Supreme Court, Mark Tushnet

Cleveland State Law Review

The bicentennial year provoked a reconsideration of not only the era of the framing but of constitutional history as a whole. At one point I thought that I might participate in that effort by writing a history of the Supreme Court, updating Robert McCloskey's classic book in light of recent scholarship. It turned out that that project was too daunting for me. There was too much material to assimilate before I could feel comfortable in trying to present or even develop a history of the Supreme Court. This essay is, therefore, only a sketch of a revisionist history of the …

Mergers And Acquisitions: The Quintessence Of Change, James C. Freund

Cleveland State Law Review

I wrote a book in the mid-'70's entitled ANATOMY OF A MERGER, a guide to handling negotiated acquisitions. Looking back from the vantage point of a decade later, I was struck by the tremendous changes that had taken place in terms of how acquisitions of public companies are accomplished. Today, the hostile takeover has so permeated the public company acquisition scene that it has entirely altered the way that lawyers and others who ply this trade accomplish their goals.