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Articles 1 - 30 of 43
Full-Text Articles in Law
When Is A Car A Bicycle And Other Riddles: The Definition Of A Security Under The Federal Securities Laws, M. Thomas Arnold
When Is A Car A Bicycle And Other Riddles: The Definition Of A Security Under The Federal Securities Laws, M. Thomas Arnold
Cleveland State Law Review
In Marine Bank v. Weaver, the United States Supreme Court decided that a certificate of deposit purchased from a federally-regulated bank was not, under the circumstances of the case, a security under federal laws. Several recent federal court cases have considered the question of the status of certificates of deposit under factual circumstances somewhat different from Weaver. Two of these cases provide an interesting study of the uncertainty that continues to surround the definition of a security. And despite the lengthy definitions of "security" found in federal securities laws, much uncertainty remains as to exactly what is included within the …
The Medical Improvement Standard: An Ounce Of Presumption Is Worth A Pound Of Cure, Diane Jankowski
The Medical Improvement Standard: An Ounce Of Presumption Is Worth A Pound Of Cure, Diane Jankowski
Cleveland State Law Review
Massive termination of Social Security disability benefits has stirred considerable controversy over the procedure employed to separate wrongfully-terminated, deserving recipients from malingerers. After meeting the statutory definition of "disability," most recipients are not automatically granted continuous benefits. Rather, the Social Security Administration undertakes periodic investigations to determine whether recipients continue to remain eligible for disability compensation. Procedural questions concerning terminations were settled by a 1982 Amendment to the Social Security Act that mandated face-to-face reconsideration hearings. Problems remained, however, regarding which party bore the burden of proof in presenting evidence of continued disability. Although this Note will briefly outline the …
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Cleveland State Law Review
Ohio courts have struggled to divine the constitutional mandate of the reasonable doubt standard while simultaneously attempting to give a viable interpretation to the state's relatively new manslaughter law. Their approach has resulted in an unusual definition of manslaughter which has proven particularly unworkable. In addition, several other problems have developed as a result of the enactment of the manslaughter law. First, the policy espoused by the Supreme Court in its decisions has been abrogated under Ohio law. Second, Ohio law nearly abandons the distinction between murder and manslaughter. This is especially dangerous in light of the presumption of criminal …
Surrogate Motherhood And Tort Liability: Will The New Reproductive Technologies Give Birth To A New Breed Of Prenatal Tort, Nancy Hansbrough
Surrogate Motherhood And Tort Liability: Will The New Reproductive Technologies Give Birth To A New Breed Of Prenatal Tort, Nancy Hansbrough
Cleveland State Law Review
It seems inevitable that new causes of action will evolve as more childless couples resort to the use of the new reproductive methodologies. The prenatal tort claims abounding in precedent today lay a firm foundation for the recognition of a new form of tort liability. This Note will first examine briefly the history of prenatal torts, and present the status of recovery today. The Note will then examine the history and current status of the doctrine of parent-child immunity in the United States. Concentrating on these two concepts, the nature of a tort claim by an injured child for prenatal …
Erisa: Punitive Damages For Breach Of Fiduciary Duty, Deborah A. Geier
Erisa: Punitive Damages For Breach Of Fiduciary Duty, Deborah A. Geier
Law Faculty Articles and Essays
Fiduciary duty principles are central to the protection provided by the Employee Retirement Income Security Act (ERISA or Act). The law is unsettled, however, about whether Congress intended to extend punitive damages, a typical remedy for breach offiduciary duty under the common law, to the applicable ERISA provision. This Note argues that the plain meaning of the ERISA fiduciary duty provision, the legislative history underlying the purposes and policies of the Act, and the availability of punitive damages under analogous law, taken together, support the recovery of punitive damages for a breach of ERISA's fiduciary duty provision.
Death Of A Salesman's Doctrine : A Critical Look At Trademark Use, Michael Henry Davis
Death Of A Salesman's Doctrine : A Critical Look At Trademark Use, Michael Henry Davis
Law Faculty Articles and Essays
A trademark is a salesman. It does the work of its owner by wearing a smile, by presenting a good image, and in Willy Loman's words, by being well liked. It is, of course, the usual view that the death of the salesman, Willy Loman, was a suicide. Due to the assault upon the requirement of prior trademark use and the growth of a token use doctrine, what happened to Willy Loman has happened to the trademark use doctrine. In the end, it seemed too expensive and it was killed off—partially by its own hand, due to its own internal …
The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson
The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson
Law Faculty Articles and Essays
In interpreting the Constitution the Supreme Court has increasingly referred to The Federalist papers, a series of essays written by Alexander Hamilton, James Madison, and John Jay during the struggle to ratify the Constitution. This article describes in narrative form how the Court has incorporated The Federalist into its opinions, and summarizes how constitutional historians and political scientists have evaluated The Federalist and the Constitution. This format highlights the limited nature of the Court's historical inquiry by demonstrating that the Court and constitutional scholars have been traveling in parallel universes. Either the Court has ignored or been unaware of the …
Wrongful Death Actions And Section 1983, Steven H. Steinglass
Wrongful Death Actions And Section 1983, Steven H. Steinglass
Law Faculty Articles and Essays
This article examines the use of 42 U.S.C. Section 1983 in cases in which violations of federal law by state or local officials result in a death and the rules that govern the existence of the cause of action and the available damages. State remedies for the protection of individual rights from official misconduct are often inadequate, and public protection is frequently unavailing. Thus, many plaintiffs seek alternative remedies, and in recent years the estates, personal representatives and survivors of victims of wrongful killings have increasingly turned to federal law and federal courts. Section 1983, however, is a threadbare statute, …
Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part I)-A Dialogue On Prejudicial Concurrences, Joel J. Finer
Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part I)-A Dialogue On Prejudicial Concurrences, Joel J. Finer
Law Faculty Articles and Essays
On July 5, 1984, the Supreme Court in Leon v. United States held that where law enforcement officials execute a search warrant issued in violation of the dictates of the fourth amendment but act in the "good faith," "objectively-reasonable" belief that the warrant was constitutionally valid, the fruits of the search should not (with a few exceptions) be excluded from evidence under the exclusionary rule. On June 8, 1983, in Illinois v. Gates, the Supreme Court, after calling for and receiving briefs and arguments on the same issue of whether the exclusionary rule should be modified, concluded, for reasons of …
Introduction To Debate (Between N. Morris And R. Bonnie): Should The Insanity Defense Be Abolished?, Joel J. Finer
Introduction To Debate (Between N. Morris And R. Bonnie): Should The Insanity Defense Be Abolished?, Joel J. Finer
Law Faculty Articles and Essays
The author introduces a debate between Professor Norval Morris and Professor Richard Bonnie on the insanity defense.
Islamic Law And The Crime Of Theft, David F. Forte
Islamic Law And The Crime Of Theft, David F. Forte
Law Faculty Articles and Essays
This article introduces the concept of theft in Islamic law. As such, it does not pretend to be comprehensive either in the data it puts forth or in its analysis. Rather, the Article raises a number of issues for discussion, and offers, most tentatively, suggested answers to the following points: 1) criminality; 2) what possible justifications exist for such an extreme penalty; 3) what were the requirements for conviction; and 4) some concluding observations as to why the classical jurists encumbered a prosecution for theft with so many restrictions.
Loosing The Shackles Of No-Fault In Strict Liability: A Better Approach To Comparative Fault, Nick Satullo
Loosing The Shackles Of No-Fault In Strict Liability: A Better Approach To Comparative Fault, Nick Satullo
Cleveland State Law Review
Products liability law in America has crossed a new threshold. The current trend toward comparative fault in strict products actions moves with such force that it is only a question of time before it assumes majority status. The fundamental question of what comparative fault means to products liability law has yet to be answered. Of the courts that have ruled on comparative fault and strict liability, none have offered elaborate rationales for their position; those in favor maintain that "equity" demands comparative fault, while those against stress that fault and strict liability are incapable of comparison. As this Note shall …
The Artificiality Of Economic Models As A Guide For Legal Evolution, Nancy K. Kubasek
The Artificiality Of Economic Models As A Guide For Legal Evolution, Nancy K. Kubasek
Cleveland State Law Review
This Comment focuses on the frequent conflict between orthodox economic theory and the direction taken by legislation or the common law. Several specific areas of legal decision making are discussed as illustrations of this conflict with an emphasis on the artificiality of the economic thinking that caused the disagreement. The purpose of this analysis is to caution those who would use economic models as their primary beacon for prescribing future legal developments. The first section of this Comment looks at three specific controversial areas in which orthodox economic arguments are frequently considered: wage and price controls, comparable worth claims, and …
When Is A Car A Bicycle And Other Riddles: The Definition Of A Security Under The Federal Securities Laws, M. Thomas Arnold
When Is A Car A Bicycle And Other Riddles: The Definition Of A Security Under The Federal Securities Laws, M. Thomas Arnold
Cleveland State Law Review
In Marine Bank v. Weaver, the United States Supreme Court decided that a certificate of deposit purchased from a federally-regulated bank was not, under the circumstances of the case, a security under federal laws. Several recent federal court cases have considered the question of the status of certificates of deposit under factual circumstances somewhat different from Weaver. Two of these cases provide an interesting study of the uncertainty that continues to surround the definition of a security. And despite the lengthy definitions of "security" found in federal securities laws, much uncertainty remains as to exactly what is included within the …
The Artificiality Of Economic Models As A Guide For Legal Evolution, Nancy K. Kubasek
The Artificiality Of Economic Models As A Guide For Legal Evolution, Nancy K. Kubasek
Cleveland State Law Review
This Comment focuses on the frequent conflict between orthodox economic theory and the direction taken by legislation or the common law. Several specific areas of legal decision making are discussed as illustrations of this conflict with an emphasis on the artificiality of the economic thinking that caused the disagreement. The purpose of this analysis is to caution those who would use economic models as their primary beacon for prescribing future legal developments. The first section of this Comment looks at three specific controversial areas in which orthodox economic arguments are frequently considered: wage and price controls, comparable worth claims, and …
Introduction, John Makdisi
Legal Issues In Creating Ppo's, Douglas L. Elden, Richard A. Hinden
Legal Issues In Creating Ppo's, Douglas L. Elden, Richard A. Hinden
Journal of Law and Health
The development of alternate health care delivery and reimbursement mechanisms, particularly those known as "Preferred Provider Organizations" (PPOs), raise a multitude of legal issues. Each PPO will exist in different market conditions and under different state laws. Therefore, while this Article seeks to identify and discuss the legal issues, it cannot provide definitive answers. This Article can, however, serve as a guideline or checklist for PPO analysis and provide recommendations and alternatives for dealing with the legal roadblocks that occur in the formation and operation of PPOs. This discussion will be general in nature and cannot substitute for legal advice …
Patients, Agents, And Informed Consent, Joram Graf Haber
Patients, Agents, And Informed Consent, Joram Graf Haber
Journal of Law and Health
In Part II of this article, I develop the "patient" / agent distinction from the vantage point of humanistic ethics. This is the view that the knowledge of man is the basis for establishing norms and values. In Part III, I argue that the "patient" / agent distinction correlates the the Kantian notions of heteronomy / autonomy, and disrespect for autonomy / respect for autonomy. In Part IV, I show that the "patient" / agent distinction also correlates with the standards of disclosure the courts have adopted in deciding informed consent cases. Finally, in Part V, I show how the …
Attitudinal And Legal Factors In Professional Advertising, Ruth Bogatyrow Kraft
Attitudinal And Legal Factors In Professional Advertising, Ruth Bogatyrow Kraft
Journal of Law and Health
This Article is concerned with advertising by professionals, a phenomenon which has taken on greater importance and become more controversial as its impact has grown over the past decade. Part II of this Article discusses the legal precedents which permitted the development of professional advertising in general. In Part III the body of literature concerning professional and consumer attitudes towards promotional behavior is reviewed. Part IV presents and evaluates the initial results of a survey of plastic surgeons. The promotional attitudes of plastic surgeons are an especially interesting subject of study, as advertising by this medical sub-specialty presents in a …
Medical Authority And Infanticide, Patrick A. Malone
Medical Authority And Infanticide, Patrick A. Malone
Journal of Law and Health
This Article tries to explicate the way in which legal regulation interacts with the medical profession's theories of health and illness in order to construct the social reality of health care and of specific issues such as infanticide. Part II of the Article demonstrates how the professional autonomy granted to medicine by the legal system makes possible professional domination over individual decisions and reinforces a societal view of health issues compatible with continued medical dominance. Part III shows how this legal dominance expresses itself in the infanticide context. Part IV analyzes basic flaws in the presumptions underlying the legal system …
Shufcah: Origins And Modern Doctrine, Farhat J. Ziadeh
Shufcah: Origins And Modern Doctrine, Farhat J. Ziadeh
Cleveland State Law Review
Shufah is an excellent example of the continuity of an Islamic institution and of the capacity of that institution for change. Although it is not, strictly speaking, a part of personal status law, which is said to be the only part of Islamic law that is being applied in Islamic countries, it has survived in a recognizable form. Islamic countries, in their attempts at law reform, have effected little change in the traditional law of personal states, only after heated discussions and controversy. On the other hand, profound changes were introduced into the traditional law of preemption with little controversy. …
The Logic Of Legal Reasoning In Religious And Non-Religious Cultures: The Case Of Islamic Law And The Common Law, Wael B. Hallaq
The Logic Of Legal Reasoning In Religious And Non-Religious Cultures: The Case Of Islamic Law And The Common Law, Wael B. Hallaq
Cleveland State Law Review
It is only reasonable to assume that dissimilar legal systems possess dissimilar patterns of legal reasoning. Inasmuch as two legal systems differ in their structure and function, they also differ in the types of arguments they employ in their service. It may well be argued that law is, in the final analysis, the product of the premises and methods from and through which it is derived. Two such legal systems which display a vast difference in their overall structure and function are Islamic law and the common law. This paper proposes to shed some light on the logic of legal …
Gates, Leon, And The Compromise Of Adjudicative Fairness (Part Ii): Of Aggressive Majoritarianism, Willful Deafness, And The New Exception To The Exclusionary Rule, Joel Jay Finer
Cleveland State Law Review
Part I examined in a dialogue form the idea that Justice White and other members of the Leon majority had prejudged issues of law in earlier cases––pre-committed themselves in violation of their duty of impartiality––by elaborating in detailed, cohesive, comprehensive opinions, reasons why existing law was incorrect and had to be changed to permit a "good-faith, objective police reasonableness" exception to the exclusionary rule. These prejudgments precluded fair consideration of the merits in Leon. Beyond that, the Leon opinion itself, considered in view of the arguments of counsel and the scholarship in currency, evinced an agenda-driven pre-commitment to its outcome; …
Islamic Law And The Crime Of Theft: An Introduction, David F. Forte
Islamic Law And The Crime Of Theft: An Introduction, David F. Forte
Cleveland State Law Review
This Article introduces the concept of theft in Islamic law. As such, it does not pretend to be comprehensive either in the data it puts forth or in its analysis. Rather, the Article raises a number of issues for discussion, and offers, most tentatively, suggested answers to the following points: 1) whether theft in Islamic law properly belongs to the species of manifest criminality; 2) what possible justifications exist for such an extreme penalty; 3) what were the requirements for conviction; and 4) some concluding observations as to why the classical jurists encumbered a prosecution for theft with so many …
Asbestos: The Private Management Of A Public Problem, Harry H. Wellington
Asbestos: The Private Management Of A Public Problem, Harry H. Wellington
Cleveland State Law Review
Under the existing judicial system in America, asbestos litigation has reached epidemic proportions. It is extravagantly expensive and grotesquely inefficient. Conceivably billions of dollars are at stake in this group effort, and the fair treatment of thousands of very sick people, and thousands more who one day will be ill as a result of asbestos, may turn on the success of this private initiative (the Wellington Group) to design a private agency that will fairly and effectively manage the bulk of asbestos claims and asbestos product liability litigation. Section I provides background information on the asbestos problem: from the material …
The Discovery Rule: Fairness In Toxic Tort Statutes Of Limitations, Bill Shaw, Pat Cihon, Malcolm Myers
The Discovery Rule: Fairness In Toxic Tort Statutes Of Limitations, Bill Shaw, Pat Cihon, Malcolm Myers
Cleveland State Law Review
The costs associated with the disposal of toxic waste can be classified in two ways. The first category is made up of environmental losses such as the contamination of rivers, lakes, and ground water with the resulting destruction of aquatic life, wildlife, and vegetation and includes expenses incurred in cleanup. The second category is comprised of losses sustained by individuals and includes both property damage and physical injury resulting from direct or indirect contact with hazardous wastes. Injured individuals have two options in their pursuit of compensation: statutory and common law. This Article argues that statutory recourse is not only …
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Cleveland State Law Review
Ohio courts have struggled to divine the constitutional mandate of the reasonable doubt standard while simultaneously attempting to give a viable interpretation to the state's relatively new manslaughter law. Their approach has resulted in an unusual definition of manslaughter which has proven particularly unworkable. In addition, several other problems have developed as a result of the enactment of the manslaughter law. First, the policy espoused by the Supreme Court in its decisions has been abrogated under Ohio law. Second, Ohio law nearly abandons the distinction between murder and manslaughter. This is especially dangerous in light of the presumption of criminal …
Asbestos: The Private Management Of A Public Problem, Harry H. Wellington
Asbestos: The Private Management Of A Public Problem, Harry H. Wellington
Cleveland State Law Review
Under the existing judicial system in America, asbestos litigation has reached epidemic proportions. It is extravagantly expensive and grotesquely inefficient. Conceivably billions of dollars are at stake in this group effort, and the fair treatment of thousands of very sick people, and thousands more who one day will be ill as a result of asbestos, may turn on the success of this private initiative (the Wellington Group) to design a private agency that will fairly and effectively manage the bulk of asbestos claims and asbestos product liability litigation. Section I provides background information on the asbestos problem: from the material …
Intellect Beyond Law: The Case Of Legal Education, Peter W. Gross
Intellect Beyond Law: The Case Of Legal Education, Peter W. Gross
Cleveland State Law Review
Conceptions of intellect long basic to Western academic thought increasingly are being called into question. These conceptions, which equate intellect with finding and applying the "laws" that govern phenomena, have been seen to divorce us from realities of choice and self-creation that underlie the human experience. The first half of the Article develops these themes, suggesting the philosophical and practical importance of alternative, more expansive conceptions of intellect. The second half then illustrates these points, using legal education as a case study.
Intellect Beyond Law: The Case Of Legal Education, Peter W. Gross
Intellect Beyond Law: The Case Of Legal Education, Peter W. Gross
Cleveland State Law Review
Conceptions of intellect long basic to Western academic thought increasingly are being called into question. These conceptions, which equate intellect with finding and applying the "laws" that govern phenomena, have been seen to divorce us from realities of choice and self-creation that underlie the human experience. The first half of the Article develops these themes, suggesting the philosophical and practical importance of alternative, more expansive conceptions of intellect. The second half then illustrates these points, using legal education as a case study.