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Articles 1 - 23 of 23
Full-Text Articles in Law
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 …
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. …
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 …
What Has The Supreme Court Done - The Home Office Deductions Is Virtually Eliminated After Soliman, Robert J. Gerlack
What Has The Supreme Court Done - The Home Office Deductions Is Virtually Eliminated After Soliman, Robert J. Gerlack
Cleveland State Law Review
The purpose of this comment is to discuss the relatively short history of Internal Revenue Code § 280A and to discuss the cases leading up to the United States Supreme Court decision of Commissioner v. Soliman. The scope of the discussion will be limited to I.R.C. § 280A(c)(1)(A), which provides for a home office deduction if the dwelling unit is exclusively used on a regular basis and is the principal place of business for any trade or business. As will be discussed below, the Supreme Court has developed various standards to determine whether a home office deduction will be allowed. …
Are Spread Out Cities Really Safer (Or, Is Atlanta Safer Than New York), Michael E. Lewyn
Are Spread Out Cities Really Safer (Or, Is Atlanta Safer Than New York), Michael E. Lewyn
Cleveland State Law Review
Many commentators believe that low-density, car-dependent cities are safer than older, higher-density cities. According to a 1990 Gallup Poll, most Americans share this view. The poll showed that low-density Sunbelt cities are generally perceived as safer than they really are, and that high-density Frostbelt cities are often perceived as more dangerous than they really are. The purpose of this article is to answer the following questions: 1. How closely do public perceptions of major cities' safety correlate with actual crime rates? 2. Even if high-density cities have lower crime rates, might public perceptions be justified by the possibility that crime …
Piercing The Corporate Veil: A Different Delaware Beyond The Boardrooms, Robert Hornstein, Daniel Atkins
Piercing The Corporate Veil: A Different Delaware Beyond The Boardrooms, Robert Hornstein, Daniel Atkins
Cleveland State Law Review
It is likely that most people today think only of Delaware as a summer vacation destination, or as corporate America's adopted home, but not as home to poverty that bears all the ugly markings of despair, deprivation and neglect. To look at Delaware beyond its boardrooms today is to witness the contradictions and consequences of an economy fueled by the promise that what would be good for the nation's banks and the wealthy would necessarily be good for all Delawareans-and most notably Delaware's poor. Over the course of the last ten years, Delaware's economic renaissance and its legislative centerpiece, the …
Staying Patent Validity Litigation Pending Reexamination: When Should Courts Endeavor To Do So, Steven M. Auvil
Staying Patent Validity Litigation Pending Reexamination: When Should Courts Endeavor To Do So, Steven M. Auvil
Cleveland State Law Review
This note will discuss the circumstances under which it is appropriate for a court to exercise its authority to stay patent validity litigation pending reexamination of the patent-in-suit. The question must be analyzed with due regard to the unique relationship that exists between Patent Office reexamination and district court litigation. As a point of departure, the note explains the substance and procedure of statutory reexamination. Secondly, it will discuss the possible effects that reexamination may have on concurrent litigation in a district court. Thirdly, the note will examine the discernible factors that courts have considered in deciding whether to suspend …
America's Counterrevolution - Unlearned Lessons, Nathaniel R. Jones
America's Counterrevolution - Unlearned Lessons, Nathaniel R. Jones
Cleveland State Law Review
"America's Counterrevolution - Unlearned Lessons" is about America's social revolution -which saw this nation change from a state that constitutionally sanctioned human degradation in the form of slavery and segregation, into one that enshrined in its basic charter human rights and guarantees of equality before the law for all persons. The revolution, in what Justice Marshall calls our "system of constitutional government", made our legal system the wonder of the world, which others constantly seek to emulate. In order to understand what is required of Americans as they find themselves in this counterrevolutionary period with respect to civil rights, there …
Section 1983 Litigation In The Ohio Courts: An Introduction For Ohio Lawyers And Judges, Steven H. Steinglass
Section 1983 Litigation In The Ohio Courts: An Introduction For Ohio Lawyers And Judges, Steven H. Steinglass
Cleveland State Law Review
This review of §1983 litigation in the Ohio courts has three principal goals. First, it provides an introduction to state court §1983 litigation for Ohio lawyers and judges. Commentators have recognized the importance of state court §1983 litigation, and the Supreme Court has begun to pay greater attention to state court §1983 cases. Nonetheless, most §1983 materials focus on the federal courts. Moreover, the few works addressing litigation of §1983 claims in state courts either lack an Ohio focus or, where there is such a focus, deal narrowly with specific Ohio issues. This article seeks to bridge this gap by …
When Defendant Becomes The Victim: A Child's Recantation As Newly Discovered Evidence, Christopher J. Sinnott
When Defendant Becomes The Victim: A Child's Recantation As Newly Discovered Evidence, Christopher J. Sinnott
Cleveland State Law Review
This note will explore the standards for granting new trials within the child recantation setting. It will argue that insistence on respecting the evidentiary statements of children is contrary to common sense and current research. As a result, the standards for new trial ought to be rethought. Part II will analyze the two prevalent standards used by courts to weigh the merit of a new trial motion and will show why both standards present a nearly insurmountable hurdle for a movant to satisfy. Part III will explore the special issues that confront a court each time a young "victim" testifies. …
Re-Righting The Right To Privacy: The Supreme Court And The Constitutional Right To Privacy In Criminal Law, Jana Nestlerode
Re-Righting The Right To Privacy: The Supreme Court And The Constitutional Right To Privacy In Criminal Law, Jana Nestlerode
Cleveland State Law Review
Since the 1970's, federal legislation has expanded privacy rights in nonconstitutional areas. Juxtaposed against this more liberal legislative trend is the action of a significantly more conservative judiciary which has, and is, contracting that right in those areas governed by the Constitution. An examination of the Supreme Court's most recent decisions in the criminal law arena readily bears witness to this proclivity.
Protecting Trade Secrets And Confidential Information From Media Disclosure: Removing The Reporter's Shield, John M. Tkacik Jr.
Protecting Trade Secrets And Confidential Information From Media Disclosure: Removing The Reporter's Shield, John M. Tkacik Jr.
Cleveland State Law Review
This Note will address the problem facing businesses in Ohio when the laws protecting trade secrets and confidential information come into direct conflict with laws protecting the media. Part II of this Note will discuss the concept and various legal definitions attributed to trade secrets and confidential proprietary information. Parts III and IV will discuss trade secrets, confidential information and the related remedies available to companies, with emphasis on the statutes under Ohio's criminal code. This Note will then focus on the protection afforded the media by both an Ohio shield statute which protects confidential sources, and the U.S. Constitution …
Diminishing Returns: Doing Without A Separate Provision For Implied Warranty Disclaimers Through Dealing, Performance, And Usage, Aremona G. Bennett
Diminishing Returns: Doing Without A Separate Provision For Implied Warranty Disclaimers Through Dealing, Performance, And Usage, Aremona G. Bennett
Cleveland State Law Review
This article calls for the rethinking of subsection 2-316(3)(c), the course of dealing, course of performance, and trade usage disclaimer provision. The statutory formation of Article 2 requires elsewhere that, if applicable, any or all of these three factors must be considered when interpreting an agreement. Enactment of this second, separate provision should have directed courts to a more equable construction of implied warranty disclaimers of dealing, performance, and usage. This provision should have guided practitioners to a more reliable understanding of the requirements of such disclaimers. Not only did this provision do neither, but it also blurred the distinction …