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2003

Cleveland State University

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Full-Text Articles in Law

2003 Scholars And Artists Bibliography, Michael Schwartz Library, Cleveland State University, Friends Of The Michael Schwartz Library Oct 2003

2003 Scholars And Artists Bibliography, Michael Schwartz Library, Cleveland State University, Friends Of The Michael Schwartz Library

Scholars and Artists Bibliographies

This bibliography was created for the annual Friends of the Michael Schwartz Library Scholars and Artists Reception, recognizing scholarly and creative achievements of Cleveland State University faculty, staff and emeriti


Supreme Court Watch, Reginald Oh Oct 2003

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Discusses the Supreme Court cases at the end of the 2002-2003 term.


Does Counterfactual History Have Any Lessons For Law Teachers And Lawyers? Does It Have Any Value For You, In Particular, In Your Area Of Research Or Teaching?, Arthur R. Landever Aug 2003

Does Counterfactual History Have Any Lessons For Law Teachers And Lawyers? Does It Have Any Value For You, In Particular, In Your Area Of Research Or Teaching?, Arthur R. Landever

Law Faculty Presentations and Testimony

A counterfactual is speculating on the consequences if particular events had not happened as they did. For example, suppose the British had won the American Revolutionary War. What would have been the British policy in North America? As law teachers, lawyers, and perhaps policy makers, counterfactual history has much value for us. Its value, however, clearly depends upon the care we take in choosing a plausible counterfactual assertion, the degree of its breadth or, alternatively, its limited nature, and how we make use of the counterfactual.


Supreme Court Watch, Reginald Oh Jul 2003

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Describes the U.S. Supreme Court's 2002-2003 term.


Speech On Early Women Lawyers, Arthur R. Landever Apr 2003

Speech On Early Women Lawyers, Arthur R. Landever

Law Faculty Presentations and Testimony

This lecture discusses many early women lawyers and their accomplishments.


Case Study Of A Justice: "Courageous" Plessy Dissenter John Marshall Harlan And His African-American "Half Brother," Robert James Harlan Of Ohio, Arthur R. Landever Feb 2003

Case Study Of A Justice: "Courageous" Plessy Dissenter John Marshall Harlan And His African-American "Half Brother," Robert James Harlan Of Ohio, Arthur R. Landever

Law Faculty Presentations and Testimony

Justice Harlan had been a slave-owner; he had opposed the Emancipation Proclamation; he had initially opposed the passage of the 13th Amendment and apparently the 14th; as an Associate Justice, he remained a racist, taking pride in being a member of the white race. Nonetheless, he was the most committed civil rights justice until the period of the 1940s or 1950s. What explains his votes and opinions? Can we know? Does it matter whether we know or not?


Bioterrorism Defense: Are State Mandated Compulsory Vaccination Programs An Infringement Upon A Citizen's Constitutional Rights, Brendon Kohrs Jan 2003

Bioterrorism Defense: Are State Mandated Compulsory Vaccination Programs An Infringement Upon A Citizen's Constitutional Rights, Brendon Kohrs

Journal of Law and Health

The agents of anthrax and smallpox threaten the health and welfare of the state citizenry and therefore the state can enact legislation appropriate to offset the possible harm. In order for the enacted legislation to withstand a constitutional challenge, the possible harm has to be a compelling governmental interest of public safety and welfare narrowly tailored to that goal. The purpose of this article is to demonstrate that the United States Department of Health and Human Services has the ability to recommend a compulsory vaccination program for citizens, and this program would not be in violation of a person's ...


Nothing Less Than The Dignity Of Man: Evolving Standards, Botched Executions And Utah's Controversial Use Of The Firing Squad , Christopher Q. Cutler Jan 2003

Nothing Less Than The Dignity Of Man: Evolving Standards, Botched Executions And Utah's Controversial Use Of The Firing Squad , Christopher Q. Cutler

Cleveland State Law Review

While outrage boils to the surface when Utah uses its firing squad option, there is little substantive legal development concerning the firing squad's use. Few cases have challenged the firing squad's constitutionality. This article discusses the legal and political implications of the firing squad. Using the Supreme Court's everdeveloping Eighth Amendment jurisprudence as a guide, this article discusses whether the firing squad, both historically and in its present application, passes constitutional muster. Beyond those factors that trigger constitutional protection, this article discusses those elements of the firing squad's use which define society's humanity and demonstrate ...


Police Discretion And Traffic Enforcement: A Government Of Men, Illya Lichtenberg Jan 2003

Police Discretion And Traffic Enforcement: A Government Of Men, Illya Lichtenberg

Cleveland State Law Review

Police across the nation have long been accused of using the broad discretion afforded to them in traffic enforcement as a pretext for criminal investigation. Despite this widely held belief, there is little evidence to suggest that courts have put forth any effort, or have even considered remedying or reducing the wide spread abuse of police discretion in traffic stops, with the exception of racial profiling. This Article addresses the apparent gap in the legal and social science literature concerning the unequal enforcement of traffic laws. How extensive do the police abuse the discretionary powers they are afforded in enforcing ...


Appellate Jurisdiction In Ohio Over Final Appealable Orders , Gary L. Garrison Jan 2003

Appellate Jurisdiction In Ohio Over Final Appealable Orders , Gary L. Garrison

Cleveland State Law Review

This article focuses on the rules for determining finality and appealability of judgments under section 2505.02 and Ohio R. Civ. P. 54(B). To that end, this article addresses not only the various categories of "final orders" but also the procedural mechanisms by which interlocutory appeals are taken from judgments on one part of a case while the rest of the case remains pending. The objective of this article is two-fold. First and foremost, it provides a resource and guide to appellate practitioners and trial court judges for understanding the "final order rule" and for navigating its various provisions ...


Nursing Home Tort Reform And Ohio House Bill 412: Why Have We Abandoned Our Neglected And Abused Elderly Population, Robin P. Bravchok Jan 2003

Nursing Home Tort Reform And Ohio House Bill 412: Why Have We Abandoned Our Neglected And Abused Elderly Population, Robin P. Bravchok

Cleveland State Law Review

This Note will show that nursing home tort reform statutes, like Ohio's, have totally missed the mark by disregarding our elders' rights and ignoring the problem of abuse and neglect in nursing facilities. Part II of this Note will look at our nation's elderly population and the poor state of our country's nursing homes. Part III will briefly look at Florida's lawsuit reform act that was passed in May of 2001. Florida, with its large elderly population, was plagued by increasing insurance costs allegedly due to rising litigation and damage awards. Its new law, which has ...


2003 Vol. 11 No. 1, Cleveland-Marshall College Of Law Jan 2003

2003 Vol. 11 No. 1, Cleveland-Marshall College Of Law

Law Notes

No abstract provided.


A Healer Or An Executioner - The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin Jan 2003

A Healer Or An Executioner - The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin

Journal of Law and Health

This article argues that despite the benefits of ridding the criminal justice system of some uncertainty and ignorance with respect to mental health issues, the very close involvement of psychiatrists in the criminal justice system as practiced in the United States is not only illogical and bad policy, but also unethical from the viewpoint of medical ethics. Part II of this article will lay the groundwork for the argument by discussing the history of the insanity defense, and of science's involvement with criminal justice; while Part III, will look into the association of science and the administration of justice ...


Death By Any Other Name: The Federal Government's Inconsistent Treatment Of Drugs Used In Lethal Injections And Physician-Assisted Suicide, Colin Miller Jan 2003

Death By Any Other Name: The Federal Government's Inconsistent Treatment Of Drugs Used In Lethal Injections And Physician-Assisted Suicide, Colin Miller

Journal of Law and Health

While the FDA is under no legal obligation to regulate the drugs used in executions, these recent developments certainly create a moral imperative requiring review. This paper will argue that the federal government cannot consistently refrain from regulating lethal injection drugs while arguing for prosecution of those prescribing drugs to be used by patients in assisted suicide. Part II will look at the opinions in Chaney and the factors behind the FDA's decision not to regulate the drugs used in executions. Part III will look at Oregon's Death with Dignity Act and its authorization by the Supreme Court ...


A Tripartite Threat To Medical Records Privacy: Technology, Hipaa's Privacy Rule And The Usa Patriot , Nathan J. Wills Jan 2003

A Tripartite Threat To Medical Records Privacy: Technology, Hipaa's Privacy Rule And The Usa Patriot , Nathan J. Wills

Journal of Law and Health

Proceeding from the proposition that privacy is a fundamental right, this essay notes the importance of maintaining medical records privacy in light of the increased use of technology. It describes the Privacy Rule promulgated under HIPAA, which was intended to strengthen medical records privacy, but notes the restriction of privacy rights following September 11, 2001 ("9/11"). In light of circumscribed privacy rights, the Privacy Rules becomes much more important in protecting medical records privacy. Unfortunately, the Rule falls short of this goal by potentially running afoul of the First and Fourth Amendments. It also fails to provide adequate medical ...


Ohio's Patient-Physician Privilege: Whether Planned Parenthood Is A Protected Party, Melissa O'Neill Jan 2003

Ohio's Patient-Physician Privilege: Whether Planned Parenthood Is A Protected Party, Melissa O'Neill

Journal of Law and Health

This article will suggest that under Ohio's patient-physician privilege, the results of pregnancy tests that are administered at Planned Parenthood clinics will not be considered privileged or confidential information, unless the test is administered by a physician and is later used by a physician in treatment of the woman. In particular, this article will briefly examine the history of a right to medical privacy, the development of the patient-physician privilege and the origin of Planned Parenthood . The notion of very intimate details of a person's health, including diseases, conditions, diagnoses and prognoses being readily available to whoever would ...


Prohibiting Procreation: A Step In The Right Direction To Protect The Children Of Deadbeat Dads; An Analysis Of The Court Decision In State V. Oakley, Andrea C. Kryszak Jan 2003

Prohibiting Procreation: A Step In The Right Direction To Protect The Children Of Deadbeat Dads; An Analysis Of The Court Decision In State V. Oakley, Andrea C. Kryszak

Journal of Law and Health

This note will entail an in-depth analysis of the Wisconsin Supreme Court's majority opinion and the dissent. This note will also provide support for the majority opinion by evaluating how the court's decision will help protect the children of individuals like Oakley, who intentionally refuse to support them. While some may claim that the probation condition to prohibit Oakley from procreating was a drastic measure, it was the appropriate measure for the court to take. This sentence will serve as a deterrent to Oakley and other fathers who intentionally refuse to support their children. The probation condition will ...


Do Not Resuscitate Decision-Making: Ohio's Do Not Resuscitate Law Should Be Amended To Include A Mature Minor's Right To Initiate A Dnr Order, Allison Mantz Jan 2003

Do Not Resuscitate Decision-Making: Ohio's Do Not Resuscitate Law Should Be Amended To Include A Mature Minor's Right To Initiate A Dnr Order, Allison Mantz

Journal of Law and Health

Part One discusses Ohio's current DNR (Do Not Resuscitate) law, which does not include an exception for mature minors. It explains the medical difference between initiating a valid DNR order and refusing life-sustaining medical treatment. However, the note solely focuses on DNR and how it relates to a minor's right to initiate his or her own DNR order in light of parental disagreement. Part two explains the evolution of the minor and healthcare. Specifically, the progression from the early common law assumption that minors lack the capacity to consent, to the present, in which minors are permitted to ...


To Preempt Or Not To Preempt: Hmo Liability Pre And Post Pegram V. Herdrich , Adam D. Glassman Jan 2003

To Preempt Or Not To Preempt: Hmo Liability Pre And Post Pegram V. Herdrich , Adam D. Glassman

Journal of Law and Health

Should consumers have the right to sue their HMOs (health maintenance organizations) for the way they deliver medical care? In recent years, the federal courts have focused their attention upon, inter alia, the issue of whether HMOs have a duty to reveal financial incentive provisions contained in contracts between the HMO plan physicians to plan members and beneficiaries under a health plan. In fact, on June 12, 2000, the United States Supreme Court, in Pegram v. Herdrich, pondered whether HMO physicians and administrators are fiduciaries under the Employee Retirement Income Security Act (ERISA), and if so, must they exercise their ...


How Mfn Clauses Used In The Health Care Industry Unreasonably Restrain Trade Under The Sherman Act, Beth Ann Wright Jan 2003

How Mfn Clauses Used In The Health Care Industry Unreasonably Restrain Trade Under The Sherman Act, Beth Ann Wright

Journal of Law and Health

When used in the health care industry, an MFN clause is a contractual agreement that guarantees a health insurer the same best price as their market competitors. MFN clauses have the effect of unnecessarily raising consumer costs, reducing choice among providers, constraining access to care and preventing the development of alternative health care delivery models. The purpose of this paper is four-fold. First, to design a four-quadrant matrix to evaluate the pro-competitive and anticompetitive purpose and effects of MFN clauses under Section 1 of the Sherman Act. Second, to defeat the jurisprudential presumption that MFN clauses are pro-competitive in the ...


True Risk Management: Physicians' Liability Risk And The Practice Of Patient-Centered Medicine, Anand Das, Jack Schwartz, Evan G. Derenzo Jan 2003

True Risk Management: Physicians' Liability Risk And The Practice Of Patient-Centered Medicine, Anand Das, Jack Schwartz, Evan G. Derenzo

Journal of Law and Health

While most physicians understand that a serious deficiency in technical care increases their risk of liability, too often their risk management behavior indicates that they do not fully appreciate the impact that poor interpersonal skills have on patients' motivations to sue. Ironically, many of these physicians have taken risk management steps that have increased, rather than reduced, their exposure to lawsuits. In this paper, we argue that a strong legal and factual claim does not invariably explain patients' decisions to sue. Dissatisfaction with the physician's interpersonal care as well as with the clinical outcome is often a factor. Conversely ...


Best Methods For Increasing Medical Translators For Limited English Proficient Patients: The Carrot Or The Stick?, Paula Hein Jan 2003

Best Methods For Increasing Medical Translators For Limited English Proficient Patients: The Carrot Or The Stick?, Paula Hein

Journal of Law and Health

Private physicians struggle to provide translators for patients, especially in rural areas like the one in which Dr. Kerr practices. Translators cost anywhere from thirty dollars to four hundred dollars depending on such factors as the time needed to translate, whether or not the translator is trained as a medical translator, and the language that is being translated. Telephone language lines, which provide translation over the phone through a dial up service, costs providers an average of two dollars and fifty cents ($2.50) per minute. There is also the price of the extra personnel time that is required to ...


Electronic Signatures In E-Healthcare: The Need For A Federal Standard, Ashoke S. Talukdar Jan 2003

Electronic Signatures In E-Healthcare: The Need For A Federal Standard, Ashoke S. Talukdar

Journal of Law and Health

Healthcare, like many industries, is fast embracing the benefits of modern information technology ("IT"). The wide range of available publications on the use of IT in healthcare indicates that IT provides the promise of faster and more comprehensive information about all aspects of the healthcare delivery process, to all classes of its consumers - patients, doctors, nurses, insurance adjudicators, health inspectors, epidemiologists, and biostatisticians. But the drive towards electronic information in health care is not rooted merely in efficiency; more recently, significant emphasis has been placed on patient safety issues raised by the Institute of Medicine's ("IOM") year 2001 quality ...


The Latex Allergy Crisis: Proposing A Healthy Solution To The Dilemma Facing The Medical Community, Lynn Cherne-Breckner Jan 2003

The Latex Allergy Crisis: Proposing A Healthy Solution To The Dilemma Facing The Medical Community, Lynn Cherne-Breckner

Journal of Law and Health

The explosion in the number and severity of latex allergies began with the emergence of the AIDS epidemic as the Centers for Disease Control issued universal precautions advising health care workers to use protective barriers to prevent the spread of the infection. This resulted in constant use of the gloves by medical workers and a great increase in demand for cost effective gloves. Essentially, the quality of the glove making process decreased, increasing the amount of allergy inducing proteins excreted to wearers. Afflicted workers include physicians, nurses, dentists, dental hygienists, operating room personnel, laboratory technicians and ambulance attendants among others ...


What Successful Companies Know That Law Firms Need To Know: The Importance Of Employee Motivation And Job Satisfaction To Increased Productivity And Stronger Client Relationships, Theresa M. Neff Jan 2003

What Successful Companies Know That Law Firms Need To Know: The Importance Of Employee Motivation And Job Satisfaction To Increased Productivity And Stronger Client Relationships, Theresa M. Neff

Journal of Law and Health

This note examines the importance of employee motivation and job satisfaction to increased productivity and stronger client relationships with law firms. In Part I, I discuss how the pressure of the legal profession can affect lawyers' relationships with their staff members. My analysis will center on recent studies on lawyer job satisfaction, the impact of stress on lawyers, and the public's perception of lawyers. In Part II, I discuss the law firm as a "service" organization and the implications of that orientation. In this section, I also emphasize the importance of building and maintaining relationships with clients and how ...


Disarming The Confirmation Process, Michael M. Gallagher Jan 2003

Disarming The Confirmation Process, Michael M. Gallagher

Cleveland State Law Review

To improve the current process and eliminate the bitter nature of confirmation hearings, Senators should not consider a nominee's ideology in determining whether to vote for that nominee. Ideological scrutiny lacks historical and constitutional support; it has led to repeated, prolonged battles that threaten to draw the confirmation process into a dangerous stalemate. Removing ideology from judicial nominations would return the confirmation process to its original understanding, one in which the President enjoys the dominant role. Those who argue that allowing the President, not the Senate, to consider a nominee's ideology would harm the federal judiciary and ignore ...


How Can They Keep Calling Me - Exemptions And Loopholes In The Telephone Consumer Protection Act And The Need For Further Regulation , Brian W. Stano Jan 2003

How Can They Keep Calling Me - Exemptions And Loopholes In The Telephone Consumer Protection Act And The Need For Further Regulation , Brian W. Stano

Cleveland State Law Review

The first section of this Note examines the relevant federal laws that are already in place to assist the frustrated public in avoiding these unwanted calls. The second section discusses the constitutionality of such legislation and why it is considered to improperly limit the freedom of commercial speech. The third section focuses upon what the states have done to supplement the federal law and increase regulation as well as the proposed changes in the federal law itself. The fourth section analyzes the ineffectiveness of the federal and state regulations in place and specifically argues against the allowance of exceptions in ...


The Classified Information Protection Act: Killing The Messenger Or Killing The Message, Mitchell J. Michalec Jan 2003

The Classified Information Protection Act: Killing The Messenger Or Killing The Message, Mitchell J. Michalec

Cleveland State Law Review

The purpose of this Note is to discuss the adequacy of existing statutory and administrative protections for classified information, examine how the agencies responsible for protecting this information implemented controls, and how the courts interpreted these existing protections. This Note argues that the failure of the government to prevent "leaks" is not necessarily a failure of the existing scheme, but rather a failure of the government to apply current controls. Furthermore, it demonstrates that the Classified Information Protection Act is an unnecessary, overbroad, and in some cases, ineffective alternative to the existing protections, with a great potential for abuse. If ...


Cutting Through The Confusion Of The Loss-Of-Chance Doctrine Under Ohio Law: A New Cause Of Action Or A New Standard Of Causation, George J. Zilich Jan 2003

Cutting Through The Confusion Of The Loss-Of-Chance Doctrine Under Ohio Law: A New Cause Of Action Or A New Standard Of Causation, George J. Zilich

Cleveland State Law Review

The central argument advanced in this Note is that a loss of chance should be recognized as an independent injury. This approach best serves the policy of the new loss of chance doctrine, and it avoids the very significant doctrinal problems that arise if the alternative approach is taken, which is to treat the compensability of lost chances as merely a relaxation of traditional tort law causation requirements. The primary focus of this Note is on the loss of a less-than-even chance of recovery or survival, wherein a victim will be entitled to damages resulting from the negligent reduction of ...


I Didn't Take The Road Less Traveled, And What A Long, Strange Trip It's Been, Brian A. Glassman Jan 2003

I Didn't Take The Road Less Traveled, And What A Long, Strange Trip It's Been, Brian A. Glassman

Law Faculty Articles and Essays

The author describes his career path and the ways he has sought to combine his interests in law and art. The article concludes with ten survival tips to help others on their career journeys.