Law Commons^™

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D.A. Jeremy Telman

Cleveland State Law Review

This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.

Chisholm, the pre-Marshall Court’s most important constitutional decision, illustrates …

Notice, Due Process, And Voter Registration Purges, Anthony J. Gaughan

Cleveland State Law Review

In the 2018 case of Husted v. A. Philip Randolph Institute, a divided United States Supreme Court upheld the procedures that Ohio election authorities used to purge ineligible voters from the state’s registration lists. In a 5-4 ruling, the majority ruled that the Ohio law complied with the National Voter Registration Act of 1993 (NVRA) as amended by the Help America Vote Act of 2002 (HAVA). This Article contends that the controlling federal law—the NVRA and HAVA—gave the Supreme Court little choice but to decide the case in favor of Ohio’s secretary of state. But this article also argues …

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

Punishment Without Purpose: The Retributive And Utilitarian Failures Of The Child Pornography Non-Production Sentencing Guidelines, Brittany Lowe

Cleveland State Law Review

Pursuant to the Sentencing Reform Act of 1984, Congress established the U.S. Sentencing Commission to formulate an empirical set of federal sentencing Guidelines. With the U.S. Sentencing Guidelines, Congress intended to further the basic purposes of criminal punishment—deterrence, incapacitation, just punishment, and rehabilitation. Nevertheless, the Guidelines were instantaneously met with disapproval. Asserting that the mandatory Guidelines violated the Constitution, scholars and judges argued that the Commission usurped Congress’s role by prescribing punishments that were essentially binding law. In 2005, the Supreme Court held that the Guidelines were discretionary in United States v. Booker.

While this decision resolved many of …

The Replacements: Conflicting Standards For Obtaining New Counsel Under The Sixth Amendment, Sharon Finegan

Cleveland State Law Review

In 2006, the Supreme Court handed down a decision in United States v. Gonzalez-Lopez emphasizing the importance of a defendant’s right to counsel of choice under the Sixth Amendment and holding a denial of this right constitutes structural error, requiring automatic reversal. Following that decision, several federal circuit courts and state appellate courts have questioned how to apply this right to circumstances where the right to choice of counsel and the right to appointed counsel overlap. When a defendant seeks to replace retained counsel for appointed counsel, should the standard governing his motion fall under the right to choice of …

Mr. Justice Holmes's Constitutionally Crooked Path Part Ii: The State Sovereignty Jurisdictional Stopgap , Mitchell B. Weiss

Cleveland State Law Review

This article analyzes the last turn in Justice Holmes's constitutionally crooked path, largely by penetrating to the very core of the Supreme Court's recent decision in Alden v. Maine. Part I therefore traces the Court's waffling attitude towards the division of regulatory power between the state and federal governments. Then, against this backdrop, Part II takes the jurisdictional turn by analyzing the Court's most recent attempt to resuscitate the Tenth Amendment's check on Congress's Commerce Power. To sharpen the focus, much of this article will focus on the Fair Labor Standards Act, a federal statute that always seems to sit …

The Clean Air Act Amendments Of 1990 And An Unbridled Spending Power: Will They Survive On The Supreme Court's Road To Substantive Federalism, Mark A. Miller

Cleveland State Law Review

The question remains as to how far the Supreme Court will go in its refortification of the Tenth Amendment. This Note explores emerging federalism trends and evaluates the CAA in light of a stronger state sovereignty that is appearing on the constitutional horizon. Parts II and III examine the CAAA and the constitutional problems engendered by the Act. Part IV examines current Tenth Amendment and Spending Clause jurisprudence, and illustrates that the CAAA is a classic example of how Congress has been able to circumvent the Tenth Amendment with its Spending power. Part V presents a new view of federalism …

The Admissibility Of Medical Testimony In Ohio: Daubert, Joiner And Ohio's Relevance-Reliability Standard, Gerald J. Todaro

Cleveland State Law Review

This article specifically examines the reliability standard imposed under Rule 702 of the Ohio Rules of Evidence and its application to medical expert testimony in Ohio. Section II reviews Daubert, its progeny, and Ohio law. This analysis reveals tension between Ohio's flexible relevance/reliability standard and the more exacting demands of Daubert. Section III examines the scientific basis of clinical diagnosis and treatment of illness and disease. This section argues that judges should take judicial notice of the conventional methodology underlying the clinical practice of medicine, and thus the preliminary question of reliability of medical expert testimony should rarely require a …

Noam Chomsky And Judicial Review, James G. Wilson

Cleveland State Law Review

This Commentary will consider four authorities who are hardly considered standard-bearers of the Left: Aristotle, Edmund Burke, James Madison, and Justice Oliver Wendell Holmes. Insights from Aristotle, Burke, Madison, Holmes, and Chomsky will be combined into following set of propositions: (1) the Supreme Court has a constitutional and historical obligation to resist tyranny and other forms of constitutional perversion and factionalism; (2) the Supreme Court has a unique duty and capacity to combat abuses of private power; (3) private corporations and the well-to-do have gained so much power that they have become a dangerous faction that is turning our government …

The First Amendment: When The Government Must Make Content-Based Choices, Erwin Chemerinsky

Cleveland State Law Review

Thus, I focus my attention on the problem of the First Amendment when the government must make content-based choices. I want to divide my remarks into four parts. I begin by reviewing the traditional bedrock rule of the First Amendment: The government cannot regulate speech based on its content. Second, I identify a broad range of cases where this rule cannot apply because the government must make content-based choices. Third, I suggest that the usual First Amendment principles are not helpful in analyzing these cases. Finally, I offer some initial thoughts about directions for dealing with this problem.

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.

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.

The Future Of Minority Set-Aside Programs After City Of Richmond, Judy Kerczewski Kranjc

Cleveland State Law Review

One type of controversial affirmative action plan is the minority set-aside program. This Note will focus on the future of these plans in the wake of the recent Supreme Court decision, City of Richmond v. J.A. Croson Co. First, an examination of the background of affirmative action leading up to set-asides is in order. Second, this Note will analyze City of Richmond and the constitutional and social issues at stake, balancing whether minority set-asides are needed with the recognition that discrimination and lack of economic opportunity for minorities still exists in our society. Finally, the Note will examine several lower …

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …

Two Cheers For The Supreme Court, Paul A. Freund

Cleveland State Law Review

Text of speech given by Prof. Freund on the occasion of the presentation of the 1969 SCRIBES award for the best book written for laymen as well as lawyers, Law and Justice (Harvard University Press, 1968).