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Articles 1 - 30 of 197
Full-Text Articles in State and Local Government Law
The Anti-Constitutionality Of The Deeply Rooted Test In Dobbs V. Jackson, Reginald Oh
The Anti-Constitutionality Of The Deeply Rooted Test In Dobbs V. Jackson, Reginald Oh
Cleveland State Law Review
The deeply rooted in history test used by Justice Alito in Dobbs v. Jackson to overturn Roe v. Wade is anti-constitutional. In Dobbs, Alito concluded that, because a majority of states in 1868 criminalized abortion, abortion is not deeply rooted in history, and is therefore not a fundamental liberty under the Fourteenth Amendment Due Process Clause. However, relying on state laws in 1868 to interpret constitutional text not only has no basis in the Constitution, it goes against the fundamental nature of the Constitution as an integrated whole. What I call the Integrated Constitution is based on Chief Justice John …
R.E.S.P.E.C.T.: The Court's Forgotten Virtue, Camille Pollutro
R.E.S.P.E.C.T.: The Court's Forgotten Virtue, Camille Pollutro
Cleveland State Law Review
This Article recommends a shift in constitutional interpretation that requires the existence of respect for the class at issue when a fundamental right is being considered under the narrow, historical deeply rooted test of the Fourteenth Amendment. By focusing on Dobbs v. Jackson Women’s Health Organization, this Article highlights that the class at issue—women—are having their fundamental rights decided for them by the legal sources of 1868. In applying this strict and narrow historical deeply rooted test, the Court fails to consider the lack of respect and autonomy that women had in 1868. To the Court, if twenty-eight out …
Unstable Homes Exacerbated By Unstable Courts: How Ohio's Split-Child-Custody Jurisdiction Harms Ohio's Children And Families, Philip Shipman
Unstable Homes Exacerbated By Unstable Courts: How Ohio's Split-Child-Custody Jurisdiction Harms Ohio's Children And Families, Philip Shipman
Et Cetera
Raising a child is very difficult. Add to the difficulty in raising a child the specter of a child custody suit, and you have a recipe that can end in disaster.
In Ohio, child custody is not fair. It is not just. It is determined by judges, whose jurisdiction is determined by whether the child’s parents were married to each other. Under this jurisdictional scheme, Ohio’s children are failed. This failure stems from Ohio courts making their own rules without care to fairness and equality. Within most of Ohio’s eighty-eight counties, juvenile and domestic relations courts can, and do, set …
Transcript: The Future Of Ivf Post Dobbs, Rebecca Feinberg
Transcript: The Future Of Ivf Post Dobbs, Rebecca Feinberg
Journal of Law and Health
The following is a transcription from The Healthcare and Privacy Law Consequences Following Dobbs presented at Cleveland State University College of Law by The Journal of Law & Health on February 17, 2023. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.
Taking The Gavel Away From The Executive Branch: The Indeterminate Sentencing Scheme Under S.B. 201 Is Ripe For Review And Unconstitutional, Jessica Crtalic
Taking The Gavel Away From The Executive Branch: The Indeterminate Sentencing Scheme Under S.B. 201 Is Ripe For Review And Unconstitutional, Jessica Crtalic
Cleveland State Law Review
In 2019, Senate Bill 201, also known as the Reagan Tokes Act, reintroduced an indeterminate sentencing scheme in Ohio whereby sentences are assigned in the form of a range. Under this sentencing scheme, the Ohio Department of Rehabilitation and Correction, through the parole board, has discretion to retain an inmate past the presumptive release date. This fails to afford the accused their guaranteed right to a jury trial, improperly places judiciary power in the hands of the executive branch, and scrutinizes the violation of due process such that the defendant is being denied a fair hearing and notice. Not only …
A Call For The Legalization Of Two Sustainable Means Of Final Disposition In Ohio, Aimee Sheetz
A Call For The Legalization Of Two Sustainable Means Of Final Disposition In Ohio, Aimee Sheetz
Cleveland State Law Review
Several states currently have laws that allow for alkaline hydrolysis as an alternative to burial or cremation. A few states also allow for the composting of human remains. People are choosing these means of disposition for themselves and their loved ones due to environmental, financial, and societal reasons. Ohio currently does not allow either of these methods to be performed within the state. There have been attempts to legalize alkaline hydrolysis in Ohio. This Note calls for the legalization of both methods of disposition by including them in the Ohio Revised Code. This would provide clarity to the Ohio Board …
Bans On Bags Or Bans On Bans?: A Home Rule Analysis Of Recent Attempts In Ohio To Enact Legislation Eliminating Plastic Bags From Stores, Christine Mika, Karin Mika
Bans On Bags Or Bans On Bans?: A Home Rule Analysis Of Recent Attempts In Ohio To Enact Legislation Eliminating Plastic Bags From Stores, Christine Mika, Karin Mika
Cleveland State Law Review
This Article addresses how Ohio’s Home Rule provision in the Ohio Constitution has played out as legislators grapple with efforts to ban plastic bags from stores. It discusses the complexities of the Home Rule doctrine in Ohio, especially as it relates to the competing authority of state, county, and municipal governments. The Article discusses the history of Home Rule in Ohio, and the pre-emptive relationships between the competing governmental entities stemming from the existence of County and Municipal Charters that also grant legislative powers. It explains that the opting out of plastic bag bans by Ohio municipalities is a valid …
Concealing More Than Your Affairs: A Deep Dive Into The World Of Cryptocurrency And Its Future Influence On Family Law In Ohio, Milica Prica
Concealing More Than Your Affairs: A Deep Dive Into The World Of Cryptocurrency And Its Future Influence On Family Law In Ohio, Milica Prica
Cleveland State Law Review
This Note dives into the world of cryptocurrency and family law in Ohio. With its current popularity and dramatic fluctuations, cryptocurrency has created a new legal issue in the family law practice. Specifically, this Note focuses on the concealability of Bitcoin and how that influences division of property, spousal support, and child support in Ohio divorce proceedings and settlements. To tackle this issue, this Note begins with the history of Bitcoin, its value since the beginning, as well as the reason for its fluctuations. This Note also looks into what makes Bitcoin and other cryptocurrency forms so concealable. This Note …
O-High-O: A Policy Note On Ohio's Current Push For Recreational Marijuana Legislation And How Other States Have Created Successful Recreational Marijuana Laws, Alexander M. Stewart
O-High-O: A Policy Note On Ohio's Current Push For Recreational Marijuana Legislation And How Other States Have Created Successful Recreational Marijuana Laws, Alexander M. Stewart
Et Cetera
Many states have gone on to pass comprehensive recreational marijuana laws that have greatly benefitted their economy, public health, and criminal justice system. Ohio currently allows for the use of marijuana for medicinal purposes, and there has been past attempts to enact legislation that would legalize the recreational use of marijuana, but the past proposals failed to gain the widespread support required to become law. This Note seeks to analyze and understand other states’ legislation in an attempt to understand what successful recreational marijuana legislation looks like. This Note concludes with a comprehensive proposal that contains all the essential elements …
Playing Monopoly With The Neighborhood: Impact Of Series Limited Liability Companies On Nuisance Abatement Actions And Housing Code Enforcement, Lauren Williams
Playing Monopoly With The Neighborhood: Impact Of Series Limited Liability Companies On Nuisance Abatement Actions And Housing Code Enforcement, Lauren Williams
Cleveland State Law Review
The City of Cleveland has been one of the most active cities in combating the negative effects of the 2008 financial crisis, utilizing nuisance abatement actions in combination with municipal programs aimed at assisting homeowners and renters. However, the Ohio Revised Limited Liability Company Act ("ORLLCA"), passed in 2021, may reverse the progress made in cities like Cleveland by enabling real estate investors to conceal assets in several series under the same limited liability company, resulting in rising vacancy rates and unstable communities. This will negatively impact the effectiveness of nuisance abatement actions and traditional housing code enforcement in curbing …
Due Process Junior: Competent (Enough) For The Court, Tigan Woolson
Due Process Junior: Competent (Enough) For The Court, Tigan Woolson
Journal of Law and Health
There are many reports presenting expert policy recommendations, and a substantial volume of research supporting them, that detail what should shape and guide statutes for juvenile competency to stand trial. Ohio has adopted provisions consistent with some of these recommendations, which is better protection than relying on case law and the adult statutes, as some states have done. However, the Ohio statute should be considered a work in progress.
Since appeals courts are unlikely to provide meaningful review for the substance of a juvenile competency determination, the need for procedures for ensuring that the determination is initially made in a …
Overdose: The Public Health Policies That Caused The Opioid Crisis, Benjamin T. Suslavich
Overdose: The Public Health Policies That Caused The Opioid Crisis, Benjamin T. Suslavich
Cleveland State Law Review
Recently, local governments have successfully sued pharmaceutical manufacturers for damages related to the opioid crisis in the United States under the theory that these pharmaceuticals were responsible for causing addictions and deaths across the nation. However, the opioid crisis was, in fact, caused by the creation of national public health policies which compelled the prescription of opioid analgesics. The dogma of the "pain movement," which spearheaded public health policies, was adopted in some form by nearly every healthcare regulator in the country. With unchecked power and influence on the U.S. healthcare system, healthcare regulators mutated slightly misleading advertising by pharmaceutical …
Rolling The Dice On The Legality Of Gambling Devices: Why "Purpose" Has A Purpose, Stevie Holbrook
Rolling The Dice On The Legality Of Gambling Devices: Why "Purpose" Has A Purpose, Stevie Holbrook
Cleveland State Law Review
Section 1955 of the United States Code (“Section 1955”), the federal law detailing prohibition on illegal gambling businesses, renders a defendant susceptible to prosecution if they are found to have violated the respective state’s gambling law and have a certain amount of people involved for a certain length of time. Today, the Sixth Circuit has identified Section 1955 as a general intent statute where it need not be shown that a defendant acted willfully in terms of intentionally violating state law. However, Ohio’s state gambling law has been interpreted as a specific intent statute that requires a purposeful act and, …
Late To The Crowd: How Ohio's Crowdfunding Bill Fails To Achieve Inclusiveness And Efficiency, Nathan E. Hill
Late To The Crowd: How Ohio's Crowdfunding Bill Fails To Achieve Inclusiveness And Efficiency, Nathan E. Hill
Cleveland State Law Review
Almost half of all small and medium sized businesses within the United States fail within the first five years. One of the main contributing factors to that failure is the inability to raise enough money to operate. While there are many ways for businesses to raise operating capital, the most accessible and sometimes the most efficient way is through a process called equity-based crowdfunding—the offering of shares in exchange for an investment raised through an online portal. In 2012, after seeing the success of equity-based crowdfunding in other countries, the United States passed the Jumpstart Our Business Startups Act (JOBS …
Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski
Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski
Cleveland State Law Review
In Ohio, it is a criminal offense to engage in sexual conduct with another when his or her ability to consent is “substantially impaired” because of a mental or physical condition. There is no mechanism for persons with intellectual and/or developmental disabilities to receive judicial notice of whether their ability to consent is “substantially impaired” prior to criminal adjudication, nor is there a way for them to affirmatively prove that they have the capacity to consent to sexual activity. Thus, under Ohio law, intellectually and/or developmentally disabled individuals may be functionally and irrevocably barred from engaging in sexual intimacy for …
Innocent Until Proven Arrested: How Pretrial Juvenile Detention For Nonviolent Offenders In Ohio Inflicts Constitutional Violations, Taryn Schoenfeld
Innocent Until Proven Arrested: How Pretrial Juvenile Detention For Nonviolent Offenders In Ohio Inflicts Constitutional Violations, Taryn Schoenfeld
Et Cetera
When a juvenile is accused of committing a crime in Ohio, juvenile court judges must determine whether to detain the child pretrial in a juvenile jail or permit the child to go home to await trial. Whereas alleged adult offenders have the right to pay a monetary bond to be released from jail pretrial, juveniles have no such right. Thus, once a judge makes the decision to detain a juvenile pretrial—prior to being adjudicated delinquent of any crime—it is difficult for that decision to be undone. While incarcerated, juveniles suffer irreversible psychological, emotional, mental, and social harms, despite juvenile courts …
How The Conviction And Sentencing Of "Tiger Mandingo" Modernized Missouri's Hiv-Related Statutes In 2021, Ryan Jay Mcelhose
How The Conviction And Sentencing Of "Tiger Mandingo" Modernized Missouri's Hiv-Related Statutes In 2021, Ryan Jay Mcelhose
Journal of Law and Health
Michael Johnson or “Tiger Mandingo” as he referred to himself on social media, engaged in sexual acts with six different men, all of whom claimed that Michael lied about living with human immunodeficiency virus (HIV). As a result, the State of Missouri charged him with recklessly infecting a partner with HIV exposing or attempting to expose another with HIV. With contradictory trial testimony, no genetic fingerprint testing, and little to no questioning of his sexual partners’ credibility, the jury found Michael Johnson guilty of five felony counts which resulted in a 30-year prison sentence. Ultimately the Missouri Court of Appeals …
Systematic Racism, Abortion And Bias In Medicine: All Threads Woven In The Cloth Of Racial Disparity For Mothers And Infants, Gabrielle Ploplis
Systematic Racism, Abortion And Bias In Medicine: All Threads Woven In The Cloth Of Racial Disparity For Mothers And Infants, Gabrielle Ploplis
Journal of Law and Health
This note argues that decisions like that of NAACP v. Wilmington Medical Center, Inc. have been one of many contributing factors in the disparity in mortality rates of both black and American Indian/Alaska Native newborns in comparison to white newborns across the country. Part II examines the current state of the law regarding issues of discrimination, accessibility of health care, and relocation and closure of medical centers that has disproportionately affect minorities in the U.S. Part III discusses the statistics of white, black, and American Indian/Alaska Native newborn and maternal mortality rates in the United States. Part IV addresses the …
Inconsistency At The Pole: Exotic Dancer's Employment Status Should Be Uniform Throughout The U.S., T.J.D. Nadas
Inconsistency At The Pole: Exotic Dancer's Employment Status Should Be Uniform Throughout The U.S., T.J.D. Nadas
Journal of Law and Health
As states start to recognize exotic dancers as employees under Fair Labor Standards Act (FLSA), states that have not yet classified exotic dancers as employees have put club owners in danger of costly litigation for violating the FLSA. Thus, this Note is designed to act as a road map for club owners and state legislators to recognize exotic dancers as employees in compliance with the FLSA and provide insight into how to avoid litigation. This Note analyzes this issue in four parts; Part IV, the analysis, is split into four substantial sections. Part I gives a short summary of the …
Ending The Economic War Among States, Nathan Altstadt
Ending The Economic War Among States, Nathan Altstadt
Cleveland State Law Review
The United States is under siege; however, the cause is not a foreign adversary. Rather, infighting among states to attract and retain big businesses is jeopardizing the Nation’s economic prosperity.
States compete for businesses, using tax incentives, hoping to capitalize on the benefits these businesses represent. Benefits include improved job growth numbers, a future increase in tax revenue, or, simply, elevated political clout. While competition can lead to a more efficient use of resources, unregulated competition between states for businesses does not illustrate this theory. A national auction for a business, where states are blind to rival offers, may, and …
Reforming State Electoral College Laws To Depolarize American Politics, M. Akram Faizer
Reforming State Electoral College Laws To Depolarize American Politics, M. Akram Faizer
Cleveland State Law Review
Brnovich v. Democratic National Committee involved the Supreme Court gutting the remaining vestiges of the Voting Rights Act (VRA), such that jurisdictions will have free rein to impose partisan burdens on franchise rights that have a disproportionate negative effect on racial minority voters who, based on racial political polarization, prefer Democratic Party candidates over their Republican opponents. Brnovich follows the highly divisive 2020 presidential election that Joe Biden won against former President Trump based on very narrow margins in highly contested swing states, notwithstanding a nationwide popular margin of more than 8 million votes. This blurring of the lines between …
A Constitutional Theory Of Territoriality: The Case Of Puerto Rico, Joel Colón-Ríos, Yaniv Roznai
A Constitutional Theory Of Territoriality: The Case Of Puerto Rico, Joel Colón-Ríos, Yaniv Roznai
Cleveland State Law Review
This Article offers an analysis of the relationship between Puerto Rico and the United States that, unlike most of the existing literature, goes beyond discussions of the jurisprudence of U.S. courts and avoids providing merely descriptive or justificatory accounts. Using the tools of constitutional theory, we seek to describe the nature of what we call the “basic structure of territoriality,” the way that structure reproduces itself, and the possibility of its replacement. The basic structure of territoriality, we argue, is comprised by ten fundamental legal rules and five principles. Although those principles are not legally enforceable, they inform in important …
On The Constitutionality Of Hard State Border Closures In Response To The Covid-19 Pandemic, Benjamen Franklen Gussen
On The Constitutionality Of Hard State Border Closures In Response To The Covid-19 Pandemic, Benjamen Franklen Gussen
Journal of Law and Health
I investigate the constitutionality of hard state border closures in the United States as a prophylactic response to a pandemic. This type of border closure prevents people from entering a State, except for exempt travelers, a category that includes, for example, military, judicial and government officers, and people granted entry on compassionate grounds. Those allowed to enter usually have to then go through a quarantine regime before being released into the community. During the COVID-19 pandemic, no State has attempted such closures. However, epidemiological experts suggest that, in comparison to other border and non-border measures, such closures are more effective. …
"Defunding" The Criminality Of Mental Illness By Funding Specialized Police Training: How Additional Training And Resources For Dealing With Mental Health Will Be Beneficial For All Sides, Margaret Ahern
Journal of Law and Health
The momentous public outcry for police reform is the result of police encounters ending fatally, which is notably sixteen times more likely for individuals suffering from mental illness in the United States. These horrific incidents highlight the systemic failings of traditional police departments training and its failure to provide officers with the necessary skills to de-escalate crisis situations involving the vastly overrepresented mentally ill population involved in the United States justice system. This article demonstrates that effective police training involving crisis intervention and de-escalation techniques equip police officers with knowledge and skills that enable them to contrive more positive outcomes …
A Trip Through Employment Law: Protecting Therapeutic Psilocybin Users In The Workplace, Benjamin Sheppard
A Trip Through Employment Law: Protecting Therapeutic Psilocybin Users In The Workplace, Benjamin Sheppard
Journal of Law and Health
In 2020, Oregon voters legalized therapeutic psilocybin in response to a plethora of scientific studies showing symptom reduction for depression, anxiety, substance use disorders, opioid addictions, migraines, other mental illnesses, HIV/AIDS, and cancer. The legal rethinking regarding therapeutic psilocybin continues in both state legislatures and city councils. Yet, despite state and local legalization or decriminalization of therapeutic psilocybin it remains illegal under the federal Controlled Substances Act. This tension between local and federal law places therapeutic psilocybin users and their employers in a difficult position. Because all types of psilocybin use remain illegal under federal law, a zero-tolerance drug use …
Disqualifying Qualified Immunity, Nicholas Mcgill Hudnell
Disqualifying Qualified Immunity, Nicholas Mcgill Hudnell
Et Cetera
The relationship between municipal responsibility and municipal liability in civil suits concerning local police officer misconduct is flawed. Cities have almost unlimited control over their police departments but lack almost any control over the civil litigation of their officers, aside from city attorneys representing them. In police misconduct cases, city attorneys representing police officers are required to invoke any available affirmative defenses, either common law or statutory, regardless of the moral convictions of the city attorneys, city legislators, or local citizens. To bridge the logical gap between municipal responsibility and the lack of municipal control over police misconduct litigation, this …
Capital Punishment Of Young Adults In Light Of Evolving Standards Of Science And Decency: Why Ohio Should Raise The Minimum Age For Death Penalty Eligibility To Twenty-Five (25), Talia Stewart
Cleveland State Law Review
Up until the Supreme Court’s 2005 ruling in Roper v. Simmons, juveniles could constitutionally be executed for qualifying criminal offenses. The Roper Court raised the minimum age for execution to eighteen, citing both a national consensus against executing minors, as well as recent research (at the time) showing that juveniles are more vulnerable to negative influences and outside pressures. Since Roper, the Supreme Court has remained silent regarding the requisite minimum age for execution and has left the decision up to individual states. While a slim majority of states have now abolished the death penalty in its entirety, …
Changing The Rule That Changes Nothing: Protecting Evicted Tenants By Amending Cleveland Housing Court Rule 6.13, James J. Scherer
Changing The Rule That Changes Nothing: Protecting Evicted Tenants By Amending Cleveland Housing Court Rule 6.13, James J. Scherer
Cleveland State Law Review
Renting is on the rise, with all households seeing an increase in the prevalence of renting a home versus owning one from 2006 to 2016. As rental rates rise, so too do the rates of eviction. The detrimental effects of eviction are numerous and can be self-reinforcing, with a single eviction decreasing one’s chances of securing decent and affordable housing, escaping disadvantaged neighborhoods, and benefiting from affordable housing programs. All this was before the coronavirus pandemic that devastated jobs and savings accounts across the nation.
One of the biggest impacts that eviction has on renters is a public court record. …
The Qualified Immunity Paradox And The Sixth Circuit’S Moderwell Opinion: A Harbinger Of Better Things To Come?, Doron M. Kalir
The Qualified Immunity Paradox And The Sixth Circuit’S Moderwell Opinion: A Harbinger Of Better Things To Come?, Doron M. Kalir
Law Faculty Articles and Essays
This note discusses the requirement of "clearly-established law," which a plaintiff needs to show in order to overcome a qualified immunity defense. This requirement--in essence, asking a plaintiff to show that someone else in their shoes has already prevailed in similar circumstances--may lead to an infinite regression paradox. The Note discusses this paradox and the ways in which the Supreme Court, and now the Sixth Circuit, have begun to resolve it.
Ohio's Love-Hate Relationship With Marital Agreements: Why Ohio Should Lift Its Prohibition On Postnuptial Agreements, Natasha Wasil
Ohio's Love-Hate Relationship With Marital Agreements: Why Ohio Should Lift Its Prohibition On Postnuptial Agreements, Natasha Wasil
Cleveland State Law Review
Ohio has been accepting of prenuptial agreements since its landmark decision in Gross v. Gross in 1984, declaring them to be not void per se as being against public policy. Unfortunately, Ohio’s evolution of the law regarding marital agreements has remained at a stand-still since Gross. Through the twenty-first century, a majority of states have responded to the evolution of marriage by enacting legislation, or judicially by court order, to allow spouses to enter into contracts after marriage to allocate the division of property and legal obligations of the couple in the event of divorce, commonly known as “postnuptial …