Law Commons^™

Postmodern Social Control: Dividuals And Surveillance, Ernest M. Oleksy

The Downtown Review

As a society's foundational philosophy changes, so, too, will its forms of social control. By using the works of thinkers like Deleuze and Foucault as pivot points, the dynamic nature of social interactions and the agents to mediate those actions shall be investigated. This article includes findings from archival analysis written in a journalistic prose for simplicity of consumption.

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …

Mad Men And Dead Men: Justification For Regulation Of Computer-Generated Images Of Deceased Celebrity Endorsers, Kerry Barrett

Cleveland State Law Review

Pursuant to the Federal Trade Commission Act, the Federal Trade Commission (FTC) is charged with consumer protection through the prohibition of unfair and deceptive trade practices. An unfair and deceptive trade practice is gaining in prominence and has not yet been subjected to FTC regulation. Computer-generated imagery (CGIs) of deceased celebrity endorsers are misleading to consumers and constitute a false advertisement. This Note evaluates how digitally resurrected endorsers pervert the consumer decision-making process through analysis of issue-relevant thinking, the match-up hypothesis, event-study analysis, social adaptation theory, and transfer theory. This Note also accounts for the macroeconomic effect of regulation of …

The Constitutionality Of Prison Privatization: An Analysis Of Prison Privatization In The United States And Israel, Stacey Jacovetti

Global Business Law Review

This note analyzes the constitutionality of the current state of prison privatization in the United States under the non-delegation doctrine and the due process clause. Furthermore, this note analyzes the Israeli Supreme Court's ruling holding prison privatization as unconstitutional under the Basic Law of the Right to Human Dignity and Liberty. Subsequently, an argument is made that the current authority for the utilization of private prisons in the United States is insufficient to establish the use of private prisons as constitutional. As such, this note argues that the overall scheme of privatization should provide for more detailed contracts--similar to those …

When States' Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This Article explores the nationally common problem of tension and conflict among state oil and gas statutes, constitutional home rule, and local control by considering intersections and tensions among the Ohio Constitution’s home rule authority, the Ohio oil and gas law’s preemption provision, and the many regulatory efforts of Ohio’s local governments. It explores the scope of the Ohio Constitution’s home rule authority, in part, by evaluating courts’ statements on the validity of several types of local ordinances, as they confront home rule and a legislative attempt at preemption. Types of local ordinances evaluated include those that prohibit or ban …

How The Tenth Amendment Saved The Constitution, Contradicts The Modern View Of Broad Federal Power, And Imposes Strict Limitations, Steven T. Voigt

Et Cetera

This paper challenges the position that the Tenth Amendment merely states an abstract concept and has no place in constitutional interpretation. The history of the Tenth Amendment portrays a much greater significance for this amendment. Not only did the Tenth Amendment likely save the Constitution and preserve the union, but it imposed very real restraints on federal power. The implication for modern courts is that the Tenth Amendment cannot be ignored. Far from just stating a truism, it sets forth a constitutional rule of interpretation that must be applied whenever the scope of any federal power is examined.

Constitutional Revision: Ohio Style, Steven H. Steinglass

Law Faculty Articles and Essays

This Article looks at state constitutional law in a single state—Ohio—and focuses on the history of constitutional revision in it. Consistent with the Symposium’s theme of popular constitutionalism, the Article reviews the expansion—albeit the slow expansion—of the groups that were permitted to participate in the political process in Ohio as well as the expansion and use of the tools available to those seeking constitutional change. As for the substantive constitutional changes that have taken place in Ohio, the Article reviews them summarily, primarily to put the topic of constitutional revision in context.

To understand constitutional revision in a single state, …

Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead

Law Faculty Articles and Essays

Over the past decade, there has been a dramatic increase in the number of areas where asking for help is restricted or banned. Whether called begging, panhandling, or solicitation, cities were spurred on by concerns of business owners and residents to ban or highly restrict this type of speech from occurring in public areas. Yet laws such as these have been repeatedly struck down by courts in recent months, fueled in large part by the Supreme Court’s decision in Reed v. City of Gilbert.

In this essay I argue that, at least in the context of anti-panhandling legislation, Reed …

The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, And Water Law, Colin W. Maguire

Et Cetera

The EPA and US Army Corps of Engineers’ agency rule regarding the definition of “Waters of the United States” under the Clean Water Act increased jurisdictional assertions by as much as 5%. What’s the big deal? This violates the Home Rule of state and local governments. This violation also creates concerns where many property owners are not sure if they need federal permits to develop land under the Clean Water Act. With issues like this new Clean Water Act rule, the drought conditions in the Western U.S., and international concerns regarding fresh water, water law is a critical area which …

Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan C. Weinstein

Law Faculty Articles and Essays

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. …

Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan Weinstein, Brian Connolly

All Maxine Goodman Levin School of Urban Affairs Publications

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, …

The "Originalism Is Not History" Disclaimer: A Historian's Rebuttal, Patrick J. Charles

Et Cetera

Many originalists disclaim that competing strands of originalism are not history. This is perplexing, in part because the disclaimer contradicts what is arguably the central purpose of originalism: decoding the original meaning of constitutional text at a fixed point in time. Originalism’s strength is that it provides legal professionals with familiar tools to supplement the world of historical uncertainty. By accepting the premise that originalists only need to be familiar with a “subspecialty of history” or the “investigation of legal meanings,” originalism fails by facilitating mythmaking more so than fact-finding. Of course, originalism can be reformed in this respect. One …

The Heritage Guide To The Constitution, Second Edition: What Has Changed Over The Past Decade, And What Lies Ahead?, David Forte, Edwin Meese Iii, Matthew Spalding

Law Faculty Articles and Essays

The Heritage Guide to the Constitution, first released in 2005, brought together more than 100 of the nation’s best legal experts to provide line-by-line examination of each clause of the Constitution and its contemporary meaning—the first such comprehensive commentary to appear in many decades. The Heritage Guide to the Constitution: Fully Revised Second Edition takes into account a decade of Supreme Court decisions and legal scholarship on such issues as gun rights, religious freedom, campaign finance, civil rights, and health care reform. The Founders’ guiding principles remain unchanged, yet a number of Supreme Court decisions over the past decade …

“Fire Away”: I Have No Right To Not Be Insulted, David Barnhizer

David Barnhizer

In theory, universities are the institutions that are responsible for advancing our freedom of thought and discourse through the work of independent scholars and the teaching of each generation of students. But for several decades, universities and other educational institutions have increasingly set up rules aimed at protecting individuals and groups from criticism that those newly empowered individuals and groups consider insensitive, offensive, harassing, intolerant and disrespectful, or critical of their core belief systems. Even though it has been claimed that disadvantaged interest groups have a right to use one-sided tactics of intolerance against those they consider to be responsible …

King, Chevron, And The Age Of Textualism, Abigail R. Moncrieff

Law Faculty Articles and Essays

In the King v. Burwell oral arguments, Chief Justice John Roberts—usually one of the more active members of the Court—asked only one substantive question, addressed to the Solicitor General: "If you're right about Chevron [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation?" As it turns out, that question was crucial to Roberts's thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question's import (myself included). The result of Roberts's actual thinking was an unfortunate outcome for Chevron—and potentially for the rule of law—despite …

The First Amendment Protection Of Charitable Speech, Joseph Mead

All Maxine Goodman Levin School of Urban Affairs Publications

Although philanthropy ranks among the best of human endeavors, local governments across the country have severely restricted charitable entreaties by organizations and individuals alike, all in the name of eliminating "panhandlers." These laws rely on premises that increasingly conflict with Supreme Court instructions about the freedom of speech. Yet lingering uncertainty about where exactly charitable restrictions fall in First Amendment jurisprudence has encouraged local governments to innovate new statutory formulations to wage war on expressions of poverty in order to "clean up" their cities. This piece examines seven arguments commonly used to justify restrictions on charitable solicitations and finds them …

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

Officers Under The Appointments Clause, John Plecnik

Law Faculty Articles and Essays

Much ink has been spilled, and many keyboards worn, debating the definition of "Officers of the United States" under the Appointments Clause of Article II, Section 2, Clause 2 of the Constitution. The distinction between Officers and employees is constitutionally and practically significant, because the former must be appointed by the President, with or without the advice and consent of the Senate, Courts of Law, or Heads of Departments. In contrast, employees may be hired by anyone in any manner.

Appointments Clause controversies are triggered when a government official who was hired as an employee is accused of unconstitutionally wielding …

Brief For The National Association Of Social Workers And The Ohio Chapter Of The National Association Of Social Workers As Amici Curie In Support Of Petitioners, No. 13-933, United States Supreme Court (Mar. 6, 2014), Doron M. Kalir, Carolyn I. Polowy

Law Faculty Briefs and Court Documents

NASW's first argument is simple. To protect children from abuse - a major congressional and state legislative goal - this Court should apply qualified immunity to protect social workers from personal liability where a reasonable decision has been made to remove a child without a warrant.

NASW's second argument is equally cogent. DeShaney was decided 25 years ago. Since then, this Court's "continued silence" on the issue, Kovacic, 724 F.3d at 708 (Sutton, J., dissenting), has failed "to provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment." Camreta v. …

Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer

David Barnhizer

None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …

Book Review: Court-Packing And Legal Creation - Symposium: History And Meaning Of The Constitution, Sheldon Gelman

Cleveland State Law Review

Review of FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle over the New Deal by James F. Simon. New York: Simon & Schuster. 2012

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."

Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …

Evictions, Aspiration And Avoidance, Brian E. Ray

Law Faculty Articles and Essays

In December 2011 four of the Constitutional Court’s five socio-economic rights cases turned on evictions.2 The Court decided three eviction-related cases in the 2012 term and two more in 2013.3 For a Court that averages fewer than 30 decisions per term 10 decisions in less than two and a half years is an extraordinary level of attention devoted to a single area of constitutional law.4 Does this sustained attention to eviction cases harbinger a significant development in the Court’s approach to the right to housing in FC s 26 and to socio-economic rights more generally? The cases provide some evidence …

Originalism's Promise, And Its Limits - Symposium: History And Meaning Of The Constitution, Lee J. Strang

Cleveland State Law Review

At the same time, I believe, originalism’s promise remains. Originalism’s promise is three-fold. First, originalism promises that it can paint constitutional interpretation in the most normatively attractive light. Not ideal results. Instead—on balance and systemically—normatively more attractive results than its competitors. Second, originalism promises that constitutional interpretation can fit the key facets of our Constitution. These key facets include, for example, the Constitution’s writtenness and its particular origins, facets that originalism better fits than alternative methods of constitutional interpretation. Third, originalism promises that constitutional interpretation can respect judges’ capacities. Judges’ pivotal role necessitates that interpretative methodologies work with their capacities, …

Supplemental Pay Or Supplemental Power?: Why The Ohio General Assembly's Compensation Structure Unconstitutionally Centralizes Power In The General Assembly Leadership, Frank Camardo

Cleveland State Law Review

In the Ohio House and Senate, committee chairpersons and other select members of legislative committees receive a supplemental salary, in addition to their base legislator pay, for their service on the committee. The Ohio Constitution, however, mandates that legislator pay be fixed by law (hereinafter “Fixed Compensation Provision”) and that no changes to compensation take place during the term (hereinafter “No Change Provision”). Because the Speaker of the House and the Senate President have the power to discretionarily appoint and remove committee chairpersons during the term, compensation necessarily changes during the term of a removed chairperson. Such in-term changes violate …

Liberal Originalism: The Declaration Of Independence And Constitutional Interpretation - Symposium: History And Meaning Of The Constitution, Scott D. Gerber

Cleveland State Law Review

In my work I have labeled the dominant iterations of originalism “conservative originalism.” It is an approach that dictates that judges may legitimately recognize only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern—to make moral choices—through the political process. “Liberal originalism,” by contrast, maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are …

History In Law, Mythmaking, And Constitutional Legitimacy - Symposium: History And Meaning Of The Constitution, Patrick J. Charles

Cleveland State Law Review

What truly separates an historical inquiry, however, from an originalist inquiry is the degree by which myth consumes fact. Certainly, regardless of whether one is performing an historical or originalist inquiry, the methodological process takes part in generating myth. In terms of where the respective inquiries are to be placed on the spectrum of constitutional mythmaking, however, the standard historical inquiry is far less likely to engage in the process than its originalist counterpart. This is mainly because originalism is not so much about reasoning from known historical truths, but instead about recreating a hypothetical expected legal application of how …

Through A Prism Darkly: Surveillance And Speech Suppression In The Post-Democracy Electronic State", David Barnhizer

David Barnhizer

Through a PRISM Darkly: Surveillance and Speech Suppression in the “Post-Democracy Electronic State” David Barnhizer There is no longer an American democracy. America is changing by the moment into a new political form, the “Post-Democracy Electronic State”. It has “morphed” into competing fragments operating within the physical territory defined as the United States while tenuously holding on to a few of the basic creeds that represent what we long considered an exceptional political experiment. That post-Democracy political order paradoxically consists of a combination of fragmented special interests eager to punish anyone that challenges their desires and a central government that …

"Linguistic Cleansing": Strategies For Redesigning Human Perception And Behavior, David Barnhizer

David Barnhizer

James Madison recognized the need to balance competing interests in his analysis of factious groups. In Federalist No. 10, Madison sets out the idea of faction in the following words. “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Madison goes on to describe two “cures” for faction. One is to “destroy the liberty” that allows it to bloom, …

The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff

Law Faculty Articles and Essays

There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …