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Articles 1 - 30 of 337
Full-Text Articles in Law
Frivolous Defenses, Thomas D. Russell
Frivolous Defenses, Thomas D. Russell
Cleveland State Law Review
This Article is about civil procedure, torts, insurance, litigation, and professional ethics. The Article is the opening article in a conversation with Stanford Law Professor Nora Freeman Engstrom, who has written about the plaintiffs’ bar and settlement mill attorneys. The empirical center of this piece examines 356 answers to 298 car crash personal injury cases in Colorado’s district courts. The Article situates these cases within dispute pyramid elements, including the total number of miles-traveled within Colorado and the volume of civil litigation. The Article then analyzes the defense attorneys’ departures from the Colorado Rules of Civil Procedure, especially Rule 8. …
The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure
The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure
Cleveland State Law Review
This Article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this Article, we offer a narrative discussion of key variables, and we detail the results of our logistic regression analysis. The most salient predictive variable was …
Punitive Damages Revisited: A Statistical Analysis Of How Federal Circuit Courts Decide The Constitutionality Of Such Awards, Hironari Momioka
Punitive Damages Revisited: A Statistical Analysis Of How Federal Circuit Courts Decide The Constitutionality Of Such Awards, Hironari Momioka
Cleveland State Law Review
Using data from punitive damages decisions of U.S. federal circuit courts from 2004 to 2012, this paper attempts to establish empirically the following: (1) there is no apparent statistical difference between the levels of jury and judge awards; (2) U.S. Supreme Court decisions such as Philip Morris (2007) or Exxon (2008) do not actually or substantially affect the level of punitive damage awards; (3) with regard to the cases involving remittitur, or reduction of awards, the Exxon decision did not radically affect the decreasing ratio of punitive to compensatory damage awards; (4) as the levels of compensatory awards go up, …
Can Dead Soldiers Revive A "Dead" Doctrine? An Argument For The Revitalization Of "Fighting Words" To Protect Grieving Families Post-Snyder V. Phelps, Kevin P. Donoughe
Can Dead Soldiers Revive A "Dead" Doctrine? An Argument For The Revitalization Of "Fighting Words" To Protect Grieving Families Post-Snyder V. Phelps, Kevin P. Donoughe
Cleveland State Law Review
This Note avers that speech of the Westboro Baptist Church, in the context of funeral pickets, can be construed as targeted personal attacks on grieving families which have the potential to incite—and indeed have incited—immediate breaches of the peace and violent rebuttals. In light of Snyder, and the inadequacy of time, place, and manner statutes as a protection for grieving families, this Note argues for the revitalization of the “fighting words” doctrine to encompass targeted, ad hominem attacks from organizations like the Westboro Baptist Church, thereby leaving this speech unprotected by the First Amendment and exposing the speakers to tort …
Sanctions Or Tort? A Review Of Ohio's Treatment Of Independent Causes Of Action For Spoliation Of Evidence, Justin J. Hawal
Sanctions Or Tort? A Review Of Ohio's Treatment Of Independent Causes Of Action For Spoliation Of Evidence, Justin J. Hawal
Cleveland State Law Review
The Note that follows will explore the different variations of independent torts for spoliation as well as various policy arguments used by supporters and critics of the torts. Specifically, Section II of this Note will explore the history behind the recognition of independent torts for spoliation. Section III will explain the traditional remedies courts have used to combat spoliation of evidence, and Section IV will detail the various forms of the spoliation tort. Section V of this paper will examine various policy arguments employed by supporters and detractors of the torts. Section VI will examine Ohio’s treatment of the various …
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Cleveland State Law Review
The Supreme Court’s recent decisions concerning preclusion doctrine stress the “deep-rooted historic tradition that everyone should have his own day in court.” Nonetheless, “properly conducted class actions” are a recognized exception to this general rule because such actions ensure that nonparties are “adequately represented by someone with the same interests who was a party to the suit.” Mass torts, however, frequently involve numerous plaintiffs with diverse legal and factual issues that are not “sufficiently cohesive to warrant adjudication by representation.” Thus, it may be reasonably feared that the Court’s firm insistence on preserving individual autonomy will deny plaintiffs the economies …
Tort, Moral Luck, And Blame, Christopher Jackson
Tort, Moral Luck, And Blame, Christopher Jackson
Cleveland State Law Review
For the last several decades, academics have been fighting over what we might think of as the soul of tort law. Law & economic theorists contend that tort is about the efficient allocation of the costs of accidents; traditionalists view tort as a law of wrongs and redress. A common criticism wielded against the traditionalists is the problem of moral luck: It is a bedrock principle of morality that you can only be responsible for that which is under your control. But in many cases, whether and how much a plaintiff recovers against a defendant will turn entirely on factors …
The Distorted Reality Of Civil Recourse Theory , Alan Calnan
The Distorted Reality Of Civil Recourse Theory , Alan Calnan
Cleveland State Law Review
In their recent article Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory (CRT) of tort law. A purely descriptive account, CRT holds that tort law is exclusively a scheme of private rights for the redress of legal wrongs and is not a pragmatic mechanism for imposing strict liability or implementing public policy. The present paper challenges this view by revealing critical errors in its perspective, methodology, and analysis. It shows that Goldberg and Zipursky do not objectively observe tort law and uncritically report what they …
The Civil False Claims Act And Its Unreasonably Broad Scope Of Liability: The Need For Real "Clarifications" Following The Fraud Enforcement And Recovery Act Of 2009, Ryan Winkler
Cleveland State Law Review
This Note analyzes Congress's most recent attempts to recover fraudulently secured government funds through its modifications of the False Claims Act ("FCA"), and concludes that an amendment to the Act is necessary. To begin, Part II.A. presents a brief historical tracking of the FCA, including the original FCA of 1863, and the critical amendments through 1986. Part II.B. explores relevant interpretations by the courts that established the landscape of false claims litigation prior to the Fraud Enforcement and Recovery Act of 2009 ("FERA"), including Allison Engine v. United States ex. rel. Sanders, in which the United States Supreme Court reversed …
Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta
Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta
Cleveland State Law Review
The Sixth Circuit's inconsistent jurisprudence threatens the delicate balance that the defense aims to strike between protecting citizens from having their constitutional rights violated on the one hand and protecting government officials from undue interference with their official duties on the other. This Note critiques the medical emergency-law enforcement response capacity the Sixth Circuit has set forth to help adjudicate qualified immunity claims and suggests improvements the court can make to its qualified immunity jurisprudence.In Part II, I briefly trace the Supreme Court's development of the doctrine and outline the doctrine's policy goals. In Part III, I develop my thesis …
Mixing Oil And Water: Reconciling The Substantial Factor And Result-Within-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Mixing Oil And Water: Reconciling The Substantial Factor And Result-Within-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Cleveland State Law Review
Most recently, however, the courts—the entities mandated to apply proximate cause during the course of the analysis of liability for negligence—appear to have brokered a peace between the dueling conceptualizations of proximate cause. As applied, the proximate cause analysis grounded in substantial factor appears to be yielding the same results with respect to liability as the proximate cause analysis grounded in foreseeability. It is the thesis of this Article that such a peace has, in fact, been brokered; whether approached from the means of substantial factor or result-within-the-risk, the end is the finding of common ground for the purpose of …
Alternative Liability And Deprivation Of Remedy: Teaching Old Tort Law New Tricks, Adam L. Fletcher
Alternative Liability And Deprivation Of Remedy: Teaching Old Tort Law New Tricks, Adam L. Fletcher
Cleveland State Law Review
The problems presented by “tortfeasor indeterminacy” are perhaps the greatest remaining point of contention in the otherwise generally overlooked requirement of cause-in-fact. The issue is deceptively simple; several defendants have breached a duty to the plaintiff and one of their breaches is the cause-in-fact of plaintiff's injury, but it is impossible to tell which one. As a result, the plaintiff cannot meet his evidentiary burden on the element of cause-in-fact and is unable to recover. In response to the plaintiff's dilemma, courts have developed the doctrines of “alternative liability” and “market-share liability.” Yet many courts and commentators have rejected these …
Driving Through The Dense Fog: Analysis Of And Proposed Changes To Ohio Tortious Interference Law, Eric P. Voigt
Driving Through The Dense Fog: Analysis Of And Proposed Changes To Ohio Tortious Interference Law, Eric P. Voigt
Cleveland State Law Review
This Article summarizes and analyzes each element of a claim for tortious interference with a contract or a business relationship under Ohio law. It argues that certain conduct should constitute tortious interference and that other conduct should not. Although my Article focuses on Ohio law, it has a national application. The Article argues that the law of tortious interference should be developed to further competition, to protect the contractual rights of parties, and to encourage freedom of action for the alleged interferer. This Article (1) discusses when businesses and competitors may lawfully interfere with the contracts or business relationships of …
Use Of Colossus To Measure The General Damages Of A Personal Injury Claim Demonstrates Good Faith Claims Handling, Dawn R. Bonnett
Use Of Colossus To Measure The General Damages Of A Personal Injury Claim Demonstrates Good Faith Claims Handling, Dawn R. Bonnett
Cleveland State Law Review
Because the law of bad faith is the most volatile of the causes of action, this Note will discuss how using Colossus demonstrates good faith claims handling by insurance companies. Initially, this Note will discuss how Colossus works so readers have an understanding of the product. Following the Colossus section, the Note will discuss the history of bad faith. Finally, this Note will analyze how Colossus assists insurers in meeting the different good faith standards across the nation.
This One's For The Children: The Time Has Come To Hold Guardians Ad Litem Responsible For Negligent Injury And Death To Their Charges, Inga Laurent
Cleveland State Law Review
Absolute immunity has historic justifications but it also represents one of the major failures of the modem child welfare system. Attorneys who act as guardians are granted absolute immunity, which serves as a shield that excuses them from being accountable for the consequences of their actions. Without presentation of a defense, all the parties involved are left to speculate as to whether the guardian adequately performed the necessary duties to protect the child. Immunity also perpetuates maintenance of the status quo rather than moving toward improved systems of care and accountability. Section II of this note provides an overview of …
Writing Checks Or Righting Wrongs: Election Funding And The Tort Decisions Of The Ohio Supreme Court, James T. O'Reilly
Writing Checks Or Righting Wrongs: Election Funding And The Tort Decisions Of The Ohio Supreme Court, James T. O'Reilly
Cleveland State Law Review
This paper will try to address the court's present and future course in tort law, with particular focus on products liability, malpractice, and employer tort liability. These are the most intriguing segments of modern tort law in Ohio. The paper concludes that stare decisis and the precedential accretion of the common law no longer seem to matter to the Ohio Supreme Court. Instead, the cacophony of a fractured court has imperiled predictability and imperiled the court's national reputation. Instead, the topic of a prospective justice's view of the tort system is unfortunately an early and frequent conversation in recruitment, selection, …
Nursing Home Tort Reform And Ohio House Bill 412: Why Have We Abandoned Our Neglected And Abused Elderly Population, Robin P. Bravchok
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 led to strict reductions …
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
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 …
Quest For Fairness In Compensating Victims Of September 11, The, Robert L. Rabin
Quest For Fairness In Compensating Victims Of September 11, The, Robert L. Rabin
Cleveland State Law Review
Aside from natural disasters, when tragedy strikes - taking its toll in fatalities and serious injuries - we ordinarily look to the tort system for redress. Tort is not the exclusive form of redress, of course, in this era of private insurance and government disability programs. But still, it remains our most highly visible mechanism for assigning responsibility and providing compensation. In this Article, I will begin by describing the approach to compensation taken in the Victim Compensation Fund. I will then discuss the implementing regulations promulgated by the Special Master appointed under the Fund. Next, I will offer a …
No Pain, No Gain, No Compensation: Expoliting Professional Athletes Through Substandard Medical Care Administered By Team Physician, Nick Dicello
Cleveland State Law Review
This note discusses the role of the team physician and the unique conflicts he or she faces when providing medical care to athletes. In particular, the note describes the pressure team doctors experience from team management, the coaching staff, and the players themselves. Next, the note discusses the types of claims professional athletes have brought against their doctors and team employers and how the terms of collective bargaining agreements (CBA) and workers' compensation laws create obstacles to their recovery. The note will explore the need for a specialized legal standard within the practice of sports medicine and identify the disincentive …
School Principals And New York Times: Ohio's Narrow Reading Of Who Is A Public Official Or Public Figure, Andrew L. Turscak Jr.
School Principals And New York Times: Ohio's Narrow Reading Of Who Is A Public Official Or Public Figure, Andrew L. Turscak Jr.
Cleveland State Law Review
The United States Supreme Court has promulgated the rule that plaintiffs in defamation cases who are either public officials or public figures must prove that an alleged defamatory statement was made with "actual malice."' Those individuals who have achieved public official or public figure status have a higher burden of proof than ordinary plaintiffs; they must show that a defamatory falsehood was made "with knowledge that it was false or with reckless disregard of whether it was false or not." The Supreme Court has not listed which government employees qualify for public official status, but it has provided some guidance. …
Airbag Products Liability Litigation: State Common Law Tort Claims Are Not Automatically Preempted By Federal Legislation , Stephen D. Lichtenstein, Gerald R. Ferrera
Airbag Products Liability Litigation: State Common Law Tort Claims Are Not Automatically Preempted By Federal Legislation , Stephen D. Lichtenstein, Gerald R. Ferrera
Cleveland State Law Review
This article addresses an important and recurring issue of federalism, and attempts to resolve the tensions that exist between federal and state laws in the context of recent automobile airbag litigation. The authors trace the evolution of the preemption doctrine as it relates to airbag litigation, and write further as to how manufacturers adapt, developing business and ethical strategies of compliance to concurrent state and federal regulation. Two recent important decisions involving no airbag litigation, Tebbetts v. Ford Motor Co. and Wilson v. Pleasant, are interpretive of two provisions of the Safety Act. The former case discussed a preemption clause, …
Ohio Tort Reform In 1998: The War Continues , Stephen J. Werber
Ohio Tort Reform In 1998: The War Continues , Stephen J. Werber
Cleveland State Law Review
For more than a decade a war has been waged between forces seeking legislative reform of tort law, with emphasis on product liability, and the Ohio Supreme Court. The battleground has been the legislative enactments of the Ohio General Assembly. This legislation has faced consistent challenge before the court as a proper exercise of its power of judicial review. This article discusses the two primary cases in which the court has won its war with the legislature by replacing the legislative words and intent with judicial interpretations. Part II begins the discussion with a look at the Carrel v. Allied …
Anderson V. St. Francis-St. George Hospital: Wrongful Living From An American And Jewish Legal Perspective , Daniel Pollack, Chaim Steinmetz, Vicki Lens
Anderson V. St. Francis-St. George Hospital: Wrongful Living From An American And Jewish Legal Perspective , Daniel Pollack, Chaim Steinmetz, Vicki Lens
Cleveland State Law Review
As advances in medical technology have kept people alive longer, the right to refuse life-sustaining treatment has taken on an even more crucial and urgent significance to dying patients and their families. While modern medicine may have learned to save lives, the lives it has saved are often severely diminished and filled with pain and suffering. Although the right to refuse life saving medical treatment is firmly embedded in our nation's laws, what to do when this right is ignored has not been firmly settled. The Anderson court answered this question by "splitting the difference." It affirmed Winter's right to …
The Strict Application Of The Restatement, Ohio Law And The Rules Of Civil Procedure: Estates Of Morgan V. Fairfield Family Counseling Center, Geoffrey M. Wardle, Jeffrey L. Mallon
The Strict Application Of The Restatement, Ohio Law And The Rules Of Civil Procedure: Estates Of Morgan V. Fairfield Family Counseling Center, Geoffrey M. Wardle, Jeffrey L. Mallon
Cleveland State Law Review
Considered by some in the mental health profession as the imposition of an onerous duty, the Ohio Supreme Court's decision in Estates of Morgan v. Fairfield Family Counseling Center represents an extension of the recognized legal duty imposed upon mental health practitioners who treat inpatients to those who treat outpatients. This created a uniform standard. The article begins in Part II by describing the story of a psychiatric patient, Matt Morgan. Part III then discusses the duty to control in the outpatient setting by going through traditional tort analysis, stare decisis, strict statutory application, and civil procedure. Part IV concludes …
Ohio's Employment Intentional Tort: A Workers' Compensation Exception, Or The Creation Of An Entirely New Cause Of Action, Marc A. Claybon
Ohio's Employment Intentional Tort: A Workers' Compensation Exception, Or The Creation Of An Entirely New Cause Of Action, Marc A. Claybon
Cleveland State Law Review
This note will begin with a review of the history of workers' compensation in Ohio, including the development of the exclusive remedy provision. Next, this note will discuss the types of injuries normally compensated by the Ohio Workers' Compensation Act, followed by an analysis of the Ohio Supreme Court cases and legislation creating an intentional tort exception in Ohio. Finally, this note will critique newly enacted Revised Code section 2745.01, discuss the severe problems associated with an expansive interpretation of the statute, and suggest that continuing legislative reform is needed in this area of law.
An Overview Of Ohio Product Liability Law, Stephen J. Werber
An Overview Of Ohio Product Liability Law, Stephen J. Werber
Cleveland State Law Review
Although claims predicated on harm caused by defective products sounding in warranty and negligence, aided and abetted by the doctrine of res ipsa loquitur, existed well before the twentieth century, product liability as we now know it was initially foreshadowed in Ohio in the seminal case of Rogers v. Toni Home Permanent Co. Shortly after the true product liability revolution began, Ohio joined the revolution with the adoption of strict liability in warranty without privity in Lonzrick v. Republic Steel Corp. The Ohio Supreme Court then recognized that this approach to strict liability was no different from the more recognized …
Section 1983 And The Collateral Source Rule, Linda L. House
Section 1983 And The Collateral Source Rule, Linda L. House
Cleveland State Law Review
This note examines the different approaches to the application of the collateral source rule among federal and state courts entertaining §1983 actions and the principles which should be applied by courts to resolve the choice of law problem raised by the rule. The first section discusses the common law collateral source rule and recent state legislative alterations and abrogation of it. The second section explores current applications of the collateral source rule in federal and state courts entertaining §1983 actions. The third section suggests principles which should guide courts in their applications of the collateral source rule. This section further …
Legal Malpractice In Ohio, John C. Nemeth
Legal Malpractice In Ohio, John C. Nemeth
Cleveland State Law Review
This article will discuss the fundamentals of a legal malpractice case, specifically addressing two areas. The first involves the elements of a legal malpractice case. This discussion will expose two problems that continually appear in legal malpractice litigation: (1) expanding the liability of an attorney to third parties, and (2) determining whether the alleged malpractice was the proximate cause of the plaintiff's injuries. The second area of discussion will focus on the time limitations imposed for bringing a legal malpractice action. Additionally, in order to better understand the current state of the law, a brief discussion illustrating the historical development …
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Cleveland State Law Review
This article explores the policy reasons which courts have adopted to deny a private cause of action holding educators legally liable for deficiencies in a student's education. The introductory section provides the background on the basic issue of malpractice in education. Section two examines educational malpractice case law focusing first on cases involving negligence in basic academic skill instruction, then looking at negligence in special education. Section three explores the various duty of care arguments while section four discusses three alternate theories for recovery. Section five analyzes the policy reasons for denial of the tort of educational malpractice. New directions …