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Articles 1 - 30 of 59
Full-Text Articles in Law
Cyber Bullying And Free Speech: Striking An Age-Appropriate Balance, Raul R. Calvoz, Bradley W. Davis, Mark A. Gooden
Cyber Bullying And Free Speech: Striking An Age-Appropriate Balance, Raul R. Calvoz, Bradley W. Davis, Mark A. Gooden
Cleveland State Law Review
Cyber bullying has generally been dealt with by the courts using one of two legal analyses: the “true threats” doctrine, or the Tinker substantial disruption test. This law review, the Cleveland State Law Review, recently published Anti-Cyber Bullying Statutes: Threat to Student Free Speech (referred to herein as “the Threat to Speech article”), which addressed these two theories, and argued that the current evolution of cyber bullying legislation simply goes too far. For example, Hayward states Anti-cyber bullying laws are the greatest threat to student speech because they seek to censor it anytime it occurs, using “substantial disruption” of school …
Some Legal Impacts Of The Emerging International Climate Change Regime On Energy Prices, James E. Hickey Jr.
Some Legal Impacts Of The Emerging International Climate Change Regime On Energy Prices, James E. Hickey Jr.
Global Business Law Review
From the beginning of scientific assessment of climate change in the late 1970’s to the most recent conference of the parties (COP) to the Kyoto Protocol in Doha in 2012 , the international community has been attempting to establish a workable legal regime to deal with climate change. The purpose of this article is to explore some of the legal effects this emerging international climate change regime may have on energy prices in the foreseeable future. Specifically, this article in section II article accepts certain predicates relating to climate change and energy prices. In section III, it lays out briefly …
The Doha Development Dysfunction: Problems Of The Wto Multilateral Trading System, Erik M. Dickinson
The Doha Development Dysfunction: Problems Of The Wto Multilateral Trading System, Erik M. Dickinson
Global Business Law Review
This Note argues that WTO member nations should use bilateral and regional trade agreements to solve key issues facing the Doha Round negotiations in order to lower trade barriers and foster a climate of free trade necessary to resurrect the stalled Doha Round. Several problems including the WTO’s lack of authority to enforce DSU decisions, protectionist trade measures, and the single undertaking have threatened the long term stability of the WTO’s multilateral trading system. However, if bilateral and regional trade agreements were used to solve key issues, much like they were used by the United States in the 1970s, WTO …
Masthead, Cleveland State Law Review
Defining The Scope Of Indirect Expropriation For International Investments , Peter D. Isakoff
Defining The Scope Of Indirect Expropriation For International Investments , Peter D. Isakoff
Global Business Law Review
At present, arbitral tribunals have applied a variety of standards to ascertain when indirect expropriation occurs. This article examines the complexities and ambiguities of current indirect expropriation standards and argues that a clear, uniform standard is needed to identify indirect expropriation. Ultimately, this article proposes that arbitral tribunals should only find that indirect expropriation occurs when (i) a state takes actions that substantially deprive the foreign investor of the profitability of its investment, and (ii) the state action was not reasonably predictable to the investor. Part I of this article provides a summary of the current state of expropriation doctrine. …
Productions Chains And Workplace Law Violations: The Case Of Apple And Foxconn , Hilary K. Josephs
Productions Chains And Workplace Law Violations: The Case Of Apple And Foxconn , Hilary K. Josephs
Global Business Law Review
For decades U.S. based multinational companies have outsourced production of goods to developing countries with low labor costs and weak implementation of protective legislation. The consumer electronics giant Apple is a prime example: it outsources virtually all of its manufacturing to companies such as Foxconn, a Taiwanese original equipment manufacturer, which employs over a million assembly line workers in China. In the last several years Foxconn's operations have been under scrutiny for violation of Chinese domestic employment law. This paper focuses on the problem of compulsory overtime, a violation of both Chinese law and international labor standards, and various measures …
Shale Revolution Or Evolution: Opportunities And Challenges For Europe, Owen L. Anderson
Shale Revolution Or Evolution: Opportunities And Challenges For Europe, Owen L. Anderson
Global Business Law Review
Will European shale gas be developed as rapidly as it has in the United States? If one considers that shale gas took about 30 years to develop from an experimental demonstration into a fast developing commercial enterprise, it should not take that long in Europe. Indeed, the United Kingdom, after lifting its moratorium on hydraulic fracturing, appears to be moving quite rapidly. Poland is actively promoting shale gas but so far without economic production. On the other hand, if one considers how rapidly shale gas has expanded in the United States since 2003 and how rapidly investment in shale gas …
The Impact Of Shale Development On International And Domestic Oil And Gas Contracts, Andrew R. Thomas
The Impact Of Shale Development On International And Domestic Oil And Gas Contracts, Andrew R. Thomas
Global Business Law Review
In new oil and gas provinces, such as Ohio, Pennsylvania or Ukraine, learning oil and gas customs can be a hard lesson for those trying to break into the industry as service providers. They need to get up to speed quickly on customs, form agreements, and applicable laws. But unconventional oil and gas recovery will also lead eventually to unconventional agreements. In this regard, the nascent upstream service industry in new shale provinces are not so far behind - there is reason to be to be optimistic that oil and gas companies will be rethinking how they transact business as …
Health Care Sharing Ministries: Scam Or Solution?, Benjamin Boyd
Health Care Sharing Ministries: Scam Or Solution?, Benjamin Boyd
Journal of Law and Health
Health Care Share Ministries (HCSMs) provide “a health care cost sharing arrangement among persons of similar and sincerely held beliefs.” HCSMs are not-for-profit religious organizations that act as clearinghouses for “those who have medical expenses and those who desire to share the burden of those medical expenses. This Article begins with a survey of the general regulatory landscape for HCSMs. Following that, four key questions about HCSMs structure the rest of this Article. The first question asks, what are HCSMs? To answer that question, this Article examines the basic aspects of the Medi-Share program and the Christian Brotherhood Newsletter. Second, …
Finding A Cure: Incentivizing Partnerships Between Disease Advocacy Groups And Academic Commercial Researchers , Anne M. Readel
Finding A Cure: Incentivizing Partnerships Between Disease Advocacy Groups And Academic Commercial Researchers , Anne M. Readel
Journal of Law and Health
Collaborations between for-profit drug companies and not-for-profit disease advocacy groups have risen in recent years in an effort to find cures for orphan diseases. These unique and beneficial collaborations are a result of disease advocacy groups assuming a more active role in drug development through the use of “venture philanthropy,” which employs concepts and techniques from venture capitalism and applies them to achieving philanthropic goals. While these collaborations have found remarkable success, such as the discovery of the first known cure for cystic fibrosis in 2012, venture philanthropy for drug discovery presents numerous legal and social challenges. This Article examines …
Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , Jennifer Clark
Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , Jennifer Clark
Journal of Law and Health
In New York suppression of evidence is only appropriate where constitutional, statutory, or decisional authority mandates it, even if obtained by unethical or unlawful means. The courts have been split on how to apply this standard to evidence obtained in violation of HIPAA. In the case In re Miguel M., the New York Court of Appeals addressed this question for the first time, finding that such evidence should be suppressed. Because it is the first authoritative case in New York addressing the evidentiary impact of a HIPAA violation, it is tempting to read Miguel M. as creating a new evidentiary …
The Stark Physician Self-Referral Law And Accountable Care Organizations: Collision Course Or Opportunity To Reconcile Federal Anti-Abuse And Cost-Saving Legislation?, Benjamin Holland Able
The Stark Physician Self-Referral Law And Accountable Care Organizations: Collision Course Or Opportunity To Reconcile Federal Anti-Abuse And Cost-Saving Legislation?, Benjamin Holland Able
Journal of Law and Health
Scholars and legal practitioners have long debated the virtues and vices of integrated models of health care delivery and financing. Few such models have been as promising or as rapidly adopted as Accountable Care Organizations (“ACOs”), the latest concept in delivering cost-effective, high-quality health care. Implementation of pre-ACO models, however, never required extensive grants of immunity to providers and suppliers from the federal Stark physician self-referral law (“Stark”) and other fraud and abuse laws. The broad waivers issued by the Centers for Medicare & Medicaid Services (“CMS”) for implementing ACOs raise unprecedented legal questions concerning Stark’s application to these hospital/physician …
The Dark Side Of The Boom: The Peculiar Dilemma Of Modern False Claims Act Litigation, David S. Torborg
The Dark Side Of The Boom: The Peculiar Dilemma Of Modern False Claims Act Litigation, David S. Torborg
Journal of Law and Health
Spurred by treble damages, substantial penalties, and lucrative relator awards, litigation under federal and state False Claims Act (“FCA”) statutes has exploded in recent years. Much of that explosion stems from aggressive and creative legal theories that challenge controversial industry practices or even well-known loopholes or waste in government policy. Evidence from governmental entities can be critically important in litigating these FCA claims. Unique aspects of False Claims Act actions, however, can aggravate the risk of losing this important evidence, leaving the parties, judges, and juries without the evidentiary record necessary to equitably adjudicate these disputes. Defendants can face the …
Disparate Protections For American Human Trafficking Victims , Amanda Peters
Disparate Protections For American Human Trafficking Victims , Amanda Peters
Cleveland State Law Review
The federal government places victims, for the purpose of receiving protections, into two categories: first, international victims and second, American citizens or permanent residents. If an international trafficking victim qualifies to receive services as a result of having been trafficked, the United States will provide refugeelike protections through the TVPA. These protections include housing, food, cash assistance, job training, counseling, medical care, legal assistance, and other services that are available for a period of several years. Victims who are Americans, on the other hand, must find protection elsewhere. The United States government specifically excludes its own trafficked citizens from receiving …
The Blindsided Insider: Insider Trading Liability For Supervising A Rogue Trader , Adam Felsenthal
The Blindsided Insider: Insider Trading Liability For Supervising A Rogue Trader , Adam Felsenthal
Cleveland State Law Review
In the past few years, federal prosecutors and the Securities and Exchange Commission (SEC) have engaged in the widest-ranging and most successful probe of insider trading ever, focusing in particular on investment professionals. However, the government has failed to charge anyone on the basis of supervisory liability, essentially an accusation of failing to notice and stop illicit trading done under one’s supervision. This Article discusses all of the potential ways in which prosecutors could bring such a charge, ranging from SEC administrative liability to civil and criminal charges. Through the lens of a theoretical situation in which an “innocent bystander” …
Section 7433'S Statute Of Limitations: How Courts Have Wrongly Turned A Taxpayer's Exclusive Sword Into The Irs's Shield Against Damages , Diana Leyden
Cleveland State Law Review
Congress expressly authorized taxpayers to bring a private cause of action against the United States for economic damages caused by “unauthorized collection.” Codified as section 7433 of the Internal Revenue Code, this statute provides taxpayers with the exclusive remedy for abuses by IRS employees in connection with the collection of taxes. ... Despite the importance of section 7433 to check government unauthorized tortious collection activity, federal courts have turned section 7433 into a shield against excessive or unsupported IRS collection action, rather than maintain it as the small, but important, sword that Congress intended to give taxpayer. This Article contributes …
Using The Scientific Method In The Law: Examining State Interlocutory Appeals Procedures That Would Improve Uniformity, Efficiency, And Fairness In The Federal Appellate System, Hannah M. Smith
Cleveland State Law Review
[T}he current use of the federal interlocutory appeal process operates much like an appeal-less system. A pretrial motion is filed, the interlocutory order is given, and the petition for interlocutory review is usually denied. Thus, the case continues. It may continue into settlement negotiations or go to trial where the losing party files an appeal. That final appeal could find that the lower court erred, rendering that trial meritless. In reaching any of those stages, the adversely affected party more than likely devoted unnecessary time, resources, and finances in the case. Additionally, the parties are often unable to predict success …
Buying The Electorate: An Empirical Study Of The Current Campaign Finance Landscape And How The Supreme Court Erred In Not Revisiting Citizens United, William Alan Nelson Ii
Buying The Electorate: An Empirical Study Of The Current Campaign Finance Landscape And How The Supreme Court Erred In Not Revisiting Citizens United, William Alan Nelson Ii
Cleveland State Law Review
The Article discusses how the Supreme Court erred by summarily reversing the Montana Supreme Court’s decision in Western Tradition Partnership v. AG and not revisiting its holding in Citizens United v. FEC. The Article begins by discussing the holding in the Western Tradition Partnership case and analyzing both the majority and dissenting opinions. The Article then analyzes how the Montana Supreme Court distinguished Citizens United, with the Court specifically looking at the “unique” political history in Montana and finding that Montana’s ban on corporate independent political spending served a compelling state interest and was narrowly tailored to that interest. The …
Shame: A Different Criminal Law Proposal For Bullies, Xiyin Tang
Shame: A Different Criminal Law Proposal For Bullies, Xiyin Tang
Cleveland State Law Review
Public concern over bullying has reached an all-time high. The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly publicized prosecution of Dharun Ravi, who was convicted of fifteen counts and faced the possibility of ten years in prison. This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying. However, recently-enacted “cyber bullying” laws, which give complete discretion to school administrators, are weak and ineffective. I propose another solution: first, to …
Justice William J. Brennan, Jr., James Wilson, And The Pursuit Of Equality And Liberty, Deborah A. Roy
Justice William J. Brennan, Jr., James Wilson, And The Pursuit Of Equality And Liberty, Deborah A. Roy
Cleveland State Law Review
This Article analyzes the jurisprudence of one of the most transformative Supreme Court Justices, William J. Brennan, Jr., from the perspective of his vision that the United States Constitution is founded on Human Dignity. Justice Brennan expressed this principle in his opinions that advanced the realization of individual rights for each and every American. The principle of human dignity invokes the values of equality and liberty. The article shows that Justice Brennan traced the principle of human dignity back to the Founding Fathers and the constitutional government that they established. Rather than being unhinged from the Constitution as his critics …
A Last Step Rule For Direct Infringement Of Process Claims: Clarifying Indirect Infringement And Narrowing Joint Infringement, Stephen W. Moore
A Last Step Rule For Direct Infringement Of Process Claims: Clarifying Indirect Infringement And Narrowing Joint Infringement, Stephen W. Moore
Cleveland State Law Review
This Note proposes that the party who performs the last step of a patented process should be liable for direct infringement. Under this “Last Step Rule,” patented products and processes would be treated similarly—which is consistent with past decisions and is implied in the patent statute. As will be shown in this Note, adopting the Last Step Rule would make finding indirect patent infringement more straightforward and would limit the doctrine of joint infringement to claims for direct infringement. The proposed rule will be shown to be logically sound, supported by case law precedent, and consistent with the language and …
The Good, The Bad, And A New Kind Of Prenup: An Analysis Of The Ohio Legacy Trust Act And What Asset Protection Trusts Will Mean For Ohio, Kevin R. Mckinnis
The Good, The Bad, And A New Kind Of Prenup: An Analysis Of The Ohio Legacy Trust Act And What Asset Protection Trusts Will Mean For Ohio, Kevin R. Mckinnis
Cleveland State Law Review
It is human nature to want to protect what one has worked hard to earn or accomplish. It is this very nature that entices individuals to search for creative methods by which to protect one’s assets, whether from high tax rates or creditors. As laws continually change, individuals strive to protect their assets in the most effective and secure manner possible. As a result, the protection of one’s assets has evolved from the use of offshore Asset Protection Trusts (APTs) to the use of domestic APTs (DAPT). The Ohio Legacy Trust Act is an attempt to modernize Ohio’s wealth management …
A Troubled Agreement For Troubled Waters: How An Amended Boundry Waters Treaty Can Solve The Great Lakes Agreement's Fatal Flaws, Paul Shugar
Global Business Law Review
Great Lakes water fuels $4.2 trillion of gross-domestic product (“GDP”), making the Great Lakes Region the largest bi-national regional economy in the world. But what are the United States and Canada doing to protect the world’s largest readily available freshwater resource? The Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement’s failures show that Canada and the United State must amend the outdated Boundary Waters Treaty of 1909. This amended treaty would provide a uniform approach to regulating the Great Lakes so the states and provinces on both sides of the border must play by the same rules regarding water …
The Cost Of Progress: Enduring The Tax Deductibility Of International Corporate Social Responsibility Initiatives, Wayne C. Wood
The Cost Of Progress: Enduring The Tax Deductibility Of International Corporate Social Responsibility Initiatives, Wayne C. Wood
Global Business Law Review
Until the end of the twentieth century, the predominant view in America was that a corporation’s sole duty was to supply wealth to its shareholders. The idea that a corporation owes a broader duty to all of its stakeholders has gained ground based largely on the emerging international recognition of human rights norms. Increasingly American MNCs have opted to voluntarily create and implement CSR policies for moral, economic, and political reasons. While charitable donations made to exempt organizations are expressly deductible under section 170 of the Internal Revenue Code, the same might not be true for a given CSR expenditure. …
The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden
The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden
Journal of Law and Health
The fundamental focus of this Article is whether the decision not to buy individual health insurance as required by Congress also qualifies as valid economic activity under the Commerce Clause. This question before the Court continues the modern battle regarding the scope of Congress’s power under the Commerce Clause, and the battle regarding the regulation of economic activity continues, irrespective of the Supreme Court decision regarding PPACA, because of the continuing impact of the Supreme Court’s holding in United States v. Lopez. Part II of this Article contends that the decision not to purchase health insurance is not to be …
Can Compulsory Health Insurance Be Justified? An Examination Of Taiwan's National Health Insurance , Chuan-Feng Wu
Can Compulsory Health Insurance Be Justified? An Examination Of Taiwan's National Health Insurance , Chuan-Feng Wu
Journal of Law and Health
Since a great paradox lies beneath the universal health insurance mandate debate in both Taiwan and the U.S., Taiwan’s experience clarifying the constitutionality of its compulsory universal health insurance program might provide valuable lessons to the U.S. The goal of this Article is to provide a theoretical basis, based upon the human rights impact assessment in public health policies and a Rawlsian theory of justice, to decide whether the restriction on individual liberty imposed by Taiwan’s compulsory NHI is constitutionally justified. An analytic four-step assessment is established to evaluate the NHI’s burden on individual liberties: (1) examine the importance, legitimacy, …
Surrogacy And Insurance: The Call For Statutory Reform In Ohio, Sasha M. Swoveland
Surrogacy And Insurance: The Call For Statutory Reform In Ohio, Sasha M. Swoveland
Journal of Law and Health
This Note examines the practice of excluding maternity services for surrogate mothers under insurance plans that cover maternity services. This Note also introduces two different surrogate arrangements and illustrates the different familial situations that may necessitate the use of a surrogate. Part II defines surrogacy and offers a general overview of the surrogacy process. Part III demonstrates that surrogates need insurance for pregnancy related services. It also argues that the exclusion of coverage for surrogates is pregnancy discrimination. Part IV explains why current legal remedies are insufficient to make surrogates whole. Part V analyzes the state of surrogacy examining Ohio …
Pharmageddon: A Statutory Solution To Curb Ohio's Prescription Abuse Problem, Ed Woodworth
Pharmageddon: A Statutory Solution To Curb Ohio's Prescription Abuse Problem, Ed Woodworth
Journal of Law and Health
Prescription abuse in Ohio continues to be a serious and complex issue that should be addressed. Accordingly, Part II of this Note examines the background of prescription drug abuse generally. It identifies the dangers of prescription drug abuse, the cost drug abuse places on society, some reasons for prescription drug abuse, sources of prescription drugs, and discusses the current state and federal laws regarding prescription drug abuse and prescription reporting. Part III discusses the positive and negative aspects of H.B. 93 and Medical Rule 4731-11-11 and then offers proposals to more effectively prevent prescription drug abuse. Part IV discusses various …
Do You Know Where Your Dna Is? The Need For Dna Legislation In Ohio, Elizabeth Collins
Do You Know Where Your Dna Is? The Need For Dna Legislation In Ohio, Elizabeth Collins
Journal of Law and Health
This Note examines the several privacy and safety issues stemming from DNA theft. Part II discusses constitutional and common law regarding the abandonment of property, particularly under the Fourth Amendment, and explains how the Fourth Amendment does not protect individuals from DNA theft. Part III details the many consequences resulting from DNA theft. These risks, among countless others, include employment and insurance discrimination, family turmoil caused by paternity testing which is often inaccurate and conducted without consent, genetic stalking, security risks, and the unauthorized publication of personal medical information and ancestral information. Part IV examines DNA theft legislation adopted by …
Mapping Our Future: The Impact Of Gene Patents On Scientific Research And Health Care In The United States, Caitlin E. Lanning
Mapping Our Future: The Impact Of Gene Patents On Scientific Research And Health Care In The United States, Caitlin E. Lanning
Journal of Law and Health
In September, 2011, the Senate passed H.R. 1249, the Leahy-Smith America Invents Act (“AIA”), which President Barrack Obama signed into law on September 16th. The AIA is the largest transformation to U.S. patent law since 1952. While the new legislation implements numerous, positive changes to the U.S. patent system, it fails to address any of the concerns raised by gene patent critics over the past few decades. Gene patents should be categorized as patentable subject matter within the AIA, but under a separate patent category with specifically engineered regulations designed to promote scientific research and collaboration that will in turn …