Law Commons^™

The Road To Respectability: A Woman Of Pleasure And Competing Conceptions Of The First Amendment, Harriet L. Turney

University of Dayton Law Review

Whenever the United States Supreme Court announces a constitutional decision that rejects a previously established interpretation, the critics and scholars draw lines, choose sides, and attempt to reconcile or show how the decision cannot be reconciled with the previous interpretation. Where the line is drawn or which side is chosen hinges upon the constitutional theory embraced and advocated by the critic. Those critics who adhere to a strict interpretational theory often attack the more recent decision as being unfaithful to the framers' intent or the strict letter of the written constitution. Other critics, who do not agree that framers' intent …

The Hyde Amendment: An Analysis Of Its State Progeny, Joan Meyerhoefer Roddy

University of Dayton Law Review

In the landmark case of Roe v. Wade, the Supreme Court held that the constitutional right to privacy included a woman’s decision on whether to terminate her pregnancy. The right to terminate the pregnancy, however, was not absolute, and had to be weighed, at various stages of the pregnancy, against the state’s “important and legitimate interest in preserving and protecting the health of the pregnant woman … [and] in protecting the potentiality of human life.” Justice Blackmun, at the outset of his majority opinion, acknowledged the Court’s “awareness of the sensitive and emotional nature of the abortion controversy, and of …

Application Of The Exlusionary Rule To Criminal Tax Fraud Investigations, Crofford J. Macklin Jr.

University of Dayton Law Review

In investigating criminal tax fraud matters, the Internal Revenue Service (I.R.S.) has operated under certain informal customs and practices to obtain taxpayers' records from financial institutions and other third-party recordkeepers. These informal customs and practices often violate information-gathering procedures required by the Internal Revenue Code of 1954 (I.R.C.) and the Treasury Regulations. Therefore, taxpayers whose records have been obtained in violation of the I.R.C. and regulations may seek to suppress such evidence under the exclusionary rule3 by claiming violations of due process4 and the fundamental right of privacy. The focus of this article will be on the following three areas: …

Analyses Of Selected 1979 Ohio Legislation, University Of Dayton

University of Dayton Law Review

This section of notes on selected Ohio legislation continues the practice, begun in Volume 4 of the University of Dayton Law Review, of providing brief analyses of certain recent enactments by the Ohio General Assembly. The number of bills analysed in this issue has been significantly increased from the preceding year, and the range of affected areas of law addressed by the analyses has been significantly broadened.

Each note summarizes the state of the law prior to the effective date of the legislation considered, and focuses on the intended or anticipated impact of the new statute. Many of the notes …

H.B. 156: Achieving Uniform Utility Rate Schedules For Municipalities, Douglas A. Smoot

University of Dayton Law Review

Public utility rates have increased in Ohio significantly in the past five years. Utility rate increase applications escalated 1,540 percent in 1975 alone when seventy-seven rate increase requests were filed with the Public Utilities Commission of Ohio (PUCO). On January 20, 1979, Consumer Counsel William A. Spratley, from the office of the Consumers’ Counsel of Ohio, expressed concern over the massive utility rate increases. Spratley notified Alfred E. Kahn, Chairman of the Council on Wage and Price Stability, and complained that PUCO was not holding Ohio utilities to the 9.5 percent annual maximum price increase recommended by the Council to …

H.B. 600: Ohio's Bill Of Rights For Nursing Home Patients, Nancy Mosmeier Phillips

University of Dayton Law Review

Nursing home residents are among the most helpless individuals in our society; their dependence on institutions for food, shelter, and personal care has cost them control over their own lives. “Because of the vulnerability of the aged population of the nursing home and the fact that most of them will reside in these homes for the rest of their lives, society bears a special obligation to ensure that the quality of their care is satisfactory and their treatment humane.” Ohio has responded to this obligation by enacting H.B. 600, which is directed at improving the care of Ohio nursing home …

H.B. 565: Criminal Procedures Affecting The Mentally Ill Offender, Thomas J. Troetti

University of Dayton Law Review

In criminal prosecutions, a defendant may be involuntarily committed to a mental hospital through either of two generally accepted procedures. The most prevalent of these is the involuntary commitment of a criminal defendant who, before being fully tried, is preliminarily adjudged incompetent to stand trial. Greater notoriety, however, has been gained by commitment procedures initiated through the defense of insanity. Successful establishment of an insanity defense will provide for the acquittal and subsequent commitment of a defendant by reason of his mental condition at the time of the criminal act. Thus, the removal of a mentally ill defendant from the …

H.B. 248: Service To Persons Outside Of Ohio In Divorce, Annulment, And Alimony Actions, Stephen A. Watring

University of Dayton Law Review

House Bill 248 amended Ohio Revised Code section 3105.06 to permit service by publication in a divorce, annulment, or alimony action where the defendant “is not a resident of this state or is a resident of this state but absent from the state.” Under previous law there was no authorization, either in the Ohio Revised Code or the Ohio Rules of Civil Procedure, to allow such service. Furthermore, there was no expressed authorization for any kind of service on such defendants in divorce and annulment actions. The Family Law Committee of the Ohio State Bar Association recommended that section 3105.06 …

Rico And The Courts: An "Enterprising" Attempt To Reach Racketeering Activites, Gale S. Finley

University of Dayton Law Review

Nearly ten years ago Congress enacted the controversial Organized Crime Control Act of 1970. Its purpose was the “eradication of organized crime in the United States.” The proponents of the statute asserted that strong measures were necessary to battle a force which had “penetrated into the very roots of American life and society” resulting in a “stranglehold of our citizens.” Although the opponents generally favored such legislation, many, like the American Civil Liberties Union, believed that the Act went beyond the goal of destroying the power of organized crime and made “drastic incursions on the civil liberties of everyone.” The …

Products Liability: Imposing Strict Products Liability On The Trademark Licensor, Mark Stanley Silverberg

University of Dayton Law Review

Connelly v. Uniroyal, Inc., 75 ill. 2d 393, 389 N.E.2d 155 (1979).

The recent case of Connelly v. Uniroyal, Inc. presents an interesting combination of two separate areas of the law: trademark and strict products liability. These two areas, while differing in the scope of protection offered, have evolved from one basic policy, that is, a deep concern for the welfare of the purchasing public. The former protects the consumer economically by theoretically assuring that the purchaser will, in fact, be buying what he intends to buy. The latter protects the consumer by holding a manufacturer strictly liable for injuries …

H.B. 835: Ohio's Response To The Domestic Violence Dilemma, Mark R. Chilson

University of Dayton Law Review

Domestic violence is most often manifested by repeated, deliberate and severe beatings of family or household members. Victims frequently suffer broken bones, concussions, miscarriages or other physical injuries. The abused family or household members are also subjected to serious psychological and emotional injuries. Even though domestic violence impacts most clearly upon the victims, the assailants, too, are not without injury, often suffering from some type of mental illness, alcohol or drug abuse problem. The traditional view is that domestic violence does not exist, or if it exists, it must be dealt with privately. Today this view inappropriately deals with the …

H.B. 674: Ohio Opts Outs Of The Federal Bankruptcy Exemptions And Revises Its Exemption Laws, Gregory Keith Todd

University of Dayton Law Review

After a creditor has obtained a judgment against a debtor, the creditor must normally initiate some action in order to receive money, or goods to satisfy the claim. States generally recognize that certain items belonging to the debtor are not available to the creditor for the satisfaction of the judgment. Generally referred to as exemption statutes, these provisions bring into focus the legislature's concern for balancing the right of a creditor to have what he deserves against the debtor's need to maintain a subsistence level in society.

In order to effectuate this balance, several purposes for exemption statutes have been …

Front Matter, Volume 5, Number 2 (1980)

University of Dayton Law Review

Table of contents for Volume 5, Number 2

Home Monitoring And Sudden Infant Death Syndrome: The Legal Implications, Donald Eugene Theis

University of Dayton Law Review

Sudden Infant Death Syndrome (SIDS) is a leading cause of death in infants. … SIDS has drawn political attention, as evidenced by Congress’ enactment of the Sudden Infant Death Syndrome Act of 1974. Although intensive medical research has been going on for some time, the prevention of or cure for SIDS remains a mystery. One obstacle hampering a medical breakthrough in the area is the absence of a determination of the cause of SIDS. The consensus definition given to SIDS is illustrative of the difficulty medical science is facing in trying to solve this disease entity. The current definition for …

A Synopsis Of The 1979 Amendments To The Federal Rules Of Criminal Procedure, William C. Becker Jr., Richard A. Sheils Jr.

University of Dayton Law Review

On April 30, 1979, the Supreme Court of the United States ordered the amendment of the Federal Rules of Criminal Procedure. The modifications ordered by the Court promise to bring about significant changes in the Rules, clarify ambiguous sections, eliminate confusion in application, and bring the Rules into conformity with recent case law.

The process of amending the Federal Rules of Criminal Procedure began with the Advisory Committee on Criminal Rules of the Judicial Conference of the United States. The Advisory Committee was responsible for drafting the text of the proposed amendments and submitting explanatory comments. The proposed changes and …

H.B. 1168: The Burden Of Proving An Affirmative Defense, Randall J. Kay

University of Dayton Law Review

The burden of proof for an affirmative defense in a criminal prosecution was recently revised by H.B. 1168. The new statute provides that: “Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.”

The purpose of H.B. 1168 was to place the burden of proving an affirmative defense …

H.B. 154: Ohio Creates Renewable Energy Resource Tax Incentives And Solar Access Easements, Scott Edward Miller

University of Dayton Law Review

Until 1973 the United States enjoyed declining real energy prices coupled with continued economic growth and increased energy consumption. Escalating energy costs due to foreign price increases and greater energy consumption have put this country in a perilous position. Growing reliance on foreign energy sources and the realization that our primary energy sources-petroleum, natural gas, and coal-are nonrenewable accentuate the energy problem. This energy dilemma has stirred the federal government and the states to varied reactions.

Conservation and the renewable energy sources-solar, wind, and geothermal are the focus for much of this governmental activity. Although renewable energy sources are promising, …

H.B. 347: Ohio Combines Civil Rights Law With Real Estate Licensee Disciplinary Actions And Continuing Education, Cheryl Wright Snyder

University of Dayton Law Review

The source of authority for the reasonable regulation of licensing activities that affect public health, welfare, and safety is the state police power. A primary purpose behind state regulation in licensing is the protection of the public from incompetence.

In order to understand the application of H. B. 347 to Ohio's real estate licensing law, it is necessary to conceptualize the basic organization of authorities overseeing real estate licensing activities. The Division of Real Estate of the State of Ohio Department of Commerce administers the real estate licensing law. This administrative agency will be referred to throughout this note as …

Front Matter, Volume 5, Number 1 (1980), University Of Dayton

University of Dayton Law Review

Title page and table of contents, Volume 5, Number 1

Multinational Corporations And Lesser Developed Countries — Foreign Investment, Transfer Of Technology, And The Paris Convention: Caveat Investor, Warren Landau

University of Dayton Law Review

In recent years, the growth of multinational corporations (MNCs), has been a source of increasing concern in the international community. In an effort to achieve economic independence from these major suppliers of technology, many lesser developed countries (LDCs) have enacted stringent investment and transfer of technology codes. The proliferation of such types of regulation has become a thorn in the relations between developed and underdeveloped nations. These codes and laws have been enacted, however, to rectify perceived inequities and abuses fostered by MNCs. The transfer of necessary knowledge and technology to LDCs has been accompanied by a multitude of restrictions …

Regulating Laetrile: Constitutional And Statutory Implications, Vicki R. Patton-Hulce

University of Dayton Law Review

Since Ernst T. Krebs Sr. and Jr. claimed to have discovered it as a cure for cancer, laetrile has had an unsettled status. Under the Federal Food, Drug, and Cosmetic Act, drugs which are “new drugs” are regulated by the Food and Drug Administration (FDA). Difficulties concerning laetrile stem from the fact that it has been classified as a “new drug” by the FDA. To understand the problem in context, it is important to look at the history of the governing statutes. In 1906, Congress passed the Food and Drug Act. The Act required primarily that drugs be properly labelled …

School Desegregation And Federalism: The Court Inside The Schoolhouse Door, G. Michael Kirkman

University of Dayton Law Review

Alexander Hamilton characterized the federal judiciary as having “no influence over either the sword or the purse; no direction either of the strength or wealth of society.” In the years since the landmark decision in Brown v. Board of Education, however, federal courts have taken an increasingly active role in controlling the use of resources in school districts where de jure segregation has been found to exist. In examining facts which are more legislative than adjudicative in nature, the courts have often shaped relief which intervenes in the functions of an elected body of officials, in some cases involving the …

Criminal Procedure: The Outer Limits Of The Indegent's Right To Appointed Counsel, Stephen A. Watring

University of Dayton Law Review

Scott v. Illinois, 440 U.S. 367 (1979).

Over the past forty-seven years, the sixth amendment right to counsel, as applied to the states through the fourteenth amendment, has undergone almost constant expansion. In 1932 the evolution began in Powell v. Alabama, when the Supreme Court held that, in capital cases: (a) the sixth amendment right to counsel is of a fundamental nature, and applicable to the states through the due process clause of the fourteenth amendment; and (b) the state must provide counsel for indigent defendants. Ten years later, in Betts v. Brady, the Court refused to extend the right …

Securities Law: The Exclusion Of Noncontributory, Compulsory Pension Plans, Joan Meyerhoefer Roddy

University of Dayton Law Review

International Brotherhood of Teamsters v. Daniel, 439 U.S. 551 (1979).

Recent Supreme Court decisions have illustrated a trend toward a more restrictive approach to actions brought pursuant to section 10(b)2 and rule l0b-53 of the Securities Exchange Act of 1934. International Brotherhood of Teamsters v. Daniel, in which the Supreme Court rejected an expansive reading of the securities laws, is the most recent case exemplifying this trend. The Court in Daniel refused to accept the Seventh Circuit’s determination that a noncontributory, compulsory pension plan was a "security" within the definition set forth in section 3(a)(10) of the 1934 Act.

Lawyers, Law And Civilization, Elliot Richardson

University of Dayton Law Review

This school is already, largely as a result of its recent accomplishments, an important center for the training of men and women who, in the words spoken at the commencements of my own alma mater, will have a part in administering "the wise restraints that make men free."

A distinguished lawyer and diplomat, better known as the father of George Plimpton, once observed that the history of civilization is the history of millions of solved conflicts. This, of course, is another way of saying that the history of civilization is the history of the contributions of thousands of smart lawyers. …

Securities Law: The Scienter Requirement In An Sec Enforcement Action — Should Equity Control?, Scott Edward Miller

University of Dayton Law Review

SEC v. Aaron, 605 F.2d 612 (2d Cir.), cert. granted, 48 U.S.L.W. 3258 (1979) (No. 79-66).

It has been nearly five decades since the havoc of the Depression caused Congress to enact the Securities Act of 1933 and the Securities Exchange Act of 1934. In this time it has become clear that the federal courts have yet to uniformly settle the question of what constitutes a proper cause of action under the antifraud provisions of these Acts. A related problem is whether the elements in a proper cause of action should differ in an action brought by the Securities and …

Antitrust Comes To The Cities - Analysis Of City Of Lafayette V. Louisiana Power & (And) Light Co. And Its Effect On Municipal Antitrust Liability, Daniel J. Curtin Jr.

University of Dayton Law Review

On March 29, 1978, the United States Supreme Court ruled, in City of Lafayette v. Louisiana Power & Light Co., that cities could not claim a "state action" exemption from the federal antitrust laws, absent "evidence that the state authorized or directed a given municipality to act as it did." The Court rejected the argument of the cities of Lafayette and Plaquemine, Louisiana, that the 1943 Supreme Court decision of Parker v. Brown, which established an antitrust immunity for states and state mandated activities, applied with equal force to political subdivisions of a state. Rather, the Court concluded "that the …

Application Of The Rule Against Perpetuities To Powers Of Appointment: Ohio Style, C. Terry Johnson, Frank B. Williams Iii

University of Dayton Law Review

Of all the instruments available to a donor wishing to transfer property, none has the versatility of the power of appointment. The transfer of legal title to property combined with the creation of a power of appointment rids the donor of ownership of the property and provides the donee of the power with the flexibility to apportion the property in accordance with future needs and events arising long after the time of such transfer. This flexibility is often unavailable even in a carefully drafted trust which does not contain powers of appointment. A trustee with power to invade principal or …

Title Vii Of The Civil Rights Act Of 1964—An Unconstitutional Attempt To Establish Religion, Ronald W. Eades

University of Dayton Law Review

In 1964, the Congress of the United States took a bold step toward erasing discrimination in an important area. Title VII of the Civil Rights Act of 1964 sought to end employment discrimination and provide equal opportunity in the job market. Without this statute, unprotected minorities and women could not expect to become full participants in the economic society of the United States. The purpose of this legislation was admirable, but the legislation was flawed in one respect. In an attempt to solve various ills with one statute, Congress violated the first amendment of the Constitution. The prohibition of discrimination …

Offensive Collateral Estoppel: Reconciling The Jury Trial Right And Judicial Convenience, Douglas A. Smoot

University of Dayton Law Review

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979).

The interplay of collateral estoppel and the right to a jury trial involves a clash between judicial convenience and constitutional rights. Collateral estoppel has long been an effective tool in guarding against inconsistent rulings and in eliminating expensive and useless litigation. The clash between judicial convenience and the right to a jury trial occurs when a party attempts to use collateral estoppel to prevent litigation of a particular issue although the opposing party has not had an opportunity to try that issue before a jury. The underlying question is whether …