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Articles 1 - 30 of 39
Full-Text Articles in Law
Post-Crisis Reconsideration Of Federal Court Reform , David R. Cleveland
Post-Crisis Reconsideration Of Federal Court Reform , David R. Cleveland
Cleveland State Law Review
While the language of crisis has diminished, the caseload volume problem continues to bedevil the federal appellate courts, and the altered process adopted describe, there are just too many cases to handle with current resources using the time-honored appellate process; there is no simple solution. The path of least resistance—sacrificing appellate standards—has proven workable and effective, and the more significant steps such as reducing appeals or increasing judicial resources have gone unadopted. Various studies and proposals of the federal court system have suggested other methods that could be used to address the problem, and these methods should be seriously considered …
Beyond The Target Market: Product Advertising And Rule 10b-5'S In Connection With Requirement , Thomas J. Maloney
Beyond The Target Market: Product Advertising And Rule 10b-5'S In Connection With Requirement , Thomas J. Maloney
Cleveland State Law Review
An investor purchases Apple common stock in reliance on representations in advertisements that the new iPad is capable of connecting to “ultrafast” 4G wireless networks. It turns out that the iPad is not compatible with the fastest wireless network in Australia or the 4G networks in Sweden and Germany. If the investor suffered a loss as a result, can the investor recover from Apple for securities fraud under Rule 10b-5 of the Securities Exchange Act of 1934? A number of possible impediments to recovery exist. One is Rule 10b-5’s limited scope. The Rule applies only to a fraud that is …
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 …
Masthead, Cleveland State Law Review
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 …
Interpreting Precise Constitutional Text: The Argument For A “New” Interpretation Of The Incompatibility Clause, The Removal & Disqualification Clause, And The Religious Test Clause—A Response To Professor Josh Chafetz’S Impeachment & Assassination, Seth Barrett Tillman
Cleveland State Law Review
In an article in another journal, Professor Josh Chafetz wrote: “[I]mpeachment maintains the link between removal and death, but attenuates it. . . . Impeachment is . . . a political death—a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning. But before doing so, I think it might be …
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 …
Legal Malpractice In A Changing Profession: The Role Of Contract Principles, Vincent R. Johnson
Legal Malpractice In A Changing Profession: The Role Of Contract Principles, Vincent R. Johnson
Cleveland State Law Review
In little more than four decades, the field of American legal ethics has been transformed from an unimportant backwater into a mighty river of legal principles that drives the practice of law in countless respects. Today, this complex matrix of substantive provisions and enforcement mechanisms ensures, to a great extent, that clients are protected from unnecessary harm, that lawyers are safeguarded from improper accusations, and that the provision of legal services is consistent with the public interest. However, the fabric of legal ethics is threatened by a looming transformation of the legal profession. That potential restructuring may revolutionize the delivery …
Striking A Balance: Why Ohio's Felony-Arrestee Dna Statute Is Unconstitutional And Ripe For Legistlative Action, Brendan Heil
Striking A Balance: Why Ohio's Felony-Arrestee Dna Statute Is Unconstitutional And Ripe For Legistlative Action, Brendan Heil
Cleveland State Law Review
This Note argues that Ohio’s felony-arrestee DNA statute violates Article I, section 14 of the Ohio Constitution and the Fourth Amendment to the United States Constitution. The initial physical swab and the subsequent database searches of an arrestee’s DNA sample, while the arrestee is in custody or being prosecuted, do not violate the Fourth Amendment. However, the inclusion of an innocent person’s DNA in Ohio’s DNA database, subject to repeated searches over time, violates both the Ohio and federal constitutional protections against unreasonable searches. Broadly written DNA statutes trample people’s civil rights, and more carefully drawn legislation could meet the …
E-Jurors: A View From The Bench, Hon. Antoinette Plogstedt
E-Jurors: A View From The Bench, Hon. Antoinette Plogstedt
Cleveland State Law Review
This Article provides a comparative analysis of foreign jury systems and reviews the history of juries. The Article then explores emerging technology and its effect upon electronic juror misconduct. It further identifies juror misconduct resulting from innovative technology. The Article assesses solutions initiated in various U.S. state and federal jurisdictions. The Article reviews the role of more active juries, which incorporate note taking and jury notebooks. The Article analyzes the process of juror questioning and pre-deliberation juror discussions. The Article evaluates initiatives developed in various jurisdictions to deter juror misconduct by confiscating cell phones and improving jury instructions. Finally, this …
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 …
Making The Fair Sentencing Act Retroactive: Just Think Of The Savings . . . Clause, Jeff Lazarus
Making The Fair Sentencing Act Retroactive: Just Think Of The Savings . . . Clause, Jeff Lazarus
Cleveland State Law Review
This article advocates for the retroactive application of the Fair Sentencing Act. Part II of this Article will detail the history of the federal crack cocaine sentencing laws, from 1986 through the passage of the Fair Sentencing Act. Part III will detail the recent cases dealing with attempts at retroactivity in the lower courts. Part IV outlines the Supreme Court’s holding in United States v. Dorsey, which was a ground-breaking step towards the FSA’s retroactive effect. Part V offers arguments in support of retroactivity. Part VI offers legal challenges in which inmates can seek relief in the courts. In Part …
Straightforward On Its Face But Mindbending In Its Application: Juror Concurrence In Criminal Trials, Stephen Ehrlich
Straightforward On Its Face But Mindbending In Its Application: Juror Concurrence In Criminal Trials, Stephen Ehrlich
Cleveland State Law Review
Ever since In re Winship in 1970, it is well settled that the Due Process Clause requires a jury to find “proof beyond a reasonable doubt of every fact necessary to constitute the crime.” But as axiomatic as this holding may seem, the distinction between necessary facts of a crime and “mere means” of its commission has confounded courts for years. The Supreme Court, recognizing the need to re-address such an important issue, attempted to provide some guidance in this area through two landmark cases decided just before the turn of the twenty first century: Schad v. Arizona and Richardson …
Copyright Notice, Cleveland State Law Review
Copyright Notice, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Gender Dysphoria In The Jailhouse: A Constitutional Right To Hormone Therapy?, Susan S. Bendlin
Gender Dysphoria In The Jailhouse: A Constitutional Right To Hormone Therapy?, Susan S. Bendlin
Cleveland State Law Review
United States Army Private Bradley Manning made headlines in the fall of 2013 when he was convicted of espionage, fraud, and theft for divulging classified military and diplomatic information to WikiLeaks. After the twenty-five year old was sentenced to thirty-five years in military prison, he made instantly made headlines again by announcing that he wanted to live as a woman in prison. Divulging that he has Gender Identity Disorder, Manning said that he had suffered for years in the wrong body and that he would henceforth be recognized as a female, Chelsea Manning. The Army, however, has stated that it …
Medicaid Expansion, The Patient Protection And Affordable Care Act, And The Supreme Court's Flawed Spending Clause Coercion Reasoning In National Federation Of Independent Business V. Sebelius, L. Darnell Weeden
Cleveland State Law Review
The issue to be addressed is whether the Patient Protection and Affordable Care Act’s (ACA or “Obamacare”) manifest goal of promoting the general welfare of the nation by encouraging states to expand their existing Medicaid plans is a coercive use of Congress’ power under the Spending Clause if the federal government permanently picks up at least 90 percent of the cost of the expansion. The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” To make certain that federal money given to the States is used …
Masthead, Cleveland State Law Review
Copyright Notice, Cleveland State Law Review
Copyright Notice, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Socioeconomic Bias In The Judiciary , Michele Benedetto Neitz
Socioeconomic Bias In The Judiciary , Michele Benedetto Neitz
Cleveland State Law Review
Judges hold a prestigious place in our judicial system, and they earn double the income of the average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This Article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the “unselfconscious cultural elitism” of judges.** This elitism can manifest as implicit socioeconomic bias. Despite the attention paid to income inequality, implicit bias research and judicial bias, no other scholar to date has fully examined the ramifications of implicit socioeconomic bias on the bench. The Article explains that socioeconomic bias …
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 …
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 …
What Is Animal Law?, Jerrold Tannenbaum
What Is Animal Law?, Jerrold Tannenbaum
Cleveland State Law Review
This Article considers a critically important issue facing the new field of animal law: how to define animal law itself. Two sharply different general approaches to defining the area currently vie for support. One defines animal law as committed to advocacy on behalf of animals, including, for many proponents of this approach, promotion of animal rights. The competing approach defines animal law in a purely descriptive manner, as (roughly) the area of law that relates to animals, whatever substantive principles regarding animals the law may adopt. The Article demonstrates that advocacy-oriented definitions violate fundamental standards of definition and conflict with …
Kicking Ohio Medicaid Recipients When They Are Down: How Ohio's Third Party Liability Medicaid Statute Violates Federal Law As Interpreted By Ahlborn, Kelly Voyles
Cleveland State Law Review
This Note argues that Ohio’s Medicaid third party liability statute must either be invalidated by the Ohio Supreme Court or repealed by the Ohio General Assembly. This Note then goes on to argue that the Ohio General Assembly must amend its Medicaid third party liability statute to require settlement allocation before ODJFS can recover the medical payments it made on behalf of Ohio Medicaid recipients. Finally, this Note argues that Ohio should also amend its Medicaid third party liability statute to require that the parties come to an allocation agreement themselves or, if that proves impossible, to require a judicial …
Masthead, Cleveland State Law Review
Not "Special" Enough For Chapter 7: An Analysis Of The Special Circumstances Provision Of The Bankruptcy Code, Roma Perez
Cleveland State Law Review
The “special circumstances” provision of the Bankruptcy Code, Section 707(b)(2)(B), allows a consumer debtor to rebut the presumption of abuse that is triggered when debtor fails the means test. Congress enacted the statute as a procedural safeguard fully aware that means testing, as set-out in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, could lead to arbitrary results for some debtors. For consumer debtors, the provision functions as a type of escape-hatch. It allows a debtor to avoid dismissal of his Chapter 7 bankruptcy case by introducing documentary evidence that the means test calculation, and its attendant income …
Table Of Contents, Cleveland State Law Review
Table Of Contents, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Solving A Pleading Plague: Why Federal Courts Should Strike Insufficient Affirmative Defenses Under The Twombly-Iqbal Plausibility Standard, Nathan A. Leber
Solving A Pleading Plague: Why Federal Courts Should Strike Insufficient Affirmative Defenses Under The Twombly-Iqbal Plausibility Standard, Nathan A. Leber
Cleveland State Law Review
The plausibility standard is the remedy to the rampant pleading of meritless affirmative defenses in federal courts. Set forth in Bell Atlantic Corp v. Twombly, and later clarified in Ashcroft v. Iqbal, the plausibility standard requires pleadings to contain sufficient factual allegations that give rise to a plausible claim for relief. In both Twombly and Iqbal, the Supreme Court used the plausibility approach to dismiss factually-deficient complaints. Applying the plausibility test to insufficient affirmative defenses produces the same result. The central proposition of this Note is that federal courts should analyze affirmative defenses under the Twombly-Iqbal plausibility standard. In order …