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Beyond The Horizons Of The Harvard Forewords, Or Bassok Nov 2021

Beyond The Horizons Of The Harvard Forewords, Or Bassok

Cleveland State Law Review

American constitutional thought is controlled by certain paradigms that limit the ability to think beyond them. A careful reading of the Harvard Law Review Forewords—the “tribal campfire” of American constitutional thinkers—is one way to detect these paradigms. Based on reading these Forewords since their inception in 1951 and until 2019, I track how the concept of judicial legitimacy has been understood over the years. My analysis shows that in recent decades an understanding of judicial legitimacy in terms of public support has risen to the status of a controlling paradigm. While this understanding is currently considered commonsensical, it ...


Re-Imprisonment Without A Jury Trial: Supervised Release And The Problem Of Second-Class Status, Stephen A. Simon Apr 2021

Re-Imprisonment Without A Jury Trial: Supervised Release And The Problem Of Second-Class Status, Stephen A. Simon

Cleveland State Law Review

The Supreme Court’s 2019 decision in United States v. Haymond shone a light on a practice that has not yet received attention commensurate with its significance: the re-imprisonment of individuals on supervised release without a jury trial. At first blush, the decision is most notable for setting bounds on the government’s ability to re-imprison individuals on supervised release without observing the constitutional rights normally available to defendants in criminal prosecutions. However, examination of the opinions reveals that the decision’s immediate doctrinal impact was quite limited. Moreover, although the three opinions issued in the case reflected disagreements among ...


Are Federal Exonerees Paid?: Lessons For The Drafting And Interpretation Of Wrongful Conviction Compensation Statutes, Jeffrey S. Gutman Mar 2021

Are Federal Exonerees Paid?: Lessons For The Drafting And Interpretation Of Wrongful Conviction Compensation Statutes, Jeffrey S. Gutman

Cleveland State Law Review

In this third of a series of articles on wrongful conviction compensation statutes, Professor Jeffrey Gutman tackles the first statute attempted to be passed in the United States – the federal wrongful conviction compensation statute. Championed in concept by Edwin Borchard, it was in fact poorly drafted, and recommendations by Attorney General Homer Cummings to improve it were only partly successful. This Article retraces the long legislative history of the statute which is dotted with sloppy language and reasoning, unexplained amendments and an unfortunate focus on who was not to benefit from it, rather than who was. This tangled legislative history ...


Corporations "Pac" A Punch: Corporate Involvement's Influence In Elections And A Proposal For Public Campaign Financing In Ohio, Taylor Hagen Mar 2021

Corporations "Pac" A Punch: Corporate Involvement's Influence In Elections And A Proposal For Public Campaign Financing In Ohio, Taylor Hagen

Cleveland State Law Review

In 2010, the United States Supreme Court in a 5-4 decision ruled that limiting corporate spending in elections violates the First Amendment right to free speech. With this decision, the Supreme Court overturned election spending restrictions that dated back more than a century. Before Citizens United v. FEC was decided, the Court had previously held that these restrictions were permissible because there is a governmental interest in preventing election and campaign corruption. Now, corporations may expend unlimited funds for outside election spending, to super PACs, and may even establish their own PACs. Increased corporate involvement in elections has deteriorated American ...


Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen Jun 2020

Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen

Cleveland State Law Review

Currently, the federal circuit courts split on whether public employers can discipline their employees for legal, off-duty sexual activity. The Fifth and Tenth Circuits permit discipline in these scenarios; the Ninth Circuit does not. At issue is whether certain public employees, like police officers, should be held to a higher standard because of their duty to the public or whether the Constitution entitles them to privacy rights that shield them from discipline. This Note concludes the latter and argues against punishing the legal, off-duty sexual conduct of all public employees. Because the right to sexual privacy already exists within the ...


Failing To Keep The Cat In The Bag: A Decennial Assessment Of Federal Rule Of Evidence 502'S Impact On Forfeiture Of Legal Privilege Under Customary Waiver Doctrine, Jared S. Sunshine Jun 2020

Failing To Keep The Cat In The Bag: A Decennial Assessment Of Federal Rule Of Evidence 502'S Impact On Forfeiture Of Legal Privilege Under Customary Waiver Doctrine, Jared S. Sunshine

Cleveland State Law Review

Federal Rule of Evidence 502—providing certain exemptions from the surrender of attorney-client and work product privilege because a confidential item was disclosed—had great expectations to live up to after its enactment in 2008, as Congress and others heralded it as a panacea to litigation’s woes in the face of bourgeoning discovery. The enacted rule was the subject of much skepticism by the academic punditocracy, however. Ten years later, this Article surveys the actual results and finds that, regrettably, pessimism has proven the better prediction. Percolation of debate over the rule’s many ambiguities and courts’ disparate approaches ...


Land Of The Free, If You Can Afford It: Reforming Mayor's Courts In Ohio, Lucia Lopez-Hisijos Apr 2020

Land Of The Free, If You Can Afford It: Reforming Mayor's Courts In Ohio, Lucia Lopez-Hisijos

Cleveland State Law Review

Unlike most states in America, Ohio has a unique system of punishing minor misdemeanors and ordinance violations through municipal institutions called mayor’s courts. In 2017, Ohio had 295 of these courts, and they heard nearly 300,000 cases. But these are not normal courts. Ohio’s mayor’s courts do not conduct ability to pay hearings and can jail defendants who fail to pay court fines. With the author’s original research into Ohio’s mayor’s courts, this Note argues that these institutions can function like modern-day debtor’s prisons and violate indigent defendants’ constitutional right to Due ...


The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?", Christian Ketter Apr 2020

The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?", Christian Ketter

Cleveland State Law Review

As America’s media and politicians continue to debate the free speech rights of NFL players, schoolchildren, and entertainers, the dialogue has confused many Americans as to what exactly the First Amendment protects. Chief Justice John G. Roberts ultimately assumes the role of an umpire in many of these issues, guiding the United States Supreme Court to incrementally “call balls and strikes.” In recent years, the Court has umpired employment rights and state action cases, and Roberts’s calls will likely further distance the Court that decided Morse v. Frederick from the one that decided Tinker v. Des Moines. Amid ...


Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon Apr 2020

Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon

Cleveland State Law Review

The Supreme Court, in Bucklew v. Precythe, provided an originalist interpretation of the term “unusual” in the Eighth Amendment of the United States Constitution. This originalist interpretation asserted that the word “unusual” proscribes punishments that have “long fallen out of use.” To support its interpretation, the Supreme Court cited John Stinneford’s well-known law review article The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation. This Article, as Bucklew did, accepts Stinneford’s interpretation of the word “unusual” as correct. Under Stinneford’s interpretation, the term “unusual” is a legal term of art derived from ...


An Open Letter To The Ohio Supreme Court: Setting A Uniform Standard On Anders Briefs, Matthew D. Fazekas Apr 2020

An Open Letter To The Ohio Supreme Court: Setting A Uniform Standard On Anders Briefs, Matthew D. Fazekas

Cleveland State Law Review

Attorneys are faced with an ethical dilemma when they represent indigent defendants who wish to appeal a criminal sentence, but that appeal would be frivolous. In 1967, the United States Supreme Court, in Anders v. California, introduced a procedure protecting the rights of indigent defendants that balanced the ethical concerns of an attorney forced to file a frivolous appeal. In 2000, the Court in Smith v. Robbins held that the states can set their own procedure for the aforementioned ethical dilemma, so long as it protects the rights of indigent defendants in compliance with the Fourteenth Amendment. This has led ...


A Call To Clarify The "Scope Of Authority" Question Of Qualified Immunity, Pat Fackrell Nov 2019

A Call To Clarify The "Scope Of Authority" Question Of Qualified Immunity, Pat Fackrell

Cleveland State Law Review

It is no secret the doctrine of qualified immunity is under immense scrutiny. Distinguished jurists and scholars at all levels have criticized the doctrine of qualified immunity, some calling for it to be reconsidered or overruled entirely.

Amidst this scrutiny lies uncertainty in the doctrine’s application. Specifically, the federal courts of appeal are split three ways on the question of whether an official exceeding the official’s scope of authority under state law at the time of the alleged constitutional violation can successfully assert qualified immunity. Some courts of appeal do not require the official to demonstrate he acted ...


Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D.A. Jeremy Telman May 2019

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D.A. Jeremy Telman

Cleveland State Law Review

This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.

Chisholm, the pre-Marshall Court’s most important constitutional ...


The Twenty-Fifth Amendment: Incapacity And Ability To Discharge The Powers And Duties Of Office?, Lawrence J. Trautman May 2019

The Twenty-Fifth Amendment: Incapacity And Ability To Discharge The Powers And Duties Of Office?, Lawrence J. Trautman

Cleveland State Law Review

History provides many instances of U.S. presidential or vice presidential incapacity. It was the death of President John F. Kennedy that prompted the 25th Amendment to the Constitution to gain ratification in 1967, in part to establish a method to fill the vice presidency if it became vacant. On Saturday morning September 22, 2018, readers of The New York Times awoke to read a page-one story about how the Deputy Attorney General Rod J. Rosenstein had previously advocated the secret White House recording of President Trump “to expose the chaos consuming the administration, and he discussed recruiting cabinet members ...


Clear As Mud: Constitutional Concerns With Clear Affirmative Consent, C. Ashley Saferight May 2019

Clear As Mud: Constitutional Concerns With Clear Affirmative Consent, C. Ashley Saferight

Cleveland State Law Review

Rape and sexual assault laws and policies have shifted significantly in recent years, including the introduction of affirmative consent. Unfortunately, both proponents and critics tend to confuse the issues and falsely equate affirmative consent as a substantive social standard versus a procedural standard for adjudication and punishment. Although affirmative consent generally does not represent a significant change in consent law in the United States, statutes and policies requiring a further requirement that affirmative consent be clear and unambiguous (“clear affirmative consent”) are problematic and raise constitutional concerns. When clear affirmative consent policies are used as an adjudicative standard, they increase ...


The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles Apr 2019

The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles

Cleveland State Law Review

This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical ...


Municipal Minimum Wage Ordinances In Ohio: A Home Rule Analysis, Paul J. Lysobey Jan 2019

Municipal Minimum Wage Ordinances In Ohio: A Home Rule Analysis, Paul J. Lysobey

Cleveland State Law Review

In 2016, a grassroots proposal in Cleveland, Ohio sought to raise the minimum wage in the City of Cleveland to fifteen dollars per hour. But before Cleveland residents could vote on the proposal, the Ohio legislature enacted Senate Bill 331, prohibiting Ohio municipalities from setting their own minimum wage rates. However, the Ohio Home Rule Amendment gives municipalities the right to self-governance in certain instances, and there is question as to whether the Ohio legislature’s action is a violation of the right to home rule for Ohio cities. This Note evaluates the constitutionality of Senate Bill 331’s minimum ...


Home Rule In Ohio: General Laws, Conflicts, And The Failure Of The Courts To Protect The Ohio Constitution, Matthew Mahoney Jan 2019

Home Rule In Ohio: General Laws, Conflicts, And The Failure Of The Courts To Protect The Ohio Constitution, Matthew Mahoney

Cleveland State Law Review

The Home Rule Amendment to Ohio’s Constitution vest with municipalities the power to legislate on issues of most concern to that locality. Ideally, the concept of home rule creates shared powers between the state and the municipality. However, in Ohio, such is not the case. Instead, the state has almost complete control despite the home rule constitutional amendment. Although home rule is complicated historically and practically with many working parts between the legislature and the municipality, what is clear is that the courts play a substantial role in the doctrine’s application. The court’s role is difficulty considering ...


Forgotten Cases: Worthen V. Thomas, David F. Forte May 2018

Forgotten Cases: Worthen V. Thomas, David F. Forte

Cleveland State Law Review

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only after ...


The Privileges And Immunities Of Non-Citizens, R. George Wright May 2018

The Privileges And Immunities Of Non-Citizens, R. George Wright

Cleveland State Law Review

However paradoxically, in some practically important contexts, non-citizens of all sorts can rightly claim what amount to privileges and immunities of citizens. This follows from a careful and entirely plausible understanding of the inherently relational, inescapably social, and essentially reciprocal nature of at least some typical privileges and immunities.

This Article contends that the relationship between constitutional privileges and immunities and citizenship is more nuanced, and much more interesting, than usually recognized. Crucially, allowing some non-citizens to invoke the privileges and immunities of citizens often makes sense. The intuitive sense that non-citizens cannot logically claim the privileges or immunities of ...


Tipped Scales: A Look At The Ever-Growing Imbalance Of Power Protecting Religiously Motivated Conduct, Why That's Bad, And How To Stop It, Jeff Nelson May 2018

Tipped Scales: A Look At The Ever-Growing Imbalance Of Power Protecting Religiously Motivated Conduct, Why That's Bad, And How To Stop It, Jeff Nelson

Cleveland State Law Review

This Note examines the current state of the law that seemingly allows individuals to harm and discriminate against others on the basis of their protected religious beliefs. This Note also explores how such a result has been made possible and how it may be stymied by judicial and legislative action. Section II discusses a short history of the First Amendment’s Free Exercise Clause leading up to Religious Freedom Restoration Acts, and also includes an examination of both the real and possible harmful effects of RFRAs, current reactions to the application of these laws domestically, and interesting parallels internationally. Section ...


Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr. Dec 2017

Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr.

Cleveland State Law Review

A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.”

Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring ...


Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira Dec 2017

Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira

Cleveland State Law Review

Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against ...


Mad Men And Dead Men: Justification For Regulation Of Computer-Generated Images Of Deceased Celebrity Endorsers, Kerry Barrett Jul 2017

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

Cleveland State Law Review

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


Liberal Originalism: The Declaration Of Independence And Constitutional Interpretation - Symposium: History And Meaning Of The Constitution, Scott D. Gerber Jan 2014

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

Cleveland State Law Review

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


History In Law, Mythmaking, And Constitutional Legitimacy - Symposium: History And Meaning Of The Constitution, Patrick J. Charles Jan 2014

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

Cleveland State Law Review

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


Book Review: Court-Packing And Legal Creation - Symposium: History And Meaning Of The Constitution, Sheldon Gelman Jan 2014

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

Cleveland State Law Review

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


Originalism's Promise, And Its Limits - Symposium: History And Meaning Of The Constitution, Lee J. Strang Jan 2014

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

Cleveland State Law Review

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


Supplemental Pay Or Supplemental Power?: Why The Ohio General Assembly's Compensation Structure Unconstitutionally Centralizes Power In The General Assembly Leadership, Frank Camardo Jan 2014

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

Cleveland State Law Review

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


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 Jan 2013

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 helpful to ...


Striking A Balance: Why Ohio's Felony-Arrestee Dna Statute Is Unconstitutional And Ripe For Legistlative Action, Brendan Heil Jan 2013

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 ...