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Articles 1 - 30 of 91
Full-Text Articles in Law
The New Dread, Part Ii: The Judicial Overthrow Of The Reasonableness Standard In Police Shooting, Kindaka J. Sanders
The New Dread, Part Ii: The Judicial Overthrow Of The Reasonableness Standard In Police Shooting, Kindaka J. Sanders
Cleveland State Law Review
This Article series argues that the Supreme Court’s jurisprudence on excessive force from Graham v. Connor to the present has undermined the objectivity of the reasonableness standard. In its place, the Court has erected a standard that reflects modern conservative political ideology, including race conservatism, law and order, increased police discretion, and the deconstruction of the Warren Court’s expansion of civil rights and civil liberties. Indeed, the Court, dominated by law-and-order conservatives, is one of the greatest triumphs of conservatism. Modern conservatism developed as a backlash against various social movements like the Civil Rights Movement and spontaneous urban rebellions during …
Liberating Legal Aid: Reducing Covid-19'S Justice Gap And Promoting Health By Removing The Legal Services Corporation's Class Action And Advocacy Restrictions, Molly C. Schmidt
Liberating Legal Aid: Reducing Covid-19'S Justice Gap And Promoting Health By Removing The Legal Services Corporation's Class Action And Advocacy Restrictions, Molly C. Schmidt
Cleveland State Law Review
The Legal Services Corporation (LSC) is the single-largest funder of civil legal services, or legal aid, in the United States. The COVID-19 pandemic underscored a longstanding and growing problem faced by ow-income Americans served by LSC-funded legal aid organizations: the growing "justice gap." The justice gap represents the unmet civil legal needs of low-income Americans. The justice gap perpetuates poverty, conceals health-harming legal problems, and furthers racial disparities. Despite the LSC’s essential role in reducing the justice gap and promoting “equal access to justice,” Congress consistently underfunded the LSC before and during COVID-19. Congress has also prohibited the LSC-funded legal …
The Future Of The Americans With Disabilities Act: Website Accessibility Litigation After Covid-19, Randy Pavlicko
The Future Of The Americans With Disabilities Act: Website Accessibility Litigation After Covid-19, Randy Pavlicko
Cleveland State Law Review
The Americans with Disabilities Act (ADA) was enacted in 1990 to eliminate discrimination against individuals with disabilities. Over time, as society has become more reliant on the internet, the issue of whether the ADA’s scope extends beyond physical places to online technology has emerged. A circuit split developed on this issue, and courts have discussed three interpretations of the ADA’s scope: (1) the ADA applies to physical places only; (2) the ADA applies to a website or mobile app that has a sufficient nexus to a physical place; or (3) the ADA broadly applies beyond physical places to online technology. …
Employer Liability For Sex Harassment Through The Lens Of Restorative Justice, Emily Rees
Employer Liability For Sex Harassment Through The Lens Of Restorative Justice, Emily Rees
Cleveland State Law Review
Title VII cases alleging sex harassment have become almost completely deferential to employers who have anti-harassment policies. In this Note, I discuss legal and sociological influences on this development and propose using restorative justice focused mediation to avoid rendering Title VII entirely ineffective. Mediation should only be compelled as a remedy—after a court finds that harassment occurred, but that the plaintiff cannot prove her employer knew about the harassment. Instead of dismissing these cases—where judges have already found illegal discrimination—some corrective action should be imposed on the employer for its failure to maintain a harassment-free workplace. Focusing mediation on principles …
The Shifting Sands Of Cost Shifting, Andrew M. Pardieck
The Shifting Sands Of Cost Shifting, Andrew M. Pardieck
Cleveland State Law Review
The cost-shifting analysis employed by the federal courts in ruling on discovery disputes is flawed. There is tremendous variability in how courts interpret the factors guiding the analysis. There is tremendous variability in the information courts rely on in deciding whether to preclude the discovery or shift its costs. The result is waste for the litigants, courts, and society as a whole. This Article argues that there is a better way: mandate cooperation before cost shifting. The courts should condition proportionality and cost-shifting rulings on cooperation. The cooperation should be substantive: require disclosure of objective information about the disputed discovery …
Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon
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 eighteenth-century …
An Open Letter To The Ohio Supreme Court: Setting A Uniform Standard On Anders Briefs, Matthew D. Fazekas
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 …
Land Of The Free, If You Can Afford It: Reforming Mayor's Courts In Ohio, Lucia Lopez-Hisijos
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 Process. Ultimately, this Note proposes a model bill …
Masterpiece Cakeshop'S Homiletics, Marc Spindelman
Masterpiece Cakeshop'S Homiletics, Marc Spindelman
Cleveland State Law Review
Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, …
Clear As Mud: Constitutional Concerns With Clear Affirmative Consent, C. Ashley Saferight
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 …
Now, I'M Liberal, But To A Degree: An Essay On Debating Religious Liberty And Discrimination, Francis J. Beckwith
Now, I'M Liberal, But To A Degree: An Essay On Debating Religious Liberty And Discrimination, Francis J. Beckwith
Cleveland State Law Review
This essay is a critical analysis of the book authored by John Corvino, Sherif Girgis, and Ryan T. Anderson, Debating Religious Liberty and Discrimination. The book offers two contrary views on how best to think about some of the conflicts that have arisen over religious liberty and anti-discrimination laws, e.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018). One position is defended by Corvino, and the other by Girgis and Anderson. After a brief discussion of the differing views of religious liberty throughout American history (including the American founding), this essay summarizes each …
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 III …
Nearsighted And Colorblind: The Perspective Problems Of Police Deadly Force Cases, Jelani Jefferson Exum
Nearsighted And Colorblind: The Perspective Problems Of Police Deadly Force Cases, Jelani Jefferson Exum
Cleveland State Law Review
In dealing with the recently publicized instances of police officers’ use of deadly force, some reform efforts have been focused on the entities that are central to the successful prosecutions of police—the prosecutor and the grand jury. Some have suggested special, independent prosecutors for these cases so that the process of deciding whether to seek charges against police officers remains untainted by the necessary cooperative relationship between the police department and the prosecutor’s office. Others have urged more transparency in the grand jury process so that the public can scrutinize a prosecutor’s efforts in presenting evidence for an indictment. Still …
The Duty To Charge In Police Use Of Excessive Force Cases, Rebecca Roiphe
The Duty To Charge In Police Use Of Excessive Force Cases, Rebecca Roiphe
Cleveland State Law Review
Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging—the failure to charge in entire classes of cases. Undercharging can similarly undermine the efficacy and legitimacy of the criminal justice system. While few have focused on this question in the domestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses. This sort of impunity threatens the rule of law and …
Restoring Independence To The Grand Jury: A Victim Advocate For The Police Use Of Force Cases, Jonathan Witmer-Rich
Restoring Independence To The Grand Jury: A Victim Advocate For The Police Use Of Force Cases, Jonathan Witmer-Rich
Cleveland State Law Review
This Article proposes a grand jury victim advocate to represent the interests of the complainant before the grand jury in investigations into police use of excessive force. Currently, the prosecutor has near-exclusive access to the grand jury, and as a result, grand juries have become almost entirely dependent on prosecutors. Historically, however, grand juries exhibited much greater independence. In particular, grand juries have a long history in America of providing oversight over government officials, bringing criminal charges for official misconduct even when local prosecutors proved reluctant. Permitting the alleged victim of police excessive force to be represented before the grand …
Hands-Tied Hiring: How The Eeoc’S Individualized Assessment Is Taking Discretion Away From Employers’ Use Of Criminal Background Checks, Carrie Valdez
Hands-Tied Hiring: How The Eeoc’S Individualized Assessment Is Taking Discretion Away From Employers’ Use Of Criminal Background Checks, Carrie Valdez
Cleveland State Law Review
This article argues that the 2012 EEOC Guidance should not be given deference by the courts. Specifically, the Guidance’s individualized assessment, which imposes a heightened requirement on employers to justify their background check policies, is problematic in three important ways. First, the individualized assessment places an impractical burden by what it requires and whom it requires to conduct such an assessment. Second, employer liability for negligent hiring may actually increase if employers perform individualized assessments. Finally, the practical effect of the individualized assessment may be decreased employer reliance on criminal background checks, and the result will likely not be a …
Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho
Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho
Cleveland State Law Review
Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animusfocused jurisprudence for lifting the discrimination against the …
Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta
Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta
Cleveland State Law Review
The Sixth Circuit's inconsistent jurisprudence threatens the delicate balance that the defense aims to strike between protecting citizens from having their constitutional rights violated on the one hand and protecting government officials from undue interference with their official duties on the other. This Note critiques the medical emergency-law enforcement response capacity the Sixth Circuit has set forth to help adjudicate qualified immunity claims and suggests improvements the court can make to its qualified immunity jurisprudence.In Part II, I briefly trace the Supreme Court's development of the doctrine and outline the doctrine's policy goals. In Part III, I develop my thesis …
Learning Disabilities And The Ada: Licensing Exam Accommodations In The Wake Of The Ada Amendments Act Of 2008, M. Patrick Yingling
Learning Disabilities And The Ada: Licensing Exam Accommodations In The Wake Of The Ada Amendments Act Of 2008, M. Patrick Yingling
Cleveland State Law Review
This Article argues that the courts must be cognizant of Congress' intention to broaden the scope of the ADA, especially in regard to reading impaired individuals who request reasonable accommodations on licensing exams. Part I examines the ADA's protections for individuals with learning disabilities. Part II discusses the applicability of the ADA to licensing exams, including state bar exams. Part III examines case law over the past twenty years pertaining to learning impaired individuals who have requested accommodations on licensing exams. Part IV analyzes the ADAAA and focuses on its potential to change the status quo for learning impaired individuals …
Tailoring The Narrow Tailoring Requirement In The Supreme Court's Affirmative Action Cases, Luiz Antonio Salazar Arroyo
Tailoring The Narrow Tailoring Requirement In The Supreme Court's Affirmative Action Cases, Luiz Antonio Salazar Arroyo
Cleveland State Law Review
In his first and only affirmative action decision since becoming the controlling member of the Supreme Court, Justice Kennedy, in Parents Involved in Community Schools v. Seattle School District No. 1, showed a possible willingness to go back to the looser, more contextualist view of the narrow tailoring requirement that the Court embraced when Justice Powell was the swing vote. This Article argues that regardless of whether Justice Kennedy actually was moving back toward a more contextualist approach to narrow tailoring, a shift away from the highly formalistic inquiry adopted by Justice O'Connor back to the looser contextual standard used …
The Need To Prioritize The Affirmative Furthering Of Fair Housing: A Case Statement, Symposium: New Strategies In Fair Housing, James Robert Breymaier
The Need To Prioritize The Affirmative Furthering Of Fair Housing: A Case Statement, Symposium: New Strategies In Fair Housing, James Robert Breymaier
Cleveland State Law Review
The affirmative furthering of fair housing involves racially and economically pro-integrative policies and programs to produce structural changes that expand housing choices and improve individual opportunities.
The Future Of Fair Housing And Fair Credit: From Crisis To Opportunity, Symposium: New Strategies In Fair Housing, John A. Powell, Jason Reece
The Future Of Fair Housing And Fair Credit: From Crisis To Opportunity, Symposium: New Strategies In Fair Housing, John A. Powell, Jason Reece
Cleveland State Law Review
The following paper provides an assessment of the current housing and credit crisis from a racial justice lens. The paper explores how race was interwoven into the current crisis and demonstrates the racialized impacts of the housing and credit crisis. We also explore some of the current challenges facing fair housing in our society, presenting concepts and models of reform to promote true integration with opportunity. We close with a new paradigm for addressing fair housing in the future and utilizing the opportunities presented by this crisis to produce a fair housing opportunity and a just society for all.
New Strategies For Old Problems: The Fair Housing Act At 40, Symposium: New Strategies In Fair Housing, Jeffrey D. Dillman
New Strategies For Old Problems: The Fair Housing Act At 40, Symposium: New Strategies In Fair Housing, Jeffrey D. Dillman
Cleveland State Law Review
This article discusses the advances in fair housing since 1968 while analyzing the evidence of persistent discrimination and segregation. It looks at past strategies of the enforcement of the FHA by fair housing groups and the education and outreach performed by the groups. Additionally, the author provides commentary on the future of fair housing.
Jones V. Mayer Revisited, Symposium: New Strategies In Fair Housing, Mira Tanna
Jones V. Mayer Revisited, Symposium: New Strategies In Fair Housing, Mira Tanna
Cleveland State Law Review
This article revisits Jones v. Mayer. Jones v. Mayer, decided by the U.S. Supreme Court in 1968, was the first Supreme Court case to rule that the Civil Rights Act of 1866--which guarantees the same right of all citizens to inherit, purchase, lease, sell, hold, and convey real and personal property as is enjoyed by white citizens--applies not only to actions of the state but also to private parties.
Substantial Equivalency And The Future Of Fair Housing In Ohio, Symposium: New Strategies In Fair Housing, G. Michael Payton, Matthew D. Miko
Substantial Equivalency And The Future Of Fair Housing In Ohio, Symposium: New Strategies In Fair Housing, G. Michael Payton, Matthew D. Miko
Cleveland State Law Review
This article reviews recent Ohio court decisions and discusses their potential impact on the continued certification of the state's fair housing law as “substantially equivalent.” It also addresses several responsive steps being taken by the Ohio Civil Rights Commission in order to re-establish the rights and responsibilities under the state's fair housing law.
Toward A Plain Meaning Approach To Analyzing Title Vii: Employment Discrimination Protection Of Transsexuals, Kevin Schwin
Toward A Plain Meaning Approach To Analyzing Title Vii: Employment Discrimination Protection Of Transsexuals, Kevin Schwin
Cleveland State Law Review
The purpose of this Article is two-fold. First, this Article will discuss whether transsexuals should be protected at all from employment discrimination, and if so, whether protection should be accomplished through legislative or judicial means. Then, the Article will discuss each of the aforementioned approaches and advocate for a logical and consistent manner in which courts should decide cases under Title VII where a transsexual plaintiff alleges discrimination because of sex.
Rhetorical Neutrality: Colorblindness, Frederick Douglass, And Inverted Critical Race Theory, Cedric Merlin Powell
Rhetorical Neutrality: Colorblindness, Frederick Douglass, And Inverted Critical Race Theory, Cedric Merlin Powell
Cleveland State Law Review
Rhetorical Neutrality refers to the middle ground approach adopted by the Supreme Court in its race jurisprudence. This Article examines rhetorical neutrality as evinced in the narratives espoused in the opinions of Justices O'Connor and Thomas. In Grutter, both Justices employ neutral approaches, rooted in colorblindness. However, the underlying rhetoric, or how their reasoning is expressed in their respective opinions, is strikingly distinct. Neither Justice advances a remedial approach; both Justices start with the premise that race is inherently suspect, but their approaches diverge because they view colorblind neutrality in fundamentally distinct ways.
Reconsidering The Scope And Consequences Of Appellate Review In The Certification Decision Of Dukes V. Wal-Mart Stores, Inc. , Nicole Hitch
Reconsidering The Scope And Consequences Of Appellate Review In The Certification Decision Of Dukes V. Wal-Mart Stores, Inc. , Nicole Hitch
Cleveland State Law Review
This article will explore the Federal Rules of Civil Procedure and their application in the granting or denial of certification in an employment discrimination class action. In doing so, this article will examine how the district court applied these rules in the Wal-Mart action, which resulted in the certification of the largest private class action suit in American history. Additionally, this article will consider the consequences of the Ninth Circuit's utilization of permissive and liberal standards and, alternatively, the consequences of incorporation of stricter standards from various other circuit courts and the possible result of denial of certification.
Violation Of Latino Civil Rights Resulting From Ins And Local Police's Use Of Race, Culture And Class Profiling: The Case Of The Chandler Roundup In Arizona, Mary Romero, Marwah Serag
Violation Of Latino Civil Rights Resulting From Ins And Local Police's Use Of Race, Culture And Class Profiling: The Case Of The Chandler Roundup In Arizona, Mary Romero, Marwah Serag
Cleveland State Law Review
The case of the Chandler Roundup provides a unique window into law enforcement practices including the planning, staging and procedures employed in removing undocumented immigrants from a specific urban space. We begin with an overview of the Chandler Roundup and community protests resulting from the five-day immigration raid. This section provides a general outline of the five day raid, including incidents leading up to the joint operation, official investigations conducted and lawsuits filed. The basis of the lawsuits filed was that "individuals were stopped and interrogated by the Chandler Police Department based exclusively on the fact that their physical characteristics …
Striking A Balance: Finding A Place For Religious Conscience Clauses In Contraceptive Equity Legislation, Staci D. Lowell
Striking A Balance: Finding A Place For Religious Conscience Clauses In Contraceptive Equity Legislation, Staci D. Lowell
Cleveland State Law Review
This note will attempt to address the interrelationship of the Pregnancy Discrimination Act and the First and Fourteenth Amendments in the context of contraceptive equity legislation. To that end, the note will examine states' definitions of a "religious employer" and make recommendations regarding statutory language that is broad enough to cover those organizations with conscientious objections to contraception but narrow enough to allow women to have ready access to contraceptive services. Following this introduction, Part II of the note will provide background information about both contraceptive equity and religious freedom. Part III will discuss current and proposed contraceptive equity legislation …