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Articles 1 - 26 of 26
Full-Text Articles in Law
Crimes And Errors Impossible To Commit: Defining Away The Fourth Amendment - Wyoming V. Houghton, Rachel Gader-Shafran
Crimes And Errors Impossible To Commit: Defining Away The Fourth Amendment - Wyoming V. Houghton, Rachel Gader-Shafran
Cleveland State Law Review
This Note contends that the Court's decision to adopt the Houghton approach to the automobile warrant exception is problematic for three reasons. First, the Court has erroneously interpreted the historical evidence behind the creation of the Fourth Amendment. Second, the Court, by chipping away at stare decisis, is disrupting the foundations of American jurisprudence and the development of the law. Third, by creating a new lexicon, changing the meanings of the words, the Court is trying to define away the protections afforded by the Fourth Amendment. This Note will briefly summarize the facts of Houghton and review the historical purpose …
Appellate Review Under The New Felony Sentencing Guidelines: Where Do We Stand , Mark P. Painter
Appellate Review Under The New Felony Sentencing Guidelines: Where Do We Stand , Mark P. Painter
Cleveland State Law Review
Now that it has been more than four years since Senate Bill 2 became effective, this is a good time to analyze the cases to see where courts stand in their interpretations of the guidelines. This article will review the case law and show how different courts have dealt with the legislation. My analysis concentrates on one aspect of the guidelines in particular: the standard of review that appeals courts have used to determine the propriety of sentences. To illustrate my points, I focus on the issue of when judges can impose maximum prison sentences under the guidelines, one of …
Fundamental Misconceptions About Mediation Advocacy, Richard M. Markus
Fundamental Misconceptions About Mediation Advocacy, Richard M. Markus
Cleveland State Law Review
This article discusses the need for mediation courses in law school. It begins by describing the initial resistance to implementing trial advocacy courses, and how that area eventually grew into its current prolific state. The article then moves to the need for more mediation courses, as well as why mediation should be used more frequently in dispute resolution generally. Next, the author discusses and corrects the primary misconceptions about litigation mediation, including: 1) mediation advocacy is much like trial advocacy, 2) all mediations are substantially the same, 3) mediations are desirable whenever they occur in the resolution process, 4) mediation …
How The Supreme Court's Reiteration Of Sexual Harassment Standards Affirmed In Faragher And Ellerth Would Have Led To Jones' Survival In Jones V. Clinton, Moira Mcandrew
Cleveland State Law Review
This note demonstrates that a cognizable claim of sexual harassment may be predicated on a severe, yet isolated episode of sexual harassment. In this inquiry, we will look to other Supreme Court and Appellate Court decisions regarding sexual harassment law to support the conclusion that a single incident of sexual harassment can constitute an actionable hostile work environment claim. Part II traces the background of sexual harassment law, including what constitutes actionable discrimination and the applicable standards of a hostile work environment claim. Part III outlines the Supreme Court's analysis of actionable employment discrimination based on sexual harassment under Title …
Are Frequent Flyer Benefits Really Benefits: An Analysis Of The Frequent Flyer Tax Debate And A New Theory Of Taxability For Frequent Flyer Benefts , Jennifer A. Cunningham
Are Frequent Flyer Benefits Really Benefits: An Analysis Of The Frequent Flyer Tax Debate And A New Theory Of Taxability For Frequent Flyer Benefts , Jennifer A. Cunningham
Cleveland State Law Review
This Note will begin with a brief history of frequent flyer programs and an explanation of how they operate, followed by a closer look at the traditional arguments for nontaxability of mileage earned on personal flights, taxability of mileage earned on business flights for an employer, and proposed theories for valuing the taxable mileage. Next, it will summarize failed attempts by both the courts and the legislature to resolve the issue. After establishing this background, the Note will explore the concept of gross income, particularly as reflected by section 61 of the Internal Revenue Code and interpreted by case law …
The Fundamentalist Face Of Secularism And Its Impact On Women's Rights In India, Joseph C. Hostetler-Baker & Hostetler Lecture, Ratna Kapur
Cleveland State Law Review
I am going to talk about three things today: The first is to give you a very brief account of the competing understandings of secularism that have emerged in India. I look at the model of secularism that is being promoted by the Hindu Right and the validation this has received from the electorate, but more importantly, the Supreme Court. Secondly, I will address why the wall of separation does not provide a way out of the crisis of secularism in India and how it has not solved the problem of majoritarianism even in the American context. And finally, how …
Bargaining For Testimony: Bias Of Witnesses Who Testify In Exchange For Leniency , Spencer Martinez
Bargaining For Testimony: Bias Of Witnesses Who Testify In Exchange For Leniency , Spencer Martinez
Cleveland State Law Review
This note explores the risk that a criminal witness will lie on the stand when he testifies pursuant to a cooperation agreement. Section II is a history of cooperation agreements and how the permissible scope of such agreements has been curbed in the interests of defendants' rights. Section III examines the practice as it exists today, and how, in spite of the risk of perjury, state and federal prosecutors are being given increasing discretion in drafting cooperation agreements. In section IV, the "safeguards" available to the defendant which test the veracity of allegedly-biased testimony are discussed. The conclusion is that …
The Abortion Right, Originalism, And The Fourteenth Amendment, Steven Graines, Justin Wyatt
The Abortion Right, Originalism, And The Fourteenth Amendment, Steven Graines, Justin Wyatt
Cleveland State Law Review
In this article, the Privileges or Immunities Clause will be re-conceived in its original context, at the center of the Fourteenth Amendment. This re-conception includes the assumption that The Slaughter-House Cases" were decided incorrectly.'" The contention of the article is that abortion restrictions, as a specific originalist matter, can be considered economic legislation and that they also economically burden women, such that they unconstitutionally abridge two privileges or immunities, the Lochnerian liberties to contract and the engagement in any of the common occupations. Specifically, abortion restrictions violate "the prohibition on redistributive 'class' legislation ... that was deeply rooted in the …
Biased Justice: Humanrightsism And The International Criminal Tribunal For The Former Yugoslavia , Robert M. Hayden
Biased Justice: Humanrightsism And The International Criminal Tribunal For The Former Yugoslavia , Robert M. Hayden
Cleveland State Law Review
This article thus takes a close look at one of the most important of the elements of the new international legal order which human rights activists promote, the International Criminal Tribunal for the Former Yugoslavia (ICTY). It finds that the ICTY delivers a "justice" that is biased, with prosecutorial decisions based on the national characteristics of the accused, rather than on what available evidence indicates that he has done. Evidence of this bias is found in the failure to prosecute NATO personnel for acts that are comparable to those of Yugoslavs already indicted, and of failure to prosecute NATO personnel …
It's New But Is It Improved: The New Innocent Spouse Provision, Jessica Luby Angney
It's New But Is It Improved: The New Innocent Spouse Provision, Jessica Luby Angney
Cleveland State Law Review
This article will examine the criticisms of the previous "innocent spouse" provision and proposals for reform that aided Congress in enacting a more equitable provision. The new "innocent spouse" provision, § 6015,' will be dissected to reveal the requirements, as well as the changes from the old provision. Also provided in this article will be examples of the new provision applied to cases decided under the old "innocent spouse" provision. Completing this article will be criticisms of the new provision and I.R.S. actions regarding the new provision.
Sexual Harassment In The Military: Time For A Change Of Forum , Michael I. Spak, Jonathan P. Tomes
Sexual Harassment In The Military: Time For A Change Of Forum , Michael I. Spak, Jonathan P. Tomes
Cleveland State Law Review
This article will review the current status of sexual harassment in the military, discuss why courts-martial are ineffective in punishing and deterring sexual harassment, and suggest that permitting sexual harassment claims in a forum other than the military justice system would help deter future sexual harassment in the military at no greater cost to military discipline and preparedness than is inherent in the current system.
Food For Sport Or Faustian Bargain: Regulating Performance Enhancing Dietary Supplements, Jennifer Kay Braman
Food For Sport Or Faustian Bargain: Regulating Performance Enhancing Dietary Supplements, Jennifer Kay Braman
Cleveland State Law Review
The defining line between legal and illegal substance-between dietary supplement and drug is horribly skewed. Accordingly, Part I of this Note will investigate the complexities that exist with regard to the classification and regulation of dietary supplements, looking at the history leading to the passage of the governing Dietary Health and Supplement Act of 1994. Part II will focus on supplements that consumers may use for performance enhancement purposes, and the regulation of sports products. Part III will look at the regulatory debate over dietary supplements, the andro product example and the interrelationship between drugs and sport. Part IV will …
Mr. Justice Holmes's Constitutionally Crooked Path Part Ii: The State Sovereignty Jurisdictional Stopgap , Mitchell B. Weiss
Mr. Justice Holmes's Constitutionally Crooked Path Part Ii: The State Sovereignty Jurisdictional Stopgap , Mitchell B. Weiss
Cleveland State Law Review
This article analyzes the last turn in Justice Holmes's constitutionally crooked path, largely by penetrating to the very core of the Supreme Court's recent decision in Alden v. Maine. Part I therefore traces the Court's waffling attitude towards the division of regulatory power between the state and federal governments. Then, against this backdrop, Part II takes the jurisdictional turn by analyzing the Court's most recent attempt to resuscitate the Tenth Amendment's check on Congress's Commerce Power. To sharpen the focus, much of this article will focus on the Fair Labor Standards Act, a federal statute that always seems to sit …
The Origins Of American Democracy, Or How The People Became Judges In Their Own Causes, The Sixty-Ninth Cleveland-Marshall Fund Lecture , Gordon S. Wood
The Origins Of American Democracy, Or How The People Became Judges In Their Own Causes, The Sixty-Ninth Cleveland-Marshall Fund Lecture , Gordon S. Wood
Cleveland State Law Review
The awesome power of this democratic polity, with people becoming judges in their own causes, was such that our political leaders over the past two centuries have struggled to constrain and mitigate its effects. In fact, that is what our current concern with campaign financing is all about. From the very beginning of our national history we Americans have used a variety of devices and institutions to immunize ourselves from the harmful consequences of too much democracy, too much factious promotion of private interests in the name of the people. No doubt the most important of these devices has been …
Life, Death And The Law - And Why Capital Punishment Is Legally Insupportable , Peter Fitzpatrick
Life, Death And The Law - And Why Capital Punishment Is Legally Insupportable , Peter Fitzpatrick
Cleveland State Law Review
Given that law has an integral commitment to life, in this lecture I want to show how the law should manifest something of a fundamental dissonance, even a terminal incoherence, when law is called upon to deal death. That is what happens in the judicial discourse on the death penalty in the United States. I will approach this demonstration in a way that may at first seem paradoxical, in a way that will bring out the deep affinity between law and death. That affinity is one in which death is, in a sense, the limit of law; a limit that …
Election Of Chapter 7 Trustees Under The Bankruptcy Code , Darrell Dunham
Election Of Chapter 7 Trustees Under The Bankruptcy Code , Darrell Dunham
Cleveland State Law Review
This article offers an analysis of the election of chapter 7 trustees. Part II the prior statutory scheme and the legislative history supporting the present statute. Part III examines the present statute, discussing the statutory requirements for the election of a chapter 7 trustee. Part IV discusses election procedures. The bankruptcy rules mandate a prescribed set of procedures for elections, including procedures for disputing the results of an election. These rules and the cases applying them are discussed in Part IV. In Part V, appellate reviewed is examined. This section analyzes questions such as standing and appealable orders. Finally, in …
Filing Nationwide Perfectly Or Get With The Trend , Michael I. Spak
Filing Nationwide Perfectly Or Get With The Trend , Michael I. Spak
Cleveland State Law Review
In the shadow of the looming year 2000, the Uniform Commercial Code ("U.C.C.") and its filing system, with its independent and varied offices all over the United States, was a system which had not taken advantage of the modern technology available, and thus had failed to keep pace with the rest of society's institutions. It was the author's view that all of the then-present filing systems should have been brought into the 21st century by merging them into a single, unified, central, national U.C.C. filing system. The article begins by discussing different types of filing systems, then focuses on the …
The Parent-Child Testimonial Privilege - Has The Time For It Finally Arrived, Amee A. Shah
The Parent-Child Testimonial Privilege - Has The Time For It Finally Arrived, Amee A. Shah
Cleveland State Law Review
Academics and courts in the United States have been grappling with the issue of compelled parent or child testimony for more than twenty-five years. This article uses the bills of the late-1990s proposed in the House and Senate to analyze the parent-child privilege debate. First, this article will discuss the history of the parent-child privilege. Next, the proposed bills will be evaluated to determine their effectiveness in achieving their goals and in resolving the debate. This article will then discuss the effects that the passage or nonpassage of these bills (particularly the House bill) would have. Finally, this article proposes …
E-Mail: A Constitutional (And Economical) Method Of Transmitting Class Action Notice, Jennifer Mingus
E-Mail: A Constitutional (And Economical) Method Of Transmitting Class Action Notice, Jennifer Mingus
Cleveland State Law Review
This Note argues that courts should find that notice by e-mail satisfies the standards of due process that the United States Supreme Court has developed for class action notice. First, this Note establishes that e-mail is a form of individual notice, as required by Eisen v. Carlisle & Jacquelin. Second, this Note shows that e-mail notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action" and "reasonably certain to inform those affected" as required by Mullane v. Central Hanover Bank & Trust Co. Third, this Note contends that due process is a …
Determining The Immunity Measuring Stick: The Impact Of The Health Care Quality Improvement Act And Antitrust Laws On Immunity Aspects Of Granting Privileges To Physician Assistants, Joseph Mark Saponaro
Determining The Immunity Measuring Stick: The Impact Of The Health Care Quality Improvement Act And Antitrust Laws On Immunity Aspects Of Granting Privileges To Physician Assistants, Joseph Mark Saponaro
Cleveland State Law Review
This note examines the antitrust developments that affect the health care industry; the Health Care Quality Improvement Act of 1986; the treatment of peer review process immunity for physicians as it now exists; how non-physician providers are dealt with in the peer review process; and where physician assistants fit into the whole scheme. Part I of this note lays a foundation of antitrust principles, briefly explaining the applicable portions of the Sherman Act. Part I continues by setting forth the approaches, rule of reason versus per se rule, that courts utilize when dealing with antitrust situations. After explaining these governing …
Gene Therapy: Legal And Ethical Issues For Pregnant Women , Angela Liang
Gene Therapy: Legal And Ethical Issues For Pregnant Women , Angela Liang
Cleveland State Law Review
The decision to undergo gene therapy in utero for the sake of a fetus should legally rest with the pregnant woman rather than the judiciary or the legislature. Part I of this article provides an overview of the current scope of gene therapy. Part II discusses previous court decisions that either granted or denied petitions for involuntary prenatal intervention. Part III analyzes three reasons why the courts should not impose gene therapy on pregnant women as the technology becomes available. First, a policy that mandates gene therapy would place an undue burden on pregnant women and violate the Equal Protection …
The Imagination Is A Fertile Stomping Ground: Non-Enumerated Grounds For Departure From The United States Sentencing Guidelines Under 5k2.0, Jennifer L. Cordle
The Imagination Is A Fertile Stomping Ground: Non-Enumerated Grounds For Departure From The United States Sentencing Guidelines Under 5k2.0, Jennifer L. Cordle
Cleveland State Law Review
Individuality in sentencing is a hallmark of true justice. The United States Sentencing Commission, which provides for uniformity through a series of detailed guidelines, recognized the need for individuality in sentencing by allowing for discretionary departures. Though the Sentencing Guidelines provide some direction regarding departures, the Commission did not take all factors that may be relevant into account when developing the guidelines. Section I of this article describes the sentencing systems in effect in the United States both before and after the adoption of the Sentencing Guidelines. Section II discusses the types of departure grounds, explains when a non-enumerated ground …
The Politics Of Religion: Reasonable Accomodations And The Establishment Clause An Analysis Of The Workplace Religious Freedom Act, Gregory J. Gawlik
The Politics Of Religion: Reasonable Accomodations And The Establishment Clause An Analysis Of The Workplace Religious Freedom Act, Gregory J. Gawlik
Cleveland State Law Review
The Workplace Religious Freedom Act is the focus of this note. The Workplace Religious Freedom Act represents another Congressional attempt to fortify the "reasonable accommodations" and "undue hardship" standards of Title VII with regard to religious discrimination in the workplace; the WRFA does go in the face of Supreme Court decisions which have narrowed the scope of those standards, eased burdens on employers, and valiantly guarded the citadel of the First Amendment's Establishment Clause. Specifically, this note will analyze the potential constitutional infirmity of the Workplace Religious Freedom Act in light of Establishment Clause jurisprudence and the Court's rather murky …
Identification Of The Unknown Soldier And The Fight For The Right To Anonymity: The Human Genome Project And Implications Of A National Dna Database, Kelly S. Erbes
Cleveland State Law Review
The focus of this writing is the use of DNA for identification purposes and the issues that arise when genetic traits and/or predisposition to physical or mental conditions are linked to the individual specifically, along with the implications of a national DNA database as a system of identification. It has become the general rule that it is not an unreasonable invasion of privacy to take DNA for the purpose of identifying criminal offenders through a DNA database. This writing will examine the potential for nonconsensual inclusion of nearly everyone into such a system, as well as the ramifications in the …
International Jurisdiction And Prosecutorial Crimes, The Seventieth Cleveland-Marshall Fund Lecture , Richard J. Goldstone
International Jurisdiction And Prosecutorial Crimes, The Seventieth Cleveland-Marshall Fund Lecture , Richard J. Goldstone
Cleveland State Law Review
The topic of this address is international jurisdiction and prosecutorial crimes. Two distinct but pervasive issue-areas arise when discussing international jurisdiction and prosecutorial crimes. The first relates to the ability of domestic or national courts, whether in the United States or any other country, to try people for international crimes committed either within or outside their borders. The second concerns the establishment of supra-national or international courts with inherent international criminal jurisdiction. I believe that these two facets of the enforcement of international criminal law are neither inconsistent, nor contradictory. I am convinced that in principle and in practice, national …
A Current Look At Ohio's Juvenile Justice System On The 100th Anniversary Of The Juvenile Court, Scott C. Zarzycki
A Current Look At Ohio's Juvenile Justice System On The 100th Anniversary Of The Juvenile Court, Scott C. Zarzycki
Cleveland State Law Review
This Note takes a closer look at the problems associated with transferring juveniles to adult court by focusing on Ohio's juvenile transfer statute. Part II begins with an analysis of the history of the juvenile court, including its establishment and evolution throughout time. It also includes an analysis of how the common interpretation of the original approach to juvenile crime has created an overly narrow view of how to deal with the problem today. Part III examines the latest crime statistics that reveal a significant drop in juvenile crime. This section also explores various alternative explanations for the apparent rise …