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Articles 1 - 28 of 28
Full-Text Articles in Law
A Moving Bar Approach To Assessing The Admissibility Of Expert Causation Testimony, Aaron Katz
A Moving Bar Approach To Assessing The Admissibility Of Expert Causation Testimony, Aaron Katz
Cleveland State Law Review
This Article argues that the Supreme Court's decisions in Daubert and Joiner imply an approach to the reliability, and hence admissibility, of causation experts that conflicts with the way in which courts traditionally had determined whether to allow the jury to speculate on uncertain causation-in-fact questions. Largely moving past the debate of whether Daubert and Joiner set the admissibility bar too high or low, the Article instead criticizes the decisions on the ground that they suggest that the height of the reliability bar is static and should not be adjusted depending upon the circumstances of the defendant's possibly injurious conduct. …
Voluntary Dismissal In Ohio: A Tale Of An Ancient Procedure In A Modern World, S. Ben Barnes
Voluntary Dismissal In Ohio: A Tale Of An Ancient Procedure In A Modern World, S. Ben Barnes
Cleveland State Law Review
This Note will demonstrate that a modified Federal Rule is the best rule for voluntary dismissal. First, this Note will survey the history of voluntary dismissal and the progression from the common law in England to the current Federal Rule. Second, this Note will discuss the abuses of the rule in Ohio and the need for change. Third, this Note will dissect the Ohio Rule and compare it alongside the Federal Rule. Fourth, this Note will examine possible alternatives. Finally, this Note will propose why a modification of the Federal Rule is the most practical answer to the abuses of …
Reframing The Independence V. Accountability Debate: Defining Judicial Structure In Light Of Judges' Courage And Integrity, David Pimentel
Reframing The Independence V. Accountability Debate: Defining Judicial Structure In Light Of Judges' Courage And Integrity, David Pimentel
Cleveland State Law Review
The perennial debate over striking the right balance between judicial independence and judicial accountability largely misses the mark. The tension between these concepts arises only in the structural sense of the terms, i.e. the conflict lies in the structural approaches traditionally taken to protect independence and to enforce accountability. In actuality, our primary concern should be the judge's own sense of independence and her internal sense of accountability. These more subjective concepts--which may be termed “judicial courage” (for the judge who is willing to act independently) and “judicial integrity” (for the judge who is willing to hold herself accountable)--do not …
Expelling Law Firm Partners, Douglas R. Richmond
Expelling Law Firm Partners, Douglas R. Richmond
Cleveland State Law Review
Law firm partners may be de-equitized or expelled by their firms in good times as well as lean. Such actions appear to be on the upswing. There are, however, relatively few cases on these subjects. The leading case, Holman v. Coie, is dated; the practice of law, at least in large law firms, has changed considerably in the thirty plus years since Holman was decided. Looking ahead, courts must carefully reanalyze the intra-firm duty of good faith and fair dealing. Rather than confining liability to cases of economic predation, courts should review partner de-equitizations and expulsions under either excluder or …
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.
Unintended Collateral Consequences: Defining Felony In The Early American Republic , Will Tress
Unintended Collateral Consequences: Defining Felony In The Early American Republic , Will Tress
Cleveland State Law Review
This Article concludes that the new definition of felony adopted in 1829 by the New York revisors reflected their pragmatic approach of choosing a middle path between the common law traditionalists, exemplified by Maryland, and the radical reforms enshrined in Livingston's penal code. Their choice was an expedient one, redefining an outdated term rather than writing it out of the law. Yet underlying their efforts was a belief that punishment was an instrument of moral reformation, a way of returning the convicted felon to the community as a productive citizen. Creating barriers to a convict's reentry into society with continuing …
Arms For Their Defence - An Historical, Legal And Textual Analysis Of The English Right To Have Arms And Whether The Second Amendment Should Be Incorporated In Mcdonald V. City Of Chicago , Patrick J. Charles
Arms For Their Defence - An Historical, Legal And Textual Analysis Of The English Right To Have Arms And Whether The Second Amendment Should Be Incorporated In Mcdonald V. City Of Chicago , Patrick J. Charles
Cleveland State Law Review
This Article analyzes the arguments Individual Rights Scholars have made concerning the right to have arms and their influence on Supreme Court decisions regarding gun control. The author compares these arguments with historical English gun control laws to show that there is a misunderstanding between the idea that gun ownership rights have always been protected by government.
The Demise Of The Law-Finding Jury In America And The Birth Of American Legal Science: History And Its Challenge For Contemporary Society, Jonathon Lahn
Cleveland State Law Review
This paper proceeds in two parts. The first part is devoted to an historical argument that juries in early American legal systems possessed a broad power to decide questions of law, which corresponded to a conception of the law as emerging from, and intimately bound up with, the experiences and beliefs of the members of a given community--a power that was taken from them in a relatively short period of time due to a variety of social pressures, none of which would have been sufficient to cause the change absent the emergence of a new ideology of law as an …
Habeas Corpus Writ Of Liberty, Boumediene And Beyond, Scott J. Shackelford
Habeas Corpus Writ Of Liberty, Boumediene And Beyond, Scott J. Shackelford
Cleveland State Law Review
This book review focuses on Robert Walker's Habeas Corpus Writ of Liberty: English and American Origins and Development.
A Primer On The Need To Continue Monitoring Closely The Transfer Of Social Welfare Risk And Liability Of Employee Benefit Plans, James E. Holloway
A Primer On The Need To Continue Monitoring Closely The Transfer Of Social Welfare Risk And Liability Of Employee Benefit Plans, James E. Holloway
Cleveland State Law Review
This Article examines why federal legislative policy-makers and judicial decision-makers should ascertain the impact of the transfer of risk and liability on furthering welfare and security interests and preserving organizational discretion under ERISA and public policy. Part I explains why business organizations or employers transfer risk and liability to employees and retirees. This transfer occurs where global business outcomes cause social consequences that are driven directly by business decisions responding to new global competition and less American economic standing. Part II explains the need to assess the substantive issues and public policy concerns underlying legislative acts and judicial interpretations limiting …
Aligning Judicial Elections With Our Constitutional Values: The Separation Of Powers, Judicial Free Speech, And Due Process, Jason D. Grimes
Aligning Judicial Elections With Our Constitutional Values: The Separation Of Powers, Judicial Free Speech, And Due Process, Jason D. Grimes
Cleveland State Law Review
This Note consists of five Parts. Part II traces the historical development of state judicial elections from the perspective of the Framers' doctrine of separation of powers. It shows that judicial elections were borne more of historical contingency than constitutional design. Part II then assesses the recent history of elections to the Ohio Supreme Court. It determines that Ohio's judicial elections share two problems with many other states: millions of dollars given to judicial candidates by special interests likely to appear before the court, and candidates' broad freedom of speech to earn the political and financial support of these special …
The Realism Of Judges Past And Present, Brian Z. Tamanaha
The Realism Of Judges Past And Present, Brian Z. Tamanaha
Cleveland State Law Review
This Article has a single objective: to dispel the notion that judges are deceptive or deluded about judging. These unwarranted assumptions about judges distort theoretical and empirical debates about judging. Ordinarily the participants in any activity are presumed to possess valuable insights about the nature of that activity. Owing to the assumption that judges are deluded or dishonest, what they say on the subject of judging is often regarded with skepticism, discounted at the outset.
Use Of Judicial Doctrines In Federal Tax Cases Decided By Trial Courts, 1993-2006: A Quantitative Assessment, Daniel M. Schneider
Use Of Judicial Doctrines In Federal Tax Cases Decided By Trial Courts, 1993-2006: A Quantitative Assessment, Daniel M. Schneider
Cleveland State Law Review
The hypothesis of this Article is that the accepted wisdom--that judicial doctrines are raised exclusively by the government or the courts for the government's benefit--is wrong. Instead, judicial doctrines are used in a much richer manner by courts and by taxpayers, as well as the government, than the “wisdom” would suggest. It is the first paper to question the accepted thought about judicial doctrines and to do so using social science methodology. Starting at the end and working forward, the evidence assembled for this Article from a group of trial decisions about federal tax controversies establishes that, under the language …
No Cracks In The Wall: The Standing Barrier And The Need For Restructuring Animal Protection Laws, Kristen Stuber Snyder
No Cracks In The Wall: The Standing Barrier And The Need For Restructuring Animal Protection Laws, Kristen Stuber Snyder
Cleveland State Law Review
American society's perception of animals has come a long way since the country was founded over 200 years ago. However, the court system has been slow to evolve along with these views, and the standing requirement maintains a barrier for those wishing to enforce protection through litigation. While protective legislation currently exists, it does not provide the necessary means of enforcement to accomplish its objectives. Thus, the enactment of new legislation is necessary to ensure animals in this country exist under decent and humane conditions.
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.
Equality And The Free Exercise Of Religion , Bret Boyce
Equality And The Free Exercise Of Religion , Bret Boyce
Cleveland State Law Review
Part I of this Article begins with a brief overview of Supreme Court case law on free exercise exemptions, which provides a background for modern historical and normative debates. Part II examines the original understanding of the Religion Clauses, which proponents of “substantive neutrality” claim supports their position. This Part rejects that claim, concluding that the limited evidence of the original understanding of the First Amendment and the Fourteenth Amendment (under which current doctrine makes the First Amendment's guarantees applicable to the states) does not provide a firm basis for resolving modern debates over exemptions, but is at least as …
On Empathy In Judgment (Measure For Measure), Kenji Yoshino
On Empathy In Judgment (Measure For Measure), Kenji Yoshino
Cleveland State Law Review
This article is based on a Baker-Hostetler presentation given by the author at the Cleveland-Marshall College of Law. The author compares the nomination process of Supreme Court justices and the conflict between empathy and rule of law with William Shakespeare's Measure for Measure.
A New Originalism: Adoption Of A Grammatical Interpretive Approach To Establishment Clause Jurisprudence After District Of Columbia V. Helle, Christopher A. Boyko
A New Originalism: Adoption Of A Grammatical Interpretive Approach To Establishment Clause Jurisprudence After District Of Columbia V. Helle, Christopher A. Boyko
Cleveland State Law Review
This thesis proposes an approach to Establishment Clause jurisprudence (and one applicable to constitutional interpretation as a whole) that maintains fidelity to the Constitution by confining the application and interpretation of explicit text to the strictures of well-established norms of grammar and usage. It will begin by analyzing the disparities created through the addition or substitution of super-textual language to the clause through the use of surrogate concepts, and will demonstrate that any such method of constitutional adjudication becomes unworkable and incoherent once such tests utilize surrogate concepts and terminology. Through grammatical exegesis will emerge the theory that the Religion …
Thomas Jefferson, We Have A Problem: The Unconstitutionality Nature Of The U.S.'S Aerospace Export Control Regime As Supposed By Bernstein V. U.S. Department Of Justice , Mike N. Gold
Cleveland State Law Review
All men are created equal, except aerospace workers. This was not how the Declaration of Independence was written, but it is how the U.S. government is currently enforcing its aerospace-related export control restrictions. Specifically, under the auspices of the International Traffic in Arms Regulations (“ITAR”)1 those in the aerospace workforce have unwittingly surrendered their First Amendment rights to free speech. This article will describe how the Ninth Circuit case of Bernstein v. U.S. Department of Justice2 clearly demonstrates the unconstitutional nature of the ITAR and will recommend reforms that would bring America's export control regime back into line with the …
Ohio's New Partnership Law , Jeanne M. Rickert
Ohio's New Partnership Law , Jeanne M. Rickert
Cleveland State Law Review
This article focuses on key areas where Chapter 1776 and RUPA reflect changes in the law of partnerships. This article also highlights how Chapter 1776 differs from RUPA so that lawyers can tailor agreements to Ohio law, and lawyers and courts considering questions of Ohio partnership law can take into account statutory variations when considering the persuasiveness of case law from other jurisdictions that may not have the same statutory rules.
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.
Dangerously Sidestepping The Fourth Amendment: How Courts Are Allowing Third-Party Consent To Bypass Warrants For Searching Password-Protected Computer, David D. Thomas
Dangerously Sidestepping The Fourth Amendment: How Courts Are Allowing Third-Party Consent To Bypass Warrants For Searching Password-Protected Computer, David D. Thomas
Cleveland State Law Review
This Note sets forth that it is unacceptable for law enforcement to ignore the presence of passwords simply because they may not be immediately visible. Furthermore, it is contrary to the Fourth Amendment for law enforcement to rely on third parties who grant access to search the data without knowledge of the password to unlock the data. Principles hammered out over time for searches and seizures of physically locked objects can easily be transposed and extended to fit the virtual world while still providing people the protections of the Fourth Amendment.
The Laboratory Of Judicial Debate: Examining A Commodity Based Approach To Punishing Sex Offences, Lucas R. Franklin
The Laboratory Of Judicial Debate: Examining A Commodity Based Approach To Punishing Sex Offences, Lucas R. Franklin
Cleveland State Law Review
This Note will examine commodity theory as a system for assigning punishment for sexual offenses in the context of the 2007 circuit split over defining “crime of violence” under § 2L1.2 of the Sentencing Guidelines. Part II will discuss the problem of punishing sex offenses and describe Donald Dripps' proposed commodity theory solution. Part III will discuss criticisms of using commodity theory as a basis for punishing sexual offenses. Part IV will provide background information on the U.S. Sentencing Guidelines generally and § 2L1.2 of the Guidelines specifically and explain why the circuit split serves as an ideal opportunity to …
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.
Stripped Of Justification: The Eleventh Circuit's Abolition Of The Reasonable Suspicion Requirement For Booking Strip Searches In Prisons, Andrew A. Crampton
Stripped Of Justification: The Eleventh Circuit's Abolition Of The Reasonable Suspicion Requirement For Booking Strip Searches In Prisons, Andrew A. Crampton
Cleveland State Law Review
Part II of this Note will provide an historical judicial background of the decisions leading up to the Powell v. Barrett decision. This section will first take a brief look at the history of the prison strip search before conducting an in-depth analysis at the Bell v. Wolfish decision, including the facts, rationale, and ambiguities of the decision. Next, this Note will examine the subsequent use of the Bell v. Wolfish decision by the federal courts in the context of strip searches conducted pursuant to facilities' booking policies, focusing on the rise of the “reasonable suspicion” standard. Part III of …
Piercing The Corporate Veil In Ohio: The Need For A New Standard Following Dombroski V. Wellpoint, Inc., Case Comment, Margaret A. Sweeney
Piercing The Corporate Veil In Ohio: The Need For A New Standard Following Dombroski V. Wellpoint, Inc., Case Comment, Margaret A. Sweeney
Cleveland State Law Review
Part II.A of this Comment will discuss the history and purpose of the doctrine of piercing the corporate veil. Part II.B will describe the evolution of this doctrine within Ohio from the development of the Belvedere three-part test, through the conflict among the courts of appeals that gave rise to the Supreme Court of Ohio's latest attempt at clarification. Part III will discuss the facts and procedural history of Dombroski v. WellPoint, Inc. Part IV.A will show how the Supreme Court of Ohio's modification of the Belvedere test will inevitably cause another conflict among the courts of appeals. Part IV.B …