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Articles 1 - 23 of 23
Full-Text Articles in Law
Civil Rights For Gays And Lesbians And Domestic Partner Benefits: How Far Could An Ohio Municipality Go , Mark A. Tumeo
Civil Rights For Gays And Lesbians And Domestic Partner Benefits: How Far Could An Ohio Municipality Go , Mark A. Tumeo
Cleveland State Law Review
It can be seen from the analyses in this Article that ordinances which grant domestic partnership benefits and/or civil rights to gays and lesbians will probably face a complex gambit of legal challenges under state law, federal law, and both State and U.S. Constitutions. Current law and current common practice in the State, however, indicates that municipalities probably have almost unfettered power to pass ordinances that either grant protection or deny protection to gays and lesbians in the area of employment and housing discrimination within the municipalities jurisdiction. The situation is not as clear when it comes to domestic partnership …
Dna Patenting And Access To Healthcare: Achieving The Balance Among Competing Interests, Melissa E. Horn
Dna Patenting And Access To Healthcare: Achieving The Balance Among Competing Interests, Melissa E. Horn
Cleveland State Law Review
Increasing evidence suggests that the biotechnology industry's interest in generating revenue and the public's desire to obtain the best healthcare may be at odds. The patenting of genetic information is at the core of this debate. Most, if not all, of the products of the biotech industry's research are patentable. Historically, patents have been justified on the grounds that they are needed to create an incentive for researchers and companies to invest time and money in projects that have uncertain outcomes. In the biotechnology arena, patents do not simply encourage innovation and allow innovators to recoup their costs. Patents can …
Ghosts From The Grave-Inheriting Through The Predeceased Under Ohio Law , Kevin Purcell
Ghosts From The Grave-Inheriting Through The Predeceased Under Ohio Law , Kevin Purcell
Cleveland State Law Review
This Article seeks to advise the estate-planning attorney that Ohio's laws concerning inheriting through predeceased persons is a labyrinth of arbitrary rules, the majority of which serve no apparent public policy. Specifically, very different sets of rules apply to inheriting through a predeceased person via intestacy, a will, a living trust, or a "beneficiary designation" type account, such as a "payable on death" account (hereinafter P.O.D.). Additionally, Ohio law contains surprisingly high doses of ambiguity in some of the most basic principles of law relating to inheriting through predeceased next of kin or predeceased named-beneficiaries in a dispositive-planning instrument. Rather …
United States V. Kpmg: Does Section 6103 Allow The Irs To Put Taxpayer Names On The Front Page Of The Wall Street Journal, Beckett G. Cantley
United States V. Kpmg: Does Section 6103 Allow The Irs To Put Taxpayer Names On The Front Page Of The Wall Street Journal, Beckett G. Cantley
Cleveland State Law Review
Section 7431 provides redress for taxpayers in which such confidential taxpayer information is improperly disclosed. Although the IRS disclosure of confidential taxpayer names appears to meet the general rule giving rise to a cause of action, it is unlikely that the named taxpayers would recover damages because the United States is likely to meet the exception where the disclosing party has a good faith, but erroneous, interpretation of section 6103. The United States would meet this exception by showing that a reasonable IRS agent would have believed that the agent could disclose the information. For purposes of this Article, it …
Why The Ohio Bureau Of Workers' Compensation Must Refund Fifty Million Dollars In Subrogation Payments: A Detailed Look Into The State Of Subrogation In Ohio After Holeton V. Crouse Cartage Company, Anthony Alan Baucco
Cleveland State Law Review
This Note begins by examining the complex history behind workers' compensation subrogation rights in the state of Ohio. This historical timeline flows from the period when statutory subrogation was non-existent in Ohio, to the first version of a subrogation statute in 1993, and finally to the broadened and revised statute in 1995. A detailed examination of the Supreme Court of Ohio's decision in Holeton v. Crouse Cartage Company follows the historical overview and focuses on the unconstitutionality of Ohio Revised Code section 4123.931. Additionally, the popular competing views gleaned from both the dissent in Holeton and the Bureau of Workers' …
Should Banks Be Permitted To Engage In Real Estate Brokerage And Management Services: How The Current Debate Demonstrates The Inadequacies Of The Gramm-Leach-Bliley Act, Patrick J. Burke
Cleveland State Law Review
One of the first major efforts by regulators to expand the list of permissible activities under the Gramm-Leach-Bliley Act is to allow financial holding companies and financial subsidiaries of nationally chartered banks to engage in real estate brokerage and real estate management services. Part II of this Note will provide a brief history of the financial service regulations that preceded the Gramm-Leach-Bliley Act. Part III will discuss the legislative history of the Gramm-Leach-Bliley Act, provide a brief overview of the Act, and detail the provision which may allow financial holding companies to engage in real estate brokerage and management activities. …
Lessons From Martin: The Ada And Athletics Don't Mix, Thomas E. Green
Lessons From Martin: The Ada And Athletics Don't Mix, Thomas E. Green
Journal of Law and Health
Martin is a professional golfer in his twenties who is stricken by Klippel-Trenaunay-Weber Syndrome. This disability makes it medically impossible for him to play golf without the use of a golf cart. Martin sued the PGA Tour in 1997 after his request to use a golf cart in a tour event was denied. The U.S. Supreme Court affirmed the Ninth Circuit's ruling allowing Martin to use a golf cart for PGA events. In another case, after initially allowing the golfer, Olinger, to compete in the qualifying rounds, the District Court, and subsequently the Court of Appeals for the Seventh Circuit, …
Property Interests In Cadaverous Organs: Changes To Ohio Anatomical Gift Law And The Erosion Of Family Rights, Melissa A. W. Stickney
Property Interests In Cadaverous Organs: Changes To Ohio Anatomical Gift Law And The Erosion Of Family Rights, Melissa A. W. Stickney
Journal of Law and Health
This note examines how Ohio anatomical gift laws have been interpreted to grant a property right to the next of kin in the decedent’s cadaverous organs. Part II of this note briefly examines the origins of anatomical gift law in the United States and in Ohio. Part III examines the codification of Ohio common law and the adoption of the 1969 Uniform Anatomical Gift Act as the foundation of Ohio’s anatomical gift laws. Part IV analyzes post 1969 Ohio cases that directly or indirectly help interpret Ohio’s anatomical gift laws, with a particular focus on the legal reasoning in Brotherton …
Novel Approach To Mass Tort Class Actions: The Billion Dollar Settlement In The Sulzer Artificial Hip And Knee Litigation: A Symposium, Susan J. Becker, R. Eric Kennedy, Kathleen Mcdonald O'Malley The Honorable, Sidney A. Backstrom
Novel Approach To Mass Tort Class Actions: The Billion Dollar Settlement In The Sulzer Artificial Hip And Knee Litigation: A Symposium, Susan J. Becker, R. Eric Kennedy, Kathleen Mcdonald O'Malley The Honorable, Sidney A. Backstrom
Journal of Law and Health
This is a transcript of a two hour symposium which deals with the Sulzer knee and hip replacement class action. A copy of the settlement is included as an appendix. The settlement in the U.S. District Court for the N.D. Ohio was unique and creative approach to resolving a mass tort class action. In a novel move, Sulzer agreed to open its books to an independent review firm to determine how much the firm could pay without going bankrupt. The number was $1 billion. As negotiated by the parties and approved by the court, the final settlement provides compensation for …
Medical Errors: Causes, Cures, And Capitalism, Keith Myers
Medical Errors: Causes, Cures, And Capitalism, Keith Myers
Journal of Law and Health
This article explores the causes of medical error, the medical profession's responses to errors, and how the legal system responds to medical error through litigation and legislation. Part II discusses the definition of "medical error," the frequency and pervasiveness of the problem, and the causes at the individual and system level. Part III considers how the culture of medicine has largely failed to address medical errors as a systems-based problem, and how the legal culture discourages admitting errors due to the threat of litigation. Focusing on systems, data must be collected and analyzed, and legal guidelines developed to encourage error …
The Serpent In The Garden Of Eden: A Look At The Impact Of Physician Financial Incentive Programs And A Reconsideration Of Herdrich V. Pegram , Amy L. Cralam
The Serpent In The Garden Of Eden: A Look At The Impact Of Physician Financial Incentive Programs And A Reconsideration Of Herdrich V. Pegram , Amy L. Cralam
Journal of Law and Health
The impact of physician incentive programs is at the heart of the recent Supreme Court case Herdrich v. Pegram. In Herdrich, the patient, Cynthia Herdrich, challenged the use of a common incentive structure that allowed physicians to profit from decreased utilization of expensive medical procedures.' Ms. Herdrich alleged that the use of these incentive programs created a conflict of interest for her treating physician and that conflict of interest caused a misdiagnosis of her appendicitis." The Seventh Circuit Court of Appeals agreed with Ms. Herdrich but was later overruled by the Supreme Court. This article suggests that Herdrich v. Pegram …
Reach Out And Touch Someone: Cellular Phones Health, Safety And Reasonable Regulation, Lana Mobydeen
Reach Out And Touch Someone: Cellular Phones Health, Safety And Reasonable Regulation, Lana Mobydeen
Journal of Law and Health
In a nine-part discussion, this note addresses issues concerning the health and safety risks associated with the use of cellular phones, which will also include a section that focuses on the advantages of using cellular phones. It is essential to maintain cellular phones and their utility in our lifestyle for personal safety and security. Health and safety problems with cellular phones must be addressed by the least restrictive regulation possible in order to ensure the continued use and the many benefits that the cellular phone industry presents to our society.
The Right Of Refuse: A Call For Adequate Protection Of A Pharmacist's Right To Refuse Facilitation Of Abortion And Emergency Contraception, Donald W. Herbe
The Right Of Refuse: A Call For Adequate Protection Of A Pharmacist's Right To Refuse Facilitation Of Abortion And Emergency Contraception, Donald W. Herbe
Journal of Law and Health
The purpose of this Note is not to argue for or against either the pro-life or pro-choice positions. The purpose of this Note is to shed light on a serious moral dilemma that faces many pharmacists today, to call for universal acceptance in the pharmacy profession of a right of conscience, and to suggest adequate state and national legislative measures that would protect and prevent pharmacists from having to act contrary to their basic moral convictions. Section I provides background regarding present day abortive and contraceptive drug therapies and the role of the pharmacist in providing such medications. Section II …
Zelman V. Simmons-Harris And The Private Choice Doctrine, Laura T. Rahe
Zelman V. Simmons-Harris And The Private Choice Doctrine, Laura T. Rahe
Cleveland State Law Review
In Zelman, the Court examined the constitutionality of an Ohio pilot program that took effect in the Cleveland City School District. One of the program's provisions permitted parents to use a tuition voucher for their children to attend public or private schools, including religious schools. The statute authorizing the program ensured that participating private schools remained affordable for the most disadvantaged children, and required that the schools refrain from "advocat[ing] or foster[ing] unlawful behavior or teach[ing] hatred of any person or group on the basis of race, ethnicity, national origin or religion." The Cleveland program exemplifies one attempt, informed by …
Protecting America First: Deporting Aliens Associated With Designated Terrorist Organizations That Have Committed Terrorism In America In The Face Of Actual Threats To National Security, Dana B. Weiss
Cleveland State Law Review
In light of the devastation and destruction caused by the September 11th attacks and the remaining imminent threat of more attacks in this country, this Note proposes legislation that would provide for removal of aliens who are merely associated with a known terrorist organization that has committed acts of terrorism in the United States. Part II outlines the Immigration and Naturalization Services (INS) legislation in effect at the time of the attacks and the rationale behind prohibiting deportation for mere association with a known terrorist organization. Part III discusses newly enacted legislation strengthening deportation laws, which do not go as …
A Primer On Organ Donation , Louis J. Sirico Jr.
A Primer On Organ Donation , Louis J. Sirico Jr.
Journal of Law and Health
As organ donation gains increasing attention in our society, attorneys have an obligation to stay current on the issues so that they can properly advise two groups of clients: those who may need transplants and those who, if given reliable information, might consider becoming organ donors. A client in need of a transplant may wish advice about putting his or her affairs in order, and a client who retains an attorney to draft a will may be interested in learning about organ donation. Attorneys should know what a potential organ recipient should consider, how donated organs are allocated, how to …
A Jurisprudential Analysis Of Government Intervention And Prenatal Drug Abuse, Susan Fortney
A Jurisprudential Analysis Of Government Intervention And Prenatal Drug Abuse, Susan Fortney
Journal of Law and Health
This article takes a different approach in considering the problem of prenatal drug abuse. After briefly discussing government intervention and constitutional issues, this article will consider the concept of duty and correlative rights. This discussion of duty and correlative rights suggests that the government can take measures to curb prenatal drug use without recognizing fetal rights. The article concludes with a discussion of the utility of criminal legislation as compared to public health legislation that treats drug addiction as a disease requiring treatment. As formulated, the proposal for public health legislation is not based on any concept of fetal rights. …
Resolving Disputes Over Excess Frozen Embryos Through The Confines Of Property And Contract Law, Shelly R. Petralia
Resolving Disputes Over Excess Frozen Embryos Through The Confines Of Property And Contract Law, Shelly R. Petralia
Journal of Law and Health
This Article addresses the conflicts that arise due to the increased number of cryogenically frozen embryos produced during in vitro fertilization (IVF). Part I discusses the IVF process, in general. While it recognizes the man's role in the process, it focuses primarily on the physical and emotional hardships that are placed on the woman. Part I also gives the backdrop of the case law in the area of embryo distribution. Part II introduces the idea that an embryo should be reduced to private property, through utilization of the labor and economic theories of property law. Additionally, an embryo's use, rather …
Can Cleveland Clinic Health System Be Trusted: Whether A Proposed Merger Or Acquisition By Cleveland Clinic Health System Will Substantially Impair The Competitive Health Care Market In Northeast Ohio Resulting In A Violation Of Federal Antitrust Statutes, Matthew T. Polito
Journal of Law and Health
This article analyzes the implications of the Clayton Antitrust Act (Clayton Act) and the Sherman Antitrust Act (Sherman Act) as they pertain to the Cleveland Clinic Health System (CCHS). Part One provides background analysis of these two statutes, and the application of those statutes to mergers in the health care industry. Part Two discusses the elements needed to prove the government's prima facie case. This consists of a discussion of a relevant market, which includes the product and geographic markets. This section also contains a description and analysis of market concentration, measured by the Herfindahl-HIrschman Index (HHI). Part Three provides …
Situating Thinking Like A Lawyer Within Legal Pedagogy , David T. Butleritchie
Situating Thinking Like A Lawyer Within Legal Pedagogy , David T. Butleritchie
Cleveland State Law Review
The phrase "thinking like a lawyer" maintains as much relevance to today's legal academy as it ever has. In the face of recent criticism that the ideas connected with the concept of "thinking like a lawyer," e.g., the case law method with its focus on the adversarial litigation process, the fact is that legal educators must still teach their students to "think like lawyers." Critics have complained that the narrow focus of this traditional concept unduly restricts the ability of law students to develop refined analytical and practical skills which go beyond the adversarial context. In one sense these critics …
Merging Technology With Justice: How Electronic Courtrooms Shape Evidentiary Concerns, Nicole J. De Sario
Merging Technology With Justice: How Electronic Courtrooms Shape Evidentiary Concerns, Nicole J. De Sario
Cleveland State Law Review
This Note will explore the evidentiary issues raised by the Electronic Courtroom, state how they are presently handled, and highlight the need for the adaptation of the Rules to allow for the smooth integration of such technology into the courtroom. Part I explains why the Administrative Office of the U.S. Courts began funding Electronic Courtrooms and how they have grown in numbers. Part II gives details about the type of equipment typically employed in the Electronic Courtroom, using Courtroom 575 as a case study. The observable impacts of technology on a trial also will be noted. Part III contains an …
To Exhaust Or Not To Exhaust: The Prisoner Litigation Reform Act Requires Prisoners To Exhaust All Administrative Remedies Before Filing Excessive Force Claims In Federal Court, Danielle M. Mcgill
To Exhaust Or Not To Exhaust: The Prisoner Litigation Reform Act Requires Prisoners To Exhaust All Administrative Remedies Before Filing Excessive Force Claims In Federal Court, Danielle M. Mcgill
Cleveland State Law Review
This Note addresses this issue and recommends that excessive force claims be subject to the PLRA's exhaustion requirement, thereby requiring an inmate to exhaust administrative remedies before filing an excessive force suit in federal court. Requiring exhaustion for excessive force claims will help solve the problems associated with the overabundance of frivolous prisoner litigation and the federal judiciary's unnecessary interference into the nation's prison administrations. Moreover, the excessive force issue is in the forefront because the Supreme Court granted certiorari in Porter v. Nussle, a case dealing exclusively with this issue. The lower court, in Nussle v. Willette, allowed an …
Money From Heaven: Should Qualified Air Rights Donations Be Characterized As Interests In Land Or Buildings - Why Does It Matter , Daniel Markey
Money From Heaven: Should Qualified Air Rights Donations Be Characterized As Interests In Land Or Buildings - Why Does It Matter , Daniel Markey
Cleveland State Law Review
Currently, the Internal Revenue Service (hereinafter I.R.S.) and the federal courts do not offer specific positive authority as to whether large amounts of easement value from donated air rights can be allocated against the capital account of "land" as opposed to a "building" on a given tract of real estate. A lack of authority in this area creates uncertainty in the real estate market. This uncertainty is not only with the payment of federal income, estate, and gift taxes, but it also has a ripple effect with the assessment of local property taxes. Most importantly, if a deal is on …