Law Commons^™

The Dark Plea: One Of The Most Coercive Abuses Of Power Permitted In The Criminal Justice System, Michael P. Donnelly

Et Cetera

Most prosecutions in our criminal justice system are resolved by defendants entering ostensibly knowing and intelligent guilty pleas—often following negotiations with the state—before trial. But during my time as a trial judge, I encountered a different type of guilty plea, procured by the state when an already convicted offender sought to clear his or her name through an application for a new trial based on newly discovered evidence. I believe the “Dark Pleas” secured in these circumstances are one of the greatest abuses of power permitted in the criminal justice process.

This article sets down in writing a speech I …

To Bring Or Not To Bring: The Personal Jurisdiction Question Raised Under The Rico Statute, And How Courts Can Ensure The “Ends Of Justice” Are Truly Just, Claire Kinnear

Et Cetera

The RICO Act has been confusing for courts to navigate—especially given the Due Process Clause's impact on which defendants courts may have within their personal jurisdiction. The Sixth Circuit Court recently joined a thirty-year old federal circuit split with Peter’s Broadcast Engineering, Inc. v. 24 Capital, LLC, in which the Court held that § 1965(b) is the governing subsection for personal jurisdiction in RICO cases. This Note considers the inherent conflict between the hefty goals the RICO Act sets out to accomplish, and a defendant’s constitutional right to due process of law.

This Note concludes with a new test …

Masthead, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

Copyright Statement, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

That’S No Moon, It’S A Space Station: Determining Ownership Rights On The Moon At The Intersection Of International Treaty And Property Law, Abby Jones

Cleveland State Law Review

The Outer Space Treaty of 1967 asserts in no uncertain terms that no State Party to the Treaty shall claim any part of space, including any part of a celestial body like the moon. Outer space and all its components are the providence of humankind. But how can this be? As states and their private entities continue to expand the outer space market, there are plans for footholds like facilities and stations on the moon that will establish a permanent lunar presence. According to most interpretations of property law, this would establish at least some form of property right at …

Cover, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

Table Of Contents, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

Courting Oblivion Part I: How To Predicate An Act Of Oblivion On The Right To Move On, Joshua J. Schroeder

Cleveland State Law Review

This is the opener of the three-part Courting Oblivion series on the legal concept of oblivion, meaning legal forgetfulness, letting go of the past, or forgiveness, usually to predicate a second chance, a restart, or even an era of reconstruction. This Article opens the Courting Oblivion series by demonstrating how blind-deaf concepts of justice are fundamentally ignorant of the rights and powers of oblivion. The series’ second and third parts will explain more about how acts of oblivion can secure governmental legitimacy and why oblivion needs to be enacted for whistleblowers generally.

This Article defines the legal concept of oblivion …

High And Low: Abortion In The Press In The Late Nineteenth Century And Early Twentieth Century, Lawrence M. Friedman, Hutchinson Fann

Cleveland State Law Review

This Article analyzes the newspaper coverage of abortion in the late nineteenth century and early twentieth century. While coverage of abortion was spotty before the Civil War, we find that a great many articles on abortion appeared after 1850 and for the rest of the century. But by the early twentieth century, although abortion remained a common practice, newspaper coverage of the issue shrank almost to nothing. We examine why this rise and fall in abortion coverage occurred, and what these changes in press coverage tell us about the role of abortion in politics and culture.

Contract Law, Equality And The State, Orit Gan

Cleveland State Law Review

There is a rich and diverse literature on contract law and equality, discussing whether contract law should advance social equality and if so how should contract law achieve that. However, this literature has yet to address the State’s role in combating social inequality through contract law. Filling this void this Article discusses three strategies the State can and should adopt in promoting social equality, by enforcing contracts, applying contract law doctrines, and regulating and legislating laws as background rules. After mapping these three state powers the Article further explores three test cases: enforcing nonmarital agreements, applying contract defenses in consumer …

The Second Amendment’S Domestic Violence Problem: How Rahimi Exposes The Flaws Of Bruen’S Problematic Historical Analogue Test, Conner Greene

Cleveland State Law Review

This Article exposes the flaws of the Supreme Court’s historical analogue test established in Bruen. It details how modern Second Amendment jurisprudence evolved to a tenuous position through Heller and McDonald where the Supreme Court seemingly acknowledged the applicability of means-end scrutiny to the Second Amendment, before the Supreme Court more recently repudiated its use in Bruen in lieu of an inherently flimsy history-only standard that fails to account for modern societal issues. This approach not only severely undermines modern gun regulations—unanimously upheld as constitutional pre-Bruen—but it elevates the Second Amendment to a special status unlike other …

Losing My Religion: How Ministerial Exception Expansion May Negatively Impact Interpretation Of C.R.O.W.N. Act Laws, Ashley Corbin Rice

Cleveland State Law Review

Across the country, black students are policed in schools for their natural hair and protective hairstyles. As a result of this, students who do not conform to their school’s grooming policy or dress code may suffer stiff consequences including being suspended or expelled. The most notable federal piece of legislation in response to this issue was introduced in December 2019. The CROWN Act prohibits race-based hair discrimination on the federal level. The bill passed the House but the Senate blocked it in December 2021.

Despite this recent development, states and municipalities are enacting the CROWN Act across the country. Over …

Washington V. Glucksberg’S Original Meaning, Marc Spindelman

Cleveland State Law Review

This Article elaborates and defends Washington v. Glucksberg’s original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.

The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court’s Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. …

A Model For Understanding Cedaw’S Impact On Implementing Gender Equality Reforms: Lessons From Canada And India, Amanda L. Stephens

Cleveland State Law Review

This Article provides a model for examining the impact of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) on implementing gender equality reforms using Canada and India, two CEDAW State Parties, as case studies. It also explores the influence of heteropatriarchy, deeply-rooted cultural norms perpetuating gender inequality, on hindering CEDAW’s ratification in the United States, as well as CEDAW’s effectiveness in implementing reforms in Canada and India. The analysis showcases how non-governmental organizations (“NGOs”) in these countries have nevertheless achieved limited successes through their mobilization of CEDAW to address specific gender injustices, such as gender …

Remodeling The Fruitless Link Between The Security Council And The International Criminal Court: Why Amending The Un Charter Could Be The Greatest Tribute International Politics Has Ever Paid To International Law, Mickey Isakoff

Et Cetera

Established in 2002, the International Criminal Court (“ICC”) has become a symbolic cornerstone of international criminal jurisprudence—prosecuting and convicting individuals for the commission of genocide, crimes against humanity, war crimes, and crimes of aggression—collectively referred to as atrocity crimes.

One way the ICC can lawfully exercise jurisdiction is by referral—in the form of a resolution—from the UN Security Council. The language of Charter of the United Nations and the Rome Statute collaborate to provide an avenue for the Security Council to grant the ICC jurisdiction over atrocity crime situations. Such resolutions grant the ICC full jurisdiction over the suspected …

Pleading For Justice: Analyzing Ohio’S Wrongful Conviction Compensation Statute And The Guilty Plea Disqualification Provision, Paige Betley

Cleveland State Law Review

Innocent until proven guilty? For some who have walked through the criminal justice system, this American adage did not seem to ring true. The criminal justice system has produced many wrongful convictions, which is an unthinkable injustice. These individuals must then fight for compensation to get back on their feet in society after spending years, if not decades, unjustly behind bars. Ohio’s wrongful conviction compensation statute perpetuates this injustice by categorically excluding exonerees who pled guilty to a crime they did not commit from receiving compensation from the State, with no exceptions. This Note critically analyzes the inherent harms from …

Cover, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

Copyright Statement, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

Good Policing Practices Are Difficult, Even For The Avengers, Melanie Reid

Cleveland State Law Review

Policing, as a topic, is complicated. Many have strong views as to what police should or should not be doing and how effectively they are doing it. Too often policing has become polarized with various perspectives disagreeing as to the future of policing. Black Lives Matter, Defund the Police, and Policing Abolition movements are on one spectrum compared to the Blue Lives Matter Movement or other mayoral or police union initiatives. This is clearly a time to collaborate and learn from the various perspectives to bring hope and change in the future. Lawyers, academics, community members, and police officers alike …

Public Accommodations And The Right To Refrain From Expressing Oneself, Mark Strasser

Cleveland State Law Review

The United States Supreme Court has been unable to articulate a coherent position when addressing the right of individuals to refrain from expressing themselves. The Court has applied various tests inconsistently—emphasizing principles in some cases, ignoring them in subsequent cases, and then emphasizing them again in later cases as if those principles had always been applied. The Court’s approach is incoherent, offering little guidance to lower courts except to suggest that public accommodations laws may soon be found inconsistent with First Amendment guarantees.

Gaps In Our National Security: How The Lack Of Female Leadership Impacts Our Nation’S Success And Safety, Maggie Sullivan

Cleveland State Law Review

Gender inequality in the workplace is an ever-evolving discussion. One aspect of gender inequality that is frequently overlooked is the leadership gap—the lack of representation of women in the top positions of their respective careers. Research demonstrates that the leadership gap is particularly pronounced in the legal field. This Article analyzes the factors within the legal field that perpetuate the leadership gap and examines the unique, confounding qualities of careers in national security to illustrate an exacerbated problem of inequality for women lawyers in national security. The lack of adequate diversity in people working in—and leading—the national-security field has been …

Masthead, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

Table Of Contents, Cleveland State Law Review

Cleveland State Law Review

No abstract provided.

Reassessing Administrative Finality: The Importance Of New Evidence And Changed Circumstances, Gwendolyn Savitz

Cleveland State Law Review

Administrative finality of agency action is generally thought of as a method of avoiding premature judicial review—a claim that the review is too early. But it is also used to prevent judicial review by claiming that the review has now come too late. There are two primary exceptions to this prohibition: new evidence and changed circumstances. However, courts and agencies are reluctant to permit challengers to use these exceptions as often as should be statutorily allowed, an area that scholarship has been neglected.

This Article fills the gap by exploring this aspect of administrative finality, looking at the important government …

Questioning The Legitimacy Of The Expedited Removal Process – The Tall Task Of Protecting The Constitutional Rights Of One Of America’S Most Marginalized Groups, Jacob J. Bourquin

Cleveland State Law Review

This Note explores the origin and development of 8 U.S.C. § 1225—a heavily debated facet of the United States’ immigration law. Section 1225, colloquially referred to as the “expedited removal process,” has been interpreted to permit low-level immigration officers to summarily remove certain “arriving” noncitizens from the United States without affording them the procedural due process protections guaranteed under the Fifth Amendment of the United States Constitution to all individuals present in the United States. This Note posits that the current interpretation of § 1225, particularly the interpretation of “is arriving,” and application of the expedited removal process is inconsistent …

California V. Texas: Avoiding An Antidemocratic Outcome, Jon Lucas

Journal of Law and Health

The Affordable Care Act (“ACA”) contains a section titled “Requirement to Maintain Essential Minimum Coverage.” Colloquially known as the Individual Mandate, this section of the Act initially established a monetary penalty for anyone who did not maintain health insurance in a given tax year. But with the passage of the Tax Cuts and Jobs Act, the monetary penalty was reset to zero, inducing opponents of the ACA to mount a legal challenge over the Individual Mandate’s constitutionality. As the third major legal challenge to the ACA, California v. Texas saw the Supreme Court punt on the merits and instead decide …

Secrets Clutched In A Dead Hand: Rethinking Posthumous Psychotherapist-Patient Privilege In The Light Of Reason And Experience With Other Evidentiary Privileges, Jared S. Sunshine

Journal of Law and Health

Attorney-client privilege was held by the Supreme Court to extend beyond death in 1996, albeit only ratifying centuries of accepted practice in the lower courts and England before them. But with the lawyer’s client dead, the natural outcome of such a rule is that privilege—the legal enforcement of secrecy—will persist forever, for only the dead client could ever have waived and thus end it. Perpetuity is not traditionally favored by the law for good reason, and yet a long and broad line of precedent endorses its application to privilege. The recent emergence of a novel species of privilege for psychotherapy, …

Privileges, Immunities, And Affirmative Action In Medical Education, Gregory Curfman

Journal of Law and Health

In Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the Supreme Court ruled that affirmative action in university admissions, in which an applicant of a particular race or ethnicity receives a plus factor, is unconstitutional. This ruling was based on both the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. This article argues that a more natural fit as the basis for constitutional analysis would be a different clause in the Fourteenth Amendment, the Privileges or Immunities …

Nonfinancial Conflict Of Interest In Medical Research: Is Regulation The Right Answer, Nehad Mikhael

Journal of Law and Health

Medical research plays a vital role in advancing human knowledge, developing new therapies and procedures, and reducing human suffering. Following the atrocities committed in the name of medical research by German physicians during the Nazi era, the Nuremberg trials were held, and an ethical code was created to establish the limits within which medical research can operate. Consequently, legal regimes built upon this ethical foundation to develop laws that ensure the integrity of medical research and the safety of human subjects. These laws sought to protect human subjects by minimizing conflicts of interest that may arise during the process. Furthermore, …

A Trigger Warning: Red Flag Laws Are Still Constitutionally Permissible And Could Reduce The Suicide Rates In The Country's Most Vulnerable States, Joseph C. Campbell

Journal of Law and Health

Montana, Alaska, and Wyoming lead the United States in a category coveted by no one: the suicide rate. Firearm ownership drives the rate to the disproportionate level it reaches year after year and the states are left with little recourse. This article argues the usefulness and constitutionality of narrowly tailored red-flag laws aimed exclusively at reducing the rate of suicide in these mountain states. The article follows Supreme Court jurisprudence leading up to New York Rifle & Pistol Association v. Bruen and offers an analysis that complies with the hyper textualist history and tradition test laid out by Scalia in …