Law Commons^™

The Rise And Demise Of The Collective Right Interpretation Of The Second Amendment, David T. Hardy

Cleveland State Law Review

This article explores the origins of the two competing theories of the Second Amendment -- the "individual rights" approach which carried the majority in Heller and McDonald, and the variants of a "collective right" theory which was previously dominant in the lower courts, and one variant of which was endorsed by the Heller dissents. Careful analysis of states' bills of rights of the Framing period suggests that two guarantees were desired, by different political factions. Framers closely adhering to the Classical Republican point of view favored protection for the militia as a system; those favoring the emerging Jeffersonian point of …

Remedies And The Supreme Court's October 2007 Term, Steven H. Steinglass

Law Faculty Articles and Essays

For this third annual review of Supreme Court decisions, I have identified three cases from very different areas all of which involve the remedies available for violations of federal law. These cases deal with the following issues: (a) federal remedies for state violations of federal labor policy (Chamber of Commerce); (b) state remedies for violations of the federal Bill of Rights (Danforth) and (c) federal common law standards for awarding punitive damages (Exxon Shipping).

Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins

Law Faculty Articles and Essays

Review of documentary series Voices of American Law (Thomas B. Metzloff & Sarah Wood, producers)

Everything You Wanted To Know About Justice Scalia But Were Afraid To Ask, Or Don't Look Now But Justice Scalia's Originalism Approach Is Fatally Flawed, Arthur R. Landever

Law Faculty Presentations and Testimony

I do not deny Justice Scalia's valiant efforts to vote based upon his originalist principles. But both a justice and an observer are well advised to understand the implications of the culture surrounding the Supreme Court. Originalism, in assuming present culture plays little part, and in seeking to operate in a closed universe, distorts the reality of judicial decision-making, and to that extent, risks unsound constitutional interpretations.

Kelo: One Year Later, Alan C. Weinstein

Law Faculty Articles and Essays

June of 2006 marked the first anniversary of the United States Supreme Court's ruling in Kelo v. City of New London, making this a good time to analyze the past year's flurry of activity and assess what it means for local governments. As of mid-May of 2006, more than forty states were considering legislation in reaction to the Kelo ruling, and fifteen have already enacted such legislation.

Aedpa Statute Of Limitations: Is It Tolled When The United States Supreme Court Is Asked To Review A Judgment From A State Post-Conviction Proceeding, Diane E. Courselle

Cleveland State Law Review

This thirty-seven word provision [the tolling provision in the Antiterrorism and Effective Death Penalty Act] has been construed by the United States Supreme Court three times since 1996, and yet several questions remain unanswered. One such unanswered question is whether tolling occurs when a petitioner files a petition for writ of certiorari to the United State Supreme Court from the state court postconviction decision. In other words, does seeking the United States Supreme Court's review from a state court's final decision on an "application for State post-conviction or other collateral review" keep the state post-conviction application "pending?" That is the …

Disarming The Confirmation Process, Michael M. Gallagher

Cleveland State Law Review

To improve the current process and eliminate the bitter nature of confirmation hearings, Senators should not consider a nominee's ideology in determining whether to vote for that nominee. Ideological scrutiny lacks historical and constitutional support; it has led to repeated, prolonged battles that threaten to draw the confirmation process into a dangerous stalemate. Removing ideology from judicial nominations would return the confirmation process to its original understanding, one in which the President enjoys the dominant role. Those who argue that allowing the President, not the Senate, to consider a nominee's ideology would harm the federal judiciary and ignore the nature …

Decide The Law, Clearly - A Reply To Judge Bettman, Ben Glassman

Cleveland State Law Review

The Honorable Marianna Brown Bettman’s dilemma is roughly this: if a clause of a state constitution is worded similarly to a clause in the federal Constitution, how can a state court develop constitutional law? But in important respects, Judge Bettman's question reflects a misunderstanding of the law. This misunderstanding prevents her from identifying what is really at stake in cases like the one she describes. Judge Bettman seems to have misread Michigan v. Long. The Long Court laid out a clear test for determining the Supreme Court's appellate jurisdiction over state cases where the grounds-federal or state-of the state court's …

Respect For The Bioethical Dilemmas - The Case Of Physician-Assisted Suicide, Sixty-Fifth Cleveland-Marshall Fund Lecture, John A. Robertson

Cleveland State Law Review

In this lecture I begin an exploration of the role that respect for human life plays in contemporary bioethics. Although many bioethical dilemmas could be chosen to illustrate this role, I will focus on the case of physician-assisted suicide. This lecture emphasizes the role that respect for human life plays in arbitrating bioethical disputes that involve physician-assisted suicide. I hope to develop some generalizations about how respect for life and autonomy, beneficence and other values interact and thus constitute or define what respect for life means for us. Part I discusses assisted suicide and the ban against actively killing. Part …

Brief Of Amici Curiae Of Ohio Right To Life Society, Inc., Cleveland Lawyers For Life, Inc., Physicians For Life, Inc. In Support Of Respondents, National Organization For Women V. Scheidler, 114 S. Ct. 798 (1993), David F. Forte

Law Faculty Briefs and Court Documents

(In this action, petitioner health care clinics alleged, among other things, that respondents, a coalition of antiabortion groups called the Pro-Life Action Network (PLAN) and others, were members of a nationwide conspiracy to shut down abortion clinics through a pattern of racketeering activity -- including extortion under the Hobbs Act -- in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) chapter of the Organized Crime Control Act of 1970, 18 U.S.C. §§ 1961-1968.)

Amici contend that the ordinary canons of statutory interpretation support the Seventh Circuit's conclusion below that the Racketeer Influenced and Corrupt Organizations ("RICO") chapter of …

The Role Of Oral Argument At The U.S. Supreme Court-- A View From The Podium, Arthur R. Landever

Law Faculty Articles and Essays

This article has offered survey results of the attitudes of lawyers who have made oral arguments at the U.S. Supreme Court. Respondents generally approve of the current process, find the justices relatively well prepared, and the questions generally useful. At the same time, they express some uncertainty about whether the oral argument phase had any impact in their particular cases. By and large, they take as a given, the important function of oral argument as a supplement to the written brief.

Perceptions Of Judicial Responsibility: The Views Of The Nine United States Supreme Court Justices As They Consider Claims In Fourteenth Amendment Noncriminal Cases: A Post-Bakke Evaluation, Arthur R. Landever

Law Faculty Articles and Essays

In this article, the author sketches each Justice by examining his expressed attitudes and silent concurrences in fourteenth amendment noncriminal cases, as well as his remarks in other, non-court settings. While judicial behavioralists have employed quantitative techniques focusing upon analysis of voting records, the author believes that use of the lawyer's traditional method--case and opinion examination-is more appropriate here. Each Justice's composite should tell us not only something about the individual Justice's views, but also something about the views of key blocs on the Court. By such an effort, we learn more about the range of the possible in urging …

Obscenity And The Right To Be Let Alone: The Balancing Of Constitutional Rights, Stephen W. Gard

Stephen W. Gard

While on the one hand a conceptual framework for obscenity cases is essential, it is equally true that the Supreme Court has in the past accepted theories proposed by commentators without making significant progress in extricating itself from the quagmire. In light of this situation, the purpose of this Note is not to urge the Court to accept any new theory for dealing with obscenity, but, rather, to suggest a conceptual framework present in the results of its prior decisions and to urge its explicit acceptance by the Court. No attempt will be made to be faithful to all the …