Law Commons^™

Judicial Attitudes Toward Specific Performance Of Construction Contracts, Eliot L. Axelrod

University of Dayton Law Review

Specific performance has long been recognized in contract law as the fundamental alternative to monetary relief, when such relief is deemed inadequate. Historically, however, the general rule has been to deny decrees for specific performance when a contract to construct or repair is involved. Reasons traditionally advanced for these denials include the availability of damages as an adequate remedy at law, the lack of sufficient contractual details necessary to fashion a meaningful decree, and the practical difficulties underlying supervision of the contract by the court. Some modern courts, on the other hand, have suggested that the difficulties envisioned by the …

Federal Antiturst, Economic Freedom, And The Uncertain Conduct Requirement In Section 2 Of The Sherman Antitrust Act: Toward A More Objective Approach, Charles R. Corbin Jr.

University of Dayton Law Review

Following the Civil War in the United States, American industry embarked upon a period of "truly remarkable economic growth.” In several respects economic expansion was beneficial to the general population, as commerce spread to new frontiers through development of canal and railroad systems.

Concurrently, however, rapid economic growth by the late 1880's brought popular objection to large business enterprises and their ability to devour local businesses and manipulate merger schemes. Trusts had become anathema well before Congress considered any legislative remedy.

The Sherman Antitrust Act was one response to public opinion' that was increasingly adverse to large business conglomerates. With …

Evidence: The Good Faith Exception To The Exclusionary Rule, Anthony L. Geiger

University of Dayton Law Review

United States v. Williams, 622 F.2d 830 (5th Cir. 1980), cert. denied, 101 S. Ct. 946 (1981).

The Fifth Circuit Court of Appeals, in United States v. Williams, strictly limited the scope of the exclusionary rule in criminal proceedings by announcing acceptance of the good faith exception. … The interest in the purposes of the exclusionary rule is more than pedagogical concern. The courts’ perception of the purposes of the rule will determine its future scope and application. The Williams court used the sole purpose of deterrence as established in Calandra and subsequent cases for the basis of its decision. …

Tort Damages: The Adjustment Of Awards For Lost Future Earning Capacity To Compensate For Inflation And Increased Productivity, Thomas J. Hurney Jr.

University of Dayton Law Review

Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980).

In 1916 the United States Supreme Court mandated that awards for future damages be discounted to their present worth in order to avoid overcompensation of an injured plaintiff. The rationale for discounting was that “a given sum of money in hand is worth more than the like sum of money payable in the future.” Due to increasing realization of the economic effects of inflation, however, many courts are reconsidering “the fairness of basing awards for future damages upon the present purchasing power of the dollar.” In its attempt to reconcile …

Securities Laws: The Exclusivity Of The Private Right Of Action Under Section 18 Of The 1934 Act And Its Relationshp To Rule 10b-5, Mark Manovich

University of Dayton Law Review

Ross v. A.H. Robins, 607 F.2d 545 (2d Cir. 1979), cert. denied, 446 U.S. 946 (1980).

The issue resolved in Ross v. A.H. Robins concerns the viability of an action filed under section 10(b) of the Securities Exchange Act of 1934 and rule l0b-5 when section 18 of the same Act contains an express civil remedy. Section 18 imposes liability for making “any statement in any … document filed …; which statement was... false and misleading with respect to any material fact” to one who relies upon such statement and purchases or sells securities at a price affected by the …

Domestic Relations: Recognition Of Wife's Interest In Professional Degree Earned By Husband During Marriage, Carol A. Perez

University of Dayton Law Review

Hubbard v. Hubbard, 603 P.2d 747 (Okla. 1979).

A professional education is a valuable asset, often acquired through the joint efforts of both partners to a marriage. A number of state courts have recently addressed the issue whether a professional degree constitutes an asset which may be divided upon dissolution of a marriage. Although courts have been reluctant to hold a professional degree is divisible property, the trend is toward recognition of the working spouse's contribution to the education of the student spouse, particularly when the marital break-up occurs before any substantial tangible assets are acquired by the. couple. In …

Patent Law: Patentability Of A Process That Includes A Programmed Digital Computer: The Court Invents A New Standard, Michael J. Kramer

University of Dayton Law Review

Diamond v. Diehr, 101 S. Ct. 1048 (1981).

Authority for Congress to enact the patent laws is found in the Constitution: “The Congress shall have power … to promote the Progress of Science and useful Arts, by securing for Limited times for Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The patent laws are codified in title 35 of the United States Code.

The purpose behind patents is to advance knowledge. This is done in two ways. First, patents encourage inventions by offering exclusive enjoyment of the discovery for seventeen years. Second, patents add to the …

H.B. 716: Cause Of Action For Chromium And Asbestos Injury Upon Discovery Of Injury, Ruth Antinone

University of Dayton Law Review

Diseases caused by inhalation of asbestos or chromium are very serious and often result in death. These diseases are most often suffered by those who work with these chemicals on a daily basis. Due to the nature of the diseases and the existing statute of limitations, many afflicted workers have received no compensation for their injuries. However, in 1980 the Ohio General Assembly passed House Bill 716 which amended the statute of limitation for personal injury caused by asbestos or chromium. In enacting the legislation, the Ohio legislature recognized that a long latency period exists between the time of exposure …

Evidentiary Privilege: Help For Corporations? The Supreme Court Rejects The Control Group Test: Strengthens The Work-Product Doctrine, Scott Selbach

University of Dayton Law Review

Upjohn Co. v. United States, 449 U.S. 383 (1981).

The attorney-client privilege, and its application to corporations, has long been a source of confusion in the federal courts. The disorder stems from the competing interests arising between the liberal scope of discovery and the secrecy important to the attorney-client privilege. The attorney-client privilege has been viewed as an exception to the general rule that the scope of discovery is to be liberally construed in order to provide all parties with information essential to proper litigation on all facts. Even as an exception, however, the privilege has importance of its own …

S.B. 165: Comparative Negligence In Ohio, Paul Courtney, Brian Dovi

University of Dayton Law Review

On March 4, 1980, the Ohio General Assembly finally concurred on an amended form of Senate Bill 165, and when the Governor added his signature, Ohio had a comparative negligence statute. The law represents the culmination of long and arduous efforts at compromise in the legislature and follows more than seven years of fierce opposition by insurance companies and the insurance lobby. When the opposition finally withdrew and the last wrinkles were ironed out, the lawmakers devised a mathematical damages apportionment system for negligence cases where contributory negligence is asserted. However, the Act leaves important questions unanswered, and problems which …

H.B. 695: Updating Ohio's Temporary And Permanent Custody Procedures For Child Abuse, Neglect And Dependency Cases, Marcell Neil Dezarn

University of Dayton Law Review

Once a juvenile court has adjudicated a child abused, neglected, or dependent, the issue becomes the extent to which the state's parens patriae power should be used to intervene in the parent-child relationship. Authorities are in agreement that children should be protected from harm, but they differ regarding what harms should be protected against and the means of providing that protection.

The Ohio General Assembly recently enacted House Bill 6951 to provide guidelines for this complex interrelationship between parental autonomy in raising children and the state's obligation to protect children. In focusing on the reunification of the family, while providing …

Child Custody: Substantial Justice Toward Children Or Procedural Purity For Parents, Wayne Everett Waite

University of Dayton Law Review

Pasqualone v. Pasqualone, 63 Ohio St.2d 96, 406 N.E.2d 1121 (1980).

Under the current state of child custody law, children are often transported from one state to another while their parents battle for the right to enjoy permanent custody. Even after custody has been awarded to one of the parties, the stability of the child's future may still be uncertain. The Uniform Laws Commission asserts that those who lose a court battle over custody are frequently unwilling to accept the judgment of the court and will abduct the child or fail to return him after a visit. Even though these …

The Paradoxical Role Of Informers Within The Criminal Justice System: A Unique Perspective, David Katz

University of Dayton Law Review

The primary function of the informer is to disclose information to law enforcement authorities which will result in a criminal investigation against a member of society. The informer’s role is a powerful one. Based on his knowledge, a person may be arrested, and possibly suffer loss of freedom, employment, or damage to reputation. Yet the use of informers is widespread, and is often undertaken without safeguards sufficient to avoid abuse by the police. Abuse of informant’s information often arises in the context of pretrial warrant challenges and the entrapment defense.

This article will explore some of the problems implicit in …

A Proposed Legislative Solution To The Problem Of Violent Acts By Participants During Professional Sporting Events: The Sports Violence Act Of 1980, Mark E. Langevin

University of Dayton Law Review

Over the past decade, the law's emergence into the professional sports arena has been increasing. Traditional criminal assault and battery charges have been levied against professional athletes for injuring other participants. Professional players have also been allowed to recover under tort law for injuries incurred as a result of the intentional and reckless conduct of their fellow players. Despite this increase in judicial activity, however, standards of conduct for professional sports participants are still not well defined and enforcement is haphazard and uneven. To alleviate these problems and also to satisfy the perceived increase in societal consciousness towards violent acts …

Front Matter, Volume 7, Number 1 (1982), University Of Dayton

University of Dayton Law Review

Title page and table of contents, Volume 7, Number 1

Voluntary Commitment Of Mentallly Ill Or Retarded Children: Child Abuse By The Supreme Court, Allen Edward Shoenberger

University of Dayton Law Review

“Paternalistic decisions are to be guided by the individual’s own settled preferences and interests insofar as they are not irrational, or failing a knowledge of these, by the theory of primary goods. As we know less and less about a person, we act for him as we would act for ourselves.... We try to get for him the things he presumably wants whatever else he wants.

Recent Supreme Court decisions concerning institutional care to mentally ill or retarded children are both contradictory and surprising. For example, the Court has recently permitted the “sterilization of a minor female on ex parte …

Hearsay Evidence: Inculpatory Declarations Against Penal Interest And Federal Rule Of Evidence 804(B)(3), Michael T. Blee

University of Dayton Law Review

United States v. Sarmiento-Perez, 633 F.2d 1092 (5th Cir. 1981).

Hearsay statements have traditionally been regarded as inadmissible evidence because of their unreliability. Exceptions have developed, however, which allow particular hearsay declarations to be admitted in evidence provided they possess sufficient guarantees of trustworthiness.

Declarations against interest are one such exception. This exception, which originated in the early 1800’s, formerly encompassed statements against pecuniary or proprietary interest, but not statements against penal interest. A lack of sound reasoning for this materialistic restriction provided the motivation for a painfully slow trend toward sanctioning the use of extrajudicial statements against penal interest …

S.B. 174: Ohio Defines A New Standard Of Care For Corporate Directors, Dennis L. Bailey

University of Dayton Law Review

A definition of a corporate director's legal duty and corresponding potential for personal liability involves a delicate balance. Such a definition should insure that the corporation's directors will adequately represent the shareholders' interests, yet it must not so rigidly impose liability on the directors that talented individuals will be discouraged from becoming directors. At the same time, some certainty in the application of a standard may be as important for directors as a lack of rigidity. The Ohio legislature has used The Model Business Corporations Act as its source in an effort to achieve this balance through Senate Bill 174. …

Casenotes And Comments Index, Volumes 1-6, University Of Dayton

University of Dayton Law Review

No abstract provided.

Front Matter, Volume 6, Number 2 (1981), University Of Dayton

University of Dayton Law Review

Table of Contents

Recovery Of Punitive Damages In Ohio Wrongful Death Actions: A Preferred Approach, James J. Ross

University of Dayton Law Review

Punitive damages in tort law, awarded to the plaintiff in addition to full compensation for injuries, are said to punish the defendant, to restrain him from committing the same act again, and to deter others from following his example. Nevertheless, “[s]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage … or such a conscious and deliberate disregard of the interests of others that [the defendant’s] conduct may be called willful or wanton.”

An anomalous area exists in the awarding of punitive damages. Under the general rule, …

Osha Regulation Of Benzene: The Missing Ingredient Of Cost-Benefit Analysis, Marybeth W. Rutledge

University of Dayton Law Review

The 1980 Supreme Court ruling on the regulation of benzene in the workplace sidestepped the troubling question of the role cost-benefit analysis should play in Occupational Safety and Health Administration (OSHA) regulation of toxic substances. Cost-benefit analysis consists of an agency estimate of expected health benefits from a proposed standard, an estimate of what it will cost the affected industry to comply with the standard, and a determination of whether the expected benefits bear a reasonable relationship to the estimated costs. In evading the issue of whether or not the OSH Act requires the agency to undertake a cost-benefit analysis …

Analysis Of Selected 1980 Ohio Legislation, University Of Dayton

University of Dayton Law Review

This section of notes continues the practice of the University of Dayton Law Review of providing analyses of selected recent enactments by the Ohio General Assembly. In the past these notes have been published once a year. Current plans, however, call for the inclusion of legislation notes in all future issues of the Review.

The University of Dayton Law Review extends its sincere appreciation to the officers and staff of the Ohio Legislative Service Commission and to the many others who provide valuable information and assistance to the authors of these notes. Without the aid of these individuals the continuation …

The Affirmative Duty To Disclose Under Rule 10b-5, Thomas J. Troetti

University of Dayton Law Review

The linchpin of federal securities law is full disclosure of information in order that investors have the opportunity to make informed investment decisions. An administrative device created to implement this theme is rule l0b-5, promulgated pursuant to section 10(b) of the Securities Exchange Act of 1934. Because section 10(b) is a catchall provision designed to prevent fraudulent activities, the Securities and Exchange Commission (SEC) and the judicial branch have had to delineate the parameters of l0b-5.

Perusal of the generic language of l0b-5 reveals that false statements and misleading half-truths, made in the purchase or sale of any security, are …

Judicial Review And The National Political Process: A Functional Reconsideration Of The Role Of The Supreme Court (By Jesse H. Choper), Richard B. Saphire

University of Dayton Law Review

We have come to an important crossroad in constitutional law. Academic commentators are calling for a broad reexamination of traditional assumptions about the role that both the Constitution and Supreme Court can and should play in our society. Some critics of the Court complain that it takes too narrow a view of the Constitution, while others have argued that the court interprets it too broadly. Despite differences in perspective, most will no doubt agree with Professor Leff’s observation that “it is awfully hard to be a credible constitution thinker by treating the Constitution as irrelevant.” Perhaps it is time to …

S.B. 297: Procedural Changes In Civil Commitment For Those Found To Be Not Guilty By Reason Of Insanity In Ohio, Frank Nagatani, Ned J. Nakles

University of Dayton Law Review

In April 1980, the Ohio General Assembly enacted Senate Bill 297. The bill was promulgated to provide specific changes in the procedures for the civil commitment and release hearings of persons found not guilty by reason of insanity (NGRI). This legislation was enacted as an emergency measure in response to increasing public unrest over the release of NGRI patients. Much of the concern was seemingly precipitated by recent, well publicized trials in which the defendants pled not guilty by reason of insanity following charges of murder. The new bill was designed to correct procedural flaws in the present insanity law …

Legislative Analysis Index, Volumes 1-6, University Of Dayton

University of Dayton Law Review

No abstract provided.

Patronage Politics: Democracy's Antidote To Enforced Neutrality In Civil Service, Mary Ann Thinnes

University of Dayton Law Review

Branti v. Finkel, 445 U.S. 507 (1980).

“When … all who [hold] office hold by tenure of partisan zeal and party service … the certain, direct and inevitable tendency … is to convert the entire body of those in office into corrupt and supple instruments of power and to raise up a host of hungry, greedy and subservient partisans, ready for every service, however base or corrupt.”

Despite this early warning issued by a special Senate Committee inquiring into executive patronage under Andrew Jackson, patronage remains a long-accepted tradition in American political life. Patronage is alternately credited with “democratizing American …

Amendment To Ohio's Environmental Protection Verified Complaint Law, Daniel Anthony Bernardin

University of Dayton Law Review

In May of 1980, the 113th Ohio General Assembly enacted Senate Bill 284 to amend section 3745.08 of the Ohio Revised Code. The purpose of the enactment is stated to be clarification of procedures utilized for filing and resolving complaints of alleged violations of specific pollution control laws. The bill was enacted in response to the recommendation of the Ohio Environmental Protection Agency (OEPA) that changes and clarification of procedures regarding verified complaints were necessary.

Of particular concern to the OEPA was the exercise of hearing rights as a dilatory tactic by persons charged in a complaint. The OEPA asserts …

Author Index, Volumes 1-6, University Of Dayton

University of Dayton Law Review

No abstract provided.