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Articles 1 - 30 of 39
Full-Text Articles in Law
Cyber Bullying And Free Speech: Striking An Age-Appropriate Balance, Raul R. Calvoz, Bradley W. Davis, Mark A. Gooden
Cyber Bullying And Free Speech: Striking An Age-Appropriate Balance, Raul R. Calvoz, Bradley W. Davis, Mark A. Gooden
Cleveland State Law Review
Cyber bullying has generally been dealt with by the courts using one of two legal analyses: the “true threats” doctrine, or the Tinker substantial disruption test. This law review, the Cleveland State Law Review, recently published Anti-Cyber Bullying Statutes: Threat to Student Free Speech (referred to herein as “the Threat to Speech article”), which addressed these two theories, and argued that the current evolution of cyber bullying legislation simply goes too far. For example, Hayward states Anti-cyber bullying laws are the greatest threat to student speech because they seek to censor it anytime it occurs, using “substantial disruption” of school …
Post-Crisis Reconsideration Of Federal Court Reform , David R. Cleveland
Post-Crisis Reconsideration Of Federal Court Reform , David R. Cleveland
Cleveland State Law Review
While the language of crisis has diminished, the caseload volume problem continues to bedevil the federal appellate courts, and the altered process adopted describe, there are just too many cases to handle with current resources using the time-honored appellate process; there is no simple solution. The path of least resistance—sacrificing appellate standards—has proven workable and effective, and the more significant steps such as reducing appeals or increasing judicial resources have gone unadopted. Various studies and proposals of the federal court system have suggested other methods that could be used to address the problem, and these methods should be seriously considered …
Masthead, Cleveland State Law Review
Disparate Protections For American Human Trafficking Victims , Amanda Peters
Disparate Protections For American Human Trafficking Victims , Amanda Peters
Cleveland State Law Review
The federal government places victims, for the purpose of receiving protections, into two categories: first, international victims and second, American citizens or permanent residents. If an international trafficking victim qualifies to receive services as a result of having been trafficked, the United States will provide refugeelike protections through the TVPA. These protections include housing, food, cash assistance, job training, counseling, medical care, legal assistance, and other services that are available for a period of several years. Victims who are Americans, on the other hand, must find protection elsewhere. The United States government specifically excludes its own trafficked citizens from receiving …
Socioeconomic Bias In The Judiciary , Michele Benedetto Neitz
Socioeconomic Bias In The Judiciary , Michele Benedetto Neitz
Cleveland State Law Review
Judges hold a prestigious place in our judicial system, and they earn double the income of the average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This Article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the “unselfconscious cultural elitism” of judges.** This elitism can manifest as implicit socioeconomic bias. Despite the attention paid to income inequality, implicit bias research and judicial bias, no other scholar to date has fully examined the ramifications of implicit socioeconomic bias on the bench. The Article explains that socioeconomic bias …
The Blindsided Insider: Insider Trading Liability For Supervising A Rogue Trader , Adam Felsenthal
The Blindsided Insider: Insider Trading Liability For Supervising A Rogue Trader , Adam Felsenthal
Cleveland State Law Review
In the past few years, federal prosecutors and the Securities and Exchange Commission (SEC) have engaged in the widest-ranging and most successful probe of insider trading ever, focusing in particular on investment professionals. However, the government has failed to charge anyone on the basis of supervisory liability, essentially an accusation of failing to notice and stop illicit trading done under one’s supervision. This Article discusses all of the potential ways in which prosecutors could bring such a charge, ranging from SEC administrative liability to civil and criminal charges. Through the lens of a theoretical situation in which an “innocent bystander” …
Section 7433'S Statute Of Limitations: How Courts Have Wrongly Turned A Taxpayer's Exclusive Sword Into The Irs's Shield Against Damages , Diana Leyden
Cleveland State Law Review
Congress expressly authorized taxpayers to bring a private cause of action against the United States for economic damages caused by “unauthorized collection.” Codified as section 7433 of the Internal Revenue Code, this statute provides taxpayers with the exclusive remedy for abuses by IRS employees in connection with the collection of taxes. ... Despite the importance of section 7433 to check government unauthorized tortious collection activity, federal courts have turned section 7433 into a shield against excessive or unsupported IRS collection action, rather than maintain it as the small, but important, sword that Congress intended to give taxpayer. This Article contributes …
Solving A Pleading Plague: Why Federal Courts Should Strike Insufficient Affirmative Defenses Under The Twombly-Iqbal Plausibility Standard, Nathan A. Leber
Solving A Pleading Plague: Why Federal Courts Should Strike Insufficient Affirmative Defenses Under The Twombly-Iqbal Plausibility Standard, Nathan A. Leber
Cleveland State Law Review
The plausibility standard is the remedy to the rampant pleading of meritless affirmative defenses in federal courts. Set forth in Bell Atlantic Corp v. Twombly, and later clarified in Ashcroft v. Iqbal, the plausibility standard requires pleadings to contain sufficient factual allegations that give rise to a plausible claim for relief. In both Twombly and Iqbal, the Supreme Court used the plausibility approach to dismiss factually-deficient complaints. Applying the plausibility test to insufficient affirmative defenses produces the same result. The central proposition of this Note is that federal courts should analyze affirmative defenses under the Twombly-Iqbal plausibility standard. In order …
Using The Scientific Method In The Law: Examining State Interlocutory Appeals Procedures That Would Improve Uniformity, Efficiency, And Fairness In The Federal Appellate System, Hannah M. Smith
Cleveland State Law Review
[T}he current use of the federal interlocutory appeal process operates much like an appeal-less system. A pretrial motion is filed, the interlocutory order is given, and the petition for interlocutory review is usually denied. Thus, the case continues. It may continue into settlement negotiations or go to trial where the losing party files an appeal. That final appeal could find that the lower court erred, rendering that trial meritless. In reaching any of those stages, the adversely affected party more than likely devoted unnecessary time, resources, and finances in the case. Additionally, the parties are often unable to predict success …
Table Of Contents, Cleveland State Law Review
Table Of Contents, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Cleveland State Law Review
The Supreme Court’s recent decisions concerning preclusion doctrine stress the “deep-rooted historic tradition that everyone should have his own day in court.” Nonetheless, “properly conducted class actions” are a recognized exception to this general rule because such actions ensure that nonparties are “adequately represented by someone with the same interests who was a party to the suit.” Mass torts, however, frequently involve numerous plaintiffs with diverse legal and factual issues that are not “sufficiently cohesive to warrant adjudication by representation.” Thus, it may be reasonably feared that the Court’s firm insistence on preserving individual autonomy will deny plaintiffs the economies …
Buying The Electorate: An Empirical Study Of The Current Campaign Finance Landscape And How The Supreme Court Erred In Not Revisiting Citizens United, William Alan Nelson Ii
Buying The Electorate: An Empirical Study Of The Current Campaign Finance Landscape And How The Supreme Court Erred In Not Revisiting Citizens United, William Alan Nelson Ii
Cleveland State Law Review
The Article discusses how the Supreme Court erred by summarily reversing the Montana Supreme Court’s decision in Western Tradition Partnership v. AG and not revisiting its holding in Citizens United v. FEC. The Article begins by discussing the holding in the Western Tradition Partnership case and analyzing both the majority and dissenting opinions. The Article then analyzes how the Montana Supreme Court distinguished Citizens United, with the Court specifically looking at the “unique” political history in Montana and finding that Montana’s ban on corporate independent political spending served a compelling state interest and was narrowly tailored to that interest. The …
E-Jurors: A View From The Bench, Hon. Antoinette Plogstedt
E-Jurors: A View From The Bench, Hon. Antoinette Plogstedt
Cleveland State Law Review
This Article provides a comparative analysis of foreign jury systems and reviews the history of juries. The Article then explores emerging technology and its effect upon electronic juror misconduct. It further identifies juror misconduct resulting from innovative technology. The Article assesses solutions initiated in various U.S. state and federal jurisdictions. The Article reviews the role of more active juries, which incorporate note taking and jury notebooks. The Article analyzes the process of juror questioning and pre-deliberation juror discussions. The Article evaluates initiatives developed in various jurisdictions to deter juror misconduct by confiscating cell phones and improving jury instructions. Finally, this …
Shame: A Different Criminal Law Proposal For Bullies, Xiyin Tang
Shame: A Different Criminal Law Proposal For Bullies, Xiyin Tang
Cleveland State Law Review
Public concern over bullying has reached an all-time high. The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly publicized prosecution of Dharun Ravi, who was convicted of fifteen counts and faced the possibility of ten years in prison. This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying. However, recently-enacted “cyber bullying” laws, which give complete discretion to school administrators, are weak and ineffective. I propose another solution: first, to …
Justice William J. Brennan, Jr., James Wilson, And The Pursuit Of Equality And Liberty, Deborah A. Roy
Justice William J. Brennan, Jr., James Wilson, And The Pursuit Of Equality And Liberty, Deborah A. Roy
Cleveland State Law Review
This Article analyzes the jurisprudence of one of the most transformative Supreme Court Justices, William J. Brennan, Jr., from the perspective of his vision that the United States Constitution is founded on Human Dignity. Justice Brennan expressed this principle in his opinions that advanced the realization of individual rights for each and every American. The principle of human dignity invokes the values of equality and liberty. The article shows that Justice Brennan traced the principle of human dignity back to the Founding Fathers and the constitutional government that they established. Rather than being unhinged from the Constitution as his critics …
Straightforward On Its Face But Mindbending In Its Application: Juror Concurrence In Criminal Trials, Stephen Ehrlich
Straightforward On Its Face But Mindbending In Its Application: Juror Concurrence In Criminal Trials, Stephen Ehrlich
Cleveland State Law Review
Ever since In re Winship in 1970, it is well settled that the Due Process Clause requires a jury to find “proof beyond a reasonable doubt of every fact necessary to constitute the crime.” But as axiomatic as this holding may seem, the distinction between necessary facts of a crime and “mere means” of its commission has confounded courts for years. The Supreme Court, recognizing the need to re-address such an important issue, attempted to provide some guidance in this area through two landmark cases decided just before the turn of the twenty first century: Schad v. Arizona and Richardson …
A Last Step Rule For Direct Infringement Of Process Claims: Clarifying Indirect Infringement And Narrowing Joint Infringement, Stephen W. Moore
A Last Step Rule For Direct Infringement Of Process Claims: Clarifying Indirect Infringement And Narrowing Joint Infringement, Stephen W. Moore
Cleveland State Law Review
This Note proposes that the party who performs the last step of a patented process should be liable for direct infringement. Under this “Last Step Rule,” patented products and processes would be treated similarly—which is consistent with past decisions and is implied in the patent statute. As will be shown in this Note, adopting the Last Step Rule would make finding indirect patent infringement more straightforward and would limit the doctrine of joint infringement to claims for direct infringement. The proposed rule will be shown to be logically sound, supported by case law precedent, and consistent with the language and …
Copyright Notice, Cleveland State Law Review
Copyright Notice, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Table Of Contents, Cleveland State Law Review
Table Of Contents, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
"I'M Not Quite Dead Yet!": Rethinking The Anti-Lapse Redistribution Of A Dead Beneficiary's Gift, Eloisa C. Rodriguez-Dod
"I'M Not Quite Dead Yet!": Rethinking The Anti-Lapse Redistribution Of A Dead Beneficiary's Gift, Eloisa C. Rodriguez-Dod
Cleveland State Law Review
A persistent challenge in law is how to achieve the necessary balance between individual decision-making and societal goals. This struggle of autonomy versus societal goals manifests itself in the context of anti-lapse law for wills and trusts. This article highlights how the current rules of construction regarding anti-lapse statutes fail both the goal of implementing intent and ensuring societal goals. An examination of the current statutes demonstrates that they are flawed, controversial, and, at times, result in inconsistent application. The current statutory scheme leads to unanswered questions: Should statutes presuppose distributions when an instrument does not explicitly address the specific …
Medicaid Expansion, The Patient Protection And Affordable Care Act, And The Supreme Court's Flawed Spending Clause Coercion Reasoning In National Federation Of Independent Business V. Sebelius, L. Darnell Weeden
Cleveland State Law Review
The issue to be addressed is whether the Patient Protection and Affordable Care Act’s (ACA or “Obamacare”) manifest goal of promoting the general welfare of the nation by encouraging states to expand their existing Medicaid plans is a coercive use of Congress’ power under the Spending Clause if the federal government permanently picks up at least 90 percent of the cost of the expansion. The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” To make certain that federal money given to the States is used …
The Good, The Bad, And A New Kind Of Prenup: An Analysis Of The Ohio Legacy Trust Act And What Asset Protection Trusts Will Mean For Ohio, Kevin R. Mckinnis
The Good, The Bad, And A New Kind Of Prenup: An Analysis Of The Ohio Legacy Trust Act And What Asset Protection Trusts Will Mean For Ohio, Kevin R. Mckinnis
Cleveland State Law Review
It is human nature to want to protect what one has worked hard to earn or accomplish. It is this very nature that entices individuals to search for creative methods by which to protect one’s assets, whether from high tax rates or creditors. As laws continually change, individuals strive to protect their assets in the most effective and secure manner possible. As a result, the protection of one’s assets has evolved from the use of offshore Asset Protection Trusts (APTs) to the use of domestic APTs (DAPT). The Ohio Legacy Trust Act is an attempt to modernize Ohio’s wealth management …
Masthead, Cleveland State Law Review
Copyright Notice, Cleveland State Law Review
Copyright Notice, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Interpreting Precise Constitutional Text: The Argument For A “New” Interpretation Of The Incompatibility Clause, The Removal & Disqualification Clause, And The Religious Test Clause—A Response To Professor Josh Chafetz’S Impeachment & Assassination, Seth Barrett Tillman
Cleveland State Law Review
In an article in another journal, Professor Josh Chafetz wrote: “[I]mpeachment maintains the link between removal and death, but attenuates it. . . . Impeachment is . . . a political death—a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning. But before doing so, I think it might be …
Striking A Balance: Why Ohio's Felony-Arrestee Dna Statute Is Unconstitutional And Ripe For Legistlative Action, Brendan Heil
Striking A Balance: Why Ohio's Felony-Arrestee Dna Statute Is Unconstitutional And Ripe For Legistlative Action, Brendan Heil
Cleveland State Law Review
This Note argues that Ohio’s felony-arrestee DNA statute violates Article I, section 14 of the Ohio Constitution and the Fourth Amendment to the United States Constitution. The initial physical swab and the subsequent database searches of an arrestee’s DNA sample, while the arrestee is in custody or being prosecuted, do not violate the Fourth Amendment. However, the inclusion of an innocent person’s DNA in Ohio’s DNA database, subject to repeated searches over time, violates both the Ohio and federal constitutional protections against unreasonable searches. Broadly written DNA statutes trample people’s civil rights, and more carefully drawn legislation could meet the …
Copyright Notice, Cleveland State Law Review
Copyright Notice, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Table Of Contents, Cleveland State Law Review
Table Of Contents, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Making The Fair Sentencing Act Retroactive: Just Think Of The Savings . . . Clause, Jeff Lazarus
Making The Fair Sentencing Act Retroactive: Just Think Of The Savings . . . Clause, Jeff Lazarus
Cleveland State Law Review
This article advocates for the retroactive application of the Fair Sentencing Act. Part II of this Article will detail the history of the federal crack cocaine sentencing laws, from 1986 through the passage of the Fair Sentencing Act. Part III will detail the recent cases dealing with attempts at retroactivity in the lower courts. Part IV outlines the Supreme Court’s holding in United States v. Dorsey, which was a ground-breaking step towards the FSA’s retroactive effect. Part V offers arguments in support of retroactivity. Part VI offers legal challenges in which inmates can seek relief in the courts. In Part …
Toward A Unitary Commerce Clause: What The Negative Commerce Clause Reveals About The Commerce Power, Donald L. R. Goodson
Toward A Unitary Commerce Clause: What The Negative Commerce Clause Reveals About The Commerce Power, Donald L. R. Goodson
Cleveland State Law Review
The Supreme Court’s recent Commerce Clause cases have acknowledged that in order to give full effect to the values of federalism embedded in the Constitution and the related notion that the national government is one of limited powers, some limitation on the commerce power is needed. But without an understanding of why we have the Commerce Clause in the first place, it is difficult to articulate a limitation of the power, much less one that furthers the values of federalism. Unfortunately, the Court’s own precedent in the affirmative Commerce Clause context does not provide doctrinal support for a functionalist approach …