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1996

Cleveland State University

Articles 1 - 30 of 60

Full-Text Articles in Law

Making The Move From Law Practitioner To Law Professor, Or How Not To Simplify Your Life, Susan J. Becker Oct 1996

Making The Move From Law Practitioner To Law Professor, Or How Not To Simplify Your Life, Susan J. Becker

Law Faculty Articles and Essays

The author discusses her transition from litigation practice to teaching law. She concludes that there are three discrete yet connected components of a law professor's job which closely parallel that of a litigator: teaching, administrative service, and scholarship.

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Eve Without Adam: What Genesis Can Teach America About The Natural Law, David F. Forte Aug 1996

Eve Without Adam: What Genesis Can Teach America About The Natural Law, David F. Forte

Law Faculty Articles and Essays

I wish to make but three points. First, I want to discuss something of the history of the alliance between faith and reason in Western intellectual history and their estrangement. Second, by referring to some of the elements of the Book of Genesis, I would like to affirm the basic compatibility between the principles of natural law and the values of our religious heritage. Finally, I raise a caution regarding religious doctrine and liberty that any effective and principled alliance between faith and reason must deal with.

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The Illiberal Court, David F. Forte Jul 1996

The Illiberal Court, David F. Forte

Law Faculty Articles and Essays

Justice Scalia casts up a dire warning that not only has the Supreme Court in many ways removed the Constitution from the Framers, it is also removing the democratic process from the people and their representatives.

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One Way To Be Born? Legislative Inaction And The Posthumous Child, Karin M. Mika Jul 1996

One Way To Be Born? Legislative Inaction And The Posthumous Child, Karin M. Mika

Law Faculty Articles and Essays

This article argues that the posthumous child and the rights and responsibilities relating to such a child are directly related to the fundamental right to procreate. It argues that legislation must necessarily incorporate that right in sorting out issues related to the posthumous child and deviate from the standard principles of contract laws which have been applied in the past. This article examines the history, case law, federal decisions, and current legislation pertaining to artificial insemination. It argues that such legislation is inadequate and that legislatures must act promptly to address the realities of the posthumous child.

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Cognitive Theory And The Selling Of The Flat Tax, Deborah A. Geier Apr 1996

Cognitive Theory And The Selling Of The Flat Tax, Deborah A. Geier

Law Faculty Articles and Essays

In this article, Professor Deborah A. Geier brings to bear the insights of Professor Edward J. McCaffery, regarding the interaction of cognitive theory and the tax world, to the flat tax proposal. The article explores how the perceptual biases described by Professor McCaffery might affect both taxpayers' impressions of the contours of the proposed tax base and their behavioral reponses to the same incentive. The author warns that any errors in her application of Professor McCaffery's work to the flat tax are entirely her own.

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Hazardous Jurisdiction/Chatham Steel Corporation V. Brown: A Note On Personal Jurisdiction And Cercla, Martin A. Mccrory Jan 1996

Hazardous Jurisdiction/Chatham Steel Corporation V. Brown: A Note On Personal Jurisdiction And Cercla, Martin A. Mccrory

Cleveland State Law Review

In 1986, the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) was amended to include, among other things, a provision for nationwide service of process. This provision greatly increased the choice of federal forums in which to sue defendants in CERCLA cases. In Chatham v. Brown, the court broke from this line of thinking and analyzed the case using a traditional constitutional Due Process analysis. Although the Chatham court ultimately held that it had personal jurisdiction over the defendants, the analysis it used may be a harbinger of things to come. That is to say, the constitutional analysis in Chatham …

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Application Of U.S. Supreme Court Doctrine To Anonymity In The Networld, George H. Carr Jan 1996

Application Of U.S. Supreme Court Doctrine To Anonymity In The Networld, George H. Carr

Cleveland State Law Review

There are still many issues to be resolved about the Internet's unique status as a media technology and its legal status under current law. Debate over the propriety, necessity, and legality of anonymous speech has been protracted and pervasive. Indeed, this debate has extended to all corners of the Internet. The main source material for this Note is the recent case of McIntyre v. Ohio Elections Comm'n, in which the Supreme Court confirmed its continuing commitment to preservation of the right to free speech, and interpreted the First Amendment to protect much anonymous speech. This Note will quantify how the …

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Pharmaceuticals: The Battle For Control In The 21st Century, Rachel F. Ochs Jan 1996

Pharmaceuticals: The Battle For Control In The 21st Century, Rachel F. Ochs

Journal of Law and Health

To explore these concepts, this paper focuses on the Japanese motivation for taking control in the pharmaceutical industry and efforts that the US can take to ensure its role as a leader in the pharmaceutical industry. First, the paper discusses how Japan is poised to invade the US pharmaceutical market, reasons for Japanese entry into the market, the Japanese focus on research, recent examples of Japanese expansion and how US policy may affect Japanese expansion into the pharmaceutical market. The next section describes the need for the FDA to protect consumer interests in the US since market forces and / …

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Essay: The Challenge Of Providing Adequate Housing For The Elderly...Along With Everyone Else, Alan C. Weinstein Jan 1996

Essay: The Challenge Of Providing Adequate Housing For The Elderly...Along With Everyone Else, Alan C. Weinstein

Journal of Law and Health

Finally, it seems fittingly ironic that a culture as youth-obsessed as ours faces a demographic future in which those over sixty-five will outnumber those under fourteen for the first time in our history. Irony aside, we are ill-prepared to deal with this new reality on several counts, not the least of which is the failure of our patterns of land use and development to accommodate the changed housing needs of an aging population. Primary among these needs is the stated desire of the elderly to be able to "age in place." To meet this need, America's suburban communities in particular …

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Joining A Cult: Religious Choice Or Psychological Aberration, Dena S. Davis Jan 1996

Joining A Cult: Religious Choice Or Psychological Aberration, Dena S. Davis

Journal of Law and Health

In this article, I will analyze the different theories about "cult" membership and conversion, specifically focusing upon whether or not conversions to cults ought to be respected by the law in the same way that the law respects conversion to be respected by the law in the same way that the law respects conversion to and membership in, mainstream religions. In section II, I attempt (unsuccessfully) to define a "cult". In section III, I discuss the civil liberties issues surrounding "cults" and the public furor they have engendered. In section IV, I discuss the different and competing theories about why …

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Surgery By An Unauthorized Surgeon As A Battery, Thomas Lundmark Jan 1996

Surgery By An Unauthorized Surgeon As A Battery, Thomas Lundmark

Journal of Law and Health

This article examines the policy issues behind the doctrine of informed consent and reviews the decisional law and policies on the topic of ghost surgery. Jury instructions employed in California are also addressed. The author concludes that substitution of surgeons should not automatically prompt liability for a battery. The public policy behind the informed consent doctrine is to favor patients' self-determination over the doctor's paternalism. Imposition of liability for battery in a case where the defendant does not knowingly deviate from the consent is not necessary to effectuate this purpose.

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Meeting The Objectives Of The Mda: Implied Preemption Of State Tort Claims By The Medical Device Amendments, Theresa J. Pulley Radwan Jan 1996

Meeting The Objectives Of The Mda: Implied Preemption Of State Tort Claims By The Medical Device Amendments, Theresa J. Pulley Radwan

Journal of Law and Health

This article attempts to reconcile the competing purposes of the MDA, and to offer one alternative to effectuate Congress' purposes without preempting some claims and permitting others. First, this article will describe the arrangement of the MDA, including the classification provisions for medical devices and the preemption provision of the MDA. Next, this article will interpret the caselaw regarding preemption in general, and specifically preemption of state tort claims by the MDA. Finally, this article seeks to reconcile two competing purposes of Congress in enacting the MDA through implied preemption of state tort claims, with exceptions for devices which have …

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The Politics Of Reducing Tobacco Use Among Children And Adolescents: Why The Food And Drug Administration Cannot Regulate Tobacco And A Proposed Policy For States And Local Communities, Timothy J. Degeeter Jan 1996

The Politics Of Reducing Tobacco Use Among Children And Adolescents: Why The Food And Drug Administration Cannot Regulate Tobacco And A Proposed Policy For States And Local Communities, Timothy J. Degeeter

Journal of Law and Health

This paper will reveal that although the FDA has a compelling argument from a public health point of view to regulate tobacco products, the proposed federal rule is beyond the scope of the FDA's authority. The FDA cannot unilaterally assert jurisdiction over tobacco products in order to implement restrictions for children and adolescents without specific Congressional action. Instead, Congress has specifically delegated such regulatory authority to the states. Moreover, the proposed rule lacks necessary enforcement mechanisms to adequately keep tobacco products out of the hands of children and adolescents.

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The Communications Assistance For Law Enforcement Act And Protection Of Cordless Telephone Communications: The Use Of Technology As A Guide To Privacy, Basil W. Mangano Jan 1996

The Communications Assistance For Law Enforcement Act And Protection Of Cordless Telephone Communications: The Use Of Technology As A Guide To Privacy, Basil W. Mangano

Cleveland State Law Review

While it is now illegal to intentionally intercept cordless telephone conversations, cordless telephone users have not always been protected. Prior to October 1994 the Federal Wiretap Act did not protect cordless telephone users from private persons or law enforcement agencies who intentionally intercepted their conversations. In fact, the Electronic Communications Privacy Act of 1986 (ECPA) amended Title III of the of the Omnibus Crime Control and Safe Streets Act of 1968 to expressly exclude cordless telephone transmissions from the definition of "wire" and "electronic" communications. With the advent of new cordless technology and the ubiquitousness of the cordless telephone, Congress …

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Restricting Donative Choice: Fetal Tissue Transplantation And Respect For Human Life, Joanna H. Kinney Jan 1996

Restricting Donative Choice: Fetal Tissue Transplantation And Respect For Human Life, Joanna H. Kinney

Journal of Law and Health

I propose that a woman who becomes pregnant with the intent to abort will be treated as an initial aggressor, and as such she will be denied the "abortion exception" that will be granted to the woman who aborts an accidental, unwanted pregnancy. Moreover, I shall argue that a woman should not be allowed to designate the donee of the fetal tissue from her abortion, even though her pregnancy was accidental. Without this restriction, a woman who intends to become pregnant and abort may simply claim her pregnancy was accidental, and thereby claim the exception. Central to this study is …

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Is Law The Prescription That Can Cure Medicine?, Samuel Gorovitz Jan 1996

Is Law The Prescription That Can Cure Medicine?, Samuel Gorovitz

Journal of Law and Health

Now medical care has been transformed. We recognize that the human organism is a complex interaction of many different systems-respiratory, circulatory, neurological, digestive, and so on. Some of them can fail and create both problems and opportunities we did not formerly have. One of the opportunities we now have is that we can keep people alive who in an earlier era would not have survived. And one of the problems we now have is also that we can keep people alive who in an earlier era would not have survived. Some of them are kept alive with such diminished capacity …

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A Framework For Analysis Of Erisa Preemption In Suits Against Health Plans And A Call For Reform, Susan O. Scheutzow Jan 1996

A Framework For Analysis Of Erisa Preemption In Suits Against Health Plans And A Call For Reform, Susan O. Scheutzow

Journal of Law and Health

This article provides a framework for an analysis of ERISA preemption of suits against health plans. The types of decisions made by health plans will be categorized and ERISA preemption concepts applied to this categorization to determine the points in inequity between ERISA regulated health plans and non-ERISA regulated health plans. This article will then review the problems inherent in relying upon the malpractice area as the primary remedy for beneficiaries seeking care under ERISA regulated and non-ERISA regulated plans and identify a number of key points for reform.

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Therapists' Liability To The Falsely Accused For Inducing Illusory Memories Of Childhood Sexual Abuse - Current Remedies And A Proposed Statute, Joel Jay Finer Jan 1996

Therapists' Liability To The Falsely Accused For Inducing Illusory Memories Of Childhood Sexual Abuse - Current Remedies And A Proposed Statute, Joel Jay Finer

Journal of Law and Health

While sexual abuse of children has always been a real and horrific phenomenon (a fact unrecognized until relatively recently), the issue this Article will explore is whether, and under what circumstances, a person wrongly accused has, or should have, one or more causes of action against a therapist for culpably inducing the pseudomemory. To refine and make more rational legal actions by persons falsely accused of childhood sexual molestation (arguably justified under existing legal doctrine), this Article will propose specific legislation authorizing a lawsuit under codified circumstances and conditions.

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Commercial Exploitation Or Protected Use? Stern V. Delphi Internet Services Corporation And The Erosion Of The Right Of Publicity, Karin M. Mika, Aaron J. Reber Jan 1996

Commercial Exploitation Or Protected Use? Stern V. Delphi Internet Services Corporation And The Erosion Of The Right Of Publicity, Karin M. Mika, Aaron J. Reber

Law Faculty Articles and Essays

This article addresses the repercussions of Stern v. Delphi Internet Services Corporation and argues that the decision in Stern opens the door to a broader interpretation of “newsworthiness” and “public interest” that will enable advertisers broader First Amendment protections when using “unauthorized” likenesses. This article posits that artful advertisers could very well use the theory of Stern as a basis for virtually ensuring that every “unauthorized likeness” will enjoy First Amendment protection and not be considered as violative of the right of publicity.

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Judicial Reform Of Habeas Corpus: The Advocates' Lament, Christopher E. Smith Jan 1996

Judicial Reform Of Habeas Corpus: The Advocates' Lament, Christopher E. Smith

Cleveland State Law Review

The U. S. Supreme Court has engineered significant changes in habeas corpus procedures. Any change in law or public policy has consequences for the human beings whose lives come into contact with the changed law or policy. Critics have accused the Rehnquist Court of "dismantling access to federal habeas corpus review guaranteed by statute since 1867." As a result, concerns have emerged regarding the consequences for potential petitioners whose claims can no longer be reviewed by federal judges. While the fate of death row inmates is the most important consequence of habeas corpus reform, anecdotal reports on these controversial cases …

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Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs Jan 1996

Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs

Cleveland State Law Review

Starting with the idea that Judeo-Christian principles played a significant role in the development of American legal ethics, the author uses the writings of Moses as a lens to examine some challenges in judging. Moses authored the first five books of the Old Testament known as the Pentateuch or books of the law-Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. The author begins by suggesting a caveat and an approach to interpretation. When examining the writings of Moses, we are not necessarily seeking a literal application. He suggests instead, that when looking at the writings of Moses, three questions should be answered: …

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Branding The Sexual Predator: Constitutional Ramifications Of Federal Rules Of Evidence 413 Through 415, Margaret C. Livnah Jan 1996

Branding The Sexual Predator: Constitutional Ramifications Of Federal Rules Of Evidence 413 Through 415, Margaret C. Livnah

Cleveland State Law Review

This Note seeks to address both the potential constitutional consequences of the newly passed Federal Rules of Evidence 413 and 414 and the problems that these revisions were designed to remedy. Section II will introduce the history of the passage of these controversial revisions as primarily a political process and one which bypassed the standard rules of practice. Section III will address the procedural violations and the troubling inconsistency of the new rules with the federal courts' interpretation of the other Federal Rules of Evidence. Section IV of this Note will address the substantive constitutional issues presented by these amendments, …

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Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs Jan 1996

Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs

Law Faculty Articles and Essays

I would like to use the writings of Moses as a lens to examine some challenges in judging. Moses authored the first five books of the Old Testament known as the Pentateuch or books of the law--Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. He is probably best known for leading the Hebrew people out of bondage in Egypt and for receiving the Ten Commandments. As our discussion today will reveal, he may also be credited with authoring some significant principles with respect to the judicial function.

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Therapists' Liability To The Falsely Accused For Inducing Illusory Memories Of Childhood Sexual Abuse: Current Remedies And A Proposed Statute, Joel J. Finer Jan 1996

Therapists' Liability To The Falsely Accused For Inducing Illusory Memories Of Childhood Sexual Abuse: Current Remedies And A Proposed Statute, Joel J. Finer

Law Faculty Articles and Essays

No issue in law and psychiatry has engendered such controversy as the current debate over whether experiences of childhood sexual abuse (CSA) are subject to repression for decades and eventually "recoverable" in therapy long after the event. One principal legal issue has been whether such "recovery" justifies the application of the "recent discovery" basis for tolling the statute of limitations, an issue which becomes significant when an adult psychotherapy patient sues her ostensible molester (often her father or other family member).

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Social Contract Theory, Welfare Reform, Race, And The Male Sex-Right, April L. Cherry Jan 1996

Social Contract Theory, Welfare Reform, Race, And The Male Sex-Right, April L. Cherry

Law Faculty Articles and Essays

In this article, Cherry argues that the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) is ultimately a politically undesirable and thinly veiled attack on the reproductive and sexual activities of poor women. In Part I, Cherry examines the development of social contract theory and analyzes social contract theory as a justification for material inequality. Part II examines social contract theory as a justification for the subordination of women. With this theoretical background established, in Part III, Cherry evaluates the current welfare reform proposals as social contract. This section examines the social contractarian language found in the current …

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Joining A "Cult": Religious Choice Or Psychological Aberration?, Dena S. Davis Jan 1996

Joining A "Cult": Religious Choice Or Psychological Aberration?, Dena S. Davis

Law Faculty Articles and Essays

In this article, I will analyze the different theories about "cult" membership and conversion, specifically focusing upon whether or not conversions to cults ought to be respected by the law in the same way that the law respects conversion to and membership in, mainstream religions. In section II, I attempt (unsuccessfully) to define a "cult." In section III, I discuss the civil liberties issues surrounding "cults" and the public furor they have engendered. In secion IV, I discuss the different and competing theories about why young people join "cults," and the implications of those theories for public polic responses. Finally, …

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Altruism In The International Environment, Lea Brilmayer Jan 1996

Altruism In The International Environment, Lea Brilmayer

Cleveland State Law Review

My topic is foreign aid, certain of the attitudes that we have towards foreign aid, and what if any moral grounding those attitudes might have. While it is likely that the most drastic proposals to slash the foreign aid budget will be defeated, there is no denying that some fairly drastic measures are on the table and are being taken rather seriously. Regardless of what happens in Congress this year, and regardless of what our president decides to do about any measures that Congress does adopt, the issue is likely to crop up as important during the next presidential election. …

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On The Abolition Of Man: A Discussion Of The Moral And Legal Issues Surrounding The Death Penalty, Thomas J. Walsh Jan 1996

On The Abolition Of Man: A Discussion Of The Moral And Legal Issues Surrounding The Death Penalty, Thomas J. Walsh

Cleveland State Law Review

This article examines the moral and practical arguments supporting the death penalty in an effort to show why the United States should join other Western nations in the abolition of the death penalty. First, this article explores the historical context of the death penalty in the United States and examines the current status of constitutional doctrine on the death penalty. Next, because an analysis of the arguments for and against the death penalty are invariably charged with moral issues, an effort will be made to examine the moral aspects of the death penalty. The arguments offered in support of the …

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The Violence Against Women Act After United States V. Lopez: Will Domestic Violence Jurisdiction Be Returned To The States, Stacey L. Mckinley Jan 1996

The Violence Against Women Act After United States V. Lopez: Will Domestic Violence Jurisdiction Be Returned To The States, Stacey L. Mckinley

Cleveland State Law Review

Recent judiciary and media events have put a national focus on the overlooked problem of domestic violence. Federal lawmakers admirably responded to this attention in an aggressive manner when Congress passed the Violence Against Women Act (VAWA). Although little doubt exists that this country needs to reduce domestic violence, this sweeping federal legislation may not be the most effective means. The hasty response by federal lawmakers is unconstitutional in consideration of the Supreme Court's recent holding in Lopez. Although initial court challenges to the VAWA on Lopez grounds have resulted in split decisions, this Note argues that portions of the …

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Amending The Constitution: Just Not Every November, Brendon Troy Ishikawa Jan 1996

Amending The Constitution: Just Not Every November, Brendon Troy Ishikawa

Cleveland State Law Review

Professor Akhil Amar has defended the idea that Americans may amend the Constitution regardless of Article V's dictates. Professor Amar does not stand alone on this claim. Professor Bruce Ackerman not only agrees, but would actually prefer direct popular amendment over the express Article V procedures. Their arguments, however, ignore the Framers' careful balancing of federal and popular principles in Article V by embracing only the democratic populist aspect of the Constitution. Part I of this Article examines and critiques Professor Amar's argument that the people may directly amend the Constitution without having to comply with Article V. An examination …

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