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Articles 1 - 30 of 52
Full-Text Articles in Law
School Principals And New York Times: Ohio's Narrow Reading Of Who Is A Public Official Or Public Figure, Andrew L. Turscak Jr.
School Principals And New York Times: Ohio's Narrow Reading Of Who Is A Public Official Or Public Figure, Andrew L. Turscak Jr.
Cleveland State Law Review
The United States Supreme Court has promulgated the rule that plaintiffs in defamation cases who are either public officials or public figures must prove that an alleged defamatory statement was made with "actual malice."' Those individuals who have achieved public official or public figure status have a higher burden of proof than ordinary plaintiffs; they must show that a defamatory falsehood was made "with knowledge that it was false or with reckless disregard of whether it was false or not." The Supreme Court has not listed which government employees qualify for public official status, but it has provided some guidance. …
Biomedical And Behavioral Research On Juvenile Inmates: Uninformed Choices And Coerced Participation, Brian Paul Wyman
Biomedical And Behavioral Research On Juvenile Inmates: Uninformed Choices And Coerced Participation, Brian Paul Wyman
Journal of Law and Health
The question that will be addressed here is whether juvenile inmates can voluntarily give informed consent to participate in biomedical and behavioral research. Further, can juvenile inmates act voluntarily in the midst of coercion used by researchers to persuade the subjects to participate, and coercion that is inherent in the nature of being a juvenile inmate? Can consent be informed when a juvenile inmate's comprehension and understanding of what biomedical and behavioral research entails is limited by age and maturity level? Finally, even if juvenile inmates are deemed capable to give voluntary informed consent to biomedical and behavioral research, is …
Defining Willful Remuneration: How Bryan V. United States Affects The Scienter Requirement Of The Medicare/Medicaid Anti-Kickback Statute, Robb Degraw
Journal of Law and Health
At the forefront of the debate over the anti-kickback statute, and the topic of this Note, is the mens rea, or mental state, that is required for a violation of the law. According to the statute, an individual must "knowingly and willfully" solicit or receive, or offer to pay, remuneration in order to induce business reimbursed under any federal health care program. The interpretation of these terms by the federal courts has varied wildly, as have the underlying Supreme Court cases cited as precedent for such interpretations. However, in June of 1998, the Supreme Court defined the meaning of "willfully" …
How Federal Transfer Taxes Affect The Development Of Property Law , Ira Mark Bloom
How Federal Transfer Taxes Affect The Development Of Property Law , Ira Mark Bloom
Cleveland State Law Review
This topic, How Federal Transfer Taxes Affect the Development of Property Law, makes the basic assumption that, to some extent, property law exists because of the federal wealth transfer tax system. As will be seen, this assumption is correct. In some instances, however, property laws exist because of the federal transfer tax system. I classify such property laws into three categories: the necessary, the appropriate and the unfortunate. In the remainder of this article, I will give examples of federal transfer tax-based property laws in these three categories. By way of illustration, I will primarily rely on statutory laws of …
Employer Sponsored Health Benefit Plans Under Erisa After Pegram V. Herdrich: The Fiduciary Duty Argument And Mixed Eligibility Versus Treatment Decisions, Jack E. Karns
Journal of Law and Health
Accordingly, this Article is a rebuttal to the Supreme Court's opinion in Pegram v. Herdrich on the strength of two primary arguments. First, the Seventh Circuit's rationale was on-point and extremely sound in concluding that HMOs do stand as trustees as envisioned by the ESBP and cannot offer kickback payments to physicians simply to increase shareholder wealth at the expense of patient health and welfare. This was a textbook example of breach of fiduciary duty given the medical trust relationship between physician and patient. Had the HMO offered a hedge fund option using securities from firms other than itself, there …
Genetic Research: Are More Limitations Needed In The Field, Kristie Sosnowski
Genetic Research: Are More Limitations Needed In The Field, Kristie Sosnowski
Journal of Law and Health
This Note will focus on the medical achievements that have been made, in large part, because of advances in genetic research. Specifically, this Note will focus on the genetic advances associated with the Human Genome Project, Gene Therapy, Genetic Testing, and Human Embryonic Stem Cell Research. The last year of the twentieth century brought scientists one step closer to the successful completion of the Human Genome Project. The Human Genome Project is a government-funded project with the underlying goal of sequencing and mapping the entire human genome. Scientists believe that the completion of this project will aid them in answering …
Re-Orienting Law And Sexuality , Ratna Kapur, Tayyab Mahmud
Re-Orienting Law And Sexuality , Ratna Kapur, Tayyab Mahmud
Cleveland State Law Review
This symposium issue of the Cleveland State Law Review emerges from the Reorienting Law and Sexuality Conference hosted by Cleveland-Marshall College of Law in October 1999. The symposium locates itself as a continuation of the discourse that surfaced in the American legal academy in 1979 with a symposium issue of the Hastings Law Review. It is a discourse that brings into sharp relief technologies of power and strategies of resistance that contend at all sites where law aims to regulate human sexuality. While the initiative of 1979 was further cultivated by other forums of knowledge production within the American legal …
The Strengths And Weaknesses Of Local Human Rights Ordinances, Robert Salem
The Strengths And Weaknesses Of Local Human Rights Ordinances, Robert Salem
Cleveland State Law Review
This panel will discuss the prospects and perils of local human rights initiatives. Specifically, I will talk about the nature of these local initiatives and their advantages and disadvantages. Time permitting, I will also talk about our successful effort last year in Toledo, Ohio to pass a human rights ordinance that includes sexual orientation as a protected category, and why it is so crucial that lawyers and law professors become involved in these local campaigns. I believe that with determination, most communities can achieve what we did in Toledo. Local human rights ordinances (HROs) take a variety of forms, and …
Legal Challenges To And By Sex Workers/Prostitutes , Amalia Lucia Cabezas
Legal Challenges To And By Sex Workers/Prostitutes , Amalia Lucia Cabezas
Cleveland State Law Review
Sex worker is a term that emerges from a particular historical and political juncture. It reflects a change in consciousness imbedded in the political struggles of women prostitutes. In this article, I trace the genealogy of the term to the 1960s, when major changes occurred in the role of women in society and in the reconceptualization of what were heretofore known as "deviant" sexualities. I then shift attention to the Caribbean, where I apply the term to the advent of sex tourism and the development of a sex workers' movement linked to a human rights agenda.
Second-Parent Adoption, Patricia J. Falk
Second-Parent Adoption, Patricia J. Falk
Cleveland State Law Review
My topic for today's presentation is second-parent adoption. I hope to accomplish four things in my discussion. First, I will define second-parent adoption and give some reasons that it is desirable for both parents and children. Second, I will summarize the state of the law in terms of legislative enactments and case law in the United States. Third, I will discuss the role of social science in second-parent adoption cases. Finally, I will discuss some of the implications of recognizing these adoptions.
The First Amendment's Petition Clause As An Alternative Basis For Challenging Voter Initiatives That Burden The Enactment Of Anti-Discrimination Protection For Gays, Lesbians, And Bisexuals, Kevin Francis O'Neill
The First Amendment's Petition Clause As An Alternative Basis For Challenging Voter Initiatives That Burden The Enactment Of Anti-Discrimination Protection For Gays, Lesbians, And Bisexuals, Kevin Francis O'Neill
Cleveland State Law Review
The purpose of my remarks today is to suggest that the First Amendment-specifically, the Petition Clause of the First Amendment provides an alternative basis for vindicating gay, lesbian, and bisexual rights in certain cases. At least in the context of voter initiatives that seek to abolish anti-discrimination protection for sexual orientation, the Petition Clause is a promising alternative to equal protection and substantive due process. My objective here was merely to plant a seed: to identify an alternative basis for vindicating the rights of gays, lesbians, and bisexuals-especially when combatting homophobic voter initiatives like those in Romer and Cincinnati. It's …
Straight Release: Justice Delayed, Justice Denied , Timothy J. Mcginty
Straight Release: Justice Delayed, Justice Denied , Timothy J. Mcginty
Cleveland State Law Review
This Thesis discusses the ‘straight release’ program implemented by the Cleveland Police Department in the late 1990’s. It starts by describing the 24-hour charge or release rule, and how criminals were arrested, released, and arraignment notices were later sent to them by mail. Criminals used aliases to hinder the indictment procedure. Part V discusses national trends in arrest to disposition rates. Parts VI – X discusses Cleveland practices in the criminal justice system. Part XI discusses the effects of failure to identify arrested suspects before releasing them. Part XII describes the chaos of the municipal court. Part XIII discusses the …
Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden
Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden
Cleveland State Law Review
Part I of this Article examines the first question, what does it mean for evidence to have "apparent exculpatory value?" Part II of this Article answers the second question, when does Youngblood's bad faith requirement apply in failure to preserve evidence cases? Part III then seeks to determine the substance of Youngblood's bad faith requirement and identify the best approach to defining it. Ultimately, this Article argues that there are three common mistakes that courts make when applying Trombetta and Youngblood.
The Religious Liberty Protection Act: The Validity Of Using Congress' Commerce And Spending Powers To Protect Religion, Jennifer Dorton
The Religious Liberty Protection Act: The Validity Of Using Congress' Commerce And Spending Powers To Protect Religion, Jennifer Dorton
Cleveland State Law Review
Although the Religious Liberty Protection Act appears, on its face, to be simple, there are many constitutional issues which call into question the validity of the proposed bill. This note will focus on the constitutional problems of using Congress' commerce and spending powers to protect religion. It will examine the problem of attaching religious conditions to the States' receipt of federal funds, and the potential problem that may result from using the spending power to protect religious exercise. The note then turns to the commerce clause justification for the RLPA. It will point out the major flaw in using the …
Trademarks And The Movies: An Af-'Fair Use To Remember, Lauren P. Smith
Trademarks And The Movies: An Af-'Fair Use To Remember, Lauren P. Smith
Cleveland State Law Review
The Federal Trademark Dilution Act poses a serious threat for filmmakers, much more so than found under the original Lanham Act. A filmmaker can be found guilt of dilution without a finding that consumers would likely be confused by the allegedly diluting use. The mere appearance of a mark in a film would not likely violate a trademark holders rights. According dilution's much less stringent standard, non-competing uses of a mark which would "blur" its strength would violate a holder's rights. Courts have used the FTDA in ways as broad as its language allows, and it poses a very serious …
Sexual Harassment In The Workplace: How Arbitrators Decide , Mollie H. Bowers, E. Patrick Mcdermott
Sexual Harassment In The Workplace: How Arbitrators Decide , Mollie H. Bowers, E. Patrick Mcdermott
Cleveland State Law Review
For thirty years courts and labor arbitrators have grappled with what constitutes sexual harassment and how to remedy such behavior. The Federal judiciary has developed case law on sexual harassment under Title VII of the Civil Rights Act of 1964. However, arbitrators addressing this issue under collective bargaining agreements have often treated similar fact patterns differently than jurists. In contrast, labor arbitrators decide culpability first, and then consider the appropriate remedy. In reconciling these separate paths for establishing standards of workplace conduct, the authors will provide a model that explains how arbitrators decide sexual harassment cases and how this model …
Learning From Japan: The Case For Increased Use Of Apology In Mediation , Max Bolstad
Learning From Japan: The Case For Increased Use Of Apology In Mediation , Max Bolstad
Cleveland State Law Review
This article proposes that there is room for increased use of apology in the United States and in mediation in particular. Mediation offers the ideal setting for the offering of an apology because of its position outside the traditional strictures of the adversarial system and because of its oft-stated goal of reconciling parties and preserving relationships. Similarly, an increased awareness of apology among mediators is likely to provide another innovative method for helping parties reach a mutually satisfying and beneficial settlement. Part II of this Article examines the nature of apology and its transformative power. Part II discusses the use …
Kass V. Kass, Blazing Legal Trails In The Field Of Human Reproductive Technology, Kelly Summers
Kass V. Kass, Blazing Legal Trails In The Field Of Human Reproductive Technology, Kelly Summers
Cleveland State Law Review
The decision in Kass illustrates a situation where well-founded common law contract principles were applied to a novel reproductive issue in order to respond to rapidly evolving technological progress. However, this legal dilemma presents a variable that warrants special attention. The parties involved in the case at hand struggled for control of a possible human life; Mrs. Kass hoped to preserve the pre-zygotes for future implantation attempts, and Mr. Kass sought to avoid the tribulations associated with compulsory parenthood. This Comment will evaluate the decisions rendered by both the Supreme Court of New York and the New York Court of …
The Unconstitutionality Of Eliminating Estate And Gift Taxes , James G. Wilson
The Unconstitutionality Of Eliminating Estate And Gift Taxes , James G. Wilson
Cleveland State Law Review
This article discusses why the recent proposal to eliminate estate and gift taxes is not only immoral and a poor allocation of resources, but also is unconstitutional. The author argues that the only way to sustain any allegation of unconstitutionality against these tax policy changes is to extend meanings of "constitutionality" beyond the legalistic paradigm of constitutional adjudication. Explaining that to extend notions of constitutionality this additional distance, we would need to resurrect earlier constitutional conceptions from such influential political thinkers as Aristotle, David Hume, James Madison, and Thomas Jefferson. While pointing out that the United States Constitution embodies a …
Is Hiv Disability Under The Americans With Disabilities Act: Unanswered Questions After Bragdon V. Abbott, Connie Mayer
Is Hiv Disability Under The Americans With Disabilities Act: Unanswered Questions After Bragdon V. Abbott, Connie Mayer
Journal of Law and Health
Prior to the passage of the ADA in 1990, the term "individual with a handicap" had been clearly established under federal disability laws to include all people with HIV. Every reported decision under the Rehabilitation Act and the Fair Housing Amendment Act had determined that asymptomatic HIV was protected as a per se disability. Prior to 1997, only a few Courts had faced the issue of whether a plaintiff with asymptomatic HIV was disabled under the ADA. In 1997, the Fourth and First Circuit Courts of Appeal decided cases in direct conflict with one another, opening the door for the …
Exclusive Or Concurrent Competence To Make Medical Decisions For Adolescents In The United States And United Kingdom , Robert L. Stenger
Exclusive Or Concurrent Competence To Make Medical Decisions For Adolescents In The United States And United Kingdom , Robert L. Stenger
Journal of Law and Health
Medical decision-making is one area where drawing and applying a single defining line between childhood and adulthood has proven difficult. Each society determines how it will allocate decision-making authority with respect to children. This article will address how such allocations have been developed in the United States and the United Kingdom. An analysis of the capacity of an adolescent to make decisions remains incomplete without some consideration of the role of parent(s) and of the government. It is precisely here that recent developments in the United Kingdom may provide helpful guidance in the United States.
Consent To Sperm Retrieval And Insemination After Death Or Persistent Vegatative State, Carson Strong
Consent To Sperm Retrieval And Insemination After Death Or Persistent Vegatative State, Carson Strong
Journal of Law and Health
Although a number of additional legal questions can be raised, including issues of paternity and inheritance, this paper focuses on the legal issues pertaining to consent, as well as the ethical questions raised above, which need to be discussed in order to address adequately the legal consent issues. The paper is organized as follows: first, the current law of consent to sperm retrieval and insemination after death or PVS is discussed in order to identify gaps in the law - areas that the law does not address or concerning which it is unclear; second, ethical issues are discussed that are …
The Tobacco Industry And The First Amendment - An Analysis Of The 1998 Master Settlement Agreement, Lori Ann Luka
The Tobacco Industry And The First Amendment - An Analysis Of The 1998 Master Settlement Agreement, Lori Ann Luka
Journal of Law and Health
This Note discusses and assesses the Government's likelihood of passing constitutional scrutiny with the Master Settlement Agreement's restrictions in light of the First Amendment case law. A majority of the restrictions will likely pass constitutional scrutiny because they meet the demanding requirements of Central Hudson and its progeny. The author believes that a few of the restrictions need to be more narrowly tailored in order to pass constitutional scrutiny. Suggestions on how to narrowly tailor the restrictions to comport with Central Hudson are proffered by the author. Section II provides an overview of the history of First Amendment commercial speech …
Calling Dr. Love: The Physician-Patient Sexual Relationship As Grounds For Medical Malpractice - Society Pays While The Doctor And Patient Play, Scott M. Puglise
Calling Dr. Love: The Physician-Patient Sexual Relationship As Grounds For Medical Malpractice - Society Pays While The Doctor And Patient Play, Scott M. Puglise
Journal of Law and Health
This note examines "consensual" sexual relationships between non-mental health physicians and patients. More specifically, it examines whether such relationships ever amount to medical malpractice. Generally, a non-mental health physician would be liable under the rubric of medical malpractice only if the sexual relationship was commenced under the guise of "medical treatment." Recent cases, however, have expanded liability in certain circumstances when the physician-patient relationship has involved "counseling matters." "Counseling matters" describes talking to patients about their feelings, or discussing personal problems not necessarily related to their proposed treatment. Medical treatment supplemented by "counseling" purportedly requires greater scrutiny due to the …
More Hippocrates, Less Hypocrisy: Early Offers As A Means Of Implementing The Institute Of Medicine's Recommendations On Malpractice Law, Jeffrey O'Connell, Patrick B. Bryan
More Hippocrates, Less Hypocrisy: Early Offers As A Means Of Implementing The Institute Of Medicine's Recommendations On Malpractice Law, Jeffrey O'Connell, Patrick B. Bryan
Journal of Law and Health
To remove the fear of personal liability from individual health care workers and eliminate the incentive to hide errors rather than report them, the IOM acknowledges that tort reform of some sort is also needed. Since the IOM calls for shifting attention away from the faults of individual care providers to the defects of the system itself, the current tort system's "blame culture" is itself blamed by the IOM for providing an impediment to improving the safety of patients by deterring physicians from reporting their own errors in the first place. However, the IOM's To Err is Human does not …
Punishment Of Health Care Fraud , Yvette M. Mastin
Punishment Of Health Care Fraud , Yvette M. Mastin
Journal of Law and Health
Although the definition of "health care fraud" is only one of the numerous issues of concern to health law practitioners and health care providers, the language that defines the conduct in question is the foundation of all other concerns related to "health care fraud." This Article will demonstrate the need for a narrowly construed definition of "health care fraud." The Article begins by providing a scenario to explain how a situation involving potential "health care fraud" can arise in the delivery of health care services. The Article then addresses how "health care fraud" is defined through a discussion of the …
Wrongful Birth And Wrongful Conception: A Parent's Need For A Cause Of Action, Mary B. Sullivan
Wrongful Birth And Wrongful Conception: A Parent's Need For A Cause Of Action, Mary B. Sullivan
Journal of Law and Health
The purpose of this note is to demonstrate the need for wrongful birth and wrongful conception claims. Arguments have been made that these claims should be combined into one cause of action. The rationale for this argument is that by combining the two claims, chaos in the courts will be reduced. This note will show the need to maintain these claims as separate from one another. This note also demonstrates the proper stance of the courts in rejecting the wrongful life cause of action. Part II of this note gives an overview of medical malpractice and the claims of wrongful …
Contract Sports, Martha M. Ertman
Contract Sports, Martha M. Ertman
Cleveland State Law Review
I explore ways that the private law of commerce can be imported to the private law of domestic relations to remedy family law's inadequacy and inequality. Existing domestic relations law posits heterosexual marriage as naturally superior to other forms of intimate affiliation, rendering the others (such as cohabitation, same-sex sexuality, and polyamory) unnatural and inferior. As such, it fails to recognize many intimate affiliations. Two examples of bridging the divide between private business law and private family law that I discuss in this essay are cohabitation contracts and Premarital Security Agreements. Importing private business models to domestic relations law has …
Computer Searches And Seizure, Donald Resseguie
Computer Searches And Seizure, Donald Resseguie
Cleveland State Law Review
This note will discuss legal issues related to search and seizure of computers and define the trend that the law is taking in the emerging area of inquiry. Personal privacy protection will be adequate regarding computer searches and seizures only if the courts properly balance the government's interests in bringing criminals to justice against citizens' interests against overly broad inquiries into the personal affairs. Section II provides a limited general discussion of constitutional limitations on search and seizure. Section III will discuss search and seizure of computers in the context of the "plain view" doctrine as an exception to the …
Alden V. Maine And State Sovereign Immunity Original Intent Or An Intent Congenial To The Court's Desires, Jeffrey H. Canja
Alden V. Maine And State Sovereign Immunity Original Intent Or An Intent Congenial To The Court's Desires, Jeffrey H. Canja
Cleveland State Law Review
In Alden v. Maine the Supreme Court considered whether Congress, pursuant to its Article I powers, can subject a nonconsenting state to a private suit for damages in the state's own courts. Alternatively viewed, the question was whether a state has sovereign immunity which precludes such suits. The Supreme Court affirmed, holding that Article I of the Constitution does not grant Congress the power to subject a nonconsenting state to a private suit for damages in the state's own courts. The decision represents a direct extension of the federalism developed by the Court in Seminole Tribe of Florida v. Florida, …