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Articles 31 - 60 of 68
Full-Text Articles in Law
Capturing Ideas: Copyright And The Law Of First Possession, Abraham Drassinower
Capturing Ideas: Copyright And The Law Of First Possession, Abraham Drassinower
Cleveland State Law Review
Part II of this paper, entitled “Wish and Deed,” sets forth an account of the law of first possession through an analysis of the classic case of Pierson v. Post. Part III, entitled “Idea and Expression,” briefly sets forth an account of the idea/expression dichotomy in copyright law through discussion of the classic case of Nichols v. Universal Pictures Corporation. On that basis, Part III unfolds a correspondence between animus and factum in property law and idea and expression in copyright law. Part IV, entitled “Things and Speech,” suggests through discussion of the classic case of Feist that central doctrines …
Inconsistent Methods For The Adjudication Of Alleged Mentally Retarded Individuals: A Comparison Of Ohio's And Georgia's Post-Atkins Frameworks For Determining Mental Retardation, Scott R. Poe
Cleveland State Law Review
This Note compares Ohio's and Georgia's post-Atkins frameworks for determining mental retardation. Ohio's framework offers a fairer application of Atkins and should serve as a guide for a national legal standard for use by state trial courts to determine mental retardation. Specifically, Ohio's use of preponderance of the evidence is a more appropriate standard of proof for determining mental retardation because it better reaches the overall goal in Atkins. Allowing the judge to make the mental retardation determination protects the alleged mentally retarded defendant from potential jury bias. Because Ohio's and Georgia's definitions of mental retardation are substantially similar and …
The Constitutional Significance Of Forgotten Presidents , Michael J. Gerhardt
The Constitutional Significance Of Forgotten Presidents , Michael J. Gerhardt
Cleveland State Law Review
My hope is to clarify the forgotten constitutional legacies of a number of American Presidents. This is only a small sliver of constitutional law, but not an insignificant one at that. My aim is to examine how the Presidents we commonly dismiss as constitutionally insignificant actually helped to shape the future of constitutional law. How these Presidents (and their administrations) exercised power, even for as short a time as William Henry Harrison, changed the constitutional landscape. I do not intend to make the case for rating these Presidents higher than historians or others usually do or for overstating what they …
Military Justice In The South, 1865-1868: South Carolina As A Test Case , Thomas D. Morris
Military Justice In The South, 1865-1868: South Carolina As A Test Case , Thomas D. Morris
Cleveland State Law Review
The end of Reconstruction involved an intricate interplay of legal rights and remedies with a bloody mix of racial violence. That is another story. What I have endeavored to address here is the role of the military in the first few years following the military defeat and surrender of the Confederacy.
Testimonial Statements, Excited Utterances And The Confrontation Clause: Formulating A Precise Rule After Crawford And Davis, Gary M. Bishop
Testimonial Statements, Excited Utterances And The Confrontation Clause: Formulating A Precise Rule After Crawford And Davis, Gary M. Bishop
Cleveland State Law Review
This Article will analyze whether the post-Crawford decisions have been consistent in their treatment of statements that qualify as excited utterances in light of the Confrontation Clause principles and various definitions of testimonial in Crawford. Part II of this Article will provide a discussion of the Crawford decision itself and an analysis of Crawford's treatment of earlier cases in this area. Part III of this Article will provide a discussion and analysis of court decisions that have applied Crawford in the context of excited utterances. It will do this by examining the factors that these courts have considered and emphasized …
Prayer Or Prison: The Unconstitutionality Of Mandatory Faith-Based Substance Abuse Treatment, Christopher M. Meissner
Prayer Or Prison: The Unconstitutionality Of Mandatory Faith-Based Substance Abuse Treatment, Christopher M. Meissner
Cleveland State Law Review
Whether faith-based substance abuse treatments are effective is certainly a valid question in its rightful place, but it is not the inquiry pursued here. Rather, this Note argues that a drug court's act of assigning unwilling offenders to twelve-step or otherwise religiously-based residential treatment centers violates the Establishment Clause guarantee. Specifically, such centers regulate the offenders' beliefs and compel them to affirm whatever tenets are professed at the individual treatment center. Moreover, a court's subsequent act of threatening or actually imposing criminal sanctions upon offenders for refusing to complete such treatment programs constitutes punishment for refusing to be religiously indoctrinated …
The Taxation Of Income Available For Discretionary Use, Deborah A. Geier
The Taxation Of Income Available For Discretionary Use, Deborah A. Geier
Law Faculty Articles and Essays
The signature tax policy tension of the last two decades (at least) has been whether the federal tax base ought to reach income or only consumption. At the individual level, the current Internal Revenue Code (payroll taxes aside) incorporates an income tax base with numerous consumption tax components - provisions that allow either immediate deduction of a non-consumption capital expenditure (as under a cash-flow consumption tax), such as qualified pension plan and IRA savings, or exclusion of the returns to capital (as under a wage tax), such as the exclusion for home sale gain and Section 103 interest. (A more …
The Cape Town Approach: A New Method Of Making International Law, Mark J. Sundahl
The Cape Town Approach: A New Method Of Making International Law, Mark J. Sundahl
Law Faculty Articles and Essays
The use of multilateral treaties in the field of international commercial law has been in a state of steady decline. Traditional treaty law has been gradually replaced in recent years by softer methods of making international law, such as the use of restatements and model laws. Some scholars even claim that treaty law is dead or dying. This Article explains how the Cape Town Convention on International Interests in Mobile Equipment (which entered into force on March 1, 2006) provides an innovative approach to the creation of treaties that promises to revive the status of treaties in international law. The …
Rethinking Amnesty, Milena Sterio
Rethinking Amnesty, Milena Sterio
Law Faculty Articles and Essays
This Article will focus on the issue of accountability under the existing international law and will address the following question: Is there a duty to prosecute perpetrators of human rights abuses? Furthermore, if there is such a duty, what are its precise contours, its reach and its limits? Can amnesty laws and truth commissions ever be legal despite the evolving body of human rights law that seems to dictate the absolute assurance of those rights? Part I of this Article will examine the existing accountability mechanisms, while evaluating their respective strengths and weaknesses. Part II will focus on the existing …
Moral Ambition: The Sermons Of Harry A. Blackmun, Dena S. Davis
Moral Ambition: The Sermons Of Harry A. Blackmun, Dena S. Davis
Law Faculty Articles and Essays
Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. The public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this "Service of Death and Resurrection" was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on "The Churchmanship of Harry Blackmun." Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice's many contributions, Holmes noted a sermon that Blackmun had once preached on …
Seeking The Best Forum To Prosecute International War Crimes: Proposed Paradigms And Solutions, Milena Sterio
Seeking The Best Forum To Prosecute International War Crimes: Proposed Paradigms And Solutions, Milena Sterio
Law Faculty Articles and Essays
This Article will focus on some of the practical considerations underlying the decision to resort to a particular type of prosecution: international, hybrid, or national. Part II of this Article will describe the ICTY's referral of the Ademi/Norac case to Croatian national courts, focusing on the reasons underlying the referral, as well as on the appropriateness of the referral in light of international criminal law. Part III will then focus on the Special Court, in an effort to assess whether such a hybrid tribunal is a better form of international justice. Finally, Part IV will outline certain paradigms in an …
Exporting Dmca Lockouts, Anupam Chander
Exporting Dmca Lockouts, Anupam Chander
Cleveland State Law Review
My goal here is limited. I do not attack the anti-circumvention provisions of the DMCA as wholly misguided; the desire to prevent widespread piracy of copyrighted works is understandable. At the same time, I do not mean to suggest that the critique I offer here is the sum of the adverse consequences of that statute, including for speech and education. My argument is limited to the threat posed by the export of the DMCA anti-circumvention rules, which do not explicitly guard against the anti-competitive use of those rules.Part I briefly sketches the difficulties created domestically by a DMCA inattentive to …
Gps Monitoring: A Viable Alternative To The Incarceration Of Nonviolent Criminals In The State Of Ohio, Matthew K. Kucharson
Gps Monitoring: A Viable Alternative To The Incarceration Of Nonviolent Criminals In The State Of Ohio, Matthew K. Kucharson
Cleveland State Law Review
This article will discuss the emergence of GPS technology in the field of criminal law and propose that Ohio embrace GPS monitoring as an alternative to the incarceration of nonviolent offenders. Part II will begin by briefly outlining the history of GPS technology. Part II will then discuss the use of GPS monitoring in the field of law enforcement. Specifically, this Part will illustrate the different components necessary for the implementation of an effective GPS monitoring program and explain the use of inclusion and exclusion zones. Part III will examine the status of Ohio's state prison system and will focus …
Aedpa Statute Of Limitations: Is It Tolled When The United States Supreme Court Is Asked To Review A Judgment From A State Post-Conviction Proceeding, Diane E. Courselle
Aedpa Statute Of Limitations: Is It Tolled When The United States Supreme Court Is Asked To Review A Judgment From A State Post-Conviction Proceeding, Diane E. Courselle
Cleveland State Law Review
This thirty-seven word provision [the tolling provision in the Antiterrorism and Effective Death Penalty Act] has been construed by the United States Supreme Court three times since 1996, and yet several questions remain unanswered. One such unanswered question is whether tolling occurs when a petitioner files a petition for writ of certiorari to the United State Supreme Court from the state court postconviction decision. In other words, does seeking the United States Supreme Court's review from a state court's final decision on an "application for State post-conviction or other collateral review" keep the state post-conviction application "pending?" That is the …
Disclosure Protection: Franchises And Food Court Leases, James R. Cataland
Disclosure Protection: Franchises And Food Court Leases, James R. Cataland
Cleveland State Law Review
The shopping center industry continues to enjoy relative freedom from governmental regulation and operates within the framework of a long term, well established body of favorable commercial landlord/tenant law. Conversely, certain "'unfair and deceptive practices" in the sale of franchises have led to comprehensive consumer protection legislation at both the state and federal level. In 1978, the Federal Trade Commission promulgated a series of uniform disclosure requirements that a franchise or business opportunity seller must make when soliciting a prospective buyer. Often, the prospective buyer of a fast food franchise is an unsophisticated husband and wife, owner/operator, commonly referred to …
Booker And Our Brave New World: The Tension Among The Federal Sentencing Guidelines, Judicial Discretion, And A Defendant's Constitutional Right To Trial By Jury, Kristina Walter
Cleveland State Law Review
This Note examines the inherent conflict among the Federal Sentencing Guidelines, judicial discretion, and a defendant's Sixth Amendment right to a trial by jury. Part two of this Note will provide a historical overview of the Guidelines. Part three will discuss the application of the Guidelines and the role of juries and judges at sentencing hearings. Part four will highlight criticisms relating to how the Guidelines often usurp power from juries and judges. Part five will examine the milestone cases of Blakely v. Washington, United States v. Booker, and United States v. Fanfan (hereinafter "Booker" refers to the combined cases …
Contractual Waivers Of A Right To Jury Trial - Another Opinion, Brian D. Weber
Contractual Waivers Of A Right To Jury Trial - Another Opinion, Brian D. Weber
Cleveland State Law Review
It is well-settled that arbitration in the employment context is favored by the courts, and that there is a federal policy favoring arbitration agreements, in general. However, jury waivers outside of arbitration in the employment context are still a relatively novel idea in some jurisdictions, despite the fact that an arbitration agreement itself inherently prevents the employee from having a jury trial. The Sixth Circuit Court of Appeals, as well as the Ohio Supreme Court, have yet to determine if jury waivers in employment contracts are binding. This paper will assess contractual jury trial waivers in the employment context as …
Cybertrespass And Trespass To Documents, Kevin Emerson Collins
Cybertrespass And Trespass To Documents, Kevin Emerson Collins
Cleveland State Law Review
In this essay, I offer only a small contribution to the ongoing cybertrespass debate that I believe allows the debate to be seen from a different perspective. In other words, I add a new story to the mix. I explore what I call trespass to documents. The cases applying trespass to documents are real-space, pre-Internet variants of a subset of the cybertrespass cases. They demonstrate that property rights in the tangible medium on which information is inscribed have not historically been broad enough to trump the complicated balancing of interests that characterizes information law when free-speech and competition-policy concerns are …
Goodbye To Affidavits - Improving The Federal Affidavit Substitute Statute, Ira Shiflett
Goodbye To Affidavits - Improving The Federal Affidavit Substitute Statute, Ira Shiflett
Cleveland State Law Review
Thirty years ago, Congress recognized that the costs of notarization generally outweighed the benefits. In 1976, Congress enacted 28 U.S.C. § 1746, intending to limit the circumstances in which a notary would be required. Section 1746 provides that whenever a document is required to be supported by a notarized statement other than a deposition, an oath of office, or an oath required to be taken before an official other than a notary, a declaration under penalty of perjury is a sufficient substitute. Congress recognized that it could be inconvenient to find a notary, especially on the weekends or for people …
Ariadne's Thread: Leading Students Into And Out Of The Labyrinth Of The Rule Against Perpetuities , Maureen E. Markey
Ariadne's Thread: Leading Students Into And Out Of The Labyrinth Of The Rule Against Perpetuities , Maureen E. Markey
Cleveland State Law Review
This Article focuses partly on my own approach to teaching the Rule Against Perpetuities, but it addresses the approaches of others based on the survey responses. Although I have developed a method that works fairly well for my classes, I am always open to suggestions from others for modifying and improving that approach. Of course, a single method, no matter how good it appears to be, will not work for everyone. Therefore, I have incorporated a number of approaches into this Article so that those wanting to develop or improve their teaching of the Rule can pick and choose among …
Table Of Contents - Issue 4, Cleveland State Law Review
Table Of Contents - Issue 4, Cleveland State Law Review
Cleveland State Law Review
No abstract provided.
Shame And The Meaning Of Punishment, Chad Flanders
Shame And The Meaning Of Punishment, Chad Flanders
Cleveland State Law Review
This Essay critiques the shaming punishments debate, not in the interest of defending one side or the other, but to make more explicit the paradox with which this Essay began. This Essay also advances the proposal that a consistent liberalism, one that demands that all citizens be respected equally, is incompatible with any punishment that requires the infliction of hard treatment (treatment which inflicts pain or suffering) or humiliation on the offender. It is important to bracket the practical consequences of this proposal. Perhaps it was proposals like this one that made Nietzsche worry about the progressive softening of societies …
Monism, Nominalism, And Public-Private In The Work Of Margaret Jane Radin, Christopher L. Sagers
Monism, Nominalism, And Public-Private In The Work Of Margaret Jane Radin, Christopher L. Sagers
Cleveland State Law Review
This essay begins by situating the distinction in history generally and in American legal thought. Its historical aspect seems important because it suggests that the distinction is not predetermined—it is historically and culturally contingent. That fact has been largely ignored in the American legal academy, and among most of the judiciary it is all but outright socialist treachery to suggest it.
The essay moves on to consider Radin's work itself. The prominence of the distinction is relatively obvious in some of her work on technological marketing and design issues, but I will suggest that in fact it runs quietly just …
Improvident Extension Of Credit As An Extension Of Unconscionability: Discover Bank V. Owens And A Debtor's Rights Against Credit Card Companies , Terri Rebecca Daniel
Improvident Extension Of Credit As An Extension Of Unconscionability: Discover Bank V. Owens And A Debtor's Rights Against Credit Card Companies , Terri Rebecca Daniel
Cleveland State Law Review
This Note will examine improvident extension of credit as an extension of unconscionability in consumer credit card lending. Part II of this Note will discuss the history and foundation of unconscionability. Part III will discuss the history and foundation of improvident extension of credit, as well as the many failed attempts to create a solution to the problem of improvident extension of credit in the United States. Part IV of this Note will analyze the current role of improvident lending in consumer credit and why no solution was reached in the 1970s. Part V will examine the increased need for …
Taxing Obesity - Or Perhaps The Opposite, Saul Levmore
Taxing Obesity - Or Perhaps The Opposite, Saul Levmore
Cleveland State Law Review
The true subject of this Lecture is the question of why we regulate some things and not others, and then how we might predict future regulation. Let me begin with my conclusion, to be developed at greater length in other work. Its academic novelty will be the notion that a fair amount of regulation is best understood as fostering self-control on behalf of the governed. I will suggest that we add this explanation, or category, of government intervention to the more familiar ones of public goods, coordination, interest group capture, and negative externalities where there are high transaction costs. Its …
Unreasonable Conditions Impeding Our Nation's Charities: An Unconstitutional Condition In The Combined Federal Campaign, Amy K. Ryder Wentz
Unreasonable Conditions Impeding Our Nation's Charities: An Unconstitutional Condition In The Combined Federal Campaign, Amy K. Ryder Wentz
Cleveland State Law Review
The Combined Federal Campaign (CFC) is an annual charity drive in which profit organizations that receive funds through the CFC to compare the names of their employees against the names on terrorist watch lists and then notify the federal government of any matches. If an organization refuses to abide by this mandate, it is prohibited from soliciting and receiving donations through the CFC. This new requirement presents a question of first impression for the courts When the issue makes its way into a courtroom, the courts may be tempted to follow the analysis of Cornelius v. NAACP Legal Defense and …
Propertization, Contract, Competition, And Communication: Law's Struggle To Adapt To The Transformative Powers Of The Internet, David Barnhizer
Propertization, Contract, Competition, And Communication: Law's Struggle To Adapt To The Transformative Powers Of The Internet, David Barnhizer
Cleveland State Law Review
This Symposium focuses in part on the ideas of Margaret Jane Radin as a point of departure for the various contributions. A key part of the analysis includes the process she calls propertization in the context of intellectual property rules and the Internet. The approach taken in this introductory essay is twofold. The first part presents some key points raised by the Symposium contributors. Of course, that overview is necessarily incomplete, because the contributions represent a rich group of analyses about vital concerns relating to how our legal system should respond to the challenge of the Internet and information systems …
Propertization Metaphors For Bargaining Power And Control Of The Self In The Information Age, Daniel D. Barnhizer
Propertization Metaphors For Bargaining Power And Control Of The Self In The Information Age, Daniel D. Barnhizer
Cleveland State Law Review
This Article argues that the threatening consequences of this commodification and propertization of consumers' electronic selves represent only part of the picture. Information era technological developments provide more tools than ever available before by which consumers can place boundaries around their right to consent and exclude others from that arena. Thus, Internet-based contracting allows consumers to access a broad range of bargaining power inputs to protect their power to withhold consent. Instead of an amorphous, indefinable quality of contracting parties, bargaining power may now be characterized as a series of discrete inputs that can be identified, evaluated, exchanged and owned. …
Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix
Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix
Cleveland State Law Review
Margaret Jane Radin's paper discusses the ways modern technologies have prompted new thinking within and about property, and the way the legal response has failed to take sufficiently into account the countervailing considerations that have shaped earlier Property Law developments. Some new technologies have also caused intellectual and practical struggles within Contract Law. This paper will consider some of the developments of Contract Law related to these changes, in particular the transactions relating to the sale, leasing or free use of computer software and the purchase of computers. Part I of this paper introduces the topic and offers an overview …
Changing The Bathwater And Keeping The Baby: Exploring New Ways Of Evaluating Intent In Environmental Discrimination Cases, Browne C. Lewis
Changing The Bathwater And Keeping The Baby: Exploring New Ways Of Evaluating Intent In Environmental Discrimination Cases, Browne C. Lewis
Law Faculty Articles and Essays
This paper is divided into four parts. Part one consists of a general overview of the problem of environmental discrimination. Part two gives a brief discussion of relevant Equal Protection jurisprudence. The section begins with a summary of general Equal Protection law. Then, the section analyzes the primary cases that established the foundation of modem-day Equal Protection doctrine. Part three examines the current application of the intent requirement in environmental discrimination cases. To that end, the section reviews the outcome of three of the early environmental discrimination cases, and speculates about the components that are necessary to prepare a successful …