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Articles 1 - 30 of 38
Full-Text Articles in Law
Assessing Legal Responses To Prenatal Drug Use: Can Therapeutic Responses Produce More Positive Outcomes Than Punitive Responses, Elizabeth E. Coleman, Monica K. Miller
Assessing Legal Responses To Prenatal Drug Use: Can Therapeutic Responses Produce More Positive Outcomes Than Punitive Responses, Elizabeth E. Coleman, Monica K. Miller
Journal of Law and Health
Expressing a growing concern for fetal well being, the 2006 Idaho Senate passed legislation that permits criminal charges to be brought against women who abuse illegal drugs while pregnant. This bill allows for the potential incarceration of violators for up to five years, as well as a possible $50,000 fine. In some locations, women have the option of choosing to go to drug court instead of serving time in jail or prison. These drug courts provide drug treatment, case management, drug testing, and supervision, while requiring women who abuse illegal drugs to regularly report to scheduled status hearings before a …
How We Die: A New Prescription, Martin Bienstock
How We Die: A New Prescription, Martin Bienstock
Journal of Law and Health
The dawn of the twenty-first century brought with it a profound change in the way we experience death. Until the last decades of the twentieth century, our bodies died all at once: when the heart kidneys, lungs, or brain failed, the body's other organs failed with them. Modern medicine now allows us to die in pieces, with failing organs supported or supplanted by technology. Modern death is different not only biologically, but also sociologically. Until the twentieth century, death was a private event that took place in the home with the family. It offered one final opportunity for family members …
Theobald V. University Of Cincinnati - Reforming Medical Malpractice In Ohio: A Survey Of State Laws And Policy Impacts , Brian Dunne
Theobald V. University Of Cincinnati - Reforming Medical Malpractice In Ohio: A Survey Of State Laws And Policy Impacts , Brian Dunne
Journal of Law and Health
In its recent decision of Theobald v. University of Cincinnati, Ohio's Tenth District Court of Appeals declared that medical practitioners shall have state employee immunity, based on section 9.86 of the Ohio Revised Code, anytime they treat a patient as long as they act in a dual role to "teach" an "involved" student or resident. This immunity takes away the patient's right to sue the practitioner personally for his medical malpractice. As required by this holding, the doctor must have an employment relationship with state medical college. However, the employment relationship could encompass anything from a faculty position to something …
Moral Justification, Administrative Power And Emergencies, Re'em Segev
Moral Justification, Administrative Power And Emergencies, Re'em Segev
Cleveland State Law Review
Although harming people is generally wrong, it is exceptionally justified as the lesser evil when it is done to prevent sufficiently more serious harm. The two aspects of this moral truth should be reflected in the law. This is not always an easy task and is especially difficult with respect to the powers of the executive branch of government concerning emergencies. In such situations, there may be strong reasons to confer wide powers to the executive branch to perform harmful actions as the lesser evil. However, strong reasons exist to curb and check such powers. However, this problem is especially …
Reconsidering The Scope And Consequences Of Appellate Review In The Certification Decision Of Dukes V. Wal-Mart Stores, Inc. , Nicole Hitch
Reconsidering The Scope And Consequences Of Appellate Review In The Certification Decision Of Dukes V. Wal-Mart Stores, Inc. , Nicole Hitch
Cleveland State Law Review
This article will explore the Federal Rules of Civil Procedure and their application in the granting or denial of certification in an employment discrimination class action. In doing so, this article will examine how the district court applied these rules in the Wal-Mart action, which resulted in the certification of the largest private class action suit in American history. Additionally, this article will consider the consequences of the Ninth Circuit's utilization of permissive and liberal standards and, alternatively, the consequences of incorporation of stricter standards from various other circuit courts and the possible result of denial of certification.
A Comment On Information Propertization And Its Legal Milieu, Margaret Jane Radin
A Comment On Information Propertization And Its Legal Milieu, Margaret Jane Radin
Cleveland State Law Review
My main purpose in this essay is to urge that policy arguments about property in the digital environment take explicit cognizance of other policy considerations that tend to bound propertization: contractual ordering, competition, and freedom of expression. These policy considerations form the legal milieu in which propertization is situated.
Rankings, Reductionism, And Responsibility , Frank Pasquale
Rankings, Reductionism, And Responsibility , Frank Pasquale
Cleveland State Law Review
After discussing how search engines operate in Part I below, and setting forth a normative basis for regulation of their results in Part II, this piece proposes (in Part III) some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted high-ranking results relating to them, or exclusion from a page they claim it is their “due” to appear on. In the first case (deemed “inclusion harm”), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, …
Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison
Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison
Cleveland State Law Review
As its two main Parts will evidence, this Comment remains the product of two distinct if overlapping voices. Part II returns to the conceptual origins of Radin's theory in her general critique of objectification and commodification. It asks whether a more positive concept of objectification can be recovered that is distinguishable from reification, the latter seeming to be the more appropriate locus of Radin's criticism. Part III's response to Radin is similar, but it tries to exemplify both our appreciation of and our differences from her work through more detailed analysis of intellectual property law and theory.
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 Ohio Bureau Of Workers' Compensation: An Analysis Of The Status Quo And A Proposal For Improvement (A Medical Perspective), William H. Seitz Jr.
The Ohio Bureau Of Workers' Compensation: An Analysis Of The Status Quo And A Proposal For Improvement (A Medical Perspective), William H. Seitz Jr.
Journal of Law and Health
A worker's compensation claim is frequently a nightmare for the patient (injured worker), the employer (insurance payor), and the physician (health care provider). Because of the wastefulness inherent in the system, the overall cost of providing workers' compensation care in the State of Ohio has increased dramatically and as a result has seen significant reductions in hospital reimbursement levels and patient benefits, such as prescription drug availability. This article provides two clinical examples to highlight the problems with the worker's compensation system in Ohio. The first case example demonstrates what happens when the patient's initial diagnosis upon entering the system …
Book Review: Neither Kin Nor Kind: The Peculiar Ties That Bond Organ Donors, Their Families And Transplant Recipients, Bradley T. Miller
Book Review: Neither Kin Nor Kind: The Peculiar Ties That Bond Organ Donors, Their Families And Transplant Recipients, Bradley T. Miller
Journal of Law and Health
Reviewing Strange Harvest: Organ Transplants, Denatured Bodies, and the Transformed Self by Leslie A. Sharp, Berkeley, Cal., University of California Press, 2006.
God V. The Mitigation Of Damages Doctrine: Why Religion Should Be Considered A Pre-Existing Condition, Jennifer Parobek
God V. The Mitigation Of Damages Doctrine: Why Religion Should Be Considered A Pre-Existing Condition, Jennifer Parobek
Journal of Law and Health
According to the 2004-2005 United States Census Bureau Statistical Abstract of the United States, Americans identify with at least thirty-five different self-described Christian religious groups. Of those Christian groups, there are at least four that have special tenets regarding medical treatment that are central to their religious beliefs. Together, members of the Jehovah's Witnesses, Church of God, Pentecostal Free Will Baptist Church, and Christian Science Church constitute slightly more than four-and-a-half percent of the United State's total population. . . Unfortunately, even though the First Amendment of the United States Constitution was designed on our founders' beliefs that religious freedom …
The Individuals With Disabilities Education Improvement Act: Changing What Constitutes An Appropriate Education, Andrea Valentino
The Individuals With Disabilities Education Improvement Act: Changing What Constitutes An Appropriate Education, Andrea Valentino
Journal of Law and Health
Christopher, diagnosed at six years old with Asperger's Syndrome, is a child with a disability. Upon his diagnosis, Christopher's public school developed his Individualized Education Program (IEP) to serve Christopher's educational needs; however, his needs went unmet. Throughout Christopher's four years at his public school, his parents repeatedly met with school officials about the appropriateness of services being offered to Christopher as his IEP did not account for the individualized class support Christopher required. Despite consistent and dedicated efforts by his parents, school officials continually informed them there was nothing more the school or teachers could do. Unwilling to risk …
Taking A Bite Out Of The Harmful Effects Of Mercury In Dental Fillings: Advocating For National Legislation For Mercury Amalgams, Kimberly M. Baga
Taking A Bite Out Of The Harmful Effects Of Mercury In Dental Fillings: Advocating For National Legislation For Mercury Amalgams, Kimberly M. Baga
Journal of Law and Health
Mary Stephenson, a fifty-nine-year-old grandmother, visited dozens of counselors and experienced with an array of antidepressants but nothing worked to curb her suicidal feelings. Janie McDowell, a fifty-six-year-old housewife, suffered from hand tremors, leg-muscle spasms, recurring nausea, chronic bladder and kidney infections, severe depression, short-term memory loss, and slurred speech. Freya Koss, a former event planner, experienced dizziness and double vision. Physicians misdiagnosed Koss with lupus, multiple sclerosis, and, finally myasthenia gravis. The common theme among these medical tragedies is that the above victims all returned to being healthy, active adults after the removal of their mercury amalgam dental fillings. …
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 …
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 …
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 …
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 …