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Articles 121 - 150 of 160
Full-Text Articles in Courts
Administrative Res Judicata In Ohio: A Suggestion For The Future, Randy J. Hart
Administrative Res Judicata In Ohio: A Suggestion For The Future, Randy J. Hart
Cleveland State Law Review
This note will focus on the law of res judicata as applied by the state courts of Ohio regarding decisions handed down by Ohio's administrative agencies. While there exists a body of law on the federal level pertaining to administrative res judicata, which appears to be well settled, the Ohio Supreme Court has not yet ruled on whether the decision of an administrative body will have res judicata effect in a subsequent action in an Ohio state court. This note will suggest that Ohio courts should reject administrative res judicata where its effect would be to bind the state courts …
State Of The Art Evidence Under Ohio Strict Products Liability Law, Chris L. Hurlbut
State Of The Art Evidence Under Ohio Strict Products Liability Law, Chris L. Hurlbut
Cleveland State Law Review
While the evolution of strict products liability has not generated as much jurisprudence in Ohio as it has in other states, the Ohio law that has evolved clearly reflects the national confusion. Frequently, the confusion both nationally and in Ohio results from the courts' failure to adequately separate the many issues that arise in a strict products liability action. The purpose of this Note is to focus on one narrow issue in Ohio strict products liability law-the admissibility of state of the art evidence. The Ohio Supreme Court has never addressed this question, and other jurisdictions are split on the …
A Government By Judges: An Historical Re-View, Michael Henry Davis
A Government By Judges: An Historical Re-View, Michael Henry Davis
Law Faculty Articles and Essays
In 1921, Edouard Lambert, a professor of law at Lyon specializing in comparative studies and founder of an Institute of Comparative Law there, published a book, Le Gouvernement des judges et la lutte contra la legislation sociale aux Etats-Unis, thus singlehandedly creating the phrase, a "government of judges", to denote a truly unconstrained system of judicial review which could not be limited even by constitutional amendment. The phrase quickly entered the parlance of French public law and even that of popular culture, deriving much of its force, no doubt, from the historical French aversion to a strong judiciary, eventually becoming …
Stepping On Board The Rule 11 Bandwagon, Roger M. Baron
Stepping On Board The Rule 11 Bandwagon, Roger M. Baron
Cleveland State Law Review
Prior to the 1983 amendments to Rule 11, there was some concern as to whether or not the Federal Rules had adequate provisions to insure the truthfulness of allegations in pleadings and motions. With the 1983 incorporation of an objective standard of reasonableness, subjective good faith was eliminated as a defense. Whether anticipated or not, the federal courts have now become flooded with litigation concerning the new Rule 11. Certain differences do exist among the circuits; however the differences are relatively minor, relating primarily to each circuit's description of the conduct which violates the relevant standards and to the standard …
The Law/Politics Distinction, The French Conseil Constitutionnel, And The U.S. Supreme Court, Michael H. Davis
The Law/Politics Distinction, The French Conseil Constitutionnel, And The U.S. Supreme Court, Michael H. Davis
Law Faculty Articles and Essays
A dispute burns across the landscape of French constitutional law regarding the juridical nature of the French constitutional "Supreme Court", the Conseil constitutionnel: is it a court? Both French and American scholars have claimed that, despite superficial similarities between the U.S. Supreme Court and the French Conseil constitutionnel, the American system of judicial review "can have no counterpart in the French system", that French legal and political theory is inconstistent with an effective supreme court, that there is "no possibility" that the French and American systems could surmount this "major difference", and that the Conseil is simply not a "true …
Reflections On The Adr Movement, Robben W. Fleming
Reflections On The Adr Movement, Robben W. Fleming
Cleveland State Law Review
ADR, the acronym that identifies the alternative dispute resolution movement, derives its current popularity from widespread dissatisfaction with the present system of justice. Thus, ADR both proposes and promotes "alternative" ways of dealing with disputes which would otherwise be the subject of litigation. In truth, there is nothing very new about the criticism directed at the legal profession, the courts, and the adjudicatory systems in general. The alternatives which have been suggested over the years are very similar. All of the alternatives lie along an axis which starts with efforts to bring about voluntary agreement by the parties and ends, …
The Changing Course: The Use Of Precedent In The District Of Columbia Circuit, Patricia M. Wald
The Changing Course: The Use Of Precedent In The District Of Columbia Circuit, Patricia M. Wald
Cleveland State Law Review
An article by my colleague Judge Edwards uses a series of computer runs from the court's 1983 term to make out a statistical case that our members mostly agree with each other and do not fall into predictable "conservative," “liberal," or even "moderate," voting blocs; labels that the press so dearly loves to pin on us. I agree that our votes in a large number of cases, particularly administrative law cases, do not so easily typecast us. I do, however, think that in the high visibility cases, involving controversial social or "moral" issues, our differences in judicial philosophy, on the …
Mini In Banc Proceedings: A Survey Of Circuit Practices, Steven Bennett, Christine Pembroke
Mini In Banc Proceedings: A Survey Of Circuit Practices, Steven Bennett, Christine Pembroke
Cleveland State Law Review
In banc review was originally intended to resolve conflicts in circuit precedent. Full-scale in banc proceedings, however, are cumbersome, costly and time-consuming. In determining whether to proceed with in banc review, courts appear to weigh the costs of in banc review against its potential benefits. Employing this calculus, courts often forgo in banc review in conflict cases that would otherwise receive such treatment. One solution to this problem is to reduce the cost and delay of in banc proceedings by streamlining the procedure. Recently, several federal circuit courts of appeals have adopted abbreviated forms of in banc review. The purpose …
Hypnotically Refreshed Testimony: Is It Legally Relevant To A Criminal Proceeding In Ohio, Thomas H. Allison
Hypnotically Refreshed Testimony: Is It Legally Relevant To A Criminal Proceeding In Ohio, Thomas H. Allison
Cleveland State Law Review
In the past twenty years a growing number of courts, both state and federal, have addressed the problem of the admissibility in a criminal trial of testimony by a witness whose memory has been "refreshed" by the use of pre-trial hypnosis. Some courts are of the opinion that hypnosis is nothing more than a memory aid, to be treated like any other device to refresh recollection. Other courts believe hypnosis is more of a "science," and as such should be treated consistently with the rules for the admission of other scientific evidence. While the reliability of using hypnosis to refresh …
The Definition Of A Security Under The Federal Securities Law Revisited, M. Thomas Arnold
The Definition Of A Security Under The Federal Securities Law Revisited, M. Thomas Arnold
Cleveland State Law Review
The United States Supreme Court recently decided two cases involving the definition of "security" as used in the federal securities acts. In this brief case comment I will summarize the majority and dissenting opinions in Landreth Timber Co. v. Landreth, and Gould v. Ruefenacht . I will then comment on some of the policy questions raised by the cases, and conclude by evaluating how much guidance the two cases provide on the proper definition of "security".
Cancer And Toxic Substances: The Problem Of Causation And The Use Of Epidemiology, Junius C. Mcelveen Jr., Pamela S. Eddy
Cancer And Toxic Substances: The Problem Of Causation And The Use Of Epidemiology, Junius C. Mcelveen Jr., Pamela S. Eddy
Cleveland State Law Review
This article seeks to illuminate the difficulties in finding causation between cancer development and toxic substances. Section II gives a brief history of cancer in society as well as an introduction to the biological cancer mechanism, and highlights our general lack of knowledge about cancer. Section III takes a brief look at some occupations and environmental factors that have been suggested causes of cancer. Section IV discusses in depth the problems with establishing association between toxic substances and cancer, especially in establishing causal significance. Section V analyzes how the epidemiology of disease and toxic substances is treated by courts. Section …
The Role Of Oral Argument At The U.S. Supreme Court-- A View From The Podium, Arthur R. Landever
The Role Of Oral Argument At The U.S. Supreme Court-- A View From The Podium, Arthur R. Landever
Law Faculty Articles and Essays
This article has offered survey results of the attitudes of lawyers who have made oral arguments at the U.S. Supreme Court. Respondents generally approve of the current process, find the justices relatively well prepared, and the questions generally useful. At the same time, they express some uncertainty about whether the oral argument phase had any impact in their particular cases. By and large, they take as a given, the important function of oral argument as a supplement to the written brief.
Contract Formation Jurisdiction Of The United States Claims Court, Joel R. Feidelman, Josephine L. Ursini
Contract Formation Jurisdiction Of The United States Claims Court, Joel R. Feidelman, Josephine L. Ursini
Cleveland State Law Review
This new United States Court of Appeals for the Federal Circuit has jurisdiction over appeals in contract and patent infringement cases. The former Court of Claims' trial division has also been replaced with a new United States Claims Court. This court, inter alia, has been invested with the jurisdiction to conduct trials in contract and patent cases. Of particular interest to the government contracting community, is the provision of the Act regarding the contract formation or pre-award jurisdiction of the new Claims Court. The Claims Court has the potential to provide the most effective forum for the resolution of protests …
Is The United States Claims Court Constitutional?, Joan E. Baker
Is The United States Claims Court Constitutional?, Joan E. Baker
Cleveland State Law Review
This article will deal with two major constitutional problems that have resulted from the creation of the Claims Court. The first issue is the constitutionality of the appointment of existing Court of Claims Commissioners to be judges on the Claims Court during a four-year "transition" period. By legislatively designating the persons who are to serve as judges on the new court, Congress has usurped the presidential appointment power. The second issue relates to the constitutional status of the Claims Court. The Court of Claims which it replaces was created under article III of the Constitution, and the judges on it …
The Phoenix Court, Howard T. Markey
The Phoenix Court, Howard T. Markey
Cleveland State Law Review
Like the famed Phoenix, the United States Court of Appeals for the Federal Circuit rose on October 1, 1982, from the ashes of two former courts. On that day, the 127 year old United States Court of Claims and the 73 year old United States Court of Customs and Patent Appeals went out of existence, leaving a history of outstanding contributions to the administration of justice. Though every federal court serves the role on numerous occasions, the Court of Appeals for the Federal Circuit should in a special way earn the title of "The Conscience of the Government." This article …
The New United States Claims Court, Philip R. Miller
The New United States Claims Court, Philip R. Miller
Cleveland State Law Review
Effective October 1, 1982, after a life span of approximately 117 years, the existence of the United States Court of Claims was terminated by the Federal Courts Improvement Act of 1982. This article discusses the new Claims Court, starting with a discussion of its jurisdiction in Section II. Section III then elaborates on the procedure of the claims court, including: assignment of cases, place of trial, rules of evidence, pre-trial procedures, discovery, trial, oral argument, and post-trial procedure. Then Section IV explains the appeals process for cases decided in the Claims Court, and Section V finishes with a discussion of …
Local Rules And Procedures Of The United States Court Of Appeals For The Federal Circuit, George E. Hutchinson, Ernest C. Baynard Iii
Local Rules And Procedures Of The United States Court Of Appeals For The Federal Circuit, George E. Hutchinson, Ernest C. Baynard Iii
Cleveland State Law Review
The Federal Courts Improvement Act of 1982 abolished the United States Court of Claims and the United States Court of Customs and Patent Appeals and created the United States Court of Appeals for the Federal Circuit (CAFC) and the United States Claims Court. The Act provided for an advisory committee to be appointed by the CAFC in order to study the proposed rules of practice and internal operating procedures of the court. The recommendations of the advisory committee were given considerable weight when the court promulgated the Rules of the United States Court of Appeals for the Federal Circuit (CAFC …
The Cleveland Housing Court Act: New Answer To An Old Problem, Frederic P. White
The Cleveland Housing Court Act: New Answer To An Old Problem, Frederic P. White
Cleveland State Law Review
This Article will critically examine the Housing Court's historical setting, constitutional foundation and jurisdictional powers. In addition, comparison with systems established in other states provides possible alternative suggestions for successful operation. Finally, an in-depth analysis of current problems, including inadequate funds and staff, political manipulation and protracted procedural delays, seeks to answer the question of whether the Housing Court will become a meaningful and positive force for change, or simply an "indecisive, inefficient and interminable" bureaucratic nightmare.
The Summary Jury Trial, Thomas D. Lambros, Thomas H. Shunk
The Summary Jury Trial, Thomas D. Lambros, Thomas H. Shunk
Cleveland State Law Review
The American judicial system must necessarily rely on a steady flow of dispositions of cases by settlement lest it collapse because of a demand for trials beyond the ability of the courts to try cases. Settlements are achieved through a variety of procedures and techniques, yet many cases result in trials because of the uncertainty about prospective juror perceptions that pervades settlement discussions. Summary trial helps to eliminate this element of uncertainty and, at the same time, provides an additional basis for settlement of cases otherwise committed to trial. This is not to suggest that trial is to be avoided …
The Developing Role Of The Magistrate In The Federal Courts, Jack B. Streepy
The Developing Role Of The Magistrate In The Federal Courts, Jack B. Streepy
Cleveland State Law Review
Many practicing attorneys are unfamiliar with the role of the United States Magistrate in the federal judicial system. This article is intended to offer some insight into that role, both nationally and in the United States District Court for the Northern District of Ohio.
The Summary Jury Trial, Thomas D. Lambros, Thomas H. Shunk
The Summary Jury Trial, Thomas D. Lambros, Thomas H. Shunk
Cleveland State Law Review
The American judicial system must necessarily rely on a steady flow of dispositions of cases by settlement lest it collapse because of a demand for trials beyond the ability of the courts to try cases. Settlements are achieved through a variety of procedures and techniques, yet many cases result in trials because of the uncertainty about prospective juror perceptions that pervades settlement discussions. Summary trial helps to eliminate this element of uncertainty and, at the same time, provides an additional basis for settlement of cases otherwise committed to trial. This is not to suggest that trial is to be avoided …
The Developing Role Of The Magistrate In The Federal Courts, Jack B. Streepy
The Developing Role Of The Magistrate In The Federal Courts, Jack B. Streepy
Cleveland State Law Review
Many practicing attorneys are unfamiliar with the role of the United States Magistrate in the federal judicial system. This article is intended to offer some insight into that role, both nationally and in the United States District Court for the Northern District of Ohio.
Public Process And Ohio Supreme Court Rulemaking, Jeffrey A. Parness, Christopher C. Manthey
Public Process And Ohio Supreme Court Rulemaking, Jeffrey A. Parness, Christopher C. Manthey
Cleveland State Law Review
While court created rules, in terms of their impact on society, are often as important as judicial decisions or legislative acts, they are relatively unknown to the general public. Further, there is often no public input prior to their adoption. Rather, court rules are often promulgated with no opportunity for general public discussion. Judge Jack B. Weinstein recently called attention to such a lack of "public process" in federal court rulemaking and expressed the hope that others will "speak out so that the matter can be thoroughly debated." On the state level this factor is absent from most rulemaking promulgated …
Some Thoughts On Judicial Authority To Repair Unconstitutional Legislation, Ruth Bader Ginsburg
Some Thoughts On Judicial Authority To Repair Unconstitutional Legislation, Ruth Bader Ginsburg
Cleveland State Law Review
Among governing institutions, the judiciary has been described as "the least dangerous branch."' Courts in our system have the awesome power to declare laws unconstitutional, but judges command no troops, and are said to lack the power of the purse. My remarks address a facet of the purse power supposition: When a legislative product is constitutionally infirm because it is under inclusive, what remedies lie within the judicial province? Discussion will focus on the question whether a court may order inclusion of a category of persons left out by the legislature, a question particularly pointed when the court's inclusion order …
State Court Intervention In School Finance Reform, Annette B. Johnson
State Court Intervention In School Finance Reform, Annette B. Johnson
Cleveland State Law Review
This article will focus on the nature, appropriateness, and consequences of judicial activism and judicial restraint in the school financing area.
Federal Courts, Injunctions, Declaratory Judgments, And State Law: The Supreme Court Has Finally Fashioned A Workable Abstention Doctrine, Clair E. Dickinson
Federal Courts, Injunctions, Declaratory Judgments, And State Law: The Supreme Court Has Finally Fashioned A Workable Abstention Doctrine, Clair E. Dickinson
Cleveland State Law Review
The American judicial system is founded on several policies which act as guideposts for the courts. Among these is the policy that states should be as free from federal control as possible. At the opposite end of the spectrum is the view that federal courts have a duty to protect individuals from violations of their constitutional rights. These policies meet, and seemingly clash, when a plaintiff enters a federal court either to request a declaratory judgment that a state statute is unconstitutional or to seek an injunction against the enforcement of the statute. The balancing of these competing interests has …
Juvenile Delinquent And Unruly Proceedings In Ohio: Unconstitutional Adjudications, Patricia Simia Kleri
Juvenile Delinquent And Unruly Proceedings In Ohio: Unconstitutional Adjudications, Patricia Simia Kleri
Cleveland State Law Review
This article will focus on the constitutional defects of juvenile court adjudications under Ohio juvenile law. The arguments presented, however, are equally applicable in other jurisdictions since every state has some type of legislation granting juvenile court jurisdiction over both criminals and noncriminal misconduct of children.
Book Review, Samuel Sonenfield
Book Review, Samuel Sonenfield
Cleveland State Law Review
Review of The Jury- Tool of Kings, Palladium of Liberty, LLoyd E. Moore, New York, The H.W. Anderson Co., 1973.
Book Review, John Craig Comfort
Book Review, John Craig Comfort
Cleveland State Law Review
Review of the Applications of Operations Research to Court Delay, John H. Reed, New York, Washington, London, Praeger Publishers, Inc., 1973
Excessive Delay In The Courts: Toward A Continuance Policy Relating To Counsel And Parties, Thomas O. Gorman
Excessive Delay In The Courts: Toward A Continuance Policy Relating To Counsel And Parties, Thomas O. Gorman
Cleveland State Law Review
The maxim "Justice delayed is justice denied" is an expression which is becoming all too meaningful in our courts today. Many of the large metropolitan courts in this country are being strangled by the ever-increasing backlog of cases. ...In most court systems, continuance policies are either non-existent or couched in vague terms such as "good cause shown.' It is the aim of this study to formulate guidelines for a sound continuance policy which will serve to speed the administration of justice without interfering with the high standard of judicial fairness necessary to proper adjudication.