State and Local Government Law Commons^™

From Maps To Meadows: Ecologically Literate Zoning And The Regeneration Of Wildlife Habitats, Jonathan Rosenbloom

Cleveland State Law Review

For more than a century, zoning has shaped the American landscape, often at the expense of wildlife and ecosystems. Rooted in legal doctrines that treated animals as property and nature as a raw material, zoning codes have fragmented habitats, erased migration corridors, and accelerated biodiversity loss. At the same time, federal protections are narrowing, leaving critical gaps in environmental governance. This Article argues that local governments possess both the authority and the obligation to respond. By embedding ecological principles into zoning—through conservation districts, wildlife corridor protections, wetland buffers, pollinator protections, dark skies, wildlife fencing, habitat restoration, and others—municipalities can transform …

A Bone To Pick: Back To The Basics In Food Product Liability With A Necessary Reformation Of The "Hybrid" Negligence Standard, Clay Cutteridge

Cleveland State Law Review

Ohio does not use the traditional negligence standard in determining negligence in food product liability cases. Instead, Ohio uses what is called the hybrid test. The hybrid test analyzes what a consumer would reasonably expect to find in their food, and Ohio courts consider the naturalness of an object to the food it is in to be the determinative factor: natural objects should be reasonably expected and cannot give rise to successful claims of negligence. This hybrid test fails to consider that food is complex, and consumers often cannot know what to reasonably expect in the food they buy. The …

Looking For Loopholes: Are Suicide Notes Really Admissible As Dying Declarations?, Marc D. Ginsberg, Hugh M. Mundy

Cleveland State Law Review

The “classic” dying declaration under Federal Rule of Evidence 804(b)(2) is made by a person near death from fatal wounds or illness who makes a statement to a third party about who inflicted the wounds or caused the illness. The rule is based on the belief that persons making such statements are unlikely to lie as the sense of impending death removes “all temptation to falsehood.” Thus, in theory, the dying declaration bears an imprimatur of trustworthiness justifying its admission as a hearsay exception.

Still, the exception for dying declarations has been described as “the most mystical in its theory …

Dignity For The Deceased: The Abolition Solution To The Laws Governing Unclaimed Body Donation, Lauren Bayerl

Cleveland State Law Review

This Note explores the dangers bubbling under the surface of body donation law across the United States. Specifically, this Note investigates the little-known contours of Ohio law that open the door for body donation practices that may bypass an individual’s consent. While data is slim on the real-world outcomes that such quirks in state law have produced, a recent news story out of Texas highlights the very real danger that the structure of these state body donation laws can produce. This Note first details the laws in place in Ohio that govern body donation, using one state’s laws as a …

Ad Astra: Now Is The Time To Allow States To Claim Territory In Space, John Swansinger

Cleveland State Law Review

The Outer Space Treaty is based on the idealistic principle that space is the common heritage of mankind and prohibits the acquisition of territory by states in space. However, as space becomes increasingly accessible, this principle has come under threat. Private actors and more developed states are far more capable of accessing space than less developed states. Accordingly, these developments have threatened the basic ideals of the Outer Space Treaty that a vast majority of states have agreed to. This Note will introduce and explore the background and development of the Outer Space Treaty to explain these idealistic principles and …

A Pervasive Principle And A Proposal For Postconviction Procedures: Res Judicata, Pro Se Petitions, And A Defendant's Right To Counsel In Ohio, Lila Robinson

Cleveland State Law Review

“A postconviction petition is very difficult to win.” This is especially true in Ohio. Many postconviction petitions are submitted by incarcerated pro se petitioners who draft and file petitions without the assistance of counsel, leaving the doctrine of res judicata free to overwhelm their claims and inhibit future relief. The American Bar Association advises states to impose a right to counsel in postconviction proceedings, and specifically at the early drafting and filing phase of postconviction litigation, to help remedy this issue. Ohio does not follow this suggestion. As a result, petitioners with valid claims of innocence or manifest injustice are …

Valentine Act And Sherman Act: Separate And Distinct Antitrust Regimes, Thomas J. Collin

Cleveland State Law Review

The Ohio Supreme Court has held that the Valentine Act was patterned after the Sherman Act and should be interpreted in light of federal court interpretations of the Sherman Act. The Court was wrong, and its error persists. With the exception of a private right of action provision and a borrowed definition, nothing in the Valentine Act was derived from the Sherman Act. The holding ignores text and legislative history and has foreclosed development of any independent jurisprudence for a statute intended by the General Assembly to address grave antitrust abuses. This Article analyzes the Court’s error, details the origins …

Unfollowing Censorship: A Policy-Oriented Analysis Of Government Pressure On Social Media Content Management, William C. Morgan

Cleveland State Law Review

The introduction of social media has facilitated communications and connectivity globally. However, in recent years, social media companies have started to adopt content moderation practices that are directly influenced by government pressure to comply with their requests to arrange information. Typically, these newly adopted practices often aim to censor or diminish the exposure of certain views, comments, and/or posts that the U.S. government, through its actors, dislike or find threatening to national security. This paper examines how informal government outreach to indirectly monitor, and control social media companies’ content moderation practices undermine the platforms’ constitutionally protected editorial autonomy. Consequently, this …

The Pursuit Of Municipal Sovereignty: How The Ohio Legislature Is Attempting To Violate The Right To Local Self-Governance, Cole Sundermann

Cleveland State Law Review

This Note examines the Ohio Legislature’s recent efforts to undermine the constitutional right to local self-governance guaranteed by the Ohio’s home rule amendment within the Ohio Constitution. By focusing on Senate Bills 91, 137, and 158, it analyzes the legislative initiatives aimed at preempting municipal powers to implement participatory budgeting and ranked-choice voting systems. These bills exemplify a broader trend of the Legislature’s attempt at eroding municipal autonomy in Ohio, cutting against the principles of local sovereignty established by the 1912 Constitutional Convention. The Note argues that such preemption efforts violate the core right to self-governance as interpreted by the …

“Very Little Cause At All”: The Erosion Of Job Security For Ohio Teachers, Philipp Corfman

Cleveland State Law Review

As education becomes an increasingly divisive partisan issue, with teachers caught in the crossfire, it is more important than ever that teachers have protection from unfair or politically-motivated terminations. The Ohio Teacher Tenure Act was enacted 80 years ago to give teachers this essential job security. However, this Note examines the bizarre fact that, after a recent series of state court opinions, the Act now gives Ohio teachers less job security than other unionized public employees. By essentially forbidding adjudicators of teacher terminations from considering proportionality, length of service, and due process, these holdings leave teachers in a far more …

Her Bun + My Oven = Our Child: Protecting The Legal Parentage Of Lgbtq+ Mothers And Their Children Conceived Via Reciprocal In Vitro Fertilization In Ohio, Courtney Hutchinson

Cleveland State Law Review

This Note discusses legal parentage in Ohio for two-women couples who expand their families via reciprocal in vitro fertilization or egg-sharing, where one woman is the genetic parent and the other is the gestational parent. Currently, the gestational mother is guaranteed legal parentage at the time of the child’s birth, while the genetic mother must petition the court for a formal adoption to protect her legal rights. A thorough review of court precedent regarding same-sex marriage makes clear that the public policy of Ohio permits two women to share in the legal rights of parentage. Furthermore, Ohio courts have regularly …

A Mistake For The Lake: Why Ohio Should Rethink Its Ban On Rights Of Nature For Lake Erie, Shelby Strohl

Cleveland State Law Review

“Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” - Professor Christopher Stone. The purpose of the rights of nature movement is to recognize that ecosystems and natural entities have the right to exist and thrive. Rights of nature give the natural entities legal protections against pollution and other harms. This Note recommends that the Ohio legislature reconsider its stance on prohibiting rights of nature under Ohio Revised Code Section 2305.011. This recommendation stems from the groundbreaking Lake Erie Bill of Rights, which granted rights of nature to Lake Erie in …

Education’S Inextricable Ties To Democracy: Brown V. Board Of Education And Its Democratic Aspirations, Kayla Griffin Green

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Shadows Of The Crown: The Virtue Of Equilibrium In American Sovereign Immunity, William T. Olmstead

Cleveland State Law Review

Under the doctrine of sovereign immunity, the federal and state governments of the United States cannot be sued or prosecuted unless they voluntarily waive their own impunity. In recent decades, the Supreme Court has expanded the scope of the sovereign immunity of the state governments. This Note argues that such an expansion is a profound and shortsighted mistake. It proposes that the most effective way to balance governmental functionality with civic accountability is to pass and ratify a constitutional amendment that solidifies national sovereign immunity and abolishes state sovereign immunity. It argues that such action is necessary to ensure the …

Custodians Of Civility, Defenders Of Democracy, Guardians Of Justice, Lee Fisher

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Democracy & The Ohio Constitution – Recapturing The Innovative Spirit Of The 1912 Ohio Constitutional Convention, Melody J. Stewart

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Cleveland State Law Review

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering.

But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

A Proposal To Rebalance Direct Democracy In The Ohio Constitution, Mark Wagoner

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Improper Indeterminate Incarceration: Navigating The Constitutional Quandaries Of The Reagan Tokes Law's Powers And Procedures, Sophie M. Piteo

Cleveland State Law Review

This Article advocates for an amendment to the statutory provisions that make up Ohio’s indefinite sentencing scheme to better protect offender’s constitutional rights. Through an analysis of the Reagan Tokes Law and the Ohio Supreme Court’s ruling in State v. Hacker, this Article traces the evolution of Ohio’s indefinite sentencing framework, which was reinstated in 2019. It contrasts the current scheme with the previously invalidated, but very similar, Bad Time Law, which was struck down in 2000 for violating the separation of powers clause and due process rights. While the Reagan Tokes Law emerged from concerns for public safety …

Direct Democracy: Ohio Style, Steven H. Steinglass, Ernest M. Oleksy

Cleveland State Law Review

This Article is an expansion of comments by Steven H. Steinglass at a Symposium on Democracy sponsored by the Cleveland State Law Review and held on October 27, 2023. The Symposium looked broadly at threats to democracy, but the panel on which he participated focused more narrowly on the Ohio Constitution and Democracy. The Article reviews the history of direct democracy in Ohio with an emphasis on the constitutional initiative. Part I of this Article discusses the historical origins of direct democracy in Ohio and the iconic Ohio Constitutional Convention of 1912 that proposed Ohio’s direct democracy amendment. Particular …

Losing My Religion: How Ministerial Exception Expansion May Negatively Impact Interpretation Of C.R.O.W.N. Act Laws, Ashley Corbin Rice

Cleveland State Law Review

Across the country, black students are policed in schools for their natural hair and protective hairstyles. As a result of this, students who do not conform to their school’s grooming policy or dress code may suffer stiff consequences including being suspended or expelled. The most notable federal piece of legislation in response to this issue was introduced in December 2019. The CROWN Act prohibits race-based hair discrimination on the federal level. The bill passed the House but the Senate blocked it in December 2021.

Despite this recent development, states and municipalities are enacting the CROWN Act across the country. Over …

Contract Law, Equality And The State, Orit Gan

Cleveland State Law Review

There is a rich and diverse literature on contract law and equality, discussing whether contract law should advance social equality and if so how should contract law achieve that. However, this literature has yet to address the State’s role in combating social inequality through contract law. Filling this void this Article discusses three strategies the State can and should adopt in promoting social equality, by enforcing contracts, applying contract law doctrines, and regulating and legislating laws as background rules. After mapping these three state powers the Article further explores three test cases: enforcing nonmarital agreements, applying contract defenses in consumer …

Pleading For Justice: Analyzing Ohio’S Wrongful Conviction Compensation Statute And The Guilty Plea Disqualification Provision, Paige Betley

Cleveland State Law Review

Innocent until proven guilty? For some who have walked through the criminal justice system, this American adage did not seem to ring true. The criminal justice system has produced many wrongful convictions, which is an unthinkable injustice. These individuals must then fight for compensation to get back on their feet in society after spending years, if not decades, unjustly behind bars. Ohio’s wrongful conviction compensation statute perpetuates this injustice by categorically excluding exonerees who pled guilty to a crime they did not commit from receiving compensation from the State, with no exceptions. This Note critically analyzes the inherent harms from …

Filling The Potholes Of Pretextual Traffic Stops: A Better Road Forward For Ohio, Jordan Weeks

Cleveland State Law Review

The Fourth Amendment was one of the driving forces behind the United States Revolution. This Amendment generally protects individuals against “unreasonable” searches and seizures. But what does “reasonable” mean in the context of a traffic stop?

In 1996, the U.S. Supreme Court in Whren v. United States tried answering this question. In so doing, the Court determined that pretextual traffic stops are “reasonable.” Pretextual traffic stops occur where an officer stops a vehicle and cites a lawful reason for the stop, yet the underlying reason is unlawful. The Whren Court determined that an officer’s intent is completely irrelevant to whether …

Protecting Our Pups At All Costs: Why Dogfighting Cases Require A Mandatory Restitution Assessment, Ayah Ighneim

Cleveland State Law Review

This Note recommends that Congress acknowledge the dangers behind dogfighting by updating the federal mandatory restitution statute to include “animals” within the definition of a “victim” eligible to receive restitution and by updating federal animal-cruelty laws. This recommendation stems from the popularization of dogfighting in the twenty-first century. Specifically, this Note articulates the link between the prevalence of dogfighting in America and the lack of deterrence targeted toward dogfighting in America. This Note then argues that this lack of deterrence is a result of the lack of Congressional guidance within both the federal restitution statute and within federal animal-cruelty laws. …

The Anti-Constitutionality Of The Deeply Rooted Test In Dobbs V. Jackson, Reginald Oh

Cleveland State Law Review

The deeply rooted in history test used by Justice Alito in Dobbs v. Jackson to overturn Roe v. Wade is anti-constitutional. In Dobbs, Alito concluded that, because a majority of states in 1868 criminalized abortion, abortion is not deeply rooted in history, and is therefore not a fundamental liberty under the Fourteenth Amendment Due Process Clause. However, relying on state laws in 1868 to interpret constitutional text not only has no basis in the Constitution, it goes against the fundamental nature of the Constitution as an integrated whole. What I call the Integrated Constitution is based on Chief Justice John …

R.E.S.P.E.C.T.: The Court's Forgotten Virtue, Camille Pollutro

Cleveland State Law Review

This Article recommends a shift in constitutional interpretation that requires the existence of respect for the class at issue when a fundamental right is being considered under the narrow, historical deeply rooted test of the Fourteenth Amendment. By focusing on Dobbs v. Jackson Women’s Health Organization, this Article highlights that the class at issue—women—are having their fundamental rights decided for them by the legal sources of 1868. In applying this strict and narrow historical deeply rooted test, the Court fails to consider the lack of respect and autonomy that women had in 1868. To the Court, if twenty-eight out …

Taking The Gavel Away From The Executive Branch: The Indeterminate Sentencing Scheme Under S.B. 201 Is Ripe For Review And Unconstitutional, Jessica Crtalic

Cleveland State Law Review

In 2019, Senate Bill 201, also known as the Reagan Tokes Act, reintroduced an indeterminate sentencing scheme in Ohio whereby sentences are assigned in the form of a range. Under this sentencing scheme, the Ohio Department of Rehabilitation and Correction, through the parole board, has discretion to retain an inmate past the presumptive release date. This fails to afford the accused their guaranteed right to a jury trial, improperly places judiciary power in the hands of the executive branch, and scrutinizes the violation of due process such that the defendant is being denied a fair hearing and notice. Not only …

Concealing More Than Your Affairs: A Deep Dive Into The World Of Cryptocurrency And Its Future Influence On Family Law In Ohio, Milica Prica

Cleveland State Law Review

This Note dives into the world of cryptocurrency and family law in Ohio. With its current popularity and dramatic fluctuations, cryptocurrency has created a new legal issue in the family law practice. Specifically, this Note focuses on the concealability of Bitcoin and how that influences division of property, spousal support, and child support in Ohio divorce proceedings and settlements. To tackle this issue, this Note begins with the history of Bitcoin, its value since the beginning, as well as the reason for its fluctuations. This Note also looks into what makes Bitcoin and other cryptocurrency forms so concealable. This Note …

Bans On Bags Or Bans On Bans?: A Home Rule Analysis Of Recent Attempts In Ohio To Enact Legislation Eliminating Plastic Bags From Stores, Christine Mika, Karin Mika

Cleveland State Law Review

This Article addresses how Ohio’s Home Rule provision in the Ohio Constitution has played out as legislators grapple with efforts to ban plastic bags from stores. It discusses the complexities of the Home Rule doctrine in Ohio, especially as it relates to the competing authority of state, county, and municipal governments. The Article discusses the history of Home Rule in Ohio, and the pre-emptive relationships between the competing governmental entities stemming from the existence of County and Municipal Charters that also grant legislative powers. It explains that the opting out of plastic bag bans by Ohio municipalities is a valid …