Supreme Court of the United States Commons^™

Unfriending The Kids: The Problematic Race To Childproof Social Media, Randolph A. Robinson Ii

Cleveland State Law Review

A growing number of states have recently enacted new laws with the goal of protecting young people from potential harm allegedly caused by social media use. These laws are diverse in their approaches but broadly seek to limit youth access to social media platforms by imposing age verification and parental consent requirements. These laws directly implicate the First Amendment rights of both young users who will no longer be able to access speech or speak on social media platforms as well as adult users who must now submit to age verification to access these quintessential forums for political discourse.

These …

An Era Of Silent Overruling: Lack Of Transparency In The Supreme Court And The Expanding Unworkability Doctrine, Sydney Washburn

Cleveland State Law Review

This Note examines the Supreme Court’s growing practice of “silent overruling," the effective displacement of precedent without explicit acknowledgment, and argues that this phenomenon threatens transparency, stability, and public trust in the judiciary. While the doctrine of stare decisis is intended to promote consistency and predictability, the Court has increasingly relied on the vague and discretionary “unworkability” doctrine to justify departing from precedent without clearly articulating its reasoning. Focusing on the Court’s recent decision in City of Grants Pass v. Johnson, this Note argues that the Court silently overruled Robinson v. California while purporting not to reconsider it. In …

Studying Noncitizens: Immigration, The University, And The First Amendment, Peter Margulies

Cleveland State Law Review

From its campaign against anti-war protesters in World War I to the present, the government has tried to restrict the pure political speech of noncitizens, defined as noncitizens’ expression of views about the structure and policies of the U.S. government and governments of foreign nations. Threats to academic freedom are also a hallmark of government action in this domain. Taking a page from this book, the Trump administration has targeted noncitizen students who participated in campus protests against Israel’s military actions in Gaza after Hamas’s brutal attacks on October 7, 2023.

The Trump administration’s effort has viewpoint discrimination at its …

The Supreme Court Vs. Federal Prosecutors, Scott Ingram

Et Cetera

For the past forty years, the United States Supreme Court and federal prosecutors have waged an ongoing battle over statutory interpretation. As federal prosecutors have applied broad statutory interpretations to a variety of offenses, the Supreme Court, in a rare show of unanimity, have pushed back by interpreting the statutes narrowly. Throughout this process, the Supreme Court has employed a variety of rationales to support the narrow interpretations. Beginning with federalism concerns, the Court has more recently turned to fears about arbitrary and politically-motivated prosecutions. This article traces the evolution of this battle and concludes with insights about its future …

Hbcus And Disparate Law School Rankings, Michael Conklin

Cleveland State Law Review

This Article measures the difference between perceptions of HBCU (Historically Black Colleges and Universities) law schools and their objective performance. This is conducted by comparing the disparities between each law school’s U.S. News & World Report subjective peer ranking and objective overall ranking. This novel methodology provides valuable insight into the role race plays in legal education and the practice of law. This comes at a critical juncture where issues such as the Supreme Court’s banning of race-conscious admissions, new findings regarding law school mismatch, the racially motivated rankings boycott, and the Trump administration’s aggressive targeting of colleges are all …

The Taxing Ambiguity: Defining "Return" In Bankruptcy Dischargeability Cases, Elizabeth Tsai

Cleveland State Law Review

This Note examines the circuit split over the dischargeability of tax debts tied to late-filed returns, which has led to inconsistent bankruptcy outcomes and inequitable treatment of debtors across jurisdictions. Some courts, adopting the strict “one-day-late” rule, hold that any tax return filed even a single day past its deadline is not a “return” for bankruptcy discharge purposes, permanently barring relief. Others apply a more flexible standard grounded in the Beard test, considering a debtor’s good-faith compliance efforts. This inconsistency contradicts the fresh start principle of bankruptcy law, disproportionately harms low-income debtors, and fails to serve the government’s tax collection …

The Second Amendment Right To Bear Arms, Or Lack Thereof: Assessing The Prohibition Of Unlawful Immigrants From Possessing Firearms, Anna Egensperger

Et Cetera

This Note looks at the hot button issue of whether unlawful immigrants should have the constitutional right to bear arms. Thus far, the Circuit Courts have come to different conclusions which require the input of the United States Supreme Court. Although intertwined with political views, this Note attempts to take a non-partisan stance which prioritizes the application of case law and a consistent reading of the Constitution. To provide the full context of this issue, this Note begins by describing the facts and holding of Columbia v. Heller which creates the first test for establishing a right protected under the …

The Second Amendment, Illegal Aliens, And The Bruen Test: Defending The Constitutionality Of 18 U.S.C. § 922(G)(5), Ian Duncan

Cleveland State Law Review

This Note examines the constitutionality of 18 U.S.C. § 922(g)(5), which prohibits unlawful aliens from possessing firearms, under the Supreme Court’s text-and-history framework announced in New York State Rifle & Pistol Ass’n, Inc. v. Bruen and developed further in United States v. Rahimi. In the wake of Bruen, lower courts have fractured over how strictly to demand historical analogues and how to treat longstanding status-based restrictions in § 922, including prohibitions on possession by felons, domestic-violence offenders, and noncitizens. Against that backdrop, this Note argues that § 922(g)(5) is constitutionally sound.

Part I traces the development of Second …

"The Terms And Spirit": Preserving The Purpose Of The Fair Labor Standards Act By Applying The Clear And Convincing Evidence Standard In Flsa Exemption Cases, Bridget Mccourt

Cleveland State Law Review

In 2023, the Fourth Circuit in Carrera v. E.M.D. Sales split from its sister courts by requiring employers to prove by clear and convincing evidence that an employee is exempt from the Fair Labor Standards Act (“FLSA”). The Supreme Court reversed the Fourth Circuit’s decision, resolving the split by holding that the preponderance of the evidence is the correct standard. This Note argues that the Fourth Circuit, despite failing to provide a justification for its heightened standard, was correct because it preserves the terms and spirit of the FLSA. Congress enacted the FLSA as a remedial statute aimed to alleviate …

A Rendezvous With Destiny: The President's Ftc Removals And The Rule Of Law, George Sakkopoulos

Cleveland State Law Review

In March 2025, the President removed two commissioners of the Federal Trade Commission (“FTC”). The removed commissioners called the removals unlawful and challenged them in court, citing the FTC Act’s for-cause removal protection and the Supreme Court’s decision in Humphrey’s. After President Roosevelt removed an FTC commissioner, the Supreme Court in Humphrey’s in 1935 upheld the constitutionality of the FTC Act’s removal limitation based on the FTC being expert, nonpartisan/independent, quasi-judicial, and quasi-legislative. The Court in Seila in 2020 held that the President has “unrestricted removal power” as to the executive branch unless the Humphrey’s exception for “multimember expert …

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 …

But For A Free Press: A Response To Press Freedom Skeptics, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

This Article is divided into three Parts. Part I will outline the history-in-law case forwhy the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

Remaking Rulemaking: Lessons From The History Of Federal Rule Of Civil Procedure 54(B), Brad Baranowski, Emery G. Lee Iii

Cleveland State Law Review

This Article uses the lost history of Federal Rule of Civil Procedure 54(b) to provide a framework for rulemaking at the busy intersection of complex litigation and appellate finality. The drafters of the original civil rules spent more time thinking through how to efficiently combine claims and parties in civil actions—a promised benefit of the proposed law-equity merger—than about how combined claims should be dis-assembled. This failure would haunt the original Advisory Committee on Civil Rules for years. Nowhere was this more evident than in the first decades of Rule 54(b)’s existence.

Promulgated in 1938, Rule 54(b) was designed to …

Courting Oblivion Part Ii: How To Revive American Reconstruction By Feigning Forgetfulness, Joshua J. Schroeder

Cleveland State Law Review

This is the second part of the three-part Courting Oblivion series on the legal concept of oblivion, meaning legal forgetfulness, letting go of the past, or forgiveness usually to predicate a second chance, a restart, or even an era of reconstruction. This Article demonstrates how to apply the “right to move on” described in Part I to the law in the United States through acts of oblivion and amnesty. It describes the general uses of acts of oblivion and amnesty to the general framework of government in the United States, leading to the final discussion in Part III about the …

Amgen Enablement And Its Undue Burden On An Overburdened Biomedical Industry, Carter Chippi

Journal of Law and Health

This paper examines the Supreme Court decision in Amgen Inc. v. Sanofi and its profound impact on the patentability of biotechnology inventions, particularly biologic drugs. By virtually eliminating the possibility of claiming genera patents, the decision exacerbates existing challenges within the biologic sector, including high development costs and rigorous regulatory hurdles. The analysis sets forth the enablement requirement’s precedent, emphasizing historical case law and the unforeseen implications of setting a stringent standard for biotechnology patents. This paper further critiques suggested industry compromises, deeming them insufficient to address the ramifications of Amgen, and proposes legislative intervention. Options include granting biologics …

Amicus Briefs, Retired Senior Military Officers, And The Judiciary: A Unique "Friend Of The Court," In The Constitutional Construct Of Civil And Military Relations, Joshua E. Kastenberg

Cleveland State Law Review

Military organizations, and particular, small groups of retired flag officers (generals and admirals) have increasingly filed amicus briefs to the United States Supreme Court and the federal courts of appeal. Most prominent among these are the “Becton Brief,” a group of largely Vietnam Veterans who were concerned that the Court would end any ability of the higher education system to consider race in admissions. Named after Julius Becton, a retired Army general, Vietnam Veteran, and former FEMA director, the brief’s signatories included General Norman Schwarzkopf and Admiral William Crowe, the former chairman of the joint chiefs of staff. The brief …

Diabetes Behind Bars: Dissecting Diabetic Deliberate Indifference And Delivering Inmates A More Workable Standard Under The Fourth Amendment, Maggie J. Malloy

Cleveland State Law Review

This Note examines the inadequacies of the current Eighth Amendment framework in safeguarding the constitutional rights of diabetic inmates. It contends that the subjective element of the two-pronged Eighth Amendment claim—often used to assess deliberate indifference—leads to unfair and inconsistent outcomes. To address these shortcomings, this Note draws inspiration from the objective analysis employed in Fourth Amendment excessive force claims, specifically referencing the Supreme Court’s decision in Graham v. Connor. This new framework eliminates the subjective element, and instead replaces it with three objective factors courts should consider when evaluating Eighth Amendment violations related to diabetic medical care. Through …

Incarcerated Individuals' Lives Do Not Matter: A Fourteenth Amendment Procedural Due Process Problem, Marshall Farber

Et Cetera

This Note examines the Seventh Circuit’s decision in Love v. Vanihel, in which Tony Love lost 5,700 days of good-time credit following the Indiana Department of Corrections’ issuance of Executive Directive #17-09 (“ED 17-09”). Prior to this directive, the state’s disciplinary code capped good-time credit loss at one year per offense, but ED 17-09 imposed significantly harsher sanctions, stripping Love of over 15 years of accrued credit after a single disciplinary infraction. The Seventh Circuit affirmed the district court’s decision, holding that Love had procedurally defaulted and forfeited his due process claims. This Note argues that the Seventh Circuit’s …

White Christian Nationalism & Antisemitism: A True Threat, Doron M. Kalir

Law Faculty Articles and Essays

For a short period following World War II, it seemed like the World is aspiring to become a better place. Article I of The Universal Declaration of Human Rights reflected that notion, announcing that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” That was the closest we, as a family of nations, ever came to fulfill the “dream of reason”—a state where we all work together, free from hate and prejudices, towards a common goal: A better world …

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 …

The Dignitary Harms Of Racism In Public Education: Expanding The Lens Of Brown Beyond Segregation, Kumar Ramanathan, Matthew D. Nelsen

Cleveland State Law Review

Reflecting on the 70th anniversary of Brown v. Board of Education, we reconsider the landmark ruling’s conception of dignitary harm in public education. In its argument against the separate-but-equal standard that undergirded segregated schools in the South, the Supreme Court focused on the psychological harm that segregation imposed on Black children. Building on past critiques, we argue that the Court’s analysis was too narrow: the psychological harm it identified is only one of many forms of dignitary harm that racially marginalized students can face in schools. Importantly, dignitary harms can persist even in integrated schools and classrooms, through practices …

The Decline Of Representation Reinforcement In The Supreme Court: Increasing Deference To The Political Process, Jonathan L. Entin

Cleveland State Law Review

The Supreme Court has often interpreted the Constitution with an eye toward ameliorating failures of the political process. Over the past two decades, however, the Court has retreated from that concern with representation reinforcement. This article examines decisions upholding restrictive voter identification laws, making it more difficult to prove violations of the Voting Rights Act, and preventing federal courts from hearing claims of partisan gerrymandering. Some decisions that seem sympathetic to failures of the political process will not really promote representation reinforcement, and the Court’s most recent cases further reinforce the Court’s skepticism of claims of failures of the political …

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 …

Transcript: Rethinking Federalism In Health Care, Allison Whelan

Journal of Law and Health

The following is a transcript from Racial Disparities and Outcomes presented at Cleveland State University College of Law by the Journal of Law and Health on Friday, February 9, 2024. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.

Medical Consensus On Gender Affirming Care's Critical Impact On Incarcerated Black Transgender Women, John Parsi

Journal of Law and Health

In Kosilek v. Spencer the U.S. Court of Appeals for the First Circuit adopted The World Professional Association of Transgender Health Standards of Care (WPATH SOC) as medical consensus on gender affirming care and held that Michelle Kosilek could access gender affirming care but that she did not meet the criteria for gender affirming surgery. In Gibson v. Collier the U.S. Court of Appeals for the Fifth Circuit with a sparse record and no expert testimony denied Vanessa Lynn Gibson access to gender affirming surgery and incorrectly claimed that Kosilek did not support the WPATH SOC as representing the medical …

The Second Amendment’S Domestic Violence Problem: How Rahimi Exposes The Flaws Of Bruen’S Problematic Historical Analogue Test, Conner Greene

Cleveland State Law Review

This Article exposes the flaws of the Supreme Court’s historical analogue test established in Bruen. It details how modern Second Amendment jurisprudence evolved to a tenuous position through Heller and McDonald where the Supreme Court seemingly acknowledged the applicability of means-end scrutiny to the Second Amendment, before the Supreme Court more recently repudiated its use in Bruen in lieu of an inherently flimsy history-only standard that fails to account for modern societal issues. This approach not only severely undermines modern gun regulations—unanimously upheld as constitutional pre-Bruen—but it elevates the Second Amendment to a special status unlike other …

Washington V. Glucksberg’S Original Meaning, Marc Spindelman

Cleveland State Law Review

This Article elaborates and defends Washington v. Glucksberg’s original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.

The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court’s Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. …

Courting Oblivion Part I: How To Predicate An Act Of Oblivion On The Right To Move On, Joshua J. Schroeder

Cleveland State Law Review

This is the opener of the three-part Courting Oblivion series on the legal concept of oblivion, meaning legal forgetfulness, letting go of the past, or forgiveness, usually to predicate a second chance, a restart, or even an era of reconstruction. This Article opens the Courting Oblivion series by demonstrating how blind-deaf concepts of justice are fundamentally ignorant of the rights and powers of oblivion. The series’ second and third parts will explain more about how acts of oblivion can secure governmental legitimacy and why oblivion needs to be enacted for whistleblowers generally.

This Article defines the legal concept of oblivion …

Questioning The Legitimacy Of The Expedited Removal Process – The Tall Task Of Protecting The Constitutional Rights Of One Of America’S Most Marginalized Groups, Jacob J. Bourquin

Cleveland State Law Review

This Note explores the origin and development of 8 U.S.C. § 1225—a heavily debated facet of the United States’ immigration law. Section 1225, colloquially referred to as the “expedited removal process,” has been interpreted to permit low-level immigration officers to summarily remove certain “arriving” noncitizens from the United States without affording them the procedural due process protections guaranteed under the Fifth Amendment of the United States Constitution to all individuals present in the United States. This Note posits that the current interpretation of § 1225, particularly the interpretation of “is arriving,” and application of the expedited removal process is inconsistent …

Public Accommodations And The Right To Refrain From Expressing Oneself, Mark Strasser

Cleveland State Law Review

The United States Supreme Court has been unable to articulate a coherent position when addressing the right of individuals to refrain from expressing themselves. The Court has applied various tests inconsistently—emphasizing principles in some cases, ignoring them in subsequent cases, and then emphasizing them again in later cases as if those principles had always been applied. The Court’s approach is incoherent, offering little guidance to lower courts except to suggest that public accommodations laws may soon be found inconsistent with First Amendment guarantees.