Jurisprudence Commons^™

Medical Malpractice - Statute Of Limitations - Foreign Objects - The Adoption Of The Discovery Rule - Legislative Or Judicial Prerogative? Melnyk V. Cleveland Clinic, Alan J. Sobol

Akron Law Review

The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require …

Minors Under The Age Of Seven; Incapable Of Primary Negligence Or Intentional Torts; Conclusive Presumption; Deluca V. Bowden, Robert Austin Cross

Akron Law Review

The only question considered by the supreme court was "whether a child under the age of seven is liable for primary negligence or for an intentional tort." The court noted the general incapacity of a child of this age to act with reason and foresight, and further expressed its own reluctance to attach blame to a child "in any sense comparable to the blame attachable to an adult." For these reasons it held that such a child shall be conclusively presumed incapable of both primary negligence and intentional tort.

In so holding, Ohio joins a distinct minority of states which …

Admissibility Of In-Court Identifications; Unnecessarily Suggestive Out-Of-Court Identifications; Due Process; Manson V. Brathwaite, Frank A. Barbieri Jr.

Akron Law Review

Prior to the Supreme Court's decision in Manson v. Brathwaite, a substantial amount of confusion existed concerning the judicial test which was to be applied to in-court and out-of-court criminal identification procedures. The Court, in the case of Stovall v. Denno, had first set forth a two stage test for determining whether such procedures were violative of due process. While later cases were somewhat unclear, the Stovall test continued to be used. When the Court again confronted the identification procedure question in the case of Neil v. Biggers, a new "totality of the circumstances" test was set forth. …

Anti-Fraud Provisions Of The Securities Act; Erisa; Pension Plans; Section 17(A) Private Right Of Action; Daniel V. International Brotherhood Of Teamsters, Marlene P. Emery, Barbara M. Heinzerling

Akron Law Review

In Daniel v. International Brotherhood of Teamsters the Seventh Circuit Court of Appeals held that the federal securities laws apply to disclosure of information regarding employee pension and profit sharing plans. In an era when disclosure of information has become mandatory and commonplace, it is not surprising that relevant information on pension plans should be disclosed to employees. The important aspect of this case is that disclosure was required under the anti-fraud provisions of the federal securities laws, rather than under the provisions of the Employee Retirement Income Security Act (ERISA). Questions concerning the Securities and Exchange Commission's jurisdiction over …

A Jurisprudence Of Equality: The Fourteenth Amendment And School Desegregation, Stewart Graham

Akron Law Review

This paper will deal with the meaning of equality in legal discourse and the social context which underlies that meaning.

Assessing The Role Of History In The Federal Courts Canon: A Word Of Caution, Amanda L. Tyler

Notre Dame Law Review

In undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. In support of …

Criminal Justice Act Of 1964; State Malpractice Suit Against Appointed Counsel; Ferri V. Ackerman, Sandra J. Branda

Akron Law Review

The United States Supreme Court in Ferri v. Ackerman reversed the Pennsylvania Supreme Court and held that an attorney appointed by a federal judge to represent an indigent defendant in a federal criminal trial is not, as a matter of federal law, entitled to absolute immunity in a state malpractice suit brought against him by his former client. In a unanimous opinion, the Court decided that the function of appointed counsel is more closely analogous to that of private retained counsel, who enjoy no immunity from malpractice prosecution than to that of judges and prosecutors who have traditionally been accorded …

First Amendment; Freedom Of The Press; Erosion Of New York Times Co. V. Sullivan; Herbert V. Lando, Edward Howlett

Akron Law Review

In Herbert v. Lando the Supreme Court announced that the first amendment does not require a constitutional privilege foreclosing direct inquiry into the editorial process. While the decision may seem correct in its overturning of the absolute privilege afforded to the editorial process by the Second Circuit, nevertheless, by refusing to grant even a qualified privilege to the editorial process the Court may have upset the delicate balance between an individual's interest in his reputation and society's interest in a free flow of information recognized in New York Times Co. v. Sullivan.

Equal Protection; State Alimony Statutes; Sex Discrimination; Orr V. Orr, David A. Detec, Jane L. Thomas-Moore

Akron Law Review

In Orr v. Orr the United States Supreme Court held unconstitutional the Alabama alimony statutes which provided that husbands, but not wives, may be required to pay alimony upon divorce. The Court's principal reason for so holding was the statutes' violation of the Equal Protection Clause of the fourteenth amendment on the basis of sex discrimination.

Liability Of Liquor Vendors For Injuries To Intoxicated Persons, Kemock V. Mark Ii, Elinore Marsh

Akron Law Review

In an opinion anticipating, in part, the advent of the comparative negligence standard in Ohio, Kemock v. Mark II extends common law liability to include liquor vendors who serve already intoxicated patrons who injure themselves and whose injury is the proximate result of continued alcohol consumption. Relying upon an earlier Ohio Supreme Court decision and a California Supreme Court case, the Court of Appeals of Ohio recognizes liability for vendor negligence which damages the drinker. The test for recovery is one not previously applied in cases of this sort in Ohio; one which measures liability by balancing degrees of each …

Sixth Amendment; Right To Counsel; Multiple Representation; Cuyler V. Sullivan, Howard S. Essner

Akron Law Review

In Cuyler v. Sullivan, the Supreme Court finally resolved two important issues in the areas of criminal law and the sixth amendment right to counsel. In this case, the Court is faced with a situation with which it has dealt but twice before: joint representation of criminal defendants. Cuyler represents the culmination of the legal inquiry into the problems inherent whenever a single attorney represents more than one defendant in a criminal proceeding.

Sixth Amendment; Right To Counsel; Use Of Prior Uncounseled Convictions; Lewis V. United States And Baldasar V. Illinois, Rita Marks

Akron Law Review

Once again the Supreme Court has spoken on the issue of the right to counsel. Within three months the Court rendered two decisions which appear to be inconsistent, not only with one another, but with prior decisions of the Court

Refusals To Deal By Monopolists - Recent Decisions, Thomas J. Collin

Akron Law Review

This article will review and evaluate these recent principal cases, both judicial and administrative, in which single-firm refusals to deal by monopolists have been challenged under section 2 of the Sherman Act or, by analogy, under section 5 of the Federal Trade Commission Act. It will demonstrate that there is no reason to depart from conventional monopolization analysis in deciding these cases.

The Waiver Of Juvenile Court Jurisdiction; State V. Adams, Antonia Johnson

Akron Law Review

Since Illinois created the first juvenile court system by statute in 1899, every state has enacted a juvenile justice system philosophically designed to help rather than to punish children who violate the law. The juvenile court from its inception has advocated the protection of misbehaving children from the harsh retributive philosophy of the adult criminal law. Instead of punishment it has attempted to provide methods by which to assist them to develop into mature, responsible adults.

Yet, from its inception, the proponents of the separate, specialized juvenile justice system have presumed that some children would not respond positively to its …

Constitutional Amendment; Rescission Of Ratification; Extension Of Ratification Period, State Of Idaho V. Freeman, John Carrol

Akron Law Review

The court's ruling in Freeman is in conflict with both the Supreme Court's apparent trend involving article V issues, and most of the recent scholarly opinion on point. As a result of this departure, and the fact that the ERA failed to be adopted, this decision is likely to have slight precedential value. Nonetheless, the district court's discussion of the ERA in light of recent changes in the political question doctrine has significance in interpreting article V.

Response To Professor Parness And Mr. Reagle, Jack Grant Day

Akron Law Review

I subscribe to so much of the reform suggestions proposed by the authors that I believe my response can be most useful if confined to some emphasis or expansion of concurrent views, specific reference to disagreements and support for points of reform needed but not recommended.

Symposium: Intermediate Appellate Court Practice - Problems And Solutions, Samuel H. Bell

Akron Law Review

Following these brief words of introduction is presented a collage of individual opinion - mounted, framed and presented as a reflection upon the state of today's appellate process as well as upon various problems and solutions involved therein

Occupational Safety And Health Act, Industrial Union V. American Petroleum Institute, Patrick M. Vitone

Akron Law Review

The Occupational Safety and Health Administration [hereinafter cited as OSHA] was created pursuant to Title 29 of the United States Code, to define the terms of this battle. In Industrial Union v. American Petroleum Institute, the federal judiciary has taken a hand at making these terms somewhat more clear. It is the object of this casenote to analyze the impact of the Industrial Union decision on the regulatory processes of OSHA, a task which involves a synthesis of the plurality, concurring and dissenting opinions.

Legal Issues Presented By Motor Vehicle Restraint Systems, Gary C. Fredenburg

Akron Law Review

In response to this problem, Congress enacted the National Traffic and Motor Vehicle Safety Act of 19668 for the sole purpose of "reduc[ing] traffic accidents and deaths and injuries to persons resulting from traffic accidents." Since its inception in 1968, the United States National Highway Traffic Safety Administration (NHTSA) has placed heavy emphasis on increasing the use of occupant restraint systems. In addition, the states have taken an active role in attempting to encourage, and in some instances mandate, the use of restraint devices. This comment will examine the various means employed by each in attempting to increase the driving …

Patent Law Reform Via The Federal Courts Improvement Act Of 1982: The Transformation Of Patentability Jurisprudence, Timothy J. O'Hearn

Akron Law Review

The Federal Courts Improvement Act was signed into law on April 2, 1982. Set for an effective date of October 1, 1982, the result of this enactment has been the merger of the Court of Customs and Patent Appeals and the Court of Claims into a new appellate federal court: the Court of Appeals for the Federal Circuit. Unlike most appellate courts, the jurisdiction of the new Federal Circuit is determined primarily by subject matter, rather than geography. As a result, this change in the federal judiciary will be felt directly in only a few special legal subject areas. Among …