Et Cetera is the Cleveland State Law Review's foray into twenty-first century legal scholarship. With the objective of contributing to the evolution of online legal scholarship and reaching a broader audience than that of our traditional print format, Et Cetera allows authors to disseminate their work more quickly than through the traditional print medium while still receiving a traditional print citation.
INNOCENT UNTIL PROVEN ARRESTED: HOW PRETRIAL JUVENILE DETENTION FOR NONVIOLENT OFFENDERS IN OHIO INFLICTS CONSTITUTIONAL VIOLATIONS
70 Clev. St. L. Rev. Et Cetera 79 (2022)
When a juvenile is accused of committing a crime in Ohio, juvenile court judges must determine whether to detain the child pretrial in a juvenile jail or permit the child to go home to await trial. Whereas alleged adult offenders have the right to pay a monetary bond to be released from jail pretrial, juveniles have no such right. Thus, once a judge makes the decision to detain a juvenile pretrial—prior to being adjudicated delinquent of any crime—it is difficult for that decision to be undone. While incarcerated, juveniles suffer irreversible psychological, emotional, mental, and social harms, despite juvenile courts being created on the principles of treatment and rehabilitation for less culpable juvenile offenders.
The Ohio Rules of Juvenile Procedure dictate the circumstances in which a judge may detain a child pretrial. These rules, however, are overly vague and provide juvenile court judges too much discretion in determining when to remand a child pretrial, ultimately violating juveniles’ due process rights. This Note argues that the Ohio Rules of Juvenile Procedure governing pretrial detention should be revised to restrict the use of pretrial detention for only the most violent juvenile offenders and reserve pretrial detention for use only as a last resort. Limiting the use of juvenile pretrial detention in these ways will give Ohio children a fighting chance at a successful adult future.
Returning the House of Representatives to the People: An Apportionment Amendment Proposal Advocating for the Cube Root Rule
70 Clev. St. L. Rev. Et Cetera 51 (2022)
Since the approval of the Permanent Apportionment Act of 1929, the number of representatives in the United States House of Representatives has been capped at 435. While the “People’s House” has seen no growth since 1929, the United States population has nearly tripled since that time to 332 million people in 2022. Without additional representatives to accommodate this larger population, Americans have diluted voting power, representatives are more distant from the constituents they supposedly represent, partisanship stonewalls any productive legislation from being passed, an imbalanced Electoral College clouds the will of the people in selecting their president, and a lack of stable congressional districts allows for more opportunities for political parties to gerrymander districts in their favor.
This Note seeks to rectify these issues through a “Cube Root Amendment” to the Constitution. This Amendment would calculate the number of representatives in the House according to the cube root of the United States population. An additional provision adds districting language to force the courts to listen to constitutional claims about gerrymandering. This Note will demonstrate that the Amendment will result in more equitable representation, improve a currently flawed Electoral College scheme, and aid in fighting against gerrymandered districts.
DISQUALIFYING QUALIFIED IMMUNITY
70 Clev. St. L. Rev. Et Cetera 1 (2021)
The relationship between municipal responsibility and municipal liability in civil suits concerning local police officer misconduct is flawed. Cities have almost unlimited control over their police departments but lack almost any control over the civil litigation of their officers, aside from city attorneys representing them. In police misconduct cases, city attorneys representing police officers are required to invoke any available affirmative defenses, either common law or statutory, regardless of the moral convictions of the city attorneys, city legislators, or local citizens. To bridge the logical gap between municipal responsibility and the lack of municipal control over police misconduct litigation, this Note argues that the Ohio Revised Code should be amended to allow municipalities full control over the civil litigation of their police officers, including which affirmative defenses the city attorneys must invoke. This solution would allow municipalities the choice of whether to invoke defenses like qualified immunity or the statutory defenses in the Ohio Revised Code, returning the power over civil litigation to the entity that bears financial responsibility if the police officer or municipality is held liable.
Is it Really Safe to Provide Banking Services to Marijuana-Related Businesses? The Marijuana Banking Dilemma
69 Clev. St. L. Rev. Et Cetera 55 (2021)
As more and more states begin to legalize marijuana, marijuana-related businesses such as dispensaries are cropping up all over the United States. Like most other legitimate businesses, marijuana-related businesses need a safe place to keep their money. However, unlike most other legitimate businesses, marijuana-related businesses often cannot find banks that are willing to do business with them. This is because banks are heavily governed and regulated by federal law, and marijuana is still illegal on a federal level—even where states have legalized its use. Although federal guidance on the subject has been issued, many legal “gray areas” continue to exist, making banks unwilling to take the risk of working with marijuana-related clients.
In order to solve this problem, several bills have been proposed to legalize some aspects of the marijuana business on a federal level. Such proposed bills include the SAFE Banking Act, which, had it become law, would have prevented federal regulatory agencies from punishing banks working with legally operating marijuana-related clients while fully legalizing such banking activities under federal law. However, this kind of piecemeal legislation has some serious flaws that would allow the federal illegality of marijuana to hinder the growth of marijuana-related businesses. A lack of protection for end users of marijuana products, the omission of provisions providing relief from a myriad of cumbersome regulatory paperwork requirements, and the bill’s failure to address the federal ban on marijuana research are just a few of the reasons that the SAFE Banking Act (and similar piecemeal marijuana legislation) would be much too narrowly tailored to accomplish its goal of aiding the growth of the marijuana industry by allowing banks to legally handle marijuana-related clients. Thus, complete legalization of marijuana on the federal level is the best path forward for banks and their marijuana-related clients.
If Not Now, When? Finding Jurisdiction To Review Immigration Enforcement Action in the Trump Era
Elizabeth L. Jackson
69 Clev. St. L. Rev. Et Cetera 29 (2021)
The Trump Presidency left an indelible mark on the U.S. immigration system. From extreme enforcement practices to unconstitutional policies, the vast power of the executive branch and the underutilized strength of the judicial branch was thrust into a harsh light. The failure of lower courts to adequately understand and apply the narrow construction of jurisdiction-limiting statutes created unjust and absurd results on a number of issues, from the targeting of immigration activists for enforcement actions to the so-called Migrant Protection Protocols. The consistent application of Supreme Court precedent allowing for Federal jurisdiction in this area remains absolutely necessary to right the ship of U.S. immigration policy and enforcement. It will provide avenues for justice for those harmed by Trump administration policies and flex the previously atrophied muscle of the judicial branch in immigration law.
The Evolution of Data in Sports Betting and its Legal Ramifications on the Privacy and Protections of College Athletes
Bryan B. Fisher
69 Clev. St. L. Rev. Et Cetera 1 (2021)
Have you ever placed a sports bet before? Did you win… or did you lose? Did it come down to the final seconds… or did you regret your decision before the game even reached halftime? At times, betting on a sports team can seem like a sure-fire win. Unfortunately, it can be nearly impossible to truly know a result before it happens, especially in the sports industry, where a simple bad bounce can alter the final score, effectively causing millions of dollars to change hands. But what if there was a way to know something about the game that others don’t?
Now, I’m not implying that a real-life Marty McFly walks amongst us. Instead, I want to take you back to October 29, 2020. In two days, the No. 2 ranked Clemson Tigers were set to take on the Boston College Eagles. At this time, placing a bet on the underdog, Boston College, to win the game could have been disregarded as a waste of money. However, pandemonium quickly struck the college football world as it was announced that Clemson’s star-QB and projected first-overall pick in the 2021 NFL Draft, Trevor Lawrence, tested positive for COVID-19. In just a matter of minutes, Boston College’s chances of pulling off an upset changed, and the sports betting lines adjusted accordingly. A bet on Boston College to win would now result in a lower expected return. That same person who placed the bet before Trevor Lawrence’s positive test though, might now be heralded for their extreme foresight, albeit lucky.
Unfortunately, Boston College squandered a surprising halftime lead, thus ruining the day for any bettor pulling for the Eagles. However, this doesn’t mean these types of events are uncommon within sports. Something that once seemed so drastic has now turned into an almost every-night occurrence. Professional and collegiate sports leagues have attempted to play through the pandemic, while at the same time learning of positive tests of their players at random. When a player tests positive, he or she sits out, often for extended periods. And when a player sits out, the betting line changes. These instances aren’t simply limited to a pandemic, though. Much like the stock market, betting odds on sporting events change rapidly, sometimes by the second, effectively allowing individuals the chance to capitalize on this invaluable information. But what is it that drives these sports betting decisions? What is it that can be such a determinative factor in a team’s chance of winning or losing a game? The answer is data.
If you were to ask a professional gambler, or even someone reasonably familiar with sports betting, they’ll say that you bet the numbers, not the teams. But what happens when a new subset of data changes the playing field? Are athletes protected in the ways we previously thought? Or is their data subject to exploitation in an industry just starting to take stride?
Conspiracy Allegations in the Stock Loan Market:
Why Plaintiffs Should be Seeking a Remedy in Congress and not in Court
Danielle P. Katz
68 Clev. St. L. Rev. Et Cetera 15 (2019)
This Article first provides a comprehensive analysis of conspiracy allegations in over-the-counter markets, focusing on the stock loan market as an exemplar.
Multiple conspiracy claims, implicating antitrust law, have been brought regarding over the counter markets since the financial crisis of 2008. The biggest banks in the country have been the center of novel complaints, new regulations, and innovative legislation in the recent years. But, despite regulation and legislation, Sherman Act litigation alleging conspiracy has endured as plaintiffs claim that big banks are conspiring to fix markets when, in fact, they are exercising economies of scale to provide unique, tailored products to sophisticated consumers who seek an edge in the market. This Article uses Iowa Public Employees' Retirement System v. Bank of America, a recently filed complaint in the Southern District of New York, as an analytical tool to demonstrate why arguments regarding antitrust conspiracy in unique, large-scale financial transactions fail to make plausible antitrust claims and, instead, are the by-products of market conditions and sophisticated bargaining.
This Article ultimately concludes that the plaintiffs alleging conspiracy in the stock lending market and over-the-counter markets, in general, do not have a judicial remedy available to them. Instead, as sophisticated, large clients, their remedy is legislative and regulatory (assuming that a remedy is warranted).
From Fitbits to Pacemakers: Protecting Consumer Privacy and Security in the Healthtech Age
Justin Evans and Katelyn Ringrose
68 Clev. St. L. Rev. Et Cetera 1 (2019)
As wearable and analytics technology continues to be aggressively adopted, there is a congruent rise in data collection from wearable healthtech devices. This unprecedented rise in data collection poses massive privacy and security issues. This note addresses the benefits of IoT healthcare wearables and implants, as well as identifies where the privacy and security of data accrued by such devices could be improved. In an effort to better encapsulate the issue surrounding wearable device data collection, the authors analyze the many benefits of wearable healthcare devices, as well as look into the false sense of trust consumers have in the privacy and security of their healthcare information. The authors discuss how consumer protections under current healthcare laws are lacking. In conclusion, they look to the future of wearable devices and how the data they generate and retain should be stored and protected in light of its sensitive nature.
Does Janus vs. AFSCME Signal the Death of Mandatory Bar Associations?
67 Clev. St. L. Rev. Et Cetera 4 (2019)
In Janus vs. AFSCME, a closely-divided U.S. Supreme Court overturned a 41-year-old precedent and ruled that the practice of public sector unions charging agency fees to non-members in bargaining units, without affirmative consent, was “compelled speech.” The dissent warned that the decision had weaponized the First Amendment, and noted that “almost all economic and regulatory policy affects or touches speech.”
Does the logic of Janus apply to mandatory bar association dues? There is strong evidence it does. And if it signals the death of mandatory bar associations, would that necessarily be a bad thing for the legal profession? This essay examines the evidence, particularly as it involves the author’s own licensing jurisdiction of the state of Washington, and makes the argument that the traditional bar association model is a thing of the past.
Treating Neighbors as Nuisances: Troubling Applications of Criminal Activity Nuisance Ordinances
Joseph Mead, Megan E. Hatch, J. Rosie Tighe, Marissa Pappas, Kristi Andrasik, and Elizabeth Bonham
66 Clev. St. L. Rev. Et Cetera 3 (2018)
Thousands of cities nationwide enforce Criminal Activity Nuisance Ordinances that catalyze the eviction of tenants when there are two or more police visits to a property. We report findings of an empirical study of enforcement of nuisance ordinances, finding that cities often target survivors of domestic violence, people experiencing a mental health crisis, nonprofit organizations serving people with disabilities, people seeking life-saving medical intervention to prevent a fatal drug overdose, and non-criminal behavior such as playing basketball or being “disrespectful.” Codifying into public policy a path to homelessness in these instances is not only cruel and counterproductive, but likely violates the Fair Housing Act and the Constitution.
Losing the Spirit of Tinker v. Des Moines and the Urgent Need to Protect Student Speech
David L. Hudson, Jr.
66 Clev. St. L. Rev. Et Cetera 2 (2018)
Nearly fifty (50) years ago, the U.S. Supreme Court declared in Tinker v. Des Moines Independent Community School District that public school students did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” It remains the seminal case on K-12 student speech rights in the United States of America and the “high water mark” of student rights. One of the litigants in the Tinker case, the late Christopher Eckhardt, stated: “What George (Washington) and the boys did for white males in 1776, what Abraham Lincoln did to a certain extent during the time of the Civil War for African-American males, what the women's suffrage movement in the 1920s did for women, the Tinker case did for children in America."
The Tinker case led to a new era for student speech, increased litigation over school dress codes and hairstyles and created a fundamental appreciation that young persons were truly persons under the Constitution who had constitutional rights that needed to be respected.
Sadly, that day has passed and gone. Today courts increasingly restrict student discourse even under the speech-protective standard that Justice Abe Fortas pronounced for the Supreme Court in Tinker. Students live in an environment that does not respect their constitutional rights. Sadly, this is creating a generation of younger persons who don’t have the same level of appreciation for the supreme importance of freedom of speech.
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Three Approaches To Freedom of Speech
R. George Wright
66 Clev. St. L. Rev. Et Cetera 1 (2018)
It has been said that in the field of quantum theory, there have been periods when even second-rate scientists could do first-rate work. This raises, however, the possibility that there may also be periods in which even the best theorists in a field can make contributions that rate only as good. It is proper to classify each of the free speech writers discussed as first rate. But it is also possible that the age in which they write inhibits the production of genuinely great work with a genuinely common goal.
The underlying problem for today’s free speech theorists is no doubt multifaceted. But one important aspect thereof may involve our collective poring over the glittering remnants of a shattered mirror, even as our understandings of the possible uses of a mirror become increasingly unclear, contested, or unstable.
In this respect, consider, without the slightest attempt to assess on the merits, the presumptive speech libertarianism of Floyd Adams, the contextually sensitive functional value balancing of Steven Shiffrin, and the broad scope of coverage view of Mark Tushnet, Alan Chen, and Joseph Blocher.
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How The Tenth Amendment Saved The Constitution, Contradicts The Modern View of Broad Federal Power, and Imposes Strict Limitations
Steven T. Voigt
64 Clev. St. L. Rev. Et Cetera 2 (2016)
This paper challenges the position that the Tenth Amendment merely states an abstract concept and has no place in constitutional interpretation. The history of the Tenth Amendment portrays a much greater significance for this amendment. Not only did the Tenth Amendment likely save the Constitution and preserve the union, but it imposed very real restraints on federal power. The implication for modern courts is that the Tenth Amendment cannot be ignored. Far from just stating a truism, it sets forth a constitutional rule of interpretation that must be applied whenever the scope of any federal power is examined.
The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, and Water Law
Colin W. Maguire
64 Clev. St. L. Rev. Et Cetera 1 (2015)
Making big news in legal circles and on Capitol Hill was the approval of the EPA and US Army Corps of Engineers’ new agency rule regarding the definition of “Waters of the United States” under the Clean Water Act (CWA). In a nutshell, these government agencies can regulate development or industrial activity that impacts the “Waters of the United States.” Allegedly new science shows that there are significant hydrological connections between small streams and wetlands, also known as tributaries, areas around those tributaries, and larger bodies of water; this creates more “categorical assertions of CWA jurisdiction,” and allegedly increases CWA jurisdictional assertions by as much as 5%, which is still many millions of acres of land. The EPA has even provided a handsome graphic with fun facts to demonstrate this hydrological connection as established under the new rule.
The Originalism is Not History Disclaimer: A Historians Rebuttal
Patrick J. Charles, J.D., L.L.M.
63 Clev. St. L. Rev. Et Cetera 1 (2015)
A number of originalists are on record asserting the disclaimer that orginalism is not history, therefore claiming that originalism does not suffer from the problems typically associated with history-in-law. This Article challenges that assertion, both on the grounds that originalism relies on historical evidence in reaching legal determinations—therefore falsely giving rise to the presumption that originalism and history are one and the same—and also on the grounds that originalists, when advocating before the courts, do not make a distinction between originalism and history. This Article further argues that if originalists want to issue an accurate disclaimer, it should state that originalism is not intended to be accurate history. This would correct many of the publics misconceptions as to what does and what does not constitute originalism.
A Letter to the Editor-in-Chief
In a letter addressed to The Cleveland State Law Reviews Volume 63 Editor-in-Chief, Mr. Timothy Sandefur responded to an article featured in the Law Reviews History and the Meaning of the Constitution Symposium issue: Scott D. Gerber, Liberal Originalism: The Declaration of Independence and Constitutional Interpretation, 63 Clev. St. L. Rev. 1 (2014).
Mr. Sandefur currently serves as Principal Attorney in the National Litigation Center of the Pacific Legal Foundation, and is also an Adjunct Scholar with the Cato Institute.
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