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.
Recent Publications
A DELICATE BALANCE: ADOPTING THE FRENCH COURT OF CASSATION'S DUAL CRIMINALITY INTERPRETATION
Matthew Hosler
73 Clev. St. L. Rev. Et Cetera 19
This Note recommends potential language to be added to various States’ criminal codes to incorporate the French Court of Cassation’s interpretation of the Dual Criminality requirement for prosecutions under universal jurisdiction. This recommendation stems from research into the concept of universal jurisdiction, leading to the discovery of the May 2023 Court of Cassation’s decision that created a pathway for countries to have jurisdiction over specific international crimes despite the crime being committed in another country. Specifically, this Note details the history of universal jurisdiction and its dual criminality requirement from the 17th century to modern times. Next, the Note details the development of the doctrine and the dual criminality requirement in France through an in depth look at different historic French cases invoking the doctrine to Article 689 of the French Criminal Code which outlines the universal jurisdiction and the dual criminality requirement for specific international crimes. This historical analysis culminates with the two French Court of Cassation’s decisions which created the interpretation at issue. Finally, this Note argues for the inclusion of a dual criminality requirement for all universal jurisdiction codes along with the addition of specific language allowing for States to prosecute individuals even if their crime is not penalized in the country of origin for the crime.
THE LAST WORD ON THE OHIO CONSTITUTION
Jonathan L. Entin
73 Clev. St. L. Rev. Et Cetera 1
Jonathan L. Entin, The Last Word on the Ohio Constitution, 73 Clev. St. L. Rev. Et Cetera 1 (2024)
This essay offers a detailed overview of Steinglass & Scarselli’s significantly revised and expanded second edition of The Ohio Constitution, the leading analysis of that subject. The essay explores some broad themes, including judicial review, judicial independence, the relationship between the judiciary and the political branches of Ohio government, separation of powers, race and gender, the new judicial federalism, and the process for amending the Ohio Constitution. The book is an extraordinary resource for the Ohio bench and bar as well as for the general public. The essay explains why that is so and suggests that readers will use this remarkable book for years to come.
TO BRING OR NOT TO BRING: THE PERSONAL JURISDICTION QUESTION RAISED UNDER THE RICO STATUTE, AND HOW COURTS CAN ENSURE THE "ENDS OF JUSTICE" ARE TRULY JUST
Claire Kinnear
72 Cleveland St. L. Rev. Et Cetera 141 (2024)
The RICO Act has been confusing for courts to navigate—especially given the Due Process Clause's impact on which defendants courts may have within their personal jurisdiction. The Sixth Circuit Court recently joined a thirty-year old federal circuit split with Peter’s Broadcast Engineering, Inc. v. 24 Capital, LLC, in which the Court held that § 1965(b) is the governing subsection for personal jurisdiction in RICO cases. This Note considers the inherent conflict between the hefty goals the RICO Act sets out to accomplish, and a defendant’s constitutional right to due process of law.
This Note concludes with a new test in which courts can classify defendants as either primary or tertiary actors and apply (1) the “ends of justice” standard under § 1965(b) of the RICO Act and (2) balancing factors described forthwith to determine if the forum state does have personal jurisdiction over the defendant. In turn, § 1965(d) can be used for other processes that are not related to service of process on defendants in civil RICO actions. As a result, this new test will provide a more consistent basis of precedent for courts to build on and increase support for the majority side of the circuit split in the name of prioritizing defendants’ rights.
THE DARK PLEA: ONE OF THE MOST COERCIVE ABUSES OF POWER PERMITTED IN THE CRIMINAL JUSTICE SYSTEM
Michael P. Donnelly
72 Cleveland St. L. Rev. Et Cetera 125
Most prosecutions in our criminal justice system are resolved by defendants entering ostensibly knowing and intelligent guilty pleas—often following negotiations with the state—before trial. But during my time as a trial judge, I encountered a different type of guilty plea, procured by the state when an already convicted offender sought to clear his or her name through an application for a new trial based on newly discovered evidence. I believe the “Dark Pleas” secured in these circumstances are one of the greatest abuses of power permitted in the criminal justice process.
This article sets down in writing a speech I give to law students, legal practitioners, and citizens throughout the state of Ohio, seeking to lift the veil on a practice that few realize even exists. I begin by explaining how these guilty pleas arise in the post-conviction phase of the criminal process. Then, using examples I have encountered through my service as trial judge and supreme court justice, I show how these pleas are coercive, an abuse of the state’s prosecutorial power, and antithetical to the fundamental principles that undergird the criminal justice system. And it is because of these issues surrounding these pleas that I conclude by calling for their abolition. It is my hope that this article will help trial judges and practitioners identify Dark Pleas and understand their nefarious nature, so that they can stop this abuse of power when they encounter it.
REMODELING THE FRUITLESS LINK BETWEEN THE SECURITY COUNCIL AND THE INTERNATIONAL CRIMINAL COURT: WHY AMENDING THE UN CHARTER COULD BE THE GREATEST TRIBUTE INTERNATIONAL POLITICS HAS EVER PAID TO INTERNATIONAL LAW
Mickey Isakoff
72 Cleveland. St. L. Rev. Et Cetera 91 (2024)
Established in 2002, the International Criminal Court (“ICC”) has become a symbolic cornerstone of international criminal jurisprudence—prosecuting and convicting individuals for the commission of genocide, crimes against humanity, war crimes, and crimes of aggression—collectively referred to as atrocity crimes.
One way the ICC can lawfully exercise jurisdiction is by referral—in the form of a resolution—from the UN Security Council. The language of Charter of the United Nations and the Rome Statute collaborate to provide an avenue for the Security Council to grant the ICC jurisdiction over atrocity crime situations. Such resolutions grant the ICC full jurisdiction over the suspected criminal individual(s), regardless of whether the party has per se accepted ICC jurisdiction.
But, there is a problem. The ICC has been accused to be “all bark, no bite” by some, and as being “a giant without limbs” by others because of its scant conviction record. This has induced calls to amend or abolish the ICC. Even more troublesome is the ICC’s less-than-fruitful association with the Permanent Five members of the Security Council: China, France, Russia, the United Kingdom, and the United States. The incessant disagreement among the Permanent Five has, in effect, tied the jurisdictional hands of the ICC, permitting dozens of perpetrators of atrocity crimes to go without proper adjudication by the ICC.
International law is inherently political, and it can be difficult, if not impossible, to separate Security Council political interests from legal analysis. Therefore, a dramatic reform of pertinent articles of the UN Charter must be considered in an effort to both resolve Security Council paralysis and foster greater influence of the ICC.
The Security Council’s damaging influence on the utility of the ICC has its roots in two sources: (1) the political motives of the Permanent Five and (2), the permissive text of the UN Charter. In statutory terms, those sources are Article 27 of the UN Charter, which empowers each of the Permanent Five with an unrestricted veto when the Security Council is voting to pass a resolution, and Article 41, which affords great deference to the Security Council in determining if an atrocity crime situation is worthy of considering jurisdiction to the ICC. As a result, the Security Council has consistently neglected to draft resolutions—let alone vote on them—concerning alleged crimes and proposing ICC jurisdiction, harmfully keeping the ICC on the sidelines.
This Note proposes additions to the statutory language of Articles 27 and 41 of the UN Charter, aiming to reduce the impact of the political wills of the Permanent Five, and thereby strengthening the link between the Security Council and the ICC. The proposed amendments below may be regarded as improbable or idealistic. However, it is impossible to suggest new language to the UN Charter without some degree of far-reaching optimism—a confidence that the objectivity of the law will eventually prevail over the subjectivity of geopolitics.
INEQUITABLE BY DESIGN: THE STRATEGIC DISTRIBUTION OF COSTS AND BENEFITS BY BUSINESS IMPROVEMENT DISTRICTS AND SPECIAL ASSESSMENTS
Molly Gillespie
72 Cleveland. St. L. Rev. Et Cetera 64 (2023)
Business Improvement Districts (BIDs) are most commonly credited for their innovative strategies in rejuvenating the economic vitality in American cities. However, their implementation raises concerns about fairness and equity. The current practice of financing BIDs through special assessments, particularly applying the front footage method, disproportionately burdens certain property owners for the benefit of others. Consequently, property owners face a range of issues, including financial strain, involuntary annexation, and potential threats to property ownership. However, the existing framework of state constitutions lack the necessary provisions to adequately address these challenges, underscoring the need for significant reform.
This Note addresses these concerns within the context of national BID standards, with a specific focus on Ohio’s BID framework. It asserts that Ohio should defend its property owners against unjust assessments and suggests integrating such protections into the State’s Constitution. Through the inclusion of a provision requiring consent for taxation and clarifying the definition of “special benefit” in the assessment procedure, Ohio’s Constitution will be better equipped to safeguard its residents from economic oppression imposed by BIDs.
OHIO'S FAILURE TO PROTECT MOTORCYCLISTS' HEADS: A LAW ENFORCEMENT PERSPECTIVE
B. Thomas
72 Cleveland. St. L. Rev. Et Cetera 47 (2023)
As a former police officer, the aftereffects of helmetless motorcycle crashes will forever haunt me. This Article will discuss the need for helmet laws for all motorcyclists.
JD AND ME: EXPLORING HYBRID REPRESENTATION OF PRO SE DEFENDANTS IN CAPITAL MURDER CASES
Andrew Wick
72 Cleveland. St. L. Rev. Et Cetera 1 (2023)
The United States Constitution grants those facing the loss of life and liberty the right to due process and a fair trial. As part of these rights, a criminal defendant has a constitutional right to represent himself. How can a court ensure criminal defendants who are facing the death penalty feel as though their desired argument and defense will be presented while still having the appearance of a fair trial? This Article will look at the key questions facing the court when a defendant facing the death penalty elects to proceed pro se and will examine how to best protect the defendant and their rights.
UNSTABLE HOMES EXACERBATED BY UNSTABLE COURTS: HOW OHIO'S SPLIT-CHILD-CUSTODY JURISDICTION HARMS OHIO'S CHILDREN AND FAMILIES
Philip Shipman
72 Cleveland. St. L. Rev. Et Cetera 16 (2023)
Raising a child is very difficult. Add to the difficulty in raising a child the specter of a child custody suit, and you have a recipe that can end in disaster.
In Ohio, child custody is not fair. It is not just. It is determined by judges, whose jurisdiction is determined by whether the child's parents were married to each other. Under this jurisdictional scheme, Ohio's children are failed. This failure stems from Ohio courts making their own rules without care to fairness and equality. Within most of Ohio's eighty-eight counties, juvenile and domestic relations courts can, and do, set separate, often disparate child visitation schedules. This means that a a child can live next door to another, and yet the minimum allotment of visitation time with a parent under a child custody order is likely wildly different. This Note will examine the history of this jurisdictional scheme, explore the negative consequences that are failing Ohio's children, and will propose a solution that will benefit children that are currently stuck going through the child custody system.
PROBLEMS IN THE COPYRIGHT INDUSTRY: MAKING THE CASE FOR A CORRECTED CASE ACT
Megan Grantham
71 Cleveland. St. L. Rev. Et Cetera 27 (2023)
In 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act, which established a small claims court system within the United States Copyright Office, called the Copyright Claims Board. This new board hears cases of copyright violations involving damages of $30,000 or less. President Donald Trump signed the bill into law on December 27, 2020, and the board officially began hearing claims in June 2022. This was meant to benefit smaller creators who do not have the means to pursue their copyright claims in costly federal court. While small or independent creators should indeed have access to a means of adjudicating their claims of copyright infringement in a way using less money, time, and resources than the costly federal litigation process, the CASE Act and corresponding Copyright Claims Board fails to accomplish that goal. This Note argues that that certain changes should be made to the current framework of the Copyright Claims Board to make it fairer for independent creators to enforce copyright protection on their work. First, this Note will examine the background of the traditional federal litigation process of copyright claims and explain why something like the CCB is necessary. Next, this Note will discuss the CCB and the points that are likely to help bring justice to smaller creators. After this, this Note will consider the problems and pitfalls of the CCB and detail the ways that it will likely hurt independent creators as it currently stands. Finally, this Note will propose changes that legislators considering amendments to the CASE Act and the CCB can incorporate to make the small claims tribunal process fairer.
O-HIGH-O: A POLICY NOTE ON OHIO'S CURRENT PUSH FOR RECREATIONAL MARIJUANA LEGISLATION AND HOW OTHER STATES HAVE CREATED SUCCESSFUL RECREATIONAL MARIJUANA LAWS
Alexander M. Stewart
71 Clev. St. L. Rev. Et Cetera 1 (2023)
Many states have gone on to pass comprehensive recreational marijuana laws that have greatly benefitted their economy, public health, and criminal justice system. Ohio currently allows for the use of marijuana for medicinal purposes, and there has been past attempts to enact legislation that would legalize the recreational use of marijuana, but the past proposals failed to gain the widespread support required to become law. This Note seeks to analyze and understand other states’ legislation in an attempt to understand what successful recreational marijuana legislation looks like. This Note concludes with a comprehensive proposal that contains all the essential elements of successful recreational marijuana laws to act as a guide for lawmakers and Ohio citizens alike for creating a successful recreational marijuana statute to ensure the greatest likelihood of garnishing the support required to become law.
INNOCENT UNTIL PROVEN ARRESTED: HOW PRETRIAL JUVENILE DETENTION FOR NONVIOLENT OFFENDERS IN OHIO INFLICTS CONSTITUTIONAL VIOLATIONS
Taryn Schoenfeld
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
Michael DiDomenico
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
Nicholas Hudnell
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
Caitlin Steiner
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).
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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.
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Does Janus vs. AFSCME Signal the Death of Mandatory Bar Associations?
Brendan Williams
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.
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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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