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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

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.

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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?

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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.

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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.

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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.

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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.

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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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