The Cleveland State Law Review, originally founded in 1952 as the Cleveland-Marshall Law Review, is a student-run organization whose primary purposes are to publish a high-quality journal of legal scholarship and to promote academic excellence in the law school community. The Law Review publishes four issues annually, containing the scholarly works of legal academics, judges, practitioners, and students.
Recent Publications
74.2
FROM PRESUMED INTENT TO PROGRAMMED PERFORMANCE: SMART CONTRACTS AND THE FUTURE OF CONTRACT LAW
Amir Bushansky
74 Clev. St. L. Rev. 297
Smart contracts—self-executing agreements operating on decentralized blockchain networks—challenge the fundamental assumptions underlying traditional contract law. This Article challenges the prevailing scholarly approach that seeks to reshape smart contracts to fit existing doctrinal frameworks. Instead, it argues for adapting contract law itself to better accommodate smart contracts, given their unique advantages in cyberspace. Building on two complementary premises—that contract law primarily operates as “mimicking law,” reflecting the presumed expectations and preferences of contracting parties, and that default rules function as behavioral reference points that shape party behavior—the Article develops a positive theory predicting the expectations and preferences of parties entering into smart contracts. It contends that these expectations fundamentally differ from those that shape traditional contractual engagements and that, when existing doctrines diverge from those expectations, such doctrines can no longer serve as effective legal default rules. The Article concludes by proposing a set of normative adaptation principles designed to align contract law with the expectations underlying smart contracts. Grounded in and illustrated through Israeli contract law as a case study, these principles provide a foundation for evaluating and implementing doctrinal adaptations across diverse legal systems.
VALENTINE ACT AND SHERMAN ACT: SEPARATE AND DISTINCT ANTITRUST REGIMES
Thomas J. Collin
74 Clev. St. L. Rev. 361
The Ohio Supreme Court has held that the Valentine Act was patterned after the Sherman Act and should be interpreted in light of federal court interpretations of the Sherman Act. The Court was wrong, and its error persists. With the exception of a private right of action provision and a borrowed definition, nothing in the Valentine Act was derived from the Sherman Act. The holding ignores text and legislative history and has foreclosed development of any independent jurisprudence for a statute intended by the General Assembly to address grave antitrust abuses. This Article analyzes the Court’s error, details the origins of the Valentine Act, and proposes an approach for correct application of the statute.
THE FALLACIES OF ORIGINALISM: WHY TREATING HISTORY AND TRADITION ALONE AS DISPOSITIVE IS NOT SUPERIOR TO THE TIERS OF SCRUTINY
Gage A. Johnson
74 Clev. St. L. Rev. 439
The goal of this Article is to develop the current history and tradition standard. I argue that the Bruen use of history and tradition is not a more principled or better way of interpreting the Constitution than the infamous tiers of scrutiny. This argument is supported by analyzing the way the Court has used history and tradition in reviewing restrictions on the Second Amendment and the push for it to be used under the First Amendment. I argue that Justice Thomas’s rigid application of history and tradition is essentially an ends-justifying-the-means analysis that is no different than the so called “judicial policymaking” of the Warren Court. My solution to this problem is to apply a more flexible history and tradition standard that Justice Barrett has written about in the Court’s cases. Her approach places an emphasis on original meaning but in a way that is less confusing to lower courts and more faithful to the Constitution and the history of our Nation.
AUTHENTICATION OF ART
Herbert I. Lazerow
74 Clev. St. L. Rev. 463
The authentication of items permeates our law and our markets. While it is important for many consumer goods, authentication is crucial for artworks and artifacts where the value difference between the authentic and the inauthentic is huge. The question is raised most frequently in conflicts between buyer and seller of art where it is claimed that a warranty was breached, or between the owner of artwork and an authenticator where the claim sounds in tort. It also arises in any situation where the value of the art is important, such as tax or antitrust. Authentication of artwork can be difficult because the three principal tools, science, provenance and connoisseurship, all fail to positively authenticate art. This results, in part, from their inherent limitations, from the customs of the art world, and from the working habits of artists. It is compounded by the art world’s secrecy and shifting opinion about authenticity. Over the years, the legal rules on authentication have changed, but courts have consistently found ways to avoid deciding whether an artwork is authentic. Often it is because the parties have agreed that the work is or is not authentic, but courts have also re-defined the test to avoid that decision, invoked the statute of limitations strictly, or found that authenticity was an opinion or not part of the sales bargain. Despite the fact that no owner has won a case against an authenticator, owners continue to sue, with the result that many fewer people are willing to venture an opinion on authenticity. While scholars have suggested the use of mediation or arbitration to settle authenticity disputes, it is unclear that mediation is unused or that arbitration has significant advantages over litigation. Art expert arbitration is readily available but is not widely used. The few cases where courts have ruled on authenticity have been well-crafted decisions worthy of being followed.
THE SECOND AMENDMENT, ILLEGAL ALIENS, AND THE BRUEN TEST: DEFENDING THE CONSTITUTIONALITY OF 18 U.S.C. § 922(G)(5)
Ian Duncan
74 Clev. St. L. Rev. 533
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 Amendment jurisprudence, from pre-Heller case law through Heller, Bruen, and Rahimi, and situates § 922(g)(5) within the broader statutory scheme regulating firearm possession. Part II surveys how state and federal courts have applied Bruen to a range of firearms regulations, highlighting both convergence and divergence in their approaches to historical analogy and status-based disarmament. Part III advances a civic-duty, status-sensitive account of the Second Amendment, arguing that the right to keep and bear arms has historically been tied to allegiance, legal recognition, and participation in the political community. Drawing on English, colonial, and early American regulations, as well as modern legislation, this Part contends that disarming unlawful aliens fits comfortably within the Nation’s historical tradition of restricting arms to citizens and law-abiding, lawfully present members of the community.
Ultimately, this Note concludes that § 922(g)(5) survives Bruen’s two-step inquiry: unlawful aliens fall outside the core political community whose rights the Second Amendment protects, and a robust historical tradition supports status-based limits on firearm possession grounded in allegiance and public safety.
THE TAXING AMBIGUITY: DEFINING "RETURN" IN BANKRUPTCY DISCHARGEABILITY CASES
Elizabeth Tsai
74 Clev. St. L. Rev. 563
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 interests. This Note argues that Congress should amend 11 U.S.C. § 523(a)(1)(B) to codify the Beard test and restore the effectiveness of the two-year rule, ensuring that bankruptcy law does not impose lifelong financial penalties for minor procedural missteps. Alternatively, the Supreme Court should establish a uniform standard, or the IRS should issue administrative guidance clarifying that a late-filed return remains valid for tax assessment and discharge purposes. A clear, consistent, and fair approach is necessary to resolve this issue and restore uniformity, predictability, and economic rationality to tax dischargeability in bankruptcy.
74.1
"THERE WAS SUCH AN ARRAY OF CIRCUMSTANCES POINTING TO DEFENDANT'S GUILT...": SHEPARD V. UNITED STATES AND THE DYING DECLARATION AS A LEGAL, SOCIAL, AND POLITICAL HISTORY OF PEOPLE, PLACES, TIMES... AND UTILITY
Joshua E. Kastenberg
74 Clev. St. L. Rev. 1
In 1933, the Court, in Shepard v. United States, limited the “dying declaration” exception to the prohibition against hearsay. Shepard has been cited over 500 times by courts of appeal, the decision appears in evidence casebooks, and scholars have challenged it as robbing the voice of victims. However, there has never been a legal history of the decision. The case arose from a criminal conviction that occurred in the last days of the “Roaring Twenties,” and the appeal transited through the courts in the first years of the Great Depression. The Court, in a unanimous decision authored by Justice Benjamin Cardozo was just beginning to see challenges in the district courts against President Franklin Roosevelt’s New Deal programs. Those challenges, unlike Shepard, would result in fractured opinions. Shepard’s trial focused more on dueling experts over the cause of Zenana Shepard’s death and her mental state than it did the dying declaration. Indeed, Zenana’s dying declaration came into evidence through a witness who spent a few minutes on the stand and, in comparison to the over dozen medical specialists and members of the military community, it was hardly any time at all. The validity of a legal history is in clarifying and illustrating the conditions of the trial and appeals, the participants in it, and the reason for the decision. Without the dying declaration, a retrial acquitted Shepard and one might think that the dying declaration was the difference between a conviction and an acquittal. But the conduct of counsel and the judge’s conduct in the first trial were also factors in his initial conviction. The legal history provides the background and context of the decision and, in doing so, also enables a view of American law and society, and, in particular, military society from almost a century ago.
IT TAKES A VILLAGE: WHY DEVELOPING COMMUNITY AND IMPLEMENTING COLLABORATIVE TEACHING METHODS IN THE LEGAL CLASSROOM FOSTERS TRUE INCLUSIVITY, ACTIVATES ACTIVE LEARNING, AND PROMOTES THE ATTAINMENT OF TRUE KNOWLEDGE-CREATING STUDENTS WHO ARE BETTER PREPARED FOR THE PRACTICE OF LAW
Erica L. Kravchenko
74 Clev. St. L. Rev. 89
Legal education has long relied on traditional teaching methods, such as the Socratic, case-dialogue and lecture methods, which prioritize individualism and competition over collaboration. While these methods have historically shaped legal pedagogy, they no longer adequately prepare students for the evolving demands of legal practice. This Article examines the impact of traditional teaching methods on the changing demographic of law students and offers collaborative learning as a potential solution. Specifically, this Article argues that incorporating collaborative learning and fostering a sense of community in legal education are essential for developing well-rounded, practice-ready attorneys. Through an analysis of the legal education’s historical framework, critiques from the American Bar Association, and contemporary research on learning methodologies, this Article highlights how collaborative learning enhances critical thinking, strengthens analytical reasoning, and promotes inclusivity. Finally, this Article concludes by advocating for a balanced integration of traditional and collaborative approaches, ensuring law schools fulfill their mission of preparing students not only to pass the bar examination but also to excel as competent and ethical legal professionals.
THE FEARLESS DECISION AND THE FUTURE OF RACE-CONSCIOUS CHARITIES
Chenglin Liu
74 Clev. St. L. Rev. 131
Historically, courts tended to differentiate between invidious discrimination against racial minorities and benign discrimination against whites in the context of affirmative action movements. With the social movements galvanized by the conservatives and the change of composition of the Supreme Courts and lower courts, the feasibility of race-conscious measures aimed at helping minorities is substantially reduced. The conservatives’ win in Fearless, coupled with the Trump Administration’s attacks on DEI, have produced a self-censoring effect on charitable organizations. Because of these threats, race-conscious charities will have to modify their practices to become more “inclusive” or face legal challenges from conservatives.
UNFOLLOWING CENSORSHIP: A POLICY-ORIENTED ANALYSIS OF GOVERNMENT PRESSURE ON SOCIAL MEDIA CONTENT MANAGEMENT
William C. Morgan
74 Clev. St. L. Rev. 175
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 government intervention on social media companies’ content moderation policies further infringes upon the platform user’s free speech right to post in adherence to the platform’s guidelines free from government control. To address this problem, this paper adopts a policy-oriented approach where the problem is narrowly identified, claims and claimants are distinguished, past trends in legal decisions are explored, future trends of decisions are made to predict future outcomes, and solutions are drafted from an objective observer perspective. The past trends reveal direct government influence, at both the state and federal level, over social media platforms’ content moderation policies as explored in various Supreme Court cases. This analysis also considers conditioning factors such as the influential power of social media and its immunity from liability regarding user generated content on their respective platforms. After a thorough analysis of the past, this paper looks to the future. In predicting a possible outcome, social media companies will inevitably align their policies to government directives to secure their own interests and retain their immunity. In avoiding the forecasted path based on the analysis of past legal decisions, this paper proposes a legislative framework alternative meant to guide legislation that addresses government transparency in communications made to social media companies, as well as encouraging algorithmic transparency regarding content moderation practices to educate social media users and, overall, to prevent censorship.
A RENDEZVOUS WITH DESTINY: THE PRESIDENT'S FTC REMOVALS AND THE RULE OF LAW
George Sakkopoulos
74 Clev. St. L. Rev. 217
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 agencies that do not wield substantial executive power” or the Perkins/Morrison exception for certain inferior officers applies. The latter is clearly inapposite here. But so is Humphrey’s. The modern FTC has nothing to do with the Humphrey’s quartet. It also wields considerable executive power under the tripartite framework outlined in Seila owing to Congress’s own choice since Humphrey’s to grant the FTC such powers. And today’s FTC has considerable authority in the international-relations context generally and in cross-border law enforcement in particular. Because today’s FTC exercises significant executive power, the FTC Act removal limitation is unconstitutional, and the President’s action was lawful. From it also comes a benefit to the rule of law. The Supreme Court’s treatment of Humphrey’s in recent years has both left in place, to quote Justice Thomas, a “direct threat to our constitutional structure” and caused great uncertainty in the lower courts, which, because the Court has expressly refused to overturn Humphrey’s, have consistently upheld the constitutionality of statutory removal limitations as to “multimember expert agencies” even if they “wield substantial executive power.” The President followed the Constitution, in light of, and not in spite of, precedent, and the Supreme Court now has the perfect vehicle—the same facts as Humphrey’s, albeit with a vastly different, fundamentally executive FTC—to end the uncertainty it has created and repudiate what it has left of that major threat to the Constitution.
"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
74 Clev. St. L. Rev. 271
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 the power imbalance inherent in the employer-employee relationship. Courts accordingly interpreted the FLSA liberally under the narrow construction canon to ensure that as many employees as possible are protected under the Act. Imposing the clear and convincing evidence standard would serve to continue courts' practice of construing the FLSA in favor of the employee. Especially in light of the Supreme Court’s decision in Encino Motorcars v. Navarro where it rejected the narrow construction canon, the clear and convincing evidence standard would help to preserve the FLSA’s express purpose. The Supreme Court, however, continues in its deregulatory trend by ruling that preponderance of the evidence is the correct standard.