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
"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.