Cleveland State University EngagedScholarship@CSU

1990s The Gavel

11-1991

1991 Vol. 40 No. 2

Cleveland-Marshall College of Law

Follow this and additional works at: https://engagedscholarship.csuohio.edu/lawpublications_gavel1990s How does access to this work benefit ou?y Let us know!

Recommended Citation Cleveland-Marshall College of Law, "1991 Vol. 40 No. 2" (1991). 1990s. 27. https://engagedscholarship.csuohio.edu/lawpublications_gavel1990s/27

This Book is brought to you for free and open access by the The Gavel at EngagedScholarship@CSU. It has been accepted for inclusion in 1990s by an authorized administrator of EngagedScholarship@CSU. For more information, please contact [email protected]. THE qAVEl

Volume 40, Issue 2 Oeveland-Marshall College of Law Nov./Dec., 1991 The GAVEL

The Editor's Note GAVEL Cleveland-Marshall College of Law The Gavel is always seeking interested students to participate in the writing, Cleveland State University typing, or photographic aspects of producing the newsmagazine. All you need to Cleveland, Ohio 44115 do is stop by the office, LB 23, or call 687-4533 for more information. (216) 687-4533 We need reporters, photographers, editorialists, cartoonists, and those who are proficient with a word processor. Articles Editor Students become staff members after having had two articles or equivalent Mark J. Bartolotta contributions printed in the newsmagazine. Staff members qualify to participate in_ editorship elections at the end of the year. Three editors are elected, each receiving Layout EditO£ a full tuition waiver Joseph G. Paulozzi So if you are motivated by a need to be creative, or a need to be fulfilled financially, The Gavel can be an excellent vehicle for meeting those needs. After Business Editor all, you can't spend every waking moment studying, can you? Andrea F. Rocco

Staff Writers Kevin Foley William LaMarca Karen Edwards

Staff Photographer Joe Clicko

Faculty Advisor Thomas D. Buckley

Any interested students, including first-year students, are encouraged to become involved. The Gavel office is located in room 23, near classroom 12. Stop by, someone is usually in the office - if not, put cover: a note in the envelope on the door. The cover of The Gavel was extracted from The New Yorker magazine. Permission to reprint any part of The Gavel must be obtained in writing from The Gavel. Copyright 1991

Infra. Letters ...... 3 Walker Todd speach ...... 7 Living Will ...... 4 Accidents Happen; ABA ...... 8 Justice Mission ...... 5 Thomas/Hill; etc...... 9 Abortion Issue ...... 6 Boooster's Bash ...... 11

2 The GAVEL

To the Editors of The Gavel: their desire to push us all from the path. They have become so blatant in their attack that when Letters: William LaMarca, you have a friend and seated a full ten feet away from their lair you can compatriot. Oh how I waited and wanted to almost smell the filth. Just close your eyes and come to idyllic Cleveland-Marshall, where the concentrate. Can't you smell it too? I'm almost To the Editors of The Gavel: floors were paved with gold and lollipops grew positive I can. out of every desk and table, where the instructors As such, I am forced to be ostracized from the As a second year law student at Cleveland­ were less like professors and more like long-lost very place I long for. William, I too cannot Marshall, I consider myself fortunate to be in grade school friends, dancing and laughing into afford the luxurious, fine lunch restaurants which law school. I know that every year application our carefree, workfreestudentlives. I too had to adorn the campus area. My only choice is to rates are up, and it gets more and more difficult scrimp and save, barely scraping by at subsistence prepare my own meal and carry it along with me to get accepted into the program. levels just to afford the application fee. But after to school. Sure, in the summer I didn't mind I've attended several universities around the a long, anxious wait I got my letter - I would be breathing the fresh outdoors of Downtown country, and they all are pretty much the same going to a new exciting place where rainbows Cleveland. Today, however, as I was eating my when it comes to administration and policy. never end. Most of all, I looked forward to the lard and bread sandwich in the rain, I finally However, I must admit that I've never had as air. That Cleveland-Marshall air brimming broke down. I cried at how I had been mislead, difficult a time parking my car as I have here at with oxygen and sweet with the smell of lilacs in wept at the cruel injustice of it all, and bawled at Cleveland State. I kno.v that the parking situation the spring. Oh how the glorious purity of a how the glorious and true non-smoking policy is not the fault of the law school and that it really closed ventilation, forced air system teased my had been trampled underfoot. Constructively is a problem for CSU. But I can't understand brain as I anticipated my arrival. I spent many denied a legal education, I saw no way out. how a student can be accepted into a graduate a night sleepless with excitement and dreaming There was no solution but to walk into the program, be given the privilege to buy a parking of the future. Looking at pictures of the downto.vn \\GOds, never to return to the dreamland of fresh permit, and then never be able to use that permit Cleveland campus and browsing through the air from which I had been outcast. to park. The way I understand CSU's argument brochures, everything looked so clean, so pure, As chance would have it, at that very moment is that "there are ample parking spots for so right! And the non-smoking policy. I must a copy of the September/October 1991 GAVEL everyone''. have read it a hundred times. Here, there was blew into my lap. It was a little soggy, but I Well if this is true, why is it so difficult to park justice. Here, in the health-filled setting of could still make out the words on page three every morning? I guess ifl want to park, I have Downtown Cleveland, there was oxygen filled opened in front of me. As William LaMarca­ to go to East 24th Street. Those students from bliss. Those smokers who had tormented my Concerned Law Student wrote on, inspiration Cleveland State that have classes near East 24th past would have no place here. They would be clawed its way into my heart and pushed the can park in the lot near the law school. forced into servient roles of carrying my books, smokey depression from my soul. Courage (This makes a la: of sense to me). After observing offering lunch money and course outlines just to replaced self-pity. I knew from that moment the situation, a logical solution would be to sit amongst the chosen. The rights of smokers that there were others. Others who believed as designate a separate lot for the law school. This would fall, crushed beneath the whims of the I do. Others who longed for the promised land would keep the law students near the law school, clean. Here, I would belong. of pure and pristine forced-air ventilation. and would free up those displaced parking spots But woe to those who believed. Brothers in There are others, and we have found a leader. on East 24th for the undergraduate students. battle, we are under siege. We are being bullied Someone to honor, trust, respect, and admire. This would also alleviate the danger involved and bantered by demonic, smoke belching dragons Read his wisdom in THE GAVEL. Praise his for women law students who have to walk to who are dead set on slowly killing us with their intelligent re~ning. Revere his trorrugh research their cars late at night. (Generally, law students baited, foul-smelling poison. They have already and duty to the cause. Now is the time to stand stay on campus later). !think this is a good idea. fully taken over an entire corner of the lunch and be counted. Lead us, William LaMarca­ I'd like whoever is in charge of parking to room lobby. They have, of course, chosen the Concerned Law Student. We await your sign. consider it. darkest, most cramped corner of the building Your Brother in Arms and Concerned Law If anyone out there has any comments, from which to plot their evil schemes. The Student, directions, or suggestions concerning this matter, impure shy from the light and hover together in Stephen B. Doucette, non-smoker I would be happy to hear them. I think it is important that if the law school is to operate To the Editors of The Gavel: There are skills to be developed which may or properly, there be ample parking for the faculty may not be helpful in bar examination taking. and students. Something should be done. In a rather good article in the last issue of There are specialized areas oflaw which are not THE GAVEL, Mr. String points out the and probably should not be bar examination William LaMarca importance to most of our students of preparing tested. With Ohio in mind, one thinks of advanced for the bar examination while in law school. and/or specialized areas of taxation, environmental P.S. In Re: Smoking Policy at C-M However, while there surely is general agreement law, law and medicine, labor law, and international I heard it through the grapevine that smoking that preµiration for bar examinations is important law as examples. will be completely abolished in the law school and that students should be aware of their nature Of course we should not neglect preparation next semester. But remember, this is only and contents well before graduation, also, surely for bar examinations, but we must not let the bar hearsay and is inadmissible in court. Any few accept the idea that bar examinations and examinations become an excuse for neglecting suggestions are welcome. preparation for them should be the only concern nearly everything else. * * * * * * * of law faculty and students. There are other concerns. Dean Carroll Sierk 3 The GAVEL

Ohio's Living Will Statute

physician who has examined the declarant or surroundings, and unable to experience pain or By Todd Bartimole other patient, is characterized by both of the suffering (because of lack of cortical functioning). following: A person could live many, many years in this Ohio recently addressed a person's right to 1) the declarant or other patient is irreversibly state, if supplied with nutrition, hydration, and refuse life sustaining treatment by adopting unaware of himself [or herself] and his [or her] basic protection against infection and skin Amended Sub>titute Senate Bill 1, which creates environment; and breakdown. Ifa person in this state has executed statutory guidelines for writing a living will, or 2) there is a total loss of cerebral cortical a living will under the Ohio law, administration "declaration," and also creates a framework in functioning, resulting in the declarant or other of food and hydration would not be considered which life sustaining treatment maybe removed patient having no capacity to experience pain or comfort care in this case because the provision when a patient has not made a declaration. The suffering." O.R.C. sect. 2133.0l(U) of such would only serve to "postpone death." measure also made changes in existing law 3) "Terminal condition," meaning "an Statutory Requirements for a Living Will governing the durable power of attorney for irreversible, incurable, and untreatable condition Any competent person over 18 can execute health care. caused by disease, illness, or injury from which, a declaration. It must either be witnessed by two Creators of Amended Substitute Senate Bill to a reasonable degree of medical certainty as witnesses, or acknowledged by a notary public. 1 had to take into account the concerns and detennined in accordance with reasonable medical A witness cannot be: 1) a relative by marriage, desires of both right to life and right to die standards by a declarant's or other patient's blood, or adoption; or 2) an administratorofthe groups. They had to balance patient r.ights of attending physician and one other physician nursing home in which the person resides; or 3) privacy, the right to give and withhold informed who has examined the declarant or other patient, the attending physician. O.R.C. sect. consent for treatment, and the state's interest in both of the following apply: 2133.02(B)(l ). preserving life. The compromises have resulted 1) there can be no recovery. The living will can provide for the with­ in an extremely complex law, with possibly 2) death is likely to occur within a relatively drawal or continuation of life sustaining treatment unconstitutional provisions, which will short period of time if life sustaining treatment when the declarant is in either a permanent undoubtedly create problems for health care is not administered." 0 .R. C. sect. 2133.01 (AA) unconscious state, or terminal condition, or professionals, patients, and their families ~ both. If the declarant wishes food and hydration 4) "Comfort care," is defined as meaning to be withheld or withdrawn when in a permanent The Living Will, or Declaration "any of the following: unconcious state, a specially initialled paragraph, Up until now, there has been no living will 1) nutrition when administered to diminish pain written in capital letters must also be excecuted. statute in Ohio. A living will, or declaration, or discomfort ofa declarant orother patient, not No elaborate conditions are required for removal governs the continuation, withholding, or to postpone his [or her] death; or withdraw) of artificially administered food withdrawal oflife sustaining treatment. O.R.C. 2) hydration when administered to diminish and hydration when a declarant is in a terminal sect. 2133.02(A)(l). It also contains provisions pain or discomtbrt of a declarant or other patient, condition. for the removal or withholding of artificially not to postpone his [or her] death; If the patient is pregnant, life sustaining administered food and hydration. A person may 3) Any other medical or nursing procedure, treatment may not be withheld or removed decide under what circumstances they would treatment, intervention, or other measure that is unless the fetus would not be born alive. like treatment withheld, or they may decide they taken to diminish pain or discomfort ofa declarant 2133.06(B). never want treatment withheld. In most cases, or other patient, not to postpone his [or her] The law also provides that a declarant may people executing living wills will be doing so to death." O.R.C. sect. 2133.0l(C). revoke a living will at any time, in any manner, limit treatment. The definitions are important in understanding verbal or written. O.R.C. sect. 2133.04(A). Many law students have heard that the most the law because they determine what treatments The attending physician who is furnished critical part of any statute is its definitions, and and procedures can be removed and under what with a copy of a living will must make it part of there is no exception here. Fourterms, and their circumstances. A doctor may not remove comfort the patient's medical record. O.R.C. sect. respective definitions, which are of critical care to a patient. O.R.C. sect. 2133.12(£). 2133.02(C). If the attending physician and importance in the new law are: However, that does not mean life sustaining another physician determine that a patient is in 1) "Life sustaining treatment," which the treatment may never be removed. Stated in a terminal condition, or permanent unconscious law defines as "any medical procedure, treatment, simple terms, life sustaining treatment may be state (for a permanent unconscious state the intervention, or other measure that, when removed only \Wen it does not constitute comfort second physician must be a specialist), and there administered to a qualified patient or other care, and a procedure or treatment is not comfort is no reasonable possibility that the declarant patient, will serve principally to prolong the care when its principle purpose is to postpone will regain consciousness, then the living will process of dying." O.R.C. sect. 2133.0l(Q) the death of a per9Jl'l in a permanently unconscious becomes operative. sect. 2133.03(A)(l ),(2). The 2) "Permanently unconscious state," which state, or in a terminal condition. physician then has the duty to contact people is defined as "a state of permanent For instance, a patient in a persistent vegetative designated by law or by the living will, and give unconsciousness in a declarant or other patient state has a functioning brain stem, but no cortical them an opportunity to object to the doctor's that, toa reasonable degree of medical certainty functioning. This condition allows the patient's finding, or the decision to withhold life sustaining as determined in accordance with reasonable heart and lungs to function normally (controlled treatment. sect. 2133.05 (A)(2)(a). medical standards by the declarant's or other by the brain stem), but leaves the patient totally The declarant may include one or more persms patient's attending physician and one other unaware of him or herself and his or her See Living Will I p.10 4 The GAVEL

Justice Mission Hits C-M

More than sixty law scholars from across the firms. Instead of enthusiasm in the classroom, country visited the Cleveland-Marshall College we stalled professors and waited for the dreaded of Law at Cleveland State University from "Mr. " or "Ms. ". Law Review was Wednesday, October 30 through Friday, not the platform for inspired students as much as November 1, for a conference on "The Justice an absolute for getting a job in a depressed Mission of American Law Schools." Among market. All of this was further irritated on a those who attended was Talbot "Sandy" return flight from a recent meeting when I spoke D'Alemberte, president of the American Bar with a medical student who informed me that Association. most medical schools are now pass/fail. They The purpose of the 5 lst Cleveland-Marshall found the competition counter-productive. Fund Event was to assert that law schools and Professor David Barnhizer and the law school law faculty are obligated to understand the administration must be praised and applauded nature of social justice and to seek to advance for the Justice Mission held at the end of October conditions of justice, said Professor David at this school. We should be proud. For three Barnhizer, conference coordinator. days, scores of professors and scholars converged The event was dedicated to the memory of in our halls to listen, examine, and debate justice Robert B. McKay, the eighth Oeveland-Marshall issues from many different angles and Fund Visiting Scholar. perspectives. The speakers were not paid. I In addition to the CSU College of Law, co­ cannot believe it was mere notoriety that brought sponsors included American University, them here. I want to believe that they hungered Washington College of Law; CUNY Law School for more than just the law. at Queens College; New York University School This Justice Mission must continue. Professors of Law; Thurgood Marshall School of Law, on the teaching treadmill need to be re-inspired. Texas Southern University; and Tulane University Any reform in law school curriculum, teaching School of Law. methodology, or bar qualifications will be futile Robert B. McKay was former dean of New unless the "zeal" of Canon 7, principles of Yark University Law School. Barnhizer called justice, and humanitarian empathy replace the McKay "a man of extraordinary decency, integrity trade school mentality. This, then, must scoop and compassion, who in his teaching, writing up the students and compel men and women and public service activities, sought to improve who want to be more than rich to champion a the quality of social justice and provided a cause. compelling role model for students, law faculty Those who accept the "replacement" and and practicing lawyers." win the competition often find themselves victims of substance abuse, failed relationships, and an empty life beholden to the mega-firm or corporation. The bright-eyed first year students comment are not always naive. In my opinion, the right of passage through law school should resemble It was another time during my first few weeks more that of the hero-apprentice than the defiant­ oflaw school that I almost quit. The professor inmate. What a challenge to the noble profession was trying to make it clear to the class that we of law if people flunked out not because their were in "law" school, not "justice" school, grade point average was low, but because they and abridging any altruism might be in our best did not have the character to fight. There is no interest. We were already in the maze of adequate "replacement". voluminous, obscure, and often inconsistent A Justice Mission nurtures missionaries. This holdings on whatever topic it happened to be. style of education must infiltrate. The next time While we may have suspended judgement on the Justice Mission is held here, who knows, how this would all add up, the passage of time, maybe a first year student could give the opening exams, and new courses left us disappointed, address and remind us of what conviction or maybe angry and held at bay. hope drew us to law. What I saw as a survival technique, or what I'd like to call "replacement", was competition: rank, grade point average, interviews with big Gary Gresko

5 The GAVEL

The Right to Choose

decision should be left to the pregnant woman. the pro-life side supports. Randall Terry of By Andrea F. Rocco Mr. Lally and Ohio Right To Life seem to know Operation Rescue, which targets abortion clinics what is the best choice for any pregnant woman has said, "I don't think Christians should use If I hadn't forgotten the eggs at the grocery regardless of her circumstances which is no birth control. You consummate your marriage store I might never have taken the opportunity to choice at all. It is easier to understand why Mr. as often as you like and if you have babies, you attend a "Lawyers for Life" meeting. Stopping Lally and members of Lawyers for Life feel have babies." One of the activities Lawyers for at a convenient store I parked the car. As I got comfortable making such comments when one Life is involved with is representing people who out, I noticed a group of people gatheringat the considers that they believe that upon conception are involved in Operation Rescue. I am not other entrance of the lot. I am not sure if it was a fetus is a human being, thus deserving the suggesting that to be pro-life or a member of the "You can still save your soul", "Don't basic human rights we all enjoy. To support this Lawyers for Life necessarily means that one murder your child" and "Have you slept with belief comments were made aligning the agrees with Mr. Terry's comment. I am only the devil" comments that were hurled at me or "unborn" with the plight of the Jewish population stating that any activity on behalf of family the panicked looks of some high school aged in Nazi Germany and the Afro-Americans in planning and birth control was absent from the young women in the car next to me that made me pre-Civil War times. The differences are, at the group's meeting agenda the day I attended. realize I had stopped at the convenient store least, two-fold. First, oppressed groups such as Representatives at the Lawyers for Life meeting which happened to be located near the Planned the Jews and the slaves were living, breathing, never referred to their opposition as pro-choice Parenthood Clinic. I ignored this group of and already born. The oppression they but pro-abortion. I suggest that the issues involved strangers who felt it was their business to tell me undeservingly endured can not be compared to with a woman's right to control her reproductive about my soul, bought my eggs, and left as the an aborted fetus tecause we have yet to determine txxly are not as clear cut as these pro-life supporters young girls were fortunately entering the clinic. when life begins. The second difference, the suggest. There are many people who are not I remembered seeing similar gatherings at this belief that life begins at conception, is at most necessarily for abortion but for choice. location on other Saturday mornings, but I just one compelled by religious teachings, and at the kept driving, shaking my head and wondering least, a personal opinion. Many people can how a group of people could be so sure that their distinguish between aborting a fetus in the third beliefs are right and that those beliefs must be trimester and a fetus two weeks into its imposed on the rest of us. development. This time the group was not so easily forgotten. Another interesting comment was by an attorney That's why \\hen I received, as did each Oeveland­ who was reporting on legal issues and adoption. Marshall student, a notice inviting interested One of the few speakers to make reference to people to a "Lawyers for Life" meeting I didn't God, he insisted that adoption is the alternative immediately pitch it. I attended the meeting to abortion and that there is something wrong because I had never been in contact with a pro­ when two million people are waiting to adopt life group that was not radical. I thought this children, yet 15 million abortions are performed group might be a bit more subdued I went to the a year. People die every day with perfectly meeting and was pleased to discover that the functioning organs, yet we do not allow laws to group was very much unlike the gathering in the force the removal of tha;e organs simply because parking lot, polite, professional, and absent of there are people awaiting organ transplants. grotesque posters and bible passage spewing Overall, my thoughts on attending themeeting want to be prqJhets. Ho.ve\er, the same underlying was that this group, like many pro-life premises I feel are evident with other pro-life organizations, tends to have a paternalistic--we organizations exist. know what is better for you than you do-­ The most prevalent and most troubling premises attitude. The moments that speakers equated are the general pro-life opinions that a woman is their actions with thaie taken by Abraham Lincdn not capable of making the decision to terminate and Martin Luther King quite simply angered her pregnancy alone, that she needs to be pra:ected me. and that upon having an al:mtion she is wounded. Pro-life organizations constantly preach on I found it insulting to sit and listen to several protecting the unborn. Although there tends to speakers--mostly men--explaining that legal be involvement in pre-natal care and adoption efforts are necessary to save children and protect services there is never any discussion on family women. planning services or birth control. It seems that I agree with Mr. Mark S. Lally, the Legislative their efforts and those of pro-choice supporters Vice-µ-esident of the Ohio Right To Life Society, would be better spent on attacking the main Inc., in that abortion is not always good for µ-oblem of unintended pregnancies so that abortion women. Pro-choice supporters are not attempting would be less necessary. This can only be done to force women to abort unwanted pregnancies. by sex education and availability of contraceptives. Rather, they believe that this very personal It seems obvious that this is not an alternative 6 The GAVEL

Walker Todd Speaks on Banking and S & L Crisis

large to fail" and thus deserve extensive Federal Midwest taxpayer is now liable for more in S & By Karen Edwards Reserve loans. L debt than he or she ever had at risk, a scenario In the Sept. 16 front-page article of The he considers absurd. "When fall the banks of England, England Nation, Todd called the S & L crisis "the What's the alternative? falls. " - from the movie "Mary Poppins." greatest scam since the South Sea Bubble of the In the absence of federally-chartered national A bandaid approach won't fix the ailing U.S. early 18th century." Then, wealthy investors in banks, he said, the money supply could be banking industry. It needs major surgery on both South Sea obligations were rescued by conversion handled as it was in the early days of this ideology and implementation. But it probably of half of their claims into claims on the Exchequer, country-by the Treasury Department with some will get the bandaid because politicians and the similar to the present switch of claims on dead help from private sector organizations such as public fear surgery could bring down the banking thrift institutions and banks into F.D.l.C. claims the old New York Clearinghouse. system. And the country with it. which have partial backing by the full faith and Without Federal Reserve bailouts, Todd Sort of like the what the Banks children credit of the government. predicted, the local depositor and businessman learned in the well-known children's tale. Todd is also worried about a trend by the Bush would scrutinize his bankers far more closely. That's the message of banking economist administration and the Treasury Department to And the bankers, fearful of "lynch-like mobs," Walker H. Todd, adjunct professor at Cleveland­ deregulate banks, especially the push by the would behave more prudently. Marshall Law School who is currently writing a latter to repeal the Glass-Steagall Act of 1933 The Hamilton-Jefferson dichotomy is book proposing (not predicting) the demise of (keeping commercial banks out of securities philosophical as well as economic, he concluded our country's central banking system and and insurance pra;pecting) and the Bank Holding "It's a matter of whether our money system especially, of the Federal Deposit Insurance Act of 1956 (which prevents ownership or control should be set by the consensus of society or by Corporation (F.D.l.C.). of banks by other private industries). a small oligarchy of the rich and powerful." Both, he said, have worn out their purpose But Congress also takes the blame, he said, Besides teaching "Law, History and and their welcome. pointing to the recent bending of a House Economics" at the law school, he is currently on The S & L fiasco could and should be "the subcommittee on limiting F.D.l.C. insurance to leave from his position as assistant legal counsel load that breaks the camel's back" and fosters pressures of the bank lobbies. and economic advisor for the Cleveland Federal not only a banking revolution but also a revives The only politician he praised was an unlikely Reserve to write the book, for which he received a Constitutional debate that dates back to the ally--Rep. Joseph P. Kennedy III (D-Mass.)-­ a grant from the Gulliver Foundation, San days of the founding fathers. for refusing to forward the bill to future generatbns Francisco. For the 40 or so law students that listened to and for his temporary solution of giving bankers Todd's lecture was sponsored by the newly­ his October 10 lecture, it was a dramatic history only $20 billion of the $70 billion F.D.l.C. formed campus chapter of the Washington­ lesson. Todd, using true law-professor Socratic chairman William Seidman requested. based Federalist Society, a national political style, began by writing across the blackboard, If the S & L fiasco headlines are making the organization which often supports conservative "Alexander Hamilton was right," and then average taxpayer "mad as hell, not gonna take viewpoints. But the local group will concentrate refuting it. it anymore," it's justified, Todd said. on bringing speakers to campusofwidelyvaried Alexander Hamilton first proposed central, For Nobody knows the price tag. Although viewpoints, according to this year's president, governmentally-chartered banks in the 1790s the $70 billion from the Treasury and Federal Kevin Foley. much to the chagrin of Thomas Jefferson, who Reserve banks has been used as a rough estimate, • • • pointed out that the Constitution never expressly Todd thinks the true allowed for federally-chartered central banks. figure runs clo~r to $230 Boosted by the New York financial community, billion. He bases this on Yes, we Know Yoo've Todd said, the Hamilton viewpoint prevailed, the red ink of the balance ~een HeRe 3'4Hile ~ but it wasn't formalized until the National Bank sheetsofthe 1601argest ano no, we \~- "" Act of 1863. banks while writing oorit RernernBeR 1. Todd considers himself more of a Jeffersonian down the bad leveraged WHICR€ YOUR but said that the system as it exists today has buyout and Third World Home is. mutated into something far beyond what even loans. Hamilton foresaw: It has become a governmetal With the median blank check to cover bankers' roulette and a F.D.l.C.-insured acca.mt guarantor for the nest eggs of a small rich falling between $3,000 faction. on the East Coast and in It didn't start out this way. The central bank California and $1,500 was to instill stability and F.D.l.C. insurance to in the Midwest, South, facilitate payouts from what was left of failed and West, the bailout Depression banks, Todd said. ca;ts for the average tax But two fallacies developed--the idea of return will be about socializing private bankers' risk-taking and the $2,000, Todd said. In prevailing doctrine that certain banks are "too other words, the 7 The GAVEL

Accidents Happen

- "I collided with a stationary truck coming the front, I struck the pedestrian." other way." By Mark J. Bartolotta - "My car was legally parked as it backed into - "A truck backed through my windshield into the other vehicle." In my former life, when I actually had a life my wife's face." to speak of, (an obvious reference to those - "An invisible car came out of nowhere, struck carefree pre-law school years), I did some hard -"A pedestrian hit me and went under my car." my vehicle, and vanished." time working for a couple of major insurance companies. Every now and then, when all of the -"The guy was all over the road. I had to swerve - "I told the police that I was not injured, but on glamour and excitement of the job just got to be a number of times before I hit him." removing my hat, I found that I had a fractured too overbearing, I'd take a look at a paper that skull." had been circulated through the office. It always - "I pulled away from the side of the road, made me laugh. Maybe it can help to take your glanced at my mother-in-law, and headed over - "I was sure the old fellow would never make mind off of your studies for a minute or two. the embankment." it to the other side of the road when I struck (Yes, a major assumption has been made here). him." You might be asking yourself what this has to do - "In my attempt to kill a fly, I drove into a with law school. Think of torts. Think of telephone pole." - "The pedestrian had no idea what direction to negligence. Think of whether or not you have turn, so I ran over him." anything better to do. -"I had been shopping for plants all day and was onmywayhome. As I reachedanintersection, -"I saw a slow-moving, sad-faced old gentleman "The following are actual statements found on a hedge sprang up, obscuring my vision and I as he bounced off the hood of my car." insurance forms where car drivers attempted to did not see the other car." summarize the details of an accident in the -"The indirect cause of the accident was a little fewest possible words. These instances of faulty - "I had been driving for 40 years when I fell guy in a small car with a big mouth." writing serve to confirm that even incompetent asleep at the wheel and had an accident." writing may be highly entertaining." - "I was thrown from my car as it hit the road. - "I was on my way to the doctor with rear end I was later found ina ditch by some stray cows." - "Coming home I drove into the wrong house trouble when my universal joint gave way, and collided with a tree I don't have." causing me to have an accident." - "The telephone pole was approaching. I was attempting to swerve out of its way when it - "The other car collided with mine without - "As I approached the intersection, a sign struck my front end." giving warning of its intentions." suddenly appeared in a place where no stop sign had ever appeared before. I was unable to So the next time you try to swat a fly inside - "I thought my window was down, but I found stop in time to avoid the accident." yourcaror a pedestrian outsideyourcar, make out it was up when I put my head through it." sure your statement tells it like it is. - "To avoid hitting the bumper of the car in

American Bar Association

The American Bar Association is the largest professional organization The ABA offers many benefits to law students, including: for practicing attorneys. The Association is made up of over 385,000 -A one year subscription to the Student Lawyer and ABAJournal; attorneys, which constitutes nearly half of all lawyers. The ABA is - Opportunities to participate in ABA/LSD programs and activities: divided into five sections: Senior Lawyers Division, Government and Annual meetings, competitions, Volunteer Income Tax Assistance Public Sector Lawyers Division, Judicial Administration Division, Young (VITA) program, etc. Lawyers Division, and the Law Student Division. - Economic benefits: Health insurance, life insurance, Hertz rentals, More than 36,000 law students belong to the ABA Law Student Preliminary multistate bar review course, MasterCard Program, MCI Division. Any law student attending an ABA accredited law school is discounts, and preferred hotel rates. eligible to become a member of this division by simply paying an annual The Law Student Division and the Young Lawyers Division are membership fee of$15. Membership in the Law Student Division informs sponsoring the 1991-92 Negotiation Competition, Client Counseling students about the substantive law in general as well as specialized areas. Competition, and the National Appellate Advocacy Competition. The It also offers economic benefits, provides opportunities for students to topics for these competitions include Real Property and Criminal Law. A develop leadership skills, and creates great networking with practicing maximum of two teams per school may enter. For more information, attorneys. contact Michelle Joseph or leave a message at the SBA office.

8 The GAVEL

Writing Competitions offer Prizes party at Forte's!

To all of you who have completed your first why not kill two birds with one [pen]. Your (Now that we have your attention) Professor year of law school (that's approximately 700 of writings are just as good as -- and often better Forte will be on leave from January to July 1992. you), I strongly urge you to enter the numerous than -- any written documents submitted by His home in Lakewood will be available for rent law student writing competitions that are sponsored students from other law schools. Trust me. to responsible law students during that time. by various sections of the American Bar Information and details on the writing Interested students should contact him at ext. Association, select journals and publications, competitions may be obtained from me, Melody 2342. (uh, just kidding about the party) and different legal or law related organizations. Stewart. I, along with the assistance of the These competitions offer cash prizes, (first prize faculty, the legal writing department, the student is often around $5,000.00), national recognition, bulletin board and' the student organizations, and publication possibilities. It is also good will keep you informed and aware of these resume value to have that you are a winner or competitions. Stop by the office of student recipient of one or more of these awards. affairs or the Gavel office for the latest list of Many of these competitions have few en­ writing competitions. There is nothing to Jose, trants thereby increasing the possibility of winning and plenty to gain. an award. All you need to do is enter. You have to satisfy an upper level writing requirement, Asst. Dean Melody Stewart

Thomas/Hill.Hearings 10 Marshall Scholars Elected

day they might become a The Street Law Program here government; criminal law; civil By Michael J. Spisak Congressman or Congresswoman. at Cleveland-Marshall is offering a litigation; and special exposure to Any unlucky little boy or girl who new program to area high school tort law, contract law, and the laws On Saturday, October 12, I woke happened to turn on the T.V. set teachers 'Yho wish to be proficient governing race and sex up early to watch the Clarence. that Saturday morning had their in law-related education. discrimination. The teachers will Thomas crnfirmation hearings. The delusions about the "noble" U.S. Ten outstanding high school also be instructed in using the law interrogations of Judge Thomas and Government completely obliterated teachers have been selected to library and computer-assisted Professor Anita Hill were quite The Senate's complete Jack of participate in the Marshall Plan research tools. · extensive and were often filled with . protocol and the media's insistence program. The Marshall Scholars Scholars will be paired with accusations and graphic descriptions on making the confirmation into a will visit C-M to increase their working attorneys to attend trials, of various types of immoral behavior. three ring circus have undoubtedly proficiency by learning legal research hearing5, depositions, and other legal The interrogations didn't seem to discouraged at least a few unlucky skills, building lesson plans, and proceedings. Each teacher will also bother me that much because I children from thinking about running creating law-related demonstration have a peer mentor, a third-year majored in Political Science in for political office. Not only did projects for their school districts. law student who will visit the college. (a.k.a. cynicism). I had our country's leaders tear up Justice Each scholar receives a $1500 scholar's high school class and assist built up a tolerance for government Thomas and Professor Hill, they stipend. The program is directed in teaching law to the students. muckraking and irresprnsible media tore up each other as well as the by Assistant Dean Elisabeth The Marshall Plan is open tO' coverage, or at least I thought that already battered reputation of the Dreyfuss. It is funded by a grant public and private school teachers I had. U.S. Government. What lesson is from the U.S. Department of with strong writing skills and a Then I realized exactly what day that kind of behavior teaching our Education. proven commitment to education. and time it really was. (law school children? (aside from a lesson Marshall Scholars will have Following are the names and has a way of distorting time and containing a few colorful new words direct contact with attorneys, judges, schools of the 1991-92 Marshall reality). It was Saturday morning, for the kiddies' vocabulary). law students, law professors, and Scholars: Allan Abel, Sou th High that glorious time of the week when Many scholars say that the media community leaders. According to School; John Bowen, Lakewood hundreds of thousands of children is becoming another branch ofour Sonia Winner, Street Law staff High School; Joanne DeMarco, across the country wakeup early to country's government. If that's attorney and program coordinator, Collinwood High School; Lou watch shows like Bugs Bunny and true then I shudder to think of the this contact will not only make Harrison, Warrensville High School; Teenage Mutant Ninja Turtles. kind of fungi that will grow from participants better teachers, it will Susan Kargin, Shaker Heights High However, on that particular Saturday the rotting wood on the symbolic also make law professionals and School; Chuck Robertson, Bay they were treated to a new kind of tree of American justice. If our community leaders more sensitive Village High School; Waymond cartoon; the United States Senate. government expects to gain the to the needs of education. Scott, Law & Public Se!Vice Magnet In their schools the children are respect of its citizens, then it must Eleven training sessions will School; Sharon Thomµ;on, Erieview taught to revere these "wise and handle sensitive matters with a little provide Marshall Scholars with Catholic High School; Deborah noble" people. They are told that decorum and must report them with comprehensive instruction in Turner, Cleveland Hts/University if they study hard, then maybe one a little common sense. substantive law; the legislative, Hts High Schools; Lori Urogdy executive, and judicial branches of Eiler, Shaw High School. 9 The GAVEL

of previous statements the patient may have made. or in conditions which would fall within Living Will Persons in a terminal condition may have life sustaining the definition of a permanently unronscious Continued from p.4 treatment removed with family consent, and are not state. See Altman M.D., More Physicians to be notified by the physician when the living subject to the 12 month rule, for the obvious reason Broach Forbidden Subject of Euthanasia, will becomes operative. sect. 2133.05(A)(2)(aXi). that the patient normally wouldn't live that long. New York Times, March 12, 1991 (citing If there is no person designated, the law provides In the event that the attending arxl one other physician the New England Journal of Medicine). that the doctor must make diligent efforts to determine that a non-declarant is in a terminal condition, Most doctors will feel overburdened with notify the first of the following people in or a permanent unconscious state for more than 12 the law's requirements and complexity, descending order: the guardian, the spouse, the months (for a permanent unconscious state the second and certainly will resent some of the law's readily available adult children, µirents, or adult physician must be a specialist), and they determine provisions which, in addition to removing siblings. sect. 2133.05(AX2)(a)(ii). The phy.;ician that the patient does not have, nor will regain, decision some ability to make decisions, insinuate must record his efforts in the record. The first making capacity, and there is no power ofattorney for distrust of the medical profession. two people (or majority of a class of people) on health care, a person in the first priority class may give The sheer complexity of the law raises the hierarchy may challenge the decision. sect. written consent to withhold life sustainfng treatment. concerns for everyone. The living will 2133.05(B)(l )(b)(i). O.R.C. sect. 2133.08(A). The decision must be made section is 40 pages long and requires A person so recognized by the law who objects in accordance with either the express wishes of the multiple reading; for a decent understanding to the removal of life sustaining treatment, or patient, or, if none were expressed, in accordance with of the provisions. A number of professors objects to the physician's finding, must inform wishes implied by the patient's values and lifestyle. here quip about "full employment for the phy.;ician of the objection to the determination O.R.C. sect. 2133.08(D)(3). Ifthe priority class does lawyers acts," and this surely is one. or the propa;ed course of action within 48 hours, not make a decision, or is not available, decision While the Ohio State Bar Association has and must file a complaint in probate court within making authority descends to the next class. O.R.C. printed a model living will which has been the next two business days. If the complainant sect. 2133.08(B). In the event of a tie in a class, a approved by the Ohio State Medical fails to file within the time period, the complaint decision to remove or refuse treatment may not be Association, it really is advisable for people is void. O.R.C. sect. 2133.05 (B)(l )(6)(ii). The made. O.R.C. sect. 2133.08(C). Unlike a declarant's to see an attorney to explain the practical law requires the complainant to plead specific family, any of the top five priority classes may object ramifications of signing such a document. statutory grounds of objection, which are listed to the decision once it has been made. O.R.C. sect. There is also serious question about the in O.R.C. sect. 2133.05 (B)(2)(c). 2133.0S(E)(l). As with declarants, the objections law's constitutionality. The Supreme These provisions shrewdly bar the ability of which may be plead are limited, but are more extensive Court in Cruzan held that a state court outside groups from entering the process by than those available to objecting to decisions involving could require clear and convincing proof restricting the class of individuals with standing a declarant. O.R.C. sect. 2133.08 (E)(2),(3). The in determining whether a person would to petition the court for relief. But just to be burden of proof required depends on the objection. want the removal of life-sustaining sure, the law expressly prohibits the Withholding food and hydration from non-declarant treatment. It remains to be seen, however, commencement or joining of a civil action by have additional requirements. Only those in permanently whether a state has a legitimate interest in outside groups, including the state. O.R.C. sect. unconscious states for over 12 months may have requiring a person to remain on life support 2133.05(3). nutrition and hydration removed. O.R.C sect. 2133.09. for one year, when the patient's relatives Objectors may also plead to have the doctors In addition to the doctors' determination that the can show by clear and coovincing evidence reevaluate their decision that the patient is in a nutrition and hydration will no longer provide comfort that the patient would want to be allowed terminal condition or permanently unconscious or alleviate pain, the Probate Court must issue an order to die. state. To invalidate the living will (on grounds to cease nutrition and hydration. O.R.C. sect. Another concern is that law allows the that it was executed under duress, for instance), 2133.09(A)(6), and notice must be given to all of the atterxling phy.;ician and/or the health facility the objector must prove the will is invalid by top 5 priority classes by the court. The priority class where the patient is residing to refuse to clear and convincing evidence. O.R.C. sect. applicant who applies for removal must prove in a comply with a patient's living will if not 2133.05( 4)(d) probate court hearing, by dear and convincing evidence, able or willing to, on moral or other grounds. the statutory requirements for the removal of food and This may not inhibit the patient's transfer, Non Declarants hydration. O.R.C. sect. 2133.09(C)(2). however, to a physician or facility that One of the problems with creating a living will comply. O.R.C. sect. 2133.03(D). will statute is that the vast majority of citizens Potential Problems One of the obvious problems with this (probably about 85%, see Curry, Living Will act While the new law may give some a sense of relief provision is that it puts a patient's express may fall short; Akron Beacon Journal, 7-11-91) in knowing that there is a statute that legitimizes the wishes on a collision course with doctor's will never execute one. With those people in removal oflife sustaining treatment, food, arxl h)Uration and health facilities' newly established mind, Amended Substitute Senate Bill 1 creates in near death circumstances, many are concerned rights. For instance, if a nursing home a framework for the removal of life sustaining about the disruption of what has been quietly decided will not allow the discontinuation of life treatment for a non-declarant. by doctors and family for years, usually without sustaining treatment, but cannot find a One of the major compromises in the law is incident. The 12 month waiting period for non­ bed in a facility which will comply with that a non-Oedarant, in a permanently unconscious declarants will frustrate commonly accepted practice the patient's wishes, unwanted treatment state may not have food, hydration, or life in many hospitals and nursing homes. It also will can and will be administered, thus e&entially sustaining treatment removed or withheld unless clearly negatively affect the cost of health care. Many battering the patient under the common they have been continuously in a permanent doctors see no major ethical dilemma in helping law. unconscious state for over 12 months--regardless patients die when they are in advanced stages ofillness Clearly, it is not easy for doctors and See Living Will I p.11 10 The GAVEL

Living Will Continued from p.l 0 Halloween Bash a Success other health rare workers to witness The first-ever SBA-sponsored Boooster's Bash was contest. Prizes awarded for some ingenious costumes someone dying, but a patient's heldonNovember2, 1991,at Mather Mansion. "The included gift certificates for dinner, theater, and even privacy and autonomy interests turnout was surprisingly good, especially considering weekend packages for two at a couple of Cleveland's should outweigh a doctor or a the poor pre-bash ticket sales," said SBA president finer hotels. facility's moral interests in the Elaine Eisner, rumored to have been dressed up in the A great time was had by everyone present even matter. Doctors also are required Dean Smith costume. though beer was one costume freely provided and worn to give unwanted treatment during Other notable luminaries spied at the bash included by all. Willy "Spuds" Mather was heard to have the 48 hour period in which people three hare krishnas (who later professed to actually slowly turned over in his grave as that gentle, yet ran object to decisions to withdraw espouse the krishna philosophy), assorted professor pungent odor of spilled beer filled the night air. SBA life sustaining treatment. look-a-likes, not mentioning any names (Kornhauser, Secretary Todd Bartimole said he really enjoyed cleaning Eventually, this provision may Gelman, Geier), as well as flappers, superheroes, and up and that mopping up beer beat studying anytime. be tempered by the patient self a variety of inanimate objects. In the end, the hassle was worth the effort, determination act, ( 42 USC sect. A panel of Celebrity Judges including Judge Perk, however, and the SBA should be applauded for their 1395) which will require health and professors Toran, Landsman, and Steinglass judged efforts in creating what will hopefully be an annual care facilities participating in the costumes in a variety of categories for a costume event at C-M. Medicaid and Medicare to tell patients up front about hospital or nursing home policies regarding living wills and the withholding or withdrawal of treatment. The physician also has a responsibility to advise the patient up front about objections to the provisions of a Jiving will, {O.R.C. sect. 2133.02 (D)(2)}, but because there are so many different situations which may arise, a doctor may not be able to effectively convey what situations she could or could not withhold treatment at the time the living will is first seen. O.R.C. sect. 2133.04(D)(2). Only with time shall we be able to see the full effect of this Jaw on This group of partyers wonder why they're in law school doctors, health care workers, and pledge to pool all their money and open up a bar. Owlman and Batwoman were hospitals, nursing homes and found exploring the many rooms especially the people who are of the mansion. patients and residents of them. If the durable health care power of attorney statute (another complex Jaw which had to be revised by Amended Substitute Senate Bill 1), is any indication, revisions to fine tune the living will statute will probably occur in the future.

Rick Cmpinelli and Elana Turoff said they both had The krishnas, the nerd, and the law school Some people met friends at the Bash, a good time despite the fact that they were dressed in pose for a pre-Bash publicity photo. other people came with their own date. their normal street clothes. 11 July, 1991 Ohio Bar Examination

Law School Tabulations

FIRST FIRST REPEATER REPEATER ALL ALL LAW SCHOOL TIMER TIMER N % PASS TAKERS TAKERS N % PASS N % PASS Capital University 104 75 10 60 114 74 Case Western Reserve University 123 91 14 43 137 86 Cleveland State University 176 82 36 33 212 74 Ohio Northern University 27 89 5 60 32 84 Ohio State University 150 95 4 25 154 93 University of Akron 107 79 20 50 127 75 University of Cincinnati 102 93 5 80 107 93 University of Dayton 69 81 8 63 77 79 University of Toledo 87 90 9 56 96 86

The Gavel Cleveland-Marshall College of Law Cleveland State University Euclid Ave. at E. 18th. Cleveland, Ohio 44115