“Education is not the filling of a pail but the lighting of a fire.” – William Butler Yeats
“I am not a teacher, but an awakener.” – Robert Frost
Nothing is more important to student success and the success of our great law school than the quality of our faculty.
Our faculty are teachers and scholars who offer a level of expertise, accessibility, support, encouragement, and interaction that many law schools don’t offer. They not only inspire our students, they inspire each other, and they inspire me.
We are very fortunate to have outstanding full-time, adjunct, and emeritus faculty, and leaders-in-residence, and I am pleased to share an update on some of their recent excellent scholarship, presentations, teaching, and service. This Monday Morning Message is longer than usual so that I can highlight their work in some detail.
- Professor David Forte presented a paper at the annual meeting of the international organization, the Vandenburg Society, the theme of which was “Communitas.” His paper was entitled, “The history of the legal community: lawyers and universities.” His paper was presented via YouTube, which can be linked here https://www.dropbox.com/s/3xf9kzi5leaiqa5/Professor%20Forte.mp4?dl=0. He also participated in the drafting and submission of two amicus briefs: Little Sisters of the Poor, Saints Peter and Paul Home v. Pennsylvania, arguing that the assertion of third party interests cannot obstruct the protections to religious entities provided by the Religious Freedom Restoration Act; and Chiafalo et al. v. State of Washington arguing that state penalties against electors who vote for a candidate for President other than that to whom they were pledged are unconstitutional. He also participated in the drafting and submission of Bailey v. United States, a petition for certiorari, arguing that the Federal Circuit Court of Appeals erred in adjudicating the disposition of water rights in Oregon without the participation of affected parties while those same rights were being adjudicated in Oregon state court. Professor Forte made a remote presentation on “Civility and Free Speech” to the James Wilson Institute Senior Seminar, Washington, D.C.
- Professor Deborah Geier appeared as a guest on the local NPR affiliate (WCPN) “Sound of Ideas” program to discuss certain tax implications of the pandemic at the federal, state, and local levels. She published the 2020 version of her free e-textbook, Federal Income Taxation of Individuals 2020, with the eLangdell project at CALI (the Center for Computer-Assisted Legal Instruction). In an effort to reduce student cost, Professor Geier published the first edition of this free e-textbook in 2014 and has updated it each year since. It is available as a pdf or Word document, as well as in ePub format (for iPads) and MOBI format (for Kindles).
- Professor Matthew Green published an op-ed in Attorney-At-Law Magazine on the Supreme Court's recent Bostock v. Clayton County decision. Bostock held that Title VII of the Civil Rights Act of 1964's proscription against sex discrimination encompasses claims of sexual orientation and gender identity discrimination as well. Professor Green lauded the Court's opinion for several reasons. Prior to Bostock, LGBTQ individuals grappling with workplace discrimination faced a patchwork of protections that depended on geographic location. Most states, like Ohio, do not protect employees from discrimination on the basis of sexual orientation or gender identity. Bostock provides employees such protection as long as they work for an employer that falls within the scope of Title VII. Professor Green also notes the significance of Bostock in light of Obergefell v. Hodges, which barred states from prohibiting same-sex couples from marrying. Bostock makes Obergefell even more meaningful because employees no longer have to fear being fired for exercising their constitutional right to marry. While Bostock is momentous, Professor Green explains that because the decision is limited to employment, LGBTQ individuals continue to lack important protections in other areas, such as public accommodations. Bostock also leaves several other issues unresolved. For these and other reasons, Professor Green argues that advocates should continue to push for legislation at the federal and state levels specifically addressing issues of importance to LGBTQ individuals. Professor Green’s op-ed can be found here: https://attorneyatlawmagazine.com/bostock-welcome-respite-ongoing-battl.
- Professor Doron Kalir discussed with the Cleveland Jewish News and the Chronicle Telegram (Elyria), the Bostock v. Clayton County Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination. Additionally, Professor Kalir was interviewed by Charles Ellison on WURD Radio Philadelphia on the recent Supreme Court Term. The conversation spanned various issues from Justice Ginsburg's current health condition to Chief Justice Roberts’ move to the Court's center, and from DACA, abortion rights, and LGBTQ's recent opinions to the significance of federal judicial nominations. This has been Professor Kalir's fourth appearance on the show. The Appellate Practice Clinic, which Professor Kalir directs, has secured major victories in the United States Court of Appeals for the Sixth Circuit. The victories are described below.
- Professor Sandra Kerber spoke at a conference entitled “All In Now.” Her presentation addressed Legal Writing and Research moving from Traditional teaching to the Digital Age! Her presentation focused on the ways to teach law students legal research and writing using the electronic universe, so the students in turn are developing skill sets in gaining proficiency in research and incorporating the accuracy of their research into the necessary legal documents or requested work for an employer. Another aspect of her presentation stressed the students' understanding of the value of unmatched editorial electronic enhancements that may be invaluable in refining their research and in turn their legal writing particularly: legal analysis. She stressed in her presentation that unless law students have engaged in researching thoroughly and grasping the law, students cannot write cogently and accurately. She conveyed to the audience that legal research and writing professors must be cognizant of the research tools of today and the movement toward tomorrow: powered by artificial intelligence and analytics which are taking place as well.
- Professor Gwendolyn Majette spoke with the staff of the United States Senate Special Committee on Aging about the issue of health disparities in seniors. The Staff Director noted that her work on health disparities had come across the Committee’s radar and they wanted to discuss it. Consistent with her scholarship, she discussed with the committee the legal structures that create health disparities for people of color; the unique challenges that different groups of color encounter to access health care (African American, Asian Pacific Islander, Hispanic, and Native American); the concepts of equity, equality, and discrimination; and the PPACA Framework to Eliminate Health Disparities and its’ effectiveness. In August, Professor Majette received an invitation to moderate the virtual panel Intersecting Realities: Health, Race, and the Ongoing Legacies of Slavery and Jim Crow as part of the “1619 Project in 2020” sponsored by the University of California Irvine Center for Humanity on October 15, 2020, 8 – 9:30 p.m. Professor Majette will also present at the Viewing Health Justice Through the Lens of Public Health Crises at Loyola University Chicago School of Law at the end of October. A producer with the national health policy podcast Tradeoffs, hosted by Dan Gorenstein, contacted Prof. Majette to discuss whether presidential candidate Joe Biden’s health policy proposals would be particularly beneficial to communities of color. He wanted to look at the research and evidence on this issue. She shared her analysis based on her scholarship. After their conversation he invited her to be on the show in the future.
- Professor Claire May is a contributing author for a new book, Lawyering Skills in the Doctrinal Classroom, from Carolina Academic Press.
- Professor Joseph Mead, in conjunction with co-counsel David Carey at ACLU of Ohio and Kirti Dalta of Hogan Lovells, successfully defended a federal court order before the United States Supreme Court. Professor Mead and his co-counsel earlier obtained a federal court order on behalf of a class of inmates at the federal prison in Elkton, Ohio, directing federal prison officials to take immediate steps to protect more than 800 individuals held at the Elkton prison who are particularly vulnerable to the coronavirus. The Department of Justice appealed the order to the United States Court of Appeals for the Sixth Circuit, which denied a stay, and then further appealed the order to the United States Supreme Court. On Tuesday, May 26, the Supreme Court denied the DOJ's request for a stay, by a vote of 6-3.
- Professor Karin Mika’s article, “A Lesson About Teaching for the Teacher: The Unintended Benefit of Peer Review,” was accepted for publication by the Second Draft, a publication sponsored by the Legal Writing Institute. Professor Mika served as an essay evaluator for “Stop the Hate,” a competition sponsored by the Maltz Museum. She also acted as an editor for International Law, A Year in Review, published by the International Law section of the AALS.
- Professor Reginald Oh’s op-ed piece entitled, “Born in the U.S.A.: Kamala Harris is Eligible to Become Vice President,” was published by Newsweek. A copy is attached here. He gave a presentation at the American Constitutional Society’s Fifth Annual Constitutional Law Scholars Forum at Barry University. His presentation was entitled, “Dehumanization and Equal Protection Doctrine.”
- Professor Kevin O’Neill was a featured speaker, along with the mayor of Savannah, Georgia and the police chief of Phoenix, Arizona, on a nationwide webinar conducted by the American Bar Association entitled, “The Future of Public Protest.” Professor O’Neill addressed the case law governing the regulation of mass demonstrations and marches. The focus of the webinar was on the protest methods employed in the recent Black Lives Matter demonstrations that were ignited by the police killing of George Floyd. A recording is available here.
- Professor Brian Ray participated in two recent webinars discussing the privacy issues raised by digital contact tracing applications. The first was hosted by The Ohio State University Moritz College of Law's Program on Data Governance. The second was titled “Health Surveillance, Privacy, and the Future of Democracy.” This program was part of the City Club of Cleveland's “Happy Dog Takes on the World” series; a recording is available here. He was awarded two related grants to research the privacy and civil liberties issues raised by the use of contact-tracing applications and related surveillance technologies in COVID-19 response efforts from the Charles Koch Foundation and CSU's COVID-19 faculty research fund. Ray led the drafting of a set of recommended principles to guide the State of Ohio's use of these technologies by the CyberOhio Advisory Board that was submitted to Lieutenant Governor Jon Husted. The grants also will fund his work with a group of municipal and county data privacy leaders to develop privacy impact assessments and best practices for using these applications and his work with several groups developing privacy-protective applications. Ray also was invited to collaborate with a group of MIT researchers who are developing a cross-cutting set of privacy principles for these applications.
- Professor Heidi Gorovitz Robertson published Cities Seethe: A Case Study of Local Efforts to Influence Natural Gas Pipeline Routing Decisions, in the West Virginia Law Review. The article considers the efforts of local jurisdictions to influence the routing of a natural gas pipeline through Ohio. In particular, it evaluates the largely unsuccessful efforts of the City of Green, Ohio, to work with other jurisdictions and the judicial and administrative processes to move the Nexus/Spectra Energy pipeline away from Green to a less densely populated area. The article is available at 122 W. Va. L. Rev. 881 (2020), or here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3652422. Professor Robertson served as a Peer Reviewer for the Fulbright Specialist Program's 2020 Cycle 4 application process. She has served as a peer reviewer for the Fulbright Specialist Program since 2017 and has received two Fulbright Specialist grants herself. Professor Robertson completed her term as Chair of the AALS Section on Natural Resources and Energy Law. As Chair, Professor Robertson moderated a program at the most recent AALS Conference, Transnational Environmental Issues & the Role of States, Provinces, Cities, and Indigenous Communities. Professor Robertson was re-elected to the Executive Committees of the Section on Natural Resources and Energy Law and the Section on Environmental Law.
- Professor Christopher Sagers published a piece in the online news magazine Slate, reviewing the work of President Trump's high-profile and sometimes controversial Justice Department antitrust chief, Makan Delrahim. The article, titled, “The Utter Failure of the Trump Administration’s Antitrust Chief,” strongly criticizes Delrahim's tenure as head of antitrust enforcement. Sagers opines, “Probably no U.S. antitrust chief has ever failed quite so thoroughly and variously.” Professor Sagers also spoke with several news outlets in the U.S. and abroad concerning antitrust developments. He spoke with the news organization ProPublica for a story uncovering conduct by the online retailer Amazon, potentially in violation of the antitrust laws. During some years of agitation for antitrust scrutiny of the Big Tech platforms, and several indications of federal action against one or more of them, observes have uncovered a series of specific, suspect strategies by Amazon. Professor Sagers gave his thoughts about whether these new tactics could be anticompetitive or illegal. He spoke with the tech industry magazine Wired for a story about the remarkable, breaking news of a conflict between Apple and Epic Games, maker of the wildly popular game Fortnite. The case brings to a head some years of controversy over Apple's maintenance of the App Store, as software developers have long complained about the rules Apple imposes on them and their view that it does so with a purpose to maintain anticompetitive dominance over mobile software distribution. He was quoted a story in the independent investigative news service Pro Publica, concerning a proposed merger in the online tax-prep industry. The deal, undertaken in a heavily concentrated industry that was already the subject of a rare, fully-litigated merger challenge only a few years ago, is particularly interesting in that it involves acquisition of a very small rival, but nevertheless poses special competition concerns because of that rival's maverick, disruptive nature. If successful challenge is brought, the case might be important precedent for other important sectors, as in Silicon Valley and mass communications, in which many now regret that many such deals have been approved over the last few decades. And he was also quoted quoted by Agence France Presse wire story carried internationally concerning the closely watched congressional testimony of four Big Tech CEOs, the culmination of a year-long investigation into possible antitrust violations by House Judiciary Democrats, and was interviewed about the hearing on a daily news program on BFM radio in Kuala Lumpur, Malaysia.
- Professor Milena Sterio's latest book, Research Handbook on Post-Conflict State Building, was published by Edward Elgar (co-edited with Professor Paul Williams, American University Washington College of Law. She also published an Introductory Note to the European Court of Human Rights case involving Georgia v. Russia in International Legal Materials, Volume 59, Issue 2, April 2020. International Legal Materials are published by Cambridge University Press and edited by the American Society of International Law; online access to ILM is available here: https://www.asil.org/resources/international-legal-materials . Professor Milena Sterio presented on several panels at the American Society of International Law Annual Meeting. First, she moderated a panel on the topic of “Head of State Immunity.” This panel was organized by the International Criminal Law Interest Group at ASIL, and Professor Sterio just finished serving a three-year term as this Group's Co-Chair, and had, in this capacity, organized this panel. She also spoke as a panelist on a panel on the topic of “The Case for Self-Determination in the 21st Century.” This panel was a mock argument before a fictional International Court for Self-Determination, and Professor Sterio argued on behalf of Catalonia, arguing in favor of its proposed secession from Spain. Finally, Professor Sterio served as co-moderator of a session organized by the Women in International Law Interest Group, of which Professor Sterio serves as Co-Chair. At this session, the Interest Group delivered the Prominent Woman in International Law Award to Judge Elizabeth Odio Benito (formerly a judge at the International Criminal Court and the International Criminal Tribunal for Yugoslavia, and currently judge and president of the Inter-American Court of Human Rights). During this session, Professor Sterio and her Co-Chair, Professor Nienke Grossman (University of Baltimore School of Law) engaged in a moderated conversation with Judge Odio Benito. Professor Sterio presented her paper, “Women at the International Criminal Court,” at a session on July 22 of the Feminist Legal Scholarship series. The Feminist Legal Scholarship series is a bi-monthly workshop/presentation series; papers were selected from a competitive call-for-papers. Professor Milena Sterio served as host and moderator of a book launch on July 23. The featured book was Professor Jennifer Trahan's (NYU) “Existing Legal Limits to the Security Council Veto Power in the Face of Atrocity Crimes” (Cambridge University Press 2020). Panelists included Professor Trahan, Richard Goldstone (former Judge, South African Constitutional Court and former Prosecutor, International Criminal Tribunal for Yugoslavia and International Criminal Tribunal for Rwanda), Dean Michael Scharf (Case Western Reserve University School of Law), and Professor Beth Van Schaack (Stanford Law School).
- Professor Mark Sundahl - As the Artemis Project moves ahead, NASA will be setting “ground rules” for their partners in the project by means of a series of bilateral “Artemis Accords.” But what about those states that aren’t invited to participate in the Artemis Project? How will the voices of these countries be heard as space law evolves over the coming five or ten years as humanity returns to the Moon and then moves on to Mars? Prof. Mark Sundahl is a proponent and chief drafter of the Moon Village Association’s grassroots initiative to develop Best Practices for Sustainable Lunar Activity, an evolving collection of responsible practices that will help avoid conflict on the Moon. Prof. Sundahl participated in a number of webinars over the summer in which he explains the nature of the “lunar legal ecosphere” and how the MVA’s Best Practices help to strengthen the rule of law in space. Here are some webinar highlights:
Prof. Sundahl spoke via ZOOM at the 2020 North American Space Summit on a panel regarding Innovations in Space Traffic Management. Prof. Sundahl briefed the audience on the international legal framework that governs responsible behavior in orbit. Prof. Sundahl was appointed to the Board of Advisors for The Space Court Foundation, a nonprofit that engages in partnerships and collaborations that help grow greater awareness of space law and how disputes in space may be resolved.
- Associate Dean Jonathan Witmer-Rich spoke on Fox 8 News about the protests in the wake of the police killing of George Floyd. Asked about the violence that occurred during some early protests, he stated, “It's been very encouraging that we've seen the violence decrease dramatically.” In terms of response by law enforcement, Professor Witmer-Rich stated, police “need to think seriously about what's the course of what's going on here . . . As we see them becoming less violent, I think it makes a lot of sense for the police to say, this is headed in the right direction, let's make sure we don't play any role to aggravate the situation.” The story can be viewed here. Additionally, Associate Dean Witmer-Rich published an essay titled “Consentability, Autonomy, and Self-Actualization,” in the Loyola Law Review. This issue is devoted to a collection of invited essays responding to Professor Nancy S. Kim's book, “Consentability: Consent and Its Limits.” Professor Witmer-Rich's essay evaluates several competing principles underlying consent, such as self-interest, self-sovereignty, and self-actualization. He argues that the nature of consent depends heavily on which of these underlying values consent is believed to serve. He concludes that “self-actualization--the ongoing human project of creating and embodying coherent and meaningful values and choices--is the most fundamental good of autonomy and is the good that society should seek to further in the law of consent.” Professor Jonathan Witmer-Rich was a panelist on a “Hot Topic” webinar titled “Bail and Bond Reform: The Long Fight,” sponsored by the Cleveland Metropolitan Bar Association. The panel was moderated by attorney Jay Milano and also featured Anthony Body, a Bail Disruptor for the Bail Project, and Claire Chevrier, Policy Counsel for the Ohio ACLU. The panelists discussed ongoing problems with bail and pretrial release in Cuyahoga County and statewide, discussed successes and failures in bail reform efforts, and best practices for ongoing bail reform efforts.
- Dean Lee Fisher wrote two articles for Community Leader, a publication of Cleveland Magazine, the first sharing his thoughts on leadership during a crisis. His article can be read here. Dean Fisher’s most recent column is about how Cleveland should respond to racial injustice and systemic racism. It can be read here. Dean Fisher is co-chairing the Task Force reviewing the policies and procedures of the CSU Police Department. He also serves on the CSU 2.0 Growth and Innovation Task Force. Dean Fisher was recently named to the Board of the Ohio Access to Justice Foundation.
- Legal Educator in Residence Howard Katz made two presentations at the Southeast Association of Law Schools (SEALS) annual conference, which was held online. He spoke about “Teaching Fundamentals: Designing an Effective Law School Course” as part of the Newer Law Teachers Workshop. He spoke about the Unified Field Theory of Legal Analysis (originally discussed in his book on law school teaching co-authored with Professor Kevin F. O'Neill) as part of a discussion group on “Teaching Torts.”
- Leader-in-Residence Carter Strang was elected Chairman of the Board of Directors of the Cleveland Council on World Affairs. The mission of the Cleveland Council on World Affairs is to inspire engagement in international affairs and world cultures through education, citizen diplomacy and civic dialogue. He was also named the President of the Cleveland Metropolitan Bar Foundation. The CMBF provides financial support for the Cleveland Metropolitan Bar Association’s award-winning pipeline diversity and community based programs.
- Emeritus Professor David Barnhizer’s book, The Artificial Intelligence Contagion, co-authored by Professor Daniel Barnhizer, was selected #1 of the top 100 Best Robotics eBooks of All Time by BookAuthority. Professor Barnhizer discussed his book as part of an ongoing interview series on “First Things,” a podcast of the Institute on Religion and Public Life, an interreligious, nonpartisan research and educational organization. To listen to the conversation, click here.
- Emeritus Professor Gordon Beggs was profiled in the Society of Hickory Golfers magazine for playing an event in which he honored players and other persons associated with the National Hickory Championship who have gone on to their reward. Gordon played in the championship seven times. The link to the article is here.
- Adjunct Professor Gordon Friedman served as a panelist for the American Constitutional Society’s virtual event entitled, “Police Reform in Practice – An Update on Efforts to Reform the Cleveland Police Force.” The discussion centered around the consent decree entered into by the City of Cleveland and the Department of Justice. The consent decree subjected the Cleveland police force to a federal monitor empowered to reform the force. Federal oversight began in May 2015, with the intention of completing the necessary reforms in five years. Today, however, the reforms are not complete, and the monitoring process is expected to continue. Professor Friedman is a member of the Cleveland Community Police Commission.
- Adjunct Professor David Fusco was inducted as a Fellow in the American College of Employee Benefits Counsel in recognition of his contribution towards the advancement of the field of employee benefits law.
- Adjunct Professor Karen E. Rubin has been appointed to the Ohio Supreme Court’s Commission on Professionalism. She presented at an ABA webinar on “The Ethics of Lawyering in a Time of Disaster,” and at an Ohio Insurance Institute Symposium on “The Eternal Triangle: Ethics Issues for Ohio Insurance Lawyers.” She was also quoted on Wisconsin Public Radio in connection with a Wisconsin Supreme Court ruling involving a judge who accepted a social media friend request from a litigant.
Appellate Practice Victories
- The Appellate Practice Clinic, which Professor Kalir directs, has secured a victory for its client, Richard Lemoine, in the appeal of a habeas petition before the United States Court of Appeals for the Sixth Circuit. Lemoine was convicted for both receipt and possession of child pornography materials. In his Habeas motion before the District Court he argued several constitutional violations, which were all denied. The Sixth Circuit granted a Certificate of Appealability (COA) and appointed the Clinic to represent Lemoine on appeal. In its Briefs, the Clinic argued that Lemoine's convictions for both receipt and possession violated the Double-Jeopardy Clause. The Clinic also argued that Lemoine had the right to appeal his original conviction and failed to do so due to ineffective assistance of counsel. While the Sixth Circuit denied that right-to-appeal claim, it accepted in full the Double-Jeopardy claim and remanded the case for further consideration with the District Court. The court's opinion is available here. Students Gareth Kleiber and Jed Chedid (Clinic Fall 2019) and Halie Evans, Mara Hirtz, and Kelley Taurig (Clinic Spring 2020) worked on the Opening and the Reply Briefs, respectively. Professor Doron Kalir supervised the work and served as Attorney of Record.
- The Appellate Practice Clinic has secured another important victory in the Sixth Circuit Court of Appeals. 20 years ago, John Lowery was convicted of murder and attempted murder for a shooting that occurred in Knoxville, Tennessee. Since then, he has been serving a life sentence in prison. Twelve years after his conviction, however, Mr. Lowery was able to secure new evidence that could prove his innocence: the two eye witnesses who identified him in court recanted, and a new eyewitness came forward attesting that she never saw him at the scene during the shooting. Lowery brought a Habeas Corpus petition before the Tennessee District Court, but was denied due to untimeliness. He then appealed to the Sixth Circuit, which appointed the Appellate Clinic to represent him. On appeal, the Clinic argued that the court below erred by wrongly applying McQuiggin v. Perkins, a 2013 Supreme Court case that allows for some judicially-carved exceptions to the one-year statute-of-limitation rule. In particular, Perkins allows for innocence claims to be heard even after the statute of limitations has run, provided that the petitioner submits "new evidence." The court below held that Lowery's evidence was not new, since they were presented first in state court. Accepting the Clinic's arguments in full, the Sixth Circuit wrote: "whatever new evidence means, the district court erred by concluding that evidence presented to state courts categorically does not qualify. After all, federal law requires habeas petitioners to exhaust their claims in state court before seeking relief in federal court.” Appellate Practice Clinic students Brittany May, Susan Oates, Lauren Wazevich, and Jared Thomson worked hard on the Opening Brief and the Reply Brief. Professor Doron Kalir supervised the work and served as Counsel of Record The court's opinion is available here.
Stay safe. Stay healthy. Stay Committed to Living Justice.
Have a great day. Have a great week.
For copies of past messages, please go to this link: Monday Morning Messages.
My views in all my Monday Morning Messages are my personal views alone and do not reflect the views of our law school or our university.
Dean, Cleveland-Marshall College of Law | Cleveland State University
Joseph C. Hostetler-BakerHostetler Chair in Law