Monthly Archives: October 2011

O’Neill Interviewed Regarding Social Media Governance in the Court Room

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Professor Kevin O'Neill

Professor Kevin O’Neill was recently interviewed for Judicial System v. Social Media – Lawyers, courts argue pros and cons of online communication’s pervasive, yet useful nature, by Kathy Ames Carr, in Crain’s Cleveland Business, October 3-9, 2011.  The article addressed issues concerning the role of social media in the court room.  With access to and use of smart phones constantly increasing, jurors and others involved in trials have easy access to the internet.  This means they can check their email, send and receive tweets and text messages, and browse websites.  This easy, constant, and almost universal access presents challenges to the integrity of trials.  Judges are now wrestling with the problem of managing electronic access to the outside world as cases are carefully presented within the walls of their courtrooms.  According to O’Neill, there are presently no cases addressing the governance of social media the courtroom, and he doesn’t expect to see any cases soon.  Instead, he suggests that judges need to be clear with juries, in their jury instructions, regarding court room expectations with respect to social media and electronic access.  Judges have broad discretion to instruct juries, and O’Neill believes this is an area ripe for their control.

To read this full story, see: https://www.law.csuohio.edu/sites/default/files/newsevents/crainsjvsm.pdf

Litigation and Social Change: Developing Women’s Rights in the Twentieth Century

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C|M|LAW Professor Emerita Jane M. Picker returned to CSU on Tuesday, October 18, to speak on Litigation and Social Change: Developing Women’s Rights in the Twentieth Century.  Professor Picker spoke, in particular, about a case she argued in the U.S. Supreme Court in 1973, LaFleur v. Cleveland Board of Education.  Her client, Jo Carol LaFleur (now Jo Carol Nesset-Sale) was present to introduce her.  LaFleur, then a Cleveland school teacher, had been suspended from her job because she was four months pregnant.  Under the applicable maternity leave rules, teachers were barred from Cleveland classrooms starting in their forth month of pregnancy.  LaFleur wanted to remain in the classroom and her baby was not due until July, well after the end of the school year.  Picker took her case, pro bono, all the way to the U.S. Supreme Court, and won.  Of course, by then LaFleur’s child was long-since born, and LaFleur herself had gone on to attend law school.  But as a result of this effort the women’s protective laws, like that which had barred LaFleur from the classroom, were overturned not only in the Cleveland schools, but all over the country.

For more information, see Chapter 13 in Peter Irons’ The Courage of Their Convictions- Sixteen Americans Who Fought Their Way to the Supreme Court, at: https://www.law.csuohio.edu/sites/default/files/newsevents/ironscouragechap13.pdf

C|M|LAW Conference on the Politicization of Judicial Elections Draws High Attendance, Press, and Publications

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Last week’s C|M|LAW conference on The Politicization of Judicial Elections drew more than 200 participants, and led Professor Susan Becker to be sought out by a Nevada reporter for assistance in understanding a controversial redistricting decision a state judge recently entered there.

The conference was inspired by the November, 2010 elections in which three sitting Iowa Supreme Court justices were ousted from the bench as a result of the court’s unanimous ruling in Varnum v. Brien, 763 N.W.2d 862 (2009). The Varnum decision struck down, on equal protection grounds, a state statute limiting marriage rights to a union between a man and a woman.  The conference examined the effect, if any, the ouster of these judges may have on an judicial independence as well as its effect on future efforts to present state court challenges to laws prohibiting marriage for same-sex couples and to otherwise advance the civil rights for LGBT persons through state court litigation.

More specifically, the conference addressed such issues as the importance of an independent judiciary and whether that independence might be undermined by judicial elections that are highly politicized due to socially contentious issues the court has recently resolved or will resolve in the near future.  In Iowa, for example, that politicization took the form of partisan interest groups funneling resources into the election process to oust justices who voted the “wrong way” by favoring LGBT rights in Varnum.  A similar pattern has emerged in the recent Wisconsin elections where the incumbent justice was almost voted out of office due to opponents’ assumption that this conservative justice would vote to uphold state legislation rendering public employee unions powerless.

Speakers at the conference included Former Iowa Chief Justice Marsha K. Ternus, who spoke on judicial independence and the polarization of the judiciary, and Camilla Taylor, the Lambda attorney who successfully litigated Varnum through the Iowa courts.  Ms. Taylor spoke on the background of the case and her reaction to the election backlash.  In addition, Ohio State Professor Daniel Tokaji, an expert on election law and issues, discussed judicial elections more generally.  C|M|LAW Professors Susan Becker and Matthew Green organized the conference, offered introductory remarks, and moderated the panel discussion.

The Nevada news story, A political judiciary – A Carson City judge’s sortie into politics raises concerns, by Dennis Myers, explains the role of Nevada District Judge Todd Russell in that state’s legislative redistricting.  The Nevada Legislature had enacted redistricting plans for both the Legislature and the state’s U.S. House seats. Those plans were vetoed by Gov. Brian Sandoval, and rather than send the matter back to the legislature for resolution, Judge Russell appointed three ‘special masters’

The article’s author sought out Professor Becker for comment:  “Judge Russell’s creation of an entirely new system of appointing special masters to devise the redistricting plan is creative, and arguably born of necessity,” said Cleveland State University law professor Susan Becker, who has done work on the politicization of the courts. “But a strong argument can be made that the remedy is unconstitutional because it contravenes the unambiguous language of the Nevada constitution’s redistricting provisions.”

You may read the full story at:  http://www.newsreview.com/reno/political-judiciary/content?oid=4186254

The conference video and other supporting materials are available to the public as part of the C|M|LAW Library’s open access research guides at:  https://www.law.csuohio.edu/lawlibrary/guides/sexualorientation#judicialindependence

The Cleveland State Law Review will be publishing the comments and essays submitted by the speakers in its Spring 2012 issue.

Kowalski Moderates “A Whole Trial in 3 Hours”

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On September 27, Clinical Professor Ken Kowalski moderated the Federal Bar Association’s  New Lawyer Training seminar entitled “A Whole Trial in 3 Hours.”   This seminar featured information on voir dire, opening statements, examination of witnesses, and closings.  Speakers included John R. Mitchell of Thompson Hine LLP, Susan Gragel of Goldstein Gragel LLC, Federal Public Defender for the Northern District of Ohio Dennis G. Terez, and Criminal Chief for the United States Attorney’s Ohio, ND Ohio David Sierleja.

Simek Honored as LGBT Shining Star

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On Oct. 11th Visiting Clinical Professor Maya Simek was awarded the Shining Star Award for her contributions to furthering Lesbian, Gay, Bisexual and Transgendered equality in an educational setting. This award honors her as an individual from the LGBT community who has proven to be a distinguished inspiration to others for guidance, inspiration, or scholarship in the field of Education. The award is part of the Cleveland LGBT Heritage Day Celebration co-sponsored by Cleveland’s LGBT Center and the City of Cleveland.  Maya was recognized for the work she did to revitalize both the undergraduate and law student LGBT student organizations, her outstanding service as president of CM Allies, and her many other successful efforts to increase LGBT visibility and equality at CSU and throughout the greater Cleveland area.  Many of Maya’s accomplishments occurred during her two-year tenure as a graduate assistant for LGBT Student Services in CSU’s Office of Diversity and Multicultural Affairs, but the award also recognized Maya’s ongoing efforts to make Cleveland a better community for all its citizens, exemplified by her work to create a legal clinic at the Nueva Luz Urban Resource Center based on a community lawyering model. C|M|LAW Professor Susan Becker, the 2009 recipient of the award, presented the award to Maya.

Sundahl Coordinates 53rd Annual Colloquium on the Law of Outer Space in Cape Town, South Africa

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Associate Dean Mark Sundahl coordinated the 53rd Annual Colloquium on the Law of Outer Space this week in Cape Town, South Africa.  This Colloquium involves leading experts in the field of space law who delivered more than 50 papers in five sessions.  The topics addressed include the commercial use of outer space, space debris and the environmental protection of space, militarization of orbital space, and the use of space for public services.  The Colloquium also hosts the World Finals of the Manfred Lachs Space Law Moot Court Competition which is judged by three sitting judges of the International Court of Justice.  Dean Sundahl presented a paper at the Colloquium on the recently promulgated commercial human spaceflight regulations issued by the FAA and NASA.

Associate Dean Sundahl also co-edited a book, (with V. Gopalakrishnan, Indian Space Research Organisation, Bangalore), New Perspectives on Space Law – Proceedings of the 53rd IISL Colloquium on the Law of Outer Space – Young Scholars Session.  At this time, a single copy is available in the Faculty Lounge for viewing.

Majette Writes About the New Health Care Reform Law

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Professor Gwen Majette

Professor Gwendolyn Roberts Majette has published PPACA and Public Health:  Creating a Framework to Focus on Prevention and Wellness and Improve the Public’s Health in the Fall 2011 issue of the Journal of Law, Medicine, and Ethics.  This article is part of a trilogy of articles she is writing on health care reform and was part of a symposium on public health reform.

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (PPACA), a major piece of health care reform legislation. This comprehensive legislation includes provisions that focus on prevention, wellness, and public health. Some, including authors in the symposium, question whether Congress considered public health, prevention, and wellness issues as mere afterthoughts in the creation of PPACA. This article argues that they did not. This article documents the extent of congressional consideration on public health issues based on Professor Majette’s personal experiences working on the framework for health care reform – in particular, her experience as a Fellow for a member of the Health Subcommittee of the Senate Finance Committee from 2008-2009.

Professor Majette also includes in this work a review of congressional activity in the United States House of Representatives. Her analysis of the congressional meetings and hearings reveals that Congress had a deep understanding about the critical need to reform the U.S. public health and prevention system. The article illustrates how PPACA will have a positive impact on public health by examining the infrastructure that Congress designed to focus on prevention and wellness, with a particular emphasis on the National Prevention, Health Promotion and Public Health Council; the National Prevention, Health Promotion, Public Health, and Integrative Health Care Strategy; and the Prevention and Public Health Fund. The Council, strategy, and fund are especially important because they reflect compliance with some of the Institute of Medicine’s recommendations to improve public health in the United States, as well as international health and human rights norms that protect the right to health.

Professor Majette begins by addressing the nature of public health in general and setting forth why the U.S. public health and prevention system needs to be reformed.   She describes public health as ‘what we as a society do collectively to assure the conditions for people to be healthy.’  Primarily, the system is underfunded and there is insufficient collaboration on public health issues at the state and federal levels.  In addition, among other problems, the public health system is cut-off from the health care delivery system, which reduces its effectiveness.

The article sets forth some of the debates and initiatives in the United States Congress regarding reform of the public health and prevention system.  Specifically, she addresses the Senate’s framework for health care reform, including the Congressional hearings on prevention leading up to the health care reform legislation, and preliminary legislative proposals with emphasis on prevention, wellness, and public health.  With respect to the hearings in both the Senate and the House, she analyzes the testimony of many witnesses who appeared before Congress.

Ultimately, Professor Majette concludes that the National Prevention, Health Promotion and Public Health Council, strategy, and fund fill an important gap in existing federal law by creating a framework that focuses the U.S. healthcare system on prevention and wellness.  The comprehensive framework also complies with international norms on human rights by addressing the health care needs of the entire U.S. population; by addressing the intersectoral nature of health issues through adoption of a Health-In-All Policies approach at the cabinet level of the executive branch of the federal government; and by providing desperately needed resources to make financial investments into public health, prevention, and wellness.

You may read the full text of Professor Majette’s article at http://www2.law.csuohio.edu/newsevents/images/39JLME366.pdf