Plecnik Publishes in Tax Notes on the EITC Ban and the Definition of “Reckless”

C|M|LAW Professor John Plecnik has published Reckless Means Reckless: Understanding the EITC Ban in Tax Notes at Vol. 142, No. 8, Feb. 24, 2014, p. 847.  It was published electronically in Tax Notes Today.

In this article, Plecnik argues that Congress intended to incorporate in the earned income tax credit ban the well-established definition of reckless or intentional disregard from section 6662, which imposes the accuracy-related penalties.  Plecnik has previously argued that the legislative history demonstrates Congress intended the same definition of reckless or intentional disregard for sections 32(k) and 6662. That argument was inspired by Plecnik’s work as pro bono counsel for the Legal Aid Society of Cleveland on two EITC ban cases in the Tax Court. Both cases were settled last fall on terms favorable to his clients with no ban or other penalties. Plecnik thanks Professor Leslie M. Book of Villanova University School of Law as well as Camille R. Gill and Susan E. Morgenstern, his co-counsels from Legal Aid.

Robertson Writes in Crain’s about the Pennsylvania Supreme Court’s Decision on Local Regulation of Shale Oil and Gas Development

On January 31, 2014, C|M|LAW Professor and Associate Dean for Academic Enrichment Heidi Gorovitz Robertson published a blog post, Pennsylvania’s Environmental Rights Might Snag Drillers, in Crain’s Cleveland Business’ Shale Report.  Robertson has written previously in Crain’s about the struggles Ohio and other states face when local governments attempt to control local activities of the shale oil and gas industries.  In particular, Ohio legislation seems effectively to preempt local regulation.  An intermediate court in Ohio has upheld the state’s ability to prohibit such local regulation, but the Supreme Court of Ohio has yet to hear a case on this issue.

In neighboring Pennsylvania, however, the Supreme Court has struck down, on state constitutional grounds, the legislature’s attempt to preempt most local regulation of shale oil and gas drilling.  To do this, the Pennsylvania court relied on an environmental rights provision in that state’s constitution. The court thus returned to Pennsylvania’s local governments the authority to regulate hydraulic fracturing as an industrial use under their land use and zoning ordinances. Pennsylvania’s preemption of local regulation of hydraulic fracturing appeared dead.

According to two state agencies, however, the Court’s decision was not supported by the facts, and on Jan. 2, 2014, they asked the Court to reconsider its December 2013 decision. We don’t know yet whether the Pennsylvania Supreme Court will agree to reconsider.  

In the meantime, Ohio’s can ponder the possibilities.  The Ohio and Pennsylvania Constitutions both have Home Rule provisions and some Ohioans have hoped that Ohio courts would use that provision to strike down Ohio’s legislative preemption of local oil and gas ordinances.  So far, Ohio courts have not done this. Although Pennsylvania has a similar Home Rule provision, that state’s court did not rely on it to strike down the preemption of local regulation.  Instead, it used the environmental rights provision.  Ohio’s Constitution does not include an environmental rights provision.

To read the complete post, click here:

Ray Writes on South African Court’s Emphasis on Procedure in Policy Decisions

C|M|LAW’s Joseph C. Hostetler – Baker & Hostetler Professor of Law Brian E. Ray recently published a blog post entitled South African Informal Traders Forum and Others v The City of Johannesburg and Others: A Promising Start by the South African Constitutional Court, on Oxford Human Rights Hub.  In that decision, the South African Constitutional Court enjoined the City of Johannesburg from evicting informal traders in the inner city.  Regarding this decision, Ray writes “Departing sharply from its normal procedures, the South African Constitutional Court recently issued what we in the States would call an “interim injunction” in a case pending before the South Gauteng High Court called South African Informal Traders Forum and Others v The City of Johannesburg and Others (“SAITF”). The order prohibits municipal authorities in Johannesburg from “interfering” with the activities of multiple street traders in the city center who are lawfully licensed to trade by the City.

Ray notes that the temporary injunction in the SAITF case is an example of this Court playing a stronger procedural role in policy decisions. Recent cases show that, “when operating in a role that it can safely characterize as procedural—especially when faced with a policy that either completely ignores or actively infringes upon social rights—the Court has been much more willing to exercise its authority to at least temporarily stop implementation of a challenged policy, and sometimes even to change it.”

To read this post, click here:

Sterio Quoted in Mauritias Press Article on Somali Piracy

C|M|LAW’s Calfee Halter and Griswold Professor of Law Milena Sterio was quoted recently in an article that appeared in, regarding the work being done by lawyers in that country in the area of Somali piracy.  Sterio has worked with other American lawyers and law professors to support the efforts of Mauritias and other countries in prosecuting Somali pirates.  Sterio outlined the growing problem of child piracy, saying it has emerged as “one of the most difficult legal issues.” She said that most child pirates are released upon capture or immediately after trial and as a result the Somali pirate kingpins are recruiting more and more of them, telling the juveniles that they have nothing to fear if captured.

To read this article, see:

Crocker Named Dean of University of Detroit Mercy College of Law

Professor Phyllis L. Crocker

Professor Phyllis L. Crocker

C|M|LAW Professor of Law Phyllis L. Crocker, who has served C|M as a Professor, as Associate Dean for Academic Affairs and as Interim Dean, has been named the new Dean of the University of Detroit Mercy College of Law.  Congratulations, Dean Crocker!  C|M|LAW is proud of you.

To read the announcement, click here:

Sundahl Presents CLE Webinar on Legal Aspects of Space Tourism

On February 20th, C|M|LAW Associate Dean Mark Sundahl moderated a CLE webinar through the West LegalEdcenter entitled Space Tourism: What Lawyers Need to Know to Service this New Industry. Dean Sundahl spoke on the application of export controls to the operations of Virgin Galactic and other suborbital space tourism operators that will start flying their first passengers into space later this year. The webinar also feature Laura Montgomery of the FAA’s Office of the General Counsel and Milton “Skip” Smith, former Chief of Space Law at the Pentagon’s Air Force Headquarters.


Forte Completes Southern California Lecture Tour

Professor David Forte

Professor David Forte

C|M|LAW Professor David Forte has returned from a February lecture tour in Southern California.  He presented several lectures over a 4-day period.

On February 4, Professor Forte spoke at Chapman Law School on the topic, “Prospects for Islamic Democracy.” He discussed both the ideological as well as cultural, economic, and juridical impediments to democracy adhering in the Arab Middle East. Professor Clarissa Cianciarullo of Chapman Law School offered commentary and question.
On February 5, he spoke at the University of California at Irvine Law School, and on February 6 at the University of Southern California Law School, on “Chief Justice Roberts’ New Federalism.” The thesis is that Chief Justice Roberts is taking up Chief Justice Rehnquist’s attempt to create a constitutional safe harbor for the states where the sovereign governing authority of the states will be free from federal regulatory authority in certain areas. At USC, Forte was joined by Professor Jeorg W. Knipprath of Southwestern Law School who offered commentary.
Also on February 5, Forte lectured to a graduate seminar in political science at the Claremont-McKenna Graduate School in Claremont, California on “The Response of Catholicism and Islam to Liberal Democracy.” He discussed how two religions, each claiming to be “the one true religion,” contend with the pluralistic and individualistic nature of liberal democracy.
Lastly, on February 7, Professor  spoke to a meeting of the Orange County Lawyers Chapter of the Federalist Society on “Religious Liberty: A Traveloque.” In that talk I discussed the historical sources that coalesced to give the United States its conception of the right of religious liberty.

Forte Joins Amicus Brief on NLRB Recess Appointments

C|M|LAW Professor David Forte joined an amicus brief submitted to the U.S. Supreme Court in NLRB v. Noel Canning.  The case is the appeal from the D.C. Circuit striking down President Obama’s recess appointments to the National Labor Relations Board.  The amici argue that the recess appointments clause of the Constitution only permits the President to make appointments during genuine adjournments, or intersessions, of the Congress, and that presidents in recent decades have exceeded their authority in making recess appointments during short intersession recesses.

Lewis Speaks at Michigan State about Terminally Ill Minors and Physician-Monitored Suicide

On Friday, Browne Lewis, C|M|LAW’s Leon and Gloria Plevin Professor of Law and Director of the Center for Health Law and Policy spoke at Michigan State University School of Law at a symposium entitled “Living With Terminal Illness: Should Adolescent Minors Make Decisions at the End of Their Lives?.”  The title of her talk was “Pain Matures: Terminally Ill Minors and Physician-Monitored Suicide”  and it focused upon the recent decision by the Belgium Senate to expand the availability of euthanasia to minors suffering from incurable physical and mental diseases. She discussed the ethical issues that would arise if, in the United States, we permitted terminally ill minors to select physician-assisted suicide.  In addition, she emphasized that the current legal regime contains inadequate safeguards to protect minors.  Lewis opined that if we allow doctors to prescribe lethal medication to be used by terminally ill minors to end their lives we need to ensure that the process is monitored by an independent third-party.  In addition, the law should be amended to include a mandatory reporting requirement for physicians and other health care providers who suspected that the minor was being pressured into taking the medication.

Kalir Speaks to CMBA International Law Section on U.S./Israeli Comparative Law

On February 2, 2014, C|M|LAW Clinical Professor Doron Kalir presented “The U.S. & Israeli Legal Systems: How Similar Are We?” to the International Law Section of the Cleveland Metropolitan Bar Association. (The section is Chaired by Associate Dean Mark Sundahl). The lecture examined the similar common-law backgrounds shared by the two legal systems, as well as some more current differences in constitutional and Supreme Court practice.  Kalir has argued successfully several times before the Israeli Supreme Court and is currently a member of the United States Supreme Court bar.