Monthly Archives: June 2014

Professor Keating’s Reports Cited in U.S. Department of Housing Publication

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Professor Dennis Keating’s reports on the Cuyahoga County Land Bank were cited in the Winter
2014 issue of “Evidence Matters”, HUD User, a publication of the U.S.
Department of Housing and Urban Development: “Countywide Land Banks
Tackle Vacancy and Blight.”

The “Evidence Matters” issue is available here:
http://www.huduser.org/portal/periodicals/em/winter14/highlight3.html

Professor Weinsten Organizes and Speaks at American Planning Association Conference

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Professor Alan Weinstein organized and served as both the moderator and a speaker for the American Planning Association’s Annual Planning Law Review audio/web conference held on Wednesday, June 25th. Other speakers included:  Deborah Rosenthal, AICP, a partner with the Sheppard Mullin law firm in Costa Mesa, California; Bruce Kramer, Professor Emeritus at Texas Tech University School of Law and the Thomson Visiting Professor of Law, Colorado University School of Law; and Michael Allan Wolf, the Richard E. Nelson Chair in Local Government Law at the Levin College of Law, University of Florida. 
Approximately 1,200 subscribers heard the speakers discuss the past-year’s developments in Planning Law, with a particular emphasis on recent state court decisions and legislation involving hydrofracking, the U.S. Supreme Court’s recent rulings on EPA regulation of greenhouse gasses  and trans-boundary air pollution, and the implications of the Court’s recent takings cases on addressing the issue of climate change. 
 

Professor Robertson’s Article Praised by Real Estate Blog

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C-M Law and Levin College of Urban Affairs Professor Heidi Gorovitz Robertson’s article, Applying Lessons from the Gulf Oil Spill to Hydraulic Fracturing, published in the Case Western Reserve Law Review, was recently highlighted by in limine: Blog of Real Estate Litigation and Condemnation- a site for real property litigators and their experts.  The site praised Robertson’s article, calling it a “thoughtful and well-researched paper” with “words of advice for everyone involved in fracking.”
 

Professor Forte Lectures at Capital Law School and at James Wilson Institute

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Professor David Forte recently delivered two lectures.  On April 25, Professor Forte lectured at Capital University Law School on “Chief Justice John Roberts’ New Federalism: William Rehnquist redux.”  On May 23, Professor Forte presented a talk entitled, “Justice Robert A. Jackson and the First Amendment” to the James Wilson Institute on Natural Rights and the American Founding in Washington, D.C.

Professor Mika’s Article on Technology in Classrooms Among Top Ten Downloads

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Professor Karin MIka’s paper, Innovation in the Classroom– The Future of Technology, published in the Spring 2014 issue of the AALS Section on Teaching Methods, was listed on SSRN’s Top Ten download list for “Law Educator: Courses, Materials & Teaching eJournal.”

In this paper, Professor Mika reviews the 2014 Reinvent Law conference and describes various software packages that have been developed to enhance the efficiency of providing legal services.  This article suggests that law schools should be teaching students how to use the software that is now becoming an essential part of practice.

Professor Hoke Presents Paper at Privacy Law Scholars Conference

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Professor S. Candice Hoke presented a co-authored paper entitled Self-Regulation of the Online Behavioral Advertising Industry: Empirical Analysis and Regulatory Competence at the Privacy Law Scholars Conference at George Washington University on June 6-7.  This prestigious conference was co-hosted by the University of Berkeley Boalt Hall School of Law and the George Washington University Law School.  

Professor Hoke’s co-authors on this paper are Lorrie Faith Cranor and Pedro Giovanni Leon.  Professor Cranor is an internationally prominent cybersecurity and privacy specialist at Carnegie Mellon University.  The paper was in competition with many others for receiving acceptance and a spot on the program of this prestigious conference.  Professor Hoke reports that this conference differs from the usual format in that a noted researcher in the general field presents the paper– not its co-authors — and then generates the discussion, in which both the audience and paper authors participate. 
 
Professor Hoke researched and wrote a substantial portion of the paper, including all of the introductory & background material and the regulatory parts.  This paper discusses issues related to the online third-party trackers that gather, aggregate and then sell highly personal profiles of individuals and families drawn from tracking conduct across the web.

Professor Keating Speaks at Social Equity Leadership Conference

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Professor Dennis Keating  spoke about “Regional Equity” on a panel on “Equitable Community Development” at the 13th annual Social Equity Leadership conference of the National Academy of Public Administration.  This conference took place on May 29 at the Graduate School of Public and International Affairs at the University of Pittsburgh.

Professor Green Publishes Article in U. Kansas Law Review

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Professor Matthew Green published a new article entitled What’s So Reasonable about Reasonableness? Rejecting a Case-Law Centered Approach to Title VII’s Reasonable Belief Doctrine in the University of Kansas Law Review (62 U. Kan. L. Rev. 759 (2014)).

The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964.  Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have rejected this literal interpretation and have held that the opposition clause protects employees who complain about conduct reasonably believed to be unlawful discrimination, courts have failed to settle on a uniform standard for determining reasonableness.  Most courts require that employees demonstrate the reasonableness of a belief about the illegality of alleged discrimination in light of existing substantive law. Case law is the objective criterion on which reasonableness is based, and employees are given no leeway for error about judicial interpretations of Title VII.  The article argues that the courts have been correct to reject a literal interpretation of the opposition clause, but as a normative matter proposes a totality of the circumstances approach to assessing reasonableness.  The article also sets forth factors that courts should generally take into account in the reasonableness calculus.  The test articulated in the article is consistent with recent U.S. Supreme Court precedent interpreting Title VII, promises broader protection than the case-law approach and better effectuates the original purposes of the reasonable belief doctrine than current standards.
 

Professor Daiker-Middaugh Wins CMBA Award

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This year, the Justice for All (JFA) Committee of the Cleveland Metropolitan Bar Association will present Professor Pamela Daiker-Middaugh with the JFA Volunteer of the Year Award.  The JFA Committee serves as the oversight committee to coordinate and support the CMBA’s pro bono and public service programs. It annually recognizes a volunteer for his/her outstanding service to the profession and community. Professor Daiker-Middaugh  is being recognized as this year’s JFA Volunteer of the Year Award, for her dedication as a volunteer for many of the CMBA’s pro bono and community programs, her leadership at the Bar, and for her invaluable assistance in encouraging volunteer service among law students and graduates.  The Award will be presented to Professor Daiker-Middaugh on Friday, June 13, at the Cleveland Metropolitan Bar Association’s seventh annual meeting and inaugural luncheon at the Cleveland Marriott Downtown at Key Center.

Plecnik Publishes Article on Three Reading Rule in The News-Herald

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Professor John Plecnik published an article entitled “Three reading rule explanation” in The News-Herald.  The text of the article is available below.

Three-reading rule explanation

The three-reading rule requires legislation to be “read” or considered three times prior to a vote.  The U.S. Senate and House, Ohio General Assembly, and Ohio municipalities all embrace some version of the rule.  However, the rule is far older than Ohio or even the United States.

The Canadian Parliament, which also follows the rule, traces its source back to 15th and 16th century England, when it became the usual practice for the House of Commons.  However, multiple-reading rules are older still.  In the Reforms of 403 B.C., the Athenian Assembly adopted a two-reading rule, whereby each ordinance was read, then posted in the marketplace, and then read a second time prior to a vote.  Athens learned about the dangers of rash legislation the hard way.  In 406 B.C. during the Peloponnesian War, the Athenian generals failed to rescue their drowning sailors from the Spartan navy.  Over Socrates’s objection, the Athenian Assembly immediately voted to execute their generals.  Of course, without their generals, the Athenians soon lost the war.  Realizing their mistake, the Athenians adopted their two-reading rule.

Today, the three-reading rule is oft-criticized as inefficient.  In emergencies, most versions of the rule allow waiver by super-majority vote.  Critics waive the rule in most cases.  In fact, a survey by the Northeast Ohio Media Group shows that many Cleveland suburbs waive the rule nearly 90% of the time.  Before my election, Willoughby Hills also waived the rule in most cases.

Why object to waiver?  It might be more efficient to have a dictator, king, tyrant or mayor make all of our decisions.  But government is not a business and efficiency is secondary to fairness.  The three-reading rule is an ancient right of the people to a deliberative process and to participate in all the workings of their legislature.

According to Jeremy Bentham, the rule has five purposes:  “1. Maturity in the deliberations, arising from the opportunities given to a great number of persons, of speaking upon different days, after they have profited by the information which discussion has elicited; 2. Opportunity afforded to the public, to make itself heard—and to the members, to consult enlightened persons out of doors; 3. Prevention of the effects of eloquence, by which an orator might obtain votes upon a sudden impulse; 4. Protection to the minority of the assembly, by securing to it different periods at which to state its opinions; 5. Opportunity for members absent during the first debate, to attend when they perceive that their presence may influence the fate of the bill.”

But what of delay?  In true emergencies, the three-reading rule should be waived.  In all other cases, Bentham replies, “terrible decrees of urgency, the decrees for closing the discussion, may well be remembered with dread:  they were formed for the subjugation of the minority—for the purpose of stifling arguments . . . .” 

But why would your council wish to stifle argument? 

Sometimes, in the words of Professor Lawrence Keller of Cleveland State University, it is simply “sloppy government.”  Some councils are too lazy for three readings.  Sometimes, however, there is a more sinister reason.

In Willoughby Hills, our first major legislation of the year was passing appropriations for road and sewer projects.  Three council members, myself included, insisted on following the three-reading rule. In response, another council member claimed the service superintendant told him—absent immediate action—a dangerous sinkhole could develop on SOM Center Road.  By the third reading, we learned there was no immediate danger of a sink hole.  Worse still, we learned that the same member who warned of a sinkhole voted on similar appropriations for years that were ultimately paid to a company named Landco.  Public records show that Landco was not only the member’s employer, but owned by his parents.  Had council voted immediately, in all likelihood, more city money would have been paid to Landco before these revelations.

Some may say things have changed since the dawn the democracy, and modern technology obviates the need for three readings.  But the internet is no substitute for deliberation or confronting your council members face-to-face.  The three-reading rule has stood the test of time for good reason.