Author Archives: CSU|LAW

Sterio Writes about Crimean Secession on IntLawGrrls.com

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C|M|LAW’s Charles R. Emrick, Jr.- Calfee Halter & Griswold Professor of Law Milena Sterio has posted On Crimean Secession, Fairness, and Self-Determination on IntLawGrrls.com, a blog on international law, policy, and practice.  She argues that “the Crimean issue is complex, and that instead of simply proclaiming that Ukraine is right and Russia is wrong, we need to step back and analyze the region’s history, as well as to take into account its population’s true desires.”

To read her thoughts on Crimean secession, click here:

On Crimean Secession, Fairness, and Self-Determination

Witmer-Rich Comments on Fox 8 News on County Prosecutors’ Reenactment of 2012 Shooting

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Professor Jonathan Witmer-Rich

Professor Jonathan Witmer-Rich

On March 7, 2014, C|M|LAW Professor Jonathan Witmer-Rich commented on Fox 8 News regarding the re-enactment, organized y Cuyahoga County prosecutors, of a fatal 2012 police shooting.

Witmer-Rich said re-enactments can be helpful.  He noted that “[i]t might be the case it will be helpful for the grand jury to see things as they happened in real time.”  He also said that re-enactments do shed light on how events might have transpired and even escalated.

“How would a reasonable officer react in these circumstances?” said Witmer-Rich, “Seeing it happen in real time might really give the grand jury a better sense of how to draw conclusions of how a reasonable officer would’ve behaved.”

Watch here:

What Really Happened? Shooting Re-enactment May be Helpful

Falk Cited by the Supreme Court of Canada

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Professor Patricia J. Falk

Professor Patricia J. Falk

C|M|LAW Professor Patricia J. Falk’s 1998 article Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39 (1998) was cited on March 8, 2014, in a much anticipated decision by The Supreme Court of Canada. The decision involved a sexual assault case in which the man intentionally perforated a condom and was convicted of sexual assault.  The Supreme Court of Canada upheld the conviction.

Writing about “the distinction made in U.S. criminal and tort law between deceptions going to the fact (“fraud in the factum”) which vitiate consent for the purposes of rape and battery and other deceptions that act as inducements (“fraud in the inducement”) which do not”, on pages 33-34 of the opinion, the court says:

“A further example is the distinction made in U.S. criminal and tort law
between deceptions going to the fact (“fraud in the factum”) which vitiate consent for
the purposes of rape and battery and other deceptions that act as inducements (“fraud
in the inducement”) which do not. As expressed by one leading text, the rule is that
“if the deception relates not to the thing done but merely to some collateral matter”
the consent is valid: R. M. Perkins and R. N. Boyce, Criminal Law (3rd ed. 1982), at
p. 1079. No matter how beguiling it appears at first, the distinction has proved
unworkable. It is not helpful in differentiating between legally effective and
ineffective consent and where it attempts to draw the line has no basis in principle:

see, e.g., P. J. Falk, “Rape by Fraud and Rape by Coercion” (1998), 64 Brook. L. Rev.
39, at p. 159-61.”

Here is a link to the decision – http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13511/index.do   The reference to Professor Falk’s article is not visible on the html page, but you may view it by clicking on the small PDF icon in the right hand corner of the gray box at the top of the page.  The list of references appears on page 10.

Kalir Files Amicus Brief with United States Supreme Court

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C|M|LAW Clinical Professor Doron Kalir, together with Civil Litigation Clinic students Amy Polomsky and Kate Southworth, filed an Amicus Brief with the United States Supreme Court on behalf of the National Association of Social Workers. The brief argues that social workers are entitled to qualified immunity whenever they make a reasonable decision to remove an abused child, even in the absence of a prior judicial hearing. Recently, in a 2:1 decision, the Sixth Circuit held that social workers are not entitled to qualified immunity under those circumstances. The social workers are currently seeking a grant of certiorari from the Court, and 13 States have filed an amicus in their support. Now, the National Organization of Social Workers (NASW) has joined them. The circuit split on the issue, and the fact that the Court has ruled on a related issue 25 years ago – but left this question unanswered – increase the likelihood that the Court will grant cert. in this matter.

Robertson Speaks on Leasing at Crain’s Shale Summit 2014

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On February 20, 2014, C|M|LAW Professor and Associate Dean for Academic Enrichment Heidi Gorovitz Robertson served on a panel entitled “The Most from a Lease” at Crain’s Shale Summit 2014.  Robertson and the two other panelists highlighted potential legal and logistical issues for current and prospective lessees of mineral rights in Ohio.  In particular, the panelists spoke about the role of landmen and brokers in the leasing process, the impact of unitization on lessees’ rights, rights of access to the surface and subsurface, pipeline leases, and more.  The event was attended by nearly 300 lawyers, journalists, industry professionals, landowners, environmentalists, and others.

Video coverage of the event is available here:

http://www.crainscleveland.com/article/20140224/MULTI/302289999

The event program is available here:

Click to access CC93076213.PDF

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

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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

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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:

http://www.crainscleveland.com/article/20140131/SHALEBLOGS/301319996

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

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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:  

http://ohrh.law.ox.ac.uk/?p=4546

Sterio Quoted in Mauritias Press Article on Somali Piracy

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C|M|LAW’s Calfee Halter and Griswold Professor of Law Milena Sterio was quoted recently in an article that appeared in LeMauricien.com, 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:

http://www.lemauricien.com/article/somali-piracy-comes-ashore-mauritius-pirates-are-detained-and-trialed-island-courts

Crocker Named Dean of University of Detroit Mercy College of Law

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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:

http://www.law.udmercy.edu/index.php/17-news/534-phyllis-l-crocker-named-university-of-detroit-mercy-school-of-law-dean