On May 3, 2014, C|M|LAW Professor Michael Davis spoke at the Society of American Travel Writers annual conference at the Cleveland Convention Center. The title of his presentation was “Copyright and Fair Use.” The discussion centered on the internet. Writers and editors who participated in the discussion expressed confusion regarding whether posted pictures or text are free when taking them from the internet, or whether aggregators have a right to aggregate material found there. In addition, the question was raised whether editors could freely take from the internet as well. Professor Davis explained that the answer to almost all the questions was no: legally, all those copies are copyrighted. With very few exceptions, and depending upon how much material they took, the context of the taking, the nature of the work, and effect on the original author’s potential market, material might or might not be available for fair use.
On May 16, 2014, C|M|LAW Professors Susan Becker and Matthew Green spoke at a free CLE program entitled “A Legal Overview of LGBT Rights in Ohio.” This program was presented in conjunction with a free legal clinic set up to assist members of the lesbian, gay, bi-sexual or transgendered (“LGBT”) community with issues such as discrimination, name changes, family law, and immigration. It was sponsored by the Cleveland Metropolitan Bar Association, Equality Ohio, the Spanish-American Committee, the Legal Aid Society of Cleveland, and Nueva Luz Urban Resource Center.
Professor Becker spoke on the status of same-sex marriage, gave a brief overview of the history of the issue from the 1971 Baker v. Nelson case in Minnesota through the Windsor v. U.S. case decided by the U.S. Supreme Court last summer. Most of her talk focused on the significant changes to federal law (Social Security, taxes, Medicare, Family Leave Act, etc.) since Windsor which extend benefits to same-sex marriage couples. She also focused on the status of the 49 cases now pending in federal courts that will likely lead to a U.S. Supreme Court decision on the constitutionality of states denying marriage to same sex couples. Finally, she spoke about the status of the law in Ohio for LGBT families.
Professor Green explained that despite decades of repeated attempts, Congress has yet to enact federal legislation to ensure equality in employment for LGBT employees. Although protections under some state and local laws exist, a significant number of LGBT workers are without legal protection. Despite these truths, the legal landscape is complex and warrants study, considering LGBT workers face stubbornly persistent and widespread workplace discrimination. To that end, it is imperative that LGBT workers, allies and advocates understand the current legal landscape as well as potential hurdles to protection. Despite the dearth of legislation directly protecting LGBT workers, courts have used stereotyping theory and changing understandings of the concept of “gender” to protect LGBT workers under extant discrimination law. Moreover, the U.S. Supreme Court’s recent, plaintiff-friendly retaliation decisions may further serve as a vehicle in some instances to protect LGBT workers from discrimination, albeit indirectly. In addition to this complex legal landscape, emerging issues with respect to religion and the workplace may well present new challenges for LGBT workers in their quest for equality in employment.
C|M|LAW Professor John Plecnik was quoted in Tax Notes Today, this morning, on reducing the error rate for the earned income tax credit.
The following quote appeared in EITC ERROR RATE GROWS; IMPROPER PAYMENTS TOP $ 13 BILLION, 2014 TNT 93-3:
“John T. Plecnik of Cleveland State University’s Cleveland-Marshall College of Law told Tax Analysts that increasing the IRS’s budget is one way to address EITC errors. Every increase in the IRS budget results in more tax revenues collected or fewer dollars inappropriately granted as credits, he said.
“I think solution number one is the IRS is underfunded, and they frankly need to have a larger enforcement budget if we expect them to have a more accurate administration of the earned income tax credit or any other program,” Plecnik said.
Another solution is for the IRS to wait to confirm the information on a return before issuing a refund, Plecnik said. “We shouldn’t be pushing the IRS to issue refunds preemptively,” he said. “Maybe that means people don’t get their refund until April or May as opposed to February, but I think that’s a small price to pay to avoid putting out billions of dollars in inappropriate credits.”
C|M|LAW’s James A. Thomas Distinguished Professor of Law Chris Sagers’s essay on naming traditions in federal legislation will appear in the Georgetown Law Journal in 2014. The essay, entitled A Statute by any Other (Non-acronomial) Name Might Smell Less Like S.P.A.M., or, The Congress of the United States Grows Increasingly D.U.M.B., was featured earlier this year in a column by New York Times legal affairs analyst Adam Liptak. It documents a rapidly rising trend of sloganeering and manipulation in statute titles, and considers what these evolving trends say about the state of affairs in our federal Congress.
C|M|LAW Legal Writing Professor Claire Robinson-May presented “Enhancing Understanding by Inviting Student Creativity into the Legal Writing Classroom,” on April 26, 2014, at the Southeastern Legal Writing Conference held at Stetson University College of Law. In her presentation, May noted that teachers of legal writing rarely offer students an opportunity to be creative. Rather, they regularly ask students to produce research logs, memos, motions, and other documents that are similar to those produced by their peers. But, in addition to teaching legal writing, May is also pursuing an M.F.A. in creative writing. She brought that experience into her legal writing classroom and invited her law students to bring in their creativity as well. May’s presentation described an assignment in which she required students to outline and analyze a statute and then convey the information to the class through a creative presentation. Student group presentations included an original song, an interactive game, a comic strip, a public service announcement, an original children’s book, and more. May believes the assignment enhanced student understanding of the material by engaging student creativity in the learning process.
C|M|LAW Professor Patricia J. Falk has been appointed to serve on Cuyahoga County Prosecutor Timothy McGinty’s newly announced Conviction Integrity Unit. Falk, along with the other members of the group, will review innocence claims made by felons convicted of crimes in Cuyahoga County. In particular, the group will review applications from prison inmates, attorneys and felons who believe they were wrongly convicted.
For a Plain Dealer article on the topic, as well as a link to the Prosecutor’s Office’s full policy on the topic,click here:
C|M|LAW Professor and Associate Dean Heidi Gorovitz Robertson published Awaiting the court’s word on validity of local zoning control of well locations, in Crain’s Cleveland Business’ Energy Report on April 4, 2014. In this post, Robertson notes that many Ohio communities hope to exercise some control over the shale oil and gas activities that will take place within their jurisdictions. Monroe Falls, in particular, would prohibit drilling in residentially zoned space and impose some other local requirements.
If the Ohio Court of Appeals was the end of the line, Monroe Falls’ zoning ordinance would be dead in the water, along with other local efforts to enact similar ordinances affecting the location of wells. But Monroe Falls appealed to the Supreme Court of Ohio and on February 26, 2014, the Court heard oral argument on two specific issues. First, it considered whether the state statutes concerning oil and gas drilling deprive municipalities such as Monroe Falls of their Ohio Constitutional home rule authority to enact and enforce zoning laws (such as prohibiting shale drilling in residential zones). The second issue was whether Monroe Falls’ ordinances, some of which required oil and gas drillers to submit information to Monroe Falls conflict with the state’s oil and gas law when the driller has already secured a drilling permit from ODNR.
Ohio and the affected driller, Beck Energy, argued that if the court allows localities to create their own rules, even zoning rules, the practice would undermine the state’s ability to carry out the Legislature’s statutory directives. Monroe Falls, however, argued that local land-use regulation could operate in harmony with the state’s control of drilling operations and would not, therefore be pre-empted by the state law.
A couple of justices expressed serious doubts that ODNR really has “sole and exclusive authority” to preclude all local oversight with no administrative appeal. At least one seemed bothered that the statute does not expressly state a preclusion for municipal zoning authority, whereas the Legislature has shown that it knows how to do this in other statutes. Justice Paul Pfeifer focused on the fact that under Ohio’s oil and gas statute, a driller can appeal a denied drilling request to the state agency, but a landowner has no opportunity to appeal the state’s decision to grant a driller’s permit request.
Only a few of the justices spoke up substantially at the oral arguments. We’ll have to wait to hear from the others when the opinion is released. In the meantime, localities across the state will be watching to learn whether they will be able to decide where shale oil and gas drilling may occur within their borders.
To read the full post in Crain’s, click here:
On April 9, 2014, C|M|LAW’s Leon and Gloria Plevin Professor of Law Browne Lewis presented a lecture at Columbia University’s Mailman School of Public Health. The lecture dealt with the of impact reproductive technology on legal parentage. Professor Lewis discussed the factors courts consider when determining the legal mother of a child conceived as the result of a surrogacy arrangement. She also explained the manner in which the court adjudicates the paternity of a man whose wife is artificially inseminated with donor sperm and with an anonymous sperm donor. Lastly, she analyzed the public health consequences of creating designer children using reproductive technology.
In addition, Professor Lewis was recently elected to the AALS Women in Legal Education Archives Subcommittee. This Committee is charged with reviewing the contents of the current archives; creating a mechanism to share the archival information with our members; adding oral histories and other additional data to the archives; and maintaining the Schlesinger Archives.
C|M|LAW Professor John Plecnik’s article, The New Flat Tax: A Modest Proposal For a Constitutionally Apportioned Wealth Tax, was published in the Hastings Constitutional Law Quarterly at 41 Hastings Const. L.Q. 483 (2014). As usual, Professor Plecnik begins with a flourish:
“Eat the poor children,” proposes Jonathan Swift.
“Nay,” protests Occupy Wall Street, “Eat the rich!”
His Article does not really propose eating the rich with draconically high taxes. However, he says, the United States has experienced years of multi-billion dollar deficits. Many liberals have proposed a European-style value added tax or VAT to balance the budget. Many conservatives have proposed a “fair” or flat tax. Like the Devil, regressive consumption taxes go by many names. Whether they know it or not, liberals and conservatives are proposing essentially the same thing — a federal sales tax, which disproportionately impacts the poor and middle class. Plecnik’s article counters with a truly modest proposal for the New Flat Tax on wealth rather than consumption.
Congressional power to “lay and collect Taxes” is subject to two rules. Indirect taxes must be uniform, whereas direct taxes must be apportioned so that states pay in proportion to their population. Under the Obamacare decision, there is little doubt that wealth taxes are direct taxes. However, levying a wealth tax based on population has the unfair result of different tax rates in different states.
For some time, scholars have debated ways to skirt the Apportionment Clause. For the first time, this Article demonstrates how a wealth tax may comply with Apportionment and still be fair. Under this Article’s proposal, the federal government would collect a wealth tax at a uniform rate and retain each state’s constitutionally apportioned share of the tax. The excess unapportioned share would be refunded to the state of origin via a state-level “pick up” tax. This revenue sharing arrangement — inspired by the pre-EGTRRA credit for state death taxes — ensures a uniform state and federal tax burden without redistributing wealth among the states. Thus, horizontal equity is achieved and both the letter and spirit of the law are satisfied.
You can read the full article on SSRN at:
On March 29, 2014, C|M|LAW Professor Patricia J. Falk presented Is VAWA Enough?: The Epidemics of Rape on College Campuses and in the Military at a conference presented by Dusquesne Law School in Pittsburgh– The Violence Against Women Act and Its Impact on the U.S. Supreme Court and International Law.
Professor Falk explained that on January 22, 2014, President Barack Obama created a special task force to combat the epidemic of rape on college campuses. She noted that the statistics are alarming: one in five college women is either sexually assaulted or the victim of an attempted sexual assault during her college years, and only 10-12% of those who are sexually assaulted reported the attacks. Less than a month earlier, in December of 2013, President Obama had issued a warning to the military – that it had to decrease the number of sexual assaults experienced by service members within one year. The President stated that if improvement were not forthcoming, he would have to step in and take more aggressive measures himself. The statistics are also alarming. In Fiscal Year 2010, 19,000 service members were victims of sexual assault, and only about 14 percent of the victims reported the crime. A recent VA study indicated that nearly one in four women sent to Iraq or Afghanistan reported being sexually assaulted.
Professor Falk indicated that within the past few months, the Obama administration had identified two specific sites in our society that are in urgent need of reform in terms of sexual assault. In this talk, she explored whether these very different spaces have some things in common that make the crime of rape more likely to occur. She asked whether, if we can understand the characteristics that make these spaces fertile ground for sexual assault (i.e., more rape-prone), we might be able to turn the tide on these epidemics and make progress toward their eradication. In particular, she examined victims’ accounts, the juxtaposition of non-legal actors in decision making regarding the prosecution of rape, conflicts of interest in those to whom sexual assault is reported, motivated offenders and a surfeit of potential victims, the role of alcohol and drugs, and the current legal rules or systems.