Professor Jonathan Witmer-Rich

The Pepperdine Law Review has accepted C|M|LAW Professor Jonathan Witmer-Rich’s article, The Rapid Rise of “Sneak and Peek” Searches, and the Fourth Amendment “Rule Requiring Notice.”  The article examines delayed notice search warrants, authorized in the USA Patriot Act, permitting police to conduct covert searches of homes and businesses, only notifying the resident of the search weeks or months later.  The article presents the first empirical account of the rapid rise in covert searching:  from around 25 delayed notice search warrants nationwide in 2002, to over 3,700 in 2011, representing approximately ten percent of all federal search warrants.  Most courts to date have held that covert searching raises no Fourth Amendment concerns.  Witmer-Rich argues to the contrary, based on Fourth Amendment first principles, an historical analysis of search and seizure at the time of the founding, and a re-examination of the Supreme Court’s so-called “knock and announce” rule.  In a separate article, still in progress, Witmer-Rich explains why the current statutory regime governing delayed notice search warrants has facilitated the dramatic increase in the practice of covert searching, and proposes legal reforms that would substantially limit the number of delayed notice warrants, while still preserving the technique for cases involving sufficiently compelling law enforcement interests.

On March 14, 2013, C|M|LAW Professor and Associate Dean Mark Sundahl delivered a talk on the Obama Administration’s initiative to reform the International Traffic in Arms Regulations (ITAR) at the Cleveland Foreign Credit Group’s monthly meeting.  Sundahl spoke about the impending paradigm-shift in the U.S. approach to regulating international trade in military hardware and data.  He explain how, under the leadership of President Obama, the complicated, ambiguous, and frequently absurd system of export controls under the bifurcated regulations administered by the Department of Commerce and the Department of State is in the process of being merged into a more rational set of regulations overseen by a single administrative agency.

C|M|LAW and Levin College of Urban Affairs Professor Alan Weinstein’s article, The Effect of RLUIPA’s Land Use Provisions on Local Governments, 39 FORDHAM URB. L.J 1221 (2012), has been selected to be included in the 2013 edition of Zoning and Planning Law Handbook, published by Thomson-Reuters on the basis that it represents an important contribution to the literature of zoning and land use law. In the article, he argues that in the absence of perfect information about how RLUIPA (Religious Land Use & Institutionalized Persons Act) has affected local governments, courts have adopted a pragmatic approach to addressing RLUIPA challenges that combines appropriate judicial deference to a local government that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same local government applies that same law to a specific zoning approval, a circumstance that frequently allows for subjectivity in the approval process and thus the potential for discrimination or arbitrary action against religious uses.

C|M|LAW Professor Phyllis L. Crocker’s article Not to Decide is to Decide: The U.S. Supreme Court’s Thirty-Year Struggle with One Case About Competency to Waive Death Penalty Appeals, 49 Wayne L. Rev. 885 (2004), has been cited in a footnote in the U.S. Supreme Court’s decision in Ryan v. Valencia Gonzales, which was handed down on January 8th.  In a unanimous opinion, the Court held that state court defendants on death row have no federal statutory right to an indefinite stay of execution from a federal court if they are incompetent; the proceedings may continue with the attorney alone litigating the case.  The Court observed, “At some point, the State must be allowed to defend its judgment of conviction.”  Slip op. at 18.  The Court also noted that the Gonzales “does not implicate the prohibition against carrying out a sentence of death upon a prisoner who is insane.”  Id. at n. 18.

You may view the decision here.

Lexis Nexis has published the 3rd edition of The Law of Professional Conduct in Ohio, co-authored by C|M|LAW Professor Susan Becker, C|M|LAW Professor Emeritus Lloyd Snyder and C|M|LAW faculty alum Jack Guttenberg (Capital). It is available both in hard copy and through the Lexis Nexis database. This new edition contains substantial updates and significantly expands its coverage of cutting edge issues such as inadvertent disclosure of confidential client information. It also covers professional conduct rules applicable in the federal district courts located in Ohio and other federal courts.