Chris Sagers, the James A. Thomas Professor of Law, was quoted in a piece in the LA Times by business columnist David Lazarus, concerning the aftermath of the merger of AT&T and Time Warner, Inc. When the Justice Department unsuccessfully sued to stop the merger during 2018, the merging parties promised that their deal would not cause consumer prices to increase or increase their power in negotiating with other distributors and content providers. The presiding judge, in an opinion scathingly critical of the government’s lawsuit, found that economic injury from the deal was so unlikely as to be effectively impossible. And yet, in the year or so since the deal’s approval, the firm has in fact raised prices significantly and repeatedly, and has engaged in several bouts of the the “blackout” negotiation strategy that the court said would never occur.
Professor Robertson Discusses Ohio Fracking Law on WCPN
In a story that aired on 90.3 WCPN on August 6, 2019, Professor Heidi Gorovitz Robertson described some Ohio rules that allow oil and gas developers to include a landowner’s land in an oil and gas drilling unit against the landowner’s wishes. Robertson explained that this practice, called mandatory pooling or forced unitization, seems to fly in the face of rights we normally ascribe to property owners — the right to decide how to use the land, the right to decide who may enter it. The practice does, however, prevent a single landowner from from vetoing the collective desire of surrounding landowners to develop underground natural resources.
The story, Ohio Law Allows Energy Companies To Force Landowners Into Leases was featured during the evening radio show All Things Considered. Robertson is C|M|LAW’s Steven W. Percy Distinguished Professor of Law, and a Professor of Environmental Studies at CSU’s Levin College of Urban Affairs.
You may listen to the story here: https://wcpn.ideastream.org/news/ohio-law-allows-energy-companies-to-force-landowners-into-leases
Witmer-Rich Speaks to Court Information Officers on Serial Podcast Course
On August 6, 2019, Jonathan Witmer-Rich, Associate Dean of Academic Enrichment, spoke on a panel at the annual Conference of Court Information Officers, held this year in Cleveland. This international conference of court information officers–the public relations personnel for judicial systems–featured attendees from around the nation and the world, including the Ukraine and Australia.
Professor Witmer-Rich appeared on a panel with the Honorable John Russo, Presiding and Administrative Judge of the Cuyahoga County Court of Common Pleas, and Darren Toms, the common pleas Court Information Officer. The panel discussed Season 3 of the Serial podcast, which focused on the day-to-day workings of criminal justice systems in Cuyahoga County. The Serial producers worked closely with both Judge Russo and Mr. Toms in gaining access to the Cuyahoga County court system.
Professor Witmer-Rich discussed the course he taught in Spring 2019 focused on the Serial Podcast, titled “Understanding and Reforming the Criminal Justice Process.” He and the other panelists discussed the benefits of openness and transparency for a court system, as well as how to manage the possible criticisms and concerns that can arise when a judicial system is placed under close journalistic scrutiny.
Professor Weinstein Presents On Regulation of Outdoor Advertising, Co-Authors Ohio Planning and Zoning Treatise
On July 23, Professor Alan Weinstein participated in the 58th Annual Workshop on Transportation Law, held in Cleveland and sponsored by the National Academies of Science, Engineering, and Medicine. Professor Weinstein presented on the topic of “Local Regulation of Outdoor Advertising.”
Professor Weinstein also became a co-author of the 2019 edition of Ohio Planning & Zoning Law, along with co-authors Stuart Meck, Kenneth Pearlman, John Bredin and Rebecca Retzlaff.
Professor Forte’s Publishes Book Chapter on “Conscience and Republican Government”
Professor David Forte has authored a chapter, titled Conscience and Republican Government, in the just-published book, Contemporary Challenges to Conscience, Aleksander Stepkowski, ed., published by Peter Lang. The book includes contributions from a variety of authors on the challenge of reconciling the state’s claim to uniform application of the law with the individual’s claim to the dictates of conscience.
Professor Forte’s chapter examines the various models, in American political history, for managing this dilemma between absolute state sovereignty and individual conscience. He contends that “there is no single formula of governance that can guarantee the right of conscience,” explaining that the American tradition contains a number of different mechanisms for appropriately protecting individual conscience: (1) infusing the political sovereign with the principles of natural law; (2) limiting political power through divisions of authority; (3) creating regimes of individual rights; and (4) leaving religion a sphere of self-governing independence separate from the sovereign.
“In the end,” Professor Forte concludes, “the struggle for rights of conscience is a struggle to affirm the nature of the human person, his reason, and his liberty.”
Dean Fisher Discusses Mueller Testimony on WKYC Channel 3
Dean Lee Fisher was a featured guest on WKYC Channel 3’s evening news broadcast. Dean Fisher, along with Cuyahoga County Republican Party Chair Rob Frost, discussed the testimony of Special Counsel Robert Mueller. Dean Fisher argued that the key take-aways from Mueller’s testimony are that Russia attempted to influence the 2016 presidential election in favor of President Trump, and that Mueller’s report does not exonerate President Trump on possible obstruction of justice. He observed that throughout the hearing, both Republicans and Democrats simply emphasized the parts of the Mueller report they already agreed with, and that it was unlikely that Mueller’s testimony changed anyone’s mind.
The segment can be seen here.
Professor Forte Featured in Wall Street Journal on Pro-Life Movement
On July 17, Professor David Forte was featured in a front-page Wall Street Journal article on emerging divisions within the pro-life movement. While pro-life activists have long sought to steadily impose new limitations on Roe v. Wade, a new group of activists have pressed for a more aggressive legislative strategy with the goal of overturning Roe.
The article discusses Professor Forte’s role in the pro-life movement’s development of “heartbeat” bills. The article explains that Professor Forte “seized on medical research indicating cardiac activity was a key predictor of infant survival. He wrote an analysis that framed legislation not as a blunt attack on Roe, but as flowing out of the doctrine of Roe and later Supreme Court cases.” Professor Forte advanced the argument to state legislators “that the viability standard was too ambiguous and subject to varying opinions,” and instead proposed that “detection of cardiac activity is a clearer, more precise dividing line, and would offer conservative Supreme Court justices an attractive alternative.”
The article is available to subscribers here.
Sagers Speaks With International Press on Big-Tech Antitrust Investigations; Interviews with Corporate Counsel on New Book
Chris Sagers, the James A. Thomas Professor of Law, spoke with several news outlets about this week’s announcement of a new Justice Department investigation of potential antitrust violations by the big tech platforms, and among them were prominent outlets overseas. He spoke with Agence France-Presse for a story that was carried in various international publications, and appeared on a morning business affairs program on BFM 89.9, a radio station in Kuala Lampur, Malaysia.
Sagers also spoke with Corporate Counsel, a widely read publication of American Lawyer Media, about his new book “United States v. Apple: Competition in America,” which will be published in September by Harvard University Press.
Professor Lewis Elected to American Law Institute
Browne Lewis, the Leon and Gloria Plevin Professor of Law, has been elected to membership in the American Law Institute (ALI). The ALI is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The ALI drafts and publishes Restatements of the Law, Model Codes, and Principles of Law, which are extremely influential in the courts and legislatures, as well as in legal scholarship and education. ALI members are elected on the basis of professional achievement and demonstrated interest in improving the law.
Fox 8 interviews Professor Plecnik on public records law and the impact of Sheil v. Horton
On June 27, 2019, Fox 8 broadcast its interview with Professor Plecnik on public records law and the impact of Sheil v. Horton. Anchor and I-Team Reporter Bill Sheil, the named plaintiff in Sheil vs. Horton, asked Professor Plecnik about his case and the problem of government agencies using nonprofits as conduits for public money to avoid scrutiny and public records requests under the Ohio Sunshine Laws.
Reporter Sheil and Fox 8 brought their case using the new, expedited procedure to contest denials of public records requests in the Ohio Court of Claims, which was voted into law by the Ohio General Assembly in 2016.
From the interview: “Public policy expert John Plecnik says the fact that the case began with the new process that goes through the Court of Claims is significant. ‘So this is really new ground that we’re breaking, and I think it’s positive from the perspective of disclosure and taxpayers that the first major decision says err on the side of disclosure.’”
In Sheil v. Horton, Reporter Bill Sheil and Fox 8 sued Cuyahoga County Community College, better known locally as Tri-C, for disclosure of how much it paid Academy Award winning actress Octavia Spencer to speak at a luncheon in 2017. Tri-C denied Fox 8’s public records request on the grounds that its affiliated nonprofit—the Tri-C Foundation—actually contracted with and paid Ms. Spencer. Even though Tri-C is admittedly a public entity as a state-supported community college, it argued that the Tri-C Foundation is a private, nonprofit organization that is not subject to public records requests. In a unanimous opinion authored by Judge Patricia Ann Blackmon, the 8th Appellate District Court of Appeals of Ohio ruled in favor of Fox 8 and required disclosure.
In ruling for Fox 8, the Court of Appeals applied the “functional-equivalency test” first articulated by the Ohio Supreme Court in its 2006 decision of Oriana House v. Montgomery. To quote the Ohio Supreme Court, “[u]nder this test, the court must analyze all pertinent factors, including (1) whether the entity performs a governmental function, (2) the level of government funding, (3) the extent of government involvement or regulation, and (4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.”
Professor Plecnik closed his interview with Fox 8 expressing his hope that recent case law in favor of disclosure will reduce the need for litigation: “If we can build off of Sheil v. Horton and build a culture of disclosure, it won’t even be necessary for taxpayers to bring these lawsuits.”
CSU Law Faculty 