Writ 2012-13

THE

WRIT

2012-13

The Honorable Jessica Price Smith U.S. Bankruptcy Court for the Northern District of Ohio

Photo by Wetzler’s Photography Studios, Cleveland, Ohio

A publication of the Claude W. Pettit College of Law

Message from the Interim Dean

This is a time of transition for the College of Law. David Crago, who served as dean of the college for more than a decade, was named provost and vice president of academic affairs of Ohio Northern University in February 2012. All of us at the College of Law are certain Dave will offer the University the same farsighted leadership that he gave the law school. We are left, however, with the challenge of finding someone to fill his shoes.

To this end, President Dan DiBiasio has assembled an excellent search committee, which has begun the process of finding a new dean with the help of AGB Search of Washington, D.C. By July 2013, we hope to have in place a new dean, who will be the 18th dean in the 127-year history of the college. For more information, please visit the website of either the College of Law or AGB Search.

Until our new dean takes the reins, it is my privilege to serve as interim dean of the college. In that office, I was very happy this past fall to open our Law Library’s new rare book room. It was particularly gratifying that President DiBiasio, the University trustees, the Law College Alumni Advisory Board and the law faculty recognized David Crago’s outstanding contribution to the College by naming this beautiful room in his honor. The David C. Crago Rare Book Room offers a secure place for us to house, display and permit scholars to use the most valuable books in our library’s collection. Thank you to all of our alumni and friends who contributed to the construction of this beautiful room. I hope all of you have a chance to visit our campus soon to see this handsome room and the rare books on display. Until your visit, please enjoy the photographs and description of the room and our collection that appear in this issue.

David Crago is not the first law college dean to move over to the University central administration. More than a century ago, Simeon Fess, an alumnus of the College of Law and its dean, became University vice president. Later, Fess served for many years as president of Antioch College in Yellow Springs, Ohio, before embarking on a political career that took him to the United States Senate. In this issue, Andrea Alexander of the Law Library reminds us that one of the first acts of Fess’ public life was his ardent support of women’s suffrage during the 1912 Ohio Constitutional Convention.

In this centenary of the convention, a time of change at the College of Law, it is worthwhile to remember the features of the law school that will endure. With the support of our alumni and friends, we hope to continue to attract to our faculty scholars like Mike Lewis, who is engaged in the major issues of our day such as the use of drones. We will continue to place those scholars in classrooms with promising students like Chris Hill, and, through the learning that results, Ohio Northern will remain a place where extraordinary men and women like Simeon Fess and Jessica Price Smith begin careers that nobly serve their clients, their communities and the nation.

Sincerely yours,

Stephen C. Veltri Interim dean and professor of law

OHIO NORTHERN UNIVERSITY Pettit College of Law 525 S. Main Street Ada, OH 45810

is an official publication of the College of Law. The Writ is published anually and distributed to alumni and friends of the College of Law. Pg. 2

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Phone: 419-772-1980 Fax: 419-772-1487 www.law.onu.edu lawalumni@onu.edu

Law Alumni Association Board of Directors Officers President Robert S. Ryan, JD ’79 Lexington, Ky.

08-09

Photo by Wetzler’s Photography Studios, Cleveland, Ohio

Immediate past president Jerome L. Skinner, JD ’79 Cincinnati, Ohio Secretary Suzanne F. Garwood, JD ’97 Washington, D.C. Treasurer Honorable Benjamin H. Logan, BA ’68, JD ’72 Grand Rapids, Mich.

Directors Gregory S. Berman, JD ’93 Louisville, Ky. Peter A. Campia, JD ’98 Osterville, Mass.

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John M. Cotner, BA ’67, JD ’70 Troy, Ohio Mitchell Falber, JD ’80 New York, N.Y. John H. Genovese, JD ’79 Miami, Fla.

CONTENTS 4-5

Constitutional Convention of 1912

W. Michael Gradisek, JD ’93 Philadelphia, Pa. Johnnie L. Johnson III, JD ’70 Memphis, Tenn.

Justin F. Madden, JD ’93 Russell, Ohio

6 7 8-9 10 11 12-13

The Rare Book Room

14-15 16-17

College Focus

James W. Pry, JD ’70 Bucyrus, Ohio

Upcoming Events

Jeffrey S. Snell, JD ’07 Chicago, Ill.

18-19

Faculty Updates

Susan A. Wetzel, JD ’97 Dallas, Texas

20-23

Faculty Publication

Philip R. Wiese, JD ’96 Akron, Ohio

The Summer PLUS Program Feature – Jessica Price Smith, JD ’97 Commencement 2012 LLM program Chris Hill’s first-person account of Kosovo

Victoria U. Maisch Rumer, JD ’76, JD ’94 Lima, Ohio Honorable Mark L. Pietrykowski, JD ’79 Toledo, Ohio Grey D. Pratt, JD ’93 Pittsburgh, Pa. Jessica E. Price Smith, JD ’97 Cleveland, Ohio

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Looking back at Ohio’s 1912 Constitutional Convention Simeon Fess, LLB 1894

In 2012, Ohio’s voters were asked to answer yes or no to the question “Shall there be a convention to revise, alter, or amend the constitution[?]” This issue appears on the ballot every 20 years and is thought to be based on Thomas Jefferson’s statement that “one generation has no more right to bind another to its laws and judgments than one independent nation has the right to command another.” As a generation is roughly 20 years, Ohio’s constitution provides that every 20 years, the question of whether to hold a constitutional convention is once again presented to the electorate.

The last time Ohio voted to hold a constitutional convention was in 1912; although the Ohio Constitution has seen many changes in the past hundred years, these have been affected by individual amendments rather than through conventions. Since this year is the centennial of the 1912 Constitutional Convention, it seems fitting to reflect on the role that Ohio Northern University’s law alumni played in that piece of Ohio’s history. That year, 119 delegates were sent to the Constitutional Convention, which first gathered on Jan. 19 in the hall of representatives in Columbus.

These men represented professions ranging from waiter to lumberman to college president (as well as a delegate whose given occupation was simply “capitalist” and an ONU law grad who identified his occupation as “fruit grower”). By far, however, the best-represented occupation was “lawyer,” and several of those lawyers were alumni of Ohio Northern University. Particularly visible among the ONU alumni was Simeon Fess, LLB 1894, president of Antioch College.

Of the 41 constitutional amendments that were eventually presented to Ohio’s voters, one of the more hotly contested was an amendment providing for women’s suffrage. Women’s suffrage was discussed on March 6 and 7, 1912, and the motion to bring the amendment proposing women’s suffrage to the electorate was raised by Mr. W.B.

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Andrea Alexander, reference librarian

Kilpatrick. Discussion centered on whether women’s place was in the home or the voting booth, whether allowing women to vote would break down the traditional chivalrous relationship between the sexes, and whether women even wanted the rights and responsibilities that came with suffrage. Those opposed to women’s suffrage had some particularly vehement arguments to make, such as those offered by one prominent attorney and politician:

You assert that female suffrage will accomplish tremendous things.

I deny it. It is impossible.

In political and pecuniary matters, women are quite as selfish as men, and … in the broad contractual matters of life they are really less careful.

The gentleman also characterized the prototypical Ohio voter whom he represented as a delegate as “the old codger who furnishes the world with a meal ticket, who struggles on amid a harsh civilization while multitudes of ‘her’ parade our streets, wearing beautiful clothing.”

Another opponent of women’s suffrage was a minister and farmer who was willing to “concede the moral superiority of our mothers, wives, daughters and sweethearts.” “The womanly woman has always had her way by her wits,” he stated. “The moral superiority of the woman is merely evidence that they are smarter than the men.” Nonetheless, he concluded that he could not support giving women the vote. “I have come to feel that some of us

should be for our mothers, and our wives, and our daughters and against women’s suffrage because they want us to be.” (Emphasis added.)

Active participants on the pro-suffrage side of the debate included Fess, who was elected vice president of the convention. A strong proponent of giving women the right to vote, Fess made several impassioned points. “In a great many ways women are superior to men in judgment,” he said. “There are today over a million women devoted to study in the various betterments associations in our land.

You say let them go on with the good work, without the ballot. I say give them the ballot and let them become a political force as well as a social force.” He also addressed the argument that giving women the vote would disrupt the balance of chivalry. “If I am in a street car and a woman comes in and I still continue to occupy a seat while she stands, that is no argument that she ought not to have the ballot; that is an argument that I am not a gentleman.”

Fess and his fellow proponents of women’s suffrage won the battle but not the war; the submission of this amendment to the electorate of Ohio was approved by the constitutional convention but was not approved by Ohio’s voters. While women’s suffrage did not become a reality in Ohio until the passage of the 19th Amendment to the United States Constitution in 1920, it is gratifying to see that even a hundred years ago, ONU’s alumni were working to better this state and were a credit to their alma mater in championing of the rights of women.

For further reading on the topic, see Proceedings and Debates of the Constitutional Convention of the State of Ohio: Convened January 9, 1912, 2 vols. (Columbus: The F.J. Heer Printing Co., 1912), and Warner, Landon “Ohio’s Constitutional Convention of 1912,” Ohio State Archaeological and Historical Quarterly vol. 61, n. 1 (January 1952): 11-31.

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Taggart Law Library

Rare Book Room renovation

Andrea Alexander, reference librarian, Marcia Siebesma, associate law librarian, Nancy Armstrong, director of the Law Library

Beginning in May 2012, the Taggart Law Library began a renovation of its Rare Book and Special Collections Room. The project was completed in August 2012 and then formally dedicated as the David C. Crago Rare Book and Special Collections Room on Friday, Oct. 5, 2012.

The existing space has been transformed into an updated and secure space to house the Law Library’s rare books and special collections.

It also offers a comfortable, attractive space for students, faculty, and visiting scholars to use the collections, comparable to the rare book rooms at some of the top law schools in the country.

A core collection of British and American early legal treatises has been in the Law Library for many years. This collection is largely composed of “classic” legal works recognized as important treatises in the history of Anglo-American law, including early editions of Edward Coke’s Institutes of the Laws of England, or a Commentary on Littleton, William Blackstone’s Commentaries on the Laws of England, Matthew Hale’s History of the Common Law, William Hawkins’ Pleas of the Crown, and James Kent’s Commentaries on American Law. In 2008, the library was able to purchase part of an extensive collection of canon law and Pg. 6

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Roman law materials assembled by Richard Kay, professor emeritus in the Department of History at the University of Kansas and a scholar in medieval church history. Among the rare books acquired are a complete 1548-49 set of the Corpus juris canonici, a 1612 five-volume edition of the Corpus juris civilis, and Cardinal Hostiensis’ Summa aurea published in 1573. In addition, this collection includes many supporting historical treatises on Roman and canon law. These books are used by Ohio Northern University faculty for research and are available to visiting scholars from other institutions.

More recently, additional classical works in international law have been added to the rare books collection, such as Emer de Vattel’s Law of Nations and Samuel Pufendorf’s De Jure Naturae et Gentium Libri Octo [Of the Law of Nature and Nations]. Other recent acquisitions include a 1515 edition of Pope Gregory IX’s Decretals (Decretalium Copiosum Argumentum) and a copy of the first American edition of Blackstone’s Commentaries on the Laws of England (1771).

The Taggart Law Library’s special collections include Icelandic legal texts relevant to the Icelandic Legal Exchange program, materials donated by Jay P. Taggart, LLB 1908, Hon. D. ’41, and archival items such as law school publications. Other special collections items

include signed texts by authors who have spoken at Ohio Northern and the ONU collection, which is comprised of articles and books written by law school faculty.

The entrance to the new Rare Book and Special Collections Room is located on the north side of the library, near the Brabson Student Lounge. A door in the corner of the room opens to a small reading room, with two walls lined with cherry and glass Amish-made cabinets to display books and other items for visitors to peruse. Small tables with chairs and task lighting are conducive to individual study.

The valuable rare book collection is protected with safeguards such as locked cabinets and security cameras.

Behind the reading room is a storage area for the rare books and special collection items not on display. Both the reading room and the storage area are fitted with a climate control system, which regulates temperature and humidity to ensure the preservation and long-term sustainability of the Taggart Law Library’s small but growing rare books collection.

The library continues to add to the rare books collection, thanks to generous donations from alumni and other friends of the library.

PRE-LAW UNDERGRADUATE SCHOLARS (PLUS) PROGRAM Members of Plus Program class The Ohio Northern University Pettit College of Law prides itself in promoting diversity and equal opportunity among prospective and current students. For three years, the ONU law college has hosted the four-week summer Pre-law Undergraduate Scholars (PLUS) program. The PLUS program’s objective is to encourage undergraduate freshmen and sophomores from groups that are underrepresented in the legal profession or who face significant financial and familial obstacles in their pursuit of a career in law to pursue an interest in law school and receive pre-law counseling.

The Law School Admission Council (LSAC), part of the DiscoverLaw.org diversity initiative, offers law schools the opportunity to write grant proposals for startup programs.

In 2009, ONU’s College of Law wrote a proposal to LSAC and received one of three national grants to start a customized PLUS program strictly for ONU. In the summer of 2012, The Pettit College of Law was one of only nine PLUS programparticipating schools in the nation. Created

by Lisa Sonia Taylor, coordinator of the program, and Stephen Veltri, interim dean of the College of Law, ONU’s PLUS program has included approximately 25 students each year.

At no cost to these students, the program consists of a pre-law academic and counseling focus as well as an instructive, fun and entertaining atmosphere. Students learn about law school application guidelines, LSAT preparation and résumé-building techniques in the “Bridging the Gap” portion of the program. Students also take two introductory classes, taught by Veltri, Deidré Keller, assistant professor of law, and other law professors, in which they learn what to expect from law school coursework.

Another key part of the program allows for students to take part in multiple field trips

across Ohio. Most of these trips include a program focus, but others are designed for students to bond, relax and have fun.

Destinations for the trips typically include the Ohio Supreme Court, the Ohio State House, Cedar Point in Sandusky, and the Underground Railroad Museum in Cincinnati.

Students also spend free time in Ada restaurants and on campus.

“We kind of wanted to make it fun as well as challenging,” says Taylor. “But, we also wanted to teach them general things about academic preparedness and familiarize them with what law school is about, so they meet different people at the law school.”

The last week of the program features a moot courtroom competition. This year, Joel Chapman, a junior at Drew University in Madison, N.J., and Stephanie Del Real, a junior at High Point University in High Point, N.C., placed first and second respectively.

“For me, personally, what I got the most out of was being able to interact with Dean Veltri,” says Chapman. “I think that was invaluable experience, and people like Professor Keller, and other elite professors and attorneys as well. I would not have been able to have these invaluable experiences without this program.”

According to Taylor, students from other PLUS programs have applied and enrolled from other institutions to ONU Law. Students that come from PLUS programs tend to be very well-equipped and prepared for the trials of law school.

“If anything, I think the program has encouraged us and motivated us to keep pursuing law school,” says Del Real. “Ohio wasn’t really on my radar, but now it definitely is after the experience with the faculty and everyone being so friendly.”

Although the program grant for ONU expires this year, the summer PLUS program will continue under full funding from the College of Law. Students across the country can look forward to the diverse, unique opportunity and location of ONU for next year and years to come.

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Photo by Wetzler’s Photography Studios, Cleveland, Ohio

The Honorable Jessica Price Smith U.S. Bankruptcy Court for the Northern District of Ohio

O

n Aug. 22, 2011, the Honorable Jessica E. Price Smith, JD ’97, was sworn in to a 14-year term on the United States Bankruptcy Court for the Northern District of Ohio.

During her time at ONU’s Pettit College of Law, Price Smith was a member of the Law Review and Moot Court Board of Advocates, served on the Law Review Judicial Review Board, and was inducted into the Willis Society, the highest academic honor society at the College of Law. She graduated from ONU with distinction, continuing the history

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of academic excellence she had established in her earlier education. A native of Cleveland, Price Smith was among the first group of students to be awarded the prestigious Harrison Scholarship at Miami University, her undergraduate alma mater from which she earned a bachelor’s degree in 1994.

Price Smith says that she valued the strong interaction with faculty at ONU as one of the hallmarks of her success. In particular, she credits University Provost David Crago, then a professor at the law college, for giving her what she called “the best advice I ever

After graduation, Price Smith clerked for the Honorable Randolph Baxter, United States bankruptcy judge for the Northern District of Ohio. Baxter was one of Price Smith’s mentors, and it was his seat on the Bankruptcy Court to which she was eventually appointed after his retirement. “As a law clerk for Judge Baxter,” Price Smith says, “I first got the sense I wanted to be a judge as well. I was prepared to give everything I had.” Keeping her goal in mind, Price Smith tailored the next steps in her career to gain the experience she would need to become a bankruptcy judge.

received.” Crago told her that she needed to find a “champion,” and that it wouldn’t be just one champion, but many champions as she began to build a career.

Price Smith worked for two years as an associate with the law firm of Taft Stettinius & Hollister LLP. Focusing on a variety of bankruptcy issues in her early career, Price Smith represented corporate debtors, financial institutions, official creditors’ committees and trade creditors in commercial bankruptcy cases as well as out-of-court debt restructuring. Later, Price Smith practiced at Brouse McDowell LPA in Cleveland, where her areas of practice were commercial and bankruptcy, commercial contract preparation and disputes, commercial litigation, creditors’ rights, and collections litigation for banking and commercial. In 2004, she became the first African-American partner in the then 90-year history of the firm, and she was selected as a 2005 Ohio Super Lawyers Rising Star.

“Professor Crago, at the time, told me to look for who was pulling for me – to see who that person was, and he was right. I have had a series of champions who taught me to keep pushing the envelope and find creative solutions to problems as well as the importance of being part of one’s community and to always give back to those who have given to you,” Price Smith says.

Throughout her career, Price Smith has remained active with various bar associations and professional groups. She was a member of the Cleveland Metropolitan Bar Association (CMBA) and, in 2005, was named co-chair of the William J. O’Neill Great Lakes Regional Bankruptcy Institute, the signature CLE event of the Commercial and Bankruptcy Section of the CMBA. She also worked her way up

through the ranks of the Bankruptcy and Commercial Section of the CMBA, serving as the section’s treasurer in 2006, secretary in 2007, vice chair in 2008, and chair in 2009.

Price Smith also has been a member of the National Bar Association, the Northern District of Ohio Federal Bar Association Board of Trustees, the Ohio Bar Association, the American Bar Association, the Commercial Law League of America, the William K. Thomas Inn of Courts, and the International Women’s Insolvency and Restructuring Confederation. She continues to serve Ohio Northern University as a member of the Pettit College of Law’s Alumni Association Board, a role she has filled since 2006.

Price Smith’s investiture ceremony, held Nov. 18, 2011, at the Howard M. Metzenbaum U.S. Courthouse in Cleveland, Ohio, was presided over by the Honorable Solomon Oliver Jr., chief judge of the United States District Court for the Northern District of Ohio, and the Honorable Marilyn Shea-Stonum, then chief judge of the United States Bankruptcy Court for the Northern District of Ohio. Speakers included Jeffrey Heintz, managing partner at Brouse McDowell (where Price Smith spent most of her professional career); her proud father, John W. Price; and David Crago, then dean of the Pettit College of Law, who shared tales of Price Smith’s days as a talented law student. Chief Judge Alice Batchelder of the 6th Circuit returned to the court where she once sat to administer the oath of office to Price Smith. Sandra Price, Price Smith’s mother, and Gregory Smith, Price Smith’s husband, oversaw her robing ceremony. More than 200 people were in attendance at the investiture, and afterwards invited guests attended a reception sponsored by the Federal Bar Association – Northern District of Ohio Chapter, the CMBA and the Norman S. Minor Bar Association.

Price Smith balances her professional accomplishments with service to her community on various civic boards and through her membership in Alpha Kappa Alpha sorority and Jack and Jill of America Inc. She and her husband are the proud parents of two sons.

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Democratic Governance and Rule of Law LLM Program Marks another Successful Year Howard Fenton, professor of law and director of the LLM Program

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ADA CONTINUES TO BE THE CENTER FOR LEARNING ABOUT DEMOCRACY AND THE RULE OF LAW FOR MANY YOUNG LAWYERS FROM AROUND THE WORLD. Fall 2012 saw the seventh class of international students entering Ohio Northern’s unique LLM program in Democratic Governance and Rule of Law. The 14 students, from nine different countries, make up the largest class ever. News about the program has spread throughout the international legal community thanks to the Internet, and this past year saw the highest number of applications in the history of the program. The seven men and seven women enrolled in the program this year include students for the first time from Saudi Arabia, South Sudan, the Maldives, Liberia, and Iceland.

time teaching and this past summer was a keynote speaker at the Third Annual International Conference of Humanity in Action in BosniaHerzegovina along with Bill Clinton and others. The law school also welcomed professor David Pimentel to the faculty this year to teach in the LLM program. During the past summer, Pimentel taught at the National Advocacy Center in Columbia, S.C. in the Inter-agency Rule of Law Training Program for federal personnel in the Departments of State, Justice and Defense who are being deployed into post-conflict environments. Professor Howard Fenton, the program director, made several trips to Kosovo during the year, advising the government on legislative procedures and conducting legislative-drafting workshops.

The LLM program has become an integral part of the law school’s mission and culture, bringing young lawyers from around the world to Ada and introducing ONU students to different perspectives on the law. In a globalizing world, the law school has continued its tradition of developing leaders for the state, the nation and, now, the world.

While the program was begun initially with a large grant from the United States Department of State, students are supported now by a wide range of public and private donors. There are four lawyers from Afghanistan this year funded from the Public Private Partnership for Justice Reform in Afghanistan, which includes State Department and private funding. Ohio Northern is an active member of the Partnership and is hosting Afghan students for the second year in a row. Among the few law schools participating in this program along with ONU are Harvard, Stanford, and Washington and Lee. A number of foreign governments are supporting LLM student here as well, including Tanzania, Saudi Arabia, and the Maldives. The program will be initiating new cost-sharing agreements with Supreme Court of Bhutan and the Office of the President of Kosovo beginning with the 2013-14 academic year.

This has also been a strong year for the concurrent JD/LLM program at the law school. This program, which allows students to graduate in three years with both degrees, continues to attract attention to ONU from potential law students. There are six L-3 students, five L-2 and six L-1 students in the program for 2012-13. This past summer, the third-year students performed their overseas externships with USAID contractors, NGOs and governments in Georgia, Nigeria, Tanzania and Kosovo. The second year students worked in a variety of organizations in the U.S., including the World Bank, the EPA and the NGO Free the Slaves. Students continually cite their externship opportunities and experience as a big part of what ONU has provided for them.

The program continues to develop strong relationships with a variety of international organizations in the law reform, human rights and development fields to support the externship program and create opportunities for graduates. While not all of the concurrent graduates are involved in international law reform work, the degree is a major asset in securing other positions – in academia, as judicial clerks or in multinational legal offices.

The LLM faculty members continue their activities to strengthen the program. Beginning last year, professor Elena Helmer became the assistant director. Helmer created the groundbreaking anticorruption class for the LLM program and was recently named co-chair of the ABA International Law Section’s International Anticorruption Committee.

She continues as editor of the committee’s award-winning newsletter.

The previous assistant director, Jean-Marie Kamatali, returned to full-

Members of the Class of 2013

Class of 2012 visiting the U.S. Department of State in Washington, D.C. The Writ 2012-13

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ADA TO KOSOVO Chris Hill, an L-3 from Portsmouth, Ohio, is a student in the Concurrent JD/LLM program who has deferred his graduation for two years to continue working on a law reform project in Kosovo that grew out of his second-year externship placement. This is his account of his experience.

There are a few opportunities that people can identify as life-altering; for me, this is one.

The Ohio Northern University JD/LLM dual-degree program presents each student not only with a top-notch education, but also with a unique opportunity to gain relevant international work experience. In making these placements, the program director and faculty utilize their extensive contacts with relevant international projects, institutions and companies and take students’ professional and educational backgrounds, and career goals into consideration. By May 2011, I was in Pristina, Kosovo, interning at a United States Agency for International Development (USAID)-funded business environment legal reform project implemented by a leading development company, Chemonics International.

The Kosovo Business Enabling Environment Program (BEEP) is a three-year project that started in July 2010 to support the transition from a socialist system to a free-market legal environment, broadly through improved rules and regulations, reduced barriers to external trade, and improved access to finance.

Adding to the complexity of its transition to independent statehood, Kosovo faces a number of additional issues, including only partial international recognition and lingering memories of a recent war.

The BEEP project has more than 60 international and local staff that work at both the national and local levels to improve the legal environment. Advocacy efforts are widely focused, with stakeholders including the Prime Minister’s Office, various ministries, the Central Bank, cross-ministerial working groups, Customs, municipal administrations, businesses and business associations. Further, achievement of program initiatives requires Pg. 12

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close coordination with and a constant awareness of other international donor projects.

Originally scheduled for 10 weeks during the summer, I was determined to make the most of this unique opportunity. From the first day, I was engaged in practical application through analysis and staff support on a number of legal topics, including secured transactions, international trade, property, business organizations, data protection and administrative law.

My initial time on the project as an extern presented several unique opportunities, including the significant responsibility and opportunity that comes from assisting the highest-level decision-makers with policy issues that positively impact more than 1.8 million people. Immediately, I was tasked to work with project staff to develop a new Regulation on the Credit Registry (establishing both improved borrowers’ rights and new credit information dispute procedures), which was later adopted by the Central Bank of Kosovo. Additionally, I developed and delivered a workshop to internal staff and project counterparts on basic legal drafting and writing techniques to help improve local capacities.

I quickly found, however, that legal reform was not limited to just legal drafting and advocacy, but included the embracing of an entire reform methodology.

From issue identification and root-cause analysis to monitoring and implementation,

the reform cycle is a never-ending process.

During my time as an extern, I began the development of a toolkit that reflected the project’s reform methodology. Tailored specifically to business environment reform, this toolkit was later finalized and circulated not only in the USAID|Kosovo Mission, but also regionally as a model approach. It is the development of my skills to apply this methodology that I expect to prove invaluable when seeking future work on international legal reform projects.

This hands-on application provided tangible experience that opened doors I hadn’t originally expected. Through the combination of my efforts during the externship and BEEP’s unique needs, the project manager asked me to defer my graduation and offered me a long-term position on the project that I eagerly welcomed.

Over the course of the next year, my responsibilities continued to expand to include the management and coordination of project activities across all components.

Additionally, I’ve been responsible for project monitoring and evaluation and reporting, which provides valuable exposure to USAID regulations and practices. From working with subcontractors and grantees to validating project results to observance of reporting requirements, valuable experience has been gained in managing USAID compliance.

With my time in Kosovo ending with the completion of the project in July 2013, I will have gained two years of critical experience that I would have never thought possible prior to the externship. The ONU JD/LLM program has been crucial to this success, and it would not have been possible without their support.

Thanks ONU!

PETTIT COLLEGE OF LAW CELEBRATES COMMENCEMENT

Past recipients of the honorary doctor of law from the Pettit College of Law 2011 – Robert Cupp, ACIT ’71, BA ’73, JD ’76, justice, Ohio Supreme Court

2009 – Jerome L. Skinner, JD ’79, The Honorable Yvette McGee Brown

Ohio Northern University’s Pettit College of Law celebrated its 2012 commencement ceremony in the ONU Sports Center on Sunday, May 20, 2012. Approximately 90 students were awarded degrees during the ceremony, which was presided over by Daniel DiBiasio, Ohio Northern University president.

John Paul Bratcher, JD ’12, gave the invocation, Heather Armstrong, JD ’12, sang the national anthem and musical benediction, Amy Jeffries, JD ’12, delivered the student address, and Kelli Vaughn, JD ’12, gave the spoken benediction.

Ohio Supreme Court Justice Yvette McGee Brown delivered the commencement address.

Brown, who became the first AfricanAmerican woman to serve as a justice on the Supreme Court of Ohio in 2011, began her career in 1992 when she was the first AfricanAmerican elected to the Franklin County Court of Common Pleas, Domestic Relations and Juvenile division. In this position, she created the Family Drug Court and the SMART Program, an intervention program.

In 2002, she retired from the court to create the Center for Child and Family Advocacy at Nationwide Children’s Hospital in Columbus.

The Center serves children and families who are experiencing abuse. In addition to her legal career, Brown is an active community member, having served on numerous boards, including Ohio University, the Ohio State University Medical Center board, the National Council of the OSU Moritz College of Law, M/I Homes Inc., and Fifth Third Bank of Central Ohio. She also has served as chair of the United Way of Central Ohio and on the

YWCA Columbus Board of Directors.

Gregory L. Frost, JD ’74, received an honorary doctor of law. Frost began his legal career as assistant Licking County prosecutor.

He worked in the juvenile division, adult felony division, civil division and appellate division. While serving as the assistant prosecuting attorney, Frost maintained his role as partner at the law firm Schaller, Frost, Hostetter & Campbell. There, he handled personal-injury lawsuits, domestic-relations matters and small-business issues. In 1993, Frost was appointed to the Licking County Municipal Court, where he served for seven years before being elected to the Licking County Common Pleas Court for 13 years.

In March 2003, Frost was sworn in as judge of the United States District Court for the Southern District of Ohio.

Recipients of the honorary doctor of law from the Pettit College of Law are selected by the Joint Faculty-Trustee Honorary Degree Subcommittee. This subcommittee consists of five trustees, at least one of whom is from the Committee on Academic Affairs; five faculty members, one from each college and elected by the University faculty for four-year terms; and the vice president for Academic Affairs, who serves as a non-voting secretary of the subcommittee.

associate, Nolan Law Group, Cincinnati, Ohio Charles VanDyne, JD ’54, Law Office of Charles VanDyne, Ada and Hardin County, Ohio Reverend Monsignor James L. Ruef, JD ’67, Pastor (Retired), Holy Name Roman Catholic Church, Columbus, Ohio

2008 – Brig. Gen. David P. Carey, JD ’76, U.S. Army JAGC (Retired)

2007 – Thomas F. Bryant, JD ’66, justice, Ohio 3rd District Court of Appeals (Retired)

2006 – Kenneth W. Gideon Esq.,

partner, Skadden Arps, Slate, Meagher & Flom LLP, Washington, D.C.

2005 – Daniel Guy, JD ’52, ACIT

’85, professor emeritus and dean, Ohio Northern University College of Law

2004 – Thomas J. Moyer, chief justice, Ohio Supreme Court

2002 – Robin R. Obetz, JD ’64, ACIT ’85, partner (retired), Vorys, Sater, Seymour and Pease, Columbus, Ohio

This subcommittee reviews suggestions for honorary degrees and then recommends candidates for approval by the Committee on Academic Affairs and the Board of Trustees. Normally, these nominees are selected according to their contributions to the University or college, public service, reputation within a field of endeavor, and achievement and national or international reputation within that field of endeavor.

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COLLEGE OF LAW ADMISSIONS NEWS A SUCCESSFUL CAREER IN LAW EVOLVES FROM A QUALITY EDUCATION THAT INSPIRES, PREPARES AND SUPPORTS >>

SAMPLE REPRESENTATION, CLASS OF 2015 Undergraduate Schools Allegheny College Emory University Franklin and Marshall College Hillsdale College Ohio Northern University Occidental College Ohio State University St. Andrew’s Presbyterian College St. Bonaventure University St. John Fisher College University of Wisconsin Vanderbilt University Walsh University Westminster College Wofford College

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Permanent States Arizona California Florida Georgia New Jersey New York Ohio Pennsylvania South Carolina Utah Wisconsin

Undergraduate Degrees Accounting Economics English Finance French History International Relations Math Music Philosophy Political Science Pre-Med

LLM Program- Foreign Countries Afghanistan Georgia Iceland Maldives Nigeria Saudi Arabia South Sudan Tanzania

Carl Hayslett named 2012 William Brown Scholar Carl Hayslett, L-1, was selected as the recipient of the 2012-13 William J. Brown Memorial Scholarship.

Hayslett graduated magna cum laude from the University of Dayton in 2011, receiving his Bachelor of Music in music education with an instrumental concentration.

Each year, the Office of Law Admissions, in collaboration with the Admissions Committee and dean, selects one outstanding candidate to receive this scholarship. To be considered, a student must display in his or her application a true passion for the pursuit of law, have demonstrated unparalleled academic success and achievement beyond those of his or her peers, and submit a 500-word essay on the topic of “The Role of Lawyers in Society.”

The William J. Brown Memorial Scholarship was established in 2003 by friends and colleagues in honor of William J. Brown, JD ’67, Hon. D. ’80, to generously support a student, to provide distinctive opportunities for learning the law, and to cultivate a culture of sophistication and high aspiration in the College of Law. Brown was the youngest man elected to the position of Ohio attorney general and the longest to serve in that office.

(He served from 1971-83.) He was a senior partner in the firm Kegler, Brown, Hill & Ritter in Columbus, Ohio; taught at Franklin University and Ohio Northern University; and was active in numerous charitable, civic, professional and political organizations.

The ONU Summer Public Interest Fellowship Program

Law Career Services sponsored its 14th annual Public Interest Auction on Friday, April 27, 2012, in the Moot Courtroom. Each year, many businesses and organizations, as well as alumni, professors, students and others in the community, attend, donate and bid on items at this auction.

The ONU Public Interest Auction has provided more than $80,000 for the ONU Summer Public Interest Fellowship Program.

Since 1994, 77 ONU law students have been awarded a summer fellowship stipend of $1,000. The ONU Public Interest Fellows are chosen by a committee of ONU faculty and administration for their past involvement in public interest and their desire to continue their law careers in the public sector after graduation.

Those students who have been awarded stipends volunteer in nonprofit summer programs, assisting those in the community who are most in need: abused women and children, individuals impaired physically and mentally, the aged, minorities, and other underprivileged persons and groups. For more than 18 years, this program has allowed students to pursue their goals and dreams of becoming public interest attorneys.

In 2012, 10 law students received this award. ________________

Jared Baker, L-3

Allen County Prosecuting Attorney’s Office in Fort Wayne, Ind.

Amy Biegemann, L-2

Walworth County District Attorney’s Office in Elkhorn, Wis.

Yelena Grinshpun, L-3

Philadelphia Immigration Court in Philadelphia, Pa.

Lisa Homan, L-3

Legal Aid Justice Center in Petersburg, Va.

Justin MacCanon, L-2

Washington State Division II Court of Appeals in Tacoma, Wash.

Isabel Machie, L-3

Federal Defender Office in Detroit, Mich.

Andrew Pugsley, L-2

Legal Aid Society of Cleveland in Cleveland, Ohio

Jesse Riffle, L-3

Pennsylvania Office of Attorney General in Harrisburg, Pa.

Nina Salazar, L-2

Texas RioGrande Legal Aid Inc. in Edinburg, Texas

Stevie Sneed, L-3

Delaware County Prosecutor’s Office in Muncie, Ind.

Students awarded the scholarship are able to receive full tuition for their tenure at the College of Law. Recipients also are placed in an eight-week internship with the National Association of State Attorneys General in Washington, D.C., during the summer after his or her first year and receive a $3,000 summer stipend.

By establishing this generous scholarship, future students will see the policy-making role of attorneys firsthand and experience cutting-edge issues of the law being discussed, tested and developed. __________________

2012 Public Interest Summer Fellows

Michael Slaughter, JD ’99, Auctioneer

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35th Annual

Perspectives and Law Review Symposium Distinctions on the Future of Legal Education March 26, 2012

2013 36th Annual Law Review Symposium April 19, 2013

RENEE NEWMAN KNAKE Associate Professor of Law Michigan State University School of Law Educating an Entrepreneurial Lawyer

GREGORY MARK Dean, DePaul University School of Law The Perspective of Time: Some Observations on the Relationship of Legal Education and Practice in the Past Century

JEROME ORGAN Professor of Law University of St. Thomas School of Law Legal Education and the Legal Profession: Convergence or Divergence?

LARRY KRAMER Dean, Stanford University School of Law Reforming Legal Education: A View from the Dean’s Office

PATRICIA WHITE Dean and Professor of Law University of Miami School of Law A Broken Model?

Challenges for Legal Education and the Legal Profession Going Forward

ROBERT REIS

Professor of Law University of Buffalo School of Law

Legal Education: A Perspective

The Laurence Neal Woodworth Endowed Lectureship Where the Rubber Meets the Road: A View of the Tax System from a Tax Administrator’s Perspective

in United States Tax Law and Policy

In Conjunction with the ABA Tax Section May Meeting

2013 The Laurence Neal Woodworth Endowed Lectureship May 9, 2013

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Heather C. Maloy

Commissioner, Large Business and International Division Internal Revenue Service

May 10, 2012

Constitution B Grand Hyatt Washington 1000 H Street NW Washington, D.C. 20001

Heather C. Maloy is commissioner of the IRS’s Large Business and International (LB&I) Division.

She oversees tax administration activities for domestic and foreign businesses and partnerships that have assets of $10 million or more and a U.S. tax filing requirement.

From 2006 until 2009, Maloy was in private practice with Skadden, Arps, Slate, Meagher & Flom in its Washington, D.C., office, where she advised clients on tax accounting and partnership tax issues, tax compliance and tax policy. Prior to this, Maloy held a wide variety of positions at the IRS from 1994 to 2006, including associate chief counsel for both the Income Tax and Accounting division and the Passthroughs and Special Industries division. She also served as assistant to the commissioner, deputy associate chief counsel and acting deputy chief counsel. While at the IRS, Maloy received the Meritorious Presidential Rank Award.

2013 Carhart Program April 12, 2013

The 2012 Carhart Program in Legal Ethics On Thursday, March 1, 2012, the College of Law presented its annual Carhart Program in Legal Ethics. This year’s speakers were Charles Dunlap Jr., visiting professor of the practice of law and the executive director of the Center on Law, Ethics and National Security at Duke University School of Law, and David Luban, Bacon-Kilkenny distinguished visiting professor of law at Fordham University School of Law.

Charles Dunlap Jr.

David Luban

Dunlap discussed “Ethical Issues in the Practice of National Security Law,” and Luban’s lecture concerned “The Government Lawyer as Advisor: Some Hard Lessons of the Last 10 Years.”

The Fred L. Carhart Memorial Program in Legal Ethics was established at the College of Law in 2007. The endowment to fund the program comes from the estate of Dwight L. Carhart, JD ’47, in memory of his father, Fred L. Carhart, BS 1902, a lifelong attorney in Marion, Ohio. The program brings eminent scholars, jurists and lawyers to Ohio Northern to actively engage in lectures, seminars and panel discussions for the benefit of our students, the college and University communities, and the public, as well as the bench and bar. The Carhart Program funds lectures and symposia in alternating years.

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FACULTY UPDATES Veltri named interim dean of the College of Law Stephen Veltri, professor of law, became interim dean of the College of Law in July 2012, when David Crago assumed his new position of University provost/vice president of academic affairs. Before coming to ONU, Veltri practiced law in Pittsburgh, where he engaged in commercial, bankruptcy, securities and antitrust litigation. He has published many articles in the field of commercial law. He earned his BA from the University of Pittsburgh, his JD from Georgetown University, and his LLM from Columbia University.

Ward named associate dean for academic affairs Bryan Ward, BA ’83, director of clinical programs and professor of law, is the college’s new associate dean for academic affairs. Ward joined the ONU Law faculty in 1999 after five years in the general practice of law with a focus on bankruptcy and commercial litigation in Troy, Ohio, and the greater Dayton, Ohio area. Ward teaches in the areas of criminal law and legal ethics and professionalism, and he writes in the area of criminal sentencing and criminal procedure.

He received his BA from Ohio Northern University, JD from the University of North Carolina at Chapel Hill and his Ph.D. in political science from Ohio State University.

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FACULTY UPDATES John Martin – Ella and Ernest Fisher Professor of Law Prior to joining the Ohio Northern faculty in January 2006, Martin was a partner with Warner, Norcross & Judd LLP, in Muskegon and Grand Rapids, Mich.; he remains of counsel to the firm. He previously was a professor at the University of North Carolina School of Law, Chapel Hill, and served as visiting professor of law at the University of Texas, the University of Michigan and the University of Virginia.

Martin’s teaching interests are estate planning; estates, wills and trusts; nonprofit organizations; and federal estate and gift taxation. He received his JD and AB from the University of Michigan.

Michael Lewis – professor of law Lewis joined the Ohio Northern faculty in August 2006. Lewis flew F-14s for the United States Navy from 198795 and was a Topgun graduate in 1992. After his naval service, Lewis graduated from Harvard Law School, was a management consultant with McKinsey and Company, and served as a litigation associate with McGuireWoods LLP, in Norfolk, Va. Lewis has published more than a dozen articles and essays on various aspects of the law of war and the conflict between the U.S. and Al Qaeda. He has testified before Congress on the legality of drone strikes in Pakistan and Yemen and on the civil liberties tradeoffs associated with trying some Al Qaeda members or terrorist suspects before military commissions. He has delivered scores of presentations to a variety of audiences, including the international

Military Operations Law conference in Queensland, Australia, the U.S. Army’s JAG school in Charlottesville, Va., and law school events at Stanford, Chicago, Columbia, Penn, Duke, Texas and Northwestern among others.

Bruce Frohnen – professor of law Frohnen joined the College of Law in 2008. Prior to joining the faculty, he served as a visiting scholar with the Johns Hopkins School of Advanced International Studies, a legislative aide to U.S. Sen. Spencer Abraham, and a senior fellow at Liberty Fund Inc. His articles have appeared in journals such as The George Washington Law Review, Harvard Journal of Law and Public Policy, and The American Journal of Jurisprudence. His research interests focus on the nature, development and prospects for constitutionalism and human rights given changing views regarding the nature of human community and the person.

Frohnen earned his BA from California State University, his MA from University of California and his JD from the Emory University School of Law and his Ph.D. in Government from Cornell University.

Jean-Marie Kamatali – assistant professor of law Kamatali came to the Petit College of Law in 2008 as assistant director of the LLM program in Democratic Governance and Rule of Law. Kamatali has taught at the National University of Rwanda (where he also was dean of the Faculty of Law after the 1994 genocide), the University of Leuven in Belgium and at the University of Notre Dame, Indiana University, and Kent State University in the United States.

His publications have included areas of transitional justice, genocide and crimes against humanity, international conflict resolution, human rights, and international criminal law. He earned his Bachelier en Droit and his License en Droit from the National University of Rwanda, his MA from the University of Notre Dame, and his Ph.D. from Karl-Franzens Universitat-Graz.

Lauren A. Newell – assistant professor of law Newell joined the College of Law faculty in August 2012. Her current research focuses on negotiation, including the emotional dimension of negotiation and the impact of social media upon negotiation.

Prior to joining the College of Law faculty, Newell practiced corporate law at the law firm of Boies, Schiller & Flexner LLP in New York City. She represented publicly and privately held companies, hedge funds, investment banks and executives in a variety of transactional work, including the areas of mergers and acquisitions, private equity investments, corporate governance, and executive compensation. Newell earned her BA from Georgetown University and her JD from Harvard Law School.

VISITING FACULTY David Pimentel – visiting associate professor of law Before Pimentel’s academic career began 2007, he headed the Rule of Law efforts in South Sudan for the United Nations Mission in Sudan; he

has led court reform projects in Bosnia and Romania as well. He spent four years as the chief of court management at the United Nations’ International Criminal Tribunal for the former Yugoslavia in The Netherlands. He has conducted research and consulted issues of judicial structure and legal pluralism in Nepal, South Sudan, Mozambique and Turkey.

Pimentel spent the 2010-11 academic year as a Fulbright Scholar at University of Sarajevo, researching the impact of post-war judicial reform in Bosnia and Herzegovina. Pimentel earned his BA from Brigham Young University and his MA and JD from the University of California, Berkeley.

Nancy Neslund – visiting assistant professor of law Neslund joined the College of Law faculty in August 2012 after teaching at Europa UniversitätViadrina in Frankfurt (Oder), Germany, the University of NevadaLas Vegas, and Lewis & Clark in Portland, Ore., and in Masters of Taxation programs in California and New York. Her law career focused on the business and estate advisement of entrepreneurs as well as the government regulation of business and individuals. She is the coauthor of Law, Business and Society, now in its 10th edition, and Taxation of Business Entities. Her research interests include the international impact of domestic tax laws, policies and practices of various countries; the emerging law enabling the establishment of benefit corporations as distinct business entities; and the broader phenomena of social entrepreneurship. Neslund earned her BA from Willamette University, her JD from Columbia University and her LLM from New York University.

The David C. Crago Rare Book room

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The Geography of Drone Use in Transnational Armed Conflicts

how lethal force can be employed.

Lethal force during a time of armed conflict can be applied against any positively identified enemy. The positively identified enemy can be targeted whether they are dangerous or not, whether they are armed or not, and whether they are awake or not. The only restrictions against targeting a positively identified enemy are if they are incapacitated or have surrendered.1

By Michael W. Lewis, professor of law

In law enforcement, the only time one can use lethal force is if the target is an imminent threat to law enforcement or others and an opportunity to surrender has been offered.

However, drones cannot offer an opportunity to surrender before employing lethal force.

Therefore, armed drones may only be used in times of armed conflict. This means that when there are drone strikes in Yemen or in Pakistan, the legal basis for them being used must be a belief that the laws of armed conflict apply rather than laws governing law enforcement.

One of the most important legal consequences of the use of armed drones is that it clarifies larger issues surrounding the boundaries of the battlefield in nontraditional conflicts such as the one between the United States and al Qaeda. The reason why drones, rather than the other tools employed in the conflict with al Qaeda such as special forces, regular army, FBI or CIA, focus us in this way is because drones are exclusively tools of armed conflict.

Armed drones may only legally be used in an armed conflict (as opposed to law enforcement), and the reason for this is that the dividing line between law enforcement and armed conflict is based upon when and Pg. 20

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The argument that law enforcement rules, rather than the laws of armed conflict should apply outside of “hot battlefields� has been advanced by those who oppose the strikes in places like Yemen and Pakistan. These opponents contend that there is no war going

on in Yemen, or at least that there was no war going on in Yemen a year and a half ago when the United States first began targeting Anwar Al-Awlaki over there.2 Likewise they argue that there is no war going on in the FATA areas of Pakistan, and because of that the laws of armed conflict do not apply there and therefore, drone strikes are illegal in that area.

This geographically minimalist argument that seeks to strictly limit the boundaries of the battlefield in conflicts like the one between the U.S. and al Qaeda, is based on the description of the boundaries in the battlefield in non-international armed conflicts. There are two kinds of armed conflict, international armed conflicts (IACs) and non-international conflicts (NIACs).3 International armed conflicts are easy to identify because they involve two countries, for example France versus Germany. However, determining the boundaries of the battlefield in non-international armed conflicts is more difficult because of the nature of the conflict and the fact that one of the participants is a non-state actor. The Tadic opinion4 from the International Criminal Tribunal for Yugoslavia (ICTY) dealt with that issue, when it determined the geography in which the laws armed conflict applied within the former Yugoslavia. This opinion demonstrated an

Based on remarks made during “A Global Issues Panel Discussion: When Drones Attack: The Legal and Political Implications of U.S. Policy,” presented by the St. John’s Center for International and Comparative Law and the St. John’s Journal of International and Comparative Law, together with the American Society of International Law, in April 2012.

understandable hesitancy in applying the laws of armed conflict throughout an entire nation that is undergoing an internal conflict for the entire length of that conflict. Because the laws of armed conflict allow actions whose application should be limited, such as targeting based upon positive identification rather than dangerousness and indefinite detention without charge there is an obvious desire to limit the geography in which such rules apply. Therefore the ICTY sought to curb the geographical and temporal scope of the laws of armed conflict in Tadic.

The Tadic court applied the law of armed conflict only in the geographic areas where there existed a threshold level of violence and a level of cohesion in the actors fighting each other. If this approach was applied to countries such as Yemen where (until recently) there was no armed conflict because the level of violence threshold was not met, then one would conclude that the tools of armed conflict could not be used there.

The sensibilities that underlie this idea are not new and can be traced all the way back to our own civil war, which occurred long

before any of these concepts were debated on an international level. In ex Parte Milligan,5 a Southern sympathizer was captured in Indiana by Union forces. He was tried by a military commission and sentenced to death.

He appealed on the grounds that he should have been afforded trial before an article 3 court rather than a military commission and the United States Supreme Court agreed. The Supreme Court reasoned that one may not try a Southern sympathizer before a military commission in Indiana if the civilian courts were open and available at the time. In places where the institutions of civil society were still functioning, even though there was unquestionably a rebellion going on, those institutions of civil society must be used.

The result may have been quite different in Tennessee where the Union was acting as an occupying army and as such it was temporarily providing the institutions of civil society. But in Indiana, the courts were open and so the laws of armed conflict would not be applied in that area because they need not be applied there.

For internal NIACs, this reasoning that underlay Milligan and Tadic makes perfect sense. However, applying this reasoning to transnational armed conflicts is far more problematic. Transnational armed conflicts are The Writ 2012-13

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Qaeda can regain their civilian immunity is to get away from al Qaeda and definitively disaffiliate themselves from the group.

conflicts between a state and an external nonstate actor, such as the U.S. versus al-Qaeda.6 The problem with using the Tadic factors to define the boundaries of the battlefield in such conflicts is that doing so essentially turns the Geneva Conventions on their head.

In order to understand why this happens, one has to have a basic understanding of the primary purpose of the Geneva Convention and how the Conventions look at the world.

Geneva divides the world into two groups, combatants and civilians.7 Combatants are not just people that pick up guns, but rather people that belong to an organization that enforces the laws of war. It is through the definition of combatancy that the laws of war encourage people to follow the laws of war.

U.S. soldiers are combatants because they go to jail if they violate the laws of armed conflict in Iraq or Afghanistan. Because the United States enforces the laws of war, its soldiers are combatants.

The advantage of being a combatant is that they are entitled to the combatant’s privilege, which means that combatants are not legally liable for the harm and destruction they cause as long as they complied with the laws of war. For example, if a combatant blows up a building and hurts the people in the building, he cannot be charged with assault, arson, murder, etc. if the attack was conducted in keeping with the laws of war.

The disadvantage of being a combatant is that they are targetable 24/7 because of their status as an identified enemy.

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Everyone that is not a combatant is a civilian.8 The advantage of being a civilian is that they are never targetable under any circumstances.

The disadvantage is that civilians are not allowed to participate in armed conflict and if they do so they forfeit the immunity that comes with being a civilian. When a civilian picks up a gun and starts firing, they lose their immunity. They can regain their immunity by putting their gun down and ceasing to participate in hostilities. Some civilians that continue in the revolving door between fighter by night and farmer by day, or actively perform leadership roles are termed continuous combat functionaries and they become targetable 24/7 just as though they were combatants. This permanent loss of civilian immunity is based upon the function that the civilian performs within an armed group.

In this way, International Humanitarian Law (the term used to describe Geneva Convention law “IHL”) says that if someone is just like a combatant, then they are targeted like a combatant.9 However, they are not entitled to the combatant’s privilege, because they are still considered to be civilians directly participating in hostilities. This person is someone who does not belong to an organization that enforces the laws of war.

This is how IHL deals with groups such as al Qaeda. It denies them the combatant’s privilege, but it permits the continuous targeting of active members of such groups.

The only way someone in a group like al

The problem with using the Tadic factors to determine the geographical scope of a transnational armed conflict is that it gives al Qaeda and other terrorist organizations another way to effectively regain their civilian immunity. By simply crossing the border into Pakistan, or going to Yemen, or to Somalia, or Sudan, places where law enforcement is not effective, and where the threshold of violence required by Tadic is not present an al Qaeda member could effectively regain their civilian immunity. This is because the geographical minimalist view that applies the Tadic factors would consider the lack of local violence to mean that the laws of armed conflict would not apply in those areas and the tools of law enforcement would be the exclusive method by which these terrorists could be pursued.

The idea that IHL should be interpreted in this manner, resulting in one of IHL’s least favored groups (terrorists that target civilians and hide amongst the civilian population) being afforded this kind of sanctuary seems contrary to the core principles of IHL. The alternative to applying Tadic to transnational armed conflicts is to apply the neutrality law principles that have determined the boundaries of the battlefield in IACs for centuries, and it appears that this is what the U.S. is doing. While the U.S. position is far from clear and definitive as to where drone strikes may be legally employed or the legal rationale for employing them, it is possible to cobble together the speeches of various administration officials from the past couple of years (Koh at ASIL in 2010, Brennan at Harvard in 2011 and Holder at Northwestern in April 2012) and get a feel for how the administration views this issue. What they appear to be doing and the norm I believe they are effectively creating is that the boundaries of the battlefield in transnational armed conflicts will be determined by a modified version of centuries-old neutrality law.

The law of neutrality has been used to determine the boundaries of the battlefield and the rights and obligations of nations involved in IACs for more than a century.10 During a conflict between state A and state B where some of A’s forces take refuge in or use a neutral state as a base of operations that neutral state has an obligation to remove A’s forces from its territory. When state B

demands that this removal take place, the neutral state has three choices in response. It can become an ally of B and allow B’s forces onto its territory to go after A’s forces, it can become an enemy of B by preventing B’s forces from entering its territory and harboring A’s forces, or it can remain neutral by denying B’s forces the right to enter while expelling A’s forces from its territory.

The conflict between the U.S. and al Qaeda has displayed all three of these choices in its application of neutrality law principles to a transnational armed conflict. The first example occurred when the United States approached Afghanistan in the aftermath of 9/11 and demanded the expulsion of Osama bin Laden, Mullah Omar and others.

Afghanistan acted as an enemy of the U.S. by refusing to discharge its neutral obligations and harboring bin Laden and other al Qaeda members within its borders. As a result, when the U.S. invaded Afghanistan to pursue al Qaeda, it also attacked the Taliban because they effectively became the enemy by harboring al Qaeda. The second example is that of Yemen when the U.S. approached it over al Qaeda’s presence within its borders.

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 12, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva I]; Geneva Convention Relative to the Treatment of Prisoners of War, art. 13, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 2, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 2 Note that al-Awlaki’s name is also transliterated al-Aulaqi, Complaint, Al-Aulaqi v. Obama, 727 F.Supp.2d 1 (D.D.C 2010) (No. 10-01469) (the complaint filed in 2010 contended on 17 separate occasions in 11 pages that the targeting of al-Aulaqi was occurring “outside of armed conflict”); see also Rise of the Drones II: Examining the Legality of Unmanned Targeting: Hearing Before the Subcomm. on Nat’l Sec. and Foreign Affairs of the H. Comm. on Oversight and Gov’t Reform, 111th Cong. (Apr. 28, 2010) (statement of Mary Ellen O’Connell, Professor, University of Notre Dame), available at http://oversight.house. gov/images/stories/Hearings/ pdfs/20100428OConnell.pdf (Prof.

O’Connell maintains that there is no 1

Yemen chose to act as an ally of the United States and (as WikiLeaks has made clear) granted permission for the U.S. to use armed force on its territory. With this permission, the U.S. has conducted numerous drone strikes on Yemeni territory since 2002, including the one that killed Anwar al-Awlaki in September, 2011. The third example is when states retain their neutral status by denying the U.S. permission to employ armed force on their territory while discharging their neutral obligations by expelling or arresting al Qaeda members within their borders.

Numerous European states have taken this approach by either detaining suspected al Qaeda members themselves or allowing U.S. law enforcement to apprehend al Qaeda members on their territory.

The most widely analyzed event in the conflict with al Qaeda of the past few years (the killing of Osama bin Laden by U.S. special forces in Pakistan) also fits within this framework.

Pakistan had clearly acted as an ally of the U.S. on a number of occasions by giving the U.S. permission to use force on its territory, either in the form of drone strikes or special forces missions. However, there were also ways that

armed conflict in the border regions of Pakistan either).

3See Geneva I and Geneva 3, art. 3 (all four Geneva Conventions contain identical article 3’s, often termed “common article 3”. Common article 3 describes the application of the Geneva Conventions to the two types of armed conflicts. The difference between these two types of conflicts is more fully described by the 1977 Additional Protocols to the Geneva Conventions, see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I] (addressing international armed conflicts), with Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609 (1987) [hereinafter Additional Protocol II] (addressing non-international armed conflicts).

4 Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, paras. 561–62 (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997) (“[A]n armed conflict exists whenever there is a resort to armed force

Pakistan had acted as an enemy toward the U.S. by failing to make any effort to detain or expel al Qaeda members from its territory.

The fact that bin Laden had lived undisturbed within a few miles of Pakistan’s military academy was viewed as evidence that Pakistan was either unable or unwilling to apprehend or expel bin Laden. The U.S. viewed this failure

by Pakistan to discharge its neutral obligations as the basis for using armed force on Pakistani territory without Pakistani permission.

In conclusion, the state practice of the United States in the conflict with al Qaeda appears to rely on the application of neutrality law principles in determining the boundaries of the battlefield. This is borne out by the way in which the U.S. has employed armed drones, which are exclusively tools of armed conflict, in areas outside of “hot battlefields.” When compared with the competing vision of the boundaries of the battlefield offered by the “geographic minimalists” that applies the Tadic factors to transnational armed conflicts, it becomes clear that relying upon neutrality law principles for determining the scope of transnational armed conflicts is more in keeping with the core principles of IHL.

between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”).

5 Ex parte Milligan, 71 U.S. 2, 4 (1866) (requiring that even during time of rebellion civilian courts be utilized instead of military commissions in geographical areas where the courts were functioning).

6 See Geoffrey S. Corn & Eric Talbot Jensen, Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations, 42 ISR. L. REV. 46, 50 (2009) (setting out the need for the law of armed conflict to evolve to address the “emerging category” of “transnational armed conflict”).

7 See generally NILS MELZER, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW, 90 INT’L REV. RED CROSS 991, 997 (2009), available at http:// www.icrc.org/eng/assets/files/ other/irrc-872-reports-documents. pdf [hereinafter INTERPRETIVE GUIDANCE]. It should be noted that the ICRC document does not have the force of law and can only become customary international law

if its parameters are accepted by a number of states. Because military reaction to the Interpretive Guidance has contended that the definitions offered are too narrow (i.e., that the ICRC considers that fewer people and fewer actions constitute direct participation in hostilities than the military might), the Interpretive Guidance should be viewed as a baseline description of behavior that inarguably constitutes direct participation in hostilities while the actual state of the law remains less clear. See, e.g., W. Hays Parks, Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect, 42 N.Y.U. INT’L L. & POL. 769 (2010) (criticizing the ICRC’s approach to direct participation in hostilities in Part IX of the Interpretive Guidance).

8 INTERPRETIVE GUIDANCE at 997.

9 INTERPRETIVE GUIDANCE at 99396, 1031-33.

See Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land arts. 1–5, Oct. 18, 1907, 36 Stat. 2310 [hereinafter Hague V] (establishing the inviolate nature of neutral territory for belligerents).

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