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2014
The Center for Democratic Governance and Rule of Law’s first visiting fellow, Xhafer Tahiri (see page 18)
A publication of the Claude W. Pettit College of Law
Message from the Dean
My first year as dean of the Pettit College of Law has focused on building relationships. I’ve become acquainted with our students, faculty, and staff by working closely with them daily, and I’ve spent time traveling to communities both large and small to meet with our successful alumni. In the course of this year, I’ve discovered how privileged I am to be associated with this extraordinary law school family, comprised of so many intelligent, kind, supportive, and dedicated individuals. Together, we’ve accomplished a lot this year, but we’ve set even greater goals for the future. Across the country, law schools continue to experience a decline in enrollment, with numbers not seen since the 1970s. ONU has taken steps to help families still recovering from the recession with The Ohio Northern Promise, which lowered tuition rates by 25 percent at the Pettit College of Law for the 2014-15 school year. Students can receive a private legal education – personalized, innovative, and high-impact – at a cost comparable to a public institution. In this issue, you’ll read about a few people and programs that make the Pettit College of Law so extraordinary. You’ll meet two married couples – whom we’ve dubbed “power couples” – with thriving law practices in Georgia and Arizona, respectively. You’ll learn about our new Center for Democratic Governance and Rule of Law, which is positioned to expand the influence of our one-of-a-kind LLM program to all corners of the world. And you’ll be pleased to discover that our clinical placement program continues to prepare students for the “real world” with unrivaled opportunities for practical experience. I hope you enjoy this issue, and I welcome your comments and suggestions. You can reach me at r-bales@onu.edu or 419-772-2205, or “friend” me on Facebook. Here’s wishing you a safe and relaxing rest of the year. Regards,
Richard Bales Dean, College 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 annually 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. Immediate past president Jerome L. Skinner, JD ’79 Cincinnati, Ohio
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Secretary Suzanne F. Garwood, JD ’97 Washington, D.C. Treasurer Hon. 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. John M. Cotner, BA ’67, JD ’70 Troy, Ohio
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13-15 CONTENTS
Mitchell Falber, JD ’80 New York, N.Y. Neil Freund, JD ’70 Dayton, OH John H. Genovese, JD ’79 Miami, Fla. W. Michael Gradisek, JD ’93 Philadelphia, Pa.
4-5 6-9 8-9 10-12 13-15 16-17 18-19 20 21-23 24-25 26-27 28-29 30-31 32-35
2014 Commencement
Johnnie L. Johnson III, JD ’70 Memphis, Tenn.
Power Couples
Justin F. Madden, JD ’93 Russell, Ohio
Love and Law
Hon. Mark L. Pietrykowski, JD ’79 Toledo, Ohio
Destined to Make a Difference A Placement for Every Student High-Impact Learning Center for Democratic Governance and Rule of Law
Grey D. Pratt, JD ’93 Pittsburgh, Pa. James W. Pry, JD ’70 Bucyrus, Ohio Francis “Trip” Riley III, JD ’94 Princeton, N.J.
Writing Across the Curriculum
Victoria U. Maisch Rumer, JD ’76, JD ’94 Lima, Ohio
American “Degeneracy” and the Origins of the American Revolution
Hon. Jessica E. Price Smith, JD ’97 Cleveland, Ohio
2013-14 Year in Review
Jeffrey S. Snell, JD ’07 Chicago, Ill.
Faculty News
Katrina M. Thompson, BA ’05, JD ’08 Columbus, OH
College of Law Retirements The Impact of Giving Campaigning Under the Weight of Copyright
Susan A. Wetzel, JD ’97 Dallas, Texas Philip R. Wiese, JD ’96 Akron, Ohio
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2014 Commencement
The Ohio Northern University Pettit College of Law celebrated commencement on May 18, 2014. 92 students received JDs, 19 students received LLMs, and 5 students earned both a JD and an LLM. Combined, this brought the class of 2014 to a total of 106 graduates.
Top criminal defense attorney Benjamin Brafman, ONU Law JD ’74, speaks at commencement He’s represented celebrities like Jay-Z and Sean “Diddy” Combs, mobsters, and political figures, including Dominique Strauss-Kahn (the former head of the International Monetary Fund). Benjamin “Ben” Brafman, JD ’74, is widely recognized as one of the top criminal defense attorneys in the country, and his legal career started at ONU.
Brafman started his career in criminal defense and then worked as an assistant DA in Manhattan before starting his own firm in 1980. Through the years, he’s become well known for winning many high-profile cases, representing celebrities, business leaders, and political figures in complex criminal and civil litigations across the U.S. He is a fellow Brafman, who practices in Manhattan at his in the American College of Trial Lawyers firm Brafman & Associates, returned to his and was named the “Best Criminal Defense Lawyer in New York” by New alma mater to address the 2014 graduates York magazine. Brafman also has been and receive an honorary degree. recognized for outstanding achievement The son of two holocaust survivors, Brafby the New York State Association of man grew up in Brooklyn and Belle Habor, Criminal Defense Lawyers and the New Queens, in a hardworking, humble, and reli- York Council of Defense Lawyers. gious family. He took night classes at Brooklyn College and then accepted a scholarship Brafman and his wife, Lynda, have to attend the Pettit College of Law. Moving two grown children and several to Ada, Ohio, was a huge culture shock for grandchildren. They are members Brafman and his young wife. But Brafman of the local synagogues and support excelled and graduated with distinction. many Jewish charities.
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Genovese has handled many high profile cases during his 30-plus year career. He was co-counsel for the class action shareholders and noteholders in Enron’s Chapter 11 proceeding and related matters. With settlements totaling more than $7.2 billion, it was the largest class action recovery in history. He also represented the defrauded investors in the national Ponzi scheme involving Orlando music producer Lou Pearlman and Scott Rothstein. “Bankruptcy court is full of stories of fraud and intrigue,” he once told the South Florida Legal Guide. “I find real life far more interesting and unbelievable than any novel.”
Honorary degree
John H. Genovese, JD ’79, one of the country’s leading bankruptcy attorneys, also received an honorary degree during commencement. Genovese is a founding shareholder at Genovese, Joblove & Battista P.A., which has Miami and Fort Lauderdale offices and an affiliate office in Caracas, Venezuela. He co-chairs the group’s reorganization and insolvency practice. His areas of legal proficiency include troubled loan workouts, bankruptcy and insurance insolvencies, complex litigation in Bankruptcy and U.S. District Court, and other complex commercial litigation.
Genovese has been a member of the Ohio Northern University Alumni Board since 2010. Additionally, he was appointed to, and served for five years on, the Florida Judicial Nominating Commission, which recommends to Florida’s U.S. senators the nominees for district court judges, U.S. attorneys, and U.S. marshals. He also was elected to the Board of Directors for the Bankruptcy Bar Association for the Southern District of Florida. He received his undergraduate degree from Siena College and also served in the United States Army from 1968 to 1971. Genovese and his wife, Lauren, are the parents to twins. They are both active in their community, supporting numerous charitable organizations.
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Power Couples They became partners in life and law, thanks to ONU. Meet two outstanding power couples with successful law practices. PARAG SHAH AND ELIZABETH GEORGE Shah Law Firm Atlanta, Ga. Parag Shah, JD ’06, and Elizabeth “Liz” George, JD ’06, are rising stars in the Georgia legal community, tackling some of the most visible criminal defense and personal injury cases in the South at their boutique firm in Atlanta, Ga. The formidable husband-and-wife legal team didn’t establish the Shah Law Firm for money or media attention (although they’ve achieved both), but to positively impact people’s lives and to be the masters of their future. “We only take cases where we like the clients and want to help them, and we don’t compromise,” says Liz. “We do absolutely no advertisPg. 6
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ing, and we keep a small caseload of around 40 cases. By doing this, we enjoy our work, can give it 110 percent, and, at the same time, have a great work-life balance that leaves us plenty of time for ourselves and our family.” Parag, the son of a successful entrepreneur, grew up in Arkansas and received his undergraduate degree from Rhodes College in Tennessee. Liz, who spent her childhood in the Pittsburgh area, graduated from Waynesburg University in Waynesburg, Pa. Neither planned to pursue a law career when they started their educational journey. They both came to ONU with the intention of giving law school a try and discovered, somewhat unexpectedly, that the field of law was a great fit. They met each other their first week at ONU during a pickup basketball game in the gym. Liz had her hair pulled back in a ponytail and was dressed comfortably (and colorfully) in a tie-dye shirt, red shorts, and bright yellow
smiley-face socks. The next day, now wearing business attire and sporting a more sophisticated hairdo, Liz invited Parag to sit next to her in class. Parag called his best friend to tell him that law school was going better than expected, because in just two days, he had met two girls who seemed to like him. Only later did he realize that both girls were Liz!
started to help Parag with his expanding client base at the fledgling Shah Law Firm. “It was the right time and the right fit,” she says. “I knew after a year that it was permanent. We are both invested in the business and want the same things for it.”
ONU’s supportive and peaceful campus provided an ideal environment for the couple to grow their relationship and their knowledge of the law. They excelled in their coursework, and Liz graduated with distinction in the top 10 percent of her class. “I had friends at Ivy League law schools who talked about the competitiveness and fighting,” says Parag. “At ONU, the atmosphere was one in which ‘we are all in this together’ and ‘we need to help each other out.’ And we (Liz and I) have continued to have this outlook in our professional careers.” The couple moved south after graduation and married in 2007. They immediately felt at home in Atlanta, which they describe as having all the amenities of a big city with all the comforts of a small town. Parag began his career as a public defender and then worked in a law office as a trial attorney before embarking on his own in 2011. Liz worked her way up to partner at a large firm, representing corporate clients in real estate and mortgage banking litigation. By society’s measure, Liz had reached the pinnacle of success as an attorney. But her prestigious position didn’t lead to happiness. In fact, she felt miserable. She hated the long hours and demanding workload. She felt uninspired and unfulfilled in her work representing corporate interests. She recalls how disheartening it was to get booed in court during the height of the mortgage meltdown when she would announce that she was representing a large mortgage lender or investment bank. With prodding from Parag, Liz quit her job to focus on her passion for running and nutrition. By her own admission, the former track athlete runs “a lot.” In fact, her friends nicknamed her the “urban mountain goat” for her penchant for trail running. To fill her time, Liz
Liz and Parag continue to work hard, but under their own terms. Their caseload consists of about 50 percent personal injury cases and 50 percent criminal defense cases, including drug trafficking, Medicaid fraud, and murder. They’ve represented some well-known clients in cases that attract media attention. Their clients have included 14 former NFL players in the concussion lawsuit, a senator’s son, and a vehicular homicide involving the Georgia governor’s intern. One client Parag represented in a dog-bite case – a producer of the Nancy Grace television show – later invited him to appear on the show. A natural on camera, Parag is now a regular guest star on the show, fielding questions and providing legal commentary on the latest court cases making national headlines. As a legal duo, Parag and Liz complement each other perfectly. Parag enjoys the spotlight; he’s vocal, outgoing, and personable. He gravitates toward networking, client meetings, and court appearances. Liz is more introverted and prefers to work in the office on legal research and document preparation. “It’s just the two of us, so we pretty much do everything top to bottom,” says Liz. They are both committed to exceptional client service. They interview all prospective clients and only represent those clients with whom they feel a connection. They make themselves accessible to clients at every hour of the day or night and become thoroughly invested in each and every case. “It can be emotional and rewarding to be able to help clients through very difficult situations,” says Parag. “We get to know our clients as family. And at the end of the day, we all win or we all lose together.” The couple’s outstanding track record has resulted in many referrals and increasingly complex cases. “That’s the challenging part,” says Parag. “The better you get, the harder your cases become. You put yourself out there as a person who can get results, and you get more pressure to perform.”
And Parag and Liz both hate to lose, not because of pride, but because they feel the full weight of what’s at stake for their clients. “You have to be at the top of your game at all times,” says Parag. “Every person matters, and people’s lives are on the line.” Although work still consumes a big part of their lives, they love the flexibility and independence that comes with having their own firm. Their home is located just a mile from their office, so they can seamlessly blend home and work life. Liz appreciates being able to run whenever she wants, with time to spare for experimenting with new vegetarian and gluten-free recipes. Parag likes coming and going as he pleases. They both give back to the community, volunteering at organizations like Dress for Success and Gandhi Worldwide Education Institute and mentoring young attorneys. In fact, Parag even created a series of pocket-sized reference guides that provide neutral and simplified information on Georgia law. The books are available at www.thegacode.com and are used by students, judges, district attorneys, public defenders, and private attorneys at all levels of practice. “We’ve both learned that you just need to do good for others and do what you feel is right, and the rest will follow,” says Liz. “Honestly, what we’re most proud of is the fact that we’ve stayed true to ourselves and are living life our way.” The Writ 2014
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KHURRAM AND KELSI KARIM Karim Law Scottsdale, Arizona Khurram, JD ’04, and Kelsi Karim, JD ’04, help people from all over the world start new lives in the United States. Their boutique firm in Scottsdale, Ariz., specializes in federal immigration law, including investment, employment, and family-based visa applications, green cards, and citizenship. In a competitive field, they’ve established a reputation as a knowledgeable and compassionate legal team that gets results. “We’ve both lived, worked, and traveled overseas, so we can relate to our clients,” says Kelsi. “We know what it feels like to move to a new country and to adjust to a different culture.”
Love and Law: Meet our newest couples ONU Law has always been more than just a place to learn the law. It’s a place where you become a family, make lasting friendships, and, in some cases, find the love of your life. Meet the law college’s newest couples.
Morgan Neuhoff, JD ’14, and Jared Underberg, JD ’14 Wedding date: Nov. 1, 2014
Morgan met Jared on her first evening in Ada. They struck up a friendship that soon turned into something more. Jared proposed to Morgan in front of the Four Seasons Hotel in Chicago, a place close to Morgan’s heart bePg. Pg. 88
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Khurram grew up in England and received a law degree from the University of Buckingham and became a barrister at the Inns of Court School of Law. His desire to become a barrister, he says, was sparked by a 1980s television show that aired in the UK called “Crown Court.” “I really wanted to wear a white wig,” he says, with a laugh. After working in England for a few years, Khurram came to the U.S. for an LLM from the University of Florida. He decided to stay in the U.S. to practice law, so he needed to obtain a JD. He enrolled at Stetson Law, where he met Kelsi during the first week of orientation. Kelsi entered law school with the encouragement of her parents after obtaining her bachelor’s degree in accounting from the University of South Florida. When she and Khurram met, they both felt an immediate connection. They got engaged after only a few months of dating. While they were happy to have found one another, they were not happy with their choice of law school. The couple researched ONU, and they were impressed by the friendly atmosphere and highly qualified professors. They both applied and were pleasantly surprised to receive a personal phone call from Associate Dean John Christoff inviting them to move north and enroll at the Pettit College of Law.
“ONU turned out to be a great school for us, apart from the weather,” says Kelsi, with a laugh. “We both graduated completely prepared, which I credit to the fact that so many of our professors were practitioners and excellent teachers.” “My brother attended an Ivy League law school, and, from an academic standpoint, my law degree could match his every step of the way,” adds Khurram. The couple have many wonderful memories of their time together at ONU, but the most cherished memory is their wedding day. One blustery day in February, in blizzard-like conditions, they traveled to the courthouse in Kenton, Ohio. And there, surrounded by close law school friends and professors, they said their marriage vows. Professor Nancy Sabol even brought a cake to celebrate the occasion. “It was an intimate ceremony and very memorable,” says Kelsi. After graduation, the couple moved to Arizona, a state they say is perfect for raising a family, with a high standard of living and excellent job opportunities. “And you can’t beat the weather,” adds Kelsi. “It’s sunny here all the time.” They worked as prosecutors and then in private practice before moving to London in 2011 to be near Khurram’s father, who was ill. They returned to their adopted state in 2013 and opened Karim Law. “Immigration law is ideal for us because you can live anywhere and take cases from anywhere,” says Khurram.
cause her grandmother, who had recently passed away, had lived there. The couple’s law school friends threw a surprise engagement party for them upon their return to Ada. “Because of ONU, Jared and I met each other, and we couldn’t be happier,” says Morgan. “If you can make it through law school, live together, and still love each other, just do it!”
on where to go to law school, ONU was a clear choice because of the incredible professors and opportunities to learn, and our personal history with each other in Ada,” says Justine. “One of our favorite memories is having the ladies who work at Northern on Main know exactly who we are. Even when we don’t go there together, they ask how the other is doing.”
Justine Anderson, BA ’11, JD ’14 and Dan Jones, BA ’10, JD ’13 Wedding date: Oct. 10, 2014
Carmen, JD ’14, and Michael Hamper, BA ’11, JD ’14 Wedding date: Aug. 17, 2013
Justine and Dan met when they were both undergraduates at ONU. They discovered they shared an interest in literature, history, travel, music, and dogs. “When deciding
Carmen and Michael met during orientation. Seated at the same table during the L-1 dinner, they hit it off so well that someone asked how long they had been dating! “We
“My brother attended an Ivy League law school, and, from an academic standpoint, my law degree could match his every step of the way,” adds Khurram.
Khurram Karim, JD ’04, receives his law degree from the late Margaret Thatcher.
enjoyed eating dinner at The Inn and going to midnight premieres at the Ada Theatre,” says Michael. “Law school is much more bearable with a great friend and study partner at your side, and when that person is your spouse, it’s even better.”
Drew Pugsley, JD ’14, and Justin MacCanon, JD ’14 Wedding date: May 2015 (tentative) Drew and Justin met before starting law school, connecting over their shared dream of becoming attorneys. They enjoyed spending time with each other and with mutual friends, even when time was scarce due to their busy schedules. “Law school is very
Because of its close proximity to Mexico, Arizona is teaming with attorneys who specialize in immigration law. Yet unlike most attorneys, Khurram and Kelsi don’t work on deportation or illegal entry cases. Their clients tend to be wealthy individuals with specialized skills in business, medicine, engineering, or technology who come to the U.S. for business or career purposes. They also serve corporate clients needing highly skilled workers and clients looking to bring a spouse (including many through arranged marriages) or other family members to the U.S. “We really love our clients. They are intelligent and interesting and come from all parts of the world,” says Kelsi. “Many of them end up becoming our friends. We go out to dinner together. They send us holiday cards and have even brought our children gifts from their home countries.” The Karims inspire friendship and gratitude because they do exceptional work. Their clients appreciate the fact that they are honest and ethical and leave no stone unturned. They research each case thoroughly and account for minute details. “We are just really careful about each case,” says Kelsi. Immigration law is a complex and dynamic field that requires a meticulous approach. It’s a field where 176,000 H-1B visas are filed every year, but only 65,000 are issued, where federal forms and laws are constantly changing, and where every foreign embassy or consulate has different rules and policies. “It’s not a field you can dabble in,” says Khurram. “Either you’re an immigration lawyer, or you’re not.”
demanding, and it can strain any relationship,” says Justin. “Things have not always been easy, but we figured out the first year of school what we needed in our lives to make our relationship work. We worked just as hard in school as we did in our relationship. As a result, ONU actually helped bring us closer together as a couple.”
Kelli Pollock, JD ’14, and Ryan Regel, JD ’13 Wedding date: Oct. 4, 2014
Ryan was assigned to be Kelli’s tour guide during her first day of orientation. But Kelli’s attempts to strike up a conversation with the shy and reserved upperclassman failed.
A missed deadline or overlooked detail can prove disastrous. In fact, Karim Law takes on many immigration cases that were botched by another attorney or by the clients themselves. In a recent case, they helped an individual whose green card was revoked after 25 years because of a technical error. To stay on the top of their games, Khurram and Kelsi regularly attend meetings sponsored by the United States Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security, and they are active in the American Immigration Lawyers Association (AILA). In the future, the Karims plan to open satellite offices in California and London. “Ideally, we’d like to travel the world and promote our firm,” says Kelsi. While they envision modest growth, they want their firm to stay relatively small and familyoriented. Because in the end, they both agree that family comes first. They feel extremely fortunate to have forged a career together that enables them to spend quality time with their two small children (ages 9 and 2), while helping other families build lives in the U.S. They both also volunteer time at their son’s school and for several local charities. Kelsi recalled a recent case they worked on where their client was a young couple from India immigrating to the U.S. The wife was nine months pregnant. “We had a final meeting in the morning, and they were thrilled to hear that all their paperwork and everything went through,” she says. “That evening, they texted me a picture of their baby, who was just born. How great is that? It’s why we love our work.”
Later, she approached him in the library with a question about a legal topic, and he not only shared his notes with her, but also asked her out. The two have been together ever since, supporting each other through law school and kicking back with bike rides on the Green Monster, lunch dates at the White Bear, and other fun activities. “We had the perfect balance because we both took law school seriously, but never so seriously that we couldn’t have fun,” says Kelli. “There is nothing like having your best friend at your side when you are going through one of the toughest times in your life, and we are thankful for that.”
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Destined to Make a Difference
They are CHANGE-MAKERS, JUSTICE-SEEKERS, DREAMERS, and PUBLIC SERVANTS. Anne Mulhern in the U.S. Coast Guard (left) and receiving her commission from George W. Bush (right).
Ohio Northern University law students come from all walks of life and are uniquely qualified to embrace new challenges. They seek out opportunities to make a difference and are proof that, no matter where you come from, you can be destined for great things. Tara Marks Third-year law student Pittsburgh, Pa. From poverty to public assistant and political advocate Tara Marks had planned to live a comfortable existence in the suburbs as a stay-at-home mom. But her partner shattered her plan the day he abruptly walked out on her and their 8-month-old son. Almost overnight, Marks became a single mom, living in the projects, struggling to make ends meet. It took all her courage to overcome obstacles and create a better future. But she eventually obtained an associate’s degree, bachelor’s degree, and MBA while carving out a career in advocacy. She also met a new man, married, and had two more children. She made it through dark days of hunger and despair. She often skipped meals so that her son would have enough to eat. One day, after fainting from a lack of food, she knew she needed help. She received it from a local organization called Just Harvest, which helped her through the challenging maze of applying for public assistance. This experience changed her life. Pg. 10
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Determined to help other women facing hunger, Marks became a political advocate. She campaigned for politicians who shared her concerns and advocated for organizations like Bread for the World. She even served for two years as the executive director of Just Harvest, the same organization that helped her to get food just a few years earlier. Marks’ competitive nature led her to law school. “I was an excellent lobbyist, but I wasn’t the best in the room,” she says. “When I researched the best, I realized they all had something in common. They were all attorneys.” Originally from Lima, Ohio, Marks was thrilled to be accepted into the Pettit College of Law. Her husband and three children, ages 13, 9, and 5, remain in Pittsburgh, and they visit on weekends. The distance makes for a difficult arrangement, but Marks is committed to graduating. “ONU is not the sink-or-swim environment that I feared law school would be,” she says. “Professors here really care about you, and they want to keep you here.” During her first year of law school, Marks accepted an invitation from Sen. Patty Murray of Washington to testify before the U.S. Senate Budget Committee on the importance of federal assistance programs. “I’m a very vocal and outgoing person, but this was me being raw and exposed on public record,” she says. “It was difficult to re-live my experience (with being hungry) because I still have emotional scars. But it was important to do.” Marks was recently honored to be accepted into the Peggy Browning Fellowship Program. She spent 10 weeks this summer working for the IUE-CWA, an international union for electrical and communication workers in Dayton, Ohio. She plans to become a labor union attorney after graduation. “There’s a great need for strong advocates to support the rights of workers,” she says. “And I’m up for the fight.”
Anne Mulhern Second-year law student Newton, N.J. Veteran, humanitarian, justice-seeker sets sights on Macedonia A self-described “bleeding heart,” Anne Mulhern is driven by a desire to serve. She’s visited children in orphanages, built homes for Habitat for Humanity, tutored disadvantaged children, and been a hospice volunteer – and that’s just in her spare time. “I’m no Mother Teresa,” she jokes. “But I do try to make a difference wherever I go.” Mulhern joined the U.S. Coast Guard (USCG) after high school because of its humanitarian mission and because of her interest in marine protection. She obtained a bachelor’s degree in marine biology and chemistry at the U.S Coast Guard Academy in Connecticut and then served five years of active duty. Intelligent, driven, and hardworking, Mulhern was a good fit in a military branch with the motto “Semper Paratus” (Always Ready). She eagerly took on any new challenge thrown her way. “The USCG is smaller than the NYPD, so there are a lot of jobs and not that many people to take them on,” she says. For two years, Mulhern was stationed on the USCG Cutter RUSH, which was based in Honolulu, Hawaii, but made trips to Alaska during Dungeness crab season. She worked with international governments and the state of Alaska to enforce fishing laws and perform watercraft safety inspections. She then transitioned to the USCG Recruiting Command in Arlington, Va., where she received the Coast Guard Achievement Medal and the Coast Guard Commendation Medal for her outstanding work in recruiting officers and revamping a Junior Leadership Program. When the Deepwater Horizon oil spill happened in 2010, Mulhern volunteered for a month of 12-hour shifts to produce a daily 90page report for Janet Napolitano, the director of Homeland Security at the time. Napolitano used this report in her daily briefings with President Barack Obama. “It was a pretty intense assignment,” Mulhern recalls. After five years of service, Mulhern decided to take a different path. A career in law had always been in the back of her mind because her father and grandfather are both attorneys. She applied to the Pettit College of Law because it is the only law school in the country to offer a concurrent JD/LLM program focused on rule of law, human rights, and economic development. And, ONU offers excellent benefits and support to military veterans.
When she graduates, Mulhern wants to promote justice in other countries. She embraces diversity, having traveled to 34 different countries in her lifetime. While in the Coast Guard, she used her leave time to visit places like Panama, Costa Rica, Vietnam, and Cambodia to sightsee and volunteer. This summer, Mulhern interned with Tetra Tech DPK, one of the largest contractors for grants through USAID, in Macedonia. She received this opportunity after applying and being accepted into their competitive Global Law and Development Fellowship Program. “The close relationships I have with professors and staff at ONU have allowed me to push myself academically and professionally,” she says. Macedonia, which is located in the Balkans, was one country Mulhern had not yet explored. She enjoyed spending three months learning about the country’s culture and judicial system. “My unique background has taught me to be open-minded and to not go into situations thinking I have all the answers,” she says. “My strategy was to sit back and listen and learn.”
Michael Hamper, JD ’14 Jefferson, Ohio Making change by modernizing Ohio’s Constitution Michael Hamper entered the Pettit College of Law with the goal of becoming a public servant. He even aspires to be the governor of Ohio someday. “My main motivation for becoming an attorney and entering politics is to be of service to others,” he says. “I believe my diligence and passion for the truth are good attributes for both these roles.” Hamper spent his spring semester learning about Ohio public law and politics firsthand through an externship with the Ohio Constitutional Modernization Commission (OCMC). This bipartisan commission based in Columbus looks at methods to modernize Ohio’s constitution. Hamper’s role involved attending all commission meetings and researching every successful and failed initiative to amend the constitution that came from the people from 1912 to the present day. “I learned about law, politics, committees, and bargaining,” says Hamper. “I was on the ground floor of the work being done to change the constitution for the next 100 years. When you think about it, there really is no higher impact experience.”
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Sarah Shilvock, JD ’14 Spirit Lake, Iowa Proving that dreams CAN come true Working in immigration law is a dream come true for Sarah Shilvock, who loves a challenge. She applied for a position in the highly competitive Attorney General Honors Program and was thrilled to be named a judicial law clerk for the Office of the Chief Immigration Judge. After graduating in May, she began work at the federal immigration court in Detroit. Shilvock credits her strong academic record and her diverse experiences at ONU, which included Ohio Northern University Law Review, Moot Court, and an externship with a state judge, for enabling her to stand out from the pool of highly qualified applicants. “The culmination of these experiences taught me about the law, the important role of attorneys in our society, and how to achieve success with hard work and perseverance,” she says.
Oyesanmi Alonge, JD ’14 Ikere Ekiti, Nigeria Promoting public service, here and abroad
Early in his life, Oye Alonge looked injustice in the face, and it made him determined to spend his life combating it. Alonge grew up in Nigeria, a male-dominated society struggling to promote fair practices. In addition to crimes like wife battering, one common injustice occurs when the extended family of a deceased male seizes all his property and goods, leaving his widow and children penniless. Alonge’s father, a traditional ruler and customary law judge, worked tirelessly to halt corruption and to support the rights of women and children. Alonge often worked alongside him, drafting letters, attending court proceedings, and taking notes. “It shaped who I am,” he says. “His work had a meaningful impact on people’s lives. Without his rulings, there are children who would not have gone to school, or who would have died of malnutrition or resorted to crime. My father told me to always stand for truth and justice.” Alonge received his undergraduate degree from Adekunle Ajasin University in Nigeria, and then came to the U.S. in 2008 to attend Duke University for a master’s degree in liberal studies. He enrolled at ONU because of its concurrent JD/LLM program and its reputation for providing a personalized education. He has forged close relationships with his ONU professors who have supported his career goals by arranging unique educational experiences for him.
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In summer 2012, Alonge interned at the World Bank in Washington, D.C., where he helped investigate and prosecute fraud and corruption in bank-funded projects in Bangladesh, Liberia, and Sierra Leone. While there, he networked with professionals, attended training programs, and visited other government agencies. “This experience made me realize that I was becoming a unique brand by virtue of my education at ONU,” he says. “This gave me great confidence.” The following summer, he traveled to Nairobi for an internship with Transparency International Kenya, where he helped draft anticorruption legislation and a new constitution, code of ethics, and membership guidelines for the Kenya Chapter of the African Parliamentarians Against Corruption. He also traveled across the country to deliver anticorruption lectures and training to public officials. In addition, Alonge was honored to be named the symposium editor of the Ohio Northern University Law Review, the student editor of the American Bar Association Section of International Law’s awardwinning newsletter, and the editor-in-chief of the Midwest Journal of Law & Policy, which is the annual journal of the National Black Law Students Association, Midwest Region. Alonge also spent a spring semester interning at the Lima City Prosecutor’s Office, an experience that helped him to build his communication and litigation skills. “As a non-native speaker of English, oral communication will be the most challenging part of my career as a lawyer in the U.S.,” he says. “This internship gave me the chance to experiment on ways to achieve effective oral communication, especially in the courtroom setting.” After graduation, Alonge will join the Ohio Attorney General’s Office in Columbus as an assistant attorney general. “I would like to build a career in public service,” he says. “I am looking forward to my first day in court representing the state of Ohio as an attorney.”
Emily Martin Second-year law student Ada, Ohio Exploring opportunities from Ada, Ohio, to Washington, D.C. Emily Martin wants to be a prosecutor who puts criminals behind bars. “I have always been fascinated and passionate about the law, and I love constructing and presenting arguments,” she says. But Martin also wants to keep her options open. That’s why she was energized about spending six weeks in Washington, D.C., last summer working for the National Association of Attorney Generals (NAAG). The externship was part of the Bill Brown Scholarship, a full-tuition scholarship she received from ONU. “I’ve focused myself solely on criminal law, so I was eager to get insight into other opportunities out there,” she says. “I’m now incredibly excited about the new experiences in store for me.”
A Placement for Every
Student
Our Unique Approach:
Availability, flexibility, and student-centered oversight are hallmarks of ONU’s legal clinics. Dr. Bruce French, one of the most senior faculty members in the Pettit College of Law before his retirement this summer, has helped countless law students find their paths in life. French ran the law college’s Clinical Placement Program, which gives students access to a wide range of practical, hands-on experiences in the field. These experiences build skills and confidence, make students more marketable in a tight job market, and help them to discover which field of law is the best fit, he says. Availability, flexibility, and student-centered oversight are hallmarks of ONU’s successful program, which has received national recognition. The March 2014 issue of preLaw magazine ranked ONU as a top law school for practical training and experiential learning. Availability refers to the vast number of highquality clinics available. Each semester, ONU has a 100 percent placement rate for legal clinics, with opportunities with federal, state, and county judges; city and county prosecutors and defenders; city law directors; public schools; nonprofit organizations; and more, all across the state.
Students don’t have to deal with lengthy waiting lists or jump through hoops to land clinical experiences. Instead, they meet with staff members who take the time to truly understand their objectives, and then they are placed in a clinic that matches their professional and personal goals, says French. “Our students are dedicated to becoming fine attorneys, and they possess good ethical precepts,” he explains. “This reputation makes it easy for us to place our students.” The ONU Legal Clinic, in Lima, Ohio, is a popular clinic option because students get to represent real clients under the watchful guidance of ONU staff. The inhouse civil and transactional clinics serve people with limited incomes in domestic relations and general civil practice cases. Students also do work for local nonprofit organizations such as Without Walls, an agency that combats homelessness.
The Clinical Placement Program strives to provide students with maximum flexibility. Students can choose the number of credit hours for their clinic, depending on their availability and class schedule. And they can participate in multiple clinics if they want to build their résumé or if they are undecided on a future career direction. Geographic location is another area of flexibility, says French.
“While most of our students choose to do a clinic in Northwest Ohio, we have clinic options all across the state and country,” he explains. “We’ve had students engage in clinics in Michigan, Indiana, Virginia, Florida, Arizona, Washington, New York, and other states.” The Writ 2014 The Writ 2014
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No matter where a clinic takes place, ONU makes sure that each student receives competent supervision and oversight. “We don’t hold anyone’s hand. We throw them in the pond, because that is part of the learning process,” says French. “But we don’t let anyone drown. We do make sure that each student has a positive learning experience.” To accomplish this goal, staff in the Clinical Placement Office have one-on-one meetings with each student, and they visit each and every clinic site to meet with the student’s direct supervisor. French recalls visiting with a judge in Richmond, Va., who was extremely impressed that someone from ONU would visit when the local law schools never sent
a university representative to oversee their law students. “We care about our students and want to make sure the clinic site will provide the right opportunities,” French says. “We believe that personal connection is important.” French appreciates the transformative nature of practical, hands-on learning. He’s witnessed students grow in confidence, learn new skills, build a network, discover what they’re passionate about, and land their dream job, all because of their clinical placement experiences. “I loved getting up in the morning and going to work,” French says. “And I wanted our stu-
dents to achieve that same level of happiness and satisfaction in their careers.” “I have personally heard from so many recent and past graduates who have told me that they feel their legal education at ONU has prepared them so well for their careers,” says Cheryl Kitchen, retired director of law alumni and career services. “They work alongside students and graduates from schools considered to be ‘elite’ but find themselves guiding those students or graduates using the practical skills they learned during their first year at ONU Law. They feel both the educational and the clinical experiences have given them the ability to hit the ground running in their first jobs.”
Student Experiences: Putting legal theory to work during law school
Client interaction in real-life settings is key to ONU’s legal clinic experiences Rebecca Cronauer, JD ’14 Ebensburg, Pa.
Her experience: The clinic was an amazing learning experience. Having my own clients, as a law student, was both exhilarating and terrifying. At first, I felt like I was jumping into the deep end of a pool. They don’t teach you how to be a lawyer in law school; they teach you how to understand and interpret the law. At the clinic, I gained invaluable experience learning how to manage time, the appropriate steps to take depending on the scenario, the intricacies of appearing in court, how to deal with difficult clients, and the list could go on and on. Best moment: The most enjoyable part of the clinic was the clients. Sometimes it is easy to forget that the whole reason there is a need for lawyers is to represent people who need help. I can say that, throughout this experience, interacting with my clients was a real pleasure. It was incredibly rewarding to come to the aid of someone and find a way to alleviate his or her problem.
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Impact: While many law students have an externship or internship experience, it is unique for a law student to have managed his or her own clients. Working at this clinic sends me out into the job market a little more trained than the average entry-level attorney. When I go into an interview with a prospective employer, I can tell them I have written motions, represented clients in divorce hearings, and negotiated settlements.
Rebecca Cronauer
Marissa Lawhun, JD ’14 Draper, Utah
Her experience: The clinic was a wonderful place to work. I learned how to solve problems while having a support system around me to lean on. I utilized the tools I had learned throughout my time at law school. One case required me to use the knowledge I had obtained from Civil Procedure, Domestic Relations, and Estates, Wills and Trusts, simultaneously. Marissa Lawhun
Best moment: Civil trials are rare in federal court, so I was pleasantly surprised to encounter two of them during my judicial externship. However, Judge Rice mediated both cases the day of trial and kept them from court. It was remarkable to watch how the judge, through his many years of experience, could read people. He essentially brought the parties to an agreement when there were hundreds of thousands – even millions – of dollars at stake. Impact: Rather than sitting in a classroom for three hours a week listening to lectures and doing assigned readings, I was out in the real world doing lawyerly work while actually making a difference in people’s lives. Instead of taking a test on material I may or may not remember, I will always remember my experiences at my externships. Ultimately, growing and learning from these experiences are the key to becoming the best lawyer I can be. Ethan Welch
Best moment: Having a client say, “Thank you so much; you are a life saver.” Being there for clients who were struggling through an emotionally charged and tumultuous time was an incredibly rewarding experience. Impact: I will not be terrified if a partner asks me to do something that I have no idea how to do. Because of the clinic, I know which tools to use to find an answer and complete the task assigned. Additionally, the clinic taught me the value of collaboration with others and how to communicate with clients, opposing counsels, judges, and peers.
Ethan Welch, JD ’14 Rawson, Ohio
His experience: I have had three externships during my time at ONU. I completed two judicial externships, one with Judge Walter H. Rice in the U.S. District Court Southern District of Ohio in Dayton, and one with Judge Russell B. Wiseman in the Common Pleas Court of Crawford County, Ohio. I also worked in the ONU Legal Clinic for three credit hours. Every place I went, the people were incredibly nice and very professional. Each courtroom staff had a family environment, meaning they genuinely liked each other and invited me in with open arms.
Richard Manilla, JD ’14 Hermitage, Pa.
His experience: ONU provided me with the opportunity to experience three externships. My first was a judicial externship with Judge Gregory Frost of the U.S. Federal District Court of Ohio, Southern District in Columbus, where most of my duties were research and writing while also discussing specific issues relating to the judge’s docket. My second was spent at the ONU Legal Clinic, which really personalized the practice of law because interns were expected to manage and direct their cases as if they were practicing themselves. My third and final externship was spent at the Hardin County Prosecutor’s Office. At this externship, I had the chance to work on criminal and child protective services matters and to present these matters before the court. Best moment: During my time at the ONU Legal Clinic, one client of mine was seeking custody of his grandson. His wife had just passed away, and she had sole custody over the child. To make matters more difficult, most of the child’s expenses where covered through the grandmother’s social security benefits. My client needed to file his wife’s probate paperwork in order to have his grandson’s benefits distributed through his benefits. It was difficult going through the probate paperwork with the client because it was clear with each finished line that he was missing his wife even more. We made it through the paperwork and ended up speaking about what it was like to grow old with the love of his life. As difficult
as it was to get through the paperwork, the client left the office with a smile because he could share his personal issues with someone. I learned that most clients really just want to be heard. Impact: My clinical placements at ONU have defined my experience at law school. Clinical work has the unique ability to take the theory learned in law school and make it practical.
ONU’s clinical programs have taught me the important lesson that the practice of law is more than just research, more than just writing, and even more than winning a case; the practice of law is about helping your client feel whole. It is about finding a resolution to a dispute that meets your client’s present concerns without hindering potential future interests. I could not imagine a good legal education without the insight I have gained through my clinical experience.
Richard Manilla
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High-Impact Learning In the heart of winter, ONU law students have the chance to escape the confines of the traditional classroom and embark on a three-week journey of “high-impact” learning that can include travel, networking, and hands-on experience.
Matching DNA. Students taking the
January Term course “Forensic Evidence” not only learn about traditional, case-based examination of scientific evidence, but also receive hands-on experience in a lab, taking DNA samples from a mock crime scene and matching them to DNA samples in the lab. “Experiencing how DNA testing is actually done will assist me in knowing how to effectively question expert witnesses in my future career as a public defender,” says Laura Waymire, a second-year law student from Ansonia, Ohio.
Visiting the killing fields. Nineteen law students and professor Kevin Hill spent 10 days traveling through Thailand and Cambodia for the January Term course “Law, Culture, and Genocide in Southeast Asia.” Students learned about the Cambodian genocide, the subsequent human rights tribunals, and the country’s attempts to recover from the tragedy. Students explored local schools, ruins, and killing fields during their trip. Pg. Pg. 16 16
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Dinner and a trial. Sixteen seasoned attorneys joined ONU law students taking the January Term course “Legal Problem Solving and Analysis” for dinner to offer advice and encouragement. The judiciary, big firms, medium-sized firms, county-seat practices, solo practitioners, state government, nonprofits, and county prosecution offices were all represented. The Practitioners Dinner is only one aspect of this intensive course, which focuses on improving students’ legal reasoning and writing and introducing them to the legal profession. Another component of the course brings the Third District Court of Appeals for Ohio to the law college. Students read the briefs ahead of time and then watch two oral arguments in actual cases. They have a chance to talk to the judges and lawyers after the oral argument before writing a memorandum.
Aiding post-conflict states.
A visiting scholar from Kosovo taught the January Term course “International Intervention and Statebuilding,” which focused on the role of the international community in post-conflict states. Xhafer Tahiri, who recently served as a member of the Republic of Kosovo’s Parliament, led students in exploring humanitarian intervention in sovereign states and analyzing the approach to rebuilding post-conflict states by international organizations and other countries. International and concurrent LLM students participated in the course. “Most of our international students come from post-conflict states, so their appreciation for the subject matter was quite high,” says professor Howard Fenton, former director of the LLM program.
JAG experience. The Law of War
seminar takes ONU law students to the Judge Advocate General (JAG) School in Charlottesville, Va., where they spend several days attending Operational Law classes with Army JAG officers. Students are challenged to consider the real-world impact of the Geneva Conventions, rules of engagement, and the irregular warfare that has characterized the conflict with al Qaeda. “No other law school in the country offers this degree of practical insight into how the law impacts life-and-death decisions that are made every day in places like Afghanistan,” says professor Mike Lewis, who teaches the January Term course. The The Writ Writ 2014 2014
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Building a Just World
ONU’s new Center for Democratic Governance and Rule of Law
Visiting fellow Xhafer Tahiri, center, with ONU international LLM students.
Across the globe, from Afghanistan to Albania, Uganda to Uzbekistan, graduates of Ohio Northern University’s LLM in Democratic Governance and Rule of Law program are building a more just world. Through their efforts to strengthen the rule of law in fledgling democracies, they are not only making life better for scores of individuals and families, but also changing the course of history, says David Pimentel, visiting associate professor of law and interim director of the LLM program. ONU has now raised the profile of its nationally recognized and impactful LLM program to an even higher level with the formation of the Center for Democratic Governance and Rule of Law (DGROL). Leveraging the existing resources of the LLM program, the College of Law and the University, the Center for DGROL is promoting awareness, understanding and scholarship on democratic governance and rule of law. The Center also seeks grants and contracts for, and engages faculty, students and graduates in, “boots on the ground” projects in hot spots throughout the world.
ONU later added the concurrent JD/LLM program – the only one of its kind in the country – to allow American law students interested in working in the rule of law field to receive the training and experience that would prepare them for opportunities in justice and democracy reform as well. “People sometimes question why we emphasize rule of law instead of human rights,” says Fenton. “In short, a functional legal system is the key to economic development. No one wants to do business in a country that doesn’t uphold property rights or legal contracts. And when people are hungry, they are often more interested in a job than in, for example, free speech. Rule of law comes first, and it can then become the vehicle for human rights protections and enforcement.”
ONU’s LLM program, which launched in 2006, has graduated more than 75 students who live and work in 33 countries around the world. Graduates include Austin B. Msowoya, LLM ’08 (Malawi), deputy chairperson at the Industrial Relations Court of Malawi; Valeza Oruqi, LLM ’09 (Kosovo), foreign service ONU’s LLM program is highly regarded for its academic rigor and strength of purpose. The officer for the Republic of Kosovo Embassy in Pettit College of Law didn’t develop the LLM program to fill seats with wealthy international Brussels, Belgium; Ekaterine Popkhadze, students, unlike many institutions, says Pimentel. “We started this program because we believe it can make a difference in the world,” he explains. “Not because it helps our bottom line.” LLM ’10 (Georgia), former executive director of the Georgia Young Lawyers’ Association and 2014 fellow of the National Endowment Designed for lawyers living in troubled areas of the world – countries transitioning from war to for Democracy; Jinkee de Ocampo Bantug, peace, former Communist states emerging from repression, and developing nations struggling economically and politically – ONU’s LLM program trains the lawyers in the principles and prac- LLM ’11 (Philippines), division chief in the Legal Department of the Philippine National tice of justice and political sector reform. According to Howard Fenton, the founding director of the LLM program and current director of the Center, the goal is to equip students with the skills, Oil Company and adjunct professor at De la Salle University School of Law; Irakli Khorknowledge and inspiration they need to return home and bring about change. Fenton says that the law school requires them to commit to returning home and continuing to work in the public baladze, LLM ’11 (Georgia), commissioner of the Central Election Commission and parliasector as a condition of their admission and scholarship assistance. mentary secretary of the Republican Party of
“We in higher education are often accused of living in an Ivory Tower and writing scholarly papers that no one reads,” says Pimentel. “The Center for DGROL is the opposite of that; it’s about having an impact in the real world.”
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Georgia; and Khalid Ahmad, LLM ’13 (Afghanistan), child protection officer with the United Nations Children’s Fund (UNICEF). The new Center for DGROL builds on the LLM program’s existing strengths and positions it for growth, says Pimentel. “The Center allows us to capitalize on the expertise of our faculty and our network of alumni to obtain contracts and grants for projects in the field,” he adds. Pimentel, the Center’s first director, epitomizes the diversity and experience of ONU’s LLM faculty, all of whom have impressive backgrounds in rule of law. He has worked for a United Nations war crimes tribunal and managed the rule of law portfolio in South Sudan for the UN mission there. With more than 12 years experience in the federal judiciary, he also has led court reform projects in Romania and in Bosnia and Herzegovina. The Center for DGROL has already collaborated as a potential subcontractor with AMEX International Inc., an organization that was recently awarded an indefinite quantity contract (IQC) from the U.S. Agency for International Development (USAID) for rule of law projects. As projects arise, ONU can now submit proposals with AMEX to provide expertise. “We have submitted a proposal to conduct a rule of law assessment in Albania under the IQC and a separate proposal to the State Department’s International Narcotics and Law Enforcement Bureau to conduct trainings in rule of law implementation around the world,” says Fenton. “We plan to monitor projects closely to find good fits.” The Center for DGROL puts ONU in a competitive position to receive grants and subcontracts from AMEX and other contractors that work on USAID projects. When ONU is awarded a project, it will provide exciting externship opportunities for LLM students as well as consulting opportunities for faculty and graduates. Students will work alongside ONU faculty in the field, gaining hands-on experience and developing a network of contacts. “American students can have a difficult time breaking into this field,” says Pimentel. “An externship gives them a leg up and opens doors.” Pimentel also believes the Center for DGROL will shine the spotlight on ONU’s outstanding LLM program. “The Center will spread our reputation and bring more visibility and more students to our program from around the world.”
CENTER HOSTS SPECIAL EVENTS
The Center for DGROL not only sends ONU experts out into the world, but also brings world experts to ONU. To kick off the Center’s launch, several special events took place:
VISITING FELLOW
The Center hosted its first visiting fellow, Xhafer Tahiri, from Kosovo, to teach a January-term class on “State Building and the Constitution.” Tahiri, a former member of the law faculty at the University of Prishtina, recently stepped down as head of the Department for Legal and International Affairs in the Office of the President of the Republic of Kosovo.
Crisis in the Ukraine panel discussion.
CRISIS IN THE UKRAINE
A panel discussion on “The Crisis in Ukraine: What is Happening and What Does it Mean?” took place in March. A four-member panel discussed the recent developments in Ukraine and analyzed its implication for the region and the impact between Russia and the rest of the world. The panel consisted of Galyna Kornivenko, a Ukrainian citizen and civic activist; Perry Bush, a professor of history at Bluffton University and a Fulbright Scholar who taught in Ukraine and traveled extensively in the region; Howard Fenton, then-LLM Director who has consulted on law reform efforts in Ukraine since 1996; and Michael Loughlin, an ONU professor of history who has expertise in modern European history and has visited Ukraine numerous times.
ACCLAIMED AUTHOR
Rachel Kleinfeld, author of the highlyinfluential book Advancing Rule of Law Abroad: Next Generation Reform (Carnegie Endowment for International Peace 2012), spoke and met with LLM students in the law school’s Rule of Law seminars in April.
20 ANNIVERSARY OF THE RWANDA GENOCIDE
A screening of the critically acclaimed movie Hotel Rwanda and a panel discussion were held in April to mark the 20th anniversary of the genocide in Rwanda. The panel discussion included Jean-Marie Kamatali, an assistant professor of law who served as
Rachel Kleinfeld meets with LLM students.
Former U.S. ambassador to Rwanda, David Rawson.
the dean of the only law school in Rwanda after the 1994 genocide; David Rawson, a former U.S. ambassador to Rwanda; Brian Anderson, an ONU reference librarian and assistant professor who served as a legal advisor to the chief justice of the Supreme Court of Rwanda; and David Pimentel, then-director of the Center for DGROL and visiting associate professor of law who spent four years as chief of court management at the UN’s International Criminal Tribunal for the former Yugoslavia, where he collaborated closely with his counterparts at the ICTY’s “sister” court, the International Criminal Tribunal for Rwanda.
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Writing Across the Curriculum:
Proficient writers equal proficient attorneys. Among all the skills that top-notch attorneys possess, writing ranks near the top. “The better writer you are, the better you are going to perform on the bar exam, and the better attorney you will be,” says Nancy Sabol, director of academic support and associate professor of law. In the 2013-14 academic year, the Pettit College of Law launched a new initiative called “Writing Across the Curriculum,” which is designed to build the foundational writing skills expected of proficient attorneys. Instead of relegating legal research and writing to a single course, the new initiative incorporates legal writing into almost every first-year course.
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“The goal is to have students develop the skill early on and to practice it often,” explains Bryan Ward, associate dean of the law college. First-year students arrive on campus with a wide range of writing skills and backgrounds. While most know how to write an effective term paper, few are familiar with the technical, formal, and persuasive writing style of the legal field. The new program requires that every student complete smaller writing assignments in multiple first-year classes at various times throughout the semester. Those students who need additional assistance with their analysis
and writing must re-write the assignments to achieve a satisfactory rating. They receive individualized instruction from their professors and, in some cases, guidance from the assistant director of academic support, during the re-write process.
“It enables us to identify those students who need help early on instead of waiting until after the final exam,” says Sabol. “We can intervene and put them on the right track for the rest of their law school career.” According to Ward, Writing Across the Curriculum is an innovative program that the Pettit College of Law is uniquely positioned to implement because of its personalized approach and small class sizes. “It is a laborintensive initiative, so law schools with large classes couldn’t do it,” he explains. “Our professors recognize the merit of doing this, and they are invested in helping our students succeed.”
AMERICAN “DEGENERACY” AND THE ORIGINS OF
THE AMERICAN REVOLUTION Liam O’Melinn*
The stamp riots in New York.
(In the course of conducting research in colonial American history, I came across two seemingly unrelated occurrences. First, when English colonists touched down in America, beginning early in the 17th century, they insisted with a vehemence that seemed to me to border on hysteria that they would not be treated as a servile class. Next, in doing research on English colonial policy regarding Irish natives in the 16th and 17th centuries, I began to see a connection between an imperial disregard for English colonists and later treatment of American colonists as inferior Englishmen. The seemingly hysterical reactions of Americans in the 1760s and 1770s to imperial measures, such as the Stamp Act, suddenly made sense – colonists were being subjected to a longstanding policy of consigning colonists to a permanent imperial lower class. What follows is an adaptation of some portions of a longer article I have written on how imperial denigration of colonists led to the American Revolution.)
American Degeneracy, European Theory, and British Imperial Policy
Equality did not have many champions before the American Revolution, and the European fondness for inequality was demonstrated in the dim view that many continental Europeans took of Americans. It is well known that 18th-century continental European scientists asserted that America was a degenerate land, that animals were smaller in America than in Europe, and even that Europeans who had migrated to America had actually degenerated.1 The philosophe Abbé Corneille de Pauw wrote in
1768 that America was “so ill favored by nature that all it contains is either degenerate or monstrous,” and he denounced Americans as “degenerate species of the human race, cowardly, impotent, without physical strength, without vitality, without elevation of mind.”2 The Abbé Raynal agreed, asserting that America had not produced a single man of genius, that the Indians were “a species of men degraded and degenerated,” and that colonists “had visibly degenerated” since migrating to the New World.3 The Comte de Buffon, a notable French naturalist, echoed the charge that American species were degenerate, and he belittled the natives, writing that “their heart is frozen, their society cold, their empire cruel.” 4
Yet it has scarcely been noticed that the English also launched an attack on American colonists as degenerates,5 an assault that was far more devastating than anything the continental Europeans could muster. As a result, the vehement colonial reactions to British measures premised on American inferiority have typically been regarded by modern observers as either hysterical or cynical.6 Early Americans did not have the luxury of ignoring the assault that was being made on them, and they strenuously rejected the biological, intellectual, and constitutional implications of the degeneracy theory as propounded both by Europeans and Englishmen. Benjamin Franklin7 – who, as Buffon The Writ 2014
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later admitted, taught European philosophers “the art of governing the thunder”8 – John Adams,9 St. John de Crèvecoeur,10 and Thomas Jefferson all denounced the European degeneracy theory. Jefferson, its most determined opponent, countered the biological claim that American species were smaller than their European counterparts by providing Buffon with the skin and antlers of a moose;11 his Notes on the State of Virginia,12 first printed privately in France in 1784, was an extended scientific attempt to disprove the degeneracy theory. In addition to making extensive observations about nature, the Notes answered Raynal’s charge of American intellectual inferiority by citing the warrior George Washington, the scientist and philosopher Benjamin Franklin, and the astronomer David Rittenhouse as examples of American geniuses. 13 Jefferson was also responsible for the most eloquent constitutional response to the degeneracy theory advanced by the English: “We hold these truths to be self evident, that all men are created equal.” The revulsion prompted by the degeneracy theory continued to inspire the constitutional vision of Americans long after the war was over; referring explicitly to de Pauw’s Recherches Philosophique, The Federalist Papers ridiculed those who “have gravely asserted that all animals, and with them the human species, degenerate in America – that even dogs cease to bark after having breathed awhile in our atmosphere.”14 The Federalist went on to reject the constitutional implications of the critique and to endorse an alternative analysis of the degeneracy problem.15 Americans were well prepared in the 1780s to deny that they were degenerate Europeans, for American colonists had suffered under the practical application of the degeneracy theory for many years before the Revolution. British imperial policy had long been motivated by the view that colonists were not true Britons, and Englishmen had come up with a variety of insulting metaphors meant to reveal the degenerate character of the colonist. In fact, compared to what had already transpired between Englishmen and Americans, the debate between the Americans and the French was a quaint philosophical dispute dominated by books and discussions. The English did not dwell at length on the theory of degeneracy, preferring to put it into practice, but through the “imperial insult” they made clear that they considered Pg. 22
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principles, and an unrelenting cruelty.20 Such comparisons revealed that the imperial mind did not feel any real affinity for its own colonists, regarding both colonists and natives simply as instruments of empire.
colonists as servants who must be confined to their lowly status, and with the laws they passed in the 1760s, including the Sugar Act, the Stamp Act, and the Declaratory Act, they showed that they intended to enact this status into law. One telling way to insult the colonists was to denounce them as criminals unfit for political equality with Britons. Thus, a writer styling himself “Pacificus” treated all colonists as descendants of the many British criminals who had been transported to America: “Shall we live to see the spawn of our transports occupy the highest seats in our commonwealth?”16 Lest Pacificus be dismissed as an isolated eccentric, it should be remembered that in 1787 – the year in which the first English edition of Jefferson’s Notes on the State of Virginia appeared17 – Britain founded Australia as a colony exclusively for convicts,18 as if to say that there should be no further misunderstandings that a colony was simply a repository for Britain’s criminal class. There were other ways to dismiss colonists as an inferior breed unfit for the rights of Englishmen. One was to describe them as tenants or servants whose property did not really belong to them, but to Britain. As one commentator put it, “I have always considered the Colonies as the great farms of the public, and the Colonists as our tenants.”19 Another telling assault upon colonial character lay in the comparison which Englishmen sometimes drew between colonists and Indians. Thus the colonists of New England were described as a “crabbed race not unlike their half-brothers, the Indians, for unsocial
These characterizations, which might easily be misunderstood as the crude and lunatic rumblings of a few cranks, were actually expressions of a longstanding belief that colonists were a class of people apart from Englishmen, a lower class of persons designated for imperial service but excluded from imperial governance. To understand the constitutional conflict that led to the American Revolution, it is necessary to understand that Englishmen had held such disparaging views of their colonists for centuries, and they had come to believe that constitutional safeguards were needed to check the degenerate traits of their colonists. What continental Europeans were theorizing about late in the 18th century, the English had been practicing for centuries: From the Middle Ages on Englishmen had observed the problem of colonial degeneracy first in Ireland and then in America, and they had taken steps to combat it as early as the 16th century. Without understanding the origins of the imperial insult, it is easy to miss the significance of the wide variety of insults that the English hurled at the American colonists in the 1760s and 1770s. The degeneracy critique began in England and Ireland and spread to Virginia in the early 17th century. It re-emerged in the middle of the 18th century, when Britain’s victory over France in North America led to a desire to affirm alliances with the Indians and to reduce the rights of the colonists. The English drew a line between colonial and Indian societies, hoping to protect the natives against English colonists and to prevent colonists from “degenerating” into native ways. Moreover, in the years preceding the American Revolution, British policy-makers attempted, on the basis of a geographic dividing line between Britain and America, to make the colonists into a permanent underclass in the Empire. The Sugar and Stamp Acts represented the legal enactment of this theory, and the immediate and violent colonial response to them is explained as the rejection by the colonists of their consignment to a politically voiceless lower class.
Torturing Colonists for Degeneracy in Colonial Virginia
The tremendous fear that colonists were degenerates who would obstruct English imperial efforts was evident from the earliest days of settlement in Virginia, when Gov. Thomas Dale punished colonists mercilessly for the crime of running away to the Indians. These colonists were subjected to a variety of horrific fates. A contemporary observed that some were “executed, some he appointed to be hanged, some burned, some to be broken on wheels, others to be staked, and some to be shott to deathe, all theis extreme and crewell tortures he used . . . to terrefy the reste.”21 Dale tortured English colonists for running away to the Indians, and in this instance he did nothing to the natives. He was concerned only to punish colonists, and the reason is important. He caught them attempting to cross the dividing line between colonist and native.
*Professor of Law, Ohio Northern University. J.D., Columbia Law School; Ph.D., Yale University. This is the third part of a series of Articles on constitutional conflict and development in the English-American colonies. The first two parts were published as The American Revolution and Constitutionalism in the Seventeenth-Century West Indies, 95 Colum. L. Rev. 104 (1995), and The Imperial Origins of Federal Indian Law: The Ideology of Colonization in Britain, Ireland, and America, 31 Ariz. St. L.J. 1207 (1999). I have presented versions of this Article at the Yale Law School Legal History Forum, the NYU Legal History Colloquium, the Annual Meeting of the American Political Science Association, and the Fordham Law School Constitutional History Seminar. 1 For a general account of the controversy, see James W. Ceaser, Reconstructing America: The Symbol of America in Modern Thought 19-65 (1997); Henry Steele Commager, The Empire of Reason: How Europe Imagined and America Realized the Englightenment 80-84 (1977). 2 Arthur Schlesinger Jr., “Was America a Mistake? Reflections on the long history of efforts to debunk Columbus and his discovery,” available at http://muweb.millersville.edu/~columbus/ data/art/SCHLESINGER.HTML. 3 Was America a Mistake? 14-15 (Henry S. Commager & Elmo Giordanetti, eds., 1967). 4 Id. at 19-20. 5 Scholars have noted that the Scottish historian William Robertson remarked that the Indians were “feeble of constitution” and that
He thus set the most important pattern in colonial American constitutional history, by treating colonists as less than English on account of their departure from English society. This treatment was applied to lower-class deserters to the Indians, but at the time the view was developing that all Englishmen who left England to settle in colonies became less English and less deserving of English rights. The incident also shows that imperial authorities were apt to compare their colonists with the natives whose sympathies and labors they hoped to win, and that the comparison was often not flattering to the colonists. We assume too easily that there was an unassailable affinity between the English and their colonists, and an unremitting hostility between the English and the Indians. Dale felt no affinity for colonists in his charge. He was punishing English colonists for their “degeneracy,” which they demonstrated by their departure from a supposedly civilized society into a society thought by the English to be uncivilized. This departure was feared because it would have two undesirable results. It would remove colonists from the confines of English government, and it would expose natives to
the features of the American climate which had “stunted the growth” of native species had also “proved pernicious to such as have migrated to it voluntarily”–i.e., colonists. Robertson is generally believed to have imitated the observations of continental Europeans, and not to have presented an independent British or English strain of the degeneracy critique. Id. at 22-23. 6 Two articles that do pay attention to the English tendency to denigrate American colonists are T.H. Breen, “Ideology and Nationalism on the Eve of the American Revolution: Revisions Once More in Need of Revising,” 84 J. Amer. Hist. 13 (1997); Dror Wahrman, “The English Problem of Identity in the American Revolution,” 106 Amer. Hist. Rev. 1236 (2001). 7 Benjamin Franklin, To a French Friend, [June, 1772], in 19 The Papers of Benjamin Franklin 449, 451 (Leonard Labaree et al., eds., 1959- ). 8 Commager & Giordanetti, supra note 3, at 32. 9 Adams wrote that “Jefferson exposed the mistakes of Buffon, so unphilosophically borrowed from the despicable dreams of de Pau.” Ceaser, supra note 1, at 21. 10 Crèvecoeur’s Letters from an American Farmer, available at xroads.virginia. edu/~HYPER/CREV/home.html, were dedicated to Raynal. See the Dedication at xroads. virginia.edu/~HYPER/CREV/contents.html. 11 Buffon’s American Degeneracy: part 2: American Reaction, available at http://www. acnatsci.org/museum/jefferson/otherPages/ degeneracy 02.html.
the corrupting influence of the worst kind of Englishman – the colonist. The lesson that Dale sought to teach was to become clear in the next two centuries. For imperial purposes, colonists and Indians were interchangeable instruments of empire. The “rights” of each were to be determined by a standard of utility, and if circumstances called for it, colonists were to be treated more harshly than natives. This policy was not practiced consistently, in large measure because colonists rejected their consignment to a permanent lower class, often preferring to see others in that role. In times of imperial crisis or retrenchment, however, English policy-makers would again look askance at their colonists, characterizing them in a variety of unflattering ways intended to make clear that colonists were not full Englishmen and thus not entitled to the rights of Englishmen. The assertion of this view in the 1760s and 1770s led to the American Revolution, as colonists rejected the imperial ideal of inequality and adopted in its place an ideal of equality, whose meaning was not fully known to them at the time, and which has dominated constitutional discourse in one way or another ever since.
Thomas Jefferson, Notes on the State of Virginia (1787, William Peden ed., repr. 1972). The work is available online at http://etext.lib. virginia.edu/toc/modeng/public/JefVirg.html. 13 Id. at Query VI, available at http://wyllie.lib. virginia.edu:8086/perl/toccer new?id=JefVirg. sgm&images=images/modeng&data=/texts/ english/modeng/parsed&tag=public&part=6&d ivision=div1. 14 [Alexander Hamilton], Federalist No. 11, available at http://usinfo.state.gov/usa/infousa/facts/funddocs/fed/federa11.htm. 15 See Ceaser, supra note 1, at 53-63. 16 Gazetteer, Nov. 13, 1765; “I am for Old England,” London Chronicle, Feb. 20, 1766, in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764-1766, at 102 (Edmund S. Morgan ed., 1959)(emphasis added). 17 See Thomas Jefferson (1784), available at http://www.amphilsoc.org/library/exhibits/ nature/jefferson.htm. 18 Robert Hughes, The Fatal Shore 1 (1987). 19 Fred Hinkhouse, The Preliminaries of the American Revolution as Seen in the English Press, 1763-1775, at 102 (1926)(quoting The London Packet, Jan. 4, 1775)(emphases added). 20 Gazetteer, Nov. 13, 1765. 21 Howard Mumford Jones, O Strange New World 172-75 (New York, 1963). 12
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2013-14 YEAR IN REVIEW
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1 DIVERSITY FORUM. The importance of diversity in the political and legal arenas was the topic of discussion at the 15th annual Diversity Forum in February. Ohio Sens. Eric Kearney (D-Cincinnati) and Capri Cafaro (D-Hubbard) were the featured speakers. 2 NATIONAL DEBATE ON DRONE STRIKES. Law professor Michael Lewis, a leading expert on the use of military drones in the global war on terror, participated in a national debate on the constitutionality of using drone strikes to kill American citizens abroad. The debate took place at Philadelphia’s National Constitution Center in March and was recorded for broadcast on more than 220 National Public Radio stations nationwide. 3 KORMENDY LECTURE FEATURES PULITZER PRIZE WINNER. ONU Law presented the 2014 Kormendy Lecture in April. The program featured a presentation by Fredrik Logevall, Pulitzer Prize-winning author of Embers of War: The Fall of an Empire and the Making of America’s Vietnam. 4 ONU TOP IN OUTCOMES. ONU Law graduates continued their record of outstanding achievement on the Ohio bar examination with an overall passage rate of 80 percent, which ranks first among applicants from all Ohio law schools who took the examination in February 2014. ONU’s passage rate of 80 percent was well above the overall state average of 64.3 percent. In addition, 2013 ONU Law graduates placed first in the state of Ohio for full-time juris doctor-required job placement, according to employment data released by the American Bar Association Section on Legal Education and Admission to the Bar. ONU surpassed the national average for jobs requiring a law degree by nearly 10 percent. 5 KAMATALI OP-ED APPEARS IN THE NEW YORK TIMES. In April, an opinion piece by Jean-Marie Kamatali, ONU assistant professor of law, appeared in the domestic and international editions of The New York Times. In his moving essay, Kamatali examined why so many ordinary people were compelled to do such terrible things during the Rwandan Genocide of 1994.
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6 TRIBUTE TO OHIO’S OLDEST JUDGE. Joe Milton Moorhead, JD ’38, who was believed to be the oldest retired judge in Ohio, passed away in March at age 105. Moorhead was a prosecutor in Hancock County before being elected a probate judge in 1949. In 1953, he was elected to the common pleas bench, where he served until retirement in 1976. According to his obituary, getting a law degree was a “childhood dream that became a reality” for Moorhead. 7 LAW REVIEW SYMPOSIUM. Six renowned experts on foreign anticorruption law presented at the 37th annual Law Review Symposium in March. They addressed the need to combat corruption both domestically and internationally in the areas of business, politics, and law. Speakers included two attorneys specializing in whitecollar enforcement and compliance, a law professor from the University of Michigan, an integrity compliance officer for the World Bank Group, and a general counsel for an international conglomerate of oil companies. 8 AFGHANISTAN STUDENT PROSECUTES IN ALLEN COUNTY. Ezmarai Osmany, an LLM student and former prosecutor in Afghanistan, received special permission from the Ohio Supreme Court to prosecute in the Allen County’s Prosecutor’s Office. Traditionally, students must have completed two years of law school to get a student license. “This is an amazing opportunity for Ezmari to assist in prosecution in an American state court,” said Bruce French, professor of law and former director of clinical programs. “To my knowledge, it’s the first time that the Ohio Supreme Court has approved such an experimental initiative.” 9 NEW SCHOLARSHIP ESTABLISHED. Don Beran, JD ’64, and his wife, Mary Helen, established an endowed scholarship in memory of the late Rev. Monsignor Francis Xavier Schweitzer Hon. D. ’71, who served in the Ada community from 1955-67 at Our Lady of Lourdes Catholic Church and Ohio Northern University. Schweitzer is well remembered for his service to the poor and the tremendous contributions to the University. He was one of the few local citizens ever awarded an honorary degree from Ohio Northern. With the Berans’ gift, a student will be selected annually at the discretion of the dean and by nominations of the law faculty. This award will benefit a student who embodies characteristics of community service to the law school and Ada area. The Writ 2014
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FACULTY NEWS Deidré Keller Deidré Keller, associate professor of law, presented “Property and Persons: Some Preliminary Thoughts on Inherent Inalienability” at the fifth annual meeting of the Association for Law, Property and Society at the University of British Columbia in Vancouver, Canada. Keller’s article, “What He Said: Considering the Transformative Potential of the Use of Copyrighted Content in Political Campaigns,” was presented at University of Kentucky College of Law in March and has been accepted for publication in Vanderbilt’s Journal of Entertainment and Technology Law. Keller also presented “Alienation, Over Investment and Fetish: Narratives of Ownership in Selected Works of Toni Morrison” and moderated a panel, “Getting to Tenure / Mapping a Scholarly Agenda,” at the eighth annual Lutie Lytle Black Women Law Faculty Writing Workshop, which was hosted by the University of Wisconsin Law School from June 26-29. Bruce Frohnen Bruce Frohnen, professor of law, served as a Charles Evans Hughes Professor of Jurisprudence at Colgate University for the spring semester 2014. Constitutional Morality and the Rule of Law: Norms, Structure, and the Problem of Power, written by Frohnen and George W. Carey, late professor of government at Georgetown University, will soon be published by Harvard University Press. Frohnen’s article, “Reading Constitutions Through Tocqueville’s Eyes,” has been accepted for publication in the Capital University Law Review, and his book chapter, “John Adams: Statesmanship and the Limits of Popularity,” has been accepted for publication in The Renewal of Statesmanship.
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Frohnen also participated in an Intercollegiate Studies Institute Leadership Conference from August 3-9, delivered lectures on “Constitutional Morality” and “The Impossibility of the French Revolution,” and conducted a seminar on Russell Kirks book, The Conservative Mind. Michael Lewis Michael Lewis, professor of law, was featured on Al Jazeera America on Oct. 22 for his recent op-ed on drones published in The Washington Post. The same op-ed ran on Oct. 30 in the Orange County Register. The Atlantic ran a cover story on drones by Mark Bowden, author of Black Hawk Down, and included Lewis’ essay, “Drones: Actually the Most Humane Form of Warfare Ever,” reviewing the article. Lewis lectured several times on the subject of drones at the University of Missouri/Kansas City; to an IHL Workshop sponsored by the University of Illinois and the American Red Cross; to the Operational Law of Armed Conflict course at the Army JAG School; and to the National Air & Space Intelligence Center at Wright-Patterson Air Force Base. Richard Bales Rick Bales, dean of the college of law, has coauthored (with Cornel B. Juniarto and Stefanus Brian Audyanto) a chapter on Indonesian labor and employment law, which was published in the treatise William L. Keller & Timothy J. Darby, eds., International Labor and Employment Laws (Bloomberg BNA - ABA Section of Labor & Employment Law 2013). A second Bales article, co-authored with Samantha Koeninger, “When a U.S. Domestic Court Can Enjoin a Foreign Court Proceeding,” was published by the Cardozo Journal of International and Comparative Law.
Bales has been invited to participate in the upcoming South Dakota Law Review Symposium on LGBTQ Issues and Law. Bales and Drew Pugsley, JD ’14, will coauthor an article for the symposium, and Pugsley will present. Joanne Brant Joanne Brant, professor of law, was quoted by two different NPR stations – KCRWCleveland on May 15 and WOSU-Columbus on May 19 – regarding the distinction in protection between the Constitutional rights of public versus private employees. Howard Fenton Howard Fenton, professor of Law and director of ONU’s center for democratic governance and rule of law, has had an essay, “The American LLM for Foreign Lawyers: Real Value or More Overpriced Low-utility Legal Education,” published in the spring 2014 international legal education issue of International Law News. Fenton also served on the Institute of International Education’s Boren Scholarships and Fellowships Review Panel this spring. Scott Gerber In April, Scott Gerber, professor of law, presented “Liberal Originalism: The Declaration of Independence and Constitutional Interpretation” as part of the Cleveland State Law Review symposium about “History and the Meaning of the Constitution.” In March, Gerber presented “Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education” to a faculty colloquium at Georgia State University College of Law. Gerber presented “Law and the Lively Experiment in Colonial Rhode Island” as part of the capstone conference celebrating the 350th anniversary of Rhode Island’s charter; the article will be published in the British Journal of American Legal Studies. In February, Gerber presented at the University of Chicago as part of the annual symposium of the Midwest Journal of Law & Policy. The symposium is on The Jurisprudence of Affirmative Action: Past, Present, and Future.
Gerber’s op-ed piece about the recent Fifth Circuit decision in Fisher v. University of Texas was published by The Huffington Post on July 17, 2014. It has been mentioned by Instapundit and How Appealing and was reprinted in the Austin American-Statesman. Jean-Marie Kamatali In April, Jean-Marie Kamatali, assistant professor of law, published an op-ed, “Following Orders in Rwanda,” in The New York Times. Kamatali was then featured on Democracy Now! to discuss his op-ed. Kamatali contributed the chapter “StateBuilding in Rwanda” to the book Reconstructing the Authoritarian State in Africa (Routledge Studies in African Politics and International Relations) George Klay Kieh Jr. & Pita Ogaba Agbese, eds., which was published in September. Kamatali presented a paper, “Time for Action: Making Non-State Actors Accountable for Their Human Rights Violations,” at the conference The Social Practice of Human Rights: Changing the Frontiers of Research and Advocacy at the University of Dayton in October. Elena Helmer Elena Helmer, professor of law and assistant director of ONU’s LLM program, has been appointed, for a second term, as co-chair of the ABA Section of International Law Anti-corruption Committee. This appointment puts her in charge of all Committee publications, the website, social media sites, and the law school/young lawyers outreach. Helmer presented “International NGOs: Anti-Corruption Compliance Challenges and Risks,” at the ONU College of Law’s 37th annual Law Review Symposium on March 28, 2014, and at the AMEX International / Rule of Law IQC Consortium lectures on international development in Washington, D.C, in January. She also just published Elena Helmer, et al., 2012 Year in Review: Anti-Corruption, 47 Int’l Law. 367-386 (2013). The International Lawyer has the second largest circulation of all law journals after The Harvard Law Review, with more than 24,000 subscribers in more than 90 countries.
David Pimentel On March 14, 2014, David Pimentel, interim director of ONU’s LLM program and visiting associate professor of law, addressed a delegation of Armenian judges visiting the U.S. as part of the U.S. State Department’s International Visitor Leadership Program. His topic was judicial independence and judicial accountability, drawing on his scholarship in the area and his experience with these issues in the judiciaries of Bosnia and Nepal. Pimentel’s article, “Fearing the Bogeyman: How the Legal System’s Overreaction to Perceived Danger Threatens Families and Children,” will be published in the Pepperdine Law Review. He also wrote “Prospects for the Rule of Law in South Sudan” as a guest columnist for Jurist. In May 2013, Pimentel traveled to Istanbul to present a paper co-authored with Brian Anderson, reference librarian and assistant professor of law, at the International Symposium on Human Rights and the Islamic World: The Case of Iraq. The title of his presentation was “Judicial Independence and the Role of Shari’a in a Modern Constitutional Democracy.” Also in May, Pimentel participated with the Rule of Law Cooperative of the University of South Carolina, conducting interagency training of U.S. personnel (Military, State Dept., USAID, DOJ, and Commerce Dept.) who were being sent throughout the world. His topic was “Interagency Rule of Law Planning – the Case of South Sudan.” Pimentel’s book review, Rule of Law Reform in Transitional States: Bringing Method to the Madness, has been accepted for publication by the Santa Clara Journal of International Law. In it, Pimentel reviews Advancing the Rule of Law Abroad: Next Generation Reform by Rachel Kleinfeld, who delivered the Dean’s Lecture at ONU’s College of Law in April 2014. Lauren Newell Lauren Newell, assistant professor of law, organized the semiannual Ohio Legal Scholarship Workshop held at ONU Law on Feb. 1. Five of ONU Law’s faculty members presented at the conference: Brian Anderson presented Anticorruption Reform in Rwanda: Strengthening Institutions and the Rule of Law to Eliminate Corruption and Promote Good Governance; Jean-Marie Kamatali presented The Limits of
the First Amendment: Protecting American Citizens’ Free Speech in the Era of Internet and Global Marketplace of Ideas; Deidré Keller presented The Ill-Conceived “Right” to Abandon; Lauren Newell presented Redefining Attention (and Revamping the Legal Profession?) for the Digital Generation; and David Pimentel presented Forfeitures as Excessive Fines: Finding a Practical and Principled Approach for Eighth Amendment Protection. Newell’s article, “Mickey Goes to France: A Case Study of the Euro Disneyland Negotiations,” has been accepted for publication by the Cardozo Journal of Conflict Resolution. In June, Newell presented a work-in-progress, “Negotiating Hungry: An Empirical Study of the Effect of Hunger on Negotiation,” at the Ohio Legal Scholarship Workshop, hosted by the University of Dayton. In November, she will present an updated version of that article in New York at the AALS Section on Dispute Resolution Works-in-Progress Conference, hosted by Cardozo Law School. In February 2014, Newell presented “Redefining Attention (and Revamping the Legal Profession?)” for the Digital Generation in Las Vegas at the Psychology and Lawyering: Coalescing the Field conference hosted by UNLV. Brian Anderson Brian Anderson, reference librarian and assistant professor of law, published an article on Cornell’s Legal Information Institute’s Vox Populii, a blog about emerging issues of law and technology. Anderson wrote about online legal information systems and the rule of law in Rwanda and other developing states. Anderson received a $4,150 grant from the American Association of Law Libraries for a research project titled “Determining the Role of Law Libraries in the Republic of Rwanda: A Survey of Users, Uses, and Overall Legal Society.” Anderson traveled to Rwanda in June 2013 to tour libraries, including all the law libraries in Rwanda, and to speak with library administrators, users, and others about the role of law libraries and legal information in Rwanda.
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College of Law Retirements Message from the Dean
The College of Law saw the departure of a few of its most venerated faculty members this summer. Professors Cecily Crider, BA ’73, JD ’93, Bruce French, Howard Fenton, Lou Lobenhofer, and John Martin retired after long and distinguished careers as faculty of the College of Law. Professor Sherry Young will take a one-year leave of absence before retiring next spring. In addition, our director of Career and Alumni Services, Cheryl Kitchen, and the associate director of the Law Library, Marsha Siebesma, retired. Last, but certainly not least, were the departures of Judy Podlesnick from the library and Lena Smith from Career and Alumni Services. From 1979, when Lobenhofer joined the faculty, until today, the College of Law has undergone a number of changes – many of which have transformed this college into what it is today. Over the course of all of these changes, however, two constants have been the skill and dedication of all of these great servants to ONU Law. Although I am, of course, disappointed to be losing some extremely experienced and talented people, I wish them all the very best and offer my sincere gratitude for all they have done for ONU. These retirements provide a once-in-a-generation opportunity for the College of Law. With our strategic planning process well underway, we are operating and planning from a position of strength. As is true for all organizations, it is hard to lose exceptional talent, but these losses often provide opportunities for rebirth through the hiring of new faculty and staff.
Professor Cecily Crider Joined the University in 1998
Professor Lou Lobenhofer (who will continue to teach this year as an adjunct) Joined the University in 1979
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One example of this is the college’s recent hiring of a new staff attorney, Micaela Deming, for the ONU Legal Clinic. Deming’s profile can be found under the faculty profiles on the law college website. Further, we are currently in the process of searching for a new director of Career and Alumni services. We anticipate a comprehensive search to fill faculty and administrative positions over the course of the next year. As William Arthur Ward once said, “Change, like sunshine, can be a friend or a foe, a blessing or a curse, a dawn or a dusk.” Here at ONU Law, we look forward to the blessing of a new dawn and embrace these changes as opportunities for new growth. If you would like to share a favorite memory about any of these retirees, or if one or more of them has touched your life in some way, I would love to hear about it. Please contact me directly at r-bales@onu. edu or 419-772-2205. I will be happy to pass along your best wishes, and I very much appreciate your help in honoring these folks who have given so much of themselves to so many. Rick Bales Dean, College of Law
Professor Howard Fenton (who will continue to teach this year as an adjunct) Joined the University in 1988
Associate Professor Marcia Siebesma (library) (who will continue to work part-time) Joined the University in 1975
Professor Sherri Young Joined the University in 1987
Lena Smith (Career Services/Alumni) Joined the University in 2000
Professor Bruce French Joined the University in 1983
Cheryl Kitchen (Director, Career Services/ Alumni) Joined the University in 1991
Judy Podlesnick (library) Joined the University in 1997
Professor Martin Retires
A member of the ONU faculty since 2006, professor John Martin retired this spring. Prior to ONU, he was a partner with Warner, Norcross & Judd LLP in Muskegon and Grand Rapids, Mich. He also taught at the University of North Carolina School of Law in
Chapel Hill and served as a visiting professor of law at the University of Texas, the University of Michigan, and the University of Virginia. ONU awarded him the Excellence in Teaching Award in 2007 and 2012. He received his JD and AB from the University of Michigan. “John Martin is one of the finest lawyers and scholars I have ever known,” says Stephen Veltri, professor of law. “I was privileged to hear his last lecture. He related a lesson he had learned at camp as a boy. He was taught to ‘hold God first, the other fellow second, and then himself.’ He learned this lesson well. As a colleague, he always valued the interest of the college and University before his own. As a teacher, his concern was first and foremost for the students, not his own convenience. As a scholar, he sought to improve the law and assist others engaged in practice. I personally will miss John’s wise counsel, broad learning, and engaging conversation.”
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The Impact
Honorary and
Memorial Gifts
Honorary and memorial gifts are a distinctive way to pay tribute to an individual, living or deceased, whom you admire or love. By making a gift in their name, you perpetuate their memory with an act of kindness that will positively impact lives for years to come. Any gift, such as a cash donation, a real estate or stock transfer, or a naming fund such as an endowed scholarship, can further ONU’s mission in someone’s honor.
Honor Service Rhett Burgess, JD ’79, and his wife, Carol, made a memorial gift to ONU for an endowed scholarship in honor of Rhett’s parents. William and Millicent Burgess were members of the Greatest Generation who met and married in England at the height of hostilities during World War II. William served as a paratrooper with the U.S. 17th Airborne Division, which saw action at the Battle of the Bulge and other campaigns in the European theatre. An attorney from Indiana, Rhett wanted his scholarship to benefit current members or veterans of the armed services, or their children, who attend the Claude W. Pettit College of Law. The scholarship is a fitting tribute not only to Rhett’s parents, but also to all members of the United States armed services who sacrifice to preserve and protect America’s freedoms.
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of Giving Law Admissions Office Remodel First impressions matter, says Chad Vondenhuevel, director of law admissions. And the Pettit College of Law wants to leave prospective students with a first impression of excellence. “We are facing an extremely competitive admissions environment,” explains Vondenhuevel. “Law school enrollment nationwide is on the decline.” In December, The Wall Street Journal reported that first-year enrollment numbers plunged this year to a level not seen since 1977. One of the first places that prospective law students visit on campus is the admissions office. Until recently, the Pettit College of Law’s admissions office, with its cramped spaces, cinder block walls, and outdated furnishing, failed to “wow.” “ONU Law has so much to offer students. We want their first impression of our school to match the quality of our program,” says Vondenhuevel. “A comfortable space where we can introduce prospective students to who we are is incredibly important, especially in this day and age when students have so many options.” This spring, the law college’s outdated admissions office received a much-needed facelift thanks to the generosity of supporters, including a lead gift of $25,000 from Nick Amato, JD ’88. Amato has practiced law for more than 25 years at his firm, Amato Law Office LPA, in Wellsville, Ohio, located along the Ohio River. He credits his ONU education for his successful career in personal injury and wrongful death litigation. “It (my ONU law school education) has meant everything to me,” he says.
“ONU provided such a wonderful learning environment. My professors were easy to access, and they all had a big influence on me. The internship program gave me a chance to get my feet wet and prepared me to start my own firm just a couple of years after graduating.” Through his donation to the admissions remodel project, says Amato, he hopes to encourage other students to enroll at ONU and experience all the school has to offer. “I believe you should always give back to the people and places that helped you along the way,” he says. “I took the lessons I learned at ONU and forged a successful career. I want to help others to have a great educational experience and grow the reputation of the law school.” The remodel project, which took approximately six weeks, reconfigured the existing admissions space to create a more modern, comfortable, and expansive space to serve prospective students and their families. The reception area was expanded, a new counseling room was configured, cinder block and paneled walls were refinished with drywall, and fresh paint, carpeting, and furnishings completed the project. “Without Mr. Amato’s gift, this project wouldn’t have been possible,” says Vondenhuevel. “We are extremely grateful for his generous donation, which will allow us to put our best foot forward so that every guest feels at home.” The Writ 2014
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Campaigning Under the Weight of Copyright1 Deidré A. Keller2
As the 2014 political campaign season begins, one can almost predict the imminent copyright battles. All one need do is look at our recent history. The 2012 primary season included allegations of copyright infringement against Newt Gingrich, Michele Bachmann, and Mitt Romney.3 In fact, such allegations have plagued political campaigns at least as far back as Bob Dole’s in 1996.4 Even this iconic image from the 2008 campaign season ended up at the center of a copyright infringement suit.5 While one might think that such allegations lack merit in light of the First Amendment interests at stake, a brief analysis of the relevant case law tells a very different story. Therefore, if we believe, as the Supreme Court has stated, that “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office,”6 we must try to better reconcile the Copyright Act with the First Amendment in this important context. Courts have consistently held that First Amendment scrutiny in the context of Pg. 32
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copyright infringement suits is unnecessary.7 According to the Supreme Court, “copyright’s idea/expression dichotomy ‘strike[s] a definitional balance between the First Amendment and the Copyright Act. . . .’”8 The D.C. Circuit has stated, “copyrights are categorically immune from challenges under the First Amendment.”9 While the Supreme Court has articulated a more nuanced approach,10 in Golan the Court asserted that the application of the First Amendment in copyright cases is only appropriate when the idea-expression dichotomy and fair use fail to protect free speech interests.11 Therefore, we must think through whether these internal safeguards protect free speech interests when copyrighted content is used in the context of political campaigns.
Defining the Relevant First Amendment Interests
The Supreme Court has long held that the First Amendment provides the greatest protection to speech concerning governmental affairs.12 Such speech is necessary for self-government.13 According to the Court, “debate on the qualifications of candidates [is] integral to the operation of
the system of government established by our Constitution.”14 In Citizens United, the Court held “political speech must prevail over law that would suppress it, whether by design or inadvertence.”15 Although Citizens United deals with a very different statute, much of the language of the decision is arguably directly applicable to suits arising under the Copyright Act. For example: The First Amendment does not permit laws that force speakers to retain a[n] . . . attorney . . . or seek declaratory rulings before discussing the most salient political issues of our day. . . . The Government may not render a ban on political speech constitutional by carving out a limited exemption . . . .16 The Citizens United Court “decline[d] to adopt an interpretation that require[d] intricate case-by-case determinations to verify whether political speech is banned.”17 The Court also pointed out that the very need for lawsuits commenced in the “heat of political campaigns” to determine whether certain speech is acceptable “stifle[s]” political speech.18
regardless of the form in which it is described, explained, illustrated, or embodied in such work.”20 It is important to note that while courts often hail the idea-expression dichotomy as protective of First Amendment interests, in cases raising the First Amendment as a defense to infringement courts tend to disregard the concept almost entirely and rely instead on the fair use defense.21 Reflection upon that doctrine is therefore in order.
Copyright Infringement and the Fair Use Defense Section 106 of the Copyright Act grants the exclusive rights of reproduction, distribution, and public display, among others, to the copyright owner.22 However, Sections 107 to 122 provide specific exemptions from these broad rights.
It has been argued that there are First Amendment interests on both sides in copyright infringement suits.19 Even if one accepts that argument, when the allegedly infringing use occurs in the context of a political campaign, it is difficult to see how the First Amendment interest a copyright owner may have in not speaking even begins to compare to the First Amendment rights of candidates to control their political messages or of voters to hear those messages.
Considering the Viability of the “Internal Safeguards:” The Idea / Expression Dichotomy and Fair Use as Protectors of the First Amendment Interests of Candidates and Constituents Idea / Expression Section 102(b) of the Copyright Act codifies the idea-expression dichotomy, stating: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery,
Section 107 is the fair use provision.23 It reads: [T]he fair use of a copyrighted work . . . is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.24 Although the listed factors are nonexhaustive, they tend to predominate courts’ fair use decisions.25 Fair use is an affirmative defense,26 is a mixed question of law and fact,27 and requires case-by-case analysis.28 Given the fact-sensitive nature of the fair use inquiry, courts have long held that summary adjudication of fair use is improper.29 Moreover, the first factor – the purpose and character of the
use – tends to drive the analysis.30 As such, I will focus here on the purpose and character of the use of copyrighted content by political campaigns. In considering this factor, courts inquire as to (1) whether the use is commercial or for nonprofit or educational purposes31 and (2) whether the use is transformative.32 The nonprofit nature of the alleged infringement is not dispositive.33 Courts have split on the issue of whether the use of a copyrighted work in a political campaign is commercial for purposes of the fair use analysis. In Keep Thomson Governor Committee v. Citizens for Gallen Committee,34 the District Court of New Hampshire considered whether the Defendant’s campaign advertisement, which incorporated 15 seconds of Plaintiff’s song, constituted copyright infringement.35 The Defendant asserted that its use constituted fair use.36 Regarding the character of the use, the Court stated, “The use by the defendant . . . is clearly part of a political campaign message, noncommercial in nature . . . 37 .” Nearly 30 years later, the Southern District of New York also concluded that the use of copyrighted content in the context of a political advertisement was not commercial.38 More recently, the Central District of California came to the opposite conclusion.39 In Henley v. Devore,40 the Court considered whether the use of two copyrighted songs in political advertisements constituted fair use.41 The Court acknowledged the prior precedent but explained that, “in the Ninth Circuit ‘monetary gain is not the sole criterion[,] particularly in a setting where profit is ill-measured in dollars.’” 42 The Court went on to say that the defendants “stood to gain publicity and campaign donations from their use of” the copyrighted songs;43 therefore, the use was commercial.44 A use is transformative if it serves a purpose different from the copyrighted work.45 The classic case of a transformative use is a parody, which uses a copyrighted work to create a new work.46 In Campbell v. Acuff The Writ 2014
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Rose,47 the Supreme Court held that a parody of Roy Orbison’s song “Oh, Pretty Woman” was a fair use.48 In Campbell, the Court defined parody as “the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.”49 The Court assumed that the goal of any parody is to amuse its audience,50 even if the joke might not be to the Court’s taste.51 Since Campbell, a number of lower courts have found transformative uses outside of the context of parody. For example, in Perfect 10, Inc. v. Amazon.com, Inc.,52 the Ninth Circuit held that the alleged infringer engaged in transformative use when it provided thumbnails of the copyright owner’s images in its search engine results.53 To the extent that a court hearing a copyright infringement suit will consider the First Amendment as a limit upon copyright, it will generally do so based on the nature of the alleged infringer’s use.54 A number of courts have held that a use involving content that is of great public concern weighs in favor of the alleged infringer.55 Moreover, courts have held that where a case implicates the First Amendment, the fair use doctrine is to be given a wider reading.56 However, no court has ever held that the use of copyrighted content in a campaign advertisement is fair use as a matter of law. In fact, in Browne v. McCain,57 the McCain presidential campaign filed a motion to dismiss, asserting that use of the song “Running on Empty” in its advertisement constituted fair use as a matter of law.58 The Central District of California denied the motion explaining, [The Republican National Committee] has not established that Plaintiff’s claim is barred, as a matter of law, under the fair use doctrine. The mere fact that Plaintiff’s claim is based on Defendants’ use of his copyrighted work in a political campaign does not bar Plaintiff’s claim as a matter of law.59
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The McCain campaign ultimately settled.60 Similarly, in Long v. Ballantine,61 the Eastern District of North Carolina denied an alleged infringer’s motion for judgment as a matter of law on the issue of fair use where the defendant used plaintiff’s photograph in the context of a campaign advertisement.62 The Long court specifically held that fair use is determined on a case-by-case basis, and, therefore, the determination of this issue at trial was dispositive.63 The Long decision also highlights an additional risk an alleged infringer in a copyright infringement suit faces – the award of attorney’s fees and costs.64 Even though the jury only awarded damages of $500,65 the plaintiff was able to recover more than $70,000 in attorney’s fees and costs.66 Such decisions give any potential copyright defendant pause.
Conclusion
In order to harmonize the Copyright Act with the free speech interests at stake in cases where the copyrighted content is used in the context of political campaigns, both procedural and substantive problems must be addressed. First, a rebuttable presumption of fair use in this context would go a long way in recognizing that lengthy adjudications around issues of protected political speech during the heat of a campaign are anathema to the protection provided by the First Amendment.67 On the substantive side, the Supreme Court has already provided a rhetorical approach that could prove useful: tranformativeness. Utilizing that concept to evaluate fair use in political campaigns makes even more sense than the extensions of the concept into other areas that lower courts have already countenanced.68 As articulated in Campbell, transformativeness is protective of First Amendment interests.69 Courts treat parodies as potentially important social commentary.70 Political speech – speech undertaken by a candidate for political office in furtherance of his candidacy – deserves at least as much breathing room as parody. Therefore, I would suggest that courts considering allegations of copyright infringement in the context of political campaigns recognize the First Amendment interests at stake by expanding the notion of tranformativeness to encompass such uses.
This piece is adapted from Deidré A. Keller, “What He Said.” The Transformative Potential of the Use of Copyrighted Content in Political Campaigns - or - How a Win for Mitt Romney Might Have Been a Victory for Free Speech, 16 Vand. J. Ent. & Tech. L. 497 (2014), available at http://www.jetlaw.org/journalarchives/volume-16/volume-16-issue-3/what-he-said/. 2 Associate Professor of Law at Ohio Northern University. 3 See Katie Byrne, K’Naan Wants Mitt Romney to Stop Using Waving Flag, MTV (Feb. 1, 2012, 7:50 PM), http://www.mtv.com/news/articles/1678368/knaan-mitt-romneywaving-flag.jhtml (“Waving Flag”); Miriam Coleman, Newt Gingrich Ordered to Stop Using ‘How You Like Me Now?’, ROLLING STONE (Jan. 28, 2012, 1:30 PM), http:// www.rollingstone.com/music/news/ newt-gingrich-ordered-to-stop-using-how-you-like-me-now-20120128 (“How You Like Me Now?”); Andy Greene, Katrina and the Waves Join Tom Petty’s Fight Against Michele Bachmann, ROLLING STONE (June 29, 2011, 3:50 PM), http:// www.rollingstone.com/politics/ news/katrina-and-the-waves-jointom-pettys-fight-against-michelebachmann-20110629 ( “Walking on Sunshine”). 4 Jack Doyle, I’m a Dole Man, 1996, THE POP HISTORY DIG (Dec. 3, 2009), http://www.pophistorydig. com/?p=4891 (describing Bob Dole’s use of a version of “Soul Man” in his 1996 presidential election campaign and the ensuing allegations of infringement). 5 Shepard Fairey v. Associated Press, No. 09-01123 (S.D.N.Y. 2010). 6 Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). 7 See, e.g., Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 758–59 (9th Cir. 1978), cert. denied, 439 U.S. 1132 (1979) (“defendants’ [First Amendment] claim can be dismissed without a lengthy discussion”). 8 Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S 539, 556 (1985) (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 723 1
F.2d 195, 203 (2d Cir. 1983), rev’d, 471 U.S. 539 (1985)). 9 Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001), aff’d, 537 U.S. 186 (2003). 10 See Eldred v. Reno, 537 U.S. 186, 221 (2003) (“We recognize that the D.C. Circuit spoke too broadly when it declared copyrights ‘categorically immune from challenges under the First Amendment.’” (quoting Eldred v. Reno, 239 F.3d at 375))). 11 See Golan v. Holder, 132 S. Ct. 873, 890 (2012) (describing the traditional contours of copyright as the idea/expression dichotomy and the fair use defense and noting that the Tenth Circuit’s broader reading of the term was incorrect). 12 See Mills v. Alabama, 384 U.S. 214, 218 (1966) (“there is practically universal agreement that a major purpose of . . . [the First] Amendment was to protect the free discussion of governmental affairs”). 13 Connick v. Myers, 461 U.S. 138, 160 (1983) (“‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’” (quoting Garrison v. Louisiana, 379 U.S. 64, 74–75 (1965))). 14 Buckley v. Valeo, 424 U.S. 1, 14 (1976). 15 Id. 16 Id. at 324. 17 Id. at 329. 18 Id. at 334. 19 David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. PITT. L. REV. 281 (2004). 20 17 U.S.C. § 102(b) (2012). 21 See, e.g., Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1260 (2001); Salinger v. Colting, 607 F.3d 68, 83 (2010). Note also, that none of the decisions in which a claim of copyright infringement is asserted in the context of a political campaign includes any discussion of the idea expression dichotomy. See infra notes 34-44, 57-66 and accompanying text. 22 17 U.S.C. § 106 (2012). 23 17 U.S.C. § 107 (2012). 24 Id. 25 See Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. PA. L. REV. 549, 561–64 (2008). 26 See Campbell v. Acuff-Rose Music, 510 U.S. 569, 590 (1994). For a full explication of how fair use came to be understood as an affirmative defense in American law, see Ned Snow, The Forgotten Right of Fair Use, 62 CASE W. RES. L.
REV. 135, 159–60 (2011). 27 See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). 28 See id. at 549. 29 See, e.g., DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 28 (2d Cir. 1982 ) (“The four factors listed in Section 107 raise essentially factual issues and, as the district court correctly noted, are normally questions for the jury.”); but see Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 800 (9th Cir. 2003) (“Where material facts are not in dispute, fair use is appropriately decided on summary judgment.” (citing Harper & Row, Publishers, Inc., 471 U.S. at 560)). 30 Elizabeth Troup Timkovich, The New Significance of the Four Fair Use Factors As Applied to Parody: Interpreting the Court’s Analysis in Campbell v. AcuffRose Music, Inc., 5 Tul. J. Tech. & Intell. Prop. 61, 62 (2003). 31 See Harper & Row, Publishers, Inc., 471 U.S. at 562. 32 See Campbell, 510 U.S. at 587–88. 33 Kevin M. Lemley, A Proposal to Expand the Religious Services Exemption Under the Copyright Act, 34 U. Ark. Little Rock L. Rev. 481, 498 (2012). 34 457 F. Supp. 957 (D.N.H. 1978). 35 Id. 36 See id. at 960. 37 Id. at 961. 38 See Mastercard Int’l Inc. v. Nader 2000 Primary Comm., No. 00 Civ.6068(GBD), 2004 WL 434404, at *9 (S.D.N.Y. Mar. 8, 2004). 39 See Henley v. DeVore, 733 F.Supp. 2d 1144, 1159 (C.D. Cal 2010). 40 733 F. Supp. 2d 1144 (C.D. Cal. 2010). 41 See id. at 1150. 42 Id. at 1159 (alterations in original) (quoting Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1117 (9th Cir. 2000)). 43 Id. 44 See id. 45 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 46 See id. 47 Id. 48 See id. at 572. 49 Id. at 580 (citing Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986); MCA, Inc. v. Wilson, 677 F.2d 180, 185 (2d Cir. 1981)). 50 See d. at 597. 51 See id. at 582. 52 508 F.3d 1146 (9th Cir. 2007). 53 See Perfect 10, Inc., 508 F.3d at 1165;
Kelly, 336 F.3d at 819. 54 See, e.g., Nat’l Rifle Ass’n of Am. v. Handgun Control Fed’n of Ohio, 15 F.3d 559, 562 (6th Cir. 1994) (“This contrast with commercial activity helps show that the purpose and character of HCF’s use is far removed from that which the copyright law centrally protects and instead falls within the realm of the designated fair use purposes. The document was used primarily in exercising HCF’s First Amendment speech rights to comment on public issues and to petition the government regarding legislation.”). 55 See id. (“The scope of the fair use doctrine is wider when the use relates to issues of public concern.” (citing Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1050 (2d Cir. 1983)). 56 See, e.g., Wojnarowicz v. Am. Family Ass’n, 745 F. Supp. 130, 146–47 (S.D.N.Y. 1990). 57 612 F. Supp. 2d 1125 (C.D. Cal. 2009). 58 See id. at 1129–30. 59 Id. at 1130. 60 See May Ann Akers, Jackson Browne Defeats John McCain, THE WASHINGTON POST (July 21, 2009, 3:06 PM, updated July 22, 2009, 9:35 AM), http://voices.washingtonpost.com/ sleuth/2009/07/john_mccain_really_running_on.html. 61 No. 7:96-CV-210-BR, 1998 U.S. Dist. LEXIS 7813 (E.D.N.C. Mar. 25, 1998). 62 See id. at *2, *16–18. 63 See id. at *17. 64 See id. at *3. 65 See id. at *2–3. 66 See id. at *11–14. 67 See supra notes 17-18 and accompanying text. 68 See supra notes 52-53 and accompanying text. 69 See, e.g., Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. Cal. 1997) (“[T]he inquiry is whether . . . and to what extent the new work is ‘transformative,’ i.e., altering [the copyrighted work] with new expression, meaning or message. Parody is regarded as a form of social and literary criticism, having a socially significant value as free speech under the First Amendment.”); see generally Mel Marquis, Fair Use of the First Amendment: Parody and Its Protections, 8 SETON HALL CONST. L.J. 123 (1997). 70 See id. The Writ 2014
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