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FALL 2007



he College of Law is now more than 120 years old. Over those years the college has established many deeply held traditions. Yet each fall brings a sense of excitement to the college – new students, new colleagues, new courses, new facilities, and new friends. Each year has its own blend of personalities and perspectives to challenge and invigorate us. Indeed, the experience of annually beginning anew has a profoundly energizing effect on all of us. It is a catalyst for much of the momentum toward excellence that you will find described in the pages that follow. In the midst of fall’s focus on what is to be, however, it is important to recall where and what the college has been. We have a century long understanding that Ohio Northern is a school of opportunity for many who would not otherwise have the chance to enter the profession. From our beginnings as the law department of the Ohio Normal School we have been committed to this vision. It is one of the core values that makes us who we are. It is a mission that has not only contributed greatly to the diversity of the profession in the past, but a vision to which we remain actively committed. This edition of the Writ discusses one area - women and the law - in which this commitment is most clearly visible and in which the college has a long tradition of being in the forefront of legal education. In many respects, these early graduates from the law school paved a path for the acceptance of women in the profession. They are a legacy of which we are justly proud. We hope you will visit us in Ada. When you come you will find much that is new. But you will also find us continuing our century old commitment to opening doors to the profession. We look forward to your visit. Very truly yours,

David C. Crago Dean and Professor of Law

“Know Thyself ” –Socrates

“Control Thyself ” –Cicero

“Give Thyself ” –Jesus Watch for a very important letter in mid October from fellow alumnus, James Pry (JD’70), national chair of The Northern Fund for the College of Law.

Your support of the Pettit College of Law is greatly appreciated.



■ Fall 2007


COLLEGE OF LAW TODAY FEATURES WOMEN GRADUATES Page 2 EARLY Serving Family, Community and the Profession


WRIT STAFF EDITOR & WRITER: Mindi Wells (JD’98) ( Assistant Dean for Administration and Student Services College of Law CONTRIBUTING WRITERS: Sarah Moseley (A&S’07) Publications Assistant DESIGNER: Studio II West Liberty, OH

The Writ Fall 2007

The Writ is the official publication of the College of Law. The Writ is published once a year and distributed to alumni and friends of Ohio Northern University’s Claude W. Pettit College of Law. Letters, alumni notes, requests for reprint permission and manuscripts of articles should be sent to: Office of Law Alumni and Career Services Ohio Northern University Claude W. Pettit College of Law 525 N. Main • Ada, OH 45810 PHONE: (419) 772-1980 FAX: (419) 772-1487




EARLY WOMEN GRADUATES: Serving Family, Community and the Profession In education providing legal to allOhio who desired, Northern produced some of the state and country’s earliest female attorneys. These women, armed with their legal knowledge, went on to make significant contributions to not only the legalalso profession, but to their communities, their families, and to Ohio Northern.

the university now known as Ohio Northern lived its mission to provide the opportunity for higher

Now in its 123rd year, the College of Law continues the tradition of providing access to a legal education, with an incoming class of students which is 46% female. 2

ince its creation as Ohio Normal School in 1871,

education to anyone who desired such. The

institution’s founder, Henry Solomon Lehr, knew that a law school was necessary to prepare

students for the ever increasing rigor of the state licensing examination. Ohio Northern became the second institution to form a law school in Ohio when its law department opened in 1885. Its aim as stated in the Catalogue for 1920 -1921 was to “afford an opportunity for students of limited means, to secure a collegiate training in law, and by connection with the University to offer to them the added opportunity of obtaining the general education indispensable to the successful study and practice of law.”


Lenora (Lena) Boggess Wilcox Mason 1896 First Lady of the Law




n providing legal education to all who desired, Ohio Northern produced some of the state’s and country’s earliest female attorneys. These women, armed with their legal knowledge, went on to make significant contributions to not only the legal profession, but also to their communities, their families, and to Ohio Northern. This article focuses on the earliest female graduates of the Ohio Northern University College of Law, beginning with the first, Lena Wilcox Mason (1896), through those in the class of 1949. The only two surviving of the group, Belle Gothelf Siegel (1928) and Barbara DaPore Rizor (1942), were personally interviewed for this article. Much of the information for this article comes from obituaries of those women, as well as Ohio Northern yearbooks and alumni magazines on repository with the Heterick Library at Ohio Northern. All of the women featured earned the LL.B. from Ohio Northern. A ceremony was held on October 7, 1967 for those who received LL.B. degrees to receive J.D. degrees. Now in its 123rd year, the College of Law continues the tradition of providing access to a legal education, with an incoming class of students which is 46% female.

ena Wilcox Mason was the first woman to graduate from what is now the Ohio Northern University College of Law. Much is known about this extraordinary woman, largely due to the publication of “Lena: Her Story,” the autobiography prepared by her grand-nephew, Profiles of Women of the Law School: Pre 1950 continued… Fritz Conrad, from the handwritten pages that she compiled so that her grandsons would know about her life. Mason earned her teacher’s certificate in 1889 and taught in “LAW” schools in Washington and Ohio. She and her husband, (Class Poem–June 1896) Scott Mason, then enrolled in Ohio Normal School, where ‘Twas said by one, “I care not who they undertook a three year course of study in Law, including The laws of all the land we make; two years of Latin, and graduated in 1896 with Bachelor of Let me but make the Nations songs, Science and Bachelor of Law degrees. Mason’s classmates And I, the higher place will take.” chose her to write the class poem and also to give the “Legal The man was wrong! The law is first, Oration” as the law class graduation address. Her selection Nature and art obey its call; came at a time when a woman speaking in public was an And Music, Poetry, and song extremely unusual occurrence. There were about 30 people Must bow before it, one and all. in the class, all men except her. Her autobiography notes she Law rules the smallest flower that blows; participated in and won a public debate against a member of The storm that sweeps the mountain side; the State Legislature. Following graduation, she took the The iny shinning drops of dew; Ohio bar examination. She was awarded her license to pracThe billows of the ocean wide. tice in Ohio on June 25, 1896 as the only woman admitted Go search the mighty universe; to practice in Ohio that year. On her license to practice, the The earth, the sky, the sea, the air; word “Esquire” is crossed out. She returned to Port Angeles, Search even the glorious heaven itself, Washington, shortly thereafter due to her health and taught And Law, eternal law, is there. for a number of years. The Port Angeles Erbenina News Law is the sum of human thought; wrote a feature on her, May 25, 1951, noting she came to The wisdom of all ages past; Port Angeles “60 years ago to teach school (and) is as interThe height of all; the depth of all ested now in children as she ever was, and also takes an interThat’s weak, or mighty, small or vast. est in community life.” She was very active in the Women’s And we who make the Nations Laws, Relief Corps, 4-H, and activities to support local schools. Must also own supremacy; Uphold the law, obey the law And in the law, find Liberty.

The Writ Fall 2007



Her [Untermeyer] appointment to the Toledo Municipal Court made her the first woman judge in Lucas County. A plaque at the Municipal Court building identifies her as the first female named to the bench of a regularly constituted court. 4

Fanna B. Wright 1900 Anna B. Short 1905

Esther Antin Untermeyer 1915 A Zionist and Ex-Judge


ollowing her graduation from Ohio Northern, Esther Antin Untermeyer joined another female attorney, Miss Margaret Cummins, in a law office in Toledo, –1915 Yearbook Ohio. An article in the Toledo Blade from December 21, 1915 refers to Untermeyer as “although adopting a profession largely followed by men she was not in the least mannish” and calls the two “girl lawyers.” Untermeyer was appointed to the Toledo Municipal Court by Governor Vic Donahey in 1925 and later elected as the first woman Municipal Court judge in Toledo, where she served until 1933. Her appointment also made her the first woman judge in Lucas County. A plaque at the Municipal Court building identifies her as the first female named to the bench of a regularly constituted court. Untermeyer was listed as the earliest female attorney in active practice with the Toledo Bar Association in records from 1919. In “A Legal History of Lucas County,” Antin is said to have advertised her services in the Polk Directory with male members of the bar and earned a respected reputation in the Toledo legal community. She returned to the Ohio Northern campus to speak over the years and was instrumental in establishing ONU’s alumnae organization. She resigned her position on the Bench to marry poet, anthologist, and editor Louis Untermeyer. Their marriage was announced in Time magazine’s August 21, 1933 issue and listed her as “Toledo’s first woman

“She had a tongue forsooth.”

lawyer.” Untermeyer joined the New York bar, moved to Manhattan, and became a freelance editor working for several New York publishers that specialized in books by young Jewish authors. According to her obituary in the New York Times, she was active in the fight to create the State of Israel, was co-founder of the American League for Free Palestine, and on the board of the Herut Zionists of America. She was awarded the Jabotinsky Centennial Medal for distinguished service to Israel and the Jewish people by Prime Minister Menachem Begin in 1980 during his visit to the United States. Ella A. Albietz Fisher 1916 Loyal ONU Supporter


lla Albietz Fisher and her husband, Ernest H. Fisher (BSME’15) were lifelong supporters of Ohio Northern. Their generosity provided endowed funds for the colleges of Law and Engineering. Mr. Fisher was active in engineering and oil exploration in Pennsylvania. The Ella and Ernest Fisher Chair of Law was made possible by trusts and bequests from them. Fisher’s estate also bequeathed an 1892 Steinway grand piano to Ohio Northern. The only remaining of the four seven-octave Steinway grand pianos ever made, the piano was dedicated at Ohio Northern on September 15, 1982. It was originally placed in the English Chapel and later in Presser Hall. The dedication’s printed program said of the Fishers, “Their generosity in life and the charitable provisions in their wills are an example to all of us of Christian living and giving.” Mary Wells Schwerin 1917 Faye F. Shulman Roberts 1918 aye F. Shulman Roberts attended Ohio Northern from 1916 through 1918. After graduating from Ohio Northern, she prac-



from the past…




ortha DeMay Friedman Minnich graduated as the only woman in the class of 1926. In her alumni biography of May 1976, she talked of her “beloved school” and of burning the midnight oil to be worthy of the sacrifices her parents were making for her to attend school. Following graduation, she moved to Norristown, Pennsylvania, and worked for Norristown Penn Trust Company and Provident Trust Company of Philadelphia. Later, she worked as a Legal Assistant in the Board of Review of the Employment and Unemployment Divisions at Harrisburg, Pennsylvania. Although law was of great interest to her mind, she later explained, Bible satisfied her heart. Minnich graduated with first honors from the Bible Institute of Pennsylvania in 1935 and –1926 Yearbook went on to teach at Ben Lippen School in Asheville, North Carolina, Jefferson School of Commerce in Charlottesville, Virginia, and Columbia Christian School in Columbia, South Carolina. She and her sister founded DeMay-Minnich School for Business Training in South Hill, Virginia. She explained that although she was involved in the education field, she still utilized her legal knowledge, “law you never forget or forsake, even while your heart thrills at knowing you have asked the Lord to forgive your sins and give your life to Him. After all, all good basic law came from Him in the Ten Commandments.”

“My thoughts hold mortal strife.”

ticed law in the 1920s with her brothers, Ben and Louis Shulman (LLB’14). According to her obituary, she was one of the first women admitted to practice in Youngstown, Ohio and the first to try a case before the Ohio Supreme Court. She later moved to California and entered the finance field, establishing the Great Western Escrow and Title Co. in 1937, then later establishing the Linwood Savings and Loan Co. and the Trans World Savings and Loan, one of the largest home financing firms on the West Coast.

Ada Minola Weber 1924 da Minola Weber attended law school while her husband, Herman Jacob Weber, was a professor and later Dean of the law school. Following graduation, she helped him in his office.



Dortha DeMay Friedman Minnich 1926 Lawyer and Christian Educator

“Their [Fishers] generosity in life and the charitable provisions in their wills are an example to all of us of Christian living and giving.”

Dorothy E. Frey 1924

Weber 1924 The Writ Fall 2007


days, and she went into a family. . . . She was a homemaker, and a good one, raising her two boys, making a home for her husband.”


Marie Fialla Joachim 1927 A Respected Journalist for 39 Years

Marie Fialla Joachim …“the soul of integrity . . . dedicated to her chosen field and compassionate toward the world and all therein.”


arie Fialla Joachim was admitted to the Ohio bar in 1927 and practiced law for two years in her hometown of Girard, as well as in Youngstown and Warren, Ohio. Subsequently, her husband, Jerome Joachim, asked her to write the society column for the paper he was publishing. They later purchased the Berwyn (Illinois) Beacon in 1934 where she assumed the full-time position as society editor and authored the column, “Aunt Julia.” They sold the Beacon to The LIFE in 1952 and continued to operate Berwyn Publishing Co., a commercial printing and publishing firm until 1958. Mrs. Joachim continued as president of the company following her husband’s death in 1956. She became the women’s editor of the LIFE in 1959, holding that position until she retired on July 1, 1973, after 39 years in the newspaper industry. An article following her death in The LIFE on October 19, 1980, praised her for “being a consummate journalist, vitally interested in people and the events they created daily” and noted she was “the soul of integrity . . . dedicated to her chosen field and compassionate toward the world and all therein.” She was active in a number of social, patriotic, and professional organizations which kept her “in the mainstream of the community and the world.”


ccording to an article in The Urbana Citizen dated February 11, 1959, Judge Ann C. Roberts noted, she “had to wait four months until (she) could take the bar examination” because she was only 20 years old when she received her law degree and had to wait until she was 21 to take the examination. She was admitted to the Ohio bar in 1929 and admitted to practice in Federal Court in 1930. She was in private practice in Galion, Ohio, from 19291934, then served as Chief Deputy Clerk and Probation Officer for Champaign County Probate and Juvenile Court from 1947-1959, when she was appointed probate judge. Roberts became Ohio’s eighth woman probate judge when she was appointed by Continued on Page 9

Sarah “Sally” Britz Porus 1927 riginally from Cardiff, Wales, Sarah “Sally” Britz Porus moved with her family to the United States as a child, first to Indianapolis, then to Toledo. She attended Ohio Northern from 1924-1927. Following her graduation from law school, she practiced one year in Toledo, Ohio. She and her brother, Morris Britz, became members of the Ohio bar together. Their brother, Max Britz, was also a lawyer, as well as her nephew, Harland Britz. Her nephew explained in her obituary, “Those were different


Frey 6

Hon. Annadale Curtis Keplinger Roberts 1928 County Probate Judge 1959-1973






Belle W. Gothelf Siegel 1928


elle Gothelf Siegel was born in Russia and moved to the United States at age seven. Her family initially lived in New York and later in Toledo, Ohio. Miss Willoughby, her debate teacher at Toledo Woodward High, thought she had the potential to be an attorney. The youngest of four children, Siegel was the only one to attend college. After completing one year of pre-law studies at the University of Toledo, Siegel enrolled at Ohio Northern and was a classmate of Annadale Curtis Roberts Keplinger. During law school, Siegel rented a room from Mrs. Stone with five other young women, all education majors, for $7.00 per week for room and board. She would hitchhike from Ada to her home in Toledo every two or three weekends. Siegel recalled that there was no dancing and no smoking permitted on the campus while she was a student and that she spent a significant amount of time studying. There was mandatory daily chapel which she had to attend, but since she was Jewish, did not participate. A Jewish family from Lima, the Benjamins, picked her up each Friday and took her to Lima for dinner. Of her law school experience, Siegel recalled being in a class of 15-20 male students and feeling that they resented her being there and didn’t take her seriously. She recalled one particular young man who provided her with chocolates every day until she realized he was giving her laxatives. After graduating from law school in 1928, Siegel was initially prohibited from sitting for the Ohio bar examination since she was not listed as a citizen. She recounts how Dr. Pettit took care of the problem and within a week she was permitted to sit for the examination. Siegel went on to practice law with Miller and Miller in Toledo, where she worked with contracts and wills. She later sat for the Michigan bar examination and practiced with Lockhead and Kenny in Detroit doing bankruptcy work. She recalled making $30 per week, which was significant since “a lot of married men made that” and she was a single young woman. Her wages were reduced to $10 per week during the Depression, yet she was still able to save up and buy a brand new Chevrolet in 1934 for $750! Siegel continued to practice law after marrying Al Siegel in 1935. When her husband’s business, Great Lakes Hotel Supply, began to lose many employees as a result of the draft for World War II, Siegel left the practice of law in 1942 to assist in the management of the business. She spent two years running their office in Cleveland before returning to Detroit and continuing with the company until her retirement at age 65. When asked how her life would have been different if she hadn’t gone to law school, Siegel noted she probably would have been a stenographer or bookkeeper. Another Ohio Northern alum, Esther Antin Untermeyer (LLB’15), was friendly with her parents and Siegel said she strongly influenced her decision to become an attorney. Siegel, who turns 101 in October, currently resides in Southfield, Michigan.

The Writ Fall 2007



Mozelle M. McElroy Thomas Idoine 1930 Recognized for her Work with Children


ozelle McElroy Thomas Idoine was a native of Ada and met her husband, O. Lee Thomas (LLB’28), while studying law at ONU. They married the day after he graduated and she received her law degree two years later. After graduation, she practiced with her husband near Canton, Ohio, until his death in 1944. She also worked for the city relief department and the Family Service Society in the early 1930s. During this time, she raised two sons, O. Lee Thomas, Jr. and John W. Thomas (BA’58). Idoine then One of a few women spent seven years as a probation officers in the divorce case investigator nation who is also an before becoming girls probation officer for Juvenile attorney licensed Court of Stark County in to practice law. 1958. She ultimately retired as court liaison officer for the Stark County Board of Education. The Canton Repository featured her in their “People You Should Know” section on April 2, 1961, noting she had “the distinction of being one of a few women probation officers in the nation who is also an attorney licensed to practice law – a fact that serves her in good stead in some of the knotty personal and family troubles she encounters on her job.” The article detailed Idoine’s responsibilities in working with 35 girls a month to determine the cause of their delinquency, counsel with them, and try to keep them from continued delinquency. Idoine expressed her dedication to her role, “I don’t know of many other jobs where you can get so much satisfaction and appreciation when you help to straighten out a delinquent girl. In most of these cases, you save an entire family - and a life - and there is nothing more precious than that.”


1928 Curtis 8




Elena Ray Diller 1934 60 Years of Service to the Bar


Ruth Leuthold Deare 1930 A Lifetime of Community Service


uth Leuthold Deare passed the bar exam in 1932 and practiced law with her father, Alfred S. Leuthold, and her husband, Manfull A. Deare (LLB’32), in Bucyrus, Ohio. Manfull Deare was the first lawyer in New Washington, Ohio. Mrs. Deare served as secretary for the Crawford County Bar Association for many years, was a lifelong member of Good Hope Lutheran Church, a 50-year member of The Principatus Circle of King’s Daughters and Sons, a Red Cross Bloodmobile volunteer

“As a woman, you had to be well prepared. It was expected of you. But I never felt that I had to make up for my being a woman.”

lena Ray Diller attended law school from 1931-1934 as one of only three women in the entire school and the only woman graduate in her ONU law class. Born in Toledo, Ohio, her interest in the law was developed by her father, attorney Edward H. Ray. After graduation, she joined her father in his law practice, where he counseled the former Home Building Savings & Loan, which later became Toledo Home Federal Savings & Loan. She managed the practice on her own for the two years following her father’s 1936 stroke. After marrying fellow Ohio Northern graduate Wade M. Diller (LLB’34) in 1938, they formed the Law Offices of Ray & Diller. Her obitu–Elena Ray Diller ary in the Toledo Blade noted it was known as the city’s “only husband-and-wife law firm.” Their practice consisted of foreclosures, title examinations, and serving as the bank’s counsel. After Wade’s death in 1969, she continued to practice on her own, concentrating on real estate and probate work. She retired at age 84 and was recognized by the Toledo Bar Association in December, 1994, for 60 years of service. When she was featured in the Fall 1995 Writ magazine (Page 53), she advised new lawyers: “Anybody who goes into law practice should associate with members of the bar. You will receive valuable advice, and they will provide a good influence.” She was a member of the Toledo, Lucas County, Ohio State and Toledo Women’s Bar Associations, the Zonta Club of Toledo, Monroe Street United Methodist Church and many community organizations. She was the first recipient of the Arabballa Babb Mansfield Award given by the Toledo Women’s Club. Diller was featured in the ONU Alumni Magazine in 1991 (Vol. 51, No. 3, November 1991, Page 47), where she is quoted as saying, “At the time I was admitted to the bar, only about one percent of those practicing law were women.” She did not suffer from the prejudices of others, “As a woman, you had to be well prepared. It was expected of you. But I never felt that I had to make up for my being a woman.” Diller returned to campus for her 50th class reunion. Diller’s daughter, Ann, is also an Ohio Northern graduate, earning her BSEd from Ohio Northern in 1968.

The Writ Fall 2007


Governor Michael V. DiSalle on February 2, 1959 to serve out the unexpired term of the sitting probate judge who moved to the Second District Court of Appeals. When she ran for Judge of the Probate Court in 1960, the term of office was 6 years with an annual salary of $10,215.16. She was the second woman to be elected to office in Champaign County and served as probate and juvenile court judge until 1973. Judge Roberts was listed in Who’s Who in Ohio in 1970 and in the Bicentennial Edition of Outstanding Americans. Her first husband, Karl C. Keplinger graduated from Ohio Northern’s Pharmacy College in 1929.

“Anybody who goes into law practice should associate with members of the bar. You will receive valuable advice, and they will provide a good influence.” – Elena Ray Diller 9


She [Dorsey] was “a devoted and conscientious practitioner of the law”

and a member of the Bucyrus Community Hospital Association. Berneice Layton 1930 Arvilla Pratt Dixon 1930


Jeannette Elliott Critchlow 1934 Jeannette Elliott Critchlow practiced law in Columbus for several years.

Mary V. Wolfrom 1935 ary V. Wolfram was Ada’s first woman lawyer, with an office at 209 North Main Street.


BETTY V. COOKE 1940 etty V. Cooke was a practicing attorney in Bowling Green, Ohio from 1940 until her retirement in 1989. According to her obituary, she traveled around the world giving lectures in French and English. She was a life member of Soroptimist Club and a member of Trinity United Methodist Church, Rebekah Lodge No. 744, Tontogany; Beta Gamma of Gamma Phi Beta; International Platform Association.


PAULINE CAMPBELL COLE 1942 Lillian Anne Bergman Trueblood 1948

Layton Wolfrom Pratt 1930

Sarah “Sally” Charlotte Brown Duncan Dorsey 1936 50 Years of Service to the Bar arah Duncan Dorsey passed the Ohio bar examination on February 11, 1938, and opened the Duncan Law Firm in Greenfield three months later, specializing in probate work. The firm later became Duncan and Phillips Law Firm when her nephew, Ralph W. Phillips (BA’57/JD’58), joined the practice. Dorsey also served as legal counsel and law director for the city of Greenfield and was very active in local and state bar activities. She was a member of the Highland County Bar Association where she served as secretary-treasurer, vice president, and president, and in the Ohio State Bar Association, where she served on the Real Property Committee and the Board of Governors. Dorsey was also involved with the Business Women’s Association, Greenfield Historical Society, Daughters of 1812, Daughters of the American Revolution, and the First Presbyterian Church in Greenfield. She was featured in the ONU Alumni Magazine in 1988 (Vol. 48, No. 4, Summer 1988, Page 28) where it was noted she had been warmly welcomed as Greenfield’s first female lawyer. Fellow women attorneys in Columbus had warned her, “It would be tough, that the community wouldn’t support me, that it was still a man’s profession.” Dorsey’s experience in Greenfield was quite the opposite, “There wasn’t a law office in Highland County that I couldn’t walk into and get help.” She was recognized by the Ohio State and Highland County Bar Associations for 50 years of dedicated service. Highland County Court of Common Pleas Judge Darrell R. Hottle noted she was the second woman in Highland county to practice law for 50 years. The Highland County Bar Association issued a proclamation in her honor dated February 11, 1988, which noted she was “a devoted and conscientious practitioner of the law” with a “high standard of ethics” who was “highly regarded by both the Bench and Bar of Highland County” and an “honored, esteemed, and highly respected citizen of Greenfield, having served in support of its civic, fraternal and governmental functions as well as an attorney for fifty years.”






ollowing graduation, Judge Elaine McElroy Mayhew joined her husband, Capt. Frederick E. Mayhew (A&S’42/ JD’47) with the Army Air Corps in Midland, Texas. She later established her law practice in Mount Vernon, Ohio, in 1949, and was elected in 1954 as Knox County Probate and Juvenile Judge, where she served three six-year terms until retirement in 1972. Ohio Northern conferred an honorary LLD degree to Judge Mayhew on October 6, 1973, during its dedication of the new $1.3 million facility. The ceremony included a dedication address by Associate Justice of the U.S. Supreme Court, Harry A. Blackmun. Mayhew was a former president of the Knox County Bar Association and honorary member of Delta Kappa Gamma. She was also a member of the Children’s Services Board, Mount Vernon City Health Board, Mount Vernon Public Library Board, and Business and Professional Women’s Club. Mayhew was recognized by the Mount Vernon Chamber of Commerce with the Woman of the Hour Award in 1972. Judge Mayhew was a native of Ada, where her father, Dean McElroy, was the proprietor of the campus restaurant. Her son, Rick, received his law degree from ONU in 1970.

Fellow women attorneys in Columbus had warned her [Dorsey], “It would be tough, that the community wouldn’t support me, that it was still a man’s profession.”


The Writ Fall 2007



Hon. Elaine McElroy Mayhew 1943 Received Honorary Degree from ONU


Barbara Rizor advises… Prospective law students should take English and writing courses to prepare for the practice of law because “you are judged by the written word.” Her advice to new female attorneys, “Always be prepared. Don’t look around to see if you are going to be slighted.”

Trueblood 12





Barbara E. DaPore Rizor 1948 A Woman of Many Firsts

arbara DaPore Rizor, along with classmate Lillian Trueblood, finished with distinction at the top of the 1948 graduating class and were the only two women in the class. Rizor passed the Ohio bar and spent her entire career in Lima, Ohio where she continues to live. She became the first woman attorney in Allen County, the first woman jurist in Allen County, and the first woman president of the Allen County Bar Association. Following graduation, she joined the criminal defense firm established by Francis Durbin in Lima, which included Ernest S. Navarre (LLB’14). The firm became known as Navarre and Rizor after she became partner in January, 1950. She continued to run the law firm after Navarre died in 1963, the same year Rizor’s husband also passed away. She continued to practice until her retirement at age 65. She also served as acting judge of Municipal Court for two years. Rizor was featured in The Cincinnati Enquirer on October 12, 1952, as the first woman ever to try a first-degree murder case in Hamilton County. Rizor’s father decided at a young age that his eldest child would go to law school, and specifically to Ohio Northern. After finishing preparatory education at Albion College (Michigan), Rizor enrolled at ONU in 1945. While in law school, she also served as the secretary for Dean Claude W. Pettit. One of her instructors was Elaine McElroy Mayhew MRS. PAUL E. RIZOR OF LIMA, O. (LLB’43/LLD’73), who taught Common Law Pleadings. …Ohio jury charmer Interest in the legal profession runs in her family. Rizor met her husband, Paul H. Rizor (LLB’49) on the first day of law school. They ultimately both practiced in Lima, but in separate firms. He passed away in 1963. Her brother, Joseph C. DaPore (JD’54) practiced with her for awhile. Her son, Paul D. Rizor (BA’73/JD’76) and nephew, Joseph E. DaPore (BA’73/JD’76), are attorneys in Lima and Charleston, South Carolina, respectively. Rizor was featured in the ONU Alumni Magazine (Vol. 35, No. 1, March 1974, Page 8), where she explained balancing her professional obligations with raising two children, “you have to give an extra effort so you don’t get lost in the shuffle,” but felt her gender was no detriment to drawing a clientele. Rizor’s eyes still light up when talking about some of her career highlights, which included several high profile cases handled by her firm, among them the highly publicized Forsythe murder case in Lima where the body was never found. She is most proud of being able to help people throughout her career, noting she always worked with the downtrodden. When asked if she ever second-guessed her decision to become an attorney, Rizor vehemently responded, “Nope, it was too late!” Rizor advises prospective law students to take English and writing courses to prepare for the practice of law because “you are judged by the written word.” Her advice to new female attorneys, “Always be prepared. Don’t look around to see if you are going to be slighted.”

Rizor became the first woman attorney in Allen County, the first woman jurist in Allen County, and the first woman president of the Allen County Bar Association.

The Writ Fall 2007


Irene Nichols 1949


Bettye L. Miller Russell 1949 Three Generations of ONU Law Alumni


Bettye Miller Russell’s family includes three generations of Ohio Northern law alumni.

ettye Miller Russell’s family includes three generations of Ohio Northern law alumni. She married classmate, John T. Russell (LLB’49). Her father E. W. Miller was also an attorney (LLB’28), as well as sons, Michael S. Russell (JD’77) and Marc Russell (JD’79). During 1948-49, only 3 women enrolled in law school and only one continued to graduation, Bettye Russell. Russell volunteered for many years at Aultman Hospital and with Meals on Wheels, and was a member of College Club, Eastern Star, and Gourmet Cooking Club.

Ohio Northern became the second institution to form a law school in Ohio when its law department opened in 1885.


TIMELINE 1895 – Implemented 3year program and LL.B. degree

1885 – Law department begins, tuition $30/year



of important dates in the history of the ONU College of Law 1896 – First female graduated, Lenora Bogguss Wilcox Mason

1901 – There were 24 graduates

1905 – Second woman graduated, Anna B. Short

1920 – Two women entered the law school following the approval of the nineteenth Amendment



SAMPLE COURSES 1924-27 First year Torts, Contracts, Personal Property, Domestic Relations, Agency, Bailments, Sales, Partnership, Quasi-Contracts, Crimes & Procedure, Damages

Second year Public Speaking, Real Property, Private Corporations, Jurisprudence, Bankruptcy, Wills, Negotiable Instruments, Conflict of Laws, Trusts, Municipal Corporations, Suretyship, Decedents Estates

Third year Equity, Constitutional Law, Evidence, Pleadings, Wills, Legal Ethics

1945-1947 First year Torts, Contracts, Personal Property, Commercial Law, Pleadings, Sales, Real Property, Agency, Criminal Law

We are continuing to collect information on these remarkable women.

Second year Constitutional Law, Equity, Partnership, Private Corporations, Evidence, Negotiable Instruments, Real Property, Wills, Trusts

If you have any information on them, please send to the COLLEGE OF LAW, Attn: Mindi Wells or

Third year Trusts, Code Pleadings, Conflicts, Suretyship, Legal Ethics, Damages, Trial & App., Domestic Relations, Trial Practice, Mortgages, Municipal Corporations, Administrative Law

1923 – First law building created, later known as the Huber Building

1927 – Two years of college required before admission; tuition $50/quarter 1932 – 58 law students enrolled, 3 were women

1933 – First Barrister’s Ball was held, the second year dancing was allowed on campus

1934 – ONU became a charter member of the League of Ohio Law Schools

1950 – 143 students, two were women

1939 – ONU became recognized by the American Bar Association

The author expresses thanks to Craig H. Clark (JD’08), Andrea Ciampaglio, and Paul Logsdon for their research assistance. The Writ Fall 2007



College of Law Commencement May 13, 2007



Continued on Next Page



he College of Law celebrated its 2007 commencement ceremony on May 13, 2007, with approximately 103 graduating students earning juris doctor degrees. In addition to the juris doctor degrees, ONU also conferred LL.M. degrees to 11 lawyers from transitional and emerging democracies that had completed a yearlong course of intensive study in the Democratic Governance and Rule of Law program.

INVOCATION OFFERED BY GREGORY P. JONES (JD’07): Father, God. We are truly thankful to celebrate this special occasion in the lives of our 2007 law school graduates. We are honored by your presence with us today and we rejoice in your unfailing love, for surely you have walked with us through the challenges and demands of law school. We are thankful for our family, friends, ONU faculty and staff, who freely gave their time, talent, and resources to help us accomplish these goals and ambitions. We are especially thankful for our mothers, on this Mother’s Day, for their encouragement and endless love. Thank you, Lord. And Father, we pray that you continue to shine your favor on Ohio Northern University and everyone participating today. And may this law school class of 2007 use their juris doctor degrees to glorify you on earth with service to others. –Amen.

Ms. Cook’s speech centered on a Maya Angelou poem titled Alone. The poem reads in part…

“Now if you listen closely, I’ll tell you what I know. Storm clouds are gathering, the wind is gonna blow. … nobody, but nobody can make it out here alone.” –Maya Angelou The Writ Fall 2007



Deanna R. Cook of Alger, Ohio, who ranked academically at the top of the graduating class, gave the student address, and Dean David C. Crago, provided further remarks. Graduating student Gregory P. Jones of Columbia, South Carolina, gave the invocation and classmate Kristen A. Vogtsberger of San Antonio, Texas, gave the benediction. Featured vocalists were graduating law student Donald N. Hannah of Alexandria, Indiana, and Givi Kutidze, an LL.M student from Tbilisi, Georgia. Dean Crago, assisted by members of the tenured law faculty, placed the academic hood upon the candidates, who were then presented with their diplomas by President Kendall Baker. Richard Cordray, Ohio Treasurer of State, delivered the commencement address. Elected in 2006, he manages all banking functions for the state of Ohio and an investment portfolio averaging

$11 billion. Cordray has served as Franklin County Treasurer, as a state representative and as Ohio’s first state solicitor. An attorney by profession, he argued six cases before the U.S. Supreme Court and taught for 15 years at Ohio State’s law school. Thomas F. Bryant was awarded an honorary degree from Ohio Northern University during the commencement ceremony. Bryant, who earned his law degree from Ohio Northern in 1966, served for 18 years on the Ohio Third District Court of Appeals from 1988 to 2006.

Gregory P. Jones

Deanna R. Cook

During the last three years, we have formed enduring friendships that will serve, in part, as the foundation for future successes. We will meet new friends and mentors along the way who will encourage us and ensure that we are never alone. – DEANNA R. COOK (JD’07) 18



Ohio Northern University College of Law Graduates Surpass the National Employment Rate Six Years In A Row BY CHERYL A. KITCHEN



marks the 33rd consecutive year that NALP, the National Association for Law Placement, has compiled annual statistics on the employment rate of law graduates throughout the United States. Nationally, for the second time in six years, NALP has reported an overall employment rate increase. For the first time since 2000, the national employment rate has topped 90% with a national rate of 90.7% employment rate for the Class of 2006. Ohio Northern University College of Law has continued to have an employment rate of 90% and above since 2001. The Class of 2006 for ONU had a placement rate of 95%. An interesting statistic is on the timing of these job offers. The 2006 graduates reported that 30% landed their job before graduation, 18% landed a job after graduation but before their bar results, and 52% landed their job after the bar results. The statistics for the 2007 graduating class will not be gathered until

nine months after graduation. The 95% employment rate for the Class of 2006 was an increase over the 93% for Ohio Northern’s Class of 2005. Although, NALP statistics show a slight increase in the legal employment economy, Ohio Northern continues to maintain employment rates higher than the national average. This employment rate is due to the hard work and tenacity of the

students, along with the help and support of the faculty and alumni, as well as the continued efforts of the Career Services Office. These efforts, along with the current employment success of our alumni, continue to help strengthen the status of the law school among employers and increase the demand for our students. The growing recognition of the quality of our students is demonstrated by the Continued on next page





50 EMPLOYERS CONDUCTED ON-CAMPUS INTERVIEWS. increasing number of employers using the Career Services Office to recruit students. Over 600 employers from across the country post job announcements with our office. In addition to posting job announcements with our office, this past school year over 50 employers conducted on-campus interviews at Ohio Northern and another 35 employers participated in our resume collection program. These employers come from all segments of the legal profession including federal judges, The American Lawyer’s 100 top corporate firms, government agencies, public interest organizations, and corporations. Our students represent over 40 states and their job searches span nationwide. The placement statistics for the Class of 2006 show the diversity of employment not only in areas of the legal practice, but also in the employment of our students throughout the country.

CLASS OF 2006 PLACEMENT STATISTICS AREAS OF THE COUNTRY Mid-Atlantic ......................................7% East North Central .........................43% South Atlantic .................................27% East South Central ............................8% West South Central ...........................4% Mountain .........................................5% West North Central ...........................5% Pacific ...............................................1% Salary Range $25,000 to $120,000

Even though the legal market continues to be slow, we have been successful. We still need to draw upon our alumni network to uncover job leads for our students and graduates. If you can assist us in uncovering job leads for our students and graduates, please let us know. You can do this by calling directly at (419) 772-2249, faxing us at (419) 772-1487, or emailing the office at

Class of 2006



Public Interest


4% Judicial Clerkships



12% Private Practice

53% Government


If you can assist us in uncovering job leads for our students and graduates, please let us know. 20


Entering Class of 2007 LAW ADMISSIONS




hio Northern University Pettit College of Law seeks a student body with a broad spectrum of backgrounds, cultures, life experiences and interests. Diversity is of paramount importance in a law school, where perspectives need to reflect the wide array of ideas, viewpoints and experiences of our society-at-large. Our nationally recognized faculty not only trains its multitalented student body to analyze and interpret the law, but to consider competing viewpoints

The Princeton Review’s Best 159 Law Schools, 2006 Edition, lists Ohio Northern University Law as having the sixth most competitive law students in the nation. and to pose persuasive arguments in a variety of forums. Our law students are among the most serious law students in the nation and are being prepared for practice in any jurisdiction. The Princeton Review’s Best 159 Law Schools, 2006 Edition, lists Ohio Northern University

College of Law as having the sixth most competitive law students in the nation. The quality and reputation of our program continues to grow as a result of our JD students’ scholarship and contributions to the legal field. The entering Class of 2007 promises to be one of the most

2007 Ohio Northern College of Law Class Students in the 2007 entering class hail from 27 states:

Pennsylvania New York Kentucky Indiana Illinois Alabama Florida Georgia Michigan Montana New Jersey Tennessee Nebraska District of Columbia

The Writ Fall 2007

Alaska Delaware Texas West Virginia North Carolina Minnesota Washington Utah Missouri Massachusetts South Carolina Wisconsin Colorado Ohio



40% of 2007 entering class is from Ohio 60% of 2007 entering class is out-of-state



The 116 first year students hail from 27 states and the District of Columbia and received their bachelor’s degrees from nearly 90 colleges and universities throughout the nation including institutions such as Cornell University, George Washington University, Boston University, Howard University, Northwestern University, Washington and Lee University, The Citadel, Ohio Northern University, Franklin and Marshall, Colby, Centre, Allegheny, Gettysburg, Kenyon, Rhodes, Smith, Dickinson and Clark (Massachusetts). academically talented classes in the history of the law school. Over fourteen hundred applications were carefully reviewed in selecting the members of the 2007 entering class. The 116 first year students hail from 27 states and the District of Columbia and received their bachelor’s degrees from nearly 90 colleges and universities throughout the nation including institutions such as Cornell University, George Washington University, Boston University, Howard University, Northwestern University, Washington and Lee University, The Citadel, Ohio Northern University, Franklin and Marshall, Colby, Centre, Allegheny, Gettysburg, Kenyon, Rhodes, Smith, Dickinson and Clark (Massachusetts). Although the majority of entering students is traditionally-aged and has recently graduated from a bachelor’s program, the age range is 21-50. The percentage of minority students has significantly increased, and the gender ratio continues to be approximately 50:50. Collectively these 120 outstanding individuals contribute to the dynamic per22

In addition to the more traditional pre-law majors in history, political science, criminal justice and English, a variety of undergraduate majors are represented including: Accounting Anthropology Biology Business/Commerce Business Management Communications Computer Engineering Economics Environmental Studies Fine Arts Finance French Government Human Development and Family Studies Journalism Liberal Arts Literature Marketing Mechanical Engineering Mining Engineering Management Information Systems Performing Arts Philosophy Physics Psychology Real Estate Sociology Spanish

sonality of the Pettit College of Law community. Law Admissions is committed to the mission of seeking students who are capable of undertaking the rigorous study of law and will uphold the highest standards as citizens and future lawyers. The Fall 2007 entering class is showing great promise not only in continuing a rich history and tradition of excellence at ONU Law, but in demonstrating great potential for being “architects of justice” in a complex and dynamic society. 2007 entering class members have held a variety of jobs including: paralegal, congressional intern, financial analyst, certified EMT, phlebotomist, reporter, editor, assistant photographer, research assistant, banker, lifeguard, teacher, coach, waiter, counselor, therapist, loan officer, nanny, construction worker, and dental hygienist.


Taggart Law Library Remains Busy BY NANCY A. ARMSTRONG




ooking back, the past year has been a busy one at the Taggart Law Library. It all started in the summer of 2006, when the library undertook a large-scale book shift. Many historical and lesser-used items were put in new compact shelving in the basement, and significant parts of the collection were rearranged. These changes will create much needed space in areas of the collection that are growing, and we hope that they will also make the collection easier to use. The library provided a variety of services to students throughout the school year. In late August and early September, the librarians gave library tours to more than 90 first-year students to familiarize them with the print sources that they would be using during the fall semester. In addition, the library offered over 80 legal research workshops during September and October to reinforce material taught in the first-year legal research and writing program. Tours and instruction sessions were also provided to the new LL.M. students and to incoming law review staff editors. Support for upper-level seminar classes was provided during both semesters through research guides and in-class research presentations. And, as usual, the library reference desk was busy throughout the year with a wide variety of research questions, including legal research and writing assignments, seminar papers, the annual federal tax research assignment, and law review source and cite checks, to name a few. Early in November, a site inspection team from the American Bar Association (ABA) visited the law school and library. Throughout the summer and fall, the entire library staff completed questionnaires, wrote reports, compiled statistics, and organized the library to prepare for the inspection team.

Three first-year students search for the answers to a legal research exercise. Every fall, the library is filled with new law students trying to learn the intricacies of finding the law. Through a collaboration with the Christian Legal Society, the library also launched a legal movie collection this past year. This collection features classics such as To Kill a Mockingbird as well as newer favorites like A Few Good Men, and has grown to include over 15 movies through purchases and donations. Finally, the library implemented new technology throughout the year to assist both students and faculty. The new Willis Room was outfitted with a flat screen TV and DVD/VCR and has been used extensively for seminar classes and other presentations. New digital camcorders and portable DVD players were purchased to enable students to more easily record and view their preparations for class projects and moot court competitions. In addition, several new subscription services were added, including ExpressO, which allows faculty members to easily submit manu-

A typical carrel at the Taggart Law Library becomes a student’s “home away from home.” Every library carrel is wired for electricity and Internet, and the wireless network is available throughout the library. The Writ Fall 2007

scripts to law reviews electronically, and Atomic Learning, which provides webbased tutorials for more than 100 different software applications and is available to students, staff, and faculty.

Library Programs and Services Fall 2006 1-L Legal Research Workshops 80 Sessions 1-L Library Tours 20 Sessions New Student Orientations 5 Sessions International LLM Student Research Sessions 5 Sessions Law Review/Moot Court Research Sessions 3 Sessions Upper Division Seminar Research Presentations 3 Sessions Admission Tours 3 Sessions


College of Law Activities

Homecoming 2007 HOMECOMING

Friday, October 5 9:00 AM Law Alumni Golf Outing & Luncheon Hawthorne Hills Golf Course Lima, Ohio 7:30 PM Law Alumni Reception Holiday Inn Lima Followed by dinner – Law Classes of 1977, 1987, 1997 (friends & guests welcome) co-hosted by Dean David C. Crago & Cheryl Kitchen, Director of Law Alumni & Career Services

Saturday, October 6 8:30-9:15 AM Dean’s Breakfast for Law Alumni & Friends Wishing Well at McIntosh Hosted by Law Deans, Professor Emeriti & Law Alumni Board 9:30-10:30 AM Tours of the Law School 10:30 AM (approximately) Homecoming Parade, Main Street, Ada 11:30 AM Law Alumni & Friends Tailgate Dial-Roberson Stadium 1:30 PM ONU vs. Mount Union Football Game ––––– There will be carnival rides, games, dances, tours of campus (by hay ride), food, outdoor & indoor concerts and many other forms of entertainment after the game and throughout Sat. evening.

Homecoming 2007 Homecoming is scheduled for October 5 – 7, 2007 and this year’s theme is:


Ethics, Professionalism & Substance Abuse CLE sponsored by Phi Alpha Delta Legal Fraternity and the College of Law Friday, October 5, 2007 1:00 p.m. Moot Court Room, College of Law $65 for 2.5 hours CLE credit

Registration form online or contact for information.

Sunday, October 7 9:30 AM The Sweethearts Brunch




2007-2008 class

2006-2007 class

he second class of LL.M. students at ONU will have a decidedly different perspective than the first group of students. While all of the 2007 graduates were from former Soviet or communist states, the new students come from a more diverse group of nations. Each of the eight new students comes from a different country, the average age is greater, and the range of experiences is broader. For example, one of the students is a sitting judge, another is helping draft her country's new constitution, and yet another is working closely with her nation's first lady on social reforms. Countries represented this year are: Bhutan, Tajikistan, Albania, Egypt, Kenya, Ethiopia, Eritrea, and Malawi.

he students in the first class of ONU's ground-breaking LL.M. in Democratic Governance and Rule of Law completed their year in Ada and returned home in May. The eleven students from 6 different countries successfully completed their studies, including a major research paper addressing a particular problem in their home country. Several of them returned to their former offices, in more senior positions, while others have secured new positions in law reform projects or are seeking new roles in their countries' continued efforts to build democratic institutions.




The students of the LL.M. program Oleksandar Kondratyuk, from Kyiv, Ukraine, was selected as the outstanding LL.M. student and presented the principal address at the University Honors Convocation in May. Givi Kutidze, from Tbilisi, Georgia sang at the graduation ceremonies for the law school. Olena Zadorozhna, also from Kyiv, Ukraine, was a member of Ohio Northern's successful international law moot court team, which placed 33rd in the world at the Shearman and Sterling Jessup Cup competition in Washington, D.C. in March. Pictures and accounts of the students' year in Ada can be found on the LL.M. website at







The Writ Fall 2007



Clinic Program Provides Valuable Experiences for Law Students


hio Northern University’s College of Law has been sponsoring clinical programs that provide assistance to the members of Allen and Hardin counties for over 30 years. Over 60 percent of the current law students have taken advantage of the opportunity to participate in a clinical program of their choice. Through this program, students receive academic credit and realworld experience as they practice lawyering under the supervision of attorneys. The oldest in-house clinical program is the Ohio Northern University Legal Clinic. The Clinic is located in Lima, Ohio and provides legal services to over 200 individuals per year. Cases primarily involve the representation of lower income and elderly clients on civil litigation matters such as divorce, social security, disability benefits, wills and consumer fraud. Through this representation, students are exposed to practical lawyering skills such as interviewing clients, negotiating settlement agreements, creating discovery plans and pleadings, drafting motions, preparing for and conducting


Motivating, Empowering, Revolutionary, Rewarding, Invaluable… hearings and trials and writing wills. Students also learn intangible skills such as how to deal with difficult clients, and how to work with other lawyers and judges. During the 2006-07 academic year, the students in the ONU Legal Clinic handled 140 cases

I chose to take the Lima Municipal Prosecution Clinic because I wanted hands on experience in the court room. Lima Municipal Courts have a somewhat heavy docket, which give students situated there more opportunities to sit first chair on trials, gain hands on experience and learn about what the job of prosecutor entails than other courts in the area. - SAMUEL PATRY (JD’07) 26

and regularly appeared in Allen and Hardin county courts, and the clinic fielded 316 inquiries for assistance. The Corporate Transactional Clinic provides clinical experience for students who plan to practice business law and are seeking hands on experience. The Transactional Clinic handles the incorporation of nonprofit organizations and preparation of the IRS filings necessary for the corporation to obtain taxexempt status. In addition, the students help the organization write its Code of Regulations and other documents that may be necessary to obtain the desired corporate status. This program has also established a relationship with the West Ohio Conference of the United Methodist Church. Students may assist local churches with their incorporation and answer legal questions pertaining to mergers, consolidation and risk management issues.

I took the Corporate Transactions Clinic. I selected it because I had the prerequisites and the scope of work seemed to fit with my background and aspirations. The Corporate Transactions Clinic provides the opportunity to assist churches and their affiliated notfor-profit organizations with real estate transactions, incorporation, and application for tax exemption. - GAYLON LOREN KRAVIG (JD'07)


- Jazmine Greer (JD'08)

The Bankruptcy Clinic encompasses two semesters and a summer. Starting either second semester of the second year with a placement with the bankruptcy judge or with the summer between the second and third years, the student is placed in one of three different externships: either with a bankruptcy judge, a bankruptcy trustee or a bankruptcy solo practitioner. In the third year, the student is placed in one of these positions each semester with the goal of acting as an extern in each of the three different positions by graduation.

My clinical experience exposed me to both civil and criminal law cases; an exposure that was beneficial to me because I was uncertain of the area of law in which I wanted to practice when I entered into my clinical program. While I am still considering both practice areas, it was educational to have the opportunity to differentiate between the issues and environment of each respective practice area.

Student Works with Over 250 Misdemeanor Cases


I believe that seeing the law from the perspective of the bench will assist any law student in becoming a better attorney in the future, therefore, I would recommend that an L1 consider participating in a judicial externship in their second year.

Students in this clinic perform research, writing and make court appearances. The Environmental Clinic is an externship with a non-profit environmental public interest organization located in Columbus. Students assist the organization with ongoing litigation as well as with lobbying activities and other research associated with the mission of the organization. Students get the opportunity to work not only with the in-house counsel for the organization, but also with the contract attorneys working on specific litigation. The Non-Profit Litigation Clinic gives students experience providing direct representation to clients under the supervision of a practicing attorney with a non-profit organization or a governmental entity, with approval by the Director of the Clinical Program. The Prosecution Clinic provides students with the opportunity to represent the state in criminal matters under the supervision of a local municipal prosecutor. These students have the option to appear in court and advocate for the state. The Public Defender Clinic provides students with the opportunity to represent criminal defendants under the supervision of a public defender. These students have the option to actively counsel clients, appear in court and advocate for their clients. The Municipal Government Clinic allows students to work directly with the village solicitors or for municipal law directors. These students attend counsel meetings, provide legal opinions to the counsel and its members, and assist in any litigation instituted on behalf of the counsel. The Judicial Externship is a program that offers students an opportunity to clerk for a judge in the U.S. District Court, U.S. Bankruptcy Court, Ohio Supreme Court, or Ohio Court of Common Pleas. If the student is placed with the Ohio Supreme Court, the student may be placed in the office of one of the justices or with one of the special issue offices. Students perform research, writing, and other court-related duties that the judge assigns.

James Parker Trulock (JD’07)

Bloomington, Indiana


t might surprise some people, but my best law school experiences have been off campus. During my last semester, I completed 6 credit hours of the Public Defender clinic at the Lima Municipal Court. Attorneys Bob Grzybowski (JD’89) and Stephen Chamberlain spent 224 hours working directly with me, and I personally represented defendants in over 250 misdemeanor cases. As a legal intern, I was responsible for representing my clients from the initial interview throughout the completion of their case which included pre-trial hearings, motion hearings, competency hearings, pleas, and trials. I argued four bench trials in front of two judges. Three of the trials were for 1st degree misdemeanors. I had two assault cases, one criminal damaging, and one persistent disorderly conduct. Each trial presented unique challenges. During my first trial, I was able to challenge the prosecutor’s ability to establish the elements of the offense. At another trial, I was able to present the affirmative defense of self-defense. Once, all I could do was argue reasonable doubt. My last trial required the use of a sign language interpreter for my alibi witness who was both deaf and mute. In the end, two of my clients were found not guilty, and I will never forget both how good I felt, and how genuinely appreciative they were for my help. My point is that you can’t gain that kind of real world experience by sitting in a classroom. I highly recommend that every law student participates in a clinic during their short time here at ONU.

- MOLLY BLAKE KATEN (JD'08) The Writ Fall 2007




John Buckley Addresses Tax Changes Since 1977 By Louis F. Lobenhofer PROFESSOR OF L AW


n the annual Woodworth Lecture on May 10, 2007, John L. Buckley, Democratic Chief Tax Counsel for the House Ways and Means Committee, spoke on Tax Changes Since Woodworth’s Time: Implications for Future Tax Reform. The lecture, which took place in Washington, D.C., in conjunction with the May meeting of the American Bar Association Tax Section, drew a distinguished audience of lawyers, professors, Tax Court judges, and friends of the late Larry Woodworth (BA’40). Buckley made it a point in his lecture to honor both the late Larry Woodworth and his mentor, Ward Hussey. Mr. Hussey was in charge of drafting tax legislation during Woodworth’s time, and he is revered by former and current tax mavens for the high quality of the drafting of tax legislation during his time. Hussey was present to receive Mr. Buckley’s praise and the applause of the audience during the lecture. Esther Woodworth (JD’82), Woodworth’s daughter and ONU law alumna, also received applause as the representative of the Woodworth family.

Mr. Buckley’s lecture was a success, both in the continuing discussion of tax policy and in keeping Ohio Northern before important tax professionals in the nation’s capital. Buckley pointed out that while federal tax revenues have remained nearly constant as a percentage of GDP, the tax system and our economy have changed greatly since Larry Woodworth’s time. General fund revenues, raised largely by individual and corporate income taxes, have declined from 61% of federal revenues in 1979 to 54% today, while payroll taxes have made offsetting increases. Social Security taxes have greatly exceeded expenditures since 1983, while general revenues have only paid for 80% of general fund expenditures for most of that time. When the retirement of the babyboomers hits in another ten years or so, the Social Security crutch that has tended to offset large general fund deficits will disappear with very seri-

Professor Louis Lobenhofer, John Buckley, Esther Woodworth, and Dean David C. Crago ous budgetary implications. As a result of changes made in the high volume of tax legislation since 1977, Buckley described the current tax system as being “more complex, with a narrower base, and more uncertain than in the past”. The complexity has been driven by several factors, but complexity has become a significant problem for both taxpayers and for those administering the tax system. Of particular note is the trend toward Congress using the tax code as a vehicle for spending programs. Tax legislation has narrowed the tax base both by removing low income taxpayers from the tax rolls and from lowering taxes on income from capital compared to taxes on income from labor. Buckley pointed out, however, that while we have lowered the tax burden on savings, our savings rate has decreased substantially. According to Buckley, new tax legislation has become so voluminous and frequent that we have almost returned to the situation before enactment of the 1939 tax code, when the entire

tax code was enacted in each Congress. Buckley expects that, particularly with the sunset provisions attached to significant tax provisions by recent Congresses, the flood of tax legislation will continue. Among the issues to be resolved are Social Security, both itself and its impact on the budget, and reform of the Alternative Minimum Tax. Significant tax reform, however, will prove to be difficult both because of political and structural impediments. The income tax will continue to be our main revenue source. Finally, arguments that tax structures will cause substantial economic growth will continue to be made, but will have less success than these arguments have had in recent years. Buckley’s lecture was a success, both in the continuing discussion of tax policy and in keeping Ohio Northern before important tax professionals in the nation’s capital. You will be able to read Buckley’s comments in full in the ONU Law Review for 07-08.

Ward Hussey and John Buckley



“The Sordid Business of Democracy” THURSDAY, SEPTEMBER 21, 2006

Prior to arriving at the Moritz College of Law, Daniel S. Tokaji was a staff attorney with the ACLU Foundation of Southern California. In his eight years as an ACLU attorney, Professor Tokaji litigated a variety of civil rights and civil liberties cases, in the areas of free speech, racial justice, voting rights, disability rights, poverty rights, and immigration. Professor Tokaji now serves on the board of the ACLU of Ohio. Professor Tokaji's DANIEL S. most recent publication is TOKAJI "The Paperless Chase: Electronic Voting and Democratic Values," 73 Fordham Law Review 1711 (2005), which addresses the controversy over voting technology and the issue of whether to require a contemporaneous "paper trail" for electronic voting. Professor Tokaji is also the author of a daily web log called "Equal Vote," which focuses on election reform and the Help America Vote Act. Daniel P. Tokaji earned his J.D. from Yale Law School, where he was an editor of the Yale Law Journal and a director of the Disability Law Clinic. He graduated summa cum laude from Harvard College with an A.B. in English and American Literature and Philosophy. Areas of expertise include election law, civil rights, freedom of speech, disability rights, federal courts, and civil procedure.

“The Transformation of the U.S. Rulemaking Process-For Better or Worse” THURSDAY, FEBRUARY 22, 2007

Prior to joining the faculty at Washington College of Law, Jeffrey Lubbers taught at the University of Miami School of Law, Washington and Lee University School of Law, the Georgetown University Law Center, Melbourne University, Ritsumeikan University Law School in Japan, and the University of Ottawa. JEFFREY S. He earned his A.B. degree LUBBERS

The Writ Fall 2007

from Cornell University and his J.D. from the University of Chicago Law School. Professor Lubbers also served in various positions with the Administrative Conference of the United States (ACUS). He co-authored ACUS' major 1992 study, The Federal Administrative Judiciary and was a contributing author of the first edition of the Guide to Federal Agency Rulemaking. Professor Lubbers has also published numerous articles on the administrative process, and has participated frequently in training programs for government official in the U.S. and overseas. He teaches courses in Administrative Law, Environmental Law, Federal Legal Institutions, and ADR.

“Trends in the Admissibility of Scientific Evidence in Criminal Cases” THURSDAY, MARCH 8, 2007

Recognized by the New York Times as an “expert on scientific evidence,” Paul Giannelli has lectured throughout the county and his work has been cited in hundreds of court opinions and legal articles. He is the coauthor of nine books including Understanding Evidence 2d Ed. 2006), and Courtroom Criminal PAUL C. Evidence (4th ed., 2006). GIANELLI Professor Giannelli has been on the faculty at Case Western since 1975. Professor Giannelli earned his B.A., summa cum laude, from Providence College, and his J.D. from the University of Virginia. He has also earned his M.S. in Forensic Science from George Washington University; his Fellow in Forensic Medicine from the Armed Forces Institute of Pathology, Washington, D.C.; and his LL.M. from the University of Virginia. Paul Giannelli serves as co-chair, ABA Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process and as Reporter, ABA Criminal Justice Standards Task Force on DNA Evidence.


Dean’s Lecture Series Features Prominent Academics


September 21, 2007 PETER YU Kern Family Chair in Intellectual Property Law & Director, Intellectual Property Law Center, Drake University Law School

October 4, 2007 SUSAN ROSEACKERMAN Henry R. Luce Professor of Jurisprudence, Law and Political Science, & Codirector, Center for Law, Economics, and Public Policy, Yale University

February 18, 2008 DANIEL J. ROHLF Associate Professor of Law & Director of Pacific Environmental Advocacy Center, Lewis & Clark Law School

Dean’s Lecture Series events are free and open to the public. 29

Mayer Presents Libertarian Constitutional Theory



he College of Law’s branch of The Federalist Society presented a lecture on September 18, 2006, by Professor David Mayer from the Capital University School of Law celebrating “Constitution Day.” Mayer spoke to an audience of over 55 students and close to a dozen university faculty members on the topic of “a libertarian theory of constitutional interpretation.” Mayer contended that by failing to take a “contextual” approach to the Constitution, both liberals and conservatives expose themselves to significant criticisms. In perhaps his most keen set of observations, Mayer argued that liberal constitutionalism fails to respect our federalism visa-vie state power grant-

Mayer closed his discussion by contending that numerous cases in the common law recognized that due process was not understood to be simply procedural. This comment caught the attention of several professors and resulted in a spirited exchange. Because libertarian constitutional theory is a significantly


ed through the 10th Amendment. On the flip-side, Mayer argued that conservative constitutionalism fails to acknowledge unenumerated rights, like the right to “liberty,” that are reserved to the people via the 9th Amendment.

minority viewpoint in the field of constitutional study, Mayer’s lecture provided an excellent opportunity for individuals from both sides of the aisle to examine an alternative argument that does not require a complete rejection of a previous perspective on constitutional interpretation.

Mayer contended that by failing to take a “contextual” approach to the Constitution, both liberals and conservatives expose themselves to significant criticisms.

Cody Speaks on Roe v. Wade


n October 24, 2006, the Christian Legal Society presented a lecture by Ms. Dana Cody, the Executive Director of Life Legal Defense Foundation, to an audience of over 150 students and faculty. The talk was entitled “Why Roe v. Wade will be Overturned: A Woman’s Perspective” and examined the legal basis of the Roe v. Wade ruling, which was followed by a lively question and answer session. “Since 1973, America has stopped valuing human life,” said Cody. In her presentation, Cody argued that the legality of abortion was not an issue that the Supreme Court should have decided; it is a state issue. Cody believes that this reflects that the Supreme Court justices of 1973, the year Roe v. Wade was settled, were politically motivated and practicing judicial activism. With this legislative decision, the Supreme Court overruled all


technology, lawyers could prove that the unborn fetus is alive. With such a case, Cody states that it is likely that the Supreme Court would make the legality of abortion a state issue. Cody received her J.D. in 1993 from Western State University while working for a criminal defense attorney to learn about defending the first amendment rights of pro-life activists. She accepted a postgraduate fellowship with the


state laws on abortions, citing the 14th Amendment to justify overturning these laws. Cody further supported her argument by contrasting the technology in 1973 with the technology of today. If the right case addressing abortion reached the Supreme Court today, Cody believes that through the use of

Rutherford Institute, which works to protect religious liberty and free speech rights. In 1996, Cody took a position as board member of Life Legal Defense Foundation, becoming Executive Director in 1997. Currently Cody serves as a Judge Pro Tem for Sacramento County Small Claims and Traffic Court and as an adjunct professor at Trinity Law School in Santa Ana, California.

In her presentation, Cody argued that the legality of abortion was not an issue that the Supreme Court should have decided; it is a state issue. OHIO NORTHERN UNIVERSITY COLLEGE OF LAW



he Ohio Northern University College of Law was proud to host Professor Akhil Reed Amar as its guest speaker for the 2006 Kormendy Lecture. His presentation, “Ohio and the Electoral College: Past, Present and Future,” focused on the history of the electoral college and the “Amar Plan” for reforming the presidential election process. The plan would ensure that the President is chosen by national popular vote without requiring an amendment to the constitution. Amar is the Southmayd Professor of Law and Political Science at Yale University,

where he has been on the faculty since receiving his JD from Yale Law School in 1984. He teaches Constitutional Law I and Reading the Constitution: Method and Substance. In 1994 he received the Paul Bator award from the Federalist Society for Law and Public Policy, and in 1997 he was awarded an honorary doctorate of law by Suffolk University. Amar is the co-author of a leading constitutional law casebook, Processes of Constitutional Decisionmaking. He is also the author of several books, including The Constitution and Criminal Procedure: First


Ohio and the Electoral College: Past, Present and Future AKHIL REED Principles (Yale Univ. AMAR Press, 1997), The Bill of Rights: Creation and Reconstruction (Yale Univ. Press, 1998), and most recently, America’s Constitution: A Biography (Random House, 2005), which was the winner of the ABA Silver Gavel Award. The Kormendy Lecture was established through an endowment from the estate of Helen B. and Dr. Steven Kormendy, (JD’28/LLD’85). For the past 18 years, this endowment has brought prominent legal scholars to the ONU campus to address matters of law in a public forum.

Issues in Wrongful Convictions


rofessor Mark A. Godsey discussed “Issues in Wrongful Convictions” in the Ohio Northern University Pettit College of Law Moot Court Room on March 19, 2007. Joining Godsey was Melinda Elkins, an Ohio woman whose husband was convicted in the 1998 murder of her mother. Elkins spent years trying to prove her husband’s innocence by collecting evidence and DNA. Her husband was freed in 2005. Godsey and Elkins’s work on this case was featured in a piece entitled “Killer

Instinct” on the March 11 edition of Dateline NBC. Godsey, professor of law and faculty director at the Lois and Richard Rothensal Institute for Justice/Ohio Innocence Project at the University of Cincinnati, discussed his experience working with the Innocence Project. As a federal prosecutor, Professor Godsey supervised FBI investigations, presented cases to federal grand juries, conducted jury and bench trials, and argued numerous appeals before the United States Court of Appeals for the Second Circuit. He prosecuted

Godsey and Elkins’s work on this case was featured in a piece entitled “Killer Instinct” on the March 11 edition of Dateline NBC.

several cases that received national media attention, and received several awards for his performance as an AUSA, including the Director's Award for Superior Performance, presented to him by then Attorney General Janet Reno, and a major award from the FBI. Recent high profile cases include that of Clarence Elkins (exonerated by DNA and released from life sentence for murder and double rape) and Chris Bennett (released through DNA evidence from imprisonment for aggravated vehicular homicide). In 2004, he received a Superstar of Criminal Law Award by the Ohio Association of Criminal Defense Lawyers. Godsey is a regular commentator on issues relating to criminal law in both the local and national press. He is frequently interviewed by local

Mark Godsey and Melinda Elkins television news, and has appeared nationally on Larry King Live, Court TV news, NPR and A&E’s American Justice, among others. He has been quoted in papers and magazines across the country, including The New York Times and Newsweek.

Voting Rights Discussed


he Ohio Northern University American Constitution Society sponsored a presentation entitled "Voting Administration and the Constitution After Bush v. Gore" on February 20, 2007, in the Moot Court Room in the Pettit College of Law. The presentation featured Richard Saphire, Professor of Law at the University of The Writ Fall 2007

Dayton and Paul Moke, Professor of Criminal Justice and Political Studies at Wilmington College, who spoke on their experiences serving as co-counsel on Stewart v. Blackwell, where the ACLU of Ohio challenged Ohio's dual balloting system under the 14th Amendment and the Voting Rights Act.

Richard Saphire and Paul Moke



Diversity Forum Focuses on the Decline of Minorities in the Legal Field


he Ohio Northern University chapter of the Black Law Student Association sponsored its 8th Annual Diversity Forum on March 15, 2007, in the Moot Court Room of the College of Law. The event focused on the "Decline of Minorities in the Legal Field," and featured speakers Yolanda

Griffin, an attorney with Maron, Marvel, Bradley & Anderson; Vernellia R. Randall, Professor of Law, University of Dayton; and Judge Benjamin H. Logan, II (JD’72), 61st District Court, Grand Rapids, Michigan.

Judge Benjamin H. Logan, II and Yolanda Griffin

Members of BLSA with panelists

Class of 2007 Gives Over $11,800 to College Representatives of the Class of 2007 presented a check for $11,805 to President Kendall Baker during the Law Honors Banquet.

Kendall Baker, Rob Schalburg, Nicole Hamilton, Jess Weade




aw students from Ohio Northern University’s Pettit College of Law competed in the Shearman & Sterling International Round of the Jessup International Law Moot Court Competition in Washington, D.C., March 2531, 2007. The ONU team, which finished third in the North Central Regional competition at Cleveland State University on Feb. 23, placed 32nd overall at the international competition where they competed with 94 teams from more than 70 coun-

tries. The written memorials prepared by the ONU students ranked 16th overall. Second year law students Ryan McLelland (JD'08) from Salt Lake City, Utah and Joshua Jones (JD'08) from La Crensenta, California, were ranked among the top 100 oral advocates in the international competition. McLelland ranked 12th and Jones 34th among the over 400 advocates from all over the world. The Ohio Northern team also included Melissa Freeman (JD'07, Athens, Ohio) and


ONU Law Students Among Top 100 Oralists in the World at Jessup Competition

Ryan McLelland, Oleana Zadorozhna, Ashley Neese, Joshua Jones, Melissa Freeman Oleana Zadorozhna (LLM'07), an LL.M student from the Ukraine. The team was coached

by student Ashley Neese (JD'07, Meadowview, Virginia) and Professor Howard Fenton.

Little (JD’07, Kenmore, New York), Thomas McLelland (JD’08, West Jordan, Utah), Samuel Patry (JD’07, Bloomingdale, Illinois), and Tara Santarelli (JD’08, Strongsville, Ohio) and was coached by Mollie Murphy (JD’07, Cleveland, Ohio) and team advisor, Professor Sherry Young. –––––––– Ohio Northern’s ABA team advanced to the semifinal round of the American Bar Association Spring Nationals Competition

held in New York City. Forty-four teams competed in the New York City regional, with sixteen advancing to the semi-finals, including Ohio Northern’s team. They competed against schools such as Loyola University, Cincinnati, University of Pennsylvania and University of South Carolina. Team members Curtis Fifner (JD’07, Columbus, Ohio) and John Wojton (JD’07, Cleveland, Ohio) were coached by Professor Toni Clarke.

Constitional Law Team


he Constitutional Law Moot Court Team represented Ohio Northern at the National William B. Spong Moot Court Competition held at William & Mary's Marshall-Wythe School of Law. Team members were Ellen Kuhler (JD’08, Huron, South Dakota) and Brendan Roche (JD’08, Abingdon, Virginia) and coach-

es were Daniel Kiss (JD’07, Windber, Pennsylvania) and Professor Joanne Brant. Kuhler and Roche were undefeated at this prestigious competition, and were judged by esteemed legal professionals such as Chief Justice Moyer of the Ohio Supreme Court.

Traveling Teams The Ohio Northern University College of Law’s Fall Moot Court Team advanced to the quarter final round of the New York Bar Association Fall Competition. The Regional Competition, hosted by The Ohio State University Law School, was held November 9-11, 2006 and focused on 4th and 5th Amendment issues. Representing Ohio Northern was Adrea Yoss (JD’07, Houston, Texas), Emily Simmons (JD’07, Athens, Ohio) and Zachary The Writ Fall 2007

Bushatz (JD’08, La Rue, Ohio) and the coach was Jacqueline Mikita (JD’07, Cincinnati, Ohio), and faculty advisors David Raack and Stephen Veltri. –––––––– Ohio Northern Moot Court Students competed in the Texas Young Lawyers Association National Mock Trial Competition, held in Cincinnati on February 9-11, 2007. The team consisted of Lindretta Grindle (JD'08, Flowery Branch, Georgia), Brendan



32nd Annual Anthony J. Celebrezze Intraschool Appellate Advocacy Competition


he Anthony J. Celebrezze Intraschool Appellate Advocacy Competition is one of two annual appellate advocacy competitions at the ONU College of Law, and the only one available to upper-class advocates. The competition invites all second and third year ONU law students to compete for awards and cash prizes by displaying their trial advocacy skills. The competition is sponsored by the family of the Honorable Anthony J. Celebrezze (LLB’36/LLD’63). The final round of the 32nd Annual Anthony J. Celebrezze Appellate Advocacy Competition was held on Saturday, March 17, 2007, in the Moot Court Room of the College of Law. This competi-


tion annually showcases the top oral advocates at ONU. This year’s competitors litigated the case of Morse v. Frederick - the “Bong Hits for Jesus” case which was before the U.S. Supreme Court. Stephen Ball (JD’08, Cincinnati, Ohio) topped opponent Brendan Roche (JD’08,

Judge Mark L. Pietrykowski, Brendan Roche, Chief Justice Randall T. Shepard, Stephen Ball, Justice Robert R. Cupp Abingdon, Virginia) to win the competition. Three members of the judiciary were on hand to judge the final round, including Chief Justice Randall T. Shepard,

Indiana Supreme Court, Justice Robert R. Cupp (JD’76), Ohio Supreme Court and Judge Mark L. Pietrykowski (JD’79), Sixth District Court of Appeals.

ONU Grads Rank 2nd in Bar Pass


raduates of Ohio Northern University Pettit College of Law recorded the second highest percentage of first-time applicants passing the February 2007 bar exam in the state of Ohio. The University of Akron School of Law ranked first with 92 percent, followed by Ohio Northern with 83 percent. Ohio State University Moritz College of Law was third with 81 percent and the University of Toledo College of Law rounded out the top four with 80 percent. Statewide, there were 271 first-time applicants and 79 percent received passing scores. David C. Crago, Dean and Professor of Law at Ohio Northern, celebrated the accomplishments of the ONU graduates, “We are extremely


on Monday, May 14, 2007, at The Ohio Theatre in Columbus, the oath of office was administered to those applicants who were successful on the examination and who satisfied all of the Supreme Court’s other requirements for admission. DAVID C. CRAGO

proud of our students and their successful completion of the Ohio bar examination. This is the culmination of years of hard work, determination, and self-discipline.” During a special public session of the Supreme Court, held

Ohio Northern alumnus and Ohio Supreme Court Justice Robert R. Cupp (JD’76) offered remarks at the ceremony. John S. Stith, president of the Ohio State Bar Association, and David C. Crago, Dean of Ohio Northern University Pettit College of Law, also offered remarks. Speaking on behalf of the legal educators at Ohio’s nine law schools, Crago said, “You take with you an awesome force. We expect you to use that force wisely, to use the law to build a better world.” Crago added, “You are joining a learned profession. It is imperative you act as professionals, in your language, demeanor, relationships and fundamental beliefs.”



udges from the Ohio Third District Court of Appeals came to Ohio Northern University on March 20, 2007, to give future lawyers a snapshot of the real world. As part of its traveling education initiative, court was held in the Moot Court Room of the College of Law. Judges, law students, and others had a chance to listen to attorneys present a civil and a criminal case. The oral arguments were heard by a three-judge panel consisting of Presiding Judge Richard M. Rogers (JD’72) and Judges Vernon L. Preston and John R. Willamowski (JD’85). Stephen R. Shaw (JD’75) is the Appellate Court’s fourth judge. The first case to be heard was State v. Timothy J. Moore (Allen County) regarding an appeal of the jury conviction for the murder of Mr. Moore’s wife. Two ONU alums were the attorneys presenting: Jana Emerick (JD’92) for the state and Brandie Hawkins (JD’04) for Moore. The Marysville Newspapers, Inc., et al. and Premier Printing of Central Ohio, Ltd. (Union County) v. The Delaware Gazette Company,

Inc., et al. was the second case heard by the court and it was regarding an appeal of a breach of contract claim. At the conclusion of both cases, the appellate judges took questions from the audience. The Appellate Court’s special session at the College of Law is part of an educational outreach program to give students, educators and the public an opportunity to enhance their understanding of the appellate process. The Appellate Court, based in Lima, Ohio, is comprised of 17 counties and travels among them for special court sessions.


Third District Court of Appeals in Ada The Appellate Court’s special session at the College of Law is part of an educational outreach program to give students, educators and the public an opportunity to enhance their understanding of the appellate process.

Third District Court of Appeals Judges Vernon L. Preston, Stephen R. Shaw, Richard M. Rogers, and John R. Willamowski

Area High Schools Participate in Annual ONU Street Law Competition


tudents from four area high schools competed in the annual Street Law Competition at Ohio Northern University College of Law on Sunday, April 1, 2007. Students from OttawaGlandorf, Lima Christian Academy, Kenton, and Ada served as lawyers and witnesses for a mock criminal case. The Street Law program is in its 18th year at Ohio Northern. ONU law students The Writ Fall 2007

visit local area high schools on a weekly basis beginning January to teach the high school students the fundamentals of participating in a mock trial. The high school students learned general aspects of the law, the basic structure of a trial, and the role of an attorney within the trial. During the mock trial, they were judged on their opening statements, closing statements, direct examination, cross examination and overall profes-

sionalism. “This program offers the opportunity for law students to share their knowledge with high school students and to spark an interest in judicial procedures,” said ONU law student Christopher Michael Meehan (JD’07, Greenwood, Indiana). Street Law is an organization that began in 1972 when a group of law students from Georgetown University took an experimental, one semester

course to teach law to high school students in the District of Columbia. Since then, Street Law has developed into a national organization that is geared to educate high school students in law and the rights that people have regardless of their race, religion, sex, or financial status. Over 40 ONU law students and over 110 high school students participated in this year’s program with Ohio Northern.



Frontiers of Estate Planning: STUDENT ACTIVITIES

Changing Laws for Changing Times By Ashley Schweizer (JD’08)


he Ohio Northern University Law Review presented its 30th Annual Law Review Symposium on March 23, 2007. The title was “Frontiers of Estate Planning: Changing Laws for Changing Times.” This was a very successful symposium as several practitioners, faculty, and students were in attendance throughout the day. The 2006-2007 Symposium Editor, Kristin Schultz (JD’07, Indianapolis, Indiana), worked in conjunction with the Editor in Chief, K. Robert Schalburg (JD’07, West Terre Haute, Indiana), the editorial board, associate editors, and staff editors to organize and host this event. There were several interesting and beneficial presentations and discussions regarding a wide array of issues concerning estate planning, which was the central focus of the Symposium. The attorneys who attended received 6.5 hours of CLE credit, which was comprised of 5.5 hours of general credit and 1 hour of ethics credit. The 6.5 CLE credit hours were approved by the Ohio Supreme Court Commission on Continuing Legal Education. The speakers will be published in the Ohio Northern University Law Review, which will provide each speaker an opportunity to expand and elaborate on their presentation at the Symposium. The moderator of the symposium was John H. Martin, Visiting Professor of Law at Ohio

31st Annual Law Review Symposium

Representing High Profile Clients March 17, 2008 36

Northern University. His teaching interests include Estate Planning, Estate and Trust Administration, Charitable Organizations, and Federal Income and Estate and Gift Taxation Law. Before teaching at ONU, Professor Martin was a partner in the firm of Warner, Norcross & Judd LLP in Muskegon and Grand Rapids, Michigan, and he remains Of Counsel with the firm. Professor Martin was presented with the 2007 Daniel S. Guy Award for Excellence in Legal Journalism by the ONU Law Review for his work on the Symposium.

The day began with an intriguing lecture by Larry Waggoner who is the director of research and chief reporter for the Joint Editorial Board for Uniform Trust and Estate Acts. He was the principal drafter of the Uniform Probate Code revisions completed in the 1990s. Professor Waggoner is also the reporter for the Restatement (Third) of Property (Wills and Other Donative Transfers). He is the Lewis M. Simes Professor of Law at Michigan. Professor Waggoner’s presentation was entitled “Class Gifts under the Restatement Third of Property.”

Following Professor Waggoner’s lecture, Charles M. Bennett discussed ethics in estate planning. His lecture was titled “Frontiers in Ethics: Did the ABA Finally Get it Right?” Mr. Bennett is a member of the

law firm Blackburn & Stoll, LC located in Salt Lake City, Utah. He practices in the areas of estate planning, probate, and probate litigation. Mr. Bennett is a fellow of the American College of Trust and Estate Counsel. The next speaker was Ira M. Bloom. Professor Bloom is a David Josiah Brewer Distinguished Professor of Law at the Albany Law School of Union University. He is an Academic Fellow of the American College of Trust and Estate Counsel and member of the American Law Institute. Professor Bloom’s discussion concerned powers of appointment and was entitled “Powers of Appointment under the Restatement Third of Property.” The last speaker of the morning session was Gerry W. Beyer. Professor Beyer provided an interesting and lively discussion about electronic wills and trusts. He is the Governor Preston E. Smith Regents Professor of Law at Texas Tech University. He is an Academic Fellow of the American College of Trust and Estate Counsel, and he received the 2001 Probate & Property Excellence in Writing Award for Best Overall Article in Probate and Trust. Professor Beyer is also the Keeping Current Probate editor for Probate & Property magazine. Professor Beyer’s discussion was entitled “Electronic Wills and Trusts: Is the Writing Requirement Ready for Relegation to History?”

The afternoon session began

with a presentation by AnneMarie Rhodes entitled “Consequences of Heirs Misconduct.” Professor Rhodes teaches at Loyola University School of Law, and she is also Of Counsel with Sachnoff & Weaver, Ltd. Professor Rhodes is an Academic Fellow to the American College of Trust and Estate Counsel. The next speaker was Jeffrey A. Cooper. Professor Cooper is an Associate Professor of Law at Quinnipiac University School of Law. Prior to that, he was a Principal in the Private Clients Group of the law firm of Cummings & Lockwood. He was also a Vice President and Senior Estate Planner for the United States Trust Company. Professor Cooper’s presentation was called “Speak Clearly and Listen Well: Negating the Duty to Diversify Trust Investments.”

The last speaker of the Symposium was Charles D. Fox who discussed irrevocable trusts. His presentation was titled “How ‘Revocable’ is ‘Irrevocable?’ Obtaining Flexibility in Irrevocable Trusts.” Mr. Fox is a partner in the law firm of McGuire-Woods LLP in the Charlottesville, Virginia office. He is an Adjunct Professor at the University of Virginia School of Law, and he is Chair of the Editorial Board of Trust & Investments and a member of the CCH Estate Planning Advisory Board. Mr. Fox is also a Fellow of the American College of Trust and Estate Counsel.

If you are interested in submitting any articles for publication in the Ohio Northern University’s Law Review, please contact Lead Articles Solicitation Editor, Colette Kramer at OHIO NORTHERN UNIVERSITY COLLEGE OF LAW


Law Students Continue Tradition of Icelandic Exchange “Oh the winds blow cold in Iceland, but the wind has blow cold before.” By Andrew Hopper (JD’08)


he longstanding 47 year tradition of the ONU Icelandic Legal Society was continued this past March with 3 Northern law students making the 3000+ mile trek to the tiny island nation of Iceland. The unique cultural exchange offered myriad experiences. The travelers, Samuel Fischbach (JD’08, Burton, Ohio), Ashley Schweizer (JD’08, Salem, Kentucky), and Andrew Hopper (JD’08, Pendleton, Indiana) visited a number of sites around the country. Their expert guide, a third year Icelandic law student, led the travelers from the capital, far out into the countryside to Thingvellir, a natural amphitheater, where the Icelanders elected the members of their first parliament in the year 930. This is the world’s first parliamentary system of government. After a tour of this grand site and listening to our guides in depth discussion of all that had come to pass in the following 1000+ years, Ashley Schweizer noted that, “The Icelandic people are very proud of their history and are eager to share it.” The trip also included a stop at the District Court house in Reykjavik, the country’s capital. Due in part to the small size of the country, over the past 47 years many members of the Icelandic legal community have actually made the trek to Ada, Ohio. Schweizer said, “it was very surprising to be touring the courthouse and when we would meet someone, they often would greet us with smiles and stories of their time in Ada.” The 6 day visit also

The Writ Fall 2007

included stops in Gullfoss, the largest waterfall in Europe, The Blue Lagoon, a thermal pool, the President’s house and Hallgrímskirkja Church, the tallest building in the country. The ONU Icelandic Legal Society is very appreciative of their gracious hosts and is looking forward to another exciting exchange in 2008.

An Alumni trip commorating the 50th year of the Icelandic Exchange Program is being scheduled for 2010.

Contact the law alumni office at for details.



ONU Law Students Continue to Volunteer Their Time to Help Others By Cheryl A. Kitchen, Director of Law Alumni and Career Services


aw students at Ohio Northern University College of Law continue the history of public service in actively seeking ways to make a difference in our society. In the summer of 2007, five of our students received public interest stipends of $1,000 each for their work in various organizations across the country. The Public Interest Summer Fellowship Program began back in 1994

to create opportunities for our students to pursue their goals and dreams of becoming public interest attorneys. The program is funded each year by holding the public interest auction on the last day of spring classes. In addition to attending the auction, alumni, faculty, staff, friends of the university, and students donate items or match funds for the auction. This annual event has grown each year, and we encourage its expansion, which

allows even more students the opportunity to gain valuable experience in the public service area of law. This fellowship program has given some of our students, who otherwise would not have been able to work on a volunteer basis during the summer, the opportunity of participating in public interest employment. During their summer 2007 break, the students had a variety of experiences.

Public Interest Auction The Public Interest Summer Fellowship Program began back in 1994 to create opportunities for our students to pursue their goals and dreams of becoming public interest attorneys.

Josh Boswell Jewish Family and Children’s Service of Pittsburgh

Jenica James National Center on Adoption Law & Policy at Capital University Law School

Tori Giesler Pennsylvania Department of Environmental Protection

Emily White Indiana Legal Services, Inc.

Jazmine Greer Cleveland Law Department, Criminal Division





Robert R. Cupp Sworn-In as 151st Justice of the Supreme Court of Ohio


udge Robert R. Cupp was sworn in earlier this year as the 151st Justice of the Supreme Court of Ohio in a ceremony held in the Ohio Judicial Center’s Supreme Court Courtroom. Justice Cupp was elected to fill the seat vacated by retiring Justice Alice Robie Resnick. According to the news release from the Supreme Court, Chief Justice Thomas J. Moyer gave the oath of office. Justice Cupp comes from the Third District Court of Appeals, which serves 17 counties in northwest and west central Ohio and is headquartered in Lima. David Crago, dean of the Pettit College of Law at Ohio Northern University, Justice Cupp’s alma mater, served as the master of ceremonies. “It’s a day of great joy and celebration, and the day to reflect on the accomplishments and the promise the future holds for Justice Cupp,” Dean Crago said. “Justice Cupp is a man of exceptional ability committed to public service. He is a man dedicated to justice and possesses impeccable integrity. Those qualities – commitment, ability, dedication, and integrity – should lead him to becoming one of the outstanding members of this

Justice Robert Cupp receives the oath of office from Chief Justice Thomas J. Moyer already outstanding court.” Justice Cupp’s legal career stretches three decades and includes a private law practice of more than 25 years, 16 years as a member of the Ohio Senate, and service as Lima City prosecutor and assistant law director and Allen County Commissioner. He has served on the appeals

“It’s a day of great joy and celebration, and the day to reflect on the accomplishments and the promise the future holds for Justice Cupp. Justice Cupp is a man of exceptional ability committed to public service. He is a man dedicated to justice and possesses impeccable integrity. Those qualities – commitment, ability, dedication, and integrity – should lead him to becoming one of the outstanding members of this already outstanding court.” –David Crago The Writ Fall 2007

court since 2003. “In accepting this responsibility I think it is noteworthy that the 150 individuals before me have taken the oath and have served on this Court since Ohio’s statehood in 1803,” Justice Cupp said. “Individual members come and go, but the Court and the important work of the Court of administering justice goes on.” In welcoming Justice Cupp to the Court, Chief Justice Moyer said he and fellow Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrance O’Donnell and Judith Ann Lanzinger are honored to have someone of his character join them. “This is a special person,” Chief Justice Moyer said of Justice Cupp. “In his public service, there are few who come to this bench who have had a greater variety of experiences that prepare one for the very difficult decisions that we make.” During his time with the Senate from 1985 and ending in 2000, Justice Cupp served as president pro tempore, the second-ranking leader in the Senate, from 1997 through

2000. He also served as chairman of the Commerce and Labor Committee, the Civil Justice Subcommittee, and the Legislative Information Systems Committee. At various times he was a member of the Judiciary, Finance, Education, Agriculture, Ways and Means, State and Local Government, Rules, Joint Legislative Ethics, and Legislative Service committees. Born and raised in rural Allen County, Justice Cupp graduated from Columbus Grove High School and received his undergraduate degree in political science from Ohio Northern University and his juris doctorate from the university’s Pettit College of Law. He also served as a visiting professor at Ohio Northern, teaching judicial process and a leadership studies seminar. Justice Cupp is a two-time recipient of the Ohio State Bar Association’s Distinguished Service Award, and a recipient of the Robert E. Hughes Memorial Award from the Ohio Association of Elected Officials. Justice Cupp is married to Libby and they have two sons, Matthew and Ryan.


Faculty Discuss Supreme Court Updates



he 2005-2006 term at the United States Supreme Court was unusually eventful. The death of long-time Chief Justice William Rehnquist, in addition to the retirement of Associate Justice Sandra Day O’Connor, created the first vacancies on the court since Clinton’s appointment of Associate Justice Stephen Breyer in 1994. President Bush appointed John G. Roberts, Jr. as the new Chief Justice, and Samuel A. Alito, Jr. was tapped to fill Justice O’Connor’s seat. Both men were confirmed by the Senate and took their seats during this term. On October 12, a panel of ONU law faculty considered several decisions issued by the Roberts Court during its first term. The October panel discussed the constitutionality of using military tribunals to try enemy combatants, federal power over nonnavigable wetlands and military recruiting at universities opposed to the government’s “Don’t Ask, Don’t Tell” policy. The October panel was moderated by Professor Joanne C. Brant. Professor Michael Lewis discussed the case Hamdan v.

Rumsfeld and the effect of recent legislative developments on the President’s power to try enemy combatants in military tribunals. Professor David Raack spoke about the cases of Rapanos v. United States and Carabell v. United States Army Corps Engineers, and Congress’ authority to regulate the discharge of pollutants into nonnavigable wetlands under the Clean Water Act. Professor Kevin Hill discussed the case Rumsfeld v. FAIR and the obligations that universities receiving federal funds owe to military recruiters under the Solomon Amendment. On November 15, Ohio Northern University College of Law presented the second half of this two-part series, in which ONU law faculty continued the conversation about the leading cases of the term and commented on their implications. This panel addressed the leading criminal procedure decision of the term (“knock and announce”), the rights of patent holders against eBay, and various decisions with implications for federalism, including the Oregon case on physician-assisted suicide and three cases rejecting state sovereign immunity defenses.

The November panel discussion was moderated by Professor Scott Gerber. Professor C. Antoinette Clarke discussed the case of Hudson v. Michigan, which held that the 4th Amendment’s exclusionary rule does not apply to violations of the “knock and announce” rule. Associate Professor Liam S. O’Melinn discussed eBay Inc. v. MercExchange LLC and injunctive remedies for patent infringement. Professor Joanne C. Brant discussed four cases involving a moderate view of federalism. The first case was Gonzales v. Oregon, which held that states may enact a law allowing physi-

cian-assisted suicide. Brant also spoke about a general trend exemplified by three 11th amendment cases: Central Virginia Community College v. Katz (rejecting a sovereign immunity defense in a bankruptcy action), Northern Insurance Co. of New York v. Chatham County, Georgia (ruling that a Georgia county operating a malfunctioning drawbridge is not an arm of the state, and thus lacks immunity to suit) and United States v. Goodman (holding that Title II of the Americans with Disabilities Act validly abrogates the states’ sovereign immunity to suit by a disabled prisoner).

“The Fairer Death: Executing Women in Ohio”


ictor L. Streib, Professor of Law at Ohio Northern University, discussed his latest book "The Fairer Death: Executing Women in Ohio" in the College of Law on January 18, 2007. The event was co-sponsored by ONU's Criminal Law Society and the Legal Association of Women and was followed by a book signing. "The Fairer Death: Executing Women in Ohio" explores Ohio's experience with the death penalty for women and what that experience reveals about the death penalty for women throughout the nation. National reviewers have characterized Streib's new book as a "magnificent work" with "richly detailed" and "vivid portraits" of these condemned Ohio women. Streib carefully describes the cases of all four women executed by the State of Ohio


since its founding and the cases of all 11 women sentenced to death in Ohio during the current death penalty era (1973present). Streib's analysis of two centuries of Ohio's use of the death penalty reveals no clear intent to exclude women but nonetheless shows an obvious sex bias in operation. He focuses specifically on Ohio with the underlying premise that Ohio is, in many ways, a typical death penalty state. The book provides insight into

the national experience, provoking questions about the rationale for the death penalty and the many disparities in its administration. Streib has been at ONU since 1996 and is author of more than 300 books, chapters, articles and papers during his academic career. His research has been cited 28 times in opinions of the United States Supreme Court. He has served as a prosecuting attorney and a defense attorney, and he has represented juveniles and women convicted of murder before the United States Supreme Court and several state supreme courts. He also has testified before committees of the United States Congress and seven state legislatures on these issues.



he Ohio State Bar Association’s (OSBA) Legal Education Committee honored Dean David C. Crago of Ohio Northern University College of Law as the recipient of the 2007 OSBA Legal Education Committee Award. This award is given to the law professor who has contributed most to Ohio law and the Ohio bar. Crago joined the faculty of Ohio Northern University College of Law in 1991 after practicing with Jones, Day, Reavis & Pogue and Murphey, Young, & Smith. He became dean of the College of Law in January, 2001. As a professor at Ohio Northern, his teaching interests are business and commercial law. John Paul Christoff, Associate Dean for Academic Affairs and Professor at Ohio Northern University College of Law, said of Crago, “During his tenure as dean, he has guided the law school into perhaps its most positive and effective level in its history.” Crago is actively involved in the activities of the Ohio State Bar Association, serving as the chair of the OSBA Judicial Campaign Advertising Monitoring

Committee. Christoff said of him, “What I believe merits his being honored with this award, perhaps more than any of his other many accomplishments, is his service as Chair of the Judicial Campaign Advertising Monitoring Committee of the Ohio State Bar Association. Through his leadership in this matter, judicial campaigning in Ohio


Crago Presented 2007 Friend of Legal Education Award by OSBA has reached a new and superior level of professionalism.” Crago also served as the program chair of the OSBA Ohio Bench Bar Deans Conference in 2004. Crago has written and spoken extensively on governance and fiduciary issues in both for-profit and non-profit contexts.

OSBA president-elect Gary Leppla, incoming president Rob Ware, Dean David C. Crago, Ohio Supreme Court Justice Evelyn Lundberg Stratton, president Jack Stith

Faculty Awards Presented at Honors Banquet

Professor Bryan H. Ward 2006-2007 Recipient Fowler V. Harper Faculty Scholarship Award The Writ Fall 2007

Professor John H. Martin 2006-2007 Recipient Teaching Excellence Award 41



Amanda E. Pecchioni


manda E. Pecchioni joined the faculty of the College of Law in August, 2007, as Visiting Assistant Professor of Law. Her teaching interests are Property, Intellectual Property, and Professional Responsibility. Prior to coming to ONU, she was an associate in the Indianapolis office of Ice Miller LLP, where she was a member of the Intellectual Property Group. She concentrated her practice in the areas of trademark and copyright prosecution and litigation and counseled clients in various aspects of trademark law, including adoption of new trademarks, registrations in the United States and abroad, licensing, and enforcement of rights. She also assisted clients with domain name registration and enforcement, drafting and negotiating contracts, franchising, and border enforcement of intellectual property through U.S. Customs. She previously served as Senior Counsel for Sears Intellectual Property Management Company in Hoffman Estates, Illinois. She earned her JD from Howard University and her BA with honors from Bennett College for Women. She is licensed in Indiana. Professor Pecchioni volunteers much of her time helping those underserved. Her commitments include being a Founding Member of the Fannie Lou Hamer Project, Board of Directors for the Neighborhood Christian Legal Clinic, a volunteer attorney for the Protective Order Pro Bono Project and the Organizing Committee for the Circle City Classic. She was also a member


of the inaugural class of the Indianapolis Bar Association's Bar Leaders Series and the Women's Fund, OPTIONS '03 class. Additionally, her memberships include Marion County Bar Association, where she is currently the President-Elect; National Bar Association, CLE committee; International Trademark Association, Saul Lefkowitz Moot Court Committee; and Delta Sigma Theta Sorority, Inc.

ONU UPDATES Howard N. Fenton, III Director of the Democratic Governance and Rule of Law LL.M. Program/Professor of Law


oward Fenton made two notable presentations this past spring and summer. In March, he made a presentation and moderated a panel at the annual meeting of the International Law Students Association on “Constitution Making and the Rule of Law” in Washington, D.C. His presentation was entitled “Overreliance on Judicial Review to Constrain Executive Action”. The annual meeting is held in conjunction with the international round of the Jessup international Law Moot Court Competition, where the Ohio Northern team that Professor Fenton advises finished in the top third among teams from all over the world. In June Professor Fenton participated in the First Central and Eastern European Rule of Law Symposium in Sofia, Bulgaria. He made a presentation entitled “The Importance of a Sound System of Administrative Justice for Economic Development and Foreign Investment.” The program was sponsored by the Bulgarian Institute for Legal

Initiatives and the American Bar Association Rule of Law Initiative.

Scott D. Gerber

the Ohio Supreme Court to a group of Ukrainian judges on “Comparing the U.S. and Ukrainian Judicial Systems: An Overview.”

Professor of Law


cott Gerber was awarded tenure and promoted to full professor in 2007. His legal thriller, The Law Clerk, was released in hardcover in May by Ohio Northern University Press, as distributed by Kent State University Press. He published an article in the pocket part to the Yale Law Journal and had a major piece accepted by the Vanderbilt Law Review. His other recent publications include a review of the new PBS documentary on the Supreme Court for the Journal of American History, and several op-eds for His book about Justice Clarence Thomas was cited in the New York Times. He made research presentations at the University of California at Davis School of Law, McGeorge School of Law, Campbell University School of Law, Capital University Law School, the Federalist Society’s annual faculty conference, and to members of the North Carolina judiciary, among other venues. He remains hard at work on a book tentatively entitled The Origins of an Independent Judiciary: A Study in Early American Constitutional Development, 1606-1787.

Elena V. Helmer Visiting Assistant Professor of Law


lena Helmer attended the American Bar Association Section of International Law Spring Meeting in Washington, D.C. She also made a presentation at

Michael W. Lewis Assistant Professor of Law


ichael W. Lewis completed his article, International Myopia: Hamdan’s Shortcut to “Victory” (forthcoming in the University of Richmond Law Review, Jan. 2008) and was a presenter/panelist at Duke University School of Law, Law, Ethics and National Security Conference, where he participated in a panel discussion on Domestic Spying moderated by Prof. Kinkopf with Prof. Schroeder (Duke), Prof. Banks (Syracuse) and Mary DeRosa of the Center for Strategic and International Studies; at The Ohio State University Moritz College of Law where he participated in a panel discussion with Prof. Travalio and Prof. Alt regarding “Interrogation and the War on Terror,” and at Northeastern University School of Law. He also participated in debates at William & Mary Marshall-Wythe School of Law, Boston College Law School, University of Hawai’i at Manoa, Richardson School of Law, Wayne State University School of Law, and Golden Gate University School of Law. Professor Lewis also presented lectures on Hamdan v. Rumsfeld at several law schools, including Notre Dame, South Carolina, Akron, University of California-Davis, and University of the Pacific. Continued on Next Page



Continued from Page 40

John H. Martin Visiting Assistant Professor of Law


ohn Martin was selected to chair the Executive Committee (board of directors) of the Institute of Continuing Legal Education for a term from January 1, 2007 to June 30, 2008. The Institute is sponsored by the State Bar of Michigan and the law schools located in Michigan, and it provides seminars, publications, and other continuing legal education for Michigan lawyers. He authored the 2007 edition of the Reporter’s Notes to Michigan’s Estates and Protected Individuals Code. Martin assisted the ONU Law Review in planning its 2007 Symposium: “Frontiers of Estate Planning: Changing Laws for Changing Times.” He was selected to be a presenter at the Marvin R. Pliskin Advanced Probate and Estate Planning Seminar sponsored by the Ohio State Bar Association on Sept. 15, 2007 and will also participate in the ONU Professional Advisors Seminar, “Charitable Planning in a Changing World,” on Nov. 7, 2007. vides seminars, publications, and other continuing legal education for Michigan lawyers. He authored the 2007 edition of the Reporter's Notes to Michigan's Estates and Protected Individuals Code. Martin assisted the ONU Law Review in planning its 2007 Symposium: "Frontiers of Estate Planning: Changing Laws for Changing Times." He was selected to be presenter at the Marvin R. Pliskin Advanced Probate and Estate Planning Seminar sponsored by the Ohio State Bar Association on Sept. 15, 2007 and will also particiThe Writ Fall 2007

pate in the ONU Professional Advisors Seminar, “Charitable Planning in a Changing World,” on Nov. 7, 2007.

Nancy Paine Sabol Associate Professor of Law and Director of Academic Support


ancy Sabol attended the Law School Admission Council National Academic Assistance Training Workshop in Miami.

Victor L. Streib Ella and Ernest Fisher Professor of Law


n 2006, Victor Streib became Editorin-Chief of the ABA Criminal Justice Section's annual series, The State of Criminal Justice. These annual reports have grown from 50 page pamphlets in previous years to 250 page volumes under Streib's editorship. The 2007 volume should be in print in December.

Lisa Sonia Taylor Associate Director of Law Admissions


isa Sonia Taylor served as a panelist at the 2006 National Black Pre-Law Admissions & Preparation Conference and Law Fair in Dallas, Texas and served on the Minority Information Panel at the Law School Admissions Council's 2006 Chicago Forum and 2007 Washington, D.C Forum. She

was invited to speak with prelaw students about the admissions process and various challenges of applying to law school by both the Pre-Law Association at Clark Atlanta University in November 2006 and the National Black Law Students Association at Vanderbilt University in January 2007. Taylor also attended the Midwest Association of Pre-Law Advisors 2006 Annual Conference; Southern Association of PreLaw Advisers 2006 Fall Conference; The Association of American Law Schools 2007 Annual Meeting; Law School Admissions Council 2007 Annual Meeting and Educational conference; and The 2007 Law School Admissions Council Summer Regional Workshop.

Vernon L. Traster Professor of Law


ernon Traster has written another supplement to his chapter Insurance Bad Faith in Ohio, which appears in “Tort Law,” a legal text published by Thomson West as part of the Baldwin’s Ohio Practice series. In May, Professor Traster attended the annual convention of The Ohio Association for Justice in Columbus, Ohio. He continues to consult in lawsuits involving significant tort and insurance law issues.

Bryan H. Ward Professor of Law


ryan Ward published in the Loyola Law Review and the Forum on Public Policy online and submitted two entries for The Encyclopedia of the American Constitution. He also

presented on the new Ohio Rules of Professional Conduct and attended the Justice Institute for the Legal Profession in the fall. He is working with the Western Ohio Conference of the United Methodist Church in coordinating their annual legal update seminar.



Mindi Wells Assistant Dean for Administration and Student Services


indi Wells continues to serve as one of the elected out of state representatives on the Florida Bar Association's Young Lawyers Division Board of Governors and on the Executive Council of the Out of State Practitioners Executive Council. She was a presenter and guest lecturer on workplace law and employee benefits at Bowling Green State University and Ohio Northern University. ■

Over 50% of our full-time faculty hold a Ph.D. or LL.M. degree in addition to their J.D. 43


International Myopia:

Hamdan’s Shortcut to


Yes, but if we have such another victory, we are undone. -- Pyrrhus

By Michael W. Lewis


he Supreme Court’s decision in Hamdan v. Rumsfeld was hailed by many as a victory for international law.1 By basing part of its decision on the Geneva Conventions, the Court was seen as forcing a reluctant administration to recognize and comply with international law. However, a closer look at the opinion’s Geneva Convention analysis calls that conclusion into question. By ignoring its own canons of treaty interpretation and expansively reading new protections into the Convention, the Court may have contributed to the legislative reaction, while further supporting criticism that international law is nothing more than politics by another name. Salim Hamdan is alleged to have been Osama bin Laden’s driver and bodyguard when he was captured in Afghanistan.2 He was charged with a violation of the laws of war and was to be tried by a military commission. The Supreme Court, through Justice Stevens, upheld Hamdan’s challenge of the commissions on several grounds. On the international law issues the Court declared that Hamdan was entitled to protection under the Geneva Conventions and that the military


commission’s procedures violated basic rights guaranteed by those Conventions.3 The United States Supreme Court has generally provided exceptionally thorough analyses when dealing with international law issues. In departing from this traditional approach, the Hamdan Court provided an incomplete and at times cursory analysis of critical issues involving Geneva’s scope and substance.

INTERPRETING INTERNATIONAL LAW IN AMERICAN COURTS Although jurists over the years have disagreed on the influence that international law should have on American Constitutional interpretation, they have almost uniformly approached the task of interpreting international law with a procedural and historical thoroughness that at times exceeds that afforded to questions of domestic law.4 In contrast, one of the most striking features of Hamdan’s treatment of the Geneva Conventions is its brevity. While brevity itself is no vice and prolixity no virtue, Justice Stevens’ discussion of the Geneva Conventions represents a significant departure from the much more detailed approaches taken by other Justices, from Gray to Ginsburg, when examining issues of international law. In cases as diverse in time and subject matter as United States v. Smith5 (deciding how international law defined “piracy”), The Paquete Habana6 (determining the status of




n order to understand the shared expectations of the contracting parties to the Geneva Conventions it is first necessary to examine their history. Drafted after World War II, the 1949 Geneva Conventions are actually four separate conventions, each designed to protect a different group: the sick and wounded on land, the sick, wounded and shipwrecked at sea, prisoners of war and civilians.10 The first three articles of all four conventions are identical and are therefore known as Common Articles 1, 2 and 3.11 In 1977, Additional Protocols I and II were added to the 1949 Geneva Conventions.12 These protocols further expanded the protections afforded to all four categories covered by the 1949 Conventions. While these Additional Protocols have gained wide acceptance, they have not approached the universal acceptance of the 1949 Geneva Conventions, 13 although non-ratifying nations regard some

The Writ Fall 2007


coastal fishing vessels captured off of Cuba during the Spanish-American War), Air France v. Saks7 (defining the term “accident” under the Warsaw Convention for International Transportation by Air) and Volkswagenwerk Aktiengesellschaft v. Schlunk8(defining “notification” and “signification” under the Hague Service Convention on international service of process) the Supreme Court has employed a painstaking analysis of treaty drafting history, multinational court decisions, state practice and subsequent agreements to provide the answers sought. Where the opinion calls for treaty interpretation, Justice O’Connor’s opinion in Air France v. Saks establishes the standard for inquiry; it is “our responsibility is to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties.”9 Yet when called to interpret the Geneva Conventions in Hamdan, the Supreme Court did not even mention the Air France standard, nor did it investigate the shared expectations of the contracting parties.

provisions of these Protocols as customary international law.14 It is the interplay between Common Articles 2 and 3, the substantive protections of Common Article 3 and the incorporation of Article 75 of Protocol I into the protections provided by Common Article 3 that underlie the international law aspects of the Court’s opinion in Hamdan. Common Articles 2 and 3 Common Article 2 establishes the scope of the four Geneva Conventions by stating that: In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.15

This describes what might be called a “traditional war”. Whether declared or not, these conventions cover the conduct of all parties to any armed conflict between States. Therefore, all of the Conventions’ protections apply to any such armed conflict and are binding on the armed forces of all parties to the conflict. In contrast, Common Article 3 applies to “armed conflict not of an international character” and provides certain minimum protections to all parties of such a conflict.16 It has been referred to as a “Convention in miniature” because as a stand alone article, it provides certain baseline protections to individuals involved in non-international conflicts.17



he opinion answered three fundamental questions about Common Article 3. It determined the scope of Common Article 3 by defining the term “armed conflict not of an international character.”18 It also defined the term “regularly constituted court” and Justice Stevens, writing for a plurality of four, decided that the military commissions do not afford “all the judicial guarantees which are recognized as indispensable by civilized peo-



ples.”19 All of this was done without reference to the “shared expectation of the contracting parties” and with only selective and cursory references to the commentaries and drafting histories of the Conventions and their Additional Protocols. Although the Commentaries to the Geneva Conventions’ describe the purpose of Common Article 3 primarily as a protection for rebels in internal conflicts and civil wars, the Court relied upon the general statement from the Commentaries “that the scope of the Article must be as wide as possible” and upon the fact that language limiting Common Article 3 to civil wars, colonial conflicts or wars of religion was omitted from the final version.20 The Court then concluded that while Common Article 2 applies to clashes between nations, Common Article 3’s application to “conflict[s] not of an international character” acts as a point of “contradistinction to a conflict between nations.”21 The Court found that the term “international” bears its literal meaning between nations in this context and held that Common Article 3 applies to all parties involved in any armed conflict not covered by Common Article 2.22 This minimalist treatment of the issue misses the broader tension within the Conventions that exists between universality of appli-


Our responsibility is to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties cation and accountability. While universality is supported by statements such as “[N]obody in enemy hands can be outside the law”23 it seems that the “shared expectation of the parties” in 1949 included a measure of accountability, particularly in the context of Common Article 3. There was sharp disagreement among the nations about whether international humanitarian law should “interfere” with the conduct of internal conflicts.24 The discussions revolved around the threshold at which Common Article 3 would be found to apply, and for many nations this threshold was based upon the cohesiveness of the rebel organization.25

Those nations opposed to adopting any form of Common Article 3 feared “that it would cover all forms of insurrections, rebellion, and the break-up of States, and even plain brigandage. Attempts to protect individuals might well prove to be at the expense of the equally legitimate protection of the State.”26 After making the familiar point that one man’s rebel is another man’s freedom fighter, the nations supporting adoption argued that: the behaviour of the insurgents in the field would show whether they were in fact mere felons, or, on the contrary, real combatants who deserved to receive protection under the Conventions. . . . It was not possible to talk of “terrorism”, “anarchy” or “disorder” in the case of rebels who complied with humanitarian principles.27

So the argument of those supporting adoption of Common Article 3 specifically disavows providing protections for terrorists or anarchists. This makes it clear that the shared expectation of the parties was that the protections of Common Article 3 are earned, that some individuals fell outside those protections (however minimal) and that the limitation on those protections was based upon the character and conduct of the combatants themselves. Which of these concepts


The Writ Fall 2007

It is unusual, and somewhat ironic, for a military tribunal’s independence to be questioned because it is subject to a greater degree of civilian oversight. fering during armed conflict, with the concept that a group which targets civilians may benefit from that very behavior, by being afforded all the rights of the civilians it targets. This is particularly true when such a group is contrasted with members of armed forces that do respect Geneva’s distinction requirements and who are liable for detention until the cessation of hostilities. These considerations make the question of whether universality or accountability should predominate, a close one, and one that the Court does not even address.


should prevail? Is it more important to respect the idea that Geneva’s protections are earned and therefore may be lost (accountability) or to ensure that Geneva’s protections are universal? While the 1949 history reviewed above leans toward accountability, the subsequent language of the Additional Protocols seems to favor universality. The Additional Protocols make it clear that all parties to a conflict are considered to be combatants, POW’s or civilians. Individuals not classified as combatants or POW’s because their organization does not comply with the laws of war (e.g. they directly target civilians) receive the default status of civilians. While a civilian suffers from the disadvantage that he “can be punished for the sole fact that he has taken up arms”,28 a civilian is not subject to detention until the cessation of hostilities merely because he belongs to a militia group. Moreover, civilians are entitled to all the procedural trial protections of the municipal criminal law system and must therefore be freed if the evidentiary requirements or procedural technicalities established by that system are not met. Such an occurrence is likely to be relatively commonplace for individuals detained in a combat (or near combat) environment. It is difficult to reconcile the overall purpose of the Conventions, to prevent suf-

Although arguably the Court’s decision favoring universality may be correct, it does not mean that the lack of analysis did not come at a price. Once it is determined that Common Article 3’s protections are to be provided, the analysis just desrcibed should inform the expansiveness with which those protections are read. If universality were the sole illuminating principle of the Conventions, then an expansive reading of the protections might be appropriate. But where the principles of universality and accountability are in tension, a less expansive reading is called for because expansiveness comes at a price to accountability.



he first requirement examined was that Common Article 3 defendants must be tried by a “regularly constituted court.”29 Rather than focusing on the language of Common Article 3 and its Commentary, however, Stevens turns to Geneva IV Article 66 which addresses the requirements for the trial of civilians that are accused of violating ordinances established by an Occupying power.30 That article allows for the option of using military courts as long as those courts sit within the occupied



territory.31 While the commentary does state that the courts must be regularly constituted and that “[I]t is the ordinary military courts of the Occupying Power which will be competent”,32 the application of this definition to the composition of war crimes tribunals seems misplaced. This sense that the definition is misapplied is supported by the International Committee of the Red Cross treatise which Stevens also references. The sentence Stevens quotes is found in a section entitled “Definition of a fair trial affording all essential judicial guarantees” whose primary focus is on the right to be tried by an independent and impartial tribunal.33 A review of the sources relied upon by the ICRC demonstrates that the requirements of independence and impartiality are critical, not whether the court existed prior to the conflict.34 While Stevens’ opinion does not mention this broad international emphasis on independence and impartiality, Justice Kennedy’s concurrence more fully address these requirements. Kennedy finds that a “regularly constituted court” requires the use of regular court-martial procedures absent a practical legislative or executive explanation for deviating from them.35 Kennedy’s main concern appears to be the difference in the appointing authority. While regular courts-martial are appointed by the Judge Advocate General, the senior military lawyer in each service, the appointing authority for the military commissions is the Secretary of Defense. It is unusual, and somewhat ironic, for a military tribunal’s independence to be questioned because it is subject to a greater degree of civilian oversight. The main basis for questioning these tribunals’ independence is a concern about insufficient separation between the executive and judicial functions.36 While there can be no question that military commissions convened by the Secretary of Defense might be criticized for a lack of such separation, it is hard to see how this is materially different from commissions convened by a service Judge


Advocate General. The service JAG’s are appointed by the Secretary of Defense or his subordinates. Therefore Kennedy finds that trials convened under the UCMJ by a service JAG are sufficiently independent and impartial, while trials convened by an appointee of the Secretary of Defense that utilize military judges and lawyers are not sufficiently independent and impartial.37 As the ICRC treatise and Kennedy’s concurring opinion indicate the true touchstone of “regularly constituted courts” is independence and impartiality, not a mechanical requirement related to the time of the court’s creation. Where international law is concerned, this goal of independence and impartiality is generally enhanced by increased civilian oversight of military tribunals. Whatever political misgivings this Court might have had about the quality of the civilian oversight that existed when the Hamdan decision was passed down, insulating future military tribunals from aspects of that oversight may ultimately be viewed as undermining rather than enhancing those goals.



he final Geneva Convention issue that Stevens addressed, now writing for a plurality of four,38 is whether the military commissions provide “all the judicial guarantees which are recognized as indispensable by civilized peoples.”39 Because the indispensable judicial guarantees are not enumerated in Common Article 3, Stevens incorporated the trial protections found in Article 75 of Additional Protocol I.40 Although the United States has not ratified Protocol I, Stevens pointed out that it has recognized these provisions as being declarative of customary international law.41 Reviewing the examples and cases Stevens relies upon it becomes clear that his main concern is the right of confrontation. Although he does not cite it, this guarantee of the right to cross examine opposing witnesses is found in sub-paragraph 4(g) of Article 75.42


The Writ Fall 2007

convicted of the summary beheading of eighteen civilians that the Japanese charged with sabotage.48 Including the ten minutes of deliberations, their collective trial lasted for approximately fifty minutes. The accused were not provided with defense counsel and the beheadings began one hour after the termination of the trial. Further, Ohashi’s prosecution did not involve any claim that the eighteen victims were ever denied access to evidence against them.49 General Tanaka Hisakasu was convicted of authorizing the trial and execution of Major Houck of the United States Army Air Force. Major Houck was shot down over Hong Kong while attacking Japanese naval forces in the harbor. Major Houck was not provided with defense counsel, was tried in less than two hours, sentenced to death and executed the next day.50 The four factors that the Commission listed as illustrative of the illegal nature of this trial do not mention the withholding of evidence from Major Houck’s inspection.51 In fact, the summary of Major Houck’s trial provided by the war crimes tribunal indicates that Major Houck was given access to the reports prepared for his prosecution by both the Japanese military authorities and the Hong Kong police. Stevens uses these two examples to support his holding that a defendant is personally entitled to examine all classified evidence against him in an unfiltered form.52 This borders on the ridiculous. The military commissions that were struck down not only provided the defendant with counsel, but required that his counsel be given access to all evidence proffered against him. Comparisons between these summary executions and the military commissions at issue do not lead to the conclusion that Stevens reached.

It [the Hamdan Court] arrived at its conclusions without significantly reviewing the drafting history of Common Article 3 or the Additional Protocols, or investigating any state practice outside of this country.


An examination of both the Additional Protocols and their scope calls his conclusion, that the military commissions were required to provide for cross examination, into question. Protocol I applies to Common Article 2 conflicts and therefore should not apply to Hamdan.43 In contrast, Protocol II specifically applies to Common Article 3 conflicts and Article 6 provides a similar list of enumerated protections. While the enumerated judicial guarantees described in the two Protocols are very similar, a careful comparison of the two articles reveals that Protocol II does not provide as extensive protections. The additional guarantees provided for in Article 75 of Protocol I that are not provided for in Article 6 of Protocol II can be summarized as cross-examination and calling witnesses (g), double jeopardy (h), the public pronouncement of the judgment (i) and notification of appellate rights (j).44 Given the close interaction between the drafting committees, and the widely held sense that there was to be some difference between the rules governing international and non-international conflicts, it is reasonable to infer that the differences between Article 75 and Article 6 were intentional. This difference between the guarantees enumerated by the Protocols should affect the plurality’s opinion on the protections afforded Common Article 3 defendants. Stevens focuses on the fact that “information used to convict a person of a crime must be disclosed to him.”45 This access to evidence is most clearly addressed by the right to cross examine witnesses, and thereby examine the basis for their evidence. That right is guaranteed by paragraph 4(g) of Protocol I, but is not protected by Article 6 of Protocol II.46 Whether or not such a distinction is viewed as wise policy today, there can be no question that the shared expectation of the contracting parties was to provide more limited protections in noninternational armed conflicts. Stevens also supports his conclusion that the commissions failed to protect fundamental guarantees by referencing the Allied war crimes trials of Japanese defendants after World War II. In footnote 66 Stevens mentions that two Japanese defendants were convicted by Allied war crimes tribunals for, inter alia, conducting summary trials that failed to “apprise accused individuals of all evidence against them”.47 Once one reads the summaries of these trials that Stevens cited, the comparison can only be described as shocking. Sergeant-Major Shigeru Ohashi was

N CONCLUSIO s described above, the Court has traditionally displayed considerable thoroughness when deciding issues of international law. Justice Story spent 16 pages defining the term “piracy” in United States v. Smith; Justice Gray spent 20 pages determining how the law of nations treated captured fishing vessels in The Paquete Habana; Justice O’Connor spent 11 pages defining the term “accident” in Air France v. Saks; and Justice Marshall spent 17 pages defining the term “lesion corporelle” in Eastern Airlines v. Floyd. In contrast, the Hamdan Court defined “armed conflict not of an international character”, determined the requirements of a “regularly constituted court” and decided what “judicial guarantees are recognized as indispensable by civilized peoples” in a little over 5 pages. It arrived at its conclusions without significantly reviewing the drafting history of Common Article 3 or the Additional Protocols, or investigating any state practice outside of this country. This departure from the more traditionally thorough consideration of international treaty issues prevented an identification and analysis of the competing values of accountability and universality underlying the Geneva Conventions. It also eschewed any examination of the sources used to define the substantive rights being granted. Finally, the plurality’s use of inflammatory comparisons between World War II summary executions and the procedural protections offered by the military commissions reflected little credit on the plurality’s analysis while potentially inviting the heavy-handed legislative response that followed.



* Assistant Professor of Law at Ohio Northern University Pettit College of Law. This article evolved from lectures on the international law aspects of the Hamdan opinion that I delivered at the UC-Davis School of Law, the University of the Pacific McGeorge School of Law, the University of Notre Dame Law School and the Ohio State Moritz College of Law and from my public debates on the subject with Dean John Hutson of the Franklin Pierce Law Center and Professor Brad Roth of Wayne State University Law School. I would like to thank Professor John Paul Jones of the University of Richmond School of Law and Professor Bobby Chesney of the Wake Forest University School of Law for their review of this article. 1 See e.g. Amnesty International, Supreme Court's Ruling - A Victory for Human Rights found at < ndex/ENGAMR511012006?open &of=ENG-2M4>; see also Jefferson Morley, World Opinion Roundup, Washington Post online < /worldopinionroundup/2006/07/guantanamo_r eaction_seen_as_us.html> 2 See Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2760 (2006). 3 See id. 126 S.Ct. at 2798. 4 Particularly with regard to treaty interpretation, see Air France v. Saks, 470 U.S. 392, 399 (1985); see also Maximov v. United States, 373 U.S. 49 (1963) (although there have been disagreements over whether the Maximov standard required the Court to examine the intent of the parties even if the treaty language is clear (see United States v. Stuart, 489 U.S. 353 (1989) (Scalia, J. dissenting)) there has not been disagreement over the need to consult such language where ambiguities exist). 5 U.S. v. Smith, 18 U.S. 153 (1820). 6 The Paquete Habana, 175 U.S. 677, 700 (1900). 7 Air France v. Saks, 470 U.S. 392 (1985). 8 See id. 486 U.S. at 699-700. 9 Air France v. Saks, 470 U.S. at 399. 10 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva II]; Geneva Convention Relative to the Treatment of Prisoners of War,

opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva IV]. 11 Id. 12 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]; HYPERLINK " 08d9b287a42141256739003e63 6b/d67c3971bcff1c10c125641e0 052b545" Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609; HYPERLINK " ?handle=hein.journals/intlm26&c ollection=ustreaties&id=582" \t "_blank" 26 I.L.M. 568 (1987);† HYPERLINK " reaties&handle=hein.ustreaties/ka v02377&id=1&size=2&set_as_cu rsor=0" \t "_blank" S. Treaty Doc. No. 100-2 (1987) [hereinafter Protocol II]. 13 As of the publication of this paper 166 states (out of 194) are parties to Protocol I and 162 states are parties to Protocol II. The United States has signed both Additional Protocols but neither has been ratified by the Senate. This is partially due to executive disagreement with the provisions of Protocol I that provide greater protections to irregular armed groups than previously found in the Geneva Conventions. The Senate, however, has declined to give its advice and consent to Protocol II in spite of two executive transmittals requesting consent to ratify or accede to the treaty. For more on the ratification history of these treaties see Geoffrey S. Corn, Taking the Bitter with the Sweet: A Law of War Based Analysis of the Military Commission, 35 Stetson L. Rev. 811 (2006). 14 See Geoffrey S. Corn, Hamdan, Fundamental Fairness, and the Significance of Additional Protocol II, 2006 Aug. Army Law. 1 (discussing the extent to which the United States recognizes the Additional Protocols as customary international law). 15 Geneva I-IV, Art. 2. 16 The protections apply to “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness,

wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

––––– The application of the preceding provisions shall not affect the legal status of the Parties to the conflict 17 GENEVA III COMMENTARY 34; see also 2-B FINAL RECORD at 326 (the delegation from the Soviet Union used this term somewhat derisively implying that the protections offered by Common Article 3 to non-international conflicts paled in comparison to those offered by the Conventions as a whole to international conflicts. 18 See Hamdan 126 S.Ct. at 2795-96. 19 See id. 126 S.Ct. at 2797-98. 20 Id. 21 Hamdan 126 S.Ct. at 2795. 22 Hamdan 126 S.Ct. at 2796. 23 GENEVA IV COMMENTARY 51. 24 GENEVA III COMMENTARY 32. 25 See 2-B FINAL RECORD at 331332 (examples of this include the statements of the Danish and Swiss delegations indicating that the scale of the conflict would determine when such protections would attach). 26 Id. see also 2-B Final Record at 46-50 and 90 (delegations from the United States, Italy and Monaco discuss the importance of reciprocity (respect for the Convention exhibited by the rebels), although Italy and Australia also indicated their reservations about incorporating a requirement for reciprocity into draft Article 2 paragraph 4 (which became Common Article 3). Also statement of Mr. Siordet of the ICRC confirming that the insurgents were intended to be bound by this article.) 27 Id. at 32-33. see also 2-B FINAL RECORD at 48, 99, 129, 330, 331, 333 (statements of the

Soviet, Australian, Joint Committee, Burmese, Danish and Venezuelan delegations respectively indicating that these protections were not applicable to mere bandits, partisans or criminals). 28 Id. 29 Id. 126 S.Ct. at 2796. 30 See GENEVA IV COMMENTARY 340. 31 See GENEVA IV Art. 66. 32 See GENEVA IV COMMENTARY 340. 33 See I ICRC TREATISE 354-57. 34 See ICCPR Art. 14 35 See Hamdan 126 S.Ct. at 2804 (Kennedy, J., concurring). 36 See id. 37 Kennedy also found the use of military lawyers (rather than judges) on the panels as being problematic. This also makes little difference from an independence/impartiality standpoint as the only difference between military lawyers and judges is a threeweek course at the service JAG school. 38 See Hamdan 126 S.Ct. at 2797 (having found in his concurrence that the military commissions were not “regularly constituted” Justice Kennedy found it unnecessary to reach the question of indispensable judicial guarantees and declined to join Justice Stevens’ plurality opinion on that issue). 39 Id. quoting Geneva III, Art. 3 ∂ 1(d). 40 The relevant paragraph is Protocol I Article 75, paragraph 4 which provides the following: 4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the

offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilt according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt; (g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure; (i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and (j) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised. 41 Hamdan 126 S.Ct. at 2797. 42 See Protocol I, Art. 75, supra note 80. 43 See Protocol I, Art. 1 ∂ 3 provides that “[t]his Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.” 44 See Note 80 supra. 45 Hamdan 126 S.Ct. at 2798 (Stevens actually mentions the necessity for access to evidence twice on this page). 46 See Notes 79 and 156 supra. 47 See Hamdan 126 S.Ct. at 2798 n. 66 48 V THE UNITED NATIONS WAR CRIMES COMMISSION, LAW REPORTS OF TRIALS OF WAR CRIMINALS at 25 (William S. Hein & Co., Inc. 1997) (1948) [hereinafter WAR CRIMINALS] 49 Id. at 25-31. 50 See id. at 66-69. 51 See id. at 70-71 (the Commission convicting Gen. Hisakasu cited the following four factors in support of its opinion: 1) lack of defense counsel, 2) no opportunity to prepare a defense, 3) no witnesses were allowed to appear and the Tribunal ignored Houck’s evidence concerning the intent of his attack, 4) the brevity of the proceedings). 52 See Hamdan, 126 S.Ct. at 2798 n. 66.

This article is an abridged version of an article that is forthcoming in the University of Richmond Law Review. The full text of that article, including more extensive discussions of the Court’s opinion, Justice Kennedy’s concurrence, the negotiating histories of the Additional Protocols and the implications for the Geneva Conventions can be found at:



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The Writ (Fall 2007)  

The magazine of Ohio Northern University's Pettit College of Law.

The Writ (Fall 2007)  

The magazine of Ohio Northern University's Pettit College of Law.