by Olivia Worthington
The decision over whether police need to obtain a search warrant to examine cell phone information of potential perpetrators is a legal battle that has been moving up through the court systems in the United States. In a time period that is increasingly digital, legal issues are arising over new technology that need to be judicially interpreted to abide by the existing laws of the United States, such as search warrants and arrests. One of these legal issues was presented as an appeal to the Supreme Court on November 9, 2015, but was rejected by the nine justices who declined to make a decision on this matter. The appeal was drafted by Quartavious Davis, who was convicted of a string of robberies in 2010 in part by police using location services on his cellular device to track down their suspect (1). The conviction by Davis was challenged on the grounds of police not obtaining a warrant before asking his service provider for his location information. After the U.S. circuit court of appeals ruled in favor of the police not having to obtain a warrant, Davis brought his challenge to the Supreme Court level before ultimately being turned away (2). This specific example has raised larger questions over issues involving technology and the law of the United States. It is safe to say the Founding Fathers likely did not anticipate the large role cell phones now play in society when the Constitution was drafted, but it is now the responsibility of the judicial branch to interpret laws to fit to the technologically advanced time period. One such law is the Stored Communications Act, a federal law created in 1986 that stated the government does not need probable cause to obtain customer records (3). Prosecutors only need to show “reasonable grounds” for records being relevant to the current investigation. Laws on search warrants for physical property say that law enforcement officers must show probable cause to justify a search before a judge or magistrate will grant a search warrant (4). The Fourth Amendment states that it does not need to be shown that the item or person being searched committed a crime, but only probable cause is required. However, many years have passed since the Fourth Amendment and search warrant laws were put into effect, and this time gap has come with technological advances in how suspected individuals can be searched and ultimately convicted. Civil liberties groups argue that the Stored Communications Act passed in 1986 did not anticipate the way mobile devices can now track a user, as well as how a wealth of information is stored for each individual user (5). The American Civil Liberties Union lawyer representing Mr. Davis is arguing that police need probable cause and a warrant to search and utilise technology on a suspect’s cell phone. Davis’ cell phone provider gave law enforcement officials his location information, but no warrant was presented when the police obtained this information. It remains to be seen if Davis will continue his case, but he is facing 1,941 months in prison without possibility of parole for his crimes if he is not successful. New laws have already begun to be enacted as cell phones have become more prominent, and it is likely more will occur as technology progresses. Distracted driving laws deal with cell phone use while operating a vehicle, and fourteen states prohibit all cell phone use while driving. This law is a primary enforcement law, which means police can cite an individual for talking on a cell phone without any other offense taking place. In addition to this, forty-six states have banned texting while driving as of November 2015. It is likely texting while driving in all states will eventually be banned, and many citizens support banning cellphone use completely that can distract drivers and cause fatal accidents (6). These examples of laws adapting to the digital age will likely increase, and Davis’ case continues to bring up the interpretation of laws into a modern and advanced era. Although Quartavious Davis committed multiple robberies and likely can not appeal his way out of a lengthy prison sentence, his case has brought up fundamental questions the judiciary branch in the United States will soon have to answer. The Constitution of the United States is a living document that was designed to be able to provide for laws of the United States for many years, and the United States Supreme Court is the highest authority in interpreting laws as they are questioned. The Supreme Court did decline to decide on Davis vs. United States, but similar cases are building up in lower-level courts and it is likely federal authority will ultimately be necessary. Civil liberties groups are campaigning for a decision on the grounds that no search warrant means no accessibility to cell phone records is allowed, and the new law on this subject will have to reflect this concern (7). A technological age will have to be reflected in new law adaptations, and the Davis case is one example in a plethora of court cases currently in the system that will need to be ruled upon with new digital advancements in mind. Works Cited
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I’m here today with Mr. Mark Patterson, a partner at Cincinnati’s law firm, RKPT (Robbins, Kelly, Patterson, and Tucker).
Q: Hi Mr. Patterson, thank you very much for taking the time to meet with me today. In your position as a lawyer, you cover a variety of areas, including Estate Planning, Wills and Trusts, Probate and Trust Administration, and Business Law and Planning. What are some of the day-to-day responsibilities of your job? A: The day to day responsibilities as a lawyer would be meeting with clients to found out what their needs are and how we can help them, drafting estate planning or probate docs as needed, drafting corporate docs as needed, and answering clients’ questions either by phone call or by email that they may have regarding various matters that may pertain to them personally or to their business. It’s a combination of spending time with clients and preparing documents as needed depending on what their situation is. Sometimes it’s not just about preparing documents, but also just giving advice on things. Q: Now you’re an established partner at RKPT, but which other positions did you hold before you became a partner? In other words, what is your background in the field of law? A: While I was in law school, probably the last few years of law school, I was working in the legal department of a company here in Cincinnati. I was a clerk, helping out another lawyer who worked there. I think there were 2 lawyers in the legal department so a lot of it was assisting them. A lot of it was reviewing contracts, then the company would enter into helping them review and revise contracts. Q: What is it like to work with the other partners in your firm? A: I like working in a partnership. It gives me the ability to get help from someone who has different expertise than I do. Even if it’s the same area, another lawyer might have seen a case involving it before or see it in a different way than I do. If I can go sit down in one of my law partners’ offices and tell them the facts of the case, I can get their ideas about how the case might be handled. Working in a law firm like that is really helpful because other areas are a sounding board. It’s really helpful because opposed to a sole practitioner, they might not have anyone to talk to about these things. Q: Did you know when you entered law school that you wanted to go into Estate Planning, or did you decide that along the way? What made you choose to go into this field? A: I knew I wanted to do some type of business law and I think pretty early on in law school I knew I wanted to do estate planning as well. I’d been exposed to the business world, my dad had his own little small company, that I actually worked at for a couple of years, so I’ve always been kind of partial to people that have their own companies. I knew helping people with wills and trusts would be something I liked. I learned in law school I did not want to be a litigator, so I learned that going into law school, I didn’t want to go into the court room and argue with people. I found out that probably wasn’t a good fit for me. There’s a lot of satisfaction in helping people. My major in college was sociology and when it all comes down to it, I think a lawyer is a person who is always there to help clients solve their problems. Estate planning and business law give me a lot of opportunities to do that. Q: What kinds of legal documents would you advise that college students need to have, considering this interview is for a law review journal at an undergraduate university? A: The kind of documents that I have prepared for children of my estate planning clients that I think any person who has obtained the age of eighteen, because under our legal system when you are 18 you are considered to be an adult. Parents can’t speak if you are 18 or older. One of the things I recommend anyone over the age of 18 have is that they’ve signed a financial power of attorney, naming one or both of their parents as agents to take care of their finances if they’re sick or cannot take care of the finances themselves. I also recommend a health care power of attorney. The child would give parents the author to make decisions if couldn’t make it themselves. Then depending on their situation, if they’ve worked and been able to spend some money I might create a simple will for a student. The health care and financial power of attorney are the most important, then the simple will. Q: If a student graduates and they’re looking to start their own business, what does that process look like? What kinds of documents and legal concerns do they need to take care of in order to start their own business? A: Our advice is you want to run your business through some type of a business entity, so if something goes wrong, the business entity is liable, not the individual business owner. It’s the liability protection plan, so it’s a business corporation or a limited liability company. Those are the two types of business entities we would have. Q: What if a student wants to go into a partnership with another student? How do they go about that and what kinds of documents are necessary before beginning? A: Again, a partnership is a type of entity. It requires two or more people to come together to form the entity, but unlike a corporation or a limited liability company, members of the partnership are liable if the business goes wrong. It’s an older type of business, we don’t see many partnerships anymore. They both would be the owners of the business or corporation, so we still recommend they use one of those entities (the business corporation or a limited liability company) even though there’s two or more owners. Q: Thank you for making time for this interview today. I know it will be very beneficial and informative for the students who read our website. I understand that your firm actually has something called a student packet, which I’m assuming would incorporate many of the things we discussed. A: If I’m working with clients and they say you know my students are heading off to college, that’s the financial and health care power of attorney and maybe a simple will. I tell parents if you have those documents signed and your children need help, it’s signed and ready to go. When I get clients that are concerned, after I’ve been working with parents and talking to them about their children, that’s where it comes in. Q: Thanks again for your time and the interview. Have a great Thanksgiving! by Maya Tener
June 28, 2014 saw a fracking disaster in Monroe County, Ohio that the residents will not soon forget. A ruptured hydraulic line sprayed flammable liquid on sweltering equipment. Twenty chemical trucks were immersed in flames and at least 30 explosions erupted causing shrapnel-like bits to cover the site. The inferno took nearly a week to extinguish. Over 70,000 fish were poisoned and the safety of the drinking water was threatened. All this occurred because toxic chemicals were released in the process of retrieving oil and gas in what is touted as a relatively safe practice called fracking. Ohio is not alone; data obtained from leading oil and gas producing states indicates that, more than 180 million gallons of wastewater spilled from 2009 to 2014 in incidents involving ruptured pipes, overflowing storage tanks, other mishaps, or even deliberate dumping, resulted in tainted agricultural land, poisoned drinking water, and the mass die-off of multiple flora and fauna. Well failures and leaks may be signs of broader problems which raises concerns about how to adequately police the disposal of contaminated water from fracked sites before so much pollution is dispersed that the damage cannot be reversed. Hydraulic fracturing and horizontal drilling gives petroleum engineers and companies access to oil shale, a densely packed sedimentary material formed millions of years ago containing oil and natural gas combined “like an egg in cake batter” within densely packed rock. To gain access to the elusive gas and oil, the drill is first applied vertically, and then the drill bit is turned horizontally through the seam of the rock. Most of the oil and gas is trapped small, difficult to access, fissures. Next a mixture of water, sand and chemicals is pumped deep into the earth causing the rock to crack and forcing the oil and gas trapped underground to escape with the water and flow to the surface where it is harvested. In Ohio’s case, the depth of Utica Shale decreases, yielding large amounts of natural gas, natural gas liquids and crude oil to wells drilled in eastern Ohio. Simple drilling never allowed the industry access to the fissures that contain the valuable material because the rock isn’t permeable and the flow is too “tight”. The process uses not millions but tens of trillions of gallons of water which must then be disposed of in some manner. In many cases injection wells are used to dispose of the waste water. Currently, the US has over 172,000 of these “deep injection” wells located in limestone or sandstone encased rock formations thousands of feet below the surface. While some of the wastewater is treated at private treatment facilities, where it is cleaned, at least some amount of fluid, or solid “cake,” still needs to be disposed of by injecting it into the ground, storing it in above ground tanks or taking it to a landfill. The voracious consumption of water resulting from fracking and in turn, enormous amounts of polluted water must be contained after the process. Until recently, scientists believed the wastewater entrapped in the deep injection wells would remain safely entombed for centuries but evidence suggests that this is not true. Records from disparate corners of the United States show that wells drilled to bury this waste deep beneath the ground have repeatedly leaked, sending dangerous chemicals and waste gurgling to the surface or, on occasion, seeping into shallow aquifers that store a significant portion of the nation's drinking water. Ohio has a whooping 210 such deep injection wells. To date, each state regulates fracking, which results in a patchwork of legislation some of which is more stringent than others. The legislation and debate in Ohio and the adjacent area is archetypical of the controversy raging in other regions where there are high concentrations of shale pending excavation. Regulation of waste chemicals is minimal and there is legitimate anxiety about the possibility of the fracking fluid leaching into aquifers and groundwater. Fracking has evaded the Safe Drinking Water Act (SDWA), one of the most comprehensive and rigorous Federal water protection laws. “The United States Congress passed the SDWA in 1974 to ensure safe drinking water for the American public.” Part C of the SDWA requires that the Administrator of the United States Environmental Protection Agency establish underground injection control regulations in order to protect underground sources of drinking water from contamination by waste. Individual states may acquire primary enforcement responsibility for these regulations by adopting and implementing an underground injection control program in compliance with EPA requirements. In the absence of an approved state program, the EPA will implement a program for the state. Fracking is conspicuously excluded from regulation under the SDWA. This exclusion of fracking is embodied in the Energy and Policy Act of 2005 (EPAct) which amended the SDWA’s definition of “underground injection” as provided in the § 300h, stating that:“underground injection” means only “the subsurface emplacement of fluids by well injection,” exempting, “(i) the underground injection of natural gas for purposes of storage;” and “(ii) the underground injection of fluids or propping agents...pursuant of hydraulic fracturing operations.” Most recently the U.S. Bureau of Land Management has promulgated a rule addressing the disposal of contaminated fracking water. The new rule all but bans pits at well sites, requiring wastewater to be stored in above ground metal tanks. Operators may apply for an exemption to use a lined pit only if the use of a tank is “infeasible for environmental, public health or safety reasons” and the pit would meet other specified requirements, including that it be of sufficient distance from water sources, usable groundwater, public places and unstable areas. However, the rule only applies to tribal reservations and federal land. In Ohio, The Department of Natural Resources (ODNR) regulates deep well injections under the Underground Injection Program (UIC), a rule developed by the EPA in 1983. This rule allows approximately 98 percent of all brine to be disposed of by injection back into brine-bearing or depleted oil and gas formations deep below the surface. Ohio has embraced fracking, and the porous geological formations in eastern Ohio — combined with licensing policies that are far less restrictive than in Pennsylvania — make Ohio attractive for injection disposal well operators. “While disposal through (injection wells) was adequate to service Ohio's conventional petroleum production, brine brought to Ohio from the Marcellus shale-producing regions of Pennsylvania and West Virginia is already straining the capacity of Ohio's existing injection well infrastructure,” said Jeffrey Dick, chairman of Youngstown State University's Geological and Environmental Sciences Department. The lack of regulation and monitoring creates a risk to aquifers and drinking water for not only Ohio, but any other states that have waters connecting to the Great Lakes. These environmental concerns are pitted against the economic benefits that Ohio receives from each barrel of water disposed of here. Many of the same environmental challenges presented by shale gas production would exist if conventional gas production were expanded, says Dr. Brian Lutz assistant professor of biochemistry at Kent State University. He adroitly states: "We have to accept the reality that any effort to substantially boost domestic energy production will present environmental costs. Both sides are aware of the problems that may emanate from this practice but debate rages on perhaps at the peril of our residents health. Works Cited 1 McCauley, Fracking Fallout: New Analysis Reveals Over 100 Million Gallons of Toxic Wastewater 2 Spilled Since 2009, Common Dreams, 2015 3 Rosenbaum, After Earth Day, pg. 3, 2014 4 Maugeri, Oil: The Next Revolution, pg. 42-44, 2012 5 Utica Shale - The Natural Gas Giant Below the Marcellus, Geoscience News and Information http://geology.com/articles/utica-shale/ 6 Thomas W. Merrill, Four Questions About Fracking, Case Western Reserve Law Review Vol. 63 Issue 4, 2013 pg.972 7 Deep Injection Wells: How Drilling Waste Is Disposed Underground, NPR https://stateimpact.npr.org/pennsylvania/tag/deep-injection-well/ 8 Merrill, pg.983 9 Lustgarten and ProPublica, Are Fracking Wastewater Wells Poisoning the Ground beneath Our Feet?, Scientific American, 2012 10 Karisny et al, Hydraulic Fracturing and Water Management in the Great Lakes, Case Western Reserve Law Review, Vol. 63 Issue 4, 2013 pg.1170 11 Hydraulic Fracturing Background Information, EPA http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/wells_hydrowhat.cfm, Last updated May 9, 2012 12 42 U.S.C. § 300h(d)(1)(A)-(B) (2006). 13 43 CFR Part 3160 Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands; Final Rule F.R. Vol. 80, No. 58 (2015) [[Page 16128]] 14 43 C.F.R. §3162.3-3(h)(1)(i)–(vii). 15 id 16129 16 Dan McGraw, Ohio: Land of injection wells, Crain’s Cleveland Business, 2013 17 Ibid 18 Dan McGraw, Ohio: Land of injection wells, Crain’s Cleveland Business, 2013 By Abby Newman The First Amendment illustrates the most basic human rights within a democracy. The Bill of Rights are the backbone of the American culture, making our country free. The right to protest, peacefully assemble and freely practice any religion are among the few aspects of this amendment that delineate freedom. Perhaps the most democratic clause of the First Amendment is the freedom of speech. Freedom of speech refers to the right to express any opinions without censorship or restraint, in all mediums of communications be it on the internet, with literal speech or the lack thereof (1). The right to express oneself freely is extremely important for a sovereign nation to properly function. However, this crucial right does not come without strings attached. All opinions, no matter how unfavorable, are protected under this right. As best said by the American Civil Liberties Union, “constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone” (2). When most people think of freedom of expression, only thoughts of justice and equality come to mind. However, the essence of the Constitution is not just to protect those who are perceived to be in the right, but all citizens, no matter how seemingly biased, partial or bigoted. Protection of unpopular opinions has existed for many years. For example, during the Civil Rights Era, the Supreme Court overturned the sentence of a member of the Ku Klux Klan, convicted for promoting a racist demonstration in the case, Brandenberg v. Ohio in 1969. The Supreme Court ruled that the sentence instilled by the state of Ohio violated Brandenberg’s right to free speech, for it did not create any “imminent lawless action” (3). While the opinions of the Ku Klux Klan are generally unfavorable, they are still protected under the first amendment. Similar situations have begun to occur recently, as racial tensions grow tighter and tighter each day. In September, the rights of Bryan Stascavage were challenged due to similar feelings of unpopularity. Stascavage, a student of Wesleyan University in Connecticut, was condemned for authoring a conservative piece criticizing the tactics of the Black Lives Matter movement. This was an extremely unfavorable work according to the students of Wesleyan University, which is an extremely liberal school. As a result of Stascavage’s article, he became of victim of hateful name-calling, and the funding for the university’s newspaper was cut in half (4). The series of events at Wesleyan University are a perfect example of the failure of this country to preserve some of its most important rights. College campuses are quickly becoming the resting place of failing sovereignty as of late. President Obama shared his opinions of the overprotection of feelings and the under protection of rights on college campuses in a speech in Des Moines, Iowa, where he said, "I’ve heard of some college campuses where they don’t want to have a guest speaker who is too conservative, or they don’t want to read a book if it had language that is offensive to African Americans or somehow sends a demeaning signal towards women. . .I’ve got to tell you, I don’t agree with that either -- that you when you become students at colleges, you have to be coddled and protected from different points of view. Anybody who comes to speak to you and you disagree with, you should have an argument with them, but you shouldn’t silence them by saying you can’t come because I’m too sensitive to hear what you have to say” (5). Even more recently, the United States is experiencing democratic turmoil in the events taking place at the University of Missouri. Extreme racial outbreaks have erupted in the last week at the University of Missouri. While racist tendencies and opinions are by no means appropriate, they are still protected under the first amendment, as is the ability to report on these current issues. This is a lesson that many students at the University of Missouri seem to not yet understand. Students began to protest the racist tendencies of the university by assembling on one of the university’s public lawns. However, students were seen holding signs reading “No Media”, which violates a journalist’s first amendment right to free speech (6). Beyond media prosecution, students offended by the racial outbreaks have also been encouraged to call the police whenever they feel personally victimized by the words of others. This is another large obstruction to the right to free speech. Essentially, by enacting this resolution, the University of Missouri is stripping virtually every student’s right to express him or herself. Ian Paris, the president of Young Americans for Liberty, a student group on Missouri’s campus, said "I think that's terrifying, because I have opinions every single day that people find offensive or hurt their feelings because I disagree with them" (7).
It is important for students to realize the importance of the first amendment. Without freedom of speech, this country could not be considered free. However, the ignorance toward the vitality of the amendment seems to be growing. The Student Vice President of Missouri, Brenda Smith-Lezama recently told MSNBC that "[she] personally [is] tired of hearing that first amendment rights protect students when they are creating a hostile and unsafe learning environment for [herself] and for other students here” (8). Little does Smith-Lezama know that the first amendment is exactly what keeps her learning environment from becoming hostile and unsafe. It is starting to seem like the incomprehension of the first amendment is infectious, as many students here at Ohio State have pointed out in their views toward the OSU 2 MIZZOU march, which took place on the oval on Friday. While it is important to challenge dissenting opinions, especially when they are hurtful, it is crucial to ensure that all views are protected. Everyone has a right to express his or her ideas, no matter who is offended by the expression. Freedom is not free. The democratic system is lined with endless compromise and unceasing give and take. There is a fine line between passion and sensitivity, and freedom speech should never fall in between the two. Works Cited
By Olivia Worthington
An interesting legal issue regarding children residing with their parents while in prison has garnered more attention in recent years. A 2011 study by the United Nations offices found that over 800,000 children are “separated from an incarcerated parent on a given day each year” (1). Additionally, the Department of Justice noted in 2007 that the number of young children with a mother in prison doubled within the past decade (2). Incarcerated mothers are often the primary caretaker of young children, which has led to an ongoing debate over whether these children should be allowed to reside in a prison with their parent. Questions arise over circumstances such as the severity of the crime, as well as the age of the child. Multiple countries have implemented age limits of which children can be with their parent. After this passes children are placed in foster care if no immediate relative is available or suited for care. This has sparked a debate whether it is right to separate a child from their parent because the parent is in prison, or if the parent’s crime warrants their child being put in foster care while they serve their time. Age limits of children residing in prison with incarcerated parents vary; in Cuba the age limit is one year old, while in Mexico children can remain with their parents until the age of six (3). Additionally, prison quarters are typically much nicer for parents who have young children living with them, which other prison inmates see as extremely unfair. Some jurisdictions provide special food and educational services for the children, while some are less conciliatory. This has become a large international issue, as countries in the European Union are debating over the proper protocol to take. Currently policies vary greatly, and the goal is for one common law to apply equality to prison rules of children, although this process has been difficult. The United Nations Convention on the Elimination of All Forms of Discrimination Against Women in 1979 states that prisons must “ensure women with appropriate services in connection with pregnancy, confinement, and the post-natal period, and granting free services and adequate nutrition throughout this process” (4) This law is vague, and can be interpreted very differently across different countries. The United Nations also stated in Convention on the Rights of the Child that children deserve proper legal attention and special circumstances involving care (5). Much like the Constitution of the United States is a living document open to interpretation, these laws require different interpretations by the countries enforcing them. The United Nations also had minimum rules for treatment of prisoners, which include a nursery provided for children, although no time frame is given for this. The Bangkok Rules states that a child’s best interests must be considered in this decision (6). Yet, some argue that some children that are older could still be considered that living with their incarcerated parent is their best interest. The Library of Congress stated in documents future steps are due to be taken on this issue, but the foundation and results of these steps are not yet clear to the public. Another issue is the debate over whether the nature of the prisoner’s crimes can warrant alternate circumstances. If a prisoner is a serial killer, do they still have the ability to exercise these rights with their children? The laws are unclear, but countries have approached this issue differently with each prisoner depending on the nature of their violent crimes. One issue the European Union is currently debating is whether fathers should have the right to care for infant children in prison like mothers do, if the mother is unfit or unavailable to care for the child. Public opinion in multiple countries disagrees with the father having rights, but if a mother can care for a child until they are six years old, on what ground could a father in prison not partake in the same action? The rules enforced by the United Nations specifically apply to mothers, but the issue of fathers is certainly a grey area. A point often brought up in these legal discussions about laws concerning children with parents in prison is the psychological aspect of the child. Those against children in prison with their parents argue that it is psychologically damaging for a child to develop basic cognitive skills in a prison. Countering this, others believe a mother is needed to raise a child properly and that if the mother is in prison the child should initially be in prison with them too. Regardless of psychological factors, the laws about children in prisons are vague and interpreted differently across the world. Some children are immediately sent to foster care, while others remain with their mother in prison for up to six years. The United Nations Resolutions clearly rule in favor of care for pregnant mothers and their children in prison, but it is debatable as to what extent this occurs. The United Nations is expected to make more of a concrete resolution on this in recent years, but for now this legal issue remains open to interpretation and debate. Works Cited 1. Goiton, Hannibal. “Can Children Live in Prison with a Parent?” (Library of Congress) August 27, 2014. <www.loc.gov> 2. Parke, Ross D. “Effects of Parental Incarceration on Young Children” (US Department of Justice) <www.bjs.gov> 3. Library of Congress. “Laws on Children Residing with Parents in Prison” (Library of Congress) July 2, 2015. <www.loc.gov> 4. Library of Congress. “Laws on Children Residing with Parents in Prison” (Library of Congress) July 2, 2015. <www.loc.gov> 5. Goiton, Hannibal. “Can Children Live in Prison with a Parent?” (Library of Congress) August 27, 2014. <www.loc.gov> 6. Library of Congress. “Laws on Children Residing with Parents in Prison” (Library of Congress) July 2, 2015 By Lisa Hamant
I’m here today with Professor Katherine Hunt Federle, a faculty member at our own Moritz College of Law. Her areas of expertise include Children and the Law, Family Law, and Criminal Law. Q: Hi Professor Federle, I’m so glad you could take some time out of your busy schedule to speak with me today. A: No problem, it’s my pleasure. Q: You’ve worked as a public defender in the state of Washington. How long did you hold this position for and what were your day-to-day responsibilities as a public defender? A: I was there about a year and I was assigned to the misdemeanor unit. What I did was I traveled between two district courts. One was a rural district court and the other was a suburban, urban district court. I handled misdemeanor cases for individuals who couldn’t afford private council on their own. Q: You also represented children and adults in the Washington D.C. court system and in the federal courts. Can you tell me a little more about your experiences with that? A: Sure, when I was a public defender in the state of Washington, we also handled civil commitment proceedings. Under Washington law at the time, anyone who was being considered for an involuntary civil commitment because of mental health problems was entitled to a lawyer. At the time in Washington state, that also included children whose parents were attempting to civically commit them, so I’d had experience representing children and adults as a public defender. When I went to Washington D.C., I was a juvenile justice fellow at Georgetown and I represented predominantly juveniles and adults in the D.C. Court system. The juveniles were represented overwhelmingly in the D.C. court. I did have some federal court cases, but they were adults. In my second year of the fellowship, I was supervising third year law students who were representing juveniles in the D.C. court system. Q: What were some of the most interesting cases you got to work with during this time? A: The juvenile cases are confidential, so I can’t talk to you about those cases, but I will tell you about one interesting case. In fact, you can still see her today. Her name is Connie and she has been maintaining a protest in front of the White House for well over twenty years. If you’ve ever been to Washington D.C., you might have seen her. The president who was in office at the time was trying to move her out of the park. It’s a little public park across from the White House called Lafayette Park. Remember, all this was happening well before 9/11, so the security that was around the White House was considerably less. Connie was protesting what she viewed as the unauthorized use of force by the U.S. government. There are a number of police forces in D.C., one of which is a National Park Service, and they passed a regulation prohibiting camping. Because Connie is there twenty-four hours a day, seven days a week, they were alleging she was camping and she was alleging she was engaged in a first amendment protest. They filed criminal charges against her and I got the case. The case was dismissed, ultimately, because I was making the first amendment argument. The orders were coming down from the White House to move the protestors out of the park, so that was one of the more interesting cases I worked on. If you go today, you can still find Connie, she’s still there. Q: After working as a lawyer for many years, what inspired you to switch to teaching and become a professor? A: First, I was a public defender and then this opportunity arose at Georgetown. One of the things I found challenging about being a lawyer is that you’re moving enormous numbers of cases. I think I had maybe 75 cases a month. You’re moving a lot of cases and you don’t always get really interesting theoretical or legal issues. When I found teaching, that was another way I could engage in reform. One of the reasons I originally became a public defender was to really make a difference in social reform, so I thought through teaching I could start making a difference on a global level rather than just on the individual case level. The kind of teaching I’ve done has evolved over the years. I started out teaching students in clinics and helping them to become lawyers, but now I’m involved with the more traditional side in what I’m doing with students. I’m teaching them in the classroom, but I’m not going to court with them. In addition, I’m able to write about some of the interesting, theoretical problems that surround children and their role in the legal system. For me, this has been a logical progression for how I want to make changes to the legal system. Q: Do you want to speak about any of the specific writings you’ve done or that you’re doing now? A: I’m working on a book right now actually. It’s about an interesting murder case in New Orleans, involving a child who is twelve years old and was accused of killing his mother. The newspaper stories surrounding the case call him the worst boy in America. What’s really particularly interesting is that it happened in 1916 during World War I. What drew me to the case is much of the language used to describe him sounds like the conversations we have today. People were wondering where he got the gun, wondering how he could kill his mother, and saying he was a terrible person. There were questions raised abut his sanity, but they found him sane. There were debates about whether he should be tried as an adult. At the time, under Louisiana law, he had to be tried as an adult and the penalty was death—he would be hanged if he was found guilty. The case was very interesting in all the ways they would try to manipulate the case so it would remain in juvenile court and he wouldn’t be sent to death. The case drew headlines across the country. Remember that World War I was going on, so it was really interesting that he was getting front page news. Large numbers of women’s groups started massive letter writing campaigns to the district attorney, who received over 30,000 letters asking him not to try this child as an adult. It worked, he was tried as a juvenile, and was sent to a juvenile facility. Ultimately, he grew up, joined the circus on the west coast, and got married. It’s really a great story about redemption and the possibility of rehabilitation. What’s also interesting is he was white, but his parents were Irish immigrants and the Irish immigrant population around World War I was pretty despised, so it involves a lot about poverty and immigrant groups. It sounds like things we would hear today. Q: On a different note, I wanted to talk to you specifically about your interest in Family Law and Children and the Law, since it is your area of expertise. What college major did you choose to help you best prepare for a career in this field? A: I was a history major in college, with a political science minor. I don’t know if that necessarily helped me prepare for law, because law schools never really take a position on what major they find best. I think the most important thing is that we need to be able to read and think logically. It depends on what kind of law you want to do too. If you want to do patent law, it might help to have a science background. Q: What prompted you to want to specialize in this type of law? A: I came into the child side of it in an interesting way. I was working as a law student in a public defender office and a really interesting case came across the desk of the attorney I was working for. A year or so earlier, a child had been transferred to criminal court, and he was found not guilty. A year later, he was charged again with another unrelated crime and he was automatically tried in criminal court. I was given the task of saying he should be tried in juvenile court because he had never been found guilty in criminal court. I wrote a motion and a memorandum for the attorney and we won in the trial court. The case eventually made its way all the way to the Supreme Court in the state of Washington, where we we lost, but that set me on the path of thinking about juvenile issues. There’s a lot in law about children and their rights that is uncertain. I tend to write about the jurisprudential underpinnings of children’s rights and how we construct rights for children so they can receive better treatment in these systems. Family Law and Criminal Law stem from that, because children are charged with crimes and far more children will experience the effects of divorce than deal with being brought into a juvenile court system. Most people either deal with the criminal law side or the family law, civil side, but I deal with both sides and they’re often the same sets of children. The fact that I deal with both sides makes sense and it’s the same sort of issue for them. Q: What issues in today’s society relate to Family Law? What are some aspects of Family Law and Children and the Law that you emphasize in your teaching? A: Children in the Law looks at juvenile court, which deals with children who are charged with crimes, who may be abused and neglected, or who may be status offenders. Status offenders are offenses only kids can commit because they’re minors—juvenile court looks at that group of children. A delinquent child might also be an abused or neglected child, so the categories are fluid and we have to think conceptually about how we would treat them. In most jurisdictions, family court focuses on the dissolution of the family, such as issues pertaining to divorce, custody, and property distribution. Family courts may also deal with other kinds of family law issues, but here in Ohio they are probate courts so you may be dealing with incompetent family members, wills and trusts, or the need to appoint a guardian for somebody. Those courses all relate, but we have a separate course on wills and trusts that would deal with those kinds of issues. Q: Lastly, the website lists Criminal Law, Family Law, Children and the Law, Adoption Law, and Advanced Issues in the Law of Foster Care as the classes you teach. Is there a particular class out of these you’re most passionate about? A: Oh gosh, that’s very hard. I’m very fortunate in that I get to teach classes I really like. Children and the law is my favorite; it’s nearest and dearest to my heart, but I enjoy teaching the other classes as well. Criminal Law, I get to deal with first-year, first semester law students and I get to help them make the transition to being law students. Family law is lots of upper-class students and they’re really passionate about the area, so they have interesting stories they can discuss. I like Adoption Law because a lot of students have experience with adoption, so we get really interesting discussions from very personal perspectives. Children and the Law I have students who are interested in that area and since it is my primary passion, it makes it a lot of fun. Q: Great, thank you so much for talking with me today. I appreciate you making time in your very busy schedule. I really learned a lot from this interview and I hope our readers enjoy it as much as I did. By Samuel Huryn
The Ohio Supreme Court released the results from the recent Ohio Bar Examination on last Friday, October 30th. For those who took the exam in July 2015, you can check if you passed at http://www.supremecourtofohio.gov/AttySvcs/admissions/Results/7292015.pdf, where the names of those who passed are listed alphabetically. According to supremecourt.ohio.gov, “[t]he passage rate for the 1,045 applicants who sat for the exam was 74.5 percent (779); out of 931 first-time test takers, 80 percent received passing scores.”1 This was slightly lower than the results from the bar exam offered the previous year, in July 2014, where “[o]ut of 1,173 applicants who sat for the exam, 902 (76.9 percent) received passing scores; out of 1,055 first-time test takers, 81 percent received passing scores.”2 However, bar exam passage rates have been declining nationwide over the past few years, so the dip is not altogether unexpected. If you took the exam in July but did not pass, do not worry - it can be taken again. Anybody wishing to practice law in Ohio is required to pass the Ohio Bar Examination. The Ohio Bar Examination “is administered twice a year by the Supreme Court, which regulates the practice of law in Ohio”, according to courtnewsohio.gov.3 The exam is composed of "three basic components: (1) an essay portion; (2) the Multistate Bar Examination (MBE), which consists of multiple choice questions; and (3) the Multistate Performance Test(MPT), which is a closed universe writing problem."4 For those who wish to take the bar exam, the deadline to apply is today, November 2nd. The next bar exam will be administered on February 23rd, 24th, and 25th. This information can be accessed here: http://www.supremecourt.ohio.gov/AttySvcs/admissions/calendar.asp 1 "July Ohio Bar Exam Results Released", (The Supreme Court of Ohio and the Ohio Judicial System), 2015 https://www.supremecourt.ohio.gov/AttySvcs/admissions/announcement/103015.asp 2 "July Ohio Bar Exam Results Released", (The Supreme Court of Ohio and the Ohio Judicial System), 2015 https://www.supremecourt.ohio.gov/AttySvcs/admissions/announcement/103015.asp 3 "July Ohio Bar Exam Results Released", (Court News Ohio), 2015 http://www.courtnewsohio.gov/happening/2015/barExam_103015.asp#.VjevB84vsgo 4 "About the Ohio Bar Exam", (Cleveland State University) https://www.law.csuohio.edu/lawlibrary/bar/ohio |
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