News - Capital University Law School

June 2020

Jeff Ferriell

One consequence of the COVID-19 pandemic could be the cancellation of college football games. In a normal year, mid-major schools can rely on receiving substantial revenue for participation in non-conference games. This is because of “guarantee games,” which provide a big payday to smaller schools who are scheduled to play against powerhouse teams like The Ohio State University.

So who will take the financial hit if these games are canceled due to the pandemic?

Jeffrey T. Ferriell, the Geraldine W. Howell Professor of Law at Capital University Law School, was asked by the Columbus Dispatch to review the contracts Ohio State signed with Bowling Green State University and the University at Buffalo for games scheduled this fall.

The contracts provide a guaranteed payout of $1.2 million from OSU to Bowling Green and $1.8 million to Buffalo but contain a force majeure clause, spelling out specific events that allow cancelation without financial penalty to the Buckeyes. These include “other unforeseen catastrophes or disasters beyond the control of either party,” according to the article in the May 27, 2020, Dispatch.

A pandemic or public health crisis is not specifically mentioned.

“The question is whether the other unforeseen catastrophes or disasters could include the pandemic or government interference,” Professor Ferriell told the Dispatch. He went on to explain that the court will have “to figure out what unmentioned things did the parties refer to or intend to be included” in the force majeure clause.

If government regulations prohibit the game from being played, Professor Ferriell said it would be “illegal to play the game,” which could free OSU from any obligation to pay the other schools.

Kobil, Dan
Capital University Law School Professor Dan Kobil says “those who wish to eradicate racial bias from our legal system must turn to the ballot box.”

Professor Kobil authored a guest column that appeared in the June 13, 2020, Columbus Dispatch in response to the racial justice protests following the killing of George Floyd by a Minneapolis police officer.

In his column, Professor Kobil noted that minorities are unquestionably subjected to pervasive discriminatory treatment by the criminal justice system. He argues that while systemic discrimination could be addressed by the courts, it is unlikely that the judiciary will do so given the current jurisprudence of the U.S. Supreme Court. Thus, the eradication of such disparate treatment will be up to our elected officials.

“Political leaders have significant powers to stem the tide of racial discrimination in law enforcement, if they are willing to use them,” Professor Kobil wrote.

He stated that these powers were employed by the Justice Department under President Obama to reign in discriminatory practices by local police, but were rolled back under President Trump.

“Martin Luther King Jr. argued that ‘the arc of the moral universe is long, but it bends toward justice,’” Kobil wrote. “In November 2020, we will have a crucial opportunity to decide how long that arc toward justice will take.”

February 2020

Mark Brown TN
Newton D. Baker/Baker & Hostetler Professor Mark R. Brown is seeking an opinion from the U.S. Supreme Court on whether First Amendment rights were violated during an effort to get marijuana decriminalization measures on an Ohio ballot.

Election officials in Portage County refused to certify the ballot initiatives in August 2018 citing the state’s gatekeeper law, while the same measures were approved in other counties.

Professor Brown is representing William T. Schmitt, Chad Thompson and Debbie Blewitt who sued the Secretary of State claiming violations of their First and Fourteenth Amendment rights. U.S. District Judge Edmund Sargus granted a temporary restraining order and ordered the initiatives to be placed on the November 2018 ballot.

The federal court later barred Secretary of State Frank LaRose from invoking the gatekeeper function without a proper review process. The state appealed, and in August 2019, the Sixth Circuit Court of Appeals reversed the decision stating that Ohio did not violate the rights of the petitioners.

Professor Brown, who holds the Newton D. Baker/Baker and Hostetler Chair of Law, was quoted by Law360 as saying there is increased confusion in the lower courts. “Given this disarray in the circuits and across the country, petitioners hope the Supreme Court will offer clarity,” he told the news service

January 2020

Kobil, Dan
Capital University Law School Professor Dan Kobil was consulted for a recent story in the Louisville Courier Journal on pardons and commutations granted by former Kentucky Governor Matt Bevin.

The article, which cites the 650 pardons and commutations granted by Bevin in the month after he lost re-election last November, discusses possible changes to gubernatorial powers granted by Kentucky’s Constitution.

Professor Kobil, a clemency expert, questioned the justification for one of the pardons involving a convicted child rapist. In the article, Kobil states, “The problem is when a governor has the hubris to think he can decide whether a little girl has been raped or not.”

The article noted that Kentucky currently has the fewest restrictions of any state for gubernatorial clemency. Bevin was not required to consult with anyone – including the victims and prosecutors – prior to granting the pardons and commutations.

It was noted that changes were made to clemency powers in other states following pardons and commutations granted by other lame-duck governors.

December 2019

Capital University Law School Dean Rachel M. Janutis addressed “How Law Schools Can Help to Create a Healthier Profession” at the State of Florida’s Health & Wellness, Public Awareness, Professionalism and the Law Educational Seminar November 15 in Fort Myers, Florida.

Specifically, Dean Janutis discussed recent research demonstrating the extent to which the “hidden curriculum” in law schools adversely affects law student well being. The hidden curriculum refers to all of the ways both inside and outside fo the classroom that a law school inculcates in students the norms and values of the profession. Dean Janutis recounted CapLaw’s efforts to make the “hidden curriculum” more student-friendly. She highlighted programs such Fall Integrated Core Competencies and 1L midterm week which provide faculty with more opportunities to directly support student learning and help reduce student anxiety by helping students better understand academic expectations. She also discussed Professor Halle B. Hara’s autonomous support approach to academic succes. Finally, she touted programs such as the student-alumni conversations, CAP and the Career Development Blueprint which allow students ample opportunity for vocational exploration and professional identity formation.

Florida’s continuing legal education (CLE) seminar was presented by Ita M. Neymotin, regional counsel Office of Criminal Conflict and civil regional counsel Second District Court of Appeal; Henry Lee Paul, student education & admissions to the Florida Bar Committee; and the Lee County Bar Association. Neymotin, who spoke on “Building a Balanced Life through Professionalism, Mental Health and Well-being” is a CapLaw alumnus, who has had a high-profile career as both a public and private practitioner.

Kobil, Dan
USA Today interviewed Constitutional Law Professor Dan Kobil for a story on President Donald Trump’s intervention in the case of Navy SEAL Eddie Gallagher.

Gallagher had been charged with war crimes and, although he was acquitted of killing an Iraqi civilian, he was demoted for posing for a picture with the dead man’s body. The presidential interference allowed Gallagher to retire from the military circumventing a formal review, which could have led to his discharge as a SEAL. Gallagher had lobbied for his cause through several appearances on Fox News. Trump agreed with Gallagher’s portrayal of his case as mistreatment by the military justice system.

Professor Kobil told the newspaper that Trump’s intervention is designed “to reward political supporters and to benefit those who would benefit him politically. What he’s doing is serving up red meat to the base.”

It’s not the first time Trump has used his Constitutional powers to grant clemency. Although he did not pardon Gallagher, he has pardoned and commuted the sentences of more than a dozen conservatives, including two other military veterans who also were frequent guests on Fox News.

November 2019

Lance Tibbles TN
Professor of Law Emeritus Lance Tibbles is one of 137 biomedical ethics scholars who have signed an Amici Curiae brief before the U.S. Supreme Court.

Kentucky’s Ultrasound Informed Consent Act, which mandates that particular information be given to patients before receiving an abortion was struck down on First Amendment grounds at the trial court, but was upheld on appeal to the Court of Appeals for the 6th Circuit. The plaintiffs have petitioned for Writ of Certiorari to the U.S. Supreme Court. The Amici Curiae brief argues that the statute is contrary to established biomedical ethics principles and undermines rather than supports informed consent.

Whether the law deviates from informed consent principles is the core question in the case. The brief argues that the law deviates from any plausible understanding of what is ethically required of physicians in the context of soliciting informed consent, as well as that the law deviates from foundational moral principles and requires physicians to act contrary to medical ethics.

The brief argues that a mandated ultrasound, accompanied by a narration and heartbeat auscultation that are required to be performed regardless of the patient’s wishes and needs, reflects no understanding of the long history of informed consent.

A mandated ultrasound, accompanied by a narration and heartbeat auscultation that are required to be performed regardless of the patient’s wishes and needs, reflects no understanding of informed consent that has existed in the long history of that concept.

Anderson, Scott TN
During the spring 2019 semester, Professor Scott Anderson presented at the annual Rocky Mountain Legal Writing Institute Conference in Las Vegas. During the summer semester, he presented at the ninth biennial international Storytelling in Law Conference, in Boulder, Colorado. And during the fall 2019 semester, he presented at the second annual Political Theology Network Conference, in New York City.

Professor Anderson presented on a variety of topics. In Las Vegas, his presentation was entitled “From LSAT to Law School,” a comparison of the LSAT’s “logic games” section and the analytical method taught in law school’s first year. In Boulder, Professor Anderson gave a talk entitled “Truth Isn’t Truth: Legal Storytelling under the Normative Constraints of Viability, Validity, and Verifiability.” In New York City, at a conference co-hosted by Columbia University and Union Theological Seminary, Professor Anderson explored the underlying rhetorical structure of Martin Luther King, Jr’s “Letter from Birmingham Jail” in a presentation entitled “Dr. King and Chiasmus: The Letter’s Power to Persuade.”

September 2019

Brown TN
Professor Mark R. Brown shared his views on the intent of the Electoral College in an op-ed article published in the Sept. 23 issue of the Columbus Dispatch.

A constitutional law expert, Brown wrote that the Electoral College provided a reliable framework in the days before official ballots to narrow the field of presidential candidates. While our choices today may be limited compared to America’s early elections, it does not change the intent.

“Forcing electors to vote for popularly preselected candidates vitiates the intent behind the Electoral College. The framers expressly chose a middle ground between a popular election, state appointment and congressional selection,” Professor Brown wrote. “Denying to electors their proper discretion renders the Electoral College meaningless. It rewrites the constitutional compromise.”

Kobil, Dan
Capital University Law School Professor Dan Kobil, a lifelong birder, is sounding the alarm on the need to elect environmentalists in order to save North America’s bird population.

In a Sept. 27 opinion piece published in the Columbus Dispatch, Kobil observed that a recent report in Science magazine revealed that the continent’s bird population has declined by 3 billion birds since the 1970s.

The reasons are varied: “loss of habitat driven by unchecked development, increased pesticide use, deforestation, climate change and the massive reduction in insect numbers that is occurring worldwide,” Professor Kobil wrote.

But, he added, there is hope. “Because humans have caused this catastrophe, we can also avert it. And we know we can fix such problems because we have done it before.”

Professor Kobil pointed to the 1970s Endangered Species Act, which protected the bald eagle, and the Clean Air and Clean Water acts, which sought environmental protections. He said studies show most Americans favor strong environmental laws and reversing climate change.

He wrote that politicians are counting on apathetic voters and encouraged electors to toss out those officials who aren’t committed to saving the planet.

Dean Rachel M. Janutis and Professor Daniel T. Kobil were panelists for a discussion about the suffrage movement to the current wave of women running for elected office. The panel was part of an Ohio State Bar Association event featuring Dr. Jane Sherron De Hart, author of “Ruth Bader Ginsburg: A Life,” and “Sex, Gender, and the Politics of the ERA.”