Most Recent News

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Professor Nance quoted in Pioneer Press article on the use of DNA evidence in court
(11/23/2009) - Dale Nance, John Homer Kapp Professor of Law, was quoted in "When it comes to DNA evidence, nothing's perfect," an article published Nov. 20 on twincities.com.

Getting such evidence isn't always reasonable, points out Dale Nance, a law professor with Case Western Reserve University School of Law in Ohio.

"It may be important to educate the jury about why," he said. "Maybe there was a material involved that made it impossible to lift prints or some reason why the DNA evidence couldn't be collected or the stains were mixed."

But whether or not DNA evidence has become almost essential to securing convictions, it doesn't stand alone, Nance said.

Nance and a psychologist with the Illinois Institute of Technology's Institute of Psychology made a surprising discovery in 2003.

Illinois jurors, given hypothetical cases to review, weren't swayed by DNA evidence presented without any other proof of guilt, such as witness statements.

"Many people think if you have DNA evidence, bingo, there's your case," Nance said. "But the way our jurors reacted, the evidence did not support that conclusion at all."

Read the article.

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Professor Mehlman's latest book cited in LiveScience column about elite athletes being human or android
(11/19/2009) - "The Price of Perfection," a recent book written by professor Maxwell Mehlman, Director of the Law-Medicine Center, was cited in an article published Nov. 18 on LiveScience.com, entitled "Today's Top Athletes: Human or Android?"

Read the article here.

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Professor Adler quoted in Bloomberg news service story about the ongoing health-care battle in Congress
(11/19/2009) - Jonathan Adler, law professor and Director of the Center for Business Law and Regulation, was quoted in "Obama Health-Care Battle in Congress Portends Fight in Court," an article published Nov. 19 on Bloomberg.com.

"There are cases out there in which the court has said it’s not going to worry too much about those formalistic distinctions,” Adler was quoted as saying. Additionally, Adler was cited as stating that he is “not dismissive” of the possibility the measure might be struck down.

"Even so, those chances are slim in light of the broad authority the high court has given Congress," said Adler, adding "from a standpoint of first principles, it’s potentially problematic, but the Supreme Court’s approach to the federal government’s powers has drifted quite a bit away from that."

Read the article here.

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Professor Scharf appears on Cleveland's National Public Radio to discuss upcoming al Qaeda terrorist trial
(11/18/2009) - Professor Michael Scharf, Director of the Frederick K. Cox International Law Center, appeared with Cleveland State Dean Geoffrey Mearns on WCPN’s "The Sound of Ideas" on Nov. 16, to discuss the Obama Administration’s announcement that accused 9/11 mastermind Khalid Sheikh Mohammed and four others will stand trial in federal court in New York City.

Listen to the show here.

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Associated Press article about alleged Cleveland mass murder Anthony Sowell cites Professor Giannelli
(11/18/2009) - Law professor Paul Giannelli was quoted in an Associated Press article published Nov. 18 in the Dayton Daily News, entitled "Evidence search resumes at Cleveland bodies house."

Giannelli was cited as stating that police often will seek a new warrant to reflect the scope of an expanded search. "It's certainly better to do that. They obviously have probable cause for a more extensive search," Giannelli said.

Read the article here as it was published in the Dayton Daily News.

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Professors Mehlman and Nance co-author open editorial about medical malpractice reform in Plain Dealer
(11/16/2009) - Law-Medicine Center Director Maxwell Mehlman and Dale Nance, John Homer Kapp Professor, wrote an op-ed in the Nov. 15 issue of the Plain Dealer. The editorial, "Medical malpractice reform can be unhealthy," argued the medical malpractice system should not be dismantled in favor of "health care courts."

Read the editorial here.

The op-ed by Professors Mehlman and Nance was accompanied by one from the Ohio State Medical Association that states that a report by the Congressional Budget Office found that malpractice reform could save $41 billion over the next 10 years.

It is important to note that both of the studies relied on by the CBO questioned whether any savings would be outweighed by adverse effects on patient health due a reduction in the deterrent effect of the tort system.

The most recent study of the two, in fact, found that "malpractice liability leads to modest reductions in patient mortality; the value of [which] more than likely exceeds the cost impacts of malpractice liability." In short, the net effect of adopting the approach of the Ohio State Medical Association would be to cause more patient deaths through malpractice.

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Plain Dealer article about Sowell's arrest and release in 2008 quotes Professor Katz
(11/13/2009) - Lewis Katz, professor and Director of the LLM program, was quoted in a Nov. 13 Plain Dealer article entitled "Sowell's arrest, release in 2008 leaves lingering questions about handling of case."

Katz was cited as saying that he agreed that in the September case, there was enough evidence to search alleged mass murder Anthony Sowell's home. "Without a question there was probable cause for issuance of a search warrant. Any judge would have issued it," Katz said. "I would have thought that with prior complaints and with a record like this guy had. . . . that they would have acted sooner rather than later."

Read the article here.

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Professor Nard presents lecture at Princeton University on patent law from an interest group's perspective
(11/11/2009) - Professor Craig Nard delivered a public lecture at Princeton University on Nov. 11 as part of the Bouton Law Lecture Series. The lecture, co-sponsored by the James Madison Program in American Ideals & Institutions and the Program in Law & Public Affairs, was entitled An Interest Group Perspective on the Development of Patent Law.

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Professor Groetzinger comments on effect of InkStop's bankruptcy on employees in Plain Dealer article
(11/10/2009) - Law professor Jon Groetzinger was quoted in a Plain Dealer article published Nov. 10 entitled "InkStop files for Chapter 7 bankruptcy." Groetzinger said the fact that InkStop chose to liquidate rather than try to reorganize and reopen is bleak news for employees.

"If the corporate entity has no money, then no payments are going to be made to anybody," said Groetzinger.

Read the article here.

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Canadian weekly magazine quotes Professor Scharf in story about Demjanjuk’s war crimes trial in Munich
(11/10/2009) - Michael Scharf, Director of the Frederick K. Cox International Law Center, was quoted in an article published online on Nov. 10 by Canadian weekly magazine Maclean's, entitled "The last great Nazi trial."

“Germany has really changed,” Scharf is quoted. “It has a new interest in prosecuting war criminals—not just from the Nazi era but also Rwandans and Cambodians and Sierra Leoneans and Bosnians.”

Twenty-five years passed before the tide turned—and what followed was messy. “This is one of the most bizarre cases in legal history,” said Scharf. “It’s a textbook case that I teach in my criminal law class of everything that can possibly go wrong in a trial.”

Read the article here.

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Plain Dealer article about frustration of families in the "Clyde cancer cluster" cites Professor Mehlman
(11/9/2009) - Director of the Law-Medicine Center Maxwell Mehlman was quoted in a Nov. 9 Plain Dealer article about an off-the-charts cancer spike in kids living in a Sandusky County community.

"This doesn't appear to be just some overly cautious interpretation of the law -- but a legitimate protection," Mehlman was quoted.

"The value of creating these cancer registries is so great that the only way they can be created is if people are assured of their privacy. So that really can't be violated."

Read the article here.

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Article about government's $45 billion stimulus for electronic health systems quotes Professor Hoffman
(11/6/2009) - Law and bioethics professor Sharona Hoffman was cited in a Huffington Post Investigative Fund article published on Nov. 5, entitled "Stimulus Fuels Gold Rush For Electronic Health Systems."

"We've got to make sure the products sold are high quality," said Hoffman, adding that she believes software defects could endanger patients and squander taxpayer dollars.

Read the article here.

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Crain's Business Cleveland article about international child-custody matters cites Professor Strassfeld
(11/2/2009) - Robert Strassfeld, law professor and Director of the Institute for Global Security Law and Policy, was quoted in an article published by Crain's Cleveland Business entitled "Lawyer opens new doors in Israel."

The article is about alumnus Andrew Zashin, who founded the Center for International Child Custody and Relocation - based in Israel, to serve as a clearinghouse for information and a resource for people involved in international custody disputes.

"At the core are issues of family. How we resolve family disputes is a critical part of normalcy in our lives,” said Strassfeld. “These kinds of issues will come up again and again with the global economy we have.”

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Professor Hoffman's article on provider liability listed on CDC Public Health Law News website
(11/1/2009) - Sharona Hoffman, professor of law and bioethics, and Co-Director of the Law-Medicine Center, had an article she co-authored with Andy Podgurski listed on the Centers for Disease Control and Prevention Public Health Law News website in October.

View the listing here. Read the article here.

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Professor Adler shares his views on constitutionality of health care overhaul in Washington Times article
(10/29/2009) - Jonathan Adler, law professor and Director of the Center for Business Law and Regulation, was quoted in an Oct. 28 Washington Times article entitled "Constitutionality of health overhaul questioned."

"In this case, the overall scheme would involve the regulation of 'commerce' as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate," said Adler.

Read the article here.

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Article about Dean Rawson remaining at law school through mid-2011 published in Plain Dealer
(10/27/2009) - Interim Dean Robert Rawson will have more running room to continue some projects, according to an article about him staying at the law school through mid-2011, which was published Oct. 26 in The Plain Dealer.

"I'm juggling some balls, but what I say to people is that at least they're not eggs," he said. "So I can bounce one occasionally without doing too much."

Read the article here.

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Professor Hoffman quoted in Washington Post story about electronic medical records not being a cure-all
(10/26/2009) - Sharona Hoffman, professor of law and bioethics, was quoted in an article entitled "Electronic medical records not a cure-all," published Oct. 25 in the Washington Post.

"Doctors who report problems can lose their jobs," Hoffman said. "Hospitals don't have any incentive to do so and may be in breach of contract if they do."

Read the article here.

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Associated Press report on trial of accused Serbian war criminal Karadzic quotes Professor Scharf
(10/26/2009) - Michael Scharf, law professor and Director of the Frederick K. Cox International Law Center, was quoted in an Oct. 26 Associated Press article entitled "Karadzic trial set to start without Karadzic."

"The Karadzic trial is really the trial that the Yugoslavia tribunal was designed for," said Scharf.

The article cited Scharf as also saying that evidence presented at the Milosevic genocide trial made it, "absolutely clear that Karadzic was a much greater monster and much more responsible for the atrocities than Milosevic ever was."

Read the article as it appeared in The Australian here.

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News Archive

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Professor Rossman’s article about Cleveland's historic Euclid Avenue published in bar journal
(10/24/2009) - Professor Matt Rossman’s article, “The Past, Present and Future of Euclid Avenue,” was published in the October issue of the Cleveland Metropolitan Bar Journal.

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Radio show features Professor Lipton's "Global Real Estate: Domain Names, Trademarks and Free Speech"
(10/23/2009) - Jacqueline Lipton, professor of law, discussed "Global Real Estate: Domain Names, Trademarks and Free Speech" on Stanford University's radio show Hearsay Culture, which aired on Oct. 14.

Listen to the show here.

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Huffington Post story about Obama administration's digital health stimulus quotes Professor Hoffman
(10/20/2009) - Law and bioethics professor Sharona Hoffman was quoted in a story published online on Oct. 15 by the Huffington Post Investigative Fund entitled "Fuzzy Math? Rising Costs in Government's Digital Health Stimulus."

Read the story here.

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University of North Dakota radio show quotes Professor Hoffman about the morality of universal health care
(10/12/2009) - Sharona Hoffman, professor of law and bioethics, was interviewed by the University of North Dakota on the Why? radio show about the morality (and legality) of universal health care, on Oct. 11.

Listen to the broadcast here.

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Professor Adler comments on Supreme Court Justice Sotomayor's 1st term in Washington Post article
(10/6/2009) - Jonathan Adler, law professor and Director of the Center for Business Law and Regulation, was quoted in an Oct. 5 Washington Post article entitled "Sotomayor's First Term."

Adler writes, "Justice Sonia Sotomayor's confirmation was an important milestone. Yet this term is more likely to be remembered for its cases than the change in personnel. This term has the potential to reveal more about the Roberts court and its likely doctrinal course than any we've seen thus far."

Read the article here.

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Professor Berg talks on WCPN's Sound of Ideas about people's risky behavior and health benefits
(10/6/2009) - Jessica Berg, professor of law and bioethics, spoke Sept. 30 on WCPN's Sound of Ideas about people's risky behavior and health benefits. Berg said she thinks it’s frustrating when people deliberately do things that are unhealthy and don’t take advantage of opportunities to improve their health - but she doesn’t think penalizing people financially is a good solution.

Listen to the program here.

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Kent's National Public Radio station quotes Professor Hoffman on electronic health records
(10/6/2009) - Sharona Hoffman, professor of law and bioethics and Co-Director of the Law Medicine Center, was quoted in an article entitled "Northeast Ohio in the vanguard in health information technology," published in Oct. 5 by WKSU.

The story states that Hoffman, who recently published a report detailing liability risks for health-care providers as well as patients, says no electronic record is completely secure from mishaps or security threats. And her report questions whether going digital would actually reduce costs.

Read the story here.

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Story about electronic medical records quotes Professor Hoffman
(10/1/2009) - Sharona Hoffman, professor of law and bioethics and Co-Director of the Law Medicine Center, was quoted in an article about electronic health records, published in Cataract Outsourcing on Sept. 18.

Hoffman said she believes rigorous certification and approval processes make it simpler for providers to find the right EMR.

"It is true that demanding certification or approval requirements may keep small entrepreneurs out of the market," Hoffman said.

"However, it is extremely important that only vendors who can produce safe EMR systems that will not compromise patient welfare be allowed to sell their products."

Read the article here.

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Professor Berg wins Mather Spotlight Award for Women’s Scholarship
(9/22/2009) - Professor Jessica Berg is the winner of the Mather Spotlight Award for Women’s Scholarship. This award is given to female faculty for exemplary research and scholarship. Professor Berg will be recognized at the Annual Women of Achievement Luncheon on Friday, Oct. 30 at 12:30 p.m. in the Ballroom at the Thwing Center.

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Article on collecting small-claims judgment quotes Professor Pollis
(9/21/2009) - Professor Andrew Pollis was quoted in a story published Sept. 20 in the Plain Dealer, entitled "Collecting a small-claims court judgment can involve several options."

Read the story here.

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European association accepts Professor Kostritsky's contracts paper
(9/21/2009) - Professor Juliet P. Kostritsky’s paper entitled The Means/Ends Dilemma in Contract Interpretation: A Response to Professors Kraus and Scott: How the Intractability of Express Language Affects Interpretive Authority and Legal Interventions in Contracts was accepted for presentation at the Annual Meeting of the European Law and Economics Association held in Rome, Italy on Sept. 17-19. Professor Kostritsky recently delivered her paper on Sept.18. She appeared on a panel with Professor Alan Schwartz of Yale University School of Law.

Read the paper here.

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Professors Entin, Lipton cited in story on students handling felony cases
(9/21/2009) - Professors Jonathan Entin and Judy Lipton were quoted in a news story about law students representing defendants in some felony cases. The article, entitled "Court makes case for interns," was published Sept. 20 in the News-Herald. 

"We've never had a client go into court and say a student didn't represent them effectively," said Lipton. "Clients are satisfied with their representation because our students spend a tremendous amount of time on their cases."

Read the full story here.

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Professor Scharf's Enemy of the State wins legal association award
(9/14/2009) - Professor Michael Scharf’s book, Enemy of the State has been awarded the 2009 “Book of the Year Award” by the International Association of Penal Law - American National Section.

Enemy of the State: The Trial and Execution of Saddam Hussein was co-authored by Michael Newton and was published by St. Martin's Press in 2008.

Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law.

In 2004-05, Scharf served as a member of the international team of experts that provided training to the judges of the Iraqi High Tribunal, in 2006 he led the first training session for the investigative judges and prosecutors of the newly established U.N. Cambodia Genocide Tribunal, and in November 2008 he served as Special Assistant to the Prosecutor of the Cambodia Tribunal.

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Professor Scharf and former Irish president interviewed on WCPN
(9/14/2009) - Michael Scharf, law professor and Director of the Frederick K. Cox International Law Center, appeared with former President of Ireland Mary Robinson on WCPN's “The Sound of Ideas” on Sept. 9.

Listen to the interview here.

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Professor Giannelli testifies before Senate Judiciary Committee
(9/9/2009) - Professor Paul Giannelli testified Sept. 9 before the Senate Committee on the Judiciary during a hearing on “Strengthening Forensic Science in the United States.”

Read more here.

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Professor Katz quoted in Plain Dealer story on D'Ambrosio retrial
(9/2/2009) - Lewis Katz, professor of law, was quoted in a Plain Dealer article published Aug. 31 entitled "Joe D'Ambrosio retrial in Tony Klann murder faces problems after death of star witness Eddie Espinoza."

Read the story here.

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Columbus Dispatch article on medical software cites Professor Hoffman
(8/31/2009) - Sharona Hoffman, professor of law and bioethics, was quoted in an Aug. 31 Columbus Dispatch article, "Software lets doctors share images."

The article suggests that new software would allow radiologists, for example, to share images, thus eliminating the need to repeat procedures, which in turn would save time and money. However, this would require government regulation of electronic records.

"Right now, these (systems) are not regulated when drugs and devices have to go through a whole appeal process," Hoffman said.

Read the article here.

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Professor Pollis named one of Cleveland's Best Appellate Lawyers
(8/28/2009) - The Plain Dealer featured aspecial insert in the Aug. 28 issue of Friday Magazine entitled "Cleveland's Best Lawyers." Professor Pollis was one of the four listed lawyers under the category of "Appellate Law."

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Professor Entin comments in article about upcoming county ballot
(8/28/2009) - Professor Jonathan Entin was quoted in a Plain Dealer article, "Competing governance proposals in Cuyahoga County's ballot could produce bizarre legal situation."

Read the article here.

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Associated Press quotes professor Scharf about Italian kidnapping trial
(8/28/2009) - An Aug. 27 story by the Associated Press, "US will pay for lawyer in Italian kidnapping trial," quoted law professor and Director of the Frederick K. Cox International Law Center, Michael Scharf.

Read the article here.

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Bloomberg story on CIA interrogations cites Professor Scharf
(8/26/2009) - Michael Scharf, law professor and Director of the Frederick K. Cox International Law Center, was cited in a Bloomberg news story published Aug. 26, entitled "CIA Interrogation Review May Lead Prosecutor to Bush Officials."

Read the article here.

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Professor Giannelli quoted in online CNN story on forensic science
(8/21/2009) - Professor Paul Giannelli was quoted in an Aug. 20 CNN article entitled, "Man blames science for nearly 20 years he spent in prison."

“The issue is, we need more science in forensic science,” said Giannelli.

Read the article here.

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Professor Mehlman quoted in Plain Dealer article on health reform
(8/20/2009) - Maxwell Mehlman, Arthur E. Petersilge Professor of Law and Director of the Law-Medicine Center, was quoted in an Aug. 18 Plain Dealer article entitled "Prescription drug costs will be lower for many under health reform plans."

"The devil's in the details," said Mehlman, "And we haven't seen the details yet."

Read the article here.

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Professor Robertson quoted about law firm's boost from Madoff case
(8/17/2009) - Cassandra Robertson, assistant professor of law, was quoted in an Aug. 17 Crain's Cleveland Business article, entitled "Baker sees boost from Madoff: After law firm's New York office hired away Ponzi scheme trustee, awareness heightened." 

“Financial fraud is something that doesn't go away,” said Robertson. “Any time a firm does good work in an area, it's going to attract attention. It's very helpful in solidifying their reputation, in client development.” Robertson also said the consistent fees are likely a boon in a difficult economy.

Read the article here.

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Chicago Tribune quotes Professor Adler on Sotomayor confirmation
(8/7/2009) - Jonathan Adler, law professor and Director of the Center for Business Law and Regulation, was quoted in an August 7 Chicago Tribune article about the conformation of Supreme Court Justice Sonia Sotomayor.

Insofar as Sotomayor and her defenders backed away from her prior statements and speeches, disavowed the president's embrace of 'empathy' in judging and refused to articulate or defend a 'liberal' or 'living Constitution' approach to constitutional decision-making, the battle over the courts would seem to have shifted to more conservative terrain," Adler said.

Read the story here.

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Professor Scharf's work cited by UN’s Cambodia Genocide Tribunal
(7/31/2009) - Professor Michael Scharf’s article, "Tainted Provence: When, if Ever, Should Torture Evidence Be Admissible," 65 Washington and Lee Law Review 129-172 (2008) was cited as authority by the UN’s Cambodia Genocide Tribunal in its July 28 decision to dismiss the defense motion to exclude evidence obtained during Khmer Rouge interrogations at the infamous S-21 detention center.

The evidence may be significant to proving command responsibility and joint criminal enterprise liability of the half-dozen Khmer Rouge leaders being tried by the international tribunal. During a sabbatical in 2008, Scharf served as Special Assistant to the Prosecutor of the Tribunal.

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New York Times story about water rights mentions Professor Adler
(7/24/2009) - Law professor Jonathan Adler was cited in a New York Times article published July 21 entitled "Obama Admin Declines to Appeal Key Water-Rights Case."

"I assumed they'd file and then I thought the real question would be whether the Supreme Court decided to grant review," Adler said. "But the way the specific question was framed to the Federal Circuit, it assumed some things that my guess is the government may be able to challenge in the lower courts."

Read the full article here.

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Multiple media outlets cite Professor Adler on Sotomayor hearings
(7/17/2009) - Jonathan Adler, law professor and Director of the Center for Business Law and Regulation, authored an article about the Sotomayor hearings entitled "Expert Analysis: First Day Reveals Little," which was published July 14, in the Washington Post. Adler also was cited by other media outlets about the hearings.

Read the Washington Post article here.

Other mentions about the Sotomayor hearings:

CNBC
Second Washington Post article
PBS Newshour
KPCC Airtalk

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Professor Scharf updates Demjanjuk case on local radio show
(7/16/2009) - Michael Scharf, law professor and Director of the Frederick K. Cox International Law Center, was interviewed July 17 on WDOK's "Trapper Jack in the Morning" show about the John Demjanjuk trial.

Listen to the interview here.

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Professor Adler quoted in Boston Globe about legislation language
(7/15/2009) - Jonathan Adler, law professor, was quoted in a July 12 article in The Boston Globe entitled "Lawmakers, read the bills before you vote."

The article cited Adler's comments in National Review Online, "When Waxman-Markey finally hit the floor, there was no actual bill. Not one single copy of the full legislation that would, hours later, be subject to a final vote was available to members of the House. The text made available to some members of Congress still had ‘placeholders’ - blank provisions to be filled in by subsequent language."

Read the full story here.

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Online sports publication cites Professor Katz in shooting case
(7/15/2009) - Lewis Katz, professor of law, was quoted in "Man pleads not guilty after paralyzed victim dies," published in The Spread, about the death of a former NFL player from a shooting decades ago.

Read the full article here.

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Professor Entin's op-ed on census director published in Plain Dealer
(7/13/2009) - Jonathan Entin, professor of law and political science, wrote an editorial entitled "Delay in appointing census director could cost Ohioans in the long run," which was published July 12 in The Plain Dealer.

"Ohio in particular needs to have as accurate a census as possible next year to ensure the representation to which our state is entitled and to make sure that we don't lose out on our share of federal money," wrote Entin.

Read the full article here.

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Cleveland Magazine story about Cuyahoga River cites Professor Adler
(7/7/2009) - An article entitled "Our Fire Inside," published in the July issue of Cleveland Magazine, quoted Professor Jonathan Adler, Professor of Law and Director of the Center for Business Law and Regulation.

"Our river happened to catch on fire at precisely the wrong time. The nation was yearning for symbols and examples of environmental decline and the need for progress, and that just happened to be the time when we had a river fire. The real story of the river fire is a city that learned over time to appreciate the river as something more than a place to deposit waste," said Adler.

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Professor Sharpe is NBA Grievance Arbitrator, mentioned on ESPN.com
(7/2/2009) - Calvin Sharpe, law professor and Director of the Center for the Interdisciplinary Study of Conflict and Dispute Resolution, is the National Basketball Association's Grievance Arbitrator and was mentioned in a June 30 article on ESPN.com entitled "Dead money and cap ballast."

Read the article here.

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Professor Adler quoted in national news about Ricci v. DeStefano ruling
(7/1/2009) - Jonathan Adler, Professor of Law and Director of the Center for Business Law and Regulation, has been quoted by many media outlets including the Associated Press, The Chicago Tribune, The L.A. Times and NewsHour with Jim Lehrer about the U.S. Supreme Court ruling in Ricci v. DeStefano and the implications for Supreme Court nominee Sonya Sotomayor.

To read more:
Philadelphia Inquirer article
Los Angeles Times article
Chicago Tribune article
NewsHour with Jim Lehrer

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Professor Scharf speaks to international experts about JCE
(6/30/2009) - School of Law Professor Michael Scharf delivered the “Grotian Lecture” at the Asser Institute in The Hague on June 23, to an audience of 150 international criminal law experts. His speech, titled “To JCE or Not JCE,” focused on the debate about using Joint Criminal Enterprise Liability that is presently raging among the several international tribunals. A summary of his remarks can be read here.

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Professor Entin comments on Supreme Court nominee Sotomayor
(5/29/2009) - Case Western Reserve Law Professor Jonathan Entin says Sonia Sotomayor’s credentials defy the description of “radical”. For one thing, she was first appointed to the federal bench by a republican - George H. W. Bush. Also, she was a prosecutor for six years, and she was a corporate lawyer - both unlikely positions for a radical leftist.

“Because these claim have been made so indiscriminately, it’s really hard to take those criticisms that Judge Sotomayor is some sort of a wild-eyed radical - it’s very hard to take them seriously,” Entin says.

“The people who are making these claims are, many of them, people who would make the same claim about anyone president Obama appointed.”

Entin says he doesn’t think enough Republican senators opposed to the nomination to support a filibuster. He believes the debate could take awhile, but that Sotomayor will be confirmed.

More of the interview is available here.

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Professor Adler discusses Obama nominee on CNN's Lou Dobbs Tonight
(5/28/2009) - Jonathan Adler, professor of law and Director of the Center for Business Law and Regulation, appeared on CNN on May 26 to discuss President Obama's nomination of Sonia Sotomayor for the Supreme Court.

Watch the video here.

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Professor Hoffman quoted in story on electronic medical records security
(5/27/2009) - Sharona Hoffman, professor of law and bioethics and co-director of the Law-Medicine Center, was cited in an article, published May 22 in Columbus Business First, entitled "Move to digital health records carries privacy, security risks."

In the article, Professor Hoffman said a lot of people claim compliance is fairly low and enforcement has not been very extensive.

“You have to have a lot of technical knowledge to really implement all the steps that are required by that rule,” she said. “I would say we have a long way to go before we feel comfortable about the security of these systems.”

Read the article here.

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Vogue article on female Supreme Court nominees cites Professor Entin
(5/27/2009) - Professor Jonathan Entin was cited in an online article for Vogue, entitled "The Queens in Obama's Court."

As for Sotomayor’s general disposition, says Jonathan Entin, a law professor at Case Western Reserve University who clerked for Justice Ginsburg, “I’m reluctant to make too much of what people say about strong women. Most judges are not shrinking violets. Most lawyers are not shrinking violets. Very few judges become judges because someone comes along and notices them. They do something to make themselves noticed.”

Of the three possible nominees, she would be the safest choice for Obama, Entin believes, because she’s highly regarded even by people who don’t agree with her. “They’re not going to say she’s superficial or a hard-core ideologue, or some sort of wild-eyed judicial activist. Those are simply not plausible charges.”

Read the article here.

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Professor interviewed by BBC The World about Osama Bin Laden
(10/22/2008) -

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St. Martins Press to publish new Saddam Hussein book by Professor Michael Scharf
(1/2/2008) - Professor Michael Scharf has signed a contract with St. Martins Press, one of the world's leading publishing houses, to publish his new book, "Enemy of the State," in the fall of 2008.

The book, which was co-written by Vanderbilt Law Professor Michael Newton, recounts the story behind the trial of Saddam Hussein and the effort to bring the rule of law to post-invasion Iraq. Scharf and Newton helped draft the Iraqi High Tribunal Statute and trained the judges who presided over the Saddam trial.

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Professor Sharona Hoffman appointed to Institute of Medicine research committee
(12/28/2007) - Sharona Hoffman, Professor of Law and Bioethics at Case Western Reserve University, has been appointed by the Institute of Medicine of the National Academies to the Committee on Research Priorities in Emergency Preparedness and Response for the Public Health Systems.

As part of the 16-member ad hoc committee, which was formed in response to a request from the Centers for Disease Control and Prevention’s (CDC) Coordinating Office for Terrorism Preparedness and Emergency Response, Professor Hoffman will be responsible for helping identify short-term (3-5 year) research priorities to improve public health systems’ emergency preparedness. The research is to be conducted primarily by schools of public health.

The committee met in Washington D.C. December 18-21. Its findings will be used by the Coordinating Office for Terrorism Preparedness and Emergency Response to develop research funding announcements and requests for applications that will be issued and filled during the 2008 fiscal year.

Professor Hoffman, who is also Senior Associate Dean for Academic Affairs and Co-Director of the Law-Medicine Center at Case Western Reserve University School of Law, has taught civil procedure, employment discrimination, and various health law courses. She has published articles on employment discrimination, health insurance, disability law, biomedical research, the concept of race and its use in law and medicine, and health information technology. Professor Hoffman is a frequent speaker on health law and civil rights issues and has been widely quoted in the media, including the L.A. Times, USA Today, and the New York Times.

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Professor Adler among most cited professors in environmental law
(12/4/2007) - Professor Jonathan H. Adler is listed among the most cited law professors in environmental law in a new study conducted by University of Texas law professor Brian Leiter. Professor Leiter’s study identifies the 10 or 20 most cited law professors by specialty for the period 2000-2007, along with runners up. Professor Adler is listed as one of the runners up to the 10 most cited law professors in environmental law.

Professor Adler is the only professor of the most cited in environmental law under the age of 40.

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Professor Adler debates con­sti­tu­tional right to unapproved drugs
(11/13/2007) - In May 2006, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that terminally ill patients posses a fundamental right to access experimental drugs that have not been fully approved by the Food and Drug Administration. However, in August of this year, a divided appeals court sitting en banc reversed that decision in Abigail Alliance v. von Eschenbach, prompting a petition for certiorari to the Supreme Court.

Last week, Professor Jonathan H. Adler participated in an on-line debate on Abigail Alliance and whether the terminally ill have a fundamental constitutional right to access potentially life saving drugs as part of the Federalist Society’s “Originally Speaking” debate series. Other participants included Roger Pilon of the Cato Institute, Ed Whelan of the Ethics and Public Policy Center, and Curt Levey of the Committee for Justice.

Read the debate.

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Law professors say "health courts" offer big financial burdens and loss of patient rights
(10/25/2007) -

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Professor Michael Scharf receives 2007 Article of the Year Award
(10/19/2007) - The International Association of Penal Law announced that Professor Michael Scharf's article, "From the eXile Files: An Essay on Trading Justice for Peace," published in 63 Washington and Lee Law Review 339-376 (2006), was awarded the International Association of Penal Law (American National Section)'s 2007 Article of the Year Award for "scholarly contribution to the field."

This is only the latest honor for Professor Scharf, who's work in the field of international law has won global acclaim. In 2005, the Public International Law and Policy Group and its co-founders, Professor Scharf and Paul Williams, were nominated by eight governments and an international criminal tribunal for the Nobel Peace Prize for "significantly contributing to the promotion of peace throughout the globe by providing crucial pro bono legal assistance to states and non-state entities involved in peace negotiation and in bringing war criminals to justice."

Founded in 1924, the International Association of Penal Law is a professional organization of 3,000 academicians and practitioners from 130 countries in the field of international and comparative criminal law and procedure. Read more information here.

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President Barbara R. Snyder elected to top legal institute
(10/12/2007) -

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Fourth edition of Profes­sor Paul Giannelli's influential book Scientific Evidence released
(9/24/2007) - Lexis Publishing Company recently released the textbook, co-authored with Edward Imwinkelried of University of California at Davis. Courts and commentators have cited the book hundreds of times, including the U.S. Supreme Court in United States v. Shefflin, 523 U.S. 303 (1998) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Read more about Professor Giannelli.

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Law-Medicine Center Director Maxwell Mehlman and workshop colleagues develop science policy on human enhancement
(8/24/2007) - Sponsored by the American Association for the Advancement of Science (AAAS),the Program on Scientific Freedom, Responsibility and Lawof which Professor Maxwell Mehlman was a part produced a report entitled "Good, Better, Best: The Human Quest for Enhancement." The AAAS invited Professor Mehlman, director of Law-Medicine Center, to participate in a June 2006 science policy workshop on human enhancement. AAAS has now posted its report on the workshop.

The workshop includedscientists, ethicists, industry representatives, legal scholars, and policy analysts. "The project was intended to generate insights, perspective, and to contribute to more informed public deliberations on the technical, ethical, and public policy issues surrounding human enhancement.Some of the issues highlighted at the AAAS workshop related to individual choice, allocation of resources, fairness, justice, dignity, and the quality of life, all of which will undoubtedly shape professional and public discourse on human enhancement and options for public policy. One specific outcome of the project was a list of recommendations from meeting participants of next steps AAAS might consider in its role as an association committed to "advancing science, serving society.” The Summary Report of the meeting, entitled "Good, Better, Best: The Human Quest for Enhancement," concludes with several of those recommendations, and we plan to continue our involvement in these important issues."

Read more and access the report .

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Voice of America radio news profiles the work of War Crimes Crimes Research Office
(7/26/2007) - On July 12, 2007, Voice of America aired a story about the work of the Case Western Reserve University School of Law professors and students working with the Cox Center War Crimes Research Office. Led by Professor Michael Scharf, the War Crimes Research Office is assisting with the prosecution of Charles Taylor and other cases before the Special Court for Sierra Leone in Freetown, the International Criminal Tribunal for Rwanda in Arusha, the International Criminal Court in The Hague, and the new Cambodia Genocide Tribunal in Phnom Penh.

See the news profile here.

Listen to the Voice of America audio archive.

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Professor Jonathan Adler discusses 06-07 Supreme Court term on PBS Newshour
(7/3/2007) - On June 29, Professor Adler joined another constitutional law expert, Professor Goodwin Liu from the University of California, Berkeley, Boalt Hall Law School, to discuss the Supreme Court term that just ended under Chief Justice John Roberts.

Video and a transcript from the show are available through the PBS website.

Read Professor Adler's July 5, 2007 article in the National Review Online: "How Conservative Is this Court?"

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Law professor's scholarship cited by international tribunal
(6/28/2007) -

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Professor Louise McKinney receives second Fulbright Award
(6/15/2007) - Louise McKinney, professor of law at Case Western Reserve University School of Law, was recently awarded a Fulbright Scholar grant. As a Fulbright Scholar, Professor McKinney will teach in the clinical program at the University of Botswana's Law Department in Gaborone, Botswana, in southern Africa. The 10-month award is for the 2007-2008 academic year and will begin in August 2007.

Professor McKinney is one of approximately 800 U.S. faculty and professionals who will travel abroad through the Fulbright Scholar Program. Established in 1946 under legislation introduced by the late Senator J. William Fulbright of Arkansas, the Program's purpose is to build mutual understanding between the people of the United States and the world.

In Botswana, Professor McKinney will be working with the law faculty to expand and enhance their university's clinical legal education program. In addition, she hopes to be able to work with leaders in the country to develop a sustainable program for providing more free legal services for people who cannot afford to pay for them.

This is Professor McKinney's second Fulbright award. Her first was a grant for teaching 11 months in Nairobi, Kenya, in 1998-1999. There, she worked with the law faculty at the University of Nairobi, inserting clinical teaching and experiences into the curriculum and revising the curriculum to include a Legal Aid Clinic for the first time. Additionally, this will be Professor McKinney's second time living and working in Botswana. In 1988-1989, she worked with the clinical legal education program as it was getting started, under a USAID grant.

Professor McKinney teaches in the Milton A. Kramer Law Clinic Center at the School of Law, including an experiential Health Law Clinic. Other courses she teaches include Poverty, Social Inequality, and the Law and Focused Problem Solving in the law school's CaseArc skills program. Before beginning full-time legal teaching, Professor McKinney was an attorney for ten years with the Legal Aid Society of Cleveland, most of them in its Law Reform unit representing clients in issues related to health and disability law. She joined the Case law faculty in 1989.

The Fulbright Program, the United State's flagship international educational exchange program, is sponsored by the United States Department of State, Bureau of Educational and Cultural Affairs. Since its inception, the Fulbright Program has exchanged approximately 273,500 people – 102,900 Americans who have studied, taught or researched abroad and 170,600 students, scholars and teachers from other countries who have engaged in similar activities in the United States. The Program operates in 150 countries worldwide.

Recipients of Fulbright awards are selected on the basis of academic achievement, as well as demonstrated leadership potential in their fields. Among the thousands of prominent Fulbright alumni are: Craig Barrett, Chairman of the Board of Intel Corporation; Mohamed Benaissa, Minister of Foreign Affairs, Morocco, Raoul Cantero, Justice, Florida Supreme Court; Luis Ernesto Derbez, Minister of Foreign Affairs, Mexico; Renee Fleming, soprano; Gish Jen, Writer; Dolores Kendrick, Poet Laureate of the District of Columbia; Daniel Libeskind, Architect; Aneesh Raman, CNN Baghdad correspondent; Robert Shaye, Co-Chairman and Co-CEO, New Line Cinema; Ruth Simmons, President, Brown University; Javier Solana, Foreign Policy Chief, European Union; and Muhammed Yunus, Managing Director and Founder of the Grameen Bank.

Professor McKinney is the author of the following article: "Introduction: Are the Walls Tumbling Down? Hardly. Are the Sands Shifting? Surely," 12 Health Matrix: Journal of Law-Medicine 1 (Winter 2002).

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Award honors Professor Jacqueline Lipton among women scholars and researchers
(5/24/2007) - The Mather Spotlight Series Prize for Women's Scholarship honors women faculty for their excellence in research and scholarship. An awards reception this spring honored eight women from the university community. This year's recipients as selected by their school or college are:

• Diana Bilimoria, Weatherhead School of Management
• Eva Kahana, College of Arts and Sciences
• Lenore A. Kola, Mandel School of Applied Social Sciences
• Jacqueline Lipton, School of Law
• Diana Lynn Morris, Frances Payne Bolton School of Nursing
• Meral Ozsoyoglu, Case School of Engineering
• Marsha A. Pyle, School of Dental Medicine
• Susan Redline, School of Medicine

An endowment from the Flora Stone Mather Alumnae Association supports this annual program through the Flora Stone Mather Center for Women. The endowment, established in 1989, awarded the first Spotlight Series Prize in 2005. Each winner received a certificate and modest stipend as a way to honor their accomplishments in their respective fields.

Professor Lipton is the co-director of the Center for Law Technology and the Arts, and associate director of the Frederick K. Cox International Law Center.

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On global warming: Professor Jonathan Adler testifies before U.S. Senate Committee on Environment and Public Works
(5/23/2007) - Professor Adler was among witnesses that testified before a full committee hearing entitled "Examining the Case for the California Waiver" on May 22. View press release.

The hearing explored California's request for a federal waiver from the Environmental Protection Agency (EPA) so that it can regulate greenhouse gas emissions on new vehicles. The EPA has resisted making a decision on the waiver ever since the state requested the waiver in December 2005.

The hearing witnesses were the Honorable Edmund G. Brown Jr., Attorney General, State of California; the Honorable Alexander B. Grannis, Commissioner, New York State Department of Environmental Conservation; and Professor Jonathan H. Adler, Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

Read Professor Adler's commentary about the hearing on the blog The Volokh Conspiracy.

Read Professor Adler's commentary (PDF)

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Has the Supreme Court Seen Green? The Rami­fi­ca­tions of Mass. v. EPA
(5/10/2007) - Professor Jonathan Adler discusses the Supreme Court’s ground­breaking decision during a con­fer­ence at the American Enterprise Institute (AEI) that was broadcast live on C-Span 3. The conference took place Monday, May 7, 2007 at AEI's headquarters in Wash­ing­ton, D.C. Professor Adler was part of a panel that included Jeffrey Bossert Clark, Kirkland & Ellis, LLP and George Mason University Law School, Lisa Heinzerling, Georgetown University Law Center, Mark Moller, Cato Institute, David Schoenbrod, New York Law School and Cato Institute, and Joel Schwartz, AEI.

More information about the event, including audio and video archives, is available here.

Jonathan H. Adler is professor of law and director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

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"Rough Justice: Behind the Scenes with the American Advisers to the Iraq v. Saddam Hussein Court"
(5/7/2007) - Professor Michael Scharf, director of the Frederick K. Cox International Law Center, is extensively quoted in the definitive investigative report on the Saddam Hussein trial, "Rough Justice: Behind the Scenes with the American Advisers to the Iraq v. Saddam Hussein Court" by John Gibeaut. Professor Scharf served as a member of the international team of experts that trained the judges and prosecutors of the Iraqi Special Tribunal.

The article appears in the April 2007 issue of the ABA Journal and is available online.

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Prof. Juliet P. Kostritsky to present paper at annual meeting of the American Law and Economics Association
(4/27/2007) - Prof. Juliet P. Kostritsky's paper "Plain Meaning vs. Broad Interpretation: How the Risk of Opportunism Defeats a Unitary Default Rule for Interpretation" has been selected for presentation at the annual meeting of the American Law and Economics Association that will be held Saturday and Sunday, May 5-6, 2007 at the Harvard Law School. She will speak on a panel of Contracts and Commercial Law Scholars on Sunday, May 6, 2007 at 9:00 a.m.

View the complete program of ALEA in PDF format.

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Professor presents at coun­ter­ter­rorism sem­i­nar organ­ized by Neth­er­lands Min­istry of Foreign Affairs
(4/17/2007) - Professor Gregory McNeal, assistant director of the Institute for Global Security Law and Policy was among a handful of presenters at an expert panel sponsored by the Netherlands Ministry of Foreign Affairs and The Grotius Centre for International Legal Studies in the Netherlands. The international panel included one American other than Professor McNeal and dealt with critical issues related to counterterrorism strategies, human rights, and international law. The results of the session will be included in a paper to be used by the Netherlands Ministry of Foreign Affairs in decisions about their counterterrorism policies.

Professor McNeal supervises the Institute for Global Security Law a Policy’s innovative comparative counterterrorism law program funded by a U.S. Department of Justice grant. The program is designed to enhance cooperation between officials in the Department of Justice Counterterrorism Section and their European counterparts. Professor McNeal also co-teaches the law school’s Counterterrorism Prosecution course in which students provide legal research support to the Department of Defense Office of Military Commissions regarding issues related to the Guantanamo detainees.

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Professor Michael Scharf to co-chair 2007 Joint Hague Conference
(4/13/2007) - Case Western Reserve University School of Law Professor Michael Scharf, director of the Frederick K. Cox International Law Center, was selected to co-chair the American Society of International Law-Dutch Society of International Law-TMC Asser Institute's "2007 Joint Hague Conference. This prestigious international conference, titled "Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference," will be held June 28-30 in The Hague.
Read more information

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Cleveland Bar Asso­ci­a­tion event on rep­re­sen­ting LGBT families fea­tures keynote address by Dean Simson
(4/1/2007) - "Representing LGBT Families in a Changing Environment" is presented by the Diversity Action Committee of the Cleveland Bar Association, and coordinated by Case Western Reserve University School of Law's Lambda Law Students Association. It will take place on April 10, 2007 from noon to 4:30 p.m. at the Cleveland Bar Association, 1301 East 9th Street, Galleria, Second Level, Cleveland, OH 44114. 3.5 hours of CLE are available.

Gary J. Simson, dean of the law school, will deliver the keynote address, "Beyond Interstate Recognition in the Same-Sex Marriage Debate" at 12:30 p.m. Joan M. Burda, author of Estate Planning for Same-Sex Couples and director of the Cleveland Homeless Legal Assistance Program will talk about "Representing the LGBT Family." A panel discussion featuring representatives from law firms, the ACLU and the Legal Aid Society will conclude the program.

For more details, including registration information and an agenda

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Law professor receives Ohio Magazine's "Excellence in Education Award"
(3/28/2007) -

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Law professors create groundbreaking international law blog
(3/23/2007) - Case Western Reserve University School of Law Professors Michael Scharf, Amos Guiora and Gregory McNeal among founders of the AIDP Blog, the official blog of the American National Section of the AIDP (L’Association Internationale de Droit Penal / The International Association of Penal Law). The AIDP Blog will provide a forum for expert debate and thought-provoking commentary on contemporary issues of comparative criminal justice, international criminal law, international humanitarian law, international criminal tribunals, human rights and counterterrorism law & policy.

Founded in Paris in 1924, the AIDP is the oldest association of specialists in penal law in the world and one of the oldest scientific associations. Since 1950, the Association has been a U.N. accredited NGO. It is also a member of the United Nations alliance of NGOs on Crime Prevention and Criminal Justice in New York and Vienna, which have frequently been chaired by an Association’s representative. It also cooperates with the United Nations Secretariat, ECOSOC, the Crime Prevention and Criminal Justice Division (as it was called until 1998), the Division of Narcotic Drugs, the Center for Human Rights and other specialized United Nations institutes, such as UNSDRI (Rome), HEUNI (Helsinki), UNAFEI (Tokyo), ILANUD (San Jose), ISPAC (Milan), ASTC (Riyadh), UNAFRI (Kampala), ISISC (Siracusa). The American National Section is a subsidiary of the 3,000-member international Association. The Association, by its manifold activities, meetings, and publications, has played a significant role in the promulgation of the Torture Convention, the Rome Statute of the International Criminal Court, and other important international instruments.

Among the experts bloggers are the former U.S. Ambassador at Large for War Crimes Issues, a former Under Secretary General of the United Nations and Chief Prosecutor for the Special Court for Sierra Leone, a Nobel Peace Prize nominee, former U.S Department of State legal advisors, participants from the negotiation of the ICC treaty, defense attorneys from international tribunals, and former military officers with operational and advisory experience in counterterrorism and post-conflict states. All of the experts are accomplished academics with multiple books and scholarly articles, many cited by the international criminal tribunals, the Supreme Court of the United States, the Supreme Court of Israel, and other high Courts. The experts appear frequently in the media, and you can follow their appearances as they occur under the Expert Appearances section.

The bloggers of the AIDP Blog:

Michael Scharf, Deputy Secretary-General of the AIDP and President of the AIDP American National Section

Mark Drumbl, Vice President of the AIDP American National Section

Christopher Blakesley, Vice President of the AIDP American National Section

Michael Kelly, Director of Studies, AIDP American National Section

Gregory McNeal, Director of Studies, AIDP American National Section

Dorean Koenig, Secretary, AIDP American National Section

David Crane, AIDP American National Section Executive Council member

Amos Guiora, AIDP American National Section Executive Council member

Linda Malone, AIDP American National Section Executive Council member

Michael Newton, AIDP American National Section Executive Council member

Jordan Paust, AIDP American National Section Executive Council member

David Scheffer, AIDP American National Section Executive Council member

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Professor's review of The Republican War on Science remains one of 10 most downloaded articles on research website
(3/6/2007) - "Don't Politicize Science (Unless You're on My Side)," Professor Jonathan Adler's review of C. Mooney's book, was posted Jan. 25, 2007 on the Social Science Research Network website, and has since been on the "Top Ten" download list from all SSRN journals.

Professor Adler is director of the Center for Business Law and Regulation.

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Professor Paul Giannelli publishes new edition of his casebook on evidence
(2/26/2007) -

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Three law professors invited to participate in reexamination of the rules of armed conflict
(2/5/2007) - Participation by Professors Michael Scharf, Amos Guiora and Gregory McNeal will contribute to the work of a team of international experts recommending updates to the rules of armed conflict to reflect the challenges of terrorism as the 100 year anniversary of The Hague Rules of 1907 approaches.

The goals of the research are to draft a set of updates to the rules of armed conflict, to suggest policies that can inform successful strategies and tactics for combating terrorism, and to consider the human rights dimensions of the purposeful use of non-combatants as a shield and civilian areas as safe sanctuary. The recommended updates will serve as a basis for nations to bring about needed changes in the laws of war.

Recent conflicts underscore the continuing shortcomings of international law and policy in responding to asymmetric warfare mounted by non-state terrorist groups in the 21st century. Neither The Hague Rules, the customary law of war, nor the post-1949 law of armed conflict and accompanying international humanitarian law, account for non-state groups waging prolonged campaigns of terrorism - and, in some cases, more conventional military attacks - that leave the defending state with little choice but to respond in ways that inflict heavy civilian casualties.

As the 100 year anniversary of The Hague Rules of 1907 approaches, three Case Western Reserve University School of Law professors have been asked to participate in a fundamental re-examination of the policies and laws for the conduct of armed conflict. The invited professors are Michael Scharf, director of the Frederick K. Cox International Law Center, Amos Guiora, director of the Institute for Global Security Law and Policy, and Gregory McNeal, assistant director of the Institute for Global Security Law and Policy. The program is sponsored by Syracuse University’s Institute for National Security and Counter Terrorism, and The Institute for Counter Terrorism (ICT) at the Interdisciplinary Center (IDC) in Herzliya, Israel.

The invitation recognizes the strength of the global legal curriculum at the School of Law and the expertise of the professors who will be asked to serve on a team of international experts reviewing and discussing case studies and lessons learned developed by teams of military officers and military lawyers from Israel and the United States. Following that review, the professors will participate in a working session in Israel this summer to develop proposals for reform or new protocols to the laws of war. he effort will culminate in a conference in Washington D.C., where the Case team will participate in paper presentations and will engage in discussion with other experts regarding the future of the rules and policies for armed conflict. Following work will include the preparation of a book and an outreach effort to engage nations and other key bodies about the work of the group and their recommendations.

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Oxford University Press will publish Prof. Amos Guiora's book on the treatment of detainees
(1/26/2007) - The book, Learn from History: Lessons for Extending Constitutional Protections to an Unprotected Class - The Limits of Coercive Inter­rogation, will contribute to the ongoing debate about establishing necessary standards and procedures for detainees in today's "war on terrorism."

In the aftermath of 9/11 most academic discourse pertaining to detainee treatment has focused on the permissibility of torture. Professor Guiora's book will analyze the applicability of imposing certain constitutionally based criminal law rights onto detainees, specifically looking at the interrogation context through the lens of threats and cumulative mistreatment. Based on analysis and application of the hybrid paradigm, the focus of this book will be on 1) what constitutional rights should be extended to detainee interrogations, and 2) how such rights can be granted based in part on an examination of the lessons of history in determining what rights should be extended to individuals currently unprotected.

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Institute for Global Security Law & Policy Director Amos Guiora quoted in The Plain Dealer Sunday
(1/17/2007) -

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Should the Supreme Court force the EPA to restrict greenhouse gases? According to professor, no
(1/11/2007) - Professor Jonathan Adler's op-ed appeared in the Columbus Dispatch and the San Diego Tribune. Professor Adler explains why the Supreme Court should reject the claim that the Clean Air Act requires the regulation of carbon dioxide and other greenhouse gases. Read full op-ed.

Professor Adler was also recently featured in various media outlets providing commentary on the Supreme Court's oral argument on global warming in Massachusetts v. EPA. He was invited to submit the "opposing view" column in USA Today. He was a panelist in discussion on the topic at the American Enterprise Institute which was later broadcast on C-Span. Professor Adler also co-authored an amicus brief on the subject, and has been blogging extensively on the case at the Volokh Conspiracy, the weblog that won first place in the "Best Law Blog" category in 2006.

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Prof. Michael Scharf to speak at City Club Friday Forum Jan. 12
(1/8/2007) -

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Memorial service to honor longtime law professor Peter D. Junger
(1/4/2007) - The service will be Thursday, January 11 at 7:30 p.m. in Room 159 of Gund Hall. Professor Emeritus Peter D. Junger passed away in November. He taught at the law school for 31 years.

Professor Junger grew up in Wyoming. He received his A.B in 1955 and his LL.B. in 1958, both from Harvard. He practiced as a real estate lawyer in the New York firm, Patterson Belknap Webb, from 1961-70. He began teaching as an Associate Professor at Case Western Reserve University School of Law in 1970 and served until 2001. He became Professor Emeritus in 2002.

Although his field was property law, Professor Junger was deeply involved in the computer revolution. He was active in an early artificial intelligence group on the campus and worked on issues relating to computer privacy and data encryption. He filed a lawsuit challenging a federal regulation that barred the export of data encryption software. Professor Junger argued that the regulation infringed his First Amendment rights in that it prevented him from showing encryption software to foreign nationals who were in his class on computers and law. The case was dismissed by the trial court but the 6th Circuit Court of Appeals reversed that decision and upheld Professor Junger's claim that computer source code was expression protected by the First Amendment. Just before he died, Professor Junger completed an article arguing against the patentability of software.

All of Professor Junger's students, colleagues, and friends are invited to attend the memorial service. Those who would like to speak at the service or to submit written anecdotes or reminiscences about Professor Junger should contact Professor Wilbur Leatherberry (368-3585) or Professor Jonathan Entin (368-3321).

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Conversation with Supreme Court Justice Antonin Scalia will be moderated by deans of Case Western Reserve University School of Law and Cleveland-Marshall College of Law
(1/3/2007) - The Cleveland Clinic's Ideas for Tomorrow speaker series will present a conversation with Antonin Scalia, Associate Justice of the Supreme Court of the United States. The program will begin at 5 p.m., January 10, at the InterContinental Hotel and MBNA Conference Center, 9801 Carnegie Ave. Gary Simson, dean of the Case Western Reserve University School of Law and Geoffrey Mearns, dean of the Cleveland-Marshall College of Law at Cleveland State University, will moderate the conversation, followed by a question and answer session.

Interested persons must register by January 8. For more information call 216-932-3448. The event is sponsored by the Cleveland Clinic, Case Western Reserve University, Cleveland State University, and the Cleveland and Cuyahoga County bar associations.

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Professor interviewed on NPR's All Things Considered about Saddam Hussein's rushed trial and execution
(1/3/2007) - Critics have questioned the validity of the proceedings that led to Saddam Hussein's execution. Professor Michael Scharf, co-author of the book Saddam on Trial: Understanding and Debating the Iraqi High Tribunal was interviewed by the National Public Radio show All Things Considered on December 30, 2006.

Access an audio archive.

Professor Scharf, one of the experts to train the judges and prosecutors of the Iraqi Special Tribunal, has been frequently sought for commentary on the trial's proceedings. Recently, he was quoted in:
The Christian Science Monitor, January 2, 2007
The Chicago Tribune, December 31, 2006
The Plain Dealer, December 30, 2006
The Toronto Star, December 30, 2006
The New York Post, December 27, 2006.

He has also recently appeared on the following TV and radio news broadcasts:

• Court TV, January 2, 2007 (transcript)
• National Public Radio, "Weekend All Things Considered," December 30, 2006
• Fox News, December 30, 2006
• CNN News, December 30, 2006
• CBC Radio, December 30, 2006
• ABC News "Nightline," December 29, 2006
• CNN, "Anderson Cooper 360 Degrees," December 29, 2006
• FOX News Network, "Hannity and Colmes," December 29, 2006
• Bloomberg TV, December 29, 2006
• Cleveland Channel 3, 6:00 pm News, December 29, 2006
• Cleveland Channel 5, 11:00 pm News, December 29, 2006
• CNN News, December 26, 2006

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Guiora Op-Ed in Baltimore Sun online
(12/19/2006) -

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Professors of law and engineering to publish joint article on computer security and privacy rights
(12/15/2006) - Professor of law and professor of engineering to publish joint article on computer security and privacy rights Law school Associate Dean Sharona Hoffman and Andy Podgurski, Associate Professor at the School of Engineering, will publish "In Sickness, Health, and Cyberspace: Protecting the Security of Electronic Private Health Information" in the Boston College Law Review in March 2007. The husband and wife team presented their paper at a conference in Edinburgh, Scotland, in October (the IV Computer Law World Conference).

Abstract of the article:

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Israel Supreme Court cites Prof. Amos Guiora's law journal article
(12/14/2006) - On December 13, 2006 The Israel Supreme Court (769/02) sitting at The High Court of Justice cited Professor Amos Guiora's article, "Targeted Killing as Active Self-Defense," which was published in the Case Western Reserve University School of Law, Journal of International Law, Volume 36, Numbers 2 and 3 (36 Case W. Res. J. Int’l L. 319 (2004)) in its ruling that the Israel Defense Forces policy of targeted killings of terrorists does not categorically violate international law, and the legality of each targeted killing must be evaluated on an individual basis. Prof. Guiora is director of the Institute for Global Security Law and Policy at Case Western Reserve University School of Law.

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Institute for Global Security Law and Policy Director, Prof. Amos Guiora, has an editorial titled, "Defining the Mission," published in Arizona's East Valley Tribune
(12/3/2006) -

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Opposing view: It's not up to the EPA
(11/29/2006) - Professor Jonathan Adler argues that if global warming requires regulation, that is a decision for Congress to make in a USA Today column on Massachusetts v. EPA, the global warming case argued at the Supreme Court. Professor Adler gave a talk on the case last week that was broadcast on C-Span (watch video here). He also co-authored an amicus brief on the subject, and has been blogging extensively on the case at the Volokh Conspiracy. The Los Angeles Daily Journal has asked him to write an article on the case as well.

Professor Adler teaches a course in environmental law at Case Western Reserve University School of Law. He is the co-director of the Center for Business Law and Regulation.

Excerpt from Professor Adler's USA Today column:

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Professor Calvin Sharpe delivered the James Mullenbach Endowed Lecture at Oberlin College
(11/20/2006) -

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Professor George Dent spoke at Rutgers Law Review Symposium
(11/13/2006) - Professor Dent, Schott-van den Eynden Professor of Business Organizations Law at Case Western Reserve University School of Law, spoke at a Rutgers Law Review Symposium on November 10, "Same-Sex Couples & 'The Exclusive Commitment:' Untangling the Issues & Consequences." Held at Rutgers' Newark campus, Prof. Dent was a speaker on the panel, "Debating the Arguments--NJ's Lewis v. Harris Decision." Professor Dent's article on the topic will be published in the Rutgers Law Review Symposium issue.

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Law Professor Michael Scharf Provides National Commentary on Saddam Trial Verdict
(11/10/2006) - In the last week, Professor Scharf was quoted in the New York Times, Washington Post, Reuters, and USA Today, and appeared on two dozen national television and radio news shows (including NBC's "The Today Show," CNN, and Fox News) to discuss the Saddam Hussein Trial verdict. Listen to his November 6 interview on National Public Radio's "Morning Edition".

Professor Scharf and Greg McNeal (Assistant Director of the Law School's Institute for Global Security Law and Policy) are the co-authors of Saddam on Trial, the first published book on the Saddam Trial. They will be doing a book talk and signing at Joseph Beth book store at Legacy Village on the evening of November 29. The event is tentatively scheduled to be broadcast on C-SPAN's Book TV.

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Briefing by law professor and student to the Congressional Human Rights Caucus to be included in Congressional Record
(11/5/2006) - Professor William Carter and Lydia Bakaki, a current LL.M. student from Uganda, gave a briefing at the Rayburn House Office Building to the Congressional Human Rights Caucus regarding the international human rights standards governing women's human rights, property rights, and socioeconomic status in sub-Saharan Africa. The Caucus is co-chaired by Senators Brownback and Harkin and Representatives Lantos and Wolf. The briefing was chaired by Congressman Kucinich. Among other attendees were Annette Lantos, Executive Director of the Congressional Human Rights Caucus, Leticia Diaz, Senior Policy Advisor for Human Rights and International Affairs for the National Association of Social Workers (and former Deputy Director for USAID in Uganda), Christina Hartman, Program Officer for Freedom House's African Institute for Democracy and Rule of Law, and Elizabeth Kucinich. At Congressman Kucinich's request, a written summary of Professor Carter's and Ms. Bakaki's remarks will be prepared for inclusion in the Congressional Record. (Sept. 28, 2006).

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Faculty Workshop Series on Legal Theory
(11/5/2006) - The Spring 2007 workshop series is entitled: "Legal Theory: Justificational Analysis in Law." Dean Gary J. Simson appointed Professor Juliet Kostritsky to organize and develop the series. Each semester, 6-7 workshops will be offered at which a faculty member from another university will present their work and respond to questions and comments from Case law school faculty. Professor Kostritsky — the John Homer Kapp Professor of Law and a nationally recognized scholar in contract law and theory — identifies and invites scholars elsewhere whose work would be of particular interest for the aspects of legal theory that are this semester's focus.

The series will host renowned scholars in their fields who will address some of the most basic issues confronting judges and legal scholars, legislators, administrative agencies, and advocates. These scholars have developed and will draw on the central analytical models from various disciplines, including economics (various forms of efficiency) and moral philosophy. This semester these scholars will use their models to address the problem of how parties contract when the future is unknowable. They will explore how contracting when contingencies are unforeseeable affects the normative question of what role courts should play in enforcing contracts. The problem of contracting under uncertainty addressed by speakers in the series affect a wide range of contexts in law, including arbitration, insurance, labor and all types of agency contracts, including enterprise design and the capital markets. Scholars in the series will identify when legal intervention would be likely to increase welfare for the parties and for society and when courts should assume a less active role. Economic insights will be used to compare private with public enforcement schemes and to assess optimal remedies. Speakers in the series will use insights gained from contract theory to illuminate legal reasoning and legal precedent. For example, one speaker will address the interplay between insurance law and liability rules in a presentation entitled "Which Came First, the Liability or the Insurance?" (Professor Kenneth Abraham of the University of Virginia.) and another speaker (Professor Luca Anderlini of Georgetown University) will address "Court Intervention in Contractual Relationships" with a special focus on the problem of unforeseen contingencies.

A few of the speakers appearing include:

Professor Jody S. Kraus is the Robert E. Scott Distinguished Professor of Law at the University of Virginia School of Law. His most recent publication is entitled: "A Philosophical Approach to the Economic Analysis of Contract Law" (2006 Virginia Journal). He is also the co-editor (with Steven D. Walt) of The Jurisprudential Foundations of Corporate and Commercial Law (Cambridge University Press, 2000). The topic of his workshop on February 7 will be "The Jurisprudential Origins of Contemporary Contract Theory."

Professor Avery W. Katz is the Vice Dean and Milton Handler Professor of Law at Columbia University School of Law. Professor Katz will speak on March 1, 2007, on "Interference with Contractual Relations: A Transactional Approach." or on "Optimal Contract Remedies under Private versus Public Enforcement Regimes." He is an editor of the International Review of Law and Economics. His most recent articles include "The Economics of Form and Substance in Contract Interpretation," (2004 Columbia Law Review) and "The Option Element in Contracting" (2004 Virginia Law Review).

Professor Kenneth S. Abraham will speak on Thursday March 22, 2007. Professor Abraham will address, "Which Came First, the Liability or the Insurance?" from his forthcoming book. Professor Abraham is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He has advised the American Law Institute's ongoing revision of the Restatement of Torts. His recent books include: Insurance Law and Regulation: Cases and Materials (Foundation Press, 4th ed. 2005) and The Forms and Functions of Tort Law (Foundation Press, 1997; 2d ed. 2002).

Professor Luca Anderlini will speak on March 28, 2007. Professor Anderlini is currently a Professor of Economics at Georgetown University, where he has taught since 2001. He completed his PhD in Economics in 1987 at University of Cambridge, Faculty of Economics & Politics. From 1987 to 1999, he was Lecturer of Economics, St. John's College and Faculty of Economics and Politics, University of Cambridge, and he was Professor of Economics from 1999 to 2001 in the Department of Economics at the University of Southampton. His workshop topic "Court Intervention in Contractual Relationships" will reflect on two recent papers (co-authored with Leonardo Felli and Andrew Postlewaite) titled: "Courts of Law and Unforeseen Contingencies," Journal of Law, Economics & Organization, forthcoming, 2007, and "Should Courts Always Enforce What Contracting Parties Write?" Georgetown University, mimeo, 2006.

Additional speakers will be announced as workshops become confirmed. For further information, contact Professor Juliet Kostritsky at juliet.kostristsky@case.edu.

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Professor Ann Southworth participates in the 1st Annual Conference on Empirical Legal Studies
(10/28/2006) - Her paper, co-authored Jack Heinz and Anthony Paik, "Lawyers of the Right: Networks and Organization," has been accepted for publication by Law & Social Inquiry. Professor Southworth presented the paper during the conference at the University of Texas Law School in October.

Abstract
Lawyers for conservative and libertarian causes are active in organizing and mobilizing interest groups within the conservative coalition, and networks of relationships among those lawyers help to maintain and shape the coalition. Using data gathered in interviews with 72 such lawyers, the article analyzes characteristics of the lawyers and the structure of their networks. The findings suggest that the networks are divided into segments or blocks that are identified with particular constituencies, but that a distinct set of actors with an extensive range of relationships serves to bridge the constituencies. Measures of centrality and brokerage confirm the structural importance of these actors in the network, and a search of references in news media confirms their prominence or prestige. This "core" set of actors occupies the "structural hole" in the network that separates the business constituency from religious conservatives. Libertarians, located near the core of the network, also occupy an intermediate position. Causal analysis of the formation of ties within the network suggests that the Federalist Society has played an important role in bringing the lawyers together.

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First Book about Saddam Hussein Trial Now in Print
(9/28/2006) - With the judgment in the Saddam Hussein trial to be issued in two weeks, on Oct. 16, 2006, Carolina Academic Press has just published Saddam on Trial: Understanding and Debating the Iraqi High Tribunal -- a timely and unique book of essays that examine over fifty issues related to this historic trial. The book was written by Case School of Law professors Michael Scharf (Director, Frederick K. Cox International Law Center) and Gregory McNeal (Assistant Director, Institute for Global Security Law & Policy), who have been assisting the Iraqi High Tribunal, and features contributions by Cherif Bassiouni, David Crane, Bill Schabas, Mark Ellis, Leila Sadat, Mark Drumbl, Paul Williams, and other leading experts.

A year ago, on Oct. 19, 2005, Saddam Hussein and seven of his henchmen began a legal battle of epic proportions, with their lives literally in the balance. The first of several planned trials before the Iraqi High Tribunal focused on the destruction of the town of Dujail and the torture and murder of its inhabitants in retaliation for a 1982 failed assassination attempt. Billed by the international media as "the real trial of the century," the televised proceedings were punctuated by gripping testimony of atrocities, controversial judicial rulings, assassinations of defense counsel, resignation of judges, scathing outbursts, allegations of mistreatment, hunger strikes, and even underwear appearances.

• Was it a mistake to try Saddam in Baghdad before a panel of Iraqi judges?
• Was the Iraqi High Tribunal a legitimate judicial institution?
• Were the proceedings fundamentally fair?
• Did the judges react properly to the defendants’ attempts to derail the proceedings?
• Did the Prosecution prove its case?
• Did Saddam have any valid defenses?
• What precedents did this extraordinary trial set?

Saddam on Trial: Understanding and Debating the Iraqi High Tribunal provides the reader with a thorough understanding of these and a host of other issues related to the Saddam Trial. The text offers a series of essays, in which leading international and criminal law experts discuss and debate more than fifty discrete questions raised by the trial. The book also includes a psychological profile of Saddam Hussein, a chronology of the trial, a glossary of key legal terms, a synopsis of the charges and applicable law, a summary of the evidence and testimony, and English translations of the Tribunal’s Statute, Rules, and other relevant instruments.

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Professor's op-ed on coercive interrogation published in Cleveland's Plain Dealer
(9/28/2006) - Professor Amos Guiora, director of the Institute for Global Security Law and Policy, addresses the issue of coercive interrogation in the context of the U.S. efforts to combat terrorism.

Excerpt:
In the past month, the Bush administration and Congress have battled over important counterterrorism issues. These issues revolve around two questions: 1) whether classified information is admissible at trial against terrorists and 2) whether evidence obtained during the course of unlawful interrogations may be admitted in court.

Although both inquiries are important, they skirt the fundamental issue: What are the limits of interrogation in the aftermath of 9/11? The answer is of absolute importance to those charged with protecting our security - America's interrogators.

Read full article.

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Case Law Review Symposium on Incomplete Contracts
(8/14/2006) - The Symposium on "Incomplete Contracts: Judicial Responses, Transactional Planning, and Litigation Strategies" was organized by Professor Juliet P. Kostritsky. A summary of the Symposium follows.

The recognition that parties will often fail to achieve completely contingent contracts that provide for an optimal outcome in any future state of the world raises the important question of what role courts could or should play in such contracts.

Scholars working in the law-and-economics tradition have suggested that courts should use a hypothetical bargain approach to incompleteness, filling in terms that are optimal (efficient) and that the parties themselves would have achieved were it not for the transaction costs. While the authors in this Symposium draw on this traditional economic analysis of contracts, they explore new insights from economics that complicate the analysis of incompleteness in contracts. Relying on economists' theories of incomplete contracts, the Symposium authors identify uncertainty and the cost of and limited access to information as key problems affecting parties both ex ante when contracts are being drafted and ex post when they are being enforced. Uncertainty is a factor that makes it difficult to negotiate contracts that can simultaneously protect specific investments and also promote efficiency ex post.

The Symposium authors sort out what economists and lawyers mean when they reference an "incomplete contract" and identify two key assumptions of the new economic literature. These two assumptions are (1) courts are imperfect and may be unable to verify certain facts and (2) parties can renegotiate the terms of their contracts. Using these insights, the three authors address the implications of the verifiability problem and possibility of renegotiating contractual terms for (1) parties designing complete and contingent efficient contracts, (2) scholars designing theoretical solutions to the verifiability problem, (3) courts searching for rules that will best promote optimal investment beforehand and ex post efficiency once the future has resolved the prior uncertainty, and (4) contracts scholars attempting to decide what issues should be further explored."

Juliet P. Kostritsky, Introduction

Avery Katz, Contractual Incompleteness, A Transactional Perspective

Robert E. Scott and George G. Triantis, Incomplete Contracts and the Theory of Contract Design

Dick Craswell, The 'Incomplete Contracts' Literature and Efficient Precautions

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Israel is embroiled in the first stage of the "New Hundred Year War," says professor
(8/14/2006) - Amos Guiora, director of the Institute for Global Security Law and Policy at the law school, discusses current unrest with the Cleveland Jewish News. Read full story.

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Prof. Guiora will discuss the Middle East on "Your Call" political affairs call-in show Tuesday, August 8
(8/7/2006) - Director of the Institute for Global Security Law & Policy, Amos Guiora will discuss counter-insurgency campaigns from 1-2 PM Eastern Time on KALW-FM public radio in San Francisco. The broadest can be streamed live on the Internet, or on demand as a podcast any time after the event. Guiora served for 19 years as Lt. Col. in the Israel Defense Forces.

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Professor Jonathan Adler testifies before Senate Environment Committee
(8/1/2006) - Co-Director of the Center for Business Law and Regulation, Prof. Adler testified August 1, 2006 before the Senate Subcommittee on Fisheries, Water and Wildlife on the implications of the Supreme Court's decision in Rapanos v. United States. Read his testimony.

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Professor Michael Scharf testified before the House Armed Services Committee, Hearing on Standards of Military Commissions &Tribunals.
(7/26/2006) - Official recordings and transcripts are available on the House Armed Services Committee website. To hear a recording of the hearing, click on the microphone next to the July 26 Hearing ().

Direct links to the recording and Professor Scharf's prepared statement are provided below:

• Audio (Windows Media)
• Statement (PDF)

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The text of Professor Scharf's prepared statement is reproduced below.


House Armed Services Committee Hearing on Standards of Military Commissions and Tribunals
July 26, 2006
Prepared Statement of Michael P. Scharf
Professor of Law and Director
Frederick K. Cox International Law Center
Case Western Reserve University School of Law
I. Introduction

Mr. Chairman, members of the Committee. I am Michael Scharf, Professor of Law and Director of the International Law Center at Case Western Reserve University School of Law. I have been asked to testify today as an expert on the Nuremberg and Tokyo Tribunals and the modern international criminal tribunals. During the first Bush and Clinton Administrations, I served as the Attorney Adviser in the Office of the Legal Adviser of the U.S. Department of State with responsibility for issues relating to war crimes prosecutions, and I helped draft the Statute and Rules of Procedure of the International Criminal Tribunal for the Former Yugoslavia – the first international war crimes tribunal since Nuremberg. I am the author of seven books about international criminal tribunals, including two that have won national book awards. I have trained the judges of the Yugoslavia Tribunal, Rwanda Tribunal, and most recently the Iraqi High Tribunal, and the War Crimes Research Office at Case which I supervise currently provides research assistance to five international war crimes tribunals. [1] A full biography is attached.

Mr. Chairman, thank you for the opportunity to address the Committee on the international standards of due process that are required for the Military Commissions under international law.

II. Hamdan v. Rumsfeld

Last month, in Hamdan v. Rumsfeld, the Supreme Court ruled that Article 21 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. Section 821, had conditioned the President's use of military commissions on compliance with the "rules and precepts of the law of nations," including in particular Common Article 3 of the Geneva Conventions of 1949, and other provisions recognized by the United States as customary international law such as Article 75 of Protocol I to the Geneva Conventions.

The Supreme Court held that the Military Commissions violated the required international rules of due process by:

• Authorizing the exclusion of the defendant from his own trial (whenever the government invokes "national security concerns" whether the particular evidence is actually classified or not).
• Permitting the admission of unreliable evidence (such as hearsay and evidence gained through coercion).
• Permitting witnesses to testify without disclosing their identities to the defendant (in order to protect intelligence sources and methods).
• Establishing review procedures that do not amount to an appeal to an independent higher court.

The Supreme Court found it significant that these violations were also departures from the procedures employed in U.S. courts-martial, and that the Executive Branch had made no effort to specify why adherence to the courts-martial procedures "was not practicable" for trial of suspected al Qaeda terrorists, as required by Article 36 of the UCMJ.

III. International War Crimes Tribunal Precedent

The Right to be Present and to Appeal to a Higher Independent Court

In his recent testimony before the Senate Judiciary Committee on July 11, the Deputy General Counsel of the Department of Defense, Paul Cobb, drew on the precedent of the Nuremberg and Tokyo Tribunals and the modern International Criminal Tribunals for the former Yugoslavia and Rwanda to argue that international law actually permits trials in absentia, use of hearsay evidence, use of anonymous witnesses, and other deviations from what is required in a United States Court-Martial proceeding.

It is true, for example, that the Nuremberg Tribunal tried Hitler's secretary, Martin Bormann in absentia (it was later discovered that he had actually been dead at the time of the trial). It is also true that the Nuremberg Tribunal admitted into evidence 300,000 unsworn affidavits. And it is true that the Nuremberg Tribunal granted no right of appeal, nor a right to challenge any of the judges.

But international law has not accepted those practices. Rather, the legacy of the Nuremberg Tribunal was tarnished by such procedural shortcomings. Thus, following Nuremberg, U.S. Supreme Court Justice William O. Douglass remarked "I thought at the time and still think that the Nuremberg Trials were unprincipled," and Chief Justice Harlan Fiske Stone characterized the Nuremberg trial as a "high-grade lynching party." Even Nuremberg's Deputy Prosecutor, Telford Taylor, acknowledged that "total reliance on untested depositions by unseen witnesses is certainly not the most reliable road to factual accuracy." And Nuremberg's sister Tribunal, the Tokyo Tribunal, received even harsher criticism, with one of the Tokyo Tribunal's own judges, Judge Henri Bernard of France, opining that "so many principles of justice were violated during the trial that the Court's judgment certainly would be nullified on legal grounds in most civilized countries."

In the years following the Nuremberg and Tokyo trials, the international community took action to address the procedural deficiencies of the world's first international war crimes tribunals. The 1949 Geneva Conventions provided for the first time a list of minimum required due process guarantees for any international or domestic war crimes proceedings. This list of due process safeguards was expanded in Article 75 of Additional Protocol I to the Geneva Conventions, which the Supreme Court in Hamdan v. Rumsfeld noted constituted customary international law. These due process guarantees were further elaborated upon in the Statutes and Rules of the International Criminal Tribunal for the Former Yugoslavia (1993), the International Criminal Tribunal for Rwanda (1994), and the International Criminal Court (1998), and the International Tribunals have repeatedly held that these due process rights are required of all war crimes prosecutions under international law.

Each of the modern war crimes tribunals provide the following due process protections: the presumption of innocence; the right to be informed promptly and in detail of the charges and to have adequate time and facilities to prepare a defense and to communicate freely with counsel of choice; the right to be tried without undue delay; the right to be present during trial and to appointment of counsel; the right to have counsel present during questioning; the right to examine and confront witnesses; the right against self-incrimination and not to have silence taken into account in determining guilt; and the right to disclosure by the Prosecution of exculpatory evidence, and witness statements; and the right to appeal. It is noteworthy that even the Statute of the Iraqi High Tribunal, which was promulgated by U.S. Administrator Paul Bremer in 2003, includes these minimum due process rights.

Thus, recourse to the Nuremberg and Tokyo experience cannot today be used to justify departure from these rights. Rather, any legislation on military commissions needs to reflect the practice of international humanitarian law as it has evolved over the last sixty years, not as it existed at the time of Nuremberg and Tokyo. The law has evolved and there is no doubt that we are bound by it.

Consistent with these internationally recognized fundamental due process guarantees, there should be a right of appeal from the Military Commissions to the Court of Appeals for the Armed Forces, as in the case of courts-martial judgments under the UCMJ. Moreover, the defendant and his civilian counsel should be permitted to be present for all proceedings before the Commission, consistent with the internationally recognized right to be present at one's trial. In the event that classified information must be considered, as Senator Specter has proposed, the Military Commission should employ a process similar to the Classified Information Procedures Act, which authorizes a presiding judge to sift through the information and make available to the defense only whatever is directly relevant and exculpatory, with the option of providing redacted summaries or making stipulations of fact to protect sensitive intelligence sources and methods. See Cong. Rec., June 29, 2006, S6796-S6801 (Statement of Senator Specter).

Use of Anonymous Witnesses

Previous expert witnesses have brought to this Committee's attention the fact that the Yugoslavia Tribunal has permitted use of "anonymous witnesses," whose identity was withheld from the defendant. This precedent, they assert, supports a similar practice within the Military Commissions. It is true that in its very first case, the Yugoslavia Tribunal permitted the testimony of an "anonymous witness" (known only as witness "K") whose identity was withheld from the defendant in order to protect the witness and his family from retaliation. See Prosecutor v. Tadic, No. IT-94-I-T (Aug. 10, 1995) (Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses). But this case is no longer good law.

At the time of the Tadic decision, one of the three judges (Judge Stephens from Australia) filed a strong dissent, stating that the Yugoslavia Tribunal Statute "does not authorize anonymity of witnesses where this would in a real sense affect the rights of the accused." Shortly thereafter in the American Journal of International Law, former Department of State Legal Adviser Monroe Leigh argued that the majority of the Trial Chamber struck the wrong balance between the protection of the witnesses and the rights of the accused. The right to examine or cross-examine witnesses guaranteed by the Yugoslavia Tribunal Statute, Leigh argued, cannot be effective without the right to know the identity of adverse witnesses. Leigh concluded that "it is a radical proposition to suggest that the minimum rights of the accused to a fair trial can be diminished in order to protect witnesses and victims," a point also made in Judge Stephen's dissent in Tadic. See Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 Am. J. Int'l L. 235 (1996). See also Monroe Leigh, Witness Anonymity is Inconsistent with Due Process, 91 Am. J. Int'l L. 80 (1997).

Subsequently, the Yugoslavia Tribunal rescinded the grant of anonymity for witness "K," and the Tribunal has never since granted such a measure. In a later case, the Tribunal made clear that witness anonymity was only appropriate during the pre-trial phase, and that in any event a witness's identity must be disclosed to the Defendant a reasonable time before testifying, although the witness's identity may continue to be protected from the media and public. Prosecutor v. Blaskic, Decision on the Application of the Prosecutor requesting protective measures for victims and witnesses, 5 November 1996, at paras. 22-23. Thus, the Yugoslavia Tribunal precedent does not in fact support the use of anonymous witnesses in the Military Commission. Rather, the Yugoslavia Tribunal's experience reaffirms that the international right of confrontation requires that the defendant know the identity of his accuser.

Hearsay Evidence

Like the Military Commissions, the Rules of Procedure of the Yugoslavia Tribunal and Rwanda Tribunal allow the Trial Chamber to hear any evidence deemed to have probative value, including hearsay evidence. However, before admitting hearsay evidence, the International Tribunals require that a Trial Chamber must assess its "indicia of reliability." Kordic and Cerkez, Appeals Chamber Decision on Appeal Regarding Statements of a Deceased Witness, 21 July 2000, at para 24.

The American hearsay rule generally prohibits a court from using a person's assertion as equivalent to testimony of the fact asserted, unless the asserter is brought to testify in court where he may be probed and cross-examined as to the grounds of his assertion, his sincerity, and his credibility. The American rule against hearsay is not, however, absolute. The Federal Rules of Evidence contain various exceptions to the rule against hearsay, including a residual exception recognized for situations in which there are circumstantial guarantees of trustworthiness, if the court determines that: (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence. Fed. R. Evid. 804(b)(5).

The American hearsay rule reflects the view that hearsay is inherently less reliable than direct testimony in several respects. First, a hearsay declarant has not made a solemn oath or declaration before a judicial authority. In contrast, if he were to testify to matters under oath before the Tribunal, he would be more aware of the solemn nature of the proceedings, the importance of testifying truthfully and accurately, and the possible legal consequences of the failure to testify or to do so truthfully. Second, a hearsay declarant is not subject to face-to-face confrontation through cross-examination, which is fundamental to establish the reliability of the statement. As the U.S. Supreme Court has stated, "face-to-face confrontation generally serves to enhance the accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an innocent person." Maryland v. Craig, 497 U.S. 836, 846 (1990). Third, if the person in the courtroom has either misheard or misremembered the hearsay statements he quotes, this would be almost impossible to establish through cross examination. Finally, the judges can only fully assess the credibility and veracity of these statements by observing the demeanor of the actual declarant while testifying.

While recognizing the inherent unreliability of hearsay testimony, the Yugoslavia and Rwanda Tribunal judges have pointed out that as professional judges, as opposed to lay jurors, they are capable of assessing the appropriate weight and credibility of such statements. Fundamentally, the reason behind the common law's relatively inflexible approach to hearsay evidence has been to ensure that lay jurors would not be unduly influenced by evidence that judges themselves knew, from experience, to be frail and unreliable. It is significant that the International Tribunal judges have been careful to segregate hearsay from direct testimony in preparing their judgments. According to the caselaw of the Tribunals, hearsay evidence is to be considered "with caution." In the recent Samanza case, the Rwanda Tribunal specified in its judgment which evidence had been hearsay and explained that such evidence had to be substantially discounted. Prosecutor v. Laurent Semanza, ICTR-97-20-T (May 15, 2003).

In contrast to the International Tribunals, the Military Commissions are made up of military officers who are not usually legally trained, let alone judges with a lifetime of judicial experience under their belts. Thus, the international tribunal practice of accepting hearsay evidence without restriction may not in fact be appropriate for the Military Commissions. At a minimum, the Military Commissions should be required to assess the "indicia of reliability" before admitting hearsay, and should consider hearsay evidence "with caution," consistent with the caselaw of the International Tribunals.

Torture Evidence

Reports by government officials and in the press include reports of Guantanamo detainees being subject to "water boarding" (simulated drowning), tied to a leash and led around like dogs, stripped naked, held in isolation for months on end and subjected to consecutive days of 20-hour interrogations, subjected to sleep deprivation, being chained hand and foot to the floor for eighteen hours or more without food or water, and being subjected to temperatures below freezing or well over one hundred degrees, having their genitals squeezed and thumbs bent back by interrogators, and being kept for months on end in isolation in a cell that was always flooded with light. See Neil A. Lewis, FBI Memos Criticized Practices at GuantanamoNew York Times, December 7, 2004, at A19.

Until the issuance of Military Commission Instruction No. 10 on March 27, 2006, on the eve of oral arguments in the Supreme Court in Hamdan v. Rumsfeld, the rules of the Military Commissions authorized admission of evidence even if it had been obtained through the most severe abuses constituting torture. While Military Commission Instruction No. 10 explicitly prohibited the Commission from admitting "statements established to have been made as a result of torture," the rule did not bar use of evidence obtained through other forms of unlawful coercion, including cruel, inhuman or degrading treatment. In his recent testimony before the Senate Judiciary Committee, Steven Bradburry, acting Assistant Attorney General and head of the DOJ Office of Legal Counsel, argued that it was necessary to use evidence extracted using a variety of coercive techniques, including water boarding, which have been condemned by the European Court of Human Rights, the International Committee on Human Rights, and UN Human Rights Commission. See Aksoy v. Turkey, 1996-VI Eur. Ct. H.R. 2260; Aydin v. Turkey; 1997-V Eur. Ct. H.R. 1866; Selmouni v. France 1999-V Eur. Ct. H.R. 155; Selmouni v. France 1999-V Eur. Ct. H.R. 155, 183; Robert Goldman, Trivializing Torture: The Office of Legal Counsel's 2002 Opinion Letter and International Law Against Torture," 12 Hum. Rts. Br. 1 (2004) (and cases cited therein).

The prohibition against the use of evidence obtained by torture or other forms of unlawful coercion is one of the "judicial guarantees which are recognized as indispensable by civilized people" for purposes of Common Article 3(1)(d) of the Geneva Conventions. Thus, the Rules of Procedure of the Yugoslavia and Rwanda Tribunal each provide that "no evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings." ICTY Rule 95; ICTR Rule 95. The Rule, which was proposed by the United States, makes clear that the Tribunal must refuse to admit evidence – no matter how probative – if it was obtained by improper methods. Since the Tribunals do not utilize a pre-trial proceeding to determine admissibility of evidence, this rule is enforced not by keeping the fact finders from viewing such evidence, but rather by prohibiting reference to the inadmissible evidence in the written opinion of the Tribunal.

Even the Iraqi High Tribunal has a provision excluding use of evidence obtained through torture or other forms of unlawful coercion. Rule 59, IHT Revised Rules of Procedure (adopted October 19, 2005), available at law.case.edu/saddamtrial.

A clear statement by Congress rejecting the use of such evidence by Military Commissions (similar to Article 31(d) of the UCMJ) would have two important benefits. First, it would protect against the dangers of unfair trials, and would remove a stain clouding the legitimacy of these important trials in the eyes of the world. Second, it would serve an important prophylactic function in deterring practices that are abhorrent to international law.

IV. The Later in Time Rule

I understand that some in this room may favor the idea of responding to Hamdan by enacting legislation that would simply give Congressional authorization to the President's existing Military Commission system without changing a thing. It is true that for purposes of domestic law, Congress can override the requirements of the 1949 Geneva Conventions if it enacts a later-in-time statute that manifests a clear intent to violate the provisions of these venerable international humanitarian law treaties, to which the United States is a ratifying party. See Breard v. Greene, 523 U.S. 371 (1998). However, Congress has always been extremely reluctant to use this power, as it renders the United States in breach of its international obligations with often serious international legal and diplomatic consequences.

Do we really want to be the only country in the world to go on record as abrogating the Geneva Conventions?

Since the United States military is more forward-deployed than all other nations combined, strict adherence to the Geneva Conventions is more important to us than any other nation. Since the United States is a world leader, our practice is followed by other nations. If we try detainees in violation of internationally-required fair trial procedures, we increase the risk that our own troops and those of our allies (such as Israel) will be subject to similar mistreatment at the hands of others. And if by approving departure from the requirements of the Geneva Conventions, Congress is perceived as expressing disdain for some of the most important treaties of the international system, it will seriously complicate our diplomatic efforts to solve the Lebanon crisis, to eventually withdraw from Iraq, and to maintain support for our efforts to suppress terrorism worldwide.

Some believe that increasing the standards of due process and admissibility of evidence for the Military Commissions would prevent the government from getting convictions. Thus, the Deputy General Counsel of DOD, Paul Cobb, told the Senate on July 11, 2006: "The evidence that the government has available to it in the war with al Qaeda is not always going to have the indicia of reliability that we would expect in our domestic criminal court proceedings." The international tribunal due process rules that I have discussed today do not rise to the level of the protections afforded in a domestic criminal court proceeding. They do, however, provide enough protections to remedy the deficiencies in the existing Military Commissions. The internationally required standards may make it somewhat harder to obtain convictions in some of these cases. But in the broader scheme of things, we lose far more than a few trials when we insist on departing from the due process rights required by the Geneva Conventions and international law.

V. Conclusion

Perhaps no single issue better defines who we are as a nation then our treatment of detainees. I fully understand, based on my professional background, the enormous complexity of counter-terrorism policy, and deeply respect those bravely fighting terrorism world-wide. But denial of internationally recognized fundamental due process rights to detainees violates the core principles on which our great nation was founded, and in the long run will endanger American troops who have so bravely chosen to defend those sacred principles.
Michael P. Scharf
Case Western Reserve University School of Law
11075 East Blvd.
Cleveland, Ohio 44106-7148
Email: Michael.Scharf@case.edu
Phone: (216) 368-3299

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Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. In February 2005, Professor Scharf and the Public International Law and Policy Group, a Non-Governmental Organization he co-founded, were nominated for the Nobel Peace Prize by six governments and the Prosecutor of an International Criminal Tribunal for the work they have done to help in the prosecution of major war criminals, such as Slobodan Milosevic, Charles Taylor, and Saddam Hussein.

During the first Bush and Clinton Administrations, Professor Scharf served in the Office of the Legal Adviser of the U.S. Department of State, where he held the positions of Counsel to the Counter-Terrorism Bureau, Attorney-Adviser for Law Enforcement and Intelligence, Attorney-Adviser for United Nations Affairs, and delegate to the United Nations General Assembly and to the United Nations Human Rights Commission. In 1993, he was awarded the State Department's Meritorious Honor Award "in recognition of superb performance and exemplary leadership" in relation to his role in the establishment of the International Criminal Tribunal for the former Yugoslavia, including the drafting of its Statute and Rules of Procedure.

A graduate of Duke University School of Law, and judicial clerk to Judge Gerald Bard Tjoflat on the Eleventh Circuit Federal Court of Appeals, Professor Scharf is the author of over fifty scholarly articles and seven books, including Balkan Justice, which was nominated for the Pulitzer Prize in 1998, The International Criminal Tribunal for Rwanda, which was awarded the American Society of International Law's Certificate of Merit for the Outstanding book in International Law in 1999, Peace with Justice, which won the International Association of Penal Law Book of the Year Award for 2003, and casebooks on The Law of International Organizations and International Criminal Law. Scharf is also the author of "The Cleveland Principles of International Law on the Detention and Treatment of Persons in Connection with the Global War on Terror," a document endorsed by over 200 leading experts, which was provided to the U.S. Congress on the eve of the vote on the McCain Amendment.

Professor Scharf has testified as an expert before the U.S. Senate Foreign Relations Committee; his Op Eds have been published by the Washington Post, Los Angeles Times, Boston Globe, Christian Science Monitor, and International Herald Tribune; and he has appeared on ABC World News Tonight, CBS Evening News, Nightline with Ted Koppel, The O-Reilly Factor, The NewsHour with Jim Lehrer, The Charlie Rose Show, the BBC's The World, CNN, and National Public Radio. Professor Scharf also hosts an award-winning Blog on the Saddam Hussein Trial.

Winner of the Case School of Law Alumni Association's 2005 "Distinguished Teacher Award," Professor Scharf teaches International Law, International Criminal Law, Human Rights Law, the Law of International Organizations, and a War Crimes Research Lab. In 2002, Professor Scharf established the War Crimes Research Office at Case Western Reserve University School of Law, which provides research assistance to the Prosecutors of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the International Criminal Court, and the Iraqi Special Tribunal on issues pending before those international tribunals. Copies of over 120 of these research memos are available on the Frederick K. Cox International Law Center War Crimes Research Portal.

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[1] Case School of Law is also the only law school in the country advising the Prosecutor for the Office of Military Commissions. This program is run by my colleagues, Professors Amos N. Guiora and Gregory S. McNeal.

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Professor Michael Scharf debated Saddam Hussein's lawyer, former U.S. Attorney General Ramsey Clark
(7/26/2006) - The debate, about the fairness of the Saddam Hussein Trial , was broadcast on National Public Radio's "Talk of the Nation"

A transcript of the debate is reproduced below.

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Copyright 2006 National Public Radio (R)
All Rights Reserved
National Public Radio (NPR)
SHOW: Talk of the Nation 3:00 PM EST
July 19, 2006 Wednesday

CONAN: Saddam Hussein's first trial is scheduled to wrap up next week in Baghdad. The former Iraqi president is charged with crimes against humanity for his role in the torture and execution of 148 people in the city of Dujail, north of Baghdad.

The killings came in response to what has been described as an assassination attempt in 1982. It's been a long, complicated trial for an untested tribunal court system. Judges were removed, lawyers assassinated, and proceedings interrupted, sometimes by angry outbursts from Saddam Hussein himself. And there remain questions of fairness.

In a few minutes, we'll talk with Michael Scharf, a legal expert and part of the team that trained the Iraqi judges. But first, we'll talk to Ramsey Clark, former United States attorney general, one of Saddam Hussein's trial lawyers. He joins us now from his home in New York City. And it's nice to have you on TALK OF THE NATION.

Mr. RAMSEY CLARK (Attorney for Saddam Hussein; former U.S. Attorney General): Good afternoon. How are you?

CONAN: Very well, thanks. The defense team boycotted the last session, demanding greater security among other things. Will you and your team be in court next week?

Mr. CLARK: We didn't attend last week because of security, and we hope to see the president and the other defendants Saturday. The decision will be made at that time.

My impression is that the defendants believe that the risk to the attorneys is just not worth the price and it's already so interfered with the defense that unless there's a firm assurance of protection, particularly with another trial coming up, to go through this again would be impossible. We may not show up. I hope we will. My belief is that we ought to, and I'm prepared to.

CONAN: Three defense attorneys have been assassinated through the course of this trial. Given that, I know that you've said in the past this can't be a fair trial.

Mr. CLARK: Well, I think that's right. I mean, the trial's being conducted in a war zone. It's being conducted under all the pressures and excuses that war gives for wrongful conduct. The threats to the counsel and the obvious danger to counsel has been clear from the beginning and nothing's really been done. Their families have never received any protection.

The court, at least from December the 7th of last year, said it couldn't agree more that there ought to be relocations and families provided with enough to make out while their loved ones are trying these cases, and adequate protection for the lawyers in the interim. They offered them pistols at one time and offered to provide up to three guards, pay for them.

They never paid for any of the guards. They provided a few pistol permits, but when 20 men come in with automatic weapons, a pistol's only a danger to a person in possession of one.

CONAN: Yes. That aside, and of course that's a big that, but that aside, procedures in the court itself have they been fair, in your view?

Mr. CLARK: No. They've been a disaster, really. It's not easy, if you assume good faith. You've changed the chief judge three times. External pressures have been enormous. The case has been tried by a judge who comes from Halabja, which is most a famous Kurdish town for persecution and death during the administration of Saddam Hussein.

He had family members killed there and friends killed there, and he'd been twice sentenced to death by Baathist courts for opposition to the Baathist government, including the government of Saddam Hussein. Then the second conviction.

He's alleged to have said, and hasn't denied it - he hasn't denied any of these things - that night in 2004 on Iraqi TV he said you don't need a trial, you only need an execution, and he's been unwilling to hear any arguments.

He's told me time and time again you can make your argument later, but later never came. It's a mañana that has never arrived. So it's - the prosecution had, they call it an eight-month trial, but the prosecution took seven months at its leisure. The defense was jammed up into one month, May 15 to June 13, and trying to get witnesses in all the time.

Finally we had 27 witnesses testified and had a lot more we wanted, and the judge said if 27 witnesses can't prove the innocence of your client, 100 can't, which is a classic comment for human rights people to think about. There's no presumption of innocence and there's assumption that no witness has more to say than any other witnesses have to say.

That's the way it's gone all along. You can understand some frustration that the defendants have suffered because of that handling.

CONAN: Is - the chief defense lawyer told The New York Times that Saddam did order most of the executions at Dujail but had every right to do so. Is that the basis of the defense?

Mr. CLARK: He didn't order the executions in the sense that he just did that out of the blue. When you think about - this case is a serious mistake. They should never have brought this case. It probably isn't a case.

1982 was a very dangerous time in the Iran-Iraq war. Iran had pushed back into Iraqi territory from the initial surge of the Iraqis into Iran. Dujail is close to the border.

The Dawa Party, which is an Iranian party committed to overthrow the government of Saddam Hussein, of which the current prime minister of Iraq and the immediate past prime minister - Jaafari and Maliki are both members of the same Dawa party, which is the largest party in the present parliament and the largest Shia Party, and they were involved in this assassination attempt.

But it was two years, almost two years, it was 23 months from the time of the assassination attempt until the entry of a judgment of guilt and death - it was a mandatory death penalty for commission of treason in time of war and acts committed on behalf of the enemy, Iran.

So it was a mandatory sentence and it was nearly a year after that, after the case was reviewed by law professors and deans and judges in the peculiar fashion that they did it, that the recommendation was to enter an order. And the president, as a governor in this state, George Bush signed 154 death warrants while he was governor.

He signed them for minors and for women and for retarded people and for aliens in violation of the Vienna Convention on Diplomatic - he just signed them all. Saddam Hussein signed these 148 orders, but it was almost three years after the event. If this was real repression, you would have strung them up the first day.

CONAN: All right. One final question for you, Ramsey Clark, and that is about the tactics in the courtroom. I'm sure you know that they've come under severe criticism, defense tactics, as disrespectful, as disruptive.

Mr. CLARK: Well, there were plenty of disruptions. You know, I was a witness - supposed to be a witness - they took two days with me in the Chicago Seven trial, and my position on Bobby Seale was that he was just frantic because he couldn't have his lawyer. His conduct was caused by the conduct of the judge, and I think here, you either disrupt or you just sit there silently and wait to be hung.

CONAN: Ramsey Clark, thanks very much for being with us.

Mr. CLARK: Thank you.

CONAN: Have a good trip to Baghdad. Ramsey Clark, former U.S. attorney general, one of Saddam Hussein's trial lawyers joining us from his home in New York City. You're listening to TALK OF THE NATION from NPR News.

Michael Scharf is director of the International Law Center at Case Western Reserve University School of Law. He helped to train the Iraqi tribunal judges, he's an expert in international law, and he joins us now from the studios of member station WCPN in Cleveland. It's nice to talk to you again.

Mr. MICHAEL SCHARF (Director, International Law Center, Case Western Reserve University School of Law): Hi, Neal. Good to talk to you.

CONAN: This was a test run for this new court. You called the trial one of the messiest in history. Has it played out in anything close to what you had hoped?

Mr. SCHARF: Well, it has been one of the messiest trials and mostly because of the tactics of the defendants and the defense counsel. It was interesting to hear Ramsey Clark talk about the Chicago Seven trial, a trial that was, in American history, one of the messiest.

And what happens when you try to prosecute somebody who is not really interested in getting an acquittal but rather in just wrecking the process is that it creates enormous challenges for the judges. But at the end of the day, this case ended up being not about the witnesses, but about the documents that were admitted into evidence and that were acknowledged to be factual. And then Saddam Hussein himself, in his famous I'm responsible speech, acknowledged that these documents were true.

And ultimately, what the documents showed - and these documents, by the way, are posted on the Case Law School Web site for anybody took at - what they showed is that in 1982, Saddam was attacked in Dujail. Then he ordered the destruction of the town, including the buildings, the water, and the date palms. He ordered the rounding up of 300 civilians. 50 of those died in interrogation, and he gave medals of honor to the interrogators rather than to prosecute them.

Two years later, as Ramsey pointed out, he ordered 148 of those people tried en masse in a one-day trial, and then a couple of months later he ordered all 150 of them executed, including some 10-year-old children.

And the only argument in this case really is about the law. It's not about the facts. And that makes this case not as big a concern about fair trial. So what's really important is the closing argument - the very closing argument that Ramsey Clark says he may be boycotting - because that's where the defense is going to be able to argue that it is legal for a ruler to do the kinds of things Saddam did in response to terrorists and insurgents, and that's where the prosecutor's going to have to counter and say no, you acted disproportionately. And that's where the judges are going to have to decide the case.

CONAN: But can - getting back to another point that Ramsey Clark made, can it be a fair trial when three defense attorneys are assassinated?

Mr. SCHARF: It was a terrible tragedy that these three were assassinated, but the saddest part of it is that they were offered security. At first, they didn't trust the U.S. government in Iraq, so they said we don't want your security, and that's when the first two were assassinated in October.

A compromise was worked out so that they were given money - and Ramsey's wrong. They were given money, they were given arms. They could choose their own security guards, much like rock stars or other professional athletes can choose their entourage.

And since that time no one was assassinated in the entire trial, including the prosecutors, the witnesses and the judges, until just recently Mr. Obeidi, who, for some reason, didn't have any of his security guards with him the morning that he was attacked.

But, you know, there have been trials in other dangerous places around the world, including in Central and Latin America with drug lord cases, even in the United States we've had some trials undertaken in high-security issues. They are difficult and the key is that there have to be measures to protect all of the participants, including the defense counsel. Those measures are now in place. It's not really a good excuse not to show up for the closing arguments.

CONAN: The idea of the trial was that Saddam Hussein should be seen to be - have a fair trial. In retrospect, has it been seen that he had a fair trial?

Mr. SCHARF: Well, in some ways the judges actually bended over backwards to make it look like he had a fair trial, for example by letting him speak whenever he wanted to in the courtroom.

Ultimately, the defense was given 45 days to prepare their case before the trial began in the first extension. There were many other delays to give more time for the defense. The trial only lasted 35 trial days out of eight months. Of those, 20 days were for the prosecution, 15 for the defense, although most of the defense were compacted in a month and a half.

The number of witnesses were about even. And then ultimately, the defense refused to submit their witness lists and their testimony became cumulative and repetitive, and the judge said look, I'm going to take a page out of the Yugoslavi tribunal, the Rwanda tribunal, the Sierra Leone tribunal, and say if there's nothing new you can present, we're going to move to closing arguments. And that's not necessarily a sign that this was unfair.

CONAN: Michael Scharf, thanks very much.

Mr. SCHARF: Thank you.

CONAN: Michael Scharf, director of the International Law Center at Case Western Reserve University School of Law, with us from member station WCPN in Cleveland. Obviously more on the Saddam Hussein trial next week, and more on the crisis in the Middle East later today, on ALL THINGS CONSIDERED from NPR News.

I'm Neal Conan, this is TALK OF THE NATION from NPR News in Washington.

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National Public Radio "Morning Edition" interview with Professor Amos Guiora
(7/17/2006) - Guiora's comments on the situation in the Middle East will air on WCPN 90.3 FM at 6:20 a.m. and 7:50 a.m. Tuesday, July 18, 2006. Director of the Case School of Law Institute for Global Security Law & Policy, he will also be interviewed live at 6:30 a.m. by KQV Newsradio in Pittsburgh. He was also interviewed by the L.A. Times and The Forward (New York) newspapers.

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Law professor's casebook on counterterrorism first of its kind
(6/27/2006) - Professor Amos N. Guiora, director of the Institute for Global Security, Law and Policy, signed a contract with Aspen Publishers for the publication of, Global Perspectives on Counter Terrorism.The casebook, first of its kind in the field, analyzes and compares the legal, policy, operational and intelligence counterterrorism measures of the U.S., Israel, Spain, India and Russia.

The casebook is scheduled to be available in the Spring of 2008.

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Professor to address human rights and terrorism
(5/15/2006) -

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Sharona Hoffman named associate dean for academic affairs
(5/11/2006) - Gary Simson, who will begin as dean of the law school on July 1, has appointed Professor Sharona Hoffman to be the new associate dean for academic affairs at Case Western Reserve University School of Law. The post has been held by Hiram Chodosh, who will be leaving Case at the end of June to serve as dean of the S.J. Quinney College of Law at the University of Utah. Professor Hoffman's appointment becomes effective July 1, 2006. However, Professor Melvyn Durchslag will serve as interim associate dean for academic affairs during the 2006-2007 academic year. Professor Hoffman will take a leave from teaching in the fall and will be on sabbatical next spring.

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Outstanding scholarly article merits republishing
(4/27/2006) - An article written by cyberlaw professor Jacqueline Lipton will be republished in the Intellectual Property Law Review this year after being selected as one of the best intellectual property articles for 2005. The article, "Beyond Cybersquatting: Taking Domain Name Disputes Past Trademark Policy," first appeared in the Wake Forest Law Review (Vol. 40, 1361 (2005)).

Read the article.

View a list of other articles written by Professor Lipton.

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"Saddam Trial Disappoints Legal Experts"
(4/5/2006) -

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Law professor to comment on NPR/WCPN during President Bush's visit to Cleveland March 20
(3/17/2006) - Case professor Amos Guiora joins Dr. David Cohen of the University of Akron at noon on Monday, March 20 on 90.3 FM for live coverage of the President's speech at the City Club of Cleveland. Listen live here.

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Professor discusses capture of war criminal and genocide on national and international radio
(3/2/2006) - Case law professor Michael Scharf appeared on National Public Radio's "Weekend Edition" to discuss the imminent capture of most wanted Serb war criminal Ratko Mladic (listen here) and on Public Radio International's "BBC The World" to discuss the International Court of Justice Genocide case between Bosnia and Serbia (listen here, click on "Bosnia Interview").

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Dean's letter to the editor "China's Land Seizures" published in the New York Times
(1/24/2006) - In response to the January 17 article "Police in China Battle Villagers in Land Protest," Dean Gerald Korngold's letter to the editor (requires free registration) published on January 24 points out a lesson China could learn from American history where property rights led to economic growth and democracy. Korngold writes, "While there are clear historical, economic and cultural differences with China, the lesson of the American experience is worth remembering as the Chinese address issues of land ownership and government action."

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CNN latest to interview sought-after law professor about Saddam Hussein trial
(12/23/2005) - Professor Michael Scharf has appeared as an expert commentator about the Saddam Hussein trial on CNN, Fox News, C-SPAN, Court TV, and NPR. View a video clip of his recent interview with CNN American Morning anchor Soledad O'Brien here.

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Global Security Professor Guiora Op-Ed, "The Torture Rule Book," was published in LA Times this week
(11/18/2005) -

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Law professor announces he will run as a candidate for Ohio's 14th Congressional District
(11/11/2005) - Professor Lew Katz, John C. Hutchins professor, has announced that he will run in the Democratic primary, May 2, 2006, for the 14th congressional district of Ohio. Professor Katz, a longtime member of the faculty (since 1966), teaches both Criminal Law and Criminal Procedure and directs the Graduate Program for Foreign Students in U.S. Legal Studies. See additional information.

A specialist in criminal law whose primary interest is the Fourth Amendment, Mr. Katz was called an "expert in criminal law" by the New York Times. His books and articles have been cited in more than 200 cases and legal articles by numerous courts including the United States Supreme Court. He is the author of The Justice Imperative (1980), Know Your Rights (1993), and Ohio Arrest Search and Seizure (2002), and co-author of six other books: Justice Is the Crime (1972), New York Suppression Manual (1992), Ohio Felony Sentencing Law (2002), Ohio Criminal Justice (2003), Questions & Answers: Criminal Procedures (2003), and Baldwin's Ohio Practice: Criminal Law (2003).

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Case Law Professor Jonathan Adler discusses President Bush's nomination of Judge Samuel Alito to the Supreme Court on the Wall Street Journal's editorial page
(11/1/2005) -

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Professor Michael Scharf featured in American Society of International Law Webinar
(10/31/2005) - On October 27, 2005, the American Society of International Law hosted a "Webinar" entitled "The Saddam Hussein Trial on Trial" featuring Case Law Professor Michael Scharf. Click here to hear Professor Scharf's presentation and view his Power Point slides.

(Note: This Webinar requires the free WebEx plugin. If you don't have the plugin installed, you will be prompted with download and installation instructions. Further information is available from WebEx.)

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Tuesday morning NPR interview with Professors Scharf & Guiora
(10/10/2005) - October 11, 9-10 AM -- professors Michael Scharf and Amos Guiora will be interviewed on WCPN 90.3 FM about The Cleveland Principles, developed during "Torture & the War on Terror," the symposium held here last Friday. An editorial and article about the symposium appeared in the October 8, 2005 issue of the Cleveland Plain Dealer. Text of the articles is reproduced here.

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Dean Search Committee Formed
(10/7/2005) - Dean Gerald Korngold, who has served with great distinction as Dean of the Case School of Law since 1997, has announced that he will step down from the dean's position at the end of June 2006. On October 6, 2005, John L. Anderson, University Provost and Vice President announced the formation of the search committee for the new dean of the School of Law. The Committee will be chaired by Professor Sharona Hoffman. The other committee members from the law school are: Professor Jessica Berg, Assistant Professor Craig Boise, Professor Jonathan Entin, Aaron Golembiewski (law student), Professor Katherine Hessler, Professor Lew Katz, Professor Max Mehlman, Professor Craig Nard, and Associate Dean Sonia Winner. Also serving on the search committee are George Majoros of the University Board of Trustees and an alumnus of the law school, John Wheeler, a university Vice President and an alumnus of the law school, and May Wykle, Dean of the School of Nursing.

Applications and nominations should be sent to Professor Sharona Hoffman by December 1, 2005, at the following address:

Professor Sharona Hoffman
Chair, Dean Search Committee
Case Western Reserve University
School of Law
11075 East Blvd.
Cleveland, OH 44106

For more information, see the job description and application procedure.

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Case Law Professor Michael Scharf is profiled in this month's "Continental In Flight" Magazine
(10/4/2005) - The magazine is available on all Continental Airline flights during the month of October. Click here for the story and photos.

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Case Law Professor Michael Scharf is Featured Expert in a Fox News special, "Saddam Hussein on Trial," to air nationally on Saturday October 1, at 9:00 PM
(9/30/2005) - On Saturday October 1, at 9:00 PM, Case Law Professor Michael Scharf will appear as the featured expert in the Fox News Special, "Saddam Hussein on Trial." Professor Scharf, who is Director of the Law School's Frederick K. Cox International Law Center, helped train the Iraqi Judges who will preside over the Saddam Hussein Trial and heads the Iraqi Special Tribunal's Academic Consortium. He was nominated last spring for the 2005 Nobel Peace Prize for the work he and his students at Case have done to assist in the prosecution of major war criminals, including Saddam Hussein and Slobodan Milosevic. To help students, professors, journalists, and the public keep abreast of and understand developments related to the Saddam Hussein Trial, the Cox Center recently launched the Saddam Hussein Trial Blog and Interactive Website. The new website features the key documents related to the Iraqi Special Tribunal (IST), answers to frequently asked questions, and expert debate and public commentary on the major issues and developments related to the trials of Saddam and other former Iraqi leaders.

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Professor Amos Guiora quoted in Los Angeles Times
(8/23/2005) - Professor Amos Guiora was quoted in the August 21st Los Angeles Times regarding the rocket attacks on US Navy ships in the Jordanian port of Aqaba.
Full text of the article.

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Professor Paul Giannelli receives 2005 OSBA Legal Education Committee Award
(5/11/2005) - During the Ohio State Bar Association Annual Convention, the OSBA Legal Education Committee will honor Professor Paul C. Giannelli of the Case Western Reserve University School of Law as the recipient of the 2005 OSBA Legal Education Committee Award. This award is given to the law professor who has contributed most to Ohio law and the Ohio bar.

Professor Paul Giannelli is the Albert J. Weatherhead III and Richard W. Weatherhead Professor of Law at Case Western Reserve School of law, where he has been a member of the faculty since 1975. He received his Juris Doctor and Master of Law degree from the University of Virginia, Master of Science in Forensic Science from George Washington University, and Bachelor of Arts from Providence College. He was also a fellow in the forensic medicine program of the Armed Forces Institute of Pathology in Washington, D.C.

Professor Giannelli lectures and writes extensively on a variety of legal topics including evidence, juvenile law and criminal issues. For 20 years, he authored articles for Public Defender Reporter, a quarterly publication of the Cuyahoga County Public Defenders Office.

Professor Giannelli has served as special counsel to the Joint Select Evidence Committee of the Ohio General Assembly, as member of the Supreme Court of Ohio Rules Advisory Committee, and as counsel for the Rules of Evidence to the Supreme Court of Ohio Rules Advisory Committee. He authored two working papers for the Joint Select Evidence Committee of the Ohio General Assembly on the authority of the Supreme Court of Ohio to Prescribe Rules of Evidence. He has also prepared a report for the Ohio Department of Rehabilitation and Corrections on the due process rights of prisoners.

In the early 2000s, Professor Giannelli s expertise on scientific evidence was highlighted during the Sam Sheppard case. He authored a law review article for the Sam Sheppard case symposium in the Cleveland State University Law Review, lectured for symposiums and CLE courses, and was interviewed on television and radio.

Professor Giannelli authors and co-authors a number of legal publications including Baldwin s Ohio Practice, Criminal Law, Ohio Criminal Justice, Ohio Evidence Manual and Ohio Juvenile Law.

Professor Giannelli is recognized for his expertise by the judiciary, his peers and the public, said Candace Hatton of Thompson West in her nomination of Professor Giannelli. Professor Giannelli continually demonstrates his dedication to the legal community of Ohio and maintains a high level of interaction with the practicing bar, she continues.

In 2004, Professor Giannelli was inducted into the Society of Benchers, an honorary alumni association at the Case Western Reserve University School of law, comprised of distinguished alumni, faculty and non-alumni members. His work has been cited in hundreds of court opinions, including decisions of the U.S. Supreme Court.

Professor Giannelli is admitted to practice in the United States Supreme Court, Supreme Court of Ohio, Virginia Court of Appeals, and United States Court of Appeals for the Armed Forces. He is a member of the Ohio State Bar Association, the American Bar Association, and American Association for the Advancement of Science, and is a fellow in the American Academy of Forensic Sciences.

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Report Co-Authored By Professor Michael Scharf Recommends Changes In U.N. Human Rights Commission
(4/19/2005) - Report Calls for Strengthening Focus on Human Rights Violations

A report co-authored by a Case Western Reserve University School of Law professor contains a detailed blueprint for implementing the United Nations Secretary General's recent proposal to replace the U.N. Commission on Human Rights with a smaller, standing Human Rights Council.

The 27-page report was released April 15 at the American Bar Association's (ABA) spring meeting in Washington, D.C. in conjunction with the showcase panel, "Reforming the UN Human Rights Commission." The panel featured presentations by U.S. Representative Tom Lantos, former Assistant Secretary of State for Human Rights Richard Schifter, and Michael Scharf, professor at the Case School of Law and director of its Cox International Law Center.

The report is the product of the ABA's Task Force on Reform of the U.N. Human Rights Commission, chaired by David Birenbaum, former U.S. Ambassador to the U.N. for Management and Reform. Citing the Commission's record in recent years of failing to condemn genocide in Sudan and electing Libya as chair, the report concludes that the Commission "has failed to fulfill its mission to promote and protect human rights." The main reason for this, it says, is "the increasingly politicized nature of the Commission, which has severely compromised the capacity of the Commission to take action in response to serious human rights violations."

The task force's report was written by its co-Rapporteurs: Scharf and Paul Williams, professor at American University's Washington College of Law. Students in both law schools conducted much of the research that went into the report.

The report concludes that the only way to ensure the proposed Human Rights Council's effectiveness is for the United States and other nations committed to supporting human rights to "treat the Council with a seriousness of purpose and commitment at least equal to that of the Member States whose agenda has been to prevent the Human Rights Commission from doing its job of protecting human rights."

Among the reports specific recommendations are:

• The Council should concentrate on the most fundamental, legally-enforceable human rights, and work to focus world attention on conflicts that may result in ethnic cleansing, genocide, or other mass violations of human rights.
• The United States and its allies should build a coalition of democratic states from various regional groups that will act in concert to pass key resolutions in the Council.
• No state being sanctioned by the Security Council should be eligible for membership on the Human Rights Council until the sanctions are lifted.
• The Council's member countries should be required to adopt a code of conduct committing them to honor their obligations under human rights treaties to which they are party and to cooperate in the investigations of the Council. Countries violating the code would be disqualified from future membership in the Council.

One of the underlying problems with the existing Human Rights Commission, Scharf explained, is that its members (which currently include China, Congo, Cuba, Libya, Sudan, and Zimbabwe) are frequently among the worst violators of human rights. Their membership enables them to block the Commission from examining their human rights records.

"The only real power the Commission has is to 'name and shame,' Scharf said. "So if the Commission can't even discuss a particular country's record in regard to human rights, then it is truly powerless."

Another problem with the Commission is its constant focus on Israel's human rights record, often to the exclusion of nations with far worse records. "The preoccupation with Israel severely detracts from the Commission's credibility," Scharf said.

The ABA's Section of International Law adopted the report last month. It will be referred to the association's House of Delegates at its next general meeting in August for final approval. The report is also being shared with the U.S. State Department, foreign bar associations, and United Nations members and staff.

Scharf is a former attorney-adviser for United Nations Affairs at the U.S. Department of State, and a former delegate to the United Nations Human Rights Commission. He and Williams co-founded the Public International Law and Policy Group, for which the two men have been nominated for the 2005 Nobel Peace Prize.

Case law students Nicole Dorsky, Sarah Blake, and Leslie Murray participated in researching and writing the report.

Read the text of the report

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Associate Dean Chodosh publishes new book on Global Justice Reform
(1/18/2005) - Hiram Chodosh, the Joseph C. Hostetler - Baker & Hostetler Professor of Law and Associate Dean for Academic Affairs, has just published Global Justice Reform: A Comparative Methodology with NYU Press (2005). Here's what leading scholars have said about the book:

The subject of Global Justice Reform could hardly be more important, or the author better equipped to address it. Integrating his theoretical work on comparative law with his extensive, on-the-ground experience with legal systems in India, Indonesia, the Mideast, and other developing areas, Hiram Chodosh provides a constructive program for clear thinking about the vital task of judicial reform throughout our shrinking world."
— Peter H. Schuck, Simeon E. Baldwin Professor of Law, Yale University

"Chodosh provides the compass to help us navigate the treacherous shoals of comparative law reform. Using insights gleaned from his expertise on both India and Indonesia, he proves the search for global justice is well worth the risk."
— Adrien Katherine Wing, Bessie Dutton Murray Professor of Law,University of Iowa

"Global Justice Reform closes the gap between the grand designs of transitional restructuring espoused by the Washington Consensus and the reality of weak legal institutions in much of the developing world. It gives an edge to the comparative method by linking its mission to the most fundamental problems facing legal systems."
— Paul B. Stephan, Lewis F. Powell, Jr. Professor of Law, University of Virginia School of Law

For more information, please click here.

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Professor Michael Scharf selected to train Iraqi Special Tribunal Judges
(12/28/2004) - Professor Michael Scharf, Director of the Frederick K. Cox International Law Center, was one of five international experts selected to train the Iraqi Special Tribunal Judges who will be presiding over the trial of Saddam Hussein. His editorial, "Can Saddam Get a Fair Trial?" appeared in the Outlook Section of the Washington Post on December 19: http://www.washingtonpost.com/wp-dyn/articles/A9481-2004Dec17.html.

For the follow-up Washington Post Live On-Line Chat see: http://discuss.washingtonpost.com/wp-srv/zforum/04/opinion_outlook122004.htm.

For an Associated Press story about Professor Scharf's work with the Iraqi Special Tribunal, see: http://www.allheadlinenews.com/cgi-bin/news/newsbrief.plx?id=1101588338&fa=1.

Professor Scharf has recently appeared in dozens of national tv and radio news programs to discuss the upcoming trial. For a tape of his appearance on NPR's Morning Edition, click on: http://www.npr.org/templates/story/story.php?storyId=4228885&sourceCode=RSS.

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Associate Dean Hiram Chodosh conducts a Constitutional Law workshop with Iraqi academics.
(8/5/2004) - Hiram E. Chodosh, Associate Dean for Academic Affairs at the School of Law, became the Joseph C. Hostetler-Baker & Hostetler Professor of Law just as he embarked on a legal education mission to Siracusa, Italy, to assist Iraqi legal experts in their country's transition to a constitutional democracy.

In July, he traveled to Italy, where he joined 45 Iraqi anthropology, political science and law professors to discuss constitutional design and process for Iraq held at the International Institute for the Higher Study of Criminal Sciences.

The legal academics and intellectuals ranged from junior to senior faculty members and were from various ethnic groups and disciplines throughout the country. Hamid Hannoun and Latif Komany of Baghdad University served as chairs for the dialogue, with an Egyptian judge serving as moderator.

Associate Dean Chodosh was asked to draw up a series of presentations on constitutional design questions that would help to inform the major choices to be made by the Iraqis in the creation of a new constitution for the country. Other prominent experts, including William Schabas from Galway University (human rights) and Kenneth Abbott from Northwestern University (international economic law) addressed critical issues in the Iraqi transition. Associate Dean Chodosh was invited by the International Institute of Higher Studies at DePaul University, which has a $3.5 million USAID grant to provide assistance on Iraqi legal education.

Associate Dean Chodosh's presentations covered a broad range of comparative experiences, from federal systems in Germany and Nigeria, to the separation of powers in France and the United States, to the role of Islam and Shari'a in Turkey and Indonesia.

Given the breadth of topics and the political dynamics of U.S. assistance, Associate Dean Chodosh said that he knew from his academic work with countries around the world that his first objective was to stimulate discussion and cultivate full participation. With the use of parables and the suggestion that the session begin with questions, the session grew lively, he said. Several participants reflected that this was the first time they had ever been asked to start a session with their own questions.

The queries from the Iraqis provided a context for the subsequent presentations and interactions. Associate Dean Chodosh was able to engage the group in a discussion of the aims and scope of a constitution, the alternative ways of allocating and limiting power, the qualifications on fundamental rights, the protections of minority groups and amendment procedures. The Iraqi group had expressed particular interest in implementation and enforcement, prompting him to draw on his expertise in comparative judicial institutions, their increasingly critical role, common performance problems and reform strategies.

The workshop in Italy was among the 100 presentations he has made worldwide on his expertise in international law. "Professor Chodosh has a distinguished record of publications, teaching and service and is a leading new voice in the area of international law reform and international administration of justice," said Gerald Korngold, McCurdy Professor and Dean of the Case School of Law.

Associate Dean Chodosh's appointment to the Hostetler chair was approved by the Case Board of Trustees at a recent meeting. He will hold the professorship for the next five years.

Originally known as the Joseph C. Hostetler-Baker & Hostetler Professorship in Trial Practice and Advocacy, the chair was established in 1974 with a gift from Hazel P. Hostetler in memory of her husband, Joseph C. Hostetler, a founder and principal partner in the well-known Cleveland law firm of Baker, Hostetler & Patterson.

The board resolution described Associate Dean Chodosh as "an excellent teacher in international law, conflict of laws and related fields who inspires his students." It went on to say that Associate Dean Chodosh has been "a creative and driving force behind many of the law school's recent academic innovations." As an expert in the reform of legal systems and international conflict resolution, Associate Dean Chodosh has conducted research and written extensively on judicial reform issues, advised several foreign courts systems (mainly in Asia and the Middle East), and served as an adviser to the International Monetary Fund's legal department.

He earned his bachelor's of art degree with honors in history from Wesleyan University in Connecticut in 1985 and his law degree from Yale Law School in 1990. In 1993, he joined the Case faculty, became an associate professor in 1996 and advanced to full professor in 1999. From 1998 to 2003, the year he was appointed associate Associate Dean, he directed the Frederick K. Cox International Law Center at the Case.

Associate Dean Chodosh served as a Fulbright Senior Scholar in India, where he the book, Mediation in India: A Toolkit, published by Fulbright last spring, and has a forthcoming book this year called Global Justice Reform: A Comparative Methodology (NYU Press).

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Professor Mehlman's article, "An assist from drugs?" appeared in the Philadelphia Inquirer
(6/30/2004) -

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Case Law Professors Help Iraq Train NDW Iraqi Judiciary
(5/18/2004) -

Forty-eight defense attorneys from Iraq risked their lives as they traveled by twos in unmarked cars as protection against sniper fire along the war-torn route to Baghdad's airport to reach their flight to the United Arab Emirate of Dubai.

At the end of their journey, they were met by Melissa Waters, a visiting professor at Case Western Reserve University's School of Law and acting director of Case's Frederick K. Cox International Law Center's War Crimes Research Office. Waters-along with five other international law experts from Canada, Ireland, Scotland, Egypt and the United States-had traveled to Dubai to give these Iraqis, who had practiced law during Saddam Hussein's regime, a crash course on international human rights law.

The human rights course was the second in a series of training sessions, sponsored by the International Legal Assistance Consortium. Michael Scharf, ILAC co-founder and Case professor of law, ILAC's mission is to assist governments in resurrecting their judicial systems and ensuring accountability for atrocities in the aftermath of armed conflicts or political transitions.

Scharf and Mark Ellis, executive director of the International Bar Association, founded the non governmental organization in 2000. It has provided assistance to the nations of Afghanistan, Liberia and East Timor. ILAC receives financial support from the governments of Sweden, Ireland and the United Kingdom. The research arm of ILAC is located in the Frederick K. Cox International Center at the Case School of Law.

Earlier this year, Scharf and other members of the ILAC Board of Directors met in Cairo to develop the human rights training program and manuals for Iraq. The first training session for the judges and prosecutors was held in Dubai in March. The goal of the program is to assist the Iraqi people in making the transition from the old regime to a democratic government that respects the human rights of its citizens.

ILAC plans to hold a dozen training sessions over the next months. Eventually some of the Iraqi lawyers participating in the training sessions will form a group of trainers, who will continue the task of educating the Iraqi legal community about human rights and due process protections.

Scharf, the Cox Center director, will train Iraqi legal professionals in June. Case law professors Jessie Hills and Chip Carter also will participate in future training sessions for the Iraqis.

"It was a life-changing experience," said Waters, who spent April 24-May 1 teaching the Iraqi defense lawyers about basic human rights enjoyed by criminal defendants, such as the right to remain silence, the right to have an attorney and right to protection against torture. The course also addressed key international human rights treaties-the International Covenant on Civil and Political Rights; the Covenant on Economic, Social and Cultural Rights; and the Convention against Torture.

Waters described her days in Dubai as having a window onto Iraq and an outsider's view of her own country.

She spent the week listening to the lawyer's stories of life under Saddam Hussein and under the Coalition Provisional Authority and answering their many questions about American polities in Iraq and the Middle East.

"We had so much to learn from them about the importance of human rights," said Waters.

She described how some participants bore visible scars from the torture that they had suffered under Hussein. One lawyer recounted how he fled Iraq, only to be forced to return several months later when the regime threatened to murder his brother. One of the approximately 10 female lawyers told Waters that the principal at her son's school had demanded that she and her husband register their son in the Baath Party, telling them that if they did not do so, the entire family would be arrested.

Waters added that she emphasized to the Iraqi lawyers that they come from a great historical legal tradition.

"What most people do not know about Iraq is that it is the birthplace of codified law, a legal system used by much of Europe and most of the world," said Waters. Iraq also was one of the founding members of the United Nations and is one of the signers of the Universal Declaration of Human Rights, as well as several major international human rights treaties.

Waters said that she acknowledged to the group that she cannot begin to understand the oppression that they experienced under Hussein, but that she and other international lawyers were eager to help Iraq emerge from this period and rebuild a strong legal system.

At the same time, Waters said that she and other trainers emphasized that the building of a democratic society in Iraq must begin at the grass roots level, and that Iraq's lawyers and judges must play a key role in ensuring that democratic values and human rights take hold in Iraqi society.

Waters said it took some time for the Iraqi lawyers to decide to trust her and the other trainers-initially leery that they were agents for the American and British governments.

As conversations became more frank, many of the Iraqis also shared their frustrations with life in Iraq today under the Coalition Provisional Authority. They told her that while Iraqis initially welcomed America's liberation of the country, their views of Americans had begun to change as they lived through what they described as "daily humiliations" by the CPA. Many of the lawyers complained that under the CPA, Iraqis do not enjoy many of the rights that they had been learning about over the course of the week.

"At first I took some of these complaints with a grain of salt," Waters said.

But on her last day in Dubai, the news broke that terrible incidents of prisoner abuse by Americans had taken place at Abu Ghraib Prison. "I was absolutely devastated, and I just wept," Waters said. She was struck by the fact that some of the prisoners in the photographs could have been any one of these lawyers, innocently swept up in a military raid in their neighborhoods.

"That last day, I did not want to face them," said Waters. "As an American, in that moment, what credibility did I have to teach the Iraqis anything about human rights?"

Just before returning to the United States, she encountered an elderly Iraqi lawyer who had become a friend over the course of the week, "I have learned much this week," the Iraqi told her. "Governments-the Iraqi government, the American government-all do bad things to people. But I have learned that American people and Iraqi people are different-we are not our governments."

Called "Miss Melissia" by the group, Waters said over the course of the week she could begin to see how the concept of democracy had started to take shape for these lawyers.

"I spent a lot of time thinking about what makes America different from countries like Iraq," said Waters. "The answer is our tremendously strong human rights and civil rights tradition that is so well-entrenched in the U.S. Constitution."

Waters said that her week with the Iraqi lawyers impressed upon her how precious human rights are, how fortunate Americans are to enjoy these rights, and how easily these rights can be lost.

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Professor Jonathan Adler wins prestigious award
(2/26/2004) - Jonathan H. Adler, Assistant Professor of Law, has been named the recipient of the Paul M. Bator Award. Created in 1989, the Paul M. Bator award was established in memory of University of Chicago Law School Professor Paul M. Bator and his lifetime of achievement. The award is given annually by the Federalist Society to a young academic (under 40) whose life, work and ideals most closely embody the life, work and ideals of the late Paul Bator. Recipients are to have demonstrated excellence in legal scholarship, a commitment to teaching, and a concern for students, and have made a significant public impact.

Professor Adler was nominated for the award for making significant contributions to legal scholarship in the intersection of environmental and constitutional law. Previous award winners include such prestigious academics as Stephen Carter (Yale), Randy Barnett (Boston University), Akhil Amar (Yale), Robert George (Princeton), Eugene Volokh (UCLA) and John Yoo (Chicago).

Professor Adler joined the faculty at Case School of Law in 2001. His writing focuses primarily on environmental and regulatory policy issues. He is the author or editor of three books, over ten scholarly articles, and over 100 op-eds and articles in other publications, ranging from Environmental Law and Supreme Court Economic Review to The Wall Street Journal and The Washington Post. He is a contributing editor to National Review Online and a regular commentator on environmental and regulatory policy on television and radio. Professor Adler teaches Constitutional Law for first-year law students as well as several environmental law courses.

Professor Adler received his B.A. from Yale University and was graduated summa cum laude from the George Mason University’s School of Law in May 2000 as valedictorian. He then clerked for the Honorable David Sentelle on the U.S. Court of Appeals for the District of Columbia Circuit.

While attending law school at George Mason University, Prof. Adler was director of environmental programs at the Competitive Enterprise Institute, where he wrote and supervised the production of important work on market-oriented environmental policy as well as on confining the growth of the national government to constitutional boundaries. He continued this work while in law school and it has been a theme of his scholarship since.

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Professor Michael Scharf appears on CNN's "360 with Anderson Cooper"
(12/23/2003) - Sunday, December 14, 2003, Professor Michael Scharf appeared on the CNN show "360 with Anderson Cooper" to talk about the possibility of trying Saddam Hussein and was on CNN again on Monday, December 15, 2003. He was scheduled to go on the Fox news channel and NPR on Tuesday, December 16, 2003.

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Professor Michael Scharf quoted in AP story
(12/23/2003) - Professor Michael Scharf was quoted in an AP story on the testimony of presidential candidate Wesley Clark at Slobodan Milosevic's war crimes trial. See www.cbsnews.com/stories/2003/12/15/world/main588586.shtml

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Professor Michael Scharf appears on NPR discussing current war crimes trials
(12/23/2003) - Professor Michael Scharf, Director of the Cox International Law Center, was the featured speaker on National Public Radio's Day to Day with Alex Chadwick. Professor Scharf addressed the issue of how the war crimes trial of Slobodan Milosevic may affect a future trial of former Iraqi president Saddam Hussein. Hear the interview at www.npr.org/rundowns/segment.php?wfId=1550368

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Professor Henry King interviewed in the Philadelphia Inquirer
(12/23/2003) - Professor Henry King was interviewed recently by the Philadelphia Inquirer to discuss comparisons between a possible Saddam trial and the Nuremberg War Crimes Tribunal. Professor Henry King was the youngest prosecutor at the Nuremberg War Crimes Tribunal.

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Professor Jonathan Adler appears on Fox TV
(12/23/2003) - On Friday, December 12, 2003, Assistant Professor Jonathan Adler appeared on the "Hannity & Colmes" show on Fox TV to discuss the Bush Administration's environmental record.

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Prof Kostritsky participates in conference
(8/25/2003) - Professor Juliet P. Kostritsky will be participating in a symposium on Contracts. The symposium is sponsored jointly by the John M. Olin Center for Law and Economics at the University of Michigan Law School, The Contracts Enrichment Fund at the University of Wisconsin Law School and the Wisconsin Law Review. The Symposium will be entitled Freedom from Contract and will be held in Madison, Wisconsin in February, 2004. Her paper will be published in the Wisconsin Law Review in the Spring of 2004.

The other participants include:

• Professors Ian Ayres (Yale);
• Omri Ben-Shahar (Michigan);
• Lisa Bernstein (University of Chicago);
• Mel Eisenberg (Berkeley);
• Clayton Gillette (NYU);
• Juliet Kostritsky (CWRU);
• Roy Kreitner; Stewart Macaulay (University of Wisconsin);
• Todd Rakoff (Harvard);
• Bob Scott (with Paul Stephan) (University of Virginia) and
• James J. White (University of Michigan).

More information can be found on the conference page.

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Law professors say "Health Courts" offer big financial burdens and loss of patient rights
(10/8/2007) - Ill-conceived, bureaucratic proposal is "bad public policy," they say

CLEVELAND -- A groundbreaking new report, prepared by Case Western Reserve University professors Maxwell Mehlman and Dale Nance, criticizes recent proposals for the creation of special "health courts" for the adjudication of medical malpractice claims.

According to Mehlman and Nance, proposals to create such health courts are the latest in a series of attempts to eliminate or drastically reduce the rights of injured patients. The proposals are based on unfounded claims that the existing medical malpractice litigation system is broken and spinning out of control, when in fact that system is quite stable and works remarkably well.

The new report, prepared under a grant from the American Association for Justice Robert L. Habush Endowment and presented at a Washington, D.C., congressional briefing last week, finds that health courts would require the creation of new and costly bureaucracies that would be biased against patients at every level.

In the report, Mehlman, the Arthur E. Petersilge Professor of Law and director of the Law-Medicine Center at the School of Law and professor of bioethics at the School of Medicine, and Nance, professor of law, find many critical flaws in the health courts concept, including:

• Injured patients would be forced into the new health court bureaucracies.
• Many valid claims would be arbitrarily limited or barred altogether.
• Patients who did recover would be severely under-compensated.
• Wrongdoers would not be held accountable, and the deterrent effect of the civil justice system would be reduced.
• Health courts, even if they worked as proponents suggest, would not be affordable without substantial increases in doctors' malpractice premiums or shifts of costs onto taxpayers and the employers and employees who pay for health care insurance.

The authors conclude that the health courts concept is misguided and encourage proponents to abandon it as "bad public policy."

For more information, see the full Executive Summary

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Race-based medicine holds potential threats to treatment, says law professor
(6/12/2006) - Physicians and Scientists Should Focus on Objectively Definable Attributes of Patients Rather than Race

CLEVELAND -- In June 2005 the Federal Food and Drug Administration announced it had approved the use of BiDil, a heart failure medication designed exclusively for treating African-Americans. That decision may have been the first step towards an era of "race-based" medicine, treatments targeted at particular races or ethnic groups. But a growing number of legal scholars and bioethicists, including Professor Sharona Hoffman of the Case Western Reserve University School of Law, believe that race-based medicine is an inappropriate and dangerous approach to treating disease.

Writing in the American University Law Review Hoffman, who is co-director of the Law-Medicine Center at Case School of Law and a professor of law and bioethics, notes that race is an elusive concept with no reliable definition in medical science, and therefore is not an appropriate basis for medical treatment. It is also not a genetically valid concept. The map of the human genome has demonstrated that 99.9% of human genes are identical in all individuals and that no genetic variation is found in all members of one race but not in members of other races.

Moreover, Hoffman asserts, "racial profiling" in medicine could potentially be harmful to public health and welfare.

"A focus on 'race' can lead to medical mistakes if the doctor misjudges the patient's ancestral identity or fails to recall that a particular condition affects several vulnerable groups and not just one 'race,'" she said. "The phenomenon can also lead to stigmatization and discrimination if the public perceives certain 'races' as more diseased or more difficult to treat than others."

In addition, race-based medicine may also violate a variety of federal and state anti-discrimination laws and regulations, Hoffman says.

Rather than focusing on race, Hoffman believes scientists and physicians should devote their attention to "attribute-based" medical research and treatment mechanisms that are objectively definable. Relevant attributes would include specific genetic alterations that might influence the course of a disease or an individual's vulnerability to it, socioeconomic status, diet, exercise, stress level, exposure to toxins, and cultural and religions barriers to treatment.

"Ideally, the practice of medicine will become increasingly individualized, with physicians examining patients for multiple variables that will determine which therapy should be prescribed," Hoffman wrote.

Hoffman notes that while attribute-based medicine holds promise for improving human health, it too can lead to medical mistakes, stigmatization, and other dangers. Consequently she recommends various measures to guard against the risks of attribute-based medicine. First, according to Hoffman, scientific and institutional review boards must pay special attention to population-specific protocols in order to ensure that selection criteria are justified by scientific data.

She also emphasizes the importance of educating health care providers concerning the variables that actually influence disease vulnerability and treatment response, and of public discussion about the development of attribute-based medicine.

"It is only with careful thought and appropriate precautions that attribute-based medicine can become an approach that enhances treatment opportunities for all human beings and contributes significantly to public health and welfare," she concluded.

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Gary J. Simson named dean of Case School of Law
(5/1/2006) - CLEVELAND - Case Western Reserve University has named Gary J. Simson, professor at Cornell University Law School, to be dean of the Case School of Law.

He succeeds Gerald Korngold, who will step down June 30.

Simson has been a member of the Cornell law faculty since 1980, where he has also served as associate dean for academic affairs and associate dean for faculty development. In those positions he has been responsible for curricular planning and development, faculty course assignments, coordinating the mentoring of untenured faculty, and spearheading efforts to diversify the law school's faculty.

"We are delighted to have found someone of Professor Simson's caliber to assume the deanship of the law school," said Case President Edward M. Hundert, M.D. "As a renowned legal scholar and outstanding teacher, he is the right person to lead the law school as it continues on the path towards growth and enhanced stature." Simson's appointment follows a national search, which began in the fall of 2005.

"I am very grateful for the opportunity to be dean of the law school at Case," said Simson. "It is a wonderful school, with outstanding faculty, administrators, and students and highly successful and supportive alumni. With his many accomplishments over the past nine years, the outgoing dean, Gerald Korngold, has set the bar high for those who follow, and I look forward to working with the law school community and the university administration to make the law school even stronger."

While at Cornell Simson has taught courses on conflict of laws and constitutional law, as well as a seminar on the First Amendment's religion clauses and a religious liberty clinic. He is the author of a leading conflict of laws casebook and numerous scholarly articles. "Gary Simson is a first-rate scholar and teacher who brings additional luster to Case Western's law school." said Russell K. Osgood, president of Grinnell College and former dean of Cornell Law School. "In the 30-plus years that I have known him he has been a proponent of reasonable and intelligent discourse, diversity, and thoughtful constitutional law scholarship. He is also a warm and supportive teacher and colleague."

"Professor Simson has been a beloved member of the Cornell Law School faculty for over 25 years," said Stewart J. Schwab, the Allan R. Tessler Dean & Professor of Law at Cornell Law School. "We will miss his fine teaching and provocative scholarship. On behalf of everyone at Cornell, I congratulate him and wish him and his family all the best in this exciting next stage of their careers and lives."

Before joining Cornell's faculty Simson was a professor at the University of Texas School of Law. Prior to that he clerked for Judge J. Joseph Smith of the U.S. Court of Appeals for the Second Circuit. He has also held a visiting appointment at the University of California-Berkeley Boalt Hall School of Law.

Korngold has served as law school dean since 1997 and has been a member of the faculty since 1987. Under his leadership the school has experienced significant growth and curricular innovation, including the introduction of more than 130 new courses in emerging areas of the law, a 130% increase in student applications, and completion of a $26.4 million fundraising campaign. Korngold will go on sabbatical during the 2006-07 academic year, then return to full-time teaching.

Simson is a graduate of Yale Law School, where he was an editor of the Yale Law Journal and was awarded the Colby Townsend Memorial Prize; and a Phi Beta Kappa graduate of Yale College. He chairs the advisory board of the Carolina Academic Press's Law Casebook Series, and is a member of the Legal Advisory Panel of the National Center for Science Education. He and his wife, Rosalind, are parents of Nathaniel, 21; and Jennie Anne, 14. Rosalind, an associate professor of philosophy at Hobart and William Smith Colleges in Geneva, New York, will be joining the faculty at Case Western Reserve University.

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Professor Sharona Hoffman first law professor to receive award honoring women's scholarship
(11/29/2005) - One Faculty Member from Each Graduate and Professional School to Receive $250 Prize and Certificate

CLEVELAND - - Eight women faculty members at Case Western Reserve University will be honored for their excellence in research and scholarship at the first annual Spotlight Series Awards for Women's Scholarship during a reception Thursday, December 1 from 4:30-6 p.m. in the 1914 Room of the Thwing Center, 11111 Euclid Avenue, Cleveland.

The honorees, representing each of the university's graduate and professional schools, will receive a certificate and a $250 prize. The event is funded by the Mather Centennial Celebration endowment, which the Flora Stone Mather Alumnae Association gave to the university in 1989. Flora Stone Mather College for Women was one of Case's predecessor institutions.

Dorothy Miller, director of the Flora Stone Mather Center for Women, said the center has been fulfilling the endowment's purpose of highlighting the research of university women via a yearly lecture series at which women faculty discuss their work. "This year we decided to take spotlights to a higher level by adding a monetary prize for scholarship, in addition to the lecture series," she said. "We asked the schools to select an outstanding woman researcher, with no criteria except that the prize should be based on scholarly or creative work." Winners were chosen by school deans.

This year's honorees are:

• Kathleen Farkas, associate professor in the Mandel School of Applied Social Sciences
• Marion Good, professor in the Frances Payne Bolton School of Nursing
• Yiping Weng Han, associate professor of biological sciences in the School of Dental Medicine
• Anne Hiltner, the Herbert Henry Dow Professor of Macromolecular Science and Engineering in the School of Engineering
• Sharona Hoffman, professor of law and associate director of the Law-Medicine Center in the School of Law, and professor of bioethics in the School of Medicine
• Kathleen Kash, professor of physics in the College of Arts and Sciences
• Lisa M. Maillart, assistant professor of operations in the Weatherhead School of Management
• Patricia Marshall, associate professor of bioethics in the School of Medicine

Presenting the awards with Miller will be Robert Savinell, dean and George S. Dively Professor of Engineering in the School of Engineering; Mark Turner, dean and professor of cognitive science in the College of Arts and Sciences; May Wykle, dean and Florence Cellar Professor of Nursing in the Frances Payne Bolton School of Nursing; Daniel Anker, associate dean for faculty affairs and human resources in the School of Medicine; Gary Previts, associate dean in the Weatherhead School of Management; Sarah S. Andrews, assistant dean for academic affairs at the Mandel School of Applied Social Sciences, and Maxwell J. Mehlman, the Arthur E. Petersilge Professor and director of the Law-Medicine Center in the School of Law and professor of bioethics in the School of Medicine.

For more information contact Dorothy Miller director of the Flora Stone Mather Center for Women, 368-0985 or e-mail Dorothy.Miller@case.edu

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After eight years at the helm, Dean Korngold announces plans to step down as Dean and return to teaching
(9/13/2005) - CLEVELAND - - Gerald Korngold, dean and McCurdy Professor at the Case Western Reserve University School of Law, as he embarks on his ninth year of outstanding service to the University, has decided to step down from the dean's position June 30, 2006. He will remain on the school's faculty. "Serving as dean has been an extraordinary honor and joy during this time of great growth and achievement at our law school" said Korngold. "I am deeply grateful to the law school's superb faculty, staff, and student body, as well as our outstanding alumni and friends, who have made it possible for us to accomplish so much over the years."

Korngold was named dean in 1997, having joined the law school's faculty 10 years earlier. The law school has seen a significant increase in average LSAT and undergraduate GPA scores of entering students. The law school also completed a $25 million fundraising campaign -- including a $2 million gift to renovate the school's Judge Ben C. Green Law Library -- added four new centers, and more than 130 courses in emerging areas of the law. It has also introduced CaseArc, a unique program integrating theory, writing and legal skills. Under Korngold's leadership, the law school ascended into the top fifty law schools in the U.S. News rankings by pursuing a focused strategy to move the law school ahead. First, the law school built upon the classic legal education and designed and implemented innovative educational programs to better prepare students for leadership in an ever changing world and that also provide a strong platform for high-impact scholarship and service.

Second, the law school provided a warm, challenging, interactive community of learning, with excellent student services and career services, to provide students with opportunities for their futures. These efforts have also distinguished the law school in American and global legal education.

"Dean Korngold has made major contributions both to the law school and the larger university community," said John Anderson, provost and university vice president. "We will miss the wisdom and enthusiasm he has brought to all his endeavors."

After leaving the dean's post Korngold will go on sabbatical for the 2006-07 academic year, then return to teach full-time as the McCurdy Professor. During his distinguished teaching career, Korngold received the "Professor of the Year" award three times.

The university is forming a search committee for a new dean.

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