Faculty in the News

Ohio State law professors are sought out for their expertise by a number of news media outlets and blogs with large audiences. Topics range from the death penalty to voter ID laws to artificial insemination – and our faculty members’ quotes and analysis can be found everywhere from small-town and national newspapers to radio broadcasts to cable news programs. The following is a selection of media coverage for Moritz College of Law faculty.

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2017 Media Hits

Neil Gorsuch Faces the Senate

March 20, 2017

Featured Expert: Peter M. Shane

An essay written by Professor Peter Shane for the American Constitution Society, “A Principled Reason to Oppose the Confirmation of Neil Gorsuch,” was quoted in The New York Times.

Responding to Judge Neil Gorsuch’s confirmation hearings before the Senate Judiciary Committee this week, the editorial board describes the blockade Senate Republicans took against Judge Merrick Garland, former President Barack Obama’s nominee for Supreme Court in 2016.

“Senate Republicans’ behavior last year set a new standard for bad faith,” the editorial board writes. “The question, as the constitutional law scholar Peter Shane wrote last week, is ‘whether there remains any institutional penalty for sabotaging constitutional norms.’”

Former DOJ mediator describes ‘active’ neutrality, at HLS symposium

March 9, 2017

Grande Lum, director of the Divided Community Project, was quoted in Harvard Law Today regarding the keynote address he delivered before the Harvard Negotiation Law Review’s 22nd Annual Symposium, “Reflections on the Intersection of Alternative Dispute Resolution and Activism.”

“Activism creates leverage. Activism creates power. Activism changes the status quo. And change happens when in addition to legislative and litigation victories, people work out solutions on their own,” Lum said. “That’s where those of us in ADR can play an important GPS-navigational role.”

Sessions likely pushing law enforcement to seek longer prison sentences

March 9, 2017

Featured Expert: Douglas A. Berman

Professor Doug Berman was quoted in The Week Magazine. He originally appeared in POLITICO.

In a recent memo from Attorney General Jeff Sessions to all federal prosecutors, Sessions suggests that he may be advocating for policy changes that would result in longer prison sentences. This would include backpedaling on former Attorney General Eric Holder’s guidelines that allow prosecutors to avoid making charges that lead to mandatory minimum sentences.

"My take is the Holder [policy] is toast," Berman told POLITICO. "Holder said you don't have to charge mandatory minimums and it looks like [Sessions is] going to say, 'Oh, yes, you do have to.'"

No: Anti-immigrant approach stokes hate, solves no pressing problems

March 2, 2017

Featured Expert: Ruth Colker

An op-ed by Professor Ruth Colker about President Donald Trump’s anti-immigration executive orders was syndicated through the Tribune News Service, reaching more than 7 million estimated readers.

“Like building a wall along the Mexican border, devoting additional resources to deporting people who pose no risk to American security is expensive and wasteful. Rather than squander money on a huge deportation force, we need to find a constructive path to citizenship for undocumented immigrants, who are the backbone of the farming, construction and high-tech industries,” Colker writes. “More fundamentally, the executive orders fly in the face of the bedrock American value of offering refuge to those ‘yearning to breathe free.’”

Colker’s op-ed, “No: Anti-immigrant approach stokes hate, solves no pressing problems,” was published in more than 10 news outlets nationwide, including USA TODAY, The Sacramento Bee, and the Post-Bulletin. 

Amazon Echo and the internet of things that spy on you

March 2, 2017

Featured Expert: Margot Kaminski

Professor Margot Kaminski was quoted in Popular Science about the First Amendment rights of Amazon Echo owners.

In December 2015, following the death of Victor Collins, Arkansas police filed a search warrant with Amazon for audio recordings from an Amazon Echo (a robotic personal assistant) located at the scene of the incident. Because the device is always on and listening to its surroundings, officials believe access to the recordings could offer valuable insight into their investigation. In February, the tech company filed a motion to quash the warrant, however, arguing that the search is a violation of First Amendment and privacy rights. 

“What Amazon’s doing is drawing on a line of cases that say there is a connection between freedom of expression, which is protected by the First Amendment, and privacy,” Kaminski said. “That connection is that when you have government surveillance—especially of intellectual activity, let’s say listening to music or reading books or buying books or even using the search engine—that surveillance implicates intellectual freedom in a way that’s important for free expression.”

What Privacy Do Students Have? Ohio Supreme Court Hears Backpack Seizure Case

March 1, 2017

Featured Expert: Ric Simmons

Professor Ric Simmons was quoted in WOSU Public Media about a recent Ohio Supreme Court case regarding the rights of students at public schools to have their personal property searched.

The case involves a then 18-year-old student whose backpack was searched by a Columbus high school security guard after it was left unattended on a bus. Believing that the student was a gang member, the guard took the bag to the principal’s office, where 13 bullets were subsequently found inside. When school officials tracked the student down, they found that he had brought a gun to school after searching a separate bag.

Two lower court rulings found that the security guard did not have responsible suspicion to search the bag in which the gun was found. Although the student faced charges for possession of a gun on school property, the gun was thrown out as evidence after the courts ruled that it was discovered unlawfully. If the Ohio Supreme Court rules differently, “it could have a very serious impact” across public schools, Simmons said.

"Public school officials generally want more authority to search backpacks, lockers,” he said. “Students themselves, and of course civil libertarians, believe that students should have the same rights as everyone else. It's all about balance, and how you want to balance what the school's rights are to keep the school safe, and the rights of the students to have the same rights that we all do."

White House drops Obama-era discrimination claim against Texas voter ID law

February 27, 2017

Featured Expert: Edward B. Foley

Professor Edward Foley was quoted in The Christian Science Monitor in an article about how the Trump administration dropped a discrimination claim against a Texas voter ID law. Viewed as one of the strictest voting requirements in the country by voting rights advocates, the law required voters to show one of seven valid forms of ID.

A federal appeals court ruled last year that the law disproportionately impacted minorities and those living in poverty. The court required the state to adjust its requirements before the general election. According to court testimony, Hispanic voters were twice as likely to lack proper ID under the law, while black voters were three times as likely.

“Voting litigation is increasing, not decreasing,” Foley said. “The main impression … is that when a law looks like it’s engaging in outright disenfranchisement of a valid voter, even conservative judges have been stopping that. [But] the judiciary is more tolerant with state legislatures adjusting issues of convenience and accessibility, if the adjustment is not outright disenfranchisement.”

Pro&Con: Pre-emptive strike would trigger global disaster

February 24, 2017

Featured Expert: John B. Quigley

An op-ed written by Professor John Quigley was syndicated through the Tribune News Service. Quigley discusses Iran’s ballistic missile test in January and subsequent rumors that Israel is planning a military strike against Iranian missile sites.

“Iran, regardless of what its leaders might boast from time to time, is not on a course to attack Israel. Even if they wanted to, Iranian leaders know such an attack would bring counter-action Iran could not sustain,” Quigley writes. “Hopefully, Trump is savvy enough to see through Netanyahu's long-standing effort to depict an existential threat that doesn't truly exist.”

OSU Law Professor Looks at Nuances of 'Pastor Protection Bill'; Pastors Turn Out in Force in Support

February 21, 2017

Featured Expert: Marc Spindelman

Professor Marc Spindelman appeared before the Ohio House of Representatives Community and Family Advancement Committee to give interested party testimony on the constitutionality of House Bill-36—referred to by its sponsor, Rep. Nino Vitale (R-Urbana), as the “Pastor Protection Act.” Spindelman’s testimony was featured in The Hannah Report. 

Among its key provisions, H.B. 36 would permit ordained and licensed ministers and religious societies statewide to refuse to solemnize same-sex civil marriages when doing so would conflict with their sincerely held religious beliefs. In addition, the Act also would authorize religious societies not to host marriage ceremonies on their property in accordance with their faith. Importantly, the Act creates various immunity provisions to ensure that those who exercise the prerogatives that it supplies will not be held legally liable, either civilly or criminally, for their acts.

“Interested party witness and constitutional and family law professor at Ohio State University's Moritz College of Law Marc Spindelman led off the day’s three hours of testimony, telling the committee that there is validity to the concerns raised by pastors regarding their potential liability over refusing ‘to solemnize a same-sex civil marriage that they are authorized by state law to celebrate ...’ under the U.S. Supreme Court decision in Obergefell v. Hodges regarding same sex marriage,” The Hannah Report writes. “However, he maintains, the solution to those concerns does not lie with the state Legislature. Rather, he explained, when conflicts arise between civil liberties—in this case the right to marry and the right of clergy ‘to practice their faith even when acting ... as agents of the state’—it becomes the purview of the U.S. Supreme Court for final resolution.”

Experts: GPS monitors couldn't save OSU student's life

February 17, 2017

Featured Expert: Ric Simmons

Professor Ric Simmons was quoted in The Columbus Dispatch about Brian Lee Golsby, the convicted sex offender charged with aggravated murder, aggravated robbery, kidnapping, and rape in the death of Reagan Tokes, a student at The Ohio State University.

Data from a GPS monitor Golsby had been wearing at the time confirmed that he was at the scene of Tokes’ murder. GPS monitors are not watched in real time, however, and authorities are not always notified immediately if parolees leave their designated areas.

“There are times when it's obvious who the worst of the worst are. But we didn't know at the time that he was one of the worst of the worst. For those terrible, terrible people, nothing works. Even GPS," Simmons said.

“[GPS monitors are] certainly not to be watched all the time. Frankly, that would be unrealistic,” he added. "You can say the system broke down in a lot of ways, but this was not one of them."

Arizona to death-row inmates: Bring your own execution drugs

February 17, 2017

Featured Expert: Douglas A. Berman

Professor Doug Berman was quoted in the Associated Press about a recent policy in Arizona allowing death-row inmates to provide their own lethal drugs for execution.

Executions in the state have been postponed since 2014, after Joseph Rudolph Wood took almost two hours to die following 15 doses of the sedative midazolam. They will remain on hold until an ongoing lawsuit questioning the state’s discretion during executions is resolved.

Overall, it has also been more difficult nationwide to procure the drugs necessary for lethal injections, as many European pharmaceutical companies have since prohibited their use. Berman views Arizona’s policy as opposition to the lawsuit and to the scarcity of lethal injection drugs across the country.

“I think the idea is to say in the protocol, ‘You guys want pentobarbital? Then get it. If you can get us the drugs, we’ll use them,’” he said.

Sharon Davies Named Spelman College Provost and Vice President of Academic Affairs

February 14, 2017

Featured Expert: Sharon L. Davies

Professor Sharon Davies was mentioned in a Marketwired press release regarding her recent appointment to provost and vice president of academic affairs at Spelman College, effective in June.

Davies is currently vice provost for diversity and inclusion and chief diversity officer for The Ohio State University, as well as director of the Kirwan Institute for the Study of Race & Ethnicity. She has spent 22 years on the faculty of the Moritz College of Law and currently serves as the Gregory H. Williams Chair in Civil Rights and Civil Liberties.

"Ms. Davies' distinguished record of scholarship and leadership in higher education and beyond will further advance the College,” Spelman President Mary Schmidt Campbell said. “As we seek to heighten the intellectual experience, global impact of Spelman women, and career horizons for our students, her experiences will allow her to effectively lead the College's academic functions with insight, creativity, and innovation in the dynamic and rapidly changing higher education environment."

Suspect in OSU student's murder arrested three months after getting out of prison

February 13, 2017

Featured Expert: Ric Simmons

Professor Ric Simmons was quoted in WSYX about the man arrested and charged with the recent murder of Reagan Tokes, an Ohio State student. The suspect, Brian Lee Golsby was arrested three months after he spent six years in prison for robbery and attempted rape in 2010. Although he faced 16 years in prison for the previous crimes, he took a plea deal for six years instead.

Jail time in a plea deal varies depending on the strength of the case, the age of the defendant, and their criminal history, according to Simmons. In 2010, Golsby had no prior history of violent crime. If he is found guilty for Tokes’ murder, Simmons said the prosecution could make a case for a life sentence or the death penalty.

"As a former prosecutor I think, 'what if I had been that prosecutor that did the sentence for the prior crime?'" Simmons said. "A rape case is going to be very hard to prosecute. Rape victims may not want to testify. You might not want to put them through that and there's a chance always you'll get an acquittal."

Separation of Powers, Explained

February 10, 2017

Featured Expert: Peter M. Shane

Professor Peter Shane was quoted in Moyers & Company in an explainer of the separation of powers outlined in the Constitution.

“The idea is to give each branch enough authority to be effective in the discharge of its functions. But they are also given powers that make the other branches partially dependent on one another,” Shane said. “It is that balance of independence and interdependence between the branches that is the distinct organizational characteristic of our federal government.”

Nazareth Restaurant owner feels relief that White House called machete attack ‘terrorism’

February 7, 2017

Featured Expert: Dakota S. Rudesill

Professor Dakota Rudesill was quoted in The Associated Press regarding a list of terrorist attacks recently released by the White House that are believed to be “executed or inspired by” ISIS. Rudesill, who worked in the office of the Director of National Intelligence during the Obama administration, said investigators exercise considerable caution before declaring an incident an act of terrorism.

“[T]he way that you depict something will then shape the way that you investigate it and if you’re wrong about your sense of motive for an attack, you can then be wrong about unraveling what actually happened,” he said.

Trump: Mike Pence to lead voter fraud probe

February 6, 2017

Featured Expert: Edward B. Foley

Professor Edward Foley was quoted in The Christian Science Monitor in an article about the investigation into voter fraud that will be led by Vice President Mike Pence. More than a dozen lawsuits nationwide regarding voting rights and access await federal court.

“Voting litigation is increasing, not decreasing,” Foley said. “The main impression … is that when a law looks like it’s engaging in outright disenfranchisement of a valid voter, even conservative judges have been stopping that. [But] the judiciary is more tolerant with state legislatures adjusting issues of convenience and accessibility, if the adjustment is not outright disenfranchisement.”

Trump's Sloppy, Unconstitutional Order on 'Sanctuary Cities

January 30, 2017

Featured Expert: Peter M. Shane

Professor Peter Shane was quoted in The Atlantic in an article about the legality of President Donald Trump’s executive order that threatens to pull federal funds from sanctuary cities should they refuse to cooperate with the federal government to deport undocumented immigrants.

“There is nothing to the idea of state sovereignty if state and city officials are not entitled to direct how their subordinates exercise their lawful discretion to advance state and local interests,” Shane said.

Trump’s Executive Order On Ethics Pulls Word For Word From Obama, Clinton

January 29, 2017

Featured Expert: Peter M. Shane

Professor Peter Shane was quoted in NPR about President Donald Trump’s executive order that imposes a five-year lobbying ban on executive branch employees. Despite declaring his distance from the Democratic party, Trump “borrowed heavily” from language in similar executive orders signed by former presidents Bill Clinton and Barack Obama, NPR reports. 

“When a new president’s executive order deals with a subject of operational concern to multiple administrations, it’s not surprising that the president’s lawyers would look to previous iterations as models,” Shane wrote in an email to NPR. “For a Republican president, reiterating the restrictive obligations prior Democratic presidents imposed on their appointees has the double advantage of using provisions vetted by other lawyers and apparently deemed acceptable to the political opposition.”

Trump Calls for Voter Fraud Probe: A Look at Past Inquiries

January 28, 2017

Featured Expert: Edward B. Foley

Professor Edward Foley was quoted in Voice of America about President Donald Trump’s plans to launch a “major investigation” into voter fraud. Trump claims he lost the popular vote because as many as 5 million non-U.S. citizens may have voted illegally.

“As I understand the latest allegations, somewhere between 3 to 5 million improper ballots were cast this past November nationwide, which Trump claims accounts for why Hillary Clinton won the popular vote,” Foley said. “Even if there were 3 to 5 million invalid votes nationwide, we can’t jump to the conclusion that the election result was tainted, because we don’t know who they voted for.”

The odds of a non-U.S. citizen successfully casting a ballot are “extremely low, extraordinarily low,” according to Foley. Instances in which invalid ballots are cast or when voters’ names appear on multiple state voter rolls also don’t necessarily indicate voter fraud either, he added.

“Just because a ballot was cast that was invalid, which is a problem, doesn’t necessarily mean there was a conspiracy to commit voter fraud,” Foley said. “Fraud is a pejorative term that implies intentional deception and manipulation, as opposed to there being mistakes in voter registration lists.”


National “Vote by Mail” Could Add Millions of Votes in 2018

January 27, 2017

Featured Expert: Steven F. Huefner

Professor Steven Huefner was quoted in Yes! Magazine about whether vote by mail systems have a measureable effect on voter turnout.

Vote by mail has led to “some marginal increase in turnout” during local or off-year elections, Huefner said, but ultimately has a relatively low impact during presidential elections.

“In high-profile elections … people who are going to vote are going to vote,” Huefner said.“And they’ll do that whether it’s voting by mail from their kitchen table or going to the polling place on the designated Election Day.”

Do Business Leaders Make Good Presidents?

January 19, 2017

Featured Expert: David Stebenne

An essay by Professor David Stebenne was quoted in a TIME article about whether business leaders are fit for the presidency.

Before Donald Trump, Dwight Eisenhower was one of the most outspoken presidents to embrace Big Business in his administration. Eisenhower, Stebenne writes, “felt government would be well served by successful men, who tend to be rich. If the leaders of successful businesses were excluded from consideration, [Eisenhower] wrote in his diary, the result would be an inability ‘to get anybody to take jobs in Washington except business failures, political hacks and New Deal lawyers.’”

Defend it, don’t defund it: Planned Parenthood does good work

January 18, 2017

Featured Expert: Ruth Colker

An op-ed written by Professor Ruth Colker about Congressional Republican efforts to defund Planned Parenthood was syndicated through the Tribune News Service. She examines the potential ramifications of denying federal funds to the organization. 

“This morally bankrupt strategy imperils a basic lifeline for health care services in many poor communities, because Planned Parenthood has an outstanding track record in providing life-saving health care screenings,” Colker writes. “It also imperils many women’s access to contraception, even though the overwhelming majority of Americans believe contraception should be legal and readily available. Moreover, this strategy is blatantly unconstitutional. Congress cannot constitutionally single out one health care provider as ineligible for any federal reimbursement for its services merely because Congress disapproves of the provider also spending non-federal dollars on abortions.”

Colker’s op-ed, “Defend it, don't defund it: Planned Parenthood does good work,” was ultimately published in more than 25 publications around the country including The Arizona Republic, Detroit Free Press, The Sacramento Bee, The Indianapolis Star, and The Tennessean.

Anti-Trumpers’ Most Futile Effort Yet to Stop Trump from Being Sworn In

January 16, 2017

Featured Expert: Edward B. Foley

Professor Edward Foley was quoted in Law Newz about efforts to persuade Chief Justice John Roberts to decline conducting Donald Trump’s Oath of Office on Inauguration Day. Even though the U.S. Constitution requires the President to take an oath of office, the the Chief Justice is not required to administer it. It is unlikely that such attempts will prevent Trump from being sworn in, Foley said.

“I think the main point is that the oath doesn’t need to be administered by the Chief Justice,” he said. “After Kennedy’s assassination, a federal district judge in Texas administered the oath to Johnson.”

National security, media professors analyze November campus attack

January 9, 2017

Featured Expert: Dakota S. Rudesill

Professor Dakota Rudesill was quoted in The Lantern about the November attack on Ohio State’s campus. Although the FBI has not officially declared the attack an act of terrorism, the federal agency reports that it may have been inspired by the Islamic State.

“Certainly, some of the early indications do point in the direction of this being a terrorist attack,” Rudesill said.

YES: Israel has abused the negotiation process

January 8, 2017

Featured Expert: John B. Quigley

A recent column written by Professor John Quigley was syndicated by the Tribune News Service. Quigley describes the Obama Administration’s recent decision not to veto a resolution passed by the United Nations Security Council condemning Israel’s settlement activity in Palestinian territory.

“The United States should sponsor a Security Council resolution to put teeth into the December resolution,” Quigley writes. “The council has the power to adopt diplomatic, financial and military measures against states that pose a threat to the peace. Israel’s occupation of Palestine, not to mention its construction of settlements there, qualify as a threat to the peace.”

Prominent prisoners’ supporters pin pardon hopes on Obama

January 7, 2017

Featured Expert: Douglas A. Berman

Professor Doug Berman was quoted in the San Francisco Chronicle about the clemency decisions before President Barack Obama as he prepares to leave office in January.

Several notable clemency requests await review from prisoners including Leonard Peltier, an activist with the American Indian Movement who was convicted of murdering two FBI agents in 1975; Chelsea Manning, a former Army private who was convicted by court-martial of disclosing 700,000 classsified documents to WikiLeaks about U.S. conduct in Afghanistan and Iraq; and Ethel Rosenberg, who was executed with her husband for espionage in 1953.

Although Obama has avoided controversial clemency requests, “now that he’s shown a commitment to reduce sentences that he thinks are unjust or excessive, maybe his last few batches will include some high-profile folks,” Berman said.

Man serving life without parole in KC firefighters tragedy gets resentencing hearing

January 6, 2017

Featured Expert: Douglas A. Berman

Professor Doug Berman was quoted in The Kansas City Star about the case of Bryan Sheppard, one of five defendants convicted for the arson deaths of six Kansas City firefighters in 1988. Sheppard was sentenced to life in prison without parole, but will request his immediate release next month.

Because Sheppard was a juvenile at the time of the crime, he has the right to seek a shorter sentence owing to a 2012 Supreme Court case, Miller v. Alabama. According to the ruling, sentencing juveniles to mandatory life sentences without parole violates the cruel and unusual punishment clause of the Eighth Amendment.

Several states have since passed legislation offering juvenile offenders serving life sentences a chance for release or parole after serving 20 years in prison.

“That may put some wind at the back of his defense attorney,” Berman said.

Voter ID Laws Are So Last (Election) Season

January 6, 2017

Featured Expert: Edward B. Foley

Professor Edward Foley was quoted in Bloomberg BNA about voter ID laws implemented during the last election cycle. The “voting wars will continue,” Foley said, as incoming state legislators start to reconsider new election laws.

He also discussed the number of last-minute, conflicting court decisions made throughout the election cycle that struck down voting restrictions in some states, while upholding them in others. The U.S. Supreme Court’s decision to dismantle part of the Voting Rights Act in 2013 created a “hunger for clarity” in regards to how lower courts consistently determine the legality of voting restrictions, he said.



This Law Could Still Stop Donald Trump, Says This Constitutional Expert

January 5, 2017

Featured Expert: Edward B. Foley

Professor Edward Foley was quoted in Bustle about the federal law permitting members of Congress to challenge Electoral College ballots. The law was enacted in 1887 -- as part of the Electoral Count Act -- in response to the 1876 election, Foley explained.

“We came much closer to a genuine constitutional crisis over the 1876 election,” Foley said. “Inauguration Day back then was on March 4, and we still didn’t know who was President until the early hours of March 2. Ulysses Grant was considering declaring martial law.”

The law requires the president of the Senate to call for any challenges as electoral ballots are counted. Any objections must be submitted in writing and also must be signed by one senator and one representative. Even with the law in place, it is unlikely to disrupt an election's outcome, Foley said.

“First, we’ll need to see if a senator signs on to any of these objections,” he said. “Then, under the statute, each house deliberates for up to two hours on the objection. It would take both houses to sustain the objection in order to disqualify that electoral vote.”


January 5, 2017

Featured Expert: David Stebenne

Professor David Stebenne was interviewed on BYU Radio’s The Matt Townsend Show. Stebenne discussed the history of cabinet selection as it relates to President-elect Donald Trump’s recent picks.

Former presidents Zachary Taylor, Ulysses S. Grant, Herbert Hoover and Dwight D. Eisenhower -- who were also all elected without previously holding a political office -- also all made similar cabinet selections to Trump’s, according to Stebenne.

Ohio judge’s death sentence rejection highlights rare trend

January 1, 2017

Featured Expert: Douglas A. Berman

Professor Doug Berman was quoted in The Associated Press about the rare occasions in which judges have overridden death penalty sentences in Ohio.

Since Ohio’s death penalty took effect in 1981, more than 320 death penalty sentences have been handed down across the state, compared to just nine judicial overrides. More recently in December, a Cleveland judge overruled a jury’s death penalty sentence, citing that the physical and mental abuse sustained by the defendant as a child, as well as the defendant’s history of mental health issues and incarceration, warranted a life sentence without parole instead.

Cases with strong mitigating evidence against the death penalty -- like a history of abuse -- are typically resolved with plea bargains, according to Berman.

“It’s relatively rare a case will get to a jury verdict if it looks like there’s a pretty significant possibility that the mitigators will outweigh the aggravators,” he said.