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Case Western Reserve Social Justice 
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2022 
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Endmatter

Mahoney, Michael

Case Western Reserve Social Justice 
Law Center: Reporter 
Volume 2022 Article 15 
2022 
A Declaration of Dependence for Iowa Civil Rights Committees 
Makela Hayford 
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 Part of the Civil Rights and Discrimination Commons 
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Hayford, Makela (2022) "A Declaration of Dependence for Iowa Civil Rights Committees," Case Western 
Reserve Social Justice Law Center: Reporter: Vol. 2022, Article 15. 
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This Essay is brought to you for free and open access by Case Western Reserve University School of Law Scholarly 
Commons. It has been accepted for inclusion in Case Western Reserve Social Justice Law Center: Reporter by an 
authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 
In this case, the mayor of Davenport, Iowa, fired Nicole Bribriesco-
Ledger and three other commissioners shortly after learning that 
those commissioners discussed taking legal action against the 
city. Bribriesco-Ledger asserted that members of a city’s civil rights 
commission could only be fired for cause, while the mayor claimed 
the commissioners served at the leisure of the executive and could be 
terminated at-will. The trial court agreed with Bribriesco-Ledger, as it 
was persuaded that part of what makes a commission “independent” 
is the members’ employee status. The lower court held that the mayor, 
Frank Klipsch, only had the authority to remove committee members 
for cause. Therefore, because Bribriesco-Ledger was not fired for cause, 
her removal was unlawful. 
On appeal, the Iowa Supreme Court reduced the fact pattern above to 
this sentence: “This appeal requires us to answer whether Davenport’s 
mayor may remove an appointee from the Davenport Civil Rights 
Commission without cause.” Immediately, the omission of relevant 
facts raises concerns about the Court’s intent. The facts of this case 
are egregious, and they illustrate the type of situation from which an 
“independent” committee should be exempt. The Court spent no time 
on these facts, the implications of these facts or the way in which the 
law would be expected to interact with these facts. Ignoring the facts 
of a case is a poor way to deal with any ambiguity that arises in that 
case, as it allows a court to analyze the law in isolation, narrowing or 
broadening the scope of the words to achieve a desired outcome.
In reversing the trial court, the Iowa Supreme Court claimed that 
its interpretation of the law was the truest to the text of the 1990 
Iowa Acts law. That law created civil rights committees in each city 
with a population over 29,000. Notably, the Court repeatedly cited 
former Supreme Court Justice Antonin Scalia’s book, Reading Law, in 
conjunction with case law from the early 20th century as it declined 
to apply the first definition of “independent agency” from Black’s Law 
Dictionary, a frequently updated publication of the 21st century. The 
Court finds this definition to be too broad for the purposes of this law.
Truth to the letter of the law is one matter, but truth to the spirit of 
the law is another. The Court asserted that the letter of Iowa law 
properly reflected the intended interaction of municipal law and civil 
rights commissions. The majority omitted almost any evaluation 
of supporting case law for her position, from Iowa or elsewhere. 
The closest the Court came to analyzing the merits of Bribriesco-
Ledger’s argument is to dismiss her assertion that members of 
“independent” committees may only be removed for cause. The Court 
employed whataboutism, citing the Iowa Code’s provision that the 
independent commission has control over staff. The Court claimed 
no commission would have to specify this control if that commission 
was independent in the manner Bribriesco-Ledger asserted, so 
“independent” must not mean what Bribriesco-Ledger asserted. 
The Court applied a maxim of textual interpretation: inclusion of one 
term is an exclusion of all others. This is a maxim generally applied 
to lists, but here the Court applied it to portray a clarification as a 
contradiction.
Problematically, the Court neglected to mention that the mayor 
basically fired these members to preempt legal action. The Supreme 
Court ripped all context from this decision and insulated the law from 
the facts, then gave the law a brittle, textual skin. Proponents of this 
type of interpretation claim it is a principled approach to give certainty 
to legal outcomes. Here, the Court offers the panacea of more certain 
outcomes at the cost of context, willfully ignoring the negative 
externalities—chiefly the municipal authority being unaccountable 
to civil rights committee actions—caused by its decision. “The law is 
what it says,” and one needs to look no further at the ramifications.
Those ramifications of the Court’s decision will be felt most by citizens 
of Iowa’s larger communities who cannot afford legal representation. 
Iowans who can afford representation can sue the city directly for civil 
rights violations, but this decision renders the civil rights committee 
toothless by de facto removing the commission’s power to bring a 
lawsuit. As with the facts in this case, all a mayor or similar municipal 
A DECLARATION 
OF DEPENDENCE 
FOR IOWA CIVIL RIGHTS COMMITTEES
By Makela Hayford
What does independent mean to you? In Bribriesco-Ledger v. Klipsch, Iowa’s Supreme Court gave a surprising answer 
to Iowa’s city civil rights commissions. Where one may be inclined to see independent commissions as insulated 
from both the political process and elected officials in turn, the Court saw independence as window-dressing. In 
overturning the trial court, Iowa’s highest court declared that civil rights commissioners are removable by the elected 
officials they are supposed to hold accountable.
50  x  Case Western Reserve University School of Law   x   Social Justice Law Center
authority must do is fire the members of the 
civil rights committee that are planning to sue. 
They can then replace appointees at will, likely 
under the condition they do not pursue legal 
action against the city. If the new appointee 
defects, the municipal authority fires him or 
her, and the cycle begins anew. Ultimately, 
this power grants municipalities immunity 
from these civil rights committees. This is the 
context that the Bribriesco-Ledger court failed 
to consider in the majority opinion.
Judge Appel captured the urgency of this 
matter in his Bribriesco-Ledger dissent. His 
dissent contained the only full recounting 
of the facts from the trial court. He noted 
the dissociation of “independent” from its 
understood legal meaning by his colleagues 
and explained why their reasoning did not 
square with the history, intent or language of 
the statute the majority analyzed.
Judge Appel’s deep dive into the history 
of Iowa civil rights legislation is both 
illuminating for the reader and embarrassing 
for the majority. Where the majority applied 
a selective sort of textual argument, picking 
and choosing which statutes to analyze in 
concert with less frequently used definitions 
of “independent,” Judge Appel wrote a 
dissertation. He expertly cut through the 
veil of textualism to the matter at hand: 
These civil rights committees cannot 
function in claims against their own city if 
their members can be fired at will by the 
city’s elected officials. The mayor’s firings in 
anticipation of litigation were flagrant, and 
Judge Appel refused to allow his conduct to 
be cloaked as a mere “firing without cause” to 
an uninitiated reader.
Judge Appel noted that Bribriesco-Ledger 
is just one step further down the road for 
the court regarding municipal authority over 
“independent” committees. He cited multiple 
recent decisions showcasing this erosion, and 
the repercussions are summarized succinctly 
in his conclusion: 
After today, unless there is a provision in the 
local ordinance protecting the “independence” 
of the commission,1 a sincere local commission 
might consider disclosing to citizens in a 
candid brochure or other publication that it 
only has the resources to bring a handful 
of cases, that a [right-to-sue] letter is not 
available for violations of the local ordinance 
and that if the commission is considering 
bringing an action against the city itself, or 
another politically connected entity, the mayor 
can fire the commissioners to stop it.2
Judge Appel dodged at least one inconvenient 
decision in Seila Law LLC, however: In that 
case, the Supreme Court ruled that the 
president has the authority to remove the 
head of the Consumer Financial Protection 
Bureau (“CFPB”), an “independent” agency, 
because the agency was led by one director 
instead of multiple commissioners. The 
Court claimed this organizational structure 
was incongruous with the Constitution 
and permitted the CFPB’s head to be fired. 
Seila Law was decided in 2020, so this case 
is representative of the Court’s current 
disposition on independent agencies.
While Judge Appel correctly noted that Seila 
Law did not overturn Humphrey’s Executor, 
the first Supreme Court case to recognize 
that heads of independent agencies can 
only be fired for cause, Seila Law limited 
the scope of protection for independent 
agencies. He also noted that Morrison, which 
held that “inferior executive agents” without 
rule making authority can be terminated on 
a for-cause basis, is closer to Bribriesco-
Ledger’s position than the single director 
of the CFPB in Seila Law. Despite these 
caveats, Seila Law has undoubtedly eroded 
some long-standing federal precedents of 
independent agencies, and the Supreme 
Court may be amenable to further erosion 
when the opportunity presents itself.3 At 
least Justices Thomas and Gorsuch were 
prepared to overturn Humphrey’s Executor in 
Seila Law, and while it is unknown if Justice 
Coney Barrett would side with them, there 
is at least a pathway to a total overturn 
of Humphrey’s Executor, eliminating the 
concept of independent agencies in Federal 
law. Thus, the Iowa Supreme Court’s majority 
opinion in Bribriesco-Ledger reflects the 
trend in federal law, and it is not a trend that 
favors Judge Appel’s dissent, no matter how 
well-reasoned, precise, and rooted in fact and 
precedent it is.
These trends away from independent 
commissions in Iowa and elsewhere will 
lead to more legal challenges for existing 
commissions, agencies, and otherwise. As 
seen here, an official like Mayor Klipsch may 
act egregiously in the face of legal action 
from an independent commission, and now 
there is no recourse for that official in the 
legal system. Sure, that official probably loses 
re-election. So what? The next person in the 
role will have the same free reign to avoid 
consequences as the last one. 
In conclusion, independent agencies are 
viewed as blasphemy to constitutional 
originalists who see these agencies as an 
illegitimate fourth branch of government. 
This theory has become more popular in 
recent years, and it is all too easily expanded 
to municipalities. Municipal agents wield 
similar power to other executives over 
a smaller jurisdiction, enabling them to 
act swiftly and respond to the citizenry. 
Allowing mayors or similar units of municipal 
government to oust the commission 
preparing to sue them is a declaration of 
dependence, and that voice joins the growing 
chorus. States will see their independent 
agencies challenged in conjunction with 
the national trend, and these agencies 
will continue to be bent by jurists who 
see them as illegitimate until they finally 
break. That break must be done through 
individual challenges in each state, but a 
formal overturning of Humphrey’s Executor 
may open the floodgates. For those who 
have pushed to see these agencies brought 
back under the clear control of the executive 
branch, Iowa’s decision in Bribriesco-Ledger 
is a sweet victory. For those who may face 
discrimination in the future and find their 
complaints go unanswered by an agency that 
is no longer able to help them find justice, 
this so-called victory is unpalatable.
 1.  Bribriesco-Ledger v. Klipsch, 957 N.W.2d 646 
(Iowa 2021).
 2.  Bribriesco-Ledger v. Klipsch, 957 N.W.2d 646, 
668-69 (Iowa 2021).
 3.  Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2211 
(2020) (Thomas, J. and Gorsuch, J. Concurring in 
Part and Dissenting in Part).
After today, unless there is a provision 
in the local ordinance protecting the 
“independence” of the commission,1 a 
sincere local commission might consider 
disclosing to citizens in a candid 
brochure or other publication that it only 
has the resources to bring a handful 
of cases, that a [right-to-sue] letter is 
not available for violations of the local 
ordinance and that if the commission is 
considering bringing an action against 
the city itself, or another politically 
connected entity, the mayor can fire the 
commissioners to stop it.2
The Reporter   x   2022 51


A Declaration of Dependence for Iowa Civil Rights Committees

Hayford, Makela

Case Western Reserve Social Justice 
Law Center: Reporter 
Volume 2022 Article 11 
2022 
Lessons from Brookline: Lawsuits Won’t Save Us From Racist 
Workplace Practices 
Makela Hayford 
Follow this and additional works at: https://scholarlycommons.law.case.edu/sjlcr 
 Part of the Civil Rights and Discrimination Commons 
Recommended Citation 
Hayford, Makela (2022) "Lessons from Brookline: Lawsuits Won’t Save Us From Racist Workplace 
Practices," Case Western Reserve Social Justice Law Center: Reporter: Vol. 2022, Article 11. 
Available at: https://scholarlycommons.law.case.edu/sjlcr/vol2022/iss1/11 
This Essay is brought to you for free and open access by Case Western Reserve University School of Law Scholarly 
Commons. It has been accepted for inclusion in Case Western Reserve Social Justice Law Center: Reporter by an 
authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 
In 2010, Paul Pender instigated an 11-year 
litigation nightmare resulting in an $11 
million settlement when he left a voicemail 
for Gerald Alston that concluded with the 
words “f…g n…r.” Both men served as 
firefighters for the Town of Brookline and at 
the time. Pender, who is white, supervised 
Alston, who is Black. 
When Alston took offense to the voicemail, 
Pender explained that the slur was not 
intended for Alston. Instead, Pender 
intended it for “a young black gangbanger” 
who had cut off Pender in traffic. This 
explanation worsened the impact of the 
slur, yet many individuals charged with 
responding to Alston’s complaint believed 
that Pender’s story sufficiently explained 
away Alston’s claim of a personal attack. 
If the Town officials believed that someone 
indeed cut Pender off in traffic, Pender’s 
use of a historic slur in such a commonplace 
occurrence remains unjustified, revealing 
his casual use of a racial slur. Further, 
Pender’s categorization of a stranger in 
traffic as a “gangbanger” reveals unabashed 
stereotyping and the use of another 
derogatory term directed at a Black person. 
Alston was implicated in these stereotypes 
and their harmful effects. 
In actuality, the explanation served as 
Pender’s second violation of the town’s 
zero-tolerance policy for racism in the 
workplace. While Pender’s explanation 
should have done more harm than good 
to his employment status given the zero-
tolerance policy, the town chose to promote 
Pender, and ultimately to terminate Alston. 
Unfortunately for Alston, this counter-  continued on next page >
LESSONS FROM BROOKLINE:
Lawsuits Won’t Save Us From Racist 
Workplace Practices
By Makela Hayford
intuitive HR decision marked only the 
beginning of the cascading destruction of 
his career as a firefighter as well as his 
sobriety and mental health. 
The aftermath
As noted above, in 2010, Alston brought 
civil rights claims against the Town under 
42 U.S.C. §§ 1981, 1983 and 1985.2 In 
2021, the Town settled with Alston for $11 
million. To some, the settlement award 
may seem excessive, but as Alston has 
acknowledged, it will never make him whole. 
Herein lies the absurdity of the legal fiction 
that money can right civil wrongs. One of 
the many implications of health inequities 
and reduced life expectancies is that, Black 
people especially, don’t have the luxury of 
waiting on settlements to one day be made 
whole. Ta-Nehisi Coates described this 
aspect of his own mortality, writing, “You 
must wake up every morning knowing that 
no promise is unbreakable, least of all the 
promise of waking up at all.” Mortality ought 
to be urgent enough for radical change in 
the legal system, but if that were true, Black 
Lives Matter would have already achieved it. 
In hopes of pursuing change that falls 
somewhere between the status quo and 
radical re-imaginings, this paper seeks 
to highlight three of Brookline’s failures: 
(1) how the Town of Brookline leveraged 
white fragility against Alston; (2) the Town’s 
weaponization of mental health and mental 
health professionals; and (3) the Town’s use 
of non-cooperation agreements. 
“For the master’s tools 
will never dismantle the 
master’s house. They 
may allow us temporarily 
to beat him at his own 
game, but they will never 
enable us to bring about 
genuine change.” 1
—Audre Lorde
“
The Reporter   x   2022 37
Coddling white fragility
As coined by Robin DiAngelo, white fragility encapsulates the 
defensive actions that white people take when confronted with 
racism.3 DiAngelo conceptualizes these actions as “an outcome of 
white people’s socialization into white supremacy and a means to 
protect, maintain and reproduce white supremacy.”4 In addition to 
causing significant harm to Alston, these responses prolonged the 
litigation and abused the Town’s resources. 
The Town protected white supremacy by continuing to promote 
Pender despite his use of the n-word and despite his continued 
retaliatory behaviors. As a consequence of white supremacy, Pender 
was seen as extremely apologetic for his actions. He was also seen 
as deserving of continued promotions in order that one mistake 
wouldn’t derail his career. Even when Pender was disciplined for his 
voicemail by way of a 42-day suspension, he was instantaneously 
credited with 42 days of paid vacation days. This shows how Pender 
was protected from all consequences. 
Additionally, Pender maintained white supremacy by admonishing 
Alston for coming forward. Days after Alston raised concerns about 
the voicemail incident, Pender told Alston that it was “the stupidest 
thing [Alston] could have ever done.” He then asked Alston, “Are 
you after my job or something?”5 These comments from Pender 
demonstrate maintaining white supremacy. Denigrating Alston’s 
decision to come forward and to challenge the racism he experienced 
is a form of retaliation that enforces a culture of silence: white 
supremacy can thrive if individuals do not report it or problematize it 
the way Alston did. 
The Town also reproduced white supremacy by tokenizing Black 
voices. In September of 2013, Nancy Daly, a white town official, 
circulated a letter from a retired Black firefighter criticizing Alston 
and asserting that, “it was insulting to all firefighters for Alston to 
claim that he could not count on fellow firefighters to save him in 
a life-threatening situation.” This letter did not comment on the 
actual issues at hand; however, it was a Black voice that seemed 
to contradict Alston. Using a Black person to reflect the views of all 
Black people is a tactic to create the illusion of division and erode the 
credibility of a complaint of racism. White supremacy is maintained 
by this practice of discrediting Black people. In disseminating this 
letter, Pender also used this tactic when he spoke to five new 
minority firefighter recruits at his station. Allegedly these recruits 
agreed with Pender that Alston was drawing out the n-word incident 
and acting unreasonably. This account is problematic, given that 
the recruits were new and likely going to agree with anything their 
new supervisor would have said. Further, any offhand comments 
by individuals who were not intimately familiar with the situation 
must be evaluated critically. Instead, the comments by the recruits 
were used as true perspectives—not because of the context, but 
merely because the recruits were Black and Brown. Daly and Pender 
perpetuated a narrative that Alston was unreasonable and unwilling 
to move beyond the voicemail incident. 
Both Pender’s and the Town’s response to Alston’s sharing of his 
concerns were rooted in the assumption that both Pender and the 
Town are not racist. In fact, the town often cited its “zero tolerance” 
policy for workplace racism and retaliation. This was problematic 
because, instead of addressing Alston’s complaint, Pender and the 
Town focused on their reputations and public image instead of the 
substance of protecting employees from discrimination.
Gaslighting and weaponizing mental health professionals
At the end of his shift on December 19, 2013, Alston found the 
word “leave” written in the dust on the door next to the seat on the 
firetruck to which he had been assigned. He called this display to the 
attention of two coworkers, Ryan Monahan and Cormac Dowling. 
Chief Ford was informed of the incident, and he reported it to both 
DeBow and Murphy. Three days later, Alston referred to the incident 
in front of coworkers and stated that “people go postal over matters 
like this.” That night, Ford interviewed Alston about his statement 
and—concerned about Alston’s mental state—placed him on paid 
leave, pending a psychiatric evaluation. From that point forward, 
Alston never resumed work as a firefighter.
A particularly concerning response to Alston’s complaints of racism 
was the Town’s practice of gaslighting. Gaslighting is defined as a 
form of manipulation where one individual makes another question 
his reality.6 In other words, rather than address the racism Alston 
brought to the HR department’s attention, the HR department 
focused on undermining Alston’s experience of racism.
As another example, after Alston reported Pender for his use of 
the racial slur, the Town promoted Pender to higher positions and 
continued to afford him opportunities. Within four months of the 
voicemail incident, Pender was invited to the White House to accept 
an award for his heroism during a 2008 fire. At one point, Alston 
reached out to the fire chief to express his frustration with how 
Pender was seemingly rewarded for his behavior. In response, the 
fire chief suggested that Alston seek mental health counseling. 
In addition, Alston’s long-term colleagues began to isolate and 
shun him. It is common knowledge that firefighters work in a fire 
“house” sharing meals, and essentially living together until they are 
dispatched for an emergency. In Alston’s case, his colleagues would 
leave the room as soon as he entered, ignore him and leave him out 
of social events. This isolation, however, was not solely at the hands 
of other white firefighters: recall the retired black firefighter who 
wrote a widely-circulated letter disparaging Alston. 
Equally concerning is how the Town weaponized mental health 
professionals by picking and choosing which parts of Alston’s mental 
health assessments to give weight to. The simplest explanation is 
that the Town only used the damning parts of the evaluations to 
keep Alston out of work (a positive cocaine test, outbursts, anger), 
but never implemented the proposed accommodations that would 
have facilitated his return to work (enforcing the non-retaliation 
policy, disciplining individuals who were antagonizing Alston). The 
mental health professionals that Alston met conditioned his return 
to work on the elimination of a racially-biased environment. In 
other words, the onus was placed on the Town to accommodate 
Alston by ceasing to subject him to racial stress. Despite requiring 
Alston to attend these sessions and relying on information 
38  x  Case Western Reserve University School of Law   x   Social Justice Law Center
gleaned from Alston’s private sessions 
to make determinations about Alston’s 
employment status, the Town never made 
the accommodations the mental health 
professionals recommended.
Rather than improve the situation which 
would have improved Alston’s mental 
health, the Town consistently made the 
situation worse and blamed Alston for his 
worsening mental health.
Enforcing non-cooperation agreements
In order to succeed on his equal protection 
claim, Alston needed to prove that he 
was treated worse compared with others 
who are similarly-situated, and that this 
treatment was on the basis of race. The 
First Circuit found that Alston did not meet 
his burden because he did not proffer 
evidence that non-Black firefighters were 
treated more favorably.7
A likely part of this difficulty was the 
Town’s use of non-cooperation agreements 
in settlement cases with other Black 
firefighters. These agreements functioned to 
bar firefighters who participated in previous 
settlements from “voluntarily cooperat[ing] 
or assist[ing] any person or entity...in the 
prosecution of any claims against the 
defendants.” Additionally, some of the 
non-cooperation agreements mentioned 
Alston by name and prohibited individuals 
from cooperating with the federal court 
complaint. 
It is important to consider the relative 
positioning and power of the firefighters 
who signed the non-cooperation 
agreements as compared to the Town. 
If they experienced similar racial 
discrimination to Alston, as well as the 
backlash that followed, signing such an 
agreement in exchange for money and the 
end of the process might seem like the only 
option. Further, if the firefighters retained 
legal counsel to aid in the process, there 
may be incentives for counsel to encourage 
settlements rather than substantive 
change, or even cooperation, down the 
line with other firefighters who experience 
discrimination. The attorney pay structures 
must be examined in considering who 
the litigation process is serving. These 
considerations serve to highlight some of 
the limitations of the status quo processes 
that continue to be overlooked. 
The First Circuit court of appeals held 
that non-cooperation agreements are 
permissible in the interest of allowing 
private parties to settle and bargain with 
one another outside of court. Arguably, this 
saves the court system from overuse by 
encouraging parties to resolve matters on 
their own. This is an interesting take coming 
from a justice system that purports to rely 
on the truth; if silence can be bought, then 
the true nature of systemic racism will 
always be obscured. Allowing the Town to 
bargain for the silence of other firefighters 
who experienced the same discrimination 
as Alston makes it nearly impossible for 
Alston to prove his claim. It serves to erase 
any record of the systemic nature of the 
Town’s racism, and makes Alston’s claim 
less credible. Here, the Court remarked 
that Alston did “not make the slightest 
effort” to identify facts to show a disparity 
in treatment between white and Black 
firefighters; this remark contravenes any 
notion of justice. In reality, the Court-backed 
non-cooperation agreements served to 
thwart any of Alston’s efforts to identify 
disparities. 
Alston deserves compensation for the past 
11 years of harm caused by his employer; 
however, if the goal is to deinstitutionalize 
workplace racism, the legal community 
must reckon with the shortcomings of 
the litigation processes and attempt to 
develop changes to workplace policies and 
mechanisms of enforcement that actually 
root out racism. There are a number of 
reasons that litigation alone cannot fix 
workplace racism: access to civil litigation 
is limited, litigation is expensive, takes a 
substantial amount of time and compounds 
stress to those who have been harmed. 
Litigation processes are adversarial with 
clear winners and losers, and do not support 
continuing relationships. In this case, Alston 
cannot work for the Town of Brookline, 
despite the Town’s apology, $11 million and 
recognition of its harmful actions against 
Alston. Further, as long as the harms of 
workplace racism are reduced to monetary 
quantities, employers will continue to 
commit so-called efficient breaches, 
or strategically calculated violations of 
antidiscrimination policies, in order to avoid 
the process of rooting out policies—both 
formal and informal—that allow racism to 
flourish. 
Looking beyond litigation is not a lofty, 
abstract idea. As demonstrated here, there 
are policy decisions that employers have the 
power to make each time they are presented 
with a complaint from an employee. 
 1.  Lorde, Audre. “The Master’s Tools Will Never 
Dismantle the Master’s House.” 1984. Sister 
Outsider: Essays and Speeches. Ed. Berkeley, 
CA: Crossing Press. 110114. 2007. Print.
 2.  The operative complaint named a long list of 
defendants, including the Town, the Brookline 
Board of Selectmen (the Board), the Town’s 
counsel and human resources director, and 
select members of the Board (Nancy Daly, 
Betsy DeWitt, Ben Franco, Kenneth Goldstein, 
Bernard Greene, Nancy Heller, Jesse Mermell 
and Neil Wishinsky). All of the individual 
defendants were sued in both their personal 
and official capacities.
 3.  DiAngelo, White Fragility.
 4.  Page 112 (White Fragility chapter). 
 5.  Alston v. Town of Brookline, 997 F.3d 23, 30  
(1st Cir. 2021). 
 6.  “APA Dictionary of Psychology.” APA.org. 
American Psychological Association. 
 7.  “In his briefing, Alston does not make the 
slightest effort to identify any facts in the 
record that might show such a disparity in 
treatment.” Alston v. Town of Brookline, 997  
F.3d 23, 41 (1st Cir. 2021).
The Reporter   x   2022 39


Lessons from Brookline: Lawsuits Won’t Save Us From Racist Workplace Practices

Nourani-Dargiri, Alireza

Case Western Reserve Social Justice 
Law Center: Reporter 
Volume 2022 Article 14 
2022 
State of Ohio v. Wrongful Convictions 
Alireza Nourani-Dargiri 
Follow this and additional works at: https://scholarlycommons.law.case.edu/sjlcr 
 Part of the Civil Rights and Discrimination Commons 
Recommended Citation 
Nourani-Dargiri, Alireza (2022) "State of Ohio v. Wrongful Convictions," Case Western Reserve Social 
Justice Law Center: Reporter: Vol. 2022, Article 14. 
Available at: https://scholarlycommons.law.case.edu/sjlcr/vol2022/iss1/14 
This Essay is brought to you for free and open access by Case Western Reserve University School of Law Scholarly 
Commons. It has been accepted for inclusion in Case Western Reserve Social Justice Law Center: Reporter by an 
authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 
In its unanimous opinion, the Eighth District 
underscored that the “total lack of physical 
evidence [used to convict the defendants] 
is extremely disturbing.”5 At the time 
of conviction, Officers Daniel Lentz and 
Michael Keane claimed—under oath and 
under penalty of perjury—that Sutton and 
Phillips shot at them after the hit-and-run 
shooting.6 In a case involving an alleged 
hit-and-run shooting, one expects some 
definitive evidence (i.e., bullet casings) at the 
crime scene linking Sutton and Phillips to 
the incident. Yet, “[n]ot a single gun, bullet 
hole, bullet casing, or evidence that any guns 
were present or fired by the defendants” 
was found at the scene.7 
Last year, Ohio’s Eighth District Court of Appeals awarded Michael Sutton and Kenny Phillips a 
new trial based on newly discovered evidence.1 Sutton and Phillips were convicted in 2006 on 
several counts for attempted murder and resisting arrest during a hit-and-run shooting.2 Sutton 
was sentenced to 46.5 years in prison and five years of post-release control.3 Phillips was 
sentenced to 92 years in prison—effectively life imprisonment.4 However, the Eighth District 
noted that these two men, convicted as minors, may have been imprisoned for more than a 
decade for a crime they did not commit. 
The only evidence the State recovered was a 
trace amount of gun residue from the front 
passenger side of Sutton and Phillips’s car, 
and from the left hand of Phillips8. Phillips, 
however, is right-handed and was sitting 
in the rear driver’s side seat.9 Tellingly, 
experts throughout the trial agreed that this 
residue did not and, more importantly, could 
not prove that either one ever possessed 
or fired a gun linked to the hit-and-run 
incident.10 Even if Phillips had sat in the 
front passenger side, experts testified that 
this amount of residue was so small that 
it could have been transferred to Phillips 
when he was transported in the police 
car.11 Accordingly, expert witnesses for both 
parties agreed that the “evidence [the State 
presented] did not prove that Phillips ever 
possessed or fired a gun.”12 
The State had no evidence to present to 
the jury linking the two young men to the 
incident. The State had no direct evidence 
linking Sutton and Phillips to the alleged 
offense. The State had no evidence proving 
the defendants ever possessed or fired a 
gun. The State had no evidence to support 
the testimony of its police officers. Instead, 
the State attempted to bolster the officers’ 
credibility to the jury to prove its case. The 
State lauded Lentz and Keane—two white 
police officers—as “highly decorated veteran 
STATE OF OHIO 
V. WRONGFUL 
CONVICTIONS 
By Alireza Nourani-Dargiri
48  x  Case Western Reserve University School of Law   x   Social Justice Law Center
Cleveland officers,” even though these two 
officers may not have been as upstanding 
and flawless as the State purported them 
to be.13 On the other hand, the State 
described the two unconvicted, potentially 
innocent, Black teenage boys as liars, even 
though both “zealously, continuously and 
unequivocally maintained their innocence”14 
from the start, insisting that “occupants of 
another car committed the shooting.”15 
Recent definitive testimony now directly 
challenges the little evidence the State used 
to convict Sutton and Phillips.16 The Eighth 
District described how this new evidence 
“bolster[ed] the account” offered by Sutton 
and Phillips and presented “potentially 
exculpatory and impeaching information” 
that was not provided to the defense during 
their original trial.17 Moreover, the Court 
noted this potentially exculpatory evidence 
constituted a Brady violation—grounds to 
award the two a new trial.18 
The Eighth District concluded its opinion 
with a discussion about the criminal 
legal system’s bias against Black youth. 
The court discussed “numerous studies 
confirm[ing] that African Americans are 
disproportionately and often wrongfully 
convicted.”19 These studies include appalling 
statistics of innocent, Black defendants 
asserting they were being framed by 
police—the exact assertion Sutton and 
Phillips made.20 Although there is no “one 
reason” for this discriminatory practice, the 
Court noted that the result is “approximately 
half of discovered individual exonerations” 
are Black.21 
If found innocent and thereby wrongfully 
convicted, Sutton and Phillips will be 
included in a growing list of exonerees in 
Ohio. Notable examples over the past few 
years include: Isaiah Andrews (45 years 
wrongfully imprisoned);22 Ricky Jackson (39 
years wrongfully imprisoned);23 Raymond 
Towler (29 years wrongfully imprisoned);24 
Kwame Ajamu (28 years wrongfully 
imprisoned);25 Charles Jackson (27 years 
wrongfully imprisoned);26 Laurese Glover (20 
years wrongfully imprisoned);27 and Ru-El 
Sailor (15 years wrongfully imprisoned).28 If 
the jury finds Sutton and Phillips innocent, 
the two will have one main thing in common 
with the exonerees: they were all innocent 
Black men. 
 1.  Ham v. SouthState v. Sutton, 2021-Ohio-854 
2 (Mar. 18, 2021).
 2.  Id. at 27–28.
 3.  Id.
 4.  Id.
 5.  Id. at 104.
 6.  Id. at 97, 104.
 7.  Id. at 104.
 8.  Id. at 20, 105.
 9.  Id.
 10.  Id. at 105.
 11.  Id.
 12.  Id. at 21.
 13.  See Cory Shaffer, No Felony Charge for 
Cleveland Police Officer Accused of Breaking 
Daughter’s Arm, clevelAnd.com (Sept. 16, 
2019, 3:30 PM), https://www.cleveland.com/
court-justice/2019/09/no-felony-charge-
for-cleveland-police-officer-accused-of-
breaking-daughters-arm.html; Adam Ferrise, 
Cleveland Police Officer Wrongfully Arrested 
Woman, Left Toddler with Man Accused of 
Child Abuse, Investigators Say, clevelAnd.
com (Jan. 13, 2021, 10:09 AM), https://www.
cleveland.com/metro/2021/01/cleveland-
police-officer-wrongfully-arrested-woman-
left-toddler-with-man-accused-of-child-
abuse-investigators-say.html.
 14.  Sutton, 2021-Ohio-854 at 29.
 15.  Id. at 74.
 16.  Id. at 40.
 17.  Id.
 18.  Id. at 84, 112, 156. 
 19.  Id. at 144.
 20.  Id. at 99, 143–47. 
 21.  Id. at 149.
 22.  Cory Shaffer, Jury Finds Man Not Guilty in 
Retrial of Wife’s 1974 Killing in Cleveland, 
clevelAnd.com (Oct. 27, 2021, 3:53 PM), https://
www.cleveland.com/court-justice/2021/10/
jury-finds-man-not-guilty-in-retrial-of-
wifes-1974-killing-in-cleveland.html. 
 23.  Ricky Jackson, witness to innocence, https://
www.witnesstoinnocence.org/single-post/
ricky-jackson (last visited 2022).
 24.  Raymond Towler, innocence ProJect, https://
innocenceproject.org/cases/raymond-
towler/ (last visited 2022).
 25.  Kwame Ajamu, witness to innocence, https://
www.witnesstoinnocence.org/single-post/
kwame-ajamu (last visited 2022).
 26.  Charles Jackson, nAt’l registry oF 
exonerAtions, https://www.law.umich.edu/
special/exoneration/Pages/casedetail.
aspx?caseid=5605 (last visited 2022).
 27.  Laurese Glover, nAt’l registry oF 
exonerAtions, https://www.law.umich.edu/
special/exoneration/Pages/casedetail.
aspx?caseid=4966 (last visited 2022).
 28.  Ru-El Sailor, nAt’l registry oF exonerAtions, 
https://www.law.umich.edu/special/
exoneration/Pages/casedetail.
aspx?caseid=5303 (last visited 2022).
The Reporter   x   2022 49


State of Ohio v. Wrongful Convictions

Norris, Jane

Hua, Zhiwei

How the Fair Housing Act Fails Individual Victims with Criminal Convictions

DalPorto, Danielle

Eviction Sealing

Yeack, Hannah

Case Western Reserve Social Justice 
Law Center: Reporter 
Volume 2022 Article 3 
2022 
Review: Domestic Terrorism in the United States 
Hannah Yeack 
Follow this and additional works at: https://scholarlycommons.law.case.edu/sjlcr 
 Part of the Civil Rights and Discrimination Commons 
Recommended Citation 
Yeack, Hannah (2022) "Review: Domestic Terrorism in the United States," Case Western Reserve Social 
Justice Law Center: Reporter: Vol. 2022, Article 3. 
Available at: https://scholarlycommons.law.case.edu/sjlcr/vol2022/iss1/3 
This Essay is brought to you for free and open access by Case Western Reserve University School of Law Scholarly 
Commons. It has been accepted for inclusion in Case Western Reserve Social Justice Law Center: Reporter by an 
authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 
The problem
One of the most pressing issues facing United States’ national 
security today is rising domestic terrorism, as demonstrated by 
the attack on the nation’s capital on January 6, 2021. There is 
disagreement in the legal community about how best to address 
the issue of domestic terrorism.1 One of the most popular routes 
that has been proposed is creating a federal domestic terrorism law. 
This comment reviews a law review article on the issue of domestic 
terrorism which suggests a federal domestic terrorism law is the 
best course of action.2 The main argument presented in the article 
advocates for a federal law to maintain continuity and clarity of 
the United States’ stance on domestic terrorism, and to increase 
efficacy of enforcement. The article fails, however, to fully consider 
the impact of law enforcement culture, and the risk of borrowing 
language from existing foreign-terrorism laws and incorporating 
them into a domestic terrorism law.
As it stands today, no uniformity exists in domestic terrorism laws in 
the United States, with each state adopting its own definitions and 
consequences of domestic terrorism. This lack of uniformity causes 
several problems, including 1) an inability to accurately track and 
measure acts of domestic terrorism due to inconsistent definitions 
and charges;3 2) an inability to study and understand why and how 
domestic terrorism is born;4 and 3) perhaps most important, a lack 
of uniformity in charging, prosecuting and sentencing perpetrators 
of domestic terrorism.5 Further, most of the current state laws do 
not include acts of violence committed with guns or cars, as these 
are not considered to be “weapons of mass destruction.”6 Under 
this framework, domestic terror attacks such as the 2015 arson of 
a mosque while Muslims prayed inside7 and the 2018 gun massacre 
at a synagogue which killed 11 people8 are often charged as hate 
crimes instead of domestic terrorism, with charges dropping as low 
as disruption of the peace in some cases.9
The issue is not ultimately if the offenders face charges, but rather 
how—and to what degree—law enforcement charges them. 
Creating a federal domestic terrorism law would be a great first step 
in addressing this issue, but is only part of the solution and must 
not be relied upon to remedy the entire issue.
The remainder of this comment discusses the pitfalls of instituting a 
federal law without being critical first of how the law is created and 
second of how the law enforcement culture will affect the practical 
implications of any law created. This comment asserts that to make 
a meaningful change in domestic terrorism in the United States, the 
federal government must review and rework its current terrorism 
laws and then implement a federal domestic terrorism law in light of 
its new framework, while simultaneously facilitating an overhaul of 
internal policing policies and culture.
A new law
If the United States were to revamp its current foreign terrorism 
laws into a new domestic terrorism law, there would be a significant 
concern about civil liberties. American citizens have already faced 
versions of this in the past through the Uniting and Strengthening 
America by Providing Appropriate Tools Required to Intercept and 
Obstruct Terrorism Act (USA PATRIOT Act) that followed 9/11,10 
and even earlier through Japanese internment camps.11 The federal 
government has expanded its definition of terrorism to include 
domestic terrorism under the USA PATRIOT Act, but did so by creating 
an overbroad definition without taking actual steps to address 
domestic terrorism.12 Under the executive branch, The National 
Security Council developed and published a National Strategy for 
Countering Domestic Terrorism in June of 2021. But such publications 
are only statements of policy that have no real effect on national law.13 
Notably, in a foreword from President Biden, the publication referred to 
REVIEW:
DOMESTIC
TERRORISM
IN THE UNITED STATES
By Hannah Yeack
8  x  Case Western Reserve University School of Law   x   Social Justice Law Center
gun violence as domestic terrorism, when, as 
mentioned above, offenses committed by use 
of guns are rarely labeled as terrorism at the 
state level. 
The enforcement—and even the conception 
of—a new federal domestic terrorism 
law is riddled with issues. Enforcement 
is a vital part of any law though. Without 
enforcement, a law, regardless of how well 
it is written, is obsolete. The United States 
needs a domestic terrorism law that is 
properly enforced as there is a legitimate 
concern of non-governmental threats 
to citizens’ safety. A society must have 
rules and these rules must be enforced to 
maintain peace. The issue is that the current 
American scheme for foreign terrorism does 
not do this while also respecting human 
rights.14 Should the government extend 
this to its own citizens, the human rights 
of Americans—particularly Muslims and 
minorities—would be on the chopping block. 
The issue becomes a balancing act of how 
much power citizens wish to give to the 
government, and how much power they 
wish to reserve for themselves. Put simply, 
do American citizens want the person who 
is pointing a gun at them to wear a uniform 
or plain clothes?
The Icelandic Human Rights Center (“The 
Center”) advocates for terrorism to be 
fought “within the framework of the 
law and with respect for the principle of 
proportionality and non-discrimination.”15 
The Center argues that there is no trade-
off between effective government action 
combating terrorism and respect for human 
rights, unlike the current United States’ 
government believes.16 Instead, The Center 
asserts counter-terrorism acts to best 
take form in promoting societal cohesion, 
multicultural tolerance and inter-religious 
dialogue.17 The Center’s proposal is that for 
a world without terrorism, there needs to 
first be a world rooted in acceptance and 
tolerance.
A changed culture 
If the legislature only creates a federal 
statute and does not address law 
enforcement culture, multiple problems will 
arise, and even more will be left untreated. 
By only creating a statute, the culture of 
law enforcement, which is widely known 
to facilitate racist and xenophobic double 
standards while, in too many cases, openly 
supporting white nationalistic behavior,18 
will go unchanged. Without a cultural shift in 
America’s law enforcement agencies, there 
is a risk, based on a long history of abuse 
of power,19 that enforcement agencies will 
use any new laws to target minorities and 
those viewed as “others,” even if the laws 
are created to target white supremacist 
organizations.20 
Law enforcement has significant ties 
to far-right and to white supremacists 
organizations.21 This is not by accident. 
Organizations, such as the Oath Keepers,22 
explicitly target law enforcement and ex-
military personnel in their recruitment.23 
These ties are suspected, in part, to be the 
reason the FBI and Homeland Security did 
not release a threat report before the January 
6 attack on the capitol.24 The logic being that 
law enforcement does not view people who 
look and possibly think like them to be a 
threat,25 creating a blind spot to terrorism 
even among top federal agencies. This is not 
a quality unique to law enforcement,26 but it 
is something the nation needs to be aware of 
as it makes policy based on predictions and 
assumptions surrounding what cops do and 
might do. 
Oftentimes in legal theory, good cops are 
assumed. Despite the current political 
climate, it is impractical to assume all good 
or all bad cops. The profession is made up of 
a vast array of individuals so, like any large 
group, stereotypes do not cover all of the 
people who make up the United States’ police 
force. The danger of the current policing 
system is that even those who are neutral 
and good are blemished by the repugnant 
lack of accountability for their actions.27 
Regardless of whether the wrongs are 
mistakes or are intentional, there are rarely 
repercussions at all, much less proportional 
repercussions, for actions with horrifying 
consequences for the general public.
Nearly 40% of cops are predicted to have 
committed an act of domestic violence.28 
In fact, domestic violence is two to four 
 continued on next page >
REVIEW:
DOMESTIC
TERRORISM
IN THE UNITED STATES
By Hannah Yeack
times more likely in police families than the 
average American family.29 When the victims 
in these cases report the violence, the case 
is handled informally, something that would 
rarely happen for a case where the offender 
is a civilian. There is often no official report, 
investigations, and most shocking, no check 
on the victim’s safety.30
If our law enforcement systematically fails 
to hold “their own kind” accountable for 
individualized violence, there is doubt as 
to whether law enforcement would hold 
domestic terrorists accountable under 
any law. While white supremacist groups 
may be more than comfortable, oppressed 
groups may end up being the ones suffering 
the weight of the law if police attempt to 
misappropriate the law.
Domestic terrorism is one of the most 
complex issues facing the United States’ 
legal world today. The ramifications of any 
potential laws imposed, or not imposed, 
include the lives of many—both in quality 
of life and, in some cases, continuation 
of life. Creating a federal law is the best 
path forward, but all steps must be taken 
carefully and thoughtfully by those involved. 
Domestic terrorism is a long-term, complex 
problem that requires a long-term and 
complex solution.
 1.  Seth Jones et al., The military, police, and the 
rise of terrorism in the United States JSTOR 
(2021), https://www.jstor.org/stable/pdf/
resrep31136.pdf?acceptTC=true&coverpage=f
alse&addFooter=false. 
 2.  Nicole Anderson, Exploring the Viability of a 
Federal Domestic Terrorism Statute, Gonzaga 
Law Review (2020). 
 3.  Id. (Many acts of domestic terrorism 
ultimately end up getting charged and 
prosecuted as other crimes such as hate 
crimes. This also leads to less vigorous 
prosecution since the FBI’s first stated 
priority is terrorism, not hate crimes.)
 4.  Id.
 5.  Id.
 6.  Id.
 7.  Anna Rumer, Man, 23, arrested in 
suspected arson-hate crime at Coachella 
Mosque The Desert Sun (2016), https://
www.desertsun.com/story/news/local/
coachella/2015/12/11/structure-fire-
coachella-may-mosque/77166120/ (last 
visited Apr 5, 2022). 
The Reporter   x   2022 9
 8.  Campbell Robertson, Christopher Mele & 
Sabrina Tavernise, 11 killed in synagogue 
massacre; suspect charged with 29 counts 
The New York Times (2018), https://www.
nytimes.com/2018/10/27/us/active-
shooter-pittsburgh-synagogue-shooting.
html (last visited Apr 5, 2022).
 9.  Man stabs worshiper near Simi Valley 
Mosque in hate crime, police allege, Los 
Angeles Times (2016), https://www.latimes.
com/local/lanow/la-me-ln-simi-valley-
mosque-stabbing-20161211-story.html (last 
visited Apr 5, 2022). 
 10.  How the USA PATRIOT act redefines 
“Domestic terrorism”, ACLU, https://www.
aclu.org/other/how-usa-patriot-act-
redefines-domestic-terrorism (last visited 
Apr 18, 2022). 
 11.  Michael O. Tunnell, The Children of Topaz: The 
Story of a Japanese-American internment 
camp (1996). 
 12.  How the USA PATRIOT act redefines 
“Domestic terrorism”, ACLU, https://www.
aclu.org/other/how-usa-patriot-act-
redefines-domestic-terrorism (last visited 
Apr 18, 2022). 
 13.  Fact sheet: National strategy for countering 
domestic terrorism, The White House (2021), 
https://www.whitehouse.gov/briefing-
room/statements-releases/2021/06/15/
fact-sheet-national-strategy-for-countering-
domestic-terrorism/ (last visited Apr 20, 
2022). 
 14.  Human Rights and Terrorism, Icelandic 
Human Rights Centre, https://www.
humanrights.is/en/human-rights-education-
project/human-rights-concepts-ideas-and-
fora (last visited Apr 6, 2022).
 15.  Id.
 16.  Id. 
 17.  Id. The UN Global Counter-Terrorism Strategy, 
adopted in 2006, reaffirmed the importance of 
respect for human rights for all, international 
humanitarian law and the rule of law as 
the fundamental basis for the fight against 
terrorism. The UNGA elaborated on this 
position in Resolution 63/185 (2009).
 18.  Michael German, Hidden in plain sight: 
Racism, white supremacy, and far-right 
militancy in law enforcement Brennan 
Center for Justice (2020), https://www.
brennancenter.org/our-work/research-
reports/hidden-plain-sight-racism-white-
supremacy-and-far-right-militancy-law 
(An astounding amount of law enforcement 
is known to be tied to white supremacist 
ideology and violent crime. Notably, these are 
the known, many more could and likely are 
lurking.)
 19.  Id. 
 20.  Nicole Anderson, Exploring the Viability of a 
Federal Domestic Terrorism Statute, Gonzaga 
Law Review (2020) at 136. (“Calling Islamist 
attacks ‘terrorism’ in court, but not doing 
the same for white supremacist attacks, is a 
racist double standard that undermines such 
trust”).
 21.  Odette Yousef et al., Active-duty police in 
major U.S. cities appear on purported oath 
keepers rosters NPR (2021), https://www.
npr.org/2021/11/05/1052098059/active-
duty-police-in-major-u-s-cities-appear-on-
purported-oath-keepers-rosters (last visited 
Apr 18, 2022). 
 22.  The Oath Keepers are a far-right extremist 
organization that works to form quasi-
militias as part of a larger anti-government 
movement. See Oath keepers, Anti-
Defamation League, https://www.adl.org/
resources/backgrounders/oath-keepers.
 23.  Odette Yousef et al., Active-duty police in 
major U.S. cities appear on purported Oath 
Keepers’ rosters NPR (2021), https://www.
npr.org/2021/11/05/1052098059/active-
duty-police-in-major-u-s-cities-appear-on-
purported-oath-keepers-rosters (last visited 
Apr 18, 2022).
 24.  Dina Temple-Raston, Why didn’t the FBI and 
DHS produce a threat report ahead of the 
Capitol Insurrection? NPR (2021), https://
www.npr.org/2021/01/13/956359496/why-
didnt-the-fbi-and-dhs-produce-a-threat-
report-ahead-of-the-capitol-insurrect (last 
visited Apr 20, 2022). 
 25.  Id.
 26.  Seth Jones et al., The military, police, and the 
rise of terrorism in the United States JSTOR 
(2021), https://www.jstor.org/stable/pdf/
resrep31136.pdf?acceptTC=true&coverpage=f
alse&addFooter=false. 
 27.  Rodney Green & Jillian Aldebron, In Search of 
Police Accountability: Civilian Review Boards 
and Department of Justice Intervention JSTOR 
(2019). 
 28.  Joshua Klugman, Do 40% of police families 
experience domestic violence? (2020), https://
sites.temple.edu/klugman/2020/07/20/do-
40-of-police-families-experience-domestic-
violence/ (last visited Apr 24, 2022). 
 29.  Conor Friedersdorf, Police have a much 
bigger domestic-abuse problem than the 
NFL does The Atlantic (2014), https://www.
theatlantic.com/national/archive/2014/09/
police-officers-who-hit-their-wives-or-
girlfriends/380329/ (last visited Apr 5, 2022). 
 30.  Richard A Berk et al., Bringing the cops back 
in: A study of efforts to make the criminal 
justice system more responsive to incidents 
of family violence Social Science Research 
(2004), https://www.sciencedirect.com/
science/article/pii/0049089X80900113 (last 
visited Apr 20, 2022).
10  x  Case Western Reserve University School of Law   x   Social Justice Law Center


Review: Domestic Terrorism in the United States

Mofuoa, Khali

A Mosotho Model of Ethical Leadership

Sfagra, Mike

Eicken, Hajo

Babin, Marcel

Climate Change\u27s Profound Disruption of the Arctic Proceedings of the 45th Canada-United States Law Institute Annual Conference - Climate Change and the Arctic: Profound Disruption, Uncertain Impact

CUSLJ

Canada-United States Law Journal 
Volume 46 Issue 1 Article 4 
2022 
Welcome and Opening of the 45th CUSLI Annual Conference 
CUSLJ 
Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj 
 Part of the Transnational Law Commons 
Recommended Citation 
CUSLJ, Welcome and Opening of the 45th CUSLI Annual Conference, 46 Can.-U.S. L.J. 12 (2022) 
Available at: https://scholarlycommons.law.case.edu/cuslj/vol46/iss1/4 
This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University 
School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an 
authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 
12 CANADA-UNITED STATES LAW JOURNAL [Vol. 46, 2022]
WELCOME AND OPENING OF THE 45TH
CUSLI ANNUAL CONFERENCE
MR. STEPHEN PETRAS: Well, good morning, everyone. Welcome to the
annual conference of the Canada United States Law Institute in its 45th year. On
behalf of our co-chairs, Jim Peterson and Jim Blanchard, our Canadian National
Director Chios Carmody, and our Managing Director, Ted Perrin, we welcome
you to this interesting analysis of the Arctic. I’m Steve Petras, the US National
Director of the Canada/US Law Institute. I will be keeping us on schedule today.
We have a lot of interesting people to hear from, and issues to discuss with limited
time to do it all. So please forgive me if I interrupt things. Also, please keep your
video and microphones on off during the conference. That does not mean,
however, that you should not ask questions, you definitely should ask questions.
And to do so, use the Q&A function at the bottom of your Zoom screen. Ted will
be monitoring your questions and we’ll provide them to the moderators of the
panels. We have an outstanding program today. And there are Continuing Legal
Education credits for those seeking them. The CLE activity code will be presented
at the end of the conference at 5pm. The Canada United States Law Institute is a
joint institute of CASE Western Reserve University School of Law and the
University of Western Ontario Faculty of Law. It was started in 1976 by Professor
Sidney Picker here at CASE Law School. The Institute has two presidents, being
Dean Erika Chamberlain of the University of Western Ontario Faculty of Law,
and Co-Dean Michael Scharf of Case Western Reserve University School of Law.
Both will now launch this conference. Michael, over to you.
DEAN MICHAEL SCHARF: Thank you so much, Steve. Well, good
morning. As Steve said, I’m Michael Scharf. Since 2013, I’ve been the Co-Dean
of CASE Western Reserve University School of Law. And, as part of that position,
I’m also the President-Co-President-of the Canada-U.S. Law Institute, which we
all call CUSLI. As a specialist in international law, I’m extraordinarily happy to
welcome you all to today’s Canada/US Law Institute conference, Climate Change
and the Arctic: Profound Disruption, Uncertain Impact. Our expert panelists and
distinguished keynote speakers will cover issues ranging from the transformative
changes that are taking place in the Arctic, to emerging national security issues, to
opportunities for economic growth and the need for regulation, to the impact on
the role of Indigenous peoples. Our presenters from government, academia, and
industry, will engage the audience in much needed dialogue on these issues.
Unfortunately, we couldn’t be in person this year. And last year, we had to cancel
the conference because of the pandemic. But the benefit of the virtual format is
that we have over 260 registered participants from all parts of the world joining us
live, and on a normal year, we can only fit about 100 into our moot courtroom.
The Sheri
dan Press
Proceedings of the 45th Canada-United States Law Institute Annual Conference 13
As Steve said, CUSLI was launched in 1976 as a joint creation of Western
Ontario Law and CASE Western Reserve University School of Law. In a minute,
I will turn things over to Erika Chamberlain, the Dean of our partner school who
serves as Co-President of CUSLI. Case Western is very proud to host our 45th
annual CUSLI conference. We’ve had Supreme Court Justices, ambassadors,
ministers, governors, business leaders, and prestigious academics speak at past
CUSL conferences, and today’s lineup is as impressive or more than any before.
CUSLI is an important part of CASE Western’s international law program, which
was ranked this spring as a top 10 international law program in the United States
by Pre-Law Magazine, and number 16th best out of 200 by US News and World
Report. Through CUSLI, our law school has developed a niche that has brought
some amazing Canadian students to study in our corridors and classrooms,
including Francois-Phillipe Champagne, the former Foreign Minister of Canada,
and Rosemary McCarney, the former Canadian Ambassador to the United
Nations. CUSLI’s success is due in large part to the engagement of its impressive
executive committee, who I’m honored to introduce to you at this time. In addition
to Erika and me, the committee includes, as Co-Chair, the Honorable Jim Peterson.
He’s a partner at Fasken Martineau. He’s formally Canadian Minister of
International Trade, formerly Secretary of State, and formerly a Canadian Member
of Parliament. The other Co-Chair is the Honorable Jim Blanchard. He’s a partner
at DLA Piper, he was formerly Governor of Michigan, and formerly United States
Ambassador to Canada. Also on the committee, we have Richard Cunningham,
partner at Steptoe & Johnson, known widely as the Dean of the US International
Trade Bar. We have Professor Diane Francis, the Ted Rogers School of
Management at Ryerson University, who is Editor-at-Large of the National Post.
We have James Graham, Executive Vice President and Chief Legal Officer and
Secretary of Cleveland Cliffs. We have Larry Herman, of Herman & Associates,
and Senior Fellow at the Howell Institute. He was formerly a member of Canada’s
mission to the UN and to the GATT and counsel for Canada in the International
Court of Justice. We have Salma Luxenberg. She is the Canadian co-chair of the
NAFTA 2022 Advisory Committee, formerly Vice President and General Counsel
and Corporate Secretary of the Greater Toronto Airports Authority. We have Peter
Gordon MacKay, partner at Baker & McKenzie, formerly Canadian Attorney
General and Minister of Justice and formerly Minister of National Defense and
Minister of Parliament. We have Richard Newcomb, a partner and head of DLA
Piper’s international law practice, formerly Director of the Office of Foreign
Assets Control at the US Treasury Department. We have Raul Rosato, the Vice
President and Chief Legal Counsel of North America and Europe for the Formica
Group. And we have Dr. Christopher Sands, the director of the Candidate Institute
at the Woodrow Wilson International Center for Scholars and Senior Research.
He’s also a Senior Research Professor at Johns Hopkins University, the Paul Knits
School of Advanced International Studies known as SIS. Now we also have the
three directors who are super important to the success of CUSI. Steve already
mentioned them. But again, it’s Professor Chios Carmody, the Canadian National
Director and associate professor of the Faculty of Law at the University of Western
Ontario. We have Steve Petras, United States National Director and Director of
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14 CANADA-UNITED STATES LAW JOURNAL [Vol. 46, 2022]
the Frederick K. Cox International Law Center at CASE Western. And finally, the
glue that holds the organization together, Ted Parran, the managing director of
CUSLI. I know that’s a long list, but I wanted you to see how impressive the people
are that organize these conferences and make this organization work. And please
join me in giving a great hand of gratitude to the members of the Executive
Committee. It is now my pleasure to turn things over to my Co-President, Dean
Erika Chamberlain.
DEAN ERIKA CHAMBERLAIN: Thanks very much, Michael. And on
behalf of the Canadian partner of CUSLI, it’s my pleasure to welcome you here
virtually to this annual conference. As has been said, this is a long-standing
partnership between our universities, and I’m delighted that it continues to thrive.
I’m especially happy this year that the virtual format has made the conference
more accessible to a Canadian audience who might not normally make the trip to
Cleveland. For those of you who are not familiar with the University of Western
Ontario Faculty of Law or Western Law, as we like to call it, we are located in
London, Ontario, which is one or two hours from the border depending on which
bridge you cross. We have a strong and growing group of international law
researchers including experts on trade and conflict of laws, as well as a strong
international law internship program that allows our students to get first class
experiences in offices of the United Nations, the WTO, the World Bank, and a
range of international organizations. Western law hosts the Canada US law
Institute’s annual Distinguished Lecture, which features leading diplomats,
academics or journalists speaking on topics related to Canada/US relations. Just
this spring, we hosted Colin Robertson, vice president of the Canadian Global
Affairs Institute, who spoke about working with the Biden administration from a
Canadian perspective. We also host several events geared to students which
compare Canadian and American approaches to issues like cannabis legalization,
law enforcement, and of course now COVID restrictions.
CUSLI hosts two premier events every year; an expert’s meeting in the fall,
which is usually hosted in Washington DC, and this annual conference, hosted by
CASE Western Reserve University School of Law. We aim to center these events
around pressing issues facing our two countries, and there are so many of them to
choose from right now. We’re already looking forward to our next year’s events
and are considering a number of topics, including US Canadian approaches to
China, market-based and economic development approaches to climate change,
and building a sustainable, resilient North America, which could include cross-
cutting issues like technology, climate change mitigation, rising geopolitical risk,
and social and economic equity. We welcome your feedback on these or other
topics you might be interested in so that we can build a terrific program like the
one we have for you today. On behalf of the Canada/US Law Institute, I’d also
like to recognize the very generous support of our conference sponsors. Our
platinum sponsor, DLA Piper, LLP. Our gold sponsors, Cleveland Cliffs, and the
Coleman P. Burke Center for Environmental Law at CASE Western Reserve
School of Law. Our bronze sponsors. Formica Corporation, Barrett in America,
Charles Schwab, Taft, Stettinius and Hollister and the Quebec Government Office
in Chicago. We’d also like to thank our event sponsor, the event partner, the
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Proceedings of the 45th Canada-United States Law Institute Annual Conference 15
Canadian Consulate in Detroit, and a number of community partners that help with
coordinating on speakers and promotion for this conference, the Woodrow Wilson
International Center for Scholars, the Polar Institute at the Wilson Center, the
Cleveland Council on World Affairs, the Greater Cleveland International Lawyers
Group, and the Northeast Ohio International Business Network. There’s a really
fantastic lineup of speakers and panelists on offer today, so I think you are in for
some really stimulating discussion. I hope you’re all staying safe and strong
wherever you are today. So I’ll turn it back over now to Stephen Petras. To
continue with the program.
Mr. PETRAS: Thank you very much, Erika and Michael. I do want to point
out to everyone that we will have a number of breaks during the course of today’s
conference. So there will be an opportunity for you to take a break from staring at
your computer screen.
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Welcome and Opening of the 45th CUSLI Annual Conference

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