Faculty Scholarship Digest

September 2014

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Articles

colker.2

Ruth Colker, Special Education Complaint Resolution: Ohio, 29 Ohio St. J. on Disp. Resol. 371 (2014).

Families contending that their child’s school district is not complying with the Individuals with Disabilities Act (“IDEA”) have two main pathways for asserting their claim. The first is to seek an impartial due process hearing with the child’s school, an administrative remedy that is a mandatory precursor to seeking relief in court. Such due process hearings have received scholarly attention, including extensive study by Professor Colker. The second pathway is a state administrative complaint, which the state resolves without a hearing. For this article, Ruth read and assessed eighty-one Ohio administrative complaints in order to compare the outcomes from that process to that obtained through due process hearings.

In Ohio, the article concludes, the administrative process is more professional, more likely to lead to some remedy for the family and faster. On the other hand, the administrative process is the “last word,” there is no judicial review, and the broadest forms of relief are unlikely to be awarded through the administrative process. The article closely analyzes the different outcomes in administrative and due process proceedings and the reasons for those differences, some of which are particular to the state level structure of these processes, making broader generalization difficult.


Lawrence  Herman

Lawrence Herman, Gideon and the Golden Thread, 99 Iowa L. Rev. 2015 (2014).

In this article, part of symposium on Gideon at 50, Larry addresses the problems of implementation of Gideon’s promise of defense counsel in all felony cases, which has been undermined by a “toxic combination of underfunding, excessive caseloads, and lack of parity” with the resources of prosecutor’s office. The article begins with a review of Professor Herbert Packer’s well-known description of two normative models for the criminal justice process: the crime control model and the due process model. Writing in the late 1960's, Professor Packer, Larry recalls, noted that Gideon’s requirement of provision of counsel for the defense amounted to a normative endorsement of the due process model, but that court rulings “do not alone determine the shape of the criminal process.” “Other institutions,” particularly those that provide criminal justice funding, are also crucial, Professor Packer “precient[ly] not[ed].”

With this background, the article recalls two cases from Larry’s experience as a JAG officer: one in which, as the prosecutor, he did not press his case to its limits and a just acquittal resulted; the other in which, as the defense attorney, he had access to discovery and investigatory resources equal to the prosecution (in part by the culture of the process, which results in part from the regular movement back and forth of JAG officers between prosecution and defense) that resulted in a just acquittal. Drawing on this experience, the article turns to suggestions for delivering on Gideon’s promise, modeled on the JAG system. Larry proposes creation of Departments of Justice at the state level with oversight over both public prosecution and defense. The State Department of Justice, and two subsidiaries, the State Public Defender Commission and the State Prosecution Commission would be co-located to encourage interaction, the charter would include a goal of parity of resources, transfer between sides would be permitted and encouraged following thirty months of service, and neither prosecutors nor defense counsel could be appointed or elected to the bench until two years after leaving their public prosecution/defense position. The article proposes that, without a pie-in-the-sky level of new funding, these structural changes could bring the system much closer to fulfilling Gideon’s promise.


Books

beazley_mary-beth

Mary Beth Beazley, A Practical Guide to Appellate Advocacy (4th ed. 2014).

Mary Beth’s leading text on Appellate Advocacy is now in its Fourth Edition. This latest version of the book maintains the elements that have made is such a success, including its process-based approach, and its patented Beazley tips and techniques, while also enhancing its traditional interdisciplinary strength—applying research from psychology and the humanities to appellate advocacy. The new edition also adds substantial coverage regarding the impact of technology on appellate advocacy.


beazley_mary-beth

Mary Beth Beazley & Monte Smith, Legal Writing for Legal Readers (2014).

This legal analysis and writing text uses the reader’s perspective to convey the substance of excellent legal writing. From first chapter to last, the elegance and clarity of the work challenges the summarizer because the book sets a standard that stays front-of-mind and proves difficult to match. The book uses examples—both good and bad, plain and annotated—as explanatory tools for every topic it covers, but those examples are consistently surrounded with clear and enlightening text that convey the essence and the skill of legal reasoning and legal writing. The reader is left confident, even excited, about the prospect of learning and then mastering these skills.

Roughly the first half of the book covers elements of legal analysis, such as reading cases and statutes, discovering authority, the meaning of rules and facts, and the structure of legal analysis. The second half takes the reader, now set with these ingredients, through the preparation of all manner of legal documents, starting with the basic research memorandum and covering correspondence, complaints, demand letters and motion memoranda. The authors integrate discussion of the legal thinking portion of creating such documents, with the documents’ formal expectations and with guidance on the skill of writing them. A final chapter gives special attention to the technique of persuasion.


shane.29

Peter M. Shane (w/ Jerry L. Mashaw et al.), Administrative Law: The American Public Law System Cases and Materials (7th ed. 2014).

Peter’s leading casebook in the Administrative Law field has added three new co-authors from Stanford and Yale and nearly two hundred pages, bringing the total text to more than 1,600 pages. This is the seventh edition of this important authority in this ever-changing field; no doubt the first edition would now be only faintly recognizable. This edition separates the subjects of the scope of judicial review and its availability into two separate chapters and gives an entirely separate chapter to the alternative remedies of suits for money damages and private suits to enforce public law. Of the nine chapters, Peter is the author of two (“Executive Supervision of Administrative Action” and “Government Information Acquisition and the Pursuit of Open Government”) both of which draw on his other fields of research, and co-author of two others.

Among the new material the book includes is a section Peter created regarding the evolving ideal of open government. The modern open government movement traces back to the 1966 campaign for the Freedom of Information Act, and the value of openness for the administrative state is “enthusiastically endorsed across the political spectrum.” The new section explores this value in two contemporary forms: (i) the so-called “open data” movement which makes government data sets available with advantages not only of accountability, but also potentially of engagement and efficiency, but potential disadvantages of cost and actually diminishing openness; (ii) the government’s use of interactive media, in particular with regard to the manner in which “pre-digital laws may hamper” such use, and some of the administrative and philosophical challenges facing agencies seeking to use interactive media to engage the public with the agency’s work.