Faculty Scholarship Digest

February 2016

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

Amna Akbar

Amna A. Akbar, Law’s Exposure: The Movement and the Legal Academy, 65 J. Legal Edu. 352 (2015).

This article, part of a symposium on Ferguson and its impact on legal education, issues a call for opening up the law school classroom (including in doctrinal classes) to “ambitious reinvestigation of law.” This includes expressly addressing “law’s relationship to race, gender, sex, and capitalism,” identifying law's role in enforcing hierarchies and widespread inequality, and expressly addressing how “change happens when people demand something different and when they insist by whatever means at their disposal that their demands will be heard.”

Amna’s piece begins by describing her experience and awakening in working with young people involved in the Movement for Black Lives and her resulting thought process regarding the role of law in social change and, in turn, about how we teach law. The article discusses the Movement and its implicit claim that law in practice works to devalue black life and that organizing, disrupting, and contesting are a crucial part of bringing change, rather than relying on law alone to bring such change. This rich discussion then turns to implications in the classroom, covering a number of points and approaches. For example, Amna points to the traditional “purposes of punishment” that most Criminal Law classes study at the start of the semester. Why, she asks, simply teach the utilitarian and retributive theories of Bentham and Kant and their successors? The criminal justice system does a lot more than “deter crime . . . and punish wrongdoers.” A substantial literature of punishment-in-practice demonstrates that the social function of punishment encompasses much more, and that whom we punish and why are tied to “race, gender, class, the politics of fear, and the decline of the social welfare state.” Bringing such discussions into the classroom is not comfortable, Amna concedes, both because the conversations themselves can be uncomfortable and because of the challenge to the legitimacy of the view of law as a neutral and beneficial mechanism. Yet, she argues, we must get uncomfortable at times in order to show these forces that are “so central to law’s operation,” and the article offers a number of concrete suggestions for how to do so.


Deborah Jones Merritt

Deborah Jones Merritt, What Happened to the Class of 2010? Empirical Evidence of Structural Change in the Legal Profession, 2015 Mich. St. L. Rev. 1043 (2015).

Law schools publish detailed data about employment of their recent graduates, but few studies track longer-term career outcomes for lawyers. In this article, Debby reviews the existing literature and then presents the results of a novel empirical study she conducted. That study offers an intriguing perspective on the early careers of lawyers recently admitted to the Ohio bar; it also creates a template for future studies exploring job outcomes among law school graduates.

Consistent with other reports, Debby finds that lawyers admitted to the Ohio bar in 2010 are less likely than earlier licensees to work in private law firms or hold other jobs requiring bar admission. She also documents significant gender differences in the jobs held by these recently admitted lawyers: Men are significantly more likely to hold law firm positions, while women are significantly more likely to pursue government or public interest jobs. This pattern, she notes, revives earlier gender distinctions that had started to erode before 2010. Debby reveals, finally, that the Ohio legal market is strongly regional. Four-fifths of all new Ohio lawyers graduate from an Ohio law school, with most of the remainder coming from schools located in Indiana, Michigan, West Virginia, and Kentucky. As the highest-ranked law school in Ohio, Moritz enjoys advantages in placing its graduates within that market.


Christopher J. Walker

Christopher J. Walker (w/ Aaron L. Nielson), The New Qualified Immunity, 89 S. Cal. L. Rev. 1 (2016).

With funding from Moritz’s Center for Interdisciplinary Law and Policy Studies, Chris and a coauthor (Professor Aaron Nielson of Brigham Young University Law School) compiled a database of more than 800 appellate decisions addressing qualified immunity. In this article, the two use their exhaustive database to examine the impact of a seminal Supreme Court decision, Pearson v. CallahanPearson established a rule that allows courts to avoid constitutional issues when adjudicating a claim of qualified immunity: If the asserted right was not clearly established at the time of the alleged violation, then the court need not decide whether the right actually exists. Through their careful empirical analysis, Chris and his coauthor conclude that this rule impairs the development of constitutional law in several ways. To remedy the defects, they urge the Supreme Court to require lower courts to articulate more fully the reasons they find that a right was not clearly established at the time of the alleged violation. This requirement would resemble—but not fully duplicate—the “reason-giving requirements” of administrative law.

In a public review of Chris and Aaron’s work, Professor Nancy Leong concluded that this article “is a gift, beautifully packaged, for those of us who write about constitutional litigation.” As Leong notes, the article also “provides a great example of how legal scholarship simultaneously may be of great use to legal scholars, judges, and practitioners—there is no conflict among the various audiences for such a piece.” Chris and his coauthor deftly combine theory, empirical analysis and a thoughtful remedy in a way that will inform all audiences. And luckily for all of us, the gifts will keep coming: Chris and his coauthor are already finalizing a second paper based on their database. The new work will examine the influence of appellate panel composition and publication decisions in qualified immunity cases—both questions that have long intrigued scholars and practitioners.