Faculty Scholarship Digest

June 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

Mary Beth  Beazley

Mary Beth Beazley, Hiding in Plain Sight: “Conspicuous Type” Standards in Mandated Communication Statutes, 40 J. Legis. 1 (2013-14).

This article examines an anomaly of “mandated communication statutes,”—statutes that require “that certain information be conveyed in a certain way between certain parties.” Most of these statutes regulate either business to consumer communications or government to citizen communications. Examples run from the truth in lending act to statutes covering support payments following custody proceedings. The anomaly Mary Beth notes is that although these statutes are generally designed to “help the reader make informed decisions,” and they often dictate the language and prominence of the disclosure, “the emphatic devices that legislatures use serve only to allow readers to see that the information exists; they do not ensure that the reader can read, let alone understand, the relevant language.” The “Plain English” movement has not penetrated state legislatures as far as it might, and USE OF SUCH DEVICES AS ALL CAPS TO MEET CONSPICUOUSNESS REQUIREMENTS ACTUALLY UNDERMINES UNDERSTANDING OF ALL BUT THE SHORTEST COMMUNICATIONS.

After describing and detailing these problems, the article turns to the science of reader-comprehension and offers lessons from that literature for mandatory communication statutes. Document design, readability, and organizational signals are all well-researched areas from which appropriate legislative mandates can be drawn, and Mary Beth provides descriptions and examples. The article emphasizes that, in the context of mandatory communication statutes, putting the burden of comprehension on readers simply makes no sense.


Ruth  Colker

Ruth Colker, California Year in Review: 2013 Special Education ALJ Decisions, 34 J. Nat’l Ass’n Admin. L.J. 47 (2014).

One of Ruth Colker’s signature approaches to research is to closely examine a large set, typically a complete set or a complete set of those with published opinions over a designated period of time, in order to determine empirically (both by coding-and-counting and by qualitative analysis) how the statute or regulation actually operates in practice, and this article is another example of that approach. For this article, Ruth read seventy-four 2013 cases of California special education Administrative Law Judges. This followed a similar study Ruth conducted and published that examined ALJ decisions in the 2010-11 time period.

The resulting article is replete with insights. Perhaps not surprisingly, school districts win more than families, and families do better, much better, when they are represented by an attorney in front of the ALJ. Perhaps more surprisingly, when the students are represented by one parent, the results were significantly less favorable for the student when that parent was the mother than when it was the father. The conclusion that this difference results from bias against mothers was also supported by the limited weight the ALJ’s seemed to give maternal testimony. Also surprising was the success rate of students seeking an Independent Educational Evaluation (IEE) at public expense. Students prevailed almost two-thirds of the time---a much higher rate than Ruth found in her previous study, a difference she speculates may have been caused by a single California district court reversal of an ALJ on this issue during the intervening period which “may have caused California ALJs to be aware of the right of a parent to an IEE absent the school district’s ability to demonstrate that its evaluation was appropriate.” The power of a single decision to influence behavior is certainly suggestive. This is just a taste of the insights the study provides.


Anne E. Ralph

Anne E. Ralph, Not the Same Old Story: Using Narrative Theory to Understand and Overcome the Plausibility Pleading Standard, 26 Yale J.L. & Human. 1 (2014).

In this article, Anne proposes an ameliorative or even beneficial approach for addressing the Supreme Court’s recent requirement of heightened pleading standards: conscious application of narrative theory to draft “plausible” complaints. As the article explains, in the Twombly (2007) and Iqbal (2009) cases, the Supreme Court effectively raised the standard required for a complaint in federal court to survive a motion to dismiss from the long-standing “notice pleading” to a more difficult “plausibility pleading.” Academics have harshly criticized this shift on many grounds, substantively including the “Catch-22” difficulty for plaintiffs of needing facts to survive pleading but needing to survive pleading to discover facts, the subjectivity and malleability of the “plausibility standard,” and the extent to which it narrows access to justice, particularly for discrimination claims. Anne argues that the new plausibility standard is an implicit call for better use of narrative in complaints, and that, with conscious application of narrative theory to their complaints, plaintiffs can circumvent the pitfalls described above.

The article provides as careful a tour of narrative theory as it does of the heightened pleading rules in order to describe what makes a narrative persuasive. In particular, Anne highlights and describes narrative coherence, narrative correspondence, and narrative fidelity. With this background, the article details how narrative theory can resolve the problems posed by the plausibility standard. The explanation comes first in the abstract and then with examples from five cases decided under the plausibility standard. To summarize this discussion by saying effective story-telling can be crucial to a complaint’s survival does not do the discussion justice, but will have to suffice here. A final section addresses some potential criticisms of such story-telling complaints---that they may unduly narrow a plaintiff’s claim or provide too much fodder for defendants---and finds them inapt. While conceding that “narrative may not receive explicit acceptance in the terms this article proposes,” given law’s longstanding hostility to elements that could be seen to diminish its objectivity, Anne demonstrates that such recognition is not necessary for its principles to aid litigants and courts.


Report

tokaji_dan

Daniel P. Tokaji & Renata E. B. Strause, The New Soft Money (2014).

This important and widely-noted 106-page report, a project of Election Law @ Moritz, provides fresh and important information about the nature and impact of the explosion of independent spending in federal campaigns since Citizens United. Dan and his co-author conducted an extensive series of in-depth interviews with actors from all sides and all roles in the process, including candidates and Members of Congress, campaign operatives and those involved with independent groups. The intention of the report is to provide crucial information for understanding the manner in which the controversial new world is operating. The report uncovers a remarkable degree of consensus about some of the changes wrought by this new spending, albeit with disagreement about whether these changes are a good or bad thing. In addition, the elegant report includes a history of campaign spending and regulation and a detailed description of the “independent spending” in 2012.

The interviews identified four different types of groups engaged in independent spending, and Dan and his co-author examine the characteristics of each. All agree that the ultimate source of much of campaign funding is increasingly unknown, but some think the solution is increased disclosure, while others think the solution is to loosen restrictions on parties and candidates. In terms of the impact on campaigns, it is clear that this spending creates uncertainty and makes message discipline much more difficult (often as a result of the “dirty work” of negative ads) for campaigns, and that there is often cooperation between the independent groups and the campaigns, though through publicly-transmitted signals, rather than the “coordination” barred by federal law. The report discovered no direct evidence of quid pro quo corruption from this spending, but it did find evidence of enhanced access and influence for outside groups, particularly through implied threats of spending “if legislators do or don’t act in accord with the wishes of outside groups.” The report also finds increased time spent fundraising, deteriorating relationships between legislators and parties and loss of public trust as indirect effects of the new spending. A final section looks at the relevance of these findings to current policy debates and outlines pathways for further research.