Faculty Scholarship Digest

July 2009

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.


Douglas A. Berman

Douglas A. Berman, Should Juries be the Guide for Adventures through Apprendi-land?, 109 COLUM. L. REV. SIDEBAR 65 (2009).

This essay is a response to David Ball’s article in the Columbia Law Review, Heinous, Atrocious and Cruel: Apprendi, Indeterminate Sentencing and the Meaning of Punishment. In Apprendi and its progeny, particularly Blakely v. Washington, the Supreme Court thoroughly upset the apple cart of criminal sentencing by finding a constitutional mandate that facts which raise the maximum sentence must be found by a jury.

As described by Berman, Ball’s article endorses Apprendi and urges greater respect for the founding era conception of juries so that, as Berman describes Ball’s position, jurors should serve as “community representatives who are well-positioned to make moral, retributivist judgments about criminal wrongdoing.” While Berman shares the enthusiasm of Ball and others for Apprendi, in this essay he pushes back against the jury-centric interpretation that both commentators and subsequent Supreme Court decisions have given that landmark decision.

In Berman’s view, Apprendi represented a recognition that “sentencing decisions are often far more consequential than basic guilt determinations” and that the vast disparity in procedural rights at trial and sentencing is therefore problematic. Because nine out of ten convictions result from guilty pleas, and because parties are tightly circumscribed under contemporary criminal law in the kinds of arguments they can make to juries, Berman contends that juries cannot, as a practical matter, be expected broadly to serve the important role of “retributive judgment” Ball would give them. Berman argues that, rather than having “juries serve as the chief tour guides through Apprendi-land,” the better approach is to recognize that Apprendi’s constitutional underpinning also lie in the Due Process Clause of the Fifth Amendment and the Sixth Amendment’s notice provisions.


Katherine Hunt Federle

Katherine Hunt Federle (w/Paul Skendelas), Thinking Like a Child: Legal Implications of Recent Developments in Brain Research for Juvenile Offenders, in Michael Freeman & Oliver R. Goodenough eds., LAW, MIND AND BRAIN (Ashgate 2008).

In this book chapter, Federle and her coauthor detail what the chapter considers two conflicting developments. On the one hand, recent neurological research (made possible by advances in brain imaging technology) has demonstrated that adolescents are physiologically significantly less well-equipped to reason than adults, and therefore “lack judgment, are more prone to peer influence and impulsivity, and cannot understand the consequences of their actions.” The chapter contends that this research provides “a neural basis for assuming that teens are less blameworthy than adults for the commission of criminal acts.”

On the other hand, the chapter demonstrates that over the past two decades states have overwhelmingly moved towards treating juveniles more harshly in the criminal justice system, including much more frequently treating them as adults. While resisting the view that juveniles’ relative incompetence should lessen their rights in juvenile proceedings (on the ground that rights are at bottom a form of power and thus most important for those with limited capacities) and concluding that blanket findings of incompetence-to-be-tried based on adolescence would be both unrealistic and counter-productive, Federle and her co-author focus on the implications of the brain research for dispositions of juvenile cases, contending that “the traditional goals of punishment are less appropriate for juveniles” and that holding juveniles responsible as adults “is morally wrong and scientifically unsound.”

Arthur F. Greenbaum

Arthur F. Greenbaum, Judicial Reporting of Lawyer Misconduct, 77 U. MO. K.C. L. REV. 537 (2009).

In this article, Greenbaum thoughtfully examines the regime under which judges report (and fail to report) lawyer misconduct to the bar. In the latter half of the 1980s, the ABA put increasing emphasis on the need for judicial reporting of attorney misconduct, culminating in a mandatory reporting rule adopted in 1990. Although expectations of much more vigorous judicial reporting were widespread, as Greenbaum describes, that has not happened, and the ABA’s 2007 revision of the Code of Judicial Conduct left this area largely untouched.

Judicial reporting rules largely track attorney reporting rules, and the article approves of this parallelism (though Greenbaum has previously offered substantial proposals for reforms to attorney reporting rules incorporated by reference here). Nonetheless, the article contends that there are strong grounds for believing that judges can be and ought to be more vigorous and effective reporters of attorney misconduct than ordinary lawyers. These reasons include judges’ heightened responsibility for the integrity of the judicial system, judges’ general role in imposing sanctions (e.g., Rule 11), the absence for judges of attorney-client privilege and other client duties, and the lesser repercussions judges would face for reporting.

The article concludes with several prescriptions for pushing judicial reporting forward, including greater encouragement of reporting by the enforcement authorities through education programs and other signaling, greater publicity of reporting (through publication) designed to change culture by public example, and by some clarifications to the reporting standard of itself, which would help make the duty to report more frequently unambiguous.

Creola Johnson

Creola Johnson, Fight Blight: Cities Sue to Hold Lenders Responsible for the Rise in Foreclosures and Abandoned Properties, 2008 UTAH L. REV. 1169 (2008).

One very significant aspect of the subprime mortgage meltdown and the housing mess that ensued has been skyrocketing rates of home abandonments resulting from foreclosures or threatened foreclosures. The abandoned homes reduce the value of surrounding properties and often become public nuisances, with dire financial consequences for the local government which often bears direct costs associated with clean up and indirect costs of tax loss associated with the decline in housing values. In this comprehensive article, Johnson takes a very close look at the details of this relatively untold story of the housing crisis and analyzes the legal responses.

The article explains and tracks the employment of traditional approaches (nuisance abatement actions, tax foreclosures, and in rem criminal proceedings), demonstrating that, while useful and potentially effective on a case-by-case method, the resources and, especially, the length of time, such proceedings take have made them inadequate to the task of coping with the current flood of abandonments. Johnson well-captures this theme in her introduction to the detailed explanation where she tells her reader to “note the reoccurring verbal references: identifying, notifying, waiting, ordering, taking and foreclosing.” The article next provides a detailed analysis of three cities’ distinct attempts to overcome this problem with large-scale litigation that tries to hold lenders responsible for many properties via a single law suit (Baltimore under the Fair Housing Act, Cleveland under a state-law mass public nuisance claim citing subprime lending as the proximate cause, and Buffalo under a nuisance suit citing, more traditionally, the lenders’ ownership as the proximate cause of the nuisance).

In a final section, the article examines the legislative response to this problem. The analysis includes an explanation of the manner in which the securitization of mortgages rendered obsolete long-held assumptions about lender behavior with regard to abandonment issues, a close study of expected effects of federal legislation passed in 2008, and recommendations regarding revised nuisance laws at the local level.

Edward Lee, Decoding the DMCA Safe Harbors, 32 COLUM. J. OF LAW & THE ARTS 233 (2009).

A decade ago, Congress sought to update copyright law in the face of the internet and the extraordinary possibilities of duplication and dissemination the internet presents by enacting the Digital Millennium Copyright Act (“DMCA”). The DMCA both expanded rights of copyright holders in certain circumstances and provided safe harbors to internet service providers (“ISPs”) that shield them from monetary liability under copyright law. As Lee describes, the safe harbor provisions have taken on great importance, as every “internet company in the United States that deals with content of third-party users—companies such as Amazon, AOL, CNN, eBay, Facebook, Google, MySpace, [and] YouTube” need to adopt a successful DMCA policy to be safe from liability. Yet the scope of the safe harbors and the steps needed to stay within them are controversial. This article provides a tightly organized and thorough analysis of these controversies, providing descriptive and normative viewpoints on where things stand and where they ought to go.

Lee discusses an argument some have advanced that, despite congressional intentions, the DMCA actually does not provide a safe harbor from traditional third-party vicarious liability for copyright infringement. Lee ultimately finds such an argument “indefensible.” Turning to the issue of when the safe harbor is available, Lee tackles the DMCA safe harbor requirement that the ISP “is not aware of facts or circumstances from which infringing activity is apparent” and concludes that a high standard must be met by plaintiffs, such as that the infringement is “plain, clear, or obvious,” supporting this view with a variety of careful arguments and providing examples to give content to the standard. In a final section, the article suggests guideposts for interpreting and updating the DMCA going forward. These include: an interpretive presumption against exceptions to the safe harbors, an interpretive preference for clear, predictable rules governing the safe harbors, alternative means for updating the DMCA beyond constant legislative action, a “wariness” of arguments hinging liability on automated features of websites and sensitivity to the First Amendment implications of laws restricting speech technologies (an idea Lee has developed in earlier work).