Faculty Scholarship Digest

November 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.


Article

Jeffrey S. Sutton, The Role of History in Judging Disputes About the Meaning of the Constitution, 41 TEXAS TECH L. REV. 1173 (2009).

By Judge Sutton’s reckoning, in 2007 the Court decided half as many cases as it did two decades earlier and yet reached constitutional decisions on historical grounds in twice as many cases. Judge Sutton describes a sea change in decision-making (and, consequently, in advocacy directed at influencing that decision-making) as significant as the Brandeis briefs of the early 20th century. In this essay, Judge Sutton documents and then discusses the advantages and disadvantages of this growth in historical evidence as a means of interpreting the constitution.

The article cites not only the potential advantage of avoiding judicial policy preferences as a decision method, but also the benefits history may provide even to standards with evolving meanings as well as history’s potential to provide a fair basis for deciding when to overrule precedents. Judge Sutton also contends that “the recent trend in favor of historically based constitutional decisions thus far has not produced results reflexively consistent with one political stripe over another.”

On the negative side of the ledger, Judge Sutton is skeptical about the historical skills of both lawyers and judges, notes that history may hide, rather than forestall, judicial reliance on policy preferences, is concerned that history may give the appearance of divorcing the law from relevant criteria (e.g., the public may have trouble “accepting that whether a citizen can possess a handgun turns on edicts issued in the Scottish Highlands centuries ago, or that the government’s ability to pursue terrorists turns on arcane anecdotes from the furthest reaches of the now-defunct British empire”), and worries that courts’ historical errors will lack a path to correction.

The final section of the essay looks to the use of history in the future. Judge Sutton sees the enhanced role for history in constitutional decision-making continuing, though he thinks it will not frequently be decisive. He is optimistic that the bar will be up to the tasks of providing valuable historical evidence and checking the other side’s history, and that the bar will improve in these roles over time, helped by better access to historical materials. He also hopes that historical arguments will be raised and contested more frequently in lower courts (instead of being thoroughly covered for the first time in the Supreme Court), providing the sharpening of arguments and narrowing of issues normally accomplished by lower court adjudication.


Book

Donald B. Tobin, PROBLEMS IN TAX ETHICS (West 2009) (w/Richard Lavoie and Richard E. Trogolo).

The need for integration of professional ethics throughout the law school curriculum has been a consistent refrain in legal education reform in recent years, and many law teachers are seeking ways to achieve this in the context of their doctrinal classes. In this 300-page softback volume, Donald and his coauthors have provided an important and innovative tool for tax instructors to do so. The book organizes the ethical issues faced by tax lawyers into seven categories, creates a chapter for each, and in each chapter provides source material addressing the issue and then problems and scenarios that require application of that material (a teacher’s manual for the book is forthcoming). These “materials” come from diverse sources: ABA opinions, IRS opinions, court decisions, administrative regulations and proposed regulations, articles, and restatements, to mention just some. (The book contains a section at the start addressing the legal force of various publications in this context). In short, the book is innovative in both subject-matter and approach.

While most law teachers probably think their area is unique in some way, reading Donald’s book certainly underlines the special challenges of ethical regulation in the field of taxation, in which there is an exceptionally broad range of choices for taxpayers and their attorneys between “aggressive” interpretations that would benefit the taxpayer and are not frivolous and more conservative approaches that attorneys would be confident would withstand challenge. As the book explains, since there is no one on the other side, so to speak, unless and until the IRS gets involved, there is a great deal of choosing to be governed by ethical standards, and with very important consequences (see, e.g., Enron, Tyco and Worldcom). The book covers both areas that are unique to tax (e.g., tax shelters, business activities) and those that lawyers face in other fields but have special applications in tax (e.g., evidentiary privileges, conflicts of interest).


Report

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Joseph B. Stulberg (Chair, with Sharon Press, Vice Chair and Richard Fincher et al., Task Force Members), The Association of Conflict Resolution, An Examination of the Arbitration Fairness Act of 2009 (October 2009).

This one-hundred page report of a task force created and chaired by Josh Stulberg at the request of the Association of Conflict Resolution (“ACR”) — an international association of mediators, arbitrators, facilitators and educators in the field — addresses proposed versions of the Arbitration Fairness Act (“AFA”) (now before Congress with a seemingly better chance than ever of passing) which would amend the Federal Arbitration Act. In November the task force’s report was adopted by the ACR.

The AFA proposes changing federal law so that any pre-dispute agreement to arbitrate a dispute involving a “consumer,” “employment,” “franchise,” or “civil rights” as defined by the legislation would be void and unenforceable. Moreover, courts would be the exclusive adjudicators of any dispute challenging an arbitrator’s jurisdiction. Needless to say this would work a major change in current law, under which such pre-dispute agreements “are routinely required or imposed ... as a condition of providing a service or extending an employment opportunity.”

The report of Josh’s task force recognizes significant problems “that require immediate attention” in the design and implementation of some such arbitration agreements but concludes that the ban is a cure much worse than the disease. The task force sees pre-dispute mandatory arbitration as the most promising means “for developing a fast, efficient, fair, low-cost dispute resolution process” that is both accessible to all and transparent in its practices. Elimination of mandatory arbitration would leave courts as the alternative, and the report finds “no reasonable evidence” that courts can meet many (if any) of these goals in the arenas in which these agreements are used. Moreover, the task force notes the AFA “could create uncertainty” in international business transactions and employment contracts and, more generally, retard the progress of alternative dispute resolution processes, which have had broad support for three decades.

The Report supports these conclusions with a detailed analysis (examining cases, scholarship, and data) of the problems identified by the AFA and the likely impacts of its proposed solutions. While rejecting the proposed legislation for the reasons described above, the task force supports amending the Federal Arbitration Act and it provides detailed and specific proposals about how to improve it.