Faculty Scholarship Digest

April 2010

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

Amy J. Cohen

Amy J. Cohen, Thinking with Culture in Law and Development, 57 BUFF. L. REV. 511 (2009).

This ambitious article, through a detailed interdisciplinary approach, full of both theory and ethnography, critiques the “turn to culture” in the scholarship and practice of law and development. What Amy describes as the “turn to culture” is the movement, in light of the realization that trying to impose rule-of-law in developing countries simply by strengthening legal institutions (e.g., courts and judges) was not working well, to try to teach a “rule of law culture” to the everyday users of the legal system, so that law will be expected and accepted to fairly and decisively resolve disputes. Amy argues that in trying to teach a rule-of-law culture, “neocultural interventionists” have made a critical mistake in imagining “culture, like law, as an explicit set of social rules” that govern and produce predictable results.

To develop and demonstrate this thesis, the article uses two ethnographic examples from Nepal, a country that has been the focus of rule-of-law development efforts described above. Amy demonstrates how two groups that would be the targets of efforts to accept “rule of law values, in fact have strong beliefs in the rule of law and in development.” They profess precisely the beliefs the interventionists would teach them, yet in these cases (street protesters and village women supporting insurgents) they behave in ways “that befuddle rule-of-law ends” and do little to produce recognizable rule of law institutions.

In short, the article demonstrates that instilling the desire for the rule-of-law will not achieve the reformers’ goals when not connected with close understanding of the particular politics and normative conflicts of a local situation, and, indeed, may blind reformers to the underlying conflicts that need to be resolved.


Amy J. Cohen

Amy J. Cohen, Dispute Systems Design, Neoliberalism, and the Problem of Scale, 14 HARV. NEG. L. REV. 51 (2009).

This article raises objections to the transportation of alternative dispute resolution techniques that were developed to avoid litigation of disputes between individuals to a context in which the disputes are between individuals and much larger entities or even to public policy disputes. Amy argues that the entity matters. “Individuals, groups, institutions, corporations, communities, societies, [and] states” she notes are very different entities and applying techniques designed for individual-to-individual dispute to these different scales without attending very carefully to those differences can exacerbate forms of social inequality that are a part of those differences in scale.

In addition, the article contends that a shift towards neo-liberalism over the past thirty years—a shift from a faith in the state to a faith in markets—has altered the playing field for alternative dispute resolution in important ways. “Treating collectives like bounded individuals with interests to pursue,” Amy contends, creates serious social risks. The article suggests that explicit attention to the scale of the actors—which would involve examining the “legal, jurisdiction, and social positions of the various entities” (Amy explains how that could be done) and case analysis of existing cross-scale dispute systems that work with attention to the how and why—is the way forward.


Sarah Rudolph Cole

Sarah Cole (w/Kristen M. Blankley), Empirical Research on Consumer Arbitration: What the Data Reveals, 4 PENN. ST. L. REV. 1051 (2009).

Public Citizen, a non-profit public interest organization, issued a report in 2007 that was sharply critical of the arbitration process as it used to resolve disputes between credit card companies and consumers. The Public Citizen report, which drew on a database of 34,000 arbitrations in California, concluded that “mandatory binding arbitration is a rigged game in which justice is dealt from a deck stacked against consumers,” and made a number of specific claims to support that conclusion.

In this article, Sarah and her co-author analyze the data underlying Public Citizen’s report and reach very different conclusions. The article contends that Public Citizen’s claims are exaggerated and, in truth, the “data reveals that the consumer arbitration process provides a more pro-consumer environment for claims adjudication than does the traditional court system.” In addition to demonstrating the gap between the data and the conclusions in the Public Citizen report (in part because the report paid little attention to settlements and to awards that were less than the amount the creditor sought), the article points to empirical evidence of the much greater speed with which claims are resolved in arbitration and the apparent conclusion of courts that the process is fundamentally fair. The article concludes with some suggestions about additional data that would shed further light on the fairness of consumer arbitration.


foley_edward

Edward B. Foley (w/Nathan L. Colvin), The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 UNIV. OF MIAMI L. REV. 475 (2010).

In this compelling historical article, Ned and his co-author (a 2010 graduate of the Moritz College of Law) play out in detail the ambiguities in the Constitution’s description of the process for selecting the President—after the popular vote has occurred—and the resultant problems that have arisen and could easily arise again, describe what the history shows and offer constitutional prescriptions to avoid a future crisis.

Questions center on determining the electors and the electoral vote and involve how much deference should be given to state determinations, how to determine the state determination that “counts,” and what body at the federal level (President of the Senate (typically the Vice President), the Senate, or both Houses, or ultimately, federal courts) should make the federal decision and under what standards. In short, there are many possible permutations, and an ambiguous constitutional provision was followed by the ambiguous Electoral Count Act of 1887 (of questionable constitutionality) passed by Congress in the aftermath of the Hayes-Tilden crisis.

The core problem boils down to who should decide the winner of a particular state’s electoral votes and under what standards, and the article’s historical treatment demonstrates the questions are from hypothetical. The problems presented and the likelihood of future crisis are sobering, and the article recognizes the difficulty of a fix, particularly because it would likely involve a constitutional amendment. Nonetheless, the authors intrepidly emphasize the need for a clear constitutional mandate of the final arbiter of such decisions (possibly a commission created for that purpose), with a statement that the decision-maker, whomever it might be, has exclusive jurisdiction. Then, “as far as humanly possible,” clear procedural rules should be set out in advance.


Nancy Hardin Rogers

Nancy Rogers, Introduction: The Next Phase for Dispute Resolution in Law Schools: Less Growth, More Change, 25 OHIO ST. J. ON DISP. RES. 1 (2010).

In this introduction to a symposium on the future of dispute resolution in law schools, Nancy notes that the teaching of dispute resoltion in law school’s has reached a plateau as a mainstream course. To those scholars who were there at the beginning—twenty-five years ago when the subject barely had a “toehold”—Nancy explains that its current status could represent both the achievement of a very substantial goal and perhaps a minor disappointment to those who hoped to teach ADR to every law student.

In addition to describing the future seen by each of the contributors to the symposium, Nancy argues that given the number of legal and policy issues in ADR, the articles reveal “the teaching of dispute resolution should include more than skills training” and address those issues. At the same time, Nancy recognizes that law schools may nonetheless “look to dispute resolution teaching primarily to meet goals for skills learning since they offer many courses on law and policy.”


Book

Daniel C.K. Chow

Daniel C.K. Chow (w/Thomas J. Schoenbaum), INTERNATIONAL BUSINESS TRANSACTIONS, PROBLEMS, CASES, AND MATERIALS & DOCUMENT SUPPLEMENT (Aspen 2d ed. 2010).

Dan and his co-author wrote the first edition of this very successful casebook with the notion that growth in the field had brought about the time to separate “the private-based law of international business transactions and (2) the public-based law of international trade.” (They have a separate book on International Trade). The success of the books suggests the widespread agreement with their conclusion, and this new edition (five years after the original) offers much new material across the book, as the field is one of steady but incremental change. The book continues the extensive use of problems “to give students practice in applying the legal concepts learned to actual fact situations.” A separate document supplement completes the new edition.


Book Review

Katherine Hunt Federle

Katherine Hunt Federle, Reviewing WORSHIP AND SIN: AN EXPLORATION OF RELIGION-RELATED CRIME IN THE UNITED STATES, 25 J. OF L. & RELIGION 101 (2009).

Swanger’s book “sets out to persuade us that some crimes are committed because of religion and that this is a phenomenon worth studying.” While Kate’s review concludes that this may, indeed, be a topic worth studying, the book’s “proposed framework lacks the necessary sophistication to provide future researchers with a meaningful starting point.” The review describes the book’s typology of religion-related crime: theologically-based crime (e.g., instances of medical neglect or use of controlled substances), reactive/defensive crime (e.g., certain instances of violence against abortion providers), and abuses of religious authority (e.g., tax fraud or blocking discovery of sexual abuse). Kate notes that religious beliefs have long come into conflict with secular law, so “it cannot come as a surprise that these problems arise in the United States.” Yet, beyond its observation of that rather obvious point, Kate finds that the typology “does little more than illustrate” and fails to provide a real starting point for understanding the relationship between religion and crime.