Faculty Scholarship Digest

May 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.


Amy J. Cohen

Amy J. Cohen, Revisting Against Settlement: Some Reflections on Dispute Resolution and Public Values, 78 FORD. L. REV. 1143 (2009).

This article takes on the unusual task of reconceptualizing a landmark work and thereby providing for rethinking of fundamental issues in the field. The landmark work in question is Owen Fiss’s 1984 Yale Law Journal article Against Settlement, in which Fiss sharply criticized alternative dispute resolution mechanisms on the ground that using individual preferences to resolve disputes instead of laws—which by definition express public preferences—would lead to a triumph of individual interests at the expense of public values. Understood as a polemic against ADR on these grounds, Fiss’s article and arguments are part of virtually all ADR texts and has provoked a cottage industry of responses.

Amy begins with an empirical demonstration that ADR can, in fact, promote public values—citing numerous examples in many different countries. Rather than stop there and say “Fiss was wrong,” Amy instead says “that’s not what Fiss should be understood to have meant.” Instead, Amy argues that Against Settlement must be understood in its particular historical context, which included the emergence of neoliberalism and a belief in privatization of state functions and individual interest maximization as social policy. Fiss’s argument, the article contends, was that “adjudication could preserve popular commitments to the U.S. welfare state, whereas ADR seemed likely to reinforce” the movements Fiss objected to.

In short, at bottom he was supporting “moral deliberation versus interest satisfaction,” and that the preference for adjudication over ADR was simply a byproduct of this fundamental issue in that particular context. The article bolsters this argument by demonstrating that in later work by Fiss in international contexts, his preference for moral deliberation led him to favor extrajudicial processes that look a lot like ADR. The result is not only to see Fiss’s work in a new light, but also to emphasize a theme of Amy’s scholarship: understanding context and considering values is a constant necessity in analyzing legal frameworks.

Katherine Hunt Federle

Katherine Hunt Federle, Lawyering in Juvenile Court: Lessons from a Civil Gideon Experiment, 37 FORD. URBAN L.J. 93 (2010).

This article uses the experience of juvenile law to offer insight for those interested in a right to counsel for the indigent, in particular with regard to the tension between client autonomy and lawyer autonomy, a very real issue in both poverty lawyering and in representing children. Should the lawyer “override client choice when it is for the client’s own good”? Is a crucial part of the lawyer’s role to facilitate moral decision-making by the client? Or is the lawyer not morally accountable for the client’s approach (within the law), with the emphasis on client autonomy promoting the client’s freedom and dignity?

Kate suggests that, in practice, “[t]he degree of client autonomy . . . may depend significantly on the lawyer’s assessment of the client’s competence.” Juveniles have had a right to counsel in the civil context of delinquency proceedings for more than forty years, and the article contends that the experience in that context reveals that the ability to question client competence often leads to the undermining of client autonomy because of a variety of on-the-ground forces, notwithstanding a formal legal framework endorsing autonomy. Moreover, underfunding and poverty have undermined the effectiveness of this right to counsel.

Kate finds three lessons from the civil right to counsel in the juvenile context: even a constitutional right will not always lead to representation; courts and legislatures may be loathe to extend the right further; and, even when counsel is provided, that counsel often may be ineffective. Thus, Kate argues, “[e]ven if there is a civil right to counsel,” that might not be enough. Kate argues that a firm commitment to a client autonomy model is critical to empowering both juveniles and the poor, so that their interests can genuinely be addressed: “The voices of the poor, like those of children, need to be heard.”

john a. powell (w/Jason Reece), The Future of Fair Housing and Fair Credit: From Crisis to Opportunity, 46 CLEVELAND ST. L. REV. 209 (2009).

In this article, john and his co-author examine the origins of the housing crisis, its effect on communities of color and prospects for the future. “There is clear and irrefutable evidence” that “communities of color were disproportionately burdened by the crisis.” Rejecting the polar explanations of individual irresponsibility under the Community Reinvestment Act or discrimination as the primary drivers of this effect, the article details a more nuanced story that involved the securitization of mortgage lending, a consequent drive to extend credit in undercapitalized markets, and vulnerable communities created by discriminatory housing practices in the twentieth century. The article describes both historical and contemporary barriers to fair housing and examines their impact in the credit crisis with a case study of Cleveland, Ohio. Turning to the future and viewing the crisis as an opportunity, the article emphasizes that “housing and fair credit provide more than just shelter and resources in our society; housing and credit are transformational vehicles which can be critical pathways or bridges to opportunity.” The article calls for a number of systemic changes through federal regulation and investment that recognizes the multifaceted nature of the challenge and the need to account for the vulnerabilities and challenges faced by certain communities; policies that try to lift all but understand a need for differential treatment to reach those goals—what john describes as “targeted universalism.”


Martha  Chamallas

Martha Chamallas (w/Jennifer B. Wriggins), THE MEASURE OF INJURY, RACE, GENDER, AND TORT LAW (NYU Press 2010).

In this book, a capstone achievement of years of study and analysis, Martha and her coauthor put tort law under a critical magnifying glass and reveal with extraordinary clarity the pervasive effects of race and gender in the law of torts, effects often not visible upon a cursory glance because of the facial neutrality of many contemporary legal rules. The book gives the reader a full and compelling picture that indelibly alters the traditional understanding of torts. The topics covered are simply too numerous to describe in a brief summary without doing them a disservice, so examples will have to do.

Tort law “is built around the dual premises that accidental injury lies at the core of tort law and that physical injury, rather than emotional harm or injuries to relationships, is of paramount concern.” Martha and her coauthor demonstrate how this paradigm has disabled tort law from stemming domestic violence and sexual exploitation; they also expose the approach’s normative underpinnings to demonstrate that the result is more than an unfortunate coincidence.

In considering these matters, the book explains at the micro, doctrinal level, but also at the broader, abstract level—placing tort law in the context of contemporary and historical examples of the legal mechanisms that produce gender and racial hierarchy. Negligence, what counts as injury, how we understand fault and causation (and mixed causation), how we define and measure damages: no portion of tort law is spared rigorous scrutiny, and the shadow of gender and racial bias is consistently revealed, without reliance on polemic and with consistent attention to the nitty-gritty of tort doctrines.

Fundamentally, as Martha and her coauthor describe, tort law is most often understood as independent of “the identity of the parties or the particular context in which [the claim] arose.” By paying attention “to the social identity of tort victims and the context of their injuries,” the book brings a new understanding to the law and identifies six different but related pathways by which race and gender influence tort law. The book also offers some prescriptions for the problems it identifies: importing more principles from civil rights law into tort law; prioritizing the constitutionally protected interests of sexual integrity and reproduction within tort law by providing them heightened status requiring duties of care; and rethinking what constitutes the “core” vs. the “marginal” in tort law to give greater weight to the claims of women and minorities.

Joshua  Dressler

Joshua Dressler and Alan C. Michaels, UNDERSTANDING CRIMINAL PROCEDURE VOL. I: INVESTIGATION (Lexis/Nexis 5th ed. 2010).

In this latest edition of the first volume of Joshua and Alan’s criminal procedure treatise (Alan joined in the Fourth Edition), they bring the volume up to date with the latest developments in the ever-evolving field of constitutional regulation of criminal investigations. This subject receives constant, evolutionary attention from the Supreme Court like few others, with at least a handful of cases annually dribbling new doctrine onto the elaborate sand castle the Court has built over the last half-century. As a result, clear explanation of doctrine requires regular reframing of issues and restructuring of discussions. In the tradition Joshua established, the new volume also contains citations to the latest scholarship in each of the areas covered. Joshua and Alan hope that students and faculty readers will continue to find the book clear, helpful and accurate. And they are already preparing the supplement for the cases decided since the book went to press.

Book Chapter

Peter M. Shane

Peter M. Shane, Pro: Resolved, Presidential Signing Statements Threaten to Undermine the Rule of Law and Separation of Powers, in Richard J. Ellis & Michael Nelson eds., DEBATING THE PRESIDENCY, CONFLICTING PERSPECTIVES ON THE AMERICAN EXECUTIVE (2d ed. CQ Press 2010).

This interdisciplinary text, mixing political scientists with law professors, tackles contemporary normative issues regarding the presidency by setting up each chapter as a debate on particular issues. In this chapter, Peter argues against presidential signing statements while Professor Nelson Lund adopts the contrary position. Presidential signing statements as debated here are those that indicate doubts about the constitutionality of particular provisions of the bills the President signs or otherwise unilaterally reinterpret certain provisions. In this form, there were only about 100 such statements in American history prior to the Reagan presidency, when Attorney General Meese began their strategic use. President Reagan issued seventy-one. The first president Bush would use this method to editorialize on more than one thousand statutory provisions.

Peter’s entry explains the nature of these statements with examples and raises two fundamental objections. First, “signing statements have now become a burgeoning and largely unmanageable mass of obscure, politicized, and conclusory quasi-legal objections to legislation;” from a purely mechanical perspective, their meaning and force is thoroughly uncertain, and this confusion itself undermines rule-of-law values. The second problem, as described by the entry, is more subtle but also more profound. While the statements themselves do not have much power as law and may not even have much power in directing actors within the executive branch, Peter argues that “[t]he repeated utterance of the president’s imagined immunity to both important and obscure forms of congressional regulation cannot help but shape executive branch behavior by inducing allegiance to norms of hostility to external accountability.”

The chapter develops this argument that signing statements lend potentially powerful support to a culture of disrespect for the rule of law by the executive branch and hence threaten separation of powers as well, with examples particularly from the presidency of George W. Bush.