Faculty Scholarship Digest

August 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.


Article

James J. Brudney, Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns, 83 S. CAL. L. REV. 731 (2010).

In 2007 and 2008, union membership in the private sector rose modestly for the first time in decades, due at least in part to a “comprehensive campaign” strategy, in which organized labor generates extended economic pressure on employers through coordinated tactics that include publicity efforts directed at media and consumers, regulatory pushes related to health, safety and the environment, and financial reviews relating to pensions and shareholders.

One employer response to these campaigns has been civil suits alleging a pattern of extortion under the Racketeer Influenced and Corrupt Organization Act (“RICO”), which pose the threat of treble damages and attorney’s fees and raise the specter of organized labor as “racketeer.”

In this article, Jim examines whether these nonviolent pressure tactics are properly actionable under RICO. This entails review not only of RICO, but of the Hobbs Act, the underlying extortion statute whose violation serves as a RICO predicate. The article carefully examines four determinative questions for the success of such suits: whether, through a comprehensive campaign, a union “obtains property” from an employer, if so whether it is done “wrongfully,” whether the First Amendment protects typical comprehensive campaign tactics regardless, and finally whether, even if the individual actions by labor are lawful, whether cumulatively the campaign could “be deemed actionable as a form of ‘death by a thousand cuts.’”

As a prelude to the close analysis, the article provides an outstanding history of the relevant union activities and federal statutes. Ultimately, Jim concludes that “union comprehensive campaigns qualify as lawful ‘hard bargaining’” and that “federal courts should take the initiative to clarify the law and thereby reduce the chilling effect of RICO actions.”


Books

beazley_mary-beth

Mary Beth Beazley, A PRACTICAL GUIDE TO APPELLATE ADVOCACY (Aspen 3d ed. 2010).

In this latest edition of her popular text, Mary Beth continues the process of refinement based on feedback from the book’s many users. The book achieves a remarkable combination of comprehensiveness and accessibility. There is broad perspective and detailed process advice, discussion from using storytelling theory to assist with the statement of facts to where and how to address opponents arguments, to advice about moot court competitions and lots of examples and samples. Yet, using Mary Beth’s trademark humor (The book’s first line is a good example: “Okay, I’m going to start out by violating a principle of legal writing and ask you a question: Why are you reading this book? Let me guess — because you have to”) the information and instruction is welcoming rather than overwhelming. And now, completely up-to-date.


colker_ruth

Ruth Colker, THE LAW OF DISABILITY DISCRIMINATION (LexisNexis 7th Ed. 2009).

In this latest edition of her leading casebook, Ruth brings the text up-to-date in this field of very rapid change, including significant amendments to Title I (employment) and Title V (miscellaneous provisions) of the Americans with Disabilities Act, and the rapid development in both regulations and case law. In addition to a traditional presentation of cases, notes and problems, the text addresses issues on the frontier of disability law — the significant questions and issues Ruth expects will soon confront courts — with hypotheticals designed to facilitate examination of these questions. The text provides the basis for an in-depth understanding of the ADA and other significant disability laws.


Stephanie Hoffer

Stephanie Renee Hoffer (w/Philip Frederick Postlewaite), INTERNATIONAL TAXATION, CORPORATE AND INDIVIDUAL (Carolina Academic Press 5th ed. 2010).

Stephanie joins the latest edition of this leading two-volume treatise on international taxation. This book covers the taxation by the United States of U.S. entities for their income arising outside of the U.S. (Volume I) and the taxation by the United States of foreign entities for their income arising inside the U.S. (Volume II). The treatise is designed both to explain this field to the international tax novice and to serve as a useful reference to the experienced reader. These dual objectives are achieved by wonderfully clear exposition that is both accessible and comprehensive. Relentless globalization heightens the importance of this work and adds to the challenge of keeping it current. In this latest edition, Stephanie and her co-author rise to that challenge admirably.