Faculty Scholarship Digest

January 2011

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, Making the Framer’s Case, and a Modern Case, for Jury Involvement in Habeas Adjudication, 71 OHIO ST. L.J. 887 (2010).

In this article Doug blends two prominent and distinct problems of criminal justice—the diminished role of the jury and the inefficiency and ineffectiveness of federal habeas corpus review—into an original and provocative suggestion: a role for juries in federal habeas corpus review. Doug documents the critical role the Framers saw for juries in the criminal justice process, both for protection of the accused and to involve the community in government administration, and the subsequent decline of juries, both in the percentage of criminal cases they actually decide (not more than 4% of felony cases) and in the scope of their authority (now limited to factual findings, often without knowledge of sentencing impact of different findings). Similarly, the article traces the decline of “the Great Writ” into a morass in which it takes six years from conviction to habeas filing, another year to resolve the habeas case and, in noncapital cases, only one in three hundred obtains habeas relief (the success rate is much higher in capital cases, and the time to resolution is much longer still).

The notion of a jury role in habeas corpus proceedings may seem radical to current practitioners, but Doug offers historical evidence that juries came to play no role in habeas proceedings principally to make sure that the adjudications were swift. Since contemporary habeas is now anything but swift, the article contends, the possibility for habeas to “provide the first and [often] only opportunity for the ‘political institution’ of the jury to express the community’s evaluation of the charges and the punishments sought by the state . . . and to play a role in the criminal law’s development,” should now be examined. The article explores how juries could bring added value to habeas proceedings because of key differences between juries and judges with regard to both interests and perspectives, and outlines some of the typical issues in a habeas case on which juries could have input.

James J. Brudney, Cannon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 CAL. L. REV. 1199 (2010).

This article is part of an issue devoted to the work of the late Professor Phil Frickey, a giant in the field of statutory interpretation. Jim’s article focuses on Frickey’s scholarship over a period of two decades regarding the use of canons in statutory interpretation. Proponents of canons as means of interpretation argue that they “promote more predictable construction of statutes” and that they “foster more neutral policy outcomes.” Jim reviews and praises Frickey’s critical review of these claims, which leads to deep skepticism as to whether the canons ultimately achieve much of either such end. Yet, as the article describes, Frickey nonetheless found the canons a useful part of the interpretive process by their “encouraging more efficient statutory drafting” and “signaling the intensity of [certain] judicial policy preferences.”

Jim then uses Frickey’s view of the canons as a “resource effectively promoting the Court’s policy preferences” as a jumping off point for his own arguments in the article that the canons should hold a subordinate position to legislative history and agency directives, the “interpretive assets” that come from the legislative and executive branches. From a legitimacy standpoint, Jim argues that, generally speaking, legislative history is superior to the canons. In support of this view the article contrasts the absence of constitutional basis for the canons with the constitutional provisions directing Congress to determine its rules and to create a journal of its proceedings, which led directly to the creation of committees and legislative history in a way foreseen by the framers. From the perspective of objective reliability, Jim argues that canons “come out in third place” because there are clear, accepted and justified hierarchies for different legislative and executive materials (e.g., for legislative history: conference committee reports at the top, floor statements by non-drafters on the losing side at the bottom), while the canons lack such a framework, and, Jim suggests, its absence “may stem from an implicit understanding that such a creation would be both arbitrary and unproductive.”

Edward B. Foley

Edward B. Foley (w/Nathan L. Colvin), Lost Opportunity: Learning the Wrong Lesson from the Hayes-Tilden Dispute, 79 FORD. L. REV. 1043 (2010).

This article follows up on earlier work by Ned and his co-author (a 2010 graduate of the Moritz College of Law) closely analyzing the Constitution’s ambiguity with regard to the process, after the popular vote, for selecting the President and the many issues that have in fact arisen as a result. The 1876 Hayes-Tilden contest “was the most severe manifestation” of the problem, and thus “should have represented the best opportunity to fix” it. Instead, Congress struggled for eleven years before enacting the Electoral Count Act (“ECA”) which, the article explains, has been confusing, unwieldy and ultimately a failure in resolving the Constitution’s shortcomings. This article carefully examines the eleven years of legislative struggle that preceded the ECA, in hopes of providing guidance to better reform efforts in the aftermath of the 2010 presidential selection debacle.

Ned has previously urged a form of a neutral commission as the best vehicle for resolving such disputes, and the article explains why that alternative was not seriously considered during the debate leading to the ECA, even though—in fact, partly because—a commission had been used to resolve Hayes-Tilden. The article also details the surprising role partisanship did and did not play in the debate, concluding interestingly that split party control of Congress ultimately was crucial to getting anything agreed upon. The article concludes that, if Supreme Court intervention is to be avoided in the inevitable next dispute about presidential succession, Congress must act and “now is the perfect time for all interested parties to make proposals.” In recounting the history, the article does not downplay the difficulty of such reform, but it also underscores the “paramount national need to surmount these difficulties.”

Creola Johnson

Creola Johnson, Renters Evicted En Masse: Collateral Damage Arising from the Subprime Foreclosure Crisis, 62 Fla. L. Rev. 975 (2010).

This article continues Cre’s examination of the housing crisis on individuals caught in the maelstrom and potential regulatory responses, in this case turning her scrutiny to the innocent (i.e., not defaulting) renters living in properties undergoing foreclosure—a remarkably widespread phenomenon since estimates show that “nearly 40% of all foreclosures involve residential properties that are not occupied by the owners.” The article documents the widespread phenomenon of the eviction of renters by foreclosing mortgagees and the substantial social cost to the renters and their communities. In response, Congress enacted the Protecting Tenants at Foreclosure Act (“PTFA”) which gave renters statutory protection from eviction for 90 days or the remaining term of their lease, whichever is longer in most cases. Prior to the PTFA, whether the tenant could be evicted depended “on whether, under state law, the lease predated the mortgage or the tenant was joined as a defendant in the foreclosure proceedings.”

While approving the PTFA as better than nothing, and urging that it be renewed beyond its 2012 sunset provision, the article identifies some significant shortcomings, both by observing the PTFA in practice and by comparing it to more robust regulations in some states. In particular, Cre argues for a robust notice of rights provision, contending that many renters give up their PTFA rights out of complete ignorance. In addition to describing a variety of avenues to better notice and understanding, the article urges more substantive rights as well. In particular, drawing on her review of the experience of evicted tenants, Cre urges that for month-to-month renters, who are thereby limited to 90 days under the PTFA, the PTFA should remove the obligation to pay rent during that period, because the 90 days leaves such tenants “so little time to save enough money to secure alternative housing.”

john powell (w/Caitlin Watt), Negotiating the New Political and Racial Environment, 11 J. L. SOC’Y 31 (2009).

In this article, john and his co-author (a 2009 graduate of the College of Law) address and advance a discussion of race that has taken place in a number of john’s recent articles. The article begins by addressing what the authors call “the process of race.” This portion of the article discusses not only the social construction of race and, both as evidence and as a result, the changing definition of “white” and “nonwhite” through American history, it also relates this process to the cultural devotion to individuality, the decline of civil participation and rise of consumerism, all combining to create a corporate democracy that is deeply racialized.

john describes a discussion in which he was challenged that “if one accounts for neighborhood, wealth, education, family history, the job the person had, and a few other factors, race would drop out.” john’s response was “what do you think race is?” That story serves both as a capsule summary of the explanation of the social construction of race and as a segue (after a discussion of unconscious bias and brain processes that make the use of race a matter beyond intentional control so that race is both “a science fiction and a social fact”) to the “systems” analysis that recognizes the complexity that underlies racialized effects. For example the article discusses some of the many factors that lead to lower minority collegiate enrollment. In a concluding section, the article renews john’s call for “targeted universalism” in response to the problems of racial hierarchy. john and his coauthor argue that the challenge is to “maintain the need for universal goals that most Americans share while acknowledging that we are situated differently for reasons that cannot be explained in terms of moral worth.” This approach, the article contends, “allows the conversation to be about we. . . . But it also takes situatedness seriously.”