Faculty Scholarship Digest

July 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.


Articles

Daniel C.K. Chow

Daniel C.K. Chow, China’s Response to the Global Financial Crisis: Implications for U.S.-China Economic Relations, 1 Global Bus. L. Rev. 47 (2010).

This extremely informative article, part of a symposium on the global financial crisis, provides a detailed look at China’s response to the global economic crisis and potential ramifications of that response. Dan starts with an overview of the Chinese economy, which is highly dependent on exports (37.8% of GDP, compared to 12.7% in the U.S.) and on massive foreign direct investment, which brings both capital and technology to China. Although China was not affected directly by the economic meltdown in 2008 (for example, China and its citizens did not have significant holdings in mortgage backed securities), the dependence on exports and foreign direct investment left China’s growth very vulnerable to the crisis’ effects abroad.

Dan explains the response in China, politically and economically. Dan describes how ‘[m]any people in China believe that China was lulled into creating close economic ties with the United States based on a false belief that the United States economy was stable and prosperous with a world class financial industry, a prudent and conscientious government, financial regulators, and sophisticated consumers.” As Dan describes matters, “China’s leaders were . . . shocked and surprised that the United States government seemed to have completely overlooked the problem and may even have contributed to it.” As a result, China which had looked at the United States as a model for economic acumen worthy of emulation now views the United States with much greater skepticism and trepidation, with potential long-term effects on U.S.-China relations. The article canvasses China’s (effective from a Chinese domestic perspective) fiscal and monetary responses to the economic slowdown (which included substantial stimulus and the implementation of universal health care provisions) and discusses their potential ramifications for U.S.-China trade.


Daniel C.K. Chow

Daniel C.K. Chow, Counterfeiting as an Externality Imposed by Multinational Companies on Developing Countries, 51 Va. J. Int’l L. 785 (2011).

Dan has established an iconoclastic presence on the issue of counterfeiting, challenging widespread assumptions and reframing the problem. This article continues that important and powerful discussion. The article begins by challenging the claim of multinational corporations that counterfeiting and other forms of commercial piracy cost them hundreds of billions of dollars per year. Closely analyzing the assumptions underlying such claims (such as that each purchase of a counterfeit good (e.g., a fake Rolex) replaces a sale of the legitimate good that would have occurred). In short, Dan contends that multinationals are not hurt nearly to the degree they claim, and that their own behavior in the extent to which they try to combat and actually facilitate counterfeiting further belies the claim.

This is not to say that Dan considers counterfeiting harmless. To the contrary (much like the purported impact of Prohibition) Dan argues that counterfeiting causes substantial harms, albeit harms that the multinational corporation does not feel. These include the rise of organized crime to operate the counterfeiting operation, government corruption supporting and funded by the counterfeiting, and, in some cases, health and safety risks from the production or use of the counterfeited product. Moreover, the article contends, multinational corporations, by their branding practices and, especially, through their extensive efforts to “take advantage of lower manufacturing costs in developing countries, [where] they introduce technology in environments” with “weak legal systems” and “inept . . . governments” actually are a but for cause of a great deal of counterfeiting. Their actions provide them profit (through brand value and lower manufacturing costs) while leaving them immune from the principle costs described above. In short, far from being victims of counterfeiting, the article casts multinationals as its enablers.


Daniel C.K. Chow

Daniel C.K. Chow, Exhaustion of Trademarks and Parallel Imports in China, 4 Santa Clara L. Rev. 1283 (2011).

This article, part of a symposium on the doctrines of exhaustion and first sale in intellectual property, examines the treatment of exhaustion of trademarks under Chinese law, an issue likely to have rising importance in the future. Suppose multinational corporation X has a joint venture or a wholly owned subsidiary in China Y. X has a valuable brand, ^, that it licenses to Y for China. Y produces ^ brand goods in China and sells them both in China and abroad. Now suppose X has a similar arrangement with company Z in Thailand. If another company buys ^ brand goods from Z in Thailand, can it then import them into China? Or does that violate Y’s trademark rights? The answer turns on whether China follows the rule of “international exhaustion,” under which the first sale of the goods in any country ends the trademark rights, or instead adopts “national exhaustion,” which requires a sale in China to eliminate trademark rights.

The article examines cases and statutes to explain that in China the answer to the question is unclear at the moment. As manufacturing costs rise in China, the scenario described above is likely to become more common and the question, therefore, more important. Dan uses his expertise to analyze the competing pressures in China (to conform to international standards, which would tend towards international exhaustion/to protect mercantile interests, which would tend towards national exhaustion) that will ultimately determine the answer.


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Ruth Colker, Speculation about Judicial Outcomes under 2008 ADA Amendments: Cause for Concern, 4 Utah L. Rev. 1029 (2010).

In this article, Ruth continues her path along the cutting-edge of empirical research regarding legal outcomes under the Americans with Disabilities Act. Prior research by Ruth and others, relying on appellate outcomes reported in Westlaw and Lexis, concluded that defendants prevailed in more than 90% of ADA cases and that a rigorous definition of “disability” was often the reason, and in 2008, Congress responded by amending the ADA to broaden the definition of disability. Yet appellate data is, of course, only the tip of the iceberg, and so, to get a better baseline read for the state of litigation prior to the 2008 amendments, Ruth (using research funds from her designation as University Distinguished Professor) unleashed a team of research assistants on PACER, the electronic court records system of the federal courts. Using PACER provided “a more extensive set of records than had previously been examined on a nationwide basis,” including not only cases that were not appealed, but the many cases that were voluntarily dismissed without official resolution (as settlements or otherwise).

Ruth’s study provided a number of important and interesting insights, though she is careful to qualify her observations because of the limited information available on PACER. For example, the reason for a voluntary dismissal (i.e., whether there was any kind of meaningful settlement) and sometimes even the basis for the ADA claim could often not be discerned. Indeed, while PACER does code for whether a case is brought under the ADA, many errors were discovered in that coding. With that important caveat in mind, however, the article explains that of cases that were actually brought, plaintiffs succeeded in at least achieving a settlement between 35% and 64% of the time, that the EEOC did not appear to achieve better results for plaintiffs than private attorneys, even though the EEOC skims off the strongest claims, and that the definition of disability played a very small role in defendant successes, so that, while the 2008 Amendments might create new plaintiffs, it is unlikely to change many outcomes among existing plaintiffs. The most outcome determinative problems faced by plaintiffs seemed to be failure to obtain private counsel (which often led to failure to effectively access the court system because of procedural hurdles) and issues over what constitutes a “reasonable accommodation.”


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Edward B. Foley, The McCain v. Obama Simulation: A Fair Tribunal for Disputed Presidential Elections, 13 N.Y.U. J. Legis. & Pub. Pol. 471 (2010).

This article describes the extraordinary history of the McCain v. Obama simulation. Based on his study of election disputes and their resolution, including the highly partisan, legitimacy-challenging Bush v. Gore, Ned conceived the idea of an “amicus court” — a specially selected, politically balanced tribunal that would decide actual or likely election resolution issues in moot court fashion as an assist towards either avoidance or proper resolution of such issues in actual practice. Ned persistently gathered support for his idea which eventually led to the involvement of the American Enterprise Institute and the Brookings Institution, in partnership with Election Law @ Moritz, and an extraordinary lineup of distinguished judges and Supreme Court advocates to hear the case, McCain v. Obama, at Georgetown law school, two weeks before the 2008 presidential election. The case centered on a hypothetical (drafted from the exam Ned gave in his election law class) in which election officials, in response to a snowstorm, left the polls open later in Denver than polls were kept open elsewhere in Colorado, with the result that McCain challenged the outcome on Equal Protection grounds citing Bush v. Gore.

In addition to describing the facts, legal issues and outcomes (“Obama” won a unanimous decision, with Bush v. Gore distinguished), the article provides an important roadmap for similar efforts in the future and offers some broader conclusions from the exercise about ways for better resolving election disputes. The project has received widespread attention, from NPR coverage to inspiring the American Law Institute and the National Center for State Courts to future projects. The article urges future simulations along similar lines and suggests that such efforts could provide a path to the creation of an impartial tribunal for resolving presidential election disputes that Congress could legislate, contending that “an evenly balanced three-judge panel, in which one Democratic and one Republican judge mutually agree upon a third neutral member, is the means most likely to achieve . . . success.”


Ric  Simmons

Ric Simmons, Private Plea Bargains, 89 North Car. L. Rev. 1125 (2011).

This comprehensive article re-conceptualizes the theoretical framework for the debate over private settlement of potential criminal cases, so-called private plea bargains. “Agreeing not to report a crime in exchange for consideration is illegal under blackmail statutes in every jurisdiction in the United States,” so private plea bargains are criminal, but, Ric argues, they occur nonetheless because (as the article shows) the incentives for such agreements can be great and the risk of detection small. The article then turns to consideration of whether the justifications for criminalizing blackmail apply in the context of private settlement of criminal matters. The justifications for criminalizing blackmail in general are controversial, and the article expresses considerable skepticism about them but, whatever their strength, argues that they do not apply in this context. In short, Ric concludes, the justifications for criminalizing blackmail do not justify criminalizing private settlement of criminal matters.

The article then turns to the plea bargaining comparison. After defending the view that the difference between private and public plea bargaining is “one of degree and not of kind,” the article analyzes the proffered benefits and harms of plea bargaining in general, a subject that has generated a substantial literature. From this in-depth and careful discussion, Ric concludes that many of the arguments against plea bargaining apply with even greater force in the private context and that some of the benefits of plea bargaining, particularly enhancing procedural justice and prosecution flexibility, do not apply at all. As a result, the article concludes that in most cases the criminal prohibition on private criminal settlements is well-justified, albeit not because of the traditional blackmail rationales. In one circumstance, private plea bargains ought to be permitted: “between individuals who already have a preexisting relationship . . . close enough that the victim is unlikely to report the crime . . . anyway and . . . [that] might be endangered if formal criminal charges are filed.” A final section of the article applies these insights to suggest amendments to existing law.


Books

Richard C. Daley

Rick Daley, Real Estate Development Law (West 2011).

This remarkable book draws on Ric's 25-years of experience representing real estate developers, both in private practice and as an in-house counsel (and his subsequent experience at Moritz teaching in the field), to help law teach students how to be business lawyers and what such a practice is like. Because of the many areas of law it touches on, and the centrality of the deal, “real estate development law is an ideal platform to provide students with a practical understanding of how the legal concepts that they mastered in law school can be used by them to help their clients achieve their business objectives.”

The book executes this vision by first covering the real estate development business (“if you want to succeed as a real estate development lawyer, you first need to understand the real estate development business”) and examining the lawyer’s role in each of ten stages of a real estate development project through use of a case study. The book also pays a great deal of attention to a variety of documents (the “heart and soul of real estate development law”) with a constant emphasis on the practical (though not the technical) aspects of representation. The names of the chapters provide some sense of the scope of the enterprise, from “Securing Government Approvals and Incentives” to “Designing and Constructing the Project” and from “Forming and Capitalizing the Project Entity” to “Selecting an Exit Strategy.” Yet these intimidating subjects are rendered accessible from the beginning by Rick's outstanding writing, which brings his direct and unpretentious style to the printed page.


Ellen E. Deason

Ellen E. Deason, Civil Procedure, cases, problems and exercises (West 3rd Ed. 2011).

This latest edition of Ellen’s civil procedure casebook brings the book up-to-date in this always changing field. The book is distinctive among its peers in a number of ways, many of which put a greater burden on the preparation of new editions. The book makes extensive use of problems and exercises throughout, keeping up with developments in legal pedagogy. Ellen and her co-authors also place a heavy emphasis in case selection on using cases from the past decade, which keeps the cutting edge issues at the forefront, with the cases sometimes summarizing the traditional chestnuts of procedure books that may frame critical issues but did not resolve for all time the underlying policy issues. The book presents alternative dispute resolution methods and materials in integrated fashion throughout, rather than simply including an add on chapter at the end (how appropriate for a Moritz-authored book). It also includes very extensive notes that allow the book to serve as a useful secondary source in addition to its classroom function.


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Peter Shane, Separation of Powers Law, cases and materials (Carolina Academic Press 3rd Ed. 2011).

The latest edition of this leading casebook in its field includes the many changes and developments in this ever more central subject. As the authors put it, with understatement in my view, as “the ever-increasing number of legal cases involving separation of powers attests, the subject of this work has become and is likely to remain a central national concern.” The pace of change and development in the field is truly astounding, as year after year, separations-of-powers issues and cases suffuse our most pressing national concerns. As Peter and his co-author wonderfully put it: “Far-fetched does not begin to capture how we would have described [when they started the precursor to this book] the ideas that Congress might impeach a President for lying about a sexual affair, that the Supreme Court would intercede in a state vote recount in a way that would effectively decide a presidential election, or that the executive branch would claim inherent authority to hold U.S. citizens indefinitely, and without counsel or hearing, as ‘enemy combatants.’” The new edition brings the entire discussion up to date.


Book Chapter

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Edward B. Foley, Democracy in the United States, 2020 and Beyond: How Can Scholarly Research Shape a Vision and Help Realize It?, in Race, Reform, and Regulation of the Electoral Process, recurring puzzles in American democracy (Guy-Uriel E. Charles et al. eds. Cambridge 2011).

In this substantial book chapter, Ned surveys the field of electoral reform and sets a series of “mid-range” reform goals that might realistically (if optimistically) be achieved by 2020, “a nice gift to the children born in the year of Bush v. Gore . . . as it will be the first year in which they are eligible to vote in a presidential election.” The chapter begins with a sobering description of just how little has been accomplished since the 2000 election, when inadequate procedures “transformed the problem of ‘hanging chads’ into the calamity of a Court-ordered halt to a recount.

Yet, there is much that can be accomplished, even in the relatively short-term before 2020 (compared to some longer-term projects, such as reform of the electoral college, that would require constitutional amendment). This includes creating a state-of-the-art voting infrastructure that would better cope with the issues raised by advances in provisional, mail-in, and absentee voting and that, through technological advancement could both advance voting access and create secure verification—two goals that have been largely in competition with each other. The chapter also calls for more systematic “war-gaming” of potential electoral problems in advance of actual disputes to help avoid certain problems and resolve more fairly and objectively other problems that inevitably do arise. Ned also advocates “adopting a Model Code, at least for resolving disputed presidential elections”—defusing a time bomb that is ready to explode every four years as Ned has extensively detailed elsewhere—together with suggestions of how Congress can constitutionally create a powerful incentive for states to enact the Model Code. The chapter also addresses such other reforms as nonpartisan election administration and analyzing the value of pre-election litigation.


Book Supplement

Larry T. Garvin Larry T. Garvin (w/the late E. Allan Farnsworth), FARNSWORTH ON CONTRACTS 2011-2 CUMULATIVE SUPPLEMENT (Walters Kluwer 2011)

This latest version of the supplement to the famous three volume contracts treatise now itself runs nearly 800 pages. Curious what commentators have to say about material adverse change clauses? Then this is the book for you. Seriously, though, Larry’s supplement includes literally thousands of cases and thorough treatment of the secondary literature with the lucid yet comprehensive coverage you would expect from Larry, as you did from his late coauthor, Professor Farnsworth.


Encyclopedia Entrie

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Mary Beth Beazley, Ballot Design, in The Encylopedia of Political Science)(George Thomas Curian et al. eds CQ Press 2010)

This piece describes the importance of ballot design issues, the major controversies, and proposed solutions. With an extensive bibliography, the entry highlights the reality that there is no “neutral choice mechanism” and also notes some of the most significant flaws that can cause confusion or failure to vote. Position impact receives particular attention and the entry covers international ballot design issues as well.