Faculty Scholarship Digest

September 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

Steven M. Davidoff, Rhetoric and Reality: A Historical Perspective on the Regulation of Foreign Private Issuers, 79 Cin. L. Rev. 619 (2010).

Over the past ten years, SEC regulation (and deregulation) has significantly eased the path for foreign private issuers to list (and, as importantly, delist) securities in United States markets. This article, part of a symposium on the globalization of securities regulation, looks closely at the process by which that regulatory shift occurred as well as at the consequences. Steve demonstrates how catch phrases like “mutual recognition” and “global competition” seemed to create a political whirlwind that swept away other regulatory concerns and shifted regulation of foreign issuers from a paradigm of treating foreign issuers the same as domestic issuers to treating foreign issuers the same as they are treated abroad. “The consequence is that regulation has been devalued beyond economic necessity, creating incentives for foreign issuers to list in the United States in order to extract regulatory advantages to the detriment of retail investors.”

The careful demonstration of the process by which the SEC adopted a one-size-fits-all approach to foreign issuers, and then how that one-size fits all approach was taken as a given and led to further easing of restrictions, is remarkable, but is not intended to argue about the merits of specific SEC actions; Steve illuminates numerous potential pitfalls from deregulation that can (and indeed have) befallen retail investors, but also acknowledges some potential advantages of the rules the SEC has adopted. Instead, the article contends that, in the context of very important and ambitious rule-making, the SEC “was not driven by any normative regulatory technique but by the political rhetoric of the time,” and suggests that this outcome is not only troubling with regard to a purportedly independent agency, but also subject to repetition in other important areas, such as hedge-fund regulation and proxy-access regulation.


L. Camille Hébert

L. Camille Hébert, The Causal Relationship of Sex, Pregnancy, Lactation, and Breastfeeding and the Meaning of “Because of . . . Sex” Under Title VII, 12 G’town J. of Gender & the L. 119 (2011).

This article addresses the legal treatment of claims by women against employers who discriminate against them because of their breastfeeding or lactation—for example, an employer who terminated a woman for breastfeeding her one month old in her car during her lunch break. Title VII prohibits discrimination “because of . . . sex,” and, when the United States Supreme Court held in 1976 that discrimination based on pregnancy was not discrimination based on sex (because, while all pregnant people are women, non-pregnant people are both men and women), Congress passed the Pregnancy Discrimination Act (“PDA”) which states that “because of . . . sex” includes “on the basis of pregnancy, childbirth or related medical conditions” and contained legislative history stating that the Gilbert decision had misunderstood the meaning of “because of sex.”

In canvassing the treatment of lactation related discrimination under these statutes and their state analogs, the article discovers a majority approach of concluding that such discrimination is not prohibited by these statutes and sets about systematically demonstrating that this is the wrong result. Camille meticulously reviews the language and history of these statutes and develops careful arguments that such discrimination is both because of sex under Title VII (since they are “intrinsic” to sex) and because of a “related [to pregnancy/childbirth] medical condition” under the PDA. The article then describes the scope of disparate treatment and disparate impact claims that would follow. A final section canvasses legislative actions that have provided protection against this kind of discrimination, legislation that the article considers laudable but, if the preexisting statutes were properly understood, superfluous.


Garry W. Jenkins

Garry W. Jenkins, Who’s Afraid of Philanthrocapitalism?, 61 Case Western L. Rev. 753 (2011)

This article closely examines and critiques the related phenomena of philanthrocapitalism and strategic grantmaking, which are profoundly changing the operation of the nonprofit sector in subtle but very significant ways. From both theoretical and empirical perspectives the article reveals the subtle but very serious negative consequences of these highly touted new approaches.

“[P]hilanthrocapitalism seeks to improve the practice of philanthropy through the application of techniques common to for-profit businesses.” These techniques includes an emphasis on efficiency, performance metrics, and strategy. Garry documents how a movement that began with a few high profile billionaires moving into philanthropy has spread to foundations with a number of profound effects on nonprofits. Foundations have moved to making fewer and larger grants, have placed much greater limits on what grants can be used for and have shown an increasing tendency (documented in the article’s original research) towards “proactive grantmaking,” in which the foundation initiates the idea and the grantee carries it out. Garry analyzes how these changes may damage nonprofits. For example, the emphasis on metrics fails to understand the desirable social outcomes sought by nonprofits may be less easily measured than “profit” in business, and may create perverse incentives for grantees while stifling innovation. Another example: the “top-down” approach of proactive grantmaking substitutes the judgment of the on-the-ground charities and nonprofits about what to try and what will work with the one-size-fits-all and often less expert views of the grantors. The article takes care to acknowledge the potential advantages of the new approach, but raises very important red flags about critical shifts that, once identified and documented by Garry, will be readily visible to anyone working in the field.


Stanley K. Laughlin Jr.

Stanley K. Laughlin, Jr., U.S. Territories and Affiliated Jurisdictions: Colonialism or Reasonable Choice for Small Societies?, 37 Ohio Northern Univ. L. Rev. 429 (2011)

The United States currently has nearly five million “territorial citizens,” people living in those parts of the United States, such as Puerto Rico or American Samoa, that are not a part of any state. In this article, drawing on his earlier work, Stan details and defends the reasons why an overwhelming majority of these individuals wish to continue their affiliation with the United States. To begin with, the article emphasizes “insular Americans are Americans, and think of themselves as such.” Beyond this fundamental point of self-identity, the article also points to the advantages for strategic defense, political and economic reasons. The article then turns to the rights of territorial citizens, noting the need to correct their lack of voting representation at the federal level. Beyond that, Stan offers an interpretation of Supreme Court jurisprudence that would apply the Constitution and its rights provisions in the same way in the territories as the rest of the United States, apart from narrowly bounded exceptions when such application would be “anomalous” or “impractical.” He would also have federal courts scrutinize legislation that treated territorial citizens differently, for example, by providing federal benefits in lesser amounts, under a heightened scrutiny pursuant to footnote 4 of Carolene Products.


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Marc Spindelman, Sexual Freedom’s Shadows, 23 Yale J.L. & Feminism 179 (2011)

In this comprehensive essay, Marc uses the opportunity to review Tim Dean’s 2009 book, Unlimited Intimacy: Reflections on the Subculture of Barebacking, as an opportunity for a broader exploration and biting critique of the ideology of sexual freedom, a framing of sex’s value as freedom from society’s strictures, as “sheer power.”

The essay begins by carefully examining Dean’s purportedly neutral examination of the subculture of barebacking and the provocative claim that a significant group of men seek unprotected sex in order to contract HIV and, even more provocatively, that such action positively bespeaks sexuality’s march towards freedom. While questioning many of Dean’s empirical assumptions, the essay also places Dean’s arguments in a broader context. Far from an original moral view, the essay argues, Dean’s vision fits into a long tradition of arguing for “sexual freedom”—pleasure above all. Marc’s previous work has established him as a leading critic of this view, and he brings his expertise to bear here to critique Dean’s ultimate thesis. Marc identifies the extent to which Dean’s ethical argument, his ability to discount or deny the costs of sexual freedom, depends on the concept of consent: “consent marks the distinction between ethical and unethical sex.” Marc proceeds to reveal the problems with such an account. First, “victims of past sexual violation” may have been programmed by past abuse to “consent” to exercises of sexual power that violate and destroy. Second, it may be “that gay men in a homophobic society have histories of anti-gay abuse from childhood on” that ought to be relevant to the meaning of consent. Indeed, Marc argues, Dean’s reliance on the concept of consent not only fails in its justificatory aims, it also “may simply hide ways in which consent is continuous with unethical abuses of power.”


Book Chapter

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Joshua Dressler, Duress, in Philosophy of Criminal Law (John Deigh and David Dolinko eds.) (Oxford Univ. Press 2011).

In this book chapter, Joshua sets out the law of duress— a criminal defense centered on a claim of being coerced into committing a crime—while offering and defending his own view on the best philosophical justification for the defense and noting where the law follows and departs from that logic. After setting out the common law elements of duress and modern reforms and the extent of their adoption, Joshua canvasses the arguments for duress as justification and duress as excuse, concluding that the “best explanation of duress is that coercion excuses when a person lacks a fair opportunity to act lawfully,”—the choice theory of excuses. From this conclusion, Joshua argues for an expansion of the duress defense beyond the limits of the common law, by allowing the defense for homicide, and beyond even the broader defense provided by the Model Penal Code, by extending it to duress imposed by nonhuman forces. The chapter also sees duress as a plausible, perhaps the most plausible, way to understand the battered woman defense: “a woman who has been beaten and degraded regularly by her partner and who kills him while he is asleep might not be able to claim self-defense (for lack of immanency or immediate necessity) or even lesser-harm necessity but would seemingly have the right to have a jury consider a claim of duress on the ground that the abuser’s prior violence would cause a person of reasonable firmness to act as she did.”


Essays

John B. Quigley

John Quigley, Does the Prosecutor of the ICC Have the Authority to Open an Investigation into Alleged Crimes Committed in the 2008-2009 Gaza Conflict?, UCLA Human Rights & Int’l Crim. L. Online Forum, gaza question (2011)

In this invited contribution to an online debate, John contends that the International Criminal Court has jurisdiction over alleged war crimes during the Gaza conflict “because the prosecutor has in hand a consent declaration from the state on whose territory the alleged crimes were committed.” The state in question is Palestine, so John’s argument in the debate turns on the statehood status of Palestine, though he notes there would be other pro-jurisdiction arguments in the absence of Palestinian statehood. In this contribution, John draws on his 2010 Cambridge University Press book addressing Palestinian statehood. In a related post on the same forum, John also responds to Professor George Fletcher’s arguments that Palestine is not a state and, hence, that the ICC lacks jurisdiction.


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Paul Rose, On the Role and Regulation of Proxy Advisors, 109 Mich. L. Rev. First Impressions 62 (2010)

Corporate governance structures have undergone substantial change over the past decade, driven in significant part by the views of the proxy advisor firms that provide “corporate governance ratings” to institutional investors. Even though neither these firms recommendations nor their ratings have been shown to improve either governance or performance, there is no doubt that this tail does wag the corporate dog: “firms feel compelled to make the [recommended] change in order to improve its corporate governance rating.” In this commentary Paul discusses why institutional investors pay for these ratings agencies, adding an original suggestion to the literature: that institutional investors support the ratings industry because the rise of the latter tends to shift power from directors and managers to shareholders, even if their ratings qua ratings have no value. The problem Paul sees is that “powerful shareholders may use their [newfound] influence to extract gains at the expense of less powerful, less activist shareholders.” After canvassing possible ways of improving agency rating performance, the commentary suggests stricter SEC scrutiny and enforcement of institutional investors’ fiduciary duties in regard to proxy voting that does not let them simply rely on ratings agencies when the latter are riddled with conflicts of interest or lack independent evidence of reliability.


Report

Steven F. Huefner

Steven F. Huefner, Daniel P. Tokaji, & Edward B. Foley (with Nathan A. Cemenska)  From Registration to Recounts Revisited: Developments in the Election Ecosystems of Five Midwestern States (2011)

This 90-page report is a follow-up to 2007's widely acclaimed study by the authors of the election-administration response in five key Midwestern states (Illinois, Michigan, Minnesota, Ohio, and Wisconsin) to the Help America Vote Act of 2002. The report provides objective and insightful analysis into developments in election administration institutions and culture, “convenience voting” (e.g., early voting), other legislative changes (e.g., voter I.D. laws), post-election processes (including a close look at the resolution of the very close 2008 Minnesota senate election) and voter registration and databases (in which a federal “matching” requirement has produced much litigation).

In canvassing these areas, the authors continue to evaluate systems on three core values: “access, integrity, and finality.” On these criteria, the report documents both successes and failures over the past four years, though much work clearly remains to be done. The report points to specific areas of vulnerability (e.g., Illinois badly needs reform of its post-election dispute processes) and offers specific suggestions for addressing them. Interestingly, voting technology and the validity of provisional ballots were less of an issue in 2008 than they had been in recent elections and receive consequently less attention in this report. The book builds on the incredible repository of knowledge accumulated by Election Law @ Moritz, while also continuing to draw on insights from the many different actors and stakeholders in the election systems of these states.