Faculty Scholarship Digest

January 2012

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.


Ruth  Colker

Ruth Colker, The Learning Disability Mess, 20 J. Gender, Social Policy & L. 81 (2011).

This article reviewing the history and current state of the law governing learning disabilities conveys great understanding of the law’s struggles in this area with brilliant concision. Beyond disability law itself, the article provides a wonderfully insightful case-study of many issues endemic to legal regulation, including the difficulty of precision, the interplay of law and politics, the challenges of federalism, the interplay between competing statutory mandates, the force of politics on law, and the challenges of constructing legal rules in relation to nonlegal disciplines, in this case, psychology.

The article traces the history of the term “learning disability” in both legal and psychological literature. Under “discrepancy” approaches, diagnosis requires finding a gap between predicted academic performance (aptitude) and actual performance (achievement). Under “response to intervention” approaches, the test centers on whether learning performance deficiencies respond to interventions. Discrepancy approaches have created biased outcomes because of the bias in many standardized tests—with the result that mandated assistance has flowed to more privileged children at the expense of the less privileged—and, as a completely separate matter, have proven costly to administer. Response to intervention approaches, on the other hand, can take the “disability” variable out of the equation entirely and have not been completely approved (at least up until the DSM V) by the psychological community. The mandates of the federal disability acts and the great discretion states have in choosing how to implement them, covered compellingly in the article, have created a situation for which the word “mess” is a gross understatement that might be laughable were so much not at stake, including admission to college and graduate school. Ruth offers no direct solution to the perhaps unsolvable problem of creating a single, unified definition of “learning disability.” Instead she situates the “mess” as a “byproduct of fixation on high stakes testing.” The way out of the mess, she suggests, is not to create better diagnostics, but rather to make less depend on the “learning disability” label, first by making the extra resources available based on need rather than disability, and second by eliminating the time-pressured test situations, particularly on entrance and proficiency exams, that unnecessarily bring the issue to the fore.

Dale A. Oesterle

Dale Oesterle, State and Local Government Subsidies for Businesses: A Siren’s Trap, 6 Ohio St. Entrepreneurial Bus. L.J. 491 (2011).

In this essay, Dale challenges the wisdom of state and local tax breaks and subsidies for local businesses designed to attract and retain the businesses within a particular state or county. Though such efforts have long been politically popular, Dale describes economists as a “new class of doubters” of their wisdom. The article situates the debate over the wisdom of these incentives for businesses in the broader debate over the economic value of government spending, specifically the extent to which a dollar of government spending stimulates economic growth: does it raise gross domestic product by fifty cents? A dollar? Two dollars? The article describes the traditional view as the “government should spend a dollar only if it can expect to increase gross domestic product . . . by more than one dollar.”

The true value of this so-called “Keynesian Multiplier” has long been debated by theoretical economists, but has been notoriously difficult to measure. Dale cites recent empirical work by Professor Robert J. Baro, however, suggesting that the multiplier is very small, in other words that one dollar in government spending usually results in much less than one dollar in economic growth. If Baro’s evidence holds up to scrutiny, the article suggests, “there should be a very heavy—almost conclusive----presumption against state and local government subsidies for businesses, large and small.” The need for such a presumption is particularly strong, Dale argues, because both politicians and business leaders benefit greatly from such subsidies described as “job creating,” even if they are in fact quite injurious to the local economy.

John B. Quigley

John B. Quigley, Palestine at the United Nations: What Does It Take to Be a State?, 20 ILSA Quarterly 29 (2011).

John is a leading academic voice on the question whether Palestine has as a matter of law achieved the status of statehood, examining the question in detail and answering it in the affirmative is his 2010 book THE STATEHOOD OF PALESTINE: INTERNATIONAL LAW AND THE MIDDLE EAST CONFLICT and numerous other articles. As the article notes, “[t]he question of Palestine’s status has bedeviled international lawyers for many years,” and in this latest discussion of the subject, John surveys some recent disputes before international tribunals and the legal and political arguments involved.

The question arose most recently in Palestine’s September 23, 2011 request for admission to the U.N.. Statehood is one of three requirements for admission to the U.N. (along with a “peace loving character” and the “ability to carry out the obligations of membership”). John cites a 1948 International Court of Justice advisory opinion for the proposition that, in considering an application for membership, the Security Council “may legitimately vote in the negative only if they regard the entity as failing on one or more of the three criteria.” The article notes that, at least in their public statements, Security Council members are offering reasons that are, in effect, ultra vires for denying Palestine admission, such as Bosnia demanding an agreement with Israel and France describing an affirmative vote as pointless because of the prospect of a United States veto. The article concludes that, in the face of such unlawful reasoning, the General Assembly, under Article 4 of the U.N. Charter, could admit Palestine on its own since, the article concludes, Palestine does meet the criteria for statehood.

Marc  Spindelman

Marc Spindelman, Foreword: Progressive Constitutionalism Considered, 72 Ohio St. L.J. 1069 (2011).

This foreword serves as an introduction to a symposium issue of the Ohio State Law Journal reflecting on Progressive Constitutionalism that brought leading constitutional scholars from around the country to Moritz for an outstanding live event that included a keynote from Professor Mark Tushnet. The Symposium authors addressed such questions as what (if anything) is the theory of progressive constitutionalism regarding the Constitution and its interpretation and where does it stand, so the Foreword does not provide pat answers, though it notes two ideas frequently associated with the concept: (i) promotion of constitutional interpretation and leadership from elsewhere than the courts (e.g., the legislature); and (ii) challenges to “originalism” as a means of constitutional interpretation.

Marc Spindelman was the Symposium’s faculty advisor and this Foreword frames the many questions addressed by the Symposium speakers and their subsequent publications in the Ohio State Law Journal. Marc concludes that there is “plenty more to do” for those wishing to work on progressive constitutionalism, and that the challenges for the field are deep, powerful and complex to such a degree that one is still driven to ask, as a student journal editor did towards the end of the Symposium, “what is progressive constitutionalism.”

Marc  Spindelman

Marc Spindelman, House Rule XII: Congress and the Constitution, 72 Ohio St. L.J. 1319 (2011).

In this article, part of a symposium on progressive constitutionalism, Marc considers a 2011 amendment to House Rule XII, which requires that for all prospective laws introduced in the House an accompanying document must specify “the power or powers granted to Congress in the Constitution” that allow it to enact the proposed law. Shortly after the amended rule was adopted, the Congressional Research Service issued a report giving the rule a narrow interpretation: it requires a statement of the relevant part of the Constitution, e.g., the Commerce Clause, but not an analysis supporting the implicit contention that the provision in question in facts provides a constitutional basis for the law. It is this interpretation that the article closely considers.

Marc notes that, while this narrow interpretation lessons the burden on the legislature, avoids thorny questions about how persuasive an analysis must be, and arguably supports separation of powers and comity between the branches, a broader interpretation requiring at least some analysis might better serve the underlying purpose of having Congress take more seriously the constitutional limits on its power. The article considers what the impact of such a broader rule might be: some deference to Congressional judgment by other branches; legislative respect for limits on legislative power, but also, perhaps, a greater sense of legislative obligation to protect rights of liberty and equality. Yet these considerations lead to a cautionary note, as neither side wants to see its “vision for a just constitution structurally foreclosed” by legislative interpretations of the other side. The article also surfaces several developments surrounding even the narrow interpretation of the rule that reveal a “constitutional fluency deficit” in the House that would make a broader interpretation even more problematic. Still, the article concludes, the small step taken by the new House rule may lead to fuller constitutional understanding in the House and, in due course and for better or worse, a more robust legislative constitutionalism in the future.


Sarah Rudolph Cole

Sarah R. Cole & Nancy H. Rogers (w/Craig A. McEwen, James R. Coben, and Peter N. Thompson), Mediation: Law, Policy & Practice (West 2012).

This outstanding three-volume treatise, which was published in its original award winning form in 1989, is now in only its third edition (the authors create annual supplements), so this publication is a significant event. The law and practice of mediation has, of course, grown exponentially over those 22 years, and there is a great quantity of new cases, statutes and empirical research for the authors to include. That sentence, though, understates the transformation of the field, and hence the substantial changes and additions to the treatise. As the authors note, when the book was first published, the primary issue was merely helping lawyers recognize mediation as a potential alternative to litigation or unassisted direct negotiation. Twenty years later, mediation has become a fundamental part of law practice, and the book must address its dramatic rise in use within courts, the training and qualifications of mediators, and the slew of litigation issues that arise from mediations, such as enforcement of settlements and breaches of confidentiality.

As a result, the treatise contains many new chapters and has undergone a substantial reorganization. One substantially revised chapter addresses the new Uniform Mediation Act, which was something the closing chapter of the last book called for. Five new chapters include coverage of the choice to mediate or not to mediate and its influences on the litigation process, a guide to the most commonly litigated mediation dispute—enforcement of settlement agreements, coverage of judicial power to compel mediation, as well as the law of sanctions, costs and attorney’s fees, coverage of malpractice, unauthorized practice and other ethical issues in the context surrounding mediation, coverage of key mediation advocacy themes, including “how best to manage the tension between mediation’s invitation for collaborative problem-solving and the necessity of protecting clients from exploitation,” and thorough review and discussion of the increasing body of social science research on mediation. In short, this is a substantial and consequential work deserving of its leading place in the field.

Peter M. Shane

Peter M. Shane ed. (w/Stephan Coleman), 48 Connecting Democracy: Online Consultation and the Flow of Political Communication (MIT Press 2012).

This extraordinary volume is the result of a three-year international, interdisciplinary collaboration between nineteen researchers under funding ultimately deriving from the National Science Foundation. It started with the founding of the International Working Group on Online Consultation and Public Policy Making, under Peter’s leadership, to respond to a call for international, multidisciplinary projects on digital government. The group included researchers based in the United States, the United Kingdom, France, Israel, Italy, Slovenia and Sweden with expertise in law, communication, political science, public policy and information science, each of whom are authors of some part of the book. To prepare the book, the group met over several years at the Kennedy School of Government at Harvard University, at the University of Leeds, at The Ohio State University, at the Aspen Institute in Washington, D.C., and at SciPo in Paris, France.

The book’s object is to assess the democratic effects of the online-consultation phenomenon, for example, government sponsored or authorized online fora for public input on policy making. The book’s seventeen chapters cover online consultation’s relation to the flow of political information, the meaning of online communication to its participants, and the legal frameworks for such consultations. The book’s extraordinary breadth of perspective resulting from its international and interdisciplinary character is truly groundbreaking in this field. The authors strike a balance between recognizing the force and potential of the online consultation phenomenon and the many forms it can take on the one hand, and avoiding the “naive optimism” that can flow from seeing the technological opportunities without remembering that “politics is about power, and power does not give way easily,” destabilizing technologies notwithstanding.

Book Chapter

Peter M. Shane

Peter M. Shane, Online Consultation and Political Communication in the Era of Obama: An Introduction, in Stephen Coleman & Peter M. Shane eds., Connecting Democracy: Online Consultation and the Flow of Political Communication (MIT Press 2011).

This introductory chapter to Peter’s international, interdisciplinary book covers a lot of ground, surveying the potential highs and lows for e-democracy in general, and for electronic public consultation (the subject of the book) in particular, providing an overview of the chapters to follow, and specifically describing and assessing some of the online consultive practices of the Obama administration during its early years. The chapter begins by describing an imaginary online utopia, where the internet is put to optimal use for democratic purposes by a public equipped to do so, both technologically and otherwise. The chapter uses this background to frame both the potential for online consultation and the barriers.

The first of these barriers is the consistent absence to date of tying such consultation in “any ascertainable, accountable way to government policy making.” A second barrier is a general lack of public participation in such consultation—and, after all, Peter notes, if it doesn’t matter (barrier #1), why should someone participate? A third and important issue is that without the equality of the online utopia, online consultation could become a vehicle for furthering subordination. A fourth issue has been that the flood of online information, rather than eliminating the need for intermediaries, has just created a new class of such intermediaries (think Google) that present their own potential problems of privacy and distortion. At the same time, the picture is not all dark and the chapter turns to the great consultative potential, which most readers of this digest will easily be able to imagine. Peter then considers some of the early efforts of the Obama administration in this area, finding both the potential dangers and advantages—on a small scale—brought to life even in these initial efforts.

Peter M. Shane

Peter M. Shane (w/Polona Picman Stefancic), The Legal Environment for Online Democracy, in Stephen Coleman & Peter M. Shane eds., Connecting Democracy: Online Consultation and the Flow of Political Communication (MIT Press 2011).

This chapter is a part of a book that closely examines, from an international and interdisciplinary perspective, the current state, challenges, and possibilities for a specific type of online democracy initiative: online consultation. In this chapter, Peter and his coauthor (the director of the Rea IT Research Centre in Slovenia) examine a part of the legal infrastructure affecting such consultation. Relevant laws can be both administrative (e.g., notice, record-keeping or bureaucratic approval requirements) and fundamental (e.g., free expression requirements). While either type of legal regulation can have a very significant impact on a government’s willingness and success with regard to online consultation, this chapter focuses on the latter category.

Both the United States and the European Union provide substantial communication rights, and the chapter notes both the significance of the issues involved and the uncertainty that will persist pending their resolution. On the one hand, for example, “[p]olicing too stringently” government efforts to “maintain the decorum of the consultations” may keep the government from engaging in the consultations at all. On the other hand, courts may conclude that “preserving order in an online space to which no one is physically confined” is less important and the risk of using such regulation to suppress expression based on viewpoint may be too great. The chapter explores these and other questions with regard to communication rights and also covers information rights and potential liability of government actors. Important in their own right, these sections also highlight some interesting difference between United States and European Law. For example, EU countries tend to create greater obligations for the government to actually consider public comments (for example, by explaining why public suggestions were not adopted); they also lack a principle of sovereign immunity that generally protects executive officials from suit. Because there is so much uncertainty in these areas—many of the best guesses as to the legal rules are based on decisions in the “offline public sphere”—the chapter urges governments to consider these issues “head on and adopt (or eliminate) legal rules after squarely considering their implications for online forums.” The chapter provides a great roadmap for fulfilling that charge.