Faculty Scholarship Digest

December 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.


Article

Daniel C.K. Chow Daniel Chow, Lessons from Pfizer’s Disputes Over its Viagra Trademark in China, 27 MARYLAND J. OF INT’L L. 82 (2012).

In China, everyone refers to Viagra as Weige, a term coined by the Chinese media shortly after Viagra’s official launch in the United States. “Weige is an almost exact homophone of Viagra” for a Chinese speaker, but also has a literal meaning of “great older brother,” which amounted to “a gentle and humorous name” that “spoke to China’s consumers” and aligned “with China’s cultural attitudes towards sex.” Pfizer’s own Chinese designated name for Viagra proved a flop, and, by the time Pfizer got around to seeking trademark protection for Weige in China, another company had gotten there first, with devastating consequences for Pfizer’s ability to control the Viagra market in China.

This article takes us on a guided tour of this debacle, using these events as a case-study to explain how multinational companies come to fail to proactively trademark their products’ Chinese transliterations and why the consequences can be so financially damaging, even though the company does hold the patent on creating the product in question. Dan also sets out the solution for multinationals: obtaining a Chinese-language trademark based on transliteration before the English-language mark becomes public.


Steven M. Davidoff

Steven M. Davidoff, A Case Study: Air Products v. Airgas and the Value of Strategic Judicial Decision-Making, 2012 COLUM. BUS. L. REV. 2:502 (2012).

This article was a part of a symposium on the Delaware Court of Chancery. As his title suggests, Steve uses his contribution to closely analyze the litigation surrounding Air Product’s hostile takeover effort targeting Airgas (perhaps the most prominent hostile takeover battle of 2010) with an eye towards assessing the judicial opinions in the case (there were three key decisions). Steven contrasts the elements of those decisions that might be considered “process oriented,” i.e., apolitical judgments based on positive law with gaps filled by reference to prior law, with those that might be considered “strategic,” i.e., judgments informed by “the institutions and forces that can affect their status and goals.” In the case of Delaware courts, strategic considerations can and certainly do include that judges “derive significant prestige [and post-retirement benefits] from their status as the leading corporate jurists of the land” and Delaware’s position as the preeminent jurisdiction for incorporation—“more than one-fourth of its state revenue is derived from public incorporations.”

In the Airgas matter, Steven finds both strategic and process-oriented decision-making. Two examples of the former receive the closest scrutiny. First, at a crucial stage of the battle, the Delaware Supreme Court overturned a decision of the Court of Chancery, with the Supreme Court’s decision favoring the target company, whereas the Court of Chancery had ruled for the putative acquirer. The article sets out how, on a positive law basis, the Supreme Court’s decision was surprising, but as a strategic matter less so, since a perception of protection from hostile takeovers may be an essential part of Delaware’s attractiveness for incorporation. Indeed, Steven notes that the target’s brief to the Supreme Court framed its argument to give prominence to this risk of corporate flight. Steven critiques the Court’s decision not for considering this strategic factor, but for misweighting it: the number of companies affected by a ruling for the acquirer would actually have been very small and the rule-of-law loss from ignoring certain precedents should have outweighed this consideration, even as a strategic matter. On the other hand, Steven has a kinder assessment of a Court of Chancery decision in the litigation in which the judge stated that precedent forced him in one direction but also explained why, in his view, the precedent was mistaken, thus “walk[ing] a line between . . . doctrinal development [and] the desire and need to cater to wider constituencies.”


Katherine Hunt Federle

Katherine Hunt Federle (w/Danielle Gadomski), The Curious Case of the Guardian Ad Litem, 36 UNIV. DAYTON L. REV. 337 (2012).

In this article, Kate and her coauthor trace the history of the guardian ad litem and the guardian’s role representing children in abuse and neglect proceedings by advocating for the “best interests of the child”; they then use that history to critique this dominant contemporary approach. The concept of guardianship traces back to Roman Law, and the ad litem (for litigation) traces to medieval England, where he was appointed to represent minors with property in litigation. As the article explains, however, these concepts developed when parents did not have “the sort of custodial rights and power we recognize today.” The juvenile court movement at the start of the twentieth century continued this view of the state as ultimately responsible, particularly for children of the poor, so that the court “could interfere with the parental right of custody when the child’s welfare so demanded, as when the parent was deemed neglectful, incompetent or had failed to provide for the child as ‘required by both law and morals’.” In the latter half of the twentieth century, the article explains, concern grew about the rights-infringing nature of such interventions and the incompetence of judges to handle them; so the guardian ad litem emerged, but still to represent the best interests of the child—in sharp contrast of the usual role of a lawyer to represent a client’s expressed wishes.

Kate and her co-author critically examine this state of affairs. First, they note the very structure evidences a recognition that actors in an abuse or neglect proceeding—parents, social services agencies, judges—cannot determine the best interest of a child on their own. Second, they note that the extraordinary indeterminacy of the “best interests” standard invites arbitrary and biased outcomes in particularly disturbing ways in relation to race and class: “guardians may be less respectful for their wards’ preferences, viewpoints, and desires, choosing instead to exert extraordinary power over the direction of the case. Bias may also lead guardians to assume a more adversarial posture with respect to parents and align with the state agency seeking to remove children.” The article concludes with a call for empowering children with a voice in proceedings affecting their relationships with their parents, but taking children’s “claims seriously . . . is only possible if we acknowledge that the guardian ad litem is a barrier to reform.”


Katherine Hunt Federle

Katherine Hunt Federle, A Tribute to Victor Streib, 38 OHIO N. L. REV. 1 (2012).

In this tribute to Professor Streib, Kate points to his accomplishments in modeling the connection between the theory and practice of law. She cites Streib’s book, Death Penalty for Juveniles, as a leading scholarly piece on the problems with capital punishment for children while he also “walked the walk of the practitioner,” by representing juveniles in capital cases, including one that reached the United States Supreme Court. Kate describes his contributions as changing “the face of juvenile justice in the United States for the better.”


Edward B. Foley

Edward B. Foley, Electoral Dispute Resolution: The Need for a New Sub-Specialty, 27 OHIO STATE J. ON DISP. RESOLUTION 281 (2012).

In this essay Ned calls for development of a new field: electoral dispute resolution — “the previously uncharted intersection of two existing fields: election law and dispute resolution.” Ned notes that election disputes have some distinctive features (such as often being a zero-sum game) that require adjustment from some of the more traditional areas for alternative dispute resolution (such as labor-management relations) as well as certain political pathologies. At the same time, Ned explains how electoral disputes differ from other political disputes, creating the need for this distinctive field of work. The hope “is that the newly emerging field of electoral dispute resolution can pursue the development of neo-Madisonian solutions to the original Madisonian problem.” If resolving the problem takes “several generations,” so be it. Ned points, with specific examples, to both the need and the advances that suggest solutions are possible.


Garry W. Jenkins

Garry Jenkins, Nongovernmental Organizations and the Forces Against Them: Lessons of the Anti-NGO Movement, 37 BROOKLYN J. OF INT’L L. 459 (2012).

This rich and comprehensive article thoughtfully examines the rapid rise of nongovernmental organizations (“NGOs”) and the critiques of NGOs that have arisen from both right and left and from governments, and offers normatively and instrumentally prescriptive lessons for NGOs from this analysis. International NGOs have grown tremendously in size and significance to become important participants in international “humanitarian relief, conflict resolution, economic and social development, environmental protection” and much more. This growth and influence, carefully described in the article, has provoked a backlash that the article also details. From the right, NGOs are criticized for undermining democratic practices and national sovereignty, as well as for undermining free-markets and corporate interests. From the left, in ironic contrast, NGOs are criticized for “furthering Western capitalist interests,” for being ultimately more concerned with the interests of their underlying funding sources than of the populations they are organized to serve.

What to make of these critiques? “Accountability” is a concept increasingly imported from the private to the nonprofit sector with inadequate appreciation of the differences in its application. Garry is nationally recognized for his work mapping those differences and their effects and for developing important critiques of the new fashion of “philanthrocapitalism.” While a supporter of NGOs, Garry uses that same toolbox to offer them lessons from the critiques they now face. While rejecting the notion that NGOs have become too powerful, Garry argues that NGOs based in developed countries have become too directive of the NGOs they support in developing countries. NGO’s must not only be “accountable” to funders, but also sensitive to their “authenticity and voice,” as opposed to merely serving as subcontractors for funders in developed countries. “As foundation assets and interest in international philanthropy grow, the anti-NGO movement will grow as well, unless . . . funders address the problem and their own responsibility for its creation.”


Book

Stephanie Hoffer

Stephanie Renee Hoffer (w/Peter Postlewaite), INTERNATIONAL TAXATION, CORPORATE AND INDIVIDUAL (7th Ed.) (Car. Acad. Press 2011).

The latest edition of this handsome, leading two-volume treatise in a constantly evolving field maintains its currency as well as the other features that have made it a go-to resource in the area: clear and comprehensible writing, thoughtful, accurate and complete coverage, and valuable footnotes to deeper treatments of particular issues. The volumes cover both the taxation by the United States of U.S individuals and entities on their income outside the U.S. and the taxation by the United States of foreign individuals and entities on both their U.S. and “foreign source” income.


Book Review

Edward B. Foley

Edward B. Foley, A Tale of Two Teams, reviewing Jay Weiner, THIS IS NOT FLORIDA: HOW AL FRANKEN WON THE MINNESOTA SENATE RECOUNT (Univ. Minn. Press 2010), 10 Election L. J. 475 (2011).

Ned is the leading academic expert on the Minnesota recount, so he is well-positioned to review this blow-by-blow account written by a sportswriter who ended up being assigned to daily coverage of the senate battle by an online Minnesota daily. Ned gives Weiner generous praise for strengths that may be traced to his journalistic and sports writing background. The book is “vivid in its details,” “you are in the room with all the participants,” and the personalities of those involved are especially well described. “Most valuable of all,” Weiner was able to get the judges involved to share some of their internal feelings about what was going on, leaving readers “grateful that Wiener is able to give this normally unavailable glimpse behind the judicial curtain.” Finally, Ned is in deep agreement with the essential conclusion of the book captured in the title: the Minnesota recount was entirely different (in a good way) from Florida in 2000 (Ned, of course, has analyzed why this was so). Not surprisingly, Ned concludes that Weiner is much less strong in his description of some of the legal arguments, in particular underplaying the potential merits of some of Norm Coleman’s positions. Nonetheless, “the favoritism displayed for one side of the dispute is not a reason not to read” the book. Its “vivid description of how it felt for all the relevant players to live through this intense and important experience” not only makes it an interesting read, but “gives the book lasting value” as a contribution to understanding “the psychology of democratic politics.”


John B. Quigley John Quigley, Review of Brian K. Grodsky, THE COSTS OF JUSTICE: HOW NEW LEADERS RESPOND TO PREVIOUS RIGHTS ABUSES (Univ. Notre Dame Press 2010), 70 SLAVIC REV. 906 (2011). In this brief review, John discusses this account of “responses to prior-regime human rights abuses in eastern Europe.” The book relies on extensive interviews in the countries in question and “provides much useful insight,” at least for knowledgeable readers with prior knowledge about the abuses in question. Although John calls out Grodsky for not showing uniform care on technical detail, he concludes that Grodsky gives the reader a “sound analysis” of the different approaches in four eastern European countries and, “[t]hrough interviews with well-connected individuals, . . . has amassed more detailed information than one finds in other sources on how decisions were made about dealing with the past.”

Book Supplement

Joshua  Dressler

Joshua Dressler & Alan C. Michaels, 2012 SUPPLEMENT TO, UNDERSTANDING CRIMINAL PROCEDURE, VOL. I INVESTIGATIONS (5TH ED.), VOLUME II ADJUDICATION (4TH ED.).

This latest supplement to the Dressler/Michaels treatise brings the two volumes up-to-date through the 2011-12 Supreme Court term. Coverage includes Jones v. United States, in which the Court considered when GPS tracking constitutes a Fourth Amendment “search,” (at least when it is more than “short term”), whether a subsequent adjudication by plea or trial eliminates the prejudice of ineffective assistance of counsel during earlier plea bargaining (it doesn’t), and how the Court’s Crawford rules apply to a DNA report created before any particular suspect was targeted (no constitutional bar to admission of report, but Court’s 4-1-4 decision so splintered that, in the words of Justice Kagan, “what comes out of . . . th[e]se holdings is — to be frank — who knows what”).


L. Camille Hébert L. Camille Hébert, 2011-12 SUPPLEMENT TO EMPLOYEE PRIVACY LAW (Thomson-West). Camille is the author of this leading treatise on the subject which, in this electronic era, she updates annually rather than putting out a new edition. This allows her each year not only to update every chapter, but regularly to put out new versions of individual chapters, on a rolling basis, keeping the supplement from becoming hopelessly thick. In this year, there were two revised chapters: “Electronic Monitoring and Surveillance,” which now runs 282 pages, and Discrimination Based on Sexual Orientation and Gender Identity,” which now runs over 400 pages. Of course, both of these important areas remain subjects of continuing doctrinal development; indeed, the section on gender identity discrimination is entirely new.

Comment

Martha  Chamallas

Martha Chamallas, Warm Reasoning and Legal Proof of Discrimination, in Jon Hanson ed., IDEOLOGY, PSYCHOLOGY, AND LAW (Oxford Univ. Press 2012).

Martha’s comment is part of an interdisciplinary volume in which chapters from one discipline are followed by comments from another, in this case a chapter from psychology followed by a comment from law. The chapter traces the intellectual history of the debate within psychology over whether judgments are rooted in motivations and emotions (so-called “hot” processes) or in cognitive, rational operations, so-called “cold” processes. Martha summarizes: “As is the fate of most dichotomies, they report that the latest thinking in the field now generally endorses a ‘warm’ view of human reasoning that concedes the importance of both processes” and now focuses on how they interact. With “‘warm’ reasoning,” Martha notes, “it is axiomatic that individuals are seldom fully aware of the factors influencing their judgments and often mistakenly believe they are objective and unbiased.”

Martha discusses the relevance of these conclusions from social psychology to critical ongoing issues of anti-discrimination law: (i) disparate treatment analysis vs. a requirement of conscious discrimination, and (ii) the relevance and application of “mixed motivations” when an employment decision is affected by both legitimate and illegitimate factors. The comment notes that the conclusions of psychology provide “considerable ammunition” for some of the traditionally liberal sides of these debates. The prevalence of unconscious bias undermines the demand for proof of conscious discrimination, and “human beings are so adept at selectively marshaling principles to support a desired result that . . . . the only way to ferret out inconsistency and bias is to look at a larger pattern of decisions. . . .” Moreover, in mixed-motivation cases, attempting to assess the relative weights of the “legitimate” and “illegitimate” factors amounts to such a fiction that “the law would be better directed toward answering the normative question of whether the disparate treatment was justified under the circumstances.” On the other hand, she notes that the human mind’s “warm” reasoning to use principle to match its preference “can be as robust in situations favoring minorities as it is in anti-minority cases,” putting liberals to the hard choice of endorsing a broad psychologically informed definition of causation in all cases, or to “shift ground and . . . argue for adoption of an asymmetric, antisubordination approach” that limits antidiscrimination law to “dismantl[ing] entrenched social hierarchies.”


Supreme Court Brief

Sharon L. Davies

Sharon L. Davies, Brief Amici Curiae Coalition of Black Male Achievement Initiatives in Support of Respondents, Fisher v. University of Texas, No. 11-345 (2012).

In Fisher, the Court faces the question whether the University of Texas’ use of race in undergraduate admissions decisions violates the Constitution. This brief was filed on behalf of a group of initiatives and centers across the United States directed at black male achievement. The brief presents a series of arguments in support of the constitutionality of holistic race-conscious review of undergraduate applications with a particular focus on its relevance for African-American males.

Following the Court’s rubric under Gruter v. Bollinger, the brief argues that holistic review is an absolute necessity for achieving the diverse learning environment that the Court has recognized is a compelling interest for the State in preparing its future citizens. In support of this argument, the brief disaggregates racial and gender data, demonstrating that the numbers of African-American males at selective universities are already shockingly low—and would be even lower without independent review. As a separate argument, the brief contends that the continued disproportionate isolation of African Americans “from educational, economic and social opportunity” creates an independent compelling interest for the State to reduce the conditions that create this inequality of opportunity, and that holistic review “has been one of the most potent tools for keeping the doors of our universities open to these students and attracting them inside.” The empirical evidence in support of both arguments paints a devastating picture.


Symposia

Deborah Jones Merritt Deborah J. Merritt, Symposium, The Restyled Federal Rules of Evidence, 53 WILLIAM & MARY L. REV. 1435 (2012). This symposium, as its title suggests, discussed the new federal rules of evidence, which have been “restyled” to make them more readable. The purpose of the change was thus stylistic and expressly intended not to make substantive revisions. Debby’s contribution explains that, notwithstanding that general intent, Rule 1101, which governs when the Rules of Evidence do or do not apply (e.g., they do not apply in Grand Jury proceedings) has, in fact, been substantively changed. Debby provides a more detailed analysis of this shift in a Touro Law Review article, but the gist of the change is that the Rule went from giving an essentially exhaustive list of the proceedings at which the Rules do not apply to a merely illustrative list. Debby sets out how the drafters made this switch because they perceived that the existing rule had been interpreted as illustrative, though written as exhaustive, but demonstrates that this prior interpretation was far from uniform.