Faculty Scholarship Digest

March 2013

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

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Guy A. Rub, The Economics of Kirtsaeng v. John Wiley & Sons, Inc., 81 Fordham L. Rev. Res Gestae 41 (2013), http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1016&context=res_gestae.

In this essay, Guy Rub offers his advice on how the Supreme Court should resolve the application of the “first sale doctrine” to copyrighted works purchased abroad—the issue presented in the then pending case, Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. ___ (2013). The importer pressed for a rule that allows buyers of copyrighted works to freely import and resell them. The publisher sought to prohibit the unlicensed importation of works published abroad. Rub contends that both positions are economically unsound. He sets out the economic justification for a rule permitting the copyright owner to control importation into the country, but limit the control once the items are in the US. Essentially this would require importers (sophisticated professionals) to get a license, but not resellers (individual small-scale sporadic sellers). Unfortunately, Rub’s sound argument for economic efficiency was lost on the Court’s majority. On March 19, 2013, a six-justice majority adopted the view advanced by the Thai importer. If it is any consolation, Justices Kagan and Alito seem in favor of Rub’s rule, but nonetheless concur leaving it to Congress to do the implementation.


Books

John B. Quigley

John Quigley, The Six-Day War and Israeli Self-Defense (2013).

John Quigley’s new book tackles the central question of legal justification for Israel’s resort to force against Egypt in the June 1967 War. Based upon access to now declassified documents from the UK, USSR, US, and France, Quigley challenges the popular Western view that Israel was legally justified in attacking Egypt as a preventative war. Central to the self-defense rationale is that the Arab states, principally Egypt, were both capable of launching an offensive attack on Israel and that such an attack was imminent. The problem with this justification is that the four major powers all knew it was false.

In the days just prior to start of the conflict, reports from foreign intelligence agencies, such as the CIA, concluded that the Arab states lacked the ability for an all-out attack on Israel and that that troop movements were of a defensive posture. According to President Johnson, “All of our intelligence people are unanimous regarding assessment; that an attack is not imminent, and if the UAR attacks ‘you will whip the hell out of them.’” And that’s what happened. Having already determined to make a preemptive strike, Israel engaged in what Quigley calls a “Turkey Shoot” with the Israeli air force initiating hostilities by attacking the Egyptian air force on the ground. Foreign intelligence on Arab military ability proved correct; Israeli victory in this Six-Day War was a foregone conclusion.

Quigley’s book not only challenges the popular self-defense rationale for the war itself, but looks to its legacy on the legal justification for war. State aggression to defend against imminent attack finds legitimacy after the June 1967 War, despite the reality that there was no imminent danger present then. The institutional failure of the United Nations also looms large. Both the U.N. Security Council and General Assembly failed at the time to make a finding of responsibility for the 1967 War, despite the foreign intelligence of the major powers pointing the finger at Israel. As Quigley points out, it is this failure that relegates the region to violence for the next half-century.


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Cybersecurity (Peter M. Shane and & Jeffrey Hunker eds., 2013).

This book is the product of the March 2011 conference at Ohio State hosted by I/S: A Journal of Law and Policy for the Information Society. The goal of the conference and the papers collected in this volume is to increase public dialogue and foster more informed public debate on the contours of cybersecurity policy. Cybersecurity is the body of technologies, policies and practices designed to protect networks, computer, and data from attack, damage or unauthorized usage. Peter Shane not only edits the book, but also contributes a chapter as well. In the book’s final chapter, Cybersecurity Policy as if “Ordinary Citizens” Mattered: The Case for Public Participation in Cyber Policy Making, Shane strikes at the heart of the current abdication of cybersecurity to experts. Finding this totally unsatisfactory, he describes both the need for public engagement in cyber policy and a means to obtain it. Particularly interesting is the description of deliberative polling—a method of random sampling to select participants from among the various stakeholders who ultimately engage in face-to-face deliberation to produce a form of democratic recommendation. The ultimate benefit is the input of both experts and lay persons in an area of public policy where currently these groups simply talk past each other (if they are talking at all).


Ric  Simmons

Ric Simmons, Strategies and Techniques for Teaching Evidence (2013).

This little book is no doubt the god-send of any law professor asked to teach Evidence for the first time. It is part of the Wolters Klumer’s Strategies and Techniques for Teaching Series designed for the new law teacher. In this primer for the teaching of Evidence, Ric Simmons draws on over a decade of experience of award-winning teaching and writing about Evidence. This is an amazing how-to book that starts with choosing a book and writing a syllabus and takes the reader all the way through evaluation with a final exam. In between, Simmons summarizes the substantive law of evidence with suggestions on organization of topics and pitfalls to avoid. The book is packed with teaching gems including what to do on the first day, movie clips with evidence themes, incorporating ethics, and the dos and don’ts of PowerPoint, clickers, and role playing. This is the type of work that is only possible from a master-teacher willing to share his secrets with a future cadre of Evidence teachers. Come August, there will be hundreds of new Evidence teachers thanking Professor Simmons for this invaluable resource.


Book Chapters

Amna Akbar

Amna Akbar & Rupal Oza, “Muslim Fundamentalism” and Human Rights in an Age of Terror and Empire, in Gender, National Security and Counter-Terrorism 152-182 (Margaret L. Satterthwaite & Jayne C. Huckerby eds., 2013).

In her first publication after joining Moritz, Amna Akbar (with co-author Rupal Oza—Associate Professor and Director of the Women and Gender Studies program at Hunter College, CUNY) contributes a chapter on the human rights discourses to this new edited volume. In it, Akbar challenges two liberal positions that have emerged and are intertwined: a “good Muslim/bad Muslim” discourse and a “secular feminist” position. In the process, she exposes the one dimensional and marginalizing savages-victims-saviors framework used to justify the War on Terror. This discourse casts Muslim men as savages, Muslim women as helpless victims, and the U.S. as savior. She argues that Guantanamo and drone assassinations strain this metaphor; what is needed is a project committed to the intersectional realities that individuals may be subject to abuses and inequalities while perpetrating their own. Akbar weighs in deep to the various discourses exposing those claiming legitimacy based on being a “good Muslim” and secularism. She draws three compelling observations from this critical analysis. First, secular feminist discourse embraces the “good Muslim/bad Muslim” dichotomy and in the process endorses the us/them view of the War on Terror. Second, secular feminists’ concerns that the Muslim fundamentalist codes sanction violence on women is myopic and ignores the role of Western violence. Third, secularism viewed as a bulwark against Muslim fundamentalism ignores the multiplicity of forces that shape lived reality. Akbar calls for a human rights project that takes into account geography, responsibility, and difference to “account for the full complexity of Muslim realities.”


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Edward B. Foley, Recounts: Elections in Overtime, in Law and Election Politics 149-170 (Matthew J. Streb ed., 2013) (2004).

Now in its second edition, Law and Election Politics, explores the intersection of political behavior and legal rules in the context of the most important political event—elections. Ned Foley contributes a chapter on recounts, where he makes the case that when the political stakes are high, and elections end up with narrow vote margins, candidates turn to the legal apparatus of recounts vote-counting disputes for resolution. The legal apparatus, however, is rusty. The rarity of such contests mixed with the involvement of inexperienced, yet partisan officials creates a “recipe for significant controversy.” For some nineteenth century gubernatorial races, political controversy over ballots turned to bullets. Although the disputed presidential elections of 1876 and 2000 were resolved without violence, both were characterized by strictly partisan behavior, inadequate legal apparatus, and of course, controversy. Foley sees no end in sight because of the preoccupation with pre-voting rules (like campaign financing and voter registration) and lack of attention to post-voting rules. Ironically, it is the lack of partisan preference concerning vote-counting rules that doom them; there is simply no political incentive to focus on them.