Faculty Scholarship Digest

April 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.


Articles

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Mary Beth Beazley, Ballot Design as Fail-Safe: An Ounce of Rotation Is Worth a Pound of Litigation, 12 Election L.J. 18 (2013).

In this article, Mary Beth Beazley uses her expertise in effective document design and applies it to the design of ballots and the rotation of candidates’ names. For generations, candidates have argued that the candidate listed first on the ballot gets more votes due to simply being listed first—the primacy effect. The solution has been ballot rotation—rotating the name of the first candidate on different ballots. Recent research shows that the primacy effect may be insignificant, calling into question ballot rotation. Beazley argues that rotation is still appropriate based on minimizing the electoral impact of two other categories of mis-votes. First, rotation mitigates the impact of proximity-mistake votes—where voters mis-vote for a candidate in the proximity to their chosen candidate. Second, rotation mitigates the impact of mis-votes caused by flawed ballot design. Beazley sees ballot rotation as the best way to avoid “electoral meltdown” and costly and ineffective post-election litigation. She calls for the enactment of precinct-level rotation to evenly spread the benefits and burdens of various ballot positions.


Daniel C.K. Chow

Daniel Chow, China’s Coming Trade War with the United States, 81 UMKC L. Rev. 257 (2012).

This article is Dan Chow’s contribution to the University of Missouri-Kansas City Law Review’s symposium, “The Next Four Years: A Cross-Practice Analysis of Legal Issues Relevant to this Presidential Term.” Chow sees the most important international trade issue between the U.S. and China that can arise in next four years as the mushrooming trade deficit. The U.S.-China trade deficit reached to $295 billion in 2011—a level that Chow predicts “could have serious economic, political, and social repercussions for the United States.” Chow discusses the unfair trade practices adopted by China, such as the manipulation of currency, dumping of goods, and use of subsidies. After describing the safeguards permitted by the World Trade Organization (WTO) to slow down the influx of Chinese goods into the United States, Chow focuses on the use of double and triple tariffs which the U.S. can use to stem the flood of Chinese goods. Chow fears the rising tide of hostility toward China’s trade policies could lead to an all-out trade war, especially given rising protectionist attitudes in the United States.


Steven M. Davidoff & Claire A. Hill, Limits of Disclosure, 36 Seattle U. L. Rev. 599 (2013).

Steven Davidoff and his coauthor Claire Hill (Minnesota) challenge the idea that more disclosure is the answer to problems in the securities market and elsewhere. The authors use two main examples to support their thesis on the limits of disclosure: synthetic CDOs with mortgage-backed securities as reference collateral and executive compensation. The CDOs were overwhelmingly private transactions sold to large, sophisticated investors. These transactions and their substantial decline in value played a significant role in the financial crisis of 2008. Davidoff and Hill contend that these sophisticated investors failed to consider the disclosures and transactions that highlighted substantial risks. Instead, the authors describe how these new issuances were quickly bought up without regard to disclosures containing ample red flags and caveats. Executive compensation is another example of where disclosures did not work as expected. Disclosure of executive compensation was designed to empower shareholders to put an end to excessive executive compensation. In spite of extensive disclosure, it turns out that those who care the most are other executives who use them for leverage in negotiations to increase their pay. Despite the ineffectiveness of disclosures in these examples, the authors contend it is the regulators need to do something that is responsive and politically palatable. Davidoff and Hill “encourage wariness at too-ready use of expensive disclosure requirements.”


L. Camille Hébert

L. Camille Hébert, The Supreme Court’s 2011-2012 Labor and Employment Law Decisions: From the Controversial to the Peripheral, 16 Em. Rts. & Emp. Pol'y J. 287 (2012).

In this article, Camille Hébert brings us up to speed on the Supreme Court’s decisions during the 2011-12 term that impact labor and employment law. As the title makes clear, the Court dealt with some major controversies, but most of the docket likely flew under the radar of most generalists. Hébert summaries the two major controversies: the constitutionality of health care reform and the validity of an Arizona statute imposing criminal penalties on aliens for seeking work in that state. These landmarks were the exception, not the rule. After taking the reader through the multiple opinions in National Federation of Independent Business v. Sebelius and Arizona v. United States, Hébert turns to the other cases heard that term on: sovereign immunity under the FMLA, the ministerial exception to the Fair Labor Standards Act, and the First Amendment limitations on the ability of public sector unions to collect dues from non-members to be used for political purposes. Also included are summaries of what she labels “more mundane issues,” such as the definition of “outside salesmen” in the exemption to the Fair Labor Standards Act, the meaning to be given to certain terms in the Longshore and Harbor Worker's Compensation Act, the role of the Merit Systems Protection Board when constitutional challenges to employment decisions are made by federal employees, and whether private attorneys retained by public bodies to conduct investigations are entitled to qualified immunity against violations of employees' constitutional rights. Hébert does justice to even these less-than-landmark decisions.


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Steven F. Huefner, Lessons From Improvements in Military and Overseas Voting, 47 U. Rich. L. Rev. 833 (2013).

Steven Huefner contributes this article as part of the University of Richmond Law Review’s symposium, Election Law: Beyond the Red, Purple, and Blue. Huefner considers recent efforts to improve the voting experience of military and overseas voters, recent controversies, and broader implications of those efforts on various early and absentee voting methods increasingly available to other U.S. voters. Huefner is well equipped to examine these issues having served as the reporter of the Uniform Law Commission’s drafting committee that produced the Uniform Military and Overseas Voters Act (UMOVA) and associate reporter for the American Law Institute’s election law project on post-election dispute resolution and nontraditional voting processes. After sketching the evolution of UOCAVA voting (so named because of a federal law, the Uniformed and Overseas Citizens Absentee Voting Act), Huefner explores three recent controversies illustrating just how important these votes can be: Florida in 2000, where Bush won the state only after the inclusion of late-arriving military ballots, Virginia in 2008, where late-arriving ballots could have impacted the outcome, and Ohio in 2012, where the state was required to provide early voting to military and nonmilitary voters alike (see more on this below). Huefner sees a cross-fertilization between UOCAVA voting and traditional voting. As such, he concludes with some general principles to be considered with all convenience voting, both early in-person voting and no-excuse absentee voting.


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Steven F. Huefner, Why the Ohio Early Voting Case Is Not a Threat to Military Voting Accommodations, 74 Ohio St. L. J. Furthermore 89 (2012), http://moritzlaw.osu.edu/students/groups/oslj/files/2013/04/Furthermore.Hueffner.pdf.

In this article, Steven Huefner provides the rest of the story surrounding the Ohio 2012 election law dispute over early in-person voting (introduced in the previously summarized article). He predicts that the equal protection argument that led to the restoration of early voting in Ohio on the final three days before the presidential election in 2012 will not undermine other military voting accommodations. The case, Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012), revolved around a new Ohio law permitting county boards of elections to offer early in-person voting only to the military voters, but halted voting on the Friday before Election Day for everyone else. Finding this a new burden on the right to vote unjustified by a sufficiently weighty state interest, the district court enjoined Ohio from halting early voting for all but military voters. The Sixth Circuit affirmed. The polls remained open for early voting Saturday, Sunday and Monday before Election Day 2012. The rest is history. Huefner turns to the lasting impact of the case and addresses the arguments made by military organizations that the outcome threatens all assistance to military voters. He concludes it “is a highly unlikely result” and there is “very little reason to worry about the constitutionality of other military voting accommodations.” Consequently, Obama for America provides little precedential value in undoing the significant improvements developed for military and overseas voters.


Kimberly Jordan

Kimberly P. Jordan, Millennial Attorneys and the Technology Shift in Legal Aid Lawyering, 27 Mgmt. Info. Exchange J. 7 (2013).

Kimberly Jordan addresses the generational differences of Millennial lawyers and suggests how managers could leverage their new hires to avoid misunderstandings and maximize productivity. It all starts, according to Jordan, with the appreciation that today’s law graduates differ from the previous Gen-Xer in significant ways. Their curriculum has been different. Millennials have had many more opportunities to take experiential courses and participate in clinics. Millennials expect instant feedback and more guidance at the start of a project. Most significantly, Millennial law graduates have a comfort with technology that their managers lack. They will use their personal cell phone to communicate with clients. They will also text, rather than draft letters. All Millennials have an online presence (Facebook, Myspace, etc.). They will take an iPad to court. Once one is aware of the differences between Millennial lawyers and their predecessors, Jordan contends that managers can provide guidance to ensure client communication is documented properly and leverage Millennial lawyers’ facility with technology to the client’s benefit.


Books

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Joseph B. Stulberg & Lela P. Love, The Middle Voice (2d ed. 2013).

Josh Stulberg and coauthor Lela Love (Cardozo) have accomplished the nearly impossible task of writing a book on mediation which is accessible and valuable to everyone from the most experienced mediator and trainer to the unwitting person who finds themselves thrust into the position of mediator. In this concise guide to mediation success, Stulberg and Love share their secrets and practical wisdom gleaned from two decades of mediating and mediation training. Reading it is like taking the world’s best mediation training course with the luxury of being able to repeat it whenever you need to. As one reviewer put it: “There is simply no one in the conflict resolution field who knows more about the theory and practice of facilitative mediation than the authors of this book. Both are master practitioners, teachers and trainers, whose former students are leaders in the field today.” Stulberg and Love start with the very basic axiom: “The question is not whether we will mediate. The question is: How well will we do it?” The core of the book is an explanation of BADGER—a mnemonic acronym for the components of the mediator’s role. (Begin discussions. Accumulate information. Develop discussion strategy. Generate movement. Elect separate sessions. Reach closure.) While recognizing the complexity of the mediation process, Stulberg and Love reject the notion that it is “an art form in which anything one does is acceptable or for which one must have an inborn talent.” Instead, the authors plainly make their case that there are ways to prepare, options on how to persuade, and procedures for closure. When done successfully, “the joy of mediating is immense.”


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Daniel P. Tokaji, Election Law in a Nutshell (2013).

Twenty years ago, the field of Election Law barely existed. There were a handful of courses that looked at election law issues, known in some quarters as Law of the Political Process or Law of Democracy or Voting Rights. Spurred on by the 2000 presidential election and ensuing controversy, interest in election law has grown exponentially. But if there is one tell-tale sign that a field of law has matured, it is when West publishes a nutshell on it. Well, as Daniel Tokaji puts it, “Election Law has arrived.” Its arrival is courtesy of Tokaji himself who was given the honor of summarizing the law in this field in his new book, Election Law in a Nutshell. The book is designed to be a helpful resource to students, essentially a supplemental text to go along with whichever one of the four, soon to be five, Election Law casebooks they use. But it is more than just a student resource. Well over 300 pages explore everything from the history of voting rights, representation and districting, election administration, direct democracy, political parties, and campaign finance. This book will undoubtedly be of great assistance to practitioners, election officials, candidates, legislators, and I imagine even a few Election Law professors to boot. This audience undoubtedly shares common ground—a passionate belief in democracy, a desire to see it succeed around the world, and fierce disagreement about how it should work. Rather than take a position on these essential debates, Tokaji’s book introduces the issues to the reader and provides a springboard for future research or study.


Book Review

Marc  Spindelman

Marc Spindelman, Tyrone Garner’s Lawrence v. Texas, 111 Mich. L. Rev. 1111 (2013).

In this book review for the Michigan Law Review, Marc Spindelman tackles Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas. The book has consistently received high praise because of the “deeply human-centered approach” the author uses to humanize the people involved in this civil rights victory for gays and lesbians. Spindelman has an alternative perspective. He sees the work not as merely describing a civil rights victory for gays and lesbians, but as story at the intersection of gender, class, and race. Spindelman explores this idea by comparing the lives of the two men at the center of the case, John Lawrence and Tyrone Garner. They were arrested in Lawrence’s Houston apartment and convicted of homosexual sodomy. Lawrence was a white, middle-class, middle-aged, veteran. After the Supreme Court victory, he returns to a life of anonymous normalcy, moving into a house with his partner, Jose Garcia, until Lawrence’s death of a heart ailment at 68. In contrast, Garner dies young and penniless after being sick for months. There was no funeral, no memorial service. They couldn’t even raise money to cremate him. Why these different outcomes? Spindelman suggests that the story of Tyrone Garner cannot be understood as one of just homophobia. Rather, he sees Garner’s treatment as one at the intersection of social issues. Garner was young, black, gay, poor, unemployed, effeminate, intemperate, and uneducated. These characteristics suggest that there was also a racial, gender, and class dimension accompanying homophobia. Spindelman still has high praise for Flagrant Conduct. He wants, however, for the reader to appreciate a bigger, better, more complex, and more accurate picture of the social issues at play.


Teacher's Manuals

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Joshua Dressler & George C. Thomas III, Teacher’s Manual to Criminal Procedure: Principles, Policies and Perspectives (5th ed. 2013).

Joshua Dressler and his coauthor, George Thomas, produce this teacher’s manual to accompany their popular casebook, Criminal Procedure, now in its fifth edition. In the teacher’s manual, the authors present an organizational plan emphasizing linkage between concepts. Dressler and Thomas include specific ways of teaching the material, as well as traps to avoid. Extremely helpful, the authors alert the teacher to significant changes at the start of each chapter with a section on how the chapter differs from the last edition. They even tell the reader what content they should be willing to sacrifice to pare the course down. Throughout the entire teacher’s manual, Dressler and Thomas maintain a good sense of humor where appropriate.