Faculty Scholarship Digest

May 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

Creola Johnson

Creola Johnson, America’s First Consumer Financial Watchdog Is on a Leash: Can the CFPB Use Its Authority to Declare Payday-Loan Practices Unfair, Abusive, and Deceptive?, 61 CATHOLIC UNIV. L. REV. 381 (2012).

This comprehensive article critically examines payday lending and discusses what the new Consumer Financial Protection Board (“CFPB”) can do to address the problem. Non-bank payday lenders “charge fees that equate to triple-digit annual interest rates, issue loans frequently in excess of the borrower’s next paycheck, and require borrowers to repay the loans in a single balloon payment—usually in two weeks.” Payday lenders have been the subject of some state-regulation, including outright bans, but Cre canvasses the many different ways lenders have found to circumvent these regulations. She also discusses the role of mainstream financial institutions in financing a significant portion of the payday lending of the non-bank entities.

The article then turns to how the CFPB might address these issues. Cre describes the basis on which the CFPB can “establish regulations that define payday loans and expand the scope of regulated entities,” while also declaring a variety of payday lending practices (e.g., two-week maturity dates, multiple rollover or refinancing fees) as “unfair, deceptive or abusive” under its statutory authority. Although CFPB lacks enforcement authority over the smallest payday lenders, it can use “its various powers to persuade . . . regulators of smaller financial institutions” to secure compliance with the same regulations. A finally section of the article points to a recent Federal Deposit Insurance Corporation program demonstrating that lenders can issue small loans in compliance with such regulations and sustain long-term profitability, so that the CFPB will, in fact, be addressing a market failure.


Creola Johnson

Creola Johnson, Congress Protected the Troops: Can the New CFPB Protect Civilians from Payday Lending, 69 WASH. & LEE L. REV. 649 (2012).

This article, part of a Regulation in the Fringe Economy Symposium, continues Cre’s research regarding payday lending. In this article, she points to the Military Lending Act (“MLA”) which Congress passed in 2007 that places very significant limits on the practices payday lenders can engage in when lending to active-duty military members and their families. These are many of the same limits she urges the Consumer Financial Protection Board (“CFPB”) should enact and enforce more broadly. The article describes ways in which the civilian population is more vulnerable to ensarement in predatory loans and less protected by a social safety net, so that the need for such protections for the military, as evidenced by the MLA, proves the need for the civilian population.

In addition to explaining these practices, the potential regulations, and the CFPB’s authority to create such a regulatory framework, the article also recognizes that a multi-faceted strategy is needed to address the problem. Using its educational mandate, she suggests ways in which the CFPB can use social media and other techniques to foster expansion of affordable low-cost loans, that would be issued under a CFPB safe harbor provision.


John B. Quigley

John Quigley, Who Admits New Members to the United Nations? (Think Twice Before You Answer), 44 GEO. WASH. INT’L L. REV. 179 (2012).

In the early years of the United Nations, the cold war powers struggled over the rules governing who decided when a new state would be admitted to the United Nations. Eventually, this article describes, “arrangements were made on a political basis” but the legal issue—how should the U.N. Charter best be interpreted on this point—“never received definitive clarification.” The “favored version,” which practice has largely followed, is that an affirmative vote of the Security Council, including the vote of each of the five permanent members, must be secured before the General Assembly can vote on admission, and the votes of Security Council members do not require explanation under the Charter and are not subject to review. Under the “disfavored” understanding of the procedure, “the General Assembly holds a power to admit the applicant state,” notwithstanding what the Security Council does or does not do.

In this article, John builds a careful brief for the “disfavored” position as a fair interpretation of the U.N. Charter that can be reached simply by “read[ing] the text and apply[ing] traditional techniques of treaty construction.” The article uses the text and these traditional interpretive techniques to make three independent arguments for General Assembly power: first, that the General Assembly may disregard the vote of a Security Council member that uses “non-Charter criteria” in voting in the negative; second, that the permanent members do not have a “veto” on admission votes, and third, and most broadly, that the General Assembly may admit on its own.


Peter M. Shane

Peter M. Shane, Cybersecurity Policy as if “Ordinary Citizens” Mattered: The Case for Public Participation in Cyber Policy Making, 8 I/S: J. OF L. & POL. FOR THE INFORMATION SOC. 439 (2012).

This article is the final piece in an issue of the I/S journal devoted to cybersecurity. The article forcefully contends that, contrary to a popular conception that cybersecurity is a matter soley for computer and engineering experts, the general public should have a “meaningful voice in cyber policymaking,” including cybersecurity. To be sure, “cybersecurity involves technical choices requiring specialized competence,” but so do “environmental policy, biomedical research policy, or, for that matter, counterinsurgency strategy in Afghanistan,” all of which, Peter contends, “implicat[e] a series of choices among competing values and priorities that are the ordinary stuff of politics.”

The issues Peter covers are many. To begin with there is the distinction between “cyber attack” (e.g., shutting down a transportation system by disrupting its computers) and “cyber espionage” (e.g., taking information from your hard drive), so the issues involved go far beyond the familiar privacy vs. security trade-off. There are issues of cost, the risks/reward of adopting an offensive cyberattack capability (imagine a question about whether the country should develop a nuclear weapon) and, because so much digital infrastructure is in private hands, questions of public/private boundaries and partnerships. The bulk of the article considers methods of achieving public engagement in this context and the values to be achieved by doing so.


Christopher J. Walker Christopher J. Walker, Avoiding Normative Canons in Review of Administrative Interpretations of Law: A Brand X Doctrine of Constitutional Avoidance, 64 ADMIN. L. REV. 139 (2012).

This article considers the interaction of two important doctrines: the doctrine of constitutional avoidance (a canon of statutory construction that directs courts facing a statute with multiple reasonable interpretations “to avoid an interpretation that raises serious constitutional problems”) and the Chevron doctrine under which a court should defer to an agency’s construction of a statute it administers if the statute is ambiguous or silent and the agency’s reading is a “permissible construction.” These two directives can come into conflict with remarkable frequency. If a court faces a challenge to an administrative regulation that is a permissible construction under an ambiguous statute but that raises a serious constitutional question, what should a court do? Should it strike the regulation (ignoring Chevron deference) in order to avoid the constitutional question? Or should it apply Chevron and actually determine the constitutionality of the regulation (ignoring the constitutional avoidance doctrine)? As the article describes, the predominant answer among courts and academics has been that constitutional avoidance trumps. Chris argues that separation of powers concerns in fact mandate the opposite answer: Chevron should trump and constitutional avoidance should not apply.

The core of the separation-of-powers argument is that “Congress has delegated interpretive authority first and foremost to the agency,” an action, Chris argues, that cannot constitutionally be ignored merely for the prudential doctrine of constitutional avoidance. The article uses the Supreme Court’s 2005 decision in Brand X which bolstered Chevron by declaring a “presumption” that in an ambiguous statute “Congress ‘desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.’” The article carefully canvasses the constitutional arguments, while also suggesting that Chris’ approach gives each entity the task for which it is best suited: “Whereas courts are well equipped to decide whether a construction is actually constitutional, agencies often are in a better position to fill the holes in ambiguous statutes they administer with procedural and substantive safeguards that eliminate constitutional concerns.” A final section of the article surveys the potential real-world impact of Chris’ approach in a number of fields, including environmental protection, labor relations, immigration law, and national security.


Books

Martha  Chamallas

Martha Chamallas, INTRODUCTION TO FEMINIST LEGAL THEORY (Wolters Kluwer 3rd ed. 2012).

The word “introduction” in the title of Martha’s treatise appropriately signals its wonderful accessibility—the volume can be read and understood by a novice to feminism, or even by nonlawyers. But do not let it fool you. The book is a tour de force. It organizes, relates and describes more than 40 years of scholarly and legal developments in a field that grew from new movement to mature yet evolving subject. The book concisely illuminates the central debates of the era and explains the basic concepts and vocabulary of feminism in a legal context. The influence of these ideas has been such that even readers without previous explicit exposure to feminism concepts will likely recognize some of the issues and perspectives. At the same time, with Martha’s outstanding treatment and with the combination of experience and currency she brings, all readers—from novice to expert, from skeptic to true believer—will see the world around them differently after reading this book.

There have been many developments in the decade since Martha’s previous edition, and they are thoroughly integrated into the work. Nonetheless, there are perhaps a couple of signal new achievements to mention. First, in an effort to advance understanding as well as perhaps assist feminism in moving beyond problematic division into “camps,” the book provides an “enemies list” for feminism—six problems on which feminists have focused—that Martha uses to frame subsequent sections of the book. The enemies, in order of appearance: Difference, Subordination, Devaluation, Essentialism, Victimization, and Normalization (if you don’t know what some of these are, don’t worry, just read pp. 28-30). Second, as feminism has developed into a deeper, more complicated and diverse field, the substantial enrichment of legal understanding that results from exposure to feminism (through this book) has grown commensurately.


Daniel C.K. Chow

Dan Chow (w/Thomas J. Schoenbaum), INTERNATIONAL TRADE LAW: PROBLEMS, CASES AND MATERIALS (Wolters Kluwer 2nd ed. 2012).

While traditionally International Trade Law and International Business Transactions were covered in a single law school course, Dan and his co-author consider such an approach confusing and unwise. The former subject “is now primarily a specialized branch of public international law,” while the latter is “largely private law with a smattering of public and private international law,” and both bodies of law have grown to be “enormous.” Accordingly, Dan and his co-author have designed this book and their separate book on International Business Transactions as compact companion volumes.

This second edition, while continuing Dan’s approach of reliance on primary source materials and rich use of problems, has been reorganized around “the most important of the global trade agreements . . . , the General Agreement on Tariffs and Trade (“GATT”).” Each GATT article is covered with specialized World Trade Organization (“WTO”) trade agreements integerated with the GATT article to which they relate. WTO agreements that are more independent of GATT are also treated comprehensively, but after the GATT materials are covered.


dressler.11

Joshua Dressler (w/Stephen P. Garvey), CRIMINAL LAW (West 7th ed. 2012).

For this latest edition of the leading casebook in the field, Joshua has taken on a co-author, Professor Stephen Garvey. Professor Garvey has adopted Joshua’s “wise but grammatically poor adage, if it ain’t (too) broke, don’t fix it (too much),” and there was very little “broke” (even a little bit), so those familiar with Joshua’s casebook (now nearing its twentieth birthday) will not be discomfited by this new edition. Professor Garvey puts it well in his comment to the preface “[Y]ou can well imagine my sense of privilege when asked to help continue [the book’s] tradition. Professor Dressler, the consummate scholar, has been a patient mentor and wonderful friend and colleague over the years, as he has been for and to countless others.”


Katherine Hunt Federle

Katherine Hunt Federle, CHILDREN AND THE LAW, AN INTERDISCIPLINARY APPROACH WITH CASES, MATERIALS, AND COMMENTS (Oxford Univ. Press 2012).

This deeply impressive “coursebook” is structured around several premises. First, that the course in which it will be used, such as Juvenile Law or Children and the Law, will have a practice orientation, to prepare students to be the best of child advocates. Second, that in “the child-law field, a rich understanding of legal theory may be especially critical” because that underlying theory remains so underdeveloped. Third, that in addition to legal knowledge, practice in the field requires “an understanding of child psychology, child development, neuroscience, history, and social work.” In accordance with these ideas, the book is designed to integrate theory and practice with a multi-disciplinary approach, including articles, studies and research from other disciplines in addition to the usual cases and statutes.

The book thus begins by providing an overview of juvenile law from four different perspectives, history, philosophy, international/comparative, and social science. With these tools provided, the book then offers comprehensive coverage of children and crime (which has distinct procedural and dispositional frameworks), children and protection (covering abuse and neglect and foster care), children and restraints on liberty, and, finally, children and decision-making (including First Amendment rights, medical decision-making, and emancipation). As Kate tells students in an opening section, “[t]he law treats children as a distinct and special group, worthy of protection but also warranting constraint and punishment . . . recogniz[ing] the[ir] culpability. . . while simultaneously acknowledging that their incapacities subject them to parental control and custody.”


Book Chapters

Cinnamon Carlarne

Cinnamon Carlarne (w/Josh Eagle), Food Security, Fisheries, and Ecosystems, in Michael B. Gerrard & Katrina Fischer Kuh eds. THE LAW OF ADAPTION TO CLIMATE CHANGE, U.S. AND INT’L ASPECTS (ABA 2012).

In this chapter, Cinnamon and her co-author discusses the challenges for global food security and the added challenge posed by climate change and both the current and needed state of adaptive measure to respond. The second section of the chapter then focuses on a particular source of food—the international fisheries that span the world’s oceans—a food source that is especially vulnerable to climate change impacts. It is not a happy picture, as adaption measures are still in their infancy but “must progress rapidly at both the global and local levels in order to salvage an already vulnerable food system.”

“Food security” constitutes an aggregation of issues: food availability, food accessibility, food utilization, and food system stablity. The chapter examines existing international structures for addressing both traditional and climate-change related threats to food security. While “[i]nternational institutions will continue to define the parameters of the food security debate and to determine the . . . policies that shape the critical drivers of food security . . . , the effects of the . . . crisis will be felt most immediately and dramatically at the local level by the world’s most vulnerable—the poorest of the poor.” So both global and local reform are necessary. The specific example of fisheries holds some greater promise because environmental change has already been a factor, and agreements that would allow for adaptive approaches already exist. Even here, however, “implementation will be difficult due both to continuing scientific uncertainty and to the fact that adapting will likely entail a substantial reallocation of economic benefits.”


Steven M. Davidoff, Takeover Theory and the Law and Economics Movement, in Claire A. Hill & Brett H. McDonnell eds., RESEARCH HANDBOOK ON THE ECONOMICS OF CORPORATE LAW (Edward Elgar 2012).

This remarkable chapter traces the theoretical and doctrinal interplay between the law and economics movement and corporate takeovers, a relationship now approaching its 50th year. The chapter provides an insightful guided tour through this thicket, with careful citation to major viewpoints and developments. Henry Manne is “credited with the first significant application of law and economics scholarship to takeover theory” with his 1965 article that supported a free market for corporate control on an efficiency theory: when a corporation is run inefficiently, its stock price will fall below its potential level, and third parties will come in to takeover the company to bring it to its more efficient value. Moreover, fear of such discipline would make corporate managers run companies more efficiently in the first place. Belief in such a theory would argue for passivity from Boards of Directors in takeover battles and mandating shareholder primacy in takeover decisions.

In the takeover boom of the 1980's, however, the law decidedly developed in a contrary direction. In response to corporate raiders, “poison pill” defenses that allowed companies to fend off takeovers in proxy battles received judicial and legislative approval. Steve traces these battles and their aftermath, as law and economics scholars retrenched, offering “efficient” alternatives to their preferred unregulated market and eventually began engaging in empirical scholarship that sought to “sway takeover doctrine,” by demonstrating the wealth destroying effect of certain anti-takeover devices. Eventually, with the decline of the efficient market hypothesis, “a cornerstone of Manne’s theory,” “the academic theory on the proper scope of takeover regulation was increasingly fractured.” The result is a lessened but still ubiquitous influence of law and economics on takeover scholarship. Beyond that, however, it is a law and economics transformed, far more nuanced and diverse in its approaches than in its early days, while finding a confluence with current doctrinal developments such as the “corporate governance movement and its increasing emphasis on shareholder authority in decision-making.” In a final section, Steven also points to comparative work as fruitful avenue in this area going forward, as there are other countries with substantial experience with legislation that goes much further than U.S. law in restricting takeover defenses.


Ellen E. Deason

Ellen Deason (w/Nuno Delicado et al.), Assessing Negotiation Competitions, in (N. Ebner et al. eds) ASSESSING OUR STUDENTS, ASSESSING OURSELVES: VOLUME 3 IN THE RETHINKING NEGOTIATION SERIES (2012).

This series arose from a 2011 Conference in Beijing on rethinking negotiation teaching. Ellen was an invited participant at the conference that led to international collaboration in considering the subject. This chapter draws on experiences with negotiation competitions in many fields, including law, international relations and business, and on many continents, including Africa, Asia, Europe and North America. Recognizing that negotiation competitions have proven “an excellent tool to engage and motivate students about negotiation,” the chapter suggests standards for evaluating competitions, both to facilitate future competitions and to “contribute to negotiation evaluation in other settings.” Most of the chapter is devoted to “judge assessment” scoring based on a set of criteria, as opposed to “negotiation outcome” scoring. The chapter covers suggested criteria (good outcome, skills demonstrated, ethical standards) in detail, including, of course how to assess them, as well as much of the nitty-gritty of competitions, such as formats, weighting and, from a pedagogic perspective, the crucial debriefing.


Christopher J. Walker

Chris Walker (w/David C. Frederick et al.), The Insider’s Guide to the Supreme Court of the United States, in Dana Livingston & American Bar Assoc. eds., ABA-CAL APPELLATE PRACTICE COMPENDIUM (ABA Publishing 2012).

This is a chapter in an a two-volume pracitioner’s guide to federal appellate practice. There is a chapter providing an “insider’s guide” to appeals in each of the eleven numbered Circuit Courts of Appeal, the D.C. Circuit, and the Federal Circuit. The first chapter, however, which Chris co-authored, provides the “insider’s guide” to the Supreme Court. It provides guidance and “top tips for practioners” from the certiorari stage through the merits, succinctly addressing everything from CVSG’s and GVR’s, to amicus briefs and rules governing the joint appendix, as well as pointing to other online and print resources that can guide new Supreme Court practitioners. Some law school Supreme Court clinics have already begun to incorporate the chapter into their curricula.


Book Review

Douglas J. Whaley

Douglas L. Whaley, Review of James Steven Rogers, THE END OF NEGOTIABLE INSTRUMENTS, 91 TEXAS L. REV. DICTA 7 (2012).

In this lively review, Doug, who has taught Article 3 (Negotiable Instruments) of the U.C.C. for forty years endorses the author’s call “for the startling idea of repealing Article 3 of the U.C.C. and replacing it with nothing at all!” As the review relates, the law of commercial paper, which means checks and promissory notes, is mired in ancient history “that haunts its statutory versions by cluttering them with ancient and irrelevant complexities.” Article 3 “is a historical remnant of the idea that a piece of paper is the embodiment of the legal obligation.” As Doug puts it, if Article 3 were eliminated, “negotiable instruments would die with it, and payment obligations would no longer suffer the bifurcation that causes . . . agony for law students, lawyers and judges, who must struggle with arcane doctrines that serve only a clogging function in the twenty-first century.” And that “clogging function,” as Doug describes it, causes many affirmative harms. In his conclusion, Doug offers his support for an effort to persuade the American Law Institute and the National Conference of Commissioners on Uniform State Laws to begin the actual process of repeal.


Symposia

Steven F. Huefner

Steven F. Huefner, A Champion of State Constitutions, 75 ALBANY L. REV. 1673 (2012).

This article is derived from Steve’s remarks at a Symposium dedicated to Chief Justice Christine Durham of the Utah Supreme Court, for whom Steve clerked two decades ago. Steve’s remarks tell the story encapsulated in his title. Chief Justice Durham has spent her judicial career advocating a robust role for state constitutionalism. Her tenure on the Utah Supreme Court involved first a decision that Utah’s Equal Protection Clause was not controlled by federal jurisprudence, then dissents by Justice Durham arguing for state constitutional distinctions and, finally, watershed majority opinions based on state constitutional differences and others following a “primacy approach,” deciding cases on state constitutional grounds first, even if federal constitutional law would provide the same answer. Through published scholarship and service to many institutions (e.g., the American Law Institute), Justice Durham’s impact on state constitutional law has also spread well-beyond Utah’s borders.