Faculty Scholarship Digest
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.
Martha Chamallas, Beneath the Surface of Civil Recourse Theory, 88 Ind. L.J. 527 (2013).
At the 2012 AALS Annual Meeting, the Torts & Compensation Section included a panel on civil recourse theory, Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory. Martha Chamallas was on the panel. Her critique of civil recourse theory presented at the conference appears in final form in this article. John Goldberg and Benjamin Zipursky are chiefly credited with developing civil recourse theory. This theory emerged as an attempt to unify tort law around the concept of private wrongs. By arguing that the point of tort law is to empower victims to rectify civil wrongs against them, civil recourse theory offers a means to reduce the plurality of theories that have dominated tort scholarship since the 1970’s. Despite the rhetoric of rights and empowerment, Chamallas believes the failure of civil recourse theory to account for group identity limits its usefulness. She sees civil recourse theory as merely “an updated version of classical legal theory.” Her main concern with civil recourse theory rests on the central image of the empowered tort victim—too rosy an image to capture the real world of injured persons. According to Chamallas, for tort claimants from less privileged groups—particularly women, racial and ethnic minorities, and low-income persons—tort law has not yet delivered on this promise of empowerment. Chamallas contends that civil recourse theory is limited by its failure to consider “tort law’s spotty record in protecting the rights of marginalized groups.”
Edward B. Foley, The Separation of Electoral Powers, 74 Mont. L. Rev. 139 (2013).
Ned Foley takes the cardinal principle of separation of powers and applies it to election law to correct for the problems caused by our entrenched two-party system. When one party captures the legislature, it can manipulate election rules so that the two-party competition is no longer a fair fight. Foley offers gerrymandering, stricter voter ID, and reduced early voting as attempts “to tilt the electoral playing field in their favor.” He sees separation of electoral powers as the solution. This has two dimensions. First, he calls for the separation of the distinct domain of election law into the familiar three divisions: electoral legislative power (the power to enact election laws), electoral executive power (the power to administer election laws), and electoral judicial power (the power to adjudicate electoral disputes). Foley would vest these distinct electoral powers in three different nonpartisan institutions: an Elections Assembly, Elections Director, and Elections Court. The second dimension of separation is the recognition that these three electoral powers are not only separate from one another, but also separate from the three corresponding regular powers. For example, electoral legislative power should be kept separate from general legislative power by being vested in a separate Elections Assembly, rather than in the regular legislature. Foley describes this as vertical and horizontal dimensions—the vertical being the separation of the three electoral powers as a group from the three regular powers and the horizontal being the separation of the three electoral powers from each other. Foley then turns to more detailed description of these three new electoral institutions. The Elections Assembly would be composed of 100 randomly selected citizens, representing a cross-section of the citizenry, whose purpose is to decide what elections laws should be in their state. The Elections Director would be an appointed, nonpartisan expert with the primary role of educating the Elections Assembly with background information and briefing materials. While the Elections Director would be accountable for the day-to-day operation of the electoral process, Foley sees an additional multimember Elections Council as responsible for the administration of the electoral process. To appropriately adjudicate disputes, the Elections Court would be nonpartisan, nominated by a supermajority of the Council from a list of names suggested by the Director, and confirmed by three-fourths of the Assembly. Foley harbors no illusion that this system will be adopted anytime soon. Nonetheless, just as Madison improved upon Montesquieu, Foley seeks to improve upon Madison.
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, 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 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.
John Quigley, A Tragi-Comedy of Errors Erodes Self-Execution of Treaties: Medellín v. Texas and Beyond, 45 Case W. Res. J. Int'l L. 403 (Fall 2012).
In this article, John Quigley explores the law of self-execution of treaties in the aftermath of the Supreme Court’s opinion in Medellín v. Texas. Medellín was a Mexican national convicted of murder in Texas who was not informed of consular access as provided for in the Vienna Convention on Consular Relations. The reason for this procedure is to allow consular officials to provide assistance during pre-trial, trial, and beyond. The International Court of Justice had ruled that individuals who were not informed about consular access were entitled to a remedy by the judicial branch. President George W. Bush issued a memorandum that the United States had an obligation under the U.N. Charter to implement this order, but that the courts of the state where the foreign national was convicted should do it. Medellín then sought habeas relief from his state-court murder conviction in the Texas Court of Criminal Appeals. The Texas court rejected the petition on the grounds that Medellín procedurally defaulted on the issue and that no law outside of Texas could prevail over its procedural law. Medellín then sought review in the Supreme Court where the high court framed the issue as whether U.N. Charter Article 94 was self-executing. Quigley argues that this is where the Court bungles it at every turn. The Court misapplies self-execution doctrine to a case that was about presidential power, not self-execution. Then they hint at a new, stricter self-execution standard. In the process, the Court purports to be following its own precedents, yet is at odds with its own cases when it concludes that Article 94 is not self-executing. Quigley thinks the Court’s Medellín decision could eviscerate the doctrine of self-execution. Luckily, post-Medellín, the lower federal courts have disregarded Medellín (appropriately says Quigley) and continue to apply treaties as required by the Supremacy Clause of the Constitution.
Douglas L. Rogers, After Prometheus, Are Human Genes Patentable Subject Matter?, 11 Duke L. & Tech. Rev. 434 (2013).
The Supreme Court ruled 150 years ago that an inventor who discovers a phenomenon in nature, or figures out a “law of nature,” cannot get a patent from the federal government. The Court revisited this rule in the context of a patent on isolating human genes from the bloodstream in Association for Molecular Pathology v. Myriad Genetics, 133 S. Ct. 2107 (June 13, 2013). In this article published after oral argument in Myriad Genetics, but before the Court ruled, Douglas Rogers argues that human genes are not patentable and that isolating a gene from its surroundings in the human body, or creating synthetically what exists in nature as DNA, does not cause the DNA to become patentable. Well, it turns out that he was half right. In a unanimous opinion, the Court held that isolated DNA was naturally occurring, precluding patent eligibility, but synthetically created DNA (known as complementary DNA or cDNA) was not naturally occurring and was patent eligible. By ignoring Rogers’s advice on the synthetically produced DNA, the Court has introduced uncertainty over the issue of how much modification is enough to justify a patent.
Paul Rose & Christopher J. Walker, Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture, 66 Stan. L. Rev. Online 9 (2013), http://www.stanfordlawreview.org/sites/default/files/online/articles/DoddFrankFinal.pdf.
Building on their U.S. Chamber of Commerce Report, Paul Rose and Christopher Walker present good governance rationales for the use of cost-benefit analysis by financial regulators in this essay. So far, there has been an absence of serious discussion of the importance of cost-benefit analysis in promoting good governance and democratic accountability. The current silence is all the more troubling post-Dodd-Frank, given both the exponential increase in regulations and the regulators’ status as independent agencies, making them less accountable to presidential oversight. Rose and Walker contend that “robust cost-benefit analysis embedded in notice-and-comment rulemaking” is necessary. Without rigorous cost-benefit analysis via notice-and-comment rulemaking, “democratic accountability suffers, and agency capture becomes a greater threat. The authors predict that as the regulators fail to grapple with these accountability issues themselves, Congress, the President, or the courts will likely intervene to require more transparent economic analysis.
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.
Ric Simmons, Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment, 36 Harv. J.L. & Pub. Pol'y 550 (2013).
In this article, Ric Simmons challenges the idea that Fourth Amendment policy is a zero-sum game pitting individual privacy rights against the needs of law enforcement. Rather than being a competition, Simmons views the criminal justice system as an industry. As such, the application of economic principles should be able to increase the efficiency of the system by maximizing output while minimizing costs. Simmons identifies the costs to the system as both the intangible loss of privacy associated with surveillance, as well as the actual monetary cost incurred by law enforcement to undertake the surveillance. The output is crime control (or more specifically, in the Fourth Amendment context, the identification of those who are guilty of a crime and the collection of evidence that can be used against them). Simmons contends that this industry could be a positive-sum game because technological advances in the effectiveness of surveillance improve the ability to catch criminals without reducing privacy rights. Similarly, changing norms and attitudes may decrease the value of certain privacy interests causing the costs of some surveillance to decrease. Of course, this could all operate in the reverse as well with criminals taking advantage of technological change or changing societal norms on privacy. Simmons first starts with a basic formula for analyzing the productivity of surveillance by measuring the cost of inputs and the benefits of outputs. (Yes, there is math.) He then applies his formula to some surveillance methods, such as drug dog sniffs, GPS tracking, and email surveillance, to see which are more productive than others. (Yes, even more math.) Simmons concludes with guidance on how Congress could regulate surveillance to maximize use of the most productive methods.
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.
Christopher J. Walker, How to Win the Deference Lottery, 91 Tex. L. Rev. See Also 73 (2013), http://www.texaslrev.com/wp-content/uploads/Walker.pdf.
In this invited piece, Christopher Walker responds to Jud Mathews, Deference Lottery, 91 Tex. L. Rev. 1349 (2013). Mathews’s idea is that federal administrative agencies face a two-step lottery when advancing an interpretation of a statute because of uncertainty over which judicial review standard (Chevron or Skidmore) the court will apply in reviewing the agency interpretation. In his response, Walker accepts the lottery thesis, but suggests that agencies should think more strategically. He offers a playbook for agencies to win the deference lottery. Central to Walker’s view is that the lottery is not a win-or-go-home contest. Instead, it is a repeated game where courts and agencies engage in a dialogue with many opportunities to play again. Consequently, Walker thinks that tightening or loosening the lottery may not have as strong an effect on agency behavior as Mathews predicts.
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.
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.
Ruth Colker, Disabled Education (2013).
In her latest book, Ruth Colker exposes the flaws of the Individuals with Disabilities Education Act (IDEA) that limit its effectiveness in providing free and appropriate education to all children, especially poor and minority children. Colker draws on her experience—as a mother, an advocate, and as a disability scholar—to demonstrate how the IDEA falls short of providing the free and appropriate education for all children that it promised. She provides a thorough legislative history of the IDEA including the revelation that experts predicted at the time of enactment that the statute would lead to increased stigmatization and segregation. But the real strength of this work comes from the human narrative. Colker’s case studies allow the reader to see the difficulties families have faced in an attempt to obtain an appropriate education for their children. One common theme emerges. We have created a system so cumbersome, bureaucratic, and cold that even the “success” stories are shocking. The road to “free and appropriate education” is littered with impoverished and desperate parents, beleaguered counsel, and innocent children. While Disabled Education certainly exposes the defects in our special education system, it also offers suggestions for improvement. Chief among Colker’s suggestions is for Congress to end the chronic underfunding of special education and make good on its promise to provide at least 40% of the costs of these programs.
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, 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.”
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 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.
Ellen E. Deason, Yael Efron, Ranse Howell, Sandra Kaufman, Joel Lee & Sharon Press, Debriefing the Debrief, in Educating Negotiators for a Connected World 301-332 (Christopher Honeyman et al. eds., 2013).Ellen Deason leads an international cohort of ADR scholars in this discussion of the importance of debriefing negotiation simulations. The authors argue that all too often the good intentions of thorough debriefing degenerates into something disappointing or pointless. Just as this critical portion of negotiation training is so often ignored in practice, negotiation teaching literature similarly ignores the topic. This chapter seeks to fill that void. Deason and her co-authors bring perspectives from Singapore, Israel, London, public policy, and executive training, as well as U.S. law school negotiation classes. The authors take an interdisciplinary approach that incorporates principles from education literature and studies from the nursing field to supplement their own experiences. They first outline a choice of goals; then analyze the characteristics of good debriefing; and then turn to predictable challenges and tactics for handling them. The authors conclude that, given the importance of debriefing to experiential learning, the negotiation field needs more research on what makes the process effective.
Ellen E. Deason, Yael Efron, Ranse Howell, Sandra Kaufman, Joel Lee & Sharon Press, Debriefing Negotiation Adventure Learning, in Educating Negotiators for a Connected World 333-342 (Christopher Honeyman et al. eds., 2013).
In this second chapter on debriefing, Ellen Deason and her coauthors apply their analysis of debriefing to a negotiation technique known as adventure learning. Negotiation adventure learning involves a learning opportunity outside of class that is experiential, authentic, and real. It typically involves sending teams into the community with missions that will stimulate negotiation. For example, Deason describes an adventure learning experience from Istanbul where groups were to go to the Grand Bazaar and negotiate for food for all the conference participants. The authors apply the general debriefing principles developed in the previous chapter. They also point out the special challenges and importance of debriefing in the context of adventure learning.
Bee Chen Goh, Habib Chamoun-Nicolas, Ellen E. Deason, Jay Folberg & Sukhsimranjit Singh, As We See It, in Educating Negotiators for a Connected World 103-124 (Christopher Honeyman et al. eds., 2013).This chapter is another collaborative effort by Ellen Deason and others that explores cross-cultural differences in adventure learning. The authors tried negotiation exercises in the markets of Beijing. Each individually explains their experience as viewed through their own cultural background and perspective (Chinese, Mexican, North American, and Indian). The authors conclude that self-awareness—often taken for granted—must be a central requirement in cross-cultural negotiation training.
Andrea Kupfer Schneider, Ellen E. Deason, Dawn Chen & Zhouxh Xiahong, Ethics in Legal Negotiation: A Cross Cultural Perspective, in Educating Negotiators for a Connected World 247-266 (Christopher Honeyman et al. eds., 2013).
Ellen Deason is part of this collaborative effort by U.S. law professors and their Chinese counterparts exploring negotiation ethics from a cross-cultural perspective. The authors observed a Chinese negotiation class presented with a legal ethical question. The class negotiated a version of the DONS simulation created by Harvard’s Program on Negotiation. It involves negotiating a settlement between a woman and the man she has infected with a deadly disease. The catch is that the man has re-tested and does not have the disease after all. He tells his lawyer not to disclose the information. Similarly, the woman has just inherited a large sum of money and she instructs her lawyer not to disclose this information. The results of the negotiations were universal—no one disclosed this information. These results led the authors to draft this chapter. Following description of the Chinese negotiation exercise, the authors explain the landscape of lawyer ethics in China and legal education. They continue their comparative approach by exploring the challenges of teaching ethics in both Chinese and U.S. law schools.
Joseph B. Stulberg, Janice Kwon & Khory McCormick, How Different Is Different?: Teaching Persons to Negotiate Cross-Culturally, in Educating Negotiators for a Connected World 125-144 (Christopher Honeyman et al. eds., 2013).
Josh Stulberg and his coauthors contribute this chapter on cross-cultural negotiations to this new edited volume, Educating Negotiators for a Connected World. The authors appreciate the first wave of research on cross-cultural negotiations; however, they find its application to teaching and training as arid, simplistic, and unpersuasive. Instead, they argue for a richer and more complex treatment of culture in negotiations. There are two main concerns. First, current research ignores that differences that are identified as significant to cross-cultural negotiations are also significant for “intra-culture” negotiations. Second, research also ignores the degree to which negotiating dimensions and tactics may be similar across cultures. Consequently, the authors contend that the belief that a wholly different approach is required when negotiating with someone from another culture is just as likely to produce error as the belief that you can simply ignore cultural differences altogether. The authors make their point by examining three hypothetical case studies: an international lawyer confronted with civil and common law differences, a CEO negotiating with China, and a college administrator in charge of foreign study programs. The authors conclude with lessons learned and their implication for teaching negotiation.
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.
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.
Paul Rose & Christopher Walker, The Importance of Cost-Benefit Analysis In Financial Regulation (U.S. Chamber of Commerce Report, Mar. 2013).
Paul Rose and Christopher Walker authored this special report for the Chamber of Commerce. Just as the title implies, the report surveys the history, policy, and law surrounding the use of cost-benefit analysis by financial regulators. Rose and Walker argue for even more rigorous economic analysis by financial regulators now that Dodd-Frank has exponentially increased the amount of financial rulemaking. The authors contend that the use of cost-benefit analysis in financial services regulation will allow regulators to determine if their proposals will actually solve the problem they are trying to address. While the SEC has issued a March 2012 guidance memorandum on the use of cost-benefit analysis in its rulemaking, Rose and Walker remain somewhat skeptical and do not “attempt to predict whether the SEC will actually put these words into practice.” Nonetheless, the authors believe that other financial regulators should follow the SEC’s stated intention and ground their rulemaking in “rigorous cost-benefit analysis to arrive at more rational decision-making.”
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.