Faculty Scholarship Digest

June 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

Ellen E. Deason

Ellen E. Deason, Combinations of Mediation and Arbitration with the Same Neutral: A Framework for Judicial Review, 5 Y.B. on Arb. & Mediation 219 (2013).

This article grew out of Ellen Deason’s contribution to the symposium, The Role of the Courts: Judicial Review of Arbitral Awards and Mediated Settlement Agreements, held at Penn State University School of Law in February 2013. In this piece, Deason provides the first comprehensive look at judicial review of agreements that stem from the various hybrid forms of dispute resolution processes, such as med-arb, arb-med, arb-med-arb, and the like. These hybrids all combine in some fashion the use of mediation and arbitration. They have the advantage that parties can control the structure of their dispute resolution process and be certain that the ultimate result will be a binding agreement. The problem is that structure matters in a number of significant ways. Deason first describes all the possible combinations and identifies the issues presented, such as confidentiality and information flows, candor concerns, and impediments from court rules and statutes. Deason then turns to the question overlooked by others: What is a judge to do when called upon to review the fruits of these hybrids? Are they to be treated like a mediated settlement agreement subject to contract principles, or as an arbitral award subject to much more limited review under the Federal Arbitration Act, or as something altogether different? Deason not only provides valuable guidance to courts that will increasingly be faced with these situations, but also incorporates international arbitration principles to inform her analysis.


Creola Johnson

Creola Johnson, Fakers, Breachers, Slackers, and Deceivers: Opportunistic Actors During the Foreclosure Crisis Deserve Criminal Sanctions, 40 Cap. U. L. Rev. 853 (Fall 2014).

In this article, Creola Johnson comes down hard on the opportunistic actors she sees preying upon innocents in the housing market. Johnson identifies four types of such actors. There are true con artists she labels as “Fakers.” There are “Breachers” who entice tenants into paying rent on property subject to foreclosure. There are the true owners who fail to monitor and maintain the property, or “Slackers.” Finally, there are “Deceivers” who take advantage of desperate home owners facing foreclosure. The whole ugly lot of them, Johnson argues, should be subject to criminal prosecution under state law. Johnson calls for expanded criminal liability to cover those opportunistic actors currently subject to only civil fines. Where the law already provides for criminal penalties, more zealous prosecution is needed. Johnson concludes by suggesting various shaming sentences, such as billboards with photos of the bad actors, as an alternative to incarceration to deter future housing-related fraud.


John B. Quigley

John Quigley, The Genocide Convention: Conundrums of Intent and Utility, 15 Global Dialogue (2013), http://www.worlddialogue.org/content.php?id=545.

In this article, John Quigley offers his interpretation of the intent provision of Article II of the Genocide Convention. Under Article II, “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Article II goes on to identify the types of acts (such as killing or causing serious bodily or mental harm to members of the group), but is silent on what constitutes genocidal intent. Quigley explores two unanswered intent questions—anti-group intent and intent to disperse. These are not just theoretical inquiries. Quigley played an active role in shaping the interpretation Article II. Anti-group intent involves the controversial issue of whether the animus against the target group must be by a member of another group. Quigley notes that the Genocide Convention may have been written with this assumption in mind, but the text does not reflect it. In 1979, after the Cambodian government managed to overthrow the Khmer Rouge and Pol Pot, the new government tried Pol Pot in absentia for genocide. The problem was that many of the atrocities were committed against the Khmer citizens, of which the Khmer Rouge were a part. The People’s Revolutionary Tribunal called on Quigley as an expert on genocide. Interpreting the Genocide Convention like any other international instrument, on the basis of its text, taken in the context of the document as a whole, Quigley testified in a public session in Phnom Penh that in his view genocide had been perpetrated: “I find no requirement that the perpetrator differ by ethnicity, religion, or any other factor, from those victimised.” In the 1990s, as Yugoslavia unravelled, Serbs who found themselves in the breakaway state of Bosnia feared becoming a minority in the new state. The Serbian militia, supported by Yugoslavia, began committing genocidal acts—killing and rape—with the intent of frightening Muslims into fleeing so that the eastern sector could be joined to Serbia free of Muslim population. In 1993, Bosnia took its case for violation of the Genocide Convention to the International Court of Justice. The problem for Bosnia was that intent to disperse, or forced removal, was not addressed in the text of Article II. Once again, Quigley was part of the legal team pressing the claims of Bosnian Muslims. How is that for scholarship making a difference in the world?


Marc  Spindelman

Marc Spindelman, Sexuality’s Law, 24 Colum. J. Gender & L. 87 (2013).

Marc Spindelman’s article, Sexuality’s Law, is quite simply the most ambitious, thought-provoking, and impressive piece of legal scholarship I have ever read. More book-length than a typical law review article, Sexuality’s Law is over 160 pages with more than 600 footnotes. Spindelman’s tome tackles the question of why the thousands of gay men infected with HIV have not used the law to seek redress for their injuries against the other gay men who infected them by failing to disclose their status. Even though HIV transmission through gay sex could be intentional, reckless, or negligent conduct, there are virtually no criminal prosecutions for intentional exposure and few civil cases based on recklessness or negligence. Spindelman argues that an ideology of sexual freedom that deems the value of sex in its dark side and places unfettered sex above all else is the explanation. This ideology of sexual freedom entails a right to die for sex and the right to kill in its name. Viewed through this lens, sexual transmission of HIV cannot be seen as harm, but as an expression of pure power. To construct his ideology of sexual freedom, Spindelman uses hundreds of philosophical and legal sources and demonstrates his mental dexterity in blending everyone from Marx to Mapplethorpe, from Foucault to Fiss. After describing the ideology of sexual freedom, Spindelman offers proof through discussion of four fundamental texts written by prominent gay men from the 1980s, the high-water mark of the AIDS epidemic: Douglas Crimp’s How to Have Promiscuity in an Epidemic, David Chambers’s Gay Men, AIDS, and the Code of Condom, Richard Mohr’s Gays/Justice: A Study of Ethics, Society, and Law, and Leo Bersani’s Is the Rectum a Grave?. He uses these sources to construct a cultural legal study described by another reviewer as “deeply intellectual” and “stunning.” In advancing his theory, Spindelman bravely explores the interrelationship between law, culture and sexuality. He does so with prose that is so literary, elegant, and impassioned that it rivals the masterworks quoted in text and footnote. Georgetown’s Robin West sums up the significance of Sexuality’s Law: “This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.”


Books

Larry T. Garvin

E. Allan Farnsworth, Carol Sanger, Neil B. Cohen, Richard R.W. Brooks & Larry T. Garvin, Contracts: Cases and Materials (8th ed. 2013).

Larry Garvin contributes to the latest edition of this classic casebook that traces the development of contract law in the English and American common law traditions. The 8th edition features authoritative introductions to major topics, carefully selected cases, and well-tailored notes and problems. Weighing in at over 1,000 pages, the casebook continues its “ecumenical” approach. Cases are situated within a variety of disciplines—history, economics, philosophy, and ethics—and present the law in a variety of settings—commercial, familial, employment, and sports and entertainment. Garvin leaves his mark on the 8th edition in a number of significant ways. He rewrites the pivotal chapter covering the Statute of Frauds (Chapter 3) and substantially revises the meaty chapters on performance and breach (Chapter 8) and third party rights and responsibilities (Chapter 10). His contribution to the 8th edition can also be seen in pearls of wisdom scattered throughout the casebook. One in particular touched the proceduralist in me. In Chapter 6 on the limits of bargain and performance, Garvin drafts a new note on the Supreme Court’s opinion in AT&T v. Concepcion and its impact on class action arbitration clauses. After describing various reads on Concepcion, Garvin summarizes the state of the law quite accurately: “Beyond general agreement that Concepcion is an important case . . . it is hard to find any areas of agreement in this welter of case law.” He then proceeds to find the common ground that has eluded other observers.


Nancy Hardin Rogers

Nancy H. Rogers, Robert C. Bordone, Frank E.A. Sander & Craig A. McEwen, Designing Systems and Processes for Managing Disputes (2013).

Nancy Rogers and her coauthors have created the first textbook for the field of dispute systems design (DSD). Designing Systems explicitly identifies its target audience: “You are the primary target for this book if you are a student with a background in dispute resolution and interested in making design a part of your future work and community involvement.” What sets it aside from a typical law school text is its focus on the process of DSD. It is not just another ADR text. In fact, there is no discussion of the various ADR techniques anywhere in the book. Instead, the authors explore the how and why of dispute systems design. This includes such difficult questions as whether a designer would add value, how to handle designer dilemmas around competing stakeholder interests, how to be selected and accepted as a designer, and what it takes to be an effective intervenor. The emphasis, however, is not on the theoretical, but the practical. Six real world examples of systems-design are used throughout the text to illustrate the process issues. These practical examples themselves reflect the diversity of the field. They explore private, commercial systems with eBay's online dispute resolution process. They highlight the national and international scope of DSD by examining the process by which the South African government and insurgents created a peaceful transition to majority rule. They illustrate domestic, local DSD with Cure Violence’s work with at-risk youth in Chicago to diminish violence. Designing Systems, however, is much more than a just a textbook. It is also the first compilation of DSD resources, as well as the first comprehensive look at the challenges facing the field. As another reviewer put it: “As textbook, bibliography, and road map, Designing Systems hits the trifecta. Whether the reader is a professor or a student, a researcher or a practitioner, Designing Systems has earned its place in the winners’ circle and will be an invaluable resource.” This book warrants these accolades.


Book Chapter

John B. Quigley

John Quigley, The Status of Jerusalem After the Admission of Palestine to the United Nations, in Palestine Membership in the United Nations 290-307 (Mutaz Qafisheh ed., 2013).

In this book chapter, John Quigley explores the ramifications for Jerusalem if Palestine is admitted as a member of the United Nations. (Palestine is currently recognized as a non-member observer state.) Admitting that it is difficult to predict how the international community would react, Quigley contends that Palestine would be able to more effectively assert its positions on major issues including the status of Jerusalem. However, as a technical matter, admission of Palestine has no effect on the legal status of Jerusalem because UN admission is handled without regard to the boundaries of the applicant state. Quigley points to the admission of Israel in 1949 as proof. Member states were uncertain whether Israel was making a claim to Jerusalem, and the Security Council made no finding as to the extent of Israel’s territory. Nonetheless, the UN admitted Israel. Any change to Jerusalem’s legal status must come from either negotiations or acknowledgment of the international community. What then is the legal status of Jerusalem? Quigley traces the legal status from the mandate period after WWI to the present. In order to understand the status of Jerusalem, Quigley also explores the status of both Israel and Palestine and the role the international community plays in recognition.


Teacher's Manuals

Nancy Hardin Rogers

Nancy H. Rogers, Robert C. Bordone, Frank E.A. Sander & Craig A. McEwen, Teacher’s Manual: Designing Systems and Processes for Managing Disputes (2013)

A textbook is often only as useful as its teacher’s manual. On this score, Nancy Rogers and her coauthors create an admirable companion for Designing Systems with this Teacher’s Manual. After a preliminary discussion on overall course design and sample syllabi, the Teacher’s Manual systematically identifies for each chapter the relevant learning goals, teaching ideas, AV resources, question-by-question discussion, and exercise discussion. The Teacher’s Manual is liberally sprinkled with URL links to online resources and examples. There are also helpful reminders (“In case you might be over forty, we remind that, for most students, the types of technology discussed in this chapter are not new.”). Also present are many examples provided by Rogers of how the concepts from Designing Systems played out here at Moritz in her DSD classes, such as the development of the student-run organization, SPEAK. Seeing these references, one is left with a sense of pride that our students have not only benefited from masterful instruction, but their experiences have a life of their own in the instruction of others.