Faculty Scholarship Digest

October 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.


Cinnamon Carlarne

Cinnamon Carlarne (w/ Thijs Etty et al.), Norms, Networks, and Markets: Navigating New Frontiers in Transnational Environmental Law, 2 Transnat’l Envtl. L. 203 (2013).

Professor Cinnamon Carlarne serves on the Editorial Board of the Cambridge peer-reviewed journal, Transnational Environmental Law (TEL). TEL is a new journal designed for the broad, interdisciplinary study of environmental law and governance beyond the state, such as the contribution of non-state actors and multi-level governance. In this editorial, Carlarne and the rest of the Editorial Board reflect on how the articles in this issue serve as a framing mechanism for exploring the ways that “traditional and novel systems for environmental protection emerge, evolve, and intersect.” Part of the issue is composed of three symposium pieces exploring the legal and political questions that arise in the context of ecosystem services, specifically using markets to effectively and ethically protect environmental resources. The editorial continues to describe the remaining articles. These include a thought-provoking critique of the fragmented system of international environmental law which has given rise to the Anthropocene—a new geological era where humans are the primary driver of environmental change. Also summarized is a piece exploring socially responsible investment and the complexities of harnessing market forces to further environmental protection. The editorial rounds out with description of the remaining two articles, one focusing on transnational environmental crime and the lack of adequate tools for preventing it, and the other providing a sobering account of the EU Chemicals Regulation and the new accountability challenges presented for the judiciary. The editorial concludes that environmental lawyers and scholars face emerging challenges at every level and the hope that the issue will encourage critical thought about the systems of transnational environmental law.

Cinnamon Carlarne

Cinnamon P. Carlarne, Rethinking a Failing Framework: Adaptation and Institutional Rebirth for the Global Climate Change Regime, 25 Geo. Int'l Envtl. L. Rev. 1 (2012).

Professor Cinnamon Carlarne cleverly adapts the Kubler-Ross five stages of grief and applies it to the pursuit of a single, consensus-based, comprehensive international climate change treaty. The promise of global climate negotiations illustrated by the United Nations Framework Convention on Climate Change (UNFCCC) adopted twenty years ago leads to the Kyoto Protocol and the first stage of grieving—denial. While the U.S. was the chief architect of the Protocol, we also refused to ratify it and continued as the world’s largest global polluter. Denial turned to anger at the U.S. at the Bali Conference in 2007 for our failure to support the Kyoto Protocol and obstructionist tactics. Anger gives way to bargaining as the world’s chief polluters—U.S., China, India, and Brazil—all signaled a willingness to negotiate at the Copenhagen Conference in 2009. Unfortunately, the presence of the heads of state at the conference created a “snarling, aggravated, chaotic event” that ultimately produced an accord drafted by the heads of state in a private meeting, bypassing the traditional multilateral consensus approach. In the aftermath of Copenhagen, depression settles in over the failure to produce a legally binding agreement on emissions reduction obligations. Finally, we reach acceptance that a comprehensive multilateral agreement is dead with the Cancun Agreements of 2010 and the Durban Platform in 2011 and their steps toward a new decentralized effort to mitigate climate change. This is a masterful narrative of the rise and fall of the quest for “The Treaty.” Carlarne goes on to describe a theoretically rich and practical vision for the future that centers around adaptation and multi-level governance. Adaptation includes all the efforts undertaken at multiple levels of governance to prepare for climate change (both maximizing advantages and minimizing damages from it). Carlarne finds a pluralistic and polycentric approach to climate change governance attractive, while preserving a role for international governmental organizations and even UNFCCC serving as partner or coordinator for otherwise diffuse efforts.

Ruth Colker, Disabled Education, Rethinking Schools, Fall 2013, at 20.

Rethinking Schools is a nonprofit advocacy organization dedicated to improving public education through education activism. It was started in the mid-1980’s by a group of Milwaukee-area teachers who wanted to improve education in their classrooms and schools. Rethinking Schools is now a prominent publisher of educational materials including their magazine which bears the same name. Rethinking Schools emphasizes problems facing urban schools, particularly issues of race. Professor Ruth Colker’s article, Disabled Education, fits perfectly here. Writing for a non-legal audience, Colker presents the message of her new book, also titled Disabled Education, that the special education processes are heavily biased against children whose parents are poor, children of color, and children who are learning the English language. While recognizing the importance of freeing children from the institutionalized treatment of the past, Colker questions the educational inequity that continues to steer the most vulnerable children toward the most stigmatizing and underfunded special education categories. Colker continues to promote a national dialogue on how to improve education for all children, including those with disabilities.

Ruth Colker, Politics Trump Science: The Collision Between No Child Left Behind and the Individuals with Disabilities Education Act, 42 J.L. & Edu. 585 (2013).

In this article, Professor Ruth Colker explains how two statutes, the Individuals with Disabilities Education Act (IDEA) and No Child Left Behind (NCLB), intended to help children with disabilities actually are on a collision course due to a failure to properly consider the state of scientific research on learning disabilities. Research scientists now conclude that it is crucial to have the earliest possible intervention for students with learning disabilities. This is due to the “Matthew Effect” where unremediated learning disabilities grow more profound over time. While the purpose of the IDEA was to ensure students with disabilities receive an appropriate education under an individualized education plan, the NCLB was designed to make school districts accountable for progress toward state assessment standards. In 2004, Congress moved to align these two statutes so that school districts could save money by combining the resources of both statutes to provide students extra assistance. Unfortunately, the approach used to determine which students have disabilities, called Response to Intervention (RTI), classifies students as disabled only after they have participated in an increasingly intense intervention program and still do not make grade level expectations. This approach delays the type of individualized intervention that research shows is essential to avoid the Matthew Effect. Scientific research now discredits the RTI model and supports use of diagnostic instruments before the second grade to identify children before they fall behind in reading. This means IDEA intervention is necessary before a child is found eligible for NCLB intervention because he or she did not attain a proficient score on a state assessment. Colker calls on Congress to decouple the two statutes and adopt a system under the IDEA that channels remediation resources based upon scientific evidence, not politics.

Edward B. Foley, A Big Blue Shift: Measuring an Asymmetrically Increasing Margin of Litigation, 28 J.L. & Pol. 501 (2013).

Professor Ned Foley documents a surprising new trend in presidential elections: during the canvassing process, Democrats are increasing their vote totals and expanding the “margin of litigation” or how close vote totals must be to encourage a vote-counting dispute. Foley first identified this trend in Ohio where Kerry gained 18,000 votes in 2004, Obama gained 50,000 in 2008, and 65,000 in 2012. Foley confirms the same acceleration of vote gains in other key battleground states—Virginia, Colorado, Florida, and Pennsylvania. Foley presents the data for all 50 states since 1960 and discovers that Republicans won the canvassing advantage until 2000. Democrats gain the advantage in 2004. However, Obama’s dramatic gains in 2008 and 2012 represent what Foley calls the “Big Blue Shift.” Foley suggests the cause of this trend may be due to the Help Americans Vote Act of 2002 and increasing use of provisional ballots, but he calls for more sophisticated statistical analysis is this area. In the meantime, the battleground states should prepare for the greater possibility of disputed elections given the expanding margin of litigation.

L. Camille Hébert

L. Camille Hébert (w/ Loïc Lerouge), The Law of Workplace Harassment of the United States, France, and the European Union: Comparative Analysis After the Adoption of France’s New Sexual Harassment Law, 35 Comp. Lab. L. & Pol’y J. 93 (2013).

Professor Camille Hébert and her coauthor Löic Lerouge compare the laws on workplace harassment in the U.S., the E.U., and France. In the U.S., harassment law developed from anti-discrimination laws and conceptually is a form of discrimination. Thus, harassment is illegal only if it is related to a protected characteristic, such as race or sex. European Union law on harassment also considers it to be a form of discrimination. French law, however, developed a different approach distinguishing between sexual and moral harassment. Sexual harassment involves conduct of a sexual nature; moral harassment is broader and applies to inappropriate behaviors affecting healthy psychological relationships at work. Some commentators equate moral harassment with bullying or mobbing. Besides the difference in origins, U.S. and French law also differ in enforcement. Workplace harassment in the U.S. involves a civil suit against the employer, not the harasser. In contrast, in France harassment is part of the Criminal Code and enforced against the harasser as well as part of the Labor Code enforced against the employer. In 2012, France adopted a new sexual harassment law in an attempt to harmonize sexual and moral harassment. The authors, however, still see the underlying conceptual difference on harassment in France as problematic. It remains to be seen if the new French law will be interpreted in a way to harmonize it with E.U. law.

Guy A. Rub, Market Regulation of Contractual Terms: A Skeptical View, 54 Can. Bus. L.J. 258 (2013).

In this essay, Professor Guy Rub explores the use of a bottom-up, private-market based approach to the problems created by boilerplate contract provisions. Rub’s thinking was influenced by Margaret Radin’s book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law—a work he describes as a masterpiece of analysis on boilerplate provisions. For those unfamiliar with Radin’s book, Rub thoughtfully provides a description of the differences between top-down and bottom-up approaches. If auto emissions were the concern, a top-down approach would be the county government refusing to register a vehicle if it failed emission standards. The bottom-up approach would allow the price of gasoline and associated taxes to create a demand for more fuel-efficient vehicles. The same approaches can be seen in consumer contracts. Using a warranty as an example, a top-down approach would involve the government dictating the scope of a warranty. A bottom-up approach would allow buyers to decide the scope based upon how much they were willing to spend for the warranty protection. As Rub points out, in the context of boilerplate provisions, consumers’ failure to read or understand the provisions thwarts efficient use of a bottom-up approach. Rub goes on to explain the difficulty in trying to facilitate a market for contractual terms given this problem of unobserved terms. Despite the general advantages of decentralized decision-making driven by consumer preferences, Rub concludes that in the context of boilerplate contractual terms, some top-down involvement by a central authority is likely necessary.