Faculty Scholarship Digest

May 2014

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

Erin  Archerd

Erin Archerd, An Idea for Improving English Language Learners’ Access to Education, 41 Fordham Urb. L.J. 351 (2013).

In this article, Erin explores the options available to families with children who are English Language Learners (ELL’s) (about 10% of public school students across the country) and also have a disability. Somewhat ironically, as Erin establishes, such families are generally more likely to see direct and immediate improvements to the child’s education with regard to language support by pursuing remedies under the Individuals with Disabilities Education Act (IDEA) than under the Equal Education Opportunities Act (EEOA) and related statutes and regulations that were actually enacted to help students with language barriers. The key to this advantage of the IDEA “for those ELLs who fall under its protections,” are the alternative dispute resolution mechanisms the IDEA provides for resolving these cases and the greater flexibility it provides schools in structuring their programs.

After surveying the practical shortcomings of the EEOA for students in need (including restricted learning environments, inaccurate assessments, and biased applications), the article turns to the unique advantages of the IDEA, analyzing how its ADR procedures can prove more helpful than lawsuits under traditional statutes. The article looks at specific uses of the IDEA in urban school districts to detail these advantages empirically. Given these advantages, a final section of the article explores how localities can take advantage of the IDEA with sensitivity to local conditions and issues.


Douglas A. Berman

Douglas A. Berman, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4 Wake Forest J.L. & Pol'y 151 (2014).

In this symposium essay, Doug issues a call for a separate doctrine regarding the weight to be given to “finality” in sentencing determinations from the heavy weight finality has in judgments of conviction. Doug introduces his subject with a clear demonstration of its current importance: Congress’ recent reduction of mandatory sentences for crack cocaine and the Supreme Court’s recent bar on mandatory sentences of life without parole for juveniles. These revisions have set off broad debates and litigation in state and federal court regarding the possibility of reconsideration of the prison terms of individuals sentenced before the changes. In these cases and many others, the strict finality doctrine applicable to judgments of conviction would bar reconsideration (and shorter sentences) that a more flexible approach for sentencing might allow. The essay constructs both historical and practical arguments for such an approach.

From a historical perspective, the essay explains that “finality” would have been an alien concept to the Framers because of the very different nature of criminal adjudications. Moreover, prior to the rise of the penitentiary in the latter half of the 19th century, “a defendant’s conviction and sentence were generally one and the same.” At the same time, Doug points to certain provisions of the Constitution (such as the pardon power) and historical practices (such as benefit of clergy) that suggest an openness to reconsideration of punishment in light of offender characteristics. The next great phase---the rehabilitation era which dominated the first three-quarters of the 20th century, Doug argues, de facto prohibited sentence finality by demanding constant reconsideration (through indeterminate sentences and parole) of the appropriate punishment. Doug then turns to the current period of mass incarceration, describing the role of sentence finality in creating the problem and as a justification for treating sentencing finality differently from conviction finality. With this background, Doug argues that core differences between backward-looking, offense-based and binary (guilty or innocent), guilt determinations and (partially) forward-looking, (partially) offender-based, (potentially) flexible sentencing determinations requires a “modern balance” for “the unique interests served (and not served) by sentence finality.” This means at a minimum, decoupling sentencing finality from conviction finality and, beyond that, Doug suggest a presumption of sorts against finality, at least in the case of severe sentences of incarceration.


Martha  Chamallas

Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013).

This article grew from Martha’s address for the Monsanto Lecture in Tort Law, a leading annual lecture in the field. In this article, Martha employs her patented interweaving of doctrine and interdisciplinary theory to document, analyze and address what she calls “sexual exceptionalism:” the strong tendency in U.S. tort law to avoid imposing vicarious liability on employers for sexual abuse by their employees, even in contexts in which vicarious liability typically would be applied for other violent tortious acts by employees and even though legal recognition of sexual injury in other contexts suggest that tort law would be adapting. As Martha notes, lately “trusted institutions --- from the Catholic Church, to the Boy Scouts, to Penn State and BBC --- have become embroiled in scandals involving allegations of widespread sexual abuse.” If victims can establish that such institutions and employers were independently negligent in allowing the abuse to happen, then liability is clear. This is a much more difficult burden for plaintiffs, however, and a smaller class of cases than would come from vicarious liability --- the automatic employer liability for torts committed by their employees in the “course and scope of their employment.”

Martha starts by canvassing the cases and concludes that, although the legal “tests” are the same, courts are distinctly less likely to impose vicarious liability in sex abuse cases than in other cases of violence, for example when “enraged and often drunken male employees engage in acts of violence.” Why? The article next considers the academic justifications---both those grounded in efficiency and those grounded in fairness---for vicarious liability and finds that these justifications support the use of the more expansive of the two sets of tests for vicarious liability (those grounded in “enterprise risk” or in foreseeability). Even when courts follow this path, however, they disproportionately find sexual abuse claims outside of the class, and so Martha next looks beyond tort literature to explain the sexual exceptionalism phenomenon. The article relates scholarship in feminism, cognitive psychology (particularly with regard to the fundamental attribution error) and research on institutional cultures with a common theme. Vicarious liability springs from viewing harms that result from risks created or caused by the employer, and each of these three sources provide means for understanding how professional settings facilitate or inhibit sexual conduct and how employee sexual abuse may arise out of an employment situation in a manner that the law ought---but predictably fails---to recognize. A final section draws on the preceding analysis to examine potential solutions and ultimately advocates a rule-based test: vicarious liability should be employed “if an employer materially increases the risk of tortious action either by conferring power or authority on its employees over vulnerable persons or by regularly placing its employees in situations of intimate or personal contact with clients, customers, or other potential victims.”


Edward B. Foley

Edward B. Foley, Virtue over Party: Samuel Randall’s Electoral Heroism and Its Continuing Importance, 3 UC Irvine L. Rev. 475 (2013).

This essay grew from a keynote address Ned gave at a U.C. Irvine Symposium on election law in 2012. Ned has long been a leading proponent of non-partisan tribunals for resolving electoral disputes and a creative researcher and advocate towards developing such institutions. In this essay, however, Ned notes that even non-partisan institutions will require virtuous (in the sense of respecting law over partisan interests) office holders in order to succeed. Ned acknowledges the difficulty in not being cynical about the possibility of such partisanship, but the essay offers a powerful counter-example in a story that has been shuffled out of the usual narrative about the presidential election in which it played a crucial role: The Hayes-Tilden crisis of 1877. With three days until inauguration day, and a visible path towards an electoral count favoring Republican Hayes and a conflicting House vote denying the electoral count and selecting Democrat Tilden and talk of a military solution, Samuel Randall, highly partisan (and decidedly unheroic as a general matter) Speaker of the House, defied the hardline wing of his party in the face of verbal pandemonium and physical threats, to make a procedural ruling in accordance, in his words, with his “conscience and the law” that essentially cut off the path for Tilden in the House and assured Hayes’ inauguration.

Ned recounts the story in dramatic fashion, with careful attention to potential claims of cynics regarding Randall’s motives and concludes that Randall’s action “was instrumental in thwarting . . . [a] constitutional crisis” and “deserves to be called heroic.” Ned argues that this story should figure prominently in discussions of electoral crises---from high school history texts to speeches by academics speaking to Secretaries of State or the National Conference of State Legislatures. While Ned disclaims naïveté about an automatic transference from talking about electoral virtue to observing it, he argues that teaching such history can lead to emulation through a number of pathways and issues a call for civic virtue as a pedagogic goal for the academy.


Steven F. Huefner

Steven F. Huefner & Edward B. Foley, The Judicialization of Politics: The Challenge of the ALI Principles of Election Law Project, 79 Brook. L. Rev. 551 (2014).

In this Symposium article, Steve and Ned lend their vast collective experience to discussion of the advantages and challenges presented by the American Law Institute’s Principles of Election Law project, launched in 2010, in which the ALI is attempting to “reformulate” (rather than “restate,” which is not possible given the utter lack of consensus among the states) certain ripe areas of the election administration branch of Election Law. The article begins by discussing the special challenges of such a project in Election Law, which Steve and Ned claim is unique as a result of the confluence of two traits: (i) its status as “meta-law”--- the law that determines the selection of who will determine all the other laws; and (ii) its relation to the political question doctrine and the minimal historic role for courts --- both in the framer’s vision and in practice for all of U.S. history up to fifty years ago --- in deciding questions of election administration.

With this background, the article explores the role for the ALI and offers some substantive input regarding two specific areas, the development of neutral principles for resolving election disputes and the development of methods for voting other than at the voting booth on election day. With regard to the former, the article discusses the ALI project’s efforts to develop neutral principles for resolving electoral disputes and the practical political challenges to such efforts, as well as ALI efforts to explore the design of special institutions to resolve electoral disputes and to establish a model calendar that sets mandatory timeframes for resolving such disputes. With regard to “non-precinct voting,” Steve and Ned point to a number of strong advantages (from an electoral administration perspective) for early in-person voting in comparison to expanded absentee/mail-in voting. They note the appeal of the latter approach, however, and describe the ALI projects consequent effort to establish “best practices” for jurisdictions that choose to implement either or both of these approaches.


Ingrid Mattson

Ingrid Mattson & Linda-Jean Schneider, Negotiating and Complying with Electronic Database License Agreements, AALL Spectrum, Feb. 2013, at 10.

This article was chosen as Spectrum “Article of the Year.” Electronic databases compose a very substantial and crucial part of the contemporary law library, and libraries provide access to such databases through license agreements. In this article, Ingrid and her co-author (the Electronic Resource Manager for an AM Law 25 law firm) describe critical points in negotiating such agreements, which go well beyond dollar cost. Their savvy analysis explains the need for matching the terms with your patrons (e.g., will multiple mandatory log in steps leave the resource unused), and the patrons habits with the terms (e.g., will the patrons be allowed to store documents on their own document management system for as long as necessary). Vendors pay attention to compliance and often demand access to information allowing them to assess compliance (another term to be very conscious of in negotiation), so there is a lot to be careful about. The article not only categorizes and highlights the myriad issues, but provides useful “dos and don’ts” for the negotiation.


rub.1

Guy A. Rub, Stronger than Kryptonite?: Inalienable Profit-Sharing Schemes in Copyright Law, 27 Harv. J.L. & Tech. 49 (2013).

In this timely and comprehensive article, Guy provides a thorough analysis from a law and economics perspective of the provision of inalienable rights to the copyright on an artist’s work. In the Copyright Act of 1976, Congress provided authors with an inalienable, non-waivable, right to terminate any sale of the copyright of their work 35 years after the sale. Since the Copyright Act became effective in 1978, the first possible terminations under this “time bomb” provision only became possible in 2013. Under this termination provision, “the author of a song may unilaterally terminate a license allowing a record company to record the song . . . the author of a book may . . . prevent a movie studio from producing a film,” and so forth. This protection for authors was justified on arguments that artists tended to be in much weaker bargaining positions relative to their licensees (i.e., publishers and recording companies) and the uncertainty of the value of the license at the time of the initial creation of the work required this second bite at the apple.

Guy’s analysis begins by reviewing profit-sharing supportive legal alternatives in contract law and property law as alternatives to inalienability. Guy’s analysis concludes that, on balance, the “starving artist” and “value uncertainty” arguments (even if true as a factual matter) do not justify inalienability. Guy’s close examination of the negotiation between the creator and the buyer does show that when competition among buyers of copyrighted works is limited, inalienability can improve the creator’s total compensation (and hence potentially encourage creativity, the goal of copyright law). Unfortunately, by delaying much of the compensation (the 35-year termination right makes the sale less valuable at the start but provides a potential windfall decades down the road), it also shifts compensation from young authors to older ones and shifts risk from risk-neutral buyers to risk-averse sellers. In addition, termination rights create inefficiencies by restricting the buyer’s incentive to promote the work as the termination date approaches and because the termination right as created by Congress wipes out all the agreements with the many intermediaries the buyer has expensively negotiated (think about all the copyright permissions a book publisher must collect if the author quotes and uses other copyrighted material). This leaves the work more vulnerable to the so-called tragedy of the anti-commons which leads to underuse of the work. Guy suggests both judicial and more comprehensive legislative means to address these drawbacks, but ultimately concludes that the rising competition in most industries that use copyrighted works (no longer do a few publishing houses, record companies and television networks control access) probably means that the negatives of the inalienable right outweigh the positive, and the “continuous decrease in barriers to entry into many copyright industries” will make “termination rights even less desirable going forward.”


rub.1

Guy A. Rub, The Unconvincing Case for Resale Royalties, 124 Yale L.J. F. 1 (2014), http://yalelawjournal.org/forum/the-unconvincing-case-for-resale-royalties.

This essay addresses the American Royalties Too Act of 2014 (the ART Act), introduced in Congress in 2014. The ART Act would grant visual artists a right to collect royalties when their artworks are resold. This is the fifth introduction of such legislation, but this time it is armed with the U.S. Copyright Office’s urging of Congress to consider such legislation. Guy’s essay strongly sets out the arguments against enactment. Such resale royalties have traditionally been justified as a protection for artists’ weak bargaining position---the “starving artist.” In addition to questioning this stereotype as a general matter, the essay emphasizes that visual artists operate in a “very competitive” market with low barriers to entry that completely undermine this rationale. In the case of the ART Act, a different rationale now being offered is that copyright law currently “discriminates” against visual artists because it primarily helps non-visual artists (e.g., book authors) who are hurt when copies of their works are cheaply made and sold. So this advantage for visual artists is needed for balance. Yet, Guy notes, “visual artists, like most producers of goods, simply do not suffer from the problem that copyright law mitigates.” Describing current law as discriminating against visual artists, he contends, is like saying the law forcing car manufacturers to provide a method for securing child seats “discriminates” against people without children because they receive no direct benefit. There is nothing discriminatory, the essay contends in limiting a solution to those affected by the problem it addresses.

Finally, the essay notes that the proposed legislation, particularly with its unusual provision that would allow such rights to be waived and transferred would not even achieve its purported objective of protecting visual artists as a class. In some cases, Guy explains, the law would have no impact, and in others it would provide a windfall to well-established artists and their heirs.


tokaji_dan

Daniel P. Tokaji, Responding to Shelby County: A Grand Election Bargain, 8 Harv. L. & Pol'y Rev. 71 (2014).

In the wake of the Shelby County Supreme Court decision invalidating portions of the Voting Rights Act, this article closely examines what the Voting Rights Act was --- and was not --- accomplishing and proposes a “Grand Bargain,” federal legislation that both eases voter registration and includes a photo ID requirement, as a path forward. The article begins with a close examination of the visible impact since the year 2000 of the preclearance provision of the Votings Rights Act that the Supreme Court struck down in Shelby County. This record demonstrates that the overwhelming impact of the Voting Rights Act in recent years regarded “vote dilution” (e.g., redistricting, at-large elections) rather than “vote denial” (barriers to actually casting a vote), which were rarely addressed under the Voting Rights Act. The article then examines current data on voting participation (as Congress did in enacting the Voting Rights Act in 1965). The conclusion is that while blacks vote at much closer to the same rate as whites (even matching them in the previous two presidential elections), “Hispanic and Asian American voters are much less likely to . . . vote . . . [and t]hose with low income and educational attainment levels vote at much lower levels.” At the same time, the next section’s review of the literature demonstrates, easing voter registration (e.g., same-day registration) is the most effective way to increase participation, far more so than “convenience voting” (e..g, early or absentee voting). A final descriptive section looks closely at the impact of voter ID laws on participation—on which the evidence is mixed. While no fan of such laws, Dan concludes that a federal law requiring photo-ID with an affidavit exception for those without such ID (such as the version of the South Carolina law the Justice Department precleared before Shelby County), would likely not have a great net impact on participation, particularly as it would preempt more restrictive state laws, such as that recently enacted in North Carolina.

With all this background, the article proposes its grand bargain: “liberalized voter registration and a uniform ID requirements for federal elections.” The article sets out the substance of the proposed legislation, sets out Congress’ constitutional authority under the Elections Clause, the political plausibility of this quid pro quo (including evidence that in some cases eased registrations has helped Republicans as much or more than Democrats) and explains how Congress could encourage the states to adopt similar legislation.


Books

Cinnamon Carlarne

Oceans and Human Health: Implications for Society and Well-Being (Robert E. Bowen, Michael H. Depledge, Cinnamon P. Carlarne & Lora E. Fleming eds., 2014).

In this elegant, interdisciplinary, international volume, Cinnamon and her co-editors assemble a broad array of scholars to provide a deep examination of the interrelation of the oceans and human health and the consequent impacts of environmental changes (such as climate change) on human health as a result of their impact on the oceans. Each chapter includes its own detailed bibliography and accessible charts and boxes to convey information in a reader-friendly way (the massive scope of the editorial task is immediately apparent). From the choices of recreational fisherman, to sea levels over the past 240,000 years, to observation systems for human exposure to waterborne pathogens (think toxic shellfish), there is extraordinary coverage here. Cinnamon herself is co-author of the final chapter which looks at regulatory responses and the potential for reform.


Edward B. Foley

Edward B. Foley, Michael J. Pitts & Joshua A. Douglas, Election Law and Litigation: The Judicial Regulation of Politics (2014).

This is the first edition of Ned’s casebook in the election law field. It joins Family Law as a subject in which Moritz has multiple authors of casebooks in the field. The book is divided into four parts “designed to reflect what might be considered the natural lifecycle of the process that governs any particular election.” Thus, the book starts with the law of districting, which defines what is at stake in a particular election and includes study of the crucial one-person one-vote concept. The second part, brief in comparison to the others, covers the law of nominating candidates. The third part covers the massive topic of the law of campaign practices, which includes campaign advertising and campaign finance. The final part covers the law of voting, where voter eligibility and registration, early voting and counting disputes are found. Election Law is very much a subject of the past half-century, with both statutory and case law that have developed in the lifetime of those old enough to remember the first lunar landing. The authors pay consistent attention to the overarching issues of the federal/state balance that underlays election law, as well as with the fundamental question: “to what extent, if at all, should the judiciary attempt to resolve election disputes, being as they are often contests between the two major political parties,” given, the authors say, that “it is important that judges be seen as independent of partisan politics.”


Book Chapters

Cinnamon Carlarne

Cinnamon P. Carlarne & John S. Carlarne, Globalization and Human Health: Regulatory Response and the Potential for Reform, in Oceans and Human Health: Implications for Society and Well-Being 231-263 (Robert E. Bowen, Michael H. Depledge, Cinnamon P. Carlarne & Lora E. Fleming eds., 2014).

In this concluding chapter of a new volume Cinnamon co-edited, Cinnamon and her co-author discuss a fundamental problem that has been a core component of Cinnamon’s research: international governance as it relates to climate change and its impacts---here on oceans and human health. In a nutshell, “while international law carves out legal rights and protections for human health and offers a plethora of mechanisms for determining rights and responsibilities with regards to ocean and coastal ecosystems, it fails to provide effective mechanisms for responding to the intimate relationship between the health of our ocean ecosystems and the health and well-being of the humans who rely upon these ecosystems.” The complexity of this challenge is staggering. As background, the chapter surveys not only some of the major pieces of positive law involved but alsothe challenges for governance, such as fragmentation, global social change and institutional capacity. Having documented the inadequacy of existing systems, the authors chart a course forward. The chapter offers a new frame of “vulnerability” to the discussion of transnationalism and provides a discussion of “networks of vulnerability” for framing governance issues. In sum, “there is not just one path forward, but rather multiple routes that must be followed,” most critically (though that phrase itself diminishes the complexity; the point of the chapter and the book is that more than a single “most critical” item must be addressed): “revitalizing efforts to improve systems of international governance, and refining efforts to improve and/or create systems of transnational governance.”


John B. Quigley

John B. 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 November 2012, the United Nations General Assembly voted to approve the application of Palestine for the status of non-member “observer state,” and John’s chapter is part of a book discussing the legal and practical implications of this development and of full membership. With regard to the immediate impact of membership on the status of Jerusalem, John notes the short answer is none: “Whatever Jerusalem’s legal status the day before [Palestine] admission, its status will be the same the day after admission,” as precise definition of a state’s borders is not essential for its admission to the United Nations. The Chapter traces that legal status from World War I to the present and then notes several ways in which admission of Palestine to the United Nations could indirectly impact Jerusalem’s legal status. First, it would strengthen Palestine’s position in negotiating over the city’s status. Second, it would enhance Palestine’s ability to enter treaties relevant to goings on in Jerusalem. Third, John argues, it would assist repatriation arguments for Arabs who fled Jerusalem.