Faculty Scholarship Digest

November 2015

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

Edward B. Foley, Voters as Fiduciaries, 2015 U. Chi. Legal F. 153 (2015).

In Evanwel v. Abbot, the Supreme Court will decide issues regarding the population to be used in determining the “one person-one vote” principle. In each district, should or must the number of residents be equalized or the number of eligible voters? In this essay, Ned uses an ambitious normative argument grounded in political philosophy to contend that the role of voters in a representative democracy is such that the number of residents should be the measure. The essay sets out two visions of democracy. In the currently “dominant” vision, the right to vote is a “personal right,” where each voter advances her own self-interest, and electoral democracy is “the arithmetical aggregation of all these assertions of self-expression in the ballot box.” In the second, alternative view, voters are “equally participating in the opportunity to determine what is best for society as a whole”—voters are “fiduciaries” in the sense that voting rights “are not for the equal right to pursue self-interest, but rather for the equal right to serve the public interest.”

The bulk of the essay argues for the “fiduciary” view by using a version of John Rawls’ “original position.” The essay considers in careful detail the political system that would be adopted from this starting point and concludes that it would be a democracy in which voters would be provided equal opportunity “to perform [the] important public service” of voting in support of “the public interest,” not of their self-interest. Considering the implications of this approach, the essay notes that the fiduciary conception of voting argues for equalizing the population of each district, whereas the dominant “self-interested voter-consumer” model might require equalizing the number of voters. While in this essay Ned takes no position on whether the Supreme Court should hold that the Constitution mandates this approach, he believes that, at a minimum, the Constitution permits it, so that the population-based districting at issue in Evanwel must be approved.


Stephanie Hoffer & Christopher J. Walker, Is the Chief Justice a Tax Lawyer?, 2015 Pepp. L. Rev. 33 (2015).

In this contribution to a tax-tinged symposium on King v. Burwell, the second Obama administration apparent Supreme Court victory regarding the Affordable Care Act, Stephanie and Chris combine their expertise to note two particularly salient features of Chief Justice Roberts’ opinion and, by considering them from a tax perspective, develop insights about the potential meaning of the decision going forward.

First, Stephanie and Chris note that Chief Justice Roberts’ “move in King v. Burwell from text or formality to context or substance” tracks an “ever-present feature of tax law”: the difference between written words and the reality of life that drives tax law’s “substance-over-form” doctrine. Under this doctrine, it is not the taxpayer’s characterization of a transaction that matters, but rather the transaction’s economic effect. Suggesting that “the Chief’s spirit animal is, indeed, a tax lawyer,” the authors note other interpretive approaches from tax law in the opinion and suggest the Chief and other jurists “interested in replacing textualism with contextualism” ought to continue to look to tax law, which has long experience in such interpretations.

Second, in King, Chief Justice Roberts remarkably did not follow the obvious path to finding for the government, which would have been deferring to the agency’s interpretation of the statute under Chevron. Instead, the Court ruled that Chevron deference does not apply to “questions . . . of ‘deep economic and political significance’” and interpreted the statute de novo. This approach could signal a deep and enduring shift in power from the executive to the judicial branch—as many commentators have praised or condemned. But Stephanie and Chris are not so sure. They suggest that this aspect of the opinion may “be good only for tax” and that “tax exceptionalism”—“the perception that tax is so different from the rest of the regulatory state that general administrative law does not apply” (a phenomenon the authors have elsewhere approvingly detailed as a dying one)—may still be operating here, citing in particular Chief Justice Roberts’ emphasis on the lack of IRS expertise in health insurance policy and his “repeated use of the term ‘IRS Rule’ to describe the agency regulation under review.”


Sara Sampson (w/ Catherine A. Lemmer), Library Finances 101: Developing Workplace Financial Literacy in Your Staff and Institution, 22 Coll. & Undergraduate Libraries 325 (2015).

In this article, Sara and her co-author make the case for promoting understanding of library finances within library staff and provide a detailed roadmap for doing so. They contend that the concept is especially valuable in the current environment in which libraries are coping with continuous budget cuts and the need to show return on investment to compete successfully for funding. The article draws extensively from management literature in arguing that “[w]orkplace financial literacy is a tool that libraries can use to inform and educate the entire library staff on the financial and business aspects of the library.” Coupled with an open management philosophy, the authors argue that this approach will lead to staff feeling “trusted, valued, and more involved, leading to better performance, more ideas, and a higher level of commitment.”

The first step, the author’s stress, is a commitment “to functioning openly and transparently.” This means not only to share information, but “to take the time to genuinely answer the questions generated from the sharing of information.” With this commitment, library leaders can get started right away. The article’s suggested “workplace financial literacy curriculum” starts with the budget—a concept most are already somewhat familiar with—and then turn to financial statements such as the balance sheet, income statement and cash flows.


Christopher J. Walker

Christopher J. Walker, Inside Regulatory Interpretation: A Research Note, 114 Mich. L. Rev. First Impressions 61 (2015), http://michiganlawreview.org/inside-regulatory-interpretation/.

In May, the Stanford Law Review published Chris’s landmark study of federal agency rule drafting: Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan. L. Rev. 999 (2015). In this piece, Chris draws upon those empirical results to evaluate Professor Kevin Stack’s “seminal” article on the theory of regulatory interpretation. As part of that theory, Stack urged courts to pay special attention to the mandatory “statement of basis and purpose” that accompanies every agency rule. Chris’s survey, in turn, asked rule drafters how they actually approach creation of these statements—and how they believe that courts treat their efforts. After examining responses, Chris concludes that the drafters’ views “provide compelling support for [Stack’s] approach to regulatory interpretation and should further encourage courts to move in that direction.” He also explains that Stack’s interpretive theory can accommodate both purposivists and textualists; a regulation’s statement of basis and purpose constitute part of the regulation’s “text.”

Chris’s research note, published in the Michigan Law Review’s online forum, solidifies his place at the forefront of scholarly attempts to understand regulatory interpretation. By ably combining empirical and theoretical perspectives, he informs the work of both scholars and practitioners in this field.


Report

Christopher J. Walker

CHRISTOPHER J. WALKER, ADMIN. CONF. OF THE U.S., FEDERAL AGENCIES IN THE LEGISLATIVE PROCESS: TECHNICAL ASSISTANCE IN STATUTORY DRAFTING (2015), https://www.acus.gov/sites/default/files/documents/technical-assistance-final-report.pdf.

The Administrative Conference of the United States commissioned this report, which focuses on the role of federal agencies in providing technical assistance to Congress on legislative drafting. Chris’s final report offers a wealth of empirical detail drawn from in-person interviews with agency officials and anonymous responses to an online survey. In addition to summarizing these findings, Chris identifies the major challenges faced by the agencies and formulates a set of nine best practices for agencies to follow. Chris concludes by calling for “further empirical study and theoretical development about the role of federal agencies in the legislative process,” but his own report has already answered a significant part of that call. This scholarly, articulate report will inform agency officials, legislators, policy makers, lobbyists, and ordinary voters. All of us need a greater understanding of the role that administrative agencies play in drafting congressional statutes.


Supreme Court Brief

Sharon L. Davies

Sharon L. Davies (w/ Larry H. James & Christina L. Corl), Brief of Amici Curiae Nationwide Coalition of Educators and Centers Working to Expand Educational Opportunity for African American Males in Support of Respondents, Fisher v. University of Texas, (No. 14-981), (U.S. filed 2015).

The Supreme Court will once again examine the constitutionality of race-conscious university admissions in this Term’s reprise of Fisher v. University of Texas. Sharon has coauthored a compelling amicus brief for the Court’s consideration, submitted on behalf of a “nationwide coalition of educators and centers working to expand educational opportunities for African American males.” As the coalition’s description suggests, the brief focuses on the particular plight of African American males in our society—along with their strikingly low representation on campuses. Given the “seemingly endless string of killings of unarmed black males” in recent years, the brief offers a powerful broader perspective on the issues in Fisher.

Sharon and her coauthors draw broadly on social science studies to make their case, including work from Ohio State’s own Kirwan Institute. As the brief explains, unconscious biases deeply affect race relations in the United States; for black men, these biases often provoke unwarranted fear and retaliatory actions. Racially segregated neighborhoods and poverty, meanwhile, “harm cognitive development and depress primary and secondary educational outcomes.” To compensate for and overcome these barriers, the University of Texas uses race as one factor in its full-file review of applicants. On behalf of more than five dozen individual and institutional signatories on her brief, Sharon eloquently urges the Court to affirm the lower court’s finding that this approach satisfies the Constitution’s strict scrutiny test.