Faculty Scholarship Digest
Deborah Jones Merritt
Deborah Jones Merritt, Pedagogy, Progress and Portfolios, 25 OHIO ST. J. DISP. RESOLUTION 7 (2009).
In this article, part of a Symposium on teaching Alternative Dispute Resoultion in law schools, Debby offers a careful and insightful description of the potential role for student portfolios in law school education and their specific advantages for ADR education, in particular continuing an ADR “tradition” of advancing new pedagogies and leading in practical and experiential training.
Portfolios, long a staple for artists and architects, are expanding their domain as electronic formats increase their flexibility and allow students to “map, document, and display their achievements” in other disciplines, including law. By including educational goals, steps for achievement, and reflections on performance, portfolios can advance legal education, Debby explains, in many ways.
These include enhancing learning by articulating for students the goals of the curriculum and thereby helping students achieve them, integrating extracurricular work into students’ professional development (as, for example, our certificate in dispute resolution already does), documenting professional skills training, whether in the context of a doctrinal class (e.g., a drafting exercise in a Contracts, or Trusts and Estates Class) or a skills class, enhancing employment opportunities by highlighting a student’s competencies (that legal employers themselves are studying more systematically) and providing easy and impressive “one-click” viewing of a student’s multiple accomplishments, and, finally, instilling the habit of lifelong education by teaching the building blocks for self-education, “identifying specific goals and recognizing concrete steps toward achieving those goals.”
Portfolios would provide additional benefits to the ADR curriculum, the article explains, by diminishing the relevance of arguments about ADR’s “exact place in the curriculum” and facilitating its growth by means of facilitating recognition of ADR components in existing courses, as well as by “leveraging the contributions of employers and other practitioners.”
Deborah Jones Merritt (w/Daniel C. Merritt), Responsibility Rights in the Legal Profession, 43 ARIZ. ST. L.J. 1257 (2011).
Professor Jeremy Waldron has developed a concept of “responsibility-rights,” as Debby and her co-author explain, “rights that society grants to facilitate the performance of responsibilities.” The article identifies the right to practice law as such a “responsibility-right:” Lawyers perform an important task not only for their individual clients, but also for society by creating and executing the law itself and defining our constitutional rights. At the same time, society privileges lawyers in doing this important work; lawyers have a particular interest in being the group that carries out these tasks, and lawyer decision-making in conducting this work is protected from outside interference, even from the state.
The article concludes that the rights of lawyers, and the consequent economic and social power lawyers enjoy is therefore dependent, both morally and practically, on the related responsibilities. “Society has only one reason to give lawyers the enormous power they possess: to assure that lawyers accept the equally weighty responsibility of creating a responsive legal system, maintaining that system, and defining basic legal relationships.” The article then turns to where the lawyers have failed in these responsibilities—where the legal system is too expensive or simply inadequate, and suggests ways that lawyers and law schools could address those problems by reducing costs and by changing business models to better serve clients. The article contends that other responsibilities legal actors face, be it maintaining firm revenues or law school rankings, “must take second place to a lawyer’s responsibility-right to maintain the legal system.” If, as history suggests, lawyers are not willing or able to sacrifice to meet this responsibility, the article argues, the best answer is probably competition, “replacing lawyers’ broad responsibility-rights with a nonexclusive right to practice law,” and a final section contemplates such a world.
Deborah Jones Merritt (w/Martin A. Schwartz & William G. Young), Trial Evidence 2011: Advocacy, Analysis, & Illustrations 28 TOURO L. REV. 1 (2012).
This article was drawn from a panel discussion among the authors at a continuing education seminar, covering both fundamental evidence principles and some recent changes to the Federal Rules of Evidence. The authors move smoothly back and forth as they cover such crucial topics as character evidence and hearsay. Debby’s contribution pays particular attention to the state-of-mind and medical-diagnosis exceptions to the rule against hearsay.
Deborah Jones Merritt, Social Media, the Sixth Amendment, and Restyling: Recent Developments in the Federal Law of Evidence, 28 TOURO L. REV. 27 (2012).
In this article, drawn from a continuing education seminar, Debby provides insight on three areas of change in the Federal Rules of Evidence over the previous year. First, on December 1, 2011, a restyled version of the Federal Rules of Evidence took effect. This was the culmination of a five-year effort that sought to make no substantive changes but touched every rule. Debby concludes that the project succeeded in its goal of making the rules more readily comprehensible easier to understand, but notes two places where the goal of no substantive change may not have been met: The exception to the hearsay rule allowing an “Admission by party-opponent” now allows “An opposing party’s statement.” Under the old rule, there was a split in the circuits (apparently not recognized by the revisers) as to whether the rule allowed admission of a statement formally on the same side of the litigation but with an adverse interest (e.g., a co-defendant), and the revision seems to undermine the arguments offered in support of such admissions. A similar issue came with the change to the rule defining when the Federal Rules of Evidence do not apply—the language of the catch-all provision made the list seem exhaustive rather than illustrative, but courts split on which it was (with a majority finding it illustrative), and the new language suggests it is illustrative. Again, this raises the question of substantive change in jurisdictions under the minority approach.
Debby also covers the important 2011 developments in the Court’s new Crawford-based jurisprudence on hearsay, in which its on-going struggle to define the key term “testimonial” remains a gripping saga, full of twists, splits and harsh opinions. A final section examines social media evidence, which has exploded in importance both because of the wealth of social media information and because it is often easily found, indiscrete, compelling and easily admitted into evidence, as a party admission or another hearsay exception. Debby explores some of the ethical questions involved in gathering such evidence (a lawyer cannot lie in making a “friend request” to gather Facebook information, but may she honestly disclose her name and neglect to mention the litigation connection? There is a split of opinion on this point.) and in authenticating social media evidence, which presents some unique challenges absent stipulation.
Deborah Jones Merritt & Ric Simmons, LEARNING EVIDENCE: FROM THE FEDERAL RULES TO THE COURTROOM (West 2009).
This is the brand new Evidence casebook from two of our evidence instructors. Although an important entrant to West’s American Casebook Series, the “casebook” label is a bit of a misnomer, because this is a casebook without cases (and, for that matter without the notes and questions that traditionally follow cases). This book represents a new pedagogic approach to teaching traditional upper-level law classes, and West has expressed interest into creating a series of books based on this innovation. Rather than asking students to extract principles from cases or use them to solve problems, Merritt and Simmons’ text teaches the law of evidence by textual discussion that includes analysis of the relevant rules and concrete examples. As their teaching manual explains, providing these basics in the reading allows class time to be used to “integrate principles, explore advanced problems, discuss policy, offer simulations and probe ethical issues.”
The book is very user-friendly, making ample use of icons, shading and boldface that maintain visual interest and consistently highlight such features as “key concepts,” “quick summary,” “open questions,” and fact-dependent rules. These last two categories are an important part of the book’s innovative emphasis on the law in practice.
For example, with regard to fact-dependent rules, the book highlights the portion of Rule 404(b) that allows prior bad acts to prove identity. That rule is simple enough to understand; the kicker comes in “[d]etermining whether the features of one crime are similar enough to those of another to constitute proof of identity.” Another example is the line between habit evidence (admissible) and propensity evidence (not). Merritt and Simmons invest time underlining these kinds of rules and explaining how they are argued through examples and analysis.
To maximize the value of the book, Merritt and Simmons have also created a 367-page teacher’s manual and a supporting web site that offers a cornucopia of goodies for teachers, from the traditional policy questions and hypotheticals to test understanding to power-point slides, video clips, role-plays, and simulations.
Deborah Jones Merritt & Ric Simmons, Learning Evidence, From The Federal Rules to the Courtroom (2d ed. 2011).
The first edition of this “uncasebook,” published in 2008, took a new approach to learning texts for an upper-level doctrinal law class. The book offers textual explanation of its subject, the rules of evidence, analyzing the rules and offering concrete examples. With the premise that upper-level students have already learned to extract rules from cases and hypotheticals, the book sets up class time for advanced discussion or problems, rather than extraction/explanation of the rules that have been set out in the text. The book is also replete with friendly icons and summaries designed to assist students in assimilating the material and learning where the law is unclear.
The book has been widely adopted, and West has launched a line of texts, the Learning Series, that follows the model of Debby’s and Ric’s book, so that the second edition is now the lead book in its own series. At the same time, the serious aftershocks from the Supreme Court’s earth-shaking (from an Evidence perspective) decision in Crawford v. Washington and other developments mean that this edition contains much new material, as the field has been unusually in flux (for Evidence) in recent years.
Deborah Jones Merritt, Piercing the Brilliant Veil: Two Stories of American Racism, 85 INDIANA L.J. 1255 (2010).
Debby was asked to submit this essay to comment on an empirical study by Professor Deirdre M. Bowen published in the same issue of the Indiana Law Journal. Debby describes Professor Bowen’s study as “demonstrat[ing] that black and Hispanic students experience more self-doubt, stigma, and hostility when attending colleges in states that have banned affirmative action than in states that support those programs.” Debby notes the importance of this finding and its relevance to policy debates, “[w]hatver the mechanism producing this outcome.” Although Professor Bowen theorizes plausibly that the result may be tied to racial isolation of minority students in anti-affirmative action states, Debby finds the complexity of active social systems an important point to recall. Thus, regardless of the cause, “[t]he reactions of real minority students attending real colleges are at least as informative as a priori assumptions about how different policies ‘must’ affect students.” More broadly, Debby notes the relevance of the result to the “two stories of American racism” that she eloquently describes. In the first, we are in a post-racial world of equal opportunity with integrated professions and elite institutions (including the presidency), where racism is widely abhorred and what remains is “isolated, sporadic and anachronistic.” In the second story, poverty, unemployment, and lack of educational opportunity are still the disproportional lot of Blacks and Hispanics because of “structural, systematic . . . white privilege” and persistent racial bias. Debby describes how our choice of story affects both our personal interactions and our social policy and explains how Professor Bowen’s result importantly supports the second story.
Supreme Court Briefs
Deborah Jones Merritt (w/Andrew Lloyd Merritt & Stephen Wolfson), Brief of Court-Appointed Amicus Curiae in Support of the Judgment Below, Reed Elsevier, Inc. v. Irvin Muchnick, No. 08-103 (U.S. Supreme Court 2009).
This case involves a settlement of a class-action copyright suit. The defendants include publishers of electronic databases; the plaintiffs are freelance authors who published articles in periodicals. The periodical publishers sold the contents of the periodicals for republication in electronic databases, and the freelance authors argued that failure to obtain their consent for the republication constituted a copyright violation. Although the original plaintiffs held registered copyrights on their republished works, the plaintiffs defined their class to include all freelance authors who were republished in this way, regardless of whether their copyright was registered. While the suit was pending, the Supreme Court decided New York Times v. Tasini, which confirmed that republication indeed required the freelance writers’ consent. After seven years of mediation, the parties reached a settlement under which claims based on registered works receive substantial payments and claims based on unregistered works receive low payments, and some holders of unregistered copyrights objected. On jurisdictional grounds, the Court of Appeals vacated the District Court’s decision approving the settlement. The plaintiffs and the defendants urged the Supreme Court to reverse that decision and, after the Court agreed to hear the case, it invited Debby to defend the judgment below.
Debby’s brief does so with great vigor. She argues that Section 411(a) limits the subject-matter jurisdiction of federal courts in copyright claims to registered copyrights and that this jurisdictional limit cannot be waived by defendants. After setting out the Court’s test for determining these kinds of jurisdictional claims, Debby demonstrates that the language of the Copyright Act supports her view, that Congress, courts and commentators have long-treated the registration requirement as jurisdictional and unwaivable and contends that this bar is crucial to Congressional goals of furthering free trade in copyrighted works, shielding the federal courts and the right of free expression from frivolous and ill-defined suits, and maintaining the value of the Library of Congress (which depends on the Copyright Office’s practice of forwarding registered materials). In a separate section, Debby executes a deft piece of litigation jujitsu, by arguing that, even were the registration requirement waivable, defendants are barred from doing so in this case because of their own heavy reliance on the jurisdictional bar earlier in the case to support their litigation position. Debby carefully culls the record and the submissions in the lower courts to establish that the parties relied on the jurisdictional limit to justify their settlement below; the limit was the basis for the harsh treatment of the unregistered members of the class both as a matter of their representation and in the compensation schedule. More than having their cake and eating it too, Debby accuses the parties of trying to “re-bake the cake they have already eaten” and explains why they are not permitted to do so.
SymposiasDeborah J. Merritt, Symposium, The Restyled Federal Rules of Evidence, 53 WILLIAM & MARY L. REV. 1435 (2012). This symposium, as its title suggests, discussed the new federal rules of evidence, which have been “restyled” to make them more readable. The purpose of the change was thus stylistic and expressly intended not to make substantive revisions. Debby’s contribution explains that, notwithstanding that general intent, Rule 1101, which governs when the Rules of Evidence do or do not apply (e.g., they do not apply in Grand Jury proceedings) has, in fact, been substantively changed. Debby provides a more detailed analysis of this shift in a Touro Law Review article, but the gist of the change is that the Rule went from giving an essentially exhaustive list of the proceedings at which the Rules do not apply to a merely illustrative list. Debby sets out how the drafters made this switch because they perceived that the existing rule had been interpreted as illustrative, though written as exhaustive, but demonstrates that this prior interpretation was far from uniform.
Deborah Jones Merritt & Ric Simmons, Teacher’s Manual to Learning Evidence, From the Federal Rules to the Courtroom, (2d ed.) (West 2012).
This teacher’s manual for Debby and Ric’s innovative “uncasebook” in Evidence works hand in glove with an associated website that together provide a truly amazing collection of teaching tools. PowerPoint slides, clicker questions, on-line quizzes, and role plays are all available for most sections of the book, in addition to the usual (but still crucial) explanation of the materials in the book and suggested questions and problems. Debby and Ric have each been recognized with awards for their outstanding teaching from both their students and from the University. In this teacher’s manual, they share with others the extraordinary tools they have worked so hard to develop, tools that allow others to build similar success stories.
Deborah Jones Merritt, Tribute to Retired Chief Justice Ruth V. McGregor, 42 ARIZ. ST. L. J. 375 (2010).
In this contribution to a law review issue honoring Arizona Chief Justice Ruth McGregor upon her retirement from the bench, Debby recounts her experience with the future Justice McGregor when they shared the role of first clerks to a female United States Supreme Court Justice. Debby recounts how Justice McGregor (who took the unusual step at that time of leaving a thriving law firm practice to serve as a law clerk) was initially mistaken for Justice O’Connor while walking with her co-clerks around the Court prior to Justice O’Connor’s confirmation, because even in 1981 “[t]here simply were not many other women over thirty wearing suits inside the Court.” The tribute continues with a description of some of future Justice McGregor’s important contributions during her clerkship year.