Faculty Scholarship Digest
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. (See Archives)
April, 2012 Report
Steven M. Davidoff (w/Matthew D. Cain), Delaware’s Competitive Reach¸ 9 J. Empirical L. Studies 92 (2012).
Delaware dominates all states in the competition for chartering public companies, something like three-quarters of U.S. companies that go public incorporate in Delaware, and more than sixty percent of Fortune 500 companies are Delaware companies. Yet some have found threats to Delaware’s dominance in a pattern of both merger litigation and merger agreements moving to other jurisdictions. In this important contribution to that debate, Steven and his coauthor analyze over 1,000 merger agreements between public companies over a five-year period, focusing on their choice of law and choice of forum provisions and the variables that drive them. The article concludes that Delaware is actually growing in attractiveness to corporate actors in this particular context.
The article finds that Delaware is popular among merging companies both for the quality of its law and the quality of its judiciary. Predictability and timeliness of anticipated adjudicatory outcomes seem to drive these choices in merger agreements, to Delaware’s advantage, and Delaware law became more attractive over the period studied, in part in response to a second circuit decision that made New York less attractive, and more substantially in response to the 2008 financial crisis. The authors also identify the factors most likely to lead to Delaware as the forum of choice (and tease out the relationship between law and forum). Also important is the state of incorporation of the target company, and, since that is more likely to be Delaware than anywhere else, “Delaware benefits from offering complimentary product to its public chartering services.”
Stephanie R. Hoffer, Redirecting Direct Democracy: Non-Essential Spending as Political Speech, 95 MARQ. L. REV. 563 (2012).
Finding the optimal level of local taxation to provide nonessential but valued local services can be a challenge for representative democracy for a number of reasons including imperfect information and agency problems between representatives and voters. One response, direct democracy, which allows voters to limit such spending, either by refusing to support levies or through ballot initiatives that place permanent limits on such taxes or spending. The democratic input of direct democracy is important, but its usual tools are so crude that direct democracy is also likely to leave the level of taxing and spending too high or, more likely, too low. After reviewing the literature on this dilemma, Stephanie offers a highly original proposal to address the problem, drawn from her earlier research on the German church tax: individuals would be able to “opt out” of paying taxes for non-essential local services. This method, she argues, would allow the continued conversation between voters and their representatives about appropriate spending levels on nonessential services (the benefit of direct democracy) and come closer to setting optimal levels of such spending than the all-or-nothing approach of levies and ballot initiatives.
The article draws out the proposal in significant detail and directly confronts the objections to such a novel approach. Perhaps the most obvious objection is the free-rider problem: who would choose to pay a tax when one could “opt out” and have others pay for you? In the German experience, however, two-thirds do not opt out, and Stephanie explores the reasons why and whether those reasons would likely translate to a secular, local context in the United States. In addition, the article explores in detail some of the administrative challenges of the proposal (for example, what counts as “non-essential” spending and who decides). Ultimately, Stephanie argues, the proposal will have the advantage of creating a dialogue between voters and representatives, confer legitimacy on resulting spending, and produce closer-to-optimal spending levels in a manner better in each sense than the existing problematic poles of abolishing direct democracy or relying on its current forms.
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.
Peter M. Shane, Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis, 12 Journal of Nat’l Sec. L. 507 (2012).
In this invited contribution, Peter examines the repeated inability of the executive branch “to provide reliable legal and constitutional analysis in times of emergency, including covert military operations.” Drawing on his work in MADISON’S NIGHTMARE, Peter argues that an increasing “willingness to abandon the system of checks and balances to facilitate prompt action” by the executive branch (which he calls “presidentialism” in contrast to “pluralism”) is a dangerous and destructive tendency, that presents special risks in the context of military and foreign affairs. This article looks at the role of government lawyers in recent episodes of presidentialism, and argues that the breakdown of government lawyering has left executive branch attorneys as handmaidens to constitutional and policy disasters.
The article describes numerous examples of executive branch lawyers, often operating in a bubble of secrecy based on national security, reaching poor legal judgments under political and professional pressure in a powerfully ideological environment. Peter, who spent several years early in his career in the Office of Legal Counsel, argues (as he sets out in much greater detail in his book) that the checks and balances critical to pluralism depend on more than the legal rules, they also require “an assemblage of norms, cooperative agreements, and informal coordination activities, both within and between the branches.” The article seeks to inspire a return to that culture by vivid description—from Vietnam to the torture memo––of “how the presidentialists’ attitude plays out in practice.”
Marc Spindelman, Gay Men and Sex Equality, 46 TULSA L. REV. 123 (2010).
Sex equality theory views gender, which pervasively organizes society and all our relations, as a social process and gender itself a product of social construction, so that “hierarchical sexuality . . . is to gender in a system of sex inequality as lynching is to race in a system of racial oppression: it . . . furthers social hierarchy in interpersonal and structural terms.” So sex equality theory sees even consensual and wanted sex as problematic when it is tied up with male supremacy. The article next describes multiple ways in which sex inequality is harmful to gay men and how sex equality rules are a significant part of the “legal protections gay men currently enjoy.” Yet, despite these advantages, “gay men themselves have been much, much less willing” to embrace sexual equality concepts. The article theorizes about why that might be so.
Marc identifies a number of possible reasons: gay men are still men and hence benefit from some of the consequent social rewards that flow to men from sexual inequality; gay men have tried to eliminate the hierarchical disadvantage of their sexual orientation “to gain the full set of privileges . . . that heterosexual men” enjoy, including those that sexual equality theory fights against; and a “learned disdain for women,” that comes with being a man “in a sex-unequal regime” that is not lessened by societal views associating homosexuality with femininity. In summary, Marc writes, for some gay men, benefitting by sex equality arguments somehow reinforces “male supremacy’s homophobic slurs about gay men’s ‘womanhood.’” The article suggests that underlying these grounds for gay male resistance to sex equality theory, however, is an ideology of sexual freedom, which “imagines that it is in and through sexual relations that identity and social status, and a resulting social hierarchy, can be achieved.” Sex equality principles, which seeks to tame sex and remove sex-based subordination, is antithetical to sexual freedom’s ideology of worshiped empowerment through sex.
John Quigley, Consular Relations (Oxford 2012).
Oxford University Press has an electronic series of bibliographies, designed to give some basic sources to a reader not well-versed in a particular area. One of their bibliographies is “International Law,” and John, co-author of the Oxford treatise “Consular Law and Practice” was asked to write this entry for consular relations. The elegant entry is usefully broken up into very small sections (e.g., treatises, Vienna Convention, judicial remedies for violations) covering about sixteen different topics, each with its own one paragraph introduction explaining the topic followed by a list of leading sources. The result is a thirty-four page document that is not only an excellent bibliography, but a mini-treatise in its own right.
Dan Chow (w/Anna M. Han) Doing Business in China, Problems, Cases and Materials (West 2012).
This first of its kind casebook provides material for teaching a course on doing business in China appropriate for both law and business students. Suitable for students without specialized knowledge of China, the book provides extensive explanatory text to provide context and background for its primary materials: statutes, cases, and contracts and agreements drawn from multinational companies doing business in China. The book also presents problems that such companies deal with in the special environment that comes from China’s unique historical and cultural traditions.
Not surprisingly, a broad array of business topics are covered, including the general business environment (which looks at trade issues, the political system, human rights issues and more), foreign investment enterprises (a critical, and unique, part of doing business in China), intellectual property, real estate, labor and employment, tax, dispute resolution, and corporate regulation issues such as mergers and antitrust. A remarkable compendium of information in an elegant and concise volume, replete with short problems and other teaching tools, the book is worthy of its place as first into this emerging field.
Marc Spindelman (w/Judith Areen & Philomila Tsoukala), FAMILY LAW (6TH ED.) (Foundation 2012).
Marc (and Professor Tsoukala, Georgetown) join this leading casebook in this new edition. The book is interdisciplinary in its consideration of family law issues, sources of law apart from appellate opinions, and, in many instances, provides information about what happened after the court decision “to illustrate the strength and weaknesses of judicial intervention in family law.” In addition, to state the obvious, this is a field that has undergone rapid change and continues to do so; so there is much that is new in this new edition.
The introductory chapter brings many of these features vividly to life; one cannot easily imagine another casebook that engages even a casual reader so deeply, as everyone has been and usually is a part of a family. Marc and his co-authors highlight so many features: marriage as a formal matter is simultaneously becoming both more and less important; private ordering of intimate relations is growing at the same time as the federal government is expanding its constitutional role in family law; procedural innovation and international law issues—important trends in the law generally—are very present in the field. This latest edition keeps current with all this and much more.
Ellen E. Deason, Alternative Dispute Resolution in the United States, in Bin Liang & Hong Lu eds., JURISPRUDENCE, translated into Chinese by Xiaoyi “Amy” Sun (Renmin Univ. of China Press 2011).
This chapter is part of a book intended for advanced social science students in China seeking an introduction to jurisprudence, with chapters by leading scholars in a variety of fields. Ellenís chapter covers alternative dispute resolution. In addition to explaining the basics of negotiation, mediation, arbitration and court-sponsored settlement procedures, Ellen describes both the intellectual and historical development of alternative dispute resolution and its deep impact on the practice of law. She also covers current issues in ADR, such as quality control in mediation and the expansion of arbitration into statutory employment law claims.
Larry T. Garvin, Contract Theory and Contract Law, in Bin Liang & Hong Lu eds., JURISPRUDENCE, translated into Chinese by Xiaoyi “Amy” Sun (Renmin Univ. of China Press 2011).
This chapter is part of a book intended for advanced social science students in China seeking an introduction to jurisprudence, with chapters by leading scholars in a variety of fields. Larry’s chapter covers theories of contract law and important recent developments in the field. This includes the recent trends towards theories that take account of non-contractual relations, transaction costs and behavioral tendencies, as well as a rise in normative approaches to contract. On the doctrinal level one of the trends examined is the increased prominence of form contracts and contracts of adhesion that have been a part of the rise in electronic commerce. Notwithstanding the increasing variation across contract types and across jurisdictions, Larry finds some broadly applicable principles.
Ellen E. Deason (w/Edward Brunet & Charles B. Craver), ALTERNATIVE DISPUTE RESOLUTION: THE ADVOCATE’S PERSPECTIVE CASES AND MATERIALS (4th ed.) (Lexis/Nexis 2011).
This leading text on Alternative Dispute Resolution (“ADR”) is divided into four sections—Negotiation, Mediation, Arbitration and Government Sponsored ADR—and Ellen has primary responsibility for the Mediation section and the topic of Court Annexed ADR processes (e.g., early neutral assessment, mandatory mediation, summary trial . . .), which is the bulk of Government sponsored ADR. This five-year revision incorporates substantial changes to these sections, including new problem sets and, in the divorce mediation sections, new material on domestic violence and collaborative law.
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.
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