Faculty Scholarship Digest

January 2009

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.


Douglas A. Berman

Douglas A. Berman, A Capital Waste of Time? Examining the Supreme Court’s “Culture of Death”, 34 OHIO NORTHERN L. REV. 861 (2008).

In recent years, the Supreme Court has decided fewer cases than at any point in the past 100 years, even though more cases than ever are submitted for its consideration. For example, in 1930 the Court decided 235 of the 1,300 cases presented to it on the merits. By 1970, the number of merits decisions had almost been cut in half, while the number of petitions had tripled. In this century, the Court decides less than 1% of the cases presented to it on the merits, reaching a low of 68 merits opinions in 2006. At the same time, death penalty issues, virtually absent from the Court prior to 1967, have become a significant part of the Court’s docket, averaging six cases per year over the last three decades. In this article, Berman canvasses these changes and the accepted reasons for them, and suggests that “the Court is caught up in a ‘culture of death,’ which leads the Justices to ‘waste’ an extraordinary amount of its scarce time and energy to reviewing capital cases.” Berman argues that the Court has taken on an “error correction” role in capital cases that has four categories of serious negative consequences.

One problem he notes is that death penalty cases are now a regional phenomena that arise in a tiny percentage of criminal cases. As far as criminal justice goes, he writes that “it is fair to suggest that the Supreme Court . . . essentially transforms itself from the highest court in the land into the highest court for serious murder cases in Texas and a few other states.” Berman contends that this attention has led the court to spend insufficient time on other criminal justice matters. Berman also argues that this attention from the Supreme Court has led the legislative and executive branches in state governments to abdicate their responsibilities in this area, even though they may be better situated to regulate death penalty litigation. Finally, Berman suggests that the greatest damage is the symbolic signal from the Court that only capital cases merit sustained attention. In his conclusion, Berman suggests that with Justices Roberts and Alito replacing Rehnquist and O’Connor, the Court may be starting to move away from “its troublesome affinity for obsessing over capital cases.”

Sarah Rudolph Cole

Sarah Rudolph Cole (with Theodore H. Frank), The Current State of Consumer Arbitration, DISPUTE RES. MAG. 30 (Fall 2008).

In this article, Cole and her co-author vigorously contest the conclusions of Public Citizen, the consumer advocacy group, in a 2007 report (that received substantial media attention) that purported to demonstrate that consumer arbitration is bad for the “little guy.” Cole and her co-author criticize the Public Citizen report for selective use of data. In particular, they note that Public Citizen limited itself almost exclusively to “collection cases,” in which the consumer is the defendant. In these cases, they report that consumers do almost always lose, whether in arbitration or litigation, because the consumer does in fact have the credit card debt in question.

Reviewing other empirical studies, Cole and her co-author write that consumers actually prevailed in 32.1% of initiated arbitrations and, even when they lost, won reductions of their amounts owed in about one-third of the cases. Other studies they review show that consumers prevail more than half the time in consumer initiated cases and report satisfaction with the outcome about 70% of the time. In addition, Cole and her co-author note studies that show consumers prevail at a nearly 10% higher rate when they bring cases in arbitration as opposed to civil court (65% compared to 60%), whereas when the business brings the case, businesses prevail at roughly the same rate (75%) through either process. In addition, consumers paid lower fees in arbitration cases.

Cole and her coauthor conclude that the data, read fairly, suggests that “arbitration is a relatively inexpensive and fair mechanism that produces positive outcomes for consumers,” even without accounting for “the benefits to consumers through lower prices from mandatory binding arbitration clauses.”



Colker is widely regarded as the founder of the field of disability studies, in which many other scholars now also toil, and her disability work has covered many matters — instructional, doctrinal, empirical, constitutional, and procedural. In this very accessible volume, Colker provides a theoretical viewpoint for disability law. Her thesis is that disability law and policy should be driven by an anti-subordination understanding of equality, as opposed to the dominant formal equality model. In this view, “[a] lack of power rather than different treatment . . . is the root problem of inequality.” One aspect of this argument that makes it both powerful, but controversial (even amongst disability advocates), is that its justifications sometimes depart from equal-treatment, integrationist solutions. Hence the negative pregnant of the book’s title; Colker argues that in the disability context, sometimes separate is more equal. The book’s first two chapters establish this theoretical framework, explaining its origins and placing it in the disability context. Succeeding chapters examine the theory in the context of employment, K-12 education, testing (law school testing in particular) and voting. A final chapter takes Colker’s conclusions about the limits of formal equality in the disability context and applies them back to the context of race.

Throughout the book, Colker supports her theoretical perspective by rallying empirical evidence. She argues that the anti-subordination approach is better because it more often produces better outcomes, and because, more fundamentally, it allows consideration of such outcomes. Colker’s use of her framework to argue where Congress and, especially, courts went wrong with the ADA and the IDEA provides an insightful critique of existing doctrine and, agree or disagree, a powerful alternative vision. Her chapter on the LSAT and law school exams includes a great deal of history and empirical information about both and is of interest to our community even apart from the disability discussion. And, as to the “extra time” approach in use throughout higher education, Colker explains why, though better than nothing, evidence indicates it falls well short of being a “solution.”


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.