Faculty Scholarship Digest

April 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.


Edward B. Foley (with Christopher S. Elmendorf), Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court, 17 WM. & MARY BILL OF RIGHTS J. 507 (2008).

This article undertakes a serious examination of the Supreme Court’s methodology in deciding on the constitutionality of election regulations and finds the Court’s recent jurisprudence wanting, at least as a matter of consistency. The article divides the Court’s approach on these questions into three different eras. In the first era, the approach was to consider such issues nonjusticiable political questions, unless the text of the Constitution made such avoidance impossible. In the second era, the Court reversed field, taking the view that laws burdening unenumerated political rights were presumptively unconstitutional and subject to strict scrutiny. The third era, starting in the early 1970s, took a middle course — retaining the idea of fundamental rights to vote and to ballot access but also appreciating “the sheer pervasiveness of election regulation, much of which seemed prima facie justifiable.” Under this approach, the Court wrote, there is no “litmus-paper test for separating those restrictions that are valid from those that are [unconstitutional].” The focus of this article is the Court’s methodology for deciding cases in this third, ongoing, era.

The article describes three different basic approaches: (i) “unmediated balancing” in which the Court simply decides whether the application of the regulation is reasonable given the interests served and the burdens imposed; (ii) “rule-content gatekeeping,” in which the regulation is subjected to strict scrutiny on the one hand or something akin to rational basis review on the other, depending on some feature of the regulation itself, apart from consideration of its consequences; and (iii) “consequential gatekeeping” in which the level of scrutiny is determined by the “record evidence of the requirements’ impact.”

Foley and his coauthor canvass the cases to demonstrate that the Court over the past twenty years generally followed one of the “gatekeeping” approaches, usually the rule-content approach, though without expressly describing, or even grappling with, its methodology. In the 2007 term, however, the Court decided four election law cases using very different methodologies each time, so that a lower court could now justify following each of the three approaches on the basis of a decision from the 2007 term.

The article then turns to the question of what accounts for this “methodological pluralism.” The authors “tentative view” is that “most Justices (even Scalia) approach constitutional election law thinking less about doctrinal coherence or interpretive principle than about the implications of their rulings for the system of government as a whole.”

In the end, though, Foley and his co-author argue that “[t]he ship needs a new compass, and we need to better understand why — despite its own episodic recognition of this need — the Court has been unable to procure one for itself.”


John Quigley, The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Access Cases: Reasons and Consequences, 19 DUKE J. COMP. & INT’L L. 263 (2009).

Quigley is the leading authority in the United States on consular relations, the author of a treatise and many articles on the subject. This article provides a thorough and up-to-date analysis of an important aspect of consular law that has long been a particular focus for Quigley: the obligation under the Vienna Convention on Consular Relations (“VCCR”) to inform a foreign national arrested in this country of a right to communicate with the consular post of the arrestee’s home country, and, most particularly, the remedy for a violation of that obligation.

As Quigley explains, the United States has taken the position that the right belongs to the foreign country and not to the arrestee and, in any event, that there is no suppression remedy. These positions have been successful in U.S. courts, where the issue has arisen most prominently in cases in which foreign nationals are facing the death penalty, but have been widely rejected (Quigley argues correctly) by other countries and by international tribunals, including the International Court of Justice (“ICJ”). In 2005, the United States gave notice that it was withdrawing from the “Optional Protocol” that allows the U.S. to sue and be sued in the ICJ for disputes arising under the VCCR, although thirty-five years earlier, the United States had been the primary mover behind pushing countries to accede to such ICJ jurisdiction.

After reviewing this history, the article explores the withdrawal in detail. To begin with, there are substantial questions about the procedural requirements and possibility of a withdrawal, the effect on pending cases, and how those questions would be adjudicated, and the article covers those issues in detail. The article also discusses the substantive reasons for and likely impact of the U.S. withdrawal, including the role of the issues of capital punishment and federalism in the decision to withdraw and the possible responses from other states.


Joshua Dressler, UNDERSTANDING CRIMINAL LAW (5th Ed. 2009).

This book, first published in 1987, is the contemporary bible for criminal law study and the cornerstone for Dressler’s leading status in the field. Though the Preface modestly describes the text as “primarily designed for use by law students,” and it is published in unassuming paperback form, Understanding Criminal Law has emerged as the leading treatise in the field — the “go to” starting point for scholars as well as students, and a source increasingly cited in judicial opinions and pattern jury instructions, in addition to its frequent scholarly citations.

The book’s extraordinary combination of clarity, conciseness, and comprehensiveness are fundamental to such diverse audiences accepting and relying on the work. In addition, more than twenty years in, the book remains current both in its topical treatments and in the scholarly references it provides for each subject addressed. This new edition, conscious of the response earlier editions have received, avoids undue tinkering and focuses on bringing the entire work up to date.