Faculty Scholarship Digest

August 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, The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions, 61 FLA. L. REV.. 709 (2009).

This article, part of a symposium on the revisions to the Model Penal Code: Sentencing (“MPCS”), levels a strong macro-critique of both the basic premises and the structural suggestions of the MPCS, charging it with failing to address the most important normative challenge of contemporary sentencing and, as result, amounting to a missed opportunity at best and a codification of disastrous dynamics at worst.

The original Model Penal Code sentencing provisions, completed in 1962, gave judges and parole officials enormous discretionary authority to fit individual sentences to specific, perceived rehabilitative needs. Berman concedes that, as a descriptive matter, this is a dated model; over the past 30-40 years, the rehabilitative ideal and the post-trial discretion that went with it have suffered innumerable attacks, and mandatory minimum sentences, parole abolishment and other means of limiting post-conviction discretion regarding incarceration have proliferated.

Simultaneously, as Berman details in this article, incarceration in this country has skyrocketed. Choose your statistic: 3% of the U.S. population has done time; more than 2,225 people are in prison for life for crimes committed as a child (in 154 countries for which Human Rights Watch has data, only three other countries provided life without parole for crimes committed by children, with only about a dozen combined cases in those three countries); the U.S. has the highest incarceration rate in the world, easily outpacing runners up China (which has the same total number of prisoners with a much larger population), Russia and Cuba.

In the context of this explosion of mass incarceration, Berman argues that the MPCS makes a grave mistake in failing to consider the values of liberty and progressivism that informed sentencing development from the 19th century through the Model Penal Code and by “throw[ing] out the parole baby with the sentencing reform bath-water.”

While approving in general of the model of sentencing commissions (administrative agencies designed to develop and implement coherent, jurisdiction-wide sentencing practices) that have become widespread and are the crux of the MPCS, Berman argues that experience has shown such commissions to be generally ineffective in the face of the pathologies of contemporary sentencing determinations that he describes, with the result that they often serve merely as handmaidens to “what is really broken in modern American sentencing and punishment systems.” Instead, he argues the MPCS “should directly assail and seek to remedy modern injustices that have come to define sentencing attitudes and practices.”

Melanie Oberlin (w/Melissa Guy), Assessing the Health of FOIA After 2000 through the Lens of the National Security Archive and Federal Government Audits, 101 LAW LIBRARY J. 331 (2009).

The events of September 11 led to reassessment and retrenchment regarding the balance between government power and liberty in many different areas. In this article, Oberlin and her coauthor carefully assess what has happened to the force of the Freedom of Information Act (“FOIA”) in the 21st Century. In doing so, they draw upon empirical reports issued by the Government Accounting Office and the National Security Archive, an independent non-profit research institute. The reader learns a great deal not only about FOIA disclosure, but also about the challenges involved in implementing policy choices across an institution as large as the United States government.

Following September 11 (which Oberlin notes was early in the Bush administration, so that it may be that some of these changes would have occurred anyway), the Executive Branch made three major changes regarding FOIA: the previous administration’s “presumption of disclosure” in discretionary cases was replaced with, as the article describes it, a presumption of nondisclosure, the Department of Justice began defending non-disclosures whenever there was “a sound legal basis” as opposed to the earlier approach of requiring foreseeable harm from the disclosure, and a new category of “Sensitive but Unclassified” (“SBU”) information was created and treated as a de facto additional exemption from disclosure.

The Obama administration has reversed the first two of these changes, but the article details other issues, such as vast processing backlogs and inconsistent definitions of SBU’s (and its successor category, Controlled Unclassified Information) across agencies that have, in the authors’ account, greatly hampered the fulfillment of FOIA’s mission. The article concludes with a series of recommendations, including proactive disclosure, consistent policies across agencies, and better funding.

Book Chapter

Joseph B. Stulberg (w/Maria Pilar Canedo Arrillaga & Dana Potockova), Minimizing Communication Barriers, in Christopher Honeyman et. al. eds., RETHUNKING NEGOTIATION TEACHING, INNOVATIONS FOR CONTEXT AND CULTURE (DRI Press 2009).

Stulberg and his co-authors (a Vice-Dean on a law faculty in Spain and a Managing Director of a conflict resolution group in the Czech Republic) share extensive experience in teaching international negotiations to audiences whose native language is not the same as the instructor’s. In this chapter of a book on negotiation instruction, they present a detailed series of best practices for conducting negotiation workshops for global professionals across different native languages.

The chapter is divided into two sections, one for presenters whose native language is not English presenting materials in English, and one for native English speakers presenting to an audience for whom English is a second language (the latter circumstance, of course, being the one Stulberg frequently experiences). The chapter details many steps and principles to follow for success in each situation. For the native English speaker leading a negotiation workshop, Stulberg and his coauthors recommend a carefully prepared, targeted lecture as the major component of the instruction and provide guidance for success on this dimension as well as suggestions for effective interactive exercises in this special context.

Book Review

Steven F. Huefner, Just How Settled Are the Legal Principles that Control Election Disputes?, 8 ELECTION L. J. 233 (2009).

“Much less settled than the book’s author would lead you to believe” summarizes Steve’s answer to the titular question posed in his review of the second edition of Barry Weinberg’s THE RESOLUTION OF ELECTION DISPUTES: LEGAL PRINCIPLES THAT CONTROL ELECTION CHALLENGES. The review describes Weinberg’s book, originally published in 2006, as the first of its kind in the understudied field of post-election remedies (a field to which both Steve and Professor Edward Foley have subsequently made significant contributions). The book is organized around six chapters which use digests of 58 state election cases to present “a set of legal principles governing election contests.”

While praising the book as a “useful reference work and primer on key issues,” the review expresses concern with the book’s pronouncement of “definitive legal propositions” (e.g., courts lack jurisdiction if a fundamental statutory procedure has not been satisfied, and “there is no common law basis for an election challenge”) that are, in some instances, supported only by anecdotal evidence of selected cases and, with regard to some, are overstated, contested across states, or wrong. While Steve considers that such summaries overlooking nuance and variation may be useful for emerging democracies, a “key audience for IFES publications” such as this one, more caution is needed for the domestic user than the too-little-too-late caveat in the book’s conclusion provides. Separately, Steve questions the book’s omission of any discussion “of proportional deduction as a possible remedy for unlawful voting when the beneficiary of specific unlawful votes cannot be identified.”

Notwithstanding these criticisms, Steve considers the book a rich set of materials for discussion by teachers and students and a useful idea-facilitator for election lawyers in what remains an under-served area.

Book Supplement

Joshua Dressler and Alan C. Michaels, 2009 SUPPLEMENT TO UNDERSTANDING CRIMINAL PROCEDURE (4TH ED.)(Lexis/Nexis).

In this single volume supplement to their two-volume treatise, Dressler and Michaels cover the latest developments in criminal procedure, both at the Supreme Court level and on the scholarly front. Coverage includes Herring v. United States, in which the Court “may very well be announcing an important change in the exclusionary rule” that would constitute a major retrenchment, Safford Unified School District #1 v. Redding, the case involving the “strip search” of a 13-year old girl, in which the Court by an arguably surprising 8-1 margin held the search unconstitutional on the facts of the particular case, and Melendez-Diaz v. Massachusetts, in which the Court held that the Confrontation Clause bars admission under the business records exception to the hearsay rule of a document prepared to establish facts in a criminal proceeding.

Supreme Court Brief

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.