Faculty Scholarship Digest

January 2010

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.


Martha  Chamallas

Martha Chamallas, Unpacking Emotional Distress: Sexual Exploitation, Reproductive Harm, and Fundamental Rights, 44 WAKE FOREST L. REV. 1109 (2009).

The gradually forthcoming RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM marks an important underlying shift in the law regarding emotional distress claims. Martha explains that the Restatement recognizes that the question has critically changed from “whether to provide compensation for negligently inflicted emotional distress to when to provide such compensation.” That not only intentional, but also negligent, infliction of emotional distress can be actionable is now clear; what remains is to settle, in the words of the Restatement, which “activities, undertakings, or relationships” ought to provide potential grounds for such liability, beyond the generalization of those “likely to cause serious emotional disturbance.”

In this article, Martha provides a partial answer to that question. She argues the certain interests, particularly those recognized as fundamental from a constitutional perspective, should be among those triggering the duty of care against inflicting emotional injury. Two such interests are sexual autonomy and reproduction, and Martha argues that negligent infliction of emotional distress should be a ground for recovery in sexual exploitation cases (e.g., the plaintiff whose then-boyfriend secretly videotaped them having sex and then passed around the video with the result, among others, that she became known as the “porno queen” to her college classmates) and reproductive-harm cases (e.g., coercive sterilization of poor mothers). She argues that early rules used to cabin this liability—such as requirements of a “physical manifestation” of the emotional harm or of a contractual relationship—miss the key connection of many of the cases “to intimate human relationships and personal interests” unrelated to either physical harm or contract. Far better, the article concludes, to offer protection where “fundamental constitutional interests” that “represent important norms of liberty” come into play.

Ed Lee, Remixing Lessig, 6 I/S J. OF L. & POL. FOR THE INFORMATION SOC. 41 (2010).

In this article, Ed discusses Lawrence Lessig’s recent book, Remix: Making Art and Commerce Thrive in the Hybrid Economy. The article provides an expansive survey of developments in the “remix world,” speculation about where it will go next, and suggestions for corresponding changes to copyright law. As Ed describes, the internet now allows us not only to “consume” content, but to “interact” with it to make new creations, “such as writing to a Facebook wall, blog post, or Twitter page, or posting a video on YouTube.”

Remixing—embedding a preexisting work into one’s own new creation—is a large part of this new world, as most of us have experienced. The article praises Lessig for recognizing quotations in writing as a form of remixing and for wondering why “sampling” of text by quotation is allowed but similar use of music and videos is not. Ed explores the legal landscape regarding remixing, the value of amateur expression of this kind, and he recommends appropriate legal reform.

The second half of the article examines Lessig’s exploration of “Remixing economies.” Lessig draws a distinction between “sharing economies” in which users are neither charged nor compensated for their interaction (e.g., Wikipedia), and “commercial economies,” in which the interaction centers on a monetary exchange. Lessig believes that the future of internet commercialization lies in a “hybrid economy” that combines the two, ether by leveraging monetary value from a shared economy (charging for ads on Facebook) or by creating a commercial venture to better support sharing aims (e.g., Craigslist). Examples such as iPhone applications, YouTube and Hulu videos, and other newly familiar names are considered in this framework.



Thirty years ago, fewer than 350,000 people were held in prisons and jails in the United States. Today, the number of inmates in the United States exceeds 2,000,000. In this book, Michelle argues that this system of mass incarceration “operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race.” The War on Drugs, the book contends, has created “a lower caste of individuals who are permanently barred by law and custom from mainstream society.” Mass incarceration and the disabilities that come with the label “felon” serve, metaphorically, as the new Jim Crow.

The book develops this argument with systematic care. The first chapter provides context with a brief history of the rise, fall and interrelation of the first two racial caste systems in the United States, slavery and Jim Crow. Subsequent chapters provide close scrutiny of the system of mass incarceration that has arisen over the past thirty years, examining each stage of the process (e.g., criminalization, investigation, prosecution, sentencing), the many collateral consequences of a felony conviction (entirely apart from any prison time) and how and why each of these has operated to the detriment of African-Americans.

The book also explores how the caste system Michelle identifies is both different and not-so-different from Jim Crow, the many political and economic forces now invested in sustaining it, and how it has been rendered virtually immune to challenge through litigation. The book concludes with an argument that while many particular reforms will be needed, nothing short of a social movement that changes public acceptance of the current system can solve this problem and offers critiques and proposals for the civil rights movement based on this analysis. Everyone who reads this book will come away seeing the War on Drugs and mass incarceration in a new light.

Sharon L. Davies


This book describes, in narrative form, the true story of the 1921 killing of Father James Coyle by Edwin Stephenson, a Protestant minister, in retaliation for Coyle’s marriage of Stephenson’s daughter to Pedro Guzman, a Catholic. The shooting took place in Birmingham, Alabama and Stephenson was represented at his subsequent trial by a young Hugo Black, before Black joined and then resigned the Ku Klux Klan, was elected to the U.S. Senate and appointed to the U.S. Supreme Court.

Stephenson’s subsequent trial was one of the first “trials of the century,” and Sharon brings her expertise in criminal law and procedure to bear on that gripping drama. Yet, through painstaking historical research and compelling writing, the book offers much more. A page-turning narrative places readers in the United States of 90 years ago in fully realized detail. The landscape of the interplay between family, social attitudes and legal regulation on the one hand, and race, religion and marriage on the other, reveals itself through Sharon’s explication of these events, with the result that the book provides some shocking perspectives on the not-so-distant past and some familiar and enlightening perspectives on some debates that are still with us.

Here is the beginning:

There was little to distinguish Thursday, August 11, 1921, from any of the other days that choked Birmingham that week beneath a blanket of heat, with the exception that Ruth Stephenson and Pedro Gussman chose it as their wedding day. And likely the unremarkable character of the day was part of the couple’s plan, as they would have wanted a day with as little to commend itself as possible. A day less apt to stand out; one that would draw no attention. As if only on a day so pedestrian, and by a strategy uncluttered by its particulars, could they ever hope to bring the thing off.

The trouble was not that the law prevented Ruth Stephenson and Pedro Gussman’s union, though in 1921, like most states, Alabama had a great deal to say about who could marry whom, and who could not ....

Supreme Court Briefs

Douglas A. Berman

Douglas A. Berman (w/Jason Blake and Vasanth Ananth), Brief of Amicus Curiae in support of Respondents, McDonald v. City of Chicago, No. 08-1521 (U.S. Supreme Court 2009).

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment provides an individual right “to keep and bear arms.” In this closely-watched follow-up case, the Court faces the critical question of whether the Second Amendment and its newly invigorated individual right applies not only to the federal government (as it held in Heller) but to states and localities as well, in other words, whether the right is “incorporated.”

With only a few exceptions, over the years, the Court found almost the entire Bill of Rights incorporated against the states. Moreover, when a specific provision is incorporated, the Court has almost (but not always) held that it is incorporated “jot for jot” or “bag and baggage.” For example, a provision such as the Sixth Amendment right to counsel not only applies to the states, but has the same meaning when applied to the states as it does when applied to the federal government.

In this brief, Doug, aided by two Moritz students, argues that incorporation of the Second Amendment should not be “jot for jot.” Indeed, Doug and his students argue that the Second Amendment should apply less rigorously to localities (such as Chicago) than to states. In support of this view, the brief marshals historical evidence from the time of the framing forward regarding the role of localities in regulating firearms and cites § 1983 liability as a precedent for its unusual suggestion that localities be treated distinctly from states for such purposes—drawing a parallel in the risks to localities of constitutional litigation in both contexts. The brief also offers modern public safety concerns in support of its viewpoint.

Douglas A. Berman

Douglas A. Berman (w/Samuel L. Feder (counsel of record) et al.), Brief of Amicus Curiae Center on the Administration of Criminal Law in support of Respondents, United States v. O’Brien, No. 08-1569 (U.S. Supreme Court 2009).

In Apprendi v. New Jersey and its progeny, the Supreme Court upset large portions of then-existing sentencing rules by holding that a fact that raises the maximum sentence a defendant can receive must be found by a jury beyond a reasonable doubt or admitted by the defendant. A sentencing finding by the judge is not sufficient. At the same time, the Court has maintained its pre-Apprendi view that a fact that raises the minimum sentence a defendant can receive may be found by a judge at sentencing. The Court has maintained this distinct treatment of mandatory minimum sentences by the slimmest of margins and more as a result of hostility on the Court to Apprendi and its progeny than as a result of a true distinction. O’Brien gives the Court the opportunity to visit the issues again, and this amicus brief urges extending the Apprendi line to mandatory minimums.

The brief emphasizes not only the theoretical inconsistency of the mandatory-minimum “loophole,” but also that, by allowing judicial fact-finding for mandatory minimums only, negative effects in terms of fairness, proportionality and efforts to reduce racial disparity in sentencing are exacerbated. On this last point, the brief documents that 83% of federal mandatory minimum sentences are for drug cases and that mandatory minimum sentences are imposed on Black offenders disproportionately to “their already high percentage . . . of the overall offender population.”