Faculty Scholarship Digest

March 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.


James J. Brudney, The Supreme Court as Interstitial Actor: Justice Ginsburg’s Eclectic Approach to Statutory Interpretation, 70 OHIO ST. L. J. 889 (2009).

In this article, part of a symposium at the Mortiz College of Law examining Justice Ginsburg’s first fifteen years as a Supreme Court Justice, Jim analyzes her approach to statutory interpretation through a representative sampling of Ginsburg opinions in three distinct fields: criminal law, labor law and civil rights. Jim notes that Justice Ginsburg has remained largely above the fray of the interpretive methodology wars that have raged during her tenure—the battles over textualism vs. intentionalism, deference to executive interpretation, the use of legislative history and so forth.

Jim describes that in the criminal arena, Justice Ginsburg’s opinions have relied on close textual readings and cannons of construction, while discounting legislative history and executive interpretations, which have narrowed the interpretation of criminal statutes affecting both white collar crimes and street crimes. In contrast, in the labor and civil rights cases, Jim finds what he describes as a much greater “deference to the political branches,” manifested by a greater tendency to find statutory language ambiguous and to rely on legislative history and administrative interpretations. This is the “eclectic” approach referred to in the article’s title.

Yet, while acknowledging the possibility of an accusation of result-oriented decision-making as the cause, Jim theorizes (supported both by the opinions he analyzes and lectures the Justice gave when she was Judge Ginsburg) that the Justice is particularly sensitive to the Court’s institutional role in discussions with the other branches: “In Ginsburg’s view,” Jim suggests, “the Court should be more activist in promoting clarity and predictability—even at the risk of frustrating Congress’s likely purpose—when such clarity is important for constitutionally informed policy reasons and also is deemed relatively easy for Congress to achieve.” On the other hand, Jim writes, Justice Ginsburg is less likely to insist on clarity and more likely to defer to legislative intent “when the policy issues were resolved through complex regulatory bargains negotiated by experienced political actors on both sides.”

Martha  Chamallas

Martha Chamallas, Ledbetter, Gender Equity and Institutional Context, 70 OHIO ST. L. J. 1037 (2009).

In this article, part of a symposium at the Mortiz College of Law examining Justice Ginsburg’s first fifteen years as a Supreme Court Justice, Martha uses Justice Ginsburg’s dissent in the Ledbetter case to identify an institutional perspective in Justice Ginsburg’s gender equity jurisprudence, which sometimes operates to the benefit of discrimination plaintiffs, but other times works to the benefit of defendants.

In Ledbetter, the Supreme Court held (5-4) that in a Title VII pay discrimination case the statute of limitations runs from the time of the employer’s initial discriminatory pay decision, rejecting the “paycheck accrual rule” under which courts had found a relevant violation “each time an employer issued a paycheck to an employee that was tainted by discrimination.” Justice Ginsburg dissented orally from the bench, signaling the strength of her objection to the Court’s ruling, and invited Congress to override the decision, an invitation Congress accepted in passing the Lilly Ledbetter Fair Pay Act.

The article brings salience to two important features of Justice Ginsburg’s dissent, that Martha shows are consistent with Justice Ginsburg’s approach in cases involving gender. First, Justice Ginsburg attended to the “real-world characteristics” of pay discrimination, noting that it is often made up of small discrepancies that only become apparent over time and through processes often hidden from employees’ points of view.

Second, Justice Ginsburg stressed that management at Ledbetter’s company at least should have known about the discrimination and yet did nothing to correct it, and noted the special context of sex-based pay disparities, which an employer gains from “in a way it does not from a discriminatory denial of promotion, hiring or transfer.” Only in the pay disparity case does the employer actually reduce its costs. Thus, Martha emphasizes, this institutional perspective led Justice Ginsburg to conclude that “something had to be done to ameliorate” the results of this special circumstance. Although this “institutional perspective” cut in the plaintiff’s favor in this case, the article also discusses a Ginsburg opinion in which the institutional perspective helped the defendant—the Suder case in which Justice Ginsburg wrote the majority opinion holding that an employer should not automatically be vicariously liable for a supervisor’s harassment of an employee.

Deborah Jones Merritt, Pedagogy, Progress and Portfolios, 25 OHIO ST. J. DISP. RESOLUTION 7 (2009).

In this article, part of a Symposium on teaching Alternative Dispute Resoultion in law schools, Debby offers a careful and insightful description of the potential role for student portfolios in law school education and their specific advantages for ADR education, in particular continuing an ADR “tradition” of advancing new pedagogies and leading in practical and experiential training.

Portfolios, long a staple for artists and architects, are expanding their domain as electronic formats increase their flexibility and allow students to “map, document, and display their achievements” in other disciplines, including law. By including educational goals, steps for achievement, and reflections on performance, portfolios can advance legal education, Debby explains, in many ways.

These include enhancing learning by articulating for students the goals of the curriculum and thereby helping students achieve them, integrating extracurricular work into students’ professional development (as, for example, our certificate in dispute resolution already does), documenting professional skills training, whether in the context of a doctrinal class (e.g., a drafting exercise in a Contracts, or Trusts and Estates Class) or a skills class, enhancing employment opportunities by highlighting a student’s competencies (that legal employers themselves are studying more systematically) and providing easy and impressive “one-click” viewing of a student’s multiple accomplishments, and, finally, instilling the habit of lifelong education by teaching the building blocks for self-education, “identifying specific goals and recognizing concrete steps toward achieving those goals.”

Portfolios would provide additional benefits to the ADR curriculum, the article explains, by diminishing the relevance of arguments about ADR’s “exact place in the curriculum” and facilitating its growth by means of facilitating recognition of ADR components in existing courses, as well as by “leveraging the contributions of employers and other practitioners.”

Marc Spindelman, Toward a Progressive Perspective on Justice Ginsburg’s Constitution, 70 OHIO ST. L. J. 1115 (2009).

In this contribution to the Law Journal’s Ginsburg Symposium, Mark examines Justice Ginsburg’s constitutional jurisprudence from the perspective of “progressive constitutionalism,” the argument that progressive politics “would stand a better chance of success than they presently do if the Supreme Court were to stand back and give the political processes their head.” According to this view, progressives would be better served instrumentally by a Court that was highly deferential to the legislative branches, that such deference would produce more robust progressive outcomes than a dependence on judicial review.

The article notes that Justice Ginsburg’s general tendencies towards incremental decisions and “a more dialogic approach” with the political branches are in general alignment with the values of progressive constitutionalism. Looking at her approach in some large-themed cases in her tenure involving sex discrimination, abortion, sexual intimacy, and assisted suicide, Marc concludes that progressive constitutionalism can offer “measured nods” to Justice Ginsburg.

In the end, Marc concludes, Justice Ginsburg has shown “an active faith . . . in the possibilities of politics and political deliberation, a faith in our institutions of government, and ultimately in the American people.”

Daniel P. Tokaji, The Future of Election Reform: From Rules to Institutions, 28 YALE L. & POL. REV. 125 (2009).

Since the terrible electoral controversy of the the 2000 presidential election, election reform has been a hot topic. In this article, Dan examines the current state of such efforts. His thesis is twofold. First, the article argues that the focus of reform debates—which to date have focused on the competing issues of access and integrity—need to shift from “the rules governing elections to the institutions responsible for running them.”

Second, on the nature of institutional reform, the article offers a partial dissent from the “new institutionalism” offered by other leading election law scholars who do share Dan’s advocacy of a “turn toward institutional solutions.” The article contends that the primary direction of reform should be to replace partisan state election administration officials (the dominant model in the United States) with politically independent local authorities. By arguing from both international and domestic examples, Dan paints a more optimistic picture of the possibility of obtaining such reforms than some other new institutionalists.

The article also doubts reforms that would depend on federal administrative oversight. In addition to such advantages of decentralization as the difficulty of national electoral capture by one party, Dan describes the experience of the federal Election Assistance Commission under the Help America Vote Act of 2002 as “call[ing] for extreme caution in this area.”

Finally, Dan urges a continued significant role for federal courts in ensuring fair elections. He argues that while nonpartisan officials and “incentives [that] align sufficiently with the public interest” would reduce the need for federal court intervention (and might be preferable), “that is not the present reality, nor is it likely to be the reality for the foreseeable future.” To this end, Dan suggests means by which federal courts can show less deference to decisions of partisan state officials and urges “a more generous standard for recognizing a private right of action in claims challenging the conduct of partisan election officials.”


Joshua Dressler (w/George C. Thomas III), CRIMINAL PROCEDURE, PRINCIPLES, POLICIES AND PERSPECTIVES (West 4th ed. 2010).

This is the latest edition of Joshua’s leading criminal procedure casebook, covering both the investigation and adjudication portions of the course. Criminal procedure cases are a constant concern of the United States Supreme Court, so that new and revised materials are a constant in this field, always presenting the challenge of covering necessary history—sans the twists and turns, current doctrine often cannot be understood either for application or critique—and supplying the ever-multiplying rules, without allowing the materials to be come excessively unwieldy. In this latest edition (I’m especially familiar with it because I use the book in my own Criminal Procedure class), Professor Dressler and his co-author have ruthlessly and effectively sustained this balance, a painful task for authors who must face deleting wonderful explanatory material and create equally useful replacements. An impressive achievement, but no rest for the weary: a supplement will no doubt be necessary for next fall, as the Court will issue more bookworthy decisions this term.

Jeffrey S. Sutton (w/Randy J. Holland et al.), STATE CONSTITUTIONAL LAW, THE MODERN EXPERIENCE (West 2010).

Judge Sutton has made the teaching of state constitutional law, a course he offers at the Moritz College of Law, a theme of his scholarship. Judge Sutton has argued passionately and persuasively about the importance of state constitutional law and the need for it to appear more consistently in law school curricula. In this casebook, Judge Sutton and his co-authors further that cause by providing a careful, comprehensive and deep set of teaching materials for a state constitutional law class. This 950-page volume begins with chapters covering some overarching matters (history of state constitutions, dual sovereignty, and theories of state constitutional interpretation), then covers the array of most significant areas in which both state constitutions and the U.S. Constitution operate (e.g., equality, due process, criminal procedure, property rights) and finally turns to state specific issues, such as provisions with no federal counterparts (e.g., “public purpose” requirements that bar the use of tax revenues for private individuals), and rules governing the organization of state governments and the amendment of state constitutions.