Faculty Scholarship Digest

June 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.


Terri L. Enns, Students Critiquing Novice Writing: Building Hope by Building Bridges, 48 DUQUESNE L. REV. 403 (2010).

This article grew from a conference surrounding an article by Allison Martin and Kevin Rand arguing that legal education should “aim to instill hope in . . . students because hope and optimism are critical for law student success” in the short and long terms. Terri examines the role of hope in the context of the legal-writing classroom and deconstructs with this perspective an in-class critiquing exercise she uses in teaching Legal Writing and Analysis.

The article begins with discussion of the role hope and optimism can play in successful learning outcomes and the barriers the common frustrations of new legal writing students present to achieving this positive outlook. The article then turns to Terri’s exercise, in which, between the rough draft and the final version of the first student memo, they receive an identical writing sample and a grading rubric (the same one she uses to grade the students). The students spend about 15 minutes “in Terri’s shoes,” analyzing strengths and weaknesses and how they would help the writer improve.

At the end, Terri reveals the sample was her first piece of legal writing as a law student. She explains how this advances “hope” (a sophisticated multi-faceted concept that the article breaks down into several components) both with clear analysis and through written comments her students submitted. First, becoming “the Reader” helps the students set realistic and appropriate goals for their own legal writing. Second, critiquing the novice writing of an ultimately successful lawyer helps model learning as a process for the students. Third, sitting in the role of critic helps the student better understand the assessment process, thereby helping them emerge from it with hope in tact. Finally, critiquing the novice writing of a successful professional helps with the students’ “agentic thinking,” which Martin and Rand describe as “the motivational component to propel people along their imagined route to their goals.”

Creola Johnson, The Magic of Group Identity: How Predatory Lenders Use Minorities to Target Communities of Color, 17 G’TOWN J. ON POVERTY L. & POL. 165 (2010).

This substantial article covers contemporary lending practices targeted at minority communities, their dangers and effects, the means of marketing them, and the current litigation and regulatory status of such practices. The article endorses creation of a Consumer Financial Protection Agency (“CFPA”) and analyzes the strengths and weaknesses of the version of such an agency contained in the financial reform bill passed by the U.S. House of Representatives in December 2009. While giving special attention to subprime mortgages, the article also covers interest-rate markups on car loans, tax-refund loans which undermine the earned income tax credit, and payday loans under the predatory lending rubric. Cre describes the use of minority celebrities, churches, events, and owners as means of marketing these products in communities of color. In addition to documenting the success of such techniques and the psychology that underlies it, the article analyzes the (somewhat limited) litigation record in this area. Lawsuits claiming discrimination (as opposed to consumer protection violations) have been limited to mortgage lending (typically under the Fair Housing Act), and plaintiff’s have had some limited success in efforts to establish disparate impact and even intentional discrimination. In preference to litigation, Cre joins Elizabeth Warren’s call for the creation of a CFPA and discusses proposals to do so.

Book Review

Jeffrey S Sutton, A Review of Richard A. Posner, How Judge’s Think (2008), 108 MICH. L. REV. 859 (2010).

In this rich review, Judge Sutton takes sharp but respectful issue with Judge Posner’s characterization of judicial decision-making as “politics by another name,” contesting both normative and descriptive claims in the book and arguing that even if some of the differences between Posner and the book’s critics are semantic, that those words matter. Jeff describes Posner’s characterization of judging as profoundly an act of political policy preferences as “strong words, bound to provoke a defensive reaction.” While the review suggests that some of Posner’s language is mere hyperbole, Judge Sutton argues that considering the entire universe of judicial decision-making Posner is not only wrong, but also potentially harmful to judicial legitimacy.

Moving from the descriptive to the normative, the review is also skeptical of Posner’s advocacy of “constrained pragmatism” as a superior third way between the polar approaches towards judicial decision-making championed by Justices Scalia and Breyer. He wonders when, if ever, Posner’s articulated approach forces a judge “faced with a difficult interpretive issue, to vote against his policy preferences.” Rather than merely critiquing Posner’s thesis, the review also offers its own take on how judges decide cases. Judge Sutton argues that judges fall along a spectrum in how constrained they feel by law or precedent from separating their reaction to the facts from their vote, but that very few judges fall at the extremes of that spectrum in either direction.

The review describes a number of substantial external and internal constraints on judicial decision-making and argues that the extent of their impact is what makes the difference in judges. The external factors include the judge’s place in the judicial hierarchy, the dynamics of multi-member courts, issues of deference, the sheer size and diversity of the docket and the textual clarity of the legal source. Internal constraints include the judicial oath, the need to write a justificatory opinion and, finally, temperament. Judge Sutton gives careful consideration to each of these constraints and their effect on judicial decision-making.

Book Supplement

Larry T. Garvin (w/the late E. Allan Farnsworth), FARNSWORTH ON CONTRACTS 2010-12 CUMULATIVE SUPPLEMENT (Walters Kluwer 2010).

This latest version of the supplement to the famous three volume contracts treatise now itself runs over 600 pages, about one quarter larger than last year. It includes analysis of some recent changes regarding arbitration, citations to opinions by the newest Supreme Court Justices (sitting in the ‘09-‘10 term), literally thousands of cases and thorough treatment of the secondary literature. In short, the lucid yet comprehensive coverage you would expect from Larry, as you did from his late coauthor, Professor Farnsworth.


Martha  Chamallas

Martha Chamallas, Civil Rights and Civil Wrongs, in Andrew F. Popper, MATERIALS ON TORT REFORM (West 2010).

This brief essay is part of a series in a new law textbook on tort reform. Martha’s is one of seven essays in a section entitled “Tort Reform: Justice Delayed, Denied, or Enhanced.” Martha explains that, although “tort reform” is now used to connote support for “limit[ing] liability for defendants and reduc[ing] the amount or type of damages plaintiff’s receive,” prior to the 1980's tort reform often eased recovery for injured parties (e.g., comparative negligence) or offered advantages to all sides (e.g., no fault compensation for automobile accidents or workers compensation) by simplifying liability findings in return for limiting damages. The essay contends that the connection between tort litigation and civil rights is underappreciated and provides examples of some of the ways in which tort litigation is civil rights litigation (as anyone familiar with Martha’s work will understand) and examples of ways tort litigation should be informed and shaped by the connection. This is the tort reform the essay calls for.

Deborah Jones Merritt, Piercing the Brilliant Veil: Two Stories of American Racism, 85 INDIANA L.J. 1255 (2010).

Debby was asked to submit this essay to comment on an empirical study by Professor Deirdre M. Bowen published in the same issue of the Indiana Law Journal. Debby describes Professor Bowen’s study as “demonstrat[ing] that black and Hispanic students experience more self-doubt, stigma, and hostility when attending colleges in states that have banned affirmative action than in states that support those programs.” Debby notes the importance of this finding and its relevance to policy debates, “[w]hatver the mechanism producing this outcome.” Although Professor Bowen theorizes plausibly that the result may be tied to racial isolation of minority students in anti-affirmative action states, Debby finds the complexity of active social systems an important point to recall. Thus, regardless of the cause, “[t]he reactions of real minority students attending real colleges are at least as informative as a priori assumptions about how different policies ‘must’ affect students.” More broadly, Debby notes the relevance of the result to the “two stories of American racism” that she eloquently describes. In the first, we are in a post-racial world of equal opportunity with integrated professions and elite institutions (including the presidency), where racism is widely abhorred and what remains is “isolated, sporadic and anachronistic.” In the second story, poverty, unemployment, and lack of educational opportunity are still the disproportional lot of Blacks and Hispanics because of “structural, systematic . . . white privilege” and persistent racial bias. Debby describes how our choice of story affects both our personal interactions and our social policy and explains how Professor Bowen’s result importantly supports the second story.