Faculty Scholarship Digest

December 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.


Edward B. Foley, The Founders’ Bush v. Gore: The 1792 Election Dispute and Its Continuing Relevance, 44 IND. L. REV. 23 (2010).

In 2008, Ned delivered the Ohio State University’s Distinguished Lecture, which was the precursor to this article. The article tells the fascinating story of this country’s first great electoral dispute—the 1792 battle over the New York gubernatorial outcome—while drawing parallels with the greatest election dispute of our time and lessons for the future. The issue in 1792 was whether ballots from Otsego County, which likely would have given the election to the Federalist John Jay, should be counted when (as a result of the decision of a partisan federalist official), the ballots had not been delivered to the Secretary of State in accordance with statutory procedures. Without those ballots, the election would go to the Democratic-Republican incumbent, George Clinton. The dispute was decided by a commission appointed by the state legislature that, after hearing arguments from the leading judicial figures of the day, decided the case 7-4 for Clinton, voting completely, or almost completely, along partisan lines.

Ned relates the story in compelling fashion and features several points of particular salience. First, “each side quickly staked out opposing positions on what would become the basic jurisprudential debate in vote-counting disputes throughout the history of election law in the United States,” to wit, strict enforcement of electoral rules “in order to protect the integrity of the electoral process” vs. lenient enforcement “to safeguard the right to vote.” Ned carefully demonstrates how little the nature of this core debate has changed over 200 years and suggests that, in order to move forward, a mechanism to explain when one value should trump the other must be developed, and he suggests that a just-initiated American Law Institute project may be a path to doing so. The article also examines the suggestion of James Kent, in connection with the 1792 dispute, that the deciding tribunal should be “equally biased,” i.e., balanced in its partisan make-up (as opposed to the 7-4 or 8-3 commission actually appointed), which Ned thinks may be one way forward. Secondly, Ned emphasizes how poorly equipped the framers themselves were to handle disputes about the electoral process. The framers were “entirely unprepared for the partisan influence in a disputed . . . election,” so there is no original approach or understanding; partisanship as it developed, and particularly its relevance to democratic elections, was utterly unanticipated. Thus, Ned concludes, in finding a solution, “in build[ing] for the future what the framers were unable to build for us,” we would be enhancing, rather than undermining “the project of constitutional democracy that they began for us.”

Dale Arthur Oesterle, The Collapse of Fannie Mae and Freddie Mac: Victims or Villains?, 5 ENTREPRENEURIAL BUS. L. J. 733 (2010).

This article traces the history of the Federal National Mortgage Association (Fannie Mae) and its little brother the Federal Home Loan Mortgage Corporation (Freddie Mac), with an eye toward assessing what went wrong, their role in the housing meltdown, what should be done now, and drawing lessons for other instances of government regulation. The article tells the story of an entity with modest beginnings that, through a series of regulatory shifts, endured mission creep and power expansion, as it cruised along a border between not technically being government guaranteed (and hence not subjected to tighter limitations) and being assumed by the market to have government backing (and hence receive significant market advantages in comparison to its private competitors)—not just too big to fail, but too full-faith and credited to fail. The article is critical of both the limited oversight along the way (the regulatory oversight agency was subject to capture by Fannie) and to the Treasury Department’s decisions about whom to save and whom to allow to suffer crippling losses in the course of the ultimate trillion dollar government takeover.

On the question whether Freddie and Fannie were the victim or a primary cause of the mortgage crisis that triggered the recession, the article concludes that “Fannie and Freddie were the villains.” Dale traces the manner in which Community Reinvestment Act loans with significantly higher risk to support affordable housing targets infected all underwriting standards, ultimately lowering standards for most home lending, not just community reinvestment act loans. The article points to the combination of political and economic forces that brought this about, ultimately describing those problems as endemic to government-sponsored entities, such as Fannie Mae. Therefore, Dale concludes, the best long term resolution is to take away any role for Fannie and Freddie in the secondary mortgage market and eliminate any hint of government guarantees of its obligations; in the article’s words “return to 1938, with a caveat.” Dale argues that experience in other countries demonstrates that United States home ownership rates can be achieved without government guarantees, and the true beneficiaries of such guarantees “are Wall Street financiers who benefit from the trading activity by under-priced asset insurance.” Dale suggests the pathway that could be followed for this transition and argues that in future efforts to subsidize distressed neighborhoods or low-income wage earners, transparency and caps are essential, so that the subsidy effects do not leak out and affect risk decisions in the larger market.

Daniel P. Tokaji, Lowenstein Contra Lowenstein: Conflicts of Interest in Election Administration, 9 ELECTION L. J. 421 (2010).

This article is part of a festschrift celebrating the work of Professor Daniel Lowenstein in the field of Election Law. Dan has some very fundamental disagreements with Professor Lowenstein and fleshes out some of those disagreements in this piece, but with an attitude of profound respect and scrupulous fairness to Professor Lowenstein’s positions. Readers of this article are treated to a careful explication of leading, opposing positions on several election law issues. Professor Lowenstein, “[a]s much as any other scholar in the field, . . . has voiced suspicion of judicial intervention in the conduct of elections,” criticizing judicial intervention from the redistricting context to election administration. Dan, in contrast, believes that fairness values more often require judicial intervention in election matters as the best alternative. The article concisely and clearly sets out arguments on both sides of this issue, with a foray into interpretation of Bush v. Gore, where Lowenstein and Tokaji also fundamentally disagree for reasons that Dan sounds in methodological differences in reading cases, most importantly Dan’s view that we cannot “assess the best interpretation of a case (or a line of cases) without a background conception of the proper role of courts in the democratic process.”

The article then turns to its primary focus: Dan’s view (contrary to Lowenstein) that the federal judiciary is the institution best positioned to advance fair election administration and that it should act accordingly—a view that Dan has previously supported and stands perhaps as the leading current advocate. In keeping with the spirit of the festschrift, Dan uses Lowenstein’s own work from earlier in Lowenstein’s career regarding campaign finance to support the Tokaji view here. In a 1989 article regarding campaign finance reform, Lowenstein closely analyzed campaign donations and argued that their regulation required an acceptance that they represent a fundamental conflict of interest. After describing Lowenstein’s argument, Dan imports it into the election administration context to contend that conflicts of interest there prevent exclusive reliance on legislative (i.e., nonjudicial) regulation. After careful application of the framework, Dan discusses some of the pathways for judicial intervention that are likely to make judicial oversight of election administration most successful.

Daniel P. Tokaji, Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws, 44 INDIANA L. REV. 113 (2010).

In this article Dan returns to a theme of his recent scholarship for which he is a leading proponent among election law scholars: the federal judiciary is needed to fill an active role in election administration. In this article, Dan focuses on a significant barrier to judicial oversight of elections: Supreme Court doctrine limiting the ability of private parties to sue to enforce federal statutes. Dan begins by discussing “the precipitating causes of and the justifications for the judiciary’s more active involvement in overseeing election[s].” This part of the article contains an instructive comparative section which examines the systems of election administration around the world that have accompanied the proliferation of democracy, and notes the peculiar combination of decentralization and partisanship that characterizes the American approach. In particular, Dan compares the United States to the very different archetypical systems of India and France “[t]o understand the functional role that federal courts can and should play in the United States.”

The article then turns to its main concern, the power of federal courts to play their role of delineating and enforcing critical federal election laws (most especially HAVA) in law suits brought by private parties. Private rights of action can be implied directly into federal statutes and through 42 U.S.C. § 1983, though over the past thirty-five years the Supreme Court has greatly restricted such actions. For federal statutes, Dan explains, doctrine now focuses on “whether the statutory text shows a congressional intent to create both an individual right and a private remedy.” For suits under § 1983, which allows suits for those whose federal rights have been violated by those acting under color of state law, the Court now essentially requires the absence of other significant important enforcement schemes and that the statute actually confer rights to the putative plaintiff. Dan critically examines the case law regarding the impact of efforts to provide uniform and effective enforcement of three major federal laws relating to election administration, providing both a clear descriptive snapshot and a forcefully argued conclusion about where lower court decisions have veered from Supreme Court direction. While there are some provisions enforceable through private rights of action under existing doctrine, Dan concludes that much of federal law, including crucial parts of HAVA, are not. In a last section, the article argues for a more generous approach to private rights of action in the federal election statute context, because of the collective interest such statutes protect and the unique and overriding need for a neutral partially centralized arbiter (i.e., the federal courts) in this area. Dan suggests ways in which doctrine could reasonably evolve and responds to some basic potential objections to his approach.