Faculty Scholarship Digest

February 2011

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, Gaining Some Perspectives in Tort Law: A New Take on Third-Party Criminal Attack Cases, 4 LEWIS & CLARK L. REV. 1351 (2010).

In this article, Martha brings a continuing area of her research focus, the duty of reasonable care in torts, to a new category of cases: claims of liability against A by V for D’s attack on V— for example, a tenant’s suit against a landlord for an attack that occurred on the unsecured premises. As usual, Martha’s careful analysis leaves the reader with a new perspective and understanding of existing doctrine and its consequences. Martha begins by reviewing the new (2005) Restatement Third of Torts’ treatment of the “reasonable person” standard. While the language has changed from reasonable man to reasonable person, Martha documents the myriad ways in which tort law has maintained the “objective” “universal” view of reasonableness, resisting the large body of scholarship attacking the legitimacy of the concept and the movement of other areas of law toward more openly accounting for perspective.

Yet, although perspectives of race and gender have not found their way into negligence doctrine, Martha describes how, in third-party criminal attack cases, courts have made “determinations of duty and reasonable care that frequently bear on the gender, race or economic status of the victims.” Most especially in sexual attack cases, “some courts have imposed a duty and have begun to articulate a norm of reasonable care that takes into account women’s disproportionate vulnerability to rape and sexual assault, requiring defendants to make their premises equally safe for men and women.” The terrain is nuanced and unsettled, with cases showing more appreciation of perspective with regard to gender than to race or low-income status, and Martha provides a careful and enlightening critical description of that terrain, thereby providing a new understanding.

Steven F. Huefner, What Can the United States Learn from Abroad about Resolving Disputed Elections, 13 N.Y.U. J. OF LEGIS. & PUB. POL. 523 (2010).

In this article, Steve conducts a comparative analysis of the means democracies around the world use to resolve contested elections. This is an understudied topic, and the reason may be the difficulty of the task Steve admirably takes up. The article takes us from Afghanistan, to Mexico, to Ukraine, and on and on. Steve carefully describes and groups the different approaches to election disputes, particularly presidential elections, and subjects them to analysis of trends of adoption and record of success (or failure).

Steve groups the different kinds of election dispute resolution institutions into four basic categories: “(1) traditional courts, including constitutional courts, (2) legislatures and parliaments, (3) special electoral tribunals, and (4) ad hoc bodies.” The article makes a number of observations about these different approaches. The American model of relying on traditional courts is popular worldwide, as part and parcel of the export of “American-style democracy.” Steve observes, however, that countries following this model may fail to appreciate the political influence felt even by independent judiciaries (as, Steve notes, Ned Foley has shown our framers did), with the result that such adopters “may be perpetuating a design flaw of American democracy.” The article sees much promise in special electoral tribunals, noting their success in emerging democracies, and considers the lessons for U.S. electoral reform.

Peter M. Shane, Empowering the Collaborative Citizen in the Administrative State: A Case Study of the Federal Communication Commission, 65 UNIV. MIAMI L. REV. 483 (2011).

In 2009, Peter served as an unpaid Visiting Scholar with the Federal Communications Commission in the early days of the Obama administration and FCC Chairman Julius Genachowski and was able to observe first-hand the drive at agency reform “to provide openness and transparency,” which meant using new media to pursue these goals by better communicating the FCC’s story, by better conveying and sharing the trove of data the FCC has about “the nation’s information and communication infrastructure,” and by “infus[ing] the agency with new voices, perspectives, and information coming from the public at large.” Peter’s deep expertise in using cyberspace to advance democratic objectives made him an ideal participant/observer for using the FCC’s efforts as a case study, which resulted in this article.

The article details some remarkable achievements and progress on all three fronts by the FCC but also details the daunting impediments to success that had a significant impact even in the context of a President and agency head likely as committed as any to these goals. The article describes these challenges of cost, complexity, and law, each of which provided consistent impediments, with specific examples that give depth to Peter’s conclusion that while ‘[o[penness and transparency sound like easy things to achieve, collaboration perhaps only slightly more complex,” in fact “government always entails management and managing open, participatory government is in some ways more complex and more costly than doing business less democratically,” even in the internet age. Thus, accomplishing these goals will require consistent and persistent dedication and investment. The article’s final section includes some thoughts on the conditions that might produce such long-term efforts.

Book Chapters

James J. Brudney, The Story of Pepper v. Hart: Examining Legislative History Across the Pond, in Eskridge et al. eds, STATUTORY INTERPRETATIONS STORIES (Foundation 2011).

Jim is the latest Moritz faculty member to have an entry in the outstanding and engrossing Foundation Press “stories” series, which, subject by subject, have leading scholars tell the story of landmark cases in the field, which are then artfully used as a jumping off point for further information. Jim’s case is a British one, Pepper v. Hart, in which the Law Lords overruled more than 200 years of precedent by allowing British courts to rely on the official parliamentary record of committee proceedings and floor debates to interpret statutes. Previously, consideration of such legislative history materials had been barred.

Jim recounts the constitutional and pragmatic history that had supported this rule and then tells the story behind Pepper, which focused on the application of a British tax statute—intended to eliminate loopholes for upper income executives by the provision of company cars and subsidized lunches—to a children’s tuition benefit provided to teachers (and, presumptively, to discount tickets provided to rail and airline employees). Such application was discussed at length in Parliament, with the government minister who introduced the bill repeatedly and specifically assuring Parliament that the tax would not have the precise impact the government was now urging. In the face of finding for the government unless the practice of barring consideration of this legislative history was removed, the Lords held that definitive legislative history could be consulted for ambiguous statutes. The chapter is full of some of the personal history of the parties, but also offers a rich understanding of the reaction to the case (British academics hated in; courts liked it at first, then less so), and draws interesting comparisons between the British and U.S. experiences. The U.S. Supreme Court continues to use legislative history more than its British counterparts, and Jim notes important differences in the legislative process and the executive’s role in it to justify the contrasting approaches. The chapter also uses the history to conclude that the argument for “excluding legislative history altogether . . . is moribund,” and that the “British debate over weight rather than admissibility is far more productive than the indeterminate disagreements that for twenty-five years have characterized federal judicial exchanges” in the United States.


John Quigley, Self-Determination in the Palestine Context, in Susan M. Akram et. al. eds., INTERNATIONAL LAW AND THE ISRAELI-PALESTINIAN CONFLICT, A RIGHTS BASE APPROACH TO MIDDLE EAST PEACE(Routledge 2011).

For decades Fatah was the dominant voice in the Palestinian political movement and long argued “that the predominantly Arab population of Palestine was entitled to exercise self-determination there.” By 1993, however, John explains that the PLO effectively ceded to Israel the right to exercise sovereignty over much of “historic Palestine” that now is Israel in return for the establishment of a Palestinian state in the Gaza Strip and the West Bank. However, when Hamas gained control of the Palestinian Authority in 2006, this “‘historic compromise’ was thrown into question. . . . Hamas held to Fatah’s original position: [claiming] the territory of historic Palestine.” That shift, John explains, has brought a critical new (or renewed) importance to the question of self-determination under international law. John’s chapter examines this claim to a right of self-determination under international law and its relation to the separate question of a right of repatriation.

John’s review of history and international law leads him to conclude that there is a right of self-determination, but he notes that “recognition of a right of self-determination led to confusion over the identity of the territory in which the right was to be exercised.” Moreover, if self-determination is limited to a smaller area than originally claimed (i.e., to only the Gaza Strip and the West Bank), would that also limit the right of repatriation to the same territory? The chapter argues that repatriation is an individual right, while self-determination is a collective one. Therefore, John concludes, the “establishment of a Palestinian state in the West Bank and Gaza Strip in no way deprives displaced Palestinian Arabs of their right to be repatriated by Israel and to be accorded the nationality of Israel.” A final section of the chapter examines the complexity of the process surrounding the exercise of self-determination in this context.