Faculty Scholarship Digest

April 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.


Amy J. Cohen, Governance Legalism: Hayek and Sabel on Reason and Rules, Organization and Law, 2010 WISC. L. REV. 357 (2010).

In this contribution to a symposium on new governance and the transformation of law, Amy brings an important perspective to new governance by drawing sharp contrasts between new governance and neoliberalism. New governance is a movement to pass power from the state to “non-state actors to generate the rules and norms” that will govern them. Some scholars have responded that the new governance approach will not redistribute political power but instead will track the neoliberal effort to replace state control with market control. Amy demonstrates that, properly understood, new governance provides significant law-seeking reforms, so that new governance in fact “holds far more in common with liberal than with neoliberal legalism.”

Amy analyzes the “new-governance-replaces-state-control-with-market-control” critique by revisiting the critique of a founder of new governance (Charles Sabel) of the classic liberal Friedrich Hayek, and contrasting that with Hayek’s own writings. For example, the article recounts how both Hayek and Sabel see severe limits to government knowledge that make central solution of social problems extremely difficult. Yet Hayek urges that because individuals are limited in their abilities to generate explicit formulations about their purposes, capabilities, and skills, government should be limited to defining permissible purposes, allowing people to create “self-generated social ends.” In very sharp contrast, new governance believes people can, indeed must, make their knowledge explicit, through a process of practical deliberation, so that government, rather than simply throwing up its hands, must require accountability, transparency and deliberation at the local level. Amy demonstrates that Hayek and Sabel have analogous agreements and divergence about the nature and ability of firms, with the result that they differ fundamentally about the ability of individuals and groups to “‘become practical lawmakers, accountable to each other for their choices,’” (Sabel, yes, Hayek no). Through this and other comparisons, Amy frames new governance as in fact similar to liberal legalism, believing that “through law,” albeit law in the form of “ordinary people as practical lawmakers,” society “can regulate the affirmative ways we live together and the affirmative obligations the state assumes for our well-being.”

David A. Goldberger

David Goldberger (w/Neil Jarman), Note on the Law on Demonstrations of the Republic of Albania, OSCE/OHDIR (2011).

David serves as an expert for the Office of Democratic Institutions and Human Rights (OHDIR), and this piece is a report on rights of assembly in Albania, written to assist the OHDIR in its observation of 2011 Albanian elections. In general, the article approves of Albanian law on the subject, noting its recognition of the importance of freedom of assembly to political freedom and its provision of generally broad protections, as well as that for the most part Albanian law reflects the language of the relevant provision of the European Convention on Human Rights. David does criticize a requirement of “[that] a notice shall specifically identify all speakers.”

john a. powell (w/Caitlin Watt), Corporate Prerogative, Race, and Identity Under the Fourteenth Amendment, 32 CARDOZO L. REV. 885 (2011).

This article uses two recent Supreme Court cases, Parents Involved and Citizens United, as a jumping off point for analyzing the treatment of corporations and racial minorities under the Fourteenth Amendment as related issues. The article traces a hostility to both corporate and civil rights in the pre-civil war Taney Court and describes that Court’s compromise on the former to preserve states rights on the latter (and the resultant Dred Scott decision) as an “accommodation . . . [that] would resurface at the end of Reconstruction.” The article then describes the end of Reconstruction as an economic issue as much as a racial one, “a recommitment to the protection of property under the federal government and the control of non-whites . . . under the States.” The article examines the interplay of corporate economic issues and race over the past century in a number of contexts and notes the Court’s role by describing Parents Involved as “limit[ing] the ability of the public sphere to remedy or otherwise reshape the racial makeup of public schools” and Citizens United as a determination “that the private sphere need not be regulated by the government even when it is seeking to affect the government.” The article disclaims an anti-market or anti-corporation view. To the authors, “the real goat in this story is not the corporation, but the Court.” Their point here is that Lochner and Plessy were not unrelated and that legal structures surrounding race and economic regulation have to be understood as part of the same discussion, rather than separate spheres.


Ruth Colker (w/Julie K. Waterstone), SPECIAL EDUCATION ADVOCACY (LexisNexis 2011).

This book is the result of a collaborative effort led by Ruth to create a set of materials designed to teach advocacy on behalf of children in the special education context. Noting a need for such materials, Ruth approached clinicians teaching in the field about participating in developing a book along those lines. She received an overwhelming response, and this book is the result. Ruth and her co-author edited all the chapters, and Ruth authored two chapters herself, but eight other individuals joined as authors of discrete chapters. As noted, the book takes an advocacy perspective in the hope of teaching the keys “to successful advocacy on behalf of children with special needs” with an emphasis on “the everyday tools” of such advocacy: “statutes, regulations and general material from educational psychology.” The result is a how-to book that is suitable for clinical instruction and for practitioners.

Chapters cover such matters as how to start a case, IEP’s, early intervention services, school discipline, remedies and interaction with the delinquency system. It is a truly impressive integrated compilation of valuable material, gathered ingeniously from truly expert sources in the teaching and practice of such advocacy. Ruth’s chapters include a brief history of the treatment of special needs children in the educational system, from the “no education at all” model of one hundred years ago, to the establishment of today’s basic framework by Congressional action in 1974, through the subsequent Amendments that have left an IDEA that provides substantial protections, albeit through complicated procedures. Ruth’s other solely authored chapter covers educational evaluations and assessments, which are crucial to IDEA compliance so that understanding “how to read and interpret test scores” and discuss them in the context of different categories of disabilities under the IDEA (and the ADA and the Rehabilitation Act) are an important piece of special education representation.


Peter M. Shane (w/Liz Gjestvang), Information Stories, Sustaining Democracy in the Digital Age (The Ohio State University, 2010).

Information Stories is a collection of short digital narratives relating the importance of information, and local information in particular, to a community, and the perils (e.g., decline of newspapers and other local organizations) and opportunities (e.g., the internet and social networking) presented in a digital age. There are a dozen diverse stories from ordinary people (with self-narration and wonderful related video images) that range from identifying and publicizing local health crises, to responding to a local bridge collapse. The different means employed for promoting information and their effect on community activism shown in these stories are powerfully and vividly demonstrated by these storytellers. The stories presented in this innovative format express the meaning and force o f concepts like “information flow” and “e-democracy” in a way that the written word cannot. Peter also provides an introduction and conclusion that tie the stories together. The stories can be viewed, separately or collectively, through the project’s website: informationstories.org.