Faculty Scholarship Digest

November 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.


Cinnamon Piñon Carlarne

 Cinnamon P. Carlarne, Arctic Dreams and Geoengineering Wishes: The Collateral Damage of Climate Change, 49 Colum. J. Transnational L.  602 (2011).

This article closely examines two “collateral” problems that have arisen as a result of climate change from a governance perspective—specifically, the “fundamental gaps in existing systems of global governance” these new problems expose—and offer insight into the substantive and procedural ways forward in starting to address those gaps. In doing so, the article makes important contributions related to environmental law, international law, and the governance literature in a single package. Each of these is discussed in great detail.

The first problem is the area of the Arctic Ocean that is not covered by current international governance agreements. Climate change is rapidly melting sea ice, which will provide potential “new access to deep sea resources and new shipping routes, creating a series of new governance challenges related to maritime access, ecosystem management, the well-being of indigenous peoples and safety and environmental issues surrounding the growth of the Arctic tourism industry.” The article reviews the history of Arctic governance, identifies the gaps for the climate-change-affected world and analyzes both ideal and realistic paths forward (unfortunately, as is so often the case, the two are not the same), with the former involving a comprehensive new international treaty and the latter a stewardship regime built on existing structures. The second problem is the area of geoengineering which, unlike the incomplete regime of the Arctic Ocean, faces “for all practical purposes, the complete absence of a governance regime.” While this absence presents some greater challenges (incremental governance solutions are not available) the article also identifies consequent opportunities for multilateral consideration of “rights and responsibilities in respect to management of the global commons,” and suggests some principles that might emerge as a result of such consideration.

Amy J. Cohen, The Family, the Market, and ADR, Disp. Res. 91.

This article is a part of a symposium addressing a heated debate surrounding ADR for over two decades: whether ADR processes, by privatizing state functions, undermine the rule of law. Rather than taking a side in that debate, Amy suggests that this familiar public/private argument (“the claim that ADR represents a privatization of lawmaking and . . . a shift from state to market forms of regulation and control”) oversimplifies the issues surrounding the rise of ADR by ignoring what she calls the “family/market” distinction. In fact, the article details, ADR not only “brings economic rationalities associated with the market to social domains,” it also brings “social rationalities associated with the family to economic domains,” so that “nearly all contractual exchanges” are understood as “intensely social interactions driven by emotion, empathy, trust, solidarity, and shame.”

The article traces and documents the rise of this ADR effect of seeing the social elements in economic affairs that were previously viewed as market determined. As Amy puts it, ADR redescribes the market “as a place of community, social network, and identity, not simply alienation, selfishness and greed,” so that efficiency and social connection become compatible rather than competing forces. Yet this may or may not be a good thing. Amy notes that the “distributional effects of the new social configurations are at best unclear.” While ADR successfully collapses distinctions—public vs. private; family vs. market—to integrate opposing positions, the key question, Amy contends, are the distributional effects of the resulting reordering. Attention must be paid to distribution and power.

Sarah Rudolph Cole

Sarah Rudolph Cole, On Babies and Bathwater: The Arbitration Fairness Act and the Supreme Court’s Recent Arbitration Jurisprudence, 48 48 Hou. L. Rev. 457 (2011).

For the past decade, some federal legislators have attempted, without success, to amend the Federal Arbitration Act to restrict employers’ ability to bind employees to predispute arbitration agreements and, more recently, to bind consumers to arbitration for dispute settlement with businesses, such as financial or wireless service providers. The latest iteration of these efforts, the Arbitration Fairness Act, would largely eliminate predispute arbitration agreements in many contexts. While such legislation has languished, the U.S. Supreme Court has simultaneously been expanding arbitration’s reach. In this article Sarah contends that both sides of this argument are deeply flawed and proposes a middle ground that, she argues, will best represent the interests of consumers and employees.

Sarah, as she has done in previous work, gathers empirical evidence to support the view that in fact consumers, particularly those with substantial claims, receive similar or better results in arbitration than they would through court proceedings, at lower cost. Therefore, she argues, current efforts to amend the Arbitration Act to prohibit such resolutions are not a good idea. At the same time, however, Sarah notes that businesses also prefer arbitration agreements in order to avoid class actions. Arbitration is now a particular boon to such efforts because the Supreme Court, as Sarah details, has in the past two years essentially shut the door on class arbitration procedures. As a result, Sarah notes, “remedies for consumers with low value claims will no longer be available through the judicial system,” since it makes no sense to bring, say, a $30 claim even in arbitration, where the cost of obtaining the recovery will exceed the recovery. The article proposes a revised, less radical, version of the Arbitration Fairness Act that would preserve the general force of consumer arbitration provisions, but restore the possibility of class arbitration for low value claims.

Edward B. Foley, The Lake Wobegone Recount: Minnesota’s Disputed 2008 U.S. Senate Election, 48 10 Election L.J. 129 (2011).

This is the first part of a two-part article in the nation’s leading journal in the election law field. This part closely examines the Minnesota Senate election of 2008 to learn lessons for disputed elections, both avoiding and resolving them. And there is much to be learned. This was a very close election. The incumbent Senator’s initial margin of 215 votes was less than one-hundredth of one percent of the 2.9 million votes cast. The article carefully describes the procedural and substantive issues in the recount, offering particular praise for the bipartisan (“tripartisan” with the independent included) makeup of the decision-making panel. The recount resulted in a 225 vote victory for the challenger, Al Franken, reversing the initial result two months after election day.

What followed was a court challenge (three months in the trial court; two and a half months on appeal) that eventually affirmed the recount. The central issue of dispute was the rejection in the recount of absentee ballots that had been rejected in the original count. Minnesota law set a high bar for recounts to overrule the initial decision to reject, and so in the court challenge both the merits of the decision under the law and the validity of the law itself were subject to challenge. Ned carefully unspools these different threads, providing broader lessons for rules for absentee ballots, for assessing their validity, for resolving election disputes generally, and about the meaning of Bush v. Gore. This tour de force provides a rich, permanent, and insightful record of the recount for future consideration. Ned concludes that the recount can be judged not only by the substantive and procedural judgments, but also by the political response to the outcome, so that the losing Senator’s “embrace of the law—and the law’s institutions—which handed him his defeat” is one the greatest badges of its success, although the time it took to reach was likely its greatest problem.

Edward B. Foley, How Fair Can Be Faster: The Lessons of Coleman v. Franken, 10 Election L.J. 187 (2011).

This is the second part of a two-part article in the nation’s leading journal in the election law field. Part one provided a detailed record and analysis of the contested Minnesota Senate election of 2008, which took more than seven months to resolve, though it was eventually resolved in a process that was widely accepted as legitimate and fair. One purpose of Part I was to provide a record for scholars to use in further research, and Part II is a brilliant first example.

As Ned describes, the resolution was both a great success (deemed legitimate and fair by all) and, had it been a presidential election instead, potentially a great failure (a result more than a half-year later, problematic for Senate, would have been useless in a presidential context). The burden of this article is to identify the elements of the process that could be used and accelerated to achieve fairness and legitimacy in the compressed time frame necessary in a presidential selection. The article offers a nuanced and scholarly discussion and proposes a model for how to go about it. That process includes (i) Congress amending the law to give the states until early January instead of until mid-December for their Presidential Electors to vote, (ii) conducting recounting and recanvassing simultaneously rather than seriatim, (iii) privileging “a structurally fair tribunal that is evenly balanced and impartial to both sides” as the decision-maker over the importance of the substantive debate between “strict construction” of vote procedures vs. voter intent, and (iv) immunity from federal review if the state uses such a balanced and impartial tribunal.


John Quigley, Britain’s Secret Re-Assessment of the Balfour Declaration. The Perfidy of Albion, 48 13 J. Hist. Int'l. 249 (2011).

In 1917, the British Government issued the Balfour Declaration which stated that Britain would “use their best endeavors to facilitate” “the establishment in Palestine of a national home for Jewish people,” but also stating that “nothing shall be done which may prejudice the civil and religious rights of the existing non-Jewish communities in Palestine.” Following the conclusion of World War I, oversight of the territories taken from the central powers, including territories in the Arab world that had been controlled by Turkey, would be divided up among countries that reported to an oversight agency within the League of Nations called the Permanent Mandates Commission. Palestine was assigned to Britain, with the understanding that part of Britain’s role would be the development of a “Jewish national home,” consistent with the Balfour declaration.

This article carefully traces the history of the early years of that British oversight, contrasting the public statements and reports Britain made to the Permanent Mandates Commission with the substance of Britain’s internal deliberations. In particular, the article focuses on a largely overlooked “confidential re-assessment in 1923 of the advisability of promoting a Jewish national home.” (The re-assessment was made public in the 1970's, but has “largely escaped the attention of lawyers and historians” studying these matters). Conservative Prime Minister Stanley Baldwin appointed a cabinet level committee whose secret report recognized a tension between the dual goals of establishing a Jewish home and the “maintenance of Arab rights,” though the committee nonetheless recommended continuation of existing policy. The article describes the internal machinations and contrasts them with the external affirmations of the policy that resulted in continuing approval from the Permanent Mandates Commission. The article concludes that Britain’s lack of candor “set Palestine on a course of collision between the Jews and the Arabs.”

Peter M. Shane, The Obama Administration and the Prospects for a Democratic Presidency in a Post-9/11 World, 56 N.Y.L. School L. Rev. 27 (2011).

This article, part of an issue examining civil liberties ten years after the September 11 terrorist attacks, examines the Obama administration’s attitude toward executive power in comparison to the Bush administration. Peter has written books and many articles on presidential power and has severely criticized the “expansive category of executive authority largely immune to legislative control or judicial review” espoused by the Bush administration. In this article, Peter contends that while the Obama administration has in practice stepped back from the forceful “presidentialism” of the Bush administration in important ways, it has not articulated an opposing vision, instead making a series of “pragmatic” choices while leaving its vision of the power of the presidency obscure.

The article traces the Obama administration’s adjustments to Bush administration policy in two critical areas of presidential power: the treatment of “enemy combatants” and government secrecy. In each of these areas, the Obama administration has reversed keystone positions of the Bush administration that had relied on extremely expansive assertions of presidential power. Yet in rejecting those positions, the Obama administration has avoided describing them as beyond the scope of presidential power, nor has it explained its rationale when it has arguably pushed the boundaries of power itself, for example in its assaults on Libya to create a no-fly zone. The article identifies three reasons for this perceived shortcoming: (i) reluctance to suggest restraints on one’s own power; (ii) the potential political cost of a genuine effort to “reinvigorate the rule of law in the national security context;” and (iii) insularity — it may seem to the folks within the administration that they have been vigorous advocates for the rule of law in comparison to the Bush administration. Yet, Peter argues, it is critically important that the Obama administration articulate its vision of separation-of-powers and rule of law and expressly test its doctrines against its standards in order for a counter-narrative to the imperial presidency to endure.

Book Chapter

Steven M. Davidoff (w/Anil K. Makhajia & Rajesh P. Narayanan), Fairness Opinions in M&A’s, in H. Kent Baker & Halil Kiymacz eds., The Art of Capital Restructuring, Creating Shareholder Value Through Mergers and Acquisitions (Wiley & Sons 2011).

This chapter, which results from a collaboration between scholars at law and business schools, reviews the curious case of “fairness opinions.” A fairness opinion is a report from a financial advisor to the board of a company involved in proposed corporate control transaction. The financial advisor is typically an investment bank already involved in the merger in question, and the fairness opinion states that the price being offered in a proposed corporate merger is within the range of prices that would be considered “financially fair.” These opinions are not appraisals, but they do typically contain underlying valuation analyses of the company being acquired, though there are no uniform standards or practices governing these valuations. Fairness opinions were originally introduced as an investment banking product, but a 1985 Delaware Supreme Court finding a board had breached its duty by approving the acquisition of the company it governed without making an “informed business judgment,” quickly resulted in fairness opinions, which can bring multimillion dollar fees to the investment banks that provide them, becoming “a de facto if not legal requirement . . . for targets of a corporate control transaction.”

The legal literature has been critical of fairness opinions for the subjectivity involved in choosing the type and technique of valuation analysis involved as well as for the conflicts of interest often involved for the investment banks preparing them. Some have concluded that they amount simply to a tax (paid to investment banks) on corporate control transactions that provide no real value. Others, including Steve, suggest that the underlying analyses (rather than the opinion) may help bargaining to an appropriate price in certain transactions where market mechanisms are absent. Dale Oesterle and others have also suggested approaches for improving the consistency of standards in these analyses. The finance literature focuses on the empirical question whether fairness opinions produce a better outcome for the side obtaining them. The evidence is somewhat limited and has produced ambiguous results, though there is some evidence “that boards and investment banks use fairness opinions to further their own interests at an expense to shareholders,” with shareholders being cognizant of such incentives. The chapter concludes that the persistence of expensive fairness opinions, and their use by acquirers as well as target companies in some cases, may suggest that they have some value in nonmarket situations and suggests further research to answer such questions.

Book Supplements

Joshua Dressler & Alan C. Michaels, 2011 Supplement to, Understanding Criminal Procedure, Vol. I Investigations (5th ed.), Volume II Adjudication (4th Ed.).

This latest supplement to the Dressler/Michaels treatise brings the two volumes up-to-date through the 2010-11 Supreme Court term. Coverage includes important new cases from the term that expanded the good faith exception to the exclusionary rule (Davis v. United States), opened new avenues for questioning the adequacy of representation in the guilty plea context (Padilla v. Kentucky), and put a new gloss on the Crawford rule, potentially signaling a change in tack from the new course the Court had been charting in deciding the admissibility of hearsay under the Confrontation Clause.

Larry T. Garvin (w/the late E. Allan Farnsworth), Farnsworth on Contracts 2012-1 (Walters Kluwer 2011).

This latest version of the supplement to the famous three volume contracts treatise now runs 1,000 pages; an extraordinary compilation of knowledge. The volume’s comprehensive and thoughtful coverage includes more than ten percent new material, including a full discussion of the Supreme Court’s recent decisions approving class-action waivers in consumer contracts that Professor Cole has carefully analyzed.