Faculty Scholarship Digest

December 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, Backlash, Covering and the State of Feminist Legal Theory, 9 Issues in Legal Schol. 1 (2011).

Few if any scholars are better positioned than Martha Chamallas to offer insightful perspective on the state of feminism in the legal academy, and in this article she does so by considering external reasons that might be affecting feminism in law schools generally and in the volume and tone of scholarship in particular. Although legal feminism is in a “quiet phase,” and “generally tolerated,” she explains, it remains “decidedly devalued,” with the result of encouraging “sympathizers to keep their feminism under wraps, in a new academic version of ‘I am not a feminist, but . . . .’”

Using Susan Faludi’s work as a jumping off point, Martha examines the extent of a post-9/11 backlash against feminism in comparison to the backlash of the 1980's, and considers how the former has left feminism culturally “bruised,” and the resulting impact on current law students and young scholars. Part of that impact she describes are “covering” (the tendency of those with feminist related views to downplay their connection) and “masking” (the tendency to cloak opposition to feminism in neutral terms), and the article gives examples of both practices in both the language and decisions of faculty members and students. In keeping with the article’s focus on the responsibility of external forces for the “quiet phase” of feminism in the academy, Martha suggests that “a jolt from the outside world” may be required to inspire and embolden, describing a turn of events in Italy that had such an effect. A final section of the paper identifies three emerging lines of feminist-oriented legal scholarship that have the potential to “enlarge our views of legal feminism” when it moves forward from its current state—trans theory, masculinities theory and social justice feminism—and sketches their contributions and potential.

Amy J. Cohen, On Being Anti-Imperial: Consensus Building, Anarchism, and ADR, 8 Law, Culture & Humanities 1 (2011).

In this article, published in an interdisciplinary peer-reviewed journal edited by Austin Sarat of Amherst College, Amy juxtaposes two process-oriented movements that focus intently on consensus building— alternative dispute resolution (“ADR”) and anarchism—and considers their approaches to law-making and their consequent strengths and weaknesses as vehicles for large-scale change. Amy examines a variety of sources for her description of contemporary North American anarchism, which has been visible in some globalization protests, anti-nuclear campaigns and elsewhere. Anarchist organizing processes have also deeply influenced the Occupy movements, which came to the fore shortly after this paper was written, and one can see some of the article’s general observations playing out in that specific context.

Rick Daley, The Ten Stages of a Real Estate Development Project, 27 The Practical Real Estate Lawyer 33 (2011).

Most books and articles on real estate development projects have, naturally, been written from the developer’s perspective, and hence focus on the early vision and feasibility stages that are uniquely the developer’s role. With vision in place and feasibility at least indicated, however, the lawyer’s role begins and becomes quite substantial. The lawyer who understands the business can make a great difference in this process. Rick has developed a class and published a casebook that takes students through a simulation of the lawyer’s role, step by careful step, that is not only invaluable to future practitioners in the field but more broadly instructs on the problem-solving nature of the profession. Adoption of Rick’s book to teach the class Rick conceived has spread to other law schools.

Jeffrey S. Sutton, What Does—and Does Not—Ail State Constitutional Law, Univ. Kansas L. Rev. 687 (2011).

Judge Sutton has been a leading proponent for the study and teaching of state constitutionalism and its potential importance in the advocate’s toolkit. He has written a leading casebook and many articles on the subject and has regularly taught the class as well. In this article, the lead piece in a symposium on state constitutional law, Judge Sutton identifies some of the primary reasons that state constitutional law has not gained a more prominent place and analyzes their merits.

 Donald B. Tobin, Campaign Disclosure and Tax-Exempt Entities: A Quick Repair to the Regulatory Plumbing,  10 Election L.J. 427 (2011).

Disclosure of political contributions has long been a cornerstone of campaign finance regulation on the grounds that knowledge of the source of a candidate’s financial support is important both for public assessment of the candidate and to prevent actual corruption. Donald, a leading national expert in the interplay of tax and campaign finance, has long-noted an important loophole in disclosure regulation, and since the Supreme Court’s decision in Citizen’s United, exploitation of that loophole appears to be growing rapidly. This article, in the leading journal in the Election Law field, explains the problem and proposes some regulatory fixes that the Department of Treasury can impose constitutionally and without congressional action.


 Deborah Jones Merritt & Ric Simmons, Learning Evidence, From The Federal Rules to the Courtroom (2d ed. 2011).

The first edition of this “uncasebook,” published in 2008, took a new approach to learning texts for an upper-level doctrinal law class. The book offers textual explanation of its subject, the rules of evidence, analyzing the rules and offering concrete examples. With the premise that upper-level students have already learned to extract rules from cases and hypotheticals, the book sets up class time for advanced discussion or problems, rather than extraction/explanation of the rules that have been set out in the text. The book is also replete with friendly icons and summaries designed to assist students in assimilating the material and learning where the law is unclear.

The book has been widely adopted, and West has launched a line of texts, the Learning Series, that follows the model of Debby’s and Ric’s book, so that the second edition is now the lead book in its own series. At the same time, the serious aftershocks from the Supreme Court’s earth-shaking (from an Evidence perspective) decision in Crawford v. Washington and other developments mean that this edition contains much new material, as the field has been unusually in flux (for Evidence) in recent years.