Faculty Scholarship Digest

March 2012

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.


Ruth Colker, Response: Hybrid Revisited 100 G’TOWN L.J. 1069 (2012).

The Hybrid referenced in the title is Ruth’s landmark 1996 book, HYBRID: BISEXUALS, MULTIRACIALS, AND OTHER MISFITS UNDER AMERICAN LAW, in which she addressed the subordination harms that result from binary categories (gay/straight; white/black) that fail to reflect the real world and suggested strategies through which the law could better handle these issues, given the inevitable necessity of some categorizations. This piece is an invited response to a recent article that suggests a new framework for sexuality that accounts for both “specific orientation” (based on the sex of one’s specific partner) and “general orientation” (based on the sex toward which one is generally attracted), which its author claims better accounts for bisexuals.

Ruth’s response reveals much that is missing in this new framework, while concisely providing an insightful discussion into sexuality and the law. The article covers the relevance of “resisters” (people who do not categorize themselves in terms of sexual orientation), “tilters” (people whose general orientation may lean in one direction or the other but are all lumped together as “bisexual” in this new framework), and, most importantly, the socialization aspect of sexual orientation, which Ruth carefully explains with examples of sexual orientation defined in relationship to society. With regard to each of these issues, the article carefully articulates the point and documents its significance with regard to actual legal issues. The article concludes that the relation between sexual orientation and society—the socially constructed portion of sexuality—“must play a crucial role in a sexual-orientation framework if we are to develop adequate legal responses to societal mistreatment and coercion on the basis of sexual orientation.”

Arthur F. Greenbaum

Arthur F. Greenbaum, The Automatic Reporting of Lawyer Misconduct to Disciplinary Authorities: Filling the Reporting Gap, 73 OHIO ST. L.J. 439 (2012).

Art has written extensively about reporting of attorney misconduct, with important articles analyzing enhanced attorney and judicial reporting requirements that could lead to a more effective system of attorney discipline. This article thoroughly considers the potential of a variety of “automatic” reporting requirements, each of which Art ultimately concludes would make a useful addition to the reporting regime: (i) banks reporting overdrafts in attorney trust accounts; (ii) insurers reporting on malpractice insurance claims; (iii) judges reporting adjudications of misconduct (e.g., willful failure to disclose material information) in criminal and civil cases; (iv) self-reporting by attorneys in certain circumstances.

The potential costs, benefits, and indirect consequences of the many permutations of each of these possibilities are daunting, even overwhelming, to contemplate. Yet the article heroically identifies, catalogues, and weighs them with an incisiveness that makes the material both accessible and persuasive. For each category, Art considers not only the theoretical pros and cons and their relevant academic literature, but also the experience in practice of these approaches, in law when they are common (e.g., bank reporting) and in other fields when they are not (e.g., mandatory malpractice reporting to disciplinary authorities in medicine). In addition to ultimately endorsing some use of all four forms of mandatory reporting described above, two themes run through the article’s evidence-based conclusions: a preference for precise rules governing what must be reported, notwithstanding some inevitable over and under inclusiveness, and a skepticism of claims that mandatory reporting will create unduly damaging strategic behavior as an indirect consequence.

Douglas L. Rogers, Coding for Life — Should Any Entity Have the Exclusive Right to Use and Sell DNA?, 12 PITT. J. TECH. L. & POL. 1 (2011).

In this article, Doug addresses a current patent subject of great interest and importance: whether isolated DNA segments are patentable. Doug tackles the question in the context of a current patent infringement lawsuit by a company holding patents “on two ‘isolated’ human breast and ovarian cancer susceptibility genes,” brought against companies engaged in clinical testing. Patent validity must be tested against both the Patent Clause of the Constitution (which prohibits patents that “remove existent knowledge from the public domain . . . or restrict free access to materials already available”) and 35 U.S.C. § 101, which sets out the statutory requirements for patentability. The patents at issue in this case were granted in the 1990's, and upheld as valid by the Federal Circuit in the case at issue. At the time of Doug’s writing, the plaintiffs had filed a petition for certiorari with the United State Supreme Court.

The article reviews the case law on patentable subject matter and concludes that the isolated DNA segments are not patentable. Doug explains that while the process of isolating DNA segments is a human invention and thus potentially patentable, the DNA segments themselves are for practical purposes the same as the analogous native segments and not patentable under previous Court decisions indicating manifestations of laws of nature cannot be patented. Doug also argues that the specific patents at issue are invalid because as written they purport to cover a physical phenomenon, like magnetism or electricity, another category the Court has labeled unpatentable. The article urges Supreme Court review and reversal of the Federal Circuit’s decision upholding the patents. After Doug’s article went to press, the Court decided a case involving a diagnostic blood test, in which the Court concluded that the federal circuit had improperly upheld a patent that, the Supreme Court concluded, was too close to a law of nature. The Court subsequently granted certiorari, vacated and remanded the case Doug discusses for reconsideration in light of the new precedent, and the remanded cases is currently sub judice in the Federal Circuit.

Joseph B. Stulberg (w/Bernard Mayer, Lawrence Susskind & John Lande), Panel Discussion – Core Values of Dispute Resolution: Is Neutrality Necessary?, 95 MARQ. L. REV. 805 (2012).

Thirty years ago, the Vermont Law Review published a famous exchange between Professor Stulberg and Professor Lawrence Susskind, a foundational scholar in the mediation field now at MIT. Their exchange focused on mediator “accountability” (in Susskind’s word) or mediator “neutrality” in Stulberg’s. With the argument set in the context of environmental mediation, Susskind contended that in addition to ensuring full participation and a balanced exchange between the parties, a mediator has a responsibility for the fairness of the ultimate agreement including regard to interest of nonparties to the original dispute. Josh rejected this substantive role for the mediator, contending that a stake in the outcome is not only beyond the mediator’s charge but fundamentally undermines the effectiveness of the mediator’s role.

The Susskind-Stulberg exchange has been a celebrated discussion of a foundational issue in the field ever since, and this Panel Discussion was a part of symposium reviewing that debate thirty years later. Professors Stulberg and Susskind continued to see the merits in their own positions; the core of their disagreement remains. Yet, as becomes evident when the panel is thrown open to questions from the sophisticated audience, Stulberg and Susskind also share a vision of mediation as a crucial means of addressing issues that litigation alone cannot capture.

Joseph B. Stulberg, Must a Mediator Be Neutral? You’d Better Believe It!, 95 MARQ. L. REV. 829 (2012).

Thirty years ago, the Vermont Law Review published a famous exchange between Professor Stulberg and Professor Lawrence Susskind, focused on the merits of mediator “accountability” (responsibility for substantive outcomes and interests of absent parties) versus mediator “neutrality,” a stance that goes beyond objectivity and impartiality (which could be met by advocating substantive principles consistently). Josh advocated the neutrality side in that debate, and this article is a part of a symposium reviewing the classic Susskind-Stulberg debate. Josh’s contribution is a detailed and full-throated defense of the neutrality position: “a mediator must be neutral because justice demands it; and empirically a mediator can, in fact, be neutral in the required way. . . . [Otherwise], there is no principled basis for distinguishing the mediator’s participation from that of a bully or a philosopher king.”

The article acknowledges the practitioners and scholars who have disparaged this view and closely argues the points by examination of mediation in many fields, from family law, to employment questions, to routine civil litigation. The article does not hide from the difficult hypotheticals: “the soon-to-be ex-spouse who agrees to financial settlement terms less generous than what the law mandates or the tenant who accepts the landlord’s reimbursement of the contested security deposit ignorant that she was legally entitled to treble damages.” How can we demand and celebrate a neutrality that facilitates these outcomes? Josh sets out detailed arguments that neutrality is a part of treating individuals with dignity and respect and that, on balance, neutrality — as part of a well-designed mediation process — will “generate[] ‘just’ results more consistently and compellingly” than any other dispute resolution approach.

Peter Swire, A Reasonableness Approach to Searches After the Jones GPS Tracking Case, 64 STAN. L. REV. ONLINE 57 (2012).

In United States v. Jones, the Supreme Court held unanimously that the government had violated the Fourth Amendment by placing a GPS tracking device on a car without prior court approval. Although no member of the Court accepted the government’s argument that no search or seizure existed because only the car’s movements were being tracked and those were already publicly observable, the Court split on whether the heart of the case was that the government’s conduct constituted a search or that it violated reasonable expectations of privacy. Peter contends that the core concern is the potential exercise of “standardless and unconstrained discretion,” and that the appropriate response is to judge both the existence of a search and its reasonableness in the high-tech arena by a combination of the amount of underlying suspicion and the procedures involved to ensure evenhanded treatment. Peter looks to the Court’s Fourth Amendment jurisprudence surrounding checkpoints and its tailoring jurisprudence, requiring minimization procedures in wiretaps, as examples of standards set out in advance and subject to post hoc judicial review as effective means of limiting discretion.

Book Chapter

Steven M. Davidoff, The Private Equity Contract, in THE OXFORD HANDBOOK OF PRIVATE EQUITY (Oxford 2012).

The distinguished contributors to this international and interdisciplinary volume bring a broad array of perspectives and expertise. Steve has authored ground-breaking research on private equity contracts and his chapter is the lead chapter in the book. Private equity contracts—the merger agreements by which private equity funds acquire companies—have been critically distinct from other merger agreements because of their “optionality,” which allows “private equity firms to . . . terminate the merger agreement for any reason” in return for a fee, typically about 3% of the transaction value. During the recent financial crisis, private equity firms used these provisions to great advantage by exercising them to get out of transactions that were suddenly unfavorable. Steve’s chapter explains that, while this was great for private equity in the short run, targets companies, newly conscious of the risk of such options, have become much less willing to grant them. This has hurt private equity because the option was a valuable protection not only against the catastrophic risk of a financial crisis, but also against more routine risks of difficulty in obtaining financing and the like. The chapter carefully examines this history and explores the challenges presented by the new realities surrounding private equity contracts.

Supreme Court Brief

Douglas A. Berman

Douglas A. Berman (w/his students), Brief Amicus curiae in Support of Petitioners, Miller v. Alabama and Jackson v. Hobbs, Nos. 10-9646 & 10-9647 (2012).

In each of these two Supreme Court cases, the petitioners were convicted of homicide and sentenced to life without the possibility of parole under mandatory sentencing statutes for crimes committed when they were fourteen years old. The Supreme Court has found the death penalty unconstitutional for minors and, with these cases, considered whether the Eighth Amendment also forbids sentences of life without parole for juveniles. This brief, prepared by Doug and students in his sentencing class, argues that it does.

The brief argues that the Court’s precedents have established that the Constitution requires that sentencing schemes “give some effect” to the fact that juveniles are different and, in the context of the most severe punishments, make distinctions among different types of murder offenses, neither of which occurred under the mandatory statutes at issue here. They also draw on earlier decisions restricting the most severe punishments to “the worst of the worst” to argue that life without parole cannot be imposed on these juveniles. The Supreme Court, in a 5-4 decision, ultimately overturned the sentences, based on a combination of the first two of these points.