Faculty Scholarship Digest
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.
Douglas A. Berman, Graham and Miller and the Eighth Amendment’s Uncertain Future, Criminal Justice, Winter 2012, at 19.
Doug Berman sorts out the future of the Eighth Amendment’s protection against cruel and unusual punishment in this article appearing in Criminal Justice, the official periodical of the ABA Section of Criminal Justice. Berman exposes the doctrinal difficulty of line-drawing by examining the Supreme Court’s recent juvenile sentencing cases, Graham v. Florida, 130 S. Ct. 2011 (2010) and Miller v. Alabama, 132 S. Ct. 2455 (2012). In Graham, the Court declared cruel and unusual a sentence of life without parole (LWOP) imposed on a juvenile for a pair of armed robberies. In Miller, the Court declared that a mandatory LWOP sentence imposed on a juvenile convicted for two murders was also cruel and unusual. Berman sees Graham as announcing a new categorical, substantive rule: no juvenile found guilty of a non-homicide crime may be sentenced to LWOP. In contrast, Berman sees Miller as establishing a new procedural rule: no juvenile offender guilty of the worst homicide may be automatically sentenced to LWOP because there must be an opportunity to consider mitigating circumstances. The combined effect is to untether Eighth Amendment jurisprudence from the longstanding “death is different” principle—leaving no reliable predictor of what will limit or shape it in the future.
Daniel Chow, Lessons from Pfizer’s Disputes Over its Viagra Trademark in China, 27 MARYLAND J. OF INT’L L. 82 (2012).
In China, everyone refers to Viagra as Weige, a term coined by the Chinese media shortly after Viagra’s official launch in the United States. “Weige is an almost exact homophone of Viagra” for a Chinese speaker, but also has a literal meaning of “great older brother,” which amounted to “a gentle and humorous name” that “spoke to China’s consumers” and aligned “with China’s cultural attitudes towards sex.” Pfizer’s own Chinese designated name for Viagra proved a flop, and, by the time Pfizer got around to seeking trademark protection for Weige in China, another company had gotten there first, with devastating consequences for Pfizer’s ability to control the Viagra market in China.
This article takes us on a guided tour of this debacle, using these events as a case-study to explain how multinational companies come to fail to proactively trademark their products’ Chinese transliterations and why the consequences can be so financially damaging, even though the company does hold the patent on creating the product in question. Dan also sets out the solution for multinationals: obtaining a Chinese-language trademark based on transliteration before the English-language mark becomes public.
Daniel Chow, China and Human Rights in International Trade, 9 S.C. J. Int'l L. & Bus. 13 (2012).
In this article, Dan Chow explores whether the U.S. can use human rights as a justification for imposing trade restrictions on China at either the multilateral or national level. At the multilateral level, it is all about the World Trade Organization (WTO). Before China joined the WTO, the U.S. conditioned tariff rates on Chinese goods upon a review of China’s human rights policy. After China joined the WTO, it now benefits from WTO policy removing human rights issues from justification for trade restrictions. Consequently, the U.S. cannot use human rights to justify trade restrictions against China consistent with the WTO. At the national level, however, a state can impose domestic regulation on corporations and private actors, such as the U.S. Foreign Corrupt Practices Act. Chow sees two competing visions. The U.S. approach seeks to tie human rights to the conduct of international business by corporate and private actors. China takes the opposing view that human rights are not related to international business. According to Chow, “[a]s China become more powerful and its influence spreads, China’s approach may increasingly challenge the U.S. approach for supremacy around the world.”
Daniel Chow, The Interplay Between China’s Anti-Bribery Law and the Foreign Corrupt Practices Act, 73 Ohio St. L. J. 1015 (2012).
China’s emergence as a center for global business has led many multinational corporations (MNCs) to set up business operations there. In this article, Dan Chow describes how these companies are increasingly at risk for violating both the U.S. Foreign Corrupt Practices Act (FCPA) and China’s anti-bribery laws. China presents special risks for violation of the FCPA because the Communist Party is involved in almost every facet of life in China. This means the FCPA’s proscription against bribes to foreign officials applies in more contexts in China because what appear to be private businessmen will qualify as foreign officials. This is magnified by the Justice Department’s expansive view of “foreign officials” and state-owned enterprises under the statute. The aggressive reach of the FCPA in China is compounded by a business culture that tolerates petty corruption, such as kickbacks, payoffs, gifts, and favors. While there has been recent attention to the greater risk of FCPA violations stemming from business in China, Chow argues that the threat to MNCs caused by China’s domestic bribery laws has been ignored. Chinese law makes a distinction between bribery cases involving private parties (“commercial bribery”) versus those involving state officials (“official corruption”). Official corruption is not tolerated; however, such cases are handled in secrecy by the Party itself. While the Chinese government has traditionally looked the other way when kickbacks were relatively small, private, and unreported, Chow believes that there are now “incentives for the Party to take a tough stance” on commercial bribery leading to more aggressive prosecution and publicity. This presents the real problem for MNCs because the fact patterns arising in commercial bribery cases also implicate FCPA violations. The equation is simple: more Chinese commercial bribery cases mean more U.S. FCPA cases. MNCs, which recognize the severity of FCPA violations and consider them as posing a “threat to the viability and continued existence of the company itself,” need to be on alert to risks posed by the domestic commercial bribery cases now too.
Steven M. Davidoff, A Case Study: Air Products v. Airgas and the Value of Strategic Judicial Decision-Making, 2012 COLUM. BUS. L. REV. 2:502 (2012).
This article was a part of a symposium on the Delaware Court of Chancery. As his title suggests, Steve uses his contribution to closely analyze the litigation surrounding Air Product’s hostile takeover effort targeting Airgas (perhaps the most prominent hostile takeover battle of 2010) with an eye towards assessing the judicial opinions in the case (there were three key decisions). Steven contrasts the elements of those decisions that might be considered “process oriented,” i.e., apolitical judgments based on positive law with gaps filled by reference to prior law, with those that might be considered “strategic,” i.e., judgments informed by “the institutions and forces that can affect their status and goals.” In the case of Delaware courts, strategic considerations can and certainly do include that judges “derive significant prestige [and post-retirement benefits] from their status as the leading corporate jurists of the land” and Delaware’s position as the preeminent jurisdiction for incorporation—“more than one-fourth of its state revenue is derived from public incorporations.”
In the Airgas matter, Steven finds both strategic and process-oriented decision-making. Two examples of the former receive the closest scrutiny. First, at a crucial stage of the battle, the Delaware Supreme Court overturned a decision of the Court of Chancery, with the Supreme Court’s decision favoring the target company, whereas the Court of Chancery had ruled for the putative acquirer. The article sets out how, on a positive law basis, the Supreme Court’s decision was surprising, but as a strategic matter less so, since a perception of protection from hostile takeovers may be an essential part of Delaware’s attractiveness for incorporation. Indeed, Steven notes that the target’s brief to the Supreme Court framed its argument to give prominence to this risk of corporate flight. Steven critiques the Court’s decision not for considering this strategic factor, but for misweighting it: the number of companies affected by a ruling for the acquirer would actually have been very small and the rule-of-law loss from ignoring certain precedents should have outweighed this consideration, even as a strategic matter. On the other hand, Steven has a kinder assessment of a Court of Chancery decision in the litigation in which the judge stated that precedent forced him in one direction but also explained why, in his view, the precedent was mistaken, thus “walk[ing] a line between . . . doctrinal development [and] the desire and need to cater to wider constituencies.”
Katherine Hunt Federle, A Tribute to Victor Streib, 38 OHIO N. L. REV. 1 (2012).
In this tribute to Professor Streib, Kate points to his accomplishments in modeling the connection between the theory and practice of law. She cites Streib’s book, Death Penalty for Juveniles, as a leading scholarly piece on the problems with capital punishment for children while he also “walked the walk of the practitioner,” by representing juveniles in capital cases, including one that reached the United States Supreme Court. Kate describes his contributions as changing “the face of juvenile justice in the United States for the better.”
Katherine Hunt Federle (w/Danielle Gadomski), The Curious Case of the Guardian Ad Litem, 36 UNIV. DAYTON L. REV. 337 (2012).
In this article, Kate and her coauthor trace the history of the guardian ad litem and the guardian’s role representing children in abuse and neglect proceedings by advocating for the “best interests of the child”; they then use that history to critique this dominant contemporary approach. The concept of guardianship traces back to Roman Law, and the ad litem (for litigation) traces to medieval England, where he was appointed to represent minors with property in litigation. As the article explains, however, these concepts developed when parents did not have “the sort of custodial rights and power we recognize today.” The juvenile court movement at the start of the twentieth century continued this view of the state as ultimately responsible, particularly for children of the poor, so that the court “could interfere with the parental right of custody when the child’s welfare so demanded, as when the parent was deemed neglectful, incompetent or had failed to provide for the child as ‘required by both law and morals’.” In the latter half of the twentieth century, the article explains, concern grew about the rights-infringing nature of such interventions and the incompetence of judges to handle them; so the guardian ad litem emerged, but still to represent the best interests of the child—in sharp contrast of the usual role of a lawyer to represent a client’s expressed wishes.
Kate and her co-author critically examine this state of affairs. First, they note the very structure evidences a recognition that actors in an abuse or neglect proceeding—parents, social services agencies, judges—cannot determine the best interest of a child on their own. Second, they note that the extraordinary indeterminacy of the “best interests” standard invites arbitrary and biased outcomes in particularly disturbing ways in relation to race and class: “guardians may be less respectful for their wards’ preferences, viewpoints, and desires, choosing instead to exert extraordinary power over the direction of the case. Bias may also lead guardians to assume a more adversarial posture with respect to parents and align with the state agency seeking to remove children.” The article concludes with a call for empowering children with a voice in proceedings affecting their relationships with their parents, but taking children’s “claims seriously . . . is only possible if we acknowledge that the guardian ad litem is a barrier to reform.”
Edward B. Foley, Electoral Dispute Resolution: The Need for a New Sub-Specialty, 27 OHIO STATE J. ON DISP. RESOLUTION 281 (2012).
In this essay Ned calls for development of a new field: electoral dispute resolution — “the previously uncharted intersection of two existing fields: election law and dispute resolution.” Ned notes that election disputes have some distinctive features (such as often being a zero-sum game) that require adjustment from some of the more traditional areas for alternative dispute resolution (such as labor-management relations) as well as certain political pathologies. At the same time, Ned explains how electoral disputes differ from other political disputes, creating the need for this distinctive field of work. The hope “is that the newly emerging field of electoral dispute resolution can pursue the development of neo-Madisonian solutions to the original Madisonian problem.” If resolving the problem takes “several generations,” so be it. Ned points, with specific examples, to both the need and the advances that suggest solutions are possible.
Garry Jenkins, Nongovernmental Organizations and the Forces Against Them: Lessons of the Anti-NGO Movement, 37 BROOKLYN J. OF INT’L L. 459 (2012).
This rich and comprehensive article thoughtfully examines the rapid rise of nongovernmental organizations (“NGOs”) and the critiques of NGOs that have arisen from both right and left and from governments, and offers normatively and instrumentally prescriptive lessons for NGOs from this analysis. International NGOs have grown tremendously in size and significance to become important participants in international “humanitarian relief, conflict resolution, economic and social development, environmental protection” and much more. This growth and influence, carefully described in the article, has provoked a backlash that the article also details. From the right, NGOs are criticized for undermining democratic practices and national sovereignty, as well as for undermining free-markets and corporate interests. From the left, in ironic contrast, NGOs are criticized for “furthering Western capitalist interests,” for being ultimately more concerned with the interests of their underlying funding sources than of the populations they are organized to serve.
What to make of these critiques? “Accountability” is a concept increasingly imported from the private to the nonprofit sector with inadequate appreciation of the differences in its application. Garry is nationally recognized for his work mapping those differences and their effects and for developing important critiques of the new fashion of “philanthrocapitalism.” While a supporter of NGOs, Garry uses that same toolbox to offer them lessons from the critiques they now face. While rejecting the notion that NGOs have become too powerful, Garry argues that NGOs based in developed countries have become too directive of the NGOs they support in developing countries. NGO’s must not only be “accountable” to funders, but also sensitive to their “authenticity and voice,” as opposed to merely serving as subcontractors for funders in developed countries. “As foundation assets and interest in international philanthropy grow, the anti-NGO movement will grow as well, unless . . . funders address the problem and their own responsibility for its creation.”
Katrina Lee, Focusing on a Critical Developmental Relationship through Aspirational Role Play, U. N.M. Mentoring Inst. (5th Annual Mentoring Conference), Oct. 2012, at 1046.
Katrina Lee describes her successful use of role playing exercises as a form of experiential learning in legal writing classes. She uses the “most critical developmental relationship in the legal profession”—the law firm partner and the associate—as the basis for the exercises. However, Lee introduces a new twist to the traditional scenario where the first year student plays the associate and the professor is the partner. Her innovation requires students to play the partner role. This switch gives students the opportunity to experience the perspective of a supervising professional questioning a junior professional. Because many law students aspire to be law firm partners, the role play contributes to student engagement and interest. The role play develops important legal skills, such as giving and receiving feedback, but also creates awareness, simulates, and teaches about the partner-associate relationship itself. Sample exercises are included so you can see for yourself how this simple switch can pay off exponentially in student learning.
Daniel Tokaji & Owen Wolfe, Baker, Bush, and Ballot Boards: The Federalization of Election Administration, 62 Case W. Res. L. Rev 969 (2012).
Dan Tokaji and Owen Wolfe (Moritz ’12) contribute this piece to Case Western Reserve Law Review’s Symposium, Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution. Tokaji and Wolfe see the broader impact of Baker as increasing the federal judiciary’s involvement in election administration (the set of electoral practices like voting machines, ID, registration, provisional ballots, and the like). While mostly the domain of the states, they see increasing federal intervention in this area. The authors start with an interpretation of Baker, not as a federalization of redistricting by courts over legislatures, but as essentially a federalism case—one where the states lose to the federal government. Just as Baker changes everything in the redistricting world, along comes Bush v. Gore which elevates federal judicial superintendence over election administration. Make no bones about it, Tokaji and Wolfe see this as a good thing. Just as for the past fifty years the federal courts played a larger role in redistricting because state and local officials could not be trusted as disinterested actors, federal courts are needed in election administration because of their insulation from partisan politics.
Stephanie Renee Hoffer (w/Peter Postlewaite), INTERNATIONAL TAXATION, CORPORATE AND INDIVIDUAL (7th Ed.) (Car. Acad. Press 2011).
The latest edition of this handsome, leading two-volume treatise in a constantly evolving field maintains its currency as well as the other features that have made it a go-to resource in the area: clear and comprehensible writing, thoughtful, accurate and complete coverage, and valuable footnotes to deeper treatments of particular issues. The volumes cover both the taxation by the United States of U.S individuals and entities on their income outside the U.S. and the taxation by the United States of foreign individuals and entities on both their U.S. and “foreign source” income.
Nuno Delicado, Horacio Falcao, Ellen E. Deason, Sharon Press, Shahla Ali, Eric Blanchot & Habib Chamoun-Nicolas, Assessing Negotiation Competitions, in Assessing Our Students, Assessing Ourselves 213-245 (Noam Ebner et. al. eds., 2012).
Ellen Deason is a contributor to this chapter on negotiation competitions that draws on the experiences from competitions around the world. While negotiation competitions are an excellent way to both engage students and assess mastery of skills, there is little consensus on how best to organize them. The seven authors who collaborated on this chapter represent negotiation competitions in different fields (law, international relations, business) and on different continents (Africa, Asia, Europe, North America). The collective experience of the authors is broad and deep. This chapter is a “how-to” on negotiation competitions from assumptions at the start to assessments at the end. Deason provides the U.S. law school perspective with her analysis of the ABA’s Negotiation Competition. It is easy to see her contribution. The chapter identifies “ethical standards” as a vital category of assessment, yet only one of the competitions, the ABA Negotiation Competition, included ethics as an evaluation criterion. If you are planning a negotiation competition and need the full range of details to ponder, this chapter spells them out.
Edward B. Foley, A Tale of Two Teams, reviewing Jay Weiner, THIS IS NOT FLORIDA: HOW AL FRANKEN WON THE MINNESOTA SENATE RECOUNT (Univ. Minn. Press 2010), 10 Election L. J. 475 (2011).
Ned is the leading academic expert on the Minnesota recount, so he is well-positioned to review this blow-by-blow account written by a sportswriter who ended up being assigned to daily coverage of the senate battle by an online Minnesota daily. Ned gives Weiner generous praise for strengths that may be traced to his journalistic and sports writing background. The book is “vivid in its details,” “you are in the room with all the participants,” and the personalities of those involved are especially well described. “Most valuable of all,” Weiner was able to get the judges involved to share some of their internal feelings about what was going on, leaving readers “grateful that Wiener is able to give this normally unavailable glimpse behind the judicial curtain.” Finally, Ned is in deep agreement with the essential conclusion of the book captured in the title: the Minnesota recount was entirely different (in a good way) from Florida in 2000 (Ned, of course, has analyzed why this was so). Not surprisingly, Ned concludes that Weiner is much less strong in his description of some of the legal arguments, in particular underplaying the potential merits of some of Norm Coleman’s positions. Nonetheless, “the favoritism displayed for one side of the dispute is not a reason not to read” the book. Its “vivid description of how it felt for all the relevant players to live through this intense and important experience” not only makes it an interesting read, but “gives the book lasting value” as a contribution to understanding “the psychology of democratic politics.”
Joshua Dressler & Alan C. Michaels, 2012 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 2011-12 Supreme Court term. Coverage includes Jones v. United States, in which the Court considered when GPS tracking constitutes a Fourth Amendment “search,” (at least when it is more than “short term”), whether a subsequent adjudication by plea or trial eliminates the prejudice of ineffective assistance of counsel during earlier plea bargaining (it doesn’t), and how the Court’s Crawford rules apply to a DNA report created before any particular suspect was targeted (no constitutional bar to admission of report, but Court’s 4-1-4 decision so splintered that, in the words of Justice Kagan, “what comes out of . . . th[e]se holdings is — to be frank — who knows what”).
L. Camille Hébert, 2011-12 SUPPLEMENT TO EMPLOYEE PRIVACY LAW (Thomson-West). Camille is the author of this leading treatise on the subject which, in this electronic era, she updates annually rather than putting out a new edition. This allows her each year not only to update every chapter, but regularly to put out new versions of individual chapters, on a rolling basis, keeping the supplement from becoming hopelessly thick. In this year, there were two revised chapters: “Electronic Monitoring and Surveillance,” which now runs 282 pages, and Discrimination Based on Sexual Orientation and Gender Identity,” which now runs over 400 pages. Of course, both of these important areas remain subjects of continuing doctrinal development; indeed, the section on gender identity discrimination is entirely new.
Martha Chamallas, Warm Reasoning and Legal Proof of Discrimination, in Jon Hanson ed., IDEOLOGY, PSYCHOLOGY, AND LAW (Oxford Univ. Press 2012).
Martha’s comment is part of an interdisciplinary volume in which chapters from one discipline are followed by comments from another, in this case a chapter from psychology followed by a comment from law. The chapter traces the intellectual history of the debate within psychology over whether judgments are rooted in motivations and emotions (so-called “hot” processes) or in cognitive, rational operations, so-called “cold” processes. Martha summarizes: “As is the fate of most dichotomies, they report that the latest thinking in the field now generally endorses a ‘warm’ view of human reasoning that concedes the importance of both processes” and now focuses on how they interact. With “‘warm’ reasoning,” Martha notes, “it is axiomatic that individuals are seldom fully aware of the factors influencing their judgments and often mistakenly believe they are objective and unbiased.”
Martha discusses the relevance of these conclusions from social psychology to critical ongoing issues of anti-discrimination law: (i) disparate treatment analysis vs. a requirement of conscious discrimination, and (ii) the relevance and application of “mixed motivations” when an employment decision is affected by both legitimate and illegitimate factors. The comment notes that the conclusions of psychology provide “considerable ammunition” for some of the traditionally liberal sides of these debates. The prevalence of unconscious bias undermines the demand for proof of conscious discrimination, and “human beings are so adept at selectively marshaling principles to support a desired result that . . . . the only way to ferret out inconsistency and bias is to look at a larger pattern of decisions. . . .” Moreover, in mixed-motivation cases, attempting to assess the relative weights of the “legitimate” and “illegitimate” factors amounts to such a fiction that “the law would be better directed toward answering the normative question of whether the disparate treatment was justified under the circumstances.” On the other hand, she notes that the human mind’s “warm” reasoning to use principle to match its preference “can be as robust in situations favoring minorities as it is in anti-minority cases,” putting liberals to the hard choice of endorsing a broad psychologically informed definition of causation in all cases, or to “shift ground and . . . argue for adoption of an asymmetric, antisubordination approach” that limits antidiscrimination law to “dismantl[ing] entrenched social hierarchies.”
Supreme Court Brief
Sharon L. Davies, Brief Amici Curiae Coalition of Black Male Achievement Initiatives in Support of Respondents, Fisher v. University of Texas, No. 11-345 (2012).
In Fisher, the Court faces the question whether the University of Texas’ use of race in undergraduate admissions decisions violates the Constitution. This brief was filed on behalf of a group of initiatives and centers across the United States directed at black male achievement. The brief presents a series of arguments in support of the constitutionality of holistic race-conscious review of undergraduate applications with a particular focus on its relevance for African-American males.
Following the Court’s rubric under Gruter v. Bollinger, the brief argues that holistic review is an absolute necessity for achieving the diverse learning environment that the Court has recognized is a compelling interest for the State in preparing its future citizens. In support of this argument, the brief disaggregates racial and gender data, demonstrating that the numbers of African-American males at selective universities are already shockingly low—and would be even lower without independent review. As a separate argument, the brief contends that the continued disproportionate isolation of African Americans “from educational, economic and social opportunity” creates an independent compelling interest for the State to reduce the conditions that create this inequality of opportunity, and that holistic review “has been one of the most potent tools for keeping the doors of our universities open to these students and attracting them inside.” The empirical evidence in support of both arguments paints a devastating picture.