Faculty Scholarship Digest

August 2013

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.


Micah L. Berman, Commercial Speech Law and Tobacco Marketing: A Comparative Discussion of the United States and Canada, 39 Am. J.L. & Med. 218 (2013).

In this comparative analysis, Micah Berman examines the law of commercial speech in the United States and Canada, as applied to tobacco advertising. Berman believes that a comparative approach can enrich our understanding of the First Amendment by introducing new perspectives. By carefully examining how other countries strike the balance between free expression and public health, Berman calls for a re-examination of the First Amendment’s commercial speech doctrine. He first covers the commercial speech doctrine in the United States—the Central Hudson test and the limited Supreme Court guidance—applying it to tobacco advertising. Berman concludes that the key commercial speech cases “all suggest that it may now be harder than in the past for restrictions on tobacco advertising to survive the Court’s review.” But it does not have to be that way. Canada applies a standard of review in commercial speech cases known as the Oakes test, which closely parallels Central Hudson. Both tests require an examination of the government interest involved, the extent to which the proposed restriction promotes the government’s interest, and whether the government’s approach is appropriately tailored to handle the problem. When this test is applied to tobacco advertising, the Canadian Supreme Court has upheld restrictions, provided the law protects tobacco companies’ ability to communicate information to consumers. Berman offers several insights into the Canadian approach that could inform the approach taken in the United States. The most compelling is to examine the values underlying commercial speech doctrine. Canadian commercial speech doctrine is grounded in protecting consumer autonomy and protecting consumers from harm; U.S. commercial speech doctrine started with consumer protection, but has now shifted to protecting the tobacco companies’ rights. Berman calls for refocusing attention on consumer protection to address the death and disease caused by tobacco use.

Micah Berman, Rob Crane, Eric Seiber & Mehmet Munur, Estimating the Cost of a Smoking Employee, Tobacco Control Online First (2013), http://tobaccocontrol.bmj.com/content/early/2013/05/25/tobaccocontrol-2012-050888.full?sid=fdf59a0e-ea75-40f5-a155-93aa97f1d5b2.

In this study, Micah Berman and his coauthors from the College of Medicine and College of Public Health attempt to estimate the excess costs of a smoking employee to a U.S. private employer. Reviewing and synthesizing previous literature estimating certain discrete costs associated with smoking employees, these researchers developed a cost estimation approach that approximates the total of such costs for U.S. employers. Specifically, they report the best estimates of excess costs associated with: excess absenteeism, presenteeism (lower on-the-job productivity caused by nicotine addiction), smoking breaks, healthcare costs, and pension benefits. The authors conclude that the best estimate of the annual excess cost to employ a smoker is $5,816. Since employees who smoke impose such significant costs on private employers, this study provides a well-reasoned estimate of those expenses and allows companies to analyze the costs and benefits of tobacco-free workforce policies.

Micah L. Berman, Michael Freiberg & Julie Ralston Aoki, From Fenway Park to the Mall of America: A Multi-Collaborative Approach to Teaching and Learning, 38 U. Dayton L. Rev. 157 (2012).

In this article, Micah Berman and his coauthors share their experiences in teaching Public Health Law with a multi-collaborative approach. In the Spring of 2011, Berman was teaching in Massachusetts at New England Law – Boston; his coauthors were at William Mitchell College of Law in Minnesota. Rather than teach their upper-level course in the usual way, they decided to design a course to foster collaborative learning, interaction between the students at the two law schools, and appreciation for the real-world relevancy and impact of public health law. They wanted to engage their students in collaborative learning across three dimensions. First, students worked with other students in their own classes to research and prepare presentations about specific public health laws. Second, students collaborated via teleconference across the law schools to teach each other about the public health laws they had studied. Finally, after researching these subjects further and developing their own policy proposals, the students presented their findings to public health practitioners and advocates in their own communities. Berman describes this unique, collaborative approach in detail, offering a blueprint for other law professors interested in offering a similar interactive teaching experience. He examines the pedagogical rationale for this form of collaboration and concludes that they have “developed a promising template for policy-oriented courses that dramatically heightened student engagement and interest in the subject matter.”

Lindsay F. Wiley, Micah L. Berman & Doug Blanke, Who’s Your Nanny? Choice, Paternalism and Public Health in the Age of Personal Responsibility, 41 J.L. Med. & Ethics 88 (Supp. 2013).

This article is based on a panel presentation by Micah Berman and his coauthors at the 2012 Public Health Law Conference. It explores the cultural and political resonance of concerns about public health paternalism and the “nanny state.” The authors contend that the term “nanny state” is a powerful framing device that uses evocative language to bring to mind the negative association of the state treating adults like children. The “nanny state” slur is a product of industry opposition to regulation of tobacco, alcohol, and firearms; the concept has been adopted by the soda and junk food industries to distract attention from actual public health problems. The authors call for honest debate about public health challenges and the ways to best solve them.

Daniel P. Tokaji, America’s Top Model: The Wisconsin Government Accountability Board, 3 UC Irvine L. Rev. 575 (2013).

In this article, Daniel Tokaji explores the significance of theWisconsin Government Accountability Board (GAB)—the nation’s only nonpartisan election administration. Created in 2007, the GAB has responsibility for election administration, including enforcement of campaign finance, ethics, and lobbying laws. There is a detailed method of selecting the six GAB members to secure nonpartisanship. A special panel of four court of appeals judges nominates candidates, all of whom must be former judges. The Governor appoints from this list. The state Senate confirms by a 2/3 supermajority vote. They all serve staggered terms. The GAB stands in stark contrast to rest of the nation’s chief election authorities—partisan elected officials, appointed individuals, and bipartisan boards controlled by one party. The unique structure of the GAB does not guarantee equitable outcomes, but according to Tokaji it has. Analyzing the five most significant election administration issues the GAB confronted from 2007-2012, Tokaji asserts that the GAB has been very effective in administering electoral rules fairly. Taken as a whole, the GAB’s decisions have not favored either major party; both at times have been satisfied and dissatisfied by GAB’s actions. Tokaji concludes that while some disagree on the merits of GAB decisions, the “decision-making process has been meticulous, careful, balanced, and judicious,” making the GAB “a worthy model for the remaining forty-nine states.”

Daniel P. Tokaji, HAVA in Court: A Summary and Analysis of Litigation, 12 Election L.J. 203 (2013).

The Help America Vote Act of 2002 (HAVA) was one of the most significant federal interventions in the history of U.S. election administration. It is therefore unsurprising that it has spawned litigation in its first decade. Dan Tokaji surveys this body of litigation in this article, HAVA in Court. Before analyzing the HAVA lawsuits, Tokaji provides some perspective. Even though there have been thousands of elections in the past decade, he uncovered only 71 lawsuits (all collected in a helpful appendix). Tokaji sees the absence of an express private right of action and the modest mandates of HAVA as reasons for the limited volume of litigation. Those lawsuits that have been filed fall into three basic categories: voting equipment, provisional voting, and voter registration and identification. Tokaji analyzes the major cases in each category and concludes that they collectively reveal a strong pattern of judicial restraint. According to Tokaji, “[c]ourts are reluctant to second-guess state or local election officials on how to implement HAVA’s requirements.”


James J. Alfini, Sharon B. Press & Joseph B. Stulberg, Mediation Theory and Practice (3d ed. 2013).

Josh Stulberg and his coauthors have produced the third edition of their textbook, Mediation Theory and Practice. Much has happened in the mediation field in the seven years since they published the second edition. The authors, in turn, have made significant changes to their text. The first chapter on the historical context of mediation is rewritten. They include a new final chapter (Chapter 11) exploring the many contexts in which mediation is used and career opportunities in the field. Chapter 8, on ethical issues for mediators, is also substantially expanded reflecting the increasing attention to ethical concerns. It is also enriched with actual examples of mediator grievances and advisory ethics opinions. The increasing importance of court-connected mediation is reflected in a reworked chapter on the institutionalization of mediation in the courts (Chapter 9). Also included in this new edition is a state-of-the-art analysis of the advocate’s role in mediation, in recognition of the increasing role of lawyers participating in mediation sessions on behalf of clients. Of course, throughout the textbook the authors add reference to new authorities, both ethics opinions and case law. The result is a timely, current publication that reflects the changes in the field of mediation without any sacrifice of substance from the earlier edition.

Book Review

James Coben & Josh Stulberg, Book Reviews in Brief, Disp. Resol. Mag., Summer 2013, at 33.

In his capacity as Co-Chair of the Editorial Board for Dispute Resolution Magazine, Josh Stulberg reviewed two new books for the Summer 2013 issue (which had a theme of reading about dispute resolution). Contemporary Issues in International Arbitration and Mediation, edited by Arthur Rovine, is a collection of essays that Stulberg finds inspiring. He especially valued the contributions on international commercial arbitration, but thought all of the topics were engaging and merit attention. For Stulberg, it is the authors—problem solving lawyers and scholars analyzing concrete challenges—that make the volume worthwhile. Stulberg also reviewed Civic Fusion: Mediating Polarized Public Disputes by Susan Podziba. In this work, Podziba uses examples from her own mediating experience to illustrate how an intervenor can effectively mediate polarizing public disputes. Stulberg concludes that with this book, “intervenors have effective materials to guide their conduct” when called upon to bring diverse, politically active people close enough together to help them bond.

Book Supplement

Joshua Dressler & George C. Thomas III, Criminal Procedure: Principles, Policies and Perspectives (5th ed. Supp. 2013).

Joshua Dressler and his coauthor George Thomas (Rutgers) published this annual supplement to their seminal casebook, Criminal Procedure: Principles, Policies and Perspectives. Their goal was simple: provide updated text, questions, and new cases to fill the gap between the last published edition and the present. For this 2013 supplement, Dressler and Thomas provide one new Supreme Court case, Florida v. Jardines, concerning the use of drug sniffing dogs at a house. They also provide significant treatment of Maryland v. King involving whether taking an arrestee’s DNA without a warrant is permissible. As supplements go, this one is short and, therefore, sweet. It provides the reader with must-have new material, without unnecessary revision of the original casebook.


Deborah Jones Merritt, The Job Gap, the Money Gap, and the Responsibility of Legal Educators, 41 Wash. U. J.L. & Pol'y 1 (2013).

In this essay, Debby Merritt dissects the legal employment market and exposes the grim prospects facing recent law graduates. Merritt describes the Scylla and Charybdis facing law students today—the “Job Gap” and the “Money Gap.” Using data from the Bureau of Labor Statistics and National Association for Law Placement, Merritt lays out in detail the gap between the number of students earning law degrees and the number of attorney positions available to them (at best, one job for every two graduates). She also provides frank data illustrating both the changing nature of law graduate job opportunities and how universal the impact has been on all law schools. Consider this fact: about two-fifths of graduates from the top tier law schools ranked 16-50 are failing to find full-time jobs practicing law. Merritt then exposes the money gap—declining median salaries for law graduates coupled with explosive increases in law school tuition. She concludes the article with a third gap, the “Responsibility Gap.” Merritt contends that law schools themselves bear significant responsibility for the hardship suffered by their graduates by ignoring the implications of the data, actively misrepresenting their employment outcomes to applicants, continuing to admit many more students than available jobs, and aggressively raising tuition at rates higher than inflation.


Elizabeth G. Klein, Alex C. Liber, Ross M. Kauffman, Micah Berman & Amy K. Ferketich, Local Smoke-Free Policy Experiences in Appalachian Communities, 39 J. Community Health 11 (2013), http://www.doi.org/ (search “10.1007/s10900-013-9733-6”).

In this report, Micah Berman and a team of researchers investigate why strong tobacco control policies are not in place in Appalachian communities. Using qualitative phone interviews with individuals identified as being knowledgeable about local tobacco control policies within a random selection of Appalachian communities with and without local smoke-free policies, five themes emerged: (1) opposition to tobacco control, (2) need for local involvement, (3) role of community coalitions, (4) leveraging outside advocates, and (5) working with decision makers. The chief finding of this research is that in Appalachian communities, the local context and locally-based coalitions were critical to promote the adoption of smoke-free policies.