Faculty Scholarship Digest

August 2014

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.


Amna Akbar

Amna Akbar, Policing “Radicalization”, 3 UC Irvine L. Rev. 809 (2013).

In this article, Amna provides a critical mapping of government practices and the resulting impacts of the process she labels “policing radicalization.” I use the word “critical” in both its meaning of “extremely important” and in its meaning of “analyzing merits/faults,” and, ultimately, in its meaning of expressing adverse judgment. The article’s careful and scholarly description of radicalization policing amounts to a powerful indictment of these policies.

The article begins by identifying the skimpy and conclusory origins of the “radicalization” thesis, in which government identifies what it considers “an observable, and to some extent, predictable process by which Muslims become terrorists, willing and able to commit violence against the United States,” that “is an outcome of certain religious and political cultures within Muslim communities.” The article identifies the extraordinary influence in the construction of the “radicalization” concept exerted by a 2007 report by the New York Police Department, and examines the underpinnings (or lack thereof) of that watershed document. The article then details the startling nature and extent of the “counter-radicalization” activities the government engages in to monitor and counter this “radicalization” process that it has constructed. The radicalization narrative and the government’s “counter-radicalization” practices, under which “Muslims are reduced to either potential terrorists or informants or ‘counter-radicalizers,’” stigmatizes Muslim religious practices and communities in specific ways (familiar in many aspects from other forms of subordination) that the article details as part of its project. Amna explains that “[d]eploying the language of radicalization implicitly counters charges of biased policing. . . . [L]aw enforcement is not monitoring Muslims for being Muslim but instead for radicalization to terrorism.” Arguing that the government has not made its case—that radicalization theory lacks both legitimacy and foundation, the article describes the result as “a dangerous self-perpetuating cycle” of government behavior.

Joseph B. Stulberg (w/Lela P. Love), Success and Failure in ADR: A Dialogue Between Partners, 2 Int’l J. Conflict Engagement & Resol. 59 (2014).

In this article, Josh and his co-author engage in a dialogue regarding developments in the field of alternative dispute resolution (ADR) over the past forty years with regard to five areas. Concerning the scope of ADR processes, Josh, while a famous proponent of mediation and its virtues, regrets that ADR has often become synonymous with mediation, while adjudicatory ADR processes (including arbitration and others) have been shunted aside in the ADR world, even though sometimes “fair dialogue, advanc[ing] basic respect and pierc[ing] power disparities . . . require . . . an adjudicatory process.” Josh’s co-author largely concedes the dominance of mediation but finds that less lamentable for a variety of reasons. Next, with regard to the growth and pervasiveness of court mandated mediation as a step before adjudication, Josh applauds, noting that it forces the lawyers to talk with one another and avoids the stigma of “weakness” for commencing settlement discussions. Josh’s co-author is less impressed because such mandated mediations are sometimes time-constricted in a way that distorts the true goals of mediation.

With regard to scholarship and teaching of ADR, Josh and his co-author are largely in sync, celebrating the success represented by the expansion of ADR scholarship and teaching across many more disciplines. Josh goes on to describe with pleasure the distinctive and deep connection ADR academics have been able to make between the worlds of theory and practice, both in scholarship and pedagogy. Turning to the public consciousness of ADR, Josh and his co-author agree and lament that little beyond litigation penetrates pop culture and public consciousness. In a final section, the author’s address ADR’s biggest current failure and, in contrast, the greatest inspiration for the future. For Josh, the failure “without doubt is the abysmal record of racial diversity among practitioners and teachers,” and Josh details the tragedy of this failure. As for inspiration, ADR helps people “address and resolve their differences with dignity and respect,” what better task to work on every day?

Book Review

Joseph B. Stulberg, Keeping Commercial Arbitration True to its Core Values, Disp. Resol. Mag., Summer 2014, at 18.

In this review Josh discusses the latest edition of a “treasured resource” for all stakeholders in the commercial arbitration process. The review highlights a few particular issues: (i) the important intrusion of e-discovery issues into arbitration and the necessity of establishing reasonable ground rules to keep arbitrations from “spinning out of control;” (ii) the difference in rules and approaches amongst the three primary ADR provider organizations; and (iii) the emergence of new hybrid dispute system models, as dispute system design remains a vibrant reality. The “elephant in the room,” however, remains the threat, perhaps even trend, “of transforming the arbitration process into a litigation process” that undermines the very values that brought commercial arbitration forward.