Faculty Scholarship Digest

October 2015

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, Religious Accommodations for County Clerks?, 76 OHIO ST. L.J. FURTHERMORE 87 (2015), http://moritzlaw.osu.edu/students/groups/oslj/files/2015/10/Vol.-76-87-101-Colker-SCR-Essay.pdf.

The Ohio State Law Journal created Furthermore, its online-only publication, “to promote dialogue regarding current legal topics.” Ruth amply furthers that goal with this timely discussion of the legal issues surrounding a Kentucky county clerk’s refusal to issue marriage licenses in the wake of Obergefell v. Hodges. The clerk, Kim Davis, declared that her Christian beliefs forbade issuing marriage licenses to same-sex couples. To accommodate those beliefs, Davis first refused to issue licenses to any couple; when a federal district court ordered Davis to resume issuing certificates, she unilaterally changed language on the certificate form. Ruth deftly analyzes both Davis’ religious freedom claim (based on the Kentucky Religious Freedom Act) and the Establishment Clause implications of accommodating Davis’ claim. Ruth concludes that, although Davis might be able to establish a claim under the state statute, successful accommodation is unlikely. Any attempt to “facilitate Davis’ views on the marriages of same-sex couples [would put] the state, itself, in the position of furthering an unconstitutional purpose.” As Ruth notes, “[s]ome jobs in our society conflict with people’s religious or moral beliefs.” The Constitution promises religious freedom, but it does not guarantee access to every job for every person. Just as a “Sabbath-observing Jew cannot work at a job with Saturday-only hours,” the job of county clerk may not be “suitable for someone opposed to same-sex marriage on religious grounds.”

Dakota S. Rudesill, Christopher J. Walker & Daniel P. Tokaji, A Program in Legislation, 65 J. Legal Educ. 70 (2015).

When legislation is the topic, Moritz leads the discussion. Dakota, Chris, and Dan demonstrate that point in this joint contribution to the Journal of Legal Education. The three presented the paper at the 2015 AALS Annual Meeting as part of a program on Legislation/Regulation and the Core Curriculum; it appears now in a symposium issue devoted to that topic. Dakota, Chris, and Dan begin by describing different approaches to the first-year Legislation course: Statutory interpretation is a central component of the offering, but professors complement that material with different mixes of administrative law and law of the political process. Professors teaching a Legislation course will appreciate our colleagues’ thoughtful topic outline, casebook suggestions, and assessment of the competing approaches. For other faculty, the discussion promotes understanding of a course that many of us never had the chance to take in law school.

Building on this foundation, Dakota, Chris, and Dan describe the “integrated program of instruction” that Moritz offers in the legislation field. In particular, they highlight four upper-level courses that provide hands-on learning: (1) the Legislation Clinic; (2) the Washington, D.C., Summer Program; (3) the National Security Simulation; and (4) an informal mini-clinic in which students are advocating for statutes that would establish federal and state legislative clerkships. These four initiatives, as our colleagues explain, help students navigate the procedures, perils, and personalities of legislative lawmaking; give them firsthand familiarity with how legislators think; help them master new communication styles; and expose them to ethical challenges. Read this and you may want to go to law school all over again—or at least visit one of these classes.

Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 HARV. C.R.-C.L. L. REV. 439 (2015).

In this detailed and thorough article, Dan charts the past and present role of Section 2 of the Voting Rights Act in “vote denial” cases—claims challenging voter ID requirements, restrictions on early and absentee voting, registration restrictions and the like—and draws on this elucidation to propose an optimal test for adjudicating such claims going forward.  Voting rights cases can take many forms.  For starters, they may focus on vote denial or the once more commonly litigated vote dilution (such as districting challenges), and they may be statutory under the VRA or constitutional, and, if the latter, primarily grounded in Equal Protection or in a right to vote perspective.  It has left a complex maze.  The Court’s decision in Shelby County striking down a different section of the Voting Rights Act, however, has led to a recent spate of litigation under Section 2, and Dan notes a developing (but non-unanimous) lower court consensus for deciding such claims, under which plaintiffs must show “that the challenged practice imposes a ‘discriminatory burden’ on a protected class” and that it is “linked to ‘social and historical conditions’ producing racial discrimination.”

While approving these tests to a point (and they are similar to an earlier suggestion in Dan’s scholarship), Dan argues that they are, as a constitutional matter, too tough on the state.  The article describes a narrow path that must be navigated between a statutory remedy that requires proof of intentional discrimination (and hence adds nothing to constitutional protections) and one that goes too far in restricting states beyond constitutional mandates (and hence would be seen by the Supreme Court as an unconstitutional meaning for Section Two).  The article urges that this narrow path can be widened somewhat by understanding that Section Two enforces not only the 14th Amendment prohibition on racial discrimination, but also “the constitutional right to electoral participation.”  With this strengthening of the constitutional basis for statutory action in place, Dan proposes a revised test that requires plaintiffs to show that the challenged rule causes a disproportionate burden on a protected class tied to social and historical conditions, but then allows defendants to show “by clear and convincing evidence that the burden on voting is outweighed by the state interest” the regulation protects.

Book Chapter

Daniel P. Tokaji, Electronic Voting in the United States, in E-VOTING CASE LAW: A COMPARATIVE ANALYSIS 215-232 (Ardita Driza Maurer & Jordi Barrat eds., 2015).

Scholars from thirteen countries contributed to this global review of electronic voting. Dan ably represents the United States, recounting the evolution of our voting technology since Bush v. Gore. As Dan notes, the 2000 Presidential election “shone a bright and unflattering light on the voting equipment used for U.S. elections, a subject to which very few people had previously paid much attention.” Through this chapter, Dan shines his own light on judicial and legislative responses to the 2000 election. As Dan explains, the results have been mixed. Voting districts updated technology with funds from the Help America Vote Act, but those machines are nearing the end of their life cycle. The U.S. Election Assistance Commission, charged in part with setting voluntary standards for voting systems, “has proven exceptionally dysfunctional.” Courts have entertained some challenges to voting technology (including two in which Dan helped represent plaintiffs) but have “mostly left the resolution of questions involving electronic voting to the political branches of state, local, and federal government.”

Dan’s review is especially impressive because he must explain the nuances of the U.S. political, judicial, and constitutional system to readers from other countries; he does so clearly and concisely. U.S. scholars and policy makers, meanwhile, should find his account sobering. We have moved beyond chads, but our voting systems still lack coherence, standards, and contemporary technology. Nor will internet voting solve our problems; in a trial run, University of Michigan researchers hacked the system within just 36 hours. Their hack will horrify all Buckeyes: Voters who submitted their ballots heard the Michigan fight song in return.


DAKOTA RUDESILL ET AL., WILSON CENTER, THE DEEP WEB AND THE DARKNET: A LOOK INSIDE THE INTERNET’S MASSIVE BLACK BOX (2015), https://www.wilsoncenter.org/sites/default/files/stip_dark_web.pdf.

Dakota and his co-authors wrote this paper for the Science and Technology Innovation Program at the Wilson Center.  His co-authors on this interdisciplinary work are a computer scientist and a technologist from a Geography department.  As the title implies, the paper discusses the “Deep Web” and the “Darknet.”  The Deep Web refers to “the portion of the web that has not been crawled and indexed, and thus is beyond the . . . reach of standard search engines,” such as Google or Bing.  The authors explain that the Deep Web is an estimated 400 or 500 times larger than the “surface” web, and many well-known websites—for example, Westlaw, Lexis and Findlaw—use the Deep Web.  The “Darknet” is a portion of the Deep Web that generally speaking shares files anonymously over a distributed network.  The White Paper explains that while there are many “legitimate and benign uses” for the Darknet, it is also employed for many illegal activities (e.g., drug sales) and more recently especially for dissemination of cybercrime tools and stolen data.

The paper explores the legal and policy implications, noting of course the potential for regulatory evasion.  While in the United States the Computer Fraud and Abuse Act covers much illegal cyber activity, such as selling hacking tools, the international law framework has been slow to develop, as the paper explains in some detail.  As outlined in the paper, “there are multiple regulatory issues related to the emerging Darknet at both national and international levels that need to be resolved.”