Faculty News

Faculty News
Summer 2003

Edited by Paul Caron,
Charles Hartsock Professor of Law and
Director of Faculty Projects

In This Issue

Marjorie Aaron
Marjorie presented a two-day course in Activist and Evaluative Mediation at Hamline University School of Law. She also presented two Advanced Negotiation Workshops offered through the New Zealand Ministry of Economic Development to professionals from a wide range of government ministries, as well as a workshop for Land Information New Zealand. Marjorie served as a content editor for an online negotiation teaching product being published by Harvard Business School Publishing. Her article, Initial Contacts in Mediation, was selected by the CPR Institute for Dispute Resolution for inclusion in its forthcoming book on dispute resolution practice. Marjorie’s article, Using Decision Trees as Tools for Settlement, 14 Alternatives to High Cost Litigation 71 (1996) (with David P. Hoffer), was cited in the June 2003 update of Robert L. Haig, Successful Partnering Between Inside and Outside Counsel (West Group, 2000).

Joseph Biancalana
Joseph published Originalism and the Commerce Clause, 71 Univ. Cincinnati L. Rev. 383 (2002) (Faculty Scholarship Issue).

Kristin Kalsem
Kristin completed an article, Looking For Law in All the “Wrong” Places: Outlaw Texts and Early Women’s Advocacy, which she presented as part of the College of Law’s Summer Faculty Scholarship Series. She gave a welcoming address to the Class of 2006 at the beginning of Introduction to Law week.

Marianna Brown Bettman
Marianna gave the keynote address to Community Shares on National Priorities-Local Consequences. She wrote American Israelite Columns on Grutter v. Bollinger and Gratz v. Bollinger. She was invited to become a member of Cincinnatus.

Chris Bryant
Chris published Quirin Revisited, 2003 Wisconsin L. Rev. 309; and Stopping Time: The Pro-Slavery and “Irrevocable” Thirteenth Amendment, 26 Harvard J. Law & Public Policy 501 (2003). He presented Judicial Review of Legislative Facts in Constitutional Litigation as part of the College of Law’s Summer Faculty Scholarship Series. Chris participated in the second annual Nevada State We The People Summer Institute at Sierra Nevada College in Incline Village, Nevada. He taught two four-hour sessions on the Bill of Rights and the Fourteenth Amendment to 38 high school and elementary school teachers, who will in turn teach classes participating in the nation-wide We-The-People: The-Citizen-and-the-Constitution program. The program was established in 1987 under the Commission on the Bicentennial of the United States Constitution, is currently directed by the Center for Civic Education, and is funded by the U.S. Department of Education.

Chris’s article, Remanding to Congress: The Supreme Court’s New “On the Record” Constitutional Review of Federal Statutes, 86 Cornell L. Rev. 328 (2001) (with Timothy J. Simeone), was cited in Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave, 112 Yale L.J. 1943 (2003); Robert A. Shapiro & William W. Buzbee, Unidimensional Federalism: Power and Perspective in Commerce Clause Adjudication, 88 Cornell L. Rev. 1199 (2003); Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons From the Past, 78 Indiana L.J. 73 (2003); and in Paul Winke, Why the Preclearance and Bailout Provisions of the Voting Rights Act Are Still a Constitutionally Proportional Remedy, 28 New York Univ. Rev. Law & Social Change 69 (2003). His article, Retroactive Application of “New Rules” and the Antiterrorism and Effective Death Penalty Act, 70 George Washington L. Rev. 1 (2002), was cited in Mariano-Florentino Cuellar, The International Criminal Court and the Political Economy of Antitreaty Discourse, 55 Stanford L. Rev. 1597 (2003); and in Rachel A. Van Cleave, “Death Is Different,” Is Money Different? Criminal Punishments, Forfeitures, and Punitive Damages--Shifting Constitutional Paradigms for Assessing Proportionality, 12 Southern California Interdisciplinary L.J. 217 (2003).

Paul Caron
Paul taught Federal Income Tax at Florida State University College of Law as a Visiting Professor of Law and Introduction to Law at UC College of Law. He published Back to the Future: Teaching Law Through Stories, 71 Univ. Cincinnati L. Rev. 405 (2002) (Faculty Scholarship Issue). Paul presented Cultivating an Active Learning Environment in the Law School Classroom as part of the Faculty Summer Scholarship Series at both Florida State (www.law.fsu.edu/faculty/speakers.php#summer2003) and at UC College of Law.

Jay A. Soled wrote a favorable review of Paul’s Tax Stories book in 100 Tax Notes 727 (2003). Paul signed a contract with Foundation Press for Business Tax Stories (Steven A. Bank (UCLA) & Kirk J. Stark (UCLA), Editors), the ninth book in his Law Stories series.

Paul published several issues of his Tax Law Abstracts e-journals www.ssrn.com: twelve issues each of Tax Law & Policy (vol. 4, nos. 21-32) and Practitioner Series (vol. 3, nos. 21-32) (both co-edited with Joseph Bankman (Stanford)), and four issues of International & Comparative Tax (vol. 3, nos. 6-9) (co-edited with Robert A. Green (Cornell)).

Thomas D. Eisele
Tom published What We Share, 71 Univ. Cincinnati L. Rev. 493 (2002) (Faculty Scholarship Issue).

Adam Feibelman
Adam presented Bankruptcy Limits on Regulatory Policy as part of the College of Law’s Summer Faculty Scholarship Series.

Rafael Gely
Rafael taught Introduction to Law. He published Supreme Court Employment Law Cases 2001-02 Term, 6 Employee Rights & Employment Policy J. 189 (2002). Two of Rafael’s articles were accepted for publication: So You Want to be a Partner at Sidley & Austin?, in the University of Houston Law Review (with Len Bierman); and Pay Secrecy/Confidentiality Rules and the National Labor Relations Act, in the University of Pennsylvania Journal of Labor and Employment Law (with Len Bierman). He was quoted in Dems Intervene in Cintas dispute, Cincinnati Enquirer, July 12, 2003, at D1.

Three of Rafael’s early co-authored articles with Pablo T. Spiller (A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J. Law, Economics & Organization 263 (1990); Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 Rand J. Economics 463 (1992); and The Political Economy of Supreme Court Constitutional Decisions: The Case of Roosevelt's Court-Packing Plan, 12 Int’l Rev. Law & Economics 45 (1992)), were cited in a variety of sources: Daniel B. Rodriguez & Barry R. Weingast, The Positive Political Theory of Legislative History: New Perspectives on The 1964 Civil Rights Act and its Interpretation, 151 Univ. Pennsylvania L. Rev. 1417 (2003); Richard A. Posner, The Institutional Dimension of Statutory and Constitutional Interpretation, 101 Michigan L. Rev. 952 (2003); Matthew C. Stephenson, “When The Devil Turns . . .”: The Political Foundations of Independent Judicial Review, 32 J. Legal Studies 59 (2003); Barry Friedman & Anna L. Harvey, Electing the Supreme Court, 78 Indiana L.J. 123 (2003); and in Terri Peretti, A Normative Appraisal of Social Scientific Knowledge Regarding Judicial Independence, 64 Ohio St. L.J. 349 (2003).

Mark Godsey
Mark testified before a subcommittee of the Ohio House of Representatives concerning a bill designed to give some prisoners a right to DNA testing in their cases. The bill successfully passed the House and Senate and was signed into law by Governor Taft. Mark presented Due Process Aspects of Confessions Law as part of the College of Law’s Summer Faculty Scholarship Series.

Mark’s article, Miranda’s Final Frontier: The International Arena: A Critical Analysis of U.S. v. Bin Laden, and a Proposal for a New Miranda Exception Abroad, 51 Duke L.J. 1703 (2002), was excerpted in the leading criminal procedure textbook, Yale Kamisar, Wayne R. LaFave, Jerold H. Israel, & Nancy King, Modern Criminal Procedure (West Group, 10th ed 2003), and critiqued and discussed at length in M.K.B. Darmer, Beyond bin Laden and Lindh: Confessions Law in an Age of Terrorism, 12 Cornell J. Law & Public Policy 319 (2003). His article, When Terry Met Miranda: Two Constitutional Doctrines Collide, 63 Fordham L. Rev. 715 (1994), was cited in Sara Ciarelli, Pre-arrest Silence: Minding That Gap Between Fourth Amendment Stops and Fifth Amendment Custody, 93 J. Criminal Law & Criminology 651 (2003).

Emily Houh
Emily had two pieces accepted for publication: a book review, Paula Johnson’s Inner Lives: Voices of African American Women in Prison, in the International Journal for the Semiotics of Law; and Reflections on Grutter v. Bollinger, in the SALT Equalizer. She presented Critical Feminist Theory and the Place of Objectivity in the Law at a roundtable session, Is there Objectivity in the Law, and Should We Care?, at the Law and Society Association Annual Meeting in Pittsburgh. Emily presented Critical Theory as part of the College of Law’s Summer Faculty Scholarship Series.

Christo Lassiter
Christo was quoted in Homeless in Cincinnati, Cincinnati Enquirer, Aug. 10, 2003, at A1; and in Reluctant Juror Wins Day in Appeals Court, Cincinnati Enquirer, June 7, 2003, at B1. His article, TV or Not TV--That is the Question, 86 J. Criminal Law & Criminology 928 (1996), was cited in the 2003 pocket part of Kevin F. O’Malley et. al., Federal Jury Practice And Instructions: Jury Trial (West Group, 5th ed. 2000).

Bert Lockwood
Deena R. Hurwitz, Lawyering for Justice and the Inevitability of International Human Rights Clinics, 28 Yale J. Int’l Law 505 (2003), cited a telephone interview with Bert.

Betsy Malloy
Betsy was named Director of the Glenn M. Weaver Institute for Law and Psychiatry at the College of Law. She published three book reviews in Vol. 25 of The Human Rights Quarterly: International Bioethics: West Learns from East (reviewing A Cross-Cultural Dialogue on Health Care Ethics (Harold Coward & Pinit Ratanakul eds.) (p.822); The Model of a Great Doctor (reviewing Paul Farmer, Infections and Inequalities: The Modern Plagues) (p.826); and De-Institutionalizing the Mentally Disabled: The Canadian Solution (reviewing A Textured Life: Empowerment and Adults with Developmental Disabilities (Alison Pedlor et al. eds.) (p.832). Betsy accepted an invitation to participate in a disability law symposium in sponsored by the Wake Forest Law Review.

Betsy’s article, Something Borrowed, Something Blue: Why Disability Law Claims Are Different, 33 Connecticut L. Rev. 603 (2001), was cited in Jared Hager, Bowling for Certainty: Picking up the Seven-Ten Split by Pinning Down the Reasonableness of Reassignment After Barnett, 87 Minnesota L. Rev. 2063 (2003).

Brad Mank
Brad taught Introduction to Law. He published Are Title VI’s Disparate Impact Regulations Valid?, 71 Univ. Cincinnati L. Rev. 517 (2002) (Faculty Scholarship Issue). Brad completed an article, Can Congress Regulate Intrastate Endangered Species Under the Commerce Clause?, which he presented as part of the College of Law’s Summer Faculty Scholarship Series. He was elected Vice Chair of the Cincinnati Environmental Advisory Council, which advises the Cincinnati City Council, City Manager, and City Departments regarding environmental issues.

Several of Brad’s articles were cited in leading books and law reviews: Textualism’s Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies, 86 Kentucky L.J. 527 (1998), in James J. Sample, The Sentences That Bind (The States), 103 Columbia L. Rev. 969 (2003); Protecting Intrastate Threatened Species: Does the Endangered Species Act Encroach on Traditional State Authority and Exceed the Outer Limits of the Commerce Clause?, 36 Georgia L. Rev. 723 (2002), in Robert A. Shapiro & William W. Buzbee, Unidimensional Federalism: Power and Perspective in Commerce Clause Adjudication, 88 Cornell L. Rev. 1199 (2003), and Christopher H. Schroeder, Environmental Law, Congress, and the Court’s New Federalism Doctrine, 78 Indiana L.J. 413 (2003); Should State or Corporate Law Define Successor Liability?: The Demise of CERCLA’s Federal Common Law, 68 Univ. Cincinnati L. Rev. 1157 (2002), in Mustafa P. Ostrander, Suing Dissolved Corporations under CERCLA: Does State or Federal Capacity Law Apply?, 16 Tulane Envt’l L.J. 471 (2003); Is There a Private Cause of Action Under EPA’s Title VI Regulations?: The Need to Empower Environmental Justice Plaintiffs, 24 Columbia J. Envt’l Law 6 (1999), in the 2003 update to Linda A. Malone, Environmental Regulation of Land Use (West Group); Using Section 1983 to Enforce Title VI’s Section 602 Regulations, 49 Kansas L. Rev. 321 (2001), in Sam Spital, Restoring Brown’s Promise of Equality after Alexander v. Sandoval: Why We Can’t Wait, 19 Harvard Blackletter L.J. 93 (2003); and Protecting the Environment for Future Generations: A Proposal for a “Republican” Superagency, 5 New York Univ. Envt’l L.J. 444 (1996), in Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, 15 Geogia Int’l Envt’l L. Rev. 457 (2003) and in John C. Dernbach, Targets, Timetables And Effective Implementing Mechanisms: Necessary Building Blocks For Sustainable Development, 27 William & Mary Envt’l Law & Policy Rev. 79 (2002).

Donna Nagy
Donna published the Teacher’s Manual for her casebook, Securities Litigation and Enforcement: Cases and Materials (West Group, 2003) (with Richard Painter (Illinois) and Margaret Sachs (Georgia)). She presented Playing Peekaboo with Constitutional Law: The Public Company Accounting Oversight Board and Its Private/Public Status at the Law and Society Association Annual Meeting in Pittsburgh and as part of the College of Law’s Summer Faculty Scholarship Series.

Donna’s articles, Reframing the Misappropriation Theory of Insider Trading Liability: A Post-O’Hagan Suggestion, 59 Ohio St. L.J. 1223 (1998), and The “Possession vs. Use” Debate in the Context of Securities Trading by Traditional Insiders: Why Silence Can Never be Golden, 67 Univ. Cincinnati L. Rev. 1129 (1999), were cited in Marc I. Steinberg, Insider Trading Regulation--A Comparative Analysis, 37 Int’l Lawyer 153 (2003), and in the June 2003 pocket part of Thomas Lee Hazen, Law of Securities Regulation (West Group, 4th ed 2002).

Jim O’Reilly
Jim published four articles: An Eye for an Eye: Foresight on Remedies for LASIK Surgery’s Problems, 71 Univ. Cincinnati L. Rev.541 (2002) (Faculty Scholarship Issue); Off-Label or Out of Bounds? Prescriber and Marketer Liability for Unapproved Uses of FDA-Approved Drugs, 12 Annals Health Law 295 (2003) (with Amy Dalal, UC College of Law Class of 2004); “Access to Records” Versus “Access to Evil”: Should Disclosure Laws Consider Motives as a Barrier to Records Release?, 12 Kansas J. Law & Public Policy 559 (2003) (Symposium on Information Disclosures by Government: Data Quality and Security Concerns); and A State of Extinction: Does Food and Drug Administration Approval of a Prescription Drug Label Extinguish State Claims for Inadequate Warning?, 58 Food & Drug L.J. 287 (2003). His article on how the Food & Drug Administration and Congress are dealing with the post-9/11 critical need for defensive drug products was accepted for publication in the NYU Annual Survey of American Law. Jim assumed new duties as Publications Chair of the ABA Section of Administrative Law.

Jim’s article, Dialogue with the Designers: Comparative Influences on Products Design Norms Imposed by Regulators and by the Third Restatement of Products Liability, 26 Northern Kentucky L.Rev. 655 (1999), was cited in Garcia v. Wyeth-Ayerst Laboratories, 265 F.Supp.2d 825 (2003).

Bill Rands
Bill’s article, Domination of a Subsidiary by a Parent, 32 Indiana L. Rev. 421 (1999), was cited in the 2003 update to Linda A. Malone, Environmental Regulation of Land Use (West Group) and in Roxanne Barton Conlin & Gregory S. Cusimano, ATLA’s Litigating Tort Cases (West Group, 2003).

Ronna Schneider
Ronna’s article, Getting Help with Their Homework: Schools, Lower Courts, and the Supreme Court Justices Look for Answers Under the Establishment Clause, 53 Administrative L. Rev. 943 (2001), was cited in Chelsea Chaffee, Making a Case for an Age-Sensitive Establishment Clause Test, 2003 B.Y.U. Education & Law J. 257 (2003).

Michael Solimine
Michael published Nepotism in the Federal Judiciary, 71 Univ. Cincinnati L. Rev. 563 (2002) (Faculty Scholarship Issue). He presented Recalibrating Justiciability in Ohio Courts as part of the College of Law’s Summer Faculty Scholarship Series.

Several of Michael’s books and articles were cited by a variety of authors and judges, including Shoring Up Article III: Legislative Court Doctrine in the Post CFTC v. Schor Era, 68 Boston Univ. L. Rev. 85 (1988) (with Richard B. Saphire), in Tennessee Valley Authority v. Whitman, 336 F.3d 1236 (11th Cir. 2003), and in Jerry L. Mashaw et al., Administrative Law: The American Public Law System (West Group, 5th ed. 2003); Forum-Selection Clauses and the Privatization of Procedure, 25 Cornell Int’l L.J. 51 (1992), in Andrew S. Bell, Forum Shopping and Venue in Transnational Litigation (Oxford University Press, 2003); Respecting State Courts (Greenwood Press, 1999) and The Supreme Court, Judicial Review, and the Public: Leadership Versus Dialogue, 11 Hastings Constitutional L.Q. 1 (1994) (both with James L. Walker), in Daniel R. Pinello, Gay Rights and American Law (Cambridge University Press, 2003); Rethinking Feminist Judging, 70 Indiana L.J. 891 (1995) (with Susan E. Wheatley), in Lee Epstein et al., The Norm of Prior Judicial Experience and its Consequences for Career Diversity on the U.S. Supreme Court, 91 California L. Rev. 903 (2003), and in Lee Epstein et al., The Political (Science) Context of Judging, 47 St. Louis University L.J. 783 (2003); Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 Hastings Constitutional L.Q. 213 (1983) (with James L. Walker), in Debra Lyn Bassett, The Hidden Bias in Diversity Jurisdiction, 81 Washington Univ. L.Q. 119 (2003); Deciding to Decide: Class Action Certification and Interlocutory Review by the United States Court of Appeals Under Rule 23(f), 41 William & Mary L. Rev. 1531 (2000) (with Christine Oliver Hines), in Michele Connell, Full Faith and Credit Clause: A Defense to Nationwide Class Action Certification?, 53 Case Western Reserve L. Rev. 1041 ( 2003); The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temple L. Rev. 425 (1992) (with James L. Walker), in William G. Ross, The Resilience of Marbury v. Madison: Why Judicial Review Has Survived So Many Attacks, 38 Wake Forest L. Rev. 733 (2003), and in James J. Brudney, Recalibrating Federal Judicial Independence, 64 Ohio St. L.J. 149 (2003); The Quiet Revolution in Personal Jurisdiction, 73 Tulane L. Rev. 1 (1998), in Robin Paul Malloy, Framing the Market: Representations of Meaning and Value in Law, Markets, and Culture, 51 Buffalo L. Rev. 1 (2003), and in Roxanne Barton Conlin & Gregory S. Cusimano, ATLA’s Litigating Tort Cases (West Group, 2003); Diluting Justice on Appeal?: Examination of the Use of District Court Judges Sitting by Designation on the United States Courts of Appeals, 28 Michigan J. Law Reform 351 (1995) (with Richard B. Saphire), in Joshua Glick, On the Road: The Supreme Court and the History of Circuit Riding, 24 Cardozo L. Rev. 1753 (2003); Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. Legal Studies 271 (1998) (with William M. Landes & Lawrence Lessig), and The Impact of Babcock v. Jackson: An Empirical Note, 56 Albany L. Rev. 273 (1993), in Jim Chen, Judicial Epochs in Supreme Court History: Sifting Through the Fossil Record for Stitches in Time and Switches in Nine, 47 St. Louis University L.J. 677 (2003); and Rethinking Exclusive Federal Jurisdiction, 52 Univ. Pittsburgh L. Rev. 383 (1991), in Bradford R. Clark, The Constitutional Structure and Jurisprudence of Justice Scalia, 47 St. Louis University L.J. 753 (2003).

Suja Thomas
Suja appeared as a guest on Sports Lite, a weekly radio call-in show hosted by Bill Meredith on WCIN 1480 to disucss the legal ramifications of the Kobe Bryant case.

Joseph Tomain
Joe published Between law and Virtue, 71 Univ. Cincinnati L. Rev. 585 (2002) (Faculty Scholarship Issue) (with Barbara G. Watts); and Regulatory Law and Policy (LexisNexis Group, 3rd ed. 2003) (with Sidney A. Shapiro) (Kansas). He presented The Jurisprudence of the Ancient Quarrel as part of the College of Law’s Summer Faculty Scholarship Series.

Joe participated in the Annual Meeting of the American Constitution Society in Washington, D.C. He attended board meetings of the Cincinnati Bar Association, KnowledgeWorks Foundation, RISE Learning Solutions, Cincinnatus Association, and Mercantile Library. Joe made a presentation to the UC Foundation Board. He was quoted in the May 2003 update of The Law of Zoning and Planning (Clark Boardman Callaghan). Joe spent three wonderful weeks in Tuscany amid indescribable art and enjoying equally indescribable Brunello.

Verna Williams
Verna completed an article, Reform or Retrenchment: Single Sex Education and the Construction of Race and Gender, which she presented as part of the College of Law’s Summer Faculty Scholarship Series. She consulted with the Ford Foundation in planning a Women and the Law conference for 2004.

Ingrid Wuerth
Ingrid completed an article, Presidential Power to Detain U.S. Citizens as Enemy Combatants: Modern Lessons from Mr. Madison’s Forgotten War, which she presented as part of the College of Law’s Summer Faculty Scholarship Series

For past issues, visit the Faculty News Archive.