Faculty Scholarship Highlights
Each month of the academic year, Stephen Vladeck, professor of law and associate dean for scholarship, is joined by a member of the American University Washington College of Law faculty to discuss their recent and future scholarship, and how their research, scholarship, and teaching is shaped by their experiences at AUWCL.
February 2014: Professor Stephen Wermiel - Justice Brennan and the Sullivan Decision, Fifty Years On
March 9, 2014, marks the 50th anniversary of the U.S. Supreme Court’s decision in New York Times v. Sullivan, perhaps the most significant First Amendment ruling in the Court’s history. Although Sullivan remains good law today, Professor Stephen Wermiel documents in a new book, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan, its survival to—and through—the present was hardly a foregone conclusion.
Professor Ann Shalleck, together with her co-authors AUWCL Professor Elliott Milstein and Professor Susan Bryant from the City University of New York School of Law, has put together a new book, Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy, due out this April. The book analyzes and distills the origins and application of clinical education over the last half century, as well as its importance to current work to reshape legal education.
December 2013: Professor Jennifer Daskal - The Evolving Law and Policy of the New Preventive Paradigm
As Professor Jennifer Daskal explains in a forthcoming Cornell Law Review article, an array of non-custodial “pre-crime” restraints—coercive actions taken by the government against individuals short of arrest, incarceration, and criminal prosecution—have proliferated over the past decade. Whether in the context of terrorism-related financial sanctions, the No Fly List, or the myriad residential, employment, and related restrictions imposed on sex offenders, U.S. law and policy have increasingly embraced policies designed to prevent criminal activity, rather than punish it after the fact.
November 2013: Professor Susan Carle - Organizing for Racial Justice and the Development of Constitutional Law
Professor Susan Carle's new book, Defining the Struggle: National Organizing for Racial Justice, 1880–1915, traces the interaction between the activism of groups with little social privilege or power and the development of foundational doctrines underlying constitutional law principles of citizenship equality. As Carle shows through painstaking archival research and compelling narrative, the period spanning the decades around the turn of the twentieth century was much more important to legal civil rights history than many scholars believe.
Although the sovereign immunity of the federal government from tort claims may seem like an arcane and technical topic, for Professor Paul Figley, associate director of American University Washington College of Law's Legal Rhetoric Program, it’s a field that is ripe for detailed academic exploration, especially from Figley’s perspective—one in which the much-maligned doctrine is better understood as a thoughtful reconciliation of an otherwise irreconcilable tension.
September 2013: Professor Brenda Smith - "Prison Rape at/and the Intersection of Gender, Crime, and Sexuality"
For Professor Brenda Smith, one need not look far to see how the problem of prison rape—and the intersection of gender, crime, and sexuality that it represents—has repeatedly manifested itself in her professional practice as a lawyer and her scholarly work. As she has explained, although “[i]t is well known that sexual abuse occurs within the correctional system,” the fact “[t]hat female correctional staff commit a significant proportion of that sexual abuse is met with discomfort bordering on disbelief.” And the result of this discomfort has been a virtually non-existent discourse concerning abuse of men and boys in custody by female correctional workers, even as there have been widely reported public scandals involving misconduct.
For David Snyder, professor of law and director of the Business Law Program at AUWCL, the limits of the U.N. Convention on Contracts for the International Sale of Goods (CISG) provide fertile ground for exploring the differing domestic legal regimes that apply to many—if not most—contracts for cross-border exchanges of goods. To that end, Snyder’s forthcoming Oxford University Press coursebook, co-authored with Tulane law professor Martin Davies, offers a first-of-its-kind assessment of “International Transactions in Goods: Global Sales in Comparative Context.”
Sometime in June, the U.S. Supreme Court will hand down its decision in Fisher v. University of Texas—the latest case to come before the Court raising the constitutionality of race-based affirmative action policies. And yet, although educational equality has been largely the bailiwick of the courts over the past half-century, Professor Lia Epperson’s work takes something of a different tack, looking at the many ways in which the law can help to realize the “promise” of the Court’s landmark 1954 decision in Brown v. Board of Education outside of the courtroom.
April 2013: Professor Janie Chuang - "Exploiting Au Pairs: Labor, Human Rights, and the Myth of Cultural Exchange"
For Professor Janie Chuang, the U.S. au pair program falls right at the intersection of her teaching and research interests of international law, human trafficking, human rights, and migration. As she documents in her recent article, "The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange," the legal categorization of au pairs as "cultural exchange participants" under U.S. law has been used to sustain and disguise a government-created domestic worker program to provide flexible, in-home childcare for upper-middle class families at below-market prices.
As Professor Lindsay Wiley describes, the field of "public health law" is at a fascinating evolutionary moment—from "old" public health law, which focused primarily on quarantines and other forms of infectious disease control, to "new" public health law, a field far more focused on governmental regulation targeted at shaping individual behavioral choices. Among the myriad questions raised by this shift, says Wiley, is the extent to which government should be taking such an active part in regulating private consumption of lawful but harmful goods.
As Associate Professor Jayesh Rathod notes in "The Transformative Potential of Attorney Bilingualism," forthcoming in the University of Michigan Journal of Law Reform, the U.S. legal culture has historically undervalued the utility of bilingual lawyers, assuming that the principal utility of such training is in allowing lawyers to work more efficiently and to pursue a broader range of professional opportunities. In fact, Rathod explains, attorney bilingualism can do much, much more.
Professor Jorge Contreras' recent work draws analogies between patents developed by open industry groups and "patent pools"— a structure in which competitors in the same technological field agree to license their patents covering a particular technology (such as the MP3 or DVD file formats) collectively, and benefit proportionately from the revenue generated by licensing that technology within the industry. Using the evolution of private rules to govern patent pools as a precedent, Contreras aims to demonstrate how the lessons from that evolution could also be applied to open industry standards, with the hopeful endgame being a more comprehensive regime of private—and mutually beneficial—rules and a reduction in the costly and time-consuming patent litigation that currently affects the marketplace.
November 2012: Professor Jonas Anderson - "The Federal Circuit and the Policy-Shaping Function of Specialized Appellate Courts"
The U.S. Court of Appeals for the Federal Circuit has been a frequent subject of academic attention, especially given its unique role as the sole federal court with jurisdiction over patent appeals. Professor Jonas Anderson details in his new article, "Shaping Legislation: The Federal Circuit and Its Relationship With the Legislative Branch," scholars of the Federal Circuit have repeatedly neglected the Federal Circuit’s corresponding relationship with Congress when it comes to the substance of federal patent law, even as they have repeatedly examined the Court of Appeals’ interactions with the U.S. Supreme Court, trial courts, and the U.S. Patent and Trademark Office.
For decades, scholars and policymakers too numerous to count have grappled with the appropriate scope of government whistleblowing--when government employees break the chain of command in order to reveal to inspectors general (or, in some cases, the public) waste, fraud, or abuse by the relevant government agencies. But Associate Professor of Law Amanda Leiter argues that another form of whistleblowing is dramatically underappreciated by those who regulate and write about our modern administrative state. As the title of her current work-in-progress suggests, Professor Leiter's focus is on what she calls "soft whistleblowing"--when government employees disclose to interested parties inside information about presumptively legitimate governmental policies or practices not to reveal fraud, waste, or abuse, but to empower outside groups to push for changes in those policies or practices that the employees are unable to effectuate from the inside.
Associate Professor of Law Benjamin Leff's scholarship addresses the intersection between federal tax laws and the laws governing charitable organizations. At the heart of that intersection is the "non-distribution constraint," or the idea that charitable groups should be prohibited from distributing their profits among private persons. In recent years, a number of scholars have argued that the non-distribution constraint unnecessarily impedes charitable work by creating disincentives for a new breed of "social enterprises" that seek to raise funds from both for-profit investors and charitable donors. Professor Leff's recent scholarship responds to these critiques, suggesting that the latest debates have ignored the government's independent interest in facilitating the provision of charitable goods.
Research and writing about the law of the European Union often focuses on current and future legal issues from the top down—such as through the lens of international law—as applied to the relationship between the EU and its member states. But for Associate Professor Fernanda Nicola, the more interesting questions come from the bottom up—from how the smallest and most local governmental institutions in turn effect and shape policy debates and other conversations at the national, European, and international level.