List of expertise by faculty member.
The most important work I’ve done in the last 10 years is to complete the codification of the laws of Uganda. Working with a Ugandan colleague, I identified and found copies of existing Ugandan laws and created the first up-to-date set of Ugandan statutes and statutory instruments since 1964. I’ve also completed two revisions of my co-authored textbook, The Process of Legal Research, one of the standard legal research textbooks since it first was published in 1986.
Upcoming: I’m working on a new edition of my co-authored textbook this summer to address legal research literacy in the second decade of the 21st century. I’ll also be writing a piece on focused, cost-effective law library collection development strategies.
First Amendment: Religious Liberties
Law and Religion
My most frequent scholarly theme is that we can best handle modern church-state problems in America by adapting our historic system of “voluntarism” in religion: rules and principles that minimize government’s involvement in religious matters and that respect how private individuals and groups voluntarily choose to pursue religion. In various articles I have outlined the historic meaning of voluntarism and how to apply it to today’s challenges of religious pluralism and large, welfare-state government; argued that properly designed government funding programs can promote religious choice; and argued that voluntarism can best protect minority rights. One of my recent articles described how states could recognize civil marriage for same-sex couples and also protect religious liberty for traditional believers who object to facilitating or recognizing such marriages – enabling both sides in the culture wars to live out their deep commitments without government discouragement or interference.
Upcoming: Projects on “Christian Realism and Public Life”; religious liberty and political allegiance; intellectual property and religious thought.
Impact of Medical and Bioethical Policy on Communities of Color
People of color consistently receive lower-quality health care, even when factors such as insurance status, differences in medical condition and income do not enter the picture. These disparities arise, in part, from institutionalized rules, policies and expectations of health care organizations and individual providers. Typically, civil rights enforcement, like malpractice litigation, focuses on identifying whom or what to blame and, therefore, can redress some particularly egregious forms of race-based disparities. However, racial disparities that are the result of complicated, self-reinforcing and historically rooted decisions, rules and practices are not amenable to the proof format – and blame-laying – required by civil rights laws. A comprehensive systems approach is needed.
Upcoming: A detailed legal and public policy analysis of the Affordable Care Act and the implications for minority health.
In 2002 my article “Fetal Pain Legislation: Is it Viable?” appeared in the Pepperdine Law Review. I discussed the scientific evidence that a fetus can feel pain at 20 weeks of gestation, and argued that, at a minimum, women should be informed of fetal pain prior to an abortion. A few legislatures responded immediately by including the existence of fetal pain in the information that women must receive prior to performance of abortions. Last year Nebraska lawmakers went even further and passed the Pain-Capable Unborn Child Protection Act, recognizing prevention of fetal pain as a compelling state interest and prohibiting all abortions after 20 weeks except those necessary to preserve the life or the health of the mother. This year the Pain-Capable Unborn Child Protection Act has been enacted in Idaho, Kansas and Oklahoma, with several other legislatures, including Minnesota’s, still considering the Act.
Upcoming: I will write about using ultrasound when counseling women seeking abortions. Multiple studies evidence the benefits to women receiving this information.
Constitutional Law of Foreign Relations
Presidential War Powers
Public International Law
Much of my scholarship has been concerned with considering alternatives to the United Nations Charter as the primary legal basis for world order. On the critical side, I have argued that the
charter suffers from irremediable flaws with respect to its provisions regulating the use of force. On the positive side, I have explored two such possibilities: a) a return to the unregulated, but
generally peaceful, world order of the period from 1815 to 1914, in which a concert of Great Powers informally maintained the peace and b) a policy of encouraging the growth of constitutional democracy, based on the “democratic peace” theory.
Upcoming: I’m writing an extensive, detailed work on the international law regulating the conduct of hostilities.
Catholic Social Thought and Law
My most important idea has been that Supreme Court justices differ greatly in how they discuss history. Some judges use history to identify and implement the original understanding of the framers of our country’s founding documents, focusing on what they meant to do, and then using that understanding to argue a particular point in a case. In “Adjusting the Rear-View Mirror: Rethinking the Use of History in Supreme Court Jurisprudence” (2006), I proposed that history might be more effectively used to help us focus on the present and the future, concentrating on why the framers did what they did. This approach to the historical record allows us to consider the accumulated wisdom of the past two centuries as we determine the best course of action to take now with an eye toward creating a stronger future.
Upcoming: My current work concerns the Ninth Amendment and the problem of unenumerated rights. As the Bill of Rights was created, it became clear that the founders would not be able to delineate every last right to which people were entitled, then or at any point in the future. The Ninth Amendment provides a structure for discussing those rights that are not explicitly addressed in the Bill of Rights.
I have focused my scholarship to promote a paradigm shift in higher education for the professions, including business, but particularly legal education, toward the formation of each student’s ethical professional identity. The “big” ideas in a series of articles, including substantial empirical research, are that: (1) ethical professional formation occurs over a lifespan, and is significantly slower in development than other skills; (2) the elements of an ethical professional identity can be clearly defined as learning objectives for the educational program; (3) the internalized moral compass of each student is the foundation; (4) students are at different stages of development in terms of ethical professional formation so educators must engage each student at the student’s current stage; and (5) we can identify educational engagements that are effective in fostering the growth of a student’s ethical professional identity.
Upcoming: Working with research fellow Verna Monson, I am putting together a book proposal to synthesize all of our empirical research and articles on professional formation.
Alternative Dispute Resolution
My scholarship has suggested that enhancing the “shadow of the law” through citizen participation is essential to the optimization of dispute resolution systems in Latin America. I have argued that processes such as consensus building could create channels for meaningful participation in public decision making, which could, in turn, supplement representative democracies. I also have argued that there is untapped potential in the already existing multidoor courthouses in the form of casas de justicia. I have proposed that if this architectural design were expanded to include all citizens, and not just the poor, and were linked through regional and national committees, they could contribute to developing channels of communication, best practices and greater accountability. I contend that this could help to advance systemic inclusion and participation, thus contributing to building a foundation for rule of law in the region.
Upcoming: My work has moved to the international level, focusing on optimizing dispute resolution systems across cultures and borders.
Mergers and Acquisitions
In recent years, I have been exploring and developing the law of fiduciary duties as they apply to corporate officers, a surprisingly neglected area. My work has emerged as the leading work in this area, for which I am grateful. I now am investigating various aspects of this, for example, the faith connection to duties and how wrongdoers might be sanctioned in novel ways, for example, by barring
them from serving in comparable leadership positions within corporations.
Upcoming: A study of gender and voting patterns in securities cases, and how law contributes (or doesn’t) to corporate responsibility.
Law of the European Union
Law and Economics
European Hate Speech Laws
Muslims and the Law
Holocaust Denial Laws
My scholarship explores how historical experiences, legal institutions and cultural traditions help determine the type of speech acts a society bans. My main focus has been hate speech laws in Europe. For example, I observed that Holocaust-denial bans were more likely to emerge in countries with direct experience with Nazi rule. Especially in Germany, such laws were defended as a precaution against totalitarianism. More recent work has focused on the integration of Muslims in Europe, an issue in which I have found a similar argument. Burqa bans and the publication of the Danish cartoons have been justified as necessary steps to avoid appeasing “radical Islam,” which replaced Hitler and Stalin as Europe’s new totalitarian threat. Interestingly, however, the response to this “new totalitarianism” has been to call for more speech and an end to Europe’s hate speech laws.
Upcoming: I am studying the trial of Geert Wilders, a politician charged with violating Dutch hate speech laws for anti-Muslim comments.
Civil Rights and Criminal Justice
My greatest emphasis in my scholarly writing has focused on intersecting issues such as race, poverty and the criminal justice system on African-American children and families. Alarmingly, there are more than 2.4 million, or 1 in 100, adults incarcerated in the United States. Sadly, poor
African-American men and women comprise a disproportionate number of this group, largely as a result of the war on drugs that began in the mid-1980s. When African-American men and
women are incarcerated, their children often suffer emotionally and psychologically, and are sent to live with other relatives or are placed in what are sometimes broken foster-care systems. I argue that in order to preserve poor African-American families, we must reexamine our drug war policies and work to mitigate the harms these laws and policies have caused to this segment of the population.
Upcoming: Focusing on the link between the language of the 13th Amendment and the current incarceration crisis in the United States.
Because law and religion are often inseparable, law cannot be studied in isolation from religion. Adding the lens of religion to the study of the law does at least two things. First, religion helps to distinguish genuine (or just) law from that which is counterfeit. All people have inherent rights that religion helps to delineate. If the law refuses to recognize those rights then the law is, simply, unjust. Second, religion tempers the claims of even “good” laws by reminding the state that individuals have more than one allegiance and authority – not only to the state and its laws, but also to their religions
and other associations, such as families and schools. This temperance should lead to modesty in law’s claims, thereby providing ample space for individuals and groups to associate freely. I write about these ideas in family law, constitutional law, human rights and legal history.
Upcoming: To ensure the continued consideration of religion in discussions of marriage and divorce, and to explore the intersection of law and religion in public life.
I think the most important “idea” I have had in the last 10 years is to think deeply about vocation and the culture of law school. That prompted my 2004 article, “From Those to Whom Much
Has Been Given, Much is Expected: Vocation, Catholic Social Teaching, and the Culture of a Catholic Law School,” and has launched me on a course to think more deeply about aspects of law
school culture that impact formation of professional identity. My forthcoming piece in the Journal of Legal Education on competitive-renewal scholarship programs, which was referenced in a
recent New York Times article on competitive-renewal scholarship programs, is an outgrowth of this emphasis on law school culture.
Upcoming: Continuing to focus on how law school culture impacts formation of professional identity, as well as writing about performance-enhancing drugs in law schools.
I’m breaking the rules because I am most attached to one article, but my best idea was something completely different. My favorite article is the one I wrote about the importance of mentoring and the 10 lessons I learned from my mentor. Steve Easton, dean at the University of Wyoming Law School, is my mentor and my fabulous brother. This article was a tribute to him. It gave me a chance to tell him how much he has meant to me and share his good advice. My best idea was to write a series of articles about eloquent American presidents who can continue to inspire persuasive writers because they used one writing quality effectively. I have completed three articles: Abraham Lincoln (brevity), Thomas Jefferson (metaphor), and James Madison (co-authored with Tom Berg and student Joey Orrino) (rigor).
Upcoming: I will write about Ulysses Grant and Theodore Roosevelt to complete my series on eloquent American presidents.
Sentencing and Corrections
My most important idea in scholarship has been the stubborn insistence that the crack/powder cocaine ratio in the federal sentencing guidelines comport with the demands of the Sixth
Amendment. This has led to a series of articles, briefs and lectures that culminated in the Supreme Court win in Spears v. United States, in which I was lead counsel.
Upcoming: I will focus on the death penalty and broader reforms in federal sentencing and commutation practice.
Among my contributions to the area of constitutional law is the insight that the power of constitutional interpretation is not the sole or unique province of the judiciary. The Constitution establishes constitutional supremacy, not judicial supremacy. The power of constitutional interpretation is not vested in a single body or branch, but like other important constitutional powers, is divided and shared by many actors in our constitutional system, none of which has the sole or superior power to act, and each of which is checked by the others. The implications of this insight are reflected in numerous scholarly articles, in my new co-authored casebook, The Constitution of the United States (Foundation Press, 2010), and a forthcoming co-authored book for general readers, The Constitution: An Intelligent Introduction and Brief History.
Upcoming: Book projects on the radically religious reasons and logic underlying America’s commitment to religious liberty and on the constitutional issues surrounding the presidency of Abraham Lincoln.
History of Western Law
The most important idea in my scholarship is the centrality of rights to legal analysis, even in areas we do not commonly think of as rights-based. This is the theme of my book, Power Over the Body, Equality in the Family, which explores the origins of rights-based thinking even in matrimonial law. I explore the medieval origins of the concept “marital rights.” I followed this book with a series of articles exploring what is natural and what is contingent in American marriage law of the last 150 years.
Consumer Credit Regulation
My scholarship has straddled two very different areas. In one series of articles, I traced the evolution of consumer credit law from a matter of local (primarily state) regulation to a matter of federal regulation, demonstrating the interplay between regulatory action and case law that has given this complex area its current form, and concluding that a dynamic tension between the two provides the optimum form of regulation. In another series of articles, I explored convergences between Catholic teachings on women and their role in contemporary society and the strand of feminist legal theory known as “care feminism,” “cultural feminism” or “relational feminism,” articulating a Catholic feminism based practically on strong social support of people engaged in family care work, and theoretically on a dependency-based theory of justice and a gender theory of complementarity.
Contributions and mentions in the media
Business and Legal Ethics
My most important research has been to work with more than two dozen white-collar offenders, many of whom I prosecuted as an assistant U.S. attorney, to explore the origins of and reasons for their misconduct, and the lessons to be learned from the crimes they committed and their consequences. We have made more than 150 joint ethics presentations at law and business schools, colleges and conferences throughout the country. The focus of our scholarship has been to compile and analyze these presentations in videos and articles. The work continues.
Upcoming: Promoting ethical behavior and addressing criminal justice reforms through the Holloran Center for Ethical Leadership in the Professions, and my Crime and Punishment and other courses.
Litigation with the Federal Government
Federal Litigation and Procedure
Empirical Studies of Judicial Decision-Making
Much of my scholarly work over the past decade attempts to unravel a contradiction that weaves its way through the statutes, case-law and legal theory applying to suit against the sovereign United States – that the federal government is the same and yet is not the same as every other party in civil litigation. The question is how and where to draw the line between those kinds of harm caused by government that are properly the subject for a judicial remedy by a damages judgment against the United States and those collateral, but sometimes harmful, consequences of vital or policy-oriented government operations that should be shielded from judicial review. In the past 10 years, I’ve written and had published a treatise and a casebook on “Litigation With the Federal Government” and several articles on federal sovereign immunity and government litigation struggling toward a resolution of this persistent question.
Upcoming: Preparing a new edition of my treatise, finishing an overview for a symposium, and planning an article that further addresses federal government liability.
Taxation in Indian Country
Most important idea and future research – all rolled into one: Over the past 15 years of writing articles involving taxation and Native Americans, I slowly discovered that embedded within the original intent of the United States Constitution is the “consent doctrine.” Under the consent doctrine, the United States agreed that it would never take Indian lands or diminish tribal sovereignty except in the case of tribal consent or just war. This was a widely accepted proposition during the drafting of the U.S. Constitution – so much so, that it was part of the plan of the constitutional convention. During the end of the 19th century, the U.S. Supreme Court erroneously departed from the consent doctrine. My ongoing research argues that the consent doctrine is a constitutional principle in federal Indian law that should continue to apply today.
Legal Ethics/Legal Profession
Rights of Conscience, Law, Religion and Public Policy
My scholarship begins from a commitment to the social nature of the human person and builds out from there. Much of our law reflects an unrealistically individualized conception of the person, and I have tried to bring a more relational view to our understanding of law, particularly in the areas of religious liberty and the legal profession. For example, in my book, Conscience and the Common Good, I argue that defending individual autonomy is not the same as defending the liberty of conscience because, although conscience is inescapably personal, it is also inescapably relational. Conscience is formed, articulated and lived out through relationships, and its viability depends on the law’s willingness to protect the associations and venues through which individual consciences can flourish. Put simply, the law needs to defend the liberty of groups, not just the liberty of individuals.
Upcoming: I am writing a book exploring the relational dimension of Dr. Martin Luther King’s worldview and its potential impact on lawyers’ tendency to see themselves as mere technicians.
African-American Catholic Concerns
The most important idea for my research in the past 10 years has been in the area of canon law (i.e., the law of the Catholic Church), to empirically survey the methods employed by the several Catholic colleges and universities in the United States in order to identify and assess the variety of methods these institutions have used (e.g., modifications in institutional governance, or in hiring standards and procedures; new offices for identity and mission, and the programs they have undertaken; etc.) to comply with the 1990 apostolic constitution, Ex Corde Ecclesiae and the American bishops’ “Norms of Application” for that special law, both of which are designed to promote the Catholic ecclesial identity and mission of those schools.
Upcoming: Examining the recent Vatican laws toward establishing special “ordinariates” for Anglican Christians who enter full communion with the Catholic Church.
The use of cluster munitions violates international humanitarian law in nearly all cases. Cluster munitions are artillery shells, rockets or air-delivered bombs that break into small bomblets or submunitions. Because of their wide area of coverage (making them difficult to accurately target) and their high “dud” rates (converting them into dangerous unexploded ordnance), their use creates serious hazards for civilians. This idea was vindicated in 2008 with the creation of the Convention on Cluster Munitions (CCM), an international treaty banning cluster munitions. The CCM has been signed by 108 countries; 57 have ratified it.
Upcoming: I am researching the extent to which graduate students in mental health professions serve as expert witnesses in immigration proceedings.
Elder Law Mediation
The most important idea in my scholarship has been questioning the assumptions that the law and social institutions can frequently and easily improve the well-being of the impaired elderly by taking away their abilities to make their own decisions. The laws governing guardianship, surrogate decision-making and provision of elder care presume that it is generally better for the impaired elderly to take away their decision-making authority and give it to a capable and well-intentioned other. The undisputed data in empirical research assessing the actual wellbeing of impaired elderly people indicate that this presumption is most often wrong. The laws’ prescriptions are based on presumptions about human psychology that are provably false, resulting in serious, unintended consequences. Bringing the insights of gerontology and psychology into elder law significantly will change many of our legal systems.
Upcoming: Defining, educating and effectively instilling new and better ways of dealing with impaired elders in our legal and social systems.