Faculty Notes Jack Apol Professor Jack Apol’s course in negotiation arts, created in 1980, currently is being taught by Adjunct Professor Michael Dodge. The course emphasizes development of competitive negotiation skills and includes components of arbitration and mediation, a process in which a completely neutral person facilitates discussion between parties in disagreement. Rather than evaluating the case, the mediator identifies issues and helps explore solutions in an effort to promote a mutually acceptable settlement. Professor Apol recently became one of a select number of lawyers eligible to serve as a general civil mediator under the Michigan Rules of Court. He invites inquiries at 517/432-6891 or apolj@law.msu.edu. Debra Bassett Professor Debra Bassett’s article, “The Hidden Bias in Diversity Jurisdiction,” was published in the Washington University Law Quarterly in July 2003, and her co-authored 2003 Supplement to “Cases and Materials on Civil Procedure” (with Crump et al.) was published in August 2003. During the summer of 2003, Professor Bassett completed and placed three law review articles: (1) “U.S. Class Actions Go Global: Transnational Class Actions and Personal Jurisdiction,” which will appear in the Fordham Law Review; (2) “When Reform Is Not Enough: Assuring More than Merely ‘Adequate’ Representation in Class Actions,” which will appear in the Georgia Law Review; and (3) “The Politics of the Rural Vote,” which will appear in the Arizona State Law Journal. Professor Bassett presented one of her summer articles, “When Reform Is Not Enough: Assuring More than Merely ‘Adequate’ Representation in Class Actions,” at the AALS Annual Meeting in Atlanta, Georgia, in January 2004. She also discussed “Civil Procedure and Popular Culture: Using Film in Civil Procedure Classes” at the AALS Conference on Civil Procedure in New York City in June 2003. . Upcoming Faculty Symposia • February 20-21: Intellectual Property Scholars’ Round Table, hosted by Professor Peter Yu at MSU-DCL • March 18-19: Health Law Conference with MSU Colleges of Human Medicine, Osteopathic Medicine and Nursing at MSU • March 26-27: Intellectual Property, Sustainable Development and Endangered Species, hosted by Professor Peter Yu at MSU-DCL • April 16-17: Multi-Jurisdictional and Cross-Border Class Actions, hosted by Professor Debra Bassett at MSU-DCL Professor Bassett is organizing and chairing a class action symposium titled “Multi-Jurisdictional and Cross-Border Class Actions” on April 16-17, 2004, at the law college. Participants include Edward H. Cooper (University of Michigan), Deborah R. Hensler (Stanford), Kevin R. Johnson (University of California, Davis), Richard L. Marcus (Hastings) (tentative), George A. Martinez (Southern Methodist University), Linda S. Mullenix (University of Texas), Rex R. Perschbacher (University of California, Davis), Judith Resnik (Yale) (tentative), Linda J. Silberman (New York University), Garry D. Watson (York University, Osgoode Hall School of Law), Tobias Barrington Wolff (Stanford), and Patrick Woolley (University of Texas). Mary Bedikian Professor Mary Bedikian, ’80, conducted a workshop for labor and employment practitioners at the annual national meeting of the Association of Labor Relations Agencies. The workshop focused on how practitioners can enhance their advocacy skills in public sector arbitration. In September, Professor Bedikian was invited to present a paper, “State of the Law–ADR,” at the Annual Meeting of the ADR Section-Michigan. Jointly authored by Professor Bedikian and Adjunct Professor George T. Roumell, Jr., the paper provides an overview of federal and state legislative developments in ADR, and summarizes and critiques the decisions of the United States Supreme Court, the Sixth Circuit Court of Appeals, and various federal circuit and state supreme courts that released decisions of import in the field of arbitral jurisprudence. Of particular note was the Supreme Court’s June 23, 2003, decision in which the Court held that, where an arbitration agreement is silent regarding the availability of class-wide relief, an arbitrator, and not a court, must decide whether class relief is permitted. Susan Bitensky Professor Susan Bitensky has been invited to present a paper at Loyola University Chicago’s March 2004 symposium titled “Race in Education Policy: A Constitutional Examination.” She has also been elected to the Board of Directors of CASA (Court Appointed Special Advocates) of Ingham County, an organization dedicated to giving abused and neglected children a voice in family court proceedings arising out of the children’s victimization. Terence Blackburn Dean and Professor of Law Terence Blackburn was a panelist at the Association of American Law Schools Section on North American Cooperation, on the topic, “The Americanization of Canadian Legal Education.” Craig Callen Professor Craig Callen and his co-author, Ronald J. Allen, John Henry Wigmore Professor at Northwestern, completed an article titled “Teaching Bloody Instructions: Civil Presumptions and the Lessons of Isomorphism,” published in the Quinnipiac Law Review. The article is one of two that grew out of a workshop the two professors conducted on burdens of proof and presumptions at the AALS Faculty Development Conference on Evidence during June 2002 in Arlington, Virginia. Professor Callen finished a version of a paper titled “Rationality and Relevancy: Conditional Relevancy and Constrained Resources,” which he presented at the Visions of Rationality in Evidence Law conference at MSU-DCL in April 2003. (All of the papers from that conference will be published in the Michigan State DCL Law Review.) In that article, he argues that, while conditional relevancy doctrine under Federal Rule of Evidence 104 conflicts with the theory of minimal relevancy, it is sensible if one analyzes relevancy in terms of social and psychological costs and benefits of admitting evidence. He continues research for his volume in the New Wigmore on Evidence series, focusing most recently on presumptions, conditional relevancy and judicial notice. Amy Christian Robert McCormick The video documentary “Toil, Trouble, and Triumph: The Legacy of Michigan Labor Lawyers,” written and produced by Professors Amy Christian and Robert McCormick in early 2003, was shown at the annual meeting of the State Bar of Michigan in Lansing. The video, directed and co-produced by Professor Lisa Whiting-Dobson of the MSU College of Communication Arts & Sciences, focuses on the contribution of Michigan lawyers to the development of labor and employment law. In November 2003, MSU-DCL aired the video to the university community and friends of the college. Professors Christian and McCormick are currently adapting it for public television throughout the state. This adaptation will focus on the development of labor and civil rights law in Michigan. Video copies are available for $25 each from David Khorey, chairman of the State Bar Labor & Employment Law Section, at dekhorey@varnumlaw.com or from Daniel Bretz at dbretz@bradyhathaway.com. Julian Cook In October 2003, Professor Julian Cook participated in Reducing the Corrections Budget Through Effective Public Defense, a public forum sponsored by the MSU Institute for Public Policy and Social Research, the School of Criminal Justice, and the Michigan Council on Crime and Delinquency. Michigan legislators, legislative staff, state government agency representatives, and members of the public attended the forum. Professor Cook’s article, “All Aboard! The Supreme Court, Guilty Pleas and the Railroading of Criminal Defendants,” was accepted for publication in the University of Colorado Law Review. Catherine Dwyer From January to July 2003, Professor Catherine Dwyer served as legal education reform specialist with the ABA’s Central European and Eurasian Law Initiative (CEELI). Under two U.S. A.I.D. grants, she initiated legal education reform projects in Uzbekistan and Kyrgyzstan. Professor Dwyer was chief draftsperson of a five-year curriculum proposal for the law department of the American University of Central Asia. As chair of the Law Curriculum Reform Committee, she presented the proposed curriculum to the university’s board of trustees. The proposal calls for a full revision of the existing curriculum, taking into account national Ministry of Education standards and needs identified during an assessment study of the legal marketplace, educators and students. Emphasis was placed on integrating skills courses throughout and designing courses to incorporate greater writing and problem-solving analysis by students. The program also requires trustee financial support of a department-wide collegial process for creating legal materials on Central Asia laws, using various sources, problems and supporting interactive teaching methodologies. The curriculum was accepted at the end of September 2003 and will be implemented in 2004. Professor Dwyer also was a member of the Ministry of Education’s Commission for Revision of the National Standards for Legal Education in Kyrgyzstan. She was invited by the Minister of Education to be the sole international member of the commission, which submitted its work to the Ministry of Education for final review before sending it to the Kyrgyz Parliament for enactment. As part of her responsibilities to CEELI, Professor Dwyer wrote a model for conducting a legal education assessment to be used by law schools in gathering information and evaluating existing curriculum. The assessment model, developed in connection with an assessment project of Tashkent State Law Institute in Uzbekistan, calls for questionnaires, workshops, background information on curriculum reform, and guides for facilitators. CEELI is currently using the model as part of its training program for legal education reform specialists, and implemented it in Azerbaijan and Georgia during the fall of 2003. In addition, Professor Dwyer gave a presentation titled “Improving the Quality of Legal Education through Independent Assessment and Accreditation of Law Programs” at the Education Reform Conference called by Oskar Akiev, President of Kyrgyzstan. The conference addressed reform in the two areas of economics and legal education, and Professor Dwyer’s presentation was incorporated in full in the Conference Report submitted to the President. David Favre In September 2003, Professor David Favre attended the annual conference of the Purdue University Veterinarians School. He organized and presented a moot trial that allowed the 500 conference participants to experience a mini-version of a veterinarian malpractice trail, complete with judge (Professor Favre), attorneys, expert witnesses and a jury. In October, he presented a speech at the Lewis and Clark Law School’s annual Animal Law Conference on “Integrating Animal Interest into the Legal System.” Melanie Jacobs In June, Professor Melanie Jacobs was a speaker at the International Society of Family Law, North American Conference, in Eugene, Washington. She presented a paper titled “Using Functional Parenthood to Make the Case Against Paternity Fraud Laws,” in which she argues that men who have functioned as a father upon the mistaken belief that they are a child’s biological father should not be able to disestablish their parentage years later, upon learning that they have no biological connection to the child. Rather, because such men have functioned as parents and assumed all of the responsibilities and benefits of parenthood, they should continue in their parental role. This view comports with the emerging trend of recognizing functional families, and places less importance on mere genetics (see related article ). Professor Jacobs also spoke at a conference titled “Theory Meets Practice: A Conversation Among Litigators Representing Lesbian and Gay Parents and Academics Who Write About Their Legal Issues,” held at American University’s Washington College of Law in October. She discussed the use of equitable estoppel to establish legal parentage under the Uniform Parentage Act for non-biological lesbian and gay parents. Brian Kalt Professor Brian Kalt commented on the University of Michigan affirmative action decision on WJR and WKAR radio, and in the Detroit News. His article, “The Exclusion of Felons from Jury Service,” was published by the American University Law Review in October 2003. He also discussed the topic of felon-jurors on a radio show hosted by MSU-DCL trustee Charles Langton, ’87. Elliot Spoon Associate Dean Mae Kuykendall, with Professor Elliot Spoon, participated in meetings with a six-member Subcommittee of the Nonprofit Corporations Committee, Business Law Section, Michigan State Bar, to refine provisions of the updated draft of the amendments to the Nonprofit Corporation Act prepared by Dean Kuykendall. It is anticipated that, once the Subcommittee’s work is approved by the Committee, legislation based on the Subcommittee’s work will be offered for consideration. Mae Kuykendall Dean Kuykendall’s article titled “Liberty in a Divided and Experimental Culture: Respecting Choice and Enforcing Connection in the American Family” appeared in the UCLA Women’s Law Journal. In addition, her article titled “Reflections on a Corporate Law Draftsman: Ernest L. Folk’s Lessons for Writing and Judging Corporate Law” is forthcoming as the lead article in the Rutgers Law Journal, with an expected publication date of March 2004. In addition, the MSU-DCL Board of Trustees formalized her appointment as associate dean at their September meeting. Donald Laverdure In November 2003, Professor Donald Laverdure presented a paper at Brown v. Board of Education Revisited: 50th Anniversary Symposium—A First Nation’s Perspective at Washburn School of Law in Topeka, Kansas. This past summer, Professor Laverdure served as chairperson of the Crow Tribal Judicial Ethics Board during a judicial impeachment hearing. On behalf of the Board, he made evidentiary decisions and ultimately drafted the written decision that applied the ABA Model Rules of Judicial Conduct and Tribal Code provisions on conflicts of interest, and summarized the ongoing debate of qualifications of members of the Crow Judiciary. In his role as chief justice of the Crow Court of Appeals, Professor Laverdure completed several decisions—including cases dealing with government employees’ rights to damages upon termination, determining the appropriate forum, adult or juvenile court, for prosecution of an accused youth, and adopting and enforcing principles of comity for decisions of other tribal courts. In addition, he testified before the Crow Legislature on several important issues including language fluency requirements of Crow judges, impeachment processes, separation of powers of the Crow Tribal government, and overall issues impacting the Crow Judiciary. This past summer, Professor Laverdure was the sole speaker on three separate occasions (each for two consecutive business days) for the Falmouth Institute, the leading provider of seminars on issues affecting Indian Country. He presented two topics in Reno, Nevada, and Rapid City, South Dakota, to tribal government leaders and personnel: “Taxation in Indian Country” and “Essentials of Indian Law.” In March 2003, Professor Laverdure spoke about the U.S. Patriot Act and Indian Country as well as the implications of a federal proposal to repeal and/or revise various sections of Title 25 of the U.S. Code, at the Indigenous Nations Law Symposium held at the University of Iowa College of Law. Robert McCormick Professor Robert McCormick’s longstanding interest in the NFL’s draft-eligibility rule has recently generated significant media attention in light of its application to Maurice Clarett, a sophomore star running back now at Ohio State University. The NFL rule currently precludes any player less than three years removed from high school from entering the NFL draft. Professor McCormick first wrote about this rule with Professor Emeritus Matthew C. McKinnon in their 1984 article titled “Professional Football’s Draft Eligibility Rule: The Labor Exemption and the Antitrust Laws,” published in the Emory Law Journal. In that article, the professors argued the NFL rule violates the Sherman Antitrust Act and is not saved by the labor exemption to the antitrust laws. The issue has recently arisen again with regard to Maurice Clarett, a gifted football player. He was voted the number one running back in college football by The Sporting News in its College Football Yearbook. In addition, he was a first-team All-Big Ten selection and the Big Ten Freshman of the Year. He finished his freshman year with 1,237 yards and 18 touchdowns and led his team to the national championship against the University of Miami. Although Clarett is sufficiently talented to earn millions of dollars playing for the National Football League, the NFL owners have agreed among themselves not to permit him, or any other underclassman, to enter the draft. McCormick asserts their rule against early entry is an anticompetitive restraint on trade, undertaken to protect the free farm system of college football. Professor McCormick has again argued that the NFL draft-eligibility rule is illegal in his recent article titled “Open Letter to Maurice Clarett: Why You May Turn Professional Now,” published on August 17, 2003, in the Sunday New York Times. He has also commented on the legal aspects of the rule for a wide variety of news and sports media. On August 5, 2003, he appeared on the Emmy award winning ESPN television show, “Outside the Lines,” hosted by Bob Ley, and on September 2, 2003, he was interviewed as a guest on “Rome is Burning,” hosted by Jim Rome. That program also is broadcast by radio nationwide and over Armed Services Radio around the world, serving more than two million listeners. On August 18, 2003, Professor McCormick was a guest on Mitch Albom’s nationally syndicated ABC radio show, “Monday’s Sports Albom.” . Fall 2003 Programs for MSU-DCL Faculty • Inequality of Bargaining Power, presented by Professor Dan Barnhizer, MSU-DCL College of Law • Dredd Scott and International Law, presented by Professor Mark Janis, University of Connecticut College of Law • Incorporating Religion in a Constitutional System: Sharia and Nigeria, presented by Philip Ostien, Senior Lecturer of Law, University of Jos, Nigeria • The General Character of Turkish Law, presented by Dr. Feriha B. Tanribilir, Associate Professor of Law, Gazi University In addition, he has been interviewed by ABC/Fox TV (Columbus, Ohio), WILX-TV Channel 10 (Lansing, Michigan), WKAR-AM (MSU public radio), WDFN-AM (Detroit), Lansing (Michigan) radio stations WJIM-AM, WVFN-AM and WQTX-FM, the Miami Herald, the Fort Meyers News Press, Bloomberg News Service, the Black Athlete Sports Network (an online daily), the Arizona Republic, USA Today, the State News (MSU) and a number of online newspapers. On September 23, 2003, a lawsuit was filed on behalf of Clarett against the National Football League in the Federal District Court for the Southern District of New York, asserting the illegality of the NFL’s draft eligibility rule and seeking un-specified damages. Professor McCormick serves as co-counsel, along with Alan C. Milstein, Esq., of Sherman, Silverstein, Kohl, Rose & Podolsky, in that suit. Questions about the NFL draft-eligibility rule may be directed to Professor McCormick. In September 2003, Professor McCormick also participated as a panelist for the Labor and Employment Law Section at the annual meeting of the State Bar of Michigan in Lansing. He discussed issues surrounding arbitration of Family and Medical Leave Act employment disputes in the non-union setting. Nicholas Mercuro In April 2003, Professor Nicholas Mercuro and Professor Margaret Oppenheimer of DePaul University signed a book contract with M.E. Sharpe to edit a new book titled Law & Economics: Alternative Approaches to Legal and Regulatory Issues. They have contributors for 16 chapters, which have been edited and sent to the publisher for an anticipated March 2004 publication date. Professor Mercuro will co-author the introductory chapter, “Law and Economics: Making the Case for a Broader Approach,” with Professor Oppenheimer and will also author another chapter titled “A Comparative Institutional Approach to Law and Economics: Theory and Environmental, Natural Resource, and Land-Use Applications.” Professor Mercuro and co-author Steven G. Medema of the University of Colorado at Denver updated the second edition of Economics and the Law, published by Princeton University Press in 1997. In August 2003, as founder and co-series editor of the book series, The Economics of Legal Relationships, Professor Mercuro signed a contract with Diana Moss, Vice President of the American Antitrust Institute, to publish her new book in his series titled Network Access: Lessons Learned in Regulation and Antitrust. The project’s contributors are experts in economics, law, and public policy and come from academia, government, industry and private practice. In September 2003, Professor Mercuro and Professor Warren J. Samuels, MSU emeritus professor of economics, were invited to guest edit a volume of Journal des Economistes et des Etudes Humaines. They will invite several international scholars to contribute articles to the thematic issue of the journal on the topic, “The Meaning and Role of the ‘Market’ in an Increasingly Globalized World.” Adam Mossoff Before arriving at MSU-DCL in early July, Professor Adam Mossoff spoke at a Washington, D.C., conference, Copyright in the Internet Age, hosted by the Progress & Freedom Foundation and the George Mason University Tech Center. The presentations at the conference are currently being collected for publication in either a book or on the web. Professor Mossoff submitted his essay, “Is Copyright Property? A Comment on Richard Epstein’s Liberty vs. Property,” to the conference organizers. In this essay, adopted from his conference presentation, Professor Mossoff builds upon Professor Epstein’s presentation at the conference that defended copyright as a property entitlement by answering the specific claims made today against protecting copyright entitlements on the Internet or in other forms of digital content. Professor Mossoff also participated in the Michigan State University-sponsored One Book-One Community Program. This year, MSU is hosting panels and events addressing the literary, scientific and ethical issues raised in Mary Shelley’s Frankenstein. Professor Mossoff participated in a panel in late September, which addressed the bioethical and legal issues implicated in Dr. Frankenstein’s creation of his monster. Sharing the panel with several professors from MSU’s Philosophy Department, Professor Mossoff spoke on whether Dr. Frankenstein could have obtained a patent for his creation under the current U.S. patent system. Professor Mossoff presented a paper at an Intellectual Property Colloquium at Tulane University School of Law in late October. Currently, he is assisting Professor Peter Yu in the creation and development of the Intellectual Property and Communication Law Program at MSU-DCL. Sharon Pocock Professor Sharon Pocock, director of the Research, Writing & Advocacy Program and professor of legal writing, published a short essay, “Training Students in the Basics,” in the July 2003 issue of The Second Draft, the bulletin of the Legal Writing Institute. This issue was devoted to the topic, “What Are We Teaching?” In September 2003, Professor Pocock made two presentations at the 2003 Central States Conference on the Teaching of Legal Research, Analysis and Writing, held at Washington University School of Law in St. Louis, Missouri. The conference theme was “Research, (W)riting, & Resumes: Strategies for Pedagogical and Professional Development.” Professor Pocock spoke on the topics, “Expanding Your Repertory as a Teacher” and “Using Teaching Portfolios for Self-Development and Program Development.” Frank Ravitch Professor Frank Ravitch continues work on his book, Law & Religion, a Reader: Concepts, Cases and Theory, to be published by West. His article, “A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause,” will be published in the Georgia Law Review, and his article titled “The Supreme Court’s Rhetorical Hostility: What is Hostility Under the Establishment Clause?” will be published in a symposium issue of the Brigham Young University Law Review. Professor Ravitch spoke at the Education Law Institute in Portland, Maine, in August 2003, at the Central States Law Schools Association Annual Meeting at the University of Toledo College of Law in September, at the Annual Meeting of the International Society for the Social Scientific Study of Religion in October, and at faculty workshops at the Appalachian School of Law and the University of Connecticut School of Law in November. Kevin Saunders Professor Kevin Saunders presented a lecture on the University of Michigan affirmative action cases in September 2003 to the State of Michigan Legislative Service Bureau. In addition, he discussed his book, Saving Our Children from the First Amendment, at Roger Williams University School of Law in October. A pre-publication adapted excerpt of the book, which was published in December by New York University Press, appeared in The Responsive Community and was reprinted in Current. Elliot Spoon Professor Elliot Spoon testified this summer before the Michigan Senate Commerce and Labor Committee on legislation (HB 4764) to amend the Michigan Control Share Act, which regulates acquisitions of shares in publicly held companies and widely held private companies. Professor Spoon also prepared for legislators a paper on the same subject. In this testimony and in the paper, he argued that the proposed amendment to the Act was necessary to correct misinterpretations of the Act and to support the public policy behind the Act, viz. to protect shareholders in connection with changes in management and voting control, and from the coercive aspects of hostile tender offers. HB 4764 was later passed by the legislature and signed into law by Michigan Governor Jennifer Granholm. Peter Yu Professor Peter Yu edited a volume of essays on the recent Supreme Court case on the extension of the copyright term. Titled Extending Mickey’s Life: Eldred v. Ashcroft and the Copyright Term Extension Debate, the book was published by Kluwer Law International and includes commentary by leading intellectual property and First Amendment scholars, including Jane Ginsburg, Wendy Gordon, Marci Hamilton, Robert Merges, Lawrence Lessig and Jerome Reichman, among others. His book chapter, “The Neverending ccTLD Story,” appeared in Addressing the World: National Identity and Internet Country Code Domains, recently published by Rowman & Littlefield. In addition, he published an Intellectual Property & Communications Law Program Occasional Paper on “The Escalating Copyright Wars.” A revised version of this paper will appear in the spring 2004 issue of the Hofstra Law Review. He also published “The Copyright Divide” with the Cardozo Law Review and “Dis-networking Rules in a Networked World” with STS Nexus, an interdisciplinary journal from Santa Clara University. Among his other fall publications are “Four Common Misconceptions About Copyright Piracy” (with the Loyola Los Angeles International & Comparative Law Review) and “SARS and the Patent Race: An Introduction to the ‘Patent Law, Social Policy, and Public Interest’ Symposium” (with the Cardozo Arts & Entertainment Law Journal). Professor Yu was recently invited to guest edit and contribute the lead article to the Fall 2004 issue of the Loyola Los Angeles Law Review, which examines the use of history in intellectual property jurisprudence. He also served as the external examiner in media law for the University of Hong Kong Faculty of Law and judged the prestigious Nathan Burkan Memorial Writing Competition, the national copyright law writing competition sponsored by the American Society of Composers, Authors and Publishers (ASCAP). In May 2003, Professor Yu launched the inaugural annual Chinese Internet research conference at the Annenberg School for Communication at the University of Southern California. The conference subsequently will rotate among Michigan State University-DCL College of Law, the USC Annenberg School for Communication, and the School of Journalism at the University of California at Berkeley. He also spoke at the 2003 Law and Society Association Annual Meeting in Pittsburgh and participated in the Third Annual Intellectual Property Scholars Conference at the University of California at Berkeley, which he co-founded at Benjamin N. Cardozo School of Law with DePaul University College of Law. Earlier this year, he delivered the Spring 2003 lecture for the Quello Center for Telecommunication Management & Law in the College of Communication Arts & Sciences at Michigan State University. He also spoke at the 2003 Northeast Regional Conference of the National Asian Pacific American Bar Association, the globalization conference at Santa Clara University, and the 2003 annual meeting of the Central States Law School Association at the University of Toledo School of Law. He was a commentator at the opening plenary panel at the 11th Annual International Intellectual Property and Policy Conference at Fordham University School of Law.