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Wake Forest University School of Law’s Faculty News and Notes January 2009

Following is the most recent roundup of Wake Forest University School of Law’s faculty research, publications, presentations, honors and awards.

Dean Blake Morant participated in January’s ninth annual Winston-Salem State University and Wake Forest University joint Martin Luther King Jr. Celebration called “On Common Ground: One Dream Can Change the World.” As the new chair of the American Bar Association Committee on Diversity, Morant led the meeting of that committee during the AALS conference. And as a member of the faculty of the ABA’s New Deans’ Seminar, Morant met during AALS to help plan the seminar, which will be held in Jackson Hole, Wyo., in May. Morant is a contributor to a new book, “Law Touched Our Hearts: A Generation Remembers Brown v. Board of Education.” The book, published by Vanderbilt University Press and released in February, comprises accounts from those who attended public school soon after Brown and saw the course of their lives and society change.

Executive Associate Dean for Academic Affairs and Professor Ron Wright was invited as a commentator on the papers that the ABA Commission on Effective Sanctions discussed at a December 2008 “Roundtable on Second Look Sentencing Reforms,” based on his scholarly work dealing with state sentencing institutions. Justice Anthony Kennedy joined in the deliberations of the group, and members of the Transition Team for the Obama administration were present to observe the roundtable discussion. Wright delivered a speech at the 2008 California Summit of Judicial Leaders in Monterey. He spoke to the judges, legislators, and corrections officials about “Sentencing Commissions and Community Corrections.” Wright and Professor Mark Hall presented some of their research at the University of Chicago in October. They addressed the “Seminar on Judicial Behavior,” a joint enterprise of the University of Chicago and Northwestern University, led by Professors Richard Posner, William Landes, Lee Epstein, and James Lindgren. They spoke about the use of “content analysis” (a classic social science analytical tool) when applied to judicial opinions.

Associate Dean for Research and Development and Professor Sid Shapiro presented his paper, “The Social Costs of Dangerous Products: An Empirical Investigation,” on Nov. 14, 2008, at the American University Law School in Washington, D.C. Shapiro spoke at the fall meeting of the Regulatory Law and Practice Section of the American Bar Association (ABA) on Oct. 16, 2008. His topic was “Regulatory Metrics.”Shapiro and Professor Rena Steinzor, University of Maryland School of Law, have recently proposed “regulatory metrics” as a new method of holding the government accountable. Their idea is to establish empirical baseline measurements of agency performance that can be used by Congress and the public to evaluate agency performance. Professor Shapiro’s talk was part of a panel discussion of government accountability. The other speakers were Professor Steinzor; Dr. Beryl Radin, Scholar in Residence, School of Public Affairs, American University; and Neil Eisner, Assistant General Counsel for Regulation and Enforcement, U.S. Department of Transportation, Washington, D.C.

Litigation Clinic Director and Clinical Professor Carol Anderson coordinated a presentation on “The Future of the Criminal Justice System in America” at Wake Forest Law School on Sept. 10, 2008.The panelists were Peter Gilchrist, the Mecklenburg County District Attorney, and Wade Smith, a prominent criminal defense attorney of Tharrington Smith in Raleigh. Gilchrist and Smith were selected because they were just honored by the N.C. Bar Association as the first recipients of awards established in their names for service to the profession in the areas of criminal prosecution and defense. Each made introductory remarks, then responded to relevant questions posed by Anderson’s Litigation Clinic students. The entire 1L class attended as part of their professionalism series. In the classroom, Anderson initiated a new three-week component on focus groups in the fall 2008 semester. All clinic students first served as a focus group for a real case at the law office of Comerford & Britt, LLP. The following week, six students returned to the firm and acted as presenters to a focus group drawn from a representative cross-section of the jury. The following week mentoring attorneys Tom Comerford and Cliff Britt came to class to “deconstruct” the process. Students gave enthusiastically positive feedback about the high quality of this pedagogical method.

Professor Jennifer Collins’ latest article, Punishing Family Status, was published in the December 2008 edition of the Boston University Law Review.  The themes developed in this article, which was co-authored with Dan Markel and Ethan Leib, will be further explored in a forthcoming book to be published by Oxford University Press later this year.

Professor Chris Coughlin spoke in summer 2008 about medical research in developing countries at the Wake Forest University School of Medicine. Coughlin wrote a grant to the Wake Forest University Ethics and Leadership fund that supported a Health Policy Forum on campus that brought health policy experts, including Professor Mark Hall, to discuss health care reform measures discussed by candidates in the upcoming election. Coughlin was a conference planner for the Wake Forest University Women’s Forum’s recent leadership seminar.

Professor Michael Kent Curtis participated in a conference at the Drake Law School on forgotten constitutional provisions. His article, “The Fourteenth Amendment, Recalling What the Court Forgot,” has been published in the Drake Law Review. The symposium on April 5, 2008, mainly focused on the 9th Amendment and the Privileges or Immunities Clause of the 14th Amendment. Other participants included Daniel Farber, Randy Barnett, Kurt Lash, and Rebecca Zeitlow. In September, Curtis spoke at a symposium on President Andrew Johnson at a conference and sponsored by the National Parks Service and Tusculum College near the Andrew Johnson historic site in Greenville, Tenn. Curtis spoke about Andrew Johnson and the Thirteenth, Fourteenth, and Fifteenth Amendments. Other speakers included Eric Foner, the leading historian of Reconstruction, and the Editor of the Andrew Johnson Papers. Curtis wrote an amicus brief in the 9th Circuit Case of Nordyke v. King. The law professors’ brief was limited to the history relevant to full incorporation of the Bill of Rights (including the 2nd Amendment Right to Bear Arms) as a limit on the states under the 14th Amendment’s so far nearly defunct Privileges or Immunities Clause. On Oct. 2, Curtis participated in a Liberty Fund discussion of the Nineteenth Century anti-slavery constitutional theories of Lysander Spooner held in Boston, Mass. Also in October, Curtis participated in the Wake Forest Law Review symposium organized by Professor Shannon Gilreath. The article Curtis discussed is entitled “Be Careful What You Wish For: Gays, Dueling High School T-Shirts, and the Perils of Suppression.” In November, Curtis presented a paper and appeared on a panel at the American Constitution Society in Philadelphia, Pa. The subject was congressional enforcement of the 14th and 15th Amendments. In January, Curtis presented the key note address at a conference on Incorporation of the Bill of Rights as a limit on the states under the Fourteenth Amendment at the University of San Diego School of Law. He gave a key note address in February on the subject of incorporation of the Bill of Rights at a conference at Hastings Law School.

Professor Timothy Davis has published: The Business of Sports Agents (with Kenneth L. Shropshire) (2d ed. Univ. of Pennsylvania Press 2008); Race and Sports in America: An Historical Overview, 7 Vir. Sports & Enter. L. J. 291 (2008) (symposium contribution); Tort Liability of Coaches for Injuries to Professional Athletes: Overcoming Policy and Doctrinal Barriers, 76 UMKC L. Rev. 571 (2008) (symposium contribution); and, Coparticipant and Coaches’ Liability in High School and College Sports, CLE Program “Amateur Sports and the Law” sponsored by the North Carolina Bar Association (with David Rea and Taylor Fleming). Davis attended a meeting of the Contracts Drafting Committee of the National Conference of Bar Examiners, and presented: Race and Sports in America: An Historical Overview, Sports Law Symposium, School of Law, University of West Virginia; and, Coparticipant and Coaches’ Liability in High School and College Sports, CLE Program “Amateur Sports and the Law” sponsored by the Sports and Entertainment Law Section of North Carolina Bar Association.

Professor Miki Felsenburg has been appointed a member of the Legal Writing Institute’s Committee on Cooperation Among Clinical, Pro Bono, and Legal Writing Faculty. Felsenburg also has been appointed as the public member of the American Board of Specialty Nursing Certification.

Professor Shannon Gilreath organized the Wake Forest Law Review’s inaugural fall symposium, on the topic of “Equality-based Perspectives on the Free Speech Norm: 21st Century Considerations.” The Oct. 31 symposium of well-known national and international scholars was designed as an international and interdisciplinary discussion of how a commitment to free speech should intersect with a commitment to equality in a multi-valued constitutional order committed also to diversity and multiculturalism. Gilreath completed an article entitled “Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy, Dominance, and Substantive Equality Theory,” which will be published in spring ’09 in the Women’s Rights Law Reporter. In September, Gilreath gave the university’s Constitution Day address, on the subject of “The Sexual Politics of the First Amendment.” Gilreath has also completed an article “Tell Your Faggot Friend He Owes Me $500 for My Broken Hand:” Thoughts on a Substantive Equality Theory of Free Speech, which will be published in the Spring ’09 Wake Forest Law Review.

Professor Sue Grebeldinger gave CLE presentations on North Carolina Civil Procedure in Raleigh on Sept. 5 and Asheville on Oct. 24.

Professor Michael Green presented Professor Dan B. Dobbs with the 2009 William L. Prosser award at the Association of American Law Schools’ Annual Conference Torts Section “Foreign Tort Law: Beyond Europe” on Jan. 9 in San Diego. With co-authors, Green completed and submitted a draft to the National Academies of Science and the Federal Judicial Center of what will be become the Reference Guide on Epidemiology for the third edition of the Reference Manual on Scientific Evidence, published to assist judges when confronting scientific evidence. A paper, entitled “The Insubstantiality of the ‘Substantial Factor’ Test for Causation,” was published in the Missouri Law Review also with co-authors. Along with Marc Franklin and Jonathan Cardi, Green authored the 24th edition of Gilbert’s Tort Law Summaries. In January, Green attended a meeting of a committee formed by the National Judicial College to prepare a resource manual for state court judges on complex litigation. In November, Green attended and made a presentation at a symposium at Brooklyn Law School regarding the tenth anniversary of the Products Liability Restatement: Was it a Success? As co-reporter for the Restatement (Third) of Torts: Liability for Physical Harm, Green is organizing the Third Restatement of Torts Symposium, co-sponsored by the University of Texas School of Law and the American Law Institute, at Wake Forest in April.

Professor Mark Hall published an article in JAMA on “The Professional Ethics of [Patient] Billing and Collections.” He gave talks on health care reform at Wake Forest and at East Carolina University, on “Property Rights in Medical Information” at Graylyn Conference Center and the University of Texas Law School, and on “Content Analysis of Judicial Opinions” at the University of Chicago Law School.

Professor John Knox has been working with an environmental group, the Center for International Environmental Law, to file a submission to a United Nations human rights body that is looking at the effects of climate change on human rights. Knox was invited to speak to representatives of governments, international organizations, and non-profit groups on the application of human rights law to climate change on Oct. 23, 2008, at the United Nations in Geneva.

Professor Kate Mewhinney is co-planner for the annual CLE of the Dispute Resolution Section of the N.C. Bar Association. Mewhinney is a Certified Superior Court Mediator and a member of the governing council of the Section. Mewhinney also chairs a committee of the National Academy of Elder Law Attorneys, which works to attract law students in this growing field of practice. She and her committee are pleased that more than 50 law students from all over the country are attending the organization’s annual institute in Kansas City, Mo.

In July 2008, Professor Joel S. Newman presented a paper entitled “Islamic and Jewish Perspectives on Interest” at a seminar: “Venice, the Jews, and Italian Culture.” The seminar took place in Venice, Italy. The 4th edition of his casebook, “Federal Income Taxation: Cases, Problems and Materials,” recently came out.

Professor Alan Palmiter with Professor Ahmed Taha finished a paper for the Journal of Financial Transformation, an economics journal that collects the top financial articles from around the world, each issue prefaced by essays of Nobel-laureate economists. Their article “Mutual Fund Investors: Sharp Enough?” explores the various profiles of fund investors presented by the industry, the SEC and the finance literature. A fuller version of the article is being published by the Columbia Business Law Review. Palmiter also completed an article for a symposium at Brooklyn Law School entitled “Staying Private: Institutional Investors in Public Markets.” The article, presciently, observes that private markets (like those for subprime mortgages) have numerous deficiencies compared to public markets, and have probably peaked. Palmiter with Frank Partnoy of San Diego School of Law is finishing a new casebook for West/Thomson on corporate law. The book, part of a new interactive casebook series, will be available in both print and electronic versions. To engage modern law students, it will contain more graphs, charts and explanatory boxes, a break from the text-heavy traditional law casebook. To attract modern law professors, it will come with PPT slides with pictures, diagrams and even jokes.

Professor Wendy Parker published Desegregating Teachers in Washington University Law Review. The article is an empirical examination of the segregation of both teachers and students and argues that everyone, including the Supreme Court, should recognize the inequality of these segregated schools. Parker participated in a panel discussion on Oct. 30 following Winston-Salem State University’s J. Alston Atkins Memorial Lecture in Constitutional Law. The lecture was given by Morris Dees, co-founder and chief legal counsel of the Southern Poverty Law Center of Montgomery, Ala.

Professor Suzanne Reynolds spent a year on the campaign trail in a bid for a seat on the North Carolina Supreme Court, narrowly losing the election. She talked with local bar association groups across the state – in Buncombe, Durham, Forsyth, Guilford, Henderson, Lincoln, and Wake counties – as well as with the attendees of the North Carolina Bar Association at its annual convention in June. Other trips took her to law offices and courthouses across the state; civic groups who met to endorse candidates; and lots of political events. She talked at candidate forums and participated in a number of televised question and answer sessions. She continued teaching throughout the experience, including four weeks in Venice in July. For two of those weeks, she taught comparative constitutional law with Supreme Court Justice Ruth Bader Ginsburg. For the final two weeks, she taught comparative family law to the Wake Forest and Italian students enrolled in the course. In September, Reynolds was the keynote speaker in a national conference at the University of Missouri-Kansas City Law School entitled “Red State v. Blue State: The Judicial Role in an Era of Partisanship.”

Professor Kami C. Simmons participated at AALS in January as part of a panel entitled “New Legal Realism.”  The panel examined the differences and similarities in the approaches to a new legal realism.  Participants included senior and junior scholars associated with widely divergent subject matter areas including international law, constitutional law, trade, and criminal law.  As part of the panel, Simmons presented her current work-in-progress entitled Rethinking Reform: New Governance and New Solutions for Federal Police Reform, which advocates applying “new governance” theories to police reform. Simmons has published The Politics of Policing: Ensuring Stakeholder Collaboration in the federal Reform of Local Law Enforcement Agencies, 98 J. Crim. Law and Criminology  489 (2008).  This article explored innovative methods to achieve broad stakeholder participation in reforming local law enforcement agencies.

Professor Omari Simmons has published an article titled Branding the Small Wonder: Delaware’s Dominance and the Market for Corporate Law, 42 U. Rich. L. Rev. 1129 (May 2008). This article asserts the Delaware incorporation decision is analogous to the purchase of a branded-product and how branding effects, in part, explain Delaware’s longstanding dominance as the nation’s premier site of incorporation. On Oct. 30, 2008, Simmons presented a new article titled Taking the Blue Pill: Credence Characteristics and the Matrix of Executive Compensation Reform at the LSU Paul M. Hebert Law Center in Baton Rouge, La. The article explores how executive compensation reform operates as a mechanism for lawmaker diversion and responsibility-shifting that diverts corporate constituent and scholarly attention away from more important corporate governance and socio-economic issues.

Professor Margaret H. Taylor has been elected to The American Law Institute (ALI). Taylor is among 79 newly elected members of ALI, which now has a membership of 4,152.

Professor George Walker chaired a panel discussion, Implications of U.S. Acceptance of the 1982 Law of the Sea Convention and the 1994 Agreement, at the International Law Weekend annual meeting of the International Law Association (American Branch) in New York City on Oct. 18, 2008.Walker chairs the American Branch Law of the Sea Committee and is an Executive Committee member. He also published an article, “Family Law Arbitration: Legislation and Trends,” in volume 21 of the Journal of the American Academy of Matrimonial Lawyers, pages 521-652. Walker was areporter for the Academy-sponsored Model Family Law Arbitration Act, published on the Academy web site.

Dean Emeritus Robert Walsh was elected president of the American Inns of Court for a two-year term in late summer 2008. He chaired his first trustees meeting of the American Inns in Washington, D.C., and moderated the big annual Celebration of Excellence dinner at the United States Supreme Court hosted by Justice Samuel Alito during which there was a major award ceremony. He was also appointed by Chief Justice John Roberts to a five-year term on the Federal Judicial Center Foundation Board.