Thursday, October 03, 2013

          Courting Excellence: Faculty Scholarship Influences U.S. Courts

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          Seated: Professor Richard Marcus and Chancellor & Dean Emeritus Mary Kay Kane. Standing: Professor Geoffrey Hazard

          Professors at UC Hastings wear many hats. In addition to teaching students how to think like lawyers, faculty members contribute to the evolution of the law through their scholarship.

          “Faculty members have made substantial contributions to the development of the law, as demonstrated by the impressive number of court citations they have received over the years,” says former California Supreme Court Justice Joseph Grodin, who taught at UC Hastings before and after his service on the bench. “The law school has some of the country’s top legal minds on its faculty, and the institution values and nurtures quality scholarship.”

          “We write for other academics in order to contribute to a scholarly conversation, but we write for the courts to make an immediate impact on the law as it is applied in real cases,” says Professor Scott Dodson, a civil procedure expert whose writings have been cited by five different federal Courts of Appeal in the last nine years. “We’re trying to speak to both audiences in meaningful ways.”

          The results are demonstrable. Courts across the nation—all the way up to the Supreme Court—often cite the scholarship produced by UC Hastings faculty. Most recently, Professor Rory Little was cited by Justice Samuel Alito at the end of the Supreme Court’s last term, in a sentencing case. “When professors are cited, it shows that they are not only doing their jobs but doing them effectively,” says Associate Dean for Research William S. Dodge.

          Some UC Hastings professors are recognized as the preeminent authorities in their fields, such as David Faigman, Geoffrey Hazard, Mary Kay Kane, John Leshy, Richard L. Marcus, and Roger Park. They have literally written the definitive books on their specialties.

          Hazard has been cited so many times that he says he doesn’t pay much attention to his citation count anymore. Nonetheless, he emphasizes that “it is important for professors to realize that what they say and write will affect courts and legislatures. Legal scholars need to ask themselves: Is it intelligible? Is it useful? It’s very important to be realistic and concrete.”


          Dodge, an expert in international law, played a key role in a case decided by the Supreme Court in 2004. In Sosa v. Alvarez-Machain, the justices confronted a case brought under the Alien Tort Statute (ATS), an old jurisdictional provision that since 1980 had been used to bring international human rights cases in U.S. courts. “I had done a lot of historical work on the ATS,” Dodge says, “so I decided to write an amicus brief, relying on my own work and that of other scholars, to put the statute in historical context.”

          The question in Sosa was whether human rights suits under the ATS required a statutory cause of action. The Supreme Court rejected the positionsof both parties and instead agreed expressly with Dodge’s argument that the ATS was enacted on the understanding that the common law would provide the course of action. Justice Souter also cited one of Dodge’s law review articles, “The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context,” published in the Virginia Journal of International Law in 2002.

          “I thought, ‘My God, somebody’s listening,’” Dodge says. “It was very gratifying.”

          In another human rights case at the Supreme Court, Professor Chimène Keitner wrote an amicus brief on behalf of a group of international law professors, which was later published in a law review. The brief argued that international law does not provide blanket immunity to foreign officials who commit human rights violations. The court followed the approach recommended in the brief, interpreting the Foreign Sovereign Immunities Act not to apply to foreign officials and leaving the remaining common law issues to the lower courts. On remand, the Fourth Circuit adopted Keitner’s position, citing two of her articles in the process. “Chimène Keitner is one of the leading experts on foreign official immunity in the country,” notes Dodge, “so it is no surprise that courts look to her work.” Keitner says, “I was glad they found the analysis useful. The mere fact of citation is not as important as making a contribution.”


          Professor David Faigman, an expert on science policy, scientific evidence, and constitutional law, has seen his work cited repeatedly by the Supreme Court. In U.S. v. Scheffer (1998), the court ruled that, under the military rules of evidence, an airman could not introduce the results of his polygraph test to support his claim that he had not used drugs since enlisting. “It was quite heartening to be viewed as the authority on the subject,” Faigman says, especially as this was the first time the high court had addressed polygraphs.

          In a recent case, Sargon Enterprises Inc. v. University of Southern California (2012), the California Supreme Court essentially adopted Faigman’s position on expert testimony to exclude the “speculative” testimony of an expert. Although his work on expert testimony is widely quoted, Faigman says it is frustrating that his in-depth work on forensic science has not been adhered to by the courts. “The field is in disarray, but the courts continue on,” he says. Nonetheless, he feels vindicated that the National Academy of Sciences reached the same conclusions regarding the forensic identification sciences in its 2004 report.

          Professor Dodson had a similar experience. In Lambert v. Blodgett (2004), the U.S. Court of Appeals for the Ninth Circuit cited one of his articles on habeas review of state court decisions, but chose not to follow his position. The Supreme Court later reversed the Ninth Circuit and adopted Dodson’s reasoning, but did not cite his article. “That was a bit of a letdown,” Dodson says with a laugh, “but ultimately, the goal is to have your ideas make a difference, even if you are not credited with a citation.”


          Faigman is not the only UC Hastings professor on whom state supreme courts have relied. John Leshy, an expert in public lands law, and formerly the top lawyer at the U.S. Department of the Interior, wrote a book 20 years ago on the Arizona Constitution, and recently updated it in a second edition. “I’m pleased that the book sparked interest in the Arizona Constitution in the courts as a meaningful source of law,” Leshy says. Stanley G. Feldman, who was then chief justice of the Arizona Supreme Court, wrote the foreword to the first edition, and the current chief justice, Rebecca White Berch, wrote the foreword to the 2013 edition. The courts have cited Leshy’s book numerous times in decisions.

          Professor Richard Marcus adds that professors contribute to the development of the law in other ways besides writing books and articles. For example, several years ago, he worked on a committee that struggled with the development of electronic discovery. “The California legislature later adopted laws that followed our work,” he says. “We are in the business of evaluating how the courts and legislature use legal rules,” Marcus says. “That’s a big part of what we do.”

          “Law professors are not as pressed for time as litigants and judges,” says Dodge. “We have the luxury of digging into an issue, so we have a responsibility to be useful.”


          Of all the stars on the faculty, three of the most illustrious are Professor Richard Marcus, Professor Emeritus Geoffrey Hazard, and Chancellor & Dean Emeritus Mary Kay Kane. Together, they dominate the field of civil procedure and are nationally recognized experts.

          Professor Hazard’s work has been cited hundreds of times, including 22 times by the U.S. Supreme Court for his writings on civil procedure, federal jurisdiction, and legal ethics. As far back as 1977, the Supreme Court looked to his 1965 Supreme Court Review article, “A General Theory of State-Court Jurisdiction,” in deciding Shaffer v. Heitner, which created a framework for determining when a civil defendant has sufficient minimum contacts with a state for its courts to exercise jurisdiction over the defendant.

          Similarly, Professor Marcus, an expert on civil procedure and evidence, was cited in a 1987 decision penned by then Circuit Judge Ruth Bader Ginsburg. The case, In re Korean Airlines Disaster, arose out of a 1983 incident in which a Russian jet fighter shot down an airliner over the Sea of Japan for allegedly violating Soviet airspace, killing all 269 passengers and crew, including a U.S. congressman. In her opinion, Ginsburg, herself a former professor of civil procedure, cited Marcus’s 1984 Yale Law Journal article, “Conflict Among Circuits and Transfers Within the Federal Judicial System,” several times with approval. “I’m very proud of that,” says Marcus, whose scholarship has also been cited eight times by the U.S. Supreme Court.

          Another prominent member of the faculty who has been cited innumerable times is Chancellor & Dean Emeritus Kane. The Supreme Court cited articles of hers in J. McIntyre Machinery Ltd. v. Nicastro (2011) and Verlinden B.V. v. Central Bank of Nigeria (1983), and has cited her treatise, Federal Practice and Procedure, now in its third edition, a remarkable 55 times. “I’m proud that I’m contributing to the development of the law,” Kane says. “We are members of the legal profession, but we have the luxury of time to think. So we have an obligation to improve the law.”

          Read more from UC Hastings magazine here.

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