May 21, 2013
Jeremy N. Sheff’s paper, Disclosure as Distribution, forthcoming in the Washington Law Review, is now available online. Here is the abstract:
This brief Response to the work of Professors Omri Ben-Shahr and Carl Schneider on mandated disclosure regimes investigates the normative criteria underlying their claim that those regimes are failures. Specifically, it unpacks the pieces of those authors’ implicit cost-benefit analysis, revealing inherently normative judgments about desert and responsibility at the core of their (or any) critique of disclosure regimes. Disclosure regimes may aim to improve human decisionmaking behaviors, but those behaviors are influenced in non-deterministic ways by cognitive capacities that are heterogeneously distributed among subjects of the regimes. Accordingly, any claim regarding the normative desirability of disclosure regimes (or any other regulatory regime that seeks to channel and improve decisionmaking) implicitly rests on judgments regarding individuals’ responsibility for their own capacities. I argue that in evaluating such regulatory regimes, focusing on efficiency through cost-benefit analysis distracts from inescapable and logically prior distributive questions regarding desert and responsibility.
May 15, 2013
Professor Marc DeGirolami’s book, The Tragedy of Religious Freedom (Harvard University Press), was released on Amazon.com earlier this week (official publication date June 1). The Tragedy of Religious Freedom analyzes the First Amendment religion and explores more general questions about the relationship of legal theory and legal practice.
Here’s an excerpt from the Harvard University Press webpage about the text:
When it comes to questions of religion, legal scholars face a predicament. They often expect to resolve dilemmas according to general principles of equality, neutrality, or the separation of church and state. But such abstractions fail to do justice to the untidy welter of values at stake. Offering new views of how to understand and protect religious freedom in a democracy, The Tragedy of Religious Freedom challenges the idea that matters of law and religion should be referred to far-flung theories about the First Amendment. Examining a broad array of contemporary and more established Supreme Court rulings, Marc DeGirolami explains why conflicts implicating religious liberty are so emotionally fraught and deeply contested.
Twenty-first-century realities of pluralism have outrun how scholars think about religious freedom, DeGirolami asserts. Scholars have not been candid enough about the tragic nature of the conflicts over religious liberty—the clash of opposing interests and aspirations they entail, and the limits of human reason to resolve intractable differences.
Here’s what two noted law and religion scholars have said about the text:
“The Tragedy of Religious Freedom is a first-rate contribution to the law-and-religion conversation. This conversation—how to think about, and how to effectively protect in law, religious freedom in a constitutional democracy—is a lively and timely one, and DeGirolami is an impressive participant.”—Richard W. Garnett, Notre Dame Law School
“A sophisticated and thoughtful book, which offers fresh insights on a central question of religious liberty.”—Philip Hamburger, author of Separation of Church and State
Congratulations, Marc. Look out for upcoming events for The Tragedy of Religious Freedom on this blog.
May 6, 2013
Eva E. Subotnik’s article, Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings, co-written with June M. Besek, will appear in the Columbia Journal of Law & the Arts next spring. Here’s the abstract:
Amidst the waves of cutting-edge technological innovation affecting access to music, the eyes and ears of the music industry, library associations, policy makers and others are focused on a legislative decision made some four decades ago. Specifically, these parties are staking out their positions on the possibility of extending federal copyright protection to pre-1972 sound recordings. Those sound recordings are currently protected by a patchwork of state laws, which will not be preempted by federal copyright until 2067, when all pre-1972 sound recordings will enter the public domain.
The U.S. Copyright Office recently issued a report recommending that federal law be amended to bring pre-1972 sound recordings under federal copyright protection in the near future. The Office’s proposal would result in a shorter term of protection for some recordings, and effect other changes in the rights and responsibilities of right holders and users of pre-1972 sound recordings. This article examines the constitutional implications of such a change. In particular, we consider whether, in the face of a challenge that might be brought by affected stakeholders, such a legislative amendment could violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution.
April 19, 2013
Yesterday Leiter’s Law School Reports posted the results of a survey of over 200 of its readers asking “which areas of law deserve more attention in the legal academy?” The top 10 subjects were:
- Consumer Law
- Energy Law/Natural Resources Law/Water Law
- Employment Law
- Alternative Dispute Resolution
- Immigration Law
- Family Law
- Insurance Law
- Comparative Law
- Elder Law
- Wills, Trusts & Estates
What was immediately apparent to me as I read through this list was how many of these areas are already strengths at St. John’s Law School.
My co-blogger, Jeff Sovern, is one of the leading consumer law scholars in the country. He has co-authored a casebook in the field, written numerous articles on a wide variety of consumer law topics, and founded the Consumer Law & Policy Blog.
St. John’s is also home to the Center for Labor and Employment Law. Founded and directed by David Gregory, the center is a forum where students, practitioners and scholars come together to explore the practice and theory of labor and employment law.
Paul Kirgis founded the Hugh L. Carey Center for Dispute Resolution, which he runs with Elayne Greenberg. The Carey Center is a leader in the growing field of alternative dispute resolution, offering courses, clinics, and experiential learning to students, hosting scholarly programs, and providing professional training and other forms of outreach to the community. Paul is one of the leading scholars in the field (you can find some of his publications here) and is a regular contributor to Indisputably, the ADR Prof Blog.
On the clinical front, we have the Consumer Justice for the Elderly: Litigation Clinic. Under the direction of Ann Goldweber and Gina Calabrese, the clinic students represent low-income, elderly Queens residents in cases involving predatory lending, contractor fraud, debt collection, and other consumer matters.
Befitting our location in one of the most diverse communities in the country, St. John’s actually has three immigration clinics: the Bread & Life Immigration Clinic, the Immigrant Social Justice Clinic, and the Refugee and Immigrant Rights Litigation Clinic.
These areas may get short shrift elsewhere, but they have been a focal point at St. John’s for years.
April 16, 2013
Professor Janai Nelson will present her paper, The First Amendment, Equal Protection, and Felon Disenfranchisement: A New Viewpoint, at CUNY Law School on Wednesday, April 17. The talk is based on her article of the same name, which was recently published in the Florida Law Review. You can find the published version of the article here.
April 16, 2013
Professor Edward Cavanagh’s latest paper, Antitrust Law and Economic Theory: Finding a Balance, has been accepted for publication by the Loyola Law (Chicago) Journal. The paper is not yet available on SSRN.
Professor Cavanagh will also present the paper at the Mid-West Antitrust Symposium at Loyola on Friday, April 19.
April 12, 2013
On Friday, April 12, Professor Michael Perino will present a paper entitled Setting Attorneys’ Fees in Securities Class Actions: An Empirical Assessment at the 19th Annual Symposium of the Institute for Law and Economic Policy in Naples, Florida. Co-written with University of Texas Law Professors Lynn Baker and Charles Silver, the paper analyzes, among other things, the effect that ex ante fee agreements have on fee awards in securities class actions. Papers from the conference will be published in an upcoming issue of the Vanderbilt Law Review. The paper is not yet available on SSRN.
More information on the symposium is available here.
April 10, 2013
Research Professor Matthew Bruckner’s latest paper, The Virtue in Bankruptcy, was accepted for publication in the Loyola University Chicago Law Journal. Here is the abstract:
In response to a gap in the corporate bankruptcy literature, this article offers a new positive theory of corporate bankruptcy law based on virtue ethics. The dominant theory of corporate bankruptcy law — the creditors’ bargain model — is necessarily incomplete because it does not account for bankruptcy courts’ equitable and discretionary powers, or for Congress’ decision to privilege decision-making criteria other than economic efficiency. By contrast, virtue ethics can offer insights about corporate bankruptcy law’s most salient features for at least three reasons. First, bankruptcy courts appear to give content to bankruptcy laws by using virtue ethical principles. Virtue ethics’ decision-making process — practical wisdom — can provide insights into how bankruptcy judges balance concerns about, among other things, efficiency, justice and fairness when reaching decisions. This is particularly true when the bankruptcy court’s equitable jurisdiction or discretionary powers are implicated. Third, virtue ethics’ symbiotic consideration of means and ends parallels the process bankruptcy judges are called on to use when exercising their discretionary or equitable powers under numerous provisions of the Bankruptcy Code.
A current version of the paper is available on SSRN (here).
April 9, 2013
Professor Paul Kirgis has written a new article called Leverage in Negotiation, which has been accepted for publication in the Harvard Negotiation Law Review.
Update: Paul’s article is now available on SSRN (here). Here is the abstract:
Leverage has been called “negotiation’s prime mover,” conferring power to reach agreement “on your terms.” That power, however, is not always benign. Where a negotiator has sufficient power to compel a counterparty to accept a set of unfavorable terms, the use of leverage may cross a line into inappropriate or illegal coercion. While coercion has been the subject of rich philosophical investigation, the topic of coercive power has received only cursory treatment in the negotiation literature. This article seeks to fill that gap by analyzing the uses and limits of negotiating leverage, which I define as power rooted in consequences. I identify and explain two types of leverage — positive and negative — and explore the legal and ethical implications of each type, drawing on the political theory of coercion as well as primary and secondary legal sources. I conclude by analyzing the contract doctrines of duress and unconscionability to show how an understanding of leverage can aid in their application.
April 1, 2013
Professor Jeff Sovern ‘s paper, Written Notice of Cooling-Off Periods: A Forty-Year Natural Experiment in Illusory Consumer Protection and the Relative Effectiveness of Oral and Written Disclosures (available here) will appear in the University of Pittsburgh Law Review. Here’s the abstract:
For more than forty years, a standard tool in the consumer protection tool box has been the cooling off period. Federal statutes, state statutes, and federal regulations all oblige merchants to give consumers three days to rescind certain contracts. This paper reports on a survey of businesses subject to such cooling-off periods. The study has two principal findings. First, the respondents indicated that few consumers rescind their purchases. Thus, the study raises doubts about whether cooling-off periods benefit consumers or whether they provide only illusory consumer protection.
Second, the study found that consumers who receive both oral and written notice of their rights are more likely to avail themselves of those rights than those who receive only written notices, and that the differences are statistically significant. Fifty-three percent of the Sellers who gave only a written notice and did not speak of the buyer’s right to cancel said buyers never cancelled, nearly double the percentage for sellers who did tell buyers (27%). Businesses that provided both oral in-person and written notices of the right to rescind were more than twice as likely to report that more than 1% of their customers cancelled contracts as those that provided only written notices. The article offers speculations about why cooling-off periods have been of such little value to consumers, and why oral and written notice combined have been more effective than written alone.
Finally, the survey asked respondents about the cost of cooling-off periods. More than four-fifths of the respondents who answered the question reported that the right to cancel had cost them either nothing or very little. This contrasts with the vehement opposition of opponents of such rules when they were first adopted in the 1960s and 1970s.
In addition, Professor Sovern will have an article, Can Cost-Benefit Analysis Help Consumers?, in the UC Irvine Law Review, based on his remarks at a March 15 symposium at Irvine.