Professor Janai S. Nelson has published her article, Arc of Injustice: Pre- and Post-Decision Thoughts on Shelby County v. Holder, in a symposium issue on the case and the Voting Rights Act in Touro Law Center’s Journal of Race, Gender, and Ethnicity.
I have a new article up titled, Free Exercise By Moonlight. Here’s the abstract:
How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.
1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.
In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.
Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation — understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.
Professor Michael Perino’s co-authored article on securities class action fee-setting (linked below), which will be published in the Columbia Law Review, was cited in this Reuters story by Alison Frankel. A bit from the beginning:
A couple of weeks ago, I wrote about a fee opinion by U.S. District Judge Lewis Kaplan of Manhattan, who decided that a request by class counsel for 13 percent of a $346 million settlement with underwriters of IndyMac mortgage-backed securities was just too much. Even though the 13 percent request was in line with the fee deal plaintiffs’ firms had negotiated in advance of the litigation with the lead plaintiff, a public pension fund, Kaplan cut the fee award to 8 percent, based on his own experience with securities class actions and skepticism about the hours reported by class counsel.
That example is a paradigm of the problems with the current system of awarding fees in securities class actions, at least as those problems have been pinpointed in an upcoming Columbia Law Review article by law professors Lynn Baker and Charles Silver of the University of Texas and Michael Perino of St. John’s University. In “Is the Price Right: An Empirical Study of Fee-Setting in Securities Class Actions,” the professors dipped into the dockets of 434 settlements announced between 2007 and 2012, looking at (among other things) how pre-set fee agreements with counsel factored into lead plaintiff selections; how fee requests and awards varied by the volume of cases handled by different jurisdictions and even individual judges; and why judges in about 15 percent of the settlements cut the requested fees.
Their overall conclusion is that in the vast majority of cases, fees are determined after the fact, based only on the size of settlement and the biases of the court. The professors argue that their findings show one of the goals of the Private Securities Litigation Reform Act of 1995 – to encourage lead plaintiffs to exercise oversight by negotiating fee arrangements with class counsel at the onset of a case – has not been met. They also concluded plaintiffs lawyers may be exploiting market inefficiencies by requesting higher fees from courts with a low volume of securities cases. And judges who slash fee requests without real analysis of benchmarks, they said, create uncertainty that, in the long run, hurts investors because it discourages class action lawyers from investing in cases.
Subotnik Article on Copyright and Estate Law To be Published by Harvard Journal of Law and Technology
Professor Eva Subotnik’s article, Copyright and the Living Dead?: An Estates Law View
of the Post-Mortem Term, will be published in the fall by the Harvard Journal of Law & Technology. Here is the abstract:
Is there any good reason why the term of copyright, which was once a scant fourteen years long, should now last decades beyond the death of the author? Proponents of copyright as a form of property have generally welcomed this expansion. By contrast, recent scholarship has cast doubt on the soundness of any post-mortem period of protection, citing anti-social behavior by well-known authors’ successors that threatens our cultural heritage. Absent from the literature thus far, however, has been a systematic study of how estates law principles, which govern the general succession of property, bear on the justifications for and scope of copyright’s post-mortem term. Undertaking that task, this article makes two principal points. First, estates law theories and doctrines provide discrete support—beyond what general property principles provide—for a post-mortem term that should be taken into account in any debate over copyright duration. Second, while there are costs associated with the post-mortem term, they should be viewed primarily through the prism not of dead-hand control but of suboptimal stewardship by the living. Together, these points begin to suggest changes that should be implemented, including the shortening of the post-mortem term and the instantiation of better stewardship practices among authors’ successors.
Gregory Speaks on Labor Law and Religion Panels, Publishes Chapter on Catholicism and Labor & Employment Law
Professor David Gregory was a featured panelist and speaker at the Syracuse University and Le Moyne Labor and Religion conference, “Moral Vision From/For the Grassroots,” on April 10 and 11, 2015. He will moderate a featured panel, “Catholic Colleges and Universities, Collective Bargaining and NLRB Jurisdiction,” at the annual conference of the National Center for the study of collective bargaining in higher education and the professions, CUNY Graduate Center, on April 21, 2015.
His chapter on labor and employment law has been published in “A Clearer Lens: American Law from a Catholic Perspective.”
On March 25, PIABA released a report, entitled “Major Investor Losses Due to Conflicted Advice: Brokerage Industry Advertising Creates the Illusion of a Fiduciary Duty” co-authored by Joseph C. Peiffer and Christine Lazaro. The report compares the image brokerage firms project to the public in their advertising and on their websites with the position firms take in arbitration when it is alleged that they have breached their fiduciary duties to customers. Concurrent with the issuance of the report, PIABA held a news event during which Joe Peiffer and Professor Lazaro presented the report, and a customer shared her experience with one of the firms cited in the report. Professor Lazaro was quoted regarding the report in several stories, including Andrew Welsch, “Latest Fiduciary Rule Battle Cry: ‘Broker Ads Mislead Investors’,” On Wall Street, and James Langton, “U.S. brokerage firms misleading investors about fiduciary role: PIABA,” Investment Executive. Following the issuance of the report, Professor Lazaro traveled to Washington D.C. with other members of PIABA and met with a number of agencies and congressional staffers to discuss the fiduciary duty standard and other investor protection issues.
Professor Jeff Sovern’s article, Can Cost-Benefit Analysis Produce Better Consumer Protection? Or at Least Benefit Analysis? has been published at 4 UC Irvine Law Review 1241 (2014), as part of a symposium on cost-benefit analysis. Irvine, a relatively new law school, is ranked for the first time this year in the US News rankings, and came in at 30th. Here is the article’s abstract:
Cost-benefit analysis is often troubling to consumer advocates. But this article argues that in some circumstances it may help consumers. The article gives several examples of supposed consumer protections that have protected consumers poorly, if at all. It also argues that before adopting consumer protections, lawmakers should first attempt to determine whether the protections will work. The article suggests that because lawmakers are unlikely to adopt multiple solutions to the same problem, one cost of ineffective consumer protections is a kind of opportunity cost, in that ineffective consumer protections might appear to make unnecessary adoption of effective ones. Ironically, such an opportunity cost is unlikely to be taken account of in cost-benefit analysis. Among the protections that especially risk failing to benefit consumers are laws that require consumers to perform certain tasks, such as disclosure laws that presuppose consumers will pay attention to and act on the disclosures; if consumers instead generally ignore the disclosures, the consumer protection will be largely illusory. Accordingly, before adopting measures that depend on consumers to do something, lawmakers should try to verify that consumers will in fact undertake those actions. The article also makes some suggestions for ascertaining whether consumer protections will work — i.e., benefit consumers — and concludes with a brief critique of the proposed Independent Agency Regulatory Analysis Act.
The Consumer Financial Protection Bureau released a congressionally-mandated study of arbitration today and devoted two pages to discussing “Whimsy Little Contracts” with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements, by Professors Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis, together with Yuxiang Liu. The St. John’s Arbitration Study was also mentioned in an American Bar Association publication, 21 Dispute Resolution Magazine, No. 2 at 2 (2015). In scholarly publications, the article is being cited at a rate of more than once for every month it has been available, as indicated by the following list of citations:
- Ann M. Lipton, Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws, Georgetown Law Journal n. 64 (Forthcoming) .
- Eyal Zamir and Yuval Farkash, Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship, JERUSALEM REVIEW OF LEGAL STUDIES n. 142 (Forthcoming).
- Christopher P. Guzelian, Required Resolution: Enforcing Contracts Without Courts n. 26, Chapman NEXUS Law Journal (Forthcoming, 2015
- Jill I. Gross, Justice Scalia’s Hat Trick and the Supreme Court’s Flawed Understanding of Twenty-First Century Arbitration nn. 54, 141