St. John's University Law Faculty Blog

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.

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.

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.

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.