April 21, 2015
Professor Ray Warner is serving as a delegate of the International Insolvency Institute to
G. Ray Warner
UNCITRAL Working Group VI (Security Interests) during its drafting sessions this week at the UN in New York. Working Group VI is developing a a model international law on secured transactions.
March 24, 2015
Professor Anita Krishnakumar’s new article, “The Sherlock Holmes Canon,” has been accepted for publication in the George Washington Law Review. Here is the abstract:
Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a new law or statutory amendment would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend a change in the law. Failure to comment arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation of the statute is advanced that arguably would change the status quo. Surprisingly, this canine canon of construction has received little theoretical attention—and what little attention it has received has tended to be positive, assuming that the canon leads courts to follow congressional intent. But there are several practical and theoretical problems with the assumptions underlying the canon.
This Article first examines how courts employ the Sherlock Holmes canon in practice. It then evaluates the canon’s normative and theoretical implications in detail. Ultimately, it argues that the Sherlock Holmes canon is a clear statement rule in disguise, in that it allows judges to freeze certain legal rules in place and to shift the institutional burden to Congress to be exceptionally clear when it wishes to effect certain kinds of legal change. The Article concludes that the canon should be invoked only in rare cases, when there is special reason for courts to expect or require Congress to comment on a change in the law.
February 23, 2015
Professor Ettie Ward was recently elected to the Executive Board and Secretary of the Sports Law Section of the AALS. Professor Ward was also elected to the Executive Boards of both the Civil Procedure and Litigation Sections.
October 27, 2014
Professor Lawrence Joseph’s poem, On Nature, has been published in Commonweal Magazine’s 90th Anniversary issue.
September 30, 2014
The Lanier Theological Library in Houston has posted a video of a panel on religious liberty that took place at
the library earlier this month. Among other subjects, the panel addressed the rise of contemporary Islamism, the treatment of Christians in the Mideast, the prevalence of Islamic-law arbitration in Europe and the US, and the legality of American drone strikes on American citizens affiliated with Islamist groups. The panel was hosted by Mark Lanier and included Professor Mark Movsesian, Dean Michael Simons, Professor James Hoffmeier (Trinity Evangelical Divinity School), and Fr. Mario Arroyo (Archdiocese of Galveston-Houston).
September 29, 2014
This Friday, St. John’s University School of Law will host a breakfast talk with SEC Enforcement Division Director Andrew J. Ceresney and Robert E. Rice, Chief Counsel to SEC Chair Mary Jo White. The program will focus on the modern challenges facing the commission, including new financial instruments, high frequency trading, and international investigations. This event will take place at St. John’s new Manhattan campus and is co-sponsored by St. John’s Law Review and the Corporate and Securities Law Society. To register for the program and for additional information, please visit the event page.
September 26, 2014
On September 19, Dean Michael Simons spoke at the University of St. Thomas School of Law in Minneapolis as part of the 2014 Religiously Affiliated Law Schools Conference. Dean Simons was part of a panel of deans discussing “Religious Identity in a Time of Challenge for Law Schools.”
September 3, 2014
Adam J. White has a review of Marc DeGirolami’s book, The Tragedy of Religious Freedom, in the September issue of Commentary Magazine. The print edition features a selection from the book.
June 21, 2014
Professor Eva Subotnik’s article, Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings, 37 Colum. J.L. & Arts 327 (2014), co-authored with June Besek at Columbia Law School, has been published in the Columbia Journal of Law & the Arts. In their article, Professors Subotnik and Besek examine the constitutional underpinnings of proposed legislation to bring pre-1972 sound recordings under federal copyright protection, in particular, whether such an amendment would violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution. While concentrating on pre-1972 sound recordings, the article timely addresses issues that have implications beyond that context in the digital age, including implications for the comprehensive review of U.S. copyright law currently under way by the House Judiciary Committee.
In addition, Professor Subotnik’s article, Intent in Fair Use, will be published in the Lewis & Clark Law Review this fall. The article explores the role of intent in the context of fair use. Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user. The Article first develops a framework for evaluating the degree to which courts, parties, and scholars have deemed conscious compliance with fair use principles relevant to the fair use analysis. It then argues for a limited role for evidence of subjective intent, proposing criteria for when such evidence should, and should not, be weighed in the fair use calculus.
June 19, 2014
Professor Jeremy Sheff was quoted in an article on today’s decision by the United States Patent and Trademark Office to cancel several trademark registrations owned by the Washington Redskins. The article states in part:
A person (or organization) gets a trademark by using it in commerce, and registration is simply an extra step that confers extra protections. “The Lanham Act gives the senior user of a mark the right to prevent others from using a mark that is likely to cause confusion, regardless of whether the mark is registered,” says Jeremy Sheff, an intellectual property law professor at St. John’s.
. . .
It’s theoretically possible that a judge would restrict the team’s common law rights on the basis that the marks are disparaging, but unlikely — and we probably won’t find that out until the team actually sues someone using the name and logo.
“There’s a chance that the Redskins mark will eventually be found not only unregisterable, but unenforceable,” Sheff says. “But I don’t think it’s a strong one.”