June 13, 2014

Krishnakumar’s Article, Longstanding Agency Interpretations, in Fordham Law Review

Professor Anita Krishnakumar has written an article, Longstanding Agency Interpretations, which Fordham Law Review recently accepted for publication.  Here’s an abstract of the article:

How much deference—or what kind—should courts give to longstanding agency interpretations of statutes?  Surprisingly, courts and scholars lack a coherent answer to this question.  Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case.  But in practice, federal court review of longstanding agency interpretations—at both the Court of Appeals and the U.S. Supreme Court levels—turns out to be surprisingly erratic.  Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis, but at other times completely ignore or dismiss an agency interpretation’s longevity.  Moreover, judicial rhetoric about the relevance of longevity in the review of agency statutory interpretations is inconsistent from case to case.

What makes this doctrinal incoherence particularly remarkable is that courts usually care much more about the predictability of statutory interpretations and about upsetting settled institutional practices.  In fact, in two analogous contexts—judicial interpretations of statutes and historical executive branch practice in the constitutional arena—courts accord strong precedential effect, or a presumption of correctness, to established legal constructions.  This Article provides the first detailed study of federal court treatment of longstanding agency statutory interpretations—illuminating doctrinal inconsistencies and examining longevity-related factors that both favor and disfavor deference.  The Article also compares federal courts’ chaotic treatment of longstanding agency statutory interpretations with the precedential effect that courts give to longstanding judicial interpretations of statutes and the historical “gloss” effect that courts give to past executive practice in constitutional interpretation.  Ultimately, the Article argues that longstanding agency interpretations of statutes are at least as deserving of heightened judicial deference and that, at a minimum, federal courts’ disparate treatment of such interpretations—without acknowledging or justifying the distinction—is troubling.  The Article advocates that longstanding agency interpretations should be entitled to precedential effect by reviewing courts and outlines how such an approach might work.

anita

June 11, 2014

Sovern Opines on GM Scandal

Professor Jeff Sovern’s  letter in the New York Times on June 10, 2014, responds to reports about General Motor’s failure to prevent the loss of life from its defective cars.  The letter states in part:

Candice Anderson was charged with manslaughter and ultimately pleaded guilty to criminally negligent homicide for an accident leading to the death of her boyfriend.

Now that G.M. has concluded that the accident was caused not by her but by a defective part, it will be interesting to see if anyone at G.M. is charged with similar crimes.

jeff sovern

June 10, 2014

Crimm Publishes Book Chapter on Electoral Speech of Non-Profits

Professor Nina J. Crimm has published a chapter, Dilemmas in Regulating Electoral Speech of Non-profit Organisations, with Professor Laurence H. Winer in Not-for-Profit Law: Theoretical and Comparative Perspectives (Matthew Harding, et al., eds. Cambridge University Press 2014).  The editors describe the chapter as  follows

[S]ound[ing] a note of caution . . . Crimm and Winer compare the regulation of electoral speech of not-for-profits in Australia and the United States.  The US experience shows how difficult it can be to manage a distinction between acceptable or beneficial electoral speech by not-for-profits on the one hand, and cynical manipulation of the electoral process by vested interests utilizing not-for-profits on the other; it also shows how striving to achieve such a balancing act is apt to generate legal complexity.

nina

June 8, 2014

Varadarajan’s Article, Trade Secret Fair Use, forthcoming in Fordham Law Review

Professor Deepa Varadarajan‘s most recent article, Trade Secret Fair Use, was accepted for publication in Fordham Law Review. Here’s the abstract:

Trade secret law arose to help companies protect confidential information (e.g., the Coca-Cola formula) from competitors seeking to copy their innovative efforts. But companies increasingly use trade secret law to block a wide swath of information from the scrutinizing eyes of consumers, public watchdog groups, and potential improvers. Companies are able to do this, in large part, because trade secret law lacks sufficient limiting doctrines that consider the social benefits of unauthorized use. For example, trade secret law makes no allowance for the departing employee who uses proprietary information to identify glitches in software, create a substantially improved product, or disclose grave public health risks.

This Article argues that trade secret law’s indifference to the social benefits of unauthorized use stands in contrast to other intellectual property doctrines, like patent and copyright. Copyright law incorporates the robust affirmative defense of “fair use,” which protects a variety of unauthorized but socially beneficial uses of another’s copyrighted work (e.g., educational uses). To a lesser extent, patent law’s reverse doctrine of equivalents and remedies analysis direct courts to consider the social benefits of a defendant’s technological improvement. Such limiting doctrines act as safety valves to reconcile intellectual property rights with competing innovation and First Amendment interests. This Article demonstrates trade secret law’s need for a similar safety valve and argues that courts should adopt a multi-factor “trade secret fair use” analysis to better address these competing concerns.

deepa

June 6, 2014

Joseph’s Book “The Game Changed” Subject of Essay Review

The Reverend Joseph T. Tinnelly, C.M., Professor of Law Lawrence Joseph‘s book, The Game Changed: Essays and Other Prose, is the subject of an essay review by Dean Emeritus and Professor of Law Joseph Tomain of the University of Cincinnati College of Law in the most recently published issue of the St. John’s Law Review.  Describing Professor Joseph as “the most important lawyer-poet of our era,” Professor Tomain writes

Quite simply, Joseph the lawyer, poet, and scholar has developed a jurisprudence of his own. . . The Game Changed gives us rules to live by, and challenges of love and truth, and beauty and justice, to meet.

book

June 4, 2014

Sovern Speaks at Teaching Consumer Law Conference

Professor Jeff Sovern spoke at a conference presented by the University of Houston Law Center titled Teaching Consumer Law in a Virtual World on Friday, May 30, 2014.  The title of his talk was “Increasing the Prominence of Consumer Law and Influencing Policy.”  You can learn more about the conference here.
Sovern_lores
June 2, 2014

Borgen Discusses IL and the Ukraine Crisis with UN Ukraine Ambassador

On Wednesday, June 4, 2014, Christopher Borgen, Professor and Associate Dean for International Studies, will participate in a roundtable discussion on international law and the crisis in Ukraine at the New York City Bar Association.  Professor Borgen will be joined by Ukraine’s Ambassador to the United Nations, Yuriy Sergeyev.   Alumnus Mark Meyer ’71, the Honorary Consul of Moldova in New York City, will moderate the discussion.

borgen

 

May 30, 2014

Baum Addresses Lawyers at Federal Court Pro Bono Training

On Thursday, May 29, 2014, Jennifer Baum, Associate Professor of Clinical Legal Education and Director of the Child Advocacy Clinic, joined judges, trial lawyers, and the Chief Counsel to the Pro Se Office in training new and experienced attorneys for pro bono cases in the Southern District of New York.   This CLE program, titled Trial Advocacy Training for Pro Bono Lawyers was organized by the United States District Court for the Southern District of New York and the Federal Bar Council’s Public Service Committee.  The full day event was free for over 100 lawyers who agreed to accept a pro bono case within one year. Professor Baum described recent pro bono cases she has handled in federal court, and met with lawyers to discuss upcoming pro bono litigation opportunities.

Baum

 

 

 

May 27, 2014

Sovern Publishes Op-Ed in Pittsburgh Post-Gazette on Privacy

Professor Jeff Sovern has published an op-ed, Business Forum: Data brokers peddle information for their own selfish interests, in the Pittsburgh Post-Gazette.  Professor Sovern concludes:

Congress should create a single website that consumers can visit to opt out of the collection of information on their transactions.

The options should be detailed enough so that consumers who want merchants to know of their interests in some things can indicate that, while still blocking sale of other information.

Merchants that collect information about consumers should be obliged to respect consumer choices, just as telemarketers must honor the “do-not-call” list. Merchants should be able to sell information about sensitive subjects, like illnesses, only if consumers affirmatively grant permission to do so.

Privacy policies should be standardized, brief, written in plain English and link to the opt-out website. If the result is fewer free websites, at least that will reflect what consumers want, rather than what businesses have decided for them. I may now be cancer-free, but until Congress acts, I am also privacy-free.

Sovern_lores

May 20, 2014

Sovern, Greenberg, and Kirgis Secure Grant for Arbitration Research

Professors Jeff Sovern, Elayne Greenberg, and Paul Kirgis, in conjunction with the Hugh L. Carey Center for Dispute Resolution, have been awarded a grant from the American Association of Justice to survey consumers about their understanding of arbitration clauses.  The grant is to culminate in publication of a law review article.  Many consumer contracts include clauses requiring the parties to forego litigation in court or class actions, and it is unclear whether consumers understand the rights they give up when they enter into such contracts.  The professors’ research should shed light on that question.  Congress has barred the use of arbitration clauses in some consumer contracts, and has directed the Consumer Financial Protection Bureau to study the use of arbitration clauses, after which the Bureau may issue a regulation regulating their use.

elaynekirgis_lores_web

 

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