Prof. Ray Warner delivered the inaugural Hon. Frank W. Koger Lecture on Commercial and Bankruptcy Law at the University of Missouri – Kansas City School of Law. His lecture was titled “The World is Flat (Broke): Globalizing Bankruptcy Law.”
On March 11, 2015, Professor John Q. Barrett participated in an international conference entitled “Legally Blind: Law, Ethics, and the Third Reich,” held at Boston College in Chestnut Hill, MA. Professor Barrett’s lecture, “Dawning, Developing Comprehension of Nazi Law-Breaking & Atrocities: Justice Robert H. Jackson on the Road to Nuremberg, 1940-1945,” will be published in a conference book. During the conference, he and other conferees also were interviewed for a documentary film that now is in production. For local press on the conference, click here and here.
Krishnakumar’s Article, “The Sherlock Holmes Canon,” to be Published in George Washington Law Review
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.
Professor Ray Warner’s article Cross-Border Cooperation in the United States: A Retreat or Merely a Pause? appeared in a Festschrift delivered to leading international bankruptcy scholar Prof. Ian Fletcher in San Francisco on Friday. Prof. Fletcher is an Emeritus Professor of International Commercial Law at the University College of London and formerly was a Professor of Commercial Law and Head of the Insolvency Law Unit, Centre for Commercial Law Studies, Queen Mary and Westfield College, London University.
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 Los Angeles Times quoted Professor Jeff Sovern in an article, Credit-reporting firms’ accuracy push? Finally — but it’s still not enough. The article, discussing the settlement between the big three credit bureaus and New York’s Attorney General, states:
Last week’s settlement is a step in the right direction. But it doesn’t go far enough.
“These companies still have a lot of power,” said Jeff Sovern, a law professor at St. John’s University in New York. “The Fair Credit Reporting Act favors credit-reporting agencies and creditors over consumers.”
Professor Jay Facciolo and Leland Solon, one of his former students, have just published an article in the New York Law Journal entitled “Sub-Adviser Fee Litigation: Will Section 36(b) Acquire Teeth?” It deals with a wave of class action litigation under the Investment Company Act of 1940 that is gaining real traction in challenging allegedly excessive fees paid by mutual funds to investment advisers to the funds. Successful private actions under the Investment Company Act historically have been few and far between. This article is a followup to an article that was previously published with the New York Law Journal in October 2013.
Philadelphia Inquirer columnist Jeff Gelles quoted Professor Jeff Sovern in his column, Big 3 clean up act, but credit agencies won’t win any love, earlier this week. The column, about a settlement between credit bureaus and the New York Attorney General’s Office, stated:
Will the credit agencies finally clean up their act . . . ? Consumer-policy experts such as Jeff Sovern, a law professor at St. John’s University, have lingering doubts, because of the credit bureaus’ unique position in the market.
* * * Sovern and Ira Rheingold, executive director of the National Association of Consumer Advocates, explained in a 2013 op-ed that creditors can actually benefit if certain kinds of disputes are never solved.
“For their part, lenders may benefit when credit bureaus report consumer defaults, even incorrectly, because such reports put pressure on consumers who wish to maintain good credit ratings to pay even disputed claims,” Sovern and Rheingold wrote – describing a problem I’ve heard about repeatedly from consumers, who say they paid a small bill they didn’t really owe to preserve their credit score.
Sovern and Rheingold wrote back then that “the marketplace can penalize credit bureaus that investigate too aggressively. Credit bureaus are heavily dependent on lenders for both revenue and the information the bureaus package and sell; if a credit bureau presses a lender too hard, the lender could patronize a different bureau and withhold data about its customers.” Sovern says now that since the new settlement applies to all three bureaus, that should be less of a problem. “We will see,” he says.