December 6, 2017

Krishnakumar’s Book Review to be Published in Yale Law Journal

Professor Anita S. Krishnakumar has written a review of Josh Chafetz’s new book, Congress’s Constitution:  Legislative Authority and the Separation of Powers (Yale University Press, 2017).  cropped-webpage-i

The review, titled “How Long is History’s Shadow?”, will be published in the Yale Law Journal.  Here is the abstract:

In Congress’s Constitution, Professor Josh Chafetz takes issue with those who have questioned the value of Congress in recent years, arguing that such critics focus too heavily on Congress’s legislative function and ignore several important nonlegislative powers that enable Congress to exert significant authority vis-à-vis the other branches. Chafetz engages in close historical examination of these nonlegislative powers and notes that in some cases Congress has ceased exercising them as robustly as it once did, while in others it has unwittingly ceded its powers to another branch. Congress’s Constitution urges Congress to reassert several of its ceded powers more aggressively going forward, in order to recapture some of the authority and influence it has lost over time.

While admiring Chafetz’s project—and sharing in his nostalgia for some of Congress’s lost powers—this Review questions Congress’s ability and inclination to rehabilitate its underused powers in the manner Chafetz advocates. At least some of the powers Chafetz seeks to revive read like ancient history—the record of an era of legislative governance that has long since passed and that subsequent political and legal events have transformed—perhaps irreversibly. Further, Chafetz may be underestimating how some important dynamics, such as partisanship, could make Congress itself less likely to want to exercise its powers and could make the public unlikely to accept modern congressional attempts to aggressively exercise powers that have lain dormant for decades. More fundamentally, the present-day Congress may not have the integrity as an institution to look past what it “wants in the moment” in order to take steps that will benefit it as an institution—and it may not care as much about preserving its own traditions and history as Chafetz does.

In the end, the Review suggests that while reinvigorating Congress’s underappreciated powers may be a good idea in theory, in practice it may prove more challenging than Chafetz recognizes.

December 5, 2017

Levine Presents at Wake Forest and University of Washington Law Schools

Professor Kate Levine was invited to present her work-in-progress, Discipline and Policing, at two faculty workshops this Fall.  levine

On October 5, 2017, she presented to the Wake Forest University Law School faculty, and on November 9, 2017, she presented to the University of Washington School of Law faculty. The paper has also been selected for the American Constitution Society’s, Junior Scholars Public Law Workshop, held at the AALS 2018 meeting in San Diego, CA, on January 4, 2018.

Discipline and Policing examines police disciplinary records (PDRs). These records are part of an officer’s personnel file and contain reported wrongdoing from sources such as supervisors, Internal Affairs Bureau investigations, and Community Complaint Review Boards. Professor Levine’s article argues that a current movement, led mostly by civil rights groups, to make PDRs public is problematic on a number of levels. The paper first shows how prevalent the notion of transparency has become in police reform scholarship and policymaking. It questions the efficacy and long-term benefits of the “transparency cure” for policing problems generally, and then does so specifically for PDRs. Advocates of PDR transparency hope that making records public will ramp up discipline of bad officers, reform police departments, and make communities safer. The paper argues that these hopes are in vain, and that, in fact, there is a real concern that police departments will retrench if forced to make discipline more public. The paper then shows how similar arguments in favor of making PDR’s public are to arguments deployed successfully by those who wished to make criminal records public — a reality that has been lamented and critiqued by scholars for decades. Finally, the paper shows that many of the problems inherent in making criminal record public: inaccuracy, arbitrariness, overdermination, and racial injustice, are just as problematic for PDRs, which emerge from a system comparable in its confusion and byzantine nature to the criminal justice system. Thus, the arguments scholars have made for decades about criminal record publication should be considered when it comes to PDR publication. And, the language which police groups use to defend their rights can and should be leveraged to argue for a tamping down of harshness toward criminal defendants. This paper builds on a series of articles arguing that the trend toward harshness for police who are accused of wrongdoing legitimates the harshness with which criminal defendants are treated.

November 19, 2017

Barrett Lectures at U.S. Supreme Court

On November 1st, Professor John Q. Barrett delivered one of the Supreme Court Historical Society’s 2017 Leon Silverman Lectures, in the courtroom at the Supreme Court of the United States.  jqb photo

His lecture topic was “Attorney General Robert H. Jackson and President Franklin Roosevelt.”

Chief Justice of the U.S. John G. Roberts, Jr., introduced Professor Barrett’s lecture. For a SCOTUSblog report on the event, click here:

The program was filmed and will be broadcast on C-SPAN, and Professor Barrett’s lecture will be published next year in the Journal of Supreme Court History.

November 18, 2017

Sovern Interviewed on CBS Radio and Quoted by The Intercept on the CFPB and Arbitration

KCBS radio interviewed Professor Jeff Sovern on October 25 on the Senate’s vote to block the Consumer Financial Protection Bureau’s arbitration rule.

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Jeff Sovern

Anchorwoman Rebecca Corral​ described Sovern as an “expert in consumer protection.” In addition, The Intercept, in partnership with The Investigative Fund, quoted Sovern in an article titled “No Protection for Protectors” on attacks on the CFPB. According to the article:

The clash has grown only more intense since Trump’s election. Now most regulatory agencies are in the hands of Trump loyalists or former players in the financial industry. For the past five months, only the CFPB, the Federal Deposit Insurance Corporation, and the Fed were still run by Obama appointees. “It’s the nail that sticks up that gets pounded,” said Jeff Sovern, a consumer law professor at St. John’s University in New York.

November 17, 2017

Professor Goldweber Received Outstanding Advocate Award

Professor Goldweber received the Outstanding Advocate Award from the Queensboro Council for Social Welfare at its annual Salute to Community Leaders Luncheon on November 3, 2017.  goldweber

The Queensboro Council provides services and referrals for older adults living in Queens. Professor Goldweber has collaborated with the Council for several years and has provided trainings on foreclosure and financial abuse issues to its social workers. The Council has also referred numerous cases to the Consumer Justice for the Elderly: Litigation Clinic. Other honorees included State Commissioner of Mental Health, Dr. Ann Marie Sullivan, and Assemblyperson David Weprin.

October 30, 2017

Barrett Lectures at Museum of Jewish Heritage

On October 19th, Professor John Q. Barrett delivered a lecture, “From Nuremberg to Eichmann,” at the Museum of Jewish Heritage: A Living Memorial to the Holocaust, in New York City.

JQB Jewish Museum

October 25, 2017

Lazaro Becomes Executive Vice President/President-Elect of PIABA and Speaks on Securities Arbitration Issues

This past week, Professor Lazaro became the Executive Vice President/President-elect of the Public Investors Arbitration Bar Association (PIABA) at its annual meeting.  Professor Lazaro has served on the Board of Directors of PIABA for the past two years, and has chaired several committees over the past nine years as a member of the association.  Professor Lazaro will serve one year as vice president, followed by one year as president of PIABA. Christine Lazaro

Professor Lazaro also spoke on two panels at PIABA’s annual meeting.  Professor Lazaro spoke on the panel entitled, “The DOL’s Fiduciary Rule: How it Compares to (and Impacts) Existing Standards for Broker-Dealers and Investment Advisers,” along with Professor Mercer E. Bullard of the University of Mississippi School of Law and Professor Teresa J. Verges of the University of Miami School of Law.  The panel discussed the recent Department of Labor fiduciary duty rule and how it differs from other fiduciary standards governing financial advisors.  Professor Lazaro also spoke on the panel entitled, “Regulatory Changes to the Investment Advice Industry,” with Professor Benjamin Edwards of the UNLV William S. Boyd School of Law.  That panel discussed recent regulatory updates, including the DOL’s fiduciary duty rule, recent SEC guidance on Initial Coin Offerings, as well as other FINRA and SEC rule changes.

Additionally, Professor Lazaro was recently quoted in news articles on securities arbitration issues. Professor Lazaro was quoted in James Thorne’s article, “FINRA diversifies arbitrator pool, with a long road ahead,” on OnWallStreet.com. Professor Lazaro discussed concerns about the lack of diversity in the FINRA arbitration pool:

When arbitrators don’t resemble claimants or society at large, the system appears to have a structural bias, critics contend.

“It undermines customer confidence in the process,” says Christine Lazaro, vice president-elect of PIABA and director of the Securities Arbitration Clinic at St. John’s University School of Law.

The diversity of the FINRA arbitration pool was a topic discussed at the PIABA annual meeting.  FINRA has been making efforts to further diversify its pool of arbitrators.

Professor Lazaro was also quoted in Michael Thrasher’s article, “Office of Management and Budget Approves DOL Fiduciary Rule Delay,” on WealthManagement.com.  The DOL recently submitted a proposal to the Office of Management and Budget, requesting an additional 18 month delay of implementation of the exemptions associated with the DOL’s Fiduciary Rule.  Certain aspects of the exemptions accompanying the Rule had already been delayed from April 2017 to January 2018.  Professor Lazaro commented on the impact of a further delay:

Christine Lazaro, an associate professor at St. John’s University School of Law, is a proponent of the fiduciary rule and was disappointed the delay was approved.

“Investors will continue to be harmed by conflicted advice, especially if there is no meaningful way to enforce the impartial conduct standards,” Lazaro said. “The DOL has already demonstrated that the costs of compliance are outweighed by the costs associated with delay.”

Professor Lazaro further discussed this topic on both of the PIABA annual meeting panels.

October 23, 2017

Salomone Presents at Toledo Symposium on Public Single Sex Schools

Professor Rosemary Salomone gave a presentation on “Public Single-Sex Schools: Caught in a Web of Law, Politics, and Science” at the Symposium on Gender Equality: Progress and Possibilities hosted by the Law Review at the University of Toledo College of Law on October 13th.

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Rosemary Salomone

Professor Salomone discussed her involvement in the legal developments surrounding such schools, critiqued the arguments raised by the organized opposition, and provided counter evidence from empirical findings from abroad and anecdotal evidence from the United States where single-sex schools have been shown to benefit particularly “at risk” students.

October 19, 2017

Barrett Gives U.S. Supreme Court Review/Preview Lecture

On October 5, Professor John Q. Barrett lectured at the Federal Bar Association’s EDNY jqb photoChapter, at the U.S. Courthouse in Central Islip, New York, on U.S. Supreme Court decisions and developments from last Term and cases and possible developments in the newly-started Term. This is the sixth consecutive year in which he has lectured in this well-attended program for Federal lawyers and Judges.

October 19, 2017

Sovern Speaks at City Bar Association, Quoted In Five Articles on Equifax Data Breach, Including by Consumer Reports and American Banker

Professor Jeff Sovern spoke to the New York City Bar Association Committee on Consumer Affairs about the Consumer Financial Protection Bureau in the Trump administration on October 12. In addition, he was quoted in five articles.

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Jeff Sovern

On September 28, Consumer Reports, in an article titled “Should You Participate in a Class Action Against Equifax?​” and posted on Yahoo Finance, quoted Sovern as follows:

In some cases, you may have a choice of accepting either a default payment or applying for a higher amount based on any proof you have that your losses were higher, says Jeff Sovern, professor at the St. John’s University School of Law in New York. * * *

You can opt out of a class action. If you do, you’ll preserve your right to sue on your own, Sovern says.

The American Banker quoted Sovern in two articles. One, on September 22, was about a credit union class action against Equifax in connection with the data breach, and was headlined “Credit union suit of Equifax may be first, likely won’t be last”​:

“I wonder whether the breach will affect the willingness of financial institutions to give Equifax the information which it needs to function,” Jeff Sovern, a law professor at St. John’s University, said in an email.

“After all, financial institutions now have a reason to believe that information may not be secure,” Sovern continued. “If some financial institutions stop providing Equifax data, that may make Equifax’s product less valuable to other lenders, which could also affect their willingness to be an Equifax customer. So financial institutions can damage Equifax even without suing.”

The other American Banker article, published on September 11, was headlined “Equifax breach may kill repeal of CFPB mandatory arbitration rule.”​ The article quoted Sovern as folllows:

Jeff Sovern, a law professor at St. John’s University in New York, called Equifax’s use of an arbitration agreement “diabolical” and “clever lawyering.”

* * *

“Equifax’s arbitration agreement precludes consumers from bringing class actions,” said Sovern, who added that the agreement likely now extends to noncustomers, giving the company even more cover.

“Many-perhaps most-of the consumers whose data has been compromised won’t have a previous contractual relationship with Equifax, and so would have been able to bring a class action,” Sovern said.

Sovern was also quoted by Woman’s Day in “You Could Be Entitled to Money From the Equifax Security Breach” on September 22:

That being said, Jeff Sovern, a professor of law at St. John’s University, says if you weren’t planning to sue on your own, you have little to lose by joining in.

“If you believe you have a valid claim but you aren’t going to bother to sue separately, and you think the settlement is likely to benefit you (e.g., if money will be deposited directly into your bank account without you doing anything or if you believe you would file the claim forms), then you gain something by joining without losing anything,” he explained to GoodHousekeeping.com.

Bankrate.com also quoted Sovern in an article titled “Ready to sue Equifax? Here’s what to know”:

“If somebody has a huge amount of damage — their credit is destroyed or they’ve put down a deposit to buy a house and now they can’t get a mortgage and they lose the deposit, they lose their dream house — now their damages are enough to pay for an attorney,” says Jeff Sovern, a law professor at New York’s St. John’s University. * * *

If consumers have agreed to an arbitration clause, they’re usually stuck. But these agreements can be waived if there’s public pressure, Sovern says.

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