September 20, 2021

Barrett Publishes Article on RBG and NY Court of Appeals 

Professor John Q. Barrett has published a short article, “Ruth Bader Ginsburg: Litigating Against Gender Discrimination…and Remembering One Such New York Case,” in the Historical Society of the New York Courts’ publication Judicial Notice.

The article is about Ginsburg as a New Yorker; her 1970s American Civil Liberties Union (ACLU) Women’s Rights Project litigation for women’s and men’s equal rights, including in the U.S. Supreme Court; and her involvement in Sontag v. Bronstein, a little-remembered case that the New York Civil Liberties Union (NYCLU)—the ACLU’s local affiliate—won in the New York Court of Appeals in 1973. Sontag concerned a dumbbell-lifting test that New York City’s Civil Service Commission imposed as a job qualification on Ms. Sontag, a school audio-visual aide; because she failed this weight-lifting test, the City moved to dismiss her. The New York court decided that this was illegal gender-based discrimination.

In Sontag, Ginsburg, representing the ACLU, was on the NYCLU attorneys’ brief. If the New York court had decided against Sontag, Ginsburg might have taken the case to the U.S. Supreme Court, where it might have produced a landmark decision concerning the unconstitutionality of gratuitous sexism.

Justice Ginsburg always remembered the Sontag case and the excellence of the brief. She kept it nearby during her judicial career.  

Click here for an abstract of Professor Barrett’s essay and to download it.

John Q. Barrett
Professor of Law

September 15, 2021

Cavanagh’s Essay Accepted By Cornell Law Review Online

Professor Ned Cavanagh’s essay, Countering the Big Lie: The Role of the Courts in the Post-Truth World, has been accepted for publication in the Cornell Law Review Online.

Here is an abstract of the piece:

During the administration of President Donald J. Trump, Americans witnessed an unprecedented assault on the truth by Trump and his political allies. Throughout his time in office (and even before), Trump lied to gain and maintain political support.  The biggest Big Lie, of course, was that 2020 election was stolen from him as a result of massive voter fraud in five swing states—Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. All of Trump’s court challenges to the 2020 election based on this lie failed.

Trump’s election lie, although it did not put him back in the White House, has inflicted serious, and now lasting, damage on our democratic institutions. Trump has created a post-truth world where facts no longer matter, thereby eroding trust in all branches of the government, including the courts. For Trump followers, the facts are irrelevant; only what Trump says matters. This view is not limited to Trump’s diehard “base.” Even mainline Republican legislators are embracing the Trump approach. Witness the attempts to reframe the events of January 6 not as a violent and lawless riot but rather simply as a peaceful exercise of free speech—in the face of overwhelming video and testimonial evidence to the contrary. Yet, other than losing his lawsuits, Trump has never been called to account for his baseless and irresponsible attempts to have the courts overturn the results of the 2020 Presidential election.

This essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short-shrift to Trump’s lawsuits but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of baseless claims, including Rule 11 of the Federal Rules of Civil Procedure and the courts’ inherent powers to control proceedings before them, the Trump election lie might well have been put to rest in its incipiency before it could take root among die-hard Trump supporters. This essay also suggests how the courts might more effectively handle future baseless and politically motivated election challenges in the post-truth world.

Edward D. Cavanagh
Professor of Law

September 13, 2021

Allen’s Article Cited by ABA Journal

Today, the ABA Journal cited Professor Renee Nicole Allen’s co-authored article, The ‘Pink Ghetto’ Pipeline: Challenges and Opportunities for Women in Legal Education, in a post about status inequity. The ABA post is available here.

Renee Nicole Allen
Assistant Professor of Legal Writing
Faculty Advisor, First Generation Professionals
Faculty Advisor, Women’s Law Society 
Co-Director, Writing Center
September 9, 2021

Board Diversity Requirements: California, Nasdaq, and More

Professor Cheryl L. Wade is a panelist at a virtual event sponsored by the In-House Counsel Working Group of The Federalist Society. The event takes place today, September 9, 2021 at 1:00 ET. Go to this link for more information about the program.

Cheryl Wade
Professor Cheryl L. Wade
Harold F. McNiece Professor of Law

August 31, 2021

Barrett Essay Pays Tribute to Charles Reich

Professor John Q. Barrett has published an essay, Charles Reich, New Dealer, as part of a special Touro Law Review issue that grew out of Touro Law School’s January 2020 conference commemorating the life and legacy of Charles A. Reich (1928-2019), former Yale law professor, constitutional law scholar, and best-selling author.

Professor Barrett’s essay, paying tribute to Reich’s writings and their friendship, juxtaposes how Reich revered Franklin D. Roosevelt and how Reich sometimes wrote negatively about the New Deal. The explanation, Barrett posits, is that Reich’s criticisms were aimed much more at 1950s government, conformity, and stultification than they were at the 1930s and 1940s years of Roosevelt’s presidency.

The Touro Law Review issue on Charles Reich includes, in addition to Professor Barrett’s essay: an introduction by Rodger Citron, conference organizer and Reich biographer; Charles Reich’s final (or at least his latest) article, Keeping Up: Walking With Justice Douglas; essays and articles by Hon. Guido Calabresi, Harold Hongju Koh, Felicia Kornbluh and Karen M. Tani, Sarah A. Seo, and Raymond H. Brescia; and concluding thoughts by Professor Citron.

For an abstract of Professor Barrett’s essay and to download it, click here.

John Q. Barrett
Professor of Law

August 23, 2021

Jackson Sow’s Article Places in California Law Review

Professor Marissa Jackson Sow’s paper, Protect and Serve, has been accepted for publication in the California Law Review (forthcoming June 2022). A description of the article follows:

Via the theories of whiteness as contract and the racial contract to policing, Protect and Serve uses critical contract theory to challenge the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officer. Instead, the paper advances the claim that the mandate that police “protect and serve” does not apply to Black people in actuality, notwithstanding the provisions of constitutional and statutory law, because they are the objects of racial contracting rather than participants therein. The police are charged with protecting the racial contract and serving the contract’s signatories; accordingly, they enforce the contract’s terms, requiring them to specifically target Black people for surveillance, harassment, deprivation, and even death, lest the contract be subject to breach or other interference.  

Marissa Jackson Sow
Assistant Professor of Law
August 18, 2021

Boyle Signs with Two Publishers

Professor Robin Boyle has signed with two publishers. For West Academic Publishing, she will be writing individual modules on varying Legal Research and Writing topics that faculty can use to supplement their LRW courses. She will be among a team of authors creating content for the West Academic Adaptable Modular Legal Research & Writing project (Sandra Simpson, Series Editor). The authors envision 20-25 modules in total, divided between writing and research topics. Each module will consist of approximately 50 minutes’ worth of student activity for each lesson. Individual modules will be available for purchase in 2022. 

Professor Boyle has also signed with Edgar Elgar to write and publish a book primarily designed for instructors, Teaching Contract Drafting. The book is to appear in the Elgar Guides to Teaching series. It is anticipated that the book will be approximately 180-200 pages in length and will be available in 2023. 

Additionally, Professor Boyle’s workbook, Becoming a Legal Writer, will have an online formative assessment component this Fall. The review questions, with suggested answers, will be provided on the Core Knowledge platform for Carolina Academic Press. The full title of the workbook is Becoming a Legal Writer: A Workbook with Explanations to Develop Objective Legal Analysis and Writing Skills (2019) (with Christine Coughlin & Sandy Patrick).

Robin Boyle
Professor of Legal Writing
August 17, 2021

Subotnik Presents Forthcoming Book Chapter

Last week, Professor Eva Subotnik presented her forthcoming book chapter, Dead-Hand Guidance: A Preferable Testamentary Approach for Artists, at the annual IP Scholars Conference, hosted virtually this year by Cardozo School of Law. Her panel was on “Copyright Authorship & Ownership.” The book chapter is a contribution to a forthcoming volume entitled Posthumous Art, Law and the Art Market, co-edited by Professor Peter J. Karol and Sharon Hecker, Ph.D., Art Historian and Curator (Routledge, forthcoming 2022).

Subotnik also presented an earlier version of the chapter in May at the Second Annual Art Law Works-in-Progress Colloquium, hosted virtually by New England Law and OSU Moritz College of Law. At that workshop, the commentator on her paper was Professor Jeannie Suk Gersen of Harvard Law School.

Here is the abstract of the chapter:

Postmortem copyrights in the United States allow for the control of art long after the artist has died. Successors to these interests, and even the public generally, may have bona fide reasons to encourage visual artists to be specific and comprehensive about the ways in which the artwork is to be reproduced and used after the artists’ deaths. Nevertheless, this chapter cautions that efforts to encourage visual artists to provide guidance should simultaneously discourage any attempts to make these instructions binding. First, it is not clear that purportedly binding testamentary instructions about these matters will be effective. Second, the proliferation of such instructions may run counter to the goals of copyright law, raising the question of whether they should be effective. In short, in these matters, dead-hand guidance is preferable to dead-hand control.

Eva E. Subotnik
Associate Dean for Faculty Scholarship
Professor of Law
Faculty Director, Intellectual Property Law Center

August 10, 2021

Roberts Presents at Evidence Summer Workshop

Professor Anna Roberts presented a work-in-progress, “Prior Conviction Impeachment of Prosecution Witnesses,” at the Evidence Summer Workshop, held virtually (photograph attached). Professor Lisa Kern Griffin of Duke Law provided commentary on her paper.

Professor Roberts has also accepted an invitation to join the Pedagogy Subcommittee of the Law School Anti-Racist Consortium (LSARC).

July 26, 2021

Roberts’s Article to be Excerpted in Fisher Evidence Casebook

Professor Anna Roberts has learned that Professor George Fisher will include an extract from her article Conviction by Prior Impeachment, 96 B.U. L. Rev. 1977 (2016), in the 2022 edition of his Evidence casebook. The abstract of the article is as follows:

Impeaching the testimony of criminal defendants through the use of their prior convictions is a practice that is triply flawed: (1) it relies on assumptions belied by data; (2) it has devastating impacts on individual trials; and (3) it contributes to many of the criminal justice system’s most urgent dysfunctions. Yet critiques of the practice are often paired with resignation. Abolition is thought too ambitious because this practice is widespread, long-standing, and beloved by prosecutors. Widespread does not mean universal, however, and a careful focus on the states that have abolished this practice reveals arguments that overcame prosecutorial resistance and that intervening developments have strengthened. It also reveals decades of courtroom experience, illustrating both the potential and weaknesses of existing bans on this form of impeachment. Examining and finding wanting the reasons for this practice’s ongoing existence, this Article proposes a model statute for states considering abolition.

Anna Roberts
Professor of Law
%d bloggers like this: