January 14, 2021

Salomone Participates in Global Summit

On January 13th, Professor Rosemary Salomone participated in a panel discussion on “Minorities, Equality & Divided Societies” as part of the Global Summit sponsored by the International Forum on the Future of Constitutionalism at the University of Texas School of Law. Her presentation entitled, “Transformative Constitutionalism: Education and Linguistic Rights in South Africa,” focused on the transformative nature of the South African Constitution and its role in resolving enduring disputes over language and race in South African society. Looking at three decisions of the Court over the past decade, she specifically put into question a recent shift in the Court’s approach from redressing the wrongs of the past, set against the history of apartheid, to addressing present inequities within a more conciliatory and inclusive multilingual narrative. The presentation was based on a chapter in her forthcoming book on “The Rise of English” to be published by Oxford University Press.

Rosemary Salomone
Kenneth Wang Professor of Law
January 13, 2021

Sovern Pens NY Daily News Essay, Draws Attention from the CFPB, WaPo, and Salon

The New York Daily News published Professor Jeff Sovern’s op-ed, The COVID liability charade: Mitch McConnell’s demand is built on dishonest claims, on December 15. Salon quoted the op-ed on December 20. On December 18, the Consumer Financial Protection Bureau (CFPB) published a debt collection rule in which it quoted from one article Sovern co-authored, and cited another. On January 5, the Washington Post published an essay by columnist Katrina vanden Heuvel, editor and publisher of The Nation, in which she referred to a piece Sovern co-authored with Hofstra Law Professor Norman I. Silber as putting forth a “big idea.” 

Jeff Sovern
Professor of Law
January 7, 2021

Roberts Takes Leadership Roles on Evidentiary Issues

Professor Anna Roberts has been elected to the Executive Committee for the AALS Section on Evidence. She is also spearheading, in partnership with Julia Simon-Kerr, an initiative to reform prior conviction impeachment. This initiative will bring together a group of the leading scholars on prior conviction impeachment, with the aim of identifying states where reform is both needed and potentially viable, and then partnering with local advocates to attempt to bring about reform, whether through amicus briefs or other efforts.

Anna Roberts
Professor of Law
December 8, 2020

Movsesian Named Co-Editor of Cambridge Journal

Congratulations to Professor Mark Movsesian, who has been named a Co-editor at the Journal of Law and Religion (Cambridge). Information is available here.

Mark L. Movsesian
Frederick A. Whitney Professor of Contract Law &
Co-Director, Center for Law and Religion
December 1, 2020

Movsesian Speaks at Moscow State University Roundtable

Professor Mark Movsesian spoke recently at a roundtable on law and religion at Lomonosov Moscow State University, along with faculty colleagues from Russia, Greece, Canada, Italy and Israel. More information is available here, and a YouTube Video of the event is available here.

Mark L. Movsesian
Frederick A. Whitney Professor of Contract Law &
Co-Director, Center for Law and Religion
December 1, 2020

Krishnakumar Presents at Georgetown

On November 20th, Professor Anita Krishnakumar presented her paper Cracking the Whole Code Rule at a virtual faculty workshop at the Georgetown University Law Center. Cracking the Whole Code Rule is forthcoming in the N.Y.U. Law Review.  

Here is the abstract:

Over the past three decades, since Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.”  In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.”  Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.  One prominent article on the topic, published twenty years ago, criticized the Court for treating statutes enacted at different times by different legislators as though they were enacted by one, never-changing Congress.  Other scholars have touched on the topic in passing, but no one has systematically studied how judges employ this interpretive tool.

This article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of  532 statutory cases decided during the Roberts Court’s first twelve-and-a-half terms.  The article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions.  The article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons.  For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third of the cases compare statutes that regulate entirely unrelated subject areas.  Moreover, many of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.  

The article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural drafting choices.  The article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise.  It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other.  

Anita S. Krishnakumar
Mary C. Daly Professor of Law
November 30, 2020

Baum Speaks at New York Law School

Professor Jennifer Baum, Director of the Child Advocacy Clinic, spoke at New York Law School last week on the role of the Attorney for the Child in Family Court and State Supreme Court proceedings. Prof. Baum addressed the ethics of substituting judgment for very young children, and she provided practice tips for interviewing and representing children and youth in juvenile delinquency proceedings. 

Jennifer Baum
Professor of Clinical Legal Education &
Director, Child Advocacy Clinic
November 11, 2020

Allen Presents Her Article

On October 23rd, Professor Renee Nicole Allen presented her paper, From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy, at a virtual workshop in the Theorizing Feminist Solidarity and Racial Justice in Academia series. A recording of her talk can be viewed here

On November 10th, Professor Allen spoke with UCLA law students about her paper as part of a Black Scholar’s Forum. 

From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy is forthcoming in the UCLA Law Review. 

Renee Nicole Allen
Assistant Professor of Legal Writing
November 11, 2020

Baum Honored by Children’s Law Center

On October 22nd, Professor Jennifer Baum was honored by the Children’s Law Center of New York for her volunteer work on an international child abduction case brought under the Hague Convention in the Eastern District of New York.  Professor Baum’s work on behalf of four of the six subject children resulted in the children remaining safely with their mother, who had brought them to New York after fleeing a cult in Guatemala.  The children ranged in age from six to 12.  Professor Baum provided litigation support and Hague Convention child abduction expertise to the Children’s Law Center’s representation of the children in Federal and State court proceedings.

Jennifer Baum
Professor of Clinical Legal Education &
Director, Child Advocacy Clinic
November 10, 2020

Krishnakumar Presents at William & Mary School of Law

On November 5th, Professor Anita Krishnakumar presented her paper Cracking the Whole Code Rule at a virtual faculty workshop at the William & Mary School of Law. Cracking the Whole Code Rule is forthcoming in the N.Y.U. Law Review. Here is the abstract:

Over the past three decades, since Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.”  In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.”  Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.  One prominent article on the topic, published twenty years ago, criticized the Court for treating statutes enacted at different times by different legislators as though they were enacted by one, never-changing Congress.  Other scholars have touched on the topic in passing, but no one has systematically studied how judges employ this interpretive tool.

This article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of the full universe of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half terms.  The article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions.  The article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons.  For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third of the cases compare statutes that regulate entirely unrelated subject areas.  Moreover, many of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.  

The article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural drafting choices.  The article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise.  It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other. 

Anita S. Krishnakumar
Mary C. Daly Professor of Law
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