April 23, 2019

Warner’s Article to be Published by the International Insolvency Review

Professor G. Ray Warner’s article, Conflicting Norms: Impact of the Model Law on Chapter 11’s Global Restructuring Role, has been accepted for publication by the International Insolvency Review.


G. Ray Warner

The article explores the conflict created in domestic United States insolvency law by the adoption of the UNCITRAL Model Law on Cross-Border Insolvency. The Model Law, now Chapter 15 of the U.S. Bankruptcy Code, takes a modified universalist approach to cross-border bankruptcy that designates a debtor’s center of main interest [“COMI”] as the primary jurisdiction for a global restructuring. This COMI-centric approach is in conflict with the U.S.’s long-standing COMI-neutral policy of encouraging debtors with no significant U.S. connections to use Chapter 11 for global restructurings. The article analyzes the extent to which the Model Law’s COMI-centric norm has changed the U.S. courts’ willingness to accept Chapter 11 cases filed by foreign debtors.

April 5, 2019

McGuinness Interviewed by BBC World Service

Professor Peggy McGuinness was interviewed by BBC World Service about the U.S. government’s decision to revoke the visa of International Criminal Court Prosecutor Fatou Bensouda.


Professor McGuinness addressed the history of U.S. engagement with the ICC, the Trump administration’s confrontational stance toward the court, and how Bensouda’s pursuit of an investigation about potential war crimes committed by U.S. military and intelligence personnel in Afghanistan led the U.S. to block Bensounda’s plans to engage in fact finding in the U.S.

A video of the live interview can be found here.

April 4, 2019

Roberts Presents at Seton Hall

On April 3, Professor Anna Roberts presented her article, Convictions as Guilt, at Seton Hall Law School.  Convictions as Guilt is forthcoming in the Fordham Law Review.


Here is the abstract:

A curious tension exists in scholarly discourse about the criminal justice system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, which presents carrots and sticks to innocent and guilty alike, and the subordination of the defense, symbolized by resource disparities that prevent even narratives of innocence from getting a fair hearing. On the other hand, in a variety of contexts, scholars discuss those with criminal convictions in a way that appears to assume crime commission. This assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding race- and class-based stereotypes of criminality. From careful examination of this phenomenon and its possible explanations, reform proposals emerge.

April 4, 2019

Sharfman Presents at Touro

On April 1, Professor Keith Sharfman presented his article, “Economic Analysis of Jewish Law,” at Touro Law School.  A video of the presentation is available here.

Keith Sharfman

Professor Sharfman is introduced by St. John’s colleague, Professor Ettie Ward, at the 2:28.11 mark, and the talk runs till the 2:48.10 mark.  The article is slated to appear in a future issue of the Touro Law Review.

April 2, 2019

Krishnakumar Presents at University of Houston Law Center

On April 1, Professor Anita S. Krishnakumar presented her article, Backdoor Purposivism, at the University of Houston Law Center’s Faculty Colloquium.  Backdoor Purposivism is forthcoming in the Duke Law Journal


Here is the abstract:

It has become standard, among statutory interpretation commentators, to declare that “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court—including those considered purposivists—pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined compared to its heydey in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute—or, alternately, using purpose as a threshold consideration in determining whether a statute is ambiguous in the first place.

This Article breaks from the conventional “purposivism is dead or dying” wisdom in two important ways. First, it argues, based on empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not. Second, and perhaps more importantly, the Court’s textualist Justices quietly have been engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress in many cases. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent. The Article suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest—but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text-focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit, in order to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.


March 29, 2019

Warner Presents at INSOL Singapore Academics’ Colloquium

On April 2, Professor G. Ray Warner will present a paper analyzing the impact of the


G. Ray Warner

Model Law on Cross-Border Insolvency on the U.S. courts’ exercise of jurisdiction over chapter 11 cases involving non-US companies at the INSOL Academics’ Colloquium in Singapore.

March 28, 2019

Sheff’s Essay to be Published in the Seton Hall Law Review

Professor Jeremy Sheff’s new essay, I Choose, You Decide: Structural Tools for Supreme Court Legitimation, has been accepted for publication in the Seton Hall Law Review.


Jeremy Sheff

In light of increasing partisan polarization over Supreme Court appointments, Professor Sheff’s essay argues in favor of changing the way cases are selected for the Court’s discretionary appellate docket. Specifically, he proposes separating the authority to select cases for review from the authority to decide those cases. The essay makes the case that such a reform could both de-escalate the confirmation wars and help rehabilitate the Court’s increasingly threatened legitimacy without requiring a constitutional amendment.

Here is the abstract:

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus on reforms to the selection, appointment, or tenure of Justices. I propose a different, and perhaps complementary reform, which would not require constitutional amendment. I propose that the selection of a case for the Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case. The proposal leverages the insight of the “I cut, you choose” procedure for ensuring fair division—only here, it manifests as “I choose, you decide.” This proposal, rather than attempting to correct any supposed institutional deficiency that exacerbates the effects of partisanship, instead seeks to create a structure of checks and balances by pitting partisanship against partisanship.

March 26, 2019

Sharfman Publishes Essay in Harvard Forum on Corporate Governance and Financial Regulation

Professor Keith Sharfman‘s essay, Will Aruba Finish Off Appraisal Arbitrage and End Windfalls for Deal Dissenters? We Hope So, co-authored with William Carney, has been published in the Harvard Forum on Corporate Governance and Financial Regulation. 
Keith Sharfman
The essay concerns the Aruba appeal now pending in the Delaware Supreme Court (with oral argument scheduled for March 27).
March 26, 2019

Movsesian Presents at George Mason Conference

On March 22, Professor Mark Movsesian presented his article, “Masterpiece Cakeshop and the Future of Religious Freedom,” at a conference on “Religious Freedom and the Administrative State” at the  Center for the Study of the Administrative State at George Mason University’s Scalia Law School.


Mark Movsesian

A video of Professor Movsesian’s presentation, as well as a response panel, will appear at the Center’s website. Professor Movsesian’s article will appear in the current volume of the Harvard Journal of Law and Public Policy.

Here is the abstract:

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.

March 22, 2019

Barrett Lectures & Recent Op-Eds

Professor John Q. Barrett delivered the following lectures since last summer:

  • On October 5, 2018, he gave the Keynote Lecture, “Justice Jackson & Jehovah’s Witnesses: Barnette in Its Context, and in Jackson’s Life and Work,” at a symposium, “Barnette at 75,” at Florida International University College of Law in Miami, FL.  Video of this lecture, beginning with the Dean’s introduction of Professor Barrett, is  here online, starting at time counter reading 4:31:58.  jqb photo
  • On October 10, Professor Barrett spoke on “U.S. Supreme Court, October Term 2017:  Justice Kennedy Built Two Ramps,” at a Federal Bar Association program at the U.S. Courthouse in Central Islip, NY.
  • On October 18, Professor Barrett delivered a principal lecture, “Justice Robert Jackson and the Nuremberg Trials,” at the 74th Judicial Conference of the United States Court of Appeals for the Third Circuit, held in Wilmington, DE.  Other lecturers at the conference included U.S. Supreme Court Justice Samuel Alito, former Vice President Joseph Biden, U.S. Deputy Attorney General Rod Rosenstein, and Professor and former NAACP Legal Defense Fund Director-Counsel Theodore Shaw.
  • On October 30, Professor Barrett spoke on “U.S. Supreme Court, October Term 2017, and A Look Ahead,” at the Queens County Bar Association in Queens, NY.  His fellow lecturer was attorney Paul Shechtman, partner in Bracewell LLP.
  • On December 5, Professor Barrett delivered a Grand Rounds Lecture, “Robert H. Jackson on Immigration, Citizens, Power & Liberty,” at the City University of New York (CUNY) School of Public Health in Manhattan.
  • On February 14, 2019, Professor Barrett delivered a lecture, “American Gifts (1940 & 2019),” at a U.S. Citizenship Naturalization Ceremony at the United States Bankruptcy Court for the District of New Jersey, in Trenton.  His fellow lecturer was New Jersey Attorney General Gurbir Grewal.

Professor Barrett also recently published these op-ed articles:

Cohen’s Sentencing Clears A Path For Congress To Uncover The Truth, Washington Post, Dec. 13, 2018

 How Congress Can Stop Trump’s Emergency, Washington Post, Jan. 9, 2019 (online)

Milbank Loses Hope … And Hadley and Tweed and McCloyNew York Law Journal, Mar. 5, 2019, p. 6

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