April 19, 2018

Sheff’s Article to be Published by Cardozo Law Review

Professor Jeremy N. Sheff‘s article, “Legal Sets,” has been accepted for publication in the Cardozo Law Review.

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Here is the abstract:

In this Article I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned, not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases, and help organize the available options for resolving such cases according to their form. While many legal professionals may intuitively navigate this set-theoretic structure, the formal model of that structure has important implications for legal theory. In particular, it generates a useful account of the relationships among rules, standards, and principles; provides a novel set of tools for understanding the nature of precedent; and illuminates an extra-linguistic dimension to the problem of judicial discretion. On the last point, I argue that discretion is not merely a product of the imperfect relationship between abstractions and reality, or between natural language and the world, but that it is instead an emergent structural property of the structure of legal practice: a structure composed of sets “all the way down.”

April 18, 2018

Krishnakumar Presents Article at University of Virginia Law Review Event

On Friday, April 13, Professor Anita S. Krishnakumar discussed her article, Textualism and Statutory Precedents, 104 Va. L. Rev. 157 (2018), with Professor Saikrishna Prakash at a panel hosted by the Virginia Law Review.  The online version of the article, which was just published this past week, can be found here.  Krishnakumar

Here is the abstract:

This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: the Court’s textualist Justices—or at least some subset of them—have proved remarkably willing to abandon stare decisis and to argue in favor of overruling established statutory interpretation precedents. This is especially curious given that statutory precedents are supposed to be sacrosanct. Congress, rather than the Court, is the preferred vehicle for correcting any errors in the judicial construction of a statute, and courts are to overrule such constructions only in rare, compelling circumstances. What, then, accounts for the textualist Justices’ unabashed willingness to overrule statutory precedents in recent years? And how can this practice be reconciled with textualism’s core aims of promoting clarity and stability in the law?

This Article advances a threefold thesis. First, it argues that the textualist Justices view precedents that create a test for implementing a statute (e.g., the “motivating factor” test for Title VII violations) as different from ordinary text-parsing statutory interpretation (e.g., “labor” means “manual labor”). More specifically, textualist jurists regard what I call “implementation test” precedents as akin to common-law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation-test exception” to the heightened stare decisis protection normally afforded statutory precedents. Second, the Article links textualist Justices’ proclivity for overruling to an oft-unspoken predicate assumption of textualism—that is, that there is a singular “correct answer” to every question of statutory interpretation. This assumption may make it especially difficult for textualist jurists to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. Last, the Article notes that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order, including outmoded precedents reached through the use of illegitimate, atextual interpretive resources.

Ultimately, the Article both supports and critiques textualist Justices’ approach to statutory precedents. On the one hand, it argues that a relaxed form of stare decisis for implementation test precedents makes sense for many reasons, as long as special deference is given to implementation tests that Congress has expressly endorsed. At the same time, it rejects textualists’ attempts to overrule non-implementation test precedents based on simple disagreement with the original interpretation.

 

April 12, 2018

Movsesian Presents as Guest Speaker at Columbia

On April 2, Professor Mark Movsesian participated as a guest faculty member in a Columbia Law School seminar, “Reading Group in the American Constitutional Tradition.”

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Mark Movsesian

The seminar, for 2Ls, 3Ls, and LLM students, examines important texts in American constitutional history. The session in which Professor Movsesian participated, hosted by Columbia law professor Philip Hamburger, focused on excerpts from Tocqueville’s “Democracy in America.”

April 12, 2018

Joseph Publishes Chapter on Narrative and Metaphor, Speaks at Georgetown and Minnesota, and has Book Reviewed in NY Times, Wall Street Journal and Other Newspapers

Professor Lawrence Joseph article “Through Narrative and By Metaphor: Creating a Lawyer-Self in Poetry and Prose” is included in Narrative and Metaphor in the Law, edited by Mike Hanne and Robert Weisberg (Cambridge University Press, 2018).  larry joseph photo

On February 1, 2018, he spoke at Georgetown University in its Faith and Culture Series, through the office of Georgetown President John J. DeGioia.

So Where Are We?, Professor Joseph’s most recent book of poems, was praised by David Skeel” in the Wall Street Journal, on September 11, 2017 as including poems both “relevant and lasting.”  On October 5, 2017, he read from his poetry at the University of Minnesota, and, on November 2 and 3, 2017, he was a featured writer at the University of Florida’s Writer’s Festival.  An interview of Professor Joseph with Marianne Szegedy-Maszak appeared in Mother Jones on November 25, 2017.  On December 22, 2017, So Where Are We? was named among the “Ten Best Books of Poetry for 2017” in the New York Times Book Review. In the Times Literary Supplement on January 9, 2018, Declan Ryan describes So Where Are We? as “poetry of the immediate present built to outlast ephemerality.”An interview with Professor Joseph by Philip Metres is featured in the Winter-Spring 2018 issue of the Michigan Quarterly Review.

April 10, 2018

Sovern to Publish Article in Rutgers, Spoke at PLI and Hofstra, and Quoted in LA Times

Professor Jeff Sovern‘s article, Validation and Verification Vignettes: More Results from an Empirical Study of Consumer Understanding of Debt Collection Validation Notices​ (with Dr. Kate Walton and Nathan Frishberg), will appear in the Rutgers Law Review.  The article follows up on Sovern’s earlier article with Walton, Are Validation Notices Valid? An Empirical Evaluation Of Consumer Understanding Of Debt Collection Validation Notices, 70 SMU L. Rev. 63 (2017)​.

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Jeff Sovern

On March 26, Professor Sovern spoke at the Practising Law Institute’s Annual Consumer Financial Services Institute on a panel titled The CFPB Under the Trump Administration: Where is it now and where is it going? On April 5, he spoke at Hofstra Law School. And on March 15, in an article headlined 56 years later, Kennedy’s call for a consumer bill of rights is forgotten under Trump, Sovern was quoted as follows:

“Overall, I would say things are better than they used to be,” said Jeff Sovern, a professor at St. John’s University School of Law in New York. “But under this president, the government is not keeping Kennedy’s commitment to protect consumers.”

He added: “I could imagine Trump first endorsing a consumer bill of rights, and then walking it back after he spoke to lobbyists and members of his administration, which unfortunately may be the same thing at this point.”

April 10, 2018

Professor Eva Subotnik Moderates Panel at 19th Century Law & Art Conference

Last week, Professor Eva Subotnik moderated a panel at the interdisciplinary conference, “Images, Copyright, and the Public Domain in the Nineteenth Century,” held at the Winterthur Museum, Garden & Library, near Wilmington, Delaware, in partnership with LARCA (Laboratoire de recherche sur les cultures anglophones), Université Paris Diderot and with the generous support of the Terra Foundation for American Art.

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Eva Subotnik

Professor Subotnik’s panel, “Photographers, the Press, and the Law,” touched on issues she has written about, most recently in her essay The Author Was Not an Author: The Copyright Interests of Photographic Subjects from Wilde to Garcia, 39 Colum. J.L. & Arts 449 (2016) and in her co-authored study of contemporary professional photographers. A full description of the conference follows:

Why did copyright law protect engraved reproductions but not paintings or sculptures for most of the 19th century? As the industrial revolution made images more readily available than ever before, what rights belonged to their creators, purchasers, or publishers? Was it legal or culturally acceptable to reproduce or transform a picture into other forms? Did individuals have ownership in their own likeness? Was photography responsible for the elaboration of our modern legal framework for artistic authorship?

Join historians of material culture, art, law, and literature for a series of focused talks and debates about the relationship between copyright law and the cultural, economic, and technological factors that transformed the pictorial landscape of the 19th century. Copyright policies had, and continue to have, a profound impact on the creation and circulation of creative works. This Winterthur conference invites you to explore a formative moment in the history of law and the visual arts in America.

April 6, 2018

Movsesian Presents at George Mason

In March, Professor Mark Movsesian presented a paper, “The Future of Religious Freedom,” at a workshop on Religion and the Administrative State at the Center for the Study of the Administrative State at George Mason University Law School.

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Mark Movsesian

He is spending the semester as a visiting fellow​ at the James Madison Program in the Politics Department at Princeton University.

April 5, 2018

Levine Presents at Illinois Law Review Symposium

On April 4, 2018, Professor Kate Levine participated in an invited symposium for the University of Illinois Law ReviewlevineThe symposium was on “Federal Responses to Police Misconduct.”  Kate will co-author a piece for the symposium issue with Stephen Rushin (Loyola Chicago Law School).  Their piece, tentatively titled, Interrogation Parity, will address the rights police erect for themselves when they become the subject of internal or criminal investigation. It will recommend a Federal Law Enforcement Officers’ Bill of Rights (LEOBOR), that is conditioned on police departments offering the same interrogation protections they want for themselves to ordinary citizens. The essay will argue that many of the rights police negotiate for themselves, including allowing for bathroom breaks, sleep, food, and preventing long interrogation sessions, lies about penalty exposure, and abusive psychological tactics, although not guaranteed by the Constitution, should be applied to all suspects for numerous reasons. Perhaps the most important reason to extend these rights to all suspects is the frightening number of exonerees who were convicted based on false confessions, many of these exonerees are particularly vulnerable suspects — children, the mentally ill, and the intellectually disabled. Unlike many who study state LEOBOR’s, Levine and Rushin, also believe that police deserve certain protections when they face interrogation, and argue that criminal justice reform advocates urge parity through federal legislation extending these rights to all rather than attempting to strip these protections from the police.

March 28, 2018

Wade Lectures at University of Houston Law Center

Professor Cheryl L. Wade presented two lectures to the students and alumni at the University of Houston Law Center.

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Cheryl Wade

The lectures, entitled The Historical Significance of Black Migration, the Search for Work, and the Impact of Corporate Governance, were part of Dean Leonard M. Baynes’ Black History Month lecture series, now in its fourth year. Professor Wade was interviewed for the radio program Houston Matters, a Houston NPR affiliate, about the substance of her presentations. The interview can be found here.

 

March 27, 2018

Montana’s Article Selected for Publication in Legal Writing Institute’s Monograph Series

The Legal Writing Institute has selected Professor Patricia Montana’s article, Bridging The Gap in the Law School Classroom, to be published in Volume 7 of its Monograph Series.

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Patricia Montana

The Monograph Series is an electronic journal published by the Legal Writing Institute on its web site. The Monograph Series reprints foundational articles on subjects that are important to the teaching and study of professional legal communication. Volume 7 of the series is an update to Volume 2, the New Teacher’s Deskbook. The updated New Teacher’s Deskbook will focus on topics important to new legal writing professors, including legal writing pedagogy, legal research, and legal writing careers.

Professor’s Montana’s article, Bridging The Gap in the Law School Classroom, was originally published in 2017 in Volume 45 of the Capital University Law Review. The article explores ways to close the gap in the reading skills of entering law students so that they can develop the competencies in legal reading, analysis, and writing required to excel in law school.

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