February 14, 2019

Krishnakumar Presents at Georgetown

On February 12, Professor Anita S. Krishnakumar presented her paper, Backdoor Purposivism, at a seminar at Georgetown Law School taught by Professors Lawrence Solum and Victoria Nourse.

Krishnakumar

Here is the abstract for Backdoor Purposivism:

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.

February 6, 2019

Krishnakumar Presents at Arizona State, Yale

On Monday, February 4, Professor Anita S. Krishnakumar presented her paper, Backdoor Purposivism, at a faculty workshop at  Arizona State Law School.  On Tuesday, February 5, she presented Backdoor Purposivism at a seminar on Statutory Interpretation Theory taught by Bill Eskridge at Yale Law School.

Krishnakumar

Here is the abstract for Backdoor Purposivism:

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 paper 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 paper 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.

February 1, 2019

Roberts Presents at Fordham, Drexel

On January 28, Professor Anna Roberts presented her paper, Arrests as Guilt, at a faculty colloquium at the Drexel University School of Law.  On Tuesday, February 5, Professor Roberts will present Arrests as Guilt at a seminar on “Criminal Law in Flux” taught by Professor Debby Denno at Fordham Law School.

Roberts

Below is an abstract of Arrests as Guilt:

An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct—frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrest in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences between arrest and guilt; if they run counter to an implicit fusion of the two, they will inevitably falter.

February 1, 2019

Wade to Deliver Keynote Address at Annual Review of Insolvency Law, Moderated Panel at AALS

Professor Cheryl L. Wade was invited to deliver the keynote address at the Annual Review of Insolvency Law in Montreal. The conference is sponsored by the University of British Columbia Centre for Business Law and the Allard School of Law. The title of her talk is “Foreclosure and the Subprime Market in the U.S. – Lessons of the Past Ten Years.” The conference agenda can be found here.

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Cheryl Wade

Professor Wade’s keynote will focus on an article she is coauthoring with Dr. Janis Sarra, the UBC Presidential Distinguished Professor and Director of the Peter Wall Institute for Advanced Studies about the foreclosure crisis, predatory lending, and the drain of wealth from communities of color. The article is the culmination of two years of research and programs about the targeting of consumers of color and foreclosure in general. Professor Wade and Dr. Sarra traveled to Detroit, Baltimore, and New York to interview predatory lending victims. The stories of the interviewees were captured in a song written by a professional composer and songwriter who used the content of the interviews to create the song. Professor Wade also participated in performances that explored issues relating to foreclosure and global financial markets. Professor Wade was a part of the post-performance discussions led by the cast and creators about the global financial crisis of 2008 and the impact on investors, consumers, and communities in the decade that followed. Funding for travel for the interviews and the performances was provided by a generous grant from the University of British Columbia. You can access video of scenes from the performance along with the song entitled “Homes and Hearts” that will be used as part of a package of materials designed to inform the public about the impact of predatory lending on communities of color here.

In January, Professor Wade moderated a panel entitled Globalization, Sustainability, and Firm Cultures for The American Association of Law Schools Section on Economic Globalization and Governance at the 2019 AALS Annual Conference in New Orleans.

Last year, Professor Wade traveled to Oxford University to participate in a roundtable discussion entitled “Unintended Consequences”. The roundtable focused on the regulation of financial markets that was aimed at averting another global recession.

January 22, 2019

Sovern Authors CNN.com Op-Ed and is Quoted in Media

On January 21, Professor Jeff Sovern published an Op-Ed about privacy issues at CNN.com titled, “Congress should follow California’s lead in protecting consumers.”

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Jeff Sovern

Here is an excerpt:

When it comes to these varied privacy problems, Congress has somehow managed to be both comatose and angry. Given its inability to respond nimbly in the rapidly shifting privacy arena, Congress should avoid hamstringing those who can. Any federal privacy law should preserve the power of states to protect consumers so states can continue experimenting and respond quickly to privacy challenges. Congress should also increase the FTC’s budget and give the Commission the power to issue regulations. Congress should follow California’s lead in obliging companies to tell consumers upon request what they know about them and what they do with the information. If Congress cannot help, it at least should not make things worse.

On December 17, a Politico newsletter quoted Sovern:

CRAPO PUSHBACK — St. John’s University Law School’s Jeff Sovern emails on the Senate Banking Committee and Deutshe Bank: “You quote Senator Crapo as saying the Senate Banking Committee does not investigate specific companies, but isn’t that exactly what the Committee did when, for example, it held hearings into the Wells Fargo unauthorized account scandal in 2016 and again in 2017, and into the Equifax security breach in 2017?”

A Consumer Reports article, “What to Expect From Class-Action Lawsuits Against Marriott” on December 5 also quoted Sovern:

You can opt out of a class action seeking damages. If you do, you’ll preserve your right to sue on your own, says Jeff Sovern, a professor at St. John’s University School of Law in New York. * * *

* * *  “Many consumers find it more of a bother to fill out the forms to get payment than the compensation is worth, depending on how much money they would receive,” says Sovern.

Finally, Sovern was also quoted in the Tampa Bay Times on August 14 in a story, “Ohio TV ad, Republican group misleads in attack on Richard Cordray’s tenure at consumer bureau.”

January 21, 2019

Sheff Speaks on Art Law Section Panel at AALS Annual Meeting

sheff aals 2019 panelCaption: Professor Sheff speaks on AALS Art Law panel: The Use (and Abuse) of Trademarks in Art: Referential Uses, Lazy Art, and Cultural Salience. Photo Credit: Irene Calboli

On January 5, 2019, IPLC Faculty Director Professor Jeremy Sheff spoke on a panel at the annual meeting of the Association of American Law Schools in New Orleans. The panel discussion, organized by the Art Law Section, was entitled: The Use (and Abuse) of Trademarks in Art:  Referential Uses, Lazy Art, and Cultural Salience. Professor Sheff’s comments focused on the caselaw that has developed around the unauthorized use of trademarks and celebrity likenesses in entertainment products, and whether the principles developed in those cases have application to the world of the visual arts.

January 15, 2019

Joseph Speaks at Society of Christian Social Ethics, Detroit Public Library, and Wayne State

Tinnelly Professor of Law Lawrence Joseph was the Keynote Speaker at the annual meeting of The Society of Christian Social Ethics in Louisville, Kentucky on January 4, 2019. larry joseph photoHe presented a lecture titled, “Addressing Christian Social Ethics in Poetry.” The talk was convened by M. Cathleen Kavany, the Darald and Juliet Libby Professor of Law and Professor of Theology at Boston College, and respondents were Emile M. Townes, Dean of the Divinity School and E. Rhodes and Leona B. Carpenter Professor of Womanist Ethics and Society, Vanderbilt University, and Diana Fritz Cates, Professor, Religious Ethics, University of Iowa. The Society of Christian Social Ethics is the major professional society of scholars of Christian ethics and moral theology in North America.

On October 20, 2018, Professor Joseph presented a talk as the featured speaker of the 28th Annual Bernard Firestone Memorial Labor Arts Program, at the Detroit Public Library.

On October 19, 2088, he presented a talk on “Contemporary Arab American Literature: Intersections of Race, Gender, and Class” at the annual North American Labor History Conference, Wayne State University.

December 6, 2018

Sovern and Calabrese Publish Op-ed on Bloomberg Law

Professor Jeff Sovern and Professor Gina Calabrese published an op-ed on BloombergLaw, “Why the ABA is Wrong on Amending Debt Collection Bill.”

 

calabresejeff sovern

Sovern and Calabrese disagree with the American Bar Association’s support of H.R. 5082, which would exempt attorneys’ litigation activities from the federal Fair Debt Collection Practices Act.  They argue that the ABA’s premise – that state ethics rules and state court oversight already curb collection attorney misconduct – is wrong because it is contradicted by the experience of regulators and by Calabrese’s experience representing consumers in the Consumer Justice for Elderly: Litigation Clinic.

December 6, 2018

Boyle Presents at University of Oregon

Professor Robin Boyle presented at the One Day Legal Writing Workshop held at University of Oregon School of Law on November 30, 2018.

Boyle

The topic of the Workshop was teaching our students to become scholars. Professor Boyle’s presentation focused on the Scholarly Research and Writing course that she taught this Fall and, specifically, the use of students’ peer critique and oral presentations.

In 2009, Professor Boyle co-founded the One Day Workshops. St. John’s Law School was one of two schools holding it that year. Since then, the workshops have been held annually in December at law schools around the country.

On December 1, 2018, Professor Boyle presented work-in-progress at the Scholars Forum also held at University of Oregon and sponsored by the Association of Legal Writing Directors. The work that she presented stemmed from her presentation last July at the International Cultic Studies Association Annual Meeting held in Philadelphia, PA. She is developing an essay on the federal criminal prosecution against Nxivm, which is employing the human trafficking statutes and other laws to prosecute the so-called self-help organization. Previously, Professor Boyle published an article encouraging authorities to use the human trafficking statutes to prosecute cult leaders.

December 5, 2018

Greenberg’s Article to be Published in the Arizona State Law Journal

Professor Elayne Greenberg‘s article, Hey, Big Spender: Ethical Guidelines for Dispute Resolution Professionals when Parties are Backed by Third-Party Funders, has been accepted for publication in the Arizona State Law Journal.

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Here is the abstract:

This first of its kind paper introduces ethical guidelines and suggested practices for dispute resolution providers and neutrals when third-party funders provide financial backing for parties in U.S. domestic arbitrations and mediations. Third party funding has become an economic necessity to fund the escalating costs of litigation and dispute resolution. Sophisticated third-party funders have realized that litigation and dispute resolution are fast-growing, unregulated, investment opportunities and are seizing these opportunities. Third-party funders are now making billions of dollars in profits through their strategic investments in domestic and global litigation and dispute resolution with few ethical rules or regulations to curtail their investment behavior. Preferring to be secretive about the terms of their funding contracts and invisible in their work, third-party funders are flourishing, in large part, by operating below the regulatory radar. Our global brethren have adopted legislative and regulatory initiatives that require greater transparency when funders are providing financial backing for parties in international arbitration and mediation.

In the U.S., however, the funders’ behavior has been allowed to proceed invisible and unchecked because domestic courts and dispute resolution providers and neutrals are too often unaware that a party is even receiving third-party funding. Such unawareness presents a potential ethical minefield, not just for judges and litigators, but also for dispute resolution providers and neutrals. Moreover, such unawareness deprives dispute resolution participants of the third party funder’s sophisticated case assessment, that could be used to help shape settlement. This paper ignites the need for awareness, expands the evolving discussion about the ethics of third-party funding to U.S. dispute resolution and refocuses on providing comprehensive ethical guidance and practice strategies for dispute resolution providers and neutrals when litigation funders back parties in arbitration and mediation.

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