June 17, 2021

Roberts Leads Prior Conviction Impeachment Discussion at AALS

The AALS has selected a discussion group co-created by Professor Anna Roberts for the 2022 AALS Annual Meeting, which will be held virtually, and which will have the theme of “Freedom, Equality, and the Common Good.”

The discussion group is entitled “Critical Evidence Reform: How Do we Change Prior Conviction Impeachment in the U.S.?”

Confirmed participants include co-organizer Julia Simon-Kerr, John Blume, Bennett Capers, Montré Carodine, Jasmine Gonzales Rose, and Lisa Kern Griffin.

The proposal described the session’s focus as follows:

This discussion group will build on the momentum for reform of various facets of the criminal law to focus attention on the problem of prior conviction impeachment. Evidence law in almost every U.S. jurisdiction now permits witnesses’ prior convictions to be introduced as evidence in order to impeach their credibility. This practice of impeachment by prior conviction has been critiqued on many grounds, many of which are relevant to this year’s theme. Freedom is implicated by the use of convictions to bring about other convictions, often via improper means. Equality is implicated by the way in which longstanding biases along lines of race, in particular, are perpetuated. And the common good is implicated, because of this practice’s detachment from truth-seeking, and its tendency to chill essential testimony from defendants. The session aims to bring together scholars, practitioners and judges to continue efforts begun in early 2021 to organize around this issue and to think systematically about the way forward. How might we bring about long-awaited change in this area? We hope for a broad conversation among the participants and audience-members that will encompass aspects of federal and state practice in both criminal and civil contexts, and that will strengthen a concentrated effort at reform.

Anna Roberts
Professor of Law
June 10, 2021

Boyle Publishes in Special Edition of Peer-Reviewed Journal

Professor Robin Boyle published an article in a special edition of the International Journal of Coercion, Abuse, and Manipulation, a peer-reviewed journal. The issue focused on NXIVM and Scientology.  

Professor Boyle’s article is titled “Preventing Predatory Alienation by High-Control Groups: The Application of Human Trafficking Laws to Groups Popularly Known as Cults, & Proposed Changes to Laws Regarding Federal Immigration, State Child Marriage, & Undue Influence” (Vol. 1, Issue 2, June 2021).

In the article, Professor Boyle summarizes significant legal development in the United States. First, she highlights that the conviction obtained in the case of United States v. Raniere (E.D.N.Y.) set precedent for future criminal prosecutions against cult-like organizations committing human trafficking and other crimes. Second, Professor Boyle addresses statutory and court-imposed hurdles for asylum-seekers escaping cults from their countries-of-origin. Third, she highlights state statutes that have raised the minimum age for marriage, reducing the number of child brides who are often pressured by cults and high-control groups. Fourth, she advocates reducing the evidentiary burden of proving mental infirmity of the plaintiff in undue influence cases and focusing more on the harm caused by the defendant. Fifth, she brings attention to a bill pending in the New Jersey Legislature, the Predatory Alienation Bill, calling for ongoing public-awareness campaigns, alienation counseling, and other remedies.

The issue is available here.  

Professor Boyle presented developing aspects of this paper at the International Cultic Studies Association’s annual conferences held in Philadelphia, PA (2018) and in Manchester, England (2019); at the Harvard Medical School, Program in Psychiatry & the Law, a think-tank in Boston, MA (2019); and at the St. John’s Law School Faculty Retreat (2020).

Robin Boyle
Professor of Legal Writing

June 9, 2021

Sharfman’s Paper on Corporate Appraisal Featured on Bainbridge

Professor Keith Sharfman, a nationally recognized expert on valuation in corporate appraisal disputes and other legal contexts, has had a recently posted paper featured on Bainbridge, a widely read corporate law blog by UCLA corporate law scholar Stephen Bainbridge, which reviews the piece and describes it as an “[i]mportant new article.”

The paper, “The Exit Theory of Judicial Appraisal,” co-authored with Emory University corporate law scholar William J. Carney, builds on the authors’ prior work critiquing the “discretionary valuation” approach by which corporate valuation disputes are usually resolved. That approach tends to produce arbitrary and unpredictable valuation outcomes that encourage litigation and hinder settlement. Carney and Sharfman trace the history of the appraisal remedy and find that it was originally designed merely to ensure that minority shareholders could dissent and exit from a deal they did not like but not to guarantee that they would receive a fair (or even any) share of deal value. The paper further demonstrates that this “Exit Theory” objective is adequately protected by the extant private arrangements and fiduciary duty doctrines that are commonly utilized in current corporate law and practice.

The Bainbridge post is available here.

The full paper and abstract by Carney & Sharfman are available here.

Keith Sharfman
Professor of Law

June 2, 2021

Duryea Completes PhD and Presents Research at Workshop, Podcast

Professor Catherine Baylin Duryea recently successfully defended her dissertation, Practicing Human Rights in the Arab World: International Law in 20th Century Advocacy, and has fulfilled all the requirements for her PhD from the History Department at Stanford University. An article based on two chapters of her dissertation is forthcoming in the Berkeley Journal of International Law (Spring 2022). Professor Duryea presented a draft of the article at the Albany School of Law faculty workshop series and guest lectured on the topic at the North Carolina State History Department. Her dissertation abstract is below:

This dissertation explores how several Arab NGOs in Morocco, Palestine, Egypt and Kuwait practiced human rights from the late 1970s to the early 1990s. Drawing on institutional archives and interviews, it argues that these organizations provide new insights into the history of human rights both regionally and internationally. Located in a region battered by colonialism, foreign exploitation, and domestic autocracy, they are a valuable entry-point for considering the universality of rights and the extent to which Cold War politics shaped grassroots advocacy. The division between political and civil rights, and economic, cultural and social rights—so salient on the international level—was of minimal importance in shaping human rights advocacy on the ground. Instead, NGOs embraced those rights which most directly spoke to their particular political challenges and prioritized the most egregious state practices. Human rights activists found synergy between rights and nationalism, Socialism, democracy, and constitutional monarchy. Rights were not a single paradigm for how to organize political life, but part of several different visions that arose in response to the aftermath of the loss of the 1967 war with Israel. The 1970s and 1980s were period of both continuity, as advocates drew on the existing content of recent international treaties, and innovation, as they transformed the law from a text to a shared practice of resistance. 

Additionally, Professor Duryea’s ongoing research into the Emergency Court of Appeals, a specialized price court during WW2, was featured on a recent episode of the podcast Tech Refactored out of the Nebraska Governance and Technology Center. She discussed how the structure of the court and its exclusive jurisdiction over disputes arising out of price control ensured that judicial review of this massive regulatory system would be friendly towards regulators. The episode is available here.

Catherine Baylin Duryea
Assistant Professor of Law
June 1, 2021

Salomone Moderates at Princeton Symposium, and More

Professor Rosemary Salomone recently moderated a panel discussion on “Education” as part of the Language and Migration: Experience and Memory symposium hosted by Princeton University with the Study Group on Language and the United Nations, of which she is a member. She also was a guest speaker in an international seminar series on Language Policy and Practices in the Global North and South organized by Leiden University in the Netherlands. Her presentation, “In Search of Transformative Justice: The South African Constitutional Court and the Right to Education in the Language of One’s Choice,” examined two decisions upholding university language policies favoring instruction in English over Afrikaans and the implications for moving the country toward the Constitution’s promise of transformation and redress. In addition, she was invited by the National Coalition of Girls’ Schools to lead a discussion with NCGS Directors on legal updates including the Office for Civil Rights’ recently announced comprehensive review of Title IX regulations, as part of implementing President Biden’s March 8th Executive Order on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity

Rosemary Salomone
Kenneth Wang Professor of Law
May 19, 2021

Alvarez Publishes in Arizona State Law Journal Online

Professor Adrián E. Alvarez has published an article, Enabling the Best Interests Factors, in the Arizona State Law Journal Online as part of its COVID-19 Symposium Issue. He was invited to submit this contribution through the Association of American Law Schools’ (AALS) Section on Law and Mental Disability. The article is available here, and an abstract follows:

In February 2019, the media reported that the Office of Refugee Resettlement (ORR)—an agency within the U.S. Department of Health and Human Services (HHS) charged with the care and custody of unaccompanied immigrant children—was using minors’ admissions of prior gang affiliation during confidential therapy sessions as the sole criteria for “stepping up” children from low-security shelters to more restrictive and punitive detention facilities. ORR was also then sharing the therapy notes with the Department of Homeland Security (DHS) to use them against children in deportation proceedings. The newspaper article that broke the story noted that while the information sharing between HHS and DHS was “technically legal,” it was “a profound violation of patient confidentiality.” This article argues that these practices are not “technically legal” at all. They are illegal because they violate basic best interests principles now enshrined in the William Wilberforce Trafficking Victims Protection Recovery Act of 2008 (TVPRA), and, in some instances, they may violate Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (Title II), federal anti-discrimination laws designed to protect people with disabilities.

The best interests approach “is a dynamic concept that requires an assessment appropriate to the specific context,” and stepping up a child to a more restrictive setting based solely on prior gang affiliation is inconsistent with the procedural aspects of the best interests standard. Moreover, using gang affiliation revealed in therapy sessions as the sole criteria for sending a child to a more restrictive setting may also violate federal anti-discrimination statutes designed to protect children with disabilities. For instance, Section 504 and Title II’s regulations prohibit recipients of federal funds and public entities, respectively, from using “criteria or methods of administration . . . that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” Because confidentiality is required for therapy to succeed, this policy may unintentionally have the effect of substantially impairing unaccompanied minors from receiving the intended therapeutic benefits of the therapy session. Although gang affiliation is disability neutral on its face, it has a disparate impact on unaccompanied minors with psychosocial disabilities because there is a correlation between gang affiliation and emotional and behavioral disorders.

Adrián E. Alvarez
Assistant Professor of Law
May 17, 2021

SJ Presents at Empire State Legal Writing Conference

St. John’s Law faculty members—present and past—presented at the Biennial Empire State Legal Writing Conference, held virtually over May 13th – 14th. The two-day conference, with over 30 panel presentations, was hosted by New York Law School (NYLS) and its legal writing faculty; more than 200 participants registered. Legal writing professors from around New York State serve on the program committee, including Professor Robin Boyle, conference co-founder.

Professor Kayonia L. Whetstone, formerly of SJ and now an Assistant Professor of Lawyering Skills at Howard University School of Law, co-presented on the plenary panel: “Empire State and Association of Legal Writing Directors (ALWD) Scholarship Plenary: Making Progress on Scholarship with an Online Writing Group.” Two years ago at this very conference, Professor Whetstone and co-participants created a remote writing group to provide accountability for their scholarship. They presented on the different functions that their writing group has served, lessons learned from the process, and tools that helped them work together. They meet virtually twice each week.

Professor Boyle assisted in organizing the Scholars program, supported by a grant from the ALWD. Budding scholars in one breakout room discussed their “Germ of an Idea.” In another breakout room, “Drafts Review,” Professor Boyle co-led a three-hour session in which authors presented their full-length drafts of scholarly articles and participants commented. The topics for the developing scholarship were wide ranging. 

Professor Boyle also co-presented on a panel titled, “Swimming with Broad Strokes: Publishing and Presenting on Non-Legal Writing Topics.” This session encouraged participants to explore scholarly topics beyond the traditional legal writing discipline. Professor Boyle shared her experiences in researching, writing, and presenting on such topics as human trafficking, cults, and the civil rights movement.

Professor Rebecca Lowry also co-presented on a panel titled, “The Classroom Knows No Bounds.” This session addressed best practices to assist international J.D. and LL.M. students, non-native English speakers, and visiting and recently immigrated students. The panelists shared tips and practical exercises to help engage a diverse student body.

Professor Boyle gave the conference’s closing remarks and thanked NYLS and the conference participants.

Robin Boyle
Professor of Legal Writing

Rebecca Lowry
Adjunct Professor of Law
May 14, 2021

Barrett Delivers Romig Lecture at U.S. Army JAG School

On May 12, 2021, Professor John Q. Barrett delivered, on Zoom for Government, to The Judge Advocate General’s Legal Center and School, United States Army, in Charlottesville, Virginia, the Second Thomas J. Romig Lecture in Principled Legal Practice.

This lecture is named for and reflects the leadership of Major General Thomas J. Romig, United States Army (Retired), who served as 36th The Judge Advocate General of the U.S. Army.  General Romig today is a Professor of Law at Washburn University, where he previously served as Dean.

This year’s JAG School Romig Lecture program began with welcoming remarks by Brigadier General Joseph E. Berger, III, Commanding General of the JAG School.

Lieutenant General Charles N. Pede, 40th The Judge Advocate General of the U.S. Army, then introduced the Romig Chair.

Colonel Sean T. McGarry, JAG School Dean and Romig Chair holder, then introduced Professor Barrett.

Professor Barrett’s lecture, “Principled Legal Practice by Justice Robert H. Jackson at Nuremberg,” will be published later this year in the Military Law Review.

Alberto J. Mora, former General Counsel of the United States Navy, delivered the inaugural Romig Lecture in May 2019.

John Q. Barrett
Professor of Law
May 3, 2021

Sharfman Quoted on Purdue Disclosure Settlement

Last week, Professor Keith Sharfman was quoted in a Law360 feature story on the U.S. Trustee’s Office’s $1 million settlement with BigLaw firms for failure to disclose connections with the Sackler family and Purdue Pharma in its Chapter 11 case.

The story, in relevant part, stated that:

Keith Sharfman, a professor at St. John’s University School of Law, said professionals have broad duties of disclosure that led to the McKinsey disgorgement in 2019. That firm has about 30,000 employees and has worked on dozens of bankruptcy cases in recent years, so in a case like Purdue with a wide range of constituencies, complying with disclosure obligations could be a significant undertaking.

“[I]t is unsurprising that this type of disclosure violation could happen again in another case, as appears to have happened in Purdue,” Sharfman said.

A link to the full story is available here.

Keith Sharfman
Professor of Law

April 30, 2021

Sheff to Publish in Journal of Empirical Legal Studies (JELS)

Professor Jeremy Sheff’s manuscript, The Canada Trademarks Dataset, has been accepted for publication by the Journal of Empirical Legal Studies (JELS), a peer-reviewed interdisciplinary journal. The manuscript accompanies the release of an original research dataset compiled by Professor Sheff from Canadian government records and published on open-access terms. An abstract the article follows:

This article discloses and describes a new research dataset representing the Canadian Intellectual Property Office’s historical archive of trademark applications. This individual-application-level dataset includes all applications since approximately 1980, and many preserved applications and registrations dating back to the beginning of Canada’s trademark registry in 1865, totaling over 1.6 million applications. It includes comprehensive bibliographic and lifecycle data; trademark characteristics; goods and services claims; identification of applicants, attorneys, and other interested parties (including address data); detailed prosecution history event data; and links to application, registration, and use claims in countries other than Canada. Both the dataset and the code used to build and analyze it are presented for public use on open-access terms. This article uses the dataset to generate novel descriptive analyses of the performance of Canada’s trademark registration system and the behavior of applicants for registration, both independently and in comparison to the United States and Australia. These analyses suggest that Canada’s trademark registration system is substantially underperforming other nations with respect to efficiency of examination, and that recent statutory and regulatory changes in Canadian trademark law may have the effect of masking or even exacerbating this underperformance while decreasing the reliability of the Canadian trademark registry as an authoritative guide to trademarks used in Canadian commerce.

A pre-publication draft of The Canada Trademarks Dataset is available here

Jeremy N. Sheff
Professor of Law
Faculty Director, Intellectual Property Law Center

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