March 30, 2020

Joseph’s Book Reviewed in NY Times, London Review of Books, and Commonweal

Professor Lawrence Joseph’s book A Certain Clarity: Selected Poems was reviewed in The New York Times Book Review on March 17. In “Thinking About Empire and Economy, With a Lawyer’s Mind and a Poet’s Words,” Paul Franz writes:  “An intensely realized, intimate epic of modern American life . . . A Certain Clarity is a major work of American art.”

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A Certain Clarity was also reviewed in the March 19 issue of the London Review of Books by Michael Hofmann, who, in “On Lawrence Joseph,” writes: “Joseph has written five books of his stark and beautiful poems . . . Almost uniquely among contemporary American poets, Joseph doesn’t retail privities, doesn’t chase the miniscule scraps of sublimity left to us, doesn’t return to his literal or figurative cabin in the woods.”

Also, a feature on Joseph’s life and work by Anthony Domestico appeared in Commonweal on March 17. In “The Inexhaustible Poetry of Lawrence Joseph,” Domestico writes: “Since 1983, Joseph has been publishing books of poetry that, in their formal control and moral witness, match anything published in the past half-century . . . The range of Joseph’s writing  in this book, and throughout his career, is awesome.”

March 24, 2020

Perino’s Article to be Published in Washington & Lee Law Review

Professor Michael Perino‘s article, Real Insider Trading, has been accepted for publication in the Washington & Lee Law Review.  The article presents novel empirical research about how insider trading is enforced on the ground.

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Below is the abstract::

In popular rhetoric, insider trading cases are about leveling the playing field between elite market participants and ordinary investors. Academic critiques vary. Some depict an untethered insider trading doctrine that enforcers use to expand their power and enhance their discretion. Others see enforcers beset with agency cost problems who bring predominantly simple, easily resolved cases to create the veneer of vigorous enforcement. This debate has, to this point, been based mostly on anecdote and conjecture rather than empirical evidence. This article addresses that gap by collecting extensive data on 465 individual defendants in civil, criminal, and administrative actions to assess how enforcers operationalize insider trading doctrine. The cases enforcement authorities bring are shaped by a complex and cross-cutting set of institutional and individual incentives, cognitive biases, legal requirements, the history of failed enforcement efforts, and the way in which the agency and the self-regulatory organizations deploy their investigatory resources. SEC enforcement is dominated by small stakes, opportunistic trading by mid-level employees and their friends and family, most often involving M&A transactions. Those cases settle quickly, half within 30 days of filing. Criminal enforcement is generally reserved for more serious cases, measured by, among other things, the type of defendant, the size of the insider trading network, and the profits earned. In both settings, there is little evidence that enforcers are systematically stretching the boundaries of insider trading doctrine.

March 19, 2020

Krishnakumar’s Article to be Published in NYU Law Review

Professor Anita S. Krishnakumar‘s article, Cracking the Whole Code Rule, has been accepted for publication in the NYU Law Review.  The article provides a part-empirical, part-doctrinal analysis of how the U.S. Supreme Court uses cross-statute comparisons to determine the meaning of the statute at issue in a case.

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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 it is necessary to harmonize two related statutes with each other.

March 18, 2020

Evans’ Article to be Published in the Columbia Law Review

Professor Sheldon Evans’ article, Categorical Nonuniformity, has been accepted for publication in the Columbia Law Review.

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Here is the abstract:

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, however, the categorical approach produces the opposite. By examining the categorical approach in the criminal sentencing and immigration contexts, this Article shows that relying on state criminal elements has produced nonuniformity due to the variations of state law.

This Article examines and proposes remedies for the categorical approach’s nonuniformity problem. Although the Supreme Court has itself attempted to resolve this problem by deciding nearly twenty cases in the past twelve years with even more cases on its current docket, nonuniformity prevails. And while scholars are increasingly weighing in, this Article contributes to the literature by applying different theories of uniformity that juxtaposes the ideals of nationwide uniformity with the potential benefits of nonuniformity. This novel analysis supports at least two paths forward. First, if uniformity is to be prioritized, the elements-based categorical approach must be fundamentally redesigned to properly accomplish this goal. But given the difficulty of achieving genuine nationwide uniformity, keeping the elements-based categorical approach may be justified, albeit under a different theoretical framework that acknowledges the benefits of nonuniformity among states within a federalist system of government.

March 17, 2020

Boyle Signs Contract with Walters Kluwer, Publishes Article in IJCAM, and Places Book Review in IJCAM

Professor Robin Boyle has signed a publishing contract with Wolters Kluwer to provide its forthcoming segment on contract drafting questions for its online series called Connected Quizzing.  Connected Quizzing is a formative assessment tool for law students and professors available on CasebookConnect.com, covering a wide range of law school topics.  Contract Drafting will be a new topic for the series.
BoyleProfessor Boyle’s article, Preventing Predatory Alienation by High-Control Groups:  The Application of Human Trafficking Laws to Groups Popularly Known as ‘Cults,’ and Proposed Changes to Laws Regarding Federal Immigration, State Child Marriage, & Undue Influence, was accepted for publication in the upcoming inaugural issue of the International Journal of Coercion, Abuse, and Manipulation (IJCAM) (Summer 2020) (peer-reviewed).  The paper reflects feedback she’s received from presenting on topics of human trafficking and the Nxivm case at an International Cultic Studies Conference in Manchester, UK, last summer; she also incorporated valuable feedback from her presentation on undue influence at a think tank last Fall – Harvard Medical School, Program in Psychiatry & the Law.

In addition, Professor Boyle’s book review for a nonfiction book titled, Scarred: The True Story of How I Escaped NXIVM the Cult that Bound My Life, Author: Sarah Edmondson, is slated for publication also in IJCAM’s inaugural issue.

March 3, 2020

Krishnakumar Presents at Legislation Roundtable at Yale

On Friday, February 28, Professor Anita S. Krishnakumar presented her work in progress, “Inferring Meaning from Statutory History,” as part of an early stages projects panel at the biennial Legislation Roundtable held at Yale Law School. 

 

cropped-webpage-iThe Roundtable is a conference that brings together Legislation scholars from across the country to share and critique each others’ works-in-progress.  Last week’s event marked the Roundtable’s 10th Anniversary; in 2016, Professor Krishnakumar co-hosted the Roundtable with Professor Kate Shaw of Cardozo Law School.

March 2, 2020

Baum Presents at New York Law School Asylum and Immigration Law Conference

On February 28, Professor Jennifer Baum presented on a panel of child welfare and immigration experts at New York Law School’s Asylum and Immigration Law Conference.

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Jennifer Baum

Professor Baum drew on her years of experience representing migrant minors in federal and state courts, to address the unique ethical challenges of working with accompanied and unaccompanied immigrant children.

February 21, 2020

Salomone Extensively Quoted in Article on First UK Campus in Arab Maghreb Region

Professor Rosemary Salomone was extensively quoted in the February 8, 2010 edition of University World News.

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Rosemary Salomone

The article, “UK Campus May Help ‘Jump-Start’ Transition to English,” discusses the opening of a UK campus in Casablanca and the opportunity to spread English. Salomone agrees that the plan is reasonable, given the economic benefits of English in the global economy. She warns, however, that English is not necessarily a “win-win” for the disadvantaged. Severe inequities in Morocco’s primary and secondary schools, especially in access to English, will foreclose less privileged students from enrolling in the new venture, at least for the short term. She notes that moving further toward English instruction in Moroccan universities demands addressing those inequities for the long term. It also demands a national consensus on language that the country has yet to achieve in view of its complex history and linguistic makeup.

 

 

February 20, 2020

Joseph’s Work Praised in Law & Literature

An article on Professor Lawrence Joseph’s work, “The Substance of Poetic Procedure: Law & Humanity in the Work of Lawrence Joseph, Law & Literature,” by Frank Pasquale, Professor of Law at the University of Maryland, has been published in Law & Literature (Vol. 32, 1-46) .

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Professor Pasquale concludes his article: “Joseph’s work is . . . a miraculously humane document mapping the predicaments of an age when dystopian nonfiction outstrips the imaginings of diehard pessimists. Joseph inspires us to try to preserve love, beauty, and justice against the depredations of capital and violence, while squarely acknowledging how challenging that task will be. His oeuvre ascends from the temporal to the spiritual, while remaining grounded in the deepest tensions and tragedies of our time. Joseph’s poems structure a sensibility: that as post-, anti-, pre-, in-, and transhumanism threaten and beckon, law, literature and humanity stand (and fall) together, grounding us in the greatness and limits of language and embodiment.”

February 20, 2020

Greenberg Publishes Article in International Journal of Online Dispute Resolution, Blog Post at Duke’s Finreg

Professor Elayne E. Greenberg and her co-author Noam Ebner have published an article titled, “Where Have All the Lawyers Gone? The Empty Chair at the ODR Justice Table”  in the International Journal of Online Dispute Resolution.
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In addition, Professor Greenberg and Noam Ebner published, by invitation, a blog post titled, “How Much Justice Can You Afford” on the Duke Finreg Blog.
Here is the abstract for professor Greenberg’s article:
We are currently witnessing a revolution in access to justice and a parallel revolution in justice delivery, design and experience. As dispute resolution design scholars tell us, the implementation of any new dispute intervention plan in a system should involve all of its stakeholders from the beginning. In our justice system there are three primary stakeholders, who have been traditionally involved in processes of innovation and change: the courts, the parties and the lawyers. Courts and parties have been involved in the development of online dispute resolution (ODR). However, one significant justice stakeholder, the legal profession, has been relatively absent from the table thus far – whether by lack of awareness, by lack of will or innovative spirit or by lack of invitation: lawyers.
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