October 24, 2016

Krishnakumar Presents Paper at University of Pennsylvania Law School

On October 18, Professor Anita S. Krishnakumar presented her paper, “Veiled Avoidance,” at a seminar on Advanced Statutory Interpretation and Legislation run by Professors Jonah Gelbach and Ryan Doerfler at the University of Pennsylvania Law School.  Here is the abstract:  cropped-webpage-i

In its nascent years, the Roberts Court quickly developed a reputation—and drew sharp criticism—for using the canon of constitutional avoidance to rewrite statutes in several controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn—quietly creating exceptions or reading in statutory conditions in order to elide potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely (conspicuously) missing from many cases decided during the Court’s most recent terms—doing significant work in only one majority opinion since 2012.

This paper explores the Roberts Court’s recent shift in approach to the avoidance canon. It posits that there are several factors that together have prompted the Roberts Court to continue to rewrite—rather than simply invalidate—statutes whose most natural reading poses serious constitutional problems, but to do so without invoking the avoidance canon. First, the Court may be reluctant to simply invalidate statutes on constitutional grounds because it recognizes that this is an era of extreme political polarization and institutional gridlock. That is, the Court may be going out of its way to uphold statutes that it might otherwise have declared invalid—because it knows that, as a practical matter, Congress is unlikely to muster the political cohesion necessary to fix the constitutional infirmity and reenact the statute. Second, the Court may be reacting to the criticism and negative commentary it has received for its prominent use of the avoidance canon in earlier terms. That is, we may be seeing something of an avoidance, in which the Court ratchets down its use of the canon following periods of high, controversial use and criticism, and ratchets it up again after a period of quiet and relative disuse.

October 21, 2016

Barrett Gives U.S. Supreme Court Review and Preview Lectures

Professor John Q. Barrett recently gave two continuing legal education lectures that reviewed U.S. Supreme Court decisions and developments from last Term and previewed possible developments in the newly-started Term.  On October 13th, he lectured at The New York State Judicial Institute in White Plains, New York, for video broadcast to Judges and court personnel across New York State.


Photo taken by a New York State Supreme Court Justice,

watching in his King’s County chambers

On October 19th, he lectured at the Federal Bar Association’s EDNY Chapter, at the U.S. Courthouse in Central Islip, New York.

October 20, 2016

St. John’s Intellectual Property Law Center Hosts Works-in-Progress Workshop

On Friday October 14th, the St. John’s Intellectual Property Law Center hosted a full-day workshop at which scholars presented early- and mid-stage works-in-progress. The scholars included Professor Eva Subotnik, Professor Brian L. Frye of the University of Kentucky College of Law, Professor Irina D. Manta of the Maurice A. Deane School of Law at Hofstra University,  Brad A. Greenberg, Counsel for Policy & International Affairs at the U.S. Copyright Office and Visiting Fellow, Information Society Project at Yale Law School, and Zvi S. Rosen, Visiting Scholar, George Washington University Law School and former Abraham L. Kaminstein Scholar in Residence at the U.S. Copyright Office.

October 19, 2016

Professor Levine’s Article Quoted in Stanford Law School Study

A recent report from Stanford Law School, Improving Criminal Investigations of Police Shootings, discusses and adopts policy suggestions from Kate Levine’s article, Who levineShouldn’t Prosecute the Police, which was published in the Iowa Law Review in May 2016.

In particular, the report quotes from Kate’s article suggesting that local DAs should not be in charge of prosecuting law enforcement because a “structural conflict of interest” exists due to the close working relationship between the DAs and local police.

October 7, 2016

Professor Barrett Lectures in Nuremberg, on Nuremberg

On September 30, Professor John Q. Barrett delivered a principal lecture, “Finding Nuremberg and Its Legacies,” at the 10th annual International Humanitarian Law Dialogs. The Dialogs were held this year in Nuremberg, Germany, in conjunction with the 70th anniversary of the September 30 and October 1, 1946, International Military Tribunal judgments on Nazi crimes and criminals.


John Barrett

For video of Professor Barrett’s lecture, click here. It will be published next year by the American Society of International Law, which publishes the IHL Dialogs Proceedings book each year (click here for information).

Professor Barrett is biographer of U.S. Supreme Court Justice Robert H. Jackson, U.S. chief prosecutor at and principal architect of the 1945-1946 Nuremberg trial, and writes The Jackson List, which reaches well over 100,000 readers around the world.

October 7, 2016

Greenberg Presents paper at AALS Conference

Professor Elayne E. Greenberg presented her most recent scholarship, ” . . . Because ‘yes’ actually means ‘no’: A Personalized Prescriptive to Reactualize Informed Consent in  imageDispute Resolution” at the 10th annual AALS Works-in-Progress Conference at Marquette Law School on September 25, 2016. This paper addresses how lawyers and dispute resolution professionals may work with clients to achieve the client’s meaningful informed consent to participate in dispute resolution procedures.

October 7, 2016

Professor Greenberg’s Article Accepted for Publication in the Ohio State Dispute Resolution Journal

Professor of Legal Practice Elayne E. Greenberg’s article, “Bridging Our Justice Gap With Empathic Processes that Change Hearts, Expand Minds about Implicit Discrimination” has been accepted for publication in the spring issue of the Ohio State Dispute Resolution Journal.


Here is the abstract:

Accusers and those accused of implicit discrimination in our courts too often hear the refrain, “Justice doesn’t apply to you.”  This justice gap is causing increasing numbers of offenders and victims of implicit discrimination to question the application and
legitimacy of our anti-discrimination laws as it has been applied to them. This paper responds to the urgency of this problem and presents a court innovation proposal to bridge our judge gap by introducing empathic processes into discrimination adjudication that changes hearts and expand minds about implicit discrimination. This court innovation design has two purposes. First, the inclusion of empathic processes provide
litigants with an opportunity to constructively and realistically address their implicit bias claims. Second, the integration of empathic processes will help humanize and de-bias the adjudication process in a way that bridges the justice gap between litigants’ court experience and their expectation of court fairness.

October 6, 2016

Professor Montana’s Article Accepted for Publication in the Capital University Law Review

Professor Patricia Montana’s article, Bridging the Reading Gap in the Law SchoolClassroom,has been accepted for publication in the Capital University Law Review.


Patricia Montana

The article explores the gap between entering law students’ reading skills and law school expectations. It specifically examines students’ undergraduate experience and the influence of technology. It proposes ways that law professors can help close the gap, including by using more guided reading exercises that show students how expert legal readers read.

September 29, 2016

Professor DiLorenzo’s Article Accepted for Publication in the Review of Banking & Financial Law

Professor Vincent Di Lorenzo’s article, “Corporate Wrongdoing: Interactions of Legal Mandates and Corporate Culture”, will be published in the fall 2016 issue of the Review of Banking & Financial Law.  The Review is prepared under the auspices of the Graduate Program in Banking and Financial Law of Boston University School of Law. The following is an abstract of the article:  Vince Di Lorenzo

In recent years enforcement officials have imposed billions of dollars in sanctions on all major U.S. financial institutions and many major financial institutions abroad. Similar sanctions have been imposed on nonfinancial institutions. The sanctions are the result of findings of recurrent violations of law as well as recidivism. Why have existing regulatory standards and enforcement policies led to repeated violations of law? Will the recent billion dollar sanctions deter future wrongdoing? This article explores these issues by examining the philosophy motivating regulatory policy and action in the U.S. and U.K. Financial regulators provide a case study. This article explores the interaction of two institutions that influence corporate actors: government and corporate culture. That interaction is examined through the lens of behavioral decision and complexity theory. The conclusions drawn are that regulators in the U.S. continue to be blind to cognitive influences on corporate behavior. By contrast, regulators in the U.K., have begun to recognize cognitive influences. Enforcement policy in the U.S. has similarly ignored the multiple influences on corporate behavior that interact and lead to nonlinear outcomes. The change, if any, in U.S. enforcement strategy is a greater emphasis on large penalties to deter future misconduct. This continues to reflect a linear, reductionist view of corporate behavior. In contrast, regulatory authorities in the U.K. are rethinking their enforcement strategy based, in part, on recognition of multiple influences on corporate decision making. In the U.S. this regulatory blindness seems likely to lead recurring issues of noncompliance.

September 28, 2016

Recent Lectures by Professor Barrett in Poland, Germany, Pennsylvania, Colorado & New York

Professor John Q. Barrett recently participated in the following:


John Barrett

· On July 16, he met students in Creighton University’s summer law school program, From Nuremberg to The Hague,” in Krakow, Poland, and guided their visit to the Auschwitz-Birkenau memorial and museum.

· On July 18 & 19, he led discussions and lectured those students during classes in Nuremberg, Germany, and guided their visit to the former Nazi Party Rally Grounds there.

· On July 20, he gave a public lecture, “Obama, the Supreme Court and the Presidential Election,” at the Deutsch-Amerikanisches Institut Nürnberg.

· On September 7, he gave a lecture at the Philadelphia Bar Association, hosted by its Federal Courts Committee. The topic was U.S. Supreme Court Justice Robert H. Jackson’s 1947 hiring of Temple Law School student James M. Marsh to be Jackson’s law clerk. This is the subject of a chapter that Professor Barrett wrote in the recent book, OF COURTIERS AND KINGS: MORE STORIES OF SUPREME COURT LAW CLERKS AND THEIR JUSTICES (Todd C. Peppers & Clare Cushman, eds., University of Virginia Press, Dec. 2015) (click here for the chapter abstract).

· On September 12, he gave the plenary keynote lecture, “Justice Jackson and the Nuremberg Trial: Rule of Law Lessons in this 70th Anniversary Year,” at the Colorado Judicial Conference, held in Vail, Colorado.

· On September 16, he was the Constitution Day speaker, on the topic of Presidents and the Constitution, at the Franklin D. Roosevelt Presidential Library & Museum in Hyde Park, New York. This program included discussion of the new book, THE PRESIDENTS AND THE CONSTITUTION:  A LIVING HISTORY (Ken Gormley, ed., New York University Press, 2016), in which Professor Barrett wrote the chapter on President Hoover.

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