Archive for April, 2012

April 30, 2012

St. John’s Scholarship Influences the Judiciary

It has become fashionable for judges to decry the current state of legal scholarship, complaining that law professors produce almost nothing of value that they can use in deciding cases. One of a series of articles in the New York Times about the state of legal education also takes shots at legal scholarship. Much of it, the article claims, amounts to little more than “intra-academy tiffs that could interest only the combatants” or “highbrow edu-tainment.”  Overall, the number of law review articles cited in judicial opinions has declined in recent years, according to statistics reported in the article.

It is not clear to me what to make of these critiques. Utility to the judiciary is certainly one criterion for evaluating legal scholarship, but it is by no means the only one. Nor does simply toting up the number of judicial citations accurately measure influence. Obvious examples of the limitations of this approach are Ronald Coase’s articles The Nature of the Firm and The Problem of Social Cost. They are among the most influential articles ever written, helping to re-shape our understanding of corporations and laying the ground work for the law and economics movement. Courts have cited them only a handful of times, but because they have changed the way we think about and teach law their influence is palpable in thousands of opinions that never mention them by name and among judges who may not have ever read them.

With that objection noted, let’s take the debate on its own terms and examine the output of the St. John’s faculty. Are we producing practical scholarship that is of immediate use to judges? 

The answer is a resounding yes—we continue to write articles and books that directly influence judicial thinking in a wide range of legal disciplines. Let me offer just a few recent examples. This past February, the Tenth Circuit Court of Appeals looked to Janai Nelson’s 2007 Georgetown Law Review article (White Challengers, Black Majorities: Reconciling Competition in Majority-Minority Districts with the Promise of the Voting Rights Act) to inform its understanding of that statute (you can find the opinion here). A few months earlier, Judge Richard Posner in the Seventh Circuit cited my article in the Stanford Law Review, Fraud and Federalism: Preempting Private State Securities Fraud Causes of Action, in an opinion interpreting the Securities Litigation Uniform Standards Act (SLUSA). Indeed, in another measure of influence the New York Times ignores, the data collected in that article prompted Congress to pass SLUSA in the first place. Just last week, Judge Weinstein in the Eastern District of New York cited Adam Zimmerman’s 2011 University of Pennsylvania article, The Criminal Class Action (co-authored with David Jaros), in approving an SEC settlement in a case with a parallel criminal action. You can find the opinion here.

St. John’s law professors’ influence extends beyond law review articles. Several faculty members devote a large portion of their research time to writing treatises and commentaries that have an immediate and obvious influence among both judges and practitioners. In just the last six months, Vincent Alexander’s CPLR Practice Commentaries and evidence treatise (Evidence in New York State and Federal Courts) have been cited in eleven separate court opinions.  Vincent Di Lorenzo’s book, New York Condominium and Cooperative Law, was quoted last month in a Southern District of New York opinion interpreting the Interstate Land Sales Full Disclosure Act.

Legal research takes many forms. As Dean Michael Simons noted recently at the Dean’s Docket: “Some [St. John’s] faculty members are experts in particular areas of legal practice; others are experts in historical events with obvious relevance to today; others are exploring some of today’s most important public policy questions; and still others are exploring how to make legal education more effective and inclusive.” There is little doubt that practical scholarship about current legal issues is an integral part of that broad array.

Update: In March, a state court in North Carolina cited Nina Crimm’s article An Explanation of the Federal Income Tax Exemption for Charitable Organizations:  A Theory of Risk Compensation, which appeared in the Florida Law Review. You can find the opinion here.

April 30, 2012

Movsesian on Religious Displays in the US and Europe

Professor Mark Movsesian’s latest article has been accepted for publication in the peer-reviewed Oxford Journal of Law and Religion.  The article, Crosses and Culture: State-Sponsored Religious Displays in the US and Europe, compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on state-sponsored religious displays. Although both courts insist that government has a duty of religious “neutrality,” the American court defines neutrality more rigorously that the European court. Mark argues that this difference results from institutional and cultural factors, specifically, the different social models of religion in the US and Europe.

You can find more of Mark’s scholarship here.

April 27, 2012

St. John’s Law and Religion Colloquium

This semester, the Center for Law and Religion (CLR) inaugurated an exciting new course, “Colloquium in Law: Law and Religion.” The seminar, taught jointly by CLR Director Mark L. Movsesian and Assistant Director Marc O. DeGirolami, gave selected St. John’s Law School students an opportunity to study cutting-edge issues in law and religion with some of the most prominent thinkers in the field, including Supreme Court Justice Antonin Scalia.

The seminar was structured as a series of workshops in which speakers presented papers to the students and faculty from St. John’s and other universities. The papers addressed a variety of topics and perspectives. Michael W. McConnell (Stanford Law School) critiqued the Supreme Court’s free-exercise jurisprudence, demonstrating the tensions in the Court’s landmark decision in Employment Division v. Smith. Philip Hamburger (Columbia Law School) discussed the history of freedom of conscience, focusing on medieval thinkers like Aquinas and Bonaventure, and M. Cathleen Kaveny (University of Notre Dame Law School) critiqued a classic contracts case, Watts v. Watts, from the perspective of moral theology. Two papers were comparative. Joseph Weiler (NYU School of Law) addressed the recent European Court of Human Rights decision in the Italian crucifix case, Lautsi v. Italy, and Ayelet Shachar (University of Toronto Faculty of Law) discussed religious family-law arbitration in Canada and the UK.

You can find more information on the colloquium here.

April 27, 2012

Jeremy Sheff on the Law of Luxury Good Knock-Offs

Jeremy Sheff

Associate Professor Jeremy Sheff has a new post on PrawfsBlag (here) analyzing the legal treatment of luxury good knock-offs under the Lanham Act. The legal analysis in these cases turns on a doctrine called “post-sale confusion.”  As Jeremy explains: “Luxury knock-offs do not infringe the luxury house’s trademark because of their effect on the purchaser of the knock-offs, but because of their effect on people who observe that purchaser consuming the product after it has been purchased. Such observers, the theory goes, will see the non-confused purchaser consuming the defendant’s product, but mistake it for the plaintiff’s product due to the similarity of the products’ trademarks or overall designs.”

Jeremy’s question is a simple one–why should we care? “What is the social or moral ill,” Jeremy asks, “that results if I mistakenly believe that a woman walking down Fifth Avenue is carrying an authentic Louis Vuitton purse when in fact she is carrying a cheap imitation?” Jeremy’s answer to that question is in the latest issue of the Minnesota Law Review (the link to the SSRN version of the paper is here).

April 27, 2012

New on the Dean’s Docket

Over at the Dean’s Docket, Michael Simons summarizes Justice Scalia’s visit to St. John’s.

April 26, 2012

Center for Law and Religion Announces Conference on State-Sponsored Religious Displays

The Center for Law and Religion at St. John’s School of Law and the Department of Law at the Libera Università Maria SS. Assunta (LUMSA) have announced an academic conference:

State-Sponsored Religious Displays in the U.S. and Europe

Taking place on Friday, June 22, 2012, the conference will bring together American and European law and religion scholars to discuss state-sponsored religious displays from a variety of perspectives. The conference proceedings will be in English and Italian with simultaneous translation. Selected papers will appear in a forthcoming issue of the Journal of Catholic Legal Studies.

Conference Introduction

  • Silvio Ferrari (University of Milan Department of Law)

Panel 1: Cultural or Religious? Understanding Symbols in Public Places

  • Thomas C. Berg (University of St. Thomas (Minnesota) School of Law)
  • Carlo Cardia (Roma Tre University Faculty of Law)
  • Eduardo Gianfrancesco (LUMSA Department of Law)
  • Francesco Margiotta Broglio (University of Florence Faculty of Political Science)

Panel 2: Lautsi v. Italy and the Margin of Appreciation

  • Monica Lugato (LUMSA Department of Law)
  • Marc O. DeGirolami (St. John’s School of Law)
  • W. Cole Durham, Jr. (Brigham Young University Law School)

Panel 3: State-Sponsored Religious Displays in Comparative Perspective

  • Hon. Diarmuid F. O’Scannlain (U.S. Court of Appeals for the Ninth Circuit)
  • Paolo Cavana (LUMSA Department of Law)
  • Mark L. Movsesian (St. John’s School of Law)
  • Sophie C. van Bijsterveld (Tilburg University School of Humanities)

Conference Conclusion

  • Giuseppe Dalla Torre (LUMSA Department of Law)

LUMSA, Complesso del Giubileo
via di Porta Castello, 44 – Roma

Please register to attend the conference by e-mail to

More Information
Monica Lugato | LUMSA Department of Law
Mark L. Movsesian | St. John’s School of Law

April 26, 2012

Professor Nelson on an African Election

Janai Nelson

Over at Concurring Opinions, Associate Professor Janai Nelson reviews Jarreth Merz’s new documentary, An African Election, which profiles Ghana’s 2008 presidential election. Janai offers her own views on election politics in Ghana (you can find a more extensive treatment here) and the lessons they hold for our own upcoming elections.

April 26, 2012

Professor Baum’s Advice for Budding Child-Welfare Lawyers

Over at the website of the ABA’s Section on Children’s Rights Litigation, Associate Professor of Clinical Legal Education Jennifer Baum offers sound advice to freshly minted lawyers working in the field. You can find the article, entitled Five Mistakes for New Child-Welfare Lawyers to Avoid, here.

April 25, 2012

Jeremy Sheff Raises Questions about Technology’s Intent

Associate Professor Jeremy Sheff raises a host of intriguing intellectual property questions regarding file sharing services. His post, which can be found at PrawfsBlawg, discusses the similarities between a new service offered by cloud storage company Dropbox and the technology that led the federal government to criminally indict the file-sharing service MegaUpload. The gist of Jeremy’s post is that what separates services that engage in impermissible copyright infringement from those that don’t is simply intent and that a system that turns on questions of intent is inherently uncertain.  Here is his bottom line:

“For my part, I look at all this as a lawyer who, in a former life, was sometimes called on to give clients guidance as to whether a course of action they were considering for their business would be likely to generate legal liability. I have to admit, I’d have a hard time giving a client like Dropbox useful advice today. And it strikes me that a legal regime that doesn’t allow a segment of our economic and social lives as fundamental as the information we exchange with one another to be planned with some degree of certainty isn’t doing its job very well.”

April 24, 2012

Kirgis on the Future of Arbitration Issues at the Supreme Court


Professor Paul Kirgis has posted a new essay entitled “The Roberts Court vs. the Regulators: Arbitration’s Next Battleground.” It is the lead article in vol. 10, issue 3 of the Mayhew-Hite Report, the online journal of the Ohio State Journal on Dispute Resolution. Here is a brief excerpt:


Over the past three decades, the Supreme Court has taken a series of steps having the design or effect of restricting access to judicial process. This “disadjudication” project has proceeded along three tracks: 1) with respect to its own docket, the Court has dramatically reduced the number of cases it decides each year; 2) in the criminal area, the Court has cut way back on access to the federal courts through habeas corpus; and 3) in the civil area, the Court has simultaneously erected barriers to litigation by heightening pleading standards and expanded the scope of arbitration to suck more and more claims out of courts at both the federal and state levels.

For the Rehnquist Court, the disadjudication project at times seemed motivated primarily by a desire to clear judicial dockets. The Roberts Court appears to have a more ambitious agenda, particularly when it comes to arbitration. It has almost always sided with the Chamber of Commerce in business cases, and the Chamber wants its members to have control over the processes used to ensure that they comply with the law. The Court has enthusiastically complied. Through a string of decisions, most recently CompuCredit Corp. v. Greenwood, 131 S. Ct. 2874 (2011)(upholding arbitration of claims under Credit Repair Organizations Act) and AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011)(upholding class waiver in arbitration agreement), the Court has encouraged companies to push their consumers and employees into arbitration, placing the enforcement of both federal and state laws in private hands and allowing companies to opt out of class actions entirely in many contexts.

With the states and the lower federal courts unable to limit the scope of pre-dispute arbitration agreements or preserve class actions, the next arbitration battleground will pit the Supreme Court’s conservative majority against federal agencies staffed by Democratic appointees seeking to use regulation to slow the arbitration juggernaut. Two recent agency decisions and a new court ruling upholding a third have placed the agencies squarely in opposition to the Court on the permissible scope of arbitration agreements and the effect of class waivers. These agencies are, in effect, telling the courts to reopen the doors and start hearing cases. The result is a through-the-looking-glass moment in which agencies defend rights to court adjudication against incursions by the Supreme Court.

You can find the full essay here.

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