Archive for September, 2013

September 30, 2013

Subotnik to Present on Copyright in the 21st Century

Professor Eva Subotnik will be presenting a talk, Toward a 21st Century Copyright Act, as part of the Pennsylvania Bar Institute’s program, “The Essentials of Copyright Law,” a 4-credit CLE program in Philadelphia this Thursday, October 3rd.  Professor Subotnik, who will join a panel of expert practitioners from the New York and Pennsylvania Intellectual Property bars, will address some of the pressing challenges for copyright law in the digital age as well as opportunities for meeting those challenges in a productive way.  In part, she will comment on certain proposals for revision of the law that were discussed by Maria A. Pallante, U.S. Register of Copyrights, in a speech this past spring entitled The Next Great Copyright Act, which was published in the Columbia Journal of Law & the Arts and is available here.  Information about the program can be found at the PBI website here.




September 29, 2013

Crimm Chapter in Cambridge University Press Book

Professor Nina Crimm has written a book chapter,  Dilemmas in Regulating Electoral Speech of Nonprofit Organizations (with Laurence H. Winer), in NOT-FOR-PROFIT LAW: THEORETICAL AND COMPARATIVE PERSPECTIVES (Matthew Harding, Ann O’Connell and Miranda Stewart, eds., Cambridge University Press, forthcoming 2014). Here is the abstract:

Western liberal democracies, including the United States (U.S.), Australia, and others, are predicated on the rights of individual citizens not only to vote but also to participate fully in the public political arena by expressing and hearing the widest possible variety of thoughts and ideas involving the most diverse sources.  The First Amendment of the U.S. Constitution explicitly enshrines fundamental free speech and press rights – including most vitally electoral speech- of all speakers, interpreted recently by the U.S. Supreme Court in its controversial 5-4 decision in Citizens United v. FEC to include all corporations.’ Lacking an analogous constitutional provision, Australia’s comparable protection for individuals and entities to engage in political expression is judicially implied, but now firmly entrenched in the country’s constitutional jurisprudence.

Despite such fundamental protections for electoral speech grounded in both law and constitutive policy considerations, countervailing interests and considerations- political agendas, the potential for actual or perceived abuses, taxpayer subsidy objections, and the like – have led to the regulation of certain types of partisan, political speech. At least in the U.S., such regulatory restrictions, in both federal tax laws and federal campaign finance statutes, as well as regulatory interpretations by the Internal Revenue Service and the Federal Election Commission, continue to be a hot-bed of debate and litigation in which constitutional arguments about the First Amendment’s free speech provisions predominate.

The disharmony within the U.S. legal regimes is prominently manifesting itself this year as the contentious U.S. presidential and congressional races are in full swing.  Federal tax law excludes a broad group of secular and religious nonprofit entities(§ 501(c)(3)s) entirely from the public political square, while it permits other tax-exempt nonprofits (§§ 501(c)(4)s, 50l(c)(5)s, 50l(c)(6)s, and 527s) to participate. For those tax-exempt entities that can and do participate, some intentionally and aggressively maneuver to avoid disclosing their underlying sources of financial support. This is abetted by lax federal tax and campaign finance regulatory schemes. Such opacity risks undermining the values of a self-governing liberal democracy.

In accord with Australia’s project on defining, taxing, and regulating the not-for-profit sector, we examine the question of the appropriate role of nonprofits in the public political arena, focusing specifically on speech in support of or opposition to political parties or candidates. What political communication is consistent with the functions of charities and other nonprofits and with tax subsidies for them, and what regulation of political communication is appropriate given expansive constitutional protection for such speech?  To gain insights from the U.S experience, we first describe the main relevant categories of tax-exempt entities established under the Internal Revenue Code (“IRC”) and the regulatory structure of each compared to the current Australian situation. To further lay a foundation, we also explain the applicable disclosure requirements under both the IRC and the Federal Election Campaign Act.  We then consider the Aid/Watch case in Australia and the potential opening it provides for electoral speech by charities.

With this background, we are in a position to consider insights from the U.S. experience as to: (1) the value of entity participation in the political process; (2) the relevance of tax subsidies to the regulation of nonprofits’ electoral speech; (3) the inappropriateness of trying to regulate the content of partisan, political campaign speech based on how explicitly it refers to specific candidates; (4) the “corrupting” influence of organizational wealth; (5) the wisdom of avoiding ambiguous and inconsistent regulatory guidance; (6) the importance of avoiding inconsistent regulation by multiple agencies; and (7) the importance of enforcing effective, timely, and public disclosure requirements.  Finally, given the constitutional protections for the free exercise of religion in both the U.S. and Australia, we note the particular difficulty any regulatory regime might encounter with respect to restricting electoral speech by religious organizations, especially houses of worship.


September 27, 2013

Sovern Paper, Cost-Benefit Analysis and Consumer Protection, on SSRN

Professor Jeff Sovern has posted his latest paper on SSRN, Can Cost-Benefit Analysis Help Consumer Protection Laws? Or at Least Benefit Analysis?, forthcoming in the University of California-Irvine Law ReviewHere’s the abstract:

Cost-benefit analysis is often troubling to consumer advocates. But this article argues that in some circumstances it may help consumers. The article gives several examples of supposed consumer protections that have protected consumers poorly, if at all. It also argues that before adopting consumer protections, lawmakers should first attempt to determine whether the protections will work. The article suggests that because lawmakers are unlikely to adopt multiple solutions to the same problem, one cost of ineffective consumer protections is a kind of opportunity cost, in that ineffective consumer protections might appear to make unnecessary adoption of effective ones. Ironically, such an opportunity cost is unlikely to be taken account of in cost-benefit analysis. Among the protections that especially risk failing to benefit consumers are laws that require consumers to perform certain tasks, such as disclosure laws that presuppose consumers will pay attention to and act on the disclosures; if consumers instead generally ignore the disclosures, the consumer protection will be largely illusory. Accordingly, before adopting measures that depend on consumers to do something, lawmakers should try to verify that consumers will in fact undertake those actions. The article also makes some suggestions for ascertaining whether consumer protections will work—i.e., benefit consumers–and concludes with a brief critique of the proposed Independent Agency Regulatory Analysis Act.

jeff sovern

September 26, 2013

Movsesian Essay Appears in New Anthology on Public Religion

This month, Ashgate releases Volume III of Religion in the Public Space, part of its Library of Essays on Law and Religion series. The volume is edited by Silvio Ferrari (Milan) and Rinaldo Cristofori (Milan), and contains Professor Mark L. Movsesian’s essay, Crosses and Culture, on religious displays in the US and Europe. Professor Movsesian is in good company; the book also includes essays by, among others, Jürgen Habermas, Charles Taylor, and Mary Ann Glendon.

September 25, 2013

Sovern Quoted on the Fair Credit Reporting Act

Professor Jeff Sovern was quoted in a story on, CFPB’s Credit Report Warning Puts Retailers On Notice.  The article explained: 

Courts already have been interpreting the Fair Credit Reporting Act to mean that all data furnishers regardless of their primary business are required to conduct a “reasonable investigation” when an item on a report is disputed, said Jeff Sovern, a professor at St. John’s University School of Law.

Although the extent of the CFPB’s authority over nonfinancial firms may come under scrutiny, “given how reasonable its interpretation [of the FCRA] seems, courts should arrive at the same conclusion anyway,” Sovern said.


September 24, 2013

DeGirolami’s Tragedy of Religious Freedom at the Harvard Club, in Conversation, and in Review

Tomorrow evening, September 25, Professor Marc DeGirolami will lead a conversation about his new bookThe Tragedy of Religious Freedom, and current issues at the intersection of Law and Religion from 8 – 9:30 p.m. at the Harvard Club of New York City.  The conversation will be facilitated by Professor Mark L. Movsesian, Director of the Center for Law and Religion, with an introduction by Dean Michael A. Simons, .

Richard Reinsch of the Law and Liberty blog (a project of The Liberty Fund) recently conducted this interview with Professor DeGirolami about his bookThere is also a review of the book in Law and Politics Book Review by political scientist Jesse Merriam.  Noting that DeGirolami’s analysis is written with “a clarity, elegance, and intellectual depth surpassing almost every work in this field”, Merriam concludes:

TRAGEDY OF RELIGIOUS FREEDOM is an excellent starting point for a discussion of how to arbitrate the principled conflict underlying church-state adjudication, and in starting this discussion DeGirolami does an exquisite job of defending his approach. For these reasons, it is not only an important but also an immensely enjoyable book to read.

For more information about tomorrow’s event, please see here.  I hope to see you there!


September 17, 2013

Jackson List Essay, “Farewell to the Chief Justice (1948)”, in Columbia Law Mag

Professor John Q. Barrett, biographer of U.S. Supreme Court Justice and Nuremberg chief prosecutor Robert H. Jackson (1892-1954) and author of the “Jackson List” email series, wrote “Farewell to the Chief Justice (1948)”, which was reposted in Columbia Law School‘s online magazine.  The essay, which is about former Columbia law students and Supreme Court justices Charles Evans Hughes and Benjamin N. Cardozo, originally appeared as a Jackson List posting.

For the Jackson List archive, Google “Jackson List” or click here.  

John Q. Barrett
John Q. Barrett
September 17, 2013

Nelson Constitution Day Reuters Essay

Professor Janai Nelson authored A call for a right-to-vote amendment on Constitution Day for Reuters to mark Constitution Day.  Here is an excerpt:

A right-to-vote amendment would open the door to voting access for excluded groups, such as the homeless, citizens convicted of a felony, and residents of the District of Columbia, among others. In addition, a constitutional amendment process centered on the right to vote would build civic awareness,  inspiring a new vision of participatory democracy.

Without an affirmative right to vote, we are left vulnerable to the whims of partisan politics and inept election administrators to determine when, how and under what conditions we can vote.

So, as we honor our Constitution’s birthday, let’s not only blow out the candles — let’s breathe new life into it with a positive, explicit and unfettered right to vote.

janai blue

September 17, 2013

DeGirolami Appears on Interfaith Voices’s Series on God and Government

Professor Marc O. DeGirolami recently appeared in this radio program, Interfaith Voices, which is broadcast on some National Public Radio affiliates.  The program is part of a series entitled, “God and Government” and discusses “the blend of religion and state here in North America.” Professor DeGirolami is the Associate Director of the Center for Law and Religion and the co-editor of the popular legal blog, Mirror of Justice.

Marc DeGirolami

Marc DeGirolami

September 13, 2013

Chronicle of Higher Ed Reprints Salomone Essay

Recently we reported that Professor Rosemary Salmone’s essay, Should the ‘Veil’ Be Banned in Higher Education?, appeared in the University World News Global Edition.  Now the Chronicle of Higher Education has reprinted the piece under the title Should France Ban Islamic Veils in Public Universities?. 

Rosemary Salomone

Rosemary Salomone

%d bloggers like this: