Archive for March, 2016

March 31, 2016

Krishnakumar’s Article to be Published by University of Chicago Law Review

Professor Anita Krishnakumar’s article, Reconsidering Substantive Canons, was accepted foranita publication by The University of Chicago Law Review.  Here is the abstract:

This Article provides the first empirical study of the Roberts Court’s use of substantive canons in statutory interpretation cases.  Based on data from 296 cases, the Article argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court.  Substantive canons—e.g., the rule of lenity, the avoidance canon, the presumption against extraterritorial application of domestic laws—have long been criticized as undemocratic judge-made rules that defeat congressional intent, enable interpreters to massage different meanings out of the same text, and make statutory interpretation unpredictable.  Scholars have bemoaned the amount of work that substantive canons perform in statutory interpretation cases and several have charged that textualist judges in particular overuse such canons.  But virtually all of these critiques have occurred in the absence of empirical evidence about how judges invoke substantive canons in practice.

This Article reconsiders the substantive canons in light of new data collected from the Roberts Court.  The data show that, contrary to the conventional wisdom, substantive canons are infrequently invoked on the modern Court—and even when invoked, they rarely play an outcome-determinative role in the Court’s statutory constructions.  Perhaps most surprisingly, textualist Justices—including Justice Scalia—rarely invoke substantive canons in the opinions they author, and do so less often than most of their purposivist counterparts.  Moreover, contrary to the conventional view that substantive canons empower judges to read their personal policy preferences into statutes, the Court’s conservative Justices have employed substantive canons to support liberal case outcomes as often, or nearly as often, as they have employed such canons to support conservative outcomes. Further, doctrinal analysis shows that the Roberts Court repeatedly has used substantive canons to honor, rather than frustrate, congressional intent.

The Article also challenge scholars’ gloomy warnings that Justices in the modern, textualism-influenced era have replaced legislative history with substantive canons as the go-to resource for deciphering ambiguous statutory text.  Rather, the data from the Roberts Court show that most of the Justices referenced legislative history at higher rates than they referenced substantive canons.  Moreover, the Court’s own precedents—rather than substantive canons or legislative history—seem to be the unsung gap-filling mechanisms that the Justices turn to when confronted with unclear statutory text.  After reporting the data, the Article discusses the implications of its findings for current debates in statutory interpretation, arguing that statutory interpretation theory needs to pay less attention to substantive canons and more attention to how the Court employs precedents when construing statutes.

March 28, 2016

Sovern Quoted in Bloomberg News and Law360

Jeff Sovern

Jeff Sovern

Professor Jeff Sovern was quoted by Bloomberg News in an article titled Ted Frank: Lightning Rod for Class Settlement Storms.  According to the article:

Objectors bring advocacy into an inherently non-adversarial setting, Jeff Sovern, a professor at St. John’s University School of Law, in Jamaica, N.Y., told Bloomberg BNA.

“When parties settle, both sides have a stake in making arguments for approval of the settlement, which means that unless a class member or ‘watchdog’ criticizes a class action settlement, the court may not hear the arguments against it, and the adversary system may not function as it is normally does,” Sovern said in an e-mail.

Sovern was also quoted in a Law360 article, CFPB Pushes Bounds On Using Enforcement As Guidance.  That article stated:

There is precedent for agencies using enforcement actions to help define what a statute means.

The FTC, for example, only formalized its guidance for what constituted unfair practices under its UDAP authority in 1980, decades after it was granted the authority to police firms for such actions.

Doing so gave the FTC flexibility to find unfair practices and get a more useful vision of how to prevent them, said Jeff Sovern, a professor at St. John’s University School of Law. And the CFPB is doing something similar, he said.

“When dealing with a relatively new legal standard, like the bureau’s powers to curb abusive acts, it helps to let the law develop for a while before freezing it in a rule like a fly in amber. That way, lawmakers can see how best to interpret the law,” Sovern said.

March 14, 2016

DeGirolami’s Chapter Published in Volume on Religion and Equality

Professor Marc DeGirolami has published a chapter in The Social Equality of Religion or Marc DeGirolamiBelief, edited by Alan Carling and released by Palgrave Macmillan later this month. DeGirolami’s chapter is titled, “The Bloating of the Constitution: Equality and the U.S. Establishment Clause.” Here are the first few lines:

The US Establishment Clause is in disorder. There are currently at least six different approaches to interpreting the ‘establishment’ component of the First Amendment injunction that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” (US Constitution, Amendment 1). Tests of church-state separation, non-coercion, secularity, historical practice, non-endorsement and neutrality all have been used by the Supreme Court at one time or another across a broad panoply of cases. Sometimes two or more of these tests have been squeezed together within a single case, with implied reassurances that the result does not really depend upon the test anyway. At levels below the Supreme Court, this sort of doctrinal bricolage is often only prudent self-protective practice by judges compelled by the Court’s opacity to hedge their bets.

I have argued in other work that these doctrinal confusions are in part the result of the Court’s propensity to elevate a single value to master status in evaluating Establishment Clause controversies (DeGirolami 2013). Dependence on equality or neutrality or separationism as the preeminent constitutional touchstone in one case is felt by the Court to be inadequate or incomplete in a second or third; additional tests are thus cobbled together to accommodate what are perceived in subsequent cases to be distinctive circumstances. Single-value theories of the Establishment Clause misconstrue the conflicts at stake by leveling them – compressing them so as to be capable of processing through the filter of the selected value. Call this phenomenon constitutional flattening. One result of constitutional flattening is the multiplication of Establishment Clause theories to remedy the practical deficiencies in any one of them as they are applied case to case.

This Chapter explores a different side effect of monistic approaches to the Establishment Clause: constitutional bloating – the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability and indeterminacy of meaning. Merely by recurring to or invoking the selected value – always one with vague but deep rhetorical appeal – courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.

The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons: first, equality is the overriding legal value of our age – the defining constitutional issue of our time. The rhetorical power of equality is devastating, eliciting in its most ardent adherents something approaching militant zeal. As Steven Smith has put it, “equality is a juggernaut that overwhelms pundits, politicians, and professors, and threatens to flatten individuals or institutions that dare stand up against it” (Smith 2014). Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent, and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of ‘concern’ or ‘respect’ for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.

March 14, 2016

Salomone on the Rise of Global English

Professor Rosemary Salomone has posted her essay, The Rise of Global English, Challenges for


Rosemary Salomone

English-Medium Instruction and Language Rights. Here is the abstract:

This essay examines the spread of English as the dominant lingua franca world- wide, its educational impact on language rights, and the underlying tension between globalization and national identity. Focused on Western Europe, but with broader implications, it draws on overlapping controversies in May 2013 in France and Italy over the use of English as the medium of university instruction. It uses the public debates surrounding these events to critically explore the legal, cultural and pedagogical issues endemic to English medium instruction, but also to address deeper tensions between globalization and linguistic diversity within Europe. In doing so, it further considers the implications of global English for the rights of linguistic minority children and for European policies promoting multilingualism or “mother tongue plus two” in the interests of European integration and job mobility. Though recognizing the utility of English as a common vehicle for global communication, the paper concludes that the “rise of global English” is not a zero-sum game, but rather demands measured strategies that reasonably balance the competing interests at stake and maintain a sense of proportionality.

March 10, 2016

Sovern Op-Ed in USAToday

USAToday ran Professor Jeff Sovern’s op-ed today, The War on Consumer Protection. TheSovern Two[2] piece concludes:

Voters should ask candidates their positions on consumer protection. Presidential candidate Ted Cruz, who has called for elimination of the CFPB, should have to say whether consumers who have obtained redress because of the CFPB ought to return money to their swindlers — and who will stop the swindlers next time. And candidates should make clear whether they believe we should return to the way things were, with the laws that led to the Great Recession, or whether they support enforcement of consumer protection laws.

March 9, 2016

DeGirolami on Wolterstorff’s View of Punishment in “The Mighty and the Almighty”

Professor Marc DeGirolami has posted this little paper (forthcoming in a symposium volume of the Journal of Marc DeGirolamiAnalytic Theology) on Professor Nicholas Wolterstorff’s recent book, The Mighty and the Almighty: An Essay in Political Theology. Here is the abstract:

This short comment explores Nicholas Wolterstorff’s claims about expressivism and retributivism as justifications for the state’s punishment of criminal offenders in his book, “The Mighty and the Almighty.” It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.

March 7, 2016

Sheff Presents at Cardozo AELJ Symposium

Jeremy Sheff

Jeremy Sheff

On February 26, Professor Jeremy Sheff was a panelist at the Cardozo Arts and Entertainment Law Journal Symposium: “New Impressions on Advertising Law”.  Professor Sheff participated in a panel on Native Advertising, where his comments addressed the empirical and normative foundations of FTC policy requiring disclosures of sponsored content in digital media.

March 4, 2016

Sheff Presents at WIPIP Colloquium

Jeremy Sheff

Jeremy Sheff

On February 20, Professor Jeremy Sheff presented an excerpt of his forthcoming book project, “Valuing Progress,” at the 2016 Works in Progress in Intellectual Property (WIPIP) Colloquium at the University of Washington School of Law.  The presentation, entitled “Progress for Future Persons,” considered the problem of setting innovation and creativity policy in a way that takes into account the interests of people who have not yet come into existence—and whose very existence may in fact be influenced by the policies we adopt today.  Professor Sheff blogged about this presentation, and slides of the presentation are also available.

March 3, 2016

Lazaro presents on the DOL Fiduciary Rule Proposal at NYCLA Committee Meeting

Christine Lazaro

Christine Lazaro

Professor Christine Lazaro gave a presentation about the Department of Labor’s fiduciary duty rule proposal to the Securities and Exchanges Committee of New York County Lawyers’ Association on March 1st.  The rule proposal, which is expected to have a major impact on the financial services industry, is under review by the Office of Management and Budget and is expected to be released soon.

March 1, 2016

Cunningham Testifies Before New York City Council

Larry Cunningham

Larry Cunningham

Professor Larry Cunningham, the Associate Academic Dean, testified before the Committee on Courts and Legal Services of the New York City Council about the right to speedy trial in New York City Criminal Court. His testimony follows a letter-to-the-editor he wrote on the subject to the New York Law Journal, where he argued that systemic reform is needed to the Criminal Procedure Law in order to reduce delays in Criminal Court, which primarily hears misdemeanors. Professor Cunningham testified at the invitation of the Honorable Rory Lancman, the chair of the committee. At St. John’s, Cunningham teaches Criminal Procedure and other courses.

Cunningham Testimony

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