Archive for November, 2016

November 30, 2016

Subotnik Comments at and Workshops Paper at Two NYU Events


On Tuesday November 29th, Professor Eva Subotnik joined a roundtable discussion at NYU School of Law of her co-authored project, The Art and Business of Photography in the Digital Age, which was presented by her co-author Professor Jessica Silbey.


Eva Subotnik

In addition, on Friday January 13, 2017, Professor Subotnik will be serving as a commentator at NYU’s Seventh Annual Tri-State Region IP Workshop. Specifically, she will be commenting on a paper on copyright law, fair use, and art written by Professor Amy Adler.

A description of Professor Subotnik’s project on The Art and Business of Photography in the Digital Age is below:

The Art and Business of Photography in the Digital Age

Using both qualitative and quantitative empirical methods, we are investigating the business and art of photography as it has evolved with digital technology. The goals of the project are to learn how earning a living as a photographer (or through photography) and the practice of photography have changed in the age of internet distribution and e-commerce, quickly evolving digital photographic equipment, and the accompanying changes to culture, aesthetics and the market. In particular, we are interested in the roles intellectual property law plays in the enduring or changing aspects of photography as a professional and artistic endeavor.

This workshop will describe the qualitative methods for collecting data (long-form interviews) as well as for coding and analyzing the interview data. We are only about half-way through the interviews, so our analysis of the data will be preliminary. We plan a large-number survey to test the relevant variations within the interviews and will describe the initial stage of the survey research as well. We will present initial findings of patterns and distinctions within the data concerning business methods for photographers, their assertion of copyright, and changing aesthetic practices. We will also discuss initial difficulties we had designing the qualitative study due to IRB restrictions and inter-institutional collaborations. Our aim is to share our process, our reasons for choosing these research methods, and our early-stage substantive findings on the relationship between creativity, market practices, intellectual property and digital technology in the field of photography.

November 29, 2016

Vice Dean Cunningham Spends Month in Cambodia on Fulbright

Vice Dean Larry Cunningham spent the month of October in Cambodia, as a participant in the Fulbright Specialist Program, which sends U.S. faculty and professionals to serve as expert consultants on curriculum, faculty development, institutional planning, and related subjects at academic institutions abroad.


Larry Cunningham

You can read more about Dean Cunningham’s experiences here.

November 22, 2016

Subotnik Presents Paper at University of Kentucky College of Law

On Friday November 18th, Professor Eva Subotnik presented her paper, “Free as the Heir?: Copyright Successors and Stewardship,” as part of the University of Kentucky College of Law’s faculty workshop series in Lexington, KY. Here is the abstract:


Eva Subotnik

To what extent should copyright law be concerned with facilitating artistic legacy? While the heavy machinery of the copyright regime may have been established to promote the creativity of authors, the reality is that works of authorship will be tended to and exploited by others. In the case of the most valuable works, this may happen during the author’s life. But in all cases, this will happen long after the author’s death but before the works enter the public domain. This article focuses on the role of an author’s post-death successors in shaping the legacy of the author’s body of work. To that end, it considers the different functions these successors play, and the competing expectations about what they should accomplish. By way of comparison it considers similar functions performed by successors to tangible property assets. In the end, it argues that we should re-conceptualize copyright successors as stewards of these peculiar interests.

November 21, 2016

Krishnakumar Presents Paper at Yale Law School Seminar

Professor Anita S. Krishnakumar presented her paper titled, “Veiled Avoidance,” at a seminar on “Theories of Statutory Interpretation” at Yale Law School on Tuesday, November 8.  The seminar is run by Professor William N. Eskridge, Jr. and brings scholars writing in the field of statutory interpretation to campus to discuss their research with students in a colloquium format.  cropped-webpage-i

An abstract of Professor Krishnakumar’s paper is below:


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 (and 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 retreat period, in which the Court ratchets down its use of the canon following periods of high, controversial use and criticism.  Third, certain internal institutional factors may drive the Court to be cautious in its use of avoidance, except when certain unusual circumstances converge.

November 16, 2016

Levine’s Article Selected for Fred C. Zacharias Memorial Prize

Professor Kate Levine‘s article, Who Shouldn’t Prosecute the Police, 101 Iowa L. Rev. 1447 (2016), has been selected as one of the co-winners of the seventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  levine

The other co-winner is
Leslie C. Levin, for Lawyers Going Bare and Clients Going Blind, 68 Fla. L. Rev. (forthcoming 2016).

Kate will be presented with the award at the AALS Annual Meeting in San Francisco in January 2017.

November 15, 2016

Subotnik Presents at MSU IP Seminar

On Tuesday November 1st, Professor Eva Subotnik presented her work on postmortem copyrights at the MSU IP Capstone Seminar at Michigan State University College of Law.


Eva Subotnik

Her presentation, facilitated by remote video link technology, discussed issues that surround dead-hand control by authors and the role played by copyright successors. The seminar series, described here, includes MSU’s top IP students and interested faculty, and it hosts leading young scholars to present papers or works-in-progress. Links to Professor Subotnik’s work can be found here.

November 14, 2016

Greenberg Presents on Bankruptcy Mediation and Moderates Panel at Interfaith Conference

On November 2, 2016, Professor Elayne Greenberg moderated the keynote panel at the Third Annual Interfaith Conference on Ethno and Religious Conflict Resolution and Peacebuilding sponsored by the Interfaith Center for Ethno-Religious Mediation and the Interchurch Center. The keynote speakers, Pastor Don Mackenzie, Rabbi Ted Falcon and Imam Jamal Rahman known as the Interfaith Amigos, discussed how the shared values in Judaism, Christianity and Islam can form bonds to unite us.  image

On November 11, 2016, Professor Greenberg presented on Bankruptcy Mediation sponsored by the Commercial Law League of America’s Fall Conference in Manhattan. Her co-panelistics included Judge Alan Trust, a Bankruptcy Judge in the Eastern District of New and an adjunct professor in St. John’s Bankruptcy LL.M program and Albert Togut, partner of Togut, Segal & Segal and an esteemed St. John’s alum.

November 14, 2016

Borgen and McGuinness Speak at International Law Weekend about Recognition and Non-recognition Under International Law

On Friday, October 28th, Professor Christopher J. Borgen and Professor Margaret E. McGuinness, the co-directors of St. John’s Center for International and Comparative Law, were panelists at International Law Weekend, the annual conference organized by the American Branch of the International Law Association.

mcguinness                               borgen

They both spoke on the panel “The Recognition and Non-recognition of States and Governments: Current Issues in U.S. Practice.” For over five years the International Law Association’s Committee on Recognition and Non-Recognition has studied how states do or do not recognize other regimes as states and governments. This panel brought together members from the ILA Committee to discuss the findings of their reports. Professor Borgen is the Co-Rapporteur of the Committee and Professor McGuinness is a member of the Committee. Borgen’s presentation analyzed U.S. diplomatic practice in the recognition and non-recognition of regimes that want to be considered states, including entities like ISIS (that may be trying to become a state) as well as separatist regimes such as South Ossetia in Georgia. McGuinness’s presentation considered the effects of recognition and non-recognition of states and governments in the U.S. court system, including examples from recent federal litigation.

November 11, 2016

Borgen and McGuinness Convene Opinio Juris Bloggers to Discuss International Law and the Next U.S. President

On October 26th, Professor Christopher J. Borgen and Professor Margaret E. McGuinness, the co-directors of St. John’s Center for International and Comparative Law, convened a group of their colleagues from Opinio Juris, a leading website of debate and discussion about international law, for a conversation about international law and U.S. foreign policy in this Presidential election year.      mcguinnessborgen

Professors Borgen and McGuinness, and their colleague Professor Julian Ku from Hoftsra Law founded Opinio Juris in 2005.

In the last eleven years, the site has expanded from a few dozen visits per day to a current total of over six million visits. The masthead has grown to ten law professors, plus there have been hundreds of guest bloggers. Together, they have written over 9,000 posts on international legal issues. Opinio Juris has also become a resource for information about international law on Twitter, with over 11,000 followers, and also on Facebook, with over 6,000 followers. For their discussion, which took place in the Law School’s Moot Court Room to an audience of over 70 students, faculty, and alums, Professors Borgen and McGuinness were joined by Professor Ku as well as Professor Kristen Boon (Seton Hall Law School) and Professor Deborah Pearlstein (Cardozo School of Law).

Topics included the ongoing conflict in Syria, tensions in the South China Sea, the situation in Ukraine, the status of the United Nations, and the Obama Administration’s record on human rights issues. The roundtable was co-sponsored by the American Branch of the International Law Association and the New York State Bar Association, International Section Committee on Public International Law. It was introduced by St. John’s Law alum and Adjunct Professor, Mark A. Meyer, a member of the law firm Herzfeld & Rubin and Co-Chair of the Public International Law Committee of the NYSBA.

November 8, 2016

Federal Education Department Relies on St. John’s Arbitration Study

The federal Department of Education recently issued new student loan regulations barring the use of pre-dispute arbitration clauses.


Jeff Sovern

In so doing, it relied in part on ‘Whimsy Little Contracts’ with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements, 75 Maryland Law Review 1 (2015), authored by Professor Jeff Sovern, Professor Elayne E. Greenberg, Dean Paul F. Kirgis, and Yuxiang Liu. The Department cited “Whimsy Little Contracts” for the proposition that “consumers commonly lack understanding of the consequences of arbitration agreements.” 81 FR 75926-01, 76028 2016 WL 6408735.  The nearly-300 page document explaining the new regulations cited only three other law review articles.

The article has drawn attention from other quarters as well. On August 3, 65 members of Congress joined in a letter supporting the Consumer Financial Protection Bureau’s proposed arbitration regulation, which quoted a letter from 210 law professors. The first article cited in the law professor letter is “Whimsy Little Contracts.”  The article had previously been discussed by the CFPB in its 2015 Arbitration Report, and has been cited more than twenty times, including by the New Jersey Supreme Court in Morgan v. Sanford Brown Institute, — A.3d –, 225 N.J. 289 (2016).

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