St. John's University Law Faculty Blog

Professor Lazaro has an Op-Ed on Bloomberg View.

The op-ed was co-authored with Benjamin P. Edwards, soon to be an associate professor at the University of Nevada at Las Vegas’s William S. Boyd School of Law. The op-ed discusses the implications of the Department of Labor’s pending proposal to delay implementation of the Department’s fiduciary rule. The following is an excerpt:

The Office of Management and Budget’s notice explains that the 180-day delay the Labor Department initially proposed would have reduced investor gains by $441 million in the first year and $2.7 billion over a decade. The current proposed 60-day delay will still hurt investors, reducing gains in the first year by $147 million and $890 million over a decade. Those figures understate the stakes because they assume that the rule will go into effect immediately after the delay. Cutting the rule entirely will cost investors billions more.

But another delay serves no purpose, because honest consideration will not change the fiduciary rule. The Labor Department engaged in a long and thoughtful process to craft it, having already considered the financial industry’s positions restated in the memorandum. The department first attempted to protect retirement savers with a fiduciary-duty rule in 2010. Responding in good faith to industry concerns, the department delayed taking action on it so that it could hear from all stakeholders. Over the next several years, the Labor Department consulted with industry groups and investor advocates. The department proposed the current rule in 2015, then spent about a year listening to industry professionals once again ― through comment letters, meetings and public hearings.

The final fiduciary-duty rule emerged in 2016. To avoid sudden disruption, the department even granted the financial industry time to adjust, drawing the implementation period out over almost two years. Three different federal judges have rejected attempts to block or delay the Labor Department’s fiduciary rule.

Professor Jeremy Sheff’s forthcoming book, Valuing Progress: A Pluralist Approach to Knowledge Governance, is now under contract with Cambridge University Press.

Here’s a blurb:

Should the crops that feed the world be patented? How should musicians earn a living? Why does lung cancer research get half as much funding as breast cancer research? Should a college textbook cost 50% less in Bangkok than it does in Boston? Who should pay for childhood vaccinations in the developing world? The answers to these questions not only shape the world we live in; they have profound cascading effects on the future, and on the lives and opportunities that will be available to generations not yet born.

Valuing Progress is a book about our relationship with the future. It is about the ways societies go about deciding how to make tomorrow better than yesterday, how they determine whose desires for the future will be pursued and whose will be deferred or denied, and how they apportion the burdens and benefits of getting us there. It is about how we collectively use social institutions—especially legal institutions—to generate and distribute the new knowledge that the future will depend on. And most importantly, it is about how we justify those institutions. Its core argument is that that the creation and distribution of new knowledge implicates plural and competing values, and that designing regimes to govern new knowledge therefore requires institutions and ethics that can accommodate those values.

Valuing Progress will be available in late 2018.

Professor Ray Warner played a leading role in the creation of the Ian Fletcher International Insolvency Moot, which held its inaugural competition this week in Sydney, Australia.

Jointly sponsored by INSOL, the world’s leading insolvency organization, and the International Insolvency Institute, an honorary society of the world’s leading insolvency judges, practitioners and academics, the competition focuses on issues of cross-border insolvency law. The final round of the competition was held at the Federal Judicial Court of Australia before a panel of leading jurists from Australia, England and the United States.

Professor Anita S. Krishnakumar’s article, Textualism and Statutory Precedents, has been accepted for publication by the Virginia Law Review.  Here is the abstract:  

This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: The Court’s textualist Justices—or at least some subset of them—have proved remarkably willing to abandon stare decisis and to argue in favor of overruling established statutory interpretation precedents. This is especially curious given that statutory precedents are supposed to be sacrosanct; Congress, rather than the Court, is the preferred vehicle for correcting any errors in the judicial construction of a statute and courts are to overrule such constructions only in rare, compelling circumstances. What, then, accounts for the textualist Justices’ brazen willingness to overrule statutory precedents in recent years? And how can this practice be reconciled with textualism’s core aims of promoting clarity and stability in the law?

This Article advances a threefold thesis. First, it argues that the textualist Justices view precedents that create a test for implementing a statute (e.g., the “motivating factor” test for Title VII violations) as different from ordinary text-parsing statutory interpretation (e.g., “labor” means “manual labor”). More specifically, textualist jurists regard what I call “implementation test” precedents as akin to common law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation test exception” to the heightened stare decisis protection normally afforded statutory precedents. Second, the Article links textualist Justices’ proclivity to overrule to an oft-unspoken predicate assumption of textualism—i.e., that there is a singular “correct answer” to every question of statutory interpretation. This assumption may make it especially difficult for textualist jurists to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. Last, the Article notes that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order—including outmoded precedents reached through the use of illegitimate, atextual interpretive resources.

Ultimately, the Article both supports and critiques textualist Justices’ approach to statutory precedents. On the one hand, it argues that a relaxed form of stare decisis for implementation test precedents makes sense for many reasons, as long as special deference is given to implementation tests that Congress has expressly endorsed. At the same time, it rejects textualists’ attempts to overrule non-implementation test precedents based on simple disagreement with the original interpretation.

Professor Rosemary Salomone’s commentary, “Linguistic Battle Sparks Revolt Against Globalisation,” in the March 10th edition of University World News, examines the Italian Constitutional Court’s recent decision in a case brought by professors at Milan’s prestigious Polytechnic Institute challenging the university’s plan to offer all graduate programs in English.

In a well-reasoned opinion affirming rights to free speech and equality and the primacy of the Italian language, the Court upheld a 2010 law permitting university courses in a foreign language to promote international careers while, at the same time, the Court set constitutional limits on how universities might apply the law. The Court noted that universities cannot offer entire programs in another language unless they offer parallel programs in Italian. But they can offer individual course units entirely in other languages provided they do not marginalize Italian. It now rests with the Consiglio di Stato, the national administrative court in Rome, to apply these directives to the Polytechnic plan. The prospect of offering parallel programs in English and Italian, as done in some Nordic countries, could prove financially unfeasible as the university argued when the administrative court raised that possibility in 2014. It remains to be seen whether the decision’s legal weight, though grounded in Italian law, will give momentum to a wider backlash against English and globalization eroding national identities and implicating linguistic justice, questions that Professor Salomone explores in depth in her current book project to be published by Oxford University Press. The full commentary can be found here.

Professor Patricia Montana presented her article, Bridging the Reading Gap in the Law School Classroom, forthcoming in the Capital University Law Review, this weekend at the 2017 Rocky Mountain Legal Writing Conference in Phoenix, Arizona.

Here is a brief description of the presentation:

Many students struggle in law school because they do not know how to read text closely and have limited practice in reading complex or lengthy pieces of writing that demand deep thinking and reflection. The presentation discussed how students’ prior educational experiences and relationship with technology contribute to this problem. The presentation also explored ways to improve the reading skills of entering students. Because a strong basis in reading is so critical to not only performing well in law school, but also to becoming a practice-ready attorney, law professors need to focus more attention on narrowing the reading gap.

Professor Warner will be in Sydney, Australia, March 14-20, to run the INSOL Global Insolvency Practice Course.

The year-long course trains established practitioners to handle complex cross-border business insolvencies. It draws practitioners from around the world and culminates in a week-long simulated case exercise involving judges from multiple jurisdictions. Professor Warner will complete his second term as the Course Leader in May.

Professor Jeff Sovern was quoted in four media outlets in the past few weeks. On February 16, Politico’s Morning Money Newsletter, ran the following:

SHOULD TRUMP HEAR FROM CONSUMER GROUPS? — St. John’s University law school’s Jeff Sovern emails: “You reported today that the president ‘will participate in a listening session with the Retail Industry Leaders Association and member company CEOs.’ You have reported a number of sessions in which the president met with CEOs. When will he hold a listening session with consumer advocates? The people who help the ordinary Americans the president pledged to work for during the campaign.”

Bloomberg BNA’s February 24 article, Chastened FTC May Foretell Future of CFPB, explained:

Jeff Sovern, a consumer law professor at St. John’s University in New York and a CFPB supporter, favors the decisiveness a single director can provide. “A commission structure like the FTC”—currently down to two commissioners in office—“increases the likelihood of gridlock,” he told Bloomberg BNA.

In a February 17 article headlined Facing Trump, CFPB Picks Up Enforcement Pace, Law360 reported:

[T]he more the CFPB puts itself in the public eye, the more grist it creates for its opponents, according to St. John’s University Law School professor Jeff Sovern.

“A countervailing pressure might be the knowledge that a slip-up could be used to tarnish the bureau in the unforgiving environment in Congress. That would tend to push people to measure twice before cutting once,” Sovern said.

And that, too, will play a role in the fight to come.

On February 13, Pacer Monitor’s piece, Challenges to Consumer Debt Regulations Have Legal Scholars on High Alert, provided Sovern’s comment about the Supreme Court’s forthcoming Fair Debt Collection Practices Act decision in Henson v. Santander Consumer USA:

“That’s an important issue because debt buyers buy and collect on many debts and if they are not subject to the FDCPA, they may be able to avoid liability for certain conduct prohibited by the statute,” Jeff Sovern, professor of law at St. John’s University School of Law writes said via email. “The Consumer Financial Protection Bureau would still have the power to proceed against debt buyers under its power to prohibit deceptive, unfair and abusive practices, and state statutes may prohibit some conduct, but the debt collection landscape would change dramatically if the Court were to rule that the FDCPA doesn’t apply to debt buyers. Consumers could no longer sue debt buyers for violating the FDCPA.”