St. John's University Law Faculty Blog

Professor Jeff Sovern’s op-ed, Financial Choice Act Prioritizes Banks Over Consumers, appeared in Morning Consult on July 25. Sovern wrote:

Remember how back in 2008, the Bush administration shepherded a $700 billion bank

bailout through Congress? Well, the House of Representatives voted last month to rescue banks yet again. And if its bill, the Financial Choice Act, becomes law, ordinary Americans may pay a bigger price than they did for the 2008 bailout.

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Supporters of the bill, claiming that every day the country loses another community bank, argue that banks are in trouble. The culprit, in their eyes, is the Dodd-Frank Act, passed in 2010 to prevent another financial crisis, which they argue imposes excessive regulation on banks.

Opponents of the bill note that, as one recent headline had it, American bank profits are higher than ever, and community bank profits rose by more than 10 percent in the first quarter of this year. Despite the consolidation of community banks — a trend that began years before Dodd-Frank, suggesting other causes for the consolidation — the country still has almost 6,000 FDIC-insured banks, and a similar number of credit unions.

In addition, a July 21 report by the Democratic Staff of the House of Representatives Committee on Financial Services titled The Consumer Financial Protection Bureau in Perspective cited Sovern’s July 13 article in Fortune, “How This New Rule Prevents Your Bank From Ripping You Off.” The same Fortune article was also quoted in a Politico newsletter on July 20.

Sovern was also quoted in a Center for Public Integrity story, headlined “Who is killing the CFPB’s arbitration rule?”:

“We know what happens with a class action: Wells Fargo agrees to give $140 million. We also know what would happen in arbitration: Consumers who only have small claims wouldn’t get anything,” said Jeff Sovern, a law professor at St. John’s University.”

Finally, a story at Creditcards.com titled “Why I opted out of credit card arbitration – and you should too” stated:

For that reason, opponents of arbitration call the opt-out clause an empty gesture. “I think it’s basically a trick to create the illusion of choice,” said Jeff Sovern, a professor at St. John’s University School of Law in New York, who has studied arbitration clauses in consumer contracts. Most consumers don’t understand the arbitration clause, or even know it is buried in the fine print of their contract, he said. A minuscule number of customers take advantage of it. “They don’t make it easy to opt out,” he said.

Professor Anita S. Krishnakumar‘s article, Reconsidering Substantive Canons, was published earlier this month in the University of Chicago Law Review.  The article challenges much of the conventional wisdom about substantive canons of statutory construction.

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—for example, the rule of lenity, the avoidance canon, and 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 Antonin 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 challenges 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 mechanism 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.

 

Professor Elayne E. Greenberg‘s essay “The Power of Empathy” was re-published in the Negotiation & Dispute Resolution eJournal vol. 18, No. 34 on July 17, 2017.

Here is the abstract:

Empathy is a powerful conflict resource that has a positive ripple effect on the neutrals, advocates and participants. For advocates, arbitrators and mediators who strive to ethically achieve the ofttimes elusive goal of objectivity, even-handed empathy toward both parties is an effective de-biasing tool. As a de-biasing tool, empathy helps us make better deals because we can then garner quality information less shackled by cognitive biases. For participants in a dispute resolution process, empathy enhances their perception of the legitimacy of the process and their esteem for our legal system as a whole. Empathy as a conflict resolution resource should be included in our work and our trainings.​

Professor Elayne E. Greenberg was invited to critique the empirical research that assessed whether there is a need for a new UNCITRAL instrument to enforce global commercial mediation.  

Her critique, “Realizing the Gap Between Rationality and Information,” was published in 74 Wash. & Lee L. Rev. Online 47 (2017) on July 17, 2017.

 

Professor John Q. Barrett recently gave the following lectures:

· On May 4th, he delivered a keynote lecture, “The Rule of Law at Nuremberg and Lessons for Today,” at the Superior Court of Justice (Ontario) Spring Education Seminar, in Ottawa, Ontario, Canada;

· On June 11th, he delivered the inaugural Milton Mann Lecture, on “The Nuremberg Trials,” at the Jewish Historical Society of Fairfield County, in Stamford, CT;

· On June 23rd, he delivered the inaugural Alan Y. Cole Lecture, “Robert H. Jackson on Immigrants, Citizens, Power, & Liberty,” at a Robert H. Jackson Center conference on Immigration, Security, and American values, in Jamestown, NY—for video, click here; and

· On July 6th, he delivered a lecture, “Allies Among Allies: Justice Robert H. Jackson and His U.K. Colleagues on the Road the Nuremberg, 1945,” at the Canadian Institute for Advanced Legal Studies’ Cambridge Lectures 2017, at Queens’ College, University of Cambridge, in Cambridge, England, United Kingdom.

Professor Barrett also recently published the following:

· The Nuremberg Trials: A Summary Introduction, 39 Loyola Int’l & Comparative Law Review 336-50 (2017), an edited version of the keynote lecture that he delivered at a Nuremberg symposium in Krakow, Poland, in May 2016—for the full symposium proceedings, click here;

· On April 23, for Yom HaShoah (Holocaust Remembrance Day), an op-ed piece, “Humanity’s March: From Nuremberg to Today,” in The Jerusalem Post; and

· A New Chief Justice in the Sight of His Predecessor: Stone and Hughes, Summer 1941, 42 Journal of Supreme Court History 202-08 (2017).

Professor Barrett, a former Iran/Contra investigation associate counsel and U.S. Department of Justice attorney, also has appeared or been quoted recently in various media regarding U.S. investigations of Russian efforts to interfere with the 2016 U.S. presidential election, former F.B.I. Director Comey, President Trump, Special Counsel Mueller, and related topics, including in The New York Times, The Globe & Mail, The Economist, Financial Times, The Atlantic online, The Los Angeles Times, TIME online, and on various CNN programs, National Public Radio, KPCC Radio, and the Voice of America.

Professor Eva Subotnik presented two articles at the 9th annual workshop held by ISHTIP, the International Society for the History and Theory of Intellectual Property. The workshop, held from July 12-14, 2017 at the University of Toronto’s law school, focused this year on the theme of ‘Intellectual Property as Circulation and Control.’

Professor Subotnik’s works-in-progress on the roles of post-death copyright successors and on the evolving nature of photography as a profession in the digital age, co-authored with Professor Jessica Silbey, Northeastern University School of Law, and Professor Peter DiCola, Northwestern University Pritzker School of Law, were the subjects of comment and critique by invited commentators and workshop participants.

In addition, Professor Subotnik’s work on the intersection of IP and estates law has been praised in two recent postings on the The Faculty Lounge Blog (see here and here).

Dean Michael Simons and Vice Dean Larry Cunningham spoke at the American Bar Association’s conference for Law School Associate Deans in Chicago, IL, July 11-13, 2017. They led a session about making strategic budget decisions in challenging times.

Dean Simons also spoke at a plenary on the basics of law school budgeting and finance, and Dean Cunningham moderated a panel on legal issues for higher education administrators. Dean Cunningham was also on the planning committee for the conference.

Professor Jeff Sovern’s article, co-authored with St. John’s Associate Professor of Psychology Kate Walton, Are Validation Notices Valid? An Empirical Evaluation of Consumer Understanding of Debt Collection Validation Notices, 70 SMU L. Rev. 63 (2017), has been published. Here is the abstract:

A principal protection against the collection of consumer debts that are not actually owed is the Fair Debt Collection Practices Act’s validation notice, which obliges debt collectors demanding payment to notify consumers of their rights to dispute debts and request verification, among other things. This Article reports on the first public study of whether consumers understand the notices or what they take away from them. For nearly four decades, courts have decided whether validation notices satisfied the FDCPA without ever knowing when or if consumers understand the notices. This Article attempts to remedy that problem.

Collectors who prefer that consumers focus on the request for payment rather than a statement of consumer rights will find our results heartening. When we surveyed consumers by showing them a collection letter the Seventh Circuit had upheld against challenge, on most questions respondents did not show significantly better understanding of the validation notice in that letter than on an otherwise identical letter without any validation notice at all. More than half the court-approved letter respondents seemed confused by the notice’s phrasing about when the collector would assume the debt to be valid. About a quarter did not realize they could request verification of the debt, and nearly all who realized they could seek verification also thought that an oral request was sufficient even though both the statute and notice specify that a writing is required. More than a third of respondents thought that if they did not meet the thirty-day deadline specified in the validation notice for disputing the debt, they would have to pay the debt or could not defend against a suit to collect it even if they did not owe the debt. Under the standard the FTC uses for determining deception in surveys, the notice would be found deceptive.

Our results raise troubling questions about the effectiveness of current forms of validation notices, and therefore whether consumers being pursued by collectors for debts they do not owe are appropriately protected. The willingness of courts to approve validation notices that do not serve Congress’s goals creates the illusion of consumer protection without the reality.

In addition, Fortune posted Professor Sovern’s commentary about the Consumer Financial Protection Bureau’s new arbitration rule, titled How This New Rule Prevents Your Bank From Ripping You Off.  Professor Sovern explained:

Most people don’t sue when someone takes advantage of them for, say, $300. It’s just not worth it. That’s where class actions and the CFPB come in * * *
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Wells Fargo * * * agreed [in the unauthorized account class action] to a class action settlement of $142 million. The settlement still requires court approval, but the court approved it preliminarily earlier this month. Lawyer fees are capped at 15% of the $142 million. And if the remaining money isn’t enough to compensate its customers, pay the lawyers, and provide injured customers with an extra $25 million, Wells Fargo will chip in more.
The Wells Fargo case shows the difference between arbitration and class actions: the difference between getting nothing and getting something. * * *
* * *
Critics of the rule claim that class actions are just giveaways to lawyers. It’s true that not all class actions work as well as the Wells Fargo one, but the remedy for bad class actions is no more to eliminate them than the remedy for bank misconduct is to eliminate banks. Rather, the remedy is to make sure courts live up to their obligation to approve class action settlements only if they are “fair, reasonable, and adequate.”

Professor Mark Movsesian was quoted in The Atlantic on July 13, 2017 in an article discussing this week’s ruling, by the European Court of Human Rights, that Belgium’s ban on burqas in public places does not violate the freedom of religion under the European Convention on Human Rights.

A link to the article, titled “Does the Burqa Have a Future in Europe?,” can be found here.

 

Professors Sovern, Calabrese, and Goldweber published an essay, Why we need to save the Consumer Financial Protection Bureau on The Conversation on July 10. The piece was republished by SFGate, the online version of the San Francisco Chronicle, among other outlets.  The Conversation is an independent source of news and views from academics to the public, and is supported by numerous universities, as well as the Bill and Melinda Gates Foundation, and other foundations.

The essay explains, among other things, how a CFPB rule helped a client of the Law School’s Consumer Justice for the Elderly: Litigation Clinic:

In 2014, Alice, a client of our law school clinic, was struggling to pay the mortgage on her home – which she had refinanced a few years earlier – after a stroke forced her into retirement. Our clinic helped her apply for a modification of her loan.
But within weeks, instead of acknowledging Alice’s application, the loan servicer summoned her to court to begin foreclosure proceedings in violation of CFPB servicing rules. Fortunately, our clinic was able to rely on those rules in getting the foreclosure action dismissed. Alice got her loan modified and remains in her home.