St. John's University Law Faculty Blog

Professor Cheryl L. Wade presented two lectures to the students and alumni at the University of Houston Law Center.

The lectures, entitled The Historical Significance of Black Migration, the Search for Work, and the Impact of Corporate Governance, were part of Dean Leonard M. Baynes’ Black History Month lecture series, now in its fourth year. Professor Wade was interviewed for the radio program Houston Matters, a Houston NPR affiliate, about the substance of her presentations. The interview can be found here.

 

The Legal Writing Institute has selected Professor Patricia Montana’s article, Bridging The Gap in the Law School Classroom, to be published in Volume 7 of its Monograph Series.

The Monograph Series is an electronic journal published by the Legal Writing Institute on its web site. The Monograph Series reprints foundational articles on subjects that are important to the teaching and study of professional legal communication. Volume 7 of the series is an update to Volume 2, the New Teacher’s Deskbook. The updated New Teacher’s Deskbook will focus on topics important to new legal writing professors, including legal writing pedagogy, legal research, and legal writing careers.

Professor’s Montana’s article, Bridging The Gap in the Law School Classroom, was originally published in 2017 in Volume 45 of the Capital University Law Review. The article explores ways to close the gap in the reading skills of entering law students so that they can develop the competencies in legal reading, analysis, and writing required to excel in law school.

Professor Michael A. Perino’s article, The Lost History of Insider Trading, has been accepted for publication in the Illinois Law Review.  Here is the abstract:

Common conceptions about the history of insider trading norms in the United States are inaccurate and incomplete. In his landmark 1966 book Insider Trading and the Stock Market, Dean Henry Manne depicted a world in which insider trading was both widespread and universally accepted. It was SEC enforcement efforts in the early 1960s, he contended, that swayed public opinion to condemn what had previously been considered a natural and unobjectionable market feature. For five decades, the legal academy has largely accepted Manne’s historical description and the vigorous debates over whether the federal government should prosecute insider trading have assumed, either explicitly or implicitly, the accuracy of those views. This paper challenges that conventional wisdom and shows that the shift in insider trading norms began earlier than has previously been supposed and substantially preceded governmental enforcement efforts. Insider trading, while generally believed to be ubiquitous in turn-of-the-century stock markets, was not universally condoned. In fact, the propriety of the practice at publicly traded companies was highly contested. Those debates coincided with the growth of public companies and an ongoing shift in views about how the stock market functioned. The early twentieth century debate over insider trading thus featured both modern arguments about property rights in information and the effect that insider trading has on stock market participation and older ideas about manipulation and market inefficiency that would generally not be accepted today.

Professor John Q. Barrett recently published an article, “Jackson, Vinson, Reed, and ‘Reds’: The Second Circuit Justices’ Denials of Bail to the Bail Fund Trustees (1951),” in The Journal of Law, a peer-reviewed journal.  

You can download the article here on SSRN. Here is an abstract:

“This article chronicles a Cold War saga involving American Communist Party leaders; their criminal prosecutions and convictions; defenders of their civil rights; U.S. Supreme Court justices; “Circuit Justice” decisions in chambers; and various persons’ travels, law work, and law work avoidance.

In June 1951, the U.S. Supreme Court affirmed the criminal convictions and prison sentences of eleven leaders of the Communist Party of the U.S.A. (Dennis v. U.S.), declined to review the criminal contempt convictions and prison sentences of six of their attorneys (Sacher v. U.S.), and then began its summer recess.

These defendants, who were out on bail during their appeals, then petitioned Justice Robert H. Jackson, the Second Circuit Justice, to stay the issuance of the Court’s mandate. After hearing oral argument in his chambers, Justice Jackson granted the stay to the Sacher defendants but denied it to the Dennis defendants.

The Dennis mandate then issued. The trial court in the Southern District of New York ordered the defendants to surrender for incarceration. Seven did surrender but four did not—they skipped out on their bail.

To assist in the pursuit of these prominent fugitives, the District Court summoned to testify the trustees of the civil rights fund that had provided their bail. The District Court sought to determine if the trustees had relevant information—bail fund donors, for example, might be people who were assisting the fugitives. But the Bail Fund trustees—Frederick Vanderbilt Field, Dashiell Hammett, and W. Alphaeus Hunton—claimed constitutional privileges and refused to testify. So the District Court convicted them of criminal contempt and sentenced them to prison.

The Bail Fund trustees appealed their convictions and sought bail pending appeal. After the District Court and then the U.S. Court of Appeals for the Second Circuit denied the Trustees’ motions for bail, they were incarcerated.

The Bail Fund trustees then sought bail from the Supreme Court’s Second Circuit Justice. Justice Jackson, who by then was away from the Court on his summer vacation at the Bohemian Grove in California, told Chief Justice Vinson, vacationing in the Adirondacks, that he (Jackson) would not hear the matter. Vinson then appointed Justice Stanley Reed, vacationing at his home in Kentucky, to serve as Acting Second Circuit Justice. Reed, after hearing argument at his home in Kentucky, denied the petitions—the Bail Fund trustees remained in prison.

After the Court of Appeals affirmed the Bail Fund trustees’ criminal contempt convictions that fall, the trustees sought Supreme Court review. They also petitioned Circuit Justice Jackson for bail while the Court considered whether to review the convictions. The Court denied review. Concurrently, Justice Jackson denied the petitions (now moot) for bail.

In the end, each Bail Fund trustee served multiple months in federal prison for his criminal contempt conviction for refusal to testify.”

Professor Anita S. Krishnakumar’s article, Passive Avoidance, has been accepted for publication in the Stanford Law Review.

Here is the abstract:   

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 evade 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 Article examines the Roberts Court’s recent shift in approach to the avoidance canon. It departs from the conventional wisdom about the Roberts Court and the avoidance canon in several important ways. First, it posits that the conventional view about the Roberts Court’s aggressive use of the avoidance canon may itself have contributed to the Court’s shift away from invoking the avoidance canon in recent cases—as the Court has ratcheted down its use of the canon in response to commentators’ attacks against its early term avoidance reliance. Second, the Article argues that the recent Roberts Court has adopted a “passive” rather than aggressive form of avoidance, in which it effectively avoids deciding controversial, unresolved constitutional questions—but without invoking avoidance and without openly admitting to rewriting or straining the statute’s text. Third, and perhaps most importantly, the Article uncovers several new tools of “passive avoidance” that the Court has employed to do the work previously performed by the avoidance canon. In the end, it posits that passive avoidance may actually be a good thing—and the truest form of constitutional avoidance.

 

Professor Kate Levine’s article, Discipline and Policing, has been accepted for publication in the Duke Law Journal. 

Here is the abstract:

A prime focus of police reform advocates is the transparency of police discipline. Indeed, transparency is one of if not the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. First, it problematizes the notion that transparency is a worthy end-goal for those who desire to see police reform in general. Transparency is often seen as a solution with no downside, but this Article argues that, in the realm of PDRs, it comes with at least two major tradeoffs: first making PDRs public will not lead to the accountability that advocates seek, and in fact may cause retrenchment from police departments. Second, transparency on an individual level necessarily comes with major privacy tradeoffs.

The problem with individualized transparency is not theoretical. in fact, it has been much critiqued by scholars in a different but comparable realm: the wide dissemination of criminal records. PDRs and criminal records have similar problems: due process issues, inaccuracy, arbitrary and discriminatory enforcement, and permanent reputational harm. Indeed, the rhetoric used by law enforcement to defend their privacy rights sounds almost identical to the critiques scholars make of criminal record transparency.

This Article argues that the comparison of PDRs and Criminal Records is instructive because it allows us to view criminal records through a new lens. As with criminal record publication, forced PDR transparency will likely not solve the problems advocates hope it will. Thus, the Article concludes that a more nuanced regime should be put in place for PDRs, and that advocates should use law enforcement rhetoric to support a more privacy-protective regime for criminal records.

Professor Anita S. Krishnakumar’s book review, The Canon Wars, co-authored with  Victoria F. Nourse, of Georgetown Law School, has been accepted for publication in the Texas Law Review.  The review discusses Yale Law School Professor William N. Eskridge’s recent book, Interpreting Law: A Primer on How to Read Statutes and the Constitution (Foundation 2016).

Here is the abstract:

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning, and originalists Will Baude and Stephen Sachs, have all suggested that principles of “ordinary interpretation” ⎯including canons ⎯should inform constitutional interpretation. Given this new-found enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons, one by Justice Scalia and Bryan Garner, Reading Law: The Interpretation of legal Text, and the other by Yale Law Professor William N. Eskridge, Interpreting Law:  A Primer on How to Read Statutes and the Constitution. Both volumes purport to provide ways to use canons to read statutes and the Constitution. In this Review of Interpreting Law, we argue that this contemporary convergence on canons raises some significant interpretive questions about judicial power and the very idea of a canon.

Professor Kate Levine presented her article, Discipline and Policing, to the faculties of Touro Law Center (on February 14) and Northern Kentucky, Salmon P. Chase College of Law (on March 1).  She will also present Discipline and Policing at the Internet Law Works in Progress conference at New York Law School on March 24.

Here is the abstract for the article:

This paper examines police disciplinary records (PDRs). These records are part of an officer’s personnel file and contain reported wrongdoing from sources such as supervisors, Internal Affairs Bureau investigations, and Community Complaint Review Boards. Kate’s article argues that a current movement, led mostly by civil rights groups, to make PDRs public is problematic on a number of levels. The paper first shows how prevalent the notion of transparency has become in police reform scholarship and policymaking. It questions the efficacy and long-term benefits of the “transparency cure” for policing problems generally, and then does so specifically for PDRs. Advocates of PDR transparency hope that making records public will ramp up discipline of bad officers, reform police departments, and make communities safer. The paper argues that these hopes are in vain, and that, in fact, there is a real concern that police departments will retrench if forced to make discipline more public. The paper then shows how similar arguments in favor of making PDR’s public are to arguments deployed successfully by those who wished to make criminal records public — a reality that has been lamented and critiqued by scholars for decades. Finally, the paper shows that many of the problems inherent in making criminal record public: inaccuracy, arbitrariness, overdermination, and racial injustice, are just as problematic for PDRs, which emerge from a system comparable in its confusion and byzantine nature to the criminal justice system. Thus, the arguments scholars have made for decades about criminal record publication should be considered when it comes to PDR publication. And, the language which police groups use to defend their rights can and should be leveraged to argue for a tamping down of harshness toward criminal defendants. This paper builds on a series of articles arguing that the trend toward harshness for police who are accused of wrongdoing legitimates the harshness with which criminal defendants are treated.

On Friday March 2, Professor Anita S. Krishnakumar served as a panel commentator at the biennual Legislation Roundtable held at Fordham Law School.  The Roundtable brings together scholars who teach and write in the fields of Legislation and Statutory Interpretation and Administrative Law for a full day of works-in-progress workshops.  Professor Krishnakumar is a past organizer of the Roundtable.

On March 3^rd, Professor John Q. Barrett delivered a lecture, “Justice Robert H. Jackson, Trial Lawyer at Nuremberg,” at the American College of Trial Lawyers’ spring meeting, held in Phoenix, Arizona.  Other speakers included Federal Bureau of Investigation Director Christopher Wray, U.S. District Judge Diane J. Humetewa (D. Ariz.), Justice Barbara J. Pariente (Florida Supreme Court), Professor Michele Bratcher Goodwin (University of California-Irvine School of Law), and Justice Malcolm Rowe (Supreme Court of Canada).