St. John's University Law Faculty Blog

Professor Patricia Montana presented at the Southeastern Regional Legal Writing Conference on April 21, 2018. Her presentation, Live and Learn: Live Critiquing and Student Learning, explored how to give “live” feedback in a way that best supports student writing.

Live critiquing is the process of giving students feedback on their written work “live,” rather than in writing, and at the same time as the professor is first reading the student’s work. This process gives students an opportunity to engage with their drafts, talk out their reasoning and writing decisions, and receive quick and individualized feedback. Through the presentation, Professor Montana discussed these benefits as well as some of the drawbacks of the technique, and offered modifications to help improve the experience for both the professor and student.

On April 12, 2018, Professor John Q. Barrett was one of 13,000 participants in this year’s International March of the Living from Auschwitz to Birkenau, horrific sites in Poland of Nazi imprisonment, torture, enslavement, and extermination, primarily of Jews, during World War II.  

On the following day, Professor Barrett delivered a keynote lecture, “Justice Jackson and the Holocaust,” at a conference in Krakow, Poland, for lawyers, judges, academics, and others from the U.S. and other countries. The conference was co-sponsored by the International March of the Living, Rutgers Law School, and the New Jersey State Bar Association. For video, click here; Professor Barrett’s lecture begins around the 2:47:10 mark.

Professor Barrett is biographer of Justice Robert H. Jackson, U.S. chief prosecutor at and principal architect of the 1945-1946 international Nuremberg trial of Nazi war criminals. Professor Barrett writes The Jackson List, which reaches over 100,000 readers around the world.

Professor Elayne Greenberg’s article, “… Because ‘Yes’ Actually Means ‘No’: A Personalized Prescriptive to Reactualize Informed Consent in Dispute Resolution” has been accepted for publication in the fall edition of the Marquette Law Review.  

​Here is the abstract:

This paper proposes a radical departure from the status quo approach to securing a client’s informed consent about settlement options and refocuses informed consent practice back to what informed consent is about, the client. As it exists today, the status quo approach to securing a client’s informed consent about whether or not to use an alternative dispute resolution procedure to resolve the client’s case is inadequate. It thwarts a client’s right to exercise party self- determination and stymies a client’s ability to make informed justice choices. Lawyers, courts, ADR providers and neutrals routinely provide litigants with generic information about the structure and procedures of dispute resolution procedures that these professionals assume litigants need to make an informed decision about whether or not to litigate or to use alternative choices. Litigants, however, might find this information inadequate to support their personal decision making process. Furthermore, litigants often find this information presented in a way that is incomprehensible to the litigant’s way of processing information and making decisions. Conspicuously absent from this one-size-fits-all approach to informed consent is a more customized way to share information about the dispute resolution procedures that is tailored to the particular individual’s needs, values, and decision-making process.
Despite this inadequate information, however, many litigants still give a reflexive assent to the generic recitation of information explaining dispute resolution procedures, believing that they have no real choice. Some litigants may not even realize that they have the autonomy to choose as part of their right to make decisions about their case. Still, other litigants may be hesitant to ask for additional information, not wanting to be viewed as “stupid.” Still, others may not fathom what information they might want or need to know in order to make an informed choice. Thus, when litigants agree to participate in or opt out of a dispute resolution procedure, their “yes” may mean “no.”

 

The proposal culls from both the research on dispute resolution literacy and the innovations in the health care industry regarding informed consent and recommends a three part prescriptive. First, a database will be created that contains the universe of information that individual consumers of dispute resolution actually want to know when choosing their justice option. Second, from the broader database, each client will be able to develop his or her own customized personal profile of informational needs. The personal profile will titrate the information from the broader database and provide the client with information tailored to each client’s informational, decision-making and personal preferences. Third, lawyers and dispute resolution professionals will be educated about how to use the client’s personal profile to tailor the professional-client conversation to include relevant information to the client about the dispute resolution options being considered. The goal is to fortify clients with the information about dispute resolution procedures commensurate with the client’s informational needs, decision making process and personal values so that the client will finally be able to give their meaningful informed consent to their justice option choice.​

This month, Professor Mark Movsesian presented his draft, “The Future of Religious Freedom,” at a faculty workshop at Princeton University.

The workshop was sponsored by the James Madison Program in American Ideals and Institutions, where Professor Movsesian is a visiting fellow​ this semester.  Professor Movsesian also presented his research at a dinner for Princeton undergraduates organized by the Madison Program.

Professor Patricia Montana’s article, Watch or Report? Livestream or Help? Good Samaritan Laws Revisited: The Need to Create Duty to Report, will be published in the Cleveland State Law Review.

Recent cases, like the one in Florida in July 2017, where a group of five teenagers taunted a drowning disabled man while filming his death on a cell phone, rather than coming to his aid or reporting his drowning, have sparked a renewed debate over whether Good Samaritan laws adequately serve the public’s interest.

In this article, Professor Montana explores whether states should penalize a person’s failure to aid when another person is clearly in danger of physical harm or death. She argues that the need is particularly great given the power of social media and its intersection with a bystander’s ability and decision to help. As technology advances, relationships have become increasingly impersonal, thereby wearing at an individual’s connection to and compassion for others. Social media has added a new dimension to the longstanding debate of whether laws should impose on bystanders a duty to help. In cases where a bystander is observing a crime online, the duty can be met quite simply by alerting authorities to the crime or danger. And in cases where a bystander might be tempted to use social media rather than help, the legal duty could compel the more moral choice. Accordingly, the Article proposes that states should adopt duty to aid statutes mandating that bystanders give aid or call for help when they can.

Professor Jeremy N. Sheff‘s article, “Legal Sets,” has been accepted for publication in the Cardozo Law Review.

Here is the abstract:

In this Article I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned, not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases, and help organize the available options for resolving such cases according to their form. While many legal professionals may intuitively navigate this set-theoretic structure, the formal model of that structure has important implications for legal theory. In particular, it generates a useful account of the relationships among rules, standards, and principles; provides a novel set of tools for understanding the nature of precedent; and illuminates an extra-linguistic dimension to the problem of judicial discretion. On the last point, I argue that discretion is not merely a product of the imperfect relationship between abstractions and reality, or between natural language and the world, but that it is instead an emergent structural property of the structure of legal practice: a structure composed of sets “all the way down.”

On Friday, April 13, Professor Anita S. Krishnakumar discussed her article, Textualism and Statutory Precedents, 104 Va. L. Rev. 157 (2018), with Professor Saikrishna Prakash at a panel hosted by the Virginia Law Review.  The online version of the article, which was just published this past week, can be found here.  

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’ unabashed 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 for overruling to an oft-unspoken predicate assumption of textualism—that is, 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.

 

On April 2, Professor Mark Movsesian participated as a guest faculty member in a Columbia Law School seminar, “Reading Group in the American Constitutional Tradition.”

The seminar, for 2Ls, 3Ls, and LLM students, examines important texts in American constitutional history. The session in which Professor Movsesian participated, hosted by Columbia law professor Philip Hamburger, focused on excerpts from Tocqueville’s “Democracy in America.”

Professor Lawrence Joseph article “Through Narrative and By Metaphor: Creating a Lawyer-Self in Poetry and Prose” is included in Narrative and Metaphor in the Law, edited by Mike Hanne and Robert Weisberg (Cambridge University Press, 2018).  

On February 1, 2018, he spoke at Georgetown University in its Faith and Culture Series, through the office of Georgetown President John J. DeGioia.

So Where Are We?, Professor Joseph’s most recent book of poems, was praised by David Skeel” in the Wall Street Journal, on September 11, 2017 as including poems both “relevant and lasting.”  On October 5, 2017, he read from his poetry at the University of Minnesota, and, on November 2 and 3, 2017, he was a featured writer at the University of Florida’s Writer’s Festival.  An interview of Professor Joseph with Marianne Szegedy-Maszak appeared in Mother Jones on November 25, 2017.  On December 22, 2017, So Where Are We? was named among the “Ten Best Books of Poetry for 2017” in the New York Times Book Review. In the Times Literary Supplement on January 9, 2018, Declan Ryan describes So Where Are We? as “poetry of the immediate present built to outlast ephemerality.”An interview with Professor Joseph by Philip Metres is featured in the Winter-Spring 2018 issue of the Michigan Quarterly Review.

Professor Jeff Sovern‘s article, Validation and Verification Vignettes: More Results from an Empirical Study of Consumer Understanding of Debt Collection Validation Notices​ (with Dr. Kate Walton and Nathan Frishberg), will appear in the Rutgers Law Review.  The article follows up on Sovern’s earlier article with Walton, Are Validation Notices Valid? An Empirical Evaluation Of Consumer Understanding Of Debt Collection Validation Notices, 70 SMU L. Rev. 63 (2017)​.

On March 26, Professor Sovern spoke at the Practising Law Institute’s Annual Consumer Financial Services Institute on a panel titled The CFPB Under the Trump Administration: Where is it now and where is it going? On April 5, he spoke at Hofstra Law School. And on March 15, in an article headlined 56 years later, Kennedy’s call for a consumer bill of rights is forgotten under Trump​, Sovern was quoted as follows:

“Overall, I would say things are better than they used to be,” said Jeff Sovern, a professor at St. John’s University School of Law in New York. “But under this president, the government is not keeping Kennedy’s commitment to protect consumers.”

He added: “I could imagine Trump first endorsing a consumer bill of rights, and then walking it back after he spoke to lobbyists and members of his administration, which unfortunately may be the same thing at this point.”