St. John's University Law Faculty Blog

On May 16, 2018, Professor Kate Levine presented her paper, Discipline and Policing, at the Richmond Law School Junior Scholars Workshop.    On June 7, she will be in conversation with scholars from Brooklyn, Colorado, and Yale Law Schools at the Law and Society Association conference in Toronto about some of the problems with current police reform strategies, including the reform movement’s overreliance on transparency at the cost of important privacy principles, which she discusses at length in her paper.

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 Jeff Sovern was a panelist at the University of Houston Law Center’s Tenth Teaching Consumer Law Conference, held in Santa Fe, New Mexico, on May 18. Sovern’s topic was “Teaching Consumer Law: What Has Been Included–What Should Be?”

On May 24, Professor Sovern’s op-ed, The Consumer Financial Protection Bureau, Leaving the Public High and Dry, ran in the New York Daily News. Professor Sovern expalined:

[CFPB Acting Director] Mulvaney once called the bureau a “sad, sick joke” and co-sponsored a bill to eliminate it. The solution he has adopted to run an agency he thinks should not exist is to “be a good bureaucrat,” and do what the law requires — but no more. Mulvaney even extends this strict-construction approach to congressional testimony: He explained that he did not have to answer questions from the members of Congress because the statute said he had to “appear” before them but said nothing about responding to their queries — though he did so.

A problem with this grudging approach is that no legislature can write statutes to prohibit all the ways businesses devise to take advantage of consumers. When the bureau, then led by Obama appointee Richard Cordray, fined Wells Fargo $100 million for opening millions of unauthorized accounts, it did not rely on a statute that said banks cannot open sham accounts, because there is no such statute. Instead, the bureau used the more general authority Congress had given it to punish banks for unfair and abusive practices.

But a Consumer Financial Protection Bureau that interprets those powers as applying only to Wells Fargo will not provide consumers needed protection against other financial institutions. And not even Wells Fargo would have to worry if the Republican-controlled House of Representatives gets its way on a bill it passed to do away with the bureau’s power to sue financial institutions for unfair and abusive practices.

On May 8, Sovern was quoted in the Washington Examiner in an article headlined House Votes to End Obama-era Auto Lending Crackdown, kicking off legal debate​. According to the article:

“In the longer term, if the bureau gets leadership that wants to enforce the underlying law, I still doubt that it changes enforcement because the [Congressional Review Act] does not say anything about enforcement,” noted Jeff Sovern, a law professor at St. John’s University, “but rather only prohibits disapproved rules from taking effect and bars the agency from issuing rules that are substantially the same.”

Sovern is one of a few academics who have been in a debate over the ramifications of the disapproval with lawyers with Ballard Spahr, a law firm that represents financial institutions.
​

Finally, on April 9, BNA/Bloomberg ran an article captioned CFPB’s Mulvaney, Democrats Prepare for Battle in Congress about a forthcoming congressional hearing. The article stated:

There have also been changes in CFPB fair lending enforcement and data collection policies that need answers, said Jeff Sovern, a professor at St. John’s University Law School.

“This is an opportunity to learn more about what is happening at the bureau and for the members of the committee to fulfill their oversight function and I hope that is what happens,” Sovern said in an email.

Professor Mark Movsesian spoke about the upcoming Supreme Court decision in Masterpiece Cakeshop on a panel, “Religious Freedom at Home and Abroad,” at Princeton University ​on May 18.

The panel was part of a conference, “Taking the Measure of Where We Are Today,” sponsored by Princeton’s James Madison Program in American Ideals and Institutions, where Professor Movsesian is a visiting fellow this year. Other panelists were John DiIulio, Jr. (University of Pennsylvania), Michael Stokes Paulsen (University of St. Thomas School of Law), and Katrina Lantos Sweet (Lantos Foundation).

Vice Dean Larry Cunningham spoke about assessment in legal education at two conferences this week.  On May 15, 2018, at the International Association of Law Schools’ Law School Leadership Forum on the St. John’s Manhattan Campus, Dean Cunningham addressed the change in ABA accreditation standards from inputs to outputs. On May 16, he discussed the state of programmatic learning outcomes assessment in legal education at the ExamSoft Assessment-on-Tour conference held at St. John’s Queens campus.

On May 15, 2018, Professor Christine Lazaro participated as a panelist at the Securities Arbitration & Mediation Hot Topics 2018, a program offered by the New York City Bar Association.  The program covered a number of topics, including investment adviser arbitration, financial exploitation of the elderly, and current issues in investor-brokerage firm arbitrations.

Additionally, Professor Lazaro submitted an article for the program’s written materials, “Eligibility and Statutes of Limitations in Arbitration,” co-authored with Michael S. Edmiston.

On May 10th, Professor Rosemary Salomone moderated a panel on “The International Criminal Court” as part of a two-day international symposium on Multilingualism in International Organizations and in International Co-operation organized by the Study Group on Language at the United Nations and co-sponsored with Birbeck, University of London.

The following day, she led an opening discussion on “International Organizations at Work: The Linguistic Dimension” with a distinguished panel of United Nations representatives including Guillaume Dabouis, Head of Political Section, UN Delegation of the European Union; Mekki Ebdari, translator, Arabic Section, Documentation Division; Jean-Victor Nkolo, Office of the Special Adviser on Africa; Marie-Paule Roudil, Director, UNESCO Liasion Office in New York; and Russell Taylor, Chief of Publications and Editorial, Department of Information. The discussion covered a broad range of topics on the challenges in meeting the needs and demands of a multilingual constituency including digital gaps within and between countries, differential access to education across Africa, learning in the home language, the tension between official and working languages, the contested primacy of English within the UN, and the status of French as a language of diplomacy.

On May 14, Professor Jay Facciolo presented on a panel at PLI as part of a full day course entitled “Basics of Mutual Funds and Other Registered Investment Companies 2018.” 

Facciolo’s panel was entitled “The Evolution of an Industry: 75 Years of Retail Fund Regulation … and Counting” and was the introductory panel of the day.  The other panelists included major industry lawyers from four major asset management groups, outside compliance consultants, the Investment Company Institute (the major trade association), and law firms such as Ropes & Gray, Simpson Thacher, Eversheds, and Sidley Austin, among others.

On April 26, 2018, Professor Elayne E. Greenberg moderated a panel on the Economics of Dispute Resolution at Cravath’s 2018 Summit on Global Dispute Resolution. The distinguished panel included Deborah Miller, Vice President and Associate General Counsel of Oracle; Joseph P. Richburg, Vice President & Assistant General Counsel, Litigation of the CBS Corporation; Josel Daniel Amado, Partner of Miranda & Amado, Karin DeMassi, Partner of Cravath, Swaine & Moore, LLP and Christopher P. Bogart, CEO of Burford Capital.  

The panel and the audience engaged in a lively discussion about how to adopt an early settlement strategy, synchronize in house counsel’s and claims counsel’s efforts, shape an international arbitration, and strategically consider third party litigation funding.

Professor Elayne E. Greenberg’s latest Ethical Compass column, “Act Like a Lawyer, Talks Like a Lawyer . . . Non-lawyer Advocates Representing Parties in Dispute Resolution” appears in the Spring 2018 New York Dispute Resolution Lawyer. This column raises the ethical concerns of having increasing numbers of non-lawyer legal advocates (NARs) represent clients in the negotiations, mediation and arbitration of legal matters. The idea for this column was sparked by a conversation Professor Greenberg had with Professor Christine Lazarro about the proliferation of NARs firms representing public investors in FINRA securities arbitrations and mediations.

On May 5, 2018, Professor Christine Lazaro participated in a panel discussion at the PIABA mid-year meeting in Los Angeles. The panel was entitled: Protecting Seniors: Developing Rules, Regulations, and Policies Affecting Seniors’ Brokerage Accounts.  

The panelists discussed the actions taken by FINRA and the state securities regulators to help protect seniors and other vulnerable adults from financial exploitation. The panel was moderated by Joseph Fogel, an attorney in California. Judie Louie, in-house counsel at Wells Fargo Advisors, LLC and Kathy Adams, a mediator, participated on the panel as well.

Professor Lazaro also submitted an article, “Financial Exploitation of the Elderly: An Overview of Regulatory Action” for the written materials for the program.

On April 30, Professor John Q. Barrett delivered the Jewish Lawyers’ Association inaugural Steven J. Eisman Memorial Lecture at the Nassau County Bar Association in Mineola, New York. Professor Barrett spoke on “Nazis, Nuremberg, and the Rule of Law: Some Enduring Lessons for Lawyers Today.” Mr. Eisman, who was Nassau County Bar president at the time of his death in late 2015, was a St. John’s Law graduate and an accomplished lawyer on Long Island.

On May 2, Professor Barrett participated in a “Law Week” continuing legal education program, with U.S. District Court Chief Judge Frank P. Geraci, Jr. (W.D.N.Y.) and U.S. Magistrate Judge Marian W. Payson (W.D.N.Y.), at the Monroe County Bar Association in Rochester, New York. In the program, “From the WDNY to the Supreme Court: The History and Constitutional Importance of Three Cases,” Professor Barrett discussed United States v. Di Re (1948) and Warth v. Seldin (1975).

L-R: Emmelyn Logan-Baldwin (attorney for plaintiffs Robert Warth, et al. in Warth v. Seldin), Chief Judge Geraci, Magistrate Judge Payson, Tom Warth & Patricia Warth (children of Robert Warth), & Professor Barrett