Archive for March, 2019

March 29, 2019

Warner Presents at INSOL Singapore Academics’ Colloquium

On April 2, Professor G. Ray Warner will present a paper analyzing the impact of the


G. Ray Warner

Model Law on Cross-Border Insolvency on the U.S. courts’ exercise of jurisdiction over chapter 11 cases involving non-US companies at the INSOL Academics’ Colloquium in Singapore.

March 28, 2019

Sheff’s Essay to be Published in the Seton Hall Law Review

Professor Jeremy Sheff’s new essay, I Choose, You Decide: Structural Tools for Supreme Court Legitimation, has been accepted for publication in the Seton Hall Law Review.


Jeremy Sheff

In light of increasing partisan polarization over Supreme Court appointments, Professor Sheff’s essay argues in favor of changing the way cases are selected for the Court’s discretionary appellate docket. Specifically, he proposes separating the authority to select cases for review from the authority to decide those cases. The essay makes the case that such a reform could both de-escalate the confirmation wars and help rehabilitate the Court’s increasingly threatened legitimacy without requiring a constitutional amendment.

Here is the abstract:

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus on reforms to the selection, appointment, or tenure of Justices. I propose a different, and perhaps complementary reform, which would not require constitutional amendment. I propose that the selection of a case for the Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case. The proposal leverages the insight of the “I cut, you choose” procedure for ensuring fair division—only here, it manifests as “I choose, you decide.” This proposal, rather than attempting to correct any supposed institutional deficiency that exacerbates the effects of partisanship, instead seeks to create a structure of checks and balances by pitting partisanship against partisanship.

March 26, 2019

Sharfman Publishes Essay in Harvard Forum on Corporate Governance and Financial Regulation

Professor Keith Sharfman‘s essay, Will Aruba Finish Off Appraisal Arbitrage and End Windfalls for Deal Dissenters? We Hope So, co-authored with William Carney, has been published in the Harvard Forum on Corporate Governance and Financial Regulation. 
Keith Sharfman
The essay concerns the Aruba appeal now pending in the Delaware Supreme Court (with oral argument scheduled for March 27).
March 26, 2019

Movsesian Presents at George Mason Conference

On March 22, Professor Mark Movsesian presented his article, “Masterpiece Cakeshop and the Future of Religious Freedom,” at a conference on “Religious Freedom and the Administrative State” at the  Center for the Study of the Administrative State at George Mason University’s Scalia Law School.


Mark Movsesian

A video of Professor Movsesian’s presentation, as well as a response panel, will appear at the Center’s website. Professor Movsesian’s article will appear in the current volume of the Harvard Journal of Law and Public Policy.

Here is the abstract:

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.

March 22, 2019

Barrett Lectures & Recent Op-Eds

Professor John Q. Barrett delivered the following lectures since last summer:

  • On October 5, 2018, he gave the Keynote Lecture, “Justice Jackson & Jehovah’s Witnesses: Barnette in Its Context, and in Jackson’s Life and Work,” at a symposium, “Barnette at 75,” at Florida International University College of Law in Miami, FL.  Video of this lecture, beginning with the Dean’s introduction of Professor Barrett, is  here online, starting at time counter reading 4:31:58.  jqb photo
  • On October 10, Professor Barrett spoke on “U.S. Supreme Court, October Term 2017:  Justice Kennedy Built Two Ramps,” at a Federal Bar Association program at the U.S. Courthouse in Central Islip, NY.
  • On October 18, Professor Barrett delivered a principal lecture, “Justice Robert Jackson and the Nuremberg Trials,” at the 74th Judicial Conference of the United States Court of Appeals for the Third Circuit, held in Wilmington, DE.  Other lecturers at the conference included U.S. Supreme Court Justice Samuel Alito, former Vice President Joseph Biden, U.S. Deputy Attorney General Rod Rosenstein, and Professor and former NAACP Legal Defense Fund Director-Counsel Theodore Shaw.
  • On October 30, Professor Barrett spoke on “U.S. Supreme Court, October Term 2017, and A Look Ahead,” at the Queens County Bar Association in Queens, NY.  His fellow lecturer was attorney Paul Shechtman, partner in Bracewell LLP.
  • On December 5, Professor Barrett delivered a Grand Rounds Lecture, “Robert H. Jackson on Immigration, Citizens, Power & Liberty,” at the City University of New York (CUNY) School of Public Health in Manhattan.
  • On February 14, 2019, Professor Barrett delivered a lecture, “American Gifts (1940 & 2019),” at a U.S. Citizenship Naturalization Ceremony at the United States Bankruptcy Court for the District of New Jersey, in Trenton.  His fellow lecturer was New Jersey Attorney General Gurbir Grewal.

Professor Barrett also recently published these op-ed articles:

Cohen’s Sentencing Clears A Path For Congress To Uncover The Truth, Washington Post, Dec. 13, 2018

 How Congress Can Stop Trump’s Emergency, Washington Post, Jan. 9, 2019 (online)

Milbank Loses Hope … And Hadley and Tweed and McCloyNew York Law Journal, Mar. 5, 2019, p. 6

March 21, 2019

Klonick Makes Media Appearances on CNN, NPR, NY Times, the Washington Post, and More

During March, Professor Kate Klonick made several media appearances to discuss a privacy by obscurity exercise she designed for her Information Privacy seminar.  The optional exercise directed students as follows:  At some point over spring break, when in a public place, using only Google see if you can de-anonymize someone based on things they say loudly enough for lots of others to hear and/or things that are displayed on their clothing or bags.
On March 16, Professor Klonick appeared on CNN to discuss the exercise with host Michael Smerconish in a segment titled, “Your privacy at risk in everyday life.”
On March 10, Professor Klonick discussed the exercise with Francesca Paris in an NPR.COM segment titled, “Googling Strangers: One Professor’s Lessons on Privacy in Public Space;” on March 9 she discussed the exercise in an NPR: Weekend Edition titled, “How Easy It Is to Identify Strangers with Google” (with Scott Simon); and on March 6, she discussed the exercise with Cary Doctorow in a post titled, “A brilliant, simple exercise to teach privacy fundamentals,” that appeared on BoingBoing.
During January and February, Professor Klonick discussed Facebook’s speech regulation and her research with several news publications:
On February 18, Professor Klonick discussed the proposed creation of Facebook’s “Supreme Court” in an article titled, “Can Mark Zuckerberg’s ‘Supreme Court’ End Facebook’s Era of Absolute Monarchy?,” that appeared in The Telegraph.
On February 5, her research was quoted in a Washington Post article titled, “Facebook Has Declared Sovereignty.
On February 14, Professor Klonick’s research was quoted in an article on Axios titled, “Facebook’s constitutional moment.”
On January 25, she was a featured guest on Denise Howell’s This Week in Law: Videocast.
On January 10, she was quoted as an expert in a New York Times article titled, “How Far Should Facebook Go in Regulating Users’ Speech?
In addition, on March 8, Professor Klonick published an Op-Ed in the New York Times titled, “A ‘Creepy’ Assignment: Pay Attention to What Strangers Reveal in Public.”
March 20, 2019

Krishnakumar’s Article to be Published in the Duke Law Journal

Professor Anita S. Krishnakumar‘s article, Backdoor Purposivism, has been accepted for publication in the Duke Law Journal.


Here is the abstract:

It has become standard, among statutory interpretation commentators, to declare that “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court—including those considered purposivists—pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined compared to its heydey in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute—or, alternately, using purpose as a threshold consideration in determining whether a statute is ambiguous in the first place.

This Article breaks from the conventional “purposivism is dead or dying” wisdom in two important ways. First, it argues, based on empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not. Second, and perhaps more importantly, the Court’s textualist Justices quietly have been engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress in many cases. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent. The Article suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest—but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text-focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit, in order to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.

March 19, 2019

Klonick Presents at Stanford, UConn, Temple, UCLA, Colorado, Loyola-LA, Maryland and American Law Schools

During the month of March, Professor Kate Klonick presented her research at the Data Care Protection Act Workshop at Stanford Law School and discussed the Digital Democracy Deficit at the Nebrooklyn: Junior Law and Tech Scholars Workshop at the University of Connecticut Law School.


During the month of February, Professor Klonick served as a paper discussant at Temple Law School’s International Law Colloquium: Speech Across Borders.  She also presented her paper, Facebook v. Sullivan: Building Constitutional Law for Online Speech, co-authored with Thomas Kadri, at a program titled Is Social Media Broken? And Can We Fix It? at UCLA Law School, at a conference titled Internet Platforms’ Rising Dominance, Evolving Governance at the University of Colorado Law School, and at a faculty workshop at Loyola University Los Angeles.  Also in February, Professor Klonick spoke at a program titled Truth Decay: Deep Fakes and the Implications for Privacy, National Security and Democracy at the University of Maryland Law School.

In January 2019, Professor Klonick spoke at a Holocaust Remembrance Day event sponsored by TWITTER NYC, and presented her Facebook v. Sullivan paper at a faculty workshop at Washington Law School at American University.

March 19, 2019

Subotnik’s Article to Be Published in the Notre Dame Law Review

Professor Eva Subotnik’s article, Existential Copyright and Professional Photography, co-authored with Professor Jessica Silbey (Northeastern) and Professor Peter DiCola (Northwestern), will be published in the Notre Dame Law Review.  Their article is a qualitative study of how professional photographers conceptualize and make use of copyright as part of their business models and in other ways, too.

Eva Subotnik

Here is the abstract:

Intellectual property law has intended benefits, but it also carries certain costs—by design. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its kind study, we conducted 32 in-depth, qualitative interviews of photographers about how law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More importantly, our data allow us to expand the set of possible justifications for intellectual property. Contrary to accepted wisdom, we find that copyright provides photographers with economic leverage in upfront negotiations with clients but not much benefit in anti-copying protection afterwards. Beyond that, copyright also serves as part of photographers’ multifaceted sense of professionalism to protect the integrity of their art and business. Evaluating the desirability of these unrecognized and surprising functions of copyright is separate from identifying them in creators’ accounts. But we argue that the real-world functions of copyright are better candidates for justification and better subjects for policy discussion than chalkboard theories. In this way, our study of photographers moves the long-standing debate over intellectual property law’s purpose to a new and more informed place.

March 19, 2019

Klonick’s Article to be Published in the Southern California Law Review

Professor Kate Klonick‘s article, Facebook v. Sullivan: Building Constitutional Law for Online Speech, co-authored with Thomas Kadri, has been accepted for publication in the Southern California Law Review.


Here is the abstract:

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms aren’t bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression — particularly the entangled concepts of “public figures” and “newsworthiness.”

In this article, we offer the first empirical analysis of how judges and content moderators have used these two concepts to shape the boundaries of free speech. We first introduce the legal doctrines developed by the “Old Governors,” exploring how courts have shaped the constitutional concepts of public figures and newsworthiness in the face of tort claims for defamation, invasion of privacy, and intentional infliction of emotional distress. We then turn to the “New Governors” and examine how Facebook’s content-moderation system channeled elements of the courts’ reasoning for imposing First Amendment limits on tort liability.

By exposing the similarities and differences between how the two systems have understood these concepts, we offer lessons for both courts and platforms as they confront new challenges posed by online speech. We expose the pitfalls of using algorithms to identify public figures; we explore the diminished utility of setting rules based on voluntary involvement in public debate; and we analyze the dangers of ad-hoc and unaccountable newsworthiness determinations. Both courts and platforms must adapt to the new speech ecosystem that companies like Facebook have helped create, particularly the way that viral content has shifted our normative intuitions about who deserves harsher rules in disputes about harmful speech, be it in constitutional law or content moderation.

Finally, we explore what this comparison reveals about the structural role platforms play in today’s speech ecosystem and how it illuminates new solutions. We argue that these platforms act as legislature, executive, judiciary, and press — but without any separation of powers to establish checks and balances. With these realities exposed, we contend that platforms must separate their powers and create institutions like the Supreme Court to provide transparent decisions and consistent rationales on how concepts related to newsworthiness and public figures are applied. This will give users some representation and due process in the new, private system regulating their expression. Ultimately, platforms cannot rely on global norms about free speech — which do not exist — and must instead make hard choices about which values they want to uphold through their content-moderation rules. We conclude that platforms should adopt constitution-like charters to guide the independent institutions that should oversee them.

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