Archive for October, 2019

October 24, 2019

Greenberg Presents at AALS ADR Conference

On October 4, Professor Elayne E. Greenberg presented her paper “Erasing Race in Plea Bargaining” at the 13th Annual AALS ADR Section Works-in-Progress Conference hosted by the UNLVBoyd School of Law and the Saltman Center for Conflict Resolution.   

Here is the Abstract:

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This paper prescribes debiasing reforms for the plea bargaining process to help mitigate the racialized presumption of guilt that deprives African American male defendants of their justice rights.

Despite our criminal justice system’s guarantees of “justice for all” and “innocent until proven guilty,”  African American male defendants know too well that these guarantees don’t apply to them. Even though this “presumption of innocence” is a legal right and a human right, the data shows that African American male defendants suffer a racialized presumption of guilt in every part of the criminal system, including in the plea bargaining process. Today, upwards of 97% of criminal cases are resolved by plea bargaining. However, because of the racialized presumption of guilt against African American male defendants,  African American male defendants who plea bargain in state criminal courts are more likely to be presumed guilty, even when factually innocent. Furthermore, those African American male defendants who are guilty of a crime and opt to plea bargain, are often penalized with harsher outcomes because of their race. The status quo must change.

This racialized presumption of guilt is anchored in our country’s deep, racially discriminatory roots that built a society, an economy and a criminal justice system on slavery. Even though we may explicitly reject and be appalled by our country’s historical discriminatory conduct, we may still internalize  as implicit biases the racially discriminatory messages that are communicated in the media and broader culture. These racially implicit biases also influence the prosecutors and defense attorneys who are the primary legal actors in plea bargaining. Thus, although prosecutors and defense attorneys many not be explicitly biased, they are still prone to unconsciously regard African American men as dangerous, aggressive, likely to use weapons and prone to criminality. Such implicit bias contaminates every aspect of the plea bargaining process from the evidence relied upon, the severity of the initial charges and the final sentencing agreement. This implicit bias infects defendants and prosecutors alike as well as the justice organizations that employ them.

This paper expands the scholarship about plea bargaining by “naming the elephant in the room” and tackling how to mitigate the implicit racial bias in plea bargaining. In doing so, the author integrates the work of cognitive behavioral psychologists, anti-racism educators, dispute system designers, negotiation scholars and criminal justice reformers and recommends organizational and individual debiasing strategies to erase race from plea bargaining. Combined, the recommendations will: provide legal actors involved in plea bargaining with the skills to manage their racialized implicit biases; establish a more deliberative plea bargaining process in which there is a sharing of objective information to minimize the reactive decision making that evokes implicit racial bias;  and  help implement procedural safeguards to check the prosecutorial discretion that may be applied in a racialized way. District attorneys’ offices, public defenders’ organizations and the prosecutors and defense attorneys that work within these organizations are the primary legal actors who  not only control plea bargaining, but also have the power to enact these prescribed reforms.

The ultimate goal of the proposed reforms is to ensure that African American male defendants reclaim their right to be “presumed innocent until proven guilty.”

October 22, 2019

Salomone Publishes Commentary on South African Constitutional Court’s Historic Ruling on Language

Professor Rosemary Salomone published a commentary on the South African Constitutional Court’s recent ruling in the case against Stellenbosch University, “Court Moves Beyond the Past in Favouring English,” in the October 19th issue of University World News.
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Rosemary Salomone

This is the last of a trilogy of cases that Professor Salomone has examined in which the Court has addressed language policies, favoring English over Afrikaans, adopted in the wake of student protests in 2015 and 2016 to “decolonialize” higher education and offer instruction in English, which black students view as the language of liberation and opportunity. Here she notes that over the course of the three decisions, the Court has shifted toward an increasingly inclusive and less politically charged multilingual narrative placing Afrikaans on a plane with other African languages, without forgetting the wrongs of the past. She further notes that, given the deep-seated tradition of Afrikaans at Stellenbosch and the role that Afrikaans played, both real and symbolic, in maintaining racial exclusion under apartheid, the Court’s decision diminishing Afrikaans’ present-day relevance is historic not just for the university, but for South Africa.
October 22, 2019

Krishnakumar Presents at USC, Seton Hall

On September 25, Professor Anita S. Krishnakumar presented her paper, Backdoor Purposivism, forthcoming in the Duke Law Journal, at a faculty workshop at Seton Hall Law School.  On October 17, she presented Backdoor Purposivism at a faculty workshop at the University of Southern California Law School.

Krishnakumar

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.

October 21, 2019

Cunningham Presents at University of Tennessee Law School

Associate Dean Larry Cunningham presented at the University of Tennessee College of Law on October 10, 2019.

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The topic of his presentation was, “Effective Programmatic Assessment … That is Respectful of Faculty Time.”  He described how law schools can implement the ABA’s assessment requirements in a manner that is effective, helps improve student learning, and is also efficient.

October 11, 2019

Joseph’s Book to be Published by Farrar, Straus & Giroux; Joseph Speaks at Loyola University Chicago

Professor Lawrence Joseph’s ninth book, A Certain Clarity: Selected Poems, will be published by Farrar, Straus and Giroux in March 2020.

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On September 20, 2019, he was a featured speaker in the Catholic Imagination Conference: The Future of the Catholic Literary Tradition, at Loyola University Chicago.

October 11, 2019

Duryea Publishes Chapter in the Routledge History of Human Rights

Professor Catherine Duryea‘s book chapter, “The Universality of Human Rights: Early NGO Practices in the Arab World,” was published last week in the Routledge History of Human Rights.

Here is the abstract:

Drawing on interviews as well as published material and organizational archives, this essay explores the practices of several Arab human rights NGOs in Palestine, Morocco, Kuwait, and Egypt from the late 1970s to the early 1990s.  catherineAll of the organizations engaged in a range of activities that are familiar to any human rights NGO, but they used international law and institutions in fundamentally different ways to pursue goals specific to their political context.  These divergences reflected domestic and regional political constraints as well as the preferences and beliefs of early activists. The organizations demonstrate how human rights became relevant throughout the Arab world and provide new insights into debates over the universality of human rights. Their place in Muslim-majority states positioned them as critical voices in the debate over the compatibility of religion and human rights. Their members’ calls for adherence to international law in countries with complex legacies of colonial interference speak to whether human rights are uniquely Western. And their continued existence in countries with egregious violations highlight the role of human rights when international law is not respected.

 

October 4, 2019

Movsesian Co-chairs Roundtable on Religious Liberty Cases, Speaks at Kings’ College, and Presents at Morningside Institute Conference

In September, Professor Mark Movsesian co-chaired the Center for Law and Religion’s roundtable discussion on recent religious liberty cases at the Supreme Court with US Circuit Judges Richard Sullivan and Kyle Duncan.

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Mark Movsesian

He also gave the annual Constitution Day address at The Kings’ College in Manhattan, on the Masterpiece Cakeshop case and the broader conflict between anti-discrimination laws and religious liberty. In his address, Movsesian discussed the cultural and political trends that drive that conflict and the likely outcome in the courts.

Finally, Professor Movsesian presented a paper at a conference on “Church and State in a Time of Crisis,” sponsored by the Morningside Institute. Professor Movsesian’s paper addressed a recent California bill requiring clergy members to report to state authorities information regarding suspected child abuse, including information clergy members obtain during confidential spiritual counseling.

October 2, 2019

Calabrese and Sovern Co-Author Comments on Proposed CFPB Debt Collection Rule for Consumer Law Professors

Professors Calabrese and Sovern co-authored comments, along with other legal academics, to the Consumer Financial Protection Bureau, on behalf of a group of 31 consumer law professors.  The comments address the Bureau’s proposed debt collection regulations.  These are the first agency regulations to implement the Fair Debt Collection Practices Act (FDCPA).

 

The regulations deal with significant changes in communication technology as well as in the debt collection industry that have occurred since the FDCPA was enacted in 1977.  The comments were also appended to testimony before the House Financial Services Committee in a hearing on debt collection on September 26.

October 2, 2019

Allen’s Article Published in Detroit Mercy Law Review

Professor Renee Allen‘s article, The “Pink Ghetto” Pipeline: Challenges and Opportunities for Women in Legal Education (with Alicia Jackson & DeShun Harris), has been published in the Detroit Mercy Law Review.  The article recently was featured on TaxProf Blog.

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Here is the abstract:

The demographics of law schools are changing and women make up the majority of law students. Yet, the demographics of many law faculties do not reflect these changing demographics with more men occupying faculty seats. In legal education, women predominately occupy skills positions, including legal writing, clinic, academic success, bar preparation, or library. According to a 2010 Association of American Law Schools survey, the percentage of female lecturers and instructors is so high that those positions are stereotypically female. The term coined for positions typically held by women is “pink ghetto.” In legal education, tenured and higher-ranked positions are held primarily by men, while women often enter legal education through non-tenured and non-faculty skills-based teaching pipelines. In a number of these positions, women experience challenges like poor pay, heavy workloads, and lower status such as by contract, nontenure, or at will. While many may view this as a challenge, looking at these positions solely as a “pink ghetto” diminishes the many contributions women have made to legal education through the skills faculty pipelines. Conversely, we miss the opportunity to examine how legal education has changed and how women have accepted the challenge of being on the front line of educating this new generation of learners while enthusiastically adopting the American Bar Association’s new standards for assessment and student learning. This article focuses on the changing gender demographics of legal education, legal education pipelines, and the role and status of women in higher education with an emphasis on legal education. The final section applies feminist pedagogy to address challenges, opportunities, and aspirations for women in legal education.

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