St. John's University Law Faculty Blog

Professor Lawrence Joseph’s book A Certain Clarity: Selected Poems was reviewed in The New York Times Book Review on March 17. In “Thinking About Empire and Economy, With a Lawyer’s Mind and a Poet’s Words,” Paul Franz writes:  “An intensely realized, intimate epic of modern American life . . . A Certain Clarity is a major work of American art.”

A Certain Clarity was also reviewed in the March 19 issue of the London Review of Books by Michael Hofmann, who, in “On Lawrence Joseph,” writes: “Joseph has written five books of his stark and beautiful poems . . . Almost uniquely among contemporary American poets, Joseph doesn’t retail privities, doesn’t chase the miniscule scraps of sublimity left to us, doesn’t return to his literal or figurative cabin in the woods.”

Also, a feature on Joseph’s life and work by Anthony Domestico appeared in Commonweal on March 17. In “The Inexhaustible Poetry of Lawrence Joseph,” Domestico writes: “Since 1983, Joseph has been publishing books of poetry that, in their formal control and moral witness, match anything published in the past half-century . . . The range of Joseph’s writing  in this book, and throughout his career, is awesome.”

Professor Michael Perino‘s article, Real Insider Trading, has been accepted for publication in the Washington & Lee Law Review.  The article presents novel empirical research about how insider trading is enforced on the ground.

Below is the abstract::

In popular rhetoric, insider trading cases are about leveling the playing field between elite market participants and ordinary investors. Academic critiques vary. Some depict an untethered insider trading doctrine that enforcers use to expand their power and enhance their discretion. Others see enforcers beset with agency cost problems who bring predominantly simple, easily resolved cases to create the veneer of vigorous enforcement. This debate has, to this point, been based mostly on anecdote and conjecture rather than empirical evidence. This article addresses that gap by collecting extensive data on 465 individual defendants in civil, criminal, and administrative actions to assess how enforcers operationalize insider trading doctrine. The cases enforcement authorities bring are shaped by a complex and cross-cutting set of institutional and individual incentives, cognitive biases, legal requirements, the history of failed enforcement efforts, and the way in which the agency and the self-regulatory organizations deploy their investigatory resources. SEC enforcement is dominated by small stakes, opportunistic trading by mid-level employees and their friends and family, most often involving M&A transactions. Those cases settle quickly, half within 30 days of filing. Criminal enforcement is generally reserved for more serious cases, measured by, among other things, the type of defendant, the size of the insider trading network, and the profits earned. In both settings, there is little evidence that enforcers are systematically stretching the boundaries of insider trading doctrine.

Professor Anita S. Krishnakumar‘s article, Cracking the Whole Code Rule, has been accepted for publication in the NYU Law Review.  The article provides a part-empirical, part-doctrinal analysis of how the U.S. Supreme Court uses cross-statute comparisons to determine the meaning of the statute at issue in a case.

Here is the abstract:

Over the past three decades, since Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground. One prominent article on the topic, published twenty years ago, criticized the Court for treating statutes enacted at different times by different legislators as though they were enacted by one, never-changing Congress. Other scholars have touched on the topic in passing, but no one has systematically studied how judges employ this interpretive tool.

This article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of the full universe of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half terms. The article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions. The article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons. For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third of the cases compare statutes that regulate entirely unrelated subject areas. Moreover, many of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.

The article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural drafting choices. The article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise. It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where it is necessary to harmonize two related statutes with each other.

Professor Sheldon Evans’ article, Categorical Nonuniformity, has been accepted for publication in the Columbia Law Review.

Here is the abstract:

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, however, the categorical approach produces the opposite. By examining the categorical approach in the criminal sentencing and immigration contexts, this Article shows that relying on state criminal elements has produced nonuniformity due to the variations of state law.

This Article examines and proposes remedies for the categorical approach’s nonuniformity problem. Although the Supreme Court has itself attempted to resolve this problem by deciding nearly twenty cases in the past twelve years with even more cases on its current docket, nonuniformity prevails. And while scholars are increasingly weighing in, this Article contributes to the literature by applying different theories of uniformity that juxtaposes the ideals of nationwide uniformity with the potential benefits of nonuniformity. This novel analysis supports at least two paths forward. First, if uniformity is to be prioritized, the elements-based categorical approach must be fundamentally redesigned to properly accomplish this goal. But given the difficulty of achieving genuine nationwide uniformity, keeping the elements-based categorical approach may be justified, albeit under a different theoretical framework that acknowledges the benefits of nonuniformity among states within a federalist system of government.

On Friday, February 28, Professor Anita S. Krishnakumar presented her work in progress, “Inferring Meaning from Statutory History,” as part of an early stages projects panel at the biennial Legislation Roundtable held at Yale Law School. 

The Roundtable is a conference that brings together Legislation scholars from across the country to share and critique each others’ works-in-progress.  Last week’s event marked the Roundtable’s 10th Anniversary; in 2016, Professor Krishnakumar co-hosted the Roundtable with Professor Kate Shaw of Cardozo Law School.

On February 28, Professor Jennifer Baum presented on a panel of child welfare and immigration experts at New York Law School’s Asylum and Immigration Law Conference.

Jennifer Baum