St. John's University Law Faculty Blog

Professor Sheldon Evans‘ paper, Categorical Nonuniformity, has been accepted for presentation at the Stanford/Harvard/Yale Junior Faculty Forum this year.  The Forum, which will take place virtually, will occur over the summer.  Categorical Nonuniformity is forthcoming 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 federal system of government.

Jeff Sovern

Consumer cases may turn on the fine print in a company’s terms of service, said Jeff Sovern, who teaches consumer protection law at St. John’s University School of Law.

Some businesses may have put language in their contract to guard against refunds during a pandemic, and customers — who rarely read the terms and conditions anyway — may not have noticed it, he said.

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In all consumer cases, businesses face a court of law, but also the court of popular opinion, Sovern noted.

A business that denies a refund might lose a customer for the rest of the customer’s life. Not to mention the customer’s family, friends, and in these days of social media, perhaps a lot of other folks too.” A similar dynamic could be at play for schools, he added. “Colleges, for example, want graduates to contribute and so might want to give a refund on the theory that denying the refund would be penny wise and pound foolish.”