Archive for November, 2020

November 30, 2020

Baum Speaks at New York Law School

Professor Jennifer Baum, Director of the Child Advocacy Clinic, spoke at New York Law School last week on the role of the Attorney for the Child in Family Court and State Supreme Court proceedings. Prof. Baum addressed the ethics of substituting judgment for very young children, and she provided practice tips for interviewing and representing children and youth in juvenile delinquency proceedings. 

Jennifer Baum
Professor of Clinical Legal Education &
Director, Child Advocacy Clinic
November 11, 2020

Allen Presents Her Article

On October 23rd, Professor Renee Nicole Allen presented her paper, From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy, at a virtual workshop in the Theorizing Feminist Solidarity and Racial Justice in Academia series. A recording of her talk can be viewed here

On November 10th, Professor Allen spoke with UCLA law students about her paper as part of a Black Scholar’s Forum. 

From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy is forthcoming in the UCLA Law Review. 

Renee Nicole Allen
Assistant Professor of Legal Writing
November 11, 2020

Baum Honored by Children’s Law Center

On October 22nd, Professor Jennifer Baum was honored by the Children’s Law Center of New York for her volunteer work on an international child abduction case brought under the Hague Convention in the Eastern District of New York.  Professor Baum’s work on behalf of four of the six subject children resulted in the children remaining safely with their mother, who had brought them to New York after fleeing a cult in Guatemala.  The children ranged in age from six to 12.  Professor Baum provided litigation support and Hague Convention child abduction expertise to the Children’s Law Center’s representation of the children in Federal and State court proceedings.

Jennifer Baum
Professor of Clinical Legal Education &
Director, Child Advocacy Clinic
November 10, 2020

Krishnakumar Presents at William & Mary School of Law

On November 5th, Professor Anita Krishnakumar presented her paper Cracking the Whole Code Rule at a virtual faculty workshop at the William & Mary School of Law. Cracking the Whole Code Rule is forthcoming in the N.Y.U. Law Review. 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 judicial action is necessary to harmonize two related statutes with each other. 

Anita S. Krishnakumar
Mary C. Daly Professor of Law
November 9, 2020

Barrett Publishes Essay in New “Hamilton and the Law” Book

Professor John Q. Barrett is one of millions who know, love, and have learned lots from Lin-Manuel Miranda’s “Hamilton: An American Musical.”  And Barrett now is one of thirty-five leading scholars and lawyers whose essays were published last month in Hamilton and the Law: Reading Today’s Most Contentious Legal Issues through the Hit Musical, a collection edited by Professor Lisa A. Tucker and published in hardback and paperback by Cornell University Press.

Professor Barrett’s essay, “Some Alexander Hamilton, But Not So Much Hamilton, in the New Supreme Court,” is described in this abstract on SSRN:

This essay considers the possibility that Hamilton: An American Musical, the sensation that has captivated so many, plus its soundtrack that plays on in our heads and on our devices, will stir and influence United States Supreme Court justices as they interpret the U.S. Constitution.

Our Supreme Court justices have always been interested in the lives and the words of the Founding Fathers. For example, The Federalist essays of 1787-1788, most of them penned by Alexander Hamilton, have been cited in hundreds of Court decisions. So have other Founding-era materials, including many words from James Madison, the so-called Father of the Constitution. But as Justice Robert H. Jackson wrote in the 1952 Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), this judicial enterprise often is not illuminating—“a Hamilton may be matched against a Madison”; “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

When the musical Hamilton opened on Broadway in 2016, Hillary Clinton was on her way to being elected president. It was predictable that she would get to appoint new Supreme Court justices, and that they would be, as she is, inclined to read expansively the Constitution’s provisions defining national government powers. These newcomers would constitute a Supreme Court in the Hamilton era. They would see the musical, hear the songs, be stirred, and perhaps even quote from and cite to Hamilton.

U.S. politics took a different path. Yes, many of the justices have seen Hamilton. More liberal, nationalistic, Alexander Hamilton-admiring justices have praised it. More conservative justices have had less to say about it. In Supreme Court decisions through June 2019, there is not much trace of Hamiltonian—forefather or modern musical—influence.

For an American Lawyer Media interview with Professor Lisa Tucker of Drexel University, architect and editor of this fun and substantive new book, click here.

John Q. Barrett
Professor of Law

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