Archive for June, 2021

June 30, 2021

Salomone Presents at 27th International Conference of Europeanists

Professor Rosemary Salomone recently presented a paper on “The Ties That Bind: Is English Reshaping Identity and Belonging in Europe?” at the 27th International Conference of Europeanists hosted by the Council for European Studies. Developing themes explored in The Rise of English: Global Politics and the Power of Language (Oxford University Press, forthcoming), the paper examines whether the spread of English as the dominant lingua franca is reshaping national identity and feelings of belonging among western Europeans. It specifically looks at France, Italy, and the Netherlands, and the discourse surrounding legal and policy debates over English-taught university programs, as a lens for exploring attitudes toward the national language vis à vis English as they reflect each country’s distinct history and politics. It further refutes the reality of the linguistically homogeneous nation-state and the time-worn notion of “one nation-one language” in view of mass migration, globalization, modern technology, high job mobility, and the push to develop a European identity based in multilingualism. The paper concludes that, under the weight of these competing forces, what it means to be French, Italian, or Dutch is shifting along different axes where the national language is one aspect or measure of belonging. Though it is reasonable to assume that English is diminishing the use of national languages, albeit in different degrees, the precise impact of English on national identity per se in each country remains a far more complex question.

Rosemary Salomone
Kenneth Wang Professor of Law
June 29, 2021

Warner Article to be Published in European Insolvency & Restructuring Journal

Professor Ray Warner’s article “Enterprise Group Restructuring: Dutch Options and United States Enforcement” (co-authored with Dutch Professor Dr. P.M. (Michael) Veder) has been accepted for publication in the peer-reviewed European Insolvency & Restructuring Journal. The article explores whether corporate groups comprised of multiple affiliates that are located in different jurisdictions can use the newly enacted Dutch scheme legislation to restructure the jointly owed debt of multiple enterprise group members.

Here is the abstract of the article:

On 1 January 2021 the Dutch Wet Homologatie Onderhands Akoord, also referred to as the Dutch scheme, entered into force.  The Dutch scheme represents a robust restructuring framework that incorporates many of the main restructuring concepts from both the English scheme of arrangement and US chapter 11. It also adds a few new restructuring tools that will make it easier to restructure enterprise group debt by expressly providing that a restructuring plan may include the release of group guarantees and by adopting liberal jurisdictional rules that should permit proceedings to be opened in the Netherlands for all members of an enterprise group. This paper analyses the recognition and enforcement in the United States of restructuring plans adopted and confirmed in the Netherlands under the new Dutch scheme legislation, with a particular focus on the release of group guarantees. Our conclusion is that the US chapter 15 recognition and enforcement rules are very liberal and should provide little difficulty in obtaining recognition and enforcement of group restructuring plans. The very flexible US rules on COMI may result in the US courts treating the Netherlands as the COMI of all group members, thereby making the proceedings involving the non-Dutch group members foreign main proceedings. But even absent a Netherlands COMI, a Dutch scheme and its affiliate release provisions could be enforced for the benefit of all group members in a chapter 15 proceeding.

G. Ray Warner
Professor of Law
June 17, 2021

Roberts Leads Prior Conviction Impeachment Discussion at AALS

The AALS has selected a discussion group co-created by Professor Anna Roberts for the 2022 AALS Annual Meeting, which will be held virtually, and which will have the theme of “Freedom, Equality, and the Common Good.”

The discussion group is entitled “Critical Evidence Reform: How Do we Change Prior Conviction Impeachment in the U.S.?”

Confirmed participants include co-organizer Julia Simon-Kerr, John Blume, Bennett Capers, Montré Carodine, Jasmine Gonzales Rose, and Lisa Kern Griffin.

The proposal described the session’s focus as follows:

This discussion group will build on the momentum for reform of various facets of the criminal law to focus attention on the problem of prior conviction impeachment. Evidence law in almost every U.S. jurisdiction now permits witnesses’ prior convictions to be introduced as evidence in order to impeach their credibility. This practice of impeachment by prior conviction has been critiqued on many grounds, many of which are relevant to this year’s theme. Freedom is implicated by the use of convictions to bring about other convictions, often via improper means. Equality is implicated by the way in which longstanding biases along lines of race, in particular, are perpetuated. And the common good is implicated, because of this practice’s detachment from truth-seeking, and its tendency to chill essential testimony from defendants. The session aims to bring together scholars, practitioners and judges to continue efforts begun in early 2021 to organize around this issue and to think systematically about the way forward. How might we bring about long-awaited change in this area? We hope for a broad conversation among the participants and audience-members that will encompass aspects of federal and state practice in both criminal and civil contexts, and that will strengthen a concentrated effort at reform.

Anna Roberts
Professor of Law
June 10, 2021

Boyle Publishes in Special Edition of Peer-Reviewed Journal

Professor Robin Boyle published an article in a special edition of the International Journal of Coercion, Abuse, and Manipulation, a peer-reviewed journal. The issue focused on NXIVM and Scientology.  

Professor Boyle’s article is titled “Preventing Predatory Alienation by High-Control Groups: The Application of Human Trafficking Laws to Groups Popularly Known as Cults, & Proposed Changes to Laws Regarding Federal Immigration, State Child Marriage, & Undue Influence” (Vol. 1, Issue 2, June 2021).

In the article, Professor Boyle summarizes significant legal development in the United States. First, she highlights that the conviction obtained in the case of United States v. Raniere (E.D.N.Y.) set precedent for future criminal prosecutions against cult-like organizations committing human trafficking and other crimes. Second, Professor Boyle addresses statutory and court-imposed hurdles for asylum-seekers escaping cults from their countries-of-origin. Third, she highlights state statutes that have raised the minimum age for marriage, reducing the number of child brides who are often pressured by cults and high-control groups. Fourth, she advocates reducing the evidentiary burden of proving mental infirmity of the plaintiff in undue influence cases and focusing more on the harm caused by the defendant. Fifth, she brings attention to a bill pending in the New Jersey Legislature, the Predatory Alienation Bill, calling for ongoing public-awareness campaigns, alienation counseling, and other remedies.

The issue is available here.  

Professor Boyle presented developing aspects of this paper at the International Cultic Studies Association’s annual conferences held in Philadelphia, PA (2018) and in Manchester, England (2019); at the Harvard Medical School, Program in Psychiatry & the Law, a think-tank in Boston, MA (2019); and at the St. John’s Law School Faculty Retreat (2020).

Robin Boyle
Professor of Legal Writing

June 9, 2021

Sharfman’s Paper on Corporate Appraisal Featured on Bainbridge

Professor Keith Sharfman, a nationally recognized expert on valuation in corporate appraisal disputes and other legal contexts, has had a recently posted paper featured on Bainbridge, a widely read corporate law blog by UCLA corporate law scholar Stephen Bainbridge, which reviews the piece and describes it as an “[i]mportant new article.”

The paper, “The Exit Theory of Judicial Appraisal,” co-authored with Emory University corporate law scholar William J. Carney, builds on the authors’ prior work critiquing the “discretionary valuation” approach by which corporate valuation disputes are usually resolved. That approach tends to produce arbitrary and unpredictable valuation outcomes that encourage litigation and hinder settlement. Carney and Sharfman trace the history of the appraisal remedy and find that it was originally designed merely to ensure that minority shareholders could dissent and exit from a deal they did not like but not to guarantee that they would receive a fair (or even any) share of deal value. The paper further demonstrates that this “Exit Theory” objective is adequately protected by the extant private arrangements and fiduciary duty doctrines that are commonly utilized in current corporate law and practice.

The Bainbridge post is available here.

The full paper and abstract by Carney & Sharfman are available here.

Keith Sharfman
Professor of Law

June 2, 2021

Duryea Completes PhD and Presents Research at Workshop, Podcast

Professor Catherine Baylin Duryea recently successfully defended her dissertation, Practicing Human Rights in the Arab World: International Law in 20th Century Advocacy, and has fulfilled all the requirements for her PhD from the History Department at Stanford University. An article based on two chapters of her dissertation is forthcoming in the Berkeley Journal of International Law (Spring 2022). Professor Duryea presented a draft of the article at the Albany School of Law faculty workshop series and guest lectured on the topic at the North Carolina State History Department. Her dissertation abstract is below:

This dissertation explores how several Arab NGOs in Morocco, Palestine, Egypt and Kuwait practiced human rights from the late 1970s to the early 1990s. Drawing on institutional archives and interviews, it argues that these organizations provide new insights into the history of human rights both regionally and internationally. Located in a region battered by colonialism, foreign exploitation, and domestic autocracy, they are a valuable entry-point for considering the universality of rights and the extent to which Cold War politics shaped grassroots advocacy. The division between political and civil rights, and economic, cultural and social rights—so salient on the international level—was of minimal importance in shaping human rights advocacy on the ground. Instead, NGOs embraced those rights which most directly spoke to their particular political challenges and prioritized the most egregious state practices. Human rights activists found synergy between rights and nationalism, Socialism, democracy, and constitutional monarchy. Rights were not a single paradigm for how to organize political life, but part of several different visions that arose in response to the aftermath of the loss of the 1967 war with Israel. The 1970s and 1980s were period of both continuity, as advocates drew on the existing content of recent international treaties, and innovation, as they transformed the law from a text to a shared practice of resistance. 

Additionally, Professor Duryea’s ongoing research into the Emergency Court of Appeals, a specialized price court during WW2, was featured on a recent episode of the podcast Tech Refactored out of the Nebraska Governance and Technology Center. She discussed how the structure of the court and its exclusive jurisdiction over disputes arising out of price control ensured that judicial review of this massive regulatory system would be friendly towards regulators. The episode is available here.

Catherine Baylin Duryea
Assistant Professor of Law
June 1, 2021

Salomone Moderates at Princeton Symposium, and More

Professor Rosemary Salomone recently moderated a panel discussion on “Education” as part of the Language and Migration: Experience and Memory symposium hosted by Princeton University with the Study Group on Language and the United Nations, of which she is a member. She also was a guest speaker in an international seminar series on Language Policy and Practices in the Global North and South organized by Leiden University in the Netherlands. Her presentation, “In Search of Transformative Justice: The South African Constitutional Court and the Right to Education in the Language of One’s Choice,” examined two decisions upholding university language policies favoring instruction in English over Afrikaans and the implications for moving the country toward the Constitution’s promise of transformation and redress. In addition, she was invited by the National Coalition of Girls’ Schools to lead a discussion with NCGS Directors on legal updates including the Office for Civil Rights’ recently announced comprehensive review of Title IX regulations, as part of implementing President Biden’s March 8th Executive Order on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity

Rosemary Salomone
Kenneth Wang Professor of Law
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