Archive for ‘In Print’

May 29, 2016

DeGirolami’s Essay Published in Illinois Law Review Online Symposium

Professor Marc O. DeGirolami’s essay, Substantial Burdens Imply Central Beliefs, has been marc dpublished by the University of Illinois Law Review Online in its symposium on “substantial burdens” and religious free exercise. Here is the abstract.

Any society that is open to religious accommodation will want to know about the quality of the burden its laws impose on religious belief and exercise. This short essay reflects on the nature of that inquiry. It argues that to speak of a substantial burden on religion is by implication to understand religion as constituted by a system, within which certain beliefs and exercises occupy different positions of relative importance or centrality.


April 18, 2016

Cunningham Lectures and Writes on Speedy Trial Right

Associate Academic Dean and Professor of Legal Writing Larry Cunningham delivered a


Larry Cunningham

CLE lecture, “The Failure of CPL § 30.30,” to the Nassau County Criminal Courts Bar Association on April 7, 2016.  He also had a letter to the editor published in the New York Law Journal on the practice of prosecutors announcing their readiness for trial at Criminal Court arraignments.  He recently testified before the New York City Council Committee on Courts and Legal Services on delays in the New York City Criminal Court.  At St. John’s, Cunningham teaches Appellate Advocacy, Criminal Procedure, and other courses.  

April 5, 2016

Barrett’s Chapter in New Book on Supreme Court Justices & Law Clerks

John Barrett

John Barrett

Professor John Q. Barrett’s essay, “No College, No Prior Clerkship: How Jim Marsh Became Justice Jackson’s Law Clerk,” is a chapter in the book Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and their Justices (University of Virginia Press, Todd C. Peppers & Clare Cushman, eds., 2015).

Barrett’s chapter (abstract here) tells how Justice Robert H. Jackson, after hiring top Harvard Law School graduates as his first three law clerks, in 1947 improbably hired James M. Marsh, a night school graduate of Temple Law School who had never attended college or clerked for another judge.

In his Foreword to the book, Justice John Paul Stevens notes his friendship with Jim Marsh—Stevens was a law clerk to Justice Wiley Rutledge while Marsh was clerking for Justice Jackson.

In the Spring 2016 issue of Temple Esq., its law alumni magazine, the lead story reports on Professor Barrett’s chapter on Jim Marsh.  Tony Mauro, writing in the National Law Journal about this new book, also highlighted Barrett’s chapter.

Professor Barrett is biographer of Justice Robert H. Jackson and writer of The Jackson List.

April 4, 2016

Subotnik’s Article To Be Published by Washington Law Review

Professor Eva Subotnik’s article, “Artistic Control After Death,” has been accepted for evapublication by the Washington Law Review. Here is the abstract:

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Looked at through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of literature, art, and music is a fundamentally troubling notion. This article evaluates instructions given with respect to authorial works against the backdrop of the laws and policies that govern bequests more generally. In particular, it considers the enforceability of attempted artistic control through the imposition of a fiduciary duty. In balancing the competing interests, this article considers the demands of both state trust laws and federal copyright policy. In the end, the article argues that authorial instructions must yield to the needs of the living. Such a view requires that, to the greatest extent possible, some living person(s) be authorized to decide how works of authorship are used—even if that means overriding artistic control by the dead.

March 31, 2016

Krishnakumar’s Article to be Published by University of Chicago Law Review

Professor Anita Krishnakumar’s article, Reconsidering Substantive Canons, was accepted foranita publication by The University of Chicago Law Review.  Here is the abstract:

This Article provides the first empirical study of the Roberts Court’s use of substantive canons in statutory interpretation cases.  Based on data from 296 cases, the Article argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court.  Substantive canons—e.g., the rule of lenity, the avoidance canon, the presumption against extraterritorial application of domestic laws—have long been criticized as undemocratic judge-made rules that defeat congressional intent, enable interpreters to massage different meanings out of the same text, and make statutory interpretation unpredictable.  Scholars have bemoaned the amount of work that substantive canons perform in statutory interpretation cases and several have charged that textualist judges in particular overuse such canons.  But virtually all of these critiques have occurred in the absence of empirical evidence about how judges invoke substantive canons in practice.

This Article reconsiders the substantive canons in light of new data collected from the Roberts Court.  The data show that, contrary to the conventional wisdom, substantive canons are infrequently invoked on the modern Court—and even when invoked, they rarely play an outcome-determinative role in the Court’s statutory constructions.  Perhaps most surprisingly, textualist Justices—including Justice Scalia—rarely invoke substantive canons in the opinions they author, and do so less often than most of their purposivist counterparts.  Moreover, contrary to the conventional view that substantive canons empower judges to read their personal policy preferences into statutes, the Court’s conservative Justices have employed substantive canons to support liberal case outcomes as often, or nearly as often, as they have employed such canons to support conservative outcomes. Further, doctrinal analysis shows that the Roberts Court repeatedly has used substantive canons to honor, rather than frustrate, congressional intent.

The Article also challenge scholars’ gloomy warnings that Justices in the modern, textualism-influenced era have replaced legislative history with substantive canons as the go-to resource for deciphering ambiguous statutory text.  Rather, the data from the Roberts Court show that most of the Justices referenced legislative history at higher rates than they referenced substantive canons.  Moreover, the Court’s own precedents—rather than substantive canons or legislative history—seem to be the unsung gap-filling mechanisms that the Justices turn to when confronted with unclear statutory text.  After reporting the data, the Article discusses the implications of its findings for current debates in statutory interpretation, arguing that statutory interpretation theory needs to pay less attention to substantive canons and more attention to how the Court employs precedents when construing statutes.

March 14, 2016

DeGirolami’s Chapter Published in Volume on Religion and Equality

Professor Marc DeGirolami has published a chapter in The Social Equality of Religion or Marc DeGirolamiBelief, edited by Alan Carling and released by Palgrave Macmillan later this month. DeGirolami’s chapter is titled, “The Bloating of the Constitution: Equality and the U.S. Establishment Clause.” Here are the first few lines:

The US Establishment Clause is in disorder. There are currently at least six different approaches to interpreting the ‘establishment’ component of the First Amendment injunction that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” (US Constitution, Amendment 1). Tests of church-state separation, non-coercion, secularity, historical practice, non-endorsement and neutrality all have been used by the Supreme Court at one time or another across a broad panoply of cases. Sometimes two or more of these tests have been squeezed together within a single case, with implied reassurances that the result does not really depend upon the test anyway. At levels below the Supreme Court, this sort of doctrinal bricolage is often only prudent self-protective practice by judges compelled by the Court’s opacity to hedge their bets.

I have argued in other work that these doctrinal confusions are in part the result of the Court’s propensity to elevate a single value to master status in evaluating Establishment Clause controversies (DeGirolami 2013). Dependence on equality or neutrality or separationism as the preeminent constitutional touchstone in one case is felt by the Court to be inadequate or incomplete in a second or third; additional tests are thus cobbled together to accommodate what are perceived in subsequent cases to be distinctive circumstances. Single-value theories of the Establishment Clause misconstrue the conflicts at stake by leveling them – compressing them so as to be capable of processing through the filter of the selected value. Call this phenomenon constitutional flattening. One result of constitutional flattening is the multiplication of Establishment Clause theories to remedy the practical deficiencies in any one of them as they are applied case to case.

This Chapter explores a different side effect of monistic approaches to the Establishment Clause: constitutional bloating – the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability and indeterminacy of meaning. Merely by recurring to or invoking the selected value – always one with vague but deep rhetorical appeal – courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.

The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons: first, equality is the overriding legal value of our age – the defining constitutional issue of our time. The rhetorical power of equality is devastating, eliciting in its most ardent adherents something approaching militant zeal. As Steven Smith has put it, “equality is a juggernaut that overwhelms pundits, politicians, and professors, and threatens to flatten individuals or institutions that dare stand up against it” (Smith 2014). Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent, and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of ‘concern’ or ‘respect’ for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.

March 14, 2016

Salomone on the Rise of Global English

Professor Rosemary Salomone has posted her essay, The Rise of Global English, Challenges for


Rosemary Salomone

English-Medium Instruction and Language Rights. Here is the abstract:

This essay examines the spread of English as the dominant lingua franca world- wide, its educational impact on language rights, and the underlying tension between globalization and national identity. Focused on Western Europe, but with broader implications, it draws on overlapping controversies in May 2013 in France and Italy over the use of English as the medium of university instruction. It uses the public debates surrounding these events to critically explore the legal, cultural and pedagogical issues endemic to English medium instruction, but also to address deeper tensions between globalization and linguistic diversity within Europe. In doing so, it further considers the implications of global English for the rights of linguistic minority children and for European policies promoting multilingualism or “mother tongue plus two” in the interests of European integration and job mobility. Though recognizing the utility of English as a common vehicle for global communication, the paper concludes that the “rise of global English” is not a zero-sum game, but rather demands measured strategies that reasonably balance the competing interests at stake and maintain a sense of proportionality.

March 9, 2016

DeGirolami on Wolterstorff’s View of Punishment in “The Mighty and the Almighty”

Professor Marc DeGirolami has posted this little paper (forthcoming in a symposium volume of the Journal of Marc DeGirolamiAnalytic Theology) on Professor Nicholas Wolterstorff’s recent book, The Mighty and the Almighty: An Essay in Political Theology. Here is the abstract:

This short comment explores Nicholas Wolterstorff’s claims about expressivism and retributivism as justifications for the state’s punishment of criminal offenders in his book, “The Mighty and the Almighty.” It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.

January 14, 2016

Baum’s Article on “Compassion Fatigue” Featured in ABA Children’s Rights Litigation Committee Newsletter

Professor Jennifer Baum’s new article, “Compassion Fatigue: Caveat Caregiver?” appears in the

Jennifer Baum

Jennifer Baum

winter edition of the ABA’s Children’s Rights Litigation Committee newsletter.

The article reports on a recent ABA teleconference examining “compassion fatigue,” a condition that can negatively impact lawyers and others working closely with traumatized individuals.  Studies show that so-called helping professionals who work day in and day out with victims of serious trauma can, over time, show changes in their ability to demonstrate compassion and care, and these workers can themselves also suffer from symptoms of PTSD, such as nightmares and desensitization.  As. Professor Baum notes, “research has shown that compassion fatigue leads to an increase in direct negative impacts on clients, including legal errors, client profiling, general disorganization, and conflict and toxicity in the workplace (“horizontal violence”), which in turn leads to decreased job performance.”   The article goes on to explain how to treat and reduce compassion fatigue, and improve representation for traumatized youth.

January 12, 2016

Sovern’s Letter Published in New York Times

The New York Times published a letter from Professor Jeff Sovern on December 30 on debt collectionSovern Two[2] and arbitration. Sovern wrote in part:

You show that debt collectors sue consumers in court when it suits them but bar consumers from bringing court actions by invoking obscure arbitration clauses in consumer contracts.

Businesses defend their right to do so because, they claim, arbitration is better than court for resolving disputes. But if arbitration is superior, why do businesses want to sue in court, rather than arbitrate, as your article shows and an empirical study confirms?

The answer is that businesses value arbitration chiefly when it enables them to block class actions so they may take advantage of consumers for small amounts without worrying about consumers suing them.

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