April 4, 2016
Professor Eva Subotnik’s article, “Artistic Control After Death,” has been accepted for publication 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
Professor Anita Krishnakumar’s article, Reconsidering Substantive Canons, was accepted for 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.
January 14, 2016
Associate Academic Dean Larry Cunningham’s research on dog bite statistics was cited favorably by
the West Virginia Supreme Court of Appeals, the court of last resort in that state, in State v. Blatt, 774 S.E.2d 570 (2015). Blatt overturned a lower court’s decision ordering the destruction of “Tinkerbell,” a pit bull terrier that bit a child. The question in the case was whether pit bulls are “inherently vicious.” In his 2005 article, Cunningham cited research from the CDC and other experts to conclude that there was no scientific basis for the belief that some breeds of dog, such as pit bulls, are inherently dangerous or are disproportionately responsible for fatal or non-fatal dog bites. The court summarized Cunningham’s article, writing that it “describ[ed] in great detail how dog-bite statistics may not accurately present the nature of the dog bite problem because of how data is collected, what data is collected, and how data is analyzed.” Cunningham’s article is entitled The Case Against Dog Breed Discrimination by Homeowners’ Insurance Companies and is published in volume 11 of the Connecticut Insurance Law Journal.
November 18, 2015
Professor Cheryl L. Wade will present a paper entitled “The African
American Consumer and Predatory Lending” at a conference organized by Indiana Tech Law School and Attorney General Greg Zoeller on November 18, 2015. In her paper, she explores a range of contexts in which African American consumers face economically debilitating discrimination in the mortgage and auto loan contexts.
November 17, 2015
Professor Anita Krishnakumar presented her work in progress, Reconsidering Substantive Canons, on Monday, November 9, at Cardozo Law School’s faculty workshop series. The paper discusses the Roberts Court’s use of substantive canons over its first six terms and argues that the empirical evidence suggests that many of scholars’ conventional assumptions about this category of interpretive canons are wrong, or at least overstated.
April 29, 2015
Professor Janai S. Nelson has published her article, Arc of Injustice: Pre- and Post-Decision Thoughts on Shelby County v. Holder, in a symposium issue on the case and the Voting Rights Act in Touro Law Center’s Journal of Race, Gender, and Ethnicity.
April 17, 2015
I have a new article up titled, Free Exercise By Moonlight. Here’s the abstract:
How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.
1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.
In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.
Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation — understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.
April 15, 2015
Professor Michael Perino’s co-authored article on securities class action fee-setting (linked below), which will be published in the Columbia Law Review, was cited in this Reuters story by Alison Frankel. A bit from the beginning:
A couple of weeks ago, I wrote about a fee opinion by U.S. District Judge Lewis Kaplan of Manhattan, who decided that a request by class counsel for 13 percent of a $346 million settlement with underwriters of IndyMac mortgage-backed securities was just too much. Even though the 13 percent request was in line with the fee deal plaintiffs’ firms had negotiated in advance of the litigation with the lead plaintiff, a public pension fund, Kaplan cut the fee award to 8 percent, based on his own experience with securities class actions and skepticism about the hours reported by class counsel.
That example is a paradigm of the problems with the current system of awarding fees in securities class actions, at least as those problems have been pinpointed in an upcoming Columbia Law Review article by law professors Lynn Baker and Charles Silver of the University of Texas and Michael Perino of St. John’s University. In “Is the Price Right: An Empirical Study of Fee-Setting in Securities Class Actions,” the professors dipped into the dockets of 434 settlements announced between 2007 and 2012, looking at (among other things) how pre-set fee agreements with counsel factored into lead plaintiff selections; how fee requests and awards varied by the volume of cases handled by different jurisdictions and even individual judges; and why judges in about 15 percent of the settlements cut the requested fees.
Their overall conclusion is that in the vast majority of cases, fees are determined after the fact, based only on the size of settlement and the biases of the court. The professors argue that their findings show one of the goals of the Private Securities Litigation Reform Act of 1995 – to encourage lead plaintiffs to exercise oversight by negotiating fee arrangements with class counsel at the onset of a case – has not been met. They also concluded plaintiffs lawyers may be exploiting market inefficiencies by requesting higher fees from courts with a low volume of securities cases. And judges who slash fee requests without real analysis of benchmarks, they said, create uncertainty that, in the long run, hurts investors because it discourages class action lawyers from investing in cases.
April 15, 2015
Professor Eva Subotnik’s article, Copyright and the Living Dead?: An Estates Law View
of the Post-Mortem Term, will be published in the fall by the Harvard Journal of Law & Technology. Here is the abstract:
Is there any good reason why the term of copyright, which was once a scant fourteen years long, should now last decades beyond the death of the author? Proponents of copyright as a form of property have generally welcomed this expansion. By contrast, recent scholarship has cast doubt on the soundness of any post-mortem period of protection, citing anti-social behavior by well-known authors’ successors that threatens our cultural heritage. Absent from the literature thus far, however, has been a systematic study of how estates law principles, which govern the general succession of property, bear on the justifications for and scope of copyright’s post-mortem term. Undertaking that task, this article makes two principal points. First, estates law theories and doctrines provide discrete support—beyond what general property principles provide—for a post-mortem term that should be taken into account in any debate over copyright duration. Second, while there are costs associated with the post-mortem term, they should be viewed primarily through the prism not of dead-hand control but of suboptimal stewardship by the living. Together, these points begin to suggest changes that should be implemented, including the shortening of the post-mortem term and the instantiation of better stewardship practices among authors’ successors.
April 13, 2015
Professor David Gregory was a featured panelist and speaker at the Syracuse University and Le Moyne Labor and Religion conference, “Moral Vision From/For the Grassroots,” on April 10 and 11, 2015. He will moderate a featured panel, “Catholic Colleges and Universities, Collective Bargaining and NLRB Jurisdiction,” at the annual conference of the National Center for the study of collective bargaining in higher education and the professions, CUNY Graduate Center, on April 21, 2015.
His chapter on labor and employment law has been published in “A Clearer Lens: American Law from a Catholic Perspective.”