Archive for ‘Uncategorized’

June 24, 2020

Roberts’ Article Published in the Fordham Law Review

Professor Anna Roberts’s article, Convictions as Guilt has just been published in the Fordham Law Review.  Meanwhile, her article “Victims, Right?,” forthcoming in the Cardozo Law Review, stands at #7 in the most recent SSRN Criminal Procedure download rankings.

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Below is the abstract for Convictions as Guilt:

A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding race- and class-based stereotypes of criminality. From careful examination of this phenomenon and its possible explanations, reform proposals emerge.

June 4, 2020

Barrett Solves “Switch in Time” Source Mystery, Accepts Offer to Publish Article in the Oklahoma Law Review

In President Franklin D. Roosevelt’s first-term, a U.S. Supreme Court majority with rigidly restrictive notions of legislative power struck down numerous federal New Deal and progressive state laws as unconstitutional.

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Following his thumping reelection in 1936, President Roosevelt thus proposed to “pack” the Supreme Court, expanding it with up to six new justices who would become part of a new, more deferential majority.  The Supreme Court promptly changed course in a number of pending, high-profile cases, announcing broader constitutional interpretations of federal and state government legislative powers and taking the wind out of the president’s proposal to enlarge it.  The Court’s change was, someone quipped in 1937, the “switch in time that saved nine.”

Who was the quipster?  This was asked even in 1937, as the “switch in time” line spread widely.  Various theories have been debated ever since.  No one, until now, found the answer.  Professor John Q. Barrett has discovered that the line came from Cal Tinney, a noted newspaper and radio humorist from Oklahoma.  Cal Tinney published his quip in the New York Post in April 1937, and it spread from there so fast that, apparently, people forgot to give him credit, and soon no one knew that he deserved it.

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Cal Tinney (1908-1993)

As a tribute to Cal Tinney’s Oklahoma roots and his famous (in his time, at least) Oklahoman persona, Professor Barrett will publish his article “Attribution Time: Cal Tinney’s 1937 Quip, ‘A Switch in Time’ll Save Nine’”, this fall in the Oklahoma Law Review.

Professor Barrett’s article can be found here.  Below is the abstract:

In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.  Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, 1933-1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then President Roosevelt, in early 1937, proposed to “pack”—to enlarge—the Court, so that it would become supportive of New Deal laws.

Within weeks, the Supreme Court changed course, announcing broader constitutional interpretations of federal and state government legislative powers.

The Court’s switch took the air out of the Court-packing balloon. The change was—and here is the quip that everyone knows—“the switch in time that saved nine.”

That line appeared in 1937. It was repeated by many, especially in Washington. It has been quoted ever since. Just who coined it has been debated and never established.

Until now.

June 2, 2020

Roberts Co-Hosts and Presents at Law and Society Association Conference

Professor Anna Roberts co-organized and presented in a panel at the Law and Society Association annual conference entitled “Shortcuts in the Criminal Law.”

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Other panelists were Julia Simon-Kerr (U. Conn.), Ngozi Okidegbe (Cardozo Law), Maggie Wittlin (Fordham Law), and Vida Johnson (Georgetown Law). The panel’s Discussant was Jasmine Gonzales Rose (Boston U.).  Professor Roberts presented a forthcoming piece, “Victims, Right?,” which can be found hereVictims, Right? is forthcoming in the Cardozo Law Review.

Here is the abstract:

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears in legal contexts that precede the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is the very thing to be decided. This usage matters in part because of its possible consequences: it risks obscuring and weakening the defense side of our two-sided system. It matters also because of the underlying impulses that it reveals, and that surface in analogous usages such as the widespread pre-adjudication use of “offender.” When channeled into our criminal system these impulses will recur as pre-judgments of crime, in ways that threaten defendants’ constitutional protections. But we can frame and channel them in a more hopeful way. This Article posits that we turn prematurely to the word “victim” in part because of impulses, upon hearing of harm, rapidly to acknowledge and decry it; and that we rush to “offender” because of a concomitant desire for accountability and answers. Abolitionist work provides a model for honoring those impulses through structures other than a criminal system with whose tenets and capacities they will inevitably clash.

May 29, 2020

Evans’ Paper Accepted for Stanford/Harvard/Yale Junior Faculty Forum

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.

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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.

May 29, 2020

Forbes Publishes Article About Sovern’s Stimulus Proposal

Forbes has published an article, Stimulus Proposal: $10,000 In Credit Card Interest Relief During Coronavirus Pandemic, about suggested legislation that Professor Jeff Sovern proposed along with Hofstra Law School professor Norman I. Silber to assist consumers during the pandemic. As stated in Forbes, the proposal would:

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Jeff Sovern

  • Allow banks to charge the government directly for 70 percent of interest charges on consumer credit cards; with the remaining 30 percent being charged to consumers, who could defer their portion until after the crisis is over;
  • Cap the interest rates on credit card charges that are being subsidized by the government;
  • Cap the benefit for each consumer at a certain amount – Silber and Sovern suggest $10,000;
  • Condition payment by the government on banks agreeing to defer monthly credit card payments due from consumer cardholders for the length of the coronavirus catastrophe and forgiving prior minimum payment defaults;
  • Provide for lenient consumer repayment terms thereafter; and
  • Prohibit lenders who participate in the program from increasing interest rates, reducing consumer borrowing limits, or raising interest rates after the pandemic is over on charges that were incurred during the crisis.

In addition, Marketwatch quoted Professor Sovern in What we are confronting now is really unprecedented.’ Coronavirus-related lawsuits are about to flood the courts:

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.

* * *

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.”

April 28, 2020

Barrett Publishes Justice Jackson’s “The Faith of My Fathers” in the University of Pennsylvania Law Review

Professor John Q. Barrett has published, as the lead article in volume 168 of the University of Pennsylvania Law Review, a previously unknown essay by the late U.S. Supreme Court Justice Robert H. Jackson on religion, with Barrett’s introduction, footnotes, and afterword.  The article is attracting wide readership, media coverage (e.g., this National Law Journal article), and discussion.

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Here is the abstract:

When Justice Robert H. Jackson died, he left thirteen handwritten pages—this Essay—among his papers. It has been unknown for sixty-five years, until this publication.

The essay addresses two topics: (1) Jackson’s own religious beliefs and practices and those of his ancestors, who were 19th and early 20th century American farmers; and (2) some history of Spiritualist movements in their western Pennsylvania and western New York State region. Jackson and his people were shaped by religious currents and diversities. They believed that the proper way to live is to give people space and to tolerate what they are and what they choose to believe and to practice in their own spaces, so long as they do not intrude unduly on others’.

Justice Jackson’s essay is significant because it comes from him, a renowned writer and one of the most interesting, thoughtful, and significant United States Supreme Court justices ever—it is a late-life, deeply personal piece of Jackson. The essay also has significance because it is Jackson on religion, a topic of great import in life, constitutional law, public debates, and legal cases.

As a Supreme Court justice, Jackson wrote many notable opinions addressing how the U.S. Constitution limits and empowers government in the realm of religion. In West Virginia State Board of Education v. Barnette (1943), for example, he wrote the Court’s opinion holding that the Constitution prohibits public officials from compelling Jehovah’s Witness schoolchildren to salute and pledge allegiance to the American flag. For Jackson, that limit on government power to compel professions of faith was of a piece with his view that government constitutionally may prohibit religious proselytizers from harassing others, especially in their homes—under the Constitution as he understood it, government may regulate religious actors when, but only when, their conduct imposes upon the freedom and peace of others. Jackson also believed that the Constitution bars government from ranking religion itself or any particular religion as more or less correct, or from evaluating the sincerity of professed adherents. In his view, to believe and practice any religion or none at all is, short of the point where it imposes on another, for the individual to determine, separate from government involvement.

This Jackson essay reveals that his personal views on religion and his own religious practices very much fit with his judicial interpretations of the Constitution. Jackson did not really believe in God or practice religion, but he was tolerant of others who did and how they chose to do so. He respected and deferred to the sincerity of people whose belief systems were not his. In both his living and his constitutional judging, Jackson gave religion its private space. He objected, however, and he read the Constitution as the legal basis on which to object, when government sought to bring religion into public spaces, because they belong equally to people whose beliefs range from religious belief to non-belief.

April 16, 2020

Evans’ Essay to be Published in the Federal Sentencing Reporter

Professor Sheldon Evans’s essay, In the Shadow of Shular: Conduct Can Unify the Disjointed Categorical Approaches, will be published in an upcoming issue of the Federal Sentencing Reporter.

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An abstract of the essay appears below:

The categorical approach, which is the method federal courts use to ‘categorize’ which state law criminal convictions can trigger an enhanced sentence under the Armed Career Criminal Act (ACCA), is one of the most confusing doctrines in criminal sentencing. For thousands of criminal offenders every year, 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 the ACCA’s harsh fifteen-year mandatory minimum sentence. But this elements-based categorical approach has unwittingly undermined one of the most important principles in our determinative sentencing system; by basing federal punishment on state-law criminal definitions, similar defendants are often treated differently based on what state they may have committed past crimes.

But the Supreme Court’s recent decision in Shular v. United States offers a different approach. In analyzing a slightly different section of the ACCA, the Court determined that a conduct-based categorical approach was appropriate. In these narrow sections of the ACCA, federal punishment would be based on analyzing the previous conduct of the defendant’s past crimes, as opposed to the state-law criminal elements. This Article argues that the Court’s approach in Shular can and should be expanded to all sections of the ACCA to fix the existing problems of state-to-state nonuniformity. By excising reliance on state law, and by accounting for the morally relevant sentencing factor of how a defendant may have committed past crimes (as opposed to where they committed them), a conduct-based categorical approach can remedy much of the existing confusion surrounding ACCA sentencing and achieve the uniformity that the Court always intended.

April 15, 2020

Barrett Moderates Panel on Independent Judiciary, Lectures at Conference Celebrating Charles Reich, & Interviews Justice Kagan

Professor John Q. Barrett’s late Fall and Winter activities included:

· On November 15, 2019, he moderated a panel discussion on “An Independent Judiciary: The Shield of a Free Society,” with Judges Anna Blackburne-Rigsby (Chief Judge, District of Columbia Court of Appeals), Albert Diaz (United States Court of Appeals for the Fourth Circuit), & Mark D. Martin (former Chief Justice, Supreme Court of North Carolina), at the American Bar Association/Duke Law School/Appellate Judges Education Institute (AJEI) Summit in Washington, D.C.

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L-R:  Chief Justice Martin, Chief Judge Blackburne-Rigsby, Judge Diaz, & Professor Barrett

· On January 30, 2020, Professor Barrett delivered a lecture, “Charles Reich’s New Deal,” at the conference “Charles A. Reich: A Commemoration of His Life & Legacy,” at Touro Law Center in Central Islip, NY.

· Also on January 30, Professor Barrett interviewed U.S. Supreme Court Justice Elena Kagan at the New York State Bar Association’s gala dinner, held at the Museum of Natural History in New York City.  Click here for video of this event.

April 14, 2020

Roberts Presents at Online Evidence Forum

Professor Anna Roberts discussed her research into Federal Rule of Evidence (“F.R.E.”) 609, and prior conviction impeachment more broadly, as a guest presenter in an online evidence forum, The Unavailability Workshop, organized by Vanderbilt Law’s Ed Cheng.

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Upcoming sessions will feature U.C. Davis’s Edward Imwinkelried on privileges (April 16th) and Fordham’s Dan Capra on F.R.E. 615 (April 23rd).

April 13, 2020

Allen Elected to Serve on Legal Writing Institute Board

Professor Renee Allen has been elected to serve on the Legal Writing Institute board.  The Legal Writing Institute (LWI) is a nonprofit organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources and establishing forums to discuss the study, teaching, and practice of professional legal writing. 2019_renee_allen_0

The LWI Board of Directors establishes LWI’s policies and priorities, and Board members contribute to the planning and operation of LWI’s publications, projects, events, conferences, and workshops. The Board works closely with more than 20 committees made up of volunteer LWI members to carry out these initiatives. Board members serve four-year terms, with about half the members elected every two years.

Professor Allen’s term will start at the LWI biennal conference in DC this summer. She will serve for four years.

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