Archive for ‘Uncategorized’

November 10, 2019

Boyle Presents at Church Forum

Professor Robin Boyle presented at the Garden City Community Church, Sunday Forum, on Sunday, November 3, 2019.

Boyle

Her topic was, “The Aftermath of the ‘Sex Cult’ Trial and Potential Remedies.”  Professor Boyle described the multi-week trial of Keith Raniere, which took place in the federal courts in the Eastern District of New York last spring.  Mr. Raniere ran a purported self-help organization, called Nxivm, which was headquartered outside of Albany, NY, and with multiple centers.  He was convicted on all seven charged counts, including human trafficking and racketeering.  He awaits sentencing.  Professor Boyle’s presentation drew lessons from the testimony of the witnesses, press articles, and a recent lecture at St. John’s law school by the U.S. Attorney Richard Donoghue.  She also presented legal strategies that may be used against other high demand groups.  The Garden City News published an article on November 1 highlighting Professor Boyle‘s talk.  Several members of the St. John’s community attended the presentation.

November 9, 2019

Greenberg Presents at International Online Dispute Resolution Conference

On October 30, Professor Elayne Greenberg co-presented with Noam Ebner “Strengthening ODR Justice” at the International Online Dispute Resolution Conference, sponsored by the National Center for State Courts, in Williamsburg Virginia.

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The presentation explored why lawyers, as justice stakeholders, have been conspicuously eliminated from the design, implementation and delivery of court-connected ODR services, at the expense of compromising the quality of ODR justice outcomes. Professor Greenberg and Ebner then suggested constructive strategies for courts and ODR designers to engage lawyers in the delivery of ODR justice. A special thanks to John Inzetta for helping to design the props used for this presentation.

The presentation was based on Professor Greenberg’s co-authored article with Noam Ebner, “Strengthening ODR Justice.” The article has been accepted for publication in the Spring 2020 edition of Washington University’s Journal of Law & Policy.

Here is the abstract:

This paper adopts a systems-design approach to focus courts and lawyers on the hitherto unexamined question of how involving lawyers in the design, development, and implementation of online dispute resolution (ODR) programs, will strengthen ODR justice outcomes and court-delivered justice overall.

Behind the scenes of every courthouse in the United States today, justice system professionals are grappling with the same set of basic questions: how to get by on fewer resources, how to cope with the access to justice crisis, and how to provide better justice outcomes. To help solve these justice problems, courts have begun to appreciate technology’s potential to streamline processes, increase access, and reduce costs. Indeed, over the course of the past few years, courts across the United States have been designing and piloting online dispute resolution (ODR) systems. We are currently at a tipping point, at which court ODR, at once a new approach to caseflow management and a court-implemented alternative to litigation, is poised to become the default justice process in an increasing number of jurisdictions.

While court administrators, judges, ODR experts and the public have all been involved in the process of conceptualizing, designing, and implementing ODR systems in courts, one key stakeholder in the justice system has been conspicuously absent from the table: the legal profession. In the development of some ODR systems, lawyers have been excluded; in the design of other ODR systems, the lawyers, themselves have chosen to be absent from the design process. The result of this lack of lawyer involvement is that many of these court-annexed ODR systems effectively design lawyers out of the legal process itself. This has deep implications for the very nature of the procedural and substantive justice disputants will experience and receive in the ODR-infused court system. In this paper, we show how constructive engagement by and with the legal profession, with an eye towards justice rather than professional protectionism, can improve justice in Court ODR.

November 9, 2019

Lazaro Presents at the PIABA Annual Conference and is Appointed to the FINRA Investor Issues Committee

At the end of October, during the PIABA Annual Meeting, Professor Christine Lazaro completed her term as president of PIABA.

Christine Lazaro

Professor Lazaro also presented on two panels at the conference.  On the first, “Broker-Dealer Standards of Conduct,” Professor Lazaro discussed the SEC’s recently adopted Regulation Best Interest and its impact on broker standards of conduct. She also wrote an article for the panel entitled, “An Overview of the Regulation Best Interest Rule Package.”  On the second panel, “Business Development Companies and Product Cases,” Professor Lazaro described the regulation of business development companies and common claims that may be made by investors who have been put into these products.  She also submitted an article for this panel, “Business Development Companies – The Basics.”  Finally, Professor Lazaro moderated the panel, “Review of FINRA DR Activities and Developments in 2019,” which included FINRA Executive Vice President and Director of Dispute Resolution Richard Berry.

Professor Lazaro has also been appointed to the FINRA Investor Issues Advisory Committee.

FINRA describes the committee as follows:

The Investor Issues Committee is composed of subject matter experts, including academics, consumer advocates, former securities regulators, institutional investors and individuals affiliated with non-broker-dealer asset management firms. The committee advises FINRA staff on matters that significantly affect individual and institutional investors, including proposed rulemaking, policy initiatives and other issues, and to help inform FINRA’s economic analysis from the perspective of investors. In addition, the committee routinely reviews rule proposals and regulatory initiatives before they are brought before the FINRA Board.

November 8, 2019

Barrett Lectures on the U.S. Supreme Court and Other Topics at Numerous Venues

Professor John Q. Barrett has delivered several lectures and participated in numerous events since last summer, including:

On September 17, 2019, he was the Constitution Day speaker at the Franklin D. Roosevelt Presidential Library & Museum in Hyde Park, NY, discussing presidential power under the United States Constitution and during F.D.R.’s presidency.

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Professor Barrett in conversation with Jeffrey Urbin of the FDR Library

On September 24, Professor Barrett met at St. John’s University’s Manhattan campus with teachers and students from Tønder Handelsskole in Tonder, Denmark, for a discussion of U.S. law and government.

On October 6, he spoke at the Holocaust Memorial & Tolerance Center of Nassau County in Glen Cove, New York, introducing and then speaking after a screening of the film “Prosecuting Evil: The Extraordinary World of Ben Ferencz,” Nuremberg chief prosecutor of the Einsatzgruppen Case.

On October 16, Professor Barrett spoke on “U.S. Supreme Court, October Term 2018:  The Court of ‘We’re Not Politically Pre-Committed!’,” at a Federal Bar Association program at the U.S. Courthouse in Central Islip, NY.  His fellow lecturers were the Hon. A. Kathleen Tomlinson, Hon. Steven I. Locke, and attorneys James M. Wicks, Marjorie Mesidor, and Ana Shields.

On October 29, Professor Barrett spoke on “U.S. Supreme Court, October Term 2018,” in a program on “Recent Significant Decisions and Developments from Our Highest Appellate Courts,” held at the Queens County Bar Association in Queens, NY.  His fellow lecturers were the Hon. Alan D. Scheinkman ‘75, Presiding Justice of the Appellate Division, Second Judicial Department, New York State Supreme Court; Spiros A. Tsimbinos, Esq.; Karl E. Pflanz, Deputy Chief Court Attorney, Second Department; and Paul Shechtman, partner in Bracewell LLP and Lecturer in Law at Columbia Law School.  For a press report, click here.

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L-R:  Spiros Tsimbinos, Prof. Barrett (speaking), & Karl Pflanz

October 24, 2019

Greenberg Presents at AALS ADR Conference

On October 4, Professor Elayne E. Greenberg presented her paper “Erasing Race in Plea Bargaining” at the 13th Annual AALS ADR Section Works-in-Progress Conference hosted by the UNLVBoyd School of Law and the Saltman Center for Conflict Resolution.   

Here is the Abstract:

greenberg

This paper prescribes debiasing reforms for the plea bargaining process to help mitigate the racialized presumption of guilt that deprives African American male defendants of their justice rights.

Despite our criminal justice system’s guarantees of “justice for all” and “innocent until proven guilty,”  African American male defendants know too well that these guarantees don’t apply to them. Even though this “presumption of innocence” is a legal right and a human right, the data shows that African American male defendants suffer a racialized presumption of guilt in every part of the criminal system, including in the plea bargaining process. Today, upwards of 97% of criminal cases are resolved by plea bargaining. However, because of the racialized presumption of guilt against African American male defendants,  African American male defendants who plea bargain in state criminal courts are more likely to be presumed guilty, even when factually innocent. Furthermore, those African American male defendants who are guilty of a crime and opt to plea bargain, are often penalized with harsher outcomes because of their race. The status quo must change.

This racialized presumption of guilt is anchored in our country’s deep, racially discriminatory roots that built a society, an economy and a criminal justice system on slavery. Even though we may explicitly reject and be appalled by our country’s historical discriminatory conduct, we may still internalize  as implicit biases the racially discriminatory messages that are communicated in the media and broader culture. These racially implicit biases also influence the prosecutors and defense attorneys who are the primary legal actors in plea bargaining. Thus, although prosecutors and defense attorneys many not be explicitly biased, they are still prone to unconsciously regard African American men as dangerous, aggressive, likely to use weapons and prone to criminality. Such implicit bias contaminates every aspect of the plea bargaining process from the evidence relied upon, the severity of the initial charges and the final sentencing agreement. This implicit bias infects defendants and prosecutors alike as well as the justice organizations that employ them.

This paper expands the scholarship about plea bargaining by “naming the elephant in the room” and tackling how to mitigate the implicit racial bias in plea bargaining. In doing so, the author integrates the work of cognitive behavioral psychologists, anti-racism educators, dispute system designers, negotiation scholars and criminal justice reformers and recommends organizational and individual debiasing strategies to erase race from plea bargaining. Combined, the recommendations will: provide legal actors involved in plea bargaining with the skills to manage their racialized implicit biases; establish a more deliberative plea bargaining process in which there is a sharing of objective information to minimize the reactive decision making that evokes implicit racial bias;  and  help implement procedural safeguards to check the prosecutorial discretion that may be applied in a racialized way. District attorneys’ offices, public defenders’ organizations and the prosecutors and defense attorneys that work within these organizations are the primary legal actors who  not only control plea bargaining, but also have the power to enact these prescribed reforms.

The ultimate goal of the proposed reforms is to ensure that African American male defendants reclaim their right to be “presumed innocent until proven guilty.”

October 22, 2019

Salomone Publishes Commentary on South African Constitutional Court’s Historic Ruling on Language

Professor Rosemary Salomone published a commentary on the South African Constitutional Court’s recent ruling in the case against Stellenbosch University, “Court Moves Beyond the Past in Favouring English,” in the October 19th issue of University World News.
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Rosemary Salomone

This is the last of a trilogy of cases that Professor Salomone has examined in which the Court has addressed language policies, favoring English over Afrikaans, adopted in the wake of student protests in 2015 and 2016 to “decolonialize” higher education and offer instruction in English, which black students view as the language of liberation and opportunity. Here she notes that over the course of the three decisions, the Court has shifted toward an increasingly inclusive and less politically charged multilingual narrative placing Afrikaans on a plane with other African languages, without forgetting the wrongs of the past. She further notes that, given the deep-seated tradition of Afrikaans at Stellenbosch and the role that Afrikaans played, both real and symbolic, in maintaining racial exclusion under apartheid, the Court’s decision diminishing Afrikaans’ present-day relevance is historic not just for the university, but for South Africa.
October 22, 2019

Krishnakumar Presents at USC, Seton Hall

On September 25, Professor Anita S. Krishnakumar presented her paper, Backdoor Purposivism, forthcoming in the Duke Law Journal, at a faculty workshop at Seton Hall Law School.  On October 17, she presented Backdoor Purposivism at a faculty workshop at the University of Southern California Law School.

Krishnakumar

Here is the abstract:

It has become standard, among statutory interpretation commentators, to declare that “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court—including those considered purposivists—pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined compared to its heydey in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute—or, alternately, using purpose as a threshold consideration in determining whether a statute is ambiguous in the first place.

This Article breaks from the conventional “purposivism is dead or dying” wisdom in two important ways. First, it argues, based on empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not. Second, and perhaps more importantly, the Court’s textualist Justices quietly have been engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress in many cases. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent. The Article suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest—but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text-focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit, in order to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.

October 21, 2019

Cunningham Presents at University of Tennessee Law School

Associate Dean Larry Cunningham presented at the University of Tennessee College of Law on October 10, 2019.

Vice_Dean_Cunningham

The topic of his presentation was, “Effective Programmatic Assessment … That is Respectful of Faculty Time.”  He described how law schools can implement the ABA’s assessment requirements in a manner that is effective, helps improve student learning, and is also efficient.

October 11, 2019

Joseph’s Book to be Published by Farrar, Straus & Giroux; Joseph Speaks at Loyola University Chicago

Professor Lawrence Joseph’s ninth book, A Certain Clarity: Selected Poems, will be published by Farrar, Straus and Giroux in March 2020.

larry joseph photo

On September 20, 2019, he was a featured speaker in the Catholic Imagination Conference: The Future of the Catholic Literary Tradition, at Loyola University Chicago.

October 11, 2019

Duryea Publishes Chapter in the Routledge History of Human Rights

Professor Catherine Duryea‘s book chapter, “The Universality of Human Rights: Early NGO Practices in the Arab World,” was published last week in the Routledge History of Human Rights.

Here is the abstract:

Drawing on interviews as well as published material and organizational archives, this essay explores the practices of several Arab human rights NGOs in Palestine, Morocco, Kuwait, and Egypt from the late 1970s to the early 1990s.  catherineAll of the organizations engaged in a range of activities that are familiar to any human rights NGO, but they used international law and institutions in fundamentally different ways to pursue goals specific to their political context.  These divergences reflected domestic and regional political constraints as well as the preferences and beliefs of early activists. The organizations demonstrate how human rights became relevant throughout the Arab world and provide new insights into debates over the universality of human rights. Their place in Muslim-majority states positioned them as critical voices in the debate over the compatibility of religion and human rights. Their members’ calls for adherence to international law in countries with complex legacies of colonial interference speak to whether human rights are uniquely Western. And their continued existence in countries with egregious violations highlight the role of human rights when international law is not respected.

 

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