Archive for ‘Uncategorized’

November 9, 2020

Barrett Publishes Essay in New “Hamilton and the Law” Book

Professor John Q. Barrett is one of millions who know, love, and have learned lots from Lin-Manuel Miranda’s “Hamilton: An American Musical.”  And Barrett now is one of thirty-five leading scholars and lawyers whose essays were published last month in Hamilton and the Law: Reading Today’s Most Contentious Legal Issues through the Hit Musical, a collection edited by Professor Lisa A. Tucker and published in hardback and paperback by Cornell University Press.

Professor Barrett’s essay, “Some Alexander Hamilton, But Not So Much Hamilton, in the New Supreme Court,” is described in this abstract on SSRN:

This essay considers the possibility that Hamilton: An American Musical, the sensation that has captivated so many, plus its soundtrack that plays on in our heads and on our devices, will stir and influence United States Supreme Court justices as they interpret the U.S. Constitution.

Our Supreme Court justices have always been interested in the lives and the words of the Founding Fathers. For example, The Federalist essays of 1787-1788, most of them penned by Alexander Hamilton, have been cited in hundreds of Court decisions. So have other Founding-era materials, including many words from James Madison, the so-called Father of the Constitution. But as Justice Robert H. Jackson wrote in the 1952 Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), this judicial enterprise often is not illuminating—“a Hamilton may be matched against a Madison”; “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

When the musical Hamilton opened on Broadway in 2016, Hillary Clinton was on her way to being elected president. It was predictable that she would get to appoint new Supreme Court justices, and that they would be, as she is, inclined to read expansively the Constitution’s provisions defining national government powers. These newcomers would constitute a Supreme Court in the Hamilton era. They would see the musical, hear the songs, be stirred, and perhaps even quote from and cite to Hamilton.

U.S. politics took a different path. Yes, many of the justices have seen Hamilton. More liberal, nationalistic, Alexander Hamilton-admiring justices have praised it. More conservative justices have had less to say about it. In Supreme Court decisions through June 2019, there is not much trace of Hamiltonian—forefather or modern musical—influence.

For an American Lawyer Media interview with Professor Lisa Tucker of Drexel University, architect and editor of this fun and substantive new book, click here.

John Q. Barrett
Professor of Law

October 26, 2020

Krishnakumar Presents at Univ. of San Diego School of Law

On October 16th, Professor Anita Krishnakumar presented her paper, Cracking the Whole Code Rule, at a virtual faculty workshop at the University of San Diego School of Law.  Cracking the Whole Code Rule is forthcoming in the N.Y.U. Law Review.   

Here is the abstract:

Over the past three decades, since Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.”  In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.”  Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.  One prominent article on the topic, published twenty years ago, criticized the Court for treating statutes enacted at different times by different legislators as though they were enacted by one, never-changing Congress.  Other scholars have touched on the topic in passing, but no one has systematically studied how judges employ this interpretive tool.

This article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of the full universe of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half terms.  The article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions.  The article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons.  For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third of the cases compare statutes that regulate entirely unrelated subject areas.  Moreover, many of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.  

The article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural drafting choices.  The article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise.  It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other.  

Anita S. Krishnakumar
Mary C. Daly Professor of Law
October 19, 2020

Sovern Authors Short Essays on COVID Issues, Quoted in Media

Professor Jeff Sovern has recently penned several short essays on consumer protection issues arising out of the pandemic. On October 13, Bloomberg Law published his essay, Instead of Liability Waivers, Reduce the Spread of Covid-19. The Hill ran his piece, Should colleges be immune if they negligently infect students with COVID? on June 5. On September 7, the ContractsProfBlog featured his essay, Congress Should Outlaw Contract Clauses Waiving Liability for Negligently Exposing People to COVID as part of its virtual symposium on contracts and COVID.  

Sovern was also quoted by Bloomberg Law in an October 13 story, CFPB Readies Debt Collection Rules for Long Overdue Tech Update and by Front Office Sports on August 11 in Gyms Face Consumer Blowback Over Cancellations During Pandemic

Jeff Sovern
Professor of Law
October 5, 2020

Krishnakumar Presents Paper at University of Virginia and Penn State

On October 2 and September 24, Professor Anita Krishnakumar presented her paper, Cracking the Whole Code Rule, at virtual workshops at the University of Virginia Law School and Penn State Law School, respectively.  Cracking the Whole Code Rule is forthcoming in the N.Y.U. Law Review.  

Here is the abstract:

Over the past three decades, since Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.”  In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.”  Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.  One prominent article on the topic, published twenty years ago, criticized the Court for treating statutes enacted at different times by different legislators as though they were enacted by one, never-changing Congress.  Other scholars have touched on the topic in passing, but no one has systematically studied how judges employ this interpretive tool.

This article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of the full universe of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half terms.  The article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions.  The article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons.  For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third of the cases compare statutes that regulate entirely unrelated subject areas.  Moreover, many of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.  

The article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural drafting choices.  The article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise.  It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other.  

Anita S. Krishnakumar
Mary C. Daly Professor of Law
September 16, 2020

Movsesian Pens Book Review on Judicial Supremacy

Professor Mark Movsesian has just written a book review for Law & Liberty on judicial supremacy, entitled “Does the Court Have the Final Word?” A link to the book review is available here.

Mark L. Movsesian
Frederick A. Whitney Professor of Contract Law
Co-Director, Center for Law and Religion
September 15, 2020

Boyle Writes Invited Chapter for Political Science Book

Professor Robin Boyle has written an invited chapter for a forthcoming political science book called “Generations in American Politics.” Her chapter is titled, “The Times They are a Changin'”: Lessons Imparted from the 1960s Civil Rights Movement and the Current-Day Climate Movement. The book is slated for publication by the University of Michigan Press in the Fall of 2021. The book’s editors are Dr. Sally Friedman and Dr. David Schultz, political scientists.

Prof. Boyle’s current chapter continues from earlier research and publications. Her interest in generations grew from her empirical study about the Millennial generation in the context of learning styles, see 56 J. Legal Educ. 281 (2006) (peer-reviewed) (co-authored with Dr. Joanne Ingham). Her interest in American social movements stems from her co-authored legislative and administrative history on the War on Poverty programs (published by Community Services Administration, 1981) (co-authored with Kathryn Lazar, Esq. & Laura Zeisel, Esq.).  

Prof. Boyle will be presenting the current work at the Northeastern Political Science Association virtual conference on November 7th during a Zoom prerecorded panel.

Robin Boyle
Professor of Legal Writing
September 11, 2020

Lazaro Speaks on Securities Arbitration Issues

This past week, Professor Christine Lazaro moderated the webinar, “The Fundamentals of FINRA Arbitration: When the FINRA Forum Applies and Vetting & Accepting Cases,” for PIABA. The panel discussed the types of disputes that are subject to arbitration with FINRA Dispute Resolution Services, as well as the steps involved in initially investigating a case.

Professor Lazaro also participated on PLI’s Securities Arbitration 2020 program. She moderated the panel, Arbitration and Mediation Settlement Practicum, which discussed settlement strategies and handling mediations in an online setting. Professor Lazaro also participated as a speaker on the panel, Staying Ahead of the Curve: Hot Topics in Securities Arbitration and Future Trends, during which she discussed changes to the standards governing investment professionals and other issues on the horizon in securities arbitration for 2021. Additionally, Professor Lazaro and Scott Eichhorn co-authored the article, Telephonic Mediations of Small Claims, for the program materials.

Christine Lazaro
Professor of Clinical Legal Education
Director, Securities Arbitration Clinic
September 11, 2020

Todres Publishes Article in NYS Bar Association Journal

Professor Jacob Todres has published a short article in this month’s New York State Bar Association Journal, entitled Tax Malpractice Damages—Return to FundamentalsAnother Court Gets It Right, 92 (No. 7) N.Y.S.B.A.J. 57 (Sept/Oct 2020).

The article focuses on Bloostein v. Morrison Cohen LLP, 2019 N.Y. Slip Op. 50199(U) (Sup. Ct. N.Y. Co. Feb. 2019) (Westlaw), which held that additional taxes caused by a tax advisor’s negligence may be recoverable under New York law. While this holding seems unexceptionable under traditional New York tort law, it is important because several cases decided between 2007 and 2014 held such additional taxes were not recoverable. These other cases, rather inexplicably, relied on precedent decided under the fraud measure of damages. Todres is hopeful that Bloostein has properly reset the focus in this area.

Jacob L. Todres
Professor of Law
September 11, 2020

Borgen Writes Essay on “Articles of War” Blog

Yesterday Professor Christopher Borgen posted an essay, “Space Power, Space Force, and Space Law,” on the new Articles of War blog, which is under the auspices of West Point’s Lieber Institute. In it, he describes aspects of the current transformation of civilian and military space activities and introduces some of the ways that the law of armed conflict and space law overlap in this rapidly evolving environment.

A link to Professor Borgen’s essay is available here.

Christopher J. Borgen
Professor of Law
Co-Director, Center for International and Comparative Law
September 9, 2020

Salomone Quoted in World University News

Professor Rosemary Salomone was quoted in the September 7, 2020 issue of World University News on the question of allowing students in Moroccan universities a choice between remote and in-person learning in the coming semester. Professor Salomone stressed that the choice would prove empty unless the government or university has taken all the necessary measures and provides the resources, staff training, and ongoing technological support to allow a meaningful and safe experience in either model. 

A link is available here.

Rosemary Salomone
Kenneth Wang Professor of Law
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