May 12, 2018

Barrett Lectures in Mineola and Rochester

On April 30, Professor John Q. Barrett delivered the Jewish Lawyers’ Association inaugural Steven J. Eisman Memorial Lecture at the Nassau County Bar Association in Mineola, New York. Professor Barrett spoke on “Nazis, Nuremberg, and the Rule of Law: Some Enduring Lessons for Lawyers Today.” Mr. Eisman, who was Nassau County Bar president at the time of his death in late 2015, was a St. John’s Law graduate and an accomplished lawyer on Long Island.

On May 2, Professor Barrett participated in a “Law Week” continuing legal education program, with U.S. District Court Chief Judge Frank P. Geraci, Jr. (W.D.N.Y.) and U.S. Magistrate Judge Marian W. Payson (W.D.N.Y.), at the Monroe County Bar Association in Rochester, New York. In the program, “From the WDNY to the Supreme Court: The History and Constitutional Importance of Three Cases,” Professor Barrett discussed United States v. Di Re (1948) and Warth v. Seldin (1975).

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L-R: Emmelyn Logan-Baldwin (attorney for plaintiffs Robert Warth, et al. in Warth v. Seldin), Chief Judge Geraci, Magistrate Judge Payson, Tom Warth & Patricia Warth (children of Robert Warth), & Professor Barrett

May 10, 2018

Movsesian Comments at Princeton Law and Religion Conference

Professor Mark Movsesian participated as a commenter in a conference, “Law, Religion, and Complicity​,” at Princeton University this week.

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Mark Movsesian

The conference was co-sponsored by Princeton’s University Center for Human Values and the Program in Law and Public Affairs. Professor Movsesian commented on a paper by Brian Hutler (UCLA), “Conscientious Objection or Political Protest, But Not Both.” Professor Movsesian is spending the semester as a visiting fellow at Princeton’s James Madison Program in American Ideals and Institutions.

May 9, 2018

Salomone’s Commentary Published in University World News

Professor Rosemary Salomone‘s Commentary, “South Africa: A Court Decision with Consequences for Languages in HE,” appeared in the May 4th issue of University World News. Professor Salomone discusses a recent provincial court ruling upholding the decision of the University of South Africa (UNISA), a distance learning institution, to eliminate Afrikaans language courses and change to an all-English curriculum with supportive services offered in nine official African languages and in Afrikaans.

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Rosemary Salomone

Focusing on principles laid out in the South African Constitution, she compares the court’s emphasis on multilingualism in the interests of “equity” and “practicality” to the Constitutional Court’s ruling this past December in the case against the University of the Free State where the decision weighed heavily on the need to “redress past wrongs.” She questions whether the new multilingual narrative will help steer post-apartheid South Africa beyond the past toward a consensus on the roles of English, Afrikaans, and other African languages, and whether it will influence the Constitutional Court in future cases, especially in the still pending litigation against Stellenbosch University, a bastion of white Afrikaner tradition.

April 27, 2018

Montana Presents at Southeastern Regional Legal Writing Conference

Professor Patricia Montana presented at the Southeastern Regional Legal Writing Conference on April 21, 2018. Her presentation, Live and Learn: Live Critiquing and Student Learning, explored how to give “live” feedback in a way that best supports student writing.

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Patricia Montana

Live critiquing is the process of giving students feedback on their written work “live,” rather than in writing, and at the same time as the professor is first reading the student’s work. This process gives students an opportunity to engage with their drafts, talk out their reasoning and writing decisions, and receive quick and individualized feedback. Through the presentation, Professor Montana discussed these benefits as well as some of the drawbacks of the technique, and offered modifications to help improve the experience for both the professor and student.

April 27, 2018

Barrett Participates in the International March of the Living, Lectures at Conference in Poland

On April 12, 2018, Professor John Q. Barrett was one of 13,000 participants in this year’s International March of the Living from Auschwitz to Birkenau, horrific sites in Poland of Nazi imprisonment, torture, enslavement, and extermination, primarily of Jews, during World War II.  jqb photo

On the following day, Professor Barrett delivered a keynote lecture, “Justice Jackson and the Holocaust,” at a conference in Krakow, Poland, for lawyers, judges, academics, and others from the U.S. and other countries. The conference was co-sponsored by the International March of the Living, Rutgers Law School, and the New Jersey State Bar Association. For video, click here; Professor Barrett’s lecture begins around the 2:47:10 mark.

Professor Barrett is biographer of Justice Robert H. Jackson, U.S. chief prosecutor at and principal architect of the 1945-1946 international Nuremberg trial of Nazi war criminals. Professor Barrett writes The Jackson List, which reaches over 100,000 readers around the world.

April 26, 2018

Greenberg’s Article to be Published in the Marquette Law Review

Professor Elayne Greenberg’s article, “… Because ‘Yes’ Actually Means ‘No’: A Personalized Prescriptive to Reactualize Informed Consent in Dispute Resolution” has been accepted for publication in the fall edition of the Marquette Law Review.  image

​Here is the abstract:

This paper proposes a radical departure from the status quo approach to securing a client’s informed consent about settlement options and refocuses informed consent practice back to what informed consent is about, the client. As it exists today, the status quo approach to securing a client’s informed consent about whether or not to use an alternative dispute resolution procedure to resolve the client’s case is inadequate. It thwarts a client’s right to exercise party self- determination and stymies a client’s ability to make informed justice choices. Lawyers, courts, ADR providers and neutrals routinely provide litigants with generic information about the structure and procedures of dispute resolution procedures that these professionals assume litigants need to make an informed decision about whether or not to litigate or to use alternative choices. Litigants, however, might find this information inadequate to support their personal decision making process. Furthermore, litigants often find this information presented in a way that is incomprehensible to the litigant’s way of processing information and making decisions. Conspicuously absent from this one-size-fits-all approach to informed consent is a more customized way to share information about the dispute resolution procedures that is tailored to the particular individual’s needs, values, and decision-making process.
Despite this inadequate information, however, many litigants still give a reflexive assent to the generic recitation of information explaining dispute resolution procedures, believing that they have no real choice. Some litigants may not even realize that they have the autonomy to choose as part of their right to make decisions about their case. Still, other litigants may be hesitant to ask for additional information, not wanting to be viewed as “stupid.” Still, others may not fathom what information they might want or need to know in order to make an informed choice. Thus, when litigants agree to participate in or opt out of a dispute resolution procedure, their “yes” may mean “no.”

 

The proposal culls from both the research on dispute resolution literacy and the innovations in the health care industry regarding informed consent and recommends a three part prescriptive. First, a database will be created that contains the universe of information that individual consumers of dispute resolution actually want to know when choosing their justice option. Second, from the broader database, each client will be able to develop his or her own customized personal profile of informational needs. The personal profile will titrate the information from the broader database and provide the client with information tailored to each client’s informational, decision-making and personal preferences. Third, lawyers and dispute resolution professionals will be educated about how to use the client’s personal profile to tailor the professional-client conversation to include relevant information to the client about the dispute resolution options being considered. The goal is to fortify clients with the information about dispute resolution procedures commensurate with the client’s informational needs, decision making process and personal values so that the client will finally be able to give their meaningful informed consent to their justice option choice.​

April 24, 2018

Movsesian Presents Paper at Princeton

This month, Professor Mark Movsesian presented his draft, “The Future of Religious Freedom,” at a faculty workshop at Princeton University.

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Mark Movsesian

The workshop was sponsored by the James Madison Program in American Ideals and Institutions, where Professor Movsesian is a visiting fellow​ this semester.  Professor Movsesian also presented his research at a dinner for Princeton undergraduates organized by the Madison Program.

April 24, 2018

Montana’s Article to be Published in Cleveland State Law Review

Professor Patricia Montana’s article, Watch or Report? Livestream or Help? Good Samaritan Laws Revisited: The Need to Create Duty to Report, will be published in the Cleveland State Law Review.

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Patricia Montana

Recent cases, like the one in Florida in July 2017, where a group of five teenagers taunted a drowning disabled man while filming his death on a cell phone, rather than coming to his aid or reporting his drowning, have sparked a renewed debate over whether Good Samaritan laws adequately serve the public’s interest.

In this article, Professor Montana explores whether states should penalize a person’s failure to aid when another person is clearly in danger of physical harm or death. She argues that the need is particularly great given the power of social media and its intersection with a bystander’s ability and decision to help. As technology advances, relationships have become increasingly impersonal, thereby wearing at an individual’s connection to and compassion for others. Social media has added a new dimension to the longstanding debate of whether laws should impose on bystanders a duty to help. In cases where a bystander is observing a crime online, the duty can be met quite simply by alerting authorities to the crime or danger. And in cases where a bystander might be tempted to use social media rather than help, the legal duty could compel the more moral choice. Accordingly, the Article proposes that states should adopt duty to aid statutes mandating that bystanders give aid or call for help when they can.

April 19, 2018

Sheff’s Article to be Published by Cardozo Law Review

Professor Jeremy N. Sheff‘s article, “Legal Sets,” has been accepted for publication in the Cardozo Law Review.

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Here is the abstract:

In this Article I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned, not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases, and help organize the available options for resolving such cases according to their form. While many legal professionals may intuitively navigate this set-theoretic structure, the formal model of that structure has important implications for legal theory. In particular, it generates a useful account of the relationships among rules, standards, and principles; provides a novel set of tools for understanding the nature of precedent; and illuminates an extra-linguistic dimension to the problem of judicial discretion. On the last point, I argue that discretion is not merely a product of the imperfect relationship between abstractions and reality, or between natural language and the world, but that it is instead an emergent structural property of the structure of legal practice: a structure composed of sets “all the way down.”

April 18, 2018

Krishnakumar Presents Article at University of Virginia Law Review Event

On Friday, April 13, Professor Anita S. Krishnakumar discussed her article, Textualism and Statutory Precedents, 104 Va. L. Rev. 157 (2018), with Professor Saikrishna Prakash at a panel hosted by the Virginia Law Review.  The online version of the article, which was just published this past week, can be found here.  Krishnakumar

Here is the abstract:

This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: the Court’s textualist Justices—or at least some subset of them—have proved remarkably willing to abandon stare decisis and to argue in favor of overruling established statutory interpretation precedents. This is especially curious given that statutory precedents are supposed to be sacrosanct. Congress, rather than the Court, is the preferred vehicle for correcting any errors in the judicial construction of a statute, and courts are to overrule such constructions only in rare, compelling circumstances. What, then, accounts for the textualist Justices’ unabashed willingness to overrule statutory precedents in recent years? And how can this practice be reconciled with textualism’s core aims of promoting clarity and stability in the law?

This Article advances a threefold thesis. First, it argues that the textualist Justices view precedents that create a test for implementing a statute (e.g., the “motivating factor” test for Title VII violations) as different from ordinary text-parsing statutory interpretation (e.g., “labor” means “manual labor”). More specifically, textualist jurists regard what I call “implementation test” precedents as akin to common-law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation-test exception” to the heightened stare decisis protection normally afforded statutory precedents. Second, the Article links textualist Justices’ proclivity for overruling to an oft-unspoken predicate assumption of textualism—that is, that there is a singular “correct answer” to every question of statutory interpretation. This assumption may make it especially difficult for textualist jurists to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. Last, the Article notes that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order, including outmoded precedents reached through the use of illegitimate, atextual interpretive resources.

Ultimately, the Article both supports and critiques textualist Justices’ approach to statutory precedents. On the one hand, it argues that a relaxed form of stare decisis for implementation test precedents makes sense for many reasons, as long as special deference is given to implementation tests that Congress has expressly endorsed. At the same time, it rejects textualists’ attempts to overrule non-implementation test precedents based on simple disagreement with the original interpretation.

 

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