St. John's University Law Faculty Blog

Professors Gina Calabrese and Jeff Sovern spoke on May 20^th and 21^st at a conference entitled “Teaching Consumer Law In the New Normal,” hosted by the University of Houston Law Center’s Center for Consumer Law and the UC Berkeley School of Law’s Center for Consumer Law & Economic Justice. Professor Calabrese’s talk was titled “Online Dispute for Consumer Credit Cases” while Professor Sovern spoke about “Using Learning Science to Teach Consumer Law.”

Professor Eva Subotnik’s book chapter, “Dead-Hand Guidance: A Preferable Testamentary Approach for Artists,” has been published in Posthumous Art, Law and the Art Market: The Afterlife of Art, co-edited by Sharon Hecker and Peter J. Karol (Routledge, 2022). As described on the publisher’s website, “[t]his book takes an interdisciplinary, transnational and cross-cultural approach to reflect on, critically examine and challenge the surprisingly robust practice of making art after death in an artist’s name, through the lenses of scholars from the fields of art history, economics and law, as well as practicing artists.” Here is an abstract of Subotnik’s chapter:

Postmortem copyrights in the United States allow for the control of art long after the artist has died. Successors to these interests, and even the public generally, may have bona fide reasons to encourage visual artists to be specific and comprehensive about the ways in which artwork is to be reproduced and used after the artists’ deaths. Nevertheless, this chapter cautions that efforts to encourage visual artists to provide guidance should simultaneously discourage any attempts to make these instructions binding. First, it is not clear that purportedly binding testamentary instructions about these matters will be effective. Second, the proliferation of such instructions may run counter to the goals of copyright law, raising the question of whether they should be effective. In short, in these matters, dead-hand guidance is preferable to dead-hand control.

In addition, Subotnik and her co-author Professor Andrew Gilden presented their forthcoming article, “Copyright’s Capacity Gap,” an interdisciplinary paper on legal issues growing out of the Britney Spears conservatorship, at two workshops this spring: the Critical Trusts & Estates Conference 2022, and the Mid-Career Intellectual Property Scholars Workshop.

Professor Anna Roberts’s article Criminal Terms will be published in the Minnesota Law Review. Its abstract is as follows:

Core terms used by criminal legal academics bolster the criminal system and ward off radical critique. They do this by conveying implicit messages of three types: that the criminal system is generally accurate, that it is necessary, and that it is well-intentioned and moving in the right direction. While recent legal scholarship has identified other subtle ways in which we send pro-carceral messages, it has not focused on vocabulary. We thus fall behind other entities, which have recently announced vocabulary change, in recognition of the harm that such messages can do. We too have influence, not just through scholarly and public conversations, but through our framing of the system for our students, who will help determine its future. We must thus explore the possibility of, and obstacles to, change in our criminal terms.

During this academic year, Professor John Q. Barrett participated virtually in these symposia and events—

·         On July 6, 2021, he introduced and interviewed Professor Melissa Murray of NYU Law School, Chautauqua Institution’s 17^th annual Robert H. Jackson Lecturer on the Supreme Court of the United States;

·         On September 17, he spoke at a Constitution Day program, “FDR and the Supreme Court,” hosted by the Franklin D. Roosevelt Presidential Library & Museum (link to program is available here);

·         On October 6, he lectured on “U.S. Supreme Court, October Term 2020” to the Federal Bar Association, Eastern District of New York chapter;

·         On October 13, he lectured on “The U.S. Supreme Court in Foreign Affairs: Robert H. Jackson’s Enduring Perspective as Justice and As Lead Prosecutor of the Nazis at Nuremberg,” to the American Foreign Law Association;

·         On October 26, he gave a lecture on the “75^th Anniversary of the Nuremberg Trials,” hosted by the Queens Public Library;

·         On February 10, 2022, he gave a lecture, “Robert H. Jackson and the Birth of the National Gallery of Art,” to the Federal Bar Association’s Art Litigation & Fashion Law Conference;

·         On March 15, he gave a Supreme Court Review lecture to the Nassau County (NY) Inn of Court;

·         On April 19, he gave a lecture, “The Most Recent ‘Justice Jackson’: Robert H. Jackson’s Path in Life and the Law,” to the AdventHealth Attorney Retreat;

·         On April 28, he gave a lecture, “Some Alexander Hamilton, But Not So Much Hamilton, in the New Supreme Court,” in the Suffolk County (NY) Bar Association’s Law Day program (link to program is available here, and Professor Barrett’s remarks begin around 59:30); and

·         Also on April 28, he gave a lecture, “Justice Robert H. Jackson, the International Nuremberg Trial, and the Path to the Doctors’ Trial,” in the New York Medical College/Touro University Yom Hashoah symposium on the 75^th Anniversary of the Nuremberg Doctors’ Trial:

Professor Renee Nicole Allen’s article Get Out: Structural Racism and Academic Terror will be published in William & Mary Journal of Race, Gender, and Social Justice. Relying on themes from the 2017 film Get Out–white liberalism, the Sunken Place, and the appropriation of Black bodies for white social and economic gain–Professor Allen argues that law school is a metaphorical Sunken Place. In the law school Sunken Place, Black people experience academic terror: overt and covert faculty behaviors directed at racially marginalized students, staff, and faculty under the guise of academic freedom in institutions steeped in structural racism. 

You can read a draft here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4091637 

Third-year law student Blair Hendricks, president of the St. John’s chapter of the National Association of Consumer Advocates, and Professor Jeff Sovern issued the initial episode of the Consumer Law and Economic Justice Podcast. Conceived by Sovern, the podcast will feature law students interviewing consumer law professors about their scholarship to make their scholarship more accessible to those interested in consumer law. In the first episode, available on Spotify here, Ms. Hendricks interviewed Berkeley law professor Abbye Atkinson about her article, Borrowing Equality, published in the Columbia Law Review.

Professor Jeff Sovern authored a guest essay in Newsday, NYS Consumer Protection Bill Provides Needed Safeguards.  The essay argues that New York’s law against deceptive practices should be broadened to provide New Yorkers the same kinds of protections consumers in many red states receive. 

Sovern also spoke at the Berkeley Law School Consumer Law Conference, held in March.

Forbes quoted him in a March 28 article titled Federal Government’s Crackdown On Broadway Ticket Service Fees Not All It’s Cracked Up To Be as follows:

“If [Broadway] ticket sellers extend credit directly, as would be the case, for example, if they issue their own credit card, then the Bureau would have jurisdiction over them,” explained St. John’s law professor Jeff Sovern. But, he said, “I can’t think of an argument for saying that that includes businesses that do no more than sell tickets in exchange for a payment via credit or debit card,” such as the Broadway ticket sellers Ticketmaster and Telecharge. 

In addition, Sovern noticed that “[t]he Bureau’s Request for Information says it is ‘interested in receiving any comments relating to fees in consumer finance.’” The scope of the government’s inquiry is limited to the fees that financial institutions charge, such as penalty fees like overdraft fees and convenience fees like wire transfer fees. “Banking is a bastion of many of these fees,” commented Chopra in an interview, observing that, “in many cases, these are fees where there’s not even a service provided or where the bank or financial institution doesn’t even do any work.”

“It may be that [the Bureau’s director] mentioned ticket sellers only as an example of an industry in which there are added fees so that people would have a clearer understanding of what [he] meant, rather than as an example of a business coming within [the Bureau’s] jurisdiction,” professor Sovern stated.

“But, that doesn’t mean that ticket sellers can relax,” he warned.

“The Federal Trade Commission, where the [Bureau’s] director, Rohit Chopra, was formerly a commissioner, would have jurisdiction over unfair fees in the ticket selling industry, as would state regulators,” professor Sovern continued. “Those other entities may decide to look into the matter, especially if the Bureau receives negative comments about fees charged by ticket sellers,” he said.

* * * 

“Hidden fees raise serious questions about market fairness,” stated professor Sovern. 

“Classical economics presupposes that consumers will make efficient decisions if they know what prices they will pay, but hidden fees make that difficult and so may lead consumers to pay more for a product than they initially intend to,” he explained. * * *

Congressional Quarterly quoted Sovern in an article titled Experts debate if CFPB credit card late fees report presages rule changes:

Jeff Sovern, a St. John’s University School of Law professor who’s an expert on consumer protection law and a frequent commenter on the workings of the CFPB, said he anticipates the bureau will seek to change the rules on credit card fees. 

“If the market doesn’t protect consumers, then the Bureau should step in, as Congress has authorized it to do,” Sovern said in an interview. “One way the Bureau could do that is by amending the existing regulation to lower the amount that lenders may safely charge for late fees.” 

He said the fact that many smaller banks charge less than the existing maximum suggests the maximum is higher than it needs to be to cover lenders’ costs when consumers make late payments. 

“That suggests that larger issuers are using late fees as a profit source in a way that smaller lenders are not,” Sovern wrote in an email. “Consequently, the Bureau could reduce the existing ceiling and still have it be reasonable.”

Sovern was also quoted by Bloomberg Law. An April 13 article, Fintechs Tout Lower Costs as CFPB Takes Aim at Bank ‘Junk’ Fees, explained: 

Banks could elect to go beyond the CFPB’s fee thresholds by arguing that higher fees are “reasonable and proportional” under the CARD Act, said Jeff Sovern, a professor at St. John’s University School of Law. 

But it might not be worth the fight, he said 

“Consequently, credit card issuers would probably lower their late fees to whatever the Bureau says the safe harbor amount is,” Sovern said. 

Finally, an April 15 New York Law Journal article, ‘Entire Supply Chain in New York’ Investigated to Fight Possible Fuel Price Gouging, opened: 

“A St. John’s University law professor indicated he wasn’t surprised by New York Attorney General Letitia James‘ investigation of potential gouging of gasoline prices.
A state probe of the oil industry got underway Thursday, attorney general spokeswoman Halimah Elmariah said Friday, confirming a report by CNN. 

This isn’t the first time James has taken aim at price-gouging, nor is it the first time a New York AG has studied gouging of gas prices, said Jeff Sovern, professor of law at St. John’s.

Former Attorney General Eric Schneiderman did so in 2011 in the wake of Tropical Storm Irene, and even took enforcement actions against some gas stations, Sovern remembered.

“Many consumers hate price-gouging, so much so that some retailers resist the urge to engage in it when items are in short supply because they don’t want to alienate their customers,” Sovern said. “Attorney General James is said to hate bullies, and pursuing price gougers would be consistent with that.” 

An interview with Professor Ray Warner was posted this week on the INSOL Talks podcast, a series of interviews with leading insolvency and restructuring law scholars and practitioners from around the world.  INSOL International is the international association of restructuring, insolvency and bankruptcy professionals. The Spotify version of the podcast is here:

Professor Renee Nicole Allen recently presented her work-in-progress, Get Out: Structural Racism and Academic Terror, to the faculties at University of North Carolina and University of Kansas. The invited talks were an opportunity to receive comments and feedback. 

Here is an abstract of the article:

Released in 2017, Jordan Peele’s critically acclaimed film Get Out explores the horrors of racism. The film’s plot involves the murder and appropriation of Black bodies for the benefit of wealthy, white people. After luring Black people to their country home, a white family uses hypnosis to paralyze victims and send them to the Sunken Place where screams go unheard. Black bodies are auctioned off to the highest bidder; the winner’s brain is transplanted into the prized Black body. Black victims are rendered passengers in their own bodies so that white inhabitants can obtain physical advantages and immortality. Like Get Out, this article reveals academic horrors that are far too familiar to people of color. In the legal academy, structural racism is the monster, and under the guise of academic freedom, faculty members inflict terror on marginalized people. Black bodies are objectified and colonized in the name of diversity and antiracism. No matter how loud we scream, the academy remains a Sunken Place. Only time will tell if the antiracism proclamations of 2020 are a beginning or a killer ending. This article explores the relationship between structural racism and academic terror in the legal academy and articulates an effective framework for analyzing academic terrorism.

On April 1, 2021, Professor Elayne Greenberg presented Blinding Justice and Virtual Dispute Resolution? at the Stetson Law Review Symposium, Is Remote Justice Still Justice? In her presentation, she discussed how mediation and arbitrations conducted on video conferencing could be re-designed to minimize racial justice inequities in civil cases.