October 25, 2021

Movsesian Interviewed about Courts and COVID-19

Professor Mark Movsesian was interviewed by Kelsey Dallas about his upcoming article on the courts’ responses to COVID-19 restrictions, State of the Field Essay: Law, Religion, and the COVID Crisis, forthcoming in the Journal of Law and Religion.

The interview was first published in the State of Faith newsletter and can be found here.

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

October 22, 2021

Greenberg Presents Dispute System Framework for Reimagining Racism Education

On October 8th, Professor Elayne Greenberg presented her paper Harnessing the Paradox of Racial Stressors: Reimagining Racism Education While Reducing Cancel Culture Casualties at the 14th Annual AALS Section on Dispute Resolution Works-In-Progress Scholarship Conference. This year’s conference was hosted by the Straus Institute at Pepperdine Caruso School of Law.

Here is an abstract of the article:

Law school administrators and professors are now being compelled to rethink their law school curriculum so that it more accurately reflects how systemic racism is embedded in our legal system. Get it wrong, and individual professors and administrators risk being cancelled.

This article provides the first dispute system framework to implement pedagogy on racism in law school. Although the focus is on skills courses and clinics, the suggested framework is applicable to all law school classes. The prescribed approach draws on an interdisciplinary understanding of the physiology and psychology of racial stressors and, building on that knowledge, explains how racial stressors in law school impact learning about racism. While respecting students’, professors’, and administrators’ individual wiring regarding racial stressors, a goal is to educate law students about how to become effective advocates when confronting the inherent racism in legal practice.

Elayne E. Greenberg
Assistant Dean for Dispute Resolution Programs
Professor of Legal Practice
Faculty Director, Hugh L. Carey Center for Dispute Resolution
October 21, 2021

Roberts Article Cited in Multiple Federal Court Opinions

Professor Anna Roberts’s article Reclaiming the Importance of the Defendant’s Testimony: Prior Conviction Impeachment and the Fight Against Implicit Stereotyping, 83 U. Chi. L. Rev. 835 (2016), was cited in three federal court opinions in the last five months. In each instance, it was cited to support a judicial decision to exclude a criminal defendant’s prior convictions for impeachment purposes. The late Hon. Jack B. Weinstein cited the same article in a 2016 opinion granting a motion to prohibit prior conviction impeachment. The article abstract follows:

Implicit courtroom stereotypes are an urgent problem. When trial defendants are African American, as is disproportionately the case, they are vulnerable to implicit fact finder stereotypes that threaten the presumption of innocence: unconscious associations linking the defendants with violence, weaponry, hostility, aggression, immorality, and guilt. Implicit-social-cognition research reveals that one valuable tool in combating this threat is individuating information—information that, through methods such as defendant testimony, brings an individual to unique life.

Yet courts frequently chill defendant testimony by permitting impeachment by prior conviction. Courts determining whether criminal defendants should be impeached by their prior convictions use a multifactor test, one factor of which is “the importance of the defendant’s testimony.” This factor was designed to prevent defendant testimony from being chilled: if the testimony was important, then impeachment was to be avoided. Now, courts often invert this factor’s meaning: they find that if the defendant’s testimony is important, the government should be able to impeach it. The distortion of this factor means not only that impeachment is typically permitted — and defendants frequently silenced — but also that a valuable opportunity to tackle courtroom bias is lost.

This Article proposes that the “importance of the defendant’s testimony” factor should be reclaimed as a means for defendants to argue that the individuating information that their testimony can offer militates against permitting impeachment. When the defendant’s race risks triggering stereotypes that threaten the presumption of innocence, individuation represents a crucial part of the struggle for a fair trial.

Anna Roberts
Professor of Law
October 19, 2021

Salomone Speaks, Comments, Is Quoted, and Is Reviewed in Kirkus

Professor Rosemary Salomone was a guest speaker at the annual meeting of the National Council of State Education Attorneys in early October. Her talk, “Educating English Learners for the Global Economy: Policy, Politics, and the Law,” examined the limitations in federal law and the politics of top-down and bottom-up change at the state and local levels, focusing on California, Utah, and New York City.

Her commentary, “Constitutional Court Resets the Narrative on Afrikaans,” appeared in the October 14th edition of University World News. The commentary discusses the last in a trilogy of higher education decisions by South Africa’s Constitutional Court that counsels against reducing the Afrikaans language to a “simplistic narrative” of “hegemony and decline” while not erasing the memory of apartheid. 

Professor Salomone also was extensively quoted in an article in Fair Planet on the recent South African Constitutional Court decision.

In the October 12th edition of University World News, in “Vice-Chancellor Takes His Place in Cabinet ‘Full of Skills,’” Professor Salomone is quoted on the challenges facing Morocco’s new Minister for Higher Education, Scientific Research and Innovation, underscoring the need to resolve the tension between French and English instruction in strengthening the country’s position in Africa and in the world economy.

Finally, her forthcoming book, The Rise of English: Global Politics and the Power of Language (Oxford University Press, 2021), was reviewed very favorably in Kirkus Reviews.

Rosemary Salomone
Kenneth Wang Professor of Law

October 12, 2021

Selby & Smith Chapter Included in New Book on Online Legal Education

Professors Courtney Selby and Rachel Smith have penned the first chapter in the newly released book Law Teaching Strategies for a New Era: Beyond the Physical Classroom (co-edited by Tessa L. Dysart and Tracy L. M. Norton). The first comprehensive book on online legal education, it explores techniques, tools, and strategies that can assist all types of law professors in that endeavor. Their chapter focuses on the value of faculty-led innovation in developing and delivering online education. Selby & Smith use the model chosen by the St. John’s Law Faculty in their shift to online instruction to illustrate the benefits of a faculty’s deep commitment to both exploring pedagogical models for online teaching and creating space for collaboration and innovation.

Courtney Selby
Associate Dean for Library Services
Associate Professor of Legal Research
Rachel H. Smith
Associate Dean for Experiential & Skills-Based Education
Professor of Legal Writing
September 20, 2021

Barrett Publishes Article on RBG and NY Court of Appeals 

Professor John Q. Barrett has published a short article, “Ruth Bader Ginsburg: Litigating Against Gender Discrimination…and Remembering One Such New York Case,” in the Historical Society of the New York Courts’ publication Judicial Notice.

The article is about Ginsburg as a New Yorker; her 1970s American Civil Liberties Union (ACLU) Women’s Rights Project litigation for women’s and men’s equal rights, including in the U.S. Supreme Court; and her involvement in Sontag v. Bronstein, a little-remembered case that the New York Civil Liberties Union (NYCLU)—the ACLU’s local affiliate—won in the New York Court of Appeals in 1973. Sontag concerned a dumbbell-lifting test that New York City’s Civil Service Commission imposed as a job qualification on Ms. Sontag, a school audio-visual aide; because she failed this weight-lifting test, the City moved to dismiss her. The New York court decided that this was illegal gender-based discrimination.

In Sontag, Ginsburg, representing the ACLU, was on the NYCLU attorneys’ brief. If the New York court had decided against Sontag, Ginsburg might have taken the case to the U.S. Supreme Court, where it might have produced a landmark decision concerning the unconstitutionality of gratuitous sexism.

Justice Ginsburg always remembered the Sontag case and the excellence of the brief. She kept it nearby during her judicial career.  

Click here for an abstract of Professor Barrett’s essay and to download it.

John Q. Barrett
Professor of Law

September 15, 2021

Cavanagh’s Essay Accepted By Cornell Law Review Online

Professor Ned Cavanagh’s essay, Countering the Big Lie: The Role of the Courts in the Post-Truth World, has been accepted for publication in the Cornell Law Review Online.

Here is an abstract of the piece:

During the administration of President Donald J. Trump, Americans witnessed an unprecedented assault on the truth by Trump and his political allies. Throughout his time in office (and even before), Trump lied to gain and maintain political support.  The biggest Big Lie, of course, was that 2020 election was stolen from him as a result of massive voter fraud in five swing states—Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. All of Trump’s court challenges to the 2020 election based on this lie failed.

Trump’s election lie, although it did not put him back in the White House, has inflicted serious, and now lasting, damage on our democratic institutions. Trump has created a post-truth world where facts no longer matter, thereby eroding trust in all branches of the government, including the courts. For Trump followers, the facts are irrelevant; only what Trump says matters. This view is not limited to Trump’s diehard “base.” Even mainline Republican legislators are embracing the Trump approach. Witness the attempts to reframe the events of January 6 not as a violent and lawless riot but rather simply as a peaceful exercise of free speech—in the face of overwhelming video and testimonial evidence to the contrary. Yet, other than losing his lawsuits, Trump has never been called to account for his baseless and irresponsible attempts to have the courts overturn the results of the 2020 Presidential election.

This essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short-shrift to Trump’s lawsuits but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of baseless claims, including Rule 11 of the Federal Rules of Civil Procedure and the courts’ inherent powers to control proceedings before them, the Trump election lie might well have been put to rest in its incipiency before it could take root among die-hard Trump supporters. This essay also suggests how the courts might more effectively handle future baseless and politically motivated election challenges in the post-truth world.

Edward D. Cavanagh
Professor of Law

September 13, 2021

Allen’s Article Cited by ABA Journal

Today, the ABA Journal cited Professor Renee Nicole Allen’s co-authored article, The ‘Pink Ghetto’ Pipeline: Challenges and Opportunities for Women in Legal Education, in a post about status inequity. The ABA post is available here.

Renee Nicole Allen
Assistant Professor of Legal Writing
Faculty Advisor, First Generation Professionals
Faculty Advisor, Women’s Law Society 
Co-Director, Writing Center
September 9, 2021

Board Diversity Requirements: California, Nasdaq, and More

Professor Cheryl L. Wade is a panelist at a virtual event sponsored by the In-House Counsel Working Group of The Federalist Society. The event takes place today, September 9, 2021 at 1:00 ET. Go to this link for more information about the program.

Cheryl Wade
Professor Cheryl L. Wade
Harold F. McNiece Professor of Law

August 31, 2021

Barrett Essay Pays Tribute to Charles Reich

Professor John Q. Barrett has published an essay, Charles Reich, New Dealer, as part of a special Touro Law Review issue that grew out of Touro Law School’s January 2020 conference commemorating the life and legacy of Charles A. Reich (1928-2019), former Yale law professor, constitutional law scholar, and best-selling author.

Professor Barrett’s essay, paying tribute to Reich’s writings and their friendship, juxtaposes how Reich revered Franklin D. Roosevelt and how Reich sometimes wrote negatively about the New Deal. The explanation, Barrett posits, is that Reich’s criticisms were aimed much more at 1950s government, conformity, and stultification than they were at the 1930s and 1940s years of Roosevelt’s presidency.

The Touro Law Review issue on Charles Reich includes, in addition to Professor Barrett’s essay: an introduction by Rodger Citron, conference organizer and Reich biographer; Charles Reich’s final (or at least his latest) article, Keeping Up: Walking With Justice Douglas; essays and articles by Hon. Guido Calabresi, Harold Hongju Koh, Felicia Kornbluh and Karen M. Tani, Sarah A. Seo, and Raymond H. Brescia; and concluding thoughts by Professor Citron.

For an abstract of Professor Barrett’s essay and to download it, click here.

John Q. Barrett
Professor of Law

%d bloggers like this: