April 14, 2020

Roberts Presents at Online Evidence Forum

Professor Anna Roberts discussed her research into Federal Rule of Evidence (“F.R.E.”) 609, and prior conviction impeachment more broadly, as a guest presenter in an online evidence forum, The Unavailability Workshop, organized by Vanderbilt Law’s Ed Cheng.


Upcoming sessions will feature U.C. Davis’s Edward Imwinkelried on privileges (April 16th) and Fordham’s Dan Capra on F.R.E. 615 (April 23rd).

April 13, 2020

Allen Elected to Serve on Legal Writing Institute Board

Professor Renee Allen has been elected to serve on the Legal Writing Institute board.  The Legal Writing Institute (LWI) is a nonprofit organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources and establishing forums to discuss the study, teaching, and practice of professional legal writing. 2019_renee_allen_0

The LWI Board of Directors establishes LWI’s policies and priorities, and Board members contribute to the planning and operation of LWI’s publications, projects, events, conferences, and workshops. The Board works closely with more than 20 committees made up of volunteer LWI members to carry out these initiatives. Board members serve four-year terms, with about half the members elected every two years.

Professor Allen’s term will start at the LWI biennal conference in DC this summer. She will serve for four years.

April 9, 2020

Roberts’ Article to be Published in the Cardozo Law Review

Professor Anna Roberts‘ article, Victims, Right?, has been accepted for publication in the Cardozo Law Review.  The article focuses on the widespread pre-adjudication use of the word “victim” in criminal legal contexts, a topic made more salient by the current spread of “Marsy’s Law” provisions, which establish victims’ rights both pre- and post-adjudication.


Here is the abstract:

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears before the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is the very thing to be decided. This usage matters in part because of its possible consequences: it risks obscuring and weakening the defense side of our two-sided system. It matters also because of the underlying impulses that it reveals, and that surface in analogous usages such as the widespread pre-adjudication use of “offender.” When channeled into a criminal system these impulses will recur as pre-judgments of crime, in ways that threaten defendants’ constitutional protections. But we can frame and channel them in a more hopeful way. This Article posits that we turn prematurely to the word “victim” in part because of impulses, upon hearing of harm, rapidly to acknowledge and decry it; and that we rush to “offender” because of a concomitant desire for accountability and answers. Abolitionist work provides a model for honoring those impulses through structures other than a criminal system, and criminal language, with which they will inevitably clash.

April 7, 2020

Greenberg’s Article to be Published in the Journal of Criminal Law and Criminology

Professor Elayne Greenberg‘s article, Unshackling Plea Bargaining from Racial Bias, has been accepted for publication in Northwestern’s Journal of Criminal Law and Criminology.  The article is a cross-disciplinary piece about the etiology and remediation of racial bias in plea bargaining.
Elayne One
Here is the abstract:
This article traces the origin of racial bias in plea bargaining by chronicling the historical relationship among three societal developments: the continuation of slavery, the development of our criminal justice system and the evolution of plea bargaining. The article then explains how the structure of plea bargaining as it is practiced today makes it more likely for historical racial biases to fester and manifest themselves. Culling from the research of cognitive psychologists, dispute system design scholars and anti-racism educators, this article prescribes organizational and procedural reforms to unshackle plea bargaining from racial bias.
April 6, 2020

Sovern Co-authors Op-ed, Participates in Conference

Professor Jeff Sovern co-authored an essay in The American Prospect, Placing Consumers at the Forefront of Relief Efforts, with Hofstra Law School professor Norman I. Silber.


Jeff Sovern

As the piece explains:

For the next stimulus package, rather than sending tens of millions of checks to consumers, Congress would do better to strike at the economic crisis by using the existing lending mechanism, right in front of us, that more than three-quarters of us already possess: credit cards. We think that Congress should pass legislation which allow banks on a monthly basis to bill the government for, say, 70 percent of the interest charges on those cards, while requiring banks to defer monthly credit card payments for all consumer cardholders for the length of the coronavirus catastrophe, perhaps as long as six months. We suggest that the benefit be capped at something like $10,000 per consumer as those charges accrue.

Sovern also served as a commenter at the Berkeley Center for Consumer Law & Economic Justice’s Second Annual Consumer Law Scholars Conference on March 5-6. In addition, one of his blog posts was quoted by Law.com in a January 28 article while another was discussed in an industry publication with the headline, “Law Professor Makes Clever Suggestion To Help CFPB Understand Time-Barred Debt Disclosures.”

March 30, 2020

Joseph’s Book Reviewed in NY Times, London Review of Books, and Commonweal

Professor Lawrence Joseph’s book A Certain Clarity: Selected Poems was reviewed in The New York Times Book Review on March 17. In “Thinking About Empire and Economy, With a Lawyer’s Mind and a Poet’s Words,” Paul Franz writes:  “An intensely realized, intimate epic of modern American life . . . A Certain Clarity is a major work of American art.”

larry joseph photo

A Certain Clarity was also reviewed in the March 19 issue of the London Review of Books by Michael Hofmann, who, in “On Lawrence Joseph,” writes: “Joseph has written five books of his stark and beautiful poems . . . Almost uniquely among contemporary American poets, Joseph doesn’t retail privities, doesn’t chase the miniscule scraps of sublimity left to us, doesn’t return to his literal or figurative cabin in the woods.”

Also, a feature on Joseph’s life and work by Anthony Domestico appeared in Commonweal on March 17. In “The Inexhaustible Poetry of Lawrence Joseph,” Domestico writes: “Since 1983, Joseph has been publishing books of poetry that, in their formal control and moral witness, match anything published in the past half-century . . . The range of Joseph’s writing  in this book, and throughout his career, is awesome.”

March 24, 2020

Perino’s Article to be Published in Washington & Lee Law Review

Professor Michael Perino‘s article, Real Insider Trading, has been accepted for publication in the Washington & Lee Law Review.  The article presents novel empirical research about how insider trading is enforced on the ground.


Below is the abstract::

In popular rhetoric, insider trading cases are about leveling the playing field between elite market participants and ordinary investors. Academic critiques vary. Some depict an untethered insider trading doctrine that enforcers use to expand their power and enhance their discretion. Others see enforcers beset with agency cost problems who bring predominantly simple, easily resolved cases to create the veneer of vigorous enforcement. This debate has, to this point, been based mostly on anecdote and conjecture rather than empirical evidence. This article addresses that gap by collecting extensive data on 465 individual defendants in civil, criminal, and administrative actions to assess how enforcers operationalize insider trading doctrine. The cases enforcement authorities bring are shaped by a complex and cross-cutting set of institutional and individual incentives, cognitive biases, legal requirements, the history of failed enforcement efforts, and the way in which the agency and the self-regulatory organizations deploy their investigatory resources. SEC enforcement is dominated by small stakes, opportunistic trading by mid-level employees and their friends and family, most often involving M&A transactions. Those cases settle quickly, half within 30 days of filing. Criminal enforcement is generally reserved for more serious cases, measured by, among other things, the type of defendant, the size of the insider trading network, and the profits earned. In both settings, there is little evidence that enforcers are systematically stretching the boundaries of insider trading doctrine.

March 19, 2020

Krishnakumar’s Article to be Published in NYU Law Review

Professor Anita S. Krishnakumar‘s article, Cracking the Whole Code Rule, has been accepted for publication in the NYU Law Review.  The article provides a part-empirical, part-doctrinal analysis of how the U.S. Supreme Court uses cross-statute comparisons to determine the meaning of the statute at issue in a case.


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 it is necessary to harmonize two related statutes with each other.

March 18, 2020

Evans’ Article to be Published in the Columbia Law Review

Professor Sheldon Evans’ article, Categorical Nonuniformity, has been accepted for publication in the Columbia Law Review.


Here is the abstract:

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, however, the categorical approach produces the opposite. By examining the categorical approach in the criminal sentencing and immigration contexts, this Article shows that relying on state criminal elements has produced nonuniformity due to the variations of state law.

This Article examines and proposes remedies for the categorical approach’s nonuniformity problem. Although the Supreme Court has itself attempted to resolve this problem by deciding nearly twenty cases in the past twelve years with even more cases on its current docket, nonuniformity prevails. And while scholars are increasingly weighing in, this Article contributes to the literature by applying different theories of uniformity that juxtaposes the ideals of nationwide uniformity with the potential benefits of nonuniformity. This novel analysis supports at least two paths forward. First, if uniformity is to be prioritized, the elements-based categorical approach must be fundamentally redesigned to properly accomplish this goal. But given the difficulty of achieving genuine nationwide uniformity, keeping the elements-based categorical approach may be justified, albeit under a different theoretical framework that acknowledges the benefits of nonuniformity among states within a federalist system of government.

March 17, 2020

Boyle Signs Contract with Walters Kluwer, Publishes Article in IJCAM, and Places Book Review in IJCAM

Professor Robin Boyle has signed a publishing contract with Wolters Kluwer to provide its forthcoming segment on contract drafting questions for its online series called Connected Quizzing.  Connected Quizzing is a formative assessment tool for law students and professors available on CasebookConnect.com, covering a wide range of law school topics.  Contract Drafting will be a new topic for the series.
BoyleProfessor Boyle’s article, Preventing Predatory Alienation by High-Control Groups:  The Application of Human Trafficking Laws to Groups Popularly Known as ‘Cults,’ and Proposed Changes to Laws Regarding Federal Immigration, State Child Marriage, & Undue Influence, was accepted for publication in the upcoming inaugural issue of the International Journal of Coercion, Abuse, and Manipulation (IJCAM) (Summer 2020) (peer-reviewed).  The paper reflects feedback she’s received from presenting on topics of human trafficking and the Nxivm case at an International Cultic Studies Conference in Manchester, UK, last summer; she also incorporated valuable feedback from her presentation on undue influence at a think tank last Fall – Harvard Medical School, Program in Psychiatry & the Law.

In addition, Professor Boyle’s book review for a nonfiction book titled, Scarred: The True Story of How I Escaped NXIVM the Cult that Bound My Life, Author: Sarah Edmondson, is slated for publication also in IJCAM’s inaugural issue.

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