About Seton Hall Law

Professor Barbara Moses

Professor Barbara Moses On EBRU TV on Video Recording of Police

December 19, 2012

Professor Barbara Moses, appeared on EBRU TV, broadcast to 11 million people worldwide, in a feature interview regarding the right to video record police officers.

Professor Barbara Moses of the Center for Social Justice appeared on EBRU TV, broadcast to 11 million people worldwide, in a feature interview regarding the right to video record police officers. In the interview, Professor Moses – who recently came to a settlement with the Newark Police in a case involving the detention of an honor student for video recording police with her cell phone, talked about the First Amendment right and some notable limitations.

See the full feature interview on EBRU TV.

Center for Social Justice

Center for Social Justice Reaches Settlement with Gov’t for ‘ICE Raids’

December 17, 2012

The Center for Social Justice has reached a settlement with the government in the ‘ICE Raids case.’ The settlement was featured in the Star Ledger, Bloomberg BusinessWeek, AP, Univision (web and TV), Fox News Latino and Telemundo.

The Center for Social Justice has reached a settlement with the government on behalf of its clients in the “ICE Raids case.” The case, first brought in 2008, challenged the federal government's practice of raiding immigrants' homes, and has been featured in media such as the New York Times, Star Ledger, and the Associated Press throughout its pendency. News of the case settlement was featured in the Star Ledger, Bloomberg BusinessWeek, AP, Univision (web and TV), Fox News Latino, Telemundo and a host of other English and Spanish speaking media.

Center for Social Justice professors along with Seton Hall Law students teamed up with the Center for Constitutional Rights and Lowenstein Sandler PC on the case. Details on this major litigation, including briefs and prior media coverage, can be found here http://law.shu.edu/ProgramsCenters/PublicIntGovServ/CSJ/ICE-Raids-cases.cfm

Bloomberg BusinessWeek:

Barbara Moses, the director of the Civil Rights and Constitutional Litigation Clinic at Seton Hall University Law School, said students at the law school worked on the case for years. She said the raids had been part of ICE's Operation Return to Sender, a program she said had been problematic because agents were given arrest quotas.

"When you have quotas and are allowed to count toward your quota folks who aren't on your target list, that's a recipe for overreaching," Moses said.

Moses added she believed the settlement, a similar suit settled in Connecticut and a pending suit in New York had contributed to changes in the way ICE conducts immigration raids.

The Star Ledger:

"Sleeping while Latino is not a crime," said Baher Azmy, Center for Constitutional Rights Legal Director, who began the litigation while at Seton Hall Law School. "Agents cannot lie or force their way into people’s homes in the middle of the night, point guns at children and use force, all without a warrant or consent. This settlement provides accountability for discriminatory policing by immigration officials and shows that ICE is subject to the same restrictions as every other law enforcement agency."

Read the Star Ledger article, “Eight N.J. residents to receive nearly $300K after settling with feds over immigration raids”

Read the Bloomberg BusinessWeek article, “NJ residents reach settlement on feds' home raids”

Read the Univision article (Spanish), “Inmigración de EEUU indemniza a residentes en NJ”

Read the Latino Fox News article, “US Government Reaches Settlement with Immigrants Over Improper Home Raids”

Read the NJ 101.5 article, “NJ Residents Reach Settlement on Unlawful Raids”

Read more about the ICE Raids case”

Investor Advocacy Project

Investor Advocacy Project Featured in The Record

December 14, 2012

Seton Hall Law’s Investor Advocacy Project, which offers free legal services to investors who have a dispute with an investment professional and are unable to obtain legal counsel, was the subject of a feature story in The Record.

The Record:

Retired carpenter John Rakoski invested $100,000 a few years ago in a real estate investment fund, hoping his lifelong savings would earn money to support his retirement.

But when he later tried to redeem his money, the investment firm wouldn’t let him, he says. He considered legal action, but was advised that complex securities litigation could cost him tens of thousands of dollars that he didn’t have.

That’s when he found help free of charge from attorneys and law students at Seton Hall University School of Law, which runs a clinic to help small-scale investors like Rakoski.

“It’s hard to describe how good it felt,” said Rakoski, 72, who contacted the clinic in September. “At least something is being done so we can get our money.”

The Investor Advocacy Project, the only clinic of its kind in New Jersey and one of less than two dozen nationwide, represents investors with limited means to hire attorneys — those whose investments do not exceed $100,000.

Read more in The Record, “Seton Hall clinic helps small-scale investors locked in disputes”

Research Fellow & Lecturer in Law Kate Greenwood

Research Fellow & Lecturer in Law Kate Greenwood in a Featured Op-ed in Pharmalot on the U.S. Supreme Court and Liability for Defects in Generic Drugs

December 10, 2012

Research Fellow & Lecturer in Law Kate Greenwood published a Featured Op-ed in Pharmalot on the U.S. Supreme Court and the prospect of liability for personal injury from defects in generic drugs. In “Betting on Liability for Generic Defects,” Ms. Greenwood writes:

As reported on Pharmalot, the US Supreme Court has agreed to review the First Circuit Court of Appeals’ decision in Mutual Pharmaceutical Company v. Bartlett that federal law did not preempt a New Hampshire jury’s determination that the generic drug sulindac had a “design defect” and so should have been recalled (back story with briefs).

It is highly likely that the Supreme Court will reverse the First Circuit’s decision, and, in so doing, confirm that manufacturers cannot be held liable for failing to re-design or recall unsafe generic drugs, just as they cannot be held liable for failing to update the labeling of such drugs. The ball will then be in Congress’ court to fill the resulting postmarketing safety gap.

As the First Circuit explained in the Bartlett decision, New Hampshire law provides that a drug has a design defect “‘if the magnitude of the danger outweighs the utility of the product.’” At trial, plaintiff Karen Bartlett’s expert testified that sulindac met this standard and the jury agreed, finding Mutual Pharmaceutical liable for selling a product with a defective design and awarding Bartlett over $21 million for the horrific SJS/TEN-related injuries she suffered after taking sulindac.

Read more in the feature Op-ed, “Betting on Liability for Generic Defects.”

Professor Paula Franzese

Professor Paula Franzese In the New York Times and Philadelphia Inquirer on Aspects of Property Law in the Wake of Sandy

December 03, 2012

Professor Paula Franzese appeared in the New York Times and the Philadelphia Inquirer regarding dune easements and the prospect of eminent domain along the New Jersey shoreline and government responsibility for gated communities in the wake of Hurricane Sandy.

In the Philadelphia Inquirer, the article looked at easements required of property owners along the shoreline necessary to construct dune barriers designed to obstruct tidal surges but which would also obstruct the unfettered view of the ocean, a property right. The Inquirer writes:

In March, a state appellate court upheld a $375,000 judgment compensating a Long Beach Island couple for their lost view after the borough of Harvey Cedars seized a portion of their property to build dunes.

Multiply that by all the homes that line the coastline and the cost to municipalities would be prohibitive.

Paula A. Franzese, a law professor at Seton Hall University who has followed the issue, said that while government's right to take land for shore protection is well-established, the question of how to acquire large blocks of high-priced property for the public good remains unanswered.

In California, efforts to use a fixed scale to set government compensation to coastal homeowners forced off their land by mudslides and other natural disasters have met with lawsuits by those who said the rate does not reflect market value.

"It may well be that this storm pushes the court to finally reassess the question of valuation," Franzese said. "You have to add in the environmental stakes. If the dunes are not built to adequately repel the next surge, that will cause immense harm, economically and environmentally, for the homeowners and the greater populace."

The New York Times article regards the relative rights and responsibilities of so called “gated communities” and government – whether municipal, state or federal – where the communities in question have bargained for the ability to have their streets “delisted” from the town rolls, by essentially privatizing portions of community infrastructure such as street and sewer maintenance. In being “delisted,” or essentially privatized to some degree, gated communities often gain the ability to exclude non-residents from their neighborhood streets.

With the advent of Hurricane Sandy, however, a number of gated communities have sought governmental aid for their clean up and rebuilding efforts.

“Now, with this unexpected act of God, those same communities, quite ready to point a finger at government shortcomings, are placed in the difficult position of having to reach out to government for a substantial helping hand,” said Paula A. Franzese, a law professor at Seton Hall University who has written extensively about gated communities.

In the article, which focused on a number of gated communities in New York City’s five boroughs, the Times noted that although unsure of the exact number, there were “at least eight.” The Times further noted that

“More suburban New Jersey has about 6,000 private communities, said Professor Franzese.”

Read the Philadelphia Inquirer article, “Shore towns near showdown with dune-building foes”

Read the NY Times article, “Enclaves, Long Gated, Seek to Let In Storm Aid”

Professor Jenny Carroll

Professor Jenny Carroll In Hollywood.com on Lindsay Lohan’s Latest Arrest

November 30, 2012

Professor Jenny Carroll appeared in Hollywood.com regarding the implications of Lindsay Lohan’s latest arrest on her prior probation arrangement and what these newest charges may mean going forward procedurally. Professor Carroll was quoted at length in the article which starts:

An orange jumpsuit may once again be in Lindsay Lohan's future. The Liz and Dick star's latest arrest and charges — one a misdemeanor assault charge associated with a fight she had with a woman at a New York City night club on Thursday, and three others misdemeanors associated with her June car crash in Santa Monica, Calif. — could mean more jail time for Lohan. Jenny Carroll, Associate Professor of Law at Seton Hall University School of Law who specializes in criminal law and criminal procedure but has no affiliation with Lohan's case, tells Hollywood.com that Thursday's arrest could cause a judge to modify the 26-year-old's informal probation, perhaps sending her back behind bars.

Read the full Hollywood.com article, “Could Lindsay Lohan's Latest Arrest Put Her Behind Bars?”

Professor Robert Martin

Professor and former New Jersey State Senator Robert Martin in the Star Ledger on the difficulty of property tax assessments in the wake of Hurricane Sandy

November 26, 2012

Professor and former New Jersey State Senator Robert Martin appeared in the Star Ledger regarding the difficulty of property tax assessments in the wake of Hurricane Sandy. The article notes that towns, which rely in large part upon property tax payments for funding, will be hard pressed to make up the difference in their budgets as many houses which were either destroyed or substantially damaged in the storm may now be reassessed for tax purposes at lower rates. It is believed that 60,000 houses in Ocean and Monmouth counties alone may be reassessed in the next few weeks. The Ledger writes:

Bob Martin, a professor at Seton Hall University School of Law and a former state senator, called Sandy’s devastation "a crisis. In some towns, the funding pipeline has essentially been broken. You can’t have half of your houses off the tax roll."

How much FEMA aid will be available to municipalities to help close the gap hasn’t yet been determined. 

"Municipalities need a Santa Claus," said Martin. "And the only Santa I see with that ability is the federal government."

Read the Star Ledger article, “Tax assessors left with uphill climb after Hurricane Sandy”

Center for Social Justice Settles Lawsuit

November 19, 2012

The Center for Social Justice Civil Rights and Constitutional Litigation Clinic, under the leadership of Professor Barbara Moses and working with the ACLU, reached a settlement with the City of Newark on behalf of Khalia Fitchette, the high school honor student who was illegally detained by police for using her cell phone to record an incident on a public bus in 2010. Ms. Fitchette is now a sophomore at Cornell University.

A number of Seton Hall Law students, including Rahool Patel '12, Kathy Trawinsky '12, Dustin Stark '12, Caroline Oks '12 and Gregory Cororan '13, worked on the case from its onset in 2010 to its settlement. In addition to a monetary settlement of an undisclosed amount, after the onset of Fitchette’s lawsuit, the Newark Police Department issued a training memorandum that affirms the rights of citizens to record police officers performing their duties and makes clear that officers cannot confiscate, delete, or demand to view a citizen’s photos or video without a warrant. The department will train officers on the new policy.

CBS reports,

“We are pleased that the Newark Police Department has adopted a policy that clearly articulates and respects the constitutional rights of citizens to record police activity,” said Seton Hall Law Professor Barbara Moses, who, along with Seton Hall Law students, represented Fitchette with the ACLU. “We hope this policy prevents incidents like the one involving Khaliah Fitchette from ever happening again.”

Read the Star Ledger article, “Newark police settle case with teen illegally detained for filming cops”

Read the CBS article

Read the Press Release, “Newark Police Settles Lawsuit Over the Arrest of Teen with Cellphone Video”

Read past features on CSJ’s work in the Khalia Fitchette case

Professor Jenny-Brooke Condon

Professor Jenny-Brooke Condon On Citizens United on EBRU Today TV

November 16, 2012

Professor Jenny-Brooke Condon appeared on Ebru Today TV, broadcast to 11 million people worldwide, in a feature interview regarding the U.S. Supreme Court’s decision in Citizens United.

In the interview, Professor Condon notes that

For the majority of the Court which has historically espoused the principle of judicial restraint, there is lots of evidence that the Court went out of its way to protect the rights of corporations. And also, did so in violation of, or without regard for, its own recent precedent – which is a principal that the Court normally holds in very high regard, but in this case, disregarded.

See the full feature interview on EBRU Today TV

Professor John Jacobi

Professor John Jacobi, Featured in The Record & NJ Spotlight on Health Insurance Exchanges

November 15, 2012

Professor John Jacobi published a feature Op-ed in The Record and appeared in NJ Spotlight regarding the implementation of health insurance exchanges in New Jersey. In The Record, Professor Jacobi notes that,

Through exchanges, individuals and small businesses will be able to select insurance coverage armed with easily understood comparators of price, coverage, quality and consumer service. Exchanges will also create a “no wrong door” enrollment system, linking consumers to public programs and subsidies. Recent events have removed the biggest political barriers to the exchanges’ creation.

New Jersey now has a choice: It can create its own exchange, create an exchange in partnership with the federal government or cede responsibility (and authority) for the exchange entirely to the federal government.

New Jersey’s history of health insurance innovation counsels that we create our own exchange, taking advantage of our past innovations and forging our own path for future success.

With the deadline at hand, a temporary reprieve of sorts was granted for states (including New Jersey) which had not yet submitted their letter of intent and application to the federal government to operate their own exchanges. NJ Spotlight notes that,

US Health and Human Services Secretary Kathleen Sebelius wrote that states could submit both a letter of intent and an application to operate their own exchanges by December 14 -- rather than the original November 16 deadline.

And that:

“[Governor]Christie said on Friday that his decision on whether to have a state-run exchange would hinge on the Obama administration's answers to Republican governors on exchange costs, according to the Associated Press.

The Republican Governors Association submitted a letter in July with 17 questions about the exchanges and 13 questions about the proposed expansion of Medicaid.

The letter included questions about potential costs of state-federal partnerships; how federally run exchanges will operate; and how the administration plans to pay for exchanges when Republican members of Congress have said they would block funding.

Virginia Gov. Bob McDonnell, the outgoing RGA chairman, reiterated his request for responses to those questions in a letter earlier this month.

Sebelius wrote in her letter that federal officials would be providing more information about the healthcare law “in the coming days and weeks, and our team will do everything possible to answer questions and provide technical assistance to state leaders.”

NJ Spotlight further explained,

Seton Hall University health law professor John V. Jacobi noted that the deadline postponement was in keeping with the federal government’s approach to working with state officials on the healthcare law. McDonnell had asked for a delay in the deadline.

“I think in many states there was a bit of a moratorium as everyone waited to see what was going to happen in the November elections,” Jacobi said, adding that the Obama administration is more focused on “trying to get the reforms moving forward than on having their feelings hurt” by Republican criticism.

Read the feature Op-ed in The Record, “For New Jersey, health insurance exchanges offer opportunity”

Read the NJ Spotlight article, “Federal Responses May Determine Christie Decision on Health Exchanges”

Professor Mark Alexander

Professor Mark Alexander, a former Senior Advisor to President Barack Obama, on PBS TV regarding the presidential election and expectations for a second term

November 08, 2012

Professor Mark Alexander, a former Senior Advisor to President Barack Obama when he sought election in 2008, was interviewed on PBS TV regarding the most recent presidential election and expectations for a second term.

See the PBS TV interview here http://watch.njtvonline.org/video/2302181274

Professor Stephen Lubben

Professor Stephen Lubben, In the NY Times, and Cited by both Republicans & Democrats of the House Financial Services Committee

November 06, 2012

Professor Stephen Lubben appeared in the New York Times’ DealBook and was cited in separate reports released by the House Financial Services Committee Chairman, Spencer Bachus- R, and Ranking Member, Barney Frank-D, regarding Dodd Frank, “Too Big to Fail,” and the Wall Street Reform and Consumer Protection Act.

The report from Chairman Bachus is critical of the power conveyed in Dodd-Frank and what is said to be an inability to appropriately address “too big to fail; it cites and highlights Professor Lubben’s testimony before Congress regarding orderly liquidation:

“What the orderly liquidation authority does allow [the government] to do . . . is bail out the counterparties to [a failed] financial institution, so not unlike the treatment that Goldman Sachs got with regard to AIG.”

- Stephen J. Lubben 

Daniel J. Moore Professor of Law, Seton Hall University School of Law Hearing of the Subcommittee on Financial Institutions and Consumer Credit June 14, 2011

The report released by Ranking Member Franks similarly cites Professor Lubben’s testimony, but does so in support of its argument in favor of Dodd-Frank’s orderly liquidation authority given its engendered speed and liquidity:

“Although Professor Lubben was not uniformly supportive of the Orderly Liquidation Authority, he did commend its speed and liquidity features and opined that they were an improvement over existing bankruptcy.”

The report further cited Professor Lubben’s approval in his testimony for the following propositions, and by extension, the pertinent provisions of Dodd-Frank:

“[Debtor in Possession] DIP financing, which is used to sustain a firm’s activities during its liquidation or restructuring under current bankruptcy law, is critical to a successful bankruptcy – without it, the firm’s operations are effectively shut down immediately, without regard to the value of the firm or the importance of its operations to the financial system. DIP financing was not readily available during the financial crisis, however, and similarly would not be available in the future if a complex financial institution failed during a period of economic stress and illiquid markets. It is unlikely that DIP financing could be arranged even in good times in a sufficient amount and within a sufficiently short time to facilitate a controlled bankruptcy that does not have broader systemic effects.”

Finally, in his regular column in the Times’ DealBook, Professor Lubben examines restructuring and the impact of credit default swaps and notes that

“It is also possible that the holder of a large, speculative swap position could acquire a position in a distressed firm’s traded debt to block a potential workout. After the onset of financial distress, it could be that the cost of such a blocking position on the distressed debt market would be justified given a sufficiently large credit-default swap position.

Indeed, if the market for credit-default swaps is made up mostly of speculators, as seems likely, the above situation, or something like it, might be the most plausible. After all, it is unclear how many buyers of credit-default swaps actually use them to hedge ordinary bonds.

This is part of the phenomenon called the “empty creditor” problem by Professors Henry T.C. Hu and Bernard S. Black.

Dodd-Frank did not even attempt to address this issue, so how might be that be accomplished?”

Read Financial Services Committee Chairman Spencer Bachus’ Report, “The Dodd-Frank Act and the Persistence of ‘Too Big to Fail’”

Read the Report released by the Financial Services Committee Ranking Member Franks, “The Financial Crisis and ‘Too Big to Fail’”

Read the New York Times’ DealBook column, “Restructurings and the Impact of Credit-Default Swaps”

Brian Jacek '13

Brian Jacek ‘13 Featured Op-ed in the Star Ledger on Immigration Law Reform

October 21, 2012

Brian Jacek, a Center for Social Justice Scholar in the Immigrants’ Rights/International Human Rights Clinic, was featured in the Star Ledger regarding his work with the Center and the need for Immigration Law reform.

Jacek writes:

Maria walked into the conference room with a warm smile and a bag filled with what seemed to be her entire life.

She greeted me in perfect English as she unloaded countless papers, pictures and mementos and placed them on the table in front of us. I could tell immediately that my preconceived notions would be shattered that day. And since then, as a law student working with Seton Hall Law School’s Center for Social Justice, my clients have repeatedly challenged me to think differently.

Read the Star Ledger feature Op-ed, “Undocumented immigrants defy labels, stereotypes”

Visiting Clinical Professor Kyle Rosenkrans

Visiting Clinical Professor Kyle Rosenkrans in the Star Ledger

October 21, 2012

Visiting Clinical Professor Kyle Rosenkrans appeared in the Star Ledger, having given background analysis and comment regarding disparate impact under the Federal Housing Act in a New Jersey redevelopment zone case – which may well be heard by the U.S. Supreme Court.

The case involves Mount Holly Gardens in Mount Holly Township, New Jersey. Mount Holly Gardens was declared “blighted” and in need of redevelopment by the Township in 2002. Many residents have fought the designation, choosing instead to stay in their homes though most around them have accepted buyouts of their property and left the 30-acre development which, at the time it was named a redevelopment zone, was said to be home to a disproportionate number of the Township’s black and Hispanic residents.

The suit filed against the Township regarding disparate impact under the Federal Housing Act may have wide-ranging implications. The Ledger writes:

What’s before the Supreme Court, should it agree to hear the case, is bigger than the Gardens or Mount Holly. It could decide whether unintended discrimination — or disparate impact — is illegal under the Fair Housing Act. Despite decades of court opinions recognizing disparate impact, some argue the law lacks specific language supporting the doctrine.

“It’s a question of statutory interpretation with huge consequences,” said Kyle Rosenkrans, visiting clinical professor at Seton Hall University School of Law’s Center for Social Justice. “If the court sides with the township, that will have an enormous impact on housing-related civil rights litigation,” he said.

Disparate impact occurs when a government policy affects a greater number of minorities than non-minorities, even though it isn’t the policy’s intent. Every state court said Mount Holly had the right to declare the Gardens in need of redevelopment, but they didn’t address the unintended discrimination under the Fair Housing Act.

Read the Star Ledger article, “Mount Holly and a citizens' group may be headed to nation's top court.”

Professor Jenny Carroll

Professor Jenny Carroll In Truthout.org, ‘Dispatch from GTMO’

October 20, 2012

Professor Jenny Carroll, Co-Director of Seton Hall Law’s Transnational Justice Project, traveled to Guantanamo Bay, Cuba, to report on the military commission detainee hearings of Khalid Sheik Mohammed, and offered her observations in Truthout.org on process and procedure amidst larger constitutional concerns.

Professor Carroll writes:

All this week, the motions hearings for the 9/11 detainees are proceeding before the military commission at Guantanamo Bay, Cuba. While I will not endeavor to reiterate every argument on each motion, I do think it is important to take a more long-range look at the motions themselves (in several groupings), and to at least begin a discussion of the persistent and underlying questions that have plagued this commission seemingly from their inception: are they fair, or even capable of being fair? What would a fair process look like, and why does it matter so much?

As the parties spend the week - and likely, the next several years - debating these questions, the answers seem to lie in the procedural safeguards that the law promises those who are suspected or accused of a crime by the government. This promise of due process serves two masters. The first is the individual who is suspected or accused. The Constitution, and all the rights enshrined therein, persists even in the face of an all-powerful government. But due process serves each of us, as well. For the rest of society, the process afforded a defendant ensures that the ultimate result of the government's suspicions or accusations - which it pursues in all of our names - will be fair. The process legitimates the outcome. To paraphrase the parties themselves, justice is not any particular outcome; it is a method by which the outcome was achieved.

Read the Truthout article “Why Process Matters in the Military Commission at Guantanamo Bay”

Professors Jonathan Hafetz and Mark Denbeaux On Due Process TV Regarding Habeas Corpus and the War on Terror

October 14, 2012

Professors Jonathan Hafetz and Mark Denbeaux appeared on the award winning PBS television show Due Process to discuss Habeas Corpus and how the Great Writ has fared in the face of the War on Terror.

Professor Hafetz, author of Habeas Corpus after 9/11: Confronting America's New Global Detention System, NYU Press (2011) and The Guantánamo Lawyers: Inside a Prison, Outside the Law, NYU Press (2009) (co-edited with Mark Denbeaux), noted that

…If you’re a nation that is going to abide by the rule of law, power has to be constrained. And executive power, and particularly executive detention, needs to be constrained by the legal rules and a judicial check. What we have with Guantanamo detention is, in a sense, a throwback to centuries ago: if you can picture, the King locking people in the Tower with no charges, no access to a lawyer, no trial, and being subjected to brutal conditions. Habeas Corpus emerged from these circumstances to provide some kind of check say ‘maybe the King can detain you—but he has to go before a judge.

See the full Due Process episode, “Habeas Now”

Professor Rachel Godsil

Professor Rachel Godsil, featured Op-ed in the LA Times on ‘Deeply Flawed’ Research Regarding Affirmative Action

October 09, 2012

Professor Rachel Godsil published an Op-ed piece in the Los Angeles Times regarding the ‘deeply flawed’ research on affirmative action which posits a harm experienced by the beneficiaries of preference.

Professor Godsil writes:

Two new voices have entered the fray to criticize affirmative action. Richard Sander and Stuart Taylor have been ubiquitous in recent weeks on panels, talk shows and in their Times Op-Ed article Sunday, "Do race preferences help students?" They claim to bring a new story to the affirmative action debate in which their concern is the beneficiaries, and their contribution is empirical. The story they are telling is that black and Latino students have been harmed rather than helped, their legal and scientific careers curtailed by the "preference" that led them to attend a highly selective law school or college.

Scholars who have examined the research virtually all of it by Sander himself -- have found it deeply flawed. It contradicts the mountain of evidence that minority students who attend selective law schools and colleges tend to be more likely to graduate and to have higher earnings than those who attend less selective schools.

Read the full feature in the Los Angeles Times, Affirmative action and the unprepared minority myth.

Professor Jessica Miles in Forbes on Fees Charged by Phone Service Companies to Block Harassing Calls

September 27, 2012

Professor Jessica Miles, who teaches in the Center for Social Justice Family Law Clinic as well as courses in Domestic Violence and the Law, and Persuasion & Advocacy, appeared in Forbes regarding the practice of a number of mobile phone service providers — charging fees to block calls from particular phone numbers. The Forbes article states:

Concerned, I called up Jessica Miles, an assistant clinical professor at the family law clinic at Seton Hall University School of Law, and an expert on domestic violence-related legal issues. She agreed that the fees appear to create an unnecessary hurdle — especially when one considers that it costs the phone companies nearly nothing to block numbers.

"The company is requiring a crime victim to pay to avoid further harassment or abuse," Miles told me. "Requiring payment for safety is particularly problematic since research indicates that domestic violence disproportionately impacts low-income families."

Read the full Forbes article, How Mobile Carriers Are Making Customers Pay For Safety

Professor Margaret Lewis

Professor Margaret Lewis

September 23, 2012

Noted Chinese Law expert and Term Member of the Council on Foreign Relations, Professor Margaret Lewis appeared in the China Law & Policy blog for a feature two part interview regarding the newly revised Chinese Criminal Procedure Law. The revisions, which China Law & Policy noted “were ostensibly designed to bring China more in line with the rest of the world, providing greater rights to criminal suspects and defendants,” are scheduled to take effect on January, 1 2013.

In the interviews, Professor Lewis “explains the background to China’s Criminal Procedure Law, the different stakeholders who influenced the recent revisions, a confusing new ‘right’ against self-incrimination and the new provisions to limit confessions obtained through torture” as well as “the inclusion and legalization of the public security’s use of residential surveillance.”

Regarding the prospect of an increase in live witness testimony under the revised CPL, Professor Lewis notes:

Although we don’t have an official statistic, I regularly hear that witnesses appear in less than 10% of cases, and even that is likely being generous. The more common practice is to read written statements that witnesses gave to the police or prosecutors. Once when visiting a court in China, the group I was with toured an empty courtroom. It was beautiful: beautiful polished wood, it was gorgeous. The judge giving us the tour pointed out where the defendant would sit and where the lawyers would sit. We asked, “Where does the witness sit?” There was an awkward pause and then it was said, “Well, a chair would be brought up here for the witness.” But it was clear that this was not common practice. Again, hopefully that will change but, to date, witnesses have played a very limited role when it comes to the actual trial process.

Read and/or listen to Part 1 of the China Law & Policy interview, Margaret K. Lewis: What to Expect with China’s New CPL

Read and/or listen to Part 2 of the China Law & Policy interview, Who Will Be Watched: Margaret K. Lewis on China’s New CPL & Residential Surveillance

Professor Stephen Lubben

Professor Stephen Lubben in the New York Times’ DealBook on ‘safe harbors’ in the bankruptcy code for derivatives.

September 11, 2012

Professor Stephen Lubben, who writes a regular column for The New York Times’ DealBook, wrote recently on “safe harbors” in the bankruptcy code for derivatives, noting that such, as presently configured and recently adjudicated, constitute a form of “subsidy” for the derivatives industry.

Professor Lubben writes:

I have written before about my opinions regarding the “safe harbors” in the bankruptcy code. These are the provisions that exempt derivatives and repo contracts from the automatic stay, the prohibition on termination of contracts with the debtor, the prohibition on constructively fraudulent transfers and the prohibition on obtaining preferential treatment on the eve of bankruptcy.

In general, I think the current safe harbors are too broad and amount to little more than a subsidy to the derivatives industry. Similar provisions protect “securities contracts,” and open up the argument that any transaction that occurs in the general vicinity of a broker-dealer is immune from the normal rules of bankruptcy.

Maybe Congress wants to subsidize the industry, but it probably should stop pretending that these provisions are vital to protect mom, apple pie and the American economy from systemic risk. You could do that with narrower provisions, as I have shown.

My latest concern with regard to the safe harbors is not so much the statutory provisions, but the role that courts have come to play in expanding the provisions beyond their already broad statutory language.

Read the full NY Times article, Too Much Protection for Derivatives in Bankruptcy

Professor Michael Risinger

Professor Michael Risinger in Pacific Standard magazine on questionable forensics as an impediment to appropriate adjudication.

September 06, 2012

Professor Michael Risinger appeared as part of a Pacific Standard article, “Red Flags: Early Warnings of Wrongful Convictions,” which looks at research and analysis regarding some of the ways in which wrongful convictions occur. Noting that despite the “fetishized infallibility” of forensic science on TV shows such as “CSI,” a number of supposed crime sciences have very recently fallen out of favor, with some being dismissed as “junk science.” The Pacific Standard article:

At Seton Hall University’s law school, D. Michael Risinger addressed forensic science’s “problem children” in a 2009 paper looking at the NAS [National Academies of Science] recommendations’ future. As he wrote:

“The principles relied upon by such techniques are not the products of science, as that term is currently understood, but rather the product of a kind of commonsense generalization derived from experience with the subject matter under examination. Neither the generalizations so derived nor the accuracy of the results arrived at by the practitioners of these disciplines, have ever been subject to the kind of systematic testing that has come to be expected as a part of anything calling itself science. This does not mean that the results arrived at are necessarily always in error, but simply that we have no very good evidence about when they are likely to be in error, and when they are likely to be accurate.”

Read the full Pacific Standard article, Red Flags: Early Warnings of Wrongful Convictions.

Read Professor Michael Risinger’s 2009 article, The NAS Report on Forensic Science: A Glass Nine-Tenths Full (This is About the Other Tenth)

Professor Jenny Carroll

Professor Jenny Carroll in Truthout.org, 'Dispatch from GTMO'

August 29, 2012

Professor Jenny Carroll, Co-Director of Seton Hall Law’s Transnational Justice Project, traveled to Guantanamo Bay, Cuba, to report on the Military Commission detainee hearings, and offered her observations in Truthout.org on process and procedure amidst larger constitutional concerns.

Professor Carroll writes:

It has been nearly four years since President Barack Obama promised to close the Detention Camps at Guantanamo Bay. The camps remain along with a score of lingering questions.

On August 20, like so many observers before me, I boarded a flight at Andrews Air Force Base in the hopes of witnessing the Military Commissions in action. Ostensibly, I was going to watch a series of hearings over a nine-day period involving motions in the 9-11 conspirators case. And while Mother Nature had other plans (the hearings were cancelled thanks to the imminent arrival of tropical storm Isaac), the motions filed give some indication of the hard road ahead.

The motions fall into several categories, but are unified by a centralized theme: can justice be achieved in a system besieged with allegations that it is shrouded in every sense in secrecy and inequity? If transparency and the ability to engage in zealous advocacy is the currency of legitimacy in Article III civilian courts, how can these Commissions—with their presumptive classifications, requirements for the defense to seek the aid and approval of the prosecution in procuring witnesses, and wildly disparate resources between the two sides—possibly produce anything resembling a fair conclusion? Or are the proceedings an entirely different animal in which the proper comparison is to court martial proceedings and not to civilian courts at all? These questions inevitably haunt the hybrid system Congress created. In rejecting both the Article III court system and the court martial process, Congress created a no man's land of judicial uncertainty and procedural limbo and left these Commissions to sort out the appropriate process for these cases. As Judge Pohl, and the litigants, struggle to define the proper procedure in this hybrid system, the motions filed in the last few months push questions of the process's legitimacy to the forefront.

Read the full Truthout article, Why Are We Turning Our Backs on the Constitution?

Professor Margaret Lewis

Professor Margaret Lewis In NBC World News, the China Post, Arab Post and GBTimes on Chinese Law

August 22, 2012

Professor Margaret Lewis appeared in and on NBC World News, the China Post, Arab Post and GBTimes regarding the murder trial of Gu Kailai as well as the Trayvon Martin case and self-defense under Chinese law NBC World News looked at the Trayvon Martin case through a comparative lens and asked international law experts how the case would play out in various countries throughout the world.

NBC World News reports:

Margaret Lewis -- associate professor of law at Seton Hall University, New Jersey, and an expert in Chinese law and criminal law – said the situation in China was “so different … that I'm hesitant to say definitively ‘here's how it would be handled.’”

She said justifiable self-defense was defined in “quite broad terms, leaving significant discretion in the hands of” prosecutors and judges.

“The lack of transparency as to how individual cases are handled in China makes it difficult, if not impossible, to project the specific charges and verdict,” Lewis said.

“That said, in light of the extremely high conviction rate, if [the shooter] was charged, I feel confident that he would be convicted of some crime. Not-guilty verdicts are extremely rare in China and, instead, the trial is generally more focused on what punishment is appropriate,” she added. “The high-conviction rate once charges are filed means that early intervention by lawyers during the initial investigation stage is particularly important if a suspect hopes to avoid criminal liability, or at least face lesser charges.”

She said it was “unlikely” that an accused person would be given bail pending trial.

Lewis said that self-defense was “a timely issue in China because the nephew of blind activist Chen Guangcheng, who arrived in the U.S. earlier this year, was facing criminal homicide charges “arising out of an alleged altercation when police broke into his home when searching for his uncle.”

“The nephew claims he acted in self-defense, but reports are that local authorities have thus far refused to let the nephew select his own lawyer, a clear violation of the Criminal Procedure Law,” she added. “This case is unusual because of the highly politicized nature of the case, but it is a helpful illustration of the continuing challenges that defendants face in China when trying to exercise their legal rights.”

In GB Times (link to video interview below), the China Post and Arab Post, Professor Lewis was asked for analysis and comment on the murder trial of Gu Kailai, and the process under Chinese law. GB Times reports:

Margaret Lewis, from Seton Hall University School of Law said, “first of all even when you don't have a case of this political importance in China the conviction rate is extremely high we are talking 98/99 percent so even just a standard criminal case that goes to trial is almost certainly going to come back with a guilty verdict and the trial itself becomes much more of a discussion about sentencing.”

…. But how does China’s legal process differ from if she were being tried in a western court?

Ms Lewis said, “in general I would say one important distinction is the lack of transparency. There really has not been a lot of information about this case. We have heard that representatives from the British embassy will be allowed to attend the trial but the trial will not be open to the general public, also we are yet to see the full indictment and we are relying on official media reports to even understand the charges.”

Read the NBC World News report, Trayvon Martin case: How courts in other countries might deal with a similar killing

See the interview with GB Times on Gu Kailai and Chinese law

Read the China Post article, Gu to be found guilty but spared execution

Read the Arab News article, “Gu's trial exposes rifts in China’s Communist party”

Professor Stephen Lubben

Professor Stephen Lubben Featured in The New York Times’ DealBook on the Need to Find New Ways to Protect Customers in the Wake of MF Global

August 16, 2012

Professor Stephen Lubben, who writes a regular column for The New York Times’ DealBook, wrote recently on the need to find new ways to protect customers in the wake of MF Global, and the “rumblings” that there will be no criminal charges filed in the matter.

Professor Lubben writes:

The MF Global story still lingers as an insolvency matter, but now we hear rumblings that there will be no criminal charges. It may well be that no crimes were committed, but if this is so, it is time to seriously rethink how broker-dealers handle customer property.

Read the full NEW YORK TIMES DealBook column, After MF Global, a Need to Find New Ways to Protect Customers

Professor Michael Risinger

Professor Michael Risinger in the Asbury Park Press on New Jersey’s New Eyewitness ID Instructions

August 05, 2012

Professor Michael Risinger, co-founder of Seton Hall Law’s Last Resort Exoneration Project, appeared in the Asbury Park Press offering commentary and analysis on the New Jersey Supreme Court’s newly revised juror instructions regarding eyewitness testimony. The new rules were promulgated on the heels of the landmark Henderson case and the Asbury Park Press notes that the new instructions to jurors will be “encouraging them to consider eyewitness testimony more skeptically.”

The Asbury Park Press writes:

The changes are long overdue, said D. Michael Risinger, a Seton Hall University Law School professor and co-founder of The Last Resort Exoneration Project, which offers pro bono investigative and legal services to the state’s convicted innocent.

“Extensive scientific research on eyewitness memory and perception shows that eyewitness evidence isn’t everything it’s cracked up to be. It’s often unreliable,” Risinger said.

Risinger’s group estimates that at least 1 percent of the state’s nearly 6,000 prison inmates currently serving a sentence of 15 years or more could be innocent.

The state Supreme Court in July issued the first-in-the-nation instructions to help jurors evaluate whether stress levels and lighting, among other factors, may have clouded the ability of an eyewitness to make an accurate identification. The change takes effect Sept. 4.

Read the full article, Judges to Warn Jurors About Eyewitness IDs

Professor Linda Fisher in U.S. News & World Report on reverse mortgages as an option for older homeowners experiencing financial distress.

August 03, 2012

Professor Linda Fisher, a leading expert in home foreclosure law, appeared in U.S. News & World Report regarding the viability of reverse mortgages for older homeowners experiencing financial distress. The article details the plight of the elderly in this latest recession. U.S. News reports:

According to a recent report from AARP's Public Policy Institute, more than 1.5 million homeowners age 50 or older have lost their homes to foreclosure since the mortgage crisis began in 2007, raising the foreclosure rate among this group from 0.3 percent in 2007 to 2.9 percent in 2011.

Those 75 or older are in the worst shape: In 2007, one of every 300 homeowners in this group was in foreclosure, and that number has since increased to about one in 30, according to the report. Fortunately, there are steps older Americans can take to protect their homes from foreclosure. U.S. News spoke to real estate and financial experts, who outlined these preventative measures:

Professor Fisher considered the viability of reverse mortgages, which are available to homeowners over age 62 and do not have to be repaid (along with accrued interest) until the homeowner dies, sells the home, or no longer uses the home as a primary residence, in lieu of foreclosure. U.S. News writes:

…a significant downside of reverse mortgages is that they come with high closing costs, which often exceed the closing costs of a standard home purchase. As such, they can substantially reduce the value of your home. Nonetheless, this may still be a good option for older Americans who have maintained a substantial amount of equity in their home, says Linda Fisher, a law professor at Seton Hall University who specializes in foreclosures. Fisher recommends talking to a HUD-approved housing counselor or a reverse mortgage counselor. A reverse-mortgage counselor may charge up to $125, but Fisher says it's a "minimal expense" for being able to keep your home.

Read the U.S. News & World Report article, 5 Ways Older Americans Can Protect Their Homes From Foreclosure

Rachel Lopez

Clinical Teaching Fellow Rachel Lopez Featured on Ebru Today TV on Immigration Law

July 29, 2012

Clinical Teaching Fellow for the Equal Justice Clinic and Immigration and Human Rights Clinic, Rachel Lopez, appeared on Ebru Today TV, broadcast to 11 million people worldwide, in a feature interview regarding the U.S. Supreme Court’s decision on the Arizona immigration law.

See the feature interview on Ebru Today TV here.

Professor Frank Pasquale

Professor Frank Pasquale In The Boston Review on The Sale of Public Naming Rights

July 19, 2012

Professor Frank Pasquale published a feature article in Boston Review on the sale of public space naming rights to corporate entities and why public transit, in particular, shouldn’t do so.

Professor Frank Pasquale published a feature article in Boston Review on the sale of public space naming rights to corporate entities and why public transit, in particular, shouldn’t do so. In the article, Professor Pasquale recounts how the current plight of many transit systems may, at least in part, be attributed to banking interests and Wall Street firms which transit agencies used to hedge against rising interest rates, converting their variable rate bond debt into fixed rate debt—“at exactly the wrong time.”

Professor Pasquale writes:

But the real harm here isn’t simply monetary—it’s also symbolic. Sales of naming rights represent the seizure and control of the public sphere by private interests. First, corporations fund broad anti-tax campaigns, which starve public goods and services. Then financiers—the corporate vanguard—take advantage of the resulting fiscal desperation by offering superficially attractive swap deals. The swaps turn out to have disastrous consequences for municipalities. At that point, public authorities are reeling, willing to sell even the names of stations to the highest bidder. Corporations are poised to become the “white knight” of public transit, conveniently obscuring their role in creating the political and economic crises that their charity and advertising money barely dents. Whatever scholars say about the history of this neoliberal conquest, the popular image will persist: Barclays or AT&T is saving our city.

Read the BOSTON REVIEW feature article, Names, Trains, and Corporate Deals: Why Public Transit Shouldn’t Sell Naming Rights

Professor Michael Simkovic

Professor Michael Simkovic in Nasdaq.com and Yahoo Finance on the Impact of the Credit Card Antitrust Settlement

July 16, 2012

Professor Michael Simkovic offered comment and analysis in Nasdaq.com and Yahoo Finance on the impact of the recent credit card antitrust settlement—which lawyers involved in the case say is the largest antitrust settlement in United States history.

The article details terms of the settlement, which arises from allegations that leading credit card companies engaged in anti-competitive practices in setting the fees charged to merchants, known as “swipe fees,” when consumers make purchases using credit cards. According to the article, the credit “card companies agreed to pay more than $6 billion to settle lawsuits from retailers…” and “Visa, MasterCard and major banks agreed to drop requirements that retailers charge the same price for cash and credit purchases.” Considering the potential impact this might have on consumers, the article also noted that

"If merchants end up charging a big difference between cash and credit prices, that might be enough to change people's behavior," says Michael Simkovic, an expert on consumer credit markets at the Seton Hall University School of Law. "If merchants see the value of credit cards as a convenience to customers, it might not have that much of an impact."

Read the full Nasdaq.com article, Settlement allows retailers to surcharge for credit card use; will they? here

Professor Charles A. Sullivan

Professor Charles Sullivan in The New York Times on Lawsuit Against Wet Seal Asserting Racial Bias

July 13, 2012

Professor Charles Sullivan appeared in The New York Times regarding a lawsuit filed against a national apparel retailer, Wet Seal. According to the Times, the lawsuit alleges that “the company had a high-level policy of firing and denying pay increases and promotions to African-American employees because they did not fit its ‘brand image.’”

The New York Times writes

The lawsuit, filed in Federal District Court in Santa Ana, Calif., includes a copy of a March 2009 e-mail sent by the company’s then senior vice president for store operations to lower-level managers after she had inspected several stores. The email said, “African American dominate — huge issue.”

One plaintiff, Nicole Cogdell, the African-American former manager of a Wet Seal store in King of Prussia, Pa., said the company terminated her the day after that e-mail was sent. She said that she had heard the senior vice president, Barbara Bachman, tell a district manager that she wanted someone with “blond hair and blue eyes.”

The lawsuit seeks back pay, and general and punitive damages. It also seeks class-action status on behalf of more than 250 current and former black managers at Wet Seal, which has more than 550 Wet Seal and Arden B stores across the nation and is based in Foothill Ranch, Calif.

The Times further notes,

The lawsuit alleges that Ms. Bachman had ordered various managers to “lighten up” the work force in stores with a large white clientele by hiring more whites and had told a regional manager that she must have “lost her mind” to have put a black person in charge of a particular store.

Charles A. Sullivan, a law professor at Seton Hall University and co-author of a textbook on employment discrimination law, said: “On these facts, the case sounds like a slam-dunk. Even if there is a consumer preference for employees to be of a certain race, even if it might reduce patronage, the law doesn’t provide an exception for you to discriminate in that way.”

Read the full New York Times article, Lawsuit Claims Race Bias at Wet Seal Retail Chain here

Professor Lori Nessel

Professor Lori Nessel appeared in the Wall Street Journal, New York Magazine, Star Ledger and the Gothamist Regarding Immigration Issues

July 11, 2012

Stemming from President Obama’s recent announcement that “he would cease deportation prosecutions against an estimated 1.4 million young undocumented immigrants and offer them temporary work permits,” Professor Nessel expressed concern at the prospect of scammers.

The Star Ledger writes:

…it is estimated that 60,000 people in New Jersey without U.S. citizenship may be affected by the new measure – mainly children. Lori Nessel, a law professor at Seton Hall University said she is also concerned that immigrant youth will be scammed.

"People are so desperate that sometimes they’re sort of willing to go to anyone," Nessel said. "There’s always a danger of people who are unscrupulous trying to make a lot of money off of this."

In the Wall Street Journal, New York Magazine and Gothamist, Professor Nessel commented on the decision made by U.S. Immigration and Customs Enforcement (ICE) not to subject Dharun Ravi to deportation. ICE said in a statement: "Based on a review of Mr. Ravi's criminal record, ICE is not initiating removal proceedings at this time." Ravi received a 30 day custodial sentence along with probation and community service after being found guilty of bias intimidation, invasion of privacy and other charges.

The Wall Street Journal writes (and New York Magazine and the Gothamist quote):

Lori Nessel, a professor at Seton Hall University School of Law, said the short jail sentence helped Mr. Ravi's immigration case. "It doesn't surprise me, given the sentence that he ultimately received," she said. "If he had gotten a much longer sentence then it might have put a lot more pressure or made it much harder for ICE not to move to deport him."

Read the Star Ledger article, Advocates concerned about potential problems, fraud with Obama's new deportation policy here

Read the Wall Street Journal article, Ravi Avoids Deportation here

Read the New York Magazine article, Dharun Ravi Won’t Be Deported, Leaves Jail Early here

Read the Gothamist article, Dharun Ravi Will Not Be Deported For His Bias Crime Conviction here

Professor Jenny-Brooke Condon

Professor Jenny-Brooke Condon Featured in The Record on Immigration Law

July 08, 2012

Professor Jenny-Brooke Condon appeared in a feature Op-ed, in The Record regarding the impact of the U.S. Supreme Court’s decision in Arizona v. United States.

Professor Condon writes:

The U.S. Supreme Court’s ruling last month in Arizona v. United States is a significant repudiation of state and local efforts to combat illegal immigration through “attrition by enforcement” — the goal of making life so inhospitable for undocumented immigrants that they opt to voluntarily return to their native countries. The court invalidated most of Arizona’s controversial immigration law on grounds of federal preemption.

The 5-3, decision written by Justice Anthony Kennedy, declared unconstitutional three of Arizona’s stepped-up enforcement efforts candidly adopted in order to encourage immigrants to settle elsewhere. In rejecting Arizona’s claimed interest in enforcing the immigration laws, the court reaffirmed that the federal government’s power over immigration matters is exclusive, controlling and incompatible with local regulation on the same subjects.

Read the full The Record article, Immigration ruling hits home here

Professor Jordan Paradise In Science Magazine on Genetic Retrodiagnosis

July 06, 2012

Professor Jordan Paradise appeared in Science magazine offering background analysis and commentary regarding the practice of medical retrodiagnosis of historic figures and celebrities through genetic testing—and otherwise.

Science writes:

….But although genetics can sometimes provide solid historical evidence— work published in 2010 on King Tut and other pharaohs shed needed light on his family dynasty—genetic testing of the dead can also introduce ethical quandaries because test results may affect the living as well, says Jordan Paradise, a law professor at Seton Hall….

Paradise began studying genetic testing when she was a law student in Chicago advising the Chicago History Museum. It houses numerous artifacts stained with the blood of Abraham Lincoln (a 2007 HCPC [Historical Clinicopathological Conference] subject). The museum had received requests to permit DNA testing of Lincoln’s blood for certain genetic disorders. In the end, it turned them all down.

That’s partly because such tests destroy small bits of the artifacts but also because of privacy concerns. The dead cannot say no, and genetic tests can expose personal details that no one at the time could have known or understood. And if the person has descendents, DNA tests could reveal health problems or questions about paternity lurking in the genes, things living relatives may not want revealed.

Paradise says that most of the HCPC’s work—such as pinning down a diagnosis by parsing old autopsy results—seems less troubling. “You’re just looking back at someone else’s account,” she notes, not “inserting yourself into that time.”

Read the full Science article, Retrodiagnosis: Investigating the Ills of Long-Dead Celebrities (subscription required)

Visiting Assistant Professor Zack Buck in a featured Op-ed in The Record on ‘The Affordable Care Act - What it means’

July 03, 2012

Professor Zack Buck published a feature Op-ed in The Record regarding the meaning— in a legal, practical and political sense— of the U.S. Supreme Court’s decision in the Health Reform case.

Professor Buck writes:

THURSDAY finally brought the Supreme Court’s long-awaited decision on the two major pillars of President Obama’s signature legislation, the Affordable Care Act. In a dramatic, complex and well-reasoned decision, Chief Justice John Roberts and four justices upheld most parts of the ground-breaking legislation – both the so-called “individual mandate” and its expansion of Medicaid.

Predictably, within hours, Republican presidential candidate Mitt Romney vowed the ACA’s repeal, and Obama claimed that the decision “was a victory for people all over this country.”

For those focused on the decision’s legal analysis, it was a stunning opinion – both because of what it contained and because of who wrote it.

Read the full feature, The Affordable Care Act - What it means in The Record

Professor Edward Hartnett

Professor Edward Hartnett on Health Reform Supreme Court Decision

June 29, 2012

Professor Edward Hartnett appeared on Ebru Today TV, broadcast to 11 million people worldwide, in a feature interview regarding the U.S. Supreme Court’s decision on the challenge to the Health Care Reform law.

Professor Hartnett discussed the “surprise” of the Court’s ruling regarding Medicaid expansion and Congressional power, the Individual Mandate as a tax and as an incentive, and the precedential nature of the decision for Commerce Clause power.

Watch Professor Hartnett discuss the "surprise" of the Court's ruling on Ebru Today TV, here

Professor Frank Pasquale

Professor Frank Pasquale in the Star Ledger Regarding the Supreme Court’s Health Reform Ruling

June 29, 2012

Professor Frank Pasquale appeared in The Star Ledger regarding the U.S. Supreme Court’s ruling on the Health Reform law, otherwise known as the ACA or Affordable Care Act. The article, as did the Supreme Court, focused upon the distinction between a tax and a penalty as it regards the consequences for a failure to procure health insurance. The Individual Mandate to procure health insurance was found to not be unconstitutional on the basis of that consequence being a tax for constitutional purposes, but not a tax a defined by statute under the Anti-Injunction Act, thereby allowing the case to be heard.

The Ledger writes:

Frank Pasquale, a Seton Hall Law School professor specializing in health care regulation and enforcement, said it was no accident that Congress didn’t include the word "tax" in its legislation. "That was pure politics," he said.

In fact, when the law was before Congress, Obama and Democrats avoided calling its penalty for going uninsured a "tax." But the administration argued before the Supreme Court that the law was constitutional as a federal tax.

But Pasquale said the chief justice’s majority opinion left no room for debate. "He said the federal government does not have the power to impose health insurance on every American but it does has the power to impose a tax on those who refuse it."

Read the full Star Ledger article, Penalty vs. tax: Health care law ruling depended on definition here

Professor Frank Pasquale

Professor Frank Pasquale in CBS News, Washington, D.C., on the Potential Impact of the Repeal of the ACA

June 27, 2012

In anticipation of the Health Reform decision by the U.S. Supreme Court, Professor Frank Pasquale appeared in CBS News, Washington, D.C., on the potential impact of the repeal of the ACA in its entirety.

CBS writes:

Thursday’s decision could effectively reverse significant portions of the health care law, after it initially passed in March 2010. In addition to the individual mandate, a Medicaid expansion, employer mandate and a health benefits exchange program could all be repealed.

What would it mean for Americans, if the Supreme Court decided to cancel some – or all – of the provisions on the proverbial chopping block?

CBS further notes:

“If the whole law is repealed, there will be a lot more suffering and death, particularly among the [United States'] most vulnerable citizens, due to [lack of insurance] or under-insurance,” Frank A. Pasquale, Schering-Plough Professor in Health Care Regulation and Enforcement at Seton Hall Law School, told CBSDC. “Employer-based insurance is getting harder and harder to find, and PPACA … was the major U.S. initiative to make the individual insurance market fair and affordable.”

Read the full CBS article, Expert: Overturning Health Care Law Would Cause ‘Humpty Dumpty Problem’ here

Professor Margaret Lewis

Professor Margaret Lewis, Elected to the Council on Foreign Relations

June 25, 2012

Professor Margaret Lewis was elected as a five-year Term Member of the Council on Foreign Relations. Considered by many to be the most influential foreign policy think-tank in the nation, the Council on Foreign Relations is an American non-profit, nonpartisan member organization, publisher and think tank specializing in U.S. foreign policy and international affairs.

Founded in 1921, the Council on Foreign Relations offers elected five-year Term Memberships through the Stephen M. Kellen Term Member Program. The Stephen M. Kellen Term Member Program was “established to cultivate the next generation of foreign policy leaders, encourages promising young leaders from diverse backgrounds to engage in a sustained conversation on international affairs and U.S. foreign policy. The term members enjoy a full range of activities, including events with high-profile speakers, an annual Term Member Conference, roundtables, trips to financial and governmental institutions around the country, and one week-long study trip abroad every two years.”

Professor Lewis is a noted expert in Chinese Law. She recently testified before the U.S. Congressional-Executive Commission on China regarding “Current Conditions for Human Rights Defenders and Lawyers in China, and Implications for U.S. Policy” and is a Public Intellectuals Program Fellow with the National Committee on U.S.-China Relations.

You can learn more about the Council of Foreign Relations here

You can learn more about the Council of Foreign Relations’ Term Member Program here

Professor John Jacobi

Professor John Jacobi in New Jersey Spotlight on the impact thus far for the Affordable Care Act in New Jersey

June 17, 2012

Professor John Jacobi appeared in a New Jersey Spotlight article, which examined, rather comprehensively, the impact thus far for the Affordable Care Act in New Jersey. New Jersey Spotlight determined that

Healthcare in New Jersey is being profoundly altered by the 2010 Affordable Care Act, and no matter how the Supreme Court rules on its constitutionality, pilot programs to rein in spending and improve patient care will continue to roll.

New Jersey Spotlight details some rather impressive impact for the ACA in New Jersey thus far. It notes:

It will take several years for the ACA's pilot programs to pay dividends, in the form of less inflation in healthcare costs and healthier people. But New Jersey has already reaped several benefits. The law has directed more than $700 million to New Jersey, according to an estimate by the Kaiser Family Foundation. That includes more than $100 million in prescription drug rebates, discounts for nearly 250,000 seniors on Medicare, and more than $300 million in grants to employers to help them pay for early retiree health benefits -- a diverse list of about 90 public and private employers that includes the state of New Jersey, Princeton University, and Johnson & Johnson.

Extending Coverage

According to the federal Department of Health and Human Services, more than 68,000 young adults have health coverage today because the ACA requires insurance companies to keep dependents on their parent's policies until age 26. More than 1.7 million New Jerseyans have benefitted from the ACA's rule that private health providers can't charge co-pays for certain preventive services, and nearly a million New Jersey Medicare members also are getting free preventive screenings.

Regarding ‘Coverage and Costs,’ the Spotlight notes:

Seton Hall Law School Professor John Jacobi said the ACA is more about getting people covered than trying to lower healthcare costs -- with the exception of the ACO [Accountable Care Organizations], which "creates new incentives for healthcare providers to coordinate care, to care for people with multiple chronic illnesses at the right time and the right place with the right specialties, so there is a reduction in the duplication of services. It is a great step to take -- to think about how we can actually save money."

Read the full New Jersey Spotlight article, “The Affordable Care Act: Prescription for Change in NJ Healthcare” http://www.njspotlight.com/stories/12/0617/2221/

Professor Barbara Moses

Professor Barbara Moses in the Philadelphia Inquirer on the proposal to amend the NJ Constitution to allow judges to deny bail to violent offenders

June 14, 2012

Professor Barbara Moses appeared in the Philadelphia Inquirer

The Inquirer notes that the proposal has met little opposition among New Jersey legislators thus far and that

A Senate committee will hold a hearing Thursday on the proposed amendment, which has advanced out of Senate and Assembly committees. Both chambers must approve the measure with a three-fifths majority vote to put it on the ballot in November.

If voters approve the change, the Legislature will draft guidelines for judges.

Professor Moses, however, expressed concern over the proposed constitutional amendment as well as the slippery slope which such power might create. The Inquirer writes:

Other lawyers worry that judges will feel pressured to lock up everyone accused of a violent crime, which could lead to wrongful incarceration of defendants later exonerated and cause a spike in county jail populations at a high cost to taxpayers.

"It is much easier for a judge to deny bail, particularly when a recently passed statute encourages him to do so, than it is to take even a very small risk that the defendant will harm a member of the public while awaiting trial," said Barbara Moses, a visiting professor at Seton Hall University of Law. "I worry that, if the constitutional amendment is passed, the next step will be a package of legislation that not only permits judges to deny bail to defendants charged with violent offenses but makes it very difficult for them to do anything else."

The Inquirer described the genesis of the proposal and its underlying reasoning; Professor Moses cautioned that the numbers given as justification for the proposal could be “misleading” and discussed the implications of bail denial. The Inquirer writes:

It wasn't a particular case that sparked Christie's desire to change the state's bail system, said Paul Loriquet, a spokesman for the New Jersey Attorney General's Office. But as a former U.S. attorney, Christie worked in a system that allowed judges to keep those deemed dangerous behind bars before trial. He wants state judges to have the same authority.

One out of every six offenders who is released on bail commits another crime before trial, according to a 2007 study by the Bureau of Justice Statistics. Of those who commit an additional offense, more than half are felonies, Loriquet said.

But Moses says those numbers can be misleading. The same study showed that one in five defendants who was detained before trial was acquitted or had the case dismissed.

Denial of bail tends to be a devastating blow to a criminal defendant," she said. "Not only does it make it exponentially more difficult for him to mount an effective defense at trial; it has enormous collateral consequences (loss of employment, loss of housing, loss of custody over children, just to name a few) that often cannot be undone even if the charges are later dropped or the defendant is acquitted," she said.

Read the full Philadelphia Inquirer article N.J. looks to restrict bail for violent offenders

Professor Stephen Lubben

Professor Stephen Lubben Testifies Before Congress on Bankruptcy

June 07, 2012

Professor Stephen Lubben testified before the U.S. House Financial Services Subcommittee on Capital Markets and Government Sponsored Enterprises regarding Argentinean Debt Default and the Automotive Bankruptcy Cases. The topic of the Congressional Hearing was “The need to protect investors from the government.”

Professor Lubben can be seen discussing the topic and his testimony before Congress in an interview with Bloomberg Law TV.

You can find the Bloomberg Law TV interview here

You can find a copy of Professor Lubben’s Congressional testimony here

Professor Stephen Lubben

Professor Stephen Lubben featured in the New York Times and BusinessWeek regarding the Dewey & LeBoeuf bankruptcy.

May 31, 2012

In The New York Times, as part of his regular DealBook column, Professor Stephen Lubben noted the similarities of the Dewey bankruptcy to that of Lehman Brothers.

Professor Lubben writes:

The rest of the footwear has finally fallen, and Dewey & LeBoeuf is now in Chapter 11. It joins Brobeck and Shea & Gould among the fallen white-shoe greats.

It seems that Dewey engaged in something of a leveraged buyout of itself: Lots of the lenders’ money was used to pay off the owners (the partners), leaving the firm highly susceptible to failure.

Dewey then essentially experienced a run on the bank. Partners are paid based on the overall income of the firm. Once a few of the top-producing partners began to leave, some of the remaining partners said, “Say, that means less pay for me this year.”

Now, one partner here or there does matter, but once partners start leaving in bunches, anybody else left who can leave will.

In many ways, it’s quite similar to the process that drove Lehman Brothers to bankruptcy court.

And in that regard, it is interesting to note that both law firms and investment banks have only recently moved away from their traditional structure as partnerships. In a partnership, the owners retain personal liability for the firm’s debts, but now investment banks are publicly traded corporations (and also bank holding companies, since the crisis) and law firms are limited liability partnerships. Both structures remove much of the owners’ personal liability.

In BusinessWeek, Professor Lubben noted the difficulties Dewey & LeBoeuf creditors now face after the firm file for Chapter 11 protection. BusinessWeek writes:

With few assets except their bills and partners, law firms’ liquidations tend to be drawn out and contentious. “They don’t have much of anything—other than perhaps some lawsuits—once their moneymakers leave,” says Stephen Lubben, a bankruptcy law professor at Seton Hall University School of Law.

Read the full New York Times’ DealBook article, How Dewey is like Lehman

Read the full BusinessWeek article, After Dewey & LeBoeuf, It's Lawyers v. Lawyers

NJ LEEP

The New Jersey Law and Education Empowerment Program (NJ LEEP), a college preparatory program, was featured in The Star Ledger

May 29, 2012

The New Jersey Law and Education Empowerment Program (NJ LEEP), a college preparatory after-school program which features a law-based curriculum for urban area junior high and high school students, was featured in The Star Ledger.

The program, a Seton Hall Law partnership based on campus, has experienced overwhelming success among its participants.

The Star Ledger notes that this year

NJ LEEP will send all of its two dozen participants to college — a significant achievement when roughly half of the teens from cities like Newark, Irvington and East Orange fail to graduate high school.

They will attend the College of New Jersey, the College of the Holy Cross, Mt. Holyoke College and Smith College, among others. One student will attend Princeton University.

Students interested in the program must apply as eighth graders, but Craig Livermore, the group’s executive director, said academics are not the only factor considered in the selection process. He said he also looks for motivated kids willing to buckle down and work hard.

“We look for students who really want a different life for themselves through college but who are open about the fact that they don’t know how to get there,” Livermore said. “We don’t take all high-performing kids because we can add a lot more for kids who don’t have straight As and Bs.”

The program is in its fifth year and is funded privately by donations of $500 up to $160,000 from groups like the New Jersey State Bar Foundation, the Law School Admission Council and Seton Hall Law School, with whom NJ LEEP has a partnership.

Read The Star Ledger article, N.J. after-school program sets students on the right course

Professor David Opderbeck

Professor David Opderbeck In the Asbury Park Press, Home News & Tribune and Daily Record On Privacy In the Cybersphere

May 22, 2012

Professor David Opderbeck appeared in the Asbury Park Press, Home News & Tribune and Daily Record on the larger issue of privacy in the cybersphere within the context of the Dharun Ravi case.

The Asbury Park Press et al. note:

David Opderbeck, a law professor and director of the Gibbons Institute of Law, Science and Technology at Seton Hall Law School in Newark, said it’s fair to say that some aspects of privacy are changing because of the Internet, and part of that is generational. He also said social networks can create a false sense of intimacy.

“It seems like people who are growing up with the Internet seem to be increasingly more comfortable with putting personal details of their lives in that space,” he said.

He said in the legal field, scholars always say the law can’t keep up with technology.

“And I think that’s certainly true in this era of privacy,” he said. “It’s probably not even possible to have a comprehensive legal approach or solution to the Dharun Ravi case.”

It’s also difficult to have legal solutions for the openness that the Internet facilitates, while also protecting privacy, he added.

“The culture has to develop in a way that people have norms that take privacy into account,” he said. “You want the law to be there when people need to protect their privacy, but you don’t want the law to work in a way that it closes off new communication technology. That’s always the difficulty.”

 Read the full Asbury Park Press article, Spycam Case Shows Privacy Fleeting, here

 Read the full Home News & Tribune article, Webcam Spying Case Reveals Fleeting Privacy, here

 Read the full Daily Record article, Spycam Case Show Privacy Fleeting,here

Professor Marc Poirier

Professor Marc Poirier in Media Throughout the World on Dharun Ravi

May 21, 2012

Professor Marc Poirier has appeared in media throughout the country and even the world offering commentary and analysis regarding the Dharun Ravi case and sentencing. Media includes the New York Times, NPR, BBC, Los Angeles Times, Associated Press, Reuters, the Indo-Asian News Service and more.

Professor Poirier’s expertise in hate crime and bias laws has been a mainstay of the media throughout the trial of Dharun Ravi and his analysis questioned, from a legal perspective, the appropriateness in this instance of New Jersey’s bias intimidation charge, carrying with it a potential ten year prison term. As The Record noted, Professor Poirier’s analysis of the case and his “opinion that the hate crime charge brought against Ravi was inappropriate was included as part of the defense’s sentencing memo to the judge.” Observers noted that much of Professor Poirier’s analysis was echoed from the Bench upon Ravi’s sentencing.

The New York Times writes,

While Mr. Clementi’s suicide in September 2010 galvanized public attention on the struggles of gay, lesbian and bisexual teenagers, the question of how to punish Mr. Ravi has revealed the deep discomfort that many gay people feel about using the case as a crucible. “You’re making an example of Ravi in order to send a message to other people who might be bullying, to schools and parents and to prosecutors who have not considered this a crime before,” said Marc Poirier, a law professor at Seton Hall University who is gay and has written about hate-crimes legislation. “That’s a function of criminal law, to condemn as general deterrence. But I think this is a fairly shaky set of facts on which to do it.”

Considering the ultimate impact of the case, however, the Los Angeles Times noted that “Marc R. Poirier, a professor of law at Seton Hall University in New Jersey who specializes in bias crime and gender issues, noted that the case had ushered in a rigorous anti-bullying law in the state and forced institutions to pay more attention to cyber-bullying.”

Read the full New York Times article, In Rutgers Spying Case, Voices for Gay Rights Urge Leniency

Read the Los Angeles Times article, 30-day Sentence Fuels Debate in Rutgers Anti-gay Bias Case

Hear Professor Poirier on NPR’s The Takeaway, talking about the lack of similar reported cases anywhere in the United States and the “excessive” nature of the prosecution under New Jersey’s bias crime law.

Hear the BBC Podcast on World Have Your Say regarding the case and sentencing (about 4 minutes in)

Read the Associated Press story (variously titled but run in literally thousands of media sources throughout the country and the world, from the Taiwan News and Asia News to The Washington Times and the Durango Herald) The Washington Times, Ex-Rutgers student to serve 30 days in jail in webcam case

Taiwan News, Indian Student Gets 30 days in US Webcam Case

Read the Reuters article, Former Rutgers Student Gets 30 Days In Prison For Bias Crimes

Read the Newsday story, Dharun Ravi 30-day jail term splits legal, gay observers

Professor Jonathan Hafetz

Professor Jonathan Hafetz Receives the ABA’s Silver Gavel Award, Honorable Mention

May 16, 2012

Professor Jonathan Hafetz has received the American Bar Association’s Silver Gavel Award for Media and the Arts, Honorable Mention, for his book, Habeas Corpus After 9/11: Confronting America’s New Global Detention System. According to the ABA, “The Association has presented these awards annually since 1958 to honor exemplary work in media and the arts that fosters the American public’s understanding of law” and is its “highest honor in recognition of this purpose.”

 Read the full ABA announcement, American Bar Association Announces 2012 Silver Gavel Awards for Media and the Arts, here

 Read more about Habeas Corpus After 9/11: Confronting America’s New Global Detention System, here

Professor Charles Sullivan

Professor Charles Sullivan in Bloomberg News on the implications of the Lilly Ledbetter Fair Pay Act for women in the workplace

May 13, 2012

Professor Charles Sullivan appeared in Bloomberg News regarding the implications of the Lilly Ledbetter Fair Pay Act for women in the workplace. The Act, the first piece of legislation President Obama signed into law when he took office in 2009. As Bloomberg reports,

The law reversed the 2007 Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. to extend the time a worker can sue an employer for sex-based wage discrimination to as many as 180 days from the last discriminatory paycheck, instead of 180 days since the first paycheck reflecting unequal wages.

According to Bloomberg, President Obama has mentioned the Ledbetter Fair Pay Act frequently in his campaign for re-election and has coupled it with the promotion of a proposal to pass further legislation, the “Paycheck Fairness Act that would enable employees to find out what their colleagues are earning.”

Despite the expansion of opportunity to bring suit, the number of sex-based wage discrimination suits has dropped since Ledbetter was passed. Bloomberg reports:

Judges who are narrowly interpreting the Ledbetter law, the lack of transparency about pay, and a sluggish economy are reasons why Ledbetter hasn’t had more of an impact, said lawyers and advocates.

Women are afraid of losing their jobs if they complain, especially as the economy recovers from the worst economic downturn since the Great Depression, said Charles A. Sullivan, a professor at Seton Hall Law School who has represented employees in pay discrimination suits.

“If you’ve got a job and things are going pretty well except you think you may be the victim of pay discrimination, maybe this is not the best time in the world to rattle that cage,” Sullivan said.

 Read the full Bloomberg article, Obama Pitches Equal Pay to Win Women as Charges Drop, here

Seton Hall Law

Center for Policy & Research featured in the Washington Post, Boston Globe, Miami Herald, The SCOTUS Blog and more

May 11, 2012

The most recent report by The Center for Policy & Research, NO HEARING HABEAS: D.C. Circuit Restricts Meaningful Review, was featured in the Washington Post, the Boston Globe, the Miami Herald, the SCOTUS Blog and other news sources throughout the country.

The 21st Guantanamo Report produced by the Center for Policy & Research, NO HEARING HABEAS, was co-authored by Center Director, Professor Mark Denbeaux, Center Co-Director, Professor Jonathan Hafetz and Seton Hall Law students and Center Fellows, Sara Ben-David '12, Nicholas Stratton '12 and Lauren Winchester '12.

The Boston Globe notes that:

An academic analysis finds that the federal appeals court in Washington has effectively blunted a 2008 Supreme Court decision giving terrorist suspects held at the Guantanamo Bay naval brig the right to contest their confinement.

The study by Seton Hall University law professors says the U.S. Court of Appeals for the District of Columbia Circuit has largely blocked efforts by the detainees to win their freedom by ordering lower court judges to take a more accepting view of the government's evidence justifying their continued imprisonment.

The Washington Post further noted that:

The report says that since a key appeals court decision in 2010, only one of the dozen detainees whose cases were heard by federal trial court judges in Washington won a court order for his release. And that order was later overturned by appellate judges. In the past two years, “a clear pattern has now emerged: Almost no detainees will prevail at the district court level, and if any do, the D.C. Circuit will likely reverse the decision to grant them relief,” the report said.

The report further demonstrates that the differences before and after that key appeals decision in 2010, Al-Adahi v. Obama, were not limited merely to winning and losing. Significantly, the two sets of cases were markedly different in the deference that the district courts accorded government allegations. In the 34 earlier cases, courts rejected the government’s factual allegations 40% of the time. In the most recent 12 cases, however, the courts rejected only 14% of these allegations. Before Al-Adahi, a district court judge was nearly three times more likely to reject the government’s most frequent allegations.

The SCOTUS Blog, devoted to the Supreme Court of the United States, reports that

“A thorough analysis of the government’s factual allegations [against detainees] and the District Courts’ reactions show judicial deference to the government is the new norm,” the report concluded. It was issued May 1 by the Center for Policy & Research at the Newark campus of Seton Hall’s law school. The Center has been monitoring the legal situation with detainees for years, especially through studies led by law professor Mark Denbeaux, the Center’s director.

“ Read the Washington Post article, “Report says appeals court blocks meaningful review for Gitmo detainees promised by high court” 

Read the Boston Globe article, “Report: Appeals court chokes off Gitmo reviews” 

Read the SCOTUS Blog article, “Documenting detainees’ legal woes”

SEE THE REPORT AND PRESS RELEASE FOR NO HEARING HABEAS: D.C. Circuit Restricts Meaningful Review.

Professor John Jacobi

Professor John Jacobi in The Wall Street Journal on the New Jersey veto of Health Insurance Exchanges and the Possibility Of Compromise Going Forward

May 10, 2012

Professor John Jacobi appeared in The Wall Street Journal regarding the last minute veto by Governor Chris Christie of a bill which would have created a health insurance exchange in New Jersey. The Journal reports:

New Jersey Gov. Chris Christie on Thursday vetoed a bill to create a medical-insurance exchange, rejecting a key element of President Barack Obama's health-care overhaul but leaving the door open if the federal law survives court challenges.

Regarding how the exchanges have fared thus far in other parts of the country, The Wall Street Journal noted that

"Some states clearly are not going to pass them. Other states have. It's all over the map at this point," said John Jacobi, a professor specializing in health policy at Seton Hall University School of Law.

Governor Christie is said to have expressed concerns over committing to the expense of the program with the potentiality that the Supreme Court might find the Affordable Care Act unconstitutional, which might then impact, if not eradicate, federal funding for the exchanges.

Governor Christie also expressed reservations about other aspects of the bill. The Journal reports

In his veto, Mr. Christie said he was concerned about creating a new "Medicaid-like program" for individuals above the poverty level without assurances of federal funding. He also expressed doubts about New Jersey's process of certifying participants in the plan, as they could limit the pool of insurance providers and increase costs.

Mr. Christie also expressed concerns about the exchange's board. Members were to be paid $50,000 and would be limited to those not directly involved in the healthcare industry.

Mr. Jacobi said that the issues raised by Mr. Christie would be surmountable if he decided to move forward after the court ruling.

"It's really reasoned and not drawing lines in the sand," said Mr. Jacobi, referring to the governor's veto. "There are obvious grounds for compromise."

 Read the full Wall Street Journal article, Health Exchange Dismissed, here

Professor Frank Pasquale

Professor Frank Pasquale on MediaPost.com On Search Engines, Free Speech, Process Transparency and Antritrust Concerns

May 09, 2012

Professor Frank Pasquale appeared in MediaPost.com regarding search engine results, free speech, process transparency and antitrust concerns. The article reports

“Search engines have a free-speech right to display whichever results they choose, in whichever order they choose, constitutional law scholar Eugene Volokh argues in a paper commissioned by Google and submitted to the Federal Trade Commission.

Volokh argues that Google has the same free-speech rights as newspapers, encyclopedias or other publishers in deciding what content to feature -- even if the decisions are seen as unfair or harmful to other businesses.”

The article further notes,

“But Seton Hall law professor Frank Pasquale (who has suggested that search engines should be more transparent about the factors that go into the decisions about rankings) says a 1951 Supreme Court decision about a monopolistic newspaper might be more problematic for Google. In that case, the Supreme Court ruled that the Lorain Journal of Ohio violated antitrust law by refusing to accept ads from companies who also advertised with a local radio station.

At the time, the Journal was the only daily paper in town; it reached virtually every household in Lorain. For those reasons, the Journal was "an indispensable medium of advertising for many Lorain concerns," the Supreme Court wrote in an order holding that the Journal's ad policies violated antitrust law.

 Read the full MediaPost.com article, Report: Forcing Search Engines To Be 'Fair' Violates Free Speech, here

Professor John Coverdale

Professor John Coverdale in Catholic World Report & EWTN’s Live Tonight on St. Josemaría Escrivá and Fr. Joseph Muzquiz

May 04, 2012

Professor John Coverdale, who has written two books on Opus Dei and is considered the leading American expert on Saint Josemaría Escrivá, appeared in Catholic World Report regarding his remembrances of the Saint and founder of Opus Dei. May 17th of this year marks the 20th anniversary of Saint Josemaría Escrivá’s beatification. Professor Coverdale, who clerked for Supreme Court Justice Antonin Scalia when he sat on the U.S. Court of Appeals for the D.C. Circuit, worked with Saint Jose Maria Escriva in the Opus Dei office of public relations in Rome.

Asked how he got to know the Saint, Professor Coverdale replied:

I saw him at the public relations office daily. I found him to be a man of great faith, who loved God, loved Our Lady and those around him. He had a great personal concern for each person with whom he interacted, which surprised me, considering that we were a large international organization.

He was also quite funny. It wasn’t so much that he told jokes, but had that particular turn of phrase or lifting of the shoulders and eyebrows that could get the room laughing. If you watch old movies of him talking to groups, you’ll notice that people laugh a lot.

On EWTN, the largest religious media network in the world, Professor Coverdale spoke about Father Joseph Muzquiz, one of the first three priests ordained by Opus Dei and founder of Opus Dei in America. The cause for sainthood for Fr. Muzquiz, of which Professor Coverdale is the chair of the historical commission, was recently opened by the Boston Archdiocese. Professor Coverdale wrote a biography of Fr. Joseph Muzquiz entitled “Putting Down Roots.”

And as it so happens, Professor Coverdale also worked with Fr. Muzquiz.

 Read the full Catholic World Report article, Remembering Saint Josemaria Escriva, here

 Watch the EWTN Live Tonight show on Father Joseph Muzquiz, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz in The Huffington Post and on Free Speech Radio

May 03, 2012

Professor Jonathan Hafetz published a column in The Huffington Post entitled, “Even Terrorists Deserve to Be Sentenced,” which examines the difficulties and anomalies of a system of non-ajudication as it regards Guantanamo detainees and terrorism suspects. Professor Hafetz writes:

At Guantanamo Bay, Khalid Sheikh Mohammed and four co-conspirators will be arraigned Saturday before a military commission for their role in the 9/11 attacks. In Brooklyn, Adis Medunjanin awaits sentencing following this week's guilty verdict in his federal trial for plotting to blow up New York City subways. The two cases have rekindled the debate over whether to try terrorism suspects in federal court or military commissions. But the differences between these two forums pale in comparison to those between detainees who are charged with crimes and those who are not.

Most of the 169 remaining Guantanamo detainees will never be charged in any court. They will thus never be given what those accused of the most serious terrorist offenses receive: the opportunity to be tried and sentenced if found guilty.

On Free Speech Radio, Professor Hafetz was interviewed regarding the Guantanamo arraignment of Khalid Sheikh Mohammed and four co-accused detainees and spoke, in addition, about some of the key differences between federal court trials and military commissions.

 Read the full Huffington Post article, Even Terrorists Deserve to Be Sentenced, here

 Listen to the full Free Speech Radio interview, US Restarts Military Trial For Five Guantanamo Detainees Accused Of Planning 9/11 Attacks, here

Professor Margaret K. Lewis

Professor Margaret K. Lewis on BBC Radio and in The Diplomat.

May 03, 2012

Professor Margaret Lewis appeared on BBC’s World News Today and World News Tonight and in The Diplomat regarding the U.S.-China implications of activist Chen Guangcheng’s plight as well as commentary on potential outcomes in the matter.

Professor Lewis is a noted expert in Chinese Law. She recently testified before the U.S. Congressional-Executive Commission on China regarding “Current Conditions for Human Rights Defenders and Lawyers in China, and Implications for U.S. Policy” and is a Public Intellectuals Program Fellow with the National Committee on U.S.-China Relations.

 Listen to the full BBC Radio, The World Tonight, interview here (at 13:31)

 Listen to the full BBC Radio, The World Today, interview here (at 18:50)

 Read The Diplomat article, Chen Guancheng mystery deepens, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz In the Huffington Post on Wikileaks Court Martial

April 25, 2012

Professor Jonathan Hafetz authored a feature column in the Huffington Post regarding the secrecy surrounding the court martial of Pfc. Bradley Manning, the alleged whistleblower accused of leaking classified documents to Wikileaks.

Professor Hafetz writes:

Court-martial proceedings are moving forward at Fort Meade, Maryland, in the case of Pfc. Bradley Manning, the suspected whistleblower accused of leaking classified government documents to Wikileaks. Although the Manning court-martial ranks among the most important national security prosecutions in recent memory, it is being litigated largely outside the public eye. Motions and documents filed in the case have not been made public. Orders issued by the trial judge also have not been released.

The law is clear: U.S. Supreme Court decisions establishing a First Amendment right of public access to criminal proceedings extend to courts-martials. So does the federal common law right of public access, a critical element of the United States' long tradition of open courts. And, just for good measure, the military's own rules mandate a presumption of open, public trials.

 Read the full Huffington Post article, Secrecy and the Bradley Manning Trial, here

Rahool Patel '12 and Edwin Meese III

Rahool Patel ’12 Publishes ‘Meese Makes Case Against Overcriminalization at Seton Hall Law’ in Heritage Blog

April 25, 2012

Rahool Patel ’12 along with Joseph Luppino-Esposito ’11, a Visiting Legal Fellow at The Heritage Foundation, published a feature article in the Heritage Foundation blog, The Foundry, entitled ‘Meese Makes Case Against Overcriminalization at Seton Hall Law.’ The article recounts the keynote address delivered by the former Attorney General of the United States, Edwin Meese III at a recent Seton Hall Circuit Review Symposium.

The article notes that,

“In a democratic republic, government must perform its public safety functions within a framework of liberty and justice,” said Meese. Meese noted that there were approximately 3,000 federal criminal statutes in the mid-1990s according to an American Bar Association task force. By the turn of the millennium, Congress had added another 1,000 criminal statutes to the United States Code. And today, leading experts estimate that there are nearly 4,500 criminal offenses in the federal code alone.

The story does not end there. Meese observed that the explosive growth of the federal bureaucracy has exacerbated the problem. In recent years, Congress has adopted broad statutes authorizing administrative agencies to promulgate regulations, which when violated, constitute a crime. These regulations do not appear anywhere in the United States Code. Instead they are found in the Code of Federal Regulations, which the great majority of law professors and students have never even touched, never mind average citizens. With more than 300,000 regulations at the federal level alone, it comes as no surprise that innocent Americans are increasingly snared in the web of the criminal justice system.

 Read the full article, ‘Meese Makes Case Against Overcriminalization at Seton Hall Law,’ and access a streaming link to audio of the keynote address by Attorney General Meese.

Professor Kip Cornwell

Professor Kip Cornwell in the New Jersey Herald on Proposed New Jersey Self-Defense Law

April 23, 2012

Professor Kip Cornwell appeared in the New Jersey Herald offering background legal analysis and commentary on a proposed self-defense bill in New Jersey. Unlike so called “Stand Your Ground” laws in other states, The Herald explained of the New Jersey bill:

It would broaden the definition of dwelling, typically interpreted as the interior of a home, to include exterior locations such as an attached porch or tent in the backyard. Moreover, a person justified in using force would receive immunity from either civil or criminal prosecution, rather than having to first go to trial and raise justification as an affirmative defense.

The proposal, particularly in that it addresses carjacking, represents a moderate but significant shift from existing legal principles in New Jersey, said Seton Hall Law School professor Kip Cornwell.

"Currently in New Jersey, if you can retreat in complete safety, then you have to retreat before using deadly force – except you don't have to retreat from your home," Cornwell said.

In addition,

The New Jersey Herald asked Cornwell, a professor of criminal law and procedure, to elaborate on how the proposed law would change or modify existing legal standards in the state.

"Most states simply say there is no duty to retreat. This proposal doesn't go that far. It just carves out a great number of exceptions to the duty of retreat. It becomes kind of a middle ground position," he said.

Cornwell questioned the need for expanding self-defense protections.

"It's not like in the past seven years, there's been a high-profile case where, if they had passed this bill, that justice would have been done. It doesn't seem necessary," Cornwell said.

However, New Jersey State Policemen's Benevolent Association President Anthony Wieners, upon reviewing the proposal, said it sounded reasonable to him.

"If somebody's coming in the front door with a gun or a knife. I think that's what this is intended for," he said.

Cornwell, though, said he understood why some might object to it.

"If you want to reduce it to its bare essentials," he said of the proposal, "it still allows someone to take another person's life and ... expands circumstances where they can do it, where they might have been able to retreat without any danger to themselves."

Cornwell said the legislation, if adopted, could inspire a tragedy due to someone being "nervous or trigger-happy" -- exactly the sort of scenario at the heart of the Zimmerman case.

He outlined one worst-case example: "You hear someone rapping at your window and you shoot him in the head, and it's your daughter's boyfriend trying to get her attention."

 Read the full New Jersey Herald article, Lawmakers' Self-Defense Bill Draws New Scrutiny, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz on the Qualified Immunity Ruling In Hamad v. Gates in the Lawfare Blog

April 23, 2012

Professor Jonathan Hafetz appeared in the Lawfare blog, a project of Harvard Law School and the Brookings Project on Law and Security, debating the qualified immunity ruling in Hamad v. Gates, with Professor Robert Chesney of the University of Texas School of Law.

While acknowledging portions of Professor Chesney’s position regarding the basis of the ruling in Hamad, Professor Hafetz writes:

But there are stronger arguments on which to rest a clearly established constitutional right to be free from arbitrary and unlawful detention. In Boumediene v. Bush, the Supreme Court held not only that non-citizens at Guantanamo have a constitutional right to habeas corpus but also that they (and other non-citizens held outside the United States) could potentially invoke other constitutional protections. The Court, to be sure, did not decide Boumediene until June 2008, after Hamad had been released. But in rejecting the government’s contention that the Constitution’s reach stopped at the nation’s political borders (and hence did not extend to Guantanamo), the Court’s opinion made clear that it was reaffirming decades-long jurisprudence and not stating a new constitutional rule. Thus framed, the question whether Hamad had a constitutional right to be free of the type of prolonged and arbitrary detention to which he claims he was subjected is closer than Bobby suggests.

Further, in answering this question, a plaintiff need not point to a case on all fours or show that the very action at issue has precisely been held to be unlawful. Rather, a plaintiff must show only that given pre-existing law, the unlawfulness was apparent. Viewed in this light, one might ask whether holding a detainee for two years after the government’s own administrative review board recommended him for release clearly constituted arbitrary detention under the Due Process Clause (as was the case with Hamad).

 Read the full Lawfare article, Debating the Qualified Immunity Ruling in Hamad: Hafetz Responds and I Reply, here

Professor Lori Nessel

Professor Lori Nessel in The Record on the Arizona immigration law before the United States Supreme Court. Learn more >>

April 22, 2012

Professor Lori Nessel appeared in a feature editorial in The Record regarding the Arizona immigration law before the U.S. Supreme Court.

The Record writes

Lori A. Nessel, a Seton Hall University law professor and director of the Center for Social Justice, said the Arizona law stands in stark contrast to the carefully crafted federal approach to immigration enforcement.

Noting that the federal law has been compared in complexity to the “labyrinths of ancient Crete,” Nessel said, “In part, this is because the federal immigration law attempts to strike a balance between a number of competing policy goals including promoting family reunification, allowing businesses to meet their needs, protecting refugees and removing undocumented immigrants.”

But Arizona’s approach, she said, “is solely enforcement and attrition, and it threatens to undermine the balancing that was so important to Congress.”

Increased racial profiling

She warned that the approach of Arizona and other states with tough anti-immigration measures “will likely mean increased racial profiling and further deterioration of the basic civil and human rights guarantees that have been at the heart of our nation of immigrants.”

“The very notion of ‘attrition through enforcement,’ or making life so unbearable for undocumented immigrants that they will give up any hope of a better life in America and choose to flee, is inimical to traditional American values,” she said.

 Read the full North Jersey editorial, Controversial Immigration Law Heads To Courth This Week, here

Professor H. Kwasi Prempeh

Professor H. Kwasi Prempeh Featured in Voice of America on African democracy. Learn more >>

April 18, 2012

Professor H. Kwasi Prempeh was featured in Voice of America regarding constitutional and democratic reform in Africa. Prior to coming to Seton Hall Law in 2003, Professor Prempeh served as Director of Legal Policy and Governance at the Ghana Center for Democratic Development, a nongovernmental policy forum and research institute he helped found in 1998 to promote and support democratic reform and constitutionalism in Ghana.

During his time in Ghana, Professor Prempeh worked on a wide variety of policy and legal reform issues, including land sector reform, anticorruption policy, review of the country’s constitution, and reform of business-related legislation and corporate governance in Ghana’s public commercial sector. Professor Prempeh continues to serve in Ghana, and returns regularly to assist in democratic and constitutional reform.

The Voice of America article, “African Democrats Look for Ways to Curb ‘Imperial Presidency,’” takes an expansive look at constitutional and democratic reform in Africa and notes that

Professor of law Kwasi Prempeh, who teaches at Seton Hall Law School in Newark, New Jersey, said many African constitutions were amended in the 1990s to reflect multi-party democracy. But he said they left the issue of presidential power unanswered.

"What is executive power? It comes from constitutional tradition," he explained, "from a litany of laws going back to [the military era of] the 1960s [and even to the colonial era], controlling economy and security – all in legislation. We should step back and look at all laws carried over from one regime to the next [when we re-write our constitutions]. A lot of laws from the past have really cast a dark shadow on our new constitutions."

In addition Voice of America notes,

Prempeh argues for a review of all existing laws that focus power in the presidency. Constitutional reforms would make clear the powers of the three branches of government and ensure funding for each does not depend on the president.

Prempeh also called for rules encouraging the democratization of political parties, which he says often revolve around the personalities funding them, rather than ideas. Today, he said, political parties lack internal democracy and can fire members who do not follow the party line. He said parties are therefore hijacked by presidents, who use their control of ‘slush funds’ to fund their parties.

"In Ghana," he explained, "there are provisions in constitution which says the internal governance of parties should conform to democratic principles. The general understanding [even though this has not been tested in court] is that one person cannot hijack the party and turn it into their personal estate.

"You are not going to have an undemocratic party producing democratic politicians. If the party is not democratic, does not hold primaries or allow anyone to contest for president, then that is the beginning of autocracy."

 Read the full Voice of America aricle, African Democrats Look for Ways to Curb 'Imperial Presidency', here

Professor Stephen Lubben

Prof. Stephen Lubben in The Wall Street Journal & PBS' Nightly Business Report

April 13, 2012

Professor Stephen Lubben appeared in the Wall Street Journal and on PBS’ Nightly Business Report concerning his latest paper, which, according to WSJ “looks at how Dodd Frank’s Orderly Liquidation Authority, a new insolvency regime created to address the limitations of bankruptcy law, would resolve—that is take over, sell off and wind down—Bank of America.”

The paper is entitled “Resolution, Orderly and Otherwise: B of A.”

 Read the full Wall Street Journal article, What Would Happen if a Big Bank Failed?, here

 Watch the Nightly Business Report interview here (Begins at 12:06)

Professor Jenny-Brooke Condon

Professor Jenny-Brooke Condon on Univision TV regarding a proposal in Passaic to require all employees in bars and restaurants which serve alcohol to be fingerprinted and licensed

April 02, 2012

Professor Jenny-Brooke Condon appeared on Univision TV, the network with the largest Spanish speaking viewership in the United States, regarding a proposal in Passaic to require all employees in bars and restaurants which serve alcohol to be fingerprinted and licensed. Professor Condon noted that although the proposed law is said to be a means of safeguarding the public, it could have “a chilling effect on undocumented workers.”

 Watch the full Univision TV story, Nueva medida para empleados de bares en Passaic, here (In Spanish)

Professor Jenny Carroll

Professor Jenny Carroll in the Asbury Park Press on Fourth Amendment Search and Seizure Under the Caretaking Exception

April 01, 2012

Professor Jenny Carroll appeared in the Asbury Park Press, offering background legal analysis and commentary on a New Jersey Supreme Court case recently argued regarding warrantless search and seizure under the community caretaking exception. The case, which stems from police investigating complaints of noise at a party in Long Branch, held that police exceeded their authority when, after being given entrance to the first floor of the house by a party-goer, one police officer commenced searching for any actual resident of the house on the third floor, without exhausting efforts among the throng of people contained on the first floor. On the third floor, the police officer is said to have found two ecstasy tablets along with a scale and plastic baggies in plain view inside one of the bedrooms. That evidence has now been excluded.

The Appeals Court noted that while the venturesome police officer was searching the third floor, his partners were able to identify a house resident on the first floor “within 5-10 minutes.” The prosecution had argued that by having a party at the house (a house in which parties were often held), the residents had “opened” the house and thereby lost their expectation of privacy. The Appellate Court did not accept that argument, and found the policeman’s search of the third floor under the circumstances to be unreasonable. The New Jersey Supreme Court heard arguments, but has yet to decide.

The Asbury Park Press noted,

The touchstone of the Fourth Amendment is reasonableness, said Jenny Carroll, a professor of law at Seton Hall University School of Law in Newark.

“The idea is that within homes or within our person, there’s an expectation of privacy, and the state can’t invade that privacy under ordinary circumstances,” she said.

There may be times when courts recognize that entry without a warrant is needed, but the reason for that entry always has to be reasonable, she said.

In this case, Carroll said, one of the big issues is: How reasonable were the actions of the police officer?

Professor Carroll also noted that

…this case is one of several recent cases nationwide that center on the Fourth Amendment, including a recent U.S. Supreme Court decision that said police should have gotten a warrant before attaching a GPS tracking device to a suspect’s car.

“It’s a really interesting case, and I think part of the reason why, is that a lot of the Fourth Amendment jurisprudence is in play right now.”

 Read the full Asbury Park Press article, How Far Can Police Go When Invited Into A Home?, here

Professor John Coverdale

Professor John Coverdale On NPR’s ‘Tell Me More’ Regarding Religion and Politics

March 30, 2012

Professor John Coverdale appeared on NPR’s ‘Tell Me More’ regarding religion and politics and discussed the impact that faith may have in setting political agendas and, using himself as an example, cast doubt upon the premise that membership in a particular group dictates either ‘conservative’ or ‘liberal’ labels

Professor John Coverdale appeared on NPR’s ‘Tell Me More’ regarding religion and politics and discussed the impact that faith may have in setting political agendas and, using himself as an example, cast doubt upon the premise that membership in a particular group dictates either “conservative” or “liberal” labels

Professor Coverdale is, as noted by the interviewer, a long-time member of Opus Dei who has written two books on the subject, and worked at the Vatican. Notably, Professor Coverdale also clerked for United States Supreme Court Justice Antonin Scalia when he sat on the DC Circuit.

Regarding the confluence of religion and politics and the assertion that membership in Opus Dei equates to “conservative,” Professor Coverdale:

LYDEN: Would you say that you, in general, fear that religion is getting too politicized?

COVERDALE: No. I don't think I would. I think that our whole national life is, in some ways, getting too polarized. I guess I'd like to just comment a little bit. Both you and John Allen kind of repeatedly used the word conservative with regard to Opus Dei.

Now, as a group within the church, Opus Dei, I think, is in many ways quite revolutionary. Certainly at the time that our founder, Saint Josemaria, began preaching this message that everyone is called to sanctity, people looked askance at him and said, no, no, no; if you want to be really dedicated to God, you have to be a priest or a nun, you can't be out there as a banker or a lawyer or something like that.

On the political spectrum, I think what happens is that, you know, we all tend to put people in cubbyholes. So for instance, I'm a tax professor and I am very much in favor of ending the preferences for capital gains. I'm very much in favor of much more steeply progressive taxation than we now have. On the issue that's being so much debated these days about health care, I would favor a single provider system. All of those, I think, are liberal positions.

On the other hand, I am a pro-life person and I do support traditional marriage and the majority - perhaps all the members of Opus Dei would stand fairly firm on pro-life issues, on marriage. And you then get kind of put into the box and say, oh, well, then you're conservative. Well, but what about the rest of my positions? I'm not conservative on those.

LYDEN: Do you find it difficult to vote for either a Republican or a Democrat?

COVERDALE: As a matter of fact, I do. I kind of hold my nose at the end of the day and make my choice.

 Read the full National Public Radio transcript or listen to the interview, Member: Opus Dei Focused On Religion Not Politics, here

Professor Kip Cornwell

Professor Kip Cornwell in the Asbury Park Press on ‘Stand Your Ground’ Laws

March 30, 2012

Professor Kip Cornwell appeared in the Asbury Park Press regarding the so called “Stand Your Ground” laws in reference to the shooting death of Trayvon Martin. Florida, notably, has a Stand Your Ground Law; New Jersey does not.

The Asbury Park Press notes,

“Under the Stand Your Ground law,” said Kip Cornwell, a professor in criminal law at Seton Hall University Law School, “whenever you are facing a threat to yourself of death or serious bodily harm, you can stand your ground, you can use deadly force, even if you can retreat in safety.”

….Cornwell said Stand Your Ground laws are geared toward victims, so they aren’t penalized “because they made what in retrospect was a bad choice under terrible circumstances. The flip side is, they took someone’s life when there was no need to do so, and they should be responsible.” Only a minority of states have laws containing the so-called duty to retreat before using deadly force, Cornwell said.

 Read the full Asbury Park Press article, N.J. stands ground on deadly force, here

Professor Mark Alexander

Professor Mark Alexander feature Column in Huffington Post on Health Care Reform

March 30, 2012

Professor Mark Alexander published a feature column in the Huffington Post entitled, “Health Care Day in D.C.,” recounting the experience of D.C. while the U.S. Supreme Court sat for its second day of oral arguments.

Professor Alexander writes:

I am proud that I have stayed involved in government and politics, while rooted in my life as a law professor. And I am proud that I worked as Policy Director on Barack Obama's presidential campaign, helping to craft a health care plan. The plan from the campaign was not the same as what was passed and signed into law, but I was hoping that it would bring about change that has been too long in waiting. Generations of Americans have waited. Countless Americans have died too soon for want of health insurance, been bankrupted by medical bills, or denied coverage they thought they had. So while I don't agree with Sen. Boozman in his desire to repeal the law, I do agree with his central concern -- the people aren't happy with the status quo. I hope the Congress and the president are ready to respond, whatever the Court says. Regardless of the final proclamation from the Court, the stakes are too high, and the need is too pressing to ignore.

 Read the full Huffington Post column, Health Care Day in D.C., here

Professor Stephen Lubben

Professor Stephen Lubben  In the New York Times on Exchange Traded Notes

March 29, 2012

Professor Stephen Lubben, who writes a regular column for the New York Times’ DealBook page, most recently offered an article pointing to the recent volatility and difficulties, from a number of perspectives, with a debt instrument known as an ‘Exchange Traded Note.’

Professor Lubben notes of the Exchange Traded Note:

The basic idea is that exchange traded notes compete with exchange traded funds. An exchange traded fund is a mutual fund that trades daily, which means that the fund owns its underlying investments. An exchange traded note, on the other hand, offers similar performance, but in the form of a note issued by a financial institution. Thus, the exchange traded note is just a debt instrument that mimics some specific type of mutual fund.

The reason I’ve been concerned with exchange traded notes is that they amount to entering into a total return swap with the financial institution. I have my doubts about the wisdom of selling total return swaps to retail investors.

Moreover, in recent years there has been regulatory pressure to move most derivative trades to central clearing parties and to collateralize these trades with margin, often held by third-parties. Exchange traded notes exhibit none of these characteristics. They also don’t benefit from the special treatment of swaps under the bankruptcy code, and other insolvency laws.

Instead, the buyer of the exchange traded note takes on its investment risk along with a big barrel full of counterparty risk, too. And perhaps some market or liquidity risk as well, as we’ve seen in recent days.

In short, an exchange traded note can be seen as a total return swap, sold to retail investors, that lacks all of the regulatory innovations that have developed over the past few years.

What could possibly go wrong with that?

 Read the full NY Times article, The Trouble With Exchange Traded Notes, here

Professor Mark Denbeaux

Professor Mark Denbeaux in Harper’s Magazine on Latest GTMO Detainee Deaths

March 28, 2012

Professor Mark Denbeaux, Director of the Center for Policy & Research, appeared in Harper’s Magazine regarding the latest deaths in GTMO, said to be suicides. A probing and acclaimed Center for Policy & Research report, “Death in Camp Delta,” examined the alleged suicides of three GTMO detainees on June 10, 2006. A Harper’s Magazine article, “The Guantanamo ‘Suicides,’” relying on “Death in Camp Delta,” and interviews with whistleblower Army Staff Sergeant Joseph Hickman, won the prestigious National Magazine Award for Excellence in Reporting. The award, known as the “Ellie,” is sponsored by the American Society of Magazine Editors, the principal organization for magazine journalists in the United States, in association with the Columbia University Graduate School of Journalism.

Of this round of suicides, Scott Horton of Harper’s notes,

I asked professor Mark Denbeaux of Seton Hall Law School, who has directed a series of studies on prisoner deaths at Guantánamo, what he thought of the latest developments. “Once again,” he replied, “a report of suicide, a questionable autopsy, and no investigation. It is deeply troublesome.”

 Read the full Harper's Magazine article, U.N. Official Presses Query into Gitmo Deaths, here

Professor Jenny Carroll

Professor Jenny Carroll featured in The New Jersey Law Journal, Star Ledger and Asbury Park Press

March 23, 2012

Professor Jenny Carroll was featured in The New Jersey Law Journal (NJLJ), Star Ledger and Asbury Park Press on three different issues: juror contempt for internet research during deliberations, the admissibility of social media and text messaging, and her take on key aspects of the Dharun Ravi verdict.

In the NJLJ, she commented on the matter of a juror charged with contempt, “the first known New Jersey case of a juror punished for doing his own internet research.” The juror researched while engaged in deliberations as jury foreman, resulting in a mistrial in the underlying case. Because the Bergen County Prosecutor declined to prosecute the juror contrary to the order of the court, the judge functioned as both prosecutor and fact finder, and ultimately imposed a $500 criminal contempt sanction on the juror.

The NJLJ writes: “ Jenny Carroll, a criminal law and procedure professor at Seton Hall Law School whose scholarship focuses on the role of the jury, says ‘the real threat of the Internet is misinformation rather than access to information.’ She suggests Kaminsky may have been "doing exactly what we want a juror to do: take this as a serious job."

In the Star Ledger, Professor Carroll was quoted at length regarding her impressions of the Dharun Ravi trial and the law under which he was convicted.

In an article entitled “Verdict in Ravi webcam spying trial becomes 'a cautionary tale,'” the Ledger writes "It’s a cautionary tale," said Jenny Carroll, a professor of criminal law at Seton Hall Law School. "Behavior that used to be considered the norm, or acceptable, has become criminal." The verdict warns us to respect people’s space and their differences, she says, not just because it’s the right thing but because it’s criminal if we don’t. "This will be the end of the ‘boys will be boys’ defense," Carroll said. "That’s what makes this verdict more or different than other verdicts. Every mother who is packing the kid up for college will say ‘You put that webcam away. You may think it’s funny, a prank, but you don’t use it because I’m not going to come and bail you out of jail.’ "

Part of the fascination with the Clementi trial was that most people could relate to the basic details of the case, she said. Millions of U.S. adults remember being college freshmen, struggling to find common ground with new, unfamiliar roommates and neighbors in a residence hall. "The behavior resonated with everyone," Carroll said.

In the Asbury Park Press, Professor Carroll offered commentary on the evidentiary admissibility of social media and text messaging, noting also that a surprisingly large number of younger people seem to function under the belief that statements made through these media are not discoverable.

The Asbury Park Press reports, “Jenny Carroll, a professor at Seton Hall University School of Law in Newark, said many people are not careful about what they post on Facebook. ‘It still amazes me what people think is going to private because they posted it on their Facebook account,’ Carroll said. ‘It’s not private. … This information is far more accessible than most people realize, especially young people who have grown up with this.’”

Professor Paula Franzese

Professor Paula Franzese Featured in the Star Ledger on Ethics Reform Success in New Jersey

March 23, 2012

Professor Paula Franzese, former special ethics counsel to the Governor and Chairwoman of the New Jersey State Ethics Commission from 2006 to 2010, published a feature column in the Star Ledger regarding a report by the Center for Public Integrity, which ranked New Jersey first in the nation for ethics laws. The revamping of New Jersey’s ethics laws was spearheaded by Professor Franzese and former New Jersey Supreme Court Justice Daniel J. O’Hern.

Professor Franzese writes:

A report on ethics laws issued this week by the Center for Public Integrity heralds the significant strides made in New Jersey to advance the cause of good government.

The report, which ranked New Jersey No. 1 for ethics laws, makes plain that sweeping reforms put forth by Gov. Richard Codey in 2005 — and now in place for the executive branch of state government — render the Garden State a national model.

The reforms, recommended by Justice Daniel J. O’Hern and me as special ethics counsel to Codey, resulted in the Uniform Ethics Code, a rigorous state law that contains a series of bright-line rules, including zero tolerance for accepting gifts, a strict anti-nepotism standard, transparency in contracts and purchasing, and stringent post-employment restrictions. State officials’ financial disclosure statements are now posted on a searchable public database. All of those rules are aimed at closing the revolving door of undue influence and unfair advantage, while securing the two cornerstones of good government: transparency and accountability.

 Read the full Star Ledger Op-ed, Progress Good, but More Needed In New Jersey Ethics Reform, here

Professor John Jacobi

Professor John Jacobi On NPR and in the Star Ledger, NJ BIZ, and NJ Spotlight Regarding Health Care Reform and the U.S. Supreme Court

March 22, 2012

Professor John Jacobi appeared on NPR’s WHYY, in the Star Ledger, NJ BIZ, and NJ Spotlight on Health Care Reform, the litigation surrounding it, and the impact that may be felt in its absence, both in general and particularly as it relates to New Jersey.

On NPR’s WHYY, Professor Jacobi spoke about the prospect of severability if the Supreme Court strikes down the Individual Mandate contained within the ACA, noting that the inquiry requires the Supreme Court to determine of Congress, “Did it intend that the rest of the statute go forward if this little piece were to be stricken, or did it intend that the entire statute would fall?” In addition, Professor Jacobi raises the prospect that if the Individual Mandate was stricken, and the rest of the law remained intact, that the Obama administration itself might ask for other provisions with the law, such as the mandate that insurers accept putative insureds with pre-existing conditions, also be removed.

Commenting on the Supreme Court hearings, Professor Jacobi noted for NJ BIZ,

"Oral arguments are just oral arguments, and justices are asking questions because they want to try things out, they want to hear what the advocates have to say about the possible limits of their arguments. The arguments were simply extraordinary, and they revealed a level of openness and suggestions of possible changes in the way the court considers the relationship between the federal government and individuals, and between the federal government and the states, in ways we just haven't considered before."

 Read the full News Works article, Could the Justices Strike Down Part Of The Affordable Care Act?, here

 Read the full NJ Spotlight article, Sen. Vitale Has a Plan (or Two) Ready if Supreme Court Sinks Federal Healthcare Reform, here

 Read the full NJ BIZ article, N.J. Executives Kept A Close Eye On Affordable Care Act Proceedings, here

 Read the full Star Ledger article, As U.S. Supreme Court Prepares To Hear Arguments On Health Care Bill, Industry Says It's Already Reformed, here

Professor Jenny Carroll

Professor Jenny Carroll Featured Op-ed in The Record and NPR commentary

March 21, 2012

Professor Jenny Carroll published a feature Op-ed in The Record, regarding the uneasy application of bias-intimidation laws against Dharun Ravi, and offered commentary and background analysis for NPR’s WNYC regarding Ravi’s media campaign.

In the feature Op-ed in The Record, she writes:

As much as I abhor Ravi’s behavior and applaud the intentions of this law, its application in this case is troubling. There is no question that Ravi was a jerk and possibly a bully, and that he used technology and the internet to accomplish a time-honored college tradition of spying on a roommate.

But I cannot reconcile his behavior with the punishment he is facing and I cannot help but wonder if he is being punished for Clementi’s suicide as much as for his own actions.

In this I am reminded that the criminal code is imprecise in its ability to sort through the nuances of a case.

While the bias-intimidation law may be a mighty tool of justice when it confronts those who would beat a man while yelling a racial epitaph, it is clumsy when confronted with an 18-year-old armed with homophobia, words and a webcam.

For NPR’s WNYC, Professor Carroll analyzed the media campaign Dharun Ravi has waged since his conviction, attempting to tell his side of the story through the press, and thereby allowing him a forum unburdened by evidentiary rules or cross-examination.

Regarding the potential benefit for Ravi, Professor Carroll noted, “If the sense is that there is a surge in the public against giving Ravi a 10-year sentence, then a judge may feel hesitant before he imposes such a harsh sentence.”

 Read the full The Record article, Is Punishment In Webcam Case Excessive?, here.

 Read the full WNYC article, Ravi's High-Profile Media Campaign Both Savvy and Risky, Legal Experts Say, here.

Professor Lori Nessel

Professor Lori Nessel in The Wall Street Journal & The Star Ledger on the Immigration Law Implications for the Dharun Ravi Guilty Verdict.

March 17, 2012

Professor Lori Nessel, Director of the Center for Social Justice, appeared in the Wall Street Journal and The Star Ledger offering commentary and background analysis regarding the implications a finding of guilt may have for Dharun Ravi in an immigration context. Although Darun Ravi grew up in the United States, he was born in India. As such, he may face deportation if the conviction holds on appeal and his sentencing meets certain criteria, including a sentence of a year or more under the evidence-tampering conviction (making it an “aggravated felony” for immigration law purposes, if it is construed as “obstruction of justice”). Professor Nessel, considering these implications, noted for the Ledger that Ravi’s “situation from an immigration perspective is definitely very serious.”

The Wall Street Journal, further notes that

If Ravi is sentenced to a year or more of prison on the evidence-tampering conviction or anything else considered an "aggravated felony" under immigration law, even if the sentence is suspended. "There won't be any relief he can seek, and he'll be barred forever from returning to the country," said Lori Nessel, a professor at Seton Hall University School of Law.

 Read The Wall Street Journal article, Criminal Conviction Could Mean Ex-Student Is at Deportation Risk, here

 Read The Star Ledger article, Experts: Ravi Faces 'Very Serious' Risk of Deportation To India Following Conviction In Webcam Trial, here

Professor Marc Poirier

Professor Marc Poirier On Court TV, NPR, The New York Times, MSNBC, et al.

March 16, 2012

Professor Marc Poirier was featured on Court TV, NPR, The New York Times, MSNBC, The Chronicle of Higher Education, Star Ledger, and The Record regarding the Dharun Ravi trial and verdict, hate crimes, violence and the broader implications the case may have.

NPR notes,

Legal observers who support enhanced sentences for bias-motivated crimes said the verdict still made them uncomfortable because it moved into a new territory of conduct.

Marc Poirier of Seton Hall Law School, who writes on gender and sexuality law, said hate crimes are typically crimes of physical violence or physical threats, and elevating what Ravi did to a hate crime radically shifts what’s considered fair game for prosecutors to pursue.

“I tried using the legal databases to find any other case with facts similar to this, which had resulted in a hate crime or bias intimidation conviction, and there isn’t one that I can find,” Poirier said.

Instead, he explained, almost all hate crime prosecutions in the U.S. have involved violent or persistent acts, such as arson, cross-burning or physical attacks. He finds the expansion of hate crimes to single instances of cyberbullying troubling.

“If we have a system that criminalizes every act that causes deep fear in a targeted group, there is no way of keeping it within bounds,” Poirier said.

Instead, he believes prosecution of hate crimes should be limited to severe, persistent acts that involve physical violence against people or physical acts which demonstrate an intent to commit violence.

Watch the Court TV appearances: Part 1 Part 2

 Read the full WNYC article, Webcam Case Conviction Game Changer for Hate Crime Prosecution, Legal Experts Say, here

 Read the full New York Times article, Rutgers Verdict Repudiates Notion of Youth as Defense, here

 Read the full MSNBC article, Reaction to Rutgers Gay-Spying

Case: From 'Vengeance' To 'Precedent-Setting', here

 Read the full Chronicle of Higher Education article, Jury Convicts Rutgers U. Roommate in Webcam-Spying Case, here

 Read the full The Record article, Aspects of Ravi Webcam Spying Trial Are Called Ripe For Appeal, here

 Read the full Star Ledger article, After 4 Weeks of Testimony, Summations To Begin In Ravi Webcam Spying Trial, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz In the Huffington Post on the Bradley Manning/WikiLeaks Court Martial

March 12, 2012

Professor Jonathan Hafetz appeared in the Huffington Post regarding the Bradley Manning/ WikiLeaks court martial, which could result in life imprisonment for the Army private accused of divulging classified documents.

According to the Huffington Post, in a pre-trial hearing, Pvt. Manning’s attorneys essentially argued that “Manning's treatment in the Marine Corps brig at Quantico was so harsh that his court martial charges should be dropped,” pointing to “conditions that the United Nations' special rapporteur on torture found to be ‘cruel and unusual.’”

The Huffington Post writes:

Jonathan Hafetz, a law professor at Seton Hall University who has also represented prisoners held at Guantanamo, said Manning's treatment was "eerily reminiscent" of conditions there. But he, too, said he doubted that will be enough to set Manning free. Instead, he argued, Manning's lawyer, David E. Coombs, likely has another objective in mind: getting Manning a more lenient sentence if he is convicted.

"It's an effort to kind of give another side of the story," said Hafetz.

Seton Hall Law

Seton Hall Law Again Named a “Top 50 ‘Go-To’ Law School" by the National Law Journal

March 08, 2012

Seton Hall Law was again named a “Top 50 Go-To Law School” by the National Law Journal (NLJ). The NLJ “ranked the top 50 law schools by the percentage of 2011 juris doctor graduates who took jobs at NLJ 250 firms,” the nation's largest law firms.

The National Law Journal ranked Seton Hall Law 39th in the nation. In addition, the NLJ ranked law schools according to most Associates promoted to Partner in 2011 by America’s largest law firms; Seton Hall Law ranked 35th in the nation.

Claudette St. Romain, Associate Dean of Academic Affairs, remarked, “As I’ve said before, perhaps the most interesting thing about this particular ranking is its objectivity. The only opinion reflected is that of the law firms who hired Seton Hall Law graduates – and promoted them to Partner.

Seton Hall Law has strong, longstanding relationships with many of the NLJ 250 firms, and those relationships grow stronger with each graduating class, Associate placed and Partner promoted. We send bright, hard-working, well-prepared graduates to these firms; as those graduates progress and grow in their careers, they look to bring more Seton Hall grads to their firms.”

Read the National Law Journal article, Go-To Law Schools (scroll down chart to #39 for Seton Hall Law)

Read the National Law Journal article, Associates Promoted to Partner (scroll down chart to #35 for Seton Hall Law)

Professor Stephen Lubben

Professor Stephen Lubben on NPR’s ‘All things Considered’ and WNYC Radio.

March 06, 2012

Professor Stephen Lubben was featured on NPR’s nationally broadcast “All Things Considered” and WNYC Radio regarding the emergence of Lehman Brothers from bankruptcy after three years.

NPR notes:

“Though initial claims totaled more than $1 trillion, those were later reduced to around $370 billion.

‘Creditors are getting a fairly decent recovery,’ said Stephen Lubben, a law professor at Seton Hall University who specializes in corporate bankruptcy. “If this has just been liquidated, they would have lost 100 percent.’

On average, creditors will get about 17 or 18 cents for every dollar Lehman owes, though some investors will get more and some less.”

 Listen to the WNYC broadcast, Lehman Returns: Bank Emerges from Bankruptcy 3.5 Years Later, here

Professor Marc Poirier

Professor Marc Poirier on the Jack Ellery Radio Show regarding the Dharun Ravi/Tyler Clementi Trial

March 05, 2012

Professor Marc Poirier, a noted expert in Hate Crime law, appeared on the long running and award winning Jack Ellery Show on WCTC Radio regarding the Dharun Ravi/Tyler Clementi trial. Professor Poirier noted that the Ravi Hate Crime charges were “very atypical” and stated that he was “uncomfortable with the level of the charges and the possibility he is facing 10 years in prison for this.” Professor Poirier, while acknowledging the widespread problems and societal harms presented by bullying, also noted the much greater severity in the fact patterns of most bullying cases which were deemed to have led to victim suicides.

 Listen to the full Jack Ellery Show interview, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz in The Telegraph on GTMO Detainee Khan’s Guilty Plea Before a Military Commission

March 05, 2012

Professor Jonathan Hafetz appeared in the U.K. based Telegraph regarding GTMO detainee Majid Khan, who entered a guilty plea to charges of conspiracy, murder and attempted murder in violation of the laws of war, and to material support for terrorism and espionage.

The Telegraph writes:

Khan, who has spent the last nine years behind bars, faced possible life in prison but will receive a reduced sentence of no more than 25 years as part of a plea agreement that requires him to co-operate with US authorities.

If Khan cooperates fully with prosecutors he can face as little as 19 years in prison, but received no guarantee he would actually be released after his sentence ended.

According to The Telegraph,

“In exchange for the lighter sentence, he will testify against other "high value" detainees, including [Khalid Sheikh] Mohammed and four others alleged to have taken part in the 2001 attacks.

To insure he fulfils his side of the bargain, the sentence will not be handed down for four years, until February 29, 2016.”

Professor Hafetz noted of Khan’s deal

"It's part of a strategy of building more solid cases against the handful of defendants that the government plans to try before the commissions."

Professor Jenny-Brooke Condon

Professor Jenny-Brooke Condon Featured in The Record

February 27, 2012

Professor Jenny-Brooke Condon appeared in The Record, publishing a featured Op-ed on the U.S. Supreme Court’s recent decision regarding law enforcement’s warrantless use of GPS to track the whereabouts of a suspected drug dealer over the course of 28 days. Professor Condon writes:

LAST MONTH, the U.S. Supreme Court issued one of its most significant Fourth Amendment privacy decisions in more than a decade and confirmed that the Constitution protects against intrusive government surveillance made possible by new technology.

Its ramifications may soon be felt in New Jersey when a similar case is heard in state Supreme Court.

In United States v. Jones, the court unanimously agreed that the installation of a GPS monitoring system on a suspected drug trafficker’s car and the use of that device to gather information about the vehicle’s movements for a period of 28 days constituted a “search” subject to Fourth Amendment protection.

But the justices disagreed upon the rationale for that conclusion — setting the stage for an ongoing debate about how to best analyze searches and seizures in the digital age.

 Read the full NAMENorthJersey feature Op-ed, Expectations of privacy - Ruling on spying by GPS, here

Center for Social Justice

CSJ Reaches Settlement in Jail Conditions Case, Featured in the New Jersey Law Journal, the Star Ledger and The Record

February 23, 2012

Described as a “huge victory,” the Center for Social Justice (CSJ) along with the ACLU and attorneys from Dechert LLP came to a settlement in their class action suit on behalf of inmates of the Passaic County Jail, where conditions were so deplorable as to cause a federal judge to label them “shameful” and order the removal of federal prisoners.

The settlement was featured in the New Jersey Law Journal, the Star Ledger and The Record. The Star Ledger recounted some of the case allegations of unconstitutional and inhumane treatment:

“The inmates said they were packed into cells "like sardines," suffered beatings from guards, were forced to eat near toilets and were served food with rat droppings in it.

The lawsuit also said the jail was woefully overcrowded. Designed to house 850 inmates, nearly 1,800 county and federal detainees were packed into the facility in 2007, the lawsuit said.

The jail has been plagued with problems for years.”

Students from the Center for Social Justice did much of the investigative work, forming a basis on which the suit could further proceed, winning class action certification in 2009. The Record notes that

“Complaints about the jail became public after Seton Hall’s Center for Social Justice sent student teams to document its problems. The Center and the ACLU sued in 2008.”

The New Jersey Law Journal similarly observed of the case, Colon v. Passaic County, 08-cv-4439, that

U.S. v. Sutton, 07-cv-426, formed the basis for many of the claims in Colon, as the Center for Social Justice began its own investigation. Law students met with inmates, collected information and otherwise did much of the legwork.

The Colon complaint conjured images of a third-world prison, with backed-up sewage systems, temperatures reaching 100 degrees in the summer, and meals laden with rodent feces that inmates were forced to eat just feet away from toilets because of overcrowding.

The New Jersey Law Journal notes that “Patricia Perlmutter, a Seton Hall attorney who worked on the case, says the population has since decreased and conditions have improved partly ‘because of the pressure of this litigation.’”

But as The Record noted, ACLU-NJ Deputy Director Jeanne LoCicero stated “They’ve made steps, but there’s a long way to go. We think it could take up to five years.”

In an article by the ACLU, Seton Hall Law and CSJ Associate Professor Jenny-Brooke Condon summed it up: “Conditions at Passaic County Jail before the lawsuit were so deplorable as to be called ‘shameful’ by a federal judge and were considered so punitive that U.S. Marshals removed all federal prisoners from the jail. The agreement promises comprehensive changes in the facility and its operations.”

As part of the agreement:

1. A corrections professional will serve as an independent monitor to evaluate the jail’s implementation of remedies and provide technical assistance for up to five years.
2. The jail will be prohibited from contracting with other jurisdictions to house inmates.
3. The jail must configure beds (including restrictions on the use of triple bunking) to promote inmate health and safety. These changes, accompanied by efforts to keep the average census below 1022, will insure sufficient space between bunks and toilets and urinals and maximize available floor space.
4. The jail will complete the planned upgrades to the jail’s heating, ventilation and air conditioning (HVAC) systems and fire prevention infrastructure, which it began during litigation to comply with the New Jersey Uniform Fire Safety Act, and it will ensure plumbing and electrical systems are in working order.
5. The jail will improve the delivery of its medical services and provide timely access to specialty care and chronic disease treatment, in addition to upgrading its medical records systems and obtaining medical accreditation.
6. The jail will screen and treat mental illness among inmates more aggressively, including through programs to place inmates on special watch and to prepare mentally ill prisoners for discharge back into the community.
7. The jail will overhaul its prison management procedures, adding closed-circuit television surveillance to monitor the safety of inmates and staff, modernizing its prison management systems, and rolling out enhanced training and documentation of staff’s use of force.
8. The federal court will retain jurisdiction during the compliance period of the case.

In order to take effect, the settlement must be approved in a fairness hearing scheduled for April 23, 2012 before Judge Dennis Cavanaugh of the U.S. District Court in Newark.

 Read the full New Jersey Law Journalarticle, Passaic County to Remedy Conditions At Jail That Prompted Class Auction, here.

 Read the full The Record article, Rights Advocates Call Settlement Suit Over Passaic County Jail Conditions 'A Huge Victory', here.

 Read the full Star Ledger article, Passaic County Jail To Receive Multimillion-Dollar Overhaul, here.

 Read the full ACLU article, County Agrees to Overhaul Passaic County Jail's Inhumane Conditions, here.

 Read the full Passaic County, CSJ and ACLU-NJ Joint Statement on Settlement, here.

 Read the full District Court Opinion, here.

 Read the full Class Certificate Brief, here.

 Read the full Complaint, here.

 Read the full Passaic County-Fact Sheet, here

James J. Baber

James J. Baber ‘14 in China Law & Policy on ‘Labor Abuses in Zambia’s Chinese State-owned Copper Mines’

February 20, 2012

James J. Baber ’14 published a featured article in the preeminent China Law & Policy blog on the recent Seton Hall Law event, “Labor Abuses in Zambia’s Chinese State-owned Copper Mines.” The event featured Phelim Kine, a Senior Asia Researcher for Human Rights Watch; Mr. Tom Kellogg, Program Director and Advisor to the President of Open Society Institute; and was hosted by Seton Hall Law Professor Margaret K. Lewis, a Public Intellectuals Program Fellow with the National Committee on US-China Relations.

Elizabeth M. Lynch, Editor of China Law & Policy writes:

While Apple’s alleged labor abuses at its factories in China have been the talk of the press – both in the U.S. and in China – ignored has been China’s labor abuses in Africa. But two weeks ago, Seton Hall School of Law, which is quickly establishing its China law credentials in the tri-state area, hosted a timely and informative discussion on labor abuses at Chinese state-owned copper mines in Zambia. Like western consumers – and increasingly China’s middle class – hungry to get their hands on the newest Apple product, China, with its rapid growth, is desperate for natural and mineral resources. Seton Hall‘s event, “Labor Abuses in Zambia’s Chinese State-owned Copper Mines,” examined the issues that arise when a country uses another to feed its insatiable hunger and raised questions about what is the legal and moral responsibility of China in its Zambian mines, the responsibility of the Zambian government to its own people, and the role of the international community, which itself hasn’t shied away from exploiting African nations in a similar manner for their own gain. Below, James J. Baber, a first-year law student at Seton Hall, reports on the February discussion.

 Read the full China Law & Policy article, Labor Abuses in Zambia's Chinese State-owned Copper Mines, here

Professor Barbara Moses

Visiting Clinical Professor Barbara Moses in The Times of Trenton on Proposal to Amend NJ Constitution to Deny Bail to Repeat Violent Offenders

February 19, 2012

Visiting Clinical Professor Barbara Moses appeared in The Times of Trenton regarding a recent proposal by Governor Chris Christie to amend the New Jersey Constitution in order to deny bail to repeat violent offenders who are accused of a new crime. The proposal would allow New Jersey judges to impose what amounts to preventative detention and mirrors the power presently held by federal judges.

The Times reports:

The current system is already so effective at holding people by setting high, cash-restricted bail amounts that, in some cases, defendants have done more jail time awaiting trial than they would likely be sentenced to after trial, according to Barbara Moses, visiting clinical professor at Seton Hall University School of Law.

Noting the egregious effects which can come through what are known as the “collateral consequences” of arrest and imprisonment, The Times notes

“Denial of bail tends to be a devastating blow to any criminal defendant,” Moses said. “Not only does it make it exponentially more difficult for him to mount an effective defense at trial; it has enormous collateral consequences — loss of employment, loss of custody over minor children, etc. — that often cannot be undone even if the charges are later dropped or the defendant is acquitted.”

The Times also considered the effect denial of bail can have on those consequently subjected to pretrial detention:

“Moses said other states that have adopted reforms similar to those floated by Christie have encountered unintended consequences for the fair administration of justice.

‘In states that permit pretrial detention without bail — or that allow judges to set bail so high that impoverished defendants cannot possibly post it — defendants are often presented with plea bargains which require them to plead guilty to charges that they believe are unwarranted in return for relatively short sentences, perhaps equivalent to the time they have already served while awaiting trial,’ she said.

‘Many defendants take those plea bargains in order to get out of jail, notwithstanding the sometimes draconian long-term consequences of having that criminal conviction on their record,’ Moses said.”

 Read the full Times of Trenton article, Controlling Crime: Christie Proposes Changes On How Judges Set Bail, here

Professor Mark Alexander

Professor Mark Alexander, featured in Huffington Post

February 17, 2012

Professor Mark Alexander, a former Senior Advisor to Barack Obama and Policy Director for the successful Obama Presidential Campaign, was featured in the Huffington Post, publishing an Op-ed on the politics of obstructionism entitled “Politics Getting in the Way of Policy”

Professor Alexander writes:

We are living in a time where Congress is getting less and less done, and gridlock has a firm headlock on Washington. At the same time people have lost their homes, their savings, their jobs, and often, their hope. Bottom line: our politics is getting in the way of policy. Our elected leaders don't seem to recognize the moment we're living in. And the consequences are real, and serious.

Read the full article in the Huffington Post, Politics Getting In the Way of Policy, here

Professor Marina Lao

Professor Marina Lao Testified Before Congress on Antitrust and the First Amendment

February 17, 2012

Professor Marina Lao testified before the House Judiciary Committee, Subcommittee on Intellectual Property, Competition, and the Internet, regarding litigation as an anticompetitive predatory strategy and the means by which a narrow reading of Noer-Pennington antitrust immunity doctrine fails to effectively enforce antitrust concerns.

Professor Lao is a member of the Advisory Board of the American Antitrust Institute (AAI), a former chair of the Section of Antitrust and Economic Regulation of the Association of American Law Schools (AALS), and a former attorney at the Department of Justice, Antitrust Division.

Professor Lao’s congressional testimony (full video and transcript below) noted that

The essence of a representative democracy, protected by the First Amendment right to petition, is the citizen’s right to communicate their desires, anticompetitively motivated or otherwise, to government officials. However, when efforts to persuade the government produce anticompetitive effects (harm to competition), they necessarily impinge upon federal antitrust law, creating tension between that law and the First Amendment and related values. The Noerr-Pennington antitrust immunity doctrine was developed in an effort to resolve that tension.

As originally conceived, the Noerr-Pennington doctrine stood for the principle that genuine efforts to persuade the government to adopt a particular course of action are not subject to antitrust scrutiny, no matter how anticompetitive the petitioner’s motive and the action sought. It originated from two U.S. Supreme Court cases that gave the doctrine its name: Eastern Railroad President Conference v. Noerr Motor Freight, which immunized petitioning the legislature; and United Mine Workers of America v. Pennington, which immunized petitioning the executive branch of the government. About a decade later, in California Motor Transport Co. v. Trucking Unlimited, the doctrine was further extended to petitions to courts (and administrative agencies acting in an adjudicatory capacity). There is a “sham” exception to Noerr if the petitioning is considered sham, Noerr immunity would have no application.

My Statement will focus on the current expansive scope of Noerr, and the correspondingly narrow sham exception, as it is applied to judicial petitions. Litigation can be a particularly effective method of predation. Even if it is unsuccessful, it may inflict substantial costs on a competitor and otherwise cause significant competitive harm. I will also address whether such an expansive interpretation of the Noerr doctrine, as applied to judicial petitioning, is required under either the First Amendment right of petition or a statutory construction of the Sherman Act, and conclude that it is not.

Read the written testimony here

Watch Professor Marina Lao’s testimony here (Professor Lao’s testimony and extended colloquy may be found at 47:01, 1:00:33, 1:11:20, and 1:23)

Kevin Marino

Kevin Marino ‘84 in the New York Times for Big Win Before Second Circuit

February 17, 2012

Founding partner of Marino, Tortorella and Boyle, P.C., Kevin Marino ’84, was featured in the New York Times alongside his client, an ex-Goldman Sachs programmer released from prison as a result of Marino’s appeal in a case thought by legal experts to have wide ranging implications for corporate espionage law.

The New York Times reports regarding the court’s decision:

The reversal deals a major blow to the Justice Department, which has made the prosecution of high-tech crime and intellectual property theft a main concern. It is also a loss for Goldman Sachs, which reported Mr. Aleynikov to federal authorities after it accused him of stealing computer code. The bank had portrayed itself as the victim of a brazen crime.

The unusual decision from a three-judge panel of the United States Court of Appeals for the Second Circuit came just hours after hearing his lawyer, Kevin Marino, argue his appeal.

Marino, a member of Seton Hall Law’s Board of Visitors and named Distinguished Graduate in 2010, is quoted by the Times:

“We are pleased and gratified that the court of appeals has roundly rejected the government’s attempt to rewrite the federal criminal laws,” said Kevin Marino, Mr. Aleynikov’s lawyer. “Mr. Aleynikov spent a year in prison and suffered many other losses as a result of these unjust charges, but he never lost faith in his ability to win an acquittal. This is a wonderful day in his life.”

 Read the full NY Times article, Government Dealt Setback in Case Against Ex-Goldman Programmer, here

 Read the full NY Times article, Court Overturns Conviction of Ex-Goldman Programmer, here

 See a Seton Hall Law video profile of Kevin Marino here

Professor Marc Poirier

Professor Marc Poirier on NPR’s Morning Edition and the CBS Evening News

February 16, 2012

Professor Marc Poirier appeared on NPR’s Morning Edition and the CBS Evening News offering analysis and commentary on whether the prosecution’s use of hate crime laws is appropriate in the Dharun Ravi/Tyler Clementi trial, and noting also the extensive reliance on social media in the case.

NPR reports,

“Jury selection is scheduled to begin Friday in the trial of Dharun Ravi. The former Rutgers University student is charged with using a webcam to spy on his roommate Tyler Clementi, who later committed suicide. Ravi faces 15 counts. The most serious charge, bias intimidation, is a hate crime, which carries a possible sentence of 10 years in prison.”

NPR further notes in Joel Rose’s interview with Professor Poirier:

ROSE: Gay rights activists pushed hard for hate crimes charges, which they hope will send a strong message to other would-be bullies. But not everyone thinks the charges are appropriate. Marc Poirier teaches law at Seton Hall University in New Jersey.

MARC POIRIER: It simply doesn't fit the standard model of hate crimes. It's intrusive. It strikes me as stupid roommate stuff. But none of that is particularly violent. Throwing the book at him - at least with regard to the hate crimes, which is what I'm focused on - is problematic.

ROSE: Poirier says it's important to remember that Ravi is not charged with causing Clementi's death.

A point Professor Poirier further stressed on the CBS Evening News, observing that

"When you talk to people on the street or go on the web, it's still often perceived as Ravi did something to cause Clementi to kill himself," said law professor Marc Poirier.

Professor Poirier also commented on the reliance—for both defense and prosecution—of what amounts to a predominately digital record, observing

"I think it's unusual that so much of the evidence is going to turn on tweets and Facebook."

 Listen to the NPR Morning Edition interview, Former Rutgers Student Faces Hate Crime Trial, here

 Watch the CBS Evening News segment, Social Media Spotlighted in Rutgers Suicide Case, here

Professor Paula Franzese

Professor Paula Franzese in the Connecticut Post on the Propriety of Lobbyist Money to Connecticut House Speaker Chris Donovan, Seeking Federal Office

February 07, 2012

Professor Paula Franzese appeared in the Connecticut Post regarding the propriety of an influx of money from lobbyists to Connecticut House Speaker Chris Donovan (D-Meriden). As the article notes, Connecticut’s campaign finance laws usually disallow lobbyist contributions to powerful state office holders such as Speaker Donovan, but because Donovan is seeking a federal office as candidate for a 5th Congressional District seat, the state laws precluding such lobbyist contributions are inapplicable to his federal campaign.

To date, the Post reports that at least $25,000, and perhaps as much as $40,000, has flowed into Donovan’s congressional campaign fundraising coffers, and that the candidate/representative will now “voluntarily halt the flow of lobbyist cash to his congressional campaign while the [Connecticut] Legislature is in session for the next three months.”

Professor Paula Franzese has spearheaded ethics reform initiatives on behalf of three governors, serving as Special Ethics Counsel to Governor Richard Codey, Chair of the State Ethics Commission, Vice-Chair of the Election Law Enforcement Commission and as ethics advisor to state and local governments across the country.

The Post notes,

Professor Paula Franzese of Seton Hall Law School, who focuses on government ethics, said Donovan should have avoided lobbyist funds completely, considering Connecticut's rules, as a show of good faith and high-mindedness.

"In the political arena, the public trust is most essential, and to uphold and honor that trust, I think it is always best for any elected official to do more than is required and less than would be allowed," Franzese said.

 Read the full ctpost article, For Donovan, Lobbyist Bucks Seep Through 'Loophole', here

Professor Kip Cornwell

Professor Kip Cornwell in the Star Ledger on State Attorney General’s Decision to Try Police Officer a Third Time. Learn more>>

February 07, 2012

Professor Kip Cornwell appeared in The Star Ledger, commenting on the state Attorney General’s decision to try a police officer a third time on corruption charges after the second trial, like the first, ended as a mistrial with a hung jury.

The suspended police officer is alleged to have planted drugs and weapons on suspected drug dealers for the purpose of extortion; he is charged with conspiracy, official misconduct and theft.

To retry a third time is highly unusual.

The Ledger reports,

While acknowledging yet another trial is out of the ordinary, state Attorney General spokesman Paul Loriquet said “because of the nature of the serious allegations…we believe a jury should ultimately make a decision on the crimes charged in the indictment.” Seton Hall Law School professor John Kip Cornwell said something else may be inferred from the decision, other than the desire for a conviction.

“Part of the calculus is the message it's sending, that we take police corruption seriously,” Cornwell said of the state's intentions. “It is so unusual to retry someone for a third time that undoubtedly they're saying: we’re going to ferret out corruption and prosecute vigorously. That's the value right there.”

 Read the full The Star Ledger article, Newark Police Officer Accused Of Corruption To Be Tried A Third Time, here

Center for Social Justice

Center for Social Justice Reaches Historic Settlement in Newark Public Schools Special Education Case, featured in Star Ledger

January 31, 2012

The Center for Social Justice, along with co-counsel, the Education Law Center and the Gibbons Fellowship in Public Interest and Constitutional Litigation, settled a historic class-action lawsuit against Newark Public Schools and the State of New Jersey, resolving claims that the District and State had failed in its obligations to appropriately locate, evaluate, and educate children with disabilities.

The settlement, protecting the interests of several thousand Newark children, will result in major improvements in special education services in Newark Public Schools. Students will be able to access special education services on a timely basis and will be provided with compensatory education for services they missed in the past. Highlights of the order include implementation of a comprehensive special education database; mandatory staff training; extensive reporting of compliance activities; guidelines for corrective action; independent monitoring of special education services; and communication with Newark residents about the order and progress made under it.

Professor Shavar Jeffries and the Center’s Urban Revitalization Project represented the parents and children in this matter for almost a decade. In addition to Professor Jeffries, Practitioner-in-Residence Avidan Cover, Clinical Teaching Fellows Jessica Yager and Scott Michelman, and a series of Center for Social Justice clinical students also worked on this case and helped to achieve this result.

Professor Jeffries represented the plaintiff class in this case from 2001-2008, when he recused himself from further involvement upon assuming the role of Assistant Attorney General for the State of New Jersey. His recusal continued thereafter, when he was elected in April 2010 to the Newark Public Schools Advisory Board.

 Read the full Star Ledger article, N.J. Education Department Settles Special-Education Lawsuit, here

Professor John Coverdale

Prof. John Coverdale in Catholic Media Across the U.S.

January 30, 2012

Professor John Coverdale, known widely for his critically acclaimed history of Opus Dei and his work with Saint Josemaría Escrivá, appeared in Catholic media sources throughout the United States in reference to the re-release of the movie There be Dragons and his work as chair of the historical commission in the recently opened cause of canonization for Fr. Joseph Muzquiz, a priest of Opus Dei.

Professor Coverdale, who clerked for United States Supreme Court Justice Antonin Scalia when he sat on the DC Circuit, has been an almost ubiquitous presence in Catholic media, especially radio, over the last months.

Having written what many consider to be the definitive history of the early years of Opus Dei, “Uncommon Faith,” and a biography of one the first three priests ordained by Opus Dei, Fr. Joseph Muzquiz, “Putting Down Roots,” Professor Coverdale is much in demand for commentary regarding the movie There be Dragons and the recently opened cause for Sainthood for Fr. Muzquiz—the first for the Boston Archdiocese.

For The Catholic Connection on the nationally broadcast Ave Maria Radio, and Son Rise Morning Show of Sacred Heart Radio, broadcast nationally and internationally through the EWTN Global Catholic Radio Network, Professor Coverdale discussed the movie, There be Dragons, which was written and directed by Roland Joffe of Captivity, The Mission, and The Killing Fields fame. Set during the Spanish Civil War, it features the early life of the recently (2002) canonized founder of Opus Dei, Saint Josemaría Escrivá. Joffe has said that he made the film because he was "ultimately intrigued by the chance to dramatize the life of a modern-day saint, particularly considering Escrivá's 'liberating' view that a path to God could be found in an ordinary life."

Professor Coverdale lived and worked with Saint Josemaría Escrivá in Rome in the 1960s and later worked with Fr. Joseph Muzquiz, whose cause for sainthood was recently opened by the Church in Boston.

Speaking of Saint Josemaría Escrivá, Professor Coverdale discusses what it’s like to have actually lived and worked with a Saint.

“I, of course, knew, being with him, that he was a man extraordinarily close to God. And a man who, by his presence and his conversation, brought those with him closer to God. And I guess that’s what it is to be a Saint. But still, he was such a warm, vital, vibrant human being that I don’t think I really thought of him with the word, ‘Saint.’ Somehow or other that word seems to suggest people who are very dead—long ago. And he was very much live and present and warm and caring. So to see the Church officially recognize him as a Saint was a marvelous experience.”

Of Father Muzquiz, whose cause for canonization was opened by the Boston Archdiocese in 2011, Catholic News Agency noted,

“The spirit he lived was precisely the spirit of Opus Dei,” said John Coverdale, who wrote a biography of Muzquiz entitled “Putting Down Roots: Fr. Joseph Muzquiz and the Growth of Opus Dei,” and is himself a member of Opus Dei. “That message which comes across very strongly in his life is one that's very important for our society.”

Professor Coverdale worked with Fr. Muzquiz and, in Catholic Online and the Boston Pilot observed that in addition to being "intelligent and hard working," Fr. Muzquiz “was a very cheerful person, an extraordinarily dedicated person who clearly grasped God was calling him to do something. That was the focal point of his life." In an interview on Kresta in the Afternoon, Professor Coverdale noted that he worked closely with Fr. Muzquiz, and like with Saint Josemaría Escrivá, he didn’t necessarily think in terms of the word “Saint,” because although he assuredly felt Fr. Muzquiz’ holiness, “Saint” recalls a piece of statuary. Professor Coverdale further noted that Fr. Muzquiz very much liked chocolate ice cream.

Other interviews include Bishop’s Radio Hour on Immaculate Heart Radio, Sacramento CA; The Drew Mariani Show , Relevant Radio, Green Bay WI; The Morning Show with Mark Amadeo, Norwalk, IA; Morning Air with Sean Herriott, Relevant Radio, Green Bay, WI; A Closer Look with Sheila Liaugminas, Relevant Radio, Wheaton IL; Seize the Day with Gus Lloyd, Sirius Radio, Catholic; Holy Family Radio with Michael Janocik, Louisville, KY; and Mornings with Dina Marie Hale, Portland OR.

 Listen to the Catholic Connection interview here (starts at about ¾ through)

 Listen to the Son Rise interview here (interview starts toward end, at 2:52)

 Listen to the Ave Maria, Kresta in the Afternoon with Al Kresta interview on the Fr. Muzquiz canonization cause here (starts at about ¾ through)

 Read the full Catholic News Agency article, Sainthood Cause Opened for Priest Who Brought Opus Dei to US, here

 Read the full Boston Pilot article, Cause of Canonization Opens for Opus Dei Priest, here

Professor Linda Fisher

Professor Linda Fisher in the Star Ledger on Potential Settlement with Nation’s Largest Mortgage Lenders

January 24, 2012

Professor Linda Fisher appeared in the print edition of the Star Ledger regarding a draft settlement between banks and individual states for allegedly deceptive foreclosure practices which drove homeowners out of their homes. As part of the agreement, The Ledger reports that five major banks, Bank of America, JPMorgan Chase, Wells Fargo, Citibank and Ally Financial, would agree to overhaul lending and foreclosure practices, making it “easier for those at risk of foreclosure to restructure their loans. And roughly one million homeowners could see the size of their mortgages reduced.”

However, the Ledger also reports that

“Those who lost their homes to foreclosure are unlikely to get their homes back or benefit much financially from the settlement, which could be as high as $25 billion. About 750,000 Americans—about half of the households who might be eligible for assistance under the deal—will likely receive checks for about $1,800.”

New Jersey has been particularly hard hit by the foreclosure crisis, and Professor Linda Fisher and the Center for Social Justice has steadfastly advocated on behalf of those subjected to deceptive practices and predatory lending in both the mortgage and foreclosure context. The Ledger reports,

“To those dealing directly with the foreclosure crisis in New Jersey, the settlement is an important precedent, even of its remedies are only ‘a drop in the bucket,’ said Linda Fisher, a Seton Hall Law School professor who works closely with foreclosure cases.

‘It’s not clear yet how broadly the participating banks will be released from future liability in return,’ Fisher said. ‘To broadly release the banks from liability without any serious investigation into the illegal foreclosure practices that occurred during the boom years would be a serious mistake.’”

 Read the Star Ledger article, Deal Forged to Help Protect Home, Sweet Home, here

Kate Greenwood

Research Fellow & Lecturer in Law Kate Greenwood in NJ Biz on New Medical Conflict of Interest Rules

January 18, 2012

Kate Greenwood, Research Fellow & Lecturer in Law, Center for Health & Pharmaceutical Law & Policy, appeared in NJ Biz on recently instituted conflict of interest rules for research institutions that take funding from the National Institutes of Health.

NJ Biz notes that:

The rules revise previous conflict-of-interest regulations implemented in 1995, and in doing so highlight a range of complicated issues, such as the relationship between industry and the academy, the potential for bias in science, and the public's trust in medical research.

In announcing the new rules, NIH Director Dr. Francis S. Collins said the rules ensure research is conducted with the highest scientific and ethical standards.

"Strengthening key provisions of the regulations with added transparency will send a clear message that NIH is committed to promoting objectivity in the research it funds," Collins said.

The new rules lower the monetary threshold at which researchers must report a financial interest, from $10,000 to $5,000. They also require institutions to track such disclosures, and make them available to the public upon request. The rules also shift the onus to deal with potential conflicts to institutions, rather than the scientists themselves. All NIH-funded institutions must comply by August 2012.

NJ Biz also noted that

Kate Greenwood, a researcher and lecturer in law at Seton Hall Law School, said the issue is one of trust and human nature.

"A conflict of interest just creates a risk that your judgment will be affected by a secondary financial interest," Greenwood said. "Your primary interest is supposed to be research integrity, and protecting research participants' safety and welfare."

 Read the full NJ Biz article, New Rules Spark Key Research Questions, here. (Subscription Required)

Nick Stratton ’12 and Lauren Winchester ‘12 featured in the Jurist on GTMO Detainee Habeas

January 14, 2012

Center for Policy & Research Fellows Nick Stratton ‘12 and Lauren Winchester ’12 were featured in the Jurist along with Professor Mark Denbeaux on the impact of Latif v. Obama from an evidentiary perspective. Their Op-ed, “Latif v. Obama: redaction Riddle Resolved,” observes that the recent split decision in the case renders “the right to a meaningful habeas corpus proceeding established in Boumedienne v. Bush, now a nullity.”

 Read the feature Op-ed, Latif v. Obama: Redaction Riddle Resolved, here

Professor Rachel Godsil

Professor Rachel Godsil In The Record on the 10th Anniversary of ‘No Child Left Behind’

January 13, 2012

Professor Rachel Godsil wrote a featured Op-ed for The Record, New Jersey’s most awarded newspaper, on the No Child Left Behind Act. The controversial education initiative recently marked its 10th anniversary as law. Professor Godsil writes

IF THE No Child Left Behind Act were a student, no one would come to its 10th birthday party this month.

NCLB is the know-it-all kid other kids mock: harsh and judgmental rather than generous and supportive, only wants to talk about test scores and totally ignores the challenges other students face.

United about little else, the vast majority of governors, teachers and parents revile the act.

A new organization, United Opt Out, is urging parents to Occupy the DOE to demand an end to high-stakes testing that “punish students or influence teacher pay or job security.” Should NCLB and its demand for accountability be expelled?

 Read the full NorthJersey article, Opinion: No Child Left Behind at 10: Lessons Learned, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz in AsiaOne News, L’Alsace, Cuba Si, DiarioCoLatino and the South China Morning Post on the Ten Year Anniversary of Guantanamo

January 08, 2012

Professor Jonathan Hafetz appeared in numerous papers throughout the world, including AsiaOne News, L’Alsace, Cuba Si, DiarioCoLatino and the South China Morning Post, through an article run by Agence France-Press (AFP), the third largest newswire service in the world. The article dealt with the ten year anniversary of Guantanamo and Professor Hafetz has served as counsel in leading national security habeas corpus cases, including Al-Marri v. Spagone, which involved the military detention of a legal U.S. resident, and Munaf v. Geren, which involved the detention of two American citizens in Iraq, provided Agence France-Presse with background analysis and commentary. AFP notes

"Although President Obama remains committed to the goal of closing Guantanamo, the US Congress has taken action to prevent steps that would assist in the realization of this goal," Pentagon spokesman Lieutenant Colonel Todd Breasseale told AFP.

But Obama's room for maneuver has been severely curtailed. A controversial law, which the president himself signed at the end of December after bitter partisan infighting, de facto prevents the prison from closing.

It bans the use of public funds to transfer detainees to the United States and decrees that terror suspects must be tried before special military commissions.

"Hope is fading. Closing Guantanamo is harder politically and legally because of this legislation detainees are in legal limbo," said Jonathan Hafetz, a law professor from Seton Hall Law School, who represents one inmate.

Only six detainees have been found guilty by military commissions, according to the Pentagon, and seven others - including the self-confessed mastermind of the 9/11 attacks - will appear before the tribunals in the coming months.

 Read the full AsiaOne aritcle (in English),Ten Years On, Guantanamo Still Casts Long Shadow, here

 Read the full L’Alsace aritcle (in French),Dix Ans Après, Guantanamo Reste Une Tache Dans le Paysage Américain, here

 Read the full DiarioCoLatino article (in Spanish),Diez Años Después la Sombra de Guantánamo Es Todavía Larga, here

Professor Paula Franzese

Professor Paula Franzese in the New York Times on the Conflict of Interests Inherent for Lobbyists Who Also Hold Office

January 07, 2012

Professor Paula Franzese appeared in the New York Times in two articles dealing with the propriety (or lack thereof) of registered Illinois lobbyists who also hold public office. In an article entitled “When Office Holders Also Represent Clients, Collisions Are Likely,” the Times notes that

Elected officials who lobby face conflicts of interest when matters coming before them as office holders also affect their paying clients.

In Cook County, the list of elected officials who have also lobbied includes three county commissioners, two Chicago aldermen, the Cook County Democratic Party chairman and even John J. Cullerton, the state senate president since 2009.

Those numbers alarm outside ethics experts.

Mr. Cullerton, a powerful Springfield figure, registers as a lobbyist in Cook County and Chicago, where, as a partner in the law firm Thompson Coburn, he occasionally represents clients before government officials. In 2008, the firm’s Web site highlighted Mr. Cullerton’s government-relations work.

The Times also notes that, despite assurances from such lobbyist/office holders that such forms of representation may be undertaken simultaneously,

Some ethics experts say the solution is to bar lobbying by public officials. “These kind of conflicts should not be permitted,” said Paula Franzese, a Seton Hall law professor and former chairwoman of the New Jersey ethics commission.

In the article published by the New York Times two days later, “Public Officials Found Helping Clients of Family,” the issue moved to familial office holder/lobbyist relationships in Illinois. The Times reports that

Denny Jacobs, a former state senator, had a special ally last year when the state’s largest electric utility company hired him to lobby for a controversial smart-grid energy bill that many say makes it easier for utilities to raise rates.

His son, State Senator Mike Jacobs, chairman of the Senate Energy Committee, sponsored the bill and actively promoted the campaign of the Commonwealth Edison Company, one of his father’s clients, to win its passage.

The downstate utility Ameren Corporation also backed it. “I’m with ComEd and I’m with Ameren on this bill,” Senator Jacobs, a Democrat from East Moline, said in a floor speech. He even took to the floor to invite his colleagues to a reception hosted by ComEd. He denies that his father influenced him.

The smart grid legislation is one of several bills pushed by Senator Jacobs that benefited clients of his lobbyist father, a review of legislation by Medill Watchdog, a journalism program at Northwestern University, found. And Mike Jacobs is hardly the only Illinois public official supporting measures backed by close relatives.

Medill Watchdog examined statements of economic interests of public officials, lobbying registrations filed with the City of Chicago, Cook County and the state, and records of state bills and local ordinances. The investigation found 14 elected officials from Cook County alone who, while not lobbyists themselves, are related to or in business with lobbyists.

The review found more than a dozen instances in which an official took action that benefited the lobbying client of a family member or business partner.

The Times also notes,

“Illinois law is really behind on this,” said Paula Franzese, a Seton Hall law professor and former chairwoman of New Jersey’s ethics commission.

Actual or potential conflicts are widespread, public records show.

 Read the full NY Times article, Public Officials Found Helping Clients of Family, here

 Read the full NY Times article, When Office Holders Also Represent Clients, Collisions Are Likely, here

Professor Frank Pasquale

Professor Frank Pasquale featured in The Record on “A Constitutional Right to Health Care”

January 04, 2012

Professor Frank Pasquale wrote a featured Op-ed in The Record, New Jersey’s most awarded newspaper, regarding a constitutional right to health care. Professor Pasquale, who is Associate Director of the Center for Health & Pharmaceutical Law & Policy, writes:

SHOULD the Supreme Court weigh in on America’s great health care debate? Yes. It should declare a constitutional right to health care.

This right is already enjoyed by prisoners. Law-abiding citizens deserve it, too.

The United Nations’ Universal Declaration of Human Rights states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including... medical care.”

Many advanced countries have adopted — and lived up to — similar commitments.

Of course, that’s not on the Supreme Court’s agenda. Instead, it will decide whether to cripple last year’s health reform, known as the Affordable Care Act, by declaring the individual mandate unconstitutional.

 Read the full article, Opinion: A Constitutional Right To Health Care, here